[Federal Register Volume 64, Number 195 (Friday, October 8, 1999)]
[Proposed Rules]
[Pages 54966-55072]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-24658]



[[Page 54965]]

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Part II





Department of Labor





_______________________________________________________________________



Employment Standards Administration



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20 CFR Part 718 et al.



Regulations Implementing the Federal Coal Mine Health and Safety Act of 
1969; Proposed Rule

  Federal Register / Vol. 64, No. 195 / Friday, October 8, 1999 / 
Proposed Rules  

[[Page 54966]]



DEPARTMENT OF LABOR

Employment Standards Administration

20 CFR Parts 718, 722, 725, 726, and 727

RIN 1215-AA99


Regulations Implementing the Federal Coal Mine Health and Safety 
Act of 1969, as Amended

AGENCY: Employment Standards Administration, Labor.

ACTION: Proposed rule.

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SUMMARY: On January 22, 1997, the Department issued a proposed rule to 
amend the regulations implementing the Black Lung Benefits Act. The 
Department initially allowed interested parties until March 24, 1997 to 
file comments, but extended that deadline twice. When the comment 
period finally closed on August 21, 1997, the Department had received 
almost 200 written submissions from coal miners, coal mine operators, 
insurers, physicians, and attorneys. In addition, the Department held 
two hearings, one on June 19, 1997 in Charleston, West Virginia, and 
another on July 22-23, 1997 in Washington, D.C. Over 50 people 
testified at the Department's hearings. In total, the Department heard 
from over 100 former coal miners and members of their families, over 50 
coal mine operators and insurance companies that provide black lung 
benefits insurance, eight physicians, eight attorneys representing both 
claimants and coal mine operators, nine legislators at the federal and 
state levels, and groups as diverse as the United Mine Workers of 
America, the National Black Lung Association, the National Mining 
Association, the American Insurance Association, and the American Bar 
Association.
    The Department has reviewed all of the comments and testimony, and 
has decided to issue a second proposal, revising a number of the most 
important regulations contained in the earlier proposal. In some cases, 
the Department has proposed additional changes to these regulations. In 
other cases, the Department has explained its decision not to alter its 
proposal based on the comments received to date. Finally, the 
Department has prepared an initial regulatory flexibility analysis. The 
Department's second proposal is intended to accomplish two purposes. 
First, it will provide notice to all interested parties of the proposed 
revisions, as well as of the initial regulatory flexibility analysis 
set forth in this document. Second, the re-proposal will allow small 
entities that may have been unaware of the Department's earlier 
proposal to submit comments on the entire proposed rule.

DATES: Comments must be submitted on or before December 7, 1999.

ADDRESSES: All comments concerning these proposed regulations should be 
addressed to James L. DeMarce, Director, Division of Coal Mine Workers' 
Compensation, Room C-3520, Frances Perkins Building, 200 Constitution 
Ave., NW., Washington, DC 20210.

FOR FURTHER INFORMATION CONTACT: James L. DeMarce, (202) 693-0046.

SUPPLEMENTARY INFORMATION:
    This notice reprints 20 CFR Parts 718, 722, 725, and 726 in their 
entirety for the convenience of interested parties. This notice thus 
necessarily includes proposed revisions contained in the Department's 
original notice of proposed rulemaking. 62 FR 3338 (Jan. 22, 1997). The 
Department intends this notice to supplement the original notice, 
however, and not to replace it. To the extent that previously proposed 
regulatory changes have not been altered by the revisions contained in 
this notice, the explanation of those changes contained in the 
Department's initial notice remains valid. Where the Department has 
proposed additional changes, those changes are explained below.

Summary of Noteworthy Proposed Regulations

Evidentiary Development

Documentary Medical Evidence
    The Department's initial proposal governing evidentiary development 
in black lung claims resulted in the greatest volume of public comment, 
from coal mine operators, their insurers, claims servicing 
organizations and miners. Many commenters were critical of the 
Department's proposal that all documentary medical evidence was to be 
submitted to the district director in the absence of extraordinary 
circumstances. Numerous commenters, expressing widely varying points of 
view, also addressed the proposed limitation on the amount of 
documentary medical evidence that each side could submit in a given 
claim.
    After carefully considering the many valid objections to the 
required submission of documentary medical evidence to the district 
director, the Department now proposes to retain the current process for 
submitting documentary medical evidence into the record. Under this 
process, parties may submit documentary medical evidence either to the 
district director or to an administrative law judge (ALJ) up to 20 days 
before an ALJ hearing, or even thereafter, if good cause is shown. This 
proposal does retain, however, the Department's original limitation on 
the amount of documentary medical evidence which may be submitted in 
each claim. To clarify its intent, the Department has defined 
differently the applicable evidentiary limitations. These limitations 
are now expressed in terms of the types of evidence most commonly used 
to establish or refute entitlement to benefits under Secs. 718.202 and 
718.204. Thus, rather than describing the evidentiary limitations in 
terms of two pulmonary evaluations or consultative reports, the revised 
Sec. 725.414 speaks in terms of two chest X-ray interpretations, the 
results of two pulmonary function tests, two arterial blood gas 
studies, and two medical reports.
    The revised Sec. 725.414 also would make explicit the amount of 
evidence which each side may submit in rebuttal of its opponent's case. 
A party may submit no more than one physician's interpretation of each 
chest X-ray, pulmonary function test, or arterial blood gas study 
submitted by its opponent. In addition, the Department proposes to 
permit a party to rehabilitate evidence that has been the subject of 
rebuttal. For example, where a party submits a physician's 
interpretation in rebuttal of a chest X-ray interpretation or objective 
test, the party that originally submitted the chest X-ray or test into 
evidence may introduce a contrary statement from the physician who 
originally interpreted it.
    This proposal would alter in one significant way the limitations on 
the amount of medical evidence admissible in each claim. In order to 
allow for a more careful consideration of the unique facts and 
circumstances of each case, and to provide an additional procedural 
safeguard, this proposal would permit an administrative law judge to 
admit medical evidence into the record in excess of the limits outlined 
in Sec. 725.414 upon a showing of good cause. The Department's prior 
proposal would have permitted the admission of such evidence only if a 
moving party could demonstrate extraordinary circumstances.
Complete Pulmonary Evaluation
    The Department also proposes a change in the manner in which it 
administers the complete pulmonary evaluation required by the Black 
Lung Benefits Act. Under the Department's original proposal, a miner 
could be examined either by a physician selected

[[Page 54967]]

by the Department or by a physician of his choosing. If the miner 
selected the physician, however, the report of that examination would 
have counted as one of the two pulmonary evaluations the miner was 
entitled to submit into evidence. The Department now proposes to allow 
the miner to choose the physician or facility to perform the complete 
pulmonary evaluation from a list of providers maintained by the 
Department. The authorized list of physicians and facilities in a given 
case would include all those in the state of the miner's residence and 
contiguous states. If, however, a miner chose a provider more than one 
hundred miles from his residence to administer the 413(b) evaluation, 
the designated responsible operator could choose to send the miner a 
comparable distance for its examination. The 413(b) examination results 
would not count against the miner's quota. Sec. 725.406.
    The Department believes that this proposal would benefit all 
parties to a claim. It would make possible the best quality respiratory 
and pulmonary evaluation and would insure each miner a thorough 
examination, performed in compliance with the applicable quality 
standards. Such a pulmonary evaluation would therefore give the 
Department a sound evidentiary basis upon which to make an initial 
finding, a finding which both the claimant and the operator may find 
credible. The Department intends to develop more rigorous standards for 
physicians and facilities that perform pulmonary evaluations and to 
reevaluate the fees it pays physicians to perform and explain the 
results of these examinations. The Department has discussed in the 
preamble to Sec. 725.406 several possible criteria that the Office 
might use in selecting appropriate physicians and facilities, and 
invites comment on these and other possible criteria.
    Developing medical evidence relevant to the claimant's respiratory 
and pulmonary condition, including the objective medical testing 
required by the Department's quality standards, may involve costs 
beyond the reach of some claimants. Thus, this proposal would require a 
district director to inform the claimant that he may have the results 
of the Department's initial objective testing sent to his treating 
physician for use in the preparation of a medical report that complies 
with the Department's quality standards. The district director's notice 
would also inform the claimant that, if submitted, a report from his 
treating physician would count as one of the two reports he is entitled 
to submit under Sec. 725.414, and that he may wish to seek advice, from 
a lawyer or other qualified representative, before requesting his 
treating physician to supply such a report. In this way, the Department 
hopes to assist claimants who may not be able to afford the necessary 
objective testing.
Documentary Evidence Pertaining to the Liability of a Potentially 
Liable Operator or the Responsible Operator
    Although the Department now proposes to allow the submission of new 
documentary medical evidence while a case is pending before the Office 
of Administrative Law Judges, it has not altered the proposal with 
respect to the required submission to the district director of all 
documentary evidence relevant to potentially liable operators and the 
responsible operator. Proposed Secs. 725.408, 725.414 and 725.456 would 
continue to require that such evidence be submitted to the district 
director and that an administrative law judge may admit additional 
evidence on such issues only if the party seeking to submit the 
evidence demonstrates extraordinary circumstances justifying its 
admission. The Department has revised proposed Sec. 725.408, however, 
in response to operators' comments. That section would now allow an 
operator, notified of its potential liability under proposed 
Sec. 725.407, 90 days, rather than 60, to submit documentary evidence 
challenging the district director's determination that it meets the 
requirements in Sec. 725.408(a)(2). In addition, the 90 day period 
could be extended for good cause pursuant to Sec. 725.423.
Witnesses
    This proposal alters the provisions governing witnesses testimony. 
Secs. 725.414, 725.456, 725.457. The revisions would allow a physician 
to testify, either at a hearing or pursuant to deposition, if he 
authored a ``medical report'' admitted into the record pursuant to 
Sec. 725.414. Alternatively, if a party has submitted fewer than the 
two medical reports allowed as an affirmative case, a physician who did 
not prepare a medical report could testify in lieu of such a report. No 
party would be allowed to offer the testimony of more than two 
physicians, however, unless the administrative law judge found good 
cause to allow evidence in excess of the Sec. 725.414 limitations. The 
Department also has proposed altering its original limitation on the 
scope of a physician's testimony. If a physician is permitted to 
testify, he may testify as to any medical evidence of record, and not 
solely with respect to the contents of the report he prepared.
    The regulations governing witnesses testimony would continue to 
require that the parties notify the district director of any potential 
witness whose testimony pertains to the liability of a potentially 
liable operator or the responsible operator. Absent such notice, the 
testimony of such a witness may not be admitted into a hearing record 
absent an administrative law judge's finding of extraordinary 
circumstances. Secs. 725.414, 725.457.
Witnesses' Fees
    The Department received comments from both miners and coal mine 
operators criticizing its initial proposal, which would have assessed 
liability for witnesses' fees on the party seeking to cross-examine a 
witness if the witness's proponent did not intend to call the witness 
to appear at the hearing. In response to these objections, the 
Department now proposes to assess the costs of cross-examination of a 
witness on the party relying on that witness's affirmative testimony. 
This change will make the regulation more consistent with the manner in 
which witnesses' fees are paid in general litigation. Under the 
proposal, the party whose witness is to be cross-examined may request 
the administrative law judge to authorize a less burdensome method of 
cross-examination than an actual appearance at a hearing, provided that 
the alternative method authorized will produce a full and true 
disclosure of the facts.
    The only exception to this general rule would be in the case of an 
indigent claimant. If a claimant is the proponent of the witness whose 
cross-examination is sought, and the claimant demonstrates that he 
would be deprived of ordinary and necessary living expenses if required 
to pay the witness's fee and mileage necessary to produce the witness 
for cross-examination, the administrative law judge may apportion the 
costs of the cross-examination between the parties, up to and including 
the assessment of the total cost against the party opposing claimant's 
entitlement. A claimant shall be considered deprived of funds required 
for ordinary and necessary living expenses under the standards set 
forth at 20 CFR 404.508. The Black Lung Disability Trust Fund may not 
be held liable for such witness's fee in any case in which the district 
director has designated a responsible operator, except that the fund 
may be assessed the cost associated with the cross-examination of the 
physician who performed the miner's complete pulmonary evaluation.

