[Federal Register Volume 64, Number 195 (Friday, October 8, 1999)]
[Proposed Rules]
[Pages 54966-55072]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-24658]
[[Page 54965]]
_______________________________________________________________________
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; Proposed Rule
Federal Register / Vol. 64, No. 195 / Friday, October 8, 1999 /
Proposed Rules
[[Page 54966]]
DEPARTMENT OF LABOR
Employment Standards Administration
20 CFR Parts 718, 722, 725, 726, and 727
RIN 1215-AA99
Regulations Implementing the Federal Coal Mine Health and Safety
Act of 1969, as Amended
AGENCY: Employment Standards Administration, Labor.
ACTION: Proposed rule.
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SUMMARY: On January 22, 1997, the Department issued a proposed rule to
amend the regulations implementing the Black Lung Benefits Act. The
Department initially allowed interested parties until March 24, 1997 to
file comments, but extended that deadline twice. When the comment
period finally closed on August 21, 1997, the Department had received
almost 200 written submissions from coal miners, coal mine operators,
insurers, physicians, and attorneys. In addition, the Department held
two hearings, one on June 19, 1997 in Charleston, West Virginia, and
another on July 22-23, 1997 in Washington, D.C. Over 50 people
testified at the Department's hearings. In total, the Department heard
from over 100 former coal miners and members of their families, over 50
coal mine operators and insurance companies that provide black lung
benefits insurance, eight physicians, eight attorneys representing both
claimants and coal mine operators, nine legislators at the federal and
state levels, and groups as diverse as the United Mine Workers of
America, the National Black Lung Association, the National Mining
Association, the American Insurance Association, and the American Bar
Association.
The Department has reviewed all of the comments and testimony, and
has decided to issue a second proposal, revising a number of the most
important regulations contained in the earlier proposal. In some cases,
the Department has proposed additional changes to these regulations. In
other cases, the Department has explained its decision not to alter its
proposal based on the comments received to date. Finally, the
Department has prepared an initial regulatory flexibility analysis. The
Department's second proposal is intended to accomplish two purposes.
First, it will provide notice to all interested parties of the proposed
revisions, as well as of the initial regulatory flexibility analysis
set forth in this document. Second, the re-proposal will allow small
entities that may have been unaware of the Department's earlier
proposal to submit comments on the entire proposed rule.
DATES: Comments must be submitted on or before December 7, 1999.
ADDRESSES: All comments concerning these proposed regulations should be
addressed to James L. DeMarce, Director, Division of Coal Mine Workers'
Compensation, Room C-3520, Frances Perkins Building, 200 Constitution
Ave., NW., Washington, DC 20210.
FOR FURTHER INFORMATION CONTACT: James L. DeMarce, (202) 693-0046.
SUPPLEMENTARY INFORMATION:
This notice reprints 20 CFR Parts 718, 722, 725, and 726 in their
entirety for the convenience of interested parties. This notice thus
necessarily includes proposed revisions contained in the Department's
original notice of proposed rulemaking. 62 FR 3338 (Jan. 22, 1997). The
Department intends this notice to supplement the original notice,
however, and not to replace it. To the extent that previously proposed
regulatory changes have not been altered by the revisions contained in
this notice, the explanation of those changes contained in the
Department's initial notice remains valid. Where the Department has
proposed additional changes, those changes are explained below.
Summary of Noteworthy Proposed Regulations
Evidentiary Development
Documentary Medical Evidence
The Department's initial proposal governing evidentiary development
in black lung claims resulted in the greatest volume of public comment,
from coal mine operators, their insurers, claims servicing
organizations and miners. Many commenters were critical of the
Department's proposal that all documentary medical evidence was to be
submitted to the district director in the absence of extraordinary
circumstances. Numerous commenters, expressing widely varying points of
view, also addressed the proposed limitation on the amount of
documentary medical evidence that each side could submit in a given
claim.
After carefully considering the many valid objections to the
required submission of documentary medical evidence to the district
director, the Department now proposes to retain the current process for
submitting documentary medical evidence into the record. Under this
process, parties may submit documentary medical evidence either to the
district director or to an administrative law judge (ALJ) up to 20 days
before an ALJ hearing, or even thereafter, if good cause is shown. This
proposal does retain, however, the Department's original limitation on
the amount of documentary medical evidence which may be submitted in
each claim. To clarify its intent, the Department has defined
differently the applicable evidentiary limitations. These limitations
are now expressed in terms of the types of evidence most commonly used
to establish or refute entitlement to benefits under Secs. 718.202 and
718.204. Thus, rather than describing the evidentiary limitations in
terms of two pulmonary evaluations or consultative reports, the revised
Sec. 725.414 speaks in terms of two chest X-ray interpretations, the
results of two pulmonary function tests, two arterial blood gas
studies, and two medical reports.
The revised Sec. 725.414 also would make explicit the amount of
evidence which each side may submit in rebuttal of its opponent's case.
A party may submit no more than one physician's interpretation of each
chest X-ray, pulmonary function test, or arterial blood gas study
submitted by its opponent. In addition, the Department proposes to
permit a party to rehabilitate evidence that has been the subject of
rebuttal. For example, where a party submits a physician's
interpretation in rebuttal of a chest X-ray interpretation or objective
test, the party that originally submitted the chest X-ray or test into
evidence may introduce a contrary statement from the physician who
originally interpreted it.
This proposal would alter in one significant way the limitations on
the amount of medical evidence admissible in each claim. In order to
allow for a more careful consideration of the unique facts and
circumstances of each case, and to provide an additional procedural
safeguard, this proposal would permit an administrative law judge to
admit medical evidence into the record in excess of the limits outlined
in Sec. 725.414 upon a showing of good cause. The Department's prior
proposal would have permitted the admission of such evidence only if a
moving party could demonstrate extraordinary circumstances.
Complete Pulmonary Evaluation
The Department also proposes a change in the manner in which it
administers the complete pulmonary evaluation required by the Black
Lung Benefits Act. Under the Department's original proposal, a miner
could be examined either by a physician selected
[[Page 54967]]
by the Department or by a physician of his choosing. If the miner
selected the physician, however, the report of that examination would
have counted as one of the two pulmonary evaluations the miner was
entitled to submit into evidence. The Department now proposes to allow
the miner to choose the physician or facility to perform the complete
pulmonary evaluation from a list of providers maintained by the
Department. The authorized list of physicians and facilities in a given
case would include all those in the state of the miner's residence and
contiguous states. If, however, a miner chose a provider more than one
hundred miles from his residence to administer the 413(b) evaluation,
the designated responsible operator could choose to send the miner a
comparable distance for its examination. The 413(b) examination results
would not count against the miner's quota. Sec. 725.406.
The Department believes that this proposal would benefit all
parties to a claim. It would make possible the best quality respiratory
and pulmonary evaluation and would insure each miner a thorough
examination, performed in compliance with the applicable quality
standards. Such a pulmonary evaluation would therefore give the
Department a sound evidentiary basis upon which to make an initial
finding, a finding which both the claimant and the operator may find
credible. The Department intends to develop more rigorous standards for
physicians and facilities that perform pulmonary evaluations and to
reevaluate the fees it pays physicians to perform and explain the
results of these examinations. The Department has discussed in the
preamble to Sec. 725.406 several possible criteria that the Office
might use in selecting appropriate physicians and facilities, and
invites comment on these and other possible criteria.
Developing medical evidence relevant to the claimant's respiratory
and pulmonary condition, including the objective medical testing
required by the Department's quality standards, may involve costs
beyond the reach of some claimants. Thus, this proposal would require a
district director to inform the claimant that he may have the results
of the Department's initial objective testing sent to his treating
physician for use in the preparation of a medical report that complies
with the Department's quality standards. The district director's notice
would also inform the claimant that, if submitted, a report from his
treating physician would count as one of the two reports he is entitled
to submit under Sec. 725.414, and that he may wish to seek advice, from
a lawyer or other qualified representative, before requesting his
treating physician to supply such a report. In this way, the Department
hopes to assist claimants who may not be able to afford the necessary
objective testing.
Documentary Evidence Pertaining to the Liability of a Potentially
Liable Operator or the Responsible Operator
Although the Department now proposes to allow the submission of new
documentary medical evidence while a case is pending before the Office
of Administrative Law Judges, it has not altered the proposal with
respect to the required submission to the district director of all
documentary evidence relevant to potentially liable operators and the
responsible operator. Proposed Secs. 725.408, 725.414 and 725.456 would
continue to require that such evidence be submitted to the district
director and that an administrative law judge may admit additional
evidence on such issues only if the party seeking to submit the
evidence demonstrates extraordinary circumstances justifying its
admission. The Department has revised proposed Sec. 725.408, however,
in response to operators' comments. That section would now allow an
operator, notified of its potential liability under proposed
Sec. 725.407, 90 days, rather than 60, to submit documentary evidence
challenging the district director's determination that it meets the
requirements in Sec. 725.408(a)(2). In addition, the 90 day period
could be extended for good cause pursuant to Sec. 725.423.
Witnesses
This proposal alters the provisions governing witnesses testimony.
Secs. 725.414, 725.456, 725.457. The revisions would allow a physician
to testify, either at a hearing or pursuant to deposition, if he
authored a ``medical report'' admitted into the record pursuant to
Sec. 725.414. Alternatively, if a party has submitted fewer than the
two medical reports allowed as an affirmative case, a physician who did
not prepare a medical report could testify in lieu of such a report. No
party would be allowed to offer the testimony of more than two
physicians, however, unless the administrative law judge found good
cause to allow evidence in excess of the Sec. 725.414 limitations. The
Department also has proposed altering its original limitation on the
scope of a physician's testimony. If a physician is permitted to
testify, he may testify as to any medical evidence of record, and not
solely with respect to the contents of the report he prepared.
The regulations governing witnesses testimony would continue to
require that the parties notify the district director of any potential
witness whose testimony pertains to the liability of a potentially
liable operator or the responsible operator. Absent such notice, the
testimony of such a witness may not be admitted into a hearing record
absent an administrative law judge's finding of extraordinary
circumstances. Secs. 725.414, 725.457.
Witnesses' Fees
The Department received comments from both miners and coal mine
operators criticizing its initial proposal, which would have assessed
liability for witnesses' fees on the party seeking to cross-examine a
witness if the witness's proponent did not intend to call the witness
to appear at the hearing. In response to these objections, the
Department now proposes to assess the costs of cross-examination of a
witness on the party relying on that witness's affirmative testimony.
This change will make the regulation more consistent with the manner in
which witnesses' fees are paid in general litigation. Under the
proposal, the party whose witness is to be cross-examined may request
the administrative law judge to authorize a less burdensome method of
cross-examination than an actual appearance at a hearing, provided that
the alternative method authorized will produce a full and true
disclosure of the facts.
The only exception to this general rule would be in the case of an
indigent claimant. If a claimant is the proponent of the witness whose
cross-examination is sought, and the claimant demonstrates that he
would be deprived of ordinary and necessary living expenses if required
to pay the witness's fee and mileage necessary to produce the witness
for cross-examination, the administrative law judge may apportion the
costs of the cross-examination between the parties, up to and including
the assessment of the total cost against the party opposing claimant's
entitlement. A claimant shall be considered deprived of funds required
for ordinary and necessary living expenses under the standards set
forth at 20 CFR 404.508. The Black Lung Disability Trust Fund may not
be held liable for such witness's fee in any case in which the district
director has designated a responsible operator, except that the fund
may be assessed the cost associated with the cross-examination of the
physician who performed the miner's complete pulmonary evaluation.
[[Page 54968]]
Subsequent Claims
Subsequent applications for benefits are filed more than one year
after the denial of a previous claim and may be adjudicated only if the
claimant demonstrates that an applicable condition of entitlement has
changed in the interim. In its initial notice of proposed rulemaking,
the Department attempted to clarify the regulation governing subsequent
claims by summarizing and incorporating into the regulation's language
the outcome of considerable appellate litigation. 62 FR 3351-3353 (Jan.
22, 1997). Because the courts of appeals have issued additional
decisions since the Department's initial proposal, the proposal now
merely codifies caselaw that is already applicable to more than 90
percent of the claimants who apply for black lung benefits. The
Department's complete discussion of the numerous comments received in
response to the first notice of proposed rulemaking is found under
Sec. 725.309.
This second proposal contains two changes to Sec. 725.309 as
initially proposed. Both changes affect Sec. 725.309(d)(3). The
Department now proposes elimination of the rebuttable presumption that
the miner's physical condition has changed if the miner proves with new
medical evidence one of the applicable conditions of entitlement.
Commenters responded that the proposal was confusing and would lead to
considerable litigation. The Department agrees that the presumption is
unnecessary and suggests its deletion. Under the new proposal, a
subsequent claim will be denied unless the claimant demonstrates that
one of the applicable conditions of entitlement has changed since the
date upon which the order denying the prior claim became final. Section
725.309(d)(3) of this proposal also clarifies the Department's original
intent with respect to subsequent survivors' claims. In order to avoid
an automatic denial, the applicant in a subsequent survivor's claim
must demonstrate that at least one of the applicable conditions of
entitlement is unrelated to the miner's physical condition at the time
of his death. Thus, if the prior denial was based solely on the
survivor's failure to establish that the miner had pneumoconiosis, that
the miner's pneumoconiosis was caused by coal mine employment, or that
the pneumoconiosis contributed to the miner's death, any subsequent
claim must also be denied, absent waiver by the liable party.
By allowing the filing of a subsequent claim for benefits which
alleges a worsening of the miner's condition, the Department merely
recognizes the progressive nature of pneumoconiosis. The proposed
regulation does not allow the reopening of any prior claim which was
denied more than one year before the filing of the subsequent claim. It
also prohibits any award of benefits for a period of time covered by
that prior denial. Responsible operators have argued to the circuit
courts of appeals that the Department's regulatory scheme allows the
``recycling'' of an old claim in violation of the Supreme Court's
holding that a black lung claimant may not ``seek[] to avoid the bar of
res judicata [finality] on the ground that the decision was wrong.''
Pittston Coal Group v. Sebben, 488 U.S. 105, 123 (1988). The courts
have uniformly rejected this argument, see Lovilia Coal Co. v. Harvey,
109 F.3d 445, 449-450 (8th Cir. 1997), cert. denied, 118 S. Ct. 1385
(1998). Thus, the Department's proposal is fully consistent with the
Supreme Court's holding in Sebben, and gives appropriate finality to
prior denials.
The Department's experience with subsequent claims also
demonstrates the need for such filings. During the period between
January 1, 1982, when the Black Lung Benefits Amendments of 1981 took
effect, and July 16, 1998, 10.56 percent of the subsequent claims filed
by living miners were ultimately awarded as opposed to only 7.47
percent of first-time claims. To prevent a miner who has previously
been denied benefits from filing a subsequent claim would force each
miner to ``guess'' correctly when he has become totally disabled due to
pneumoconiosis arising out of coal mine employment because a premature
and unsuccessful filing would forever bar an award. In addition, the
total number of subsequent claims filed by miners during that same time
period, 30,964, as compared to the total number of claims filed,
approximately 107,000, indicates that the provision is not abused. Of
the total number of claims filed, only approximately 1,400, or 1.3
percent, were from individuals who had been denied benefits three or
more times. Thus, in general, only an individual who believes his
condition has truly worsened files a subsequent claim.
Although the Department's proposal would allow the filing of
subsequent claims, the Department also intends to take steps to better
educate claimants with respect to the requirements for entitlement. The
Department intends to provide better initial pulmonary evaluations and
better reasoned, more detailed explanations of denials of claims. By
providing claimants with a more realistic view of their possible
entitlement, the Department expects that the number of nonmeritorious
applications will be reduced.
Attorneys' Fees
In its first notice of proposed rulemaking, the Department
attempted to clarify an operator's liability for a claimant's
attorney's fees and the dates on which the operator's liability
commenced. The Department also recognized the Trust Fund's liability
for attorneys' fees and made it coextensive with a liable operator's.
In general, the Department used the date of the event which created an
adversarial relationship between the claimant and either the operator
or the fund as the date on which liability for a claimant's attorney's
fees commenced. The Department used this date based on the theory that
it was the creation of an adversarial relationship which required
employment of an attorney. Thus, for example, a successful claimant's
attorney could only collect a fee from an operator or the fund for
necessary work performed after the liable operator first contested the
claimant's eligibility or the fund first denied the claim. See 62 FR
3354, 3399 (Jan. 22, 1997).
Upon further reflection and consideration of the comments received,
however, the Department now proposes to allow successful claimants'
attorneys to collect fees from an operator or the fund for all
necessary work they perform in a case rather than only the work
performed after creation of an adversarial relationship. Although the
creation of an adversarial relationship and the ultimately successful
prosecution of a claim are still necessary to trigger employer or fund
liability for attorneys' fees, the date on which the adversarial
relationship commenced will no longer serve as the starting point of
liability. The Department believes this change may be appropriate in
light of the evidentiary limitations present in the proposal. These
limitations significantly alter the consequences of an early submission
of evidence and make the quality of each piece of evidence submitted
significantly more important. Thus, in an attempt to avoid setting a
trap for the unwary claimant and to encourage early attorney
involvement in these claims, the Department proposes allowing
successful attorneys to collect fees for all of the necessary work they
perform.
Treating Physicians' Opinions
In the preamble accompanying its initial proposal, the Department
noted that its proposal to allow a fact-finder to give controlling
weight to the opinion of
[[Page 54969]]
a treating physician attempted to codify principles embodied in case
law and also drew on a similar regulation adopted by the Social
Security Administration, 20 CFR 404.1527(d)(2). See 62 Fed. Reg. 3338,
3342 (Jan. 22, 1997). The Department's proposal elicited widely
divergent comment from numerous sources. The Department now invites
comment on alternative ways to determine when a treating physician's
opinion may be entitled to controlling weight.
The purpose of this proposal is not to limit a factfinder's
consideration of any properly admitted medical or other relevant
evidence. Rather, this regulation would mandate only that the
factfinder recognize that a treating physician may possess additional
insight into the miner's respiratory or pulmonary condition by virtue
of his extended treatment. The Department has proposed two changes to
Sec. 718.104(d). In the absence of contrary probative evidence, the
adjudication officer would be required to accept the physician's
statement with regard to the nature and duration of the doctor's
treatment relationship with the miner, and the frequency and extent of
that treatment. Sec. 718.104(d)(5). The Department has also added
language to Sec. 718.104(d) to make explicit its intent that a treating
physician's opinion may establish all of the medical elements of
entitlement. Finally, the Department has retained the language in the
original proposal that whether controlling weight is given to the
opinion of a treating physician shall also be based on the credibility
of that opinion in light of its reasoning and documentation, other
relevant evidence and the record as a whole.
Waiver of Overpayments
In its previous notice of proposed rulemaking, the Department
extended the right to seek waiver of recovery of an overpayment to all
claimants, without regard to whether recovery was sought by a
responsible operator or the Black Lung Disability Trust Fund. 62 FR
3366-3367 (Jan. 22, 1997). The Department received numerous comments in
response, many urging adoption of a more generous waiver provision
fashioned after the Longshore and Harbor Workers' Compensation Act.
Many other comments opposed the extension of waiver rights to all
claimants as an unconstitutional deprivation of responsible operators'
property rights and right to appeal. Thus far, these comments have not
provided the Department with a sufficient basis for altering its
original proposal. See the discussion under Sec. 725.547.
The Department also heard testimony from a number of witnesses
generally critical of the application of the criteria used to determine
whether recoupment of an overpayment would defeat the purposes of title
IV of the Federal Coal Mine Health and Safety Act or would be against
equity and good conscience. These waiver criteria are incorporated into
the Black Lung Benefits Act from the Social Security Act, 30 U.S.C.
923(b), 940, incorporating 42 U.S.C. 404(b), and the Social Security
Administration uses them in its adjudication of overpayments arising
under title II of the Social Security Act. Thus, Social Security's
current interpretation of these criteria is found in Social Security
regulations governing title II claims, 20 CFR 404.506 through 404.512,
not in their regulations governing Part B claims filed under the Black
Lung Benefits Act, 20 CFR 410.561 through 410.561h. In order to make
the standards for waiver of recovery of a black lung overpayment more
current, the Department proposes to amend section 725.543 to
incorporate Social Security's title II standards, rather than its Part
B regulations.
Definition of Pneumoconiosis and Establishing Total Disability Due to
Pneumoconiosis
The Department has suggested no further change to its initial
proposal defining pneumoconiosis, Sec. 718.201, and no significant
change to its regulation defining total disability and disability
causation, Sec. 718.204. The miner retains the burden of proving each
of these required elements of entitlement.
The Department received widely divergent comments from medical
professionals on its proposed definition of pneumoconiosis. Some
commenters argued that the proposal lacked a sound medical basis and
would therefore unjustifiably increase the number of claims approved.
Other physicians, also with expertise in pulmonary medicine, supported
the proposal. As a result, the Department sought additional guidance on
this issue from the National Institute for Occupational Safety and
Health (NIOSH). The Department forwarded to NIOSH all of the comments
and testimony it had received relevant to Sec. 718.201 and requested
that NIOSH advise the Department whether any of the material altered
that agency's original opinion, submitted during the comment period,
which supported the Department's proposal. NIOSH concluded that the
unfavorable comments and testimony did not alter its previous position:
NIOSH scientific analysis supports the proposed definitional changes.
The Department also received numerous comments on its proposed
regulation defining total disability and disability causation, and
setting out the criteria for establishing total disability. The
Department has proposed no significant change to Sec. 718.204. It has
proposed, however, a change in the methodology by which pulmonary
function tests are administered. Sec. 718.103(a) and Appendix B to Part
718. This proposal would require that pulmonary function testing be
administered by means of a flow-volume loop, a more reliable method of
ensuring valid, verifiable results in pulmonary function testing. The
Department invites comment on these proposed changes.
True Doubt
The ``true doubt'' rule was an evidentiary weighing principle under
which an issue was resolved in favor of the claimant if the probative
evidence for and against the claimant was in equipoise. In its first
notice of proposed rulemaking, the Department proposed deleting
subsection (c) of the current regulation at Sec. 718.3, because the
Supreme Court held that this language failed to define the ``true
doubt'' rule effectively. 62 FR 3341 (Jan. 22, 1997). Although the
Department received a number of comments urging the proposal of a
``true doubt'' rule, the Department has not done so in this second
notice of proposed rulemaking.
The Department believes that evaluation of conflicting medical
evidence requires careful consideration of a wide variety of disparate
factors, making the applicability of any true doubt rule extremely
limited. The availability of these factors makes it unlikely that a
factfinder will be able to conclude that the evidence, although in
conflict, is equally probative. Thus, the Department does not believe
that promulgation of a true doubt rule will enhance decision-making
under the Act.
Federal Coal Mine Health and Safety Act Endorsement
Section 726.203 was not among the regulations the Department opened
for comment in its previous notice of proposed rulemaking.
Representatives of the insurance industry commented, however, that a
different version of the endorsement contained in Sec. 726.203(a) has
been in use since 1984, with the Department's knowledge and consent.
The Department is now opening Sec. 726.203 for comment. Although this
proposal does not suggest alternative language for the endorsement, the
[[Page 54970]]
preamble does contain the version of the endorsement which the industry
provided. The Department invites comment on its possible use, but urges
commenters to bear in mind the requirement in Sec. 726.205 that
endorsements other than those provided by Sec. 726.203 may be used only
if they do not ``materially alter or attempt [] to alter an operator's
liability for the payment of any benefits under the Act.* * *'' The
Department also requests that the insurance industry submit for the
record any document it might possess from the Department authorizing
use of the different endorsement.
Medical Benefits
Since the Department's initial proposal, the U.S. Court of Appeals
for the Sixth Circuit has issued a decision addressing the
compensability of medical expenses incurred as a result of treatment
for totally disabling pneumoconiosis. Glen Coal Co. v. Seals, 147 F.3d
502 (6th Cir. 1998). A majority of that panel held that the Benefits
Review Board had erred by applying the Fourth Circuit's presumption to
a miner whose coal mine employment took place within the jurisdiction
of the Sixth Circuit. In the Fourth Circuit, if a miner entitled to
monthly black lung benefits receives treatment for a pulmonary
disorder, it is presumed that that disorder is caused or aggravated by
the miner's pneumoconiosis. Doris Coal Co. v. Director, OWCP, 938 F.2d
492 (4th Cir. 1991); Gulf & Western Indus. v. Ling, __ F.3d __, 1999 WL
148851 (4th Cir. Mar. 19, 1999).
The Department believes that black lung benefit claims adjudication
should vary as little as possible from circuit to circuit, and
consequently continues to propose a regulatory presumption, based on
the Fourth Circuit's approach, that would apply nationwide. The Sixth
Circuit's opinion would allow such a result, given the separate views
expressed by each of the three judges sitting on that panel. The
Department also believes that a regulatory presumption governing the
compensability of medical expenses for the treatment of totally
disabling pneumoconiosis is appropriate given the rational connection
between the facts proven and the facts presumed.
Explanation of Proposed Changes
Open Regulations
The Department invites comments from interested parties on the
following regulations: Sec. 718.3, Sec. 718.101, Sec. 718.102,
Sec. 718.103, Sec. 718.104, Sec. 718.105, Sec. 718.106, Sec. 718.107,
Sec. 718.201, Sec. 718.202, Sec. 718.204, Sec. 718.205, Sec. 718.301,
Sec. 718.307, Sec. 718.401, Sec. 718.402, Sec. 718.403, Sec. 718.404,
Appendix B to part 718, Appendix C to Part 718, part 722 (entire),
Sec. 725.1, Sec. 725.2, Sec. 725.4, Sec. 725.101, Sec. 725.103,
Sec. 725.202, Sec. 725.203, Sec. 725.204, Sec. 725.209, Sec. 725.212,
Sec. 725.213, Sec. 725.214, Sec. 725.215, Sec. 725.219, Sec. 725.221,
Sec. 725.222, Sec. 725.223, Sec. 725.306, Sec. 725.309, Sec. 725.310,
Sec. 725.311, Sec. 725.351, Sec. 725.362, Sec. 725.367, Sec. 725.403,
Sec. 725.405, Sec. 725.406, Sec. 725.407, Sec. 725.408, Sec. 725.409,
Sec. 725.410, Sec. 725.411, Sec. 725.412, Sec. 725.413, Sec. 725.414,
Sec. 725.415, Sec. 725.416, Sec. 725.417, Sec. 725.418, Sec. 725.421,
Sec. 725.423, Sec. 725.452, Sec. 725.454, Sec. 725.456, Sec. 725.457,
Sec. 725.458, Sec. 725.459, Sec. 725.465, Sec. 725.478, Sec. 725.479,
Sec. 725.490, Sec. 725.491, Sec. 725.492, Sec. 725.493, Sec. 725.494,
Sec. 725.495, Sec. 725.502, Sec. 725.503, Sec. 725.515, Sec. 725.522,
Sec. 725.530, Sec. 725.533, Sec. 725.537, Sec. 725.543, Sec. 725.544,
Sec. 725.547, Sec. 725.548, Sec. 725.606, Sec. 725.608, Sec. 725.609,
Sec. 725.620, Sec. 725.621, Sec. 725.701, Sec. 725.706, Sec. 726.2,
Sec. 726.8, Sec. 726.101, Sec. 726.104, Sec. 726.105, Sec. 726.106,
Sec. 726.109, Sec. 726.110, Sec. 726.111, Sec. 726.114, Sec. 726.203,
Sec. 726.300, Sec. 726.301, Sec. 726.302, Sec. 726.303, Sec. 726.304,
Sec. 726.305, Sec. 726.306, Sec. 726.307, Sec. 726.308, Sec. 726.309,
Sec. 726.310, Sec. 726.311, Sec. 726.312, Sec. 726.313, Sec. 726.314,
Sec. 726.315, Sec. 726.316, Sec. 726.317, Sec. 726.318, Sec. 726.319,
Sec. 726.320, and part 727 (entire).
New Regulations Open for Comment
The Department's initial notice of proposed rulemaking contained a
list of regulations, entitled ``Substantive Revisions,'' that the
Department proposed to revise. 62 FR at 3340 (Jan. 22, 1997). That list
of regulations is reproduced above with six additions. The Department
is now proposing changes to ten regulations that were not open for
comment previously: Sec. 725.351, Sec. 725.403, Sec. 725.465,
Sec. 725.515, Sec. 725.533, Sec. 725.543, Sec. 725.544, Sec. 725.548,
Sec. 726.3, and Sec. 726.203. Although the Department has not proposed
any specific changes to section 726.203, the Department seeks comment
from interested parties on the changes to that regulation suggested by
the insurance industry. Accordingly, the Department now invites comment
from all interested parties on the regulations listed above as Open
Regulations.
Additional Technical changes
The Department's first proposal identified a number of regulations
to which the Department was proposing to make technical revisions. See
62 FR 3340-41 (Jan. 22, 1997). The Department is now proposing
additional technical revisions. Among other things, these proposed
changes delete references to the control numbers used by the Office of
Management and Budget to approve revisions to the regulations in 1984
because the inclusion of these numbers is neither necessary nor helpful
to understanding the Department's regulations. See, e.g., 20 CFR
718.102 (1999). In addition, at the request of the Office of the
Federal Register, the Department is proposing to change references to
various components of title 20 of the Code of Federal Regulations and
to various statutory provisions and to add a colon to Sec. 726.1. The
following regulations should be added to the list of regulations to
which the Department is making only technical revisions: Appendix A to
Part 718, Sec. 725.201, Sec. 725.218, Sec. 725.220, Sec. 725.531,
Sec. 725.536, Sec. 726.1, Sec. 726.103, Sec. 726.207, Sec. 726.208,
Sec. 726.209, Sec. 726.210, Sec. 726.211, Sec. 726.212, and
Sec. 726.213.
Complete List of Technical Revisions
The complete list of regulations to which the Department is making
technical changes is as follows: Sec. 718.1, Sec. 718.2, Sec. 718.4,
Sec. 718.303, Appendix A to Part 718, Sec. 725.102, Sec. 725.201,
Sec. 725.216, Sec. 725.217, Sec. 725.218, Sec. 725.220, Sec. 725.301,
Sec. 725.302, Sec. 725.350, Sec. 725.360, Sec. 725.366, Sec. 725.401,
Sec. 725.402, Sec. 725.404, Sec. 725.419, Sec. 725.420, Sec. 725.450,
Sec. 725.451, Sec. 725.453A, Sec. 725.455, Sec. 725.459A, Sec. 725.462,
Sec. 725.463, Sec. 725.466, Sec. 725.480, Sec. 725.496, Sec. 725.501,
Sec. 725.503A, Sec. 725.504, Sec. 725.505, Sec. 725.506, Sec. 725.507,
Sec. 725.510, Sec. 725.513, Sec. 725.514, Sec. 725.521, Sec. 725.531,
Sec. 725.532, Sec. 725.536, Sec. 725.603, Sec. 725.604, Sec. 725.605,
Sec. 725.607, Sec. 725.701A, Sec. 725.702, Sec. 725.703, Sec. 725.704,
Sec. 725.705, Sec. 725.707, Sec. 725.708, Sec. 725.711, Sec. 726.1,
Sec. 726.4, Sec. 726.103, Sec. 726.207, Sec. 726.208, Sec. 726.209,
Sec. 726.210, Sec. 726.211, Sec. 726.212, and Sec. 726.213. Pursuant to
the authority set forth in 5 U.S.C. 552(b)(3)(A), which allows federal
agencies to alter ``rules of agency organization, procedure, or
practice'' without notice and comment, the Department is not accepting
comments on any of these regulations.
Unchanged Regulations
Certain regulations are merely being re-promulgated without
alteration and are also not open for public comment. To the extent
appropriate, the Department's previous explanations of
[[Page 54971]]
these regulations, set forth in the Federal Register, see 43 FR 36772-
36831, Aug. 18, 1978; 48 FR 24272-24294, May 31, 1983, remain
applicable. The same is true of those regulations to which the
Department is making only technical changes. The following regulations
are being re-promulgated for the convenience and readers: Sec. 718.203,
Sec. 718.206, Sec. 718.302, Sec. 718.304, Sec. 718.305, Sec. 718.306,
Sec. 725.3, Sec. 725.205, Sec. 725.206, Sec. 725.207, Sec. 725.208,
Sec. 725.210, Sec. 725.211, Sec. 725.224, Sec. 725.225, Sec. 725.226,
Sec. 725.227, Sec. 725.228, Sec. 725.229, Sec. 725.230, Sec. 725.231,
Sec. 725.232, Sec. 725.233, Sec. 725.303, Sec. 725.304, Sec. 725.305,
Sec. 725.307, Sec. 725.308, Sec. 725.352, Sec. 725.361, Sec. 725.363,
Sec. 725.364, Sec. 725.365, Sec. 725.422, Sec. 725.453, Sec. 725.460,
Sec. 725.461, Sec. 725.464, Sec. 725.475, Sec. 725.476, Sec. 725.477,
Sec. 725.481, Sec. 725.482, Sec. 725.483, Sec. 725.497, Sec. 725.511,
Sec. 725.512, Sec. 725.520, Sec. 725.534, Sec. 725.535, Sec. 725.538,
Sec. 725.539, Sec. 725.540, Sec. 725.541, Sec. 725.542, Sec. 725.545,
Sec. 725.546, Sec. 725.601, Sec. 725.602, Sec. 725.710, Sec. 726.5,
Sec. 726.6, Sec. 726.7, Sec. 726.102, Sec. 726.107, Sec. 726.108,
Sec. 726.112, Sec. 726.113, Sec. 726.115, Sec. 726.201, Sec. 726.202,
Sec. 726.204, Sec. 726.205, and Sec. 726.206.
Changes in the Department's Second Proposal
The Department's second proposal contains substantive changes,
either in the regulation or the preamble language, or both, to the
following regulations: Sec. 718.3, Sec. 718.101, Sec. 718.103,
Sec. 718.104, Sec. 718.105, Sec. 718.106, Sec. 718.107, Sec. 718.201,
Sec. 718.204, Sec. 718.205, Part 718, Appendix B, Sec. 725.2,
Sec. 725.101, Sec. 725.209, Sec. 725.223, Sec. 725.309, Sec. 725.310,
Sec. 725.351, Sec. 725.367, Sec. 725.403, Sec. 725.406, Sec. 725.407,
Sec. 725.408, Sec. 725.409, Sec. 725.411, Sec. 725.414, Sec. 725.416,
Sec. 725.456, Sec. 725.457, Sec. 725.459, Sec. 725.465, Sec. 725.491,
Sec. 725.492, Sec. 725.493, Sec. 725.494, Sec. 725.495, Sec. 725.502,
Sec. 725.503, Sec. 725.515, Sec. 725.533, Sec. 725.543, Sec. 725.544,
Sec. 725.547, Sec. 725.548, Sec. 725.606, Sec. 725.701, Sec. 726.3,
Sec. 726.8 and Sec. 726.203. The Department has carefully considered
all of the comments that it has received to date with regard to the
regulations. The preamble contains an explanation of the Department's
proposed changes as well as its reason for rejecting other suggestions.
In particular, the Department invites comment from small businesses
that may not have been aware of the potential impact of the
Department's proposed rule. In order to ensure that small businesses
have adequate information, the Department intends to mail a copy of
this proposal to each coal mine operator who is identified in current
records maintained by the Mine Safety and Health Administration.
Several commenters suggest that the Department lacks the authority
to revise the regulations governing claims filed under the Black Lung
Benefits Act. Although some of these objections are limited to
individual regulations, such as the definition of ``pneumoconiosis,''
and will be addressed in the discussion of those regulations, two of
the objections apply to a substantial number of the revisions made by
the Department. They are: first, that the Department lacks the
authority to promulgate regulations covering matters that were the
subject of an unsuccessful attempt to amend the Act in 1994; and,
second, that the Supreme Court's decision in Director, OWCP v.
Greenwich Collieries, 512 U.S. 267 (1994), prohibits the Department
from adopting any regulation that requires coal mine operators to bear
a burden of proof.
Regulatory Authority
In 1994, the 104th Congress considered legislation that would have
amended the Black Lung Benefits Act by, among other things, limiting
the amount of evidence parties may submit, providing claimants with
overpayment relief, and allowing previously denied applicants to seek
de novo review of their claims. The House passed a version of this
legislation, H.R. 2108, on May 19, 1994, but the Senate adjourned in
September, 1994 without acting on several similar bills. Numerous
commenters have argued that in ``rejecting'' H.R. 2108, the Congress
has already disapproved certain of the revisions now proposed by the
Department. This argument fails on two grounds. First, Congress'
failure to act does not deprive the Department of the authority to
promulgate regulations otherwise conferred by the Black Lung Benefits
Act. Second, Congress did not reject the legislation. Instead, the
Senate adjourned without considering its version of the bill passed by
the House.
The starting point for determining the validity of any regulation
is the legislation authorizing the agency to issue binding rules. As a
general matter, ``[t]he power of an administrative agency to administer
a congressionally created * * * program necessarily requires the
formulation of policy and the making of rules to fill any gap left,
implicitly or explicitly, by Congress.'' Morton v. Ruiz, 415 U.S. 199,
231 (1974). ``If Congress has explicitly left a gap for the agency to
fill, there is an express delegation of authority to the agency to
elucidate a specific provision of the statute by regulation. Such
legislative regulations are given controlling weight unless they are
arbitrary, capricious, or manifestly contrary to the statute.'' Chevron
v. Natural Resources Defense Council, 467 U.S. 837, 843-44 (1984).
In Pauley v. Bethenergy Mines, Inc., 501 U.S. 680 (1991), the
Supreme Court recognized the applicability of the Chevron analysis to
regulations implementing the Black Lung Benefits Act:
It is precisely this recognition that informs our determination
that deference to the Secretary is appropriate here. The Black Lung
Benefits Act has produced a complex and highly technical regulatory
program. The identification and classification of medical
eligibility criteria necessarily require significant expertise, and
entail the exercise of judgment grounded in policy concerns. In
those circumstances, courts appropriately defer to the agency
entrusted by Congress to make such policy determinations.
Id. at 696. In addition to providing this general authority, the Black
Lung Benefits Act contains several explicit provisions authorizing
rule-making by the Department of Labor. Section 422(a) of the Act
provides that ``[i]n administering this part [Part C of the Act], the
Secretary is authorized to prescribe in the Federal Register such
additional provisions * * * as [s]he deems necessary to provide for the
payment of benefits by such operator to persons entitled thereto as
provided in this part and thereafter those provisions shall be
applicable to such operator.'' 30 U.S.C. 932(a). Section 426(a) of the
Act similarly authorizes the Secretary to ``issue such regulations as
[she] deems appropriate to carry out the provisions of this title.'' 30
U.S.C. 936(a). As the Fourth Circuit has pointed out, these two
provisions represent a ``broad grant of rulemaking authority.'' Harman
Mining Co. v. Director, OWCP, 826 F.2d 1388, 1390 (4th Cir. 1987).
Finally, the Act contains several other provisions authorizing the
Secretary to promulgate regulations on specific subjects. See, e.g., 30
U.S.C. 902(f)(1)(D) (criteria for medical tests which accurately
reflect total disability), 932(h) (standards for assigning liability to
operators), and 933(b)(3) (required insurance contract provisions).
The Secretary's rulemaking authority is not unlimited. For example,
section 422(a) prohibits the Department from promulgating regulations
that are inconsistent with Congress's decision to exclude certain
provisions of the Longshore and Harbor Workers' Compensation Act from
those
[[Page 54972]]
incorporated into the Black Lung Benefits Act. Moreover, under Chevron,
the Department clearly has no authority to issue regulations on a
subject which Congress has addressed unambiguously. Pittston Coal Group
v. Sebben, 488 U.S. 105 (1988). For example, in 1981, Congress amended
the Act to limit the eligibility of surviving spouses of deceased coal
miners who filed claims on or after January 1, 1982. Congress provided
that such a spouse would be entitled to survivors' benefits only if
[s]he could establish that the miner had died due to pneumoconiosis.
Pub. L. 97-119, 95 Stat. 1635, Sec. 203(a)(2), (3). The bill passed by
the House in 1994 would have reinstated so-called unrelated death
benefits so as to allow a surviving spouse to collect benefits, no
matter the miner's cause of death, so long as the miner was totally
disabled due to pneumoconiosis at the time of death. Because that bill
did not become law, however, the 1981 requirement remains in effect,
and quite obviously limits the Department's ability to regulate in this
area.
The mere fact that Congress considered legislation affecting some
of the same subjects addressed by the Department's regulatory proposal,
however, cannot be construed as a similar limitation. ``Ordinarily, and
quite appropriately, courts are slow to attribute significance to the
failure of Congress to act on particular legislation.'' Bob Jones
University v. United States, 461 U.S. 574, 600 (1983). In particular,
the Department is not aware of any case holding that the failure of a
previous Congress to enact legislation prevents an administrative
agency from promulgating regulations on similar topics.
Moreover, the regulations proposed by the Department are, for the
most part, quite different in content from the provisions of either the
bill that was passed by the House or the bills that were under
consideration by the Senate when it adjourned. The Department's
proposed revision of the definition of ``pneumoconiosis'' is similar in
one respect to a provision in H.R. 2108 (recognizing that both
obstructive and restrictive lung disease may be caused by exposure to
coal mine dust). Other provisions, however, are significantly
different. For example, H.R. 2108 would have completely relieved
claimants of the obligation to repay overpaid amounts. In contrast, the
Department's proposal would ensure only that the rules governing waiver
of overpayments are applied without regard to whether the overpayment
was made by the Black Lung Disability Trust Fund or a responsible
operator. In fact, the Department has specifically rejected comments
urging it to use certain provisions incorporated from the Longshore and
Harbor Workers' Compensation Act that would bar the recoupment of
overpayments by employers, an approach similar to that considered by
the 104th Congress. Although the Department is not proposing the
widespread overpayment relief that was contained in H.R. 2108 and was
sought by these commenters, the Department also does not believe that
Congress intended that claimants who receive payment from the Trust
Fund be treated differently than claimants who receive payments from
liable coal mine operators. The Department's proposal would simply
guarantee the equitable treatment of both claimant groups.
The Department's proposed evidentiary limitation is also
significantly different from the limitation set forth in H.R. 2108.
Under the bill passed by the House, claimants would have been allowed
to submit three medical opinions, and responsible operators or the
Trust Fund would have been allowed only one. The Department agrees that
evidentiary limitations are needed to level the playing field between
operators and claimants, but does not believe that the playing field
should be tilted in favor of one party. Rather, the Department's
proposal treats all parties equally and encourages them to rely on the
quality of their medical evidence rather than its quantity. Hopefully,
the proposal's evidentiary limitations will improve the decisionmaking
process in black lung benefit claims.
Finally, the Department's treatment of denied claims also differs
significantly from that proposed in the legislation. H.R. 2108 would
have allowed any claimant denied benefits based on a claim filed on or
after January 1, 1982 to seek readjudication of that claim without
regard to the previous denial. The Department's proposed revision of
Sec. 725.309, on the other hand, specifically forbids the parties from
seeking readjudication of the earlier denial of benefits.
Sec. 725.309(d). Instead, the Department has proposed the codification
of a solution that has already been accepted by five courts of appeals
with jurisdiction over more than 90 percent of black lung claims filed.
That solution requires a claimant to establish, with new evidence, at
least one of the elements previously resolved against him before a new
claim may even be considered on the merits. Even if a claimant
establishes his entitlement to benefits based on a subsequent claim,
benefits will be paid based only on that application and not for time
periods covered by the earlier, final denial.
The Department therefore cannot accept the argument that Congress'
failure to enact legislation in 1994 prevents the Department from
revising regulations that have not been amended since 1983. In many
cases, the Department is simply proposing to codify the decisions of a
majority of the appellate courts. In other cases, the Department's
proposed revisions represent reasonable methods of dealing with
problems that have arisen since the black lung benefits regulations
were first promulgated in 1978. The Department's ability to address
those problems in regulations is independent of any Congressional
effort to reform the Black Lung Benefits Act, and should be judged
according to the standards set forth in Chevron. For the reasons set
forth in its initial notice of proposed rulemaking, 62 FR 3337 (Jan.
22, 1997) and in this notice, the Department believes that its proposed
revisions meet those standards.
Administrative Procedure Act
A number of commenters also suggest that the Department's ability
to create regulatory presumptions is constrained by the Administrative
Procedure Act and the Supreme Court's decision in Greenwich Collieries.
In Greenwich Collieries, the Supreme Court invalidated the use of the
``true doubt'' rule, an evidentiary principle that effectively shifted
the risk of non-persuasion from black lung applicants to coal mine
operators. Under the ``true doubt'' rule, fact-finders were required to
resolve any issue in favor of the claimant if the evidence for and
against entitlement was equally probative. In contrast, section 7(c) of
the Administrative Procedure Act (APA), 5 U.S.C. 556(d), states that
``[e]xcept as otherwise provided by statute, the proponent of a rule or
order has the burden of proof.'' The Court held that, even assuming
that the Department could displace the APA through regulation, the
Department's existing regulation, 20 CFR 718.403, was insufficient to
do so. Finally, the Court determined that the party assigned the
``burden of proof'' by the APA bore the risk of non-persuasion. As a
result, the court held the APA required that the Department resolve
cases of equally probative evidence against the claimant, the party
seeking an order compelling the payment of benefits.
The commenters argue that the Court's decision effectively
prohibits the Department from imposing any burden of proof on an
operator under the Black Lung Benefits Act. The Department does
[[Page 54973]]
not believe that Greenwich Collieries requires such a result. At the
outset, it should be clear that the Court's decision did not address
the relationship between the Department's rulemaking authority and the
APA. Section 956 of the Federal Mine Safety and Health Act (FMSHA)
provides as follows:
Except as otherwise provided in this chapter, the provisions of
sections 551 to 559 and sections 701 to 706 of Title 5 shall not
apply to the making of any order, notice, or decision made pursuant
to this chapter, or to any proceeding for the review thereof.
30 U.S.C. 956. ``This chapter'' is a reference to chapter 22 of Title
30, United States Code, which codifies the FMSHA. Because the Black
Lung Benefits Act is subchapter IV of the FMSHA, section 956 generally
exempts the Act from the requirements of the section 7(c) of the APA.
Similarly, although section 19 of the Longshore and Harbor Workers'
Compensation Act, 33 U.S.C. 919, incorporated into the BLBA by 30
U.S.C. 932(a), makes the APA applicable to the adjudication of claims
under the LHWCA, that provision is incorporated into the Black Lung
Benefits Act only ``except as otherwise provided * * * by regulations
of the Secretary.'' The clear language of the FMSHA and the BLBA thus
authorize the Secretary to depart from the dictates of section 7(c)
when she determines it is in the best interest of the black lung
benefits program.
Moreover, the Court's decision in Greenwich Collieries did not
purport to decide the issues on which a particular party bears the
burden of persuasion. Rather, the Court merely decided that with
respect to two issues on which the claimant bears the burden of proof
under the Secretary's existing regulations (the existence of
pneumoconiosis and the cause of that disease), the claimant must
prevail by a preponderance of the evidence. As the Court observed in
its subsequent decision in Metropolitan Stevedore Co. v. Rambo, 117 S.
Ct. 1953, 1963 (1997), ``the preponderance standard goes to how
convincing the evidence in favor of a fact must be in comparison with
the evidence against it before that fact may be found, but does not
determine what facts must be proven as a substantive part of a claim or
defense.''
Under Greenwich Collieries, then, the Department remains free to
assign burdens of proof to parties as necessary to accomplish the
purposes of the Black Lung Benefits Act. The Department has
historically used regulatory presumptions where they were appropriate.
For example, current 20 CFR 725.492(c), presumes that each employee of
a coal mine operator was regularly and continuously exposed to coal
dust during the course of his employment. In promulgating this
regulation, the Department noted that such a showing required evidence
that was not generally available to the Department; rather such
evidence was within the control of the employer. 43 FR 36802-03 (Aug.
18, 1978). Current 20 CFR 725.493(a)(6) presumes that a miner's
pneumoconiosis arose in whole or in part out of employment with the
employer that meets the conditions for designation as the responsible
operator. Unless the presumption is rebutted, the regulation requires
the responsible operator to pay benefits to the claimant on account of
the miner's total disability or death. One commenter objected to this
presumption, set forth in revised Sec. 725.494(a), as a violation of
Greenwich Collieries, notwithstanding the Act's specific provision
authorizing the use of presumptions with respect to assignment of
liability to a miner's former employers. 30 U.S.C. 932(h).
Even where the BLBA is silent, the Act grants the Secretary
sufficiently broad rulemaking authority to authorize the adoption of
other presumptions. In American Hospital Association v. NLRB, 499 U.S.
606 (1991), the Court considered the ability of the National Labor
Relations Board, using similarly broad regulatory authority, to define
an appropriate bargaining unit by rulemaking even though the statute
required the Board to decide the appropriate bargaining unit ``in each
case.'' Citing a series of previous decisions, the Court held that
``even if a statutory scheme requires individualized determinations,
the decisionmaker has the authority to rely on rulemaking to resolve
certain issues of general applicability unless Congress clearly
expresses an intent to withhold that authority.'' Id. at 612. The Court
expanded on the NLRB's rulemaking authority in Allentown Mack Sales and
Service, Inc. v. NLRB, 118 S. Ct. 818 (1998). In dicta, the Court
concluded as follows:
The Board can, of course, forthrightly and explicitly adopt
counterfactual evidentiary presumptions (which are in effect
substantive rules of law) as a way of furthering legal or policy
goals--for example, the Board's irrebuttable presumption of majority
support for the union during the year following certification, see,
e.g., Station KKHI, 284 N.L.R.B. 1339, 1340, 1987 WL 89811 (1987),
enf'd, 891 F.2d 230 (C.A.9 1989). The Board might also be justified
in forthrightly and explicitly adopting a rule of evidence that
categorically excludes certain testimony on policy grounds, without
regard to its inherent probative value. (Such clearly announced
rules of law or of evidentiary exclusion would of course by subject
to judicial review for their reasonableness and their compatibility
with the Act.)
Id. at 828.
The NLRB's rulemaking authority in this regard is not unique. The
federal courts have upheld the use of presumptions by agencies as
diverse as the Department of Transportation, see Chemical Manufacturers
Association v. Department of Transportation, 105 F.3d 702, 705 (D.C.
Cir. 1997) (``It is well settled that an administrative agency may
establish evidentiary presumptions''); the Interstate Commerce
Commission, see Western Resources, Inc. v. Surface Transportation
Board, 109 F.3d 782, 788 (D.C. Cir. 1997); the Nuclear Regulatory
Commission, see New England Coalition on Nuclear Pollution v. NRC, 727
F.2d 1127, 1129 (D.C.Cir.1984) (Scalia, J.) (even a statutory mandate
requiring consideration of a specific issue ``does not preclude the
adoption of appropriate generalized criteria that would render some
case-by-case evaluations unnecessary''); and the Department of
Education, see Atlanta College of Medical and Dental Careers, Inc. v.
Riley, 987 F.2d 821, 830 (D.C. Cir. 1993) (``* * * under the
circumstances, it would seem quite reasonable for the Secretary to
adopt regulations or even adjudicatory presumptions--bright-line
rules--as to what a school must show * * *''). To the extent that the
Department, like any other administrative agency, uses rulemaking to
establish a presumption, that presumption must be based on a rational
nexus between the proven facts and the presumed facts. Chemical
Manufacturers Association, 105 F.3d at 705; NLRB v. Baptist Hosp.,
Inc., 442 U.S. 773, 787 (1979).
The Department's proposed regulations include provisions that
adjust burdens of proof among the parties. Section 725.495(c)(2), for
example, provides that the potentially liable operator designated as
the responsible operator by the Office of Workers' Compensation
Programs bears the burden of establishing that another operator that
employed the miner more recently is financially capable of assuming
liability for the payment of benefits. Section 726.312 specifically
allocates various burdens of proof between the Department and a coal
mine operator against which the Department is seeking a civil money
penalty for failure to secure the payment of benefits.
In its initial notice of proposed rulemaking, 62 FR 3337 (Jan. 22,
1997) and in this notice, the Department has demonstrated that such
assignments of
[[Page 54974]]
burdens of proof have been carefully tailored to meet the specific
needs of the black lung benefits program. Accordingly, the Department
does not agree with those commenters who argue that the Supreme Court's
decision in Greenwich Collieries prohibits the Department from
requiring responsible operators and their insurers to meet any burden
of proof in adjudications under the Act.
20 CFR Part 718--Standards for Determining Coal Miners' Total
Disability or Death Due to Pneumoconiosis
Subpart A--General
20 CFR 718.3
(a) In its earlier proposal, the Department proposed to delete
subsection (c) of Sec. 718.3, which the Department had cited to the
Supreme Court in support of its argument in favor of a ``true doubt''
rule. Under the ``true doubt'' rule, an evidentiary issue was resolved
in favor of the claimant if the probative evidence for and against the
claimant was in equipoise. In Director, OWCP v. Greenwich Collieries,
512 U.S. 267 (1994), the Court held that an administrative law judge's
use of the rule violated the Administrative Procedure Act, and that
Sec. 718.3 was an ambiguous regulation that could not be read as
authorizing such a rule.
A number of commenters argue that the Supreme Court held any ``true
doubt'' rule improper. Other comments urge the Department to reinstate
the ``true doubt'' rule by promulgating a regulation that clearly
authorizes fact-finders to use the rule in evaluating evidence in black
lung benefits claims. Throughout this rulemaking, however, the
Department has consistently stressed the need for factfinders to
conduct in-depth analyses of the evidence based on its quality rather
than quantity. Moreover, opinions by the courts of appeals and the
Benefits Review Board over the past twenty years have firmly
established that the evaluation of conflicting medical evidence
includes consideration of a wide variety of disparate factors, thus
making the applicability of any true doubt rule extremely limited. In
the case of a medical report, for example, the factfinder must examine
the report's documentation, its reasoning, its relationship to the
other medical reports of record, and the physician's qualifications or
other special status. The availability of all of these factors makes it
unlikely that a factfinder will be able to conclude that the evidence,
although in conflict, is equally probative. Accordingly, the Department
does not believe that the promulgation of a revised ``true doubt'' rule
will enhance decision-making under the Black Lung Benefits Act.
(b) Several comments urge the Department to retain subsection (c)
of the current version of Sec. 718.3. They argue that even if the
language does not explicitly provide a ``true doubt'' rule, it is a
useful reminder to factfinders of the purposes of the Black Lung
Benefits Act. In particular, they point to the Department's quality
standards for medical evidence and issues in which medical science does
not provide a definitive answer. The Department recognizes that the
adjudication of black lung benefits claims requires recognition of the
difficulties faced by claimants in establishing their entitlement to
benefits. Revised Sec. 718.101, for example, will require ``substantial
compliance'' with all of the quality standards applicable to medical
evidence, rather than strict adherence. Requiring ``substantial
compliance'' with the quality standards will give the fact-finder
sufficient flexibility to determine whether a particular piece of
evidence is probative of the claimant's condition notwithstanding its
failure to meet a relatively minor quality standard provision. The
Department does not agree, however, that section 718.3 should contain a
separate, and wholly unenforceable, statement of general principles.
Subsection (c) simply restates Congressional intent reflected in the
legislative history of the 1972 and 1978 amendments to the Black Lung
Benefits Act, see S. Rep. No. 743, 92nd Cong., 2nd Sess. 11, 1972
U.S.C.C.A.N. 2305; S. Rep. No. 95-209, 95th Cong., 2nd Sess. 13, 1978
U.S.C.C.A.N. 237. That legislative history may be used to support a
party's argument regardless of whether it is repeated in the
Secretary's regulations.
Subpart B
20 CFR 718.101
(a) The Department's proposed revision is intended to make clear
its disagreement with Benefits Review Board case law holding that the
Department's quality standards are applicable only to evidence
developed by the Director, OWCP. See Gorzalka v. Big Horn Coal Co., 16
Black Lung Rep. 1-48, 1-51 (Ben. Rev. Bd. 1990). Accordingly, the
Department proposed to amend the regulations to ensure that all
evidence developed in connection with black lung benefits claims meets
certain minimal quality standards. One comment observes that, as
drafted, the Department's revisions would allow factfinders to
invalidate medical evidence in claims already pending before the
Department although that evidence was valid under Board precedent when
it was developed. The Department agrees that upsetting settled
expectations regarding the applicability of the quality standards may
work a substantial hardship in some cases, particularly those involving
unrepresented claimants. Consequently, the Department has revised the
language in section 718.101(b) to clarify that the mandatory nature and
general applicability of the quality standards is prospective only.
Once a final rule takes effect, any testing or examination conducted
thereafter in connection with a black lung benefits claim that does not
substantially comply with the applicable quality standard will be
insufficient to establish the fact for which it is proffered.
(b) Four comments oppose the general requirement in Sec. 718.101(b)
that all evidence developed by any party in conjunction with a claim
for black lung benefits must be in substantial compliance with the
quality standards contained in subpart B. One comment notes the special
hardship imposed on miners in trying to generate conforming evidence.
Three comments assert that exclusion of nonconforming evidence violates
the statutory mandate that ``all relevant evidence'' be considered in
determining whether a claimant is entitled to benefits. 30 U.S.C.
923(b). The Department disagrees. The quality standards have been an
integral part of claims development and adjudication since the Part 718
regulations were first promulgated in 1980. The Department has also
consistently taken the position that the standards apply to all
evidence developed by any party for purposes of prosecuting, or
defending against, a claim for benefits. The proposed change simply
makes this position clear. Finally, employing quality standards to
ensure the use of reliable and technically accurate evidence is
consistent with section 923(b). Evidence which fails the ``substantial
compliance'' standard is inherently unreliable and thus necessarily
inadequate to prove or disprove entitlement issues, and therefore is
not ``relevant'' to the adjudication of the claim.
(c) One comment asks that the Department clarify that the quality
standards represent the only basis on which the reliability of a
medical opinion or test may be challenged. As an example, the comment
states that physicians cite the correlation between the one-second
Forced Expiratory Volume and the Maximum Voluntary Ventilation as a
basis for invalidating a
[[Page 54975]]
pulmonary function test, even though the MVV is not a required part of
the test. In the Department's view, the quality standards provide
factfinders with flexibility in their examination of the medical
evidence of record. If an alleged flaw in medical evidence is not
relevant to the necessary test results, the factfinder may properly
ignore that flaw. The Department's quality standards, however, are not
intended to serve as the sole basis upon which medical evidence may be
evaluated. Instead, parties are free to develop any evidence that
pertains to the validity of the medical evidence in order to provide
the factfinder with the best evidence upon which to base a finding
regarding the miner's physical condition.
(d) Two comments are concerned that the quality standards could
result in the exclusion of a miner's hospitalization and/or medical
treatment records, or a report of biopsy or autopsy. Section 718.101,
however, makes the quality standards applicable only to evidence
``developed * * * in connection with a claim for benefits'' governed by
20 CFR Parts 725 and 727. Therefore, the quality standards are
inapplicable to evidence, such as hospitalization reports or treatment
records, that is not developed for the purpose of establishing, or
defeating, entitlement to black lung benefits.
(e) One comment advocates permitting consideration of nonconforming
tests which produce clinical results comparable to conforming tests.
This suggestion is rejected for the reasons expressed in paragraph (b):
failure to comply with the applicable quality standards deprives the
evidence of its probative worth. Moreover, a nonconforming test which
produces results similar to a conforming test does not significantly
enhance the fact-finding process, given the availability of the
technically accurate results.
(f) One comment would require the Department to notify a party who
submits nonconforming evidence, and afford an opportunity to
rehabilitate the evidence. This requirement is unnecessary. Each party
is responsible for developing evidence in support of its position which
complies with the quality standards. Moreover, proposed Sec. 725.406
does impose a duty on the district director to ensure that the medical
examination sponsored by the Department is valid and conforming. If the
district director identifies any deficiency in that examination, he
must notify the physician and the miner, and take reasonable steps to
correct that deficiency. Finally, evidence may be submitted up to
twenty days before the formal hearing up to the limits provided in
proposed Sec. 725.414. If the opposing party submits evidence in
rebuttal, proposed Sec. 725.414 will permit the party that proffered
the original evidence to attempt to rehabilitate evidence by submitting
an additional report from the preparer of the original report.
(g) Other comments oppose the use of quality standards in general
terms. For the reasons expressed in the preamble to the proposed
regulations, 62 FR 3341-42 (Jan. 22, 1997), the Department believes
that such standards are necessary to ensure the development of reliable
and technically accurate evidence for the adjudication of claims.
Several comments express general support for requiring all parties to
develop their medical evidence in conformance with the relevant quality
standards.
20 CFR 718.103
(a) One physician who testified at the Department's Washington,
D.C. hearing objected to the proposal, set forth in Appendix B to Part
718, that would have precluded miners undergoing pulmonary function
testing from taking an initial inspiration from room air and instead
would have required an initial inspiration from the spirometer.
Transcript, Hearing on Proposed Changes to the Black Lung Program
Regulations (July 22, 1997), p. 306 (testimony of Dr. David James).
Under questioning by the Department's medical consultant, Dr. Leon
Cander, Dr. James stated that use of the flow-volume loop would be more
widely acceptable than the Department's proposal prohibiting an initial
open-air inspiration. Transcript, pp. 319-320. After careful
consideration, the Department agrees that the flow-volume loop may
offer a more reliable method of ensuring valid, verifiable results in
pulmonary function testing, and proposes to revise Sec. 718.103 in
order to require that the flow-volume loop be used for every pulmonary
function test administered to establish or defeat entitlement under the
Black Lung Benefits Act. Spirometers capable of producing a flow-volume
loop, and of electronically deriving a set of tracings showing volume
versus time, are in use in a number of clinics and facilities
specializing in the treatment of pulmonary conditions. While this
notice of proposed rulemaking is open for public comment, the
Department intends to conduct a survey of those clinics and facilities.
Among the information the Department will seek is the extent to which
they already use spirometers capable of producing flow-volume loops.
The Department further notes that for clinics that do not already
possess such a spirometer, the cost is less than $2,000. Because the
use of flow-volume loops will increase the reliability of the pulmonary
function study evidence submitted in black lung claims with only
minimal cost, the Department proposes that all pulmonary function tests
conducted after the effective date of the final rule be submitted in
this form. Proposed changes have been made to subsections (a) and (b),
as well as Appendix B, to accomplish this result. The Department
invites comment on these changes.
(b) Dr. James also observed that the language of subsection (a) is
misleading in suggesting that pulmonary function testing may produce
either a Forced Vital Capacity (FVC) or a Maximum Voluntary Ventilation
(MVV) value. Transcript, Hearing on Proposed Changes to the Black Lung
Program Regulations (July 22, 1997), pp. 304-5 (testimony of Dr. David
James). Dr. James noted that a test must produce an FVC value in order
to obtain a Forced Expiratory Volume for one second (FEV1), which is
required by the regulation. The Department agrees, and has proposed
revising subsection (a) accordingly.
(c) The Department also proposes to revise subsection (b) in order
to conform the regulation to the requirements of Appendix B. Currently,
section 718.103(b) requires that three tracings of the MVV be performed
unless the largest two values of the MVV are within 5 percent of each
other. 20 CFR 718.103(b). Appendix B, however, provides that MVV
results will be considered to have excessive variability if the two
largest values vary by more than 10 percent. The Department proposes to
adopt the 10 percent standard uniformly.
(d) Two comments request the Department to amend section 718.103 to
ensure that a miner's failure to produce a valid MVV value will not
affect the validity of the FEV1 and FVC values. The Department agrees
that the validity of the two tests should be assessed independently.
The proposed change to subsection (a) will highlight the optional
nature of the MVV test. Both comments also suggest that the failure of
a test report to meet all of the requirements of subsection (b), such
as the DOL claim number, should not wholly invalidate a test. Like
other medical evidence, pulmonary function tests will be subject to the
requirement of proposed Sec. 718.101 that they be in ``substantial
compliance'' with the Department's quality standards. In a particular
case, the parties remain free
[[Page 54976]]
to argue that a report's failure to meet certain technical requirements
contained in the quality standards should not necessarily invalidate
the report. The Department does not believe, however, that it would be
appropriate to wholly remove these requirements from its quality
standards.
(e) One commenter observes that pulmonary function tests are not
appropriate in all cases, noting that such testing may pose a danger to
the health of some claimants. Section 718.103 does not affirmatively
require the performance of pulmonary function tests, but merely sets
forth the standards applicable to such studies, if performed. The
Department agrees, however, that there may be cases in which
performance of a pulmonary function test may be medically
contraindicated. As a result, the Department has proposed revising
Sec. 718.104(a)(6) to recognize that a medical report may not be
excluded from consideration simply because the claimant's condition
does not allow a physician to administer a pulmonary function test. The
Department has also proposed reinstating language in
Sec. 718.204(b)(2)(iv) that was inadvertently deleted from its initial
proposal, 62 FR 3377 (Jan. 22, 1997).
20 CFR 718.104
(a) One commenter objects to the requirement in subsection (a)(6)
that all medical reports contain the results of pulmonary function
testing. The commenter notes that in some cases, a miner may be
physically unable to perform a pulmonary function test, or such a test
may be medically contraindicated. The Department agrees, and has
proposed revising subsection (a)(6) in order to recognize this
possibility. When a miner cannot take a pulmonary function test, a
physician writing a medical report must substantiate his conclusion(s)
with other medically acceptable clinical and laboratory diagnostic
techniques. This proposed addition merely recognizes the Department's
longstanding position that pulmonary function tests may be medically
contraindicated. The current regulation at 20 CFR 718.204(c)(4), which
provides that a reasoned medical judgment may establish the presence of
a totally disabling respiratory or pulmonary impairment, expressly
recognizes that pulmonary function tests may be contraindicated.
Similarly, the 1980 discussion accompanying promulgation of 20 CFR
718.103 acknowledged the same point: ``If the physician believes that
pulmonary function testing would impose a risk to the patient's well-
being, the physician should so state and refuse to have the patient
perform the pulmonary function tests.'' 45 FR 13682 (Feb. 29, 1980).
(b) Several commenters request that the regulation recognize that a
treating physician's opinion may be used to establish all elements of a
miner's entitlement to benefits. Although the proposed regulation was
not intended to restrict the use of such a report, the Department has
revised subsection (d) to explicitly list the elements of entitlement
which a treating physician's opinion may establish.
(c) Several commenters suggest that the Department accept a
physician's statement as to the nature and duration of his relationship
with the miner, and the frequency and extent of his treatment of the
miner. The Department agrees that a claimant should not have to produce
additional proof documenting these factors beyond that provided in the
four corners of the physician's report unless the opposing party
supplies credible evidence that demonstrates that the physician's
statement is mistaken. The Department has therefore proposed an
addition to subsection (d)(5) to make its intent clear.
(d) Proposed paragraph (d), which would allow a fact-finder to give
controlling weight to the opinion of a treating physician provided
certain conditions are met, elicited a great deal of comment. Many
commenters supported the proposal, noting that a treating physician has
a greater familiarity with the miner's physical condition than a doctor
who has only seen him once. Others opposed giving special credence to
``small-town'' doctors without special expertise or training in
respiratory or pulmonary disorders. Others simply expressed general
opposition to the proposal. In the preamble accompanying its initial
proposal, the Department explained that the proposed regulation
attempted to codify existing case law and drew on a similar regulation
adopted by the Social Security Administration, 20 CFR 404.1527(d)(2).
See 62 FR 3338, 3342 (Jan. 22, 1997). The Department specifically
invites comment on alternative methods for determining when a treating
physician's opinion is entitled to controlling weight, including
whether to adopt the Social Security Administration's rule.
(e) Several commenters suggest that the proposed subsection (d)(5)
is unnecessary and undermines any Departmental attempt to give a
treating physician's opinion controlling weight. They request that the
Department delete certain language in subsection (d)(5), which requires
the factfinder to consider not only the treating physician's
documentation and reasoning but also the other relevant evidence of
record in determining whether the treating physician's opinion is
entitled to controlling weight. These commenters would have the finder
of fact credit a treating physician's opinion which meets the criteria
in (d)(1)-(4) and is documented and reasoned without regard to the
other relevant evidence of record. Another comment suggests that the
Department has already accomplished this result, in violation of
section 413(b) of the Act, 30 U.S.C. 923(b). The Department does not
accept either suggestion. The purpose of the regulation is not to limit
a factfinder's consideration of any properly admitted medical or other
relevant evidence. Indeed, to do so might result in a mechanistic
crediting of a treating physician's opinion which the courts have
cautioned the Department to avoid. See Sterling Smokeless Coal Co. v.
Akers, 131 F.3d 438, 441 (4th Cir. 1997); 62 FR at 3342 (Jan. 22,
1997). Rather, the proposed regulation would mandate only that the
factfinder recognize that a physician's long-term treatment of the
miner may give that physician additional insight into the miner's
respiratory or pulmonary condition.
(f) Several commenters oppose any rule suggesting treating
physicians' opinions may be given controlling weight. They argue that a
factfinder's evaluation of a medical opinion should be based solely on
the documentation and reasoning of that opinion as well as the
qualifications of the physician. As the Department noted in its initial
notice of proposed rulemaking, 62 FR 3342 (Jan. 22, 1997), special
weight may be given a treating physician's opinion because that
physician has been able to observe the miner over a period of time, and
therefore may have a better understanding of the miner's physical
condition. Although the factfinder must still evaluate the treating
physician's report in light of all of the other relevant evidence of
record, he should nevertheless be aware of the additional insight that
a treating physician may bring to bear on the miner's respiratory or
pulmonary condition.
(g) Some commenters suggest that the ``treating physician'' rule
should be removed from Sec. 718.104 and made a separate regulation. One
suggests that its current placement appears to require that the
treating physician's opinion must conform to the quality standards
applicable to a report of physical examination. The Department intends
that all reports of physical examination, including a report submitted
by the
[[Page 54977]]
miner's treating physician, conform to the quality standards set forth
in Sec. 718.104 if they are to be sufficient to establish or refute
entitlement. The Department thus does not agree that subsection (d),
governing treating physicians' opinions, should be made a separate
regulation.
(h) Several commenters state that the miner should be able to
submit his treating physician's opinion without regard to the
limitation on the amount of evidence each party would be able to submit
under Sec. 725.414. These commenters argue that claimants, who are
often unrepresented at the earliest stages of claims processing, will
submit opinions from their treating physicians that do not conform to
the Department's quality standards. The Department recognizes that the
limitation on documentary medical evidence could have a substantial
impact on unrepresented claimants who submit reports prematurely.
Although the Department cannot agree to provide claimants with the
opportunity to submit additional reports, the Department takes very
seriously its obligation to inform all claimants of the evidentiary
limitations in language that is clear and easily understood. In
addition, as set forth in the proposed revision of Sec. 725.406, the
Department intends to make the objective test results from each miner's
section 413(b) pulmonary evaluation available to his treating physician
at the miner's request. By providing these test results to the treating
physician, the Department hopes to ensure that the ensuing opinion is
as well documented as the other medical opinions of record and meets
the Sec. 718.104 quality standard.
(i) Several commenters argue that the terms ``treating physician''
and ``controlling weight'' are not defined. The intent of subsection
(d), however, is not to create a strict rule to determine the outcome
of a factfinder's evaluation of the medical evidence. Instead, the
Department's goal is simply to require the factfinder to recognize the
additional weight to which a physician's opinion may be entitled, in
light of all of the other relevant evidence of record, where that
physician has observed and treated the claimant over a period of time.
(j) Several commenters object to certain language the Department
used in the preamble of its initial notice of proposed rulemaking to
explain its proposed revisions to Sec. 718.104. In the ``Summary of
Noteworthy Proposed Changes,'' 62 FR 3339 (Jan. 22, 1997), the
Department indicated that in evaluating a treating physician's opinion,
a factfinder ``must'' consider, among other things, the physician's
training and specialization. The Department did not intend to suggest
that a factfinder's failure to consider such factors would necessarily
represent reversible error. Only when a party raises the issue, for
example, in the context of comparing the credentials of physicians
offering contrary opinions, would the factfinder be required to
consider such a factor. Moreover, even under such circumstances, a
physician's training and specialization are only one factor for the
factfinder to weigh in his evaluation of this evidence.
(k) One commenter states that the quality standard applicable to
medical reports should not require that the report include a chest X-
ray. The Department disagrees. A chest X-ray, administered and read in
accordance with Sec. 718.102, is an important component of any
evaluation for pneumoconiosis. Although a physician remains free to
explain an opinion contrary to the medical testing that he conducted or
reviewed, he must nevertheless have the benefit of that testing and
account for its results. The requirement set forth in Sec. 718.101,
that all evidence must be in ``substantial compliance'' with the
applicable quality standards, affords all parties the opportunity to
establish the reliability of any evidence notwithstanding its failure
to strictly conform to the quality standards.
(l) Two commenters request that the Department remove the clause
from subsection (c) that limits the factfinder's use of non-conforming
evidence in cases in which the miner is deceased and the physician is
unavailable to clarify or correct his report. In such cases, the
factfinder may consider a non-conforming medical report only if the
record does not contain another conforming report. In this way, the
Department hopes to ensure that entitlement determinations are based on
the best quality medical evidence possible.
(m) One comment requests that the Department include ``cardio-
pulmonary exercise testing'' as an ``other procedure[]'' under
subsection (b). The Department does not intend that subsection (b)
contain an exclusive list of medically acceptable procedures that may
be used by a physician in the course of a physical examination. A
physician is free to use any test, including cardio-pulmonary exercise
testing, if he believes that it would aid in his evaluation of the
miner.
20 CFR 718.105
(a) One comment directed toward Appendix C is also relevant to
paragraph (c)(6). The comment notes that the correct nomenclature for
partial pressure of oxygen and carbon dioxide is an upper-case ``P'',
not the lower-case ``p'' currently in use. The comment is correct, and
the reference to the partial pressures will be changed.
(b) Four comments oppose proposed paragraph (d), which requires the
claimant to obtain a physician's opinion that a qualifying blood gas
study conducted during a miner's terminal illness reflects a chronic
respiratory or pulmonary condition caused by coal dust exposure. The
comments suggest that qualifying scores should be presumed indicative
of a totally disabling respiratory impairment unless the party opposing
the claim produces evidence linking the test results to some other
condition. While recognizing the concerns expressed by the comments,
the Department nevertheless believes that paragraph (d) imposes an
appropriate evidentiary burden on the claimant. Arterial blood gas
studies conducted during a terminal illness hospitalization may be
especially susceptible to producing low values unrelated to chronic
respiratory or pulmonary disease. Consequently, reliance on such
studies should be predicated on an additional showing that the
qualifying (or abnormal) test results can be medically linked to
chronic lung disease. One comment supported this proposal.
(c) Two comments object to the requirement in paragraph (d) that
the chronic respiratory or pulmonary impairment demonstrated by the
``deathbed'' blood gas study must also be ``related to coal mine dust
exposure.'' The Department agrees. The primary objective behind
paragraph (d) is to ensure a connection between the qualifying blood
gas values and a chronic respiratory or pulmonary impairment, rather
than some other acute pathologic cause incidental to the miner's
terminal illness. Thus, paragraph (d) addresses only the existence of a
chronic respiratory or pulmonary impairment itself, not its cause.
Including a requirement linking the chronic impairment to coal mine
dust exposure is therefore inappropriate for purposes of Sec. 718.105.
The claimant must still prove that any totally disabling respiratory or
pulmonary impairment demonstrated by these blood gas study results
arose out of coal mine employment in order to receive benefits, 20 CFR
718.204(c)(1). Paragraph (d) has been revised to delete
[[Page 54978]]
the phrase ``related to coal mine dust exposure.''
20 CFR 718.106
(a) Five comments urge the Department to restore the current
paragraph (c), 20 CFR 718.106(c), which was omitted from the proposed
regulation. This paragraph provides that the negative findings on a
biopsy are not conclusive evidence that pneumoconiosis is absent, while
positive findings do constitute evidence of the disease. The omission
was inadvertent, and paragraph (c) will be restored in the final rule.
(b) Two comments oppose the requirement in paragraph (a) that the
autopsy protocol must include a gross macroscopic inspection of the
lungs. The comments suggest that the requirement would implicitly
preclude a pathologist from submitting an opinion based exclusively on
a review of microscopic tissue samples. Paragraph (a) was not altered
when the Department proposed changes to Sec. 718.106. This provision
only requires macroscopic findings for purposes of the autopsy itself;
no such findings are required for a reviewing physician. Consequently,
a physician other than the autopsy prosector may submit an opinion
based exclusively on the microscopic tissue samples. No change is
necessary to permit such opinions.
(c) Several comments urge the Department to adopt the criteria for
diagnosing pneumoconiosis by autopsy or biopsy generated by the
American College of Pathologists and Public Health Service in 1979. The
Department has previously declined to promulgate specific pathological
standards for diagnosing pneumoconiosis by autopsy or biopsy. 45 FR at
13684 (Feb. 29, 1980); 48 FR at 24273 (May 31, 1983). Furthermore, the
record does not contain any evidence addressing, or establishing, a
consensus in the medical community about the accepted standards for
diagnosing pneumoconiosis by autopsy or biopsy. Although the comment
refers to Kleinerman et al., ``Pathologic Criteria for Assessing Coal
Workers' Pneumoconiosis,'' in the Archives of Pathology and Laboratory
Medicine (June 1979), the record does not establish whether this
article reflects the current prevailing standards for diagnosing
pneumoconiosis. The recommendation is therefore rejected.
20 CFR 718.107
(a) One comment suggests modifying the reference to ``respiratory
impairment'' in paragraph (a) to ``respiratory or pulmonary
impairment.'' The Department accepts this suggestion because the
current paragraph (a) refers to ``respiratory or pulmonary
impairment,'' and the omission of ``pulmonary'' was inadvertent.
Another comment recommended adding disability and disability causation
to the list of issues for which a party may submit ``other medical
evidence.'' Paragraph (a) is unchanged from the current provision,
except as described in the previous discussion, and satisfactorily sets
forth the general purposes for which ``other medical evidence'' may be
offered. The suggested change is therefore unnecessary.
(b) One comment supports the addition of proposed paragraph (b).
