[Federal Register: December 20, 2000 (Volume 65, Number 245)]
[Rules and Regulations]
[Page 80019-80068]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20de00-18]
[[pp. 80019-80068]] Regulations Implementing the Federal Coal Mine Health and Safety
Act of 1969, as Amended
[[Continued from page 80018]]
[[Page 80019]]
is responsible, each of which is worth approximately $175,000, could
become the responsibility of the Black Lung Disability Trust Fund. The
Department has a duty to protect the assets of the Trust Fund, and thus
intends to enforce the post-award security provision incorporated into
the Black Lung Benefits Act from section 14(i) of the Longshore and
Harbor Workers' Compensation Act, 33 U.S.C. 914(i), as incorporated by
30 U.S.C. 932(a).
(c) One comment states that coal transportation employers are
generally unaware of their potential liability for black lung benefits,
and are surprised when they are identified as a responsible operator in
the adjudication of an individual claim for benefits. At that point,
the commenter maintains, any insurance that they are able to purchase
will not cover benefits owed to the former employee who has already
filed a claim. The commenter requests that the proposed regulations
prohibit the case-by-case adjudication of issues of coverage involving
coal transportation employers.
The Department does not believe that it is necessary to revise the
regulations to provide further guidance to coal transportation
employers. Neither does the Department deem it advisable to limit the
authority of adjudication officers to apply the pertinent statutory and
regulatory definitions to claims for benefits filed by employees of
transportation employers. Congress amended the Federal Mine Safety and
Health Act in 1977 to include ``any independent contractor performing
services or construction'' at the Nation's coal mines.'' 30 U.S.C.
802(d); Pub. L. 95-164, 91 Stat. 1290, Sec. 102(b)(2) (1977). When it
amended the Black Lung Benefits Act several months later, Congress
specifically recognized, in two separate provisions, that coal
transportation companies were now liable for the payment of benefits.
First, Congress amended the definition of the term ``miner'' to include
``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.'' 30 U.S.C.
902(d); Pub. L. 95-239, 92 Stat. 95, Sec. 2(b) (1978). In addition,
Congress added language to section 422(b) that exempted coal
transportation employers, as well as coal mine construction employers,
from the requirement that they generally secure the payment of benefits
by purchasing insurance or seeking the Department's approval to self-
insure their obligations. 30 U.S.C. 932(b); Pub. L. 95-239, 92 Stat.
95, Sec. 7(b) (1978). Congress provided, however, that coal
transportation and coal mine construction employers may be required to
post a bond or otherwise guarantee the payment of benefits in any
awarded claim for which they have been determined liable. Ibid. The
regulations promulgated by the Department to implement the 1978
amendments also specifically recognized the liability of coal
transportation employers. See 20 CFR 725.491(a)(1979); 43 FR 36801-02
(Aug. 18, 1978).
Thus, since 1978, both the statute and the regulations have put
coal mine transportation employers on notice that they could be held
liable for the payment of any benefits owed to their former employees.
See Norfolk & Western Railway Co. v. Roberson, 918 F.2d 1144, 1149-50
(4th Cir. 1990), cert. denied, 500 U.S. 916. Accordingly, the
Department does not believe that such an employer should be surprised
when it receives notification of a claim filed by one of its employees.
Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384-85 (1947) (``Just
as everyone is charged with knowledge of the United States Statutes at
Large, Congress has provided that the appearance of rules and
regulations in the Federal Register gives legal notice of their
contents.'') Finally, even though a transportation employer is not
required to obtain insurance to secure its black lung liability, it
remains free to purchase such insurance in order to ensure that its
assets are not depleted by the defense and payment of black lung
claims.
(d) No other comments were received concerning this section. The
Department has corrected one error in the proposed regulation,
replacing the phrase ``the United States Treasurer'' in subsection (f)
with the term ``a Federal Reserve Bank.'' The Department explained in
its initial proposal that the funds will be deposited with the
appropriate Federal Reserve Bank rather than the United States
Treasurer and had changed similar language in subsection (c). See 62 FR
3367 (Jan. 22, 1997).
20 CFR 725.608
(a) The Department proposed revising Sec. 725.608 in its initial
notice of proposed rulemaking in order to simplify the regulation, and
to allow all parties to a claim to ascertain their obligations and
rights with respect to the payment of interest. The proposal recognized
that black lung beneficiaries were entitled to the payment of interest
on retroactive benefits, additional compensation, and medical benefits.
Interest on retroactive benefits starts to accrue 30 days after the
first date on which the claimant was determined to be entitled to such
benefits. Interest on additional compensation starts to accrue on the
date that the beneficiary becomes entitled to additional compensation,
while interest on medical benefits starts to accrue on the date that
the miner received the medical service or 30 days after the date on
which the miner was first determined to be generally eligible for black
lung benefits, whichever date is later. 62 FR 3368 (Jan. 22, 1997)
In addition, the proposal specifically required the payment of
interest by responsible operators on attorneys' fee awards. 62 FR 3368
(Jan. 22, 1997). In some cases, those awards may be issued long before
the award of claimant's benefits becomes final, the first point at
which the attorney is able to collect his fee under Sec. 28 of the
Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 928,
incorporated into the Black Lung Benefits Act by 30 U.S.C. 932(a). The
Department did not discuss this regulation in its second notice of
proposed rulemaking. See list of Changes in the Department's Second
Proposal, 64 FR 54971 (Oct. 8, 1999).
(b) The Department has replaced the term ``beneficiary'' with the
phrase ``beneficiary or medical provider'' in two places in the last
sentence of subsection (a)(4). This revision is intended to conform
that sentence with the first sentence of subsection (a)(4), which
clearly reflects the Department's intention that medical providers as
well as beneficiaries are eligible for interest to compensate them for
any delays in the payment of medical benefits.
(c) A number of comments oppose the allowance of interest on
attorneys' fees in general, and the computation of that interest from
the date the fee is awarded until it is paid. In its first notice of
proposed rulemaking, 62 FR 3368 (Jan. 22, 1997), the Department
explained that the payment of such interest is necessary to buttress
the economic value of fees which may take years to become due because
of the duration of the underlying litigation of claimant entitlement.
Although the Black Lung Disability Trust Fund is not liable for the
payment of interest in any event, Shaffer v. Director, OWCP, 21 Black
Lung Rep. (MB) 1-98, 1-99 (Ben. Rev. Bd. 1998), a responsible operator
is not obliged to pay attorney's fees until the claimant successfully
establishes entitlement to benefits in a final award. Because appeals
may delay an award's finality for years, the attorney's fees awarded at
earlier stages of the litigation will diminish in real value as a
result of inflation. Interest from the date of a fee award, however,
will reduce the inroads made by inflation. An award of interest will
therefore encourage attorneys to
[[Page 80020]]
represent claimants because the value of their fees will be protected,
notwithstanding delays in actual payment. The Department wishes to
encourage attorney representation of claimants, believing it a means to
enhance the fairness of the adjudication process. The Department
therefore rejects the commenters' objection to the allowance of
interest on attorneys' fees in principle.
With respect to the computation of interest from the date of the
attorney fee award, the Department notes that any other date would not
afford an attorney maximum protection of the fee's value. Although the
operator is under no obligation to pay the fee at the time it is
awarded, the primary purpose of subsection (c) is to protect the value
of the attorney's fee from its inception. Moreover, an operator who is
able to postpone the payment of an attorney's fee by appealing the
underlying award of benefits is not entitled to profit from its
decision to appeal unless it succeeds in overturning the award. The
operator retains the money, and the use of the money, while the appeal
is pending. If the award of benefits is ultimately affirmed, the
operator should not reasonably expect to be able to retain any of the
profits it earned on that money during the appellate proceeding.
Instead, those profits, in the form of interest designed to compensate
an attorney for delay, rightfully belong to the attorney who had to
wait to receive payment of his fee. Consequently, the date of the fee
award is the logical date from which to calculate the interest owed.
The same commenters also argue that the Department has no statutory
authority to require the payment of interest on attorneys' fees. The
award of fees is governed by section 28 of the Longshore and Harbor
Workers' Compensation Act, 33 U.S.C. Sec. 928, as incorporated by 30
U.S.C. Sec. 932(a). Section 28 authorizes the payment of a
``reasonable'' attorney's fee by an employer if, after the employer
controverts a claimant's entitlement, the claimant obtains an award of
benefits. No fee must be paid until the award is final. The Supreme
Court has held that ``[a]n adjustment for delay in payment is * * * an
appropriate factor in the determination of what constitutes a
reasonable attorney's fee'' under a fee-shifting statute. Missouri v.
Jenkins, 491 U.S. 274, 284 (1989) (decided under Civil Rights
Attorney's Fees Award Act); see also Pennsylvania v. Delaware Valley
Citizens' Council, 483 U.S. 711, 716 (1987) (dicta, decided under Clean
Air Act); Goodloe v. Peabody Coal Co., 19 Black Lung Rep. 1-91, 1-101-
102 (1995), vac. on other grounds sub nom Peabody Coal Co. v. Director,
OWCP, 116 F.3d 207 (7th Cir. 1997) (overruling prior decisions
prohibiting augmentation of attorney fee for delay, citing Jenkins).
Consequently, interest on an attorney's fee may be awarded consistent
with section 28 to compensate an attorney for delay in receiving his
fees.
The Court of Appeals for the Fourth Circuit recently addressed this
issue in Kerns v. Consolidation Coal Co., 176 F.3d 802 (4th Cir. 1999).
A claimant's attorney was awarded fees by an administrative law judge
in 1984, but was not able to collect those fees until the award became
final in 1990. He then filed a motion for supplemental attorneys' fees
based on the six-year delay between the award and its payment. The ALJ
denied the motion, and the Benefits Review Board affirmed. In reversing
the Board, the court noted that a 1995 decision of the Board, Nelson v.
Stevedoring Services of America, 29 BRBS 90 (1995), had authorized the
enhancement of an attorney's fee for delay under the Longshore and
Harbor Workers' Compensation Act. The court concluded that ``current
law'' thus required enhancement for delay, and remanded the case to
allow the ALJ to consider the merits of the attorney's supplemental fee
request. 176 F.3d at 805. Section 725.608 simply provides a mechanism
for ensuring that claimants' attorneys receive this enhancement in each
case involving a responsible operator.
The interest on a fee award provided by section 725.608, of course,
provides compensation only for part of the delay that an attorney may
face in collecting his fee, i.e., the time between the fee award and
the actual payment. It is not intended to compensate the attorney for
any delay between the performance of his work and the award of fees by
the appropriate adjudicator. If, for example, a claimant filed his
application in 1995, and was not awarded benefits by an administrative
law judge until 1999, Sec. 725.608 will require only that interest be
paid to the attorney from the date the ALJ approves the fee petition
until the date that the attorney collects that amount. It will not
provide interest from the date on which the attorney performed the
work. In such cases, it is the responsibility of the attorney who
submits a fee request to ensure that the request reflects any necessary
enhancement for the delay between the performance of the work and the
award of the fee. There are several methods by which an attorney may
seek enhancement of his fee award to cover this delay. For example, the
attorney could request the adjudication officer to use the attorney's
current rate (his rate at the time he applies for the fee), rather than
his historical rate (the rate at the time he performed the work), to
calculate the fee to which he is entitled. Thus, the attorney in the
example above, who performed 20 hours of work in 1995 but did not
submit his fee petition until benefits were awarded in 1999, might use
the $125 hourly rate he customarily charged in 1999 rather than the
$100 hourly rate he charged in 1995. Using the current rate would
permit the attorney to claim an additional $500, and would compensate
him for the delay between the time he performed the work and date of
the fee award. Another method of attaining the same result would be to
calculate a ``lodestar'' amount by multiplying the number of hours the
attorney worked by his historical rate, and then requesting the
adjudication officer to augment that figure by an additional amount
intended to compensate the attorney for the delay. Thus, the attorney
in the example might request that the adjudication officer multiply the
lodestar amount by an additional 25 percent. In either case, the fee
awarded by the adjudicator, in concert with the interest provided by
Sec. 725.608, will ensure that when the attorney finally receives
payment, he is fully compensated for the work he performed.
(d) One comment supports the allowance of interest on attorney fees
and on medical benefits. No other comments were received concerning
this section, and no changes have been made in it.
20 CFR 725.609
(a) The Department proposed revising section 725.609 in its first
notice of proposed rulemaking. In the revised regulation, the
Department clarified its intent and authority to enforce a final award
of benefits against other parties in the event the named operator is no
longer capable of assuming its liability for benefits. The revised
regulation outlined the other parties against which such an award might
be enforced, including corporate officers and successor operators. The
regulation also outlined the circumstances under which the Department
may impose liability on these parties. In proposing this regulation,
the Department relied on Congress' explicit determination that such
entities may be held liable for these awards. 62 FR 3368-69 (Jan. 22,
1997). The Department did not discuss the regulation in its second
notice of proposed rulemaking. See list of Changes in the Department's
Second Proposal, 64 FR 54971 (Oct. 8, 1999).
[[Page 80021]]
(b) One comment objects to subsection (b)'s imposition of personal
liability on corporate officers of companies which provide services at
mine sites. The commenter suggests that liability is inappropriate
because the officers have never had notice that their employees could
be considered miners, and have not previously had knowledge of an
obligation to obtain insurance to cover their employees' potential
benefit entitlement. The Department rejects this suggestion. Congress
amended the statutory definition of ``operator'' in 1977 to include
``any independent contractor performing services or construction at
such mine[.]'' 30 U.S.C. 802(d). The current regulations also recognize
that an independent contractor may be held liable as a ``responsible
operator'' with respect to any employee who performs covered services
at a coal mine site. 20 CFR 725.491(c)(1). The Black Lung Benefits Act
requires an operator to secure its potential benefits liability by
obtaining insurance or qualifying as a self-insurer. 30 U.S.C. 932(b),
933(a). Section 423(d)(1) of the Act authorizes the Department to
impose personal liability on certain officers of a corporation if the
operator is a corporation that has failed to satisfy its insurance
obligations. 30 U.S.C. 933(d)(1). The Department therefore disagrees
that application of these provisions to employers engaged as
independent contractors providing covered services at mine sites is
unfair. Such corporate entities are coal mine operators under the Act,
and are liable to their employees when covered employment causes them
to become totally disabled by pneumoconiosis. Any such entity is
required to anticipate its obligations and take adequate measures to
satisfy those obligations as a cost of doing business. Moreover, since
1977, the officers of an independent contractor who meets the Act's
definition of the term ``operator'' have been subject to the Act's
imposition of liability on the officers of a corporation that fails to
meet its security obligations. The revised regulation does not alter
the obligation of these officers to obtain the appropriate security,
nor does it impose any additional consequences for failing to comply
with that obligation. Instead, it simply provides more explicit notice
of those consequences.
(c) One comment approves in general terms of the enforcement
provisions.
(d) No other comments were received concerning this section, and no
changes have been made in it.
20 CFR 725.620
(a) In its first notice of proposed rulemaking, the Department
proposed amending the cross-reference in subsection (a) from
Sec. 725.495 to subpart D of part 726. This amendment reflected a move
to part 726 of the regulations governing the obligations of coal mine
operators to secure the payment of benefits. 62 FR 3369 (Jan. 22,
1997). The Department did not discuss Sec. 725.620 in its second notice
of proposed rulemaking. See Changes in the Department's Second
Proposal, 64 FR 54971 (Oct. 8, 1999).
(b) Two comments urge the Department to revise its regulations to
allow parties to settle black lung benefits claims. These comments were
listed as relevant to Sec. 725.620(d) in the Department's listing of
comments by issue. See, e.g., Exhibit 71 in the Rulemaking Record. They
do not directly affect Sec. 725.620, however. Subsection (d) of the
regulation implements section 15(b) of the Longshore and Harbor
Workers' Compensation Act, 33 U.S.C. 915, as incorporated by 30 U.S.C.
932(a), rather than section 16, 33 U.S.C. 916, as incorporated by 30
U.S.C. 932(a), the statutory provision governing settlements. The
Department has responded to the comments concerning settlement of black
lung claims in its Final Regulatory Flexibility Analysis.
(c) No other comments were received concerning this section, and no
changes have been made in it.
20 CFR 725.621
In its first notice of proposed rulemaking, the Department proposed
increasing subsection (d)'s maximum penalty amount from $500 to $550
for failing to file a required report after the date on which the
regulations became effective. This revision implements the Civil
Penalties Inflation Adjustment Act of 1990, as amended by the Debt
Collection Improvement Act of 1996. 62 FR 3369 (Jan. 22, 1997). The
Department did not discuss Sec. 725.621 in its second notice of
proposed rulemaking. See Changes in the Department's Second Proposal,
64 FR 54971 (Oct. 8, 1999). No comments were received concerning this
section. The Department has removed an unnecessary comma from
subsection (b) in order to make the regulation easier to understand,
but no other changes have been made in it.
Subpart J
20 CFR 725.701
(a) After a miner has been found totally disabled by pneumoconiosis
arising out of coal mine employment, (s)he receives fixed monthly
benefits for that condition. The miner is also entitled to medical
benefits, i.e., treatment, supplies and other medical services for the
disabling pneumoconiosis. In its initial notice of proposed rulemaking,
the Department proposed amending Sec. 725.701 to establish a
presumption of medical benefits coverage for the treatment of any
pulmonary disorder. 62 FR 3423 (Jan. 22, 1997). This presumption
derived from a judicially-created presumption first announced by the
Court of Appeals for the Fourth Circuit in Doris Coal Co. v. Director,
OWCP [Stiltner,] 938 F.2d 492 (4th Cir. 1991). The Department explained
the means by which the presumption could be rebutted, and limited the
type of evidence relevant to rebuttal by excluding any medical opinion
premised on the absence of disabling pneumoconiosis. The Department
based its exclusion of certain medical evidence in rebuttal on the fact
that the existence of the miner's totally disabling pneumoconiosis had
already been established in the underlying claim for monthly benefits.
62 FR 3369, 3423 (Jan. 22, 1997). The Department received a number of
comments critical of the presumption. Some comments alleged the
presumption would effectively compensate miners for disorders caused by
smoking cigarettes and raise the operators' health care costs. Other
comments contended the presumption did not have a sound medical basis.
64 FR 55003 (Oct. 8, 1999).
After considering the public's comments and intervening judicial
decisions, the Department proposed additional changes to the regulation
in its second notice of proposed rulemaking. 64 FR 55060 (Oct. 8,
1999). The Department reviewed the decisions in Glen Coal Co. v. Seals,
147 F.3d 502 (6th Cir. 1998), and Gulf & Western Indus. v. Ling, 176
F.3d 226 (4th Cir. 1999). 64 FR 55003-04 (Oct. 8, 1999). The Department
noted both decisions agreed that the Doris Coal presumption shifted
only the burden of production to the party opposing benefits, and was
therefore valid under the Administrative Procedure Act (APA), 5 U.S.C.
Sec. 556(d) (proponent of rule bears burden of persuasion) and
Director, OWCP v. Greenwich Collieries, 512 U.S. 267 (1994). The
Department also pointed out that the majority in Seals rested on a
relatively narrow point: that the administrative law judge and Benefits
Review Board erroneously applied Fourth Circuit precedent when Sixth
Circuit law controlled and was inconsistent with Doris Coal. 147 F.3d
[[Page 80022]]
at 514 (Dowd, D.C.J), 515 (Boggs, J.). Citing the need for a uniform
standard of national applicability, the Department proposed several
changes to Sec. 725.701. 64 FR 55004 (Oct. 8, 1999). The Department
eliminated the reference to ``ancillary pulmonary conditions'' in
subsection (b) because the phrase was unnecessary and arguably
confusing. 64 FR 55004 (Oct. 8, 1999). The Department also changed the
language of subsection (e) to clarify the specific facts which might
rebut the presumption that a particular medical expense is compensable.
Subsection (e) contains a rebuttable presumption that a pulmonary
disorder for which the miner receives a medical service or supply is
caused or aggravated by pneumoconiosis. 64 FR 55060 (Oct. 8, 1999). In
the second proposal, the Department also clarified subsection (f) to
ensure that the party opposing benefits does not attempt to relitigate
established facts by using medical evidence for rebuttal which is
premised on the absence of totally disabling pneumoconiosis. Finally,
the Department acknowledged the controlling weight a report from a
treating physician may receive in determining the compensability of a
service or supply. 64 FR 55004 (Oct. 8, 1999).
