Department of Labor: 65 79919

Wednesday,
December 20, 2000
Part II
Department of Labor
Employment Standards Administration
20 CFR Part 718 et al.

Regulations Implementing the Federal
Coal Mine Health and Safety Act of 1969,
as Amended; Final Rule
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79920 Federal Register / Vol. 65, No. 245 / Wednesday, December 20, 2000 / Rules and Regulations
DEPARTMENT OF LABOR rule. The rule contains a final regulatory the medical evidence developed in
flexibility analysis as required by the connection with their claims so that
Employment Standards Administration Regulatory Flexibility Act. they were able to make more informed
EFFECTIVE DATE: January 19, 2001. decisions as to how to proceed. The
20 CFR Parts 718, 722, 725, 726, 727 FOR FURTHER INFORMATION CONTACT: Department also noted that it had
RIN 1215–AA99 James L. DeMarce, (202) 693–0046. attempted to ‘‘eliminat[e] the hierarchy
SUPPLEMENTARY INFORMATION: The
of response times’’ at the district
Regulations Implementing the Federal Department’s final rule reprints 20 CFR director level. 64 FR 54992 (Oct. 8,
Coal Mine Health and Safety Act of Parts 718 (except Tables B1 through B6 1999). After the receipt of many
1969, as Amended in Appendix B), 722, 725, and 726 in comments addressing its proposals, the
their entirety. The Department has not Department has determined that a more
AGENCY: Employment Standards comprehensive streamlining of district
Administration, Labor. revised all of the regulations in these
parts. A detailed list of the regulations director procedures is warranted.
ACTION: Final rule. The Department has therefore
to which the Department has made
eliminated the use of initial findings
SUMMARY: On January 22, 1997, the substantive revisions follows the
and the required responses to them, as
Department issued a proposed rule to Summary of Noteworthy Regulations
well as the district director’s initial
amend the regulations implementing the below, accompanied by a list of
adjudication as proposed in §§ 725.410–
Black Lung Benefits Act. 62 FR 3338– regulations to which the Department has
725.413. Similarly, the Department has
3435 (Jan. 22, 1997). When the comment made technical revisions, a list of
altered the rules governing informal
period closed on August 21, 1997, the regulations that the Department has
conferences, § 725.416. If a conference is
Department had received written deleted, and a list of regulations that the
held, no memorandum of conference
submissions from almost 200 interested Department has not changed in any
will result, § 725.417(c). Instead, OWCP
persons, including coal miners, coal manner.
will issue only one decisional document
mine operators, insurers, physicians, Summary of Noteworthy Provisions at the conclusion of the district
and attorneys. The Department also held director’s processing of a claim: in most
hearings in Charleston, West Virginia, District Director Claims Processing
cases a proposed decision and order,
and Washington, D.C. at which over 50 These final regulations implementing § 725.418. The proposed decision and
people testified. The Department the Black Lung Benefits Act provide order will give rise to the thirty-day
carefully reviewed the testimony and simplified administrative procedures for period for requesting a hearing before
the comments and, on October 8, 1999, the adjudication of claims pending the Office of Administrative Law Judges
issued a second notice of proposed before the Office of Workers’ and, if no such hearing is requested, to
rulemaking. 64 FR 54966–55072 (Oct. 8, Compensation Programs (OWCP). The the one-year period for filing a request
1999). In its second notice, the new streamlined procedures are less for modification, § 725.419. The
Department proposed changing several formal and should be easier for claims proposed decision and order will also
of the most important provisions in its participants to understand. They require contain the district director’s final
initial proposal. The Department also the district director to issue fewer designation of the responsible operator
explained its decision not to alter the documents and therefore involve fewer liable for the payment of benefits, and
original proposal with respect to other procedural steps and deadlines. They the dismissal of all other potentially
key regulations based on the comments also require fewer responses from the liable operators that had previously
received to date. Finally, the parties. These changes are in response received notice of the claim.
Department prepared an initial to the many comments the Department The Department hopes that the
regulatory flexibility analysis. In order has received asking that OWCP’s absence of documents with titles such
to ensure that small businesses that procedures be simplified and made less as ‘‘initial findings’’ and ‘‘memorandum
could be affected by the Department’s formal and adversarial. of conference’’ will encourage a less
proposal received appropriate notice of In its initial notice of proposed adversarial and less formal development
the Department’s proposed changes, the rulemaking, the Department announced of the necessary evidence and will
Department mailed a copy of the second its intent to amend these regulations promote more timely evidentiary
notice of proposed rulemaking to all with the goal of helping to improve development. As previously proposed,
coal mine operators contained in the services, streamline the adjudication the district director will engage in a
databases maintained by the Mine process and simplify the regulations’ preliminary gathering of the relevant
Safety and Health Administration. language. The Department noted evidence. He will develop medical
The Department initially allowed OWCP’s many years of experience evidence, including the complete
interested parties until December 7, administering the program and the pulmonary evaluation, §§ 725.405–
1999 to file comments to its second variety of ideas for change which had 725.406. He will identify and notify
proposal, but extended that period until resulted from it. 62 FR 3338 (Jan. 22, those coal mine operators among the
January 6, 2000. The Department 1997). In the second notice of proposed claimant’s former employers which he
received 37 written submissions before rulemaking, the Department emphasized deems to be potentially liable operators,
the close of the comment period, from its commitment to improve the quality § 725.407, and gather evidence from
groups representing both coal miners of the information it provides the parties them regarding their employment of the
and coal mine operators. The to a black lung claim. As part of this miner and their status as operators,
Department also received comments commitment, the Department noted its § 725.408. At the conclusion of this
from individual miners, various coal intent to substantially rewrite the evidence-gathering, however, rather
mining and insurance companies, as documents used by district directors to than issue an initial finding (a
well as from claims processing notify parties of the ‘‘initial findings’’ on document with the appearance of a
organizations, attorneys, and various their claims. The Department stated its preliminary adjudication of the claim),
professional organizations. The goal was to help make claim processing the district director will issue a
Department has carefully reviewed all of by district offices easier to understand schedule for the submission of
the comments, and is issuing its final and to give claimants a clear picture of additional evidence, § 725.410. This
Federal Register / Vol. 65, No. 245 / Wednesday, December 20, 2000 / Rules and Regulations 79921
document will contain a summary of the addition, fewer parties are required to the imposition of sanctions,
results of the complete pulmonary respond to the schedule since the § 725.416(c). These sanctions may
evaluation and the district director’s claimant need not respond at all. include denial of the claim by reason of
preliminary analysis of that evidence. By contrast, if the district director abandonment, § 725.409(a)(4). In the
The analysis will include a discussion concludes that there is no operator event an ALJ ultimately reviews the
of any of the elements of entitlement responsible for the payment of benefits denial by reason of abandonment and
that appear not to have been established and that the results of the complete concludes that it was improper, he may
and why. The schedule will also contain pulmonary evaluation support a finding proceed to address the merits of the
the district director’s designation of a of eligibility, the district director shall claim, but only with the written
responsible operator liable for the issue a proposed decision and order agreement of the Director, § 725.409(c).
payment of claimant’s benefits. If the awarding the claimant benefits,
designated responsible operator is not § 725.411. In such a case, no schedule In most cases, however, at the
the miner’s last employer, the district for the submission of additional conclusion of either the evidentiary
director will include with the schedule evidence is necessary, and no claimant development period or informal
the statements necessary to comply with response to the proposed decision and conference proceedings, the district
§ 725.495(d). order is required. director will issue a proposed decision
The schedule will allow the claimant At the conclusion of the time and order setting forth his findings and
and the designated responsible operator scheduled for the submission of conclusions with respect to the claim. In
not less than 60 days to submit additional evidence, § 725.415(b), the order to reduce the delay caused by
additional evidence, including evidence district director may either notify informal conferences, the regulations
relevant to the claimant’s entitlement to additional operators of their potential require issuance of a proposed decision
benefits and the employer’s liability for liability for benefits under § 725.407, and order within 20 days after the
them. The schedule will also allow at issue another schedule for the conclusion of all informal conference
least an additional 30 days within submission of additional evidence proceedings, § 725.418(a). The proposed
which to respond to evidence the other identifying another potentially liable decision and order will contain the
party submits, § 725.410(b). These time operator as the responsible operator district director’s final designation of
periods may be extended for good cause liable for the payment of benefits, the responsible operator liable for the
shown, § 725.423. The district director § 725.410, schedule a case for an
payment of benefits, and will dismiss,
will serve the schedule by certified mail informal conference, § 725.416, or issue
as parties to the claim, all other
on all parties and will include with it a proposed decision and order,
§ 725.418. In the event the district potentially liable operators that received
copies of all relevant evidence,
director issues another schedule for the notification pursuant to § 725.407. Any
§ 725.410(c). The schedule will also
inform the claimant and the designated submission of additional evidence party may request a hearing within 30
responsible operator of their rights, pursuant to § 725.410, the district days of issuance of the decision and
including the right to submit additional director shall not permit the order, § 725.419(a). If no party responds
evidence and the right to further development or submission of any to the proposed decision, it shall
adjudication of the claim, additional medical evidence until after become final and effective upon the
§ 725.410(a)(4). Finally, the schedule he has determined the responsible expiration of the 30-day period and no
will notify the claimant that he has the operator liable for the payment of further proceedings with respect to the
right to obtain representation and that, benefits. If the operator determined to claim shall be possible, except for the
if the designated responsible operator be the responsible operator has not had filing of a request for modification,
fails to accept the claimant’s entitlement the opportunity to submit medical § 725.419(d).
within the specified time and the evidence, the district director shall The Department hopes that this
claimant establishes his entitlement to afford that operator the opportunity simplified procedure will reduce, if not
benefits payable by that operator, the outlined in § 725.410. The designated eliminate, hearing requests filed before
responsible operator will be liable for a responsible operator may elect to adopt the conclusion of a district director’s
reasonable attorney’s fee. any medical evidence previously claims processing. In the event a hearing
The new procedure requires a submitted by another operator as its request is filed before a district director
responsible operator to respond within own, subject to the § 725.414 has concluded his adjudication of the
30 days as to the liability designation in limitations.
claim, however, OWCP will honor the
the schedule, § 725.412(a)(1). Silence on The regulations also contain
significant modifications to the informal request at the conclusion of processing
the responsible operator’s part will be
conference procedure in order to reduce in the absence of a party’s affirmative
deemed an acceptance of the district
director’s designation as to its liability. delay and to ensure that conferences are statement that it no longer desires a
Silence on the operator’s part with held only in appropriate cases. Thus, if hearing. Thus, if a claimant has
respect to claimant’s entitlement, an informal conference is scheduled, it previously requested a hearing and has
however, will be deemed a must be held within 90 days of the been denied benefits in a proposed
controversion. If the operator wishes to conclusion of the evidentiary decision and order, the case will be
accept a claimant’s entitlement to development period unless a party forwarded to the Office of
benefits, it must file a statement requests that it be postponed for good Administrative Law Judges for hearing
indicating this intent within 30 days of cause, § 725.416(a). A district director in the absence of a statement that a
issuance of the district director’s may schedule a conference only if all hearing is no longer desired. Similarly,
schedule, § 725.412(b). Thus, this the parties to a claim are represented or if an operator has previously requested
schedule requires a less comprehensive deemed represented, although lay a hearing, and the proposed decision
operator response than the initial representation is sufficient, § 725.416(b). and order awards the claimant benefits,
findings would have. The responsible If all the pertinent requirements are met, OWCP will forward the claim for
operator must file a response only to however, and an informal conference is hearing absent a statement from the
contest its liability and/or to accept a scheduled, the unexcused failure of a operator that it no longer desires a
claimant’s entitlement to benefits. In party to appear constitutes grounds for hearing, § 725.418(c).
Evidentiary Development medical evidence in a claim. The district director to clarify and/or
Department has also deleted one supplement an initial report if
Documentary Evidence
provision of proposed § 725.414, unresolved medical questions remain.
With one substantive addition and § 725.414(e), as well as the comparable In addition, the components of the
several deletions, these final rules provision proposed as § 725.456(c). complete pulmonary evaluation are to
implement the Department’s second These subsections would have provided be in substantial compliance with the
proposal with respect to the that any evidence obtained by a party applicable quality standards and the
development of both documentary while a claim was pending before a district director retains authority
medical evidence and evidence district director but withheld from the elsewhere in § 725.406 to schedule the
pertaining to operator liability. The district director or any other party shall miner for further examination or testing
designated responsible operator may not be admitted into the record in any to ensure compliance with these
submit documentary medical evidence later proceedings in the absence of standards.
either to the district director or to the extraordinary circumstances unless its In the second notice of proposed
administrative law judge (ALJ) up to 20 admission is requested by another party. rulemaking, the Department also
days before an ALJ hearing, or even Commenters opposed these provisions, announced its intent to perform the best
thereafter, if good cause is shown. and the Department has agreed to delete possible respiratory and pulmonary
Documentary medical evidence may them. The Department believes they are evaluation of miners applying for
only be submitted up to the numerical no longer necessary, given the benefits. The Department promised a
limitations outlined in §§ 725.414(a), significant alteration in the district thorough examination, performed in
however, absent a showing of good director’s methods for gathering compliance with the quality standards,
cause, § 725.456(b). Thus, each side in evidence under the new regulations, see in order to provide each claimant with
a claim may submit two chest x-ray preamble to § 725.456. In addition, these a realistic appraisal of his condition and
interpretations, the results of two rules would have posed a danger to the district director with a sound
pulmonary function tests, two arterial parties who are unrepresented before evidentiary basis for a preliminary
blood gas studies and two medical the district director and might have run evaluation of the claim. The Department
reports as its affirmative case. In afoul of the rules unintentionally. also announced its intent to develop
addition, each party may submit one more rigorous standards for physicians
piece of evidence in rebuttal of each Complete Pulmonary Evaluation who perform complete pulmonary
piece of evidence submitted by the With one exception, these final rules evaluations. The Department invited the
opposing party. Finally, in a case in implement the Department’s second interested public to comment on the
which rebuttal evidence has been proposal with respect to the possible standards that might be used to
submitted, the party that originally administration of the complete select physicians and facilities, 64 FR
proferred the evidence which has been pulmonary evaluation required by 30 54988–54989 (Oct. 8, 1999).
the subject of rebuttal may submit one U.S.C. 923(b). The Department will The comments the Department
additional statement to rehabilitate its allow each claimant to select the received are discussed in detail in the
evidence. physician or facility to perform his preamble to § 725.406. It is the
By contrast, documentary evidence as evaluation from a list of authorized Department’s intent, however, to
to operator liability must be submitted providers maintained by the include in its Black Lung Program
to the district director, absent a showing Department. The list in each case will Manual the requirements for a
of exceptional circumstances, include all authorized physicians and physician’s or medical facility’s
§§ 725.408(b)(2), 725.414(d), 725.456(b). facilities in the state of the miner’s inclusion on the list. The Manual is
There is no limit on the amount of such residence and contiguous states, available to the public in every district
evidence that may be submitted, § 725.406(b). The Department will also office of OWCP. Thus, the requirements
however. make available to the claimant’s treating for participation in OWCP’s program
At the urging of commenters physician, at the claimant’s request, the and the manner in which the
representing both industry and results of the objective testing Department has used those
claimants, the Department has made one administered as part of the complete requirements to select physicians for
addition to § 725.414(a). The pulmonary evaluation and will inform inclusion on the approved list will be
Department has added a specific the claimant that any opinion submitted public information. The Department
limitation on the amount of autopsy and by his treating physician will count as does not intend to screen the contents
biopsy evidence which may be one of the two medical reports that the of physicians’ prior reports and
submitted in a claim. Each side may miner may submit, § 725.406(d). testimony before including them on the
submit one autopsy report and one The Department has not included in list. The Department intends only to
report of each biopsy as part of an the final regulation at § 725.406, ascertain that the required professional
affirmative case. Each side may submit however, the provision proposed as credentials are present.
one autopsy report and one report of subsection (e) which would have
each biopsy in rebuttal of the allowed the district director to require Witnesses
opponent’s case. Finally, where the the claimant to be reexamined after the These final rules adopt the provisions
original autopsy or biopsy evidence has completion of the complete pulmonary governing witness testimony proposed
been the subject of rebuttal, the party evaluation if the district director in the Department’s second notice of
that submitted the original report may believed that unresolved medical proposed rulemaking. No person shall
submit an additional statement from the questions remained. Commenters from be permitted to testify as a witness at a
physician who authored that report. both industry and claimants’ groups hearing, pursuant to deposition or by
The Department has deleted language opposed this provision, and the interrogatory unless that person meets
throughout § 725.414 referring to Department has concluded it is no the requirements of § 725.414(c). Thus,
potentially liable operators since only longer necessary. The complete in the case of a witness offering
the designated responsible operator pulmonary evaluation will now be testimony relevant to the liability of a
and/or the Trust Fund will have the performed by a highly qualified potentially liable operator or the
authority to develop documentary physician who may be asked by the identification of a responsible operator,
the witness must have been identified relative merits of the other relevant due to pneumoconiosis. This change is
while the claim was pending before the medical evidence of record. discussed in detail in the preamble at
district director in the absence of § 718.204. The Department has also
Definition of Pneumoconiosis and
extraordinary circumstances, adopted one important proposed change
Establishing Total Disability Due to
§ 725.457(c)(1). In the case of a with respect to the clinical evidence
Pneumoconiosis
physician offering testimony relevant to which may be used to establish total
the physical condition of the miner, the The Department has adopted the disability, see preamble to § 718.103.
physician must have prepared a medical proposed definition of pneumoconiosis The Department has concluded that the
report submitted into evidence. without alteration. In the preamble to claims adjudication process would
Alternatively, the party offering the § 718.201, the Department explains that benefit by making mandatory the use of
physician’s testimony must have the term ‘‘legal pneumoconiosis’’ does
the flow-volume loop in pulmonary
submitted fewer than two medical not create a new medical diagnosis, but
function testing (spirometry testing).
reports into evidence in which case the rather reflects the statute’s definition of
The Department has previously noted
physician’s testimony shall be the disease as ‘‘a chronic dust disease of
the lung and its sequelae, including that the test, conducted in this manner,
considered a medical report for the provides a ‘‘more reliable method of
purpose of the evidentiary limitations in respiratory and pulmonary
impairments, arising out of coal mine ensuring valid, verifiable results
§ 725.414(c). A party may offer the
employment.’’ 30 U.S.C. 902(b). The * * *.’’ 64 FR 54975 (Oct. 8, 1999). In
testimony of more than two physicians
preamble also explains in detail the the second notice of proposed
only upon a finding of good cause,
Department’s decision to include rulemaking, the Department announced
§ 725.457(c)(2).
chronic obstructive pulmonary disease its intent to conduct a survey of
Treating Physicians’ Opinions in the definition of pneumoconiosis to physicians, clinics and facilities which
The Department has adopted a rule the extent it is shown to have arisen perform pulmonary function testing to
governing the weighing of treating from coal mine employment. The evaluate the prevalence of spirometers
physicians’ opinions similar to the one Department attempts to clarify that not capable of producing a flow-volume
proposed in its second notice of all obstructive lung disease is loop. The Department has now
proposed rulemaking, § 718.104(d). The pneumoconiosis. It remains the evaluated the results of its survey and
rule is discussed in detail in the claimant’s burden of persuasion to has concluded that the prevalence of the
preamble to § 718.104. The language of demonstrate that his obstructive lung necessary equipment and the
§ 718.104(d) has been altered to provide disease arose out of his coal mine willingness of those physicians who do
that, in appropriate cases, the employment and therefore falls within not currently have it to buy it, warrant
relationship between the miner and his the statutory definition of the mandatory usage of such equipment.
treating physician may constitute pneumoconiosis. The Department has
substantial evidence in support of the concluded, however, that the prevailing Subsequent Claims
adjudication officer’s decision to give view of the medical community and the These final rules adopt the regulation
that physician’s opinion controlling substantial weight of the medical and governing subsequent claims that was
weight. See § 718.104(d)(5). The rule’s scientific literature supports the proposed in the Department’s second
purpose is to recognize that a conclusion that exposure to coal mine notice of proposed rulemaking. A
physician’s professional relationship dust may cause chronic obstructive
subsequent claim is an application for
with the miner may enhance his insight pulmonary disease. Each miner must
benefits filed more than one year after
into the miner’s pulmonary condition. A therefore be given the opportunity to
the denial of a previous claim. It may be
treating physician may develop a more prove that his obstructive lung disease
adjudicated on its merits only if the
in-depth knowledge and understanding arose out of his coal mine employment
claimant demonstrates that an
of the miner’s respiratory and and constitutes ‘‘legal’’ pneumoconiosis.
pulmonary condition than a physician The Department has also adopted the applicable condition of entitlement has
who examines the miner only once or proposed regulation defining total changed in the interim. In the second
who reviews others’ examination disability and disability due to proposal, the Department justified the
reports. Section 718.104(d) is not an pneumoconiosis with one alteration, rule by noting that ‘‘allowing the filing
outcome-determinative evidentiary rule, § 718.204. To clarify its original intent of a subsequent claim for benefits which
however. It does not preclude concerning the extent to which alleges a worsening of the miner’s
consideration of other relevant evidence pneumoconiosis must contribute to a condition, * * * merely recognizes the
of record. Rather, it provides criteria for miner’s total disability, the Department progressive nature of pneumoconiosis.’’
evaluating the quality of the doctor- has amended the language of 64 FR 54968 (Oct. 8, 1999). In the
patient relationship. The criteria at §§ 718.204(c)(1)(i) and 718.204(c)(1)(ii) preamble to § 725.309, the Department
§ 718.104(d)(1)–(4) are indicia of the by adding the words ‘‘material’’ and responds in detail to those commenters
potential insight the physician may ‘‘materially.’’ Thus, a miner has who oppose the regulation. They argue,
have gained from on-going treatment of established that his pneumoconiosis is a in part, that the Department’s
the miner. The rule is designed to force substantially contributing cause of his recognition of pneumoconiosis as a
a careful and thorough assessment of the disability if it either has a material latent and progressive disease is
treatment relationship. If the adjudicator adverse effect on his respiratory or scientifically unsound. The Department
concludes the treating physician has a pulmonary condition or materially has summarized the scientific and
special understanding of the miner’s worsens a totally disabling respiratory medical evidence supporting its view
pulmonary health, that opinion may or pulmonary impairment caused by a that pneumoconiosis is both latent and
receive ‘‘controlling weight’’ over disease or exposure unrelated to coal progressive and has responded to the
contrary opinions. That determination mine dust. Evidence that criticism leveled at that evidence. It is
may be made, however, only after the pneumoconiosis made only a negligible, the Department’s conclusion that the
adjudicator considers the credibility of inconsequential or insignificant record contains abundant evidence to
the physician’s opinion in light of its contribution to the miner’s disability is justify the regulation governing
documentation and reasoning and the insufficient to establish total disability subsequent claims.
Attorneys’ Fees director issues more than one schedule The district director will no longer issue
With minor changes, these final rules for the submission of additional an initial finding naming a responsible
promulgate the regulation governing the evidence in order to designate a operator but rather will finally designate
payment of a claimant’s attorney’s fee as different operator as the responsible in a proposed decision and order one
it was proposed in the Department’s operator, and that operator is ultimately operator as the responsible operator
second notice of proposed rulemaking, determined to be liable for the payment liable for a claim, § 725.418(d).
§ 725.367. The Department wishes to of benefits, that operator will be liable
for the payment of claimant’s attorney’s Insurance Endorsement
encourage attorneys to represent
claimants early in the administrative fee if it fails to accept the claimant’s In the second notice of proposed
process, given the important decisions entitlement within 30 days of the date rulemaking, the Department opened
which may be made by a claimant while upon which it is notified of its § 726.203 for comment, noting that
a claim is pending before the district designation as responsible operator. representatives of the insurance
director. For example, the rules now industry had told the Department that a
True Doubt
limit the quantity of medical evidence different version of the insurance
The Department has not adopted a endorsement than the one contained in
that a claimant may submit in support ‘‘true doubt’’ rule in these regulations.
of his entitlement. A claimant may § 726.203(a) had been in use since 1984
The ‘‘true doubt’’ rule was an with the Department’s consent. The
request that the Department send the evidentiary weighing principle under
objective test results from his complete Department invited the submission of
which an issue was resolved in favor of any document the insurance industry
pulmonary evaluation to his treating the claimant if the probative evidence
physician. Any treating physician’s might possess from the Department
for and against the claimant was in authorizing use of the different
opinion which is submitted to the equipoise. The Department believes that
district director, however, may become endorsement. 64 FR 54969–70, 55005–
evaluation of conflicting medical 06 (Oct. 8, 1999). The Department has
one of the claimant’s two medical evidence requires careful consideration
reports. The Department’s rule carefully considered the comments
of a wide variety of disparate factors submitted in response to the second
governing attorney’s fees, therefore, affecting the credibility of that evidence.
seeks to encourage early attorney notice of proposed rulemaking and
The presence of these factors makes it declines to amend § 726.203. The
involvement by providing a different unlikely that a factfinder will be able to
starting point for employer and Fund revised black lung endorsement offered
conclude that conflicting evidence is by the commenters would materially
attorney fee liability. Although the truly in equipoise. See preamble to
creation of an adversarial relationship alter the obligations and coverage
§ 718.3. provided by the insurance industry,
and the ultimately successful
prosecution of a claim are still necessary Criteria for Determining a Responsible thereby increasing the potential
to trigger employer or Fund liability, Operator exposure of coal mine operators and the
once that liability is triggered, a Black Lung Disability Trust Fund, see
The Department has made two
reasonable fee will be awarded for all preamble to § 726.203.
changes to the regulation governing the
necessary work performed, even if it identification of a responsible operator, Explanation of Changes
was performed before the creation of the § 725.495. That regulation now provides
adversarial relationship. that if the miner’s most recent employer Complete List of Substantive Revisions
The text of the regulation has been was a self-insured operator which no The Department has made substantive
altered in minor ways. The language longer possesses sufficient assets to revisions to the following regulations:
describing the fee to which an attorney secure the payment of benefits when the § 718.3, § 718.101, § 718.102, § 718.103,
is entitled has been amended to conform miner files his claim, the Department § 718.104, § 718.105, § 718.106,
with § 725.366. Section 725.367 will not name a previous employer as § 718.107, § 718.201, § 718.202,
therefore provides for the payment of a responsible operator. Rather, the claim § 718.204, § 718.205, § 718.301,
‘‘reasonable fee[] for necessary services will be the responsibility of the Black Appendix B to part 718, Appendix C to
performed. * * *’’ In addition, the Lung Disability Trust Fund. The Part 718, part 722 (entire), § 725.1,
regulation has been amended to Department has made this change in § 725.2, § 725.4, § 725.101, § 725.103,
conform with the revised district response to a comment that stated that § 725.202, § 725.203, § 725.204,
director claims procedure. Thus, it is unfair to name a prior employer as § 725.209, § 725.212, § 725.213,
§ 725.367(a)(1) now provides that if the liable for a claim when the financial § 725.214, § 725.215, § 725.219,
responsible operator designated by the inability of the later employer to pay the § 725.221, § 725.222, § 725.223,
district director pursuant to claim is the fault of the Department. § 725.306, § 725.309, § 725.310,
§ 725.410(a)(3) fails to accept the Because the Department has the § 725.311, § 725.351, § 725.362,
claimant’s entitlement to benefits within authority to accept or reject applications § 725.367, § 725.403, § 725.405,
the 30 day period provided by for self-insurance and to set minimum § 725.406, § 725.407, § 725.408,
§ 725.412(b) and is ultimately standards for qualifying as a self- § 725.409, § 725.410, § 725.411,
determined to be liable for benefits, the insurer, the Department agrees with the § 725.412, § 725.413, § 725.414,
operator shall also be liable for a commenter. Thus, to the extent the § 725.415, § 725.416, § 725.417,
reasonable attorney’s fee. Similarly, if security deposited by a self-insured coal § 725.418, § 725.421, § 725.423,
there is no operator that may be held mine operator pursuant to § 726.104 § 725.452, § 725.454, § 725.456,
liable for the payment of benefits, the proves insufficient to pay individual § 725.457, § 725.458, § 725.459,
district director issues a schedule for the claims, liability will not be placed on § 725.465, § 725.478, § 725.479,
submission of additional evidence previous employers, but rather on the § 725.490, § 725.491, § 725.492,
under § 725.410, and the claimant Trust Fund. The Department has also § 725.493, § 725.494, § 725.495,
successfully prosecutes his application altered the language of § 725.495(d) to § 725.502, § 725.503, § 725.515,
for benefits, the Fund will be liable for reflect the changes made in the § 725.522, § 725.530, § 725.533,
a reasonable attorney’s fee, regulations governing district director § 725.537, § 725.543, § 725.544,
§ 725.367(a)(2). Finally, if the district claims processing, §§ 725.410–725.413. § 725.547, § 725.548, § 725.606,
§ 725.608, § 725.609, § 725.620, § 725.101(a)(8), and capitalized the Department did not accept comments on
§ 725.621, § 725.701, § 725.706, § 726.2, word ‘‘section’’ in subsections (a) and these regulations, and is re-
§ 726.3, § 726.8, § 726.101, § 726.104, (b). Finally, the Department promulgating the regulations for the
§ 726.105, § 726.106, § 726.109, inadvertently omitted § 725.601 from convenience of readers.
§ 726.110, § 726.111, § 726.114, the list of technical revisions. The For purposes of this preamble, ‘‘he’’,
§ 726.300, § 726.301, § 726.302, Department replaced references to ‘‘his’’, and ‘‘him’’ shall include ‘‘she’’,
§ 726.303, § 726.304, § 726.305, ‘‘deputy commissioner’’ with references ‘‘hers’’, and ‘‘her’’.
§ 726.306, § 726.307, § 726.308, to ‘‘district director,’’ see 62 FR 3340 20 CFR Part 718—Standards for
§ 726.309, § 726.310, § 726.311, (Jan. 22, 1997), and replaced a reference Determining Coal Miners’ Total
§ 726.312, § 726.313, § 726.314, to the ‘‘Trust Fund’’ with a reference to Disability or Death Due to
§ 726.315, § 726.316, § 726.317, the ‘‘fund.’’ The Department explained Pneumoconiosis
§ 726.318, § 726.319, and § 726.320. the other technical changes that it was
Detailed explanations of the reasons for making to the regulations in its first and Subpart A—General
the Department’s revisions may be second notices of proposed rulemaking. 20 CFR 718.3
found in the discussion of individual See 62 FR 3340–41 (Jan. 22, 1997); 64
regulations below. FR 54970 (Oct. 8, 1999). With the (a)(i) In the initial notice of proposed
exception of § 726.203, none of the rulemaking, the Department invited
Complete List of Technical Revisions public comment on the continued use of
regulations listed above were open for
The Department has made only comment. The Department’s decision the ‘‘true doubt’’ rule, and specifically
technical changes to the following not to revise § 726.203, other than the on the language contained in § 718.3(c),
regulations: § 718.1, § 718.2, § 718.4, technical revisions discussed in the which had been cited to the Supreme
718.303, Appendix A to Part 718, Department’s first notice of proposed Court in support of the rule. 62 FR 3341
§ 725.3, § 725.102, § 725.201, § 725.206, rulemaking, is explained in the (Jan. 22, 1997). The ‘‘true doubt’’ rule is
§ 725.207, § 725.216, § 725.217, preamble to § 726.203. an evidentiary principle which requires
§ 725.218, § 725.220, § 725.301, the adjudicator to find in favor of the
§ 725.302, § 725.350, § 725.360, Complete List of Deleted Regulations claimant on a factual issue if the
§ 725.366, § 725.401, § 725.402, The following regulations have been evidence for and against the claimant is
§ 725.404, § 725.419, § 725.420, deleted: § 718.307, § 718.401, § 718.402, evenly balanced. The Supreme Court
§ 725.450, § 725.451, § 725.455, § 718.403, § 718.404, § 725.453A, invalidated the ‘‘true doubt’’ rule in
§ 725.462, § 725.463, § 725.466, § 725.459A, § 725.503A, § 725.701A, Director, OWCP v. Greenwich Collieries,
§ 725.480, § 725.496, § 725.497, and part 727 (entire). The Department 512 U.S. 267 (1994). The Court held
§ 725.501, § 725.504, § 725.505, explained its decision to incorporate the § 718.3(c) failed to define the rule
§ 725.506, § 725.507, § 725.510, text of sections 725.453A, 725.459A, effectively, and that the rule, as applied
§ 725.513, § 725.514, § 725.521, 725.503A, and 725.701A into other by the Benefits Review Board, violated
§ 725.531, § 725.532, § 725.536, regulations in its first notice of proposed the Administrative Procedure Act
§ 725.540, § 725.601, § 725.603, rulemaking. See list of Technical (APA), 5 U.S.C. 551 et seq., by relieving
§ 725.604, § 725.605, § 725.607, revisions, 62 FR 3341 (Jan. 22, 1997). the claimant of the burden of proving
§ 725.702, § 725.703, § 725.704, Detailed explanations of the his or her claim by a preponderance of
§ 725.705, § 725.707, § 725.708, Department’s decision to delete the the evidence (the ‘‘burden of
§ 725.711, § 726.1, § 726.4, § 726.103, remaining regulations in this list may be persuasion’’). The Department therefore
§ 726.203, § 726.207, § 726.208, found in the discussion of individual proposed deleting § 718.3(c) and moving
§ 726.209, § 726.210, § 726.211, regulations below. the existing 20 CFR 718.403 (1999)
§ 726.212, and § 726.213. In its first (‘‘Burden of proof’’) to proposed
Complete List of Unchanged § 725.103. (ii) In the second notice of
notice of proposed rulemaking, the
Regulations proposed rulemaking, the Department
Department revised § 725.3 to create a
new subpart E in part 725, and to The following regulations have not addressed the comments responding to
recognize the relabeling of the been revised: § 718.203, § 718.206, the proposed deletion of paragraph (c).
remaining subparts. The Department § 718.302, § 718.304, § 718.305, 64 FR 54974 (Oct. 8, 1999). Some
inadvertently omitted the regulation § 718.306, § 725.205, § 725.208, comments urged the Department to
from the list of technical revisions, § 725.210, § 725.211, § 725.224, promulgate a version of the ‘‘true
however. Accordingly, § 725.3 now § 725.225, § 725.226, § 725.227, doubt’’ rule which would comply with
appears in the complete list of technical § 725.228, § 725.229, § 725.230, Greenwich Collieries. Other comments
revisions. The Department also § 725.231, § 725.232, § 725.233, suggested retaining paragraph (c) as a
inadvertently omitted §§ 725.206 and § 725.303, § 725.304, § 725.305, statement of general principle and a
725.540 from the list of technical § 725.307, § 725.308, § 725.352, reminder to adjudicators of the purpose
revisions. The Department added a § 725.361, § 725.363, § 725.364, of the Black Lung Benefits Act (BLBA).
reference to § 725.4(d) to each § 725.365, § 725.422, § 725.453, The Department rejected both
regulation, see 62 FR 3340–41 (Jan. 22, § 725.460, § 725.461, § 725.464, suggestions. The Department concluded
1997). The Department also § 725.475, § 725.476, § 725.477, a ‘‘true doubt’’ evidentiary rule would
inadvertently omitted § 725.207 from § 725.481, § 725.482, § 725.483, not improve claims adjudication.
the list of technical revisions. The § 725.511, § 725.512, § 725.520, Rather, the factfinder must conduct an
Department replaced commas in § 725.534, § 725.535, § 725.538, in-depth analysis of the medical
subsections (b) and (c) with the word § 725.539, § 725.541, § 725.542, evidence in each case, and resolve
‘‘and.’’ The Department also § 725.545, § 725.546, § 725.602, credibility issues. The Department also
inadvertently omitted § 725.497 from § 725.710, § 726.5, § 726.6, § 726.7, noted that evidence is rarely in
the list of technical revisions. The § 726.102, § 726.107, § 726.108, equipoise because a factfinder must
Department replaced references to the § 726.112, § 726.113, § 726.115, consider such a wide variety of factors
‘‘Trust Fund’’ with references to the § 726.201, § 726.202, § 726.204, in weighing it: Physicians’
‘‘fund,’’ the term defined in § 726.205, and § 726.206. The qualifications, clinical documentation,
reasoning, relationship to other medical burden-shifting presumptions such as negative x-rays as trustworthy evidence
evidence, etc. With respect to paragraph the default onset date for the that the miner does not have
(c) as a statement of principle, the commencement of benefits, pneumoconiosis. Usery v. Turner
Department considered the provision § 725.503(b), (d), and the presumption Elkhorn Mining Co., 428 U.S. 1, 31–34
unnecessary because it would be of coverage for pulmonary-related (1976). Consequently, Congress has
unenforceable, and because the medical benefits, § 725.701(e), which limited the use of negative x-rays in
principles appear in the legislative assist claimants on medical treatment evaluating a miner’s entitlement to
history of the BLBA which may be cited issues. These provisions significantly benefits. Even if the x-ray readings in a
by a party in litigation. Moreover, the reduce the need for a ‘‘true doubt’’ rule. particular claim appear to be truly
Department noted it had addressed the (c) Three comments contend a ‘‘true balanced and therefore insufficient to
difficulties confronted by claimants in doubt’’ rule is necessary because the meet the preponderance standard,
proving their claims in other limitations on the quantity of medical however, the claimant may nevertheless
regulations, e.g., by requiring substantial evidence imposed by the regulations establish the existence of clinical
compliance rather than strict will result in increased instances in pneumoconiosis. For example, a
compliance with the quality standards which the evidence for and against factfinder might find one x-ray reading
for medical evidence. (iii) The entitlement is in equipoise despite more credible than another based on a
Department has received four additional scrupulous consideration of all relevant radiologist’s explanation, contained in a
comments concerning the ‘‘true doubt’’ factors affecting credibility. The supplemental report or deposition
rule. Department disagrees. The adjudicator testimony, of the reasons for his x-ray
must examine several variables in diagnosis. Such reasons may include
(b) Two comments observe that the
weighing the credibility of each item of consideration of the miner’s complete
Department has the regulatory authority
medical evidence, especially occupational history, including the
to promulgate a ‘‘true doubt’’ rule which
physicians’ opinions. Age of the length of his or her coal mine
will comply with Greenwich Collieries,
opinion, reasoning, underlying clinical employment, and the absence of other
and three comments urge the need for
data, the physician’s level of expertise, injurious exposures, see 45 FR 13687,
such a rule to implement Congressional
reliability of employment, social and Discussion and changes, § 718.202 (Feb.
intent that all reasonable doubt be
medical histories, etc., are all factors to 29, 1980). In addition, a claimant may
resolved in the claimant’s favor. The
be considered in each report. As for prove the existence of ‘‘legal’’
Department recognizes that it has the clinical studies, the quality standards
statutory authority to depart from the pneumoconiosis. This broader category
establish criteria to measure the of compensable disease comprises ‘‘all
requirements of the APA and allocate reliability of the clinical results, and
burdens of production and persuasion lung diseases which * * * [are]
physicians’ reviews of the results significantly related to, or substantially
among the parties. The Department, provide additional information on the
however, does not believe codification aggravated by, dust exposure in coal
studies’ validity. When all available mine employment.’’ Hobbs, 917 F.2d 4
of the ‘‘true doubt’’ rule is necessary to information is assembled, the
afford claimants the protections 791 n. 1; see also Barber v. Director,
Department believes few medical OWCP, 43 F.3d 899, 901 (4th Cir. 1995).
Congress intended in directing records for and against entitlement will
resolution of reasonable doubts in their In weighing medical evidence relevant
be in equipoise. Furthermore, the to ‘‘legal’’ pneumoconiosis, the
favor. Rather than a statement of general limitations on evidence should prompt
principle, the Department has provided adjudicator may consider a variety of
each party to bolster the credibility of its
assistance to claimants in other ways. factors which affect the weight of the
medical evidence and challenge the
As noted in the second notice of medical evidence, e.g., the physicians’
credibility of its opponent’s case.
proposed rulemaking, the Department (d) One comment states the ‘‘true expertise, the reasoning and
eased the level of compliance with the doubt’’ rule is especially needed for documentation in the medical reports,
quality standards for clinical tests and weighing chest x-rays because that type the comparative consistency or
medical reports from strict adherence to of evidence involves very few variables inconsistency of the opinions with other
‘‘substantial compliance.’’ 64 FR 54974 (film quality, readers’ expertise) which medical evidence such as hospital
(Oct. 8, 1999). The reduced standard can affect the credibility of the reports, etc. A claimant has ample
allows the adjudicator more leeway to evidence. The Department believes no opportunity to establish that (s)he has a
determine in each particular case need exists to adopt a specialized ‘‘true lung disease caused by coal mine
whether any defects in compliance doubt’’ rule for use in weighing only x- employment in addition to the narrow
undermine the credibility of the test or rays. Such a rule would place undue type of disease discoverable by x-rays.
report. Another example is the ‘‘treating importance on one type of evidence, The Department therefore rejects the
physician’’ rule in § 718.104(d). The and would overemphasize the role of x- position that a ‘‘true doubt’’ rule should
regulation enhances the weight an rays in determining whether the miner be available for the purpose of resolving
adjudicator may give to a miner’s has pneumoconiosis. Chest x-rays are conflicts in x-ray evidence.
treating physician’s opinion provided used to determine whether the miner (e) One comment suggests a ‘‘true
the opinion meets certain standards. In has ‘‘clinical’’ pneumoconiosis, i.e., doubt’’ rule would be useful in
addition, § 725.406(d) provides each ‘‘the lung disease caused by fibrotic resolving conflicts between qualifying
claimant with the opportunity to have reaction of the lung tissue to inhaled and nonqualifying pulmonary function
his or her treating physician receive dust, which is generally visible on chest and blood gas studies. The commenter
objective test results (such as a chest x- x-rays as opacities.’’ Hobbs v. acknowledges that more factors exist to
ray reading and pulmonary function Clinchfield Coal Co., 917 F.2d 790, 791 determine the credibility of these types
study results), in substantial compliance n. 1 (4th Cir. 1990) (citation omitted). of clinical evidence than exist when
with the regulations’ quality standards. The BLBA explicitly prohibits the chest x-ray evidence is in conflict, but
This provision ensures that the denial of a claim based solely on nevertheless recommends making the
claimant’s treating physician’s opinion negative x-rays. 30 U.S.C. 923(b). The rule applicable in the event the
may be based on complying evidence. reason for this prohibition is Congress’ evidence is in equipoise. Both
Finally, the Department has adopted reservations about the reliability of pulmonary function (§ 718.103) and
blood gas studies (§ 718.105) must Department concluded quality the applicable standards; the defect(s)
comply with far more detailed quality standards are consistent with the cannot be cured by a supplementary
standards than x-rays. Although only mandated consideration of all relevant opinion or other evidence; and the
‘‘substantial compliance’’ is required evidence because noncomplying death of the miner precludes developing
under the regulations, the more detailed evidence is inherently unreliable, and evidence which would be in substantial
standards necessarily provide more therefore not relevant to the compliance. In order for such evidence
points of comparison between studies adjudication of a claim. The Department to support an award or denial, the
and more bases for preferring one study rejected the suggestion that the criteria adjudicator must find the evidence
to another. A party may challenge enumerated in the quality standards sufficiently reliable to establish the
another party’s study by submitting should provide the only grounds for fact(s) for which it is offered despite its
expert opinion evidence demonstrating invalidating medical evidence; rather, failure to meet the threshold
the study is unreliable or invalid. Given parties may develop any evidence ‘‘substantial compliance’’ standard. The
the numerous means of challenging or which addresses the validity of the Department therefore rejects the
bolstering a study, the Department does evidence. The Department explained commenters’ general position that
not believe a ‘‘true doubt’’ rule would there was no need to add an exemption noncomplying evidence cannot be
play a significant role in weighing from the quality standards for excluded under 30 U.S.C. 923(b),
pulmonary function studies and blood hospitalization and treatment records although the Department recognizes a
gas studies. No change in the regulation because § 718.101 is clear that it applies limited exception to the standards’
is appropriate. quality standards only to evidence gatekeeping function for some claims
(f) No other comments have been developed ‘‘in connection with a claim’’ involving deceased miners.
received concerning this section, and no for black lung benefits. Finally, the (c) Two comments cite specific
changes have been made in it. Department rejected as unnecessary a examples of circumstances in which
requirement that the Department notify allegedly probative physicians’ opinions
Subpart B
a party if its evidence is noncomplying could be disregarded on compliance
20 CFR 718.101 and allow it to rehabilitate the evidence grounds. (i) In one example, the
(a) In the initial notice of proposed because the responsibility for commenter cites as potentially
rulemaking, the Department added submitting complying evidence rests noncomplying a medical opinion
subsection (b) to emphasize that the part with the party submitting it. The district diagnosing ‘‘legal’’ pneumoconiosis
718 quality standards apply to all director is already responsible for based on valid pulmonary function and
evidence developed by any party in ensuring the complete pulmonary arterial blood gas testing, but omitting
connection with a claim filed after examination required by 30 U.S.C. any chest x-ray testing. The Department
March 31, 1980, and to claims governed 923(b) complies with all applicable has previously considered the position
by part 727 if the evidence was quality standards. In addition, if an that a medical report should not
developed after that date. 62 FR 3341 opposing party challenges evidence as automatically be found noncomplying
(Jan. 22, 1997). Paragraph (b) also noncomplying, the party originally based on the absence of an x-ray. 64 FR
established a single standard of submitting it may rehabilitate the 54977 (Oct. 8, 1999). In rejecting the
compliance for all clinical tests and evidence by submitting an additional comment that the quality standard
medical reports, in place of the varying report from the author of the original applicable to reports of physical
standards contained in the former report. examination (§ 718.104) should not
individual regulations. The Department (b) Two comments reiterate the make a chest x-ray a standard
revised paragraph (b) in the second general argument that 30 U.S.C. 923(b) requirement, the Department noted that
notice of proposed rulemaking to clarify and the Administrative Procedure Act an x-ray is an integral part of any
that the quality standards will apply (APA), 5 U.S.C. 556(d), require examination for pneumoconiosis. The
only prospectively to evidence consideration of ‘‘all relevant evidence,’’ Department further noted, however, that
developed in connection with a claim, and the Department therefore cannot medical evidence must only be in
after promulgation of these regulations. exclude from the adjudicator’s ‘‘substantial compliance’’ with the
The Department noted it wished to consideration noncomplying medical applicable quality standards; the party
avoid invalidating evidence already evidence. The Department previously proffering the evidence may
submitted in pending claims based on addressed, and rejected, this argument demonstrate that the evidence is reliable
the parties’ settled expectations. 64 FR in the second notice of proposed despite its failure to comply with every
54974–75 (Oct. 8, 1999). The rulemaking. 64 FR 54974 (Oct. 8, 1999). criterion in the standard. The
Department also responded to numerous The Department stated that Department reiterates that position.
comments received after the initial noncomplying evidence is not ‘‘relevant Whether any particular piece of
notice of proposed rulemaking. It evidence’’ because it is inherently evidence is in ‘‘substantial compliance’’
rejected comments opposing the general unreliable, and cannot form the basis for with the standards, and therefore
applicability of the quality standards to awarding or denying a claim. Upon reliable, is a matter for the adjudicator
medical evidence and advocating further consideration, the Department to determine taking into consideration
consideration of noncomplying concludes this statement, while accurate all relevant circumstances. One
evidence, citing the need for technically in the majority of cases, should be important factor is the element(s) of
accurate and reliable evidence for the qualified. Evidence which does not entitlement for which the evidence is
adjudication of entitlement issues. For substantially comply with the offered. In the example cited above, the
the same reason, the Department applicable standard generally is not very lack of an x-ray is not necessarily fatal.
rejected comments disputing its reliable. Noncomplying evidence should The report may contain: valid and
authority to impose quality standards on only form the basis for awarding or pertinent other tests and information
medical evidence as inconsistent with denying a claim in limited upon which the physician can make a
the Black Lung Benefits Act’s (BLBA) circumstances. All three of the diagnosis; accurate medical, smoking
requirement that ‘‘all relevant evidence’’ following requirements must be met: no and employment histories; results of a
be considered. See 30 U.S.C. 923(b). The evidence exists which does comply with physical examination confirming the
presence of pulmonary symptoms or otherwise documented and reasoned fact that existing evidence may be
impairment; and pulmonary function evaluation of the miner’s respiratory/ brought into substantial compliance
study and/or blood gas studies pulmonary condition. No categorical despite the unavailability of the miner.
demonstrating impairment. Based on response, however, can be given to the The party offering the evidence may
this documentation, the physician may hypotheticals since the reliability, and obtain a supplementary opinion from
provide a documented and reasoned therefore the probative value, of the the physician who conducted the
diagnosis of ‘‘legal pneumoconiosis’’ reports can only be evaluated in the noncomplying test or authored the
which the adjudicator considers context of an actual claim. No change in report, and cure the defect(s). Finally,
reliable, i.e., in ‘‘substantial the regulation is warranted. the party may submit the noncomplying
compliance’’ with the quality standards. (d) One comment urges the evidence in any event, ecognizing that
See 45 FR 13687 (Feb. 29, 1980), Department to include a provision it may be considered but cannot
§ 718.202, Discussion and changes (h). specifically exempting those medical establish any fact for which complying
(ii) In another example, the commenter tests and reports generated outside the evidence is in the record.
posits a ‘‘positive’’ medical opinion black lung benefits claim context from (f) One comment suggests that
based on an invalid pulmonary function the quality standards. Specifically, the applying the quality standards only
test, valid arterial blood gas testing, commenter requests that the text of the prospectively will sanction the
physical examination and other data. regulation make clear that chest x-rays, acceptance of inferior evidence if the
The lack of a valid pulmonary function pulmonary function tests and blood gas evidence was developed before the
study is not necessarily a reason to studies administered in the hospital or effective date of these regulations. The
as part of the miner’s routine care be
reject the entire report. The hypothetical commenter also contends the
exempted from quality standards
assumes a valid blood gas test, physical Department’s rationale for prospective
applicability. The Department
examination, etc. As in the first application implies the former quality
previously addressed this concern in the
example, this testing and information standards will not apply to evidence
second notice of proposed rulemaking.
may support a documented and developed before the effective date of
64 FR 54975 (Oct. 8, 1999). The
reasoned diagnosis depending on the these regulations, especially for
Department noted that § 718.101 limits
purpose for which the report is offered. unrepresented claimants. The
the applicability of the quality standards
If the physical examination and clinical Department disagrees. In the initial
to evidence ‘‘developed * * * in
tests other than the pulmonary function connection with a claim for benefits’’
notice of proposed rulemaking,
study substantiate the presence of a governed by 20 CFR parts 718, 725 or proposed § 718.101(b) required all
pulmonary/respiratory impairment, the 727. Despite the inapplicability of the evidence developed in conjunction with
factfinder may deem the physician’s quality standards to certain categories of a black lung benefits claim to comply
diagnosis a reliable assessment of the evidence, the adjudicator still must be with the applicable quality standards.
miner’s extent of impairment. If the persuaded that the evidence is reliable 62 FR 3374 (Jan. 22, 1997). The
employment, smoking and other in order for it to form the basis for a Department stated that the purpose of
personal information is accurate, the finding of fact on an entitlement issue. § 718.101(b) was to make clear the
adjudicator may accept the physician’s Additional exclusionary language in the Department’s disagreement with
conclusions about the cause of the regulation is therefore unnecessary. Benefits Review Board precedent
miner’s pulmonary or respiratory (e) One comment contends all holding the former 20 CFR part 718
impairment. If, however, the physician medical evidence involving a deceased quality standards applied only to
clearly relied on the invalid pulmonary miner should be considered without evidence developed by the Director. 62
function study (or other inaccurate data regard to the quality standards because FR 3341 (January 22, 1997). One
or information), the adjudicator may the miner is no longer available for comment, in response to the first
find the opinion unreliable in one or further testing. The Department proposal, noted that, as written,
more respects. (iii) The Department disagrees. The regulations provide that § 718.101(b) would invalidate evidence
emphasizes that the ‘‘substantial a deceased miner’s noncomplying chest in claims pending before the
compliance’’ standard is a rule of x-rays, pulmonary function studies and Department which was valid under
reason. In each case in which an issue medical reports may form the basis of an prevailing Board precedent at the time
of noncompliance is raised, the award or denial of benefits under the evidence was generated. The
factfinder must identify any failure to certain circumstances provided no Department responded to this concern
comply strictly with the applicable complying study or report is available. in the second notice of proposed
quality standard. The factfinder must See §§ 718.102(e) (x-rays), 718.103(c) rulemaking by revising § 718.101 to
then determine whether the test or (pulmonary function studies), apply the quality standards only to
report is reliable despite its failure to 718.104(c) (medical reports). The evidence developed after the effective
comply with every criterion in the Department has added a similar date of the regulations. 64 FR 55010
standard. This finding is necessarily provision to § 718.105 (arterial blood gas (Oct. 8, 1999). In explaining the
dependent to an extent on the studies). With respect to each category revision, the Department acknowledged
element(s) of entitlement for which the of evidence, the availability of tests or the ‘‘substantial hardship’’ which might
test or report may be relevant. The reports in substantial compliance with occur, especially for unrepresented
significance of the particular defect the applicable quality standards makes claimants, if medical evidence which
must therefore be ascertained by reliance on the noncomplying tests or complied with the law when submitted
considering whether it is critical to the reports unnecessary; the record already into evidence became invalid after the
physician’s conclusions. In the first contains reliable evidence addressing regulations become effective. This
example, the lack of an x-ray may be the deceased miner’s pulmonary explanation, however, is not a
excused if the physician has offered a condition, and reliable evidence is the concession as to the correctness of the
documented and reasoned diagnosis of fundamental purpose of the quality Board’s decisions. Since 1980, the
‘‘legal’’ pneumoconiosis. In the second standards. Furthermore, excusing Department has consistently taken the
example, the invalid pulmonary noncompliance for all evidence position that the 20 CFR part 718
function study may or may not affect an involving a deceased miner ignores the quality standards apply to all evidence
developed by any party in black lung ray may demonstrate either the presence which is intended as a means of proving
benefits claim litigation. Although the or absence of pneumoconiosis unless it only the existence of clinical
Board has rejected the Department’s complies with reporting requirements, pneumoconiosis. An x-ray report,
position, Gorzalka v. Big Horn Coal Co., i.e., paragraph (b). Section 718.101(b) however, may also be part of a medical
16 Black Lung Rep. 1–48, 1–51 (1990) reinforces this requirement by stating report which must be considered under
(and cases collected), the only court of that ‘‘any evidence’’ which is not in § 718.202(a)(4). Even an unclassified x-
appeals to consider the issue has agreed substantial compliance with the ray may therefore provide some clinical
with the Department. Director, OWCP v. applicable quality standard cannot basis for a diagnosis of a respiratory
Mangifest, 826 F.2d 1318 (3d Cir. 1987). ‘‘establish the fact for which it is disease arising out of coal mine
The Department adheres to this view proffered.’’ For purposes of the quality employment under that section.
with respect to any evidence developed standards, ‘‘substantial compliance’’ Consequently, provision is already
in conjunction with a claim by any may mean less than strict compliance made for consideration of the results of
party before the effective date of the with each and every requirement of the an unclassified x-ray in the context of a
proposed regulations. applicable quality standard if the medical report. In this context, it may be
(g) Two comments approve of the evidence is nevertheless deemed used to support a diagnosis of legal
prospective application of the quality reliable by the factfinder. The pneumoconiosis.
standards. One comment approves of adjudicator must determine whether the (d) No other comments were received
the ‘‘substantial compliance’’ standard. x-ray reading is, or is not, in substantial concerning this section, and no other
(h) No other comments have been compliance if one or more items of changes have been made in it.
received concerning this section, and no required information have been omitted,
changes have been made in it. 20 CFR 718.103
including classification of x-ray findings
(a)(i) The Department proposed
20 CFR 718.102 according to any of the reporting
amending § 718.103 in the initial notice
schemes in § 718.102(b). In some
(a) In the initial notice of proposed of proposed rulemaking to take into
circumstances, the adjudicator may
rulemaking, the Department proposed account proposed § 718.101(b), which
three minor changes to § 718.102: determine that the x-ray interpretation
would establish a single standard of
eliminating the reference to the provides sufficient information to make
‘‘substantial compliance’’ for all of the
compliance standard in light of the a factual finding on the presence or
quality standards. 62 FR 3342 (Jan. 22,
substantial compliance language of absence of pneumoconiosis. For
1997). The Department also proposed
general applicability in § 718.101(b); example, the physician may describe
changes to § 718.103(c) to harmonize it
adding language presuming compliance the film findings in terms of ‘‘no
with § 718.102(e) (X-rays). Both
with the technical criteria for chest x- pneumoconiosis,’’ rather than provisions operate in the same manner
rays in Appendix A; and correcting a classifying the film as ‘‘0/-, 0/0 or 0/1.’’ and for the same purposes: to presume
typographical error in subsection (e) Such a reading may be considered compliance with technical requirements
which cited to a nonexistent regulation. sufficiently detailed to be in in the applicable appendices to part
62 FR 3342 (Jan. 22, 1997). The ‘‘substantial compliance’’ 718; to permit rebuttal of the presumed
Department did not propose any notwithstanding the lack of compliance with relevant evidence; and
additional changes in the second notice classification. Conversely, the to permit exceptions to the quality
of proposed rulemaking. 64 FR 54971 physician’s description or reporting of standards for a deceased miner if the
(Oct. 8, 1999). In the final rule, the x-ray film findings may indicate (s)he claim presents limited evidence. (ii) In
Department has changed subsection (e) read the film for reasons unrelated to response to comments received
to clarify the probative value of diagnosing the existence of concerning the initial notice of
noncomplying x-rays in the case of a pneumoconiosis, e.g., lung cancer or proposed rulemaking, the Department
deceased miner. Specifically, this cardiac surgery. The adjudicator may recommended several additional
provision states that an x-ray, which is consider that evidence not in substantial changes to § 718.103 in the second
not in substantial compliance with the compliance because it does not reliably notice of proposed rulemaking. 64 FR
quality standard, may still establish the address the presence or absence of 54975–76 (Oct. 8, 1999). One physician
presence or absence of pneumoconiosis pneumoconiosis. Accordingly, the testified at the Washington, D.C.,
if the x-ray is of sufficient quality for a Department disagrees with the hearing that a flow-volume loop
board-eligible radiologist, board- commenter’s position that any provided a more acceptable basis for
certified radiologist, or ‘‘B’’ reader to unclassified x-ray is not in ‘‘substantial obtaining verifiable test results than the
interpret the film. The Department has compliance’’ with § 718.102. proposed prohibition on an initial
also added a sentence to subsection (b) (c) Four comments suggest adding the inspiration from room air. The
to inform interested parties where they phrase ‘‘in and of itself’’ to the Department agreed, and proposed
may obtain a copy of the ILO subsection (e) prohibition on using changing both § 718.103 and Appendix
classification. unclassified x-rays to demonstrate the B to require flow-volume loops for every
(b) One comment argues that presence or absence of pneumoconiosis. pulmonary function test obtained after
§ 718.102(b) should state that an x-ray The comments contend that the change the effective date of the final regulation.
cannot establish the absence of would make clear that x-ray evidence of The Department invited additional
pneumoconiosis unless it complies with some disease process, in conjunction comment on this proposal. The
the quality standards and is classified with other evidence, could be used to Department also announced its
according to a recognized scheme. The prove the miner has a lung disease intention to survey clinics and facilities
commenter further argues that caused by coal dust exposure, i.e., which specialize in the treatment of
§ 718.102(b) and (e), in conjunction with ‘‘legal’’ pneumoconiosis. The pulmonary conditions to ascertain the
§ 718.101(b), are insufficient to impose recommended change is unnecessary. extent to which they already used
this requirement. Section 718.102(b) An unclassified x-ray which yields spirometers capable of producing flow-
identifies the classification systems positive indications of lung disease volume loops. The same physician
which are acceptable for black lung cannot establish the presence of observed that 20 CFR 718.103(a) (1999)
claims. Subsection (e) states that no x- pneumoconiosis under § 718.202(a)(1), required that pulmonary function
testing produce either a Forced Vital valid results and the miner provided individual physicians may not utilize
Capacity (FVC) or a Maximum good cooperation, the party submitting such machines, the Department has
Voluntary Ventilation (MVV) result, yet the noncomplying test may rely on it. concluded that the overall benefit to the
also required a one-second Forced (b) The Department announced its claims adjudication process warrants
Expiratory Volume (FEV1) which must intention in the second notice of required use of this technology. In any
be derived from the FVC. The proposed rulemaking to conduct a event, the claimant should always have
Department agreed the regulation was survey of the physicians, clinics and access to one set of testing which
inconsistent, and proposed a revision to facilities which perform pulmonary complies with the quality standards,
§ 718.103(a) making the FVC a required function testing (spirometry testing) to including the flow-volume loop
result along with the FEV1 and the MVV evaluate the prevalence of spirometers requirement, as a result of the
optional. The Department also proposed capable of producing a flow-volume pulmonary examination authorized by
increasing the allowable difference loop. The Department considered the 30 U.S.C. 923(b). This provision of the
between the two largest MVV values survey necessary in light of its BLBA requires the Black Lung Disability
from 5 percent to 10 percent in conclusion that the flow-volume loop Trust Fund to afford each miner-
§ 718.103(b) to harmonize the regulation may provide a ‘‘more reliable method of claimant the opportunity to substantiate
with Appendix B. The former and ensuring valid, verifiable results in his or her claim by means of a complete
initially proposed § 718.103(b) required pulmonary function testing.’’ 64 FR pulmonary examination at no expense
submission of three tracings of the MVV 54975 (Oct. 8, 1999). The Department to the claimant. See also § 725.406(a).
maneuver unless the two largest MVV also cited the relatively inexpensive cost Under § 725.406(c), the district director
(approximately $2000) for a spirometer is responsible for ensuring that the
results were within 5 percent of each
capable of producing the flow-volume examination authorized by 30 U.S.C.
other, in which case only two tracings
loop. The Department sent out the 923(b) is in ‘‘substantial compliance’’
were necessary. By contrast, Appendix
survey, dated March 7, 2000, to with the requirements of part 718,
B has consistently stated that the
approximately 1800 pulmonary clinics, including the quality standards. Section
variation between the two largest MVV
facilities and physicians board-certified 725.406(d) requires the Department to
shall not exceed 10 percent. The
in internal medicine with a subspecialty make available to the claimant’s
Department chose the more liberal
in pulmonary disease (Rulemaking physician, on the claimant’s request, the
variation. The Department agreed that
Record Ex. 107), and received 225 clinical test results obtained in
the validity of the MVV and FEVl/FVC responses (Rulemaking Record Ex. 109). conjunction with the pulmonary
values must be assessed independently, Of those responses, only nine indicated examination. Thus, contrary to the
and that the MVV maneuver is optional they did not perform pulmonary commenter’s concern, the claimant’s
for compliance purposes. The function testing on equipment physician should routinely be able to
Department, however, rejected the producing a flow-volume loop. Of those consider substantially complying
suggestion to remove certain technical nine, five indicated they would consider clinical testing of the miner in
requirements from the quality standards obtaining the necessary equipment. An formulating an opinion, despite the lack
to avoid invalidating a pulmonary additional 19 surveys did not respond to of capable technology in his or her own
function test for less than strict the questions concerning spirometric practice.
compliance; the Department responded testing. The remaining respondents, 197 (d) One comment approves of the
that the ‘‘substantial compliance’’ in all, unanimously used the flow- § 718.103 revisions generally, and
standard would allow a party to volume loop. Based on these survey particularly approves of the language
establish the credibility of the study, results, the Department concludes the making clear that the Maximum
notwithstanding the absence of one or benefit to the claims adjudication Voluntary Ventilation maneuver is
more of the § 718.103 requirements. process in obtaining reliable pulmonary optional. One comment supports the use
Finally, the Department proposed function data warrants revising of flow-volume loops and changes to
revisions to §§ 718.104(a)(6) and § 718.103(a) and Appendix B to make § 718.103(a) which eliminate internal
718.204(b)(2)(iv) to recognize that a the flow-volume loop a mandatory inconsistencies and clarify that the
medical report cannot be rejected for requirement for any pulmonary function Maximum Voluntary Ventilation
lack of a pulmonary function study if test conducted after the effective date of maneuver is optional. One comment
the performance of the test was these regulations in connection with a approves of requiring pulmonary
medically contraindicated. (iii) For the claim for benefits under the Black Lung function test results using flow-volume
final rule, the Department has changed Benefits Act (BLBA). loops and the increase from 5 percent to
the word ‘‘submitted’’ in § 718.103(b) to (c) One comment opposes the flow- 10 percent in the maximum variation
‘‘developed’’ to conform the regulation volume loop requirement because between the two largest MVV values.
to similar usage in § 718.101(b). The spirometric equipment which records (e) No other comments were received
Department also changed the opening this data may not be universally concerning this section, and no other
phrase of the first sentence in available. The Department disagrees. In changes have been made in it.
§ 718.103(c) to clarify that paragraph (c) the second notice of proposed
is an exception to the remainder of rulemaking, the Department proposed 20 CFR 718.104
§ 718.103. Finally, the Department using the flow-volume loop because it (a)(i) The Department proposed
amended the final sentence in provides a reliable and relatively several changes to § 718.104 in the
subsection (c) to make clear that a inexpensive means of producing valid, initial notice of proposed rulemaking.
noncomplying pulmonary function test verifiable pulmonary function test 62 FR 3342–43, 3375 (Jan. 22, 1997).
involving a deceased miner may be used results. 64 FR 54975 (Oct. 8, 1999). The One change required that each medical
to establish the presence or absence of Department’s survey of physicians, opinion developed in connection with a
a respiratory or pulmonary impairment clinics and facilities which perform claim be based on specified tests and
under limited circumstances. If no pulmonary function testing confirmed information, including a chest x-ray and
complying test is in the record and, in the widespread use of spirometers pulmonary function study which
the adjudicator’s opinion, the capable of producing flow-volume comply with the applicable quality
noncomplying test yielded technically loops. Although some clinics and standards. Another change proposed
guidelines for the adjudicator to reasoning and each physician’s receive ‘‘controlling weight,’’ including
determine whether to afford special professional qualifications. With respect whether the Department should adopt
weight to an opinion from the miner’s to a comment recommending placement the Social Security Administration’s
treating physician. The Department of the treating physician rule in a rule. (iii) For purposes of the final rule,
considered codification of the treating separate regulation, the Department the Department has altered subsection
physician’s special status appropriate, concluded no change was warranted; (c) to conform this provision to the
given its longstanding judicial subsection (d)’s position in the quality general ‘‘substantial compliance’’
recognition in the caselaw. In order to standards governing reports of standard in § 718.101(b). As amended,
ensure a critical analysis of the physician examinations underscored § 718.104(c) makes clear that a
physician-patient relationship, the that a treating physician’s opinion was noncomplying report of physical
guidelines described four basic factors required to satisfy the same quality examination may nevertheless provide
the adjudicator must consider: whether standards as any other physician evidence for a factual finding in certain
the physician provided pulmonary or examination report developed in limited circumstances involving a
non-pulmonary treatment; how long the connection with a claim for benefits. deceased miner and the lack of any
physician treated the miner; how often The Department acknowledged some complying report of physical
the physician treated the miner; and commenters’ concern that examination in the record. The report
what types of tests and examinations the unrepresented claimants would likely must have been prepared by a physician
physician conducted. Finally, the submit noncomplying reports from their who is ‘‘unavailable,’’ e.g., deceased,
Department emphasized that the treating physicians. The Department, whose whereabouts are unknown, etc.
adjudicator must consider not only the however, rejected the suggestion that The report must also be found to
quality of the physician’s relationship treating physicians’ opinions should be possess sufficient indicia of reliability
with the miner, but also the reasoning exempted from the evidentiary that the adjudicator may reasonably rely
and documentation in the opinion itself, limitations for that reason. Instead, the on it for factual findings.
and in the context of the remainder of Department noted its own obligation to (b) Several comments oppose granting
the record, before crediting that opinion. inform claimants in an understandable special weight to the opinion of a
(ii) In the second notice of proposed manner about the evidentiary miner’s treating physician, contending
rulemaking, the Department responded limitations, and to provide any the rule either intrudes on the
to the extensive comments which the claimant’s treating physician with the adjudicator’s role in evaluating evidence
proposed regulation had elicited. 64 FR results of the § 725.406 objective testing or compels the acceptance of an opinion
54976–77 (Oct. 8, 1999). The upon the claimant’s request. The from the treating physician regardless of
Department revised the regulation to Department denied one comment’s contrary opinions from physicians with
excuse mandatory pulmonary function suggestion that language in the initial greater expertise in pulmonary
testing if it was medically notice of proposed rulemaking (see 62 medicine. The Department responded to
contraindicated and the physician FR 3339 (Jan. 22, 1997)) made an a similar criticism in the second notice
conducted other types of medically adjudicator’s failure to consider a of proposed rulemaking. 64 FR 54976
accepted diagnostic tests; to make physician’s training and specialization (Oct. 8, 1999). In rejecting a
explicit that a treating physician’s reversible error. In the Department’s commenter’s view that § 718.104(d)
opinion could be used to establish all view, a physician’s qualifications were effectively precluded consideration of
elements of a miner’s entitlement; and an issue only when raised by a party. all relevant evidence in favor of the
to accept the physician’s statement as to The Department also rejected the opinion of the miner’s treating
subsection (d)’s treating relationship suggestion that a chest x-ray, physician, the Department emphasized
criteria, absent contrary evidence from administered and read in accordance the real purpose of the rule: to recognize
another party. The Department rejected with § 718.102, not be mandatory that a physician’s professional
comments which advocated the documentation for a complying report of relationship with the miner may
automatic acceptance of a treating physical examination. The Department enhance his or her insight into the
physician’s opinion if it satisfied the cited the importance of such a miner’s pulmonary condition. The
criteria of subsections (d)(1) through (5) diagnostic test and the flexibility of the Department does not believe that, as
and was documented and reasoned, ‘‘substantial compliance’’ standard in proposed, section 718.104(d) contained
regardless of the remaining medical excusing noncompliance depending on an outcome-determinative evidentiary
evidence. The Department also rejected the particular circumstances of the case. rule. See 64 FR 54977 (Oct. 8, 1999).
one comment which contended the In response to two comments, the The Department has revised the
regulation already mandated the Department declined to remove a language of section 718.104(d),
automatic acceptance of a treating limitation on the use of noncomplying however, in light of several commenters’
physician’s opinion in violation of 30 medical opinions. The regulation continued confusion as to the role of
U.S.C. 923(b) (requiring consideration of therefore allowed consideration of § 718.104(d) in weighing reports of
all relevant evidence). In response, the reports of physical examination not in physical examinations. The Department
Department emphasized that substantial compliance with § 718.104 hopes to clarify its original intent with
§ 718.104(d) only required the only if the miner was deceased, the this revision. Like the previously
adjudicator to consider the possible physician was unavailable to cure the proposed version, subsection (d)
enhanced value of a treating physician’s defects in the report, and there was no acknowledges the special weight which
opinion, and did not require a complying report in the record. In the opinion of a miner’s treating
mechanistic acceptance of that opinion. explanation, the Department physician may receive from the
The Department responded in similar emphasized that entitlement decisions adjudicator. Section 718.104(d)(1)–(4)
fashion to several comments which must be based on the best available provide criteria for evaluating the
contended that all medical opinions, evidence. Finally, the Department quality of that doctor-patient
including a treating physician’s opinion, invited additional public comment on relationship as indicia of the potential
should be evaluated only on the alternative means of determining when insight the physician may have gained
strength of their documentation and a treating physician’s opinion should from on-going treatment of the miner.
Instead of compelling the automatic 8, 1999), and reiterates its position in 177 F.3d 240, 243 (4th Cir. 1999)
acceptance of the treating physician’s responding to comments under (holding factfinder must determine
opinion, section 718.104(d) is designed § 718.101 of this rule. X-rays are an whether evidence relevant to each
to force a careful and thorough integral part of any informed and method of invoking irrebuttable
assessment of the treatment complete pulmonary evaluation of a presumption is ‘‘equivalent,’’ and
relationship. The adjudicator may miner; a general requirement for establishes same underlying condition).
conclude that no additional weight is inclusion of this test is therefore The physician’s report may provide
due the physician’s opinion because one appropriate. The Department also notes, additional valuable insight into his or
or more of the criteria establish facts however, that the quality standards her reasons for interpreting the x-ray as
which make such weight inappropriate. require only ‘‘substantial compliance’’ positive for complicated
For example, the physician may have with the various criteria, not technical pneumoconiosis rather than some other
provided only a short-term course of compliance with every criterion in condition detectable by x-ray; to that
treatment, or have actually examined every quality standard in every case. A extent, the report may be relevant to
the miner only infrequently. The factfinder may conclude the omission of weighing the credibility of the x-ray
adjudicator should consider giving an x-ray does not undermine the overall evidence. As a report of physical
additional weight to the treating credibility of the opinion, but this examination, however, the hypothetical
physician’s opinion only when review determination must be made on a case- report does not satisfy the ‘‘substantial
of the regulatory criteria establishes the by-case basis. The same commenter compliance’’ standard. (iii) In his report
physician’s thorough understanding of poses this example in the context of of physical examination, a physician
the miner’s pulmonary condition. § 718.101. The Department’s response to relies in part on a noncomplying
Subsection (d)(5) describes the next step that hypothetical makes certain critical pulmonary function test, but another
in the adjudicator’s inquiry: the assumptions in concluding the complying test yields comparable
adjudicator must consider whether the physician’s opinion may be found in results. Again, ‘‘substantial compliance’’
treating physician’s opinion is ‘‘substantial compliance’’ with the is a test of evidentiary reliability based
supported by sufficient documentation quality standards: the valid pulmonary on all relevant circumstances of the
and reasoning, and must weigh it with particular case. The factfinder must
function study demonstrates the
all other reasoned and documented evaluate those circumstances and
presence of a pulmonary/respiratory
medical opinions in the record. In determine whether the specific
impairment; the physician’s
addition, the fact finder must consider omission undermines the credibility of
examination of the miner identifies
all other relevant evidence of record. the evidence. In the hypothetical, the
signs or symptoms of a pulmonary
The regulation provides that only after factfinder must consider not only the
condition; and the physician has an
the adjudicator finishes this weighing defects in the physician’s pulmonary
accurate understanding of the miner’s
may he, in appropriate cases, base his function study, but also the remaining
employment, smoking and personal
decision to give ‘‘controlling weight’’ to documentation in the report (other
histories. If the clinical tests and other
the opinion of the miner’s treating clinical studies, the miner’s
information provide a documented basis employment, smoking and personal
physician on that physician’s superior for a reasoned and reliable opinion, the
understanding of the miner’s pulmonary information, etc.). If the report
factfinder may find the diagnosis of otherwise complies with § 718.104, the
condition. The Department recognizes ‘‘legal pneumoconiosis’’ in ‘‘substantial
that each case will present different invalid pulmonary function study may
compliance’’ with § 718.104 despite the be mitigated by the presence of a
issues regarding both the extent to absence of the x-ray. (ii) A physician
which the treating physician meets the complying study which confirms the
finds complicated pneumoconiosis on physician’s interpretation of the invalid
four criteria in subsection (d)(1)–(4), the an x-ray, but does not conduct a
documentation and reasoning of that study.
pulmonary function test. One means of (d) One comment supports the
physician’s opinion, and the relative diagnosing complicated revision of § 718.104(a)(6) in the second
merits of the other relevant medical pneumoconiosis is by x-ray. 30 U.S.C. notice of proposed rulemaking, which
evidence of record. As a result, the 921(c)(3)(A). The x-ray evidence is exempts a miner from mandatory
regulation does not attempt to dictate relevant to §§ 718.202(a)(3) and pulmonary function testing if the test is
the outcome of any particular case. The 718.304(a); accordingly, § 718.102 medically contraindicated, and allows a
Department therefore rejects the provides the applicable quality physician preparing a report of physical
position that § 718.104(d) intrudes on standards, and not § 718.104. The lack examination to substitute other
the fact-finding responsibilities of the of a pulmonary function study does not medically acceptable clinical and
adjudicator. affect the probative value of the x-ray laboratory diagnostic techniques in
(c) One comment opposes requiring reading(s) as evidence of complicated support of his conclusions. 64 FR
each physician’s opinion to include an pneumoconiosis under 30 U.S.C. 54976, 55011 (Oct. 8, 1999).
x-ray or pulmonary function study 921(c)(3)(A), because a pulmonary (e) One comment recommends the
conducted according to the applicable function study is not relevant to that Department delete the conditions in
quality standards. The commenter means of invoking the irrebuttable § 718.104(c) that, in the case of a
suggests these tests are not always presumption. Although all relevant deceased miner, limit the consideration
necessary for a relevant and credible evidence must be weighed in of a report from a physician who is not
opinion, and cites three examples: (i) A determining whether the miner has available if the report is not in
physician diagnoses an obstructive lung complicated pneumoconiosis, Melnick substantial compliance with the quality
impairment based on valid pulmonary v. Consolidation Coal Co., 16 Black standards. This provision permits the
function testing, examination, etc., but Lung Rep. 1–31, 1–33 (1991), the adjudicator to base a finding on such
does not obtain an x-ray. With respect evidence must pertain to the means of evidence only if the record does not
to the mandatory x-ray requirement, the diagnosing or refuting the existence of contain any physician’s report which is
Department has previously addressed complicated pneumoconiosis as in substantial compliance. No change in
this argument in the second notice of provided by 30 U.S.C. 921(c)(3)(B) and the regulation is necessary. Although
proposed rulemaking, 64 FR 54977 (Oct. (C). Cf. Double B Mining v. Blankenship, ‘‘substantial compliance’’ is a flexible
concept, it is also necessary to ensure a physician with particular training for doctors who examined a claimant on
that claims are adjudicated using the specialized care; the primary care only one occasion’’). As for the
most reliable evidence available. provider may therefore have little, if commenters’ statement that the
Consequently, the Department has any, qualified understanding of the frequency of patient contact provides no
incorporated limitations throughout the patient’s health problems. The advantage to a physician, this view is
quality standards on the use of commenters also state that the essential too simplistic. Frequency of treatment is
noncomplying evidence in claims basis for a reasoned diagnosis is valid only one of the regulatory criteria
involving deceased miners in which objective testing and sound (§ 718.104(d)(3)) the adjudicator must
there is no complying evidence of interpretation of the data rather than consider in assessing the treating
record. The fact that a miner is deceased patient complaints and physical physician relationship. The number of
is not necessarily a bar to rehabilitating examinations. Finally, the commenters visits must be viewed in the context of
noncomplying evidence. With respect to conclude that frequency of contact alone the other criteria (nature of relationship,
reports of physical examination, the does not provide any advantage for a duration of relationship, type and extent
physician who is available to review physician in developing a of treatment). The totality of the
and further comment on his or her own comprehensive understanding of the information demanded by the criteria
report may cure the defect and bring the patient’s condition. The commenters’ establishes the overall quality of the
report into substantial compliance. If, concerns do not provide a basis for doctor-patient relationship, which
however, the physician is unavailable, abandoning the rule. First, the miner’s guides the adjudicator in determining
§ 718.104(c) permits noncomplying ‘‘treating physician’’ is not necessarily whether to accord the treating
evidence to be considered if there is no the physician with whom the miner has physician’s opinion controlling weight.
complying evidence of record. The a long-standing generalized relationship The comments do not state a basis for
Department believes noncomplying if another physician actually provides changing or eliminating the ‘‘treating
evidence should be used to establish specialized treatment for respiratory or physician’’ rule.
facts about a deceased miner’s condition pulmonary problems. If the miner’s (h) Two comments contend the
only when no practical alternative is primary care provider refers the miner ‘‘treating physician’’ rule creates an
available. As long as complying to a pulmonary specialist for treatment, ‘‘evidentiary preference’’ which violates
evidence or the means of achieving
then that specialist may be considered section 7 of the Administrative
compliance exist, noncomplying
the miner’s ‘‘treating physician’’ for Procedure Act (APA), 5 U.S.C. 556.
evidence should not be the basis for
purposes of his or her pulmonary Although the Social Security
determining the validity of a claim.
(f) One comment objects to the condition. If, however, the specialist Administration (SSA) has also
retroactive application of the changes provides an opinion to the primary care promulgated a regulation, 20 CFR
made to § 718.104. None of these physician which forms the basis for the 404.1527(d) (1999), addressing the
changes, however, apply retroactively. miner’s treatment by the latter, the weight to be given a treating physician’s
Section 718.101(b) provides that the primary care physician’s opinion is opinion, the commenters argue there is
‘‘standards for the administration of strengthened by reliance on the no adverse party in SSA claims, and the
clinical tests and examinations’’ will specialist’s expertise. Second, the APA does not apply to SSA claims
govern all evidence developed in Department agrees that valid clinical adjudication. By implication, the
connection with benefits claims after testing and a reasoned medical report commenters suggest the Department
the effective date of the final rule. are necessary prerequisites for a credible cannot adopt a ‘‘treating physician’’ rule
Section 718.104 contains the quality medical opinion. A treating physician’s comparable to the SSA model, or any
standards for any ‘‘[r]eport of physical opinion is subject to the Department’s rule which affords special weight to a
examinations,’’ including reports quality standards, which require the treating physician’s opinion. The
prepared by a miner’s treating report to be based on specific clinical Department disagrees. As an initial
physician. Physicians’ medical reports tests, findings and other data and matter, whether the APA does or does
are expressly included in the terms of information. See § 718.104(a)(l)-(6). A not apply to SSA claims adjudications
§ 718.101(b). Consequently, the changes treating physician’s report must be is irrelevant to evaluating the validity of
to § 718.104 apply only to evidence reasoned as well as documented § 718.104(d). The Supreme Court has
developed after the effective date of the (§ 718.104(d)(5)). In this regard, a expressly refused to resolve the issue
final rule. With respect to treating treating physician’s opinion is no because ‘‘the social security
physicians’ opinions developed and different than any other physician’s administrative procedure does not vary
submitted before the effective date of opinion developed in connection with a from that prescribed by the APA.
the final rule, the judicial precedent claim for benefits. The Department does Indeed, the latter is modeled upon the
summarized in the Department’s initial not intend to displace the long-standing Social Security Act.’’ Richardson v.
notice of proposed rulemaking judicial precedent that sanctions the Perales, 402 U.S. 389, 409 (1971). In any
continues to apply. See 62 FR 3342 (Jan. rejection of a treating physician’s report event, the commenters misapprehend
22, 1997). These decisions recognize if it fails the basic requirements for both the nature of § 718.104(d) and the
that special weight may be afforded the credible evidence. See, e.g., Sterling critical differences between that
opinion of a miner’s treating physician Smokeless Coal Co. v. Akers, 131 F.3d regulation and the SSA version. The
based on the physician’s opportunity to 43 8, 441 (4th Cir. 1997); Lango v. commenters describe the ‘‘treating
observe the miner over a period of time. Director, OWCP, 104 F.3d 573, 577 (3d physician’’ rule as an ‘‘evidentiary
(g) Two comments state the ‘‘treating Cir. 1997); Peabody Coal Co. v. Helms, preference.’’ The Department interprets
physician’’ rule has no scientific basis 901 F.2d 571, 573–74 (7th Cir. 1990); this phrase to characterize the rule as a
because a treating physician is in no see generally Halsey v. Richardson, 441 burden-shifting presumption which
better position than any other physician F.2d 1230, 1236 (6th Cir. 1971) imposes on the party opposing the claim
to assess a miner’s pulmonary status. (rejecting ‘‘a mechanical rule insulating the burden to overcome the
The commenters note that a primary a treating doctor’s opinion from attack, ‘‘preference’’ for the treating physician’s
care physician will often, as a matter of no matter how respectable and opinion. The Department, however, has
medical practice, refer an individual to persuasive may be opposing opinions by repeatedly emphasized in the second
notice of proposed rulemaking and its weight’’ is meaningless unless the to a similar comment in the second
responses to comments in this rule that adjudicator may accept the opinion notice of proposed rulemaking, and
§ 718.104(d) does not create a despite a reasoned and documented noted that professional credentials are
presumption in favor of the treating contrary opinion by a pulmonary only one factor the adjudicator may
physician’s opinion. See 64 FR 54976– specialist submitted by another party; consider in weighing medical opinions.
77 (Oct. 8, 1999). The regulation otherwise, according to the commenter, 64 FR 54977 (Oct. 8, 1999). No basis
provides a set of criteria to guide the a treating physician’s opinion will exists, however, for insulating the
adjudicator’s evaluation of the treating prevail only when it echoes similar treating physician from a consideration
physician’s professional relationship opinions from other physicians. of his or her qualifications, or
with the miner, and ensure a critical Another comment interprets subsection prohibiting giving additional weight to
and thorough factual determination (d) as a burden-shifting device which the opinion of a physician with
whether that opinion should ultimately affords the treating physician’s opinion specialized training in a relevant area of
be given ‘‘controlling weight.’’ Aside presumptive controlling weight unless medicine. Although expertise is only
from assessing the strength or weakness the opposing party overcomes that one of several potentially relevant
of the treating physician’s report, the opinion by a preponderance of the factors to consider, it is nonetheless a
adjudicator must also weigh that report evidence. The Department has significant consideration. See, e.g.,
against all other relevant evidence in the previously responded to comments Milburn Colliery Co. v. Hicks, 138 F.3d
record. Consequently, § 718.104(d) is contending that a treating physician’s 524, 536 (4th Cir. 1998). Furthermore,
not a strict, outcome-determinative rule opinion should receive conclusive the commenter’s concern over
like more traditional evidentiary weight once the adjudicator reviews the comparative qualifications overlooks an
presumptions. These characteristics also opinion in light of the criteria important consideration underlying the
distinguish § 718.104(d) from SSA’s enumerated in subsection (d)(1)–(4). 64 ‘‘treating physician’’ rule. In black lung
version in 20 CFR 404.1527(d). Both FR 54976 (Oct. 8, 1999). The benefits claims, the principal issue
regulations state that ‘‘controlling Department rejected this position ordinarily is the miner’s pulmonary
weight’’ may be given to a treating because it artificially limits the condition. The treating physician may
physician’s report. Section 404.1527(d), adjudicator’s consideration of the develop a more in-depth knowledge and
however, provides that ‘‘[g]enerally, we evidence, and may promote a understanding of that issue than a
give more weight to opinions from your mechanistic and uncritical acceptance physician with greater academic
treating sources, * * *.’’ 20 CFR of the treating physician’s opinion at the credentials and minimal, or nonexistent,
404.1527(d)(2) (1999). This language expense of more credible contrary contact with the miner. The purpose of
demonstrates an affirmative preference evidence. No basis for departing from the § 718.104(d) criteria is to enable the
for reports from treating physicians; this position is established by the new adjudicator to determine whether the
§ 718.104(d) is more qualified in comments. The Department emphasizes treating physician has such informed
permitting ‘‘controlling weight’’ only if that the ‘‘treating physician’’ rule guides knowledge that his or her opinion
the regulatory criteria warrant it. the adjudicator in determining whether merits special weight.
Another significant difference between the physician’s doctor-patient (k) One comment suggests a
the regulations is the role the criteria relationship warrants special consultative physician’s opinion should
play in determining the weight given consideration of the doctor’s receive the same weight accorded a
treating physician if the consultant
the medical evidence. Section conclusions. The rule does not require
relies on the treating physician’s report,
404.1527(d) makes the criteria relevant the adjudicator to defer to those
the results of clinical tests, medical
only after the adjudicator refuses to give conclusions regardless of the other
records, etc., and the consulting report
the treating physician ‘‘controlling evidence in the record. The adjudicator
satisfies the § 718.104(d) criteria. The
weight:’’ ‘‘Unless we give a treating must have the latitude to determine
Department rejects this suggestion. If
source’s opinion controlling weight which, among the conflicting opinions,
any physician (other than the treating
* * * we consider all of the following presents the most comprehensive and
physician) could receive enhanced
factors in deciding the weight we give credible assessment of the miner’s
weight by incorporating consideration
to any medical opinion.’’ The regulation pulmonary health. For the same reasons,
of the treating physician’s opinion into
lists several criteria which are similar to the Department does not consider his or her consulting opinion, the
those listed in § 718.104(d)(l)-(4). subsection (d) to be an evidentiary consultative physician(s) for each party
Section 718.104(d) makes the same presumption which shifts the burden of would stand on equal footing based on
criteria the basis for determining in the production or persuasion to the party access to the treating physician’s report.
first place whether to give the treating opposing entitlement upon the No reason would therefore exist for the
physician controlling weight. To the submission of an opinion from a miner’s rule. In any event, a consultative
extent 20 CFR 404.1527(d) operates like treating physician. Accordingly, the physician’s reliance on the treating
an evidentiary presumption, it does not Department declines to eliminate the physician’s report does not necessarily
affect the validity of § 718.104(d) requirement in subsection (d)(5) that a confer the same benefit the treating
because § 718.104(d) clearly is not a treating physician’s opinion must be physician may derive from the nature,
presumption in favor of the treating considered in light of all relevant duration, frequency and extent of
physician’s opinions. Accordingly, the evidence in the record. treatment during the physician-patient
Department rejects the commenters’ (j) One comment objects to comparing relationship with the miner.
position that the rule violates the APA. a treating physician’s qualifications to (l) Two comments oppose making the
(i) Three comments oppose the those of any other physician in the quality standards applicable to the
requirement in § 718.104(d)(5) that the record. The commenter suggests report of physical examination prepared
adjudicator must weigh a treating comparative qualifications may provide by a miner’s treating physician. The
physician’s opinion against the contrary a basis for refusing controlling weight to commenters suggest removing
relevant evidence in the record. One the treating physician’s opinion if subsection (d) from § 718.104 and
comment states that affording a treating another physician has superior making it a separate regulation. The
physician’s opinion ‘‘controlling credentials. The Department responded Department rejected the identical
argument in the second notice of physician’s reasoning and pulmonary condition rather than a
proposed rulemaking. 64 FR 54976–77 documentation. The Department has chronic pulmonary impairment. 64 FR
(Oct. 8, 1999). The Department intends previously explained the intended 54977 (Oct. 8, 1999).
the quality standards to apply to any limits of section 718.104(d) as an (b) One comment recommends the
physician’s report developed in evidentiary rule which guides Department afford consideration to
connection with a claim for benefits, consideration of a treating physician’s noncomplying blood gas studies in the
including any report prepared by a opinion but does not impose a strict case of a deceased miner since such
treating physician. Although a treating outcome. 64 FR 54977 (Oct. 8, 1999). consideration is given elsewhere in the
physician may have a superior The recommended additional language regulations for x-rays (§ 718.102(e)) and
perspective on the miner’s health in does not further this purpose. pulmonary function studies
certain circumstances, status alone does Accordingly, the recommendation is (§ 718.103(c)). The regulations also
not guarantee the validity of the rejected. (iii) No comment outline specific circumstances under
physician’s opinion. recommended adopting the SSA which a report of physical examination
(m) Two comments recommend regulation in place of the regulation as of a miner now deceased may be
allowing a miner or a miner’s family proposed by the Department. considered by an adjudication officer
members to attest to the nature of the (o) Several comments approve notwithstanding its failure to
miner’s relationship with his or her generally of the ‘‘treating physician’’ substantially comply with § 718.104(a)
treating physician. The Department rule. and (b). See § 718.104(c), above. The
disagrees. Although persons other than (p) No other comments were received Department agrees, and has revised
the physician may have some direct concerning this section, and no other § 718.105 accordingly by adding
knowledge of the miner’s treatment, changes have been made in it. subsection (e). This provision is
only the physician can provide a 20 CFR 718.105 comparable to § 718.103(c), and permits
complete picture of the doctor-patient the adjudicator to consider a deceased
relationship, as well as documentary (a)(i) In the initial notice of proposed miner’s blood gas studies not in
evidence of the specific clinical tests rulemaking, the Department proposed substantial compliance with subsections
conducted. In addition, if amending § 718.105 to address arterial (a), (b) and (c) if they are the only
representations as to the criteria in blood gas studies which are available tests and, in the adjudicator’s
(d)(1) through (4) are challenged, it is administered during a miner’s terminal opinion, are technically valid.
the physician’s records, including hospitalization, i.e., ‘‘deathbed’’ studies. Subsection (e) also requires any such
treatment notes, etc., which will enable 62 FR 3342–43 (Jan. 22, 1997). test to meet the requirements of
the adjudicator to evaluate the quality of Specifically, the Department expressed subsection (d) if the test was obtained
the relationship. Evidence from persons concern that such studies may produce during a miner’s hospitalization ending
other than the physician may qualifying values for reasons unrelated in death and yielded qualifying values.
supplement the physician’s to chronic pulmonary disease. The The claimant must submit a physician’s
characterization of the miner’s Department therefore suggested a new opinion establishing that the qualifying
treatment, but the physician (or the requirement that a claimant must values reflect a chronic pulmonary
physician’s records) remains the best submit a physician’s report linking the impairment and not some acute
primary source for depicting the miner’s blood gas study results to a chronic condition unrelated to a chronic
treatment. pulmonary condition caused by pulmonary impairment.
(n) In the second notice of proposed exposure to coal mine dust in order to (c) Two comments oppose requiring
rulemaking, the Department invited rely on the qualifying results as the claimant to prove a miner’s chronic
comment on alternatives to the revised evidence of total disability. 62 FR 3375 respiratory or pulmonary impairment
‘‘treating physician’’ rule, including (Jan. 22, 1997). (ii) In response to caused his qualifying ‘‘deathbed’’ blood
whether to adopt a version of the rule comments received, the Department gas results. The commenters argue that
comparable to the Social Security deleted the requirement that, in the case the party opposing entitlement should
Administration’s (SSA) regulation, 20 of blood gas studies administered bear the burden of proving a non-
CFR 404.1527(d) (1999). 64 FR 54976 during a hospitalization that ends in the respiratory or non-pulmonary condition
(Oct. 8, 1999). (i) Two comments oppose miner’s death, the chronic pulmonary caused the qualifying results since that
in general terms using the SSA condition must be shown to be related party has equal access to the miner’s
regulation to evaluate the treating to the miner’s exposure to coal mine hospital records and physicians. The
physician’s opinion. (ii) One comment dust; the Department agreed the Department disagrees. The claimant
recommends incorporating language causation requirement was bears the general burden of persuasion
from the SSA regulation that more inappropriate because § 718.105 to establish entitlement to benefits by a
weight should ‘‘generally’’ be given a addresses the existence of a chronic preponderance of the evidence, except
miner’s treating physician. See 20 CFR pulmonary impairment, and not its to the extent a presumption eases that
404.1527(d)(2) (1999). The commenter source. 64 FR 54977–78 (Oct. 8, 1999). burden. See generally Director, OWCP v.
opposes any other use of the SSA The Department also agreed to a minor Greenwich Collieries, 512 U.S. 267
regulation. The additional language is change in technical nomenclature by (1994). One facet of the claimant’s
inappropriate. See paragraph (h), above. changing ‘‘p’’ to ‘‘P’’ to denote partial burden is the responsibility to ensure
Section 718.104(d) outlines the pressure. Finally, the Department that the clinical tests such as blood gas
circumstances in which a treating rejected those comments which opposed studies substantially comply with the
physician may be afforded ‘‘controlling requiring the claimant to establish a link quality standard. The quality standard
weight’’ on entitlement issues. Although between a miner’s ‘‘deathbed’’ blood gas provides some assurance to the
the regulation recognizes the special study and a chronic pulmonary adjudicator that the clinical test is valid,
value which may attach to a treating condition. The Department concluded accurate and reliable evidence of the
physician’s report in certain the proposed requirement was necessary factual proposition for which it is
circumstances, the Department does not because the miner’s qualifying test proffered. The Department considers a
intend to deflect attention from the results during a terminal hospitalization physician’s opinion necessary to
necessity for critical examination of the may be related to an acute non- establish a nexus between ‘‘deathbed’’
blood gas studies and a chronic diagnoses; the lack of evidence in the pneumoconiosis by biopsy in view of
pulmonary disease; raw clinical test record that the medical community the court’s statutory analysis. The Court
results under these circumstances are agrees on a particular standard; and the does not accept or reject any specific
not sufficiently instructive for a lay lack of evidence indicating the clinical criteria for biopsy diagnoses,
adjudicator to make such a Kleinerman article reflects an accepted and the Department does not interpret
determination. The fact that the party standard. the decision as repudiating the
opposing entitlement may have equal (b)(i) One comment again Kleinerman article in particular.
access to relevant information about the recommends adopting the criteria for
circumstances and interpretation of the (c)(i) Three comments approve of the
diagnosing pneumoconiosis by autopsy restored paragraph (c). (ii) Two
blood gas testing is not determinative in or biopsy contained in the Kleinerman
allocating the burden of persuasion. The comments approve of the Department’s
article as the ‘‘accepted’’ pathologic clarification in the second notice of
Department does not perceive any basis standard. The Department has
for shifting the overall burden of proof proposed rulemaking that the
previously noted that the record does § 718.106(a) requirement for a gross
from the claimant to the opposing party not substantiate the existence of a
in the case of qualifying ‘‘deathbed’’ macroscopic inspection of the lungs
consensus among physicians for making
blood gas studies. The comments do not applies only to the autopsy itself and
diagnoses using these criteria, or the
address the Department’s explanation in not to a reviewing physician’s opinion.
acceptance of the Kleinerman article as
the second notice of proposed representative of the medical 64 FR 54978 (Oct. 8, 1999).
rulemaking, 64 FR 54977–78 (Oct. 8, community’s views. 64 FR 54978 (Oct. (d) No other comments were received
1999), for imposing this requirement, 8, 1999). Indeed, two other commenters concerning this section, and no other
beyond noting continued opposition. commend the Department for refusing to changes have been made in it.
The Department therefore rejects the accept these criteria, noting that other
comments’ position. 20 CFR 718.107
pathologists do not agree that this article
(d) No other comments were received
represents a universal or prevailing (a) In the initial notice of proposed
concerning this section, and no other
standard. One commenter suggests, for rulemaking, the Department proposed a
changes have been made in it.
example, that Dr. Kleinerman’s view clarification of § 718.107 which
20 CFR 718.106 that a two-centimeter lesion on autopsy addresses medical evidence not
(a) The Department proposed minor or biopsy is necessary for a diagnosis of otherwise covered by the quality
changes to § 718.106 in the initial notice complicated pneumoconiosis is not standards. 62 FR 3343 (Jan. 22, 1997).
of proposed rulemaking to account for universally accepted, and that other Proposed subsection (b) required the
the adoption of a general standard of pathologists would require only a one-
party submitting such evidence to
substantial compliance with the quality centimeter lesion. The commenter
establish that the evidence is medically
standards (§ 718.101), and to adopt urging adoption of the Kleinerman
acceptable and relevant to proving the
consistent terminology for evidence criteria does not supply any additional
existence or nonexistence of
which is not in substantial compliance information in support of its
recommendation. The Department pneumoconiosis, the sequelae of
with the applicable standard. 62 FR pneumoconiosis or a ‘‘respiratory
3343 (Jan. 22, 1997). The Department therefore has no basis in the record for
adopting the suggested standard. (ii) impairment.’’ The Department
responded to several comments in the
One comment cites Double B Mining, responded to comments received from
second notice of proposed rulemaking.
Inc. v. Blankenship, 177 F.3d 240 (4th the public in the second notice of
64 FR 54978 (Oct. 8, 1999). At the
urging of several commenters, the Cir. 1999), as legal authority for proposed rulemaking. 64 FR 54978 (Oct.
Department restored subsection (c) to rejecting the Kleinerman article. In that 8, 1999). The Department changed the
§ 718.106, explaining that the omission case, the Court considered whether a reference in subsection (a) from
of that provision from the initial biopsy diagnosis of a certain-sized ‘‘respiratory impairment’’ to
proposed version of the regulation was fibrotic nodule amounted to a ‘‘massive ‘‘respiratory or pulmonary impairment.’’
inadvertent. Other comments expressed lesion’’ for purposes of proving the The Department rejected as unnecessary
concern that the requirement for a gross miner had complicated pneumoconiosis a recommendation that disability and
macroscopic inspection of the lungs under 30 U.S.C. 921(c)(3) (irrebuttable disability causation should be added to
would preclude reliance on reviewing presumption of total disability due to the relevant issues because the
physicians, who ordinarily review only pneumoconiosis invoked by proof of regulation adequately stated the
the autopsy protocol and inspect tissue complicated pneumoconiosis). The purposes for which ‘‘other medical
samples microscopically. The Court cited, among other sources, the evidence’’ could be submitted. One
Department responded that only the Kleinerman article as requiring a comment approved of § 718.107 as
autopsy itself must include the gross minimum two-centimeter nodule to proposed in the initial notice of
macroscopic inspection of the lungs; the constitute a ‘‘massive lesion.’’ The Court proposed rulemaking.
requirement does not extend to opinions declined to adopt the two-centimeter
(b) For purposes of the final rule, the
prepared by reviewing physicians. rule because ‘‘[t]he [Black Lung Benefits
Department emphasizes that § 718.107
Finally, the Department rejected the Act] does not mandate use of the
as a whole is intended to permit any
recommendation of some commenters to medical definition of complicated
party to offer any medical test or
adopt the standards for diagnosing pneumoconiosis.’’ 177 F.3d at 244.
pneumoconiosis by autopsy or biopsy Instead, the Court held the adjudicator procedure which may be relevant to any
set forth in Kleinerman et al., must determine whether a particular disputed medical issue relating to a
‘‘Pathologic Criteria for Assessing Coal nodule discovered by biopsy would be claimant’s entitlement to benefits
Workers’’ Pneumoconiosis,’’ in the equivalent to a one-centimeter opacity if provided the requirements of subsection
Archives of Pathology and Laboratory diagnosed by x-ray. The Blankenship (b) are met.
Medicine (1979). The Department decision rejects only the mandatory use (c) No other comments were received
emphasized its historic reluctance to of the medical community’s standards concerning this section, and no other
adopt specific standards for such for diagnosing complicated changes have been made in it.
Subpart C Department could not accomplish the that Congress created NIOSH as a source
20 CFR 718.201 same change through regulation. The of expertise in occupational disease and
Department also received numerous the analysis of occupational disease
(a) In the initial notice of proposed comments in support of the revised research, the Department concluded it
rulemaking, the Department proposed definition. Among the favorable saw no scientific or legal basis upon
amending § 718.201. 62 FR 3343–44, comments was one from NIOSH, which to alter its proposed change to
3376 (Jan. 22, 1997). The amendments transmitted by letter dated August 20, the definition of pneumoconiosis. The
were designed to clarify the regulatory 1997 and signed by Dr. Paul A. Schulte, Department further stated its
definition and conform it to the statute, Director of NIOSH’s Education and disagreement that Congressional
which broadly defines pneumoconiosis Information Division. Rulemaking inaction invalidated its proposed
as ‘‘a chronic dust disease of the lung Record, Exhibit 5–173. NIOSH revision of the definition since it was
and its sequelae, including respiratory supported the Department’s proposal to acting within the scope of Congress’
and pulmonary impairments, arising out amend the definition to include chronic grant of regulatory authority.
of coal mine employment.’’ 30 U.S.C. obstructive pulmonary disease and to Accordingly, the Department proposed
902(b). To that end, the Department reflect the scientific evidence that no additional changes to this regulation
proposed three revisions. pneumoconiosis is a progressive in the second notice of proposed
First, the Department inserted the condition that may become detectable rulemaking. 64 FR 55012–13 (Oct. 8,
terms ‘‘clinical’’ and ‘‘legal’’ only after cessation of coal mine 1999). The Department has now
pneumoconiosis into the regulation to employment in some cases. The amended subsection (a)(1) by deleting a
conform it to the terminology uniformly Department also received favorable comma for grammatical reasons.
adopted by the courts to distinguish comments and testimony from (b) The Department has again received
between the two forms of lung disease physicians with expertise in pulmonary both favorable and unfavorable
compensable under the statute: diseases. comments on its proposed revision to
pneumoconiosis, as that disease is Given the widely divergent comments the definition of pneumoconiosis. To
defined by the medical community, and and testimony received from medical the extent these comments are directed
any chronic lung disease arising out of professionals on the proposed specifically to the Department’s
coal mine employment. Second, the regulation, the Department sought proposal to define pneumoconiosis as a
Department proposed revising the additional guidance from NIOSH, latent and progressive disease, the
definition to make clear that both notwithstanding the fact that NIOSH Department’s response is set forth in the
restrictive and obstructive lung disease had already commented in support of preamble under § 725.309. The
may fall within the definition of the initial proposal. The Department Department responds here to the
pneumoconiosis if shown to have arisen transmitted a copy of all of the remainder of the relevant comments,
from coal mine employment. Third, the testimony and commentary it had including those addressing the
Department proposed a revision to received to Dr. Linda Rosenstock, the Department’s proposal to include
recognize the latent and progressive Director of NIOSH, and asked NIOSH to obstructive lung diseases arising out of
nature of the disease. The last two determine, in light of the then existing coal mine employment within the
changes, for which the Department cited record, whether NIOSH continued to definition of pneumoconiosis. Where a
scientific evidence in support, 62 FR support the Department’s proposal. scientific article or treatise is cited, the
3343–44 (Jan. 22, 1997), were proposed Rulemaking Record, Exhibit 66. NIOSH Department has also cited to a
as a result of recent litigation on these responded, in a December 7, 1998 letter Rulemaking Record Exhibit or, when
issues. The Department specifically from Dr. Schulte, that ‘‘[t]he unfavorable appropriate, the Federal Register, where
sought comments on these revisions. comments received by DOL do not alter that source appears. This second
The Department received numerous our previous position: NIOSH scientific citation is not an exhaustive list; thus,
favorable and unfavorable comments analysis supports the proposed each source may appear at additional
and testimony on the proposals. 64 FR definitional changes.’’ Dr. Schulte points in the Rulemaking Record.
54978–79 (Oct. 8, 1999). One provided additional medical references (c) One comment objects to the
commenter objected to the revised to support NIOSH’s conclusion. Department’s inclusion of the term
definition because it would include all Rulemaking Record, Exhibit 72. ‘‘legal pneumoconiosis’’ in the revised
obstructive pulmonary diseases. A The Department responded to the definition because there is no such
number of commenters complained that comments it had received in its second ‘‘phenomenon.’’ Another comment
the Department lacked the statutory notice of proposed rulemaking. 64 FR expresses the concern that the revised
authority to implement the proposals, 54978–79 (Oct. 8, 1999). The regulation would create a new medical
and that the Department had violated Department emphasized that the diagnosis. The statute defines
the statute by failing to consult with the proposed revision was designed to make pneumoconiosis as ‘‘a chronic dust
National Institute for Occupational clear that obstructive lung disease may disease of the lung and its sequelae,
Safety and Health (NIOSH) before fall within the definition of including respiratory and pulmonary
proposing the changes. 30 U.S.C. pneumoconiosis, but only if it is shown impairments, arising out of coal mine
902(f)(1)(D). Several commenters also to have arisen from coal mine employment.’’ 30 U.S.C. 902(b). This
argued that the Department’s proposed employment; thus, the proposed broad definition encompasses not only
definition was scientifically unsound, definition would not alter the former coal workers’ pneumoconiosis as that
and presented testimony from a panel of regulations’ (20 CFR 718.202(a)(4), disease is contemplated by the medical
pulmonary physicians at the 718.203 (1999)) requirement that each community, but also any other chronic
Department’s July 22, 1997 hearing in miner bear the burden of proving that lung disease demonstrably related to
Washington, D.C., to substantiate their his lung disease arose out of his coal coal mine employment but not typically
views. Two commenters contended that mine employment. The Department also denominated as pneumoconiosis in
because Congress had rejected an notified the public of NIOSH’s medical circles. Thus, the Department is
amendment to the statutory definition of December 7, 1998 response, including making a legal distinction, rather than a
pneumoconiosis which would have the additional evidence NIOSH cited. 64 medical one, by employing the phrase
included obstructive lung disorders, the FR 54978–79 (Oct. 8, 1999). Recognizing ‘‘legal pneumoconiosis’’ in order to
properly implement Congress’ intent. In Shulte’s letter cannot substitute for support, these commenters have
so doing, the Department is ‘‘genuine scientific review.’’ Other submitted an analysis of some of the
acknowledging the distinction already commenters allege that NIOSH available medical literature from Dr.
adopted by the circuit courts of appeals presented no serious medical or Gregory Fino, a Board-certified
in construing and applying the statutory scientific analysis to support its physician in Pulmonary Diseases, and
definition. See, e.g., Gulf & Western position. To the extent these comments Dr. Barbara Bahl, who has a doctorate in
Industries v. Ling, 176 F.3d 226, 231–32 accuse the Department of obtaining nursing and biostatistics. Their review
(4th Cir. 1999); Bradberry v. Director, assistance from NIOSH’s information of the literature regarding obstructive
OWCP, 117 F.3d 1361, 1368 (11th Cir. officer rather than its scientific staff, the lung disease and pulmonary
1997); Labelle Processing Co. v. Department’s response is set forth in the dysfunction in coal miners led them to
Swarrow, 72 F.3d 308, 315 (3d Cir. preamble under § 725.309. NIOSH conclude that virtually all of the articles
1995); Consolidation Coal Co. v. Hage, voluntarily submitted its first statement they reviewed are flawed, and that there
908 F.2d 393, 395–396 (8th Cir. 1990); in support of the proposed revision to is no evidence of a clinically significant
Campbell v. Consolidation Coal Co., 811 the definition of pneumoconiosis during reduction in lung function resulting
F.2d 302, 304 (6th Cir. 1987); Peabody the public comment period for the from coal mine dust exposure.
Coal Co. v. Lowis, 708 F.2d 266, 268 n.4 initial rulemaking proceeding. The (Rulemaking Record, Exhibit 89–37,
(7th Cir. 1983). Department then actively solicited an Appendix C). They elaborate:
(d) Several comments express concern additional opinion from NIOSH in There are a number of statements that can
over including obstructive pulmonary response to other comments the and cannot be said about obstruction in coal
diseases in the definition of Department had received requesting miners. Some of the articles discussed in
pneumoconiosis, believing such change such consultation and not, as the Table 1 above do demonstrate a reduction in
will result in compensating miners for commenter suggests, to provide ‘‘post- the FEV1 in highly selected cohorts of
diseases caused by factors unrelated to hoc’’ rationalization for the proposed miners. Because of selection bias, the results
coal mine employment. Whether coal revisions to the regulation. NIOSH cannot be applied to all miners in general.
mine dust exposure can cause chronic responded, and the Department set forth Since the reductions in the FEV1 are
obstructive pulmonary disease is a averages, it is statistically impossible to state
the substance of the response in the whether a given miner would have FEV1
question of medical and scientific fact second notice of proposed rulemaking.
that will not vary from case to case; reductions greater than or less than the stated
64 FR 54978–79. In response to the amount. The articles do not say and do not
thus, it is an appropriate question for second notice, NIOSH once again show that coal mine dust inhalation causes
the Department to answer by regulation. submitted an unsolicited comment a clinically significant reduction in the FEV1.
See generally Peabody Coal Co. v. during the public comment period Just because a statistically significant
Spese, 117 F.3d 1001, 1010 (7th Cir. reaffirming its earlier statements that it reduction was encountered in the selected
1997) (en banc); Davis, Administrative had reviewed the proposed rule and cohorts, there is no evidence at all that the
Law Treatise, § 6.7, 261–262 (3d ed. supported it. Thus, NIOSH has reductions would participate in any
1994). The revised definition will respiratory impairment or disability.
supported the Department’s proposal While there is no doubt that some miners
eliminate the need for litigation of this from the outset. Further, in each of its
issue on a claim-by-claim basis, and do have clinically significant obstruction as
communications, NIOSH repeatedly a result of coal mine dust inhalation, it
render invalid as inconsistent with the provided concrete support for its occurs in cases of severe fibrosis where a
regulations medical opinions which comments by referencing appropriate combined obstructive and restrictive defect is
categorically exclude obstructive lung present. However, there is no evidence that
studies and its own publication,
disorders from occupationally-related there is a clinically significant reduction in
National Institute for Occupational
pathologies. The Department reiterates, the FEV1 as a result of chronic obstructive
Safety and Health, Criteria for a
however, that the revised definition lung disease due to coal mine dust
Recommended Standard, Occupational
does not alter the former regulations’ (20 inhalation. None of the studies show that.
Exposure to Respirable Coal Mine Dust None of the studies can be generalized to the
CFR 718.202(a)(4), 718.203 (1999))
(1995). 62 FR 3343 (Jan. 22, 1997); average coal miner. Moreover, statistical
requirement that each miner bear the
Rulemaking Record, Exhibit 2–1. This significance neither implies nor infers
burden of proving that his obstructive
publication provides the most clinical significance. As the above studies
lung disease did in fact arise out of his
exhaustive review and analysis of the demonstrate, statistical significance has
coal mine employment, and not from
relevant scientific and medical evidence created many numbers that are not applicable
another source. Thus, instead of to the evaluation of coal miners. The
attempting to force the conclusion, as through 1995, including its evaluation
of the evidence regarding the role conclusions reached by Morgan (1, 24, 35)
one commenter contends, that all and published over two decades [ago] still
obstructive lung disorders are smoking plays in a coal miner’s
hold true: coal mine dust may cause slight,
compensable, or to require responsible respiratory status. The conclusions clinically insignificant decreases in the FEV1
operators to compensate miners for non- NIOSH reached there as a result of its in some miners. There is no evidence that
occupationally related diseases, the analysis fully support the position it has these decreases cause or contribute to
language of the proposed regulation taken in commenting during these pulmonary disability and no support for the
makes plain that only ‘‘obstructive rulemaking proceedings. Accordingly, assumption in the Department’s regulation
the Department rejects these broad- that coal dust causes or contributed to any
pulmonary disease arising out of coal
based attacks on NIOSH’s conclusions miner’s obstructive lung disease.
mine employment’’ falls within the
definition of pneumoconiosis. as a basis for altering this regulation. Rulemaking Record, Exhibit 89–37,
(e) Several comments criticize the (f) Various comments state, without Appendix C at 24–25. In a separate
Department’s consultation with NIOSH. specificity, that the Department’s review of literature relating to
Calling the Department’s solicitation of proposed revisions to the definition of emphysema in particular, Drs. Fino and
an opinion from NIOSH on the relevant pneumoconiosis lack valid scientific or Bahl conclude that ‘‘[t]he amount of
medical questions a ‘‘post-hoc attempt medical support. Other comments attack emphysema in the lungs of miners
to rationalize the validity of its medical the scientific basis of the conclusions increases with the severity of simple
conclusions’’ and a ‘‘purely political that the Department and NIOSH have coal workers’ pneumoconiosis.’’ This
act,’’ one commenter states that Dr. drawn from the evidence of record. In increase in severity as shown by chest
X-ray or autopsy ‘‘is not correlated with scientific literature. For example, selection bias. The results are not
a worsening of lung function,’’ and the Seaton, in ‘‘Coal Workers’ generalizable to the general population
relevant studies ‘‘have not shown Pneumoconiosis,’’ in Morgan WKC, of miners.’’ Rulemaking Record, Exhibit
clinically significant deterioration in Seaton A, eds., Occupational Lung 89–37, Appendix C at 21. As recognized
lung function as the emphysema Diseases (WB Saunders Co., 3d ed. by many of the authors of these studies,
worsens.’’ Rulemaking Record, Exhibit 1995) 374–406, see also Rulemaking the results are susceptible to a selection
89–37, Appendix C at 32–33. Record, Exhibit 89–37, Appendix C at bias caused by miners leaving the
The Department has reviewed all of 34, 42, reviewed much of the same industry between the time of initial
the medical and scientific evidence published evidence and made the pulmonary function measurement and
referenced in the rulemaking record, following analysis: those taken later during the follow-up
and does not agree that the record lacks period. Because of the ‘‘healthy worker
Lung function, measured as the forced
valid support for the proposition that expiratory volume in 1 second (FEV1) has effect,’’ it would be expected that
coal mine dust exposure can cause been shown both in cross-sectional and workers more prone to the respiratory
obstructive pulmonary disease. The longitudinal studies to decline in relation to impairments caused by coal mine dust
Department’s position is fully supported increasing underground dust exposure but inhalation would leave mining and the
by NIOSH, the statutory advisor to the not in relation to estimates of exposure to healthier workers would continue
black lung benefits program, which oxides of nitrogen. This decline occurs at a working. Oxman concluded that
responded favorably to the Department’s similar rate in smokers and nonsmokers, ‘‘[a]lthough it is impossible to estimate
proposed revisions. Rulemaking Record, although the loss of lung function overall is
greater in smokers, the two effects being
precisely the magnitude of this bias,’’ its
Exhibits 5–173, 72, 89–26. The direction ‘‘is towards underestimating
additive.
considerable body of literature the association between dust and loss of
documenting coal mine dust exposure’s Similarly, Becklake, in lung function, or failure to recognize a
causal effect on the development of ‘‘Pneumoconiosis,’’ in Murray J, Nadel J, more susceptible subgroup of workers.’’
chronic bronchitis, emphysema and eds., Textbook of Pulmonary Medicine Oxman at 46. Thus, this selection bias
associated airways obstruction (1st ed. 1988) 1556–1592, see also actually underestimates the association
constitutes a clear and substantial basis Criteria, Rulemaking Record, Exhibit 2– between inhalation of coal mine dust
for this aspect of the revised definition 1 at 204, concludes: and loss of lung function. As Oxman
of pneumoconiosis. Most evidence to date indicates that explains, ‘‘it is likely that the results
The term ‘‘chronic obstructive exposure to coal mine dust can cause chronic underestimate the effect of occupational
pulmonary disease’’ (COPD) includes airflow limitation in life and emphysema at dust exposure on lung function, COPD,
three disease processes characterized by autopsy, and this may occur independently and chronic bronchitis. The magnitude
airway dysfunction: chronic bronchitis, of CWP * * * The relationships between
of the bias is not clear, but it might, in
emphysema and asthma. Airflow hypersecretion of mucus (chronic bronchitis)
and chronic airflow limitation (emphysema) some cases, result in estimates that are
limitation and shortness of breath are
on the one hand and environmental factor of 50% or more of the true coefficients.’’
features of COPD, and lung function
coal mining exposure on the other appear to Oxman at 47. Moreover, as Coggon and
testing is used to establish its presence.
be similar to those found for cigarette Newman Taylor remarked in the course
Clinical studies, pathological findings, smoking. of surveying the relevant medical
and scientific evidence regarding the
Oxman and colleagues analyzed the literature, such selection effects are
cellular mechanisms of lung injury link,
available literature assessing the relatively unimportant because ‘‘[t]here
in a substantial way, coal mine dust
relationship between occupational dust is no obvious reason why the relation of
exposure to pulmonary impairment and
exposures and COPD in 1993. Oxman symptoms and lung function to dust
chronic obstructive lung disease. In
discharging its congressionally- AD, Muir DCF, Shannon HS, Stock SR, should have been weaker in those
mandated duty to recommend a Hnizdo E, Lange HJ, ‘‘Occupational dust omitted from investigation.’’ Coggon D,
permissible exposure limit for coal mine exposure and chronic obstructive Newman Taylor A, ‘‘Coal mining and
dust, NIOSH conducted a pulmonary disease: A systematic chronic obstructive pulmonary disease:
comprehensive review of the available overview of the evidence,’’ Am Rev a review of the evidence,’’ Thorax
medical and scientific evidence Resp Dis, 148:38–48 (1993); see also 53:398–407, 400 (1998); see also 64 FR
addressing the impact of coal mine dust Rulemaking Record, Exhibit 5–174, 54979 (Oct. 8, 1999) Simply stated,
exposure on coal miners. It published Appendix 8. Reports were analyzed for there is a clear relationship between
its findings in National Institute for methodological criteria including dust coal mine dust and COPD and lung
Occupational Safety and Health, Criteria exposure, control for smoking, dysfunction, and that relationship is
for a Recommended Standard, exclusion of confounding pulmonary likely to be stronger than what we are
Occupational Exposure to Respirable conditions, referral bias, and adequate able to measure.
Coal Mine Dust (1995) (Criteria). 62 FR follow-up. Thirteen reports that met Drs. Fino and Bahl conclude that any
3343 (Jan. 22, 1997); Rulemaking their rigorous screening criteria were minimal obstruction resulting from coal
Record, Exhibit 2–1. NIOSH concluded analyzed. They concluded that all of the mine dust exposure is not clinically
that ‘‘[i]n addition to the risk of simple studies found a statistically significant significant. Marine’s cross-sectional
CWP and PMF [progressive massive association between cumulative dust 1988 study of coal miners, however,
fibrosis], epidemiological studies have exposure and decline in lung function, found clinically significant decreases in
shown that coal miners have an and that coal mine dust can be a cause pulmonary function in both smokers
increased risk of developing COPD.’’ of chronic bronchitis. Unlike Drs. Fino and nonsmokers. Marine WM, Gurr D,
Criteria 4.2.3.2, Rulemaking Record, and Bahl, the Oxman analysis Jacobsen M, ‘‘Clinically important
Exhibit 2–1 at 57. concluded there was also a clinically respiratory effects of dust exposure and
Drs. Fino and Bahl disagree, but the significant loss of lung function in smoking in British coal miners,’’ Am
Department believes that their opinions smokers and nonsmokers. Rev Resp Dis, 137:106–112 (1988); see
are not in accord with the prevailing Drs. Fino and Bahl state that all of the also Criteria, § 4.2.2.1, Rulemaking
view of the medical community or the studies identifying a decline in lung Record, Exhibit 2–1 at 52. This study
substantial weight of the medical and function ‘‘are flawed because of also noted that the presence of chronic
bronchitis was clearly related to cumulative dust exposure. The table

below summarizes the study’s data:
Cumulative dust exposure (in percent)
Intermediate exposure High exposure

Zero exposure (174 ghm ¥3) (348 ghm ¥3)
Measure of respiratory dysfunction
Smoker Nonsmoker Smoker Nonsmoker Smoker Nonsmoker
FEV1 <80% .............................................. 17.1 9.7 24.2 15.5 40.0 23.9