Subpart C
20 CFR 718.201
(a) In its initial notice of proposed rulemaking, 62 FR 3343, 3376
(Jan. 22, 1997), the Department proposed revising the definition of the
term ``pneumoconiosis'' to recognize the progressive nature of the
disease. The Department also proposed clarifying the existing
definition to make clear that obstructive lung disease may fall within
the definition of pneumoconiosis if it is shown to have arisen from
coal mine employment. The proposal would not alter the current
regulations' requirement that each miner bear the burden of proving
that he has pneumoconiosis, 20 CFR 718.403, 725.202(b); proposed
Secs. 725.103, 725.202(d)(2)(i). Thus, notwithstanding the proposed
revision, in order to demonstrate that he has pneumoconiosis, each
miner would be required to prove that his lung disease arose out of
coal mine employment. If a miner's chest X-rays, autopsy or biopsy
demonstrate the presence of the disease, and the miner has at least ten
years of coal mine employment, he is aided by a statutory presumption
that his pneumoconiosis arose out of coal mine employment. 30 U.S.C.
921(c)(1). If, however, the miner fails to demonstrate the existence of
pneumoconiosis by means of X-ray, biopsy or autopsy, he must prove that
his lung disease arose out of coal mine employment in order to carry
his burden of proof and establish that he has pneumoconiosis.
A number of commenters representing coal mine operators and the
insurance industry object strongly to both revisions, arguing that the
Department lacks the authority to elaborate on the statute's definition
of pneumoconiosis, and that, in any event, the Department had violated
the statute by failing to consult with the National Institute for
Occupational Safety and Health (NIOSH) before proposing the changes. 30
U.S.C. 902(f)(1)(D). The commenters also argue that the Department's
proposed revision lacks a sound medical basis and would therefore
unjustifiably increase the number of claims approved. In support of
their arguments, these commenters presented testimony at the
Department's Washington, DC, hearing from a panel of physicians with
expertise in pulmonary medicine. Transcript, Hearing on Proposed
Changes to the Black Lung Program Regulations (July 22, 1997), pp. 19-
83.
The Department also received comments, as well as testimony,
supporting the proposed changes from black lung associations, miners,
and several physicians with expertise in pulmonary medicine. Among the
favorable comments was one from NIOSH, which approved both aspects of
the Department's proposed revision to Sec. 718.201. In so doing, NIOSH
referenced its own 1995 publication, the same document that the
Department had cited in its initial notice of proposed rulemaking,
``National Institute for Occupational Safety and Health, Occupational
Exposure to Respirable Coal Mine Dust,'' Secs. 4.1.2, 4.2.2 et seq.
(1995). 62 FR 3343 (Jan. 22, 1997).
NIOSH was created by the Occupational Safety and Health Act ``in
order to carry out the policy set forth in section 651'' of that Act as
well as to perform certain functions in support of the Occupational
Safety and Health Administration. 29 U.S.C. 671. Among its other
provisions, section 651 encourages the Occupational Safety and Health
Administration to ``explor[e] ways to discover latent diseases,
establish [] causal connections between diseases and work in
environmental conditions, and conduct [] other research relating to
health problems.'' 29 U.S.C. 651(b)(6). Accordingly, Congress created
NIOSH as a source of expertise in occupational disease and as an expert
in the analysis of occupational disease research. Given the widely
divergent comments received from medical professionals on this proposed
regulation, the Department sought additional guidance from NIOSH by
providing it with all of the comments and testimony the Department had
received relevant to the proposed revisions to Sec. 718.201. The
Department requested that NIOSH advise it whether any of the material
altered that agency's original opinion.
NIOSH concluded as follows:
[[Page 54979]]
The unfavorable comments received by DOL do not alter our
previous position: NIOSH scientific analysis supports the proposed
definitional changes. Research indicates that the proposed changes
are reasonable and could be incorporated to further refine the
definition of pneumoconiosis in the BLBA regulations.
Letter from Dr. Paul Schulte, Director, Education and Information
Division (Dec. 7, 1998). In addition to the 1995 NIOSH publication, Dr.
Schulte cited several recent studies and other sources: ``Coal mining
and chronic obstructive pulmonary disease: a review of the evidence''
[Coggon and Newman-Taylor 1998]; ``The British Coal Respiratory Disease
Litigation'' [Judgment of Mr. Justice Turner]; ``Progression of simple
pneumoconiosis in ex-coalminers after cessation of exposure to coalmine
dust'' [Donnan et al. 1997]; ``Adverse effects of crystalline silica
exposure'' [American Thoracic Society (ATS) 1997]; ``Risk of silicosis
in a Colorado mining community'' [Kriess and Zehn 1996]; and ``Risk of
silicosis in a cohort of white South African gold miners'' [Hnizdo and
Sluis-Cremer 1993]. He concluded as follows:
These publications provide additional support for the NIOSH
position stated in the August 20, 1997 letter: ``NIOSH continues to
support the proposed amendment to Section 718.201 to include chronic
obstructive pulmonary disease in the definition of pneumoconiosis;
NIOSH also supports the revision of the definition of pneumoconiosis
to reflect the scientific evidence that pneumoconiosis is an
irreversible, progressive condition that may become detectable only
after cessation of coal mine employment, in some cases.''
Given this NIOSH review and conclusion, the Department sees no
scientific or legal basis upon which to alter its original proposal. To
the extent that the Department was required to consult with NIOSH, it
has now done so. Finally, as addressed elsewhere in this proposal, the
Department believes that it possesses the statutory authority to
promulgate a legislative regulation defining the term
``pneumoconiosis.'' See Old Ben Coal Co. v. Scott, 144 F.3d 1045, 1048
(7th Cir. 1998), citing Peabody Coal Co. v. Spese, 117 F.3d 1001, 1009-
1010 (7th Cir. 1997) (en banc).
(b) One commenter objects to the proposed definition of ``legal
pneumoconiosis'' on the ground that Sec. 718.202(a)(2) does not contain
the requirement that the covered disease must be a ``dust'' disease of
the lung. The commenter also believes that this definition would
include all obstructive pulmonary disease. The Department disagrees
with both points. Section 718.201 begins in paragraph (a) with the
statutory definition of pneumoconiosis, stating that pneumoconiosis
means a chronic ``dust'' disease of the lung and its sequelae.
Paragraph (a)(2) is a subdivision of the introductory paragraph and in
no way contradicts it. In fact, by its very terms, the proposed
definition of pneumoconiosis would cover only that lung disease arising
out of coal mine employment, i.e., lung disease significantly related
to, or substantially aggravated by, dust exposure in coal mine
employment. Sec. 718.201(b).
(c) Two commenters argue that Congress rejected an amendment to the
definition of pneumoconiosis that would have included obstructive lung
disorders, and that the Department therefore lacks the authority to
make such a change. Above, the Department explained that Congress's
consideration of, but failure to enact, legislation on particular
subjects does not bar the Department from promulgating regulations on
those subjects, provided the Department is acting within the scope of
Congress's grant of regulatory authority. Thus, the Department does not
agree that Congressional inaction renders invalid its proposed
amendment of the definition of ``pneumoconiosis.''
20 CFR 718.204
(a) In reviewing the comments submitted in response to the initial
notice of proposed rulemaking, the Department realized that it had
inadvertently omitted language from the current version of 20 CFR
718.204(c)(4) setting out circumstances under which a claimant may
establish total disability by means of a medical report. The Department
intended no change in the regulation's meaning and has restored the
omitted language to proposed Sec. 718.204(b)(2)(iv).
(b) A number of commenters object to the Department's proposed
amendment to subsection (a), while others support it. That revision is
intended to ensure that disabling nonrespiratory conditions are not
considered a bar to entitlement when the miner also suffers from
totally disabling pneumoconiosis. As the Department explained in its
initial notice of proposed rulemaking, the revision announces the
Department's preference for the Sixth Circuit's decision in
Youghiogheny & Ohio Coal Co. v. McAngues, 996 F.2d 130 (6th Cir. 1993),
cert. den., 510 U.S. 1040 (1994), over the Seventh Circuit's decision
in Peabody Coal Co. v. Vigna, 22 F.3d 1388 (7th Cir. 1994). 62 FR 3344-
45 (Jan. 22, 1997). After preparation of the Department's proposal, the
Sixth Circuit held, for the first time in a Part 718 case, that a miner
may not be denied black lung benefits simply because he may also be
totally disabled by a coexisting non-respiratory impairment. Cross
Mountain Coal Co., Inc. v. Ward, 93 F.3d 211, 216-217 (6th Cir. 1996).
The commenters have provided no basis upon which to alter the
Department's original proposal.
(c) A number of commenters object to the Department's proposal to
revise subsection (b)(1) to codify the Department's position that a
miner is entitled to benefits only if his respiratory or pulmonary
impairment is totally disabling. The commenters urge that the
Department adopt a ``whole person'' approach, allowing an award of
benefits if pneumoconiosis contributed at least in part to the miner's
overall disability, considering both respiratory and nonrespiratory
impairments. Although the commenters argue that the Department's
position violates the statute, the Third and Fourth Circuits have
reached a contrary conclusion. Beatty v. Danri Corp. & Triangle
Enterprises, 49 F.3d 993 (3d Cir. 1995); Jewell Smokeless Coal Corp. v.
Street, 21 F.3d 241 (4th Cir. 1994). Because the commenters offer no
other basis upon which to amend the Department's proposal, subsection
(b)(1) has not been changed.
(d) A number of commenters take issue with the Department's
proposal to define disability causation in subsection (c). Several
commenters state that the Department has no authority to issue such a
regulation, suggesting that the statutory language is clear. The
Department disagrees. The statute authorizes the payment of benefits
``[i]n the case of total disability of a miner due to pneumoconiosis,''
30 U.S.C. 922(a)(1), and explicitly provides that ``[t]he term ``total
disability'' has the meaning given it by regulations * * * of the
Secretary of Labor under part C of this title * * *.'' 30 U.S.C.
902(f)(1). Even absent such an explicit grant of rulemaking authority,
Congress' use of the broad phrase ``due to'' leaves significant
questions in resolving the issue of disability causation. In Atlanta
College of Medical and Dental Careers, Inc. v. Riley, 987 F.2d 821
(1993), the D.C. Circuit noted that the Secretary of Education was
authorized to promulgate interpretative regulations under the Student
Loan Default Prevention Initiative Act. That statute authorized the
Secretary to calculate a default rate from participating schools, but
required him to exclude loans which ``due to improper servicing or
collection, would result in an inaccurate or incomplete calculation.''
Addressing Congress' use of the phrase ``due to,'' the court held:
[[Page 54980]]
And must the school show ``but for'' causation, proximate
causation or merely some reasonable link? The statute itself
provides no answers to these riddles; accordingly, under Chevron's
second step, we would defer to any reasonable interpretation of the
``due to'' language that the Secretary proffered. See also Jerry
Mashaw, A Comment on Causation, Law Reform, and Guerilla Warfare, 73
Geo. L. Rev. 1393, 1396 (1985) (identifying the ``cause'' of
something necessarily implicates a policy choice).
Id. at 830. The Department's definition of disability causation under
the Black Lung Benefits Act is similarly necessary and well within the
scope of its regulatory authority.
Other commenters argue that the Department has selected the wrong
definition. Several commenters suggest that the Department delete the
word ``substantially'' from paragraph (c)(1). Another asks that the
standard be ``due at least in part.'' One commenter requests that the
Department add the word ``substantially'' to paragraphs (c)(1)(i) and
(c)(1)(ii). Several comments suggest that the term ``substantially
contributing'' is undefined, and urge that the Department set a
percentage of disability as the threshold, while another commenter asks
that the Department use the term ``actual contributing cause'' in order
to bar the award of benefits where pneumoconiosis has made only a de
minimis contribution to total disability.
The Department discussed its selection of the ``substantially
contributing cause'' standard in its initial notice of proposed
rulemaking. 62 FR 3345 (Jan. 22, 1997). The Department explained that
its selection was intended to codify a body of caselaw from various
federal appellate courts that differed very little in determining
disability causation. In addition, the proposal paralleled the standard
used by the Department to determine whether a miner's death was caused
by pneumoconiosis. Because the language of the death standard is a
direct reflection of Congressional intent, see 48 FR 24275-24278 (May
31, 1983), the Department believes that it should be used for
disability causation as well. Finally, the Department does not agree
that a percentage threshold is appropriate. As the Department
previously explained, the ``substantially contributing cause'' standard
requires that pneumoconiosis make a tangible and actual contribution to
a miner's disability. The standard is also further defined in the
proposed regulation. It requires that pneumoconiosis must either have
an adverse effect on the miner's respiratory or pulmonary condition or
worsen an already totally disabling respiratory or pulmonary
impairment. Whether a particular miner meets the ``substantially
contributing cause'' standard is a matter to be resolved based on the
medical evidence submitted in each case.
Finally, several commenters suggest that the Department's proposal
will allow compensation where a miner's totally disabling respiratory
impairment has been caused by cigarette smoking. Neither the Black Lung
Benefits Act, nor the court of appeals decisions, nor the Department's
proposed regulation allows benefits to be awarded where a miner's
totally disabling respiratory impairment is caused solely by cigarette
smoking. The courts have held irrelevant, however, the existence of
causes of a miner's total respiratory or pulmonary disability in
addition to pneumoconiosis. See Jonida Trucking, Inc. v. Hunt, 124 F.3d
739, 744 (6th Cir. 1997) (coexisting heart disease). In such a case,
the miner meets the statutory and regulatory criteria for an award of
benefits.
20 CFR 718.205
(a) Several comments request that the Department reinstate
unrelated death benefits, that is, benefits to surviving spouses of
miners who were totally disabled due to pneumoconiosis at the time of
their death but who did not die due to pneumoconiosis. Although such
benefits were formerly available, Congress amended the Act in 1981 to
require that a surviving spouse who filed her claim on or after January
1, 1982 establish that the miner died due to pneumoconiosis. Pub. L.
97-119, 95 Stat. 1635, Sec. 203(a)(2), (3). The Department cannot issue
regulations contrary to the expressed will of Congress.
Another comment, however, suggests that the Department has done
just that by proposing that a surviving spouse may establish death due
to pneumoconiosis by proving that pneumoconiosis hastened the miner's
death. The Department disagrees. Rather, the Department has simply
proposed codifying a standard that has been unanimously adopted by the
federal courts of appeals, a fact recognized by other commenters. In
addition to the Third, Fourth, Sixth, and Seventh Circuit decisions
cited in the initial notice of proposed rulemaking, 62 FR 3345-3346
(Jan. 22, 1997), the Tenth and Eleventh Circuits have also deferred to
the Director's interpretation of the current regulation, and announced
their support for the standard that the Department is proposing to
codify. Northern Coal Co. v. Director, Office of Workers' Compensation
Programs, 100 F.3d 871, 874 (10th Cir.1996); Bradberry, v. Director,
Office of Workers' Compensation Programs, 117 F.3d 1361, 1365-1366
(11th Cir. 1997). The Department's proposal thus does no more than
recognize the decisions of appellate courts with jurisdiction over more
than 90 percent of the claims filed under the Black Lung Benefits Act.
The suggestion that the Department has violated Congressional intent is
simply incorrect.
(b) One commenter asks the Department to apply the standard set
forth in subsection (b)(2) to claims filed on or after January 1, 1982,
the effective date of the Black Lung Benefits Amendments of 1981.
Subsection (b)(2) permits an award of benefits in a survivor's claim
filed before January 1, 1982 if death was due to multiple causes,
including pneumoconiosis, and it is not medically feasible to
distinguish which disease caused death or the extent to which
pneumoconiosis contributed to the miner's death. This provision is
derived in substantial part from the presumption set forth in section
411(c)(2) of the Act, 30 U.S.C. 921(c)(2), and implemented by 20 CFR
718.304. Under section 411(c)(2), a deceased miner with ten or more
years of coal mine employment, who died from a respirable disease, is
presumed to have died due to pneumoconiosis. In implementing this
provision, the Secretary added Sec. 718.303(a)(1) to the regulations,
allowing death to be found due to a respirable disease if such disease
was one of several causes of the miner's death and it is not feasible
to determine which disease caused death or the extent to which the
respirable disease contributed to the cause of death. Section
718.205(b)(2) permitted an award under similar circumstances in cases
in which the miner had less than 10 years of coal mine employment, but
the survivor had established that pneumoconiosis was one of the
multiple causes of death. In 1981, Congress eliminated the section
411(c)(2) presumption for survivors' claims filed on or after January
1, 1982. Pub. L. 97-119, Sec. 202(b)(1). In promulgating regulations to
effectuate Congress's intent, the Department applied the same
limitation to subsection (b)(2). See comment (p), 48 FR 24278 (May 31,
1983). Because subsection (b)(2) is so closely connected with the
section 411(c)(2) presumption, the Department continues to believe that
it may not apply this regulatory provision to claims filed on or after
January 1, 1982.
[[Page 54981]]
Appendix B to Part 718
(a) The proposed changes to Appendix B are designed to implement
the Department's proposed requirement that physicians use the flow-
volume loop in reporting the results of pulmonary function tests. See
Explanation of proposed Sec. 718.103. The Department invites comment on
these changes.
(b) A number of commenters suggest that one Appendix provision is
unnecessarily restrictive. It requires that the two highest FEV1
results of the three acceptable tracings agree within 5 percent or 100
ml, whichever is greater. Appendix B(2)(ii)(G). They suggest that the
standard either be eliminated entirely, or that it be replaced with a
variability limit of 10 percent or 200 ml. One comment recommends that
the Department should have a separate standard for ensuring the
reliability of FVC results. As proposed, Appendix B limits the
variability only of FEV1 and MVV results.
The Department is reluctant to eliminate the Appendix B(2)(ii)(G)
standard entirely; the standard provides a baseline measurement which
serves to guarantee the reproducibility, and thus the validity, of each
conforming pulmonary function study. However, the Department recognizes
that there may be individuals who are physically unable to produce
results that fall within the 5 percent limit, but whose results are, in
the opinion of the physician administering the test, a valid reflection
of the individual's best effort to perform the test. Accordingly, the
Department invites comment as to how to maintain a standard that
guarantees the reproducibility of the FEV1 and FVC values, but also
allows consideration of valid FEV1 results in excess of the current 5
percent requirement.
(c) Several commenters argue that the Appendix B tables are too
stringent and should be revised. These tables set forth pulmonary
function test results which may establish that a miner's respiratory or
pulmonary impairment is totally disabling. The Black Lung Benefits
Reform Act of 1977 required the Department to consult with the National
Institute for Occupational Safety and Health in the development of
criteria for medical tests that accurately reflect total disability in
coal miners. 30 U.S.C. 902(f)(1)(D). On April 25, 1978, the Department
proposed the pulmonary function test criteria set forth in Appendix B,
setting the ``qualifying'' values for the FEV1 and MVV test at 60
percent of normal pulmonary function, as adjusted for sex, height, and
age. 43 FR 17730-31 (Apr. 25, 1978). When the Department published the
final Part 718 rules on February 29, 1980, it added tables for the FVC
test. 45 FR 13703-06 (Feb. 29, 1980). The Department also responded to
comments urging that the qualifying values be reduced, observing that
although there was no consensus on the correct values, the record
contained substantial support from experts for the 60 percent figure.
Id. at 13711. The Department did not re-propose the Appendix B tables
in its initial notice of proposed rulemaking, see 62 FR 3373 (Jan. 22,
1997) (noting that the tables in Appendix B remain unchanged), and the
commenters offer no medical support for the request that they be
revised. Consequently, the Department has not proposed any revision of
the table values.
20 CFR Part 725--Claims for Benefits Under Part C of Title IV of
the Federal Mine Safety and Health Act, As Amended
Subpart A--General
20 CFR 725.2
(a) The Department has made several technical changes to the
language of the proposed regulation to make the regulation easier to
read.
(b) This proposal changes Sec. 725.2(c) to add Sec. 725.351 to the
list of amended regulations which will apply only to claims filed after
the effective date of the final rule. The Department's proposal
requires the district director's development of a complete evidentiary
record identifying the proper responsible operator. Once a case is
referred to the Office of Administrative Law Judges, neither the
Director, OWCP, nor a potentially liable operator identified by the
district director will be able to submit any additional evidence on
issues relevant to the responsible operator question. For example, only
while a claim is pending before the district director may a potentially
liable operator contest that it was an operator after June 30, 1973,
that it employed the miner for one year, or that the miner's employment
included at least one working day after December 31, 1969,
Sec. 725.408. Accordingly, the district director must be able to obtain
all of the information necessary to meet the Department's burden of
proof under Sec. 725.495.
To aid the district director in gathering such information, this
proposal revises and streamlines Sec. 725.351, which grants district
directors the power to issue subpoenas duces tecum. A district director
will no longer be required to seek written approval from the Director,
OWCP, prior to issuing such a subpoena. See explanation of
Sec. 725.351. Because the revised regulations governing the
identification of responsible operators, Secs. 725.407-.408, will apply
only to newly filed claims, however, the district director's new
authority under Sec. 725.351 must be similarly limited. Accordingly,
Sec. 725.351 is added to the list of amended regulations which will not
be effective with respect to claims pending on the effective date of
the final rule.
(c) A number of comments request that the Department make the final
rule applicable to all pending claims. As the Department explained in
its original proposal, 62 FR 3347-48 (Jan. 22, 1997), however, it lacks
the statutory authority to make many changes retroactive. In addition,
certain changes, such as the limitation on the quantity of medical
evidence, would seriously disrupt the adjudication of currently pending
claims if they were made universally applicable.
(d) A number of commenters believe that the Department lacks the
authority to make any of the changes retroactive, particularly because
those changes will apply to subsequent claims filed by miners who have
previously been denied benefits. They argue that subsequent claims are
typically based on employment that ended many years ago, and that the
insurance industry is not permitted to charge additional premiums in
order to cover the increased liability that will result under the
Department's proposal. In support of their argument that the Department
is not permitted to effect such a change, they cite the Contract Clause
of the United States Constitution. The Contract Clause is in Section 10
of Article I, which is a series of prohibitions against actions by
state governments. In relevant part, it states that ``[n]o State shall
* * * pass any Bill of Attainder, ex post facto Law, or Law impairing
the Obligation of Contracts, or grant any Title of Nobility.'' The
Supreme Court has observed that ``[i]t could not justifiably be claimed
that the Contract Clause applies, either by its own terms or by
convincing historical evidence, to actions of the National
Government.'' Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 467
U.S. 717, 732, n. 9 (1984). Thus, the Contract Clause does not bar
Congress from enacting any legislation. Similarly, the Contract Clause
is inapplicable to the Secretary's rulemaking by its very terms, and
the comment has cited no precedent to the contrary.
Moreover, the Department does not agree that its proposed
rulemaking results in the impairment of any contracts. At the hearing
held in Washington, D.C., on July 22-23, 1997,
[[Page 54982]]
the Department heard testimony suggesting that the Supreme Court's
recent decision in United States v. Winstar, 518 U.S. 839 (1996),
prohibits the Department's regulatory efforts. At issue in Winstar was
Congress's enactment of legislation that effectively revoked promises
made by the Federal Home Loan Bank Board and the Federal Savings and
Loan Insurance Corporation to induce three thrift institutions to
acquire financially distressed savings and loans. Although the case did
not produce a majority opinion, a majority of the Justices concurred in
the holding that the United States was liable to the thrift
institutions for breach of contract. Justice Souter's plurality opinion
observed that the promises at issue were central to the institutions'
agreement to acquire the troubled savings and loans; absent the
government's promise, ``the very existence of their institutions would
then have been in jeopardy from the moment their agreements were
signed.'' 518 U.S. at 910.
The Department's regulatory revisions present a fundamentally
different case. Initially, the Department notes that Justice Souter
stated that the government's regulatory authority was unaffected by the
contracts: ``the agreements [at issue in that case] do not purport to
bind the Congress from enacting regulatory measures.'' 518 U.S. at 881.
Instead, the Court held, the agreements obligated the government to
assume the risk of loss, and thus be liable for damages, if the
regulations were changed. By contrast, the contracts purchased by the
coal mining industry to insure themselves against black lung claims
contain no provision requiring the Department to assume any risk of
loss. Although the Department prescribes the form of such contracts,
and the Black Lung Disability Trust Fund may be considered a
beneficiary of them, these are not contracts between the government and
a private party. Moreover, as reflected in the endorsement authorized
by the Department, Sec. 726.203, the contracts specifically recognize
the possibility that the Act may be amended while the policy is in
force, and place the risk of those amendments on the insurer. See
National Independent Coal Operators Association v. Old Republic
Insurance Company, 544 F. Supp. 520 (W.D. Va. 1982). The Department has
explained above that its rulemaking is fully consistent with, and
authorized by, the provisions of the Black Lung Benefits Act.
Accordingly, the Court's decision in Winstar presents no bar to the
Department's promulgation of regulations, and does not obligate the
Department to pay damages to the insurance industry.
(e) One comment urges the Department to adopt a bright-line test
making all of the revisions applicable only to claims filed after the
final rule becomes effective. In particular, the commenter points to
changes in Part 726 which will unfairly prejudice coal mine operators
that have purchased insurance in compliance with the existing
regulations. As the Department explained in its earlier notice of
proposed rulemaking, the only revisions which will apply to pending
claims are those which clarify the Department's longstanding
interpretation of the Act and the current regulations. 62 FR 3348 (Jan.
22, 1997). Those revisions are not considered retroactive. See Pope v.
Shalala, 998 F.2d 473, 483 (7th Cir. 1993). The Department believes
that they should be applied to all pending claims to ensure the claims'
uniform treatment. Moreover, the Department does not believe that the
changes to Part 726 will result in the imposition of any additional
liability on the part of coal mine operators in compliance with the
Act's insurance requirements.
20 CFR 725.101
(a) Several written comments and hearing statements oppose amending
the definition of ``benefits'' in Sec. 725.101(a)(6) to include the
cost of the medical examination of the claimant authorized under
Sec. 725.406 and subsidized by the Trust Fund. The opponents suggest
that the amended definition would impose the cost of the examination on
the claimant if he later decides to withdraw the claim or becomes
liable for the repayment of overpaid benefits. The Department
acknowledges the commenters' concerns, but assures them that the cost
of the examination, although a ``benefit'', cannot be shifted to the
claimant. In the preamble accompanying the proposed revision of
Sec. 725.306, the Department stated it ``will not require reimbursement
of the amount spent on the claimant's complete pulmonary evaluation as
a condition for withdrawing a claim.'' 62 FR 3351 (Jan. 22, 1997).
Similarly, a claimant who must repay overpaid ``benefits'' is not
liable for reimbursing the Trust Fund for the medical examination. An
overpayment encompasses payments to which the individual is ultimately
not entitled, 20 CFR 725.540, while each applicant for benefits is
entitled by virtue of the Black Lung Benefits Act to the complete
pulmonary examination. 30 U.S.C. 923(b). In addition, Sec. 725.522
contemplates that only payments made pursuant to an initial
determination of eligibility by the district director or pursuant to an
``effective order by a district director, administrative law judge,
Benefits Review Board, or court'' may be treated as an overpayment
pursuant to Sec. 725.540 in the event the claimant is ultimately found
ineligible for benefits. The cost of the initial pulmonary evaluation
is not such a payment. Consequently, the claimant cannot be required to
repay the cost of that examination whatever the outcome of the
adjudication of the claim.
(b) One comment opposes the revised definition of ``benefits'' in
subsection (a)(6) because it imposes liability for the examination on
the responsible operator if the claimant ultimately secures benefits.
The comment argues that the cost-shifting is not authorized by the
Black Lung Benefits Act. The Department, however, has consistently
taken the position that an operator found liable for the payment of the
claimant's benefits is also liable to the Trust Fund for the cost of
the initial pulmonary evaluation authorized by 30 U.S.C. 923(b). This
requirement is in the current regulations at 20 CFR 725.406(c). The
revision of Sec. 725.101(a)(6) merely makes this language consistent
with Sec. 725.406.
(c) The Department proposes to revise subsection (a)(6) in order to
include a cross-reference to Sec. 725.520(c), which defines the term
``augmented benefits.'' Because regulations that precede Sec. 725.520,
such as Sec. 725.210, also use the term ``augmented benefits,'' the
Department believes that the parties seeking a definition of that term
should be able to find an appropriate reference in Sec. 725.101.
(d) Three comments support the revised definitions of ``coal
preparation'' (Sec. 725.101(a)(13)) and ``miner''
(Sec. 725.101(a)(19)), which exclude coke oven workers from coverage of
the Black Lung Benefits Act.
(e) Two comments oppose the proposed revision of
Sec. 725.101(a)(31), which would exclude certain benefits paid from a
state's general revenues from the definition of ``workers' compensation
law.'' One comment supported the change. The opposing comments broadly
suggest the proposed change would adversely affect the Trust Fund by
making certain state benefits ineligible for offset against federal
benefits, creating uncertainty in benefits funding, and contradicting
the holding in Director, OWCP v. Eastern Associated Coal Corp., 54 F.3d
141 (3d Cir. 1995). The Department disagrees. The Black Lung Benefits
Act requires federal black lung benefits to be offset by any amount of
compensation received under state or
[[Page 54983]]
federal workers' compensation laws for disability or death due to
pneumoconiosis. In Eastern Associated Coal, the Third Circuit held that
the BLBA is ambiguous as to the meaning of a ``workers' compensation
law.'' The Court also held that the Director's long-standing practice
of excluding state-funded benefits from the ambit of ``workers'
compensation law'' was inconsistent with the plain meaning of the
implementing regulations. Finally, the Court suggested the agency ``has
the means and obligation to amend its regulations to provide for [an]
exception'' for state benefits funded through general revenues. 54 F.3d
at 150. The Department has therefore proposed to exercise its
regulatory authority and eliminate any perceived inconsistency between
the agency's position and the black lung program's implementing
regulations. The Department's position is entirely consistent with the
decision in Eastern Associated Coal; the Court held only that the
agency's practice was inconsistent with existing regulations, and not
that it was prohibited by the statute. Moreover, the Court invited the
Department to undertake the present course of action.
(f) One comment opposes the revised definition of ``year'' in
Sec. 725.101(a)(32) because it includes approved absences from work in
computing the length of time the miner worked for the coal company.
Case law has established the validity of including certain periods of
time when the miner is not working in establishing the duration of the
miner's work relationship with a coal company. Northern Coal Co. v.
Director, OWCP [Pickup], 100 F.3d 871, 876-877 (10th Cir. 1996); Boyd
v. Island Creek Coal Co., 8 Black Lung Rep. 1-458, 1-460 (1986); Verdi
v. Price River Coal Co., 6 Black Lung Rep. 1-1067, 1-1069/1-1070
(1984); cf. Thomas v. BethEnergy Mines, Inc., 21 Black Lung Rep. 1-10,
1-16/1-17 (1997) (upholding inclusion of sick leave in determining
length of miner's employment with operator, but rejecting Director's
position that sick leave cannot be counted in determining whether miner
was ``regularly'' employed during the year of employment with
operator). No reason for deviating from this precedent has been
offered.
(g) One comment broadly opposes the definition of the term ``year''
in subsection (a)(32), but identifies only one specific objection: the
commenter contends that use of the 125-day exposure standard is invalid
because of the reduced incidence of pneumoconiosis in current miners. A
current reduction in the occurrence of pneumoconiosis, assuming that
such a decline has occurred, is not a sufficient basis for revisiting
the exposure standard. The pool of potential claimants who may apply
for benefits under these regulations is not restricted to those
individuals mining coal over the recent past. Consequently, a decline
in the current incidence of the disease does not necessarily undermine
the 125-day standard.
(h) One comment objects to the use of wages, compared to annual
average wage rates, to calculate the miner's employment history for
purposes of determining a ``year'' of coal mine employment under
subsection (a)(32); two other comments generally support the
definition, but express concern over the undue reliance on Social
Security itemized wage earning records. All three comments emphasize
the potentially inaccurate information contained in the itemized
earnings records. No changes in the proposed definition are necessary
to alleviate these concerns. Section 725.101(a)(32) does not accord
special deference to any particular type of record for determining when
a miner worked or how much he earned during any given period of time.
In any specific case, a party may provide testimony or other evidence
as to the length of coal mine employment, amount of wages, or accuracy
or inaccuracy of any particular record.
(i) The Department is proposing one additional change to subsection
(a)(32). In order to account for leap years, which have 366 days
instead of 365, the Department proposes to use the larger figure in
computing a ``year'' when one of the days in the period at issue is
February 29.
Subpart B
20 CFR 725.209
The Department proposed a change to Sec. 725.209(a)(2)(ii) in its
initial notice of proposed rulemaking by adding a requirement that a
dependent child who is at least 18 years of age and not a student must
be under a disability which began before the age of 22 for purposes of
augmenting the benefits of a miner or surviving spouse. 62 FR 3390
(Jan. 22, 1997). This proposal changes Sec. 725.209(a)(2)(ii) to
eliminate the age requirement. The change implements the statutory
definition of ``dependent,'' as it pertains to a child. Section 402(a)
of the Black Lung Benefits Act (BLBA) defines a ``dependent child'' to
mean ``a child as defined in subsection (g) without regard to
subparagraph (2)(B)(ii) thereof[.]'' 30 U.S.C. 902(a)(1). The reference
to section 402(g)(2)(B)(ii) is the statutory requirement that a child
be disabled before the age of 22. By removing the reference to age for
purposes of a dependent child, Congress allowed any disabled child who
meets the remaining statutory criteria to be considered a dependent of
the miner or his widow without regard to when the child's disability
began. A miner or his widow may receive augmented benefits for up to
three dependents. 30 U.S.C. 922(a)(4). The Benefits Review Board has
reached the same conclusion concerning the intended operation of 30
U.S.C. 902(a)(1). See Hite v. Eastern Associated Coal Co., 21 Black
Lung Rep. 1-46 (1997); Wallen v. Director, OWCP, 13 Black Lung Rep. 1-
64 (1989). Finally, the change in the regulation effectuates a
distinction between classes of dependent children drawn by the statute.
In order for a child to establish dependency on a deceased miner as a
condition to receipt of benefits in his own right, the BLBA requires
the ``child'' to meet all the requirements of 30 U.S.C. 902(g). 30
U.S.C. 922(a)(3). These requirements include a deadline for the onset
of disability: either age 22 or, in the case of a student, before the
individual ceases to be a student. See also Sec. 725.221. A child/
beneficiary therefore must meet the age requirement for disability
while the child/augmentee is relieved of this burden under the BLBA and
the regulations. Hite, 21 Black Lung Rep. at 1-49; Wallen, 13 Black
Lung Rep. at 1-67-68. Accordingly, the proposed version of Sec. 725.209
is revised to reflect the statutory definition of ``dependent child''
and the distinction between a child/beneficiary and child/augmentee.
20 CFR 725.223
The Department proposed paragraph (d) in the initial notice of
rulemaking to create a vehicle for reentitling a miner's dependent
brother or sister whose eligibility terminates upon marriage, if that
marriage ends and the individual again meets all the criteria for
entitlement. 62 FR 3393 (Jan. 22, 1997). Upon further consideration,
the Department has concluded that permitting reentitlement in such
circumstances is contrary to longstanding and consistent agency policy.
20 CFR 725.223(c) (DOL regulation); 410.215(c), (d) (SSA regulation).
The only situation in which reentitlement is allowed involves a
surviving spouse or surviving divorced spouse who remarries after the
death of, or divorce from, the miner, but later regains single status
and satisfies the remaining criteria for eligibility. See response to
comments, Sec. 725.213. The Department has declined to extend similar
treatment to children who marry
[[Page 54984]]
because marriage is a permanent bar to their entitlement under the
statute. No reason exists to accord preferential treatment to the
miner's surviving dependent siblings. Once an otherwise eligible
brother or sister marries or remarries, entitlement terminates, and the
marriage operates as a bar to future entitlement. If the brother or
sister is already married when he or she becomes a dependent of the
miner, the fact of marriage does not preclude entitlement if the
brother or sister has not received any amount of support from his or
her spouse. Once support is provided, then the married brother or
sister loses eligibility. In either case, the termination of
entitlement is justified by the reasonable assumption that the
individual will receive financial support from the spouse during the
marriage, and rely on savings or other benefits acquired during the
marriage should it terminate. The Department therefore proposes to
remove paragraph (d) from Sec. 725.223.
Subpart C
20 CFR 725.309
(a) Numerous comments support this proposal, which simply reflects
the nearly unanimous holdings of the federal courts of appeals
affirming the Department's treatment of subsequent claims. The proposal
also brought responses from a number of commenters, however, who
generally oppose allowing claimants to file subsequent claims, and
argue that the Department's proposal would further expand the right to
file subsequent applications. Subsequent applications are filed more
than one year after the denial of a previous claim. They may be awarded
only if the claimant demonstrates that an applicable condition of
entitlement has changed in the interim. As the Department explained in
its initial proposal, the subsequent claims provision represents a
recognition of the progressive nature of pneumoconiosis. See 62 FR
3351-3353 (Jan. 22, 1997).
The limited nature of the Department's proposed revisions cannot be
overemphasized. The Third, Fourth, Sixth, and Eighth Circuits have
adopted the Department's position. Lovilia Coal Co. v. Harvey, 109 F.3d
445 (8th Cir. 1997), cert. denied, 118 S. Ct. 1385 (1998); Lisa Lee
Mines v. Director, OWCP, 86 F.3d 1358 (4th Cir. 1996); LaBelle
Processing Co. v. Swarrow, 72 F.3d 308 (3d Cir. 1995); Sharondale Coal
Co. v. Ross, 42 F.3d 993 (6th Cir. 1994). The Seventh Circuit's view is
substantially similar. Peabody Coal Co. v. Spese, 117 F.3d 1001 (1997).
Only the Tenth Circuit has adopted a contrary view. Wyoming Fuel Co. v.
Director, OWCP, 90 F.3d 1502 (10th Cir. 1996). The Department's
proposed regulation thus merely codifies caselaw that is already
applicable to more than 90 percent of the claimants who apply for black
lung benefits. In addition, as discussed earlier in this document, the
Department's revisions will not result in the automatic reopening of
claims, as was required by the Black Lung Benefits Reform Act of 1977,
or the de novo adjudication of claims, as would have been required by
H.R. 2108, the 1994 legislative initiative discussed in more detail
above. The 1977 Reform Act resulted in the reopening of over 100,000
claims. The Department estimated that H.R. 2108 would have resulted in
a substantial number of refilings based on its promise of de novo
adjudication, that is, adjudication without the need to establish that
the miner's condition has changed. By contrast, between January 1, 1982
and July 16, 1998, the Department received only 30,964 claims filed by
claimants who had previously been denied. Because the revised
regulations will offer no assistance to claimants whose condition has
not changed, it is not likely to encourage the filing of a large number
of additional subsequent claims.
Moreover, the Department's experience with subsequent claims
clearly demonstrates the need for allowing miners to file them. Of the
49,971 first-time claims filed by living miners between January 1, 1982
(the date upon which the Black Lung Benefits Amendments of 1981 took
effect) and July 16, 1998, 3,731, or 7.47 percent, were ultimately
awarded. In that same time period, the Department received 30,964
subsequent claims from miners who had previously been denied benefits
under the Act. Of those claims, 3,269, or 10.56 percent, were awarded.
These figures suggest that many miners file applications for benefits
before they are truly disabled. Elsewhere in this reproposal, the
Department has outlined the steps it intends to take in order to
provide claimants with a realistic view of their possible entitlement,
including better initial pulmonary evaluations and better reasoned
explanations of the denial of their claims. As a result of these steps,
the Department hopes that claimants will be able to assess more
accurately the strength of their applications throughout the process.
To automatically deny those who previously filed claims, however, would
unfairly penalize those miners who have truly become totally disabled
due to pneumoconiosis and would deprive them of the benefits to which
they may be entitled.
One commenter suggested that the Department's subsequent claims
provision allows unsuccessful claimants to file multiple times,
resulting in the waste of considerable resources by companies required
to defend against them. The Department's experience with the current
subsequent claims regulation, which has not been substantially changed,
indicates that the provision has not led to widespread misuse.
Approximately 107,000 claims were filed between January 1, 1982 and
July, 1998. Approximately 1,400 of these were from individuals who had
previously been denied benefits three or more times. This represents
only 1.3 percent of the total. While the Department hopes to discourage
filings by individuals who are not totally disabled due to
pneumoconiosis by providing more information about the process to the
potential claimant population, the Department does not believe that a
strict rule requiring the denial of all subsequent claims is
appropriate in a program intended to compensate the victims of a
progressive disease.
(b) The Department's first proposal created a rebuttable
presumption that the miner's physical condition had changed if the
miner proved with new medical evidence one of the applicable conditions
of entitlement. The regulation also included a provision allowing a
miner to establish a serious deterioration in his physical condition
whether or not the presumption was rebutted. The Department now
believes that this regulatory presumption is unnecessary and would lead
to considerable litigation. One commenter suggested its deletion.
Accordingly, the revised proposal eliminates the presumption in favor
of a simple threshold test: If the miner produces new evidence
concerning his physical condition that establishes any of the elements
of entitlement previously resolved against him, he is entitled to
litigate his entitlement to benefits without regard to findings made in
the earlier adjudication. The only exception is an issue resolved
earlier by stipulation or by a failure to contest.
The Department's subsequent claims provision gives full effect to
the Fourth Circuit's decision in Lisa Lee Mines v. Director, OWCP, 86
F.3d 1358 (4th Cir. 1996), cert. denied, 117 S.Ct. 763 (1997). In Lisa
Lee, the en banc Fourth Circuit affirmed an award of benefits on a
subsequent claim despite the operator's objections that the miner
should have been awarded benefits in the prior claim
[[Page 54985]]
based on evidence of complicated pneumoconiosis. The court held that
while the previous denial represented a final adjudication of the
miner's condition at that time, that denial should not bar the miner
from establishing his entitlement to benefits where his condition has
clearly changed. The court's emphasis on accepting the correctness of
the first adjudication, as well as the factual findings underlying that
result, was echoed by Judge Niemeyer in his concurring opinion: ``This
test avoids improper review of the first decision denying benefits.''
86 F.3d at 1365 (Niemeyer, J., concurring).
(c) Several comments argue that the Department has incorrectly
eliminated the requirement in the current regulations that a subsequent
survivor's claim be automatically denied. That requirement is based on
the common-sense premise that a miner's physical condition cannot
change after his death, a premise with which the Department continues
to agree. Thus, where the denial of a prior survivor's claim is based
solely on the survivor's failure to establish that the miner suffered
from pneumoconiosis, that the pneumoconiosis was caused by the miner's
coal mine employment, or that the pneumoconiosis contributed to the
miner's death, the Department agrees that a subsequent survivor's claim
must be denied absent waiver by the liable party. Subsection (d)(3) is
amended to clarify that intent. Where the earlier denial was based in
whole or in part on a finding that is subject to change, however, for
example, that the survivor had remarried, or a child has left school,
it is inconsistent with the basic tenets of issue preclusion to
prohibit that survivor from establishing entitlement to benefits. See
62 FR 3352 (Jan. 22, 1997). Accordingly, the Department has eliminated
the automatic denial of all subsequent survivor's claims, and replaced
it with a more equitable assessment of the survivor's right to assert
entitlement. One comment suggests that allowing waiver of the provision
requiring denial of a survivor's claim is inconsistent with the
Secretary of Labor's fiduciary responsibility toward the Black Lung
Disability Trust Fund. The Department is fully cognizant of its duty to
protect the fund against non-meritorious claims. In exercising its
responsibilities, however, the Department also believes that it should
not deny meritorious claims on technical legal grounds where, for
example, a surviving spouse was unable to obtain legal representation
in the earlier proceeding.
(d) Several comments suggest that section 725.309 is impermissible
in light of the one-year limitation for seeking reconsideration based
on a change in conditions set forth in section 22 of the Longshore and
Harbor Workers' Compensation Act, 33 U.S.C. 922. The Department
disagrees. A section 22 reconsideration request asks that the existing
denial be modified. A subsequent claim, however, does not allow
reopening, or require relitigation, of the existing denial. Instead, it
constitutes a new cause of action adjudicating the miner's entitlement
at a later time. Thus, section 22 is not implicated by the subsequent
claims provision. Moreover, even assuming that section 22 could be read
to preclude subsequent claims under the Longshore and Harbor Workers'
Compensation Act, the Department's authority to depart from the
Longshore Act in order to administer the Black Lung Benefits Act is
well established. Director, OWCP v. National Mines Corp., 554 F.2d
1267, 1274 (4th Cir. 1977). The Department believes that a departure in
this instance is fully justified. Unlike Longshore Act claims, the
majority of which involve discrete, traumatic injuries, all claims
filed under the Black Lung Benefits Act seek compensation for a latent,
progressive disease. Moreover, the Supreme Court has construed the
Longshore Act, in cases involving similar types of conditions, to allow
the entry of nominal benefit awards which may be subject to later and
repeated modification if the employee's condition worsens. Metropolitan
Stevedore Co. v. Rambo, 117 S. Ct. 1953, 1963 (1997). Under the BLBA,
however, entry of a nominal benefit award is not possible. Awards are
permissible only in a case of total disability. Thus, the Department
allows subsequent claims as an acknowledgment that the miner's
condition may worsen.
(e) One comment argues that claimants should not have to relitigate
elements of entitlement that they established in earlier litigation.
For example, if the miner established that he suffers from
pneumoconiosis, but failed to prove that he was totally disabled, he
should not be required to re-prove the existence of the disease in a
subsequent claim. The Department disagrees. Just as the rules of issue
preclusion would not allow a coal mine operator to rely on the miner's
previous inability to prove one element of entitlement when the miner's
condition with respect to another element has changed, those rules also
prohibit a miner from relying on a previous finding which the opposing
party did not have an opportunity to fully litigate. Where a miner's
claim was denied, and the miner did not file an appeal, the party
opposing entitlement had no opportunity to seek to overturn findings
that were favorable to the miner. Consequently, those findings may not
have any preclusive effect.
(f) One comment suggests that the Department should clarify the
date from which benefits are payable in subsequent claims. The date for
commencing payment in subsequent claims is governed by the same rules
applicable to any other claim, see 20 CFR 725.503, with the proviso
that no benefits may be awarded for any period prior to the date on
which the order denying the prior claim became final. This rule,
spelled out in subsection (d)(5), gives effect to the language of the
Fourth Circuit in Lisa Lee, that parties ``must accept the correctness
of [the denial's] legal conclusion--[the claimant] was not eligible for
benefits at that time--and that determination is as off-limits to
criticism by the respondent as by the claimant.'' 86 F.3d at 1361.
(g) One comment argues that the Department's treatment of
subsequent claims violates section 413(d) of the Act, 30 U.S.C. 923(d),
which allows working miners who have been determined eligible for
benefits to receive those benefits only if they terminate their
employment within one year after the determination becomes final. The
Department disagrees. Section 725.504, to which only technical changes
were proposed, see 62 FR 3341 (Jan. 22, 1997), implements the Act's
working miner provisions. The regulation currently allows individuals
whose claims are denied as a result of continued coal mine employment
for more than one year to file new applications after that employment
ends. This regulation was first promulgated (as Sec. 725.503A) in 1978,
see 43 FR 36806 (Aug. 18, 1978), and the Department sees no need to
revise it in light of the treatment afforded subsequent claims filed by
individuals who do not continue to work. In neither case would the
factfinder be permitted to look behind the denial of the earlier
application. Moreover, miners who continue to work, and thus continue
to be exposed to coal mine dust, present an even more compelling
justification for being allowed to file subsequent claims than in the
case of non-working miners.
20 CFR 725.310
(a) The Department is re-proposing section 725.310 in order to make
two specific changes. The first, set forth in the third and fourth
sentences of
[[Page 54986]]
subsection (d), would allow the Department or responsible operator, as
appropriate, to recoup amounts paid erroneously to a claimant where the
claimant is at fault in incurring the overpayment. For example, an
overpayment may occur if a claimant in award status fails to timely
notify the Department or responsible operator of an event requiring a
reduction in the amount of monthly benefits paid. Such events might
include an award of state workers' compensation benefits, a child's
withdrawal from an educational institution, or a surviving spouse's
remarriage. The second change, set forth in the fifth and sixth
sentences of subsection (d), conforms the language of the regulation to
the Department's intention, set forth in the Department's earlier
proposal at 62 FR 3354 (Jan. 22, 1997). By making this change, the
Department recognizes that those claimants whose awards have become
final have a heightened expectation that they will be able to keep the
monthly benefits they receive. Thus, if a final award is terminated
after modification, those benefits paid pursuant to the award before
modification commenced are not subject to recoupment. By contrast,
those claimants whose awards are modified to denials while still on
appeal may be the subject of recoupment proceedings. The two sentences
at the end of subsection (d), as originally proposed, have been further
divided in order to clarify the regulation's meaning.
(b) One comment objects that the revised regulation would prohibit
an administrative law judge from denying a claimant's request for
modification based on the claimant's failure to present any additional
evidence. This comment is apparently based on the mistaken belief that
the current regulations authorize such a denial. However, it is clear
that any party has the right to seek modification under section 22 of
the Longshore Act based ``merely on further reflection on the evidence
initially submitted.'' O'Keeffe v. Aerojet-General Shipyards, Inc., 92
S. Ct. 405, 407 (1971). The Department's current black lung regulations
do not depart from this authority. Thus, current law prohibits an ALJ
from denying a claimant's modification request based on a claimant's
failure to submit new evidence. It is also well-established that a
claimant who requests modification, whether or not he submits new
evidence, is entitled to a de novo adjudication of his entitlement to
benefits and, if requested, to a formal hearing before an
administrative law judge. Robbins v. Cyprus Cumberland Coal Co., 146
F.3d 425, 430 (6th Cir. 1998); Cunningham v. Island Creek Coal Co., 144
F.3d 388, 390 (6th Cir. 1998). The revisions to subsection (c) merely
restate these basic holdings. A similar comment suggests that the
changes to subsection (c) create opportunities for claimants to file
repeated requests for modification and thus avoid the one-year time
limitation. Current law, however, does not permit a fact-finder to deny
a modification request simply because a previous modification request
has been denied. The one-year time limitation, in fact, commences to
run anew when an earlier denial has become final. Subsection (c) does
not alter the current state of the law.
(c) Two comments argue that the district director should not be
permitted to initiate modification in any case in which a coal mine
operator is liable for the payment of benefits to the claimant. The
Department does not agree that such a limitation would be appropriate.
Although coal mine operators are generally able to represent their own
interests effectively, and thus to request modification when they
believe it appropriate, section 22 of the Longshore Act specifically
authorizes the district director to initiate modification on his own
initiative. The Department sees no need to modify this Longshore Act
provision in order to properly administer the Black Lung Benefits Act.
In addition, there exists a group of awards in which a coal mine
operator is nominally liable for the payment of benefits but, because
of bankruptcy, dissolution, or other events, can no longer pay
benefits. In such cases, the Trust Fund, pursuant to 26 U.S.C. 9501(d),
must assume responsibility for paying benefits. The limitation urged by
this comment would effectively prohibit the Department from initiating
modification in those cases, a limitation that the Department considers
unacceptable. For example, the Department must remain free to adjust
the terms of an award of benefits to reflect changes in the number and
status of the claimant's dependents, such as when a previously eligible
child becomes ineligible for augmented benefits. Another comment
suggests that parties should be able to initiate modification
proceedings before an administrative law judge. The Department
disagrees. Section 22 explicitly requires that modification proceedings
under the LHWCA be commenced before the district director, and there is
no need to alter this provision to meet the needs of the black lung
benefits program. In fact, filing a modification request before the
district director allows him to administratively process the request,
develop the appropriate evidence, and attempt an informal resolution of
the claim. See Saginaw Mining Co. v. Mazzulli, 818 F.2d 1278, 1282 (6th
Cir.1987) (discussing the policy reasons supporting the regulation
requiring modification proceedings to be commenced before the district
director).
(d) The Department has extensively revised Sec. 725.414 in order to
define more precisely the quantitative limits on documentary medical
evidence that the parties may submit. See explanation to Sec. 725.414.
Subsection (b) of Sec. 725.310, which limits the amount of additional
documentary medical evidence that parties may submit in cases involving
requests for modification, contained language similar to the language
deleted from Sec. 725.414. In order to clarify the amount of evidence
admissible in a modification case, the Department has made a
corresponding change to subsection (b). Each party will be entitled to
submit one additional chest X-ray interpretation, pulmonary function
test, arterial blood gas study, and medical report. The opposing party
may introduce one opposing interpretation of each objective test, in
accordance with the rules set forth in Sec. 725.414. Finally, the party
that originally offered the evidence may seek to rehabilitate its
evidence by introducing an additional statement from the physician who
administered the test.
Subpart D
20 CFR 725.351
Section 725.351 was not among the provisions which the Department
opened for comment in its previous notice of proposed rulemaking, 62 FR
3341 (Jan. 22, 1997), and the Department did not receive any comments
specifically directed to this section. In the course of reviewing the
procedures to be used in the identification and notification of
potentially liable operators, however, the Department has identified
one aspect of this regulation which might benefit from change. The
Department's proposal requires the submission to the district director
of all evidence relevant to the identification of the liable
responsible operator. Secs. 725.408, 725.414(b). The Department must
have access to this evidence while a claim is pending before the
district director because it will be unable to identify additional
responsible operators after a case is referred to the Office of
Administrative Law Judges, Sec. 725.407(d). It will therefore be the
[[Page 54987]]
district director's responsibility to develop the evidence necessary to
meet the Director's evidentiary burden under the responsible operator
regulations, Subpart G of Part 725.
In order to allow district directors to exercise their
responsibilities more efficiently, and in a manner which does not
unduly delay the adjudication of a claimant's entitlement, the
Department proposes to eliminate the requirement that district
directors obtain approval from the Director, OWCP, prior to the
issuance and enforcement of subpoenas duces tecum. The authority to
issue subpoenas requiring the production of documents is a well-
recognized investigative tool of administrative agencies, see Comment,
``Administrative Subpoenas for Private Financial Records: What
Protection for Privacy does the Fourth Amendment Afford?,'' 1996 Wisc.
L. Rev. 1075, 1076-77 (1996), and the Department believes that the
current additional layer of internal review is unnecessary. Instead,
the Department fully expects that the district directors, working in
cooperation with the appropriate officials of the Office of the
Solicitor, will issue subpoenas that comply with the standards
established by the Supreme Court in United States v. Morton Salt Co.,
338 U.S. 632, 652 (1950). Those standards require that the information
sought must be relevant to the district director's investigation and
the subpoena must not be ``too indefinite.'' The latter requirement
ensures that the district director's request not be excessively
burdensome, i.e., that compliance does not threaten the normal
operation of the recipient's business. See EEOC v. Bay Shipbuilding
Corp., 668 F.2d 304, 313 (7th Cir. 1981).
20 CFR 725.367
(a) Several comments urge the Department to allow successful
claimants' attorneys to collect reasonable fees for all necessary work
they perform in a case rather than only the work performed after the
liable operator first contested the claimant's eligibility or the fund
first denied the claim. The Department agrees that such a change is
appropriate. Since the revised version of section 725.367 was proposed
on January 22, 1997, the Department has spent considerable time
weighing how to adequately compensate claimants' attorneys under the
Black Lung Benefits Act. The issue was raised in part by the Benefits
Review Board's June 30, 1997 decision in Jackson v. Jewell Ridge Coal
Corp., 21 Black Lung Rep. (MB) 1-27 (en banc). In Jackson, the Board,
by a 3-2 majority, held that successful claimants' attorneys in black
lung cases are entitled to fees for all the work they perform,
regardless of whether it is performed before or after the employer
controverts the claimant's entitlement. The Fourth Circuit subsequently
affirmed the Board's decision but disavowed its reasoning. Clinchfield
Coal Co. v. Harris, 149 F.3d 407 (4th Cir. 1998). Faced with three
seemingly reasonable interpretations of the statutory language and
regulations, the Fourth Circuit deferred to the existing interpretation
of the Director, Office of Workers' Compensation Programs. Under that
interpretation, a claimant's attorney's fees are limited to those
services performed after the agency's initial denial of the claim or
the operator's rejection of the agency's initial approval. The court
noted that the Director's interpretation was based on the agency's
reasonable identification of the point in time at which a claimant
would have reason to seek the assistance of an attorney. 149 F.3d at
310.
The evidentiary limitations now proposed by the Department,
however, significantly alter the circumstances under which a claimant
may be expected to seek representation. For example, although the
Department now proposes the elimination of the requirement in the
initial notice of proposed rulemaking that all medical evidence be
submitted while a case is pending before the district director, these
proposed regulations nevertheless still limit the amount of evidence
each party may submit. Attorneys could play an important role in
ensuring that this evidence, including evidence submitted before the
Department's initial approval or denial of the claim for benefits,
complies with the Department's quality standards and effectively
presents the claimant's case. In addition, the Department is proposing
significant changes in connection with the complete pulmonary
evaluation afforded claimants under Sec. 413(b) of the Act. As detailed
in the explanation of these changes at Sec. 725.406, the Department
intends to send to the claimant a copy of the results of the objective
tests obtained in the Department's evaluation, so that the claimant may
in turn give those results to his treating physician. Obviously, the
choice of whether or not to submit a report from that physician is
important, in light of the regulations' evidentiary limitations. The
Department intends to recommend that claimants seek legal advice before
making that choice.
In light of the significant changes proposed by the Department, the
commenters' suggestion is well-taken. Allowing successful attorneys to
collect reasonable fees for all of the necessary work they perform,
rather than only the work performed after creation of an adversarial
relationship, hopefully will encourage early attorney involvement in
these cases. Because such involvement can only improve the quality of
evidence submitted, and thus the quality of decision-making in all
claims for benefits, the Department proposes to amend section 725.367
to accomplish this result. Although the creation of an adversarial
relationship and the ultimately successful prosecution of a claim are
still necessary to trigger employer or fund liability for attorney's
fees, the date on which the adversarial relationship commenced will no
longer serve as the starting point for such liability.
(b) One comment suggests that lay representatives should be
entitled to collect fees from responsible coal mine operators or the
fund. The Department explained in 1978, when it rejected the same
suggestion, that the statute does not require operators to pay the fees
of representatives who are not attorneys. 43 FR 36789 (Aug. 18, 1978).
It is the Department's intention in this regulation to make the trust
fund's attorney's fee liability coextensive with a liable operator's,
62 FR 3354 (Jan. 22, 1997).
(c) One comment suggests that the Department erred in preferring
the Third Circuit's decision in Bethenergy Mines v. Director, OWCP, 854
F.2d 632 (3d Cir. 1988) over the Sixth Circuit's decisions in Director,
OWCP v. Bivens, 757 F.2d 781 (6th Cir. 1985) and Director, OWCP v.
Poyner, 810 F.2d 99 (6th Cir. 1987). The Department's proposal,
however, reflects no such preference. Both Bivens and Poyner stand for
the proposition that the fund is liable for attorney's fees only when
the Director, OWCP, unsuccessfully contests the claimant's entitlement
to benefits. In Bethenergy, the Third Circuit held that a coal mine
operator became liable for the payment of attorney's fees when it
failed to accept liability for the claimant's entitlement within 30
days of the Department's initial finding that the claimant was not
eligible for benefits. The Department's proposal is consistent with all
three decisions. As in Poyner and Bivens, the regulations allow fees to
be awarded against the trust fund only if the Department has denied the
claimant's eligibility. In addition, the revisions follow Bethenergy in
imposing liability on employers based either on their failure to
respond to the Department's initial finding or their contest of it,
whether or not the Department finds that the claimant is eligible for
benefits.
[[Page 54988]]
In each case, the proposal allows the responsible party time to collect
and evaluate medical evidence before determining whether to create the
type of adversarial relationship that would result in liability for
attorney's fees if the claimant ultimately proves successful.
(d) One comment states that the Department has ignored Supreme
Court case law governing attorney's fee liability. The comment contains
no citation to specific precedent and no further explanation. This
sparse comment affords the Department an insufficient basis for
altering its original proposal.
Subpart E
20 CFR 725.403
Section 725.403 was not among the regulations which the Department
opened for comment in its previous notice of proposed rulemaking, 62 FR
3341 (Jan. 22, 1997). The regulation is applicable only to claims filed
under section 415 of the Black Lung Benefits Act, 30 U.S.C. 925,
between July 1 and December 31, 1973. Such claims were filed with the
Department of Health, Education, and Welfare, but administered by the
Department of Labor. Section 413(c) of the Act, 30 U.S.C. 923(c),
provides that no benefits could be paid on any claim filed on or before
December 31, 1973 unless the miner filed a claim for benefits under the
applicable state workers' compensation law. Section 725.403 implemented
this prohibition for purposes of section 415 claims. Because the
deadline for filing section 415 claims expired over 25 years ago, the
Department proposes to delete section 725.403. The Department does not
intend to alter the rules applicable to any section 415 claim that may
still be in litigation, and section 725.403 will remain applicable to
any such claim. Parties interested in reviewing section 725.403 may
consult earlier editions of the Code of Federal Regulations or the
Federal Register in which the regulation was originally published. The
Department invites comment on whether section 725.403 should be
retained in the Code of Federal Regulations.
20 CFR 725.406
(a) The Department received a number of comments, from coal mine
operators and miners alike, criticizing its initial proposal for
providing claimants with the complete pulmonary evaluation required by
30 U.S.C. 923(b). Section 413(b) of the Act, 30 U.S.C. 923(b), requires
the Department to afford each miner who applies for benefits an
opportunity to substantiate his claim by means of a complete pulmonary
evaluation. Under the Department's original proposal, a miner could
either be examined by a physician selected by the Department or by a
physician of his choosing. If the miner selected the physician,
however, the report of that examination would count as one of the two
pulmonary evaluations the miner was entitled to submit into evidence.
Sec. 725.414.
One comment suggested that the Department's proposal, in
combination with the proposed limits on the quantity of documentary
medical evidence each party may submit, would interfere with a miner's
statutory right to have a complete pulmonary evaluation performed by a
physician of his choice. Many miners, the commenter argued, would make
a selection of the physician to perform the examination without the
benefit of counsel, and would be able to submit only one additional
medical report when they did secure counsel. Another comment suggested
that the responsible operator be permitted to choose the physician,
while a third comment suggested that the Department take steps to
ensure that the facilities and physicians it uses to perform the
complete pulmonary evaluation are impartial and of the highest quality.
The Department does not agree that the Black Lung Benefits Act
guarantees claimants the right to have the Department pay for a
pulmonary evaluation performed by a physician selected by the claimant.
The statute obligates the Department only to provide a miner who
applies for benefits ``an opportunity to substantiate his or her claim
by means of a complete pulmonary evaluation.'' 30 U.S.C. 923(b). In the
past, when the regulations allowed parties to submit unlimited amounts
of evidence in claims, the Department did allow miners to request a
specific physician or facility to perform the complete pulmonary
evaluation and to have the examination and/or testing done there as
long as the miner's request was approved by the district director. 20
CFR 725.406(a).
The Department's proposal, however, now sets forth limitations on
the quantity of evidence each side may submit. As a result, allowing a
claimant to choose the physician to perform the initial pulmonary
evaluation without the benefit of counsel could have an adverse effect
on his case. Such a claimant might not obtain the best quality report,
and would be able to submit only one more. The Department has
considered a number of options to address this problem, and believes
that the purposes of the Black Lung Benefits Act will best be served if
the complete pulmonary evaluation authorized by 30 U.S.C. 923(b) is
performed by an impartial and highly qualified physician, a solution
proposed by one of the commenters. The Department will therefore
maintain a list of physicians and facilities authorized to perform
pulmonary evaluations. The Department will provide each miner with a
list of authorized physicians and facilities in the state of the
miner's residence as well as the states contiguous to that state. For
example, a miner living in Ohio may choose from among authorized
physicians and facilities in Ohio, Pennsylvania, West Virginia,
Kentucky, Indiana, and Michigan. The Department will further inform the
miner that the designated responsible operator may require him to
travel 100 miles, or a distance comparable to the distance traveled for
the section 413(b) examination, whichever is greater, in order to
submit to additional medical examinations and testing. See discussion
accompanying Sec. 725.414.
Another suggestion, exempting the complete pulmonary evaluation
performed by a doctor of the claimant's choosing from the evidentiary
limitations, would be unfair to the party opposing entitlement. In that
case, the claimant would effectively have the opportunity to submit
three medical opinions, while the operator or fund would be limited to
two. The Department also does not believe that it would be appropriate,
as one commenter suggests, to allow the responsible operator to select
the physician or facility. The purpose of the section 413(b)
examination is to provide the claimant with an opportunity to have his
physical condition assessed in a non-adversarial setting in an attempt
to substantiate his application for benefits.
Using a smaller group of physicians to perform the complete
pulmonary evaluation will also allow the Department to meet one of its
primary goals in the initial processing stage: providing applicants
with the best respiratory and pulmonary evaluation possible. A thorough
examination, performed in compliance with the applicable quality
standards, will provide each claimant with a realistic appraisal of his
condition and will also provide a sound evidentiary basis for the
district director's initial finding. Developing the best quality
medical evidence possible will benefit all the parties. The Department
intends therefore to develop more rigorous standards for physicians who
perform complete pulmonary evaluations at the
[[Page 54989]]
Department's request. These standards may include: (1) The physician
should be qualified in internal or pulmonary medicine so that he is
better able to analyze respiratory and pulmonary conditions (a request
of one commenter); (2) the facility must be able to perform each of the
tests that the Department considers appropriate to an inquiry into a
miner's respiratory or pulmonary condition, see Sec. 718.104; (3) the
physician must be able to schedule the claimant promptly for a
pulmonary evaluation; (4) the physician must be able to produce a
timely report, which includes a comprehensive narrative addressing each
of the elements of entitlement; and (5) the physician must make himself
available to answer follow-up questions from the district director, and
must be willing to explain and defend his conclusions upon questioning
by opposing parties. The Department specifically seeks comment as to
these and any other standards which may be used to select physicians
and facilities to perform complete pulmonary evaluations. The
Department intends to consider all suggestions carefully, with the goal
of improving the quality and credibility of the ensuing reports. A list
of the standards ultimately selected will be included in the Black Lung
Program Manual prepared and used by the Department in its
administration of the program. This document is open to the public and
is available in each district office. Finally, in order to ensure a
pool of physicians who meet these high standards, the Department
intends to re-evaluate the fees that it pays physicians, both to
perform and explain the results of the pulmonary evaluation and to
participate in depositions and/or other forms of cross-examination. The
Department intends to provide physicians with compensation at the rates
prevailing in their communities for performing similar services.
Information available to the Department, for example, indicates that,
as of June, 1999, the West Virginia Occupational Pneumoconiosis Board
paid facilities $270.43 per claimant for performing pulmonary testing,
and paid physicians $300 per hour for testifying before administrative
law judges. The survey of clinics and facilities which the Department
will conduct while this notice is open for public comment will also
solicit information on the fees needed to attract highly qualified
physicians to perform the testing and evaluation required by the
Department.
The Department recognizes that this proposed revision would
significantly change the manner in which it administers the complete
pulmonary evaluation required by the Black Lung Benefits Act. By
raising the quality of these evaluations, the Department hopes to
provide each miner with the best possible medical assessment of his
respiratory and pulmonary condition early in the processing of his
application. Where a miner meets the Department's eligibility
standards, the higher quality evidence produced by these evaluations
will further Congress's intent that miners be given an opportunity to
substantiate their claims. In the case of miners who do not meet those
standards, the increased credibility of the initial pulmonary
evaluation may reduce litigation before the Office of Administrative
Law Judges, the Benefits Review Board, and the federal appellate
courts.
The Department is aware of difficulties that claimants may
encounter in generating legally sufficient medical evidence in support
of their applications. Two commenters state that claimants must be
given the right to select the physician who performs the complete
pulmonary evaluation because they often cannot afford to obtain their
own medical evidence. Developing medical evidence relevant to the
evaluation of a claimant's respiratory and pulmonary condition,
including the objective medical testing required by the Department's
quality standards, Sec. 718.104, can involve costs that are beyond the
reach of some claimants. Accordingly, the Department proposes to add a
provision (subsection (d)) requiring the district director to inform
the claimant that he may have the results of the Department's initial
objective testing sent to his treating physician for use in the
preparation of a medical report that complies with the Department's
quality standards. Such objective test results would include a chest X-
ray reading, Sec. 718.104(a)(5), the results of a pulmonary function
test, Sec. 718.104(a)(1), and the results of an electrocardiogram,
blood gas studies, and other blood analyses, if conducted,
Sec. 718.104(b). In addition, the district director will inform the
claimant that, if submitted, a report from his treating physician will
count as one of the two reports that he is entitled to submit under
Sec. 725.414, and that he may wish to seek advice, from a lawyer or
other qualified representative, before requesting his treating
physician to supply such a report. By providing the miner's treating
physician with the results of objective testing that the miner might
not otherwise be able to obtain, the Department will assist claimants
who may not be able to afford to pay for a complete pulmonary
evaluation on their own.
(b) Two commenters state that the Department should impose
limitations on the district director's ability to clarify ``unresolved
medical issues'' under subsection (e). Both suggest that the district
director should be required to ask the physician who performed the
complete pulmonary evaluation whether he is aware of unresolved issues,
and both commenters also object to any attempt on the part of the
district director to question the credibility of the medical evidence
obtained as part of the complete pulmonary evaluation. The Department
does not agree. District directors must be allowed considerable
discretion in fulfilling their responsibility to develop the medical
evidence relevant to the claimant's respiratory and pulmonary
condition. They must develop complete evidence of the best possible
quality to allow them an adequate evidentiary basis to determine
whether the claimant is initially entitled to benefits. Limiting
district director discretion in the manner suggested by the commenters
could result in evaluating a miner's entitlement with medical evidence
that is neither complete nor credible. If the district director selects
a different physician or facility to re-examine the miner under
subsection (e), however, he will be limited to selecting that physician
or facility from the same list available to the claimant. The district
director may use a physician who is not on the approved list only under
subsection (c), which allows the district director to seek a review of
objective testing. For example, this provision allows a district
director to have a chest X-ray reread by a qualified radiologist who
meets the requirements for a ``B'' reader, see 20 CFR
718.202(a)(1)(ii)(E), but who is not qualified to perform a complete
pulmonary evaluation. The Department also notes that the district
director's use of the authority granted by subsection (e) should
decrease under the revisions proposed in this notice. Under this
proposal, the district director will be seeking an initial evaluation
from a qualified physician with the ability to perform a complete
evaluation in a timely manner, and likely will not have to seek a miner
reexamination as provided by subsection (e). Finally, the Department
has added language to subsection (e) to clarify that any additional
report obtained by the district director shall not count against the
limits on medical evidence imposed on parties other than the Director
by Sec. 725.414. Instead, where the district director requests merely
that the
[[Page 54990]]
physician supplement his original report, the supplement shall be
considered a part of that original report. Where the district director
orders additional tests, however, the previous tests may not be
admitted into the record at the hearing.
(c) Two commenters object to the contents of subsection (d), as
originally proposed, now in subsection (c), which outlines the
Department's obligation to evaluate each examination and objective test
performed as part of the Department's section 413(b) pulmonary
evaluation. The subsection allows the Department to determine whether
all parts of the section 413(b) examination are in substantial
compliance with the Department's quality standards. The Department's
original proposal authorized the district director to seek additional
tests where substantial compliance was lacking, except where the
deficiencies in the testing were the result of a lack of effort on the
part of the miner. The commenters argue that a miner whose test is
considered invalid due to a lack of effort should be given an
additional opportunity to obtain satisfactory results. The Department
agrees. A number of factors may influence a miner's lack of effort on
objective testing, including a failure to fully understand the test
procedures. Accordingly, the Department proposes to revise this
subsection to afford such miners one additional opportunity to produce
results in compliance with the quality standards.
(d) Several comments argue that the Department should not provide
complete pulmonary evaluations if the claim represents a request for
modification or a subsequent claim. The Department does not provide an
additional pulmonary evaluation if a claim is filed within one year of
the date on which the claimant's previous application was finally
denied. In such cases, the application is treated as a request for
modification, see Fireman's Fund Insurance Co. v. Bergeron, 493 F.2d
545, 547 (5th Cir.1974), and has the effect of extending the processing
and adjudication of the original claim. The Department has already
satisfied its responsibilities under section 413(b) with respect to
that claim, and does not provide an additional evaluation. By contrast,
a subsequent claim is an entirely new assertion of entitlement to
benefits, which covers a later period of time and is limited only by
the requirement that the parties must accept as final the outcome of
any earlier claims filed by the claimant. In such a case, the
Department believes that section 413(b) requires that the claimant
receive a new evaluation of his respiratory and pulmonary condition.
(e) The Department has made several technical changes to the
language of proposed subsection (e) to make that provision easier to
read.
20 CFR 725.407
(a) The Department has proposed to revise section 725.409 to
require administrative law judges to remand cases in which they reverse
a district director's determination that a claim should be denied by
reason of abandonment. Because these cases will be returned to the
district director for further administrative processing, the Department
has revised section 725.407(d) to ensure that the district director
retains the authority to notify additional potentially liable operators
under such circumstances. Absent this revision, subsection (d) could
have been read to prohibit further notification of operators on remand.
(b) One comment suggests that the Department provide guidelines
limiting the circumstances under which it can identify more than one
potentially liable operator in a claim. The commenter questions the
Department's need to name multiple potentially liable operators in
every case, citing the increased litigation costs which will be
incurred by the operators named. The Department does not intend to name
multiple operators in every case. The Department also does not believe,
however, that guidelines are appropriate. A dispute over the identity
of a liable responsible operator may present a variety of issues, such
as the financial assets of a miner's employers, whether the claimant
was employed as ``miner,'' and the consequences of various successor
operator transactions. The Department's purpose is to ensure that
liability for a miner's black lung benefits is borne by a miner's
previous employer to the maximum extent possible. In light of the wide
range of potential issues surrounding the naming of a responsible
operator, the Department does not believe that guidelines are feasible.
(c) One comment supports this proposal, provided that when multiple
potentially liable operators are named, they are collectively subject
to the same limits on the quantity of documentary medical evidence as a
single operator may submit. The Department has retained and applied the
same limitation on the amount of documentary medical evidence that may
be submitted in cases involving either one or multiple potentially
liable operators. Sec. 725.414(a)(3)(i), (ii). Two other comments offer
similar support for the Department's proposal.
20 CFR 725.408
(a) Several comments suggest that the time allowed for submitting
evidence regarding the identity of the responsible operator should be
expanded, and that the Department should incorporate some provision for
submitting later discovered evidence. Another comment similarly argues
that the time frames in the proposed rules are unrealistic in light of
the difficulties in obtaining necessary evidence. The comment points
out that by the time miners file applications for benefits, their
former employers may no longer be in operation, and necessary personnel
records may have been lost, destroyed, or put into storage. At the
Washington, D.C. hearing, representatives of the insurance and claims
servicing industries suggested that the Department needed to provide
more time, perhaps up to a year, within which to develop this evidence.
Transcript, Hearing on Proposed Changes to the Black Lung Program
Regulations (July 22, 1997), pp. 190 (testimony of Margo Hoovel), 193
(testimony of Betsy Sellers).
The Department appreciates the difficulty which may be faced by the
insurance and claims servicing industries in developing employment
information. Accordingly, the Department has extended the time under
Sec. 725.408 within which an operator must submit evidence from 60 days
to 90 days following its receipt of notice of a claim pursuant to
Sec. 725.407. Because the Department hopes to streamline the processing
and adjudication of claims for benefits under the Act, the Department
declines to make this period longer. A longer time period could result
in significant delays in the adjudication of an applicant's entitlement
to benefits. Moreover, many applications for benefits under the Act are
filed within a relatively short period of time after the miner leaves
coal mine employment. In fact, one comment received on behalf of
several coal companies indicated that the 60-day time limitation was
inadequate only in the minority of cases. Finally, in cases in which
even the 90-day period may not afford a potentially liable operator
sufficient time to obtain employment evidence, this time period may be
extended for good cause pursuant to the general authority for
extensions of time contained in proposed Sec. 725.423.
(b) One comment objects to the Department's proposal on the ground
that it would require operator development of evidence in non-
[[Page 54991]]
meritorious claims. The Department recognizes that coal mine operators
may currently ignore most claims of which they receive notice, because
many claimants do not proceed after receiving an initial denial of
benefits. The Department has been severely handicapped by this
practice, however, because it did not know operators' positions with
respect to their potential liability for benefits in cases that did
proceed, and the Department was therefore unable to develop responsive
evidence. See 62 FR 3355-3356 (Jan. 22, 1997) (discussing the proposed
revision of section 725.408 set forth in the Department's previous
notice of proposed rulemaking). The Department does not believe that it
places an undue burden on potentially liable operators to request
certain information at this early stage. The proposal would require
them to submit only information regarding their status as a coal mine
operator, their employment of the miner and their financial capacity to
pay benefits. Contrary to the understanding of some commenters,
information relevant to the identity of other potentially liable
responsible operators need not be developed until after the issuance of
an initial finding of the claimant's eligibility or, if the district
director finds that the claimant is not eligible for benefits, after
the claimant indicates his dissatisfaction with that result.
Consequently, the Department does not believe that requiring the
submission of a limited amount of evidence in every case would
significantly increase the burden on coal mine operators.
(c) Several comments suggest that the Department provide a
bifurcated hearing process to allow administrative law judges to
resolve responsible operator issues prior to hearing the merits of
entitlement. Although a bifurcated hearing would produce initial fact-
finding on the issue, the Department cannot eliminate the possibility
that an aggrieved party might appeal the ALJ's decision to the Benefits
Review Board and the appropriate court of appeals. If the regulations
authorized an immediate appeal of the responsible operator issue, there
would be a substantial likelihood of significant delay in the
adjudication of the claimant's entitlement. If, on the other hand, coal
mine operators could appeal their responsible operator status only
after an award of benefits, the proposed suggestion would not
accomplish its purpose; the Department would still be required to keep
each potentially liable operator as a party to the case to protect the
Black Lung Disability Trust Fund in the event the liability
determination was overturned on appeal. The Department thus cannot
fashion a process which bifurcates the issues of liability and
entitlement, but nevertheless serves the Department's purpose of
ensuring a prompt adjudication of claimant entitlement involving all
potentially liable parties.
20 CFR 725.409
(a) Several comments argue that the penalty for a claimant's
failure to attend an informal conference without good cause, denial of
the claim, is disproportionately harsh in comparison with the penalty
imposed on an employer, waiver of the right to contest potential
liability for an award. See Sec. 725.416(c). The Department agrees that
the proposed regulation may impose severe consequences on a claimant
who fails to attend a scheduled informal conference without good cause.