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Subsequent Claims
    Subsequent applications for benefits are filed more than one year 
after the denial of a previous claim and may be adjudicated only if the 
claimant demonstrates that an applicable condition of entitlement has 
changed in the interim. In its initial notice of proposed rulemaking, 
the Department attempted to clarify the regulation governing subsequent 
claims by summarizing and incorporating into the regulation's language 
the outcome of considerable appellate litigation. 62 FR 3351-3353 (Jan. 
22, 1997). Because the courts of appeals have issued additional 
decisions since the Department's initial proposal, the proposal now 
merely codifies caselaw that is already applicable to more than 90 
percent of the claimants who apply for black lung benefits. The 
Department's complete discussion of the numerous comments received in 
response to the first notice of proposed rulemaking is found under 
Sec. 725.309.
    This second proposal contains two changes to Sec. 725.309 as 
initially proposed. Both changes affect Sec. 725.309(d)(3). The 
Department now proposes elimination of the rebuttable presumption that 
the miner's physical condition has changed if the miner proves with new 
medical evidence one of the applicable conditions of entitlement. 
Commenters responded that the proposal was confusing and would lead to 
considerable litigation. The Department agrees that the presumption is 
unnecessary and suggests its deletion. Under the new proposal, a 
subsequent claim will be denied unless the claimant demonstrates that 
one of the applicable conditions of entitlement has changed since the 
date upon which the order denying the prior claim became final. Section 
725.309(d)(3) of this proposal also clarifies the Department's original 
intent with respect to subsequent survivors' claims. In order to avoid 
an automatic denial, the applicant in a subsequent survivor's claim 
must demonstrate that at least one of the applicable conditions of 
entitlement is unrelated to the miner's physical condition at the time 
of his death. Thus, if the prior denial was based solely on the 
survivor's failure to establish that the miner had pneumoconiosis, that 
the miner's pneumoconiosis was caused by coal mine employment, or that 
the pneumoconiosis contributed to the miner's death, any subsequent 
claim must also be denied, absent waiver by the liable party.
    By allowing the filing of a subsequent claim for benefits which 
alleges a worsening of the miner's condition, the Department merely 
recognizes the progressive nature of pneumoconiosis. The proposed 
regulation does not allow the reopening of any prior claim which was 
denied more than one year before the filing of the subsequent claim. It 
also prohibits any award of benefits for a period of time covered by 
that prior denial. Responsible operators have argued to the circuit 
courts of appeals that the Department's regulatory scheme allows the 
``recycling'' of an old claim in violation of the Supreme Court's 
holding that a black lung claimant may not ``seek[] to avoid the bar of 
res judicata [finality] on the ground that the decision was wrong.'' 
Pittston Coal Group v. Sebben, 488 U.S. 105, 123 (1988). The courts 
have uniformly rejected this argument, see Lovilia Coal Co. v. Harvey, 
109 F.3d 445, 449-450 (8th Cir. 1997), cert. denied, 118 S. Ct. 1385 
(1998). Thus, the Department's proposal is fully consistent with the 
Supreme Court's holding in Sebben, and gives appropriate finality to 
prior denials.
    The Department's experience with subsequent claims also 
demonstrates the need for such filings. During the period between 
January 1, 1982, when the Black Lung Benefits Amendments of 1981 took 
effect, and July 16, 1998, 10.56 percent of the subsequent claims filed 
by living miners were ultimately awarded as opposed to only 7.47 
percent of first-time claims. To prevent a miner who has previously 
been denied benefits from filing a subsequent claim would force each 
miner to ``guess'' correctly when he has become totally disabled due to 
pneumoconiosis arising out of coal mine employment because a premature 
and unsuccessful filing would forever bar an award. In addition, the 
total number of subsequent claims filed by miners during that same time 
period, 30,964, as compared to the total number of claims filed, 
approximately 107,000, indicates that the provision is not abused. Of 
the total number of claims filed, only approximately 1,400, or 1.3 
percent, were from individuals who had been denied benefits three or 
more times. Thus, in general, only an individual who believes his 
condition has truly worsened files a subsequent claim.
    Although the Department's proposal would allow the filing of 
subsequent claims, the Department also intends to take steps to better 
educate claimants with respect to the requirements for entitlement. The 
Department intends to provide better initial pulmonary evaluations and 
better reasoned, more detailed explanations of denials of claims. By 
providing claimants with a more realistic view of their possible 
entitlement, the Department expects that the number of nonmeritorious 
applications will be reduced.
Attorneys' Fees
    In its first notice of proposed rulemaking, the Department 
attempted to clarify an operator's liability for a claimant's 
attorney's fees and the dates on which the operator's liability 
commenced. The Department also recognized the Trust Fund's liability 
for attorneys' fees and made it coextensive with a liable operator's. 
In general, the Department used the date of the event which created an 
adversarial relationship between the claimant and either the operator 
or the fund as the date on which liability for a claimant's attorney's 
fees commenced. The Department used this date based on the theory that 
it was the creation of an adversarial relationship which required 
employment of an attorney. Thus, for example, a successful claimant's 
attorney could only collect a fee from an operator or the fund for 
necessary work performed after the liable operator first contested the 
claimant's eligibility or the fund first denied the claim. See 62 FR 
3354, 3399 (Jan. 22, 1997).
    Upon further reflection and consideration of the comments received, 
however, the Department now proposes to allow successful claimants' 
attorneys to collect fees from an operator or the fund for all 
necessary work they perform in a case rather than only the work 
performed after creation of an adversarial relationship. Although the 
creation of an adversarial relationship and the ultimately successful 
prosecution of a claim are still necessary to trigger employer or fund 
liability for attorneys' fees, the date on which the adversarial 
relationship commenced will no longer serve as the starting point of 
liability. The Department believes this change may be appropriate in 
light of the evidentiary limitations present in the proposal. These 
limitations significantly alter the consequences of an early submission 
of evidence and make the quality of each piece of evidence submitted 
significantly more important. Thus, in an attempt to avoid setting a 
trap for the unwary claimant and to encourage early attorney 
involvement in these claims, the Department proposes allowing 
successful attorneys to collect fees for all of the necessary work they 
perform.
Treating Physicians' Opinions
    In the preamble accompanying its initial proposal, the Department 
noted that its proposal to allow a fact-finder to give controlling 
weight to the opinion of

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a treating physician attempted to codify principles embodied in case 
law and also drew on a similar regulation adopted by the Social 
Security Administration, 20 CFR 404.1527(d)(2). See 62 Fed. Reg. 3338, 
3342 (Jan. 22, 1997). The Department's proposal elicited widely 
divergent comment from numerous sources. The Department now invites 
comment on alternative ways to determine when a treating physician's 
opinion may be entitled to controlling weight.
    The purpose of this proposal is not to limit a factfinder's 
consideration of any properly admitted medical or other relevant 
evidence. Rather, this regulation would mandate only that the 
factfinder recognize that a treating physician may possess additional 
insight into the miner's respiratory or pulmonary condition by virtue 
of his extended treatment. The Department has proposed two changes to 
Sec. 718.104(d). In the absence of contrary probative evidence, the 
adjudication officer would be required to accept the physician's 
statement with regard to the nature and duration of the doctor's 
treatment relationship with the miner, and the frequency and extent of 
that treatment. Sec. 718.104(d)(5). The Department has also added 
language to Sec. 718.104(d) to make explicit its intent that a treating 
physician's opinion may establish all of the medical elements of 
entitlement. Finally, the Department has retained the language in the 
original proposal that whether controlling weight is given to the 
opinion of a treating physician shall also be based on the credibility 
of that opinion in light of its reasoning and documentation, other 
relevant evidence and the record as a whole.
Waiver of Overpayments
    In its previous notice of proposed rulemaking, the Department 
extended the right to seek waiver of recovery of an overpayment to all 
claimants, without regard to whether recovery was sought by a 
responsible operator or the Black Lung Disability Trust Fund. 62 FR 
3366-3367 (Jan. 22, 1997). The Department received numerous comments in 
response, many urging adoption of a more generous waiver provision 
fashioned after the Longshore and Harbor Workers' Compensation Act. 
Many other comments opposed the extension of waiver rights to all 
claimants as an unconstitutional deprivation of responsible operators' 
property rights and right to appeal. Thus far, these comments have not 
provided the Department with a sufficient basis for altering its 
original proposal. See the discussion under Sec. 725.547.
    The Department also heard testimony from a number of witnesses 
generally critical of the application of the criteria used to determine 
whether recoupment of an overpayment would defeat the purposes of title 
IV of the Federal Coal Mine Health and Safety Act or would be against 
equity and good conscience. These waiver criteria are incorporated into 
the Black Lung Benefits Act from the Social Security Act, 30 U.S.C. 
923(b), 940, incorporating 42 U.S.C. 404(b), and the Social Security 
Administration uses them in its adjudication of overpayments arising 
under title II of the Social Security Act. Thus, Social Security's 
current interpretation of these criteria is found in Social Security 
regulations governing title II claims, 20 CFR 404.506 through 404.512, 
not in their regulations governing Part B claims filed under the Black 
Lung Benefits Act, 20 CFR 410.561 through 410.561h. In order to make 
the standards for waiver of recovery of a black lung overpayment more 
current, the Department proposes to amend section 725.543 to 
incorporate Social Security's title II standards, rather than its Part 
B regulations.
Definition of Pneumoconiosis and Establishing Total Disability Due to 
Pneumoconiosis
    The Department has suggested no further change to its initial 
proposal defining pneumoconiosis, Sec. 718.201, and no significant 
change to its regulation defining total disability and disability 
causation, Sec. 718.204. The miner retains the burden of proving each 
of these required elements of entitlement.
    The Department received widely divergent comments from medical 
professionals on its proposed definition of pneumoconiosis. Some 
commenters argued that the proposal lacked a sound medical basis and 
would therefore unjustifiably increase the number of claims approved. 
Other physicians, also with expertise in pulmonary medicine, supported 
the proposal. As a result, the Department sought additional guidance on 
this issue from the National Institute for Occupational Safety and 
Health (NIOSH). The Department forwarded to NIOSH all of the comments 
and testimony it had received relevant to Sec. 718.201 and requested 
that NIOSH advise the Department whether any of the material altered 
that agency's original opinion, submitted during the comment period, 
which supported the Department's proposal. NIOSH concluded that the 
unfavorable comments and testimony did not alter its previous position: 
NIOSH scientific analysis supports the proposed definitional changes.
    The Department also received numerous comments on its proposed 
regulation defining total disability and disability causation, and 
setting out the criteria for establishing total disability. The 
Department has proposed no significant change to Sec. 718.204. It has 
proposed, however, a change in the methodology by which pulmonary 
function tests are administered. Sec. 718.103(a) and Appendix B to Part 
718. This proposal would require that pulmonary function testing be 
administered by means of a flow-volume loop, a more reliable method of 
ensuring valid, verifiable results in pulmonary function testing. The 
Department invites comment on these proposed changes.
True Doubt
    The ``true doubt'' rule was an evidentiary weighing principle under 
which an issue was resolved in favor of the claimant if the probative 
evidence for and against the claimant was in equipoise. In its first 
notice of proposed rulemaking, the Department proposed deleting 
subsection (c) of the current regulation at Sec. 718.3, because the 
Supreme Court held that this language failed to define the ``true 
doubt'' rule effectively. 62 FR 3341 (Jan. 22, 1997). Although the 
Department received a number of comments urging the proposal of a 
``true doubt'' rule, the Department has not done so in this second 
notice of proposed rulemaking.
    The Department believes that evaluation of conflicting medical 
evidence requires careful consideration of a wide variety of disparate 
factors, making the applicability of any true doubt rule extremely 
limited. The availability of these factors makes it unlikely that a 
factfinder will be able to conclude that the evidence, although in 
conflict, is equally probative. Thus, the Department does not believe 
that promulgation of a true doubt rule will enhance decision-making 
under the Act.
Federal Coal Mine Health and Safety Act Endorsement
    Section 726.203 was not among the regulations the Department opened 
for comment in its previous notice of proposed rulemaking. 
Representatives of the insurance industry commented, however, that a 
different version of the endorsement contained in Sec. 726.203(a) has 
been in use since 1984, with the Department's knowledge and consent. 
The Department is now opening Sec. 726.203 for comment. Although this 
proposal does not suggest alternative language for the endorsement, the

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preamble does contain the version of the endorsement which the industry 
provided. The Department invites comment on its possible use, but urges 
commenters to bear in mind the requirement in Sec. 726.205 that 
endorsements other than those provided by Sec. 726.203 may be used only 
if they do not ``materially alter or attempt [] to alter an operator's 
liability for the payment of any benefits under the Act.* * *'' The 
Department also requests that the insurance industry submit for the 
record any document it might possess from the Department authorizing 
use of the different endorsement.
Medical Benefits
    Since the Department's initial proposal, the U.S. Court of Appeals 
for the Sixth Circuit has issued a decision addressing the 
compensability of medical expenses incurred as a result of treatment 
for totally disabling pneumoconiosis. Glen Coal Co. v. Seals, 147 F.3d 
502 (6th Cir. 1998). A majority of that panel held that the Benefits 
Review Board had erred by applying the Fourth Circuit's presumption to 
a miner whose coal mine employment took place within the jurisdiction 
of the Sixth Circuit. In the Fourth Circuit, if a miner entitled to 
monthly black lung benefits receives treatment for a pulmonary 
disorder, it is presumed that that disorder is caused or aggravated by 
the miner's pneumoconiosis. Doris Coal Co. v. Director, OWCP, 938 F.2d 
492 (4th Cir. 1991); Gulf & Western Indus. v. Ling, __ F.3d __, 1999 WL 
148851 (4th Cir. Mar. 19, 1999).
    The Department believes that black lung benefit claims adjudication 
should vary as little as possible from circuit to circuit, and 
consequently continues to propose a regulatory presumption, based on 
the Fourth Circuit's approach, that would apply nationwide. The Sixth 
Circuit's opinion would allow such a result, given the separate views 
expressed by each of the three judges sitting on that panel. The 
Department also believes that a regulatory presumption governing the 
compensability of medical expenses for the treatment of totally 
disabling pneumoconiosis is appropriate given the rational connection 
between the facts proven and the facts presumed.