Chronic bronchitis .................................... 30.5 7.9 41.2 14.8 52.8 26.3
Chronic bronchitis+FEV1 <80% ............... 7.6 1.5 14.9 3.9 27.3 9.8
FEV1 <65% .............................................. 5.0 3.2 8.5 5.0 14.2 7.7
NOTE TO TABLE: Percentages are estimates of prevalence of measures of respiratory dysfunction based on linear logistic models at an age of
47 years at varying amounts of cumulative dust exposure.
As can be seen from this table, the FEV1, FVC and FEV1/FVC ratio) drawn Robins TG, Attfield MD, Moulton LH,
incidence of nonsmoking coal miners from Round 1 of the National Study of ‘‘Exposure-response relationships for
with intermediate dust exposure Coal Workers’ Pneumoconiosis, along coal mine dust and obstructive lung
developing moderate obstruction (FEV1 with job-specific cumulative dust disease following enactment of the
of less than 80%) is roughly equal to the exposure estimates for U.S. Federal Coal Mine Health and Safety
incidence of moderate obstruction in underground coal miners, to determine Act of 1969,’’ Am J Ind Med 21:715–732
smokers with no mining exposure whether there was an exposure-response (1992); see also Criteria, § 4.2.2.3.1,
(15.5% v. 17.1%). Similarly, the relationship. This group of 7,139 miners Rulemaking Record, Exhibit 2–1 at 54.
incidence of non-smoking miners with worked both before and after 1970, The data they reviewed was collected
intermediate exposure developing when federally-mandated dust control during Round 4 of the National Study of
severe airways obstruction (FEV1 of less standards were implemented. Allowing Coal Workers’ Pneumoconiosis, and
than 65%) is equal to the incidence of for decrements due to age and smoking included chest X-rays, ventilatory
severe obstruction in non-mining history, Attfield and Hodous function tests (including FEV1, FVC and
smokers (5.0% for both groups). demonstrated a clear relationship FEV1/FVC ratio), and relevant histories
Nonsmokers with high exposure are at between dust exposure and a decline in for each miner. The results of this cross-
greater risk for developing moderate or pulmonary function of about 5 to 9 sectional analysis, when adjusted for
severe obstruction than unexposed milliliters a year, even in miners with age, race/ethnicity and smoking,
smokers. Smokers who mine have no radiographic evidence of clinical demonstrated a declination in
additive risk for developing significant coal workers’ pneumoconiosis. These pulmonary function attributable to coal
obstruction. The risk of chronic results were similar to those reached in mine dust-induced obstructive lung
bronchitis clearly increases with studies of British coal miners. disease.
increasing dust exposure; again smokers Drs. Fino and Bahl (Rulemaking Longitudinal studies have confirmed
who mine have an additive risk of Record, Exhibit 89–37, Appendix C at these results. See generally Criteria,
developing chronic bronchitis. The 22), as well as other commenters, § 4.2.2.3.1.2, Rulemaking Record,
message from the Marine study is criticize this study and similar ones that Exhibit 2–1 at 55. One noteworthy study
unequivocal: Even in the absence of are based on exposures prior to 1970, is Attfield MD, ‘‘Longitudinal decline in
smoking, coal mine dust exposure is when federally-mandated dust control FEV1 in United States coalminers,’’
clearly associated with clinically standards were implemented, on the Thorax 40:132–137 (1985); see also
significant airways obstruction and grounds of selection bias. Their theory Criteria, § 4.2.2.3.1.2, Rulemaking
chronic bronchitis. The risk is additive is that only those miners who worked in Record, Exhibit 2–1 at 55. Using
with cigarette smoking. a dust-controlled environment are medical data from two National Coal
Drs. Fino and Bahl criticize the representative of the current adverse Study surveys held nine years apart,
Marine study because it used the mean effects of coal mine dust exposure. This Attfield evaluated the effects of dust
of each miner’s three FEV1 values rather theory is flawed. While lower dust exposure on a group of 1,072 miners
than the highest. Rulemaking Record, exposure should reduce both the aged 20–49 years. The data included
Exhibit 89–37, Appendix C at 17, 21. occurrence and the severity of lung chest X-rays, smoking and work
This, however, does not appear to be a disease, the kinds of diseases will histories, and spirometry, as well as
significant problem given that a number remain the same. Indeed, Attfield and dust exposure estimates. After
of other studies which used the highest Hodous specifically chose to use data accounting for age, height and smoking,
FEV1 value for analysis also showed the from miners with presumably higher Attfield found a coal mine dust-related
same adverse relationship between coal dust exposures so as to facilitate the FEV1 loss of 36 to 84 ml over 11 years,
dust inhalation and pulmonary detection of exposure-response with an additional loss among smokers.
impairment. One such study was relationships. Attfield and Hodous, Am Attfield’s results confirmed similar
reported by Attfield and Hodous in Rev Respir Dis 145:605. studies analyzing data from miners in
1992. Attfield MD, Hodous TK, In any event, analysis of data from the U.K. See, e.g., Love RG, Miller BG,
‘‘Pulmonary function of U.S. coal miners who worked only in dust- ‘‘Longitudinal study of lung function in
miners related to dust exposure controlled conditions confirm the coal-miners,’’ Thorax 37:193–197
estimates,’’ Am Rev Respir Dis 145:605– connection between coal mine dust (1982); see also Criteria, § 4.2.2.3.1.2,
609 (1992); see also Criteria, § 4.2.2, exposure and obstructive lung disease. Rulemaking Record, Exhibit 2–1 at 55.
Rulemaking Record, Exhibit 2–1 at 51. Seixas and colleagues considered a Drs. Fino and Bahl contend, however,
Attfield and Hodous analyzed group of 1,185 miners who began that the average decline shown in these
pulmonary function data (specifically, working in 1970 or later. Seixas NS, studies, while perhaps statistically
relevant, is not clinically relevant and to review the evidence as it now et al., ‘‘Cigarette Smoking and Federal
does not result in any impairment. stands.’’ The authors reviewed data Black Lung Benefits in Bituminous Coal
Attfield and Hodous responded from the National Study of Coal Miners,’’ J Occ Med 31(2):100 (1989);
succinctly to such criticism, equating Workers’ Pneumoconiosis, the see also Rulemaking Record, Exhibit
pulmonary function decrements in Pneumoconiosis Field Research 89–21, attachment 5 (‘‘Well-designed
miners to the decline of lung function Programme (U.K.), studies from Sardinia investigations have now documented
in non-mining smokers from the general and Germany, and mortality and that coal dust exposure can cause
population: ‘‘If it is thought that a 5- to necropsy studies. They concluded: reductions in FEV1 that are
9-ml decrement of FEV1 per year is Reductions in lung function have been independent of age and cigarette
clinically insignificant, it must be found in relation to coal mining with smoking. * * * it appears that the major
remembered that the average decrement remarkable consistency. * * * Individually, damage caused by cigarette smoking is
for smokers was only 5 ml per pack all of the studies that have addressed the additive to the minor damage which can
year. This, in itself, is also a minor loss relation of coal mining to lung function have be attributed to coal dust.’’); Surgeon
of lung function. However it is well limitations, but these vary from one General, U.S. Department of Health and
investigation to another and often would Human Services, ‘‘Respiratory Disease
known that smoking can cause severe tend to obscure rather than exaggerate any
effects in some smokers.’’ Attfield and effect of dust. The balance of evidence points
in Coal Miners,’’ The Health
Hodous, Am Rev Respir Dis 145:608. overwhelmingly to impairment of lung Consequences of Smoking: Cancer and
Just as not all smokers develop COPD function from coal mine dust exposure. Chronic Lung disease in the Workplace,
and pulmonary dysfunction, pulmonary 313 (1985); see also Rulemaking Record,
Coggon, Thorax 53:405. Coggon and
impairment is not universal in coal Exhibit 89–21, attachment 11
Newman Taylor further concluded that:
miners. Drs. Fino and Bahl state that (concluding that ‘‘increasing coal dust
Coal mine dust inhalation can be
‘‘an average loss of FEV1 means that exposure is associated with increasing
disabling, and arguments against this
50% of the miners will have losses in airflow obstruction in both smokers and
thesis are ‘‘unconvincing’; and ‘‘the
excess of the average and 50% will have nonsmokers’’). To the extent this
combined effects of coal mine dust and
losses smaller than the average.’’ commenter advocates that tobacco
smoking on FEV1 appear to be
Rulemaking Record, Exhibit 89–37, smoking, rather than coal mine dust
additive.’’ Coggon, Thorax 53:405–406.
Appendix C at 21. This conclusion does exposure, causes the only significant
Thus, this study supports the obstructive disorders miners develop,
not stand up to scrutiny because it Department’s position.
confuses the average with the median. and that the definition of
Similarly, several of the medical
As can be seen from Marine’s table pneumoconiosis ‘‘must be tightened to
treatises and studies cited by another
above, only a minority of miners will deal with the truth of tobacco’s role in
commenter in support of its contention
have significant decrements in causing what has been compensated as
that there is no such causal link
pulmonary function. As the majority of black lung,’’ the Department reiterates
between coal mine dust exposure and
miners may have small or, perhaps in that the studies cited above, as well as
obstructive lung disease do not negate
some cases, no decline in pulmonary others, found a significant decrement in
(and, in fact, support) the conclusion coal miners’ pulmonary function in
function, the average decline of the the Department and NIOSH have
population studied can appear to be addition to that caused by smoking.
reached. See, e.g., Morgan WKC, Whether a particular miner’s disability
relatively small. Despite this, the ‘‘Pneumoconiosis,’’ in Brewis RAL,
individual miners affected can have is due to his coal mine employment or
Corrin B, Geddes DM, Gibson GJ, eds., smoking habit must be resolved on a
quite severe disease, and statistical Respiratory Medicine (WB Saunders Co., claim-by-claim basis under the criteria
averaging hides this effect. The 2d ed. 1995) 581; see also Rulemaking
amended definition clarifies that these set forth at § 718.204.
Record, Exhibit 89–21, attachment 1 (‘‘it Drs. Fino and Bahl find no scientific
miners have a right to prove their case is clear that bronchitis induced by coal- support that clinically significant
with evidence of a disabling obstructive mine dust, henceforth referred to as emphysema exists in coal miners
lung disease that arose out of coal mine industrial bronchitis, leads to a without progressive massive fibrosis,
employment. reduction in ventilatory capacity’’); Rulemaking Record, Exhibit 89–37,
Pointing to Coggon and Newman Green FHY, Vallyathan V, ‘‘Coal Appendix C at 31, but the available
Taylor’s statement that ‘‘some scientists Workers’’ Pneumoconiosis and pathologic evidence is to the contrary.
have expressed doubts as to whether Pneumoconiosis Due to Other Cockcroft evaluated 39 coal workers and
coal mine dust can cause clinically Carbonaceous Dusts,’’ in Chung A, 48 non-coal worker controls dying of
important loss of lung function,’’ Green FHY, eds., Pathology of cardiac causes in 1979. Cockcroft A,
Coggon D, Newman Taylor A, ‘‘Coal Occupational Lung Disease (2d ed. Wagner JC, Ryder R, Seal RME, Lyons
mining and chronic obstructive 1998) 189; see also Rulemaking Record, JP, Andersson N, ‘‘Post-mortem study of
pulmonary disease: A review of the Exhibit 89–21, attachment 2 (coal dust emphysema in coalworkers and non-
evidence,’’ Thorax 53:398–407 (1998); exposure is ‘‘associated with significant coalworkers,’’ Lancet 2:600–603 (1982);
see also 64 FR 54979 (Oct. 8. 1999); deficits in lung function in the absence see also Criteria, § 4.2.2.2, Rulemaking
Rulemaking Record, Exhibit 89–37, of [clinical] CWP, reinforcing the view Record, Exhibit 2–1 at 52. Centrilobular
Appendix C at 24, Drs. Fino and Bahl that COPD and CWP have independent emphysema (the predominant type
state that the studies have not shown risk factors’’); ‘‘Occupational Lung observed) was significantly more
this type of loss of pulmonary function. Disease,’’ in Hasleton PS, ed., Spencer’s common among the coal workers. The
Rulemaking Record, Exhibit 89–37, Pathology of the Lung (5th ed. 1996) severity of the emphysema was related
Appendix C at 24. The implication that 482; see also Rulemaking Record, to the amount of dust in the lungs.
Coggon and colleague agree with this Exhibit 89–21, attachment 4 (‘‘A These findings held even after
conclusion is misleading. The paragraph considerable body of evidence indicates controlling for age and smoking habits.
containing the quoted sentence notes that chronic bronchitis and emphysema Similarly, Leigh and colleagues
that there is evidence connecting COPD in coal workers is directly related to analyzed 886 miners who died between
with coal mining and that ‘‘in view of tobacco usage and cumulative exposure 1949 and 1982. Leigh J, Outhred KG,
this continuing controversy, it is helpful to respirable dust during life.’’); Roy TM McKenzie HI, Glick M, Wiles AN,
‘‘Quantified pathology of emphysema, of miners who smoked, 65% of ex- 69; see generally Coggon, Thorax
pneumoconiosis and chronic bronchitis smokers, and 42% of nonsmoking 53:404. Alveolar macrophages are cells
in coal workers,’’ BR J Indust Med miners; emphysema scores were higher that are normally situated in the alveoli,
40:258–263 (1983); see also Criteria, in patients with increasing evidence of or gas-exchange units of the lung. Their
§ 4.2.2.2, Rulemaking Record, Exhibit 2– pneumoconiotic disease; and increasing normal function is to recognize foreign
1 at 53. They found that miners with coal lung dust was associated with the substances, phagocytize (ingest) these
more years of face work had worse presence of emphysema. Forty-seven substances, and activate other
emphysema pathologically. In a percent of miners with no fibrotic inflammatory cells. Coal dust, in turn,
subsequent study of 264 underground lesions had emphysema. Ruckley causes leakage of destructive protease
coal miners exposed to mixed coal and concluded that ‘‘the results support the and elastase enzymes from alveolar
silica dust, Leigh performed a multiple conclusion that the relationship macrophages. These enzymes can
regression analysis to assess the effects observed between respirable dust and destroy the network of elastin and
of total lung coal content, total lung emphysema in coal workers is, in some collagen proteins that comprise the
silica content, smoking history, and way, causal.’’ Ruckley, Am Rev Resp Dis underlying support structure of the lung
years at the coal face on pulmonary 129:532. architecture; the release of these
function, extent of emphysema, and Drs. Fino and Bahl point to several enzymes from inflammatory cells is thus
extent of fibrosis. Leigh J, Driscoll TR, other sources in support of their view associated with the production of
Cole BD, Beck RW, Hull BP, Yang J, that clinically significant emphysema is emphysema. Lung lavage studies are
‘‘Quantitative relation between not related to coal dust exposure in the performed by washing an area of lung
emphysema and lung mineral content in absence of PMF. They quote Morgan’s with saline instilled through a fiberoptic
coalworkers,’’ Occ Environ Med 51:400– textbook, Occupational Lung Diseases, bronchoscope placed through a subject’s
407 (1994); see also Criteria, § 4.2.2.2, as saying that changes of focal throat and wedged into the lung. These
Rulemaking Record, Exhibit 2–1 at 53. emphysema cannot be equated with studies of nonsmoking coal miners with
Multiple regression analysis is a airways obstruction. The commenters simple CWP showed activation of
powerful statistical tool used to identify fail to note additional comments in the macrophages with evidence of ingestion
which of a series of variables is same textbook: of dust particles, a finding not present
responsible for an observed correlation, The increased risk of centriacinar in normal controls. Takemura T, Rom
and to eliminate apparent correlations emphysema in PMF cases away from the WM, Ferrans VJ, Crystal RG,
that can be explained by other true lesion, and, in simple pneumoconiosis, in ‘‘Morphologic characterization of
relationships. He made the following relation to dust exposure supports the alveolar macrophages from subject with
important findings: (1) The extent of hypothesis that coal dust exposure sufficient occupational exposure to inorganic
emphysema was strongly related to the to cause alveolar inflammation and fibrosis particles,’’ Am Rev Resp Dis 140:1674–
also initiates centriacinar emphysema. This
total coal content of the lung, age and seems a likely explanation for the consistent
1685 (1989); see also Criteria, § 4.3.3,
smoking; (2) in miners who were epidemiologic finding of decrements in FEV1 Rulemaking Record, Exhibit 2–1 at 69.
lifelong non-smokers, the extent of and FVC and a rise in residual volume in A subsequent lavage study of
emphysema was strongly related to coal relation to the indices of dust exposure in nonsmoking coal miners found that the
content and age; (3) the extent of coal miners. macrophages spontaneously released
emphysema was unrelated to lung silica Seaton, Occupational Lung Diseases at substances toxic to the lung, including
content; and (4) the extent of lung 400–401. Morgan’s conclusions are also reactive oxygen species and elastase.
fibrosis was related to silica content. somewhat suspect because he has These substances were released in
The authors concluded that ‘‘these admitted that at least in commenting on significantly higher quantities in miners
results provide strong evidence that the Cockcroft paper, some of his than in non-mining smokers or in non-
emphysema in coalworkers is causally criticisms were inaccurate and not valid mining nonsmokers without lung
related to lung coal content.’’ Leigh, Occ or fair. Judgement of Mr. Justice Turner, disease. Rom WN, ‘‘Basic mechanisms
Environ Med 51:400. The British Coal Respiratory Disease leading to focal emphysema in coal
Ruckley and colleagues achieved Litigation, Jan. 23, 1998, Rulemaking workers’’ pneumoconiosis,’’ Environ
similar results in examining the lungs of Record, Exhibit 72. Dr. Fino and Bahl’s Res 53:16–28 (1990); see also
450 coal workers to determine the citation to Snider, Snider GL, Rulemaking Record, Exhibit 5–174,
association between coal mine dust ‘‘Emphysema: the first two centuries- Appendix 8. As noted, the reactive
exposure and dust-related fibrosis and and beyond. A historical overview, with oxygen species damage cell membranes,
emphysema. Ruckley VA, Gauld SJ, suggestions for future reference,’’ Am cell proteins, and DNA. Over-secretion
Chapman JS, et al., ‘‘Emphysema and Rev Resp Dis 146:1333–1344 (Part 1) of these substances may overwhelm the
dust exposure in a group of coal and 146:1615–1622 (Part 2) (1992); see lung’s natural defenses (such as anti-
workers,’’ Am Rev Resp Dis 129:528– also Rulemaking Record, Exhibit 89–37, oxidants and anti-proteases). The
532 (1984); see also Criteria, § 4.2.2.2, Appendix C at 34, is also unhelpful unopposed proteases and elastases can
Rulemaking Record, Exhibit 2–1 at 53. because the articles contain no opinion destroy lung tissue, causing
Emphysema was graded by standard as to whether emphysema in coal emphysema.
techniques, smoking histories were miners can be clinically significant or Reactive oxygen substances have been
obtained by questionnaire and affects pulmonary function. Coal dust shown to damage anti-proteases in the
Pneumoconiosis Panel records, and lung exposure was plainly not the focus of lung. Anti-proteases are enzymes that
dust content was analyzed these articles. protect the lung from proteases and
pathologically. Relationships between The Department’s proposed revision elastases that are released during an
emphysema and possible explanatory to the definition of pneumoconiosis is inflammatory reaction (such as that
variables were tested by multiple also supported by the growing evidence produced by inhalation of coal mine
logistic regression models, which of the adverse affects of coal mine dust dust). Without this protection, the
exclude confounding variables in exposure at the cellular level leading to proteases and elastases can destroy the
analyzing causal effects. The authors obstructive lung disease. Criteria, 4.3, elastin and collagen that comprise the
found emphysematous changes in 72% Rulemaking Record, Exhibit 2–1 at 65– structure of the lung, resulting in
emphysematous changes. This was CWP. IL–6 has been implicated in the function, especially FEV1 and the ratio of
demonstrated in an animal model of creation of inflammatory changes of the FEV1/FVC. Decrements in lung function
coal dust inhalation, where the coal lower respiratory tract in chronic associated with exposure to coal mine dust
are severe enough to be disabling in some
dust was found to increase elastase bronchitis as well as reactive airways
miners, whether or not pneumoconiosis is
levels and cause degradation of alpha-1 disease. In addition, other cellular also present. A severe or disabling decrement
antitrypsin (one of the protective mediators, including leukotriene B4, in lung function is defined here as an FEV1
enzymes) in association with pathologic thromboxane A2, prostaglandin E2, and <65% of expected normal values; an
findings of emphysema. In vitro studies platelet activating factor, have been impairment in lung function is defined as an
have also demonstrated that the shown to be produced by alveolar FEV1 <80% of predicted normal values. An
protective anti-protease activity of macrophages or other pulmonary cells exposure-response relationship between
alpha-1 antitrypsin is decreased by in response to coal mine dust and are respirable coal mine dust exposure and
decrements in lung function has been
exposure to coal dust. These well known to play a role in the
observed in cross-sectional studies and
observations support the theory that production of reactive airways disease. confirmed in longitudinal studies.
dust-induced emphysema and smoke- Thus, there is considerable basic
induced emphysema occur through scientific data linking coal dust to the Criteria, 4.2.3.2 (citations omitted),
similar mechanisms—namely, the development of obstructive airways Rulemaking Record, Exhibit 2–1 at 57.
excess release of destructive enzymes disease. That coal mine dust exposure can cause
from dust- (or smoke-) stimulated One commenter repeatedly accuses obstructive lung disease is now a well-
inflammatory cells in association with a the Department of not supporting its documented fact.
decrease in protective enzymes in the definitional change with ‘‘peer- Finally, the Department’s position is
lung. reviewed’’ scientific and medical consistent with the growing body of
Animal and human studies have also studies, but does not point to any study case law recognizing that obstructive
shown that coal mine dust inhalation or article in particular. The Department lung diseases can arise from coal mine
can recruit neutrophils, another rejects this assertion. Each of the articles dust exposure. See generally Labelle
inflammatory cell, into the lung. Rom and studies cited above, as well as the Processing Co. v. Swarrow, 72 F.3d 308,
WN (1990). Activated neutrophils majority relied upon by NIOSH in the 315 (3d Cir. 1995) (‘‘Chronic bronchitis,
produce elastase as well as other Criteria document, appeared in a peer- as a chronic pulmonary disease, falls
inflammatory mediators. The reviewed journal: American Review of within the legal definition of
recruitment of neutrophils and the Respiratory Disease, American Journal pneumoconiosis.’’); Kline v. Director,
activation of alveolar macrophages is of Industrial Medicine, Thorax, Journal OWCP, 877 F.2d 1175, 1178 (3d Cir.
greater in nonsmoking coal miners with of Occupational Medicine, Lancet, 1989) (The legal definition of
pulmonary impairment than either non- British Journal of Industrial Medicine, pneumoconiosis ‘‘encompasses a wider
miners or nonsmoking miners without Occupational Environmental Medicine, range of afflictions than does the more
pulmonary impairment. This suggests Environmental Research, and others. restrictive medical definition of coal
that a combination of coal mine dust The textbooks relied upon are authored workers’ pneumoconiosis.’’);
exposure and host susceptibility may be and edited by highly respected Richardson v. Director, OWCP, 94 F.3d
required to produce disease. Thus, professionals in the field. Textbook 164, 166 n.2 (4th Cir. 1996) (‘‘COPD, if
although many of the studies evaluating editors serve as peer-reviewers of the it arises out of coal-mine employment,
mechanisms of pathogenesis of coal relevant published literature because clearly is encompassed within the legal
mine dust exposure concentrate on the they comprehensively survey, evaluate definition of pneumoconiosis, even
development of fibrosis, there is the validity of, and comment on, the though it is a disease apart from clinical
considerable basic scientific data literature. Seaton’s review in Morgan pneumoconiosis.’’); Warth v. Southern
linking coal mine dust to the and Seaton’s Occupational Lung Disease Ohio Coal Co., 60 F.3d 173, 175 (4th Cir.
development of obstructive airways is a good example. Moreover, the 1995) (‘‘Chronic obstructive lung
disease. NIOSH Criteria document, Rulemaking disease * * * is encompassed within
Moreover, cytokines, which are Record, Exhibit 2–1, received extensive the definition of pneumoconiosis for
chemical substances released from a peer review prior to its publication. See purposes of entitlement to Black Lung
number of cells in the lung, have been Criteria, Rulemaking Record, Exhibit 2– benefits.’’); Barber v. Director, OWCP, 43
implicated in the development of lung 1 at xxii–xxiv. F.3d 899, 901 (4th Cir. 1995)
disease in coal miners. Criteria, § 4.3.1, It bears repeating that in developing (‘‘physicians generally use
Rulemaking Record, Exhibit 2–1 at 65– its recommended dust exposure ‘pneumoconiosis’ as a medical term that
69. Tumor necrosis factor-α (TNF) and standard, NIOSH carefully reviewed the comprises merely a small subset of the
Interleukin 6 (IL–6) are two of them. available evidence on lung disease in afflictions compensable under the Act’’);
TNF is released by alveolar coal miners. NIOSH also considered the Bethlehem Mines Corp. v. Massey, 736
macrophages as well as other cells in strength of the evidence, including the F.2d 120, 124 (4th Cir. 1984)
response to coal dusts (as well as other sampling and statistical analysis (recognizing that emphysema can be
mineral dusts). TNF stimulates lung techniques used, Criteria, § 7.3.4, aggravated by coal dust exposure);
fibrosis. Patients with progressive CWP Rulemaking Record, Exhibit 2–1 at 124, Peabody Coal Co. v. Holskey, 888 F.2d
have higher TNF release from lung and concluded that the science 440, 442 (6th Cir. 1989) (substantial
monocytes. TNF release is also provided a substantial basis for adopting evidence supported ALJ’s decision to
increased in coal miners with airflow a permissible dust exposure limit. credit doctor who believed miner’s
obstruction. TNF has been demonstrated NIOSH summarized its findings based chronic obstructive pulmonary disease
to be an important mediator in on some of the studies detailed above, was related to coal dust exposure over
obstructive airways diseases including along with others, as follows: doctor who believed the disease was
COPD and asthma. Alveolar caused solely by cigarette smoking);
In addition to the risk of simple CWP and
macrophages have been shown to PMF, epidemiological studies have shown Campbell v. Consolidation Coal Co., 811
release IL–6 in response to exposure to that coal miners have an increased risk of F.2d 302, 304 (6th Cir. 1987) (where
coal mine dust. Increased IL–6 levels developing COPD. COPD may be detected miner had obstructive lung disease and
were noted in lungs of coal miners with from decrements in certain measures of lung no evidence demonstrated it was not
related to coal mine employment, revisions to the regulation. The pneumoconiosis. 20 CFR
employer failed to rebut interim Department declines to follow this 718.202(a)(1)(ii)(E) (1999). While this
presumption of entitlement); Freeman suggestion. As set forth above, the information may show the incidence of
United Coal Mining Co. v. OWCP, 957 relevant scientific and medical clinical pneumoconiosis in a given
F.2d 302, 303 (7th Cir. 1992) information available on these topics population of coal miners, it is not
(recognizing that the Act’s definition of has been thoroughly reviewed by particularly relevant to the other subset
pneumoconiosis encompasses highly-qualified experts, including of diseases compensable under the
obstructive disease caused in whole or NIOSH, the advisor designated by Black Lung Benefits Act, namely, any
in part by exposure to coal dust); Old Congress to consult with the chronic lung disease arising out of coal
Ben Coal Co. v. Prewitt, 755 F.2d 588, Department in developing criteria for mine employment.
591 (7th Cir. 1985) (recognizing that total disability due to pneumoconiosis (k) Another comment implies that the
chronic obstructive pulmonary disease under the Black Lung Benefits Act. 30 proposed definitional changes adopt
‘‘fits the statutory definition’’ of U.S.C. 902(f)(1)(D). Accordingly, to the arbitrary medical ‘‘presumptions’’
pneumoconiosis); Associated Elec. extent these commenters note that without consultation with any
Coop., Inc. v. Hudson, 73 F.3d 845, 847 ‘‘since coal-workers’’ pneumoconiosis is pulmonary experts. As discussed above,
(8th Cir. 1996) (affirming award of a medical condition, * * * this all of the scientific and medical
benefits based on medical evidence of determination [establishing a proper evidence upon which the Department
‘‘severe obstructive lung disease caused definition of pneumoconiosis] should be relies has been thoroughly reviewed and
by coal dust exposure’’); Consolidation left to the medical experts,’’ the evaluated by experts in the field. It is
Coal Co. v. Hage, 908 F.2d 393, 395 (8th comment ignores both the statutory not the Department’s intent to create a
Cir. 1990) (chronic obstructive lung definition of pneumoconiosis and the ‘‘presumption’’ with the proposed
disease ‘‘constitutes a type of ailment large body of scientific evidence already revisions to the definition. Instead, the
which Congress deems sufficient to reviewed by medical experts, as revisions are designed to define
entitle a claimant to Black Lung outlined above. pneumoconiosis in accordance with the
benefits’’); Bradberry v. Director, OWCP, (i) One comment criticizes the best science currently available to the
117 F.3d 1361, 1368 (11th Cir. 1997) Department for not considering two Department while leaving with the
(‘‘COPD that arises from coal-mine major sources of information regarding miner the burden of persuading the
employment falls within the legal U.S. coal miners: the National Coal factfinder that he has a lung disease
definition of pneumoconiosis.’’); Study, which the commenter states has falling within this definition.
Stomps v. Director, OWCP, 816 F.2d provided a wealth of longitudinal (l) Two comments note that the
1533, 1536 (11th Cir. 1987) (ordering information about the health of miners, proposed definition (at least insofar as
award of benefits on strength of medical and the NIOSH X-ray Surveillance it recognizes that both obstructive and
opinion that miner’s totally disabling Program. The commenter is incorrect. restrictive lung disease may be caused
chronic obstructive pulmonary disease The information from both of these by exposure to coal mine dust) was
was caused in part by coal mine programs is a major focus of NIOSH’s rejected by Congress and should not be
employment). Criteria document, Rulemaking Record, adopted. The Department has already
Contrary to the commenters’ Exhibit 2–1, and is further analyzed in responded to this criticism. 64 FR 54972
argument, then, the record does contain many of the articles considered by the (Oct. 8, 1999). No further discussion is
overwhelming scientific and medical Department and NIOSH in proposing necessary.
evidence demonstrating that coal mine the revisions. (m) Two comments, while supporting
dust exposure can cause obstructive (j) One comment generally objects to the proposed changes, ask the
lung disease. The Department therefore the proposed revisions and urges the Department to amend the regulation
declines to change the definition of Department to collect data developed by further by requiring factfinders to
pneumoconiosis as proposed. the Universities of Kentucky and categorically reject as non-conforming
(g) One comment suggests that the Louisville since the 1996 any physician’s opinion stating either
Department delete the term comprehensive reform of the Kentucky that coal dust cannot cause, or causes
‘‘anthracosis’’ from the definition of state workers’ compensation law, a only trivial, obstructive lung
pneumoconiosis, contending that it is a program the commenter states is based impairments, or that coal dust-induced
term commonly used to denote on objective medical findings of lung diseases cannot manifest
anthracotic pigmentation, without ‘‘certified B readers.’’ The commenter themselves after a miner’s exposure to
associated disease process, on biopsy or believes that this data would more coal mine dust ceases. The commenters
autopsy of the lungs. The Department accurately reflect modern day dust state that such a change would forestall
has accommodated this concern in the control in coal mining than the studies parties opposing miners’ entitlement
proposed revisions to § 718.202(a)(2). relied upon by the Department. As from needlessly prolonging litigation. A
The revised version of § 718.202(a)(2) discussed above, the Department’s physician’s opinion based on a premise
explicitly provides that ‘‘[a] finding in conclusions are fully supported by the fundamentally at odds with the statute
an autopsy or biopsy of anthracotic ample data it has already reviewed, and regulations is flawed, and the
pigmentation * * * shall not be including data generated from time factfinder must weigh that physician’s
sufficient, by itself, to establish the periods post-dating implementation of opinion accordingly. See, e.g., Robinson
existence of pneumoconiosis.’’ 64 FR federally-mandated dust control v. Missouri Mining Co., 955 F.2d 1181,
55013 (Oct. 8, 1999). Thus, the measures. Moreover, the Department 1183 (8th Cir. 1992); Penn Allegheny
Department does not believe that a does not believe this information would Coal Co. v. Mercatell, 878 F.2d 106,
change to the definition of be particularly relevant to the proposed 109–110 (3d Cir. 1989). This principle
pneumoconiosis is necessary. revisions of the definition of will continue to govern under the
(h) Several comments suggest that the pneumoconiosis. A ‘‘certified B reader’’ revised regulation. Thus, the
Department appoint an expert panel to is a physician proved by examination to Department does not believe a change to
review the scientific and medical be proficient in assessing the quality of the proposed regulation is necessary.
evidence on the obstructive disease, chest X-rays and in using the ILO–U/C (n) Several comments support the
latency and progressivity proposed system to classify X-rays for proposal, noting that the revisions to the
definition of pneumoconiosis are purposes of § 718.202(a)(4)). favors consideration of new and more
supported by the current state of Furthermore, § 718.202(a)(4) already accurate diagnostic technologies as they
medical knowledge. recognizes that a diagnosis of become available in the future. See
(o) Two comments urge the pneumoconiosis may be made based on preamble to § 718.107, 62 FR 3343 (Jan.
Department to join the lawsuit filed by a documented and reasoned medical 22, 1997). Any party may support or
the Department of Justice to recover opinion despite a negative x-ray. Warth challenge the probative value of a
money from the tobacco industry for v. Southern Ohio Coal Co., 60 F.3d 173, particular test with expert opinions. No
costs incurred by the black lung 174–75 n.* (4th Cir. 1995) (holding useful purpose would therefore be
program for compensating and treating physician’s opinion that served by adopting a blanket exclusion
smoking-related disabilities. The pneumoconiosis cannot be diagnosed of any particular type of testing. (ii)
comment is not directed to any absent positive x-ray or tissue samples Based on the alleged unreliability of CT
regulatory proposal, and no response is conflicts with § 718.202(a)(4) because scans, two comments urge the
warranted. physician’s diagnosis may be based on Department to make clear that a
(p) No other comments were received other clinical evidence notwithstanding claimant may refuse to undergo a CT
concerning this section, and no further negative x-ray). Finally, only a scan without prejudicing the
changes have been made in it. physician can determine the diagnostic adjudication of his or her claim. The
20 CFR 718.202 value of a negative x-ray in assessing the Department rejects this position. The
presence or absence of a respiratory or adjudicator should determine whether a
(a) In the initial notice of proposed pulmonary disease in a particular
rulemaking, the Department proposed claimant’s refusal to undergo a CT scan
miner. The law only prohibits making (or any other medical test) is reasonable
changing § 718.202 only to the extent of the negative x-ray the sole and
clarifying that a diagnosis of anthracotic in light of all relevant circumstances in
conclusive basis for ruling out the the particular case. A general
pigment by biopsy, standing alone, is disease.
not equivalent to a diagnosis of exoneration for all claimants refusing
(d) One comment would limit
pneumoconiosis. Former § 718.202(a)(2) CT scans is not warranted, especially
relevant radiological qualifications to
imposed this limitation with respect to since the Department does not endorse
board-certification in radiology and
autopsy evidence only, and the the commenters’ premise that this
certification as a B-reader. Although
Department noted there was no reason technology is necessarily unreliable in
these two qualifications may encompass
to treat the two types of evidence the absence of standardized criteria for
most physicians’ expert training, a rigid
differently. 62 FR 3345, 3376 (Jan. 22, rule prohibiting consideration of any interpreting it. (iii) One comment
1997). The Department did not propose other aspect of a physician’s background contends the CT scan is sufficiently
any further changes to § 718.202 in the is undesirable. The adjudicator should reliable that a negative result effectively
second notice of proposed rulemaking, consider any relevant factor in assessing rules out the existence of
although the regulation remained open a physician’s credibility, and each party pneumoconiosis. The statutory
for comment. 64 FR 54971 (Oct. 8, may prove or refute the relevance of that definition of ‘‘pneumoconiosis,’’
1999). factor. See Worhach v. Director, OWCP, however, encompasses a broader
(b) One comment supports the 17 Black Lung Rep. 1–105, 1–108 (1993) spectrum of diseases than those
Department’s proposed change as (holding adjudicator may properly pathologic conditions which can be
consistent with mainstream scientific consider physician’s professorship in detected by clinical diagnostic tests
findings. Several other comments radiology in weighing radiological such as x-rays or CT scans. See generally
support this change, but also advocate qualifications under § 718.202(a)(1)); Island Creek Coal Co. v. Compton, F.3d,
adopting the criteria for diagnosing compare Melnick v. Consolidation Coal No. 98–2051, 2000 WL 524798, *4 (4th
pneumoconiosis by autopsy or biopsy Co., 16 Black Lung Rep. 1–31, 1–37 Cir. May 2, 2000) (reviewing medical
developed by the American College of (1991) (en banc) (holding adjudicator and legal definitions of
Pathologists and Public Health Service. may not consider physician’s ‘‘pneumoconiosis,’’ the latter of which
For the reasons set out in the preamble ‘‘prestigious teaching position’’ outside is broader). For purposes of the Black
to § 718.106, the Department cannot the field of radiology under Lung Benefits Act, ‘‘pneumoconiosis’’
make this change. § 718.202(a)(1) in assessing physician’s includes any ‘‘chronic dust disease of
(c) Two comments urge the inclusion radiological competence). the lung and its sequelae, including
of language stating that a negative chest (e)(i) Three comments favor language respiratory and pulmonary
x-ray cannot form the basis of a recognizing that CT scans are not impairments, arising out of coal mine
physician’s reasoned finding of no reliable diagnostic tools for evaluating employment.’’ 30 U.S.C. 902(b). A CT
pneumoconiosis as the disease is the presence or absence of scan may provide reliable evidence in a
defined in the statute and regulations. pneumoconiosis because no particular claim that the miner does not
The suggested addition is unnecessary standardized criteria exist for have any evidence of the disease which
for several reasons. The Black Lung interpreting them. Another comment, can be detected by that particular
Benefits Act already prohibits the denial however, argues that a negative CT scan diagnostic technique. The record,
of a claim solely on the basis of a effectively precludes a diagnosis of however, does not contain any medical
negative x-ray. 30 U.S.C. 923(b). A pneumoconiosis because of its level of evidence demonstrating the capacity of
physician’s opinion ruling out the clinical sophistication. General language CT scans to rule out the existence of all
presence of the disease based solely on accepting or rejecting the use of CT diseases ‘‘arising out of coal mine
a negative x-ray would be similarly scans is not necessary. The Department employment.’’ See Compton, F.3d, 2000
insufficient; such an opinion would did not propose any such language, or WL 524798, *4 (noting that a medical
amount to no more than a repetition of develop the record to ascertain the diagnosis of no pneumoconiosis is not
the x-ray findings. See Worhach v. medical community’s views. The equivalent to a diagnosis of no legal
Director, OWCP, 17 Black Lung Rep. 1– comments take diametrically opposite pneumoconiosis), citing Hobbs v.
105, 1–110 (1993) (physician’s opinion views on the use of these tests, which Clinchfield Coal Co., 45 F.3d 819, 821
which merely restates x-ray findings is provides no basis for adopting either (4th Cir. 1995). The Department
not a diagnosis of pneumoconiosis for view. Furthermore, the Department therefore cannot accept the commenter’s
position that a negative CT scan is self- concerning the proposed regulation. 64 miner’s disability if it either has an
sufficient evidence that the miner does FR 54979–80 (Oct. 8, 1999). Several adverse effect on the miner’s respiratory
not have ‘‘pneumoconiosis’’ for comments expressed both support for, or pulmonary condition or worsens a
purposes of the statute. and opposition to, the Department’s totally disabling respiratory or
(e) No other comments were received rejection of Vigna’s holding that a pre- pulmonary impairment caused by a
concerning this section, and no changes existing totally disabling impairment disease or exposure unrelated to coal
have been made in it. which is unrelated to coal mine mine employment. §§ 718.204(c)(1)(i),
20 CFR 718.204 employment precludes entitlement 718.204(c)(1)(ii). In neither proposal did
under the BLBA. The Department the Department describe the extent to
(a)(i) The Department proposed concluded the commenters had which pneumoconiosis must have
several significant changes to § 718.204 provided no reason for changing the produced an adverse effect or worsened
in the initial notice of proposed proposed regulation. The Department a totally disabling respiratory
rulemaking. 62 FR 3344–45, 3377–78 also rejected comments which impairment. The Department did not
(Jan. 22, 1997). One revision clarified recommended adopting a ‘‘whole mean to alter the current law through its
that ‘‘total disability’’ does not take into person’’ standard for total disability, proposals, however, or to suggest that
consideration any disabling non- rather than the proposed definition any adverse effect, no matter how
respiratory conditions, i.e., a miner may limiting disability to pulmonary and limited, was sufficient to establish total
be totally disabled for purposes of the respiratory impairments. The disability due to pneumoconiosis.
Black Lung Benefits Act (BLBA) commenters offered no rationale in Rather, the Department meant only to
notwithstanding the existence of any support of the requested change other codify the numerous decisions of the
independently disabling non- than a statutory interpretation of ‘‘total courts of appeals which, in the process
respiratory/pulmonary impairments. disability’’ previously rejected by two of deciding when a miner is totally
This change emphasized the circuit courts in favor of the disabled due to pneumoconiosis, have
Department’s disagreement with Department’s position. With respect to also ruled on what evidence is legally
Peabody Coal Co. v. Vigna, 22 F.3d 1388 ‘‘disability causation,’’ the Department sufficient to establish that element of
(7th Cir. 1994) (holding claimant’s rejected: challenges to its authority to entitlement. In order to clarify this
entitlement precluded by disabling define ‘‘disability due to consistent intent, the Department has
stroke which was unrelated to coal mine pneumoconiosis’’ given the statute’s added the word ‘‘material’’ to
employment and occurred before broad grant of rulemaking authority and § 718.204(c)(1)(i) and ‘‘materially’’ to
evidence of disability due to the ambiguity in the statutory term; § 718.204(c)(1)(ii). In so doing, the
pneumoconiosis); contra Youghiogheny various alternative formulations of the Department intends merely to
& Ohio Coal Co. v. McAngues, 996 F.2d disability causation standard in place of
130 (6th Cir. 1993), cert. den. 510 U.S. implement the holdings of the courts of
‘‘substantially contributing cause’’ appeals. Thus, evidence that
1040 (1994) (holding miner’s disabling inasmuch as the Department’s definition
injuries from automobile accident pneumoconiosis makes only a
reflected a general consensus in the negligible, inconsequential, or
irrelevant to disability determination existing caselaw; and arguments that the
under BLBA). Another revision codified insignificant contribution to the miner’s
‘‘substantially contributing cause’’ total disability is insufficient to
holdings in two circuits that standard permitted awards based solely
‘‘disability’’ for purposes of the BLBA is establish that pneumoconiosis is a
on smoking-related disability because substantially contributing cause of that
a totally disabling respiratory or such awards are contrary to both the
pulmonary impairment, and not ‘‘whole disability.
BLBA and judicial precedent. Other
person’’ disability. The Department also than the restoration of language to The Department is also mindful,
proposed a definition for ‘‘disability § 718.204(b)(2)(iv), the Department did however, that Congress enacted the Act
causation’’ to harmonize the various not propose any additional changes to in large part to permit benefit awards to
formulations of that standard in circuit § 718.204. 64 FR 54979–80 (Oct. 8, miners whose entitlement under state
court decisions: a miner is totally 1999). workers’ compensation laws was
disabled ‘‘due to pneumoconiosis’’ if the (b) In both the first and second notices precluded by burdensome causation
disease is a ‘‘substantially contributing of proposed rulemaking, the Department requirements. Adams v. Director,
cause’’ of the miner’s disability. proposed identical language defining OWCP, 886 F.2d 818, 825 (6th Cir.
Similarly, the Department proposed total disability due to pneumoconiosis. 1989); Mangus v. Director, OWCP, 882
recognizing that pneumoconiosis may 62 FR 3345, 3377; 64 FR 54979–54980, F.2d 1527, 1530–1531 (10th Cir. 1989).
worsen a totally disabling respiratory or 55014. The Department explained its Moreover, the courts have also
pulmonary impairment which is itself authority to define this statutory recognized the difficulties that would
unrelated to coal mine employment. element of entitlement and proposed confront a miner who must prove the
Finally, the Department proposed a using a substantially contributing cause relative amounts that various causal
number of editorial changes to § 718.204 standard. Thus, a miner would be found elements contribute to his totally
to rationalize its structure. 62 FR 3344– totally disabled due to pneumoconiosis disabling respiratory or pulmonary
45 (Jan. 22, 1997). (ii) In the second if he establishes that his impairment. See Compton v. Inland
notice of proposed rulemaking, the pneumoconiosis is a substantially Steel Coal Co., 933 F.2d 477, 481–483
Department proposed a minor revision contributing cause of his totally (7th Cir. 1991); Adams, 886 F.2d at 825;
to § 718.204(b)(2)(iv) by restoring disabling respiratory or pulmonary Mangus, 882 F.2d at 1530–1531. The
language from 20 CFR 718.204(c)(4) impairment. In both proposals, the courts have held that a claim will not be
(1999), which had been omitted Department explained that this standard denied simply because a physician
inadvertently. The language set forth the was based on court of appeals precedent reasonably may be unwilling or unable
circumstances under which a medical which had developed since 1989 and to account, as a percentage or otherwise,
report may establish the miner’s total varied very little from circuit to circuit. for the exact degree of impairment
disability. 64 FR 54979, 55014 (Oct. 8, The Department also proposed that caused by pneumoconiosis. See, e.g.,
1999). The Department also responded pneumoconiosis be considered a Barger v. Abston Constr. Co., 196 F.3d
to numerous comments it had received substantially contributing cause of the 1261 (11th Cir. 1999) (Table) (opinion
that pneumoconiosis was ‘‘at least a respiratory impairments cannot be stroke because the stroke was unrelated
partial contributing cause’’ of miner’s considered in a disability to coal mine employment and occurred
disability sufficient to prove disability determination. McAngues, 996 F.2d at before any evidence the miner was
due to pneumoconiosis); Cross 134–35, quotes with approval the disabled by pneumoconiosis. The
Mountain Coal Co. v. Ward, 93 F.3d following language from Twin Pines Department disagrees with Vigna. Non-
211, 218 (6th Cir. 1996) (opinion that Coal Co. v. U.S. Dept. of Labor, 854 F.2d respiratory or pulmonary disabilities
miner’s ‘‘impairment is due to his 1212 (10th Cir. 1988): may co-exist with total disability due to
combined dust exposure, coal workers’’ * * * [A] review of the cases, the statute, pneumoconiosis, but the former are
pneumoconiosis as well as his cigarette its legislative history, and its interpretation irrelevant for purposes of determining
smoking history’’ sufficient); Benjamin by the benefits review board * * * shows whether a miner is entitled to black lung
Coal Co. v. McMasters, 27 F.3d 555 (3d that the statute is intended to confer special benefits. Consequently, non-respiratory
Cir. 1994) (Table) (opinions that (1) benefits on miners who are disabled due to or pulmonary impairments have no
pneumoconiosis was the ‘‘least pneumoconiosis whether or not they are relevance to the disability causation
significant’’ factor contributing to disabled from a different cause. Even when standard, and the limitation on
other causes are themselves independently
miner’s disability, and (2) coal dust disabling ‘[t]he concurrence of two sufficient
introducing evidence concerning such
exposure and cigarette smoking disabling medical causes one within the conditions is appropriate.
contributed to miner’s impairment but ambit of the Act, and the other not, will in (e) Three comments oppose the
doctor was unable ‘‘to differentiate no way prevent a miner from claiming revised definition of ‘‘total disability’’ to
between the effects of the two causes’’ benefits under the Act.’ the extent it requires proof of a totally
sufficient); Compton v. Inland Steel 854 F.2d at 1215, quoting Peabody disabling respiratory or pulmonary
Coal Co., 933 F.2d 477, 479 (7th Cir. Coal Co. v. Director, OWCP [Huber], 778 impairment. The commenters urge the
1991) (opinion that ‘‘pneumoconiosis F.2d 358, 363 (7th Cir. 1985); see also Department to adopt a definition which
* * * was one of the conditions that Cross Mountain Coal Co. v. Ward, 93 incorporates a ‘‘whole person’’
brought about the pulmonary F.3d 211, 217 (6th Cir. 1996). This line definition of disability, i.e., total
impairment’’ sufficient); Robinson v. of authority from three federal courts of disability based on a combination of
Pickands Mather & Co., 914 F.2d 35, 36 appeals fully supports the Department’s pneumoconiosis and any other physical
(4th Cir. 1990) (opinion that miner’s revision of § 718.204(a). Although Vigna impairments which prevent the miner
‘‘disability was consistent with adopts a contrary interpretation of the from performing his or her usual coal
occupational pneumoconiosis’’ BLBA, the Seventh Circuit did not mine work or comparable and gainful
sufficient); Lollar v. Alabama By- address its own precedent in Huber or work. The Department has previously
Products Corp., 893 F.2d 1258, 1267 the contrary decisions in McAngues and rejected the ‘‘whole person’’ standard in
(11th Cir. 1989) (physician’s diagnosis Twin Pines. Accordingly, the both the initial and second notices of
of ‘‘restrictive pulmonary functions and Department does not consider Vigna a proposed rulemaking. 62 FR 3345 (Jan.
pleural disease by chest x-ray with sufficient basis for altering the 22, 1997); 64 FR 54979 (Oct. 8, 1999).
minimal parenchymal disease, all of regulation. (ii) Several comments The Department has consistently taken
which is consistent with coal workers’ support the Department’s position. the position that proof of a totally
pneumoconiosis,’’ sufficient); Adams v. (d) One comment contends the disabling respiratory or pulmonary
Director, OWCP, 886 F.2d 818, 826 (6th limitations on introducing evidence impairment is an essential element of a
Cir. 1989) (diagnosis of ‘‘total disability concerning non-respiratory or miner’s claim for black lung benefits.
resulting from a combination of pulmonary impairments deprive the See, e.g., Beatty v. Danri Corp. &
pneumoconiosis, emphysema and ‘‘but for’’ disability causation standard Triangle Enter., 49 F.3d 993, 1001 (3d
chronic obstructive lung disease’’ of any practical meaning in terms of Cir. 1995); Jewell Smokeless Coal Corp.
sufficient); Bonessa v. United States proving that pneumoconiosis played v. Street, 42 F.3d 241, 243 (4th Cir.
Steel Corp., 884 F.2d 726 (3d Cir. 1989) little, if any, role in the miner’s 1994); Lollar v. Alabama By-Products
(opinion that pneumoconiosis made a disability. The Department disagrees Corp., 893 F.2d 1258, 1262–1263 (11th
‘‘substantial contribution’’ to miner’s with the commenter’s position for two Cir. 1990); Bosco v. Twin Pines Coal Co.,
disability sufficient); Mangus v. reasons. First, the Department has 892 F.2d 1473, 1480 (10th Cir. 1989);
Director, OWCP, 882 F.2d 1527 (10th adopted a ‘‘substantially contributing Adams v. Director, OWCP, 886 F.2d 818,
Cir. 1989) (evidence that miner’s cause’’ standard, which is not the 820 (6th Cir. 1989). Adoption of a
pneumoconiosis caused complications equivalent of a ‘‘but for’’ standard. ‘‘whole person’’ definition of total
requiring removal of entire lung during ‘‘Substantially contributing cause’’ disability would greatly expand the
surgery intended to remove only part of means pneumoconiosis has a material black lung benefits program and
lung as treatment of lung cancer, adverse effect on a miner’s respiratory transform it into a general disability
sufficient). or pulmonary condition program for coal miners. The
(c)(i) One comment states the (§ 718.204(c)(1)(i)). This standard is less Department is convinced such a result
Department has not justified its revision rigorous than a ‘‘but for’’ test. Second, has never been the intent of Congress.
of § 718.204(a) making disabling non- only respiratory and pulmonary Moreover, unlike the Social Security
pulmonary/respiratory impairments impairments are relevant to determining Administration which has regulations,
irrelevant in determining whether a whether the miner is totally disabled for procedures, and personnel devoted to
miner is totally disabled under the purposes of the Black Lung Benefits Act, the evaluation of impairments from the
BLBA. The Department has previously and identifying the causes of that ‘‘whole person’’ perspective, the
addressed this issue in both the initial disability. The commenter’s position Department simply is not equipped to
and second notices of proposed effectively rests on the Seventh Circuit’s evaluate such impairments. The
rulemaking. 62 FR 3344–45 (Jan. 22, interpretation of disability causation in Department’s approach to the definition
1997); 64 FR 54979 (Oct. 8, 1999). In Peabody Coal Co. v. Vigna, 22 F.3d 1388 of total disability is not undermined by
both instances, the Department cited (7th Cir. 1994). In that decision, the the allowance of survivors’ claims
McAngues, 996 F.2d 130, as authority Court held a miner’s entitlement to where death was due in part to
for its view that non-pulmonary/ benefits was precluded by his disabling nonrespiratory or nonpulmonary
conditions but was actually hastened by totally disabling respiratory or (i) One comment suggests the role of
pneumoconiosis. pulmonary impairment which is itself smoking in causing disability
Allowance of survivors’ claims in unrelated to coal mine employment. undermines the regulatory
such situations is consistent with the § 718.204(c)(1)(ii). The Department presumptions by negating the validity of
legislative history of the 1981 rejects both positions. The Department their factual premises. Specifically, the
amendments to the BLBA. 62 FR 3345 has previously addressed comments commenter argues that the rational
(Jan. 22, 1997); 48 FR 24276–77 (May contesting its authority to issue a connection between established and
31, 1983), In addition, the determination regulation defining disability causation presumed facts is broken if the miner
of whether pneumoconiosis actually in the second notice of proposed smoked. The Department disagrees with
hastened death in a given case does not rulemaking. 64 FR 54979–80 (Oct. 8, this analysis. The presumptions
require the types of regulations, 1999). The Department cited the explicit contained in §§ 718.302–718.306 are all
procedures and personnel that would be rulemaking authority conferred by derived from the BLBA. See 30 U.S.C.
required by a ‘‘whole person’’ disability Congress in 30 U.S.C. 902(f)(1), which 921(c)(1) [implemented by § 718.302];
definition. makes ‘‘total disability’’ subject to the 921(c)(2) [implemented by § 718.303];
(f) One comment opposes the meaning established by the Department 921(c)(3) [implemented by § 718.304];
requirement in § 718.204(b)(2)(iv) that a through regulations. The Department 921(c)(4) [implemented by § 718.305];
physician’s opinion must be also noted that benefits may be paid for 921(c)(5) [implemented by § 718.306].
documented as well as reasoned in total disability ‘‘due to The regulatory presumptions are
order to establish the existence of a pneumoconiosis,’’ 30 U.S.C. 922(a)(1), therefore authorized by the statute itself.
totally disabling respiratory or but that ‘‘due to’’ is ambiguous and The Supreme Court has upheld the
pulmonary impairment. The commenter therefore a valid subject for regulatory constitutionality of 30 U.S.C. 921(c)(1)–
states that an opinion should be interpretation. With respect to the
considered sufficient if it is ‘‘reasoned.’’ (4) in Usery v. Turner Elkhorn Mining
‘‘worsening’’ standard, the Department Co., 428 U.S. 1, 22–31 (1976). In the
The commenter also criticizes the adopted this definition in response to
regulation for failing to define the 1981 amendments to the BLBA,
the Fourth Circuit’s decision in Dehue Congress limited the applicability of 30
requisite documentation. The Coal Co. v. Ballard, 65 F.3d 1189 (4th
commenter does not state a basis for U.S.C. 921(c)(2) and (4) to claims filed
Cir. 1995). In that decision, the Court before January 1, 1982, and 921(c)(5) to
changing the regulation. The most held that a miner who had totally-
fundamental requirement for any claims filed before June 30, 1982.
disabling lung cancer was not entitled to Consequently, three of the statutory
physician’s opinion is that it identify benefits because his pneumoconiosis, by
the information and data upon which presumptions have little effect on the
definition, could not contribute to his adjudication of black lung claims at this
the physician relies in order to form a disability. The Department believes a
judgment about the miner’s pulmonary time. The Department also does not
miner should not be denied benefits if accept the commenter’s premise that
condition. Unless the adjudicator is
the miner’s pneumoconiosis causes allegedly widespread cigarette smoking
aware of the documentation, (s)he is in
further deterioration of a totally among miners has effectively destroyed
no position to determine whether the
disabling (non-occupationally related) the basis for the presumptions. If any
opinion is ‘‘reasoned.’’ A physician
pulmonary or respiratory impairment. individual miner’s smoking is proven
provides a ‘‘reasoned’’ opinion by
Although the effect is cumulative or the sole cause of his or her disability,
explaining conclusions in light of
additive, the pneumoconiosis death or disease, the party opposing
factual premises which consist of
nevertheless further diminishes the entitlement has rebutted the
personal and occupational information
miner’s already-compromised lung presumption (except with respect to
about the miner and the results of
clinical tests and a physical function. The Department stresses that § 718.304, which is irrebuttable). The
examination, i.e., the ‘‘documentation.’’ this causation standard does not require presumption itself is not invalid if the
See generally Director, OWCP v. Rowe, an award of benefits simply because the presumed fact is disproved; rather, the
710 F.2d 251, 255 (6th Cir. 1983). If one miner has pneumoconiosis and the evidence simply establishes that the
or more of the premises is faulty or pneumoconiosis adversely affects his or presumed facts are not true in the
inconsistent with the conclusions her pulmonary condition. No award is particular case. Accordingly, the
reached by the physician, the permitted if there is not also present a Department rejects the commenter’s
adjudicator may find the opinion not totally disabling respiratory or view that the incidence of smoking
credible. Contrary to the commenter’s pulmonary impairment. In such a case, among miners necessarily causes
position, a physician’s reasoning cannot the miner is entitled to benefits because constitutional infirmities in the
be divorced from the underlying (s)he is totally disabled and regulatory presumptions.
documentation. As for defining the pneumoconiosis is a part of the overall
disabling condition. (j) One comment urges the
necessary documentation, § 718.104(a) Department to join the lawsuit filed by
sets forth the basic requirements for any (h) Three comments contend the Department of Justice to recover
report of physical examination obtained generally that the disability causation money from the tobacco industry for
in connection with a claim for black standard promotes awards for smoking- benefits approved by the Department
lung benefits, and subsection (b) induced disability. The Department has based on disability caused by cigarette
accommodates any additional testing previously considered, and rejected, the smoking. The comment is not directed
the physician may consider useful. same contention in the second notice of to any regulatory proposal, and no
(g) One comment challenges the proposed rulemaking. 64 FR 54980 (Oct. response is warranted.
Department’s authority to promulgate a 8, 1999). The BLBA, judicial precedent,
disability causation standard. The and the program regulations do not (k) One comment supports the
commenter also contends the permit an award based solely on ‘‘substantially contributing cause’’
Department cannot adopt a causation smoking-induced disability. Because the standard.
standard which permits a finding of commenters do not state any additional (l) No other comments have been
total disability due to pneumoconiosis if grounds for their contention, no further received concerning this section, and no
the miner’s pneumoconiosis worsens a response is necessary. changes have been made in it.
20 CFR 718.205 evidence establishing a detectable interpretation. Bradberry, 117 F.3d

(a) In the initial notice of proposed hastening of the miner’s death on 1361, 1366–67; Northern Coal Co. v.
rulemaking, the Department proposed account of pneumoconiosis. The party Director, OWCP, 100 F.3d 871, 874 (10th
codifying its position, unanimously opposing entitlement has ample Cir. 1996); Brown v. Rock Creek Mining
supported by circuit court precedent, opportunity in each survivor’s claim to Co., 996 F.2d 812, 816 (6th Cir. 1993);
that recognizes a causal relationship submit evidence proving Peabody Coal Co. v. Director, OWCP,
between a miner’s death and pneumoconiosis played no role in the 972 F.2d 178, 183 (7th Cir. 1992); Shuff
pneumoconiosis if the disease hastened miner’s death. v. Cedar Creek Coal Co., 967 F.2d 977,
the miner’s death. 62 FR 3345–46, 3378 (c) One comment argues that at least 980 (4th Cir. 1992), cert. den. 506 U.S.
(Jan. 22, 1997). The Department half of approved survivors’ claims are 1050 (1993); Lukosevicz v. Director,
based on deaths attributable to the OWCP, 888 F.3d 1001, 1006 (3d Cir.
responded to the comments received
adverse health effects of smoking. The 1989). Accordingly, the ‘‘hastening
when it issued the second notice of
commenter recommends reallocating death’’ standard is a permissible
proposed rulemaking. 64 FR 54980 (Oct.
the costs of these claims to the tobacco interpretation of § 718.205(c)(2), which
8, 1999). Several comments urged the
industry. The comment is not directed was promulgated after public notice and
Department to reinstate automatic
toward any regulatory proposal, and no comment in accordance with the APA.
entitlement for survivors of miners who
response is warranted. (e) Two comments contend the
were totally disabled by (d) Two comments generally assert
pneumoconiosis, but did not die from Department cannot apply § 718.205(c)(5)
the ‘‘hastening death’’ standard cannot
that disease (so-called ‘‘unrelated death to pending claims without violating a
be implemented by the Department
benefits’’); one comment concluded the prohibition on retroactive rulemaking.
because the regulation violates the
Department had effectuated that result (i) The Department previously
notice and comment provisions of the
by adopting the ‘‘hastening death’’ Administrative Procedure Act (APA), 5 addressed the retroactivity issue in the
standard in § 718.205(c)(5). The U.S.C. 551 et seq. The commenters do initial notice of proposed rulemaking.
Department rejected the first suggestion not indicate in what manner these APA 62 FR 3347–48 (Jan. 22, 1997). The
because the 1981 amendments to the requirements have been violated. Department acknowledged the Supreme
Black Lung Benefits Act (BLBA) allow Assuming the commenters are asserting Court’s holding in Bowen v. Georgetown
benefits in survivors’ claims filed after the Department improperly adopted the University Hospital, 488 U.S. 204, 208
January 1, 1982, only if the miner died ‘‘hastening death’’ standard in litigation (1988), which limits the retroactive
due to pneumoconiosis. Similarly, the rather than through rulemaking, the applicability of agency regulations
Department disagreed with the Department disagrees. The Department unless Congress has expressly
commenter’s interpretation of the promulgated 20 CFR 718.205 in 1983, authorized such regulations. Although
‘‘hastening death’’ standard, citing its after complying with the APA’s notice the Black Lung Benefits Act (BLBA)
universal acceptance by the six circuits and comment provisions, in response to does not contain the express statutory
with jurisdiction over 90 percent of the 1981 amendments to the BLBA. 48 authority required by Bowen, the
black lung claims litigation. The FR 24272 (May 31, 1983). Under those Department concluded many of the
Department also rejected a amendments, a deceased miner’s proposed regulations could nevertheless
recommendation that it make applicable survivor who filed a claim on or after apply to pending claims. These
to claims filed after January 1, 1982, a January 1, 1982, is eligible for benefits regulations, or revisions to regulations,
more lenient regulatory standard only if the miner’s death was due to principally clarify the Department’s
applicable to claims filed before 1982, pneumoconiosis. Based on the interpretation of the BLBA and the
since the standard was based on a legislative history of the 1981 current program regulations. Revised
statutory presumption (30 U.S.C. amendments, the Department provided regulations which could significantly
921(c)(2)) repealed by Congress in the that death will be considered ‘‘due to change the regulated community’s
1981 amendments. The Department did pneumoconiosis’’ where existing obligations and expectations,
not propose any further changes to pneumoconiosis was at least ‘‘a however, apply only prospectively to
§ 718.205 in the second notice of substantially contributing cause or claims filed after the effective date of
proposed rulemaking, although the factor.’’ 20 CFR 718.205(c)(2) (1999). In the final regulations. The Department
regulation remained open for further later litigation, the Department set forth reiterated this position in the second
comment. 64 FR 54971 (Oct. 8, 1999). its interpretation of the regulatory notice of proposed rulemaking. 64 FR
(b) One comment opposes the phrase ‘‘substantially contributing cause 54981–82 (Oct. 8, 1999). It rejected
‘‘hastening death’’ standard because it or factor,’’ and consistently maintained recommendations to make all of the
reinstates survivors’ ‘‘unrelated death that this standard is met by evidence revisions either fully retroactive or
benefits.’’ The commenter states broadly proving pneumoconiosis actually entirely prospective. The Department
that any lingering, non-traumatic, death hastened the miner’s death. The adhered to its earlier explanation in the
will be affected by every disease process ‘‘hastening death’’ standard gives initial notice of proposed rulemaking:
present in the individual. The practical meaning to the phrase some regulations could apply to
Department disagrees. The commenter ‘‘substantially contributing cause.’’ See pending claims because they codify
does not cite any medical support for its Bradberry v. Director, OWCP, 117 F.3d existing agency interpretations of the
position, and it does not respond to the 1361, 1365–66 (11 Cir. 1997) and cases BLBA and regulations, while other
Department’s explanation rejecting any cited therein. The Department is the regulations must be limited to
similarity between the ‘‘hastening administrator of the BLBA and, in that prospective application because they
death’’ standard and ‘‘unrelated death role, has the authority to interpret its involve significant changes to the
benefits’’ in the second notice of own regulations. Indeed, because the existing program which could disrupt
proposed rulemaking. 64 FR 54980 (Oct. Department’s interpretation is the parties’ interests. The Department
8, 1999). Moreover, the commenter’s reasonable and consistent with the therefore declined to adopt a single
premise overlooks the role of the claims regulatory language, every court of approach for all of the revisions.
adjudication process, which requires the appeals to have considered the question Finally, the Department rejected
claimant to submit credible medical has deferred to the Department’s arguments against retroactive
rulemaking premised on the Contract in Shuff). Section 718.205(c)(5) otherwise influence the course of a
Clause of the United States Constitution, therefore represents a clarifying miner’s death. Rulemaking Record (Ex.
art. I, § 10, cl. 1, and the impairment of regulation which the Department may 35), Transcript, Hearing on Proposed
contracts. 64 FR 54981–82 (Oct. 8, validly implement with retroactive Changes to the Black Lung Program
1999). (ii) The most recent comments do effect for claims pending on the date the Regulations (July 22, 1997), pp 47–48.
not cite any legal authority regulation becomes effective. (iii) Based At the same hearings, Dr. Robert Cohen,
contradicting the Department’s on the foregoing analysis, the Chief, Division of Pulmonary Medicine,
extensive analysis of the retroactivity Department also rejects one Cook County (IL) Hospital, generally
issues in the initial and second notices commenter’s position that the BLBA described the means by which
of proposed rulemaking. In any event, requires a ‘‘direct cause and effect impairment of lung function from
the Department’s analysis remains valid. relationship’’ between the miner’s pneumoconiosis could weaken the
An agency regulation does not run afoul pneumoconiosis and death in order for body’s defenses to infections and
of Bowen simply because it may operate a survivor to be entitled to benefits, at increase susceptibility to other disease
retroactively. ‘‘So long as a change in a least insofar as the commenter would processes. Rulemaking Record (Ex. 35),
regulation does not announce a new require that pneumoconiosis be the Transcript (July 23, 1997), pp 421–23.
rule, but rather merely clarifies or immediate, sole and proximate cause of Dr. Gregory J. Fino, board-certified in
codifies an existing policy, that the miner’s death. Pneumoconiosis may Internal Medicine and in the
regulation can apply retroactively. A be the direct, or proximate, cause of a subspecialty of Pulmonary Disease,
rule clarifying an unsettled or confusing miner’s death (§ 718.205(c)(1)), but (Rulemaking Record, Ex. 89–37,
area of the law ‘does not change the law, entitlement may also be premised on the Appendix C), notes several studies
but restates what the law according to lesser ‘‘hastening death’’ standard which have shown that complicated
the agency is and has always been’ (§ 718.205(c)(2), (5)). The circuit court pneumoconiosis is a cause of death,
* * * [.]’’ Orr v. Hawk, 156 F.3d 651, precedents cited above have while other studies provide less
654 (6th Cir. 1998), reh’g en banc den., unanimously upheld this interpretation. authoritative evidence that simple
172 F.3d 411 (6th Cir. 1999), quoting In both cases, a ‘‘direct’’ effect links the pneumoconiosis may be a cause of
Pope v. Shalala, 998 F.2d 473, 483 (7th pneumoconiosis to the miner’s death, death. This physician concludes that
Cir. 1993). See also First National Bank i.e., either as the leading, or pneumoconiosis may be implicated in a
of Chicago v. Standard Bank & Trust, contributing, cause of the miner’s death. miner’s death provided the death is
172 F.3d 472, 478 (7th Cir. 1999) (noting The Department’s interpretation reflects respiratory-related and the
Bowen’s ban on retroactivity is Congressional intent that benefits be pneumoconiosis has caused respiratory
inapplicable if rule is clarification rather awarded if the survivor establishes that dysfunction during the miner’s life.
than legislative change); compare pneumoconiosis was a contributing With respect to non-respiratory deaths,
National Mining Assoc. v. U.S. Dept. of cause of the miner’s death, although not Dr. Fino states that the medical
Interior, 177 F.3d 1, 8 (D.C. Cir. 1999) the sole and immediate cause. See 45 FR literature does not document any
(agency rule interpreting statute to 13690 (Feb. 29, 1980); 48 FR 24276–78 contributory relationship between death
impose liability for pre-rule acts gives (May 31, 1983). and pneumoconiosis. (ii) Scientific
retroactive effect which Bowen prohibits (f) The Department received written literature. One of the principal scientific
absent express statutory authority). As comments and expert hearing testimony documents cited by the Department in
the Department explained in both the from physicians on the role both the initial and second notices of
initial and second notices of proposed pneumoconiosis may play in a miner’s proposed rulemaking is the National
rulemaking, § 718.205(c)(5) simply death. (i) Expert Comments. Drs. Ben V. Institute of Occupational Safety and
codifies the Department’s longstanding Branscomb, Distinguished Professor Health’s (NIOSH) Criteria for a
interpretation of the legal standard for Emeritus, University of Alabama Recommended Standard, Occupational
proving a miner’s pneumoconiosis was (Birmingham), and William C. Bailey, Exposure to Respirable Coal Mine Dust
a ‘‘substantially contributing cause’’ of Professor of Medicine and Eminent (1995) (Criteria). 62 FR 3343 (Jan. 22,
his or her death under the BLBA and Scholar, Chair in Pulmonary Disease, 1997); 64 FR 54978–79 (Oct. 8, 1999);
part 718 regulations. 62 FR 3345–46 University of Alabama (Birmingham), Rulemaking Record, Exhibit 2–1. NIOSH
(Jan. 22, 1997); 64 FR 54980 (Oct. 8, (Rulemaking Record Ex. 5–174, cited studies from the United States and
1999). Six circuit courts have adopted Appendix 8), comment that the medical the United Kingdom which documented
this interpretation while no court has literature does not substantiate any increases in mortality among miners
disagreed. Bradberry v. Director, OWCP, hastening effect of simple from lung diseases related to respirable
117 F.3d 1361, 1365–66 (11th Cir. 1997); pneumoconiosis on the timing of a dust. Criteria, § 4.2.5.1, Rulemaking
Northern Coal Co. v. Director, OWCP, miner’s death. They do acknowledge Record, Exhibit 2–1 at 63–64, citing
100 F.3d 871, 874 (10th Cir. 1996); that severe complicated Miller BG, Jacobsen M, ‘‘Dust exposure,
Brown v. Rock Creek Mining Co., 996 pneumoconiosis could have an additive pneumoconiosis, and mortality of coal
F.2d 812, 816 (6th Cir. 1993); Peabody effect in some instances, but only by miners,’’ Br J Ind Med 42:723–733
Coal Co. v. Director, OWCP, 972 F.2d reducing the miner’s lifespan (1985), and Keumpel ED, et al., ‘‘An
178, 183 (7th Cir. 1992); Shuff v. Cedar marginally. The physicians conclude exposure-response analysis of mortality
Creek Coal Co., 967 F.2d 977, 980 (4th that pneumoconiosis usually does not among U.S. miners,’’ Am J Ind Med
Cir. 1992), cert. den. 506 U.S. 1050 affect a miner’s death from non-lung 28(2):167–184 (1995). Miller and
(1993); Lukosevicz v. Director, OWCP, disease conditions, nor does mild or Jacobson noted ‘‘significant’’ increases
888 F.2d 1001, 1006 (3d Cir. 1989); but moderate stable pulmonary in mortality among U.K. miners with
see Tackett v. Armco, Inc., 16 Black insufficiency affect other diseases radiographic evidence of progressive
Lung Rep. 1–88, 1–93 (1992), vacated on leading to death. At the Department’s massive fibrosis, and ‘‘slightly
remand 17 Black Lung Rep. 1–103, 1– Washington, D.C., public hearing, Dr. decreased’’ survival rates among miners
104 (1993) (rejecting ‘‘hastening death’’ Branscomb also observed that simple with radiographic evidence of simple
standard, but vacating opinion on pneumoconiosis has no effect on the pneumoconiosis compared to miners
remand in light of controlling decision common causes of death, and does not without pneumoconiosis. Kuempel et
al. found increases in pneumoconiosis standard into the regulation, the Cir. 1989); Wetherill v. Director, OWCP,
mortality among U.S. miners with Department is clarifying the applicable 812 F.2d 376, 382 (7th Cir. 1987).
progressive massive fibrosis, simple statutory standard: a survivor is entitled Similarly, regarding the connection
pneumoconiosis and exposure to dust of to benefits if the miner’s death was due between simple pneumoconiosis and
higher-rank coals. Based on these to pneumoconiosis. This standard, in non-respiratory deaths in particular, the
studies, NIOSH concluded: ‘‘[M]iners the Department’s view as well as in the comments from Drs. Bailey and
with working lifetime exposures to unanimous view of the circuit courts of Branscomb, along with those of Dr.
respirable coal mine dust at a mean appeals that have considered it, accords Fino, focus on clinical pneumoconiosis
concentration of 2 mg/m3 have an with Congress’ intent to compensate as opposed to pneumoconiosis as more
increased risk of dying from survivors of miners whose deaths were broadly defined by the statute; thus,
pneumoconiosis, chronic bronchitis, or in some way related to pneumoconiosis, they do not address whether, for
emphysema.’’ Criteria, § 4.2.5.1, as that term is broadly defined by the instance, chronic obstructive pulmonary
Rulemaking Record, Exhibit 2–1 at 64. statute. The Department emphasizes, disease induced by coal mine dust
In the second notice of proposed however, that the survivor must exposure can, in certain circumstances,
rulemaking, the Department referenced establish that the miner’s death was contribute to a non-respiratory death.
another study which NIOSH had cited hastened by pneumoconiosis in each Moreover, while Drs. Bailey and
to the Department, Coggon D, et al., case. The Rulemaking Record, including Branscomb indicate that a causal nexus
‘‘Coal mining and chronic obstructive the variety of expert medical comments, between pneumoconiosis and a non-
pulmonary disease: a review of the studies and opinions on the potential respiratory death would be unusual,
evidence,’’ Thorax 53:398–407 (1998); contributory role of pneumoconiosis in they do not rule it out as a medical
see also 64 FR 54979 (Oct. 8. 1999). The the deaths of coal miners, does not possibility. Dr. Cohen explained how
authors reviewed studies on mortality in demonstrate the necessity to depart such a cause and effect relationship
coal miners and reported that mortality from the hastening death legal standard. could occur. Even though non-
attributed to chronic obstructive These views appear relatively consistent respiratory deaths hastened by
pulmonary disease was higher in miners in stating that complicated pneumoconiosis may occur relatively
than the general population. Among the pneumoconiosis (also called progressive infrequently, the survivor should
studies submitted by one commenter is massive fibrosis) may contribute to a nevertheless be given the opportunity to
Green FHY, Vallyathan V, ‘‘Coal miner’s death given the severity of the prove that pneumoconiosis had a
Workers’ Pneumoconiosis and disease. While opinions differ as to the tangible impact on the miner’s death in
Pneumoconiosis Due to Other possibility that simple pneumoconiosis those instances. Thus, the Department
Carbonaceous Dusts,’’ in Chung A, can adversely affect the mortality believes the ‘‘hastening death’’ standard
Green FHY, eds., Pathology of process, the Department is persuaded by sets a reasonable benchmark for
Occupational Lung Disease (2d ed. NIOSH’s conclusion that the mortality proving, in any particular case, that
1998) 129; see also Rulemaking Record, studies it reviewed substantiate an pneumoconiosis contributed to the
Exhibit 89–21, attachment 2. Green and increased risk of death from respiratory miner’s death. Of course, the burden of
Vallyathan state that ‘‘[a]pproximately diseases which may be encompassed persuasion remains with the survivor to
4% of coal miner deaths are directly within the BLBA’s definition of prove that the miner’s death was due to
attributable to pneumoconiosis,’’ but ‘‘pneumoconiosis.’’ NIOSH is the pneumoconiosis.
note that the ‘‘excess mortality rate from government agency charged with (g) One comment supports the
pneumoconiosis’’ is primarily conducting research into ‘‘hastening death’’ standard.
attributable to progressive massive occupationally-related health problems. (h) No other comments have been
fibrosis. (p. 137). The authors further In that capacity, the Department has received concerning this section, and no
note, however, that ‘‘[d]eath from previously consulted with NIOSH changes have been made in it.
pneumoconiosis, chronic bronchitis, concerning issues related to the
and emphysema has been related to proposed definition of pneumoconiosis Subpart D
cumulative dust exposure,’’ citing in § 718.201. 64 FR 54978–79 (Oct. 8, 20 CFR 718.301
Miller and Jacobson, and Kuempel et al. 1999); see also 30 U.S.C. 902(f)(1)(D)
In contrast, Parker and Banks conclude, (Department to consult with NIOSH on (a) In the initial notice of proposed
‘‘a series of mortality reports have not criteria for tests which establish total rulemaking, the Department proposed
convincingly shown that simple [coal disability in miners). The Department deleting 20 CFR 718.301(b) (1999),
workers’ pneumoconiosis] is associated therefore considers NIOSH’s view which defined ‘‘year’’ for purposes of
with premature mortality, but that particularly significant in evaluating the calculating the length of a miner’s coal
[progressive massive fibrosis] adversely conflicting medical opinions concerning mine employment. 62 FR 3346 (Jan. 22,
affects survival * * *.’’ Parker, Banks, the ‘‘hastening death’’ standard, 1997). The Department proposed
‘‘Lung diseases in coal workers,’’ especially since its views are consistent replacing subsection (b) and a separate
Occupational Lung Disease (1998); see with other studies submitted into the provision in 20 CFR 725.493(b) (1999)
also Rulemaking Record, Exhibit 89–21, record. To the extent the commenters (defining ‘‘year’’ of coal mine
attachment 3. Parker and Banks also cite express the view that simple employment for identifying responsible
the results of the study by Kuempel et pneumoconiosis can never cause death, operator) with a single definition of
al. See also Morgan WKC, ‘‘Dust, such views are inconsistent with the ‘‘year’’ in § 725.101(a)(32). The
Disability, and Death,’’ Am Rev Resp BLBA. The statute contemplates an Department concluded that a single
Dis 134:639, 641 (1986); Rulemaking award of benefits based upon proof of definition with general applicability
Record, Exhibit 89–21, attachment 8 pneumoconiosis as defined in the was appropriate since the calculation of
(concluding more emphasis should be statute (which encompasses simple the length of a miner’s employment is
placed on reducing cigarette smoking pneumoconiosis), and not just upon the same inquiry under both §§ 718.301
among miners than dust levels in mines proof of complicated pneumoconiosis. and 725.493(b). The Department
to reduce mortality). (iii) By See, e.g., Penn Allegheny Coal Co. v. proposed no additional changes to this
incorporating the ‘‘hastening death’’ Mercatell, 878 F.2d 106, 109–110 (3d regulation in the second notice of
proposed rulemaking. 64 FR 54971 (Oct. (b) No comments were received FEV1 results vary by no more than 5
8, 1999). concerning this section. It has therefore percent or 100 ml to be overly
(b) No comments were received been removed. restrictive, and suggested either
concerning this section, and no other eliminating the requirement or
20 CFR 718.403
changes have been made in it. liberalizing it to allow a variability limit
(a) The Department proposed deleting of 10 percent or 200 ml. The Department
20 CFR 718.307 20 CFR 718.403 (1999) in the initial was reluctant to eliminate the variation
notice of proposed rulemaking and standard completely because it provided
(a) In the initial notice of proposed placing its provisions in part 725 as
rulemaking, the Department proposed a baseline for ensuring the validity of
proposed § 725.103. Section 718.403 the test. The Department acknowledged,
moving the content of § 718.307(a) to dealt with a party’s burden of proof, and
§ 725.103 to establish a regulation of however, that some individuals might
part 725 did not contain a comparable be unable to provide pulmonary
general applicability concerning provision of program-wide applicability.
burdens of proof. 62 FR 3346 (Jan. 22, function results within the 5 percent
62 FR 3346 (Jan. 22, 1997). The variance standard. The Department
1997). The Department also proposed Department proposed no additional
deleting § 718.307(b) because it therefore invited comment on
changes to this regulation in the second alternative criteria which would
duplicated proposed § 725.103. The notice of proposed rulemaking. 64 FR
Department did not discuss § 718.307 in guarantee reproducibility of the FEV1
54971 (Oct. 8, 1999). and FVC values while permitting
its second notice of proposed (b) No comments were received
rulemaking, although the regulation consideration of valid FEV1 results
concerning this section. It has therefore exceeding the 5 percent standard. Other
remained open for public comment. 64 been removed.
FR 54971 (Oct. 8, 1999). comments criticized the disability table
20 CFR 718.404 values as too stringent. The Department
(b) No comments were received declined to consider any changes to the
concerning this section. It has therefore (a) The Department proposed deleting
tables because it did not propose
been removed. 20 CFR 718.404 (1999) in the initial
revising them in the initial notice of
notice of proposed rulemaking and
20 CFR 718.401 proposed rulemaking, and the
placing its provisions in part 725 as
commenters did not provide medical
(a) The Department proposed deleting proposed § 725.203(c) and (d). Former
support for any revisions.
20 CFR 718.401 (1999) in the initial § 718.404(a) addressed a miner’s
obligation to inform the Department if (b) Three comments oppose limiting
notice of proposed rulemaking because the acceptable variation between the
the provision duplicated material in (s)he returns to coal mine employment;
subsection (b) recognized the two largest FEV1’s of the three
proposed §§ 725.405 and 725.406. acceptable tracings to 5 percent of the
Former § 718.401 addressed each Department’s authority to reopen a
miner’s final award during his or her largest FEV1 or 100 ml, whichever is
miner’s statutory right to a complete greater. See Appendix B(2)(ii)(G), of part
pulmonary evaluation at no expense to lifetime and develop additional
evidence if any issue arises concerning 718. One comment urges the
the miner, a right outlined in proposed Department to raise the acceptable
§ 725.406. See 30 U.S.C. 923(b). Former the continuing validity of the award. 62
FR 3346 (Jan. 22, 1997). The Department percentage of variability from 5 percent
§ 718.401 also addressed the to 10 percent. A second comment states
development of additional medical proposed no additional changes to this
regulation in the second notice of the 5 percent variation is too specific.
evidence necessary for the adjudication This commenter recommends the
of a claim, subject matter that has been proposed rulemaking. 64 FR 54971 (Oct.
8, 1999). physician reporting the study be
relocated to proposed § 725.405. Since allowed to use his judgment as to
both proposed § 725.405 and § 725.406 (b) No comments were received
concerning this section. It has therefore whether the test is acceptable. The third
are regulations with program-wide comment, submitted by the National
applicability, the Department noted that been removed.
Institute of Occupational Safety and
no comparable regulation was necessary Appendix B to Part 718 Health (NIOSH), does not identify a
in part 718. 62 FR 3346 (Jan. 22, 1997). (a) In the initial notice of proposed specific percentage of increased
The Department proposed no additional rulemaking, the Department proposed acceptable variability, but recommends
changes to this regulation in the second eliminating the option of taking an the Department include a provision
notice of proposed rulemaking. 64 FR initial inspiration from the open air permitting consideration of pulmonary
54971 (Oct. 8, 1999). before commencing the pulmonary function studies which exceed the 5
(b) No comments were received function maneuver. 62 FR 3346 (Jan. 22, percent limit provided the failure of the
concerning this section. It has therefore 1997). The Department noted that open- test to comply with the standard is
been removed. air inspiration could not be recorded on noted in the report. The Department
20 CFR 718.402 the spirogram, which precluded any agrees with the suggested revision
confirmation by a reviewing physician recommended by NIOSH, and has
(a) The Department proposed deleting that the miner had taken a full breath. amended Appendix B(2)(ii)(G) to adopt
20 CFR 718.402 (1999) in the initial Thus, the test could yield spurious that suggestion with one addition. The
notice of proposed rulemaking because abnormal values. In the second notice of Department has added the phrase ‘‘by
its content duplicated provisions of proposed rulemaking, the Department the physician conducting or reviewing
proposed § 725.414, which addressed a proposed Appendix changes to the test.’’ This language will ensure that
claimant’s unreasonable refusal to implement a requirement that a physician certifies the results of the
cooperate in the medical development physicians use the flow-volume loop in pulmonary function test while
of his claim. 62 FR 3346 (Jan. 22, 1997). reporting pulmonary function test recognizing that it does not meet the 5
The Department proposed no additional results. 64 FR 54981 (Oct. 8, 1999). The percent variability requirement. The
changes to this regulation in the second Department also responded to numerous amended language will provide the
notice of proposed rulemaking. 64 FR comments. Some comments considered adjudicator with greater flexibility in
54971 (Oct. 8, 1999). the requirement that the two highest determining whether the pulmonary
function study actually substantiates the 20 CFR Part 722—Criteria for about whether to amend their workers’
presence of a significant pulmonary Determining Whether State Workers’ compensation laws in an attempt to
impairment, despite the lack of Compensation Laws Provide Adequate provide the ‘‘adequate coverage for
reproducible spirometric curves within Coverage for Pneumoconiosis and pneumoconiosis’’ the federal statute
the 5 percent range. Listing of Approved State Laws requires. In addition, the commenter
(c) One comment recommends the suggests that the Department establish a
20 CFR Part 722
Department revise the disability tables formal, ongoing review of state workers’
and adopt the more liberal pulmonary (a) In its initial notice of proposed compensation laws to determine
function disability criteria used by the rulemaking, the Department proposed whether or not they provide adequate
Department of Justice for the Radiation removing many of the regulations in 20 coverage.
Exposure Compensation Program. CFR Part 722 because they were Although no state has applied for
Although the Department received obsolete. 62 FR 3346–47 (Jan. 22, 1997). certification in the 27 years that the
comments criticizing the table values as Since 1973, Part 722 has set forth a Department has administered the
too stringent in response to its initial procedure under which any state may program, the Department accepts the
notice of proposed rulemaking, the request that the Secretary certify that its commenter’s suggestion that the
Department did not propose any workers’ compensation laws provide publication of specific criteria would be
revisions to the tables in the second ‘‘adequate coverage’’ for occupational helpful to state legislators who wish to
notice of proposed rulemaking, in part, pneumoconiosis. Such a certification amend their state’s laws in order to
because the commenters failed to would prevent any claim for benefits obtain Secretarial certification and
provide any medical support for their arising in that state from being thereby preclude the application of
adjudicated under the Black Lung federal law to their state’s coal mine
recommendation that the tables be
Benefits Act. 30 U.S.C. 931. In addition, operators. Publication of a current set of
modified. 64 FR 54981, 55009 (Oct. 8,
Part 722 has provided a set of specific criteria, however, will require
1999). The Department does not
criteria that states were required to meet considerable study and additional
consider the present comment to
in order to obtain the requested drafting, and would needlessly delay
provide a sufficient basis for revision of
certification. Because the Part 722 final promulgation of the remaining
these disability criteria. It constitutes
regulations had not been amended since regulations in the Department’s
the only comment the Department has
1973 although the statute had been proposal. Following completion of that
received which included medical
amended in both 1978 and 1981, the work, the Department will issue a new
evidence suggesting alternate table
Department proposed replacing the notice of proposed rulemaking in order
values. Thus, the Department cannot specific Part 722 criteria with a general
determine whether the proffered to ensure that interested parties have an
statement of the statutory criteria for opportunity to comment upon possible
evidence represents a consensus within certification and the statement that in
the medical community about disability Secretarial certification criteria. The
the future, the Department would Department believes that in the interim
as measured by pulmonary function review the workers’ compensation laws
studies. The Department does not have the revised Part 722 will accommodate
of any state that applies for certification any state seeking certification.
an adequate record upon which to in light of the then-current statutory The Department does not believe,
formulate a judgment about the validity requirements. The Department stated however, that it would be productive to
of the current tables or the proposed that it would certify adequate coverage engage in a formal, ongoing review of
changes. No change in the Appendix B only if state law guaranteed at least the each state’s laws in order to determine
table values is made. same compensation, to the same whether they provide adequate coverage
(d) No other comments have been individuals, as is provided by the Act. for occupational pneumoconiosis. States
received concerning this section, and no The Department did not address Part that revise their workers’ compensation
other changes have been made in it. 722 in its second notice of proposed laws to meet the Department’s criteria
Appendix C to Part 718 rulemaking. See list of Changes in the will do so in order to preempt the
Department’s Second Proposal, 64 FR application of the Black Lung Benefits
(a) The Department proposed 54971 (Oct. 8, 1999). Act. Those states will have a clear
amending Appendix C in the initial (b) The Department has replaced a incentive to submit an application to the
notice of proposed rulemaking to state comma in the second sentence of Department for the appropriate
that arterial blood gas studies should § 722.3(a) with a semicolon to correct certification. Relying on states to initiate
not be administered to a miner during, the punctuation of that sentence. In the certification process thus makes the
or soon after, an acute respiratory addition, the Department has added the most efficient use of government
illness. 62 FR 3346, 3381 (Jan. 22, 1997). word ‘‘relevant’’ to qualify the phrase resources at both the state and federal
In the preamble to § 718.105 in the ‘‘administrative or court decision’’ in levels.
second notice of proposed rulemaking, the same sentence. This revision (d) The Department has not received
the Department stated that one comment clarifies the Department’s intent that any specific comments relevant to the
had noted the correct nomenclature for states submit only relevant individual regulations in Part 722, and
partial pressure of oxygen and carbon administrative or court decisions. no changes have been made in them.
dioxide is an upper-case ‘‘P,’’ not the (c) One comment, in the context of
lower-case ‘‘p’’ then in use. The setting forth alternatives for the 20 CFR Part 725—Claims for Benefits
Department changed the references in Department to consider under the Under Part C of Title IV of the Federal
§ 718.105(c)(6) in the second proposal, Regulatory Flexibility Act, urges the Mine Safety and Health Act, As
but neglected to change the Appendix C Department to establish specific criteria Amended
table headings. Those changes have now the Department will use to determine Subpart A
been made. 64 FR 54971, 54977, 55012, when a state black lung program
55017–18 (Oct. 8, 1999). provides adequate coverage for 20 CFR 725.1
(b) No other comments were received pneumoconiosis. This revision, the (a) In its first notice of proposed
concerning Appendix C, and no further commenter suggests, would allow state rulemaking, the Department proposed
changes have been made in it. legislatures to make reasoned decisions adding subsection (k) to § 725.1 to
describe the incorporation into the Department may resolve conflicts which § 725.351, to the list of revised
Black Lung Benefits Act of a number of arise from the incorporation of regulations which would apply only
provisions of the Social Security Act. In inconsistent provisions of the two prospectively. 64 FR 54981–82 (Oct. 8,
addition, the new subsection noted the statutes. Thus, for example, the 1999). In addition, the Department
Department’s authority to vary the Department may choose to depart from answered several comments, reiterating
application of the incorporated an incorporated LHWCA provision its belief that it lacked the statutory
provisions. 62 FR 3347 (Jan. 22, 1997). (subsection (j)) because it has authority to make the final rule
The Department did not discuss section determined that a comparable but applicable, in its entirety, to all pending
725.1 in its second notice of proposed inconsistent SSA provision, which is claims and rejecting the argument that
rulemaking, see list of Changes in the also incorporated, better serves the the Department lacked the authority to
Department’s Second Proposal, 64 FR interests of the program. apply any of the regulations to pending
54971 (Oct. 8, 1999). The Department acknowledges that, claims.
(b) One comment submitted in as originally proposed, subsection (k) (b) One of the comments received in
connection with the Department’s first did not contain any reference to the SSA connection with section 725.367
notice of proposed rulemaking and excess earnings offset, 42 U.S.C. 403(b)– contends that the Department’s
renewed in connection with the (1), incorporated into section 422(g). regulation governing the payment of
Department second notice of proposed The Department’s original explanation attorneys’ fees by responsible operators
rulemaking criticizes subsections (j) and of subsection (k), 62 FR 3385 (Jan. 22, should not be applied retroactively. The
1997), also inadvertently omitted Department agrees; section 725.367 was
(k) as confusing and inconsistent. The
specific mention of section 422(g). inadvertently omitted from the list of
comment states that the subsections are
Section 430 gives the Department the revised regulations in the Department’s
confusing because they do not identify
authority to determine the extent to second notice of proposed rulemaking
the individual instances in which the
which application of incorporated SSA that should apply only to claims filed
Department has altered the incorporated
provisions into Part B of the Act is after the effective date of these
provisions of the Longshore and Harbor
appropriate in the context of revisions. As revised, the regulation
Workers’ Compensation Act (LHWCA)
adjudicating claims under Part C. significantly alters the attorneys’ fees
and the Social Security Act (SSA). The
Section 422(g), however, provides no that are payable by the responsible coal
comment also argues that the two
similar authority. It is located in Part C mine operator. See 64 FR 54987 (Oct. 8,
subsections are inconsistent because of the Act, and the Department applies 1999) (discussing the Fourth Circuit’s
subsection (j) limits the instances in the incorporated SSA offset provision as decision in Clinchfield Coal Co. v.
which the BLBA departs from the if it were a part of the BLBA. See 20 CFR Harris, 149 F.3d 407 (4th Cir. 1998)). In
LHWCA, while subsection (k) implies 725.536 (1999). The Department has addition, because section 725.367 may
other departures may be contemplated. added an additional sentence to the end increase the amount of attorneys’ fees an
With respect to the first criticism, the of subsection (k) to describe this operator has to pay in a contested case,
Department believes that specific incorporation. In addition, the it may influence the operator’s decision
enumeration of the departures from Department has revised the first to controvert the claimant’s entitlement
incorporated LHWCA provisions is sentence of subsection (k) to recognize to benefits. In these circumstances, the
unnecessary. The objective of that section 402 of the BLBA is Department agrees that the revised
subsection (j) is simply to acknowledge contained in Part A. The Department version of § 725.367 should not be
that certain LHWCA provisions are has also revised the fourth and seventh applied to claims filed before the
incorporated into the Black Lung sentences of subsection (k) to clarify effective date of the Department’s
Benefits Act (BLBA) and that the BLBA their meaning. rulemaking. The Department also
confers specific authority on the (c) No other comments were received inadvertently omitted §§ 725.409, which
Department to promulgate regulations concerning this section, and no other governs denials of a claim by reason of
which vary the terms of these changes have been made in it. abandonment, 725.416, which governs
incorporated provisions. See 30 U.S.C. informal conference proceedings, and
§ 932(a). Subsection (k) fulfills the same 20 CFR 725.2
725.458, which governs deposition
objective by acknowledging that there (a) In its first notice of proposed testimony, from the list of revised
are also SSA provisions incorporated rulemaking, the Department proposed regulations that should be applied
into the BLBA. Most of those provisions revising section 725.2 in order to prospectively only.
were incorporated into Part B of the distinguish between revisions that Similarly, section 725.465 was not
BLBA, governing the adjudication of would affect pending claims and open for comment in the Department’s
claims filed with the Social Security revisions that would be applied first notice of proposed rulemaking, 62
Administration prior to July 1, 1973, prospectively only, i.e., only to claims FR 3340–41 (Jan. 22, 1997). The
when Congress amended the BLBA in filed after the effective date of the Department proposed revising § 725.465
1972 and 1977. See, e.g., 30 U.S.C. revised regulations. The Department in its second notice of proposed
922(a)(5)(1)(B), incorporating the SSA drew a distinction between revisions rulemaking, 64 FR 54971, 54997 (Oct. 8,
definition of the term ‘‘disability.’’ that merely clarified the Department’s 1999), and has revised the regulation
These provisions are also incorporated interpretation of the statute and existing again in the final rule. As revised,
into Part C, governing the adjudication regulations or were procedural § 725.465 prohibits the dismissal of the
of claims filed with the Labor regulations, and those that altered the responsible operator finally designated
Department, by 30 U.S.C. 940, but only obligations and expectations of the by the district director from the
‘‘to the extent appropriate.’’ Subsection parties or could not easily be applied to adjudication of claims without the
(k) recognizes the Department’s pending claims. 62 FR 3347–48 (Jan. 22, consent of the Director. The revision is
authority to determine the extent to 1997). The Department also explained an integral part of the new rules
which the use of these incorporated the legal basis for its decision to apply governing the identification,
provisions is appropriate. Furthermore, certain regulations retroactively. In its notification, and adjudication of which
subsection (k) is consistent with second notice of proposed rulemaking, of the miner’s former employers, if any,
subsection (j) because it notes that the the Department added a regulation, should be held liable for the payment of
his benefits (§§ 725.407–725.408, respect to rules that clarify the BRB or the courts. When such open
725.415, 725.418, 725.491–725.495). Department’s interpretation of former questions are answered, the law has
The Department has also revised regulations, the Department quoted been declared, not changed.’’). Any
§ 725.421(b), which governs the referral Pope v. Shalala, 998F.2d 473 (7th Cir. party to litigation must assume the risk
of a claim to the Office of 1993), overruled on other grounds, that a law or regulation will be
Administrative Law Judges and the Johnson v. Apfel, 189 F.3d 561, 563 (7th interpreted in a manner other than that
evidence to be transmitted to that Office Cir. 1999), for the proposition that an which it had hoped. The Department’s
for admission into the record at the agency’s rules of clarification, in embodiment of those decisions in
hearing. The revisions to § 725.421(b) contrast to its rules of substantive law, regulatory form should not insulate the
reflect the new rules governing the may be given retroactive effect. The parties from their application to
identification, notification and Sixth Circuit issued a similar holding in pending claims.
adjudication of the responsible operator. Orr v. Hawk, 156 F.3d 651, 654 (1994). Similarly, the regulations in Part 725
Because the revisions of those rules are Underlying both the Pope and Orr that the Department intends to apply to
prospective only, the revised version of decisions is the Supreme Court’s pending claims represent clarifications
sections 725.421(b) and 725.465 should opinion in Manhattan General of unsettled or confusing areas of the
be treated similarly. The Department Equipment Co. v. Commissioner, 297 law. In particular, one commenter has
has amended subsection (c) to add U.S. 129 (1936). Both the Sixth and objected to the application of
§§ 725.367, 725.409, 725.416, Seventh Circuits quote Manhattan §§ 725.502, 725.537, and 726.8 to
725.421(b), 725.458, and 725.465 to the General for the proposition that a rule pending claims. Section 725.502
list of regulations which may be applied clarifying an unsettled or confusing area provides parties to a claim with
only prospectively. of law ‘‘is no more retroactive in its knowledge of when each benefit
(c) A number of comments continue operation than is a judicial payment is due. In the first notice of
to insist that the Department’s determination construing and applying proposed rulemaking, the Department
regulations are impermissibly a statute to a case in hand.’’ 297 U.S. at observed that the revisions are
retroactive, and that the Department’s 135, quoted at 998 F.2d at 483; 156 F.3d consistent with the Department’s
proposal violates the Supreme Court’s at 653. Both courts thus recognized that current practice, and with appellate
decisions in Bowen v. Georgetown the Supreme Court’s decision in Bowen, decisions interpreting section 21(a) of
University Hospital, 488 U.S. 204 (1988) which was issued in 1988, did not the Longshore and Harbor Workers’
and Eastern Enterprises v. Apfel, 524 overrule its 1936 decision in Manhattan Compensation Act, 33 U.S.C. 921(a), as
U.S. 498 (1998). In Bowen, the Supreme General with respect to what constitutes
incorporated into the Black Lung
Court held that, absent an explicit a retroactive rule. See First National
Benefits Act by 30 U.S.C. 932(a). 62 FR
statutory grant of authority, Bank of Chicago v. Standard Bank &
3365 (Jan. 22, 1997). Section 725.537
administrative agencies could not Trust, 172 F.3d 472, 478 (7th Cir. 1999)
codifies the Department’s position,
promulgate retroactive rules. In its first (stating that if the regulation at issue
upheld in litigation, with respect to the
notice of proposed rulemaking, the ‘‘was merely a clarification, rather than
payment of benefits in cases in which
Department acknowledged that the a legislative change, Bowen’s ban on
the miner is survived by more than one
Black Lung Benefits Act did not give the retroactivity is inapplicable’’).
The Department’s rulemaking surviving spouse. The revision ensures
Department authority to promulgate
includes a number of such the proper implementation of 42 U.S.C.
regulations with a retroactive effect. 62
FR 3347 (Jan. 22, 1997). Eastern clarifications. For example, the revised 416(d)(1) and (h)(1), Social Security Act
Enterprises did not involve the versions of §§ 718.201 (definition of provisions that are incorporated into the
regulatory authority of administrative pneumoconiosis), 718.204 (criteria for Black Lung Benefits Act by 30 U.S.C.
agencies; in that case, a majority of the establishing total disability due to 902(a)(2). As Pope and Orr recognize,
Court held the Congress had violated pneumoconiosis) and 718.205 (criteria Bowen does not prohibit the Department
the due process clause of the Fifth for establishing death due to from promulgating regulations to codify
Amendment to the Constitution by pneumoconiosis) each represent a its position with respect to these issues.
improperly imposing retroactive consensus of the federal courts of Finally, the Department has responded
burdens on coal mine operators in appeals that have considered how to to the contention that retroactive
enacting certain provisions of the Coal interpret former regulations. See liability is imposed by § 726.8 in the
Industry Retiree Health Benefit Act. For preamble to §§ 718.201 (citing cases preamble to § 726.8.
purposes of analyzing the Department’s recognizing an obstructive component The same commenter has also argued
regulations, Bowen is the more to pneumoconiosis); 725.309 (citing that §§ 725.542–.544, 725.547, and
restrictive decision. Because Congress cases recognizing the progressive nature 725.548 should not be retroactively
did not grant the Department specific of pneumoconiosis); 718.204; and applied to coal mine operators. Section
authority to engage in retroactive 718.205. Moreover, none of the 725.2, however, explicitly makes
rulemaking under the Black Lung appellate decisions with respect to these § 725.547 applicable to newly filed
Benefits Act, the regulations will be regulations represents a change from claims only. Sections 725.542 through
permissible under Bowen only if they do prior administrative practice. Thus, a 725.544 are applicable to operators only
not have a true retroactive effect. party litigating a case in which the court by operation of section 725.547; they are
Eastern Enterprises, a case in which the applied such an interpretation would therefore also applicable only to claims
retroactive effect of the legislation was not be entitled to have the case filed after the effective date of these
clear, is inapposite to this analysis. remanded to allow that party an regulations. Finally, § 725.548
The Department addressed the opportunity to develop additional represents a renaming and renumbering
retroactivity issue in its earlier notices evidence. See Betty B Coal Co. v. of a part of the former regulation at
of proposed rulemaking, 62 FR 3347–48 Director, OWCP, 194 F.3d 491, 501 (4th § 725.547. 64 FR 55003 (Oct. 8, 1999).
(Jan. 22, 1997) and 64 FR 54981–82 Cir. 1999) (‘‘* * * we are reluctant to The Department does not believe that its
(Oct. 8, 1999). The Department observed compel reopening as a matter of decision to rename and renumber a
that the issue of what constitutes a constitutional law any time debatable previous regulation should be
retroactive effect is complex. With questions of law are resolved by the considered in any way retroactive.
By contrast, where the revision the time the new application is filed. 20 CFR 725.4
represents a clear change in the For example, a miner whose 1977 claim (a) In its first notice of proposed
Department’s interpretation, such as the was adjudicated and denied under the rulemaking, the Department proposed
regulation governing the payment of interim presumption, 20 CFR § 727.203 revising subsection (d) to reflect the
attorneys’ fees by responsible operators, (1999), is not entitled to have a 1987 Department’s decision to discontinue
see 64 FR 54987 (Oct. 8, 1999) claim adjudicated under the same publication of the Part 727 regulations
(discussing the Fourth Circuit’s decision criteria. Instead, that claim must be in the Code of Federal Regulations. 62
in Clinchfield Coal Co. v. Harris, 149 adjudicated under the more restrictive FR 3348 (Jan. 22, 1997). Subsection (d)
F.3d 407 (4th Cir. 1998)), the Part 718 criteria. See Peabody Coal Co. therefore referred parties interested in
Department has made the change v. Spese, 117 F.3d 1001, 1007 (7th Cir. reviewing the Part 727 regulations to the
prospective only. Similarly, the revised 1997). The Department does not believe Federal Register or the most recent
procedures governing the processing that it should alter its consistent version of the Code of Federal
and adjudication of claims, sections treatment of subsequent claims in order Regulations containing the rules. The
725.351, 725.406 through 725.418, to exclude those claims from Department did not discuss § 725.4 in
725.423, 725.454 through 725.459, and consideration under the Department’s its second notice of proposed
725.465, the regulations governing the revised regulations. rulemaking. See list of Changes in the
identity of the responsible operator (d) One commenter urges the Department’s Second Proposal, 64 FR
liable for the payment of benefits, Department to alter its definition of a 54971 (Oct. 8, 1999).
sections 725.491 through 725.495, and ‘‘pending’’ claim, which allows a claim (b) Three comments urge the
the revised regulation governing to be considered ‘‘pending’’ for up to Department to continue publishing the
operator overpayments, section 725.547, one year after it is denied. The Part 727 regulations because some
are expressly limited in their commenter suggests that the definition claims governed by those regulations are
applicability to newly filed claims. In violates the jurisdictional rules still in litigation. It remains the
addition, the revisions of sections governing finality set forth in 33 U.S.C. Department’s position, however, that
725.309 and 725.310, governing § 921. The Department does not agree future publication of Part 727 is
additional claims and modification, that its definition violates any unnecessary, in part because these
respectively, are prospective only. The principles of finality. Currently, a regulations do not apply to any claim
Department has thus taken considerable claimant may file a request for filed after March 31, 1980. Thus, more
care to ensure that its revisions do not modification at any time within one than twenty years have passed since
violate the Supreme Court’s general year after the denial of a claim. 20 CFR claims were filed to which these
prohibition against retroactive § 725.310 (1999). In fact, even a new regulations apply. In addition, the Code
regulations. claim filed during the one-year period of Federal Regulations has printed these
(c) One commenter urges that the will serve to reopen the existing claim. regulations annually for twenty years.
Department’s prospective revisions not See Betty B Coal Co. v. Director, OWCP, Consequently, access to Part 727 is
be made applicable to subsequent 194 F3d 491, 497 (4th Cir. 1999). readily available in the public domain
claims. Instead, the commenter suggests, Consequently, an employer has no for the relatively few claims still subject
they should be applied only to first-time expectation that a denied claim has to those regulations.
claims filed by new claimants. The been fully and completely resolved until (c) No other comments were received
Department does not agree that a after the one-year period has passed. concerning this section, and no changes
subsequent claim differs from a first- The Department’s definition of a have been made in it.
time claim for purposes of applying the ‘‘pending claim’’ is intended to prevent
revised regulations. In 1983, the the application of certain regulatory 20 CFR 725.101
Department considered a similar request revisions (those which will be applied (a)(i) The Department proposed
when it promulgated regulations to only on a prospective basis) to any amending the definition of ‘‘benefits’’
implement the Black Lung Benefits claim that was filed before the date on (§ 725.101(a)(6)) in the initial notice of
Amendments of 1981, which transferred which those revisions take effect. The proposed rulemaking to include the cost
liability for certain claims from coal definition includes claims pending at of the initial complete pulmonary
mine operators to the Black Lung various stages of adjudication (i.e., examination of the claimant authorized
Disability Trust Fund. A number of before the district directors, the Office of by the statute, 30 U.S.C. 923(b);
commenters suggested that a ‘‘claim’’ Administrative Law Judges, the Benefits § 725.406, and subsidized by the Trust
should be defined as a cause of action, Review Board, or the federal courts). In Fund. 62 FR 3386 (Jan. 22, 1997).
so that an individual would only ever addition, some claims that have been Several commenters opposed the change
have one ‘‘claim’’ for benefits. The finally denied prior to the effective date because they believed the revised
Department rejected the suggestion: of the revisions can be revived by a definition would impose liability for the
The Department believes that the claims as subsequent request for modification. For examination’s cost on the claimant if the
cause of action analogy is misplaced. The example, a claim may have been finally claim were ultimately denied or
more correct analogy would be to a denied three months before the rules withdrawn. In response, the Department
complaint or other preliminary pleading
which is filed to initiate an adjudication of
became effective, and the claimant may assured the commenters that the cost
the nature of the right or the validity of the file a request for modification nine could not be shifted to the claimant
cause of action which is being asserted. months later (or six months after the despite its classification as a ‘‘benefit.’’
Throughout its various versions, the Act has revised regulations took effect). The 64 FR 54982 (Oct. 8, 1999). The
been consistent in requiring that a claim Department does not intend that the Department also proposed adding a
must be filed before any determination of revised regulations that are prospective reference to augmented benefits and a
eligibility for benefits could be undertaken. only (including, for example, the cross-reference to its definitional
48 FR 24283 (May 31, 1983). Similarly, limitation on evidence) be used to regulation (§ 725.520(c)). 64 FR 55023
the Department has always required that adjudicate such a claim, and has drafted (Oct. 8, 1999). The Department intended
a subsequent claim be adjudicated the definition of a ‘‘pending claim’’ to this change for the convenience of
according to the standards in effect at ensure that result. parties looking for a comprehensive
definition. 64 FR 54982 (Oct. 8, 1999). 33 U.S.C 907, as incorporated by 30 coal mining industry as a whole by
(ii) Citing the Department’s U.S.C 932(a). Section 7(e) provides: imposing the costs on the Trust Fund.
representations concerning the In the event that medical questions are 26 U.S.C. 9501(d)(1). As money payable
exclusion of the complete pulmonary raised in any case, the Secretary shall have under section 932(a), which
examination from costs recoverable the power to cause the employee to be incorporates section 7, the pulmonary
from the claimant, two comments now examined by a physician employed or examination cost is properly classified
support the amended definition. (iii) selected by the Secretary and to obtain from as a ‘‘benefit’’ and the liable operator
One comment opposes the change such physician a report containing his must reimburse the Trust Fund for such
because it shifts the cost of the estimate of the employee’s physical cost under 30 U.S.C. 934. The
impairment * * * The Secretary shall have
examination to the responsible operator the power in his discretion to charge the cost
responsible operator is required to
if the claim is approved. The of examination or review under this secure the payment of benefits for
Department responded to this argument subsection to the employer, if he is a self- which it is liable under section 932. 30
in the second notice of proposed insurer, or to the insurance company which U.S.C. 933(a). The Department
rulemaking by noting its disagreement; is carrying the risk, in appropriate cases, or accordingly rejects the comment’s
since 1978, the regulations (20 CFR to the special fund * * *. position that it lacks the authority to
725.406(c)) have required the operator 33 U.S.C. 907(e). Each miner’s claim define ‘‘benefits’’ to include the cost of
found liable for the claimant’s benefits filed under the Black Lung Benefits Act the pulmonary examination required by
to reimburse the Fund for the expenses (BLBA) raises ‘‘medical questions’’ 30 U.S.C. 923(b). (v) No other comments
associated with the initial pulmonary because the status of the miner- were received concerning this
examination. 64 FR 54982 (Oct. 8, claimant’s pulmonary condition is the definition, and no changes were made
1999). The present comment states the primary issue in every claim. Section in it.
Department does not have the authority 7(e) authorizes the Department to (b)(i) In the initial notice of proposed
to shift the cost of the examination, provide each miner-claimant with a rulemaking, the Department proposed
citing West Virginia University complete pulmonary examination, and amending § 725.101(a)(13), ‘‘Coal
Hospitals, Inc. v. Casey, 499 U.S. 83 therefore address the ‘‘medical Preparation,’’ and (a)(19), ‘‘Miner or
(1991). At issue in Casey was the questions’’ raised by the claim. Thus, Coal Miner,’’ to specify that coke oven
authority of a federal court to shift Section 7(e) provides the Department workers are excluded from coverage
liability from one party to its opponent with the method for fulfilling its under the BLBA. 62 FR 3386, 3387 (Jan.
for the fees of experts retained to obligation under 30 U.S.C. 923(b) to 22, 1997). The Department received
perform nontestimonial services. The provide each miner with the three comments supporting the
Supreme Court held the fee shifting opportunity to substantiate his claim by proposed change, which were noted in
must be limited to the specific undergoing a complete pulmonary the preamble to the second proposed
categories of expenses enumerated in evaluation. Section 7(e) also authorizes rulemaking, 64 FR 54982 (Oct. 8, 1999).
the statute which authorized the trial the Department, at its discretion, to The Department further clarifies the
court to award fees. Because charge the cost of the examination to the intended scope of these definitions. In
nontestimonial expert services did not responsible operator. The Department’s the initial notice of proposed
come within the ambit of any statutory regulations have recognized this rulemaking, the Department noted a
category of reimbursable expenses, the statutory authority since 1972, when long held position that ‘‘the preparation
Court held the district court could not section 7 was first incorporated into the activities undertaken at coke ovens are
reallocate fee liability. In so holding, the BLBA, without regard to whether the not covered by the BLBA.’’ 62 FR 3348
Court rejected the argument that such claimant ultimately prevailed. 20 CFR (Jan. 22, 1997). The Department now
expenses could be considered part of an 725.139, 37 FR 25466 (Nov. 30, 1972) believes this language may have been
‘‘attorney’s fee,’’ liability for which did (deputy commissioner has discretion to too broad, and accordingly amends the
shift. assess the operator or its insurer for the language of § 725.101(a)(19) to effectuate
The Department considers Casey cost of a physician’s examination its intention that the definition of
inapposite to the redefinition of conducted to resolve medical questions ‘‘Miner’’ exclude from coverage only
‘‘benefits.’’ That decision establishes raised); 725.133 (1978) (deputy those workers in the coke industry who
only that fees for nontestimonial expert commissioner has the authority to are actually employed as coke-oven
services cannot be considered ‘‘attorney assess a notified operator or its insurer workers, i.e., those at the coke-
fees’’ for purposes of a statute which for the cost of the miner-claimant’s producing ovens. See, e.g., Sexton v.
shifts attorney fee liability to a initial medical examination). The Mathews, 538 F.2d 88, 89 (4th Cir. 1975)
prevailing party’s opponent. Casey does Department promulgated its current (holding an individual who loaded coke
not preclude the Department from regulation implementing section 7(e) for ovens with coal, leveled the coal inside
defining a particular nontestimonial BLBA purposes (20 CFR 725.406(c)) in the oven, and shoveled finished coke for
expert service—the § 725.406 medical 1978 after Congress amended section shipment, was not a ‘‘coal miner’’ under
examination—as a ‘‘benefit,’’ liability 413(b) to provide for complete the BLBA). The Department, however,
for which does shift to the responsible pulmonary examinations. It requires the does not intend for the identity of the
operator if the claim is ultimately operator adjudged liable for the individual’s employer as a coke
approved. (iv) The Department has the claimant’s benefits to reimburse the manufacturer to be the determinative
statutory authority to define ‘‘benefits’’ Fund for the expenses associated with inquiry. In some cases, coke industry
to include the cost of the initial medical the examination. The Department has employees may be otherwise employed
examination, and to require a determined that such assessments are in activities which amount to custom
responsible operator to pay for the appropriate in those cases in which the coal preparation or come within the
examination in the event the claim is award of benefits for which an types of activities enumerated in
ultimately approved. The Black Lung individual operator is liable has become § 725.101(a)(13). Those workers should
Benefits Act (BLBA) incorporates final. In the remaining cases, the not be excluded from BLBA coverage
section 7 of the Longshore and Harbor Department believes the cost of the solely because they are employed by a
Workers’ Compensation Act (LHWCA). examinations should be absorbed by the coke producer. See Hanna v. Director,
OWCP, 860 F.2d 88, 92 (3d Cir. 1988) Department that ‘‘coal mine dust’’ is a excise tax. Finally, using state benefits
(stating: ‘‘[T]he appropriate permissible interpretation of BLBA). entirely funded by state general
characterization of [the claimant’s] work (c) The Department proposed revenues to offset federal benefits would
for purposes of entitlement under the amending § 725.101(a)(16), ‘‘District confer a windfall on responsible
Act is determined by evaluation of what Director,’’ in the initial notice of operators, at least in those few cases in
he did, and not by who employed proposed rulemaking to substitute that which such state payments may be
him’’). The plain language of the title for ‘‘Deputy Commissioner,’’ and available concurrently with a period of
statutory and regulatory definitions of ensure that any actions taken by a federal entitlement. If such were the
‘‘miner’’ focuses on what work the district director would be afforded the case, an individual operator would be
individual performed and where (s)he same legal force as any action of a able to offset its monthly federal
performed that work, and not who deputy commissioner. 62 FR 3348, 3386 benefits liability by an amount of money
employed the individual. With respect (Jan. 22, 1997). No comments were the state paid the claimant from its own
to ‘‘Coal preparation,’’ the Department received concerning this definition, and general revenues. Thus, the operator
no changes were made in it. would profit by using state benefits
has deleted the reference to coke oven
(d) The Department proposed which it had not paid to reduce its
workers because the phrase is amending § 725.101(a)(17), ‘‘Division or
redundant in view of the language in federal liability. The proposed
DCMWC,’’ in the initial notice of
‘‘Miner.’’ (ii) No other comments were definition of ‘‘workers’ compensation
proposed rulemaking to identify the
received concerning these definitions. law’’ eliminates this windfall. (iv) One
agency within the Department which
(iii) The Department has changed comment opposes the change because it
contains the Office of Workers’
§ 725.101(a)(19) by substituting the codifies an alleged political agreement
Compensation Programs and the
words ‘‘coal mine dust’’ for ‘‘coal dust.’’ between the Department and one
Division of Coal Mine Workers’
This change makes the regulation Compensation. 62 FR 3348, 3386 (Jan. congressman, and favors only
consistent with the Department’s long- 22, 1999). No comments were received Pennsylvania residents. The commenter
held position that the occupational dust concerning this definition, and no also states that the change will not affect
exposure at issue under the BLBA is the changes were made in it. pending or new claims from that state,
total exposure arising from coal mining (e)(i) In the initial notice of proposed but may have unintended consequences
and not only exposure to coal dust rulemaking, the Department proposed elsewhere. Neither point provides any
itself. The Department previously amending the definition of ‘‘workers’ basis for changing the Department’s
explained this position in the second compensation law’’ (725.101(a)(31)) to proposal, the purpose of which is to
notice of proposed rulemaking. There exclude certain benefits paid from a clarify long-standing policy. With
the Department made the same change state’s general revenues. 62 FR 3387 respect to the first point, the comment
to § 725.491(d). 64 FR 54998 (Oct. 8, (Jan. 22, 1997). The proposal responded fails to consider the historical basis of
1999). A comment responding to the to decisions from the Benefits Review the Department’s policy and its
Board and Third Circuit rejecting the grounding in the legislative history of
initial notice of proposed rulemaking,
Department’s longstanding the BLBA. Part B of the BLBA contains
62 FR 3409 (Jan. 22, 1997), had
interpretation of the term. O’Brockta v. a ‘‘maintenance of effort’’ provision, 30
identified an inconsistency between the
Eastern Associated Coal Co., 18 Black U.S.C. 924(d), which states that no
reference to ‘‘coal mine dust’’ in the
Lung Rep.1–72, 1–79/1–80 (1994), aff’d federal benefits shall be paid to the
definition of a ‘‘miner’’ (§ 725.202) and
sub nom Director, OWCP v. Eastern resident of any State which reduces the
the reference to ‘‘coal dust’’ in resident’s state worker’s compensation
§ 725.491. The Department agreed that a Associated Coal Co., 54 F.3d 141, 148–
150 (3d Cir. 1995). 62 FR 3348–49 (Jan. benefits because of a federal award.
consistent reference to ‘‘coal mine dust’’ Both Parts B and C also each require
22, 1997). The Department received
should be used throughout the federal benefits to be reduced by the
comments to its initial proposal
regulations. ‘‘Coal mine dust’’ means amount of any payments received by a
opposing the change and, in the second
any dust generated in the course of coal claimant under a state workers’
notice of proposed rulemaking,
mining operations, including explained that the Third Circuit had compensation program for disability
construction. The Department noted suggested the Department alter the caused by pneumoconiosis. 30 U.S.C.
that this interpretation is consistent regulation to reflect accurately the 922(b), 932(g). On the eve of the BLBA’s
with Congressional intent to Department’s intended meaning. 64 FR enactment in 1969, the House Managers
compensate for a broad array of dust- 54982–83 (Oct. 8, 1999). (ii) Two new of the bill explained in the joint
related lung diseases which can be comments support the Department’s conference report: ‘‘Benefit payments
linked to coal mining. 64 FR 54998 (Oct. change. (iii) One comment opposes the made under State programs funded by
8, 1999). Finally, by making the change amended definition because it will general revenues are not included in the
in § 725.101(a)(19), the Department adversely affect the Trust Fund maintenance of effort provision in the
expresses its disagreement with the financially by making certain state House amendment for the reason that
result reached by the Tenth Circuit in benefits unavailable for offset against they are not to be considered workmen’s
Bridger Coal Co./Pac. Minerals, Inc. v. corresponding federal benefits. The compensation, unemployment
Director, OWCP [Harrop], 927 F.2d 1150 commenter notes the change will compensation, disability insurance
(10th Cir. 1991), which held that ‘‘coal therefore indirectly affect the coal programs as such programs are generally
dust’’ means only dust actually producers who finance the Fund. The understood, and as they are intended to
containing coal particulates. 927 F.2d at comment, however, overlooks the fact be understood within the context of this
1154. In the Department’s view, Harrop that any adverse effect on operators is benefit program.’’ H.R. Rep. No. 761,
represents too narrow a reading of expected to be minimal because of the 91st Cong., 1st Sess. (1969), reprinted in
Congress’ intent. See William Bros., Inc. very small number of claims which Senate Comm. on Labor and Public
v. Pate, 833 F.2d 261, 264 (11th Cir. would be affected by the exclusion of Welfare, Legislative History of the
1987); Williamson Shaft Contracting Co. state-funded benefits. This effect is also Federal Coal Mine Health and Safety
v. Phillips, 794 F.2d 865, 870 (3d Cir. spread across the entire industry since Act of 1969, 1507, 1530 (1975).
1986) (both cases agreeing with the the industry as a whole pays the coal Congressman Dent of Pennsylvania
reinforced this understanding in his which the miner must have received a calendar quarter of coal mine
discussion of the offset provisions and pay for work as a miner for at least 125 employment, particularly for periods of
which state benefits could be used to days; computing a year included coal mine employment that occurred
offset the federal benefits: periods when the miner received pay many years ago. Although this comment
We are not talking about State programs while on an approved absence, e.g. raises a legitimate concern, no change in
funded through general revenues. Any State vacation or sick leave. The Department the regulation is necessary. The
that has such programs could reduce benefits proposed that, to the extent the proposed formula provides a default
payable to persons eligible to receive them evidence permitted, the beginning and means of determining the length of time
under this provision. If the State did not so ending dates of all periods of coal mine an individual worked as a coal miner.
reduce the benefits, such benefits could not
be offset or deducted from payments under
employment be ascertained. In the event This method may be used when the
this provision. the evidence was insufficient to beginning and ending dates of the
establish such dates or if the miner’s miner’s work cannot be ascertained
115 Cong. Rec. 39713 (1969). No employment lasted less than a year, the from the existing evidence, or the miner
contrary expression of understanding Department proposed a formula for worked less than a year as a miner.
appears in the legislative history. computing the length of coal mine Moreover, the Department notes that the
Consequently, the Department fairly employment based on the miner’s regulation allows a party to introduce
understood Congressional intent to
annual earnings compared to average any relevant evidence concerning the
exclude state-funded disability benefits
wage statistics for miners compiled by miner’s employment. In any individual
being used to reduce federal benefits.
the Bureau of Labor Statistics (BLS). In case, the miner may prove that the
The Third Circuit did not invalidate the
response to a comment opposing the wages he received were below the
Department’s policy or contradict its
understanding of Congressional intent; inclusion of approved absences from industry average. (iv) One comment
the Court merely held that the work in computing the length of coal opposes the inclusion of non-work
Department’s regulation was mine employment, the Department cited periods of employment when
inconsistent with its policy, and judicial decisions upholding its calculating a year of employment
therefore the policy could not be position. 64 FR 54983 (Oct. 8, 1999). In because the miner is not exposed to any
sustained. As for the limited impact of the second notice of proposed occupational hazard during such
proposed § 725.101(a)(31) on rulemaking, the Department altered the periods. The Department disagrees, at
Pennsylvania residents, the Department regulation to account for leap years by least with respect to determining
acknowledges that Pennsylvania adding ‘‘366 days’’ to the definition. 64 whether the miner worked a ‘‘year.’’
enacted legislation in 1970 to suspend FR 55024 (Oct. 8, 1999). The Judicial precedent has firmly
state benefits paid from general Department now has amended the established the legitimacy of counting
revenues if the claimant received a language of § 725.101(a)(32) to clarify periods of absence from the workplace
federal award. 77 P.S. 1401(k). Those that periods of approved absences count for sickness or vacations as part of the
benefits therefore become unavailable only towards the miner’s ‘‘year’’ of miner’s year(s) of employment. See 64
for offset against federal payments in employment, and not to the actual 125 FR 54983 (Oct. 8, 1999). Despite the lack
any event. The possibility remains that ‘‘working days’’ during which the miner of actual exposure to coal mine dust
Pennsylvania may change its law in the must have worked and received pay as during these periods, the employment
future. Because the O’Brockta decision a miner. Thus, in order to have one year relationship between the miner and his
raises doubt concerning the of coal mine employment, the regulation employer remains intact. Consequently,
Department’s interpretation of ‘‘workers’ contemplates an employment such periods of non-exposure may be
compensation law,’’ the Department relationship totaling 365 days, within included in the computation of the
believes the regulation should be which 125 days were spent working and miner’s work history. The Department
clarified to implement Congressional being exposed to coal mine dust, as agrees, however, that such absences
intent to exclude state benefits funded opposed to being on vacation or sick should not be included when
by general revenues. Finally, the leave. (ii) In response to the second determining whether the miner actually
potential impact of the change on states notice of proposed rulemaking, two worked at least 125 days during the
other than Pennsylvania is speculative comments support the new definition year. The 125-day requirement means
at best, but all states, like the public as because it does not afford definitive days of actual employment as a coal
a whole, are entitled to a clear statement weight to Social Security miner, and the regulation has been
of governmental policy. In the event any Administration records. The clarified to make the Department’s
other State enacts legislation Department emphasized in its second position clear. See generally Director,
comparable to the Pennsylvania notice of proposed rulemaking that OWCP v. Gardner, 882 F.2d 67, 69–70
program in the future, the legislature § 725.101(a)(32) does not place special (3d Cir. 1989) (noting ‘‘[t]he 125 day
will have a clear understanding of the weight on any particular type of limit [in 20 CFR 725.493(b)] relates to
Department’s position on the meaning evidence in determining how long an the minimum amount of time the miner
of ‘‘workers’ compensation law.’’ (v) No individual worked as a coal miner. 64 may have been exposed to coal dust
other comments were received FR 54983 (Oct. 8, 1999). Rather, while in employment by [the]
concerning this definition, and no § 725.101(a)(32)(ii) recognizes that operator.’’); but see Thomas v.
changes were made in it. factual findings concerning a miner’s BethEnergy Mines, Inc., 21 Black Lung
(f)(i) The Department initially work history should be based on all of Rep. 1–10 (1997) (holding sick leave
proposed a uniform definition of ‘‘year’’ the credible evidence available to the may be counted in determining whether
(§ 725.101(a)(32)) for computing the adjudicator. (iii) One comment opposes miner worked 125 days during year).
length of coal mine employment when the proposed formula for computing a Thus, the periods of approved absence
required in the adjudication of claims. year because it may underestimate a from the workplace may be counted
62 FR 3387 (Jan. 22, 1997). Under the miner’s employment if the miner only towards the miner’s calendar year
proposed definition, a ‘‘year’’ worked in a low-wage geographic area. of work. (v) One comment generally
encompassed either a calendar year or The commenter urges crediting a Social opposes the definition contending it is
partial periods totaling a year, during Security earnings quarter of coverage as based on outmoded concepts and
science. The commenter notes that parties. The Department responded with concluded Greenwich Collieries does
miners today are exposed to less dust as a detailed analysis of the relevant not prohibit the Department from
a result of more hygienic working precedent and its own authority. 64 FR assigning burdens of proof to parties
conditions. The Department, however, 54972–74 (Oct. 8, 1999). For a number other than the claimant if necessary to
believes the definition provides a of reasons, the Department concluded achieve the goals of the BLBA. 64 FR
rational methodology for determining that the Administrative Procedure Act 54973 (Oct. 8, 1999). Finally, the
the length of a miner’s employment (APA), 5 U.S.C. 556(d), does not Department surveyed other decisions
relationship with an operator. The preclude it from incorporating which upheld the authority of an agency
essential issues are the period(s) of time presumptions into the regulations to allocate the burden of persuasion by
the coal mine operator employed the which reallocate the burden of proving means of factual presumptions. This
miner, and the number of days during certain facts. First, the statute itself caselaw lent additional support for the
a year of employment that the places limitations on the operation of Department’s conclusion that its general
individual actually worked as a coal the APA while conferring on the rulemaking authority permitted it to
miner. If the miner actually worked at Secretary broad regulatory authority. adjust the burdens of proof among the
least 125 days during a calendar year or The Federal Mine Safety and Health Act parties, provided a rational basis existed
partial periods of different years totaling (FMSHA), which includes the Black between the proven facts and those
a 365-day period, then the miner has Lung Benefits Act (BLBA) as title IV, presumed.
worked one year for purposes of the generally exempts its provisions from (b) One comment contends the
program regulations. Whether the miner the APA. 30 U.S.C. 956. The BLBA, Department has no authority under the
was exposed to reduced levels of coal APA to allocate burdens of proof in a
however, incorporates section 19 of the
mine dust during the working days is proceeding before an administrative law
Longshore and Harbor Workers’
irrelevant to this computation. Rather, judge (ALJ). The comment cites no
Compensation Act (LHWCA), 33 U.S.C.
such evidence may be relevant to an authority, statutory or otherwise, for this
919(d), thereby making the APA
operator’s attempt to rebut the proposition. For purposes of responding
applicable to the adjudication of claims.
presumption of regular and continuous to the comment, the Department
The incorporation of the APA is subject
exposure to coal mine dust found in assumes the reference to ALJ
to one important constraint: Congress
§ 725.491(d). With respect to the 125- proceedings means a reference to a
conferred on the Secretary the authority
working day issue, the Department proceeding governed by the APA,
to vary the terms of the incorporated including 5 U.S.C. 556(d) (allocating
notes its disagreement with Landes v.
provisions by regulation. 30 U.S.C. burden of persuasion to proponent of a
Director, OWCP, 997 F.2d 1192, 1197–
932(a) (provisions of LHWCA apply to rule or order). In the second notice of
98 (7th Cir. 1993), and Yauk v. Director,
BLBA ‘‘except as otherwise provided proposed rulemaking, the Department
OWCP, 912 F.2d 192, 195 (8th Cir. 1989)
* * * by regulations of the Secretary’’). examined the statutory authority which
(both cases decided under 20 CFR
See generally Director, OWCP v. permits it to vary the terms of the APA
718.301(b)). In both cases, the court held
National Mines Corp., 554 F.2d 1267, by regulation. 64 FR 54973 (Oct. 8,
that a miner should receive credit for a
1273–74 (4th Cir. 1977); Patton v. 1999). The comment provides no
full year of employment for each partial
period of each calendar year during Director, OWCP, 763 F.2d 553, 559–60 refutation of the conclusions drawn
which the miner worked at least 125 (3d Cir. 1985). Second, the Department from this analysis. Because the
days. The Department believes the noted that the Supreme Court’s decision Department has already responded to
partial periods must be aggregated until in Director, OWCP v. Greenwich the substance of the comment’s
they amount to one year of coal mine Collieries, 512 U.S. 267 (1994), did not objection, no further response is
employment comprising a 365-day address, much less restrict, the warranted.
period. Only then should the factfinder Department’s statutory authority to alter (c) One comment suggests the
determine whether the miner spent at the applicability of the APA. In Supreme Court’s decision in Allentown
least 125 working days as a coal miner Greenwich Collieries, the Supreme Mack Sales & Service, Inc. v. NLRB, 522
during the year. See Croucher v. Court addressed only whether the U.S. 359 (1998), prohibits the
Director, OWCP, 20 Black Lung Rep. 1– Department had promulgated a Department from reallocating burdens of
67 (1996) (holding ‘‘year’’ means regulatory presumption (20 CFR 718.3) proof absent statutory authority. As an
calendar year or partial periods totaling that required a finding for the claimant initial matter, the Department addressed
calendar year; opposing party may if the evidence for and against a this decision in its second notice of
establish irregular employment by claimant on a particular issue was proposed rulemaking. 64 FR 54973 (Oct.
showing miner worked fewer than 125 evenly balanced. The Court considered 8, 1999). The Department quoted dicta
days during year). Consequently, no § 718.3(c) too ambiguous to operate as from the majority opinion which
basis has been provided for abandoning an exception to the APA’s requirement explicitly supports the authority of an
the proposed definition of a ‘‘year.’’ (vi) that the party who bears the burden of agency to promulgate ‘‘counterfactual
No other comments were received persuasion must prevail by a evidentiary presumptions * * * as a
concerning this definition, and no preponderance of the evidence. Because way of furthering legal or policy
changes were made in it. the Court’s interpretation of the goals[.]’’ 522 U.S. at 378. The comment
regulation resolved the issue, the Court does not respond to this analysis, or
20 CFR 725.103 did not reach the Department’s explain in what manner the Department
(a) In the initial notice of proposed argument that it has statutory authority has erroneously interpreted the
rulemaking, the Department proposed to override 5 U.S.C. 556(d) by regulation decision. In any event, the Department
§ 725.103 as a regulation of general and shift the burden of persuasion as believes Allentown Mack provides no
applicability to delineate the general well. Furthermore, the Court did not precedential basis for limiting the
burdens of proof for the parties to a decide which party bears the burden of Department’s authority to assign
claim. 62 FR 3388 (Jan. 22, 1997). The persuasion; rather, it determined only burdens of production and persuasion
comments opposing this regulation what standard of proof must be met by to parties other than the claimant. That
challenged the Department’s authority the party bearing the burden of case involved a dispute over the
to adjust the burdens of proof among the persuasion. The Department therefore evidentiary showing a company must
make to deny recognition to an against claims from employees only used in, or to be used in, the work of
incumbent union. According to NLRB peripherally involved in the coal mining extracting’’ coal. 30 U.S.C. 802(h)(2)
case law, the company must establish a process. The revisions primarily (emphasis supplied); see also 20 CFR
‘‘reasonable doubt’’ that the union rearrange the component parts of 20 725.101(a)(23) (renumbered as
enjoys the majority support of its CFR 725.202(a), and segregate special § 725.101(a)(12)). A construction worker
members. The NLRB held that provisions involving construction and who builds the ‘‘coal mine’’ is a
Allentown Mack had not established the transportation workers. The regulation ‘‘miner’’ to the extent work at the
existence of such doubt by a does include a rebuttable presumption covered site exposes him or her to ‘‘coal
preponderance of the evidence. The that any on-site worker at a coal mine mine dust.’’ Moreover, the fact that the
Supreme Court ultimately overturned or coal preparation facility is a ‘‘miner.’’ claimant worked at non-operational
the Board’s factual findings because the This presumption reflects the rational mines is not, by itself, sufficient to
Court concluded the Board had applied assumption that an individual working establish a lack of coal mine dust
in actuality a higher burden of proof in or around a coal mine is involved in exposure. The construction process
than it had announced in its decisions. the extraction, preparation or itself may expose the miner to coal mine
522 U.S. at 378–80. Although the transportation of coal, or in the dust. In addition, a coal mine
comment depicts this decision as an construction of a mine site; these construction worker exposed to coal
extension of Greenwich Collieries, functions are enumerated by the mine dust from an operating coal mine
Allentown Mack has no bearing on an statutory definition of a ‘‘miner.’’ The in the vicinity of the construction site is
agency’s authority to vary the terms of operator may rebut the presumption by a ‘‘miner’’ under the Black Lung
the APA or reallocate the burden of disproving either the required nexus Benefits Act (BLBA). R&H Steel
persuasion to a party other than the between the worker’s duties and coal Buildings v. Director, OWCP, 146 F.3d
proponent of a rule or order. Allentown mining, or any regular employment at a 514, 516–17 (7th Cir. 1998).
Mack establishes only the proposition coal mine facility. This burden is not Pate and Harrop, cited by the
that an agency cannot announce one onerous given the operator’s access to commenter, do not provide compelling
standard of proof in principle and apply information about the use and duties of authority to depart from the proposed
a higher standard of proof in practice. the workers at its facilities. regulation. In Pate, the Court stated that
The Department therefore rejects the ‘‘construction workers are covered only
(c) One comment objects to coverage
comment’s position. if they have been exposed to dust
for coal mine construction workers arising from the extraction or
(d) No other comments were received whose jobs are integral to the
concerning this definition, and no preparation of coal.’’ 833 F.2d at 266
construction of a coal mine site or (footnote omitted). Limiting covered
changes were made in it. facility. The commenter argues that construction activities to work involving
Subpart B coverage should include only those dust exposure from coal extraction and
construction workers whose jobs are preparation, however, incorrectly
20 CFR 725.202 integral to the extraction or preparation combines two independent elements of
(a) The Department proposed of coal, citing William Bros., Inc. v. Pate, the definition of ‘‘miner’’: the
changing the definition of ‘‘miner’’ in 833 F.2d 261 (11th Cir. 1987), and ‘‘function’’ requirement for qualifying as
the initial notice of proposed Bridger Coal Co./Pac. Minerals, Inc. v. a miner under the BLBA, i.e., working
rulemaking. 62 FR 3388–89 (Jan. 22, Director, OWCP [Harrop], 927 F.2d 1150 in the extraction or preparation or
1997). Specifically, the Department (10th Cir. 1991), and only if those transportation of coal or in coal mine
proposed creating a rebuttable individuals are also exposed to coal construction, and the exposure
presumption that any individual dust as a result of their work. The requirement for a construction worker.
working in or around a coal mine or Department, however, believes the focus The two are unrelated. The only
coal preparation facility was a ‘‘miner’’ on mine construction, rather than coal plausible explanation for separately
within the meaning of the Black Lung extraction or preparation, is consistent including construction workers in the
Benefits Act (BLBA). The party liable for with Congressional intent in extending statutory definition of ‘‘miner’’ is
benefits could rebut the presumption by coverage to construction workers. The Congress’ recognition of their unique
proving the individual did not perform Fourth Circuit has identified the flaw in functional status. Construction workers
coal extraction, preparation or using the traditional ‘‘situs/function’’ generally perform their work before a
transportation work while at the mine test for coal mine construction workers: mine becomes operational.
site, or did not engage in mine ‘‘Coal mine construction * * * involves Consequently, they generally will not be
maintenance or construction. The neither the extraction nor preparation of involved in the extraction or
presumption could also be rebutted by coal. If, therefore, we apply the two-step preparation of coal, or exposed to dust
demonstrating that the individual was test to coal mine construction workers, from such activities. While rejecting this
not regularly employed around a coal they would rarely, if ever, qualify as position, the Court did acknowledge the
mine or coal preparation facility. The miners under the Act.’’ The Glem Co. v. Department’s authority to implement its
Department also proposed restructuring McKinney, 33 F.3d 340, 342 (4th Cir. views through regulation: ‘‘If the
the existing regulation (20 CFR 725.202) 1994). The logical inquiry concerning Secretary has a position he wishes to
to differentiate special provisions the construction workers’ activities express, he can do it through the proper
applicable only to transportation and must therefore look to coal mine forum, i.e., the implementation of new,
construction workers. See generally 64 construction, which inevitably (and clarifying regulations.’’ 833 F.2d at 265.
FR 3349 (Jan. 22, 1997). The Department generally) involves the pre-extraction Section 725.202 represents the exercise
did not propose any further changes to work of building the mine facility itself. of that authority.
this regulation in the second notice of That such work is consistent with work In Harrop, the Court held that the
proposed rulemaking. 64 FR 54971 (Oct. at a coal mine is evident from the exposure to ‘‘coal mine dust,’’ required
8, 1999). statutory definition of ‘‘coal mine:’’ ‘‘an by 20 CFR 725.202(a) for coverage of a
(b) Two comments generally object to area of land and all structures, facilities, construction worker, involves exposure
the revised definition of ‘‘miner,’’ * * * shafts, slopes, tunnels * * * and to ‘‘dust containing coal.’’ 927 F.2d at
arguing that it forces operators to defend other property, real or personal, * * * 1154, citing Pate. It interpreted the
statutory coverage of construction filing of a claim as an element of Department to reopen an approved

