(a)(1) The operator responsible for the payment of benefits in a
claim adjudicated under this part (the ``responsible operator'') shall
be the potentially liable operator, as determined in accordance with
Sec. 725.494, that most recently employed the miner.
(2) If more than one potentially liable operator may be deemed to
have employed the miner most recently, then the liability for any
benefits payable as a result of such employment shall be assigned as
follows:
(i) First, to the potentially liable operator that directed,
controlled, or supervised the miner;
(ii) Second, to any potentially liable operator that may be
considered a successor operator with respect to miners employed by the
operator identified in paragraph (a)(2)(i) of this section; and
(iii) Third, to any other potentially liable operator which may be
deemed to have been the miner's most recent employer pursuant to
Sec. 725.493.
(3) If the operator that most recently employed the miner may not
be considered a potentially liable operator, as determined in
accordance with Sec. 725.494, the responsible operator shall be the
potentially liable operator that next most recently employed the miner.
Any potentially liable operator that employed the miner for at least
one day after December 31, 1969 may be deemed the responsible operator
if no more recent employer may be considered a potentially liable
operator.
(4) If the miner's most recent employment by an operator ended
while the operator was authorized to self-insure its liability under
part 726 of this title, and that operator no longer possesses
sufficient assets to secure the payment of benefits, the provisions of
paragraph (a)(3) shall be inapplicable with respect to any operator
that employed the miner only before he was employed by such self-
insured operator. If no operator that employed the miner after his
employment with the self-insured operator meets the conditions of
Sec. 725.494, the claim of the miner or his survivor shall be the
responsibility of the Black Lung Disability Trust Fund.
(b) Except as provided in this section and Sec. 725.408(a)(3), with
respect to the adjudication of the identity of a responsible operator,
the Director shall bear the burden of proving that the responsible
operator initially found liable for the payment of benefits pursuant to
Sec. 725.410 (the ``designated responsible operator'') is a potentially
liable operator. It shall be presumed, in the absence of evidence to
the contrary, that the designated responsible operator is capable of
assuming liability for the payment of benefits in accordance with
Sec. 725.494(e).
(c) The designated responsible operator shall bear the burden of
proving either:
(1) That it does not possess sufficient assets to secure the
payment of benefits in accordance with Sec. 725.606; or
(2) That it is not the potentially liable operator that most
recently employed the miner. Such proof must include evidence that the
miner was employed as a miner after he or she stopped working for the
designated responsible operator and that the person by whom he or she
was employed is a potentially liable operator within the meaning of
Sec. 725.494. In order to establish that a more recent employer is a
potentially liable operator, the designated responsible operator must
demonstrate that the more recent employer possesses sufficient assets
to secure the payment of benefits in accordance with Sec. 725.606. The
designated responsible operator may satisfy its burden by presenting
evidence that the owner, if the more recent employer is a sole
proprietorship; the partners, if the more recent employer is a
partnership; or the president, secretary, and treasurer, if the more
recent employer is a corporation that failed to secure the payment of
benefits pursuant to part 726 of this subchapter, possess assets
sufficient to secure the payment of benefits, provided such assets may
be reached in a proceeding brought under subpart I of this part.
(d) In any case referred to the Office of Administrative Law Judges
pursuant to Sec. 725.421 in which the operator finally designated as
responsible pursuant to Sec. 725.418(d) is not the operator that most
recently employed the miner, the record shall contain a statement from
the district director explaining the reasons for such designation. If
the reasons include the most recent employer's failure to meet the
conditions of Sec. 725.494(e), the record shall also contain a
statement that the Office has searched the files it maintains pursuant
to part 726, and that the Office has no record of insurance coverage
for that employer, or of authorization to self-insure, that meets the
conditions of Sec. 725.494(e)(1) or (e)(2). Such a statement shall be
prima facie evidence that the most recent employer is not financially
capable of assuming its liability for a claim. In the absence of such a
statement, it shall be presumed that the most recent employer is
financially capable of assuming its liability for a claim.