(b) The Department has revised the rebuttal provisions set forth in
Sec. 725.701(e) in light of a decision from the Court of Appeals for
the Fourth Circuit issued after the second notice of proposed
rulemaking entered the final stage of administrative clearance. In
General Trucking Corp. v. Salyers, 175 F.3d 322 (4th Cir. 1999), the
Court reviewed the various means of rebutting the Doris Coal
presumption as presented in Ling:
It is certainly true that if the treatment at issue is found to
be `beyond that necessary to effectively treat a covered disorder,
or is not for a pulmonary disorder at all,' then the presumption
`shall not carry the day.' Ling, 176 F3d at 233. It does not follow,
however, that proof of these two circumstances is the exclusive
means of rebutting the presumption.
An employer contesting an award of medical benefits may also
rebut the presumption by adducing sufficient credible evidence that
the claimant was treated for `a pulmonary condition that had not
manifested itself, to some degree, at the onset of his disability,'
or for `a preexisting pulmonary condition adjudged not to have
contributed to his disability.' Ling, 176 F.3d at 232.
175 F.3d at 324. The Salyers decision emphasizes the importance of
affording the party liable for medical benefits an opportunity to rebut
the presumption with evidence that the service provided treated a
condition which became manifest after the underlying adjudication of
entitlement, or that it treated a preexisting pulmonary condition
adjudged not to have contributed to disability. It is the Department's
intent merely to codify the Court's coverage presumption and its
rebuttal methods as outlined in Fourth Circuit precedent. In light of
Salyers and Ling, the Department has revised Sec. 725.701(e) to conform
the regulation's rebuttal provisions to the decisions issued by the
Fourth Circuit since Doris Coal. Accordingly, the Department has
replaced the phrase ``was not for a covered pulmonary disorder as
defined in Sec. 718.201 of this subchapter,'' with ``was for a
pulmonary disorder apart from those previously associated with the
miner's disability[.]'' The foregoing explanation also responds to one
comment which faulted the Department for omitting any discussion of
Salyers in the second notice of proposed rulemaking.
(c) In response to its second notice of rulemaking, the Department
received numerous comments opposing the medical benefits program in
general or the Sec. 725.701(e) presumption in particular because, in
the commenters' view, coal mine operators would be forced to pay for
medical treatment unrelated to pneumoconiosis, especially respiratory
disorders caused by cigarette smoking. These same objections were made
to the version of Sec. 725.701(e) contained in the Department's initial
notice of proposed rulemaking. 64 FR 55003 (Oct. 8, 1999). In response,
the Department noted that operators may submit ``appropriate medical
evidence'' showing the particular medical service or supply relates to
the miner's smoking-related disease and not his pneumoconiosis. 64 FR
55004 (Oct. 8, 1999). An operator may still make such a showing,
although the Department has revised the rebuttal provisions of
Sec. 725.701(e) in the final rule. The nexus between the miner's
pneumoconiosis and the disorder under treatment is only presumed, and
therefore subject to being disproved. The operator may produce evidence
showing the treatment was for a particular pulmonary disorder apart
from those conditions previously associated with the miner's
disability, or exceeds the effective level of treatment for a covered
disorder, or did not involve a pulmonary disorder at all. As with the
Doris Coal presumption, invocation shifts only the burden of
production, not persuasion. The operator must confront the presumption
by submitting evidence which, if credited, establishes one of the means
of rebuttal. Section 725.701(f), however, does preclude one defense:
the operator cannot escape liability by trying to prove the medical
service cannot pertain to disabling pneumoconiosis because the miner
was disabled solely from smoking or some other non-occupational cause.
Once the miner establishes (s)he is entitled to disability benefits, no
element of entitlement can be relitigated or otherwise questioned via
the medical benefits litigation. Consequently, the operator and its
physician must accept that the miner has a totally disabling
respiratory or pulmonary impairment, and that pneumoconiosis, as
defined in Sec. 718.201, is a substantially contributing cause of that
impairment. See Ling, 176 F.3d at 232 and n.13, citing Doris Coal, 938
F.2d at 497 (operator cannot rebut presumption of benefits coverage by
showing miner's pneumoconiosis did not at least aggravate pulmonary
condition because ``[t]he time for that argument had passed with the
prior adjudication of disability'').
(d) Two comments state without explanation that the medical
benefits program implemented by these regulations will force the coal
industry to ``subsidize'' other private health plans and insurance as
well as the Medicare program. The Department interprets this contention
to mean that the industry and its insurers will be forced to
financially assist other health care programs by paying for treatment
expenses which are not actually related to the miner's pneumoconiosis,
and should be paid by the other programs. The Department disagrees.
Congress created the black lung medical benefits program as the primary
payor for the treatment of miners afflicted with disabling
pneumoconiosis. The program covers the costs of treatment, services and
supplies only for that purpose. Consequently, the operator may avoid
liability for any expense which is not for the treatment of totally
disabling pneumoconiosis, and which therefore should be paid by some
other health care program.
(e) One comment contends the Department misinterpreted Seals and
Ling in its analysis of those cases. 64 FR 55003-04 (Oct. 8, 1999). The
commenter also states the Department cannot ``overrule'' Seals by
regulation because that decision is based on an interpretation of the
APA. The Department rejects both arguments. The commenter does not
identify any specific mischaracterization or other error in the
Department's interpretation of either decision. The Department believes
its analysis is correct, and declines to change its position on the
meaning of those decisions except to the
[[Page 80023]]
extent reflected in changes to the rebuttal provisions contained in
Sec. 725.701(e). As for departing from the APA analysis of the majority
in Seals, the comment is simply incorrect. The specific majority
holding of Seals reversed the decisions of the administrative law judge
and Benefits Review Board because of an incorrect application of Fourth
Circuit law to a case arising in the Sixth Circuit. Judge Boggs
(concurring), however, agreed with Judge Moore (dissenting) ``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.'' 147 F.3d at 517. Consequently, the majority holding
does not rest on any APA considerations, and a majority of the panel,
albeit in dicta, acknowledges the Department's authority under
Greenwich Collieries (and, by extension, the APA) to promulgate
regulatory presumptions which reallocate burdens among parties. The
Department therefore rejects this comment.
(f) One comment contends the presumption of coverage for pulmonary
treatment is not supported by any scientific or medical information.
The commenter relies largely on a report prepared by a physician for
purposes of the rulemaking proceedings; the physician addresses several
of the regulations from a medical standpoint and reviews the medical
literature compiled during the rulemaking. With respect to
Sec. 725.701(e), the physician challenges the reasonableness of
presuming a connection between the miner's pneumoconiosis and any
pulmonary disorder for which (s)he seeks treatment. The physician notes
that many pulmonary disorders bear no relationship to pneumoconiosis,
and their treatment is unaffected by the presence of pneumoconiosis.
The physician further contends that each patient encounter must be
amply documented by evidence that the treatment is necessary for the
miner's pneumoconiosis, and should include medical testing, physical
examinations, etc. The Department acknowledges the concerns expressed
by the comment and accompanying medical views, but does not consider
any change in the regulation to be necessary.
As an initial matter, the fact that a physician might view the
presumption as medically unwarranted does not necessarily undermine its
validity as a legal, or evidentiary, presumption. The Department
understands the physician's objection to mean a physician would not
rely on such a presumption as a basis for treating a patient. Most of
the statutory and regulatory presumptions in the black lung benefits
program, however, draw factual inferences from a combination of medical
and non-medical facts for purposes other than patient care. See 30
U.S.C. Sec. 921(c)(1) (miner's pneumoconiosis presumed caused by coal
mine employment if miner worked ten years); (c)(3) (miner who has
complicated pneumoconiosis irrebuttably presumed totally disabled); 20
CFR. Sec. 727.203(a)(1)-(4) (proof of one of enumerated medical facts
about miner's pulmonary condition invokes presumption of all remaining
elements of entitlement); 20 CFR. Sec. 725.309 (material change in
miner's medical condition presumed if miner proves one element of
entitlement in duplicate claim previously not proven). ``Like all rules
of evidence that permit the inference of an ultimate fact from a
predicate one, black lung benefits presumptions rest on a judgment that
the relationship between the ultimate and the predicate facts has a
basis in the logic of common understanding.'' Mullins Coal Co. v.
Director, OWCP, 484 U.S. 135, 157 n. 30 (1987), reh'g den. 484 U.S.
1047 (1988). The Department explained the logical basis and
administrative purpose for the presumption in the notice of reproposed
rulemaking. See generally 64 FR 55004 (Oct. 8, 1999). A miner who is
entitled to disability benefits has proven three basic medical facts:
(s)he has pneumoconiosis as that disease is defined by Sec. 718.201;
(s)he has a totally disabling respiratory or pulmonary impairment; and
the pneumoconiosis significantly contributes to that respiratory or
pulmonary impairment. Consequently, the miner has established a
connection between the compensable disease and the disabling lung
condition. From those proven facts, Sec. 725.701(e) draws a rational
inference that the need for treating the miner's compromised
respiratory condition at any given time is necessitated, directly or
indirectly, by the presence of pneumoconiosis. This inference is
rebuttable, and the operator may submit evidence showing the treatment
is for a particular pulmonary disorder apart from those conditions
previously associated with the miner's disability, or exceeds the
effective level of treatment for a covered disorder, or did not involve
a pulmonary disorder at all. The Fourth Circuit endorsed the same
general line of reasoning in Ling when it upheld the validity of the
Doris Coal presumption. 176 F.3d at 233-34. The Department therefore
disagrees with the commenter that Sec. 725.701(e) does not have a
supportable basis which satisfies the legal test for a rational
presumption.
The physician-commenter also urges the Department to require
rigorous medical documentation for each medical treatment service,
including contemporaneous objective testing, examinations, etc., to
impose quality controls on the treatment program. The Department
indirectly addressed this concern in the notice of reproposed
rulemaking. 64 FR 55004 (Oct. 8, 1999). The Department noted that it
receives 12,000 to 15,000 bills weekly for treatment services, most of
which involve relatively minor amounts in the $25.00 to $75.00 range.
The Department cited cost effectiveness and promptness as practical
reasons for using a presumption of coverage to expedite the
administrative process. The presumption supplants the need for more
elaborate medical proof that the particular service or expense involves
the miner's pneumoconiosis, at least until the operator challenges the
expense with credible medical evidence. The Fourth Circuit reached the
same conclusion in Ling:
Hence, rather than compel the miner to exhaustively document his
claim for medical benefits, i.e., requiring him to again laboriously
obtain all the evidence that he can that his shortness of breath,
wheezing, and coughing are still the result of his pneumoconiosis,
we have fashioned the Doris Coal presumption as a shorthand method
of proving the same thing. The proof needed is a medical bill for
the treatment of a pulmonary or respiratory disorder and/or
associated symptoms.
176 F.3d at 233 (emphasis in original). Section 725.701(e) does not
eliminate the need for medical documentation for treatment and
services. The presumption merely provides a short-hand means of
identifying expenses which are likely to be legitimate unless the
liable party opposes payment of particular expenses.
(g) One comment states generally that the medical benefits program,
as reproposed, will promote fraud. Another comment contends that
reliance on the miner's treating physician under Sec. 725.701(f) will
promote fraudulent payments because the doctor has a financial
incentive to attribute the miner's pulmonary problems to
pneumoconiosis. The commenter also alludes to a long-standing pattern
of abuse of the black lung program by treating physicians who mix
compensable and non-compensable services when billing the Trust Fund
and operators as documented in Doris Coal Co. v. Director, OWCP, 938
F.2d 492, 497-98 (4th Cir. 1991). Finally, the comment
[[Page 80024]]
objects to the basic concept of special deference to a treating
physician's opinion as proposed in Sec. 718.104(d). With respect to
allegations of fraud, the professional integrity of any physician
should be accepted until particular acts of malfeasance are established
in the appropriate forum. The comment's allegations that particular
physicians are motivated by financial incentives can as easily be
directed toward any party-affiliated physician, or group of such
physicians, who may benefit by tailoring conclusions to fit the
interests of the party paying for the medical opinion. As for the
commenter's specific suggestion that there is no cost containment in
the program and that health care providers routinely seek payment from
the program for unrelated charges, the Department accepts the holding
in Doris Coal. In this decision, the Court refused to sanction the
practice of submitting an unitemized bill for multiple services because
such a practice could impose liability on the insurer for services
unrelated to the treatment of the miner's pneumoconiosis and encourage
fraud. 938 F.2d at 497-98. The Court, however, only alluded to the
potential for fraud if unitemized billing were permitted. It did not
address the practice as an historical reality or beyond the facts
involving the one treating physician involved in the case. The
Department therefore rejects the position that miners' treating
physicians should be viewed with special suspicion as a group because
of a motive for fraudulent diagnoses and/or treatment. The Department
responds to the objections concerning special deference to the treating
physician's opinion, as proposed in Sec. 718.104(d), in the preamble to
that subsection.
(h) One comment urges the Department to join the lawsuit filed by
the Department of Justice to recover money from the tobacco industry
for costs incurred by the black lung program in treating sick cigarette
smokers. The comment is not directed to any regulatory proposal, and no
response is therefore warranted.
(i) The Department received several comments which approve of
Sec. 725.701.
(j) No other comments were received concerning this section, and no
other changes have been made in it.
20 CFR 725.706
The Department proposed changing the no-approval dollar amount in
Sec. 725.706(b) from $100.00 to $300.00 in the initial notice of
proposed rulemaking. 62 FR 3424 (Jan. 22, 1997). No comments were
received concerning this section, and no other changes have been made
in it.
20 CFR Part 726--Black Lung Benefits; Requirements for Coal Mine
Operators' Insurance
The Department has received one comment relevant to Part 726 in its
entirety. The Department proposed revising only specific regulations in
Part 726, and invited comment only on those regulations, see 62 FR 3340
(Jan. 22, 1997); 64 FR 54970 (Oct. 8, 1999). The Department either made
only technical revisions to the remaining regulations in Part 726, or
made no changes, see 62 FR 3340-41 (Jan. 22, 1997) (lists of technical
revisions and unchanged regulations); 64 FR 54970-71 (Oct. 8, 1999)
(same). Therefore, no changes are being made to Part 726 in its
entirety.
Subpart A
20 CFR 726.2
In its initial notice of proposed rulemaking, the Department
proposed adding subsection (e) to this regulation in order to recognize
the addition of subpart D, implementing the civil money penalty
provision of 30 U.S.C. 933, to part 726. 62 FR 3369 (Jan. 22, 1997).
The Department did not discuss the regulation in its second notice of
proposed rulemaking. See list of Changes in the Department's Second
Proposal, 64 FR 54971 (Oct. 8, 1999). The Department has capitalized
the word ``subpart'' in subsection (b) to be consistent with the use of
that word in subparts (c), (d), and (e). In subsection (d), the
Department has replaced the phrase ``coal operator'' with the phrase
``coal mine operator'' to be consistent with subsections (c) and (e).
No comments were received concerning this section, and no other changes
have been made in it.
20 CFR 726.3
This regulation was not opened for comment in the Department's
first notice of proposed rulemaking. See list of Unchanged Regulations,
62 FR 3341 (Jan. 22, 1997). The Department proposed a revision to
subsection (b) in its second notice of proposed rulemaking at the
request of the Office of Federal Register to clarify the treatment of
cases in which the regulations in Part 726 appear to conflict with the
regulations incorporated from Part 725. 64 FR 55005 (Oct. 8, 1999). In
subsection (a), the Department has replaced the phrase ``coal
operator'' with the phrase ``coal mine operator'' to be consistent with
subsection (b). No comments were received concerning this section, and
no other changes have been made in it.
20 CFR 726.8
(a) The Department proposed adding Sec. 726.8 in its first notice
of proposed rulemaking in order to define certain terms including
``employ'' and ``employment.'' The definition of ``employ'' and
``employment'' proposed in subsection (d), was identical to that in
proposed Sec. 725.493(a)(1). 62 FR 3369 (Jan. 22, 1997). In its second
notice of proposed rulemaking, the Department incorporated into
subsection (d) a change to the definition of the term ``employment''
that it had also made to Sec. 725.493. 64 FR 55005 (Oct. 8, 1999). The
Department also responded to comments concerning the retroactive effect
of the proposal and the scope of the definitions. The Department stated
its belief that the proposal was neither improperly retroactive nor an
instrument for creating additional insurer liability. Neither did the
proposal intrude on insurance functions reserved to the states. The
Department noted the Court of Appeals for the Seventh Circuit's holding
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 Department also justified the
scope of the proposed definition as well within the rulemaking
authority granted the Department by Congress.
(b) One comment objects to the Department's definitions of the
terms ``employ'' and ``employment.'' The commenter argues that the
Department is improperly interfering with existing employment
relationships by adopting regulations that differ from those provided
by state employment and insurance laws. The Department provided a
detailed explanation of both its authority and its reasoning for
proposing this regulation in its October 8, 1999 proposal. See 64 Fed.
Reg. 55005 (Oct. 8, 1999). The Department does not agree that the
regulations it issues to implement the Black Lung Benefits Act
interfere with employment relationships recognized by the various
states. The Black Lung Benefits Act requires that a coal mine
operator's liability for a miner's black lung benefits be based on that
operator's employment of the miner. See 30 U.S.C. 932(a) (making the
operator of a coal mine liable for benefits based on ``death or total
disability due to pneumoconiosis arising out of employment in such
[[Page 80025]]
mine''). Congress did not specifically define the term ``employment,''
however. In such cases, an administrative agency is authorized to
promulgate regulations to fill the gaps Congress left in the statute.
Morton v. Ruiz, 415 U.S. 199, 231 (1974). In addition, the Department
is authorized to promulgate regulations to ensure sufficient insurance
coverage for all of the liabilities borne by operators under the Act.
30 U.S.C. 933(b)(3) (permitting the Secretary to promulgate regulations
governing the content of insurance policies issued to cover liability
under the Black Lung Benefits Act). The Department's definition of the
terms ``employ'' and ``employment'' is intended to meet its
responsibility to properly administer the Black Lung Benefits Act. The
Department does not believe that its definitions will in any way affect
the application of state law to the relationships between coal mine
operators and the miners they employ.
(c) The same commenter also argues that the Department's regulation
will eliminate the ability of a coal mine operator to enter into an
employee leasing arrangement with an employee leasing company. The
commenter observes that the current model employee leasing rule of the
National Association of Insurance Commissioners requires the employee
leasing company to provide workers' compensation coverage, including
federal black lung benefits coverage, for its employees. According to
the commenter, the Department's proposal, which would hold lessors
responsible for the insurance of their leased employees, will make
employee leasing a less viable option.
The Department does not believe that its proposal will interfere
with an employer's economic decision to use leased employees in its
coal mine operations. Moreover, the Department does not intend to force
coal mine operators to secure the payment of benefits for leased
employees when the leasing company has already obtained the necessary
insurance. In such cases, the operator will be considered to have met
the security requirements of the Act with respect to those employees.
Such a practice is sound from the point of view of both the traditional
coal mine operator and the employee leasing company. Although the
commenter suggests that leasing companies are not mine operators, that
is not entirely clear under the Black Lung Benefits Act. Section 423(a)
of the Act, 30 U.S.C. Sec. 933(a), requires ``each operator of a coal
mine'' to secure the payment of benefits by qualifying as a self-
insurer or purchasing insurance. The term ``operator,'' as used in
section 423(a), includes ``independent contractors who perform services
or construction at such mines.'' 30 U.S.C. Sec. 802(d). This definition
of ``operator'' thus includes companies that provide employees under a
leasing arrangement. The Department therefore does not agree that
employee leasing companies should not be considered ``operators'' under
the Black Lung Benefits Act. The Department's ability to monitor the
use of temporary contractual arrangements by the coal mining industry,
however, is limited. In addition, the commenter's different
interpretation of the term ``operator'' suggests that any effort to
impose civil money penalties on a leasing company under Part 726, or to
assign liability to such an entity under Part 725, would be vigorously
contested. Accordingly, the Department has defined the terms ``employ''
and ``employment'' in a manner which maximizes its ability to ensure
the insurance coverage of leased employees.