Unlike the situation involving potentially liable operators, however,
the statute constrains the Department's ability to impose lesser
sanctions on claimants. Requiring an operator to concede one of the
issues being contested, such as its status as a responsible operator,
limits that operator's ability to contest the claim without entirely
foreclosing it. Requiring a claimant to concede an issue, however, is
usually tantamount to a denial of benefits. The Department believes
that a denial by reason of abandonment represents the only valid
sanction for a claimant's failure to participate at each stage of the
claims adjudication process, including the informal conference.
The Department could adjust the disproportionate effect of the
penalty by imposing an equally severe sanction on an employer who fails
to attend an informal conference without good cause. In general,
however, the Department would prefer not to finally resolve a claim for
benefits based solely on a party's failure to attend an informal
conference. Where such a sanction is the only one available, as is the
case with claimants, the Department has no alternative. In order to
mitigate the disparity, however, and in recognition of the fact that,
as several commenters point out, most claimants are unrepresented at
this point in the proceedings, the Department proposes to add a new
subsection, requiring the district director to affirmatively request
that the claimant explain why he failed to attend the conference, and
to evaluate the claimant's explanation in light of the claimant's age,
education, and health as well as the distance of the conference from
his residence. Elsewhere in this proposal, see proposed revisions to
Sec. 725.416, the Department has further required the district director
to explain why he believes that an informal conference would assist in
the voluntary resolution of issues in the case. The Department hopes
that these revisions will lead to a better understanding of the
informal conference process on the part of all parties, and that
unjustified absences will be unusual.
(b) One comment urges that, in any case in which an administrative
law judge finds that the district director erred in denying the claim
by reason of abandonment, he should have the discretion to proceed to
adjudicate the merits of the claimant's entitlement. The Department
does not agree. A claim may be denied by reason of abandonment at
several stages during the initial processing of that claim. For
example, a claimant's unjustified failure to attend the required
medical examination scheduled by the Department may result in a denial
by reason of abandonment. At this stage, none of the evidence regarding
issues such as potential operator liability would be in the
administrative record, and it would be inappropriate for the
administrative law judge to adjudicate the claim on its merits. Even
when administrative processing is substantially complete before
issuance of a denial by reason of abandonment, such as when a claimant
refuses to attend an informal conference, a conference may nevertheless
be appropriate. For example, the conference provides the district
director with a final opportunity to question the claimant concerning
his coal mine employment, and thus to ensure that all potentially
liable operators are identified before the case is referred for a
formal hearing on the merits. A conference also allows the district
director to ensure that the claimant understands the requirements for
establishing his entitlement to benefits. Consequently, the Department
has added a sentence to subsection (c) to clarify the intent of the
regulation and require that an administrative law judge remand a claim
to a district director even if he finds that the district director
erred in denying the claim by reason of abandonment.
(c) One comment suggests that the proposal will result in the
filing of additional claims by applicants whose previous claims were
denied by reason of abandonment. The Department does not believe that
authorizing the dismissal of a claim based on the applicant's unexcused
failure to attend an informal conference will result in a significant
number of additional filings. In the Department's experience, the vast
majority of informal conferences are attended by representatives of
both parties. As a result, the authority set
[[Page 54992]]
forth in this section is not apt to be invoked frequently. The
Department also believes, however, that the consequences of a
claimant's unexcused failure to attend should be clearly explained. The
commenter also states that the dismissal of a claim imposes additional
burdens and costs on parties to the claim other than the claimant.
Although this observation may be true when a claimant does file an
additional claim, or further litigates the abandonment finding, the
failure of one party to attend an informal conference also imposes
significant costs on the parties who did attend and on the Department,
whose officials scheduled the conference and set aside the time
necessary to hold it. In order to reduce the possibility of needlessly
incurring these costs, the Department has proposed a sanction which
should ensure that all parties attend an informal conference that has
been scheduled in accordance with Sec. 725.416.
20 CFR 725.411
(a) Although the Department is not proposing any further revision
to Sec. 725.411, the Department wants interested parties to be aware
that it intends to substantially rewrite the documents it uses in
connection with an initial finding under Sec. 725.411, in particular to
assist unrepresented claimants who are denied benefits. The new letter
will contain a detailed explanation, in clear language, of why the
evidence developed up to that point fails to establish all of the
necessary elements of entitlement. Revision of the initial finding
letter is an important part of the Department's commitment to improve
the quality of the information it provides parties to the adjudication
of claims for black lung benefits. The Department hopes that this
improved communication will accomplish two goals: (1) to make the
processing of black lung claims by the Department's district offices
easier to understand; and (2) to give claimants a clear picture of the
medical evidence developed in connection with their claims so that they
are able to make more informed decisions as to how to proceed.
(b)(i) Four comments express concern that subsection (a) prohibits
treating a claimant's request for a hearing before an administrative
law judge as a ``request for further adjudication'' if made within one
year of the denial of a claim. The Department disagrees with this
interpretation. The proposed regulation states explicitly that any
expression of an intent to pursue a denied claim amounts to a ``request
for further adjudication.'' An untimely hearing request would
constitute a valid request for further adjudication by the district
director.
(ii) Three comments also state that a claimant who responds to a
denial by requesting a hearing should receive one. Paragraph (a) only
precludes the claimant from receiving the hearing immediately as the
next stage in the adjudication of the claim. Having invoked a
continuation of the claims process by requesting ``further
adjudication,'' the claimant must wait for the district director to
issue a proposed decision and order. Once the district director issues
such a decision, the claimant may pursue any available remedies,
including a hearing, with an appropriate request. By invalidating
premature hearing requests, the Department intends to ensure the
orderly adjudication of claims through each sequential step in the
process, and avoid the uncertainty engendered by case law such as Plesh
v. Director, OWCP, 71 F.3d 103 (3d Cir. 1995) (holding that claimant's
hearing request made before district director completed processing of
claim and issued decision must nevertheless be honored after decision
was issued, although not renewed by claimant). The Department has
therefore made explicit that a hearing request is effective only when
made within 30 days after the district director issues a proposed
decision and order under Sec. 725.419(a) or a denial by reason of
abandonment under Sec. 725.409(b). Any premature request will be
ineffective as a request for a hearing before an administrative law
judge.
(c) One comment contends the one-year period for requesting further
adjudication in subsection (a) represents an impermissible extension of
the one-year period for seeking modification of a claim under
Sec. 725.310 and Sec. 922 of the Longshore and Harbor Workers'
Compensation Act (LHWCA), 33 U.S.C. 922, as incorporated into the Black
Lung Benefits Act by 30 U.S.C. 932(a). The commenter contends a
claimant would have one year under paragraph (a) to request further
adjudication of a denied claim, and one additional year to request
modification of the claim. This interpretation, in effect, treats the
two types of proceedings as mutually exclusive. The Department rejects
this contention because it misinterprets the operation of, and
relationship between, Secs. 725.411 and 725.310.
Under modification, a claimant who has been denied benefits has one
year in which to reopen the denied claim. The generally recognized
standard for invoking the modification process is an intent to pursue
the claim. See generally Eifler v. Director, OWCP, 926 F.2d 663, 667
(7th Cir. 1991). In its initial notice of proposed rulemaking, the
Department explained at length that the one-year period for responding
to a denial of benefits under Sec. 725.411 merely reflects an
incorporation of the one-year period for requesting modification. 62 FR
3356 (Jan. 22, 1997). By eliminating the hierarchy of response times in
the current regulations, the Department has simplified the adjudication
procedures for claimants. Under the current regulations, a claimant has
30 days, 60 days or one year in which to pursue a claim after the
denial, depending on the type of decision and the options available.
Proposed Sec. 725.411 would replace this process with a single time
period (one year) and a single action which the claimant may take: by
indicating any intent to pursue the claim within one year, the claimant
reopens the adjudication process and receives a new decision (a
proposed decision and order) based on new evidence (if proffered) or
reconsideration of the existing record. If the claimant is dissatisfied
with that decision, (s)he may request a hearing before an
administrative law judge. If, however, the claimant takes no action
within one year of a denial, then the claim is finally denied and not
subject to modification. The regulations specifically state that any
submission by the claimant after the one-year time limit in
Sec. 725.411(a)(1)(i) will be treated as an intent to file a subsequent
claim. See Secs. 725.411(a)(1)(ii), 725.309. Consequently, Sec. 725.411
does not violate the one-year modification period or expand the right
of a claimant to reopen a denied claim.
(d) One comment offered in connection with proposed Sec. 725.423
recommends permitting extension of the one-year period for requesting
further adjudication in paragraph (a)(1)(i). The Department addressed
this idea in its initial notice of proposed rulemaking. 62 FR 3361
(Jan. 22, 1997). The Department concluded that allowing an extension of
the one-year period would not be appropriate because one year is an
adequate response period, and any response within that period
demonstrating an intent to pursue a claim is sufficient to reactivate
the adjudication process. For those reasons, no change has been
proposed in response to this comment.
20 CFR 725.414
(a) Numerous commenters criticized the Department's initial
proposal which required the parties to submit all documentary medical
evidence to the district director in the absence of extraordinary
circumstances. A number
[[Page 54993]]
of commenters observed that claimants often are unable to obtain legal
representation until after a case is referred to the Office of
Administrative Law Judges. Thus, under the initial proposal, a claimant
would often be making critical evidentiary decisions without the
benefit of counsel. These commenters also stated that a miner should
not be required to undergo five medical examinations (the section
413(b) pulmonary evaluation and the two examinations permitted each
side) within the relatively short period from the date the claim is
filed to the district director's conclusion of administrative
processing. Other commenters stated that the Department's proposal
would significantly increase operators' litigation costs by requiring
them to develop medical evidence in all cases. Currently, operators
have no need to develop medical evidence in cases in which the claimant
does not take further action after the district director issues an
initial denial of benefits. Statistics maintained by the Department
indicate that in more than 60 percent of the black lung claims filed,
adjudication ceases after a district director's decision.
The Department agrees that the required submission of all
documentary medical evidence to the district director should be revised
in light of the many valid objections received. Accordingly, the
Department proposes instead to retain the current process for
submitting documentary medical evidence into the record. Under this
proposal, parties may continue to submit documentary medical evidence
to the district director in accordance with the schedule issued under
Sec. 725.413. To the extent that those submissions do not reach the
numerical limitations imposed on each side by Sec. 725.414, the parties
may submit additional documentary medical evidence into the record up
to 20 days before an ALJ hearing, and even thereafter, if good cause is
shown. The only other limitation on the submission of documentary
medical evidence to the administrative law judge is found in the
current regulations. The Department proposes to add subsection (e) to
the revised version of this section in order to retain the requirement,
set forth in the Department's current regulations at 20 CFR 725.414(e),
that parties may not withhold evidence they develop while a case is
pending before the district director. Such evidence will be admissible
in further proceedings only if the party establishes extraordinary
circumstances or obtains the consent of the other parties to the claim.
See Doss v. Director, OWCP, 53 F.3d 654, 658 (4th Cir. 1995).
Although the Department now proposes to allow the submission of new
documentary medical evidence while a case is pending before the Office
of Administrative Law Judges, it has not altered the proposal with
respect to the required submission to the district director of all
evidence relating to potentially liable operators and the responsible
operator. The Department explained in its previous notice of proposed
rulemaking that this requirement is intended to provide the district
director with all of the evidence relevant to the identification of the
responsible operator liable for the payment of benefits, in the absence
of extraordinary circumstances. 62 FR 3355-3356 (Jan. 22, 1997). The
proposal was intended to accomodate two interests that may conflict in
some cases: a claimant's interest in the prompt adjudication of his
entitlement; and the Department's interest in protecting the Black Lung
Disability Trust Fund from unwarranted liability. Under the
Department's current regulations, the Director, OWCP, may seek to have
a case remanded from the Office of Administrative Law Judges where
evidence not previously submitted to the district director suggests
that liability for a claim should be imposed on an operator that was
not notified of its potential liability. Such remands necessarily delay
the adjudication of the claimant's entitlement to benefits. Under the
Department's proposed revision, the Director may not seek, and an
Administrative Law Judge may not order, remand of a case to the
district director's office in order to identify additional potentially
liable operators. If the Department has failed to notify the correct
operator of at least its potential liability, the Black Lung Disability
Trust Fund will pay the claimant's benefits in the event of an award.
The Department thus assumes the risk that its initial operator
identification is flawed. This risk can be justified only if the
Department is able to require the early submission of evidence relevant
to the responsible operator issue.
Under proposed Sec. 725.408, a potentially liable operator
identified by the district director has 90 days from the date on which
it is notified of that identification to submit evidence demonstrating
that it does not meet the Sec. 725.494 definition of a potentially
liable operator with respect to a claim. For example, a potentially
liable operator may submit evidence demonstrating that it did not
employ the miner for at least one year, or that it was not an operator
for any period after June 30, 1973. Following the district director's
issuance of an initial finding, and a decision by a party aggrieved by
that finding to seek further review, the operator designated as the
responsible operator must develop and submit any evidence needed to
support a contention that it is not the responsible operator liable
pursuant to Sec. 725.495 for the benefits payable to the claimant. This
evidence, showing, for example, that a more recent employer should be
liable for benefits, must be submitted to the district director in
accordance with the schedule established under Sec. 725.413. An
administrative law judge may admit additional evidence on any issue
regarding either potentially liable operators or the responsible
operator only if the party submitting the evidence demonstrates
extraordinary circumstances justifying its admission. The Department
has also proposed revising subsection (c) to extend the extraordinary
circumstances exception to testimony regarding such issues by a witness
whose identity was not disclosed to the district director.
(b) Several commenters request that the Department further define a
number of terms used in the initial proposal, such as ``rebuttal
evidence,'' ``consultative report,'' and ``interpretive opinion.'' The
Department agrees that some of the terms used in the proposal were
ambiguous, and believes that the regulation would better serve all
interested parties by describing the applicable evidentiary limitations
in terms of the evidence needed to establish a claimant's entitlement
to benefits under Secs. 718.202 and 718.204. Accordingly, the
Department is proposing extensive revisions to this section to ensure
that the intended evidentiary limitations are clearly defined. Each
party may submit two chest X-ray interpretations (of the same X-ray or
two different X-rays, at the option of the party), the results of two
pulmonary function tests and two arterial blood gas studies, and two
medical reports. The medical reports may include a review of any other
evidence of record. Each party may also submit one piece of evidence in
rebuttal of each piece of evidence submitted by the opposing party, and
may submit one piece of evidence challenging each component of the
Department's complete pulmonary evaluation authorized by Sec. 725.406.
Thus, a party may have each chest X-ray submitted by the opposing party
reread once, and may submit one report challenging the validity of each
pulmonary function study or blood gas test submitted by the opposing
party. In addition, one
[[Page 54994]]
commenter asked that the Department permit a party to rehabilitate
evidence that has been the subject of rebuttal by the opposing party.
For example, where a party submits a physician's opinion stating that
the results of a pulmonary function study are invalid because the miner
expended less than maximal effort in performing the test, the party
submitting the test should be able to introduce a contrary statement
from the physician who administered it. The Department agrees, and has
revised paragraphs (a)(2)(ii) and (a)(3)(ii) accordingly.
(c) A large number of commenters favor the proposed limitation on
the quantity of medical evidence each side may submit. A number of
other commenters object to the proposed limitation on the amount of
medical evidence. They argue: (1) That the limitation is unnecessary;
(2) that the exclusion of evidence will decrease the quality of
factfinding under the Black Lung Benefits Act; (3) that the limitation
violates section 413(b) of the Act, 30 U.S.C. 923(b); (4) that the
limitation violates the Administrative Procedure Act, 5 U.S.C. 551 et
seq.; and (5) that the limitation violates employers' due process
rights. The Department anticipated most of these criticisms in the
explanation of Sec. 725.414 contained in its initial notice of proposed
rulemaking, 62 FR 3356-61 (Jan. 22, 1997), and the arguments advanced
by the commenters provide no basis upon which to alter the regulation's
proposed limitation as to the quantity of admissible evidence.
The Department continues to believe that the limitation represents
a reasonable means of focusing the fact-finder's attention on the
quality of the medical evidence in the record before him. In
particular, the limitation ensures that the claimant will undergo no
more than five pulmonary evaluations (two claimant evaluations, two
responsible operator evaluations, and the initial pulmonary evaluation
provided by the Department under 30 U.S.C. 923(b)) for purposes of
assessing claimant's entitlement to benefits. In light of the strenuous
nature of pulmonary testing, including both pulmonary function tests
and arterial blood gas tests, no claimant should have to undergo
repeated evaluations simply to create a numerically superior
evidentiary record for one side or the other. Instead, five evaluations
should be sufficient in most cases to allow the fact-finder to assess
the miner's pulmonary condition. In the Department's view, additional
evaluations would be of only marginal utility.
The Department's initial notice did not explicitly address,
however, the extent to which a party's due process rights might be
compromised by the Department's limitation on the amount of evidence
that party may submit. The due process clause of the Fifth Amendment of
the Constitution precludes governmental deprivations of life, liberty,
or property without due process of law. Due process ``is not a
technical conception with a fixed content unrelated to time, place and
circumstances,'' but rather, a ``flexible'' doctrine that requires
``such procedural protections as the particular situation demands.''
Mathews v. Eldridge, 424 U.S. 319, 334 (1976). At a minimum, it
requires an opportunity to be heard ``at a meaningful time and in a
meaningful manner.'' Id. at 333. A meaningful administrative hearing
does not require the ``wholesale transplantation'' of judicial rules
and procedures. Id. at 348. Nonetheless, the judicial model is a guide
for assuring ``fairness.'' Id. In the end, due process cases turn on
``the procedure's integrity and fundamental fairness.'' Richardson v.
Perales, 402 U.S. 389, 410 (1971).
In determining whether an administrative practice satisfies due
process, the courts balance three distinct factors:
the private interest that will be affected by the official action;
second, the risk of an erroneous deprivation of such interest
through the procedures used, and the probable value, if any, of
additional or substitute procedural safeguards; and finally, the
government's interest, including the function involved and the
fiscal and administrative burdens that the additional or substitute
procedural requirements would entail.
Mathews, 424 U.S. at 335.
The Department recognizes that both operators and claimants have
significant, albeit competing, private interests at stake. Operators
and their insurers have a monetary interest in each claim (involving an
average payout over the life of the claimant of $175,000) and an
interest in not being required to pay benefits in nonmeritorious cases.
Claimants, on the other hand, are interested in the financial benefit
of an award and in the opportunity to substantiate their claims without
being overwhelmed by the superior economic resources of their
adversaries.
As a general rule, the Department does not believe that there is a
significant risk of the erroneous deprivation of private interests on
either side if both the claimant and the party opposing entitlement are
subject to similar limitations on the quantity of the evidence that
they may develop. Applicants with non-meritorious claims will find it
difficult to generate two favorable medical reports, accompanied by
supportive objective testing, from well-credentialed physicians. Faced
with well-documented reports from an equal number of physicians
retained by operators and their insurers, claimants will be unable to
meet their burden of establishing each element of entitlement.
Consequently, there is no increased risk of an erroneous deprivation of
the interests of parties opposing entitlement. Similarly, the
Department does not believe that the proposed evidentiary limitations
will result in the denial of meritorious claims that are currently
being awarded. Awards are typically issued in cases containing
qualifying objective testing, or a reasoned and documented medical
report by a physician with in-depth knowledge of both the miner's
respiratory and pulmonary condition and the exertional requirements of
the miner's usual coal mine work. Moreover, the overwhelming support
for this proposal from claimant groups and attorneys suggests that they
also do not believe that it will erroneously deprive meritorious
claimants of benefit awards.
In order to allow for the more careful consideration of the unique
facts and circumstances of each case, however, and to provide an
additional procedural safeguard, the Department has revised
Sec. 725.456 as initially proposed to permit an administrative law
judge to admit medical evidence into the record in excess of the limits
outlined in Sec. 725.414 upon a showing of good cause. The Department's
prior proposal would have permitted the admission of such evidence only
if a moving party could demonstrate extraordinary circumstances. By
adopting the more permissive good cause standard, the Department
recognizes that a rigid rule prohibiting additional evidence may
increase the risk of an erroneous deprivation of private interests in
particular cases. For example, one commenter states that hearings in
the Western states are frequently rescheduled due to weather conditions
and rescheduling requests of the parties. In light of the time which
elapses between the hearing request and the actual hearing, and the
progressive nature of pneumoconiosis, the commenter argues that parties
must be able to obtain and submit into the record more recent medical
evidence. The commenter suggests that if a party has already submitted
the maximum amount of evidence long before a case is heard, the record
will be devoid of any evidence regarding the miner's
[[Page 54995]]
current medical condition. The Department agrees that in such a case,
an administrative law judge may authorize the development of additional
medical evidence in a manner that is equitable to all parties. Thus, to
the extent that the evidentiary limits might heighten the risk of the
erroneous deprivation of a private interest, the Department seeks to
limit that result by allowing the submission of additional medical
evidence upon a showing of good cause.
The Department continues to believe that the amount of medical
evidence admissible under this provision will generally be adequate to
guarantee a full and fair adjudication of the miner's entitlement to
benefits. The government also has an interest in maintaining that
guarantee, and in improving the public's perception of the fairness of
the process. The government's interest represents the third factor to
be balanced under the Supreme Court's due process analysis. The
additional flexibility contained in the Department's revised proposal,
requiring that a party seeking to submit additional medical evidence in
any individual case must establish good cause justifying its admission,
will not impair the government's interest. Moreover, the Department's
proposal will provide additional safeguards to ensure that the
adjudication process properly balances the interests of all parties to
a black lung claim. Accordingly, the Department does not believe that
the evidentiary limitations contained in this provision will be
considered a violation of the due process clause.
(d) One comment objects to the Department's proposal to limit
claimants' travel for responsible operator testing and/or examination
to 100 miles from their homes. The Department's initial proposal
contained the same restriction as does its current regulation (current
20 CFR 725.414(a); proposed Sec. 725.414(a)(3)(i), limiting the ability
of coal mine operators to compel miners to travel more than 100 miles
to undergo an evaluation). The commenter argues that such a travel
restriction on operators is not justified absent a comparable
restriction on claimants. The Department does not believe that it would
be appropriate to impose such a limitation on miners. The Department's
proposed revision to Sec. 725.406, however, allows a miner to select
the physician or facility to perform the complete pulmonary evaluation
guaranteed under section 413(b) of the Act, 30 U.S.C. 923(b), from
among authorized physicians or facilities in the state of his residence
or any contiguous state. The limitation in the current regulations and
the Department's initial proposal was intended to ensure that a coal
mine operator not be able to subject a miner to undue hardship in
traveling to the site of a physical examination. Where the miner
selects a facility or physician more than 100 miles from his residence,
however, he has demonstrated his willingness to undertake additional
travel. In such cases, absent a change in the miner's health, the
designated responsible operator should be entitled to compel the miner
to travel an equivalent distance. Where the miner selects a physician
within a 100-mile radius of his residence, the original rule should
remain in effect. In order to effectuate these changes, the Department
proposes revising subsection (a)(3)(i).
(e) Several comments have asked the Department to alter the
evidentiary limitations set forth in this section. One commenter urges
the Department to exempt the report of a claimant's treating physician
from the limitations while another feels that one examination per side
is adequate. Another commenter suggests that the Department permit the
responsible operator to submit only as much evidence as the claimant
submits, thus allowing the claimant to determine the size of the
evidentiary record. A fourth commenter suggests limiting responsible
operators to no more than one medical report authored by a physician
who examined the miner. The Department does not believe that any of
these suggestions would be appropriate. The evidentiary limitations
should not be skewed to allow one party to submit more evidence than
another, or evidence of a different quality. Instead, each party must
remain free to tailor the presentation of its case to the facts while
functioning within the same evidentiary limitations applicable to other
parties. The Department also notes that, to the extent these
suggestions are based on a well-founded concern over requiring the
miner to undergo up to five physical examinations within a short time,
a specific concern of one commenter, the Department's proposal allowing
parties to submit evidence to the OALJ will extend the period within
which the parties may seek to have the miner examined.
(f) One commenter urges the Department to allow a physician who
prepared a medical report to rely on the opinion of the miner's
treating physician in the course of preparing his report. The
Department's proposal permits physicians to consider other physicians'
opinions only if the medical reports of those physicians are
independently admitted into the record in accordance with the
regulation's evidentiary limitations. In addition, physicians preparing
medical reports may rely on any treatment or hospitalization record
that is admitted into the record under subsection (a)(4). The
Department does not believe, however, that the regulations need contain
any special treatment of the opinion of a miner's treating physician
other than is provided in Sec. 718.104(d).
(g) The Department has revised subsection (c) in order to clarify
its intent and prevent parties from exceeding the evidentiary
limitations by designating additional physicians as hearing witnesses.
As revised, subsection (c) will permit testimony, either at the formal
hearing or by deposition, by physicians who prepared medical reports.
Other physicians may testify only to the extent that the party offering
their testimony has not reached the limitation imposed by the
regulation on the number of admissible medical reports, or if the
administrative law judge finds good cause for allowing a party to
exceed that limitation. In effect, testimony by a physician who did not
prepare a documentary report will be considered a medical report for
purposes of the evidentiary limitations. Thus, if a party has submitted
only one documentary medical report, it may offer the testimony of one
additional physician. If a party has not submitted any documentary
medical reports, it may offer the testimony of two physicians.
(h) Several commenters believe that each potentially liable
operator should be entitled to obtain its own medical evidence. In its
initial notice of proposed rulemaking, the Department explained that
the limitation on the submission of medical evidence in cases involving
more than one potentially liable operator is necessary to ensure that
claimants are not subject to multiple examinations simply because they
have an employment history that leaves the identity of the responsible
operator in some doubt. 62 FR 3360-61 (Jan. 22, 1997). The comments
offer no basis upon which to revise this provision. One comment
supports the Department's proposal as in accord with the Federal
Judicial Center's Manual for Complex Litigation, 3d (1995), Sec. 20.22-
20.222. Another comment states that district directors should never
permit a potentially liable operator, other than the designated
responsible operator, to submit evidence. The Department disagrees.
Even in multiple operator cases, the proposed regulations allow all of
the potentially liable operators to collectively submit no more
evidence than that permitted the claimant. In the
[[Page 54996]]
event the designated responsible operator fails to develop the
evidence, however, the district director must have the authority to
permit the submission of medical evidence by another potentially liable
party. Ultimately, of course, it will be the responsibility of the
administrative law judge to ensure that the adjudication of the miner's
entitlement is fair.
(i) Several commenters generally request the Department to clarify
the admissibility of hospital records, and the results of autopsies and
biopsies as proposed in Sec. 725.414(a)(4). The Department believes
that proposed subsection (a)(4) would require the admission of any
medical record relating to the miner's respiratory or pulmonary
condition without regard to the limitations set forth elsewhere in
Sec. 725.414. To be sufficient to establish an element of entitlement,
however, a report of autopsy or biopsy must substantially comply with
the applicable quality standards, Sec. 718.106. See Sec. 718.101(b).
The Department has not included an independent provision governing
rebuttal of this evidence. As a general rule, this evidence is not
developed in connection with a party's affirmative case for or against
entitlement, and therefore the Department does not believe that
independent rebuttal provisions are appropriate. Any evidence that
predates the miner's claim for benefits may be addressed in the two
medical reports permitted each side by the regulation. If additional
evidence is generated as the result of a hospitalization or treatment
that takes place after the parties have completed their evidentiary
submission, the ALJ has the discretion to permit the development of
additional evidence under the ``good cause'' provision of Sec. 725.456.
20 CFR 725.416
A number of commenters, including representatives of claimants,
coal mine operators and their insurers, urge the Department to
eliminate informal conferences altogether. They argue that informal
conferences seldom accomplish any purpose, and thus waste considerable
time and resources. The Department disagrees. In the explanation of
Sec. 725.416 that appeared in its initial notice of proposed
rulemaking, 62 FR 3361 (Jan. 22, 1997), the Department explained that
informal conferences serve a variety of useful purposes, including
narrowing issues, achieving stipulations, and crystallizing positions.
The comments received by the Department provide no reason to alter this
view. In order to increase acceptance of the informal conference
procedure, however, the Department believes that the district director
should be able to articulate, in each case, why he believes that an
informal conference would be helpful in the processing of the claim.
Accordingly, the Department proposes to revise subsection (b) in order
to require the district director to provide the parties with a
statement articulating specific reasons why an informal conference
would assist in the voluntary resolution of issues. The reasons must be
tailored to the specific facts of that case. The district director's
failure to include such a statement in his notification of conference
will foreclose the use of sanctions set forth in paragraph (c). In
addition, in order to reduce the parties' costs in participating in an
informal conference, the Department proposes to formally recognize the
district offices' current practice of allowing parties to participate
by telephone in appropriate cases. Although the decision to allow
telephone participation is committed to the discretion of the district
director, the Department's regulations should explicitly acknowledge
the availability of this option, and allow the parties to request its
use by filing a request with the district director.
(b) One comment states that the proposed sanctions set forth in
subsection (c) will lead to further litigation and/or refilings. The
Department has previously addressed this comment. See discussion of
Sec. 725.409.
Subpart F
20 CFR 725.456
(a) The Department proposes to retain the current rules governing
time periods for submitting documentary medical evidence into the
record. A change has been made to paragraph (b)(1) to reflect this
decision, and new paragraphs (b)(2)-(4) and (c) have been added to the
proposal from the Department's current rules (20 CFR 725.456(b)(1)-(3),
(c), (d)). These revisions are fully explained above.
(b) Paragraph (f) has been revised to take into account changes to
section 725.406. Since the proposal would now require that the
Sec. 725.406 pulmonary evaluation be performed by a facility or
physician selected from a list maintained by the Office, language in
subsection (f) that contemplated examination and/or testing by a
facility or physician not approved by the Office has been deleted. See
discussion accompanying Sec. 725.406.
(c) All of the comments related to the Department's proposed
revision of Sec. 725.456 are discussed under Sec. 725.414.
20 CFR 725.457
(a) The Department has explained its proposal to retain the current
rules governing the timely submission of medical evidence in connection
with its explanation of changes to Sec. 725.414. The Sec. 725.414
revision requires a corresponding change in the rule governing the
identification of witnesses in proceedings before the Office of
Administrative Law Judges. The revised regulation allows the testimony
of witnesses relevant to the liability of a potentially liable operator
and/or the identification of the responsible operator only if the
identity of that witness was disclosed to the district director or the
administrative law judge finds extraordinary circumstances. A physician
may testify only if he prepared a medical report admitted into the
record by the district director or administrative law judge.
Alternatively, a physician may testify if his testimony, when
considered as a medical report, does not result in a violation of the
limitations on the quantity of evidence permitted by Sec. 725.414, or
if the administrative law judge finds good cause for allowing the party
offering the testimony to exceed those limitations.
(b) A number of commenters objected to the Department's proposal
limiting the scope of a physician's testimony. They argued that
physicians who testify must be allowed to address all of the medical
evidence of record in order to explain their conclusions, and that
cross-examination of those physicians will depend on reference to
objective testing and medical conclusions contained in other reports.
The Department agrees that the original proposal's limitation was
inappropriate, and has revised paragraph (d) accordingly. As revised,
the regulation will only prevent a physician from testifying with
respect to medical evidence relevant to the miner's condition that is
not admitted into the record.
20 CFR 725.459
One commenter suggests that the Black Lung Disability Trust Fund
should be liable for witness fees incurred by an indigent claimant when
cross-examining an adverse witness. Another commenter argues that the
Department's original proposal, under which the party seeking to cross-
examine a witness must pay the necessary fees to secure that witness,
violates section 28 of the Longshore and Harbor Workers' Compensation
Act, 33 U.S.C. 928, as incorporated by 30 U.S.C. 932(a). Section 28
generally requires that employers pay the reasonable costs
[[Page 54997]]
of successful claimants. In light of these comments, the Department has
reconsidered its approach to the payment of expenses associated with
cross-examination.
The Department now proposes that the costs of cross-examination be
borne by the party relying on the affirmative testimony of that
witness. For example, where an employer submits a report by a
physician, and the claimant seeks to summon the physician to the
hearing for cross-examination, the employer must bear the costs of
reimbursing its own physician. Under the regulation, the employer may
request that the administrative law judge authorize a less intrusive
method of cross-examination, including a deposition, telephone
deposition, or interrogatories, provided that the method authorized
will produce a full and true disclosure of the facts.
The only exception to this general rule is in the case of an
indigent claimant. The Department agrees that a claimant's medical
evidence should not be excluded based on a claimant's financial
inability to make a physician available for cross-examination.
Accordingly, the Department proposes to revise paragraph (b) to allow
an administrative law judge to apportion the costs of cross-examination
where the claimant demonstrates his indigence. The Department does not
agree, however, that the trust fund may be held liable for such fees in
every case. Although the statutory provision governing the disbursement
of monies from the fund, 26 U.S.C. 9501, permits the fund to pay
administrative expenses associated with the black lung benefits
program, the Department does not believe that the expenses of cross-
examination should necessarily be included in this category. Rather,
the responsible operator seeking to cross-examine claimant's witness
should bear liability for such fees, an expense which the operator may
easily control. The fund will be liable for such witness fees in cases
in which there is no coal mine operator liable for the payment of
benefits. See, e.g., Republic Steel Corp. v. U.S. Department of Labor,
590 F.2d 77 (3d Cir. 1978) (holding the fund liable for the payment of
attorney's fees because the fund, the party liable for the payment of
claimant's benefits, stood in the shoes of a responsible operator).
Accordingly, in a case in which the claimant is indigent and a party
seeks to cross-examine a witness of claimant's, the administrative law
judge must apportion the costs among the claimant and the party
opposing the claimant's entitlement. Where that party is an operator,
the operator may be asked to bear all or part of the costs of cross-
examination, as appropriate. Where that party is the fund, the fund is
subject to the same apportionment rules. In addition, the fund will
bear liability for the costs of cross-examining the doctor who
administered the section 413(b) pulmonary evaluation. See Sec. 725.406.
The Department's proposal has several advantages. First, it avoids
potential due process problems associated with the Department's
previous proposal because no financial burden is placed on parties who
wish to exercise their right to cross-examination except in the case of
a claimant who is unable to pay the associated costs. At the same time,
requiring the parties to show the necessity of a specific means of
cross-examination, and allowing the administrative law judge to
exercise sound discretion in addressing requests for cross-examination,
protects witnesses from undue burdens and parties from undue expense.
Under this proposal, operators would be required to bear the cost of
witness fees only for their own witnesses, indigent claimants'
witnesses, and for claimants who are ultimately successful in
establishing their entitlement to benefits.
20 CFR 725.465
Section 725.465 sets forth the conditions under which an
administrative law judge may dismiss a claim, and also authorizes the
administrative law judge to dismiss a party who is not a proper party
to the claim under Sec. 725.360. The regulation was not among the
provisions the Department opened for comment in its previous notice of
proposed rulemaking, 62 FR 3341 (Jan. 22, 1997), and the Department did
not receive any comments directed to this section. The Department now
proposes to revise this regulation, however, to ensure that all
potentially liable operators remain parties to proceedings before the
administrative law judge in the absence of the Director's agreement to
their dismissal. In proposing new regulations governing the
identification of responsible operators, the Department intends that
all potentially liable operators named by the district director have
the opportunity to participate in the adjudication of the claimant's
entitlement both before the administrative law judge and on appeal.
Thus, under this proposed change, even if an administrative law judge
concludes that one of the potentially liable operators is the
responsible operator as defined by Subpart G of Part 725, he may not
dismiss the other potentially liable operators absent the Director's
consent. In the event that his responsible operator finding is reversed
or vacated by either the Benefits Review Board or a federal court of
appeals, the dismissal of other potentially liable operators before or
simultaneously with adjudication of the claimant's entitlement would
adversely impact the financial interests of the Black Lung Disability
Trust Fund. Given the absence of the correct potentially liable
operator as a party to a case, liability might well be imposed on the
fund, especially since the proposal prohibits the re-naming of
potentially liable operators after a case is referred to the Office of
Administrative Law Judges, Sec. 725.407(d).
Subpart G
20 CFR 725.491
(a) One commenter objects to the Department's attempt to clarify
the liability of independent contractors under the Black Lung Benefits
Act. The commenter argues that in imposing liability on independent
contractors who do not have a ``continuing presence'' at the mine, the
Department is exceeding its statutory mandate. Specifically, the
commenter objects to the Department's decision to codify the D.C.
Circuit's decision in Otis Elevator Co. v. Secretary of Labor, 921 F.2d
1285 (D.C. Cir. 1990), instead of the Fourth Circuit's decision in Old
Dominion Power Co. v. Donovan, 772 F.2d 92 (4th Cir. 1985). The
Department has consistently advocated a broad interpretation of the
statutory provision defining ``operator'' and its application to
independent contractors, both in the context of litigation under
subchapters 1 through 3 of the Federal Coal Mine Health and Safety Act
and under the Black Lung Benefits Act. The D.C. Circuit accepted the
Department's views in Otis Elevator while the Fourth Circuit rejected
the Department's position in Old Dominion Power. In addition, while the
Department was preparing its initial notice of proposed rulemaking, the
Tenth Circuit announced its agreement with Otis Elevator: ``Although
Congress may have been specially concerned with contractors who are
engaged in the extraction process and who have a continuing presence at
the mine, * * * section 3(d) by its terms is not limited to these
contractors.'' Joy Technologies v. Secretary of Labor, 99 F.3d 991, 999
(10th Cir. 1996), cert. denied, 117 S. Ct. 1691 (1997).
The commenter cites the Third Circuit's decision in National
Industrial Sand Ass'n v. Marshall, 601 F.2d 689 (3d Cir. 1979), in
support of its position that the term ``operator'' should be narrowly
construed. In National
[[Page 54998]]
Industrial Sand, however, the Third Circuit recognized that, as of the
date of the court's opinion, the Department of Labor had not yet
promulgated regulations under the Federal Mine Health and Safety Act
defining the degree to which independent contractors were subject to
that Act's health and safety provisions. The dicta cited by the
commenter thus does not constitute a rejection of the Department's
position on coverage. Given the adoption of its position by the D.C.
and Tenth Circuits, and its rejection by only the Fourth Circuit, there
appears to be no reason for the Department to adopt in its regulations
a decision at odds with its consistent interpretation, and the
commenter provides none.
The same commenter suggests that the Department's interpretation
would result in the coverage of food and beverage workers who serve
lunch to coal miners. The Act requires that those who contract
pneumoconiosis as a result of work in the Nation's coal mines receive
compensation for the totally disabling effects of that disease.
Although it is difficult to imagine that food and beverage workers will
be sufficiently exposed to coal mine dust to contract pneumoconiosis,
those individuals who are totally disabled as a result of that
exposure, and who meet the definition of ``miner'' (``* * * any
individual who * * * has worked in or around a coal mine or coal
preparation facility in the extraction or preparation of coal,'' 30
U.S.C. 902(d)), are no less entitled to compensation than are other
miners. The employer of such individuals must assume liability for the
payment of any benefits to which they are entitled, provided that the
employer meets the criteria for a potentially liable operator set forth
in Sec. 725.494.
(b) One commenter argues that the Department's exclusion in
Sec. 725.491(f) of both state and federal governments from potential
liability under the Act is inappropriate. The commenter suggests that
the Department's proposal excluding the United States will cause
federal employees to file claims under the Black Lung Benefits Act
rather than the Federal Employees Compensation Act (FECA). The
Department disagrees; the proposed regulation merely codifies the
holding of the Fourth Circuit in Eastern Associated Coal Corp. v.
Director, OWCP, 791 F.2d 1129 (4th Cir.1986). The court in that case
held that the United States could not be considered a responsible
operator based on the miner's most recent employment as a federal coal
mine inspector. To the extent that such employees develop
pneumoconiosis as a result of previous coal mine employment, they must
be permitted to file claims under the Act. To the extent that they are
injured during the course of their federal employment, FECA provides
the appropriate remedy. The Department does not agree that its adoption
of the Fourth Circuit's decision in Eastern Associated Coal will result
in an increase in unwarranted claims under the Act.
The same commenter argues that the Department cannot relieve state
governments of their liability under the Act, and that the Department's
approach under the Black Lung Benefits Act is inconsistent with its
approach under the Fair Labor Standards Act. The comment, however,
fails to recognize a fundamental difference between the two statutes:
the Black Lung Benefits Act contains no mention of states as employers
subject to potential liability for black lung benefits, while the Fair
Labor Standards Act explicitly lists state governments among the
``public agencies'' that may be considered employers for FLSA purposes.
Supreme Court caselaw illustrates the importance of this distinction.
In Gregory v. Ashcroft, 501 U.S. 452 (1991), the Court considered the
applicability of the Age Discrimination in Employment Act to judges
employed by the State of Missouri. The Court observed that, although
the Tenth Amendment to the United States Constitution did not prohibit
Congress from exercising the power derived from the Commerce Clause
with respect to state governments, ``we must be absolutely certain that
Congress intended such an exercise.'' 501 U.S. at 464. The Fair Labor
Standards Act meets this test; Congress clearly intended that the FLSA
apply to public agencies, including state governments. In the absence
of similar language in the Black Lung Benefits Act, however, the
Department cannot seek to hold states liable for the payment of black
lung benefits.
(c) One comment states that the rebuttable presumption of exposure
to ``coal dust'' set forth in subsection (d) is inconsistent with the
presumption set forth in Sec. 725.202 of this part. The Department
agrees that the two provisions should be harmonized. Both the Third and
Eleventh Circuits have agreed that the Department's use of the term
``coal mine dust'' in Sec. 725.202 represents a permissible reading of
the Black Lung Benefits Act. Williamson Shaft Contracting Co. v.
Phillips, 794 F.2d 865, 870 (3d Cir. 1986); William Brothers, Inc. v.
Pate, 833 F.2d 261, 264 (11th Cir. 1987). Congress intended that the
Black Lung Benefits Act provide compensation for any ``chronic dust
disease of the lung * * * arising out of coal mine employment.'' 30
U.S.C. 902(b). The Department has consistently interpreted this mandate
broadly, by including diseases such as silicosis in the definition of
the term ``pneumoconiosis,'' provided they arise out of coal mine
employment. See 43 FR 36825 (Aug. 18, 1978). The Department accordingly
proposes to revise subsection (d) to make it conform with Sec. 725.202,
and to revise subsection (a)(2)(i) to ensure the consistent use of the
phrase ``coal mine dust.''
20 CFR 725.492
(a) One commenter suggests that the Department's proposed
regulations would require the purchaser of a coal mine company's assets
in a bankruptcy proceeding to assume the bankrupt company's black lung
benefits liabilities, and that this provision would destroy the coal
mining industry in Maryland. The Secretary's regulations merely repeat
the language of the statute, which provides that successor operator
liability may arise from ``corporate reorganizations'' and
``liquidations,'' among other listed transactions. 30 U.S.C.
932(i)(3)(A). The Department is not free to disregard Congress'
explicit intent to cover a wide variety of transactions in which coal
mine assets may be sold. The Act and regulations generally impose
potential liability on a successor operator, however, only after the
transfer of coal mine assets from a seller that has failed to secure
its potential liability in violation of the statutory mandate at 30
U.S.C. 933(a); if the seller obtained black lung insurance, a purchaser
of its coal mine assets will probably not face any black lung
liabilities arising from the seller's previous operation of the mine.
(b) Another commenter observes that the Department's regulations
would shift liability to a successor operator, notwithstanding the fact
that a prior operator that had gone out of business had insurance to
cover a given claim. The Department disagrees that the proposed
regulations would produce this outcome. The Department's first notice
of proposed rulemaking contained an example in an attempt to make the
intent of the regulation clear. See 62 FR 3365 (Jan. 22, 1997). Indeed,
the regulations specifically provide that a prior operator shall remain
liable if it meets the requirements of Sec. 725.494, Sec. 725.492(d).
See also Sec. 725.493(b)(1). One of Sec. 725.494's requirements is that
the prior operator must remain financially capable of assuming
liability for the payment of benefits. An operator is deemed capable of
assuming liability
[[Page 54999]]
for a claim if it obtained insurance and the insurance company is not
insolvent, Sec. 725.494(e)(1). Section 725.495 assigns liability to the
operator that most recently employed the miner. Thus, if a miner's most
recent employer obtained insurance and subsequently sold its assets or
dissolved into a parent corporation, section 725.495 would require the
most recent employer's insurer to assume liability for any benefits
payable to the claimant. Only if that insurer is no longer solvent will
the Department seek to impose liability on a successor or parent
corporation. Because the Department believes that the regulations are
clear on this point, no changes have been made.
20 CFR 725.493
(a) The Department has made a technical change to the language of
subsection (a)(2) to make the regulation easier to read.
(b) One comment objects to subsection (a)(1) as an attempt to
redefine independent contractors and sole proprietors as employees, in
order to force coal mine operators to assume liability for any benefits
payable to those individuals. In administering the Black Lung Benefits
Act for the past 25 years, the Department has seen coal mine companies
use a variety of financial arrangements in an effort to avoid liability
for black lung benefits. These have included the designation of all
miners as partners, the use of 11-month employment contracts with an
operator's subsidiaries, and the establishment of separate, underfunded
companies to provide labor to a coal mine operator. Subsection (a)(1)
is intended to foreclose those efforts by recognizing a broad range of
employment relationships between coal mine companies and those
individuals who actually mine coal. By proposing more specific language
defining an ``employment relationship,'' the Department hopes to ensure
that coal mine operators provide compensation to all their employees
with totally disabling pneumoconiosis. It is not the Department's
intent, however, to redefine ``independent contractor'' or ``sole
proprietor'' simply to make coal mine operators liable for those
individuals' benefits. The Department has added language to subsection
(a)(1) to clarify its purpose, and invites comment on whether the
proposed language accomplishes the Department's intent.
(c) One comment suggests that the ``control'' test of subsection
(a)(2) is unconstitutional insofar as it creates federal common law.
The comment contains no citation to specific precedent and no further
explanation. The comment therefore provides the Department with an
insufficient basis for altering the proposal.
20 CFR 725.494
(a) The Department has made several technical changes to the
language of the proposed regulation to make the regulation easier to
read.
(b) One comment suggests that the presumptions set forth in
subsections (a) and (e) are illegal and violate the Supreme Court's
decision in Greenwich Collieries. The Department's authority to create
regulatory presumptions is discussed in detail elsewhere in this
preamble. The Department notes that the presumption set forth in the
proposed version of subsection (a) merely reflects the presumption
currently contained in Sec. 725.493(a)(6). Subsection (e) is not a
presumption at all, but merely a recitation of the evidence that will
support a finding that a coal mine operator is financially capable of
assuming liability for the payment of benefits, one of the Secretary's
prerequisites for naming a company a potentially liable operator.
(c) One miner comments that the only coal mining company he worked
for after 1969 is now bankrupt, so that the Sec. 725.494(d) requirement
is not met in his case. He asks where that leaves miners like him. A
miner's failure to meet this requirement has no impact on his potential
entitlement to benefits. It merely means that if he is found entitled,
his benefits will be paid by the Black Lung Disability Trust Fund
rather than a coal miner operator or its insurer.
20 CFR 725.495
Several commenters argue that Sec. 725.495 impermissibly shifts the
burden of proof as to the identity of a responsible operator from the
Department to employers. The commenters state that the proposed
language does not codify current law, but rather the unsuccessful
litigation position advanced by the Department in Director, OWCP v.
Trace Fork Coal Co., 67 F.3d 503 (4th Cir. 1995). In its explanation of
the proposed revision of Sec. 725.495, the Department acknowledged that
its proposal addressed issues not resolved by the current regulations.
62 FR 3364-65 (Jan. 22, 1997). The commenters' implication that the
proposal violates the Fourth Circuit's decision, however, is mistaken.
In Trace Fork, the court explicitly observed that ``[t]he Black Lung
Benefits Act and its accompanying regulations do not specifically
address who has the burden of proving the responsible operator issue.''
67 F.3d at 507. In the absence of specific guidance, the court
concluded that the Secretary bore this burden. In proposing these
regulations, the Department is not violating Trace Fork, but rather
filling the void noted by the court. The Department's prior explanation
in its original proposal, 62 FR 3363-65 (Jan. 22, 1997), contains a
full explanation of the Department's proposed changes.
Subpart H
20 CFR 725.502
(a) Paragraph (b)(1), as originally proposed, made monthly benefits
due on the ``first business day of the month following the month for
which the benefits are payable.'' 62 FR 3412 (Jan. 22, 1997). Although
no comments were received concerning this provision, the Department has
determined that paragraph (b)(1) should be changed to make monthly
benefits due on the fifteenth calendar day of the month. This change
reflects current departmental practice with respect to the payment of
benefits by the Trust Fund. The change will promote consistency on the
part of the Trust Fund and operators by requiring the payment of
monthly benefits on the same schedule. Thus, the change will allow
uniform claimant expectation as to the regular date of payment,
notwithstanding the identity of the payor.
The proposed change also affects the example of hypothetical due
dates for the payment of benefits contained in the initial notice of
proposed rulemaking, 62 FR 3366 (Jan. 22, 1997). In that example, an
administrative law judge's order awarding benefits issues on August 15,
1996. Under paragraph (b)(1), as originally proposed, the operator must
pay the monthly benefits due for August within ten days after the first
business day of September (i.e., September 10, 1996) to avoid a
penalty; September is the ``month following the month for which the
benefits are payable.'' Paragraph (b)(1), as reproposed, would require
the operator to pay the monthly benefits for August within ten days
after the fifteenth of September to avoid the late-payment penalty
(i.e., September 25, 1996). As discussed in the January 1997 preamble,
retroactive benefits covering the period before the ALJ's August 15,
1996, award, will not be due until the district director completes the
computation of these amounts and notifies the parties. Such
notification will be completed within 30 days of August 15, 1996.
(b) Several comments state that imposition of the twenty percent
penalty for failure to commence the
[[Page 55000]]
timely payment of benefits after entry of an effective award is unfair
and punitive when the penalty applies to an award which is still in
litigation. The Department disagrees. The Black Lung Benefits Act
incorporates the twenty percent penalty provision of the Longshore and
Harbor Workers' Compensation Act, 33 U.S.C. 914(f), as incorporated by
30 U.S.C. 932(a). The purpose of the penalty is to ensure prompt
compliance by an employer with its benefits obligations under the terms
of an award, and without regard to further proceedings involving the
claim. See 43 FR 36815 (Aug. 18, 1978), Sec. 725.607, Discussion and
changes (a). The existence of the Black Lung Disability Trust Fund does
not change that purpose. As discussed in the first notice of proposed
rulemaking, 62 FR 3365-66 (Jan. 22, 1997), only some responsible
operators commence the payment of benefits upon entry of an award when
further proceedings are pending; even fewer pay retroactive benefits.
Noncompliance shifts the burden of paying interim monthly benefits to
the Trust Fund to ensure the claimant receives benefits until
compliance ensues, or the litigation terminates with affirmation of the
award or its reversal. Operators therefore routinely use the Trust Fund
as a surrogate to defer liabilities or reduce the risk of losing
interim payments in the event an award is reversed, and the beneficiary
cannot repay the interim benefits. The Department recognizes the fiscal
reasoning behind this practice. Congress, however, imposed primary
responsibility for paying benefits on the coal mining industry, and
intended individual operators to assume liability to the maximum extent
possible. See generally Old Ben Coal Co. v. Luker, 826 F.2d 688, 693
(7th Cir. 1987), quoting S. Rep. No. 209, 95th Cong., 1st Sess. 9
(1977). Congress created the Trust Fund to fulfill two limited roles:
pay claims for which no individual operator could be held liable, and
assume temporary liability if the responsible operator fails or refuses
to pay. 26 U.S.C. 9501(d). With respect to the latter role, the Fund
acts to protect the claimant by ensuring the continuous and timely
receipt of benefits until the operator pays or the award is overturned.
This objective does not extend to insulating the responsible operator
from the economic risks of paying benefits on an award which might
ultimately be reversed. Moreover, requiring payment of benefits on a
non-final award does not infringe the operator's right to challenge the
award. Section 725.502 simply shifts the economic risk that the initial
award is incorrect from the Trust Fund to the operator. The operator
receives adequate protection of its interests through its right to
develop evidence and participate in the adjudication process. Such
participation gives the operator a voice in the merits of the award and
the opportunity to challenge an award if it disagrees with it.
Consequently, the Department believes that the availability of
penalties to foster prompt compliance with the terms of an award is
warranted, even if the operator pursues an appeal. Section 725.502
implements the Congressional mandate that individual coal mine
operators bear the burden of paying benefits whenever liability exists.
(c) One comment objects that Congress never intended to require a
responsible operator to pay retroactive benefits before an award
becomes final in claims filed after 1981. In general, the party liable
for the payment of a claim must pay all benefits due under the terms of
an award when that award becomes effective. Congress has permitted one
exception. Under 26 U.S.C. 9501(d)(1)(A), the Trust Fund will pay
benefits on a claim filed after January 1, 1982 ``only for benefits
accruing after the date of such initial determination'' if the Fund is
paying interim benefits on behalf of an operator who has not made a
payment which is due. This statutory exception, by its language,
applies only to the Fund, and only to interim benefits payments. In all
other situations, the claimant is entitled to the full payment of
benefits authorized by the award even if litigation continues. If
payments are withheld by the operator until the award becomes final in
a post-1981 claim, the operator must pay interest as well. 30 U.S.C.
932(d). Contrary to the commenter's view, Congress clearly intended
responsible operators to pay retroactive benefits as well as monthly
benefits immediately when a claimant's entitlement is established by an
effective benefits award.
(d) One comment objects to the requirement in paragraph (b)(2) that
an operator must pay retroactive benefits despite continuing litigation
over the propriety of the award itself. The commenter argues that an
operator has no realistic chance of recovering the benefits if the
award is ultimately reversed, and suggests the Trust Fund should
reimburse an operator who pays retroactive benefits. A right to
benefits established by an award, however, cannot be conditioned on the
likelihood the operator will recover the benefits if the claimant is
ultimately found ineligible. If the claimant has a present right to
receive benefits, then the operator must pay according to the terms of
the award without regard to the possibility of a later reversal. The
terms of the award include all benefits to which the miner is entitled,
including retroactive benefits. The Department also rejects the
suggestion that the Fund reimburse any operator who pays retroactive
benefits but thereafter defeats the claim. The Fund is not authorized
to reimburse operators except for those claims for which liability has
transferred to the Fund pursuant to law. See 26 U.S.C. 9501(d)(6), (7).
(e) One comment suggests three additions to this section: (i) a
requirement that the Trust Fund pay interim benefits if a responsible
operator obtains a stay of payments pursuant to 33 U.S.C. 921(c), as
incorporated by 30 U.S.C. 932(a), until the stay is dissolved; (ii)
clarification that a responsible operator must pay benefits during the
pendency of its modification petition until the petition is granted;
and (iii) language stating that an administrative law judge's award
becomes final despite any order leaving the computation of benefits to
the district director. No changes are necessary in response to the
commenter's suggestion. (i) The Department agrees that the Trust Fund
must pay benefits on an interim basis if the operator obtains a stay of
payments. This obligation derives from Section 9501 of the Internal
Revenue Code, which defines the Fund's operation and payment
obligations. 26 U.S.C. 9501. The expenditures which the Fund may
undertake include the payment of benefits when the operator liable for
benefits ``has not made a payment within 30 days after that payment is
due[.]'' 26 U.S.C. 9501(d)(1)(A)(ii). If an operator obtains a stay and
a benefit payment comes due during the pendency of the stay, the Trust
Fund will make the payment. (ii) Clarification of an operator's
benefits obligation during modification proceedings is unnecessary.
Section 725.502(a)(1) is unambiguous: ``An effective order shall remain
in effect unless it * * * is superseded by an effective order issued
pursuant to Sec. 725.310'' (regulation implementing modification). Once
an effective order exists requiring an operator to pay benefits, the
operator must pay until that order is overturned. Filing a modification
petition does not supersede an otherwise effective award. The petition
merely initiates the process to reopen the award. During the pendency
of the modification proceedings and prior to entry of an effective
decision on modification, the terms of the existing decision prevail,
[[Page 55001]]
and the operator must pay benefits in compliance with that decision.
(iii) The commenter cites Keen v. Exxon Corp., 35 F.3d 226 (5th Cir.
1994), as a potential loophole to the finality of administrative law
judge decisions. In Keen, an administrative law judge approved a claim
under the Longshore and Harbor Workers' Compensation Act, but ordered
the district director to calculate the amount of compensation due. The
employer paid the benefits within ten days of the district director's
order rather than the administrative law judge's decision. The Court
acknowledged that the employer possessed sufficient information to
determine for itself the amount of benefits due, rather than wait for
the district director's findings. The Court, however, stressed that the
administrative law judge's decision was not ``final'' precisely because
it required the district director to make the actual computation. No
change in the regulations is necessary to account for the practice
followed by the administrative law judge in Keen. Section 725.502(a)(2)
states that an administrative law judge's order becomes ``effective''
when it is filed in the office of the district director. Once an
administrative law judge's order is effective, benefits are due under
Sec. 725.502(a)(1) and ``shall be paid.'' In any event, orders akin to
the one issued in Keen are rarely, if ever, used in the black lung
program. Awards by administrative law judges ordinarily identify the
number of beneficiaries and the onset date(s) for payment. The amount
of the prospective benefits to be paid within these parameters is fixed
by law; no independent computation by the district director is
therefore needed. Moreover, the Department has already placed the
burden of computing the retroactive benefits on the district director
in Sec. 725.502(b)(2), and made clear that those benefits are not due
until the district director issues an order setting the amount. Since
Sec. 725.502(b)(1) is unambiguous that prospective benefits must
commence by a date certain once an award is effective, the operator
cannot use the corollary order for retroactive benefits as a pretext to
avoid paying the prospective benefits.
20 CFR 725.503
Several comments take issue with the Department's treatment of the
date from which benefits are payable in cases in which a factfinder
grants modification on the ground of a change in conditions. One
comment urges the Department to require that when the evidence does not
establish the specific month in which the miner became totally disabled
due to pneumoconiosis, benefits be made retroactive to the date of the
adverse decision that was the subject of modification. Another comment
states that the revised proposal permits the payment of benefits before
the onset of the miner's totally disabling pneumoconiosis, in violation
of incorporated provisions of the Longshore Act.
The Department's initial proposal could have led to considerable
litigation as to the date from which benefits should be paid in change
of condition cases. The Department now proposes a different method to
determine this commencement date, one which will give preclusive effect
to an earlier factfinder's denial, but will also be relatively easy to
apply. In all other successful miners' claims, benefits are awarded as
of the month of onset of the miner's totally disabling pneumoconiosis.
If that month cannot be established, benefits are payable from the
month in which the miner filed his application, based on the logical
premise that the filing date would be relatively close to the date on
which the miner believed that he was entitled to benefits. This method
has worked well in the adjudication of black lung claims in general,
and the Department is therefore proposing a similar method for
determining the commencement date in change of condition cases.
Although every effort will be made to determine the precise date on
which the miner became totally disabled due to pneumoconiosis, the date
on which the miner requested modification of a previous denial
represents an equitable fallback in cases in which the evidence is
insufficient to resolve the issue. In determining the commencement
date, a factfinder may award benefits prior to the date of the
modification request only where credible medical evidence demonstrates
that the miner's pneumoconiosis became totally disabling prior to that
date. In no event may such evidence be used to justify an award which
predates the effective date of the most recent factfinder's denial of
the claim. Conversely, a factfinder may not award benefits retroactive
to the date of the request where more recent credible evidence
demonstrates that the miner did not become totally disabled until a
later date.
20 CFR 725.515
The Department did not propose revisions to Sec. 725.515 in its
initial notice of proposed rulemaking, 62 FR 3338 (Jan. 22, 1997). The
Department has since determined that the regulation should be amended
to conform it to applicable law. Section 16 of the Longshore and Harbor
Workers' Compensation Act prohibits the garnishment of benefits, 33
U.S.C. 916; this provision is incorporated into the Black Lung Benefits
Act. 30 U.S.C. 932(a). Section 725.515 implements section 16. 20 CFR
725.515. In 1975, Congress enacted section 459 of the Social Security
Act, 42 U.S.C. 659, to permit the garnishment of federal pay and
benefits for alimony and child support obligations. Congress thereafter
amended the garnishment provisions in 1977 to clarify their
applicability to benefits payments made by the federal government;
black lung benefits were specifically excluded from coverage. Congress
removed the exclusion, however, in 1996 legislation, which became
effective on February 22, 1997. Pub. L. No. 104-193, Sec. 362(d), 110
Stat. 2247. Thus, black lung benefits paid by the Black Lung Disability
Trust Fund are subject to garnishment for child support and alimony.
The Office of Personnel Management (OPM) is authorized to issue
garnishment regulations for the Executive Branch implementing 42 U.S.C.
659. Exec. Order No. 12,105, 43 FR 59,465 (Dec. 19, 1978). OPM recently
amended its regulations to conform to the 1996 amendments and permit
garnishment of federal black lung benefits paid by the Trust Fund. 63
FR 14,756, 14,758 (March 26, 1998) (to be codified at 5 CFR
581.103(c)(6)). Because 42 U.S.C. 659 is a waiver of sovereign
immunity, however, it does not alter any anti-alienation provision
governing payments by private parties. See generally Moyle v. Director,
OWCP, 147 F.3d 1116 (9th Cir. 1998), pet. for cert. filed, No. 98-927
(Dec. 3, 1998) (holding that 42 U.S.C. 659 authorizes garnishment of
longshore benefits payable by the Special Fund to satisfy beneficiary's
obligation to pay alimony despite 33 U.S.C. 916, which applies only to
private employers or insurers). Consequently, 20 CFR 725.515 must be
amended to reflect the limitations on the coverage of section 16:
benefits payments by a responsible operator cannot be garnished to
satisfy alimony or child support obligations, while payments which are
the liability of the Trust Fund can be garnished.
20 CFR 725.533
Section 725.533 was not among the provisions which the Department
opened for comment in its previous notice of proposed rulemaking, 62 FR
3341 (Jan. 22, 1997). In connection with the proposed deletion of
section 725.403, however, which governs claims filed under section 415
of the Act, 30 U.S.C. 925, the Department proposes
[[Page 55002]]
corresponding deletions to paragraphs (b) and (c) of section 725.533.
These paragraphs govern the payment of benefits in section 415 claims.
Paragraphs (d)-(g) have been redesignated paragraphs (b)-(e). The
Department does not intend to alter the rules applicable to any section
415 claim that may still be in litigation, and 20 CFR 725.533(b), (c)
will remain applicable to any such claim. Parties interested in
reviewing section 725.533 may consult earlier editions of the Code of
Federal Regulations or the Federal Register in which the regulation was
originally published. The Department invites comment on whether section
725.533 should be retained in the Code of Federal Regulations.
20 CFR 725.543
Section 725.543 was not among the provisions which the Department
opened for comment in its previous notice of proposed rulemaking, 62 FR
3341 (Jan. 22, 1997), and the Department did not receive any comments
specifically directed to this section. The Department did receive a
number of general comments critical of the application of the criteria
used to determine whether recoupment of an overpayment would defeat the
purposes of title IV of the Federal Coal Mine Health and Safety Act or
would be against equity and good conscience. Although the Black Lung
Benefits Act incorporates these waiver criteria from the Social
Security Act, 30 U.S.C. 923(b), 940, incorporating 42 U.S.C. 404(b),
Sec. 725.543 currently incorporates the regulations promulgated by the
Social Security Administration under its administration of Part B of
the Black Lung Benefits Act. Because virtually no new applications for
benefits are filed under Part B, it is unlikely that the Part B
regulations will be amended to reflect new interpretations of the
statutory criteria by the Social Security Administration and the
federal courts. In fact, the Part B regulations currently incorporated
in Sec. 725.543 which define ``fault,'' ``defeat the purpose of title
IV,'' and ``against equity and good conscience,'' Secs. 410.561b,
410.561c, and 410.561d, were last published in the Federal Register in
1972. By contrast, the regulations governing claims under Title II of
the Social Security Act, contained in 20 CFR Part 404, have been
amended to keep pace with current law. Accordingly, the Department
proposes to amend section 725.543 to incorporate Social Security's more
current standards for establishing waiver of recovery of an
overpayment.
20 CFR 725.544
Section 725.544 was not among the regulations which the Department
opened for comment in its previous notice of proposed rulemaking, 62 FR
3341 (Jan. 22, 1997). One comment pointed out, however, that current
law allows agencies of the United States to compromise claims of the
United States government of not more than $100,000. The Department
proposes to amend the regulation to reflect this change, and to delete
the reference to the Federal Claims Collection Act of 1966, which has
been repealed. The relevant provision governing compromise of claims by
the United States is now codified in the United States Code at 31
U.S.C. 3711.
20 CFR 725.547
(a) The original proposal extended the right to seek waiver of
recovery of an overpayment to all claimants, without regard to whether
recovery was sought by a responsible operator or the Black Lung
Disability Trust Fund. Many commenters urge the Department to
promulgate rules governing recovery of overpayments based on the
incorporated provisions of the Longshore and Harbor Workers'
Compensation Act, 33 U.S.C. 914(j), 922, as incorporated by 30 U.S.C.
932(a). Pursuant to these provisions, overpaid amounts may be recovered
only by withholding future benefit payments. Other commenters object to
the proposal on the ground that it will make more difficult operator
recovery of overpayments. The policy considerations governing this
regulatory revision were fully discussed in the Department's original
proposal, 62 FR at 3366-3367 (Jan. 22, 1997), and the comments suggest
no new basis for further change.
(b) Several comments state that this rule would unconstitutionally
deprive operators of property rights, while other comments argue that
it would deprive operators of an effective right of appeal. The process
used to adjudicate applications for black lung benefits provides coal
mine operators with the right to notice and the opportunity for a
hearing before the issuance of an effective award, the only award which
mandates payment by a coal mine operator. Federal courts have
considered similar allegations with respect to the entitlement
adjudication scheme used under the Longshore Act, a scheme identical to
that used to adjudicate claims for black lung benefits, and have
unanimously concluded that the Longshore Act does not violate
employers' constitutional rights. Schmitt v. ITT Federal Electric
Int'l., 986 F.2d 1103 (7th Cir. 1993); Abbott v. Louisiana Insurance
Guaranty Ass'n., 889 F.2d 626 (5th Cir. 1989), cert. denied, 494 U.S.
1082 (1990). Because the Longshore Act is even more restrictive
regarding an employer's right to recover an overpayment than the
Department's proposed black lung benefits regulations, see 62 FR 3366
(Jan. 22, 1997), the Department does not agree that the proposed scheme
is unconstitutional. Similarly, there is no constitutionally recognized
right of appeal. As under the Longshore and Harbor Workers'
Compensation Act, operators may appeal in order to reduce their future
benefit obligations, but success on appeal does not necessarily mandate
the repayment of all previously paid benefits. Moreover,
notwithstanding the proposal, coal mine operators may seek recoupment
of any overpaid amounts. In fact, they are entitled to repayment
provided the claimant is not entitled to waiver. These waiver
provisions have been used by the Department throughout its
administration of Part C of the Act to determine whether an overpaid
claimant must repay amounts owed the Black Lung Disability Trust Fund.
The Department's experience clearly demonstrates that application of
these waiver criteria does not wholly foreclose the recoupment of
overpaid amounts.
(c) One comment states that the Department's legal analysis of the
overpayment issue neglected Sec. 430 of the Black Lung Benefits Act, 30
U.S.C. 940. Section 430 provides that the provisions of the Black Lung
Benefits Act of 1972, the Black Lung Benefits Reform Act of 1977, and
the Black Lung Benefits Amendments of 1981 applicable to Part B of the
Black Lung Benefits Act shall also apply, as appropriate, to Part C of
the Act. None of these statutory enactments prohibits the Department
from applying the same waiver criteria to the recoupment of overpaid
amounts by both operators and the Black Lung Disability Trust Fund.
(d) Several comments address the test used to determine whether or
not claimants are entitled to waiver of recoupment, Secs. 725.542,
725.543. The Department also heard considerable testimony at both
hearings on the overpayment issue. The Department does not contemplate
changing the legal test for waiver since it is based on statutory
language incorporated into the BLBA from the Social Security Act, 30
U.S.C. 923(b), 940, incorporating 42 U.S.C. 404(b). The Department has
altered Sec. 725.543 to make the Department's interpretation of these
criteria consistent with the current
[[Page 55003]]
Social Security Administration standards.
20 CFR 725.548
In both its current version and the Department's proposed revision,
section 725.547 is titled ``Applicability of overpayment and
underpayment provisions to operator or carrier.'' Despite this title,
the regulation contains two paragraphs, (c) and (d), that are intended
to apply to overpayment and underpayment issues regardless of whether
the Black Lung Disability Trust Fund or a responsible operator is
liable for the payment of benefits. These paragraphs authorize the
district director to enter appropriate orders to protect the rights of
the parties with regard to overpayments or underpayments, and provide
that disputes arising out of such orders are to be resolved using the
same procedures used to resolve entitlement and liability issues. In
reviewing its proposed revision to section 725.547, the Department
realized that the title of the regulation might mislead parties into
believing that paragraphs (c) and (d) are applicable only in cases
involving responsible operator liability. Because the Department
intends that the same procedures be used to adjudicate overpayment and
underpayment issues regardless of the liable party, the Department
proposes that paragraphs (c) and (d) be relocated in a separate
regulation with a more general title. Consequently, the Department
proposes the addition of section 725.548, titled ``Procedures
applicable to overpayments and underpayments.''
Subpart I
20 CFR 725.606
(a) Paragraph (c), as originally proposed, contains a typographical
error. In the first sentence, the second reference to paragraph (a)
should be a reference to paragraph (b). Paragraph (b) describes the
amount of negotiable securities which an employer must deposit with a
Federal Reserve Bank to secure the payment of benefits.
(b) One comment disagrees generally with the requirement for post-
award security by coal mine construction employers, and the imposition
of personal benefits liability on certain corporate officers if the
employer fails to obtain security. The objection to post-award security
is unfounded because the Black Lung Benefits Act authorizes it. Any
operator of a coal mine, as defined by 30 U.S.C. 802(d), is required to
obtain insurance or qualify as a self-insurer to ensure its financial
ability to meet its potential benefits liabilities. 30 U.S.C. 933(a).
Section 422(b) excepts certain employers engaged in coal mine
construction or transportation from these requirements, provided they
are not also operators of coal mines. 30 U.S.C. 932(b). The exception
effectively permits these employers to confront their liabilities as
they occur on a claim-by-claim basis, rather than anticipate funding
for their liabilities through insurance or self-insuring. Section
422(b), however, further states: ``Upon determination by the Secretary
of the eligibility of the employee, the Secretary may require [a coal
mine construction or transportation] employer to secure a bond or
otherwise guarantee the payment of such benefits to the employee.'' 30
U.S.C. 932(b). Although these employers need not insure themselves
against prospective liability, they may be required to secure benefits
once a claim is awarded. If the employer fails or refuses to obtain
security for an existing award after being ordered to do so, that
employer is no different than a coal mine operator who does not fulfill
its legal obligation to insure or self-insure its potential liability
for future awards. While the statute provides several coercive remedies
against such employers, section 423(d)(1) also authorizes the
Department to impose liability, in the case of a corporation, on its
president, secretary and treasurer for any benefits which accrue during
the period of the corporation's dereliction. No reason exists to treat
corporate officers of a construction or transportation firm differently
from corporate officers of a coal mine operator. In either case, the
employer is legally required (by the statute or Secretary's order) to
secure its liability, and has failed to satisfy that requirement.
Section 423(d)(1) simply provides the Department with one tool to
enforce the liable employer's obligation.
The same commenter also states that proposed Sec. 725.606 addresses
a nonexistent problem because the construction industry already
complies with its obligations. The commenter's observation does not
provide a legal basis for excluding construction companies from the
employer community subject to security requirements imposed by statute.
The original notice of proposed rulemaking, 62 FR 3367-3368 (Jan. 22,
1997), describes the Department's objectives for improving and
clarifying the operation of the security provisions. The possible
absence of a significant problem does not relieve the Department of its
responsibility to identify all parties' obligations under the Black
Lung Benefits Act and to set forth more efficient procedures to enforce
them.
(c) One comment supports requiring the posting of security for the
payment of benefits by coal mine construction and transportation
employers.
Subpart J
20 CFR 725.701
(a) A number of commenters objected to the Department's initial
proposal governing the compensability of medical benefits, because it
included a rebuttable presumption that if a miner receives treatment
for a pulmonary disorder, that disorder is caused or aggravated by the
miner's pneumoconiosis. 62 FR 3423 (Jan. 22, 1997). Several commenters
argued that this presumption would impose significantly greater costs
on responsible operators and result in the payment of medical bills
related to smoking. Others argued that the Department had no authority
to promulgate such a presumption and that the presumption was medically
unsound. The Department disagrees and believes that the proposed
presumption is both appropriate and necessary.
In its initial notice of proposed rulemaking, the Department cited
the Fourth Circuit's decision in Doris Coal Co. v. Director, OWCP, 938
F.2d 492 (4th Cir. 1991), in support of its proposal to codify a
rebuttable presumption that treatment that a miner receives for a
pulmonary condition, as described in Sec. 725.701, represents treatment
for the miner's pneumoconiosis and therefore is compensable. As
proposed, this presumption would be available only to miners who have
established their total disability due to pneumoconiosis arising out of
coal mine employment and are therefore already entitled to monthly cash
benefits. The presumption would also apply only to treatment,
enumerated in the regulation, for a pulmonary disorder. The presumption
could be rebutted by evidence demonstrating that the condition for
which the miner received treatment was unrelated to, and was not
aggravated by, the miner's pneumoconiosis.
Since publication of the Department's initial notice of proposed
rulemaking, the Sixth Circuit has also issued a decision addressing the
compensability of medical expenses incurred as a result of treatment
for totally disabling pneumoconiosis. In Glen Coal Co. v. Seals, 147
F.3d 502 (6th Cir. 1998), a majority of the panel (Judges Dowd and
Boggs) held that the administrative law judge and the Benefits Review
Board
[[Page 55004]]
had erred in applying the Doris Coal presumption to a miner whose coal
mine employment took place within the jurisdiction of the Sixth
Circuit. Although Judge Dowd's majority opinion would have invalidated
the presumption on a number of grounds, including its inconsistency
with Congressional intent underlying the BLBA, see 147 F.3d at 513,
Judge Boggs's concurrence (necessary for the majority's holding) did
not extend so far. Instead, Judge Boggs specifically noted that he
would ``agree with the dissent (and disagree with Judge Dowd) that it
would not necessarily contravene Greenwich Collieries for the Secretary
to adopt a regulation shifting the burden of production in the manner
of Doris Coal.'' Id. at 517. Finally, Judge Moore's concurring and
dissenting opinion would have upheld the Doris Coal presumption on
deference grounds.
Recently, the Fourth Circuit clarified the presumption it created
in Doris Coal. In Gulf & Western Indus. v. Ling, __F.3d__, 1999 WL
149851 (4th Cir. Mar. 19, 1999), the court held that the Doris Coal
presumption does not shift the burden of persuasion to the employer to
prove that the miner's respiratory or pulmonary treatment was not
related to black lung disease. Rather, the burden of proving that the
medical expense is covered by the black lung benefits award remains
always on the miner. The Doris Coal presumption simply eases the
miner's initial burden by allowing the miner to present a bill for
treatment of his respiratory or pulmonary disorder or related symptoms.
If the employer then
produces credible evidence that the treatment is rendered for a
pulmonary disorder apart from those previously associated with the
miner's disability, or is beyond that necessary to effectively treat
a covered disorder, or is not for a pulmonary disorder at all, the
mere existence of a medical bill, without more, shall not carry the
day. The burden of persuading the factfinder of the validity of the
claim remains at all times with the miner.
1999 WL 149851 at *5.
The Department believes that black lung benefit claims adjudication
should vary as little as possible from circuit to circuit, and
consequently has proposed a regulatory presumption that would apply
nationwide. Like any agency, however, the Department may only
promulgate a regulatory presumption when there exists a rational
connection between the proven facts and the presumed facts. Chemical
Manufacturers Association v. Department of Transportation, 105 F.3d
702, 705 (D.C. Cir. 1997); NLRB v. Baptist Hosp., Inc., 442 U.S. 773,
787 (1979). The proposed Sec. 725.701 presumption would arise only
after the miner establishes that he suffers from totally disabling
pneumoconiosis arising out of coal mine employment, a fact that must be
considered conclusively proven absent a successful request for
modification from the responsible operator or fund. In addition, before
invocation of the presumption, the miner must show that he received
medical treatment within the scope of Sec. 725.701 for a respiratory or
pulmonary condition. Thus, prior to invocation of this presumption, the
miner has demonstrated by means of credible medical evidence that he
suffers from a compensable total disability. In addition, the miner has
established that he received treatment covered by the proposed
regulation for a pulmonary disorder. The Department's proposal would
presume only one fact: that the pulmonary treatment for which the miner
seeks payment was for his already-established totally disabling
pneumoconiosis.
The Department's proposed definition of pneumoconiosis demonstrates
the rational connection between the facts the miner must prove and the
resulting presumption. Pursuant to proposed Sec. 718.201, which has
been endorsed by the National Institute of Occupational Safety and
Health, a miner who has established the existence of pneumoconiosis has
necessarily established that he suffers from a ``chronic pulmonary
disease or respiratory or pulmonary impairment significantly related
to, or substantially aggravated by, dust exposure in coal mine
employment.'' Sec. 718.201(b); see also 20 CFR 718.201 (1998).