Explanation of Proposed Changes

Open Regulations

    The Department invites comments from interested parties on the 
following regulations: Sec. 718.3, Sec. 718.101, Sec. 718.102, 
Sec. 718.103, Sec. 718.104, Sec. 718.105, Sec. 718.106, Sec. 718.107, 
Sec. 718.201, Sec. 718.202, Sec. 718.204, Sec. 718.205, Sec. 718.301, 
Sec. 718.307, Sec. 718.401, Sec. 718.402, Sec. 718.403, Sec. 718.404, 
Appendix B to part 718, Appendix C to Part 718, part 722 (entire), 
Sec. 725.1, Sec. 725.2, Sec. 725.4, Sec. 725.101, Sec. 725.103, 
Sec. 725.202, Sec. 725.203, Sec. 725.204, Sec. 725.209, Sec. 725.212, 
Sec. 725.213, Sec. 725.214, Sec. 725.215, Sec. 725.219, Sec. 725.221, 
Sec. 725.222, Sec. 725.223, Sec. 725.306, Sec. 725.309, Sec. 725.310, 
Sec. 725.311, Sec. 725.351, Sec. 725.362, Sec. 725.367, Sec. 725.403, 
Sec. 725.405, Sec. 725.406, Sec. 725.407, Sec. 725.408, Sec. 725.409, 
Sec. 725.410, Sec. 725.411, Sec. 725.412, Sec. 725.413, Sec. 725.414, 
Sec. 725.415, Sec. 725.416, Sec. 725.417, Sec. 725.418, Sec. 725.421, 
Sec. 725.423, Sec. 725.452, Sec. 725.454, Sec. 725.456, Sec. 725.457, 
Sec. 725.458, Sec. 725.459, Sec. 725.465, Sec. 725.478, Sec. 725.479, 
Sec. 725.490, Sec. 725.491, Sec. 725.492, Sec. 725.493, Sec. 725.494, 
Sec. 725.495, Sec. 725.502, Sec. 725.503, Sec. 725.515, Sec. 725.522, 
Sec. 725.530, Sec. 725.533, Sec. 725.537, Sec. 725.543, Sec. 725.544, 
Sec. 725.547, Sec. 725.548, Sec. 725.606, Sec. 725.608, Sec. 725.609, 
Sec. 725.620, Sec. 725.621, Sec. 725.701, Sec. 725.706, Sec. 726.2, 
Sec. 726.8, Sec. 726.101, Sec. 726.104, Sec. 726.105, Sec. 726.106, 
Sec. 726.109, Sec. 726.110, Sec. 726.111, Sec. 726.114, Sec. 726.203, 
Sec. 726.300, Sec. 726.301, Sec. 726.302, Sec. 726.303, Sec. 726.304, 
Sec. 726.305, Sec. 726.306, Sec. 726.307, Sec. 726.308, Sec. 726.309, 
Sec. 726.310, Sec. 726.311, Sec. 726.312, Sec. 726.313, Sec. 726.314, 
Sec. 726.315, Sec. 726.316, Sec. 726.317, Sec. 726.318, Sec. 726.319, 
Sec. 726.320, and part 727 (entire).
New Regulations Open for Comment
    The Department's initial notice of proposed rulemaking contained a 
list of regulations, entitled ``Substantive Revisions,'' that the 
Department proposed to revise. 62 FR at 3340 (Jan. 22, 1997). That list 
of regulations is reproduced above with six additions. The Department 
is now proposing changes to ten regulations that were not open for 
comment previously: Sec. 725.351, Sec. 725.403, Sec. 725.465, 
Sec. 725.515, Sec. 725.533, Sec. 725.543, Sec. 725.544, Sec. 725.548, 
Sec. 726.3, and Sec. 726.203. Although the Department has not proposed 
any specific changes to section 726.203, the Department seeks comment 
from interested parties on the changes to that regulation suggested by 
the insurance industry. Accordingly, the Department now invites comment 
from all interested parties on the regulations listed above as Open 
Regulations.
Additional Technical changes
    The Department's first proposal identified a number of regulations 
to which the Department was proposing to make technical revisions. See 
62 FR 3340-41 (Jan. 22, 1997). The Department is now proposing 
additional technical revisions. Among other things, these proposed 
changes delete references to the control numbers used by the Office of 
Management and Budget to approve revisions to the regulations in 1984 
because the inclusion of these numbers is neither necessary nor helpful 
to understanding the Department's regulations. See, e.g., 20 CFR 
718.102 (1999). In addition, at the request of the Office of the 
Federal Register, the Department is proposing to change references to 
various components of title 20 of the Code of Federal Regulations and 
to various statutory provisions and to add a colon to Sec. 726.1. The 
following regulations should be added to the list of regulations to 
which the Department is making only technical revisions: Appendix A to 
Part 718, Sec. 725.201, Sec. 725.218, Sec. 725.220, Sec. 725.531, 
Sec. 725.536, Sec. 726.1, Sec. 726.103, Sec. 726.207, Sec. 726.208, 
Sec. 726.209, Sec. 726.210, Sec. 726.211, Sec. 726.212, and 
Sec. 726.213.
Complete List of Technical Revisions
    The complete list of regulations to which the Department is making 
technical changes is as follows: Sec. 718.1, Sec. 718.2, Sec. 718.4, 
Sec. 718.303, Appendix A to Part 718, Sec. 725.102, Sec. 725.201, 
Sec. 725.216, Sec. 725.217, Sec. 725.218, Sec. 725.220, Sec. 725.301, 
Sec. 725.302, Sec. 725.350, Sec. 725.360, Sec. 725.366, Sec. 725.401, 
Sec. 725.402, Sec. 725.404, Sec. 725.419, Sec. 725.420, Sec. 725.450, 
Sec. 725.451, Sec. 725.453A, Sec. 725.455, Sec. 725.459A, Sec. 725.462, 
Sec. 725.463, Sec. 725.466, Sec. 725.480, Sec. 725.496, Sec. 725.501, 
Sec. 725.503A, Sec. 725.504, Sec. 725.505, Sec. 725.506, Sec. 725.507, 
Sec. 725.510, Sec. 725.513, Sec. 725.514, Sec. 725.521, Sec. 725.531, 
Sec. 725.532, Sec. 725.536, Sec. 725.603, Sec. 725.604, Sec. 725.605, 
Sec. 725.607, Sec. 725.701A, Sec. 725.702, Sec. 725.703, Sec. 725.704, 
Sec. 725.705, Sec. 725.707, Sec. 725.708, Sec. 725.711, Sec. 726.1, 
Sec. 726.4, Sec. 726.103, Sec. 726.207, Sec. 726.208, Sec. 726.209, 
Sec. 726.210, Sec. 726.211, Sec. 726.212, and Sec. 726.213. Pursuant to 
the authority set forth in 5 U.S.C. 552(b)(3)(A), which allows federal 
agencies to alter ``rules of agency organization, procedure, or 
practice'' without notice and comment, the Department is not accepting 
comments on any of these regulations.

Unchanged Regulations

    Certain regulations are merely being re-promulgated without 
alteration and are also not open for public comment. To the extent 
appropriate, the Department's previous explanations of

[[Page 54971]]

these regulations, set forth in the Federal Register, see 43 FR 36772-
36831, Aug. 18, 1978; 48 FR 24272-24294, May 31, 1983, remain 
applicable. The same is true of those regulations to which the 
Department is making only technical changes. The following regulations 
are being re-promulgated for the convenience and readers: Sec. 718.203, 
Sec. 718.206, Sec. 718.302, Sec. 718.304, Sec. 718.305, Sec. 718.306, 
Sec. 725.3, Sec. 725.205, Sec. 725.206, Sec. 725.207, Sec. 725.208, 
Sec. 725.210, Sec. 725.211, Sec. 725.224, Sec. 725.225, Sec. 725.226, 
Sec. 725.227, Sec. 725.228, Sec. 725.229, Sec. 725.230, Sec. 725.231, 
Sec. 725.232, Sec. 725.233, Sec. 725.303, Sec. 725.304, Sec. 725.305, 
Sec. 725.307, Sec. 725.308, Sec. 725.352, Sec. 725.361, Sec. 725.363, 
Sec. 725.364, Sec. 725.365, Sec. 725.422, Sec. 725.453, Sec. 725.460, 
Sec. 725.461, Sec. 725.464, Sec. 725.475, Sec. 725.476, Sec. 725.477, 
Sec. 725.481, Sec. 725.482, Sec. 725.483, Sec. 725.497, Sec. 725.511, 
Sec. 725.512, Sec. 725.520, Sec. 725.534, Sec. 725.535, Sec. 725.538, 
Sec. 725.539, Sec. 725.540, Sec. 725.541, Sec. 725.542, Sec. 725.545, 
Sec. 725.546, Sec. 725.601, Sec. 725.602, Sec. 725.710, Sec. 726.5, 
Sec. 726.6, Sec. 726.7, Sec. 726.102, Sec. 726.107, Sec. 726.108, 
Sec. 726.112, Sec. 726.113, Sec. 726.115, Sec. 726.201, Sec. 726.202, 
Sec. 726.204, Sec. 726.205, and Sec. 726.206.
Changes in the Department's Second Proposal
    The Department's second proposal contains substantive changes, 
either in the regulation or the preamble language, or both, to the 
following regulations: Sec. 718.3, Sec. 718.101, Sec. 718.103, 
Sec. 718.104, Sec. 718.105, Sec. 718.106, Sec. 718.107, Sec. 718.201, 
Sec. 718.204, Sec. 718.205, Part 718, Appendix B, Sec. 725.2, 
Sec. 725.101, Sec. 725.209, Sec. 725.223, Sec. 725.309, Sec. 725.310, 
Sec. 725.351, Sec. 725.367, Sec. 725.403, Sec. 725.406, Sec. 725.407, 
Sec. 725.408, Sec. 725.409, Sec. 725.411, Sec. 725.414, Sec. 725.416, 
Sec. 725.456, Sec. 725.457, Sec. 725.459, Sec. 725.465, Sec. 725.491, 
Sec. 725.492, Sec. 725.493, Sec. 725.494, Sec. 725.495, Sec. 725.502, 
Sec. 725.503, Sec. 725.515, Sec. 725.533, Sec. 725.543, Sec. 725.544, 
Sec. 725.547, Sec. 725.548, Sec. 725.606, Sec. 725.701, Sec. 726.3, 
Sec. 726.8 and Sec. 726.203. The Department has carefully considered 
all of the comments that it has received to date with regard to the 
regulations. The preamble contains an explanation of the Department's 
proposed changes as well as its reason for rejecting other suggestions.
    In particular, the Department invites comment from small businesses 
that may not have been aware of the potential impact of the 
Department's proposed rule. In order to ensure that small businesses 
have adequate information, the Department intends to mail a copy of 
this proposal to each coal mine operator who is identified in current 
records maintained by the Mine Safety and Health Administration.
    Several commenters suggest that the Department lacks the authority 
to revise the regulations governing claims filed under the Black Lung 
Benefits Act. Although some of these objections are limited to 
individual regulations, such as the definition of ``pneumoconiosis,'' 
and will be addressed in the discussion of those regulations, two of 
the objections apply to a substantial number of the revisions made by 
the Department. They are: first, that the Department lacks the 
authority to promulgate regulations covering matters that were the 
subject of an unsuccessful attempt to amend the Act in 1994; and, 
second, that the Supreme Court's decision in Director, OWCP v. 
Greenwich Collieries, 512 U.S. 267 (1994), prohibits the Department 
from adopting any regulation that requires coal mine operators to bear 
a burden of proof.
Regulatory Authority
    In 1994, the 104th Congress considered legislation that would have 
amended the Black Lung Benefits Act by, among other things, limiting 
the amount of evidence parties may submit, providing claimants with 
overpayment relief, and allowing previously denied applicants to seek 
de novo review of their claims. The House passed a version of this 
legislation, H.R. 2108, on May 19, 1994, but the Senate adjourned in 
September, 1994 without acting on several similar bills. Numerous 
commenters have argued that in ``rejecting'' H.R. 2108, the Congress 
has already disapproved certain of the revisions now proposed by the 
Department. This argument fails on two grounds. First, Congress' 
failure to act does not deprive the Department of the authority to 
promulgate regulations otherwise conferred by the Black Lung Benefits 
Act. Second, Congress did not reject the legislation. Instead, the 
Senate adjourned without considering its version of the bill passed by 
the House.
    The starting point for determining the validity of any regulation 
is the legislation authorizing the agency to issue binding rules. As a 
general matter, ``[t]he power of an administrative agency to administer 
a congressionally created * * * program necessarily requires the 
formulation of policy and the making of rules to fill any gap left, 
implicitly or explicitly, by Congress.'' Morton v. Ruiz, 415 U.S. 199, 
231 (1974). ``If Congress has explicitly left a gap for the agency to 
fill, there is an express delegation of authority to the agency to 
elucidate a specific provision of the statute by regulation. Such 
legislative regulations are given controlling weight unless they are 
arbitrary, capricious, or manifestly contrary to the statute.'' Chevron 
v. Natural Resources Defense Council, 467 U.S. 837, 843-44 (1984).
    In Pauley v. Bethenergy Mines, Inc., 501 U.S. 680 (1991), the 
Supreme Court recognized the applicability of the Chevron analysis to 
regulations implementing the Black Lung Benefits Act:

    It is precisely this recognition that informs our determination 
that deference to the Secretary is appropriate here. The Black Lung 
Benefits Act has produced a complex and highly technical regulatory 
program. The identification and classification of medical 
eligibility criteria necessarily require significant expertise, and 
entail the exercise of judgment grounded in policy concerns. In 
those circumstances, courts appropriately defer to the agency 
entrusted by Congress to make such policy determinations.

Id. at 696. In addition to providing this general authority, the Black 
Lung Benefits Act contains several explicit provisions authorizing 
rule-making by the Department of Labor. Section 422(a) of the Act 
provides that ``[i]n administering this part [Part C of the Act], the 
Secretary is authorized to prescribe in the Federal Register such 
additional provisions * * * as [s]he deems necessary to provide for the 
payment of benefits by such operator to persons entitled thereto as 
provided in this part and thereafter those provisions shall be 
applicable to such operator.'' 30 U.S.C. 932(a). Section 426(a) of the 
Act similarly authorizes the Secretary to ``issue such regulations as 
[she] deems appropriate to carry out the provisions of this title.'' 30 
U.S.C. 936(a). As the Fourth Circuit has pointed out, these two 
provisions represent a ``broad grant of rulemaking authority.'' Harman 
Mining Co. v. Director, OWCP, 826 F.2d 1388, 1390 (4th Cir. 1987). 
Finally, the Act contains several other provisions authorizing the 
Secretary to promulgate regulations on specific subjects. See, e.g., 30 
U.S.C. 902(f)(1)(D) (criteria for medical tests which accurately 
reflect total disability), 932(h) (standards for assigning liability to 
operators), and 933(b)(3) (required insurance contract provisions).
    The Secretary's rulemaking authority is not unlimited. For example, 
section 422(a) prohibits the Department from promulgating regulations 
that are inconsistent with Congress's decision to exclude certain 
provisions of the Longshore and Harbor Workers' Compensation Act from 
those

[[Page 54972]]

incorporated into the Black Lung Benefits Act. Moreover, under Chevron, 
the Department clearly has no authority to issue regulations on a 
subject which Congress has addressed unambiguously. Pittston Coal Group 
v. Sebben, 488 U.S. 105 (1988). For example, in 1981, Congress amended 
the Act to limit the eligibility of surviving spouses of deceased coal 
miners who filed claims on or after January 1, 1982. Congress provided 
that such a spouse would be entitled to survivors' benefits only if 
[s]he could establish that the miner had died due to pneumoconiosis. 
Pub. L. 97-119, 95 Stat. 1635, Sec. 203(a)(2), (3). The bill passed by 
the House in 1994 would have reinstated so-called unrelated death 
benefits so as to allow a surviving spouse to collect benefits, no 
matter the miner's cause of death, so long as the miner was totally 
disabled due to pneumoconiosis at the time of death. Because that bill 
did not become law, however, the 1981 requirement remains in effect, 
and quite obviously limits the Department's ability to regulate in this 
area.
    The mere fact that Congress considered legislation affecting some 
of the same subjects addressed by the Department's regulatory proposal, 
however, cannot be construed as a similar limitation. ``Ordinarily, and 
quite appropriately, courts are slow to attribute significance to the 
failure of Congress to act on particular legislation.'' Bob Jones 
University v. United States, 461 U.S. 574, 600 (1983). In particular, 
the Department is not aware of any case holding that the failure of a 
previous Congress to enact legislation prevents an administrative 
agency from promulgating regulations on similar topics.
    Moreover, the regulations proposed by the Department are, for the 
most part, quite different in content from the provisions of either the 
bill that was passed by the House or the bills that were under 
consideration by the Senate when it adjourned. The Department's 
proposed revision of the definition of ``pneumoconiosis'' is similar in 
one respect to a provision in H.R. 2108 (recognizing that both 
obstructive and restrictive lung disease may be caused by exposure to 
coal mine dust). Other provisions, however, are significantly 
different. For example, H.R. 2108 would have completely relieved 
claimants of the obligation to repay overpaid amounts. In contrast, the 
Department's proposal would ensure only that the rules governing waiver 
of overpayments are applied without regard to whether the overpayment 
was made by the Black Lung Disability Trust Fund or a responsible 
operator. In fact, the Department has specifically rejected comments 
urging it to use certain provisions incorporated from the Longshore and 
Harbor Workers' Compensation Act that would bar the recoupment of 
overpayments by employers, an approach similar to that considered by 
the 104th Congress. Although the Department is not proposing the 
widespread overpayment relief that was contained in H.R. 2108 and was 
sought by these commenters, the Department also does not believe that 
Congress intended that claimants who receive payment from the Trust 
Fund be treated differently than claimants who receive payments from 
liable coal mine operators. The Department's proposal would simply 
guarantee the equitable treatment of both claimant groups.
    The Department's proposed evidentiary limitation is also 
significantly different from the limitation set forth in H.R. 2108. 
Under the bill passed by the House, claimants would have been allowed 
to submit three medical opinions, and responsible operators or the 
Trust Fund would have been allowed only one. The Department agrees that 
evidentiary limitations are needed to level the playing field between 
operators and claimants, but does not believe that the playing field 
should be tilted in favor of one party. Rather, the Department's 
proposal treats all parties equally and encourages them to rely on the 
quality of their medical evidence rather than its quantity. Hopefully, 
the proposal's evidentiary limitations will improve the decisionmaking 
process in black lung benefit claims.
    Finally, the Department's treatment of denied claims also differs 
significantly from that proposed in the legislation. H.R. 2108 would 
have allowed any claimant denied benefits based on a claim filed on or 
after January 1, 1982 to seek readjudication of that claim without 
regard to the previous denial. The Department's proposed revision of 
Sec. 725.309, on the other hand, specifically forbids the parties from 
seeking readjudication of the earlier denial of benefits. 
Sec. 725.309(d). Instead, the Department has proposed the codification 
of a solution that has already been accepted by five courts of appeals 
with jurisdiction over more than 90 percent of black lung claims filed. 
That solution requires a claimant to establish, with new evidence, at 
least one of the elements previously resolved against him before a new 
claim may even be considered on the merits. Even if a claimant 
establishes his entitlement to benefits based on a subsequent claim, 
benefits will be paid based only on that application and not for time 
periods covered by the earlier, final denial.
    The Department therefore cannot accept the argument that Congress' 
failure to enact legislation in 1994 prevents the Department from 
revising regulations that have not been amended since 1983. In many 
cases, the Department is simply proposing to codify the decisions of a 
majority of the appellate courts. In other cases, the Department's 
proposed revisions represent reasonable methods of dealing with 
problems that have arisen since the black lung benefits regulations 
were first promulgated in 1978. The Department's ability to address 
those problems in regulations is independent of any Congressional 
effort to reform the Black Lung Benefits Act, and should be judged 
according to the standards set forth in Chevron. For the reasons set 
forth in its initial notice of proposed rulemaking, 62 FR 3337 (Jan. 
22, 1997) and in this notice, the Department believes that its proposed 
revisions meet those standards.
Administrative Procedure Act
    A number of commenters also suggest that the Department's ability 
to create regulatory presumptions is constrained by the Administrative 
Procedure Act and the Supreme Court's decision in Greenwich Collieries. 
In Greenwich Collieries, the Supreme Court invalidated the use of the 
``true doubt'' rule, an evidentiary principle that effectively shifted 
the risk of non-persuasion from black lung applicants to coal mine 
operators. Under the ``true doubt'' rule, fact-finders were required to 
resolve any issue in favor of the claimant if the evidence for and 
against entitlement was equally probative. In contrast, section 7(c) of 
the Administrative Procedure Act (APA), 5 U.S.C. 556(d), states that 
``[e]xcept as otherwise provided by statute, the proponent of a rule or 
order has the burden of proof.'' The Court held that, even assuming 
that the Department could displace the APA through regulation, the 
Department's existing regulation, 20 CFR 718.403, was insufficient to 
do so. Finally, the Court determined that the party assigned the 
``burden of proof'' by the APA bore the risk of non-persuasion. As a 
result, the court held the APA required that the Department resolve 
cases of equally probative evidence against the claimant, the party 
seeking an order compelling the payment of benefits.
    The commenters argue that the Court's decision effectively 
prohibits the Department from imposing any burden of proof on an 
operator under the Black Lung Benefits Act. The Department does

[[Page 54973]]

not believe that Greenwich Collieries requires such a result. At the 
outset, it should be clear that the Court's decision did not address 
the relationship between the Department's rulemaking authority and the 
APA. Section 956 of the Federal Mine Safety and Health Act (FMSHA) 
provides as follows:

    Except as otherwise provided in this chapter, the provisions of 
sections 551 to 559 and sections 701 to 706 of Title 5 shall not 
apply to the making of any order, notice, or decision made pursuant 
to this chapter, or to any proceeding for the review thereof.