workers to reach only those individuals entitlement for a miner. 62 FR 3389 (Jan. claim if issues arise concerning its
who are exposed to actual coal dust, 22, 1997). This change clarified that a validity. Subsection (d) simply
despite acknowledging the variety of miner is entitled to benefits for all recognizes the Department’s authority to
other (non-coal) dusts which may be periods of compensable disability, investigate any finally approved miner’s
inhaled at a mine construction site. The including any period which occurred claim if circumstances raise an issue
Department has consistently taken the prior to the filing of the claim. 62 FR pertaining to the validity of the award.
position that ‘‘coal mine dust’’ means 3349 (Jan. 22, 1997). The Department Such authority is necessary in order to
any dust generated at a coal mine site, also incorporated into § 725.203 monitor a miner’s continuing eligibility
and that exposure to coal mine dust is provisions from 20 CFR 718.404, which and prevent the payment of benefits to
sufficient to meet the statutory was deleted. These provisions require any claimant whose eligibility ceases.
definition of ‘‘miner’’for construction an entitled miner to notify the The Department rejects the suggestion
workers. 20 CFR 725.202(a); see Department if (s)he returns to coal that this authority should be limited to
generally Williamson Shaft Contracting mining or comparable work, and cases involving fraud or the miner’s
Co. v. Phillips, 794 F.2d 865, 869 (3d authorize the Department to reopen a return to coal mining. Limiting the
Cir. 1986) (upholding validity of 20 CFR final miner’s award in appropriate reopening authority under subsection
725.202(a) because Congress understood circumstances for the development of (d) in this manner would be
‘‘coal dust’’ to mean ‘‘the various dusts additional evidence and the inconsistent with the Department’s
around a coal mine’’). The interpretation reevaluation of entitlement. 62 FR 3349, statutory authority to modify an award
of coverage reached by the Court in 3389 (Jan. 22, 1997). Finally, based on a factual mistake or change in
Harrop would effectively exclude most, § 725.203(b)(2) now refers to § 725.504, condition at any time within one year
if not all, construction workers from the which is the renumbered version of after the last payment of benefits. 33
definition of ‘‘miner’’ after Congress § 725.503A. 62 FR 3341 (Jan. 22, 1997). U.S.C. 922, as incorporated by 30 U.S.C.
explicitly changed the definition to The Department proposed no further 932(a); 20 CFR 725.310. Furthermore,
include them. The Department declines changes to § 725.203 in the second such a limitation would impinge on the
to adopt the more restrictive standard notice of proposed rulemaking. 64 FR right of responsible operator to petition
suggested by the Tenth Circuit and the 54971 (Oct. 8, 1999). (ii) The for modification and request a medical
commenter. Department has now further amended examination if circumstances call into
(d) One comment objects to the § 725.203(d), however, to restore question the entitlement of the miner.
application to construction workers of language requiring the beneficiary to The Department emphasizes that the
the rebuttable presumption that any on- submit ‘‘medical reports and other responsible operator does not have an
site worker is a ‘‘miner.’’ For the reasons evidence’’ if the Office determines the absolute right to compel the claimant to
expressed in paragraph (b), the evidence is necessary to resolve any submit to a medical examination for
Department believes any individual question concerning the validity of the purposes of the modification petition.
whose employment requires him or her award. This phrase appears in 20 CFR Selak v. Wyoming Pocahantas Land
to perform work at a coal mine can 718.404(b), and was inadvertently Company, 21 Black Lung Rep. 1–173, 1–
logically be presumed to be involved in omitted in the earlier proposal to change 178 (1999); see also Stiltner v.
a covered coal mine function. The § 725.203. The Benefits Review Board Westmoreland Coal Co., Black Lung
commenter has provided no reason to has since interpreted the phrase in Rep., BRB No. 98–0337, slip op. at 5
exclude construction workers from that § 718.404(b) to involve discovery (Jan. 31, 2000) (en banc) (holding
presumption, and the Department requests. Stiltner v. Westmoreland Coal operator does not have absolute right to
declines to do so. Co., Black Lung Rep., BRB No. 98–0337, compel claimant to respond to
(e) One comment received after slip op. at 5 (Jan. 31, 2000) (en banc). discovery request under 20 CFR
publication of the initial notice of The Department did not intend the 718.404(b) in connection with
proposed rulemaking and referenced changes to § 725.203(d) to foreclose modification petition). Upon production
again after publication of the second evidentiary development other than of reasonable evidence justifying the
notice objects to subsection (d), which medical examinations of the miner. The
request, however, the district director
describes the elements of entitlement for Department therefore adds the language
(or administrative law judge) may order
a miner and references the specific formerly in § 718.404(b) to § 725.203(d),
the claimant to submit to a medical
regulatory criteria in Part 718 for and clarifies its intent that the miner
examination. Selak, 21 Black Lung Rep.
establishing those elements. The may be required to submit to medical
at 1–179.
comment links its objection to criticisms examinations, produce medical
of the specific Part 718 regulations evidence and answer discovery requests (d) One comment urges the
rather than any aspect of subsection (d). when the circumstances raise any issue Department to limit its authority to
The Department’s responses to those concerning the validity of the award reopen awards under subsection (d) to
criticisms are discussed under the after the award becomes final. the first year after the award becomes
particular Part 718 sections. No further (b)(i) One comment suggests the final. Such a limitation, however, is
response in the context of this revision of subsection (a) improperly inconsistent with the Department’s
regulation is necessary. extends the eligibility period. The statutory authority to modify. 33 U.S.C.
(f) Two comments support the revised Department rejects this interpretation. 922, as incorporated. In the case of an
section 725.202. The change merely harmonizes that award, that authority extends to ‘‘one
(g) No other comments concerning provision with § 725.503, and ensures year after the date of the last payment
this section have been received, and no the miner’s entitlement to benefits for of compensation.’’ Furthermore, the
changes have been made in it. any period of eligibility which predates limitation would also adversely affect
the filing of a claim. See 62 FR 3349 the responsible operator’s right to
20 CFR 725.203 (Jan. 22, 1997). (ii) Two comments request modification if it became aware
(a)(i) The Department proposed approve of the change to subsection (a). of circumstances which call into
changing § 725.203 in the initial notice (c) Three comments oppose question the validity of the award. See
of proposed rulemaking to eliminate the subsection (d) because it permits the response to comments (c).
(e) In response to the initial notice of was receiving benefits. 104 Stat. 1388– (b) Reference should be made to the
proposed rulemaking, one comment 278 to 1388–280 (1990). Legislative Department’s response to comments
opposed subsection (d) because the history clearly established concerning § 725.219 to determine the
provision did not expressly Congressional intent to permit both the effect of marriage on a child’s
acknowledge that a claim may be ‘‘deemed’’ spouse and the legal spouse dependency status under
reopened if the miner’s condition to receive concurrent benefits. See H.R. § 725.209(a)(1).
improved. The Department previously Rep. No. 101–964, 1990 U.S.C.C. & A.N. (c) No comments concerning changes
rejected a similar suggestion when it 2649, 2650 (conference report). to this section were received in response
promulgated the final version of 20 CFR Accordingly, the Department proposed to either the initial notice of proposed
718.404 in 1980. The Department similar changes to § 725.204 to delete rulemaking or the second notice of
initially proposed § 718.404 with a the regulatory bar to ‘‘deemed’’ spouse proposed rulemaking, and no further
requirement that an entitled individual entitlement under the BLBA. The changes have been made in it.
contact the Office of Workers’ Department proposed no additional 20 CFR 725.212
Compensation Programs if ‘‘[h]is or her changes to this regulation in its second
respiratory or pulmonary condition notice of proposed rulemaking. 64 FR (a) In the initial notice of proposed
improves[.]’’ 43 FR 17727 (Apr. 25, 54971 (Oct. 8, 1999). rulemaking, the Department proposed
1978). The requirement was deleted in (b) Two comments approve of the amending § 725.212 to codify the right
the final version ‘‘in response to change to this section acknowledging of each surviving spouse of a deceased
comments and testimony stating that the eligibility of a spouse to receive miner to receive a full monthly benefit
pneumoconiosis does not, in fact, benefits despite the existence of a legal without regard to the existence of any
improve.’’ 45 FR 13694 (Feb. 29, 1980). impediment to the validity of the other entitled surviving spouse. 62 FR
The same commenter submitted an marriage to the miner unless the 3390 (Jan. 22, 1997). The Department
additional response to the second notice individual entered into the marriage concluded that both statutory analysis
of proposed rulemaking, and now with knowledge it was not valid. and Congress’ intent compelled this
approves of subsection (d) because it (c) No other comments concerning result, and explained at length the
does not preclude the right of a liable this section were received, and no reasoning behind the conclusion. 62 FR
party to challenge a final award at a changes have been made in it. 3350–51 (Jan. 22, 1997). See also
later date. The Department therefore § 725.537, and response to comments.
20 CFR 725.209 The Department proposed no further
declines to incorporate any language
affirmatively citing improvement in a (a) In the initial notice of proposed changes to this regulation in its second
miner’s health as grounds for reopening rulemaking, the Department erroneously notice of proposed rulemaking. 64 FR
an award. proposed changing § 725.209(a)(2)(ii) to 54971 (Oct. 8, 1999).
(f) No other comments were received state that, in order to be considered a (b) Five comments object to
concerning this section, and no changes dependent, a child who is at least 18 subsection (b) because it permits each
have been made in it. and not a student must be under a surviving spouse of a deceased miner to
disability that commenced before the receive full monthly benefits if (s)he
20 CFR 725.204 age of 22. 62 FR 3390 (Jan. 22, 1997). establishes eligibility regardless of the
(a) The Department proposed The purpose of the change was to reflect existence of any other entitled surviving
amending § 725.204 in the initial notice in the regulation itself the age by which spouse. The commenters assert that the
of proposed rulemaking to conform the certain children’s disabilities must change will increase the cost of paying
regulatory criteria for marital commence, a requirement imposed by survivors’ benefits. Increased costs
relationships to intervening changes in an incorporated provision of the Social alone do not justify denying eligible
the law since the regulation was issued Security Act. 42 U.S.C. 402(d)(1)(B)(ii), individuals the benefits to which they
in 1978. 62 FR 3349–50 (Jan. 22, 1997). as incorporated into the BLBA by 30 are entitled by law.
The Department provided a detailed U.S.C. 902(g). 62 FR 3350 (Jan. 22, (c) Two comments argue the change is
statutory analysis in the initial notice. 1997). After further consideration, not permitted by the relevant statutes;
To summarize: the Black Lung Benefits however, the Department reproposed one comment disputes the Department’s
Act (BLBA) incorporates the definition the regulation without the new conclusion that its earlier procedure
of a dependent ‘‘wife’’ used by the language. 64 FR 55026 (Oct. 8, 1999). was adopted in error, citing
Social Security Act (SSA), 42 U.S.C. Eliminating the age by which the undocumented representations by the
416(h)(1), as incorporated by 30 U.S.C. disability must have begun for a Social Security Administration (SSA) to
902(a)(2), (e). The SSA recognizes both dependent child harmonizes § 725.209 the Department in 1978. In the initial
‘‘legal’’ and ‘‘deemed’’ spouses; the with the statutory definition by notice of proposed rulemaking, the
latter is an individual who married the preserving the distinction between a Department provided a detailed legal
wage earner while ignorant that some child/augmentee and a child/beneficiary analysis of the pertinent statutory
legal impediment existed to deny (see § 725.221). A child who claims authorities and legislative history, all of
validity to the marriage. Before 1990, benefits in his or her own right based on which support awarding full monthly
§ 416(h) contained a provision personal disability (child/beneficiary) benefits to more than one surviving
preventing a ‘‘deemed spouse’’ from must prove the disability arose before spouse. See 62 FR 3350–51 (Jan. 22,
receiving benefits if a ‘‘legal’’ spouse age 22 as required by 30 U.S.C. 902(g). 1997). Congress amended the Social
existed and was receiving benefits on 30 U.S.C. 922(a)(3). A dependent child Security Act in 1965 to allow benefits to
the wage earner’s account. 42 U.S.C. who is an augmentee of a beneficiary, a divorced surviving spouse as a
416(h)(1)(B). The Department included however, is exempt from this ‘‘widow’’ of the miner. Pub. L. No. 89–
this limitation in the dependency requirement because the statutory 97, § 308(b)(1), 79 Stat. 286 (1965). The
criteria when it promulgated § 725.204. definition of ‘‘dependent’’ explicitly legislative history of the amendment
20 CFR 725.204(d)(1). In 1990, Congress exempts a ‘‘child’’ from the requirement clearly established Congress’ intent that
amended the SSA to remove the that disability begin by a certain age. 30 payment of benefits to two (or more)
prohibition on ‘‘deemed spouse’’ U.S.C. 902(a)(1). See generally 64 FR ‘‘widows’’ would not reduce the
entitlement if a legal spouse existed and 54983 (Oct. 8, 1999). benefits paid to either of the widows. S.
Rep. No. 404, 89th Cong., 1st Sess. basic benefits plus full augmentation.’’ Pub. L. 91–173, § 402(e), 83 Stat. 793
(1965), reprinted in 1965 U.S.C.C. & Coal Mine (BLBA) Procedure Manual, (1969) (emphasis supplied). The
A.N. 1943, 2047. In 1972, Congress ch. 2–900, ¶ 8.f (Sept. 1994). emphasized language excluded from
amended the BLBA definition of (f) One comment contends the coverage any miner’s survivor who later
‘‘widow’’ to adopt the Social Security Department lacks the authority to remarried, without regard to the
Act definition. 30 U.S.C. 902(e). The require an operator to pay the same subsequent termination of the marriage.
legislative history is equally clear that benefit twice. The Department rejects In 1972, Congress amended the
Congress intended to conform the BLBA this contention. As discussed above, the definition of ‘widow’ by enacting the
definition to the Social Security Act BLBA unequivocally requires the current version. In pertinent part, the
definition. S. Rep. No. 743, 92nd Cong., payment of full monthly benefits to each phrase ‘‘who is not married’’ replaced
2d. Sess., reprinted in 1972 U.S.C.C. & surviving spouse who fulfills the ‘‘who has not remarried.’’ The Senate
A.N. 2305, 2332. The BLBA also eligibility criteria. The statute does not report accompanying the proposed
reinforces this interpretation because it recognize any limitation on the liability amendments states that ‘‘[t]he term
requires a ‘‘widow’’ to receive benefits for these benefits, or any reduction in ‘widow’ in § 402(e) is likewise redefined
at prescribed rates and makes no the amount to which the eligible to conform to the Social Security Act
allowance for a reduction based on the surviving spouse is entitled. definition.’’ S. Rep. No. 743, 92nd
existence of more than one widow. 30 (g) Two comments support the change Cong., 2d. Sess. 30, reprinted in 2
U.S.C. 922(a)(2). To date, two courts of in subsection (b). Comm. On Labor and Pub. Welfare, 94th
appeals and the Benefits Review Board (h) No other comments were received Cong., 1st Sess., Legislative History of
have accepted the Department’s concerning this section, and no changes the Federal Coal Mine Health and
position. Peabody Coal Co. v. Director, have been made in it. Safety Act of 1969, at 1974 (1975). The
OWCP [Ricker], 182 F.3d 637, 642 (8th 20 CFR 725.213 legislative history therefore
Cir. 1999); Mays et al. v. Piney unequivocally establishes congressional
Mountain Coal Co., 21 Black Lung Rep. (a) The Department proposed intent to define ‘‘widow’’ for purposes
1–59, 1–65/1–66 (1997), aff’d 176 F.3d amending § 725.213 in the initial notice of the Black Lung Benefits Act and SSA
753, 764–765 (4th Cir. 1999). No court of proposed rulemaking to harmonize in the same manner.
has reached a contrary result, and no that regulation with changes to At the time of the 1972 amendments
comment has addressed the substance of § 725.204, which now recognizes the to the BLBA, the SSA defined a
this analysis. Consequently, the independent eligibility of a ‘‘deemed’’ ‘‘widow’’ as an individual who ‘‘is not
Department has no basis for changing spouse to receive benefits married.’’ 42 U.S.C. 403(e)(1)(A).
the regulation. Finally, the Department notwithstanding the existence of a legal Congress had previously amended the
cannot respond to the alleged spouse who is also receiving benefits. 62 SSA definition in 1965 by replacing the
communication between SSA and the FR 3351 (Jan. 22, 1997) The Department phrase ‘‘has not remarried’’ with ‘‘is not
Department because the comment also proposed adding paragraph (c) to married.’’ Pub. L. 89–97, § 308(b)(1), 79
provides no detailed evidence as to the codify the right of a surviving Stat. 286, 376 (1965). The legislative
nature or content of the communication. beneficiary, who loses eligibility history of the amendment indicates that
In any event, an undocumented through some legal impediment, to Congress intended an aged divorced
assertion concerning another agency’s resume eligibility upon the cessation of wife, widow or surviving divorced wife,
intention cannot form the basis for that impediment. The Department did who was not married at the age of
displacing a proper interpretation of the not propose any further changes to the eligibility, to retain ‘‘whatever rights to
pertinent statutes, especially when regulation in its second notice of benefits she has ever had, regardless of
courts have unanimously upheld that proposed rulemaking. 64 FR 54971 (Oct. intervening marriages, which have
interpretation. 8, 1999). ended in death, divorce or annulment.’’
(d) One comment states that the SSA (b) Two comments object to S. Rep. No. 404, 89th Cong., 1st Sess.,
regulations implementing part B of the reentitlement for a surviving spouse reprinted in 1965 U.S.C.C. & A.N. 1943,
BLBA do not permit more than one who loses eligibility, but later 2048. The legislative history therefore
surviving spouse to receive full benefits. reestablishes all the requirements. The underscores the congressional intention
SSA’s program regulations (20 CFR part commenter states in general terms that to permit restoration of SSA eligibility
410) are silent on the entitlement of the provision is contrary to the Social to a widow whose intervening marriage
multiple surviving spouses. In any Security Act (SSA), represents an has terminated. The Social Security
event, the Department has independent unwarranted increase in benefits Administration regulations
authority to issue regulations for part C liability, and should be abandoned. The implementing Part B of the BLBA
of the BLBA, 30 U.S.C. 936(a), and commenter cites no specific authority confirm this view:
§ 725.212 is consistent with the for its argument. The legislative history
An individual is entitled to benefits as a
applicable provisions of the BLBA and of 30 U.S.C. 902(e), the statutory widow, or as a surviving divorced wife, for
the SSA as incorporated. definition of ‘‘widow’’ which § 725.213 each month beginning with the first month
(e) One comment states that the implements, establishes congressional in which all of the conditions of entitlement
current Coal Mine (BLBA) Procedure intent to afford a miner’s widow the * * * are satisfied. If such individual
Manual is consistent with the position same right to resumption of black lung remarries, payment of benefits ends with the
that full monthly benefits cannot be benefits upon termination of a month before the month of remarriage * * *.
paid to each surviving spouse when remarriage as exists for a widow Should the remarriage subsequently end,
more than one spouse qualifies for one payment of benefits may be resumed * * *.
receiving SSA benefits.
deceased miner. This statement is The Black Lung Benefits Act (BLBA), 20 CFR 410.211(a). The Sixth Circuit
simply erroneous. Since at least 1994, as enacted in 1969, defined ‘‘widow’’ to and the Benefits Review Board have also
the Procedure Manual has mean adopted the Department’s position, and
unequivocally provided that ‘‘[w]hen a the wife living with or dependent for support no circuit has taken a contrary view.
surviving spouse and a surviving on the decedent at the time of his death, or Wolf Creek Collieries v. Robinson, 872
divorced spouse both qualify as primary living apart for reasonable cause or because F.2d 1264, 1266 (6th Cir. 1989); Luchino
beneficiaries, each is entitled to full of his desertion, who has not remarried. v. Director, OWCP, 8 Black Lung Rep. 1–
453, 1–456 (1986). The commenter’s this regulation (as well as § 725.204) to the wage earner’s account. 42 U.S.C.
objection must be rejected. reflect statutory changes which now 416(h)(1)(B). The Department imposed a
In promulgating § 725.213, the permit the surviving spouse of a miner, similar limitation in the dependency
Department recognizes that permitting whose marriage is invalid due to a legal criteria when it promulgated 20 CFR
reentitlement of surviving spouses and impediment, to receive benefits 725.204(d)(1). In 1990, Congress
children (§ 725.219) treats these classes notwithstanding the existence of a amended the SSA to remove the
of beneficiaries more generously than legally-married spouse who also is prohibition on ‘‘deemed spouse’’
surviving brothers and sisters of the receiving benefits. Consequently, the entitlement if a legal spouse existed and
deceased miner (§ 725.223). One Department proposed eliminating was receiving benefits. 104 Stat. 1388–
comment notes it is appropriate to end language in 20 CFR 725.214(d) which 278 to 1388–280 (1990). Legislative
benefit entitlement permanently when a required the termination of benefits for history clearly established
brother or sister marries, and implies the surviving spouse whose marriage is Congressional intent to permit both the
the same treatment should be accorded invalid upon the entitlement of the legal ‘‘deemed’’ spouse and the legal spouse
all other classes of beneficiaries and spouse. The Department proposed no to receive concurrent benefits. See H.R.
augmentees, including surviving additional changes to this regulation in Rep. No. 101–964, 1990 U.S.C.C. & A.N.
spouses and children. The Department the second notice of proposed 2649, 2650 (conference report).
believes the difference in treatment is rulemaking. 64 FR 54971 (Oct. 8, 1999). Accordingly, the Department proposed
required by the BLBA. Section 412(a)(5) For purposes of this rule, the similar changes to § 725.214 to delete
states that ‘‘[n]o benefits to a sister or Department has corrected one the regulatory bar to ‘‘deemed’’ spouse
brother shall be payable under this typographical error and made minor entitlement under the BLBA. The
paragraph for any month beginning with grammatical changes. The first and comment does not respond to this
the month in which he or she * * * second notices of proposed rulemaking analysis with any specific reasoning
marries.’’ 30 U.S.C. 922(a)(5). This used the word ‘‘interstate’’ in demonstrating the alleged inconsistency
provision terminates eligibility if a § 725.214(c) to describe a miner’s with the SSA or refuting the
miner’s brother or sister who is personal property. 62 FR 3391 (Jan. 22, Department’s authority to implement
receiving benefits marries. Unlike the 1997); 64 FR 55027 (Oct. 8, 1999). The this change. Finally, increased benefits
statutory definitions of ‘‘widow’’ and correct word is ‘‘intestate,’’ and that liability alone is not a legitimate basis
‘‘child,’’ 30 U.S.C. 902(e), (g), section word has been substituted in the for denying benefits to eligible
412(a)(5) focuses on the occurrence of regulation. In § 725.214(d), the claimants under the BLBA.
an event when ineligibility commences Department has deleted the word ‘‘and’’ (c) No other comments concerning
rather than the individual’s status. The which immediately followed the phrase this section were received, and no other
widow’s or child’s marriage status can ‘‘in a purported marriage between changes have been made in it.
change over time; once the event of them,’’ and added commas, as 20 CFR 725.215
marriage occurs for a brother or sister, appropriate, to clarify the meaning of
‘‘no benefits shall be payable.’’ The (a) In the initial notice of proposed
the provision.
regulations therefore exclude brothers rulemaking, the Department proposed
and sisters from reentitlement once they (b) One comment objects to permitting clarifying the intended operation of
marry. a surviving spouse, whose marriage to § 725.215(g)(3) by changing a reference
(c) One comment states that the deceased miner may be invalid due in that regulation from ‘‘section’’ to
reentitling a surviving spouse after the to certain legal impediments, to ‘‘paragraph.’’ 62 FR 3391 (Jan. 22, 1997).
termination of his or her intervening maintain eligibility despite another The change ensures that the exception
marriage is contrary to the SSA person’s eligibility as the miner’s to the nine-month marriage rule is
regulations implementing part B of the surviving spouse. The commenter states confined to subsection (g) rather than
BLBA. The comment is incorrect. generally that the provision is contrary applicable to the entire regulation. 62
Section 410.211(a) provides that to the Social Security Act (SSA) and FR 3351 (Jan. 22, 1997). The Department
payment of benefits terminates if a imposes an unwarranted increase in proposed no additional changes to this
surviving spouse or divorced wife benefits liability. Neither objection regulation in the second notice of
remarries while receiving benefits; demonstrates any basis for abandoning proposed rulemaking. 64 FR 54971 (Oct.
however, ‘‘[s]hould the remarriage the revision. The Department proposed 8, 1999).
subsequently end, payment of benefits the same change in connection with (b) No comments concerning this
may be resumed * * * .’’ 20 CFR § 725.204, and provided a detailed legal section were received, and no changes
410.211(a). Sections 725.213 and analysis of the reasons supporting the have been made in it.
410.211 are therefore entirely revision in its initial notice of proposed
rulemaking. See 62 FR 3349–50 (Jan. 22, 20 CFR 725.219
consistent.
(d) Two comments support the new 1997). The Black Lung Benefits Act (a) In the initial notice of proposed
subsection (c). (BLBA) incorporates the definition of a rulemaking, the Department proposed
(e) No other comments concerning dependent ‘‘wife’’ used by the SSA, 42 changing § 725.219 to account for a
this section were received, and no U.S.C. 416(h)(1), as incorporated by 30 change in the age of onset of disability
changes have been made in it. U.S.C. 902(a)(2), (e). The SSA recognizes in the Social Security Act (SSA), 42
both ‘‘legal’’ and ‘‘deemed’’ spouses as U.S.C. 402(d)(1)(B), which is
20 CFR 725.214 potentially eligible for benefits on a incorporated into the Black Lung
(a) The Department proposed single wage earner’s record. The Benefits Act’s (BLBA) definition of
amending § 725.214 in the initial notice ‘‘deemed’’ spouse is an individual who ‘‘child,’’ 30 U.S.C. 902(g). 62 FR 3350
of proposed rulemaking to conform the married the wage earner while unaware (Jan. 22, 1997). The Department did not
regulatory criteria for marital that some legal impediment existed to propose any additional changes in the
relationships to intervening changes in the marriage. Before 1990, § 416(h) second notice of proposed rulemaking.
the law since the regulation was issued prohibited a ‘‘deemed spouse’’ from 64 FR 54971 (Oct. 8, 1999). The
in 1978. 62 FR 3349–50 (Jan. 22, 1997). receiving benefits if a ‘‘legal’’ spouse Department, however, did assert in
Specifically, the Department intended existed and was receiving benefits on general terms that marriage is a
permanent bar to future entitlement for as an eligible survivor for the duration originally defined ‘‘dependent’’ to mean
any individual other than a miner’s of the marriage. Sullenberger v. Director, a dependent wife or child within the
surviving spouse or surviving divorced OWCP, Black Lung Rep., BRB No. 99– meaning of 5 U.S.C. 8110; ‘‘wife’’ and
spouse. 64 FR 54983–84 (Oct. 8, 1999). 0449 BLA (March 8, 2000) Upon ‘‘child’’ were not defined separately. 30
Based on this position, the Department cessation of the marital relationship, U.S.C. 902(a) (1969). Section 8110
withdrew a proposed change to however, the child again ‘‘is defined a dependent child as an
§ 725.223 which extended reentitlement unmarried,’’ which complies with the ‘‘unmarried child’’ living with, or
to a miner’s surviving dependent statutory requirement. Assuming all receiving regular contributions from, the
brother or sister if the sibling married other conditions for eligibility are met, employee if the child is under 18 years
while receiving benefits, but the an ‘‘unmarried’’ child retains his or her of age; over that age but incapable of
marriage later ended. status as a ‘‘child’’ under the plain self-support because of a physical or
(b) Two comments recommend language of the statute notwithstanding mental impairment; or a student. 5
adopting a provision (analogous to the occurrence of the marriage. In this U.S.C. 8110(a)(3). In 1972, Congress
§ 725.213(c)) which would allow a regard, the Department disagrees with amended the BLBA to include a new
deceased miner’s surviving disabled the broad statement in Reigh v. Director, definition of ‘‘dependent’’ and separate
child, whose entitlement terminates OWCP, 20 Black Lung Rep. 1–44 (1996), definitions of ‘‘child’’ and ‘‘widow.’’ 30
upon marriage, to regain eligibility that a surviving child of a miner cannot U.S.C. 902(a), (g), (e) (1972). The
when that marriage ends. Formerly, the revive her status as the unmarried legislative history of the 1972
regulations permitted a child whose dependent of her parents upon the amendments simply states that the
entitlement terminated at age 18 to death of her husband. 20 Black Lung statutory definition of ‘‘child’’
apply for reinstatement if the child was Rep. at 1–48. conformed to the SSA definition. S.
a student, younger than age 23, and was The Department’s interpretation of the Rep. No. 743, 92nd Cong., 2nd Sess.
not married. 20 CFR 725.219(c). The plain language of § 402(g) gains support (1972), reprinted in Senate
regulations did not make any provision from Congress’ decision to omit certain Subcommittee on Labor, Committee on
for reentitling a disabled child whose provisions of 42 U.S.C. 402(d) (the Labor and Public Welfare, 94th Cong.,
entitlement is terminated by marriage. Social Security Act) from the BLBA. 1st Sess., History of the Federal Coal
The Department agrees with the Significantly, Congress did not Mine Health and Safety Act of 1969, as
comments that such a provision is incorporate § 402(d)(6), which permits a amended through 1974, Part 2—
appropriate, and therefore has added child to become reentitled to benefits Appendix at 1946, 1974 (1975). That
subsection (d). This provision enables a after turning 18 if the child is a student conformance extended only to the
child whose entitlement terminates under age 22 or disabled, ‘‘provided no specific adoption of SSA eligibility
upon marriage to apply for event specified in paragraph (1)(D) has criteria for age, disability, and student
reinstatement of benefits once the occurred.’’ 42 U.S.C. 402(d)(6). Section requirements, but did not include
marriage terminates. Subsection (d) also 402(d)(1)(D) states that a child’s benefits provisions such as the permanent ban
excuses the child-beneficiary from any terminate ‘‘the month preceding * * * on reentitlement for a child who marries
requirement to reestablish the deceased the month in which such child dies or in § 402(d)(6). Consequently, the
miner’s total disability or death due to marries[.]’’ In McMahon v. Califano, 605 Department is free to depart from the
pneumoconiosis. F.2d 49 (2d Cir. 1979), cert. den. 444 SSA eligibility scheme contained in
The BLBA provides that survivor’s U.S. 847 the Court held that ‘‘the only § 402(d)(6) by permitting reentitlement.
benefits ‘‘shall only be paid to a child reasonable interpretation of [§ 402(d)(6)
and (d)(1)(D)] is that any marriage The effect of marriage on a claimant’s
for so long as he meets the criteria for eligibility has also arisen in connection
the term ‘child’ contained in section occurring subsequent to a child’s initial
entitlement to benefits terminates those with a miner’s surviving spouse. 30
402(g).’’ 30 U.S.C. 922(a)(3). Section U.S.C. 902(e). Since the 1972
402(g) defines ‘‘child’’ to mean a: benefits and prevents re-entitlement in
the future.’’ 605 F.2d at 53; see also amendments, the statutory definition of
child or a stepchild who is—
(1) unmarried; and Downs v. D.C. Police & Firefighters ‘‘widow’’ has limited eligibility to a
(2)(A) under eighteen years of age, or Retirement and Relief Bd., 666 A.2d 860 miner’s surviving spouse or surviving
(B)(i) under a disability as defined in (D.C.C.A. 1995) (holding disabled divorced spouse ‘‘who is not married.’’
section 423(d) of title 42 child’s annuity permanently terminated Legislative history linking the 1972
(ii) which began before the age when child married and later divorced). amendment of 30 U.S.C. 902(e) to
specified in section 402(d)(1)(B)(ii) of Otherwise, the Court concluded, the changes in the parallel SSA definition
title 42, or, in the case of a student, proviso language of § 402(d)(6) would be clearly establish Congress’ intention to
before he ceased to be a student; or superfluous because no other permit reentitlement for a widow who
(C) a student. interpretation would afford it any remarried after the beneficiary’s death
30 U.S.C. 902(g). The literal language of meaning. Congress therefore has and later became unmarried. See
the statute does not preclude a child’s implemented a policy determination generally Wolf Creek Collieries v.
eligibility for all time based upon the that a disabled child receiving SSA Robinson, 872 F.2d 1264, 1266 (6th Cir.
existence of a marriage. Rather, the two benefits should become permanently 1989); Luchino v. Director, OWCP, 8
statutory provisions authorize the ineligible if the child marries, regardless Black Lung Rep. 1–453, 1–456 (1986).
payment of benefits to an eligible child of the subsequent termination of the The statutory definitions of ‘‘widow’’
survivor ‘‘for so long as’’ (s)he ‘‘is marriage. By omitting the incorporation and ‘‘child’’ are alike in that both
unmarried.’’ If a marriage terminates of these provisions into the BLBA require the individual to be unmarried
prior to any period of eligibility, the definition of ‘‘child,’’ however, the as a condition of eligibility. The
child is nevertheless unmarried when Department concludes that Congress did legislative history of the Black Lung
(s)he becomes entitled to benefits. See not intend to adopt the same policy for Benefits Act’s 1972 amendments
Adler v. Peabody Coal Co., Black Lung the BLBA. strongly supports limiting the effect of
Rep., BRB No. 98–1513 BLA (Feb. 4, The legislative history of the an intervening marriage on a surviving
2000). If the child marries while definition of ‘‘child’’ does not support a spouse’s eligibility, and does not
receiving benefits, (s)he cannot continue contrary interpretation. The BLBA contradict affording the same treatment
to a child. In the absence of such widow, child, or parent’’ is eligible for and suggested its removal in the second
contradictory evidence of Congress’ benefits. The current language in 20 notice of proposed rulemaking. 64 FR
intentions, both statutory definitions CFR 725.222(b) follows the statutory 55029 (Oct. 8, 1999). The Department
should be construed alike given the language, and no change in that concluded that the proposed subsection
similarities in their language. subsection is appropriate. The statutory (d) contradicted longstanding agency
Accordingly, a presently unmarried provisions are unequivocal: the policy, which permitted reentitlement
child of a miner is eligible for benefits existence of a surviving spouse or child upon cessation of marriage only in the
notwithstanding any prior marriage. The is sufficient to preclude entitlement for case of a surviving spouse. Because the
marriage merely suspends the child’s other survivors even if the spouse or Department stated it considered a
eligibility for benefits for the duration of child is not receiving benefits. miner’s children permanently barred
the marriage if the child marries during This interpretation is further from reentitlement upon the cessation of
a period of entitlement. Eligibility then supported by another provision of marriage, it declined to afford
resumes upon termination of the section 412. Paragraph (a)(3) states that preferential treatment to the miner’s
marriage, assuming all other conditions ‘‘no entitlement to benefits as a child siblings. In the case of a married sibling
of eligibility can be satisfied. If the shall be established under this who becomes the miner’s dependent,
child’s marriage terminates prior to any paragraph (3) for any month for which the Department concluded that
period of entitlement, the marriage has entitlement to benefits as a widow is eligibility should not be precluded by
no effect upon the child’s eligibility. established under paragraph (2).’’ 30 the existence of the marriage if the
(c) No other comments concerning U.S.C. 922(a)(3). Under this provision, a sibling’s spouse provided no support.
this section were received, and no other child may receive benefits even if a Once a married sibling received support
changes have been made in it. surviving spouse exists unless (or until) or an unmarried dependent married,
the spouse establishes his or her own however, the Department relied on the
20 CFR 725.221 entitlement and supersedes the child as assumption that the married sibling
(a) The Department proposed the primary beneficiary. By using would receive support from the spouse
changing the date of onset of disability different eligibility criteria within the and a sibling whose marriage terminated
in § 725.221 from 18 to 22 years of age same statutory provision, Congress drew would rely on savings or property from
to conform the regulation to the same a clear distinction between the the marriage, etc. 64 FR 54983–84 (Oct.
change in 42 U.S.C. 423(d). 62 FR 3350, circumstances in which the existence of 8, 1999).
3392 (Jan. 22, 1997). The Department an eligible surviving spouse could
proposed no additional changes in the preclude any potential beneficiary with (b) The Department has changed its
second notice of proposed rulemaking. lesser standing from obtaining benefits. position that reentitlement for
64 FR 54791 (Oct. 8, 1999). The child may therefore constitute a beneficiaries after resumption of
(b) One comment supported the primary beneficiary until such time as unmarried status must be confined to
change in the age by which disability the spouse asserts (and proves) his or surviving spouses and surviving
must commence. her own entitlement; at that time, the divorced spouses. See § 725.219(d)
(c) No other comments were received spouse replaces the child as the above, with respect to children.
concerning this section, and no changes beneficiary. The mere existence of a Although the Department recognizes
have been made in it. surviving spouse or child, however, reentitlement for children as well as
does preclude an otherwise eligible spouses, the Department has not
20 CFR 725.222 changed its views about the effect of
parent or sibling from claiming benefits.
(a) The Department proposed The commenter’s recommended change marriage as a permanent bar to
changing the date of onset of disability would violate the distinction between reentitlement for a miner’s brother or
in § 725.222 from 18 to 22 years of age classes of eligible beneficiaries which sister. The BLBA supports this policy.
to conform the regulation to the same Congress has drawn. The Section 412(a)(5) states that ‘‘[n]o
change in 42 U.S.C. 423(d). 62 FR 3350, recommendation must be rejected. benefits to a sister or brother shall be
3392 (Jan. 22, 1997). The Department (c) One comment supported the payable under this paragraph for any
proposed no additional changes in the change in age, from 18 to 22, by which month beginning with the month in
second notice of proposed rulemaking. disability must commence. which he or she * * * marries.’’ 30
64 FR 54791 (Oct. 8, 1999). (d) No other comments concerning U.S.C. 922(a)(5). This provision is
(b) One comment recommends that this section were received, and no unequivocal. Once a brother or sister
subsection (b) allow a deceased miner’s changes have been made in it. who is receiving benefits marries,
parent, brother or sister to claim benefits eligibility terminates. That the
unless the miner’s surviving spouse or 20 CFR 725.223 termination is permanent may be
child has established entitlement. The (a) In the initial notice of proposed inferred from the phrasing of the
Department rejects this change because rulemaking, the Department proposed provision: upon marriage, no benefits
it is inconsistent with the Black Lung revising § 725.223 to adopt the change are payable to the sibling ‘‘for any
Benefits Act. Section 412 of the Act in age limits for disability specified by month’’ starting with the month of the
provides guidelines for the payment of 42 U.S.C. 402(d)(1)(B), as incorporated marriage. Section 412(a)(5) does not
benefits to eligible beneficiaries. 30 by the Black Lung Benefits Act (BLBA), include any qualifying language which
U.S.C. 922. Section 412(a)(5) states, in 30 U.S.C. 922(a)(5). 62 FR 3351, 3393 would suggest that benefits are not
pertinent part, that a dependent parent (Jan. 22, 1997). The Department also payable simply for the duration of the
of a deceased miner ‘‘who is not proposed adding subsection (d) to marriage. Rather, it identifies a point
survived at the time of [the miner’s] permit reentitlement for a miner’s when ineligibility commences, with no
death by a widow or a child’’ is eligible dependent brother or sister whose provision for restoring eligibility. In this
for benefits. 30 U.S.C. 922(a)(5). The eligibility had terminated upon regard, section 412(a)(5) differs from the
same provision also states that a marriage, provided the marriage ended statutory definitions of ‘‘widow’’ and
dependent surviving sibling of the and the individual again fulfilled all the ‘‘child,’’ 30 U.S.C. 902(e), (g). Section
deceased miner ‘‘who is not survived at eligibility criteria. The Department 412(a)(5) links the occurrence of an
the time of [the miner’s] death by a thereafter reconsidered this proposal, event to the termination of eligibility
while the ‘‘widow’’ and ‘‘child’’ 20 CFR 725.308 proposed rulemaking. 64 FR 54984–85
definitions focus on the individual’s Although the Department received (Oct. 8, 1999). The Department deleted
status. The widow’s or child’s marriage comments relevant to this section, the the rebuttable presumption and
status can change; consequently these regulation was not open for comment, substituted a threshold test which
individuals can move in or out of see 62 Fed. Reg. 3341 (Jan. 22, 1997); 64 allowed the miner to litigate his
eligibility. Once a brother or sister Fed. Reg. 54971 (Oct. 8, 1999). It was entitlement to benefits without regard to
marries, ‘‘no benefits shall be payable repromulgated only for the convenience any previous findings by producing new
* * *.’’ The BLBA therefore requires of readers. Accordingly, no changes are evidence that established any of the
that a miner’s brothers and sisters be being made in this section. elements of entitlement previously
excluded from reentitlement upon the resolved against him. The Department
dissolution of marriage. 20 CFR 725.309 explained that this test effectuated the
(c) One comment endorses the (a) In its first notice of proposed Fourth Circuit’s decision in Lisa Lee
withdrawal of proposed subsection (d), rulemaking, the Department proposed Mines v. Director, OWCP, 86 F.3d 1358
and a return to current practice with revising § 725.309 to clarify the rule (4th Cir. 1996), cert. denied, 117 S. Ct.
respect to the marriage of a miner’s governing subsequent claims. 62 FR 763 (1997), by accepting the correctness
brothers and sisters. 3351 (Jan. 22, 1997). A subsequent claim of the earlier denial of benefits. In
is an application filed by the same addition, in response to several
(d) No other comments concerning
individual after final denial of a prior comments, the Department restored a
this section were received, and no
claim. The Department observed that a provision requiring the denial of an
changes have been made in it.
majority of the federal appellate courts additional survivor’s claim, but limited
Subpart C that had considered the issue had the circumstances in which such a
20 CFR 725.306 deferred to the Department’s denial was appropriate. The Department
interpretation of the former regulation proposed the automatic denial of an
(a) In its first notice of proposed governing such claims. That regulation additional survivor’s claim in cases in
rulemaking, the Department proposed required a claimant to establish that he which the denial of the previous claim
revising § 725.306(a)(3) by cross- had suffered a material change in was based solely on a finding or
referencing § 725.522 so that an condition since the denial of his earlier findings that were not subject to change.
unrelated revision of the term ‘‘benefits’’ claim in order to escape the denial of For example, if the earlier claim was
in section 725.101(a)(6) would not the later claim on the grounds of the denied solely because the miner did not
adversely affect a claimant’s ability to prior denial. 20 CFR 725.309 (1999). die due to pneumoconiosis, the
withdraw his claim for benefits. The The Department’s interpretation of that regulation would require the denial of
Department specifically noted its rule allowed miners to establish the any additional claim as well. The
intention not to require reimbursement necessary material change in condition Department responded to other
of the amount spent on the claimant’s by introducing new evidence that comments, rejecting the suggestion that
complete pulmonary evaluation as a demonstrated a change in one of the the revised regulation was inconsistent
condition for withdrawal of a claim, necessary elements of entitlement, such with § 22 of the Longshore and Harbor
notwithstanding its proposal to include as the existence of pneumoconiosis. The Workers’ Compensation Act, 33 U.S.C.
the complete pulmonary evaluation Department proposed to codify its 922, as incorporated by 30 U.S.C. 932(a),
within the definition of ‘‘benefits.’’ 62 interpretation by creating a rebuttable and § 413(d) of the Black Lung Benefits
FR 3351 (Jan. 22, 1997). The Department presumption that the miner’s condition Act, 30 U.S.C. 923(d). Finally, the
did not discuss section 725.306 in its had changed if new evidence Department discussed why findings
second notice of proposed rulemaking. established one of the elements of favorable to the claimant that were
See list of changes in the Department’s entitlement previously resolved against made in the previous denial of benefits
second proposal, 64 FR 54971 (Oct. 8, the miner. An operator could rebut the should not be given preclusive effect,
1999). presumption by establishing that the and clarified the date from which
(b) Several comments opposed the earlier denial was erroneous, i.e., that benefits were payable in the event an
revised definition of ‘‘benefits,’’ the new evidence submitted by the additional claim was awarded.
§ 725.101(a)(6), because it includes the claimant did not demonstrate a change (b) Two comments object to the
cost of the miner’s complete pulmonary in his condition but simply that the Department’s rule allowing subsequent
examination for which the Department earlier determination was mistaken. If claims on the basis that the record lacks
is liable in the absence of a final award the presumption was not rebutted, the adequate justification of the latency and
of benefits. The commenters believe the factfinder would weigh all of the progressivity of pneumoconiosis. In its
revised definition will impose liability evidence on the remaining elements of first notice of proposed rulemaking, the
on the miner under § 725.306 for entitlement to determine whether the Department proposed revising the
repayment of the cost of the claimant was entitled to benefits. The definition of the term
examination if he should decide to original proposal also provided that the ‘‘pneumoconiosis’’ in § 718.201 to,
withdraw his claim. For the reasons remaining issues of entitlement were among other things, explicitly recognize
stated in the Department’s initial notice subject to de novo adjudication unless that it referred to a progressive disease.
of proposed rulemaking, 62 FR 3351 the parties had stipulated to, or waived 62 FR 3343–44 (Jan. 22, 1997). Several
(Jan. 22, 1997), and in response to their right to contest, those issues in the commenters argued that the
comments received in connection with earlier proceeding. Thus, once the Department’s proposed definition was
§ 725.101(a)(6), 64 FR 54982 (Oct. 8, claimant established a change in his scientifically unsound, and presented
1999), the Department has not made condition, no parties to the claim were testimony from a panel of physicians
reimbursement of the examination entitled to rely on findings made in with expertise in pulmonary medicine
‘‘benefit’’ a price for withdrawing a connection with the denial of the prior at the Department’s July 22, 1997
claim. No other comments were claim. hearing in Washington, D.C. The
received concerning this section, and no The Department substantially revised Department also received comments and
changes have been made in it. its proposal in its second notice of testimony in support of its proposal.
The commenters opposed to the Rulemaking Record Exhibit or, when Silicosis may be a progressive disease in a
Department’s proposal also objected to appropriate, the Federal Register, where small percentage of miners after coal mine
the Department’s failure to consult the that source appears. This second dust exposure ends. The literature does not
National Institute of Occupational citation is not an exhaustive list; thus, support the statement that coal workers’
pneumoconiosis is progressive absent further
Safety and Health (NIOSH). Although each source may appear at additional dust exposure. There are no studies that
NIOSH had commented favorably on the points in the Rulemaking Record. In show progressive impairment in miners who
Department’s proposal, and specifically support of their attack, the commenters have left the mines. The studies do not show
on the provision recognizing the have submitted an analysis of the any progression in industrial bronchitis after
progressive nature of pneumoconiosis, available medical literature from Dr. a miner leaves the mines. In fact, the studies
the Department decided, in light of the Gregory Fino, a Board-certified do suggest that the minor reduction in the
divergent comments it had received physician in Internal Medicine and FEV1 [Forced Expiratory Volume in one
from medical professionals, to seek Pulmonary Disease, and Dr. Barbara second] as a result of industrial bronchitis
additional guidance from NIOSH. The Bahl, who has a doctorate in nursing occurs in the first few years of mining and
Department transmitted a copy of all of then the effect over the remaining years in
and biostatistics. Drs. Fino and Bahl the mines is negligible and may even recover.
the testimony and commentary it had analyze nine articles and textbooks
received to Dr. Linda Rosenstock, the dealing with latency, which they define Rulemaking Record, Exhibit 89–37,
Director of NIOSH, and asked NIOSH to parenthetically as ‘‘0/0 or 0/1 to 1/0+.’’ Appendix C at 30–31. In evaluating the
determine, in light of the then existing The analysis thus focuses on evidence medical evidence contained in the
record, whether NIOSH continued to that would show that a miner whose rulemaking record, the Department is
support the Department’s proposal. chest X-rays are classified by a mindful that Congress provided an
NIOSH responded, in a December 7, radiologist as ‘‘negative’’ (0/0 or 0/1 exceptionally broad definition of the
1998 letter from Dr. Paul Schulte, the under the ILO–UC classification term ‘‘pneumoconiosis:’’ ‘‘a chronic
Director of NIOSH’s Education and scheme, see 20 CFR 718.102(b)), after he dust disease of the lung and its
Information Division, that ‘‘[t]he leaves the mine can develop a disease sequelae, including respiratory and
unfavorable comments received by DOL that will result in chest X-rays that are pulmonary impairments, arising out of
do not alter our previous position: classified as ‘‘positive.’’ Under the ILO– coal mine employment.’’ 30 U.S.C.
NIOSH scientific analysis supports the UC scheme, an X-ray classified as 902(b). The regulatory definitions
proposed definitional changes.’’ Dr. category 1, 2, or 3, ranging from 1/0 to promulgated by the Department over the
Schulte provided additional medical 3/3, is considered positive for simple last 25 years have reflected the scope of
references to support NIOSH’s pneumoconiosis. An X-ray classified as this provision.
conclusion. The Department notified A, B, or C is considered positive for In 1978, the Department promulgated
parties of this additional evidence in its complicated pneumoconiosis, also its interim criteria, 20 CFR Part 727.
second notice of proposed rulemaking. known as progressive massive fibrosis Those criteria included a definition of
See 64 FR 54978–79 (Oct. 8, 1999). or massive pulmonary fibrosis. 20 CFR
One commenter accuses the ‘‘pneumoconiosis’’ at 20 CFR 727.202.
718.102(b), 718.304(a) (1999). They After repeating the statutory definition,
Department of obtaining assistance from conclude that ‘‘the medical literature
NIOSH’s information officer rather than the regulation further provided that
provides no evidence that coal workers’ ‘‘[t]his definition includes, but is not
its scientific staff. The Department does pneumoconiosis or silicosis in
not agree that the identity or title of the limited to, coal workers’
coalminers is a latent disease. There is pneumoconiosis, anthracosilicosis,
agency official through whom NIOSH
also no evidence to show that the anthracosis[,]anthrosilicosis, massive
chose to communicate its response to
development of pulmonary impairment pulmonary fibrosis, progressive massive
the Department’s inquiry renders that
is latent.’’ Rulemaking Record, Exhibit, fibrosis[,] silicosis, or silicotuberculosis
response invalid. The Department’s
89–37, Appendix C at 29. arising out of coal mine employment.’’
request was sent to the Director of Drs. Fino and Bahl also analyzed five
NIOSH, and observed that the resolution 43 FR 36825 (Aug. 18, 1978). The
articles dealing with progression, which Department promulgated its permanent
of the issues related to the definition of they define parenthetically as ‘‘1/0 to
the term ‘‘pneumoconiosis’’ required criteria, 20 CFR Part 718, in 1980.
1/0.+’’ Their analysis of progression Section 718.201, entitled ‘‘Definition of
scientific and medical expertise. Dr.
thus focuses on whether individuals pneumoconiosis,’’ contained a
Schulte’s letter, transmitted on behalf of
whose chest X-rays are initially read as definition that was identical to that of
NIOSH in response to the Department’s
1/0, the lowest positive classification in § 727.202. 45 FR 13685 (Feb. 29, 1980).
request, specifically refers to ‘‘NIOSH
the ILO–UC scheme, may have later The federal courts of appeals have long
scientific analysis.’’ Accordingly, the
chest X-rays classified greater than 1/0. recognized that the Act compensates not
Department rejects the commenter’s
They observe that ‘‘there are authors merely coal workers’ pneumoconiosis,
inferences that its consultation with
who have identified progression of as that term is used by the medical
NIOSH was less than complete, and that
pneumoconiosis in coal miners,’’ but community, but ‘‘legal’’
the Department sought to exclude the
that other authors have reached the pneumoconiosis. See, e.g., Peabody Coal
agency’s scientific staff. To the extent
that the statute imposes an obligation to contrary conclusion. They conclude as Co. v. Lowis, 708 F.2d 266, 268 n.4 (7th
consult with NIOSH on the definition of follows: Cir. 1983) (‘‘the ‘legal’ definition of
‘‘pneumoconiosis,’’ the Department has Why do some miners progress within the pneumoconiosis contained in the above-
fully complied with that obligation. ILO scale of simple pneumoconiosis and quoted regulation [§ 727.202] includes
The commenters opposed to the others do not? The answer lies in the proper not only ‘true or clinical’
Department’s proposal also attack the definition of pneumoconiosis. Careful pneumoconiosis but also other
attention must be made to differentiate respiratory or pulmonary diseases
scientific basis of the conclusion that
simple coal workers’ pneumoconiosis and
the Department and NIOSH have drawn silicosis. The miners who have been
arising from dust exposure in coal mine
from the evidence of record. In the described to progress over time after employment’’); Gulf & Western
following discussion, where a scientific exposure ceases are miners who have likely Industries v. Ling, 176 F.3d 226, 231
article or treatise is cited, the contracted silicosis, not simple coal workers’ (4th Cir. 1999) (‘‘[the regulations detail
Department has also cited to a pneumoconiosis. * * * the breadth of what is frequently called
‘legal’ pneumoconiosis * * *’’); see also and 19 PMF progressors) and 3.4b broad statutory definition, includes
the Department’s preamble to § 718.201. (Median profusion score for 161 CWP silicosis within the list of conditions
The Department has reviewed all of non-progressors) compare X-rays taken that must be considered
the medical literature referenced in the within two years of the dates on which pneumoconiosis. In addition, inclusion
record, and does not agree that it lacks the 200 miners left the coal mining of silicosis in the definition of
support for the proposition that industry with X-rays taken 10 years pneumoconiosis is based on practical as
pneumoconiosis is a latent, progressive later. They demonstrate that of 138 ex- well as legal considerations. It is
disease. Contrary to Dr. Fino’s miners whose early X-rays were read as difficult to separate the effects of coal
conclusions, a number of medical 0/0 or 0/1, 11 had later X-rays read as and silica in the occupational setting.
references document the latent, positive for either simple or Coal contains a number of non-organic
progressive nature of the disease. For complicated pneumoconiosis. This materials, including quartz, and the
example, Seaton, in ‘‘Coal Workers’ proportion, 7.97%, has epidemiologic percentage of quartz is greater in high
Pneumoconiosis,’’ in Morgan, WKC and significance, and supports the authors’ rank coals. Seaton, ‘‘Coal Workers’
Seaton A, eds., Occupational Lung conclusion that ‘‘[t]he results have Pneumoconiosis,’’ in Morgan, WKC and
Diseases (WB Saunders Co., 3d ed. demonstrated that progression does Seaton A, eds., Occupational Lung
1995) 389, see also Rulemaking Record, occur after cessation of exposure.’’ Diseases (WB Saunders Co., 3d ed.
Exhibit 89–37, Appendix C at 34, 42, Donnan et al. at 23. 1995) 389, see also Rulemaking Record,
contains the observation that ‘‘PMF In light of this evidence, the Exhibit 89–37, Appendix C at 34, 42.
[Progressive massive fibrosis] may occur Department is not persuaded by the Seaton and colleagues reported a cohort
after dust exposure has ceased, even reliance Dr. Fino and Dr. Bahl place on of miners who had a rapid progression
when the miner has left the industry the conclusion of Drs. Merchant, Taylor
of radiologic findings resembling
with no apparent simple and Hodous in ‘‘Occupational
silicosis, despite a relatively low total
pneumoconiosis, although this will only Respiratory Diseases’’ (National Institute
coal dust exposure. Seaton A, Dick JA,
occur if the worker has had substantial for Occupational Safety and Health,
Dodgson J, Jacobsen M., ‘‘Quartz and
dust exposure’’). Similarly, National 1986), see also Rulemaking Record,
pneumoconiosis in coal miners,’’ Lancet
Institute for Occupational Safety and Exhibit 89–37, Appendix C at 26. Dr.
2:1272 (1981), see also Rulemaking
Health, Criteria for a Recommended Fino and Dr. Bahl quote the textbook’s
Record, Exhibit 2–1 at 50. Analysis
Standard: Occupational Exposure to statement that ‘‘the chance of
revealed that the percentage of quartz in
Respirable Coal Mine Dust, § 4.2.1.3.1, radiological progression over ten years
Rulemaking Record, Exhibit 2–1 at 48, at a mean dust concentration of 2 the mixed coal mine dust was
summarized an article (Maclaren WM, milligrams per cubic meter is essentially significantly higher in these affected
Soutar CA, ‘‘Progressive massive fibrosis zero for a miner with x-ray category 0/ miners than in matched controls. They
and simple pneumoconiosis in ex- 0.’’ This textbook was published by the concluded that quartz exposure was an
miners,’’ Br. J. Ind. Med. 42:734–740 Division of Respiratory Disease Studies important factor contributing to
(1985)) as follows: ‘‘Among 1,902 ex- of the Appalachian Laboratory for pneumoconiosis in some miners and
miners who had not developed PMF Occupational Safety and Health, a that disease in such miners was more
within 4 years of leaving mining, 172 component of the National Institute of aggressive. Moreover, miners who drill
(9%) developed PMF after leaving Occupational Safety and Health, more into hard rock, such as those who bore
mining. Of those 172 miners with PMF, than 10 years prior to the Donnan study. shafts or work as roof bolters, are
32% had no evidence of simple CWP In light of NIOSH’s conclusion that exposed to higher concentrations of
(category 0) when they left mining.’’ In scientific analysis supports the quartz and are known to be at higher
that article, in fact, Maclaren and Soutar Department’s regulations, the risk for developing silicosis. Seaton,
reported both small opacities (evidence Department does not agree that the ‘‘Coal Workers’ Pneumoconiosis,’’ in
of simple pneumoconiosis) and large statement by Merchant et al. requires Morgan, WKC and Seaton A, eds.,
opacities (evidence of complicated the Department to revise its regulatory Occupational Lung Diseases (WB
pneumoconiosis) in ex-miners who did approach. Saunders Co., 3d ed. 1995) 389, see also
not show evidence of coal workers’ Similarly, the Department is not Rulemaking Record, Exhibit 89–37,
pneumoconiosis after the miners left the persuaded by Dr. Fino and Dr. Bahl’s Appendix C at 34, 42. Based on these
industry. attempt to dismiss the effect of silica on observations, it is reasonable to
Moreover, contrary to the conclusion coal miners, and therefore to discount conclude that there is a clear risk of
of Dr. Fino and Dr. Bahl, the study the applicability of studies developing pneumoconiosis with
conducted by Donnan et al. did find demonstrating the latency and characteristics of silicosis in coal miners
significant evidence of latency. Donnan progressivity of silicosis. It remains the exposed to dusts with high quartz
PT, Miller BG, Scarisbrick DA, Seaton Department’s position that content. Accordingly, the Department
A, Wightman AJA, Soutar CA, pneumoconiosis, as defined in the believes that it may properly rely on
‘‘Progression of simple pneumoconiosis statute, 30 U.S.C. 902(b), is both latent studies of silicosis in promulgating
in ex-coalminers after cessation of and progressive. The statutory regulations governing the
exposure to coalmine dust,’’ IOM report definition includes both simple coal compensability of pneumoconiosis as
TM/97/07 (Institute of Occupational workers’ pneumoconiosis and silicosis. that term has been defined by Congress.
Medicine, December 1997) 1–67, see Although they acknowledge studies See also Beckett WS, ‘‘Occupational
also Rulemaking Record, Exhibit 89–37, showing that silicosis is a latent, Respiratory Diseases,’’ The New
Appendix C at 26, 29. Dr. Fino and Dr. progressive disease, Dr. Fino and Dr. England Journal of Medicine, 342:406–
Bahl write that ‘‘only one out of 200 Bahl argue that coal workers’ 13 (Feb. 12, 2000) (citing a study of
miners [in the study] was found to pneumoconiosis must be distinguished silicosis to support the conclusion that
progress from a negative to a positive from silicosis. The Black Lung Benefits ‘‘[w]ith many substances (including coal
film.’’ That conclusion, however, was Act, however, does not permit such a and silica dust), the disease may
not the conclusion of the study’s distinction. As discussed above, the progress for decades after the exposure
authors. Their tables 3.4a (Median regulatory definition of the term has ceased.’’). (Dr. Beckett’s review
profusion score for 14 CWP progressors ‘‘pneumoconiosis,’’ implementing the article did not appear until after the
rulemaking record had closed; it is cited sufficient to justify the Department’s 278, 279 (4th Cir. 1977)
only as additional evidence confirming regulation governing subsequent claims. (‘‘pneumoconiosis is a slow, progressive
the Department’s previous use of studies Moreover, neither the regulation disease often difficult to diagnose at
involving silicosis). permitting subsequent claims nor the early stages’’); Crace v. Kentland-
Finally, there is also evidence that Department’s explicit recognition of the Elkhorn Coal Corp., 109 F.3d 1163, 1167
lung function can continue to progressive nature of the disease (6th Cir. 1997) (‘‘because of the
deteriorate after a miner leaves the coal represents a departure from the progressive nature of pneumoconiosis,
mining industry. The authors of Dimich- Department’s prior positions. The more recent evidence is often accorded
Ward H and Bates DV, ‘‘Reanalysis of a Department’s original promulgation of a more weight’’); Consolidation Coal Co.
longitudinal study of pulmonary regulation governing subsequent claims v. McMahon, 77 F.3d 898, 906 (6th Cir.
function in coal miners in Lorraine, in 1978 was based on the progressive 1996) (recognizing ‘‘the progressive
France,’’ Am J Ind Med, 25:613–623 nature of the disease. 43 FR 36785 (Aug. nature of pneumoconiosis’’);
(1994), see also 62 FR 3344 (Jan. 22, 18, 1978). The federal courts of appeals Sharondale Corp. v. Ross, 42 F.3d 993,
1997), demonstrated a decline of have also recognized that 997 (6th Cir. 1994) (‘‘the material
pulmonary function in both smoking pneumoconiosis is a progressive change provision [provides] relief from
and non-smoking coal miners that disease. Plesh v. Director, OWCP, 71 the principles of finality for those
continues over time even after F.3d 103, 108 (3d Cir. 1995) miners whose conditions have
retirement from mining. Given this (‘‘pneumoconiosis is progressive and deteriorated due to the progressive
evidence of progression, it is clear that incurable’’); Labelle Processing Co. v. nature of black lung disease’’); Johnson
a miner who may be asymptomatic and Swarrow, 72 F.3d 308, 314–315 (3d Cir. v. Peabody Coal Co., 26 F.3d 618, 620
without significant impairment at
1995) (‘‘Congress, in enacting the BLBA, (6th Cir. 1994) (‘‘Pneumoconiosis is a
retirement can develop a significant
recognized the perniciously progressive progressive debilitating disease.’’);
pulmonary impairment after a latent
nature of the disease * * *. Moreover, Woodward v. Director, OWCP, 991 F.2d
period. Because the legal definition of
courts have long acknowledged that 314, 320 (6th Cir. 1993)
‘‘pneumoconiosis’’ includes
pneumoconiosis is a progressive and (‘‘Pneumoconiosis is a progressive and
impairments that arise from coal mine
irreversible disease.’’); Kowalchick v. degenerative disease.’’); Campbell v.
employment, regardless of whether a
Director, OWCP, 893 F.2d 615, 621 (3d Consolidation Coal Co., 811 F.2d 302,
miner shows X-ray evidence of
Cir. 1990) (‘‘That the three earliest x- 303 (6th Cir. 1987) (recognizing ‘‘the
pneumoconiosis, this evidence of
deterioration of lung function among rays of record * * * were read negative progressive nature of pneumoconiosis’’);
miners, including miners who did not is not inconsistent with the progressive Back v. Director, OWCP, 796 F.2d 169,
smoke, is particularly significant. nature of pneumoconiosis.’’); Shendock 172 (6th Cir. 1986) (‘‘Because of the
The commenters also cite the 1985 v. Director, OWCP, 893 F.2d 1458, 1467 progressive nature of pneumoconiosis,
report of the Surgeon General, U.S. n.10 (3d Cir. 1990) (‘‘it is well earlier negative and later positive X-rays
Department of Health and Human recognized that pneumoconiosis is a of the same individual are not
Services, The Health Consequences of progressive disease whose symptoms necessarily in conflict.’’); Orange v.
Smoking: Cancer and Chronic Lung increase in severity over time’’); Island Creek Coal Co., 786 F.2d 724, 727
Disease in the Workplace (1985), see Bethenergy Mines Inc. v. Director, (6th Cir. 1986) (‘‘pneumoconiosis * * *
also Rulemaking Record, Exhibit 89–21, OWCP, 854 F.2d 632, 636 (3d Cir. 1988) is a progressive disease’’); Director,
Appendix 11, in support of their (‘‘Due to the progressive nature of OWCP v. Bivens, 757 F.2d 781, 788 (6th
argument. Of the seven items listed in pneumoconiosis, a coal mine operator is Cir. 1985) (‘‘the Black Lung Benefits Act
the ‘‘Summary and Conclusions’’ less likely to know the details provides compensation for disability
section of Chapter Seven, ‘‘Respiratory underlying a particular claim than an based on an invisible and progressive
Disease in Coal Miners,’’ none addresses employer is in the typical case arising disease’’); Collins v. Sec’y of HHS, 734
the latency or progressivity of under the LHWCA.’’); Zielinski v. F.2d 1177, 1180 (6th Cir. 1984)
pneumoconiosis. In addition, the Califano, 580 F.2d 103, 107 (3d Cir. (‘‘Medically we note that
Surgeon General’s report, which focused 1978) (‘‘pneumoconiosis and related pneumoconiosis is a slow, progressive
on the health consequences of smoking, lung diseases progress slowly’’); Eastern disease. Its characteristics and
did not review many of the articles on Associated Coal Corp. v. Director, symptoms often do not manifest
which the Department’s conclusion is OWCP, ll F.3d ll, No. 99–1312, themselves in a way that promote [sic]
based. Because the overwhelming slip op. at pp. 11–12 (4th Cir. July 12, immediate detection. In some cases the
majority of the references cited by the 2000) (observing ‘‘the assumption of disease may take years before it is
Department in its first and second progressivity that underlies much of the readily detectable.’’); Smith v. Califano,
notices of proposed rulemaking, see 62 statutory regime’’); Lane Hollow Coal 682 F.2d 583, 587 (6th Cir. 1982) (‘‘coal
FR 3343–44 (Jan. 22, 1997); 64 FR Co. v. Lockhart, 137 F.3d 799, 803 (4th workers’’ pneumoconiosis * * * is a
54978–79 (Oct. 8, 1999), as well as the Cir. 1998) (‘‘pneumoconiosis is progressive disease’’); Hill v. Califano,
references discussed above, were progressive and irreversible’’); Adkins v. 592 F.2d 341, 345 (6th Cir. 1979)
prepared after 1985, this is not Director, OWCP, 958 F.2d 49, 51 (4th (‘‘pneumoconiosis is a slowly
surprising. Accordingly, the Department Cir. 1992) (‘‘pneumoconiosis is a progressive disease’’); Morris v.
does not believe that anything in the progressive disease’’); Greer v. Director, Mathews, 557 F.2d 563, 568 (6th Cir.
Surgeon General’s report requires the OWCP, 940 F.2d 88, 90 (4th Cir. 1991) 1977) (recognizing Congressional
Department to ignore the conclusions (pneumoconiosis is ‘‘a slowly- finding that ‘‘pneumoconiosis [is] a
that it has drawn from the studies and progressing condition’’); Hamrick v. progressive chronic dust disease of the
articles in the rulemaking record. Schweiker, 679 F.2d 1078, 1081 (4th Cir. lung’’); Begley v. Mathews, 544 F.2d
Contrary to the commenters’ 1982) (‘‘pneumoconiosis is a progressive 1345, 1354 (6th Cir. 1976) (describing
argument, then, the record does contain disease’’); Prater v. Harris, 620 F.2d pneumoconiosis as ‘‘a disease known to
abundant evidence demonstrating that 1074, 1082 (4th Cir. 1980) be of a slowly progressive character’’);
pneumoconiosis is a latent, progressive (‘‘pneumoconiosis is a progressive Amax Coal Co. v. Franklin, 957 F.2d
disease. That evidence is certainly disease’’); Barnes v. Mathews, 562 F.2d 355, 359 (7th Cir. 1992) (‘‘Black lung
disease, at least when broadly defined, disease’’); but see Zeigler Coal Co. v. files his first claim before he is truly
is a progressive disease * * *.’’); Dotson Lemon, 23 F.3d 1235, 1238 (7th Cir. totally disabled, but later becomes
v. Peabody Coal Co., 846 F.2d 1134, 1994) (chastising an administrative law totally disabled, must be afforded an
1139 (7th Cir. 1988) (‘‘Pneumoconiosis judge for assuming that pneumoconiosis opportunity to establish that his
is a progressive disease* * *’’.); Russell is progressive without any evidence in condition is related to his coal mine
v. Director, OWCP, 829 F.2d 615, 616 the record to support the assumption). employment. Under § 718.204, the
(7th Cir. 1987) (‘‘Coal miners’’ Although one commenter asserts that miner continues to bear the burden of
pneumoconiosis (black lung) is a the regulation creates an irrebuttable proving this element of his entitlement.
progressive, debilitating disease.’’); presumption that each miner’s To the extent that a coal mine operator
Amax Coal Co. v. Director, OWCP, 801 condition is progressive, it actually does produces medical evidence
F.2d 958, 964 (7th Cir. 1986) no such thing. As revised, § 725.309 demonstrating that the miner’s total
(recognizing ‘‘the difficulty of clinically simply effectuates the current one- disability is due solely to cigarette
diagnosing the progressive disease’’); element test adopted by a substantial smoking, that evidence would also be
Consolidation Coal Co. v. Chubb, 741 number of federal appellate courts and relevant to the inquiry under § 718.204.
F.2d 968, 973 (7th Cir. 1984) (‘‘In light most recently the Benefits Review (d) A number of comments argue that
of the progressive nature of Board, Allen v. Mead Corp., ll Black § 725.309 violates accepted principles of
pneumoconiosis, [the ALJ’s] according Lung Rep. (MB) ll, BRB No. 99–0474 claim preclusion and issue preclusion,
greater weight to the recent x-ray was BLA (May 31, 2000). The one-element particularly with respect to the
not irrational.’’); Lovilia Coal Co. v. test allows a miner who demonstrates a treatment of additional claims filed by
material change in one of the conditions miners’ survivors. The Department
Harvey, 109 F.3d 445, 450 (8th Cir.
of entitlement previously decided disagrees. In its initial proposal, the
1997) (recognizing progressive nature of
against him to avoid an automatic bar Department explained that its additional
pneumoconiosis); Robinson v. Missouri
on establishing his current entitlement filing rules gave full effect to the
Mining Co., 955 F.2d 1181, 1184 (8th
to benefits. To the extent that the principles of claim preclusion but that
Cir. 1992) (‘‘pneumoconiosis is a
commenter would require each miner to the applicability of these principles was
progressive disease’’); Campbell v.
submit scientific evidence establishing limited in two important respects: (1)
Director, OWCP, 846 F.2d 502, 509 (8th
that the change in his specific condition The liberal reopening provision created
Cir. 1988) (‘‘pneumoconiosis is a
represents latent, progressive by Congress under § 22 of the Longshore
progressive disease’’); Newman v. pneumoconiosis, the Department and Harbor Workers’ Compensation Act,
Director, OWCP, 745 F.2d 1162, 1165 disagrees and has therefore not imposed 33 U.S.C. 922, incorporated into the
(8th Cir. 1984) (‘‘pneumoconiosis is a such an evidentiary burden on Black Lung Benefits Act by 30 U.S.C.
progressive disease’’); Padavich v. claimants. Rather, the miner continues 932(a); and (2) the recognition that an
Mathews, 561 F.2d 142, 146 (8th Cir. to bear the burden of establishing all of individual’s eligibility for workers’
1977) (‘‘Pneumoconiosis is a progressive the statutory elements of entitlement, compensation benefits is not fixed at a
illness* * *.’’); Humphreville v. except to the extent that he is aided by single time, but, especially with respect
Mathews, 560 F.2d 347, 349 (8th Cir. two statutory presumptions, 30 U.S.C. to occupational diseases, may be subject
1977) (‘‘pneumoconiosis is a progressive 921(c)(1) and (c)(3). The revised to relitigation even if the worker’s first
disease’’); Wyoming Fuel Co. v. Director, regulation continues to afford coal mine claim is denied. 62 FR 3352 (Jan. 22,
OWCP, 90 F.3d 1502, 1507 (10th Cir. operators an opportunity to introduce 1997). Under these principles, and
1996) (recognizing ‘‘the nature of contrary evidence weighing against subject to the limitation that the party
pneumoconiosis as a disease that entitlement. must have a full and fair opportunity to
develops progressively and is difficult (c) One comment submitted in litigate its position, Kremer v. Chemical
to diagnose’’); Lukman v. Director, connection with the first notice of Constr. Corp., 456 U.S. 461, 481 n. 22
OWCP, 896 F.2d 1248, 1253 (10th Cir. proposed rulemaking, and cited by (1982), a final adjudication of the merits
1990) (recognizing real purpose of another comment submitted in of a cause of action will preclude the
duplicate claims regulation is to provide connection with the second notice of parties from relitigating issues that were
‘‘miners with progressively worsening proposed rulemaking, suggests that the or could have been raised in the first
health full and equal access to black Department’s proposed revision would proceeding. Rivet v. Regions Bank of
lung benefits.’’); Ohler v. Sec’y of HEW, compensate the 15 to 20 percent of Louisiana, 522 U.S. 470, 476 (1998),
583 F.2d 501, 506 (10th Cir. 1978) cigarette smokers who develop chronic citing Federated Department Stores, Inc.
(‘‘pneumoconiosis is a progressive airway obstruction if they spent 10 years v. Moitie, 452 U.S. 394, 398 (1981).
disease, as is emphysema’’); Paluso v. or more in the coal mining industry. Section 725.309 applies these
Mathews, 573 F.2d 4, 10 (10th Cir. 1978) The Department does not agree that the principles to the adjudication of black
(‘‘It is well-established medically that possibility that miners will suffer lung benefits claims. For example, if the
pneumoconiosis is a progressive disease reduced pulmonary function as a result sole basis for denying a miner’s claim is
which frequently defies diagnosis.’’); of cigarette smoking justifies the a finding on an issue that is not subject
Alabama Dry Dock and Shipbuilding automatic denial of additional claims by to change, and that the miner had an
Corp. v. Sowell, 933 F.2d 1561, 1566 miners under § 725.309. In addition, the opportunity to fully and fairly litigate, a
(11th Cir. 1991) (black lung ‘‘can lie previously cited study by Dimich-Ward subsequent claim by the miner must
essentially dormant in the body for and Bates documented the progressive also be denied. Thus, where the first
many years after an employee has left decrement in lung function among both claim was denied solely on the grounds
his employment before progressing to miners who smoked and those who did that the applicant did not work as a
the point where [it] is disabling’’); Curse not. Dimich-Ward H, Bates DV, miner, and he does not allege that he
v. Director, OWCP, 843 F.2d 456, 457 ‘‘Reanalysis of a longitudinal study of engaged in any additional coal mine
(11th Cir. 1988) (recognizing black lung pulmonary function in coal miners in employment since he filed that
disease develops slowly and Lorraine, France,’’ Am J Ind Med, application, his second claim must be
progressively); Doss v. Califano, 598 25:613–623 (1994), see also 62 FR 3344 denied as well. Where the issue is
F.2d 419, 421 (11th Cir. 1979) (Jan. 22, 1997). The Department subject to change, however, neither
(‘‘pneumoconiosis is a progressive accordingly believes that a miner who claim preclusion principles nor
§ 725.309 bars the litigation of the defendant now seeks to bar. Kremer, 456 proposal, its ‘‘one-element’’ rule,
miner’s additional claim. For example, U.S. at 481 n. 22. For example, this allowing a miner to avoid claim
where the original denial was based on issue would arise if the administrative preclusion by establishing one of the
the miner’s failure to establish that his law judge adjudicating the survivor’s conditions of entitlement decided
respiratory impairment was totally first claim found that the survivor’s against him in the previous
disabling, and new evidence establishes remarriage barred her entitlement, and adjudication, derives from a series of
that that condition has worsened, the alternatively concluded that the miner appellate decisions adopting the
miner should not be barred from did not die due to pneumoconiosis. In Department’s interpretation of the
prosecuting a second application for that case, the survivor could not have former regulation. See 62 FR 3351 (Jan.
benefits. overturned the adverse finding on the 22, 1997); see also 64 FR 54984 (Oct. 8,
The regulation gives similar treatment cause of the miner’s death because she 1999). The provision requiring the
to cases involving miners’ survivors. would not have been able to avoid the denial of survivors’ claims is also
Where a previous survivor’s claim was prohibition on the eligibility of substantially the same as the former
denied solely on the basis that the remarried widows. Accordingly, she rule. Like the revised version, the
survivor did not prove that the miner could not be said to have had a full and former rule was subject to waiver just as
died due to pneumoconiosis, an element fair opportunity to litigate the issue of any other affirmative defense would be
not subject to change, the survivor may the cause of the miner’s death. In these under common law. See Clark v.
be barred from litigating another claim circumstances, neither ordinary Director, OWCP, 838 F.2d 197, 200 (6th
filed more than one year after the denial principles of claims preclusion nor Cir. 1988) (permitting the Director to
of the first one. The Department does § 725.309 would preclude her from waive reliance on section 725.309). The
not agree, however, with the litigating her entitlement to benefits in provision governing additional
commenters’ suggestion that none of the a subsequent claim. survivors’ claims has been altered only
elements of a survivor’s claim is subject Similarly, the Department’s in order to accommodate revisions to
to change. In the case of a miner’s application of claim preclusion to section 725.213, which will explicitly
survivor, for example, the Secretary’s additional claims contains an exception permit a remarried survivor to establish
regulations recognize, consistent with based on the absence of an opportunity her entitlement to benefits upon ending
Departmental practice, court of appeals to fully and fairly litigate the issues in her marriage. Accordingly, the
precedent, and applicable Social a previous proceeding. As the Department does not agree that it has
Security law, that although a miner’s Department explained in its second substantially revised the applicability of
survivor who remarries is not then notice of proposed rulemaking, where the common law doctrine of claim
eligible for benefits, she may become re- one of the applicable conditions of preclusion under the Black Lung
entitled to benefits if that marriage ends. entitlement has changed, e.g., where the Benefits Act.
See preamble to § 725.213. Section miner has become totally disabled or a
725.309 recognizes this possibility by survivor has ended her second marriage, (f) One comment argues that the one-
allowing a miner’s survivor to litigate a neither the party defending against the element test codified by the revised
second claim where one of the grounds claim—the coal mine operator or the regulation violates the principles of
on which the first claim was denied, Trust Fund—nor the claimant is entitled issue preclusion. The commenter
e.g., that the survivor was married, is to rely on findings made in connection suggests that an X-ray that is found not
subject to change. with the denial of an earlier claim for to be credible in an earlier adjudication
Moreover, § 725.309 incorporates two benefits. 64 FR 54985 (Oct. 8, 1999). may not be credited in a subsequent
other limitations which are accepted One commenter’s suggestion that an adjudication. Common law principles of
components of traditional claim administrative law judge’s issue preclusion, however, do not
preclusion. First, where none of the determination in the original proceeding require such a result. Instead, once a
elements is subject to change, and that an X-ray is not worthy of credit claimant has submitted new evidence in
denial by virtue of claim preclusion is precludes any further litigation of that order to establish one of the elements of
appropriate under § 725.309, the issue in a subsequent proceeding simply entitlement previously resolved against
regulation requires the party defending reflects a misunderstanding of the tenets him, an administrative law judge must
the claim to specifically plead that of issue preclusion. Where that finding conduct a de novo weighing of the
doctrine. The Supreme Court has was not essential to the original denial evidence relevant to the remaining
observed that ‘‘[c]laim preclusion (res of benefits, because the ALJ ultimately elements, regardless of whether any of
judicata), as Rule 8(c) of the Federal denied benefits on another basis, or that evidence is newly submitted. The
Rules of Civil Procedure makes clear, is used alternative bases, issue preclusion Court of Appeals for the Seventh Circuit
an affirmative defense.’’ Rivet, 522 U.S. would not prevent a second factfinder discussed this issue at length in
at 476. Section 725.309 similarly from making a different finding, based Peabody Coal Co. v. Spese, 117 F.3d
requires an operator seeking the denial on his independent weighing of the 1001 (7th Cir. 1997) (en banc). It held
of an additional survivor’s claim by evidence, in connection with an as follows:
virtue of preclusion to raise that issue at additional claim. The law of preclusion also bars relitigation
the appropriate time. Like traditional (e) One comment opposes the revised of issues between the same parties when
claim preclusion, § 725.309 offers the version of § 725.309, suggesting it those issues were actually litigated and
party defending the cause of action an represents a revised application of the necessary to the decision of the earlier
affirmative defense that is subject to common law concept of claim tribunal. See Astoria Fed. Sav. & Loan Ass’n
waiver if not properly and timely raised. preclusion to adjudications under the v. Solimino, 501 U.S. 104, 107, 111 S.Ct.
See, e.g., Garry v. Geils, 82 F.3d 1362, Act. In fact, however, with one 2166, 2169, 115 L.Ed.2d 96 (1991)
1367 n. 8 (7th Cir.1996). exception in the case of survivors’ (preclusion applies to administrative agency
Second, claim preclusion is entitlement, the revised version of acting in judicial capacity to resolve fact
inappropriate even in traditional civil section 725.309 functions no differently issues properly before it); United States v.
litigation where the party against whom than the former regulation with respect Wyatt, 102 F.3d 241, 245 n. 5 (7th Cir. 1996),
the defense is invoked was not able to to this common law doctrine. As the cert. denied, l U.S. l, 117 S.Ct. 1325, 137
fully litigate those issues which the Department observed in its initial L.Ed.2d 486 (1997); Waid v. Merrill Area
Public Schools, 91 F.3d 857, 866 (7th Cir. contravening accepted principles of years old, and any delay in the receipt
1996) (state agency hearing). * * * issue preclusion, the Department’s of benefits may effectively deny them
* * * * * regulation gives those principles full the right to receive benefits and
[The Fourth Circuit, in Lisa Lee Mines v. force and effect. The commenter’s appropriate medical treatment.
Director, OWCP, 86 F.3d 1358 (4th Cir. 1996) suggestion, that a party must be bound Accordingly, the Department does not
(en banc), cert. denied, 519 U.S. 1090 (1997)] by a credibility determination that it intend to ‘‘penalize’’ individuals who
pointed out, correctly, that a claimant who
loses on three possible alternate grounds has
was unable to overturn on appeal, turns file unsuccessful subsequent claims.
no incentive to take an appeal to ‘‘correct’’ those principles on their head. (i) A number of comments object that
the agency on grounds 2 and 3, even if he (g) One comment suggests that the the revisions encourage the repeated
thinks there was error, if ground 1 is Department would breach its fiduciary relitigation of cases without
unassailable. Assuming that the passage of duty to the Black Lung Disability Trust Congressional authority. The
time has led to a material change in ground Fund in any case in which it Department has previously explained
1 and he can demonstrate this to the Director, affirmatively waived its right to rely on that section 725.309 does not allow the
the question is whether he should be barred the automatic denial of an additional relitigation of denied claims. 64 FR
from proceeding on a new claim just because survivor’s claim. The Department’s 54968, 54984–85 (Oct. 8, 1999). Once a
he has not also developed new evidence to
negate grounds 2 and 3. Under the Director’s obligation to the Trust Fund is to ensure claim has been denied, and the one-year
‘‘one-element’’ approach, as endorsed by the that the Fund not be required to pay time period for modification has passed,
Fourth Circuit and others, * * * the answer non-meritorious claims, i.e., that the a claimant cannot thereafter seek to
is no. This answer is consistent with general Trust Fund does not pay benefits to have that claim reopened. Even if he
principles of issue preclusion, under which individuals who do not meet the prevails on a subsequent claim, the
holdings in the alternative, either of which statutory eligibility criteria. Where miner will be unable to obtain benefits
would independently be sufficient to support appropriate, the Department will invoke for any period prior to the date on
a result, are not conclusive in subsequent the automatic denial provision in order which the earlier denial became final.
litigation with respect to either issue
standing alone. See Lisa Lee Mines, 86 F.3d to reduce the transaction costs that the Thus, rather than encouraging repeated
at 1363, citing Restatement (Second) of Fund would incur in defending a non- relitigation, the Department is simply
Judgments § 27, comment i (1982); Comair meritorious survivor’s claim. The effectuating Congressional intent that
Rotron, Inc. v. Nippon Densan Corp., 49 F.3d Department does not believe, however, miners who are totally disabled due to
1535, 1538 (Fed. Cir. 1995) (issue on which that it is obligated to invoke claim pneumoconiosis receive compensation
preclusion is sought must have clearly been preclusion in order to bar a claim in for their injury. Additional or
necessary to judgment); Baker Elec. Co-op., which a surviving spouse meets all of subsequent claims must be allowed in
Inc. v. Chaske, 28 F.3d 1466, 1475 (8th Cir. the conditions of entitlement and light of the latent, progressive nature of
1994); Gelb v. Royal Globe Insur. Co., 798
F.2d 38, 45 n. 6 (2d Cir. 1986). simply erred in filing a first application pneumoconiosis. Thus, the additional
117 F.3d at 1008. while remarried. claim is a different case, with different
(h) One comment suggests that the facts (if the claimant is correct that his
The commenter’s example, an X-ray Department should penalize individuals condition has progressed). There is no
that is found not to be credible in the who file an additional claim without a indication that Congress intended to
previous adjudication, illustrates the change in condition. The Department deny a miner benefits, or otherwise
operation of the regulation. If the prior disagrees. In its second notice of penalize him, for erroneously filing an
claim was denied solely on the basis proposed rulemaking, the Department application before his disease had
that the miner failed to establish the announced its desire to reduce the costs progressed to the point of total
existence of pneumoconiosis, the associated with non-meritorious claims disability.
commenter’s concern about a re- by providing applicants with a more Moreover, as the Department
weighing of the X-ray evidence realistic view of their possible explained in its second notice of
submitted in the prior adjudication is entitlement based on better pulmonary proposed rulemaking, the revised
simply unfounded. Because this was the evaluations and better reasoned version of § 725.309 does not have a
only issue resolved against the claimant, explanations of the denials of their reopening effect equivalent to that of
he must introduce new evidence that claims. 64 FR 54968, 54984 (Oct. 8, H.R. 2108. 64 FR 54972 (Oct. 8, 1999).
demonstrates the existence of the 1999). The Department also explained, The House of Representatives passed
disease if he is to avoid an automatic however, that it did not believe that it H.R. 2108 in 1994, but the Senate
denial of an additional claim. was appropriate to penalize an adjourned without taking action on the
Consequently, the factfinder may not applicant simply because he had filed a legislation. If enacted, the bill would
award benefits simply by redetermining previous claim for benefits prematurely. have required the de novo consideration
the credibility of the earlier evidence. In Id. The complete pulmonary evaluation of any claim filed on or after January 1,
most cases, however, the denial of the provided by the Department includes 1982, without regard to any earlier
prior claim will rest on multiple difficult tests, and the Department does denials. The Department’s regulation
findings. For example, an administrative not believe that a miner would does not have that effect. It simply
law judge may conclude that the deliberately subject himself to that codifies the Department’s former rule, as
claimant has not established either that testing if he did not truly believe that he interpreted by the appellate courts, and
he suffers from pneumoconiosis or that met the Act’s eligibility criteria. provides procedures to be followed
he suffers from a totally disabling Moreover, preventing a miner from upon the filing of an additional claim
respiratory impairment. In such a case, filing an additional claim merely on the covering later periods of alleged benefit
the Department’s regulation, consistent grounds that a previous additional claim entitlement. Accordingly, the
with the principles of issue preclusion was denied may result in the denial of Department is not authorizing the
set forth in Spese, requires that the benefits to individuals who meet the reopening or relitigation of claims in
claimant submit new evidence relevant Act’s eligibility requirements. Even excess of Congressional authority. In
only to one of the issues. If he submits requiring miners to wait an additional addition, as the Department has
new evidence that establishes his total period of time between additional previously explained, Congress’ failure
disability, the factfinder must weigh the claims would involve similar risks. The to enact legislation governing additional
X-ray evidence de novo. Far from average applicant for benefits is over 60 claims does not prevent the Department
from promulgating regulations on that Department also revised subsection (d) rethink his conclusions). One
subject as long as the regulations are with the stated purpose of prohibiting commenter also objects that the
issued pursuant to an appropriate grant the recovery, by either the Trust Fund regulation would prohibit an
of statutory authority. Ibid. or a responsible operator, of benefits administrative law judge from simply
(j) One comment suggests that the paid pursuant to a final award of denying a modification request based on
Black Lung Disability Trust Fund benefits that is later modified. In its the claimant’s failure to present
should be liable for the payment of any second notice of proposed rulemaking, additional evidence. In its second notice
subsequent claims that are approved. the Department added two provisions to of proposed rulemaking, the Department
The commenter states that imposing the subsection (d). The first would allow the observed that the Supreme Court’s
liability for these claims on the recovery of any benefits that were paid O’Keeffe decision requires this result. 64
insurance industry is fundamentally when the claimant was at fault in FR 54986 (Oct. 8, 1999). Accordingly,
unfair. The Department disagrees. As creating the overpayment. The second the commenters’ observations do not
revised, section 725.309 does not alter provision implemented the provide a basis for altering the
the adjudication of additional claims in Department’s intention to bar recovery Department’s proposal.
any substantive manner. Since 1978, of overpayments arising from (c) Two comments renew the
section 725.309 has recognized the need modification of awards where the award argument that the Department should
for allowing additional claims and was final before initiation of the not be able to initiate modification in
provided the conditions under which modification proceedings. 64 FR 54985– responsible operator cases. The
such claims could be approved. As the 86 (Oct. 8, 1999). In addition, the Department responded to a similar
Department has repeatedly emphasized, Department proposed revising the comment in its second notice of
the revised regulation simply effectuates evidentiary limitation in subsection (b) proposed rulemaking by citing the clear
the gloss given this regulation by the to correspond to similar changes in statutory language providing the district
federal courts of appeals. The § 725.414. Finally, the Department director with the independent authority
Department recognizes that additional responded to comments addressing the to initiate modification. (‘‘Upon his own
claims filed after the effective date of responsibility of factfinders to reweigh initiative, * * *, on the ground of a
these regulatory revisions will be the evidence of record on modification, change in conditions or because of a
adjudicated under new procedural and the district director’s authority to mistake in a determination of fact * * *
rules, and under regulations that clarify initiate modification in responsible the deputy commissioner may * * *
the entitlement criteria in Part 718 in a operator cases.
manner consistent with appellate issue a new compensation order. * * *
interpretations of the existing criteria. (b) One comment argues that the 33 U.S.C. 922(a), as incorporated by 30
The insurance policies purchased by Department’s proposed regulation U.S.C. 932(a)). The Department also
coal mine operators to secure their destroys the effect of claim preclusion observed that there were awarded cases
liability under the Black Lung Benefits and issue preclusion, while another in which a coal mine operator is
Act require the insurer to assume the comment suggests that the revised nominally liable for the payment of
risk of adverse appellate court regulation would allow an adjudicator benefits but, because of bankruptcy,
interpretations of the statute and simply to reweigh the evidence of dissolution, or other events, can no
regulations as well as the possibility of record and reach a conclusion different longer pay. In such cases, the
revision of the statutory criteria. See 20 from the one reached before. Both Department noted the district director’s
CFR 726.203(b) (1999) (insurance observations are correct, and both need to exercise his modification
endorsement). Accordingly, the outcomes are mandated by the statutory authority. 64 FR 54986 (Oct. 8, 1999). In
Department does not agree that the language that the regulation response, one commenter requests that
insurance industry is entitled to relief implements, 33 U.S.C. 922, incorporated the Department limit its authority to
from the effect of revising § 725.309. into the Black Lung Benefits Act by 30 initiate modification to those specific
(k) A number of comments voice their U.S.C. 932(a). In Banks v. Chicago Grain cases involving operator bankruptcy.
approval of the changes in the Trimmers Association, 390 U.S. 459 The Department declines to do so. The
Department’s second notice of proposed (1968), the Supreme Court reversed an district director’s initiation of
rulemaking. No other comments have appellate court’s holding that a modification in any case, whether the
been received concerning this section claimant’s modification request was defendant is a responsible operator or
and no other changes have been made barred by res judicata, or claim the Trust Fund, is consistent with
to it. preclusion. Instead, the Court held that Congress’s intent. Congress has
the statute clearly authorized reopening included in the Black Lung Benefits Act
20 CFR 725.310 compensation awards in order to correct section 22 of the Longshore and Harbor
(a) In its first notice of proposed factual errors. In O’Keeffe v. Aerojet- Workers’ Compensation Act, a workers’
rulemaking, the Department proposed General Shipyards, Inc., 404 U.S. 254, compensation program in which the
amending subsection (b) to limit the 255 (1972), the Court held that a overwhelming majority of cases
documentary medical evidence that factfinder was authorized to grant represent disputes between an employee
parties are entitled to submit in modification under section 22 ‘‘merely and his private employer. Thus,
connection with a request for on further reflection on the evidence Congress clearly contemplated that the
modification. 62 FR 3353 (Jan. 22, initially submitted.’’ See also Betty B district director would exercise his
1997). The Department amended Coal Co. v. Director, OWCP (Stanley), modification authority in cases
subsection (c) to reconcile a number of 194 F.3d 491, 497 (4th Cir. 1999) involving private employers. The
appellate decisions concerning the (modification procedure is examples provided by the Department
district director’s ability to conduct extraordinarily broad, especially insofar in its second notice of proposed
modification proceedings under the as it permits the correction of mistaken rulemaking were not intended to be an
Black Lung Benefits Act and to ensure factual findings); The Youghiogheny & exclusive listing of the circumstances in
that any party requesting modification Ohio Coal Co. v. Milliken, 200 F.3d 942, which a district director would be
receives a de novo adjudication of the 954 (6th Cir. 1999) (ALJ has the justified in initiating modification in a
existing evidence of record. The authority on modification simply to responsible operator case. Because the
Department does not believe it can Documentary evidence relevant to an for over a year, and that as a result an
readily identify all of the circumstances operator’s identification as a potentially earlier employer is designated the
in which district director-initiated liable operator, governed by § 725.408; responsible operator. If that earlier
modification would be appropriate, it and (2) documentary evidence relevant employer discovers the evidence after
does not intend to limit the district to the identity of the responsible the award becomes final, it would be
director’s discretion in the initiation of operator, governed by § 725.414 and able to demonstrate that extraordinary
modification proceedings. 725.456(b)(1). Under section 725.408, a circumstances justify the admission of
(d) One comment argues that an coal mine operator that has been the evidence in a modification
operator seeking to modify a benefits identified as a potentially liable proceeding.
award should not be able to obtain new operator by the district director with That same showing, however, will not
pulmonary testing, but should instead respect to a particular claim for benefits justify the admission of evidence
be limited to the report of one must contest that identification within relevant to the employer’s own
consultant. The commenter also argues, 30 days of the date on which it receives employment of the claimant. Under
however, that miners should be able to that notification, and must submit § 725.408, all documentary evidence
submit the results of additional testing certain evidence within 90 days of pertaining to the employer’s
in support of a modification petition receipt of notification. § 725.408(a), (b). employment of the claimant and its
seeking to change a denial of benefits to The specific issues on which the status as a financially capable operator
an award. The Department does not operator must submit all of its must be submitted to the district
agree that opposing parties should be documentary evidence within this 90- director. The comment appears to
governed by different evidentiary rules. day period include whether the operator suggest that there will be cases in which
One of the Department’s goals in was an operator after June 30, 1973; an operator discovers evidence bearing
proposing a limitation on the whether it employed the miner for a on its own employment of the miner
submission of documentary medical cumulative period of not less than one after the period for submitting evidence
evidence, as reflected in § 725.414 and year; whether the miner was exposed to has closed. The Department does not
§ 725.310, is to ensure that claimant and coal mine dust while working for the believe that there are extraordinary
the responsible operator have an equal operator; whether the operator circumstances sufficient to justify the
opportunity to present the highest employed the miner for at least one day admission of this evidence in any
quality evidence to the factfinder. That after December 31, 1969; and whether further proceedings. The evidence in
goal would not be served by creating an the operator is financially capable of question is within the control of the
evidentiary advantage for a claimant assuming liability for the payment of operator notified by the district director
who requests modification of a denial of benefits. The time period for submitting or, where an insurance company is the
benefits. In such cases, both the this evidence may be extended for good real party-in-interest, in the control of a
claimant and the responsible operator, cause, § 725.423, but the operator may party with whom that insurer has
or Trust Fund in appropriate cases, will not thereafter submit any further contracted to provide necessary
be entitled to submit one medical documentary evidence on these issues. coverage. The time period set forth in
report, and associated testing, as well as § 725.408(b)(2). section 725.408 is adequate to permit a
appropriate rebuttal evidence, as Sections 725.414 and 725.456(b)(1) full investigation and development of
outlined in the Department’s second govern the remaining documentary this evidence. If the operator or insurer
notice of proposed rulemaking. evidence relevant to the liability issue, is unable to locate the evidence within
(e) One comment argues that in light i.e., evidence relevant to which of the that period, it should seek an extension
of the evidentiary limitations imposed miner’s former employers is the of time from the district director.
by section 725.310 and 725.408, an responsible operator according to the A party’s ability to seek
operator will be deprived of its ability criteria set forth in § 725.495. Under reconsideration under § 22 of the
to seek modification of an erroneous § 725.414, an operator may submit Longshore and Harbor Workers’
responsible operator determination that documentary evidence to prove that a Compensation Act is subject to the
is discovered after the hearing. The company that more recently employed limitation that reconsideration must
Department disagrees that the the miner should be the responsible ‘‘ ‘render justice under the Act.’ ’’
regulations will always prevent an operator. This evidence must be McCord v. Cephas, 532 F.2d 1377,
operator from seeking modification of a submitted to the district director in 1380–81 (D.C. Cir. 1976). In McCord, an
responsible operator determination accordance with a schedule to be employer declined to supply evidence
based on newly discovered evidence. It established by the district director. and participate in the initial
is true, however, that the regulations § 725.410. Additional documentary adjudication of the claimant’s
limit the types of additional evidence evidence may be submitted only upon a application for benefits under the
that may be submitted on modification showing of extraordinary circumstances. Longshore and Harbor Workers’
and, as a result, an operator will not § 725.456(b)(1). Compensation Act. After the award
always be able to submit new evidence The operator’s ability to seek became final, the employer sought
to demonstrate that it is not a modification based on additional reconsideration. The D.C. Circuit held
potentially liable operator. documentary evidence will thus depend that although the adjudication officer
The Department explained in its on the type of evidence that it seeks to had jurisdiction to consider the
previous notices of proposed submit. Where the evidence is relevant employer’s request, his consideration
rulemaking that the evidentiary to the designation of the responsible should take the interests of justice into
limitations of §§ 725.408 and 725.414 operator, it may be submitted in a account. See also General Dynamics
are designed to provide the district modification proceeding if Corp. v. Director, OWCP, 673 F.2d 23,
director with all of the documentary extraordinary circumstances exist that 25 (1st Cir. 1982). In order to properly
evidence relevant to the determination prevented the operator from submitting administer the Black Lung Benefits Act
of the responsible operator liable for the the evidence earlier. For example, in accordance with this expression of
payment of benefits. The regulations assume that the miner’s most recent Congressional intent, S.Rep. No. 588,
recognize, and accord different employer conceals evidence that 73d Cong., 2d Sess., 3–4 (1934);
treatment to, two types of evidence: (1) establishes that it employed the miner H.R.Rep. No. 1244, 73d Cong., 2d Sess.,
4 (1934), the Department has balanced as to whether to suspend collection (April 25, 1978), the regulation
the desire of operators to request where the original denial has become contained a three-day mailing rule
modification against the Department’s final and the claimant has filed a which paralleled the rule in the Federal
interest in ensuring that potentially request for modification. For example, Rules of Civil Procedure. Compare Fed.
liable operators submit all of the in cases where the request is based R. Civ. P. 6(e). In the final rule, the
evidence relevant to their employment solely on a change in the miner’s Department changed the time period to
of the miner while the claim is first condition, a district director could seven days ‘‘[i]n view of the difficulties
pending before the district director. The reasonably conclude that the encountered in mail deliveries in many
Department believes that it is overpayment of benefits for a period rural coal mining areas.’’ 43 FR 36786
appropriate to prohibit an operator’s prior to that change should not be (Aug. 18, 1978). The Department’s
ability to introduce, in a modification suspended. In both former § 725.547(c) experience in administering the black
proceeding, ‘‘new’’ evidence relevant to and new § 725.549(a), district directors lung benefits program, however, has
the operator’s employment of the miner are permitted to ‘‘issue appropriate suggested that the grace period
or the operator’s status as a financially orders to protect the rights of the contained in the former regulation was
capable operator. parties.’’ The Department anticipates a source of confusion for the parties as
(f) One comment argues that the that any disputes over the collection of well as for the district directors. For
Department has not taken sufficient overpayments will be resolved under example, it could be argued that the
steps to prevent the misuse of that provision. Accordingly, there is no former regulation added an additional
modification by claimants who file need to address the collection of seven days to the one-year time limit for
repeated modification petitions. The overpayments in the regulation filing a modification petition, or the 30-
commenter has supplied no information governing modification. day time limit for filing a response to a
that suggests there is a widespread (h) No other comments have been proposed decision and order. The
problem involving the filing of non- received concerning this section, and no federal rule has engendered similar
meritorious modification petitions by other changes have been made to it. litigation. See, e.g., FHC Equities v. MBL
claimants. Like operators, claimants Life Assurance Corp., 188 F.3d 678,
20 CFR 725.311
may only obtain such reconsideration as 681–82 (6th Cir. 1997) (rule does not
will render justice under the Act, and (a) The Department proposed revising
apply to time periods that begin with
operators remain free to assert, on a § 725.311 in its first notice of proposed
entry of an order or judgment).
case-by-case basis, that the application rulemaking in order to remove the rule
of this standard requires a denial of a allowing parties an additional 7 days Accordingly, the Department has
claimant’s request for modification. The within which to respond to a document eliminated the seven-day grace period
Department does not believe, however, that is sent by mail, and to add the insofar as it formerly applied to all
that it should establish numerical or birthday of Martin Luther King, Jr., to documents served by mail. The
temporal limitations (e.g., limiting the list of legal holidays contained in Department believes that, rather than
claimants to a maximum number of the regulation. 62 FR 3354 (Jan. 22, increasing litigation, the revised
modification requests, or no more than 1997). The Department also sought to regulation will provide the parties with
a certain number in a given time period) resolve a split between the Courts of more exact notice of when pleadings are
on a claimant’s right to seek Appeals for the Fourth and Tenth due, and thus will reduce litigation over
modification. Congress’s overriding Circuits governing the time period for issues raised by the seven-day grace
concern in enacting the Black Lung responding to a document which was period. As a general rule, the analogy
Benefits Act was to ensure that miners supposed to be served by certified mail between the Department’s black lung
who are totally disabled due to but was not. Compare Dominion Coal regulations and the federal rules is
pneumoconiosis arising out of coal mine Corp. v. Honaker, 33 F.3d 401, 404 (4th inexact. The federal rules govern the
employment, and the survivors of Cir. 1994) with Big Horn Coal Co. v. filing of a variety of pleadings,
miners who die due to pneumoconiosis, Director, OWCP, 55 F.3d 545, 550 (10th including responses to complex
receive compensation. Because any Cir. 1995). In a case in which the party motions. Rule 6(e) attempts to ensure
limitation on the right to file actually received the document, that a party receives the full amount of
modification petitions could deny, or notwithstanding improper service, the time—usually thirty days—allotted by
delay, the payment of compensation to rule would commence the time period the drafters of the rules for preparing a
eligible claimants, the Department does for response upon a party’s actual response. In contrast, the documents
not believe that such limitations are receipt of the document. The whose filing is governed by Part 725 are
appropriate. Department did not address this relatively straightforward and simple.
(g) One comment suggests that the regulation in its second notice of They include responses to a schedule
proposal authorizes claimants to proposed rulemaking. See list of for the submission of evidence issued
petition for modification in order to Changes in the Department’s Second under § 725.410, which will contain the
avoid the repayment of an overpayment. Proposal, 64 FR 54971 (Oct. 8, 1999). district director’s designation of the
The Department does not believe that (b) One comment objects to deletion responsible operator, and a proposed
the regulation addresses this situation. of the seven-day grace period, formerly decision and order issued under
The Department’s current practice, in applicable to all documents sent by § 725.418. The regulations require that a
cases in which payments from the Black mail, arguing that the Department has party do no more within the initial 30-
Lung Disability Trust Fund have been no good reason to eliminate it. The day period following the issuance of
made based on the district director’s commenter also suggests that, if the these documents than indicate its
initial determination, and benefits have grace period is not replaced with agreement or disagreement with the
subsequently been denied by a higher something else, the regulation will assertions or findings contained in the
tribunal, has been to suspend the cause unnecessary litigation over document. The Department believes that
collection of any potential overpayment deadlines and the unnecessary this 30-day time period, commencing
if that denial has been appealed further. deprivation of the parties’ rights. with the date the document is sent,
The Department currently permits its When the Department first proposed provides ample time for the parties’
district directors to exercise discretion section 725.311, see 43 FR 17743–44 responses. Deleting the grace period
ensures that all parties to a claim, served on all the parties after the document rather than the date of actual
including claimants who are not issuance of a proposed decision and receipt when a document is served in
represented by an attorney, are able to order, requesting that the designated violation of the certified mail
ascertain their response time from the responsible operator commence the requirement. Subsection (d), however,
date of a document. payment of benefits. It does not require states that the response time ‘‘shall
The Department recognizes that one a written response. 20 CFR 725.420 commence on the date the document
of the filings governed by Part 725 is (1999). With respect to a case in which was received.’’ The provision is
more complex. Section 725.408 requires a petition for modification is being therefore clear that only actual receipt of
that an operator that has been identified adjudicated, the district director may a document served in violation of a
by the district director of its status as a issue either a proposed decision and certified mail requirement commences
potentially liable operator must accept order or a denial by reason of the recipient’s time for response.
or contest that identification within 30 abandonment at the conclusion of the (f) No other comments concerning this
days of the date on which it receives proceedings; both of these documents section were received, and no changes
notification from the district director. must be served by certified mail. The have been made in it.
That response requires the operator to Department believes the current Subpart D
address five specific assertions: that the requirements provide adequate
operator was an operator after June 30, protection for the parties, and therefore 20 CFR 725.351
1973; that the operator employed the declines to add the notice of conference The Department made only technical
miner for a cumulative period of not to the list of documents which must be changes to section 725.351 in its initial
less than one year; that the miner was served by certified mail. Section notice of proposed rulemaking, and the
exposed to coal mine dust while 724.416, governing the conduct of rule was not open for comment. See 62
working for the operator; that the informal conferences, permits the FR 3340–41 (Jan. 22, 1997). In its second
miner’s employment with the operator imposition of sanctions only for a notice of proposed rulemaking, the
included at least one working day after party’s unexcused failure to attend. In Department proposed deleting the
December 31, 1969; and that the the case of a claimant, the district requirement in subsection (a)(3) that a
operator is capable of assuming liability director must offer the claimant an district director must seek the approval
for the payment of benefits. That opportunity to explain why he did not of the Director, OWCP, before issuing a
response requires more investigation appear at the conference. See subpoena to compel the production of
than the others in Part 725. In addition, § 725.409(b). The Department believes documents. 64 FR 54986–87 (Oct. 8,
unlike the other response times that failure to receive the notice of 1999). No comments were received
governed by Part 725, the operator’s conference would constitute an concerning this section, and no changes
response does not begin to run on the adequate explanation for a claimant’s have been made in it.
date that the notification is mailed, but failure to appear. Similarly, any
on the date that it is received. In order employer against whom the district 20 CFR 725.362
to ensure that operators have the full 30 director has imposed sanctions for an In its initial notice of proposed
days in which to file their responses, unexcused failure to appear at an rulemaking, the Department proposed
and to allow the Department to assess informal conference may request revising section 725.362 in order to
the timeliness of that response, the reconsideration based on its failure to conform the regulation to the
Department has added a sentence to receive the required notice. Obviously, requirements of 5 U.S.C. 500(b), which
subsection (d). This provision will allow district directors may obviate the need allows an attorney to enter an
the district director to presume, in the for disputes over whether a party appearance without submitting an
absence of evidence to the contrary, that received the notice by sending it via authorization signed by the party he
the notice was received seven days after certified mail. represents. The Department also
it was mailed. (d) Two comments urge the proposed adding a requirement that a
(c) One comment urges enlarging the Department to afford a party either a notice of appearance, whether by an
number of communications which must rebuttable presumption or a conclusive attorney or by a lay representative,
be sent by certified mail to include finding of non-receipt of a document if include the OWCP number of the claim.
several types of decisional documents it must be sent by certified mail, the 62 FR 3354 (Jan. 22, 1997). The
issued by the district director. party alleges a failure to receive it, and Department did not discuss the rule in
Specifically, the commenter suggests the Department cannot produce a signed its second notice of proposed
use of certified mail to serve the return receipt. The recommended rulemaking. See list of Changes in the
following documents: initial presumption is not necessary. In the Department’s Second Proposal, 64 FR
determination; proposed decision and foregoing circumstances, an allegation 54971 (Oct. 8, 1999). No comments were
order; decision on modification; denial of non-receipt and absence of the signed received concerning this section, and no
by reason of abandonment; notice of return receipt is sufficient to impose on changes have been made in it.
conference; and memorandum of the Department the burden to prove by
conference. The Department’s revised some other evidence that the individual 20 CFR 725.365
regulations ensure that all important received the document. The lack of the The Department received one
documents are served by certified mail. signed receipt itself, however, should comment relevant to § 725.365. This
See proposed § 725.407(b) notification not be conclusive if other circumstances section was not open for comment; it
of potentially liable operator, demonstrate the individual actually was repromulgated without alteration
§ 725.409(b) (denial by reason of received the document. The Department for the convenience of the reader. See 62
abandonment); § 725.410(c) (evidentiary therefore declines to amend the FR 3341 (Jan. 22, 1997); 64 FR 54970
submission schedule); § 725.418(b) proposal. (Oct. 8, 1999). Therefore no changes are
(proposed decision and order). The (e) One comment argues that being made in it.
revised regulations eliminate the district subsection (d) is inconsistent with
director’s initial finding and existing law. The commenter believes 20 CFR 725.366
memorandum of conference. The subsection (d) requires the response The Department has received one
‘‘initial determination’’ is a document, time to commence upon service of the comment relevant to § 725.366. This
section had only technical revisions Section 725.412 provides that, following One of the commenters also cites the
made to it and was not open for receipt of the schedule, the designated expectation, created by the statute, that
comment, see 62 FR 3341 (Jan. 22, responsible operator may file a a claimant is responsible for a portion
1997); 64 FR 54970 (Oct. 8, 1999). statement accepting the claimant’s of the fees owed to his attorney and
Therefore no changes are being made in entitlement to benefits. The operator specifically the fee for any service
it. may avoid any liability for attorneys’ provided before the employer
fees by filing this statement within 30 controverts the applicant’s entitlement.
20 CFR 725.367
days of the issuance of the schedule. If The commenter suggests that, by
(a) In its initial notice of proposed it fails to do so, the responsible operator removing that responsibility from the
rulemaking, the Department proposed a will be considered to have created an claimant, the Department has not
number of revisions to clarify the adversarial relationship between the properly implemented the statute.
application of section 28 of the operator and the claimant. If the district The Department does not agree that
Longshore and Harbor Workers’ director exercises his authority under the revised regulation violates the plain
Compensation Act, 33 U.S.C. 928, as § 725.415 or § 725.417 to issue another language of the statute. The only court
incorporated by 30 U.S.C. 932(a), and schedule for the submission of to have considered this issue is the
made relevant to adjudications under additional evidence in order to Court of Appeals for the Fourth Circuit.
the Black Lung Benefits Act. 62 FR 3354 designate a different operator as the In Kemp v. Newport News Shipbuilding
(Jan. 22, 1997). The regulation provided responsible operator, and that operator and Dry Dock Co., 805 F.2d 1152 (4th
a non-exclusive list of instances in is ultimately determined to be liable for Cir. 1986), the court held that the
which an operator could be held liable the payment of benefits, that operator LHWCA is ambiguous on the issue of
for the payment of a claimant’s will be liable for the payment of whether an employer may be liable for
attorney’s fee, and recognized the Trust attorneys’ fees only if it fails to accept attorneys’ fees incurred by a claimant
Fund’s liability for fees by making it the claimant’s entitlement within 30 before the employer has controverted
coextensive with that of a responsible days of the date upon which it is the claimant’s entitlement. 805 F.2d at
operator. The Department proposed a notified of its designation. In cases 1153. Instead, the statute provides only
substantial revision of this regulation in where there is no operator liable for the that an employer will be liable for
its second notice of proposed payment of benefits, the district attorneys’ fees after it contests the
rulemaking. 64 FR 54987–88 (Oct. 8, director’s issuance of a schedule for the applicant’s entitlement, leaving
1999). Because the evidentiary submission of additional evidence will unresolved the starting point of such
limitations proposed by the Department create the adversarial relationship liability. The court recently reiterated its
make legal representation for claimants between the Black Lung Disability Trust interpretation of LHWCA § 28 in
advisable at the earliest possible stage of Fund and the claimant, such that the Clinchfield Coal Co. v. Harris, 149 F.3d
claims adjudication, the Department Trust Fund will be liable for attorneys’ 307, 310–11 (4th Cir. 1998). In resolving
revised the regulation to require fees if the claim is successfully statutory ambiguity through the
operators or the Trust Fund to pay a prosecuted. Similarly, in subsection regulatory process, the Department is
reasonable fee for any necessary work (a)(4) the Department has deleted the entitled to select any reasonable
done even if the work was performed reference to an operator’s ‘‘notice of interpretation that is consistent with
prior to the date on which the operator controversion’’ contesting a claimant’s Congressional intent. Chevron U.S.A.,
controverted the claimant’s entitlement request for an increase in the amount of Inc. v. Natural Resources Defense
to benefits. Thus, although the creation benefits payable. As revised, the Council, 467 U.S. 837, 842–3 (1984).
of an adversarial relationship and the regulations do not require a specific The Department is fundamentally
ultimately successful prosecution of a notice of controversion to create the altering the obligations of the parties at
claim were still necessary to trigger adversarial relationship between a the district director level in a manner
employer or fund liability for attorneys’ claimant and an employer. that will encourage claimants to consult
fees, the date on which the adversarial The Department has also substituted with attorneys much earlier in the
relationship commenced no longer the phrase ‘‘reasonable fees for process. Among other things, the
served as the starting point for such necessary services’’ for the phrase ‘‘fees Department is limiting the quantity of
liability. The Department rejected for reasonable and necessary services’’ medical evidence that all parties are
comments suggesting that lay in subsection (a), and has substituted entitled to submit. In addition, at the
representatives should be entitled to the phrase word ‘‘necessary’’ for the claimant’s request, the Department will
collect fees from responsible coal mine word ‘‘reasonable’’ in subsections provide his treating physician with the
operators or the fund. The Department (a)(1)–(5). The changes make the test results obtained during the
also discussed the several appellate regulation consistent with § 725.366(a). complete pulmonary evaluation
court decisions and their impact on The previous wording was not intended authorized by section 413(b) of the Act,
responsible operator and fund liability to create a different test for gauging the 30 U.S.C. 923(b). Because these
for attorneys’ fees. need for an attorney’s services, and the revisions will require claimants to make
(b) The Department has revised the revision will eliminate any potential critical decisions at the earliest stage of
first sentence of subsection (a)(1) and confusion. adjudication, the regulations must also
the first sentence of subsection (a)(2) in (c) Two comments argue that the encourage attorneys to represent
order to reflect changes to §§ 725.410 Department’s proposal violates the plain claimants as early as possible. The
and 725.412. In place of the former language of the incorporated provision Department hopes that claimants will
initial finding, the district director will of the Longshore and Harbor Workers’ receive advice when that advice is most
issue a schedule for the submission of Compensation Act governing the helpful. Insurance carriers, who are
additional evidence under § 725.410. payment of attorneys’ fees. Specifically, primarily liable in cases in which they
This schedule will include the district they argue that section 28 permits provide insurance to the responsible
director’s preliminary analysis of the employer liability for a claimant’s operator, as well as self-insured
medical evidence of record, and his attorney’s fees only for services operators, most commonly have the
designation of the responsible operator rendered after the employer controverts assistance of experienced attorneys and
liable for the payment of benefits. the applicant’s eligibility for benefits. claims processing agents in the early
stages of claim development, and the Department’s provision may not be liability of the Trust Fund for such fees
Department believes that claimants applied retroactively. It has consistently was coextensive with that of a liable
should have comparable aid. been the Department’s position that coal mine operator. 62 FR 3354 (Jan. 22,
Accordingly, the Department believes before liability for a claimant’s 1997). This liability derives from a
that it is justified in adopting a new attorney’s fee may shift to a responsible series of appellate court opinions
interpretation as to the starting point of operator or the fund, there must be a holding that the Trust Fund must stand
the employer’s or the fund’s liability for controversion of entitlement sufficient in the shoes of a coal mine operator in
attorneys’ fees. to create an adversarial relationship any case in which no operator may be
In addition, contrary to the suggestion followed by the successful prosecution held liable for the payment of benefits.
of the commenter, the Department’s of a claim. Nothing in this regulation
62 FR 3354 (Jan. 22, 1997). Those
proposal does not eliminate all alters that requirement. The Department
instances in which a claimant may be opinions rejected the Department’s
does agree, however, that once these
responsible for his attorney’s fees. prerequisites are met, the revised argument that the Trust Fund could not
Section 28(c), 33 U.S.C. 928(c), states regulation could result in the award of be held liable for any attorneys’ fees.
that ‘‘[a]n approved attorney’s fee, in higher attorneys’ fees. The Department Although the Department’s regulations
cases in which the obligation to pay the believes that an increase in attorneys’ have been revised to acknowledge the
fee is upon the claimant, may be made fees is necessary in order to encourage Trust Fund’s liability under these
a lien upon the compensation due under earlier attorney involvement in the circumstances, the Department does not
an award.’’ The commenter argues that adjudicatory process, and that such believe that the statute can be read in
a claimant will never be liable for involvement will be helpful to the manner suggested by these
attorneys’ fees under the Department’s claimants in light of the evidentiary commenters to authorize the
proposal, and that the proposal thus restrictions imposed by these expenditure of additional amounts of
contravenes the statutory language. The regulations. The Department also hopes Trust Fund moneys to increase counsel
Department does have the authority to to encourage a larger number of availability for black lung claimants.
vary incorporated provisions of the attorneys to represent claimants by With respect to time spent preparing
Longshore Act for purposes of allowing the award of higher fees.
administering the Black Lung Benefits a fee petition and litigating the issue of
During the rulemaking hearings,
Act, see 30 U.S.C. 932(a). It has not done witnesses repeatedly brought to the attorneys’ fees, two comments seek the
so in this case, however. Instead, the Department’s attention that few revision of material in § 725.366.
Department’s regulation does attorneys are willing to represent Because § 725.366 was not listed among
contemplate that a claimant may be claimants, in part because of the many the regulations open for comment, no
liable for an attorney’s fee. 20 CFR restrictions on the award of attorneys’ changes are being made in it. 62 FR
725.365. For example, in any case in fees. Transcript, Hearing on Proposed 3341 (Jan. 22, 1997); 64 FR 54970 (Oct.
which the liable party, either the Trust Changes to the Black Lung Program 8, 1999). Moreover, the regulation’s
Fund or the operator, accepts the Regulations, (June 19, 1997), p. 22 current language does not prohibit an
claimant’s entitlement prior to the (testimony of Cecil Roberts); p. 168 attorney from receiving a fee for time
expiration of the 30-day period in (testimony of John Cline); pp. 238–239, spent litigating the amount of his
§ 725.412(b) but the claimant has 246 (testimony of Grant Crandall). The attorney’s fees, and the Department does
nevertheless retained counsel who has Department also agrees that the rule not believe that more explicit language
performed services in connection with should not be applied retroactively, and is necessary. The Benefits Review Board
the claim, the prerequisite for shifting has changed § 725.2 accordingly. has held that time spent by an attorney
fee liability—the controversion of (d) Several comments agree with the defending a fee represents ‘‘necessary
entitlement—has not been met. A Department’s revisions, but two urge the work done,’’ so as to entitle the attorney
similar case may arise where the Department to take further steps to to an additional fee under 20 CFR
operator initially designated the increase the participation of attorneys in
802.203(c) (1999), see Workman v.
responsible operator by the district black lung benefits adjudications by
Director, OWCP, 6 Black Lung Rep.
director fails to accept the claimant’s providing additional attorney funding
eligibility, but the finally designated from the Black Lung Disability Trust (MB) 1–1281, 1–1283 (Ben Rev. Bd.
responsible operator does accept the Fund. Specifically, the commenters urge 1984), and the Department believes that
claimant’s eligibility. In such a case, the the Department to make funds available §§ 725.366 and 725.367 require the same
responsible operator would not be liable to pay black lung associations and other result. The prohibition in § 725.366 on
for the payment of the claimant’s non-profit groups assisting claimants or fees for time spent filling out a fee
attorney’s fee. Because the to advance fees awarded to claimant application presents an entirely
overwhelming majority of coal mine attorneys litigating against responsible different question from whether it is
operators contest claimant eligibility at operators before the award of benefits reasonable to require an employer who
this stage, the Department does not becomes final. The commenters also unsuccessfully challenges that
expect this kind of case to arise often. urge the Department to repeal the application to pay a fee for the
In either case, however, the claimant prohibition on receiving fees for time necessary additional time that the
remains responsible for any reasonable spent preparing a fee petition, and to attorney was required to spend
fees approved by the district director for clarify the right of attorneys to obtain defending his fee request. Because the
necessary work performed in obtaining fees for time spent litigating their right Department believes that the current
the award. Accordingly, the to fees. regulations permit an award of
Department’s revised attorney fee The Department cannot agree that attorneys’ fees in the latter case, it is not
regulation does not violate any statutory amounts from the Trust Fund should be
necessary to change the regulation.
command. made available to pay additional
(c) One comment observes that the attorneys’ fees. In its initial proposal, (e) No other comments were received
Department’s revisions would expand the Department observed that one of its concerning this section, and no changes
the availability and award of attorneys’ goals in revising the regulation of have been made in it.
fees, while another argues that the attorneys’ fees was to ensure that the
Subpart E event, subsection (d) of § 725.405 provides the more detailed definition as
20 CFR 725.403 authorizes the district director to collect well as the criteria and presumptions
‘‘other evidence’’ concerning the which apply to determining whether a
The Department made only technical miner’s employment and ‘‘[a]ll other particular individual satisfies the
revisions to § 725.403 in its first notice matters relevant to the determination of definition.
of proposed rulemaking, and the the claim.’’ This language is sufficiently (d) No other comments were received
regulation was not open for comment. broad to acknowledge the district concerning this section, and no changes
62 FR 3341 (Jan. 22, 1997). In its second director’s obligations concerning have been made in it.
notice of proposed rulemaking, the evidentiary development of a claim as
Department proposed deleting 20 CFR 725.406
well as the authority to discharge those
§ 725.403. 64 FR 54988 (Oct. 8, 1999). obligations. No useful purpose would be (a) In its first notice of proposed
Section 725.403 implemented the served by a more specific enumeration rulemaking, the Department proposed
requirement in 30 U.S.C. 923(c) that of particular areas of inquiry in this revising § 725.406 to address the
claimants who filed applications under provision. relationship between the evidentiary
the Black Lung Benefits Act between The type of inquiry urged by these limitations contained in § 725.414 and
July 1 and December 31, 1973, 30 U.S.C. commenters is covered in more detail the complete pulmonary evaluation
925, must file a claim under the elsewhere in the Secretary’s regulations. provided by the Department under 30
workers’ compensation law of their state Section 725.495(b) imposes on the U.S.C. 923(b). 62 FR 3354–55 (Jan. 22,
unless such filing would be futile. Director, OWCP, the burden of proving 1997). As initially proposed, § 725.406
Because the time period for filing such that the responsible operator designated retained the Department’s practice of
claims expired over 25 years ago, the liable for the payment of benefits is a allowing a claimant to select the
Department proposed removing potentially liable operator. In addition, physician to perform the complete
§ 725.403, and specifically invited § 725.495(d) requires that if the pulmonary evaluation at the
comment on its removal. The responsible operator designated for the Department’s expense. In those cases,
Department did not receive any payment of benefits is not the operator however, the report generated by the
comments on the proposed removal of that most recently employed the miner, evaluation would have counted as one
§ 725.403 and therefore has removed it the district director must explain the of the two reports that the claimant was
from further publications of the Code of reasons for his designation. These entitled to submit into evidence. If, on
Federal Regulations. The Department provisions make necessary the district the other hand, the claimant went to a
has not altered the rules applicable to director’s gathering of a miner’s physician selected by the Department,
any claim filed between July 1 and employment history, including, in most the evaluation would not count against
December 31, 1973, however. Parties instances, his Social Security earnings the limitations imposed on the claimant.
interested in reviewing § 725.403 may record. Indeed, § 725.404(a) requires Instead, in cases in which the Black
consult 20 CFR 725.403 (1999). each claimant to furnish the district Lung Disability Trust Fund would bear
director with a complete and detailed liability for benefits, such a report
20 CFR 725.404 history of coal mine employment and, would count as one of the two reports
The Department received one upon request, supporting that could be offered by the Director. In
comment relevant to § 725.404. The documentation. The district director cases in which a responsible operator
Department made only technical must send to each operator notified of was potentially liable for benefits, the
revisions to this section, and the its potential liability for a claim copies complete pulmonary evaluation
regulation was not open for comment; of the claimant’s application and all provided by a doctor of the
see 62 FR 3340–41 (Jan. 22, 1997); 64 FR evidence obtained by the district Department’s choosing would not have
54970 (Oct. 8, 1999). Therefore no director relevant to the miner’s counted against the evidentiary limit
changes are being made in it. employment. § 725.407(b), (c). If the imposed on either the responsible
district director concludes that the operator or the claimant. The
20 CFR 725.405 Department also discussed its
miner’s most recent employer cannot be
(a) In its first notice of proposed designated the responsible operator responsibilities for ensuring that the
rulemaking, the Department proposed because it is not financially capable of report, and each component of the
revising subsection (b) to recognize its assuming liability for the payment of evaluation, substantially complied with
practice of refusing to provide a benefits, the district director must the Department’s quality standards.
complete pulmonary evaluation to explain his conclusion based on a Finally, the Department clarified the
claimants who never worked as a miner. search of the records maintained by the mechanism by which it might seek
62 FR 3354 (Jan. 22, 1997). The OWCP. § 725.495(d). Only if the OWCP reimbursement of the cost of the
Department did not discuss § 725.405 in has no record of insurance or evaluation from an operator that had
its second notice of proposed authorization to self-insure for that last been finally determined to be liable for
rulemaking. See list of Changes in the employer, and the record so states, may the payment of claimant’s benefits.
Department’s Second Proposal, 64 FR OWCP name an employer other than the The Department proposed major
54971 (Oct. 8, 1999). miner’s most recent as the responsible revisions to § 725.406 in its second
(b) Two comments argue the operator for the claim. Thus, the district notice of proposed rulemaking. 64 FR
regulation is too limited because it does director’s obligation to develop the 54988–990 (Oct. 8, 1999). The
not address the district director’s evidence of record, other than medical, Department agreed with commenters
obligation to develop evidence other is set forth elsewhere in the regulations who suggested that it placed an
than medical evidence. The Department where relevant. unnecessary burden on a claimant to
disagrees. The specific purpose of this (c) One comment recommends choose whether or not to select a
regulation is stated in its title: changing the regulatory reference to physician to perform his complete
‘‘Development of medical evidence; ‘‘miner’’ in paragraph (a) from § 725.202 pulmonary evaluation. In most cases,
scheduling of medical examinations and to § 725.101(a)(19). This such a choice would be made before a
tests.’’ The development of evidence in recommendation is rejected. While both claimant obtained representation, and
general is addressed at § 725.404. In any sections define ‘‘miner,’’ § 725.202 could result in a claimant being limited
thereafter to the submission of only one due to a lack of effort with one sufficient pool of physicians in certain
additional medical report. Accordingly, additional opportunity to take those states (a pool that includes physicians
the Department proposed the creation of tests. Finally, the Department discussed in all contiguous states), the Department
a list of physicians, authorized by the its treatment of subsequent claims, in will simply adjust the procedural rules
Department to perform complete which the Department provides a new applicable to claimants who reside in
pulmonary evaluations. Miners who complete pulmonary evaluation, and those states. The absence of a sufficient
applied for benefits would be required modification requests, in which it does pool of physicians in some limited
to select a physician from that list, but not. 64 FR 54989–90 (Oct. 8, 1999). number of states would not justify a
could choose any listed doctor either in (b) Several comments continue to national exception to the policy of
their state of residence or from a oppose subsection (e), observing that if requiring claimants to submit to a
contiguous state. The resulting the Department develops a list of highly complete pulmonary evaluation in their
evaluation would not be considered one qualified physicians to perform the own region. In addition, claimants
of the two medical reports that a complete pulmonary evaluation, it remain free to go to any physician of
claimant was entitled to submit in should have no need to seek the opinion their choosing for the development of
support of his claim for benefits. of yet another physician at this stage of evidence in support of their claims.
The Department further stated its the adjudication. Another comment (d) One comment argues that
intent to develop more rigorous objects to the proposed substitution of claimants should be randomly assigned
standards for selecting physicians evidence under subsection (e), calling it to physicians on the Department’s list
authorized to perform a complete the destruction of relevant evidence. In rather than allowing claimants their
pulmonary evaluation. The response to the initial proposal, the own choice. The Department disagrees.
Department’s suggested standards same commenter objected to subsection The list that the Department ultimately
included: (1) Qualification in internal or (e) because the district director’s compiles will contain physicians who
pulmonary medicine; (2) ability to authority to have the miner retested and are well-qualified to perform complete
perform each of the necessary tests; (3) reexamined invited piecemeal and pulmonary evaluations, and whose
ability to schedule the claimant for an protracted evidentiary development. opinions the Department is willing to
evaluation promptly; (4) ability to The Department has reconsidered the accept in the initial stages of
produce a timely, comprehensive report; authority granted by subsection (e), and adjudication of the claimant’s eligibility.
and (5) willingness to answer follow-up agrees that the provision should be Claimants may already be acquainted
questions and defend his conclusions deleted. The Department has relabeled with one or more physicians on the list,
under cross-examination. The subsection (f) as subsection (e) to and requiring that claimant submit to an
Department specifically sought accommodate this revision. The examination by a different physician,
comment on these and other standards deletion of subsection (e) does not affect perhaps in a neighboring state, would be
for selecting physicians to be included the district director’s authority under inefficient. Accordingly, the Department
on its list, 64 FR 54989 (Oct. 8, 1999). subsection (c) to determine whether the has not changed the regulation.
In addition, the Department stated its individual components of the complete The commenter also argues that the
intention to survey clinics and pulmonary evaluation have been mere fact that a physician is included
physicians on the fees they charged for administered and reported in on the Department’s approved list by
these services, with the goal of attracting compliance with the Department’s meeting the Department’s standards
highly qualified doctors to perform the quality standards. The Department does not guarantee that the physician
testing and evaluation required by the agrees, however, that the district will provide an impartial opinion,
Department for the complete pulmonary director should have no need to send particularly when a claimant has a role
evaluation. The Department also added the claimant for additional examination in selecting the physician who will
subsection (d) to the proposed and testing after completion of a perform the complete pulmonary
regulation in order to allow a claimant complete pulmonary evaluation, the evaluation. The Department does not
to have the Department send the components of which are in substantial believe that it is required to provide an
objective test results obtained in compliance with the applicable quality absolute guarantee of the impartiality of
connection with the complete standards, § 725.406(a)–(c). Under physicians selected for inclusion on the
pulmonary evaluation to his treating revised § 725.406, the initial evaluation list. By establishing high standards for
physician. The Department noted its will be performed by a highly qualified the performance of these evaluations,
intent to make available to each physician who may be asked to clarify and by ensuring that only highly
claimant at least one set of legally and/or supplement an initial report if qualified physicians are included on the
sufficient objective test results so that unresolved medical issues remain. approved list, the Department will be
no claimant would be hindered by a (c) Two comments state that a miner taking appropriate steps to ensure
lack of financial resources in pursuing should be entitled to choose an impartial opinions. In addition, the
his application for benefits. 64 FR 54989 authorized physician anywhere in the Department has revised subsection (c) to
(Oct. 8, 1999). country to perform his complete limit a miner’s choice of the examining
The Department rejected comments pulmonary evaluation rather than being physician in two respects. First, the
suggesting the deletion of subsection (e), limited to one from his state of miner may not select a close relative of
permitting the district director to clarify residence or a contiguous state. The himself or his spouse. The regulation
‘‘unresolved medical issues.’’ The commenters state that claimants would uses the term ‘‘fourth degree of
Department also discussed comments be willing to pay the additional costs consanguinity’’ to exclude, among
concerning the district director’s ability incurred as a result of such travel. others, parents, children, grandchildren,
to determine whether all parts of the Although the commenters suggest that brothers, sisters, nephews, nieces, aunts,
complete pulmonary evaluation were in there will not be a sufficient supply of uncles, and first cousins from those
substantial compliance with the physicians in some areas, such as individuals otherwise qualified to
Department’s quality standards. The Wyoming and Alabama, the Department perform a complete pulmonary
Department revised subsection (c) to has no evidence that would support that evaluation. Second, the miner may not
provide a claimant whose initial tests do contention. Moreover, even if the select any physician who has examined
not comply with the quality standards Department is unable to obtain a him or treated him in the year preceding
his application for benefits. The perform the evaluation. In such areas, regulation itself does state that a report
Department believes that it would be the criteria will need to afford the from the claimant’s treating physician,
inappropriate to allow a miner to select Department enough flexibility to ensure based on the Department’s clinical
a physician with whom he has an an adequate supply of physicians who testing, will count as one of the two
ongoing treatment relationship to meet certain minimum qualifications, reports the claimant is entitled to
perform the complete pulmonary such as affiliation with a black lung submit into evidence under § 725.414,
evaluation paid for by the Department. clinic funded in part by the Department § 725.406(d).
Although the Department does not mean of Health and Human Services. (g) One comment states that the
to suggest that a physician would be Two comments urge the Department Department’s requirements prevent
unable to provide an impartial to rule out physicians who have physicians from exercising their
assessment of the miner’s respiratory demonstrated that they do not accept professional judgment by dictating the
condition in such a case, his opinion one or more of the basic premises of the tests that they are required to perform
could present at least the appearance of Black Lung Benefits Act. These and by emphasizing promptness and
a conflict of interest. In order to ensure commenters urge the Department to timeliness over completeness and
the credibility of the Department’s review the opinions and depositions of thoroughness. The Department
pulmonary evaluation, the Department each physician who seeks to be disagrees. The Act authorizes the
has adopted a bright-line test, in the included on the list, eliminating those Department to set minimal quality
form of a one-year cutoff, that will be with opinions which make it impossible standards for medical evidence. Reports
easily understood by miners and their to provide a sound evidentiary basis for of physical examination must
physicians. The Department believes the district director’s initial decision. substantially comply with the
that a physician’s examination or Another comment urges the Department applicable quality standards, § 718.104.
treatment of the miner prior to the one- to accept any physician who applies for That regulation requires that a report of
year period preceding the miner’s inclusion on the list provided that the physical examination be based on,
application should not disqualify that physician possesses the necessary among other things, a chest X-ray, a
physician from performing the complete professional qualifications. As an initial pulmonary function test, and a blood
pulmonary evaluation. The Department matter, the Department does not intend gas study, unless medically
reserves the right to delete a physician to screen physicians who apply for contraindicated. Because these tests are
from the list if he is unable to provide inclusion on the list beyond satisfying necessary for a complete pulmonary
an impartial opinion. itself that the basic requirements for evaluation, the Department has
(e) Several comments argue that the inclusion are met. The Department authorized their performance under
Department needs to make public the simply does not have the resources to § 413(b) of the Act, 30 U.S.C. 923(b), for
criteria it will use to select physicians conduct an intensive review of the the last two decades. The Department
for inclusion on the list. In its second medical reports and/or deposition expects that each physician included on
notice of proposed rulemaking, the testimony submitted by each physician the list will not only be able to
Department notified interested parties in previous black lung cases. The administer these tests, but will commit
that these criteria will be published in Department reserves the right, however, to doing so in substantial compliance
the Department’s Black Lung Program to exclude from its list of approved with the Department’s quality
Manual which will be available to the physicians those who prove unable to standards, §§ 718.102–.106. The
public. 64 FR 54989 (Oct. 8, 1999). provide opinions that are consistent Department does not believe that its
Interested parties will thus be able to with the premises underlying the statute requirements prevent a physician from
monitor the Department’s standards and and the Secretary’s regulations. The preparing a thorough and complete
use of these standards in selecting federal courts of appeals have held that medical report. In order to process
physicians for inclusion on the list. a denial of benefits may not be based on claims expeditiously, however, the
In addition, a number of commenters a medical opinion that is fundamentally Department must also ensure that the
responded to the Department’s request at odds with the premises of the Black examination is scheduled promptly, and
for comments on the standards that the Lung Benefits Act. See, e.g., Lane the resulting report is prepared in a
Department proposed to use to select Hollow Coal Co. v. Director, OWCP, 137 timely manner. The Department
physicians. Two commenters F.3d 799, 804–5 (4th Cir. 1998); Penn recognizes that, in some cases, the
emphasized the importance of requiring Allegheny Coal Co. v. Mercatell, 878 claimant’s choice of a physician may
that the evaluations be performed by a F.2d 106, 109–110 (3rd Cir. 1989); result in a slight delay if the physician
physician board-certified in internal Robbins v. Jim Walter Resources, Inc., he has selected is busy. The delay in
medicine or a physician board-eligible 898 F.2d 1478, 1482 (11th Cir. 1990); such a case, however, is solely within
in pulmonary medicine or one with Wetherill v. Director, OWCP, 812 F.2d the control of the claimant. If he is
extensive knowledge of pulmonary 376, 382 (7th Cir. 1987); Kaiser Steel willing to accept the delay, he may wait
disease. The Department will make Corp. v. Director, OWCP, 757 F.2d 1078, for that physician. If not, he may choose
every effort to ensure that its list 1083 (10th Cir. 1985). The Department another from the Department’s approved
includes highly qualified physicians. reserves the right to determine list.
Optimally, the Department will be able appropriate exclusions from the list on (h) Several comments approved of the
to enlist the services of Board-certified a case-by-case basis. revisions affording the claimant the
internists who have a subspecialty in (f) One comment states that the right to select a doctor to perform the
pulmonary medicine, who are Board- regulation should require the district complete pulmonary evaluation from an
eligible in pulmonary medicine, or who director to explain to a claimant the approved list.
can demonstrate extensive experience in possible consequences of having his test (i) No other comments were received
the diagnosis and treatment of results provided to his treating concerning this regulation.
pneumoconiosis to perform complete physician. The Department intends to
pulmonary evaluations. There may be provide such information to claimants, 20 CFR 725.407
circumstances, however, in which there see also 64 FR 54989 (Oct. 8, 1999), but (a) In its first notice of proposed
will not be a sufficient supply of such does not believe that the regulation rulemaking, the Department proposed
highly qualified physicians willing to must reflect this intention. The moving subsections (a) and (c) of 20
CFR 725.407 (1999) to § 725.406 and properly named. This comment is more an operator and the claimant’s eligibility
eliminating subsection (b). See preamble appropriately addressed under while the case was pending before the
to §§ 725.407 and 725.408, 62 FR 3355 § 725.465, the regulation governing the district director. The Department’s
(Jan. 22, 1997). In their place, the dismissal of claims and parties. second notice of proposed rulemaking,
Department proposed a new regulation (d) One comment argues that the however, proposed a substantial
governing the identification and revised regulation will raise the alteration in procedure that would
notification of ‘‘potentially liable litigation costs of responsible operators. permit parties to maintain their current
operators,’’ a subset of the miner’s The commenter observes that the practice of deferring the development of
former employers that might be liable Department does not dispute the medical evidence until after a case has
for a given claim. Depending on the allegation, made in response to the been referred to the Office of
complexity of the miner’s employment Department’s first notice of proposed Administrative Law Judges. 64 FR
history, section 725.407 would permit rulemaking, that the Department’s 54993 (Oct. 8, 1999). The Department
the district director initially to notify changes will generally increase has adopted this second proposal in
one or more potentially liable operators, litigation costs by $6,000 per claim. The these final regulations. Consequently,
and their insurers, of the existence of a commenter states that the revisions in while potentially liable operators will
claim and would also allow the the Department’s second notice of be required to develop evidence
notification of additional potentially proposed rulemaking will result in an relevant to their liability while claims
liable operators at any time prior to additional $6,000 in costs per claim. are pending before the district directors,
referral of the case to the Office of With regard to the first figure, the they will no longer need to expend
Administrative Law Judges. The commenter appears to have money on the development of medical
proposal placed no time limit on the mischaracterized its prior comment. An evidence in those cases (70% of cases,
notification of an operator if that economic analysis conducted by according to industry estimates) that do
operator fraudulently concealed its Milliman & Robertson, Inc., and not proceed beyond the district director
identity as an employer of the miner. submitted to the Department in level. In addition, the Department has
In its second notice of proposed response to the first notice, was based further revised its regulations to require
rulemaking, the Department proposed in part on an assumption that ‘‘the that all but one potentially liable
revising subsection (d) to permit the average defense costs of $6,000 per operator, the one finally designated as
district director to notify additional claim currently expended by the responsible operator, be dismissed as
potentially liable operators after an responsible operators/insurers primarily parties to the case upon issuance of the
administrative law judge reversed a on claims that are initially awarded or district director’s proposed decision and
district director’s denial by reason of denied and appealed by the claimant order. See § 725.418(d) and explanation
abandonment pursuant to § 725.409 and (presently, approximately 30% of all accompanying § 725.414. Thus, only
remanded the case for further claims filed), will be expended on all one potentially liable operator will
proceedings. 64 FR 54990 (Oct. 8, 1999). claims at the earliest stage of incur costs in the adjudication of each
The Department observed that without adjudication.’’ Rulemaking Record, claim for benefits beyond the district
this provision, subsection (d) could Exhibit 5–174, Appendix 5 at 4. This director level.
have been read to prohibit the economic analysis did not assert that Under the revised regulations,
notification of additional operators, costs would rise in all cases, but that potentially liable operators will be
notwithstanding the fact that the district operators and insurers would be required to submit evidence to the
director had not been able to complete required to incur the cost of fully district director in each case regarding
his administrative processing of the developing evidence in cases (70 their employment of the miner. See
claim before its referral to the Office of percent of the claims filed) in which § 725.408. In addition, in the small
Administrative Law Judges. In addition, they formerly did not have to do so. The number of cases in which the
the Department rejected a suggestion analysis did not assert that the Department does not name the miner’s
that it provide guidelines for district Department’s proposal would raise most recent employer as the responsible
directors to use in determining the cases litigation costs in the remaining 30 operator, the earlier employer that has
in which it would be appropriate to percent of cases. The Department has no been designated the responsible
name more than one potentially liable basis on which to dispute the industry’s operator may incur additional costs in
operator. statement that its average defense costs, attempting to establish that a more
(b) The Department has made two in cases that proceed beyond an initial recent employer should be held liable
changes to § 725.407 to conform to denial of benefits by the district for the payment of benefits. In
changes to other regulations in this director, are $6,000. In fact, the comparison to the costs of developing
subpart. The Department has deleted the economic analysis prepared for the medical evidence, however, the
reference to a district director’s initial Department in connection with the Department believes that the additional
finding in subsection (a) because the Regulatory Flexibility Act adopted the costs imposed by the regulations will
district director will no longer issue figures provided by the Milliman & not be significant.
initial findings. The Department has Robertson economic analysis with The industry submitted an additional
replaced the reference to § 725.413 in respect to the costs of litigating claims analysis by Milliman and Robertson to
the first sentence of subsection (d) with at various levels of adjudication. the Department in response to the
a reference to § 725.410(a)(3). This Rulemaking Record, Exhibit 80 at 42. second notice of proposed rulemaking.
change reflects a move to § 725.410 of The Department’s second notice of Rulemaking Record, Exhibit 89–37,
the district director’s authority to proposed rulemaking, however, Appendix A. That analysis abandons
dismiss potentially liable operators that undermined the assumption that all of the assumption that the Department’s
the district director has previously an employer’s defense costs would be regulations will cause the expenditure
notified. expended at the earliest stage of of $6,000 in defense costs in every case,
(c) One comment objects that the adjudication. Under the Department’s rather than only those that proceed
Secretary’s regulations preclude the first proposal, an employer would have beyond the district director level, and
dismissal of potentially liable operators been required to develop all of its replaces it with an assumption that
who can prove that they were not evidence regarding both its liability as claims defense costs will rise from their
current level of $6,314 to $12,000 under acknowledged that, as proposed, the operator on the Black Lung Disability
the new regulations. Rulemaking regulation required potentially liable Trust Fund, however. 62 FR 3355–56
Record, Exhibit 89–37, Appendix A at operators to develop and submit (Jan. 22, 1997). The Department believes
16. It is this analysis, apparently, that evidence in cases that ultimately did not that the additional demands placed
gives rise to the statement that the proceed beyond the earliest stage of upon potentially liable operators are not
second notice of proposed rulemaking adjudication. The Department stated unreasonable. In addition, the
will result in an additional $6,000 in that the district director’s receipt of this Department does not accept the
costs per claim. The economic analysis information was necessary, however, in criticism that the regulation sets traps
contains no explanation for its order to ensure that the correct parties for unwary litigants. The nature of the
assumption that defense costs will were named in those cases that did evidence required by the Department,
double under the new regulations. proceed to the Office of Administrative and the time limits for submitting that
Because the Department’s regulations Law Judges. The Department stated that evidence, are clearly set forth in the
will actually reduce the quantity of it did not believe that the cost of regulations, and will be communicated
medical evidence a party may submit developing this evidence would be to potentially liable operators who are
from former levels, eliminate the need significant. Finally, the Department notified of a claim by the district
to expend money on developing rejected the suggestion that it bifurcate director.
medical evidence in the majority of the administrative law judge’s The commenter also argues that the
cases, and eliminate potentially liable resolution of entitlement and liability Department’s revision is based on the
operators other than the designated issues. erroneous premise that operators are
responsible operator as parties to each (b) The Department has modified better able to obtain information about
case beyond the district director level, subsection (a)(1), and has added the their employment of the miner than is
the Department believes that the phrase ‘‘any of’’ to subsection (a)(3), to the government. The commenter states
assumption is incorrect. clarify the meanings of those sentences. that the situation is made more difficult
(e) No other comments have been (c) One comment argues that the where the employment relationship was
received concerning this regulation. Department’s revision of this regulation remote in time or if the miner worked
injects additional complexity, adds for many different companies. The
20 CFR 725.408 unnecessary burdens and expense in Department agrees that, in some cases,
(a) The Department proposed cases involving multiple operators, and it may be more difficult for employers,
eliminating 20 CFR § 725.408 (1999) in sets traps for unwary litigants. The and particularly for insurers, to readily
its first notice of proposed rulemaking, commenter also argues that the ascertain the facts of the miner’s
and replacing it with a regulation Department’s revision is based on the employment. Clearly, however,
designed to elicit necessary information erroneous premise that operators are operators and insurers are in a better
from a miner’s former employers. 62 FR always better informed as to their position to ascertain these facts than is
3355–56 (Jan. 22, 1997). As proposed, employment of the miner. The the Department of Labor. To the extent
§ 725.408 required any operator notified Department agrees that the revised that an employer or insurer has
of its liability under § 725.407 to file a regulations place additional burdens on difficulty in obtaining evidence in a
response within 30 days of its receipt of coal mine operators who have, in the specific case, it may ask that the time
that notification, indicating its intent to past, routinely filed form controversions period for developing this evidence be
accept or contest its identification as a of their liability for benefits and waited extended. The Department will provide
potentially liable operator. Specifically, until the case was referred to the Office the operators notified of a claim the
an operator that contests its liability was of Administrative Law Judges to information that it has, including a copy
required to admit or deny five assertions develop their defenses. In its first notice of the miner’s application and all
relevant to that liability: (1) That it of proposed rulemaking, the Department evidence relating to his coal mine
operated a coal mine after June 30, 1973; explained its intention to change this employment, § 725.407(c).
(2) that it employed the miner for a practice in order to provide the district (d) One comment argues that the 90-
cumulative period of not less than one director with sufficient information to day time limitation for an operator to
year; (3) that the miner was exposed to allow him to identify the proper submit documentary evidence in
coal mine dust while employed by the responsible operator. Requiring the support of its position as to liability
operator; (4) that the miner’s submission to the district director of all remains inadequate, and that, in any
employment with the operator included evidence relevant to the liability issue event, it should not commence until the
at least one working day after December has become even more important in the operator receives the claimant’s
31, 1969; and (5) that the operator is final revision of the Department’s rules. employment history, the Itemized
financially capable of assuming its As revised, the regulations will permit Statement of Earnings obtained from the
liability for the payment of benefits. The the district director to refer a case to the Social Security Administration, and,
regulation required the operator to Office of Administrative Law Judges where applicable, the policy number of
submit all documentary evidence with no more than one operator as a the insurance policy that the
relevant to these issues while the case party to the claim, the responsible Department believes provides
was pending before the district director, operator as finally designated by the appropriate coverage. The Department
within 60 days from the date on which district director. See § 725.418(d) and intends to make every effort to supply
the operator received notification. explanation accompanying § 725.414. a potentially liable operator notified of
In its second notice of proposed The regulations prohibit the remand of a claim with all of the information
rulemaking, the Department responded cases for the identification of additional pertinent to that notification. As noted
to comments that the 60-day time period potentially liable operators, or to allow above, this information will include a
was too short by enlarging it to 90 days. the district director to designate a new copy of the employment history