By contrast, the application of both Parts 725 and 726 to
traditional coal mine operators is quite clear. The Act authorizes the
Department to ensure that all of the individuals performing mining work
under that operator's direction are covered by appropriate security. In
addition, those coal mine operators who use leased employees are in the
best position to ensure that those employees are covered by the
necessary insurance. The Department does not intend to require that the
traditional coal mine operator purchase insurance when the leasing
company has done so, but it does intend the regulations to provide an
incentive for the coal mine operator to deal only with those leasing
companies that have purchased insurance meeting federal standards for
black lung benefits coverage. See 20 CFR 726.203 (1999). Contrary to
the commenter's suggestion, the rule thus does not make insurers and
state funds the enforcement officers of the Department. Rather, the
traditional coal mine operator is simply on notice that it may be held
liable for the benefits of leased employees if the leasing company
fails to procure the necessary insurance coverage, or for any civil
money penalties arising as a result of that failure.
(d) Finally, the same comment objects that the Department's
regulation is impermissibly retroactive. The Department has discussed
the retroactive effect of its regulations in considerable detail in
both its first and second notices of proposed rulemaking. See
discussions of Sec. 725.2 at 62 Fed. Reg. 3347-48 (Jan. 22, 1997) and
64 Fed. Reg. 54981-82 (Oct. 8, 1999). In those discussions, the
Department recognized that it lacks the authority to make substantive
changes to the regulations in a manner that applies retroactively. For
example, if the previous civil money penalty regulation, 20 CFR 725.495
(1999), did not permit the assessment of penalties against an operator
for its failure to secure the benefits payable to its leased employees,
the Department may not assess a penalty against that operator under the
revised regulations for any period prior to the effective date of these
regulations. Although the Department believes that the previous
regulation is broad enough to permit the assessment of civil money
penalties in these cases, it also recognizes that the issue must be
resolved on a case-by-case basis in the context of litigating penalty
assessments.
It is also important to note that the revised regulation does not
affect the liability of insurers for claims filed prior to the
effective date of the regulations. Under the insurance endorsement set
forth at Sec. 726.203, an insurer is already liable for all of the
miners employed by its insured. See Lovilia Coal Co. v. Williams, 143
F.3d 317, 322 (7th Cir. 1998). An employer's liability, in turn, is
determined by the regulations set forth at 20 CFR Secs. 725.491-.495.
The Department has stated explicitly that the revised version of those
regulations will not be applied retroactively. See Sec. 725.2.
Accordingly, if the prior regulations did not permit the imposition of
liability against a coal mine operator for benefits owed to a miner
whose services were obtained from a leasing company, they will not
permit imposition of liability against that operator's insurer. The
Department thus does not agree that the revised regulation is
impermissively retroactive.
(e) No other comments were received concerning this section, and no
changes have been made in it.
Subpart B
20 CFR 726.101
In its initial notice of proposed rulemaking, the Department
proposed revising this regulation to delete the formula used in 1974 to
establish the amount and types of security required for an operator to
be authorized to self-insure. The proposal also removed the reference
in subsection (a) to indemnity bonds and negotiable securities as the
only forms of acceptable security. 62 FR 3369 (Jan. 22, 1997). The
Department did not discuss the regulation in its second notice of
proposed rulemaking. See list of Changes in the Department's Second
Proposal, 64 FR 54971 (Oct. 8, 1999). The Department has revised
[[Page 80026]]
subsections (b)(1), (2), and (3), and subsection (c) in order to
clarify the meaning of the regulation. No comments were received
concerning this section, and no other changes have been made in it.
20 CFR 726.104
In its initial notice of proposed rulemaking, the Department
proposed revising subsection (b) to recognize two additional forms of
security available to an authorized self-insurer: Letters of credit and
tax-exempt trusts. 62 FR 3369 (Jan. 22, 1997). The Department did not
discuss the regulation in its second notice of proposed rulemaking. See
list of Changes in the Department's Second Proposal, 64 FR 54971 (Oct.
8, 1999). The Department has revised subsections (a) and (d) to clarify
the meaning of those provisions. The Department received one comment
concerning this regulation; that comment is addressed under
Sec. 726.106. No other comments were received concerning this section,
and no other changes have been made in it.
20 CFR 726.105
In its initial notice of proposed rulemaking, the Department
proposed deleting the reference to the formula contained in 20 CFR
725.101(1999), in favor of a non-exclusive list of factors to be
considered by the Department in determining the appropriate amount of
security required to be provided by a self-insured operator. 62 FR 3369
(Jan. 22, 1997). The Department did not discuss the regulation in its
second notice of proposed rulemaking. See list of Changes in the
Department's Second Proposal, 64 FR 54971 (Oct. 8, 1999). The
Department has revised the first and third sentences of the regulation
in order to clarify their meaning. No comments were received concerning
this section, and no other changes have been made in it.
20 CFR 726.106
(a) In its initial notice of proposed rulemaking, the Department
proposed deleting an incorrect reference to specific sections in Title
31 of the Code of Federal Regulations and replacing the reference with
a citation to the appropriate regulatory part governing deposits with
the United States. 62 FR 3369 (Jan. 22, 1997). The Department did not
discuss the regulation in its second notice of proposed rulemaking. See
list of Changes in the Department's Second Proposal, 64 FR 54971 (Oct.
8, 1999).
(b) One comment urges the Department to include language in this
regulation confirming the sole liability of a surety company which
writes the most recent indemnity bond for a responsible operator, and
the exoneration of all previous sureties. No change in the regulation
is necessary. In United States of America v. Insurance Co. of North
America, 83 F.3d 1507 (D.C. Cir. 1996), the Department argued that a
surety assumes liability for all of an operator's existing obligations
when the bond is written and continuing until the termination of the
bond. The Court rejected this argument. It held that a surety is liable
only for those obligations which actually accrue to the responsible
operator during the lifetime of the bond, and not for all outstanding
liabilities of the insured entity. 83 F.3d at 1511. The Court also
rejected the notion that each successive bond exonerates any previous
surety to which liability has attached. 83 F.3d at 1512-13. The Court
based these holdings on its interpretation of the bond language itself.
Consequently, the commenter's recommendation can be accomplished only
by further specifying in the bond's language, as prescribed by the
Department, the scope of the bond's coverage and its terms of release.
The Department has yet to determine whether revision of the bond form
is appropriate. In any event, the commenter's suggestion does not
require changing the language of the regulation.
(c) The Department has revised the first sentences of subsections
(b) and (c) to clarify the meaning of these provisions. No other
comments were received concerning this section, and no other changes
have been made in it.
20 CFR 726.109
In its initial notice of proposed rulemaking, the Department
proposed deleting specific references to indemnity bonds and negotiable
securities in favor of more general references to the security required
to be provided by a self-insured operator. 62 FR 3369 (Jan. 22, 1997).
The Department did not discuss the regulation in its second notice of
proposed rulemaking. See list of Changes in the Department's Second
Proposal, 64 FR 54971 (Oct. 8, 1999). The Department has revised the
second and third sentences of the regulation in order to clarify their
meaning. No comments were received concerning this section, and no
other changes have been made in it.
20 CFR 726.110
In its initial notice of proposed rulemaking, the Department
proposed deleting references to indemnity bonds and negotiable
securities in subsections (a)(3) and (b) in favor of more general
references to the security required to be provided by a self-insured
operator. 62 FR 3369 (Jan. 22, 1997). The Department did not discuss
the regulation in its second notice of proposed rulemaking. See list of
Changes in the Department's Second Proposal, 64 FR 54971 (Oct. 8,
1999). The Department has revised the regulation to clarify its
meaning. No comments were received concerning this section, and no
other changes have been made in it.
20 CFR 726.111
In its initial notice of proposed rulemaking, the Department
proposed deleting a reference to indemnity bonds and negotiable
securities in favor of a more general reference to the security
required to be provided by a self-insured operator. 62 FR 3369 (Jan.
22, 1997). The Department did not discuss the regulation in its second
notice of proposed rulemaking. See list of Changes in the Department's
Second Proposal, 64 FR 54971 (Oct. 8, 1999). The Department has revised
the regulation to clarify its meaning. No comments were received
concerning this section, and no other changes have been made in it.
20 CFR 726.114
In its initial notice of proposed rulemaking, the Department
proposed adding subsection (c) to codify the Department's position that
self-insured coal mine operators who cease mining coal nevertheless
have a continuing responsibility to maintain adequate security to cover
their potential liability under the Black Lung Benefits Act. The
Department also replaced a specific reference to negotiable securities
and indemnity bonds in subsection (b) with a more general reference to
the security required to be provided by a self-insured operator. 62 FR
3369 (Jan. 22, 1997). The Department did not discuss the regulation in
its second notice of proposed rulemaking. See list of Changes in the
Department's Second Proposal, 64 FR 54971 (Oct. 8, 1999). In the third
sentence of subsection (a), the Department has replaced the word
``have'' with the word ``has'' to make the sentence grammatically
correct. The Department has also revised subsections (a) and (c) to
clarify their meaning. No comments were received concerning this
section, and no other changes have been made in it.
Subpart C
20 CFR 726.203
(a) The Department made technical revisions to Sec. 726.203 in its
first notice of proposed rulemaking, but did not open the regulation
for comment. See
[[Page 80027]]
list of Technical revisions, 62 FR 3340-41 (Jan. 22, 1997). At the
Department's July 22, 1997 hearing in Washington, D.C., however, the
Department heard testimony indicating that, since 1984, the insurance
industry had used an endorsement for black lung insurance that differed
from the endorsement set forth in Sec. 726.203. 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
industry stated that the Department had approved use of the new
endorsement. Because the Department's records contained no document
authorizing use of a different endorsement, the Department opened the
regulation for comment, and invited the industry to produce proof that
the Department had approved the change. In addition, the Department
invited comment on the endorsement language that the insurance industry
had supplied. 64 FR 55005-06 (Oct. 8, 1999).
(b) In response to the second notice of proposed rulemaking, the
insurance industry submitted two affidavits. Rulemaking Record, Exhibit
89-37, Appendix G. One, from a former vice president and general
counsel of the National Council on Compensation Insurance (NCCI),
states that ``NCCI was informed by officials of the Office of Workers'
Compensation Programs, in writing, that the agency had no objection to
the changes.'' The affidavit also states that the changes were put into
use. The other affidavit, from NCCI's current general counsel, states
that NCCI's schedule for the retention of records requires the council
to maintain correspondence for 10 years, and that correspondence more
than 10 years old is destroyed in accordance with established policy.
Accordingly, the affiant stated, NCCI was unable to produce a copy of
the Department's ``acknowledgment'' of the revised insurance
endorsement.
The Department has conducted a second thorough search of its files,
including files in the Office of Workers' Compensation Programs, the
Employment Standards Administration, and the Office of the Solicitor.
Although the Department's files contain correspondence with NCCI dating
back to 1984, the Department's search failed to produce any
correspondence in which the Department approved NCCI's revised
insurance endorsement. Moreover, the Department does not believe that
it would have approved the proposed revision. The revision differs in
two material respects from the endorsement set forth in Sec. 726.203.
First, the revision limits an insurer's liability for claims that are
based on employment that ended before an operator first obtained
insurance to secure its liability under the Act. Second, the revision
limits an insurer's liability for claims that are approved as a result
of amendments to the Black Lung Benefits Act.
The current black lung insurance endorsement obligates an insurer
to provide coverage to an operator in two different types of claims.
First, the insurer is liable when the miner's last exposure to coal
mine dust in the employment of the insured ``occurs during the policy
period.'' Thus, if a miner is last employed by XYZ Coal Company on
March 1, 1990, and XYZ Coal Company is the coal mine operator
responsible for the payment of that miner's benefits, the insurer whose
policy covered XYZ on March 1, 1990 will be liable for the payment of
those benefits. In addition, however, the endorsement covers a second
type of claim. Prior to the Black Lung Benefits Reform Act of 1977, the
Black Lung Benefits Act obligated employers to pay benefits to former
employees who were totally disabled due to pneumoconiosis arising out
of coal mine employment, no matter when their employment ended. See
Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15-16 (1976) (observing
that the Act has ``some retrospective effect''). Because operators were
not required to purchase insurance until January 1, 1974, however, the
endorsement contained a second clause providing coverage if the miner's
last exposure in the employment of the insured operator ``occurred
prior to (effective date) and claim based on such disease is first
filed against the insured during the policy period.'' Thus, if a miner
last worked for XYZ Coal Company in 1972, but did not file a claim
until July 1, 1978, the insurer whose policy covered XYZ on the 1978
filing date would be liable for the miner's benefits.
The regulations define the term ``effective date'' in the
endorsement as the effective date of the operator's first insurance
policy providing coverage for the operator's federal black lung
benefits liability. 20 CFR 726.203(b) (1999). Thus, if the operator did
not obtain its first policy until January 1, 1974, that policy would
cover any claims based on employment that ended prior to that date. The
revised endorsement offered by the insurance industry replaces the term
``effective date'' with the date ``July 1, 1973.'' Although a number of
operators did purchase insurance before January 1, 1974, none did so
until after July 1, 1973. Accordingly, the industry's revised
endorsement would potentially leave coal mine operators uninsured for
certain claims. For example, if an operator did not purchase insurance
until November 1, 1973, the revised endorsement would cover the miner's
last exposure in the employment of the insured operator only if it
``occurred prior to July 1, 1973,'' and therefore would not cover any
claims based on employment that ended between July 1, 1973 and November
1, 1973. If the coal company is still in business, the claim would be
the responsibility of that company. If the coal company is no longer in
business, the claim would become the responsibility of the Black Lung
Disability Trust Fund. Either result is unacceptable. Although the
Department recognizes that this change would not affect a significant
number of claims, it could materially alter the liability of the
insurance industry in some cases. Thus, the Department does not believe
that the revision is appropriate.
The second material change in the endorsement is potentially more
serious. The current endorsement obligates an insurer for liability
that arises under the Black Lung Benefits Act and ``any laws amendatory
thereto, or supplementary thereto, which may be or become effective
while this policy is in force.'' Following the Black Lung Benefits
Reform Act of 1977, several Virginia coal mine operators sued two
insurers in federal district court to obtain a declaratory judgment
regarding the coverage of claims that were subject to approval under
the new criteria. The court agreed with the operators and held that,
under the Department's endorsement, a policy was ``in force'' as long
as claims could be filed against it. National Independent Coal
Operators Association, Inc. v. Old Republic Insurance Co., 544 F. Supp.
520, 527-8 (W.D.Va. 1982). The court accordingly rejected the argument
of the insurers that the term ``in force'' was synonymous with the term
``policy period,'' and that an insurer was liable only to the extent of
amendatory or supplementary laws enacted during the one-year period
covered by each policy. See 20 CFR 726.206 (a policy shall be issued
for the term of one year from the date on which it becomes effective).
The court stated that if the insurers had intended that meaning ``it
should have been made clear to the plaintiffs [operators] by either
using `policy period' where the words `in force' appear, or by defining
`in force' somewhere in the contract.'' National Independent Coal
Operators Association at 528.
The court's decision was issued in 1982, and the insurance industry
quickly accepted the court's invitation.
[[Page 80028]]
The revised endorsement, apparently submitted to the Department in
1983, replaces the language in the current endorsement that obligates
the insurer to cover liability resulting from amendments while the
policy is ``in force'' with a phrase obligating the insurer to cover
liability resulting from ``any amendment to the law that is in effect
during the policy period.'' This altered language would permit the
insurance industry to accomplish what it failed to win in the 1982
litigation, i.e., an exemption from liability resulting from any future
amendments. Like the other proposed change, this revision would
increase the exposure of coal mine operators and the Black Lung
Disability Trust Fund, and is therefore unacceptable to the Department.
Because the revised black lung endorsement offered by the insurance
industry materially alters the obligations and coverage provided by the
insurance industry under the Black Lung Benefits Act, the Department
must reject that endorsement. Accordingly, no changes are made to
Sec. 726.203.
(c) One comment urges the Department to add a sentence to
subsection (d) of the regulation. The sentence, which the commenter
states would conform the regulation to state regulatory regimes, would
read as follows: ``The requirements of this section shall be construed
to the extent possible, harmoniously with the workers' compensation
rules and practices of the state is [sic] when the coverage is
provided.'' Rulemaking Record, Exhibit 89-37, pp. 177-178. The
commenter does not suggest any problem in the current regulations that
this sentence is intended to correct, and the Department declines to
add a sentence whose intent is unclear. To the extent that this
sentence could be interpreted to require a result different from that
reached in Lovilia Coal Co. v. Williams, 143 F.3d 317 (7th Cir. 1998),
in which the Court of Appeals for the Seventh Circuit held that the
federal black lung insurance endorsement was not subject to exclusions
available under state law, the Department also does not believe that it
would be appropriate.
The commenter also renews a suggestion, made in response to the
first notice of proposed rulemaking, that subsections (b) and (c)(2) of
Sec. 726.203 should be eliminated. The commenter's first suggestion is
premised on the Department's acceptance of the insurance industry's
revised endorsement. As discussed above, the Department does not
believe that the revised endorsement provides necessary coverage and
therefore has refused to accept it. The commenter's second suggestion
states that the addition of subsections (b)(1) and (b)(2) to
Sec. 725.493 have created a conflict with Sec. 726.203(c)(2), and made
the latter provision redundant. The Department disagrees because the
two regulations serve wholly different purposes. Section 725.493(b)(1)
governs the liability of prior and successor operators in two cases:
(1) Where the miner was employed by the successor after the sale giving
rise to successor liability; and (2) where the miner was never employed
by the successor operator. Subsection (b)(2) governs the successor
liability of companies whose relationship to the prior operator is as a
parent company, as members of joint ventures, a partner, or a company
that substantially owned or controlled the prior operator. Section
726.203(c)(2) governs the interpretation of the insurance contract in a
case where the insured company is liable as a successor operator.
Because the sections 725.493 and 726.203 govern different subjects, the
Department does not believe that the regulations are in conflict, or
that subsection (c)(2) is redundant.
(d) No other comments were received concerning this section, and no
changes have been made in it.
20 CFR 726.208
Although the Department received comments under this section, the
regulation was not open for comment, see 62 Fed. Reg. 3341 (Jan. 22,
1997); 64 Fed. Reg. 54970 (Oct. 8, 1999). The Department made only a
technical change to the regulation in the second notice of proposed
rulemaking. Accordingly, no changes are being made in this section.
20 CFR 726.211
Although the Department received comments under this section, the
regulation was not open for comment, see 62 Fed. Reg. 3341 (Jan. 22,
1997); 64 Fed. Reg. 54970 (Oct. 8, 1999). The Department made only a
technical change in the regulation. Accordingly, no changes are being
made in this section.
Subpart D
20 CFR 726.300-726.320
(a) In its first notice of proposed rulemaking, the Department
proposed a complete revision of the procedural and substantive
regulations governing the imposition of civil money penalties against
operators that fail to secure the payment of benefits under the Black
Lung Benefits Act, 30 U.S.C. 933(d)(1). 62 FR 3370 (Jan. 22, 1997).
These revisions included a series of graduated penalties based on the
number of the operator's employees, the length of time the operator's
uninsured status continues following notification, and its constructive
and actual notice of its obligation to secure. In addition, the
Department proposed allowing the initial assessment of penalties by the
Office of Workers' Compensation Programs to become final if neither the
operator nor its officers filed a timely notice of contest. The
proposal also subjected decisions of administrative law judges on
penalty issues to discretionary review by the Secretary. The Department
did not discuss these regulations in its second notice of proposed
rulemaking. See list of Changes in the Department's Second Proposal, 64
FR 54971 (Oct. 8, 1999).
(b) The Department has made several minor changes to the
regulations in Subpart D of Part 726. In Sec. 726.302(c)(3) and (4),
the Department replaced a reference to subsection (b) with a reference
to subsection (c)(2)(i) to correctly identify the applicable provision.
In Sec. 726.308, the Department corrected the address of the Black Lung
Benefits Division of the Office of the Solicitor and added a reference
to Sec. 725.311, which lists federal holidays. In Sec. 726.313(f), the
Department replaced the word ``will'' with the word ``shall'' to
clarify the Department's intent. The Department has made minor
revisions to Secs. 726.300, 726.301, 726.302, and 726.305 to clarify
their meanings.
(c) One comment is critical of the Department's failure to enforce
its current requirement (20 CFR Sec. 725.495 (1999)) that coal mine
operators either purchase commercial insurance or qualify as self-
insured entities. The commenter argues that if Sec. 725.495 was
enforced to its fullest extent, the Department would not find it
necessary to alter the methods used to identify responsible operators.
The Department provided a detailed explanation of the purpose behind
its proposed revision of the civil money penalty regulations in its
initial notice of proposed rulemaking. 62 FR 3370-71 (Jan. 22, 1997).