30 U.S.C. 956. ``This chapter'' is a reference to chapter 22 of Title 
30, United States Code, which codifies the FMSHA. Because the Black 
Lung Benefits Act is subchapter IV of the FMSHA, section 956 generally 
exempts the Act from the requirements of the section 7(c) of the APA. 
Similarly, although section 19 of the Longshore and Harbor Workers' 
Compensation Act, 33 U.S.C. 919, incorporated into the BLBA by 30 
U.S.C. 932(a), makes the APA applicable to the adjudication of claims 
under the LHWCA, that provision is incorporated into the Black Lung 
Benefits Act only ``except as otherwise provided * * * by regulations 
of the Secretary.'' The clear language of the FMSHA and the BLBA thus 
authorize the Secretary to depart from the dictates of section 7(c) 
when she determines it is in the best interest of the black lung 
benefits program.
    Moreover, the Court's decision in Greenwich Collieries did not 
purport to decide the issues on which a particular party bears the 
burden of persuasion. Rather, the Court merely decided that with 
respect to two issues on which the claimant bears the burden of proof 
under the Secretary's existing regulations (the existence of 
pneumoconiosis and the cause of that disease), the claimant must 
prevail by a preponderance of the evidence. As the Court observed in 
its subsequent decision in Metropolitan Stevedore Co. v. Rambo, 117 S. 
Ct. 1953, 1963 (1997), ``the preponderance standard goes to how 
convincing the evidence in favor of a fact must be in comparison with 
the evidence against it before that fact may be found, but does not 
determine what facts must be proven as a substantive part of a claim or 
defense.''
    Under Greenwich Collieries, then, the Department remains free to 
assign burdens of proof to parties as necessary to accomplish the 
purposes of the Black Lung Benefits Act. The Department has 
historically used regulatory presumptions where they were appropriate. 
For example, current 20 CFR 725.492(c), presumes that each employee of 
a coal mine operator was regularly and continuously exposed to coal 
dust during the course of his employment. In promulgating this 
regulation, the Department noted that such a showing required evidence 
that was not generally available to the Department; rather such 
evidence was within the control of the employer. 43 FR 36802-03 (Aug. 
18, 1978). Current 20 CFR 725.493(a)(6) presumes that a miner's 
pneumoconiosis arose in whole or in part out of employment with the 
employer that meets the conditions for designation as the responsible 
operator. Unless the presumption is rebutted, the regulation requires 
the responsible operator to pay benefits to the claimant on account of 
the miner's total disability or death. One commenter objected to this 
presumption, set forth in revised Sec. 725.494(a), as a violation of 
Greenwich Collieries, notwithstanding the Act's specific provision 
authorizing the use of presumptions with respect to assignment of 
liability to a miner's former employers. 30 U.S.C. 932(h).
    Even where the BLBA is silent, the Act grants the Secretary 
sufficiently broad rulemaking authority to authorize the adoption of 
other presumptions. In American Hospital Association v. NLRB, 499 U.S. 
606 (1991), the Court considered the ability of the National Labor 
Relations Board, using similarly broad regulatory authority, to define 
an appropriate bargaining unit by rulemaking even though the statute 
required the Board to decide the appropriate bargaining unit ``in each 
case.'' Citing a series of previous decisions, the Court held that 
``even if a statutory scheme requires individualized determinations, 
the decisionmaker has the authority to rely on rulemaking to resolve 
certain issues of general applicability unless Congress clearly 
expresses an intent to withhold that authority.'' Id. at 612. The Court 
expanded on the NLRB's rulemaking authority in Allentown Mack Sales and 
Service, Inc. v. NLRB, 118 S. Ct. 818 (1998). In dicta, the Court 
concluded as follows:

    The Board can, of course, forthrightly and explicitly adopt 
counterfactual evidentiary presumptions (which are in effect 
substantive rules of law) as a way of furthering legal or policy 
goals--for example, the Board's irrebuttable presumption of majority 
support for the union during the year following certification, see, 
e.g., Station KKHI, 284 N.L.R.B. 1339, 1340, 1987 WL 89811 (1987), 
enf'd, 891 F.2d 230 (C.A.9 1989). The Board might also be justified 
in forthrightly and explicitly adopting a rule of evidence that 
categorically excludes certain testimony on policy grounds, without 
regard to its inherent probative value. (Such clearly announced 
rules of law or of evidentiary exclusion would of course by subject 
to judicial review for their reasonableness and their compatibility 
with the Act.)

Id. at 828.
    The NLRB's rulemaking authority in this regard is not unique. The 
federal courts have upheld the use of presumptions by agencies as 
diverse as the Department of Transportation, see Chemical Manufacturers 
Association v. Department of Transportation, 105 F.3d 702, 705 (D.C. 
Cir. 1997) (``It is well settled that an administrative agency may 
establish evidentiary presumptions''); the Interstate Commerce 
Commission, see Western Resources, Inc. v. Surface Transportation 
Board, 109 F.3d 782, 788 (D.C. Cir. 1997); the Nuclear Regulatory 
Commission, see New England Coalition on Nuclear Pollution v. NRC, 727 
F.2d 1127, 1129 (D.C.Cir.1984) (Scalia, J.) (even a statutory mandate 
requiring consideration of a specific issue ``does not preclude the 
adoption of appropriate generalized criteria that would render some 
case-by-case evaluations unnecessary''); and the Department of 
Education, see Atlanta College of Medical and Dental Careers, Inc. v. 
Riley, 987 F.2d 821, 830 (D.C. Cir. 1993) (``* * * under the 
circumstances, it would seem quite reasonable for the Secretary to 
adopt regulations or even adjudicatory presumptions--bright-line 
rules--as to what a school must show * * *''). To the extent that the 
Department, like any other administrative agency, uses rulemaking to 
establish a presumption, that presumption must be based on a rational 
nexus between the proven facts and the presumed facts. Chemical 
Manufacturers Association, 105 F.3d at 705; NLRB v. Baptist Hosp., 
Inc., 442 U.S. 773, 787 (1979).
    The Department's proposed regulations include provisions that 
adjust burdens of proof among the parties. Section 725.495(c)(2), for 
example, provides that the potentially liable operator designated as 
the responsible operator by the Office of Workers' Compensation 
Programs bears the burden of establishing that another operator that 
employed the miner more recently is financially capable of assuming 
liability for the payment of benefits. Section 726.312 specifically 
allocates various burdens of proof between the Department and a coal 
mine operator against which the Department is seeking a civil money 
penalty for failure to secure the payment of benefits.
    In its initial notice of proposed rulemaking, 62 FR 3337 (Jan. 22, 
1997) and in this notice, the Department has demonstrated that such 
assignments of

[[Page 54974]]

burdens of proof have been carefully tailored to meet the specific 
needs of the black lung benefits program. Accordingly, the Department 
does not agree with those commenters who argue that the Supreme Court's 
decision in Greenwich Collieries prohibits the Department from 
requiring responsible operators and their insurers to meet any burden 
of proof in adjudications under the Act.

20 CFR Part 718--Standards for Determining Coal Miners' Total 
Disability or Death Due to Pneumoconiosis

Subpart A--General

20 CFR 718.3
    (a) In its earlier proposal, the Department proposed to delete 
subsection (c) of Sec. 718.3, which the Department had cited to the 
Supreme Court in support of its argument in favor of a ``true doubt'' 
rule. Under the ``true doubt'' rule, an evidentiary issue was resolved 
in favor of the claimant if the probative evidence for and against the 
claimant was in equipoise. In Director, OWCP v. Greenwich Collieries, 
512 U.S. 267 (1994), the Court held that an administrative law judge's 
use of the rule violated the Administrative Procedure Act, and that 
Sec. 718.3 was an ambiguous regulation that could not be read as 
authorizing such a rule.
    A number of commenters argue that the Supreme Court held any ``true 
doubt'' rule improper. Other comments urge the Department to reinstate 
the ``true doubt'' rule by promulgating a regulation that clearly 
authorizes fact-finders to use the rule in evaluating evidence in black 
lung benefits claims. Throughout this rulemaking, however, the 
Department has consistently stressed the need for factfinders to 
conduct in-depth analyses of the evidence based on its quality rather 
than quantity. Moreover, opinions by the courts of appeals and the 
Benefits Review Board over the past twenty years have firmly 
established that the evaluation of conflicting medical evidence 
includes consideration of a wide variety of disparate factors, thus 
making the applicability of any true doubt rule extremely limited. In 
the case of a medical report, for example, the factfinder must examine 
the report's documentation, its reasoning, its relationship to the 
other medical reports of record, and the physician's qualifications or 
other special status. The availability of all of these factors makes it 
unlikely that a factfinder will be able to conclude that the evidence, 
although in conflict, is equally probative. Accordingly, the Department 
does not believe that the promulgation of a revised ``true doubt'' rule 
will enhance decision-making under the Black Lung Benefits Act.
    (b) Several comments urge the Department to retain subsection (c) 
of the current version of Sec. 718.3. They argue that even if the 
language does not explicitly provide a ``true doubt'' rule, it is a 
useful reminder to factfinders of the purposes of the Black Lung 
Benefits Act. In particular, they point to the Department's quality 
standards for medical evidence and issues in which medical science does 
not provide a definitive answer. The Department recognizes that the 
adjudication of black lung benefits claims requires recognition of the 
difficulties faced by claimants in establishing their entitlement to 
benefits. Revised Sec. 718.101, for example, will require ``substantial 
compliance'' with all of the quality standards applicable to medical 
evidence, rather than strict adherence. Requiring ``substantial 
compliance'' with the quality standards will give the fact-finder 
sufficient flexibility to determine whether a particular piece of 
evidence is probative of the claimant's condition notwithstanding its 
failure to meet a relatively minor quality standard provision. The 
Department does not agree, however, that section 718.3 should contain a 
separate, and wholly unenforceable, statement of general principles. 
Subsection (c) simply restates Congressional intent reflected in the 
legislative history of the 1972 and 1978 amendments to the Black Lung 
Benefits Act, see S. Rep. No. 743, 92nd Cong., 2nd Sess. 11, 1972 
U.S.C.C.A.N. 2305; S. Rep. No. 95-209, 95th Cong., 2nd Sess. 13, 1978 
U.S.C.C.A.N. 237. That legislative history may be used to support a 
party's argument regardless of whether it is repeated in the 
Secretary's regulations.

Subpart B

20 CFR 718.101
    (a) The Department's proposed revision is intended to make clear 
its disagreement with Benefits Review Board case law holding that the 
Department's quality standards are applicable only to evidence 
developed by the Director, OWCP. See Gorzalka v. Big Horn Coal Co., 16 
Black Lung Rep. 1-48, 1-51 (Ben. Rev. Bd. 1990). Accordingly, the 
Department proposed to amend the regulations to ensure that all 
evidence developed in connection with black lung benefits claims meets 
certain minimal quality standards. One comment observes that, as 
drafted, the Department's revisions would allow factfinders to 
invalidate medical evidence in claims already pending before the 
Department although that evidence was valid under Board precedent when 
it was developed. The Department agrees that upsetting settled 
expectations regarding the applicability of the quality standards may 
work a substantial hardship in some cases, particularly those involving 
unrepresented claimants. Consequently, the Department has revised the 
language in section 718.101(b) to clarify that the mandatory nature and 
general applicability of the quality standards is prospective only. 
Once a final rule takes effect, any testing or examination conducted 
thereafter in connection with a black lung benefits claim that does not 
substantially comply with the applicable quality standard will be 
insufficient to establish the fact for which it is proffered.
    (b) Four comments oppose the general requirement in Sec. 718.101(b) 
that all evidence developed by any party in conjunction with a claim 
for black lung benefits must be in substantial compliance with the 
quality standards contained in subpart B. One comment notes the special 
hardship imposed on miners in trying to generate conforming evidence. 
Three comments assert that exclusion of nonconforming evidence violates 
the statutory mandate that ``all relevant evidence'' be considered in 
determining whether a claimant is entitled to benefits. 30 U.S.C. 
923(b). The Department disagrees. The quality standards have been an 
integral part of claims development and adjudication since the Part 718 
regulations were first promulgated in 1980. The Department has also 
consistently taken the position that the standards apply to all 
evidence developed by any party for purposes of prosecuting, or 
defending against, a claim for benefits. The proposed change simply 
makes this position clear. Finally, employing quality standards to 
ensure the use of reliable and technically accurate evidence is 
consistent with section 923(b). Evidence which fails the ``substantial 
compliance'' standard is inherently unreliable and thus necessarily 
inadequate to prove or disprove entitlement issues, and therefore is 
not ``relevant'' to the adjudication of the claim.
    (c) One comment asks that the Department clarify that the quality 
standards represent the only basis on which the reliability of a 
medical opinion or test may be challenged. As an example, the comment 
states that physicians cite the correlation between the one-second 
Forced Expiratory Volume and the Maximum Voluntary Ventilation as a 
basis for invalidating a