Consequently, any treatment for the miner's compromised respiratory or
pulmonary condition suggests, even if it does not conclusively
demonstrate, that the miner's previous dust exposure has contributed to
the need for that treatment. In addition, the miner's proof that he is
totally disabled due to pneumoconiosis establishes that his
pneumoconiosis is a substantially contributing cause of his total
disability. Sec. 718.204(c). This fact also suggests that the treatment
of the miner's respiratory or pulmonary system is made necessary by his
pneumoconiosis. Finally, the Department notes that it receives 12,000
to 15,000 medical bills per week, most of which are for relatively
small amounts, $25.00 to $75.00. The Department must process these
claims in a cost effective and prompt manner. The Department believes
that it would be unreasonable to require miners to prove that each
treatment expense is for pneumoconiosis when: (1) Each miner has
already proven that he is totally disabled by pneumoconiosis arising
out of coal mine employment; (2) the bills are for treatment of a
pulmonary disorder, and (3) the bills are generally for relatively
small amounts. In such circumstances, the Department believes it
appropriate to presume that the miner's treatment for a pulmonary
disorder is treatment for pneumoconiosis. The Department also believes
it appropriate to require coal mine operators to produce credible
evidence that the disorder being treated is neither related to nor
aggravated by pneumoconiosis in order to escape liability. The
Department does not agree, however, that the presumption will require
operators to pay for medical treatment attributable to smoking alone.
Operators remain free to rebut the presumption in such cases with
appropriate medical evidence.
(b) The Department proposes to delete the reference in subsection
(b) to ``ancillary pulmonary conditions.'' In light of the confusion
reflected in Judge Dowd's majority opinion in Seals, and given the
broad statutory and regulatory definition of the term
``pneumoconiosis,'' the Department does not believe that this language
is necessary. The proposed revision is not intended to narrow the scope
of medical benefits available under the Black Lung Benefits Act. Under
subsections (b) and (c), a broad range of medical services and supplies
will be considered necessary for the treatment of a miner's
pneumoconiosis. The proposed presumption in subsection (e) will further
ensure that miners who have been determined to be totally disabled due
to pneumoconiosis are compensated for any medical service or supply
necessary for the treatment of a pulmonary condition unless the
responsible operator or fund can prove that the medical service or
supply was not for a covered pulmonary disorder as defined in
Sec. 718.201. In order to further clarify the Department's intent, the
Department proposes to revise the language in subsection (e) by
replacing the word ``treatment'' with the phrase, ``medical service or
supply.'' This change is intended to ensure that the subsection (e)
presumption covers any medical supply or service that may be considered
necessary under subsections (b) and (c).
The Department also proposes to amend the language in subsection
(f) to clarify its intent. Evidence which is inconsistent with the
established facts underlying the miner's entitlement to benefits cannot
be used to show that the treatment is not compensable. An
[[Page 55005]]
attempt to use such evidence in this context would amount to
impermissible relitigation of facts which have been finally determined.
In determining whether the treatment is compensable, a treating
physician's opinion may be entitled to controlling weight pursuant to
Sec. 718.104(d). In addition, a finding that a particular medical
service or supply is not compensable shall not otherwise affect the
miner's entitlement to benefits.
20 CFR Part 726--Black Lung Benefits; Requirements for Coal Mine
Operators' Insurance
Subpart A--General
20 CFR 726.8
(a) In the initial notice of proposed rulemaking, the Department
proposed new definitions of ``employ'' and ``employment'' which apply
to both Part 725 and 726. See 62 FR 3410 (Sec. 725.493(a)(1)), 3426
(Sec. 726.8(d)) (Jan. 22, 1997). The definitions were identical. For
the reasons set forth in the response to comments concerning
Sec. 725.493(a)(1), the Department has determined that more specific
language defining ``employment'' is appropriate to clarify its purpose.
The same change is incorporated into Sec. 726.(8)(d) for the same
reason.
(b) One comment contends that section 726.8(d) is ``illegally''
retroactive in operation and creates unfunded liabilities for insurance
carriers by expanding coverage. For the reasons set forth in the
response to comments concerning Sec. 725.2, the Department does not
believe that the retroactive application of regulatory changes is
prohibited, or the instrument for the creation of additional liability.
The same commenter also states that the proposed regulatory
definitions intrude on insurance functions reserved for the states.
Because the commenter does not cite any legal authority or identify
which state functions the proposed regulation affects, the Department
is unable to determine the commenter's precise concerns. Moreover, the
Seventh Circuit has held that the Black Lung Benefits Act
``specifically relates to the business of insurance and therefore does
not implicate the McCarran-Ferguson Act,'' 15 U.S.C. 1012, which
confers primacy on state law for the regulation of the insurance
industry unless a conflicting federal statute specifically provides
otherwise. Lovilia Coal Co. v. Williams, 143 F.3d 317, 325 (7th Cir.
1998). The commenter's objection therefore provides no basis for the
further revision of this regulation.
(c) Two comments state that the proposed definitions are overbroad
and make impossible the identification of which employees are covered
by an insurance policy. The Department disagrees. The definition of
``employee'' must be read in context with the definition of ``miner''
in Sec. 725.202. Only coal miners (and their survivors) are entitled to
benefits under the Black Lung Benefits Act, and only those individuals
are of concern to an insurance carrier writing a policy under the Act.
In determining whether a particular employee is covered by the
insurance policy, the insurer must determine whether the individual is
a ``miner'' as defined by the Act and Sec. 725.202. The insurer
therefore must conduct a thorough investigation of the employer's
business, the nature of the contacts with the coal mining industry, and
the type of work each employee performs. This information will provide
the basis for calculating the premium necessary for full coverage of
the employer's potential liabilities. The burden of covering the
responsible operator's liability and obtaining an appropriate premium
rests on the insurer. See Lovilia Coal Co. v. Williams, 143 F.3d 317,
323 (7th Cir. 1998) (holding that insurance carrier must cover
operator's entire liability under the Act and ``bears the burden of
collecting proper premiums for all covered miners.''). Finally, the
Department notes that the goal of broad insurance coverage for
employees implements Congress' express intent to hold the coal mine
operator community liable for individual claims to the maximum extent
possible. See S. Rep. No. 95-209, reprinted in Comm. On Education and
Labor, House of Representatives, 96th Cong., ``Black Lung Benefits
Reform Act and Black Lung Benefits Revenue Act of 1977'' (Comm. Print)
at 612. Section 726.8(d) reflects the Department's policy to vigorously
effectuate that intent. Because an insurance carrier assumes the
responsibility for benefits ascribed to its insured operator, that
responsibility must encompass every employee of the operator who
qualifies as an eligible miner under the Act. Williams, 143 F.3d at
323; see also National Mines Corp. v. Carroll, 64 F.3d 135, 140 (3d
Cir. 1995); Tazco, Inc. v. Director, OWCP, 895 F.2d 949, 951 (4th Cir.
1990).
Subpart C
20 CFR 726.3
Section 726.3 was not among the regulations which the Department
opened for comment in its previous notice of proposed rulemaking. 62 FR
3350 (Jan. 22, 197). In reviewing the current proposal for publication,
the Office of the Federal Register requested that the Department revise
paragraph (b) in order to clarify how cases will be treated when the
regulation in Part 726 appear to conflict with regulations incorporated
from 725. This revision is not intended to make any substantive change
in the regulation. In addition, the Department is removing references
to Parts 715 and 720 from paragraph (a). Those parts were repealed in
1978, 43 FR 36772 (Aug. 18, 1978), and the regulations they contained
should no longer be considered applicable to Part 726.
Subpart C
20 CFR 726.203
Section 726.203 was not among the regulations which the Department
opened for comment in its previous notice of proposed rulemaking. 62 FR
3341 (Jan. 22, 1997). At the Washington, D.C. hearing, however, the
Department heard testimony indicating that the insurance industry has
used a different version of the endorsement contained in subsection (a)
since 1984. An insurance industry representative testified that the
change was ``acknowledged by the department as language acceptable for
securing workers compensation under the federal Act.'' Transcript,
Hearing on Proposed Changes to the Black Lung Program Regulations, July
22, 1997, p. 127 (testimony of Robert Dorsey). In its written comments,
the insurance industry noted that after notification of changes in the
insurance policy language, ``the Department agreed that the new
endorsements were acceptable.'' The version provided by the insurance
industry states as follows:
This endorsement applies only to work in a state shown in the
Schedule and subject to the Federal Coal Mine Health and Safety Act of
1969 (30 USC Sections 931-942). Part One (Workers Compensation
Insurance) applies to that work as though that state were shown in item
3.A. of the Information Page.
The definition of workers compensation law includes the Federal
Coal Mine Health and Safety Act of 1969 (30 U.S.C. Sections 931-942)
and any amendment to that law that is in effect during the policy
period.
Part One (Workers Compensation Insurance), section A.2., How This
Insurance Applies, is replaced by the following:
Bodily injury by disease must be caused or aggravated by the
conditions of your employment. The employee's last day of last
exposure to the conditions causing or aggravating such bodily injury
by disease must occur during the policy period or, when the last
exposure occurred prior to July 1, 1973, a claim based on that
disease must be
[[Page 55006]]
first filed against you during the policy period shown in item 2 of
the Information Page.
Schedule
State
Following the hearing, the Department searched its records.
Although those records reflect a meeting with a representative of the
insurance industry in 1984, the Department was unable to find any
document authorizing the use of the different endorsement. If the
insurance industry has such a document in its files, the Department
requests that it send it to James L. DeMarce at the address listed in
this notice. In addition, to allow thorough evaluation of the
endorsement the industry now suggests, the insurance industry should
supply the Department with a copy of the insurance policy to which the
endorsement is attached. Finally, although it is not currently
proposing revision of Sec. 726.203, the Department requests comment on
the possible use of this endorsement. In preparing those comments,
individuals should take note of the Department's requirement in
Sec. 726.205 that endorsements other than those provided by
Sec. 726.203 may be used provided they do not ``materially alter or
attempt[] to alter an operator's liability for the payment of any
benefits under the Act * * *'' 20 CFR 726.205.
Drafting Information, this document was prepared under the
direction and supervision of Bernard Anderson, Assistant Secretary of
Labor for Employment Standards.
The principal authors of this document are Rae Ellen James, Deputy
Associate Solicitor; Richard Seid, Counsel for Administrative
Litigation and Legal Advice; and Michael Denney, Counsel for
Enforcement, Black Lung Benefits Division, Office of the Solicitor,
U.S. Department of Labor. Personnel from the Division of Coal Mine
Workers' Compensation, Office of Workers' Compensation Programs,
Employment Standards Administration, U.S. Department of Labor, assisted
in the preparation of the document.
Executive Order 12866
The Office of Information and Regulatory Affairs of the Office of
Management and Budget has determined that the Department's proposed
rule represents a ``significant regulatory action'' under section
3(f)(4) of Executive Order 12866 and has reviewed the rule.
Unfunded Mandates Reform Act
For purposes of the Unfunded Mandates Reform Act of 1995, as well
as E.O. 12875, this rule does not include any federal mandate that may
result in increased expenditures by State, local and tribal
governments, or increased expenditures by the private sector of more
than $100 million.
Paperwork Reduction Act
The proposed changes would establish no new record keeping
requirements. Moreover, they seek to reduce the volume of medical
examination and consultants' reports which are currently created solely
for the purpose of litigation by limiting the amount of such medical
evidence which will be admissible in black lung proceedings.
Regulatory Flexibility Act, as Amended
The Regulatory Flexibility Act (``RFA'') was enacted by Congress in
1980 ``to encourage administrative agencies to consider the potential
impact of nascent federal regulations on small businesses.'' Associated
Fisheries of Maine, Inc. v. Daley, 127 F.3d 104, 111 (1st Cir. 1997).
Unless the agency is able to certify that the rule will not have ``a
significant economic effect on a substantial number of small
entities,'' 5 U.S.C. 605, each agency that publishes a notice of
proposed rulemaking must prepare an ``initial regulatory flexibility
analysis'' describing the impact of the proposed rule on small
entities. 5 U.S.C. 603(a). That analysis, or a summary of the analysis,
must be published in the Federal Register when the notice of proposed
rulemaking is published, and a copy of the analysis must be sent to the
Chief Counsel for Advocacy of the Small Business Administration.
In its initial notice of proposed rulemaking, the Department
certified that the proposed revisions would not have a significant
effect on a substantial number of small businesses. 62 FR 3371-73 (Jan.
22, 1997). The Department's certification was criticized by both the
coal mining industry and the Small Business Administration's Office of
Advocacy. Industry argued that the Department had grossly
underestimated the effect of the proposed rule. The Office of Advocacy
observed that the Department had not used the size standards
established by the Small Business Administration, and that the
Department did not provide a factual basis for its certification. In
particular, the Office of Advocacy took issue with the Department's
interpretation of the term ``significant economic effect.''
In light of the concerns raised by the commenters, the Department
has determined that an initial regulatory flexibility analysis is
appropriate. The RFA mandates that each analysis contain certain
components: (1) a statement of the reasons for issuing the proposed
rule; (2) a statement of the objectives of, and legal basis for, the
proposed rule; (3) a description and, where feasible, an estimate of
the number of small businesses to which the rule will apply; (4) a
description of projected reporting, recordkeeping, and other compliance
requirements of the proposed rule; and (5) an identification of any
rules that overlap, duplicate, or conflict with the proposed rule. 5
U.S.C. 603(a). Finally, the analysis must contain a description of
significant alternatives to the rule that accomplish the stated
objectives and minimize the significant economic impact on small
businesses, including the establishment of different compliance
requirements or exemptions for small businesses. 5 U.S.C. 603(b). In
determining the effects of a proposed rule, or alternatives to the
proposed rule, ``an agency may provide either a quantifiable or
numerical description of the effects * * * or more general descriptive
statements if quantification is not practicable or reliable.'' 5 U.S.C.
607. Once the analysis has been published in the Federal Register,
either in full or in summary form, the RFA also requires administrative
agencies to assure that small businesses have a full opportunity to
participate in the rulemaking by providing them with additional
notification. 5 U.S.C. 609.
Reasons for, and Objectives of, the Proposed Rule
The Department's proposal is intended to update the regulations
that implement that Black Lung Benefits Act. The Act provides both
monetary and medical benefits to miners who are totally disabled by
pneumoconiosis arising out of coal mine employment, and monthly
monetary benefits to the survivors of miners who die as a result of the
disease. These regulations establish: (1) the procedures used to
process and adjudicate benefit applications (Part 725); (2) the
criteria used to determine whether applicants are eligible for benefits
(Parts 718 and 727); (3) the requirements for coal mine operators who
must secure the payment of benefits (Part 726); and (4) the standards
for approving state workers' compensation programs (Part 722). The
Department has proposed revising these regulations in order to
accomplish several goals:
(1) A substantial number of the proposed rules would simply codify
decisions by the courts of appeals and the Benefits Review Board. In
many cases, these decisions were issued by courts with jurisdiction
over the states
[[Page 55007]]
in which most of the country's coal mining takes place, and thus
already govern the adjudication of a majority of claims. In order to
make sure all interested parties are aware of these decisions, and in
particular to ensure that claimants who are not represented by counsel
are not disadvantaged by being unaware of these decisions, the
Department is proposing to codify these decisions in its implementing
regulations. Codification of court decisions in rules of nationwide
applicability will ensure uniform treatment of the parties. The
Department's proposed revisions also codify changes to statutes other
than the Black Lung Benefits Act which affect the Department's
administration of the Act, including changes to the Social Security Act
governing garnishment, and the statute governing the collection of
debts owed the federal government.
(2) In addition, the Department is proposing these revisions to
make the adjudication of claims a more equitable process, and to ensure
that the affected public perceives the process as fair. For example,
the Department has proposed limiting the amount of documentary medical
evidence parties to a claim may submit in order to encourage the
parties to focus on the quality of the medical evidence they develop
instead of its quantity. The Department has also proposed requiring
that the factfinder recognize certain factors that may make the opinion
of the miner's treating physician worthy of more weight. Similarly, the
proposal would ensure that claimants who receive overpayments are
treated equally regardless of whether the overpayment was made by the
Black Lung Disability Trust Fund or a coal mine operator. Finally, the
Department has proposed revisions to the rules governing attorneys'
fees in an effort to make attorneys more willing to represent black
lung claimants.
(3) Several of the proposed revisions are designed to simplify the
regulatory language and clarify the Department's original intent when
the regulations were first promulgated. These proposals include
ensuring the uniform application of the quality standards to medical
evidence developed in connection with a black lung benefits claim and
refining the definitions of key terms such as ``miner'' and ``one
year.'' The Department has also proposed revisions to the regulations
governing the eligibility of dependents and survivors in order to
clarify the statute and insure implementation of Congressional intent.
(4) The Department has proposed several measures designed to
protect the Black Lung Disability Trust Fund, which pays claimants
benefits when no coal mine operator or insurer may be held liable.
Specifically, the Department proposes to revise the regulations
governing the imposition of civil money penalties on coal mine
operators that fail to secure the payment of benefits as required by
the Act, either by purchasing commercial insurance or by qualifying as
a self-insurer. The Department has also proposed revisions to the
process used to identify the party responsible for the payment of
benefits, including changes to regulations governing the submission of
evidence relevant to operator liability and the substantive criteria
used to determine such liability. Finally, the Department has proposed
revising the process by which uninsured coal mine operators, including
coal mine construction and transportation companies, may be compelled
to post security once they have been found liable for the payment of an
individual claim.
(5) A number of the regulatory proposals are designed to improve
the services the Department provides to parties to black lung benefits
claims. These proposals include revisions that streamline the
adjudication of claims, for example, by defining the parties'
obligation to attend an informal conference. They also include
revisions intended to ensure that beneficiaries receive all of the
benefits to which they are entitled in a timely manner. The Department
has proposed eliminating or replacing outdated regulations, such as
those governing the Department's certification of state workers'
compensation programs.
(6) Finally, the Department is proposing revisions that take into
account changes that have occurred over the past 20 years in the
diagnosis and treatment of pneumoconiosis. For example, the Department
has proposed revising the definition of pneumoconiosis to recognize the
progressive nature of the disease and the possibility that a miner's
coal mine dust exposure may have contributed to the development of
either obstructive or restrictive lung disease. The Department has also
proposed revisions in the standards for administering pulmonary
function tests and in the adjudication of the compensability of medical
expenses.
Legal Basis for the Proposed Rule
The Black Lung Benefits Act grants the Secretary broad authority to
issue regulations. Section 422(a) of the Act provides that ``[i]n
administering this part [Part C of the Act], the Secretary is
authorized to prescribe in the Federal Register such additional
provisions * * * as [s]he deems necessary to provide for the payment of
benefits by such operator to persons entitled thereto as provided in
this part and thereafter those provisions shall be applicable to such
operator.'' 30 U.S.C. 932(a). Section 426(a) of the Act similarly
authorizes the Secretary to ``issue such regulations as [she] deems
appropriate to carry out the provisions of this title.'' 30 U.S.C.
936(a). The Act also authorizes the Secretary to promulgate regulations
on specific subjects, such as criteria for medical tests, 30 U.S.C.
902(f)(1)(D), standards for assigning liability to coal mine operators,
30 U.S.C. 932(h), and regulations governing insurance contracts, 30
U.S.C. 933(b)(3). In addition, the Department, like any other
administrative agency, possesses the inherent authority to promulgate
regulations in order to fill gaps in the legislation that it is
responsible for administering. Chevron v. Natural Resources Defense
Council, 467 U.S. 837, 843-44 (1984); Pauley v. Bethenergy Mines, Inc.,
501 U.S. 680, 696 (1991).
Small Businesses to which the Rule will Apply
The Regulatory Flexibility Act requires an administrative agency to
describe and, where feasible, estimate the number of small entities to
which a proposed rule will apply. 5 U.S.C. 603(b)(5). Small entities
include small businesses, small organizations, and small governmental
jurisdictions. 5 U.S.C. 601(6). The Black Lung Benefits Act, however,
does not seek to regulate small organizations or small governmental
jurisdictions. Accordingly, this analysis is limited to the effect of
the proposed rule on small businesses. By its terms, the Black Lung
Benefits Act imposes obligations on coal mine operators. 30 U.S.C.
932(b) (``each such operator shall be liable for and shall secure the
payment of benefits * * *.''). An operator is defined, for purposes of
the black lung benefits program, as ``any owner, lessee, or other
person who operates, controls, or supervises a coal mine, or any
independent contractor performing services or construction at such
mine.'' Sec. 725.491(a)(1); 30 U.S.C. 802(d).
In assessing the impact of the proposed rule on operators that may
be considered small businesses, the RFA requires an agency to use the
definitions of the term ``small business'' used by the Small Business
Administration unless the agency, after consultation with SBA's Office
of Advocacy and opportunity for public comment, establishes its own
definition. 5 U.S.C. 601(3). SBA's definitions, set forth in 13
[[Page 55008]]
CFR 121.201, are grouped according to Standard Industrial Codes (SICs)
used by the Bureau of the Census. For purposes of identifying the small
businesses to which the Black Lung Benefits Act and its implementing
regulations apply, two categories are applicable: Coal Mining (SIC
Codes 1220, 1221, 1222, 1230, and 1231) and Coal Mining Services (SIC
Codes 1240 and 1241). SBA defines a small business in the coal mining
industry as one with fewer than 500 employees, and a small business in
the coal mining services industry as one with less than $5 million
annually in receipts.
The Department has prepared an extensive economic analysis of the
effect of the proposed rule on small businesses in the coal mining
industry. A copy of that analysis is available on request from James L.
DeMarce, Director, Division of Coal Mine Workers' Compensation, Room C-
3520, Frances Perkins Building, 200 Constitution Ave., N.W.,
Washington, DC 20210. In the analysis, the Department specifically
requests comments on a number of the assumptions underlying its
conclusion. These include the relationship between increases in the
claims approval rate and increases in insurance premiums; the
relationship between increased medical costs and increases in insurance
premiums; and the extent to which promulgation of these revisions will
result in an increase in the number of claims filed.
The Department's analysis, using data maintained by the Mine Safety
and Health Administration, indicates that, in 1995, 2,811 of 2,822
establishments, consisting of mines and preparation plants, employed
less than 500 people (Exhibit C, total of all establishments employing
less than 500 people). Of these establishments, 1,581 were associated
with mining bituminous coal at a surface mine, 1009 mined bituminous
coal underground, and 221 mined anthracite coal. When individual
establishments are aggregated into parent companies, the Department
found that 898 of 933 companies employed less than 500 people, and thus
meet SBA's definition of a small business (Exhibit D).
It is not feasible to estimate precisely the number of independent
contractors engaged in coal-mine related activities that meet SBA's
definition, for example, those involved in coal mine construction and
coal transportation. Data provided the Department by SBA (also
available at http://www.sba.gov/ADVO/) with respect to firms in the
coal mining services industry does not permit the direct identification
of specific firms with less than $5 million annually in receipts. The
data lists firms in categories according to the number of employees
(e.g., 1-4, 5-9), and provides the total estimated annual receipts for
all of the firms in each category. Thus, at best, the data allows only
an estimate of the average annual receipts of each firm within a given
category. In the case of firms engaged in coal mining services, SBA
data suggests that firms with 20 or more employees have average annual
receipts that exceed the SBA cutoff. For example, 9 firms with between
20 and 24 employees had total annual estimated receipts in 1994 of
$48,240,000. Thus, the average annual receipts of each firm in this
category exceeds $5 million. Because 209 of the 275 firms engaged in
coal mining services have fewer than 20 employees, the Department
estimates that no more than 209 coal mining services firms will be
affected by the proposed rule. The Department notes that this estimate
may not include all coal mine construction and coal transportation
companies. Because coal mine construction or coal transportation may
not be the primary source of income for these companies, they may not
appear in the SBA's data under the SIC Code covering coal mining
services. The Department cannot estimate the number of firms that are
excluded from SBA's data.
Projected Reporting, Recordkeeping, and Other Compliance Requirements
of the Proposed Rule
The revisions proposed by the Department to its black lung
regulations will not impose any additional reporting or recordkeeping
requirements on small businesses. The analysis of additional costs that
follows is derived from the Department's extensive economic analysis of
the effect of the proposed rule on small businesses in the coal mining
industry. References are to exhibits that accompany that report. The
costs associated with the proposed rule involve possible increases in
benefit payments, including monetary disability benefits and medical
benefits, and increases in transaction costs incurred in the defense of
claims under the Act. These costs will be imposed on coal mine
operators either directly, in the case of coal mine operators that
self-insure their obligations under the Act, or indirectly, in the case
of coal mine operators that purchase commercial insurance. The latter
group will absorb the increased costs through increases in insurance
premiums. Because self-insurers are required to have a net worth of
more than $10 million, and are able to take advantage of economies of
scale in absorbing these costs, the Department's economic analysis
focused on companies with commercial insurance. Increased costs on
commercially insured operators will be higher than those imposed on
self-insurers (which would have purchased commercial insurance if it
were less expensive) and thus will overstate the costs to the coal
mining industry as a whole.
The Department has concluded that insurance rates, typically
between $.56 (for bituminous coal operators in Pennsylvania) and $5.38
(for anthracite coal operators in Pennsylvania) per $100 of payroll
(Exhibit F), may be expected to rise by a total of 41.7 percent in the
first two years and 39.3 percent in the long term. The Department has
calculated the percentage increase in price that operators in a
representative sample of states will need to charge in order to cover
increased cost of the Department's proposed revisions. That cost ranges
from .35 % (for West Virginia operators with 50 to 100 employees) to
3.3 % (for anthracite operators) (Exhibit O). The Department concludes
that these price increases will fall most heavily on coal mine
operators with less than 20 employees. The increases will clearly be
significant, and although a number of small mine operators will be able
to recoup their costs, less well-positioned bituminous operators and
contract mine operators will face the greatest difficulty in doing so.
As a result, some operators in those groups may be forced to suspend
operations.
In addition, the proposed rule requires several specific actions on
the part of coal mine operators. Operators that do not purchase
commercial insurance to secure their liability for black lung benefits,
including both operators that are authorized to self-insure and
operators that are not required to obtain insurance, will be required
to respond more promptly to notice from the Department that a claim has
been filed by one of their former employees. See Sec. 725.407.
Specifically, they will have 90 days from receipt of notice to supply
the Department with information relevant to their employment of the
miner. Operators that have not secured their liability will also be
required to post security in the event that they are held liable for
the payment of benefits on an individual claim. See Sec. 725.606.
Operators that have been authorized to self-insure their liability
under the Act will be required to maintain security for their claims
even after they leave the coal mining business. See Sec. 726.114.
Finally, the Department's revisions are intended to enhance its ability
to enforce civil
[[Page 55009]]
money penalties against operators that fail to comply with the Act's
security requirements, and thus may impose additional costs on
operators that are not currently in compliance with the Act's
requirements. See Part 726, Subpart D. The remaining revisions do not
impose on operators any additional compliance requirements beyond those
in the Department's current regulations.
Rules that Overlap, Duplicate, or Conflict with the Proposed Rule
There are no other rules of which the Department is aware that
overlap, duplicate, or conflict with the Department's proposed rule.
Significant Alternatives to the Rule
The Regulatory Flexibility Act requires the Department to consider
alternatives to the rule that would minimize any significant economic
impact on small businesses without sacrificing the stated objectives of
the rule. 5 U.S.C. 603(b). The Black Lung Benefits Act places severe
constraints on the Department's ability to target its proposed rule in
order to minimize its impact on small business. The use of SBA's size
standard would require the Department to seek ways of protecting more
than 96 percent of the companies in the coal mining industry (898 of
the 933 companies). Even using a 20-employee size standard, and thus
focusing attention on the operators most likely to face significant
additional costs, the Department's ability to reduce the economic
impact of the proposal is limited.
Most of the revisions proposed by the Department affect the
criteria used to determine a claimant's entitlement to benefits. The
Black Lung Benefits Act requires that benefits be paid to each miner
who is totally disabled as a result of pneumoconiosis arising out of
coal mine employment, 30 U.S.C. 922(a)(1), and each dependent survivor
of a miner who died due to pneumoconiosis or, if the claim was filed
before January 1, 1982, was totally disabled at the time of death by
the disease. 30 U.S.C. 922(a)(2), (3), (5). As an initial matter, then,
the Act simply does not permit the Department to adjust its entitlement
regulations based on the size of the miner's former employer. In
effect, the Department cannot deny a claim because the miner was
employed by a small business.
The Department has proposed revisions to the regulations governing
the identity of the party liable for the payment of benefits. Like the
current regulations, the Department's proposal would impose liability
on the coal mine operator that most recently employed the miner for a
period of not less than one year, provided that the operator meets
other specified criteria. Among these criteria is the operator's
financial ability to assume responsibility for the payment of benefits.
See Sec. 725.494(e). Because coal mine operators are required to secure
their liability under the Act by purchasing commercial insurance or by
self-insuring, however, this condition typically affects only two
classes of operators: those that have failed to comply with the Act's
security requirement, and those construction and transportation
employers that are not subject to the security requirement. Such a
company may avoid liability for a particular claim by demonstrating
that it is financially incapable of assuming the payment of monthly and
retroactive benefits.
Although the use of a financial capability standard might be
considered a benefit to small businesses, using either SBA's definition
or the 20-employee cutoff, the Department does not believe that it can
provide any other similar benefit. In theory, of course, the Department
could specifically limit liability under the Act in cases involving
operators below a certain size. To do so, however, the Department would
have to increase the obligations borne by larger coal mine operators
(who may be the miner's second or third most recent employer) or the
Black Lung Disability Trust Fund. Such a result, however, would violate
Congress's clear intent: ``It is further the intention of this section,
with respect to claims related to which the miner worked on or after
January 1, 1970, to ensure that individual coal operators rather than
the trust fund bear the liability for claims arising out of such
operator's mines, to the maximum extent feasible.'' S. Rep. 209, 95th
Cong., 1st Sess. 9 (1977), reprinted in House Comm. On Educ. And Labor,
96th Cong., Black Lung Benefits Reform Act and Black Lung Benefits
Revenue Act of 1977, 612 (Comm. Print 1979).
One area in which the Department may appropriately impose lesser
costs on small businesses is the assessment of civil money penalties
for failure to secure the payment of benefits. The Act merely provides
that operators that fail to secure their liability are subject to a
civil money penalty of up to $1,000 a day. The current regulations
authorize the imposition of the ``maximum penalty allowed'' in the
absence of mitigating circumstances. 20 CFR 725.495(d). By contrast,
the Department's proposed regulations recognize that smaller companies
may cause less harm by failing to secure the payment of benefits. The
Department's proposal therefore establishes different base penalty
amounts for operators who fail to insure, depending on the number of
their employees. Thus, where the Act permits the Department to exercise
flexibility with regard to small business, the Department has done so.
The Department invites comment from interested parties,
particularly coal mine operators that are considered small businesses,
as to other possible means of reducing the financial impact of the
proposed rules on the small business community. Commenters should bear
in mind that the fundamental purpose of the Black Lung Benefits Act is
to provide benefits to disabled miners and their survivors, and that
all applicants and beneficiaries must be treated fairly.
List of Subjects in 20 CFR Parts 718, 722, 725, 726, 727.
Black lung benefits, Lung disease, Miners, Mines, Workers'
compensation, X-rays.
Signed at Washington, D.C., this 15th day of September, 1999.
Bernard Anderson,
Assistant Secretary for Employment Standards.
For the reasons set forth in the preamble, 20 CFR Chapter VI is
proposed to be amended as follows:
1. The authority citation for part 718 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., 902(f), 925, 932, 934, 936, 945; 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. Part 718 is proposed to be amended by removing subpart E,
revising subparts A through D, revising Appendices A and C, and
revising the text of Appendix B (the tables, B1 through B6, in Appendix
B remain unchanged):
PART 718--STANDARDS FOR DETERMINING COAL MINERS' TOTAL DISABILITY
OR DEATH DUE TO PNEUMOCONIOSIS
Subpart A--General
Sec.
718.1 Statutory provisions.
718.2 Applicability of this part.
718.3 Scope and intent of this part.
718.4 Definitions and use of terms.
Subpart B--Criteria for the Development of Medical Evidence
718.101 General.
718.102 Chest roentgenograms (X-rays).
718.103 Pulmonary function tests.
718.104 Report of physical examinations.
718.105 Arterial blood-gas studies.
718.106 Autopsy; biopsy.
[[Page 55010]]
718.107 Other medical evidence.
Subpart C--Determining Entitlement to Benefits
718.201 Definition of pneumoconiosis.
718.202 Determining the existence of pneumoconiosis.
718.203 Establishing relationship of pneumoconiosis to coal mine
employment.
718.204 Total disability and disability causation defined; criteria
for determining total disability and total disability due to
pneumoconiosis.
718.205 Death due to pneumoconiosis.
718.206 Effect of findings by persons or agencies.
Subpart D--Presumptions Applicable to Eligibility Determinations
718.301 Establishing length of employment as a miner.
718.302 Relationship of pneumoconiosis to coal mine employment.
718.303 Death from a respirable disease.
718.304 Irrebuttable presumption of total disability or death due
to pneumoconiosis.
718.305 Presumption of pneumoconiosis.
718.306 Presumption of entitlement applicable to certain death
claims.
Appendix A to Part 718--Standards for Administration and
Interpretation of Chest Roentgenograms (X-rays)
Appendix B to Part 718--Standards for Administration and
Interpretation of Pulmonary Function Tests. Tables B1, B2, B3, B4,
B5, B6
Appendix C to Part 718--Blood Gas Tables
Subpart A--General
Sec. 718.1 Statutory provisions.
(a) Under title IV of the Federal Coal Mine Health and Safety Act
of 1969, as amended by the Black Lung Benefits Act of 1972, the Federal
Mine Safety and Health Amendments Act of 1977, the Black Lung Benefits
Reform Act of 1977, the Black Lung Benefits Revenue Act of 1977, the
Black Lung Benefits Amendments of 1981, and the Black Lung Benefits
Revenue Act of 1981, benefits are provided to miners who are totally
disabled due to pneumoconiosis and to certain survivors of a miner who
died due to or while totally or partially disabled by pneumoconiosis.
However, unless the miner was found entitled to benefits as a result of
a claim filed prior to January 1, 1982, benefits are payable on
survivors' claims filed on or after January 1, 1982, only when the
miner's death was due to pneumoconiosis, except where the survivor's
entitlement is established pursuant to Sec. 718.306 on a claim filed
prior to June 30, 1982. Before the enactment of the Black Lung Benefits
Reform Act of 1977, the authority for establishing standards of
eligibility for miners and their survivors was placed with the
Secretary of Health, Education, and Welfare. These standards were set
forth by the Secretary of Health, Education, and Welfare in subpart D
of part 410 of this title, and adopted by the Secretary of Labor for
application to all claims filed with the Secretary of Labor (see 20 CFR
718.2, contained in the 20 CFR, part 500 to end, edition revised as of
April 1, 1979). Amendments made to section 402(f) of the Act by the
Black Lung Benefits Reform Act of 1977 authorize the Secretary of Labor
to establish criteria for determining total or partial disability or
death due to pneumoconiosis to be applied in the processing and
adjudication of claims filed under part C of title IV of the Act.
Section 402(f) of the Act further authorizes the Secretary of Labor, in
consultation with the National Institute for Occupational Safety and
Health, to establish criteria for all appropriate medical tests
administered in connection with a claim for benefits. Section 413(b) of
the Act authorizes the Secretary of Labor to establish criteria for the
techniques to be used to take chest roentgenograms (X-rays) in
connection with a claim for benefits under the Act.
(b) The Black Lung Benefits Reform Act of 1977 provided that with
respect to a claim filed prior to April 1, 1980, or reviewed under
section 435 of the Act, the standards to be applied in the adjudication
of such claim shall not be more restrictive than the criteria
applicable to a claim filed on June 30, 1973, with the Social Security
Administration, whether or not the final disposition of the claim
occurs after March 31, 1980. All such claims shall be reviewed under
the criteria set forth in part 727 of this title (see 20 CFR 725.4(d)).
Sec. 718.2 Applicability of this part.
This part is applicable to the adjudication of all claims filed
after March 31, 1980, and considered by the Secretary of Labor under
section 422 of the Act and part 725 of this subchapter. If a claim
subject to the provisions of section 435 of the Act and subpart C of
part 727 of this subchapter (see 20 CFR 725.4(d)) cannot be approved
under that subpart, such claim may be approved, if appropriate, under
the provisions contained in this part. The provisions of this part
shall, to the extent appropriate, be construed together in the
adjudication of all claims.
Sec. 718.3 Scope and intent of this part.
(a) This part sets forth the standards to be applied in determining
whether a coal miner is or was totally, or in the case of a claim
subject to Sec. 718.306 partially, disabled due to pneumoconiosis or
died due to pneumoconiosis. It also specifies the procedures and
requirements to be followed in conducting medical examinations and in
administering various tests relevant to such determinations.
(b) This part is designed to interpret the presumptions contained
in section 411(c) of the Act, evidentiary standards and criteria
contained in section 413(b) of the Act and definitional requirements
and standards contained in section 402(f) of the Act within a coherent
framework for the adjudication of claims. It is intended that these
enumerated provisions of the Act be construed as provided in this part.
Sec. 718.4 Definitions and use of terms.
Except as is otherwise provided by this part, the definitions and
usages of terms contained in Sec. 725.101 of subpart A of part 725 of
this title shall be applicable to this part.
Subpart B--Criteria for the Development of Medical Evidence
Sec. 718.101 General.
(a) The Office of Workers' Compensation Programs (hereinafter OWCP
or the Office) shall develop the medical evidence necessary for a
determination with respect to each claimant's entitlement to benefits.
Each miner who files a claim for benefits under the Act shall be
provided an opportunity to substantiate his or her claim by means of a
complete pulmonary evaluation including, but not limited to, a chest
roentgenogram (X-ray), physical examination, pulmonary function tests
and a blood-gas study.
(b) The standards for the administration of clinical tests and
examinations contained in this subpart shall apply to all evidence
developed by any party after [the effective date of the final rule] in
connection with a claim governed by this part (see Secs. 725.406(b),
725.414(a), 725.456(d)). These standards shall also apply to claims
governed by part 727 (see 20 CFR 725.4(d)), but only for clinical tests
or examinations conducted after [the effective date of the final rule].
Any clinical test or examination subject to these standards shall be in
substantial compliance with the applicable standard in order to
constitute evidence of the fact for which it is proffered. Unless
otherwise provided, any evidence which is not in substantial compliance
with the applicable standard is insufficient to establish the fact for
which it is proffered.
[[Page 55011]]
Sec. 718.102 Chest roentgenograms (X-rays).
(a) A chest roentgenogram (X-ray) shall be of suitable quality for
proper classification of pneumoconiosis and shall conform to the
standards for administration and interpretation of chest X-rays as
described in Appendix A to this part.
(b) A chest X-ray to establish the existence of pneumoconiosis
shall be classified as Category 1, 2, 3, A, B, or C, according to the
International Labour Organization Union Internationale Contra Cancer/
Cincinnati (1971) International Classification of Radiographs of the
Pneumoconioses (ILO-U/C 1971), or subsequent revisions thereof. A chest
X-ray classified as Category Z under the ILO Classification (1958) or
Short Form (1968) shall be reclassified as Category O or Category 1 as
appropriate, and only the latter accepted as evidence of
pneumoconiosis. A chest X-ray classified under any of the foregoing
classifications as Category O, including sub-categories 0--, 0/0, or 0/
1 under the UICC/Cincinnati (1968) Classification or the ILO-U/C 1971
Classification does not constitute evidence of pneumoconiosis.
(c) A description and interpretation of the findings in terms of
the classifications described in paragraph (b) of this section shall be
submitted by the examining physician along with the film. The report
shall specify the name and qualifications of the person who took the
film and the name and qualifications of the physician interpreting the
film. If the physician interpreting the film is a Board-certified or
Board-eligible radiologist or a certified ``B'' reader (see
Sec. 718.202), he or she shall so indicate. The report shall further
specify that the film was interpreted in compliance with this
paragraph.
(d) The original film on which the X-ray report is based shall be
supplied to the Office, unless prohibited by law, in which event the
report shall be considered as evidence only if the original film is
otherwise available to the Office and other parties. Where the chest X-
ray of a deceased miner has been lost, destroyed or is otherwise
unavailable, a report of a chest X-ray submitted by any party shall be
considered in connection with the claim.
(e) No chest X-ray shall constitute evidence of the presence or
absence of pneumoconiosis unless it is conducted and reported in
accordance with the requirements of this section and Appendix A. In the
absence of evidence to the contrary, compliance with the requirements
of Appendix A shall be presumed. In the case of a deceased miner where
the only available X-ray does not substantially comply with this
subpart, such X-ray shall be considered and shall be accorded
appropriate weight in light of all relevant evidence if it is of
sufficient quality for determining the presence or absence of
pneumoconiosis and such X-ray was interpreted by a Board-certified or
Board-eligible radiologist or a certified ``B'' reader (see
Sec. 718.202).
Sec. 718.103 Pulmonary function tests.
(a) Any report of pulmonary function tests submitted in connection
with a claim for benefits shall record the results of flow versus
volume (flow-volume loop). The instrument shall simultaneously provide
records of volume versus time (spirometric tracing). The report shall
provide the results of the forced expiratory volume in one second
(FEV1) and the forced vital capacity (FVC). The report shall also
provide the FEV1/FVC ratio, expressed as a percentage. If the maximum
voluntary ventilation (MVV) is reported, the results of such test shall
be obtained independently rather than calculated from the results of
the FEV1.
(b) All pulmonary function test results submitted in connection
with a claim for benefits shall be accompanied by three tracings of the
flow versus volume and the electronically derived volume versus time
tracings. If the MVV is reported, two tracings of the MVV whose values
are within 10% of each other shall be sufficient. Pulmonary function
test results submitted in connection with a claim for benefits shall
also include a statement signed by the physician or technician
conducting the test setting forth the following:
(1) Date and time of test;
(2) Name, DOL claim number, age, height, and weight of claimant at
the time of the test;
(3) Name of technician;
(4) Name and signature of physician supervising the test;
(5) Claimant's ability to understand the instructions, ability to
follow directions and degree of cooperation in performing the tests. If
the claimant is unable to complete the test, the person executing the
report shall set forth the reasons for such failure;
(6) Paper speed of the instrument used;
(7) Name of the instrument used;
(8) Whether a bronchodilator was administered. If a bronchodilator
is administered, the physician's report must detail values obtained
both before and after administration of the bronchodilator and explain
the significance of the results obtained; and
(9) That the requirements of paragraphs (b) and (c) of this section
have been complied with.
(c) No results of a pulmonary function study shall constitute
evidence of the presence or absence of a respiratory or pulmonary
impairment unless it is conducted and reported in accordance with the
requirements of this section and Appendix B to this part. In the
absence of evidence to the contrary, compliance with the requirements
of Appendix B shall be presumed. In the case of a deceased miner,
special consideration shall be given to noncomplying tests if, in the
opinion of the adjudication officer, the only available tests
demonstrate technically valid results obtained with good cooperation of
the miner.
Sec. 718.104 Report of physical examinations.
(a) A report of any physical examination conducted in connection
with a claim shall be prepared on a medical report form supplied by the
Office or in a manner containing substantially the same information.
Any such report shall include the following information and test
results:
(1) The miner's medical and employment history;
(2) All manifestations of chronic respiratory disease;
(3) Any pertinent findings not specifically listed on the form;
(4) If heart disease secondary to lung disease is found, all
symptoms and significant findings;
(5) The results of a chest X-ray conducted and interpreted as
required by Sec. 718.102; and
(6) The results of a pulmonary function test conducted and reported
as required by Sec. 718.103. If the miner is physically unable to
perform a pulmonary function test or if the test is medically
contraindicated, in the absence of evidence establishing total
disability pursuant to Sec. 718.304, the report must be based on other
medically acceptable clinical and laboratory diagnostic techniques,
such as a blood gas study.
(b) In addition to the requirements of paragraph (a) of this
section, a report of physical examination may be based on any other
procedures such as electrocardiogram, blood-gas studies conducted and
reported as required by Sec. 718.105, and other blood analyses which,
in the physician's opinion, aid in his or her evaluation of the miner.
(c) In the case of a deceased miner, a report prepared by a
physician who is unavailable, which fails to meet the criteria of
paragraph (a), may be given appropriate consideration and weight by the
adjudicator in light of all relevant
[[Page 55012]]
evidence provided no report which does comply with this section is
available.
(d) Treating physician. The adjudication officer may give the
medical opinion of the miner's treating physician controlling weight in
weighing the medical evidence of record relevant to whether the miner
suffers, or suffered, from pneumoconiosis, whether the pneumoconiosis
arose out of coal mine employment, and whether the miner is, or was,
totally disabled by pneumoconiosis or died due to pneumoconiosis. The
adjudication officer shall take into consideration the following
factors in weighing the opinion of a treating physician:
(1) Nature of relationship. The opinion of a physician who has
treated the miner for respiratory or pulmonary conditions is entitled
to more weight than a physician who has treated the miner for non-
respiratory conditions;
(2) Duration of relationship. The length of the treatment
relationship demonstrates whether the physician has observed the miner
long enough to obtain a superior understanding of his or her condition;
(3) Frequency of treatment. The frequency of physician-patient
visits demonstrates whether the physician has observed the miner often
enough to obtain a superior understanding of his or her condition; and
(4) Extent of treatment. The types of testing and examinations
conducted during the treatment relationship demonstrate whether the
physician has obtained superior and relevant information concerning the
miner's condition.
(5) In the absence of contrary probative evidence, the adjudication
officer shall accept the statement of a physician with regard to the
factors listed in paragraphs (d)(1) through (4) of this section.
Whether controlling weight is given to the opinion of a miner's
treating physician shall also be based on the credibility of the
physician's opinion in light of its reasoning and documentation, other
relevant evidence and the record as a whole.
Sec. 718.105 Arterial blood-gas studies.
(a) Blood-gas studies are performed to detect an impairment in the
process of alveolar gas exchange. This defect will manifest itself
primarily as a fall in arterial oxygen tension either at rest or during
exercise. No blood-gas study shall be performed if medically
contraindicated.
(b) A blood-gas study shall initially be administered at rest and
in a sitting position. If the results of the blood-gas test at rest do
not satisfy the requirements of Appendix C to this part, an exercise
blood-gas test shall be offered to the miner unless medically
contraindicated. If an exercise blood-gas test is administered, blood
shall be drawn during exercise.
(c) Any report of a blood-gas study submitted in connection with a
claim shall specify:
(1) Date and time of test;
(2) Altitude and barometric pressure at which the test was
conducted;
(3) Name and DOL claim number of the claimant;
(4) Name of technician;
(5) Name and signature of physician supervising the study;
(6) The recorded values for PCO2, PO2, and PH, which have been
collected simultaneously (specify values at rest and, if performed,
during exercise);
(7) Duration and type of exercise;
(8) Pulse rate at the time the blood sample was drawn;
(9) Time between drawing of sample and analysis of sample; and
(10) Whether equipment was calibrated before and after each test.
(d) If one or more blood-gas studies producing results which meet
the appropriate table in Appendix C is administered during a
hospitalization which ends in the miner's death, then any such study
must be accompanied by a physician's report establishing that the test
results were produced by a chronic respiratory or pulmonary condition.
Failure to produce such a report will prevent reliance on the blood-gas
study as evidence that the miner was totally disabled at death.
Sec. 718.106 Autopsy; biopsy.
(a) A report of an autopsy or biopsy submitted in connection with a
claim shall include a detailed gross macroscopic and microscopic
description of the lungs or visualized portion of a lung. If a surgical
procedure has been performed to obtain a portion of a lung, the
evidence shall include a copy of the surgical note and the pathology
report of the gross and microscopic examination of the surgical
specimen. If an autopsy has been performed, a complete copy of the
autopsy report shall be submitted to the Office.
(b) In the case of a miner who died prior to March 31, 1980, an
autopsy or biopsy report shall be considered even when the report does
not substantially comply with the requirements of this section. A
noncomplying report concerning a miner who died prior to March 31,
1980, shall be accorded the appropriate weight in light of all relevant
evidence.
(c) A negative biopsy is not conclusive evidence that the miner
does not have pneumoconiosis. However, where positive findings are
obtained on biopsy, the results will constitute evidence of the
presence of pneumoconiosis.
Sec. 718.107 Other medical evidence.
(a) The results of any medically acceptable test or procedure
reported by a physician and not addressed in this subpart, which tends
to demonstrate the presence or absence of pneumoconiosis, the sequelae
of pneumoconiosis or a respiratory or pulmonary impairment, may be
submitted in connection with a claim and shall be given appropriate
consideration.
(b) The party submitting the test or procedure pursuant to this
section bears the burden to demonstrate that the test or procedure is
medically acceptable and relevant to establishing or refuting a
claimant's entitlement to benefits.
Subpart C--Determining Entitlement to Benefits
Sec. 718.201 Definition of pneumoconiosis.
(a) For the purpose of the Act, ``pneumoconiosis'' means a chronic
dust disease of the lung and its sequelae, including respiratory and
pulmonary impairments, arising out of coal mine employment. This
definition includes both medical, or ``clinical'', pneumoconiosis and
statutory, or ``legal'', pneumoconiosis.
(1) Clinical pneumoconiosis. ``Clinical pneumoconiosis'' consists
of those diseases, recognized by the medical community as
pneumoconioses, i.e., the conditions characterized by permanent
deposition of substantial amounts of particulate matter in the lungs
and the fibrotic reaction of the lung tissue to that deposition caused
by dust exposure in coal mine employment. This definition includes, but
is not limited to, coal workers' pneumoconiosis, anthracosilicosis,
anthracosis, anthrosilicosis, massive pulmonary fibrosis, silicosis or
silicotuberculosis, arising out of coal mine employment.
(2) Legal pneumoconiosis. ``Legal pneumoconiosis'' includes any
chronic lung disease or impairment and its sequelae arising out of coal
mine employment. This definition includes, but is not limited to, any
chronic restrictive or obstructive pulmonary disease arising out of
coal mine employment.
(b) For purposes of this section, a disease ``arising out of coal
mine employment'' includes any chronic pulmonary disease or respiratory
or pulmonary impairment significantly related to, or substantially
aggravated
[[Page 55013]]
by, dust exposure in coal mine employment.
(c) For purposes of this definition, ``pneumoconiosis'' is
recognized as a latent and progressive disease which may first become
detectable only after the cessation of coal mine dust exposure.
Sec. 718.202 Determining the existence of pneumoconiosis.
(a) A finding of the existence of pneumoconiosis may be made as
follows:
(1) A chest X-ray conducted and classified in accordance with
Sec. 718.102 may form the basis for a finding of the existence of
pneumoconiosis. Except as otherwise provided in this section, where two
or more X-ray reports are in conflict, in evaluating such X-ray reports
consideration shall be given to the radiological qualifications of the
physicians interpreting such X-rays.
(i) In all claims filed before January 1, 1982, where there is
other evidence of pulmonary or respiratory impairment, a Board-
certified or Board-eligible radiologist's interpretation of a chest X-
ray shall be accepted by the Office if the X-ray is in compliance with
the requirements of Sec. 718.102 and if such X-ray has been taken by a
radiologist or qualified radiologic technologist or technician and
there is no evidence that the claim has been fraudulently represented.
However, these limitations shall not apply to any claim filed on or
after January 1, 1982.
(ii) The following definitions shall apply when making a finding in
accordance with this paragraph.
(A) The term other evidence means medical tests such as blood-gas
studies, pulmonary function studies or physical examinations or medical
histories which establish the presence of a chronic pulmonary,
respiratory or cardio-pulmonary condition, and in the case of a
deceased miner, in the absence of medical evidence to the contrary,
affidavits of persons with knowledge of the miner's physical condition.
(B) Pulmonary or respiratory impairment means inability of the
human respiratory apparatus to perform in a normal manner one or more
of the three components of respiration, namely, ventilation, perfusion
and diffusion.
(C) Board-certified means certification in radiology or diagnostic
roentgenology by the American Board of Radiology, Inc. or the American
Osteopathic Association.
(D) Board-eligible means the successful completion of a formal
accredited residency program in radiology or diagnostic roentgenology.
(E) Certified `B' reader or `B' reader means a physician who has
demonstrated proficiency in evaluating chest roentgenograms for
roentgenographic quality and in the use of the ILO-U/C classification
for interpreting chest roentgenograms for pneumoconiosis and other
diseases by taking and passing a specially designed proficiency
examination given on behalf of or by the Appalachian Laboratory for
Occupational Safety and Health. See 42 CFR 37.51(b)(2).
(F) Qualified radiologic technologist or technician means an
individual who is either certified as a registered technologist by the
American Registry of Radiologic Technologists or licensed as a
radiologic technologist by a state licensing board.
(2) A biopsy or autopsy conducted and reported in compliance with
Sec. 718.106 may be the basis for a finding of the existence of
pneumoconiosis. A finding in an autopsy or biopsy of anthracotic
pigmentation, however, shall not be sufficient, by itself, to establish
the existence of pneumoconiosis. A report of autopsy shall be accepted
unless there is evidence that the report is not accurate or that the
claim has been fraudulently represented.
(3) If the presumptions described in Secs. 718.304, 718.305 or
Sec. 718.306 are applicable, it shall be presumed that the miner is or
was suffering from pneumoconiosis.
(4) A determination of the existence of pneumoconiosis may also be
made if a physician, exercising sound medical judgment, notwithstanding
a negative X-ray, finds that the miner suffers or suffered from
pneumoconiosis as defined in Sec. 718.201. Any such finding shall be
based on objective medical evidence such as blood-gas studies,
electrocardiograms, pulmonary function studies, physical performance
tests, physical examination, and medical and work histories. Such a
finding shall be supported by a reasoned medical opinion.
(b) No claim for benefits shall be denied solely on the basis of a
negative chest X-ray.
(c) A determination of the existence of pneumoconiosis shall not be
made solely on the basis of a living miner's statements or testimony.
Nor shall such a determination be made upon a claim involving a
deceased miner filed on or after January 1, 1982, solely based upon the
affidavit(s) (or equivalent sworn testimony) of the claimant and/or his
or her dependents who would be eligible for augmentation of the
claimant's benefits if the claim were approved.
Sec. 718.203 Establishing relationship of pneumoconiosis to coal mine
employment.
(a) In order for a claimant to be found eligible for benefits under
the Act, it must be determined that the miner's pneumoconiosis arose at
least in part out of coal mine employment. The provisions in this
section set forth the criteria to be applied in making such a
determination.
(b) If a miner who is suffering or suffered from pneumoconiosis was
employed for ten years or more in one or more coal mines, there shall
be a rebuttable presumption that the pneumoconiosis arose out of such
employment.
(c) If a miner who is suffering or suffered from pneumoconiosis was
employed less than ten years in the nation's coal mines, it shall be
determined that such pneumoconiosis arose out of that employment only
if competent evidence establishes such a relationship.
Sec. 718.204 Total disability and disability causation defined;
criteria for determining total disability and total disability due to
pneumoconiosis.
(a) General. Benefits are provided under the Act for or on behalf
of miners who are totally disabled due to pneumoconiosis, or who were
totally disabled due to pneumoconiosis at the time of death. For
purposes of this section, any nonpulmonary or nonrespiratory condition
or disease, which causes an independent disability unrelated to the
miner's pulmonary or respiratory disability, shall not be considered in
determining whether a miner is totally disabled due to pneumoconiosis.
If, however, a nonpulmonary or nonrespiratory condition or disease
causes a chronic respiratory or pulmonary impairment, that condition or
disease shall be considered in determining whether the miner is or was
totally disabled due to pneumoconiosis.
(b)(1) Total disability defined. A miner shall be considered
totally disabled if the irrebuttable presumption described in
Sec. 718.304 applies. If that presumption does not apply, a miner shall
be considered totally disabled if the miner has a pulmonary or
respiratory impairment which, standing alone, prevents or prevented the
miner:
(i) From performing his or her usual coal mine work; and
(ii) From engaging in gainful employment in the immediate area of
his or her residence requiring the skills or abilities comparable to
those of any employment in a mine or mines in which he or she
previously engaged
[[Page 55014]]
with some regularity over a substantial period of time.
(2) Medical criteria. In the absence of contrary probative
evidence, evidence which meets the standards of either paragraphs
(b)(2)(i), (ii), (iii), or (iv) of this section shall establish a
miner's total disability:
(i) Pulmonary function tests showing values equal to or less than
those listed in Table B1 (Males) or Table B2 (Females) in Appendix B to
this part for an individual of the miner's age, sex, and height for the
FEV1 test; if, in addition, such tests also reveal the values specified
in either paragraph (b)(2)(i)(A) or (B) or (C) of this section:
(A) Values equal to or less than those listed in Table B3 (Males)
or Table B4 (Females) in Appendix B of this part, for an individual of
the miner's age, sex, and height for the FVC test, or
(B) Values equal to or less than those listed in Table B5 (Males)
or Table B6 (Females) in Appendix B to this part, for an individual of
the miner's age, sex, and height for the MVV test, or
(C) A percentage of 55 or less when the results of the FEV1 test
are divided by the results of the FVC test (FEV1/FVC equal to or less
than 55%), or
(ii) Arterial blood-gas tests show the values listed in Appendix C
to this part, or
(iii) The miner has pneumoconiosis and has been shown by the
medical evidence to be suffering from cor pulmonale with right-sided
congestive heart failure, or
(iv) Where total disability cannot be shown under paragraphs
(b)(2)(i), (ii), or (iii) of this section, or where pulmonary function
tests and/or blood gas studies are medically contraindicated, total
disability may nevertheless be found if a physician exercising reasoned
medical judgment, based on medically acceptable clinical and laboratory
diagnostic techniques, concludes that a miner's respiratory or
pulmonary condition prevents or prevented the miner from engaging in
employment as described in paragraph (b)(1) of this section.
(c)(1) Total disability due to pneumoconiosis defined. A miner
shall be considered totally disabled due to pneumoconiosis if
pneumoconiosis, as defined in Sec. 718.201, is a substantially
contributing cause of the miner's totally disabling respiratory or
pulmonary impairment. Pneumoconiosis is a ``substantially contributing
cause'' of the miner's disability if it:
(i) Has an adverse effect on the miner's respiratory or pulmonary
condition; or
(ii) Worsens a totally disabling respiratory or pulmonary
impairment which is caused by a disease or exposure unrelated to coal
mine employment.
(2) Except as provided in Sec. 718.305 and paragraph (b)(2)(iii) of
this section, proof that the miner suffers or suffered from a totally
disabling respiratory or pulmonary impairment as defined in paragraphs
(b)(2)(i), (b)(2)(ii), (b)(2)(iv) and (d) of this section shall not, by
itself, be sufficient to establish that the miner's impairment is or
was due to pneumoconiosis. Except as provided in paragraph (d), the
cause or causes of a miner's total disability shall be established by
means of a physician's documented and reasoned medical report.
(d) Lay evidence. In establishing total disability, lay evidence
may be used in the following cases:
(1) In a case involving a deceased miner in which the claim was
filed prior to January 1, 1982, affidavits (or equivalent sworn
testimony) from persons knowledgeable of the miner's physical condition
shall be sufficient to establish total (or under Sec. 718.306 partial)
disability due to pneumoconiosis if no medical or other relevant
evidence exists which addresses the miner's pulmonary or respiratory
condition.
(2) In a case involving a survivor's claim filed on or after
January 1, 1982, but prior to June 30, 1982, which is subject to
Sec. 718.306, affidavits (or equivalent sworn testimony) from persons
knowledgeable of the miner's physical condition shall be sufficient to
establish total or partial disability due to pneumoconiosis if no
medical or other relevant evidence exists which addresses the miner's
pulmonary or respiratory condition; however, such a determination shall
not be based solely upon the affidavits or testimony of the claimant
and/or his or her dependents who would be eligible for augmentation of
the claimant's benefits if the claim were approved.
(3) In a case involving a deceased miner whose claim was filed on
or after January 1, 1982, affidavits (or equivalent sworn testimony)
from persons knowledgeable of the miner's physical condition shall be
sufficient to establish total disability due to pneumoconiosis if no
medical or other relevant evidence exists which addresses the miner's
pulmonary or respiratory condition; however, such a determination shall
not be based solely upon the affidavits or testimony of any person who
would be eligible for benefits (including augmented benefits) if the
claim were approved.
(4) Statements made before death by a deceased miner about his or
her physical condition are relevant and shall be considered in making a
determination as to whether the miner was totally disabled at the time
of death.
(5) In the case of a living miner's claim, a finding of total
disability due to pneumoconiosis shall not be made solely on the
miner's statements or testimony.
(e) In determining total disability to perform usual coal mine
work, the following shall apply in evaluating the miner's employment
activities:
(1) In the case of a deceased miner, employment in a mine at the
time of death shall not be conclusive evidence that the miner was not
totally disabled. To disprove total disability, it must be shown that
at the time the miner died, there were no changed circumstances of
employment indicative of his or her reduced ability to perform his or
her usual coal mine work.
(2) In the case of a living miner, proof of current employment in a
coal mine shall not be conclusive evidence that the miner is not
totally disabled unless it can be shown that there are no changed
circumstances of employment indicative of his or her reduced ability to
perform his or her usual coal mine work.
(3) Changed circumstances of employment indicative of a miner's
reduced ability to perform his or her usual coal mine work may include
but are not limited to:
(i) The miner's reduced ability to perform his or her customary
duties without help; or
(ii) The miner's reduced ability to perform his or her customary
duties at his or her usual levels of rapidity, continuity or
efficiency; or
(iii) The miner's transfer by request or assignment to less
vigorous duties or to duties in a less dusty part of the mine.
Sec. 718.205 Death due to pneumoconiosis.
(a) Benefits are provided to eligible survivors of a miner whose
death was due to pneumoconiosis. In order to receive benefits, the
claimant must prove that:
(1) The miner had pneumoconiosis (see Sec. 718.202);
(2) The miner's pneumoconiosis arose out of coal mine employment
(see Sec. 718.203); and
(3) The miner's death was due to pneumoconiosis as provided by this
section.
(b) For the purpose of adjudicating survivors' claims filed prior
to January 1, 1982, death will be considered due to pneumoconiosis if
any of the following criteria is met:
(1) Where competent medical evidence established that the miner's
death was due to pneumoconiosis, or
[[Page 55015]]
(2) Where death was due to multiple causes including pneumoconiosis
and it is not medically feasible to distinguish which disease caused
death or the extent to which pneumoconiosis contributed to the cause of
death, or
(3) Where the presumption set forth at Sec. 718.304 is applicable,
or
(4) Where either of the presumptions set forth at Sec. 718.303 or
Sec. 718.305 is applicable and has not been rebutted.
(5) Where the cause of death is significantly related to or
aggravated by pneumoconiosis.
(c) For the purpose of adjudicating survivors' claims filed on or
after January 1, 1982, death will be considered to be due to
pneumoconiosis if any of the following criteria is met:
(1) Where competent medical evidence establishes that
pneumoconiosis was the cause of the miner's death, or
(2) Where pneumoconiosis was a substantially contributing cause or
factor leading to the miner's death or where the death was caused by
complications of pneumoconiosis, or
(3) Where the presumption set forth at Sec. 718.304 is applicable.
(4) However, survivors are not eligible for benefits where the
miner's death was caused by a traumatic injury or the principal cause
of death was a medical condition not related to pneumoconiosis, unless
the evidence establishes that pneumoconiosis was a substantially
contributing cause of death.
(5) Pneumoconiosis is a ``substantially contributing cause'' of a
miner's death if it hastens the miner's death.
(d) To minimize the hardships to potentially entitled survivors due
to the disruption of benefits upon the miner's death, survivors' claims
filed on or after January 1, 1982, shall be adjudicated on an expedited
basis in accordance with the following procedures. The initial burden
is upon the claimant, with the assistance of the district director, to
develop evidence which meets the requirements of paragraph (c) of this
section. Where the initial medical evidence appears to establish that
death was due to pneumoconiosis, the survivor will receive benefits
unless the weight of the evidence as subsequently developed by the
Department or the responsible operator establishes that the miner's
death was not due to pneumoconiosis as defined in paragraph (c).
However, no such benefits shall be found payable before the party
responsible for the payment of such benefits shall have had a
reasonable opportunity for the development of rebuttal evidence. See
Sec. 725.414 concerning the operator's opportunity to develop evidence
prior to an initial determination.
Sec. 718.206 Effect of findings by persons or agencies.
Decisions, statements, reports, opinions, or the like, of agencies,
organizations, physicians or other individuals, about the existence,
cause, and extent of a miner's disability, or the cause of a miner's
death, are admissible. If properly submitted, such evidence shall be
considered and given the weight to which it is entitled as evidence
under all the facts before the adjudication officer in the claim.
Subpart D--Presumptions Applicable to Eligibility Determinations
Sec. 718.301 Establishing length of employment as a miner.
The presumptions set forth in Secs. 718.302, 718.303, 718.305 and
718.306 apply only if a miner worked in one or more coal mines for the
number of years required to invoke the presumption. The length of the
miner's coal mine work history must be computed as provided by 20 CFR
725.101(a)(32).
Sec. 718.302 Relationship of pneumoconiosis to coal mine employment.
If a miner who is suffering or suffered from pneumoconiosis was
employed for ten years or more in one or more coal mines, there shall
be a rebuttable presumption that the pneumoconiosis arose out of such
employment. (See Sec. 718.203.)
Sec. 718.303 Death from a respirable disease.
(a)(1) If a deceased miner was employed for ten or more years in
one or more coal mines and died from a respirable disease, there shall
be a rebuttable presumption that his or her death was due to
pneumoconiosis.
(2) Under this presumption, death shall be found due to a
respirable disease in any case in which the evidence establishes that
death was due to multiple causes, including a respirable disease, and
it is not medically feasible to distinguish which disease caused death
or the extent to which the respirable disease contributed to the cause
of death.
(b) The presumption of paragraph (a) of this section may be
rebutted by a showing that the deceased miner did not have
pneumoconiosis, that his or her death was not due to pneumoconiosis or
that pneumoconiosis did not contribute to his or her death.
(c) This section is not applicable to any claim filed on or after
January 1, 1982.
Sec. 718.304 Irrebuttable presumption of total disability or death due
to pneumoconiosis.
There is an irrebuttable presumption that a miner is totally
disabled due to pneumoconiosis, that a miner's death was due to
pneumoconiosis or that a miner was totally disabled due to
pneumoconiosis at the time of death, if such miner is suffering or
suffered from a chronic dust disease of the lung which:
(a) When diagnosed by chest X-ray (see Sec. 718.202 concerning the
standards for X-rays and the effect of interpretations of X-rays by
physicians) yields one or more large opacities (greater than 1
centimeter in diameter) and would be classified in Category A, B, or C
in:
(1) The ILO-U/C International Classification of Radiographs of the
Pneumoconioses, 1971, or subsequent revisions thereto; or
(2) The International Classification of the Radiographs of the
Pneumoconioses of the International Labour Office, Extended
Classification (1968) (which may be referred to as the ``ILO
Classification (1968)''); or
(3) The Classification of the Pneumoconioses of the Union
Internationale Contra Cancer/Cincinnati (1968) (which may be referred
to as the ``UICC/Cincinnati (1968) Classification''); or
(b) When diagnosed by biopsy or autopsy, yields massive lesions in
the lung; or
(c) When diagnosed by means other than those specified in
paragraphs (a) and (b) of this section, would be a condition which
could reasonably be expected to yield the results described in
paragraph (a) or (b) of this section had diagnosis been made as therein
described: Provided, however, That any diagnosis made under this
paragraph shall accord with acceptable medical procedures.
Sec. 718.305 Presumption of pneumoconiosis.
(a) If a miner was employed for fifteen years or more in one or
more underground coal mines, and if there is a chest X-ray submitted in
connection with such miner's or his or her survivor's claim and it is
interpreted as negative with respect to the requirements of
Sec. 718.304, and if other evidence demonstrates the existence of a
totally disabling respiratory or pulmonary impairment, then there shall
be a rebuttable presumption that such miner is totally disabled due to
pneumoconiosis, that such miner's death was due to pneumoconiosis, or
that at the time of death such miner was totally disabled by
pneumoconiosis. In
[[Page 55016]]
the case of a living miner's claim, a spouse's affidavit or testimony
may not be used by itself to establish the applicability of the
presumption. The Secretary shall not apply all or a portion of the
requirement of this paragraph that the miner work in an underground
mine where it is determined that conditions of the miner's employment
in a coal mine were substantially similar to conditions in an
underground mine. The presumption may be rebutted only by establishing
that the miner does not, or did not, have pneumoconiosis, or that his
or her respiratory or pulmonary impairment did not arise out of, or in
connection with, employment in a coal mine.
(b) In the case of a deceased miner, where there is no medical or
other relevant evidence, affidavits of persons having knowledge of the
miner's condition shall be considered to be sufficient to establish the
existence of a totally disabling respiratory or pulmonary impairment
for purposes of this section.
(c) The determination of the existence of a totally disabling
respiratory or pulmonary impairment, for purposes of applying the
presumption described in this section, shall be made in accordance with
Sec. 718.204.
(d) Where the cause of death or total disability did not arise in
whole or in part out of dust exposure in the miner's coal mine
employment or the evidence establishes that the miner does not or did
not have pneumoconiosis, the presumption will be considered rebutted.
However, in no case shall the presumption be considered rebutted on the
basis of evidence demonstrating the existence of a totally disabling
obstructive respiratory or pulmonary disease of unknown origin.
(e) This section is not applicable to any claim filed on or after
January 1, 1982.
Sec. 718.306 Presumption of entitlement applicable to certain death
claims.
(a) In the case of a miner who died on or before March 1, 1978, who
was employed for 25 or more years in one or more coal mines prior to
June 30, 1971, the eligible survivors of such miner whose claims have
been filed prior to June 30, 1982, shall be entitled to the payment of
benefits, unless it is established that at the time of death such miner
was not partially or totally disabled due to pneumoconiosis. Eligible
survivors shall, upon request, furnish such evidence as is available
with respect to the health of the miner at the time of death, and the
nature and duration of the miner's coal mine employment.
(b) For the purpose of this section, a miner will be considered to
have been ``partially disabled'' if he or she had reduced ability to
engage in work as defined in Sec. 718.204(b).
(c) In order to rebut this presumption the evidence must
demonstrate that the miner's ability to perform work as defined in
Sec. 718.204(b) was not reduced at the time of his or her death or that
the miner did not have pneumoconiosis.
(d) None of the following items, by itself, shall be sufficient to
rebut the presumption:
(1) Evidence that a deceased miner was employed in a coal mine at
the time of death;
(2) Evidence pertaining to a deceased miner's level of earnings
prior to death;
(3) A chest X-ray interpreted as negative for the existence of
pneumoconiosis;
(4) A death certificate which makes no mention of pneumoconiosis.
Appendix A to Part 718--Standards for Administration and
Interpretation of Chest Roentgenograms (X-rays)
The following standards are established in accordance with
sections 402(f)(1)(D) and 413(b) of the Act. They were developed in
consultation with the National Institute for Occupational Safety and
Health. These standards are promulgated for the guidance of
physicians and medical technicians to insure that uniform procedures
are used in administering and interpreting X-rays and that the best
available medical evidence will be submitted in connection with a
claim for black lung benefits. If it is established that one or more
standards have not been met, the claims adjudicator may consider
such fact in determining the evidentiary weight to be assigned to
the physician's report of an X-ray.
(1) Every chest roentgenogram shall be a single postero-anterior
projection at full inspiration on a 14 by 17 inch film. Additional
chest films or views shall be obtained if they are necessary for
clarification and classification. The film and cassette shall be
capable of being positioned both vertically and horizontally so that
the chest roentgenogram will include both apices and costophrenic
angles. If a miner is too large to permit the above requirements,
then a projection with minimum loss of costophrenic angle shall be
made.
(2) Miners shall be disrobed from the waist up at the time the
roentgenogram is given. The facility shall provide a dressing area
and, for those miners who wish to use one, the facility shall
provide a clean gown. Facilities shall be heated to a comfortable
temperature.
(3) Roentgenograms shall be made only with a diagnostic X-ray
machine having a rotating anode tube with a maximum of a 2 mm source
(focal spot).
(4) Except as provided in paragraph (5), roentgenograms shall be
made with units having generators which comply with the following:
(a) the generators of existing roentgenographic units acquired by
the examining facility prior to July 27, 1973, shall have a minimum
rating of 200 mA at 100 kVp; (b) generators of units acquired
subsequent to that date shall have a minimum rating of 300 mA at 125
kVp.
Note: A generator with a rating of 150 kVp is recommended.
(5) Roentgenograms made with battery-powered mobile or portable
equipment shall be made with units having a minimum rating of 100 mA
at 110 kVp at 500 Hz, or 200 mA at 110 kVp at 60 Hz.
(6) Capacitor discharge, and field emission units may be used.
(7) Roentgenograms shall be given only with equipment having a
beam-limiting device which does not cause large unexposed
boundaries. The use of such a device shall be discernible from an
examination of the roentgenogram.
(8) To insure high quality chest roentgenograms:
(i) The maximum exposure time shall not exceed 1/20 of a second
except that with single phase units with a rating less than 300 mA
at 125 kVp and subjects with chest over 28 cm postero-anterior, the
exposure may be increased to not more than 1/10 of a second;
(ii) The source or focal spot to film distance shall be at least
6 feet;
(iii) Only medium-speed film and medium-speed intensifying
screens shall be used;
(iv) Film-screen contact shall be maintained and verified at 6-
month or shorter intervals;
(v) Intensifying screens shall be inspected at least once a
month and cleaned when necessary by the method recommended by the
manufacturer;
(vi) All intensifying screens in a cassette shall be of the same
type and made by the same manufacturer;
(vii) When using over 90 kV, a suitable grid or other means of
reducing scattered radiation shall be used;
(viii) The geometry of the radiographic system shall insure that
the central axis (ray) of the primary beam is perpendicular to the
plane of the film surface and impinges on the center of the film.
(9) Radiographic processing:
(i) Either automatic or manual film processing is acceptable. A
constant time-temperature technique shall be meticulously employed
for manual processing.
(ii) If mineral or other impurities in the processing water
introduce difficulty in obtaining a high-quality roentgenogram, a
suitable filter or purification system shall be used.
(10) Before the miner is advised that the examination is
concluded, the roentgenogram shall be processed and inspected and
accepted for quality by the physician, or if the physician is not
available, acceptance may be made by the radiologic technologist. In
a case of a substandard roentgenogram, another shall be made
immediately.
(11) An electric power supply shall be used which complies with
the voltage, current, and regulation specified by the manufacturer
of the machine.
(12) A densitometric test object may be required on each
roentgenogram for an objective evaluation of film quality at the
discretion of the Department of Labor.
(13) Each roentgenogram made under this Appendix shall be
permanently and legibly
[[Page 55017]]
marked with the name and address of the facility at which it is
made, the miner's DOL claim number, the date of the roentgenogram,
and left and right side of film. No other identifying markings shall
be recorded on the roentgenogram.
Appendix B to Part 718--Standards for Administration and
Interpretation of Pulmonary Function Tests--Tables B1, B2, B3, B4,
B5, B6
The following standards are established in accordance with
section 402(f)(1)(D) of the Act. They were developed in consultation
with the National Institute for Occupational Safety and Health
(NIOSH). These standards are promulgated for the guidance of
physicians and medical technicians to insure that uniform procedures
are used in administering and interpreting ventilatory function
tests and that the best available medical evidence will be submitted
in support of a claim for black lung benefits. If it is established
that one or more standards have not been met, the claims adjudicator
may consider such fact in determining the evidentiary weight to be
given to the results of the ventilatory function tests.
(1) Instruments to be used for the administration of pulmonary
function tests shall be approved by NIOSH and shall conform to the
following criteria:
(i) The instrument shall be accurate within +/-50 ml or within
+/-3 percent of reading, whichever is greater.
(ii) The instrument shall be capable of measuring vital capacity
from 0 to 7 liters BTPS.
(iii) The instrument shall have a low inertia and offer low
resistance to airflow such that the resistance to airflow at 12
liters per second must be less than 1.5 cm H2O/liter/sec.
(iv) The instrument or user of the instrument must have a means
of correcting volumes to body temperature saturated with water vapor
(BTPS) under conditions of varying ambient spirometer temperatures
and barometric pressures.
(v) The instrument used shall provide a tracing of flow versus
volume (flow-volume loop) which displays the entire maximum
inspiration and the entire maximum forced expiration. The instrument
shall, in addition, provide tracings of the volume versus time
tracing (spirogram) derived electronically from the flow-volume
loop. Tracings are necessary to determine whether maximum
inspiratory and expiratory efforts have been obtained during the FVC
maneuver. If maximum voluntary ventilation is measured, the tracing
shall record the individual breaths volumes versus time.
(vi) The instrument shall be capable of accumulating volume for
a minimum of 10 seconds after the onset of exhalation.
(vii) The instrument must be capable of being calibrated in the
field with respect to the FEV1. The volume calibration shall be
accomplished with a 3 L calibrating syringe and should agree to
within 1 percent of a 3 L calibrating volume. The linearity of the
instrument must be documented by a record of volume calibrations at
three different flow rates of approximately 3 L/6 sec, 3 L/3 sec,
and 3 L/sec.
(viii) For measuring maximum voluntary ventilation (MVV) the
instrument shall have a response which is flat within +/-10 percent
up to 4 Hz at flow rates up to 12 liters per second over the volume
range.
(ix) The spirogram shall be recorded at a speed of at least 20
mm/sec and a volume excursion of at least 10mm/L. Calculation of the
FEV1 from the flow-volume loop is not acceptable. Original tracings
shall be submitted.
(2) The administration of pulmonary function tests shall conform
to the following criteria:
(i) Tests shall not be performed during or soon after an acute
respiratory illness.
(ii) For the FEV1 and FVC, use of a nose clip is required. The
procedures shall be explained in simple terms to the patient who
shall be instructed to loosen any tight clothing and stand in front
of the apparatus. The subject may sit, or stand, but care should be
taken on repeat testing that the same position be used. Particular
attention shall be given to insure that the chin is slightly
elevated with the neck slightly extended. The subject shall be
instructed to expire completely, momentarily hold his breath, place
the mouthpiece in his mouth and close the mouth firmly about the
mouthpiece to ensure no air leak. The subject will then make a
maximum inspiration from the instrument and when maximum inspiration
has been attained, without interruption, blow as hard, fast and
completely as possible for at least 7 seconds or until a plateau has
been attained in the volume-time curve with no detectable change in
the expired volume during the last 2 seconds of maximal expiratory
effort. A minimum of three flow-volume loops and derived spirometric
tracings shall be carried out. The patient shall be observed
throughout the study for compliance with instructions. Inspiration
and expiration shall be checked visually for reproducibility. The
effort shall be judged unacceptable when the patient:
(A) Has not reached full inspiration preceding the forced
expiration; or
(B) Has not used maximal effort during the entire forced
expiration; or
(C) Has not continued the expiration for at least 7 sec. or
until an obvious plateau for at least 2 sec. in the volume-time
curve has occurred; or
(D) Has coughed or closed his glottis; or
(E) Has an obstructed mouthpiece or a leak around the mouthpiece
(obstruction due to tongue being placed in front of mouthpiece,
false teeth falling in front of mouthpiece, etc.); or
(F) Has an unsatisfactory start of expiration, one characterized
by excessive hesitation (or false starts). Peak flow should be
attained at the start of expiration and the volume-time tracing
(spirogram) should have a smooth contour revealing gradually
decreasing flow throughout expiration; or
(G) Has an excessive variability between the three acceptable
curves. The variation between the two largest FEV1's of the three
acceptable tracings should not exceed 5 percent of the largest FEV1
or 100 ml, whichever is greater.