Subpart D of part 726 replaces Sec. 725.495 with a comprehensive scheme
for the imposition of graduated penalties on those operators who fail
to secure their liability for benefits. The previous regulation
required only that an administrative law judge levy the maximum penalty
possible in the absence of ``mitigating circumstances,'' and provided
no guidance or criteria for determining an appropriate assessment. The
revised regulations fill this void. The Department thus disagrees with
the commenter's view that vigorous enforcement of penalties under 20
CFR
[[Page 80029]]
Sec. 725.495 (1999) would eliminate the need to revisit the
Department's method of identifying responsible operators. Consequently,
the revised regulations represent a necessary exercise of the
Department's rulemaking authority.
(d) One comment generally characterizes this revision as adding
``onerous'' penalties to the current program, but makes no specific
criticism of them. The revised Subpart D of part 726 does not add any
penalty not specifically authorized by 30 U.S.C. Sec. 933(d), and not
contained in the previous regulations. Moreover, the graduated scale of
penalties contained in the revision provides specific guidelines for
computing penalties and may result in a lesser penalty being imposed
than the former regulation would have required. This comment does not
provide any other basis for a substantive response by the Department.
(e) One comment observes that the prospect of civil money penalties
may encourage an unsecured operator to pass on its liabilities to an
insured successor whose carrier has not collected a premium reflecting
the additional liability. To the extent that such a possibility exists
in cases where the prior operator subsequently becomes unable to pay
benefits to its former employees, it implicates business
considerations, not legal questions. An insured operator should weigh
the potential effect of acquiring an entity with unsecured benefits
liability as a factor in the financial soundness of making the
acquisition. The possibility of adverse economic effects on some future
mergers or acquisitions, however, does not excuse the Department's
obligation to enforce compliance with the Act's insurance requirements
and to penalize a failure to comply.
(f) Two comments approve of the proposed civil money penalties. No
other comments were received concerning this subpart, and no other
changes have been made in it.
20 CFR Part 727
(a) In its first notice of proposed rulemaking, the Department
proposed deleting Part 727 from title 20 of the Code of Federal
Regulations. 62 FR 3371, 3435 (Jan. 22, 1997). The Department explained
that the Part 727 regulations, which govern black lung benefits claims
filed prior to April 1, 1980, are relevant only to a small minority of
the claims currently pending. Because the parties to those claims are
already familiar with the standards in Part 727, the Department
proposed to discontinue the annual publication of that part. In lieu of
continued publication, section 725.4(d), as revised, will refer
individuals to the 1999 version of title 20 of the Code of Federal
Regulations for a copy of the regulations. See discussion of
Sec. 725.4, above; 62 FR 3348, 3386 (Jan. 22, 1997). The Department did
not discuss Part 727 in its second notice of proposed rulemaking. See
list of Changes in the Department's Second Proposal, 64 FR 54971 (Oct.
8, 1999).
(b) Three comments urge the Department not to discontinue its
annual publication of Part 727 because the part governs claims still
pending in various stages of adjudication. Although the Department
recognizes that the Part 727 regulations are applicable to some pending
claims, the Department does not believe that the existence of this
relatively small number of cases justifies the continued publication of
the part in the Code of Federal Regulations. The parties to these
claims are already familiar with the regulations, and have received
sufficient notice of the Department's intention to cease publication to
allow them to retain their current copies of the Code. Accordingly, the
Department has discontinued the annual publication of Part 727.
(c) No other comments were received concerning this part, and no
changes have been made in it.
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, 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 in any one
year.
Executive Order 13132
The Department has reviewed this rule in accordance with Executive
Order 13132 regarding federalism, and has determined that it does not
have ``federalism implications.'' The rule does not have ``substantial
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
Paperwork Reduction Act
The changes establish no new record keeping requirements. Moreover,
they reduce the volume of medical examination and consultants' reports
which currently are created solely for 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).
The preamble to the RFA provides in part as follows:
It is the purpose of this Act to establish as a principle of
regulatory issuance that agencies shall endeavor, consistent with
the objectives of the rule and of applicable statutes, to fit
regulatory and informational requirements to the scale of the
businesses, organizations, and governmental jurisdictions subject to
regulation. To achieve this principle, agencies are required to
solicit and consider flexible regulatory proposals and to explain
the rationale for their actions to assure that such proposals are
given serious consideration.
Pub. L. 96-354, 94 Stat. 1165 (1980).
The RFA outlines in some detail the analysis required for
compliance. Unless the agency certifies that the rule will not have ``a
significant economic impact 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.
[[Page 80030]]
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 impact.''
In light of the comments the Department received in response to the
first notice of proposed rulemaking, the Department included in its
second notice of proposed rulemaking an initial regulatory flexibility
analysis. That analysis included each of the components identified by
the RFA: (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 would apply; (4) a description of
projected reporting, recordkeeping, and other compliance requirements
of the proposed rule; and (5) an identification of any rules that would
overlap, duplicate, or conflict with the proposed rule. 5 U.S.C.
603(b). Finally, as is also required by the RFA, the analysis contained
a description of alternatives to the rule. 5 U.S.C. 603(c). 64 FR
55006-09 (Oct. 8, 1999).
The Regulatory Flexibility Act ``plainly does not require economic
analysis.'' Alenco Communications, Inc. v. FCC, 201 F.3d 608, 625 (5th
Cir. 2000). Because of the serious concerns raised in the comments to
its initial notice of proposed rulemaking, however, the Department
undertook an extensive analysis of the effect of its proposed rule on
the coal mining industry in general and on small businesses, as defined
by the Small Business Administration, in particular. Rulemaking Record,
Exhibit 80. That analysis determined that the potential costs of the
Department's rule would be imposed on most coal mine operators through
higher insurance premiums, and that, in the long term, those insurance
premiums could be expected to rise by 39.3 percent. Exhibit 80 at p.
44. The analysis assumed that all coal mine operators purchased
insurance to cover their obligations, although it noted that this
assumption probably overstated costs with respect to operators that are
authorized to self-insure. Logically, operators self-insure only if
they may do so at a lower cost. Exhibit 80 at p. 44. The analysis
calculated that an increase in premiums of this magnitude would result
in a total annual cost to the industry between $32.22 million and
$88.32 million, with a point estimate of $57.56 million. Exhibit 80 at
p. 46. The Department believes that these figures contain substantial
upward biases, and that they therefore overstate, by a considerable
amount, the total cost to industry. Specifically, the Department
estimated the costs based on the insurance premiums paid by underground
coal mine operators. The insurance premiums paid by surface mine
operators, which employ a substantial percentage of the people working
in coal mine employment, are significantly lower. (See the economic
analysis prepared by Milliman & Robertson, Inc., at p. 6, Table 4;
Rulemaking Record Exhibit 89-37, Appendix A.) In addition, coal mine
operators who self-insure their liabilities under the Black Lung
Benefits Act may be assumed to do so because their costs are lower than
the costs of commercial insurance. Although it is conservatively high,
the Department believes the $57.56 million point estimate to be the
most useful indicator of industry costs. The analysis concluded that
the effects of this rise in insurance costs would be most heavily felt
by underground bituminous coal mine operators with less than 20
employees, who would be in a poorer position to recoup those costs.
Some of those operators, the analysis observed, might be forced to
suspend operations. Exhibit 80 at pp. 56-59.
The RFA also requires that agencies assure that small businesses
have an opportunity to participate in the rulemaking ``through the
reasonable use of techniques such as--* * * 3) the direct notification
of interested small entities; * * *'' 5 U.S.C. 609(a)(3). Accordingly,
the Department mailed a copy of its second notice of proposed
rulemaking, including its initial regulatory flexibility analysis, to
each coal mine operator identified in a database maintained by the Mine
Safety and Health Administration. In addition, the Department made a
copy of its economic analysis available to any interested party that
requested it and posted it on the Internet. 64 FR 55008 (Oct. 8, 1999).
Finally, because the Department did not complete its mailing of the
proposal until November 5, 1999, it extended the comment period through
January 6, 2000 to ensure that each small business was given no less
than 60 days to submit comments, the length of the original comment
period in the second notice of proposed rulemaking. 64 FR 62997 (Nov.
18, 1999).
Finally, the Regulatory Flexibility Act requires that when an
agency promulgates a final rule after having been required to publish a
notice of proposed rulemaking, the agency must prepare a final
regulatory flexibility analysis. That analysis must contain:
(1) a succinct statement of the need for, and objectives of, the
rule;
(2) a summary of the significant issues raised by the public
comments in response to the initial regulatory flexibility analysis, a
summary of the assessment of the agency of such issues, and a statement
of any changes made in the proposed rule as a result of such comments;
(3) a description of and an estimate of the number of small
entities to which the rule will apply or an explanation of why no such
estimate is available;
(4) a description of the projected reporting, recordkeeping and
other compliance requirements of the rule, including an estimate of the
classes of small entities which will be subject to the requirement and
the type of professional skills necessary for preparation of the report
or record; and
(5) a description of the steps the agency has taken to minimize the
significant economic impact on small entities consistent with the
stated objectives of applicable statutes, including a statement of the
factual, policy, and legal reasons for selecting the alternative
adopted in the final rule and why each one of the other significant
alternatives to the rule considered by the agency which affect the
impact on small entities was rejected.
5 U.S.C. 604(a). The agency must make a copy of its final regulatory
flexibility analysis available to the public, and must publish its
analysis or a summary of its analysis in the Federal Register. 5 U.S.C.
604(b). The Department's final regulatory flexibility analysis is
published below.
Need for, and Objectives of, the Rule
The Department discussed its need to revise the black lung
regulations in its initial regulatory flexibility analysis. 64 FR
55006-07 (Oct. 8, 1999). In that analysis, the Department observed that
the revisions satisfied a number of different objectives. First, many
of the revisions simply updated the regulations implementing the Black
[[Page 80031]]
Lung Benefits Act. The Department's initial analysis provided examples
of much needed regulatory updates such as those needed to reflect
decisions of the courts of appeals and to clarify the Department's
original intent when certain regulations were promulgated. Similarly,
the Department noted the proposed regulatory revisions reflected
changes that had occurred over the previous 20 years in the diagnosis
and treatment of pneumoconiosis. Paragraphs (1), (3), (4), and (6) of
the section entitled ``Reasons for, and Objectives of, the Proposed
Rule,'' discussed areas in which the Department sought to update its
regulations.
The black lung program regulations were in need of significant
revision to make them current. The Department last made substantive
revisions to certain regulations in 1983, see 48 FR 24272 (May 31,
1983), and those revisions reflected only substantive changes made to
the Black Lung Benefits Act by the Black Lung Benefits Revenue Act of
1981, Pub. L. 97-119, Title I, 95 Stat. 1635 (1981) and the Black Lung
Benefits Amendments of 1981, Pub. L. 97-119, Title II, 95 Stat. 1644
(1981), both of which became effective on January 1, 1982. Most of the
regulations have not been revised since they were originally
promulgated: Part 718 in 1980, Part 722 in 1973, and Parts 725 and 727
in 1978. See 45 FR 13678 (Feb. 29, 1980); 38 FR 8328 (March 30, 1973);
43 FR 36772 (Aug. 18, 1978). Some regulations, however, did not reflect
the amendments to the Black Lung Benefits Act enacted over the last
quarter century. For example, Part 722 sets forth criteria states must
meet when seeking certification from the Secretary that their workers'
compensation programs provide ``adequate coverage'' for occupational
pneumoconiosis. These regulations were never revised in light of either
the Black Lung Benefits Reform Act of 1977, Pub. L. 95-239, 92 Stat. 95
(1978), or the Black Lung Benefits Amendments of 1981. Similarly, the
Secretary's Part 725 regulations required revision in order to reflect
amendments to other statutes. For example, revised Sec. 725.621
reflected the Debt Collection Improvement Act of 1996, Pub. L. 104-334,
110 Stat. 1358 (1996), see preamble to first notice of proposed
rulemaking, Sec. 725.621, 62 FR 3369 (Jan. 22, 1997). Section 725.515
was revised to reflect amendments to the Social Security Act, see
preamble to second notice of proposed rulemaking, Sec. 725.515, 64 FR
55001 (Oct. 8, 1999). Section 725.544 was amended to reflect the
statutory increase in the dollar amount of claims which may be
compromised by the United States and to reflect the repeal of the
Federal Claims Collection Act, see preamble to second notice of
proposed rulemaking, Sec. 725.544, 64 FR 55002 (Oct. 8, 1999).
In addition, over the last two decades, many of the regulations in
Parts 718 and 725 have been interpreted by both the Benefits Review
Board and the federal appellate courts. The Department strongly
believes that, where these interpretations represent a consensus of
opinion as to the meaning and correct application of particular
regulations, that consensus should be embodied in the Department's
regulations. One commenter correctly observes that none of these courts
specifically ordered the Department to revise its regulations. The
Department believes, however, that the interests of all parties to the
adjudication of a claim--coal mine operators and their insurers as well
as claimants--will be better served if a judicial consensus is
reflected in the explicit language of the Department's regulations.
Incorporating such a consensus will allow both the parties and the
adjudication officer to use a current version of the regulation that
does not require constant recourse to databases of federal case law.
Moreover, the black lung program serves a population of applicants--
individuals who spent their working lives in the Nation's coal mines--
who cannot be expected to be aware of all of the judicial decisions
bearing on their eligibility for benefits, and who thus cannot be
expected to bring them to the attention of the administrative law
judges who conduct formal hearings on applications for benefits under
the Act.
For example, the substantive criteria governing a claimant's
eligibility for benefits, set forth in Part 718, have been the subject
of numerous appellate decisions. The Department's preamble discussion
of Sec. 718.201 contains citations to a considerable body of case law
recognizing that pneumoconiosis, as defined by the Act and the
Department's regulations, includes obstructive lung disease arising
from coal mine dust exposure. Similarly, the preamble discussion of
Sec. 725.309 references those decisions noting that pneumoconiosis is a
latent, progressive disease. See preamble to Sec. 718.201, paragraph
(f), preamble to Sec. 725.309, paragraph (b). The Department's revised
definition of ``pneumoconiosis'' in Sec. 718.201 explicitly
incorporates both of these principles. The Department's revisions of
Secs. 718.204 (criteria for establishing that a miner suffers from
total disability due to pneumoconiosis) and 718.205 (criteria for
establishing that a miner died due to pneumoconiosis) codify nearly
unanimous case law interpreting the Department's prior regulations. See
preamble to Sec. 718.204, paragraph (d), explaining that the definition
of ``total disability'' requires proof of a totally disabling
respiratory or pulmonary impairment, preamble to Sec. 718.205,
paragraph (d), providing practical meaning to the regulatory standard
that death is due to pneumoconiosis when pneumoconiosis is a
substantially contributing cause of death; see also 62 FR 3345 (Jan.
22, 1997) (citing cases defining when total disability is due to
pneumoconiosis under 20 CFR 718.204 (1999)). Similarly, revised
sections 725.309, governing subsequent claims filed by the same
individual, and 725.310, governing requests for modification of a
claim, reflect a body of decisional law that has developed since these
regulations were promulgated in 1978. See preamble discussions of
Sec. 725.309, 62 FR 3351-52 (Jan. 22, 1997), 64 FR 54984-85 (Oct. 8,
1999), and above; and preamble discussions of Sec. 725.310, 62 FR 3353-
54 (Jan. 22, 1997), 64 FR 54985-86 (Oct. 8, 1999), and above.
The Department also believes that, where the Board or the appellate
courts have identified issues which the regulations do not adequately
address, regulatory action is appropriate to correct that omission.
Thus, section 725.495 addresses a problem observed by the Fourth
Circuit Court of Appeals in Director, OWCP v. Trace Fork Coal Co., 67
F.3d 503, 507 (4th Cir. 1995), viz., 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.'' Similarly,
where the Board or the appellate courts have interpreted a regulation
in a manner different from that intended by the Department, the only
way to ensure that the Department's intent is fulfilled is to amend the
regulations. See, e.g., preamble to first notice of proposed
rulemaking, Sec. 718.101, 62 FR 3341 (Jan. 22, 1997) (noting intent
that standards for ensuring the quality of medical evidence be made
uniformly applicable to all new evidence developed in the claims
adjudication process).
Finally, in order to update its regulations, the Department also
needed to revise certain provisions in light of its experience
administering the program for over 25 years. This experience had
demonstrated that the regulations did not adequately address certain
issues. For example, the former regulations provided little guidance as
to when a claimant could reasonably expect the payment of monthly and
retroactive
[[Page 80032]]
benefits from coal mine operators, see preamble to first notice of
proposed rulemaking, Sec. 725.502, 62 FR 3365-66 (Jan. 22, 1997).
Similarly, the Department had learned that the rules governing
overpayments and their possible waiver varied depending on whether the
overpayment was made by the Black Lung Disability Trust Fund or a coal
mine operator, see preamble to first notice of proposed rulemaking,
Sec. 725.547, 62 FR 3366 (Jan. 22, 1997).
In addition to making its regulations current, the Department
intended to revise its regulations to streamline the adjudication of
claims under the Act. 62 FR 3338 (Jan. 22, 1997). The Department felt
this need was critical and hoped to ensure that the resulting process
for determining a claimant's eligibility was both simple and equitable.
For example, the Department had been widely criticized for delays in
the adjudication process. In response, the Department has made
considerable changes in the initial processing of claims. The
Department's revisions begin with the manner in which each miner who
files an application for benefits is afforded a complete pulmonary
evaluation, see 30 U.S.C. 923(b). The Department's revisions will allow
each miner to select a highly qualified physician to perform his
evaluation from a list of authorized providers maintained by the
Department. See preamble discussion of Sec. 725.406, 64 FR 54988-90
(Oct. 8, 1999). The Department hopes thereby to provide each claimant
with a realistic appraisal of his condition and to provide each claim
with a sound evidentiary basis. The regulations governing the
additional development and submission of evidence will ensure that the
parties to a claim receive fewer documents to which they need to file a
response than was formerly the case. Thus, rather than issue initial
findings and a memorandum of conference, formerly provided for in the
regulations (20 CFR 725.410, 725.411, 725.417 (1999)), the district
director will issue only one decisional document at the conclusion of
his processing: a proposed decision and order. See preamble discussion
of Secs. 725.410-725.413. In addition, the revised regulations will
allow the Department to generate documents that provide a clearer and
better reasoned explanation of any evidentiary evaluation made by the
district director and a better understanding by the parties of their
rights and responsibilities. Thus, the district director will issue a
schedule for the submission of additional evidence which explains his
preliminary analysis of the results of the miner's complete pulmonary
evaluation. It will notify all parties of their right to submit
additional evidence and to obtain further adjudication of the claim.
See preamble discussion of Secs. 725.410-725.413. One of the most
important revisions made by the Department will limit the parties'
submission of documentary medical evidence. This revision will require
that the factfinder evaluate a claimant's eligibility based on the
quality of medical evidence that the parties submit, rather than the
numerical superiority of the evidence on either side. See preamble
discussion of Sec. 725.414, 64 FR 54994 (Oct. 8, 1999); 62 FR 3356-57
(Jan. 22, 1997).
Significant Issues Raised by Public Comments in Response to Initial
Regulatory Flexibility Analysis
The comments in response to the Department's initial regulatory
flexibility analysis fall into three categories: (1) Those comments
urging the Department not to promulgate regulations having any adverse
economic effect on the coal mining industry, or on one or more segments
of that industry; (2) comments contending that the assumptions
underlying the economic analysis on which the Department's initial
regulatory flexibility analysis was based were flawed, and that the
analysis thus underestimates the effect on small businesses subject to
regulation by the rule; and (3) comments suggesting regulatory
alternatives that the Department allegedly failed to consider in its
initial regulatory flexibility analysis. The Department discusses those
comments suggesting regulatory alternatives below, in the section
entitled ``Description of Steps the Agency has taken to Minimize the
Impact on Small Entities Consistent with the Stated Objectives of
Applicable Statutes.'' The Department responds to comments in the first
two categories in this section.