64 FR 54990–91 (Oct. 8, 1999). In responsible operator, thereby reducing provided by the claimant. The
addition, the Department observed, the delay in the adjudication of the merits Department will also provide the
period could be extended by the district of a claimant’s entitlement. This change applicable insurance policy number if it
director for good cause shown pursuant also places the risk that the district has it. Similarly, if the Department has
to § 725.423. The Department also director has not named the proper received the Itemized Statement of
Earnings, it will provide a copy to the problems for the limited pool of nothing in that Act requires an
potentially liable operator. The attorneys who currently represent administrative agency to structure its
Department’s receipt of that record, employers in black lung benefits cases, rules in order to preserve the ability of
however, depends on the speed with and will therefore deprive employers of a limited number of attorneys to
which the Department’s request is their right to the counsel of their choice. represent coal mine operators. Where
processed by the Social Security The Department acknowledges that the the state ethics rules require an attorney
Administration. It will not be possible revised regulations increase the to decline representation of a client, that
in all cases to supply that record to adversity among a miner’s former client is entitled to seek other counsel.
potentially liable operators at the time employers in any case in which the The Department does not believe that
they receive notification. The initial district director has designated as the coal mine operators will be unable to
information supplied to the operator responsible operator an operator other find competent counsel to represent
should nevertheless be sufficient to than the operator that most recently their interests. In fact, the Department
allow it to accept or reject its employed the miner. In such a case, has included two or more coal
notification as a potentially liable where the designated responsible companies as parties in cases under the
operator. If the operator needs operator may seek to develop evidence former regulations, see, e.g., Martinez v.
additional time to respond to that initial to show that a more recent employer Clayton Coal Co. et al., 10 Black Lung
notification, it may request an extension should be designated the responsible Rep. (MB) 1–24 (Ben. Rev. Bd. 1987)
of time for good cause shown pursuant operator, an attorney clearly could not (involving three coal mine operators),
to § 725.423. Operators are not limited represent both employers. Moreover, to and did not receive any reports that the
to a single extension of time in which the extent that the attorney has operators encountered problems in
to obtain this evidence, although a previously represented one of the obtaining representation.
district director may reasonably expect operators, the applicable ethical rules of (g) One comment states that the
the operator to demonstrate its diligence the attorney’s state bar may prevent the regulation denies mine operators a
prior to requesting an additional attorney from accepting representation reasonable opportunity to develop a
extension. of the other operator. In most cases, record. In its second notice of proposed
(e) Several comments have however, this problem will be more rulemaking, the Department explained
misconstrued the requirements of illusory than real. Most of the cases in its belief that the 90-day time period,
§ 725.408. Two comments argue that the which the Department will name more which may be extended for good cause,
proposal would shift the burden to the than one potentially liable operator will affords sufficient time for operators to
named responsible operator to be cases in which the miner’s most submit evidence relevant to their
investigate the proper responsible recent employer is out of business, and employment of the miner. 64 FR 54990
operator within 90 days and that the 90- had no insurance, or cannot be located. (Oct. 8, 1999). It cannot be emphasized
day time period is unrealistic for that As a general rule, these employers too often that the period provided by
purpose. One comment argues that the typically have not participated in the § 725.408 does not require the
revised regulations are objectionable adjudication of earlier black lung development of evidence relevant to the
because they make a responsible benefits claims. Accordingly, there will designation of other potentially liable
operator responsible not only for its be few, if any, attorneys who will be operators as the responsible operator.
own defense but also for the defense of unable to represent the designated That evidence will be submitted later, in
other potentially liable operators. This responsible operator. Moreover, in cases
accordance with the schedule
statement has never been true with established by the district director
in which the interests of potentially
respect to liability determinations, and, pursuant to § 725.410.
liable operators are not directly adverse, (h) One comment argues that the
under the Department’s final
state rules typically permit an attorney regulation creates an impermissible
regulations, is no longer true of
to represent a client, even if the attorney presumption and thus violates the
entitlement determinations. Another
has represented another party to the Supreme Court’s decision in Director,
comment argues that DOL’s rationale for
case previously, if the attorney obtains OWCP v. Greenwich Collieries, 512 U.S.
imposing this time limit on operators—
the consent of the previous client. 267 (1994). Section 725.408 does not
i.e., that operators have better access to
the claimant’s entire work record—is The Department recognizes that there create any presumptions. To the extent
flawed. Section 725.408, however, does may be a small minority of cases in that the commenter objects to any other
not govern the introduction of evidence which a true conflict is unavoidable. For presumption used to establish the
relevant to the liability of other example, if the miner’s most recent identity of the responsible operator
operators that employed the miner. employer, ABC Coal Co., denies that it liable for the payment of benefits, the
Instead, the evidence required by employed the claimant as a miner, the Department discussed similar objections
§ 725.408 is limited to evidence relevant Department may also name the miner’s in its second notice of proposed
to the notified operator’s own next most recent employer, XYZ Coal rulemaking, see 64 FR 54972–74 (Oct. 8,
employment of the miner and that Co., as a potentially liable operator. An 1999), and its response to comments
operator’s financial status. Documentary attorney who represented ABC in under § 725.495 of Subpart G of this
evidence relevant to another operator’s previous litigation could not now part.
liability is required later pursuant to the represent XYZ, whose interests are (i) One comment states the response
schedule established pursuant to directly adverse. The possibility of such time given potentially liable operators
§ 725.410(b), and in accordance with the a conflict, however, is not a limitation under § 725.408 should mirror the time
limitations set forth in § 725.414(b). on the Department’s efforts to revise the period given claimants to submit
Accordingly, the Department will regulations implementing the Black information in § 725.404. The
discuss these comments under Lung Benefits Act. The Administrative Department disagrees. Section 725.404
§§ 725.410 and 725.414. Procedure Act does guarantee a party provides that claimants must provide
(f) One comment argues that by the right to be represented by counsel the district director with a complete and
creating adversity among the miner’s during an administrative adjudication. 5 detailed employment history as well as
former employers, the Department’s U.S.C. 555(b). Contrary to the proof of age, marriage, death, family
revised regulations will create ethical commenter’s suggestion, however, relationship, dependency, or other
matters of public record. If the informal conferences, to ensure that the necessary. If further remand would be
information submitted by the claimant parties to a claim are provided with the pointless, the Director’s consent, which
is insufficient, the district director must district director’s reasons for holding an must be made in writing, would allow
give the claimant a specified reasonable informal conference. Thus, under the case to proceed on the merits of the
period of time within which to provide revised § 725.416, the district director is claimant’s entitlement to benefits. The
the information. Claimants applying for required to explain why he believes an Department has also added a new
benefits have a positive incentive to informal conference will assist in the sentence to subsection (c) to clarify the
supply this information; without it, the voluntary resolution of the issues in the effect of a denial of a claim by reason
district director is unable to complete case. The Department also rejected a of abandonment on a subsequent claim
processing of the case, and any award of suggestion that an administrative law filed by the same individual.
benefits will necessarily be delayed. In judge should be permitted to hear the (c) Several comments state that the
contrast, § 725.408 seeks information merits of claimant’s entitlement in a Department should refer a claim for a
from the claimant’s former employers, case in which the claimant has hearing on the merits even if the claim
who have no similar incentive to requested a hearing as to the district has been denied by reason of
provide information to the Department. director’s dismissal of the claim, and the abandonment. The Department
The regulation thus establishes a ALJ finds error in the district director’s disagrees. A claimant whose claim has
presumptively reasonable period of time denial of the claim by reason of been denied by reason of abandonment
within which an employer must provide abandonment. In response to this has suggested, by his actions, that he no
that information, and allows the comment, the Department added a longer wishes to pursue his claim for
employer to seek an extension of that sentence to subsection (c) of the benefits. Referring all of these cases to
period for good cause. Because regulation, to clarify its intent that an an administrative law judge for hearing
§§ 725.404 and 725.408 affect different administrative law judge must remand a would be pointless and inefficient. It is
parties with different incentives, and case for further administrative true that in some cases, the claimant
serve different purposes, the processing if he finds the district may have decided that he still desires
Department does not believe that the director erred in denying the claim. benefits, but believes that the action
time periods need be made identical. Finally, the Department rejected a required of him by the district director
(j) One comment urges that operators comment that the proposal would is unreasonable. Requiring these
be given the 60 days originally proposed increase the number of additional claimants to request an administrative
by the Department to respond to claims filed. law judge to resolve their dispute does
notification of potential liability rather not impose an unreasonable burden.
than 90. The Department has retained (b) Two comments continue to object Accordingly, the Department has not
the 90-day time period, which may be to the Department’s unwillingness to altered this requirement in the
extended for good cause, to allow an administrative law judge to regulation.
accommodate the operator community’s consider the merits of a claimant’s (d) Several comments request that the
general objection to the 60-day period entitlement to benefits if he finds that Department reconsider denying a claim
and to provide additional time, as a the district director improperly denied by reason of abandonment as an
matter of right, in that small percentage the claim by reason of abandonment. In appropriate sanction. Another comment
of cases in which the miner’s its second notice of proposed supports the denial. The Department
employment history is complex or in rulemaking, the Department explained explained its reason for using a denial
the distant past. that a denial by reason of abandonment by reason of abandonment where a
(k) No other comments were received may take place before the administrative claimant fails to attend an informal
concerning this regulation, and no other processing of the claim has been conference in its second notice of
changes have been made in it. completed, such as when a claimant proposed rulemaking. 64 FR 54991–92
unjustifiably refuses to attend a required (Oct. 8, 1999). The Department
20 CFR 725.409 medical examination. § 725.409(a)(1); 64 continues to believe that, although a
(a) The Department proposed revising FR 54991 (Oct. 8, 1999). The denial is a harsh sanction, it is the only
§ 725.409 in its first notice of proposed Department has reconsidered its valid sanction that may be imposed for
rulemaking to make explicit one basis complete prohibition on allowing an a claimant’s failure to participate in the
for denying a claim by reason of administrative law judge to resolve the adjudication process. A claimant whose
abandonment. The Department observed merits of a claim, however. Where the failure to participate is the result of
that the Court of Appeals for the Fourth parties have completed their submission simple negligence may avoid that
Circuit had confirmed the Department’s of evidence to the district director, and sanction by indicating his willingness to
use of the authority in subsection (a)(3) the district director has completed his comply with the district director’s
to dismiss a claim by reason of analysis of the evidence relevant to the initial instructions.
abandonment based on a claimant’s liability of all potentially liable (e) Several comments request that the
failure to appear at an informal operators, and has made a final Department reconsider its use of
conference. Wellmore Coal Co. v. designation of the responsible operator informal conferences. These comments
Stiltner, 81 F.3d 490, 497 (4th Cir. liable for the payment of benefits, the are more appropriately addressed under
1996). The Department proposed to add Department agrees that it would make § 725.416.
subsection (a)(4) to the regulation to no sense to require remand to the (f) No other comments were received
clarify that authority. In addition, the district director in the event the concerning this section.
Department proposed to clarify the administrative law judge overturns his
procedures for denying claims by reason denial by reason of abandonment. 20 CFR 725.410–725.413
of abandonment. 62 FR 3356 (Jan. 22, Accordingly, the Department has (a) In its first notice of proposed
1997). In the second notice of proposed revised subsection (c) to permit the rulemaking, the Department proposed
rulemaking, the Department explained Director, through the Office of the new §§ 725.410–725.413 in order to
that, because of the severe effect of a Solicitor, to make a case-by-base streamline the investigation and initial
dismissal, it had proposed revising determination as to whether remand for adjudication of claims for black lung
§ 725.416, the regulation governing further administrative processing is benefits. 62 FR 3356 (Jan. 22, 1997). The
proposed regulations provided for to permit an extension under § 725.423 The revised regulations thus eliminate
concurrent investigations into the of the one-year time period. certain responses that previously would
medical issues surrounding the (b) A number of comments continue have been required following issuance
claimant’s eligibility and the identity of to object to the Department’s proposal of the proposed initial findings. In
the operator liable for the payment of with respect to the initial adjudication addition, they eliminate the one-year
any benefits. Under the proposed of claimant eligibility and operator period of time that the proposal would
regulations, those investigations would liability. Among other things, these have provided a claimant to respond to
have culminated in an initial finding commenters criticize the increased the initial finding. Two commenters
containing the district director’s formality and complexity of the continued to object to that time period.
preliminary resolution of both issues. If proposed procedure; the burdensome Instead, all parties will have the
any party indicated dissatisfaction with requirement that operators must statutory period, one year, to file a
the initial finding, the district director respond to initial findings in all cases; request for modification after the district
would have proceeded to an initial and the Department’s failure to honor director’s proposed decision and order
adjudication of the claim and would premature hearing requests. In response becomes effective. The proposed
have established a schedule for the to these comments, the Department has decision and order becomes effective 30
submission of evidence. The proposed reconsidered the procedural rules days after issuance, see § 725.419.
regulations included a number of governing district director claims By replacing the notice of initial
significant changes. For example, the processing, and has altered the proposal finding with a less formal schedule for
Department stated that it would not in a number of significant respects. the submission of additional evidence,
honor hearing requests made before the (i) The Department will no longer the Department hopes to further its goal
conclusion of administrative issue an initial finding of claimant of providing more easily understood
proceedings. In addition, the eligibility and operator liability. Instead, documents. The schedule will
Department provided claimants with up following the development of certain summarize the medical evidence
to one year to respond to an initial medical evidence under § 725.405, developed by the Department, and
finding. including the complete pulmonary provide a clear explanation of why that
evaluation authorized by § 725.406, and evidence may fail to establish a
In its second notice of proposed the submission of evidence relevant to claimant’s entitlement to benefits. In
rulemaking, the Department did not the employment of the miner by addition, the schedule will provide a
discuss §§ 725.410, 725.412, or 725.413. potentially liable operators notified clear explanation of the steps remaining
See list of Changes in the Department’s pursuant to § 725.407, the district in the district director’s claim
Second Proposal, 64 FR 54971 (Oct. 8, director will issue a schedule for the processing. A number of commenters
1999). The Department did discuss submission of additional evidence. had objected to the complexity of the
§ 725.411, although it did not propose § 725.410. This schedule will notify the Department’s proposed procedures, and
any additional changes to that parties of the district director’s the Department believes that this
regulation. Instead, the Department preliminary evaluation of the evidence simplified, revised process will
advised all interested parties that it regarding the miner’s eligibility, but will eliminate confusion.
intended to substantially revise the not require a formal response as to (ii) The schedule will also contain the
documents used in connection with the eligibility from any party. In the event Department’s preliminary designation of
issuance of an initial finding under that the district director concludes that the responsible operator liable for the
§ 725.411. The Department noted its the evidence supports an award of payment of claimant’s benefits. Along
commitment to improve the quality of benefits, and there is no operator that with the schedule, the district director
the information provided to parties to may be held liable for the payment of will supply all potentially liable
the adjudication of black lung claims. benefits, § 725.411 requires the district operators with a copy of the evidence
The Department hoped that improved director to issue immediately a needed to meet the Director’s initial
communication would make district proposed decision and order awarding burden of proof under § 725.495, if such
office claims processing easier to benefits payable by the Black Lung a showing is necessary. Within 30 days
understand and would also give Disability Trust Fund. In such a case, of the date on which the schedule is
claimants a clearer picture of the the district director will not issue a issued, the designated responsible
medical evidence developed in schedule for the submission of operator must either agree or disagree
connection with their claims. It was additional evidence because no further with the district director’s designation.
hoped that with better information, evidentiary development is needed. In If it disagrees, it must submit any
claimants would be able to make more the event the district director’s evidence regarding the liability of other
informed decisions as to how to preliminary evaluation of the medical operators in accordance with the district
proceed. In response to a number of evidence in a Trust Fund case weighs director’s schedule. The schedule must
comments, the Department stated that a against a benefits award, the district provide a minimum of 60 days to
hearing request filed within one year of director will issue a schedule allowing submit evidence pertaining to both
the initial finding would constitute a the submission of additional medical responsible operator liability and the
request for further adjudication of the evidence, but the claimant need not claimant’s entitlement, and an
claim. The Department also discussed respond. Instead, the claimant may wait additional 30 days to respond to other
its decision not to honor premature until the issuance of the proposed parties’ evidence. These periods may be
hearing requests, i.e., requests for decision and order, which will provide extended pursuant to § 725.423 for good
hearing made before the district director him 30 days within which to request a cause shown. In addition, the
issued a proposed decision and order. hearing. Similarly, an operator need not designated responsible operator may,
Additionally, the Department rejected respond to a district director’s schedule but does not have to, agree that the
the suggestion that the one-year for the submission of evidence. Silence claimant is entitled to benefits. Silence
response time to an initial finding on an operator’s part as to the claimant’s on this issue for 30 days after the
impermissibly extended a claimant’s entitlement to benefits after issuance of district director issues a schedule will
modification rights. Finally, the the district director’s schedule will be be deemed a decision to contest the
Department explained its decision not deemed a contest of that entitlement. claimant’s benefit entitlement sufficient
to make the responsible operator liable the requirements for the development of proposed revisions to these regulations
for a reasonable attorney’s fee if the documentary medical evidence in remain relevant.
claimant successfully prosecutes his §§ 725.414 and 725.456, and has
20 CFR 725.414
claim. increased the opportunities for
(iii) The Department has also deleted submitting such evidence outside the (a) In its first notice of proposed
the language in proposed § 725.411 periods established by § 725.410. The rulemaking, the Department proposed to
which would have rendered invalid Department has not modified, however, limit the quantity of documentary
premature hearing requests. the requirement contained in the medical evidence that parties to a claim
Accordingly, the Department will original proposal, that all documentary would be able to submit. Specifically,
continue its current practice of evidence pertaining to operator liability the Department’s initial proposal would
following the decision in Plesh v. must be submitted to the district have permitted the claimant and the
Director, OWCP, 71 F.3d 103, 111 (3d director in the absence of extraordinary party opposing the claimant’s
Cir. 1995). Under that decision, the circumstances. In a small number of entitlement each to submit the results of
Department may complete its claims, the responsible operator no more than two complete pulmonary
administrative processing of the claim, designated by the district director may examinations or consultative reports,
but must forward a claim for a hearing wish to submit documentary evidence and one review of each of its opponent’s
at the conclusion of that processing if to meet its burden of establishing that diagnostic studies and examinations.
the claimant has previously filed a another employer of the miner should Parties could submit additional
request for a hearing and that request be the responsible operator. The documentary medical evidence only by
has not been withdrawn. The Department estimates that these cases demonstrating extraordinary
Department has revised § 725.418 to will represent less than 10 percent of all circumstances. In proposing this
accomplish this result and to extend responsible operator claims. The limitation, the Department
similar treatment to operators. See Department recognizes that, in some of acknowledged the concerns of the Court
response to comments under § 725.418. these cases, the initial 60-day period of Appeals for the Sixth Circuit in
(c) Two comments submitted in may be insufficient to allow the Woodward v. Director, OWCP, 991 F.2d
connection with the Department’s first designated responsible operator to 314, 321 (6th Cir. 1993). In that
notice of proposed rulemaking, and complete its development of the decision, the court noted the superior
renewed in connection with the necessary evidence. In such a case, financial resources of some parties
Department’s second notice of proposed allowed the development of a greater
however, the operator may request that
rulemaking, argue that the Department’s quantity of evidence with the result that
the district director grant it additional
proposed § 725.413 improperly transfers the ‘‘truth-seeking function of the
time. In addition, if the district director
adjudication powers from the administrative process is skewed and
finds the evidence submitted by the
administrative law judge to the district directly undermined.’’ 991 F.2d at 321.
designated responsible operator
director in violation of the 62 FR 3356–61 (Jan. 22, 1997). In cases
persuasive, he may designate a different
Administrative Procedure Act. The in which the Department named more
operator as the responsible operator
Department disagrees. The regulations than one potentially liable operator as a
only after he provides that operator,
currently permit the district director to party to the claim, the proposal
pursuant to § 725.410, with at least 60
issue a proposed decision and order. delegated responsibility for the
additional days to develop its own development of documentary medical
Any party aggrieved by the proposed
evidence relevant to both the liability evidence to the responsible operator
decision and order may request a formal
and eligibility issues. Finally, in a case designated by the district director. Other
hearing before the Office of
in which the operator encounters operators would be permitted to submit
Administrative Law Judges, making the
district director’s factual findings particular difficulty in obtaining the documentary medical evidence, up to
irrelevant. If no party objects to the necessary evidence, it may be able to the limit of two medical evaluations per
proposed decision and order, however, establish the existence of ‘‘extraordinary side, only by showing that the
it becomes final. 20 CFR 725.419 (1999). circumstances’’ permitting the designated responsible operator had not
The revised regulations continue that introduction of such evidence after the undertaken a full development of the
procedure. They do not deny any party case is referred to the Office of evidence and that, without it, the
the right to an adjudication of contested Administrative Law Judges. No changes potentially liable operator was unable to
issues by an administrative law judge, are necessary in response to these secure a full and fair litigation of the
as provided by both the Administrative comments. claimant’s eligibility.
Procedure Act, 5 U.S.C. 556, and section (e) One comment submitted in The Department also proposed to
19 of the Longshore and Harbor connection with the Department’s first require that all documentary evidence—
Workers’ Compensation Act, 33 U.S.C. notice of proposed rulemaking objects to evidence relevant to operator liability as
919, as incorporated by 30 U.S.C. 932(a). the district director’s authority to well as medical evidence relevant to a
(d) Several comments submitted in reinstate an operator which has been claimant’s eligibility—be submitted
connection with the Department’s first dismissed. This authority is necessary to while the case was pending before the
notice of proposed rulemaking state that correct erroneous dismissals, especially district director. Like the limitation on
the time frames for developing and since an operator can not be named a the quantity of medical evidence, the
submitting evidence to the district party to a claim once a case is referred required submission of evidence to the
director are too short. These time to the Office of Administrative Law district director was made subject to an
frames, which have been moved from Judges for a hearing on the merits, extraordinary circumstances exception.
proposed § 725.413(c)(2) to § 725.410(b), § 725.407(d). The remainder of the The Department observed that this
set only the minimum periods for commenter’s objections pertain more proposal would end parties’ current
evidentiary submissions. Section properly to § 725.414, and are addressed practice of delaying the development of
725.423 allows any party to request under that regulation. evidence on both issues until a claim
additional time within which to take a (f) In light of the extensive changes to was referred to the Office of
required action if good cause is shown. §§ 725.410–.413, none of the other Administrative Law Judges. It would
In addition, the Department has relaxed comments received concerning the also provide district directors with a
better evidentiary record on which to standard that would allow a party to simplify and streamline the processing
adjudicate a claim. The proposal would exceed that limitation. Accordingly, the of claims at the district director level.
have required parties to identify all of Department replaced the ‘‘extraordinary For example, the final rules eliminate
their witnesses while a case was circumstances’’ exception with a ‘‘good certain party responses formerly
pending before the district director. cause’’ standard that would be easier to required to be filed with the district
Finally, the Department explained that meet in appropriate cases. The director, and thus reduce the parties’
both proposed revisions were Department also clarified the types of transaction costs. Similarly, in these
permissible exercises of the broad documentary medical evidence that final rules, the Department has
regulatory authority granted the parties would be entitled to submit, in simplified the adjudication of claims
Department under the Black Lung order to resolve some of the ambiguities beyond the district director level by
Benefits Act. presented by its original proposal. permitting the district director to refer a
The Department proposed several Specifically, the Department proposed case to the Office of Administrative Law
significant revisions in its second notice that a party’s affirmative case be limited Judges with only one designated
of proposed rulemaking. 64 FR 54992– to two chest X-ray interpretations, the responsible operator as a party to the
96 (Oct. 8, 1999). Responding to results of two pulmonary function claim. See explanation accompanying
numerous comments, the Department studies, two arterial blood gas studies, §§ 725.415, 725.416, 725.417, 725.418,
withdrew its proposed requirement that and two medical reports. In rebuttal, and 725.421.
all documentary medical evidence be each party would be able to submit one The Department recognizes that this
submitted to the district director. piece of evidence analyzing each piece solution may slightly increase the Black
Instead, the Department proposed to of evidence submitted by the opposing Lung Disability Trust Fund’s liability. In
retain the current procedures, allowing side. For example, an operator could the event the responsible operator
parties to submit documentary medical have each of the claimant’s chest X-rays designated by the district director is
evidence to the Office of Administrative reread once, and could submit one adjudicated not liable for a claim, the
Law Judges up to 20 days prior to the report challenging the validity of each Black Lung Disability Trust Fund will
formal hearing. See preamble to pulmonary function test submitted by pay any benefit award. The
§ 725.456. The Department did not the claimant. The Department also Department’s proposals, on the other
revise its proposal with respect to provided the parties with an hand, would have subjected the Trust
documentary evidence relevant to the opportunity to rehabilitate the evidence Fund to liability only where the miner
issue of operator liability, however. Any they had submitted in connection with
such evidence that was not submitted to was not employed by any operator that
their affirmative case that had been the met the criteria for a potentially liable
the district director could be submitted subject of rebuttal. The second proposal
to the administrative law judge only operator, or where the district director
justified the medical evidentiary had not named as a party to the claim
upon a showing of extraordinary limitations as applied to multiple
circumstances. The Department the operator ultimately held to be the
potentially liable operators named as responsible operator. The Department’s
observed that this proposal represented parties to the same claim. Finally, the
a weighing of the claimant’s interest in final regulations create Trust Fund
Department clarified the provision in liability in different circumstances:
the prompt adjudication of his subsection (a)(4) as allowing the
entitlement against the interest of the where the district director’s designation
submission of hospital records and any of the responsible operator proves to be
Department in protecting the Black other treatment records relating to the
Lung Disability Trust Fund from incorrect. For example, if the miner’s
mine’s respiratory or pulmonary most recent employer, ABC Trucking
unwarranted liability. Under the
condition without regard to the Co., argues that it did not employ the
Department’s proposal, the Director,
evidentiary limitations elsewhere in the claimant as a miner, the proposal would
OWCP, would be unable to have a case
regulation. have permitted the district director to
remanded to the district director for the
development of additional evidence as (b) A number of comments continue retain, as parties to the claim, the
to operator liability once a case was to object to the proposed requirement miner’s prior employers as fallback
referred to the Office of Administrative that more than one potentially liable potentially liable operators. Under the
Law Judges for an adjudication of the operator might be retained as a party to final regulation, however, if the district
merits. This provision helped to ensure a claim and might have to participate in director designates ABC as the
the prompt adjudication of the a joint defense of the claimant’s responsible operator, and the ALJ
claimant’s entitlement. The procedure eligibility for benefits subject to the awards benefits but finds that the
also subjected the Trust Fund to the same medical evidentiary limitations as miner’s next most recent employer, XYZ
risk, however, that a district director would be present in a case involving Coal Co., should have been the
would not name the correct operator as only one operator. The Department responsible operator, benefits will be
a party to the claim before the case was proposed this requirement in order to payable by the Trust Fund. The
referred to OALJ. Such a risk could be ensure that a claimant in a multiple Department intends that, once a claim is
justified only if the district director was operator case—a case in which the referred to the Office of Administrative
able to examine all of the documentary identity of the responsible operator was Law Judges, the Department shall not be
evidence relevant to the issue of in doubt—would not have to face more able to impose liability for that claim on
operator liability. documentary medical evidence than a any operator other than the one finally
Although numerous comments had claimant whose eligibility was opposed designated as responsible operator by
objected to the Department’s limitation by only one potentially liable operator. the district director, whether through
on the quantity of medical evidence, the On further reflection, however, the remand by the administrative law judge
Department did not propose to alter that Department has decided not to retain or through modification of a finally
limitation. In order to accommodate the more than one potentially liable awarded claim. This limitation will
differing circumstances of individual operator as a party to each case after the eliminate a major source of delays in the
cases, however, and to ensure that all case is referred to the Office of adjudication of claims, and prevent a
parties were given due process, the Administrative Law Judges. The final claimant from having to relitigate his
Department proposed revising the revisions to the regulations attempt to entitlement to benefits. To the extent
that a denied claimant files a record all of the evidence submitted effect. Because the Department
subsequent claim pursuant to § 725.309, while the case was pending before him. withdrew its first proposal requiring
of course, the Department’s ability to As revised, however, the regulation may that all medical evidence be submitted
identify another operator would be require the exclusion of some evidence to the district director, see paragraph (a),
limited only by the principles of issue submitted to the district director. In the above, the Department expects that
preclusion. For example, where the more than 90 percent of operator cases parties generally will not undertake the
operator designated as the responsible in which there is no substantial dispute development of medical evidence until
operator by the district director in a over the identity of the responsible the case is pending before the
prior claim is no longer financially operator, most of the evidence available administrative law judge. Certainly, if
capable of paying benefits, the district to the district director will be the the designated responsible operator
director may designate a different medical and liability evidence believes itself not to be liable for a given
responsible operator. In such a case, submitted pursuant to the schedule for claim, it might defer the development of
where the claimant will have to the submission of additional evidence, medical evidence while developing
relitigate his entitlement anyway, the § 725.410. In the remaining cases, evidence relevant to liability.
district director should be permitted to however, the district director may alter Accordingly, in the overwhelming
reconsider his designation of the his designation of the responsible majority of cases, there will be no
responsible operator liable for the operator after reviewing the liability evidence that the district director will
payment of the claimant’s benefits. evidence submitted by the previously be required to exclude from the record.
The Department does not believe that designated responsible operator. For The Department recognizes, however,
the risk of increased Trust Fund liability example, he may decide that the the theoretical possibility that a
is significant. Serious disputes about the evidence submitted by ABC Trucking claimant may have to undergo
identity of the responsible operator arise Co. establishes that the claimant did not additional physical examination and
in less than 10 percent of claims. In work as a miner for that company, and testing. In the example discussed above,
addition, the regulations still require may designate the claimant’s next most if ABC Trucking had submitted the
that all of the documentary evidence recent employer, XYZ Coal Co., as the result of its examination and pulmonary
relevant to the issue of operator liability responsible operator. In such a case, the testing, XYZ could, if it chose not to use
be submitted to the district director, and regulations require that the district ABC’s evidence, require the claimant to
that all of the potential witnesses as to director issue another schedule for the submit to an additional examination.
this issue be identified. In fact, the submission of additional evidence in The Department does not believe that
Department’s willingness to accept the order to give XYZ Coal the opportunity this is a likely scenario, however, even
risk that the district director’s to submit additional evidence bearing in cases in which the district director
designation will be incorrect reinforces on its liability for benefits. If the district changes his designation of the
the need for both of those requirements. director ultimately concludes that XYZ responsible operator.
Thus, the district director will be able should be designated the responsible (c) Two comments dispute the
to make a determination as to the operator, the regulation requires him to Department’s observation, in its second
identity of the responsible operator exclude the medical evidence notice of proposed rulemaking, 64 FR
based on the same information that will previously developed by ABC, unless 54996 (Oct. 8, 1999), that autopsy and
be available to the administrative law XYZ adopts that evidence as its own, biopsy reports are generally not
judge. In such circumstances, the § 725.415(b). The Department has
developed in connection with a claim,
Department believes that any additional and that those reports need not be
revised § 725.415(b) to defer the
risk of liability imposed on the Trust addressed in the Department’s
development of any additional medical
Fund is acceptable. evidentiary limitations. The Department
The Department has made extensive evidence in such a case until after the
has reconsidered its earlier proposal
revisions to § 725.414 to implement this district director has completed his
allowing the admission of these reports
change. Subsection (a)(3)(iv) and the analysis of all evidence pertaining to
without regard to number, and agrees
introductory paragraph of subsection operator liability and has made a final
that the evidentiary limitations of
(a)(3) have been deleted, and references responsible operator determination. At
§ 725.414 should be revised.
to potentially liable operators other than that point, the responsible operator will
Accordingly, the regulation now permits
the designated responsible operator have an opportunity, if it was not the each side to submit, as part of its
have been removed from subsections initially designated responsible affirmative case, one report of an
(a)(2)(ii), (a)(3)(i), (a)(3)(ii), and (c). The operator, to develop its own medical autopsy and one report of each biopsy.
Department has revised subsection evidence or adopt medical evidence Subsections (a)(2)(i) and (a)(3)(i) have
(a)(3)(iii) to reflect the Trust Fund’s submitted by the initially designated been revised accordingly. In addition,
right to develop evidence in a case in responsible operator. Because the the Department has revised subsections
which the district director has notified district director will not be able to (a)(2)(ii) and (a)(3)(ii) to allow each side
one or more potentially liable operators determine which medical evidence to submit one report in rebuttal of an
of their liability pursuant to § 725.407, belongs in the record until after this autopsy report and one report in
but has subsequently dismissed all of period has expired, the Department has rebuttal of each biopsy report offered by
the operators. The revised regulation revised §§ 725.415(b) and 725.421(b)(4) the opposing side. The Department has
also recognizes the Trust Fund’s right to to ensure that the claimant and the party also deleted the reference to autopsy
develop and submit evidence relevant to opposing entitlement are bound by the and biopsy reports in subsection (a)(4),
the compensability of a claimant’s same evidentiary limitations. the catch-all provision permitting the
medical benefits. The Department has Accordingly, the Department has introduction of evidence that is not
also revised subsections (b)(1) and (b)(2) deleted the requirement in addressed elsewhere in § 725.414.
to clarify the meaning of the regulation. § 725.414(a)(6) that the district director (d) Several comments object to the
In addition, the Department has admit into the record all of the medical Department’s proposed addition of
deleted subsection (a)(6). As proposed, evidence that the parties submit. subsection (e). This provision, which
subsection (a)(6) would have required The Department does not expect the tracks the current regulation at 20 CFR
the district director to admit into the deletion to have a significant practical 725.414(e)(1) (1999), would have
prohibited the introduction of evidence submit in the adjudication of a black pulmonary evaluation. Each of these
before an administrative law judge lung claim. Among other things, they reports may be based on independent
which was obtained by a party while the argue that the proposed limitations medical testing. Accordingly, the
claim was pending before a district violate § 413(b) of the Black Lung Department does not agree that the
director but which was withheld from Benefits Act, 30 U.S.C. 923(b), which evaluation of the claimant’s medical
the district director or any other party. requires the consideration of ‘‘all status will be less than complete and
Another comment states that the relevant evidence,’’ and infringe on the thorough. Moreover, the Department
subsection is meaningless since it rights of coal mine operators under the does not agree that requiring the parties
suggests that withheld evidence must be due process clause of the Constitution. to develop medical evidence meeting
admitted upon the request of a party, The Department has previously certain quality standards, §§ 718.102—
even absent a showing of extraordinary addressed both arguments. In its first 718.107, will result in an unfair
circumstances. The Department agrees notice of proposed rulemaking, the adjudication of the claimant’s
that this provision should be deleted. Department explained that § 413(b), entitlement to benefits.
See preamble to § 725.456, paragraph which is contained in Part B of the (g) One comment suggests that the
(b). Accordingly, subsection (e) has been Black Lung Benefits Act, was Department’s rationale for its proposed
deleted. A corresponding change has incorporated into Part C, governing change is insufficient, and that
been made to § 725.456. adjudications by the Department of anecdotal evidence of a few cases in
(e) A number of comments argue that Labor, ‘‘to the extent appropriate.’’ 30 which coal mine operators submitted a
the Department should limit the U.S.C. 940. The proposed evidentiary large volume of evidence does not
claimant and the party opposing limitations thus represent the extent to demonstrate that the current procedure
entitlement to one examination and one which the Department believes that is unfair. The commenter further argues
set of pulmonary testing. Thus, instead medical evidence should be submitted that the former system, developed under
of being able to submit the results two for consideration by the factfinder. In the Administrative Procedure Act, is a
pulmonary function studies and two addition, the Department has noted that fair system. The Department agrees that
arterial blood gas studies, each party § 413(b) does not require the admission the APA generally provides a fair basis
would be entitled to submit only one set of all evidence simply because that for the adjudication of parties’ interests
of test results. One commenter states evidence could be described as relevant, in the administrative context. In its first
that this revision would simply and that the Department was free to notice of proposed rulemaking,
maintain the status quo with respect to prescribe conditions under which however, the Department demonstrated
testing. The Department disagrees. The evidence would be admissible in black that Congress did not explicitly impose
former regulations do not limit the lung adjudications. 62 FR 3358–59 (Jan. the requirements of the APA on
number of test results a party may 22, 1997). The Department discussed adjudications under the Federal Mine
submit, and evidentiary records often the requirements of the due process Safety and Health Act. See 62 FR 3359
contain a substantial number of such clause in its second notice of proposed (Jan. 22, 1997). In addition, the
tests. The Department recognizes that rulemaking. The Department observed Department expressed its preference for
the testing may be difficult for some that a due process analysis involves a bright-line test that allows
claimants. In the absence of good cause, weighing the potentially disparate adjudication officers to resolve issues of
the Department’s regulations limit the interests of a number of parties. 64 FR eligibility based on the quality of the
maximum total number of tests to five 54994–95 (Oct. 8, 1999). In the
medical evidence developed by the
in the vast majority of cases involving parties rather than merely the quantity
Department’s view, the regulation
a designated responsible operator (four of evidence that parties with superior
achieves the correct balance,
in a case in which the Black Lung financial resources may be able to
particularly in light of the Department’s
Disability Trust Fund will be liable for submit. The Department continues to
decision to permit parties to exceed the
the payment of any benefits), and spread believe that the adjudications that will
numerical limitations on documentary
these tests out over time. The first such take place under these revised
medical evidence upon a showing of
test will be performed in connection regulations will result in fairer, more
good cause. To the extent that these
with the complete pulmonary credible evaluations of black lung
commenters objected, on due process
evaluation shortly after the claimant claims than the former system
grounds, to the requirement that
files his application, § 725.406. The last permitted.
test will most likely be performed potentially liable operators other than (h) One comment argues that the
shortly before the formal hearing, as the responsible operator defer to the ‘‘minimum’’ number of examinations
parties seek to complete the responsible operator’s development of that may be submitted by the parties is
development of their evidence before medical evidence, those objections have not equal. The commenter also objects
the twentieth day prior to the hearing, been rendered moot by the Department’s that the claimant is entitled to travel a
as required by § 725.456(b)(2). It would revisions permitting only one longer distance to obtain his medical
not be appropriate to further limit the designated responsible operator to be evidence than the employer is
testing that a claimant must undergo. included as a party to a case before the authorized to send him to obtain its
An operator who wishes to submit the Office of Administrative Law Judges. medical evidence. Specifically, the
results of two physical examinations The Department also cannot accept commenter states that a claimant could
performed in accordance with § 718.104 the assertion, made by several travel less than one hundred miles away
is entitled to have the physicians who commenters, that the numerical limits for the complete pulmonary evaluation
perform those examinations administer are fundamentally unfair, and that they provided by the Department under
appropriate testing, see § 718.104(a)(6). will result in inaccurate and incomplete § 725.406, but then travel a longer
Accordingly, the Department has not evaluations of the claimant’s pulmonary distance to obtain a subsequent
changed the regulation in this respect. condition. In cases involving a coal examination at his own expense.
(f) A number of comments continue to mine operator, the record may contain Because the limitation on the travel an
object generally to the Department’s up to five medical reports—two operator can require is tied to the
proposed limitations on the quantity of submitted by the claimant, two by the distance traveled for the § 725.406
medical evidence that parties may operator, and the results of the complete evaluation, the commenter argues that
the claimant could in fact travel much radius thus may seek permission to send Department’s second notice of proposed
farther than the operator is permitted to the claimant further. rulemaking, the progressive nature of
send him in obtaining its evidence. The (i) Three comments suggest that the pneumoconiosis should not constitute
commenter’s emphasis on a ‘‘minimum’’ determination as to whether additional ‘‘good cause’’ for the submission of
number of medical reports is puzzling; evidence would provide only marginal additional evidence because it is
since parties on both sides remain free utility should not be made by regulation scientifically unsupported. In its second
not to submit any medical evidence, the of the Department of Labor but by notice of proposed rulemaking, the
Department believes that the commenter administrative law judges on a case-by- Department had suggested that the
refers to the maximum permissible case basis. These commenters contend it progressive nature of the disease might
number of reports and tests. That is up to administrative law judges to justify an administrative law judge’s
limitation is equally balanced. Unless determine when evidence is cumulative finding of good cause to admit
the administrative law judge finds that and that the Department should not documentary medical evidence in
good cause justifies the admission of micromanage the adjudicatory process. excess of the § 725.414 limitations when
The Department has previously both parties had fully developed their
additional evidence, each side may
expressed its preference for a ‘‘bright- evidence prior to the hearing but the
submit up to two medical reports, two
line’’ limitation over the ad hoc hearing had to be rescheduled due to
chest X-ray interpretations, the results
determinations of individual weather conditions. 64 FR 54994–95
of two pulmonary function studies and adjudication officers. 62 FR 3357 (Jan. (Oct. 8, 1999). The commenter suggests
arterial blood gas studies, one report of 22, 1997). Where the circumstances that a claim of regression should be
each biopsy, and one autopsy report. compel a determination of whether automatic good cause. The Department
The Department believes that the additional medical evidence should be has discussed the evidence
limitation applicable to each type of allowed, i.e., upon an allegation of good demonstrating the progressive nature of
evidence per side represents an cause for submitting medical evidence pneumoconiosis in its response to
inherently fair way of ensuring that the in excess of the evidentiary limitation, comments under § 725.309. The
adjudication officer’s focus is on the that determination will be made by Department does not agree that a bare
quality of the evidence submitted rather administrative law judges. The need for claim of ‘‘regression’’ should entitle a
than on its quantity. To the extent that such a determination in some cases, coal mine operator to exceed the
the comment refers to the claimant’s however, does not obviate the more § 725.414 evidentiary limitations. The
ability to select the physician to perform compelling need for a general rule example provided by the Department
the complete pulmonary evaluation limiting the amount of medical evidence was intended to illustrate one of the
from among those on the Department’s that parties may submit in black lung circumstances in which the ‘‘good
list, the Department has responded to benefits claims. The Department cause’’ exception might apply; it was
that comment under § 725.406. See believes that it should be incumbent on not intended to provide an automatic
preamble to § 725.406, paragraph (b). the party seeking to exceed that limit to right to submit documentary medical
With respect to the travel demonstrate good cause for submitting evidence in excess of the limitations in
requirements, the Department believes additional evidence. any particular case.
that a coal mine operator should not be (j) One comment argues that the (l) One comment states that the ‘‘good
entitled to wait to develop its medical Department should include the ‘‘good cause’’ exception is unnecessarily
evidence until after the claimant has cause’’ exception in § 725.414 as well as complex and leaves many unanswered
in § 725.456, and that its failure to do questions. The commenter poses a
finished his evidentiary development in
so represents a trap for the unwary. The hypothetical situation involving a
order to learn how far it may ask the
Department does not agree that the claimant’s submission of an additional
claimant to travel. The complete
‘‘good cause’’ exception needs to be report of examination, and asks what
pulmonary evaluation offers the
repeated in § 725.414. As a practical additional evidence the opposing party
claimant the opportunity to travel
matter, the Department’s removal of the may submit in response or in rebuttal.
anywhere in his state or any contiguous requirement that parties submit all of The Department does not believe that
state at Departmental expense. The their documentary medical evidence the regulation or this preamble can
Department does not believe that a before the district director will generally explicitly anticipate every conceivable
claimant will deliberately select a closer cause parties to delay the development situation that may arise in the
physician for this examination and then of their evidence until a case reaches the adjudication of claims. Instead, the
pay for his own travel to a more distant administrative law judge. Thus, the Department fully expects that
location for either of the two medical Department does not anticipate that administrative law judges will be able to
reports that he is entitled to submit. there will be many occasions on which fashion a remedy in all cases that both
Accordingly, the Department believes a party would ask the district director, permits the party opposing entitlement
that the distance a claimant travels for rather than the administrative law to develop such rebuttal evidence as is
the complete pulmonary evaluation, or judge, to find ‘‘good cause’’ to exceed necessary to ensure a full and fair
100 miles, whichever is greater, the numerical limitations of § 725.414. adjudication of the claim, and retains
represents a proper limitation on a coal In any event, because any finding on the principle inherent in these
mine operator’s ability to compel the this issue by the district director would regulations that the fairest adjudication
claimant to travel. Moreover, the be subject to de novo review by an of a claimant’s entitlement will occur
regulation’s proscription on additional administrative law judge, the when the factfinder’s attention is
travel is not absolute. Like the former Department does not believe that the focused on the quality of the medical
regulation, 20 CFR 725.414(a)(1999), absence of an explicitly stated ‘‘good evidence submitted by the parties rather
which subsection (a)(3)(i) mirrors, cause’’ exception while a case is than on its quantity.
subsection 725.414(a)(3)(i) permits an pending before the district director will (m) One comment argues that the
operator to request the district director impair the parties’ development of Department’s regulations improperly
to authorize a trip of greater distance. evidence. deny a dismissed operator the right to
Operators who are unable to find a (k) One comment argues that, contrary defend itself, in violation of the Black
qualified physician within the 100-mile to the opinion expressed in the Lung Benefits Act, the Longshore and
Harbor Workers’ Compensation Act, and another schedule for the submission of district director must have sufficient
the Administrative Procedure Act. additional evidence under § 725.410, authority to permit the parties to submit
Under the regulations, if an operator is designating a new responsible operator additional evidence on the liability
dismissed by the district director, and is and providing that operator with time issue. Accordingly, the Department does
not reinstated before a case is referred within which to submit its own not view the authority provided the
to the Office of Administrative Law evidence relevant to the liability issue. district director as excessive.
Judges, it may not be held liable for If, after reviewing that operator’s (e) One comment states that
benefits. Such an operator will therefore evidence, the district director decides eliminating the requirement in
not need to defend itself. If the district that his first designation was correct, he § 725.414, as initially proposed, that all
director dismisses an operator and later may not allow the second designated documentary medical evidence be
realizes that he did so incorrectly, he responsible operator to develop any submitted to the district director has
may reinstate that operator but must additional medical evidence. If, also eliminated the need to strengthen
provide it with an opportunity, under however, he decides that his second the integrity of the district director’s
§ 725.410, to develop additional designation was correct (or proceeds to adjudication. The Department disagrees.
evidence. Consequently, the Department a third or fourth designation), he must In light of the Department’s final
does not agree that the regulations limit provide the operator that he finally revisions, the proposed decision and
the rights of dismissed operators. determines to be the responsible order will be the only decisional
(n) One comment states that the operator with the opportunity to submit document that the district director
requirement that a party identify a medical evidence. That operator may issues addressing the claimant’s
testifying witness while a claim is develop its own evidence, or may adopt eligibility for benefits and the liability of
pending before the district director is any evidence previously submitted by a responsible operator for the payment
unreasonable and onerous, and that it an operator. In either case, the finally of those benefits. A substantial number
diminishes the authority of designated responsible operator is of claimants currently accept the district
administrative law judges. This subject to the evidentiary limitations set director’s conclusions regarding their
comment is more appropriately forth in § 725.414. eligibility, and do not seek further
addressed under § 725.457, governing (c) The Department has replaced the review of their claims for benefits. The
the use of witnesses before an reference to § 725.413(c)(2) with a alternative to issuing proposed
administrative law judge. See preamble reference to § 725.410(b) in order to decisions and orders—referring all cases
to § 725.457, paragraph (b). reflect the new provision governing the to the Office of Administrative Law
(o) A number of comments generally time period for submitting documentary Judges (OALJs) for a formal hearing on
favor the Department’s medical evidence to the district director. The the merits—would represent a
evidentiary limitations. Department has also deleted the word considerable and unnecessary
(p) No other comments were received ‘‘operator’s’’ from the title of the expenditure of the resources of the
concerning this section, and no other regulation. As revised, the Department’s OALJs, the Office of Workers’
changes have been made in it. regulations do not provide a separate Compensation Programs, and the coal
20 CFR 725.415 period for the development of an mine operators who must litigate such
operator’s evidence. cases. Accordingly, the Department does
(a) In its first notice of proposed (d) One comment submitted in not agree that § 725.415 should be
rulemaking, the Department revised connection with the first notice of revised to retain the current rule under
§ 725.415 to require the district director proposed rulemaking states that this which district directors may simply
to issue a proposed decision and order section affords the district director too forward cases to the OALJs. Also,
in each case. Citing the need to much authority, but does not identify issuance of some document is necessary
strengthen the integrity of the district which specific powers are objectionable. to establish the date from which the
director’s adjudication, the Department Without more detail, the Department parties’ modification rights begin to run.
proposed removing the district cannot respond meaningfully to the The Department believes that it will be
director’s authority to refer a claim to commenter’s concerns. Subsection (b) easier for all parties if there is only one
the Office of Administrative Law Judges does enumerate the possible actions a such document in each case.
without first issuing a proposed district director may take after (f) No other comments were received
decision and order. 62 FR 3361 (Jan. 22, reviewing all of the evidence developed concerning this section, and no changes
1997). The Department did not discuss in conjunction with the claim. The have been made in it.
§ 725.415 in its second notice of district director may notify additional
proposed rulemaking. See list of 20 CFR 725.416
potentially liable operators, issue
Changes in the Department’s Second another schedule for the submission of (a) In its first notice of proposed
Proposal, 64 FR 54971 (Oct. 8, 1999). additional evidence, schedule a rulemaking, the Department proposed
(b) The Department has revised conference, issue a decision, or take any revising subsection (c) to provide for the
subsection (b) in light of its decision not other action appropriate to the imposition of sanctions on any party
to allow more than one operator to circumstances of the claim. The district that failed to appear at a scheduled
remain a party to a black lung claim director must enjoy some degree of informal conference and whose absence
after the conclusion of district director flexibility in determining how to was not excused. The Department also
processing. As revised, the regulation proceed once evidentiary development proposed revising subsection (d) to put
recognizes the district director’s has concluded. For example, the district parties on notice that those attending
authority to reconsider his initial director may determine, in light of the conference would be deemed to
designation of a responsible operator evidence submitted by the designated have the authority to stipulate to facts
following the submission of liability responsible operator, that one or more or issues or resolve the claim. 62 FR
evidence by that initially designated additional potentially liable operators 3361 (Jan. 22, 1997). In its second notice
operator. Where the district director must be notified of the claim, or that a of proposed rulemaking, the Department
believes that that evidence establishes previously notified potentially liable responded to a number of comments
that the first operator is not the proper operator should be designated the from a variety of sources urging the
responsible operator, he may issue responsible operator. In such cases, the elimination of informal conferences.
Although the Department declined to the development of evidence on behalf enter. Exercise of this discretion is
eliminate conferences, it proposed of the Black Lung Disability Trust Fund. particularly important where a claimant
revising subsection (b) to require the These dual roles may affect the degree is represented by a lay representative.
district director to articulate specific to which the district director is viewed (c) One comment submitted in
reasons for holding one. In the absence as a neutral arbiter of the issues before connection with the first notice of
of such a statement, the district director him. An appearance of a conflict of proposed rulemaking and renewed in
would be prohibited from imposing interest is particularly troubling in a connection with the second notice of
sanctions for a party’s failure to appear. case in which there is no operator liable proposed rulemaking objects to the
In addition, in order to reduce parties’ for the payment of benefits, and the regulation contending it improperly
costs, the Department proposed to claimant lacks representation. In order provides for an adjudication of the
recognize the current practice of to minimize any appearance of claim before the district director that is
allowing parties to participate in unfairness, the Department believes that neither on the record nor under oath.
informal conferences by telephone. 64 conferences should be held only when The commenter also objects generally to
FR 54996 (Oct. 8, 1999). all parties are capable of making the discretion given the district director
(b) A number of comments generally informed judgments to protect their own to determine the procedures to be used
oppose the use of informal conferences, interests. Accordingly, in addition to at the conference. The Department
contending they create additional delay explaining why holding a conference in recognizes that the informal conference
and complexity in district director a particular claim would be beneficial, will not be conducted under oath and
claims processing. As explained in both the Department will inform the parties on the record, but believes that the
its first and second notices of proposed that no conference will be held if all
changes it has made to the informal
rulemaking, the Department believes conference procedures obviate this
parties do not have representation. In
that informal conferences may serve objection. As revised, an informal
the event that a claimant is not
useful purposes, including, in conference will only be held if all
represented, the district director will
appropriate cases, narrowing issues, parties to a claim are represented or are
not hold a conference. An appointed lay
achieving stipulations, and crystallizing deemed to be represented. This revision
representative is sufficient, however, to
positions. 62 FR 3361 (Jan. 22, 1997); 64 removes the danger that the district
allow an informal conference to go
FR 54996 (Oct. 8, 1999). The director will be able to obtain a
forward, 20 CFR 725.362, 725.363
Department agrees, however, that stipulation from an unsophisticated
(1999). The regulation extends the same
conferences should not unduly delay party. Moreover, following the
the further adjudication of a claim. In protection to operators that are neither termination of the informal conference
addition, they should be held only in insured nor self-insured. Many self- proceedings, the district director will
appropriate circumstances. Accordingly, insured coal mine operators and issue a proposed decision and order.
the Department has made two major insurers do not obtain formal The district director’s ‘‘adjudication’’ of
changes to § 725.416. In subsection (a), representation at this stage of the claim is thus subject to the consent
the Department has added the adjudication, but have claims of the parties. A request for a hearing
requirement that a district director processing personnel, either in their will require the district director to
conduct any conference within 90 days offices or in the claims servicing forward the claim to the Office of
of the date on which the period for organizations that they use, who are Administrative Law Judges for de novo
submitting evidence under § 725.410(b) knowledgeable concerning the adjudication. Consequently, the district
closes, unless one of the parties requests entitlement and liability criteria of the director’s inability to conduct the
a postponement for good cause. The Black Lung Benefits Act and its informal conference under oath, and to
Department has also deleted the implementing regulations. The have the conference transcribed, will
reference in subsection (b) to the district Department believes that such not affect the substantive rights of any
director’s discretion to reschedule personnel should be able to enter into party.
conferences. Subsection (a) permits the binding stipulations on behalf of the (d) No other comments have been
district director to reschedule self-insured or insured coal mine received concerning this section.
conferences, but only upon the motion operator. The Department has replaced
the reference to § 725.362 in subsection 20 CFR 725.417
of a party. The Department has also
replaced the reference to § 725.413(c)(2) (d) with a reference to subsection (b) to (a) In its first notice of proposed
in subsection (a) with a reference to accomplish this result. Accordingly, the rulemaking, the Department proposed
§ 725.410(b) in order to reflect a change regulation deems that such operators are revising subsection (b) to incorporate
in those regulations. In addition, in represented for purposes of scheduling the limitations on documentary
order to further limit the delay caused an informal conference. By contrast, the evidence contained in § 725.414. 62 FR
by informal conferences, the Department intends that operators that 3361 (Jan. 22, 1997). The Department
Department will continue to require that are neither insured nor self-insured— did not discuss § 725.417 in its second
the district director issue a decision operators that are not often called upon notice of proposed rulemaking. See list
within 20 days of the close of all to participate in the adjudication of of Changes in the Department’s Second
conference proceedings, including the black lung benefits claims—should not Proposal, 64 FR 54971 (Oct. 8, 1999).
time permitted for the submission of be asked to enter into stipulations (b) The Department has revised
any additional evidence. See § 725.417. without the benefit of a formal subsection (b) to clarify the district
The Department has made a second representative’s advice. Because there director’s authority to seek additional
major change to § 725.416 to remove any will no longer be any conferences information on the issue of responsible
appearance of impropriety in the involving unrepresented claimants, the operator liability even after he has held
informal conference process. The Department has deleted the last two a conference. The conference may
district director is a subordinate of the sentences of subsection (e). The district provide the district director with
Director, Office of Workers’ director may continue to exercise his additional information regarding the
Compensation Programs, a party in each discretion, however, to determine claimant’s employment history.
claim for black lung benefits. The whether parties understand any Accordingly, subsection (b) authorizes
district director is also responsible for stipulations which they are asked to the district director to issue another
notification of potential operator and can therefore be corrected before a reference to the 20-day time period
liability under § 725.407 and/or another submitting the report into the record. If, provided by § 725.417(c) within which
schedule for the submission of however, some aspect of a physician’s the district director must issue a
additional evidence under § 725.410. report has been the subject of rebuttal proposed decision and order. In
(c) One comment objected to the evidence by an opposing party, addition, the Department has replaced
requirement in proposed subsection (d) § 725.414 does allow the rehabilitation the reference to § 725.413(c)(2) with a
that parties respond in writing to the of the original report by the submission reference to 725.410(b) in order to
district director’s memorandum of of a clarifying report from the original reflect changes to those regulations. The
conference. The Department agrees that doctor. Such rehabilitative evidence is Department has deleted the words ‘‘to
this response is unnecessary, and has allowed by the evidentiary limitations be’’ in the first sentence of subsection
further streamlined its informal in § 725.414. (a) as unnecessary, and has revised the
adjudication of claims by eliminating in (f) One comment argues that the last sentence of subsection (a) to clarify
its entirety the memorandum of regulation is questionable in light of the the meaning of the regulation. The
conference and the required response changes made to § 725.414. In the Department has also revised subsection
that would have followed. Instead, at absence of any further explanation by (b) to clarify that the proposed decision
the conclusion of informal conference the commenter, the Department is and order is the document that must be
proceedings, including the submission unable to respond. served on the parties by certified mail.
of any additional evidence, the district (g) The Department received no other (d) A number of comments objected to
director will issue a proposed decision comments concerning this section. the Department’s proposed revision of
and order under § 725.418. The 20 CFR 725.418 § 725.411, which would have treated a
Department has also revised subsection hearing request filed before the
(b) in order to clarify the meaning of the (a) The Department proposed revising conclusion of district director
sentence. subsection (a) in its first notice of processing as a request for the further
(d) One comment urges the proposed rulemaking to identify the adjudication of the claim. See 62 FR
Department to create a time limit within proposed decision and order as the step 3356 (Jan. 22, 1997). The Department
which the district director must issue a which follows a district director’s believes that its amended procedures in
decision after holding a conference. memorandum of conference or, if no §§ 725.410 through 725.412, 725.416—
Subsection (c), 20 CFR 725.417(c) conference was held, the period 725.417, will eliminate much of the
(1999), requires the district director to established by the district director for confusion that has led parties to file
issue a decision within 20 days of the the submission of evidence. The hearing requests before the conclusion
conclusion of the informal conference revision was intended to require the of administrative processing. Whereas
proceedings. Consequently, no change issuance of a proposed decision and the Department’s original proposal
in the regulation is required. order in each case, and to eliminate the authorized the district director to issue
(e) One comment submitted in district director’s option of referring the an initial finding, a memorandum of
connection with the first notice of case for a hearing without issuing a conference, and a proposed decision
proposed rulemaking recommended proposed decision and order. 62 FR and order, the revised regulations
amending subsection (b) to allow 3361 (Jan. 22, 1997). The Department provide for the issuance of only one
submission of post-conference did not discuss § 725.418 in its second decisional document in most cases: A
supplementary reports from any notice of proposed rulemaking. See list proposed decision and order. The
physician who has already prepared a of Changes in the Department’s Second Department does agree, however, that it
report if clarification of the physician’s Proposal, 64 FR 54971 (Oct. 8, 1999). should honor any hearing request that is
report is needed. No change in the (b) The Department has added filed by a party even if it is filed before
proposed regulation is necessary. A subsection (d) to provide explicitly that, the conclusion of a district director’s
party may request the opportunity to to the extent he has not done so before, processing. Accordingly, the
submit additional evidence post- the district director must dismiss, as Department has added subsection (c) to
conference which may further support parties to the claim, all potentially liable require that the proposed decision and
its position or a physician’s views. The operators except one. Moreover, the order apprise parties of their right to a
only restriction imposed by subsection regulation guarantees that no operator hearing. Where a party has previously
(b) is that such additional evidentiary may be the finally designated filed a hearing request, and can
development cannot circumvent the responsible operator unless it: (1) Was reasonably be said to be aggrieved by
numerical limitations in § 725.414. To notified of its potential liability the proposed decision and order, the
the extent that the comment implies a pursuant to § 725.407, and thus given district director will inform the party
‘‘clarifying’’ report should be considered the opportunity to submit evidence that the case will be referred to the
an extension of the initial report, the under § 725.408; and (2) given the Office of Administrative Law Judges
Department disagrees. Excluding opportunity to submit additional unless the party revokes its previous
supplementary reports from the evidence relevant to the liability of request. In the case of a claimant who
§ 725.414 limitations would create an other potentially liable operators and has previously requested a hearing, the
exception which eviscerates the the claimant’s eligibility pursuant to district director will forward the case if
limitation. A party could invite § 725.410. he has denied benefits. In the case of an
comment from the physician on almost (c) The Department has deleted the operator who has previously requested
any aspect of the medical evidence in reference in the first sentence of a hearing on either the claimant’s
the record under the guise of subsection (a) to the parties’ responses eligibility or its liability for benefits, the
‘‘clarifying’’ the physician’s views in to the district director’s district director will forward the case if
light of that evidence. In effect, the recommendations because a district he has awarded benefits.
supplementary report would constitute director will no longer issue a (e) One comment submitted in
another medical report. Moreover, any memorandum of conference following connection with the first notice of
internal ambiguity or omission in the the termination of conference proposed rulemaking and renewed in
physician’s opinion should be apparent proceedings. See preamble to § 725.416. response to the second notice of
upon receipt and review of the report, In its place, the Department has added proposed rulemaking expresses general
dissatisfaction with the issuance of a operator liability shall be made a part of eliminated from the regulations. See
proposed decision and order calling it the record. preamble to §§ 725.410–.413.
an unnecessary procedural step. The (c) In subsection (a), the Department (c) One comment submitted in
issuance of this document, however, is has added the word ‘‘evidentiary’’ and connection with the first notice of
the logical culmination of the claims deleted the phrase ‘‘in the claim’’ to proposed rulemaking objects to a single
adjudication process at the district clarify the meaning of the sentence. regulation governing extensions of time.
director level. Under the revised (d) One comment submitted in The commenter would prefer individual
procedures adopted by the Department, connection with the Department’s first provisions in each affected regulation to
it will serve as the district director’s notice of proposed rulemaking objects to add clarity to the proceedings. The
only attempted resolution of the issues subsection (c) because it requires a party Department disagrees. In terms of an
of claimant eligibility and operator to pay for copies of documents which efficient structure for the program
liability. The proposed decision and have previously been provided. The regulations, a single provision with
order thus serves either as a final commenter argues that claimants in application to the entire Subpart E is
disposition of the claim if the parties particular are unaware of the more logical than a series of repetitive
accept the decision, or as the conclusion importance of keeping all documents provisions added to each regulation
of the initial stage of adjudication if a associated with their claims. No change containing a time frame for action.
party aggrieved by the result intends to is made in response to this comment. (d) One comment submitted in
pursue the case to the hearing stage. The Subsection (c) is a rule of general connection with the first notice of
Department therefore rejects the applicability, and affects responsible proposed rulemaking urges explicit
suggestion that a proposed decision and operators and insurance carriers as well recognition that a request for an
order is unnecessary. as claimants. The provision states that extension of time may be honored even
(f) No other comments were received the district director shall determine the if submitted after the time period for
concerning this section. amount of the copying fee. It therefore taking action has expired. This
allows the district director to consider suggestion cannot be adopted. A ‘‘well-
20 CFR 725.419 settled’’ principle of the black lung
mitigating factors (the individual’s
The Department received two financial condition, the cost of the program requires the parties to ‘‘strictly
comments relevant to § 725.419. This documents being replaced, etc.) as adhere to the substantive and
section was not open for comment; only grounds for reducing or waiving the procedural requirements of the Black
technical changes were made to it. See copying fee. No other comments Lung Benefits Act and its implementing
62 FR 3340–41 (Jan. 22, 1997); 64 FR concerning this section were received, regulations.’’ Jordan v. Director, OWCP,
54970 (Oct. 8, 1999). Therefore no and no changes have been made in it. 892 F.2d 482, 486 (6th Cir. 1989). Strict
changes are being made in it. adherence to clearly delineated time
20 CFR 725.422 frames for taking action promotes ‘‘a
20 CFR 725.421
The Department received several just, efficient and final resolution’’ of
(a) In its first notice of proposed comments relevant to § 725.422. This claims. 892 F.2d at 487. Any party,
rulemaking, the Department proposed section was not open for comment; it however, may ask for additional time to
deleting language in subsection (a) to was repromulgated without alteration act. The Department believes a
allow district directors to maintain the for the convenience of the reader; see 62 requirement that the extension be
files of cases which have been referred FR 3341 (Jan. 22, 1997); 64 FR 54971 sought before the time for acting elapses
to the Office of Administrative Law (Oct. 8, 1999). Therefore, no changes are is reasonable. See generally Fetter v.
Judges. Formerly, those files had been being made in it. Peabody Coal Co., 6 Black Lung Rep. 1–
sent to the national office of OWCP’s 1173, 1–1175 (1984). Each party has
Division of Coal Mine Workers’ 20 CFR 725.423
notice of when some action must be
Compensation. 62 FR 3361 (Jan. 22, (a) In its first notice of proposed taken during the adjudication process.
1997). The Department did not discuss rulemaking, the Department proposed Even if the party cannot complete the
§ 725.421 in its second notice of the addition of § 725.423 to consolidate action itself, it may at least complete the
proposed rulemaking. See list of all of the provisions governing request for additional time. Submitting
Proposed Changes in the Department’s extensions of time in subpart E of part a timely request for an extension is not
Second Proposal, 64 FR 54971 (Oct. 8, 725. With the exception of two time an onerous burden.
1999). periods, one in § 725.411(a)(1)(i) (e) One comment recommends
(b) The Department has revised governing a claimant’s response to an including proposed § 725.411(a)(1)(i)
subsection (b)(3) to ensure that the unfavorable initial finding and the other among the time periods which can be
record is sufficient to establish that the in § 725.419 governing responses to a extended. As originally proposed,
district director provided the finally district director’s proposed decision and section 725.411(a)(1)(i) would have
designated responsible operator with order, the proposed regulation would afforded a claimant who has been
notification of its status as a potentially have allowed any time period to be denied benefits one year from the
liable operator under § 725.407 as well extended for good cause shown district director’s initial finding within
as its designation as the responsible provided a request for an extension was which to request further adjudication.
operator pursuant to § 725.410. In filed before the time period expired. 62 The revisions made by the Department
addition, the Department has revised FR 3361 (Jan. 22, 1997). The Department to §§ 725.410–.413 have eliminated the
subsection (b)(4) to ensure that the did not discuss § 725.423 in its second time period in § 725.411(a)(1)(i).
record forwarded to the Office of notice of proposed rulemaking. See list Accordingly, the comment is no longer
Administrative Law Judges contains of Proposed Changes in the relevant.
only medical evidence submitted by the Department’s Second Proposal, 64 FR (f) One comment urges the
claimant and the finally designated 54971 (Oct. 8, 1999). Department to specify that a party
responsible operator or fund, as (b) The Department has eliminated cannot seek an extension of its right to
appropriate. See explanation the reference in § 725.423 to the time file a request for modification under
accompanying §§ 725.414, 725.415. All period set forth in § 725.411(a)(1) § 725.310 if that request is not filed
evidence relevant to the issue of because that time period has been before the expiration of the one-year
time period. By its terms, section Subpart F summary judgment under subsection (c)
725.423 governs the extension of time 20 CFR 725.452 in those rare cases where there is no
periods in subpart E of part 725. It thus genuine dispute as to a material issue of
does not govern section 725.310, which (a) The Department proposed adding fact. In all other cases, however, the
subsection (d) in its first notice of Department’s revised regulation gives
is located in subpart C. The Department
proposed rulemaking to prohibit the each party to a claim the right to insist
does not believe that a catchall
deciding of a case without holding a on an in-person hearing. Permitting the
provision for the entire part 725 is hearing unless the administrative law
appropriate, and, in the absence of such cancellation of a hearing over the
judge believes an oral hearing is not objection of even one of the parties, in
a provision, believes that § 725.423 necessary, notifies the parties that he a case involving disputed facts, would
should not include a reference to any intends to decide the case on the record, contravene the explicit command of 33
regulations outside of subpart E. and the parties do not object. 62 FR U.S.C. 919, as incorporated by 30 U.S.C.
(g) One comment argues that the 3361 (Jan. 22, 1997). The Department 932(a). No other comments were
Department should not create a non- did not discuss this regulation in its received concerning this section, and no
statutory jurisdictional bar by refusing second notice of proposed rulemaking. changes have been made in it.
to permit an extension of time in the See list of Changes in the Department’s
Second Proposal, 64 FR 54971 (Oct. 8, 20 CFR 725.453
case of a proposed decision and order.
The commenter argues that the 1999). Although the Department received
Department’s regulation violates the (b) One comment objects to the comments under this section, the
rights of parties under the Department’s insistence on an in-person regulation was not open for comment,
hearing. The commenter states that an see 62 Fed. Reg. 3341 (Jan. 22, 1997); 64
Administrative Procedure Act and the
administrative law judge should be Fed. Reg. 54970–71 (Oct. 8, 1999). The
Black Lung Benefits Act to obtain a
entitled to decide whether a hearing is regulation was repromulgated only for
hearing. The Department disagrees. The necessary in the event that the parties the convenience of readers.
time limit established by § 715.419 for disagree. The regulation reflects the Accordingly, no changes are being made
responding to a proposed decision and Department’s consistent position that in this section.
order is necessary to create finality in any party is entitled to a hearing before
those cases where no party contests the 20 CFR 725.454
an administrative law judge in a case
district director’s initial adjudication of that is not appropriate for summary (a) In its first notice of proposed
a claim. In the event that the judgment. Section 19(c) of the rulemaking, the Department proposed
Department issues a proposed decision Longshore and Harbor Workers’ eliminating the provision allowing
and order awarding benefits and the Compensation Act requires a hearing administrative law judges to reopen the
designated responsible operator fails to ‘‘upon application of any interested record for the receipt of additional
respond in a timely manner, the party.’’ 33 U.S.C. 919(c), as incorporated evidence for ‘‘good cause.’’ 62 FR 3361
Department must be able to enforce the by 30 U.S.C. 932(a). In its recent (Jan. 22, 1997). The Department’s
award against the operator. Enforcement decision in Robbins v. Cyprus proposal reflected the evidentiary
of an award under § 21(d) of the Cumberland Coal Co., 146 F.3d 425, 430 limitations then imposed by § 725.414.
Longshore and Harbor Workers’ (6th Cir. 1998), the Sixth Circuit The Department did not discuss the
Compensation Act, 33 U.S.C. 921(d), as recognized the existence of such a right regulation in its second notice of
in a modification proceeding. See also proposed rulemaking. See list of
incorporated by 30 U.S.C. 932(a), and
Cunningham v. Island Creek Coal Co., Changes in the Department’s Second
the collection of benefits owed the Black
144 F.3d 388, 389–90 (6th Cir. 1998); Proposal, 64 FR 54971 (Oct. 8, 1999).
Lung Disability Trust Fund under 30 (b) Several comments submitted in
U.S.C. 934, however, require that the Pyro Mining Co. v. Slaton, 879 F.2d 187,
190 (6th Cir. 1989). The Robbins court response to both the Department’s 1997
decision and order awarding benefits be proposal and its 1999 reproposal oppose
final. The time limit in the current explained several reasons for requiring
an in-person hearing: removal from the current regulation of
version of § 725.419, 20 CFR 725.419 the administrative law judge’s authority
(1999), has been interpreted to be The mere fact that parties rarely bring a to reopen the record to receive
jurisdictional, Freeman United Coal live expert is immaterial. [The claimant]
should have had the opportunity to bring a
additional evidence for good cause
Mining Co v. Benefits Review Board, 942 live expert. Additionally, although the ALJ shown. The Department responded to
F.2d 415, 422 (7th Cir. 1991), and required any documentary evidence to be those objections when it reproposed
§ 725.423 simply recognizes that introduced in advance, the Director correctly § 725.414(c), (d) and § 724.456(b) for
interpretation. Contrary to the points out that [the claimant] could request additional comment. 64 FR 54994–95
commenter’s suggestion, assigning and receive permission at a hearing to (Oct. 8, 1999). At that time, the
introduce additional documentary evidence. Department changed the proposed
finality to a district director’s proposed
decision and order awarding benefits in 146 F.3d at 429. The in-person hearing standard for the admission of
the absence of a timely objection by the also allows the parties to offer lay documentary medical evidence in
designated responsible operator violates testimony on such issues as the miner’s excess of the regulations’ numerical
no provision in the Administrative employment and medical history. limitations from one of ‘‘extraordinary
Procedure Act or the Black Lung Finally, the Department believes that circumstances’’ to ‘‘good cause,’’ while
Benefits Act. Nothing in either statute guaranteeing the ability of all parties to leaving the standard for admission of
requires the Department to give effect to appear before a highly qualified additional evidence relating to operator
a party’s late request for a hearing administrative law judge increases the liability—evidence that was not
parties’ confidence in the fairness and submitted to the district director—one
following the conclusion of the district
impartiality of the adjudication process. of extraordinary circumstances. In any
director’s administrative proceedings.
Contrary to the commenter’s suggestion, event, the standard to be used to govern
(h) No other comments were received the Department does not insist that an the introduction of documentary
concerning this section. in-person hearing must be held in every evidence while a case is pending before
case. The parties remain free to move for the Office of Administrative Law Judges
more properly belongs in § 725.456, and showing of good cause. Accordingly, in original adoption of the rule remain.
it remains there. In that regulation, its second proposal, the Department Accordingly, proposed subsection (c) is
medical evidence in excess of the revised section 725.456, adding deleted, and proposed subsections (d),
limitations contained in § 725.414 may subsections from 20 CFR 725.456 (1999) (e), and (f) are redesignated as
be admitted into the record upon a to govern the submission of subsections (c), (d), and (e),
showing of good cause. No change has documentary medical evidence to the respectively. The Department has made
been made in § 725.454 in response to administrative law judge. 20 CFR a corresponding deletion of proposed
these comments. 725.456(b)(1)–(3), (c), (d) (1999). The section 725.414(e). Since both
(c) One comment recommends Department also revised subsection (f), subsections are now deleted, there is no
clarifying subsection (a) to underscore now subsection (e), to reflect changes to need to harmonize them.
the claimant’s right to request a hearing § 725.406. 64 FR 54996 (Oct. 8, 1999). (c) One comment argues that the
site somewhere outside the 75-mile (b) A number of comments object to Department’s revision imposes
radius around his residence for the the Department’s addition of proposed increased costs on coal mine operators
convenience of his representative. No subsection (c) to § 725.456, which by ‘‘front-loading’’ the evidentiary
change is made in response to this prohibits parties from introducing development process in claims where
comment. Subsection (a) specifically documentary evidence at the formal such development is unnecessary or
provides that a claimant may request an hearing that was in their possession could be delayed. This comment
alternate location, and does not limit the while the case was pending before the appears to be based on the mistaken
site to a specific area or distance from district director and was withheld from belief that the Department’s regulations
the claimant’s residence. A claimant the district director or any other party. continue to require the parties to submit
may therefore request the administrative Several of the comments argue under a all of their documentary medical
law judge to move the hearing site parallel provision, proposed evidence to the district director. The
beyond the 75-mile boundary. § 725.414(e), that the provision will Department revised its proposal in 1999,
Claimants, however, cannot be accorded most severely affect claimants who are and § 725.456, as reproposed, will allow
an unqualified right to determine where not represented by counsel while the both the claimant and the designated
hearings should be convened. All case is pending before the district responsible operator in a claim to delay
matters relating to the conduct of the director, and who may unwittingly fail their development of documentary
hearing are ultimately the responsibility to provide the district director with medical evidence until shortly before
of the administrative law judge. He or evidence that they have developed. the formal hearing. In the event that a
she must balance the interests and rights Another comment urges the Department claim does not proceed beyond the
of all the parties against the to harmonize subsection (c) with section district director level, the operator will
convenience of a particular site for the 725.414(e). not have to develop any medical
claimant. Consideration must also be Subsection (c) was originally evidence. This is the operators’ current
given to administrative convenience and promulgated by the Department in 1978, practice in many claims.
the efficient allocation of human and and was designed to ensure that the The Department acknowledges,
financial resources in general. An district director’s initial determination however, that operators will still be
administrative law judge generally of the claimant’s eligibility was based required to submit evidence regarding
schedules several claims for on all of the available evidence their potential liability for the claim to
adjudication in one location. regarding the miner’s medical the district director while the claim is
(d) No other comments were received condition. The subsection was also being adjudicated at this earliest stage.
concerning this section, and no changes designed to ensure that the parties had Under the former regulations, an
have been made in it. adequate time to respond to an operator did not have to submit any
opponent’s evidence. See 43 FR 36794, evidence to support its denial of
20 CFR 725.456
36798 (Aug. 18, 1978). The revised liability until the case was referred to
(a) The Department proposed revising regulations, however, will significantly the Office of Administrative Law Judges
section 725.456 in its first notice of alter the adjudication of black lung for a formal hearing. In a number of
proposed rulemaking in order to reflect benefits cases. In particular, the district cases, where no party requested a
its original proposal in § 725.414 director will make his initial hearing, the operator did not need to
requiring parties to submit all of their determination in reliance on a complete develop or submit this evidence at all.
documentary evidence to the district pulmonary evaluation performed by a Thus, the commenter’s observation that
director. As originally proposed, section highly qualified physician, and will the revised regulations will require the
725.456 would have prohibited the already have all of the evidence relevant ‘‘up-front’’ development of evidence is
introduction of any additional evidence to the identification of the responsible well-taken with respect to operator
before the administrative law judge in coal mine operator. Moreover, as the liability evidence. In both its initial
the absence of extraordinary commenters point out, an unrepresented notice of proposed rulemaking and its
circumstances. 62 FR 3361–62 (Jan. 22, claimant who obtains an opinion from second notice of proposed rulemaking,
1997). In its second notice of proposed his treating physician may inadvertently however, the Department explained its
rulemaking, the Department eliminated fail to submit it to the district director, intention to require potentially liable
the requirement in § 725.414 that parties and, under proposed subsection (c), operators to submit evidence relevant to
submit all of their documentary medical would be prevented from submitting it their employment of the miner and their
evidence to the district director in the thereafter to the administrative law financial capability to pay benefits at
absence of extraordinary circumstances, judge. In addition, the 20-day the earliest possible stage. 62 FR 3355–
although it retained that requirement requirement in subsection (b)(2) will 56 (Jan. 22, 1997); 64 FR 54990–91 (Oct.
with respect to documentary evidence ensure that parties have an adequate 8, 1999). In these final regulations, the
relevant to the issue of operator liability. period in which to respond to the Department has also required operator
Instead, the Department proposed opposing party’s evidence. Thus, the development and submission of any
allowing admission of documentary Department does not believe that evidence relevant to the liability of
medical evidence in excess of the subsection (c) remains necessary. another party during the district
§ 725.414 numerical limitations upon a Neither of the stated bases for the director’s claims processing. Evidentiary
development as to other parties will be written medical reports, the evidentiary (i) No other comments were received
necessary, however, only in that small basis of Social Security’s disability concerning this section and no other
percentage of claims in which the determinations. Similarly, the changes have been made in it.
identity of the responsible operator is in Department’s regulations provide all 20 CFR 725.457
serious question. See § 725.414(b). The parties with a full and fair opportunity
Department continues to believe that to conduct cross-examination. If the (a) In its initial notice of proposed
these requirements are justified by the author of a report testifies at the hearing, rulemaking, the Department proposed
Department’s need to ascertain the the opposing party may clearly avail revising subsection (c) to conform the
positions of potentially liable operators itself of the opportunity to conduct live regulation to the requirement then in
on these issues while the case is cross-examination. In cases where the § 725.414 that a party identify all of its
pending before the district director, documentary medical evidence stands potential witnesses while the claim was
especially given the fact that potentially on its own, the opposing party may pending before the district director. The
liable operators other than the question the author of the report under Department also proposed adding a
designated responsible operator will no conditions determined by the subsection (d) to address the
longer be parties once a case has been permissible scope of a medical witness’s
administrative law judge. See § 725.459.
referred to the Office of Administrative testimony. 62 FR 3362 (Jan. 22, 1997).
Finally, the administrative law judge
Law Judges. In addition, the Department In light of changes to § 725.414 in the
has the authority, in appropriate cases,
continues to believe that the increased second notice of proposed rulemaking,
to issue a subpoena to compel the
costs that operators will have to bear as the Department proposed altering the
attendance of a witness at the hearing.
a result of this ‘‘front-loading’’ will not witness identification requirement so
In addition, in any case involving that it applied only to witnesses who
be significant. documentary medical evidence, the
(d) One comment submitted in were testifying to the liability of a
opposing party has the right, under potentially liable operator or the
response to the 1997 proposal and the
section 725.414, to submit documentary designation of the responsible operator.
1999 reproposal states that the
rebuttal evidence of its own. Thus, under the reproposal, the
Department’s revision eliminates the
authority of administrative law judges to Accordingly, the Department does not testimony of witnesses relevant to the
perform certain functions. Another agree that its revisions to 725.456 in any liability of a potentially liable operator
comment argues that the revision way limit the right of parties to conduct and/or the identification of the
marginalizes administrative law judges an effective cross-examination. responsible operator was permissible
and demeans their powers and duties. (f) One comment argues that a party only if the identity of that witness was
Although neither comment offers should not be required to make an disclosed to the district director.
specific examples of functions, powers, independent showing of ‘‘good cause’’ In the second proposal, the
and duties that the Department has in order to put on its case. The Department eliminated the requirement
eliminated by revising section 725.456, Department does not agree that that parties identify their medical
the Department has independently § 725.456 prohibits a party from putting witnesses while the case was pending
reviewed the provision and does not on its affirmative case. In combination before the district director because, as
believe that it eliminates any function with § 725.414, this provision places revised, the regulations allowed parties
currently performed by the reasonable limitations on the number of to forego development of medical
administrative law judge, nor any power medical reports and tests that a party evidence until a case was referred to the
or duty that administrative law judges may submit into evidence. A showing of Office of Administrative Law Judges. In
currently possess. Under the revised ‘‘good cause’’ is necessary only in the the reproposal, the testimony of medical
regulations, administrative law judges event that a party seeks to convince the witnesses was limited by only two
will retain full authority to decide any administrative law judge that the considerations. First, the total number
issue in respect of a claim, as required particular facts of a case justify the of medical reports and medical
by section 19(a) of the Longshore and submission of additional medical witnesses offered by a party could not
Harbor Workers’ Compensation Act, 33 evidence, either in the form of a exceed the limitations set forth in
U.S.C. 919(a), as incorporated by 30 documentary report or testimony. The § 725.414 except upon a showing of
U.S.C. 932(a). Neither the Longshore Act Department believes that in the majority good cause. Second, a party had to
nor the Administrative Procedure Act of cases, the quantity of medical provide the other parties to a claim with
gives administrative law judges the right evidence permitted by the regulations, appropriate notice of a witness’
to demand that more evidence be made even in the absence of a good cause testimony: 10 days notice of any expert
available for their decision-making. To showing, will provide a more than witness who would testify at the
the extent that they are unpersuaded by adequate evidentiary basis for an hearing, or 30 days notice of a
the evidence of record, the administrative law judge to determine deposition. The Department also revised
administrative law judge must decide the claimant’s eligibility for benefits. subsection (d) to permit physicians to
that issue against the party that bears testify with respect to any medical
(g) Three comments approve of the evidence relevant to the miner’s
the burden of producing the evidence
Department’s reinstatement of the 20- physical condition that was admitted
on that issue.
(e) One comment argues that the day rule governing the introduction of into evidence. 64 FR 54996 (Oct. 8,
revised regulation denies the rights of documentary evidence before the 1999). The Department has added a
all parties to fully cross-examine administrative law judge. clause to subsection (a) to clarify its
adverse evidence and witnesses. The (h) One comment argues that intent that parties provide 10 days
Department does not agree that section § 725.457(d) is invalid in that it notice of any medical witness that they
725.456 affects the rights of any party to prohibits a physician from testifying as intend to present at the hearing,
cross-examine adverse evidence. In to medical evidence relevant to the including witnesses who have prepared
Richardson v. Perales, 402 U.S. 388, 409 miner’s condition that is not contained a medical report that has already been
(1971), the Supreme Court emphasized in the record. This comment is more submitted into evidence.
the importance of preserving the parties’ appropriately addressed under section (b) One comment argues that it is
ability to cross-examine the authors of 725.457. unreasonable to require a party to
identify a testifying witness while the Department’s intent that the limitations required by § 725.458 provides
claim is pending before the district in the subsection are intended to govern sufficient time for preparation.
director and that the requirement testimony at a hearing as well as by (d) One comment argues that the
illegally diminishes the authority of the deposition or interrogatories. Department’s limitation on the
administrative law judge who conducts The Department does not agree, testimony of physicians found in
the hearing. The Department disagrees. however, that revised § 725.457 § 725.457(d) is more restrictive than that
This limitation is a reasonable extension diminishes the authority of in the Federal Rules of Evidence and
of the requirement, set forth in Subpart administrative law judges. Under the inconsistent with section 23 of the
E, that parties develop all of the procedures incorporated into the Black Longshore and Harbor Workers
evidence relevant to the liability of Lung Benefits Act from the Longshore Compensation Act, 33 U.S.C. 923, as
potentially liable operators while the and Harbor Workers’ Compensation Act incorporated by 30 U.S.C. 932(a). The
case is pending before the district and the Administrative Procedure Act, Department’s regulation prohibits a
director. In both notices of proposed administrative law judges are neutral physician who offers testimony from
rulemaking, the Department explained arbiters of the issues presented to them relying on materials relevant to the
that requiring the submission of for resolution. Based on the evidence miner’s medical condition that are not
evidence relevant to liability was submitted by the parties within the part of the record. The commenter
intended to offset the risk that the Black confines of the regulations promulgated contrasts the regulation with the
Lung Disability Trust Fund would be by the Secretary, ALJs have ‘‘full power Seventh Circuit’s recent decision in
required to assume liability in the event and authority to hear and determine all Peabody Coal Co. v. Director, OWCP,
questions in respect of such claim.’’ 33 165 F.3d 1126 (7th Cir. 1999). In
that none of the potentially liable
U.S.C. 919(a), as incorporated by 30 Peabody Coal, the Seventh Circuit
operators named by the district director
U.S.C. 932(a). The requirement that reversed an award of benefits because
was ultimately determined to be the
parties identify witnesses relevant to the the administrative law judge had
responsible operator. See 62 Fed. Reg.
issues of operator liability while a case discredited a medical opinion that was
3355–56 (Jan. 22, 1997); 64 Fed. Reg.
is pending before the district director, based on an autopsy review not
54993 (Oct. 8, 1999). A party should not
and the limitation on expert testimony, admitted into the record. The court held
be able to avoid the required evidentiary
are legitimate agency procedural rules that under Rule 703 of the Federal Rules
development before the district director
designed to ensure the timely of Evidence, an expert witness may base
by submitting its evidence to the presentation of the evidence needed to his opinion on materials that ‘‘need not
administrative law judge in the form of adjudicate black lung benefits claims. be admissible, let alone admitted, in
witness testimony. Accordingly, the (c) Two comments state that the evidence, provided that they are the sort
regulations require that parties identify notice provision in subsection (a) of thing on which a responsible expert
all such witnesses while the case is should be harmonized with section draws in formulating a professional
pending before the district director. The 725.414(c). The Department does not opinion.’’ 165 F.3d at 1128. The court
regulations also recognize, however, believe that these provisions are in further noted that it could not think of
that a party may submit additional conflict. Subsection 725.414(c) requires any reason why black lung
documentary evidence on the liability the designated responsible operator to adjudications should be subject to
issue at the hearing upon a showing of identify witnesses whose testimony may tighter restrictions on expert testimony,
extraordinary circumstances, be introduced, either at the hearing or and added that ‘‘[n]either Congress nor
§ 725.456(b)(1), and the regulations by deposition, on the issues relevant to the Department of Labor thinks so.
should provide the same standard for operator liability while the claim is Nothing in the statute or regulations
allowing witnesses’ testimony. For pending before the district director in applicable to such cases supports the
example, the Department intends that a the absence of extraordinary decision of the administrative law judge
party will have shown extraordinary circumstances. The Department to impose tighter limits on expert
circumstances to present the testimony anticipates that the vast majority of witnesses in black lung cases than the
of a previously unidentified witness these witnesses will be ‘‘fact witnesses,’’ Federal Rules of Evidence impose in
whose testimony is relevant to the issue i.e., witnesses whose testimony will ordinary civil and criminal trials.’’ 165
of operator liability when the witness establish certain facts pertaining to the F.3d at 1129.
originally identified by the party is no miner’s employment. For example, an The regulations under which Peabody
longer available to testify. Accordingly, operator may present testimony to Coal was adjudicated, however, did not
the Department has revised subsection establish that the claimant did not work contain any limitations on the quantity
(c)(1) to reflect this exception. The as a miner while working for the of medical evidence that a party was
Department has also revised subsection operator, or that the claimant was not entitled to submit to the administrative
(c)(1) to reflect its decision to permit the exposed to coal mine dust. Because law judge. Because the Department has
district director to refer the case to the these witnesses are not ‘‘expert now limited the amount of documentary
Office of Administrative Law Judges witnesses,’’ the 10-day notice medical evidence in the record, it
with only one potentially liable requirement of section 725.457(a) is cannot allow parties to avoid that
operator, the designated responsible inapplicable. In cases where the witness limitation by presenting an expert
operator, as a party to the claim. The who will appear at the hearing is an witness who will be free to examine
Department has also added a clause to expert witness, such as a witness who additional material that may not be
subsection (c)(2) to clarify its intent that will testify to the coal industry’s use of admitted into the record. For example,
the combination of physician testimony certain terms in a coal mine lease, the if the party has already submitted a
and documentary medical reports may party offering that witness’s testimony medical report prepared by one
exceed the numerical limitations of must also provide 10 days notice to all physician, and a consultative report
§ 725.414 only upon a showing of good other parties to the claim. That time prepared by a second physician, it is not
cause. The Department has also deleted allows the other parties sufficient time entitled to submit the consultative
the last clause of this subsection; the to prepare to cross-examine the expert report of a third physician in the
introductory sentence of subsection (c) witness at the hearing. If the witness absence of good cause. The regulation
is sufficient to make clear the testifies by deposition, the 30-day notice ensures that the party is not allowed to
avoid that limitation simply by having (e) One comment approves of the hearing or by deposition or interrogatory
the second physician testify, not only Department’s revision of the regulation who has not submitted a written
about his own conclusions, but also with respect to the testimony of medical medical report. A physician who has
about the conclusions reached by a third witnesses. not submitted a written report may
doctor. The Department believes that (f) No other comments were received testify only if the party has not yet
the limitation contained in subsection concerning this section. reached the maximum number of
(d) is an appropriate means of ensuring 20 CFR 725.458 documentary medical reports allowed.
the parties’ adherence to the evidentiary In such a case, the physician’s
limitations imposed by section 725.414. (a) In its first notice of proposed testimony would not exceed the
Like section 725.414, the revised rulemaking, the Department proposed § 725.414 limitations.
version of section 725.457 will apply revising this regulation to ensure that (c) One comment urged the
only to claims filed after the effective the limitation on the scope of a Department to replace the 30-day notice
date of these regulations. physician’s testimony set forth in requirement in the regulation with a
§ 725.457 was also applicable to requirement that the parties need only
Contrary to the commenter’s
testimony offered by deposition and to give ‘‘reasonable notice’’ of the date,
objection, then, the Department’s
responses to interrogatories. 62 FR 3362 time and place of the deposition, and
revision does not ‘‘violate’’ the Seventh
(Jan. 22, 1997). The Department did not the name and address of each person to
Circuit’s decision in Peabody Coal. The
discuss this regulation in its second be examined, the current requirement
court did not base its decision on an
notice of proposed rulemaking. See list under Fed. R. Civ. P. 30(b)(1). The
interpretation of unambiguous statutory
of Changes in the Department’s Second Department has no reason to believe
language, but by using the Federal Rules
Proposal, 64 FR 54971 (Oct. 8, 1999). that the 30-day notice requirement has
of Evidence in a case in which the The Department did revise § 725.457(d),
statute and regulations were silent. 165 proved to be unworkable or even has
however, in order to allow a physician resulted in major inconvenience to the
F.3d at 1129. By promulgating a who testifies at a hearing to address all
regulation that will produce a result parties in black lung benefits
of the medical evidence of record. By adjudications. Parties remain free under
contrary to the court’s decision in the incorporating § 725.457(d), § 725.458
same circumstances, the Department has the regulation to agree to less than 30
also incorporated this expansion of the days’ notice when they believe it is
simply exercised its authority to fill in permissible scope of a physician’s
a gap identified by the court. ‘‘The reasonable to do so. Many parties to
testimony. black lung claims do not secure
power of an administrative agency to (b) The Department received several representation until shortly before the
administer a congressionally created comments concerning the cross- hearing, however, and the Department
* * * program necessarily requires the reference to § 725.457(d). The reference believes that the 30-day notice of
formulation of policy and the making of to § 725.457(d) incorporates into the deposition, if sent to an unrepresented
rules to fill any gap left, implicitly or rule governing depositions and party, provides an appropriate period of
explicitly, by Congress.’’ Morton v. Ruiz, interrogatories the limitations on the time not only to obtain the necessary
415 U.S. 199, 231 (1974). scope of physician-witnesses’ testimony representation but also to arrange for
Nor does section 725.457 violate at hearing. For the reasons expressed in participation in a deposition.
section 23 of the Longshore Act. Section connection with the reproposal of (d) One comment submitted in
23(a) provides that an administrative § 725.457, the scope of allowable connection with the Department’s first
law judge ‘‘shall not be bound by physician testimony has been notice of proposed rulemaking urges the
common law or statutory rules of broadened to allow a physician to Department to require parties to
evidence or by technical or formal rules address all of the other medical identify, while the case is pending
of procedure, except as provided by this evidence of record. 64 FR 54996 (Oct. 8, before the district director, all
chapter.’’ 33 U.S.C. 923(a), as 1999). No response is therefore physicians that will be deposed. The
incorporated by 30 U.S.C. 932(a). Even necessary to comments addressing the commenter argues that this requirement
if this provision could be read as operation of § 725.458, with one would expedite the claims process,
prohibiting the Department from exception. One commenter suggests that eliminate surprise, and require the
promulgating any regulations under the § 725.458 will permit a party to timely development of positions. In its
Longshore Act that govern hearing introduce the deposition testimony of second notice of proposed rulemaking,
procedures and the submission of physicians who have not previously the Department eliminated the proposal,
evidence, the Black Lung Benefits Act submitted medical reports, thereby contained in the first notice of proposed
explicitly authorizes the Secretary of circumventing the evidentiary rulemaking, that parties submit all of
Labor to promulgate regulations that limitations imposed by § 725.414. In the their documentary medical evidence
vary incorporated Longshore Act second notice of proposed rulemaking, while a case is pending before the
provisions in order to properly the regulation governing witness’ district director. The Department
administer the black lung benefits testimony generally, § 725.457, was explained that the revision reflected the
program. 30 U.S.C. 932(a); Director, amended to make the Department’s wishes of numerous commenters, and
OWCP v. National Mines Corp., 554 intent clear. 64 FR 55044 (Oct. 8, 1999). was particularly necessary in the case of
F.2d 1267, 1274 (4th Cir. 1977). As Subsection (c) specifically prohibits a claimants who might be unable to
discussed above, the limitation on the witness’ testimony, even if taken by obtain representation until shortly
scope of testimony by physicians set deposition or interrogatory, unless the before the hearing. 64 FR 54992–93
forth in § 725.457 is necessary in order witness meets the requirements of (Oct. 8, 1999). In light of this revision,
to ensure that parties adhere to the § 725.414. Thus, in the absence of a the Department does not believe that it
limitations on the quantity of medical finding of good cause pursuant to would be appropriate to require parties
evidence permitted each side in the § 725.456(b)(1), if a party has submitted to identify all medical witnesses while
adjudication of a claim for black lung the maximum number of documentary a case is pending before the district
benefits. Accordingly, the Department medical reports permitted under director. This requirement would
does not agree that the limitation § 725.414, it may not submit the effectively reinstate the original
violates section 23 of the Longshore Act. testimony of a physician-witness at a proposal by requiring parties to
undertake the development of their case judges to apportion costs in cases dependent on the miner’s successful
as to medical eligibility at the earliest involving indigent claimants. prosecution of his claim. Rather,
stage of adjudication. The Department (d) One comment argues that the Congress, in incorporating section 7(e)
believes that this suggestion would Department’s proposal violates section into the Black Lung Benefits Act,
adversely affect unrepresented 28 of the Longshore and Harbor demonstrated its concern that miners
claimants. Section 725.458 provides that Workers’ Compensation Act by not have to bear all the costs incurred
all parties must give 30 days notice of attempting to shift costs to employers in in determining their entitlement to
any deposition, and section 725.457(a) cases other than those authorized by benefits, even in the event that they are
provides that parties must give 10 days statute. Section 28(d), 33 U.S.C. 928(d), ultimately unsuccessful.
notice of expert witnesses who will incorporated into the Black Lung In drafting a regulation governing the
testify at the hearing. The commenter Benefits Act by 30 U.S.C. 932(a), payment of witnesses’ fees and costs,
has not suggested that these time requires an employer to pay the costs, the Department was cognizant of its
periods, which were contained in the fees, and mileage for necessary obligation to provide all parties with the
program’s former regulations, have witnesses attending the hearing at the right to conduct appropriate cross-
proved to be insufficient. request of a claimant in any case in examination of the witnesses offered by
(e) No other comments were received which an attorney’s fee is awarded opposing parties. In Richardson v.
concerning this section, and no changes against the employer. Section 28(d) also Perales, 402 U.S. 388, 409 (1971), the
have been made in it. requires that the necessity for the Supreme Court recognized that the
witness and the reasonableness of an ability to cross-examine the preparer of
20 CFR 725.459
expert witness fee be approved by an an ex parte medical report served as an
(a) The Department proposed revising administrative law judge, Benefits important guarantee of the reliability of
section 725.459 in its first notice of Review Board, or court. Section 28(a) such a report. Because the
proposed rulemaking in order to require limits an employer’s liability for overwhelming majority of medical
any party who compels a witness to attorneys’ fees to cases in which the issues in the adjudication of a black
appear at a deposition or hearing or claimant successfully prosecutes his lung benefits claim are decided on the
respond to interrogatories for the claim for benefits after the employer or basis of ex parte medical reports, rather
purpose of cross-examination to pay carrier contests the claimant’s than on testimony offered at the hearing,
that witness’s costs. The Department entitlement. Accordingly, the the Department must ensure that parties
also restructured and consolidated the commenter argues, the Department are permitted access to their opposing
remainder of the regulation. 62 FR 3362 cannot shift the cost of cross- party’s witnesses for the purpose of
(Jan. 22, 1997). The Department examination to employers in cases cross-examination.
reconsidered how such costs should be where the claimant is unsuccessful. At the same time, however, the
assigned in its second notice of The Department does not agree. The Department must ensure that parties are
proposed rulemaking, and proposed that Black Lung Benefits Act incorporates a not able to prevent an opposing party
the party offering the witness’s variety of Longshore Act provisions from offering a particular witness’
affirmative testimony should also pay governing the payment of costs and fees opinion simply by scheduling a
any costs associated with his to witnesses. As with all such deposition of that witness. This is a
subsequent cross-examination. The sole provisions, the Act explicitly authorizes particular problem where the claimant
exception to this rule pertained to the Department to vary the terms of is indigent. Such a claimant must
indigent claimants and required those incorporated provisions in order initially pay a physician to provide him
administrative law judges to apportion to properly administer the black lung with a medical opinion. If the operator
the costs of cross-examining a witness benefits program and effectuate exercises its right to cross-examine that
offered by such a claimant between the Congress’s intent in providing black physician, the claimant may not be able
claimant and the party or parties lung benefits. See 30 U.S.C. 932(a) to afford the additional fees and costs
defending the claim. 64 FR 54997 (Oct. (permitting the Secretary to ‘‘otherwise necessary to pay the physician for the
8, 1999). The second proposal also provide[] * * * by regulations * * *’’); time he spends answering
required an administrative law judge to Director, OWCP v. National Mines interrogatories or attending a
determine the least intrusive and Corp., 554 F.2d 1267, 1274 (4th Cir. deposition. Absent a mechanism
expensive means of cross-examination 1977). In addition to section 28 of the permitting the apportionment of such
as appropriate and necessary for a full Longshore Act, incorporated section 7 of costs, the claimant may be faced with
and true disclosure of the facts. 64 FR the Longshore Act also governs the the administrative law judge’s refusal to
55044 (Oct. 8, 1999). payment of costs by an operator. Section consider his doctor’s opinion because
(b) The Department has substituted 7(e) provides the Secretary with the the doctor was not made available for
the term ‘‘shall’’ for the term ‘‘may’’ in power to order an examination of an cross-examination. The Department
the fourth and fifth sentences of employee ‘‘[i]n the event that medical does not believe that Congress intended
subsection (b) in order to clarify its questions are raised in any case,’’ and to this result, and does not believe that a
intention that the administrative law authorize an additional review or party’s right to cross-examination
judge is required, rather than merely reexamination upon the request of any should be used to exclude evidence
permitted, to consider the party. 33 U.S.C. 907(e), as incorporated offered by an opposing party that cannot
apportionment of the costs of cross- by 30 U.S.C. 932(a). This statutory afford the costs of expert testimony.
examination in each case involving a section further provides that the In those few cases in which there
witness offered by an indigent claimant. Secretary may ‘‘charge the cost of might be tension, section 725.459 strikes
(c) Two comments approve of the examination or review under this an appropriate balance between the
Department’s revision of section subsection to the employer, if he is a twin goals of guaranteeing the right of
725.459 to impose the costs of self-insurer, or to the insurance cross-examination and ensuring a full
producing a witness for cross- company which is carrying the risk, in and fair adjudication of an indigent
examination upon the party relying on appropriate cases * * *.’’ Thus, by its claimant’s eligibility for benefits.
the witness’s opinion, as well as the explicit terms, the cost-shifting Consistent with incorporated Longshore
provision allowing administrative law mechanism of section 7(e) is not Act provisions, as varied in order to
accommodate the needs of the black v. Apfel, 173 F.3d 1049, 1057 (7th Cir. have rendered these objections moot
lung benefits program, and based on the 1999), quoting Central Freight Lines, except in one instance. As finally
Department’s inherent to authority fill Inc. v. United States, 669 F.2d 1063, revised, section 725.418 requires the
the statutory gaps left by Congress in the 1068 (5th Cir. 1982). The Court thus district director to dismiss all but one
Black Lung Benefits Act, the revised upheld a decision by SSA not to grant operator as a party before referring the
regulation governing witness’ fees a claimant’s subpoena to compel the case to the Office of Administrative Law
represents a sensible cost-spreading attendance at the hearing by two Judges. The Department has revised
measure in those relatively few cases in physicians who had examined the § 725.465 accordingly. If the district
which a claimant is indigent. claimant. See also Copeland v. Bowen, director erroneously fails to dismiss all
(e) One comment suggests that the 861 F.2d 536, 539 (9th Cir. 1988) operators except the one finally
Department’s witness fee regulation (holding that a disability claimant is designated responsible pursuant to
violates Supreme Court precedent. ‘‘not entitled to unlimited cross- section 725.418(d), the ALJ may do so
Although the commenter does not cite examination, but is entitled to such at any time. Subsection (b), however,
any specific decision, the Court’s cross-examination as may be required continues to prohibit the ALJ from
seminal decisions on cost-shifting, for a full and true disclosure of the dismissing the responsible operator
Crawford Fitting Co. v. J.T. Gibbons, facts.’’); Yancey v. Apfel, 145 F.3d 106, designated by the district director
Inc., 482 U.S. 437 (1987), and West 113 (6th Cir. 1998) (no absolute right to except upon the consent of the Director.
Virginia University Hospitals v. Casey, subpoena reporting physician); Flatford The Department believes that this
499 U.S. 83 (1991), do not prevent the v. Chater, 93 F.3d 1296, 1305 (6th Cir. regulation remains necessary to prevent
Department from shifting the costs of 1996) (same). Subsection (b) of the the premature dismissal of the
cross-examination to employers in revised regulation meets the APA designated operator by an
special circumstances. In Crawford standard by permitting the ALJ to administrative law judge. Currently,
Fitting, the Court discussed sections determine the level of cross- some administrative law judges resolve
1920 and 1821 of Title 28 of the United examination that is required for a full the responsible operator issue in a
States Code, which authorize shifting and true disclosure of the facts. preliminary decision, and may dismiss
witness fees of up to $40 per day. The (g) No other comments were received the responsible operator(s) identified by
Court ‘‘held that these provisions define concerning this section, and no changes the district director. In such cases, the
the full extent of a federal court’s power have been made in it. Director, as the representative of the
to shift litigation costs absent express Black Lung Disability Trust Fund, must
20 CFR 725.465
statutory authority to go further.’’ Casey, either file an interlocutory appeal with
499 U.S. at 86, explaining the decision (a) The Department made a technical
the Benefits Review Board, cf. Collins v.
in Crawford Fitting. As discussed above, change to section 725.465 in its first
notice of proposed rulemaking, but did J & L Steel, 21 Black Lung Rep. (MB) 1–
the Department believes that the Black 183, 1–1–186 (Ben. Rev. Bd. 1999), and
Lung Benefits Act, by incorporating not open the rule for comment. 62 FR
3341 (Jan. 22, 1997). In its second notice ask that the adjudication of claimant’s
various provisions of the Longshore Act entitlement be held in abeyance
and authorizing the Secretary to vary of proposed rulemaking, the Department
proposed revising subsection (b) to pending the outcome of the appeal, or
those provisions in order to administer await the ALJ’s resolution of the
the black lung program, provides ample prohibit administrative law judges from
dismissing potentially liable operators claimant’s entitlement and then file an
statutory authority for the Department’s appeal. Both options are problematic. If
cost-shifting regulation. The existence of previously identified by the district
director as parties to the case, except the Director files an interlocutory appeal
that authority compels the conclusion
upon the motion or the written and the Board rejects the Director’s
that the revised regulation does not
agreement of the Director. 64 FR 54997 arguments and affirms the dismissal, the
violate the Court’s decisions in
(Oct. 8, 1999). Director may be unable to seek further
Crawford Fitting and Casey.
(f) One comment argues that the (b) One comment argues that the review under the stricter standards that
Administrative Procedure Act does not Department’s proposed limitation on the the federal appellate courts apply to
provide the Department with the ability of administrative law judges to interlocutory orders. See, e.g., Redden v.
authority to limit a party’s right to cross- dismiss potentially liable operators as Director, OWCP, 825 F.2d 337, 338 (11th
examine an adverse witness. The parties to a case impermissibly usurps Cir. 1987), citing Coopers & Lybrand v.
Department discussed the extent to the authority of administrative law Livesay, 437 U.S. 463 (1978). If the
which the Black Lung Benefits Act judges and violates the Administrative Director waits until after the claimant’s
incorporates the Administrative Procedure Act. The commenter states eligibility is resolved to appeal the
Procedure Act and the extent to which that the proposal violates the responsible operator issue to the Board,
the Department may vary that fundamental rights of coal mine the Board may affirm the dismissal
incorporation by regulation in its operators and forces them to remain in solely because the operator did not have
second notice of proposed rulemaking. a proceeding after they have been an opportunity to participate in the
64 FR 54972 (Oct. 8, 1999). In addition, adjudicated not to be a proper party. adjudication of the merits of the claim.
the Administrative Procedure Act Finally, the commenter states that the Crabtree v. Bethlehem Steel Corp., 7
requires only that parties be allowed to proposal violates section 424(a) of the Black Lung Rep. (MB) 1–354 (Ben. Rev.
‘‘conduct such cross-examination as Act, 30 U.S.C. § 934(a). Bd. 1984). Neither of these options
may be required for a full and true The Department does not agree that represents an efficient means of
disclosure of the facts.’’ 5 U.S.C. 556(d). any party has a fundamental right to be resolving the issue of operator liability
The Seventh Circuit has recently dismissed from a black lung benefits in the context of adjudicating a miner’s
observed that, under the standard used adjudication prior to the final resolution eligibility for benefits.
by the Social Security Administration, a of the issue of operator liability. The The revised regulation is intended to
standard identical to the one in the Department’s final regulations, however, eliminate these problems, and ensure
Administrative Procedure Act, ‘‘ ‘[c]ross- governing the treatment of claims in that the designated responsible operator
examination is * * * not an absolute which more than one company has been and the Director have the opportunity to
right in administrative cases.’ ’’ Butera named as a potentially liable operator fully litigate the liability issue at all
levels. Moreover, the regulation does the Director’s representative veto power time, but simply recognizes the appeal
not create any undue hardships. If, after over an ALJ’s decision, as the time guaranteed by the statute.
considering all of the evidence relevant commenter asserts, simply protects the (c) No further comments have been
to the responsible operator issue, the interests of the Trust Fund, and ensures received concerning this section, and no
ALJ finds that the designated that the Director, as a party to the changes have been made in it.
responsible operator is not liable for the litigation, receives a complete 20 CFR 725.479
payment of benefits, but concludes that adjudication of his interests. The Board
the claimant is entitled to benefits, the has upheld the similar requirement in (a) In its first notice of proposed
operator merely has to wait until the subsection (d), which prohibits the rulemaking, the Department proposed
Director, on behalf of the Trust Fund, dismissal of a claim in which the adding subsection (d) to provide that the
files an appeal with the BRB. The claimant has been paid interim benefits 30-day period to appeal an
operator may then participate in that from the Trust Fund, absent the administrative law judge’s decision and
appeal in defense of the ALJ’s liability Director’s consent. Boggs v. Falcon Coal order will commence upon a party’s
determination if it wishes. If the Co., 17 Black Lung Rep. (MB) 1–62, 1– receipt of that document even though it
Director does not petition for review of 66 (1992). was not served by certified mail or there
the ALJ’s liability decision, the operator was some other defect in service. 62 FR
(c) No other comments have been
need not participate in any further 3363 (Jan. 22, 1997). The Department
received concerning this regulation and
adjudication of the case, regardless of did not discuss this regulation in its
no changes have been made in it.
whether it is formally included as a second notice of proposed rulemaking.
party. 20 CFR 725.478 See list of Changes in the Department’s
Moreover, the revised regulation Second Proposal, 64 FR 54971 (Oct. 8,
(a) The Department proposed revising 1999).
violates neither section 424 of the Black this regulation in its initial notice of
Lung Benefits Act, 30 U.S.C. 934, nor (b) Several comments suggest that
proposed rulemaking in order to subsection (d) is unnecessary because
the Administrative Procedure Act. recognize the opinions of three
Section 424 requires coal mine strict adherence to the requirement in
appellate courts and the Benefits § 725.478 for service of an
operators who have been determined to Review Board that had rejected the
be liable for the payment of benefits to administrative law judge’s decision by
Department’s interpretation of the certified mail would eliminate any
a claimant to reimburse the Black Lung former regulation. The Department had
Disability Trust Fund for amounts the question as to the date of receipt of that
argued that under the former regulation decision. Subsection (d) does not
Trust Fund paid to that claimant on an
an administrative law judge’s decision supplant the requirement for serving
interim basis. The statute requires,
and order should be considered filed on decisions by certified mail. It simply
however, that the operator’s liability
the date that the ALJ mailed it to the establishes that actual receipt of a
have been ‘‘finally determined’’ before
parties. The proposal adopted the view decision overcomes any technical defect
the reimbursement obligation may be
that the date of actual receipt of an in service for purposes of triggering
enforced. 30 U.S.C. 934(b)(4)(B). Under
administrative law judge’s decision and appeal and reconsideration rights. These
the incorporated provisions of the
order by the Division of Coal Mine defects are not limited to cases where
Workers’ Compensation (DCMWC) service is not made by certified mail.
Compensation Act, that final
constitutes its filing date and renders For example, a decision may be mailed
determination includes not only an
administrative law judge’s decision, but the decision effective. Thus, the date of to the wrong address but the party to
also decisions by the Benefits Review DCMWC’s receipt triggers the running of whom it should have been sent later
Board and the court of appeals. the 30-day period for challenging an learns of the decision and obtains a
Obviously, an appeal by an aggrieved administrative law judge’s decision. The copy. The revised regulation would
party, including the Director, OWCP, on proposal conformed the regulation to begin the 30-day appeal period upon
an operator liability issue cannot existing caselaw. 62 FR 3362–63 (Jan. that party’s receipt. The provision thus
proceed in the absence of all the 22, 1997). The Department also provides an element of finality to
necessary parties. Thus, it is necessary proposed moving the last two sentences decisions while protecting the parties’
that the designated responsible operator of the former regulation to a more rights to pursue litigation in a timely
remain a party to a claim even while it appropriate location in § 725.502. The manner.
is on appeal. Similarly, nothing in the Department did not discuss this (c) One comment objects to subsection
Administrative Procedure Act gives regulation in its second notice of (d) as too technical and subject to
administrative law judges the authority proposed rulemaking. See list of violation by unwary litigants. The
to issue final decisions on issues. Changes in the Department’s Second Department disagrees with this
Accordingly, the revised regulation does Proposal, 64 FR 54971 (Oct. 8, 1999). characterization. Subsection (d)
not violate any statutory provision. As (b) One comment stated that the eliminates any doubt that a party must
revised, § 725.465 simply ensures that revised regulation would extend the exercise its options for challenging a
no responsible operator designated by appeal time by several days, presumably decision in a timely manner once the
the district director will be dismissed because of the time used to send the file party has received the decision and
prior to a final determination of from the Office of Administrative Law despite any defect in service. This
claimant eligibility and operator Judges to DCMWC. The courts, however, provision therefore protects the
liability except with the approval of the rejected the Director’s interpretation of litigants’ rights and interests by
Director. the former regulation because it dispelling any confusion as to the
Finally, the regulation does not impermissibly shortened the 30-day effectiveness of any decision which
preclude the designated responsible statutory appeal time. Trent Coal Co. v. reaches the parties despite technical
operator, in a case in which the district Day, 739 F.2d 116, 118 (1984); nonconformance with the service
director committed an obvious error, Daugherty v. Director, OWCP, 897 F.2d process.
from seeking the written agreement of 740, 742 (1990). Following the (d) No other comments were received
the Director that it be dismissed as a reasoning of these decisions, the concerning this section, and no changes
party. The regulation, rather than giving revision does not lengthen the appeal have been made in it.
Subpart G (b) One comment suggests that coverage under the Black Lung Benefits
20 CFR 725.490 retroactive application of the Act. Accordingly, the regulations
Department’s revised responsible implementing the Black Lung Benefits
In its first notice of proposed operator regulations is impermissible. Act must recognize and account for the
rulemaking, the Department proposed Although these new regulations will extent of coverage provided by the
the reorganization and renaming of the apply only to claims filed after the date FMSHA.
rules governing the identification of on which the revisions become (c) One comment argues that even if
responsible coal mine operators. Section effective, see § 725.2, the commenter certain individuals, such as food service
725.490 retained its title and much of its argues that the Department is expanding workers, may be considered ‘‘miners’’
language. The Department proposed the scope of the term ‘‘operator,’’ and under the BLBA, the Department should
deleting the last clause of the last that with respect to refiled claims, the not require the employers of such
sentence of subsection (b), however, in newly amended definition will be individuals to bear liability for the
order to reflect a move to part 726 of the applied retroactively. In this regard, the payment of any benefits to which they
regulations governing the obligations of commenter argues that the Department’s become entitled. The commenter
coal mine operators to secure the reliance on the jurisdiction of the Mine suggests that the Department’s
payment of benefits. 62 FR 3363–65 Safety and Health Administration to regulation would require a number of
(Jan. 22, 1997). No comments were regulate under the Black Lung Benefits companies with only a tenuous
received concerning this section, and no Act is inappropriate. We understand the relationship to the mining of coal to
changes have been made in it. commenter’s argument to be that the purchase insurance in order to cover the
20 CFR 725.491 Department should not have relied on risk that they will be liable for the
cases decided under the Federal Mine payment of benefits. Adopting the
(a) The Department proposed revising commenter’s suggestion that these
section 725.491 in order to clarify the Safety and Health Act (FMSHA) in
promulgating its definition of the term companies should be exempt from
meaning of the statutory term liability, however, would require
‘‘operator.’’ 62 FR 3363 (Jan. 22, 1997). ‘‘operator.’’ The Department cited such
cases in both notices of proposed imposing potential liability for their
Section 725.491 retains some material employees’ claims on the Black Lung
from the Secretary’s current regulations, rulemaking. 62 FR 3364 (Jan. 22, 1997);
64 FR 54997–98 (Oct. 8, 1999). The Disability Trust Fund. In its initial
such as the rebuttable presumption of proposal, the Department took note of
exposure to dust currently found in 20 commenter suggests that the MSHA’s
jurisdiction is based on an agreement Congress’ intent that the coal mining
CFR 725.492(c). Much of section industry, rather than the Black Lung
725.491’s language is new, however. In with the Occupational Safety and
Health Administration (OSHA) to Disability Trust Fund, bear liability for
particular, the Department sought to the payment of individual claims to the
ensure that terms critical to the ensure that all American workplaces are
subject to inspection by one of the two maximum extent feasible. See 62 FR
identification of a company potentially 3363 (Jan. 22, 1997). Accordingly, if
liable for the payment of benefits under agencies, and that the Department’s
adoption of FMSHA criteria represents individuals whose work is integral to
the Black Lung Benefits Act, such as the extraction or preparation of coal but
‘‘owner’’ and ‘‘independent contractor,’’ an expansion of coverage under the
Black Lung Benefits Act. who may not be considered traditional
were defined broadly in keeping with coal miners are determined to be
Congress’ intent that the coal mining The Department disagrees with the entitled to benefits under the Act as a
industry bear liability for individual premise of the argument. The Black result of occupational exposure to coal
claims to the maximum extent feasible. Lung Benefits Act, which is subchapter mine dust, their employers must bear
The Department’s goal in proposing IV of the Federal Mine Safety and responsibility for the payment of those
these revisions was to insure that any Health Act, has incorporated the benefits. For example, individuals who
company, partnership, or individual definition of the term ‘‘operator’’ found transport coal during the extraction or
that employed a ‘‘miner’’ could be held in section 3(d) of the FMSHA, 30 U.S.C. preparation process, Norfolk & Western
liable under the Act. The regulation also 802(d), since its enactment in 1969. The Railway Co. v. Roberson, 918 F.2d 1144,
implements the Department’s view that Secretary’s regulations do not attempt to 1149–50 (4th Cir. 1990), cert. denied,
the officers of an uninsured corporate expand that definition, either by 500 U.S. 916, and who deliver supplies
coal mine operator should not be imposing liability on companies that are essential to the extraction or preparation
considered coal mine operators in their not currently liable for benefits, or by of coal, Pinkham v. Director, OWCP, 7
own right. The Benefits Review Board increasing the number of employees for Black Lung Rep. (MB) 1–55, 1–57 (Ben.
has recently accepted that view with which a coal mine operator may be held Rev. Bd. 1984), have been determined to
respect to the Department’s current liable. The Black Lung Benefits Act and be ‘‘miners’’ under the Black Lung
regulations. Lester v. Mack Coal Co., 21 the Secretary’s implementing Benefits Act. The regulatory definition
Black Lung Rep. (MB) 1–126, 1–130–131 regulations have consistently contained of the term ‘‘operator’’ must be broad
(Ben. Rev. Bd. 1999). expansive definitions of terms such as enough to ensure that the employer of
In its second notice of proposed ‘‘operator’’ and ‘‘independent such an individual bears direct liability
rulemaking, the Department revised contractor,’’ see, e.g., 20 CFR for any benefits to which the miner is
subsection (a)(2)(i) in response to one 725.491(b)(1)(company need not entitled.
comment to ensure the consistent use of directly supervise work in order to be (d) One comment objects to the
the term ‘‘coal mine dust’’ rather than considered an operator). In addition, Department’s exclusion in subsection (f)
‘‘coal dust.’’ 64 FR 54998 (Oct. 8, 1999). regardless of any agreement between of state and federal governments from
In addition, the Department responded MSHA and OSHA, the definitions set the term ‘‘operator.’’ With respect to
to comments about its definition of forth in the FMSHA create an outer state governments, the commenter
independent contractors in subsection limit for MSHA’s jurisdiction; MSHA argues that there is no indication that
(c) and its exclusion of the federal simply cannot exercise authority over Congress intended to exempt the states
government and state governments as employers and activities not covered by from the Act’s broad coverage of coal
operators in subsection (f). 64 FR the FMSHA. These definitional mine operators. As the Department has
54997–98 (Oct. 8, 1999). provisions also govern the extent of previously explained, however, the test
under relevant Supreme Court decisions demonstrated interest in ensuring that a entity that supervises that work. 64 FR
is not whether Congress indicated its wide variety of commercial transactions 54999 (Oct. 8, 1999).
intention to exempt the states from was sufficient to give rise to successor (b) One comment states that the
coverage, but whether Congress liability under the Black Lung Benefits Department’s regulation will eliminate
indicated a clear intention to include Act. 30 U.S.C. 932(i)(3). The Department the current operator practice of leasing
the states. See 64 FR 54998 (Oct. 8, did not make any additional revisions to employees. The Department’s response
1999), discussing Gregory v. Ashcroft, this regulation in its 1999 proposal, 64 to this comment is set forth under
501 U.S. 452 (1991). The commenter FR 54998–99 (Oct. 8, 1999), but did section 726.8. No other comments have
does not allege that the BLBA meets this respond to two comments relating to the been received concerning this section,
test with respect to state governments, purchase of coal assets in a corporate and no changes have been made in it.
noting only that the language of the Act reorganization or liquidation and the 20 CFR 725.494
could easily be construed to cover state primary liability of a prior operator’s
employees. Although the commenter insurance company. (a) Section 725.494 provides the
also objects to the exemption from (b) One comment states that criteria for the identification of one or
liability under the Black Lung Benefits subsection (e) exceeds the scope of the more ‘‘potentially liable operators’’ with
Act of the federal government, it argues Act by suggesting that a purchase of respect to a claim for benefits. 62 FR
that federal mine inspectors, the only mineral rights alone may be sufficient to 3364 (Jan. 22, 1997). For each claim, the
federal employees who could be attach liability to the purchaser as a group potentially includes all of those
potentially covered by the BLBA, successor operator. The commenter operators who meet the criteria
should not be considered ‘‘miners.’’ The argues that the BLBA imposes liability currently contained in 20 CFR 725.492
Department agrees, and has taken the only on operators of coal mines. and 725.493 (e.g., employment of the
same position in litigation. Subsection (e) defines ‘‘acquisition’’ of a miner for a year, including at least one
The commenter’s true complaint coal mine to include any transaction day after December 31, 1969). This
appears to be that the liability for that transfers the right to extract or revised regulation also explains the
benefits payable to a claimant who was prepare coal at a mine. This regulation factors used to consider whether a
a miner before he became a coal mine is based on the statutory definition of an company is financially capable of
inspector will fall on the operator that ‘‘operator,’’ which includes not only the assuming liability for the payment of
employed the claimant as a miner. The operator of a mine but also the mine’s benefits. In the second notice of
Fourth Circuit interpreted the owner. 30 U.S.C. 802(d). In addition, the proposed rulemaking, the Department
Department’s current regulations to Department’s regulations have long made several technical changes to the
require this result in Eastern Associated recognized that the lessor of coal mining regulation to make it easier to read. 64
Coal Corp. v. Director, OWCP, 791 F.2d property may bear liability for the FR 54999 (Oct. 8, 1999). The
1129, 1131–32 (4th Cir. 1986). payment of benefits in certain cases. See Department responded to one comment
Specifically, the court held that to the 20 CFR 725.491(b)(2) (1999). The contending that the presumption in
extent that an individual contracts Department does agree, however, that, subsection (a) was illegal by citing the
pneumoconiosis as a result of work as in order to become liable as a successor broad statutory grant of authority given
a federal coal mine inspector, his operator, the acquirer of mining the Department to create regulatory
exclusive remedy against the property must continue to derive an presumptions and by noting that the
government lies under the Federal economic benefit from the coal on the presumption appears in the current
Employees’ Compensation Act (FECA), property. Thus, the mere acquisition of regulations at 20 CFR 725.493(a)(6). The
5 U.S.C. 8101 et seq. If such an mineral rights alone, without the actual Department responded to a comment
individual is also able to obtain benefits extraction, preparation, or concerning subsection (e) by explaining
under the Black Lung Benefits Act, transportation of coal, or coal mine that subsection (e) did not contain a
based on other work as a miner, liability construction, will not subject the presumption, but simply recited the
for those benefits rests with the coal acquirer to successor operator liability. evidence needed to support a finding
mine operator that most recently (c) No other comments have been that an operator is financially capable of
employed the individual as a miner. See received concerning this section. The assuming liability for the payment of
also Consolidation Coal Co. v. Borda, Department has added a comma in benefits. The Department further
171 F.3d 175, 179 (4th Cir. 1999). The subsection (c) and deleted a comma in explained that the criteria in section
commenter has offered no reason for the subsection (d)(1) in order to clarify the 725.494 have no effect on a miner’s
Department to revise its regulation to punctuation of the regulation. eligibility for benefits.
produce a different outcome. (b) One comment received in
20 CFR 725.493 connection with the Department’s
(e) No other comments have been
received concerning this section, and no (a) In its first notice of proposed consideration of alternatives under the
changes have been made in it. rulemaking, the Department proposed Regulatory Flexibility Act urges the
revising section 725.493 to define the Department to identify only the coal
20 CFR 725.492 required relationship between a coal mine operator that is most likely to be
(a) The Department proposed revising mine operator and a coal miner, the liable for the payment of benefits as the
section 725.492 to specifically define statutory basis for an operator’s liability responsible operator. The commenter
the term ‘‘successor operator’’ and for the miner’s claim under the Black does not distinguish between processing
address the issues posed by this Lung Benefits Act. 30 U.S.C. 932(a). 62 the claim at the district director level
category of coal mine operator. 62 FR FR 3364 (Jan. 22, 1997). The Department and the formal adjudication of the claim
3364 (Jan. 22, 1997). The revised made a technical change in its second beyond that level. The commenter’s
regulation largely tracks the language of notice of proposed rulemaking. It also main concern, however, appears to be
section 422(i) of the Act, 30 U.S.C. added more specific language to the transaction costs imposed by the
932(i), and provisions contained in the subsection (a)(1) to recognize as proposed ‘‘joint defense’’ requirement.
current version of 20 CFR 725.493. In sufficient to establish the requisite The Department has eliminated the
addition, the Department clarified the employment relationship a variety of requirement that operators participate in
definition to give effect to Congress’ arrangements between a worker and the the joint defense of the claimant’s
entitlement by prohibiting more than development of the responsible operator financial inability to pay benefits of
one operator from participating in a case issue is permissible. another coal mine operator who more
beyond the district director level, and (c) No comments have been received recently employed the miner is the
by requiring the district director to specifically relating to this section, and responsibility of the Department. For
exclude from the record any no changes have been made in it. example, the commenter notes, the
documentary medical evidence 20 CFR 725.495 Department accepted as insurers a
submitted by an operator other than the number of ‘‘group self-insurance
(a) Section 725.495 contains the associations’’ that are currently unable
finally designated responsible operator.
criteria for deciding which of the to make benefit payments because they
See explanation accompanying
miner’s former employers will be the did not adequately secure the payment
§§ 725.414, 725.415, 725.421. This
responsible operator liable for the of claims for which they were ultimately
revision does not require any alteration payment of benefits to the miner and/or
in the text of § 725.494. To the extent held liable. Under section 423(a)(2) of
his survivors. 62 FR 3364–65 (Jan. 22, the Act, 30 U.S.C. 933(a)(2), however,
that the commenter is objecting to the 1997). From among the employers that
district director’s notification of more the Department is obligated to accept
meet the criteria in § 725.494 for a insurance coverage from any company,
than one operator as potentially liable potentially liable operator, section association, person or fund that is
operators, the Department’s explanation 725.495 assigns liability to the company authorized under the laws of any State
of the need for this requirement is set that most recently employed the miner. to insure workmen’s compensation.
forth in the preamble to § 725.407. In addition, the regulation explicitly Compare 33 U.S.C. 932(a)(1)(B)
In addition, a number of courts have assigns burdens of proof in the (Longshore and Harbor Workers’
been critical of the length of time it adjudication of the responsible operator Compensation Act provision giving the
takes to resolve individual black lung issue. The regulation thus fills the Department authority to approve
benefits claims, see, e.g., C&K Coal Co. regulatory void noted by the Fourth insurers under that Act). Accordingly,
v. Taylor, 165 F.3d 254, 258 (3d Cir. Circuit in Director, OWCP v. Trace Fork the Department’s ‘‘decision’’ to accept
1999), and have held that the delays Coal Co., 67 F.3d 503, 507 (4th Cir. these state group associations as
may deprive operators of their due 1995). In its second notice of proposed insurers was not based on an exercise of
process rights. Lane Hollow Coal Co. v. rulemaking, the Department again discretion but rather on the
Director, OWCP, 137 F.3d 799, 807 (4th addressed this issue, rejecting understanding that they were
Cir. 1998). Some of these delays have arguments that the Department’s authorized under the laws of their states
been caused by remands from the Office assignment of burdens of proof violated to insure workers’ compensation. The
of Administrative Law Judges in order the Fourth Circuit’s decision. 64 FR Department thus did not voluntarily
to require the identification of 54999 (Oct. 8, 1999). assume the risk that these associations
(b) The Department has revised the would become insolvent.
additional responsible operators and the
language of the first sentence of By contrast, the Department does have
development of more evidence on
subsection (d) to reflect changes in the the authority to accept or reject
responsible operator issues. The
manner in which the district director applications for self-insurance and to set
Department’s revised regulations will process claims, set forth in
governing the identification and the minimum standards applicable for
§§ 725.410–725.413, as well as the qualifying as a self-insurer. 30 U.S.C.
adjudication of the liable coal mine change in § 725.418(d) which prohibits
operator are intended to prevent such 933(a)(1). To the extent that the security
the district director from forwarding a deposited by a self-insured coal mine
delays from occurring in the future. In case to the Office of Administrative Law
all claims filed after the effective date of operator pursuant to § 726.104 proves
Judges with more than one operator as insufficient to pay individual claims,
these revisions, the Department will a party. See explanation accompanying
have only one opportunity, while the the Department agrees that the liability
§ 725.414. The district director will for those claims should not be placed on
case is pending before the district identify the designated responsible operators that previously employed the
director, to obtain evidence from the operator in a document titled a schedule miner. Rather, in establishing the
operators that employed the miner. To for the submission of additional amount of security required, the
facilitate the district director’s evidence rather than in an initial Department voluntarily accepts the risk
resolution of the responsible operator finding. See explanation accompanying that self-insured operators will not have
issue, the regulations require the §§ 725.410–725.413. Moreover, to help deposited sufficient security to pay
submission of evidence relevant to the ensure that the district director properly claims if they are liquidated or become
criteria in section 725.494 to the district identifies the responsible operator, bankrupt.
director and enhance the district sections 725.415 and 725.417 permit the Accordingly, the Department has
director’s ability to use subpoenas to district director to re-designate the added paragraph (a)(4) to section
compel the production of additional responsible operator, by issuing another 725.495. The regulation does not affect
documents. Once all of this evidence is schedule for the submission of the liability of any operator that
forwarded to the Office of additional evidence, if he determines employed the miner after his
Administrative Law Judges for a formal that his initial designation may have employment with the self-insured
hearing, the administrative law judge been erroneous. See explanation operator ended, even if that latter
assigned to the case will determine, in accompanying §§ 725.415 and 725.417. employment only lasted one day,
light of the evidentiary burdens Accordingly, the Department has provided the miner’s cumulative period
imposed by section 725.495, whether replaced the reference in subsection (d) with that employer totalled at least one
the district director designated the to the operator ‘‘initially found liable’’ year. In determining the length of this
proper responsible operator. If the with a reference to the operator that is cumulative period, the factfinder should
administrative law judge determines ‘‘finally designated’’ as the responsible include any period for which the
that the district director did not operator. employer is considered a successor
designate the proper responsible (c) One comment suggests that a operator to the miner’s actual employer,
operator, liability will fall on the Trust miner’s prior employer should not have see C&K Coal Co. v. Taylor, 165 F.3d
Fund. No remand for further to bear liability for a claim when the 254, 257 (3d Cir. 1999). Like the
remainder of section 725.495, this 372 F. Supp. 16, 24 (D.D.C.), aff’d, 419 changes were designed to make clear to
provision shall be applicable only to U.S. 955 (1974). The burdens imposed responsible operators their obligations
claims filed after the date upon which by section 725.495 are thus fully under the terms of an effective award of
these revisions become effective. This consistent with the statutory authority benefits even though the claim might
provision does not affect the liability of granted the Department. still be in litigation. By clarifying the
any operator that employed the miner (f) Two comments argue that obligations of a liable party pursuant to
after he left employment with the self- potentially liable operators should not an effective award, the Department
insured operator. be required to submit all of their hoped to promote operator compliance.
(d) Several comments continue to evidence demonstrating the liability of 62 FR 3366 (Jan. 22, 1997). The
object to the imposition of a burden of other more recent of the miner’s Department therefore proposed that a
proof on the potentially liable operator employers within the first 90 days after responsible operator pay all of the
that the Department designates as the they receive notice of the claim. As the benefits due under the terms of an
responsible operator. The regulation Department has discussed more fully in effective award, i.e., both prospective
imposes on the Department the initial its response to comments concerning monthly benefits and retroactive
burden of establishing that the section 725.408, the 90-day time limit in benefits. The proposed regulation also
designated operator is a potentially that regulation is applicable only to the defined when benefits become due after
liable operator, assisted by a submission of evidence, generally the issuance of an ‘‘effective’’ decision
presumption in subsection (b) that the within the control of an operator awarding benefits. 62 FR 3412–13 (Jan.
designated operator is financially notified by the Department, which 22, 1997). Coupled with an assessment
capable of assuming liability for the establishes that the operator is not a of an additional twenty-percent of any
payment of benefits. In addition, if the potentially liable operator in the claim. unpaid compensation (33 U.S.C. 914(f)
district director designates as the This includes evidence that the as incorporated by 30 U.S.C. 932(b),
responsible operator any operator other employer was not an operator for any proposed § 725.607), proposed § 725.502
than the miner’s most recent employer, period after June 30, 1973; that the substantially clarified the responsible
he must include in the record a operator did not employ the miner as a operator’s benefit payment obligations.
statement explaining the reasons for his miner for a cumulative period of at least In its second notice of proposed
finding and, if appropriate, an one year; that the miner was not rulemaking, the Department responded
explanation of the Department’s search exposed to coal mine dust while to comments opposing the changes.
of its insurance files. The burden then working for the employer; that the
shifts to the designated responsible Without disputing the statutory
miner’s employment did not include at incorporation of § 14(f), the commenters
operator to prove either that it is least one working day after December
financially incapable of assuming contended that the addition of twenty-
31, 1969; and that the employer is percent of unpaid compensation to late
liability for the payment of benefits or financially incapable of assuming
that another potentially liable operator payments was punitive. They also
liability for the payment of benefits. See opposed the obligation to pay
(i.e., an operator that meets the criteria §§ 725.408(a)(2)(i)–(v), 725.494(a)–(e).
in § 725.494) employed the miner more retroactive benefits while an award was
By contrast, documentary evidence on appeal, arguing such a requirement
recently. The Department’s rationale for submitted to demonstrate a more recent
this revision is fully set forth in its violated Congressional intent and that
employer’s potential liability is recovery of those payments was
explanation of the original proposal. 62 governed by section 725.414, which
FR 3363–65 (Jan. 22, 1997). unlikely in the event the award was
states that the evidence must be overturned. 64 FR 54999–55000 (Oct. 8,
(e) One comment argues that the
submitted pursuant to a schedule 1999). Citing Congressional intent that
Department’s imposition of the burden
of proof on the designated responsible established by the district director after the coal industry bear primary
operator violates the Supreme Court’s a party has indicated its dissatisfaction responsibility for benefits, the
decisions in Director, OWCP v. with the district director’s initial Department defended the assessment of
Greenwich Collieries, 512 U.S. 267 findings of eligibility and liability. The an additional twenty-percent of unpaid
(1994) and Metropolitan Stevedore Co. submission of this evidence is therefore compensation as a means to promote
v. Rambo, 117 S. Ct. 1953 (1997), as not subject to the 90-day time limit. prompt compliance with effective
well as the Administrative Procedure (g) No other comments have been awards. The Department noted its
Act. The Department’s response to this received concerning this section, and no concern that operators rarely paid
comment is fully set forth at 64 FR other changes have been made in it. benefits while an award was on appeal,
54972–74 (Oct. 8, 1999). Congress gave 20 CFR 725.497 thereby shifting the financial burden
the Department particularly broad and ultimate risk of loss to the Trust
authority to promulgate regulations Although the Department received Fund. Moreover, the Department noted
governing the identification of the comments relevant to this section, the that requiring payment of retroactive
operator responsible for the payment of regulation was not open for comment, benefits during active litigation was
benefits, 30 U.S.C. 932(h), including the see 62 Fed. Reg. 3341 (Jan. 22, 1997); 64 consistent with Congressional intent.