[[Page 54975]]

pulmonary function test, even though the MVV is not a required part of 
the test. In the Department's view, the quality standards provide 
factfinders with flexibility in their examination of the medical 
evidence of record. If an alleged flaw in medical evidence is not 
relevant to the necessary test results, the factfinder may properly 
ignore that flaw. The Department's quality standards, however, are not 
intended to serve as the sole basis upon which medical evidence may be 
evaluated. Instead, parties are free to develop any evidence that 
pertains to the validity of the medical evidence in order to provide 
the factfinder with the best evidence upon which to base a finding 
regarding the miner's physical condition.
    (d) Two comments are concerned that the quality standards could 
result in the exclusion of a miner's hospitalization and/or medical 
treatment records, or a report of biopsy or autopsy. Section 718.101, 
however, makes the quality standards applicable only to evidence 
``developed * * * in connection with a claim for benefits'' governed by 
20 CFR Parts 725 and 727. Therefore, the quality standards are 
inapplicable to evidence, such as hospitalization reports or treatment 
records, that is not developed for the purpose of establishing, or 
defeating, entitlement to black lung benefits.
    (e) One comment advocates permitting consideration of nonconforming 
tests which produce clinical results comparable to conforming tests. 
This suggestion is rejected for the reasons expressed in paragraph (b): 
failure to comply with the applicable quality standards deprives the 
evidence of its probative worth. Moreover, a nonconforming test which 
produces results similar to a conforming test does not significantly 
enhance the fact-finding process, given the availability of the 
technically accurate results.
    (f) One comment would require the Department to notify a party who 
submits nonconforming evidence, and afford an opportunity to 
rehabilitate the evidence. This requirement is unnecessary. Each party 
is responsible for developing evidence in support of its position which 
complies with the quality standards. Moreover, proposed Sec. 725.406 
does impose a duty on the district director to ensure that the medical 
examination sponsored by the Department is valid and conforming. If the 
district director identifies any deficiency in that examination, he 
must notify the physician and the miner, and take reasonable steps to 
correct that deficiency. Finally, evidence may be submitted up to 
twenty days before the formal hearing up to the limits provided in 
proposed Sec. 725.414. If the opposing party submits evidence in 
rebuttal, proposed Sec. 725.414 will permit the party that proffered 
the original evidence to attempt to rehabilitate evidence by submitting 
an additional report from the preparer of the original report.
    (g) Other comments oppose the use of quality standards in general 
terms. For the reasons expressed in the preamble to the proposed 
regulations, 62 FR 3341-42 (Jan. 22, 1997), the Department believes 
that such standards are necessary to ensure the development of reliable 
and technically accurate evidence for the adjudication of claims. 
Several comments express general support for requiring all parties to 
develop their medical evidence in conformance with the relevant quality 
standards.
20 CFR 718.103
    (a) One physician who testified at the Department's Washington, 
D.C. hearing objected to the proposal, set forth in Appendix B to Part 
718, that would have precluded miners undergoing pulmonary function 
testing from taking an initial inspiration from room air and instead 
would have required an initial inspiration from the spirometer. 
Transcript, Hearing on Proposed Changes to the Black Lung Program 
Regulations (July 22, 1997), p. 306 (testimony of Dr. David James). 
Under questioning by the Department's medical consultant, Dr. Leon 
Cander, Dr. James stated that use of the flow-volume loop would be more 
widely acceptable than the Department's proposal prohibiting an initial 
open-air inspiration. Transcript, pp. 319-320. After careful 
consideration, the Department agrees that the flow-volume loop may 
offer a more reliable method of ensuring valid, verifiable results in 
pulmonary function testing, and proposes to revise Sec. 718.103 in 
order to require that the flow-volume loop be used for every pulmonary 
function test administered to establish or defeat entitlement under the 
Black Lung Benefits Act. Spirometers capable of producing a flow-volume 
loop, and of electronically deriving a set of tracings showing volume 
versus time, are in use in a number of clinics and facilities 
specializing in the treatment of pulmonary conditions. While this 
notice of proposed rulemaking is open for public comment, the 
Department intends to conduct a survey of those clinics and facilities. 
Among the information the Department will seek is the extent to which 
they already use spirometers capable of producing flow-volume loops. 
The Department further notes that for clinics that do not already 
possess such a spirometer, the cost is less than $2,000. Because the 
use of flow-volume loops will increase the reliability of the pulmonary 
function study evidence submitted in black lung claims with only 
minimal cost, the Department proposes that all pulmonary function tests 
conducted after the effective date of the final rule be submitted in 
this form. Proposed changes have been made to subsections (a) and (b), 
as well as Appendix B, to accomplish this result. The Department 
invites comment on these changes.
    (b) Dr. James also observed that the language of subsection (a) is 
misleading in suggesting that pulmonary function testing may produce 
either a Forced Vital Capacity (FVC) or a Maximum Voluntary Ventilation 
(MVV) value. Transcript, Hearing on Proposed Changes to the Black Lung 
Program Regulations (July 22, 1997), pp. 304-5 (testimony of Dr. David 
James). Dr. James noted that a test must produce an FVC value in order 
to obtain a Forced Expiratory Volume for one second (FEV1), which is 
required by the regulation. The Department agrees, and has proposed 
revising subsection (a) accordingly.
    (c) The Department also proposes to revise subsection (b) in order 
to conform the regulation to the requirements of Appendix B. Currently, 
section 718.103(b) requires that three tracings of the MVV be performed 
unless the largest two values of the MVV are within 5 percent of each 
other. 20 CFR 718.103(b). Appendix B, however, provides that MVV 
results will be considered to have excessive variability if the two 
largest values vary by more than 10 percent. The Department proposes to 
adopt the 10 percent standard uniformly.
    (d) Two comments request the Department to amend section 718.103 to 
ensure that a miner's failure to produce a valid MVV value will not 
affect the validity of the FEV1 and FVC values. The Department agrees 
that the validity of the two tests should be assessed independently. 
The proposed change to subsection (a) will highlight the optional 
nature of the MVV test. Both comments also suggest that the failure of 
a test report to meet all of the requirements of subsection (b), such 
as the DOL claim number, should not wholly invalidate a test. Like 
other medical evidence, pulmonary function tests will be subject to the 
requirement of proposed Sec. 718.101 that they be in ``substantial 
compliance'' with the Department's quality standards. In a particular 
case, the parties remain free

[[Page 54976]]

to argue that a report's failure to meet certain technical requirements 
contained in the quality standards should not necessarily invalidate 
the report. The Department does not believe, however, that it would be 
appropriate to wholly remove these requirements from its quality 
standards.
    (e) One commenter observes that pulmonary function tests are not 
appropriate in all cases, noting that such testing may pose a danger to 
the health of some claimants. Section 718.103 does not affirmatively 
require the performance of pulmonary function tests, but merely sets 
forth the standards applicable to such studies, if performed. The 
Department agrees, however, that there may be cases in which 
performance of a pulmonary function test may be medically 
contraindicated. As a result, the Department has proposed revising 
Sec. 718.104(a)(6) to recognize that a medical report may not be 
excluded from consideration simply because the claimant's condition 
does not allow a physician to administer a pulmonary function test. The 
Department has also proposed reinstating language in 
Sec. 718.204(b)(2)(iv) that was inadvertently deleted from its initial 
proposal, 62 FR 3377 (Jan. 22, 1997).
20 CFR 718.104
    (a) One commenter objects to the requirement in subsection (a)(6) 
that all medical reports contain the results of pulmonary function 
testing. The commenter notes that in some cases, a miner may be 
physically unable to perform a pulmonary function test, or such a test 
may be medically contraindicated. The Department agrees, and has 
proposed revising subsection (a)(6) in order to recognize this 
possibility. When a miner cannot take a pulmonary function test, a 
physician writing a medical report must substantiate his conclusion(s) 
with other medically acceptable clinical and laboratory diagnostic 
techniques. This proposed addition merely recognizes the Department's 
longstanding position that pulmonary function tests may be medically 
contraindicated. The current regulation at 20 CFR 718.204(c)(4), which 
provides that a reasoned medical judgment may establish the presence of 
a totally disabling respiratory or pulmonary impairment, expressly 
recognizes that pulmonary function tests may be contraindicated. 
Similarly, the 1980 discussion accompanying promulgation of 20 CFR 
718.103 acknowledged the same point: ``If the physician believes that 
pulmonary function testing would impose a risk to the patient's well-
being, the physician should so state and refuse to have the patient 
perform the pulmonary function tests.'' 45 FR 13682 (Feb. 29, 1980).
    (b) Several commenters request that the regulation recognize that a 
treating physician's opinion may be used to establish all elements of a 
miner's entitlement to benefits. Although the proposed regulation was 
not intended to restrict the use of such a report, the Department has 
revised subsection (d) to explicitly list the elements of entitlement 
which a treating physician's opinion may establish.
    (c) Several commenters suggest that the Department accept a 
physician's statement as to the nature and duration of his relationship 
with the miner, and the frequency and extent of his treatment of the 
miner. The Department agrees that a claimant should not have to produce 
additional proof documenting these factors beyond that provided in the 
four corners of the physician's report unless the opposing party 
supplies credible evidence that demonstrates that the physician's 
statement is mistaken. The Department has therefore proposed an 
addition to subsection (d)(5) to make its intent clear.
    (d) Proposed paragraph (d), which would allow a fact-finder to give 
controlling weight to the opinion of a treating physician provided 
certain conditions are met, elicited a great deal of comment. Many 
commenters supported the proposal, noting that a treating physician has 
a greater familiarity with the miner's physical condition than a doctor 
who has only seen him once. Others opposed giving special credence to 
``small-town'' doctors without special expertise or training in 
respiratory or pulmonary disorders. Others simply expressed general 
opposition to the proposal. In the preamble accompanying its initial 
proposal, the Department explained that the proposed regulation 
attempted to codify existing case law and drew on a similar regulation 
adopted by the Social Security Administration, 20 CFR 404.1527(d)(2). 
See 62 FR 3338, 3342 (Jan. 22, 1997). The Department specifically 
invites comment on alternative methods for determining when a treating 
physician's opinion is entitled to controlling weight, including 
whether to adopt the Social Security Administration's rule.
    (e) Several commenters suggest that the proposed subsection (d)(5) 
is unnecessary and undermines any Departmental attempt to give a 
treating physician's opinion controlling weight. They request that the 
Department delete certain language in subsection (d)(5), which requires 
the factfinder to consider not only the treating physician's 
documentation and reasoning but also the other relevant evidence of 
record in determining whether the treating physician's opinion is 
entitled to controlling weight. These commenters would have the finder 
of fact credit a treating physician's opinion which meets the criteria 
in (d)(1)-(4) and is documented and reasoned without regard to the 
other relevant evidence of record. Another comment suggests that the 
Department has already accomplished this result, in violation of 
section 413(b) of the Act, 30 U.S.C. 923(b). The Department does not 
accept either suggestion. The purpose of the regulation is not to limit 
a factfinder's consideration of any properly admitted medical or other 
relevant evidence. Indeed, to do so might result in a mechanistic 
crediting of a treating physician's opinion which the courts have 
cautioned the Department to avoid. See Sterling Smokeless Coal Co. v. 
Akers, 131 F.3d 438, 441 (4th Cir. 1997); 62 FR at 3342 (Jan. 22, 
1997). Rather, the proposed regulation would mandate only that the 
factfinder recognize that a physician's long-term treatment of the 
miner may give that physician additional insight into the miner's 
respiratory or pulmonary condition.
    (f) Several commenters oppose any rule suggesting treating 
physicians' opinions may be given controlling weight. They argue that a 
factfinder's evaluation of a medical opinion should be based solely on 
the documentation and reasoning of that opinion as well as the 
qualifications of the physician. As the Department noted in its initial 
notice of proposed rulemaking, 62 FR 3342 (Jan. 22, 1997), special 
weight may be given a treating physician's opinion because that 
physician has been able to observe the miner over a period of time, and 
therefore may have a better understanding of the miner's physical 
condition. Although the factfinder must still evaluate the treating 
physician's report in light of all of the other relevant evidence of 
record, he should nevertheless be aware of the additional insight that 
a treating physician may bring to bear on the miner's respiratory or 
pulmonary condition.
    (g) Some commenters suggest that the ``treating physician'' rule 
should be removed from Sec. 718.104 and made a separate regulation. One 
suggests that its current placement appears to require that the 
treating physician's opinion must conform to the quality standards 
applicable to a report of physical examination. The Department intends 
that all reports of physical examination, including a report submitted 
by the