Several commenters argue that, in light of the costs identified by
the Department in its initial regulatory flexibility analysis, the
Department should not promulgate any revised regulations. The
Department disagrees. The regulations implementing the Black Lung
Benefits Act are badly in need of revision to reflect more than two
decades of judicial interpretation and administrative experience. In
addition, the Department believes that the process used to determine a
claimant's eligibility for benefits, and an operator's liability for
those benefits, needs to be made faster, fairer, and more credible. No
parties have benefitted from the delays that the courts of appeals have
identified in the program, see, e.g., Venicassa v. Consolidation Coal
Co., 137 F.3d 197, 198 n.2 (3d Cir. 1998) (noting ``a disturbing record
of delay in processing claims for black lung benefits in prior
cases''). The Department's regulations are intended to eliminate that
delay by, inter alia, reducing the number of steps in the district
director's processing of a claim, requiring the timely development of
evidence relevant to the issue of operator liability and eliminating
the possibility of remands from the Office of Administrative Law Judges
for the development of additional evidence as to the identity of the
liable party. The Department's revised regulations promote fairness and
credibility in claims adjudications by providing each miner with a
quality medical evaluation of his pulmonary condition when he first
applies, by explaining the Department's initial assessment of that
evidence and by informing all parties of their rights to submit
additional evidence and to request further adjudication of the claim.
One comment suggests that ``a reasonable interpretation of the
Department's own economic analysis leads to the inescapable conclusion
that the proposed rule will have a significant economic impact on a
substantial number of small entities.'' Rulemaking Record, Exhibit 89-
37, p. 24. The Department does not disagree. 64 FR 55008 (Oct. 8,
1999). The Department recognized that the rule will have an economic
impact on the coal mining industry, and in particular on underground
bituminous coal mine operators that employ less than 20 people. It is
for this reason that in its second notice of proposed rulemaking, the
Department prepared an initial regulatory flexibility analysis in lieu
of its prior certification that the proposed rule would not have a
significant economic impact on a substantial number of small entities.
64 FR 55006 (Oct. 8, 1999). The existence of an economic impact,
however, does not mean that the Department is foreclosed from
promulgating its rule. In Associated Fisheries, the First Circuit
quoted with approval from the Commerce Department's explanation of its
responsibilities under the Regulatory Flexibility Act:
The intent of the RFA is not to limit regulations having adverse
economic impacts on small entities, rather the intent is to have the
agency focus special attention on the impacts its proposed actions
would have on small entities, to disclose to the public which
alternatives it considered to lessen adverse impacts, to require the
agency to consider public comments on impacts and
[[Page 80033]]
alternatives, and to require the agency to state its reasons for not
adopting an alternative having less of an adverse impact on small
entities.
127 F.3d at 115-116. The Regulatory Flexibility Act thus vests the
Department with the responsibility for determining, in light of the
recognized costs, whether the rule should nevertheless be promulgated.
The economic analysis performed in connection with the Department's
initial regulatory flexibility analysis described the costs that the
rule would impose on the coal mining industry. That analysis was based
on a number of conservative assumptions that were designed to establish
a cost ceiling, i.e., the maximum additional costs that industry would
face as a result of these rules. For example, the analysis assumed that
all coal mine operators purchase commercial insurance. The Department
did not attempt, however, to estimate precisely the number of mines
which would close as a result of these increased costs. Instead, the
Department concluded that there was only a significant potential for
closures in the very smallest size class of underground bituminous coal
mine, those with under 20 employees. Rulemaking Record, Exhibit 80,
Exhibits O and Q. These mines will feel the greatest effect of the
Department's rule largely because of their operating characteristics.
As a group, very small coal mines are far more labor intensive (i.e.,
much less mechanized) than larger coal mines. Because the rule will
raise costs in the form of higher insurance premiums, which in turn are
based on each mine's payroll, increased premiums will represent a
substantially higher cost increase per ton of coal mined for a very
small mine than for a larger mine. Thus, based on its preliminary
economic analysis (Rulemaking Record, Exhibit 80, pp. 46-51), the
Department found that larger mines--including many mines that meet the
definition of a ``small'' business under the definition used by the
Small Business Administration--would not face significant impacts from
the rule in terms of closures.
In addition to being more labor intensive, very small underground
mines also incur the higher insurance premiums associated with
underground coal mining. Data contained in comments received by the
Department indicate that surface bituminous coal mine insurance rates
average $1.57, only 59 percent of the average underground mine
insurance rate of $2.64. Similarly, surface mine rates average only 53
percent of underground rates for eastern bituminous mines; and 37
percent of underground rates for a four-state average of Pennsylvania,
Kentucky, Virginia, and West Virginia. For anthracite coal, surface
mine insurance rates are only 44 percent of underground mine insurance
rates. Rulemaking Record, Exhibit 89-37, Appendix A, Table 4. Any
increase in insurance rates, then, assuming that all other things are
equal, will affect the price per ton of underground coal twice as much
as it will the price of coal extracted from surface mines. This
distinction renders very small underground coal mines potentially
vulnerable to closures in a way that very small surface coal mines are
not. Because the insurance rates for surface anthracite mines are also
high, very small anthracite strip mines may also be potentially
vulnerable to closure.
Additional data provided by commenters, as well as data that has
become available from the Department of Energy since publication of the
Department's initial regulatory flexibility analysis, allow the
Department to forecast the number of potential mine closures in
somewhat greater detail. This analysis confirms the Department's
preliminary conclusion that, although the regulations will have a
significant impact on some mines, the impact on the mining industry as
a whole will not be substantial. The Department's additional analysis
therefore provides no basis to reconsider the decision to promulgate
final regulations.
Mine Safety and Health Administration data are useful in
establishing the number of mines that are potentially at risk of
closure. The Department emphasizes, however, that this data addresses
only the mines that are potentially at risk of closure because of the
Department's rulemaking. The actual effects of the rule can be
determined only by establishing the ``base case'' of mines that could
be expected to close even if the Department does not promulgate its
final rule. In 1998, 1,609 mines produced bituminous coal. An
additional 743 bituminous mines are listed in the MSHA data but
produced no coal during 1998. Of the 1,609 producing mines, 791 were
underground mines, and 263 of the underground mines had fewer than 20
employees. Of these 263 mines, 37 produced over 100,000 short tons of
coal in 1998. Because mines with fewer than 20 employees that produced
over 100,000 short tons have high labor productivity, the Department
does not believe that they will be significantly impacted by a rule
whose primary effects are felt through increased insurance premiums
that are based on labor costs. Subtracting these 37 mines from the 263
very small underground mines leaves 226 mines. The mines are located in
Kentucky (81 mines), West Virginia (71 mines), Virginia (52 mines),
Pennsylvania (14 mines), Tennessee (5 mines), and Alabama (3 mines).
These mines are extremely small, employing a total of only 2,586
people. Median 1998 employment per mine was 11; mean employment was
11.4. Median production was 25,957 short tons of coal; mean production
was 34,273 short tons.
The Department's previous economic analysis demonstrated that very
small underground mines with first quartile accounting profits (the
one-quarter of these mines with lowest profits) might be forced to
close as a result of the rule, but that mines with median accounting
profits were not in such jeopardy. For purposes of estimating the
potential number of mine closures, however, the Department will assume
that as many as three-eighths of these mines (the half-way point
between .25, representing the first quartile, and .5, representing the
second) are at risk. Multiplying this figure (.375) by the total number
of very small underground bituminous mines (226) yields a total of 85
mines. According to MSHA data, these 85 underground bituminous mines
represent 5.3 percent of all producing bituminous coal mines, employed
1.3 percent of the miners engaged in bituminous coal mine employment,
and accounted for 0.3 percent of bituminous coal production.
MSHA data indicate that 117 mines produced anthracite in 1998. An
additional 87 anthracite mines are listed in the MSHA data but produced
no coal during 1998. Of the 117 producing mines, 60 were strip mines,
39 were underground mines, and 18 were culm bank/refuse pile
operations. Of the 117 mines, 12 (10 strip mines, 1 underground mine,
and 1 culm bank operation) had 20 or more employees, and only 3 had
more than 50 employees. An additional 6 mines (3 strip mines and 3 culm
bank operations) produced over 100,000 short tons in 1998. Culm bank
operations and mines with 20 or more employees or over 100,000 tons
output do not appear to be at risk of closure. Culm banks are discussed
in detail below in response to a comment regarding the Department's
assumptions about price elasticity. Thus, the population of very small
anthracite mines consists of 85 mines. This total includes 47 strip
mines (60 total strip mines minus 10 strip mines with 20 or more
employees minus 3 strip mines that produced more than 100,000 short
tons of coal in 1998) and 38
[[Page 80034]]
underground mines (39 underground mines minus 1 mine with 20 or more
employees). These mines are extremely small. They had a total of 411
employees (220 in strip mines and 191 in underground mines). Median
1998 employment was 3; mean employment was 4.8. Median production of
these anthracite mines was 4,500 short tons (7,484 for strip mines and
2,598 for underground mines); mean production was 12,173 short tons
(17,116 for strip mines and 6,060 for underground mines).
Profit data for anthracite mines are not available. It appears
reasonable to assume, however, that very small anthracite strip mines
will be potentially subject to closure because their insurance premiums
are high, and that very small underground anthracite mines will be even
more heavily impacted. The Department will therefore assume that three-
eighths of very small anthracite strip mines (the same figure used for
bituminous mines) and five-eighths of very small anthracite underground
mines (a higher figure to take into account the possibility of a
heavier impact on these mines) are potentially in jeopardy of closure
because of costs of the rule. Thus, an estimated 42 very small
anthracite mines (18 strip mines (.375 times 47 mines) and 24
underground mines (.625 times 38 mines)) are potentially in jeopardy of
closing as a result of the rule.
The next step in forecasting the number of mines that may close as
a result of the rule is establishing the ``base case,'' i.e., the
number of mines that would close regardless of whether the Department
promulgated new regulations. This is particularly important for an
industry such as coal mining, where the number of small mines has been
declining for decades, and where a continued sharp decline is likely in
the foreseeable future. Only after establishing the base case can the
Department estimate the extent to which the rule may result in
additional closures.
The current and predicted decline in the number of small coal mines
is the result of a variety of market factors. They include electricity
deregulation, reduction in coal reserves, the use of on-time delivery
by coal company customers, equipment upgrades, increased use of low
sulfate coals, and the reduction in the number of small mining firms
due to industry consolidation over the last two decades. All of these
factors put very small coal mines, particularly underground mines, in
an increasingly disadvantageous competitive position. Because of their
size, very small coal mines have difficulty increasing productivity.
They lack the physical scale to take advantage of new, high-
productivity equipment, most of which is very large, or to adopt more
productive techniques, such as continuous miner operations or longwall
mining. Restricted space, of course, is a greater constraint in
underground coal mines than surface mines.
Many very small coal mines are also characterized by unfavorable
geological conditions. These may include thin coal veins, splitting
coal beds, fractures or offsets due to faulting, interruptions in coal
deposits or coal quality due to sandstone-or clay-filled channels, and
unstable roof rock. Such geologic conditions may well be the reason the
mine is small to begin with. They also make it costly to extract coal
and difficult to improve productivity. Mines with such geological
problems are therefore especially vulnerable to price competition. The
economic suitability of coal beds for mining is reflected in changes in
committed active reserves as the price of coal changes. Culling
reserves to eliminate hard-to-mine reserves, or ``high-grading'' of
reserve blocks, is a logical adaptation to low coal prices. From 1991
to 1996, as coal prices fell, the reserves of small mines (annual
production of 10,000 to 100,000 short tons) fell by 61.6 percent,
compared with a 12.9 percent decline for the coal mining industry as a
whole. U.S. Department of Energy, Energy Information Administration,
``The U.S. Coal Industry in the 1990's: Low Prices and Record
Production,'' (October, 1999) p. 6 (hereafter, ``U.S. Coal Industry'').
In addition, the shift in demand to low-sulfur western coal, which
has occurred in response to the Clean Air Act Amendments of 1990 and
the resulting regulations of the Environmental Protection Agency, puts
very small coal mines at a severe disadvantage. Very small coal mines
are concentrated in areas where coal has a relatively high sulfur
content. Low-sulfur coal is found predominantly in the west,
particularly in the Powder River Basin. The large strip mines that
produce low sulfur coal have easy geology (thin overburden and thick
coal beds), and their large scale results in labor productivity
approximately three times as high as that of eastern mines. This
productivity differential continues to grow. Moreover, recent
investments in track by western railroads are further lowering the
power-plant price of Powder River Basin coal.
Finally, many very small coal mines have management that may not be
well equipped with tools such as computers. Such mines are in a poor
position to adapt to practices such as on-time delivery or to utilize
other risk management techniques that utility deregulation is making
increasingly important in coal mine operation. Independent very small
coal mines are also, by virtue of their size, in a relatively poor
position to participate in strategic inter-fuel alliances, an
increasingly common result of utility deregulation.
Because of all of these market factors, the outlook for independent
very small mines is extremely bleak. The Department's preliminary
economic analysis, in fact, was based on the observation that the base
case already includes extensive closures of very small mines. Over the
last 15 or 20 years, the market forces discussed above have eliminated
a large majority of very small mines. Data collected by the Energy
Information Administration (EIA) indicate that in the 11 years between
1986 and 1997 the number of coal mines with annual production of less
than 10,000 short tons decreased from 1,069 to 281 (a total of 74
percent), while production of mines of this size decreased from 4.4
million short tons to 1.2 million tons, or by 73 percent. In the same
period, the number of coal mines with annual production of 10,000 to
100,000 short tons decreased from 1,956 to 638 (a 67 percent decrease),
while production of mines of this size decreased from 82.8 million
short tons to 27.8 million short tons, or by 66 percent. EIA, U.S. Coal
Industry, p. 3, Table 1.
To estimate both baseline closures and closures that may be
considered impacts of the rule, two regression models were created
using EIA data for 1986 through 1998. Both used the log of the number
of underground bituminous coal mines with production in the range of
10,000 to 99,999 short tons. Both models used the log of the national
price of coal as an independent variable, and one also included time as
an independent variable. Both models had high statistical significance
by any measure. Using EIA projections of coal price changes (see
Department of Energy, Energy Information Administration, ``Challenges
of Electric Power Industry Restructuring for Fuel Suppliers''
(September 1998) (hereafter, ``Challenges,''), Table ES1, p. 13), the
models were used to forecast the percentage decrease in the number of
coal mines in the base case in the years 2005 and 2015, and the
decreases that may result from the Department's rule during the same
interval.
[[Page 80035]]
The log-log model with no time variable predicted a baseline
decrease in underground bituminous mines of 32 percent from the year
1998 to the year 2005 and a baseline decrease in underground bituminous
mines of 61 percent from 1998 to 2015. Of the 85 bituminous mines
identified as in jeopardy of closure, therefore, this model forecast
that 27 would close by 2005 and 52 would close by 2015, even without
the costs of the rule. When costs of the rule for the very small class
of mines was added, the predicted decreases in the number of mines were
39 percent (or 33 mines) between 1998 and 2005 and 66 percent (or 56
mines) between 1998 and 2015. Thus the model predicts that the costs of
the rule would result in the additional closure of 6 mines (33 mines
minus 27 mines) as of 2005 but only 4 more mine closures (56 mines
minus 52 mines) than the baseline as of 2015.
The model with a time variable predicted much sharper baseline
decreases in the number of mines (43 percent decrease by 2005 and 86
percent by 2015) and impacts of the rule of about 0.4 mine closures by
both years. It should also be noted that, because complete data were
not available, neither model included mines producing less than 10,000
short tons, which have been closing at a faster rate than the mines
that were included in the model. Thus, use of results from the model
without a time variable represents a conservatively low choice of
estimate of baseline closures.
A similar procedure was used for anthracite mines, with some
modifications. Separate models were estimated for underground mines and
strip mines, but total mines were used for the dependent variable. The
log-log form without a time variable is reported. For the 24 at-risk
underground anthracite mines, the model forecasts a base-case decrease
in the number of mines of 21 percent as of 2005 (5 mines) and 43
percent as of 2015 (10 mines). Considering the additional costs imposed
by the rule, the forecasts were decreases of 29 percent as of 2005
(1.92 additional mines) and 48 percent as of 2015 (1.2 additional
mines). For the 18 at-risk surface anthracite mines, the model
forecasts a base-case decrease in the number of mines of 8 percent as
of 2005 (1 mine) and 20 percent as of 2015 (4 mines). Considering the
additional costs imposed by the rule, the forecasts were decreases of
10 percent as of 2005 (.36 additional mines) and 21 percent as of 2015
(.18 additional mines).
The Regulatory Flexibility Act does not require the Department to
extrapolate its projection of the cost of its rulemaking activity in
order to determine the rule's collateral effects, i.e., the extent to
which the mining industry will absorb the costs of compliance by
reducing either employment or output. It is possible, however, to make
a rough estimate of these effects. The number of incremental closures
of bituminous mines due to the rule (rather than the base case), was
projected to be 6 mines as of 2005 and 4 mines as of 2015. This
conclusion is consistent with the Department's previous analysis, which
observed that the largest impact of the rule would be to close some
mines sooner than they would have closed in the base case. Estimated
employment impacts related to closures would be 70 jobs as of 2005 and
45 jobs as of 2015. Estimated production impacts related to closures
would be 208,880 short tons of bituminous coal annually as of 2005 and
133,736 short tons as of 2015. Since the mines which may close
presumably have relatively low productivity, the overall effect would
be to raise industry productivity. The estimated level of impacts--
about one-eighth of the baseline closure rate as of 2005 and one tenth
the baseline closure rate as of 2015--is much too small to have a
meaningful impact on the competitive structure of the industry.
The Department projected the number of incremental closures of
anthracite mines due to the rule (rather than the base case) to be 2.28
mines as of 2005 and 1.38 mines as of 2015. Under this projection, the
estimated maximum employment loss related to closures would be 10 jobs
as of 2005 and 7 jobs as of 2015. This projected job loss assumes that
no additional jobs are created elsewhere in the anthracite industry.
Estimated production loss related to closures would be 14,564 short
tons of bituminous coal annually as of 2005 and 11,058 short tons as of
2015. Since the mines which may close presumably have relatively low
productivity, the overall effect would be to raise industry
productivity. Closure of 1 or 2 mines is not expected to have a
meaningful impact on the competitive structure of the industry.
It is also possible to assess the impact of the rule on mining
communities using the counties in which such operations are located.
Very small underground bituminous coal mines are found in 46 counties.
If closures are randomly distributed, 22 of these counties have less
than a 5 percent chance of any mine closure, 13 more have less than a
20 percent chance, 5 more have less than a 30 percent chance, and 3
more have less than a 50 percent chance of any mine closing. Thus, each
of the possibly affected counties can expect to lose no more than 6
jobs and have very little chance of losing more than a dozen. Nearly
half (42 percent) of very small underground bituminous coal mines are
located in three counties (in three separate states). Of these
counties, one can be expected (as of 2005) to have one mine closure,
and the other two less than one mine closure each. A majority (65
percent) of anthracite underground and strip mines are located in one
Pennsylvania county. This county can expect one mine closure as a
result of the rule, and the other six counties with anthracite mines
can expect one closure of a very small mine among them. Closure of one
very small anthracite mine would have an impact of approximately 5
jobs. Overall, then, only two counties are likely to experience
community impacts as great as one very small mine closing in any given
year, and in neither of those counties is the impact likely to be
greater than two very small mines closing.
The nature of the rule also makes it quite unlikely that there will
be significant impacts on coal mine employment or output beyond those
instances where mines close. The regulation has no direct effect on
mining operations. The principal effect of the rule will be a very
small increase in the cost of labor. This increased cost provides an
incentive to substitute capital for labor, and to increase labor
productivity and production generally to provide a broader base over
which to spread the costs. This substitution, like any other measure
designed to increase labor productivity, will enhance rather than
restrict improvements in productivity. The Department's analysis
already demonstrates a strong trend of increasing productivity in the
coal mining industry, and any impacts of the rule will simply reinforce
this trend.
In addition, recent history and available forecasts indicate that
the use of coal in generating electricity will continue to increase.
Any price pass-through will be small because the costs of the rule are
(for the industry as a whole) not significant. There is no other
plausible mechanism (except for closure of mines) by which the rule
could induce reductions in production. Enhancement of productivity, for
which there are incentives, will tend to increase production. Thus,
aside from mine closures, the rule will not have adverse impacts on
coal production.