authority to create ‘‘appropriate Fed. Reg. 54971 (Oct. 8, 1999). It was The liable party is generally required to
presumptions’’ for determining whether inadvertently omitted from the list of pay all benefits due the claimant under
pneumoconiosis arose out of a miner’s technical revisions. Accordingly, no the terms of an effective award, and the
employment with an individual coal changes are being made in this section. ‘‘benefits due’’ include retroactive
company, and to establish ‘‘standards Subpart H benefits. Congress enacted one
for apportioning liability among more exception: the Trust Fund is authorized
than one operator, where such 20 CFR 725.502 to pay only future monthly benefits
apportionment is appropriate.’’ This (a) The Department proposed when it pays on behalf of an operator.
authority has been construed to permit significant changes to the current 64 FR 55000 (Oct. 8, 1999). In response
the assignment of liability to a single § 725.502 in its initial notice of to another comment, the Department
operator. See National Independent proposed rulemaking. 62 FR 3412–13 agreed that the law clearly requires the
Coal Operators Association v. Brennan, (Jan. 22, 1997). The most important Trust Fund to pay interim benefits if an
operator obtains a stay of payments. The payments and lead to larger, and more supports the Department’s position. The
Department also concluded the numerous, overpayments. Finally, the historical antecedents are described in
proposed regulation required the comment objects to § 725.502(c), which detail in Old Ben Coal Co. v. Luker, 826
operator to continue to pay benefits requires the payment of one month of F.2d 688, 693–94 (7th Cir. 1987).
despite the pendency of a modification benefits if the miner-claimant dies in Briefly, Congress created the Fund in
petition until a new effective order is the month when eligibility commences. 1978 to relieve the federal government
issued pursuant to § 725.310. Finally, The comment states that the provision, of its de facto primary financial
the Department reiterated its view that in effect, allows duplicate benefits for responsibility for the Part C program.
prospective monthly benefits are due that month in the event the survivor The Fund assumed responsibility for
and ‘‘shall be paid’’ when an becomes entitled to benefits. claims for which no operator was liable
administrative law judge’s award (c) The criticisms leveled at or in which the responsible operator
becomes effective, i.e., when the order is § 725.502(b)(2) rest on one basic defaulted on its payment obligations.
filed in the office of the district director. premise: Since 1981, Congress has Congress intended to ‘‘ensure that
The Department did propose one change intended for the Trust Fund to pay individual coal operators rather than the
to § 725.502(b)(1) in its second notice. prospective monthly benefits in all trust fund bear the liability for claims
That change made monthly benefits due awarded claims remaining in litigation arising out of such operator’s mines to
on the fifteenth day of the month in which there is potential operator the maximum extent feasible.’’ S. Rep.
following the month for which the liability. Based on this premise, the 95–209, 95th Cong., 1st Sess. 9 (1977),
benefits are paid, instead of the first commenter contends that an operator reprinted in Committee on Education
business day of that month as originally cannot be compelled by means of the and Labor, House of Representatives,
proposed. 64 FR 55050 (Oct. 8, 1999). § 14(f) ‘‘penalty’’ to pay any benefits— 96th Cong., Black Lung Benefits Reform
The Department has proposed one retroactive or prospective—until the Act and Black Lung Benefits Revenue
minor change in the final rule. award is final because no retroactive Act of 1977 at 612 (Comm. Print) (1979)
Subsection (b)(2) requires the district benefits are due and the Trust Fund is (emphasis supplied). By the conclusion
director to compute the amount of liable for the prospective benefits of the 1981 fiscal year, however, the
retroactive benefits and interest a pending entry of a final award. The Fund had accumulated a deficit of
responsible operator owes the claimant, Department disagrees with the approximately $1.5 billion. H.R. Rep.
and to inform the parties. The comment’s premise and the conclusions 97–406, 97th Cong., 1st Sess. 4 (1981),
Department has added language at the derived from it. reprinted in U.S.C. C. & A.N. 2673.
end of the last sentence of subsection As an initial matter, the comment Individual responsible operators had
(b)(2) to clarify that the district director does not cite any statutory section, legal also become burdened with
authority, legislative history or other
must attach a current table of applicable unanticipated retroactive liabilities from
evidence for its position as to
interest rates to the computation. denied claims which were reopened and
Congressional intent and the operation
(b) The Department has received one approved under the 1978 legislation.
of the Trust Fund. It relies, instead, on
new comment in response to the second Congressional concern over the Trust
an ‘‘understanding’’ or ‘‘agreement’’
notice of proposed rulemaking. The Fund’s deficit prompted changes to the
between Congress and the members of
commenter renews the objections stated BLBA in 1981; the remedial actions
the public affected by the 1981
in its response to the initial notice of included raising the excise tax on coal
amendments to the Black Lung Benefits
proposed rulemaking, contending the that provided revenue for the Fund,
Act (BLBA). None of the available
Department did not respond adequately increasing the interest rate on operator
material, however, supports the
to its concerns in the 1999 preamble liabilities to the Fund, and tightening
comment’s views.
discussion. The comment cites several First, the expenditures which the eligibility criteria for claimants.
objections to requiring payment of Fund may undertake are a matter of Congress also relieved a limited group
retroactive benefits while an award is on statutory mandate. Under the Internal of operators from their retroactive
appeal, and also objects to the Revenue Code (in which the Trust Fund liabilities based on the procedural
assessment of the twenty-percent provisions appear), monies are available histories of certain claims. These
additional compensation for failure to if ‘‘the operator liable for the payment liabilities transferred to the Fund.
pay such benefits. Specifically, the of such benefits * * * has not made a Finally, Congress limited the Trust
comment argues that use of the twenty- payment within 30 days after that Fund to paying only prospective
percent additional compensation is payment is due[.]’’ 26 U.S.C. benefits if a responsible operator failed
inconsistent with Congressional intent 9501(d)(1)(A)(ii). The only limitation or refused to pay after entry of an initial
because the assessment was intended prohibits the payment of retroactive determination of entitlement. The 1981
only to help claimants obtain prompt benefits by the Fund on behalf of Amendments, however, did not disturb
payment, and not reduce Trust Fund operators in claims filed after the 1981 the operator’s legal obligation to pay all
outlays. The comment also contends amendments. 26 U.S.C. 9501(d)(1)(A). benefits due under an effective award.
Congress intended the Fund to pay The provision is clear: The operator is 127 Cong. Rec. 29,932 (1981).
interim benefits during litigation on liable for any benefits which are due, Against this background, the
behalf of operators, and recoup those and the Fund will pay only prospective comment’s position is untenable. In
payments from operators only after the benefits if the operator defaults. Section 1981, Congress amended the BLBA, in
claimant ultimately prevails. In the 9501(d)(1)(A)(ii) does not suggest large part because the Fund was in
commenter’s view, Congress intended Congress intended as a routine practice economic crisis. The objective of the
the Fund to share the risk of to relieve the operator of the obligation amendments was to eliminate the deficit
unsupportable awards with operators by to pay benefits which are due while the by increasing revenues and revising
assuming the operator’s liability until claimant’s entitlement remains in eligibility criteria. A fiscally-concerned
litigation concluded and the validity of dispute. Congress would not then impose on the
the award was established. The Second, the legislative history of the Fund the operators’ collective liability
comment criticizes § 725.502(b)(2) creation and later-amended operation of for benefits pending conclusion of
because it will increase operator the Black Lung Disability Trust Fund entitlement litigation in every claim.
The ability to recoup from the operator in response to the regulation, nor did proposed rulemaking, the Department
the amount paid by the Fund if the the Department receive any comments altered § 725.502(d)(2), noting a concern
award survived litigation, plus interest, in response to its initial notice of that the regulation as originally
would restore only some of the revenues proposed rulemaking. See also 20 CFR proposed would generate too much
expended on interim benefits. Initial 410.226(a). In any event, the payment of litigation. 64 FR 55001, 55050 (Oct. 8,
awards which were eventually benefits twice for the same month of 1999). The reproposed version required
overturned would become eligibility in these circumstances is the actual onset date of entitlement to be
overpayments; recovering overpayments proper. The program has always paid determined if possible. If that date could
from a largely elderly and unemployed benefits for periods during which the not be ascertained, however,
population was problematic at best. miner established (s)he was totally § 725.503(d)(2) set a default onset date
Given these circumstances, the disabled by pneumoconiosis arising out using the date the miner filed the
Department rejects the argument that of coal mine employment. 33 U.S.C. modification petition. The Department
Congress intended the Fund to absorb 906(a), as incorporated by 30 U.S.C. adopted this approach because the filing
all operators’ liabilities as a matter of 932(a), 922(a)(1). Although generally a date of the application for benefits is the
course until the conclusion of litigation miner’s entitlement terminates in the default onset date for approved miners’
in every approved claim. month before the month of death claims (20 CFR 725.503(b)), and that
The Department also rejects the (§ 725.203(b)(1)), § 725.502(c) creates an method had worked well in the
comment’s argument that vigorous use exception to that rule to recognize the adjudication of black lung claims in
of the payment of additional successful prosecution of a claim, albeit general. The Department therefore
compensation pursuant to section 14(f) only for one month of benefits. The proposed using a similar method in
is contrary to Congressional intent. The program also pays survivor’s benefits to change in conditions cases. 64 FR 55001
Department provided a detailed eligible recipients if a miner dies due to (Oct. 8, 1999). Use of a filing date
response to this argument in its second pneumoconiosis, 30 U.S.C. 922(a)(2), reflects ‘‘the logical premise’’ that the
notice of proposed rulemaking. 64 FR and begins such benefit payments with miner would file a claim or a
54999–55000 (Oct. 8, 1999). The the month of the miner’s death, 20 CFR modification petition when (s)he
response cited Congress’ intention to 725.212–725.213. The statute does not believed (s)he is entitled to benefits. In
impose liability on the operators to the prohibit the payment of benefits twice the final rule, the Department has made
maximum feasible extent, together with in one month in the rare event a miner two minor changes to § 725.503(b) and
the provision’s purpose to ensure the entitled to benefits for disability dies (c). Each subsection begins with similar
operator’s prompt compliance with its due to pneumoconiosis in the first language referring to the entitled
benefit obligations. The only significant month of his or her eligibility. No individual to whom benefits are
concern shown by Congress with change in the regulation is necessary. payable, i.e., the miner entitled to
respect to the use of section 14(f) was (e) No other comments were received benefits (subsection (b)), and the
the caveat that the provision not apply concerning this section, and no other survivor entitled to benefits (subsection
until the operator ‘‘has the right to changes have been made in it. (c)). The purpose of this change is
contest the claim.’’ 127 Cong. Rec. 19, simply to use parallel language in each
20 CFR 725.503
645 (1981). This concern is met by the subsection to identify the individual
requirement that § 14(f) does not apply (a) In its initial notice of proposed
rulemaking, the Department proposed receiving benefits.
until an effective award is in place, and
an effective award arises only after the adding § 725.503(d) to provide specific (b) One comment opposes the use of
operator has had an opportunity for a guidelines for determining the onset default onset dates for both claims and
hearing. The Department believes date for benefits awarded based on a modification petitions. The comment
§ 725.502(b) promotes Congress’ overall modification petition. The proposed contends the default date creates a
objective to shift liability for the rule set forth the date from which presumption of entitlement to benefits
payment of benefits to those operators benefits would be payable based either as of the filing date when the claimant
who owe the benefits. The significance on a mistake in a determination of fact has not proven this fact. The commenter
of this objective has become more or on a change in the miner’s condition. believes such a presumption violates the
obvious since the 1981 amendments. 62 FR 3366, 3412–13 (Jan. 22, 1997). In Administrative Procedure Act (APA), 5
The Fund’s indebtedness to the U.S. the case of a mistaken factual U.S.C. 556(d), and the Supreme Court’s
Treasury at the conclusion of fiscal year determination, the proposal employed decision in Director, OWCP v.
1997 was $ 5.487 billion. OWCP Annual the rules used in a miner’s or a Greenwich Collieries, 512 U.S. 267
Report to Congress for FY 1997 at 24. survivor’s claim. If the award was based (1994). The Department disagrees with
(d) The comment challenges the on a change in conditions and if the the general proposition that a default
allowance of one month of benefits if precise month in which the miner onset date based on a presumption of
the miner dies in the first month during became disabled could not be entitlement as of a certain date violates
which all eligibility requirements are ascertained, the proposed rule pegged the APA and Greenwich Collieries. The
established. The comment contends that the onset date to the earliest evidence Department addressed this issue at
such a payment is not authorized by supporting an element of entitlement length in its second notice of proposed
statute, and that a duplicate payment not previously found in the claimant’s rulemaking. 64 FR 54972–74 (Oct. 8,
occurs if the miner-claimant dies and favor, provided the evidence was 1999). To summarize: the Federal Mine
the survivor establishes entitlement developed after the most recent Safety and Health Act (FMSHA), of
independently because the miner’s factfinder’s denial of benefits. The which the Black Lung Benefits Act
death was due to pneumoconiosis. The proposed regulation drew criticism both (BLBA) is a part, generally is exempt
Department rejects this argument as a for setting the onset date too late and for from the provisions of the APA. 30
reason for eliminating the provision. As setting it too early, thereby allegedly U.S.C. 956. The BLBA, however,
an initial matter, this provision was first violating a statutory requirement incorporates section 19 of the Longshore
promulgated as part of the original prohibiting the payment of benefits and Harbor Workers’ Compensation Act
§ 725.502. See 43 FR 36806 (Aug. 18, before the onset of the miner’s (LHWCA), 33 U.S.C. 919(d), thereby
1978). No comments were received then entitlement. In the second notice of making the APA applicable to the
adjudication of claims. The Boggs (concurring), however, agreed with the adjudicator’s findings in the
incorporation of the APA (and 5 U.S.C. with Judge Moore (dissenting) ‘‘that it underlying award of benefits. If the
556(d) in particular) is subject to one would not necessarily contravene adjudicator has accepted evidence that
important constraint: Congress Greenwich Collieries for the Secretary to the miner is totally disabled as of a
conferred on the Secretary the authority adopt a regulation shifting the burden of certain date, then any later medical
to vary the terms of the incorporated production in the manner of Doris opinion contradicting this evidence is
provisions by regulation. 30 U.S.C. Coal.’’ 147 F.3d at 517. In Gulf & necessarily not credible. Medical
932(a) (provisions of LHWCA apply to Western Indus. v. Ling, 176 F.3d 226 opinions pre-dating the evidence of
BLBA ‘‘except as otherwise provided (4th Cir. 1999), the Fourth Circuit entitlement, however, may establish the
* * * by regulations of the Secretary’’). upheld the validity of the Doris Coal miner was not disabled when he filed
See generally Director, OWCP v. presumption under the APA as his application. See Rochester &
National Mines Corp., 554 F.2d 1267, interpreted by Greenwich Collieries. The Pittsburgh Coal Co. v. Krecota, 868 F.2d
1273–74 (4th Cir. 1977); Patton v. Court agreed with Seals that the 600, 603 (3d Cir. 1989) (holding ALJ
Director, OWCP, 763 F.2d 553, 559–60 presumption shifts the burden of erroneously awarded benefits from
(3d Cir. 1985). In Greenwich Collieries, production, not persuasion, and filing date when evidence proved miner
the issue before the Court concerned the therefore was valid under the APA. 176 was not disabled at that time). The
Department’s authority to displace 5 F.3d at 233–34. Most recently, the burden of persuasion remains with the
U.S.C. 556(d) via a regulatory Eighth Circuit considered whether, for claimant to provide medical evidence
presumption (20 CFR 718.3) that purposes of a subsequent claim, a sufficient to overcome the opponent’s.
required a finding for the claimant if the ‘‘material change’’ in a miner’s Similarly, a claimant may also prove he
evidence for and against a particular condition could be presumed if the is entitled to benefits commencing
finding was evenly balanced. The Court miner established one element of before he filed his benefits application.
considered § 718.3(c) too ambiguous to entitlement not previously proven in In such a situation, the burden of
vary the APA’s burden of proof connection with a prior denied claim. persuasion remains, as always, with the
requirements as to the BLBA. It Lovilia Coal Co. v. Harvey, 109 F.3d 445 claimant. The comment does not
therefore held that the party who bears (8th Cir. 1997); see 20 CFR 725.309 provide any other rationale for its
the burden of persuasion under the APA (miner must show ‘‘material change in position that default onset dates violate
must prevail by a preponderance of the condition’’ between denial of one claim the APA. The Department therefore
evidence. In so holding, the Court also and filing of later claim). The Court declines to abandon its use of such
acknowledged the Department’s rejected the operator’s argument that the onset dates when the medical evidence
regulatory authority, consistent with the presumption of change violated 5 U.S.C. fails to establish the date on which the
APA, to utilize presumptions which 556(d) and Greenwich Collieries. In so miner became totally disabled due to
ease a party’s burden of production. 512 doing, the Court cited Greenwich pneumoconiosis.
U.S. at 280–81. The Court did not Collieries’ explicit approval of burden (c) The same comment contends that
address the Department’s argument that shifting presumptions which ease a using default dates based on filing dates
it has the authority to override 5 U.S.C. party’s obligation to produce evidence violates section 6 of the Longshore and
556(d) by regulation and shift the in support of its claim. 109 F.3d at 452– Harbor Workers’ Compensation Act
burden of persuasion as well. 53. (LHWCA), 33 U.S.C. 906, as
incorporated by the Black Lung Benefits
Since Greenwich Collieries, three Thus, the courts have upheld the Act (BLBA), 30 U.S.C. 932(a). The
courts have addressed the Department’s Department’s authority to shift the comment suggests using as an
authority to create presumptions which burden of production to the party alternative default date the date of the
alter the parties’ evidentiary burdens. opposing entitlement upon a showing of earliest medical evidence the
Although no court has considered the the predicate facts which support the adjudicator accepts as sufficient to
Department’s statutory authority to shift presumption without violating the APA. prove the miner is totally disabled by
a burden of persuasion, all three courts Section 725.503 does create a pneumoconiosis. The Department
have approved either directly or in dicta presumption of entitlement to benefits rejects this position. Section 6(a) of the
the Department’s authority to create as of the filing date of the claim absent LHWCA provides in relevant part that
presumptions which shift the burden of contrary evidence. The presumption ‘‘[n]o compensation shall be allowed for
production. In Glen Coal Co. v. Seals, rests on a twofold basis: (i) The miner the first three days of the disability
147 F.3d 502 (6th Cir. 1998), the Sixth has established he is entitled to benefits; * * * Provided, however, That in case
Circuit considered whether a judicially- and (ii) the Department’s belief that an the injury results in disability of more
created presumption of medical benefits individual will file a claim when he than fourteen days, the compensation
coverage for the treatment of pulmonary believes himself entitled to benefits. See shall be allowed from the date of the
disorders was consistent with circuit 43 FR 36828–36829 (Aug. 18, 1978). The disability.’’ 33 U.S.C. 906(a). As
caselaw. See Doris Coal Co. v. Director, presumption, however, shifts only the discussed above, Congress expressly
OWCP, 938 F.2d 492 (4th Cir. 1991) burden of production to the party granted the Secretary the power to tailor
(holding miner previously found totally opposing benefits. That party may incorporated Longshore Act provisions
disabled due to pneumoconiosis who overcome the presumed entitlement to fit the black lung program: the
receives treatment for pulmonary date by introducing credible medical LHWCA sections apply to the BLBA
disorder is presumed to receive evidence that the miner was not ‘‘except as otherwise provided * * * by
treatment for pneumoconiosis for disabled for some period of time after he regulations of the Secretary.’’ 30 U.S.C.
purposes of medical benefits coverage). filed his claim. See Ling, 176 F.3d at 233 932(a); Director, OWCP v. National
The majority held that the decisions (holding, in context of another black Mines Corp., 554 F.2d 1267, 1273–1274
below erroneously relied on the Doris lung presumption which shifts burden (4th Cir. 1977).
Coal opinion when Sixth Circuit law of production, party must introduce In 1978, the Secretary promulgated 20
applied and was inconsistent with ‘‘credible’’ evidence supporting its CFR 725.503 to implement section 6(a).
Fourth Circuit precedent. 147 F.3d at position). ‘‘Credible’’ evidence means 43 FR 36806 (Aug. 18, 1978). Like the
514 (Dowd, D.C.J.), 515 (Boggs, J.). Judge medical opinions which are consistent revised § 725.503, the 1978 regulation
prescribed two alternative means for in a particular case pinpoints the time when (s)he was not eligible. See
determining the entitlement date. The disability date, that date must be used. Rochester & Pittsburgh Coal Co. v.
adjudicator had to first consider In many cases, the evidence is Krecota, 868 F.2d 600, 603 (3d Cir.
whether the evidence established the inconclusive or contradictory over time. 1989) (holding that ALJ erroneously
month during which the miner became Even if the earliest positive evidence relied on filing date when medical
totally disabled due to pneumoconiosis. establishes the miner’s entitlement, that evidence clearly indicated miner was
If the evidence was insufficient to evidence only proves the miner was not disabled until several years later).
identify the specific month, the disabled on that date. Such evidence is Absent such evidence, however, the
adjudicator resorted to the default date: entirely consistent with a compensable rationale underlying section 725.503
the month in which the miner filed his disability antedating the medical testing ensures the miner will receive the
or her claim. Section 725.503(d)(2) for some unknown period of time. See approximately correct amount of
adopts the same general approach for Green, 790 F.2d at 1119 n. 4. compensation. Accordingly, the
modification petitions, and substitutes Consequently, the Department has Department rejects the comment’s
the month the claimant filed the consistently found a default entitlement position that a default onset date based
modification petition as the default date date necessary, as a rule of on a filing date—of either a claim or a
if the award is premised on a change in administrative convenience, in order to modification petition—violates section
the miner’s condition. 64 FR 55050 (Oct. implement the black lung program in an 6(a).
8, 1999). In the comments effective manner. See generally 30 The same comment also states that the
accompanying the promulgation of 20 U.S.C. 936(a) (authorizing Secretary to use of default onset dates originated
CFR 727.302, the Secretary explained ‘‘issue such regulations as [she] deems under part B of the BLBA and derives
the reasoning behind the adoption of a necessary to carry out the provisions of’’ from the Social Security Act. The
default entitlement date: title IV). The choice of the filing date commenter contends that section 6(a)
reflects the rational assumption that supersedes the Social Security Act rule
This approach was adopted in view of the for purposes of part C of the BLBA. As
great difficulty encountered in establishing a claimants, by and large, file claims or
date certain on which pneumoconiosis, often modification petitions when they discussed above, default onset dates are
a latent, progressive, and insidious disease, believe themselves entitled to benefits entirely consistent with section 6(a).
progressed to total disability. The filing date (although compensable disability may Furthermore, the comment does not
was thought to be fair since proof of onset, in fact have occurred either prior to, or explain why their origin has any legal
which was usually obtained after filing, after, the application date). The relevance. The comment does not state
would likely fix the date of total disability at Department recognizes claimants may a basis for eliminating default onset
the time at which the medical tests were dates for part C claims.
administered. The filing date, on the other
file modification petitions for other
(d) One comment opposes using the
hand, was likely to be a more accurate reasons as well, e.g., the claimant may
date the claimant petitioned for
measure of onset since it would be the date, secure the services of an attorney, obtain
modification as the default onset date if
or close to the date, on which the claimant new medical evidence, or intend to
benefits are awarded based on a change
felt the need to file for benefits, presumably prevent the underlying claim from
because disability had become total. in the miner’s condition. The
becoming finally denied. These reasons
commenter contends the proper default
43 FR 36828–36829 (August 18, 1978). do not detract from the underlying logic
date should be immediately after the
The Secretary also emphasized that ‘‘a of the default onset date; rather, they
date of the adverse decision which was
reasonable effort will always be made to simply explain why a claimant takes a
overturned on modification. For the
establish the month of onset.’’ 43 FR particular action at a particular time.
reasons set out in comment (c), the
36806 (August 18, 1978). The natural impetus to pursue benefits
Department rejects this suggestion. The
Section 725.503 therefore deals with at all is the individual’s belief that (s)he
filing date is the most rational point to
the difficulties inherent in identifying is entitled to them. Like the default
begin benefits if the date on which the
the particular month a miner’s lung onset date for claims, the same
miner’s pulmonary condition changed
condition deteriorated to the point he explanation supports a similar approach
sufficiently to make him or her entitled
became totally disabled due to for awards obtained on modification if
to benefits is not established by the
pneumoconiosis. As noted above, the the miner’s condition has changed to
evidence of record. If, however, the
Department has long since concluded the point of compensable disability and
record contains credible evidence of the
that pneumoconiosis is a latent and the actual onset date cannot be
miner’s entitlement predating the
progressive disease which may manifest ascertained.
modification petition, the onset date
itself pathologically over a lengthy The Department believes the filing should be the date of that evidence
period of time. See generally § 718.201, date strikes a reasonable balance provided no later credible evidence
responses to comments. As a result, between overcompensating and refuting entitlement exists, and the
detecting the precise month when the undercompensating the miner. Section evidence was developed after the date
deterioration reached the level of 6(a) requires the liable party to pay on which the most recent denial by a
compensable disability is problematic at benefits ‘‘from the date of the district director or administrative law
best. In addition, clinical evidence of disability.’’ 33 U.S.C. 906(a), as judge became effective.
disability on a particular date does not incorporated. If the medical evidence (e) No other comments were received
mean the miner became disabled that does not identify that date, the miner concerning this section, and no changes
day. The test may simply detect a might receive either more, or less, have been made in it.
condition which developed sometime compensation than the amount to which
earlier. Green v. Director, OWCP, 790 (s)he is entitled by using the filing date. 20 CFR 725.515
F.2d 1118, 1119 n.4 (4th Cir. 1986). Obviously, if the medical evidence (a) The Department did not open
Notwithstanding these difficulties, proves that the miner became disabled § 725.515 for comment when it issued
however, an award of benefits must set only after he filed, then the filing date the initial notice of proposed
a date from which those benefits are is inapplicable; the adjudicator must rulemaking, 62 FR 3341 (Jan. 22, 1997).
payable. 20 CFR 725.503(f); 64 FR 55050 select some later date to avoid The Department proposed amending
(Oct. 8, 1999). If the medical evidence compensating the miner for a period of § 725.515 in its second notice of
proposed rulemaking to conform it to point of compensable disability in lieu not enough time to calculate correct
changes in federal law which make of the present payment of a lesser benefit amounts under the Black Lung
black lung benefits payable by the Black amount. The Department therefore Benefits Act (BLBA). The Department
Lung Disability Trust Fund subject to considers settlements ill-suited to the disagrees. This regulation does not
garnishment for child support and BLBA program. Finally, although it change existing law in any material
alimony. 64 FR 54971, 55001 (Oct. 8, incorporated sections 16 and 15 of the manner. The BLBA incorporates § 14 of
1999). LHWCA into the BLBA, Congress did the Longshore and Harbor Workers’
(b) Although one comment has not incorporate section 8 (allowing for Compensation Act, 33 U.S.C. 914,
suggested the Department allow district director approval of certain which governs the payment of
claimants and responsible operators to settlements under the LHWCA). The compensation under that Act. 30 U.S.C.
negotiate settlements rather than fully Department does not believe Congress 932(a). Section 14(f) provides that
litigate every claim, the Department meant to allow settlements to occur additional compensation, in the amount
opposes this suggestion. The under the BLBA in the absence of an of twenty percent of unpaid benefits,
Department’s principal response to the express and direct incorporation of such shall be paid if an employer fails to pay
issue of settlements appears in the Final intent. within ten days after the benefits
Regulatory Flexibility Analysis, below. (c) No comments were received become due. The twenty-percent
The Department takes the same position concerning this section, and no further additional compensation provision has
with respect to any assignment, release changes have been made in it. been an incorporated provision of Part
or commutation of benefits except to the 20 CFR 725.522 C since the inception of the statute.
extent authorized by the Black Lung In its initial notice of proposed Consequently, § 725.530 merely restates
Benefits Act (BLBA) or the Secretary’s rulemaking, the Department proposed a existing law: failure to pay the full
regulation. Such agreements are void. shortened § 725.522, in which amount of benefits owed the claimant
Norfolk Shipbuilding & Drydock Corp. subsections (a) and (b) of 20 CFR within ten days after the benefits are
v. Nance, 858 F.2d 182, 186 (4th Cir. 725.522 were combined in proposed due shall result in the payment of an
1988), cert. den. 492 U.S. 911 (1989). § 725.522(a). Discussion of when benefit additional twenty percent of the unpaid
The BLBA prescribes precisely the payments are due was moved to a newly benefits. See also § 725.607(a) (twenty-
amount of monthly benefits to which a expanded § 725.502. These proposed percent additional compensation
claimant is entitled. 30 U.S.C. 922(a). changes were part of a general rewriting assessed on unpaid benefits); Sproull v.
This statutory compensation schedule of the regulations governing the Director, OWCP, 86 F.3d 895, 900–01
represents Congress’ judgment as to the payment of benefits, Part 725, Subpart (9th Cir. 1996), cert. den. sub nom.
reasonable level of monthly benefits a H. 62 FR 3365–67 (Jan. 22, 1997). Stevedoring Services of America, Inc. v.
totally disabled miner or his or her Although no comments were received Director, OWCP, 117 S.Ct. 1333 (1997)
survivor should receive. By concerning this section, the Department (holding twenty percent additional
incorporating section 16 regarding reiterates that the cost of a miner’s compensation applies to late payment of
releases (and 15 regarding waiver, see complete pulmonary examination at interest notwithstanding employer
Brown v. Forest Oil Corp., 29 F.3d 966, Trust Fund expense—defined as a timely paid underlying benefits) This
968 (5th Cir. 1994)) of the Longshore ‘‘benefit’’ under § 725.101(a)(6)—is not a assessment is self-executing, and
and Harbor Workers’ Compensation Act payment included within attaches automatically upon the failure
(LHWCA), 33 U.S.C. 916, 915, into the ‘‘overpayments’’ for purposes of to make timely payment regardless of
BLBA, 30 U.S.C. 932(a), Congress subsection (b). See 62 FR 3351 (Jan. 22, any equitable considerations explaining
demonstrated its intent to ensure that 1997); 64 FR 54982 (Oct. 8, 1999). No the untimeliness. Severin v. Exxon
claimants receive the full amount of changes have been made in this section. Corp., 910 F.2d 286, 288 (5th Cir. 1990).
benefits to which they become entitled, The Department also notes that monthly
thereby having less need to resort to 20 CFR 725.530 benefit amounts are fixed by law and
other means of support, including (a) In its initial notice of proposed adjusted only once a year. Most black
public assistance. See generally 1 rulemaking, the Department proposed a lung benefits are paid by insurance
Larson’s Workers’ Compensation Law new § 725.530(a), setting out an companies or self-insured coal
(MB) § 1.03[2] (1999). Moreover, making operator’s or carrier’s obligation to pay companies who have ready access to
agreements to reduce, divert or bargain benefits immediately when they become current monthly benefits rates and the
away benefits absolutely void also due pursuant to an effective order, and expertise to make any necessary
provides some level of protection to the consequences of an operator’s computations. Finally, the Department
claimants’ rights; no party who failure to pay such benefits. 62 FR notes that the actual amount of time
negotiates such an agreement can rely 3415–16 (Jan. 22, 1997). This proposed available to the party liable for benefits
on its terms in the event the claimant change was part of a general rewriting to make a timely payment has been
elects to pursue his or her full rights of the regulations governing the enlarged by virtue of changes made in
under a claim. Such protections are payment of benefits, Part 725, Subpart § 725.502(b). That regulation requires
especially appropriate given the H. 62 FR 3365–67 (Jan. 22, 1997). the liable party to pay the benefits due,
claimant population most affected by (b) Two comments object generally to pursuant to an effective order, for any
the BLBA, i.e., elderly, disabled and less the imposition of a ‘‘penalty’’ for an given month by the fifteenth day of the
educated retired workers and their operator’s failure to pay benefits when following month. 64 FR 55050 (Oct. 8,
survivors. Prohibiting settlements also due, citing comments addressed to 1999). Liability for additional
recognizes the progressive nature of § 725.502. For the reasons expressed in compensation in the amount of twenty-
pneumoconiosis. Because this disease the response to those comments, no percent for defaulting on a payment
may evolve over a period of years, the changes are made to either regulation. cannot be invoked until an additional
availability of settlements may (c)(i) Several comments object to the ten calendar days have passed after the
encourage a miner-claimant to forego a imposition of a ‘‘penalty’’ for failure to monthly benefit becomes due. See
future claim for full benefits after the pay a benefit within ten days after the Pleasant-El v. Oil Recovery Co., Inc., 148
pneumoconiosis has progressed to the payment is due, arguing that ten days is F.3d 1300, 1303 (11th Cir. 1998); Burgo
v. General Dynamics Corp., 122 F.3d (c) One comment contends the § 725.212(b), which requires full
140, 143 (2nd Cir. 1997) cert. den. 118 proposed changes depart from current benefits to be paid to each surviving
S.Ct. 1839 (1998); Reid v. Universal departmental practice and penalize spouse of a deceased miner if more than
Maritime Serv. Corp., 41 F.3d 200, 202 operators for appealing awards of one eligible survivor exists. 62 FR 3366,
(4th Cir. 1994); Irwin v. Navy Resale benefits. The Department disagrees. 3417 (Jan. 22, 1997).
Exchange, 29 Ben. Rev. Bd. Serv. 77 Section 14(f), as noted above, is an (b) Two comments state that the
(1995); contra Quave v. Progress Marine, incorporated statutory provision which Department cannot retroactively apply
912 F.2d 798, 800 (5th Cir. 1990) has been a part of part C of the BLBA the regulation permitting more than one
(holding ten days means ten business from the beginning. Its incorporation surviving spouse of a deceased miner to
days). With respect to the initial represents a policy determination by receive monthly benefits as a
payment after entry of an award, the Congress to promote the prompt beneficiary without regard to the
responsible operator should always compliance of a responsible operator existence of any other entitled spouse
have at least 25 days (as shown by the with the terms of an effective award. (see § 725.212(b)). The comments
following example) in which to make The proposed changes to the regulations contain no citation to specific precedent
the computation and make the first do not vary the operation of section and no further explanation. They do not
payment of monthly benefits. If an 14(f). Rather, they simply implement afford the Department a sufficient basis
award becomes effective on the last day Congress’ intent in placing section 14(f) for any change to the regulation. The
of January, the operator has until into the BLBA. Whether current Department has also addressed
February 15th in which to pay the administrative practice does not apply comments concerning the retroactive
section 14(f) to the maximum extent effect of the regulations in connection
benefits attributable to January; the
cannot change the plain meaning of the with § 725.2, and see 64 FR 54981–82
operator also has an additional ten days
provision. Finally, imposition of (Oct. 8, 1999).
to avoid liability for additional (c) One comment contends the change
compensation. This amount of time additional compensation for failing to
pay benefits in a timely manner is not permitting full benefits to multiple
should be sufficient to allow the survivors is grounded on a false
calculation of the benefit amount due a penalty for pursuing an appeal of an
award. Section 14(f) is a tool for premise. The commenter states that the
and pay the claimant, and therefore to Social Security Administration (SSA)
ensuring compliance with an operator’s
comply fully with the regulatory did not grant full benefits to multiple
benefits obligations once an effective
deadlines. This minimum period of 25 surviving spouses under part B of the
award is in place and regardless of what
days comes close to the 30 day-period Black Lung Benefits Act (BLBA), and
subsequent litigation strategy the
suggested by one comment as ‘‘more ‘‘required’’ the Department to use the
operator chooses to pursue.
reasonable.’’ In fact, in cases in which (d) No other comments were received same rules. The comment does not
the order awarding benefits becomes concerning this section, and no changes provide any basis for either proposition.
effective at the beginning of the month, have been made in it. The Department rejects the comment for
the operator will have far more than the several reasons. First, the commenter
suggested 30 days in which to issue the 20 CFR 725.533 cites no statutory authority, SSA
check. As for payments subsequent to The Department did not open regulation, or other evidence for its
the initial payment, the operator has § 725.533 for comment when it issued description of SSA practice, and thus no
ample time to calculate and issue the the initial notice of proposed conclusions can be drawn about that
monthly benefits check before incurring rulemaking, 62 FR 3341 (Jan. 22, 1997). agency’s official practice concerning the
the assessment of additional When the Department issued its second issue. Second, SSA administered Part B
compensation for untimeliness. notice of proposed rulemaking, it of the BLBA, but the Department has
Continuing with the previous example: proposed minor changes in the had sole authority over Part C since
If the operator has made the initial regulation and invited comments from January 1, 1974. Whatever SSA’s
payment on February 15th, the next the public. 64 FR 54971, 55001–02 (Oct. internal views or practice, it cannot
installment is not due until March 15th; 8, 1999). Specifically, the Department bind the Department if the Department
the operator then has an additional ten proposed deleting provisions concludes the statute requires a
days until the § 14(f) assessment concerning section 415 ‘‘transition’’ different result. Third, the Department
attaches in which to make the payment. claims, 30 U.S.C. 925, in both the believes the law compels what the
(ii) The more complex computations current 20 CFR 725.403 and 725.533. revised regulation provides. In the
involve retroactive benefits. Under Although the Department does not initial notice of proposed rulemaking,
§ 725.502(b)(2), an operator need not intend to alter the rules applicable to the Department provided a detailed
pay retroactive benefits until the district any section 415 claim that may remain legal analysis of the pertinent statutory
director computes this amount, within in litigation, parties have adequate authorities and legislative history, all of
30 days after issuance of an effective access to these rules in earlier editions which support awarding full monthly
award, and informs the responsible of the Code of Federal Regulations. In benefits to more than one surviving
operator of it. Benefits and interest for the final rule, the Department has added spouse. See 62 FR 3350–51 (Jan. 22,
periods prior to the effective date of the a comma after the word 1997). Congress amended the Social
order are not due until the thirtieth day ‘‘circumstances’’ in the first sentence of Security Act in 1965 to allow benefits to
following issuance of the district subsection (a) for grammatical purposes. a divorced surviving spouse as a
director’s computation. This time is No comments were received concerning ‘‘widow’’ of the miner. Pub. L. No. 89–
sufficient to verify the district director’s this section, and no other changes have 97, section 308(b)(1), 79 Stat. 286
computation, and actually allows the been made in it. (1965). The legislative history of the
employer considerably more time than amendment clearly established
the ten days provided by 20 CFR 20 CFR 725.537 Congress’ intent that payment of
725.607(a) in which to pay retroactive (a) The Department proposed benefits to two (or more) ‘‘widows’’
benefits before liability for twenty- changing § 725.537 in the initial notice would not reduce the benefits paid to
percent additional compensation may of proposed rulemaking to harmonize either. S. Rep. No. 404, 89th Cong., 1st
be imposed. the regulation with proposed Sess. (1965), reprinted in 1965 U.S.C.C.
& A.N. 1943, 2047. In 1972, Congress (c) No other comments were received restrictive Longshore and Harbor
amended the BLBA definition of concerning this section, and no changes Workers’ Compensation Act (LHWCA),
‘‘widow’’ to use the Social Security Act have been made in it. 33 U.S.C. 914(j), 922, as incorporated by
definition. 30 U.S.C. 902(e). The 30 U.S.C. § 932(a). Finally, the
20 CFR 725.544
legislative history is equally clear that Department addressed comments urging
Congress intended to conform the BLBA (a) The Department did not open changes in the legal test for waiver by
definition to the Social Security Act § 725.544 for comment when it issued noting that the test is derived from an
definition. S. Rep. No. 743, 92nd Cong., the initial notice of proposed incorporated provision of the Social
2d. Sess., reprinted in 1972 U.S.C.C. & rulemaking, 62 FR 3341 (Jan. 22, 1997). Security Act (SSA). The Department
A.N. 2305, 2332. The BLBA also The Department did receive one did, however, propose changes to
reinforces this interpretation because it comment which noted that the § 725.543, adopting more current
requires a ‘‘widow’’ to receive benefits maximum amount subject to criteria for waiver. See 64 FR 55055
at prescribed rates and makes no compromise had been raised to (Oct. 8, 1999).
allowance for a reduction based on the $100,000. 64 FR 55002 (Oct. 8, 1999).
(b) Two comments oppose the
existence of more than one widow. 30 The Department proposed changing
Department’s use of the SSA waiver
U.S.C. 922(a)(2). To date, two courts of § 725.544 to reflect that fact, and to
provisions rather than the LHWCA
appeals and the Benefits Review Board replace the reference to the Federal
approach to the problem. The Black
have accepted the Department’s Claims Collection Act of 1966, now
Lung Benefits Act (BLBA) incorporates
position. Peabody Coal Co. v. Director, repealed, with a citation to 31 U.S.C.
3711. 64 FR 55055–56 (Oct. 8, 1999). the overpayment provisions of both
OWCP [Ricker], 182 F.3d 637, 642 (8th statutes. 42 U.S.C. 404(b), as
Cir. 1999); Mays et al. v. Piney (b) One comment opposes in general
terms the extension of the overpayment incorporated by 30 U.S.C. 923(b), 940
Mountain Coal Co., 21 Black Lung Rep. (SSA); 33 U.S.C. 914(j), 922, as
waiver and recovery procedures to
1–59, 1–65/1–66 (1997), aff’d 176 F.3d incorporated by 30 U.S.C. 932(a)
claims involving responsible operators,
753, 764–765 (4th Cir. 1999). No court (LHWCA). The SSA requires the agency
and incorporates by reference its
has reached a contrary result, and no to obtain reimbursement of overpaid
response to § 725.547. The comment
comment has addressed the substance of benefits unless the claimant can prove
does not specifically address the
this analysis. Consequently, the recovery would either deprive him of
substance of proposed § 725.544. In any
Department has no basis for changing the financial resources to pay for
event, this provision only applies to the
the regulation. necessary expenses, or violate equity
compromise of debts owed the United
(d) No other comments were received States government. See 31 U.S.C. and good conscience regardless of his
concerning this section, and no changes 3711(a). financial condition. The LHWCA,
have been made in it. (c) No other comments were received however, limits recovery to the
20 CFR 725.543 concerning this section, and no changes adjustment of future benefits; if no
have been made in it. benefits will be paid, no overpayment
(a) The Department did not open can be recovered. In the initial notice of
§ 725.543 for comment when it issued 20 CFR 725.547 proposed rulemaking, the Department
the initial notice of proposed (a) In the initial notice of proposed reviewed the reasons for using the SSA
rulemaking, 62 FR 3341 (Jan. 22, 1997). rulemaking, the Department proposed provisions: judicial precedent
The Department received a number of amending § 724.547 to extend the upholding the Department’s authority to
comments, however, offering general waiver and adjustment provisions to recover overpayments under the SSA
criticisms of the overpayment waiver overpayments owed by claimants to scheme; adverse financial consequences
and adjustment criteria; the program responsible operators. 62 FR 3366, 3419 for the Fund if the Department used the
had been using criteria developed by the (Jan. 22, 1997). Formerly, these more restrictive Longshore provisions;
Social Security Administration (SSA) protections had applied only to and the protections afforded claimants
for waiver of overpayments incurred claimants who had been overpaid by the by the waiver procedure, which limits
under Part B of the Black Lung Benefits Trust Fund. 20 CFR § 725.547(a). The recovery to those individuals who can
Act (BLBA). In response, the Department concluded that the afford to reimburse the overpaid
Department proposed revising § 725.543 opportunity to obtain a waiver or benefits. 62 FR 3366–67 (Jan. 22, 1997).
to adopt the waiver standards in 20 CFR adjustment of the debt should be made In the second notice of proposed
part 404, which are used by the SSA in available to all claimants regardless of rulemaking, the Department
administering title II of the Social their benefits’ source. The Department acknowledged the comments advocating
Security Act. 64 FR 55055 (Oct. 8, received numerous comments opposing use of the LHWCA model but relied on
1999). The Department explained that the proposed change for a variety of the policy considerations previously
the part 404 criteria better reflect the reasons. 64 FR 55002–03 (Oct. 8, 1999). advanced. 64 FR 55002 (Oct. 8, 1999).
current law than the part 410 criteria Comments urging the Department to The Department continues to believe
because the part 410 have not been limit recoveries to the adjustment of that these considerations provide valid
revised since 1972. 64 FR 55002 (Oct. 8, future benefits, and objections based on reasons for using the SSA provisions as
1999). increased difficulties for operators in the basis for the Department’s
(b) One comment generally opposes recovering overpayments, were rejected overpayment recovery procedures.
the extension of the overpayment based on the policy considerations set Moreover, adopting the more current
waiver and recovery procedures to forth in the initial notice of proposed overpayment criteria in 20 CFR part 404
claims involving responsible operators, rulemaking. 62 FR 3366–67 (Jan. 22, will conform the Department’s practice
and incorporates by reference its 1997). The Department also rejected the to changes in the law since 1972. See 64
response to § 725.547. The comment position that waiver of an overpayment FR 55055 (Oct. 8, 1999). The
does not specifically address the owed an operator amounted to the Department therefore disagrees with the
substance of proposed § 725.543. The unconstitutional deprivation of commenters who urge that the SSA
Department responds to comments property, citing caselaw upholding overpayment procedures be abandoned
concerning § 725.547 at that provision. overpayment recoveries under the more in favor of the LHWCA model.
(c) One comment states that the cannot claim reliance on ‘‘erroneous employers of property rights. The
Department’s response to comments in information’’ from the agency as a basis comment stresses that LHWCA
the second notice of proposed for waiver if the ‘‘information’’ is a claimants generally suffer job-related
rulemaking, 64 FR 55002–03 (Oct. 8, district director’s award which is later traumatic injuries which are promptly
1999), failed to answer several concerns overturned. The Court correctly noted known by the employer, and the claims
raised in the initial round of comments. that characterizing such awards as litigation is resolved quickly. By
Specifically, the original comment erroneous agency information would contrast, the commenter notes that
contended that: the LHWCA provisions result in waiver for virtually any BLBA claimants generally file after
supersede the SSA provisions with overturned award, and render retirement and the entitlement litigation
respect to part C claims, citing Bracher meaningless a regulatory provision is lengthy because the issues are
v. Director, OWCP, 14 F.3d 1157 (7th which makes interim awards contentious; the protracted litigation
Cir. 1994); the Department must ‘‘overpayments.’’ 14 F.3d at 1162. See therefore causes delays and
evaluate the cost of recovering also McConnell v. Director, OWCP, 993 correspondingly larger overpayments
overpayments against the amounts F.2d 1454, 1458 (10th Cir. 1993); Weis since operators must pay benefits during
actually recovered; caselaw on waiver v. Director, OWCP, 16 Black Lung Rep. the litigation. Based on these contrasts,
issues contradicts the Department’s 1–56, 1–58 (1990). The comment does the comment argues that the limitations
view that the standards will protect not explain in what manner Bracher imposed on the operator’s right to
claimants from burdensome recoveries; proves the Department has exaggerated recover overpayments by § 725.547
and courts apply inconsistent the extent to which the waiver and should be abandoned because the
interpretations of the waiver standards. recovery regulations protect claimants’ operator has no effective means of
None of the commenter’s arguments interests. (iv) Finally, the commenter defending its interests. In effect, the
warrant changing the basic overpayment contends that the circuits have reached commenter argues that the inherent
recovery procedures. (i) The Seventh inconsistent results in determining delays in BLBA claims adjudication
Circuit Court of Appeals’ decision in whether to waive recovery of raise due process concerns because the
Bracher does not support the overpayments, citing Benedict, 29 F.3d delays generate large overpayments
1140, and McConnell, 993 F.2d 1454. which will be uncollectible under
commenter’s position. The Court
Specifically, the comment expresses § 725.547.
actually declined to address the
concern that one court granted a waiver The comment rests on the premise
relationship between the SSA and that inherent delays exist in the
LHWCA overpayment provisions for the claimant because he spent the
benefits on a vacation while another adjudication of black lung claims, and
because the petitioner failed to make the that the delays amount to per se denial
argument in earlier proceedings. 14 F.3d court denied waiver to a claimant who
saved the benefits. The results reached of due process. Delay alone, however, is
at 1161. The Court also noted, in not a due process violation. C & K Coal
passing, that the Department has the in these cases are not inconsistent. In
McConnell, the Court granted the waiver Co. v. Taylor, 165 F.3d 254, 259 (3d Cir.
explicit statutory authority in 30 U.S.C. 1999). ‘‘It is not the mere fact of the
932(a) to modify incorporated LHWCA because the miner relied on the receipt
of the benefits to pay for the vacation; government’s delay that violates due
provisions by issuing regulations which process, but rather the prejudice from
vary the terms of those provisions. (ii) his detrimental reliance could be
directly linked to the benefits because such delay.’’ Consolidation Coal Co. v.
With respect to the costs involved in Borda, 171 F.3d 175, 183 (4th Cir. 1999).
undertaking overpayment proceedings, he would not have taken the vacation
In the context of black lung entitlement
this factor may be considered in without the additional money. The
litigation, delays have prompted courts
determining whether to pursue Court concluded that permitting the
to transfer liability from operators to the
individual cases. Cost alone is not a Department to recoup the amount of
Black Lung Disability Trust Fund
reason to ignore the duty to recover benefits spent on the vacation would
because agency errors have deprived the
overpayments imposed by the BLBA. violate ‘‘equity and conscience.’’ 993
operators of the ability to defend
(iii) The Department disagrees that the F.2d at 1461. With respect to the
themselves in a meaningful manner as
cases cited by the commenter balance of the overpayment, the Court
required by due process. Island Creek
demonstrate that the waiver and held that the miner had the financial
Coal Co. v. Holdman, 202 F.3d 873,
recovery procedures provide inadequate capacity to repay the benefits because 883–84 (6th Cir. 2000); Borda, 171 F.3d
protection of claimants’ interests. The he had a $114 monthly cushion after at 183–84; Lane Hollow Coal Co. v.
comment incorrectly states that the comparing his income and expenses. Director, OWCP [Lockhart], 137 F.3d
Seventh Circuit upheld a $47 difference 993 F.2d at 1160. Similarly, in Benedict, 799, 808 (4th Cir. 1998). In each of those
between a claimant’s monthly income the Court considered a $110 monthly cases, unwarranted delays by the agency
and expenses as a sufficient cushion to cushion sufficient. The Court rejected precluded the operators from asserting
allow repayment of an overpayment. the argument that recovery would defenses to liability; in effect, the
Benedict v. Director, OWCP, 29 F.3d violate ‘‘equity and good conscience’’ claimant won by default. Accordingly,
1140 (7th Cir. 1994). The Court actually because the miner did not relinquish delay at some point in the opportunity
found that the claimant’s monthly any right or, unlike McConnell, for adjudication of a case may constitute
income exceeded his expenses by at undertake an expense because of the a denial of due process, but a mere
least $110 (not including interest availability of the benefits. The allegation of delay without any
income), and that the available financial Department therefore rejects the explanation why the delay is
assets would enable the claimant to comment’s interpretation of these unreasonable does not substantiate a
repay the overpayment without adverse decisions. due process violation. Abbott v.
effect on his living standard. The (d) One comment focuses on the Louisiana Ins. Guaranty Assoc., 889
comment also cites Bracher, 14 F.3d differences between the LHWCA and F.2d 626, 632–33 (5th Cir. 1989), citing
1157, as another example of the lack of BLBA programs as a basis for Cleveland Bd. of Education v.
protection afforded claimants by the distinguishing caselaw under the Loudermill, 470 U.S. 532, 547 (1985).
waiver procedures. In that decision, the LHWCA holding that limitations on The commenter implies that the
Seventh Circuit held an individual overpayment recovery do not deprive prejudice which establishes the denial
of due process is the unrecoverable Lung Disability Trust Fund. Department also observed that,
overpayments generated by the time- Accordingly, the Department proposed notwithstanding compliance by coal
consuming litigation over entitlement. § 725.548 in the second notice of mine construction employers, there was
The possibility exists that some claims proposed rulemaking as a regulation of no basis for excluding construction
will be approved and require years of general applicability, and moved companies from the requirements
litigation before final denial, thereby § 725.547(c) and (d) to the proposed imposed by the Black Lung Benefits Act.
generating large overpayments that may regulation. 64 FR 55003, 55056–57 (Oct. 64 FR 55003 (Oct. 8, 1999).
be waived in overpayment proceedings 8, 1999). (b) One comment continues to
under § 725.547. Such a possibility, (b) No comments were received disagree with the requirement that coal
however, does not establish a general concerning this section, and no changes mine construction employers secure the
violation of due process. First, the have been made in it. payment of awarded claims, arguing
Department is not solely responsible for that the Department’s experience with
the delays in black lung benefits Subpart I construction employers has been
litigation, and the caselaw is clear that 20 CFR 725.606 satisfactory. In its second notice of
only prejudicial delays caused by the (a) In its initial notice of proposed proposed rulemaking, the Department
government are the basis for due process rulemaking, the Department proposed discussed a similar comment at length.
concerns. Second, the prejudicial effect revising § 725.606 in order to require 64 FR 55003 (Oct. 8, 1999). The
of delay must be considered in the that uninsured operators, including coal Department did not dispute the
factual context of actual cases, and not observation that coal mine construction
mine construction and coal
simply in the abstract. Third, the employers generally complied with
transportation employers, secure the
existence of large overpayments is not their obligations to pay awarded claims.
payment of benefits in individual claims
necessarily evidence of due process The Department explained, however,
that have been awarded and for which
violations. If the underlying entitlement that the proposed revision to § 725.606
they have been determined liable. 62 FR
adjudication process works in a fair represented the Department’s attempt to
3367 (Jan. 22, 1997). The regulation
manner, then due process has been fulfill its responsibility to identify all
establishes a procedure under which
provided and the size of the resulting parties’ obligations under the Black
such an operator may be compelled to
overpayment is irrelevant. ‘‘The Due Lung Benefits Act. The Department also
post the necessary security in the
Process Clause does not create a right to noted that proposed § 725.606
absence of evidence demonstrating that represented an efficient means of
win litigation; it creates a right not to
the operator has taken other action to enforcing the obligations of all parties.
lose without a fair opportunity to
secure the benefit payments. In The commenter now states that the
defend oneself.’’ Lane Hollow Coal Co.,
addition, the regulation distinguishes proposal would impose an onerous and
137 F.3d at 807 (emphasis in original).
between operators who were required punitive burden on coal mine
Finally, the fact that large overpayments
to, but did not, comply with the security construction employers. The
may eventually be waived does not
requirement in 30 U.S.C. 933, and coal Department disagrees. The regulation
necessarily amount to a due process
mine construction and coal does not require an uninsured employer
violation. Section 725.547 provides
operators with the opportunity to transportation employers, who are not to deposit funds with a Federal Reserve
recover overpayments through an required to comply with that Bank in every case. Instead, such a
adjudicatory scheme similar to the requirement. An uninsured employer deposit is required only if the employer
entitlement process, with rights to that failed to comply with 30 U.S.C. 933 cannot satisfy the adjudication officer
evidentiary development, hearing and is required to post security worth no that the award is otherwise secured. For
appeal. The comment does not explain less than $175,000, while an uninsured example, a large, well-established coal
why elimination of the waiver process employer that is either a coal mine mine construction employer may be
will enhance the operators’ ability to construction or transportation employer able to demonstrate that its current size
recover overpayments. The comment is entitled to an individualized and assets are sufficient to allow it to
does not state a sufficient basis for assessment of the amount of security pay benefits for the lifetime of the
abandoning the regulation. required based on actuarial projections. claimant. In such a case, the
(e) One comment supports § 725.547. That company also must secure the adjudication officer may permit the
(f) No other comments were received payment of all future benefits, however. employer to meet the security
concerning this section, and no changes The Department corrected a requirement in a manner other than
have been made in it. typographical error in subsection (c) in depositing funds with a Federal Reserve
its second notice of proposed Bank. An employer, for example, may
20 CFR 725.548 rulemaking, and responded to a purchase an indemnity bond, one of the
(a) Formerly, in any case involving an comment regarding coal mine methods specifically listed in
underpayment or an overpayment, construction employers. The commenter subsection (a), or may request that the
§ 725.547(c) and (d) empowered district argued that the proposal inappropriately adjudication officer approve another
directors to issue orders protecting the imposed personal liability on the mechanism that will guarantee the
parties’ interests and to resolve disputes corporate officers of a coal mine payment of benefits in case the
over the orders using the procedures construction employer that fails to employer ever becomes unable to meet
applicable to entitlement issues. 20 CFR comply with the post-award security its obligations.
725.547. Based on its title, requirement, and further stated that the In addition, the Department does not
‘‘Applicability of overpayment and proposal was unnecessary with respect accept the premise that it must allow
underpayment provisions to operator or to coal mine construction employers, coal mine construction employers to
carrier,’’ section 725.547 applied only to who comply with their obligations to avoid the security requirement simply
cases involving responsible operators. pay benefits. The Department responded because most of them are current in
The Department intends that these by demonstrating the legal basis for its their payment obligations. If even one
provisions should apply to overpayment imposition of personal liability on the such employer currently paying benefits
and underpayment cases involving both officers of corporate coal mine seeks bankruptcy protection, all of the
responsible operators and the Black construction employers. The awarded claims for which that employer
is responsible, each of which is worth provided, however, that coal be entitled to such benefits. Interest on
approximately $175,000, could become transportation and coal mine additional compensation starts to accrue
the responsibility of the Black Lung construction employers may be required on the date that the beneficiary becomes
Disability Trust Fund. The Department to post a bond or otherwise guarantee entitled to additional compensation,
has a duty to protect the assets of the the payment of benefits in any awarded while interest on medical benefits starts
Trust Fund, and thus intends to enforce claim for which they have been to accrue on the date that the miner
the post-award security provision determined liable. Ibid. The regulations received the medical service or 30 days
incorporated into the Black Lung promulgated by the Department to after the date on which the miner was
Benefits Act from section 14(i) of the implement the 1978 amendments also first determined to be generally eligible
Longshore and Harbor Workers’ specifically recognized the liability of for black lung benefits, whichever date
Compensation Act, 33 U.S.C. 914(i), as coal transportation employers. See 20 is later. 62 FR 3368 (Jan. 22, 1997)
incorporated by 30 U.S.C. 932(a). CFR 725.491(a)(1979); 43 FR 36801–02 In addition, the proposal specifically
(c) One comment states that coal (Aug. 18, 1978). required the payment of interest by
transportation employers are generally Thus, since 1978, both the statute and responsible operators on attorneys’ fee
unaware of their potential liability for the regulations have put coal mine awards. 62 FR 3368 (Jan. 22, 1997). In
black lung benefits, and are surprised transportation employers on notice that some cases, those awards may be issued
when they are identified as a they could be held liable for the long before the award of claimant’s
responsible operator in the adjudication payment of any benefits owed to their benefits becomes final, the first point at
of an individual claim for benefits. At former employees. See Norfolk & which the attorney is able to collect his
that point, the commenter maintains, Western Railway Co. v. Roberson, 918 fee under § 28 of the Longshore and
any insurance that they are able to F.2d 1144, 1149–50 (4th Cir. 1990), cert. Harbor Workers’ Compensation Act, 33
purchase will not cover benefits owed to denied, 500 U.S. 916. Accordingly, the U.S.C. 928, incorporated into the Black
the former employee who has already Department does not believe that such Lung Benefits Act by 30 U.S.C. 932(a).
filed a claim. The commenter requests an employer should be surprised when The Department did not discuss this
that the proposed regulations prohibit it receives notification of a claim filed regulation in its second notice of
the case-by-case adjudication of issues by one of its employees. Federal Crop proposed rulemaking. See list of
of coverage involving coal Ins. Corp. v. Merrill, 332 U.S. 380, 384– Changes in the Department’s Second
transportation employers. 85 (1947) (‘‘Just as everyone is charged Proposal, 64 FR 54971 (Oct. 8, 1999).
The Department does not believe that with knowledge of the United States (b) The Department has replaced the
it is necessary to revise the regulations Statutes at Large, Congress has provided term ‘‘beneficiary’’ with the phrase
to provide further guidance to coal that the appearance of rules and ‘‘beneficiary or medical provider’’ in
transportation employers. Neither does regulations in the Federal Register gives two places in the last sentence of
the Department deem it advisable to legal notice of their contents.’’) Finally, subsection (a)(4). This revision is
limit the authority of adjudication even though a transportation employer intended to conform that sentence with
officers to apply the pertinent statutory is not required to obtain insurance to the first sentence of subsection (a)(4),
and regulatory definitions to claims for secure its black lung liability, it remains which clearly reflects the Department’s
benefits filed by employees of free to purchase such insurance in order intention that medical providers as well
transportation employers. Congress to ensure that its assets are not depleted as beneficiaries are eligible for interest
amended the Federal Mine Safety and by the defense and payment of black to compensate them for any delays in
Health Act in 1977 to include ‘‘any lung claims. the payment of medical benefits.
independent contractor performing (d) No other comments were received (c) A number of comments oppose the
services or construction’’ at the Nation’s concerning this section. The Department allowance of interest on attorneys’ fees
coal mines.’’ 30 U.S.C. 802(d); Pub. L. has corrected one error in the proposed in general, and the computation of that
95–164, 91 Stat. 1290, § 102(b)(2) (1977). regulation, replacing the phrase ‘‘the interest from the date the fee is awarded
When it amended the Black Lung United States Treasurer’’ in subsection until it is paid. In its first notice of
Benefits Act several months later, (f) with the term ‘‘a Federal Reserve proposed rulemaking, 62 FR 3368 (Jan.
Congress specifically recognized, in two Bank.’’ The Department explained in its 22, 1997), the Department explained
separate provisions, that coal initial proposal that the funds will be that the payment of such interest is
transportation companies were now deposited with the appropriate Federal necessary to buttress the economic
liable for the payment of benefits. First, Reserve Bank rather than the United value of fees which may take years to
Congress amended the definition of the States Treasurer and had changed become due because of the duration of
term ‘‘miner’’ to include ‘‘an individual similar language in subsection (c). See the underlying litigation of claimant
who works or has worked in coal mine 62 FR 3367 (Jan. 22, 1997). entitlement. Although the Black Lung
construction or transportation in or Disability Trust Fund is not liable for
around a coal mine, to the extent such 20 CFR 725.608 the payment of interest in any event,
individual was exposed to coal dust as (a) The Department proposed revising Shaffer v. Director, OWCP, 21 Black
a result of such employment.’’ 30 U.S.C. § 725.608 in its initial notice of Lung Rep. (MB) 1–98, 1–99 (Ben. Rev.
902(d); Pub. L. 95–239, 92 Stat. 95, proposed rulemaking in order to Bd. 1998), a responsible operator is not
§ 2(b) (1978). In addition, Congress simplify the regulation, and to allow all obliged to pay attorney’s fees until the
added language to section 422(b) that parties to a claim to ascertain their claimant successfully establishes
exempted coal transportation obligations and rights with respect to entitlement to benefits in a final award.
employers, as well as coal mine the payment of interest. The proposal Because appeals may delay an award’s
construction employers, from the recognized that black lung beneficiaries finality for years, the attorney’s fees
requirement that they generally secure were entitled to the payment of interest awarded at earlier stages of the litigation
the payment of benefits by purchasing on retroactive benefits, additional will diminish in real value as a result of
insurance or seeking the Department’s compensation, and medical benefits. inflation. Interest from the date of a fee
approval to self-insure their obligations. Interest on retroactive benefits starts to award, however, will reduce the inroads
30 U.S.C. 932(b); Pub. L. 95–239, 92 accrue 30 days after the first date on made by inflation. An award of interest
Stat. 95, § 7(b) (1978). Congress which the claimant was determined to will therefore encourage attorneys to
represent claimants because the value of (1995), vac. on other grounds sub nom could request the adjudication officer to
their fees will be protected, Peabody Coal Co. v. Director, OWCP, use the attorney’s current rate (his rate
notwithstanding delays in actual 116 F.3d 207 (7th Cir. 1997) (overruling at the time he applies for the fee), rather
payment. The Department wishes to prior decisions prohibiting than his historical rate (the rate at the
encourage attorney representation of augmentation of attorney fee for delay, time he performed the work), to
claimants, believing it a means to citing Jenkins). Consequently, interest calculate the fee to which he is entitled.
enhance the fairness of the adjudication on an attorney’s fee may be awarded Thus, the attorney in the example
process. The Department therefore consistent with section 28 to above, who performed 20 hours of work
rejects the commenters’ objection to the compensate an attorney for delay in in 1995 but did not submit his fee
allowance of interest on attorneys’ fees receiving his fees. petition until benefits were awarded in
in principle. The Court of Appeals for the Fourth 1999, might use the $125 hourly rate he
With respect to the computation of Circuit recently addressed this issue in customarily charged in 1999 rather than
interest from the date of the attorney fee Kerns v. Consolidation Coal Co., 176 the $100 hourly rate he charged in 1995.
award, the Department notes that any F.3d 802 (4th Cir. 1999). A claimant’s Using the current rate would permit the
other date would not afford an attorney attorney was awarded fees by an attorney to claim an additional $500,
maximum protection of the fee’s value. administrative law judge in 1984, but and would compensate him for the
Although the operator is under no was not able to collect those fees until delay between the time he performed
obligation to pay the fee at the time it the award became final in 1990. He then the work and date of the fee award.
is awarded, the primary purpose of filed a motion for supplemental Another method of attaining the same
subsection (c) is to protect the value of attorneys’ fees based on the six-year result would be to calculate a ‘‘lodestar’’
the attorney’s fee from its inception. delay between the award and its amount by multiplying the number of
Moreover, an operator who is able to payment. The ALJ denied the motion, hours the attorney worked by his
postpone the payment of an attorney’s and the Benefits Review Board affirmed. historical rate, and then requesting the
fee by appealing the underlying award In reversing the Board, the court noted adjudication officer to augment that
of benefits is not entitled to profit from that a 1995 decision of the Board, figure by an additional amount intended
its decision to appeal unless it succeeds Nelson v. Stevedoring Services of to compensate the attorney for the
in overturning the award. The operator America, 29 BRBS 90 (1995), had delay. Thus, the attorney in the example
retains the money, and the use of the authorized the enhancement of an might request that the adjudication
money, while the appeal is pending. If attorney’s fee for delay under the officer multiply the lodestar amount by
the award of benefits is ultimately Longshore and Harbor Workers’ an additional 25 percent. In either case,
affirmed, the operator should not Compensation Act. The court concluded the fee awarded by the adjudicator, in
reasonably expect to be able to retain that ‘‘current law’’ thus required concert with the interest provided by
any of the profits it earned on that enhancement for delay, and remanded § 725.608, will ensure that when the
money during the appellate proceeding. the case to allow the ALJ to consider the attorney finally receives payment, he is
Instead, those profits, in the form of merits of the attorney’s supplemental fully compensated for the work he
interest designed to compensate an fee request. 176 F.3d at 805. Section performed.
attorney for delay, rightfully belong to 725.608 simply provides a mechanism (d) One comment supports the
the attorney who had to wait to receive for ensuring that claimants’ attorneys allowance of interest on attorney fees
payment of his fee. Consequently, the receive this enhancement in each case and on medical benefits. No other
date of the fee award is the logical date involving a responsible operator. comments were received concerning
from which to calculate the interest The interest on a fee award provided this section, and no changes have been
owed. by section 725.608, of course, provides made in it.
The same commenters also argue that compensation only for part of the delay
the Department has no statutory that an attorney may face in collecting 20 CFR 725.609
authority to require the payment of his fee, i.e., the time between the fee (a) The Department proposed revising
interest on attorneys’ fees. The award of award and the actual payment. It is not section 725.609 in its first notice of
fees is governed by section 28 of the intended to compensate the attorney for proposed rulemaking. In the revised
Longshore and Harbor Workers’ any delay between the performance of regulation, the Department clarified its
Compensation Act, 33 U.S.C. § 928, as his work and the award of fees by the intent and authority to enforce a final
incorporated by 30 U.S.C. § 932(a). appropriate adjudicator. If, for example, award of benefits against other parties in
Section 28 authorizes the payment of a a claimant filed his application in 1995, the event the named operator is no
‘‘reasonable’’ attorney’s fee by an and was not awarded benefits by an longer capable of assuming its liability
employer if, after the employer administrative law judge until 1999, for benefits. The revised regulation
controverts a claimant’s entitlement, the § 725.608 will require only that interest outlined the other parties against which
claimant obtains an award of benefits. be paid to the attorney from the date the such an award might be enforced,
No fee must be paid until the award is ALJ approves the fee petition until the including corporate officers and
final. The Supreme Court has held that date that the attorney collects that successor operators. The regulation also
‘‘[a]n adjustment for delay in payment is amount. It will not provide interest from outlined the circumstances under which
* * * an appropriate factor in the the date on which the attorney the Department may impose liability on
determination of what constitutes a performed the work. In such cases, it is these parties. In proposing this
reasonable attorney’s fee’’ under a fee- the responsibility of the attorney who regulation, the Department relied on
shifting statute. Missouri v. Jenkins, 491 submits a fee request to ensure that the Congress’ explicit determination that
U.S. 274, 284 (1989) (decided under request reflects any necessary such entities may be held liable for
Civil Rights Attorney’s Fees Award Act); enhancement for the delay between the these awards. 62 FR 3368–69 (Jan. 22,
see also Pennsylvania v. Delaware performance of the work and the award 1997). The Department did not discuss
Valley Citizens’ Council, 483 U.S. 711, of the fee. There are several methods by the regulation in its second notice of
716 (1987) (dicta, decided under Clean which an attorney may seek proposed rulemaking. See list of
Air Act); Goodloe v. Peabody Coal Co., enhancement of his fee award to cover Changes in the Department’s Second
19 Black Lung Rep. 1–91, 1–101–102 this delay. For example, the attorney Proposal, 64 FR 54971 (Oct. 8, 1999).
(b) One comment objects to 20 CFR 725.620 (s)he receives fixed monthly benefits for
subsection (b)’s imposition of personal (a) In its first notice of proposed that condition. The miner is also
liability on corporate officers of rulemaking, the Department proposed entitled to medical benefits, i.e.,
companies which provide services at amending the cross-reference in treatment, supplies and other medical
mine sites. The commenter suggests that subsection (a) from § 725.495 to subpart services for the disabling
liability is inappropriate because the D of part 726. This amendment reflected pneumoconiosis. In its initial notice of
officers have never had notice that their a move to part 726 of the regulations proposed rulemaking, the Department
employees could be considered miners, governing the obligations of coal mine proposed amending § 725.701 to
and have not previously had knowledge operators to secure the payment of establish a presumption of medical
of an obligation to obtain insurance to benefits. 62 FR 3369 (Jan. 22, 1997). The benefits coverage for the treatment of
cover their employees’ potential benefit Department did not discuss § 725.620 in any pulmonary disorder. 62 FR 3423
entitlement. The Department rejects this its second notice of proposed (Jan. 22, 1997). This presumption
suggestion. Congress amended the rulemaking. See Changes in the derived from a judicially-created
statutory definition of ‘‘operator’’ in Department’s Second Proposal, 64 FR presumption first announced by the
1977 to include ‘‘any independent 54971 (Oct. 8, 1999). Court of Appeals for the Fourth Circuit
(b) Two comments urge the in Doris Coal Co. v. Director, OWCP
contractor performing services or
Department to revise its regulations to [Stiltner,] 938 F.2d 492 (4th Cir. 1991).
construction at such mine[.]’’ 30 U.S.C.
allow parties to settle black lung The Department explained the means by
802(d). The current regulations also
benefits claims. These comments were which the presumption could be
recognize that an independent
listed as relevant to § 725.620(d) in the rebutted, and limited the type of
contractor may be held liable as a evidence relevant to rebuttal by
‘‘responsible operator’’ with respect to Department’s listing of comments by
issue. See, e.g., Exhibit 71 in the excluding any medical opinion
any employee who performs covered premised on the absence of disabling
services at a coal mine site. 20 CFR Rulemaking Record. They do not
directly affect § 725.620, however. pneumoconiosis. The Department based
725.491(c)(1). The Black Lung Benefits its exclusion of certain medical
Subsection (d) of the regulation
Act requires an operator to secure its evidence in rebuttal on the fact that the
implements section 15(b) of the
potential benefits liability by obtaining existence of the miner’s totally disabling
insurance or qualifying as a self-insurer. pneumoconiosis had already been
Compensation Act, 33 U.S.C. 915, as
30 U.S.C. 932(b), 933(a). Section incorporated by 30 U.S.C. 932(a), rather established in the underlying claim for
423(d)(1) of the Act authorizes the than section 16, 33 U.S.C. 916, as monthly benefits. 62 FR 3369, 3423 (Jan.
Department to impose personal liability incorporated by 30 U.S.C. 932(a), the 22, 1997). The Department received a
on certain officers of a corporation if the statutory provision governing number of comments critical of the
operator is a corporation that has failed settlements. The Department has presumption. Some comments alleged
to satisfy its insurance obligations. 30 responded to the comments concerning the presumption would effectively
U.S.C. 933(d)(1). The Department settlement of black lung claims in its compensate miners for disorders caused
therefore disagrees that application of Final Regulatory Flexibility Analysis. by smoking cigarettes and raise the
these provisions to employers engaged (c) No other comments were received operators’ health care costs. Other
as independent contractors providing concerning this section, and no changes comments contended the presumption
covered services at mine sites is unfair. have been made in it. did not have a sound medical basis. 64
Such corporate entities are coal mine FR 55003 (Oct. 8, 1999).
operators under the Act, and are liable 20 CFR 725.621
After considering the public’s
to their employees when covered In its first notice of proposed comments and intervening judicial
employment causes them to become rulemaking, the Department proposed decisions, the Department proposed
totally disabled by pneumoconiosis. increasing subsection (d)’s maximum additional changes to the regulation in
Any such entity is required to anticipate penalty amount from $500 to $550 for its second notice of proposed
its obligations and take adequate failing to file a required report after the rulemaking. 64 FR 55060 (Oct. 8, 1999).
measures to satisfy those obligations as date on which the regulations became The Department reviewed the decisions
a cost of doing business. Moreover, effective. This revision implements the in Glen Coal Co. v. Seals, 147 F.3d 502
since 1977, the officers of an Civil Penalties Inflation Adjustment Act (6th Cir. 1998), and Gulf & Western
independent contractor who meets the of 1990, as amended by the Debt Indus. v. Ling, 176 F.3d 226 (4th Cir.
Act’s definition of the term ‘‘operator’’ Collection Improvement Act of 1996. 62 1999). 64 FR 55003–04 (Oct. 8, 1999).
have been subject to the Act’s FR 3369 (Jan. 22, 1997). The Department The Department noted both decisions
imposition of liability on the officers of did not discuss § 725.621 in its second agreed that the Doris Coal presumption
a corporation that fails to meet its notice of proposed rulemaking. See shifted only the burden of production to
security obligations. The revised Changes in the Department’s Second the party opposing benefits, and was
regulation does not alter the obligation Proposal, 64 FR 54971 (Oct. 8, 1999). No therefore valid under the Administrative
of these officers to obtain the comments were received concerning Procedure Act (APA), 5 U.S.C. § 556(d)
appropriate security, nor does it impose this section. The Department has (proponent of rule bears burden of
removed an unnecessary comma from persuasion) and Director, OWCP v.
any additional consequences for failing
subsection (b) in order to make the Greenwich Collieries, 512 U.S. 267
to comply with that obligation. Instead,
regulation easier to understand, but no (1994). The Department also pointed out
it simply provides more explicit notice
other changes have been made in it. that the majority in Seals rested on a
of those consequences.
Subpart J relatively narrow point: that the
(c) One comment approves in general administrative law judge and Benefits
terms of the enforcement provisions. 20 CFR 725.701 Review Board erroneously applied
(d) No other comments were received (a) After a miner has been found Fourth Circuit precedent when Sixth
concerning this section, and no changes totally disabled by pneumoconiosis Circuit law controlled and was
have been made in it. arising out of coal mine employment, inconsistent with Doris Coal. 147 F.3d
at 514 (Dowd, D.C.J), 515 (Boggs, J.). manifest after the underlying does preclude one defense: the operator
Citing the need for a uniform standard adjudication of entitlement, or that it cannot escape liability by trying to
of national applicability, the treated a preexisting pulmonary prove the medical service cannot
Department proposed several changes to condition adjudged not to have pertain to disabling pneumoconiosis
§ 725.701. 64 FR 55004 (Oct. 8, 1999). contributed to disability. It is the because the miner was disabled solely
The Department eliminated the Department’s intent merely to codify the from smoking or some other non-
reference to ‘‘ancillary pulmonary Court’s coverage presumption and its occupational cause. Once the miner
conditions’’ in subsection (b) because rebuttal methods as outlined in Fourth establishes (s)he is entitled to disability
the phrase was unnecessary and Circuit precedent. In light of Salyers and benefits, no element of entitlement can
arguably confusing. 64 FR 55004 (Oct. 8, Ling, the Department has revised be relitigated or otherwise questioned
1999). The Department also changed the § 725.701(e) to conform the regulation’s via the medical benefits litigation.
language of subsection (e) to clarify the rebuttal provisions to the decisions Consequently, the operator and its
specific facts which might rebut the issued by the Fourth Circuit since Doris physician must accept that the miner
presumption that a particular medical Coal. Accordingly, the Department has has a totally disabling respiratory or
expense is compensable. Subsection (e) replaced the phrase ‘‘was not for a pulmonary impairment, and that
contains a rebuttable presumption that a covered pulmonary disorder as defined pneumoconiosis, as defined in
pulmonary disorder for which the miner in § 718.201 of this subchapter,’’ with § 718.201, is a substantially contributing
receives a medical service or supply is ‘‘was for a pulmonary disorder apart cause of that impairment. See Ling, 176
caused or aggravated by from those previously associated with F.3d at 232 and n.13, citing Doris Coal,
pneumoconiosis. 64 FR 55060 (Oct. 8, the miner’s disability[.]’’ The foregoing 938 F.2d at 497 (operator cannot rebut
1999). In the second proposal, the explanation also responds to one presumption of benefits coverage by
Department also clarified subsection (f) comment which faulted the Department showing miner’s pneumoconiosis did
to ensure that the party opposing for omitting any discussion of Salyers in not at least aggravate pulmonary
benefits does not attempt to relitigate the second notice of proposed condition because ‘‘[t]he time for that
established facts by using medical rulemaking. argument had passed with the prior
evidence for rebuttal which is premised (c) In response to its second notice of
adjudication of disability’’).
on the absence of totally disabling (d) Two comments state without
rulemaking, the Department received
pneumoconiosis. Finally, the explanation that the medical benefits
numerous comments opposing the program implemented by these
Department acknowledged the
medical benefits program in general or regulations will force the coal industry
controlling weight a report from a
the § 725.701(e) presumption in to ‘‘subsidize’’ other private health
treating physician may receive in
particular because, in the commenters’ plans and insurance as well as the
determining the compensability of a
view, coal mine operators would be Medicare program. The Department
service or supply. 64 FR 55004 (Oct. 8,
forced to pay for medical treatment interprets this contention to mean that
1999).
(b) The Department has revised the unrelated to pneumoconiosis, especially the industry and its insurers will be
rebuttal provisions set forth in respiratory disorders caused by cigarette forced to financially assist other health
§ 725.701(e) in light of a decision from smoking. These same objections were care programs by paying for treatment
the Court of Appeals for the Fourth made to the version of § 725.701(e) expenses which are not actually related
Circuit issued after the second notice of contained in the Department’s initial to the miner’s pneumoconiosis, and
proposed rulemaking entered the final notice of proposed rulemaking. 64 FR should be paid by the other programs.
stage of administrative clearance. In 55003 (Oct. 8, 1999). In response, the The Department disagrees. Congress
General Trucking Corp. v. Salyers, 175 Department noted that operators may created the black lung medical benefits
F.3d 322 (4th Cir. 1999), the Court submit ‘‘appropriate medical evidence’’ program as the primary payor for the
reviewed the various means of rebutting showing the particular medical service treatment of miners afflicted with
the Doris Coal presumption as presented or supply relates to the miner’s disabling pneumoconiosis. The program
in Ling: smoking-related disease and not his covers the costs of treatment, services
pneumoconiosis. 64 FR 55004 (Oct. 8, and supplies only for that purpose.
It is certainly true that if the treatment at 1999). An operator may still make such
issue is found to be ‘beyond that necessary Consequently, the operator may avoid
a showing, although the Department has liability for any expense which is not for
to effectively treat a covered disorder, or is
not for a pulmonary disorder at all,’ then the revised the rebuttal provisions of the treatment of totally disabling
presumption ‘shall not carry the day.’ Ling, § 725.701(e) in the final rule. The nexus pneumoconiosis, and which therefore
176 F3d at 233. It does not follow, however, between the miner’s pneumoconiosis should be paid by some other health
that proof of these two circumstances is the and the disorder under treatment is only care program.
exclusive means of rebutting the presumed, and therefore subject to being (e) One comment contends the
presumption. disproved. The operator may produce Department misinterpreted Seals and
An employer contesting an award of evidence showing the treatment was for
medical benefits may also rebut the
Ling in its analysis of those cases. 64 FR
presumption by adducing sufficient credible
a particular pulmonary disorder apart 55003–04 (Oct. 8, 1999). The commenter
evidence that the claimant was treated for ‘a from those conditions previously also states the Department cannot
pulmonary condition that had not manifested associated with the miner’s disability, or ‘‘overrule’’ Seals by regulation because
itself, to some degree, at the onset of his exceeds the effective level of treatment that decision is based on an
disability,’ or for ‘a preexisting pulmonary for a covered disorder, or did not interpretation of the APA. The
condition adjudged not to have contributed involve a pulmonary disorder at all. As Department rejects both arguments. The
to his disability.’ Ling, 176 F.3d at 232. with the Doris Coal presumption, commenter does not identify any
175 F.3d at 324. The Salyers decision invocation shifts only the burden of specific mischaracterization or other
emphasizes the importance of affording production, not persuasion. The error in the Department’s interpretation
the party liable for medical benefits an operator must confront the presumption of either decision. The Department
opportunity to rebut the presumption by submitting evidence which, if believes its analysis is correct, and
with evidence that the service provided credited, establishes one of the means of declines to change its position on the
treated a condition which became rebuttal. Section 725.701(f), however, meaning of those decisions except to the
extent reflected in changes to the statutory and regulatory presumptions have a supportable basis which satisfies
rebuttal provisions contained in in the black lung benefits program, the legal test for a rational presumption.
§ 725.701(e). As for departing from the however, draw factual inferences from a The physician-commenter also urges
APA analysis of the majority in Seals, combination of medical and non- the Department to require rigorous
the comment is simply incorrect. The medical facts for purposes other than medical documentation for each
specific majority holding of Seals patient care. See 30 U.S.C. § 921(c)(1) medical treatment service, including
reversed the decisions of the (miner’s pneumoconiosis presumed contemporaneous objective testing,
administrative law judge and Benefits caused by coal mine employment if examinations, etc., to impose quality
Review Board because of an incorrect miner worked ten years); (c)(3) (miner controls on the treatment program. The
application of Fourth Circuit law to a who has complicated pneumoconiosis Department indirectly addressed this
case arising in the Sixth Circuit. Judge irrebuttably presumed totally disabled); concern in the notice of reproposed
Boggs (concurring), however, agreed 20 CFR. § 727.203(a)(1)–(4) (proof of one rulemaking. 64 FR 55004 (Oct. 8, 1999).
with Judge Moore (dissenting) ‘‘that it of enumerated medical facts about The Department noted that it receives
would not necessarily contravene miner’s pulmonary condition invokes 12,000 to 15,000 bills weekly for
Greenwich Collieries for the Secretary to presumption of all remaining elements treatment services, most of which
adopt a regulation shifting the burden of of entitlement); 20 CFR. § 725.309 involve relatively minor amounts in the
production in the manner of Doris $25.00 to $75.00 range. The Department
(material change in miner’s medical
Coal.’’ 147 F.3d at 517. Consequently, cited cost effectiveness and promptness
condition presumed if miner proves one
the majority holding does not rest on as practical reasons for using a
element of entitlement in duplicate
any APA considerations, and a majority presumption of coverage to expedite the
of the panel, albeit in dicta, claim previously not proven). ‘‘Like all
administrative process. The
acknowledges the Department’s rules of evidence that permit the
presumption supplants the need for
authority under Greenwich Collieries inference of an ultimate fact from a
more elaborate medical proof that the
(and, by extension, the APA) to predicate one, black lung benefits
particular service or expense involves
promulgate regulatory presumptions presumptions rest on a judgment that
the miner’s pneumoconiosis, at least
which reallocate burdens among parties. the relationship between the ultimate until the operator challenges the
The Department therefore rejects this and the predicate facts has a basis in the expense with credible medical
comment. logic of common understanding.’’ evidence. The Fourth Circuit reached
(f) One comment contends the Mullins Coal Co. v. Director, OWCP, 484 the same conclusion in Ling:
presumption of coverage for pulmonary U.S. 135, 157 n. 30 (1987), reh’g den.
484 U.S. 1047 (1988). The Department Hence, rather than compel the miner to
treatment is not supported by any
exhaustively document his claim for medical
scientific or medical information. The explained the logical basis and benefits, i.e., requiring him to again
commenter relies largely on a report administrative purpose for the laboriously obtain all the evidence that he
prepared by a physician for purposes of presumption in the notice of reproposed can that his shortness of breath, wheezing,
the rulemaking proceedings; the rulemaking. See generally 64 FR 55004 and coughing are still the result of his
physician addresses several of the (Oct. 8, 1999). A miner who is entitled pneumoconiosis, we have fashioned the
regulations from a medical standpoint to disability benefits has proven three Doris Coal presumption as a shorthand
and reviews the medical literature method of proving the same thing. The proof
basic medical facts: (s)he has
compiled during the rulemaking. With needed is a medical bill for the treatment of
pneumoconiosis as that disease is a pulmonary or respiratory disorder and/or
respect to § 725.701(e), the physician defined by § 718.201; (s)he has a totally associated symptoms.
challenges the reasonableness of disabling respiratory or pulmonary
presuming a connection between the 176 F.3d at 233 (emphasis in original).
impairment; and the pneumoconiosis
miner’s pneumoconiosis and any Section 725.701(e) does not eliminate
significantly contributes to that
pulmonary disorder for which (s)he the need for medical documentation for
respiratory or pulmonary impairment. treatment and services. The
seeks treatment. The physician notes Consequently, the miner has established
that many pulmonary disorders bear no presumption merely provides a short-
a connection between the compensable hand means of identifying expenses
relationship to pneumoconiosis, and disease and the disabling lung
their treatment is unaffected by the which are likely to be legitimate unless
condition. From those proven facts, the liable party opposes payment of
presence of pneumoconiosis. The
§ 725.701(e) draws a rational inference particular expenses.
physician further contends that each
that the need for treating the miner’s (g) One comment states generally that
patient encounter must be amply
documented by evidence that the compromised respiratory condition at the medical benefits program, as
treatment is necessary for the miner’s any given time is necessitated, directly reproposed, will promote fraud.
pneumoconiosis, and should include or indirectly, by the presence of Another comment contends that
medical testing, physical examinations, pneumoconiosis. This inference is reliance on the miner’s treating
etc. The Department acknowledges the rebuttable, and the operator may submit physician under § 725.701(f) will
concerns expressed by the comment and evidence showing the treatment is for a promote fraudulent payments because
accompanying medical views, but does particular pulmonary disorder apart the doctor has a financial incentive to
not consider any change in the from those conditions previously attribute the miner’s pulmonary
regulation to be necessary. associated with the miner’s disability, or problems to pneumoconiosis. The
As an initial matter, the fact that a exceeds the effective level of treatment commenter also alludes to a long-
physician might view the presumption for a covered disorder, or did not standing pattern of abuse of the black
as medically unwarranted does not involve a pulmonary disorder at all. The lung program by treating physicians
necessarily undermine its validity as a Fourth Circuit endorsed the same who mix compensable and non-
legal, or evidentiary, presumption. The general line of reasoning in Ling when compensable services when billing the
Department understands the physician’s it upheld the validity of the Doris Coal Trust Fund and operators as
objection to mean a physician would presumption. 176 F.3d at 233–34. The documented in Doris Coal Co. v.
not rely on such a presumption as a Department therefore disagrees with the Director, OWCP, 938 F.2d 492, 497–98
basis for treating a patient. Most of the commenter that § 725.701(e) does not (4th Cir. 1991). Finally, the comment
objects to the basic concept of special this section, and no other changes have 20 CFR 726.8
deference to a treating physician’s been made in it. (a) The Department proposed adding
opinion as proposed in § 718.104(d). § 726.8 in its first notice of proposed
20 CFR Part 726—Black Lung Benefits;
With respect to allegations of fraud, the rulemaking in order to define certain
Requirements for Coal Mine Operators’
professional integrity of any physician Insurance terms including ‘‘employ’’ and
should be accepted until particular acts ‘‘employment.’’ The definition of
of malfeasance are established in the The Department has received one
‘‘employ’’ and ‘‘employment’’ proposed
appropriate forum. The comment’s comment relevant to Part 726 in its
in subsection (d), was identical to that
allegations that particular physicians are entirety. The Department proposed
in proposed § 725.493(a)(1). 62 FR 3369
motivated by financial incentives can as revising only specific regulations in Part
726, and invited comment only on those (Jan. 22, 1997). In its second notice of
easily be directed toward any party- proposed rulemaking, the Department
affiliated physician, or group of such regulations, see 62 FR 3340 (Jan. 22,
1997); 64 FR 54970 (Oct. 8, 1999). The incorporated into subsection (d) a
physicians, who may benefit by change to the definition of the term
tailoring conclusions to fit the interests Department either made only technical
revisions to the remaining regulations in ‘‘employment’’ that it had also made to
of the party paying for the medical § 725.493. 64 FR 55005 (Oct. 8, 1999).
opinion. As for the commenter’s specific Part 726, or made no changes, see 62 FR
3340–41 (Jan. 22, 1997) (lists of The Department also responded to
suggestion that there is no cost comments concerning the retroactive
containment in the program and that technical revisions and unchanged
regulations); 64 FR 54970–71 (Oct. 8, effect of the proposal and the scope of
health care providers routinely seek the definitions. The Department stated
payment from the program for unrelated 1999) (same). Therefore, no changes are
being made to Part 726 in its entirety. its belief that the proposal was neither
charges, the Department accepts the improperly retroactive nor an
holding in Doris Coal. In this decision, Subpart A instrument for creating additional
the Court refused to sanction the insurer liability. Neither did the
20 CFR 726.2
practice of submitting an unitemized proposal intrude on insurance functions
bill for multiple services because such In its initial notice of proposed
reserved to the states. The Department
a practice could impose liability on the rulemaking, the Department proposed
noted the Court of Appeals for the
insurer for services unrelated to the adding subsection (e) to this regulation
Seventh Circuit’s holding that the Black
treatment of the miner’s in order to recognize the addition of
Lung Benefits Act ‘‘specifically relates
pneumoconiosis and encourage fraud. subpart D, implementing the civil
to the business of insurance and
938 F.2d at 497–98. The Court, however, money penalty provision of 30 U.S.C.
therefore does not implicate the
only alluded to the potential for fraud 933, to part 726. 62 FR 3369 (Jan. 22,
McCarran-Ferguson Act,’’ 15 U.S.C.
if unitemized billing were permitted. It 1997). The Department did not discuss
1012, which confers primacy on state
did not address the practice as an the regulation in its second notice of
proposed rulemaking. See list of law for the regulation of the insurance
historical reality or beyond the facts industry, unless a conflicting federal
involving the one treating physician Changes in the Department’s Second
Proposal, 64 FR 54971 (Oct. 8, 1999). statute specifically provides otherwise.
involved in the case. The Department Lovilia Coal Co. v. Williams, 143 F.3d
therefore rejects the position that The Department has capitalized the
word ‘‘subpart’’ in subsection (b) to be 317, 325 (7th Cir. 1998). The
miners’ treating physicians should be Department also justified the scope of
viewed with special suspicion as a consistent with the use of that word in
subparts (c), (d), and (e). In subsection the proposed definition as well within
group because of a motive for fraudulent the rulemaking authority granted the
diagnoses and/or treatment. The (d), the Department has replaced the
phrase ‘‘coal operator’’ with the phrase Department by Congress.
Department responds to the objections (b) One comment objects to the
concerning special deference to the ‘‘coal mine operator’’ to be consistent
with subsections (c) and (e). No Department’s definitions of the terms
treating physician’s opinion, as ‘‘employ’’ and ‘‘employment.’’ The
proposed in § 718.104(d), in the comments were received concerning
this section, and no other changes have commenter argues that the Department
preamble to that subsection. is improperly interfering with existing
been made in it.
(h) One comment urges the employment relationships by adopting
Department to join the lawsuit filed by 20 CFR 726.3 regulations that differ from those
the Department of Justice to recover This regulation was not opened for provided by state employment and
money from the tobacco industry for comment in the Department’s first insurance laws. The Department
costs incurred by the black lung notice of proposed rulemaking. See list provided a detailed explanation of both
program in treating sick cigarette of Unchanged Regulations, 62 FR 3341 its authority and its reasoning for
smokers. The comment is not directed (Jan. 22, 1997). The Department proposing this regulation in its October
to any regulatory proposal, and no proposed a revision to subsection (b) in 8, 1999 proposal. See 64 Fed. Reg.
response is therefore warranted. its second notice of proposed 55005 (Oct. 8, 1999). The Department
(i) The Department received several rulemaking at the request of the Office does not agree that the regulations it
comments which approve of § 725.701. of Federal Register to clarify the issues to implement the Black Lung
(j) No other comments were received treatment of cases in which the Benefits Act interfere with employment
concerning this section, and no other regulations in Part 726 appear to relationships recognized by the various
changes have been made in it. conflict with the regulations states. The Black Lung Benefits Act
incorporated from Part 725. 64 FR 55005 requires that a coal mine operator’s
20 CFR 725.706
(Oct. 8, 1999). In subsection (a), the liability for a miner’s black lung benefits
The Department proposed changing Department has replaced the phrase be based on that operator’s employment
the no-approval dollar amount in ‘‘coal operator’’ with the phrase ‘‘coal of the miner. See 30 U.S.C. 932(a)
§ 725.706(b) from $100.00 to $300.00 in mine operator’’ to be consistent with (making the operator of a coal mine
the initial notice of proposed subsection (b). No comments were liable for benefits based on ‘‘death or
rulemaking. 62 FR 3424 (Jan. 22, 1997). received concerning this section, and no total disability due to pneumoconiosis
No comments were received concerning other changes have been made in it. arising out of employment in such
mine’’). Congress did not specifically ‘‘operator,’’ as used in section 423(a), discussions, the Department recognized
define the term ‘‘employment,’’ includes ‘‘independent contractors who that it lacks the authority to make
however. In such cases, an perform services or construction at such substantive changes to the regulations in
administrative agency is authorized to mines.’’ 30 U.S.C. § 802(d). This a manner that applies retroactively. For
promulgate regulations to fill the gaps definition of ‘‘operator’’ thus includes example, if the previous civil money
Congress left in the statute. Morton v. companies that provide employees penalty regulation, 20 CFR 725.495
Ruiz, 415 U.S. 199, 231 (1974). In under a leasing arrangement. The (1999), did not permit the assessment of
addition, the Department is authorized Department therefore does not agree that penalties against an operator for its
to promulgate regulations to ensure employee leasing companies should not failure to secure the benefits payable to
sufficient insurance coverage for all of be considered ‘‘operators’’ under the its leased employees, the Department
the liabilities borne by operators under Black Lung Benefits Act. The may not assess a penalty against that
the Act. 30 U.S.C. 933(b)(3) (permitting Department’s ability to monitor the use operator under the revised regulations
the Secretary to promulgate regulations of temporary contractual arrangements for any period prior to the effective date
governing the content of insurance by the coal mining industry, however, is of these regulations. Although the
policies issued to cover liability under limited. In addition, the commenter’s Department believes that the previous
the Black Lung Benefits Act). The different interpretation of the term regulation is broad enough to permit the
Department’s definition of the terms ‘‘operator’’ suggests that any effort to assessment of civil money penalties in
‘‘employ’’ and ‘‘employment’’ is impose civil money penalties on a these cases, it also recognizes that the
intended to meet its responsibility to leasing company under Part 726, or to issue must be resolved on a case-by-case
properly administer the Black Lung assign liability to such an entity under basis in the context of litigating penalty
Benefits Act. The Department does not Part 725, would be vigorously contested. assessments.
believe that its definitions will in any Accordingly, the Department has It is also important to note that the
way affect the application of state law defined the terms ‘‘employ’’ and revised regulation does not affect the
to the relationships between coal mine ‘‘employment’’ in a manner which liability of insurers for claims filed prior
operators and the miners they employ. maximizes its ability to ensure the to the effective date of the regulations.
(c) The same commenter also argues insurance coverage of leased employees. Under the insurance endorsement set
that the Department’s regulation will By contrast, the application of both forth at § 726.203, an insurer is already
eliminate the ability of a coal mine Parts 725 and 726 to traditional coal liable for all of the miners employed by
operator to enter into an employee mine operators is quite clear. The Act its insured. See Lovilia Coal Co. v.
leasing arrangement with an employee authorizes the Department to ensure Williams, 143 F.3d 317, 322 (7th Cir.
leasing company. The commenter that all of the individuals performing 1998). An employer’s liability, in turn,
observes that the current model mining work under that operator’s is determined by the regulations set
employee leasing rule of the National direction are covered by appropriate forth at 20 CFR §§ 725.491–.495. The
Association of Insurance Commissioners security. In addition, those coal mine Department has stated explicitly that the
requires the employee leasing company operators who use leased employees are revised version of those regulations will
to provide workers’ compensation in the best position to ensure that those not be applied retroactively. See § 725.2.
coverage, including federal black lung employees are covered by the necessary Accordingly, if the prior regulations did
benefits coverage, for its employees. insurance. The Department does not not permit the imposition of liability
According to the commenter, the intend to require that the traditional against a coal mine operator for benefits
Department’s proposal, which would coal mine operator purchase insurance owed to a miner whose services were
hold lessors responsible for the when the leasing company has done so, obtained from a leasing company, they
insurance of their leased employees, but it does intend the regulations to will not permit imposition of liability
will make employee leasing a less viable provide an incentive for the coal mine against that operator’s insurer. The
option. operator to deal only with those leasing
Department thus does not agree that the
The Department does not believe that companies that have purchased
revised regulation is impermissively
its proposal will interfere with an insurance meeting federal standards for
employer’s economic decision to use retroactive.
black lung benefits coverage. See 20
(e) No other comments were received
leased employees in its coal mine CFR 726.203 (1999). Contrary to the
concerning this section, and no changes
operations. Moreover, the Department commenter’s suggestion, the rule thus
does not intend to force coal mine have been made in it.
does not make insurers and state funds
operators to secure the payment of the enforcement officers of the Subpart B
benefits for leased employees when the Department. Rather, the traditional coal 20 CFR 726.101
leasing company has already obtained mine operator is simply on notice that
the necessary insurance. In such cases, it may be held liable for the benefits of In its initial notice of proposed
the operator will be considered to have leased employees if the leasing rulemaking, the Department proposed
met the security requirements of the Act company fails to procure the necessary revising this regulation to delete the
with respect to those employees. Such insurance coverage, or for any civil formula used in 1974 to establish the
a practice is sound from the point of money penalties arising as a result of amount and types of security required
view of both the traditional coal mine that failure. for an operator to be authorized to self-
operator and the employee leasing (d) Finally, the same comment objects insure. The proposal also removed the
company. Although the commenter that the Department’s regulation is reference in subsection (a) to indemnity
suggests that leasing companies are not impermissibly retroactive. The bonds and negotiable securities as the
mine operators, that is not entirely clear Department has discussed the only forms of acceptable security. 62 FR
under the Black Lung Benefits Act. retroactive effect of its regulations in 3369 (Jan. 22, 1997). The Department
Section 423(a) of the Act, 30 U.S.C. considerable detail in both its first and did not discuss the regulation in its
§ 933(a), requires ‘‘each operator of a second notices of proposed rulemaking. second notice of proposed rulemaking.
coal mine’’ to secure the payment of See discussions of § 725.2 at 62 Fed. See list of Changes in the Department’s
benefits by qualifying as a self-insurer or Reg. 3347–48 (Jan. 22, 1997) and 64 Fed. Second Proposal, 64 FR 54971 (Oct. 8,
purchasing insurance. The term Reg. 54981–82 (Oct. 8, 1999). In those 1999). The Department has revised
subsections (b)(1), (2), and (3), and of a surety company which writes the references to the security required to be
subsection (c) in order to clarify the most recent indemnity bond for a provided by a self-insured operator. 62
meaning of the regulation. No comments responsible operator, and the FR 3369 (Jan. 22, 1997). The Department
were received concerning this section, exoneration of all previous sureties. No did not discuss the regulation in its
and no other changes have been made change in the regulation is necessary. In second notice of proposed rulemaking.
in it. United States of America v. Insurance See list of Changes in the Department’s
Co. of North America, 83 F.3d 1507 Second Proposal, 64 FR 54971 (Oct. 8,
20 CFR 726.104
(D.C. Cir. 1996), the Department argued 1999). The Department has revised the
In its initial notice of proposed that a surety assumes liability for all of regulation to clarify its meaning. No
rulemaking, the Department proposed an operator’s existing obligations when comments were received concerning
revising subsection (b) to recognize two the bond is written and continuing until this section, and no other changes have
additional forms of security available to the termination of the bond. The Court been made in it.
an authorized self-insurer: Letters of rejected this argument. It held that a
credit and tax-exempt trusts. 62 FR 3369 20 CFR 726.111
surety is liable only for those obligations
(Jan. 22, 1997). The Department did not which actually accrue to the responsible In its initial notice of proposed
discuss the regulation in its second operator during the lifetime of the bond, rulemaking, the Department proposed
notice of proposed rulemaking. See list and not for all outstanding liabilities of deleting a reference to indemnity bonds
of Changes in the Department’s Second the insured entity. 83 F.3d at 1511. The and negotiable securities in favor of a
Proposal, 64 FR 54971 (Oct. 8, 1999). Court also rejected the notion that each more general reference to the security
The Department has revised subsections successive bond exonerates any required to be provided by a self-
(a) and (d) to clarify the meaning of previous surety to which liability has insured operator. 62 FR 3369 (Jan. 22,
those provisions. The Department attached. 83 F.3d at 1512–13. The Court 1997). The Department did not discuss
received one comment concerning this based these holdings on its the regulation in its second notice of
regulation; that comment is addressed interpretation of the bond language proposed rulemaking. See list of
under § 726.106. No other comments itself. Consequently, the commenter’s Changes in the Department’s Second
were received concerning this section, recommendation can be accomplished Proposal, 64 FR 54971 (Oct. 8, 1999).
and no other changes have been made only by further specifying in the bond’s The Department has revised the
in it. language, as prescribed by the regulation to clarify its meaning. No
Department, the scope of the bond’s comments were received concerning
20 CFR 726.105 this section, and no other changes have
coverage and its terms of release. The
In its initial notice of proposed Department has yet to determine been made in it.
rulemaking, the Department proposed whether revision of the bond form is 20 CFR 726.114
deleting the reference to the formula appropriate. In any event, the
contained in 20 CFR 725.101(1999), in commenter’s suggestion does not In its initial notice of proposed
favor of a non-exclusive list of factors to require changing the language of the rulemaking, the Department proposed
be considered by the Department in regulation. adding subsection (c) to codify the
determining the appropriate amount of (c) The Department has revised the Department’s position that self-insured
security required to be provided by a first sentences of subsections (b) and (c) coal mine operators who cease mining
self-insured operator. 62 FR 3369 (Jan. to clarify the meaning of these coal nevertheless have a continuing
22, 1997). The Department did not provisions. No other comments were responsibility to maintain adequate
discuss the regulation in its second received concerning this section, and no security to cover their potential liability
notice of proposed rulemaking. See list other changes have been made in it. under the Black Lung Benefits Act. The
of Changes in the Department’s Second Department also replaced a specific
Proposal, 64 FR 54971 (Oct. 8, 1999). 20 CFR 726.109 reference to negotiable securities and
The Department has revised the first In its initial notice of proposed indemnity bonds in subsection (b) with
and third sentences of the regulation in rulemaking, the Department proposed a more general reference to the security
order to clarify their meaning. No deleting specific references to required to be provided by a self-
comments were received concerning indemnity bonds and negotiable insured operator. 62 FR 3369 (Jan. 22,
this section, and no other changes have securities in favor of more general 1997). The Department did not discuss
been made in it. references to the security required to be the regulation in its second notice of
provided by a self-insured operator. 62 proposed rulemaking. See list of
20 CFR 726.106 FR 3369 (Jan. 22, 1997). The Department Changes in the Department’s Second
(a) In its initial notice of proposed did not discuss the regulation in its Proposal, 64 FR 54971 (Oct. 8, 1999). In
rulemaking, the Department proposed second notice of proposed rulemaking. the third sentence of subsection (a), the
deleting an incorrect reference to See list of Changes in the Department’s Department has replaced the word
specific sections in Title 31 of the Code Second Proposal, 64 FR 54971 (Oct. 8, ‘‘have’’ with the word ‘‘has’’ to make the
of Federal Regulations and replacing the 1999). The Department has revised the sentence grammatically correct. The
reference with a citation to the second and third sentences of the Department has also revised subsections
appropriate regulatory part governing regulation in order to clarify their (a) and (c) to clarify their meaning. No
deposits with the United States. 62 FR meaning. No comments were received comments were received concerning
3369 (Jan. 22, 1997). The Department concerning this section, and no other this section, and no other changes have
did not discuss the regulation in its changes have been made in it. been made in it.
second notice of proposed rulemaking. Subpart C
See list of Changes in the Department’s 20 CFR 726.110
Second Proposal, 64 FR 54971 (Oct. 8, In its initial notice of proposed 20 CFR 726.203
1999). rulemaking, the Department proposed (a) The Department made technical
(b) One comment urges the deleting references to indemnity bonds revisions to § 726.203 in its first notice
Department to include language in this and negotiable securities in subsections of proposed rulemaking, but did not
regulation confirming the sole liability (a)(3) and (b) in favor of more general open the regulation for comment. See
list of Technical revisions, 62 FR 3340– liability for claims that are based on certain claims. For example, if an
41 (Jan. 22, 1997). At the Department’s employment that ended before an operator did not purchase insurance
July 22, 1997 hearing in Washington, operator first obtained insurance to until November 1, 1973, the revised
D.C., however, the Department heard secure its liability under the Act. endorsement would cover the miner’s
testimony indicating that, since 1984, Second, the revision limits an insurer’s last exposure in the employment of the
the insurance industry had used an liability for claims that are approved as insured operator only if it ‘‘occurred
endorsement for black lung insurance a result of amendments to the Black prior to July 1, 1973,’’ and therefore
that differed from the endorsement set Lung Benefits Act. would not cover any claims based on
forth in § 726.203. Transcript, Hearing The current black lung insurance employment that ended between July 1,
on Proposed Changes to the Black Lung endorsement obligates an insurer to 1973 and November 1, 1973. If the coal
Program Regulations, July 22, 1997, p. provide coverage to an operator in two company is still in business, the claim
127 (testimony of Robert Dorsey). In its different types of claims. First, the would be the responsibility of that
written comments, the industry stated insurer is liable when the miner’s last company. If the coal company is no
that the Department had approved use exposure to coal mine dust in the longer in business, the claim would
of the new endorsement. Because the employment of the insured ‘‘occurs become the responsibility of the Black
Department’s records contained no during the policy period.’’ Thus, if a Lung Disability Trust Fund. Either
document authorizing use of a different miner is last employed by XYZ Coal result is unacceptable. Although the
endorsement, the Department opened Company on March 1, 1990, and XYZ Department recognizes that this change
the regulation for comment, and invited Coal Company is the coal mine operator would not affect a significant number of
the industry to produce proof that the responsible for the payment of that claims, it could materially alter the
Department had approved the change. miner’s benefits, the insurer whose liability of the insurance industry in
In addition, the Department invited policy covered XYZ on March 1, 1990 some cases. Thus, the Department does
comment on the endorsement language will be liable for the payment of those not believe that the revision is
that the insurance industry had benefits. In addition, however, the appropriate.
supplied. 64 FR 55005–06 (Oct. 8, endorsement covers a second type of The second material change in the
1999). claim. Prior to the Black Lung Benefits endorsement is potentially more
(b) In response to the second notice of Reform Act of 1977, the Black Lung serious. The current endorsement
proposed rulemaking, the insurance Benefits Act obligated employers to pay obligates an insurer for liability that
industry submitted two affidavits. benefits to former employees who were arises under the Black Lung Benefits Act
Rulemaking Record, Exhibit 89–37, totally disabled due to pneumoconiosis and ‘‘any laws amendatory thereto, or
Appendix G. One, from a former vice arising out of coal mine employment, no supplementary thereto, which may be or
president and general counsel of the matter when their employment ended. become effective while this policy is in
National Council on Compensation See Usery v. Turner Elkhorn Mining Co., force.’’ Following the Black Lung
Insurance (NCCI), states that ‘‘NCCI was 428 U.S. 1, 15–16 (1976) (observing that Benefits Reform Act of 1977, several
informed by officials of the Office of the Act has ‘‘some retrospective effect’’). Virginia coal mine operators sued two
Workers’ Compensation Programs, in Because operators were not required to insurers in federal district court to
writing, that the agency had no purchase insurance until January 1, obtain a declaratory judgment regarding
objection to the changes.’’ The affidavit 1974, however, the endorsement the coverage of claims that were subject
also states that the changes were put contained a second clause providing to approval under the new criteria. The
into use. The other affidavit, from coverage if the miner’s last exposure in court agreed with the operators and held
NCCI’s current general counsel, states the employment of the insured operator that, under the Department’s
that NCCI’s schedule for the retention of ‘‘occurred prior to (effective date) and endorsement, a policy was ‘‘in force’’ as
records requires the council to maintain claim based on such disease is first filed long as claims could be filed against it.
correspondence for 10 years, and that against the insured during the policy National Independent Coal Operators
correspondence more than 10 years old period.’’ Thus, if a miner last worked for Association, Inc. v. Old Republic
is destroyed in accordance with XYZ Coal Company in 1972, but did not Insurance Co., 544 F. Supp. 520, 527–
established policy. Accordingly, the file a claim until July 1, 1978, the 8 (W.D.Va. 1982). The court accordingly
affiant stated, NCCI was unable to insurer whose policy covered XYZ on rejected the argument of the insurers
produce a copy of the Department’s the 1978 filing date would be liable for that the term ‘‘in force’’ was
‘‘acknowledgment’’ of the revised the miner’s benefits. synonymous with the term ‘‘policy
insurance endorsement. The regulations define the term period,’’ and that an insurer was liable
The Department has conducted a ‘‘effective date’’ in the endorsement as only to the extent of amendatory or
second thorough search of its files, the effective date of the operator’s first supplementary laws enacted during the
including files in the Office of Workers’ insurance policy providing coverage for one-year period covered by each policy.
Compensation Programs, the the operator’s federal black lung benefits See 20 CFR 726.206 (a policy shall be
Employment Standards Administration, liability. 20 CFR 726.203(b) (1999). issued for the term of one year from the
and the Office of the Solicitor. Although Thus, if the operator did not obtain its date on which it becomes effective). The
the Department’s files contain first policy until January 1, 1974, that court stated that if the insurers had
correspondence with NCCI dating back policy would cover any claims based on intended that meaning ‘‘it should have
to 1984, the Department’s search failed employment that ended prior to that been made clear to the plaintiffs
to produce any correspondence in date. The revised endorsement offered [operators] by either using ‘policy
which the Department approved NCCI’s by the insurance industry replaces the period’ where the words ‘in force’
revised insurance endorsement. term ‘‘effective date’’ with the date ‘‘July appear, or by defining ‘in force’
Moreover, the Department does not 1, 1973.’’ Although a number of somewhere in the contract.’’ National
believe that it would have approved the operators did purchase insurance before Independent Coal Operators
proposed revision. The revision differs January 1, 1974, none did so until after Association at 528.
in two material respects from the July 1, 1973. Accordingly, the industry’s The court’s decision was issued in
endorsement set forth in § 726.203. revised endorsement would potentially 1982, and the insurance industry
First, the revision limits an insurer’s leave coal mine operators uninsured for quickly accepted the court’s invitation.
The revised endorsement, apparently accept it. The commenter’s second penalties based on the number of the
submitted to the Department in 1983, suggestion states that the addition of operator’s employees, the length of time
replaces the language in the current subsections (b)(1) and (b)(2) to § 725.493 the operator’s uninsured status
endorsement that obligates the insurer have created a conflict with continues following notification, and its
to cover liability resulting from § 726.203(c)(2), and made the latter constructive and actual notice of its
amendments while the policy is ‘‘in provision redundant. The Department obligation to secure. In addition, the
force’’ with a phrase obligating the disagrees because the two regulations Department proposed allowing the
insurer to cover liability resulting from serve wholly different purposes. Section initial assessment of penalties by the
‘‘any amendment to the law that is in 725.493(b)(1) governs the liability of Office of Workers’ Compensation
effect during the policy period.’’ This prior and successor operators in two Programs to become final if neither the
altered language would permit the cases: (1) Where the miner was operator nor its officers filed a timely
insurance industry to accomplish what employed by the successor after the sale notice of contest. The proposal also
it failed to win in the 1982 litigation, giving rise to successor liability; and (2) subjected decisions of administrative
i.e., an exemption from liability where the miner was never employed by law judges on penalty issues to
resulting from any future amendments. the successor operator. Subsection (b)(2) discretionary review by the Secretary.
Like the other proposed change, this governs the successor liability of The Department did not discuss these
revision would increase the exposure of companies whose relationship to the regulations in its second notice of
coal mine operators and the Black Lung prior operator is as a parent company, proposed rulemaking. See list of
Disability Trust Fund, and is therefore as members of joint ventures, a partner, Changes in the Department’s Second
unacceptable to the Department. or a company that substantially owned Proposal, 64 FR 54971 (Oct. 8, 1999).
Because the revised black lung or controlled the prior operator. Section (b) The Department has made several
endorsement offered by the insurance 726.203(c)(2) governs the interpretation minor changes to the regulations in
industry materially alters the obligations of the insurance contract in a case Subpart D of Part 726. In § 726.302(c)(3)
and coverage provided by the insurance where the insured company is liable as and (4), the Department replaced a
industry under the Black Lung Benefits a successor operator. Because the reference to subsection (b) with a
Act, the Department must reject that sections 725.493 and 726.203 govern reference to subsection (c)(2)(i) to
endorsement. Accordingly, no changes different subjects, the Department does correctly identify the applicable
are made to § 726.203. not believe that the regulations are in provision. In § 726.308, the Department
(c) One comment urges the conflict, or that subsection (c)(2) is corrected the address of the Black Lung
Department to add a sentence to redundant. Benefits Division of the Office of the
subsection (d) of the regulation. The (d) No other comments were received Solicitor and added a reference to
sentence, which the commenter states concerning this section, and no changes § 725.311, which lists federal holidays.
would conform the regulation to state have been made in it. In § 726.313(f), the Department replaced
regulatory regimes, would read as the word ‘‘will’’ with the word ‘‘shall’’
follows: ‘‘The requirements of this 20 CFR 726.208
to clarify the Department’s intent. The
section shall be construed to the extent Although the Department received Department has made minor revisions to
possible, harmoniously with the comments under this section, the §§ 726.300, 726.301, 726.302, and
workers’ compensation rules and regulation was not open for comment, 726.305 to clarify their meanings.
practices of the state is [sic] when the see 62 Fed. Reg. 3341 (Jan. 22, 1997); 64 (c) One comment is critical of the
coverage is provided.’’ Rulemaking Fed. Reg. 54970 (Oct. 8, 1999). The Department’s failure to enforce its
Record, Exhibit 89–37, pp. 177–178. Department made only a technical current requirement (20 CFR § 725.495
The commenter does not suggest any change to the regulation in the second (1999)) that coal mine operators either
problem in the current regulations that notice of proposed rulemaking. purchase commercial insurance or
this sentence is intended to correct, and Accordingly, no changes are being made qualify as self-insured entities. The
the Department declines to add a in this section. commenter argues that if § 725.495 was
sentence whose intent is unclear. To the 20 CFR 726.211 enforced to its fullest extent, the
extent that this sentence could be Department would not find it necessary
interpreted to require a result different Although the Department received to alter the methods used to identify
from that reached in Lovilia Coal Co. v. comments under this section, the responsible operators. The Department
Williams, 143 F.3d 317 (7th Cir. 1998), regulation was not open for comment, provided a detailed explanation of the
in which the Court of Appeals for the see 62 Fed. Reg. 3341 (Jan. 22, 1997); 64 purpose behind its proposed revision of
Seventh Circuit held that the federal Fed. Reg. 54970 (Oct. 8, 1999). The the civil money penalty regulations in
black lung insurance endorsement was Department made only a technical its initial notice of proposed
not subject to exclusions available change in the regulation. Accordingly, rulemaking. 62 FR 3370–71 (Jan. 22,
under state law, the Department also no changes are being made in this 1997). Subpart D of part 726 replaces
does not believe that it would be section. § 725.495 with a comprehensive scheme
appropriate. Subpart D for the imposition of graduated
The commenter also renews a penalties on those operators who fail to
suggestion, made in response to the first 20 CFR 726.300–726.320 secure their liability for benefits. The
notice of proposed rulemaking, that (a) In its first notice of proposed previous regulation required only that
subsections (b) and (c)(2) of § 726.203 rulemaking, the Department proposed a an administrative law judge levy the
should be eliminated. The commenter’s complete revision of the procedural and maximum penalty possible in the
first suggestion is premised on the substantive regulations governing the absence of ‘‘mitigating circumstances,’’
Department’s acceptance of the imposition of civil money penalties and provided no guidance or criteria for
insurance industry’s revised against operators that fail to secure the determining an appropriate assessment.
endorsement. As discussed above, the payment of benefits under the Black The revised regulations fill this void.
Department does not believe that the Lung Benefits Act, 30 U.S.C. 933(d)(1). The Department thus disagrees with the
revised endorsement provides necessary 62 FR 3370 (Jan. 22, 1997). These commenter’s view that vigorous
coverage and therefore has refused to revisions included a series of graduated enforcement of penalties under 20 CFR
§ 725.495 (1999) would eliminate the as revised, will refer individuals to the expenditures by State, local and tribal
need to revisit the Department’s method 1999 version of title 20 of the Code of governments, or increased expenditures
of identifying responsible operators. Federal Regulations for a copy of the by the private sector of more than $100
Consequently, the revised regulations regulations. See discussion of § 725.4, million in any one year.
represent a necessary exercise of the above; 62 FR 3348, 3386 (Jan. 22, 1997). Executive Order 13132
Department’s rulemaking authority. The Department did not discuss Part
(d) One comment generally 727 in its second notice of proposed The Department has reviewed this
characterizes this revision as adding rulemaking. See list of Changes in the rule in accordance with Executive Order
‘‘onerous’’ penalties to the current Department’s Second Proposal, 64 FR 13132 regarding federalism, and has
program, but makes no specific criticism 54971 (Oct. 8, 1999). determined that it does not have
of them. The revised Subpart D of part (b) Three comments urge the ‘‘federalism implications.’’ The rule
726 does not add any penalty not Department not to discontinue its does not have ‘‘substantial effects on the
specifically authorized by 30 U.S.C. annual publication of Part 727 because States, on the relationship between the
§ 933(d), and not contained in the the part governs claims still pending in national government and the States, or
previous regulations. Moreover, the various stages of adjudication. Although on the distribution of power and
graduated scale of penalties contained the Department recognizes that the Part responsibilities among the various
in the revision provides specific 727 regulations are applicable to some levels of government.’’
guidelines for computing penalties and pending claims, the Department does Paperwork Reduction Act
may result in a lesser penalty being not believe that the existence of this
imposed than the former regulation The changes establish no new record
relatively small number of cases justifies
would have required. This comment keeping requirements. Moreover, they
the continued publication of the part in
does not provide any other basis for a reduce the volume of medical
the Code of Federal Regulations. The
substantive response by the Department. examination and consultants’ reports
parties to these claims are already
(e) One comment observes that the which currently are created solely for
familiar with the regulations, and have
prospect of civil money penalties may litigation by limiting the amount of such
received sufficient notice of the
encourage an unsecured operator to pass medical evidence which will be
Department’s intention to cease
on its liabilities to an insured successor admissible in black lung proceedings.
publication to allow them to retain their
whose carrier has not collected a current copies of the Code. Accordingly, Regulatory Flexibility Act, as Amended
premium reflecting the additional the Department has discontinued the
liability. To the extent that such a The Regulatory Flexibility Act
annual publication of Part 727. (‘‘RFA’’) was enacted by Congress in
possibility exists in cases where the (c) No other comments were received
prior operator subsequently becomes 1980 ‘‘to encourage administrative
concerning this part, and no changes agencies to consider the potential
unable to pay benefits to its former have been made in it.
employees, it implicates business impact of nascent federal regulations on
considerations, not legal questions. An Drafting Information small businesses.’’ Associated Fisheries
insured operator should weigh the of Maine, Inc. v. Daley, 127 F.3d 104,
This document was prepared under
potential effect of acquiring an entity 111 (1st Cir. 1997). The preamble to the
the direction and supervision of Bernard
with unsecured benefits liability as a RFA provides in part as follows:
Anderson, Assistant Secretary of Labor
factor in the financial soundness of for Employment Standards. It is the purpose of this Act to establish as
making the acquisition. The possibility The principal authors of this a principle of regulatory issuance that
of adverse economic effects on some agencies shall endeavor, consistent with the
document are Rae Ellen James, Deputy
objectives of the rule and of applicable
future mergers or acquisitions, however, Associate Solicitor; Richard Seid, statutes, to fit regulatory and informational
does not excuse the Department’s Counsel for Administrative Litigation requirements to the scale of the businesses,
obligation to enforce compliance with and Legal Advice; and Michael Denney, organizations, and governmental
the Act’s insurance requirements and to Counsel for Enforcement, Black Lung jurisdictions subject to regulation. To achieve
penalize a failure to comply. Benefits Division, Office of the Solicitor, this principle, agencies are required to solicit
(f) Two comments approve of the U.S. Department of Labor. Personnel and consider flexible regulatory proposals
proposed civil money penalties. No from the Division of Coal Mine Workers’ and to explain the rationale for their actions
other comments were received to assure that such proposals are given
Compensation, Office of Workers’ serious consideration.
concerning this subpart, and no other Compensation Programs, Employment
changes have been made in it. Standards Administration, U.S. Pub. L. 96–354, 94 Stat. 1165 (1980).
Department of Labor, assisted in the The RFA outlines in some detail the
20 CFR Part 727 analysis required for compliance.
preparation of the document.
(a) In its first notice of proposed Unless the agency certifies that the rule
rulemaking, the Department proposed Executive Order 12866 will not have ‘‘a significant economic
deleting Part 727 from title 20 of the The Office of Information and impact on a substantial number of small
Code of Federal Regulations. 62 FR Regulatory Affairs of the Office of entities,’’ 5 U.S.C. 605, each agency that
3371, 3435 (Jan. 22, 1997). The Management and Budget has publishes a notice of proposed
Department explained that the Part 727 determined that the Department’s rulemaking must prepare an ‘‘initial
regulations, which govern black lung proposed rule represents a ‘‘significant regulatory flexibility analysis’’
benefits claims filed prior to April 1, regulatory action’’ under section 3(f)(4) describing the impact of the proposed
1980, are relevant only to a small of Executive Order 12866 and has rule on small entities. 5 U.S.C. 603(a).
minority of the claims currently reviewed the rule. That analysis, or a summary of the
pending. Because the parties to those analysis, must be published in the
claims are already familiar with the Unfunded Mandates Reform Act Federal Register when the notice of
standards in Part 727, the Department For purposes of the Unfunded proposed rulemaking is published, and
proposed to discontinue the annual Mandates Reform Act of 1995, this rule a copy of the analysis must be sent to
publication of that part. In lieu of does not include any federal mandate the Chief Counsel for Advocacy of the
continued publication, section 725.4(d), that may result in increased Small Business Administration.
In its initial notice of proposed mine operators purchased insurance to of the proposal until November 5, 1999,
rulemaking, the Department certified cover their obligations, although it it extended the comment period through
that the proposed revisions would not noted that this assumption probably January 6, 2000 to ensure that each
have a significant effect on a substantial overstated costs with respect to small business was given no less than
number of small businesses. 62 FR operators that are authorized to self- 60 days to submit comments, the length
3371–73 (Jan. 22, 1997). The insure. Logically, operators self-insure of the original comment period in the
Department’s certification was criticized only if they may do so at a lower cost. second notice of proposed rulemaking.
by both the coal mining industry and Exhibit 80 at p. 44. The analysis 64 FR 62997 (Nov. 18, 1999).
the Small Business Administration’s calculated that an increase in premiums Finally, the Regulatory Flexibility Act
Office of Advocacy. Industry argued that of this magnitude would result in a total requires that when an agency
the Department had grossly annual cost to the industry between promulgates a final rule after having
underestimated the effect of the $32.22 million and $88.32 million, with been required to publish a notice of
proposed rule. The Office of Advocacy a point estimate of $57.56 million. proposed rulemaking, the agency must
observed that the Department had not Exhibit 80 at p. 46. The Department prepare a final regulatory flexibility
used the size standards established by believes that these figures contain analysis. That analysis must contain:
the Small Business Administration, and substantial upward biases, and that they (1) a succinct statement of the need
that the Department did not provide a therefore overstate, by a considerable for, and objectives of, the rule;
factual basis for its certification. In amount, the total cost to industry. (2) a summary of the significant issues
particular, the Office of Advocacy took Specifically, the Department estimated raised by the public comments in
issue with the Department’s the costs based on the insurance response to the initial regulatory
interpretation of the term ‘‘significant premiums paid by underground coal flexibility analysis, a summary of the
economic impact.’’ mine operators. The insurance assessment of the agency of such issues,
In light of the comments the premiums paid by surface mine and a statement of any changes made in
Department received in response to the operators, which employ a substantial the proposed rule as a result of such
first notice of proposed rulemaking, the comments;
percentage of the people working in coal
Department included in its second (3) a description of and an estimate of
mine employment, are significantly
notice of proposed rulemaking an initial the number of small entities to which
lower. (See the economic analysis the rule will apply or an explanation of
regulatory flexibility analysis. That prepared by Milliman & Robertson, Inc.,
analysis included each of the why no such estimate is available;
at p. 6, Table 4; Rulemaking Record (4) a description of the projected
components identified by the RFA: (1) Exhibit 89–37, Appendix A.) In
A statement of the reasons for issuing reporting, recordkeeping and other
addition, coal mine operators who self- compliance requirements of the rule,
the proposed rule; (2) a statement of the insure their liabilities under the Black
objectives of, and legal basis for, the including an estimate of the classes of
Lung Benefits Act may be assumed to do small entities which will be subject to
proposed rule; (3) a description and, so because their costs are lower than the
where feasible, an estimate of the the requirement and the type of
costs of commercial insurance. professional skills necessary for
number of small businesses to which Although it is conservatively high, the
the rule would apply; (4) a description preparation of the report or record; and
Department believes the $57.56 million (5) a description of the steps the
of projected reporting, recordkeeping, point estimate to be the most useful
and other compliance requirements of agency has taken to minimize the
indicator of industry costs. The analysis significant economic impact on small
the proposed rule; and (5) an
concluded that the effects of this rise in entities consistent with the stated
identification of any rules that would
insurance costs would be most heavily objectives of applicable statutes,
overlap, duplicate, or conflict with the
felt by underground bituminous coal including a statement of the factual,
proposed rule. 5 U.S.C. 603(b). Finally,
mine operators with less than 20 policy, and legal reasons for selecting
as is also required by the RFA, the
employees, who would be in a poorer the alternative adopted in the final rule
analysis contained a description of
position to recoup those costs. Some of and why each one of the other
alternatives to the rule. 5 U.S.C. 603(c).
those operators, the analysis observed, significant alternatives to the rule
64 FR 55006–09 (Oct. 8, 1999).
The Regulatory Flexibility Act might be forced to suspend operations. considered by the agency which affect
‘‘plainly does not require economic Exhibit 80 at pp. 56–59. the impact on small entities was
analysis.’’ Alenco Communications, Inc. The RFA also requires that agencies rejected.
v. FCC, 201 F.3d 608, 625 (5th Cir. assure that small businesses have an 5 U.S.C. 604(a). The agency must make
2000). Because of the serious concerns opportunity to participate in the a copy of its final regulatory flexibility
raised in the comments to its initial rulemaking ‘‘through the reasonable use analysis available to the public, and
notice of proposed rulemaking, of techniques such as—* * * 3) the must publish its analysis or a summary
however, the Department undertook an direct notification of interested small of its analysis in the Federal Register.
extensive analysis of the effect of its entities; * * *’’ 5 U.S.C. 609(a)(3). 5 U.S.C. 604(b). The Department’s final
proposed rule on the coal mining Accordingly, the Department mailed a regulatory flexibility analysis is
industry in general and on small copy of its second notice of proposed published below.
businesses, as defined by the Small rulemaking, including its initial
Business Administration, in particular. regulatory flexibility analysis, to each Need for, and Objectives of, the Rule
Rulemaking Record, Exhibit 80. That coal mine operator identified in a The Department discussed its need to
analysis determined that the potential database maintained by the Mine Safety revise the black lung regulations in its
costs of the Department’s rule would be and Health Administration. In addition, initial regulatory flexibility analysis. 64
imposed on most coal mine operators the Department made a copy of its FR 55006–07 (Oct. 8, 1999). In that
through higher insurance premiums, economic analysis available to any analysis, the Department observed that
and that, in the long term, those interested party that requested it and the revisions satisfied a number of
insurance premiums could be expected posted it on the Internet. 64 FR 55008 different objectives. First, many of the
to rise by 39.3 percent. Exhibit 80 at p. (Oct. 8, 1999). Finally, because the revisions simply updated the
44. The analysis assumed that all coal Department did not complete its mailing regulations implementing the Black
Lung Benefits Act. The Department’s which may be compromised by the died due to pneumoconiosis) codify
initial analysis provided examples of United States and to reflect the repeal of nearly unanimous case law interpreting
much needed regulatory updates such the Federal Claims Collection Act, see the Department’s prior regulations. See
as those needed to reflect decisions of preamble to second notice of proposed preamble to § 718.204, paragraph (d),
the courts of appeals and to clarify the rulemaking, § 725.544, 64 FR 55002 explaining that the definition of ‘‘total
Department’s original intent when (Oct. 8, 1999). disability’’ requires proof of a totally
certain regulations were promulgated. In addition, over the last two decades, disabling respiratory or pulmonary
Similarly, the Department noted the many of the regulations in Parts 718 and impairment, preamble to § 718.205,
proposed regulatory revisions reflected 725 have been interpreted by both the paragraph (d), providing practical
changes that had occurred over the Benefits Review Board and the federal meaning to the regulatory standard that
previous 20 years in the diagnosis and appellate courts. The Department death is due to pneumoconiosis when
treatment of pneumoconiosis. strongly believes that, where these pneumoconiosis is a substantially
Paragraphs (1), (3), (4), and (6) of the interpretations represent a consensus of contributing cause of death; see also 62
section entitled ‘‘Reasons for, and opinion as to the meaning and correct FR 3345 (Jan. 22, 1997) (citing cases
Objectives of, the Proposed Rule,’’ application of particular regulations, defining when total disability is due to
discussed areas in which the that consensus should be embodied in pneumoconiosis under 20 CFR 718.204
Department sought to update its the Department’s regulations. One (1999)). Similarly, revised sections
regulations. commenter correctly observes that none 725.309, governing subsequent claims
of these courts specifically ordered the filed by the same individual, and
The black lung program regulations
Department to revise its regulations. The 725.310, governing requests for
were in need of significant revision to
Department believes, however, that the modification of a claim, reflect a body
make them current. The Department last
interests of all parties to the of decisional law that has developed
made substantive revisions to certain
adjudication of a claim—coal mine since these regulations were
regulations in 1983, see 48 FR 24272
operators and their insurers as well as promulgated in 1978. See preamble
(May 31, 1983), and those revisions
claimants—will be better served if a discussions of § 725.309, 62 FR 3351–52
reflected only substantive changes made
judicial consensus is reflected in the (Jan. 22, 1997), 64 FR 54984–85 (Oct. 8,
to the Black Lung Benefits Act by the
explicit language of the Department’s 1999), and above; and preamble
Black Lung Benefits Revenue Act of
regulations. Incorporating such a discussions of § 725.310, 62 FR 3353–54
1981, Pub. L. 97–119, Title I, 95 Stat. consensus will allow both the parties (Jan. 22, 1997), 64 FR 54985–86 (Oct. 8,
1635 (1981) and the Black Lung Benefits and the adjudication officer to use a 1999), and above.
Amendments of 1981, Pub. L. 97–119, current version of the regulation that The Department also believes that,
Title II, 95 Stat. 1644 (1981), both of does not require constant recourse to where the Board or the appellate courts
which became effective on January 1, databases of federal case law. Moreover, have identified issues which the
1982. Most of the regulations have not the black lung program serves a regulations do not adequately address,
been revised since they were originally population of applicants—individuals regulatory action is appropriate to
promulgated: Part 718 in 1980, Part 722 who spent their working lives in the correct that omission. Thus, section
in 1973, and Parts 725 and 727 in 1978. Nation’s coal mines—who cannot be 725.495 addresses a problem observed
See 45 FR 13678 (Feb. 29, 1980); 38 FR expected to be aware of all of the by the Fourth Circuit Court of Appeals
8328 (March 30, 1973); 43 FR 36772 judicial decisions bearing on their in Director, OWCP v. Trace Fork Coal
(Aug. 18, 1978). Some regulations, eligibility for benefits, and who thus Co., 67 F.3d 503, 507 (4th Cir. 1995),
however, did not reflect the cannot be expected to bring them to the viz., that ‘‘[t]he Black Lung Benefits Act
amendments to the Black Lung Benefits attention of the administrative law and its accompanying regulations do not
Act enacted over the last quarter judges who conduct formal hearings on specifically address who has the burden
century. For example, Part 722 sets forth applications for benefits under the Act. of proving the responsible operator
criteria states must meet when seeking For example, the substantive criteria issue.’’ Similarly, where the Board or
certification from the Secretary that governing a claimant’s eligibility for the appellate courts have interpreted a
their workers’ compensation programs benefits, set forth in Part 718, have been regulation in a manner different from
provide ‘‘adequate coverage’’ for the subject of numerous appellate that intended by the Department, the
occupational pneumoconiosis. These decisions. The Department’s preamble only way to ensure that the
regulations were never revised in light discussion of § 718.201 contains Department’s intent is fulfilled is to
of either the Black Lung Benefits Reform citations to a considerable body of case amend the regulations. See, e.g.,
Act of 1977, Pub. L. 95–239, 92 Stat. 95 law recognizing that pneumoconiosis, as preamble to first notice of proposed
(1978), or the Black Lung Benefits defined by the Act and the Department’s rulemaking, § 718.101, 62 FR 3341 (Jan.
Amendments of 1981. Similarly, the regulations, includes obstructive lung 22, 1997) (noting intent that standards
Secretary’s Part 725 regulations required disease arising from coal mine dust for ensuring the quality of medical
revision in order to reflect amendments exposure. Similarly, the preamble evidence be made uniformly applicable
to other statutes. For example, revised discussion of § 725.309 references those to all new evidence developed in the
§ 725.621 reflected the Debt Collection decisions noting that pneumoconiosis is claims adjudication process).
Improvement Act of 1996, Pub. L. 104– a latent, progressive disease. See Finally, in order to update its
334, 110 Stat. 1358 (1996), see preamble preamble to § 718.201, paragraph (f), regulations, the Department also needed
to first notice of proposed rulemaking, preamble to § 725.309, paragraph (b). to revise certain provisions in light of its
§ 725.621, 62 FR 3369 (Jan. 22, 1997). The Department’s revised definition of experience administering the program
Section 725.515 was revised to reflect ‘‘pneumoconiosis’’ in § 718.201 for over 25 years. This experience had
amendments to the Social Security Act, explicitly incorporates both of these demonstrated that the regulations did
see preamble to second notice of principles. The Department’s revisions not adequately address certain issues.
proposed rulemaking, § 725.515, 64 FR of §§ 718.204 (criteria for establishing For example, the former regulations
55001 (Oct. 8, 1999). Section 725.544 that a miner suffers from total disability provided little guidance as to when a
was amended to reflect the statutory due to pneumoconiosis) and 718.205 claimant could reasonably expect the
increase in the dollar amount of claims (criteria for establishing that a miner payment of monthly and retroactive
benefits from coal mine operators, see pulmonary evaluation. It will notify all identified in the program, see, e.g.,
preamble to first notice of proposed parties of their right to submit Venicassa v. Consolidation Coal Co.,
rulemaking, § 725.502, 62 FR 3365–66 additional evidence and to obtain 137 F.3d 197, 198 n.2 (3d Cir. 1998)
(Jan. 22, 1997). Similarly, the further adjudication of the claim. See (noting ‘‘a disturbing record of delay in
Department had learned that the rules preamble discussion of §§ 725.410– processing claims for black lung benefits
governing overpayments and their 725.413. One of the most important in prior cases’’). The Department’s
possible waiver varied depending on revisions made by the Department will regulations are intended to eliminate
whether the overpayment was made by limit the parties’ submission of that delay by, inter alia, reducing the
the Black Lung Disability Trust Fund or documentary medical evidence. This number of steps in the district director’s
a coal mine operator, see preamble to revision will require that the factfinder processing of a claim, requiring the
first notice of proposed rulemaking, evaluate a claimant’s eligibility based on timely development of evidence
§ 725.547, 62 FR 3366 (Jan. 22, 1997). the quality of medical evidence that the relevant to the issue of operator liability
In addition to making its regulations parties submit, rather than the and eliminating the possibility of
current, the Department intended to numerical superiority of the evidence remands from the Office of
revise its regulations to streamline the on either side. See preamble discussion Administrative Law Judges for the
adjudication of claims under the Act. 62 of § 725.414, 64 FR 54994 (Oct. 8, 1999); development of additional evidence as
FR 3338 (Jan. 22, 1997). The Department 62 FR 3356–57 (Jan. 22, 1997). to the identity of the liable party. The
felt this need was critical and hoped to Significant Issues Raised by Public Department’s revised regulations
ensure that the resulting process for Comments in Response to Initial promote fairness and credibility in
determining a claimant’s eligibility was Regulatory Flexibility Analysis claims adjudications by providing each
both simple and equitable. For example, miner with a quality medical evaluation
The comments in response to the of his pulmonary condition when he
the Department had been widely Department’s initial regulatory
criticized for delays in the adjudication first applies, by explaining the
flexibility analysis fall into three Department’s initial assessment of that
process. In response, the Department categories: (1) Those comments urging
has made considerable changes in the evidence and by informing all parties of
the Department not to promulgate their rights to submit additional
initial processing of claims. The regulations having any adverse
Department’s revisions begin with the evidence and to request further
economic effect on the coal mining adjudication of the claim.
manner in which each miner who files industry, or on one or more segments of
an application for benefits is afforded a One comment suggests that ‘‘a
that industry; (2) comments contending reasonable interpretation of the
complete pulmonary evaluation, see 30 that the assumptions underlying the
U.S.C. 923(b). The Department’s Department’s own economic analysis
economic analysis on which the leads to the inescapable conclusion that
revisions will allow each miner to select Department’s initial regulatory
a highly qualified physician to perform the proposed rule will have a significant
flexibility analysis was based were economic impact on a substantial
his evaluation from a list of authorized flawed, and that the analysis thus
providers maintained by the number of small entities.’’ Rulemaking
underestimates the effect on small Record, Exhibit 89–37, p. 24. The
Department. See preamble discussion of businesses subject to regulation by the
§ 725.406, 64 FR 54988–90 (Oct. 8, Department does not disagree. 64 FR
rule; and (3) comments suggesting 55008 (Oct. 8, 1999). The Department
1999). The Department hopes thereby to regulatory alternatives that the
provide each claimant with a realistic recognized that the rule will have an
Department allegedly failed to consider economic impact on the coal mining
appraisal of his condition and to in its initial regulatory flexibility
provide each claim with a sound industry, and in particular on
analysis. The Department discusses
evidentiary basis. The regulations underground bituminous coal mine
those comments suggesting regulatory
governing the additional development operators that employ less than 20
alternatives below, in the section
and submission of evidence will ensure people. It is for this reason that in its
entitled ‘‘Description of Steps the
that the parties to a claim receive fewer second notice of proposed rulemaking,
Agency has taken to Minimize the
documents to which they need to file a the Department prepared an initial
Impact on Small Entities Consistent
response than was formerly the case. regulatory flexibility analysis in lieu of
with the Stated Objectives of Applicable
Thus, rather than issue initial findings its prior certification that the proposed
Statutes.’’ The Department responds to
and a memorandum of conference, rule would not have a significant
comments in the first two categories in
formerly provided for in the regulations economic impact on a substantial
this section.
(20 CFR 725.410, 725.411, 725.417 Several commenters argue that, in number of small entities. 64 FR 55006
(1999)), the district director will issue light of the costs identified by the (Oct. 8, 1999). The existence of an
only one decisional document at the Department in its initial regulatory economic impact, however, does not
conclusion of his processing: a proposed flexibility analysis, the Department mean that the Department is foreclosed
decision and order. See preamble should not promulgate any revised from promulgating its rule. In
discussion of §§ 725.410–725.413. In regulations. The Department disagrees. Associated Fisheries, the First Circuit
addition, the revised regulations will The regulations implementing the Black quoted with approval from the
allow the Department to generate Lung Benefits Act are badly in need of Commerce Department’s explanation of
documents that provide a clearer and revision to reflect more than two its responsibilities under the Regulatory
better reasoned explanation of any decades of judicial interpretation and Flexibility Act:
evidentiary evaluation made by the administrative experience. In addition, The intent of the RFA is not to limit
district director and a better the Department believes that the process regulations having adverse economic impacts
understanding by the parties of their used to determine a claimant’s on small entities, rather the intent is to have
rights and responsibilities. Thus, the eligibility for benefits, and an operator’s the agency focus special attention on the
impacts its proposed actions would have on
district director will issue a schedule for liability for those benefits, needs to be small entities, to disclose to the public which
the submission of additional evidence made faster, fairer, and more credible. alternatives it considered to lessen adverse
which explains his preliminary analysis No parties have benefitted from the impacts, to require the agency to consider
of the results of the miner’s complete delays that the courts of appeals have public comments on impacts and
alternatives, and to require the agency to underground rates for a four-state labor costs. Subtracting these 37 mines
state its reasons for not adopting an average of Pennsylvania, Kentucky, from the 263 very small underground
alternative having less of an adverse impact Virginia, and West Virginia. For mines leaves 226 mines. The mines are
on small entities.
anthracite coal, surface mine insurance located in Kentucky (81 mines), West
127 F.3d at 115–116. The Regulatory rates are only 44 percent of Virginia (71 mines), Virginia (52 mines),
Flexibility Act thus vests the underground mine insurance rates. Pennsylvania (14 mines), Tennessee (5
Department with the responsibility for Rulemaking Record, Exhibit 89–37, mines), and Alabama (3 mines). These
determining, in light of the recognized Appendix A, Table 4. Any increase in mines are extremely small, employing a
costs, whether the rule should insurance rates, then, assuming that all total of only 2,586 people. Median 1998
nevertheless be promulgated. other things are equal, will affect the employment per mine was 11; mean
The economic analysis performed in price per ton of underground coal twice employment was 11.4. Median
connection with the Department’s initial as much as it will the price of coal production was 25,957 short tons of
regulatory flexibility analysis described extracted from surface mines. This coal; mean production was 34,273 short
the costs that the rule would impose on distinction renders very small tons.
the coal mining industry. That analysis underground coal mines potentially The Department’s previous economic
was based on a number of conservative vulnerable to closures in a way that very analysis demonstrated that very small
assumptions that were designed to small surface coal mines are not. underground mines with first quartile
establish a cost ceiling, i.e., the Because the insurance rates for surface accounting profits (the one-quarter of
maximum additional costs that industry anthracite mines are also high, very these mines with lowest profits) might
would face as a result of these rules. For small anthracite strip mines may also be be forced to close as a result of the rule,
example, the analysis assumed that all potentially vulnerable to closure. but that mines with median accounting
coal mine operators purchase Additional data provided by profits were not in such jeopardy. For
commercial insurance. The Department commenters, as well as data that has purposes of estimating the potential
did not attempt, however, to estimate become available from the Department number of mine closures, however, the
precisely the number of mines which of Energy since publication of the Department will assume that as many as
would close as a result of these Department’s initial regulatory three-eighths of these mines (the half-
increased costs. Instead, the Department flexibility analysis, allow the way point between .25, representing the
concluded that there was only a Department to forecast the number of first quartile, and .5, representing the
significant potential for closures in the potential mine closures in somewhat second) are at risk. Multiplying this
very smallest size class of underground greater detail. This analysis confirms the figure (.375) by the total number of very
bituminous coal mine, those with under Department’s preliminary conclusion small underground bituminous mines
20 employees. Rulemaking Record, that, although the regulations will have (226) yields a total of 85 mines.
Exhibit 80, Exhibits O and Q. These a significant impact on some mines, the According to MSHA data, these 85
mines will feel the greatest effect of the impact on the mining industry as a underground bituminous mines
Department’s rule largely because of whole will not be substantial. The represent 5.3 percent of all producing
their operating characteristics. As a Department’s additional analysis bituminous coal mines, employed 1.3
group, very small coal mines are far therefore provides no basis to reconsider percent of the miners engaged in
more labor intensive (i.e., much less the decision to promulgate final bituminous coal mine employment, and
mechanized) than larger coal mines. regulations. accounted for 0.3 percent of bituminous
Because the rule will raise costs in the Mine Safety and Health coal production.
form of higher insurance premiums, Administration data are useful in MSHA data indicate that 117 mines
which in turn are based on each mine’s establishing the number of mines that produced anthracite in 1998. An
payroll, increased premiums will are potentially at risk of closure. The additional 87 anthracite mines are listed
represent a substantially higher cost Department emphasizes, however, that in the MSHA data but produced no coal
increase per ton of coal mined for a very this data addresses only the mines that during 1998. Of the 117 producing
small mine than for a larger mine. Thus, are potentially at risk of closure because mines, 60 were strip mines, 39 were
based on its preliminary economic of the Department’s rulemaking. The underground mines, and 18 were culm
analysis (Rulemaking Record, Exhibit actual effects of the rule can be bank/refuse pile operations. Of the 117
80, pp. 46–51), the Department found determined only by establishing the mines, 12 (10 strip mines, 1
that larger mines—including many ‘‘base case’’ of mines that could be underground mine, and 1 culm bank
mines that meet the definition of a expected to close even if the Department operation) had 20 or more employees,
‘‘small’’ business under the definition does not promulgate its final rule. In and only 3 had more than 50 employees.
used by the Small Business 1998, 1,609 mines produced bituminous An additional 6 mines (3 strip mines
Administration—would not face coal. An additional 743 bituminous and 3 culm bank operations) produced
significant impacts from the rule in mines are listed in the MSHA data but over 100,000 short tons in 1998. Culm
terms of closures. produced no coal during 1998. Of the bank operations and mines with 20 or
In addition to being more labor 1,609 producing mines, 791 were more employees or over 100,000 tons
intensive, very small underground underground mines, and 263 of the output do not appear to be at risk of
mines also incur the higher insurance underground mines had fewer than 20 closure. Culm banks are discussed in
premiums associated with underground employees. Of these 263 mines, 37 detail below in response to a comment
coal mining. Data contained in produced over 100,000 short tons of regarding the Department’s assumptions
comments received by the Department coal in 1998. Because mines with fewer about price elasticity. Thus, the
indicate that surface bituminous coal than 20 employees that produced over population of very small anthracite
mine insurance rates average $1.57, only 100,000 short tons have high labor mines consists of 85 mines. This total