(iii) For the MVV, the subject shall be instructed before
beginning the test that he or she will be asked to breathe as deeply
and as rapidly as possible for approximately 15 seconds. The test
shall be performed with the subject in the standing position, if
possible. Care shall be taken on repeat testing that the same
position be used. The subject shall breathe normally into the
mouthpiece of the apparatus for 10 to 15 seconds to become
accustomed to the system. The subject shall then be instructed to
breathe as deeply and as rapidly as possible, and shall be
continually encouraged during the remainder of the maneuver. Subject
shall continue the maneuver for 15 seconds. At least 5 minutes of
rest shall be allowed between maneuvers. At least three MVV's shall
be carried out. (But see Sec. 718.103(b).) During the maneuvers the
patient shall be observed for compliance with instructions. The
effort shall be judged unacceptable when the patient:
(A) Has not maintained consistent effort for at least 12 to 15
seconds; or
(B) Has coughed or closed his glottis; or
(C) Has an obstructed mouthpiece or a leak around the mouthpiece
(obstruction due to tongue being placed in front of mouthpiece,
false teeth falling in front of mouthpiece, etc.); or
(D) Has an excessive variability between the three acceptable
curves. The variation between the two largest MVV's of the three
satisfactory tracings shall not exceed 10 percent.
(iv) A calibration check shall be performed on the instrument
each day before use, using a volume source of at least three liters,
accurate to within +/-1 percent of full scale. The volume
calibration shall be performed in accordance with the method
described in paragraph (1)(vii) of this Appendix. Accuracy of the
time measurement used in determining the FEV1 shall be checked using
the manufacturer's stated procedure and shall be within +/-3 percent
of actual. The procedure described in the Appendix shall be
performed as well as any other procedures suggested by the
manufacturer of the spirometer being used.
(v)(A) The first step in evaluating a spirogram for the FVC and
FEV1 shall be to determine whether or not the patient has performed
the test properly or as described in paragraph (2)(ii) of this
Appendix. The largest recorded FVC and FEV1, corrected to BTPS,
shall be used in the analysis.
(B) Only MVV maneuvers which demonstrate consistent effort for
at least 12 seconds shall be considered acceptable. The largest
accumulated volume for a 12 second period corrected to BTPS and
multiplied by five or the largest accumulated volume for a 15 second
period corrected to BTPS and multiplied by four is to be reported as
the MVV.
* * * * *
Appendix C to Part 718--Blood-Gas Tables
The following tables set forth the values to be applied in
determining whether total disability may be established in
accordance with Secs. 718.204(b)(2)(ii) and 718.305(a) and (c). The
values contained in the tables are indicative of impairment only.
They do not establish a degree of disability except as provided in
Secs. 718.204(b)(2)(ii) and 718.305
[[Page 55018]]
(a) and (c), nor do they establish standards for determining normal
alveolar gas exchange values for any particular individual. Tests
shall not be performed during or soon after an acute respiratory or
cardiac illness.
A miner who meets the following medical specifications shall be
found to be totally disabled, in the absence of rebutting evidence,
if the values specified in one of the following tables are met:
(1) For arterial blood-gas studies performed at test sites up to
2,999 feet above sea level:
------------------------------------------------------------------------
Arterial pO2
equal to or
Arterial pCO2 (mm Hg) less than (mm
Hg)
------------------------------------------------------------------------
25 or below............................................. 75
26...................................................... 74
27...................................................... 73
28...................................................... 72
29...................................................... 71
30...................................................... 70
31...................................................... 69
32...................................................... 68
33...................................................... 67
34...................................................... 66
35...................................................... 65
36...................................................... 64
37...................................................... 63
38...................................................... 62
39...................................................... 61
40-49................................................... 60
Above 50................................................ \1\
------------------------------------------------------------------------
\1\ Any value.
(2) For arterial blood-gas studies performed at test sites 3,000
to 5,999 feet above sea level:
------------------------------------------------------------------------
Arterial pO2
equal to or
Arterial pCO2 (mm Hg) less than (mm
Hg)
------------------------------------------------------------------------
25 or below............................................. 70
26...................................................... 69
27...................................................... 68
28...................................................... 67
29...................................................... 66
30...................................................... 65
31...................................................... 64
32...................................................... 63
33...................................................... 62
34...................................................... 61
35...................................................... 60
36...................................................... 59
37...................................................... 58
38...................................................... 57
39...................................................... 56
40-49................................................... 55
Above 50................................................ \2\
------------------------------------------------------------------------
\2\ Any value.
(3) For arterial blood-gas studies performed at test sites 6,000
feet or more above sea level:
------------------------------------------------------------------------
Arterial pO2
equal to or
Arterial pCO2 (mm Hg) less than (mm
Hg)
------------------------------------------------------------------------
25 or below............................................. 65
26...................................................... 64
27...................................................... 63
28...................................................... 62
29...................................................... 61
30...................................................... 60
31...................................................... 59
32...................................................... 58
33...................................................... 57
34...................................................... 56
35...................................................... 55
36...................................................... 54
37...................................................... 53
38...................................................... 52
39...................................................... 51
40-49................................................... 50
Above 50................................................ \3\
------------------------------------------------------------------------
\3\ Any value.
3. Part 722 is proposed to be revised as follows.
PART 722--CRITERIA FOR DETERMINING WHETHER STATE WORKERS'
COMPENSATION LAWS PROVIDE ADEQUATE COVERAGE FOR PNEUMOCONIOSIS AND
LISTING OF APPROVED STATE LAWS
722.1 Purpose.
722.2 Definitions.
722.3 General criteria; inclusion in and removal from the
Secretary's list.
722.4 The Secretary's list.
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., Secretary's Order 7-87, 52 FR 48466, Employment Standards
Order No. 90-02.
Sec. 722.1 Purpose.
Section 421 of the Black Lung Benefits Act provides that a claim
for benefits based on the total disability or death of a coal miner due
to pneumoconiosis must be filed under a State workers' compensation law
where such law provides adequate coverage for pneumoconiosis. A State
workers' compensation law may be deemed to provide adequate coverage
only when it is included on a list of such laws maintained by the
Secretary. The purpose of this part is to set forth the procedures and
criteria for inclusion on that list, and to provide that list.
Sec. 722.2 Definitions.
(a) The definitions and use of terms contained in subpart A of part
725 of this title shall be applicable to this part.
(b) For purposes of this part, the following definitions apply:
(1) State agency means, with respect to any State, the agency,
department or officer designated by the workers' compensation law of
the State to administer such law. In any case in which more than one
agency participates in the administration of a State workers'
compensation law, the Governor of the State may designate which of the
agencies shall be the State agency for purposes of this part.
(2) The Secretary's list means the list published by the Secretary
of Labor in the Federal Register (see Sec. 722.4) containing the names
of those States which have in effect a workers' compensation law which
provides adequate coverage for death or total disability due to
pneumoconiosis.
Sec. 722.3 General criteria; inclusion in and removal from the
Secretary's list.
(a) The Governor of any State or any duly authorized State agency
may, at any time, request that the Secretary include such State's
workers' compensation law on his list of those State workers'
compensation laws providing adequate coverage for total disability or
death due to pneumoconiosis. Each such request shall include a copy of
the State workers' compensation law and any other pertinent State laws,
a copy of any regulations, either proposed or promulgated, implementing
such laws; and a copy of any administrative or court decision
interpreting such laws or regulations, or, if such decisions are
published in a readily available report, a citation to such decision.
(b) Upon receipt of a request that a State be included on the
Secretary's list, the Secretary shall include the State on the list if
he finds that the State's workers' compensation law guarantees the
payment of monthly and medical benefits to all persons who would be
entitled to such benefits under the Black Lung Benefits Act at the time
of the request, at a rate no less than that provided by the Black Lung
Benefits Act. The criteria used by the Secretary in making such
determination shall include, but shall not be limited to, the criteria
set forth in section 421(b)(2) of the Act.
(c) The Secretary may require each State included on the list to
submit reports detailing the extent to which the State's workers'
compensation laws, as reflected by statute, regulation, or
administrative or court decision, continues to meet the requirements of
paragraph (b) of this section. If the Secretary concludes that the
State's workers' compensation law does not provide adequate coverage at
any time, either because of changes to the State workers' compensation
law or the Black Lung Benefits Act, he shall remove the State from the
Secretary's list after providing the State with notice of such removal
and an opportunity to be heard.
[[Page 55019]]
Sec. 722.4 The Secretary's list.
(a) The Secretary has determined that publication of the
Secretary's list in the Code of Federal Regulations is appropriate.
Accordingly, in addition to its publication in the Federal Register as
required by section 421 of the Black Lung Benefits Act, the list shall
also appear in paragraph (b) of this section.
(b) Upon review of all requests filed with the Secretary under
section 421 of the Black Lung Benefits Act and this part, and
examination of the workers' compensation laws of the States making such
requests, the Secretary has determined that the workers' compensation
law of each of the following listed States, for the period from the
date shown in the list until such date as the Secretary may make a
contrary determination, provides adequate coverage for pneumoconiosis.
State Period commencing
None
4. Part 725 is proposed to be revised as follows:
PART 725--CLAIMS FOR BENEFITS UNDER PART C OF TITLE IV OF THE
FEDERAL MINE SAFETY AND HEALTH ACT, AS AMENDED
Subpart A--General
Sec.
725.1 Statutory provisions.
725.2 Purpose and applicability of this part.
725.3 Contents of this part.
725.4 Applicability of other parts in this title.
725.101 Definitions and use of terms.
725.102 Disclosure of program information.
725.103 Burden of proof.
Subpart B--Persons Entitled to Benefits, Conditions, and Duration of
Entitlement
725.201 Who is entitled to benefits; contents of this subpart.
Conditions and Duration of Entitlement: Miner
725.202 Miner defined; conditions of entitlement, miner.
725.203 Duration and cessation of entitlement, miner.
Conditions and Duration of Entitlement: Miner's Dependents (Augmented
Benefits)
725.204 Determination of relationship; spouse.
725.205 Determination of dependency; spouse.
725.206 Determination of relationship; divorced spouse.
725.207 Determination of dependency; divorced spouse.
725.208 Determination of relationship; child.
725.209 Determination of dependency; child.
725.210 Duration of augmented benefits.
725.211 Time of determination of relationship and dependency of
spouse or child for purposes of augmentation of benefits.
Conditions and Duration of Entitlement: Miner's Survivors
725.212 Conditions of entitlement; surviving spouse or surviving
divorced spouse.
725.213 Duration of entitlement; surviving spouse or surviving
divorced spouse.
725.214 Determination of relationship; surviving spouse.
725.215 Determination of dependency; surviving spouse.
725.216 Determination of relationship; surviving divorced spouse.
725.217 Determination of dependency; surviving divorced spouse.
725.218 Conditions of entitlement; child.
725.219 Duration of entitlement; child.
725.220 Determination of relationship; child.
725.221 Determination of dependency; child.
725.222 Conditions of entitlement; parent, brother or sister.
725.223 Duration of entitlement; parent, brother or sister.
725.224 Determination of relationship; parent, brother or sister.
725.225 Determination of dependency; parent, brother or sister.
725.226 ``Good cause'' for delayed filing of proof of support.
725.227 Time of determination of relationship and dependency of
survivors.
725.228 Effect of conviction of felonious and intentional homicide
on entitlement to benefits.
Terms Used in This Subpart
725.229 Intestate personal property.
725.230 Legal impediment.
725.231 Domicile.
725.232 Member of the same household--``living with,'' ``living in
the same household,'' and ``living in the miner's household,''
defined.
725.233 Support and contributions.
Subpart C--Filing of Claims
725.301 Who may file a claim
725.302 Evidence of authority to file a claim on behalf of another.
725.303 Date and place of filing of claims.
725.304 Forms and initial processing.
725.305 When a written statement is considered a claim.
725.306 Withdrawal of a claim.
725.307 Cancellation of a request for withdrawal.
725.308 Time limits for filing claims.
725.309 Additional claims; effect of a prior denial of benefits.
725.310 Modification of awards and denials.
725.311 Communications with respect to claims; time computations.
Subpart D--Adjudication Officers; Parties and Representatives
725.350 Who are the adjudication officers.
725.351 Powers of adjudication officers.
725.352 Disqualification of adjudication officer.
725.360 Parties to proceedings
725.361 Party amicus curiae.
725.362 Representation of parties.
725.363 Qualification of representative.
725.364 Authority of representative.
725.365 Approval of representative's fees; lien against benefits.
725.366 Fees for representatives.
725.367 Payment of a claimant's attorney's fee by responsible
operator or fund.
Subpart E--Adjudication of Claims by the District Director
725.401 Claims development--general.
725.402 Approved State workers' compensation law.
725.403 [Reserved]
725.404 Development of evidence--general
725.405 Development of medical evidence; scheduling of medical
examinations and tests.
725.406 Medical examinations and tests.
725.407 Identification and notification of responsible operator.
725.408 Operator's response to notification.
725.409 Denial of a claim by reason of abandonment.
725.410 Initial findings by the district director.
725.411 Initial finding--eligibility.
725.412 Initial finding--liability.
725.413 Initial adjudication by the district director.
725.414 Development of evidence.
725.415 Action by the district director after development of
operator's evidence.
725.416 Conferences.
725.417 Action at the conclusion of conference.
725.418 Proposed decision and order.
725.419 Response to proposed decision and order.
725.420 Initial determinations.
725.421 Referral of a claim to the Office of Administrative Law
Judges.
725.422 Legal Assistance.
725.423 Extensions of time.
Subpart F--Hearings
725.450 Right to a hearing.
725.451 Request for hearing.
725.452 Type of hearing; parties.
725.453 Notice of hearing.
725.454 Time and place of hearing; transfer of cases.
725.455 Hearing procedures; generally.
725.456 Introduction of documentary evidence.
725.457 Witnesses.
725.458 Depositions; interrogatories.
725.459 Witness fees.
725.460 Consolidated hearings.
725.461 Waiver of right to appear and present evidence.
725.462 Withdrawal of controversion of issues set for formal
hearing; effect.
725.463 Issues to be resolved at hearing; new issues.
725.464 Record of hearing.
725.465 Dismissals for cause.
725.466 Order of dismissal.
725.475 Termination of hearings.
725.476 Issuance of decision and order.
725.477 Form and contents of decision and order.
[[Page 55020]]
725.478 Filing and service of decision and order.
725.479 Finality of decisions and orders.
725.480 Modification of decisions and orders.
725.481 Right to appeal to the Benefits Review Board.
725.482 Judicial review.
725.483 Costs in proceedings brought without reasonable grounds.
Subpart G--Responsible Coal Mine Operators
725.490 Statutory provisions and scope.
725.491 Operator defined.
725.492 Successor operator defined.
725.493 Employment relationship defined.
725.494 Potentially liable operators.
725.495 Criteria for determining a responsible operator.
725.496 Special claims transferred to the Trust Fund.
725.497 Procedures in special claims transferred to the Trust Fund.
Subpart H--Payment of Benefits
General Provisions
725.501 Payment provisions generally.
725.502 When benefit payments are due; manner of payment.
725.503 Date from which benefits are payable.
725.504 Payments to a claimant employed as a miner.
725.505 Payees.
725.506 Payment on behalf of another; ``legal guardian'' defined.
725.507 Guardian for minor or incompetent.
725.510 Representative payee.
725.511 Use and benefit defined.
725.512 Support of legally dependent spouse, child, or parent.
725.513 Accountability; transfer.
725.514 Certification to dependent of augmentation portion of
benefit.
725.515 Assignment and exemption from claims of creditors.
725.520 Computation of benefits.
725.521 Commutation of payments; lump sum awards.
725.522 Payments prior to final adjudication.
725.530 Operator payments; generally.
725.531 Receipt for payment.
Increases and Reductions of Benefits
725.532 Suspension, reduction, or termination of payments.
725.533 Modification of benefit amounts; general.
725.534 Reduction of State benefits.
725.535 Reductions; receipt of State or Federal benefit.
725.536 Reductions; excess earnings.
725.537 Reductions; retroactive effect of an additional claim for
benefits.
725.538 Reductions; effect of augmentation of benefits based on
subsequent qualification of individual.
725.539 More than one reduction event.
Overpayments; Underpayments
725.540 Overpayments.
725.541 Notice of waiver of adjustment or recovery of overpayment.
725.542 When waiver of adjustment or recovery may be applied.
725.543 Standards for waiver of adjustment or recovery.
725.544 Collection and compromise of claims for overpayment.
725.545 Underpayments.
725.546 Relation to provisions for reductions or increases.
725.547 Applicability of overpayment and underpayment provisions to
operator or carrier.
725.548 Procedures applicable to overpayments and underpayments.
Subpart I--Enforcement of Liability; Reports
725.601 Enforcement generally.
725.602 Reimbursement of the fund.
725.603 Payments by the fund on behalf of an operator; liens.
725.604 Enforcement of final awards.
725.605 Defaults.
725.606 Security for the payment of benefits.
725.607 Payments in addition to compensation.
725.608 Interest.
725.609 Enforcement against other persons.
725.620 Failure to secure benefits; other penalties.
725.621 Reports.
Subpart J--Medical Benefits and Vocational Rehabilitation
725.701 Availability of medical benefits.
725.702 Claims for medical benefits only under section 11 of the
Reform Act.
725.703 Physician defined.
725.704 Notification of right to medical benefits; authorization of
treatment.
725.705 Arrangements for medical care.
725.706 Authorization to provide medical services.
725.707 Reports of physicians and supervision of medical care.
725.708 Disputes concerning medical benefits.
725.710 Objective of vocational rehabilitation.
725.711 Requests for referral to vocational rehabilitation
assistance.
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.
Subpart A--General
Sec. 725.1 Statutory provisions.
(a) General. Title IV of the Federal Mine Safety and Health Act of
1977, as amended by the Black Lung Benefits Reform Act of 1977, the
Black Lung Benefits Revenue Act of 1977, the Black Lung Benefits
Revenue Act of 1981 and the Black Lung Benefits Amendments of 1981,
provides for the payment of benefits to a coal miner who is totally
disabled due to pneumoconiosis (black lung disease) and to certain
survivors of a miner who dies due to pneumoconiosis. For claims filed
prior to January 1, 1982, certain survivors could receive benefits if
the miner was totally (or for claims filed prior to June 30, 1982, in
accordance with section 411(c)(5) of the Act, partially) disabled due
to pneumoconiosis, or if the miner died due to pneumoconiosis.
(b) Part B. Part B of title IV of the Act provided that all claims
filed between December 30, 1969, and June 30, 1973, are to be filed
with, processed, and paid by the Secretary of Health, Education, and
Welfare through the Social Security Administration; claims filed by the
survivor of a miner before January 1, 1974, or within 6 months of the
miner's death if death occurred before January 1, 1974, and claims
filed by the survivor of a miner who was receiving benefits under part
B of title IV of the Act at the time of death, if filed within 6 months
of the miner's death, are also adjudicated and paid by the Social
Security Administration.
(c) Section 415. Claims filed by a miner between July 1 and
December 31, 1973, are adjudicated and paid under section 415. Section
415 provides that a claim filed between the appropriate dates shall be
filed with and adjudicated by the Secretary of Labor under certain
incorporated provisions of the Longshoremen's and Harbor Workers'
Compensation Act (33 U.S.C. 901 et seq.). A claim approved under
section 415 is paid under part B of title IV of the Act for periods of
eligibility occurring between July 1 and December 31, 1973, by the
Secretary of Labor and for periods of eligibility thereafter, is paid
by a coal mine operator which is determined liable for the claim or the
Black Lung Disability Trust Fund if no operator is identified or if the
miner's last coal mine employment terminated prior to January 1, 1970.
An operator which may be found liable for a section 415 claim is
notified of the claim and allowed to participate fully in the
adjudication of such claim. A claim filed under section 415 is for all
purposes considered as if it were a part C claim (see paragraph (d) of
this section) and the provisions of part C of title IV of the Act are
fully applicable to a section 415 claim except as is otherwise provided
in section 415.
(d) Part C. Claims filed by a miner or survivor on or after January
1, 1974, are filed, adjudicated, and paid under the provisions of part
C of title IV of the Act. Part C requires that a claim filed on or
after January 1, 1974, shall be filed under an applicable approved
State workers' compensation law, or if no such law has been approved by
the Secretary of Labor, the claim may be filed with the Secretary of
Labor under section 422 of the Act. Claims filed with the Secretary of
Labor under part C are
[[Page 55021]]
processed and adjudicated by the Secretary and paid by a coal mine
operator. If the miner's last coal mine employment terminated before
January 1, 1970, or if no responsible operator can be identified,
benefits are paid by the Black Lung Disability Trust Fund. Claims
adjudicated under part C are subject to certain incorporated provisions
of the Longshoremen's and Harbor Workers' Compensation Act.
(e) Section 435. Section 435 of the Act affords each person who
filed a claim for benefits under part B, section 415, or part C, and
whose claim had been denied or was still pending as of March 1, 1978,
the effective date of the Black Lung Benefits Reform Act of 1977, the
right to have his or her claim reviewed on the basis of the 1977
amendments to the Act, and under certain circumstances to submit new
evidence in support of the claim.
(f) Changes made by the Black Lung Benefits Reform Act of 1977. In
addition to those changes which are reflected in paragraphs (a) through
(e) of this section, the Black Lung Benefits Reform Act of 1977
contains a number of significant amendments to the Act's standards for
determining eligibility for benefits. Among these are:
(1) A provision which clarifies the definition of
``pneumoconiosis'' to include any ``chronic dust disease of the lung
and its sequelae, including respiratory and pulmonary impairments,
arising out of coal mine employment'';
(2) A provision which defines ``miner'' to include any person who
works or has worked in or around a coal mine or coal preparation
facility, and in coal mine construction or coal transportation under
certain circumstances;
(3) A provision which limits the denial of a claim solely on the
basis of employment in a coal mine;
(4) A provision which authorizes the Secretary of Labor to
establish standards and develop criteria for determining total
disability or death due to pneumoconiosis with respect to a part C
claim;
(5) A new presumption which requires the payment of benefits to the
survivors of a miner who was employed for 25 or more years in the mines
under certain conditions;
(6) Provisions relating to the treatment to be accorded a
survivor's affidavit, certain X-ray interpretations, and certain
autopsy reports in the development of a claim; and
(7) Other clarifying, procedural, and technical amendments.
(g) Changes made by the Black Lung Benefits Revenue Act of 1977.
The Black Lung Benefits Revenue Act of 1977 established the Black Lung
Disability Trust Fund which is financed by a specified tax imposed upon
each ton of coal (except lignite) produced and sold or used in the
United States after March 31, 1978. The Secretary of the Treasury is
the managing trustee of the fund and benefits are paid from the fund
upon the direction of the Secretary of Labor. The fund was made liable
for the payment of all claims approved under section 415, part C and
section 435 of the Act for all periods of eligibility occurring on or
after January 1, 1974, with respect to claims where the miner's last
coal mine employment terminated before January 1, 1970, or where
individual liability can not be assessed against a coal mine operator
due to bankruptcy, insolvency, or the like. The fund was also
authorized to pay certain claims which a responsible operator has
refused to pay within a reasonable time, and to seek reimbursement from
such operator. The purpose of the fund and the Black Lung Benefits
Revenue Act of 1977 was to insure that coal mine operators, or the coal
industry, will fully bear the cost of black lung disease for the
present time and in the future. The Black Lung Benefits Revenue Act of
1977 also contained other provisions relating to the fund and
authorized a coal mine operator to establish its own trust fund for the
payment of certain claims.
(h) Changes made by the Black Lung Benefits Amendments of 1981. In
addition to the change reflected in paragraph (a) of this section, the
Black Lung Benefits Amendments of 1981 made a number of significant
changes in the Act's standards for determining eligibility for benefits
and concerning the payment of such benefits. The following changes are
all applicable to claims filed on or after January 1, 1982:
(1) The Secretary of Labor may re-read any X-ray submitted in
support of a claim and may rely upon a second opinion concerning such
an X-ray as a means of auditing the validity of the claim;
(2) The rebuttable presumption that the death of a miner with ten
or more years employment in the coal mines, who died of a respirable
disease, was due to pneumoconiosis is no longer applicable;
(3) The rebuttable presumption that the total disability of a miner
with fifteen or more years employment in the coal mines, who has
demonstrated a totally disabling respiratory or pulmonary impairment,
is due to pneumoconiosis is no longer applicable;
(4) In the case of deceased miners, where no medical or other
relevant evidence is available, only affidavits from persons not
eligible to receive benefits as a result of the adjudication of the
claim will be considered sufficient to establish entitlement to
benefits;
(5) Unless the miner was found entitled to benefits as a result of
a claim filed prior to January 1, 1982, benefits are payable on
survivors' claims filed on and after January 1, 1982, only when the
miner's death was due to pneumoconiosis;
(6) Benefits payable under this part are subject to an offset on
account of excess earnings by the miner; and
(7) Other technical amendments.
(i) Changes made by the Black Lung Benefits Revenue Act of 1981.
The Black Lung Benefits Revenue Act of 1981 temporarily doubles the
amount of the tax upon coal until the fund shall have repaid all
advances received from the United States Treasury and the interest on
all such advances. The fund is also made liable for the payment of
certain claims previously denied under the 1972 version of the Act and
subsequently approved under section 435 and for the reimbursement of
operators and insurers for benefits previously paid by them on such
claims. With respect to claims filed on or after January 1, 1982, the
fund's authorization for the payment of interim benefits is limited to
the payment of prospective benefits only. These changes also define the
rates of interest to be paid to and by the fund.
(j) Longshoremen's Act provisions. The adjudication of claims filed
under sections 415, 422 and 435 of the Act is governed by various
procedural and other provisions contained in the Longshoremen's and
Harbor Workers' Compensation Act (LHWCA), as amended from time to time,
which are incorporated within the Act by sections 415 and 422. The
incorporated LHWCA provisions are applicable under the Act except as is
otherwise provided by the Act or as provided by regulations of the
Secretary. Although occupational disease benefits are also payable
under the LHWCA, the primary focus of the procedures set forth in that
Act is upon a time definite of traumatic injury or death. Because of
this and other significant differences between a black lung and
longshore claim, it is determined, in accordance with the authority set
forth in section 422 of the Act, that certain of the incorporated
procedures prescribed by the LHWCA must be altered to fit the
circumstances ordinarily confronted in the adjudication of a black lung
claim. The changes made are based upon the Department's experience in
processing black lung claims since July 1, 1973,
[[Page 55022]]
and all such changes are specified in this part or part 727 of this
subchapter (see Sec. 725.4(d)). No other departure from the
incorporated provisions of the LHWCA is intended.
(k) Social Security Act provisions. Section 402 of the Act
incorporates certain definitional provisions from the Social Security
Act, 42 U.S.C. 301 et seq. Section 430 provides that the 1972, 1977 and
1981 amendments to part B of the Act shall also apply to part C ``to
the extent appropriate.'' Sections 412 and 413 incorporate various
provisions of the Social Security Act into part B of the Act. To the
extent appropriate, these provisions also apply to part C. In certain
cases, the Department has varied the terms of the Social Security Act
provisions to accommodate the unique needs of the black lung benefits
program. Parts of the Longshore and Harbor Workers' Compensation Act
are also incorporated into part C. Where the incorporated provisions of
the two acts are inconsistent, the Department has exercised its broad
regulatory powers to choose the extent to which incorporation is
appropriate.
Sec. 725.2 Purpose and applicability of this part.
(a) This part sets forth the procedures to be followed and
standards to be applied in filing, processing, adjudicating, and paying
claims filed under part C of title IV of the Act.
(b) This part applies to all claims filed under part C of title IV
of the Act on or after August 18, 1978 and shall also apply to claims
that were pending on August 18, 1978.
(c) The provisions of this part reflect revisions that became
effective on [the effective date of the final rule]. This part applies
to all claims filed, and all benefits payments made, after [the
effective date of the final rule]. With the exception of the following
sections, this part shall also apply to the adjudication of claims that
were pending on [the effective date of the final rule]: Secs. 725.309,
725.310, 725.351, 725.360, 725.406, 725.407, 725.408, 725.410, 725.411,
725.412, 725.413, 725.414, 725.415, 725.417, 725.418, 725.423, 725.454,
725.456, 725.457, 725.459, 725.491, 725.492, 725.493, 725.494, 725.495,
725.547. The version of those sections set forth in 20 CFR, parts 500
to end, edition revised as of April 1, 1996, apply to the adjudications
of claims that were pending on [the effective date of the final rule].
For purposes of construing the provisions of this section, a claim
shall be considered pending on [the effective date of the final rule]
if it was not finally denied more than one year prior to that date.
Sec. 725.3 Contents of this part.
(a) This subpart describes the statutory provisions which relate to
claims considered under this part, the purpose and scope of this part,
definitions and usages of terms applicable to this part, and matters
relating to the availability of information collected by the Department
of Labor in connection with the processing of claims.
(b) Subpart B contains criteria for determining who may be found
entitled to benefits under this part and other provisions relating to
the conditions and duration of eligibility of a particular individual.
(c) Subpart C describes the procedures to be followed and action to
be taken in connection with the filing of a claim under this part.
(d) Subpart D sets forth the duties and powers of the persons
designated by the Secretary of Labor to adjudicate claims and
provisions relating to the rights of parties and representatives of
parties.
(e) Subpart E contains the procedures for developing evidence and
adjudicating entitlement and liability issues by the district director.
(f) Subpart F describes the procedures to be followed if a hearing
before the Office of Administrative Law Judges is required.
(g) Subpart G contains provisions governing the identification of a
coal mine operator which may be liable for the payment of a claim.
(h) Subpart H contains provisions governing the payment of benefits
with respect to an approved claim.
(i) Subpart I describes the statutory mechanisms provided for the
enforcement of a coal mine operator's liability, sets forth the
penalties which may be applied in the case of a defaulting coal mine
operator, and describes the obligation of coal operators and their
insurance carriers to file certain reports.
(j) Subpart J describes the right of certain beneficiaries to
receive medical treatment benefits and vocational rehabilitation under
the Act.
Sec. 725.4 Applicability of other parts in this title.
(a) Part 718. Part 718 of this subchapter, which contains the
criteria and standards to be applied in determining whether a miner is
or was totally disabled due to pneumoconiosis, or whether a miner died
due to pneumoconiosis, shall be applicable to the determination of
claims under this part. Claims filed after March 31, 1980, are subject
to part 718 as promulgated by the Secretary in accordance with section
402(f)(1) of the Act on February 29, 1980 (see Sec. 725.2(c)). The
criteria contained in subpart C of part 727 of this subchapter are
applicable in determining claims filed prior to April 1, 1980, under
this part, and such criteria shall be applicable at all times with
respect to claims filed under this part and under section 11 of the
Black Lung Benefits Reform Act of 1977.
(b) Parts 715, 717, and 720. Pertinent and significant provisions
of Parts 715, 717, and 720 of this subchapter (contained in 20 CFR,
parts 500 to end, edition revised as of April 1, 1978), which
established the procedures for the filing, processing, and payment of
claims filed under section 415 of the Act, are included within this
part as appropriate.
(c) Part 726. Part 726 of this subchapter, which sets forth the
obligations imposed upon a coal operator to insure or self-insure its
liability for the payment of benefits to certain eligible claimants, is
applicable to this part as appropriate.
(d) Part 727. Part 727 of this subchapter, which governs the
review, adjudication and payment of pending and denied claims under
section 435 of the Act, is applicable with respect to such claims. The
criteria contained in subpart C of part 727 for determining a
claimant's eligibility for benefits are applicable under this part with
respect to all claims filed before April 1, 1980, and to all claims
filed under this part and under section 11 of the Black Lung Benefits
Reform Act of 1977. Because the part 727 regulations affect an
increasingly smaller number of claims, however, the Department has
discontinued publication of the criteria in the Code of Federal
Regulations. The part 727 criteria may be found at 43 FR 36818, Aug.
18, 1978 or 20 CFR, parts 500 to end, edition revised as of April 1,
1996.
(e) Part 410. Part 410 of this title, which sets forth provisions
relating to a claim for black lung benefits under part B of title IV of
the Act, is inapplicable to this part except as is provided in this
part, or in part 718 of this subchapter.
Sec. 725.101 Definitions and use of terms.
(a) Definitions. For purposes of this subchapter, except where the
content clearly indicates otherwise, the following definitions apply:
(1) The Act means the Federal Coal Mine Health and Safety Act,
Public Law 91-173, 83 Stat. 742, 30 U.S.C. 801-960, as amended by the
Black Lung Benefits Act of 1972, the Mine Safety and Health Act of
1977, the Black Lung Benefits Reform Act of 1977, the Black Lung
Benefits Revenue Act of 1977, the Black Lung Benefits Revenue Act of
1981, and
[[Page 55023]]
the Black Lung Benefits Amendments of 1981.
(2) The Longshoremen's Act or LHWCA means the Longshoremen's and
Harbor Workers' Compensation Act of March 4, 1927, c. 509, 44 Stat.
1424, 33 U.S.C. 901-950, as amended from time to time.
(3) The Social Security Act means the Social Security Act, Act of
August 14, 1935, c. 531, 49 Stat. 620, 42 U.S.C. 301-431, as amended
from time to time.
(4) Administrative law judge means a person qualified under 5
U.S.C. 3105 to conduct hearings and adjudicate claims for benefits
filed pursuant to section 415 and part C of the Act. Until March 1,
1979, it shall also mean an individual appointed to conduct such
hearings and adjudicate such claims under Public Law 94-504.
(5) Beneficiary means a miner or any surviving spouse, divorced
spouse, child, parent, brother or sister, who is entitled to benefits
under either section 415 or part C of title IV of the Act.
(6) Benefits means all money or other benefits paid or payable
under section 415 or part C of title IV of the Act on account of
disability or death due to pneumoconiosis, including augmented benefits
(see Sec. 725.520(c)). The term also includes any expenses related to
the medical examination and testing authorized by the district director
pursuant to Sec. 725.406.
(7) Benefits Review Board or Board means the Benefits Review Board,
U.S. Department of Labor, an appellate tribunal appointed by the
Secretary of Labor pursuant to the provisions of section 21(b)(1) of
the LHWCA. See parts 801 and 802 of this title.
(8) Black Lung Disability Trust Fund or the fund means the Black
Lung Disability Trust Fund established by the Black Lung Benefits
Revenue Act of 1977, as amended by the Black Lung Benefits Revenue Act
of 1981, for the payment of certain claims adjudicated under this part
(see subpart G of this part).
(9) Chief Administrative Law Judge means the Chief Administrative
Law Judge of the Office of Administrative Law Judges, U.S. Department
of Labor, 800 K Street, NW., suite 400, Washington, DC 20001-8002.
(10) Claim means a written assertion of entitlement to benefits
under section 415 or part C of title IV of the Act, submitted in a form
and manner authorized by the provisions of this subchapter.
(11) Claimant means an individual who files a claim for benefits
under this part.
(12) Coal mine means an area of land and all structures,
facilities, machinery, tools, equipment, shafts, slopes, tunnels,
excavations and other property, real or personal, placed upon, under or
above the surface of such land by any person, used in, or to be used
in, or resulting from, the work of extracting in such area bituminous
coal, lignite or anthracite from its natural deposits in the earth by
any means or method, and in the work of preparing the coal so
extracted, and includes custom coal preparation facilities.
(13) Coal preparation means the breaking, crushing, sizing,
cleaning, washing, drying, mixing, storing and loading of bituminous
coal, lignite or anthracite, and such other work of preparing coal as
is usually done by the operator of a coal mine. For purposes of this
definition, the term does not include coal preparation performed by
coke oven workers.
(14) Department means the United States Department of Labor.
(15) Director means the Director, OWCP, or his or her designee.
(16) District Director means a person appointed as provided in
sections 39 and 40 of the LHWCA, or his or her designee, who is
authorized to develop and adjudicate claims as provided in this
subchapter (see Sec. 725.350). The term District Director applies
instead of the term Deputy Commissioner wherever that term appears in
this subchapter. This application is for administrative purposes only
and in no way affects the power or authority of the position as
established in the statute. Any action taken by a person under the
authority of a district director will be considered the action of a
deputy commissioner.
(17) Division or DCMWC means the Division of Coal Mine Workers'
Compensation in the OWCP, Employment Standards Administration, United
States Department of Labor.
(18) Insurer or carrier means any private company, corporation,
mutual association, reciprocal or interinsurance exchange, or any other
person or fund, including any State fund, authorized under the laws of
a State to insure employers' liability under workers' compensation
laws. The term also includes the Secretary of Labor in the exercise of
his or her authority under section 433 of the Act.
(19) Miner or coal miner means any individual who works or has
worked in or around a coal mine or coal preparation facility in the
extraction or preparation of coal. The term also includes an individual
who works or has worked in coal mine construction or transportation in
or around a coal mine, to the extent such individual was exposed to
coal dust as a result of such employment (see Sec. 725.202). For
purposes of this definition, the term does not include coke oven
workers whose activities involve the preparation or use of coal for the
coke manufacturing process.
(20) The Nation's coal mines means all coal mines located in any
State.
(21) Office or OWCP means the Office of Workers' Compensation
Programs, United States Department of Labor.
(22) Office of Administrative Law Judges means the Office of
Administrative Law Judges, U.S. Department of Labor.
(23) Operator means any owner, lessee, or other person who
operates, controls or supervises a coal mine, including a prior or
successor operator as defined in section 422 of the Act and certain
transportation and construction employers (see subpart G of this part).
(24) Person means an individual, partnership, association,
corporation, firm, subsidiary or parent of a corporation, or other
organization or business entity.
(25) Pneumoconiosis means a chronic dust disease of the lung and
its sequelae, including respiratory and pulmonary impairments, arising
out of coal mine employment (see part 718 of this subchapter).
(26) Responsible operator means an operator which has been
determined to be liable for the payment of benefits to a claimant for
periods of eligibility after December 31, 1973, with respect to a claim
filed under section 415 or part C of title IV of the Act or reviewed
under section 435 of the Act.
(27) Secretary means the Secretary of Labor, United States
Department of Labor, or a person, authorized by him or her to perform
his or her functions under title IV of the Act.
(28) State includes any state of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, American
Samoa, Guam, the Trust Territory of the Pacific Islands, and prior to
January 3, 1959, and August 21, 1959, respectively, the territories of
Alaska and Hawaii.
(29) Total disability and partial disability, for purposes of this
part, have the meaning given them as provided in part 718 of this
subchapter.
(30) Underground coal mine means a coal mine in which the earth and
other materials which lie above and around the natural deposit of coal
(i.e., overburden) are not removed in mining; including all land,
structures, facilities, machinery, tools, equipment, shafts, slopes,
tunnels, excavations and other property, real or personal, appurtenant
thereto.
[[Page 55024]]
(31) A workers' compensation law means a law providing for payment
of benefits to employees, and their dependents and survivors, for
disability on account of injury, including occupational disease, or
death, suffered in connection with their employment. A payment funded
wholly out of general revenues shall not be considered a payment under
a workers' compensation law.
(32) Year means a period of one calendar year (365 days, or 366
days if one of the days is February 29), or partial periods totalling
one year, during which the miner worked in or around a coal mine or
mines. A ``working day'' means any day or part of a day for which a
miner received pay for work as a miner, including any day for which the
miner received pay while on an approved absence, such as vacation or
sick leave.
(i) If the evidence establishes that the miner worked in or around
coal mines at least 125 working days during a calendar year or partial
periods totalling one year, then the miner has worked one year in coal
mine employment for all purposes under the Act. If a miner worked fewer
than 125 working days in a year, he or she has worked a fractional year
based on the ratio of the actual number of days worked to 125. Proof
that the miner worked more than 125 working days in a calendar year or
partial periods totalling a year, shall not establish more than one
year.
(ii) To the extent the evidence permits, the beginning and ending
dates of all periods of coal mine employment shall be ascertained. The
dates and length of employment may be established by any credible
evidence including (but not limited to) company records, pension
records, earnings statements, coworker affidavits, and sworn testimony.
If the evidence establishes that the miner's employment lasted for a
calendar year, it shall be presumed, in the absence of evidence to the
contrary, that the miner spent at least 125 working days in such
employment.
(iii) If the evidence is insufficient to establish the beginning
and ending dates of the miner's coal mine employment, or the miner's
employment lasted less than a calendar year, then the adjudication
officer may use the following formula: divide the miner's yearly income
from work as a miner by the coal mine industry's average daily earnings
for that year, as reported by the Bureau of Labor Statistics (BLS). A
copy of the BLS table shall be made a part of the record if the
adjudication officer uses this method to establish the length of the
miner's work history.
(iv) No periods of coal mine employment occurring outside the
United States shall be considered in computing the miner's work
history.
(b) Statutory terms. The definitions contained in this section
shall not be construed in derogation of terms of the Act.
(c) Dependents and survivors. Dependents and survivors are those
persons described in subpart B of this part.
Sec. 725.102 Disclosure of program information.
(a) All reports, records, or other documents filed with the OWCP
with respect to claims are the records of the OWCP. The Director or his
or her designee shall be the official custodian of those records
maintained by the OWCP at its national office. The District Director
shall be the official custodian of those records maintained at a
district office.
(b) The official custodian of any record sought to be inspected
shall permit or deny inspection in accordance with the Department of
Labor's regulations pertaining thereto (see 29 CFR part 70). The
original record in any such case shall not be removed from the Office
of the custodian for such inspection. The custodian may, in his or her
discretion, deny inspection of any record or part thereof which is of a
character specified in 5 U.S.C. 552(b) if in his or her opinion such
inspection may result in damage, harm, or harassment to the beneficiary
or to any other person. For special provisions concerning release of
information regarding injured employees undergoing vocational
rehabilitation, see Sec. 702.508 of this chapter.
(c) Any person may request copies of records he or she has been
permitted to inspect. Such requests shall be addressed to the official
custodian of the records sought to be copied. The official custodian
shall provide the requested copies under the terms and conditions
specified in the Department of Labor's regulations relating thereto
(see 29 CFR part 70).
(d) Any party to a claim (Sec. 725.360) or his or her duly
authorized representative shall be permitted upon request to inspect
the file which has been compiled in connection with such claim. Any
party to a claim or representative of such party shall upon request be
provided with a copy of any or all material contained in such claim
file. A request for information by a party or representative made under
this paragraph shall be answered within a reasonable time after receipt
by the Office. Internal documents prepared by the district director
which do not constitute evidence of a fact which must be established in
connection with a claim shall not be routinely provided or presented
for inspection in accordance with a request made under this paragraph.
Sec. 725.103 Burden of proof.
Except as otherwise provided in this part and part 718 of this
subchapter, the burden of proving a fact alleged in connection with any
provision shall rest with the party making such allegation.
Subpart B--Persons Entitled to Benefits, Conditions, and Duration
of Entitlement
Sec. 725.201 Who is entitled to benefits; contents of this subpart.
(a) Section 415 and part C of the Act provide for the payment of
periodic benefits in accordance with this part to:
(1) A miner (see Sec. 725.202) who is determined to be totally
disabled due to pneumoconiosis; or
(2) The surviving spouse or surviving divorced spouse or, where
neither exists, the child of a deceased miner, where the deceased
miner:
(i) Was receiving benefits under section 415 or part C of title IV
of the Act as a result of a claim filed prior to January 1, 1982; or
(ii) Is determined as a result of a claim filed prior to January 1,
1982, to have been totally disabled due to pneumoconiosis at the time
of death, or to have died due to pneumoconiosis. Survivors of miners
whose claims are filed on or after January 1, 1982, must establish that
the deceased miner's death was due to pneumoconiosis in order to
establish their entitlement to benefits, except where entitlement is
established under Sec. 718.306 of this subchapter on a survivor's claim
filed prior to June 30, 1982, or;
(3) The child of a miner's surviving spouse who was receiving
benefits under section 415 or part C of title IV of the Act at the time
of such spouse's death; or
(4) The surviving dependent parents, where there is no surviving
spouse or child, or the surviving dependent brothers or sisters, where
there is no surviving spouse, child, or parent, of a miner, where the
deceased miner;
(i) Was receiving benefits under section 415 or part C of title IV
of the Act as a result of a claim filed prior to January 1, 1982; or
(ii) Is determined as a result of a claim filed prior to January 1,
1982, to have been totally disabled due to
[[Page 55025]]
pneumoconiosis at the time of death, or to have died due to
pneumoconiosis. Survivors of miners whose claims are filed on or after
January 1, 1982, must establish that the deceased miner's death was due
to pneumoconiosis in order to establish their entitlement to benefits,
except where entitlement is established under Sec. 718.306 of this
subchapter on a survivor's claim filed prior to June 30, 1982.
(b) Section 411(c)(5) of the Act provides for the payment of
benefits to the eligible survivors of a miner employed for 25 or more
years in the mines prior to June 30, 1971, if the miner's death
occurred on or before March 1, 1978, and if the claim was filed prior
to June 30, 1982, unless it is established that at the time of death,
the miner was not totally or partially disabled due to pneumoconiosis.
For the purposes of this part the term ``total disability'' shall mean
partial disability with respect to a claim for which eligibility is
established under section 411(c)(5) of the Act. See Sec. 718.306 of
this subchapter which implements this provision of the Act.
(c) The provisions contained in this subpart describe the
conditions of entitlement to benefits applicable to a miner, or a
surviving spouse, child, parent, brother, or sister, and the events
which establish or terminate entitlement to benefits.
(d) In order for an entitled miner or surviving spouse to qualify
for augmented benefits because of one or more dependents, such
dependents must meet relationship and dependency requirements with
respect to such beneficiary prescribed by or pursuant to the Act. Such
requirements are also set forth in this subpart.
Conditions and Duration of Entitlement: Miner
Sec. 725.202 Miner defined; condition of entitlement, miner.
(a) Miner defined. A ``miner'' for the purposes of this part is any
person who works or has worked in or around a coal mine or coal
preparation facility in the extraction, preparation, or transportation
of coal, and any person who works or has worked in coal mine
construction or maintenance in or around a coal mine or coal
preparation facility. There shall be a rebuttable presumption that any
person working in or around a coal mine or coal preparation facility is
a miner. This presumption may be rebutted by proof that:
(1) The person was not engaged in the extraction, preparation or
transportation of coal while working at the mine site, or in
maintenance or construction of the mine site; or
(2) The individual was not regularly employed in or around a coal
mine or coal preparation facility.
(b) Coal mine construction and transportation workers; special
provisions. A coal mine construction or transportation worker shall be
considered a miner to the extent such individual is or was exposed to
coal mine dust as a result of employment in or around a coal mine or
coal preparation facility. A transportation worker shall be considered
a miner to the extent that his or her work is integral to the
extraction or preparation of coal. A construction worker shall be
considered a miner to the extent that his or her work is integral to
the building of a coal or underground mine (see Sec. 725.101(a)(12) and
(30)).
(1) There shall be a rebuttable presumption that such individual
was exposed to coal mine dust during all periods of such employment
occurring in or around a coal mine or coal preparation facility for
purposes of:
(i) Determining whether such individual is or was a miner;
(ii) Establishing the applicability of any of the presumptions
described in section 411(c) of the Act and part 718 of this subchapter;
and
(iii) Determining the identity of a coal mine operator liable for
the payment of benefits in accordance with Sec. 725.495.
(2) The presumption may be rebutted by evidence which demonstrates
that:
(i) The individual was not regularly exposed to coal mine dust
during his or her work in or around a coal mine or coal preparation
facility; or
(ii) The individual did not work regularly in or around a coal mine
or coal preparation facility.
(c) A person who is or was a self-employed miner or independent
contractor, and who otherwise meets the requirements of this paragraph,
shall be considered a miner for the purposes of this part.
(d) Conditions of entitlement; miner. An individual is eligible for
benefits under this subchapter if the individual:
(1) Is a miner as defined in this section; and
(2) Has met the requirements for entitlement to benefits by
establishing that he or she:
(i) Has pneumoconiosis (see Sec. 718.202), and
(ii) The pneumoconiosis arose out of coal mine employment (see
Sec. 718.203), and
(iii) Is totally disabled (see Sec. 718.204(c)), and
(iv) The pneumoconiosis contributes to the total disability (see
Sec. 718.204(c)); and
(3) Has filed a claim for benefits in accordance with the
provisions of this part.
Sec. 725.203 Duration and cessation of entitlement; miner.
(a) An individual is entitled to benefits as a miner for each month
beginning with the first month on or after January 1, 1974, in which
the miner is totally disabled due to pneumoconiosis arising out of coal
mine employment.
(b) The last month for which such individual is entitled to
benefits is the month before the month during which either of the
following events first occurs:
(1) The miner dies; or
(2) The miner's total disability ceases (see Sec. 725.504).
(c) An individual who has been finally adjudged to be totally
disabled due to pneumoconiosis and is receiving benefits under the Act
shall promptly notify the Office and the responsible coal mine
operator, if any, if he or she engages in his or her usual coal mine
work or comparable and gainful work.
(d) Upon reasonable notice, an individual who has been finally
adjudged entitled to benefits shall submit to any additional tests or
examinations the Office deems appropriate if an issue arises pertaining
to the validity of the original award.
Conditions and Duration of Entitlement: Miner's Dependents
(Augmented Benefits)
Sec. 725.204 Determination of relationship; spouse.
(a) For the purpose of augmenting benefits, an individual will be
considered to be the spouse of a miner if:
(1) The courts of the State in which the miner is domiciled would
find that such individual and the miner validly married; or
(2) The courts of the State in which the miner is domiciled would
find, under the law they would apply in determining the devolution of
the miner's intestate personal property, that the individual is the
miner's spouse; or
(3) Under State law, such individual would have the right of a
spouse to share in the miner's intestate personal property; or
(4) Such individual went through a marriage ceremony with the miner
resulting in a purported marriage between them and which, but for a
legal impediment, would have been a valid marriage, unless the
individual entered into the purported marriage with knowledge that it
was not a valid marriage, or if such individual and the
[[Page 55026]]
miner were not living in the same household in the month in which a
request is filed that the miner's benefits be augmented because such
individual qualifies as the miner's spouse.
(b) The qualification of an individual for augmentation purposes
under this section shall end with the month before the month in which:
(1) The individual dies, or
(2) The individual who previously qualified as a spouse for
purposes of Sec. 725.520(c), entered into a valid marriage without
regard to this section, with a person other than the miner.
Sec. 725.205 Determination of dependency; spouse.
For the purposes of augmenting benefits, an individual who is the
miner's spouse (see Sec. 725.204) will be determined to be dependent
upon the miner if:
(a) The individual is a member of the same household as the miner
(see Sec. 725.232); or
(b) The individual is receiving regular contributions from the
miner for support (see Sec. 725.233(c)); or
(c) The miner has been ordered by a court to contribute to such
individual's support (see Sec. 725.233(e)); or
(d) The individual is the natural parent of the son or daughter of
the miner; or
(e) The individual was married to the miner (see Sec. 725.204) for
a period of not less than 1 year.
Sec. 725.206 Determination of relationship; divorced spouse.
For the purposes of augmenting benefits with respect to any claim
considered or reviewed under this part or part 727 of this subchapter
(see Sec. 725.4(d)), an individual will be considered to be the
divorced spouse of a miner if the individual's marriage to the miner
has been terminated by a final divorce on or after the 10th anniversary
of the marriage unless, if such individual was married to and divorced
from the miner more than once, such individual was married to the miner
in each calendar year of the period beginning 10 years immediately
before the date on which any divorce became final.
Sec. 725.207 Determination of dependency; divorced spouse.
For the purpose of augmenting benefits, an individual who is the
miner's divorced spouse (Sec. 725.206) will be determined to be
dependent upon the miner if:
(a) The individual is receiving at least one-half of his or her
support from the miner (see Sec. 725.233(g)); or
(b) The individual is receiving substantial contributions from the
miner pursuant to a written agreement (see Sec. 725.233(c) and (f)); or
(c) A court order requires the miner to furnish substantial
contributions to the individual's support (see Sec. 725.233(c) and
(e)).
Sec. 725.208 Determination of relationship; child.
As used in this section, the term ``beneficiary'' means only a
surviving spouse entitled to benefits at the time of death (see
Sec. 725.212), or a miner. An individual will be considered to be the
child of a beneficiary if:
(a) The courts of the State in which the beneficiary is domiciled
(see Sec. 725.231) would find, under the law they would apply, that the
individual is the beneficiary's child; or
(b) The individual is the legally adopted child of such
beneficiary; or
(c) The individual is the stepchild of such beneficiary by reason
of a valid marriage of the individual's parent or adopting parent to
such beneficiary; or
(d) The individual does not bear the relationship of child to such
beneficiary under paragraph (a), (b), or (c) of this section, but
would, under State law, have the same right as a child to share in the
beneficiary's intestate personal property; or
(e) The individual is the natural son or daughter of a beneficiary
but is not a child under paragraph (a), (b), or (c) of this section,
and is not considered to be the child of the beneficiary under
paragraph (d) of this section if the beneficiary and the mother or the
father, as the case may be, of the individual went through a marriage
ceremony resulting in a purported marriage between them which but for a
legal impediment (see Sec. 725.230) would have been a valid marriage;
or
(f) The individual is the natural son or daughter of a beneficiary
but is not a child under paragraph (a), (b), or (c) of this section,
and is not considered to be the child of the beneficiary under
paragraph (d) or (e) of this section, such individual shall
nevertheless be considered to be the child of the beneficiary if:
(1) The beneficiary, prior to his or her entitlement to benefits,
has acknowledged in writing that the individual is his or her son or
daughter, or has been decreed by a court to be the parent of the
individual, or has been ordered by a court to contribute to the support
of the individual (see Sec. 725.233(e)) because the individual is his
or her son or daughter; or
(2) Such beneficiary is shown by satisfactory evidence to be the
father or mother of the individual and was living with or contributing
to the support of the individual at the time the beneficiary became
entitled to benefits.
Sec. 725.209 Determination of dependency; child.
(a) For purposes of augmenting the benefits of a miner or surviving
spouse, the term ``beneficiary'' as used in this section means only a
miner or surviving spouse entitled to benefits (see Sec. 725.202 and
Sec. 725.212). An individual who is the beneficiary's child
(Sec. 725.208) will be determined to be, or to have been, dependent on
the beneficiary, if the child:
(1) Is unmarried; and
(2)(i) Is under 18 years of age; or
(ii) Is under a disability as defined in section 223(d) of the
Social Security Act, 42 U.S.C. 423(d); or
(iii) Is 18 years of age or older and is a student.
(b)(1) The term ``student'' means a ``full-time student'' as
defined in section 202(d)(7) of the Social Security Act, 42 U.S.C.
402(d)(7) (see Secs. 404.367 through 404.369 of this title), or an
individual under 23 years of age who has not completed 4 years of
education beyond the high school level and who is regularly pursuing a
full-time course of study or training at an institution which is:
(i) A school, college, or university operated or directly supported
by the United States, or by a State or local government or political
subdivision thereof; or
(ii) A school, college, or university which has been accredited by
a State or by a State-recognized or nationally-recognized accrediting
agency or body; or
(iii) A school, college, or university not so accredited but whose
credits are accepted, on transfer, by at least three institutions which
are so accredited; or
(iv) A technical, trade, vocational, business, or professional
school accredited or licensed by the Federal or a state government or
any political subdivision thereof, providing courses of not less than 3
months' duration that prepare the student for a livelihood in a trade,
industry, vocation, or profession.
(2) A student will be considered to be ``pursuing a full-time
course of study or training at an institution'' if the student is
enrolled in a noncorrespondence course of at least 13 weeks duration
and is carrying a subject load which is considered full-time for day
students under the institution's standards and practices. A student
beginning or ending a full-time course of study or training in part of
any month will be considered to
[[Page 55027]]
be pursuing such course for the entire month.
(3) A child is considered not to have ceased to be a student:
(i) During any interim between school years, if the interim does
not exceed 4 months and the child shows to the satisfaction of the
Office that he or she has a bona fide intention of continuing to pursue
a full-time course of study or training; or
(ii) During periods of reasonable duration in which, in the
judgment of the Office, the child is prevented by factors beyond the
child's control from pursuing his or her education.
(4) A student whose 23rd birthday occurs during a semester or the
enrollment period in which such student is pursuing a full-time course
of study or training shall continue to be considered a student until
the end of such period, unless eligibility is otherwise terminated.
Sec. 725.210 Duration of augmented benefits.
Augmented benefits payable on behalf of a spouse or divorced
spouse, or a child, shall begin with the first month in which the
dependent satisfies the conditions of relationship and dependency set
forth in this subpart. Augmentation of benefits on account of a
dependent continues through the month before the month in which the
dependent ceases to satisfy these conditions, except in the case of a
child who qualifies as a dependent because such child is a student. In
the latter case, benefits continue to be augmented through the month
before the first month during no part of which such child qualifies as
a student.
Sec. 725.211 Time of determination of relationship and dependency of
spouse or child for purposes of augmentation of benefits.
With respect to the spouse or child of a miner entitled to
benefits, and with respect to the child of a surviving spouse entitled
to benefits, the determination as to whether an individual purporting
to be a spouse or child is related to or dependent upon such miner or
surviving spouse shall be based on the facts and circumstances present
in each case, at the appropriate time.
Conditions and Duration of Entitlement: Miner's Survivors
Sec. 725.212 Condition of entitlement; surviving spouse or surviving
divorced spouse.
(a) An individual who is the surviving spouse or surviving divorced
spouse of a miner is eligible for benefits if such individual:
(1) Is not married;
(2) Was dependent on the miner at the pertinent time; and
(3) The deceased miner either:
(i) Was receiving benefits under section 415 or part C of title IV
of the Act at the time of death as a result of a claim filed prior to
January 1, 1982; or
(ii) Is determined as a result of a claim filed prior to January 1,
1982, to have been totally disabled due to pneumoconiosis at the time
of death or to have died due to pneumoconiosis. A surviving spouse or
surviving divorced spouse of a miner whose claim is filed on or after
January 1, 1982, must establish that the deceased miner's death was due
to pneumoconiosis in order to establish entitlement to benefits, except
where entitlement is established under Sec. 718.306 of this subchapter
on a claim filed prior to June 30, 1982.
(b) If more than one spouse meets the conditions of entitlement
prescribed in paragraph (a) of this section, then each spouse will be
considered a beneficiary for purposes of section 412(a)(2) of the Act
without regard to the existence of any other entitled spouse or
spouses.
Sec. 725.213 Duration of entitlement; surviving spouse or surviving
divorced spouse.
(a) An individual is entitled to benefits as a surviving spouse, or
as a surviving divorced spouse, for each month beginning with the first
month in which all of the conditions of entitlement prescribed in
Sec. 725.212 are satisfied.
(b) The last month for which such individual is entitled to such
benefits is the month before the month in which either of the following
events first occurs:
(1) The surviving spouse or surviving divorced spouse marries; or
(2) The surviving spouse or surviving divorced spouse dies.
(c) A surviving spouse or surviving divorced spouse whose
entitlement to benefits has been terminated pursuant to
Sec. 725.213(b)(1) may thereafter again become entitled to such
benefits upon filing application for such reentitlement, beginning with
the first month after the marriage ends and such individual meets the
requirements of Sec. 725.212. The individual shall not be required to
reestablish the miner's entitlement to benefits (Sec. 725.212(a)(3)(i))
or the miner's death due to pneumoconiosis (Sec. 725.212(a)(3)(ii)).
Sec. 725.214 Determination of relationship; surviving spouse.
An individual shall be considered to be the surviving spouse of a
miner if:
(a) The courts of the State in which the miner was domiciled (see
Sec. 725.231) at the time of his or her death would find that the
individual and the miner were validly married; or
(b) The courts of the State in which the miner was domiciled (see
Sec. 725.231) at the time of the miner's death would find that the
individual was the miner's surviving spouse; or
(c) Under State law, such individual would have the right of the
spouse to share in the miner's interstate personal property; or
(d) Such individual went through a marriage ceremony with the miner
resulting in a purported marriage between them and which but for a
legal impediment (see Sec. 725.230) would have been a valid marriage,
unless such individual entered into the purported marriage with
knowledge that it was not a valid marriage, or if such individual and
the miner were not living in the same household at the time of the
miner's death.
Sec. 725.215 Determination of dependency; surviving spouse.
An individual who is the miner's surviving spouse (see
Sec. 725.214) shall be determined to have been dependent on the miner
if, at the time of the miner's death:
(a) The individual was living with the miner (see Sec. 725.232); or
(b) The individual was dependent upon the miner for support or the
miner has been ordered by a court to contribute to such individual's
support (see Sec. 725.233); or
(c) The individual was living apart from the miner because of the
miner's desertion or other reasonable cause; or
(d) The individual is the natural parent of the miner's son or
daughter;
(e) The individual had legally adopted the miner's son or daughter
while the individual was married to the miner and while such son or
daughter was under the age of 18; or
(f) The individual was married to the miner at the time both of
them legally adopted a child under the age of 18; or
(g) (1) The individual was married to the miner for a period of not
less than 9 months immediately before the day on which the miner died,
unless the miner's death:
(i) Is accidental (as defined in paragraph (g)(2) of this section),
or
(ii) Occurs in line of duty while the miner is a member of a
uniformed service serving on active duty (as defined in Sec. 404.1019
of this title), and the surviving spouse was married to the miner for a
period of not less than 3 months immediately prior to the day on which
such miner died.
[[Page 55028]]
(2) For purposes of paragraph (g)(l)(i) of this section, the death
of a miner is accidental if such individual received bodily injuries
solely through violent, external, and accidental means, and as a direct
result of the bodily injuries and independently of all other causes,
dies not later than 3 months after the day on which such miner receives
such bodily injuries. The term ``accident'' means an event that was
unpremeditated and unforeseen from the standpoint of the deceased
individual. To determine whether the death of an individual did, in
fact, result from an accident the adjudication officer will consider
all the circumstances surrounding the casualty. An intentional and
voluntary suicide will not be considered to be death by accident;
however, suicide by an individual who is so incompetent as to be
incapable of acting intentionally and voluntarily will be considered to
be a death by accident. In no event will the death of an individual
resulting from violent and external causes be considered a suicide
unless there is direct proof that the fatal injury was self-inflicted.
(3) The provisions of this paragraph (g) shall not apply if the
adjudication officer determines that at the time of the marriage
involved, the miner would not reasonably have been expected to live for
9 months.
Sec. 725.216 Determination of relationship; surviving divorced spouse.
An individual will be considered to be the surviving divorced
spouse of a deceased miner in a claim considered under this part or
reviewed under part 727 of this subchapter (see Sec. 725.4(d)), if such
individual's marriage to the miner had been terminated by a final
divorce on or after the 10th anniversary of the marriage unless, if
such individual was married to and divorced from the miner more than
once, such individual was married to such miner in each calendar year
of the period beginning 10 years immediately before the date on which
any divorce became final and ending with the year in which the divorce
became final.
Sec. 725.217 Determination of dependency; surviving divorced spouse.
An individual who is the miner's surviving divorced spouse (see
Sec. 725.216) shall be determined to have been dependent on the miner
if, for the month before the month in which the miner died:
(a) The individual was receiving at least one-half of his or her
support from the miner (see Sec. 725.233(g)); or
(b) The individual was receiving substantial contributions from the
miner pursuant to a written agreement (see Sec. 725.233(c) and (f)); or
(c) A court order required the miner to furnish substantial
contributions to the individual's support (see Sec. 725.233(c) and
(e)).
Sec. 725.218 Conditions of entitlement; child.
(a) An individual is entitled to benefits where he or she meets the
required standards of relationship and dependency under this subpart
(see Sec. 725.220 and Sec. 725.221) and is the child of a deceased
miner who:
(1) Was receiving benefits under section 415 or part C of title IV
of the Act as a result of a claim filed prior to January 1, 1982, or
(2) Is determined as a result of a claim filed prior to January 1,
1982, to have been totally disabled due to pneumoconiosis at the time
of death, or to have died due to pneumoconiosis. A surviving dependent
child of a miner whose claim is filed on or after January 1, 1982, must
establish that the miner's death was due to pneumoconiosis in order to
establish entitlement to benefits, except where entitlement is
established under Sec. 718.306 of this subchapter on a claim filed
prior to June 30, 1982.
(b) A child is not entitled to benefits for any month for which a
miner, or the surviving spouse or surviving divorced spouse of a miner,
establishes entitlement to benefits.
Sec. 725.219 Duration of entitlement; child.
(a) An individual is entitled to benefits as a child for each month
beginning with the first month in which all of the conditions of
entitlement prescribed in Sec. 725.218 are satisfied.
(b) The last month for which such individual is entitled to such
benefits is the month before the month in which any one of the
following events first occurs:
(1) The child dies;
(2) The child marries;
(3) The child attains age 18; and
(i) Is not a student (as defined in Sec. 725.209(b)) during any
part of the month in which the child attains age 18; and
(ii) Is not under a disability (as defined in
Sec. 725.209(a)(2)(ii)) at that time;
(4) If the child's entitlement beyond age 18 is based on his or her
status as a student, the earlier of:
(i) The first month during no part of which the child is a student;
or
(ii) The month in which the child attains age 23 and is not under a
disability (as defined in Sec. 725.209(a)(2)(ii)) at that time;
(5) If the child's entitlement beyond age 18 is based on
disability, the first month in no part of which such individual is
under a disability.
(c) A child whose entitlement to benefits terminated with the month
before the month in which the child attained age 18, or later, may
thereafter (provided such individual is not married) again become
entitled to such benefits upon filing application for such
reentitlement, beginning with the first month after termination of
benefits in which such individual is a student and has not attained the
age of 23.
Sec. 725.220 Determination of relationship; child.
For purposes of determining whether an individual may qualify for
benefits as the child of a deceased miner, the provisions of
Sec. 725.208 shall be applicable. As used in this section, the term
``beneficiary'' means only a surviving spouse entitled to benefits at
the time of such surviving spouse's death (see Sec. 725.212), or a
miner. For purposes of a survivor's claim, an individual will be
considered to be a child of a beneficiary if:
(a) The courts of the State in which such beneficiary is domiciled
(see Sec. 725.231) would find, under the law they would apply in
determining the devolution of the beneficiary's intestate personal
property, that the individual is the beneficiary's child; or
(b) Such individual is the legally adopted child of such
beneficiary; or
(c) Such individual is the stepchild of such beneficiary by reason
of a valid marriage of such individual's parent or adopting parent to
such beneficiary; or
(d) Such individual does not bear the relationship of child to such
beneficiary under paragraph (a), (b), or (c) of this section, but
would, under State law, have the same right as a child to share in the
beneficiary's intestate personal property; or
(e) Such individual is the natural son or daughter of a beneficiary
but does not bear the relationship of child to such beneficiary under
paragraph (a), (b), or (c) of this section, and is not considered to be
the child of the beneficiary under paragraph (d) of this section, such
individual shall nevertheless be considered to be the child of such
beneficiary if the beneficiary and the mother or father, as the case
may be, of such individual went through a marriage ceremony resulting
in a purported marriage between them which but for a legal impediment
(see Sec. 725.230) would have been a valid marriage; or
(f) Such individual is the natural son or daughter of a beneficiary
but does not have the relationship of child to such beneficiary under
paragraph (a), (b), or
[[Page 55029]]
(c) of this section, and is not considered to be the child of the
beneficiary under paragraph (d) or (e) of this section, such individual
shall nevertheless be considered to be the child of such beneficiary
if:
(1) Such beneficiary, prior to his or her entitlement to benefits,
has acknowledged in writing that the individual is his or her son or
daughter, or has been decreed by a court to be the father or mother of
the individual, or has been ordered by a court to contribute to the
support of the individual (see Sec. 725.233(a)) because the individual
is a son or daughter; or
(2) Such beneficiary is shown by satisfactory evidence to be the
father or mother of the individual and was living with or contributing
to the support of the individual at the time such beneficiary became
entitled to benefits.
Sec. 725.221 Determination of dependency; child.
For the purposes of determining whether a child was dependent upon
a deceased miner, the provisions of Sec. 725.209 shall be applicable,
except that for purposes of determining the eligibility of a child who
is under a disability as defined in section 223(d) of the Social
Security Act, such disability must have begun before the child attained
age 22, or in the case of a student, before the child ceased to be a
student.
Sec. 725.222 Conditions of entitlement; parent, brother, or sister.
(a) An individual is eligible for benefits as a surviving parent,
brother or sister if all of the following requirements are met:
(1) The individual is the parent, brother, or sister of a deceased
miner;
(2) The individual was dependent on the miner at the pertinent
time;
(3) Proof of support is filed within 2 years after the miner's
death, unless the time is extended for good cause (Sec. 725.226);
(4) In the case of a brother or sister, such individual also:
(i) Is under 18 years of age; or
(ii) Is under a disability as defined in section 223(d) of the
Social Security Act, 42 U.S.C. 423(d), which began before such
individual attained age 22, or in the case of a student, before the
student ceased to be a student; or
(iii) Is a student (see Sec. 725.209(b)); or
(iv) Is under a disability as defined in section 223(d) of the
Social Security Act, 42 U.S.C. 423(d), at the time of the miner's
death;
(5) The deceased miner:
(i) Was entitled to benefits under section 415 or part C of title
IV of the Act as a result of a claim filed prior to January 1, 1982; or
(ii) Is determined as a result of a claim filed prior to January 1,
1982, to have been totally disabled due to pneumoconiosis at the time
of death or to have died due to pneumoconiosis. A surviving dependent
parent, brother or sister of a miner whose claim is filed on or after
January 1, 1982, must establish that the miner's death was due to
pneumoconiosis in order to establish entitlement to benefits, except
where entitlement is established under Sec. 718.306 of this subchapter
on a claim filed prior to June 30, 1982.
(b)(1) A parent is not entitled to benefits if the deceased miner
was survived by a spouse or child at the time of such miner's death.
(2) A brother or sister is not entitled to benefits if the deceased
miner was survived by a spouse, child, or parent at the time of such
miner's death.
Sec. 725.223 Duration of entitlement; parent, brother, or sister.
(a) A parent, sister, or brother is entitled to benefits beginning
with the month all the conditions of entitlement described Sec. 725.222
are met.
(b) The last month for which such parent is entitled to benefits is
the month in which the parent dies.
(c) The last month for which such brother or sister is entitled to
benefits is the month before the month in which any of the following
events first occurs:
(1) The individual dies;
(2)(i) The individual marries or remarries; or
(ii) If already married, the individual received support in any
amount from his or her spouse;
(3) The individual attains age 18; and
(i) Is not a student (as defined in Sec. 725.209(b)) during any
part of the month in which the individual attains age 18; and
(ii) is not under a disability (as defined in
Sec. 725.209(a)(2)(ii)) at that time;
(4) If the individual's entitlement beyond age 18 is based on his
or her status as a student, the earlier of:
(i) The first month during no part of which the individual is a
student; or
(ii) The month in which the individual attains age 23 and is not
under a disability (as defined in Sec. 725.209(a)(2)(ii)) at that time;
(5) If the individual's entitlement beyond age 18 is based on
disability, the first month in no part of which such individual is
under a disability.
Sec. 725.224 Determination of relationship; parent, brother, or
sister.
(a) An individual will be considered to be the parent, brother, or
sister of a miner if the courts of the State in which the miner was
domiciled (see Sec. 225.231) at the time of death would find, under the
law they would apply, that the individual is the miner's parent,
brother, or sister.
(b) Where, under State law, the individual is not the miner's
parent, brother, or sister, but would, under State law, have the same
status (i.e., right to share in the miner's intestate personal
property) as a parent, brother, or sister, the individual will be
considered to be the parent, brother, or sister as appropriate.
Sec. 725.225 Determination of dependency; parent, brother, or sister.
An individual who is the miner's parent, brother, or sister will be
determined to have been dependent on the miner if, during the 1-year
period immediately prior to the miner's death:
(a) The individual and the miner were living in the same household
(see Sec. 725.232); and
(b) The individual was totally dependent on the miner for support
(see Sec. 725.233(h)).
Sec. 725.226 ``Good cause'' for delayed filing of proof of support.
(a) What constitutes ``good cause.'' ``Good cause'' may be found
for failure to file timely proof of support where the parent, brother,
or sister establishes to the satisfaction of the Office that such
failure to file was due to:
(1) Circumstances beyond the individual's control, such as extended
illness, mental, or physical incapacity, or communication difficulties;
or
(2) Incorrect or incomplete information furnished the individual by
the Office; or
(3) Efforts by the individual to secure supporting evidence without
a realization that such evidence could be submitted after filing proof
of support.
(b) What does not constitute ``good cause.'' ``Good cause'' for
failure to file timely proof of support (see Sec. 725.222(a)(3)) does
not exist when there is evidence of record in the Office that the
individual was informed that he or she should file within the
prescribed period and he or she failed to do so deliberately or through
negligence.
Sec. 725.227 Time of determination of relationship and dependency of
survivors.
The determination as to whether an individual purporting to be an
entitled survivor of a miner or beneficiary was related to, or
dependent upon, the miner is made after such individual files a claim
for benefits as a survivor. Such determination is based on the facts
and circumstances with respect to a reasonable period of time ending
with
[[Page 55030]]
the miner's death. A prior determination that such individual was, or
was not, a dependent for the purposes of augmenting the miner's
benefits for a certain period, is not determinative of the issue of
whether the individual is a dependent survivor of such miner.
Sec. 725.228 Effect of conviction of felonious and intentional
homicide on entitlement to benefits.
An individual who has been convicted of the felonious and
intentional homicide of a miner or other beneficiary shall not be
entitled to receive any benefits payable because of the death of such
miner or other beneficiary, and such person shall be considered
nonexistent in determining the entitlement to benefits of other
individuals.
Terms Used in this Subpart
Sec. 725.229 Intestate personal property.
References in this subpart to the ``same right to share in the
intestate personal property'' of a deceased miner (or surviving spouse)
refer to the right of an individual to share in such distribution in
the individual's own right and not the right of representation.
Sec. 725.230 Legal impediment.
For purposes of this subpart, ``legal impediment'' means an
impediment resulting from the lack of dissolution of a previous
marriage or otherwise arising out of such previous marriage or its
dissolution or resulting from a defect in the procedure followed in
connection with the purported marriage ceremony--for example, the
solemnization of a marriage only through a religious ceremony in a
country which requires a civil ceremony for a valid marriage.
Sec. 725.231 Domicile.
(a) For purposes of this subpart, the term ``domicile'' means the
place of an individual's true, fixed, and permanent home.
(b) The domicile of a deceased miner or surviving spouse is
determined as of the time of death.
(c) If an individual was not domiciled in any State at the
pertinent time, the law of the District of Columbia is applied.
Sec. 725.232 Member of the same household--``living with,'' ``living
in the same household,'' and ``living in the miner's household,''
defined.
(a) Defined. (1) The term ``member of the same household'' as used
in section 402(a)(2) of the Act (with respect to a spouse); the term
``living with'' as used in section 402(e) of the Act (with respect to a
surviving spouse); and the term ``living in the same household'' as
used in this subpart, means that a husband and wife were customarily
living together as husband and wife in the same place.
(2) The term ``living in the miner's household'' as used in section
412(a)(5) of the Act (with respect to a parent, brother, or sister)
means that the miner and such parent, brother, or sister were sharing
the same residence.
(b) Temporary absence. The temporary absence from the same
residence of either the miner, or the miner's spouse, parent, brother,
or sister (as the case may be), does not preclude a finding that one
was ``living with'' the other, or that they were ``members of the same
household.'' The absence of one such individual from the residence in
which both had customarily lived shall, in the absence of evidence to
the contrary, be considered temporary:
(1) If such absence was due to service in the Armed Forces of the
United States; or
(2) If the period of absence from his or her residence did not
exceed 6 months and the absence was due to business or employment
reasons, or because of confinement in a penal institution or in a
hospital, nursing home, or other curative institution; or
(3) In any other case, if the evidence establishes that despite
such absence they nevertheless reasonably expected to resume physically
living together.
(c) Relevant period of time. (1) The determination as to whether a
surviving spouse had been ``living with'' the miner shall be based upon
the facts and circumstances as of the time of the death of the miner.
(2) The determination as to whether a spouse is a ``member of the
same household'' as the miner shall be based upon the facts and
circumstances with respect to the period or periods of time as to which
the issue of membership in the same household is material.
(3) The determination as to whether a parent, brother, or sister
was ``living in the miner's household'' shall take account of the 1-
year period immediately prior to the miner's death.
Sec. 725.233 Support and contributions.
(a) Support defined. The term ``support'' includes food, shelter,
clothing, ordinary medical expenses, and other ordinary and customary
items for the maintenance of the person supported.
(b) Contributions defined. The term ``contributions'' refers to
contributions actually provided by the contributor from such
individual's property, or the use thereof, or by the use of such
individual's own credit.
(c) Regular contributions and substantial contributions defined.
The terms ``regular contributions'' and ``substantial contributions''
mean contributions that are customary and sufficient to constitute a
material factor in the cost of the individual's support.
(d) Contributions and community property. When a spouse receives
and uses for his or her support income from services or property, and
such income, under applicable State law, is the community property of
the wife and her husband, no part of such income is a ``contribution''
by one spouse to the other's support regardless of the legal interest
of the donor. However, when a spouse receives and uses for support,
income from the services and the property of the other spouse and,
under applicable State law, such income is community property, all of
such income is considered to be a contribution by the donor to the
spouse's support.
(e) Court order for support defined. References to a support order
in this subpart means any court order, judgment, or decree of a court
of competent jurisdiction which requires regular contributions that are
a material factor in the cost of the individual's support and which is
in effect at the applicable time. If such contributions are required by
a court order, this condition is met whether or not the contributions
were actually made.
