E7-1432. Regulations Implementing the Black Lung Benefits Act of 1969, as Amended

AGENCY:

Employment Standards Administration, Labor.

ACTION:

Final rule.

SUMMARY:

This final rule eliminates the procedural requirement that the Department's administrative law judges include the parties' names in decisions and orders issued in Black Lung Benefits Act claims. The Department is revising the rule to give the Office of Administrative Law Judges more flexibility in captioning these decisions. This will allow the Department the flexibility to limit the amount of personal information about black lung claimants that is included in published final decisions.

DATES:

Effective January 30, 2007.

FOR FURTHER INFORMATION CONTACT:

James L. DeMarce, Director, Division of Coal Mine Workers' Compensation, Office of Workers' Compensation Programs, Employment Standards Administration, 202-693-0046.

SUPPLEMENTARY INFORMATION:

The current version of § 725.477(b) has been in effect since 1978. The regulation requires the Department of Labor's Office of Administrative Law Judges to include, among other things, the “names of the parties” in decisions and orders issued under the Black Lung Benefits Act, as amended, 30 U.S.C. 901-944. Coal miners or their survivors who have filed claims for benefits are parties to the claim; thus, their names are included in the decision and order. Given the nature of black lung benefits claims, the decision and order frequently contains a variety of personal information about the miner and his or her survivors and dependents. In virtually every case, this information includes detailed medical assessments of the miner's physical condition, including the miner's medical history, physical examination and objective test findings, medical treatment records, and hospitalization records. In certain cases, a miner's or survivor's financial records and the names, birthdates, and medical histories of dependents may also be disclosed.

For many years, publication of these decisions was not widespread. Although available for public inspection through the Office of Administrative Law Judges, only a small percentage of decisions were published in commercial legal reporters, such as the Black Lung Reporter. But beginning in November 1996, Congress required agencies to publish final adjudicatory decisions on the Internet (or in other electronic form). See 5 U.S.C. 552(a)(2). Accordingly, the Office of Administrative Law Judges now posts all final decisions on the Department of Labor's Web site. As a result, these decisions are now readily accessible to the public. By removing from § 725.477(b) the requirement that parties' names be included in decisions, the revised rule affords the Office of Administrative Law Judges the flexibility to adopt procedures, as it deems necessary, that both ensure public access to its decisions and eliminate the link between individual claimants and their medical and financial information necessarily disclosed in those decisions.

Finally, the revision to § 725.477(b) conforms the Black Lung Benefits Act regulations to the rules governing decisions issued by the Office of Administrative Law Judges under the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 901 et seq., as well as decisions issued by the Benefits Review Board and the Employees' Compensation Appeals Board, two other Department of Labor adjudicatory bodies. Neither the Longshore Act regulations nor the regulations governing decisions issued by the two Boards require that the parties' names be included in the decisions rendered. See 20 CFR 501.6 (Employees' Compensation Appeals Board); 20 CFR 702.348 (Longshore Act); 20 CFR 802.404 (Benefits Review Board).

Rulemaking Analyses

Administrative Procedure Act

Section 553 of the Administrative Procedure Act exempts “rules of agency organization, procedure, or practice.” from proposed rulemaking (i.e., notice-and-comment rulemaking). 5 U.S.C. 553(b)(3)(A). The Department's revision to § 725.477(b) pertains solely to the Department's formatting of decisions and orders and makes no change to a substantive standard. Accordingly, the Department has determined that this revision need not be published as a proposed rule under 5 U.S.C. 553(b). For the same reason, the Department has determined that there is good cause, within the meaning of 5 U.S.C. 553(d)(3), to make the revision effective upon publication.

Regulatory Flexibility Act

Because the Department has concluded that this action is not subject to the Administrative Procedure Act's proposed rulemaking requirements, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act(5 U.S.C. 601 et seq.).

Unfunded Mandates Reform Act

This action is not subject to sections 202 or 205 of the Unfunded Mandates Reform Act (UMRA, Pub. L. 104-4) because the Department has determined that the revision is not subject to the Administrative Procedure Act's proposed rulemaking requirements. In addition, this action does not significantly or uniquely affect small governments or impose a significant intergovernmental mandate as described in sections 203 and 204 of UMRA.

Paperwork Reduction Act

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).

Executive Order 12866

This action is not a “significant regulatory action” and is therefore not subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735 (Oct. 4, 1993)).

Executive Order 13132

This action will not have substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as described in Executive Order 13132 (64 FR 43255 (Aug. 10, 1999)).

List of Subjects in 20 CFR Part 725

• Administrative practice and procedure
• Black lung benefits
• Claims
• Health care
• Lung diseases
• Miners
• Mines
• Workers' compensation

For the reasons set forth in the preamble, 20 CFR Part 725 is amended as set forth below:

PART 725—CLAIMS FOR BENEFITS UNDER PART C OF TITLE IV OF THE FEDERAL MINE SAFETY AND HEALTH ACT, AS AMENDED

1. The authority citation for part 725 continues to read as follows:

Authority: 5 U.S.C. 301, Reorganization Plan No. 6 of 1950, 15 FR 3174, 30 U.S.C. 901 et seq., 921, 932, 936; 33 U.S.C. 901 et seq., 42 U.S.C. 405, Secretary's Order 7-87, 52 FR 48466, Employment Standards Order No. 90-02.

2. Amend § 725.477(b) by revising the first sentence to read as follows:

§ 725.477

Form and contents of decision and order.

* * * * *

(b) A decision and order shall contain a statement of the basis of the order, findings of fact, conclusions of law, and an award, rejection or other appropriate paragraph containing the action of the administrative law judge, his or her signature and the date of issuance * * *.

Signed at Washington, DC, this 25th day of January, 2007.

Victoria A. Lipnic,

Assistant Secretary for Employment Standards Administration.

Shelby Hallmark,

Director, Office of Workers' Compensation Programs.