59 percent of the average underground productivity, the Department does not includes 47 strip mines (60 total strip
mine insurance rate of $2.64. Similarly, believe that they will be significantly mines minus 10 strip mines with 20 or
surface mine rates average only 53 impacted by a rule whose primary more employees minus 3 strip mines
percent of underground rates for eastern effects are felt through increased that produced more than 100,000 short
bituminous mines; and 37 percent of insurance premiums that are based on tons of coal in 1998) and 38
underground mines (39 underground size, very small coal mines have equipped with tools such as computers.
mines minus 1 mine with 20 or more difficulty increasing productivity. They Such mines are in a poor position to
employees). These mines are extremely lack the physical scale to take advantage adapt to practices such as on-time
small. They had a total of 411 of new, high-productivity equipment, delivery or to utilize other risk
employees (220 in strip mines and 191 most of which is very large, or to adopt management techniques that utility
in underground mines). Median 1998 more productive techniques, such as deregulation is making increasingly
employment was 3; mean employment continuous miner operations or important in coal mine operation.
was 4.8. Median production of these longwall mining. Restricted space, of Independent very small coal mines are
anthracite mines was 4,500 short tons course, is a greater constraint in also, by virtue of their size, in a
(7,484 for strip mines and 2,598 for underground coal mines than surface relatively poor position to participate in
underground mines); mean production mines. strategic inter-fuel alliances, an
was 12,173 short tons (17,116 for strip Many very small coal mines are also increasingly common result of utility
mines and 6,060 for underground characterized by unfavorable geological deregulation.
mines). conditions. These may include thin coal Because of all of these market factors,
Profit data for anthracite mines are veins, splitting coal beds, fractures or the outlook for independent very small
not available. It appears reasonable to offsets due to faulting, interruptions in mines is extremely bleak. The
assume, however, that very small coal deposits or coal quality due to Department’s preliminary economic
anthracite strip mines will be sandstone-or clay-filled channels, and analysis, in fact, was based on the
potentially subject to closure because unstable roof rock. Such geologic observation that the base case already
their insurance premiums are high, and conditions may well be the reason the includes extensive closures of very
that very small underground anthracite mine is small to begin with. They also small mines. Over the last 15 or 20
mines will be even more heavily make it costly to extract coal and years, the market forces discussed above
impacted. The Department will difficult to improve productivity. Mines have eliminated a large majority of very
therefore assume that three-eighths of with such geological problems are small mines. Data collected by the
very small anthracite strip mines (the therefore especially vulnerable to price Energy Information Administration
same figure used for bituminous mines) competition. The economic suitability (EIA) indicate that in the 11 years
and five-eighths of very small anthracite of coal beds for mining is reflected in between 1986 and 1997 the number of
underground mines (a higher figure to changes in committed active reserves as coal mines with annual production of
take into account the possibility of a the price of coal changes. Culling less than 10,000 short tons decreased
heavier impact on these mines) are reserves to eliminate hard-to-mine
from 1,069 to 281 (a total of 74 percent),
potentially in jeopardy of closure reserves, or ‘‘high-grading’’ of reserve
while production of mines of this size
because of costs of the rule. Thus, an blocks, is a logical adaptation to low
decreased from 4.4 million short tons to
estimated 42 very small anthracite coal prices. From 1991 to 1996, as coal
1.2 million tons, or by 73 percent. In the
mines (18 strip mines (.375 times 47 prices fell, the reserves of small mines
same period, the number of coal mines
mines) and 24 underground mines (.625 (annual production of 10,000 to 100,000
with annual production of 10,000 to
times 38 mines)) are potentially in short tons) fell by 61.6 percent,
100,000 short tons decreased from 1,956
jeopardy of closing as a result of the compared with a 12.9 percent decline
to 638 (a 67 percent decrease), while
rule. for the coal mining industry as a whole.
The next step in forecasting the production of mines of this size
U.S. Department of Energy, Energy
number of mines that may close as a Information Administration, ‘‘The U.S. decreased from 82.8 million short tons
result of the rule is establishing the Coal Industry in the 1990’s: Low Prices to 27.8 million short tons, or by 66
‘‘base case,’’ i.e., the number of mines and Record Production,’’ (October, percent. EIA, U.S. Coal Industry, p. 3,
that would close regardless of whether 1999) p. 6 (hereafter, ‘‘U.S. Coal Table 1.
the Department promulgated new Industry’’). To estimate both baseline closures
regulations. This is particularly In addition, the shift in demand to and closures that may be considered
important for an industry such as coal low-sulfur western coal, which has impacts of the rule, two regression
mining, where the number of small occurred in response to the Clean Air models were created using EIA data for
mines has been declining for decades, Act Amendments of 1990 and the 1986 through 1998. Both used the log of
and where a continued sharp decline is resulting regulations of the the number of underground bituminous
likely in the foreseeable future. Only Environmental Protection Agency, puts coal mines with production in the range
after establishing the base case can the very small coal mines at a severe of 10,000 to 99,999 short tons. Both
Department estimate the extent to which disadvantage. Very small coal mines are models used the log of the national
the rule may result in additional concentrated in areas where coal has a price of coal as an independent variable,
closures. relatively high sulfur content. Low- and one also included time as an
The current and predicted decline in sulfur coal is found predominantly in independent variable. Both models had
the number of small coal mines is the the west, particularly in the Powder high statistical significance by any
result of a variety of market factors. River Basin. The large strip mines that measure. Using EIA projections of coal
They include electricity deregulation, produce low sulfur coal have easy price changes (see Department of
reduction in coal reserves, the use of on- geology (thin overburden and thick coal Energy, Energy Information
time delivery by coal company beds), and their large scale results in Administration, ‘‘Challenges of Electric
customers, equipment upgrades, labor productivity approximately three Power Industry Restructuring for Fuel
increased use of low sulfate coals, and times as high as that of eastern mines. Suppliers’’ (September 1998) (hereafter,
the reduction in the number of small This productivity differential continues ‘‘Challenges,’’), Table ES1, p. 13), the
mining firms due to industry to grow. Moreover, recent investments models were used to forecast the
consolidation over the last two decades. in track by western railroads are further percentage decrease in the number of
All of these factors put very small coal lowering the power-plant price of coal mines in the base case in the years
mines, particularly underground mines, Powder River Basin coal. 2005 and 2015, and the decreases that
in an increasingly disadvantageous Finally, many very small coal mines may result from the Department’s rule
competitive position. Because of their have management that may not be well during the same interval.
The log-log model with no time its rulemaking activity in order to Thus, each of the possibly affected
variable predicted a baseline decrease in determine the rule’s collateral effects, counties can expect to lose no more
underground bituminous mines of 32 i.e., the extent to which the mining than 6 jobs and have very little chance
percent from the year 1998 to the year industry will absorb the costs of of losing more than a dozen. Nearly half
2005 and a baseline decrease in compliance by reducing either (42 percent) of very small underground
underground bituminous mines of 61 employment or output. It is possible, bituminous coal mines are located in
percent from 1998 to 2015. Of the 85 however, to make a rough estimate of three counties (in three separate states).
bituminous mines identified as in these effects. The number of Of these counties, one can be expected
jeopardy of closure, therefore, this incremental closures of bituminous (as of 2005) to have one mine closure,
model forecast that 27 would close by mines due to the rule (rather than the and the other two less than one mine
2005 and 52 would close by 2015, even base case), was projected to be 6 mines closure each. A majority (65 percent) of
without the costs of the rule. When as of 2005 and 4 mines as of 2015. This anthracite underground and strip mines
costs of the rule for the very small class conclusion is consistent with the are located in one Pennsylvania county.
of mines was added, the predicted Department’s previous analysis, which This county can expect one mine
decreases in the number of mines were observed that the largest impact of the closure as a result of the rule, and the
39 percent (or 33 mines) between 1998 rule would be to close some mines other six counties with anthracite mines
and 2005 and 66 percent (or 56 mines) sooner than they would have closed in can expect one closure of a very small
between 1998 and 2015. Thus the model the base case. Estimated employment mine among them. Closure of one very
predicts that the costs of the rule would impacts related to closures would be 70 small anthracite mine would have an
result in the additional closure of 6 jobs as of 2005 and 45 jobs as of 2015. impact of approximately 5 jobs. Overall,
mines (33 mines minus 27 mines) as of Estimated production impacts related to then, only two counties are likely to
2005 but only 4 more mine closures (56 closures would be 208,880 short tons of experience community impacts as great
mines minus 52 mines) than the bituminous coal annually as of 2005 and as one very small mine closing in any
baseline as of 2015. 133,736 short tons as of 2015. Since the given year, and in neither of those
The model with a time variable mines which may close presumably counties is the impact likely to be
predicted much sharper baseline have relatively low productivity, the greater than two very small mines
decreases in the number of mines (43 overall effect would be to raise industry closing.
percent decrease by 2005 and 86 percent productivity. The estimated level of The nature of the rule also makes it
by 2015) and impacts of the rule of impacts—about one-eighth of the quite unlikely that there will be
about 0.4 mine closures by both years. baseline closure rate as of 2005 and one significant impacts on coal mine
It should also be noted that, because tenth the baseline closure rate as of employment or output beyond those
complete data were not available, 2015—is much too small to have a instances where mines close. The
neither model included mines meaningful impact on the competitive regulation has no direct effect on mining
producing less than 10,000 short tons, structure of the industry. operations. The principal effect of the
which have been closing at a faster rate The Department projected the number rule will be a very small increase in the
than the mines that were included in of incremental closures of anthracite cost of labor. This increased cost
the model. Thus, use of results from the mines due to the rule (rather than the provides an incentive to substitute
model without a time variable base case) to be 2.28 mines as of 2005 capital for labor, and to increase labor
represents a conservatively low choice and 1.38 mines as of 2015. Under this productivity and production generally
of estimate of baseline closures. projection, the estimated maximum to provide a broader base over which to
A similar procedure was used for employment loss related to closures spread the costs. This substitution, like
anthracite mines, with some would be 10 jobs as of 2005 and 7 jobs any other measure designed to increase
modifications. Separate models were as of 2015. This projected job loss labor productivity, will enhance rather
estimated for underground mines and assumes that no additional jobs are than restrict improvements in
strip mines, but total mines were used created elsewhere in the anthracite productivity. The Department’s analysis
for the dependent variable. The log-log industry. Estimated production loss already demonstrates a strong trend of
form without a time variable is reported. related to closures would be 14,564 increasing productivity in the coal
For the 24 at-risk underground short tons of bituminous coal annually mining industry, and any impacts of the
anthracite mines, the model forecasts a as of 2005 and 11,058 short tons as of rule will simply reinforce this trend.
base-case decrease in the number of 2015. Since the mines which may close In addition, recent history and
mines of 21 percent as of 2005 (5 mines) presumably have relatively low available forecasts indicate that the use
and 43 percent as of 2015 (10 mines). productivity, the overall effect would be of coal in generating electricity will
Considering the additional costs to raise industry productivity. Closure continue to increase. Any price pass-
imposed by the rule, the forecasts were of 1 or 2 mines is not expected to have through will be small because the costs
decreases of 29 percent as of 2005 (1.92 a meaningful impact on the competitive of the rule are (for the industry as a
additional mines) and 48 percent as of structure of the industry. whole) not significant. There is no other
2015 (1.2 additional mines). For the 18 It is also possible to assess the impact plausible mechanism (except for closure
at-risk surface anthracite mines, the of the rule on mining communities of mines) by which the rule could
model forecasts a base-case decrease in using the counties in which such induce reductions in production.
the number of mines of 8 percent as of operations are located. Very small Enhancement of productivity, for which
2005 (1 mine) and 20 percent as of 2015 underground bituminous coal mines are there are incentives, will tend to
(4 mines). Considering the additional found in 46 counties. If closures are increase production. Thus, aside from
costs imposed by the rule, the forecasts randomly distributed, 22 of these mine closures, the rule will not have
were decreases of 10 percent as of 2005 counties have less than a 5 percent adverse impacts on coal production.
(.36 additional mines) and 21 percent as chance of any mine closure, 13 more Finally, there is a slight possibility
of 2015 (.18 additional mines). have less than a 20 percent chance, 5 that the rule may result in a decreased
The Regulatory Flexibility Act does more have less than a 30 percent workforce in mines that continue to
not require the Department to chance, and 3 more have less than a 50 operate. The principal mechanism for
extrapolate its projection of the cost of percent chance of any mine closing. such an impact is the incentive to
substitute capital for labor. A number of As an initial matter, the M&R analysis Fourth, Sixth, Seventh, Eighth, and
factors, however, make any such impact criticizes the assumption in the Eleventh Circuits). These courts
minimal in its significance. Because the Department’s economic analysis that the recognize that pneumoconiosis, as it is
costs of the rule are generally not approval rate for claims paid by defined in the Act and was defined in
significant, the incentive itself will be responsible operators and their insurers the prior regulations, includes
quite small. Increases in production will under the revised regulations will not obstructive lung disease arising from
tend to mitigate job loss. By itself, any exceed the approval rate for claims paid coal mine dust exposure. Similarly, in
impact of the rule on employment is by the Black Lung Disability Trust Fund the preamble to § 725.309, the
almost certainly small enough to be under the former regulations. The Department has cited 44 decisions from
handled by attrition in an industry with Department’s economic analysis had seven federal appellate courts (the six
an annual labor turnover rate of assumed that the overall approval rate listed above plus the Tenth Circuit).
approximately 7 percent. Because the for responsible operator claims These courts recognize the progressive,
base case trend toward labor saving (currently 7.33 percent) would not latent nature of pneumoconiosis. All of
innovation in the coal mining industry exceed 12.18 percent, the overall these decisions reflect longstanding
is so strong, any adverse effect on approval rate for Trust Fund claims. positions of the Department. Because of
employment will be a temporary Rulemaking Record, Exhibit 80, p. 38. these positions, the Department has not
acceleration of job loss, rather than a net The M&R analysis states that ‘‘DOL has attempted to deny claims because the
long-term impact. Moreover, in the offered no support for this assertion.’’ miner’s disabling lung disease was
current strong employment market, any M&R at p. 17, see also Rulemaking obstructive in nature, provided that
unemployment effects will generally be Record, Exhibit 89–37, pp. 31–32. condition was shown to have arisen out
transitory, so that their significance will The Department’s analysis explicitly of coal mine employment, or because
be minimal. For these reasons, aside stated, however, that ‘‘[t]he proposed the miner’s condition was alleged to
from mine closures, the rule will not regulations represent the Department’s have progressed. The Department,
have significant adverse impacts on past and current practice in Trust Fund therefore, does not expect that any
employment. cases,’’ and that ‘‘several factors make additional Trust Fund claims will be
The Department’s initial regulatory the Trust Fund approval rate approved as a result of the revised
flexibility analysis, as supplemented by substantially higher than the definition of pneumoconiosis. Similarly,
the additional study undertaken in the responsible operator approval rate.’’ there is simply no reason to believe that
Exhibit 80 at p. 38. These factors the revised definition of
final regulatory flexibility analysis,
include the age of applicants whose pneumoconiosis will result in a higher
demonstrates that the Department’s final
claims are payable by the Trust Fund approval rate in responsible operator
rule is being promulgated following
and the fact that most of their exposure claims than in Trust Fund claims.
examination of the potential effects of
to coal mine dust predated the 1969
the rule on small coal mine operators. The same commenter states that the
federal dust standards. Thus, the
The Regulatory Flexibility Act does not limitation on documentary medical
Department believes that the approval
dictate substantive results, or prevent evidence tilts the playing field toward
rate for Trust Fund cases will remain
the Department from acting in such a claimants by allowing a claimant three
the same, and that the approval rate for
case. See A.M.L. International, Inc. v. examinations (his choice of an approved
responsible operator cases will rise, but
Daley, 107 F. Supp. 2d 90, 105 (D. Mass. not to the level of Trust Fund approvals. physician to conduct the complete
2000) (‘‘The intent of the RFA is not to The Department’s assumption is based pulmonary evaluation plus two more) as
limit regulations having adverse on its more than 15 years’ experience in opposed to the operator’s two
economic impacts on small entities.’’). adjudicating claims for black lung examinations. The commenter argues
Because the Department believes that a benefits under the prior regulations, and that this evidentiary imbalance will
revision of the regulations its detailed knowledge of the increase the number of approved claims
implementing the Black Lung Benefits evidentiary showings required for those payable by responsible operators.
Act is long overdue, the Department has claims’ approval. Rulemaking Record, Exhibit 89–37, p.
decided to proceed with this final rule. The National Mining Association, 29. Again, however, the Department’s
The Department also received whose comment incorporates the M&R Trust Fund experience forms a
comments on its economic analysis. In analysis, suggests that the Department’s reasonable upper bound of the approval
its initial regulatory flexibility analysis, revised definition of the term rate expected under the revised
the Department specifically invited ‘‘pneumoconiosis’’ represents a regulations. That experience
comment on the assumptions used in considerable departure from past demonstrates that the Department
developing its economic analysis, practice. Specifically, the commenter seldom develops more than two medical
including the relationship between takes issue with the Department’s reports in any individual claim for
increases in the claims approval rate preliminary economic analysis which which the Trust Fund is liable. In
and increases in insurance premiums; refused to assign costs to the amended addition, claimants under the former
the relationship between increased definition of pneumoconiosis because regulations had the ability to choose any
medical costs and increases in inclusion of chronic obstructive physician to conduct their initial
insurance premiums; and the extent to pulmonary disease arising from coal evaluation, 20 CFR 725.406(a) (1999),
which promulgation of these revisions mine employment as pneumoconiosis subject only to a district director’s
will result in an increase in the number simply clarified the regulation and approval, which was seldom refused.
of claims filed. 64 FR 55008 (Oct. 8, made it consistent with past practice. Claimants generally submitted no more
1999). One of the comments received by Rulemaking Record, Exhibit 89–37 at than one additional medical report in
the Department, whose conclusions 29; Rulemaking Record, Exhibit 80 at support of their applications. Thus,
were endorsed by a number of other 29. In the preamble to § 718.201, the once again, the rate of Trust Fund
commenters, contained an economic Department has cited 14 decisions from awards forms a reasonable upper
analysis by Milliman & Robertson, Inc. six federal appellate courts with boundary of the approval rate expected
(M&R). Rulemaking Record, Exhibit 89– jurisdiction over the vast majority of in responsible operator cases under the
37, Appendix A. claims filed under the Act (the Third, revised regulations.
Finally, the commenter argues that of approved claims, Transcript, Hearing as a benefit of the revisions. In addition,
the provision requiring that ‘‘controlling on Proposed Changes to the Black Lung the insurance rates used by M&R, M&R
weight’’ be given to the opinion of a Program Regulations (July 22, 1997), p. at p. 6, Table 4, whose source is not
treating physician will result in 106 (testimony of Robert Briscoe), it identified, are generally lower than the
‘‘numerous’’ claims being approved that excludes denied claims filed by such rates used by the Department by about
previously would have been denied. miners from the total number of filed one percentage point (i.e., by $1.00 per
The Department does not accept this claims. In its prior analysis, M&R stated $100 of payroll). Because the
assessment. The revisions to § 718.104 that this exclusion was justified because Department’s analysis of the rule’s cost
require only that an adjudication officer claims filed by miners with less than 10 was based on a percentage increase of
evaluate certain criteria to determine years of coal mine employment will not existing rates, use of the M&R figures
whether a treating physician may have be ‘‘present in the population of coal would result in a substantially lower
developed an in-depth knowledge of the miners recently leaving the coal estimate of total dollar costs. The
miner’s pulmonary condition. As the workforce.’’ Rulemaking Record, Exhibit substantial difference between the
Department has repeatedly emphasized, 5–160, Appendix 5, p. 28. The Department’s analysis of insurance rate
the regulation does not require that the Department’s database of claim filing increases and M&R’s prediction derives
adjudication officer credit the opinion information, however, does not support primarily from different assumptions
of the treating physician where there is the inference that this group should not about the approval rate for claims filed
contrary evidence in the record. To the be counted in determining the approval after the regulations go into effect.
contrary, the rule is designed to force a rate for claims that are being filed Because the Department does not
careful and thorough assessment of the currently. Indeed, throughout the last believe that the approval rate for
treatment relationship. 64 FR 54976–77 decade, claims filed by miners with less responsible operator claims will exceed
(Oct. 8, 1999); see also preamble to than 10 years of coal mine employment the approval rate for Trust Fund claims,
§ 718.104, paragraph (f). Accordingly, have represented approximately one- the Department does not believe that
the Department does not agree that this quarter of the total number of M&R’s predictions concerning insurance
revision will result in the approval of responsible operator claims. Because rates are accurate. In any event,
‘‘numerous’’ additional claims. The these claims continue to represent a insurance rate increases are subject to
Department stands by its assumption in significant number of responsible approval by state authorities.
the initial regulatory flexibility analysis operator claims, the Department The Department also requested
that any increase in the approval rate of believes that both approved and denied comment on a possible increase in the
claims due to this regulation will be claims from this group should be number of claims filed as a result of this
‘‘very small.’’ Exhibit 80 at p. 34. The counted. Accordingly, the Department regulatory revision. The Department’s
Department reiterates that ‘‘[i]t is does not agree that its approval rate economic analysis was based on the
difficult to see how this provision must be ‘‘corrected’’ by excluding these assumption that, although the revisions
would lead to an increase in approval of claims. will not produce a significantly greater
weak or non-meritorious claims.’’ The M&R analysis also exaggerates the number of approved claims,
Exhibit 80 at p. 27. The commenter’s effect of the Department’s rule on expectations created by the mere
assertions have thus failed to undermine insurance rates. M&R criticizes the issuance of regulatory revisions will
the Department’s assumption that the Department because its analysis ‘‘fails to cause a temporary increase in the
approval rate for Trust Fund claims test the current federal black lung number of claims filed, an additional
represents an appropriate upper bound insurance rates being charged to 3,440 responsible operator claims over a
for estimating the approval rate determine if they are a reasonable base two-year period. Rulemaking Record,
applicable to operator claims under the from which to project future cost Exhibit 80, pp. 39, 42. The M&R
revised regulations. changes * * *.’’ M&R at p. 2. M&R analysis did not specifically address this
The M&R analysis also arrives at a suggests, for example, that the rate in assumption. Instead, the M&R analysis
higher overall approval rate for Trust Kentucky is ‘‘too low,’’ M&R at p. 7, and is simply based on its own, wholly
Fund claims (20 percent rather than concludes that the corrected rate for different assumption regarding the
12.18 percent) by analyzing Trust Fund underground bituminous mines, when number of claims that are likely to be
claims involving only post-1981 coal combined with the effects of the filed once the revised regulations take
mine employment and by eliminating Department’s regulatory revision, will effect. M&R posits that ‘‘the application
claims filed by individuals with less increase premiums by at least 1,075 of the reproposed regulations to the
than 10 years of coal mine employment. percent. M&R at p. 8, Table 6. The large number of denied claims from all
M&R at p. 17 n. 41. The Department impact of the Department’s regulatory past years will in effect rewrite the
does not agree that manipulating the revision, however, does not include the history of approvals.’’ M&R, p. 21. M&R
data in this fashion produces a more correction of inadequate rates; such uses an actuarial model to estimate the
accurate result. First, responsible correction must be factored in ‘‘number of ultimate claim filings that
operators are also liable for claims independently, not assigned as a cost of are likely to be received’’ under the
involving pre-1982 coal mine the regulations. Moreover, M&R states former regulations and under the newly
employment, so it is appropriate to that the premiums in the three other revised regulations. M&R, p. 21. From
include that group. Second, exclusion of large Eastern coal states (Pennsylvania, the data provided in Table 12 of the
all claims based on less than 10 years of Virginia, and West Virginia) are M&R analysis, it appears that M&R
coal mine employment clearly will not ‘‘redundant’’ (and rates are ‘‘generally estimates that 2,567 additional claims
create a true picture of the overall redundant in the other 23 coal mining will be filed by miners whose last coal
claims experience. A number of miners states), suggesting that insurance mine employment was during the years
who are employed in the mines for less companies (or in West Virginia’s case, 1982 to 1999. However, the Department
than 10 years ultimately are determined its state-administered fund) are making was unable to determine what
to be eligible for benefits. Although the excess profits from these markets. M&R assumptions M&R made to generate this
M&R analysis includes claims filed by at p. 7. In this case, correcting estimate. In any case, M&R’s estimate
such miners in determining the number redundant rates should not be assigned cannot be compared with the
Department’s, because M&R excludes case, then, as the Department’s initial considerable opportunities for passing
claimants with less than 10 years of coal analysis indicated, the firm will not fail costs to consumers.
mine employment. The Department even given the economic impact of the Available information indicates that
believes that it is not necessary to regulations. See Rulemaking Record, most of the downward pressure on coal
change the methodology used in the Exhibit 80, Exhibit P. prices is flowing from developments
initial regulatory flexibility analysis to The Department’s analysis, moreover, within the coal industry and intra-
estimate the likely increase in claims is based on the assumption that coal industry competition. Coal producers as
resulting from the revised regulations. mine operators (other than culm-bank a whole have increased their
The Department also received operations, discussed below) will be productivity and lowered their costs.
comments disputing its assumption that unable to pass through any of the costs Cost reduction has resulted from
coal mine operators could pass on to associated with the Department’s rule. improved management of mining
coal consumers by price increases the That assumption is based on a worst- operations and delivery, introduction of
increased costs caused by the case scenario for analytical purposes, new technology (e.g., longwall mining),
Department’s rule. Rulemaking Record, and it does not necessarily reflect the investment in more productive
Exhibit 80, p. 52. The Department agrees current state of the energy industry. equipment, consolidation to achieve
that it is difficult to determine with Although the recent deregulation of economies of scale, closure of high-cost
precision the ability of small coal mine electric utilities has led to considerable mines, and takeover and restructuring of
operators to pass on costs to coal reorganization, the use of coal is both high cost mines to operate them more
consumers. Indeed, the Department extensive and increasing. In general, economically. The EIA has observed
acknowledged in its initial economic electric utilities currently are taking that ‘‘the relationship between coal
analysis that some small coal mine advantage of the opportunities prices and productivity gains is circular:
operators would be unable to pass on presented by deregulation to deal with Productivity gains allow coal prices to
these costs, and that this inability might expanding demand by management, be lowered and price declines induce
represent the difference between being rather than by making major actions by coal producers that raise
able to continue mining operations and investments in new generating capacity. productivity and cut costs’ (EIA,
suspending them. Interpreting current In this environment, natural gas and oil ‘‘Challenges,’’ Chapter 1, p. I–12). The
profit rates that are unsustainably low or are attractive, in part, because they are problem that small coal mines face is
negative, however, must be done used to meet on-peak demand for that they are less able than large mines
carefully, because there are two distinct electricity. As a result, most generation to implement such productivity
types of firms that may have such profit capacity, now in use and currently enhancing measures. As a result, small
rates at any one point in time. Some planned, is gas-fired. The relatively low inefficient coal mine operators are being
firms may have such rates for a short capital cost of gas- or oil-fired squeezed by larger more efficient mine
time, because of industry cycles or the generation capacity (despite the operators.
firm’s unique circumstances. These relatively high fuel cost) makes these Rapidly increasing productivity,
firms will rebound and may or may not fuels cost-effective for the low capacity however, does not preclude the coal
experience significant impacts from a utilization associated with on-peak industry as a whole from increasing its
regulation. Other firms will have power production. Coal, however, is the prices in the short run to recoup
negative profits because they are already mainstay of off-peak, baseline electricity regulatory compliance costs. These costs
in the process of failing. generation. The different use pattern is are small. Based on West Virginia
These two cases have very different reflected by different capacity insurance rates, the increase in
implications in the analysis of the utilization rates. In 1996, for example, insurance rates would translate into a
economic impact of the Department’s capacity utilization was 63 percent for one-time increase in labor costs of 1.2
revisions. If a firm is in the process of coal-fired power plants but only 20 percent a year. By contrast, labor
failing in any event, the impact of the percent for natural gas power plants and productivity (tons per miner hour)
revised regulations will be small or non- 11 percent for oil-fired plants. (EIA, increased by an average of 6.9 percent
existent. At most, the impact will hasten ‘‘Challenges,’’ Chapter 1, p. I–4). In each year from 1980 to 1996 (EIA,
the firm’s failure by a short period of baseline power generation, coal faces ‘‘Challenges,’’ Chapter 1, p. I–12). This
time. Neither the failure itself, however, less competitive pressure and more annual productivity increase—five or
nor any loss of jobs, should be opportunities for investment in new six times as large as the estimated
considered an impact of the regulations. capacity. Run-of-stream hydroelectric impact of the regulation—would allow
If a firm is about to rebound, the power is limited, as is the potential for the coal industry to pass through costs
situation is considerably more its expansion. Nuclear generation of the rule without raising prices at all.
complicated. The issue is whether the capacity is declining because old plants Only a small one-time diminution in the
firm will rebound to the level that it can are coming off line, and no new ones are reduction of the price of coal would be
absorb the economic impact. It is being built. As a consequence, utilities needed.
perfectly correct in such cases to say, as are burning more coal—not less—and It is true that small mines cannot
one commenter points out, that this trend is expected to continue. increase prices beyond those of larger
‘‘additional costs imposed by It is certainly true that long-term high- counterparts and stay competitive. The
regulations are certainly relevant since price contracts for coal are giving way analysis of relative impacts indicates
the added cost of regulations will make to shorter term contracts with more that very small, underground coal mines
it that much more difficult for the firm flexibility. Yet even here there are may be able to pass through one quarter
to achieve profitability.’’ Rulemaking mitigating factors. Only about half of to one half of their costs of the rule to
Record, Exhibit 89–37, p. 33. The current contracts will expire by 2005. consumers under the cover of larger
problem is that it is extremely difficult The impetus for the shift away from mines passing all of their costs of the
to predict from a negative profit rate long-term contracts was stimulated by rule through to consumers. The
how far a firm may rebound. One stabilization of other fuel prices at Department’s preliminary economic
reasonable assumption (given the very moderate levels, but quite recently oil analysis treated pass-through of costs of
limited data) is that a rebounding firm prices have shot up again. The point is the rule essentially as a factor that could
will achieve median profits. If that is the that the current market still offers mitigate to some extent—not prevent—
impacts on profits. See Rulemaking anthracite with a degree of product the costs imposed by the Black Lung
Record, Exhibit 80, pp. 52–56. For the differentiation that bituminous coal Benefits Act, the Department’s initial
reasons outlined above, the Department does not have. The economic forces in regulatory flexibility analysis fulfilled
continues to believe that this is the case. the anthracite mining industry are the requirements of the RFA by
Because of the difficulty of quantifying significantly different from those in the identifying a potential impact on the
these effects, however, the quantitative bituminous coal mining industry. In coal mine contracting industry.
analysis will continue to assume zero anthracite, there are no large mines, no Thus, the Department does not
cost pass-through. The uncertainty as to high-productivity mines, and generally believe the comments undermine the
the extent to which costs can be passed not the geological conditions that are validity of its initial regulatory
through does not mean that the favorable to large-scale equipment or flexibility analysis, or of the economic
Department is unable to estimate techniques that would allow increases analysis that the Department used in
impacts, however. Rather, the in productivity. Instead of a steady preparing it. Both analyses describe the
assumptions that the analysis made to increase in output, anthracite impact that the revised regulations are
deal with the uncertainty result in production (exclusive of culm banks) likely to have on small coal mine
estimates of impacts on profits and fell by 19 percent between 1986 and operators, and both analyses
closures that are known to be biased 1997. Together with the rise of acknowledge that this impact may be
upward—as is appropriate for a anthracite salvage operations, this sufficient to make the mining of coal
conservative analysis of impacts. decline appears to reflect exhaustion of uneconomical for some. 64 FR 55008–09
The market for anthracite coal is anthracite deposits that can be mined (Oct. 8, 1999); Rulemaking Record,
significantly more sheltered from price economically, rather than the sort of Exhibit 80, pp. 44–46, 52. The
competition than the market for fierce competition characterized by Department’s proposal, and its
bituminous coal. Since 1996, a majority highly elastic demand. discussion of possible alternatives
of anthracite production has been One comment argues that the intended to mitigate the impact of the
accounted for by culm bank operations. Department’s initial regulatory proposal on small businesses, were
These operations salvage previously- flexibility analysis did not properly made with full knowledge of the
mined anthracite from old mine tailings analyze the effect of its rule on coal projected economic impact.
on the surface. The market for these mine construction and transportation Accordingly, although the Department
operations (and potentially for other contractors, as well as on other small has committed to the revision of the Part
anthracite mines) is nearby power businesses performing services at mine 722 regulations, see discussion of
plants. Most of these plants are sites. The Department acknowledged alternatives, below, and preamble to
cogeneration plants, which produce that its rule would have an effect on Part 722, the Department has not altered
heat or steam for industrial use as their entities in the ‘‘Coal Mining Services’’ its proposal in response to any of the
principal output, and then generate industry, and estimated that of 275 comments it received in response to the
electric power as a byproduct. Some, firms listed in data available from the initial regulatory flexibility analysis.
however, are small power plants built Small Business Administration, no more
Small Businesses to Which the Rule
solely to use anthracite from culm than 209 were small businesses within
Will Apply
banks. The Public Utility Regulatory the SBA’s definition (less than $5
Policies Act of 1978, Pub. L. 95–617, 92 million in annual receipts). The The revised regulations implementing
Stat. 3117(1978), requires electric Department recognized, however, that the Black Lung Benefits Act will apply,
utilities to purchase electric energy from this number might understate the like the Act itself, to coal mine
cogeneration facilities and other number of coal mine construction and operators. See, e.g., 30 U.S.C. 932(b)
qualifying small power production coal transportation companies. 64 FR (‘‘each such operator shall be liable for
facilities. The Act goes on to stipulate 55008 (Oct. 8, 1999). and shall secure the payment of benefits
that the price at which utilities purchase The RFA does not require, however, * * * ’’). The term ‘‘operator’’ includes
electric energy may not exceed ‘‘the that the Department determine precisely not only traditional coal mining
incremental cost to the electric utility of the economic effect on small businesses companies, but also employers who
alternative electric energy.’’ 16 U.S.C. where it is not feasible to do so. Instead, provide services to such companies,
824a–3(b). Since most of the electricity it requires only that the initial including coal mine construction and
generated with the anthracite is a regulatory flexibility analysis ‘‘describe coal transportation companies. 30
byproduct of steam and heat produced the impact of the rule on small entities.’’ U.S.C. 802(d). In the initial regulatory
for other purposes and the capacity is 5 U.S.C. 603(a). The Department’s initial flexibility analysis published in its
already installed, the incremental cost regulatory flexibility analysis described second notice of proposed rulemaking,
of power to utilities is virtually certain the impact of its proposed regulations the Department observed that the
to provide sufficient revenue to make based on an economic analysis. The Regulatory Flexibility Act requires an
these anthracite operations economic analysis projected an increase administrative agency to use the
economically viable, despite the costs of in the approval rate of black lung claims definition of a ‘‘small business’’
the rule. If anything, anthracite from payable by responsible operators and a promulgated by the Small Business
culm banks is likely to become more temporary increase in the number of Administration unless the agency, after
competitive as the prices of other fuels claims filed. To the extent that coal consulting with the SBA’s Office of
used to generate electricity rise. Indeed, mine contractors obtain insurance to Advocacy and providing an opportunity
anthracite culm banks are the only part spread the risk of potential liability for public comment, establishes its own
of the coal mining industry in which under the Act, the Department’s initial definition. 5 U.S.C. 601(3). (The
both the number of very small regulatory flexibility analysis of the Department’s regulations do not apply
operations and the number of resulting increase in insurance to any small organizations or small
employees have expanded substantially premiums was also relevant to those governmental jurisdictions; accordingly,
over the last 10 to 15 years. entities. In the absence of a more precise the Department’s analysis is limited to
The broader market for anthracite estimate of the number of entities small businesses.) The Department
includes metallurgical uses and other involved, however, and the manner in therefore announced its intention to use
specialty markets. This provides which those entities currently absorb the SBA definition, which establishes
criteria for different industries, arranged also projected an increase in the finding denying their claims. Under the
by the Standard Industrial Codes (SICs) potential exposure of operators who are final rule, a coal mine operator may not
used by the Bureau of the Census. SBA’s authorized to self-insure their liability know whether the claimant is interested
regulations define a small business in under the Act. A summary of these in pursuing his claim (unless the
the coal mining industry (SIC Codes additional costs was published in the claimant withdraws his application
1220, 1221, 1222, 1230, and 1231) as Department’s initial regulatory under § 725.306) until after that operator
one with fewer than 500 employees. A flexibility analysis. 64 FR 55008–09 has developed its responsible operator
small business in the coal mining (Oct. 8, 1999). In addition, the evidence.
services industry (SIC Codes 1240 and Department observed that coal mine The Department believes that the
1241) is one with less than $5 million operators that did not purchase costs resulting from this revision will
in annual receipts. 64 FR 55007–08 insurance, either because they were self- have only a minor impact on its
(Oct. 8, 1999). insured, or because they were not previous estimate of the costs of the
Based on 1995 data, the Department required to secure benefits, or because rule. As an initial matter, the
determined that of 2,822 establishments they had ignored the Act’s security Department estimates that this revision
in the coal mining industry, 2,811 requirement, would face additional will affect less than 10 percent of all
employed less than 500 people. Of burdens. These burdens included responsible operator cases. In FY 1999,
those, 1,581 were surface bituminous responding more promptly to notice a total of 5,724 cases were filed. The
mining companies, 1009 were from the Department that a claim had Department estimates that just over 75
underground bituminous mining been filed by one of their former percent of these claims, or 4,293, were
companies, and 221 were anthracite employees, and posting security in the claims involving potential responsible
mining companies. The Department event that they were held liable for the operator liability. Ten percent of this
estimated that no more than 209 of the payment of benefits on an individual number is 429. The Department’s
275 firms in the coal mining services claim. Operators that had been economic analysis assumed that an
industry would be considered small authorized to self-insure their liability additional 1,720 operator cases will be
businesses. The Department observed, under the Act would be required to filed each year for two years following
however, that its estimate did not maintain security for claims filed issuance of the Department’s final rules.
necessarily include all coal mine against them, even after they ceased Ten percent of this number is 172. In
construction and coal transportation mining coal. Finally, the Department each of the next two years, then, the
companies, and that the precise number observed that the regulatory revisions
of such businesses could not be revision will cause the additional
enhanced its ability to enforce civil development of responsible operator
estimated with precision. 64 FR 55007– money penalties against operators that
08 (Oct. 8, 1999). evidence in only 601 claims. Under the
failed to comply with the Act’s security proposed rule in the Department’s
More recent data available from the
requirements. 64 FR 55008–09 (Oct. 8, second notice, however, operators
Mine Safety and Health Administration
1999). would also have had to develop such
suggest that the composition of the coal
industry has not changed significantly. The regulatory revisions in the evidence in the 30 percent of such cases
In 1997, 2,568 of 2,578 establishments Department’s final rule do not that proceed beyond adjudication by the
in the coal mining industry employed significantly change the costs identified district director. Consequently, the
less than 500 people. Of these, 1,441 by the Department’s initial regulatory Department’s final rule will require
were surface bituminous mining flexibility analysis. Specifically, only additional evidentiary development in
companies, 913 were underground one of the changes that the Department only the remaining 70 percent of cases,
bituminous mining companies, and 214 has adopted in this final rule in or 421 cases. The Department has no
were anthracite mining companies. response to public comments has cost way of accurately estimating the costs of
Census figures available from the Small implications. The Department has developing such evidence. However, a
Business Administration do not allow eliminated the notice of initial finding, rough estimate can be made using
the Department to calculate how many a document that the Department information in M&R’s first analysis.
of the 317 firms in the coal mining currently uses to deny claims informally M&R estimated that the total cost to
services industry would be considered before the district director. Both the first operators in defending claims that were
small businesses, because those figures and second notices of proposed resolved at the district director level
do not contain sufficient information on rulemaking proposed the continued use was approximately $3,000. Rulemaking
the revenues of those firms. of this document. Eliminating issuance Record, Exhibit 5–160, Appendix 5, p.
of initial findings will decrease operator 24. This figure included not only the
Projected Reporting, Recordkeeping, costs in all cases by reducing the development of responsible operator
and Other Compliance Requirements of numbers of responses that coal mine evidence but, under the Department’s
the Rule operators have to file with the first proposal (to which M&R was
In its initial regulatory flexibility Department. Eliminating this document, responding), of all medical evidence as
analysis, the Department observed that however, will also require that coal well. Although the cost of developing
its proposed revisions would not mine operators undertake the medical evidence is typically much
impose any additional reporting or development of responsible operator higher than the cost of operator
recordkeeping requirements on small evidence (evidence showing that evidence, because it involves payments
businesses. The Department stated that another entity that employed the miner to expert witnesses, the Department will
the compliance requirements of the rule should be the responsible operator) in a assume that half of these defense costs
were largely economic in impact. The number of additional cases. Under the represent the cost of developing
Department projected its regulatory Department’s second notice of proposed responsible operator evidence.
revisions would increase the cost of rulemaking, coal mine operators would Accordingly, the total additional costs
commercial insurance (through not have been required to develop imposed by this revision are not likely
increased premiums) purchased by coal responsible operator evidence in cases to exceed $631,050 (70 percent of 601
mine operators to secure their benefits in which the claimant failed to respond claims times $1,500) in each of the first
liability under the Act. The Department to the Department’s notice of initial two years, and will drop to no more
than $450,450 (70 percent of 429 claims S. Rep. 95–209, 95th Cong., 1st Sess. 9 that might reduce the impact of the rule.
times $1,500) for each year thereafter. In (1977), reprinted in House Comm. On See 5 U.S.C. 609(a).
light of the point estimate of $57.56 Educ. And Labor, 96th Cong., Black The National Mining Association
million in annual costs identified by the Lung Benefits Reform Act and Black (NMA), endorsed by a number of other
Department’s economic analysis of the Lung Benefits Revenue Act of 1977, 612 commenters, has identified six
proposed rule, these additional costs are (Comm. Print). alternatives that it believes the
not significant. In any event, these In its initial regulatory flexibility Department should have considered: (1)
additional costs will be at least partially analysis, the Department observed that establish a fund to insure coal mine
offset by the savings realized in all cases these two principles severely operators for federal black lung claims
from the reduced number of required constrained its ability to select on a first dollar basis under the
operator responses. In addition, the alternatives that the Department had authority granted the Department by 30
Department’s decision to permit the identified as potentially providing relief U.S.C. 943; (2) establish a fund to
district director to refer a case to the for small coal mine operators. The reinsure coal mine operators for federal
Office of Administrative Law Judges Department discussed several black lung claims on a specific or
with no more than one operator as a alternatives, including adjusting a aggregate of loss basis, also under the
party to the claim will result in miner’s entitlement criteria according to authority granted the Department by 30
additional savings to coal mine the size of the operator that would be U.S.C. 943; (3) name only the most
operators in some cases. considered the responsible operator likely responsible operator; (4) establish
under the Department’s regulations. A criteria to determine when a state black
Description of Steps the Agency has lung program is sufficient to end the
Taken to Minimize the Impact on Small second alternative would have limited
the liability of certain employers. These federal program in that state; (5) allow
Entities Consistent With the Stated settlement of federal black lung claims;
Objectives of Applicable Statutes; employers might include those that met
either the SBA definition of a small and (6) establish cost-containment
Discussion of Alternatives mechanisms for health care providers.
business (over 90 percent of the
The primary objective of the Black industry) or those employers with fewer Rulemaking Record, Exhibit 89–37, p.
Lung Benefits Act is set forth in § 901 than 20 employees, companies that the 31. The M&R analysis similarly suggests
of the Act: Department’s economic analysis had the first four alternatives, although it
It is, therefore, the purpose of this identified as most vulnerable. In such would apply the third alternative
subchapter to provide benefits, in (naming the most likely operator) only
cases, the Department considered
cooperation with the States, to coal miners where that operator is a small coal mine
imposing liability on larger operators or
who are totally disabled due to operator. In addition, the M&R analysis
on the Black Lung Disability Trust
pneumoconiosis and to the surviving suggests that the Department establish a
dependents of miners whose death was due Fund. The Department rejected both
formal, ongoing review of state workers’
to such disease; and to ensure that in the alternatives, however, as contrary to the
compensation programs to determine
future adequate benefits are provided to coal intent of Congress as expressed in the
whether they are sufficient to permit the
miners and their dependents in the event of Black Lung Benefits Act. 64 FR 55009
their death or total disability due to
Secretary to declare the federal program
(Oct. 8, 1999). The Department did
pneumoconiosis. inapplicable to miners in particular
provide relief to small mining
states. Rulemaking Record, Exhibit 89–
30 U.S.C. 901. The statute also seeks to companies in its revised regulations 37, Appendix A, M&R at pp. 17–18. The
ensure, however, that liability for a governing the assessment of civil money Department will consider these
miner’s benefits is borne by the entity penalties for an operator’s failure to alternatives in order.
most responsible for the development of secure the payment of benefits, 20 CFR 1. Exercising the authority of 30
that miner’s totally disabling Part 726, Subpart D. These regulations U.S.C. 943 (NMA alternatives 1 and 2,
pneumoconiosis. Prior to 1978, claims specifically assess a smaller base M&R alternatives 1 and 2). Section 933
that were not paid by individual coal penalty amount on a smaller employer, of the Black Lung Benefits Act, 30
mine operators were paid by the federal i.e., one with few miner-employees. U.S.C. 943, authorizes the Secretary of
government from general revenues. In Finally, the Department invited Labor to establish a Black Lung
1978, Congress created the Black Lung comment from interested parties as to Compensation Insurance Fund to allow
Disability Trust Fund, financed by an other alternatives that would reduce the coal mine operators to purchase
excise tax on coal production, to assume financial impact of the rules on the insurance to secure their obligations
the payment of benefits in cases for small business community. under the Act. The Fund may be used
which no individual operator bore A number of comments suggest that to insure coal mine operators directly,
liability. Congress clearly indicated its by inviting comments as to other 30 U.S.C. 943(c)(1), or to enter into
preference that the Trust Fund should alternatives, the Department abdicated reinsurance agreements with one or
be considered a payment source of last its responsibilities under the Regulatory more insurers or pools of insurers, 30
resort. In discussing the successor Flexibility Act. The Department does U.S.C. 943(c)(2). The Act provides an
operator provisions of the Black Lung not agree. Nothing in the RFA requires important limitation on the Secretary’s
Benefits Reform Act of 1977, enacted in an agency to forego rulemaking because authority, however: ‘‘The Secretary may
1978, the Senate Committee on Human the regulated community is unhappy exercise his or her authority under this
Resources, whose bill contained the with the alternatives that the agency section only if, and to the extent that,
provisions ultimately included in the considered in its initial regulatory insurance coverage is not otherwise
Act, stated: ‘‘It is further the intention flexibility analysis, or because that available, at reasonable cost, to
of this section, with respect to claims community has proposed additional operators of coal mines.’’ 30 U.S.C.
[in] which the miner worked on or after alternatives. On the contrary, the RFA 943(b) (emphasis added). The record
January 1, 1970, to ensure that encourages agencies to notify small contains no evidence that would allow
individual coal mine operators rather businesses of proposed rulemaking the Secretary to determine, under
than the trust fund bear the liability for activities precisely so that those small subsection (b), that insurance coverage
claims arising out of such operator’s businesses may participate in the is not currently available at reasonable
mine, to the maximum extent feasible.’’ identification of additional alternatives cost to operators of coal mines.
Consequently, the statute does not processing of cases in which the monitoring the designated responsible
permit the ‘‘alternative’’ suggested by identity of the responsible operator is in operator’s litigation of the claimant’s
the commenters. Projections provided doubt. As revised, the regulations eligibility while the case is pending
by the mining and insurance industries, permit the district director to refer a before the Office of Administrative Law
however, predict significantly higher case to the Office of Administrative Law Judges. The Department’s proposal
percentage increases in the cost of Judges with no more than one operator would have permitted a potentially
commercial black lung insurance if included as a party to the claim. See liable operator to submit its own
these rules become final. The preamble to § 725.418. The Department documentary medical evidence upon
Department disagrees with these recognizes that this approach imposes establishing that the designated
projections and has explained its additional risk on the Black Lung responsible operator had not undertaken
reasoning above. The Department also Disability Trust Fund. See preamble to a full development of the evidence. The
recognizes its obligation, however, to § 725.414. The Department has Department does not believe that this
closely monitor insurance rates, concluded that this risk is acceptable, situation would have arisen often, and
especially any increase in rates that may however, because all the potentially thus believes that the overall costs
result from the final promulgation of the liable operators will be required to associated with exercising this right
Department’s regulations. To the extent submit evidence relevant to the issue of were not significant. The costs relevant
that rates do increase, the Department operator liability while the case is to both of these issues were thus largely
will have to determine whether those pending before the district director. The the costs associated with hiring an
increases have resulted in insurance district director will thus have available attorney to monitor the litigation and, as
becoming unavailable at a reasonable all of the relevant evidence when he appropriate, attend the hearing or file a
cost to coal mine operators, the statutory finally designates the operator brief to argue on the operator’s behalf.
prerequisite for the Secretary’s authority responsible for payment of a claim. That In preparing its economic analysis, the
under 30 U.S.C. 943(b). one operator will remain a party in Department used the industry’s estimate
2. Naming only the most likely further proceedings. of $6,000 as the current average cost for
responsible operator (NMA Alternative defending a claim that proceeds beyond
The Department does not believe that
3, M&R alternative 3). The NMA the district director level. See preamble
this alternative is a truly significant
suggests that the Department name only to § 725.407. This cost includes not only
one—i.e., one which will provide the
the most likely responsible operator, attorneys’ fees, but also the
affected small business community with
which the NMA asserts was the development of evidence relevant to
Department’s practice under its former significant relief from the costs of the
operator liability and claimant
regulations. The M&R analysis states Department’s regulatory revisions. First,
eligibility. The Department does not
that the Department could form an it will apply in only a small percentage
believe that the fees charged by an
insurance fund to reimburse the Black of cases. The Department estimates that
attorney to monitor the litigation and
Lung Disability Trust Fund for claims in less than 10 percent of responsible
present argument represent a large
which the most likely responsible operator cases involve substantial
component of the estimated costs.
operator is ultimately determined not to questions as to the identity of the Accordingly, in light of both the small
be liable for the payment of benefits, operator that should be liable for the number of affected cases and the
thereby imposing an unwarranted payment of benefits. In addition, only minimal expenses involved, the
liability on the Fund. The Department 33 percent of all cases filed are referred Department does not consider that its
does not agree that it formerly named to the Office of Administrative Law adoption of this alternative will result in
only the most likely responsible Judges. Accordingly, the Department’s significant savings to small coal mine
operator. In its discussion of § 725.408, revision will likely affect only 3 percent operators.
the Department observed that, where of responsible operator cases. Second, 3. Establish criteria to determine
necessary, it made more than one the additional cost that would have when a state’s workers’ compensation
operator a party to a claim under the been required by continued operator program provides ‘‘adequate coverage’’
prior regulations. See preamble to participation is relatively small. It is for totally disabling pneumoconiosis
§ 725.408, paragraph (f). In addition, true that operators will no longer have (NMA alternative 4, M&R alternative 4).
M&R’s solution to the problem of to defend against an effort by the Section 421 of the Black Lung Benefits
imposing additional risk on the Trust designated responsible operator to shift Act, 30 U.S.C. 931, requires the
Fund—that the Department use an liability to them beyond the district Secretary to publish in the Federal
‘‘insurance fund’’ to reimburse the Trust director level. Instead, once a case is Register a list of all states whose
Fund for such claims—is flawed on two referred to the Office of Administrative workers’ compensation laws provide
counts: 1) for the reasons described Law Judges, if the designated ‘‘adequate coverage’’ for occupational
above, the Department cannot establish responsible operator shows that it does pneumoconiosis. The Secretary’s
an insurance fund absent a finding that not meet the criteria for a responsible certification that a state provides
insurance is not available at reasonable operator, § 725.495, liability will shift to adequate coverage prevents any claim
cost; and 2) reimbursement of the Trust the Trust Fund. The costs associated for benefits arising in that state from
Fund for such claims is not among the with an operator’s continued being adjudicated under the Black Lung
statutorily-prescribed uses for monies in participation in a claim before the Office Benefits Act.
an insurance fund, see 30 U.S.C. of Administrative Law Judges would The Act provides certain criteria
943(g)(1)(A)–(C). have been small, however, because the states must meet in order to gain
The Department notes, however, the operator would already have had to Secretarial certification, 30 U.S.C.
continued objection of a number of develop and submit all evidence 921(b)(2)(A)—(E). It also provides that
commenters to the Department’s relevant to the liability issue while the the Secretary may, by regulation,
proposal that operators be forced to case was pending before the district establish additional criteria. 30 U.S.C.
participate in a joint defense of the director. The final regulations do not 921(b)(2)(F). In its first notice of
claimant’s eligibility, see preamble to alter that requirement. A second set of proposed rulemaking, the Department
§ 725.414. The Department has therefore costs eliminated by the Department’s observed that the applicable regulations,
reconsidered its administrative revision are those associated with 20 CFR Part 722 (1999), had not been
amended since 1973, and that, in light 4. Permit the settlement of black lung granted her by the Black Lung Benefits
of statutory amendments in 1978 and claims (NMA Alternative 5). The NMA Act to provide by regulation the
1981, those regulations were obsolete. suggests, without further explanation, substance of provisions that Congress
62 FR 3347 (Jan. 22, 1997). Accordingly, that permitting the settlement of black had explicitly declined to incorporate.
the Department proposed to delete the lung claims will reduce the impact of See Senate Conference Committee
specific criteria contained in Part 722. the Department’s regulatory revisions on Report, reprinted in Committee Print,
The Department proposed replacing small coal mine operators. The 94th Cong., 1st Sess., Legislative History
them with a general statement that it Department believes that the Black Lung of the Federal Coal Mine Health and
would review any state’s application for Benefits Act does not allow the Safety Act of 1969 at 1624 (‘‘The
certification in light of the provisions of settlement of claims, and that permitting Secretary of Labor is also authorized to
the then-current Act, and the principle the settlement of claims would be publish additional provisions by
that the state law would be certified contrary to the objectives of the Act in regulation, together with all or part of
only if it guaranteed at least the same any event. the applicable provisions of said Act
compensation, to the same individuals, The Black Lung Benefits Act other than those specifically excluded
as was provided by the Act. incorporates two provisions of the * * *.’’), quoted in Director, OWCP v.
The NMA and M&R urge the Longshore and Harbor Workers’ National Mines Corp., 554 F.2d 1267,
Department to develop specific criteria Compensation Act relevant to 1274 n. 31 (4th Cir. 1977).
that would allow a state to determine settlements, and specifically excludes a Congress’s decision to exclude the
what steps it needs to take to allow the third provision. Section 15(b) of the settlement provisions of LHWCA
Secretary to certify its law as providing LHWCA, 33 U.S.C. 915(b), renders section 8 when it incorporated other
adequate coverage for occupational invalid any ‘‘agreement by an employee LHWCA provisions makes sense. When
pneumoconiosis. M&R states that ‘‘[n]o to waive his right to compensation Congress enacted the Black Lung
single alternative would be more helpful under this chapter.’’ Section 16, 33 Benefits Act in 1969, and when it
to small coal operations than to be U.S.C. 916, invalidates any ‘‘release amended the list of excluded sections in
required to provide compensation under * * * of compensation or benefits due 1972, section 8 permitted only the
only one mechanism.’’ M&R at p. 18. or payable under this chapter, except as settlement of claims for partial
This suggestion would require the provided in this chapter.’’ Together, disability. Because benefits under the
Department to update the criteria these provisions, which have been part Black Lung Benefits Act are available
previously set forth in Part 722. of the LHWCA since its 1927 enactment, only to miners who are totally disabled
Although no state has sought the have been interpreted to ‘‘prevent[] any due to pneumoconiosis, and to the
Secretary’s certification since 1973, the private settlement of a claim between survivors of miners who die from that
Department accepts the commenters’ the employer and the employee.’’ disease, there was no reason to
suggestion that a revision of the Part 722 American Mutual Liability Ins. Co. of incorporate section 8. Congress
criteria will encourage states to seek the Boston v. Lowe, 85 F.2d 625, 628 (3d amended section 8 in 1972 to allow
certification permitted by the Act. Cir. 1936); see also Lumber Mutual settlement of claims for total disability,
Publication of a current set of criteria, Casualty Ins. Co. of New York v. Locke, and again in 1984 to permit the
however, will require considerable 60 F.2d 35, 37 (2d Cir. 1932). settlement of survivors’ claims. Pub. L.
study and additional drafting, and In 1938, Congress amended section 8 92–576, § 20, 86 Stat. 1264 (1972); Pub.
would needlessly delay final of the Longshore Act to specifically L. 98–426, § 8(f), 98 Stat. 1646 (1984).
promulgation of the remaining provide a settlement procedure in cases Congress did not revisit its exclusion of
regulations in the Department’s in which the injured employee sought Longshore Act provisions from the
proposal. Following completion of that compensation for permanent or Black Lung Benefits Act on either
work, the Department will issue a new temporary partial disability. See Act of occasion, even though Congress
notice of proposed rulemaking in order June 25, 1938, c. 685, § 5, 52 Stat. 1166. specifically amended the relevant
to ensure that interested parties have an The federal courts have long interpreted statutory section in the Black Lung
opportunity to comment upon possible the section 8 procedure as the only Benefits Act, 30 U.S.C. 932(a), in the
Secretarial certification criteria. The means by which an injured employee course of amending the LHWCA in
Department believes that, in the interim, could validly settle a claim for 1984. See Pub. L. 98–426, § 28(h)(i), 98
the revised Part 722 will accommodate compensation. See, e.g., Norfolk Stat. 1655 (1984).
any state seeking certification. Shipbuilding & Drydock Corp. v. Nance, The Department thus believes that
M&R also suggests that the 858 F.2d 182, 185–6 (4th Cir. 1988), Congress has expressed its intent not to
Department establish a formal and cert. denied, 492 U.S. 911 (1989); permit the settlement of claims for black
ongoing Departmental review of state Oceanic Butler v. Nordahl, 842 F.2d lung benefits. Moreover, the Department
laws to determine whether they provide 773, 776 n. 3 (5th Cir. 1988). In believes that this decision is supported
adequate coverage. The Department incorporating certain procedures of the by sound policy considerations. The
does not believe that it would be LHWCA into the Black Lung Benefits Black Lung Benefits Act is intended to
productive to engage in such a review. Act, however, Congress specifically provide benefits (37 and 1/2 percent of
States that revise their workers’ excluded LHWCA § 8. See list of the monthly pay for a federal employee
compensation laws to meet the excluded provisions in 30 U.S.C. 932(a). in grade GS–2, step 1, augmented for
Department’s criteria will do so in order Moreover, although Congress authorized additional dependents) to miners who
to preempt the application of the Black the Secretary to vary the terms of are totally disabled due to
Lung Benefits Act. Those states will incorporated LHWCA provisions in pneumoconiosis and to the survivors of
have a clear incentive to submit an order to administer the Black Lung miners who die due to the disease. 30
application to the Department for the Benefits Act, it forbade the Department U.S.C. 922(a). ‘‘Providing a minimum
appropriate certification. Relying on from promulgating provisions that were level of income for eligible miners
states to initiate the certification process ‘‘inconsistent with those specifically disabled by black lung is at the heart of
thus makes the most efficient use of excluded * * *.’’ By this language, the statute.’’ Harman Mining Co. v.
government resources at both the state Congress expressed its intention that the Stewart, 826 F.2d 1388, 1390 (4th Cir.
and federal levels. Secretary not use the broad powers 1987). Interpreting the Act so as to
permit a totally disabled miner to accept processing approximately 620,000 bills. operator over payment of the bill is
a settlement that reduces that minimum OWCP Annual Report to Congress, FY subject to informal resolution by the
level of benefits would thus contravene 1998, p. 18. district director. If that resolution is
one of the basic objectives of the Act. The Department has already adopted unsuccessful, either the miner or the
Former coal miners tend to apply for a variety of cost-containment measures operator may obtain an expedited
black lung benefits shortly after they to reduce medical treatment costs paid hearing before the Office of
leave employment in the coal industry by the Trust Fund. The Department’s Administrative Law Judges. 20 CFR
or when they retire, usually at the same guidelines for the payment of 725.707 (a), (b) (1999). Similarly, an
time they file an application for Social medication expenses were derived from operator may request a hearing with
Security benefits, rather than in the system used by the United Mine respect to any bill which was paid from
response to a specific diagnosis or Workers of America Health and the Black Lung Disability Trust Fund
injury. The population of claimants thus Retirement Funds in light of the similar while the operator was contesting the
tends to be significantly different than is populations served by the UMWA miner’s eligibility for benefits. ‘‘Though
the case with the population of claims Funds and the Trust Fund. The framed as contests between the
under other workers’ compensation Department updates its list of allowable particular Operator and the Fund over
programs, including the LHWCA. charges for various drugs on a monthly reimbursement, these determinations
Because of the latent, progressive nature basis and for treatment procedures on a provide the means by which an
of pneumoconiosis, see preamble to periodic basis to ensure that it does not Operator may challenge the validity of
§ 725.309, a substantial number of reimburse miners and their medical all or part of the miner’s initial claim,
applicants whose initial claims are providers an amount above what is including each medical expense, even
denied are ultimately determined to be usual and customary for the beneficiary though it has already been paid by the
eligible for black lung benefits. In its population. The Medical Director of the Fund.’’ BethEnergy Mines, Inc. v.
second notice of proposed rulemaking, Department’s Office of Workers’ Director, OWCP, 32 F.3d 843, 847 (3d
the Department observed that the Compensation Programs reviews Cir. 1994). Thus, the statute and its
approval rate for subsequent claims medications that have not previously implementing regulations afford an
filed by miners whose initial claims been approved for inclusion on the operator ample opportunity to challenge
were denied (10.56 percent) is higher Department’s list. the reasonableness of any amount that a
than the approval rate for first-time The Department also carefully screens claimant seeks as payment for medical
applicants (7.47 percent). 64 FR 54984 inpatient service bills for both an services. Although the Department will
(Oct. 8, 1999). These statistics acceptable diagnosis and an continue to refine its cost-containment
demonstrate that first-time applicants ‘‘appropriate’’ treatment based upon the procedures, it does not believe that
may not fully appreciate the extent to diagnosis and procedure codes present these procedures represent an
which they may be affected by on the Universal Billing Form. These
‘‘alternative’’ to its rulemaking
pneumoconiosis later in life. As a result, diagnoses and treatments are compared
activities. Rather, cost-containment
the Department believes that it would be to a set of algorithms that take into
must take place simultaneously with
inappropriate to encourage or permit account whether the diagnoses are
any revision of the Department’s
such applicants to bargain away the related to pneumoconiosis, the severity
regulations to ensure that the revisions
minimum level of benefits guaranteed of covered and non-covered conditions,
do not produce any unreasonable
them by Congress. Accordingly, the and the character of the procedures. The
changes in health care expenditures.
Department does not accept the program then makes a determination as
suggestion that permitting settlement, to whether a bill should be paid in full, In summary, the Department does not
even if it were not forbidden by the Act, paid in part, denied in full, or made believe that any of the alternatives
represents an alternative to the subject to review by the Department’s suggested by the NMA and M&R offer
Department’s rule that is consistent with staff. Bills that are considered payable relief to small business that is consistent
the objectives of the Black Lung Benefits are subject to a series of edits to with the stated objectives of the Black
Act. determine if specific types of services Lung Benefits Act. Although the
5. Establish cost-containment should be paid, denied, or reviewed Department does intend to revise the
mechanisms for health care providers before reimbursement. For example, the Part 722 criteria in light of the
(NMA alternative 6). Department will deny a bill for a private commenters’ suggestion, the failure of
Through the incorporation of LHWCA room during a hospitalization in the any state to seek certification of its laws
§ 7, the Black Lung Benefits Act requires absence of adequate justification and over the last quarter century indicates
responsible coal mine operators and the pay only the cost of a non-private room. that this effort will not result in any
Black Lung Disability Trust Fund to The cost-containment measures quick relief to the small business
provide medical benefits to miners who adopted by the Department have community from the economic impact
meet the Act’s eligibility criteria. 33 reduced the Trust Fund’s expenditures of the Department’s regulations. With
U.S.C. 907, as incorporated into the for medical treatment. Operators and the exception of graduated civil money
Black Lung Benefits Act by 30 U.S.C. their insurers, organizations with penalties, the requirements of the Black
932(a). The Department’s regulations considerable experience in cost- Lung Benefits Act simply do not permit
require that a miner be provided ‘‘such containment, are similarly free to adopt the Department to adjudicate the issues
medical, surgical, and other attendance measures that ensure that they pay no of claimant eligibility and operator
and treatment, nursing and hospital more than the usual and customary liability differently depending on the
services, medicine and apparatus, and amounts for necessary services. Under size of the coal mine operator that may
any other medical service or supply, for the Secretary’s regulations, eligible be liable for the payment of those
such periods as the nature of the miner’s miners present bills for medical services benefits. Because the Department
pneumoconiosis * * * and disability directly to the responsible operator believes that the ‘‘no action’’ alternative,
require.’’ 20 CFR 725.701(b) (1999). In liable for the payment of their benefits, discussed in detail above, would also be
Fiscal Year 1998, the Trust Fund paid its insurer, or its claims servicing agent. inappropriate, the Department has
approximately $82.1 million for the 20 CFR 725.704(a)(2) (1999). Any published a final rule implementing its
medical treatment of eligible miners, dispute between the miner and the proposed revisions.
Conclusion Subpart C—Determining Entitlement to standards were set forth by the Secretary
Benefits of Health, Education, and Welfare in
The Department’s final rule revising
the regulations implementing the Black 718.201 Definition of pneumoconiosis. subpart D of part 410 of this title, and
718.202 Determining the existence of adopted by the Secretary of Labor for
Lung Benefits Act will result in the pneumoconiosis.
increase of premiums paid by the coal application to all claims filed with the
718.203 Establishing relationship of Secretary of Labor (see 20 CFR 718.2,
mining industry to insure their pneumoconiosis to coal mine
obligations under the Act. The contained in the 20 CFR, Part 500 to
employment.
economic analysis prepared in 718.204 Total disability and disability end, edition, revised as of April 1,
connection with the Department’s initial causation defined; criteria for 1979.) Amendments made to section
regulatory flexibility analysis determining total disability and total 402(f) of the Act by the Black Lung
demonstrated that this premium disability due to pneumoconiosis. Benefits Reform Act of 1977 authorize
increase would result in additional 718.205 Death due to pneumoconiosis. the Secretary of Labor to establish
718.206 Effect of findings by persons or criteria for determining total or partial
annual costs to the industry with a point agencies.
estimate of $57.56 million. The disability or death due to
Department’s revised rule will not result Subpart D—Presumptions Applicable to pneumoconiosis to be applied in the
in any significantly higher costs. In light Eligibility Determinations processing and adjudication of claims
of the need for the revised regulations 718.301 Establishing length of employment filed under part C of title IV of the Act.
identified above, the Department as a miner. Section 402(f) of the Act further
believes that it is appropriate to finalize 718.302 Relationship of pneumoconiosis to authorizes the Secretary of Labor, in
coal mine employment. consultation with the National Institute
the rule. 718.303 Death from a respirable disease. for Occupational Safety and Health, to
List of Subjects in 20 CFR Parts 718, 718.304 Irrebuttable presumption of total establish criteria for all appropriate
722, 725, 726, 727 disability or death due to
medical tests administered in
pneumoconiosis.
Black lung benefits, Lung disease, 718.305 Presumption of pneumoconiosis. connection with a claim for benefits.
Miners, Mines, Workers’ compensation, 718.306 Presumption of entitlement Section 413(b) of the Act authorizes the
X-rays. applicable to certain death claims. Secretary of Labor to establish criteria
for the techniques to be used to take
Signed at Washington D.C., this first day of Appendix A to Part 718—Standards for
December, 2000. Administration and Interpretation of Chest
chest roentgenograms (X-rays) in
Roentgenograms (X-rays) connection with a claim for benefits
Bernard E. Anderson,
under the Act.
Assistant Secretary for Employment Appendix B to Part 718—Standards for (b) The Black Lung Benefits Reform
Standards. Administration and Interpretation of Act of 1977 provided that with respect
1. The authority citation for part 718 Pulmonary Function Tests. Tables B1, B2, to a claim filed prior to April 1, 1980,
continues to read as follows: B3, B4, B5, B6
or reviewed under section 435 of the
Authority: 5 U.S.C. 301, Reorganization Appendix C to Part 718—Blood–Gas Tables Act, the standards to be applied in the
Plan No. 6 of 1950, 15 FR 3174, 30 U.S.C. 901 adjudication of such claim shall not be
et seq., 902(f), 934, 936, 945, 33 U.S.C. 901 Subpart A—General more restrictive than the criteria
et seq., 42 U.S.C. 405, Secretary’s Order 7–
§ 718.1 Statutory provisions. applicable to a claim filed on June 30,
87, 52 FR 48466, Employment Standards
Order No. 90–02. (a) Under title IV of the Federal Coal 1973, with the Social Security
Mine Health and Safety Act of 1969, as Administration, whether or not the final
§§ 718.401–718.404 [Removed]
amended by the Black Lung Benefits Act disposition of the claim occurs after
2. Part 718 is amended by removing of 1972, the Federal Mine Safety and March 31, 1980. All such claims shall be
subpart E (§§ 718.401–718.404), revising Health Amendments Act of 1977, the reviewed under the criteria set forth in
subparts A through D, revising Black Lung Benefits Reform Act of 1977, part 727 of this title (see 20 CFR
Appendices A and C, and revising the the Black Lung Benefits Revenue Act of 725.4(d)).
text of Appendix B (the tables, B1 1977, the Black Lung Benefits § 718.2 Applicability of this part.
through B6, in Appendix B remain Amendments of 1981, and the Black This part is applicable to the
unchanged): Lung Benefits Revenue Act of 1981, adjudication of all claims filed after
benefits are provided to miners who are March 31, 1980, and considered by the
PART 718—STANDARDS FOR totally disabled due to pneumoconiosis
DETERMINING COAL MINERS’ TOTAL Secretary of Labor under section 422 of
and to certain survivors of a miner who the Act and part 725 of this subchapter.
DISABILITY OR DEATH DUE TO died due to or while totally or partially
PNEUMOCONIOSIS If a claim subject to the provisions of
disabled by pneumoconiosis. However, section 435 of the Act and subpart C of
Subpart A—General unless the miner was found entitled to part 727 of this subchapter (see 20 CFR
benefits as a result of a claim filed prior 725.4(d)) cannot be approved under that
Sec.
718.1 Statutory provisions.
to January 1, 1982, benefits are payable subpart, such claim may be approved, if
718.2 Applicability of this part. on survivors’ claims filed on or after appropriate, under the provisions
718.3 Scope and intent of this part. January 1, 1982, only when the miner’s contained in this part. The provisions of
718.4 Definitions and use of terms. death was due to pneumoconiosis, this part shall, to the extent appropriate,
except where the survivor’s entitlement be construed together in the
Subpart B—Criteria for the Development of
Medical Evidence
is established pursuant to § 718.306 on adjudication of all claims.
a claim filed prior to June 30, 1982.
718.101 General. Before the enactment of the Black Lung § 718.3 Scope and intent of this part.
718.102 Chest roentgenograms (X-rays).
718.103 Pulmonary function tests.
Benefits Reform Act of 1977, the (a) This part sets forth the standards
718.104 Report of physical examinations. authority for establishing standards of to be applied in determining whether a
718.105 Arterial blood-gas studies. eligibility for miners and their survivors coal miner is or was totally, or in the
718.106 Autopsy; biopsy. was placed with the Secretary of Health, case of a claim subject to § 718.306
718.107 Other medical evidence. Education, and Welfare. These partially, disabled due to
pneumoconiosis or died due to § 718.102 Chest roentgenograms (X-rays). considered in connection with the
pneumoconiosis. It also specifies the (a) A chest roentgenogram (X-ray) claim.
procedures and requirements to be shall be of suitable quality for proper (e) Except as provided in this
followed in conducting medical classification of pneumoconiosis and paragraph, no chest X-ray shall
examinations and in administering shall conform to the standards for constitute evidence of the presence or
various tests relevant to such administration and interpretation of absence of pneumoconiosis unless it is
determinations. chest X-rays as described in Appendix conducted and reported in accordance
(b) This part is designed to interpret A. with the requirements of this section
the presumptions contained in section (b) A chest X-ray to establish the and Appendix A. In the absence of
411(c) of the Act, evidentiary standards existence of pneumoconiosis shall be evidence to the contrary, compliance
and criteria contained in section 413(b) classified as Category 1, 2, 3, A, B, or C, with the requirements of Appendix A
of the Act and definitional requirements according to the International Labour shall be presumed. In the case of a
and standards contained in section Organization Union Internationale deceased miner where the only
402(f) of the Act within a coherent Contra Cancer/Cincinnati (1971) available X-ray does not substantially
framework for the adjudication of International Classification of comply with paragraphs (a) through (d),
claims. It is intended that these Radiographs of the Pneumoconioses such X-ray may form the basis for a
enumerated provisions of the Act be (ILO–U/C 1971), or subsequent revisions finding of the presence or absence of
construed as provided in this part. thereof. This document is available from pneumoconiosis if it is of sufficient
the Division of Coal Mine Workers’ quality for determining the presence or
§ 718.4 Definitions and use of terms. Compensation in the U.S. Department of absence of pneumoconiosis and such X-
Labor, Washington, D.C., telephone ray was interpreted by a Board-certified
Except as is otherwise provided by or Board-eligible radiologist or a
(202) 693–0046, and from the National
this part, the definitions and usages of certified ‘‘B’’ reader (see § 718.202).
Institute for Occupational Safety and
terms contained in § 725.101 of subpart
Health (NIOSH), located in Cincinnati,
A of part 725 of this title shall be Ohio, telephone (513) 841–4428) and
§ 718.103 Pulmonary function tests.
applicable to this part. Morgantown, West Virginia, telephone (a) Any report of pulmonary function
(304) 285–5749. A chest X-ray classified tests submitted in connection with a
Subpart B—Criteria for the claim for benefits shall record the
as Category Z under the ILO
Development of Medical Evidence results of flow versus volume (flow-
Classification (1958) or Short Form
§ 718.101 General. (1968) shall be reclassified as Category volume loop). The instrument shall
0 or Category 1 as appropriate, and only simultaneously provide records of
(a) The Office of Workers’ the latter accepted as evidence of volume versus time (spirometric
Compensation Programs (hereinafter pneumoconiosis. A chest X-ray tracing). The report shall provide the
OWCP or the Office) shall develop the classified under any of the foregoing results of the forced expiratory volume
medical evidence necessary for a classifications as Category 0, including in one second (FEV1) and the forced
determination with respect to each sub-categories 0—, 0/0, or 0/1 under the vital capacity (FVC). The report shall
claimant’s entitlement to benefits. Each UICC/Cincinnati (1968) Classification or also provide the FEV1/FVC ratio,
miner who files a claim for benefits the ILO–U/C 1971 Classification does expressed as a percentage. If the
under the Act shall be provided an not constitute evidence of maximum voluntary ventilation (MVV)
opportunity to substantiate his or her pneumoconiosis. is reported, the results of such test shall
claim by means of a complete (c) A description and interpretation of be obtained independently rather than
pulmonary evaluation including, but the findings in terms of the calculated from the results of the FEV1.
not limited to, a chest roentgenogram classifications described in paragraph (b) All pulmonary function test results
(X-ray), physical examination, (b) of this section shall be submitted by submitted in connection with a claim
pulmonary function tests and a blood- the examining physician along with the for benefits shall be accompanied by
gas study. film. The report shall specify the name three tracings of the flow versus volume
(b) The standards for the and qualifications of the person who and the electronically derived volume
administration of clinical tests and took the film and the name and versus time tracings. If the MVV is
examinations contained in this subpart qualifications of the physician reported, two tracings of the MVV
shall apply to all evidence developed by interpreting the film. If the physician whose values are within 10% of each
any party after January 19, 2001 in interpreting the film is a Board-certified other shall be sufficient. Pulmonary
connection with a claim governed by or Board-eligible radiologist or a function test results developed in
this part (see §§ 725.406(b), 725.414(a), certified ‘‘B’’ reader (see § 718.202), he connection with a claim for benefits
725.456(d)). These standards shall also or she shall so indicate. The report shall shall also include a statement signed by
apply to claims governed by part 727 further specify that the film was the physician or technician conducting
(see 20 CFR 725.4(d)), but only for interpreted in compliance with this the test setting forth the following:
clinical tests or examinations conducted paragraph. (1) Date and time of test;
after January 19, 2001. Any clinical test (d) The original film on which the X- (2) Name, DOL claim number, age,
or examination subject to these ray report is based shall be supplied to height, and weight of claimant at the
standards shall be in substantial the Office, unless prohibited by law, in time of the test;
compliance with the applicable which event the report shall be (3) Name of technician;
standard in order to constitute evidence considered as evidence only if the (4) Name and signature of physician
of the fact for which it is proffered. original film is otherwise available to supervising the test;
Unless otherwise provided, any the Office and other parties. Where the (5) Claimant’s ability to understand
evidence which is not in substantial chest X-ray of a deceased miner has the instructions, ability to follow
compliance with the applicable been lost, destroyed or is otherwise directions and degree of cooperation in
standard is insufficient to establish the unavailable, a report of a chest X-ray performing the tests. If the claimant is
fact for which it is proffered. submitted by any party shall be unable to complete the test, the person
executing the report shall set forth the diagnostic techniques, such as a blood relationship between the miner and his
reasons for such failure; gas study. treating physician may constitute
(6) Paper speed of the instrument (b) In addition to the requirements of substantial evidence in support of the
used; paragraph (a), a report of physical adjudication officer’s decision to give
(7) Name of the instrument used; examination may be based on any other that physician’s opinion controlling
(8) Whether a bronchodilator was procedures such as electrocardiogram, weight, provided that the weight given
administered. If a bronchodilator is blood-gas studies conducted and to the opinion of a miner’s treating
administered, the physician’s report reported as required by § 718.105, and physician shall also be based on the
must detail values obtained both before other blood analyses which, in the credibility of the physician’s opinion in
and after administration of the physician’s opinion, aid in his or her light of its reasoning and
bronchodilator and explain the evaluation of the miner. documentation, other relevant evidence
significance of the results obtained; and (c) In the case of a deceased miner, and the record as a whole.
(9) That the requirements of where no report is in substantial
compliance with paragraphs (a) and (b), § 718.105 Arterial blood-gas studies.
paragraphs (b) and (c) of this section
have been complied with. a report prepared by a physician who is (a) Blood-gas studies are performed to
unavailable may nevertheless form the detect an impairment in the process of
(c) Except as provided in this
basis for a finding if, in the opinion of alveolar gas exchange. This defect will
paragraph, no results of a pulmonary
the adjudication officer, it is manifest itself primarily as a fall in
function study shall constitute evidence
accompanied by sufficient indicia of arterial oxygen tension either at rest or
of the presence or absence of a
reliability in light of all relevant during exercise. No blood-gas study
respiratory or pulmonary impairment
evidence. shall be performed if medically
unless it is conducted and reported in (d) Treating physician. In weighing
accordance with the requirements of contraindicated.
the medical evidence of record relevant (b) A blood-gas study shall initially be
this section and Appendix B to this part. to whether the miner suffers, or administered at rest and in a sitting
In the absence of evidence to the suffered, from pneumoconiosis, whether position. If the results of the blood-gas
contrary, compliance with the the pneumoconiosis arose out of coal test at rest do not satisfy the
requirements of Appendix B shall be mine employment, and whether the requirements of Appendix C to this part,
presumed. In the case of a deceased miner is, or was, totally disabled by an exercise blood-gas test shall be
miner, where no pulmonary function pneumoconiosis or died due to offered to the miner unless medically
tests are in substantial compliance with pneumoconiosis, the adjudication contraindicated. If an exercise blood-gas
paragraphs (a) and (b) and Appendix B, officer must give consideration to the test is administered, blood shall be
noncomplying tests may form the basis relationship between the miner and any drawn during exercise.
for a finding if, in the opinion of the treating physician whose report is (c) Any report of a blood-gas study
adjudication officer, the tests admitted into the record. Specifically, submitted in connection with a claim
demonstrate technically valid results the adjudication officer shall take into shall specify:
obtained with good cooperation of the consideration the following factors in (1) Date and time of test;
miner. weighing the opinion of the miner’s (2) Altitude and barometric pressure
§ 718.104 Report of physical examinations. treating physician: at which the test was conducted;
(1) Nature of relationship. The (3) Name and DOL claim number of
(a) A report of any physical
opinion of a physician who has treated the claimant;
examination conducted in connection
the miner for respiratory or pulmonary (4) Name of technician;
with a claim shall be prepared on a (5) Name and signature of physician
conditions is entitled to more weight
medical report form supplied by the supervising the study;
than a physician who has treated the
Office or in a manner containing (6) The recorded values for PC02, P02,
miner for non-respiratory conditions;
substantially the same information. Any (2) Duration of relationship. The and PH, which have been collected
such report shall include the following length of the treatment relationship simultaneously (specify values at rest
information and test results: demonstrates whether the physician has and, if performed, during exercise);
(1) The miner’s medical and observed the miner long enough to (7) Duration and type of exercise;
employment history; obtain a superior understanding of his (8) Pulse rate at the time the blood
(2) All manifestations of chronic or her condition; sample was drawn;
respiratory disease; (3) Frequency of treatment. The (9) Time between drawing of sample
(3) Any pertinent findings not frequency of physician-patient visits and analysis of sample; and
specifically listed on the form; demonstrates whether the physician has (10) Whether equipment was
(4) If heart disease secondary to lung observed the miner often enough to calibrated before and after each test.
disease is found, all symptoms and obtain a superior understanding of his (d) If one or more blood-gas studies
significant findings; or her condition; and producing results which meet the
(5) The results of a chest X-ray (4) Extent of treatment. The types of appropriate table in Appendix C is
conducted and interpreted as required testing and examinations conducted administered during a hospitalization
by § 718.102; and during the treatment relationship which ends in the miner’s death, then
(6) The results of a pulmonary demonstrate whether the physician has any such study must be accompanied by
function test conducted and reported as obtained superior and relevant a physician’s report establishing that the
required by § 718.103. If the miner is information concerning the miner’s test results were produced by a chronic
physically unable to perform a condition. respiratory or pulmonary condition.
pulmonary function test or if the test is (5) In the absence of contrary Failure to produce such a report will
medically contraindicated, in the probative evidence, the adjudication prevent reliance on the blood-gas study
absence of evidence establishing total officer shall accept the statement of a as evidence that the miner was totally
disability pursuant to § 718.304, the physician with regard to the factors disabled at death. (e) In the case of a
report must be based on other medically listed in paragraphs (d)(1) through (4) of deceased miner, where no blood gas
acceptable clinical and laboratory this section. In appropriate cases, the tests are in substantial compliance with
paragraphs (a), (b), and (c), dust disease of the lung and its requirements of § 718.102 and if such X-
noncomplying tests may form the basis sequelae, including respiratory and ray has been taken by a radiologist or
for a finding if, in the opinion of the pulmonary impairments, arising out of qualified radiologic technologist or
adjudication officer, the only available coal mine employment. This definition technician and there is no evidence that
tests demonstrate technically valid includes both medical, or ‘‘clinical’’, the claim has been fraudulently
results. This provision shall not excuse pneumoconiosis and statutory, or represented. However, these limitations
compliance with the requirements in ‘‘legal’’, pneumoconiosis. shall not apply to any claim filed on or
paragraph (d) for any blood gas study (1) Clinical Pneumoconiosis. ‘‘Clinical after January 1, 1982.
administered during a hospitalization pneumoconiosis’’ consists of those (ii) The following definitions shall
which ends in the miner’s death. diseases recognized by the medical apply when making a finding in
community as pneumoconioses, i.e., the accordance with this paragraph.
§ 718.106 Autopsy; biopsy. conditions characterized by permanent (A) The term other evidence means
(a) A report of an autopsy or biopsy deposition of substantial amounts of medical tests such as blood-gas studies,
submitted in connection with a claim particulate matter in the lungs and the pulmonary function studies or physical
shall include a detailed gross fibrotic reaction of the lung tissue to examinations or medical histories
macroscopic and microscopic that deposition caused by dust exposure which establish the presence of a
description of the lungs or visualized in coal mine employment. This chronic pulmonary, respiratory or
portion of a lung. If a surgical procedure definition includes, but is not limited cardio-pulmonary condition, and in the
has been performed to obtain a portion to, coal workers’ pneumoconiosis, case of a deceased miner, in the absence
of a lung, the evidence shall include a anthracosilicosis, anthracosis, of medical evidence to the contrary,
copy of the surgical note and the anthrosilicosis, massive pulmonary affidavits of persons with knowledge of
pathology report of the gross and fibrosis, silicosis or silicotuberculosis, the miner’s physical condition.
microscopic examination of the surgical arising out of coal mine employment. (B) Pulmonary or respiratory
specimen. If an autopsy has been (2) Legal Pneumoconiosis. ‘‘Legal impairment means inability of the
performed, a complete copy of the pneumoconiosis’’ includes any chronic human respiratory apparatus to perform
autopsy report shall be submitted to the lung disease or impairment and its in a normal manner one or more of the
Office. sequelae arising out of coal mine three components of respiration,
(b) In the case of a miner who died employment. This definition includes, namely, ventilation, perfusion and
prior to March 31, 1980, an autopsy or but is not limited to, any chronic diffusion.
biopsy report shall be considered even restrictive or obstructive pulmonary (C) Board-certified means certification
when the report does not substantially disease arising out of coal mine in radiology or diagnostic roentgenology
comply with the requirements of this employment. by the American Board of Radiology,
section. A noncomplying report (b) For purposes of this section, a Inc. or the American Osteopathic
concerning a miner who died prior to disease ‘‘arising out of coal mine Association.
March 31, 1980, shall be accorded the employment’’ includes any chronic (D) Board-eligible means the
appropriate weight in light of all pulmonary disease or respiratory or successful completion of a formal
relevant evidence. pulmonary impairment significantly accredited residency program in
(c) A negative biopsy is not related to, or substantially aggravated radiology or diagnostic roentgenology.
conclusive evidence that the miner does by, dust exposure in coal mine (E) Certified ‘B’ reader or ‘B’ reader
not have pneumoconiosis. However, employment. means a physician who has
where positive findings are obtained on (c) For purposes of this definition, demonstrated proficiency in evaluating
biopsy, the results will constitute ‘‘pneumoconiosis’’ is recognized as a chest roentgenograms for
evidence of the presence of latent and progressive disease which roentgenographic quality and in the use
pneumoconiosis. may first become detectable only after of the ILO–U/C classification for
the cessation of coal mine dust interpreting chest roentgenograms for
§ 718.107 Other medical evidence. exposure. pneumoconiosis and other diseases by
(a) The results of any medically taking and passing a specially designed
acceptable test or procedure reported by § 718.202 Determining the existence of proficiency examination given on behalf
a physician and not addressed in this pneumoconiosis. of or by the Appalachian Laboratory for
subpart, which tends to demonstrate the (a) A finding of the existence of Occupational Safety and Health. See 42
presence or absence of pneumoconiosis, pneumoconiosis may be made as CFR 37.51(b)(2).
the sequelae of pneumoconiosis or a follows: (F) Qualified radiologic technologist
respiratory or pulmonary impairment, (1) A chest X-ray conducted and or technician means an individual who
may be submitted in connection with a classified in accordance with § 718.102 is either certified as a registered
claim and shall be given appropriate may form the basis for a finding of the technologist by the American Registry of
consideration. existence of pneumoconiosis. Except as Radiologic Technologists or licensed as
(b) The party submitting the test or otherwise provided in this section, a radiologic technologist by a state
procedure pursuant to this section bears where two or more X-ray reports are in licensing board.
the burden to demonstrate that the test conflict, in evaluating such X-ray (2) A biopsy or autopsy conducted
or procedure is medically acceptable reports consideration shall be given to and reported in compliance with
and relevant to establishing or refuting the radiological qualifications of the § 718.106 may be the basis for a finding
a claimant’s entitlement to benefits. physicians interpreting such X-rays. of the existence of pneumoconiosis. A
(i) In all claims filed before January 1, finding in an autopsy or biopsy of
Subpart C—Determining Entitlement to 1982, where there is other evidence of anthracotic pigmentation, however,
Benefits pulmonary or respiratory impairment, a shall not be sufficient, by itself, to
Board-certified or Board-eligible establish the existence of
§ 718.201 Definition of pneumoconiosis. radiologist’s interpretation of a chest X- pneumoconiosis. A report of autopsy
(a) For the purpose of the Act, ray shall be accepted by the Office if the shall be accepted unless there is
‘‘pneumoconiosis’’ means a chronic X-ray is in compliance with the evidence that the report is not accurate
or that the claim has been fraudulently who are totally disabled due to (ii) Arterial blood-gas tests show the
represented. pneumoconiosis, or who were totally values listed in Appendix C to this part,
(3) If the presumptions described in disabled due to pneumoconiosis at the or
§§ 718.304, 718.305 or § 718.306 are time of death. For purposes of this (iii) The miner has pneumoconiosis
applicable, it shall be presumed that the section, any nonpulmonary or and has been shown by the medical
miner is or was suffering from nonrespiratory condition or disease, evidence to be suffering from cor
pneumoconiosis. which causes an independent disability pulmonale with right-sided congestive
(4) A determination of the existence of unrelated to the miner’s pulmonary or heart failure, or
pneumoconiosis may also be made if a respiratory disability, shall not be (iv) Where total disability cannot be
physician, exercising sound medical considered in determining whether a shown under paragraphs (b)(2)(i), (ii), or
judgment, notwithstanding a negative X- miner is totally disabled due to (iii) of this section, or where pulmonary
ray, finds that the miner suffers or pneumoconiosis. If, however, a function tests and/or blood gas studies
suffered from pneumoconiosis as nonpulmonary or nonrespiratory are medically contraindicated, total
defined in § 718.201. Any such finding condition or disease causes a chronic disability may nevertheless be found if
shall be based on objective medical respiratory or pulmonary impairment, a physician exercising reasoned medical
evidence such as blood-gas studies, that condition or disease shall be judgment, based on medically
electrocardiograms, pulmonary function considered in determining whether the acceptable clinical and laboratory
studies, physical performance tests, miner is or was totally disabled due to diagnostic techniques, concludes that a
physical examination, and medical and pneumoconiosis. miner’s respiratory or pulmonary
work histories. Such a finding shall be condition prevents or prevented the
(b)(1) Total disability defined. A
supported by a reasoned medical miner from engaging in employment as
miner shall be considered totally
opinion. described in paragraph (b)(1) of this
(b) No claim for benefits shall be disabled if the irrebuttable presumption
section.
denied solely on the basis of a negative described in § 718.304 applies. If that (c)(1) Total disability due to
chest X-ray. presumption does not apply, a miner pneumoconiosis defined. A miner shall
(c) A determination of the existence of shall be considered totally disabled if be considered totally disabled due to
pneumoconiosis shall not be made the miner has a pulmonary or pneumoconiosis if pneumoconiosis, as
solely on the basis of a living miner’s respiratory impairment which, standing defined in § 718.201, is a substantially
statements or testimony. Nor shall such alone, prevents or prevented the miner: contributing cause of the miner’s totally
a determination be made upon a claim (i) From performing his or her usual disabling respiratory or pulmonary
involving a deceased miner filed on or coal mine work; and impairment. Pneumoconiosis is a
after January 1, 1982, solely based upon (ii) From engaging in gainful ‘‘substantially contributing cause’’ of the
the affidavit(s) (or equivalent sworn employment in the immediate area of miner’s disability if it:
testimony) of the claimant and/or his or his or her residence requiring the skills (i) Has a material adverse effect on the
her dependents who would be eligible or abilities comparable to those of any miner’s respiratory or pulmonary
for augmentation of the claimant’s employment in a mine or mines in condition; or
benefits if the claim were approved. which he or she previously engaged (ii) Materially worsens a totally
with some regularity over a substantial disabling respiratory or pulmonary
§ 718.203 Establishing relationship of
pneumoconiosis to coal mine employment. period of time. impairment which is caused by a
(2) Medical criteria. In the absence of disease or exposure unrelated to coal
(a) In order for a claimant to be found
contrary probative evidence, evidence mine employment.
eligible for benefits under the Act, it (2) Except as provided in § 718.305
must be determined that the miner’s which meets the standards of either
paragraphs (b)(2)(i), (ii), (iii), or (iv) of and paragraph (b)(2)(iii) of this section,
pneumoconiosis arose at least in part proof that the miner suffers or suffered
out of coal mine employment. The this section shall establish a miner’s
total disability: from a totally disabling respiratory or
provisions in this section set forth the pulmonary impairment as defined in
criteria to be applied in making such a (i) Pulmonary function tests showing
values equal to or less than those listed paragraphs (b)(2)(i), (b)(2)(ii), (b)(2)(iv)
determination. and (d) of this section shall not, by
(b) If a miner who is suffering or in Table B1 (Males) or Table B2
(Females) in Appendix B to this part for itself, be sufficient to establish that the
suffered from pneumoconiosis was
an individual of the miner’s age, sex, miner’s impairment is or was due to
employed for ten years or more in one
and height for the FEV1 test; if, in pneumoconiosis. Except as provided in
or more coal mines, there shall be a
addition, such tests also reveal the paragraph (d), the cause or causes of a
rebuttable presumption that the
values specified in either paragraph miner’s total disability shall be
pneumoconiosis arose out of such
(b)(2)(i)(A) or (B) or (C) of this section: established by means of a physician’s
employment.
(c) If a miner who is suffering or documented and reasoned medical
(A) Values equal to or less than those
suffered from pneumoconiosis was report.
listed in Table B3 (Males) or Table B4 (d) Lay evidence. In establishing total
employed less than ten years in the (Females) in Appendix B of this part, for disability, lay evidence may be used in
nation’s coal mines, it shall be an individual of the miner’s age, sex, the following cases:
determined that such pneumoconiosis and height for the FVC test, or (1) In a case involving a deceased
arose out of that employment only if (B) Values equal to or less than those miner in which the claim was filed prior
competent evidence establishes such a listed in Table B5 (Males) or Table B6 to January 1, 1982, affidavits (or
relationship. (Females) in Appendix B to this part, for equivalent sworn testimony) from
§ 718.204 Total disability and disability an individual of the miner’s age, sex, persons knowledgeable of the miner’s
causation defined; criteria for determining and height for the MVV test, or physical condition shall be sufficient to
total disability and total disability due to (C) A percentage of 55 or less when establish total (or under § 718.306
pneumoconiosis. the results of the FEV1 test are divided partial) disability due to
(a) General. Benefits are provided by the results of the FVC test (FEV1/ pneumoconiosis if no medical or other
under the Act for or on behalf of miners FVC equal to or less than 55%), or relevant evidence exists which
addresses the miner’s pulmonary or to perform his or her usual coal mine (4) However, survivors are not eligible
respiratory condition. work. for benefits where the miner’s death was
(2) In a case involving a survivor’s (3) Changed circumstances of caused by a traumatic injury or the
claim filed on or after January 1, 1982, employment indicative of a miner’s principal cause of death was a medical
but prior to June 30, 1982, which is reduced ability to perform his or her condition not related to
subject to § 718.306, affidavits (or usual coal mine work may include but pneumoconiosis, unless the evidence
equivalent sworn testimony) from are not limited to: establishes that pneumoconiosis was a
persons knowledgeable of the miner’s (i) The miner’s reduced ability to substantially contributing cause of
physical condition shall be sufficient to perform his or her customary duties death.
establish total or partial disability due to without help; or
(ii) The miner’s reduced ability to (5) Pneumoconiosis is a ‘‘substantially
pneumoconiosis if no medical or other contributing cause’’ of a miner’s death if
relevant evidence exists which perform his or her customary duties at
his or her usual levels of rapidity, it hastens the miner’s death.
addresses the miner’s pulmonary or
continuity or efficiency; or (d) To minimize the hardships to
respiratory condition; however, such a
(iii) The miner’s transfer by request or potentially entitled survivors due to the
determination shall not be based solely
assignment to less vigorous duties or to disruption of benefits upon the miner’s
upon the affidavits or testimony of the
duties in a less dusty part of the mine. death, survivors’ claims filed on or after
claimant and/or his or her dependents
January 1, 1982, shall be adjudicated on
who would be eligible for augmentation § 718.205 Death due to pneumoconiosis. an expedited basis in accordance with
of the claimant’s benefits if the claim (a) Benefits are provided to eligible the following procedures. The initial
were approved. survivors of a miner whose death was burden is upon the claimant, with the
(3) In a case involving a deceased due to pneumoconiosis. In order to assistance of the district director, to
miner whose claim was filed on or after receive benefits, the claimant must develop evidence which meets the
January 1, 1982, affidavits (or equivalent prove that: requirements of paragraph (c) of this
sworn testimony) from persons (1) The miner had pneumoconiosis section. Where the initial medical
knowledgeable of the miner’s physical (see § 718.202); evidence appears to establish that death
condition shall be sufficient to establish (2) The miner’s pneumoconiosis arose was due to pneumoconiosis, the
total disability due to pneumoconiosis if out of coal mine employment (see survivor will receive benefits unless the
no medical or other relevant evidence § 718.203); and weight of the evidence as subsequently
exists which addresses the miner’s (3) The miner’s death was due to
developed by the Department or the
pulmonary or respiratory condition; pneumoconiosis as provided by this
responsible operator establishes that the
however, such a determination shall not section.
(b) For the purpose of adjudicating miner’s death was not due to
be based solely upon the affidavits or pneumoconiosis as defined in paragraph
testimony of any person who would be survivors’ claims filed prior to January
1, 1982, death will be considered due to (c). However, no such benefits shall be
eligible for benefits (including found payable before the party
augmented benefits) if the claim were pneumoconiosis if any of the following
criteria is met: responsible for the payment of such
approved. benefits shall have had a reasonable
(4) Statements made before death by (1) Where competent medical
evidence established that the miner’s opportunity for the development of
a deceased miner about his or her rebuttal evidence. See § 725.414
physical condition are relevant and death was due to pneumoconiosis, or
(2) Where death was due to multiple concerning the operator’s opportunity to
shall be considered in making a develop evidence prior to an initial
determination as to whether the miner causes including pneumoconiosis and it
is not medically feasible to distinguish determination.
was totally disabled at the time of death.
(5) In the case of a living miner’s which disease caused death or the § 718.206 Effect of findings by persons or
claim, a finding of total disability due to extent to which pneumoconiosis agencies.
pneumoconiosis shall not be made contributed to the cause of death, or
(3) Where the presumption set forth at Decisions, statements, reports,
solely on the miner’s statements or opinions, or the like, of agencies,
testimony. § 718.304 is applicable, or
(4) Where either of the presumptions organizations, physicians or other
(e) In determining total disability to individuals, about the existence, cause,
set forth at § 718.303 or § 718.305 is
perform usual coal mine work, the and extent of a miner’s disability, or the
applicable and has not been rebutted.
following shall apply in evaluating the (5) Where the cause of death is cause of a miner’s death, are admissible.
miner’s employment activities: significantly related to or aggravated by If properly submitted, such evidence
(1) In the case of a deceased miner, pneumoconiosis. shall be considered and given the
employment in a mine at the time of (c) For the purpose of adjudicating weight to which it is entitled as
death shall not be conclusive evidence survivors’ claims filed on or after evidence under all the facts before the
that the miner was not totally disabled. January 1, 1982, death will be adjudication officer in the claim.
To disprove total disability, it must be considered to be due to pneumoconiosis
shown that at the time the miner died, if any of the following criteria is met: Subpart D—Presumptions Applicable
there were no changed circumstances of (1) Where competent medical to Eligibility Determinations
employment indicative of his or her evidence establishes that
reduced ability to perform his or her § 718.301 Establishing length of
pneumoconiosis was the cause of the employment as a miner.
usual coal mine work. miner’s death, or
(2) In the case of a living miner, proof (2) Where pneumoconiosis was a The presumptions set forth in
of current employment in a coal mine substantially contributing cause or §§ 718.302, 718.303, 718.305 and
shall not be conclusive evidence that factor leading to the miner’s death or 718.306 apply only if a miner worked in
the miner is not totally disabled unless where the death was caused by one or more coal mines for the number
it can be shown that there are no complications of pneumoconiosis, or of years required to invoke the
changed circumstances of employment (3) Where the presumption set forth at presumption. The length of the miner’s
indicative of his or her reduced ability § 718.304 is applicable. coal mine work history must be
computed as provided by 20 CFR (3) The Classification of the pulmonary impairment, for purposes of
725.101(a)(32). Pneumoconioses of the Union applying the presumption described in
Internationale Contra Cancer/Cincinnati this section, shall be made in
§ 718.302 Relationship of pneumoconiosis (1968) (which may be referred to as the accordance with § 718.204.
to coal mine employment.
‘‘UICC/Cincinnati (1968) (d) Where the cause of death or total
If a miner who is suffering or suffered Classification’’); or disability did not arise in whole or in
from pneumoconiosis was employed for (b) When diagnosed by biopsy or part out of dust exposure in the miner’s
ten years or more in one or more coal autopsy, yields massive lesions in the coal mine employment or the evidence
mines, there shall be a rebuttable lung; or establishes that the miner does not or
presumption that the pneumoconiosis (c) When diagnosed by means other did not have pneumoconiosis, the
arose out of such employment. (See than those specified in paragraphs (a) presumption will be considered
§ 718.203.) and (b) of this section, would be a rebutted. However, in no case shall the
§ 718.303 Death from a respirable disease. condition which could reasonably be presumption be considered rebutted on
expected to yield the results described the basis of evidence demonstrating the
(a)(1) If a deceased miner was
in paragraph (a) or (b) of this section existence of a totally disabling
employed for ten or more years in one
or more coal mines and died from a had diagnosis been made as therein obstructive respiratory or pulmonary
respirable disease, there shall be a described: Provided, however, That any disease of unknown origin.
diagnosis made under this paragraph (e) This section is not applicable to
rebuttable presumption that his or her
shall accord with acceptable medical any claim filed on or after January 1,
death was due to pneumoconiosis.
(2) Under this presumption, death procedures. 1982.
shall be found due to a respirable § 718.305 Presumption of § 718.306 Presumption of entitlement
disease in any case in which the pneumoconiosis. applicable to certain death claims.
evidence establishes that death was due (a) If a miner was employed for fifteen (a) In the case of a miner who died on
to multiple causes, including a years or more in one or more or before March 1, 1978, who was
respirable disease, and it is not underground coal mines, and if there is employed for 25 or more years in one
medically feasible to distinguish which a chest X-ray submitted in connection or more coal mines prior to June 30,
disease caused death or the extent to with such miner’s or his or her 1971, the eligible survivors of such
which the respirable disease contributed survivor’s claim and it is interpreted as miner whose claims have been filed
to the cause of death. negative with respect to the prior to June 30, 1982, shall be entitled
(b) The presumption of paragraph (a) requirements of § 718.304, and if other to the payment of benefits, unless it is
of this section may be rebutted by a evidence demonstrates the existence of established that at the time of death
showing that the deceased miner did a totally disabling respiratory or such miner was not partially or totally
not have pneumoconiosis, that his or pulmonary impairment, then there shall disabled due to pneumoconiosis.
her death was not due to be a rebuttable presumption that such Eligible survivors shall, upon request,
pneumoconiosis or that pneumoconiosis miner is totally disabled due to furnish such evidence as is available
did not contribute to his or her death. pneumoconiosis, that such miner’s with respect to the health of the miner
(c) This section is not applicable to at the time of death, and the nature and
death was due to pneumoconiosis, or
any claim filed on or after January 1, duration of the miner’s coal mine
that at the time of death such miner was
1982. employment.
totally disabled by pneumoconiosis. In
§ 718.304 Irrebuttable presumption of total the case of a living miner’s claim, a (b) For the purpose of this section, a
disability or death due to pneumoconiosis. spouse’s affidavit or testimony may not miner will be considered to have been
There is an irrebuttable presumption be used by itself to establish the ‘‘partially disabled’’ if he or she had
applicability of the presumption. The reduced ability to engage in work as
that a miner is totally disabled due to
Secretary shall not apply all or a portion defined in § 718.204(b).
pneumoconiosis, that a miner’s death
(c) In order to rebut this presumption
was due to pneumoconiosis or that a of the requirement of this paragraph that
the evidence must demonstrate that the
miner was totally disabled due to the miner work in an underground mine
miner’s ability to perform work as
pneumoconiosis at the time of death, if where it is determined that conditions
defined in § 718.204(b) was not reduced
such miner is suffering or suffered from of the miner’s employment in a coal
at the time of his or her death or that
a chronic dust disease of the lung mine were substantially similar to
the miner did not have pneumoconiosis.
which: conditions in an underground mine. (d) None of the following items, by
(a) When diagnosed by chest X-ray The presumption may be rebutted only itself, shall be sufficient to rebut the
(see § 718.202 concerning the standards by establishing that the miner does not, presumption:
for X-rays and the effect of or did not have pneumoconiosis, or that (1) Evidence that a deceased miner
interpretations of X-rays by physicians) his or her respiratory or pulmonary was employed in a coal mine at the time
yields one or more large opacities impairment did not arise out of, or in of death;
(greater than 1 centimeter in diameter) connection with, employment in a coal (2) Evidence pertaining to a deceased
and would be classified in Category A, mine. miner’s level of earnings prior to death;
B, or C in: (b) In the case of a deceased miner, (3) A chest X-ray interpreted as
(1) The ILO–U/C International where there is no medical or other negative for the existence of
Classification of Radiographs of the relevant evidence, affidavits of persons pneumoconiosis;
Pneumoconioses, 1971, or subsequent having knowledge of the miner’s (4) A death certificate which makes
revisions thereto; or condition shall be considered to be no mention of pneumoconiosis.
(2) The International Classification of sufficient to establish the existence of a
the Radiographs of the Pneumoconioses totally disabling respiratory or Appendix A To Part 718—Standards
of the International Labour Office, pulmonary impairment for purposes of for Administration and Interpretation
Extended Classification (1968) (which this section. of Chest Roentgenograms (X-Rays)
may be referred to as the ‘‘ILO (c) The determination of the existence The following standards are established in
Classification (1968)’’); or of a totally disabling respiratory or accordance with sections 402(f)(1)(D) and
413(b) of the Act. They were developed in (v) Intensifying screens shall be inspected (i) The instrument shall be accurate within
consultation with the National Institute for at least once a month and cleaned when +/¥50 ml or within +/¥3 percent of reading,
Occupational Safety and Health. These necessary by the method recommended by whichever is greater.
standards are promulgated for the guidance the manufacturer; (ii) The instrument shall be capable of
of physicians and medical technicians to (vi) All intensifying screens in a cassette measuring vital capacity from 0 to 7 liters
insure that uniform procedures are used in shall be of the same type and made by the BTPS.
administering and interpreting X-rays and same manufacturer; (iii) The instrument shall have a low
that the best available medical evidence will (vii) When using over 90 kV, a suitable grid inertia and offer low resistance to airflow
be submitted in connection with a claim for or other means of reducing scattered such that the resistance to airflow at 12 liters
black lung benefits. If it is established that radiation shall be used; per second must be less than 1.5 cm H20/
one or more standards have not been met, the (viii) The geometry of the radiographic liter/sec.
claims adjudicator may consider such fact in system shall insure that the central axis (ray) (iv) The instrument or user of the
determining the evidentiary weight to be of the primary beam is perpendicular to the instrument must have a means of correcting
assigned to the physician’s report of an X-ray. plane of the film surface and impinges on the volumes to body temperature saturated with
(1) Every chest roentgenogram shall be a water vapor (BTPS) under conditions of
center of the film.
single postero-anterior projection at full varying ambient spirometer temperatures and
(9) Radiographic processing:
inspiration on a 14 by 17 inch film. barometric pressures.
(i) Either automatic or manual film
Additional chest films or views shall be (v) The instrument used shall provide a
obtained if they are necessary for clarification processing is acceptable. A constant time-
temperature technique shall be meticulously tracing of flow versus volume (flow-volume
and classification. The film and cassette shall loop) which displays the entire maximum
be capable of being positioned both vertically employed for manual processing.
(ii) If mineral or other impurities in the inspiration and the entire maximum forced
and horizontally so that the chest expiration. The instrument shall, in addition,
roentgenogram will include both apices and processing water introduce difficulty in
obtaining a high-quality roentgenogram, a provide tracings of the volume versus time
costophrenic angles. If a miner is too large to tracing (spirogram) derived electronically
permit the above requirements, then a suitable filter or purification system shall be
used. from the flow-volume loop. Tracings are
projection with minimum loss of necessary to determine whether maximum
costophrenic angle shall be made. (10) Before the miner is advised that the
examination is concluded, the roentgenogram inspiratory and expiratory efforts have been
(2) Miners shall be disrobed from the waist obtained during the FVC maneuver. If
up at the time the roentgenogram is given. shall be processed and inspected and
accepted for quality by the physician, or if maximum voluntary ventilation is measured,
The facility shall provide a dressing area and, the tracing shall record the individual
for those miners who wish to use one, the the physician is not available, acceptance
may be made by the radiologic technologist. breaths volumes versus time.
facility shall provide a clean gown. Facilities
In a case of a substandard roentgenogram, (vi) The instrument shall be capable of
shall be heated to a comfortable temperature.
another shall be made immediately. accumulating volume for a minimum of 10
(3) Roentgenograms shall be made only
(11) An electric power supply shall be used seconds after the onset of exhalation.
with a diagnostic X-ray machine having a
(vii) The instrument must be capable of
rotating anode tube with a maximum of a 2 which complies with the voltage, current,
mm source (focal spot). and regulation specified by the manufacturer being calibrated in the field with respect to
(4) Except as provided in paragraph (5), of the machine. the FEV1. The volume calibration shall be
roentgenograms shall be made with units (12) A densitometric test object may be accomplished with a 3 L calibrating syringe
having generators which comply with the required on each roentgenogram for an and should agree to within 1 percent of a 3
following: (a) the generators of existing objective evaluation of film quality at the L calibrating volume. The linearity of the
roentgenographic units acquired by the discretion of the Department of Labor. instrument must be documented by a record
examining facility prior to July 27, 1973, (13) Each roentgenogram made under this of volume calibrations at three different flow
shall have a minimum rating of 200 mA at Appendix shall be permanently and legibly rates of approximately 3 L/6 sec, 3 L/3 sec,
100 kVp; (b) generators of units acquired marked with the name and address of the and 3 L/sec.
subsequent to that date shall have a facility at which it is made, the miner’s DOL (viii) For measuring maximum voluntary
minimum rating of 300 mA at 125 kVp. claim number, the date of the roentgenogram, ventilation (MVV) the instrument shall have
Note: A generator with a rating of 150 kVp and left and right side of film. No other a response which is flat within +/¥10
is recommended. identifying markings shall be recorded on the percent up to 4 Hz at flow rates up to 12
roentgenogram. liters per second over the volume range.
(5) Roentgenograms made with battery- (ix) The spirogram shall be recorded at a
powered mobile or portable equipment shall speed of at least 20 mm/sec and a volume
be made with units having a minimum rating Appendix B to Part 718–Standards for
Administration and Interpretation of excursion of at least 10mm/L. Calculation of
of 100 mA at 110 kVp at 500 Hz, or 200 mA
Pulmonary Function Tests. Tables B1, the FEVl from the flow-volume loop is not
at 110 kVp at 60 Hz.
B2, B3, B4, B5, B6. acceptable. Original tracings shall be
(6) Capacitor discharge, and field emission
submitted.
units may be used.
(7) Roentgenograms shall be given only The following standards are established in (2) The administration of pulmonary
with equipment having a beam-limiting accordance with section 402(f)(1)(D) of the function tests shall conform to the following
device which does not cause large unexposed Act. They were developed in consultation criteria:
boundaries. The use of such a device shall be with the National Institute for Occupational (i) Tests shall not be performed during or
discernible from an examination of the Safety and Health (NIOSH). These standards soon after an acute respiratory illness.
roentgenogram. are promulgated for the guidance of (ii) For the FEV1 and FVC, use of a nose
(8) To insure high quality chest physicians and medical technicians to insure clip is required. The procedures shall be
roentgenograms: that uniform procedures are used in explained in simple terms to the patient who
(i) The maximum exposure time shall not administering and interpreting ventilatory shall be instructed to loosen any tight
exceed 1⁄20 of a second except that with function tests and that the best available clothing and stand in front of the apparatus.
single phase units with a rating less than 300 medical evidence will be submitted in The subject may sit, or stand, but care should
mA at 125 kVp and subjects with chest over support of a claim for black lung benefits. If be taken on repeat testing that the same
28 cm postero-anterior, the exposure may be it is established that one or more standards position be used. Particular attention shall be
increased to not more than 1⁄10 of a second; have not been met, the claims adjudicator given to insure that the chin is slightly
(ii) The source or focal spot to film may consider such fact in determining the elevated with the neck slightly extended. The
distance shall be at least 6 feet; evidentiary weight to be given to the results subject shall be instructed to expire
(iii) Only medium-speed film and medium- of the ventilatory function tests. completely, momentarily hold his breath,
speed intensifying screens shall be used; (1) Instruments to be used for the place the mouthpiece in his mouth and close
(iv) Film-screen contact shall be administration of pulmonary function tests the mouth firmly about the mouthpiece to
maintained and verified at 6-month or shall be approved by NIOSH and shall ensure no air leak. The subject will than
shorter intervals; conform to the following criteria: make a maximum inspiration from the
instrument and when maximum inspiration (C) Has an obstructed mouthpiece or a leak Arterial PO2
has been attained, without interruption, blow around the mouthpiece (obstruction due to equal to or
as hard, fast and completely as possible for tongue being placed in front of mouthpiece, Arterial PCO2 (mm Hg) less than (mm
at least 7 seconds or until a plateau has been false teeth falling in front of mouthpiece, Hg)
attained in the volume-time curve with no etc.); or
detectable change in the expired volume (D) Has an excessive variability between 29 .......................................... 71
during the last 2 seconds of maximal the three acceptable curves. The variation 30 .......................................... 70
expiratory effort. A minimum of three flow- between the two largest MVVs of the three 31 .......................................... 69
volume loops and derived spirometric satisfactory tracings shall not exceed 10 32 .......................................... 68
tracings shall be carried out. The patient percent. 33 .......................................... 67
shall be observed throughout the study for (iv) A calibration check shall be performed 34 .......................................... 66
compliance with instructions. Inspiration on the instrument each day before use, using 35 .......................................... 65
and expiration shall be checked visually for a volume source of at least three liters, 36 .......................................... 64
reproducibility. The effort shall be judged accurate to within +/¥1 percent of full scale. 37 .......................................... 63
unacceptable when the patient: The volume calibration shall be performed in 38 .......................................... 62
(A) Has not reached full inspiration accordance with the method described in 39 .......................................... 61
preceding the forced expiration; or paragraph (1)(vii) of this Appendix. Accuracy 40–49 .................................... 60
(B) Has not used maximal effort during the of the time measurement used in determining Above 50 .............................. (1)
entire forced expiration; or the FEV1 shall be checked using the 1 Any value.
(C) Has not continued the expiration for manufacturer’s stated procedure and shall be
least 7 sec. or until an obvious plateau for at within +/¥3 percent of actual. The (2) For arterial blood-gas studies performed
least 2 sec. in the volume-time curve has procedure described in the Appendix shall at test sites 3,000 to 5,999 feet above sea
occurred; or be performed as well as any other procedures level:
(D) Has coughed or closed his glottis; or suggested by the manufacturer of the
(E) Has an obstructed mouthpiece or a leak spirometer being used. Arterial PO2
around the mouthpiece (obstruction due to (v)(A) The first step in evaluating a equal to or
Arterial PCO2 (mm Hg)
tongue being placed in front of mouthpiece, spirogram for the FVC and FEV1 shall be to less than (mm
false teeth falling in front of mouthpiece, determine whether or not the patient has Hg)
etc.); or performed the test properly or as described
in (2)(ii) of this Appendix. The largest 25 or below ........................... 70
(F) Has an unsatisfactory start of
recorded FVC and FEV1, corrected to BTPS, 26 .......................................... 69
expiration, one characterized by excessive
shall be used in the analysis. 27 .......................................... 68
hesitation (or false starts). Peak flow should 28 .......................................... 67
be attained at the start of expiration and the (B) Only MVV maneuvers which
demonstrate consistent effort for at least 12 29 .......................................... 66
volume-time tracing (spirogram) should have 30 .......................................... 65
a smooth contour revealing gradually seconds shall be considered acceptable. The
31 .......................................... 64
decreasing flow throughout expiration; or largest accumulated volume for a 12 second
32 .......................................... 63
(G) Has an excessive variability between period corrected to BTPS and multiplied by
33 .......................................... 62
the three acceptable curves. The variation five or the largest accumulated volume for a
34 .......................................... 61
between the two largest FEV1’s of the three 15 second period corrected to BTPS and
35 .......................................... 60
acceptable tracings should not exceed 5 multiplied by four is to be reported as the
36 .......................................... 59
percent of the largest FEV1 or 100 ml, MVV.
37 .......................................... 58
whichever is greater. As individuals with * * * * * 38 .......................................... 57
obstructive disease or rapid decline in lung 39 .......................................... 56
function will be less likely to achieve this Appendix C to Part 718—Blood-Gas 40–49 .................................... 55
degree of reproducibility, tests not meeting Tables Above 50 .............................. (2)
this criterion may still be submitted for The following tables set forth the values to 2 Any value.
consideration in support of a claim for black be applied in determining whether total
lung benefits. Failure to meet this standard disability may be established in accordance (3) For arterial blood-gas studies performed
should be clearly noted in the test report by with §§ 718.204(b)(2)(ii) and 718.305(a), (c). at test sites 6,000 feet or more above sea
the physician conducting or reviewing the The values contained in the tables are level:
test. indicative of impairment only. They do not
(iii) For the MVV, the subject shall be establish a degree of disability except as Arterial PO2
instructed before beginning the test that he or provided in §§ 718.204(b)(2)(ii) and equal to or
Arterial PCO2 (mm Hg)
she will be asked to breathe as deeply and 718.305(a), (c) of this subchapter, nor do they less than (mm
as rapidly as possible for approximately 15 establish standards for determining normal Hg)
seconds. The test shall be performed with the alveolar gas exchange values for any
subject in the standing position, if possible. 25 or below ........................... 65
particular individual. Tests shall not be
Care shall be taken on repeat testing that the 26 .......................................... 64
performed during or soon after an acute
same position be used. The subject shall 27 .......................................... 63
respiratory or cardiac illness. A miner who
breathe normally into the mouthpiece of the 28 .......................................... 62
meets the following medical specifications 29 .......................................... 61
apparatus for 10 to 15 seconds to become shall be found to be totally disabled, in the
accustomed to the system. The subject shall 30 .......................................... 60
absence of rebutting evidence, if the values 31 .......................................... 59
then be instructed to breathe as deeply and specified in one of the following tables are
as rapidly as possible, and shall be 32 .......................................... 58
met: 33 .......................................... 57
continually encouraged during the remainder (1) For arterial blood-gas studies performed
of the maneuver. Subject shall continue the 34 .......................................... 56
at test sites up to 2,999 feet above sea level: 35 .......................................... 55
maneuver for 15 seconds. At least 5 minutes
of rest shall be allowed between maneuvers. 36 .......................................... 54
Arterial PO2 37 .......................................... 53
At least three MVV’s shall be carried out. equal to or
(But see § 718.103(b).) During the maneuvers Arterial PCO2 (mm Hg) 38 .......................................... 52
less than (mm 39 .......................................... 51
the patient shall be observed for compliance Hg)
40–49 .................................... 50
with instructions. The effort shall be judged
25 or below ........................... 75 Above 50 .............................. (3)
unacceptable when the patient:
(A) Has not maintained consistent effort for 26 .......................................... 74 3 Any value.
at least 12 to 15 seconds; or 27 .......................................... 73
(B) Has coughed or closed his glottis; or 28 .......................................... 72 3. Part 722 is revised as follows:
PART 722—CRITERIA FOR providing adequate coverage for total contrary determination, provides
DETERMINING WHETHER STATE disability or death due to adequate coverage for pneumoconiosis.
WORKERS’ COMPENSATION LAWS pneumoconiosis. Each such request
PROVIDE ADEQUATE COVERAGE shall include a copy of the State Period
workers’ compensation law and any State com-
FOR PNEUMOCONIOSIS AND LISTING mencing
OF APPROVED STATE LAWS other pertinent State laws; a copy of any
regulations, either proposed or None ............................................. ................
Sec. promulgated, implementing such laws;
722.1 Purpose. and a copy of any relevant
722.2 Definitions. 4. Part 725 is revised as follows:
722.3 General criteria; inclusion in and
administrative or court decision
removal from the Secretary’s list. interpreting such laws or regulations, or, PART 725—CLAIMS FOR BENEFITS
722.4 The Secretary’s list. if such decisions are published in a UNDER PART C OF TITLE IV OF THE
readily available report, a citation to FEDERAL MINE SAFETY AND HEALTH
Authority: 5 U.S.C. 301, Reorganization
Plan No. 6 of 1950, 15 FR 3174, 30 U.S.C. 901
such decision. ACT, AS AMENDED
et seq., 921, 932, 936; 33 U.S.C. 901 et seq., (b) Upon receipt of a request that a
Subpart A—General
Secretary’s Order 7–87, 52 FR 48466, State be included on the Secretary’s list,
Employment Standards Order No. 90–02. the Secretary shall include the State on Sec.
the list if he finds that the State’s 725.1 Statutory provisions.
§ 722.1 Purpose. 725.2 Purpose and applicability of this part.
workers’ compensation law guarantees 725.3 Contents of this part.
Section 421 of the Black Lung the payment of monthly and medical 725.4 Applicability of other parts in this
Benefits Act provides that a claim for benefits to all persons who would be title.
benefits based on the total disability or entitled to such benefits under the Black 725.101 Definitions and use of terms.
death of a coal miner due to Lung Benefits Act at the time of the 725.102 Disclosure of program information.
pneumoconiosis must be filed under a request, at a rate no less than that 725.103 Burden of proof.
State workers’ compensation law where provided by the Black Lung Benefits Subpart B—Persons Entitled to Benefits,
such law provides adequate coverage for Act. The criteria used by the Secretary Conditions, and Duration of Entitlement
pneumoconiosis. A State workers’ in making such determination shall 725.201 Who is entitled to benefits;
compensation law may be deemed to include, but shall not be limited to, the contents of this subpart.
provide adequate coverage only when it criteria set forth in section 421(b)(2) of
is included on a list of such laws the Act. Conditions and Duration of Entitlement:
maintained by the Secretary. The Miner
(c) The Secretary may require each
purpose of this part is to set forth the State included on the list to submit 725.202 Miner defined; conditions of
procedures and criteria for inclusion on entitlement, miner.
reports detailing the extent to which the 725.203 Duration and cessation of
that list, and to provide that list. State’s workers’ compensation laws, as entitlement, miner.
§ 722.2 Definitions. reflected by statute, regulation, or
administrative or court decision, Conditions and Duration of Entitlement:
(a) The definitions and use of terms Miner’s Dependents (Augmented Benefits)
contained in subpart A of part 725 of continues to meet the requirements of
paragraph (b) of this section. If the 725.204 Determination of relationship;
this title shall be applicable to this part. spouse.
(b) For purposes of this part, the Secretary concludes that the State’s
725.205 Determination of dependency;
following definitions apply: workers’ compensation law does not spouse.
(1) State agency means, with respect provide adequate coverage at any time, 725.206 Determination of relationship;
to any State, the agency, department or either because of changes to the State divorced spouse.
officer designated by the workers’ workers’ compensation law or the Black 725.207 Determination of dependency;
compensation law of the State to Lung Benefits Act, he shall remove the divorced spouse.
State from the Secretary’s list after 725.208 Determination of relationship;
administer such law. In any case in child.
which more than one agency providing the State with notice of such
removal and an opportunity to be heard. 725.209 Determination of dependency;
participates in the administration of a child.
State workers’ compensation law, the § 722.4 The Secretary’s list. 725.210 Duration of augmented benefits.
Governor of the State may designate 725.211 Time of determination of
(a) The Secretary has determined that relationship and dependency of spouse
which of the agencies shall be the State
publication of the Secretary’s list in the or child for purposes of augmentation of
agency for purposes of this part.
(2) The Secretary’s list means the list Code of Federal Regulations is benefits.
published by the Secretary of Labor in appropriate. Accordingly, in addition to
Conditions and Duration of Entitlement:
the Federal Register (see § 722.4) its publication in the Federal Register Miner’s Survivors
containing the names of those States as required by section 421 of the Black
725.212 Conditions of entitlement;
which have in effect a workers’ Lung Benefits Act, the list shall also
surviving spouse or surviving divorced
compensation law which provides appear in paragraph (b) of this section. spouse.
adequate coverage for death or total (b) Upon review of all requests filed 725.213 Duration of entitlement; surviving
disability due to pneumoconiosis. with the Secretary under section 421 of spouse or surviving divorced spouse.
the Black Lung Benefits Act and this 725.214 Determination of relationship;
§ 722.3 General criteria; inclusion in and part, and examination of the workers’ surviving spouse.
removal from the Secretary’s list. compensation laws of the States making 725.215 Determination of dependency;
(a) The Governor of any State or any such requests, the Secretary has surviving spouse.
725.216 Determination of relationship;
duly authorized State agency may, at determined that the workers’ surviving divorced spouse.
any time, request that the Secretary compensation law of each of the 725.217 Determination of dependency;
include such State’s workers’ following listed States, for the period surviving divorced spouse.
compensation law on his list of those from the date shown in the list until 725.218 Conditions of entitlement; child.
State workers’ compensation laws such date as the Secretary may make a 725.219 Duration of entitlement; child.
725.220 Determination of relationship; 725.406 Medical examinations and tests. Subpart H—Payment of Benefits
child. 725.407 Identification and notification of
725.221 Determination of dependency; responsible operator. General Provisions
child. 725.408 Operator’s response to notification. 725.501 Payment provisions generally.
725.222 Conditions of entitlement; parent, 725.409 Denial of a claim by reason of 725.502 When benefit payments are due;
brother or sister. abandonment. manner of payment.
725.223 Duration of entitlement; parent, 725.410 Submission of additional evidence. 725.503 Date from which benefits are
brother or sister. 725.411 Initial adjudication in Trust Fund payable.
725.224 Determination of relationship; cases. 725.504 Payments to a claimant employed
parent, brother or sister. 725.412 Operator’s response. as a miner.
725.225 Determination of dependency; 725.413 [Reserved]. 725.505 Payees.
parent, brother or sister. 725.414 Development of evidence. 725.506 Payment on behalf of another;
725.226 ‘‘Good cause’’ for delayed filing of 725.415 Action by the district director after ‘‘legal guardian’’ defined.
proof of support. development of evidence. 725.507 Guardian for minor or
725.227 Time of determination of 725.416 Conferences. incompetent.
relationship and dependency of 725.417 Action at the conclusion of 725.510 Representative payee.
survivors. conference. 725.511 Use and benefit defined.
725.228 Effect of conviction of felonious 725.418 Proposed decision and order. 725.512 Support of legally dependent
and intentional homicide on entitlement 725.419 Response to proposed decision and spouse, child, or parent.
to benefits. order. 725.513 Accountability; transfer.
725.420 Initial determinations. 725.514 Certification to dependent of
Terms Used in this Subpart 725.421 Referral of a claim to the Office of augmentation portion of benefit.
725.229 Intestate personal property. Administrative Law Judges. 725.515 Assignment and exemption from
725.230 Legal impediment. 725.422 Legal assistance. claims of creditors.
725.231 Domicile. 725.423 Extensions of time.
725.232 Member of the same household— Benefit Rates
Subpart F—Hearings 725.520 Computation of benefits.
’’living with,’’ ‘‘living in the same
household,’’ and ‘‘living in the miner’s 725.450 Right to a hearing. 725.521 Commutation of payments; lump
household,’’ defined. 725.451 Request for hearing. sum awards.
725.233 Support and contributions. 725.452 Type of hearing; parties. 725.522 Payments prior to final
725.453 Notice of hearing. adjudication.
Subpart C—Filing of Claims 725.454 Time and place of hearing; transfer
725.301 Who may file a claim. of cases. Special Provisions for Operator Payments
725.302 Evidence of authority to file a 725.455 Hearing procedures; generally. 725.530 Operator payments; generally.
claim on behalf of another. 725.456 Introduction of documentary 725.531 Receipt for payment.
725.303 Date and place of filing of claims. evidence. 725.532 Suspension, reduction, or
725.304 Forms and initial processing. 725.457 Witnesses. termination of payments.
725.305 When a written statement is 725.458 Depositions; interrogatories.
725.459 Witness fees. Increases and Reductions of Benefits
considered a claim.
725.306 Withdrawal of a claim. 725.460 Consolidated hearings. 725.533 Modification of benefit amounts;
725.307 Cancellation of a request for 725.461 Waiver of right to appear and general.
withdrawal. present evidence. 725.534 Reduction of State benefits.
725.308 Time limits for filing claims. 725.462 Withdrawal of controversion of 725.535 Reductions; receipt of State or
725.309 Additional claims; effect of a prior issues set for formal hearing; effect. Federal benefit.
denial of benefits. 725.463 Issues to be resolved at hearing; 725.536 Reductions; excess earnings.
725.310 Modification of awards and new issues. 725.537 Reductions; retroactive effect of an
denials. 725.464 Record of hearing. additional claim for benefits.
725.311 Communications with respect to 725.465 Dismissals for cause. 725.538 Reductions; effect of augmentation
claims; time computations. 725.466 Order of dismissal. of benefits based on subsequent
725.475 Termination of hearings. qualification of individual.
Subpart D—Adjudication Officers; Parties 725.476 Issuance of decision and order. 725.539 More than one reduction event.
and Representatives 725.477 Form and contents of decision and
Overpayments; Underpayments
725.350 Who are the adjudication officers? order.
725.351 Powers of adjudication officers. 725.478 Filing and service of decision and 725.540 Overpayments.
725.352 Disqualification of adjudication order. 725.541 Notice of waiver of adjustment or
officer. 725.479 Finality of decisions and orders. recovery of overpayment.
725.360 Parties to proceedings 725.480 Modification of decisions and 725.542 When waiver of adjustment or
725.361 Party amicus curiae. orders. recovery may be applied.
725.362 Representation of parties. 725.481 Right to appeal to the Benefits 725.543 Standards for waiver of adjustment
725.363 Qualification of representative. Review Board. or recovery.
725.364 Authority of representative. 725.482 Judicial review. 725.544 Collection and compromise of
725.365 Approval of representative’s fees; 725.483 Costs in proceedings brought claims for overpayment.
lien against benefits. without reasonable grounds. 725.545 Underpayments.
725.366 Fees for representatives. 725.546 Relation to provisions for
725.367 Payment of a claimant’s attorney’s Subpart G—Responsible Coal Mine reductions or increases.
fee by responsible operator or fund. Operators 725.547 Applicability of overpayment and
725.490 Statutory provisions and scope. underpayment provisions to operator or
Subpart E—Adjudication of Claims by the 725.491 Operator defined. carrier.
District Director 725.492 Successor operator defined. 725.548 Procedures applicable to
725.401 Claims development—general. 725.493 Employment relationship defined. overpayments and underpayments
725.402 Approved State workers’ 725.494 Potentially liable operators.
compensation law. 725.495 Criteria for determining a Subpart I—Enforcement of Liability;
725.403 [Reserved]. responsible operator. Reports
725.404 Development of evidence—general 725.496 Special claims transferred to the 725.601 Enforcement generally.
725.405 Development of medical evidence; fund. 725.602 Reimbursement of the fund.
scheduling of medical examinations and 725.497 Procedures in special claims 725.603 Payments by the fund on behalf of
tests. transferred to the fund. an operator; liens.
725.604 Enforcement of final awards. of a miner who was receiving benefits Lung Benefits Reform Act of 1977, the
725.605 Defaults. under part B of title IV of the Act at the right to have his or her claim reviewed
725.606 Security for the payment of time of death, if filed within 6 months on the basis of the 1977 amendments to
benefits. of the miner’s death, are also the Act, and under certain
725.607 Payments in addition to
compensation.
adjudicated and paid by the Social circumstances to submit new evidence
725.608 Interest. Security Administration. in support of the claim.
725.609 Enforcement against other persons. (c) Section 415. Claims filed by a (f) Changes made by the Black Lung
725.620 Failure to secure benefits; other miner between July 1 and December 31, Benefits Reform Act of 1977. In addition
penalties. 1973, are adjudicated and paid under to those changes which are reflected in
725.621 Reports. section 415. Section 415 provides that a paragraphs (a) through (e) of this
claim filed between the appropriate section, the Black Lung Benefits Reform
Subpart J—Medical Benefits and Vocational
Rehabilitation dates shall be filed with and adjudicated Act of 1977 contains a number of
by the Secretary of Labor under certain significant amendments to the Act’s
725.701 Availability of medical benefits. incorporated provisions of the standards for determining eligibility for
725.702 Claims for medical benefits only
under section 11 of the Reform Act.
Longshoremen’s and Harbor Workers’ benefits. Among these are:
725.703 Physician defined. Compensation Act (33 U.S.C. 901 et (1) A provision which clarifies the
725.704 Notification of right to medical seq.). A claim approved under section definition of ‘‘pneumoconiosis’’ to
benefits; authorization of treatment. 415 is paid under part B of title IV of include any ‘‘chronic dust disease of the
725.705 Arrangements for medical care. the Act for periods of eligibility lung and its sequelae, including
725.706 Authorization to provide medical occurring between July 1 and December respiratory and pulmonary
services. 31, 1973, by the Secretary of Labor and impairments, arising out of coal mine
725.707 Reports of physicians and for periods of eligibility thereafter, is employment’’;
supervision of medical care. paid by a coal mine operator which is (2) A provision which defines
725.708 Disputes concerning medical determined liable for the claim or the ‘‘miner’’ to include any person who
benefits.
725.710 Objective of vocational
Black Lung Disability Trust Fund if no works or has worked in or around a coal
rehabilitation. operator is identified or if the miner’s mine or coal preparation facility, and in
725.711 Requests for referral to vocational last coal mine employment terminated coal mine construction or coal
rehabilitation assistance. prior to January 1, 1970. An operator transportation under certain
which may be found liable for a section circumstances;
Authority: 5 U.S.C. 301, Reorganization
Plan No. 6 of 1950, 15 FR 3174, 30 U.S.C. 901 415 claim is notified of the claim and (3) A provision which limits the
et seq., 921, 932, 936; 33 U.S.C. 901 et seq., allowed to participate fully in the denial of a claim solely on the basis of
42 U.S.C. 405, Secretary’s Order 7–87, 52 FR adjudication of such claim. A claim employment in a coal mine;
48466, Employment Standards Order No. 90– filed under section 415 is for all (4) A provision which authorizes the
02. purposes considered as if it were a part Secretary of Labor to establish standards
C claim (see paragraph (d) of this and develop criteria for determining
Subpart A—General section) and the provisions of part C of total disability or death due to
title IV of the Act are fully applicable to pneumoconiosis with respect to a part C
§ 725.1 Statutory provisions.
a section 415 claim except as is claim;
(a) General. Title IV of the Federal otherwise provided in section 415. (5) A new presumption which
Mine Safety and Health Act of 1977, as (d) Part C. Claims filed by a miner or requires the payment of benefits to the
amended by the Black Lung Benefits survivor on or after January 1, 1974, are survivors of a miner who was employed
Reform Act of 1977, the Black Lung filed, adjudicated, and paid under the for 25 or more years in the mines under
Benefits Revenue Act of 1977, the Black provisions of part C of title IV of the certain conditions;
Lung Benefits Revenue Act of 1981 and Act. Part C requires that a claim filed on (6) Provisions relating to the treatment
the Black Lung Benefits Amendments of or after January 1, 1974, shall be filed to be accorded a survivor’s affidavit,
1981, provides for the payment of under an applicable approved State certain X-ray interpretations, and
benefits to a coal miner who is totally workers’ compensation law, or if no certain autopsy reports in the
disabled due to pneumoconiosis (black such law has been approved by the development of a claim; and
lung disease) and to certain survivors of Secretary of Labor, the claim may be (7) Other clarifying, procedural, and
a miner who dies due to filed with the Secretary of Labor under technical amendments.
pneumoconiosis. For claims filed prior section 422 of the Act. Claims filed with (g) Changes made by the Black Lung
to January 1, 1982, certain survivors the Secretary of Labor under part C are Benefits Revenue Act of 1977. The Black
could receive benefits if the miner was processed and adjudicated by the Lung Benefits Revenue Act of 1977
totally (or for claims filed prior to June Secretary and paid by a coal mine established the Black Lung Disability
30, 1982, in accordance with section operator. If the miner’s last coal mine Trust Fund which is financed by a
411(c)(5) of the Act, partially) disabled employment terminated before January specified tax imposed upon each ton of
due to pneumoconiosis, or if the miner 1, 1970, or if no responsible operator coal (except lignite) produced and sold
died due to pneumoconiosis. can be identified, benefits are paid by or used in the United States after March
(b) Part B. Part B of title IV of the Act the Black Lung Disability Trust Fund. 31, 1978. The Secretary of the Treasury
provided that all claims filed between Claims adjudicated under part C are is the managing trustee of the fund and
December 30, 1969, and June 30, 1973, subject to certain incorporated benefits are paid from the fund upon the
are to be filed with, processed, and paid provisions of the Longshoremen’s and direction of the Secretary of Labor. The
by the Secretary of Health, Education, Harbor Workers’ Compensation Act. fund was made liable for the payment
and Welfare through the Social Security (e) Section 435. Section 435 of the Act of all claims approved under section
Administration; claims filed by the affords each person who filed a claim 415, part C and section 435 of the Act
survivor of a miner before January 1, for benefits under part B, section 415, or for all periods of eligibility occurring on
1974, or within 6 months of the miner’s part C, and whose claim had been or after January 1, 1974, with respect to
death if death occurred before January 1, denied or was still pending as of March claims where the miner’s last coal mine
1974, and claims filed by the survivor 1, 1978, the effective date of the Black employment terminated before January
1, 1970, or where individual liability (i) Changes made by the Black Lung Act. To the extent appropriate,
can not be assessed against a coal mine Benefits Revenue Act of 1981. The Black therefore, these provisions also apply to
operator due to bankruptcy, insolvency, Lung Benefits Revenue Act of 1981 part C. In certain cases, the Department
or the like. The fund was also temporarily doubles the amount of the has varied the terms of the Social
authorized to pay certain claims which tax upon coal until the fund shall have Security Act provisions to accommodate
a responsible operator has refused to repaid all advances received from the the unique needs of the black lung
pay within a reasonable time, and to United States Treasury and the interest benefits program. Parts of the Longshore
seek reimbursement from such operator. on all such advances. The fund is also and Harbor Workers’ Compensation Act
The purpose of the fund and the Black made liable for the payment of certain are also incorporated into part C. Where
Lung Benefits Revenue Act of 1977 was claims previously denied under the the incorporated provisions of the two
to insure that coal mine operators, or the 1972 version of the Act and acts are inconsistent, the Department
coal industry, will fully bear the cost of subsequently approved under section has exercised its broad regulatory
black lung disease for the present time 435 and for the reimbursement of powers to choose the extent to which
and in the future. The Black Lung operators and insurers for benefits each incorporation is appropriate.
Benefits Revenue Act of 1977 also previously paid by them on such claims. Finally, Section 422(g), contained in
contained other provisions relating to With respect to claims filed on or after part C of the Act, incorporates 42 U.S.C.
the fund and authorized a coal mine January 1, 1982, the fund’s 403(b)–(l).
operator to establish its own trust fund authorization for the payment of interim
for the payment of certain claims. benefits is limited to the payment of § 725.2 Purpose and applicability of this
prospective benefits only. These part.
(h) Changes made by the Black Lung
Benefits Amendments of 1981. In changes also define the rates of interest (a) This part sets forth the procedures
addition to the change reflected in to be paid to and by the fund. to be followed and standards to be
paragraph (a) of this section, the Black (j) Longshoremen’s Act provisions. applied in filing, processing,
Lung Benefits Amendments of 1981 The adjudication of claims filed under adjudicating, and paying claims filed
made a number of significant changes in sections 415, 422 and 435 of the Act is under part C of title IV of the Act.
the Act’s standards for determining governed by various procedural and (b) This part applies to all claims filed
eligibility for benefits and concerning other provisions contained in the under part C of title IV of the Act on or
the payment of such benefits. The Longshoremen’s and Harbor Workers’ after August 18, 1978 and shall also
following changes are all applicable to Compensation Act (LHWCA), as apply to claims that were pending on
claims filed on or after January 1, 1982: amended from time to time, which are August 18, 1978.
(1) The Secretary of Labor may re-read incorporated within the Act by sections
415 and 422. The incorporated LHWCA (c) The provisions of this part reflect
any X-ray submitted in support of a revisions that became effective on
provisions are applicable under the Act
claim and may rely upon a second Janaury 19, 2001. This part applies to all
except as is otherwise provided by the
opinion concerning such an X-ray as a claims filed, and all benefits payments
Act or as provided by regulations of the
means of auditing the validity of the made, after January 19, 2001. With the
Secretary. Although occupational
claim; exception of the following sections, this
disease benefits are also payable under
(2) The rebuttable presumption that part shall also apply to the adjudication
the LHWCA, the primary focus of the
the death of a miner with ten or more of claims that were pending on January
procedures set forth in that Act is upon
years employment in the coal mines, a time definite of traumatic injury or 19, 2001: §§ 725.309, 725.310, 725.351,
who died of a respirable disease, was death. Because of this and other 725.360, 725.367, 725.406, 725.407,
due to pneumoconiosis is no longer significant differences between a black 725.408, 725.409, 725.410, 725.411,
applicable; lung and longshore claim, it is 725.412, 725.414, 725.415, 725.416,
(3) The rebuttable presumption that determined, in accordance with the 725.417, 725.418, 725.421(b), 725.423,
the total disability of a miner with authority set forth in section 422 of the 725.454, 725.456, 725.457, 725.458,
fifteen or more years employment in the Act, that certain of the incorporated 725.459, 725.465, 725.491, 725.492,
coal mines, who has demonstrated a procedures prescribed by the LHWCA 725.493, 725.494, 725.495, 725.547. The
totally disabling respiratory or must be altered to fit the circumstances version of those sections set forth in 20
pulmonary impairment, is due to ordinarily confronted in the CFR, parts 500 to end, edition revised as
pneumoconiosis is no longer applicable; adjudication of a black lung claim. The of April 1, 1999, apply to the
(4) In the case of deceased miners, changes made are based upon the adjudications of claims that were
where no medical or other relevant Department’s experience in processing pending on January 19, 2001. For
evidence is available, only affidavits black lung claims since July 1, 1973, purposes of construing the provisions of
from persons not eligible to receive and all such changes are specified in this section, a claim shall be considered
benefits as a result of the adjudication this part or part 727 of this subchapter pending on January 19, 2001 if it was
of the claim will be considered (see § 725.4(d)). No other departure from not finally denied more than one year
sufficient to establish entitlement to the incorporated provisions of the prior to that date.
benefits; LHWCA is intended.
(5) Unless the miner was found § 725.3 Contents of this part.
(k) Social Security Act provisions.
entitled to benefits as a result of a claim Section 402 of Part A of the Act (a) This subpart describes the
filed prior to January 1, 1982, benefits incorporates certain definitional statutory provisions which relate to
are payable on survivors’ claims filed on provisions from the Social Security Act, claims considered under this part, the
and after January 1, 1982, only when the 42 U.S.C. 301 et seq. Section 430 purpose and scope of this part,
miner’s death was due to provides that the 1972, 1977 and 1981 definitions and usages of terms
pneumoconiosis; amendments to part B of the Act shall applicable to this part, and matters
(6) Benefits payable under this part also apply to part C ‘‘to the extent relating to the availability of
are subject to an offset on account of appropriate.’’ Sections 412 and 413 information collected by the Department
excess earnings by the miner; and incorporate various provisions of the of Labor in connection with the
(7) Other technical amendments. Social Security Act into part B of the processing of claims.
(b) Subpart B contains criteria for 717, and 720 of this subchapter 1935, c. 531, 49 Stat. 620, 42 U.S.C.
determining who may be found entitled (formerly contained in 20 CFR, parts 301–431, as amended from time to time.
to benefits under this part and other 500 to end, edition revised as of April (4) Administrative law judge means a
provisions relating to the conditions and 1, 1978), which established the person qualified under 5 U.S.C. 3105 to
duration of eligibility of a particular procedures for the filing, processing, conduct hearings and adjudicate claims
individual. and payment of claims filed under for benefits filed pursuant to section 415
(c) Subpart C describes the procedures section 415 of the Act, are included and part C of the Act. Until March 1,
to be followed and action to be taken in within this part as appropriate. 1979, it shall also mean an individual
connection with the filing of a claim (c) Part 726. Part 726 of this appointed to conduct such hearings and
under this part. subchapter, which sets forth the adjudicate such claims under Public
(d) Subpart D sets forth the duties and obligations imposed upon a coal Law 94–504.
powers of the persons designated by the operator to insure or self-insure its (5) Beneficiary means a miner or any