(f) Written agreement defined. The term ``written agreement'' in
the phrase ``substantial contributions pursuant to a written
agreement'', as used in this subpart means an agreement signed by the
miner providing for substantial contributions by the miner for the
individual's support. It must be in effect at the applicable time but
it need not be legally enforceable.
(g) One-half support defined. The term ``one-half support'' means
that the miner made regular contributions, in cash or in kind, to the
support of a divorced spouse at the specified time or for the specified
period, and that the amount of such contributions equalled or exceeded
one-half the total cost of such individual's support at such time or
during such period.
(h) Totally dependent for support defined. The term ``totally
dependent for support'' as used in Sec. 725.225(b) means that the miner
made regular contributions to the support of the miner's parents,
brother, or sister, as the case may be, and that the amount of such
contributions at least equalled the total cost of such individual's
support.
[[Page 55031]]
Subpart C--Filing of Claims
Sec. 725.301 Who may file a claim.
(a) Any person who believes he or she may be entitled to benefits
under the Act may file a claim in accordance with this subpart.
(b) A claimant who has attained the age of 18, is mentally
competent and physically able, may file a claim on his or her own
behalf.
(c) If a claimant is unable to file a claim on his or her behalf
because of a legal or physical impairment, the following rules shall
apply:
(1) A claimant between the ages of 16 and 18 years who is mentally
competent and not under the legal custody or care of another person, or
a committee or institution, may upon filing a statement to the effect,
file a claim on his or her own behalf. In any other case where the
claimant is under 18 years of age, only a person, or the manager or
principal officer of an institution having legal custody or care of the
claimant may file a claim on his or her behalf.
(2) If a claimant over 18 years of age has a legally appointed
guardian or committee, only the guardian or committee may file a claim
on his or her behalf.
(3) If a claimant over 18 years of age is mentally incompetent or
physically unable to file a claim and is under the care of another
person, or an institution, only the person, or the manager or principal
officer of the institution responsible for the care of the claimant,
may file a claim on his or her behalf.
(4) For good cause shown, the Office may accept a claim executed by
a person other than one described in paragraphs (c)(2) or (3) of this
section.
(d) Except as provided in Sec. 725.305, in order for a claim to be
considered, the claimant must be alive at the time the claim is filed.
Sec. 725.302 Evidence of authority to file a claim on behalf of
another.
A person filing a claim on behalf of a claimant shall submit
evidence of his or her authority to so act at the time of filing or at
a reasonable time thereafter in accordance with the following:
(a) A legally appointed guardian or committee shall provide the
Office with certification of appointment by a proper official of the
court.
(b) Any other person shall provide a statement describing his or
her relationship to the claimant, the extent to which he or she has
care of the claimant, or his or her position as an officer of the
institution of which the claimant is an inmate. The Office may, at any
time, require additional evidence to establish the authority of any
such person.
Sec. 725.303 Date and place of filing of claims.
(a)(1) Claims for benefits shall be delivered, mailed to, or
presented at, any of the various district offices of the Social
Security Administration, or any of the various offices of the
Department of Labor authorized to accept claims, or, in the case of a
claim filed by or on behalf of a claimant residing outside the United
States, mailed or presented to any office maintained by the Foreign
Service of the United States. A claim shall be considered filed on the
day it is received by the office in which it is first filed.
(2) A claim submitted to a Foreign Service Office or any other
agency or subdivision of the U.S. Government shall be forwarded to the
Office and considered filed as of the date it was received at the
Foreign Service Office or other governmental agency or unit.
(b) A claim submitted by mail shall be considered filed as of the
date of delivery unless a loss or impairment of benefit rights would
result, in which case a claim shall be considered filed as of the date
of its postmark. In the absence of a legible postmark, other evidence
may be used to establish the mailing date.
Sec. 725.304 Forms and initial processing.
(a) Claims shall be filed on forms prescribed and approved by the
Office. The district office at which the claim is filed will assist
claimants in completing their forms.
(b) If the place at which a claim is filed is an office of the
Social Security Administration, such office shall forward the completed
claim form to an office of the DCMWC, which is authorized to process
the claim.
Sec. 725.305 When a written statement is considered a claim.
(a) The filing of a statement signed by an individual indicating an
intention to claim benefits shall be considered to be the filing of a
claim for the purposes of this part under the following circumstances:
(1) The claimant or a proper person on his or her behalf (see
Sec. 725.301) executes and files a prescribed claim form with the
Office during the claimant's lifetime within the period specified in
paragraph (b) of this section.
(2) Where the claimant dies within the period specified in
paragraph (b) of this section without filing a prescribed claim form,
and a person acting on behalf of the deceased claimant's estate
executes and files a prescribed claim form within the period specified
in paragraph (c) of this section.
(b) Upon receipt of a written statement indicating an intention to
claim benefits, the Office shall notify the signer in writing that to
be considered the claim must be executed by the claimant or a proper
party on his or her behalf on the prescribed form and filed with the
Office within six months from the date of mailing of the notice.
(c) If before the notice specified in paragraph (b) of this section
is sent, or within six months after such notice is sent, the claimant
dies without having executed and filed a prescribed form, or without
having had one executed and filed in his or her behalf, the Office
shall upon receipt of notice of the claimant's death advise his or her
estate, or those living at his or her last known address, in writing
that for the claim to be considered, a prescribed claim form must be
executed and filed by a person authorized to do so on behalf of the
claimant's estate within six months of the date of the later notice.
(d) Claims based upon written statements indicating an intention to
claim benefits not perfected in accordance with this section shall not
be processed.
Sec. 725.306 Withdrawal of a claim.
(a) A claimant or an individual authorized to execute a claim on a
claimant's behalf or on behalf of claimant's estate under Sec. 725.305,
may withdraw a previously filed claim provided that:
(1) He or she files a written request with the appropriate
adjudication officer indicating the reasons for seeking withdrawal of
the claim;
(2) The appropriate adjudication officer approves the request for
withdrawal on the grounds that it is in the best interests of the
claimant or his or her estate, and;
(3) Any payments made to the claimant in accordance with
Sec. 725.522 are reimbursed.
(b) When a claim has been withdrawn under paragraph (a) of this
section, the claim will be considered not to have been filed.
Sec. 725.307 Cancellation of a request for withdrawal.
At any time prior to approval, a request for withdrawal may be
canceled by a written request of the claimant or a person authorized to
act on the claimant's behalf or on behalf of the claimant's estate.
Sec. 725.308 Time limits for filing claims.
(a) A claim for benefits filed under this part by, or on behalf of,
a miner shall be filed within three years after a medical determination
of total disability
[[Page 55032]]
due to pneumoconiosis which has been communicated to the miner or a
person responsible for the care of the miner, or within three years
after the date of enactment of the Black Lung Benefits Reform Act of
1977, whichever is later. There is no time limit on the filing of a
claim by the survivor of a miner.
(b) A miner who is receiving benefits under part B of title IV of
the Act and who is notified by HEW of the right to seek medical
benefits may file a claim for medical benefits under part C of title IV
of the Act and this part. The Secretary of Health, Education, and
Welfare is required to notify each miner receiving benefits under part
B of this right. Notwithstanding the provisions of paragraph (a) of
this section, a miner notified of his or her rights under this
paragraph may file a claim under this part on or before December 31,
1980. Any claim filed after that date shall be untimely unless the time
for filing has been enlarged for good cause shown.
(c) There shall be a rebuttable presumption that every claim for
benefits is timely filed. However, except as provided in paragraph (b)
of this section, the time limits in this section are mandatory and may
not be waived or tolled except upon a showing of extraordinary
circumstances.
Sec. 725.309 Additional claims; effect of a prior denial of benefits.
(a) A claimant whose claim for benefits was previously approved
under part B of title IV of the Act may file a claim for benefits under
this part as provided in Secs. 725.308(b) and 725.702.
(b) If a claimant files a claim under this part while another claim
filed by the claimant under this part is still pending, the later claim
shall be merged with the earlier claim for all purposes. For purposes
of this section, a claim shall be considered pending if it has not yet
been finally denied.
(c) If a claimant files a claim under this part within one year
after the effective date of a final order denying a claim previously
filed by the claimant under this part (see Sec. 725.502(a)(2)), the
later claim shall be considered a request for modification of the prior
denial and shall be processed and adjudicated under Sec. 725.310.
(d) If a claimant files a claim under this part more than one year
after the effective date of a final order denying a claim previously
filed by the claimant under this part (see Sec. 725.502(a)(2)), the
later claim shall be considered a subsequent claim for benefits. A
subsequent claim shall be processed and adjudicated in accordance with
the provisions of subparts E and F of this part, except that the claim
shall be denied unless the claimant demonstrates that one of the
applicable conditions of entitlement (see Secs. 725.202(d) (miner),
725.212 (spouse), 725.218 (child), and 725.222 (parent, brother, or
sister)) has changed since the date upon which the order denying the
prior claim became final. The applicability of this paragraph may be
waived by the operator or fund, as appropriate. The following
additional rules shall apply to the adjudication of a subsequent claim:
(1) Any evidence submitted in connection with any prior claim shall
be made a part of the record in the subsequent claim, provided that it
was not excluded in the adjudication of the prior claim.
(2) For purposes of this section, the applicable conditions of
entitlement shall be limited to those conditions upon which the prior
denial was based. For example, if the claim was denied solely on the
basis that the individual was not a miner, the subsequent claim must be
denied unless the individual worked as a miner following the prior
denial. Similarly, if the claim was denied because the miner did not
meet one or more of the eligibility criteria contained in part 718 of
this subchapter, the subsequent claim must be denied unless the miner
meets at least one of the criteria that he or she did not meet
previously.
(3) If the applicable condition(s) of entitlement relate to the
miner's physical condition, the subsequent claim may be approved only
if new evidence submitted in connection with the subsequent claim
establishes at least one applicable condition of entitlement. A
subsequent claim filed by a surviving spouse, child, parent, brother,
or sister shall be denied unless the applicable conditions of
entitlement in such claim include at least one condition unrelated to
the miner's physical condition at the time of his death.
(4) If the claimant demonstrates a change in one of the applicable
conditions of entitlement, no findings made in connection with the
prior claim, except those based on a party's failure to contest an
issue (see Sec. 725.463), shall be binding on any party in the
adjudication of the subsequent claim. However, any stipulation made by
any party in connection with the prior claim shall be binding on that
party in the adjudication of the subsequent claim.
(5) In any case in which a subsequent claim is awarded, no benefits
may be paid for any period prior to the date upon which the order
denying the prior claim became final.
(e) Notwithstanding any other provision of this part or part 727 of
this subchapter (see Sec. 725.4(d)), a person may exercise the right of
review provided in paragraph (c) of Sec. 727.103 at the same time such
person is pursuing an appeal of a previously denied part B claim under
the law as it existed prior to March 1, 1978. If the part B claim is
ultimately approved as a result of the appeal, the claimant must
immediately notify the Secretary of Labor and, where appropriate, the
coal mine operator, and all duplicate payments made under part C shall
be considered an overpayment and arrangements shall be made to insure
the repayment of such overpayments to the fund or an operator, as
appropriate.
(f) In any case involving more than one claim filed by the same
claimant, under no circumstances are duplicate benefits payable for
concurrent periods of eligibility. Any duplicate benefits paid shall be
subject to collection or offset under subpart H of this part.
Sec. 725.310 Modification of awards and denials.
(a) Upon his or her own initiative, or upon the request of any
party on grounds of a change in conditions or because of a mistake in a
determination of fact, the district director may, at any time before
one year from the date of the last payment of benefits, or at any time
before one year after the denial of a claim, reconsider the terms of an
award or denial of benefits.
(b) Modification proceedings shall be conducted in accordance with
the provisions of this part as appropriate, except that the claimant
and the operator, or group of operators or the fund, as appropriate,
shall each be entitled to submit no more than one additional chest X-
ray interpretation, one additional pulmonary function test, one
additional arterial blood gas study, and one additional medical report
in support of its affirmative case along with such rebuttal evidence
and additional statements as are authorized by paragraphs (a)(2)(ii)
and (a)(3)(ii) of Sec. 725.414. Modification proceedings shall not be
initiated before an administrative law judge or the Benefits Review
Board.
(c) At the conclusion of modification proceedings before the
district director, the district director may issue a proposed decision
and order (Sec. 725.418) or, if appropriate, deny the claim by reason
of abandonment (Sec. 725.409). In any case in which the district
director has initiated modification proceedings on his own initiative
to alter the terms of an award or denial of benefits issued by an
administrative law judge, the
[[Page 55033]]
district director shall, at the conclusion of modification proceedings,
forward the claim for a hearing (Sec. 725.421). In any case forwarded
for a hearing, the administrative law judge assigned to hear such case
shall consider whether any additional evidence submitted by the parties
demonstrates a change in condition and, regardless of whether the
parties have submitted new evidence, whether the evidence of record
demonstrates a mistake in a determination of fact.
(d) An order issued following the conclusion of modification
proceedings may terminate, continue, reinstate, increase or decrease
benefit payments or award benefits. Such order shall not affect any
benefits previously paid, except that an order increasing the amount of
benefits payable based on a finding of a mistake in a determination of
fact may be made effective on the date from which benefits were
determined payable by the terms of an earlier award. In the case of an
award which is decreased, no payment made in excess of the decreased
rate prior to the date upon which the party requested reconsideration
under paragraph (a) of this section shall be subject to collection or
offset under subpart H of this part, provided the claimant is without
fault as defined by Sec. 725.543. In the case of an award which is
decreased following the initiation of modification by the district
director, no payment made in excess of the decreased rate prior to the
date upon which the district director initiated modification
proceedings under paragraph (a) shall be subject to collection or
offset under subpart H of this part, provided the claimant is without
fault as defined by Sec. 725.543. In the case of an award which has
become final and is thereafter terminated, no payment made prior to the
date upon which the party requested reconsideration under paragraph (a)
shall be subject to collection or offset under subpart H of this part.
In the case of an award which has become final and is thereafter
terminated following the initiation of modification by the district
director, no payment made prior to the date upon which the district
director initiated modification proceedings under paragraph (a) shall
be subject to collection or offset under subpart H of this part.
Sec. 725.311 Communications with respect to claims; time computations.
(a) Unless otherwise specified by this part, all requests,
responses, notices, decisions, orders, or other communications required
or permitted by this part shall be in writing.
(b) If required by this part, any document, brief, or other
statement submitted in connection with the adjudication of a claim
under this part shall be sent to each party to the claim by the
submitting party. If proof of service is required with respect to any
communication, such proof of service shall be submitted to the
appropriate adjudication officer and filed as part of the claim record.
(c) In computing any period of time described in this part, by any
applicable statute, or by the order of any adjudication officer, the
day of the act or event from which the designated period of time begins
to run shall not be included. The last day of the period shall be
included unless it is a Saturday, Sunday, or legal holiday, in which
event the period extends until the next day which is not a Saturday,
Sunday, or legal holiday. ``Legal holiday'' includes New Year's Day,
Birthday of Martin Luther King, Jr., Washington's Birthday, Memorial
Day, Independence Day, Labor Day, Columbus Day, Veterans Day,
Thanksgiving Day, Christmas Day and any other day appointed as a
holiday by the President or the Congress of the United States.
(d) In any case in which a provision of this part requires a
document to be sent to a person or party by certified mail, and the
document is not sent by certified mail, but the person or party
actually received the document, the document shall be deemed to have
been sent in compliance with the provisions of this part. In such a
case, any time period which commences upon the service of the document
shall commence on the date the document was received.
Subpart D--Adjudication Officers; Parties and Representatives
Sec. 725.350 Who are the adjudication officers.
(a) General. The persons authorized by the Secretary of Labor to
accept evidence and decide claims on the basis of such evidence are
called ``adjudication officers.'' This section describes the status of
black lung claims adjudication officers.
(b) District Director. The district director is that official of
the DCMWC or his designee who is authorized to perform functions with
respect to the development, processing, and adjudication of claims in
accordance with this part.
(c) Administrative law judge. An administrative law judge is that
official appointed pursuant to 5 U.S.C. 3105 (or Public Law 94-504) who
is qualified to preside at hearings under 5 U.S.C. 557 and is empowered
by the Secretary to conduct formal hearings with respect to, and
adjudicate, claims in accordance with this part. A person appointed
under Public Law 94-504 shall not be considered an administrative law
judge for purposes of this part for any period after March 1, 1979.
Sec. 725.351 Powers of adjudication officers.
(a) District Director. The district director is authorized to:
(1) Make determinations with respect to claims as is provided in
this part;
(2) Conduct conferences and informal discovery proceedings as
provided in this part;
(3) Compel the production of documents by the issuance of a
subpoena;
(4) Prepare documents for the signature of parties;
(5) Issue appropriate orders as provided in this part; and
(6) Do all other things necessary to enable him or her to discharge
the duties of the office.
(b) Administrative Law Judge. An administrative law judge is
authorized to:
(1) Conduct formal hearings in accordance with the provisions of
this part;
(2) Administer oaths and examine witnesses;
(3) Compel the production of documents and appearance of witnesses
by the issuance of subpoenas;
(4) Issue decisions and orders with respect to claims as provided
in this part; and
(5) Do all other things necessary to enable him or her to discharge
the duties of the office.
(c) If any person in proceedings before an adjudication officer
disobeys or resists any lawful order or process, or misbehaves during a
hearing or so near the place thereof as to obstruct the same, or
neglects to produce, after having been ordered to do so, any pertinent
book, paper or document, or refuses to appear after having been
subpoenaed, or upon appearing refuses to take the oath as a witness, or
after having taken the oath refuses to be examined according to law,
the district director, or the administrative law judge responsible for
the adjudication of the claim, shall certify the facts to the Federal
district court having jurisdiction in the place in which he or she is
sitting (or to the U.S. District Court for the District of Columbia if
he or she is sitting in the District) which shall thereupon in a
summary manner hear the evidence as to the acts complained of, and, if
the evidence so warrants, punish such person in the same manner and to
the
[[Page 55034]]
same extent as for a contempt committed before the court, or commit
such person upon the same condition as if the doing of the forbidden
act had occurred with reference to the process or in the presence of
the court.
Sec. 725.352 Disqualification of adjudication officer.
(a) No adjudication officer shall conduct any proceedings in a
claim in which he or she is prejudiced or partial, or where he or she
has any interest in the matter pending for decision. A decision to
withdraw from the consideration of a claim shall be within the
discretion of the adjudication officer. If that adjudication officer
withdraws, another officer shall be designated by the Director or the
Chief Administrative Law Judge, as the case may be, to complete the
adjudication of the claim.
(b) No adjudication officer shall be permitted to appear or act as
a representative of a party under this part while such individual is
employed as an adjudication officer. No adjudication officer shall be
permitted at any time to appear or act as a representative in
connection with any case or claim in which he or she was personally
involved. No fee or reimbursement shall be awarded under this part to
an individual who acts in violation of this paragraph.
(c) No adjudication officer shall act in any claim involving a
party which employed such adjudication officer within one year before
the adjudication of such claim.
(d) Notwithstanding paragraph (a) of this section, no adjudication
officer shall be permitted to act in any claim involving a party who is
related to the adjudication officer by consanguinity or affinity within
the third degree as determined by the law of the place where such party
is domiciled. Any action taken by an adjudication officer in knowing
violation of this paragraph shall be void.
Sec. 725.360 Parties to proceedings.
(a) Except as provided in Sec. 725.361, no person other than the
Secretary of Labor and authorized personnel of the Department of Labor
shall participate at any stage in the adjudication of a claim for
benefits under this part, unless such person is determined by the
appropriate adjudication officer to qualify under the provisions of
this section as a party to the claim. The following persons shall be
parties:
(1) The claimant;
(2) A person other than a claimant, authorized to execute a claim
on such claimant's behalf under Sec. 725.301;
(3) Any coal mine operator notified under Sec. 725.407 of its
possible liability for the claim;
(4) Any insurance carrier of such operator; and
(5) The Director in all proceedings relating to a claim for
benefits under this part.
(b) A widow, child, parent, brother, or sister, or the
representative of a decedent's estate, who makes a showing in writing
that his or her rights with respect to benefits may be prejudiced by a
decision of an adjudication officer, may be made a party.
(c) Any coal mine operator or prior operator or insurance carrier
which has not been notified under Sec. 725.407 and which makes a
showing in writing that its rights may be prejudiced by a decision of
an adjudication officer may be made a party.
(d) Any other individual may be made a party if that individual's
rights with respect to benefits may be prejudiced by a decision to be
made.
Sec. 725.361 Party amicus curiae.
At the discretion of the Chief Administrative Law Judge or the
administrative law judge assigned to the case, a person or entity which
is not a party may be allowed to participate amicus curiae in a formal
hearing only as to an issue of law. A person may participate amicus
curiae in a formal hearing upon written request submitted with
supporting arguments prior to the hearing. If the request is granted,
the administrative law judge hearing the case will inform the party of
the extent to which participation will be permitted. The request may,
however, be denied summarily and without explanation.
Sec. 725.362 Representation of parties.
(a) Except for the Secretary of Labor, whose interests shall be
represented by the Solicitor of Labor or his or her designee, each of
the parties may appoint an individual to represent his or her interest
in any proceeding for determination of a claim under this part. Such
appointment shall be made in writing or on the record at the hearing.
An attorney qualified in accordance with Sec. 725.363(a) shall file a
written declaration that he or she is authorized to represent a party,
or declare his or her representation on the record at a formal hearing.
Any other person (see Sec. 725.363(b)) shall file a written notice of
appointment signed by the party or his or her legal guardian, or enter
his or her appearance on the record at a formal hearing if the party he
or she seeks to represent is present and consents to the
representation. Any written declaration or notice required by this
section shall include the OWCP number assigned by the Office and shall
be sent to the Office or, for representation at a formal hearing, to
the Chief Administrative Law Judge. In any case, such representative
must be qualified under Sec. 725.363. No authorization for
representation or agreement between a claimant and representative as to
the amount of a fee, filed with the Social Security Administration in
connection with a claim under part B of title IV of the Act, shall be
valid under this part. A claimant who has previously authorized a
person to represent him or her in connection with a claim originally
filed under part B of title IV may renew such authorization by filing a
statement to such effect with the Office or appropriate adjudication
officer.
(b) Any party may waive his or her right to be represented in the
adjudication of a claim. If an adjudication officer determines, after
an appropriate inquiry has been made, that a claimant who has been
informed of his or her right to representation does not wish to obtain
the services of a representative, such adjudication officer shall
proceed to consider the claim in accordance with this part, unless it
is apparent that the claimant is, for any reason, unable to continue
without the help of a representative. However, it shall not be
necessary for an adjudication officer to inquire as to the ability of a
claimant to proceed without representation in any adjudication taking
place without a hearing. The failure of a claimant to obtain
representation in an adjudication taking place without a hearing shall
be considered a waiver of the claimant's right to representation.
However, at any time during the processing or adjudication of a claim,
any claimant may revoke such waiver and obtain a representative.
Sec. 725.363 Qualification of representative.
(a) Attorney. Any attorney in good standing who is admitted to
practice before a court of a State, territory, district, or insular
possession, or before the Supreme Court of the United States or other
Federal court and is not, pursuant to any provision of law, prohibited
from acting as a representative, may be appointed as a representative.
(b) Other person. With the approval of the adjudication officer,
any other person may be appointed as a representative so long as that
person is not, pursuant to any provision of law, prohibited from acting
as a representative.
[[Page 55035]]
Sec. 725.364 Authority of representative.
A representative, appointed and qualified as provided in
Secs. 725.362 and 725.363, may make or give on behalf of the party he
or she represents, any request or notice relative to any proceeding
before an adjudication officer, including formal hearing and review,
except that such representative may not execute a claim for benefits,
unless he or she is a person designated in Sec. 725.301 as authorized
to execute a claim. A representative shall be entitled to present or
elicit evidence and make allegations as to facts and law in any
proceeding affecting the party represented and to obtain information
with respect to the claim of such party to the same extent as such
party. Notice given to any party of any administrative action,
determination, or decision, or request to any party for the production
of evidence shall be sent to the representative of such party and such
notice or request shall have the same force and effect as if it had
been sent to the party represented.
Sec. 725.365 Approval of representative's fees; lien against benefits.
No fee charged for representation services rendered to a claimant
with respect to any claim under this part shall be valid unless
approved under this subpart. No contract or prior agreement for a fee
shall be valid. In cases where the obligation to pay the attorney's fee
is upon the claimant, the amount of the fee awarded may be made a lien
upon the benefits due under an award and the adjudication officer shall
fix, in the award approving the fee, such lien and the manner of
payment of the fee. Any representative who is not an attorney may be
awarded a fee for services under this subpart, except that no lien may
be imposed with respect to such representative's fee.
Sec. 725.366 Fees for representatives.
(a) A representative seeking a fee for services performed on behalf
of a claimant shall make application therefor to the district director,
administrative law judge, or appropriate appellate tribunal, as the
case may be, before whom the services were performed. The application
shall be filed and served upon the claimant and all other parties
within the time limits allowed by the district director, administrative
law judge, or appropriate appellate tribunal. The application shall be
supported by a complete statement of the extent and character of the
necessary work done, and shall indicate the professional status (e.g.,
attorney, paralegal, law clerk, lay representative or clerical) of the
person performing such work, and the customary billing rate for each
such person. The application shall also include a listing of reasonable
unreimbursed expenses, including those for travel, incurred by the
representative or an employee of a representative in establishing the
claimant's case. Any fee requested under this paragraph shall also
contain a description of any fee requested, charged, or received for
services rendered to the claimant before any State or Federal court or
agency in connection with a related matter.
(b) Any fee approved under paragraph (a) of this section shall be
reasonably commensurate with the necessary work done and shall take
into account the quality of the representation, the qualifications of
the representative, the complexity of the legal issues involved, the
level of proceedings to which the claim was raised, the level at which
the representative entered the proceedings, and any other information
which may be relevant to the amount of fee requested. No fee approved
shall include payment for time spent in preparation of a fee
application. No fee shall be approved for work done on claims filed
between December 30, 1969, and June 30, 1973, under part B of title IV
of the Act, except for services rendered on behalf of the claimant in
regard to the review of the claim under section 435 of the Act and part
727 of this subchapter (see Sec. 725.4(d)).
(c) In awarding a fee, the appropriate adjudication officer shall
consider, and shall add to the fee, the amount of reasonable and
unreimbursed expenses incurred in establishing the claimant's case.
Reimbursement for travel expenses incurred by an attorney shall be
determined in accordance with the provisions of Sec. 725.459(a). No
reimbursement shall be permitted for expenses incurred in obtaining
medical or other evidence which has previously been submitted to the
Office in connection with the claim.
(d) Upon receipt of a request for approval of a fee, such request
shall be reviewed and evaluated by the appropriate adjudication officer
and a fee award issued. Any party may request reconsideration of a fee
awarded by the adjudication officer. A revised or modified fee award
may then be issued, if appropriate.
(e) Each request for reconsideration or review of a fee award shall
be in writing and shall contain supporting statements or information
pertinent to any increase or decrease requested. If a fee awarded by a
district director is disputed, such award shall be appealable directly
to the Benefits Review Board. In such a fee dispute case, the record
before the Board shall consist of the order of the district director
awarding or denying the fee, the application for a fee, any written
statement in opposition to the fee and the documentary evidence
contained in the file which verifies or refutes any item claimed in the
fee application.
Sec. 725.367 Payment of a claimant's attorney's fee by responsible
operator or fund.
(a) An attorney who represents a claimant in the successful
prosecution of a claim for benefits may be entitled to collect a
reasonable attorney's fee from the responsible operator that is
ultimately found liable for the payment of benefits, or, in a case in
which there is no operator who is liable for the payment of benefits,
from the fund. Generally, the operator or fund liable for the payment
of benefits shall be liable for the payment of the claimant's
attorney's fees where the operator or fund, as appropriate, took
action, or acquiesced in action, that created an adversarial
relationship between itself and the claimant. The fees payable under
this section shall include fees for reasonable and necessary services
performed prior to the creation of the adversarial relationship.
Circumstances in which a successful attorney's fees shall be payable by
the responsible operator or the fund include, but are not limited to,
the following:
(1) The responsible operator initially found to be liable for the
payment of benefits by the district director (see Sec. 725.410(a))
contests the claimant's eligibility for benefits, either by filing a
response pursuant to Sec. 725.411(b)(1), or, in a case in which the
district director issues an initial finding that the claimant is not
eligible for benefits, by failing to file a response. The operator that
is ultimately determined to be liable for benefits shall be liable for
an attorney's fee with respect to all reasonable services performed by
the claimant's attorney;
(2) There is no operator that may be held liable for the payment of
benefits, and the district director issues an initial finding that the
claimant is not eligible for benefits. The fund shall be liable for an
attorney's fee with respect to all reasonable services performed by the
claimant's attorney;
(3) The claimant submits a bill for medical treatment, and the
party liable for the payment of benefits declines to pay the bill on
the grounds that the treatment is unreasonable, or is for a condition
that is not compensable. The responsible operator or fund, as
appropriate, shall be liable for an attorney's fee with respect to all
reasonable services performed by the claimant's attorney;
[[Page 55036]]
(4) A beneficiary seeks an increase in the amount of benefits
payable, and the responsible operator or fund issues a notice of
controversion contesting the claimant's right to that increase. If the
beneficiary is successful in securing an increase in the amount of
benefits payable, the operator or fund shall be liable for an
attorney's fee with respect to all reasonable services performed by the
beneficiary's attorney;
(5) The responsible operator or fund seeks a decrease in the amount
of benefits payable. If the beneficiary is successful in resisting the
request for a decrease in the amount of benefits payable, the operator
or fund shall be liable for an attorney's fee with respect to all
reasonable services performed by the beneficiary's attorney. A request
for information clarifying the amount of benefits payable shall not be
considered a request to decrease that amount.
(b) Any fee awarded under this section shall be in addition to the
award of benefits, and shall be awarded, in an order, by the district
director, administrative law judge, Board or court, before whom the
work was performed. The operator or fund shall pay such fee promptly
and directly to the claimant's attorney in a lump sum after the award
of benefits becomes final.
(c) Section 205(a) of the Black Lung Benefits Amendments of 1981,
Public Law 97-119, amended section 422 of the Act and relieved
operators and carriers from liability for the payment of benefits on
certain claims. Payment of benefits on those claims was made the
responsibility of the fund. The claims subject to this transfer of
liability are described in Sec. 725.496. On claims subject to the
transfer of liability described in this paragraph the fund will pay all
fees and costs which have been or will be awarded to claimant's
attorneys which were or would have become the liability of an operator
or carrier but for the enactment of the 1981 Amendments and which have
not already been paid by such operator or carrier. Section 9501(d)(7)
of the Internal Revenue Code (26 U.S.C.), which was also enacted as a
part of the 1981 Amendments to the Act, expressly prohibits the fund
from reimbursing an operator or carrier for any attorney fees or costs
which it has paid on cases subject to the transfer of liability
provisions.
Subpart E--Adjudication of Claims by the District Director
Sec. 725.401 Claims development--general.
After a claim has been received by the district director, the
district director shall take such action as is necessary to develop,
process, and make determinations with respect to the claim as provided
in this subpart.
Sec. 725.402 Approved State workers' compensation law.
If a district director determines that any claim filed under this
part is one subject to adjudication under a workers' compensation law
approved under part 722 of this subchapter, he or she shall advise the
claimant of this determination and of the Act's requirement that the
claim must be filed under the applicable State workers' compensation
law. The district director shall then prepare a proposed decision and
order dismissing the claim for lack of jurisdiction pursuant to
Sec. 725.418 and proceed as appropriate.
Sec. 725.403 [Reserved]
Sec. 725.404 Development of evidence--general.
(a) Employment history. Each claimant shall furnish the district
director with a complete and detailed history of the coal miner's
employment and, upon request, supporting documentation.
(b) Matters of record. Where it is necessary to obtain proof of
age, marriage or termination of marriage, death, family relationship,
dependency (see subpart B of this part), or any other fact which may be
proven as a matter of public record, the claimant shall furnish such
proof to the district director upon request.
(c) Documentary evidence. If a claimant is required to submit
documents to the district director, the claimant shall submit either
the original, a certified copy or a clear readable copy thereof. The
district director or administrative law judge may require the
submission of an original document or certified copy thereof, if
necessary.
(d) Submission of insufficient evidence. In the event a claimant
submits insufficient evidence regarding any matter, the district
director shall inform the claimant of what further evidence is
necessary and request that such evidence be submitted within a
specified reasonable time which may, upon request, be extended for good
cause.
Sec. 725.405 Development of medical evidence; scheduling of medical
examinations and tests.
(a) Upon receipt of a claim, the district director shall ascertain
whether the claim was filed by or on account of a miner as defined in
Sec. 725.202, and in the case of a claim filed on account of a deceased
miner, whether the claim was filed by an eligible survivor of such
miner as defined in subpart B of this part.
(b) In the case of a claim filed by or on behalf of a miner, the
district director shall, where necessary, schedule the miner for a
medical examination and testing under Sec. 725.406.
(c) In the case of a claim filed by or on behalf of a survivor of a
miner, the district director shall obtain whatever medical evidence is
necessary and available for the development and evaluation of the
claim.
(d) The district director shall, where appropriate, collect other
evidence necessary to establish:
(1) The nature and duration of the miner's employment; and
(2) All other matters relevant to the determination of the claim.
(e) If at any time during the processing of the claim by the
district director, the evidence establishes that the claimant is not
entitled to benefits under the Act, the district director may terminate
evidentiary development of the claim and proceed as appropriate.
Sec. 725.406 Medical examinations and tests.
(a) The Act requires the Department to provide each miner who
applies for benefits with the opportunity to undergo a complete
pulmonary evaluation at no expense to the miner. A complete pulmonary
evaluation includes a report of physical examination, a pulmonary
function study, a chest roentgenogram and, unless medically
contraindicated, a blood gas study.
(b) As soon as possible after a miner files an application for
benefits, the district director will provide the miner with a list of
medical facilities and physicians in the state of the miner's residence
and states contiguous to the state of the miner's residence that the
Office has authorized to perform complete pulmonary evaluations. The
miner shall select one of the facilities or physicians on the list, and
the district director will make arrangements for the miner to be given
a complete pulmonary evaluation by that facility or physician. The
results of the complete pulmonary evaluation shall not be counted as
evidence submitted by the miner under Sec. 725.414.
(c) If any medical examination or test conducted under paragraph
(a) of this section is not administered or reported in substantial
compliance with the provisions of part 718 of this subchapter, or does
not provide sufficient information to allow the district director to
decide whether the miner is eligible for benefits, the district
[[Page 55037]]
director shall schedule the miner for further examination and testing.
Where the deficiencies in the report are the result of a lack of effort
on the part of the miner, the miner will be afforded one additional
opportunity to produce a satisfactory result. In order to determine
whether any medical examination or test was administered and reported
in substantial compliance with the provisions of part 718 of this
subchapter, the district director may have any component of such
examination or test reviewed by a physician selected by the district
director.
(d) After the physician completes the report authorized by
paragraph (a), the district director will inform the miner that he may
elect to have the results of the objective testing sent to his treating
physician for use in preparing a medical opinion. The district director
will also inform the claimant that any medical opinion submitted by his
treating physician will count as one of the two medical opinions that
the miner may submit under Sec. 725.414.
(e) If, at any time after the completion of the initial complete
pulmonary evaluation, the district director believes that unresolved
medical questions remain, he may require the claimant to be examined by
a physician or medical facility selected by the district director from
the list of physicians and facilities authorized to perform complete
pulmonary evaluations. If additional medical evidence is obtained in
accordance with this paragraph, the district director may order the
physician selected to retest or reexamine the miner to do so without
the presence or participation of any other physician who previously
examined the miner, and without benefit of the conclusions of any other
physician who has examined the miner. Any evidence obtained under this
paragraph shall be considered a part of the complete pulmonary
evaluation obtained under paragraph (b) of this section for purposes of
the limitations established in Sec. 725.414, except that any additional
chest X-ray, pulmonary function test, or blood gas study performed in
connection with a request for re-examination under this paragraph shall
be substituted for the chest X-ray, pulmonary function test, or blood
gas study performed in connection with the original evaluation.
(f) The cost of any medical examination or test authorized under
this section, including the cost of travel to and from the examination,
shall be paid by the fund. No reimbursement for overnight
accommodations shall be authorized unless the district director
determines that an adequate testing facility is unavailable within one
day's round trip travel by automobile from the miner's residence. The
fund shall be reimbursed for such payments by an operator, if any,
found liable for the payment of benefits to the claimant. If an
operator fails to repay such expenses, with interest, upon request of
the Office, the entire amount may be collected in an action brought
under section 424 of the Act and Sec. 725.603.
Sec. 725.407 Identification and notification of responsible operator.
(a) Upon receipt of the miner's employment history, the district
director shall investigate whether any operator may be held liable for
the payment of benefits as a responsible operator in accordance with
the criteria contained in subpart G of this part.
(b) Prior to issuing an initial finding pursuant to Sec. 725.410,
the district director may identify one or more operators potentially
liable for the payment of benefits in accordance with the criteria set
forth in Sec. 725.495. The district director shall notify each such
operator of the existence of the claim. Where the records maintained by
the Office pursuant to part 726 of this subchapter indicate that the
operator had obtained a policy of insurance, and the claim falls within
such policy, the notice provided pursuant to this section shall also be
sent to the operator's carrier. Any operator or carrier notified of the
claim shall thereafter be considered a party to the claim in accordance
with Sec. 725.360 unless it is dismissed by an adjudication officer and
is not thereafter notified again of its potential liability.
(c) The notification issued pursuant to this section shall include
a copy of the claimant's application and a copy of all evidence
obtained by the district director relating to the miner's employment.
The district director may request the operator to answer specific
questions, including, but not limited to, questions related to the
nature of its operations, its relationship with the miner, its
financial status, including any insurance obtained to secure its
obligations under the Act, and its relationship with other potentially
liable operators. A copy of any notification issued pursuant to this
section shall be sent to the claimant by regular mail.
(d) If at any time before a case is referred to the Office of
Administrative Law Judges, the district director determines that an
operator which may be liable for the payment of benefits has not been
notified under this section or has been incorrectly dismissed pursuant
to Sec. 725.413(c)(1), the district director shall give such operator
notice of its potential liability in accordance with this section. The
adjudication officer shall then take such further action on the claim
as may be appropriate. There shall be no time limit applicable to a
later identification of an operator under this paragraph if the
operator fraudulently concealed its identity as an employer of the
miner. The district director may not notify additional operators of
their potential liability after a case has been referred to the Office
of Administrative Law Judges, unless the case was referred for a
hearing to determine whether the claim was properly denied as abandoned
pursuant to Sec. 725.409.
Sec. 725.408 Operator's response to notification.
(a)(1) An operator which receives notification under Sec. 725.407
shall, within 30 days of receipt, file a response, and shall indicate
its intent to accept or contest its identification as a potentially
liable operator. The operator's response shall also be sent to the
claimant by regular mail.
(2) If the operator contests its identification, it shall, on a
form supplied by the district director, state the precise nature of its
disagreement by admitting or denying each of the following assertions.
In answering these assertions, the term ``operator'' shall include any
operator for which the identified operator may be considered a
successor operator pursuant to Sec. 725.492.
(i) That the named operator was an operator for any period after
June 30, 1973;
(ii) That the operator employed the miner as a miner for a
cumulative period of not less than one year;
(iii) That the miner was exposed to coal mine dust while working
for the operator;
(iv) That the miner's employment with the operator included at
least one working day after December 31, 1969; and
(v) That the operator is capable of assuming liability for the
payment of benefits.
(3) An operator which receives notification under Sec. 725.407, and
which fails to file a response within the time limit provided by this
section, shall not be allowed to contest its liability for the payment
of benefits on the grounds set forth in paragraph (a)(2) of this
section.
(b)(1) Within 90 days of the date on which it receives notification
under Sec. 725.407, an operator may submit documentary evidence in
support of its position.
[[Page 55038]]
(2) No documentary evidence relevant to the grounds set forth in
paragraph (a)(2) may be admitted in any further proceedings unless it
is submitted within the time limits set forth in this section.
Sec. 725.409 Denial of a claim by reason of abandonment.
(a) A claim may be denied at any time by the district director by
reason of abandonment where the claimant fails:
(1) To undergo a required medical examination without good cause;
or,
(2) To submit evidence sufficient to make a determination of the
claim; or,
(3) To pursue the claim with reasonable diligence; or,
(4) To attend an informal conference without good cause.
(b)(1) If the district director determines that a denial by reason
of abandonment under paragraphs (a)(1) through (3) of this section is
appropriate, he or she shall notify the claimant of the reasons for
such denial and of the action which must be taken to avoid a denial by
reason of abandonment. If the claimant completes the action requested
within the time allowed, the claim shall be developed, processed and
adjudicated as specified in this part. If the claimant does not fully
comply with the action requested by the district director, the district
director shall notify the claimant that the claim has been denied by
reason of abandonment. Any request for a hearing prior to the issuance
of such notification shall be considered invalid and of no effect. Such
notification shall be served on the claimant and all other parties to
the claim by certified mail.
(2) In any case in which a claimant has failed to attend an
informal conference and has not provided the district director with his
reasons for failing to attend, the district director shall ask the
claimant to explain his absence. In considering whether the claimant
had good cause for his failure to attend the conference, the district
director shall consider all relevant circumstances, including the age,
education, and health of the claimant, as well as the distance between
the claimant's residence and the location of the conference. If the
district director concludes that the claimant had good cause for
failing to attend the conference, he may continue processing the claim,
including, where appropriate under Sec. 725.416, the scheduling of an
informal conference. If the claimant does not supply the district
director with his reasons for failing to attend the conference within
30 days of the date of the district director's request, or the district
director concludes that the reasons supplied by the claimant do not
establish good cause, the district director shall notify the claimant
that the claim has been denied by reason of abandonment. Any request
for a hearing prior to the issuance of such notification shall be
considered invalid and of no effect. Such notification shall be served
on the claimant and all other parties to the claim by certified mail.
(c) The denial of a claim by reason of abandonment shall become
effective and final unless, within 30 days after the denial is issued,
the claimant requests a hearing. Following the expiration of the 30-day
period, a new claim may be filed at any time pursuant to Sec. 725.309.
If the claimant timely requests a hearing, the district director shall
refer the case to the Office of Administrative Law Judges in accordance
with Sec. 725.421. The hearing will be limited to the issue of whether
the claim was properly denied by reason of abandonment. If the
administrative law judge determines that the claim was not properly
denied by reason of abandonment, he shall remand the claim to the
district director for the completion of administrative processing.
Sec. 725.410 Initial findings by the district director.
(a) Based upon the evidence developed, the district director shall
make an initial finding with respect to the claim. The initial finding
shall include a determination with respect to the claimant's
eligibility and a determination with respect to whether any of the
operators notified of potential liability under Sec. 725.407 of this
part is the responsible operator in accordance with Sec. 725.495.
(b) The district director shall serve the initial finding, together
with a copy of all of the evidence developed, on the claimant, the
responsible operator, and all other operators which received
notification pursuant to Sec. 725.407. The initial finding shall be
served on each party by certified mail.
(c) If the evidence submitted does not support a finding of
eligibility, the initial finding shall specify the reasons why the
claim cannot be approved and the additional evidence necessary to
establish entitlement. The initial finding shall notify the claimant
that he has the right to obtain further adjudication of his eligibility
in accordance with this subpart, that he has the right to submit
additional evidence in accordance with this subpart, and that he has
the right to obtain counsel, under the terms set forth in subpart D of
this part, in order to assist him. The initial finding shall further
notify the claimant that, if he establishes his entitlement to
benefits, the cost of obtaining additional evidence, along with a
reasonable attorney's fee, shall be reimbursed by the responsible
operator, or, if no operator can be held liable, the fund.
Sec. 725.411 Initial finding--eligibility.
(a) Claimant response.
(1) Finding that the claimant is not eligible for benefits.
(i) Within one year after the district director issues an initial
finding that the claimant is not eligible for benefits, the claimant
may request further adjudication of the claim. Any statement filed
during the applicable time period demonstrating the claimant's
intention to pursue his or her claim shall be considered a request for
further adjudication in accordance with this section. The claimant may
not request a hearing at this point. Any request for a hearing prior to
the issuance of a proposed decision and order shall be considered
invalid and of no effect.
(ii) If the claimant does not request further adjudication of the
claim within the time limits set forth in this section, the claim shall
be deemed to have been denied, effective as of the date of the issuance
of the initial finding. Any submission by the claimant after the time
limits set forth in this section will be treated as an intent to file a
new claim for benefits in accordance with Sec. 725.305. Such a claim
may be approved only if it meets the conditions of Sec. 725.309.
(2) Finding that the claimant is eligible for benefits. If the
district director issues an initial finding that the evidence submitted
supports a finding of eligibility, the claimant may, within 30 days of
the issuance of the initial finding, request revision of any of the
terms of the initial finding. If the claimant does not file a timely
request pursuant to this paragraph, he shall be deemed to have accepted
the district director's initial finding.
(b) Operator response. (1) Within 30 days of the issuance of an
initial finding, the responsible operator initially found liable for
the payment of benefits shall file a response with regard to the
claimant's eligibility for benefits. The response shall specifically
indicate whether the operator agrees or disagrees with the initial
finding of eligibility. A response that the operator is not liable for
benefits shall not be sufficient to contest the claimant's eligibility
under this section. A response to the initial finding of eligibility
shall be filed regardless of whether the district director finds the
claimant eligible for benefits.
[[Page 55039]]
(2) If the operator initially found liable for the payment of
benefits does not file a timely response, it shall be deemed to have
accepted the district director's initial finding with respect to the
claimant's eligibility, and shall not, except as provided in
Sec. 725.463, be permitted to raise issues or present evidence with
respect to issues inconsistent with the initial findings in any further
proceeding conducted with respect to the claim.
Sec. 725.412 Initial finding-liability.
(a) Within 30 days of the issuance of an initial finding, the
responsible operator initially found liable for the payment of benefits
shall file a response with regard to its liability for benefits. The
response shall specifically indicate whether the operator agrees or
disagrees with the initial finding of liability. A response that the
operator is not liable for benefits under this section shall not be
sufficient to contest the claimant's eligibility. A response to the
initial finding of liability shall be filed regardless of whether or
not the district director finds the claimant eligible for benefits.
(b) If the responsible operator initially found liable for the
payment of benefits does not file a timely response, it shall be deemed
to have accepted the district director's initial finding with respect
to its liability, and to have waived its right to contest its liability
in any further proceeding conducted with respect to the claim.
Sec. 725.413 Initial adjudication by the district director.
(a) If the district director issues an initial finding that the
evidence submitted supports a finding of eligibility, and
(1) The responsible operator does not file a timely response under
either Sec. 725.411 or Sec. 725.412, or
(2) There is no operator responsible for the payment of benefits,
the district director shall, after considering any request filed by the
claimant pursuant to Sec. 725.411(a)(2), issue a proposed decision and
order in accordance with Sec. 725.418.
(b) If the district director issues an initial finding that the
evidence submitted does not support a finding of eligibility, and the
claimant does not file a timely response pursuant to Sec. 725.411, the
claim shall be considered to have been denied, effective as of the date
of the issuance of the initial finding. Any later submission by the
claimant will be treated as an intent to file a claim for benefits in
accordance with Sec. 725.305. Such a claim may be approved only if it
meets the conditions of Sec. 725.309.
(c)(1) In all other cases, the district director shall, following
the expiration of all applicable time periods for filing responses, or
the receipt of responses, notify all parties of any responses received
from the claimant and the responsible operator. The district director
may, in his discretion, dismiss as parties any of the operators
notified of their potential liability pursuant to Sec. 725.407. If the
district director thereafter determines that the participation of a
party dismissed pursuant to this section is required, he may once again
notify the operator in accordance with Sec. 725.407(d).
(2) The district director shall notify the parties of a schedule
for submitting documentary evidence. Such schedule shall allow the
parties not less than 60 days within which to submit evidence in
support of their contentions, and shall provide not less than an
additional 30 days within which the parties may respond to evidence
submitted by other parties. Any such evidence must meet the
requirements set forth in Sec. 725.414 in order to be admitted into the
record.
Sec. 725.414 Development of evidence.
(a) Medical evidence. (1) For purposes of this section, a medical
report shall consist of a physician's written assessment of the miner's
respiratory or pulmonary condition. A medical report may be prepared by
a physician who examined the miner and/or reviewed the available
admissible evidence. A physician's written assessment of a single
objective test, such as a chest X-ray or a pulmonary function test,
shall not be considered a medical report for purposes of this section.
(2)(i) The claimant shall be entitled to submit, in support of his
affirmative case, no more than two chest X-ray interpretations, the
results of no more than two pulmonary function tests, the results of no
more than two arterial blood gas studies, and no more than two medical
reports. Any chest X-ray interpretations, pulmonary function test
results, blood gas studies and physicians' opinions that appear in a
medical report must each be admissible under this paragraph or
paragraph (a)(4) of this section.
(ii) The claimant shall be entitled to submit, in rebuttal of the
case presented by the party or parties opposing entitlement, no more
than one physician's interpretation of each chest X-ray, pulmonary
function test, or arterial blood gas study submitted by any potentially
liable operator or the fund, as appropriate, under paragraph (a)(3)(i)
or (a)(3)(iii) of this section and by the Director pursuant to
Sec. 725.406. In any case in which the party opposing entitlement has
submitted the results of other testing pursuant to Sec. 718.107, the
claimant shall be entitled to submit one physician's assessment of each
piece of such evidence in rebuttal. In addition, where the responsible
operator or fund has submitted rebuttal evidence under paragraph
(a)(3)(ii) or (a)(3)(iii) of this section with respect to medical
testing submitted by the claimant, the claimant shall be entitled to
submit an additional statement from the physician who originally
interpreted the chest X-ray or administered the objective testing.
Where the rebuttal evidence tends to undermine the conclusion of a
physician who prepared a medical report submitted by the claimant, the
claimant shall be entitled to submit an additional statement from the
physician who prepared the medical report explaining his conclusion in
light of the rebuttal evidence.
(3) The Department intends that all parties to a claim, including
all operators notified of their potential liability under Sec. 725.407
that have not been dismissed, shall be bound by a final adjudication of
the claimant's eligibility. Accordingly, any operator notified of its
potential liability in accordance with Sec. 725.407 shall not be
entitled to require the claimant to re-adjudicate his eligibility in
the event the district director's initial finding with respect to the
responsible operator is determined to have been erroneous.
(i) The responsible operator and any other operators that remain
parties to the case shall collectively be entitled to obtain and
submit, in support of their affirmative case, no more than two chest X-
ray interpretations, the results of no more than two pulmonary function
tests, the results of no more than two arterial blood gas studies, and
no more than two medical reports. Any chest X-ray interpretations,
pulmonary function test results, blood gas studies and physicians'
opinions that appear in a medical report must each be admissible under
this paragraph or paragraph (a)(4) of this section. In obtaining such
evidence, neither the responsible operator, nor any other operator
permitted to submit evidence under paragraph (a)(3)(iv) of this
section, may require the miner to travel more than 100 miles from his
or her place of residence, or the distance traveled by the miner in
obtaining the complete pulmonary evaluation provided by Sec. 725.406,
whichever is greater, unless a trip of greater distance is authorized
in writing by the district director. If a miner unreasonably refuses--
(A) To provide the Office or a coal mine operator with a complete
statement of his or her medical history
[[Page 55040]]
and/or to authorize access to his or her medical records, or
(B) To submit to an evaluation or test requested by the district
director or a potentially liable operator, the miner's claim may be
denied by reason of abandonment (See Sec. 725.409).
(ii) The responsible operator and any other operators that remain
parties to the case shall be entitled to submit, in rebuttal of the
case presented by the claimant, no more than one physician's
interpretation of each chest X-ray, pulmonary function test, or
arterial blood gas study submitted by the claimant under paragraph
(a)(2)(i) of this section and by the Director pursuant to Sec. 725.406.
In any case in which the claimant has submitted the results of other
testing pursuant to Sec. 718.107, the responsible operator and other
operators that remain parties to the case shall collectively be
entitled to submit one physician's assessment of each piece of such
evidence in rebuttal. In addition, where the claimant has submitted
rebuttal evidence under paragraph (a)(2)(ii) of this section, the
responsible operator and other operators that remain parties to the
case shall collectively be entitled to submit an additional statement
from the physician who originally interpreted the chest X-ray or
administered the objective testing. Where the rebuttal evidence tends
to undermine the conclusion of a physician who prepared a medical
report submitted by the responsible operator, the responsible operator
shall be entitled to submit an additional statement from the physician
who prepared the medical report explaining his conclusion in light of
the rebuttal evidence.
(iii) In a case in which the district director has not identified
any potentially liable operators, the district director shall be
entitled to exercise the rights of a responsible operator under this
section, except that the evidence obtained in connection with the
complete pulmonary evaluation performed pursuant to Sec. 725.406 shall
be considered evidence obtained and submitted by the Director, OWCP,
for purposes of paragraph (a)(3)(i) of this section.
(iv) Except for the responsible operator, any operator notified of
its potential liability pursuant to Sec. 725.407, and which has not
been dismissed as a party by the district director, must request
permission of the adjudication officer to obtain and submit a medical
report or the results of any objective medical testing. Such permission
shall be granted only upon a showing that the responsible operator has
not undertaken a full development of the evidence, and that without
such permission, the potentially liable operator will be unable to
secure a full and fair litigation of the claimant's eligibility. In
granting such permission, the adjudication officer shall take such
action as is necessary to prevent the miner from undergoing unnecessary
testing, and shall ensure that the record contains, in support of the
operators' affirmative case, no more than two chest X-ray
interpretations, the results of no more than two pulmonary function
tests, the results of no more than two arterial blood gas studies, and
no more than two medical reports submitted by the operators opposing
the claimant's eligibility. The adjudication officer shall also ensure
that the record contains, in rebuttal of the affirmative case presented
by the claimant, no more than one physician's interpretation of each
chest X-ray, pulmonary function test, and arterial blood gas study
submitted by the claimant under paragraph (a)(2)(ii) of this section
and by the Director pursuant to Sec. 725.406.
(4) Notwithstanding the limitations in paragraphs (a)(2) and (a)(3)
of this section, any record of a miner's hospitalization for a
respiratory or pulmonary or related disease, medical treatment for a
respiratory or pulmonary or related disease, or a biopsy or autopsy may
be received into evidence.
(5) A copy of any documentary evidence submitted by a party must be
served on all other parties to the claim. If the claimant is not
represented by an attorney, the district director shall mail a copy of
all documentary evidence submitted by the claimant to all other parties
to the claim. Following the development and submission of affirmative
medical evidence, the parties may submit rebuttal evidence in
accordance with the schedule issued by the district director.
(6) The district director shall admit into the record all evidence
submitted in accordance with this section, and shall also admit the
results of any medical examination or test conducted pursuant to
Sec. 725.406.
(b) Evidence pertaining to liability. (1) Except as provided by
Sec. 725.408(b)(2), the potential responsible operator may submit
evidence to demonstrate that it is not the potentially liable operator
that most recently employed the claimant. Failure to submit such
evidence shall be deemed an acceptance of the district director's
initial finding of liability.
(2) Any other party may submit evidence regarding the liability of
the potential responsible operator or any other operator.
(3) A copy of any documentary evidence submitted under this
paragraph must be mailed to all other parties to the claim. Following
the submission of affirmative evidence, the parties may submit rebuttal
evidence in accordance with the schedule issued by the district
director.
(c) Testimony. A physician who prepared a medical report admitted
under this section may testify with respect to the claim at any formal
hearing conducted in accordance with subpart F of this part, or by
deposition. If a party has submitted fewer than two medical reports as
part of that party's affirmative case under this section, a physician
who did not prepare a medical report may testify in lieu of such a
medical report. The testimony of such a physician shall be considered a
medical report for purposes of the limitations provided by this
section. A party may offer the testimony of no more than two physicians
under the provisions of this section unless the adjudication officer
finds good cause under paragraph (b)(1) of Sec. 725.456. In accordance
with the schedule issued by the district director, all parties shall
notify the district director of the name and current address of any
potential witness whose testimony pertains to the liability of a
potentially liable operator or the responsible operator. Absent such
notice, the testimony of a witness relevant to the liability of a
potentially liable operator or the responsible operator shall not be
admitted in any hearing conducted with respect to the claim unless the
administrative law judge finds that the lack of notice should be
excused due to extraordinary circumstances.
(d) Except to the extent permitted by Sec. 725.456 and
Sec. 725.310(b), the limitations set forth in this section shall apply
to all proceedings conducted with respect to a claim, and no
documentary evidence pertaining to liability shall be admitted in any
further proceeding conducted with respect to a claim unless it is
submitted to the district director in accordance with this section.
(e) Any documentary evidence obtained by a party during the time a
claim is pending before a district director, which is withheld from the
district director or any other party to the claim, shall not be
admitted into the record in any later proceedings held with respect to
the claim in the absence of extraordinary circumstances, unless the
admission of such evidence is requested by the Director or such other
party.
Sec. 725.415 Action by the district director after development of
operator's evidence.
(a) At the end of the period permitted under Sec. 725.413(c)(2) for
the submission
[[Page 55041]]
of evidence, the district director shall review the claim on the basis
of all evidence submitted in accordance with Sec. 725.414.
(b) After review of all evidence submitted, the district director
may schedule a conference in accordance with Sec. 725.416, issue a
proposed decision and order in accordance with Sec. 725.418, or take
such other action as the district director considers appropriate.
Sec. 725.416 Conferences.
(a) At the conclusion of the period permitted by Sec. 725.413(c)(2)
for the submission of evidence, the district director may conduct an
informal conference in any claim where it appears that such conference
will assist in the voluntary resolution of any issue raised with
respect to the claim. The conference proceedings shall not be
stenographically reported and sworn testimony shall not be taken.
(b) The district director shall notify the parties of a definite
time and place for the conference. The notification shall set forth the
specific reasons why the district director believes that a conference
will assist in the voluntary resolution of any issue raised with
respect to the claim. No sanction may be imposed under paragraph (c) of
this section unless the record contains a notification that meets the
requirements of this section. The district director may in his or her
discretion, or on the motion of any party, cancel or reschedule a
conference, and allow any or all of the parties to participate by
telephone.
(c) The unexcused failure of any party to appear at an informal
conference shall be grounds for the imposition of sanctions. If the
claimant fails to appear, the district director may take such steps as
are authorized by Sec. 725.409(b)(2) to deny the claim by reason of
abandonment. If the responsible operator fails to appear, it shall be
deemed to have waived its right to contest its potential liability for
an award of benefits and, in the discretion of the district director,
its right to contest any issue related to the claimant's eligibility.
(d) Any representative of an operator, of an operator's insurance
carrier, or of a claimant, authorized to represent such party in
accordance with Sec. 725.362, shall be deemed to have sufficient
authority to stipulate facts or issues or agree to a final disposition
of the claim.
(e) Procedures to be followed at a conference shall be within the
discretion of the district director. In the case of a conference
involving an unrepresented claimant, the district director shall fully
inform the claimant of the consequences of any agreement the claimant
is asked to sign. If it is apparent that the unrepresented claimant
does not understand the nature or effect of the proceedings, the
district director shall not permit the execution of any stipulation or
agreement in the claim unless it is clear that the best interests of
the claimant are served thereby.
Sec. 725.417 Action at the conclusion of conference.
(a) At the conclusion of a conference, the district director shall
prepare a stipulation of contested and uncontested issues which shall
be signed by the parties and the district director. If a hearing is
conducted with respect to the claim, this stipulation shall be
submitted to the Office of Administrative Law Judges and placed in the
claim record.
(b) In any case, where appropriate, the district director may
permit a reasonable time for the submission of additional evidence
following a conference, provided that such evidence does not exceed the
limits set forth in Sec. 725.414.
(c) Within 20 days after the termination of all conference
proceedings, the district director shall prepare and send to the
parties by certified mail a memorandum of conference, on a form
prescribed by the Office, summarizing the conference and including the
following:
(1) Date, time and place of conference;
(2) Names, addresses, telephone numbers, and status (i.e.,
claimant, attorney, operator, carrier's representative, etc.);
(3) Issues discussed at conference;
(4) Additional material presented (i.e., medical reports,
employment reports, marriage certificates, birth certificates, etc.);
(5) Issues resolved at conference; and
(6) District director's recommendation.
(d) Each party shall, in writing, either accept or reject, in whole
or in part, the district director's recommendation, stating the reasons
for such rejection. If no reply is received within 30 days from the
date on which the recommendation was sent to parties, the
recommendation shall be deemed accepted.
Sec. 725.418 Proposed decision and order.
(a) After evaluating the parties' responses to the district
director's recommendation pursuant to Sec. 725.417, or, if no informal
conference is to be held, at the conclusion of the period permitted by
Sec. 725.413(c)(2) for the submission of evidence, the district
director shall issue a proposed decision and order. A proposed decision
and order is a document, issued by the district director after the
evidentiary development of the claim is completed and all contested
issues, if any, are joined, which purports to resolve a claim on the
basis of the evidence submitted to or obtained by the district
director. A proposed decision and order shall be considered a final
adjudication of a claim only as provided in Sec. 725.419. A proposed
decision and order may be issued by the district director in any claim
and at any time during the adjudication of a claim if:
(1) Issuance is authorized or required by this part; or,
(2) The district director determines that its issuance will
expedite the adjudication of the claim.
(b) A proposed decision and order shall contain findings of fact
and conclusions of law and an appropriate order shall be served on all
parties to the claim by certified mail.
Sec. 725.419 Response to proposed decision and order.
(a) Within 30 days after the date of issuance of a proposed
decision and order, any party may, in writing, request a revision of
the proposed decision and order or a hearing. If a hearing is
requested, the district director shall refer the claim to the Office of
Administrative Law Judges (see Sec. 725.421).
(b) Any response made by a party to a proposed decision and order
shall specify the findings and conclusions with which the responding
party disagrees, and shall be served on the district director and all
other parties to the claim.
(c) If a timely request for revision of a proposed decision and
order is made, the district director may amend the proposed decision
and order, as circumstances require, and serve the revised proposed
decision and order on all parties or take such other action as is
appropriate. If a revised proposed decision and order is issued, each
party to the claim shall have 30 days from the date of issuance of that
revised proposed decision and order within which to request a hearing.
(d) If no response to a proposed decision and order is sent to the
district director within the period described in paragraph (a) of this
section, or if no response to a revised proposed decision and order is
sent to the district director within the period described in paragraph
(c) of this section, the proposed decision and order shall become a
final decision and order, which is effective upon the expiration of the
applicable 30-day period. Once a
[[Page 55042]]
proposed decision and order or revised proposed decision and order
becomes final and effective, all rights to further proceedings with
respect to the claim shall be considered waived, except as provided in
Sec. 725.310.
Sec. 725.420 Initial determinations.
(a) Section 9501(d)(1)(A)(1) of the Internal Revenue Code (26
U.S.C.) provides that the Black Lung Disability Trust Fund shall begin
the payment of benefits on behalf of an operator in any case in which
the operator liable for such payments has not commenced payment of such
benefits within 30 days after the date of an initial determination of
eligibility by the Secretary. For claims filed on or after January 1,
1982, the payment of such interim benefits from the fund is limited to
benefits accruing after the date of such initial determination.
(b) Except as provided in Sec. 725.415, after the district director
has determined that a claimant is eligible for benefits, on the basis
of all evidence submitted by a claimant and operator, and has
determined that a hearing will be necessary to resolve the claim, the
district director shall in writing so inform the parties and direct the
operator to begin the payment of benefits to the claimant in accordance
with Sec. 725.522. The date on which this writing is sent to the
parties shall be considered the date of initial determination of the
claim.
(c) If a notified operator refuses to commence payment of a claim
within 30 days from the date on which an initial determination is made
under this section, benefits shall be paid by the fund to the claimant
in accordance with Sec. 725.522, and the operator shall be liable to
the fund, if such operator is determined liable for the claim, for all
benefits paid by the fund on behalf of such operator, and, in addition,
such penalties and interest as are appropriate.
Sec. 725.421 Referral of a claim to the Office of Administrative Law
Judges.
(a) In any claim for which a formal hearing is requested or
ordered, and with respect to which the district director has completed
development and adjudication without having resolved all contested
issues in the claim, the district director shall refer the claim to the
Office of Administrative Law Judges for a hearing.
(b) In any case referred to the Office of Administrative Law Judges
under this section, the district director shall transmit to that office
the following documents, which shall be placed in the record at the
hearing subject to the objection of any party:
(1) Copies of the claim form or forms;
(2) Any statement, document, or pleading submitted by a party to
the claim;
(3) A copy of the notification to an operator of its possible
liability for the claim;
(4) All evidence submitted to the district director under this
part;
(5) Any written stipulation of law or fact or stipulation of
contested and uncontested issues entered into by the parties;
(6) Any pertinent forms submitted to the district director;
(7) The statement by the district director of contested and
uncontested issues in the claim; and
(8) The district director's initial determination of eligibility or
other documents necessary to establish the right of the fund to
reimbursement, if appropriate. Copies of the transmittal notice shall
also be sent to all parties to the claim by regular mail.
(c) A party may at any time request and obtain from the district
director copies of documents transmitted to the Office of
Administrative Law Judges under paragraph (b) of this section. If the
party has previously been provided with such documents, additional
copies may be sent to the party upon the payment of a copying fee to be
determined by the district director.
Sec. 725.422 Legal assistance.
The Secretary or his or her designee may, upon request, provide a
claimant with legal assistance in processing a claim under the Act.
Such assistance may be made available to a claimant in the discretion
of the Solicitor of Labor or his or her designee at any time prior to
or during the time in which the claim is being adjudicated and shall be
furnished without charge to the claimant. Representation of a claimant
in adjudicatory proceedings shall not be provided by the Department of
Labor unless it is determined by the Solicitor of Labor that such
representation is in the best interests of the black lung benefits
program. In no event shall representation be provided to a claimant in
a claim with respect to which the claimant's interests are adverse to
those of the Secretary of Labor or the fund.
Sec. 725.423 Extensions of time.
Except for the one-year time limit set forth in
Sec. 725.411(a)(1)(i) and the 30-day time limit set forth in
Sec. 725.419, any of the time periods set forth in this subpart may be
extended, for good cause shown, by filing a request for an extension
with the district director prior to the expiration of the time period.
Subpart F--Hearings
Sec. 725.450 Right to a hearing.
Any party to a claim (see Sec. 725.360) shall have a right to a
hearing concerning any contested issue of fact or law unresolved by the
district director. There shall be no right to a hearing until the
processing and adjudication of the claim by the district director has
been completed. There shall be no right to a hearing in a claim with
respect to which a determination of the claim made by the district
director has become final and effective in accordance with this part.
Sec. 725.451 Request for hearing.
After the completion of proceedings before the district director,
or as is otherwise indicated in this part, any party may in writing
request a hearing on any contested issue of fact or law (see
Sec. 725.419). A district director may on his or her own initiative
refer a case for hearing. If a hearing is requested, or if a district
director determines that a hearing is necessary to the resolution of
any issue, the claim shall be referred to the Chief Administrative Law
Judge for a hearing under Sec. 725.421.
Sec. 725.452 Type of hearing; parties.
(a) A hearing held under this part shall be conducted by an
administrative law judge designated by the Chief Administrative Law
Judge. Except as otherwise provided by this part, all hearings shall be
conducted in accordance with the provisions of 5 U.S.C. 554 et seq.
(b) All parties to a claim shall be permitted to participate fully
at a hearing held in connection with such claim.
(c) A full evidentiary hearing need not be conducted if a party
moves for summary judgment and the administrative law judge determines
that there is no genuine issue as to any material fact and that the
moving party is entitled to the relief requested as a matter of law.
All parties shall be entitled to respond to the motion for summary
judgment prior to decision thereon.
(d) If the administrative law judge believes that an oral hearing
is not necessary (for any reason other than on motion for summary
judgment), the judge shall notify the parties by written order and
allow at least 30 days for the parties to respond. The administrative
law judge shall hold the oral hearing if any party makes a timely
request in response to the order.
Sec. 725.453 Notice of hearing.
All parties shall be given at least 30 days written notice of the
date and place
[[Page 55043]]
of a hearing and the issues to be resolved at the hearing. Such notice
shall be sent to each party or representative by certified mail.
Sec. 725.454 Time and place of hearing; transfer of cases.
(a) The Chief Administrative Law Judge shall assign a definite time
and place for a formal hearing, and shall, where possible, schedule the
hearing to be held at a place within 75 miles of the claimant's
residence unless an alternate location is requested by the claimant.
(b) If the claimant's residence is not in any State, the Chief
Administrative Law Judge may, in his or her discretion, schedule the
hearing in the country of the claimant's residence.
(c) The Chief Administrative Law Judge or the administrative law
judge assigned the case may in his or her discretion direct that a
hearing with respect to a claim shall begin at one location and then
later be reconvened at another date and place.
(d) The Chief Administrative Law Judge or administrative law judge
assigned the case may change the time and place for a hearing, either
on his or her own motion or for good cause shown by a party. The
administrative law judge may adjourn or postpone the hearing for good
cause shown, at any time prior to the mailing to the parties of the
decision in the case. Unless otherwise agreed, at least 10 days notice
shall be given to the parties of any change in the time or place of
hearing.
(e) The Chief Administrative Law Judge may for good cause shown
transfer a case from one administrative law judge to another.
Sec. 725.455 Hearing procedures; generally.
(a) General. The purpose of any hearing conducted under this
subpart shall be to resolve contested issues of fact or law. Except as
provided in Sec. 725.421(b)(8), any findings or determinations made
with respect to a claim by a district director shall not be considered
by the administrative law judge.
(b) Evidence. The administrative law judge shall at the hearing
inquire fully into all matters at issue, and shall not be bound by
common law or statutory rules of evidence, or by technical or formal
rules of procedure, except as provided by 5 U.S.C. 554 and this
subpart. The administrative law judge shall receive into evidence the
testimony of the witnesses and parties, the evidence submitted to the
Office of Administrative Law Judges by the district director under
Sec. 725.421, and such additional evidence as may be submitted in
accordance with the provisions of this subpart. The administrative law
judge may entertain the objections of any party to the evidence
submitted under this section.
(c) Procedure. The conduct of the hearing and the order in which
allegations and evidence shall be presented shall be within the
discretion of the administrative law judge and shall afford the parties
an opportunity for a fair hearing.
(d) Oral argument and written allegations. The parties, upon
request, may be allowed a reasonable time for the presentation of oral
argument at the hearing. Briefs or other written statements or
allegations as to facts or law may be filed by any party with the
permission of the administrative law judge. Copies of any brief or
other written statement shall be filed with the administrative law
judge and served on all parties by the submitting party.
Sec. 725.456 Introduction of documentary evidence.
(a) All documents transmitted to the Office of Administrative Law
Judges under Sec. 725.421 shall be placed into evidence by the
administrative law judge, subject to objection by any party.
(b)(1) Documentary evidence pertaining to the liability of a
potentially liable operator and/or the identification of a responsible
operator which was not submitted to the district director shall not be
admitted into the hearing record in the absence of extraordinary
circumstances. Medical evidence in excess of the limitations contained
in Sec. 725.414 shall not be admitted into the hearing record in the
absence of good cause.
(2) Subject to the limitations in paragraph (b)(1) of this section,
any other documentary material, including medical reports, which was
not submitted to the district director, may be received in evidence
subject to the objection of any party, if such evidence is sent to all
other parties at least 20 days before a hearing is held in connection
with the claim.
(3) Documentary evidence, which is not exchanged with the parties
in accordance with this paragraph, may be admitted at the hearing with
the written consent of the parties or on the record at the hearing, or
upon a showing of good cause why such evidence was not exchanged in
accordance with this paragraph. If documentary evidence is not
exchanged in accordance with paragraph (b)(2) of this section and the
parties do not waive the 20-day requirement or good cause is not shown,
the administrative law judge shall either exclude the late evidence
from the record or remand the claim to the district director for
consideration of such evidence.
(4) A medical report which is not made available to the parties in
accordance with paragraph (b)(2) of this section shall not be admitted
into evidence in any case unless the hearing record is kept open for at
least 30 days after the hearing to permit the parties to take such
action as each considers appropriate in response to such evidence. If,
in the opinion of the administrative law judge, evidence is withheld
from the parties for the purpose of delaying the adjudication of the
claim, the administrative law judge may exclude such evidence from the
hearing record and close the record at the conclusion of the hearing.
(c) Documentary evidence which is obtained by any party during the
time a claim is pending before the district director, and which is
withheld from the district director or any other party until the claim
is forwarded to the Office of Administrative Law Judges shall,
notwithstanding paragraph (b) of this section, not be admitted into the
hearing record in the absence of extraordinary circumstances, unless
such admission is requested by any opposing party (see
Sec. 725.414(e)).
(d) Subject to paragraph (b) of this section, documentary evidence
which the district director excludes from the record, and the
objections to such evidence, may be submitted by the parties to the
administrative law judge, who shall independently determine whether the
evidence shall be admitted.
(1) If the evidence is admitted, the administrative law judge may,
in his or her discretion, remand the claim to the district director for
further consideration.
(2) If the evidence is admitted, the administrative law judge shall
afford the opposing party or parties the opportunity to develop such
additional documentary evidence as is necessary to protect the right of
cross-examination.
(e) All medical records and reports submitted by any party shall be
considered by the administrative law judge in accordance with the
quality standards contained in part 718 of this subchapter.
(f) If the administrative law judge concludes that the complete
pulmonary evaluation provided pursuant to Sec. 725.406, or any part
thereof, fails to comply with the applicable quality standards, or
fails to address the relevant conditions of entitlement (see
Sec. 725.202(d)(2)(i) through (iv)) in a manner which permits
resolution of the claim, the administrative law judge shall, in his or
her discretion, remand the claim to the district director with
[[Page 55044]]
instructions to develop only such additional evidence as is required,
or allow the parties a reasonable time to obtain and submit such
evidence, before the termination of the hearing.
Sec. 725.457 Witnesses.
(a) Witnesses at the hearing shall testify under oath or
affirmation. The administrative law judge and the parties may question
witnesses with respect to any matters relevant and material to any
contested issue. Any party who intends to present the testimony of an
expert witness at a hearing shall so notify all other parties to the
claim at least 10 days before the hearing. The failure to give notice
of the appearance of an expert witness in accordance with this
paragraph, unless notice is waived by all parties, shall preclude the
presentation of testimony by such expert witness.
(b) No person shall be required to appear as a witness in any
proceeding before an administrative law judge at a place more than 100
miles from his or her place of residence, unless the lawful mileage and
witness fee for 1 day's attendance is paid in advance of the hearing
date.
(c) No person shall be permitted to testify as a witness at the
hearing, or pursuant to deposition or interrogatory under Sec. 725.458,
unless that person meets the requirements of Sec. 725.414(c).
(1) In the case of a witness offering testimony relevant to the
liability of a potentially liable operator and/or the identification of
the responsible operator, the witness must have been identified as a
potential hearing witness while the claim was pending before the
district director.
(2) In the case of a physician offering testimony relevant to the
physical condition of the miner, such physician must have prepared a
medical report. Alternatively, a physician may offer testimony relevant
to the physical condition of the miner only to the extent that the
party offering the physician's testimony has submitted fewer medical
reports than permitted by Sec. 725.414. Such physician's opinion shall
be considered a medical report subject to the limitations of
Sec. 725.414. This provision shall apply to any testimony by a
physician, whether at a formal hearing or a deposition, or by
interrogatories.
(d) A physician whose testimony is permitted under this section may
testify as to any other medical evidence of record, but shall not be
permitted to testify as to any medical evidence relevant to the miner's
condition that is not admissible.
Sec. 725.458 Depositions; interrogatories.
The testimony of any witness or party may be taken by deposition or
interrogatory according to the rules of practice of the Federal
district court for the judicial district in which the case is pending
(or of the U.S. District Court for the District of Columbia if the case
is pending in the District or outside the United States), except that
at least 30 days prior notice of any deposition shall be given to all
parties unless such notice is waived. No post-hearing deposition or
interrogatory shall be permitted unless authorized by the
administrative law judge upon the motion of a party to the claim. The
testimony of any physician which is taken by deposition shall be
subject to the limitations on the scope of the testimony contained in
Sec. 725.457(d).
Sec. 725.459 Witness fees.
(a) A witness testifying at a hearing before an administrative law
judge, or whose deposition is taken, shall receive the same fees and
mileage as witnesses in courts of the United States. If the witness is
an expert, he or she shall be entitled to an expert witness fee. Except
as provided in paragraphs (b) and (c) of this section, such fees shall
be paid by the proponent of the witness.
(b) If the witness' proponent does not intend to call the witness
to appear at a hearing or deposition, any other party may subpoena the
witness for cross-examination. The administrative law judge shall
authorize the least intrusive and expensive means of cross-examination
as he deems appropriate and necessary to the full and true disclosure
of facts. If such witness is required to attend the hearing, give a
deposition or respond to interrogatories for cross-examination
purposes, the proponent of the witness shall pay the witness' fee. If
the claimant is the proponent of the witness whose cross-examination is
sought, and demonstrates, within time limits established by the
administrative law judge, that he would be deprived of ordinary and
necessary living expenses if required to pay the witness fee and
mileage necessary to produce that witness for cross-examination, the
administrative law judge may apportion the costs of such cross-
examination among the parties to the case. The administrative law judge
may not apportion any costs against the fund in a case in which the
district director has designated a responsible operator, except that
the fund shall remain liable for any costs associated with the cross-
examination of the physician who performed the complete pulmonary
evaluation pursuant to Sec. 725.406.
(c) If a claimant is determined entitled to benefits, there may be
assessed as costs against a responsible operator, if any, or the fund,
fees and mileage for necessary witnesses attending the hearing at the
request of the claimant. Both the necessity for the witness and the
reasonableness of the fees of any expert witness shall be approved by
the administrative law judge. The amounts awarded against a responsible
operator or the fund as attorney's fees, or costs, fees and mileage for
witnesses, shall not in any respect affect or diminish benefits payable
under the Act.
(d) A claimant shall be considered to be deprived of funds required
for ordinary and necessary living expenses for purposes of paragraph
(b) of this section where payment of the projected fee and mileage
would meet the standards set forth at 20 CFR 404.508.