[[Page 54977]]

miner's treating physician, conform to the quality standards set forth 
in Sec. 718.104 if they are to be sufficient to establish or refute 
entitlement. The Department thus does not agree that subsection (d), 
governing treating physicians' opinions, should be made a separate 
regulation.
    (h) Several commenters state that the miner should be able to 
submit his treating physician's opinion without regard to the 
limitation on the amount of evidence each party would be able to submit 
under Sec. 725.414. These commenters argue that claimants, who are 
often unrepresented at the earliest stages of claims processing, will 
submit opinions from their treating physicians that do not conform to 
the Department's quality standards. The Department recognizes that the 
limitation on documentary medical evidence could have a substantial 
impact on unrepresented claimants who submit reports prematurely. 
Although the Department cannot agree to provide claimants with the 
opportunity to submit additional reports, the Department takes very 
seriously its obligation to inform all claimants of the evidentiary 
limitations in language that is clear and easily understood. In 
addition, as set forth in the proposed revision of Sec. 725.406, the 
Department intends to make the objective test results from each miner's 
section 413(b) pulmonary evaluation available to his treating physician 
at the miner's request. By providing these test results to the treating 
physician, the Department hopes to ensure that the ensuing opinion is 
as well documented as the other medical opinions of record and meets 
the Sec. 718.104 quality standard.
    (i) Several commenters argue that the terms ``treating physician'' 
and ``controlling weight'' are not defined. The intent of subsection 
(d), however, is not to create a strict rule to determine the outcome 
of a factfinder's evaluation of the medical evidence. Instead, the 
Department's goal is simply to require the factfinder to recognize the 
additional weight to which a physician's opinion may be entitled, in 
light of all of the other relevant evidence of record, where that 
physician has observed and treated the claimant over a period of time.
    (j) Several commenters object to certain language the Department 
used in the preamble of its initial notice of proposed rulemaking to 
explain its proposed revisions to Sec. 718.104. In the ``Summary of 
Noteworthy Proposed Changes,'' 62 FR 3339 (Jan. 22, 1997), the 
Department indicated that in evaluating a treating physician's opinion, 
a factfinder ``must'' consider, among other things, the physician's 
training and specialization. The Department did not intend to suggest 
that a factfinder's failure to consider such factors would necessarily 
represent reversible error. Only when a party raises the issue, for 
example, in the context of comparing the credentials of physicians 
offering contrary opinions, would the factfinder be required to 
consider such a factor. Moreover, even under such circumstances, a 
physician's training and specialization are only one factor for the 
factfinder to weigh in his evaluation of this evidence.
    (k) One commenter states that the quality standard applicable to 
medical reports should not require that the report include a chest X-
ray. The Department disagrees. A chest X-ray, administered and read in 
accordance with Sec. 718.102, is an important component of any 
evaluation for pneumoconiosis. Although a physician remains free to 
explain an opinion contrary to the medical testing that he conducted or 
reviewed, he must nevertheless have the benefit of that testing and 
account for its results. The requirement set forth in Sec. 718.101, 
that all evidence must be in ``substantial compliance'' with the 
applicable quality standards, affords all parties the opportunity to 
establish the reliability of any evidence notwithstanding its failure 
to strictly conform to the quality standards.
    (l) Two commenters request that the Department remove the clause 
from subsection (c) that limits the factfinder's use of non-conforming 
evidence in cases in which the miner is deceased and the physician is 
unavailable to clarify or correct his report. In such cases, the 
factfinder may consider a non-conforming medical report only if the 
record does not contain another conforming report. In this way, the 
Department hopes to ensure that entitlement determinations are based on 
the best quality medical evidence possible.
    (m) One comment requests that the Department include ``cardio-
pulmonary exercise testing'' as an ``other procedure[]'' under 
subsection (b). The Department does not intend that subsection (b) 
contain an exclusive list of medically acceptable procedures that may 
be used by a physician in the course of a physical examination. A 
physician is free to use any test, including cardio-pulmonary exercise 
testing, if he believes that it would aid in his evaluation of the 
miner.
20 CFR 718.105
    (a) One comment directed toward Appendix C is also relevant to 
paragraph (c)(6). The comment notes that the correct nomenclature for 
partial pressure of oxygen and carbon dioxide is an upper-case ``P'', 
not the lower-case ``p'' currently in use. The comment is correct, and 
the reference to the partial pressures will be changed.
    (b) Four comments oppose proposed paragraph (d), which requires the 
claimant to obtain a physician's opinion that a qualifying blood gas 
study conducted during a miner's terminal illness reflects a chronic 
respiratory or pulmonary condition caused by coal dust exposure. The 
comments suggest that qualifying scores should be presumed indicative 
of a totally disabling respiratory impairment unless the party opposing 
the claim produces evidence linking the test results to some other 
condition. While recognizing the concerns expressed by the comments, 
the Department nevertheless believes that paragraph (d) imposes an 
appropriate evidentiary burden on the claimant. Arterial blood gas 
studies conducted during a terminal illness hospitalization may be 
especially susceptible to producing low values unrelated to chronic 
respiratory or pulmonary disease. Consequently, reliance on such 
studies should be predicated on an additional showing that the 
qualifying (or abnormal) test results can be medically linked to 
chronic lung disease. One comment supported this proposal.
    (c) Two comments object to the requirement in paragraph (d) that 
the chronic respiratory or pulmonary impairment demonstrated by the 
``deathbed'' blood gas study must also be ``related to coal mine dust 
exposure.'' The Department agrees. The primary objective behind 
paragraph (d) is to ensure a connection between the qualifying blood 
gas values and a chronic respiratory or pulmonary impairment, rather 
than some other acute pathologic cause incidental to the miner's 
terminal illness. Thus, paragraph (d) addresses only the existence of a 
chronic respiratory or pulmonary impairment itself, not its cause. 
Including a requirement linking the chronic impairment to coal mine 
dust exposure is therefore inappropriate for purposes of Sec. 718.105. 
The claimant must still prove that any totally disabling respiratory or 
pulmonary impairment demonstrated by these blood gas study results 
arose out of coal mine employment in order to receive benefits, 20 CFR 
718.204(c)(1). Paragraph (d) has been revised to delete

[[Page 54978]]

the phrase ``related to coal mine dust exposure.''
20 CFR 718.106
    (a) Five comments urge the Department to restore the current 
paragraph (c), 20 CFR 718.106(c), which was omitted from the proposed 
regulation. This paragraph provides that the negative findings on a 
biopsy are not conclusive evidence that pneumoconiosis is absent, while 
positive findings do constitute evidence of the disease. The omission 
was inadvertent, and paragraph (c) will be restored in the final rule.
    (b) Two comments oppose the requirement in paragraph (a) that the 
autopsy protocol must include a gross macroscopic inspection of the 
lungs. The comments suggest that the requirement would implicitly 
preclude a pathologist from submitting an opinion based exclusively on 
a review of microscopic tissue samples. Paragraph (a) was not altered 
when the Department proposed changes to Sec. 718.106. This provision 
only requires macroscopic findings for purposes of the autopsy itself; 
no such findings are required for a reviewing physician. Consequently, 
a physician other than the autopsy prosector may submit an opinion 
based exclusively on the microscopic tissue samples. No change is 
necessary to permit such opinions.
    (c) Several comments urge the Department to adopt the criteria for 
diagnosing pneumoconiosis by autopsy or biopsy generated by the 
American College of Pathologists and Public Health Service in 1979. The 
Department has previously declined to promulgate specific pathological 
standards for diagnosing pneumoconiosis by autopsy or biopsy. 45 FR at 
13684 (Feb. 29, 1980); 48 FR at 24273 (May 31, 1983). Furthermore, the 
record does not contain any evidence addressing, or establishing, a 
consensus in the medical community about the accepted standards for 
diagnosing pneumoconiosis by autopsy or biopsy. Although the comment 
refers to Kleinerman et al., ``Pathologic Criteria for Assessing Coal 
Workers' Pneumoconiosis,'' in the Archives of Pathology and Laboratory 
Medicine (June 1979), the record does not establish whether this 
article reflects the current prevailing standards for diagnosing 
pneumoconiosis. The recommendation is therefore rejected.
20 CFR 718.107
    (a) One comment suggests modifying the reference to ``respiratory 
impairment'' in paragraph (a) to ``respiratory or pulmonary 
impairment.'' The Department accepts this suggestion because the 
current paragraph (a) refers to ``respiratory or pulmonary 
impairment,'' and the omission of ``pulmonary'' was inadvertent. 
Another comment recommended adding disability and disability causation 
to the list of issues for which a party may submit ``other medical 
evidence.'' Paragraph (a) is unchanged from the current provision, 
except as described in the previous discussion, and satisfactorily sets 
forth the general purposes for which ``other medical evidence'' may be 
offered. The suggested change is therefore unnecessary.
    (b) One comment supports the addition of proposed paragraph (b).

Subpart C

20 CFR 718.201
    (a) In its initial notice of proposed rulemaking, 62 FR 3343, 3376 
(Jan. 22, 1997), the Department proposed revising the definition of the 
term ``pneumoconiosis'' to recognize the progressive nature of the 
disease. The Department also proposed clarifying the existing 
definition to make clear that obstructive lung disease may fall within 
the definition of pneumoconiosis if it is shown to have arisen from 
coal mine employment. The proposal would not alter the current 
regulations' requirement that each miner bear the burden of proving 
that he has pneumoconiosis, 20 CFR 718.403, 725.202(b); proposed 
Secs. 725.103, 725.202(d)(2)(i). Thus, notwithstanding the proposed 
revision, in order to demonstrate that he has pneumoconiosis, each 
miner would be required to prove that his lung disease arose out of 
coal mine employment. If a miner's chest X-rays, autopsy or biopsy 
demonstrate the presence of the disease, and the miner has at least ten 
years of coal mine employment, he is aided by a statutory presumption 
that his pneumoconiosis arose out of coal mine employment. 30 U.S.C. 
921(c)(1). If, however, the miner fails to demonstrate the existence of 
pneumoconiosis by means of X-ray, biopsy or autopsy, he must prove that 
his lung disease arose out of coal mine employment in order to carry 
his burden of proof and establish that he has pneumoconiosis.
    A number of commenters representing coal mine operators and the 
insurance industry object strongly to both revisions, arguing that the 
Department lacks the authority to elaborate on the statute's definition 
of pneumoconiosis, and that, in any event, the Department had violated 
the statute by failing to consult with the National Institute for 
Occupational Safety and Health (NIOSH) before proposing the changes. 30 
U.S.C. 902(f)(1)(D). The commenters also argue that the Department's 
proposed revision lacks a sound medical basis and would therefore 
unjustifiably increase the number of claims approved. In support of 
their arguments, these commenters presented testimony at the 
Department's Washington, DC, hearing from a panel of physicians with 
expertise in pulmonary medicine. Transcript, Hearing on Proposed 
Changes to the Black Lung Program Regulations (July 22, 1997), pp. 19-
83.
    The Department also received comments, as well as testimony, 
supporting the proposed changes from black lung associations, miners, 
and several physicians with expertise in pulmonary medicine. Among the 
favorable comments was one from NIOSH, which approved both aspects of 
the Department's proposed revision to Sec. 718.201. In so doing, NIOSH 
referenced its own 1995 publication, the same document that the 
Department had cited in its initial notice of proposed rulemaking, 
``National Institute for Occupational Safety and Health, Occupational 
Exposure to Respirable Coal Mine Dust,'' Secs. 4.1.2, 4.2.2 et seq. 
(1995). 62 FR 3343 (Jan. 22, 1997).
    NIOSH was created by the Occupational Safety and Health Act ``in 
order to carry out the policy set forth in section 651'' of that Act as 
well as to perform certain functions in support of the Occupational 
Safety and Health Administration. 29 U.S.C. 671. Among its other 
provisions, section 651 encourages the Occupational Safety and Health 
Administration to ``explor[e] ways to discover latent diseases, 
establish [] causal connections between diseases and work in 
environmental conditions, and conduct [] other research relating to 
health problems.'' 29 U.S.C. 651(b)(6). Accordingly, Congress created 
NIOSH as a source of expertise in occupational disease and as an expert 
in the analysis of occupational disease research. Given the widely 
divergent comments received from medical professionals on this proposed 
regulation, the Department sought additional guidance from NIOSH by 
providing it with all of the comments and testimony the Department had 
received relevant to the proposed revisions to Sec. 718.201. The 
Department requested that NIOSH advise it whether any of the material 
altered that agency's original opinion.
    NIOSH concluded as follows:


[[Page 54979]]


    The unfavorable comments received by DOL do not alter our 
previous position: NIOSH scientific analysis supports the proposed 
definitional changes. Research indicates that the proposed changes 
are reasonable and could be incorporated to further refine the 
definition of pneumoconiosis in the BLBA regulations.

Letter from Dr. Paul Schulte, Director, Education and Information 
Division (Dec. 7, 1998). In addition to the 1995 NIOSH publication, Dr. 
Schulte cited several recent studies and other sources: ``Coal mining 
and chronic obstructive pulmonary disease: a review of the evidence'' 
[Coggon and Newman-Taylor 1998]; ``The British Coal Respiratory Disease 
Litigation'' [Judgment of Mr. Justice Turner]; ``Progression of simple 
pneumoconiosis in ex-coalminers after cessation of exposure to coalmine 
dust'' [Donnan et al. 1997]; ``Adverse effects of crystalline silica 
exposure'' [American Thoracic Society (ATS) 1997]; ``Risk of silicosis 
in a Colorado mining community'' [Kriess and Zehn 1996]; and ``Risk of 
silicosis in a cohort of white South African gold miners'' [Hnizdo and 
Sluis-Cremer 1993]. He concluded as follows:

    These publications provide additional support for the NIOSH 
position stated in the August 20, 1997 letter: ``NIOSH continues to 
support the proposed amendment to Section 718.201 to include chronic 
obstructive pulmonary disease in the definition of pneumoconiosis; 
NIOSH also supports the revision of the definition of pneumoconiosis 
to reflect the scientific evidence that pneumoconiosis is an 
irreversible, progressive condition that may become detectable only 
after cessation of coal mine employment, in some cases.''