Finally, there is a slight possibility that the rule may result in
a decreased workforce in mines that continue to operate. The principal
mechanism for such an impact is the incentive to
[[Page 80036]]
substitute capital for labor. A number of factors, however, make any
such impact minimal in its significance. Because the costs of the rule
are generally not significant, the incentive itself will be quite
small. Increases in production will tend to mitigate job loss. By
itself, any impact of the rule on employment is almost certainly small
enough to be handled by attrition in an industry with an annual labor
turnover rate of approximately 7 percent. Because the base case trend
toward labor saving innovation in the coal mining industry is so
strong, any adverse effect on employment will be a temporary
acceleration of job loss, rather than a net long-term impact. Moreover,
in the current strong employment market, any unemployment effects will
generally be transitory, so that their significance will be minimal.
For these reasons, aside from mine closures, the rule will not have
significant adverse impacts on employment.
The Department's initial regulatory flexibility analysis, as
supplemented by the additional study undertaken in the final regulatory
flexibility analysis, demonstrates that the Department's final rule is
being promulgated following examination of the potential effects of the
rule on small coal mine operators. The Regulatory Flexibility Act does
not dictate substantive results, or prevent the Department from acting
in such a case. See A.M.L. International, Inc. v. Daley, 107 F. Supp.
2d 90, 105 (D. Mass. 2000) (``The intent of the RFA is not to limit
regulations having adverse economic impacts on small entities.'').
Because the Department believes that a revision of the regulations
implementing the Black Lung Benefits Act is long overdue, the
Department has decided to proceed with this final rule.
The Department also received comments on its economic analysis. In
its initial regulatory flexibility analysis, the Department
specifically invited comment on the assumptions used in developing its
economic analysis, including 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. 64 FR 55008 (Oct.
8, 1999). One of the comments received by the Department, whose
conclusions were endorsed by a number of other commenters, contained an
economic analysis by Milliman & Robertson, Inc. (M&R). Rulemaking
Record, Exhibit 89-37, Appendix A.
As an initial matter, the M&R analysis criticizes the assumption in
the Department's economic analysis that the approval rate for claims
paid by responsible operators and their insurers under the revised
regulations will not exceed the approval rate for claims paid by the
Black Lung Disability Trust Fund under the former regulations. The
Department's economic analysis had assumed that the overall approval
rate for responsible operator claims (currently 7.33 percent) would not
exceed 12.18 percent, the overall approval rate for Trust Fund claims.
Rulemaking Record, Exhibit 80, p. 38. The M&R analysis states that
``DOL has offered no support for this assertion.'' M&R at p. 17, see
also Rulemaking Record, Exhibit 89-37, pp. 31-32.
The Department's analysis explicitly stated, however, that ``[t]he
proposed regulations represent the Department's past and current
practice in Trust Fund cases,'' and that ``several factors make the
Trust Fund approval rate substantially higher than the responsible
operator approval rate.'' Exhibit 80 at p. 38. These factors include
the age of applicants whose claims are payable by the Trust Fund and
the fact that most of their exposure to coal mine dust predated the
1969 federal dust standards. Thus, the Department believes that the
approval rate for Trust Fund cases will remain the same, and that the
approval rate for responsible operator cases will rise, but not to the
level of Trust Fund approvals. The Department's assumption is based on
its more than 15 years' experience in adjudicating claims for black
lung benefits under the prior regulations, and its detailed knowledge
of the evidentiary showings required for those claims' approval.
The National Mining Association, whose comment incorporates the M&R
analysis, suggests that the Department's revised definition of the term
``pneumoconiosis'' represents a considerable departure from past
practice. Specifically, the commenter takes issue with the Department's
preliminary economic analysis which refused to assign costs to the
amended definition of pneumoconiosis because inclusion of chronic
obstructive pulmonary disease arising from coal mine employment as
pneumoconiosis simply clarified the regulation and made it consistent
with past practice. Rulemaking Record, Exhibit 89-37 at 29; Rulemaking
Record, Exhibit 80 at 29. In the preamble to Sec. 718.201, the
Department has cited 14 decisions from six federal appellate courts
with jurisdiction over the vast majority of claims filed under the Act
(the Third, Fourth, Sixth, Seventh, Eighth, and Eleventh Circuits).
These courts recognize that pneumoconiosis, as it is defined in the Act
and was defined in the prior regulations, includes obstructive lung
disease arising from coal mine dust exposure. Similarly, in the
preamble to Sec. 725.309, the Department has cited 44 decisions from
seven federal appellate courts (the six listed above plus the Tenth
Circuit). These courts recognize the progressive, latent nature of
pneumoconiosis. All of these decisions reflect longstanding positions
of the Department. Because of these positions, the Department has not
attempted to deny claims because the miner's disabling lung disease was
obstructive in nature, provided that condition was shown to have arisen
out of coal mine employment, or because the miner's condition was
alleged to have progressed. The Department, therefore, does not expect
that any additional Trust Fund claims will be approved as a result of
the revised definition of pneumoconiosis. Similarly, there is simply no
reason to believe that the revised definition of pneumoconiosis will
result in a higher approval rate in responsible operator claims than in
Trust Fund claims.
The same commenter states that the limitation on documentary
medical evidence tilts the playing field toward claimants by allowing a
claimant three examinations (his choice of an approved physician to
conduct the complete pulmonary evaluation plus two more) as opposed to
the operator's two examinations. The commenter argues that this
evidentiary imbalance will increase the number of approved claims
payable by responsible operators. Rulemaking Record, Exhibit 89-37, p.
29. Again, however, the Department's Trust Fund experience forms a
reasonable upper bound of the approval rate expected under the revised
regulations. That experience demonstrates that the Department seldom
develops more than two medical reports in any individual claim for
which the Trust Fund is liable. In addition, claimants under the former
regulations had the ability to choose any physician to conduct their
initial evaluation, 20 CFR 725.406(a) (1999), subject only to a
district director's approval, which was seldom refused. Claimants
generally submitted no more than one additional medical report in
support of their applications. Thus, once again, the rate of Trust Fund
awards forms a reasonable upper boundary of the approval rate expected
in responsible operator cases under the revised regulations.
[[Page 80037]]
Finally, the commenter argues that the provision requiring that
``controlling weight'' be given to the opinion of a treating physician
will result in ``numerous'' claims being approved that previously would
have been denied. The Department does not accept this assessment. The
revisions to Sec. 718.104 require only that an adjudication officer
evaluate certain criteria to determine whether a treating physician may
have developed an in-depth knowledge of the miner's pulmonary
condition. As the Department has repeatedly emphasized, the regulation
does not require that the adjudication officer credit the opinion of
the treating physician where there is contrary evidence in the record.
To the contrary, the rule is designed to force a careful and thorough
assessment of the treatment relationship. 64 FR 54976-77 (Oct. 8,
1999); see also preamble to Sec. 718.104, paragraph (f). Accordingly,
the Department does not agree that this revision will result in the
approval of ``numerous'' additional claims. The Department stands by
its assumption in the initial regulatory flexibility analysis that any
increase in the approval rate of claims due to this regulation will be
``very small.'' Exhibit 80 at p. 34. The Department reiterates that
``[i]t is difficult to see how this provision would lead to an increase
in approval of weak or non-meritorious claims.'' Exhibit 80 at p. 27.
The commenter's assertions have thus failed to undermine the
Department's assumption that the approval rate for Trust Fund claims
represents an appropriate upper bound for estimating the approval rate
applicable to operator claims under the revised regulations.
The M&R analysis also arrives at a higher overall approval rate for
Trust Fund claims (20 percent rather than 12.18 percent) by analyzing
Trust Fund claims involving only post-1981 coal mine employment and by
eliminating claims filed by individuals with less than 10 years of coal
mine employment. M&R at p. 17 n. 41. The Department does not agree that
manipulating the data in this fashion produces a more accurate result.
First, responsible operators are also liable for claims involving pre-
1982 coal mine employment, so it is appropriate to include that group.
Second, exclusion of all claims based on less than 10 years of coal
mine employment clearly will not create a true picture of the overall
claims experience. A number of miners who are employed in the mines for
less than 10 years ultimately are determined to be eligible for
benefits. Although the M&R analysis includes claims filed by such
miners in determining the number of approved claims, Transcript,
Hearing on Proposed Changes to the Black Lung Program Regulations (July
22, 1997), p. 106 (testimony of Robert Briscoe), it excludes denied
claims filed by such miners from the total number of filed claims. In
its prior analysis, M&R stated that this exclusion was justified
because claims filed by miners with less than 10 years of coal mine
employment will not be ``present in the population of coal miners
recently leaving the coal workforce.'' Rulemaking Record, Exhibit 5-
160, Appendix 5, p. 28. The Department's database of claim filing
information, however, does not support the inference that this group
should not be counted in determining the approval rate for claims that
are being filed currently. Indeed, throughout the last decade, claims
filed by miners with less than 10 years of coal mine employment have
represented approximately one-quarter of the total number of
responsible operator claims. Because these claims continue to represent
a significant number of responsible operator claims, the Department
believes that both approved and denied claims from this group should be
counted. Accordingly, the Department does not agree that its approval
rate must be ``corrected'' by excluding these claims.
The M&R analysis also exaggerates the effect of the Department's
rule on insurance rates. M&R criticizes the Department because its
analysis ``fails to test the current federal black lung insurance rates
being charged to determine if they are a reasonable base from which to
project future cost changes * * *.'' M&R at p. 2. M&R suggests, for
example, that the rate in Kentucky is ``too low,'' M&R at p. 7, and
concludes that the corrected rate for underground bituminous mines,
when combined with the effects of the Department's regulatory revision,
will increase premiums by at least 1,075 percent. M&R at p. 8, Table 6.
The impact of the Department's regulatory revision, however, does not
include the correction of inadequate rates; such correction must be
factored in independently, not assigned as a cost of the regulations.
Moreover, M&R states that the premiums in the three other large Eastern
coal states (Pennsylvania, Virginia, and West Virginia) are
``redundant'' (and rates are ``generally redundant in the other 23 coal
mining states), suggesting that insurance companies (or in West
Virginia's case, its state-administered fund) are making excess profits
from these markets. M&R at p. 7. In this case, correcting redundant
rates should not be assigned as a benefit of the revisions. In
addition, the insurance rates used by M&R, M&R at p. 6, Table 4, whose
source is not identified, are generally lower than the rates used by
the Department by about one percentage point (i.e., by $1.00 per $100
of payroll). Because the Department's analysis of the rule's cost was
based on a percentage increase of existing rates, use of the M&R
figures would result in a substantially lower estimate of total dollar
costs. The substantial difference between the Department's analysis of
insurance rate increases and M&R's prediction derives primarily from
different assumptions about the approval rate for claims filed after
the regulations go into effect. Because the Department does not believe
that the approval rate for responsible operator claims will exceed the
approval rate for Trust Fund claims, the Department does not believe
that M&R's predictions concerning insurance rates are accurate. In any
event, insurance rate increases are subject to approval by state
authorities.
The Department also requested comment on a possible increase in the
number of claims filed as a result of this regulatory revision. The
Department's economic analysis was based on the assumption that,
although the revisions will not produce a significantly greater number
of approved claims, expectations created by the mere issuance of
regulatory revisions will cause a temporary increase in the number of
claims filed, an additional 3,440 responsible operator claims over a
two-year period. Rulemaking Record, Exhibit 80, pp. 39, 42. The M&R
analysis did not specifically address this assumption. Instead, the M&R
analysis is simply based on its own, wholly different assumption
regarding the number of claims that are likely to be filed once the
revised regulations take effect. M&R posits that ``the application of
the reproposed regulations to the large number of denied claims from
all past years will in effect rewrite the history of approvals.'' M&R,
p. 21. M&R uses an actuarial model to estimate the ``number of ultimate
claim filings that are likely to be received'' under the former
regulations and under the newly revised regulations. M&R, p. 21. From
the data provided in Table 12 of the M&R analysis, it appears that M&R
estimates that 2,567 additional claims will be filed by miners whose
last coal mine employment was during the years 1982 to 1999. However,
the Department was unable to determine what assumptions M&R made to
generate this estimate. In any case, M&R's estimate cannot be compared
with the
[[Page 80038]]
Department's, because M&R excludes claimants with less than 10 years of
coal mine employment. The Department believes that it is not necessary
to change the methodology used in the initial regulatory flexibility
analysis to estimate the likely increase in claims resulting from the
revised regulations.
The Department also received comments disputing its assumption that
coal mine operators could pass on to coal consumers by price increases
the increased costs caused by the Department's rule. Rulemaking Record,
Exhibit 80, p. 52. The Department agrees that it is difficult to
determine with precision the ability of small coal mine operators to
pass on costs to coal consumers. Indeed, the Department acknowledged in
its initial economic analysis that some small coal mine operators would
be unable to pass on these costs, and that this inability might
represent the difference between being able to continue mining
operations and suspending them. Interpreting current profit rates that
are unsustainably low or negative, however, must be done carefully,
because there are two distinct types of firms that may have such profit
rates at any one point in time. Some firms may have such rates for a
short time, because of industry cycles or the firm's unique
circumstances. These firms will rebound and may or may not experience
significant impacts from a regulation. Other firms will have negative
profits because they are already in the process of failing.
These two cases have very different implications in the analysis of
the economic impact of the Department's revisions. If a firm is in the
process of failing in any event, the impact of the revised regulations
will be small or non-existent. At most, the impact will hasten the
firm's failure by a short period of time. Neither the failure itself,
however, nor any loss of jobs, should be considered an impact of the
regulations. If a firm is about to rebound, the situation is
considerably more complicated. The issue is whether the firm will
rebound to the level that it can absorb the economic impact. It is
perfectly correct in such cases to say, as one commenter points out,
that ``additional costs imposed by regulations are certainly relevant
since the added cost of regulations will make it that much more
difficult for the firm to achieve profitability.'' Rulemaking Record,
Exhibit 89-37, p. 33. The problem is that it is extremely difficult to
predict from a negative profit rate how far a firm may rebound. One
reasonable assumption (given the very limited data) is that a
rebounding firm will achieve median profits. If that is the case, then,
as the Department's initial analysis indicated, the firm will not fail
even given the economic impact of the regulations. See Rulemaking
Record, Exhibit 80, Exhibit P.
The Department's analysis, moreover, is based on the assumption
that coal mine operators (other than culm-bank operations, discussed
below) will be unable to pass through any of the costs associated with
the Department's rule. That assumption is based on a worst-case
scenario for analytical purposes, and it does not necessarily reflect
the current state of the energy industry. Although the recent
deregulation of electric utilities has led to considerable
reorganization, the use of coal is both extensive and increasing. In
general, electric utilities currently are taking advantage of the
opportunities presented by deregulation to deal with expanding demand
by management, rather than by making major investments in new
generating capacity. In this environment, natural gas and oil are
attractive, in part, because they are used to meet on-peak demand for
electricity. As a result, most generation capacity, now in use and
currently planned, is gas-fired. The relatively low capital cost of
gas- or oil-fired generation capacity (despite the relatively high fuel
cost) makes these fuels cost-effective for the low capacity utilization
associated with on-peak power production. Coal, however, is the
mainstay of off-peak, baseline electricity generation. The different
use pattern is reflected by different capacity utilization rates. In
1996, for example, capacity utilization was 63 percent for coal-fired
power plants but only 20 percent for natural gas power plants and 11
percent for oil-fired plants. (EIA, ``Challenges,'' Chapter 1, p. I-4).
In baseline power generation, coal faces less competitive pressure and
more opportunities for investment in new capacity. Run-of-stream
hydroelectric power is limited, as is the potential for its expansion.
Nuclear generation capacity is declining because old plants are coming
off line, and no new ones are being built. As a consequence, utilities
are burning more coal--not less--and this trend is expected to
continue.
It is certainly true that long-term high-price contracts for coal
are giving way to shorter term contracts with more flexibility. Yet
even here there are mitigating factors. Only about half of current
contracts will expire by 2005. The impetus for the shift away from
long-term contracts was stimulated by stabilization of other fuel
prices at moderate levels, but quite recently oil prices have shot up
again. The point is that the current market still offers considerable
opportunities for passing costs to consumers.
Available information indicates that most of the downward pressure
on coal prices is flowing from developments within the coal industry
and intra-industry competition. Coal producers as a whole have
increased their productivity and lowered their costs. Cost reduction
has resulted from improved management of mining operations and
delivery, introduction of new technology (e.g., longwall mining),
investment in more productive equipment, consolidation to achieve
economies of scale, closure of high-cost mines, and takeover and
restructuring of high cost mines to operate them more economically. The
EIA has observed that ``the relationship between coal prices and
productivity gains is circular: Productivity gains allow coal prices to
be lowered and price declines induce actions by coal producers that
raise productivity and cut costs' (EIA, ``Challenges,'' Chapter 1, p.
I-12). The problem that small coal mines face is that they are less
able than large mines to implement such productivity enhancing
measures. As a result, small inefficient coal mine operators are being
squeezed by larger more efficient mine operators.
Rapidly increasing productivity, however, does not preclude the
coal industry as a whole from increasing its prices in the short run to
recoup regulatory compliance costs. These costs are small. Based on
West Virginia insurance rates, the increase in insurance rates would
translate into a one-time increase in labor costs of 1.2 percent a
year. By contrast, labor productivity (tons per miner hour) increased
by an average of 6.9 percent each year from 1980 to 1996 (EIA,
``Challenges,'' Chapter 1, p. I-12). This annual productivity
increase--five or six times as large as the estimated impact of the
regulation--would allow the coal industry to pass through costs of the
rule without raising prices at all. Only a small one-time diminution in
the reduction of the price of coal would be needed.
It is true that small mines cannot increase prices beyond those of
larger counterparts and stay competitive. The analysis of relative
impacts indicates that very small, underground coal mines may be able
to pass through one quarter to one half of their costs of the rule to
consumers under the cover of larger mines passing all of their costs of
the rule through to consumers. The Department's preliminary economic
analysis treated pass-through of costs of the rule essentially as a
factor that could mitigate to some extent--not prevent--
[[Page 80039]]
impacts on profits. See Rulemaking Record, Exhibit 80, pp. 52-56. For
the reasons outlined above, the Department continues to believe that
this is the case. Because of the difficulty of quantifying these
effects, however, the quantitative analysis will continue to assume
zero cost pass-through. The uncertainty as to the extent to which costs
can be passed through does not mean that the Department is unable to
estimate impacts, however. Rather, the assumptions that the analysis
made to deal with the uncertainty result in estimates of impacts on
profits and closures that are known to be biased upward--as is
appropriate for a conservative analysis of impacts.
The market for anthracite coal is significantly more sheltered from
price competition than the market for bituminous coal. Since 1996, a
majority of anthracite production has been accounted for by culm bank
operations. These operations salvage previously-mined anthracite from
old mine tailings on the surface. The market for these operations (and
potentially for other anthracite mines) is nearby power plants. Most of
these plants are cogeneration plants, which produce heat or steam for
industrial use as their principal output, and then generate electric
power as a byproduct. Some, however, are small power plants built
solely to use anthracite from culm banks. The Public Utility Regulatory
Policies Act of 1978, Pub. L. 95-617, 92 Stat. 3117(1978), requires
electric utilities to purchase electric energy from cogeneration
facilities and other qualifying small power production facilities. The
Act goes on to stipulate that the price at which utilities purchase
electric energy may not exceed ``the incremental cost to the electric
utility of alternative electric energy.'' 16 U.S.C. 824a-3(b). Since
most of the electricity generated with the anthracite is a byproduct of
steam and heat produced for other purposes and the capacity is already
installed, the incremental cost of power to utilities is virtually
certain to provide sufficient revenue to make these anthracite
operations economically viable, despite the costs of the rule. If
anything, anthracite from culm banks is likely to become more
competitive as the prices of other fuels used to generate electricity
rise. Indeed, anthracite culm banks are the only part of the coal
mining industry in which both the number of very small operations and
the number of employees have expanded substantially over the last 10 to
15 years.
The broader market for anthracite includes metallurgical uses and
other specialty markets. This provides anthracite with a degree of
product differentiation that bituminous coal does not have. The
economic forces in the anthracite mining industry are significantly
different from those in the bituminous coal mining industry. In
anthracite, there are no large mines, no high-productivity mines, and
generally not the geological conditions that are favorable to large-
scale equipment or techniques that would allow increases in
productivity. Instead of a steady increase in output, anthracite
production (exclusive of culm banks) fell by 19 percent between 1986
and 1997. Together with the rise of anthracite salvage operations, this
decline appears to reflect exhaustion of anthracite deposits that can
be mined economically, rather than the sort of fierce competition
characterized by highly elastic demand.