Sec. 725.460 Consolidated hearings.
When two or more hearings are to be held, and the same or
substantially similar evidence is relevant and material to the matters
at issue at each such hearing, the Chief Administrative Law Judge may,
upon motion by any party or on his or her own motion, order that a
consolidated hearing be conducted. Where consolidated hearings are
held, a single record of the proceedings shall be made and the evidence
introduced in one claim may be considered as introduced in the others,
and a separate or joint decision shall be made, as appropriate.
Sec. 725.461 Waiver of right to appear and present evidence.
(a) If all parties waive their right to appear before the
administrative law judge, it shall not be necessary for the
administrative law judge to give notice of, or conduct, an oral
hearing. A waiver of the right to appear shall be made in writing and
filed with the Chief Administrative Law Judge or the administrative law
judge assigned to hear the case. Such waiver may be withdrawn by a
party for good cause shown at any time prior to the mailing of the
decision in the claim. Even though all of the parties have filed a
waiver of the right to appear, the administrative law judge may,
nevertheless, after giving notice of the time and place, conduct a
hearing if he or she believes that the personal appearance and
testimony of the party or parties would assist in ascertaining the
facts in issue in the claim. Where a waiver has been filed by all
parties, and they do not appear before the administrative law judge
personally or by representative, the administrative law judge shall
make a record of the
[[Page 55045]]
relevant documentary evidence submitted in accordance with this part
and any further written stipulations of the parties. Such documents and
stipulations shall be considered the evidence of record in the case and
the decision shall be based upon such evidence.
(b) Except as provided in Sec. 725.456(a), the unexcused failure of
any party to attend a hearing shall constitute a waiver of such party's
right to present evidence at the hearing, and may result in a dismissal
of the claim (see Sec. 725.465).
Sec. 725.462 Withdrawal of controversion of issues set for formal
hearing; effect.
A party may, on the record, withdraw his or her controversion of
any or all issues set for hearing. If a party withdraws his or her
controversion of all issues, the administrative law judge shall remand
the case to the district director for the issuance of an appropriate
order.
Sec. 725.463 Issues to be resolved at hearing; new issues.
(a) Except as otherwise provided in this section, the hearing shall
be confined to those contested issues which have been identified by the
district director (see Sec. 725.421) or any other issue raised in
writing before the district director.
(b) An administrative law judge may consider a new issue only if
such issue was not reasonably ascertainable by the parties at the time
the claim was before the district director. Such new issue may be
raised upon application of any party, or upon an administrative law
judge's own motion, with notice to all parties, at any time after a
claim has been transmitted by the district director to the Office of
Administrative Law Judges and prior to decision by an administrative
law judge. If a new issue is raised, the administrative law judge may,
in his or her discretion, either remand the case to the district
director with instructions for further proceedings, hear and resolve
the new issue, or refuse to consider such new issue.
(c) If a new issue is to be considered by the administrative law
judge, a party may, upon request, be granted an appropriate
continuance.
Sec. 725.464 Record of hearing.
All hearings shall be open to the public and shall be mechanically
or stenographically reported. All evidence upon which the
administrative law judge relies for decision shall be contained in the
transcript of testimony, either directly or by appropriate reference.
All medical reports, exhibits, and any other pertinent document or
record, either in whole or in material part, introduced as evidence,
shall be marked for identification and incorporated into the record.
Sec. 725.465 Dismissals for cause.
(a) The administrative law judge may, at the request of any party,
or on his or her own motion, dismiss a claim:
(1) Upon the failure of the claimant or his or her representative
to attend a hearing without good cause;
(2) Upon the failure of the claimant to comply with a lawful order
of the administrative law judge; or
(3) Where there has been a prior final adjudication of the claim or
defense to the claim under the provisions of this subchapter and no new
evidence is submitted (except as provided in part 727 of this
subchapter; see Sec. 725.4(d)).
(b) A party who is not a proper party to the claim (see
Sec. 725.360) shall be dismissed by the administrative law judge. The
administrative law judge shall not dismiss any operator named as a
potentially liable operator pursuant to Sec. 725.407, except upon the
motion or written agreement of the Director.
(c) In any case where a dismissal of a claim, defense, or party is
sought, the administrative law judge shall issue an order to show cause
why the dismissal should not be granted and afford all parties a
reasonable time to respond to such order. After the time for response
has expired, the administrative law judge shall take such action as is
appropriate to rule on the dismissal, which may include an order
dismissing the claim, defense or party.
(d) No claim shall be dismissed in a case with respect to which
payments prior to final adjudication have been made to the claimant in
accordance with Sec. 725.522, except upon the motion or written
agreement of the Director.
Sec. 725.466 Order of dismissal.
(a) An order dismissing a claim shall be served on the parties in
accordance with Sec. 725.478. The dismissal of a claim shall have the
same effect as a decision and order disposing of the claim on its
merits, except as provided in paragraph (b) of this section. Such order
shall advise the parties of their right to request review by the
Benefits Review Board.
(b) Where the Chief Administrative Law Judge or the presiding
administrative law judge issues a decision and order dismissing the
claim after a show cause proceeding, the district director shall
terminate any payments being made to the claimant under Sec. 725.522,
and the order of dismissal shall, if appropriate, order the claimant to
reimburse the fund for all benefits paid to the claimant.
Sec. 725.475 Termination of hearings.
Hearings are officially terminated when all the evidence has been
received, witnesses heard, pleadings and briefs submitted to the
administrative law judge, and the transcript of the proceedings has
been printed and delivered to the administrative law judge.
Sec. 725.476 Issuance of decision and order.
Within 20 days after the official termination of the hearing (see
Sec. 725.475), the administrative law judge shall issue a decision and
order with respect to the claim making an award to the claimant,
rejecting the claim, or taking such other action as is appropriate.
Sec. 725.477 Form and contents of decision and order.
(a) Orders adjudicating claims for benefits shall be designated by
the term ``decision and order'' or ``supplemental decision and order''
as appropriate, followed by a descriptive phrase designating the
particular type of order, such as ``award of benefits,'' ``rejection of
claim,'' ``suspension of benefits,'' ``modification of award.''
(b) A decision and order shall contain a statement of the basis of
the order, the names of the parties, 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. A decision and order shall be based upon the
record made before the administrative law judge.
Sec. 725.478 Filing and service of decision and order.
On the date of issuance of a decision and order under Sec. 725.477,
the administrative law judge shall serve the decision and order on all
parties to the claim by certified mail. On the same date, the original
record of the claim shall be sent to the DCMWC in Washington, D.C. Upon
receipt by the DCMWC, the decision and order shall be considered to be
filed in the office of the district director, and shall become
effective on that date.
Sec. 725.479 Finality of decisions and orders.
(a) A decision and order shall become effective when filed in the
office of the district director (see Sec. 725.478), and unless
proceedings for suspension or setting aside of such order are
instituted within 30 days of such filing, the order shall become final
at the expiration of
[[Page 55046]]
the 30th day after such filing (see Sec. 725.481).
(b) Any party may, within 30 days after the filing of a decision
and order under Sec. 725.478, request a reconsideration of such
decision and order by the administrative law judge. The procedures to
be followed in the reconsideration of a decision and order shall be
determined by the administrative law judge.
(c) The time for appeal to the Benefits Review Board shall be
suspended during the consideration of a request for reconsideration.
After the administrative law judge has issued and filed a denial of the
request for reconsideration, or a revised decision and order in
accordance with this part, any dissatisfied party shall have 30 days
within which to institute proceedings to set aside the decision and
order on reconsideration.
(d) Regardless of any defect in service, actual receipt of the
decision is sufficient to commence the 30-day period for requesting
reconsideration or appealing the decision.
Sec. 725.480 Modification of decisions and orders.
A party who is dissatisfied with a decision and order which has
become final in accordance with Sec. 725.479 may request a modification
of the decision and order if the conditions set forth in Sec. 725.310
are met.
Sec. 725.481 Right to appeal to the Benefits Review Board.
Any party dissatisfied with a decision and order issued by an
administrative law judge may, before the decision and order becomes
final (see Sec. 725.479), appeal the decision and order to the Benefits
Review Board. A notice of appeal shall be filed with the Board.
Proceedings before the Board shall be conducted in accordance with part
802 of this title.
Sec. 725.482 Judicial review.
(a) Any person adversely affected or aggrieved by a final order of
the Benefits Review Board may obtain a review of that order in the U.S.
court of appeals for the circuit in which the injury occurred by filing
in such court within 60 days following the issuance of such Board order
a written petition praying that the order be modified or set aside. The
payment of the amounts required by an award shall not be stayed pending
final decision in any such proceeding unless ordered by the court. No
stay shall be issued unless the court finds that irreparable injury
would otherwise ensue to an operator or carrier.
(b) The Director, Office of Workers' Compensation Program, as
designee of the Secretary of Labor responsible for the administration
and enforcement of the Act, shall be considered the proper party to
appear and present argument on behalf of the Secretary of Labor in all
review proceedings conducted pursuant to this part and the Act, either
as petitioner or respondent.
Sec. 725.483 Costs in proceedings brought without reasonable grounds.
If a United States court having jurisdiction of proceedings
regarding any claim or final decision and order, determines that the
proceedings have been instituted or continued before such court without
reasonable ground, the costs of such proceedings shall be assessed
against the party who has so instituted or continued such proceedings.
Subpart G--Responsible Coal Mine Operators
General Provisions
Sec. 725.490 Statutory provisions and scope.
(a) One of the major purposes of the black lung benefits amendments
of 1977 was to provide a more effective means of transferring the
responsibility for the payment of benefits from the Federal government
to the coal industry with respect to claims filed under this part. In
furtherance of this goal, a Black Lung Disability Trust Fund financed
by the coal industry was established by the Black Lung Benefits Revenue
Act of 1977. The primary purpose of the Fund is to pay benefits with
respect to all claims in which the last coal mine employment of the
miner on whose account the claim was filed occurred before January 1,
1970. With respect to most claims in which the miner's last coal mine
employment occurred after January 1, 1970, individual coal mine
operators will be liable for the payment of benefits. The 1981
amendments to the Act relieved individual coal mine operators from the
liability for payment of certain special claims involving coal mine
employment on or after January 1, 1970, where the claim was previously
denied and subsequently approved under section 435 of the Act. See
Sec. 725.496 for a detailed description of these special claims. Where
no such operator exists or the operator determined to be liable is in
default in any case, the fund shall pay the benefits due and seek
reimbursement as is appropriate. See also Sec. 725.420 for the fund's
role in the payment of interim benefits in certain contested cases. In
addition, the Black Lung Benefits Reform Act of 1977 amended certain
provisions affecting the scope of coverage under the Act and describing
the effects of particular corporate transactions on the liability of
operators.
(b) The provisions of this subpart define the term ``operator'' and
prescribe the manner in which the identity of an operator which may be
liable for the payment of benefits--referred to herein as a
``responsible operator''--will be determined.
Sec. 725.491 Operator defined.
(a) For purposes of this part, the term ``operator'' shall include:
(1) Any owner, lessee, or other person who operates, controls, or
supervises a coal mine, or any independent contractor performing
services or construction at such mine; or
(2) Any other person who:
(i) Employs an individual in the transportation of coal or in coal
mine construction in or around a coal mine, to the extent such
individual was exposed to coal mine dust as a result of such employment
(see Sec. 725.202);
(ii) In accordance with the provisions of Sec. 725.492, may be
considered a successor operator; or
(iii) Paid wages or a salary, or provided other benefits, to an
individual in exchange for work as a miner (see Sec. 725.202).
(b) The terms ``owner,'' ``lessee,'' and ``person'' shall include
any individual, partnership, association, corporation, firm, subsidiary
of a corporation, or other organization, as appropriate, except that an
officer of a corporation shall not be considered an ``operator'' for
purposes of this part. Following the issuance of an order awarding
benefits against a corporation that has not secured its liability for
benefits in accordance with section 423 of the Act and Sec. 726.4, such
order may be enforced against the president, secretary, or treasurer of
the corporation in accordance with subpart I of this part.
(c) The term ``independent contractor'' shall include any person
who contracts to perform services. Such contractor's status as an
operator shall not be contingent upon the amount or percentage of its
work or business related to activities in or around a mine, nor upon
the number or percentage of its employees engaged in such activities.
(d) For the purposes of determining whether a person is or was an
operator that may be found liable for the payment of benefits under
this part, there shall be a rebuttable presumption that during the
course of an individual's employment with such employer, such
individual was regularly and continuously exposed to coal mine dust
during the course of employment. The presumption may be rebutted by a
showing that the employee was not
[[Page 55047]]
exposed to coal mine dust for significant periods during such
employment.
(e) The operation, control, or supervision referred to in paragraph
(a)(1) of this section may be exercised directly or indirectly. Thus,
for example, where a coal mine is leased, and the lease empowers the
lessor to make decisions with respect to the terms and conditions under
which coal is to be extracted or prepared, such as, but not limited to,
the manner of extraction or preparation or the amount of coal to be
produced, the lessor may be considered an operator. Similarly, any
parent entity or other controlling business entity may be considered an
operator for purposes of this part, regardless of the nature of its
business activities.
(f) Neither the United States, nor any State, nor any
instrumentality or agency of the United States or any State, shall be
considered an operator.
Sec. 725.492 Successor operator defined.
(a) Any person who, on or after January 1, 1970, acquired a mine or
mines, or substantially all of the assets thereof, from a prior
operator, or acquired the coal mining business of such prior operator,
or substantially all of the assets thereof, shall be considered a
``successor operator'' with respect to any miners previously employed
by such prior operator.
(b) The following transactions shall also be deemed to create
successor operator liability:
(1) If an operator ceases to exist by reason of a reorganization
which involves a change in identity, form, or place of business or
organization, however effected;
(2) If an operator ceases to exist by reason of a liquidation into
a parent or successor corporation; or
(3) If an operator ceases to exist by reason of a sale of
substantially all its assets, or as a result of merger, consolidation,
or division.
(c) In any case in which a transaction specified in paragraph (b),
or substantially similar to a transaction specified in paragraph (b)
took place, the resulting entity shall be considered a ``successor
operator'' with respect to any miners previously employed by such prior
operator.
(d) This section shall not be construed to relieve a prior operator
of any liability if such prior operator meets the conditions set forth
in Sec. 725.494. If the prior operator does not meet the conditions set
forth in Sec. 725.494, the following provisions shall apply:
(1) In any case in which a prior operator transferred a mine or
mines, or substantially all of the assets thereof, to a successor
operator, or sold its coal mining business or substantially all of the
assets thereof, to a successor operator, and then ceased to exist,
within the terms of paragraph (b), the successor operator as identified
in paragraph (a) shall be primarily liable for the payment of benefits
to any miners previously employed by such prior operator.
(2) In any case in which a prior operator transferred mines, or
substantially all of the assets thereof, to more than one successor
operator, the successor operator that most recently acquired a mine or
mines or assets from the prior operator shall be primarily liable for
the payment of benefits to any miners previously employed by such prior
operator.
(3) In any case in which a mine or mines, or substantially all the
assets thereof, have been transferred more than once, the successor
operator that most recently acquired such mine or mines or assets shall
be primarily liable for the payment of benefits to any miners
previously employed by the original prior operator. If the most recent
successor operator does not meet the criteria for a potentially liable
operator set forth in Sec. 725.494, the next most recent successor
operator shall be liable.
(e) An ``acquisition,'' for purposes of this section, shall include
any transaction by which title to the mine or mines, or substantially
all of the assets thereof, or the right to extract or prepare coal at
such mine or mines, becomes vested in a person other than the prior
operator.
Sec. 725.493 Employment relationship defined.
(a)(1) In determining the identity of a responsible operator under
this part, the terms ``employ'' and ``employment'' shall be construed
as broadly as possible, and shall include any relationship under which
an operator retains the right to direct, control, or supervise the work
performed by a miner, or any other relationship under which an operator
derives a benefit from the work performed by a miner. Any individuals
who participate with one or more persons in the mining of coal, such as
owners, proprietors, partners, and joint venturers, whether they are
compensated by wages, salaries, piece rates, shares, profits, or by any
other means, shall be deemed employees. It is the specific intention of
this paragraph to disregard any financial arrangement or business
entity devised by the actual owners or operators of a coal mine or coal
mine-related enterprise to avoid the payment of benefits to miners who,
based upon the economic reality of their relationship to this
enterprise, are, in fact, employees of the enterprise.
(2) The payment of wages or salary shall be prima facie evidence of
the right to direct, control, or supervise an individual's work. The
Department intends that where the operator who paid a miner's wages or
salary meets the criteria for a potentially liable operator set forth
in Sec. 725.494, that operator shall be primarily liable for the
payment of any benefits due the miner as a result of such employment.
The absence of such payment, however, will not negate the existence of
an employment relationship. Thus, the Department also intends that
where the person who paid a miner's wages may not be considered a
potentially liable operator, any other operator who retained the right
to direct, control or supervise the work performed by the miner, or who
benefitted from such work, may be considered a potentially liable
operator.
(b) This paragraph contains examples of relationships that shall be
considered employment relationships for purposes of this part. The list
is not intended to be exclusive.
(1) In any case in which an operator may be considered a successor
operator, as determined in accordance with Sec. 725.492, any employment
with a prior operator shall also be deemed to be employment with the
successor operator. In a case in which the miner was not independently
employed by the successor operator, the prior operator shall remain
primarily liable for the payment of any benefits based on the miner's
employment with the prior operator. In a case in which the miner was
independently employed by the successor operator after the transaction
giving rise to successor operator liability, the successor operator
shall be primarily liable for the payment of any benefits.
(2) In any case in which the operator which directed, controlled or
supervised the miner is no longer in business and such operator was a
subsidiary of a parent company, a member of a joint venture, a partner
in a partnership, or was substantially owned or controlled by another
business entity, such parent entity or other member of a joint venture
or partner or controlling business entity may be considered the
employer of any employees of such operator.
(3) In any claim in which the operator which directed, controlled
or supervised the miner is a lessee, the lessee shall be considered
primarily liable for the claim. The liability of the lessor may be
established only after it has been determined that the lessee is unable
to provide for the payment of
[[Page 55048]]
benefits to a successful claimant. In any case involving the liability
of a lessor for a claim arising out of employment with a lessee, any
determination of lessor liability shall be made on the basis of the
facts present in the case in accordance with the following
considerations:
(i) Where a coal mine is leased, and the lease empowers the lessor
to make decisions with respect to the terms and conditions under which
coal is to be extracted or prepared, such as, but not limited to, the
manner of extraction or preparation or the amount of coal to be
produced, the lessor shall be considered the employer of any employees
of the lessee.
(ii) Where a coal mine is leased to a self-employed operator, the
lessor shall be considered the employer of such self-employed operator
and its employees if the lease or agreement is executed or renewed
after August 18, 1978 and such lease or agreement does not require the
lessee to guarantee the payment of benefits which may be required under
this part and part 726 of this subchapter.
(iii) Where a lessor previously operated a coal mine, it may be
considered an operator with respect to employees of any lessee of such
mine, particularly where the leasing arrangement was executed or
renewed after August 18, 1978 and does not require the lessee to secure
benefits provided by the Act.
(4) A self-employed operator, depending upon the facts of the case,
may be considered an employee of any other operator, person, or
business entity which substantially controls, supervises, or is
financially responsible for the activities of the self-employed
operator.
Sec. 725.494 Potentially liable operators.
An operator may be considered a ``potentially liable operator''
with respect to a claim for benefits under this part if each of the
following conditions is met:
(a) The miner's disability or death arose at least in part out of
employment in or around a mine or other facility during a period when
the mine or facility was operated by such operator, or by a person with
respect to which the operator may be considered a successor operator.
For purposes of this section, there shall be a rebuttable presumption
that the miner's disability or death arose in whole or in part out of
his or her employment with such operator. Unless this presumption is
rebutted, the responsible operator shall be liable to pay benefits to
the claimant on account of the disability or death of the miner in
accordance with this part. A miner's pneumoconiosis, or disability or
death therefrom, shall be considered to have arisen in whole or in part
out of work in or around a mine if such work caused, contributed to or
aggravated the progression or advancement of a miner's loss of ability
to perform his or her regular coal mine employment or comparable
employment.
(b) The operator, or any person with respect to which the operator
may be considered a successor operator, was an operator for any period
after June 30, 1973.
(c) The miner was employed by the operator, or any person with
respect to which the operator may be considered a successor operator,
for a cumulative period of not less than one year
(Sec. 725.101(a)(32)).
(d) The miner's employment with the operator, or any person with
respect to which the operator may be considered a successor operator,
included at least one working day (Sec. 725.101(a)(32)) after December
31, 1969.
(e) The operator is capable of assuming its liability for the
payment of continuing benefits under this part. An operator will be
deemed capable of assuming its liability for a claim if one of the
following three conditions is met:
(1) The operator obtained a policy or contract of insurance under
section 423 of the Act and part 726 of this subchapter that covers the
claim, except that such policy shall not be considered sufficient to
establish the operator's capability of assuming liability if the
insurance company has been declared insolvent and its obligations for
the claim are not otherwise guaranteed;
(2) The operator qualified as a self-insurer under section 423 of
the Act and part 726 of this subchapter during the period in which the
miner was last employed by the operator, provided that the operator
still qualifies as a self-insurer or the security given by the operator
pursuant to Sec. 726.104(b) is sufficient to secure the payment of
benefits in the event the claim is awarded; or
(3) The operator possesses sufficient assets to secure the payment
of benefits in the event the claim is awarded in accordance with
Sec. 725.606.
Sec. 725.495 Criteria for determining a responsible operator.
(a)(1) The operator responsible for the payment of benefits in a
claim adjudicated under this part (the ``responsible operator'') shall
be the potentially liable operator, as determined in accordance with
Sec. 725.494, that most recently employed the miner.
(2) If more than one potentially liable operator may be deemed to
have employed the miner most recently, then the liability for any
benefits payable as a result of such employment shall be assigned as
follows:
(i) First, to the potentially liable operator that directed,
controlled, or supervised the miner;
(ii) Second, to any potentially liable operator that may be
considered a successor operator with respect to miners employed by the
operator identified in paragraph (a)(2)(i) of this section; and
(iii) Third, to any other potentially liable operator which may be
deemed to have been the miner's most recent employer pursuant to
Sec. 725.493.
(3) If the operator that most recently employed the miner may not
be considered a potentially liable operator, as determined in
accordance with Sec. 725.494, the responsible operator shall be the
potentially liable operator that next most recently employed the miner.
Any potentially liable operator that employed the miner for at least
one day after December 31, 1969 may be deemed the responsible operator
if no more recent employer may be considered a potentially liable
operator.
(b) Except as provided in this section and Sec. 725.408(a)(3), with
respect to the adjudication of the identity of a responsible operator,
the Director shall bear the burden of proving that the responsible
operator initially found liable for the payment of benefits pursuant to
Sec. 725.410 (the ``designated responsible operator'') is a potentially
liable operator. It shall be presumed, in the absence of evidence to
the contrary, that the designated responsible operator is capable of
assuming liability for the payment of benefits in accordance with
Sec. 725.494(e).
(c) The designated responsible operator shall bear the burden of
proving either:
(1) That it does not possess sufficient assets to secure the
payment of benefits in accordance with Sec. 725.606; or
(2) That it is not the potentially liable operator that most
recently employed the miner. Such proof must include evidence that the
miner was employed as a miner after he or she stopped working for the
designated responsible operator and that the person by whom he or she
was employed is a potentially liable operator within the meaning of
Sec. 725.494. In order to establish that a more recent employer is a
potentially liable operator, the designated responsible operator must
demonstrate that the more recent employer possesses sufficient assets
to secure the payment of benefits in accordance with
[[Page 55049]]
Sec. 725.606. The designated responsible operator may satisfy its
burden by presenting evidence that the owner, if the more recent
employer is a sole proprietorship; the partners, if the more recent
employer is a partnership; or the president, secretary, and treasurer,
if the more recent employer is a corporation that failed to secure the
payment of benefits pursuant to part 726 of this subchapter, possess
assets sufficient to secure the payment of benefits, provided such
assets may be reached in a proceeding brought under subpart I of this
part.
(d) In any case referred to the Office of Administrative Law Judges
pursuant to Sec. 725.421 in which the responsible operator initially
found liable for the payment of benefits pursuant to Sec. 725.410 is
not the operator that most recently employed the miner, the record
shall contain a statement from the district director explaining the
reasons for such initial finding. If the reasons include the most
recent employer's failure to meet the conditions of Sec. 725.494(e),
the record shall also contain a statement that the Office has searched
the files it maintains pursuant to part 726, and that the Office has no
record of insurance coverage for that employer, or of authorization to
self-insure, that meets the conditions of Sec. 725.494(e)(1) or (e)(2).
Such a statement shall be prima facie evidence that the most recent
employer is not financially capable of assuming its liability for a
claim. In the absence of such a statement, it shall be presumed that
the most recent employer is financially capable of assuming its
liability for a claim.
Sec. 725.496 Special claims transferred to the fund.
(a) The 1981 amendments to the Act amended section 422 of the Act
and transferred liability for payment of certain special claims from
operators and carriers to the fund. These provisions apply to claims
which were denied before March 1, 1978, and which have been or will be
approved in accordance with section 435 of the Act.
(b) Section 402(i) of the Act defines three classes of denied
claims subject to the transfer provisions:
(1) Claims filed with and denied by the Social Security
Administration before March 1, 1978;
(2) Claims filed with the Department of Labor in which the claimant
was notified by the Department of an administrative or informal denial
before March 1, 1977, and in which the claimant did not within one year
of such notification either:
(i) Request a hearing; or
(ii) Present additional evidence; or
(iii) Indicate an intention to present additional evidence; or
(iv) Request a modification or reconsideration of the denial on the
ground of a change in conditions or because of a mistake in a
determination of fact;
(3) Claims filed with the Department of Labor and denied under the
law in effect prior to the enactment of the Black Lung Benefits Reform
Act of 1977, that is, before March 1, 1978, following a formal hearing
before an administrative law judge or administrative review before the
Benefits Review Board or review before a United States Court of
Appeals.
(c) Where more than one claim was filed with the Social Security
Administration and/or the Department of Labor prior to March 1, 1978,
by or on behalf of a miner or a surviving dependent of a miner, unless
such claims were required to be merged by the agency's regulations, the
procedural history of each such claim must be considered separately to
determine whether the claim is subject to the transfer of liability
provisions.
(d) For a claim filed with and denied by the Social Security
Administration prior to March 1, 1978, to come within the transfer
provisions, such claim must have been or must be approved under the
provisions of section 435 of the Act. No claim filed with and denied by
the Social Security Administration is subject to the transfer of
liability provisions unless a request was made by or on behalf of the
claimant for review of such denied claim under section 435. Such review
must have been requested by the filing of a valid election card or
other equivalent document with the Social Security Administration in
accordance with section 435(a) and its implementing regulations at 20
CFR 410.700 through 410.707.
(e) Where a claim filed with the Department of Labor prior to March
1, 1977, was subjected to repeated administrative or informal denials,
the last such denial issued during the pendency of the claim determines
whether the claim is subject to the transfer of liability provisions.
(f) Where a miner's claim comes within the transfer of liability
provisions of the 1981 amendments the fund is also liable for the
payment of any benefits to which the miner's dependent survivors are
entitled after the miner's death. However, if the survivor's
entitlement was established on a separate claim not subject to the
transfer of liability provisions prior to approval of the miner's claim
under section 435, the party responsible for the payment of such
survivors' benefits shall not be relieved of that responsibility
because the miner's claim was ultimately approved and found subject to
the transfer of liability provisions.
Sec. 725.497 Procedures in special claims transferred to the fund.
(a) General. It is the purpose of this section to define procedures
to expedite the handling and disposition of claims affected by the
benefit liability transfer provisions of Section 205 of the Black Lung
Benefits Amendments of 1981.
(b) Action by the Department. The OWCP shall, in accordance with
the criteria contained in Sec. 725.496, review each claim which is or
may be affected by the provisions of Section 205 of the Black Lung
Benefits Amendments of 1981. Any party to a claim, adjudication
officer, or adjudicative body may request that such a review be
conducted and that the record be supplemented with any additional
documentation necessary for an informed consideration of the
transferability of the claim. Where the issue of the transferability of
the claim can not be resolved by agreement of the parties and the
evidence of record is not sufficient for a resolution of the issue, the
hearing record may be reopened or the case remanded for the development
of the additional evidence concerning the procedural history of the
claim necessary to such resolution. Such determinations shall be made
on an expedited basis.
(c) Dismissal of operators. If it is determined that a coal mine
operator or insurance carrier which previously participated in the
consideration or adjudication of any claim, may no longer be found
liable for the payment of benefits to the claimant by reason of section
205 of the Black Lung Benefits Amendments of 1981, such operator or
carrier shall be promptly dismissed as a party to the claim. The
dismissal of an operator or carrier shall be concluded at the earliest
possible time and in no event shall an operator or carrier participate
as a necessary party in any claim for which only the fund may be
liable.
(d) Procedure following dismissal of an operator. After it has been
determined that an operator or carrier must be dismissed as a party in
any claim in accordance with this section, the Director shall take such
action as is authorized by the Act to bring about the proper and
expeditious resolution of the claim in light of all relevant medical
and other evidence. Action to be taken in this regard by the Director
may include, but is not limited to, the assignment of the claim to the
Black
[[Page 55050]]
Lung Disability Trust Fund for the payment of benefits, the
reimbursement of benefits previously paid by an operator or carrier if
appropriate, the defense of the claim on behalf of the fund, or
proceedings authorized by Sec. 725.310.
(e) Any claimant whose claim has been subsequently denied in a
modification proceeding will be entitled to expedited review of the
modification decision. Where a formal hearing was previously held, the
claimant may waive his right to a further hearing and ask that a
decision be made on the record of the prior hearing, as supplemented by
any additional documentary evidence which the parties wish to introduce
and briefs of the parties, if desired. In any case in which the
claimant waives his right to a second hearing, a decision and order
must be issued within 30 days of the date upon which the parties agree
the record has been completed.
Subpart H--Payment of Benefits
General Provisions
Sec. 725.501 Payment provisions generally.
The provisions of this subpart govern the payment of benefits to
claimants whose claims are approved for payment under section 415 and
part C of title IV of the Act or approved after review under section
435 of the Act and part 727 of this subchapter (see Sec. 725.4(d)).
Sec. 725.502 When benefit payments are due; manner of payment.
(a)(1) Except with respect to benefits paid by the fund pursuant to
an initial determination issued in accordance with Sec. 725.418 (see
Sec. 725.522), benefits under the Act shall be paid when they become
due. Benefits shall be considered due after the issuance of an
effective order requiring the payment of benefits by a district
director, administrative law judge, Benefits Review Board, or court,
notwithstanding the pendency of a motion for reconsideration before an
administrative law judge or an appeal to the Board or court, except
that benefits shall not be considered due where the payment of such
benefits has been stayed by the Benefits Review Board or appropriate
court. An effective order shall remain in effect unless it is vacated
by an administrative law judge on reconsideration, or, upon review
under section 21 of the LHWCA, by the Benefits Review Board or an
appropriate court, or is superseded by an effective order issued
pursuant to Sec. 725.310.
(2) A proposed order issued by a district director pursuant to
Sec. 725.418 becomes effective at the expiration of the thirtieth day
thereafter if no party timely requests revision of the proposed
decision and order or a hearing (see Sec. 725.419). An order issued by
an administrative law judge becomes effective when it is filed in the
office of the district director (see Sec. 725.479). An order issued by
the Benefits Review Board shall become effective when it is issued. An
order issued by a court shall become effective in accordance with the
rules of the court.
(b)(1) While an effective order requiring the payment of benefits
remains in effect, monthly benefits, at the rates set forth in
Sec. 725.520, shall be due on the fifteenth day of the month following
the month for which the benefits are payable. For example, benefits
payable for the month of January shall be due on the fifteenth day of
February.
(2) Within 30 days after the issuance of an effective order
requiring the payment of benefits, the district director shall compute
the amount of benefits payable for periods prior to the effective date
of the order, in addition to any interest payable for such periods (see
Sec. 725.608), and shall so notify the parties. Any computation made by
the district director under this paragraph shall strictly observe the
terms of the order. Benefits and interest payable for such periods
shall be due on the thirtieth day following issuance of the district
director's computation. A copy of the current table of applicable
interest rates shall be attached.
(c) Benefits are payable for monthly periods and shall be paid
directly to an eligible claimant or his or her representative payee
(see Sec. 725.510) beginning with the month during which eligibility
begins. Benefits payments shall terminate with the month before the
month during which eligibility terminates. If a claimant dies in the
first month during which all requirements are met, benefits shall be
paid for that month.
Sec. 725.503 Date from which benefits are payable.
(a) In accordance with the provisions of section 6(a) of the
Longshore Act as incorporated by section 422(a) of the Act, and except
as provided in Sec. 725.504, the provisions of this section shall be
applicable in determining the date from which benefits are payable to
an eligible claimant for any claim filed after March 31, 1980. Except
as provided in paragraph (d) of this section, the date from which
benefits are payable for any claim approved under part 727 of this
subchapter, shall be determined in accordance with Sec. 727.302 (see
Sec. 725.4(d).
(b) Miner's claim. In the case of a miner who is entitled to
benefits, benefits are payable to such miner beginning with the month
of onset of total disability due to pneumoconiosis arising out of coal
mine employment. Where the evidence does not establish the month of
onset, benefits shall be payable to such miner beginning with the month
during which the claim was filed. In the case of a miner who filed a
claim before January 1, 1982, benefits shall be payable to the miner's
eligible survivor (if any) beginning with the month in which the miner
died.
(c) Survivor's claim. In the case of an eligible survivor, benefits
shall be payable beginning with the month of the miner's death, or
January 1, 1974, whichever is later.
(d) If a claim is awarded pursuant to section 22 of the Longshore
Act and Sec. 725.310, then the date from which benefits are payable
shall be determined as follows:
(1) Mistake in fact. The provisions of paragraphs (b) or (c) of
this section, as applicable, shall govern the determination of the date
from which benefits are payable.
(2) Change in conditions. Benefits are payable to a miner beginning
with the month of onset of total disability due to pneumoconiosis
arising out of coal mine employment, provided that no benefits shall be
payable for any month prior to the effective date of the most recent
denial of the claim by a district director or administrative law judge.
Where the evidence does not establish the month of onset, benefits
shall be payable to such miner from the month in which the claimant
requested modification.
(e) In the case of a claim filed between July 1, 1973, and December
31, 1973, benefits shall be payable as provided by this section, except
to the extent prohibited by Sec. 727.303 (see Sec. 725.4(d)).
(f) No benefits shall be payable with respect to a claim filed
after December 31, 1973 (a part C claim), for any period of eligibility
occurring before January 1, 1974.
(g) Each decision and order awarding benefits shall indicate the
month from which benefits are payable to the eligible claimant.
Sec. 725.504 Payments to a claimant employed as a miner.
(a) In the case of a claimant who is employed as a miner (see
Sec. 725.202) at the time of a final determination of such miner's
eligibility for benefits, no benefits shall be payable unless:
(1) The miner's eligibility is established under section 411(c)(3)
of the Act; or
[[Page 55051]]
(2) The miner terminates his or her coal mine employment within 1
year from the date of the final determination of the claim.
(b) If the eligibility of a working miner is established under
section 411(c)(3) of the Act, benefits shall be payable as is otherwise
provided in this part. If eligibility cannot be established under
section 411(c)(3), and the miner continues to be employed as a miner in
any capacity for a period of less than 1 year after a final
determination of the claim, benefits shall be payable beginning with
the month during which the miner ends his or her coal mine employment.
If the miner's employment continues for more than 1 year after a final
determination of eligibility, such determination shall be considered a
denial of benefits on the basis of the miner's continued employment,
and the miner may seek benefits only as provided in Sec. 725.310, if
applicable, or by filing a new claim under this part. The provisions of
subparts E and F of this part shall be applicable to claims considered
under this section as is appropriate.
(c) In any case where the miner returns to coal mine or comparable
and gainful work, the payments to such miner shall be suspended and no
benefits shall be payable (except as provided in section 411(c)(3) of
the Act) for the period during which the miner continues to work. If
the miner again terminates employment, the district director may
require the miner to submit to further medical examination before
authorizing the payment of benefits.
Sec. 725.505 Payees.
Benefits may be paid, as appropriate, to a beneficiary, to a
qualified dependent, or to a representative authorized under this
subpart to receive payments on behalf of such beneficiary or dependent.
Sec. 725.506 Payment on behalf of another; ``legal guardian'' defined.
Benefits are paid only to the beneficiary, his or her
representative payee (see Sec. 725.510) or his or her legal guardian.
As used in this section, ``legal guardian'' means an individual who has
been appointed by a court of competent jurisdiction or otherwise
appointed pursuant to law to assume control of and responsibility for
the care of the beneficiary, the management of his or her estate, or
both.
Sec. 725.507 Guardian for minor or incompetent.
An adjudication officer may require that a legal guardian or
representative be appointed to receive benefit payments payable to any
person who is mentally incompetent or a minor and to exercise the
powers granted to, or to perform the duties otherwise required of such
person under the Act.
Sec. 725.510 Representative payee.
(a) If the district director determines that the best interests of
a beneficiary are served thereby, the district director may certify the
payment of such beneficiary's benefits to a representative payee.
(b) Before any amount shall be certified for payment to any
representative payee for or on behalf of a beneficiary, such
representative payee shall submit to the district director such
evidence as may be required of his or her relationship to, or his or
her responsibility for the care of, the beneficiary on whose behalf
payment is to be made, or of his or her authority to receive such a
payment. The district director may, at any time thereafter, require
evidence of the continued existence of such relationship,
responsibility, or authority. If a person requesting representative
payee status fails to submit the required evidence within a reasonable
period of time after it is requested, no further payments shall be
certified to him or her on behalf of the beneficiary unless the
required evidence is thereafter submitted.
(c) All benefit payments made to a representative payee shall be
available only for the use and benefit of the beneficiary, as defined
in Sec. 725.511.
Sec. 725.511 Use and benefit defined.
(a) Payments certified to a representative payee shall be
considered as having been applied for the use and benefit of the
beneficiary when they are used for the beneficiary's current
maintenance--i.e., to replace current income lost because of the
disability of the beneficiary. Where a beneficiary is receiving care in
an institution, current maintenance shall include the customary charges
made by the institution and charges made for the current and
foreseeable needs of the beneficiary which are not met by the
institution.
(b) Payments certified to a representative payee which are not
needed for the current maintenance of the beneficiary, except as they
may be used under Sec. 725.512, shall be conserved or invested on the
beneficiary's behalf. Preferred investments are U.S. savings bonds
which shall be purchased in accordance with applicable regulations of
the U.S. Treasury Department (31 CFR part 315). Surplus funds may also
be invested in accordance with the rules applicable to investment of
trust estates by trustees. For example, surplus funds may be deposited
in an interest or dividend bearing account in a bank or trust company
or in a savings and loan association if the account is either federally
insured or is otherwise insured in accordance with State law
requirements. Surplus funds deposited in an interest or dividend
bearing account in a bank or trust company or in a savings and loan
association must be in a form of account which clearly shows that the
representative payee has only a fiduciary, and not a personal, interest
in the funds. The preferred forms of such accounts are as follows:
Name of beneficiary----------------------------------------------------
by (Name of representative payee) representative payee,
or (Name of beneficiary)
by (Name of representative payee) trustee,
U.S. savings bonds purchased with surplus funds by a
representative payee for an incapacitated adult beneficiary should
be registered as follows: (Name of beneficiary) (Social Security
No.), for whom (Name of payee) is representative payee for black
lung benefits.
Sec. 725.512 Support of legally dependent spouse, child, or parent.
If current maintenance needs of a beneficiary are being reasonably
met, a relative or other person to whom payments are certified as
representative payee on behalf of the beneficiary may use part of the
payments so certified for the support of the legally dependent spouse,
a legally dependent child, or a legally dependent parent of the
beneficiary.
Sec. 725.513 Accountability; transfer.
(a) The district director may require a representative payee to
submit periodic reports including a full accounting of the use of all
benefit payments certified to a representative payee. If a requested
report or accounting is not submitted within the time allowed, the
district director shall terminate the certification of the
representative payee and thereafter payments shall be made directly to
the beneficiary. A certification which is terminated under this section
may be reinstated for good cause, provided that all required reports
are supplied to the district director.
(b) A representative payee who has conserved or invested funds from
payments under this part shall, upon the direction of the district
director, transfer any such funds (including interest) to a successor
payee appointed by the district director or, at the option of the
district director, shall transfer such funds to the Office for
[[Page 55052]]
recertification to a successor payee or the beneficiary.
Sec. 725.514 Certification to dependent of augmentation portion of
benefit.
(a) If the basic benefit of a miner or of a surviving spouse is
augmented because of one or more dependents, and it appears to the
district director that the best interests of such dependent would be
served thereby, or that the augmented benefit is not being used for the
use and benefit (as defined in this subpart) of the augmentee, the
district director may certify payment of the amount of such
augmentation (to the extent attributable to such dependent) to such
dependent directly, or to a legal guardian or a representative payee
for the use and benefit of such dependent.
(b) Any request to the district director to certify separate
payment of the amount of an augmentation in accordance with paragraph
(a) of this section shall be in writing on such form and in accordance
with such instructions as are prescribed by the Office.
(c) The district director shall specify the terms and conditions of
any certification authorized under this section and may terminate any
such certification where appropriate.
(d) Any payment made under this section, if otherwise valid under
the Act, is a complete settlement and satisfaction of all claims,
rights, and interests in and to such payment, except that such payment
shall not be construed to abridge the rights of any party to recoup any
overpayment made.
Sec. 725.515 Assignment and exemption from claims of creditors.
(a) Except as provided by the Act and this part, no assignment,
release, or commutation of benefits due or payable under this part by a
responsible operator shall be valid, and all benefits shall be exempt
from claims of creditors and from levy, execution, and attachment or
other remedy or recovery or collection of a debt, which exemption may
not be waived.
(b) Notwithstanding any other provision of law, benefits due from,
or payable by, the Black Lung Disability Trust Fund under the Act and
this part to a claimant shall be subject to legal process brought for
the enforcement against the claimant of his or her legal obligations to
provide child support or make alimony payments to the same extent as if
the fund was a private person.
Benefit Rates
Sec. 725.520 Computation of benefits.
(a) Basic rate. The amount of benefits payable to a beneficiary for
a month is determined, in the first instance, by computing the ``basic
rate.'' The basic rate is equal to 37\1/2\ percent of the monthly pay
rate for Federal employees in GS-2, step 1. That rate for a month is
determined by:
(1) Ascertaining the lowest annual rate of pay (step 1) for Grade
GS-2 of the General Schedule applicable to such month (see 5 U.S.C.
5332);
(2) Ascertaining the monthly rate thereof by dividing the amount
determined in paragraph (a)(1) of this section by 12; and
(3) Ascertaining the basic rate under the Act by multiplying the
amount determined in paragraph (a)(2) of this section by 0.375 (that
is, by 37\1/2\ percent).
(b) Basic benefit. When a miner or surviving spouse is entitled to
benefits for a month for which he or she has no dependents who qualify
under this part and when a surviving child of a miner or spouse, or a
parent, brother, or sister of a miner, is entitled to benefits for a
month for which he or she is the only beneficiary entitled to benefits,
the amount of benefits to which such beneficiary is entitled is equal
to the basic rate as computed in accordance with this section (raised,
if not a multiple of 10 cents, to the next high multiple of 10 cents).
This amount is referred to as the ``basic benefit.''
(c) Augmented benefit. (1) When a miner or surviving spouse is
entitled to benefits for a month for which he or she has one or more
dependents who qualify under this part, the amount of benefits to which
such miner or surviving spouse is entitled is increased. This increase
is referred to as an ``augmentation.''
(2) The benefits of a miner or surviving spouse are augmented to
take account of a particular dependent beginning with the first month
in which such dependent satisfies the conditions set forth in this
part, and continues to be augmented through the month before the month
in which such dependent ceases to satisfy the conditions set forth in
this part, except in the case of a child who qualifies as a dependent
because he or she is a student. In the latter case, such benefits
continue to be augmented through the month before the first month
during no part of which he or she qualifies as a student.
(3) The basic rate is augmented by 50 percent for one such
dependent, 75 percent for two such dependents, and 100 percent for
three or more such dependents.
(d) Survivor benefits. As used in this section, ``survivor'' means
a surviving child of a miner or surviving spouse, or a surviving
parent, brother, or sister of a miner, who establishes entitlement to
benefits under this part.
(e) Computation and rounding. (1) Any computation prescribed by
this section is made to the third decimal place.
(2) Monthly benefits are payable in multiples of 10 cents.
Therefore, a monthly payment of amounts derived under paragraph (c)(3)
of this section which is not a multiple of 10 cents is increased to the
next higher multiple of 10 cents.
(3) Since a fraction of a cent is not a multiple of 10 cents, such
an amount which contains a fraction in the third decimal place is
raised to the next higher multiple of 10 cents.
(f) Eligibility based on the coal mine employment of more than one
miner. Where an individual, for any month, is entitled (and/or
qualifies as a dependent for purposes of augmentation of benefits)
based on the disability or death due to pneumoconiosis arising out of
the coal mine employment of more than one miner, the benefit payable to
or on behalf of such individual shall be at a rate equal to the highest
rate of benefits for which entitlement is established by reason of
eligibility as a beneficiary, or by reason of his or her qualification
as a dependent for augmentation of benefit purposes.
Sec. 725.521 Commutation of payments; lump sum awards.
(a) Whenever the district director determines that it is in the
interest of justice, the liability for benefits or any part thereof as
determined by a final adjudication, may, with the approval of the
Director, be discharged by the payment of a lump sum equal to the
present value of future benefit payments commuted, computed at 4
percent true discount compounded annually.
(b) Applications for commutation of future payments of benefits
shall be made to the district director in the manner prescribed by the
district director. If the district director determines that an award of
a lump sum payment of such benefits would be in the interest of
justice, he or she shall refer such application, together with the
reasons in support of such determination, to the Director for
consideration.
(c) The Director shall, in his or her discretion, grant or deny the
application for commutation of payments. Such
[[Page 55053]]
decision may be appealed to the Benefits Review Board.
(d) The computation of all commutations of such benefits shall be
made by the OWCP. For this purpose the file shall contain the date of
birth of the person on whose behalf commutation is sought, as well as
the date upon which such commutation shall be effective.
(e) For purposes of determining the amount of any lump sum award,
the probability of the death of the disabled miner and/or other persons
entitled to benefits before the expiration of the period during which
he or she is entitled to benefits, shall be determined in accordance
with the most current United States Life Tables, as developed by the
Department of Health, Education, and Welfare, and the probability of
the remarriage of a surviving spouse shall be determined in accordance
with the remarriage tables of the Dutch Royal Insurance Institution.
The probability of the happening of any other contingency affecting the
amount or duration of the compensation shall be disregarded.
(f) In the event that an operator or carrier is adjudicated liable
for the payment of benefits, such operator or carrier shall be notified
of and given an opportunity to participate in the proceedings to
determine whether a lump sum award shall be made. Such operator or
carrier shall, in the event a lump sum award is made, tender full and
prompt payment of such award to the claimant as though such award were
a final payment of monthly benefits. Except as provided in paragraph
(g) of this section, such lump sum award shall forever discharge such
operator or carrier from its responsibility to make monthly benefit
payments under the Act to the person who has requested such lump-sum
award. In the event that an operator or carrier is adjudicated liable
for the payment of benefits, such operator or carrier shall not be
liable for any portion of a commuted or lump sum award predicated upon
benefits due any claimant prior to January 1, 1974.
(g) In the event a lump-sum award is approved under this section,
such award shall not operate to discharge an operator carrier, or the
fund from any responsibility imposed by the Act for the payment of
medical benefits to an eligible miner.
Sec. 725.522 Payments prior to final adjudication.
(a) If an operator or carrier fails or refuses to commence the
payment of benefits within 30 days of issuance of an initial
determination of eligibility by the district director (see
Sec. 725.420), or fails or refuses to commence the payment of any
benefits due pursuant to an effective order by a district director,
administrative law judge, Benefits Review Board, or court, the fund
shall commence the payment of such benefits and shall continue such
payments as appropriate. In the event that the fund undertakes the
payment of benefits on behalf of an operator or carrier, the provisions
of Secs. 725.601 through 725.609 shall be applicable to such operator
or carrier.
(b) If benefit payments are commenced prior to the final
adjudication of the claim and it is later determined by an
administrative law judge, the Board, or court that the claimant was
ineligible to receive such payments, such payments shall be considered
overpayments pursuant to Sec. 725.540 and may be recovered in
accordance with the provisions of this subpart.
Special Provisions for Operator Payments
Sec. 725.530 Operator payments; generally.
(a) Benefits payable by an operator or carrier pursuant to an
effective order issued by a district director, administrative law
judge, Benefits Review Board, or court, or by an operator that has
agreed that it is liable for the payment of benefits to a claimant,
shall be paid by the operator or carrier immediately when they become
due (see Sec. 725.502(b)). An operator that fails to pay any benefits
that are due, with interest, shall be considered in default with
respect to those benefits, and the provisions of Sec. 725.605 shall be
applicable. In addition, a claimant who does not receive any benefits
within 10 days of the date they become due is entitled to additional
compensation equal to twenty percent of those benefits (see
Sec. 725.607). Arrangements for the payment of medical costs shall be
made by such operator or carrier in accordance with the provisions of
subpart J of this part.
(b) Benefit payments made by an operator or carrier shall be made
directly to the person entitled thereto or a representative payee if
authorized by the district director. The payment of a claimant's
attorney's fee, if any is awarded, shall be made directly to such
attorney. Reimbursement of the fund, including interest, shall be paid
directly to the Secretary on behalf of the fund.
Sec. 725.531 Receipt for payment.
Any individual receiving benefits under the Act in his or her own
right, or as a representative payee, or as the duly appointed agent for
the estate of a deceased beneficiary, shall execute receipts for
benefits paid by any operator which shall be produced by such operator
for inspection whenever the district director requires. A canceled
check shall be considered adequate receipt of payment for purposes of
this section. No operator or carrier shall be required to retain
receipts for payments made for more than 5 years after the date on
which such receipt was executed.
Sec. 725.532 Suspension, reduction, or termination of payments.
(a) No suspension, reduction, or termination in the payment of
benefits is permitted unless authorized by the district director,
administrative law judge, Board, or court. No suspension, reduction, or
termination shall be authorized except upon the occurrence of an event
which terminates a claimant's eligibility for benefits (see subpart B
of this part) or as is otherwise provided in subpart C of this part,
Secs. 725.306 and 725.310, or this subpart (see also Secs. 725.533
through 725.546).
(b) Any unauthorized suspension in the payment of benefits by an
operator or carrier shall be treated as provided in subpart I.
(c) Unless suspension, reduction, or termination of benefits
payments is required by an administrative law judge, the Benefits
Review Board or a court, the district director, after receiving
notification of the occurrence of an event that would require the
suspension, reduction, or termination of benefits, shall follow the
procedures for the determination of claims set forth in subparts E and
F.
Increases and Reductions of Benefits
Sec. 725.533 Modification of benefits amounts; general.
(a) Under certain circumstances the amount of monthly benefits as
computed in Sec. 725.520 or lump-sum award (Sec. 725.521) shall be
modified to determine the amount actually to be paid to a beneficiary.
With respect to any benefits payable for all periods of eligibility
after January 1, 1974, a reduction of the amount of benefits payable
shall be required on account of:
(1) Any compensation or benefits received under any State workers'
compensation law because of death or partial or total disability due to
pneumoconiosis; or
(2) Any compensation or benefits received under or pursuant to any
Federal law including part B of title IV of the Act because of death or
partial or total disability due to pneumoconiosis; or
(3) In the case of benefits to a parent, brother, or sister as a
result of a claim
[[Page 55054]]
filed at any time or benefits payable on a miner's claim which was
filed on or after January 1, 1982, the excess earnings from wages and
from net earnings from self-employment (see Sec. 410.530 of this title)
of such parent, brother, sister, or miner, respectively; or
(4) The fact that a claim for benefits from an additional
beneficiary is filed, or that such claim is effective for a payment
during the month of filing, or a dependent qualifies under this part
for an augmentation portion of a benefit of a miner or widow for a
period in which another dependent has previously qualified for an
augmentation.
(b) An adjustment in a beneficiary's monthly benefit may be
required because an overpayment or underpayment has been made to such
beneficiary (see Secs. 725.540 through 725.546).
(c) A suspension of a beneficiary's monthly benefits may be
required when the Office has information indicating that reductions on
account of excess earnings may reasonably be expected.
(d) Monthly benefit rates are payable in multiples of 10 cents. Any
monthly benefit rate which, after the applicable computations,
augmentations, and reductions is not a multiple of 10 cents, is
increased to the next higher multiple of 10 cents. Since a fraction of
a cent is not a multiple of 10 cents, a benefit rate which contains
such a fraction in the third decimal is raised to the next higher
multiple of 10 cents.
(e) Any individual entitled to a benefit, who is aware of any
circumstances which could affect entitlement to benefits, eligibility
for payment, or the amount of benefits, or result in the termination,
suspension, or reduction of benefits, shall promptly report these
circumstances to the Office. The Office may at any time require an
individual receiving, or claiming entitlement to, benefits, either on
his or her own behalf or on behalf of another, to submit a written
statement giving pertinent information bearing upon the issue of
whether or not an event has occurred which would cause such benefit to
be terminated, or which would subject such benefit to reductions or
suspension under the provisions of the Act. The failure of an
individual to submit any such report or statement, properly executed,
to the Office shall subject such benefit to reductions, suspension, or
termination as the case may be.
Sec. 725.534 Reduction of State benefits.
No benefits under section 415 of part B of title IV of the Act
shall be payable to the residents of a State which, after December 31,
1969, reduces the benefits payable to persons eligible to receive
benefits under section 415 of the Act under State laws applicable to
its general work force with regard to workers' compensation (including
compensation for occupational disease), unemployment compensation, or
disability insurance benefits which are funded in whole or in part out
of employer contributions.
Sec. 725.535 Reductions; receipt of State or Federal benefit.
(a) As used in this section the term ``State or Federal benefit''
means a payment to an individual on account of total or partial
disability or death due to pneumoconiosis only under State or Federal
laws relating to workers' compensation. With respect to a claim for
which benefits are payable for any month between July 1 and December
31, 1973, ``State benefit'' means a payment to a beneficiary made on
account of disability or death due to pneumoconiosis under State laws
relating to workers' compensation (including compensation for
occupational disease), unemployment compensation, or disability
insurance.
(b) Benefit payments to a beneficiary for any month are reduced
(but not below zero) by an amount equal to any payments of State or
Federal benefits received by such beneficiary for such month.
(c) Where a State or Federal benefit is paid periodically but not
monthly, or in a lump sum as a commutation of or a substitution for
periodic benefits, the reduction under this section is made at such
time or times and in such amounts as the Office determines will
approximate as nearly as practicable the reduction required under
paragraph (b) of this section. In making such a determination, a weekly
State or Federal benefit is multiplied by 4\1/3\ and a biweekly benefit
is multiplied by 2\1/6\ to ascertain the monthly equivalent for
reduction purposes.
(d) Amounts paid or incurred or to be incurred by the individual
for medical, legal, or related expenses in connection with this claim
for State or Federal benefits (defined in paragraph (a) of this
section) are excluded in computing the reduction under paragraph (b) of
this section, to the extent that they are consistent with State or
Federal Law. Such medical, legal, or related expenses may be evidenced
by the State or Federal benefit awards, compromise agreement, or court
order in the State or Federal benefit proceedings, or by such other
evidence as the Office may require. Such other evidence may consist of:
(1) A detailed statement by the individual's attorney, physician,
or the employer's insurance carrier; or
(2) Bills, receipts, or canceled checks; or
(3) Other evidence indicating the amount of such expenses; or
(4) Any combination of the foregoing evidence from which the amount
of such expenses may be determinable. Such expenses shall not be
excluded unless established by evidence as required by the Office.
Sec. 725.536 Reductions; excess earnings.
In the case of a surviving parent, brother, or sister, whose claim
was filed at any time, or of a miner whose claim was filed on or after
January 1, 1982, benefit payments are reduced as appropriate by an
amount equal to the deduction which would be made with respect to
excess earnings under the provisions of sections 203(b), (f), (g), (h),
(j), and (l) of the Social Security Act (42 U.S.C. 403(b), (f), (g),
(h), (j), and (l)), as if such benefit payments were benefits payable
under section 202 of the Social Security Act (42 U.S.C. 402) (see
Secs. 404.428 through 404.456 of this title).
Sec. 725.537 Reductions; retroactive effect of an additional claim for
benefits.
Except as provided in Sec. 725.212(b), beginning with the month in
which a person other than a miner files a claim and becomes entitled to
benefits, the benefits of other persons entitled to benefits with
respect to the same miner, are adjusted downward, if necessary, so that
no more than the permissible amount of benefits (the maximum amount for
the number of beneficiaries involved) will be paid.
Sec. 725.538 Reductions; effect of augmentation of benefits based on
subsequent qualification of individual.
(a) Ordinarily, a written request that the benefits of a miner or
surviving spouse be augmented on account of a qualified dependent is
made as part of the claim for benefits. However, it may also be made
thereafter.
(b) In the latter case, beginning with the month in which such a
request is filed on account of a particular dependent and in which such
dependent qualifies for augmentation purposes under this part, the
augmented benefits attributable to other qualified dependents (with
respect to the same miner or surviving spouse), if any, are adjusted
downward, if necessary, so that the permissible amount of augmented
benefits (the maximum amount for the number of dependents involved)
will not be exceeded.
(c) Where, based on the entitlement to benefits of a miner or
surviving spouse,
[[Page 55055]]
a dependent would have qualified for augmentation purposes for a prior
month of such miner's or surviving spouse's entitlement had such
request been filed in such prior month, such request is effective for
such prior month. For any month before the month of filing such
request, however, otherwise correct benefits previously certified by
the Office may not be changed. Rather the amount of the augmented
benefit attributable to the dependent filing such request in the later
month is reduced for each month of the retroactive period to the extent
that may be necessary. This means that for each month of the
retroactive period, the amount payable to the dependent filing the
later augmentation request is the difference, if any, between:
(1) The total amount of augmented benefits certified for payment
for other dependents for that month, and
(2) The permissible amount of augmented benefits (the maximum
amount for the number of dependents involved) payable for the month for
all dependents, including the dependent filing later.
Sec. 725.539 More than one reduction event.
If a reduction for receipt of State or Federal benefits and a
reduction on account of excess earnings are chargeable to the same
month, the benefit for such month is first reduced (but not below zero)
by the amount of the State or Federal benefits, and the remainder of
the benefit for such month, if any, is then reduced (but not below
zero) by the amount of excess earnings chargeable to such month.
Overpayments; Underpayments
Sec. 725.540 Overpayments.
(a) General. As used in this subpart, the term ``overpayment''
includes:
(1) Payment where no amount is payable under this part;
(2) Payment in excess of the amount payable under this part;
(3) A payment under this part which has not been reduced by the
amounts required by the Act (see Sec. 725.533);
(4) A payment under this part made to a resident of a State whose
residents are not entitled to benefits (see Secs. 725.402 and 725.403);
(5) Payment resulting from failure to terminate benefits to an
individual no longer entitled thereto;
(6) Duplicate benefits paid to a claimant on account of concurrent
eligibility under this part and parts 410 or 727 (see Sec. 725.4(d)) of
this title or as provided in Sec. 725.309.
(b) Overpaid beneficiary is living. If the beneficiary to whom an
overpayment was made is living at the time of a determination of such
overpayment, is entitled to benefits at the time of the overpayment, or
at any time thereafter becomes so entitled, no benefit for any month is
payable to such individual, except as provided in paragraph (c) of this
section, until an amount equal to the amount of the overpayment has
been withheld or refunded.
(c) Adjustment by withholding part of a monthly benefit. Adjustment
under paragraph (b) of this section may be effected by withholding a
part of the monthly benefit payable to a beneficiary where it is
determined that:
(1) Withholding the full amount each month would deprive the
beneficiary of income required for ordinary and necessary living
expenses;
(2) The overpayment was not caused by the beneficiary's
intentionally false statement or representation, or willful concealment
of, or deliberate failure to furnish, material information; and
(3) Recoupment can be effected in an amount of not less than $ 10 a
month and at a rate which would not unreasonably extend the period of
adjustment.
(d) Overpaid beneficiary dies before adjustment. If an overpaid
beneficiary dies before adjustment is completed under the provisions of
paragraph (b) of this section, recovery of the overpayment shall be
effected through repayment by the estate of the deceased overpaid
beneficiary, or by withholding of amounts due the estate of such
deceased beneficiary, or both.
Sec. 725.541 Notice of waiver of adjustment or recovery of
overpayment.
Whenever a determination is made that more than the correct amount
of payment has been made, notice of the provisions of section 204(b) of
the Social Security Act regarding waiver of adjustment or recovery
shall be sent to the overpaid individual, to any other individual
against whom adjustment or recovery of the overpayment is to be
effected, and to any operator or carrier which may be liable to such
overpaid individual.
Sec. 725.542 When waiver of adjustment or recovery may be applied.
There shall be no adjustment or recovery of an overpayment in any
case where an incorrect payment has been made with respect to an
individual:
(a) Who is without fault, and where
(b) Adjustment or recovery would either:
(1) Defeat the purpose of title IV of the Act, or
(2) Be against equity and good conscience.
Sec. 725.543 Standards for waiver of adjustment or recovery.
The standards for determining the applicability of the criteria
listed in Sec. 725.542 shall be the same as those applied by the Social
Security Administration under Secs. 404.506 through 404.512 of this
title.
Sec. 725.544 Collection and compromise of claims for overpayment.
(a) General effect of 31 U.S.C. 3711. In accordance with 31 U.S.C.
3711 and applicable regulations, claims by the Office against an
individual for recovery of an overpayment under this part not exceeding
the sum of $ 100,000, exclusive of interest, may be compromised, or
collection suspended or terminated, where such individual or his or her
estate does not have the present or prospective ability to pay the full
amount of the claim within a reasonable time (see paragraph (c) of this
section), or the cost of collection is likely to exceed the amount of
recovery (see paragraph (d) of this section), except as provided under
paragraph (b) of this section.
(b) When there will be no compromise, suspension, or termination of
collection of a claim for overpayment. (1) In any case where the
overpaid individual is alive, a claim for overpayment will not be
compromised, nor will there be suspension or termination of collection
of the claim by the Office, if there is an indication of fraud, the
filing of a false claim, or misrepresentation on the part of such
individual or on the part of any other party having any interest in the
claim.
(2) In any case where the overpaid individual is deceased:
(i) A claim for overpayment in excess of $ 5,000 will not be
compromised, nor will there be suspension or termination of collection
of the claim by the Office if there is an indication of fraud, the
filing of a false claim, or misrepresentation on the part of such
deceased individual; and
(ii) A claim for overpayment, regardless of the amount, will not be
compromised, nor will there be suspension or termination of collection
of the claim by the Office if there is an indication that any person
other than the deceased overpaid individual had a part in the
fraudulent action which resulted in the overpayment.
(c) Inability to pay claim for recovery of overpayment. In
determining whether the overpaid individual is unable to pay a claim
for recovery of an overpayment under this part, the Office shall
consider the individual's age, health, present and potential income
(including inheritance prospects), assets (e.g., real property,
[[Page 55056]]
savings account), possible concealment or improper transfer of assets,
and assets or income of such individual which may be available in
enforced collection proceedings. The Office will also consider
exemptions available to such individual under the pertinent State or
Federal law in such proceedings. In the event the overpaid individual
is deceased, the Office shall consider the available assets of the
estate, taking into account any liens or superior claims against the
estate.
(d) Cost of collection or litigative probabilities. Where the
probable costs of recovering an overpayment under this part would not
justify enforced collection proceedings for the full amount of the
claim, or where there is doubt concerning the Office's ability to
establish its claim as well as the time which it will take to effect
such collection, a compromise or settlement for less than the full
amount may be considered.
(e) Amount of compromise. The amount to be accepted in compromise
of a claim for overpayment under this part shall bear a reasonable
relationship to the amount which can be recovered by enforced
collection proceedings, giving due consideration to the exemption
available to the overpaid individual under State or Federal law and the
time which collection will take.
(f) Payment. Payment of the amount the Office has agreed to accept
as a compromise in full settlement of a claim for recovery of an
overpayment under this part shall be made within the time and in the
manner set by the Office. A claim for the overpayment shall not be
considered compromised or settled until the full payment of the
compromised amount has been made within the time and manner set by the
Office. Failure of the overpaid individual or his or her estate to make
such payment as provided shall result in reinstatement of the full
amount of the overpayment less any amounts paid prior to such default.
Sec. 725.545 Underpayments.
(a) General. As used in this subpart, the term ``underpayment''
includes a payment in an amount less than the amount of the benefit due
for such month, and nonpayment where some amount of such benefits is
payable.
(b) Underpaid individual is living. If an individual to whom an
underpayment was made is living, the deficit represented by such
underpayment shall be paid to such individual either in a single
payment (if he or she is not entitled to a monthly benefit or if a
single payment is requested by the claimant in writing) or by
increasing one or more monthly benefit payments to which such
individual becomes entitled.
(c) Underpaid individual dies before adjustment of underpayment. If
an individual to whom an underpayment was made dies before receiving
payment of the deficit or negotiating the check or checks representing
payment of the deficit, such payment shall be distributed to the living
person (or persons) in the highest order of priority as follows:
(1) The deceased individual's surviving spouse who was either:
(i) Living in the same household with the deceased individual at
the time of such individual's death; or
(ii) In the case of a deceased miner, entitled for the month of
death to black lung benefits as his or her surviving spouse or
surviving divorced spouse.
(2) In the case of a deceased miner or spouse his or her child
entitled to benefits as the surviving child of such miner or surviving
spouse for the month in which such miner or spouse died (if more than
one such child, in equal shares to each such child).
(3) In the case of a deceased miner, his parent entitled to
benefits as the surviving parent of such miner for the month in which
such miner died (if more than one such parent, in equal shares to each
such parent).
(4) The surviving spouse of the deceased individual who does not
qualify under paragraph (c)(1) of this section.
(5) The child or children of the deceased individual who do not
qualify under paragraph (c)(2) of this section (if more than one such
child, in equal shares to each such child).
(6) The parent or parents of the deceased individual who do not
qualify under paragraph (c)(3) of this section (if more than one such
parent, in equal shares to each such parent).
(7) The legal representative of the estate of the deceased
individual as defined in paragraph (e) of this section.
(d) Deceased beneficiary. In the event that a person, who is
otherwise qualified to receive payments as the result of a deficit
caused by an underpayment under the provisions of paragraph (c) of this
section, dies before receiving payment or before negotiating the check
or checks representing such payment, his or her share of the
underpayment shall be divided among the remaining living person(s) in
the same order or priority. In the event that there is (are) no other
such person(s), the underpayment shall be paid to the living person(s)
in the next lower order of priority under paragraph (c) of this
section.
(e) Definition of legal representative. The term ``legal
representative,'' for the purpose of qualifying for receipt of an
underpayment, generally means the executor or the administrator of the
estate of the deceased beneficiary. However, it may also include an
individual, institution or organization acting on behalf of an
unadministered estate, provided the person can give the Office good
acquittance (as defined in paragraph (f) of this section). The
following persons may qualify as legal representative for purposes of
this section, provided they can give the Office good acquittance:
(1) A person who qualifies under a State's ``small estate''
statute; or
(2) A person resident in a foreign country who under the laws and
customs of that country, has the right to receive assets of the estate;
or
(3) A public administrator; or
(4) A person who has the authority under applicable law to collect
the assets of the estate of the deceased beneficiary.
(f) Definition of ``good acquittance.'' A person is considered to
give the Office good acquittance when payment to that person will
release the Office from further liability for such payment.
Sec. 725.546 Relation to provisions for reductions or increases.
The amount of an overpayment or an underpayment is the difference
between the amount to which the beneficiary was actually entitled and
the amount paid. Overpayment and underpayment simultaneously
outstanding against the same beneficiary shall first be adjusted
against one another before adjustment pursuant to the other provisions
of this subpart.
Sec. 725.547 Applicability of overpayment and underpayment provisions
to operator or carrier.
(a) The provisions of this subpart relating to overpayments and
underpayments shall be applicable to overpayments and underpayments
made by responsible operators or their insurance carriers, as
appropriate.
(b) No operator or carrier may recover, or make an adjustment of,
an overpayment without prior application to, and approval by, the
Office which shall exercise full supervisory authority over the
recovery or adjustment of all overpayments.
Sec. 725.548 Procedures applicable to overpayments and underpayments.
(a) In any case involving either overpayments or underpayments, the
Office may take any necessary action, and district directors may issue
[[Page 55057]]
appropriate orders to protect the rights of the parties.
(b) Disputes arising out of orders so issued shall be resolved by
the procedures set out in subpart F of this part.
Subpart I--Enforcement of Liability; Reports
Sec. 725.601 Enforcement generally.
(a) The Act, together with certain incorporated provisions from the
Longshoremen's and Harbor Workers' Compensation Act, contains a number
of provisions which subject an operator or other employer, claimants
and others to penalties for failure to comply with certain provisions
of the Act, or failure to commence and continue prompt periodic
payments to a beneficiary.
(b) It is the policy and intent of the Department to vigorously
enforce the provisions of this part through the use of the remedies
provided by the Act. Accordingly, if an operator refuses to pay
benefits with respect to a claim for which the operator has been
adjudicated liable, the Director shall invoke and execute the lien on
the property of the operator as described in Sec. 725.603. Enforcement
of this lien shall be pursued in an appropriate U.S. district court. If
the Director determines that the remedy provided by Sec. 725.603 may
not be sufficient to guarantee the continued compliance with the terms
of an award or awards against the operator, the Director shall in
addition seek an injunction in the U.S. district court to prohibit
future noncompliance by the operator and such other relief as the court
considers appropriate (see Sec. 725.604). If an operator unlawfully
suspends or terminates the payment of benefits to a claimant, the
district director shall declare the award in default and proceed in
accordance with Sec. 725.605. In all cases payments in addition to
compensation (see Sec. 725.607) and interest (see Sec. 725.608) shall
be sought by the Director or awarded by the district director.
(c) In certain instances the remedies provided by the Act are
concurrent; that is, more than one remedy might be appropriate in any
given case. In such a case, the Director shall select the remedy or
remedies appropriate for the enforcement action. In making this
selection, the Director shall consider the best interests of the
claimant as well as those of the fund.
Sec. 725.602 Reimbursement of the fund.
(a) In any case in which the fund has paid benefits, including
medical benefits, on behalf of an operator or other employer which is
determined liable therefore, or liable for a part thereof, such
operator or other employer shall simultaneously with the first payment
of benefits made to the beneficiary, reimburse the fund (with interest)
for the full amount of all benefit payments made by the fund with
respect to the claim.
(b) In any case where benefit payments have been made by the fund,
the fund shall be subrogated to the rights of the beneficiary. The
Secretary of Labor may, as appropriate, exercise such subrogation
rights.
Sec. 725.603 Payments by the fund on behalf of an operator; liens.
(a) If an amount is paid out of the fund to an individual entitled
to benefits under this part or part 727 of this subchapter (see
Sec. 725.4(d)) on behalf of an operator or other employer which is or
was required to pay or secure the payment of all or a portion of such
amount (see Sec. 725.522), the operator or other employer shall be
liable to the United States for repayment to the fund of the amount of
benefits properly attributable to such operator or other employer.
(b) If an operator or other employer liable to the fund refuses to
pay, after demand, the amount of such liability, there shall be a lien
in favor of the United States upon all property and rights to property,
whether real or personal, belonging to such operator or other employer.
The lien arises on the date on which such liability is finally
determined, and continues until it is satisfied or becomes
unenforceable by reason of lapse of time. (c)(1) Except as otherwise
provided under this section, the priority of the lien shall be
determined in the same manner as under section 6323 of the Internal
Revenue Code (26 U.S.C.).
(2) In the case of a bankruptcy or insolvency proceeding, the lien
imposed under this section shall be treated in the same manner as a
lien for taxes due and owing to the United States for purposes of the
Bankruptcy Act or section 3466 of the Revised Statutes (31 U.S.C. 191).
(3) For purposes of applying section 6323(a) of the Internal
Revenue Code (26 U.S.C.) to determine the priority between the lien
imposed under this section and the Federal tax lien, each lien shall be
treated as a judgment lien arising as of the time notice of such lien
is filed.
(4) For purposes of the section, notice of the lien imposed
hereunder shall be filed in the same manner as under section 6323(f)
(disregarding paragraph (4) thereof) and (g) of the Internal Revenue
Code (26 U.S.C.).
(5) In any case where there has been a refusal or neglect to pay
the liability imposed under this section, the Secretary of Labor may
bring a civil action in a district court of the United States to
enforce the lien of the United States under this section with respect
to such liability or to subject any property, of whatever nature, of
the operator, or in which it has any right, title, or interest, to the
payment of such liability.
(6) The liability imposed by this paragraph may be collected at a
proceeding in court if the proceeding is commenced within 6 years after
the date upon which the liability was finally determined, or prior to
the expiration of any period for collection agreed upon in writing by
the operator and the United States before the expiration of such 6-year
period. This period of limitation shall be suspended for any period
during which the assets of the operator are in the custody or control
of any court of the United States, or of any State, or the District of
Columbia, and for 6 months thereafter, and for any period during which
the operator is outside the United States if such period of absence is
for a continuous period of at least 6 months.
Sec. 725.604 Enforcement of final awards.
Notwithstanding the provisions of Sec. 725.603, if an operator or
other employer or its officers or agents fails to comply with an order
awarding benefits that has become final, any beneficiary of such award
or the district director may apply for the enforcement of the order to
the Federal district court for the judicial district in which the
injury occurred (or to the U.S. District Court for the District of
Columbia if the injury occurred in the District). If the court
determines that the order was made and served in accordance with law,
and that such operator or other employer or its officers or agents have
failed to comply therewith, the court shall enforce obedience to the
order by writ of injunction or by other proper process, mandatory or
otherwise, to enjoin upon such operator or other employer and its
officers or agents compliance with the order.
Sec. 725.605 Defaults.
(a) Except as is otherwise provided in this part, no suspension,
termination or other failure to pay benefits awarded to a claimant is
permitted. If an employer found liable for the payment of such benefits
fails to make such payments within 30 days after any date on which such
benefits are due and payable, the person to whom such benefits are
payable may, within one year after such default, make application to
the district
[[Page 55058]]
director for a supplementary order declaring the amount of the default.
(b) If after investigation, notice and hearing as provided in
subparts E and F of this part, a default is found, the district
director or the administrative law judge, if a hearing is requested,
shall issue a supplementary order declaring the amount of the default,
if any. In cases where a lump-sum award has been made, if the payment
in default is an installment, the district director or administrative
law judge, may, in his or her discretion, declare the whole of the
award as the amount in default. The applicant may file a certified copy
of such supplementary order with the clerk of the Federal district
court for the judicial district in which the operator has its principal
place of business or maintains an office or for the judicial district
in which the injury occurred. In case such principal place of business
or office is in the District of Columbia, a copy of such supplementary
order may be filed with the clerk of the U.S. District Court for the
District of Columbia. Such supplementary order shall be final and the
court shall, upon the filing of the copy, enter judgment for the amount
declared in default by the supplementary order if such supplementary
order is in accordance with law. Review of the judgment may be had as
in civil suits for damages at common law. Final proceedings to execute
the judgment may be had by writ of execution in the form used by the
court in suits at common law in actions of assumpsit. No fee shall be
required for filing the supplementary order nor for entry of judgment
thereon, and the applicant shall not be liable for costs in a
proceeding for review of the judgment unless the court shall otherwise
direct. The court shall modify such judgment to conform to any later
benefits order upon presentation of a certified copy thereof to the
court.
(c) In cases where judgment cannot be satisfied by reason of the
employer's insolvency or other circumstances precluding payment, the
district director shall make payment from the fund, and in addition,
provide any necessary medical, surgical, and other treatment required
by subpart J of this part. A defaulting employer shall be liable to the
fund for payment of the amounts paid by the fund under this section;
and for the purpose of enforcing this liability, the fund shall be
subrogated to all the rights of the person receiving such payments or
benefits.
Sec. 725.606 Security for the payment of benefits.
(a) Following the issuance of an effective order by a district
director (see Sec. 725.418), administrative law judge (see
Sec. 725.479), Benefits Review Board, or court that requires the
payment of benefits by an operator that has failed to secure the
payment of benefits in accordance with section 423 of the Act and
Sec. 726.4 of this subchapter, or by a coal mine construction or
transportation employer, the Director may request that the operator
secure the payment of all benefits ultimately payable on the claim.
Such operator or other employer shall thereafter immediately secure the
payment of benefits in accordance with the provisions of this section,
and provide proof of such security to the Director. Such security may
take the form of an indemnity bond, a deposit of cash or negotiable
securities in compliance with Secs. 726.106(c) and 726.107 of this
subchapter, or any other form acceptable to the Director.
(b) The amount of security initially required by this section shall
be determined as follows:
(1) In a case involving an operator subject to section 423 of the
Act and Sec. 726.4 of this subchapter, the amount of the security shall
not be less than $175,000, and may be a higher amount as determined by
the Director, taking into account the life expectancies of the claimant
and any dependents using the most recent life expectancy tables
published by the Social Security Administration; or
(2) In a case involving a coal mine construction or transportation
employer, the amount of the security shall be determined by the
Director, taking into account the life expectancies of the claimant and
any dependents using the most recent life expectancy tables published
by the Social Security Administration.
(c) If the operator or other employer fails to provide proof of
such security to the Director within 30 days of its receipt of the
Director's request to secure the payment of benefits issued under
paragraph (a) of this section, the appropriate adjudication officer
shall issue an order requiring the operator or other employer to make a
deposit of negotiable securities with a Federal Reserve Bank in the
amount required by paragraph (b). Such securities shall comply with the
requirements of sections 726.106(c) and 726.107 of this subchapter. In
a case in which the effective order was issued by a district director,
the district director shall be considered the appropriate adjudication
officer. In any other case, the administrative law judge who issued the
most recent decision in the case, or such other administrative law
judge as the Chief Administrative Law Judge shall designate, shall be
considered the appropriate adjudication officer, and shall issue an
order under this paragraph on motion of the Director. The
administrative law judge shall have jurisdiction to issue an order
under this paragraph notwithstanding the pendency of an appeal of the
award of benefits with the Benefits Review Board or court.