Secretary of Labor to adjudicate claims liability for the payment of benefits to surviving spouse, divorced spouse,
and provisions relating to the rights of certain eligible claimants, is applicable child, parent, brother or sister, who is
parties and representatives of parties. to this part as appropriate. entitled to benefits under either section
(e) Subpart E contains the procedures (d) Part 727. Part 727 of this 415 or part C of title IV of the Act.
for developing evidence and subchapter, which governs the review, (6) Benefits means all money or other
adjudicating entitlement and liability adjudication and payment of pending benefits paid or payable under section
issues by the district director. and denied claims under section 435 of 415 or part C of title IV of the Act on
(f) Subpart F describes the procedures the Act, is applicable with respect to account of disability or death due to
to be followed if a hearing before the such claims. The criteria contained in pneumoconiosis, including augmented
Office of Administrative Law Judges is subpart C of part 727 for determining a benefits (see § 725.520(c)). The term also
required. claimant’s eligibility for benefits are includes any expenses related to the
(g) Subpart G contains provisions applicable under this part with respect medical examination and testing
governing the identification of a coal to all claims filed before April 1, 1980, authorized by the district director
mine operator which may be liable for and to all claims filed under this part pursuant to § 725.406.
the payment of a claim. (7) Benefits Review Board or Board
and under section 11 of the Black Lung
(h) Subpart H contains provisions means the Benefits Review Board, U.S.
Benefits Reform Act of 1977. Because
governing the payment of benefits with Department of Labor, an appellate
the part 727 regulations affect an
respect to an approved claim. tribunal appointed by the Secretary of
increasingly smaller number of claims,
(i) Subpart I describes the statutory Labor pursuant to the provisions of
however, the Department has
mechanisms provided for the section 21(b)(1) of the LHWCA. See
discontinued publication of the criteria
enforcement of a coal mine operator’s parts 801 and 802 of this title.
in the Code of Federal Regulations. The (8) Black Lung Disability Trust Fund
liability, sets forth the penalties which
part 727 criteria may be found at 43 FR or the fund means the Black Lung
may be applied in the case of a
36818, Aug. 18, 1978 or 20 CFR, parts Disability Trust Fund established by the
defaulting coal mine operator, and
500 to end, edition revised as of April Black Lung Benefits Revenue Act of
describes the obligation of coal
1, 1999. 1977, as amended by the Black Lung
operators and their insurance carriers to
(e) Part 410. Part 410 of this title, Benefits Revenue Act of 1981, for the
file certain reports.
(j) Subpart J describes the right of which sets forth provisions relating to a payment of certain claims adjudicated
certain beneficiaries to receive medical claim for black lung benefits under part under this part (see subpart G of this
treatment benefits and vocational B of title IV of the Act, is inapplicable part).
rehabilitation under the Act. to this part except as is provided in this (9) Chief Administrative Law Judge
part, or in part 718 of this subchapter. means the Chief Administrative Law
§ 725.4 Applicability of other parts in this Judge of the Office of Administrative
title. § 725.101 Definition and use of terms.
Law Judges, U.S. Department of Labor,
(a) Part 718. Part 718 of this (a) Definitions. For purposes of this 800 K Street, NW., suite 400,
subchapter, which contains the criteria subchapter, except where the content Washington, DC 20001–8002.
and standards to be applied in clearly indicates otherwise, the (10) Claim means a written assertion
determining whether a miner is or was following definitions apply: of entitlement to benefits under section
totally disabled due to pneumoconiosis, (1) The Act means the Federal Coal 415 or part C of title IV of the Act,
or whether a miner died due to Mine Health and Safety Act, Public Law submitted in a form and manner
pneumoconiosis, shall be applicable to 91–173, 83 Stat. 742, 30 U.S.C. 801–960, authorized by the provisions of this
the determination of claims under this as amended by the Black Lung Benefits subchapter.
part. Claims filed after March 31, 1980, Act of 1972, the Mine Safety and Health (11) Claimant means an individual
are subject to part 718 as promulgated Act of 1977, the Black Lung Benefits who files a claim for benefits under this
by the Secretary in accordance with Reform Act of 1977, the Black Lung part.
section 402(f)(1) of the Act on February Benefits Revenue Act of 1977, the Black (12) Coal mine means an area of land
29, 1980 (see § 725.2(c)). The criteria Lung Benefits Revenue Act of 1981, and and all structures, facilities, machinery,
contained in subpart C of part 727 of the Black Lung Benefits Amendments of tools, equipment, shafts, slopes, tunnels,
this subchapter are applicable in 1981. excavations and other property, real or
determining claims filed prior to April (2) The Longshoremen’s Act or personal, placed upon, under or above
1, 1980, under this part, and such LHWCA means the Longshoremen’s and the surface of such land by any person,
criteria shall be applicable at all times Harbor Workers’ Compensation Act of used in, or to be used in, or resulting
with respect to claims filed under this March 4, 1927, c. 509, 44 Stat. 1424, 33 from, the work of extracting in such area
part and under section 11 of the Black U.S.C. 901–950, as amended from time bituminous coal, lignite or anthracite
Lung Benefits Reform Act of 1977. to time. from its natural deposits in the earth by
(b) Parts 715, 717, and 720. Pertinent (3) The Social Security Act means the any means or method, and in the work
and significant provisions of Parts 715, Social Security Act, Act of August 14, of preparing the coal so extracted, and
includes custom coal preparation (23) Operator means any owner, coal mine or mines for at least 125
facilities. lessee, or other person who operates, ‘‘working days.’’ A ‘‘working day’’
(13) Coal preparation means the controls or supervises a coal mine, means any day or part of a day for
breaking, crushing, sizing, cleaning, including a prior or successor operator which a miner received pay for work as
washing, drying, mixing, storing and as defined in section 422 of the Act and a miner, but shall not include any day
loading of bituminous coal, lignite or certain transportation and construction for which the miner received pay while
anthracite, and such other work of employers (see subpart G of this part). on an approved absence, such as
preparing coal as is usually done by the (24) Person means an individual, vacation or sick leave. In determining
operator of a coal mine. partnership, association, corporation, whether a miner worked for one year,
(14) Department means the United firm, subsidiary or parent of a any day for which the miner received
States Department of Labor. corporation, or other organization or pay while on an approved absence, such
(15) Director means the Director, business entity. as vacation or sick leave, may be
OWCP, or his or her designee. (25) Pneumoconiosis means a chronic counted as part of the calendar year and
(16) District Director means a person dust disease of the lung and its as partial periods totaling one year.
appointed as provided in sections 39 sequelae, including respiratory and (i) If the evidence establishes that the
and 40 of the LHWCA, or his or her pulmonary impairments, arising out of miner worked in or around coal mines
designee, who is authorized to develop coal mine employment (see part 718 of at least 125 working days during a
and adjudicate claims as provided in this subchapter). calendar year or partial periods totaling
this subchapter (see § 725.350). The (26) Responsible operator means an one year, then the miner has worked
term District Director is substituted for operator which has been determined to one year in coal mine employment for
the term Deputy Commissioner be liable for the payment of benefits to all purposes under the Act. If a miner
wherever that term appears in the a claimant for periods of eligibility after worked fewer than 125 working days in
regulations. This substitution is for December 31, 1973, with respect to a a year, he or she has worked a fractional
administrative purposes only and in no claim filed under section 415 or part C year based on the ratio of the actual
way affects the power or authority of the of title IV of the Act or reviewed under number of days worked to 125. Proof
position as established in the statute. section 435 of the Act. that the miner worked more than 125
(27) Secretary means the Secretary of working days in a calendar year or
Any action taken by a person under the
Labor, United States Department of partial periods totaling a year, shall not
authority of a district director will be
Labor, or a person, authorized by him or establish more than one year.
considered the action of a deputy
her to perform his or her functions (ii) To the extent the evidence
commissioner.
under title IV of the Act. permits, the beginning and ending dates
(17) Division or DCMWC means the (28) State includes any state of the of all periods of coal mine employment
Division of Coal Mine Workers’ United States, the District of Columbia, shall be ascertained. The dates and
Compensation in the OWCP, the Commonwealth of Puerto Rico, the length of employment may be
Employment Standards Administration, Virgin Islands, American Samoa, Guam, established by any credible evidence
United States Department of Labor. the Trust Territory of the Pacific Islands, including (but not limited to) company
(18) Insurer or carrier means any and prior to January 3, 1959, and August records, pension records, earnings
private company, corporation, mutual 21, 1959, respectively, the territories of statements, coworker affidavits, and
association, reciprocal or interinsurance Alaska and Hawaii. sworn testimony. If the evidence
exchange, or any other person or fund, (29) Total disability and partial establishes that the miner’s employment
including any State fund, authorized disability, for purposes of this part, have lasted for a calendar year or partial
under the laws of a State to insure the meaning given them as provided in periods totaling a 365-day period
employers’ liability under workers’ part 718 of this subchapter. amounting to one year, it shall be
compensation laws. The term also (30) Underground coal mine means a presumed, in the absence of evidence to
includes the Secretary of Labor in the coal mine in which the earth and other the contrary, that the miner spent at
exercise of his or her authority under materials which lie above and around least 125 working days in such
section 433 of the Act. the natural deposit of coal (i.e., employment.
(19) Miner or coal miner means any overburden) are not removed in mining; (iii) If the evidence is insufficient to
individual who works or has worked in including all land, structures, facilities, establish the beginning and ending
or around a coal mine or coal machinery, tools, equipment, shafts, dates of the miner’s coal mine
preparation facility in the extraction or slopes, tunnels, excavations and other employment, or the miner’s
preparation of coal. The term also property, real or personal, appurtenant employment lasted less than a calendar
includes an individual who works or thereto. year, then the adjudication officer may
has worked in coal mine construction or (31) A workers’ compensation law use the following formula: divide the
transportation in or around a coal mine, means a law providing for payment of miner’s yearly income from work as a
to the extent such individual was benefits to employees, and their miner by the coal mine industry’s
exposed to coal mine dust as a result of dependents and survivors, for disability average daily earnings for that year, as
such employment (see § 725.202). For on account of injury, including reported by the Bureau of Labor
purposes of this definition, the term occupational disease, or death, suffered Statistics (BLS). A copy of the BLS table
does not include coke oven workers. in connection with their employment. A shall be made a part of the record if the
(20) The Nation’s coal mines means payment funded wholly out of general adjudication officer uses this method to
all coal mines located in any State. revenues shall not be considered a establish the length of the miner’s work
(21) Office or OWCP means the Office payment under a workers’ history.
of Workers’ Compensation Programs, compensation law. (iv) No periods of coal mine
United States Department of Labor. (32) Year means a period of one employment occurring outside the
(22) Office of Administrative Law calendar year (365 days, or 366 days if United States shall be considered in
Judges means the Office of one of the days is February 29), or computing the miner’s work history.
Administrative Law Judges, U.S. partial periods totaling one year, during (b) Statutory terms. The definitions
Department of Labor. which the miner worked in or around a contained in this section shall not be
construed in derogation of terms of the with a request made under this benefits, except where entitlement is
Act. paragraph. established under § 718.306 of this
(c) Dependents and survivors. subchapter on a survivor’s claim filed
§ 725.103 Burden of proof. prior to June 30, 1982.
Dependents and survivors are those
persons described in subpart B of this Except as otherwise provided in this (b) Section 411(c)(5) of the Act
part. part and part 718, the burden of proving provides for the payment of benefits to
a fact alleged in connection with any the eligible survivors of a miner
§ 725.102 Disclosure of program provision shall rest with the party employed for 25 or more years in the
information. making such allegation. mines prior to June 30, 1971, if the
(a) All reports, records, or other miner’s death occurred on or before
documents filed with the OWCP with Subpart B—Persons Entitled to March 1, 1978, and if the claim was
respect to claims are the records of the Benefits, Conditions, and Duration of filed prior to June 30, 1982, unless it is
OWCP. The Director or his or her Entitlement established that at the time of death, the
designee shall be the official custodian § 725.201 Who is entitled to benefits; miner was not totally or partially
of those records maintained by the contents of this subpart. disabled due to pneumoconiosis. For
OWCP at its national office. The District (a) Section 415 and part C of the Act the purposes of this part the term ‘‘total
Director shall be the official custodian provide for the payment of periodic disability’’ shall mean partial disability
of those records maintained at a district benefits in accordance with this part to: with respect to a claim for which
office. (1) A miner (see § 725.202) who is eligibility is established under section
(b) The official custodian of any determined to be totally disabled due to 411(c)(5) of the Act. See § 718.306 of
record sought to be inspected shall pneumoconiosis; or this subchapter which implements this
permit or deny inspection in accordance (2) The surviving spouse or surviving provision of the Act.
with the Department of Labor’s divorced spouse or, where neither (c) The provisions contained in this
regulations pertaining thereto (see 29 exists, the child of a deceased miner, subpart describe the conditions of
CFR Part 70). The original record in any where the deceased miner: entitlement to benefits applicable to a
such case shall not be removed from the (i) Was receiving benefits under miner, or a surviving spouse, child,
Office of the custodian for such section 415 or part C of title IV of the parent, brother, or sister, and the events
inspection. The custodian may, in his or Act as a result of a claim filed prior to which establish or terminate entitlement
her discretion, deny inspection of any January 1, 1982; or to benefits.
record or part thereof which is of a (ii) Is determined as a result of a claim (d) In order for an entitled miner or
character specified in 5 U.S.C. 552(b) if filed prior to January 1, 1982, to have surviving spouse to qualify for
in his or her opinion such inspection been totally disabled due to augmented benefits because of one or
may result in damage, harm, or pneumoconiosis at the time of death, or more dependents, such dependents
harassment to the beneficiary or to any to have died due to pneumoconiosis. must meet relationship and dependency
other person. For special provisions Survivors of miners whose claims are requirements with respect to such
concerning release of information filed on or after January 1, 1982, must beneficiary prescribed by or pursuant to
regarding injured employees undergoing establish that the deceased miner’s the Act. Such requirements are also set
vocational rehabilitation, see § 702.508 death was due to pneumoconiosis in forth in this subpart.
of this chapter. order to establish their entitlement to Conditions and Duration of Entitlement:
(c) Any person may request copies of benefits, except where entitlement is Miner
records he or she has been permitted to established under § 718.306 of this
inspect. Such requests shall be subchapter on a survivor’s claim filed § 725.202 Miner defined; condition of
addressed to the official custodian of the prior to June 30, 1982, or; entitlement, miner.
records sought to be copied. The official (3) The child of a miner’s surviving (a) Miner defined. A ‘‘miner’’ for the
custodian shall provide the requested spouse who was receiving benefits purposes of this part is any person who
copies under the terms and conditions under section 415 or part C of title IV works or has worked in or around a coal
specified in the Department of Labor’s of the Act at the time of such spouse’s mine or coal preparation facility in the
regulations relating thereto (see 29 CFR death; or extraction, preparation, or
Part 70). (4) The surviving dependent parents, transportation of coal, and any person
(d) Any party to a claim (§ 725.360) or where there is no surviving spouse or who works or has worked in coal mine
his or her duly authorized child, or the surviving dependent construction or maintenance in or
representative shall be permitted upon brothers or sisters, where there is no around a coal mine or coal preparation
request to inspect the file which has surviving spouse, child, or parent, of a facility. There shall be a rebuttable
been compiled in connection with such miner, where the deceased miner; presumption that any person working in
claim. Any party to a claim or (i) Was receiving benefits under or around a coal mine or coal
representative of such party shall upon section 415 or part C of title IV of the preparation facility is a miner. This
request be provided with a copy of any Act as a result of a claim filed prior to presumption may be rebutted by proof
or all material contained in such claim January 1, 1982; or that:
file. A request for information by a party (ii) Is determined as a result of a claim (1) The person was not engaged in the
or representative made under this filed prior to January 1, 1982, to have extraction, preparation or transportation
paragraph shall be answered within a been totally disabled due to of coal while working at the mine site,
reasonable time after receipt by the pneumoconiosis at the time of death, or or in maintenance or construction of the
Office. Internal documents prepared by to have died due to pneumoconiosis. mine site; or
the district director which do not Survivors of miners whose claims are (2) The individual was not regularly
constitute evidence of a fact which must filed on or after January 1, 1982, must employed in or around a coal mine or
be established in connection with a establish that the deceased miner’s coal preparation facility.
claim shall not be routinely provided or death was due to pneumoconiosis in (b) Coal mine construction and
presented for inspection in accordance order to establish their entitlement to transportation workers; special
provisions. A coal mine construction or § 725.203 Duration and cessation of miner were not living in the same
transportation worker shall be entitlement; miner. household in the month in which a
considered a miner to the extent such (a) An individual is entitled to request is filed that the miner’s benefits
individual is or was exposed to coal benefits as a miner for each month be augmented because such individual
mine dust as a result of employment in beginning with the first month on or qualifies as the miner’s spouse.
or around a coal mine or coal after January 1, 1974, in which the (b) The qualification of an individual
preparation facility. A transportation miner is totally disabled due to for augmentation purposes under this
worker shall be considered a miner to pneumoconiosis arising out of coal mine section shall end with the month before
the extent that his or her work is employment. the month in which:
integral to the extraction or preparation (b) The last month for which such (1) The individual dies, or
of coal. A construction worker shall be individual is entitled to benefits is the (2) The individual who previously
considered a miner to the extent that his month before the month during which qualified as a spouse for purposes of
or her work is integral to the building either of the following events first § 725.520(c), entered into a valid
of a coal or underground mine (see occurs: marriage without regard to this section,
§ 725.101(a)(12), (30)). (1) The miner dies; or with a person other than the miner.
(1) There shall be a rebuttable (2) The miner’s total disability ceases
(see § 725.504). § 725.205 Determination of dependency;
presumption that such individual was spouse.
exposed to coal mine dust during all (c) An individual who has been
periods of such employment occurring finally adjudged to be totally disabled For the purposes of augmenting
in or around a coal mine or coal due to pneumoconiosis and is receiving benefits, an individual who is the
preparation facility for purposes of: benefits under the Act shall promptly miner’s spouse (see § 725.204) will be
notify the Office and the responsible determined to be dependent upon the
(i) Determining whether such
coal mine operator, if any, if he or she miner if:
individual is or was a miner;
engages in his or her usual coal mine (a) The individual is a member of the
(ii) Establishing the applicability of same household as the miner (see
any of the presumptions described in work or comparable and gainful work.
(d) Upon reasonable notice, an § 725.232); or
section 411(c) of the Act and part 718 (b) The individual is receiving regular
of this subchapter; and individual who has been finally
adjudged entitled to benefits shall contributions from the miner for
(iii) Determining the identity of a coal submit to any additional tests or support (see § 725.233(c)); or
mine operator liable for the payment of examinations the Office deems (c) The miner has been ordered by a
benefits in accordance with § 725.495. appropriate, and shall submit medical court to contribute to such individual’s
(2) The presumption may be rebutted reports and other relevant evidence the support (see § 725.233(e)); or
by evidence which demonstrates that: Office deems necessary, if an issue (d) The individual is the natural
(i) The individual was not regularly arises pertaining to the validity of the parent of the son or daughter of the
exposed to coal mine dust during his or original award. miner; or
her work in or around a coal mine or (e) The individual was married to the
coal preparation facility; or Conditions and Duration of Entitlement: miner (see § 725.204) for a period of not
Miner’s Dependents (Augmented less than 1 year.
(ii) The individual did not work
Benefits)
regularly in or around a coal mine or § 725.206 Determination of relationship;
coal preparation facility. § 725.204 Determination of relationship; divorced spouse.
(c) A person who is or was a self- spouse.
For the purposes of augmenting
employed miner or independent (a) For the purpose of augmenting benefits with respect to any claim
contractor, and who otherwise meets the benefits, an individual will be considered or reviewed under this part
requirements of this paragraph, shall be considered to be the spouse of a miner or part 727 of this subchapter (see
considered a miner for the purposes of if: § 725.4(d)), an individual will be
this part. (1) The courts of the State in which considered to be the divorced spouse of
(d) Conditions of entitlement; miner. the miner is domiciled would find that a miner if the individual’s marriage to
An individual is eligible for benefits such individual and the miner validly the miner has been terminated by a final
under this subchapter if the individual: married; or divorce on or after the 10th anniversary
(1) Is a miner as defined in this (2) The courts of the State in which of the marriage unless, if such
section; and the miner is domiciled would find, individual was married to and divorced
(2) Has met the requirements for under the law they would apply in from the miner more than once, such
entitlement to benefits by establishing determining the devolution of the individual was married to the miner in
that he or she: miner’s intestate personal property, that each calendar year of the period
the individual is the miner’s spouse; or beginning 10 years immediately before
(i) Has pneumoconiosis (see
(3) Under State law, such individual the date on which any divorce became
§ 718.202), and
would have the right of a spouse to final.
(ii) The pneumoconiosis arose out of share in the miner’s intestate personal
coal mine employment (see § 718.203), property; or § 725.207 Determination of dependency;
and (4) Such individual went through a divorced spouse.
(iii) Is totally disabled (see marriage ceremony with the miner For the purpose of augmenting
§ 718.204(c)), and resulting in a purported marriage benefits, an individual who is the
(iv) The pneumoconiosis contributes between them and which, but for a legal miner’s divorced spouse (§ 725.206) will
to the total disability (see § 718.204(c)); impediment, would have been a valid be determined to be dependent upon the
and marriage, unless the individual entered miner if:
(3) Has filed a claim for benefits in into the purported marriage with (a) The individual is receiving at least
accordance with the provisions of this knowledge that it was not a valid one-half of his or her support from the
part. marriage, or if such individual and the miner (see § 725.233(g)); or
(b) The individual is receiving mother of the individual and was living be pursuing such course for the entire
substantial contributions from the miner with or contributing to the support of month.
pursuant to a written agreement (see the individual at the time the (3) A child is considered not to have
§ 725.233(c) and (f)); or beneficiary became entitled to benefits. ceased to be a student:
(c) A court order requires the miner to (i) During any interim between school
furnish substantial contributions to the § 725.209 Determination of dependency; years, if the interim does not exceed 4
child.
individual’s support (see § 725.233(c) months and the child shows to the
and (e)). (a) For purposes of augmenting the satisfaction of the Office that he or she
benefits of a miner or surviving spouse, has a bona fide intention of continuing
§ 725.208 Determination of relationship; the term ‘‘beneficiary’’ as used in this to pursue a full-time course of study or
child. section means only a miner or surviving training; or
As used in this section, the term spouse entitled to benefits (see (ii) During periods of reasonable
‘‘beneficiary’’ means only a surviving § 725.202 and § 725.212). An individual duration in which, in the judgment of
spouse entitled to benefits at the time of who is the beneficiary’s child the Office, the child is prevented by
death (see § 725.212), or a miner. An (§ 725.208) will be determined to be, or factors beyond the child’s control from
individual will be considered to be the to have been, dependent on the pursuing his or her education.
child of a beneficiary if: beneficiary, if the child: (4) A student whose 23rd birthday
(a) The courts of the State in which (1) Is unmarried; and occurs during a semester or the
the beneficiary is domiciled (see (2)(i) Is under 18 years of age; or enrollment period in which such
§ 725.231) would find, under the law (ii) Is under a disability as defined in student is pursuing a full-time course of
they would apply, that the individual is section 223(d) of the Social Security study or training shall continue to be
the beneficiary’s child; or Act, 42 U.S.C. 423(d); or considered a student until the end of
(b) The individual is the legally (iii) Is 18 years of age or older and is such period, unless eligibility is
adopted child of such beneficiary; or a student. otherwise terminated.
(c) The individual is the stepchild of (b)(1) The term ‘‘student’’ means a
such beneficiary by reason of a valid ‘‘full-time student’’ as defined in section § 725.210 Duration of augmented benefits.
marriage of the individual’s parent or 202(d)(7) of the Social Security Act, 42 Augmented benefits payable on behalf
adopting parent to such beneficiary; or U.S.C. 402(d)(7) (see §§ 404.367— of a spouse or divorced spouse, or a
(d) The individual does not bear the 404.369 of this title), or an individual child, shall begin with the first month
relationship of child to such beneficiary under 23 years of age who has not in which the dependent satisfies the
under paragraph (a), (b), or (c) of this completed 4 years of education beyond conditions of relationship and
section, but would, under State law, the high school level and who is dependency set forth in this subpart.
have the same right as a child to share regularly pursuing a full-time course of Augmentation of benefits on account of
in the beneficiary’s intestate personal study or training at an institution which a dependent continues through the
property; or is: month before the month in which the
(e) The individual is the natural son (i) A school, college, or university dependent ceases to satisfy these
or daughter of a beneficiary but is not operated or directly supported by the conditions, except in the case of a child
a child under paragraph (a), (b), or (c) United States, or by a State or local who qualifies as a dependent because
of this section, and is not considered to government or political subdivision such child is a student. In the latter
be the child of the beneficiary under thereof; or case, benefits continue to be augmented
paragraph (d) of this section if the (ii) A school, college, or university through the month before the first
beneficiary and the mother or the father, which has been accredited by a State or month during no part of which such
as the case may be, of the individual by a State-recognized or nationally- child qualifies as a student.
went through a marriage ceremony recognized accrediting agency or body;
resulting in a purported marriage or § 725.211 Time of determination of
between them which but for a legal (iii) A school, college, or university relationship and dependency of spouse or
impediment (see § 725.230) would have not so accredited but whose credits are child for purposes of augmentation of
been a valid marriage; or accepted, on transfer, by at least three benefits.
(f) The individual is the natural son institutions which are so accredited; or With respect to the spouse or child of
or daughter of a beneficiary but is not (iv) A technical, trade, vocational, a miner entitled to benefits, and with
a child under paragraph (a), (b), or (c) business, or professional school respect to the child of a surviving
of this section, and is not considered to accredited or licensed by the Federal or spouse entitled to benefits, the
be the child of the beneficiary under a State government or any political determination as to whether an
paragraph (d) or (e) of this section, such subdivision thereof, providing courses individual purporting to be a spouse or
individual shall nevertheless be of not less than 3 months’ duration that child is related to or dependent upon
considered to be the child of the prepare the student for a livelihood in such miner or surviving spouse shall be
beneficiary if: a trade, industry, vocation, or based on the facts and circumstances
(1) The beneficiary, prior to his or her profession. present in each case, at the appropriate
entitlement to benefits, has (2) A student will be considered to be time.
acknowledged in writing that the ‘‘pursuing a full-time course of study or Conditions and Duration of Entitlement:
individual is his or her son or daughter, training at an institution’’ if the student Miner’s Survivors
or has been decreed by a court to be the is enrolled in a noncorrespondence
parent of the individual, or has been course of at least 13 weeks duration and § 725.212 Conditions of entitlement;
ordered by a court to contribute to the is carrying a subject load which is surviving spouse or surviving divorced
support of the individual (see considered full-time for day students spouse.
§ 725.233(e)) because the individual is under the institution’s standards and (a) An individual who is the surviving
his or her son or daughter; or practices. A student beginning or ending spouse or surviving divorced spouse of
(2) Such beneficiary is shown by a full-time course of study or training in a miner is eligible for benefits if such
satisfactory evidence to be the father or part of any month will be considered to individual:
(1) Is not married; at the time of his or her death would accidental if such individual received
(2) Was dependent on the miner at the find that the individual and the miner bodily injuries solely through violent,
pertinent time; and were validly married; or external, and accidental means, and as
(3) The deceased miner either: (b) The courts of the State in which a direct result of the bodily injuries and
(i) Was receiving benefits under the miner was domiciled (see § 725.231) independently of all other causes, dies
section 415 or part C of title IV of the at the time of the miner’s death would not later than 3 months after the day on
Act at the time of death as a result of find that the individual was the miner’s which such miner receives such bodily
a claim filed prior to January 1, 1982; or surviving spouse; or injuries. The term ‘‘accident’’ means an
(ii) Is determined as a result of a claim (c) Under State law, such individual event that was unpremeditated and
filed prior to January 1, 1982, to have would have the right of the spouse to unforeseen from the standpoint of the
been totally disabled due to share in the miner’s intestate personal deceased individual. To determine
pneumoconiosis at the time of death or property; or whether the death of an individual did,
to have died due to pneumoconiosis. A (d) Such individual went through a in fact, result from an accident the
surviving spouse or surviving divorced marriage ceremony with the miner, adjudication officer will consider all the
spouse of a miner whose claim is filed resulting in a purported marriage circumstances surrounding the casualty.
on or after January 1, 1982, must between them which, but for a legal An intentional and voluntary suicide
establish that the deceased miner’s impediment (see § 725.230), would have will not be considered to be death by
death was due to pneumoconiosis in been a valid marriage, unless such accident; however, suicide by an
order to establish entitlement to individual entered into the purported individual who is so incompetent as to
benefits, except where entitlement is marriage with knowledge that it was not be incapable of acting intentionally and
established under § 718.306 of part 718 a valid marriage, or if such individual voluntarily will be considered to be a
on a claim filed prior to June 30, 1982. and the miner were not living in the death by accident. In no event will the
(b) If more than one spouse meets the same household at the time of the death of an individual resulting from
conditions of entitlement prescribed in miner’s death. violent and external causes be
paragraph (a), then each spouse will be
considered a suicide unless there is
considered a beneficiary for purposes of § 725.215 Determination of dependency;
surviving spouse. direct proof that the fatal injury was
section 412(a)(2) of the Act without
self-inflicted.
regard to the existence of any other An individual who is the miner’s (3) The provisions of paragraph (g)
entitled spouse or spouses. surviving spouse (see § 725.214) shall be shall not apply if the adjudication
determined to have been dependent on officer determines that at the time of the
§ 725.213 Duration of entitlement;
surviving spouse or surviving divorced
the miner if, at the time of the miner’s marriage involved, the miner would not
spouse. death: reasonably have been expected to live
(a) The individual was living with the
(a) An individual is entitled to for 9 months.
miner (see § 725.232); or
benefits as a surviving spouse, or as a
(b) The individual was dependent § 725.216 Determination of relationship;
surviving divorced spouse, for each
upon the miner for support or the miner surviving divorced spouse.
month beginning with the first month in
has been ordered by a court to An individual will be considered to
which all of the conditions of
contribute to such individual’s support be the surviving divorced spouse of a
entitlement prescribed in § 725.212 are
(see § 725.233); or deceased miner in a claim considered
satisfied. (c) The individual was living apart
(b) The last month for which such under this part or reviewed under part
from the miner because of the miner’s 727 of this subchapter (see § 725.4(d)),
individual is entitled to such benefits is
desertion or other reasonable cause; or if such individual’s marriage to the
the month before the month in which
(d) The individual is the natural miner had been terminated by a final
either of the following events first
parent of the miner’s son or daughter; or divorce on or after the 10th anniversary
occurs: (e) The individual had legally adopted
(1) The surviving spouse or surviving of the marriage unless, if such
the miner’s son or daughter while the individual was married to and divorced
divorced spouse marries; or
(2) The surviving spouse or surviving individual was married to the miner and from the miner more than once, such
divorced spouse dies. while such son or daughter was under individual was married to such miner in
(c) A surviving spouse or surviving the age of 18; or each calendar year of the period
divorced spouse whose entitlement to (f) The individual was married to the beginning 10 years immediately before
benefits has been terminated pursuant miner at the time both of them legally the date on which any divorce became
to § 725.213(b)(1) may thereafter again adopted a child under the age of 18; or final and ending with the year in which
become entitled to such benefits upon (g)(1) The individual was married to the divorce became final.
filing application for such reentitlement, the miner for a period of not less than
beginning with the first month after the 9 months immediately before the day on § 725.217 Determination of dependency;
which the miner died, unless the surviving divorced spouse.
marriage ends and such individual
meets the requirements of § 725.212. miner’s death: An individual who is the miner’s
The individual shall not be required to (i) Is accidental (as defined in surviving divorced spouse (see
reestablish the miner’s entitlement to paragraph (g)(2) of this section), or § 725.216) shall be determined to have
benefits (§ 725.212(a)(3)(i)) or the (ii) Occurs in line of duty while the been dependent on the miner if, for the
miner’s death due to pneumoconiosis miner is a member of a uniformed month before the month in which the
(§ 725.212(a)(3)(ii)). service serving on active duty (as miner died:
defined in § 404.1019 of this title), and (a) The individual was receiving at
§ 725.214 Determination of relationship; the surviving spouse was married to the least one-half of his or her support from
surviving spouse. miner for a period of not less than 3 the miner (see § 725.233(g)); or
An individual shall be considered to months immediately prior to the day on (b) The individual was receiving
be the surviving spouse of a miner if: which such miner died. substantial contributions from the miner
(a) The courts of the State in which (2) For purposes of paragraph (g)(1)(i) pursuant to a written agreement (see
the miner was domiciled (see § 725.231) of this section, the death of a miner is § 725.233(c) and (f)); or
(c) A court order required the miner (c) A child whose entitlement to mother or father, as the case may be, of
to furnish substantial contributions to benefits terminated with the month such individual went through a
the individual’s support (see before the month in which the child marriage ceremony resulting in a
§ 725.233(c) and (e)). attained age 18, or later, may thereafter purported marriage between them
(provided such individual is not which but for a legal impediment (see
§ 725.218 Conditions of entitlement; child.
married) again become entitled to such § 725.230) would have been a valid
(a) An individual is entitled to benefits upon filing application for such marriage; or
benefits where he or she meets the reentitlement, beginning with the first (f) Such individual is the natural son
required standards of relationship and month after termination of benefits in or daughter of a beneficiary but does not
dependency under this subpart (see which such individual is a student and have the relationship of child to such
§ 725.220 and § 725.221) and is the has not attained the age of 23. beneficiary under paragraph (a), (b), or
child of a deceased miner who: (d) A child whose entitlement to (c) of this section, and is not considered
(1) Was receiving benefits under benefits has been terminated pursuant to be the child of the beneficiary under
section 415 or part C of title IV of the to § 725.219(b)(2) may thereafter again paragraph (d) or (e) of this section, such
Act as a result of a claim filed prior to become entitled to such benefits upon individual shall nevertheless be
January 1, 1982, or filing application for such reentitlement, considered to be the child of such
(2) Is determined as a result of a claim
beginning with the first month after the beneficiary if:
filed prior to January 1, 1982, to have
marriage ends and such individual (1) Such beneficiary, prior to his or
been totally disabled due to
meets the requirements of § 725.218. her entitlement to benefits, has
pneumoconiosis at the time of death, or
The individual shall not be required to acknowledged in writing that the
to have died due to pneumoconiosis. A
reestablish the miner’s entitlement to individual is his or her son or daughter,
surviving dependent child of a miner
benefits (§ 725.218(a)(1)) or the miner’s or has been decreed by a court to be the
whose claim is filed on or after January
death due to pneumoconiosis father or mother of the individual, or
1, 1982, must establish that the miner’s
(§ 725.212(a)(2)). has been ordered by a court to
death was due to pneumoconiosis in
order to establish entitlement to contribute to the support of the
§ 725.220 Determination of relationship;
benefits, except where entitlement is individual (see § 725.233(a)) because the
child.
established under § 718.306 of this individual is a son or daughter; or
For purposes of determining whether (2) Such beneficiary is shown by
subchapter on a claim filed prior to June an individual may qualify for benefits as
30, 1982. satisfactory evidence to be the father or
the child of a deceased miner, the mother of the individual and was living
(b) A child is not entitled to benefits provisions of § 725.208 shall be
for any month for which a miner, or the with or contributing to the support of
applicable. As used in this section, the the individual at the time such
surviving spouse or surviving divorced term ‘‘beneficiary’’ means only a
spouse of a miner, establishes beneficiary became entitled to benefits.
surviving spouse entitled to benefits at
entitlement to benefits. the time of such surviving spouse’s § 725.221 Determination of dependency;
death (see § 725.212), or a miner. For child.
§ 725.219 Duration of entitlement; child.
purposes of a survivor’s claim, an For the purposes of determining
(a) An individual is entitled to
individual will be considered to be a whether a child was dependent upon a
benefits as a child for each month
child of a beneficiary if: deceased miner, the provisions of
beginning with the first month in which
(a) The courts of the State in which § 725.209 shall be applicable, except
all of the conditions of entitlement
such beneficiary is domiciled (see that for purposes of determining the
prescribed in § 725.218 are satisfied.
(b) The last month for which such § 725.231) would find, under the law eligibility of a child who is under a
individual is entitled to such benefits is they would apply in determining the disability as defined in section 223(d) of
the month before the month in which devolution of the beneficiary’s intestate the Social Security Act, such disability
any one of the following events first personal property, that the individual is must have begun before the child
occurs: the beneficiary’s child; or attained age 22, or in the case of a
(1) The child dies; (b) Such individual is the legally student, before the child ceased to be a
(2) The child marries; adopted child of such beneficiary; or student.
(3) The child attains age 18; and (c) Such individual is the stepchild of
(i) Is not a student (as defined in such beneficiary by reason of a valid § 725.222 Conditions of entitlement;
marriage of such individual’s parent or parent, brother, or sister.
§ 725.209(b)) during any part of the
month in which the child attains age 18; adopting parent to such beneficiary; or (a) An individual is eligible for
and (d) Such individual does not bear the benefits as a surviving parent, brother or
(ii) Is not under a disability (as relationship of child to such beneficiary sister if all of the following
defined in § 725.209(a)(2)(ii)) at that under paragraph (a), (b), or (c) of this requirements are met:
time; section, but would, under State law, (1) The individual is the parent,
(4) If the child’s entitlement beyond have the same right as a child to share brother, or sister of a deceased miner;
age 18 is based on his or her status as in the beneficiary’s intestate personal (2) The individual was dependent on
a student, the earlier of: property; or the miner at the pertinent time;
(i) The first month during no part of (e) Such individual is the natural son (3) Proof of support is filed within 2
which the child is a student; or or daughter of a beneficiary but does not years after the miner’s death, unless the
(ii) The month in which the child bear the relationship of child to such time is extended for good cause
attains age 23 and is not under a beneficiary under paragraph (a), (b), or (§ 725.226);
disability (as defined in (c) of this section, and is not considered (4) In the case of a brother or sister,
§ 725.209(a)(2)(ii)) at that time; to be the child of the beneficiary under such individual also:
(5) If the child’s entitlement beyond paragraph (d) of this section, such (i) Is under 18 years of age; or
age 18 is based on disability, the first individual shall nevertheless be (ii) Is under a disability as defined in
month in no part of which such considered to be the child of such section 223(d) of the Social Security
individual is under a disability. beneficiary if the beneficiary and the Act, 42 U.S.C. 423(d), which began
before such individual attained age 22, under a disability (as defined in § 725.227 Time of determination of
or in the case of a student, before the § 725.209(a)(2)(ii)) at that time; relationship and dependency of survivors.
student ceased to be a student; or (5) If the individual’s entitlement The determination as to whether an
(iii) Is a student (see § 725.209(b)); or beyond age 18 is based on disability, the individual purporting to be an entitled
(iv) Is under a disability as defined in first month in no part of which such survivor of a miner or beneficiary was
section 223(d) of the Social Security individual is under a disability. related to, or dependent upon, the miner
Act, 42 U.S.C. 423(d), at the time of the is made after such individual files a
miner’s death; § 725.224 Determination of relationship;
parent, brother, or sister.
claim for benefits as a survivor. Such
(5) The deceased miner: determination is based on the facts and
(i) Was entitled to benefits under (a) An individual will be considered circumstances with respect to a
section 415 or part C of title IV of the to be the parent, brother, or sister of a reasonable period of time ending with
Act as a result of a claim filed prior to miner if the courts of the State in which the miner’s death. A prior determination
January 1, 1982; or the miner was domiciled (see § 225.231) that such individual was, or was not, a
(ii) Is determined as a result of a claim at the time of death would find, under dependent for the purposes of
filed prior to January 1, 1982, to have the law they would apply, that the augmenting the miner’s benefits for a
been totally disabled due to individual is the miner’s parent, certain period, is not determinative of
pneumoconiosis at the time of death or brother, or sister. the issue of whether the individual is a
to have died due to pneumoconiosis. A (b) Where, under State law, the dependent survivor of such miner.
surviving dependent parent, brother or individual is not the miner’s parent,
sister of a miner whose claim is filed on brother, or sister, but would, under State § 725.228 Effect of conviction of felonious
or after January 1, 1982, must establish law, have the same status (i.e., right to and intentional homicide on entitlement to
that the miner’s death was due to share in the miner’s intestate personal benefits.
pneumoconiosis in order to establish property) as a parent, brother, or sister, An individual who has been
entitlement to benefits, except where the individual will be considered to be convicted of the felonious and
entitlement is established under the parent, brother, or sister as intentional homicide of a miner or other
§ 718.306 of part 718 on a claim filed appropriate. beneficiary shall not be entitled to
prior to June 30, 1982. receive any benefits payable because of
(b)(1) A parent is not entitled to § 725.225 Determination of dependency;
parent, brother, or sister.
the death of such miner or other
benefits if the deceased miner was beneficiary, and such person shall be
survived by a spouse or child at the time An individual who is the miner’s considered nonexistent in determining
of such miner’s death. parent, brother, or sister will be the entitlement to benefits of other
(2) A brother or sister is not entitled determined to have been dependent on individuals.
to benefits if the deceased miner was the miner if, during the 1–year period
survived by a spouse, child, or parent at immediately prior to the miner’s death: Terms Used in This Subpart
the time of such miner’s death. (a) The individual and the miner were
§ 725.229 Intestate personal property.
living in the same household (see
§ 725.223 Duration of entitlement; parent, References in this subpart to the
§ 725.232); and
brother, or sister. ‘‘same right to share in the intestate
(b) The individual was totally
(a) A parent, sister, or brother is dependent on the miner for support (see personal property’’ of a deceased miner
entitled to benefits beginning with the § 725.233(h)). (or surviving spouse) refer to the right
month all the conditions of entitlement of an individual to share in such
described in § 725.222 are met. § 725.226 ‘‘Good cause’’ for delayed filing distribution in the individual’s own
(b) The last month for which such of proof of support. right and not the right of representation.
parent is entitled to benefits is the (a) What constitutes ‘‘good cause.’’
month in which the parent dies. ‘‘Good cause’’ may be found for failure § 725.230 Legal impediment.
(c) The last month for which such to file timely proof of support where the For purposes of this subpart, ‘‘legal
brother or sister is entitled to benefits is parent, brother, or sister establishes to impediment’’ means an impediment
the month before the month in which the satisfaction of the Office that such resulting from the lack of dissolution of
any of the following events first occurs: failure to file was due to: a previous marriage or otherwise arising
(1) The individual dies; (1) Circumstances beyond the out of such previous marriage or its
(2)(i) The individual marries or individual’s control, such as extended dissolution or resulting from a defect in
remarries; or illness, mental, or physical incapacity, the procedure followed in connection
(ii) If already married, the individual with the purported marriage
or communication difficulties; or
received support in any amount from ceremony—for example, the
(2) Incorrect or incomplete
his or her spouse; solemnization of a marriage only
(3) The individual attains age 18; and information furnished the individual by
(i) Is not a student (as defined in the Office; or through a religious ceremony in a
§ 725.209(b)) during any part of the (3) Efforts by the individual to secure country which requires a civil ceremony
month in which the individual attains supporting evidence without a for a valid marriage.
age 18; and realization that such evidence could be
§ 725.231 Domicile.
(ii) Is not under a disability (as submitted after filing proof of support.
defined in § 725.209(a)(2)(ii)) at that (b) What does not constitute ‘‘good (a) For purposes of this subpart, the
time; cause.’’ ‘‘Good cause’’ for failure to file term ‘‘domicile’’ means the place of an
(4) If the individual’s entitlement timely proof of support (see individual’s true, fixed, and permanent
beyond age 18 is based on his or her § 725.222(a)(3)) does not exist when home.
status as a student, the earlier of: there is evidence of record in the Office (b) The domicile of a deceased miner
(i) The first month during no part of that the individual was informed that he or surviving spouse is determined as of
which the individual is a student; or or she should file within the prescribed the time of death.
(ii) The month in which the period and he or she failed to do so (c) If an individual was not domiciled
individual attains age 23 and is not deliberately or through negligence. in any State at the pertinent time, the
law of the District of Columbia is § 725.233 Support and contributions. (h) Totally dependent for support
applied. (a) Support defined. The term defined. The term ‘‘totally dependent
‘‘support’’ includes food, shelter, for support’’ as used in § 725.225(b)
§ 725.232 Member of the same clothing, ordinary medical expenses, means that the miner made regular
household—‘‘living with,’’ ‘‘living in the
same household,’’ and ‘‘living in the miner’s
and other ordinary and customary items contributions to the support of the
household,’’ defined. for the maintenance of the person miner’s parents, brother, or sister, as the
supported. case may be, and that the amount of
(a) Defined. (1) The term ‘‘member of (b) Contributions defined. The term such contributions at least equalled the
the same household’’ as used in section ‘‘contributions’’ refers to contributions total cost of such individual’s support.
402(a)(2) of the Act (with respect to a actually provided by the contributor
spouse); the term ‘‘living with’’ as used from such individual’s property, or the Subpart C—Filing of Claims
in section 402(e) of the Act (with respect use thereof, or by the use of such § 725.301 Who may file a claim.
to a surviving spouse); and the term individual’s own credit.
‘‘living in the same household’’ as used (a) Any person who believes he or she
(c) Regular contributions and
in this subpart, means that a husband may be entitled to benefits under the
substantial contributions defined. The
and wife were customarily living Act may file a claim in accordance with
terms ‘‘regular contributions’’ and
together as husband and wife in the this subpart.
‘‘substantial contributions’’ mean (b) A claimant who has attained the
same place. contributions that are customary and age of 18, is mentally competent and
(2) The term ‘‘living in the miner’s sufficient to constitute a material factor physically able, may file a claim on his
household’’ as used in section 412(a)(5) in the cost of the individual’s support. or her own behalf.
of the Act (with respect to a parent, (d) Contributions and community (c) If a claimant is unable to file a
brother, or sister) means that the miner property. When a spouse receives and claim on his or her behalf because of a
and such parent, brother, or sister were uses for his or her support income from
legal or physical impairment, the
sharing the same residence. services or property, and such income,
following rules shall apply:
(b) Temporary absence. The under applicable State law, is the (1) A claimant between the ages of 16
temporary absence from the same community property of the wife and her and 18 years who is mentally competent
residence of either the miner, or the husband, no part of such income is a and not under the legal custody or care
miner’s spouse, parent, brother, or sister ‘‘contribution’’ by one spouse to the of another person, or a committee or
(as the case may be), does not preclude other’s support regardless of the legal institution, may upon filing a statement
a finding that one was ‘‘living with’’ the interest of the donor. However, when a to the effect, file a claim on his or her
other, or that they were ‘‘members of the spouse receives and uses for support,
own behalf. In any other case where the
same household.’’ The absence of one income from the services and the
claimant is under 18 years of age, only
such individual from the residence in property of the other spouse and, under
a person, or the manager or principal
which both had customarily lived shall, applicable State law, such income is
officer of an institution having legal
in the absence of evidence to the community property, all of such income
custody or care of the claimant may file
contrary, be considered temporary: is considered to be a contribution by the
a claim on his or her behalf.
(1) If such absence was due to service donor to the spouse’s support. (2) If a claimant over 18 years of age
in the Armed Forces of the United (e) Court order for support defined.
has a legally appointed guardian or
States; or References to a support order in this
committee, only the guardian or
subpart means any court order,
(2) If the period of absence from his committee may file a claim on his or her
judgment, or decree of a court of
or her residence did not exceed 6 behalf.
competent jurisdiction which requires
months and the absence was due to (3) If a claimant over 18 years of age
regular contributions that are a material
business or employment reasons, or is mentally incompetent or physically
factor in the cost of the individual’s
because of confinement in a penal unable to file a claim and is under the
support and which is in effect at the
institution or in a hospital, nursing care of another person, or an institution,
applicable time. If such contributions
home, or other curative institution; or only the person, or the manager or
are required by a court order, this
(3) In any other case, if the evidence principal officer of the institution
condition is met whether or not the
establishes that despite such absence responsible for the care of the claimant,
contributions were actually made.
they nevertheless reasonably expected may file a claim on his or her behalf.
(f) Written agreement defined. The
to resume physically living together. (4) For good cause shown, the Office
term ‘‘written agreement’’ in the phrase
(c) Relevant period of time. (1) The may accept a claim executed by a
‘‘substantial contributions pursuant to a
determination as to whether a surviving person other than one described in
written agreement’’, as used in this
spouse had been ‘‘living with’’ the paragraphs (c)(2) or (3) of this section.
subpart means an agreement signed by (d) Except as provided in § 725.305, in
miner shall be based upon the facts and the miner providing for substantial
circumstances as of the time of the order for a claim to be considered, the
contributions by the miner for the claimant must be alive at the time the
death of the miner. individual’s support. It must be in effect claim is filed.
(2) The determination as to whether a at the applicable time but it need not be
spouse is a ‘‘member of the same legally enforceable. § 725.302 Evidence of authority to file a
household’’ as the miner shall be based (g) One-half support defined. The claim on behalf of another.
upon the facts and circumstances with term ‘‘one-half support’’ means that the A person filing a claim on behalf of
respect to the period or periods of time miner made regular contributions, in a claimant shall submit evidence of his
as to which the issue of membership in cash or in kind, to the support of a or her authority to so act at the time of
the same household is material. divorced spouse at the specified time or filing or at a reasonable time thereafter
(3) The determination as to whether a for the specified period, and that the in accordance with the following:
parent, brother, or sister was ‘‘living in amount of such contributions equalled (a) A legally appointed guardian or
the miner’s household’’ shall take or exceeded one-half the total cost of committee shall provide the Office with
account of the 1-year period such individual’s support at such time certification of appointment by a proper
immediately prior to the miner’s death. or during such period. official of the court.
(b) Any other person shall provide a claimant’s lifetime within the period by a written request of the claimant or
statement describing his or her specified in paragraph (b) of this a person authorized to act on the
relationship to the claimant, the extent section. claimant’s behalf or on behalf of the
to which he or she has care of the (2) Where the claimant dies within claimant’s estate.
claimant, or his or her position as an the period specified in paragraph (b) of
officer of the institution of which the this section without filing a prescribed § 725.308 Time limits for filing claims.
claimant is an inmate. The Office may, claim form, and a person acting on (a) A claim for benefits filed under
at any time, require additional evidence behalf of the deceased claimant’s estate this part by, or on behalf of, a miner
to establish the authority of any such executes and files a prescribed claim shall be filed within three years after a
person. form within the period specified in medical determination of total disability
paragraph (c) of this section. due to pneumoconiosis which has been
§ 725.303 Date and place of filing of (b) Upon receipt of a written communicated to the miner or a person
claims. statement indicating an intention to responsible for the care of the miner, or
(a)(1) Claims for benefits shall be claim benefits, the Office shall notify within three years after the date of
delivered, mailed to, or presented at, the signer in writing that to be enactment of the Black Lung Benefits
any of the various district offices of the considered the claim must be executed Reform Act of 1977, whichever is later.
Social Security Administration, or any by the claimant or a proper party on his There is no time limit on the filing of
of the various offices of the Department or her behalf on the prescribed form and a claim by the survivor of a miner.
of Labor authorized to accept claims, or, filed with the Office within six months (b) A miner who is receiving benefits
in the case of a claim filed by or on from the date of mailing of the notice. under part B of title IV of the Act and
behalf of a claimant residing outside the (c) If before the notice specified in who is notified by HEW of the right to
United States, mailed or presented to paragraph (b) of this section is sent, or
seek medical benefits may file a claim
any office maintained by the Foreign within six months after such notice is
for medical benefits under part C of title
Service of the United States. A claim sent, the claimant dies without having
IV of the Act and this part. The
shall be considered filed on the day it executed and filed a prescribed form, or
Secretary of Health, Education, and
is received by the office in which it is without having had one executed and
Welfare is required to notify each miner
first filed. filed in his or her behalf, the Office shall
receiving benefits under part B of this
(2) A claim submitted to a Foreign upon receipt of notice of the claimant’s
right. Notwithstanding the provisions of
Service Office or any other agency or death advise his or her estate, or those
paragraph (a) of this section, a miner
subdivision of the U.S. Government living at his or her last known address,
notified of his or her rights under this
shall be forwarded to the Office and in writing that for the claim to be
considered, a prescribed claim form paragraph may file a claim under this
considered filed as of the date it was part on or before December 31, 1980.
received at the Foreign Service Office or must be executed and filed by a person
authorized to do so on behalf of the Any claim filed after that date shall be
other governmental agency or unit. untimely unless the time for filing has
(b) A claim submitted by mail shall be claimant’s estate within six months of
the date of the later notice. been enlarged for good cause shown.
considered filed as of the date of
(d) Claims based upon written (c) There shall be a rebuttable
delivery unless a loss or impairment of
statements indicating an intention to presumption that every claim for
benefit rights would result, in which
claim benefits not perfected in benefits is timely filed. However, except
case a claim shall be considered filed as
accordance with this section shall not as provided in paragraph (b) of this
of the date of its postmark. In the
be processed. section, the time limits in this section
absence of a legible postmark, other
are mandatory and may not be waived
evidence may be used to establish the § 725.306 Withdrawal of a claim. or tolled except upon a showing of
mailing date. (a) A claimant or an individual extraordinary circumstances.
§ 725.304 Forms and initial processing. authorized to execute a claim on a
claimant’s behalf or on behalf of § 725.309 Additional claims; effect of a
(a) Claims shall be filed on forms prior denial of benefits.
claimant’s estate under § 725.305, may
prescribed and approved by the Office.
withdraw a previously filed claim (a) A claimant whose claim for
The district office at which the claim is
provided that: benefits was previously approved under
filed will assist claimants in completing (1) He or she files a written request part B of title IV of the Act may file a
their forms. with the appropriate adjudication claim for benefits under this part as
(b) If the place at which a claim is officer indicating the reasons for seeking provided in §§ 725.308(b) and 725.702.
filed is an office of the Social Security withdrawal of the claim;
Administration, such office shall (b) If a claimant files a claim under
(2) The appropriate adjudication this part while another claim filed by
forward the completed claim form to an officer approves the request for
office of the DCMWC, which is the claimant under this part is still
withdrawal on the grounds that it is in pending, the later claim shall be merged
authorized to process the claim. the best interests of the claimant or his with the earlier claim for all purposes.
§ 725.305 When a written statement is or her estate, and; For purposes of this section, a claim
considered a claim. (3) Any payments made to the shall be considered pending if it has not
claimant in accordance with § 725.522 yet been finally denied.
(a) The filing of a statement signed by
are reimbursed.
an individual indicating an intention to (b) When a claim has been withdrawn (c) If a claimant files a claim under
claim benefits shall be considered to be under paragraph (a) of this section, the this part within one year after the
the filing of a claim for the purposes of claim will be considered not to have effective date of a final order denying a
this part under the following been filed. claim previously filed by the claimant
circumstances: under this part (see § 725.502(a)(2)), the
(1) The claimant or a proper person § 725.307 Cancellation of a request for later claim shall be considered a request
on his or her behalf (see § 725.301) withdrawal. for modification of the prior denial and
executes and files a prescribed claim At any time prior to approval, a shall be processed and adjudicated
form with the Office during the request for withdrawal may be canceled under § 725.310.
(d) If a claimant files a claim under claim. However, any stipulation made (c) At the conclusion of modification
this part more than one year after the by any party in connection with the proceedings before the district director,
effective date of a final order denying a prior claim shall be binding on that the district director may issue a
claim previously filed by the claimant party in the adjudication of the proposed decision and order (§ 725.418)
under this part (see § 725.502(a)(2)), the subsequent claim. or, if appropriate, deny the claim by
later claim shall be considered a (5) In any case in which a subsequent reason of abandonment (§ 725.409). In
subsequent claim for benefits. A claim is awarded, no benefits may be any case in which the district director
subsequent claim shall be processed and paid for any period prior to the date has initiated modification proceedings
adjudicated in accordance with the upon which the order denying the prior on his own initiative to alter the terms
provisions of subparts E and F of this claim became final. of an award or denial of benefits issued
part, except that the claim shall be (e) Notwithstanding any other by an administrative law judge, the
denied unless the claimant provision of this part or part 727 of this district director shall, at the conclusion
demonstrates that one of the applicable subchapter (see § 725.4(d)), a person of modification proceedings, forward
conditions of entitlement (see may exercise the right of review the claim for a hearing (§ 725.421). In
§§ 725.202(d) (miner), 725.212 (spouse), provided in paragraph (c) of § 727.103 at any case forwarded for a hearing, the
725.218 (child), and 725.222 (parent, the same time such person is pursuing administrative law judge assigned to
brother, or sister)) has changed since the an appeal of a previously denied part B hear such case shall consider whether
date upon which the order denying the claim under the law as it existed prior any additional evidence submitted by
prior claim became final. The to March 1, 1978. If the part B claim is the parties demonstrates a change in
applicability of this paragraph may be ultimately approved as a result of the condition and, regardless of whether the
waived by the operator or fund, as appeal, the claimant must immediately parties have submitted new evidence,
appropriate. The following additional notify the Secretary of Labor and, where whether the evidence of record
rules shall apply to the adjudication of appropriate, the coal mine operator, and demonstrates a mistake in a
a subsequent claim: all duplicate payments made under part determination of fact.
(1) Any evidence submitted in
C shall be considered an overpayment (d) An order issued following the
connection with any prior claim shall be
and arrangements shall be made to conclusion of modification proceedings
made a part of the record in the
insure the repayment of such may terminate, continue, reinstate,
subsequent claim, provided that it was
overpayments to the fund or an increase or decrease benefit payments or
not excluded in the adjudication of the
prior claim. operator, as appropriate. award benefits. Such order shall not
(2) For purposes of this section, the (f) In any case involving more than affect any benefits previously paid,
applicable conditions of entitlement one claim filed by the same claimant, except that an order increasing the
shall be limited to those conditions under no circumstances are duplicate amount of benefits payable based on a
upon which the prior denial was based. benefits payable for concurrent periods finding of a mistake in a determination
For example, if the claim was denied of eligibility. Any duplicate benefits of fact may be made effective on the
solely on the basis that the individual paid shall be subject to collection or date from which benefits were
was not a miner, the subsequent claim offset under subpart H of this part. determined payable by the terms of an
must be denied unless the individual earlier award. In the case of an award
§ 725.310 Modification of awards and which is decreased, no payment made
worked as a miner following the prior denials.
denial. Similarly, if the claim was in excess of the decreased rate prior to
denied because the miner did not meet (a) Upon his or her own initiative, or the date upon which the party requested
one or more of the eligibility criteria upon the request of any party on reconsideration under paragraph (a) of
contained in part 718 of this subchapter, grounds of a change in conditions or this section shall be subject to collection
the subsequent claim must be denied because of a mistake in a determination or offset under subpart H of this part,
unless the miner meets at least one of of fact, the district director may, at any provided the claimant is without fault
the criteria that he or she did not meet time before one year from the date of the as defined by § 725.543. In the case of
previously. last payment of benefits, or at any time an award which is decreased following
(3) If the applicable condition(s) of before one year after the denial of a the initiation of modification by the
entitlement relate to the miner’s claim, reconsider the terms of an award district director, no payment made in
physical condition, the subsequent or denial of benefits. excess of the decreased rate prior to the
claim may be approved only if new (b) Modification proceedings shall be date upon which the district director
evidence submitted in connection with conducted in accordance with the initiated modification proceedings
the subsequent claim establishes at least provisions of this part as appropriate, under paragraph (a) shall be subject to
one applicable condition of entitlement. except that the claimant and the collection or offset under subpart H of
A subsequent claim filed by a surviving operator, or group of operators or the this part, provided the claimant is
spouse, child, parent, brother, or sister fund, as appropriate, shall each be without fault as defined by § 725.543. In
shall be denied unless the applicable entitled to submit no more than one the case of an award which has become
conditions of entitlement in such claim additional chest X-ray interpretation, final and is thereafter terminated, no
include at least one condition unrelated one additional pulmonary function test, payment made prior to the date upon
to the miner’s physical condition at the one additional arterial blood gas study, which the party requested
time of his death. and one additional medical report in reconsideration under paragraph (a)
(4) If the claimant demonstrates a support of its affirmative case along shall be subject to collection or offset
change in one of the applicable with such rebuttal evidence and under subpart H of this part. In the case
conditions of entitlement, no findings additional statements as are authorized of an award which has become final and
made in connection with the prior by paragraphs (a)(2)(ii) and (a)(3)(ii) of is thereafter terminated following the
claim, except those based on a party’s § 725.414. Modification proceedings initiation of modification by the district
failure to contest an issue (see shall not be initiated before an director, no payment made prior to the
§ 725.463), shall be binding on any party administrative law judge or the Benefits date upon which the district director
in the adjudication of the subsequent Review Board. initiated modification proceedings
under paragraph (a) shall be subject to evidence and decide claims on the basis after having been subpoenaed, or upon
collection or offset under subpart H of of such evidence are called appearing refuses to take the oath as a
this part. ‘‘adjudication officers.’’ This section witness, or after having taken the oath
describes the status of black lung claims refuses to be examined according to law,
§ 725.311 Communications with respect to
adjudication officers. the district director, or the
claims; time computations.
(b) District Director. The district administrative law judge responsible for
(a) Unless otherwise specified by this director is that official of the DCMWC the adjudication of the claim, shall
part, all requests, responses, notices, or his designee who is authorized to certify the facts to the Federal district
decisions, orders, or other perform functions with respect to the court having jurisdiction in the place in
communications required or permitted development, processing, and which he or she is sitting (or to the U.S.
by this part shall be in writing. adjudication of claims in accordance District Court for the District of
(b) If required by this part, any Columbia if he or she is sitting in the
with this part.
document, brief, or other statement District) which shall thereupon in a
(c) Administrative law judge. An
submitted in connection with the summary manner hear the evidence as
administrative law judge is that official
adjudication of a claim under this part to the acts complained of, and, if the
appointed pursuant to 5 U.S.C. 3105 (or
shall be sent to each party to the claim evidence so warrants, punish such
Public Law 94–504) who is qualified to
by the submitting party. If proof of person in the same manner and to the
preside at hearings under 5 U.S.C. 557
service is required with respect to any
and is empowered by the Secretary to same extent as for a contempt
communication, such proof of service
conduct formal hearings with respect to, committed before the court, or commit
shall be submitted to the appropriate
and adjudicate, claims in accordance such person upon the same condition as
adjudication officer and filed as part of
with this part. A person appointed if the doing of the forbidden act had
the claim record.
(c) In computing any period of time under Public Law 94–504 shall not be occurred with reference to the process
described in this part, by any applicable considered an administrative law judge or in the presence of the court.
statute, or by the order of any for purposes of this part for any period
§ 725.352 Disqualification of adjudication
adjudication officer, the day of the act after March 1, 1979. officer.
or event from which the designated § 725.351 Powers of adjudication officers. (a) No adjudication officer shall
period of time begins to run shall not be conduct any proceedings in a claim in
(a) District Director. The district
included. The last day of the period which he or she is prejudiced or partial,
director is authorized to:
shall be included unless it is a Saturday, (1) Make determinations with respect or where he or she has any interest in
Sunday, or legal holiday, in which event the matter pending for decision. A
to claims as is provided in this part;
the period extends until the next day (2) Conduct conferences and informal decision to withdraw from the
which is not a Saturday, Sunday, or discovery proceedings as provided in consideration of a claim shall be within
legal holiday. ‘‘Legal holiday’’ includes this part; the discretion of the adjudication
New Year’s Day, Birthday of Martin (3) Compel the production of officer. If that adjudication officer
Luther King, Jr., Washington’s Birthday, documents by the issuance of a withdraws, another officer shall be
Memorial Day, Independence Day, subpoena; designated by the Director or the Chief
Labor Day, Columbus Day, Veterans (4) Prepare documents for the Administrative Law Judge, as the case
Day, Thanksgiving Day, Christmas Day signature of parties; may be, to complete the adjudication of
and any other day appointed as a (5) Issue appropriate orders as the claim.
holiday by the President or the Congress provided in this part; and (b) No adjudication officer shall be
of the United States. (6) Do all other things necessary to permitted to appear or act as a
(d) In computing any period of time enable him or her to discharge the representative of a party under this part
described in this part in which the while such individual is employed as an
duties of the office.
period within which to file a response (b) Administrative Law Judge. An adjudication officer. No adjudication
commences upon receipt of a document, administrative law judge is authorized officer shall be permitted at any time to
it shall be presumed, in the absence of to: appear or act as a representative in
evidence to the contrary, that the (1) Conduct formal hearings in connection with any case or claim in
document was received on the seventh accordance with the provisions of this which he or she was personally
day after it was mailed. In any case in part; involved. No fee or reimbursement shall
which a provision of this part requires (2) Administer oaths and examine be awarded under this part to an
a document to be sent to a person or witnesses; individual who acts in violation of this
party by certified mail, and the (3) Compel the production of paragraph.
document is not sent by certified mail, documents and appearance of witnesses (c) No adjudication officer shall act in
but the person or party actually received by the issuance of subpoenas; any claim involving a party which
the document, the document shall be (4) Issue decisions and orders with employed such adjudication officer
deemed to have been sent in compliance respect to claims as provided in this within one year before the adjudication
with the provisions of this part. In such part; and of such claim.
a case, any time period which (5) Do all other things necessary to (d) Notwithstanding paragraph (a) of
commences upon the service of the enable him or her to discharge the this section, no adjudication officer
document shall commence on the date duties of the office. shall be permitted to act in any claim
the document was received. (c) If any person in proceedings before involving a party who is related to the
Subpart D—Adjudication Officers; an adjudication officer disobeys or adjudication officer by consanguinity or
Parties and Representatives resists any lawful order or process, or affinity within the third degree as
misbehaves during a hearing or so near determined by the law of the place
§ 725.350 Who are the adjudication the place thereof as to obstruct the same, where such party is domiciled. Any
officers? or neglects to produce, after having been action taken by an adjudication officer
(a) General. The persons authorized ordered to do so, any pertinent book, in knowing violation of this paragraph
by the Secretary of Labor to accept paper or document, or refuses to appear shall be void.
§ 725.360 Parties to proceedings. determination of a claim under this part. § 725.363 Qualification of representative.
(a) Except as provided in § 725.361, Such appointment shall be made in (a) Attorney. Any attorney in good
no person other than the Secretary of writing or on the record at the hearing. standing who is admitted to practice
Labor and authorized personnel of the An attorney qualified in accordance before a court of a State, territory,
Department of Labor shall participate at with § 725.363(a) shall file a written district, or insular possession, or before
any stage in the adjudication of a claim declaration that he or she is authorized the Supreme Court of the United States
for benefits under this part, unless such to represent a party, or declare his or her or other Federal court and is not,
person is determined by the appropriate representation on the record at a formal pursuant to any provision of law,
adjudication officer to qualify under the hearing. Any other person (see prohibited from acting as a
provisions of this section as a party to § 725.363(b)) shall file a written notice representative, may be appointed as a
the claim. The following persons shall of appointment signed by the party or representative.
be parties: his or her legal guardian, or enter his or
(1) The claimant; (b) Other person. With the approval of
her appearance on the record at a formal
(2) A person other than a claimant, the adjudication officer, any other
hearing if the party he or she seeks to
authorized to execute a claim on such person may be appointed as a
represent is present and consents to the representative so long as that person is
claimant’s behalf under § 725.301;
(3) Any coal mine operator notified representation. Any written declaration not, pursuant to any provision of law,
under § 725.407 of its possible liability or notice required by this section shall prohibited from acting as a
for the claim; include the OWCP number assigned by representative.
(4) Any insurance carrier of such the Office and shall be sent to the Office
operator; and or, for representation at a formal § 725.364 Authority of representative.
(5) The Director in all proceedings hearing, to the Chief Administrative
A representative, appointed and
relating to a claim for benefits under Law Judge. In any case, such
qualified as provided in §§ 725.362 and
this part. representative must be qualified under 725.363, may make or give on behalf of
(b) A widow, child, parent, brother, or § 725.363. No authorization for the party he or she represents, any
sister, or the representative of a representation or agreement between a request or notice relative to any
decedent’s estate, who makes a showing claimant and representative as to the proceeding before an adjudication
in writing that his or her rights with amount of a fee, filed with the Social officer, including formal hearing and
respect to benefits may be prejudiced by Security Administration in connection review, except that such representative
a decision of an adjudication officer, with a claim under part B of title IV of may not execute a claim for benefits,
may be made a party. the Act, shall be valid under this part. unless he or she is a person designated
(c) Any coal mine operator or prior A claimant who has previously in § 725.301 as authorized to execute a
operator or insurance carrier which has authorized a person to represent him or claim. A representative shall be entitled
not been notified under § 725.407 and her in connection with a claim to present or elicit evidence and make
which makes a showing in writing that originally filed under part B of title IV allegations as to facts and law in any
its rights may be prejudiced by a may renew such authorization by filing proceeding affecting the party
decision of an adjudication officer may a statement to such effect with the represented and to obtain information
be made a party. Office or appropriate adjudication with respect to the claim of such party
(d) Any other individual may be made officer. to the same extent as such party. Notice
a party if that individual’s rights with given to any party of any administrative
respect to benefits may be prejudiced by (b) Any party may waive his or her
right to be represented in the action, determination, or decision, or
a decision to be made. request to any party for the production
adjudication of a claim. If an
§ 725.361 Party amicus curiae. adjudication officer determines, after an of evidence shall be sent to the
At the discretion of the Chief representative of such party and such
appropriate inquiry has been made, that
Administrative Law Judge or the notice or request shall have the same
a claimant who has been informed of his
administrative law judge assigned to the force and effect as if it had been sent to
or her right to representation does not
case, a person or entity which is not a the party represented.
wish to obtain the services of a
party may be allowed to participate representative, such adjudication officer § 725.365 Approval of representative’s
amicus curiae in a formal hearing only shall proceed to consider the claim in fees; lien against benefits.
as to an issue of law. A person may accordance with this part, unless it is
participate amicus curiae in a formal No fee charged for representation
apparent that the claimant is, for any services rendered to a claimant with
hearing upon written request submitted reason, unable to continue without the
with supporting arguments prior to the respect to any claim under this part
help of a representative. However, it shall be valid unless approved under
hearing. If the request is granted, the shall not be necessary for an
administrative law judge hearing the this subpart. No contract or prior
adjudication officer to inquire as to the agreement for a fee shall be valid. In
case will inform the party of the extent
ability of a claimant to proceed without cases where the obligation to pay the
to which participation will be
representation in any adjudication attorney’s fee is upon the claimant, the
permitted. The request may, however,
taking place without a hearing. The amount of the fee awarded may be made
be denied summarily and without
explanation. failure of a claimant to obtain a lien upon the benefits due under an
representation in an adjudication taking award and the adjudication officer shall
§ 725.362 Representation of parties. place without a hearing shall be fix, in the award approving the fee, such
(a) Except for the Secretary of Labor, considered a waiver of the claimant’s lien and the manner of payment of the
whose interests shall be represented by right to representation. However, at any fee. Any representative who is not an
the Solicitor of Labor or his or her time during the processing or attorney may be awarded a fee for
designee, each of the parties may adjudication of a claim, any claimant services under this subpart, except that
appoint an individual to represent his or may revoke such waiver and obtain a no lien may be imposed with respect to
her interest in any proceeding for representative. such representative’s fee.
§ 725.366 Fees for representatives. been submitted to the Office in schedule for the submission of
(a) A representative seeking a fee for connection with the claim. additional evidence under § 725.410.
services performed on behalf of a (d) Upon receipt of a request for The fund shall be liable for an attorney’s
claimant shall make application therefor approval of a fee, such request shall be fee with respect to all necessary services
to the district director, administrative reviewed and evaluated by the performed by the claimant’s attorney;
law judge, or appropriate appellate appropriate adjudication officer and a (3) The claimant submits a bill for
tribunal, as the case may be, before fee award issued. Any party may request medical treatment, and the party liable
whom the services were performed. The reconsideration of a fee awarded by the for the payment of benefits declines to
application shall be filed and served adjudication officer. A revised or pay the bill on the grounds that the
upon the claimant and all other parties modified fee award may then be issued, treatment is unreasonable, or is for a
within the time limits allowed by the if appropriate. condition that is not compensable. The
district director, administrative law (e) Each request for reconsideration or responsible operator or fund, as
judge, or appropriate appellate tribunal. review of a fee award shall be in writing appropriate, shall be liable for an
The application shall be supported by a and shall contain supporting statements attorney’s fee with respect to all
complete statement of the extent and or information pertinent to any increase necessary services performed by the
character of the necessary work done, or decrease requested. If a fee awarded claimant’s attorney;
and shall indicate the professional by a district director is disputed, such (4) A beneficiary seeks an increase in
award shall be appealable directly to the the amount of benefits payable, and the
status (e.g., attorney, paralegal, law
Benefits Review Board. In such a fee responsible operator or fund contests
clerk, lay representative or clerical) of
dispute case, the record before the the claimant’s right to that increase. If
the person performing such work, and
Board shall consist of the order of the the beneficiary is successful in securing
the customary billing rate for each such
district director awarding or denying the an increase in the amount of benefits
person. The application shall also
fee, the application for a fee, any written payable, the operator or fund shall be
include a listing of reasonable
statement in opposition to the fee and liable for an attorney’s fee with respect
unreimbursed expenses, including those
the documentary evidence contained in to all necessary services performed by
for travel, incurred by the representative
the file which verifies or refutes any the beneficiary’s attorney;
or an employee of a representative in (5) The responsible operator or fund
establishing the claimant’s case. Any fee item claimed in the fee application.
seeks a decrease in the amount of
requested under this paragraph shall § 725.367 Payment of a claimant’s benefits payable. If the beneficiary is
also contain a description of any fee attorney’s fee by responsible operator or successful in resisting the request for a
requested, charged, or received for fund. decrease in the amount of benefits
services rendered to the claimant before (a) An attorney who represents a payable, the operator or fund shall be
any State or Federal court or agency in claimant in the successful prosecution liable for an attorney’s fee with respect
connection with a related matter. of a claim for benefits may be entitled to all necessary services performed by
(b) Any fee approved under paragraph to collect a reasonable attorney’s fee the beneficiary’s attorney. A request for
(a) of this section shall be reasonably from the responsible operator that is information clarifying the amount of
commensurate with the necessary work ultimately found liable for the payment benefits payable shall not be considered
done and shall take into account the of benefits, or, in a case in which there a request to decrease that amount.
quality of the representation, the is no operator who is liable for the (b) Any fee awarded under this
qualifications of the representative, the payment of benefits, from the fund. section shall be in addition to the award
complexity of the legal issues involved, Generally, the operator or fund liable for of benefits, and shall be awarded, in an
the level of proceedings to which the the payment of benefits shall be liable order, by the district director,
claim was raised, the level at which the for the payment of the claimant’s administrative law judge, Board or
representative entered the proceedings, attorney’s fees where the operator or court, before whom the work was
and any other information which may fund, as appropriate, took action, or performed. The operator or fund shall
be relevant to the amount of fee acquiesced in action, that created an pay such fee promptly and directly to
requested. No fee approved shall adversarial relationship between itself the claimant’s attorney in a lump sum
include payment for time spent in and the claimant. The fees payable after the award of benefits becomes
preparation of a fee application. No fee under this section shall include final.
shall be approved for work done on reasonable fees for necessary services (c) Section 205(a) of the Black Lung
claims filed between December 30, performed prior to the creation of the Benefits Amendments of 1981, Public
1969, and June 30, 1973, under part B adversarial relationship. Circumstances Law 97–119, amended section 422 of
of title IV of the Act, except for services in which a successful attorney’s fees the Act and relieved operators and
rendered on behalf of the claimant in shall be payable by the responsible carriers from liability for the payment of
regard to the review of the claim under operator or the fund include, but are not benefits on certain claims. Payment of
section 435 of the Act and part 727 of limited to, the following: benefits on those claims was made the
this subchapter (see § 725.4(d)). (1) The responsible operator responsibility of the fund. The claims
(c) In awarding a fee, the appropriate designated by the district director (see subject to this transfer of liability are
adjudication officer shall consider, and § 725.410(a)(3)) fails to accept the described in § 725.496. On claims
shall add to the fee, the amount of claimant’s entitlement to benefits within subject to the transfer of liability
reasonable and unreimbursed expenses the 30-day period provided by described in this paragraph the fund
incurred in establishing the claimant’s § 725.412(b) and is ultimately will pay all fees and costs which have
case. Reimbursement for travel expenses determined to be liable for benefits. The been or will be awarded to claimant’s
incurred by an attorney shall be operator shall be liable for an attorney’s attorneys which were or would have
determined in accordance with the fee with respect to all necessary services become the liability of an operator or
provisions of § 725.459(a). No performed by the claimant’s attorney; carrier but for the enactment of the 1981
reimbursement shall be permitted for (2) There is no operator that may be Amendments and which have not
expenses incurred in obtaining medical held liable for the payment of benefits, already been paid by such operator or
or other evidence which has previously and the district director issues a carrier. Section 9501(d)(7) of the
Internal Revenue Code (26 U.S.C.), inform the claimant of what further whom the miner or the miner’s spouse
which was also enacted as a part of the evidence is necessary and request that is related to the fourth degree of
1981 Amendments to the Act, expressly such evidence be submitted within a consanguinity, and the miner may not
prohibits the fund from reimbursing an specified reasonable time which may, select any physician who has examined
operator or carrier for any attorney fees upon request, be extended for good or provided medical treatment to the
or costs which it has paid on cases cause. miner within the twelve months
subject to the transfer of liability preceding the date of the miner’s
provisions. § 725.405 Development of medical application. The district director will
evidence; scheduling of medical
examinations and tests.
make arrangements for the miner to be
Subpart E—Adjudication of Claims by given a complete pulmonary evaluation
the District Director (a) Upon receipt of a claim, the by that facility or physician. The results
district director shall ascertain whether of the complete pulmonary evaluation
§ 725.401 Claims development—general. the claim was filed by or on account of shall not be counted as evidence
After a claim has been received by the a miner as defined in § 725.202, and in submitted by the miner under § 725.414.
district director, the district director the case of a claim filed on account of
(c) If any medical examination or test
shall take such action as is necessary to a deceased miner, whether the claim
conducted under paragraph (a) of this
develop, process, and make was filed by an eligible survivor of such
section is not administered or reported
determinations with respect to the claim miner as defined in subpart B of this
in substantial compliance with the
as provided in this subpart. part.
provisions of part 718 of this
(b) In the case of a claim filed by or
§ 725.402 Approved State workers’ subchapter, or does not provide
on behalf of a miner, the district director
compensation law. sufficient information to allow the
shall, where necessary, schedule the
If a district director determines that district director to decide whether the
miner for a medical examination and
any claim filed under this part is one miner is eligible for benefits, the district
testing under § 725.406.
subject to adjudication under a workers’ director shall schedule the miner for
(c) In the case of a claim filed by or
compensation law approved under part further examination and testing. Where
on behalf of a survivor of a miner, the
722 of this subchapter, he or she shall the deficiencies in the report are the
district director shall obtain whatever
advise the claimant of this result of a lack of effort on the part of
medical evidence is necessary and
determination and of the Act’s the miner, the miner will be afforded
available for the development and
requirement that the claim must be filed one additional opportunity to produce a
evaluation of the claim.
under the applicable State workers’ (d) The district director shall, where satisfactory result. In order to determine
compensation law. The district director appropriate, collect other evidence whether any medical examination or
shall then prepare a proposed decision necessary to establish: test was administered and reported in
and order dismissing the claim for lack (1) The nature and duration of the substantial compliance with the
of jurisdiction pursuant to § 725.418 and miner’s employment; and provisions of part 718 of this
proceed as appropriate. (2) All other matters relevant to the subchapter, the district director may
determination of the claim. have any component of such
§ 725.403 [Reserved] examination or test reviewed by a
(e) If at any time during the
§ 725.404 Development of evidence— processing of the claim by the district physician selected by the district
general. director, the evidence establishes that director.
(a) Employment history. Each the claimant is not entitled to benefits (d) After the physician completes the
claimant shall furnish the district under the Act, the district director may report authorized by paragraph (a), the
director with a complete and detailed terminate evidentiary development of district director will inform the miner
history of the coal miner’s employment the claim and proceed as appropriate. that he may elect to have the results of
and, upon request, supporting the objective testing sent to his treating
documentation. § 725.406 Medical examinations and tests. physician for use in preparing a medical
(b) Matters of record. Where it is (a) The Act requires the Department to opinion. The district director will also
necessary to obtain proof of age, provide each miner who applies for inform the claimant that any medical
marriage or termination of marriage, benefits with the opportunity to opinion submitted by his treating
death, family relationship, dependency undergo a complete pulmonary physician will count as one of the two
(see subpart B of this part), or any other evaluation at no expense to the miner. medical opinions that the miner may
fact which may be proven as a matter of A complete pulmonary evaluation submit under § 725.414 of this part.
public record, the claimant shall furnish includes a report of physical (e) The cost of any medical
such proof to the district director upon examination, a pulmonary function examination or test authorized under
request. study, a chest roentgenogram and, this section, including the cost of travel
(c) Documentary evidence. If a unless medically contraindicated, a to and from the examination, shall be
claimant is required to submit blood gas study. paid by the fund. No reimbursement for
documents to the district director, the (b) As soon as possible after a miner overnight accommodations shall be
claimant shall submit either the files an application for benefits, the authorized unless the district director
original, a certified copy or a clear district director will provide the miner determines that an adequate testing
readable copy thereof. The district with a list of medical facilities and facility is unavailable within one day’s
director or administrative law judge physicians in the state of the miner’s round trip travel by automobile from the
may require the submission of an residence and states contiguous to the miner’s residence. The fund shall be
original document or certified copy state of the miner’s residence that the reimbursed for such payments by an
thereof, if necessary. Office has authorized to perform operator, if any, found liable for the
(d) Submission of insufficient complete pulmonary evaluations. The payment of benefits to the claimant. If
evidence. In the event a claimant miner shall select one of the facilities or an operator fails to repay such expenses,
submits insufficient evidence regarding physicians on the list, provided that the with interest, upon request of the Office,
any matter, the district director shall miner may not select any physician to the entire amount may be collected in
an action brought under section 424 of operators of their potential liability after (1) To undergo a required medical
the Act and § 725.603 of this part. a case has been referred to the Office of examination without good cause; or,
Administrative Law Judges, unless the (2) To submit evidence sufficient to
§ 725.407 Identification and notification of make a determination of the claim; or,
case was referred for a hearing to
responsible operator. (3) To pursue the claim with
determine whether the claim was
(a) Upon receipt of the miner’s properly denied as abandoned pursuant reasonable diligence; or,
employment history, the district to § 725.409. (4) To attend an informal conference
director shall investigate whether any without good cause.
operator may be held liable for the § 725.408 Operator’s response to (b)(1) If the district director
payment of benefits as a responsible notification. determines that a denial by reason of
operator in accordance with the criteria (a)(1) An operator which receives abandonment under paragraphs (a)(1)
contained in Subpart G of this part. notification under § 725.407 shall, through (3) of this section is
(b) The district director may identify within 30 days of receipt, file a response appropriate, he or she shall notify the
one or more operators potentially liable indicating its intent to accept or contest claimant of the reasons for such denial
for the payment of benefits in its identification as a potentially liable and of the action which must be taken
accordance with the criteria set forth in operator. The operator’s response shall to avoid a denial by reason of
§ 725.495 of this part. The district also be sent to the claimant by regular abandonment. If the claimant completes
director shall notify each such operator mail. the action requested within the time
of the existence of the claim. Where the (2) If the operator contests its allowed, the claim shall be developed,
records maintained by the Office identification, it shall, on a form processed and adjudicated as specified
pursuant to part 726 of this subchapter supplied by the district director, state in this part. If the claimant does not
indicate that the operator had obtained the precise nature of its disagreement by fully comply with the action requested
a policy of insurance, and the claim falls admitting or denying each of the by the district director, the district
within such policy, the notice provided following assertions. In answering these director shall notify the claimant that
pursuant to this section shall also be assertions, the term ‘‘operator’’ shall the claim has been denied by reason of
sent to the operator’s carrier. Any include any operator for which the abandonment. Such notification shall be
operator or carrier notified of the claim identified operator may be considered a served on the claimant and all other
shall thereafter be considered a party to successor operator pursuant to parties to the claim by certified mail.
the claim in accordance with § 725.360 § 725.492. (2) In any case in which a claimant
of this part unless it is dismissed by an (i) That the named operator was an has failed to attend an informal
adjudication officer and is not thereafter operator for any period after June 30, conference and has not provided the
notified again of its potential liability. 1973; district director with his reasons for
(c) The notification issued pursuant to (ii) That the operator employed the failing to attend, the district director
this section shall include a copy of the miner as a miner for a cumulative shall ask the claimant to explain his
claimant’s application and a copy of all period of not less than one year; absence. In considering whether the
evidence obtained by the district (iii) That the miner was exposed to claimant had good cause for his failure
director relating to the miner’s coal mine dust while working for the to attend the conference, the district
employment. The district director may operator; director shall consider all relevant
request the operator to answer specific (iv) That the miner’s employment circumstances, including the age,
questions, including, but not limited to, with the operator included at least one education, and health of the claimant, as
questions related to the nature of its working day after December 31, 1969; well as the distance between the
operations, its relationship with the and claimant’s residence and the location of
miner, its financial status, including any (v) That the operator is capable of the conference. If the district director
insurance obtained to secure its assuming liability for the payment of concludes that the claimant had good
obligations under the Act, and its benefits. cause for failing to attend the
relationship with other potentially (3) An operator which receives conference, he may continue processing
liable operators. A copy of any notification under § 725.407, and which the claim, including, where appropriate
notification issued pursuant to this fails to file a response within the time under § 725.416, the scheduling of an
section shall be sent to the claimant by limit provided by this section, shall not informal conference. If the claimant
regular mail. be allowed to contest its liability for the does not supply the district director
(d) If at any time before a case is payment of benefits on any of the with his reasons for failing to attend the
referred to the Office of Administrative grounds set forth in paragraph (a)(2). conference within 30 days of the date of
Law Judges, the district director (b)(1) Within 90 days of the date on the district director’s request, or the
determines that an operator which may which it receives notification under district director concludes that the
be liable for the payment of benefits has § 725.407, an operator may submit reasons supplied by the claimant do not
not been notified under this section or documentary evidence in support of its establish good cause, the district
has been incorrectly dismissed pursuant position. director shall notify the claimant that
to § 725.410(a)(3), the district director (2) No documentary evidence relevant the claim has been denied by reason of
shall give such operator notice of its to the grounds set forth in paragraph abandonment. Such notification shall be
potential liability in accordance with (a)(2) may be admitted in any further served on the claimant and all other
this section. The adjudication officer proceedings unless it is submitted parties to the claim by certified mail.
shall then take such further action on within the time limits set forth in this (c) The denial of a claim by reason of
the claim as may be appropriate. There section. abandonment shall become effective
shall be no time limit applicable to a and final unless, within 30 days after
later identification of an operator under § 725.409 Denial of a claim by reason of the denial is issued, the claimant
this paragraph if the operator abandonment. requests a hearing. Following the
fraudulently concealed its identity as an (a) A claim may be denied at any time expiration of the 30-day period, a new
employer of the miner. The district by the district director by reason of claim may be filed at any time pursuant
director may not notify additional abandonment where the claimant fails: to § 725.309. For purposes of § 725.309,
a denial by reason of abandonment shall discretion, dismiss as parties any of the director concludes that the results of the
be deemed a finding that the claimant operators notified of their potential complete pulmonary evaluation support
has not established any applicable liability pursuant to § 725.407. If the a finding of eligibility, and that there is
condition of entitlement. If the claimant district director thereafter determines no operator responsible for the payment
timely requests a hearing, the district that the participation of a party of benefits, the district director shall
director shall refer the case to the Office dismissed pursuant to this section is issue a proposed decision and order in
of Administrative Law Judges in required, he may once again notify the accordance with § 725.418 of this part.
accordance with § 725.421. Except upon operator in accordance with
the motion or written agreement of the § 725.407(d). § 725.412 Operator’s response.
Director, the hearing will be limited to (4) The schedule shall notify the (a)(1) Within 30 days after the district
the issue of whether the claim was claimant and the designated responsible director issues a schedule pursuant to
properly denied by reason of operator that they have the right to § 725.410 of this part containing a
abandonment. If the hearing is limited obtain further adjudication of the claim designation of the responsible operator
to the issue of abandonment and the in accordance with this subpart, and liable for the payment of benefits, that
administrative law judge determines that they have the right to submit operator shall file a response with
that the claim was not properly denied additional evidence in accordance with regard to its liability. The response shall
by reason of abandonment, he shall this subpart. The schedule shall also specifically indicate whether the
remand the claim to the district director notify the claimant that he has the right operator agrees or disagrees with the
for the completion of administrative to obtain representation, under the district director’s designation.
processing. terms set forth in subpart D, in order to (2) If the responsible operator
assist him. In a case in which the designated by the district director does
§ 725.410 Submission of additional district director has designated a not file a timely response, it shall be
evidence.
responsible operator pursuant to deemed to have accepted the district
(a) After the district director paragraph (a)(3), the schedule shall director’s designation with respect to its
completes the development of medical further notify the claimant that if the liability, and to have waived its right to
evidence under § 725.405 of this part, operator fails to accept the claimant’s contest its liability in any further
including the complete pulmonary entitlement to benefits within the time proceeding conducted with respect to
evaluation authorized by § 725.406, and limit provided by § 725.412, the cost of the claim.
receives the responses and evidence obtaining additional medical and other (b) The responsible operator
submitted pursuant to § 725.408, he necessary evidence, along with a designated by the district director may
shall issue a schedule for the reasonable attorney’s fee, shall be also file a statement accepting
submission of additional evidence. The reimbursed by the responsible operator claimant’s entitlement to benefits. If that
schedule shall contain the following in the event that the claimant operator fails to file a timely response to
information: establishes his entitlement to benefits the district director’s designation, the
(1) If the claim was filed by, or on payable by that operator. In a case in district director shall, upon receipt of
behalf of, a miner, the schedule shall which there is no operator liable for the such a statement, issue a proposed
contain a summary of the complete payment of benefits, the schedule shall decision and order in accordance with
pulmonary evaluation administered notify the claimant that the cost of § 725.418 of this part. If the operator
pursuant to § 725.406. If the claim was obtaining additional medical and other fails to file a statement accepting the
filed by, or on behalf of, a survivor, the necessary evidence, along with a claimant’s entitlement to benefits within
schedule shall contain a summary of reasonable attorney’s fee, shall be 30 days after the district director issues
any medical evidence developed by the reimbursed by the fund. a schedule pursuant to § 725.410 of this
district director pursuant to (b) The schedule shall allow all part, the operator shall be deemed to
§ 725.405(c). parties not less than 60 days within have contested the claimant’s
(2) The schedule shall contain the which to submit additional evidence, entitlement.
district director’s preliminary analysis including evidence relevant to the
of the medical evidence. If the district claimant’s eligibility for benefits and § 725.413 [Reserved].
director believes that the evidence fails evidence relevant to the liability of the
to establish any necessary element of § 725.414 Development of evidence.
designated responsible operator, and
entitlement, he shall inform the (a) Medical evidence.
shall provide not less than an additional
claimant of the element of entitlement (1) For purposes of this section, a
30 days within which the parties may
not established and the reasons for his medical report shall consist of a
respond to evidence submitted by other
conclusions and advise the claimant physician’s written assessment of the
parties. Any such evidence must meet
that, unless he submits additional miner’s respiratory or pulmonary
the requirements set forth in § 725.414
evidence, the district director will issue condition. A medical report may be
in order to be admitted into the record.
a proposed decision and order denying (c) The district director shall serve a prepared by a physician who examined
the claim. copy of the schedule, together with a the miner and/or reviewed the available
(3) The schedule shall contain the copy of all of the evidence developed, admissible evidence. A physician’s
district director’s designation of a on the claimant, the designated written assessment of a single objective
responsible operator liable for the responsible operator, and all other test, such as a chest X-ray or a
payment of benefits. In the event that operators which received notification pulmonary function test, shall not be
the district director has designated as pursuant to § 725.407. The schedule considered a medical report for
the responsible operator an employer shall be served on each party by purposes of this section.
other than the employer who last certified mail. (2)(i) The claimant shall be entitled to
employed the claimant as a miner, the submit, in support of his affirmative
district director shall include, with the § 725.411 Initial adjudication in Trust Fund case, no more than two chest X-ray
schedule, a copy of the statements cases. interpretations, the results of no more
required by § 725.495(d) of this part. Notwithstanding the requirements of than two pulmonary function tests, the
The district director may, in his § 725.410 of this part, if the district results of no more than two arterial
blood gas studies, no more than one distance traveled by the miner in whether the medical bill is compensable
report of an autopsy, no more than one obtaining the complete pulmonary under the standard set forth in § 725.701
report of each biopsy, and no more than evaluation provided by § 725.406 of this of this part.
two medical reports. Any chest X-ray part, whichever is greater, unless a trip (4) Notwithstanding the limitations in
interpretations, pulmonary function test of greater distance is authorized in paragraphs (a)(2) and (a)(3) of this
results, blood gas studies, autopsy writing by the district director. If a section, any record of a miner’s
report, biopsy report, and physicians’ miner unreasonably refuses— hospitalization for a respiratory or
opinions that appear in a medical report (A) To provide the Office or the pulmonary or related disease, or
must each be admissible under this designated responsible operator with a medical treatment for a respiratory or
paragraph or paragraph (a)(4) of this complete statement of his or her pulmonary or related disease, may be
section. medical history and/or to authorize received into evidence.
(ii) The claimant shall be entitled to access to his or her medical records, or (5) A copy of any documentary
submit, in rebuttal of the case presented (B) To submit to an evaluation or test evidence submitted by a party must be
by the party opposing entitlement, no requested by the district director or the served on all other parties to the claim.
more than one physician’s designated responsible operator, the If the claimant is not represented by an
interpretation of each chest X-ray, miner’s claim may be denied by reason attorney, the district director shall mail
pulmonary function test, arterial blood of abandonment. (See § 725.409 of this a copy of all documentary evidence
gas study, autopsy or biopsy submitted part). submitted by the claimant to all other
by the designated responsible operator (ii) The responsible operator shall be parties to the claim. Following the
or the fund, as appropriate, under entitled to submit, in rebuttal of the case development and submission of
paragraph (a)(3)(i) or (a)(3)(iii) of this presented by the claimant, no more than affirmative medical evidence, the
section and by the Director pursuant to one physician’s interpretation of each parties may submit rebuttal evidence in
§ 725.406. In any case in which the chest X-ray, pulmonary function test, accordance with the schedule issued by
party opposing entitlement has arterial blood gas study, autopsy or the district director.
submitted the results of other testing biopsy submitted by the claimant under (b) Evidence pertaining to liability. (1)
pursuant to § 718.107, the claimant shall paragraph (a)(2)(i) of this section and by Except as provided by § 725.408(b)(2),
be entitled to submit one physician’s the Director pursuant to § 725.406. In the designated responsible operator may
assessment of each piece of such any case in which the claimant has submit evidence to demonstrate that it
evidence in rebuttal. In addition, where submitted the results of other testing is not the potentially liable operator that
the responsible operator or fund has pursuant to § 718.107, the responsible most recently employed the claimant.
submitted rebuttal evidence under operator shall be entitled to submit one (2) Any other party may submit
paragraph (a)(3)(ii) or (a)(3)(iii) of this physician’s assessment of each piece of evidence regarding the liability of the
section with respect to medical testing such evidence in rebuttal. In addition, designated responsible operator or any
submitted by the claimant, the claimant where the claimant has submitted other operator.
shall be entitled to submit an additional rebuttal evidence under paragraph (3) A copy of any documentary
statement from the physician who (a)(2)(ii) of this section, the responsible evidence submitted under this
originally interpreted the chest X-ray or operator shall be entitled to submit an paragraph must be mailed to all other
administered the objective testing. additional statement from the physician parties to the claim. Following the
Where the rebuttal evidence tends to who originally interpreted the chest X- submission of affirmative evidence, the
undermine the conclusion of a ray or administered the objective parties may submit rebuttal evidence in
physician who prepared a medical testing. Where the rebuttal evidence accordance with the schedule issued by
report submitted by the claimant, the tends to undermine the conclusion of a the district director.
claimant shall be entitled to submit an physician who prepared a medical (c) Testimony. A physician who
additional statement from the physician report submitted by the responsible prepared a medical report admitted
who prepared the medical report operator, the responsible operator shall under this section may testify with
explaining his conclusion in light of the be entitled to submit an additional respect to the claim at any formal
rebuttal evidence. statement from the physician who hearing conducted in accordance with
(3)(i) The responsible operator prepared the medical report explaining subpart F of this part, or by deposition.
designated pursuant to § 725.410 shall his conclusion in light of the rebuttal If a party has submitted fewer than two
be entitled to obtain and submit, in evidence. medical reports as part of that party’s
support of its affirmative case, no more (iii) In a case in which the district affirmative case under this section, a
than two chest X-ray interpretations, the director has not identified any physician who did not prepare a
results of no more than two pulmonary potentially liable operators, or has medical report may testify in lieu of
function tests, the results of no more dismissed all potentially liable such a medical report. The testimony of
than two arterial blood gas studies, no operators under § 725.410(a)(3), the such a physician shall be considered a
more than one report of an autopsy, no district director shall be entitled to medical report for purposes of the
more than one report of each biopsy, exercise the rights of a responsible limitations provided by this section. A
and no more than two medical reports. operator under this section, except that party may offer the testimony of no
Any chest X-ray interpretations, the evidence obtained in connection more than two physicians under the
pulmonary function test results, blood with the complete pulmonary provisions of this section unless the
gas studies, autopsy report, biopsy evaluation performed pursuant to adjudication officer finds good cause
report, and physicians’ opinions that § 725.406 shall be considered evidence under paragraph (b)(1) of § 725.456 of
appear in a medical report must each be obtained and submitted by the Director, this part. In accordance with the
admissible under this paragraph or OWCP, for purposes of paragraph schedule issued by the district director,
paragraph (a)(4) of this section. In (a)(3)(i) of this section. In a case all parties shall notify the district
obtaining such evidence, the involving a dispute concerning medical director of the name and current address
responsible operator may not require the benefits under § 725.708 of this part, the of any potential witness whose
miner to travel more than 100 miles district director shall be entitled to testimony pertains to the liability of a
from his or her place of residence, or the develop medical evidence to determine potentially liable operator or the
designated responsible operator. Absent conference in any claim where it (e) Procedures to be followed at a
such notice, the testimony of a witness appears that such conference will assist conference shall be within the
relevant to the liability of a potentially in the voluntary resolution of any issue discretion of the district director.
liable operator or the designated raised with respect to the claim. The
responsible operator shall not be conference proceedings shall not be § 725.417 Action at the conclusion of
conference.
admitted in any hearing conducted with stenographically reported and sworn
respect to the claim unless the testimony shall not be taken. Any (a) At the conclusion of a conference,
administrative law judge finds that the conference conducted pursuant to this the district director shall prepare a
lack of notice should be excused due to paragraph shall be held no later than 90 stipulation of contested and
extraordinary circumstances. days after the conclusion of the period uncontested issues which shall be
(d) Except to the extent permitted by permitted by § 725.410(b) of this part for signed by the parties and the district
§ 725.456 and § 725.310(b), the the submission of evidence, unless one director. If a hearing is conducted with
limitations set forth in this section shall of the parties requests that the time respect to the claim, this stipulation
apply to all proceedings conducted with period be extended for good cause shall be submitted to the Office of
respect to a claim, and no documentary shown. If the district director is unable Administrative Law Judges and placed
evidence pertaining to liability shall be to hold the conference within the time in the claim record.
admitted in any further proceeding period permitted by this paragraph, he
shall proceed to issue a proposed (b) In appropriate cases, the district
conducted with respect to a claim
decision and order under § 725.418 of director may permit a reasonable time
unless it is submitted to the district
this part. for the submission of additional
director in accordance with this section.
(b) The district director shall notify evidence following a conference,
§ 725.415 Action by the district director the parties of a definite time and place provided that such evidence does not
after development of evidence. for the conference. The district director exceed the limits set forth in § 725.414.
(a) At the end of the period permitted shall advise the parties that they have a The district director may also notify
under § 725.410(b) for the submission of right to representation at the conference, additional operators of their potential
evidence, the district director shall by an attorney or a lay representative, liability pursuant to § 725.407, or issue
review the claim on the basis of all and that no conference shall take place another schedule for the submission of
evidence submitted in accordance with unless the parties are represented. A additional evidence pursuant to
§ 725.414. coal mine operator which is self- § 725.410, designating another
(b) After review of all evidence insured, or which is covered by a policy potentially liable operator as the
submitted, the district director may of insurance for the claim for which a responsible operator liable for the
issue another schedule for the conference is scheduled, shall be payment of benefits, in order to allow
submission of additional evidence deemed to be represented. The that operator an opportunity to submit
pursuant to § 725.410, identifying notification shall set forth the specific evidence relevant to its liability for
another potentially liable operator as the reasons why the district director benefits as well as the claimant’s
responsible operator liable for the believes that a conference will assist in eligibility for benefits.
payment of benefits. In such a case, the the voluntary resolution of any issue (c) Within 20 days after the
district director shall not permit the raised with respect to the claim. No termination of all conference
development or submission of any sanction may be imposed under proceedings, the district director shall
additional medical evidence until after paragraph (c) of this section unless the prepare and send to the parties a
he has made a final determination of the record contains a notification that meets proposed decision and order pursuant
identity of the responsible operator the requirements of this section. The to § 725.418 of this part.
liable for the payment of benefits. If the district director may in his or her
operator who is finally determined to be discretion, or on the motion of any § 725.418 Proposed decision and order.
the responsible operator has not had the party, cancel a conference or allow any (a) Within 20 days after the
opportunity to submit medical evidence or all of the parties to participate by termination of all informal conference
pursuant to § 725.410, the district telephone. proceedings, or, if no informal
director shall allow the designated (c) The unexcused failure of any party
conference is held, at the conclusion of
responsible operator and the claimant to appear at an informal conference
the period permitted by § 725.410(b) for
not less than 60 days within which to shall be grounds for the imposition of
the submission of evidence, the district
submit evidence relevant to the sanctions. If the claimant fails to appear,
director shall issue a proposed decision
claimant’s eligibility for benefits. The the district director may take such steps
and order. A proposed decision and
designated responsible operator may as are authorized by § 725.409(b)(2) to
order is a document, issued by the
elect to adopt any medical evidence deny the claim by reason of
abandonment. If the responsible district director after the evidentiary
previously submitted by another development of the claim is completed
operator as its own evidence, subject to operator fails to appear, it shall be
deemed to have waived its right to and all contested issues, if any, are
the limitations of § 725.414. The district joined, which purports to resolve a
director may also schedule a conference contest its potential liability for an
award of benefits and, in the discretion claim on the basis of the evidence
in accordance with § 725.416, issue a submitted to or obtained by the district
proposed decision and order in of the district director, its right to
contest any issue related to the director. A proposed decision and order
accordance with § 725.418, or take such shall be considered a final adjudication
other action as the district director claimant’s eligibility.
(d) Any representative of an operator, of a claim only as provided in § 725.419.
considers appropriate. A proposed decision and order may be
of an operator’s insurance carrier, or of
§ 725.416 Conferences. a claimant, authorized to represent such issued by the district director at any
(a) At the conclusion of the period party in accordance with paragraph (b), time during the adjudication of any
permitted by § 725.410(b) of this part for shall be deemed to have sufficient claim if:
the submission of evidence, the district authority to stipulate facts or issues or (1) Issuance is authorized or required
director may conduct an informal agree to a final disposition of the claim. by this part; or,
(2) The district director determines circumstances require, and serve the such operator, and, in addition, such
that its issuance will expedite the revised proposed decision and order on penalties and interest as are appropriate.
adjudication of the claim. all parties or take such other action as
(b) A proposed decision and order is appropriate. If a revised proposed § 725.421 Referral of a claim to the Office
of Administrative Law Judges.
shall contain findings of fact and decision and order is issued, each party
conclusions of law. It shall be served on to the claim shall have 30 days from the (a) In any claim for which a formal
all parties to the claim by certified mail. date of issuance of that revised hearing is requested or ordered, and
(c) The proposed decision and order proposed decision and order within with respect to which the district
shall contain a notice of the right of any which to request a hearing. director has completed evidentiary
interested party to request a formal (d) If no response to a proposed development and adjudication without
hearing before the Office of decision and order is sent to the district having resolved all contested issues, the
Administrative Law Judges. If the director within the period described in district director shall refer the claim to
proposed decision and order is a denial paragraph (a) of this section, or if no the Office of Administrative Law Judges
of benefits, and the claimant has response to a revised proposed decision for a hearing.
previously filed a request for a hearing, and order is sent to the district director (b) In any case referred to the Office
the proposed decision and order shall within the period described in of Administrative Law Judges under this
notify the claimant that the case will be paragraph (c) of this section, the section, the district director shall
referred for a hearing pursuant to the proposed decision and order shall transmit to that office the following
previous request unless the claimant become a final decision and order, documents, which shall be placed in the
notifies the district director that he no which is effective upon the expiration of record at the hearing subject to the
longer desires a hearing. If the proposed the applicable 30-day period. Once a objection of any party:
decision and order is an award of proposed decision and order or revised (1) Copies of the claim form or forms;
benefits, and the designated responsible proposed decision and order becomes (2) Any statement, document, or
operator has previously filed a request final and effective, all rights to further pleading submitted by a party to the
for a hearing, the proposed decision and proceedings with respect to the claim claim;
order shall notify the operator that the shall be considered waived, except as (3) A copy of the notification to an
case will be referred for a hearing provided in § 725.310. operator of its possible liability for the
pursuant to the previous request unless claim, and any schedule for the
§ 725.420 Initial determinations. submission of additional evidence
the operator notifies the district director
(a) Section 9501(d)(1)(A)(1) of the issued pursuant to § 725.410 designating
that it no longer desires a hearing.
(d) The proposed decision and order Internal Revenue Code (26 U.S.C.) a potentially liable operator as the
shall reflect the district director’s final provides that the Black Lung Disability responsible operator;
designation of the responsible operator Trust Fund shall begin the payment of (4) All medical evidence submitted to
liable for the payment of benefits. No benefits on behalf of an operator in any the district director under this part by
operator may be finally designated as case in which the operator liable for the claimant and the potentially liable
the responsible operator unless it has such payments has not commenced operator designated as the responsible
received notification of its potential payment of such benefits within 30 days operator in the proposed decision and
liability pursuant to § 725.407, and the after the date of an initial determination order issued pursuant to § 725.418, or
opportunity to submit additional of eligibility by the Secretary. For claims the fund, as appropriate, subject to the
evidence pursuant to § 725.410. The filed on or after January 1, 1982, the limitations of § 725.414 of this part; this
district director shall dismiss, as parties payment of such interim benefits from evidence shall include the results of any
to the claim, all other potentially liable the fund is limited to benefits accruing medical examination or test conducted
operators that received notification after the date of such initial pursuant to § 725.406, and all evidence
pursuant to § 725.407 and that were not determination. relevant to the liability of the
(b) Except as provided in § 725.415, responsible operator submitted to the
previously dismissed pursuant to
after the district director has determined district director under this part;
§ 725.410(a)(3).
that a claimant is eligible for benefits, (5) Any written stipulation of law or
§ 725.419 Response to proposed decision on the basis of all evidence submitted fact or stipulation of contested and
and order. by a claimant and operator, and has uncontested issues entered into by the
(a) Within 30 days after the date of determined that a hearing will be parties;
issuance of a proposed decision and necessary to resolve the claim, the (6) Any pertinent forms submitted to
order, any party may, in writing, request district director shall in writing so the district director;
a revision of the proposed decision and inform the parties and direct the (7) The statement by the district
order or a hearing. If a hearing is operator to begin the payment of director of contested and uncontested
requested, the district director shall benefits to the claimant in accordance issues in the claim; and
refer the claim to the Office of with § 725.522. The date on which this (8) The district director’s initial
Administrative Law Judges (see writing is sent to the parties shall be determination of eligibility or other
§ 725.421). considered the date of initial documents necessary to establish the
(b) Any response made by a party to determination of the claim. right of the fund to reimbursement, if
a proposed decision and order shall (c) If a notified operator refuses to appropriate. Copies of the transmittal
specify the findings and conclusions commence payment of a claim within notice shall also be sent to all parties to
with which the responding party 30 days from the date on which an the claim by regular mail.
disagrees, and shall be served on the initial determination is made under this (c) A party may at any time request
district director and all other parties to section, benefits shall be paid by the and obtain from the district director
the claim. fund to the claimant in accordance with copies of documents transmitted to the
(c) If a timely request for revision of § 725.522, and the operator shall be Office of Administrative Law Judges
a proposed decision and order is made, liable to the fund, if such operator is under paragraph (b) of this section. If
the district director may amend the determined liable for the claim, for all the party has previously been provided
proposed decision and order, as benefits paid by the fund on behalf of with such documents, additional copies
may be sent to the party upon the § 725.452 Type of hearing; parties. shown by a party. The administrative
payment of a copying fee to be (a) A hearing held under this part law judge may adjourn or postpone the
determined by the district director. shall be conducted by an administrative hearing for good cause shown, at any
law judge designated by the Chief time prior to the mailing to the parties
§ 725.422 Legal assistance. Administrative Law Judge. Except as of the decision in the case. Unless
The Secretary or his or her designee otherwise provided by this part, all otherwise agreed, at least 10 days notice
may, upon request, provide a claimant hearings shall be conducted in shall be given to the parties of any
with legal assistance in processing a accordance with the provisions of 5 change in the time or place of hearing.
claim under the Act. Such assistance U.S.C. 554 et seq. (e) The Chief Administrative Law
may be made available to a claimant in (b) All parties to a claim shall be Judge may for good cause shown
the discretion of the Solicitor of Labor permitted to participate fully at a transfer a case from one administrative
or his or her designee at any time prior hearing held in connection with such law judge to another.
to or during the time in which the claim claim.
(c) A full evidentiary hearing need not § 725.455 Hearing procedures; generally.
is being adjudicated and shall be (a) General. The purpose of any
furnished without charge to the be conducted if a party moves for
summary judgment and the hearing conducted under this subpart
claimant. Representation of a claimant shall be to resolve contested issues of
in adjudicatory proceedings shall not be administrative law judge determines
that there is no genuine issue as to any fact or law. Except as provided in
provided by the Department of Labor § 725.421(b)(8), any findings or
unless it is determined by the Solicitor material fact and that the moving party
is entitled to the relief requested as a determinations made with respect to a
of Labor that such representation is in claim by a district director shall not be
the best interests of the black lung matter of law. All parties shall be
entitled to respond to the motion for considered by the administrative law
benefits program. In no event shall judge.
representation be provided to a claimant summary judgment prior to decision
thereon. (b) Evidence. The administrative law
in a claim with respect to which the judge shall at the hearing inquire fully
(d) If the administrative law judge
claimant’s interests are adverse to those into all matters at issue, and shall not
believes that an oral hearing is not
of the Secretary of Labor or the fund. be bound by common law or statutory
necessary (for any reason other than on
motion for summary judgment), the rules of evidence, or by technical or
§ 725.423 Extensions of time.
judge shall notify the parties by written formal rules of procedure, except as
Except for the 30-day time limit set order and allow at least 30 days for the provided by 5 U.S.C. 554 and this
forth in § 725.419, any of the time parties to respond. The administrative subpart. The administrative law judge
periods set forth in this subpart may be law judge shall hold the oral hearing if shall receive into evidence the
extended, for good cause shown, by any party makes a timely request in testimony of the witnesses and parties,
filing a request for an extension with the response to the order. the evidence submitted to the Office of
district director prior to the expiration Administrative Law Judges by the
of the time period. § 725.453 Notice of hearing. district director under § 725.421, and
All parties shall be given at least 30 such additional evidence as may be
Subpart F—Hearings days written notice of the date and place submitted in accordance with the
of a hearing and the issues to be provisions of this subpart. The
§ 725.450 Right to a hearing.
resolved at the hearing. Such notice administrative law judge may entertain
Any party to a claim (see § 725.360) shall be sent to each party or the objections of any party to the
shall have a right to a hearing representative by certified mail. evidence submitted under this section.
concerning any contested issue of fact or (c) Procedure. The conduct of the
§ 725.454 Time and place of hearing; hearing and the order in which
law unresolved by the district director. transfer of cases.
There shall be no right to a hearing until allegations and evidence shall be
(a) The Chief Administrative Law presented shall be within the discretion
the processing and adjudication of the
Judge shall assign a definite time and of the administrative law judge and
claim by the district director has been
place for a formal hearing, and shall, shall afford the parties an opportunity
completed. There shall be no right to a
where possible, schedule the hearing to for a fair hearing.
hearing in a claim with respect to which
be held at a place within 75 miles of the (d) Oral argument and written
a determination of the claim made by
claimant’s residence unless an alternate allegations. The parties, upon request,
the district director has become final
location is requested by the claimant. may be allowed a reasonable time for
and effective in accordance with this (b) If the claimant’s residence is not
part. the presentation of oral argument at the
in any State, the Chief Administrative hearing. Briefs or other written
§ 725.451 Request for hearing. Law Judge may, in his or her discretion, statements or allegations as to facts or
schedule the hearing in the country of law may be filed by any party with the
After the completion of proceedings the claimant’s residence. permission of the administrative law
before the district director, or as is (c) The Chief Administrative Law judge. Copies of any brief or other
otherwise indicated in this part, any Judge or the administrative law judge written statement shall be filed with the
party may in writing request a hearing assigned the case may in his or her administrative law judge and served on
on any contested issue of fact or law discretion direct that a hearing with all parties by the submitting party.
(see § 725.419). A district director may respect to a claim shall begin at one
on his or her own initiative refer a case location and then later be reconvened at § 725.456 Introduction of documentary
for hearing. If a hearing is requested, or another date and place. evidence.
if a district director determines that a (d) The Chief Administrative Law (a) All documents transmitted to the
hearing is necessary to the resolution of Judge or administrative law judge Office of Administrative Law Judges
any issue, the claim shall be referred to assigned the case may change the time under § 725.421 shall be placed into
the Chief Administrative Law Judge for and place for a hearing, either on his or evidence by the administrative law
a hearing under § 725.421. her own motion or for good cause judge, subject to objection by any party.
(b)(1) Documentary evidence district director for further witness must have been identified as a
pertaining to the liability of a consideration. potential hearing witness while the
potentially liable operator and/or the (2) If the evidence is admitted, the claim was pending before the district
identification of a responsible operator administrative law judge shall afford the director.
which was not submitted to the district opposing party or parties the (2) In the case of a physician offering
director shall not be admitted into the opportunity to develop such additional testimony relevant to the physical
hearing record in the absence of documentary evidence as is necessary to condition of the miner, such physician
extraordinary circumstances. Medical protect the right of cross-examination. must have prepared a medical report.
evidence in excess of the limitations (d) All medical records and reports Alternatively, in the absence of a
contained in § 725.414 shall not be submitted by any party shall be showing of good cause under
admitted into the hearing record in the considered by the administrative law § 725.456(b)(1) of this part, a physician
absence of good cause. judge in accordance with the quality may offer testimony relevant to the
(2) Subject to the limitations in standards contained in part 718 of this physical condition of the miner only to
paragraph (b)(1) of this section, any subchapter. the extent that the party offering the
other documentary material, including (e) If the administrative law judge physician’s testimony has submitted
medical reports, which was not concludes that the complete pulmonary fewer medical reports than permitted by
submitted to the district director, may evaluation provided pursuant to § 725.414. Such physician’s opinion
be received in evidence subject to the § 725.406, or any part thereof, fails to shall be considered a medical report
objection of any party, if such evidence comply with the applicable quality subject to the limitations of § 725.414.
is sent to all other parties at least 20 standards, or fails to address the (d) A physician whose testimony is
days before a hearing is held in relevant conditions of entitlement (see permitted under this section may testify
connection with the claim. § 725.202(d)(2)(i) through (iv)) in a as to any other medical evidence of
(3) Documentary evidence, which is manner which permits resolution of the record, but shall not be permitted to
not exchanged with the parties in claim, the administrative law judge testify as to any medical evidence
accordance with this paragraph, may be shall, in his or her discretion, remand relevant to the miner’s condition that is
admitted at the hearing with the written the claim to the district director with not admissible.
consent of the parties or on the record instructions to develop only such
additional evidence as is required, or § 725.458 Depositions; interrogatories.
at the hearing, or upon a showing of
allow the parties a reasonable time to The testimony of any witness or party
good cause why such evidence was not
obtain and submit such evidence, before may be taken by deposition or
exchanged in accordance with this
the termination of the hearing. interrogatory according to the rules of
paragraph. If documentary evidence is
practice of the Federal district court for
not exchanged in accordance with § 725.457 Witnesses. the judicial district in which the case is
paragraph (b)(2) of this section and the (a) Witnesses at the hearing shall pending (or of the U.S. District Court for
parties do not waive the 20-day testify under oath or affirmation. The the District of Columbia if the case is
requirement or good cause is not shown, administrative law judge and the parties pending in the District or outside the
the administrative law judge shall either may question witnesses with respect to United States), except that at least 30
exclude the late evidence from the any matters relevant and material to any days prior notice of any deposition shall
record or remand the claim to the contested issue. Any party who intends be given to all parties unless such notice
district director for consideration of to present the testimony of an expert is waived. No post-hearing deposition or
such evidence. witness at a hearing, including any interrogatory shall be permitted unless
(4) A medical report which is not physician, regardless of whether the authorized by the administrative law
made available to the parties in physician has previously prepared a judge upon the motion of a party to the
accordance with paragraph (b)(2) of this medical report, shall so notify all other claim. The testimony of any physician
section shall not be admitted into parties to the claim at least 10 days which is taken by deposition shall be
evidence in any case unless the hearing before the hearing. The failure to give subject to the limitations on the scope
record is kept open for at least 30 days notice of the appearance of an expert of the testimony contained in
after the hearing to permit the parties to witness in accordance with this § 725.457(d).
take such action as each considers paragraph, unless notice is waived by
appropriate in response to such all parties, shall preclude the § 725.459 Witness fees.
evidence. If, in the opinion of the presentation of testimony by such (a) A witness testifying at a hearing
administrative law judge, evidence is expert witness. before an administrative law judge, or
withheld from the parties for the (b) No person shall be required to whose deposition is taken, shall receive
purpose of delaying the adjudication of appear as a witness in any proceeding the same fees and mileage as witnesses
the claim, the administrative law judge before an administrative law judge at a in courts of the United States. If the
may exclude such evidence from the place more than 100 miles from his or witness is an expert, he or she shall be
hearing record and close the record at her place of residence, unless the lawful entitled to an expert witness fee. Except
the conclusion of the hearing. mileage and witness fee for 1 day’s as provided in paragraphs (b) and (c) of
(c) Subject to paragraph (b) of this attendance is paid in advance of the this section, such fees shall be paid by
section, documentary evidence which hearing date. the proponent of the witness.
the district director excludes from the (c) No person shall be permitted to (b) If the witness’ proponent does not
record, and the objections to such testify as a witness at the hearing, or intend to call the witness to appear at
evidence, may be submitted by the pursuant to deposition or interrogatory a hearing or deposition, any other party
parties to the administrative law judge, under § 725.458, unless that person may subpoena the witness for cross-
who shall independently determine meets the requirements of § 725.414(c). examination. The administrative law
whether the evidence shall be admitted. (1) In the case of a witness offering judge shall authorize the least intrusive
(1) If the evidence is admitted, the testimony relevant to the liability of the and expensive means of cross-
administrative law judge may, in his or responsible operator, in the absence of examination as he deems appropriate
her discretion, remand the claim to the extraordinary circumstances, the and necessary to the full and true
disclosure of facts. If such witness is § 725.461 Waiver of right to appear and the district director. Such new issue
required to attend the hearing, give a present evidence. may be raised upon application of any
deposition or respond to interrogatories (a) If all parties waive their right to party, or upon an administrative law
for cross-examination purposes, the appear before the administrative law judge’s own motion, with notice to all
proponent of the witness shall pay the judge, it shall not be necessary for the parties, at any time after a claim has
witness’ fee. If the claimant is the administrative law judge to give notice been transmitted by the district director
proponent of the witness whose cross- of, or conduct, an oral hearing. A waiver to the Office of Administrative Law
examination is sought, and of the right to appear shall be made in Judges and prior to decision by an
demonstrates, within time limits writing and filed with the Chief administrative law judge. If a new issue
established by the administrative law Administrative Law Judge or the is raised, the administrative law judge
judge, that he would be deprived of administrative law judge assigned to may, in his or her discretion, either
ordinary and necessary living expenses hear the case. Such waiver may be remand the case to the district director
if required to pay the witness fee and withdrawn by a party for good cause with instructions for further
mileage necessary to produce that shown at any time prior to the mailing proceedings, hear and resolve the new
of the decision in the claim. Even issue, or refuse to consider such new
witness for cross-examination, the
though all of the parties have filed a issue.
administrative law judge shall apportion
waiver of the right to appear, the (c) If a new issue is to be considered
the costs of such cross-examination
administrative law judge may, by the administrative law judge, a party
among the parties to the case. The may, upon request, be granted an
nevertheless, after giving notice of the
administrative law judge shall not time and place, conduct a hearing if he appropriate continuance.
apportion any costs against the fund in or she believes that the personal
a case in which the district director has appearance and testimony of the party § 725.464 Record of hearing.
designated a responsible operator, or parties would assist in ascertaining All hearings shall be open to the
except that the fund shall remain liable the facts in issue in the claim. Where a public and shall be mechanically or
for any costs associated with the cross- waiver has been filed by all parties, and stenographically reported. All evidence
examination of the physician who they do not appear before the upon which the administrative law
performed the complete pulmonary administrative law judge personally or judge relies for decision shall be
evaluation pursuant to § 725.406. by representative, the administrative contained in the transcript of testimony,
(c) If a claimant is determined entitled law judge shall make a record of the either directly or by appropriate
to benefits, there may be assessed as relevant documentary evidence reference. All medical reports, exhibits,
costs against a responsible operator, if submitted in accordance with this part and any other pertinent document or
any, or the fund, fees and mileage for and any further written stipulations of record, either in whole or in material
necessary witnesses attending the the parties. Such documents and part, introduced as evidence, shall be
hearing at the request of the claimant. stipulations shall be considered the marked for identification and
Both the necessity for the witness and evidence of record in the case and the incorporated into the record.
the reasonableness of the fees of any decision shall be based upon such § 725.465 Dismissals for cause.
expert witness shall be approved by the evidence.
(a) The administrative law judge may,
administrative law judge. The amounts (b) Except as provided in § 725.456(a),
at the request of any party, or on his or
awarded against a responsible operator the unexcused failure of any party to
her own motion, dismiss a claim:
or the fund as attorney’s fees, or costs, attend a hearing shall constitute a
(1) Upon the failure of the claimant or
fees and mileage for witnesses, shall not waiver of such party’s right to present
his or her representative to attend a
in any respect affect or diminish evidence at the hearing, and may result
hearing without good cause;
benefits payable under the Act. in a dismissal of the claim (see (2) Upon the failure of the claimant to
§ 725.465). comply with a lawful order of the
(d) A claimant shall be considered to
be deprived of funds required for § 725.462 Withdrawal of controversion of administrative law judge; or
ordinary and necessary living expenses issues set for formal hearing; effect. (3) Where there has been a prior final
for purposes of paragraph (b) of this A party may, on the record, withdraw adjudication of the claim or defense to
section where payment of the projected his or her controversion of any or all the claim under the provisions of this
fee and mileage would meet the issues set for hearing. If a party subchapter and no new evidence is
standards set forth at 20 CFR 404.508. withdraws his or her controversion of submitted (except as provided in part
all issues, the administrative law judge 727 of this subchapter; see § 725.4(d)).
§ 725.460 Consolidated hearings. shall remand the case to the district (b) A party who is not a proper party
director for the issuance of an to the claim (see § 725.360) shall be
When two or more hearings are to be dismissed by the administrative law
held, and the same or substantially appropriate order.
judge. The administrative law judge
similar evidence is relevant and § 725.463 Issues to be resolved at hearing; shall not dismiss the operator
material to the matters at issue at each new issues. designated as the responsible operator
such hearing, the Chief Administrative (a) Except as otherwise provided in by the district director, except upon the
Law Judge may, upon motion by any this section, the hearing shall be motion or written agreement of the
party or on his or her own motion, order confined to those contested issues Director.
that a consolidated hearing be which have been identified by the (c) In any case where a dismissal of
conducted. Where consolidated district director (see § 725.421) or any a claim, defense, or party is sought, the
hearings are held, a single record of the other issue raised in writing before the administrative law judge shall issue an
proceedings shall be made and the district director. order to show cause why the dismissal
evidence introduced in one claim may (b) An administrative law judge may should not be granted and afford all
be considered as introduced in the consider a new issue only if such issue parties a reasonable time to respond to
others, and a separate or joint decision was not reasonably ascertainable by the such order. After the time for response
shall be made, as appropriate. parties at the time the claim was before has expired, the administrative law
judge shall take such action as is containing the action of the § 725.481 Right to appeal to the Benefits
appropriate to rule on the dismissal, administrative law judge, his or her Review Board.
which may include an order dismissing signature and the date of issuance. A Any party dissatisfied with a decision
the claim, defense or party. decision and order shall be based upon and order issued by an administrative
(d) No claim shall be dismissed in a the record made before the law judge may, before the decision and
case with respect to which payments administrative law judge. order becomes final (see § 725.479),
prior to final adjudication have been appeal the decision and order to the
made to the claimant in accordance § 725.478 Filing and service of decision Benefits Review Board. A notice of
with § 725.522, except upon the motion and order. appeal shall be filed with the Board.
or written agreement of the Director. On the date of issuance of a decision Proceedings before the Board shall be
and order under § 725.477, the conducted in accordance with part 802
§ 725.466 Order of dismissal.
administrative law judge shall serve the of this title.
(a) An order dismissing a claim shall
decision and order on all parties to the § 725.482 Judicial review.
be served on the parties in accordance
claim by certified mail. On the same
with § 725.478. The dismissal of a claim (a) Any person adversely affected or
date, the original record of the claim
shall have the same effect as a decision aggrieved by a final order of the Benefits
shall be sent to the DCMWC in
and order disposing of the claim on its Review Board may obtain a review of
merits, except as provided in paragraph Washington, D.C. Upon receipt by the that order in the U.S. court of appeals
(b) of this section. Such order shall DCMWC, the decision and order shall for the circuit in which the injury
advise the parties of their right to be considered to be filed in the office of occurred by filing in such court within
request review by the Benefits Review the district director, and shall become 60 days following the issuance of such
Board. effective on that date. Board order a written petition praying
(b) Where the Chief Administrative § 725.479 Finality of decisions and orders. that the order be modified or set aside.
Law Judge or the presiding The payment of the amounts required
administrative law judge issues a (a) A decision and order shall become by an award shall not be stayed pending
decision and order dismissing the claim effective when filed in the office of the final decision in any such proceeding
after a show cause proceeding, the district director (see § 725.478), and unless ordered by the court. No stay
district director shall terminate any unless proceedings for suspension or shall be issued unless the court finds
payments being made to the claimant setting aside of such order are instituted that irreparable injury would otherwise
under § 725.522, and the order of within 30 days of such filing, the order ensue to an operator or carrier.
dismissal shall, if appropriate, order the shall become final at the expiration of (b) The Director, Office of Workers’
claimant to reimburse the fund for all the 30th day after such filing (see Compensation Program, as designee of
benefits paid to the claimant. § 725.481). the Secretary of Labor responsible for
(b) Any party may, within 30 days the administration and enforcement of
§ 725.475 Termination of hearings. the Act, shall be considered the proper
after the filing of a decision and order
Hearings are officially terminated party to appear and present argument on
under § 725.478, request a
when all the evidence has been behalf of the Secretary of Labor in all
reconsideration of such decision and
received, witnesses heard, pleadings review proceedings conducted pursuant
order by the administrative law judge.
and briefs submitted to the to this part and the Act, either as
The procedures to be followed in the
administrative law judge, and the petitioner or respondent.
reconsideration of a decision and order
transcript of the proceedings has been
shall be determined by the § 725.483 Costs in proceedings brought
printed and delivered to the
administrative law judge. without reasonable grounds.
administrative law judge.
(c) The time for appeal to the Benefits If a United States court having
§ 725.476 Issuance of decision and order. Review Board shall be suspended jurisdiction of proceedings regarding
Within 20 days after the official during the consideration of a request for any claim or final decision and order,
termination of the hearing (see reconsideration. After the determines that the proceedings have
§ 725.475), the administrative law judge administrative law judge has issued and been instituted or continued before such
shall issue a decision and order with filed a denial of the request for court without reasonable ground, the
respect to the claim making an award to reconsideration, or a revised decision costs of such proceedings shall be
the claimant, rejecting the claim, or and order in accordance with this part, assessed against the party who has so
taking such other action as is any dissatisfied party shall have 30 days instituted or continued such
appropriate. within which to institute proceedings to proceedings.
§ 725.477 Form and contents of decision
set aside the decision and order on
reconsideration. Subpart G—Responsible Coal Mine
and order. Operators
(a) Orders adjudicating claims for (d) Regardless of any defect in service,
benefits shall be designated by the term actual receipt of the decision is § 725.490 Statutory provisions and scope.
‘‘decision and order’’ or ‘‘supplemental sufficient to commence the 30-day (a) One of the major purposes of the
decision and order’’ as appropriate, period for requesting reconsideration or black lung benefits amendments of 1977
followed by a descriptive phrase appealing the decision. was to provide a more effective means
designating the particular type of order, of transferring the responsibility for the
§ 725.480 Modification of decisions and
such as ‘‘award of benefits,’’ ‘‘rejection payment of benefits from the Federal
orders.
of claim,’’ ‘‘suspension of benefits,’’ government to the coal industry with
‘‘modification of award.’’ A party who is dissatisfied with a respect to claims filed under this part.
(b) A decision and order shall contain decision and order which has become In furtherance of this goal, a Black Lung
a statement of the basis of the order, the final in accordance with § 725.479 may Disability Trust Fund financed by the
names of the parties, findings of fact, request a modification of the decision coal industry was established by the
conclusions of law, and an award, and order if the conditions set forth in Black Lung Benefits Revenue Act of
rejection or other appropriate paragraph § 725.310 are met. 1977. The primary purpose of the Fund
is to pay benefits with respect to all for purposes of this part. Following the (1) If an operator ceases to exist by
claims in which the last coal mine issuance of an order awarding benefits reason of a reorganization which
employment of the miner on whose against a corporation that has not involves a change in identity, form, or
account the claim was filed occurred secured its liability for benefits in place of business or organization,
before January 1, 1970. With respect to accordance with section 423 of the Act however effected;
most claims in which the miner’s last and § 726.4, such order may be enforced (2) If an operator ceases to exist by
coal mine employment occurred after against the president, secretary, or reason of a liquidation into a parent or
January 1, 1970, individual coal mine treasurer of the corporation in successor corporation; or
operators will be liable for the payment accordance with subpart I of this part. (3) If an operator ceases to exist by
of benefits. The 1981 amendments to the (c) The term ‘‘independent reason of a sale of substantially all its
Act relieved individual coal mine contractor’’ shall include any person assets, or as a result of merger,
operators from the liability for payment who contracts to perform services. Such consolidation, or division.
of certain special claims involving coal contractor’s status as an operator shall (c) In any case in which a transaction
mine employment on or after January 1, not be contingent upon the amount or specified in paragraph (b), or
1970, where the claim was previously percentage of its work or business substantially similar to a transaction
denied and subsequently approved related to activities in or around a mine, specified in paragraph (b), took place,
under section 435 of the Act. See nor upon the number or percentage of the resulting entity shall be considered
§ 725.496 for a detailed description of its employees engaged in such activities. a ‘‘successor operator’’ with respect to
these special claims. Where no such (d) For the purposes of determining any miners previously employed by
operator exists or the operator whether a person is or was an operator such prior operator.
that may be found liable for the (d) This section shall not be construed
determined to be liable is in default in
payment of benefits under this part, to relieve a prior operator of any
any case, the fund shall pay the benefits
there shall be a rebuttable presumption liability if such prior operator meets the
due and seek reimbursement as is
that during the course of an individual’s conditions set forth in § 725.494. If the
appropriate. See also § 725.420 for the
employment with such employer, such prior operator does not meet the
fund’s role in the payment of interim
individual was regularly and conditions set forth in § 725.494, the
benefits in certain contested cases. In
continuously exposed to coal mine dust following provisions shall apply:
addition, the Black Lung Benefits (1) In any case in which a prior
Reform Act of 1977 amended certain during the course of employment. The
presumption may be rebutted by a operator transferred a mine or mines, or
provisions affecting the scope of substantially all of the assets thereof, to
coverage under the Act and describing showing that the employee was not
exposed to coal mine dust for significant a successor operator, or sold its coal
the effects of particular corporate mining business or substantially all of
transactions on the liability of operators. periods during such employment.
(e) The operation, control, or the assets thereof, to a successor
(b) The provisions of this subpart
supervision referred to in paragraph operator, and then ceased to exist
define the term ‘‘operator’’ and
(a)(1) of this section may be exercised within the terms of paragraph (b), the
prescribe the manner in which the
directly or indirectly. Thus, for successor operator as identified in
identity of an operator which may be
example, where a coal mine is leased, paragraph (a) shall be primarily liable
liable for the payment of benefits—
and the lease empowers the lessor to for the payment of benefits to any
referred to herein as a ‘‘responsible
make decisions with respect to the miners previously employed by such
operator’’—will be determined.
terms and conditions under which coal prior operator.
§ 725.491 Operator defined. is to be extracted or prepared, such as, (2) In any case in which a prior
(a) For purposes of this part, the term but not limited to, the manner of operator transferred mines, or
‘‘operator’’ shall include: extraction or preparation or the amount substantially all of the assets thereof, to
(1) Any owner, lessee, or other person of coal to be produced, the lessor may more than one successor operator, the
who operates, controls, or supervises a be considered an operator. Similarly, successor operator that most recently
coal mine, or any independent any parent entity or other controlling acquired a mine or mines or assets from
contractor performing services or business entity may be considered an the prior operator shall be primarily
construction at such mine; or operator for purposes of this part, liable for the payment of benefits to any
(2) Any other person who: regardless of the nature of its business miners previously employed by such
(i) Employs an individual in the activities. prior operator.
transportation of coal or in coal mine (f) Neither the United States, nor any (3) In any case in which a mine or
construction in or around a coal mine, State, nor any instrumentality or agency mines, or substantially all the assets
to the extent such individual was of the United States or any State, shall thereof, have been transferred more than
exposed to coal mine dust as a result of be considered an operator. once, the successor operator that most
such employment (see § 725.202); recently acquired such mine or mines or
(ii) In accordance with the provisions § 725.492 Successor operator defined. assets shall be primarily liable for the
of § 725.492, may be considered a (a) Any person who, on or after payment of benefits to any miners
successor operator; or January 1, 1970, acquired a mine or previously employed by the original
(iii) Paid wages or a salary, or mines, or substantially all of the assets prior operator. If the most recent
provided other benefits, to an individual thereof, from a prior operator, or successor operator does not meet the
in exchange for work as a miner (see acquired the coal mining business of criteria for a potentially liable operator
§ 725.202). such prior operator, or substantially all set forth in § 725.494, the next most
(b) The terms ‘‘owner,’’ ‘‘lessee,’’ and of the assets thereof, shall be considered recent successor operator shall be liable.
‘‘person’’ shall include any individual, a ‘‘successor operator’’ with respect to (e) An ‘‘acquisition,’’ for purposes of
partnership, association, corporation, any miners previously employed by this section, shall include any
firm, subsidiary of a corporation, or such prior operator. transaction by which title to the mine or
other organization, as appropriate, (b) The following transactions shall mines, or substantially all of the assets
except that an officer of a corporation also be deemed to create successor thereof, or the right to extract or prepare
shall not be considered an ‘‘operator’’ operator liability: coal at such mine or mines, becomes
vested in a person other than the prior miner’s employment with the prior other operator, person, or business
operator. operator. In a case in which the miner entity which substantially controls,
was independently employed by the supervises, or is financially responsible
725.493 Employment relationship defined. successor operator after the transaction for the activities of the self-employed
(a)(1) In determining the identity of a giving rise to successor operator operator.
responsible operator under this part, the liability, the successor operator shall be
terms ‘‘employ’’ and ‘‘employment’’ primarily liable for the payment of any § 725.494 Potentially liable operators.
shall be construed as broadly as benefits. An operator may be considered a