One comment argues that the Department's initial regulatory
flexibility analysis did not properly analyze the effect of its rule on
coal mine construction and transportation contractors, as well as on
other small businesses performing services at mine sites. The
Department acknowledged that its rule would have an effect on entities
in the ``Coal Mining Services'' industry, and estimated that of 275
firms listed in data available from the Small Business Administration,
no more than 209 were small businesses within the SBA's definition
(less than $5 million in annual receipts). The Department recognized,
however, that this number might understate the number of coal mine
construction and coal transportation companies. 64 FR 55008 (Oct. 8,
1999).
The RFA does not require, however, that the Department determine
precisely the economic effect on small businesses where it is not
feasible to do so. Instead, it requires only that the initial
regulatory flexibility analysis ``describe the impact of the rule on
small entities.'' 5 U.S.C. 603(a). The Department's initial regulatory
flexibility analysis described the impact of its proposed regulations
based on an economic analysis. The economic analysis projected an
increase in the approval rate of black lung claims payable by
responsible operators and a temporary increase in the number of claims
filed. To the extent that coal mine contractors obtain insurance to
spread the risk of potential liability under the Act, the Department's
initial regulatory flexibility analysis of the resulting increase in
insurance premiums was also relevant to those entities. In the absence
of a more precise estimate of the number of entities involved, however,
and the manner in which those entities currently absorb the costs
imposed by the Black Lung Benefits Act, the Department's initial
regulatory flexibility analysis fulfilled the requirements of the RFA
by identifying a potential impact on the coal mine contracting
industry.
Thus, the Department does not believe the comments undermine the
validity of its initial regulatory flexibility analysis, or of the
economic analysis that the Department used in preparing it. Both
analyses describe the impact that the revised regulations are likely to
have on small coal mine operators, and both analyses acknowledge that
this impact may be sufficient to make the mining of coal uneconomical
for some. 64 FR 55008-09 (Oct. 8, 1999); Rulemaking Record, Exhibit 80,
pp. 44-46, 52. The Department's proposal, and its discussion of
possible alternatives intended to mitigate the impact of the proposal
on small businesses, were made with full knowledge of the projected
economic impact. Accordingly, although the Department has committed to
the revision of the Part 722 regulations, see discussion of
alternatives, below, and preamble to Part 722, the Department has not
altered its proposal in response to any of the comments it received in
response to the initial regulatory flexibility analysis.
Small Businesses to Which the Rule Will Apply
The revised regulations implementing the Black Lung Benefits Act
will apply, like the Act itself, to coal mine operators. See, e.g., 30
U.S.C. 932(b) (``each such operator shall be liable for and shall
secure the payment of benefits * * * ''). The term ``operator''
includes not only traditional coal mining companies, but also employers
who provide services to such companies, including coal mine
construction and coal transportation companies. 30 U.S.C. 802(d). In
the initial regulatory flexibility analysis published in its second
notice of proposed rulemaking, the Department observed that the
Regulatory Flexibility Act requires an administrative agency to use the
definition of a ``small business'' promulgated by the Small Business
Administration unless the agency, after consulting with the SBA's
Office of Advocacy and providing an opportunity for public comment,
establishes its own definition. 5 U.S.C. 601(3). (The Department's
regulations do not apply to any small organizations or small
governmental jurisdictions; accordingly, the Department's analysis is
limited to small businesses.) The Department therefore announced its
intention to use the SBA definition, which establishes
[[Page 80040]]
criteria for different industries, arranged by the Standard Industrial
Codes (SICs) used by the Bureau of the Census. SBA's regulations define
a small business in the coal mining industry (SIC Codes 1220, 1221,
1222, 1230, and 1231) as one with fewer than 500 employees. A small
business in the coal mining services industry (SIC Codes 1240 and 1241)
is one with less than $5 million in annual receipts. 64 FR 55007-08
(Oct. 8, 1999).
Based on 1995 data, the Department determined that of 2,822
establishments in the coal mining industry, 2,811 employed less than
500 people. Of those, 1,581 were surface bituminous mining companies,
1009 were underground bituminous mining companies, and 221 were
anthracite mining companies. The Department estimated that no more than
209 of the 275 firms in the coal mining services industry would be
considered small businesses. The Department observed, however, that its
estimate did not necessarily include all coal mine construction and
coal transportation companies, and that the precise number of such
businesses could not be estimated with precision. 64 FR 55007-08 (Oct.
8, 1999).
More recent data available from the Mine Safety and Health
Administration suggest that the composition of the coal industry has
not changed significantly. In 1997, 2,568 of 2,578 establishments in
the coal mining industry employed less than 500 people. Of these, 1,441
were surface bituminous mining companies, 913 were underground
bituminous mining companies, and 214 were anthracite mining companies.
Census figures available from the Small Business Administration do not
allow the Department to calculate how many of the 317 firms in the coal
mining services industry would be considered small businesses, because
those figures do not contain sufficient information on the revenues of
those firms.
Projected Reporting, Recordkeeping, and Other Compliance
Requirements of the Rule
In its initial regulatory flexibility analysis, the Department
observed that its proposed revisions would not impose any additional
reporting or recordkeeping requirements on small businesses. The
Department stated that the compliance requirements of the rule were
largely economic in impact. The Department projected its regulatory
revisions would increase the cost of commercial insurance (through
increased premiums) purchased by coal mine operators to secure their
benefits liability under the Act. The Department also projected an
increase in the potential exposure of operators who are authorized to
self-insure their liability under the Act. A summary of these
additional costs was published in the Department's initial regulatory
flexibility analysis. 64 FR 55008-09 (Oct. 8, 1999). In addition, the
Department observed that coal mine operators that did not purchase
insurance, either because they were self-insured, or because they were
not required to secure benefits, or because they had ignored the Act's
security requirement, would face additional burdens. These burdens
included responding more promptly to notice from the Department that a
claim had been filed by one of their former employees, and posting
security in the event that they were held liable for the payment of
benefits on an individual claim. Operators that had been authorized to
self-insure their liability under the Act would be required to maintain
security for claims filed against them, even after they ceased mining
coal. Finally, the Department observed that the regulatory revisions
enhanced its ability to enforce civil money penalties against operators
that failed to comply with the Act's security requirements. 64 FR
55008-09 (Oct. 8, 1999).
The regulatory revisions in the Department's final rule do not
significantly change the costs identified by the Department's initial
regulatory flexibility analysis. Specifically, only one of the changes
that the Department has adopted in this final rule in response to
public comments has cost implications. The Department has eliminated
the notice of initial finding, a document that the Department currently
uses to deny claims informally before the district director. Both the
first and second notices of proposed rulemaking proposed the continued
use of this document. Eliminating issuance of initial findings will
decrease operator costs in all cases by reducing the numbers of
responses that coal mine operators have to file with the Department.
Eliminating this document, however, will also require that coal mine
operators undertake the development of responsible operator evidence
(evidence showing that another entity that employed the miner should be
the responsible operator) in a number of additional cases. Under the
Department's second notice of proposed rulemaking, coal mine operators
would not have been required to develop responsible operator evidence
in cases in which the claimant failed to respond to the Department's
notice of initial finding denying their claims. Under the final rule, a
coal mine operator may not know whether the claimant is interested in
pursuing his claim (unless the claimant withdraws his application under
Sec. 725.306) until after that operator has developed its responsible
operator evidence.
The Department believes that the costs resulting from this revision
will have only a minor impact on its previous estimate of the costs of
the rule. As an initial matter, the Department estimates that this
revision will affect less than 10 percent of all responsible operator
cases. In FY 1999, a total of 5,724 cases were filed. The Department
estimates that just over 75 percent of these claims, or 4,293, were
claims involving potential responsible operator liability. Ten percent
of this number is 429. The Department's economic analysis assumed that
an additional 1,720 operator cases will be filed each year for two
years following issuance of the Department's final rules. Ten percent
of this number is 172. In each of the next two years, then, the
revision will cause the additional development of responsible operator
evidence in only 601 claims. Under the proposed rule in the
Department's second notice, however, operators would also have had to
develop such evidence in the 30 percent of such cases that proceed
beyond adjudication by the district director. Consequently, the
Department's final rule will require additional evidentiary development
in only the remaining 70 percent of cases, or 421 cases. The Department
has no way of accurately estimating the costs of developing such
evidence. However, a rough estimate can be made using information in
M&R's first analysis. M&R estimated that the total cost to operators in
defending claims that were resolved at the district director level was
approximately $3,000. Rulemaking Record, Exhibit 5-160, Appendix 5, p.
24. This figure included not only the development of responsible
operator evidence but, under the Department's first proposal (to which
M&R was responding), of all medical evidence as well. Although the cost
of developing medical evidence is typically much higher than the cost
of operator evidence, because it involves payments to expert witnesses,
the Department will assume that half of these defense costs represent
the cost of developing responsible operator evidence. Accordingly, the
total additional costs imposed by this revision are not likely to
exceed $631,050 (70 percent of 601 claims times $1,500) in each of the
first two years, and will drop to no more
[[Page 80041]]
than $450,450 (70 percent of 429 claims times $1,500) for each year
thereafter. In light of the point estimate of $57.56 million in annual
costs identified by the Department's economic analysis of the proposed
rule, these additional costs are not significant. In any event, these
additional costs will be at least partially offset by the savings
realized in all cases from the reduced number of required operator
responses. In addition, the Department's decision to permit the
district director to refer a case to the Office of Administrative Law
Judges with no more than one operator as a party to the claim will
result in additional savings to coal mine operators in some cases.
Description of Steps the Agency has Taken to Minimize the Impact on
Small Entities Consistent With the Stated Objectives of Applicable
Statutes; Discussion of Alternatives
The primary objective of the Black Lung Benefits Act is set forth
in Sec. 901 of the Act:
It is, therefore, the purpose of this subchapter to provide
benefits, in cooperation with the States, to coal miners who are
totally disabled due to pneumoconiosis and to the surviving
dependents of miners whose death was due to such disease; and to
ensure that in the future adequate benefits are provided to coal
miners and their dependents in the event of their death or total
disability due to pneumoconiosis.
30 U.S.C. 901. The statute also seeks to ensure, however, that
liability for a miner's benefits is borne by the entity most
responsible for the development of that miner's totally disabling
pneumoconiosis. Prior to 1978, claims that were not paid by individual
coal mine operators were paid by the federal government from general
revenues. In 1978, Congress created the Black Lung Disability Trust
Fund, financed by an excise tax on coal production, to assume the
payment of benefits in cases for which no individual operator bore
liability. Congress clearly indicated its preference that the Trust
Fund should be considered a payment source of last resort. In
discussing the successor operator provisions of the Black Lung Benefits
Reform Act of 1977, enacted in 1978, the Senate Committee on Human
Resources, whose bill contained the provisions ultimately included in
the Act, stated: ``It is further the intention of this section, with
respect to claims [in] which the miner worked on or after January 1,
1970, to ensure that individual coal mine operators rather than the
trust fund bear the liability for claims arising out of such operator's
mine, to the maximum extent feasible.'' S. Rep. 95-209, 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).
In its initial regulatory flexibility analysis, the Department
observed that these two principles severely constrained its ability to
select alternatives that the Department had identified as potentially
providing relief for small coal mine operators. The Department
discussed several alternatives, including adjusting a miner's
entitlement criteria according to the size of the operator that would
be considered the responsible operator under the Department's
regulations. A second alternative would have limited the liability of
certain employers. These employers might include those that met either
the SBA definition of a small business (over 90 percent of the
industry) or those employers with fewer than 20 employees, companies
that the Department's economic analysis had identified as most
vulnerable. In such cases, the Department considered imposing liability
on larger operators or on the Black Lung Disability Trust Fund. The
Department rejected both alternatives, however, as contrary to the
intent of Congress as expressed in the Black Lung Benefits Act. 64 FR
55009 (Oct. 8, 1999). The Department did provide relief to small mining
companies in its revised regulations governing the assessment of civil
money penalties for an operator's failure to secure the payment of
benefits, 20 CFR Part 726, Subpart D. These regulations specifically
assess a smaller base penalty amount on a smaller employer, i.e., one
with few miner-employees. Finally, the Department invited comment from
interested parties as to other alternatives that would reduce the
financial impact of the rules on the small business community.
A number of comments suggest that by inviting comments as to other
alternatives, the Department abdicated its responsibilities under the
Regulatory Flexibility Act. The Department does not agree. Nothing in
the RFA requires an agency to forego rulemaking because the regulated
community is unhappy with the alternatives that the agency considered
in its initial regulatory flexibility analysis, or because that
community has proposed additional alternatives. On the contrary, the
RFA encourages agencies to notify small businesses of proposed
rulemaking activities precisely so that those small businesses may
participate in the identification of additional alternatives that might
reduce the impact of the rule. See 5 U.S.C. 609(a).
The National Mining Association (NMA), endorsed by a number of
other commenters, has identified six alternatives that it believes the
Department should have considered: (1) establish a fund to insure coal
mine operators for federal black lung claims on a first dollar basis
under the authority granted the Department by 30 U.S.C. 943; (2)
establish a fund to reinsure coal mine operators for federal black lung
claims on a specific or aggregate of loss basis, also under the
authority granted the Department by 30 U.S.C. 943; (3) name only the
most likely responsible operator; (4) establish criteria to determine
when a state black lung program is sufficient to end the federal
program in that state; (5) allow settlement of federal black lung
claims; and (6) establish cost-containment mechanisms for health care
providers. Rulemaking Record, Exhibit 89-37, p. 31. The M&R analysis
similarly suggests the first four alternatives, although it would apply
the third alternative (naming the most likely operator) only where that
operator is a small coal mine operator. In addition, the M&R analysis
suggests that the Department establish a formal, ongoing review of
state workers' compensation programs to determine whether they are
sufficient to permit the Secretary to declare the federal program
inapplicable to miners in particular states. Rulemaking Record, Exhibit
89-37, Appendix A, M&R at pp. 17-18. The Department will consider these
alternatives in order.
1. Exercising the authority of 30 U.S.C. 943 (NMA alternatives 1
and 2, M&R alternatives 1 and 2). Section 933 of the Black Lung
Benefits Act, 30 U.S.C. 943, authorizes the Secretary of Labor to
establish a Black Lung Compensation Insurance Fund to allow coal mine
operators to purchase insurance to secure their obligations under the
Act. The Fund may be used to insure coal mine operators directly, 30
U.S.C. 943(c)(1), or to enter into reinsurance agreements with one or
more insurers or pools of insurers, 30 U.S.C. 943(c)(2). The Act
provides an important limitation on the Secretary's authority, however:
``The Secretary may exercise his or her authority under this section
only if, and to the extent that, insurance coverage is not otherwise
available, at reasonable cost, to operators of coal mines.'' 30 U.S.C.
943(b) (emphasis added). The record contains no evidence that would
allow the Secretary to determine, under subsection (b), that insurance
coverage is not currently available at reasonable cost to operators of
coal mines.
[[Page 80042]]
Consequently, the statute does not permit the ``alternative'' suggested
by the commenters. Projections provided by the mining and insurance
industries, however, predict significantly higher percentage increases
in the cost of commercial black lung insurance if these rules become
final. The Department disagrees with these projections and has
explained its reasoning above. The Department also recognizes its
obligation, however, to closely monitor insurance rates, especially any
increase in rates that may result from the final promulgation of the
Department's regulations. To the extent that rates do increase, the
Department will have to determine whether those increases have resulted
in insurance becoming unavailable at a reasonable cost to coal mine
operators, the statutory prerequisite for the Secretary's authority
under 30 U.S.C. 943(b).
2. Naming only the most likely responsible operator (NMA
Alternative 3, M&R alternative 3). The NMA suggests that the Department
name only the most likely responsible operator, which the NMA asserts
was the Department's practice under its former regulations. The M&R
analysis states that the Department could form an insurance fund to
reimburse the Black Lung Disability Trust Fund for claims in which the
most likely responsible operator is ultimately determined not to be
liable for the payment of benefits, thereby imposing an unwarranted
liability on the Fund. The Department does not agree that it formerly
named only the most likely responsible operator. In its discussion of
Sec. 725.408, the Department observed that, where necessary, it made
more than one operator a party to a claim under the prior regulations.
See preamble to Sec. 725.408, paragraph (f). In addition, M&R's
solution to the problem of imposing additional risk on the Trust Fund--
that the Department use an ``insurance fund'' to reimburse the Trust
Fund for such claims--is flawed on two counts: 1) for the reasons
described above, the Department cannot establish an insurance fund
absent a finding that insurance is not available at reasonable cost;
and 2) reimbursement of the Trust Fund for such claims is not among the
statutorily-prescribed uses for monies in an insurance fund, see 30
U.S.C. 943(g)(1)(A)-(C).
The Department notes, however, the continued objection of a number
of commenters to the Department's proposal that operators be forced to
participate in a joint defense of the claimant's eligibility, see
preamble to Sec. 725.414. The Department has therefore reconsidered its
administrative processing of cases in which the identity of the
responsible operator is in doubt. As revised, the regulations permit
the district director to refer a case to the Office of Administrative
Law Judges with no more than one operator included as a party to the
claim. See preamble to Sec. 725.418. The Department recognizes that
this approach imposes additional risk on the Black Lung Disability
Trust Fund. See preamble to Sec. 725.414. The Department has concluded
that this risk is acceptable, however, because all the potentially
liable operators will be required to submit evidence relevant to the
issue of operator liability while the case is pending before the
district director. The district director will thus have available all
of the relevant evidence when he finally designates the operator
responsible for payment of a claim. That one operator will remain a
party in further proceedings.
The Department does not believe that this alternative is a truly
significant one--i.e., one which will provide the affected small
business community with significant relief from the costs of the
Department's regulatory revisions. First, it will apply in only a small
percentage of cases. The Department estimates that less than 10 percent
of responsible operator cases involve substantial questions as to the
identity of the operator that should be liable for the payment of
benefits. In addition, only 33 percent of all cases filed are referred
to the Office of Administrative Law Judges. Accordingly, the
Department's revision will likely affect only 3 percent of responsible
operator cases. Second, the additional cost that would have been
required by continued operator participation is relatively small. It is
true that operators will no longer have to defend against an effort by
the designated responsible operator to shift liability to them beyond
the district director level. Instead, once a case is referred to the
Office of Administrative Law Judges, if the designated responsible
operator shows that it does not meet the criteria for a responsible
operator, Sec. 725.495, liability will shift to the Trust Fund. The
costs associated with an operator's continued participation in a claim
before the Office of Administrative Law Judges would have been small,
however, because the operator would already have had to develop and
submit all evidence relevant to the liability issue while the case was
pending before the district director. The final regulations do not
alter that requirement. A second set of costs eliminated by the
Department's revision are those associated with monitoring the
designated responsible operator's litigation of the claimant's
eligibility while the case is pending before the Office of
Administrative Law Judges. The Department's proposal would have
permitted a potentially liable operator to submit its own documentary
medical evidence upon establishing that the designated responsible
operator had not undertaken a full development of the evidence. The
Department does not believe that this situation would have arisen
often, and thus believes that the overall costs associated with
exercising this right were not significant. The costs relevant to both
of these issues were thus largely the costs associated with hiring an
attorney to monitor the litigation and, as appropriate, attend the
hearing or file a brief to argue on the operator's behalf. In preparing
its economic analysis, the Department used the industry's estimate of
$6,000 as the current average cost for defending a claim that proceeds
beyond the district director level. See preamble to Sec. 725.407. This
cost includes not only attorneys' fees, but also the development of
evidence relevant to operator liability and claimant eligibility. The
Department does not believe that the fees charged by an attorney to
monitor the litigation and present argument represent a large component
of the estimated costs. Accordingly, in light of both the small number
of affected cases and the minimal expenses involved, the Department
does not consider that its adoption of this alternative will result in
significant savings to small coal mine operators.
3. Establish criteria to determine when a state's workers'
compensation program provides ``adequate coverage'' for totally
disabling pneumoconiosis (NMA alternative 4, M&R alternative 4).
Section 421 of the Black Lung Benefits Act, 30 U.S.C. 931, requires the
Secretary to publish in the Federal Register a list of all states whose
workers' compensation laws provide ``adequate coverage'' for
occupational pneumoconiosis. The Secretary's certification that a state
provides adequate coverage prevents any claim for benefits arising in
that state from being adjudicated under the Black Lung Benefits Act.