(d) An order issued under this section shall be considered
effective when issued. Disputes regarding such orders shall be resolved
in accordance with subpart F of this part.
(e) Notwithstanding any further review of the order in accordance
with subpart F of this part, if an operator or other employer subject
to an order issued under this section fails to comply with such order,
the appropriate adjudication officer shall certify such non-compliance
to the appropriate United States district court in accordance with
Sec. 725.351(c).
(f) Security posted in accordance with this section may be used to
make payment of benefits that become due with respect to the claim in
accordance with Sec. 725.502. In the event that either the order
awarding compensation or the order issued under this section is vacated
or reversed, the operator or other employer may apply to the
appropriate adjudication officer for an order authorizing the return of
any amounts deposited with the United States Treasurer and not yet
disbursed, and such application shall be granted. If at any time the
Director determines that additional security is required beyond that
initially required by paragraph (b) of this section, he may request the
operator or other employer to increase the amount. Such request shall
be treated as if it were issued under paragraph (a) of this section.
(g) If a coal mine construction or transportation employer fails to
comply with an order issued under paragraph (c), and such employer is a
corporation, the provisions of Sec. 725.609 shall be applicable to the
president, secretary, and treasurer of such employer.
Sec. 725.607 Payments in addition to compensation.
(a) If any benefits payable under the terms of an award by a
district director (Sec. 725.419(d)), a decision and order filed and
served by an administrative law judge (Sec. 725.478), or a decision
filed by the Board or a U.S. court of appeals, are not paid by an
operator or other employer ordered to make such payments within 10 days
after such
[[Page 55059]]
payments become due, there shall be added to such unpaid benefits an
amount equal to 20 percent thereof, which shall be paid to the claimant
at the same time as, but in addition to, such benefits, unless review
of the order making such award is sought as provided in section 21 of
the LHWCA and an order staying payments has been issued.
(b) If, on account of an operator's or other employer's failure to
pay benefits as provided in paragraph (a) of this section, benefit
payments are made by the fund, the eligible claimant shall nevertheless
be entitled to receive such additional compensation to which he or she
may be eligible under paragraph (a) of this section, with respect to
all amounts paid by the fund on behalf of such operator or other
employer.
(c) The fund shall not be liable for payments in addition to
compensation under any circumstances.
Sec. 725.608 Interest.
(a)(1) In any case in which an operator fails to pay benefits that
are due (Sec. 725.502), the beneficiary shall also be entitled to
simple annual interest, computed from the date on which the benefits
were due. The interest shall be computed through the date on which the
operator paid the benefits, except that the beneficiary shall not be
entitled to interest for any period following the date on which the
beneficiary received payment of any benefits from the fund pursuant to
Sec. 725.522.
(2) In any case in which an operator is liable for the payment of
retroactive benefits, the beneficiary shall also be entitled to simple
annual interest on such benefits, computed from 30 days after the date
of the first determination that such an award should be made. The first
determination that such an award should be made may be a district
director's initial determination of entitlement, an award made by an
administrative law judge or a decision by the Board or a court,
whichever is the first such determination of entitlement made upon the
claim.
(3) In any case in which an operator is liable for the payment of
additional compensation (Sec. 725.607), the beneficiary shall also be
entitled to simple annual interest computed from the date upon which
the beneficiary's right to additional compensation first arose.
(4) In any case in which an operator is liable for the payment of
medical benefits, the beneficiary or medical provider to whom such
benefits are owed shall also be entitled to simple annual interest,
computed from the date upon which the services were rendered, or from
30 days after the date of the first determination that the miner is
generally entitled to medical benefits, whichever is later. The first
determination that the miner is generally entitled to medical benefits
may be a district director's initial determination of entitlement, an
award made by an administrative law judge or a decision by the Board or
a court, whichever is the first such determination of general
entitlement made upon the claim. The interest shall be computed through
the date on which the operator paid the benefits, except that the
beneficiary shall not be entitled to interest for any period following
the date on which the beneficiary received payment of any benefits from
the fund pursuant to Sec. 725.522 or subpart I of this part.
(b) If an operator or other employer fails or refuses to pay any or
all benefits due pursuant to an award of benefits or an initial
determination of eligibility made by the district director and the fund
undertakes such payments, such operator or other employer shall be
liable to the fund for simple annual interest on all payments made by
the fund for which such operator is determined liable, computed from
the first date on which such benefits are paid by the fund, in addition
to such operator's liability to the fund, as is otherwise provided in
this part. Interest payments owed pursuant to this paragraph shall be
paid directly to the fund.
(c) In any case in which an operator is liable for the payment of
an attorney's fee pursuant to Sec. 725.367, and the attorney's fee is
payable because the award of benefits has become final, the attorney
shall also be entitled to simple annual interest, computed from the
date on which the attorney's fee was awarded. The interest shall be
computed through the date on which the operator paid the attorney's
fee.
(d) The rates of interest applicable to paragraphs (a), (b), and
(c) of this section shall be computed as follows:
(1) For all amounts outstanding prior to January 1, 1982, the rate
shall be 6% simple annual interest;
(2) For all amounts outstanding for any period during calendar year
1982, the rate shall be 15% simple annual interest; and
(3) For all amounts outstanding during any period after calendar
year 1982, the rate shall be simple annual interest at the rate
established by section 6621 of the Internal Revenue Code (26 U.S.C.)
which is in effect for such period.
(e) The fund shall not be liable for the payment of interest under
any circumstances, other than the payment of interest on advances from
the United States Treasury as provided by section 9501(c) of the
Internal Revenue Code (26 U.S.C.).
Sec. 725.609 Enforcement against other persons.
In any case in which an award of benefits creates obligations on
the part of an operator or insurer that may be enforced under the
provisions of this subpart, such obligations may also be enforced, in
the discretion of the Secretary or district director, as follows:
(a) In a case in which the operator is a sole proprietorship or
partnership, against any person who owned, or was a partner in, such
operator during any period commencing on or after the date on which the
miner was last employed by the operator;
(b) In a case in which the operator is a corporation that failed to
secure its liability for benefits in accordance with section 423 of the
Act and Sec. 726.4 of this subchapter, and the operator has not secured
its liability for the claim in accordance with Sec. 725.606, against
any person who served as the president, secretary, or treasurer of such
corporation during any period commencing on or after the date on which
the miner was last employed by the operator;
(c) In a case in which the operator is no longer capable of
assuming its liability for the payment of benefits (Sec. 725.494(e)),
against any operator which became a successor operator with respect to
the liable operator (Sec. 725.492) after the date on which the claim
was filed, beginning with the most recent such successor operator;
(d) In a case in which the operator is no longer capable of
assuming its liability for the payment of benefits (Sec. 725.494(e)),
and such operator was a subsidiary of a parent company or a product of
a joint venture, or was substantially owned or controlled by another
business entity, against such parent entity, any member of such joint
venture, or such controlling business entity; or
(e) Against any other person who has assumed or succeeded to the
obligations of the operator or insurer by operation of any state or
federal law, or by any other means.
Sec. 725.620 Failure to secure benefits; other penalties.
(a) If an operator fails to discharge its insurance obligations
under the Act, the provisions of subpart D of part 726 of this
subchapter shall apply.
(b) Any employer who knowingly transfers, sells, encumbers,
assigns, or in
[[Page 55060]]
any manner disposes of, conceals, secrets, or destroys any property
belonging to such employer, after one of its employees has been injured
within the purview of the Act, and with intent to avoid the payment of
benefits under the Act to such miner or his or her dependents, shall be
guilty of a misdemeanor and, upon conviction thereof, shall be punished
by a fine of not more than $1,000, or by imprisonment for not more than
one year, or by both. In any case where such employer is a corporation,
the president, secretary, and treasurer thereof shall be also severally
liable for such penalty or imprisonment as well as jointly liable with
such corporation for such fine.
(c) No agreement by a miner to pay any portion of a premium paid to
a carrier by such miner's employer or to contribute to a benefit fund
or department maintained by such employer for the purpose of providing
benefits or medical services and supplies as required by this part
shall be valid; and any employer who makes a deduction for such purpose
from the pay of a miner entitled to benefits under the Act shall be
guilty of a misdemeanor and upon conviction thereof shall be punished
by a fine of not more than $1,000.
(d) No agreement by a miner to waive his or her right to benefits
under the Act and the provisions of this part shall be valid.
(e) This section shall not affect any other liability of the
employer under this part.
Sec. 725.621 Reports.
(a) Upon making the first payment of benefits and upon suspension,
reduction, or increase of payments, the operator or other employer
responsible for making payments shall immediately notify the district
director of the action taken, in accordance with a form prescribed by
the Office.
(b) Within 16 days after final payment of benefits has been made by
an employer, such employer shall so notify the district director, in
accordance with a form prescribed by the Office, stating that such
final payment, has been made, the total amount of benefits paid, the
name of the beneficiary, and such other information as the Office deems
pertinent.
(c) The Director may from time to time prescribe such additional
reports to be made by operators, other employers, or carriers as the
Director may consider necessary for the efficient administration of the
Act.
(d) Any employer who fails or refuses to file any report required
of such employer under this section shall be subject to a civil penalty
not to exceed $500 for each failure or refusal, which penalty shall be
determined in accordance with the procedures set forth in subpart D of
part 726 of this subchapter, as appropriate. The maximum penalty
applicable to any violation of this paragraph that takes place after
[effective date of the final rule] shall be $550.
(e) No request for information or response to such request shall be
considered a report for purposes of this section or the Act, unless it
is so designated by the Director or by this section.
Subpart J--Medical Benefits and Vocational Rehabilitation
Sec. 725.701 Availability of medical benefits.
(a) A miner who is determined to be eligible for benefits under
this part or part 727 of this subchapter (see Sec. 725.4(d)) is
entitled to medical benefits as set forth in this subpart as of the
date of his or her claim, but in no event before January 1, 1974. No
medical benefits shall be provided to the survivor or dependent of a
miner under this part.
(b) A responsible operator, other employer, or where there is
neither, the fund, shall furnish a miner entitled to benefits under
this part with such medical, surgical, and other attendance and
treatment, nursing and hospital services, medicine and apparatus, and
any other medical service or supply, for such periods as the nature of
the miner's pneumoconiosis and disability requires.
(c) The medical benefits referred to in paragraphs (a) and (b) of
this section shall include palliative measures useful only to prevent
pain or discomfort associated with the miner's pneumoconiosis or
attendant disability.
(d) The costs recoverable under this subpart shall include the
reasonable cost of travel necessary for medical treatment (to be
determined in accordance with prevailing United States government
mileage rates) and the reasonable documented cost to the miner or
medical provider incurred in communicating with the employer, carrier,
or district director on matters connected with medical benefits.
(e) If a miner receives a medical service or supply, as described
in this section, for any pulmonary disorder, there shall be a
rebuttable presumption that the disorder is caused or aggravated by the
miner's pneumoconiosis. The party liable for the payment of benefits
may rebut the presumption by producing credible evidence that the
medical service or supply provided was not for a covered pulmonary
disorder as defined in Sec. 718.201 of this subchapter, or was beyond
that necessary to effectively treat a covered disorder, or was not for
a pulmonary disorder at all.
(f) Evidence that the miner does not have pneumoconiosis or is not
totally disabled by pneumoconiosis arising out of coal mine employment
is insufficient to defeat a request for coverage of any medical service
or supply under this subpart. In determining whether the treatment is
compensable, the opinion of the miner's treating physician may be
entitled to controlling weight pursuant to Sec. 718.104(d). A finding
that a medical service or supply is not covered under this subpart
shall not otherwise affect the miner's entitlement to benefits.
Sec. 725.702 Claims for medical benefits only under section 11 of the
Reform Act.
(a) Section 11 of the Reform Act directs the Secretary of Health,
Education and Welfare to notify each miner receiving benefits under
part B of title IV of the Act that he or she may file a claim for
medical treatment benefits described in this subpart. Section
725.308(b) provides that a claim for medical treatment benefits shall
be filed on or before December 31, 1980, unless the period is enlarged
for good cause shown. This section sets forth the rules governing the
processing, adjudication, and payment of claims filed under section 11.
(b) (1) A claim filed pursuant to the notice described in paragraph
(a) of this section shall be considered a claim for medical benefits
only, and shall be filed, processed, and adjudicated in accordance with
the provisions of this part, except as provided in this section. While
a claim for medical benefits must be treated as any other claim filed
under part C of title IV of the Act, the Department shall accept the
Social Security Administration's finding of entitlement as its initial
determination.
(2) In the case of a part B beneficiary whose coal mine employment
terminated before January 1, 1970, the Secretary shall make an
immediate award of medical benefits. Where the part B beneficiary's
coal mine employment terminated on or after January 1, 1970, the
Secretary shall immediately authorize the payment of medical benefits
and thereafter inform the responsible operator, if any, of the
operator's right to contest the claimant's entitlement for medical
benefits.
(c) A miner on whose behalf a claim is filed under this section
(see Sec. 725.301) must have been alive on March 1, 1978, in order for
the claim to be considered.
(d) The criteria contained in subpart C of part 727 of this
subchapter (see
[[Page 55061]]
Sec. 725.4(d)) are applicable to claims for medical benefits filed
under this section.
(e) No determination made with respect to a claim filed under this
section shall affect any determination previously made by the Social
Security Administration. The Social Security Administration may,
however, reopen a previously approved claim if the conditions set forth
in Sec. 410.672(c) of this chapter are present. These conditions are
generally limited to fraud or concealment.
(f) If medical benefits are awarded under this section, such
benefits shall be payable by a responsible coal mine operator (see
subpart G of this part), if the miner's last employment occurred on or
after January 1, 1970, and in all other cases by the fund. An operator
which may be required to provide medical treatment benefits to a miner
under this section shall have the right to participate in the
adjudication of the claim as is otherwise provided in this part.
(g) Any miner whose coal mine employment terminated after January
1, 1970, may be required to submit to a medical examination requested
by an identified operator. The unreasonable refusal to submit to such
an examination shall have the same consequences as are provided under
Sec. 725.414.
(h) If a miner is determined eligible for medical benefits in
accordance with this section, such benefits shall be provided from the
date of filing, except that such benefits may also include payments for
any unreimbursed medical treatment costs incurred personally by such
miner during the period from January 1, 1974, to the date of filing
which are attributable to medical care required as a result of the
miner's total disability due to pneumoconiosis. No reimbursement for
health insurance premiums, taxes attributable to any public health
insurance coverage, or other deduction or payments made for the purpose
of securing third party liability for medical care costs is authorized
by this section. If a miner seeks reimbursement for medical care costs
personally incurred before the filing of a claim under this section,
the district director shall require documented proof of the nature of
the medical service provided, the identity of the medical provider, the
cost of the service, and the fact that the cost was paid by the miner,
before reimbursement for such cost may be awarded.
Sec. 725.703 Physician defined.
The term ``physician'' includes only doctors of medicine (MD) and
osteopathic practitioners within the scope of their practices as
defined by State law. No treatment or medical services performed by any
other practitioner of the healing arts is authorized by this part,
unless such treatment or service is authorized and supervised both by a
physician as defined in this section and the district director.
Sec. 725.704 Notification of right to medical benefits; authorization
of treatment.
(a) Upon notification to a miner of such miner's entitlement to
benefits, the Office shall provide the miner with a list of authorized
treating physicians and medical facilities in the area of the miner's
residence. The miner may select a physician from this list or may
select another physician with approval of the Office. Where emergency
services are necessary and appropriate, authorization by the Office
shall not be required.
(b) The Office may, on its own initiative, or at the request of a
responsible operator, order a change of physicians or facilities, but
only where it has been determined that the change is desirable or
necessary in the best interest of the miner. The miner may change
physicians or facilities subject to the approval of the Office.
(c) If adequate treatment cannot be obtained in the area of the
claimant's residence, the Office may authorize the use of physicians or
medical facilities outside such area as well as reimbursement for
travel expenses and overnight accommodations.
Sec. 725.705 Arrangements for medical care.
(a) Operator liability. If an operator has been determined liable
for the payment of benefits to a miner, the Office shall notify such
operator or insurer of the names, addresses, and telephone numbers of
the authorized providers of medical benefits chosen by an entitled
miner, and shall require the operator or insurer to:
(1) Notify the miner and the providers chosen that such operator
will be responsible for the cost of medical services provided to the
miner on account of the miner's total disability due to pneumoconiosis;
(2) Designate a person or persons with decisionmaking authority
with whom the Office, the miner and authorized providers may
communicate on matters involving medical benefits provided under this
subpart and notify the Office, miner and providers of such designation;
(3) Make arrangements for the direct reimbursement of providers for
their services.
(b) Fund liability. If there is no operator found liable for the
payment of benefits, the Office shall make necessary arrangements to
provide medical care to the miner, notify the miner and medical care
facility selected of the liability of the fund, designate a person or
persons with whom the miner or provider may communicate on matters
relating to medical care, and make arrangements for the direct
reimbursement of the medical provider.
Sec. 725.706 Authorization to provide medical services.
(a) Except as provided in paragraph (b) of this section, medical
services from an authorized provider which are payable under
Sec. 725.701 shall not require prior approval of the Office or the
responsible operator.
(b) Except where emergency treatment is required, prior approval of
the Office or the responsible operator shall be obtained before any
hospitalization or surgery, or before ordering an apparatus for
treatment where the purchase price exceeds $300. A request for approval
of non-emergency hospitalization or surgery shall be acted upon
expeditiously, and approval or disapproval will be given by telephone
if a written response cannot be given within 7 days following the
request. No employee of the Department of Labor, other than a district
director or the Chief, Branch of Medical Analysis and Services, DCMWC,
is authorized to approve a request for hospitalization or surgery by
telephone.
(c) Payment for medical services, treatment, or an apparatus shall
be made at no more than the rate prevailing in the community in which
the providing physician, medical facility or supplier is located.
Sec. 725.707 Reports of physicians and supervision of medical care.
(a) Within 30 days following the first medical or surgical
treatment provided under Sec. 725.701, the treating physician or
facility shall furnish to the Office and the responsible operator, if
any, a report of such treatment.
(b) In order to permit continuing supervision of the medical care
provided to the miner with respect to the necessity, character and
sufficiency of any medical care furnished or to be furnished, the
treating physician, facility, employer or carrier shall provide such
reports in addition to those required by paragraph (a) of this section
as the Office may from time to time require. Within the discretion of
[[Page 55062]]
the district director, payment may be refused to any medical provider
who fails to submit any report required by this section.
Sec. 725.708 Disputes concerning medical benefits.
(a) Whenever a dispute develops concerning medical services under
this part, the district director shall attempt to informally resolve
such dispute. In this regard the district director may, on his or her
own initiative or at the request of the responsible operator order the
claimant to submit to an examination by a physician selected by the
district director.
(b) If no informal resolution is accomplished, the district
director shall refer the case to the Office of Administrative Law
Judges for hearing in accordance with this part. Any such hearing shall
be scheduled at the earliest possible time and shall take precedence
over all other requests for hearing except for prior requests for
hearing arising under this section and as provided by Sec. 727.405 of
this subchapter (see Sec. 725.4(d)). During the pendency of such
adjudication, the Director may order the payment of medical benefits
prior to final adjudication under the same conditions applicable to
benefits awarded under Sec. 725.522.
(c) In the development or adjudication of a dispute over medical
benefits, the adjudication officer is authorized to take whatever
action may be necessary to protect the health of a totally disabled
miner.
(d) Any interested medical provider may, if appropriate, be made a
party to a dispute over medical benefits.
Sec. 725.710 Objective of vocational rehabilitation.
The objective of vocational rehabilitation is the return of a miner
who is totally disabled for work in or around a coal mine and who is
unable to utilize those skills which were employed in the miner's coal
mine employment to gainful employment commensurate with such miner's
physical impairment. This objective may be achieved through a program
of re-evaluation and redirection of the miner's abilities, or
retraining in another occupation, and selective job placement
assistance.
Sec. 725.711 Requests for referral to vocational rehabilitation
assistance.
Each miner who has been determined entitled to receive benefits
under part C of title IV of the Act shall be informed by the OWCP of
the availability and advisability of vocational rehabilitation
services. If such miner chooses to avail himself or herself of
vocational rehabilitation, his or her request shall be processed and
referred by OWCP vocational rehabilitation advisors pursuant to the
provisions of Secs. 702.501 through 702.508 of this chapter as is
appropriate.
5. Part 726 is proposed to be revised as follows:
PART 726--BLACK LUNG BENEFITS; REQUIREMENTS FOR COAL MINE
OPERATOR'S INSURANCE
Subpart A--General
Sec.
726.1 Statutory insurance requirements for coal mine operators.
726.2 Purpose and scope of this part.
726.3 Relationship of this part to other parts in this subchapter.
726.4 Who must obtain insurance coverage.
726.5 Effective date of insurance coverage.
726.6 The Office of Workers' Compensation Programs.
726.7 Forms, submission of information.
726.8 Definitions.
Subpart B--Authorization of Self-Insurers
726.101 Who may be authorized to self-insure.
726.102 Application for authority to become a self-insurer; how
filed; information to be submitted.
726.103 Application for authority to self-insure; effect of
regulations contained in this part.
726.104 Action by the Office upon application of operator.
726.105 Fixing the amount of security.
726.106 Type of security.
726.107 Deposits of negotiable securities with Federal Reserve
banks or the Treasurer of the United States; authority to sell such
securities; interest thereon.
726.108 Withdrawal of negotiable securities.
726.109 Increase or reduction in the amount of security.
726.110 Filing of agreement and undertaking.
726.111 Notice of authorization to self-insure.
726.112 Reports required of self-insurer; examination of accounts
of self-insurer.
726.113 Disclosure of confidential information.
726.114 Period of authorization as self-insurer; reauthorization.
726.115 Revocation of authorization to self-insure.
Subpart C--Insurance Contracts
726.201 Insurance contracts--generally.
726.202 Who may underwrite an operator's liability.
726.203 Federal Coal Mine Health and Safety Act endorsement.
726.204 Statutory policy provisions.
726.205 Other forms of endorsement and policies.
726.206 Terms of policies.
726.207 Discharge by the carrier of obligations and duties of
operator.
Reports by Carrier
726.208 Report by carrier of issuance of policy or endorsement.
726.209 Report; by whom sent.
726.210 Agreement to be bound by report.
726.211 Name of one employer only shall be given in each report.
726.212 Notice of cancellation.
726.213 Reports by carriers concerning the payment of benefits.
Subpart D--Civil Money Penalties
726.300 Purpose and Scope.
726.301 Definitions.
726.302 Determination of penalty.
726.303 Notification; investigation.
726.304 Notice of initial assessment.
726.305 Contents of notice.
726.306 Finality of administrative assessment.
726.307 Form of notice of contest and request for hearing.
726.308 Service and computation of time.
726.309 Referral to the Office of Administrative Law Judges.
726.310 Appointment of Administrative Law Judge and notification of
hearing date.
726.311 Evidence.
726.312 Burdens of proof.
726.313 Decision and Order of Administrative Law Judge.
726.314 Review by the Secretary.
726.315 Contents.
726.316 Filing and Service.
726.317 Discretionary Review.
726.318 Final decision of the Secretary.
726.319 Retention of official record.
726.320 Collection and recovery of penalty.
Authority: 5 U.S.C. 301, Reorganization Plan No. 6 of 1950, 15
FR 3174, 30 U.S.C. 901 et seq., 902(f), 925, 932, 933, 934, 936,
945; 33 U.S.C. 901 et seq., Secretary's Order 7-87, 52 FR 48466,
Employment Standards Order No. 90-02.
Subpart A--General
Sec. 726.1 Statutory insurance requirements for coal mine operators.
Section 423 of title IV of the Federal Coal Mine Health and Safety
Act as amended (hereinafter the Act) requires each coal mine operator
who is operating or has operated a coal mine in a State which is not
included in the list published by the Secretary (see part 722 of this
subchapter) to secure the payment of benefits for which he may be found
liable under section 422 of the Act and the provisions of this
subchapter by either:
(a) Qualifying as a self-insurer, or
(b) By subscribing to and maintaining in force a commercial
insurance contract (including a policy or contract procured from a
State agency).
Sec. 726.2 Purpose and scope of this part.
(a) This part provides rules directing and controlling the
circumstances under which a coal mine operator shall fulfill his
insurance obligations under the Act.
[[Page 55063]]
(b) This subpart A sets forth the scope and purpose of this part
and generally describes the statutory framework within which this part
is operative.
(c) Subpart B of this part sets forth the criteria a coal mine
operator must meet in order to qualify as a self-insurer.
(d) Subpart C of this part sets forth the rules and regulations of
the Secretary governing contracts of insurance entered into by coal
operators and commercial insurance sources for the payment of black
lung benefits under part C of the Act.
(e) Subpart D of this part sets forth the rules governing the
imposition of civil money penalties on coal mine operators that fail to
secure their liability under the Act.
Sec. 726.3 Relationship of this part to other parts in this
subchapter.
(a) This part 726 implements and effectuates responsibilities for
the payment of black lung benefits placed upon coal operators by
sections 415 and 422 of the Act and the regulations of the Secretary in
this subchapter, particularly those set forth in part 725 of this
subchapter. All definitions, usages, procedures, and other rules
affecting the responsibilities of coal operators prescribed in part 725
of this subchapter are applicable, as appropriate, to this part 726.
(b) If the provisions of this part appear to conflict with any
provision of any other part in this subchapter, the apparently
conflicting provisions should be read harmoniously to the fullest
extent possible. If a harmonious interpretation is not possible, the
provisions of this part should be applied to govern the
responsibilities and obligations of coal mine operators to secure the
payment of black lung benefits as prescribed by the Act. The provisions
of this part do not apply to matters falling outside the scope of this
part.
Sec. 726.4 Who must obtain insurance coverage.
(a) Section 423 of part C of title IV of the Act requires each
operator of a coal mine or former operator in any State which does meet
the requirements prescribed by the Secretary pursuant to section 411 of
part C of title IV of the Act to self-insure or obtain a policy or
contract of insurance to guarantee the payment of benefits for which
such operator may be adjudicated liable under section 422 of the Act.
In enacting sections 422 and 423 of the Act Congress has unambiguously
expressed its intent that coal mine operators bear the cost of
providing the benefits established by part C of title IV of the Act.
Section 3 of the Act defines an ``operator'' as any owner, lessee, or
other person who operates, controls, or supervises a coal mine.
(b) Section 422(i) of the Act clearly recognizes that any
individual or business entity who is or was a coal mine operator may be
found liable for the payment of pneumoconiosis benefits after December
31, 1973. Within this framework it is clear that the Secretary has wide
latitude for determining which operator shall be liable for the payment
of part C benefits. Comprehensive standards have been promulgated in
subpart G of part 725 of this subchapter for the purpose of guiding the
Secretary in making such determination. It must be noted that pursuant
to these standards any parent or subsidiary corporation, any individual
or corporate partner, or partnership, any lessee or lessor of a coal
mine, any joint venture or participant in a joint venture, any
transferee or transferor of a corporation or other business entity, any
former, current, or future operator or any other form of business
entity which has had or will have a substantial and reasonably direct
interest in the operation of a coal mine may be determined liable for
the payment of pneumoconiosis benefits after December 31, 1973. The
failure of any such business entity to self-insure or obtain a policy
or contract of insurance shall in no way relieve such business entity
of its obligation to pay pneumoconiosis benefits in respect of any case
in which such business entity's responsibility for such payments has
been properly adjudicated. Any business entity described in this
section shall take appropriate steps to insure that any liability
imposed by part C of the Act on such business entity shall be
dischargeable.
Sec. 726.5 Effective date of insurance coverage.
Pursuant to section 422(c) of part C of title IV of the Act, no
coal mine operator shall be responsible for the payment of any benefits
whatsoever for any period prior to January 1, 1974. However, coal mine
operators shall be liable as of January 1, 1974, for the payment of
benefits in respect of claims which were filed under section 415 of
part B of title IV of the Act after July 1, 1973. Section 415(a)(3)
requires the Secretary to notify any operator who may be liable for the
payment of benefits under part C of title IV beginning on January 1,
1974, of the pendency of a section 415 claim. Section 415(a)(5)
declares that any operator who has been notified of the pendency of a
section 415 claim shall be bound by the determination of the Secretary
as to such operator's liability and as to the claimant's entitlement to
benefits as if the claim were filed under part C of title IV of the Act
and section 422 thereof had been applicable to such operator.
Therefore, even though no benefit payments shall be required of an
operator prior to January 1, 1974, the liability for these payments may
be finally adjudicated at any time after July 1, 1973. Neither the
failure of an operator to exercise his right to participate in the
adjudication of such a claim nor the failure of an operator to obtain
insurance coverage in respect of claims filed after June 30, 1973, but
before January 1, 1974, shall excuse such operator from his liability
for the payment of benefits to such claimants under part C of title IV
of the Act.
Sec. 726.6 The Office of Workers' Compensation Programs.
The Office of Workers' Compensation Programs (hereinafter the
Office or OWCP) is that subdivision of the Employment Standards
Administration of the U.S. Department of Labor which has been empowered
by the Secretary of Labor to carry out his functions under section 415
and part C of title IV of the Act. As noted throughout this part 726
the Office shall perform a number of functions with respect to the
regulation of both the self-insurance and commercial insurance
programs. All correspondence with or submissions to the Office should
be addressed as follows: Division of Coal Mine Workers' Compensation,
Office of Workers' Compensation Programs, Employment Standards
Administration, U.S. Department of Labor, Washington, D.C. 20210.
Sec. 726.7 Forms, submission of information.
Any information required by this part 726 to be submitted to the
Office of Workmen's Compensation Programs or any other office or
official of the Department of Labor, shall be submitted on such forms
or in such manner as the Secretary deems appropriate and has authorized
from time to time for such purposes.
Sec. 726.8 Definitions.
In addition to the definitions provided in part 725 of this
subchapter, the following definitions apply to this part:
(a) Director means the Director, Office of Workers' Compensation
Programs, and includes any official of the Office of Workers'
Compensation Programs authorized by the Director to perform any of the
functions of the Director under this part and part 725 of this
subchapter.
[[Page 55064]]
(b) Person includes any individual, partnership, corporation,
association, business trust, legal representative, or organized group
of persons.
(c) Secretary means the Secretary of Labor or such other official
as the Secretary shall designate to carry out any responsibility under
this part.
(d) The terms employ and employment shall be construed as broadly
as possible, and shall include any relationship under which an operator
retains the right to direct, control, or supervise the work performed
by a miner, or any other relationship under which an operator derives a
benefit from the work performed by a miner. Any individuals who
participate with one or more persons in the mining of coal, such as
owners, proprietors, partners, and joint venturers, whether they are
compensated by wages, salaries, piece rates, shares, profits, or by any
other means, shall be deemed employees. It is the specific intention of
this paragraph to disregard any financial arrangement or business
entity devised by the actual owners or operators of a coal mine or coal
mine-related enterprise to avoid the payment of benefits to miners who,
based upon the economic reality of their relationship to this
enterprise, are, in fact, employees of the enterprise.
Subpart B--Authorization of Self-Insurers
Sec. 726.101 Who may be authorized to self-insure.
(a) Pursuant to section 423 of part C of title IV of the Act,
authorization to self-insure against liability incurred by coal mine
operators on account of the total disability or death of miners due to
pneumoconiosis may be granted or denied in the discretion of the
Secretary. The provisions of this subpart describe the minimum
requirements established by the Secretary for determining whether any
particular coal mine operator shall be authorized as a self-insurer.
(b) The minimum requirements which must be met by any operator
seeking authorization to self-insure are as follows:
(1) Such operator must, at the time of application, have been in
the business of mining coal for at least the 3 consecutive years prior
to such application; and,
(2) Such operator must demonstrate the administrative capacity to
fully service such claims as may be filed against him; and,
(3) Such operator's average current assets over the preceding 3
years (in computing average current assets such operator shall not
include the amount of any negotiable securities which he may be
required to deposit to secure his obligations under the Act) must
exceed current liabilities by the sum of--
(i) The estimated aggregate amount of black lung benefits
(including medical benefits) which such operator may expect to be
required to pay during the ensuing year; and,
(ii) The annual premium cost for any indemnity bond purchased; and
(4) Such operator must obtain security, in a form approved by the
Office (see Sec. 726.104) and in an amount to be determined by the
Office (see Sec. 726.105); and
(5) No operator with fewer than 5 full-time employee-miners shall
be permitted to self-insure.
(c) No operator who is unable to meet the requirements of this
section should apply for authorization to self-insure and no
application for self-insurance shall be approved by the Office until
such time as the amount prescribed by the Office has been secured as
prescribed in this subpart.
Sec. 726.102 Application for authority to become a self-insurer; how
filed; information to be submitted.
(a) How filed. Application for authority to become a self-insurer
shall be addressed to the Office and be made on a form provided by the
Office. Such application shall be signed by the applicant over his
typewritten name and if the applicant is not an individual, by the
principal officer of the applicant duly authorized to make such
application over his typewritten name and official designation and
shall be sworn to by him. If the applicant is a corporation, the
corporate seal shall be affixed. The application shall be filed with
the Office in Washington, DC.
(b) Information to be submitted. Each application for authority to
self-insure shall contain:
(1) A statement of the employer's payroll report for each of the
preceding 3 years;
(2) A statement of the average number of employees engaged in
employment within the purview of the Act for each of the preceding 3
years;
(3) A list of the mine or mines to be covered by any particular
self-insurance agreement. Each such mine or mines listed shall be
described by name and reference shall be made to the Federal
Identification Number assigned such mine by the Bureau of Mines, U.S.
Department of the Interior;
(4) A certified itemized statement of the gross and net assets and
liabilities of the operator for each of the 3 preceding years in such
manner as prescribed by the Office;
(5) A statement demonstrating the applicant's administrative
capacity to provide or procure adequate servicing for a claim including
both medical and dollar claims; and
(6) In addition to the aforementioned, the Office may in its
discretion, require the applicant to submit such further information or
such evidence as the Office may deem necessary to have in order to
enable it to give adequate consideration to such application.
(c) Who may file. An application for authorization to self-insure
may be filed by any parent or subsidiary corporation, partner or
partnership, party to a joint venture or joint venture, individual, or
other business entity which may be determined liable for the payment of
black lung benefits under part C of title IV of the Act, regardless of
whether such applicant is directly engaged in the business of mining
coal. However, in each case for which authorization to self-insure is
granted, the agreement and undertaking filed pursuant to Sec. 726.110
and the security deposit shall be respectively filed by and deposited
in the name of the applicant only.
Sec. 726.103 Application for authority to self-insure; effect of
regulations contained in this part.
As appropriate, each of the regulations, interpretations and
requirements contained in this part 726 including those described in
subpart C of this part shall be binding upon each applicant under this
subpart, and the applicant's consent to be bound by all requirements of
the said regulations shall be deemed to be included in and a part of
the application, as fully as though written therein.
Sec. 726.104 Action by the Office upon application of operator.
(a) Upon receipt of a completed application for authorization to
self-insure, the Office shall, after examination of the information
contained in the application deny the applicant's request for
authorization to self-insure or, determine the amount of security which
must be given by the applicant to guarantee the payment of benefits and
the discharge of all other obligations which may be required of such
applicant under the Act.
(b) The applicant shall thereafter be notified that he may give
security in the amount fixed by the Office (see Sec. 726.105):
(1) In the form of an indemnity bond with sureties satisfactory to
the Office;
(2) By a deposit of negotiable securities with a Federal Reserve
Bank in compliance with Secs. 726.106(c) and 726.107;
[[Page 55065]]
(3) In the form of a letter of credit issued by a financial
institution satisfactory to the Office (except that a letter of credit
shall not be sufficient by itself to satisfy a self-insurer's
obligations under this part); or
(4) By funding a trust pursuant to section 501(c)(21) of the
Internal Revenue Code (26 U.S.C.).
(c) Any applicant who cannot meet the security deposit requirements
imposed by the Office should proceed to obtain a commercial policy or
contract of insurance. Any applicant for authorization to self-insure
whose application has been rejected or who believes that the security
deposit requirements imposed by the Office are excessive may, in
writing, request that the Office review its determination. A request
for review should contain such information as may be necessary to
support the request that the amount of security required be reduced.
(d) Upon receipt of any such request the Office shall review its
previous determination in light of any new or additional information
submitted and inform the applicant whether or not a reduction in the
amount of security initially required is warranted.
Sec. 726.105 Fixing the amount of security.
The amount of security to be fixed and required by the Office shall
be such as the Office shall deem to be necessary and sufficient to
secure the performance by the applicant of all obligations imposed upon
him as an operator by the Act. In determining the amount of security
required, the factors that the Office will consider include, but are
not limited to, the operator's net worth, the existence of a guarantee
by a parent corporation, and the operator's existing liability for
benefits. Other factors such as the Office may deem relevant to any
particular case shall be considered. The amount of security which shall
be required may be increased or decreased when experience or changed
conditions so warrant.
Sec. 726.106 Type of security.
(a) The Office shall determine the type or types of security which
an applicant shall or may procure. (See Sec. 726.104(b).)
(b) In the event the indemnity bond option is selected such
indemnity bond shall be in such form and contain such provisions as the
Office may prescribe: Provided, That only corporations may act as
sureties on such indemnity bonds. In each case in which the surety on
any such bond is a surety company, such company must be one approved by
the U.S. Treasury Department under the laws of the United States and
the applicable rules and regulations governing bonding companies (see
Department of Treasury's Circular-570).
(c) An applicant for authorization to self-insure authorized to
deposit negotiable securities to secure his obligations under the Act
in the amount fixed by the Office shall deposit any negotiable
securities acceptable as security for the deposit of public moneys of
the United States under regulations issued by the Secretary of the
Treasury. (See 31 CFR part 225.) The approval, valuation, acceptance,
and custody of such securities is hereby committed to the several
Federal Reserve Banks and the Treasurer of the United States.
Sec. 726.107 Deposits of negotiable securities with Federal Reserve
banks or the Treasurer of the United States; authority to sell such
securities; interest thereon.
Deposits of securities provided for by the regulations in this part
shall be made with any Federal Reserve bank or any branch of a Federal
Reserve bank designated by the Office, or the Treasurer of the United
States, and shall be held subject to the order of the Office with power
in the Office, in its discretion in the event of default by the said
self-insurer, to collect the interest as it may become due, to sell the
securities or any of them as may be required to discharge the
obligations of the self-insurer under the Act and to apply the proceeds
to the payment of any benefits or medical expenses for which the self-
insurer may be liable. The Office may, however, whenever it deems it
unnecessary to resort to such securities for the payment of benefits,
authorize the self-insurer to collect interest on the securities
deposited by him.
Sec. 726.108 Withdrawal of negotiable securities.
No withdrawal of negotiable securities deposited by a self-insurer,
shall be made except upon authorization by the Office. A self-insurer
discontinuing business, or discontinuing operations within the purview
of the Act, or providing security for the payment of benefits by
commercial insurance under the provisions of the Act may apply to the
Office for the withdrawal of securities deposited under the regulations
in this part. With such application shall be filed a sworn statement
setting forth:
(a) A list of all outstanding cases in which benefits are being
paid, with the names of the miners and other beneficiaries, giving a
statement of the amounts of benefits paid and the periods for which
such benefits have been paid; and
(b) A similar list of all pending cases in which no benefits have
as yet been paid. In such cases withdrawals may be authorized by the
Office of such securities as in the opinion of the Office may not be
necessary to provide adequate security for the payment of outstanding
and potential liabilities of such self-insurer under the Act.
Sec. 726.109 Increase or reduction in the amount of security.
Whenever in the opinion of the Office the amount of security given
by the self-insurer is insufficient to afford adequate security for the
payment of benefits and medical expenses under the Act, the self-
insurer shall, upon demand by the Office, file such additional security
as the Office may require. At any time upon application of a self-
insurer, or on the initiative of the Office, when in its opinion the
facts warrant, the amount of security may be reduced. A self-insurer
seeking such reduction shall furnish such information as the Office may
request relative to his current affairs, the nature and hazard of the
work of his employees, the amount of the payroll of his employees
engaged in coal mine employment within the purview of the Act, his
financial condition, and such other evidence as may be deemed material,
including a record of payment of benefits made by him.
Sec. 726.110 Filing of agreement and undertaking.
(a) In addition to the requirement that adequate security be
procured as set forth in this subpart, the applicant for the
authorization to self-insure shall as a condition precedent to
receiving authorization to act as a self-insurer, execute and file with
the Office an agreement and undertaking in a form prescribed and
provided by the Office in which the applicant shall agree:
(1) To pay when due, as required by the provisions of said Act, all
benefits payable on account of total disability or death of any of its
employee-miners within the purview of the Act;
(2) In such cases to furnish medical, surgical, hospital, and other
attendance, treatment, and care as required by the provisions of the
Act;
(3) To provide security in a form approved by the Office (see
Sec. 726.104) and in an amount established by the Office (see
Sec. 726.105), accordingly as elected in the application;
(4) To authorize the Office to sell any negotiable securities so
deposited or any part thereof and from the proceeds thereof to pay such
benefits, medical, and other expenses and any accrued
[[Page 55066]]
penalties imposed by law as it may find to be due and payable.
(b) At such time when an applicant has provided the requisite
security, such applicant shall send a completed agreement and
undertaking together with satisfactory proof that his obligations and
liabilities under the Act have been secured to the Office in
Washington, D.C.
Sec. 726.111 Notice of authorization to self-insure.
Upon receipt of a completed agreement and undertaking and
satisfactory proof that adequate security has been provided an
applicant for authorization to self-insure shall be notified by the
Office in writing, that he is authorized to self-insure to meet the
obligations imposed upon such applicant by section 415 and part C of
title IV of the Act.
Sec. 726.112 Reports required of self-insurer; examination of accounts
of self-insurer.
(a) Each operator who has been authorized to self-insure under this
part shall submit to the Office reports containing such information as
the Office may from time to time require or prescribe.
(b) Whenever it deems it to be necessary, the Office may inspect or
examine the books of account, records, and other papers of a self-
insurer for the purpose of verifying any financial statement submitted
to the Office by the self-insurer or verifying any information
furnished to the Office in any report required by this section, or any
other section of the regulations in this part, and such self-insurer
shall permit the Office or its duly authorized representative to make
such an inspection or examination as the Office shall require. In lieu
of this requirement the Office may in its discretion accept an adequate
report of a certified public accountant.
(c) Failure to submit or make available any report or information
requested by the Office from an authorized self-insurer pursuant to
this section may, in appropriate circumstances result in a revocation
of the authorization to self-insure.
Sec. 726.113 Disclosure of confidential information.
Any financial information or records, or other information relating
to the business of an authorized self-insurer or applicant for the
authorization of self-insurance obtained by the Office shall be exempt
from public disclosure to the extent provided in 5 U.S.C. 552(b) and
the applicable regulations of the Department of Labor promulgated
thereunder. (See 29 CFR part 70.)
Sec. 726.114 Period of authorization as self-insurer; reauthorization.
(a) No initial authorization as a self-insurer shall be granted for
a period in excess of 18 months. A self-insurer who has made an
adequate deposit of negotiable securities in compliance with
Secs. 726.106(c) and 726.107 will be reauthorized for the ensuing
fiscal year without additional security if the Office finds that his
experience as a self-insurer warrants such action. If it is determined
that such self-insurer's experience indicates a need for the deposit of
additional security, no reauthorization shall be issued for the ensuing
fiscal year until such time as the Office receives satisfactory proof
that the requisite amount of additional securities have been deposited.
A self-insurer who currently has on file an indemnity bond, will
receive from the Office each year a bond form for execution in
contemplation of reauthorization, and the submission of such bond duly
executed in the amount indicated by the Office will be deemed and
treated as such self-insurer's application for reauthorization for the
ensuing Federal fiscal year.
(b) In each case for which there is an approved change in the
amount of security provided, a new agreement and undertaking shall be
executed.
(c) Each operator authorized to self-insure under this part shall
apply for reauthorization for any period during which it engages in the
operation of a coal mine and for additional periods after it ceases
operating a coal mine. Upon application by the operator, accompanied by
proof that the security posted by the operator is sufficient to secure
all benefits potentially payable to miners formerly employed by the
operator, the Office shall issue a certification that the operator is
exempt from the requirements of this part based on its prior operation
of a coal mine. The provisions of subpart D of this part shall be
applicable to any operator that fails to apply for reauthorization in
accordance with the provisions of this section.
Sec. 726.115 Revocation of authorization to self-insure.
The Office may for good cause shown suspend or revoke the
authorization of any self-insurer. Failure by a self-insurer to comply
with any provision or requirement of law or of the regulations in this
part, or with any lawful order or communication of the Office, or the
failure or insolvency of the surety on his indemnity bond, or
impairment of financial responsibility of such self-insurer, may be
deemed good cause for such suspension or revocation.
Subpart C--Insurance Contracts
Sec. 726.201 Insurance contracts--generally.
Each operator of a coal mine who has not obtained authorization as
a self-insurer shall purchase a policy or enter into a contract with a
commercial insurance carrier or State agency. Pursuant to authority
contained in sections 422(a) and 423 (b) and (c) of part C of title IV
of the Act, this subpart describes a number of provisions which are
required to be incorporated in a policy or contract of insurance
obtained by a coal mine operator for the purpose of meeting the
responsibility imposed upon such operator by the Act in respect of the
total disability or death of miners due to pneumoconiosis.
Sec. 726.202 Who may underwrite an operator's liability.
Each coal mine operator who is not authorized to self-insure shall
insure and keep insured the payment of benefits as required by the Act
with any stock company or mutual company or association, or with any
other person, or fund, including any State fund while such company,
association, person, or fund is authorized under the law of any State
to insure workmen's compensation.
Sec. 726.203 Federal Coal Mine Health and Safety Act endorsement.
(a) The following form of endorsement shall be attached and
applicable to the standard workmen's compensation and employer's
liability policy prepared by the National Council on Compensation
Insurance affording coverage under the Federal Coal Mine Health and
Safety Act of 1969, as amended:
It is agreed that: (1) With respect to operations in a State
designated in item 3 of the declarations, the unqualified term
``workmen's compensation law'' includes part C of title IV of the
Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. section
931-936, and any laws amendatory thereto, or supplementary thereto,
which may be or become effective while this policy is in force, and
definition (a) of Insuring Agreement III is amended accordingly; (2)
with respect to such insurance as is afforded by this endorsement,
(a) the States, if any, named below, shall be deemed to be
designated in item 3 of the declaration; (b) Insuring Agreement
IV(2) is amended to read ``by disease caused or aggravated by
exposure of which the last day of the last exposure, in the
employment of the insured, to conditions causing the disease occurs
during the policy period, or occurred prior to (effective date) and
claim based on such disease is first filed against the insured
during the policy period.''
(b) The term ``effective date'' as used in the endorsement
provisions
[[Page 55067]]
contained in paragraph (a) of this section shall be construed to mean
the effective date of the first policy or contract of insurance
procured by an operator for purposes of meeting the obligations imposed
on such operator by section 423 of part C of title IV of the Act.
(c) The Act contains a number of provisions and imposes a number of
requirements on operators which differ in varying degrees from
traditional workmen's compensation concepts. To avoid unnecessary
administrative delays and expense which might be occasioned by the
drafting of an entirely new standard workmen's compensation policy
specially tailored to the Act, the Office has determined that the
existing standard workmen's compensation policy subject to the
endorsement provisions contained in paragraph (a) of this section shall
be acceptable for purposes of writing commercial insurance coverage
under the Act. However, to avoid undue disputes over the meaning of
certain policy provisions and in accordance with the authority
contained in section 423(b)(3) of the Act, the Office has determined
that the following requirements shall be applicable to all commercial
insurance policies obtained by an operator for the purpose of insuring
any liability incurred pursuant to the Act:
(1) Operator liability. (i) Section 415 and part C of title IV of
the Act provide coverage for total disability or death due to
pneumoconiosis to all claimants who meet the eligibility requirements
imposed by the Act. Section 422 of the Act and the regulations duly
promulgated thereunder (part 725 of this subchapter) set forth the
conditions under which a coal mine operator may be adjudicated liable
for the payment of benefits to an eligible claimant for any period
subsequent to December 31, 1973.
(ii) Section 422(c) of the Act prescribes that except as provided
in 422(i) (see paragraph (c)(2) of this section) an operator may be
adjudicated liable for the payment of benefits in any case if the total
disability or death due to pneumoconiosis upon which the claim is
predicated arose at least in part out of employment in a mine in any
period during which it was operated by such operator. The Act does not
require that such employment which contributed to or caused the total
disability or death due to pneumoconiosis occur subsequent to any
particular date in time. The Secretary in establishing a formula for
determining the operator liable for the payment of benefits (see
subpart D of part 725 of this subchapter) in respect of any particular
claim, must therefore, within the framework and intent of title IV of
the Act find in appropriate cases that an operator is liable for the
payment of benefits for some period after December 31, 1973, even
though the employment upon which an operator's liability is based
occurred prior to July 1, 1973, or prior to the effective date of the
Act or the effective date of any amendments thereto, or prior to the
effective date of any policy or contract of insurance obtained by such
operator. The endorsement provisions contained in paragraph (a) of this
section shall be construed to incorporate these requirements in any
policy or contract of insurance obtained by an operator to meet the
obligations imposed on such operator by section 423 of the Act.
(2) Successor liability. Section 422(i) of part C of title IV of
the Act requires that a coal mine operator who after December 30, 1969,
acquired his mine or substantially all of the assets thereof from a
person who was an operator of such mine on or after December 30, 1969,
shall be liable for and shall secure the payment of benefits which
would have been payable by the prior operator with respect to miners
previously employed in such mine if the acquisition had not occurred
and the prior operator had continued to operate such mine. In the case
of an operator who is determined liable for the payment of benefits
under section 422(i) of the Act and part 725 of this subchapter, such
liability shall accrue to such operator regardless of the fact that the
miner on whose total disability or death the claim is predicated was
never employed by such operator in any capacity. The endorsement
provisions contained in paragraph (a) of this section shall be
construed to incorporate this requirement in any policy or contract of
insurance obtained by an operator to meet the obligations imposed on
such operator by section 423 of the Act.
(3) Medical eligibility. Pursuant to section 422(h) of part C of
title IV of the Act and the regulations described therein (see subpart
D of part 410 of this title) benefits shall be paid to eligible
claimants on account of total disability or death due to pneumoconiosis
and in cases where the miner on whose death a claim is predicated was
totally disabled by pneumoconiosis at the time of his death regardless
of the cause of such death. The endorsement provisions contained in
paragraph (a) of this section shall be construed to incorporate these
requirements in any policy or contract of insurance obtained by an
operator to meet the obligations imposed on such operator by section
423 of the Act.
(4) Payment of benefits, rates. Section 422(c) of the Act by
incorporating section 412(a) of the Act requires the payment of
benefits at a rate equal to 50 per centum of the minimum monthly
payment to which a Federal employee in grade GS-2, who is totally
disabled is entitled at the time of payment under Chapter 81 of title
5, United States Code. These benefits are augmented on account of
eligible dependents as appropriate (see section 412(a) of part B of
title IV of the Act). Since the dollar amount of benefits payable to
any beneficiary is required to be computed at the time of payment such
amounts may be expected to increase from time to time as changes in the
GS-2 grade are enacted into law. The endorsement provisions contained
in paragraph (a) of this section shall be construed to incorporate in
any policy or contract of insurance obtained by an operator to meet the
obligations imposed on such operator by section 423 of the Act, the
requirement that the payment of benefits to eligible beneficiaries
shall be made in such dollar amounts as are prescribed by section
412(a) of the Act computed at the time of payment.
(5) Compromise and waiver of benefits. Section 422(a) of part C of
title IV of the Act by incorporating sections 15(b) and 16 of the
Longshoremen's and Harbor Workers' Compensation Act (33 U.S.C. 915(b)
and 916) prohibits the compromise and/or waiver of claims for benefits
filed or benefits payable under section 415 and part C of title IV of
the Act. The endorsement provisions contained in paragraph (a) of this
section shall be construed to incorporate these prohibitions in any
policy or contract of insurance obtained by an operator to meet the
obligations imposed on such operator by section 423 of the Act.
(6) Additional requirements. In addition to the requirements
described in paragraph (c)(1) through (5) of this section, the
endorsement provisions contained in paragraph (a) of this section
shall, to the fullest extent possible, be construed to bring any policy
or contract of insurance entered into by an operator for the purpose of
insuring such operator's liability under part C of title IV of the Act
into conformity with the legal requirements placed upon such operator
by section 415 and part C of title IV of the Act and parts 720 and 725
of this subchapter.
(d) Nothing in this section shall relieve any operator or carrier
of the duty to comply with any State workmen's compensation law, except
[[Page 55068]]
insofar as such State law is in conflict with the provisions of this
section.
Sec. 726.204 Statutory policy provisions.
Pursuant to section 423(b) of part C of title IV of the Act each
policy or contract of insurance obtained to comply with the
requirements of section 423(a) of the Act must contain or shall be
construed to contain--
(a) A provision to pay benefits required under section 422 of the
Act, notwithstanding the provisions of the State workmen's compensation
law which may provide for lesser payments; and,
(b) A provision that insolvency or bankruptcy of the operator or
discharge therein (or both) shall not relieve the carrier from
liability for such payments.
Sec. 726.205 Other forms of endorsement and policies.
Forms of endorsement or policies other than that described in
Sec. 726.203 may be entered into by operators to insure their liability
under the Act. However, any form of endorsement or policy which
materially alters or attempts to materially alter an operator's
liability for the payment of any benefits under the Act shall be deemed
insufficient to discharge such operator's duties and responsibilities
as prescribed in part C of title IV of the Act. In any event, the
failure of an operator to obtain an adequate policy or contract of
insurance shall not affect such operator's liability for the payment of
any benefits for which he is determined liable.
Sec. 726.206 Terms of policies.
A policy or contract of insurance shall be issued for the term of 1
year from the date that it becomes effective, but if such insurance be
not needed except for a particular contract or operation, the term of
the policy may be limited to the period of such contract or operation.
Sec. 726.207 Discharge by the carrier of obligations and duties of
operator.
Every obligation and duty in respect of payment of benefits, the
providing of medical and other treatment and care, the payment or
furnishing of any other benefit required by the Act and in respect of
the carrying out of the administrative procedure required or imposed by
the Act or the regulations in this part or part 725 of this subchapter
upon an operator shall be discharged and carried out by the carrier as
appropriate. Notice to or knowledge of an operator of the occurrence of
total disability or death due to pneumoconiosis shall be notice to or
knowledge of such carrier. Jurisdiction of the operator by a district
director, administrative law judge, the Office, or appropriate
appellate authority under the Act shall be jurisdiction of such
carrier. Any requirement under any benefits order, finding, or decision
shall be binding upon such carrier in the same manner and to the same
extent as upon the operator.
Reports by Carrier
Sec. 726.208 Report by carrier of issuance of policy or endorsement.
Each carrier shall report to the Office each policy and endorsement
issued, canceled, or renewed by it to an operator. The report shall be
made in such manner and on such form as the Office may require.
Sec. 726.209 Report; by whom sent.
The report of issuance, cancellation, or renewal of a policy and
endorsement provided for in Sec. 726.208 shall be sent by the home
office of the carrier, except that any carrier may authorize its agency
or agencies to make such reports to the Office.
Sec. 726.210 Agreement to be bound by report.
Every carrier seeking to write insurance under the provisions of
the Act shall be deemed to have agreed that the acceptance by the
Office of a report of the issuance or renewal of a policy of insurance,
as provided for by Sec. 726.208 shall bind the carrier to full
liability for the obligations under the Act of the operator named in
said report. It shall be no defense to this agreement that the carrier
failed or delayed to issue, cancel, or renew the policy to the operator
covered by this report.
Sec. 726.211 Name of one employer only shall be given in each report.
A separate report of the issuance or renewal of a policy and
endorsement, provided for by Sec. 726.208, shall be made for each
operator covered by a policy. If a policy is issued or renewed insuring
more than one operator, a separate report for each operator so covered
shall be sent to the Office with the name of only one operator on each
such report.
Sec. 726.212 Notice of cancellation.
Cancellation of a contract or policy of insurance issued under
authority of the Act shall not become effective otherwise than as
provided by 33 U.S.C. 936(b); and notice of a proposed cancellation
shall be given to the Office and to the operator in accordance with the
provisions of 33 U.S.C. 912(c), 30 days before such cancellation is
intended to be effective (see section 422(a) of part C of title IV of
the Act).
Sec. 726.213 Reports by carriers concerning the payment of benefits.
Pursuant to 33 U.S.C. 914(c) as incorporated by section 422(a) of
part C of title IV of the Act and Sec. 726.207 each carrier issuing a
policy or contract of insurance under the Act shall upon making the
first payment of benefits and upon the suspension of any payment in any
case, immediately notify the Office in accordance with a form
prescribed by the Office that payment of benefit has begun or has been
suspended as the case may be. In addition, each such carrier shall at
the request of the Office submit to the Office such additional
information concerning policies or contracts of insurance issued to
guarantee the payment of benefits under the Act and any benefits paid
thereunder, as the Office may from time to time require to carry out
its responsibilities under the Act.
Subpart D--Civil Money Penalties
Sec. 726.300 Purpose and scope.
Any operator which is required to secure the payment of benefits
under section 423 of the Act and Sec. 726.4 and which fails to secure
such benefits shall be subject to a civil penalty of not more than
$1,000 for each day during which such failure occurs. If the operator
is a corporation, the president, secretary, and treasurer of the
operator shall also be severally liable for the penalty based on the
operator's failure to secure the payment of benefits. This subpart
defines those terms necessary for administration of the civil money
penalty provisions, describes the criteria for determining the amount
of penalty to be assessed, and sets forth applicable procedures for the
assessment and contest of penalties.
Sec. 726.301 Definitions.
In addition to the definitions provided in part 725 of this
subchapter and Sec. 726.8, the following definitions apply to this
subpart:
(a) Division Director means the Director, Division of Coal Mine
Workers' Compensation, Office of Workers' Compensation Programs,
Employment Standards Administration, or such other official authorized
by the Division Director to perform any of the functions of the
Division Director under this subpart.
(b) President, secretary, or treasurer means the officers of a
corporation as designated pursuant to the laws and regulations of the
state in which the corporation is incorporated or, if that state does
not require the designation of such officers, to the employees of a
company who are performing the work
[[Page 55069]]
usually performed by such officers in the state in which the
corporation's principal place of business is located.
(c) Principal means any person who has an ownership interest in an
operator that is not a corporation, and shall include, but is not
limited to, partners, sole proprietors, and any other person who
exercises control over the operation of a coal mine.
Sec. 726.302 Determination of penalty.
(a) The following method shall be used for determining the amount
of any penalty assessed under this subpart.
(b) The penalty shall be determined by multiplying the daily base
penalty amount or amounts, determined in accordance with the formula
set forth in this section, by the number of days in the period during
which the operator is subject to the security requirements of section
423 of the Act and Sec. 726.4, and fails to secure its obligations
under the Act. The period during which an operator is subject to
liability for a penalty for failure to secure its obligations shall be
deemed to commence on the first day on which the operator met the
definition of the term ``operator'' as set forth in Sec. 725.101 of
this subchapter. The period shall be deemed to continue even where the
operator has ceased coal mining and any related activity, unless the
operator secured its liability for all previous periods through a
policy or policies of insurance obtained in accordance with subpart C
of this part or has obtained a certification of exemption in accordance
with the provisions of Sec. 726.114.
(c)(1) A daily base penalty amount shall be determined for all
periods up to and including the 10th day after the operator's receipt
of the notification sent by the Director pursuant to Sec. 726.303,
during which the operator failed to secure its obligations under
section 423 of the Act and Sec. 726.4.
(2)(i) The daily base penalty amount shall be determined based on
the number of persons employed in coal mine employment by the operator,
or engaged in coal mine employment on behalf of the operator, on each
day of the period defined by this section, and shall be computed as
follows:
------------------------------------------------------------------------
Penalty
Employees (per day)
------------------------------------------------------------------------
Less than 25................................................ $100
25 to 50.................................................... 200
51 to 100................................................... 300
More than 100............................................... 400
------------------------------------------------------------------------
(ii) For any period after the operator has ceased coal mining and
any related activity, the daily penalty amount shall be computed based
on the largest number of persons employed in coal mine employment by
the operator, or engaged in coal mine employment on behalf of the
operator, on any day while the operator was engaged in coal mining or
any related activity. For purposes of this section, it shall be
presumed, in the absence of evidence to the contrary, that any person
employed by an operator is employed in coal mine employment.
(3) In any case in which the operator had prior notice of the
applicability of the Black Lung Benefits Act to its operations, the
daily base penalty amounts set forth in paragraph (b) of this section
shall be doubled. Prior notice may be inferred where the operator, or
an entity in which the operator or any of its principals had an
ownership interest, or an entity in which the operator's president,
secretary, or treasurer were employed:
(i) Previously complied with section 423 of the Act and Sec. 726.4;
(ii) Was notified of its obligation to comply with section 423 of
the Act and Sec. 726.4; or
(iii) Was notified of its potential liability for a claim filed
under the Black Lung Benefits Act pursuant to Sec. 725.407 of this
subchapter.
(4) Commencing with the 11th day after the operator's receipt of
the notification sent by the Director pursuant to Sec. 726.303, the
daily base penalty amounts set forth in paragraph (b) shall be
increased by $100.
(5) In any case in which the operator, or any of its principals, or
an entity in which the operator's president, secretary, or treasurer
were employed, has been the subject of a previous penalty assessment
under this part, the daily base penalty amounts shall be increased by
$300, up to a maximum daily base penalty amount of $1,000. The maximum
daily base penalty amount applicable to any violation of Sec. 726.4
that takes place after [effective date of the final rule] shall be
$1,100.
(d) The penalty shall be subject to reduction for any period during
which the operator had a reasonable belief that it was not required to
comply with section 423 of the Act and Sec. 726.4 or a reasonable
belief that it had obtained insurance coverage to comply with section
423 of the Act and Sec. 726.4. A notice of contest filed in accordance
with Sec. 726.307 shall not be sufficient to establish a reasonable
belief that the operator was not required to comply with the Act and
regulations.
Sec. 726.303 Notification; investigation.
(a) If the Director determines that an operator has violated the
provisions of section 423 of the Act and Sec. 726.4, he or she shall
notify the operator of its violation and request that the operator
immediately secure the payment of benefits. Such notice shall be sent
by certified mail.
(b) The Director shall also direct the operator to supply
information relevant to the assessment of a penalty. Such information,
which shall be supplied within 30 days of the Director's request, may
include:
(1) The date on which the operator commenced its operation of a
coal mine;
(2) The number of persons employed by the operator since it began
operating a coal mine and the dates of their employment; and
(3) The identity and last known address:
(i) In the case of a corporation, of all persons who served as
president, secretary, and treasurer of the operator since it began
operating a coal mine; or
(ii) In the case of an operator which is not incorporated, of all
persons who were principals of the operator since it began operating a
coal mine;
(c) In conducting any investigation of an operator under this
subpart, the Division Director shall have all of the powers of a
district director, as set forth at Sec. 725.351(a) of this subchapter.
For purposes of Sec. 725.351(c), the Division Director shall be
considered to sit in the District of Columbia.
Sec. 726.304 Notice of initial assessment.
(a) After an operator receives notification under Sec. 726.303 and
fails to secure its obligations for the period defined in
Sec. 726.302(b), and following the completion of any investigation, the
Director may issue a notice of initial penalty assessment in accordance
with the criteria set forth in Sec. 726.302.
(b)(1) A copy of such notice shall be sent by certified mail to the
operator. If the operator is a corporation, a copy shall also be sent
by certified mail to each of the persons who served as president,
secretary, or treasurer of the operator during any period in which the
operator was in violation of section 423 of the Act and Sec. 726.4.
(2) Where service by certified mail is not accepted by any person,
the notice shall be deemed received by that person on the date of
attempted delivery. Where service is not accepted, the Director may
exercise discretion to serve the notice by regular mail.
Sec. 726.305 Contents of notice.
The notice required by Sec. 726.304 shall:
(a) Identify the operator against whom the penalty is assessed as
well as the name of any other person severally liable for such penalty;
[[Page 55070]]
(b) Set forth the determination of the Director as to the amount of
the penalty and the reason or reasons therefor;
(c) Set forth the right of each person identified in paragraph (a)
of this section to contest the notice and request a hearing before the
Office of Administrative Law Judges;
(d) Set forth the method for each person identified in paragraph
(a) to contest the notice and request a hearing before the Office of
Administrative Law Judges; and
(e) Inform any affected person that in the absence of a timely
contest and request for hearing received within 30 days of the date of
receipt of the notice, the Director's assessment will become final and
unappealable as to that person.
Sec. 726.306 Finality of administrative assessment.
Except as provided in Sec. 726.307(c), if any person identified as
potentially liable for the assessment does not, within 30 days after
receipt of notice, contest the assessment, the Director's assessment
shall be deemed final as to that person, and collection and recovery of
the penalty may be instituted pursuant to Sec. 726.320.
Sec. 726.307 Form of notice of contest and request for hearing.
(a) Any person desiring to contest the Director's notice of initial
assessment shall request an administrative hearing pursuant to this
part. The notice of contest shall be made in writing to the Director,
Division of Coal Mine Workers' Compensation, Office of Workers'
Compensation Programs, Employment Standards Administration, United
States Department of Labor. The notice of contest must be received no
later than 30 days after the date of receipt of the notice issued under
Sec. 726.304. No additional time shall be added where service of the
notice is made by mail.
(b) The notice of contest shall:
(1) Be dated;
(2) Be typewritten or legibly written;
(3) State the specific issues to be contested. In particular, the
person must indicate his agreement or disagreement with:
(i) The Director's determination that the person against whom the
penalty is assessed is an operator subject to the requirements of
section 423 of the Act and Sec. 726.4, or is the president, secretary,
or treasurer of an operator, if the operator is a corporation.
(ii) The Director's determination that the operator violated
section 423 of the Act and Sec. 726.4 for the time period in question;
and
(iii) The Director's determination of the amount of penalty owed;
(4) Be signed by the person making the request or an authorized
representative of such person; and
(5) Include the address at which such person or authorized
representative desires to receive further communications relating
thereto.
(c) A notice of contest filed by the operator shall be deemed a
notice of contest on behalf of all other persons to the Director's
determinations that the operator is subject to section 423 of the Act
and Sec. 726.4 and that the operator violated those provisions for the
time period in question, and to the Director's determination of the
amount of penalty owed. An operator may not contest the Director's
determination that a person against whom the penalty is assessed is the
president, secretary, or treasurer of the operator.
(d) Failure to specifically identify an issue as contested pursuant
to paragraph (b)(3) of this section shall be deemed a waiver of the
right to contest that issue.
Sec. 726.308 Service and computation of time.
(a) Service of documents under this part shall be made by delivery
to the person, an officer of a corporation, or attorney of record, or
by mailing the document to the last known address of the person,
officer, or attorney. If service is made by mail, it shall be
considered complete upon mailing. Unless otherwise provided in this
subpart, service need not be made by certified mail. If service is made
by delivery, it shall be considered complete upon actual receipt by the
person, officer, or attorney; upon leaving it at the person's,
officer's or attorney's office with a clerk or person in charge; upon
leaving it at a conspicuous place in the office if no one is in charge;
or by leaving it at the person's or attorney's residence.
(b) If a complaint has been filed pursuant to Sec. 726.309, two
copies of all documents filed in any administrative proceeding under
this subpart shall be served on the attorneys for the Department of
Labor. One copy shall be served on the Associate Solicitor, Black Lung
Benefits Division, Room N-2605, Office of the Solicitor, U.S.
Department of Labor, 200 Constitution Ave., N.W., Washington, DC 20210,
and one copy on the attorney representing the Department in the
proceeding.
(c) The time allowed a party to file any response under this
subpart shall be computed beginning with the day following the action
requiring a response, and shall include the last day of the period,
unless it is a Saturday, Sunday, or federally-observed holiday, in
which case the time period shall include the next business day.
Sec. 726.309 Referral to the Office of Administrative Law Judges.
(a) Upon receipt of a timely notice of contest filed in accordance
with Sec. 726.307, the Director, by the Associate Solicitor for Black
Lung Benefits or the Regional Solicitor for the Region in which the
violation occurred, may file a complaint with the Office of
Administrative Law Judges. The Director may, in the complaint, reduce
the total penalty amount requested. A copy of the notice of initial
assessment issued by the Director and all notices of contest filed in
accordance with Sec. 726.307 shall be attached. A notice of contest
shall be given the effect of an answer to the complaint for purposes of
the administrative proceeding, subject to any amendment that may be
permitted under this subpart and 29 CFR part 18.
(b) A copy of the complaint and attachments thereto shall be served
by counsel for the Director on the person who filed the notice of
contest.
(c) The Director, by counsel, may withdraw a complaint filed under
this section at any time prior to the date upon which the decision of
the Department becomes final by filing a motion with the Office of
Administrative Law Judges or the Secretary, as appropriate. If the
Director makes such a motion prior to the date on which an
administrative law judge renders a decision in accordance Sec. 726.313,
the dismissal shall be without prejudice to further assessment against
the operator for the period in question.
Sec. 726.310 Appointment of Administrative Law Judge and notification
of hearing date.
Upon receipt from the Director of a complaint filed pursuant to
Sec. 726.309, the Chief Administrative Law Judge shall appoint an
Administrative Law Judge to hear the case. The Administrative Law Judge
shall notify all interested parties of the time and place of the
hearing.
Sec. 726.311 Evidence.
(a) Except as specifically provided in this subpart, and to the
extent they do not conflict with the provisions of this subpart, the
Rules of Practice and Procedure for Administrative Hearings Before the
Office of Administrative Law Judges established by the Secretary at 29
CFR part 18 shall apply to administrative proceedings under this
subpart.
(b) Notwithstanding 29 CFR 18.1101(b)(2), subpart B of the Rules of
Practice and Procedure for Administrative Hearings Before the Office of
Administrative Law Judges shall apply to administrative
[[Page 55071]]
proceedings under this part, except that documents contained in
Department of Labor files and offered on behalf of the Director shall
be admissible in proceedings under this subpart without regard to their
compliance with the Rules of Practice and Procedure.
Sec. 726.312 Burdens of proof.
(a) The Director shall bear the burden of proving the existence of
a violation, and the time period for which the violation occurred. To
prove a violation, the Director must establish:
(1) That the person against whom the penalty is assessed is an
operator, or is the president, secretary, or treasurer of an operator,
if such operator is a corporation.
(2) That the operator violated section 423 of the Act and
Sec. 726.4. The filing of a complaint shall be considered prima facie
evidence that the Director has searched the records maintained by OWCP
and has determined that the operator was not authorized to self-insure
its liability under the Act for the time period in question, and that
no insurance carrier reported coverage of the operator for the time
period in question.
(b) The Director need not produce further evidence in support of
his burden of proof with respect to the issues set forth in paragraph
(a) if no party contested them pursuant to Sec. 726.307(b)(3).
(c) The Director shall bear the burden of proving the size of the
operator as required by Sec. 726.302, except that if the Director has
requested the operator to supply information with respect to its size
under Sec. 726.303 and the operator has not fully complied with that
request, it shall be presumed that the operator has more than 100
employees engaged in coal mine employment. The person or persons liable
for the assessment shall thereafter bear the burden of proving the
actual number of employees engaged in coal mine employment.
(d) The Director shall bear the burden of proving the operator's
receipt of the notification required by Sec. 726.303, the operator's
prior notice of the applicability of the Black Lung Benefits Act to its
operations, and the existence of any previous assessment against the
operator, the operator's principals, or the operator's officers.
(e) The person or persons liable for an assessment shall bear the
burden of proving the applicability of the mitigating factors listed in
Sec. 726.302(d).
Sec. 726.313 Decision and order of Administrative Law Judge.
(a) The Administrative Law Judge shall render a decision on the
issues referred by the Director.
(b) The decision of the Administrative Law Judge shall be limited
to determining, where such issues are properly before him or her:
(1) Whether the operator has violated section 423 of the Act and
Sec. 726.4;
(2) Whether other persons identified by the Director as potentially
severally liable for the penalty were the president, treasurer, or
secretary of the corporation during the time period in question; and
(3) The appropriateness of the penalty assessed by the Director in
light of the factors set forth in Sec. 726.302. The Administrative Law
Judge shall not render determinations on the legality of a regulatory
provision or the constitutionality of a statutory provision.
(c) The decision of the Administrative Law Judge shall include a
statement of findings and conclusions, with reasons and bases therefor,
upon each material issue presented on the record. The decision shall
also include an appropriate order which may affirm, reverse, or modify,
in whole or in part, the determination of the Director.
(d) The Administrative Law Judge shall serve copies of the decision
on each of the parties by certified mail.
(e) The decision of the Administrative Law Judge shall be deemed to
have been issued on the date that it is rendered, and shall constitute
the final order of the Secretary unless there is a request for
reconsideration by the Administrative Law Judge pursuant to paragraph
(f) of this section or a petition for review filed pursuant to
Sec. 726.314.
(f) Any party may request that the Administrative Law Judge
reconsider his or her decision by filing a motion within 30 days of the
date upon which the decision of the Administrative Law Judge is issued.
A timely motion for reconsideration will suspend the running of the
time for any party to file a petition for review pursuant to
Sec. 726.314.
(g) Following issuance of the decision and order, the Chief
Administrative Law Judge shall promptly forward the complete hearing
record to the Director.
Sec. 726.314 Review by the Secretary.
(a) The Director or any party aggrieved by a decision of the
Administrative Law Judge may petition the Secretary for review of the
decision by filing a petition within 30 days of the date on which the
decision was issued. Any other party may file a cross-petition for
review within 15 days of its receipt of a petition for review or within
30 days of the date on which the decision was issued, whichever is
later. Copies of any petition or cross-petition shall be served on all
parties and on the Chief Administrative Law Judge.
(b) A petition filed by one party shall not affect the finality of
the decision with respect to other parties.
(c) If any party files a timely motion for reconsideration, any
petition for review, whether filed prior to or subsequent to the filing
of the timely motion for reconsideration, shall be dismissed without
prejudice as premature. The 30-day time limit for filing a petition for
review by any party shall commence upon issuance of a decision on
reconsideration.
Sec. 726.315 Contents.
Any petition or cross-petition for review shall:
(a) Be dated;
(b) Be typewritten or legibly written;
(c) State the specific reason or reasons why the party petitioning
for review believes the Administrative Law Judge's decision is in
error;
(d) Be signed by the party filing the petition or an authorized
representative of such party; and
(e) Attach copies of the Administrative Law Judge's decision and
any other documents admitted into the record by the Administrative Law
Judge which would assist the Secretary in determining whether review is
warranted.
Sec. 726.316 Filing and service.
(a) Filing. All documents submitted to the Secretary shall be filed
with the Secretary of Labor, U.S. Department of Labor, 200 Constitution
Ave., NW, Washington, DC 20210.
(b) Number of copies. An original and four copies of all documents
shall be filed.
(c) Computation of time for delivery by mail. Documents are not
deemed filed with the Secretary until actually received by the
Secretary either on or before the due date. No additional time shall be
added where service of a document requiring action within a prescribed
time was made by mail.
(d) Manner and proof of service. A copy of each document filed with
the Secretary shall be served upon all other parties involved in the
proceeding. Service under this section shall be by personal delivery or
by mail. Service by mail is deemed effected at the time of mailing to
the last known address.
Sec. 726.317 Discretionary review.
(a) Following receipt of a timely petition for review, the
Secretary shall
[[Page 55072]]
determine whether the decision warrants review, and shall send a notice
of such determination to the parties and the Chief Administrative Law
Judge. If the Secretary declines to review the decision, the
Administrative Law Judge's decision shall be considered the final
decision of the agency. The Secretary's determination to review a
decision by an Administrative Law Judge under this subpart is solely
within the discretion of the Secretary.
(b) The Secretary's notice shall specify:
(1) The issue or issues to be reviewed; and
(2) The schedule for submitting arguments, in the form of briefs or
such other pleadings as the Secretary deems appropriate.
(c) Upon receipt of the Secretary's notice, the Director shall
forward the record to the Secretary.
Sec. 726.318 Final decision of the Secretary.
The Secretary's review shall be based upon the hearing record. The
findings of fact in the decision under review shall be conclusive if
supported by substantial evidence in the record as a whole. The
Secretary's review of conclusions of law shall be de novo. Upon review
of the decision, the Secretary may affirm, reverse, modify, or vacate
the decision, and may remand the case to the Office of Administrative
Law Judges for further proceedings. The Secretary's final decision
shall be served upon all parties and the Chief Administrative Law
Judge, in person or by mail to the last known address.
Sec. 726.319 Retention of official record.
The official record of every completed administrative hearing held
pursuant to this part shall be maintained and filed under the custody
and control of the Director.
Sec. 726.320 Collection and recovery of penalty.
(a) When the determination of the amount of any civil money penalty
provided for in this part becomes final, in accordance with the
administrative assessment thereof, or pursuant to the decision and
order of an Administrative Law Judge in an administrative proceeding as
provided in, or following the decision of the Secretary, the amount of
the penalty as thus determined is immediately due and payable to the
U.S. Department of Labor on behalf of the Black Lung Disability Trust
Fund. The person against whom such penalty has been assessed or imposed
shall promptly remit the amount thereof, as finally determined, to the
Secretary by certified check or by money order, made payable to the
order of U.S. Department of Labor, Black Lung Program. Such remittance
shall be delivered or mailed to the Director.
(b) If such remittance is not received within 30 days after it
becomes due and payable, it may be recovered in a civil action brought
by the Secretary in any court of competent jurisdiction, in which
litigation the Secretary shall be represented by the Solicitor of
Labor.
PART 727--[REMOVED]
6. Under the authority of sections 932 and 936 of the Black Lung
Benefits Act, part 727 is proposed to be removed.
[FR Doc. 99-24658 Filed 10-7-99; 8:45 am]
BILLING CODE 4510-27-P