possible, and shall include any (2) In any case in which the operator ‘‘potentially liable operator’’ with
relationship under which an operator which directed, controlled or respect to a claim for benefits under this
retains the right to direct, control, or supervised the miner is no longer in part if each of the following conditions
supervise the work performed by a business and such operator was a is met:
miner, or any other relationship under subsidiary of a parent company, a (a) The miner’s disability or death
which an operator derives a benefit from member of a joint venture, a partner in arose at least in part out of employment
the work performed by a miner. Any a partnership, or was substantially in or around a mine or other facility
individuals who participate with one or owned or controlled by another during a period when the mine or
more persons in the mining of coal, business entity, such parent entity or facility was operated by such operator,
such as owners, proprietors, partners, other member of a joint venture or or by a person with respect to which the
and joint venturers, whether they are partner or controlling business entity operator may be considered a successor
compensated by wages, salaries, piece may be considered the employer of any operator. For purposes of this section,
rates, shares, profits, or by any other employees of such operator. there shall be a rebuttable presumption
means, shall be deemed employees. It is (3) In any claim in which the operator that the miner’s disability or death arose
the specific intention of this paragraph which directed, controlled or in whole or in part out of his or her
to disregard any financial arrangement supervised the miner is a lessee, the employment with such operator. Unless
or business entity devised by the actual lessee shall be considered primarily this presumption is rebutted, the
owners or operators of a coal mine or liable for the claim. The liability of the responsible operator shall be liable to
coal mine-related enterprise to avoid the lessor may be established only after it pay benefits to the claimant on account
payment of benefits to miners who, has been determined that the lessee is of the disability or death of the miner in
based upon the economic reality of their unable to provide for the payment of accordance with this part. A miner’s
relationship to this enterprise, are, in benefits to a successful claimant. In any pneumoconiosis, or disability or death
fact, employees of the enterprise. case involving the liability of a lessor for therefrom, shall be considered to have
(2) The payment of wages or salary a claim arising out of employment with arisen in whole or in part out of work
shall be prima facie evidence of the a lessee, any determination of lessor in or around a mine if such work
right to direct, control, or supervise an liability shall be made on the basis of caused, contributed to or aggravated the
individual’s work. The Department the facts present in the case in progression or advancement of a miner’s
intends that where the operator who accordance with the following loss of ability to perform his or her
paid a miner’s wages or salary meets the considerations: regular coal mine employment or
criteria for a potentially liable operator (i) Where a coal mine is leased, and comparable employment.
set forth in § 725.494, that operator shall the lease empowers the lessor to make (b) The operator, or any person with
be primarily liable for the payment of decisions with respect to the terms and respect to which the operator may be
any benefits due the miner as a result of conditions under which coal is to be considered a successor operator, was an
such employment. The absence of such extracted or prepared, such as, but not operator for any period after June 30,
payment, however, will not negate the limited to, the manner of extraction or 1973.
existence of an employment preparation or the amount of coal to be (c) The miner was employed by the
relationship. Thus, the Department also produced, the lessor shall be considered operator, or any person with respect to
intends that where the person who paid the employer of any employees of the which the operator may be considered
a miner’s wages may not be considered lessee. a successor operator, for a cumulative
a potentially liable operator, any other (ii) Where a coal mine is leased to a period of not less than one year
operator who retained the right to self-employed operator, the lessor shall (§ 725.101(a)(32)).
direct, control or supervise the work be considered the employer of such self- (d) The miner’s employment with the
performed by the miner, or who employed operator and its employees if operator, or any person with respect to
benefitted from such work, may be the lease or agreement is executed or which the operator may be considered
considered a potentially liable operator. renewed after August 18, 1978 and such a successor operator, included at least
(b) This paragraph contains examples lease or agreement does not require the one working day (§ 725.101(a)(32)) after
of relationships that shall be considered lessee to guarantee the payment of December 31, 1969.
employment relationships for purposes benefits which may be required under (e) The operator is capable of
of this part. The list is not intended to this part and part 726 of this subchapter. assuming its liability for the payment of
be exclusive. (iii) Where a lessor previously continuing benefits under this part. An
(1) In any case in which an operator operated a coal mine, it may be operator will be deemed capable of
may be considered a successor operator, considered an operator with respect to assuming its liability for a claim if one
as determined in accordance with employees of any lessee of such mine, of the following three conditions is met:
§ 725.492, any employment with a prior particularly where the leasing (1) The operator obtained a policy or
operator shall also be deemed to be arrangement was executed or renewed contract of insurance under section 423
employment with the successor after August 18, 1978 and does not of the Act and part 726 of this
operator. In a case in which the miner require the lessee to secure benefits subchapter that covers the claim, except
was not independently employed by the provided by the Act. that such policy shall not be considered
successor operator, the prior operator (4) A self-employed operator, sufficient to establish the operator’s
shall remain primarily liable for the depending upon the facts of the case, capability of assuming liability if the
payment of any benefits based on the may be considered an employee of any insurance company has been declared
insolvent and its obligations for the employed the miner only before he was designation. If the reasons include the
claim are not otherwise guaranteed; employed by such self-insured operator. most recent employer’s failure to meet
(2) The operator qualified as a self- If no operator that employed the miner the conditions of § 725.494(e), the
insurer under section 423 of the Act and after his employment with the self- record shall also contain a statement
part 726 of this subchapter during the insured operator meets the conditions of that the Office has searched the files it
period in which the miner was last § 725.494, the claim of the miner or his maintains pursuant to part 726, and that
employed by the operator, provided that survivor shall be the responsibility of the Office has no record of insurance
the operator still qualifies as a self- the Black Lung Disability Trust Fund. coverage for that employer, or of
insurer or the security given by the (b) Except as provided in this section authorization to self-insure, that meets
operator pursuant to § 726.104(b) is and § 725.408(a)(3), with respect to the the conditions of § 725.494(e)(1) or
sufficient to secure the payment of adjudication of the identity of a (e)(2). Such a statement shall be prima
benefits in the event the claim is responsible operator, the Director shall facie evidence that the most recent
awarded; or bear the burden of proving that the employer is not financially capable of
(3) The operator possesses sufficient responsible operator initially found assuming its liability for a claim. In the
assets to secure the payment of benefits liable for the payment of benefits absence of such a statement, it shall be
in the event the claim is awarded in pursuant to § 725.410 (the ‘‘designated presumed that the most recent employer
accordance with § 725.606. responsible operator’’) is a potentially is financially capable of assuming its
liable operator. It shall be presumed, in liability for a claim.
§ 725.495 Criteria for determining a the absence of evidence to the contrary,
responsible operator. that the designated responsible operator § 725.496 Special claims transferred to the
(a)(1) The operator responsible for the is capable of assuming liability for the fund.
payment of benefits in a claim payment of benefits in accordance with (a) The 1981 amendments to the Act
adjudicated under this part (the § 725.494(e). amended section 422 of the Act and
‘‘responsible operator’’) shall be the (c) The designated responsible transferred liability for payment of
potentially liable operator, as operator shall bear the burden of certain special claims from operators
determined in accordance with proving either: and carriers to the fund. These
§ 725.494, that most recently employed (1) That it does not possess sufficient provisions apply to claims which were
the miner. assets to secure the payment of benefits denied before March 1, 1978, and which
(2) If more than one potentially liable in accordance with § 725.606; or have been or will be approved in
operator may be deemed to have (2) That it is not the potentially liable accordance with section 435 of the Act.
employed the miner most recently, then operator that most recently employed (b) Section 402(i) of the Act defines
the liability for any benefits payable as the miner. Such proof must include three classes of denied claims subject to
a result of such employment shall be evidence that the miner was employed the transfer provisions:
assigned as follows: as a miner after he or she stopped (1) Claims filed with and denied by
(i) First, to the potentially liable working for the designated responsible the Social Security Administration
operator that directed, controlled, or operator and that the person by whom before March 1, 1978;
supervised the miner; he or she was employed is a potentially (2) Claims filed with the Department
(ii) Second, to any potentially liable liable operator within the meaning of of Labor in which the claimant was
operator that may be considered a § 725.494. In order to establish that a notified by the Department of an
successor operator with respect to more recent employer is a potentially administrative or informal denial before
miners employed by the operator liable operator, the designated March 1, 1977, and in which the
identified in paragraph (a)(2)(i) of this responsible operator must demonstrate claimant did not within one year of
section; and that the more recent employer possesses such notification either:
(iii) Third, to any other potentially sufficient assets to secure the payment (i) Request a hearing; or
liable operator which may be deemed to of benefits in accordance with (ii) Present additional evidence; or
have been the miner’s most recent § 725.606. The designated responsible (iii) Indicate an intention to present
employer pursuant to § 725.493. operator may satisfy its burden by additional evidence; or
(3) If the operator that most recently presenting evidence that the owner, if (iv) Request a modification or
employed the miner may not be the more recent employer is a sole reconsideration of the denial on the
considered a potentially liable operator, proprietorship; the partners, if the more ground of a change in conditions or
as determined in accordance with recent employer is a partnership; or the because of a mistake in a determination
§ 725.494, the responsible operator shall president, secretary, and treasurer, if the of fact;
be the potentially liable operator that more recent employer is a corporation (3) Claims filed with the Department
next most recently employed the miner. that failed to secure the payment of of Labor and denied under the law in
Any potentially liable operator that benefits pursuant to part 726 of this effect prior to the enactment of the
employed the miner for at least one day subchapter, possess assets sufficient to Black Lung Benefits Reform Act of 1977,
after December 31, 1969 may be deemed secure the payment of benefits, that is, before March 1, 1978, following
the responsible operator if no more provided such assets may be reached in a formal hearing before an
recent employer may be considered a a proceeding brought under subpart I of administrative law judge or
potentially liable operator. this part. administrative review before the
(4) If the miner’s most recent (d) In any case referred to the Office Benefits Review Board or review before
employment by an operator ended while of Administrative Law Judges pursuant a United States Court of Appeals.
the operator was authorized to self- to § 725.421 in which the operator (c) Where more than one claim was
insure its liability under part 726 of this finally designated as responsible filed with the Social Security
title, and that operator no longer pursuant to § 725.418(d) is not the Administration and/or the Department
possesses sufficient assets to secure the operator that most recently employed of Labor prior to March 1, 1978, by or
payment of benefits, the provisions of the miner, the record shall contain a on behalf of a miner or a surviving
paragraph (a)(3) shall be inapplicable statement from the district director dependent of a miner, unless such
with respect to any operator that explaining the reasons for such claims were required to be merged by
the agency’s regulations, the procedural with any additional documentation Subpart H—Payment of Benefits
history of each such claim must be necessary for an informed consideration General Provisions
considered separately to determine of the transferability of the claim. Where
whether the claim is subject to the the issue of the transferability of the § 725.501 Payment provisions generally.
transfer of liability provisions. claim can not be resolved by agreement The provisions of this subpart govern
(d) For a claim filed with and denied of the parties and the evidence of record the payment of benefits to claimants
by the Social Security Administration is not sufficient for a resolution of the whose claims are approved for payment
prior to March 1, 1978, to come within issue, the hearing record may be under section 415 and part C of title IV
the transfer provisions, such claim must reopened or the case remanded for the of the Act or approved after review
have been or must be approved under development of the additional evidence under section 435 of the Act and part
the provisions of section 435 of the Act. concerning the procedural history of the 727 of this subchapter (see § 725.4(d)).
No claim filed with and denied by the claim necessary to such resolution.
§ 725.502 When benefit payments are due;
Social Security Administration is Such determinations shall be made on manner of payment.
subject to the transfer of liability an expedited basis.
provisions unless a request was made by (c) Dismissal of operators. If it is (a)(1) Except with respect to benefits
or on behalf of the claimant for review determined that a coal mine operator or paid by the fund pursuant to an initial
of such denied claim under section 435. insurance carrier which previously determination issued in accordance
Such review must have been requested participated in the consideration or with § 725.418 (see § 725.522), benefits
by the filing of a valid election card or adjudication of any claim, may no under the Act shall be paid when they
other equivalent document with the longer be found liable for the payment become due. Benefits shall be
Social Security Administration in of benefits to the claimant by reason of considered due after the issuance of an
accordance with section 435(a) and its section 205 of the Black Lung Benefits effective order requiring the payment of
implementing regulations at 20 CFR Amendments of 1981, such operator or benefits by a district director,
410.700 through 410.707. carrier shall be promptly dismissed as a administrative law judge, Benefits
(e) Where a claim filed with the party to the claim. The dismissal of an Review Board, or court, notwithstanding
Department of Labor prior to March 1, operator or carrier shall be concluded at the pendency of a motion for
1977, was subjected to repeated the earliest possible time and in no reconsideration before an administrative
administrative or informal denials, the event shall an operator or carrier law judge or an appeal to the Board or
last such denial issued during the participate as a necessary party in any court, except that benefits shall not be
pendency of the claim determines claim for which only the fund may be considered due where the payment of
whether the claim is subject to the liable. such benefits has been stayed by the
transfer of liability provisions. (d) Procedure following dismissal of Benefits Review Board or appropriate
(f) Where a miner’s claim comes an operator. After it has been court. An effective order shall remain in
within the transfer of liability determined that an operator or carrier effect unless it is vacated by an
provisions of the 1981 amendments the must be dismissed as a party in any administrative law judge on
fund is also liable for the payment of claim in accordance with this section, reconsideration, or, upon review under
any benefits to which the miner’s the Director shall take such action as is section 21 of the LHWCA, by the
dependent survivors are entitled after authorized by the Act to bring about the Benefits Review Board or an appropriate
the miner’s death. However, if the proper and expeditious resolution of the court, or is superseded by an effective
survivor’s entitlement was established claim in light of all relevant medical order issued pursuant to § 725.310.
on a separate claim not subject to the and other evidence. Action to be taken (2) A proposed order issued by a
transfer of liability provisions prior to in this regard by the Director may district director pursuant to § 725.418
approval of the miner’s claim under include, but is not limited to, the becomes effective at the expiration of
section 435, the party responsible for assignment of the claim to the Black the thirtieth day thereafter if no party
the payment of such survivors’ benefits Lung Disability Trust Fund for the timely requests revision of the proposed
shall not be relieved of that payment of benefits, the reimbursement decision and order or a hearing (see
responsibility because the miner’s claim of benefits previously paid by an § 725.419). An order issued by an
was ultimately approved and found operator or carrier if appropriate, the administrative law judge becomes
subject to the transfer of liability defense of the claim on behalf of the effective when it is filed in the office of
provisions. fund, or proceedings authorized by the district director (see § 725.479). An
§ 725.310. order issued by the Benefits Review
§ 725.497 Procedures in special claims (e) Any claimant whose claim has Board shall become effective when it is
transferred to the fund. been subsequently denied in a issued. An order issued by a court shall
(a) General. It is the purpose of this modification proceeding will be entitled become effective in accordance with the
section to define procedures to expedite to expedited review of the modification rules of the court.
the handling and disposition of claims decision. Where a formal hearing was (b)(1) While an effective order
affected by the benefit liability transfer previously held, the claimant may requiring the payment of benefits
provisions of Section 205 of the Black waive his right to a further hearing and remains in effect, monthly benefits, at
Lung Benefits Amendments of 1981. ask that a decision be made on the the rates set forth in § 725.520, shall be
(b) Action by the Department. The record of the prior hearing, as due on the fifteenth day of the month
OWCP shall, in accordance with the supplemented by any additional following the month for which the
criteria contained in § 725.496, review documentary evidence which the benefits are payable. For example,
each claim which is or may be affected parties wish to introduce and briefs of benefits payable for the month of
by the provisions of Section 205 of the the parties, if desired. In any case in January shall be due on the fifteenth day
Black Lung Benefits Amendments of which the claimant waives his right to of February.
1981. Any party to a claim, adjudication a second hearing, a decision and order (2) Within 30 days after the issuance
officer, or adjudicative body may must be issued within 30 days of the of an effective order requiring the
request that such a review be conducted date upon which the parties agree the payment of benefits, the district director
and that the record be supplemented record has been completed. shall compute the amount of benefits
payable for periods prior to the effective (1) Mistake in fact. The provisions of this part shall be applicable to claims
date of the order, in addition to any paragraphs (b) or (c) of this section, as considered under this section as is
interest payable for such periods (see applicable, shall govern the appropriate.
§ 725.608), and shall so notify the determination of the date from which (c) In any case where the miner
parties. Any computation made by the benefits are payable. returns to coal mine or comparable and
district director under this paragraph (2) Change in conditions. Benefits are gainful work, the payments to such
shall strictly observe the terms of the payable to a miner beginning with the miner shall be suspended and no
order. Benefits and interest payable for month of onset of total disability due to benefits shall be payable (except as
such periods shall be due on the pneumoconiosis arising out of coal mine provided in section 411(c)(3) of the Act)
thirtieth day following issuance of the employment, provided that no benefits for the period during which the miner
district director’s computation. A copy shall be payable for any month prior to continues to work. If the miner again
of the current table of applicable interest the effective date of the most recent terminates employment, the district
rates shall be attached to the denial of the claim by a district director director may require the miner to
computation. or administrative law judge. Where the submit to further medical examination
(c) Benefits are payable for monthly evidence does not establish the month before authorizing the payment of
periods and shall be paid directly to an of onset, benefits shall be payable to benefits.
eligible claimant or his or her such miner from the month in which § 725.505 Payees.
representative payee (see § 725.510) the claimant requested modification.
(e) In the case of a claim filed between Benefits may be paid, as appropriate,
beginning with the month during which to a beneficiary, to a qualified
eligibility begins. Benefit payments July 1, 1973, and December 31, 1973,
benefits shall be payable as provided by dependent, or to a representative
shall terminate with the month before authorized under this subpart to receive
the month during which eligibility this section, except to the extent
prohibited by § 727.303 (see § 725.4(d)). payments on behalf of such beneficiary
terminates. If a claimant dies in the first or dependent.
month during which all requirements (f) No benefits shall be payable with
for eligibility are met, benefits shall be respect to a claim filed after December § 725.506 Payment on behalf of another;
paid for that month. 31, 1973 (a part C claim), for any period ‘‘legal guardian’’ defined.
of eligibility occurring before January 1, Benefits are paid only to the
§ 725.503 Date from which benefits are 1974. beneficiary, his or her representative
payable. (g) Each decision and order awarding payee (see § 725.510) or his or her legal
(a) In accordance with the provisions benefits shall indicate the month from guardian. As used in this section, ‘‘legal
of section 6(a) of the Longshore Act as which benefits are payable to the guardian’’ means an individual who has
incorporated by section 422(a) of the eligible claimant. been appointed by a court of competent
Act, and except as provided in § 725.504 Payments to a claimant jurisdiction or otherwise appointed
§ 725.504, the provisions of this section employed as a miner. pursuant to law to assume control of
shall be applicable in determining the and responsibility for the care of the
(a) In the case of a claimant who is
date from which benefits are payable to beneficiary, the management of his or
employed as a miner (see § 725.202) at
an eligible claimant for any claim filed her estate, or both.
the time of a final determination of such
after March 31, 1980. Except as
miner’s eligibility for benefits, no § 725.507 Guardian for minor or
provided in paragraph (d) of this
benefits shall be payable unless: incompetent.
section, the date from which benefits are (1) The miner’s eligibility is
payable for any claim approved under An adjudication officer may require
established under section 411(c)(3) of that a legal guardian or representative be
part 727 shall be determined in the Act; or
accordance with § 727.302 (see appointed to receive benefit payments
(2) the miner terminates his or her payable to any person who is mentally
§ 725.4(d)). coal mine employment within 1 year
(b) Miner’s claim. Benefits are payable incompetent or a minor and to exercise
from the date of the final determination the powers granted to, or to perform the
to a miner who is entitled beginning of the claim.
with the month of onset of total duties otherwise required of such
(b) If the eligibility of a working miner person under the Act.
disability due to pneumoconiosis is established under section 411(c)(3) of
arising out of coal mine employment. the Act, benefits shall be payable as is § 725.510 Representative payee.
Where the evidence does not establish otherwise provided in this part. If (a) If the district director determines
the month of onset, benefits shall be eligibility cannot be established under that the best interests of a beneficiary
payable to such miner beginning with section 411(c)(3), and the miner are served thereby, the district director
the month during which the claim was continues to be employed as a miner in may certify the payment of such
filed. In the case of a miner who filed any capacity for a period of less than 1 beneficiary’s benefits to a representative
a claim before January 1, 1982, benefits year after a final determination of the payee.
shall be payable to the miner’s eligible claim, benefits shall be payable (b) Before any amount shall be
survivor (if any) beginning with the beginning with the month during which certified for payment to any
month in which the miner died. the miner ends his or her coal mine representative payee for or on behalf of
(c) Survivor’s claim. Benefits are employment. If the miner’s employment a beneficiary, such representative payee
payable to a survivor who is entitled continues for more than 1 year after a shall submit to the district director such
beginning with the month of the miner’s final determination of eligibility, such evidence as may be required of his or
death, or January 1, 1974, whichever is determination shall be considered a her relationship to, or his or her
later. denial of benefits on the basis of the responsibility for the care of, the
(d) If a claim is awarded pursuant to miner’s continued employment, and the beneficiary on whose behalf payment is
section 22 of the Longshore Act and miner may seek benefits only as to be made, or of his or her authority to
§ 725.310, then the date from which provided in § 725.310, if applicable, or receive such a payment. The district
benefits are payable shall be determined by filing a new claim under this part. director may, at any time thereafter,
as follows: The provisions of Subparts E and F of require evidence of the continued
existence of such relationship, (Social Security No.), for whom (Name of (c) The district director shall specify
responsibility, or authority. If a person payee) is representative payee for black lung the terms and conditions of any
requesting representative payee status benefits. certification authorized under this
fails to submit the required evidence § 725.512 Support of legally dependent section and may terminate any such
within a reasonable period of time after spouse, child, or parent. certification where appropriate.
it is requested, no further payments If current maintenance needs of a (d) Any payment made under this
shall be certified to him or her on behalf beneficiary are being reasonably met, a section, if otherwise valid under the
of the beneficiary unless the required relative or other person to whom Act, is a complete settlement and
evidence is thereafter submitted. payments are certified as representative satisfaction of all claims, rights, and
(c) All benefit payments made to a payee on behalf of the beneficiary may interests in and to such payment, except
representative payee shall be available use part of the payments so certified for that such payment shall not be
only for the use and benefit of the the support of the legally dependent construed to abridge the rights of any
beneficiary, as defined in § 725.511. spouse, a legally dependent child, or a party to recoup any overpayment made.
§ 725.511 Use and benefit defined. legally dependent parent of the § 725.515 Assignment and exemption from
(a) Payments certified to a beneficiary. claims of creditors.
representative payee shall be considered § 725.513 Accountability; transfer. (a) Except as provided by the Act and
as having been applied for the use and (a) The district director may require a this part, no assignment, release, or
benefit of the beneficiary when they are representative payee to submit periodic commutation of benefits due or payable
used for the beneficiary’s current reports including a full accounting of under this part by a responsible operator
maintenance—i.e., to replace current the use of all benefit payments certified shall be valid, and all benefits shall be
income lost because of the disability of to a representative payee. If a requested exempt from claims of creditors and
the beneficiary. Where a beneficiary is report or accounting is not submitted from levy, execution, and attachment or
receiving care in an institution, current within the time allowed, the district other remedy or recovery or collection
maintenance shall include the director shall terminate the certification of a debt, which exemption may not be
customary charges made by the of the representative payee and waived.
institution and charges made for the thereafter payments shall be made (b) Notwithstanding any other
current and foreseeable needs of the directly to the beneficiary. A provision of law, benefits due from, or
beneficiary which are not met by the certification which is terminated under payable by, the Black Lung Disability
institution. this section may be reinstated for good Trust Fund under the Act and this part
(b) Payments certified to a cause, provided that all required reports to a claimant shall be subject to legal
representative payee which are not are supplied to the district director. process brought for the enforcement
needed for the current maintenance of (b) A representative payee who has against the claimant of his or her legal
the beneficiary, except as they may be conserved or invested funds from obligations to provide child support or
used under § 725.512, shall be payments under this part shall, upon make alimony payments to the same
conserved or invested on the the direction of the district director, extent as if the fund was a private
beneficiary’s behalf. Preferred transfer any such funds (including person.
investments are U.S. savings bonds interest) to a successor payee appointed Benefit Rates
which shall be purchased in accordance by the district director or, at the option
with applicable regulations of the U.S. of the district director, shall transfer § 725.520 Computation of benefits.
Treasury Department (31 CFR part 315). such funds to the Office for (a) Basic rate. The amount of benefits
Surplus funds may also be invested in recertification to a successor payee or payable to a beneficiary for a month is
accordance with the rules applicable to the beneficiary. determined, in the first instance, by
investment of trust estates by trustees. computing the ‘‘basic rate.’’ The basic
For example, surplus funds may be § 725.514 Certification to dependent of rate is equal to 371⁄2 percent of the
deposited in an interest or dividend augmentation portion of benefit. monthly pay rate for Federal employees
bearing account in a bank or trust (a) If the basic benefit of a miner or in GS–2, step 1. That rate for a month
company or in a savings and loan of a surviving spouse is augmented is determined by:
association if the account is either because of one or more dependents, and (1) Ascertaining the lowest annual
federally insured or is otherwise insured it appears to the district director that the rate of pay (step 1) for Grade GS–2 of the
in accordance with State law best interests of such dependent would General Schedule applicable to such
requirements. Surplus funds deposited be served thereby, or that the augmented month (see 5 U.S.C. 5332);
in an interest or dividend bearing benefit is not being used for the use and (2) Ascertaining the monthly rate
account in a bank or trust company or benefit (as defined in this subpart) of the thereof by dividing the amount
in a savings and loan association must augmentee, the district director may determined in paragraph (a)(1) of this
be in a form of account which clearly certify payment of the amount of such section by 12; and
shows that the representative payee has augmentation (to the extent attributable (3) Ascertaining the basic rate under
only a fiduciary, and not a personal, to such dependent) to such dependent the Act by multiplying the amount
interest in the funds. The preferred directly, or to a legal guardian or a determined in paragraph (a)(2) of this
forms of such accounts are as follows: representative payee for the use and section by 0.375 (that is, by 371⁄2
benefit of such dependent. percent).
Name of beneficiary lllllllllll
(b) Any request to the district director (b) Basic benefit. When a miner or
by (Name of representative payee) to certify separate payment of the surviving spouse is entitled to benefits
representative payee,
or (Name of beneficiary)
amount of an augmentation in for a month for which he or she has no
by (Name of representative payee) trustee, accordance with paragraph (a) of this dependents who qualify under this part
U.S. savings bonds purchased with surplus section shall be in writing on such form and when a surviving child of a miner
funds by a representative payee for an and in accordance with such or spouse, or a parent, brother, or sister
incapacitated adult beneficiary should be instructions as are prescribed by the of a miner, is entitled to benefits for a
registered as follows: (Name of beneficiary) Office. month for which he or she is the only
beneficiary entitled to benefits, the behalf of such individual shall be at a lump sum award shall be made. Such
amount of benefits to which such rate equal to the highest rate of benefits operator or carrier shall, in the event a
beneficiary is entitled is equal to the for which entitlement is established by lump sum award is made, tender full
basic rate as computed in accordance reason of eligibility as a beneficiary, or and prompt payment of such award to
with this section (raised, if not a by reason of his or her qualification as the claimant as though such award were
multiple of 10 cents, to the next high a dependent for augmentation of benefit a final payment of monthly benefits.
multiple of 10 cents). This amount is purposes. Except as provided in paragraph (g) of
referred to as the ‘‘basic benefit.’’ this section, such lump sum award shall
(c) Augmented benefit. (1) When a § 725.521 Commutation of payments; lump forever discharge such operator or
miner or surviving spouse is entitled to sum awards.
carrier from its responsibility to make
benefits for a month for which he or she (a) Whenever the district director monthly benefit payments under the Act
has one or more dependents who determines that it is in the interest of to the person who has requested such
qualify under this part, the amount of justice, the liability for benefits or any lump-sum award. In the event that an
benefits to which such miner or part thereof as determined by a final operator or carrier is adjudicated liable
surviving spouse is entitled is increased. adjudication, may, with the approval of for the payment of benefits, such
This increase is referred to as an the Director, be discharged by the operator or carrier shall not be liable for
‘‘augmentation.’’ payment of a lump sum equal to the any portion of a commuted or lump sum
(2) The benefits of a miner or present value of future benefit payments award predicated upon benefits due any
surviving spouse are augmented to take commuted, computed at 4 percent true claimant prior to January 1, 1974.
account of a particular dependent discount compounded annually. (g) In the event a lump-sum award is
beginning with the first month in which (b) Applications for commutation of approved under this section, such
such dependent satisfies the conditions future payments of benefits shall be award shall not operate to discharge an
set forth in this part, and continues to made to the district director in the operator carrier, or the fund from any
be augmented through the month before manner prescribed by the district responsibility imposed by the Act for
the month in which such dependent director. If the district director the payment of medical benefits to an
ceases to satisfy the conditions set forth determines that an award of a lump sum eligible miner.
in this part, except in the case of a child payment of such benefits would be in
the interest of justice, he or she shall § 725.522 Payments prior to final
who qualifies as a dependent because he
refer such application, together with the adjudication.
or she is a student. In the latter case,
such benefits continue to be augmented reasons in support of such (a) If an operator or carrier fails or
through the month before the first determination, to the Director for refuses to commence the payment of
month during no part of which he or she consideration. benefits within 30 days of issuance of an
qualifies as a student. (c) The Director shall, in his or her initial determination of eligibility by the
(3) The basic rate is augmented by 50 discretion, grant or deny the application district director (see § 725.420), or fails
percent for one such dependent, 75 for commutation of payments. Such or refuses to commence the payment of
percent for two such dependents, and decision may be appealed to the any benefits due pursuant to an effective
100 percent for three or more such Benefits Review Board. order by a district director,
dependents. (d) The computation of all administrative law judge, Benefits
(d) Survivor benefits. As used in this commutations of such benefits shall be Review Board, or court, the fund shall
section, ‘‘survivor’’ means a surviving made by the OWCP. For this purpose commence the payment of such benefits
child of a miner or surviving spouse, or the file shall contain the date of birth of and shall continue such payments as
a surviving parent, brother, or sister of the person on whose behalf appropriate. In the event that the fund
a miner, who establishes entitlement to commutation is sought, as well as the undertakes the payment of benefits on
benefits under this part. date upon which such commutation behalf of an operator or carrier, the
(e) Computation and rounding. (1) shall be effective. provisions of §§ 725.601 through
Any computation prescribed by this (e) For purposes of determining the 725.609 shall be applicable to such
section is made to the third decimal amount of any lump sum award, the operator or carrier.
place. probability of the death of the disabled (b) If benefit payments are
(2) Monthly benefits are payable in miner and/or other persons entitled to commenced prior to the final
multiples of 10 cents. Therefore, a benefits before the expiration of the adjudication of the claim and it is later
monthly payment of amounts derived period during which he or she is determined by an administrative law
under paragraph (c)(3) of this section entitled to benefits, shall be determined judge, the Board, or court that the
which is not a multiple of 10 cents is in accordance with the most current claimant was ineligible to receive such
increased to the next higher multiple of United States Life Tables, as developed payments, such payments shall be
10 cents. by the Department of Health, Education, considered overpayments pursuant to
(3) Since a fraction of a cent is not a and Welfare, and the probability of the § 725.540 and may be recovered in
multiple of 10 cents, such an amount remarriage of a surviving spouse shall accordance with the provisions of this
which contains a fraction in the third be determined in accordance with the subpart.
decimal place is raised to the next remarriage tables of the Dutch Royal Special Provisions for Operator
higher multiple of 10 cents. Insurance Institution. The probability of Payments
(f) Eligibility based on the coal mine the happening of any other contingency
employment of more than one miner. affecting the amount or duration of the § 725.530 Operator payments; generally.
Where an individual, for any month, is compensation shall be disregarded. (a) Benefits payable by an operator or
entitled (and/or qualifies as a dependent (f) In the event that an operator or carrier pursuant to an effective order
for purposes of augmentation of carrier is adjudicated liable for the issued by a district director,
benefits) based on the disability or death payment of benefits, such operator or administrative law judge, Benefits
due to pneumoconiosis arising out of carrier shall be notified of and given an Review Board, or court, or by an
the coal mine employment of more than opportunity to participate in the operator that has agreed that it is liable
one miner, the benefit payable to or on proceedings to determine whether a for the payment of benefits to a
claimant, shall be paid by the operator the Benefits Review Board or a court, not a multiple of 10 cents, a benefit rate
or carrier immediately when they the district director, after receiving which contains such a fraction in the
become due (see § 725.502(b)). An notification of the occurrence of an third decimal is raised to the next
operator that fails to pay any benefits event that would require the higher multiple of 10 cents.
that are due, with interest, shall be suspension, reduction, or termination of (e) Any individual entitled to a
considered in default with respect to benefits, shall follow the procedures for benefit, who is aware of any
those benefits, and the provisions of the determination of claims set forth in circumstances which could affect
§ 725.605 of this part shall be subparts E and F. entitlement to benefits, eligibility for
applicable. In addition, a claimant who payment, or the amount of benefits, or
Increases and Reductions of Benefits result in the termination, suspension, or
does not receive any benefits within 10
days of the date they become due is § 725.533 Modification of benefits reduction of benefits, shall promptly
entitled to additional compensation amounts; general. report these circumstances to the Office.
equal to twenty percent of those benefits (a) Under certain circumstances, the The Office may at any time require an
(see § 725.607). Arrangements for the amount of monthly benefits as individual receiving, or claiming
payment of medical costs shall be made computed in § 725.520 or lump-sum entitlement to, benefits, either on his or
by such operator or carrier in award (§ 725.521) shall be modified to her own behalf or on behalf of another,
accordance with the provisions of determine the amount actually to be to submit a written statement giving
subpart J of this part. paid to a beneficiary. With respect to pertinent information bearing upon the
(b) Benefit payments made by an any benefits payable for all periods of issue of whether or not an event has
operator or carrier shall be made eligibility after January 1, 1974, a occurred which would cause such
directly to the person entitled thereto or reduction of the amount of benefits benefit to be terminated, or which
a representative payee if authorized by payable shall be required on account of: would subject such benefit to reductions
the district director. The payment of a (1) Any compensation or benefits or suspension under the provisions of
claimant’s attorney’s fee, if any is received under any State workers’ the Act. The failure of an individual to
awarded, shall be made directly to such compensation law because of death or submit any such report or statement,
attorney. Reimbursement of the fund, partial or total disability due to properly executed, to the Office shall
including interest, shall be paid directly pneumoconiosis; or subject such benefit to reductions,
to the Secretary on behalf of the fund. (2) Any compensation or benefits suspension, or termination as the case
received under or pursuant to any may be.
§ 725.531 Receipt for payment.
Federal law including part B of title IV § 725.534 Reduction of State benefits.
Any individual receiving benefits
of the Act because of death or partial or No benefits under section 415 of part
under the Act in his or her own right,
total disability due to pneumoconiosis; B of title IV of the Act shall be payable
or as a representative payee, or as the
or to the residents of a State which, after
duly appointed agent for the estate of a
(3) In the case of benefits to a parent, December 31, 1969, reduces the benefits
deceased beneficiary, shall execute
brother, or sister as a result of a claim payable to persons eligible to receive
receipts for benefits paid by any
filed at any time or benefits payable on benefits under section 415 of the Act
operator which shall be produced by
a miner’s claim which was filed on or under State laws applicable to its
such operator for inspection whenever
after January 1, 1982, the excess general work force with regard to
the district director requires. A canceled
earnings from wages and from net workers’ compensation (including
check shall be considered adequate
earnings from self-employment (see compensation for occupational disease),
receipt of payment for purposes of this
§ 410.530 of this title) of such parent, unemployment compensation, or
section. No operator or carrier shall be
brother, sister, or miner, respectively; or disability insurance benefits which are
required to retain receipts for payments
(4) The fact that a claim for benefits funded in whole or in part out of
made for more than 5 years after the
from an additional beneficiary is filed, employer contributions.
date on which such receipt was
or that such claim is effective for a
executed.
payment during the month of filing, or § 725.535 Reductions; receipt of State or
§ 725.532 Suspension, reduction, or a dependent qualifies under this part for Federal benefit.
termination of payments. an augmentation portion of a benefit of (a) As used in this section the term
(a) No suspension, reduction, or a miner or widow for a period in which ‘‘State or Federal benefit’’ means a
termination in the payment of benefits another dependent has previously payment to an individual on account of
is permitted unless authorized by the qualified for an augmentation. total or partial disability or death due to
district director, administrative law (b) An adjustment in a beneficiary’s pneumoconiosis only under State or
judge, Board, or court. No suspension, monthly benefit may be required Federal laws relating to workers’
reduction, or termination shall be because an overpayment or compensation. With respect to a claim
authorized except upon the occurrence underpayment has been made to such for which benefits are payable for any
of an event which terminates a beneficiary (see §§ 725.540–725.546). month between July 1 and December 31,
claimant’s eligibility for benefits (see (c) A suspension of a beneficiary’s 1973, ‘‘State benefit’’ means a payment
subpart B of this part) or as is otherwise monthly benefits may be required when to a beneficiary made on account of
provided in subpart C of this part, the Office has information indicating disability or death due to
§§ 725.306 and 725.310, or this subpart that reductions on account of excess pneumoconiosis under State laws
(see also §§ 725.533 through 725.546). earnings may reasonably be expected. relating to workers’ compensation
(b) Any unauthorized suspension in (d) Monthly benefit rates are payable (including compensation for
the payment of benefits by an operator in multiples of 10 cents. Any monthly occupational disease), unemployment
or carrier shall be treated as provided in benefit rate which, after the applicable compensation, or disability insurance.
subpart I. computations, augmentations, and (b) Benefit payments to a beneficiary
(c) Unless suspension, reduction, or reductions is not a multiple of 10 cents, for any month are reduced (but not
termination of benefits payments is is increased to the next higher multiple below zero) by an amount equal to any
required by an administrative law judge, of 10 cents. Since a fraction of a cent is payments of State or Federal benefits
received by such beneficiary for such § 725.537 Reductions; retroactive effect of § 725.539 More than one reduction event.
month. an additional claim for benefits. If a reduction for receipt of State or
(c) Where a State or Federal benefit is Except as provided in § 725.212(b), Federal benefits and a reduction on
paid periodically but not monthly, or in beginning with the month in which a account of excess earnings are
a lump sum as a commutation of or a person other than a miner files a claim chargeable to the same month, the
substitution for periodic benefits, the and becomes entitled to benefits, the benefit for such month is first reduced
reduction under this section is made at benefits of other persons entitled to (but not below zero) by the amount of
benefits with respect to the same miner, the State or Federal benefits, and the
such time or times and in such amounts
are adjusted downward, if necessary, so remainder of the benefit for such month,
as the Office determines will
that no more than the permissible if any, is then reduced (but not below
approximate as nearly as practicable the
amount of benefits (the maximum zero) by the amount of excess earnings
reduction required under paragraph (b) chargeable to such month.
of this section. In making such a amount for the number of beneficiaries
determination, a weekly State or Federal involved) will be paid. Overpayments; Underpayments
benefit is multiplied by 41⁄3 and a § 725.538 Reductions; effect of § 725.540 Overpayments.
biweekly benefit is multiplied by 21⁄6 to augmentation of benefits based on
subsequent qualification of individual. (a) General. As used in this subpart,
ascertain the monthly equivalent for
the term ‘‘overpayment’’ includes:
reduction purposes. (a) Ordinarily, a written request that (1) Payment where no amount is
(d) Amounts paid or incurred or to be the benefits of a miner or surviving payable under this part;
incurred by the individual for medical, spouse be augmented on account of a (2) Payment in excess of the amount
legal, or related expenses in connection qualified dependent is made as part of payable under this part;
with this claim for State or Federal the claim for benefits. However, it may (3) A payment under this part which
benefits (defined in paragraph (a) of this also be made thereafter. has not been reduced by the amounts
section) are excluded in computing the (b) In the latter case, beginning with required by the Act (see § 725.533);
reduction under paragraph (b) of this the month in which such a request is (4) A payment under this part made
section, to the extent that they are filed on account of a particular to a resident of a State whose residents
consistent with State or Federal Law. dependent and in which such are not entitled to benefits (see
Such medical, legal, or related expenses dependent qualifies for augmentation §§ 725.402 and 725.403);
purposes under this part, the augmented (5) Payment resulting from failure to
may be evidenced by the State or
benefits attributable to other qualified terminate benefits to an individual no
Federal benefit awards, compromise
dependents (with respect to the same longer entitled thereto;
agreement, or court order in the State or (6) Duplicate benefits paid to a
Federal benefit proceedings, or by such miner or surviving spouse), if any, are
adjusted downward, if necessary, so that claimant on account of concurrent
other evidence as the Office may eligibility under this part and parts 410
require. Such other evidence may the permissible amount of augmented
benefits (the maximum amount for the or 727 (see § 725.4(d)) of this title or as
consist of: provided in § 725.309.
number of dependents involved) will
(1) A detailed statement by the not be exceeded. (b) Overpaid beneficiary is living. If
individual’s attorney, physician, or the the beneficiary to whom an
(c) Where, based on the entitlement to
employer’s insurance carrier; or overpayment was made is living at the
benefits of a miner or surviving spouse,
(2) Bills, receipts, or canceled checks; time of a determination of such
a dependent would have qualified for
or overpayment, is entitled to benefits at
augmentation purposes for a prior
the time of the overpayment, or at any
(3) Other evidence indicating the month of such miner’s or surviving
time thereafter becomes so entitled, no
amount of such expenses; or spouse’s entitlement had such request
benefit for any month is payable to such
been filed in such prior month, such
(4) Any combination of the foregoing individual, except as provided in
request is effective for such prior month.
evidence from which the amount of paragraph (c) of this section, until an
For any month before the month of
such expenses may be determinable. amount equal to the amount of the
filing such request, however, otherwise
Such expenses shall not be excluded overpayment has been withheld or
correct benefits previously certified by
unless established by evidence as refunded.
the Office may not be changed. Rather (c) Adjustment by withholding part of
required by the Office. the amount of the augmented benefit a monthly benefit. Adjustment under
§ 725.536 Reductions; excess earnings.
attributable to the dependent filing such paragraph (b) of this section may be
request in the later month is reduced for effected by withholding a part of the
In the case of a surviving parent, each month of the retroactive period to monthly benefit payable to a beneficiary
brother, or sister, whose claim was filed the extent that may be necessary. This where it is determined that:
at any time, or of a miner whose claim means that for each month of the (1) Withholding the full amount each
was filed on or after January 1, 1982, retroactive period, the amount payable month would deprive the beneficiary of
benefit payments are reduced as to the dependent filing the later income required for ordinary and
appropriate by an amount equal to the augmentation request is the difference, necessary living expenses;
deduction which would be made with if any, between: (2) The overpayment was not caused
respect to excess earnings under the (1) The total amount of augmented by the beneficiary’s intentionally false
provisions of sections 203 (b), (f), (g), benefits certified for payment for other statement or representation, or willful
(h), (j), and (l) of the Social Security Act dependents for that month, and concealment of, or deliberate failure to
(42 U.S.C. 403 (b), (f), (g), (h), (j), and (2) The permissible amount of furnish, material information; and
(l)), as if such benefit payments were augmented benefits (the maximum (3) Recoupment can be effected in an
benefits payable under section 202 of amount for the number of dependents amount of not less than $ 10 a month
the Social Security Act (42 U.S.C. 402) involved) payable for the month for all and at a rate which would not
(see §§ 404.428 through 404.456 of this dependents, including the dependent unreasonably extend the period of
title). filing later. adjustment.
(d) Overpaid beneficiary dies before (b) When there will be no the amount which can be recovered by
adjustment. If an overpaid beneficiary compromise, suspension, or termination enforced collection proceedings, giving
dies before adjustment is completed of collection of a claim for overpayment. due consideration to the exemption
under the provisions of paragraph (b) of (1) In any case where the overpaid available to the overpaid individual
this section, recovery of the individual is alive, a claim for under State or Federal law and the time
overpayment shall be effected through overpayment will not be compromised, which collection will take.
repayment by the estate of the deceased nor will there be suspension or (f) Payment. Payment of the amount
overpaid beneficiary, or by withholding termination of collection of the claim by the Office has agreed to accept as a
of amounts due the estate of such the Office, if there is an indication of compromise in full settlement of a claim
deceased beneficiary, or both. fraud, the filing of a false claim, or for recovery of an overpayment under
misrepresentation on the part of such this part shall be made within the time
§ 725.541 Notice of waiver of adjustment individual or on the part of any other and in the manner set by the Office. A
or recovery of overpayment. party having any interest in the claim. claim for the overpayment shall not be
Whenever a determination is made (2) In any case where the overpaid considered compromised or settled until
that more than the correct amount of individual is deceased: the full payment of the compromised
payment has been made, notice of the (i) A claim for overpayment in excess amount has been made within the time
provisions of section 204(b) of the of $ 5,000 will not be compromised, nor and manner set by the Office. Failure of
Social Security Act regarding waiver of will there be suspension or termination the overpaid individual or his or her
adjustment or recovery shall be sent to of collection of the claim by the Office estate to make such payment as
the overpaid individual, to any other if there is an indication of fraud, the provided shall result in reinstatement of
individual against whom adjustment or filing of a false claim, or the full amount of the overpayment less
recovery of the overpayment is to be misrepresentation on the part of such any amounts paid prior to such default.
effected, and to any operator or carrier deceased individual; and
which may be liable to such overpaid (ii) A claim for overpayment, § 725.545 Underpayments.
individual. regardless of the amount, will not be (a) General. As used in this subpart,
compromised, nor will there be the term ‘‘underpayment’’ includes a
§ 725.542 When waiver of adjustment or suspension or termination of collection
recovery may be applied. payment in an amount less than the
of the claim by the Office if there is an amount of the benefit due for such
There shall be no adjustment or indication that any person other than month, and nonpayment where some
recovery of an overpayment in any case the deceased overpaid individual had a amount of such benefits is payable.
where an incorrect payment has been part in the fraudulent action which
(b) Underpaid individual is living. If
made with respect to an individual: resulted in the overpayment.
(c) Inability to pay claim for recovery an individual to whom an
(a) Who is without fault, and where underpayment was made is living, the
(b) Adjustment or recovery would of overpayment. In determining whether
the overpaid individual is unable to pay deficit represented by such
either: underpayment shall be paid to such
(1) Defeat the purpose of title IV of the a claim for recovery of an overpayment
under this part, the Office shall consider individual either in a single payment (if
Act, or he or she is not entitled to a monthly
(2) Be against equity and good the individual’s age, health, present and
potential income (including inheritance benefit or if a single payment is
conscience. requested by the claimant in writing) or
prospects), assets (e.g., real property,
§ 725.543 Standards for waiver of savings account), possible concealment by increasing one or more monthly
adjustment or recovery. or improper transfer of assets, and assets benefit payments to which such
or income of such individual which individual becomes entitled.
The standards for determining the
may be available in enforced collection (c) Underpaid individual dies before
applicability of the criteria listed in
proceedings. The Office will also adjustment of underpayment. If an
§ 725.542 shall be the same as those
consider exemptions available to such individual to whom an underpayment
applied by the Social Security
individual under the pertinent State or was made dies before receiving payment
Administration under §§ 404.506
Federal law in such proceedings. In the of the deficit or negotiating the check or
through 404.512 of this title.
event the overpaid individual is checks representing payment of the
§ 725.544 Collection and compromise of deceased, the Office shall consider the deficit, such payment shall be
claims for overpayment.
available assets of the estate, taking into distributed to the living person (or
(a) General effect of 31 U.S.C. 3711. In account any liens or superior claims persons) in the highest order of priority
accordance with 31 U.S.C. 3711 and against the estate. as follows:
applicable regulations, claims by the (d) Cost of collection or litigative (1) The deceased individual’s
Office against an individual for recovery probabilities. Where the probable costs surviving spouse who was either:
of an overpayment under this part not of recovering an overpayment under this (i) Living in the same household with
exceeding the sum of $100,000, part would not justify enforced the deceased individual at the time of
exclusive of interest, may be collection proceedings for the full such individual’s death; or
compromised, or collection suspended amount of the claim, or where there is (ii) In the case of a deceased miner,
or terminated, where such individual or doubt concerning the Office’s ability to entitled for the month of death to black
his or her estate does not have the establish its claim as well as the time lung benefits as his or her surviving
present or prospective ability to pay the which it will take to effect such spouse or surviving divorced spouse.
full amount of the claim within a collection, a compromise or settlement (2) In the case of a deceased miner or
reasonable time (see paragraph (c) of for less than the full amount may be spouse his or her child entitled to
this section), or the cost of collection is considered. benefits as the surviving child of such
likely to exceed the amount of recovery (e) Amount of compromise. The miner or surviving spouse for the month
(see paragraph (d) of this section), amount to be accepted in compromise of in which such miner or spouse died (if
except as provided under paragraph (b) a claim for overpayment under this part more than one such child, in equal
of this section. shall bear a reasonable relationship to shares to each such child).
(3) In the case of a deceased miner, ‘‘good acquittance’’ when payment to operator as described in § 725.603.
his parent entitled to benefits as the that person will release the Office from Enforcement of this lien shall be
surviving parent of such miner for the further liability for such payment. pursued in an appropriate U.S. district
month in which such miner died (if court. If the Director determines that the
more than one such parent, in equal § 725.546 Relation to provisions for remedy provided by § 725.603 may not
reductions or increases.
shares to each such parent). be sufficient to guarantee the continued
(4) The surviving spouse of the The amount of an overpayment or an compliance with the terms of an award
deceased individual who does not underpayment is the difference between or awards against the operator, the
qualify under paragraph (c)(1) of this the amount to which the beneficiary Director shall in addition seek an
section. was actually entitled and the amount injunction in the U.S. district court to
(5) The child or children of the paid. Overpayment and underpayment prohibit future noncompliance by the
deceased individual who do not qualify simultaneously outstanding against the operator and such other relief as the
under paragraph (c)(2) of this section (if same beneficiary shall first be adjusted court considers appropriate (see
more than one such child, in equal against one another before adjustment § 725.604). If an operator unlawfully
shares to each such child). pursuant to the other provisions of this suspends or terminates the payment of
(6) The parent or parents of the subpart. benefits to a claimant, the district
deceased individual who do not qualify director shall declare the award in
§ 725.547 Applicability of overpayment
under paragraph (c)(3) of this section (if and underpayment provisions to operator default and proceed in accordance with
more than one such parent, in equal or carrier. § 725.605. In all cases payments in
shares to each such parent). (a) The provisions of this subpart addition to compensation (see
(7) The legal representative of the § 725.607) and interest (see § 725.608)
relating to overpayments and
estate of the deceased individual as shall be sought by the Director or
underpayments shall be applicable to
defined in paragraph (e) of this section. awarded by the district director.
(d) Deceased beneficiary. In the event overpayments and underpayments made
by responsible operators or their (c) In certain instances the remedies
that a person, who is otherwise provided by the Act are concurrent; that
qualified to receive payments as the insurance carriers, as appropriate.
(b) No operator or carrier may recover, is, more than one remedy might be
result of a deficit caused by an appropriate in any given case. In such
or make an adjustment of, an
underpayment under the provisions of a case, the Director shall select the
overpayment without prior application
paragraph (c) of this section, dies before remedy or remedies appropriate for the
to, and approval by, the Office which
receiving payment or before negotiating enforcement action. In making this
shall exercise full supervisory authority
the check or checks representing such selection, the Director shall consider the
over the recovery or adjustment of all
payment, his or her share of the best interests of the claimant as well as
overpayments.
underpayment shall be divided among those of the fund.
the remaining living person(s) in the § 725.548 Procedures applicable to
same order or priority. In the event that overpayments and underpayments. § 725.602 Reimbursement of the fund.
there is (are) no other such person(s), (a) In any case involving either (a) In any case in which the fund has
the underpayment shall be paid to the overpayments or underpayments, the paid benefits, including medical
living person(s) in the next lower order Office may take any necessary action, benefits, on behalf of an operator or
of priority under paragraph (c) of this and district directors may issue other employer which is determined
section. appropriate orders to protect the rights liable therefore, or liable for a part
(e) Definition of legal representative. of the parties. thereof, such operator or other employer
The term ‘‘legal representative,’’ for the (b) Disputes arising out of orders so shall simultaneously with the first
purpose of qualifying for receipt of an issued shall be resolved by the payment of benefits made to the
underpayment, generally means the procedures set out in subpart F of this beneficiary, reimburse the fund (with
executor or the administrator of the part. interest) for the full amount of all
estate of the deceased beneficiary. benefit payments made by the fund with
However, it may also include an Subpart I—Enforcement of Liability; respect to the claim.
individual, institution or organization Reports (b) In any case where benefit
acting on behalf of an unadministered payments have been made by the fund,
§ 725.601 Enforcement generally.
estate, provided the person can give the the fund shall be subrogated to the
Office good acquittance (as defined in (a) The Act, together with certain rights of the beneficiary. The Secretary
paragraph (f) of this section). The incorporated provisions from the of Labor may, as appropriate, exercise
following persons may qualify as legal Longshoremen’s and Harbor Workers’ such subrogation rights.
representative for purposes of this Compensation Act, contains a number
section, provided they can give the of provisions which subject an operator § 725.603 Payments by the fund on behalf
or other employer, claimants and others of an operator; liens.
Office good acquittance:
(1) A person who qualifies under a to penalties for failure to comply with (a) If an amount is paid out of the
State’s ‘‘small estate’’ statute; or certain provisions of the Act, or failure fund to an individual entitled to
(2) A person resident in a foreign to commence and continue prompt benefits under this part or part 727 of
country who under the laws and periodic payments to a beneficiary. this subchapter (see § 725.4(d)) on
customs of that country, has the right to (b) It is the policy and intent of the behalf of an operator or other employer
receive assets of the estate; or Department to vigorously enforce the which is or was required to pay or
(3) A public administrator; or provisions of this part through the use secure the payment of all or a portion
(4) A person who has the authority of the remedies provided by the Act. of such amount (see § 725.522), the
under applicable law to collect the Accordingly, if an operator refuses to operator or other employer shall be
assets of the estate of the deceased pay benefits with respect to a claim for liable to the United States for repayment
beneficiary. which the operator has been adjudicated to the fund of the amount of benefits
(f) Definition of ‘‘good acquittance.’’ A liable, the Director shall invoke and properly attributable to such operator or
person is considered to give the Office execute the lien on the property of the other employer.
(b) If an operator or other employer § 725.604 Enforcement of final awards. supplementary order if such
liable to the fund refuses to pay, after Notwithstanding the provisions of supplementary order is in accordance
demand, the amount of such liability, § 725.603, if an operator or other with law. Review of the judgment may
there shall be a lien in favor of the employer or its officers or agents fails to be had as in civil suits for damages at
United States upon all property and comply with an order awarding benefits common law. Final proceedings to
rights to property, whether real or that has become final, any beneficiary of execute the judgment may be had by
personal, belonging to such operator or such award or the district director may writ of execution in the form used by
other employer. The lien arises on the apply for the enforcement of the order the court in suits at common law in
date on which such liability is finally to the Federal district court for the actions of assumpsit. No fee shall be
determined, and continues until it is judicial district in which the injury required for filing the supplementary
satisfied or becomes unenforceable by occurred (or to the U.S. District Court order nor for entry of judgment thereon,
reason of lapse of time. for the District of Columbia if the injury and the applicant shall not be liable for
(c)(1) Except as otherwise provided occurred in the District). If the court costs in a proceeding for review of the
under this section, the priority of the determines that the order was made and judgment unless the court shall
lien shall be determined in the same served in accordance with law, and that otherwise direct. The court shall modify
manner as under section 6323 of the such operator or other employer or its such judgment to conform to any later
Internal Revenue Code (26 U.S.C.). officers or agents have failed to comply benefits order upon presentation of a
(2) In the case of a bankruptcy or therewith, the court shall enforce certified copy thereof to the court.
insolvency proceeding, the lien imposed obedience to the order by writ of (c) In cases where judgment cannot be
under this section shall be treated in the injunction or by other proper process, satisfied by reason of the employer’s
same manner as a lien for taxes due and mandatory or otherwise, to enjoin upon insolvency or other circumstances
owing to the United States for purposes such operator or other employer and its precluding payment, the district
of the Bankruptcy Act or section 3466 officers or agents compliance with the director shall make payment from the
of the Revised Statutes (31 U.S.C. 191). order. fund, and in addition, provide any
(3) For purposes of applying section necessary medical, surgical, and other
6323(a) of the Internal Revenue Code § 725.605 Defaults. treatment required by subpart J of this
(26 U.S.C.) to determine the priority (a) Except as is otherwise provided in part. A defaulting employer shall be
between the lien imposed under this this part, no suspension, termination or liable to the fund for payment of the
section and the Federal tax lien, each other failure to pay benefits awarded to amounts paid by the fund under this
lien shall be treated as a judgment lien a claimant is permitted. If an employer section; and for the purpose of enforcing
arising as of the time notice of such lien found liable for the payment of such this liability, the fund shall be
is filed. benefits fails to make such payments subrogated to all the rights of the person
(4) For purposes of the section, notice within 30 days after any date on which receiving such payments or benefits.
of the lien imposed hereunder shall be such benefits are due and payable, the
filed in the same manner as under person to whom such benefits are § 725.606 Security for the payment of
section 6323(f) (disregarding paragraph payable may, within one year after such benefits.
(4) thereof) and (g) of the Internal default, make application to the district (a) Following the issuance of an
Revenue Code (26 U.S.C.). director for a supplementary order effective order by a district director (see
(5) In any case where there has been declaring the amount of the default. § 725.418), administrative law judge (see
a refusal or neglect to pay the liability (b) If after investigation, notice and § 725.479), Benefits Review Board, or
imposed under this section, the hearing as provided in subparts E and court that requires the payment of
Secretary of Labor may bring a civil F of this part, a default is found, the benefits by an operator that has failed to
action in a district court of the United district director or the administrative secure the payment of benefits in
States to enforce the lien of the United law judge, if a hearing is requested, accordance with section 423 of the Act
States under this section with respect to shall issue a supplementary order and § 726.4 of this subchapter, or by a
such liability or to subject any property, declaring the amount of the default, if coal mine construction or transportation
of whatever nature, of the operator, or any. In cases where a lump-sum award employer, the Director may request that
in which it has any right, title, or has been made, if the payment in the operator secure the payment of all
interest, to the payment of such liability. default is an installment, the district benefits ultimately payable on the
(6) The liability imposed by this director or administrative law judge, claim. Such operator or other employer
paragraph may be collected at a may, in his or her discretion, declare the shall thereafter immediately secure the
proceeding in court if the proceeding is whole of the award as the amount in payment of benefits in accordance with
commenced within 6 years after the date default. The applicant may file a the provisions of this section, and
upon which the liability was finally certified copy of such supplementary provide proof of such security to the
determined, or prior to the expiration of order with the clerk of the Federal Director. Such security may take the
any period for collection agreed upon in district court for the judicial district in form of an indemnity bond, a deposit of
writing by the operator and the United which the operator has its principal cash or negotiable securities in
States before the expiration of such 6- place of business or maintains an office compliance with §§ 726.106(c) and
year period. This period of limitation or for the judicial district in which the 726.107 of this subchapter, or any other
shall be suspended for any period injury occurred. In case such principal form acceptable to the Director.
during which the assets of the operator place of business or office is in the (b) The amount of security initially
are in the custody or control of any District of Columbia, a copy of such required by this section shall be
court of the United States, or of any supplementary order may be filed with determined as follows:
State, or the District of Columbia, and the clerk of the U.S. District Court for (1) In a case involving an operator
for 6 months thereafter, and for any the District of Columbia. Such subject to section 423 of the Act and
period during which the operator is supplementary order shall be final and § 726.4 of this subchapter, the amount of
outside the United States if such period the court shall, upon the filing of the the security shall not be less than
of absence is for a continuous period of copy, enter judgment for the amount $175,000, and may be a higher amount
at least 6 months. declared in default by the as determined by the Director, taking
into account the life expectancies of the vacated or reversed, the operator or to interest for any period following the
claimant and any dependents using the other employer may apply to the date on which the beneficiary received
most recent life expectancy tables appropriate adjudication officer for an payment of any benefits from the fund
published by the Social Security order authorizing the return of any pursuant to § 725.522.
Administration; or amounts deposited with a Federal (2) In any case in which an operator
(2) In a case involving a coal mine Reserve Bank and not yet disbursed, and is liable for the payment of retroactive
construction or transportation employer, such application shall be granted. If at benefits, the beneficiary shall also be
the amount of the security shall be any time the Director determines that entitled to simple annual interest on
determined by the Director, taking into additional security is required beyond such benefits, computed from 30 days
account the life expectancies of the that initially required by paragraph (b) after the date of the first determination
claimant and any dependents using the of this section, he may request the that such an award should be made. The
most recent life expectancy tables operator or other employer to increase first determination that such an award
published by the Social Security the amount. Such request shall be should be made may be a district
Administration. treated as if it were issued under director’s initial determination of
(c) If the operator or other employer paragraph (a) of this section. entitlement, an award made by an
fails to provide proof of such security to (g) If a coal mine construction or administrative law judge or a decision
the Director within 30 days of its receipt transportation employer fails to comply by the Board or a court, whichever is the
of the Director’s request to secure the with an order issued under paragraph first such determination of entitlement
payment of benefits issued under (c), and such employer is a corporation, made upon the claim.
paragraph (a) of this section, the the provisions of § 725.609 shall be (3) In any case in which an operator
appropriate adjudication officer shall applicable to the president, secretary, is liable for the payment of additional
issue an order requiring the operator or and treasurer of such employer. compensation (§ 725.607), the
other employer to make a deposit of beneficiary shall also be entitled to
negotiable securities with a Federal § 725.607 Payments in addition to simple annual interest computed from
Reserve Bank in the amount required by compensation. the date upon which the beneficiary’s
paragraph (b). Such securities shall (a) If any benefits payable under the right to additional compensation first
comply with the requirements of terms of an award by a district director arose.
§§ 726.106(c) and 726.107 of this (§ 725.419(d)), a decision and order filed (4) In any case in which an operator
subchapter. In a case in which the and served by an administrative law is liable for the payment of medical
effective order was issued by a district judge (§ 725.478), or a decision filed by benefits, the beneficiary or medical
director, the district director shall be the Board or a U.S. court of appeals, are provider to whom such benefits are
considered the appropriate adjudication not paid by an operator or other owed shall also be entitled to simple
officer. In any other case, the employer ordered to make such annual interest, computed from the date
administrative law judge who issued the payments within 10 days after such upon which the services were rendered,
most recent decision in the case, or such payments become due, there shall be or from 30 days after the date of the first
other administrative law judge as the added to such unpaid benefits an determination that the miner is
Chief Administrative Law Judge shall amount equal to 20 percent thereof, generally entitled to medical benefits,
designate, shall be considered the which shall be paid to the claimant at whichever is later. The first
appropriate adjudication officer, and the same time as, but in addition to, determination that the miner is
shall issue an order under this such benefits, unless review of the order generally entitled to medical benefits
paragraph on motion of the Director. making such award is sought as may be a district director’s initial
The administrative law judge shall have provided in section 21 of the LHWCA determination of entitlement, an award
jurisdiction to issue an order under this and an order staying payments has been made by an administrative law judge or
paragraph notwithstanding the issued. a decision by the Board or a court,
pendency of an appeal of the award of (b) If, on account of an operator’s or whichever is the first such
benefits with the Benefits Review Board other employer’s failure to pay benefits determination of general entitlement
or court. as provided in paragraph (a) of this made upon the claim. The interest shall
(d) An order issued under this section section, benefit payments are made by be computed through the date on which
shall be considered effective when the fund, the eligible claimant shall the operator paid the benefits, except
issued. Disputes regarding such orders nevertheless be entitled to receive such that the beneficiary or medical provider
shall be resolved in accordance with additional compensation to which he or shall not be entitled to interest for any
subpart F of this part. she may be eligible under paragraph (a) period following the date on which the
(e) Notwithstanding any further of this section, with respect to all beneficiary or medical provider received
review of the order in accordance with amounts paid by the fund on behalf of payment of any benefits from the fund
subpart F of this part, if an operator or such operator or other employer. pursuant to § 725.522 or Subpart I of
other employer subject to an order (c) The fund shall not be liable for this part.
issued under this section fails to comply payments in addition to compensation (b) If an operator or other employer
with such order, the appropriate under any circumstances. fails or refuses to pay any or all benefits
adjudication officer shall certify such due pursuant to an award of benefits or
non-compliance to the appropriate § 725.608 Interest. an initial determination of eligibility
United States district court in (a)(1) In any case in which an operator made by the district director and the
accordance with § 725.351(c). fails to pay benefits that are due fund undertakes such payments, such
(f) Security posted in accordance with (§ 725.502), the beneficiary shall also be operator or other employer shall be
this section may be used to make entitled to simple annual interest, liable to the fund for simple annual
payment of benefits that become due computed from the date on which the interest on all payments made by the
with respect to the claim in accordance benefits were due. The interest shall be fund for which such operator is
with § 725.502. In the event that either computed through the date on which determined liable, computed from the
the order awarding compensation or the the operator paid the benefits, except first date on which such benefits are
order issued under this section is that the beneficiary shall not be entitled paid by the fund, in addition to such
operator’s liability to the fund, as is (c) In a case in which the operator is and the provisions of this part shall be
otherwise provided in this part. Interest no longer capable of assuming its valid.
payments owed pursuant to this liability for the payment of benefits (e) This section shall not affect any
paragraph shall be paid directly to the (§ 725.494(e)), against any operator other liability of the employer under
fund. which became a successor operator with this part.
(c) In any case in which an operator respect to the liable operator (§ 725.492)
is liable for the payment of an attorney’s § 725.621 Reports.
after the date on which the claim was
fee pursuant to § 725.367, and the filed, beginning with the most recent (a) Upon making the first payment of
attorney’s fee is payable because the such successor operator; benefits and upon suspension,
award of benefits has become final, the (d) In a case in which the operator is reduction, or increase of payments, the
attorney shall also be entitled to simple no longer capable of assuming its operator or other employer responsible
annual interest, computed from the date liability for the payment of benefits for making payments shall immediately
on which the attorney’s fee was (§ 725.494(e)), and such operator was a notify the district director of the action
awarded. The interest shall be subsidiary of a parent company or a taken, in accordance with a form
computed through the date on which product of a joint venture, or was prescribed by the Office.
the operator paid the attorney’s fee. substantially owned or controlled by (b) Within 16 days after final payment
(d) The rates of interest applicable to another business entity, against such of benefits has been made by an
paragraphs (a), (b), and (c) of this parent entity, any member of such joint employer, such employer shall so notify
section shall be computed as follows: venture, or such controlling business the district director, in accordance with
(1) For all amounts outstanding prior entity; or a form prescribed by the Office, stating
to January 1, 1982, the rate shall be 6% (e) Against any other person who has that such final payment, has been made,
simple annual interest; assumed or succeeded to the obligations the total amount of benefits paid, the
(2) For all amounts outstanding for of the operator or insurer by operation name of the beneficiary, and such other
any period during calendar year 1982, of any state or federal law, or by any information as the Office deems
the rate shall be 15% simple annual other means. pertinent.
interest; and (c) The Director may from time to
(3) For all amounts outstanding § 725.620 Failure to secure benefits; other time prescribe such additional reports to
during any period after calendar year penalties. be made by operators, other employers,
1982, the rate shall be simple annual (a) If an operator fails to discharge its or carriers as the Director may consider
interest at the rate established by section insurance obligations under the Act, the necessary for the efficient
6621 of the Internal Revenue Code (26 provisions of subpart D of part 726 of administration of the Act.
U.S.C.) which is in effect for such this subchapter shall apply. (d) Any employer who fails or refuses
period. (b) Any employer who knowingly to file any report required of such
(e) The fund shall not be liable for the transfers, sells, encumbers, assigns, or in employer under this section shall be
payment of interest under any any manner disposes of, conceals, subject to a civil penalty not to exceed
circumstances, other than the payment secrets, or destroys any property $500 for each failure or refusal, which
of interest on advances from the United belonging to such employer, after one of penalty shall be determined in
States Treasury as provided by section its employees has been injured within accordance with the procedures set
9501(c) of the Internal Revenue Code the purview of the Act, and with intent forth in subpart D of part 726 of this
(26 U.S.C.). to avoid the payment of benefits under subchapter, as appropriate. The
the Act to such miner or his or her maximum penalty applicable to any
§ 725.609 Enforcement against other dependents, shall be guilty of a violation of this paragraph that takes
persons. misdemeanor and, upon conviction place after January 19, 2001 shall be
In any case in which an award of thereof, shall be punished by a fine of $550.
benefits creates obligations on the part not more than $1,000, or by (e) No request for information or
of an operator or insurer that may be imprisonment for not more than one response to such request shall be
enforced under the provisions of this year, or by both. In any case where such considered a report for purposes of this
subpart, such obligations may also be employer is a corporation, the president, section or the Act, unless it is so
enforced, in the discretion of the secretary, and treasurer thereof shall be designated by the Director or by this
Secretary or district director, as follows: also severally liable for such penalty or section.
(a) In a case in which the operator is imprisonment as well as jointly liable
a sole proprietorship or partnership, with such corporation for such fine. Subpart J—Medical Benefits and
against any person who owned, or was (c) No agreement by a miner to pay Vocational Rehabilitation
a partner in, such operator during any any portion of a premium paid to a
period commencing on or after the date carrier by such miner’s employer or to § 725.701 Availability of medical benefits.
on which the miner was last employed contribute to a benefit fund or (a) A miner who is determined to be
by the operator; department maintained by such eligible for benefits under this part or
(b) In a case in which the operator is employer for the purpose of providing part 727 of this subchapter (see
a corporation that failed to secure its benefits or medical services and § 725.4(d)) is entitled to medical
liability for benefits in accordance with supplies as required by this part shall be benefits as set forth in this subpart as of
section 423 of the Act and § 726.4, and valid; and any employer who makes a the date of his or her claim, but in no
the operator has not secured its liability deduction for such purpose from the event before January 1, 1974. No
for the claim in accordance with pay of a miner entitled to benefits under medical benefits shall be provided to
§ 725.606, against any person who the Act shall be guilty of a misdemeanor the survivor or dependent of a miner
served as the president, secretary, or and upon conviction thereof shall be under this part.
treasurer of such corporation during any punished by a fine of not more than (b) A responsible operator, other
period commencing on or after the date $1,000. employer, or where there is neither, the
on which the miner was last employed (d) No agreement by a miner to waive fund, shall furnish a miner entitled to
by the operator; his or her right to benefits under the Act benefits under this part with such
medical, surgical, and other attendance and payment of claims filed under consequences as are provided under
and treatment, nursing and hospital section 11. § 725.414.
services, medicine and apparatus, and (b)(1) A claim filed pursuant to the (h) If a miner is determined eligible
any other medical service or supply, for notice described in paragraph (a) of this for medical benefits in accordance with
such periods as the nature of the miner’s section shall be considered a claim for this section, such benefits shall be
pneumoconiosis and disability requires. medical benefits only, and shall be filed, provided from the date of filing, except
(c) The medical benefits referred to in processed, and adjudicated in that such benefits may also include
paragraphs (a) and (b) of this section accordance with the provisions of this payments for any unreimbursed medical
shall include palliative measures useful part, except as provided in this section. treatment costs incurred personally by
only to prevent pain or discomfort While a claim for medical benefits must such miner during the period from
associated with the miner’s be treated as any other claim filed under January 1, 1974, to the date of filing
pneumoconiosis or attendant disability. part C of title IV of the Act, the which are attributable to medical care
(d) The costs recoverable under this Department shall accept the Social required as a result of the miner’s total
subpart shall include the reasonable Security Administration’s finding of disability due to pneumoconiosis. No
cost of travel necessary for medical entitlement as its initial determination. reimbursement for health insurance
treatment (to be determined in (2) In the case of a part B beneficiary
premiums, taxes attributable to any
accordance with prevailing United whose coal mine employment
public health insurance coverage, or
States government mileage rates) and terminated before January 1, 1970, the
other deduction or payments made for
the reasonable documented cost to the Secretary shall make an immediate
the purpose of securing third party
miner or medical provider incurred in award of medical benefits. Where the
liability for medical care costs is
communicating with the employer, part B beneficiary’s coal mine
authorized by this section. If a miner
carrier, or district director on matters employment terminated on or after
seeks reimbursement for medical care
connected with medical benefits. January 1, 1970, the Secretary shall
costs personally incurred before the
(e) If a miner receives a medical immediately authorize the payment of
medical benefits and thereafter inform filing of a claim under this section, the
service or supply, as described in this
the responsible operator, if any, of the district director shall require
section, for any pulmonary disorder,
operator’s right to contest the claimant’s documented proof of the nature of the
there shall be a rebuttable presumption
entitlement for medical benefits. medical service provided, the identity of
that the disorder is caused or aggravated
(c) A miner on whose behalf a claim the medical provider, the cost of the
by the miner’s pneumoconiosis. The
is filed under this section (see service, and the fact that the cost was
party liable for the payment of benefits
§ 725.301) must have been alive on paid by the miner, before
may rebut the presumption by
March 1, 1978, in order for the claim to reimbursement for such cost may be
producing credible evidence that the
be considered. awarded.
medical service or supply provided was
for a pulmonary disorder apart from (d) The criteria contained in subpart § 725.703 Physician defined.
those previously associated with the C of part 727 of this subchapter (see
§ 725.4(d)) are applicable to claims for The term ‘‘physician’’ includes only
miner’s disability, or was beyond that
medical benefits filed under this doctors of medicine (MD) and
necessary to effectively treat a covered
section. osteopathic practitioners within the
disorder, or was not for a pulmonary
(e) No determination made with scope of their practices as defined by
disorder at all.
(f) Evidence that the miner does not respect to a claim filed under this State law. No treatment or medical
have pneumoconiosis or is not totally section shall affect any determination services performed by any other
disabled by pneumoconiosis arising out previously made by the Social Security practitioner of the healing arts is
of coal mine employment is insufficient Administration. The Social Security authorized by this part, unless such
to defeat a request for coverage of any Administration may, however, reopen a treatment or service is authorized and
medical service or supply under this previously approved claim if the supervised both by a physician as
subpart. In determining whether the conditions set forth in § 410.672(c) of defined in this section and the district
treatment is compensable, the opinion this chapter are present. These director.
of the miner’s treating physician may be conditions are generally limited to fraud § 725.704 Notification of right to medical
entitled to controlling weight pursuant or concealment. benefits; authorization of treatment.
to § 718.104(d). A finding that a medical (f) If medical benefits are awarded
under this section, such benefits shall (a) Upon notification to a miner of
service or supply is not covered under such miner’s entitlement to benefits, the
this subpart shall not otherwise affect be payable by a responsible coal mine
operator (see subpart G of this part), if Office shall provide the miner with a
the miner’s entitlement to benefits. list of authorized treating physicians
the miner’s last employment occurred
§ 725.702 Claims for medical benefits only on or after January 1, 1970, and in all and medical facilities in the area of the
under section 11 of the Reform Act. other cases by the fund. An operator miner’s residence. The miner may select
(a) Section 11 of the Reform Act which may be required to provide a physician from this list or may select
directs the Secretary of Health, medical treatment benefits to a miner another physician with approval of the
Education and Welfare to notify each under this section shall have the right Office. Where emergency services are
miner receiving benefits under part B of to participate in the adjudication of the necessary and appropriate,
title IV of the Act that he or she may file claim as is otherwise provided in this authorization by the Office shall not be
a claim for medical treatment benefits part. required.
described in this subpart. Section (g) Any miner whose coal mine (b) The Office may, on its own
725.308(b) provides that a claim for employment terminated after January 1, initiative, or at the request of a
medical treatment benefits shall be filed 1970, may be required to submit to a responsible operator, order a change of
on or before December 31, 1980, unless medical examination requested by an physicians or facilities, but only where
the period is enlarged for good cause identified operator. The unreasonable it has been determined that the change
shown. This section sets forth the rules refusal to submit to such an is desirable or necessary in the best
governing the processing, adjudication, examination shall have the same interest of the miner. The miner may
change physicians or facilities subject to if a written response cannot be given (c) In the development or adjudication
the approval of the Office. within 7 days following the request. No of a dispute over medical benefits, the
(c) If adequate treatment cannot be employee of the Department of Labor, adjudication officer is authorized to take
obtained in the area of the claimant’s other than a district director or the whatever action may be necessary to
residence, the Office may authorize the Chief, Branch of Medical Analysis and protect the health of a totally disabled
use of physicians or medical facilities Services, DCMWC, is authorized to miner.
outside such area as well as approve a request for hospitalization or (d) Any interested medical provider
reimbursement for travel expenses and surgery by telephone. may, if appropriate, be made a party to
overnight accommodations. (c) Payment for medical services, a dispute over medical benefits.
§ 725.705 Arrangements for medical care.
treatment, or an apparatus shall be made
§ 725.710 Objective of vocational
at no more than the rate prevailing in rehabilitation.
(a) Operator liability. If an operator the community in which the providing
has been determined liable for the physician, medical facility or supplier is The objective of vocational
payment of benefits to a miner, the located. rehabilitation is the return of a miner
Office shall notify such operator or who is totally disabled for work in or
insurer of the names, addresses, and § 725.707 Reports of physicians and around a coal mine and who is unable
telephone numbers of the authorized supervision of medical care. to utilize those skills which were
providers of medical benefits chosen by (a) Within 30 days following the first employed in the miner’s coal mine
an entitled miner, and shall require the medical or surgical treatment provided employment to gainful employment
operator or insurer to: under § 725.701, the treating physician commensurate with such miner’s
(1) Notify the miner and the providers or facility shall furnish to the Office and physical impairment. This objective
chosen that such operator will be the responsible operator, if any, a report may be achieved through a program of
responsible for the cost of medical of such treatment. re-evaluation and redirection of the
services provided to the miner on miner’s abilities, or retraining in another
(b) In order to permit continuing
account of the miner’s total disability occupation, and selective job placement
supervision of the medical care
due to pneumoconiosis; assistance.
provided to the miner with respect to
(2) Designate a person or persons with
the necessity, character and sufficiency § 725.711 Requests for referral to
decisionmaking authority with whom
of any medical care furnished or to be vocational rehabilitation assistance.
the Office, the miner and authorized
furnished, the treating physician, Each miner who has been determined
providers may communicate on matters
facility, employer or carrier shall entitled to receive benefits under part C
involving medical benefits provided
provide such reports in addition to of title IV of the Act shall be informed
under this subpart and notify the Office,
those required by paragraph (a) of this by the OWCP of the availability and
miner and providers of such
section as the Office may from time to advisability of vocational rehabilitation
designation;
(3) Make arrangements for the direct time require. Within the discretion of services. If such miner chooses to avail
reimbursement of providers for their the district director, payment may be himself or herself of vocational
services. refused to any medical provider who rehabilitation, his or her request shall be
(b) Fund liability. If there is no fails to submit any report required by processed and referred by OWCP
operator found liable for the payment of this section. vocational rehabilitation advisors
benefits, the Office shall make necessary § 725.708 Disputes concerning medical pursuant to the provisions of §§ 702.501
arrangements to provide medical care to benefits. through 702.508 of this chapter as is
the miner, notify the miner and medical appropriate.
(a) Whenever a dispute develops
care facility selected of the liability of 5. Part 726 is revised as follows:
concerning medical services under this
the fund, designate a person or persons
part, the district director shall attempt
with whom the miner or provider may PART 726—BLACK LUNG BENEFITS;
to informally resolve such dispute. In
communicate on matters relating to REQUIREMENTS FOR COAL MINE
this regard the district director may, on
medical care, and make arrangements OPERATOR’S INSURANCE
his or her own initiative or at the
for the direct reimbursement of the
request of the responsible operator order Subpart A—General
medical provider.
the claimant to submit to an Sec.
§ 725.706 Authorization to provide medical examination by a physician selected by 726.1 Statutory insurance requirements for
services. the district director. coal mine operators.
(a) Except as provided in paragraph (b) If no informal resolution is 726.2 Purpose and scope of this part.
(b) of this section, medical services from accomplished, the district director shall 726.3 Relationship of this part to other parts
an authorized provider which are refer the case to the Office of in this subchapter.
Administrative Law Judges for hearing 726.4 Who must obtain insurance coverage.
payable under § 725.701 shall not
726.5 Effective date of insurance coverage.
require prior approval of the Office or in accordance with this part. Any such 726.6 The Office of Workers’ Compensation
the responsible operator. hearing shall be scheduled at the Programs.
(b) Except where emergency treatment earliest possible time and shall take 726.7 Forms, submission of information.
is required, prior approval of the Office precedence over all other requests for 726.8 Definitions.
or the responsible operator shall be hearing except for prior requests for
Subpart B—Authorization of Self-Insurers
obtained before any hospitalization or hearing arising under this section and as
surgery, or before ordering an apparatus provided by § 727.405 of this subchapter 726.101 Who may be authorized to self-
for treatment where the purchase price (see § 725.4(d)). During the pendency of insure.
726.102 Application for authority to
exceeds $300. A request for approval of such adjudication, the Director may become a self-insurer; how filed;
non-emergency hospitalization or order the payment of medical benefits information to be submitted.
surgery shall be acted upon prior to final adjudication under the 726.103 Application for authority to self-
expeditiously, and approval or same conditions applicable to benefits insure; effect of regulations contained in
disapproval will be given by telephone awarded under § 725.522. this part.
726.104 Action by the Office upon Authority: 5 U.S.C. 301, Reorganization (b) If the provisions of this part appear
application of operator. Plan No. 6 of 1950, 15 FR 3174, 30 U.S.C. 901 to conflict with any provision of any
726.105 Fixing the amount of security. et seq., 902(f), 925, 932, 933, 934, 936, 945; other part in this subchapter, the
726.106 Type of security. 33 U.S.C. 901 et seq., Secretary’s Order 7–87, apparently conflicting provisions
726.107 Deposits of negotiable securities 52 FR 48466, Employment Standards Order
with Federal Reserve banks or the No. 90–02.
should be read harmoniously to the
Treasurer of the United States; authority fullest extent possible. If a harmonious
to sell such securities; interest thereon. Subpart A—General interpretation is not possible, the
726.108 Withdrawal of negotiable provisions of this part should be applied
securities. § 726.1 Statutory insurance requirements to govern the responsibilities and
726.109 Increase or reduction in the for coal mine operators. obligations of coal mine operators to
amount of security. Section 423 of title IV of the Federal secure the payment of black lung
726.110 Filing of agreement and Coal Mine Health and Safety Act as benefits as prescribed by the Act. The
undertaking.
726.111 Notice of authorization to self-
amended (hereinafter the Act) requires provisions of this part do not apply to
insure. each coal mine operator who is matters falling outside the scope of this
726.112 Reports required of self-insurer; operating or has operated a coal mine in part.
examination of accounts of self-insurer. a State which is not included in the list
§ 726.4 Who must obtain insurance
726.113 Disclosure of confidential published by the Secretary (see part 722
coverage.
information. of this subchapter) to secure the
726.114 Period of authorization as self- payment of benefits for which he may (a) Section 423 of part C of title IV of
insurer; reauthorization. be found liable under section 422 of the the Act requires each operator of a coal
726.115 Revocation of authorization to self-
Act and the provisions of this mine or former operator in any State
insure. which does meet the requirements
subchapter by either:
Subpart C—Insurance Contracts (a) Qualifying as a self-insurer, or prescribed by the Secretary pursuant to
(b) By subscribing to and maintaining section 411 of part C of title IV of the
726.201 Insurance contracts—generally.
726.202 Who may underwrite an operator’s in force a commercial insurance Act to self-insure or obtain a policy or
liability. contract (including a policy or contract contract of insurance to guarantee the
726.203 Federal Coal Mine Health and procured from a State agency). payment of benefits for which such
Safety Act endorsement. operator may be adjudicated liable
726.204 Statutory policy provisions. § 726.2 Purpose and scope of this part. under section 422 of the Act. In enacting
726.205 Other forms of endorsement and (a) This part provides rules directing sections 422 and 423 of the Act
policies. Congress has unambiguously expressed
726.206 Terms of policies.
and controlling the circumstances under
which a coal mine operator shall fulfill its intent that coal mine operators bear
726.207 Discharge by the carrier of
his insurance obligations under the Act. the cost of providing the benefits
obligations and duties of operator.
(b) This Subpart A sets forth the scope established by part C of title IV of the
Reports by Carrier Act. Section 3 of the Act defines an
and purpose of this part and generally
726.208 Report by carrier of issuance of describes the statutory framework ‘‘operator’’ as any owner, lessee, or
policy or endorsement. within which this part is operative. other person who operates, controls, or
726.209 Report; by whom sent. supervises a coal mine.
(c) Subpart B of this part sets forth the
726.210 Agreement to be bound by report. (b) Section 422(i) of the Act clearly
726.211 Name of one employer only shall criteria a coal mine operator must meet
in order to qualify as a self-insurer. recognizes that any individual or
be given in each report. business entity who is or was a coal
726.212 Notice of cancellation. (d) Subpart C of this part sets forth the
726.213 Reports by carriers concerning the rules and regulations of the Secretary mine operator may be found liable for
payment of benefits. governing contracts of insurance entered the payment of pneumoconiosis benefits
into by coal mine operators and after December 31, 1973. Within this
Subpart D—Civil Money Penalties framework it is clear that the Secretary
commercial insurance sources for the
726.300 Purpose and scope. has wide latitude for determining which
726.301 Definitions.
payment of black lung benefits under
part C of the Act. operator shall be liable for the payment
726.302 Determination of penalty. of part C benefits. Comprehensive
726.303 Notification; investigation. (e) Subpart D of this part sets forth the
726.304 Notice of initial assessment. rules governing the imposition of civil standards have been promulgated in
726.305 Contents of notice. money penalties on coal mine operators subpart G of part 725 of this subchapter
726.306 Finality of administrative that fail to secure their liability under for the purpose of guiding the Secretary
assessment. the Act. in making such determination. It must
726.307 Form of notice of contest and be noted that pursuant to these
request for hearing. § 726.3 Relationship of this part to other standards any parent or subsidiary
726.308 Service and computation of time. parts in this subchapter. corporation, any individual or corporate
726.309 Referral to the Office of (a) This part 726 implements and partner, or partnership, any lessee or
Administrative Law Judges.
726.310 Appointment of Administrative
effectuates responsibilities for the lessor of a coal mine, any joint venture
Law Judge and notification of hearing payment of black lung benefits placed or participant in a joint venture, any
date. upon coal mine operators by sections transferee or transferor of a corporation
726.311 Evidence. 415 and 422 of the Act and the or other business entity, any former,
726.312 Burdens of proof. regulations of the Secretary in this current, or future operator or any other
726.313 Decision and Order of subchapter, particularly those set forth form of business entity which has had
Administrative Law Judge. in part 725 of this subchapter. All or will have a substantial and
726.314 Review by the Secretary. definitions, usages, procedures, and reasonably direct interest in the
726.315 Contents.
726.316 Filing and service.
other rules affecting the responsibilities operation of a coal mine may be
726.317 Discretionary review. of coal mine operators prescribed in part determined liable for the payment of
726.318 Final decision of the Secretary. 725 of this subchapter are hereby made pneumoconiosis benefits after December
726.319 Retention of official record. applicable, as appropriate, to this part 31, 1973. The failure of any such
726.320 Collection and recovery of penalty. 726. business entity to self-insure or obtain a
policy or contract of insurance shall in commercial insurance programs. All Subpart B—Authorization of Self-
no way relieve such business entity of correspondence with or submissions to Insurers
its obligation to pay pneumoconiosis the Office should be addressed as
benefits in respect of any case in which follows: § 726.101 Who may be authorized to self-
such business entity’s responsibility for insure.
Division of Coal Mine Workers’
such payments has been properly Compensation, Office of Workers’
(a) Pursuant to section 423 of part C
adjudicated. Any business entity Compensation Programs, Employment of title IV of the Act, authorization to
described in this section shall take Standards Administration, U.S. self-insure against liability incurred by
appropriate steps to insure that any Department of Labor, Washington, D.C. coal mine operators on account of the
liability imposed by part C of the Act on 20210 total disability or death of miners due to
such business entity shall be pneumoconiosis may be granted or
§ 726.7 Forms, submission of information. denied in the discretion of the
dischargeable.
Any information required by this part Secretary. The provisions of this subpart
§ 726.5 Effective date of insurance 726 to be submitted to the Office of describe the minimum requirements
coverage. Workmen’s Compensation Programs or established by the Secretary for
Pursuant to section 422(c) of part C of any other office or official of the determining whether any particular coal
title IV of the Act, no coal mine operator Department of Labor, shall be submitted mine operator shall be authorized as a
shall be responsible for the payment of on such forms or in such manner as the self-insurer.
any benefits whatsoever for any period Secretary deems appropriate and has (b) The minimum requirements which
prior to January 1, 1974. However, coal authorized from time to time for such must be met by any operator seeking
mine operators shall be liable as of purposes. authorization to self-insure are as
January 1, 1974, for the payment of follows:
§ 726.8 Definitions.
benefits in respect of claims which were (1) The operator must, at the time of
filed under section 415 of part B of title In addition to the definitions application, have been in the business
IV of the Act after July 1, 1973. Section provided in part 725 of this subchapter, of mining coal for at least the 3
415(a)(3) requires the Secretary to notify the following definitions apply to this consecutive years prior to such
any operator who may be liable for the part: application; and,
payment of benefits under part C of title (a) Director means the Director, Office (2) The operator must demonstrate the
IV beginning on January 1, 1974, of the of Workers’ Compensation Programs, administrative capacity to fully service
pendency of a section 415 claim. and includes any official of the Office of such claims as may be filed against him;
Section 415(a)(5) declares that any Workers’ Compensation Programs and,
operator who has been notified of the authorized by the Director to perform (3) The operator’s average current
pendency of a section 415 claim shall be any of the functions of the Director assets over the preceding 3 years (in
bound by the determination of the under this part and part 725 of this computing average current assets such
Secretary as to such operator’s liability subchapter. operator shall not include the amount of
and as to the claimant’s entitlement to (b) Person includes any individual, any negotiable securities which he may
benefits as if the claim were filed under partnership, corporation, association, be required to deposit to secure his
part C of title IV of the Act and section business trust, legal representative, or obligations under the Act) must exceed
422 thereof had been applicable to such organized group of persons. current liabilities by the sum of—
operator. Therefore, even though no (c) Secretary means the Secretary of (i) The estimated aggregate amount of
benefit payments shall be required of an Labor or such other official as the black lung benefits (including medical
operator prior to January 1, 1974, the Secretary shall designate to carry out benefits) which such operator may
liability for these payments may be any responsibility under this part. expect to be required to pay during the
finally adjudicated at any time after July (d) The terms employ and
ensuing year; and,
1, 1973. Neither the failure of an employment shall be construed as
(ii) The annual premium cost for any
operator to exercise his right to broadly as possible, and shall include
indemnity bond purchased; and
participate in the adjudication of such a any relationship under which an (4) Such operator must obtain
claim nor the failure of an operator to operator retains the right to direct, security, in a form approved by the
obtain insurance coverage in respect of control, or supervise the work Office (see § 726.104) and in an amount
claims filed after June 30, 1973, but performed by a miner, or any other to be determined by the Office (see
before January 1, 1974, shall excuse relationship under which an operator § 726.105); and
such operator from his liability for the derives a benefit from the work (5) No operator with fewer than 5 full-
payment of benefits to such claimants performed by a miner. Any individuals time employee-miners shall be
under part C of title IV of the Act. who participate with one or more permitted to self-insure.
persons in the mining of coal, such as (c) No operator who is unable to meet
§ 726.6 The Office of Workers’ owners, proprietors, partners, and joint the requirements of this section should
Compensation Programs. venturers, whether they are apply for authorization to self-insure
The Office of Workers’ Compensation compensated by wages, salaries, piece and no application for self-insurance
Programs (hereinafter the Office or rates, shares, profits, or by any other shall be approved by the Office until
OWCP) is that subdivision of the means, shall be deemed employees. It is such time as the amount prescribed by
Employment Standards Administration the specific intention of this paragraph the Office has been secured in
of the U.S. Department of Labor which to disregard any financial arrangement accordance with this subpart.
has been empowered by the Secretary of or business entity devised by the actual
Labor to carry out his functions under owners or operators of a coal mine or § 726.102 Application for authority to
section 415 and part C of title IV of the coal mine-related enterprise to avoid the become a self-insurer; how filed;
Act. As noted throughout this part 726 payment of benefits to miners who, information to be submitted.
the Office shall perform a number of based upon the economic reality of their (a) How filed. Application for
functions with respect to the regulation relationship to this enterprise, are, in authority to become a self-insurer shall
of both the self-insurance and fact, employees of the enterprise. be addressed to the Office and be made
on a form provided by the Office. Such § 726.103 Application for authority to self- reduction in the amount of security
application shall be signed by the insure; effect of regulations contained in initially required is warranted.
applicant over his typewritten name and this part.
§ 726.105 Fixing the amount of security.
if the applicant is not an individual, by As appropriate, each of the
the principal officer of the applicant regulations, interpretations and The Office shall require the amount of
requirements contained in this part 726 security which it deems necessary and
duly authorized to make such
including those described in subpart C sufficient to secure the performance by
application over his typewritten name
of this part shall be binding upon each the applicant of all obligations imposed
and official designation and shall be upon him as an operator by the Act. In
sworn to by him. If the applicant is a applicant under this subpart, and the
applicant’s consent to be bound by all determining the amount of security
corporation, the corporate seal shall be required, the factors that the Office will
affixed. The application shall be filed requirements of the said regulations
shall be deemed to be included in and consider include, but are not limited to,
with the Office in Washington, D.C. the operator’s net worth, the existence
a part of the application, as fully as
(b) Information to be submitted. Each though written therein. of a guarantee by a parent corporation,
application for authority to self-insure and the operator’s existing liability for
shall contain: § 726.104 Action by the Office upon benefits. The Office shall also consider
application of operator. such other factors as it considers
(1) A statement of the employer’s
(a) Upon receipt of a completed relevant to any particular case. The
payroll report for each of the preceding
application for authorization to self- amount of security which shall be
3 years; required may be increased or decreased
insure, the Office shall, after
(2) A statement of the average number examination of the information when experience or changed conditions
of employees engaged in employment contained in the application, either so warrant.
within the purview of the Act for each deny the request or determine the § 726.106 Type of security.
of the preceding 3 years; amount of security which must be given
(a) The Office shall determine the
(3) A list of the mine or mines to be by the applicant to guarantee the
type or types of security which an
covered by any particular self-insurance payment of benefits and the discharge of
applicant shall or may procure. (See
agreement. Each such mine or mines all other obligations which may be
§ 726.104(b).)
listed shall be described by name and required of such applicant under the (b) In the event the indemnity bond
reference shall be made to the Federal Act. option is selected, the bond shall be in
Identification Number assigned such (b) The applicant shall thereafter be such form and contain such provisions
mine by the Bureau of Mines, U.S. notified that he may give security in the as the Office may prescribe: Provided,
Department of the Interior; amount fixed by the Office (see That only corporations may act as
§ 726.105): sureties on such indemnity bonds. In
(4) A certified itemized statement of
(1) In the form of an indemnity bond each case in which the surety on any
the gross and net assets and liabilities of
with sureties satisfactory to the Office; such bond is a surety company, such
the operator for each of the 3 preceding
(2) By a deposit of negotiable company must be one approved by the
years in such manner as prescribed by
securities with a Federal Reserve Bank U.S. Treasury Department under the
the Office;
in compliance with §§ 726.106(c) and laws of the United States and the
(5) A statement demonstrating the 726.107; applicable rules and regulations
applicant’s administrative capacity to (3) In the form of a letter of credit governing bonding companies (see
provide or procure adequate servicing issued by a financial institution Department of Treasury’s Circular—
for a claim including both medical and satisfactory to the Office (except that a 570).
dollar claims; and letter of credit shall not be sufficient by (c) An applicant for authorization to
(6) In addition to the aforementioned, itself to satisfy a self-insurer’s self-insure based on a deposit of
the Office may in its discretion, require obligations under this part); or negotiable securities, in the amount
the applicant to submit such further (4) By funding a trust pursuant to fixed by the Office, shall deposit any
section 501(c)(21) of the Internal negotiable securities acceptable as
information or such evidence as the
Revenue Code (26 U.S.C.). security for the deposit of public
Office may deem necessary to have in
(c) Any applicant who cannot meet moneys of the United States under
order to enable it to give adequate regulations issued by the Secretary of
consideration to such application. the security deposit requirements
imposed by the Office should proceed to the Treasury. (See 31 CFR Part 225.) The
(c) Who may file. An application for obtain a commercial policy or contract approval, valuation, acceptance, and
authorization to self-insure may be filed of insurance. Any applicant for custody of such securities is hereby
by any parent or subsidiary corporation, authorization to self-insure whose committed to the several Federal
partner or partnership, party to a joint application has been rejected or who Reserve Banks and the Treasurer of the
venture or joint venture, individual, or believes that the security deposit United States.
other business entity which may be requirements imposed by the Office are § 726.107 Deposits of negotiable securities
determined liable for the payment of excessive may, in writing, request that with Federal Reserve banks or the
black lung benefits under part C of title the Office review its determination. A Treasurer of the United States; authority to
IV of the Act, regardless of whether such request for review should contain such sell such securities; interest thereon.
applicant is directly engaged in the information as may be necessary to Deposits of securities provided for by
business of mining coal. However, in support the request that the amount of the regulations in this part shall be
each case for which authorization to security required be reduced. made with any Federal Reserve bank or
self-insure is granted, the agreement and (d) Upon receipt of any such request, any branch of a Federal Reserve bank
undertaking filed pursuant to § 726.110 the Office shall review its previous designated by the Office, or the
and the security deposit shall be determination in light of any new or Treasurer of the United States, and shall
respectively filed by and deposited in additional information submitted and be held subject to the order of the Office
the name of the applicant only. inform the applicant whether or not a with power in the Office, in its
discretion in the event of default by the coal mine employment within the and other papers of a self-insurer for the
said self-insurer, to collect the interest purview of the Act, his financial purpose of verifying any financial
as it may become due, to sell the condition, and such other evidence as statement submitted to the Office by the
securities or any of them as may be may be deemed material, including a self-insurer or verifying any information
required to discharge the obligations of record of benefit payments he has made. furnished to the Office in any report
the self-insurer under the Act and to required by this section, or any other
§ 726.110 Filing of agreement and
apply the proceeds to the payment of undertaking.
section of the regulations in this part,
any benefits or medical expenses for and such self-insurer shall permit the
which the self-insurer may be liable. (a) In addition to the requirement that Office or its duly authorized
adequate security be procured as set
The Office may, however, whenever it representative to make such an
forth in this subpart, the applicant for
deems it unnecessary to resort to such inspection or examination as the Office
the authorization to self-insure shall, as
securities for the payment of benefits, shall require. In lieu of this requirement
a condition precedent to receiving such
authorize the self-insurer to collect the Office may in its discretion accept
authorization, execute and file with the
interest on the securities deposited by an adequate report of a certified public
Office an agreement and undertaking in
him. accountant.
a form prescribed and provided by the
§ 726.108 Withdrawal of negotiable Office in which the applicant shall (c) Failure to submit or make available
securities. agree: any report or information requested by
(1) To pay when due, as required by the Office from an authorized self-
No withdrawal of negotiable
the Act, all benefits payable on account insurer pursuant to this section may, in
securities deposited by a self-insurer,
of total disability or death of any of its appropriate circumstances result in a
shall be made except upon
employee-miners; revocation of the authorization to self-
authorization by the Office. A self-
(2) To furnish medical, surgical, insure.
insurer discontinuing business, or
discontinuing operations within the hospital, and other attendance,
§ 726.113 Disclosure of confidential
purview of the Act, or providing treatment, and care as required by the information.
security for the payment of benefits by Act;
(3) To provide security in a form Any financial information or records,
commercial insurance under the
approved by the Office (see § 726.104) or other information relating to the
provisions of the Act may apply to the
and in an amount established by the business of an authorized self-insurer or
Office for the withdrawal of securities
Office (see § 726.105), as elected in the applicant for the authorization of self-
deposited under the regulations in this
application; insurance obtained by the Office shall
part. With such application shall be
(4) To authorize the Office to sell any be exempt from public disclosure to the
filed a sworn statement setting forth:
negotiable securities so deposited or any extent provided in 5 U.S.C. 552(b) and
(a) A list of all outstanding cases in
part thereof, and to pay from the the applicable regulations of the
which benefits are being paid, with the
proceeds thereof such benefits, medical, Department of Labor promulgated
names of the miners and other
and other expenses and any accrued thereunder. (See 29 CFR part 70.)
beneficiaries, giving a statement of the
amounts of benefits paid and the penalties imposed by law as the Office
§ 726.114 Period of authorization as self-
periods for which such benefits have may find to be due and payable. insurer; reauthorization.
(b) When an applicant has provided
been paid; and (a) No initial authorization to self-
the requisite security, he shall send to
(b) A similar list of all pending cases
the Office in Washington, D.C. a insure shall be granted for a period in
in which no benefits have as yet been
completed agreement and undertaking, excess of 18 months. A self-insurer who
paid. In such cases withdrawals may be
together with satisfactory proof that his has made an adequate deposit of
authorized by the Office of such
obligations and liabilities under the Act negotiable securities in compliance with
securities as in the opinion of the Office
have been secured. §§ 726.106(c) and 726.107 will be
may not be necessary to provide
reauthorized for the ensuing fiscal year
adequate security for the payment of § 726.111 Notice of authorization to self- without additional security if the Office
outstanding and potential liabilities of insure.
finds that his experience as a self-
such self-insurer under the Act. Upon receipt of a completed insurer warrants such action. If the
agreement and undertaking and Office determines that such self-
§ 726.109 Increase or reduction in the
amount of security. satisfactory proof that adequate security insurer’s experience indicates a need for
has been provided, an applicant for the deposit of additional security, no
Whenever in the opinion of the Office
authorization to self-insure shall be reauthorization shall be issued for the
the amount of security given by the self-
notified by the Office in writing that he ensuing fiscal year until the Office
insurer is insufficient to afford adequate
is authorized to self-insure to meet the receives satisfactory proof that the
security for the payment of benefits and
obligations imposed upon him by requisite amount of additional securities
medical expenses under the Act, the
section 415 and part C of title IV of the has been deposited. A self-insurer who
self-insurer shall, upon demand by the
Act. currently has on file an indemnity bond
Office, file such additional security as
the Office may require. The Office may § 726.112 Reports required of self-insurer; will receive from the Office each year a
reduce the amount of security at any examination of accounts of self-insurer. bond form for execution in
time on its own initiative, or upon the (a) Each operator who has been contemplation of reauthorization, and
application of a self-insurer, when it authorized to self-insure under this part the submission of such bond duly
believes the facts warrant a reduction. A shall submit to the Office reports executed in the amount indicated by the
self-insurer seeking a reduction shall containing such information as the Office will be deemed and treated as
furnish such information as the Office Office may from time to time require or such self-insurer’s application for
may request relative to his current prescribe. reauthorization for the ensuing fiscal
affairs, the nature and hazard of the (b) Whenever it deems it to be year.
work of his employees, the amount of necessary, the Office may inspect or (b) In each case for which there is an
the payroll of his employees engaged in examine the books of account, records, approved change in the amount of
security provided, a new agreement and State to insure workmen’s purpose of insuring any liability
undertaking shall be executed. compensation. incurred pursuant to the Act:
(c) Each operator authorized to self- (1) Operator liability. (i) Section 415
§ 726.203 Federal Coal Mine Health and and part C of title IV of the Act provide
insure under this part shall apply for Safety Act endorsement.
reauthorization for any period during coverage for total disability or death due
(a) The following form of to pneumoconiosis to all claimants who
which it engages in the operation of a
endorsement shall be attached and meet the eligibility requirements
coal mine and for additional periods
applicable to the standard workmen’s imposed by the Act. Section 422 of the
after it ceases operating a coal mine.
compensation and employer’s liability Act and the regulations duly
Upon application by the operator,
policy prepared by the National Council promulgated thereunder (part 725 of
accompanied by proof that the security
on Compensation Insurance affording this subchapter) set forth the conditions
it has posted is sufficient to secure all
coverage under the Federal Coal Mine under which a coal mine operator may
benefits potentially payable to miners
Health and Safety Act of 1969, as be adjudicated liable for the payment of
formerly employed by the operator, the
amended: benefits to an eligible claimant for any
Office shall issue a certification that the
operator is exempt from the It is agreed that: (1) With respect to period subsequent to December 31,
requirements of this part based on its operations in a State designated in item 3 of 1973.
the declarations, the unqualified term (ii) Section 422(c) of the Act
prior operation of a coal mine. The ‘‘workmen’s compensation law’’ includes
provisions of subpart D of this part shall prescribes that except as provided in
part C of title IV of the Federal Coal Mine 422(i) (see paragraph (c)(2) of this
be applicable to any operator that fails Health and Safety Act of 1969, 30 U.S.C.
to apply for reauthorization in section 931–936, and any laws amendatory section) an operator may be adjudicated
accordance with the provisions of this thereto, or supplementary thereto, which liable for the payment of benefits in any
section. may be or become effective while this policy case if the total disability or death due
is in force, and definition (a) of Insuring to pneumoconiosis upon which the
§ 726.115 Revocation of authorization to Agreement III is amended accordingly; (2) claim is predicated arose at least in part
self-insure. with respect to such insurance as is afforded out of employment in a mine in any
by this endorsement, (a) the States, if any, period during which it was operated by
The Office may for good cause shown named below, shall be deemed to be
suspend or revoke the authorization of such operator. The Act does not require
designated in item 3 of the declaration; (b)
any self-insurer. Failure by a self-insurer Insuring Agreement IV(2) is amended to read that such employment which
to comply with any provision or ‘‘by disease caused or aggravated by exposure contributed to or caused the total
requirement of law or of the regulations of which the last day of the last exposure, in disability or death due to
in this part, or with any lawful order or the employment of the insured, to conditions pneumoconiosis occur subsequent to
communication of the Office, or the causing the disease occurs during the policy any particular date in time. The
period, or occurred prior to (effective date) Secretary in establishing a formula for
failure or insolvency of the surety on his
and claim based on such disease is first filed determining the operator liable for the
indemnity bond, or impairment of against the insured during the policy
financial responsibility of such self- payment of benefits (see subpart D of
period.’’
insurer, may be deemed good cause for part 725 of this subchapter) in respect
(b) The term ‘‘effective date’’ as used of any particular claim, must therefore,
such suspension or revocation.
in paragraph (a) of this section shall be within the framework and intent of title
Subpart C—Insurance Contracts construed to mean the effective date of IV of the Act find in appropriate cases
the first policy or contract of insurance that an operator is liable for the
§ 726.201 Insurance contracts—generally. procured by an operator for purposes of payment of benefits for some period
Each operator of a coal mine who has meeting the obligations imposed on after December 31, 1973, even though
not obtained authorization as a self- such operator by section 423 of part C the employment upon which an
insurer shall purchase a policy or enter of title IV of the Act. operator’s liability is based occurred
into a contract with a commercial (c) The Act contains a number of prior to July 1, 1973, or prior to the
insurance carrier or State agency. provisions and imposes a number of effective date of the Act or the effective
Pursuant to authority contained in requirements on operators which differ date of any amendments thereto, or
sections 422(a) and 423(b) and (c) of in varying degrees from traditional prior to the effective date of any policy
part C of title IV of the Act, this subpart workmen’s compensation concepts. To or contract of insurance obtained by
describes a number of provisions which avoid unnecessary administrative delays such operator. The endorsement
are required to be incorporated in a and expense which might be occasioned provisions contained in paragraph (a) of
policy or contract of insurance obtained by the drafting of an entirely new this section shall be construed to
by a coal mine operator for the purpose standard workmen’s compensation incorporate these requirements in any
of meeting the responsibility imposed policy specially tailored to the Act, the policy or contract of insurance obtained
upon such operator by the Act in Office has determined that the existing by an operator to meet the obligations
respect of the total disability or death of standard workmen’s compensation imposed on such operator by section
miners due to pneumoconiosis. policy subject to the endorsement 423 of the Act.
provisions contained in paragraph (a) of (2) Successor liability. Section 422(i)
§ 726.202 Who may underwrite an this section shall be acceptable for of part C of title IV of the Act requires
operator’s liability. purposes of writing commercial that a coal mine operator who after
Each coal mine operator who is not insurance coverage under the Act. December 30, 1969, acquired his mine
authorized to self-insure shall insure However, to avoid undue disputes over or substantially all of the assets thereof
and keep insured the payment of the meaning of certain policy provisions from a person who was an operator of
benefits as required by the Act with any and in accordance with the authority such mine on or after December 30,
stock company or mutual company or contained in section 423(b)(3) of the 1969, shall be liable for and shall secure
association, or with any other person, or Act, the Office has determined that the the payment of benefits which would
fund, including any State fund while following requirements shall be have been payable by the prior operator
such company, association, person, or applicable to all commercial insurance with respect to miners previously
fund is authorized under the law of any policies obtained by an operator for the employed in such mine if the
acquisition had not occurred and the (5) Compromise and waiver of duties and responsibilities as prescribed
prior operator had continued to operate benefits. Section 422(a) of part C of title in part C of title IV of the Act. In any
such mine. In the case of an operator IV of the Act by incorporating sections event, the failure of an operator to
who is determined liable for the 15(b) and 16 of the Longshoremen’s and obtain an adequate policy or contract of
payment of benefits under section 422(i) Harbor Workers’ Compensation Act (33 insurance shall not affect such
of the Act and part 725 of this U.S.C. 915(b) and 916) prohibits the operator’s liability for the payment of
subchapter, such liability shall accrue to compromise and/or waiver of claims for any benefits for which he is determined
such operator regardless of the fact that benefits filed or benefits payable under liable.
the miner on whose total disability or section 415 and part C of title IV of the
death the claim is predicated was never Act. The endorsement provisions § 726.206 Terms of policies.
employed by such operator in any contained in paragraph (a) of this A policy or contract of insurance shall
capacity. The endorsement provisions section shall be construed to incorporate be issued for the term of 1 year from the
contained in paragraph (a) of this these prohibitions in any policy or date that it becomes effective, but if
section shall be construed to incorporate contract of insurance obtained by an such insurance be not needed except for
this requirement in any policy or operator to meet the obligations a particular contract or operation, the
contract of insurance obtained by an imposed on such operator by section term of the policy may be limited to the
operator to meet the obligations 423 of the Act. period of such contract or operation.
imposed on such operator by section (6) Additional requirements. In
§ 726.207 Discharge by the carrier of
423 of the Act. addition to the requirements described obligations and duties of operator.
(3) Medical eligibility. Pursuant to in paragraph (c)(1) through (5) of this
section, the endorsement provisions Every obligation and duty in respect
section 422(h) of part C of title IV of the of payment of benefits, the providing of
Act and the regulations described contained in paragraph (a) of this
section shall, to the fullest extent medical and other treatment and care,
therein (see subpart D of part 410 of this the payment or furnishing of any other
title) benefits shall be paid to eligible possible, be construed to bring any
policy or contract of insurance entered benefit required by the Act and in
claimants on account of total disability respect of the carrying out of the
or death due to pneumoconiosis and in into by an operator for the purpose of
insuring such operator’s liability under administrative procedure required or
cases where the miner on whose death imposed by the Act or the regulations in
a claim is predicated was totally part C of title IV of the Act into
conformity with the legal requirements this part or part 725 of this subchapter
disabled by pneumoconiosis at the time upon an operator shall be discharged
of his death regardless of the cause of placed upon such operator by section
415 and part C of title IV of the Act and and carried out by the carrier as
such death. The endorsement provisions appropriate. Notice to or knowledge of
contained in paragraph (a) of this parts 720 and 725 of this subchapter.
(d) Nothing in this section shall an operator of the occurrence of total
section shall be construed to incorporate disability or death due to
these requirements in any policy or relieve any operator or carrier of the
duty to comply with any State pneumoconiosis shall be notice to or
contract of insurance obtained by an knowledge of such carrier. Jurisdiction
operator to meet the obligations workmen’s compensation law, except
insofar as such State law is in conflict of the operator by a district director,
imposed on such operator by section administrative law judge, the Office, or
423 of the Act. with the provisions of this section.
appropriate appellate authority under
(4) Payment of benefits, rates. Section § 726.204 Statutory policy provisions. the Act shall be jurisdiction of such
422(c) of the Act by incorporating carrier. Any requirement under any
Pursuant to section 423(b) of part C of
section 412(a) of the Act requires the benefits order, finding, or decision shall
title IV of the Act each policy or
payment of benefits at a rate equal to 50 be binding upon such carrier in the
contract of insurance obtained to
per centum of the minimum monthly same manner and to the same extent as
comply with the requirements of section
payment to which a Federal employee upon the operator.
423(a) of the Act must contain or shall
in grade GS–2, who is totally disabled
be construed to contain— Reports by Carrier
is entitled at the time of payment under (a) A provision to pay benefits
Chapter 81 of title 5, United States required under section 422 of the Act, § 726.208 Report by carrier of issuance of
Code. These benefits are augmented on notwithstanding the provisions of the policy or endorsement.
account of eligible dependents as State workmen’s compensation law Each carrier shall report to the Office
appropriate (see section 412(a) of part B which may provide for lesser payments; each policy and endorsement issued,
of title IV of the Act). Since the dollar and, canceled, or renewed by it to an
amount of benefits payable to any (b) A provision that insolvency or operator. The report shall be made in
beneficiary is required to be computed bankruptcy of the operator or discharge such manner and on such form as the
at the time of payment such amounts therein (or both) shall not relieve the Office may require.
may be expected to increase from time carrier from liability for such payments.
to time as changes in the GS–2 grade are § 726.209 Report; by whom sent.
enacted into law. The endorsement § 726.205 Other forms of endorsement and The report of issuance, cancellation,
provisions contained in paragraph (a) of policies.
or renewal of a policy and endorsement
this section shall be construed to Forms of endorsement or policies provided for in § 726.208 shall be sent
incorporate in any policy or contract of other than that described in § 726.203 by the home office of the carrier, except
insurance obtained by an operator to may be entered into by operators to that any carrier may authorize its agency
meet the obligations imposed on such insure their liability under the Act. or agencies to make such reports to the
operator by section 423 of the Act, the However, any form of endorsement or Office.
requirement that the payment of policy which materially alters or
benefits to eligible beneficiaries shall be attempts to materially alter an operator’s § 726.210 Agreement to be bound by
made in such dollar amounts as are liability for the payment of any benefits report.
prescribed by section 412(a) of the Act under the Act shall be deemed Every carrier seeking to write
computed at the time of payment. insufficient to discharge such operator’s insurance under the provisions of the
Act shall be deemed to have agreed that such failure occurs. If the operator is a operator has ceased coal mining and any
the acceptance by the Office of a report corporation, the president, secretary, related activity, unless the operator
of the issuance or renewal of a policy of and treasurer of the operator shall also secured its liability for all previous
insurance, as provided for by § 726.208 be severally liable for the penalty based periods through a policy or policies of
shall bind the carrier to full liability for on the operator’s failure to secure the insurance obtained in accordance with
the obligations under the Act of the payment of benefits. This subpart subpart C of this part or has obtained a
operator named in said report. It shall defines those terms necessary for certification of exemption in accordance
be no defense to this agreement that the administration of the civil money with the provisions of § 726.114.
carrier failed or delayed to issue, cancel, penalty provisions, describes the criteria (c)(1) A daily base penalty amount
or renew the policy to the operator for determining the amount of penalty shall be determined for all periods up to
covered by this report. to be assessed, and sets forth applicable and including the 10th day after the
procedures for the assessment and operator’s receipt of the notification sent
§ 726.211 Name of one employer only shall by the Director pursuant to § 726.303,
be given in each report. contest of penalties.
during which the operator failed to
A separate report of the issuance or § 726.301 Definitions. secure its obligations under section 423
renewal of a policy and endorsement, In addition to the definitions of the Act and § 726.4.
provided for by § 726.208, shall be made provided in part 725 of this subchapter (2)(i) The daily base penalty amount
for each operator covered by a policy. If and § 726.8, the following definitions shall be determined based on the
a policy is issued or renewed insuring apply to this subpart: number of persons employed in coal
more than one operator, a separate (a) Division Director means the mine employment by the operator, or
report for each operator so covered shall Director, Division of Coal Mine engaged in coal mine employment on
be sent to the Office with the name of Workers’ Compensation, Office of behalf of the operator, on each day of
only one operator on each such report. Workers’ Compensation Programs, the period defined by this section, and
§ 726.212 Notice of cancellation. Employment Standards Administration, shall be computed as follows:
or such other official authorized by the
Cancellation of a contract or policy of Penalty
Division Director to perform any of the Employees
insurance issued under authority of the (per day)
functions of the Division Director under
Act shall not become effective otherwise
this subpart.
than as provided by 33 U.S.C. 936(b); Less than 25 ............................. $100
(b) President, secretary, or treasurer 25–50 ........................................ 200
and notice of a proposed cancellation
means the officers of a corporation as 51–100 ...................................... 300
shall be given to the Office and to the
designated pursuant to the laws and More than 100 .......................... 400
operator in accordance with the
regulations of the state in which the
provisions of 33 U.S.C. 912(c), 30 days (ii) For any period after the operator
corporation is incorporated or, if that
before such cancellation is intended to has ceased coal mining and any related
state does not require the designation of
be effective (see section 422(a) of part C activity, the daily penalty amount shall
such officers, the employees of a
of title IV of the Act). be computed based on the largest
company who are performing the work
§ 726.213 Reports by carriers concerning usually performed by such officers in number of persons employed in coal
the payment of benefits. the state in which the corporation’s mine employment by the operator, or
Pursuant to 33 U.S.C. 914(c) as principal place of business is located. engaged in coal mine employment on
incorporated by section 422(a) of part C (c) Principal means any person who behalf of the operator, on any day while
of title IV of the Act and § 726.207 each has an ownership interest in an operator the operator was engaged in coal mining
carrier issuing a policy or contract of that is not a corporation, and shall or any related activity. For purposes of
insurance under the Act shall upon include, but is not limited to, partners, this section, it shall be presumed, in the
making the first payment of benefits and sole proprietors, and any other person absence of evidence to the contrary, that
upon the suspension of any payment in who exercises control over the operation any person employed by an operator is
any case, immediately notify the Office of a coal mine. employed in coal mine employment.
in accordance with a form prescribed by (3) In any case in which the operator
§ 726.302 Determination of penalty. had prior notice of the applicability of
the Office that payment of benefit has
(a) The following method shall be the Black Lung Benefits Act to its
begun or has been suspended as the case
used for determining the amount of any operations, the daily base penalty
may be. In addition, each such carrier
penalty assessed under this subpart. amounts set forth in paragraph (c)(2)(i)
shall at the request of the Office submit
(b) The penalty shall be determined of this section shall be doubled. Prior
to the Office such additional
by multiplying the daily base penalty notice may be inferred where the
information concerning policies or
amount or amounts, determined in operator, or an entity in which the
contracts of insurance issued to
accordance with the formula set forth in operator or any of its principals had an
guarantee the payment of benefits under
this section, by the number of days in ownership interest, or an entity in
the Act and any benefits paid
the period during which the operator is which the operator’s president,
thereunder, as the Office may from time
subject to the security requirements of secretary, or treasurer were employed:
to time require to carry out its
section 423 of the Act and § 726.4, and (i) Previously complied with section
responsibilities under the Act.
fails to secure its obligations under the 423 of the Act and § 726.4;
Subpart D—Civil Money Penalties Act. The period during which an (ii) Was notified of its obligation to
operator is subject to liability for a comply with section 423 of the Act and
§ 726.300 Purpose and scope. penalty for failure to secure its § 726.4; or
Any operator which is required to obligations shall be deemed to (iii) Was notified of its potential
secure the payment of benefits under commence on the first day on which the liability for a claim filed under the
section 423 of the Act and § 726.4 and operator met the definition of the term Black Lung Benefits Act pursuant to
which fails to secure such benefits, shall ‘‘operator’’ as set forth in § 725.101 of § 725.407 of this subchapter.
be subject to a civil penalty of not more this subchapter. The period shall be (4) Commencing with the 11th day
than $1,000 for each day during which deemed to continue even where the after the operator’s receipt of the
notification sent by the Director Director shall be considered to sit in the § 726.307 Form of notice of contest and
pursuant to § 726.303, the daily base District of Columbia. request for hearing.
penalty amounts set forth in paragraph (a) Any person desiring to contest the
(c)(2)(i) shall be increased by $100. § 726.304 Notice of initial assessment. Director’s notice of initial assessment
(5) In any case in which the operator, (a) After an operator receives shall request an administrative hearing
or any of its principals, or an entity in notification under § 726.303 and fails to pursuant to this part. The notice of
which the operator’s president, secure its obligations for the period contest shall be made in writing to the
secretary, or treasurer were employed, defined in § 726.302(b), and following Director, Division of Coal Mine
has been the subject of a previous the completion of any investigation, the Workers’ Compensation, Office of
penalty assessment under this part, the Director may issue a notice of initial Workers’ Compensation Programs,
daily base penalty amounts shall be penalty assessment in accordance with Employment Standards Administration,
increased by $300, up to a maximum the criteria set forth in § 726.302. United States Department of Labor. The
daily base penalty amount of $1,000. (b)(1) A copy of such notice shall be notice of contest must be received no
The maximum daily base penalty sent by certified mail to the operator. If later than 30 days after the date of
amount applicable to any violation of the operator is a corporation, a copy receipt of the notice issued under
§ 726.4 that takes place after January 19, shall also be sent by certified mail to § 726.304. No additional time shall be
2001 shall be $1,100. each of the persons who served as added where service of the notice is
(d) The penalty shall be subject to president, secretary, or treasurer of the made by mail.
reduction for any period during which operator during any period in which the (b) The notice of contest shall:
the operator had a reasonable belief that operator was in violation of section 423 (1) Be dated;
it was not required to comply with of the Act and § 726.4. (2) Be typewritten or legibly written;
section 423 of the Act and § 726.4 or a (3) State the specific issues to be
(2) Where service by certified mail is contested. In particular, the person must
reasonable belief that it had obtained not accepted by any person, the notice
insurance coverage to comply with indicate his agreement or disagreement
shall be deemed received by that person with:
section 423 of the Act and § 726.4. A on the date of attempted delivery.
notice of contest filed in accordance (i) The Director’s determination that
Where service is not accepted, the the person against whom the penalty is
with § 726.307 shall not be sufficient to Director may exercise discretion to serve
establish a reasonable belief that the assessed is an operator subject to the
the notice by regular mail. requirements of section 423 of the Act
operator was not required to comply
with the Act and regulations. § 726.305 Contents of notice. and § 726.4, or is the president,
secretary, or treasurer of an operator, if
§ 726.303 Notification; investigation. The notice required by § 726.304 the operator is a corporation.
shall: (ii) The Director’s determination that
(a) If the Director determines that an
operator has violated the provisions of (a) Identify the operator against whom the operator violated section 423 of the
section 423 of the Act and § 726.4, he the penalty is assessed, as well as the Act and § 726.4 for the time period in
or she shall notify the operator of its name of any other person severally question; and
violation and request that the operator liable for such penalty; (iii) The Director’s determination of
immediately secure the payment of (b) Set forth the determination of the the amount of penalty owed;
benefits. Such notice shall be sent by Director as to the amount of the penalty (4) Be signed by the person making
certified mail. and the reason or reasons therefor; the request or an authorized
(b) The Director shall also direct the (c) Set forth the right of each person representative of such person; and
operator to supply information relevant identified in paragraph (a) of this (5) Include the address at which such
to the assessment of a penalty. Such section to contest the notice and request person or authorized representative
information, which shall be supplied a hearing before the Office of desires to receive further
within 30 days of the Director’s request, Administrative Law Judges; communications relating thereto.
may include: (c) A notice of contest filed by the
(d) Set forth the method for each operator shall be deemed a notice of
(1) The date on which the operator person identified in paragraph (a) to
commenced its operation of a coal mine; contest on behalf of all other persons to
contest the notice and request a hearing the Director’s determinations that the
(2) The number of persons employed before the Office of Administrative Law operator is subject to section 423 of the
by the operator since it began operating Judges; and Act and § 726.4 and that the operator
a coal mine and the dates of their (e) Inform any affected person that in violated those provisions for the time
employment; and the absence of a timely contest and period in question, and to the Director’s
(3) The identity and last known request for hearing received within 30 determination of the amount of penalty
address: days of the date of receipt of the notice, owed. An operator may not contest the
(i) In the case of a corporation, of all the Director’s assessment will become Director’s determination that a person
persons who served as president, final and unappealable as to that person. against whom the penalty is assessed is
secretary, and treasurer of the operator the president, secretary, or treasurer of
since it began operating a coal mine; or § 726.306 Finality of administrative
assessment. the operator.
(ii) In the case of an operator which (d) Failure to specifically identify an
is not incorporated, of all persons who Except as provided in § 726.307(c), if issue as contested pursuant to paragraph
were principals of the operator since it any person identified as potentially (b)(3) of this section shall be deemed a
began operating a coal mine; liable for the assessment does not, waiver of the right to contest that issue.
(c) In conducting any investigation of within 30 days after receipt of notice,
an operator under this subpart, the contest the assessment, the Director’s § 726.308 Service and computation of
Division Director shall have all of the assessment shall be deemed final as to time.
powers of a district director, as set forth that person, and collection and recovery (a) Service of documents under this
at § 725.351(a) of this subchapter. For of the penalty may be instituted part shall be made by delivery to the
purposes of § 725.351(c), the Division pursuant to § 726.320. person, an officer of a corporation, or
attorney of record, or by mailing the section at any time prior to the date insurance carrier reported coverage of
document to the last known address of upon which the decision of the the operator for the time period in
the person, officer, or attorney. If service Department becomes final by filing a question.
is made by mail, it shall be considered motion with the Office of (b) The Director need not produce
complete upon mailing. Unless Administrative Law Judges or the further evidence in support of his
otherwise provided in this subpart, Secretary, as appropriate. If the Director burden of proof with respect to the
service need not be made by certified makes such a motion prior to the date issues set forth in paragraph (a) if no
mail. If service is made by delivery, it on which an administrative law judge party contested them pursuant to
shall be considered complete upon renders a decision in accordance § 726.307(b)(3).
actual receipt by the person, officer, or § 726.313, the dismissal shall be without (c) The Director shall bear the burden
attorney; upon leaving it at the person’s, prejudice to further assessment against of proving the size of the operator as
officer’s or attorney’s office with a clerk the operator for the period in question. required by § 726.302, except that if the
or person in charge; upon leaving it at Director has requested the operator to
a conspicuous place in the office if no § 726.310 Appointment of Administrative supply information with respect to its
Law Judge and notification of hearing date. size under § 726.303 and the operator
one is in charge; or by leaving it at the
person’s or attorney’s residence. Upon receipt from the Director of a has not fully complied with that
(b) If a complaint has been filed complaint filed pursuant to § 726.309, request, it shall be presumed that the
pursuant to § 726.309, two copies of all the Chief Administrative Law Judge operator has more than 100 employees
documents filed in any administrative shall appoint an Administrative Law engaged in coal mine employment. The
proceeding under this subpart shall be Judge to hear the case. The person or persons liable for the
served on the attorneys for the Administrative Law Judge shall notify assessment shall thereafter bear the
Department of Labor. One copy shall be all interested parties of the time and burden of proving the actual number of
served on the Associate Solicitor, Black place of the hearing. employees engaged in coal mine
Lung Benefits Division, Room N–2117, § 726.311 Evidence. employment.
Office of the Solicitor, U.S. Department (d) The Director shall bear the burden
of Labor, 200 Constitution Ave., NW., (a) Except as specifically provided in of proving the operator’s receipt of the
Washington, DC 20210, and one copy on this subpart, and to the extent they do notification required by § 726.303, the
the attorney representing the not conflict with the provisions of this operator’s prior notice of the
Department in the proceeding. subpart, the Rules of Practice and applicability of the Black Lung Benefits
(c) The time allowed a party to file Procedure for Administrative Hearings Act to its operations, and the existence
any response under this subpart shall be Before the Office of Administrative Law of any previous assessment against the
computed beginning with the day Judges established by the Secretary at 29 operator, the operator’s principals, or
following the action requiring a CFR part 18 shall apply to the operator’s officers.
response, and shall include the last day administrative proceedings under this (e) The person or persons liable for an
of the period, unless it is a Saturday, subpart. assessment shall bear the burden of
Sunday, or federally-observed holiday, (b) Notwithstanding 29 CFR proving the applicability of the
see § 725.311 of Part 725 of this 18.1101(b)(2), subpart B of the Rules of mitigating factors listed in § 726.302(d).
subchapter, in which case the time Practice and Procedure for
period shall include the next business Administrative Hearings Before the § 726.313 Decision and order of
Office of Administrative Law Judges Administrative Law Judge.
day.
shall apply to administrative (a) The Administrative Law Judge
§ 726.309 Referral to the Office of proceedings under this part, except that shall render a decision on the issues
Administrative Law Judges. documents contained in Department of referred by the Director.
(a) Upon receipt of a timely notice of Labor files and offered on behalf of the (b) The decision of the Administrative
contest filed in accordance with Director shall be admissible in Law Judge shall be limited to
§ 726.307, the Director, by the Associate proceedings under this subpart without determining, where such issues are
Solicitor for Black Lung Benefits or the regard to their compliance with the properly before him or her:
Regional Solicitor for the Region in Rules of Practice and Procedure. (1) Whether the operator has violated
which the violation occurred, may file section 423 of the Act and § 726.4;
a complaint with the Office of § 726.312 Burdens of proof. (2) Whether other persons identified
Administrative Law Judges. The (a) The Director shall bear the burden by the Director as potentially severally
Director may, in the complaint, reduce of proving the existence of a violation, liable for the penalty were the president,
the total penalty amount requested. A and the time period for which the treasurer, or secretary of the corporation
copy of the notice of initial assessment violation occurred. To prove a violation, during the time period in question; and
issued by the Director and all notices of the Director must establish: (3) The appropriateness of the penalty
contest filed in accordance with (1) That the person against whom the assessed by the Director in light of the
§ 726.307 shall be attached. A notice of penalty is assessed is an operator, or is factors set forth in § 726.302. The
contest shall be given the effect of an the president, secretary, or treasurer of Administrative Law Judge shall not
answer to the complaint for purposes of an operator, if such operator is a render determinations on the legality of
the administrative proceeding, subject corporation. a regulatory provision or the
to any amendment that may be (2) That the operator violated section constitutionality of a statutory
permitted under this subpart and 29 423 of the Act and § 726.4. The filing of provision.
CFR part 18. a complaint shall be considered prima (c) The decision of the Administrative
(b) A copy of the complaint and facie evidence that the Director has Law Judge shall include a statement of
attachments thereto shall be served by searched the records maintained by findings and conclusions, with reasons
counsel for the Director on the person OWCP and has determined that the and bases therefor, upon each material
who filed the notice of contest. operator was not authorized to self- issue presented on the record. The
(c) The Director, by counsel, may insure its liability under the Act for the decision shall also include an
withdraw a complaint filed under this time period in question, and that no appropriate order which may affirm,
reverse, or modify, in whole or in part, believes the Administrative Law Judge’s § 726.318 Final decision of the Secretary.
the determination of the Director. decision is in error; The Secretary’s review shall be based
(d) The Administrative Law Judge (d) Be signed by the party filing the upon the hearing record. The findings of
shall serve copies of the decision on petition or an authorized representative fact in the decision under review shall
each of the parties by certified mail. of such party; and be conclusive if supported by
(e) The decision of the Administrative (e) Attach copies of the substantial evidence in the record as a
Law Judge shall be deemed to have been Administrative Law Judge’s decision whole. The Secretary’s review of
issued on the date that it is rendered, and any other documents admitted into conclusions of law shall be de novo.
and shall constitute the final order of the record by the Administrative Law Upon review of the decision, the
the Secretary unless there is a request Judge which would assist the Secretary Secretary may affirm, reverse, modify,
for reconsideration by the in determining whether review is or vacate the decision, and may remand
Administrative Law Judge pursuant to warranted. the case to the Office of Administrative
paragraph (f) of this section or a petition Law Judges for further proceedings. The
for review filed pursuant to § 726.314. § 726.316 Filing and service.
(a) Filing. All documents submitted to Secretary’s final decision shall be served
(f) Any party may request that the upon all parties and the Chief
Administrative Law Judge reconsider the Secretary shall be filed with the
Secretary of Labor, U.S. Department of Administrative Law Judge, in person or
his or her decision by filing a motion by mail to the last known address.
within 30 days of the date upon which Labor, 200 Constitution Ave., N.W.,
the decision of the Administrative Law Washington, DC 20210. § 726.319 Retention of official record.
Judge is issued. A timely motion for (b) Number of copies. An original and
four copies of all documents shall be The official record of every completed
reconsideration shall suspend the
filed. administrative hearing held pursuant to
running of the time for any party to file
(c) Computation of time for delivery this part shall be maintained and filed
a petition for review pursuant to
by mail. Documents are not deemed under the custody and control of the
§ 726.314.
filed with the Secretary until actually Director.
(g) Following issuance of the decision
and order, the Chief Administrative Law received by the Secretary either on or § 726.320 Collection and recovery of
Judge shall promptly forward the before the due date. No additional time penalty.
complete hearing record to the Director. shall be added where service of a
document requiring action within a (a) When the determination of the
§ 726.314 Review by the Secretary. prescribed time was made by mail. amount of any civil money penalty
(a) The Director or any party (d) Manner and proof of service. A provided for in this part becomes final,
aggrieved by a decision of the copy of each document filed with the in accordance with the administrative
Administrative Law Judge may petition Secretary shall be served upon all other assessment thereof, or pursuant to the
the Secretary for review of the decision parties involved in the proceeding. decision and order of an Administrative
by filing a petition within 30 days of the Service under this section shall be by Law Judge, or following the decision of
date on which the decision was issued. personal delivery or by mail. Service by the Secretary, the amount of the penalty
Any other party may file a cross-petition mail is deemed effected at the time of as thus determined is immediately due
for review within 15 days of its receipt mailing to the last known address. and payable to the U.S. Department of
of a petition for review or within 30 Labor on behalf of the Black Lung
§ 726.317 Discretionary review. Disability Trust Fund. The person
days of the date on which the decision
was issued, whichever is later. Copies of (a) Following receipt of a timely against whom such penalty has been
any petition or cross-petition shall be petition for review, the Secretary shall assessed or imposed shall promptly
served on all parties and on the Chief determine whether the decision remit the amount thereof, as finally
Administrative Law Judge. warrants review, and shall send a notice determined, to the Secretary by certified
(b) A petition filed by one party shall of such determination to the parties and check or by money order, made payable
not affect the finality of the decision the Chief Administrative Law Judge. If to the order of U.S. Department of
with respect to other parties. the Secretary declines to review the Labor, Black Lung Program. Such
(c) If any party files a timely motion decision, the Administrative Law remittance shall be delivered or mailed
for reconsideration, any petition for Judge’s decision shall be considered the to the Director.
review, whether filed prior to or final decision of the agency. The (b) If such remittance is not received
subsequent to the filing of the timely Secretary’s determination to review a within 30 days after it becomes due and
motion for reconsideration, shall be decision by an Administrative Law payable, it may be recovered in a civil
dismissed without prejudice as Judge under this subpart is solely within action brought by the Secretary in any
premature. The 30-day time limit for the discretion of the Secretary. court of competent jurisdiction, in
filing a petition for review by any party (b) The Secretary’s notice shall which litigation the Secretary shall be
shall commence upon issuance of a specify: represented by the Solicitor of Labor.
decision on reconsideration. (1) The issue or issues to be reviewed;
and PART 727—[REMOVED]
§ 726.315 Contents. (2) The schedule for submitting
Any petition or cross-petition for arguments, in the form of briefs or such
6. Under the authority of sections 422
review shall: other pleadings as the Secretary deems
and 426 of the Black Lung Benefits Act,
(a) Be dated; appropriate.
30 U.S.C. 932, 936, part 727 is removed.
(b) Be typewritten or legibly written; (c) Upon receipt of the Secretary’s
(c) State the specific reason or reasons notice, the Director shall forward the [FR Doc. 00–31166 Filed 12–19–00; 8:45 am]
why the party petitioning for review record to the Secretary. BILLING CODE 4510–48–P

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Wednesday,

December 20, 2000

20 CFR Part 718 et al.

bronchitis was clearly related to cumulative dust exposure. The table

Cumulative dust exposure (in percent)

Intermediate exposure High exposure

FEV1 <80% .............................................. 17.1 9.7 24.2 15.5 40.0 23.9

20 CFR 718.205 evidence establishing a detectable interpretation. Bradberry, 117 F.3d

statutory coverage of construction filing of a claim as an element of Department to reopen an approved

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