The Act provides certain criteria states must meet in order to gain
Secretarial certification, 30 U.S.C. 921(b)(2)(A)--(E). It also
provides that the Secretary may, by regulation, establish additional
criteria. 30 U.S.C. 921(b)(2)(F). In its first notice of proposed
rulemaking, the Department observed that the applicable regulations, 20
CFR Part 722 (1999), had not been
[[Page 80043]]
amended since 1973, and that, in light of statutory amendments in 1978
and 1981, those regulations were obsolete. 62 FR 3347 (Jan. 22, 1997).
Accordingly, the Department proposed to delete the specific criteria
contained in Part 722. The Department proposed replacing them with a
general statement that it would review any state's application for
certification in light of the provisions of the then-current Act, and
the principle that the state law would be certified only if it
guaranteed at least the same compensation, to the same individuals, as
was provided by the Act.
The NMA and M&R urge the Department to develop specific criteria
that would allow a state to determine what steps it needs to take to
allow the Secretary to certify its law as providing adequate coverage
for occupational pneumoconiosis. M&R states that ``[n]o single
alternative would be more helpful to small coal operations than to be
required to provide compensation under only one mechanism.'' M&R at p.
18. This suggestion would require the Department to update the criteria
previously set forth in Part 722. Although no state has sought the
Secretary's certification since 1973, the Department accepts the
commenters' suggestion that a revision of the Part 722 criteria will
encourage states to seek the certification permitted by the Act.
Publication of a current set of criteria, however, will require
considerable study and additional drafting, and would needlessly delay
final promulgation of the remaining regulations in the Department's
proposal. Following completion of that work, the Department will issue
a new notice of proposed rulemaking in order to ensure that interested
parties have an opportunity to comment upon possible Secretarial
certification criteria. The Department believes that, in the interim,
the revised Part 722 will accommodate any state seeking certification.
M&R also suggests that the Department establish a formal and
ongoing Departmental review of state laws to determine whether they
provide adequate coverage. The Department does not believe that it
would be productive to engage in such a review. States that revise
their workers' compensation laws to meet the Department's criteria will
do so in order to preempt the application of the Black Lung Benefits
Act. Those states will have a clear incentive to submit an application
to the Department for the appropriate certification. Relying on states
to initiate the certification process thus makes the most efficient use
of government resources at both the state and federal levels.
4. Permit the settlement of black lung claims (NMA Alternative 5).
The NMA suggests, without further explanation, that permitting the
settlement of black lung claims will reduce the impact of the
Department's regulatory revisions on small coal mine operators. The
Department believes that the Black Lung Benefits Act does not allow the
settlement of claims, and that permitting the settlement of claims
would be contrary to the objectives of the Act in any event.
The Black Lung Benefits Act incorporates two provisions of the
Longshore and Harbor Workers' Compensation Act relevant to settlements,
and specifically excludes a third provision. Section 15(b) of the
LHWCA, 33 U.S.C. 915(b), renders invalid any ``agreement by an employee
to waive his right to compensation under this chapter.'' Section 16, 33
U.S.C. 916, invalidates any ``release * * * of compensation or benefits
due or payable under this chapter, except as provided in this
chapter.'' Together, these provisions, which have been part of the
LHWCA since its 1927 enactment, have been interpreted to ``prevent[]
any private settlement of a claim between the employer and the
employee.'' American Mutual Liability Ins. Co. of Boston v. Lowe, 85
F.2d 625, 628 (3d Cir. 1936); see also Lumber Mutual Casualty Ins. Co.
of New York v. Locke, 60 F.2d 35, 37 (2d Cir. 1932).
In 1938, Congress amended section 8 of the Longshore Act to
specifically provide a settlement procedure in cases in which the
injured employee sought compensation for permanent or temporary partial
disability. See Act of June 25, 1938, c. 685, Sec. 5, 52 Stat. 1166.
The federal courts have long interpreted the section 8 procedure as the
only means by which an injured employee could validly settle a claim
for compensation. See, e.g., Norfolk Shipbuilding & Drydock Corp. v.
Nance, 858 F.2d 182, 185-6 (4th Cir. 1988), cert. denied, 492 U.S. 911
(1989); Oceanic Butler v. Nordahl, 842 F.2d 773, 776 n. 3 (5th Cir.
1988). In incorporating certain procedures of the LHWCA into the Black
Lung Benefits Act, however, Congress specifically excluded LHWCA
Sec. 8. See list of excluded provisions in 30 U.S.C. 932(a). Moreover,
although Congress authorized the Secretary to vary the terms of
incorporated LHWCA provisions in order to administer the Black Lung
Benefits Act, it forbade the Department from promulgating provisions
that were ``inconsistent with those specifically excluded * * *.'' By
this language, Congress expressed its intention that the Secretary not
use the broad powers granted her by the Black Lung Benefits Act to
provide by regulation the substance of provisions that Congress had
explicitly declined to incorporate. See Senate Conference Committee
Report, reprinted in Committee Print, 94th Cong., 1st Sess.,
Legislative History of the Federal Coal Mine Health and Safety Act of
1969 at 1624 (``The Secretary of Labor is also authorized to publish
additional provisions by regulation, together with all or part of the
applicable provisions of said Act other than those specifically
excluded * * *.''), quoted in Director, OWCP v. National Mines Corp.,
554 F.2d 1267, 1274 n. 31 (4th Cir. 1977).
Congress's decision to exclude the settlement provisions of LHWCA
section 8 when it incorporated other LHWCA provisions makes sense. When
Congress enacted the Black Lung Benefits Act in 1969, and when it
amended the list of excluded sections in 1972, section 8 permitted only
the settlement of claims for partial disability. Because benefits under
the Black Lung Benefits Act are available only to miners who are
totally disabled due to pneumoconiosis, and to the survivors of miners
who die from that disease, there was no reason to incorporate section
8. Congress amended section 8 in 1972 to allow settlement of claims for
total disability, and again in 1984 to permit the settlement of
survivors' claims. Pub. L. 92-576, Sec. 20, 86 Stat. 1264 (1972); Pub.
L. 98-426, Sec. 8(f), 98 Stat. 1646 (1984). Congress did not revisit
its exclusion of Longshore Act provisions from the Black Lung Benefits
Act on either occasion, even though Congress specifically amended the
relevant statutory section in the Black Lung Benefits Act, 30 U.S.C.
932(a), in the course of amending the LHWCA in 1984. See Pub. L. 98-
426, Sec. 28(h)(i), 98 Stat. 1655 (1984).
The Department thus believes that Congress has expressed its intent
not to permit the settlement of claims for black lung benefits.
Moreover, the Department believes that this decision is supported by
sound policy considerations. The Black Lung Benefits Act is intended to
provide benefits (37 and 1/2 percent of the monthly pay for a federal
employee in grade GS-2, step 1, augmented for additional dependents) to
miners who are totally disabled due to pneumoconiosis and to the
survivors of miners who die due to the disease. 30 U.S.C. 922(a).
``Providing a minimum level of income for eligible miners disabled by
black lung is at the heart of the statute.'' Harman Mining Co. v.
Stewart, 826 F.2d 1388, 1390 (4th Cir. 1987). Interpreting the Act so
as to
[[Page 80044]]
permit a totally disabled miner to accept a settlement that reduces
that minimum level of benefits would thus contravene one of the basic
objectives of the Act. Former coal miners tend to apply for black lung
benefits shortly after they leave employment in the coal industry or
when they retire, usually at the same time they file an application for
Social Security benefits, rather than in response to a specific
diagnosis or injury. The population of claimants thus tends to be
significantly different than is the case with the population of claims
under other workers' compensation programs, including the LHWCA.
Because of the latent, progressive nature of pneumoconiosis, see
preamble to Sec. 725.309, a substantial number of applicants whose
initial claims are denied are ultimately determined to be eligible for
black lung benefits. In its second notice of proposed rulemaking, the
Department observed that the approval rate for subsequent claims filed
by miners whose initial claims were denied (10.56 percent) is higher
than the approval rate for first-time applicants (7.47 percent). 64 FR
54984 (Oct. 8, 1999). These statistics demonstrate that first-time
applicants may not fully appreciate the extent to which they may be
affected by pneumoconiosis later in life. As a result, the Department
believes that it would be inappropriate to encourage or permit such
applicants to bargain away the minimum level of benefits guaranteed
them by Congress. Accordingly, the Department does not accept the
suggestion that permitting settlement, even if it were not forbidden by
the Act, represents an alternative to the Department's rule that is
consistent with the objectives of the Black Lung Benefits Act.
5. Establish cost-containment mechanisms for health care providers
(NMA alternative 6).
Through the incorporation of LHWCA Sec. 7, the Black Lung Benefits
Act requires responsible coal mine operators and the Black Lung
Disability Trust Fund to provide medical benefits to miners who meet
the Act's eligibility criteria. 33 U.S.C. 907, as incorporated into the
Black Lung Benefits Act by 30 U.S.C. 932(a). The Department's
regulations require that a miner be provided ``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 require.'' 20 CFR 725.701(b) (1999). In Fiscal Year 1998,
the Trust Fund paid approximately $82.1 million for the medical
treatment of eligible miners, processing approximately 620,000 bills.
OWCP Annual Report to Congress, FY 1998, p. 18.
The Department has already adopted a variety of cost-containment
measures to reduce medical treatment costs paid by the Trust Fund. The
Department's guidelines for the payment of medication expenses were
derived from the system used by the United Mine Workers of America
Health and Retirement Funds in light of the similar populations served
by the UMWA Funds and the Trust Fund. The Department updates its list
of allowable charges for various drugs on a monthly basis and for
treatment procedures on a periodic basis to ensure that it does not
reimburse miners and their medical providers an amount above what is
usual and customary for the beneficiary population. The Medical
Director of the Department's Office of Workers' Compensation Programs
reviews medications that have not previously been approved for
inclusion on the Department's list.
The Department also carefully screens inpatient service bills for
both an acceptable diagnosis and an ``appropriate'' treatment based
upon the diagnosis and procedure codes present on the Universal Billing
Form. These diagnoses and treatments are compared to a set of
algorithms that take into account whether the diagnoses are related to
pneumoconiosis, the severity of covered and non-covered conditions, and
the character of the procedures. The program then makes a determination
as to whether a bill should be paid in full, paid in part, denied in
full, or made subject to review by the Department's staff. Bills that
are considered payable are subject to a series of edits to determine if
specific types of services should be paid, denied, or reviewed before
reimbursement. For example, the Department will deny a bill for a
private room during a hospitalization in the absence of adequate
justification and pay only the cost of a non-private room.
The cost-containment measures adopted by the Department have
reduced the Trust Fund's expenditures for medical treatment. Operators
and their insurers, organizations with considerable experience in cost-
containment, are similarly free to adopt measures that ensure that they
pay no more than the usual and customary amounts for necessary
services. Under the Secretary's regulations, eligible miners present
bills for medical services directly to the responsible operator liable
for the payment of their benefits, its insurer, or its claims servicing
agent. 20 CFR 725.704(a)(2) (1999). Any dispute between the miner and
the operator over payment of the bill is subject to informal resolution
by the district director. If that resolution is unsuccessful, either
the miner or the operator may obtain an expedited hearing before the
Office of Administrative Law Judges. 20 CFR 725.707 (a), (b) (1999).
Similarly, an operator may request a hearing with respect to any bill
which was paid from the Black Lung Disability Trust Fund while the
operator was contesting the miner's eligibility for benefits. ``Though
framed as contests between the particular Operator and the Fund over
reimbursement, these determinations provide the means by which an
Operator may challenge the validity of all or part of the miner's
initial claim, including each medical expense, even though it has
already been paid by the Fund.'' BethEnergy Mines, Inc. v. Director,
OWCP, 32 F.3d 843, 847 (3d Cir. 1994). Thus, the statute and its
implementing regulations afford an operator ample opportunity to
challenge the reasonableness of any amount that a claimant seeks as
payment for medical services. Although the Department will continue to
refine its cost-containment procedures, it does not believe that these
procedures represent an ``alternative'' to its rulemaking activities.
Rather, cost-containment must take place simultaneously with any
revision of the Department's regulations to ensure that the revisions
do not produce any unreasonable changes in health care expenditures.
In summary, the Department does not believe that any of the
alternatives suggested by the NMA and M&R offer relief to small
business that is consistent with the stated objectives of the Black
Lung Benefits Act. Although the Department does intend to revise the
Part 722 criteria in light of the commenters' suggestion, the failure
of any state to seek certification of its laws over the last quarter
century indicates that this effort will not result in any quick relief
to the small business community from the economic impact of the
Department's regulations. With the exception of graduated civil money
penalties, the requirements of the Black Lung Benefits Act simply do
not permit the Department to adjudicate the issues of claimant
eligibility and operator liability differently depending on the size of
the coal mine operator that may be liable for the payment of those
benefits. Because the Department believes that the ``no action''
alternative, discussed in detail above, would also be inappropriate,
the Department has published a final rule implementing its proposed
revisions.
[[Page 80045]]
Conclusion
The Department's final rule revising the regulations implementing
the Black Lung Benefits Act will result in the increase of premiums
paid by the coal mining industry to insure their obligations under the
Act. The economic analysis prepared in connection with the Department's
initial regulatory flexibility analysis demonstrated that this premium
increase would result in additional annual costs to the industry with a
point estimate of $57.56 million. The Department's revised rule will
not result in any significantly higher costs. In light of the need for
the revised regulations identified above, the Department believes that
it is appropriate to finalize the rule.
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 first day of December, 2000.
Bernard E. Anderson,
Assistant Secretary for Employment Standards.
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), 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.
Secs. 718.401-718.404 [Removed]
2. Part 718 is amended by removing subpart E (Secs. 718.401-
718.404), 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.
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
[[Page 80046]]
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 January 19, 2001 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 January 19, 2001. 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.
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.
(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. This
document is available from the Division of Coal Mine Workers'
Compensation in the U.S. Department of Labor, Washington, D.C.,
telephone (202) 693-0046, and from the National Institute for
Occupational Safety and Health (NIOSH), located in Cincinnati, Ohio,
telephone (513) 841-4428) and Morgantown, West Virginia, telephone
(304) 285-5749. A chest X-ray classified as Category Z under the ILO
Classification (1958) or Short Form (1968) shall be reclassified as
Category 0 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 0, 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) Except as provided in this paragraph, 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 paragraphs (a) through (d), such
X-ray may form the basis for a finding of the presence or absence of
pneumoconiosis 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 developed 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
[[Page 80047]]
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) Except as provided in this paragraph, 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, where no pulmonary function tests are in
substantial compliance with paragraphs (a) and (b) and Appendix B,
noncomplying tests may form the basis for a finding if, in the opinion
of the adjudication officer, the 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), 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, where no report is in
substantial compliance with paragraphs (a) and (b), a report prepared
by a physician who is unavailable may nevertheless form the basis for a
finding if, in the opinion of the adjudication officer, it is
accompanied by sufficient indicia of reliability in light of all
relevant evidence.
(d) Treating physician. 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
must give consideration to the relationship between the miner and any
treating physician whose report is admitted into the record.
Specifically, the adjudication officer shall take into consideration
the following factors in weighing the opinion of the miner's 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. In
appropriate cases, the relationship between the miner and his treating
physician may constitute substantial evidence in support of the
adjudication officer's decision to give that physician's opinion
controlling weight, provided that the weight 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 PC02, P02, 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. (e) In
the case of a deceased miner, where no blood gas tests are in
substantial compliance with
[[Page 80048]]
paragraphs (a), (b), and (c), noncomplying tests may form the basis for
a finding if, in the opinion of the adjudication officer, the only
available tests demonstrate technically valid results. This provision
shall not excuse compliance with the requirements in paragraph (d) for
any blood gas study administered during a hospitalization which ends in
the miner's 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 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
[[Page 80049]]
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 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 a material adverse effect on the miner's respiratory or
pulmonary condition; or
(ii) Materially 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
[[Page 80050]]
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
(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
[[Page 80051]]
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 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
[[Page 80052]]
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 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 H20/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
FEVl 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 than make a
maximum inspiration from the
[[Page 80053]]
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 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. As individuals with obstructive
disease or rapid decline in lung function will be less likely to
achieve this degree of reproducibility, tests not meeting this
criterion may still be submitted for consideration in support of a
claim for black lung benefits. Failure to meet this standard should
be clearly noted in the test report by the physician conducting or
reviewing the test.
(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 MVVs 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 (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), (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(a), (c) of this subchapter, 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 revised as follows:
[[Page 80054]]
PART 722--CRITERIA FOR DETERMINING WHETHER STATE WORKERS'
COMPENSATION LAWS PROVIDE ADEQUATE COVERAGE FOR PNEUMOCONIOSIS AND
LISTING OF APPROVED STATE LAWS
Sec.
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 relevant 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.
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.
------------------------------------------------------------------------
Period
State commencing
------------------------------------------------------------------------
None........................................................ ..........
------------------------------------------------------------------------
4. Part 725 is 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.
[[Page 80055]]
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 Submission of additional evidence.
725.411 Initial adjudication in Trust Fund cases.
725.412 Operator's response.
725.413 [Reserved].
725.414 Development of evidence.
725.415 Action by the district director after development of
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.
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 fund.
725.497 Procedures in special claims transferred to the 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.
Benefit Rates
725.520 Computation of benefits.
725.521 Commutation of payments; lump sum awards.
725.522 Payments prior to final adjudication.
Special Provisions for Operator Payments
725.530 Operator payments; generally.
725.531 Receipt for payment.
725.532 Suspension, reduction, or termination of payments.
Increases and Reductions of Benefits
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.
[[Page 80056]]
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 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
[[Page 80057]]
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, 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 Part A 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, therefore, 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 each incorporation is appropriate. Finally, Section
422(g), contained in part C of the Act, incorporates 42 U.S.C. 403(b)-
(l).
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 Janaury 19, 2001. This part applies to all claims filed,
and all benefits payments made, after January 19, 2001. With the
exception of the following sections, this part shall also apply to the
adjudication of claims that were pending on January 19, 2001:
Secs. 725.309, 725.310, 725.351, 725.360, 725.367, 725.406, 725.407,
725.408, 725.409, 725.410, 725.411, 725.412, 725.414, 725.415, 725.416,
725.417, 725.418, 725.421(b), 725.423, 725.454, 725.456, 725.457,
725.458, 725.459, 725.465, 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, 1999, apply to the adjudications
of claims that were pending on January 19, 2001. For purposes of
construing the provisions of this section, a claim shall be considered
pending on January 19, 2001 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.
[[Page 80058]]
(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 (formerly 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,
1999.
(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 Definition 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 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
[[Page 80059]]
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.
(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 is
substituted for the term Deputy Commissioner wherever that term appears
in the regulations. This substitution 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 mine dust as a result of such employment (see Sec. 725.202). For
purposes of this definition, the term does not include coke oven
workers.
(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.
(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 totaling
one year, during which the miner worked in or around a coal mine or
mines for at least 125 ``working days.'' A ``working day'' means any
day or part of a day for which a miner received pay for work as a
miner, but shall not include any day for which the miner received pay
while on an approved absence, such as vacation or sick leave. In
determining whether a miner worked for one year, any day for which the
miner received pay while on an approved absence, such as vacation or
sick leave, may be counted as part of the calendar year and as partial
periods totaling one year.
(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 totaling 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 totaling 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 or partial periods totaling a 365-day period amounting to
one 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
[[Page 80060]]
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, 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 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
[[Page 80061]]
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),
(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, and shall submit medical
reports and other relevant evidence the Office deems necessary, 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 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
[[Page 80062]]
(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--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 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 Conditions 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:
[[Page 80063]]
(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 part 718 on a
claim filed prior to June 30, 1982.
(b) If more than one spouse meets the conditions of entitlement
prescribed in paragraph (a), 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 intestate personal property; or
(d) Such individual went through a marriage ceremony with the
miner, resulting in a purported marriage between them 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; or
(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.
(2) For purposes of paragraph (g)(1)(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 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
[[Page 80064]]
(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.
(d) A child whose entitlement to benefits has been terminated
pursuant to Sec. 725.219(b)(2) 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. 725.218. The individual shall not be required
to reestablish the miner's entitlement to benefits (Sec. 725.218(a)(1))
or the miner's death due to pneumoconiosis (Sec. 725.212(a)(2)).
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 (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
[[Page 80065]]
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 part 718 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 in
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 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
[[Page 80066]]
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.
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.
[[Page 80067]]
(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 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.
[[Page 80068]]
(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 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
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