    Given this NIOSH review and conclusion, the Department sees no 
scientific or legal basis upon which to alter its original proposal. To 
the extent that the Department was required to consult with NIOSH, it 
has now done so. Finally, as addressed elsewhere in this proposal, the 
Department believes that it possesses the statutory authority to 
promulgate a legislative regulation defining the term 
``pneumoconiosis.'' See Old Ben Coal Co. v. Scott, 144 F.3d 1045, 1048 
(7th Cir. 1998), citing Peabody Coal Co. v. Spese, 117 F.3d 1001, 1009-
1010 (7th Cir. 1997) (en banc).
    (b) One commenter objects to the proposed definition of ``legal 
pneumoconiosis'' on the ground that Sec. 718.202(a)(2) does not contain 
the requirement that the covered disease must be a ``dust'' disease of 
the lung. The commenter also believes that this definition would 
include all obstructive pulmonary disease. The Department disagrees 
with both points. Section 718.201 begins in paragraph (a) with the 
statutory definition of pneumoconiosis, stating that pneumoconiosis 
means a chronic ``dust'' disease of the lung and its sequelae. 
Paragraph (a)(2) is a subdivision of the introductory paragraph and in 
no way contradicts it. In fact, by its very terms, the proposed 
definition of pneumoconiosis would cover only that lung disease arising 
out of coal mine employment, i.e., lung disease significantly related 
to, or substantially aggravated by, dust exposure in coal mine 
employment. Sec. 718.201(b).
    (c) Two commenters argue that Congress rejected an amendment to the 
definition of pneumoconiosis that would have included obstructive lung 
disorders, and that the Department therefore lacks the authority to 
make such a change. Above, the Department explained that Congress's 
consideration of, but failure to enact, legislation on particular 
subjects does not bar the Department from promulgating regulations on 
those subjects, provided the Department is acting within the scope of 
Congress's grant of regulatory authority. Thus, the Department does not 
agree that Congressional inaction renders invalid its proposed 
amendment of the definition of ``pneumoconiosis.''
20 CFR 718.204
    (a) In reviewing the comments submitted in response to the initial 
notice of proposed rulemaking, the Department realized that it had 
inadvertently omitted language from the current version of 20 CFR 
718.204(c)(4) setting out circumstances under which a claimant may 
establish total disability by means of a medical report. The Department 
intended no change in the regulation's meaning and has restored the 
omitted language to proposed Sec. 718.204(b)(2)(iv).
    (b) A number of commenters object to the Department's proposed 
amendment to subsection (a), while others support it. That revision is 
intended to ensure that disabling nonrespiratory conditions are not 
considered a bar to entitlement when the miner also suffers from 
totally disabling pneumoconiosis. As the Department explained in its 
initial notice of proposed rulemaking, the revision announces the 
Department's preference for the Sixth Circuit's decision in 
Youghiogheny & Ohio Coal Co. v. McAngues, 996 F.2d 130 (6th Cir. 1993), 
cert. den., 510 U.S. 1040 (1994), over the Seventh Circuit's decision 
in Peabody Coal Co. v. Vigna, 22 F.3d 1388 (7th Cir. 1994). 62 FR 3344-
45 (Jan. 22, 1997). After preparation of the Department's proposal, the 
Sixth Circuit held, for the first time in a Part 718 case, that a miner 
may not be denied black lung benefits simply because he may also be 
totally disabled by a coexisting non-respiratory impairment. Cross 
Mountain Coal Co., Inc. v. Ward, 93 F.3d 211, 216-217 (6th Cir. 1996). 
The commenters have provided no basis upon which to alter the 
Department's original proposal.
    (c) A number of commenters object to the Department's proposal to 
revise subsection (b)(1) to codify the Department's position that a 
miner is entitled to benefits only if his respiratory or pulmonary 
impairment is totally disabling. The commenters urge that the 
Department adopt a ``whole person'' approach, allowing an award of 
benefits if pneumoconiosis contributed at least in part to the miner's 
overall disability, considering both respiratory and nonrespiratory 
impairments. Although the commenters argue that the Department's 
position violates the statute, the Third and Fourth Circuits have 
reached a contrary conclusion. Beatty v. Danri Corp. & Triangle 
Enterprises, 49 F.3d 993 (3d Cir. 1995); Jewell Smokeless Coal Corp. v. 
Street, 21 F.3d 241 (4th Cir. 1994). Because the commenters offer no 
other basis upon which to amend the Department's proposal, subsection 
(b)(1) has not been changed.
    (d) A number of commenters take issue with the Department's 
proposal to define disability causation in subsection (c). Several 
commenters state that the Department has no authority to issue such a 
regulation, suggesting that the statutory language is clear. The 
Department disagrees. The statute authorizes the payment of benefits 
``[i]n the case of total disability of a miner due to pneumoconiosis,'' 
30 U.S.C. 922(a)(1), and explicitly provides that ``[t]he term ``total 
disability'' has the meaning given it by regulations * * * of the 
Secretary of Labor under part C of this title * * *.'' 30 U.S.C. 
902(f)(1). Even absent such an explicit grant of rulemaking authority, 
Congress' use of the broad phrase ``due to'' leaves significant 
questions in resolving the issue of disability causation. In Atlanta 
College of Medical and Dental Careers, Inc. v. Riley, 987 F.2d 821 
(1993), the D.C. Circuit noted that the Secretary of Education was 
authorized to promulgate interpretative regulations under the Student 
Loan Default Prevention Initiative Act. That statute authorized the 
Secretary to calculate a default rate from participating schools, but 
required him to exclude loans which ``due to improper servicing or 
collection, would result in an inaccurate or incomplete calculation.'' 
Addressing Congress' use of the phrase ``due to,'' the court held:


[[Page 54980]]


    And must the school show ``but for'' causation, proximate 
causation or merely some reasonable link? The statute itself 
provides no answers to these riddles; accordingly, under Chevron's 
second step, we would defer to any reasonable interpretation of the 
``due to'' language that the Secretary proffered. See also Jerry 
Mashaw, A Comment on Causation, Law Reform, and Guerilla Warfare, 73 
Geo. L. Rev. 1393, 1396 (1985) (identifying the ``cause'' of 
something necessarily implicates a policy choice).

Id. at 830. The Department's definition of disability causation under 
the Black Lung Benefits Act is similarly necessary and well within the 
scope of its regulatory authority.
    Other commenters argue that the Department has selected the wrong 
definition. Several commenters suggest that the Department delete the 
word ``substantially'' from paragraph (c)(1). Another asks that the 
standard be ``due at least in part.'' One commenter requests that the 
Department add the word ``substantially'' to paragraphs (c)(1)(i) and 
(c)(1)(ii). Several comments suggest that the term ``substantially 
contributing'' is undefined, and urge that the Department set a 
percentage of disability as the threshold, while another commenter asks 
that the Department use the term ``actual contributing cause'' in order 
to bar the award of benefits where pneumoconiosis has made only a de 
minimis contribution to total disability.
    The Department discussed its selection of the ``substantially 
contributing cause'' standard in its initial notice of proposed 
rulemaking. 62 FR 3345 (Jan. 22, 1997). The Department explained that 
its selection was intended to codify a body of caselaw from various 
federal appellate courts that differed very little in determining 
disability causation. In addition, the proposal paralleled the standard 
used by the Department to determine whether a miner's death was caused 
by pneumoconiosis. Because the language of the death standard is a 
direct reflection of Congressional intent, see 48 FR 24275-24278 (May 
31, 1983), the Department believes that it should be used for 
disability causation as well. Finally, the Department does not agree 
that a percentage threshold is appropriate. As the Department 
previously explained, the ``substantially contributing cause'' standard 
requires that pneumoconiosis make a tangible and actual contribution to 
a miner's disability. The standard is also further defined in the 
proposed regulation. It requires that pneumoconiosis must either have 
an adverse effect on the miner's respiratory or pulmonary condition or 
worsen an already totally disabling respiratory or pulmonary 
impairment. Whether a particular miner meets the ``substantially 
contributing cause'' standard is a matter to be resolved based on the 
medical evidence submitted in each case.
    Finally, several commenters suggest that the Department's proposal 
will allow compensation where a miner's totally disabling respiratory 
impairment has been caused by cigarette smoking. Neither the Black Lung 
Benefits Act, nor the court of appeals decisions, nor the Department's 
proposed regulation allows benefits to be awarded where a miner's 
totally disabling respiratory impairment is caused solely by cigarette 
smoking. The courts have held irrelevant, however, the existence of 
causes of a miner's total respiratory or pulmonary disability in 
addition to pneumoconiosis. See Jonida Trucking, Inc. v. Hunt, 124 F.3d 
739, 744 (6th Cir. 1997) (coexisting heart disease). In such a case, 
the miner meets the statutory and regulatory criteria for an award of 
benefits.
20 CFR 718.205
    (a) Several comments request that the Department reinstate 
unrelated death benefits, that is, benefits to surviving spouses of 
miners who were totally disabled due to pneumoconiosis at the time of 
their death but who did not die due to pneumoconiosis. Although such 
benefits were formerly available, Congress amended the Act in 1981 to 
require that a surviving spouse who filed her claim on or after January 
1, 1982 establish that the miner died due to pneumoconiosis. Pub. L. 
97-119, 95 Stat. 1635, Sec. 203(a)(2), (3). The Department cannot issue 
regulations contrary to the expressed will of Congress.
    Another comment, however, suggests that the Department has done 
just that by proposing that a surviving spouse may establish death due 
to pneumoconiosis by proving that pneumoconiosis hastened the miner's 
death. The Department disagrees. Rather, the Department has simply 
proposed codifying a standard that has been unanimously adopted by the 
federal courts of appeals, a fact recognized by other commenters. In 
addition to the Third, Fourth, Sixth, and Seventh Circuit decisions 
cited in the initial notice of proposed rulemaking, 62 FR 3345-3346 
(Jan. 22, 1997), the Tenth and Eleventh Circuits have also deferred to 
the Director's interpretation of the current regulation, and announced 
their support for the standard that the Department is proposing to 
codify. Northern Coal Co. v. Director, Office of Workers' Compensation 
Programs, 100 F.3d 871, 874 (10th Cir.1996); Bradberry, v. Director, 
Office of Workers' Compensation Programs, 117 F.3d 1361, 1365-1366 
(11th Cir. 1997). The Department's proposal thus does no more than 
recognize the decisions of appellate courts with jurisdiction over more 
than 90 percent of the claims filed under the Black Lung Benefits Act. 
The suggestion that the Department has violated Congressional intent is 
simply incorrect.
    (b) One commenter asks the Department to apply the standard set 
forth in subsection (b)(2) to claims filed on or after January 1, 1982, 
the effective date of the Black Lung Benefits Amendments of 1981. 
Subsection (b)(2) permits an award of benefits in a survivor's claim 
filed before January 1, 1982 if death was due to multiple causes, 
including pneumoconiosis, and it is not medically feasible to 
distinguish which disease caused death or the extent to which 
pneumoconiosis contributed to the miner's death. This provision is 
derived in substantial part from the presumption set forth in section 
411(c)(2) of the Act, 30 U.S.C. 921(c)(2), and implemented by 20 CFR 
718.304. Under section 411(c)(2), a deceased miner with ten or more 
years of coal mine employment, who died from a respirable disease, is 
presumed to have died due to pneumoconiosis. In implementing this 
provision, the Secretary added Sec. 718.303(a)(1) to the regulations, 
allowing death to be found due to a respirable disease if such disease 
was one of several causes of the miner's death and it is not feasible 
to determine which disease caused death or the extent to which the 
respirable disease contributed to the cause of death. Section 
718.205(b)(2) permitted an award under similar circumstances in cases 
in which the miner had less than 10 years of coal mine employment, but 
the survivor had established that pneumoconiosis was one of the 
multiple causes of death. In 1981, Congress eliminated the section 
411(c)(2) presumption for survivors' claims filed on or after January 
1, 1982. Pub. L. 97-119, Sec. 202(b)(1). In promulgating regulations to 
effectuate Congress's intent, the Department applied the same 
limitation to subsection (b)(2). See comment (p), 48 FR 24278 (May 31, 
1983). Because subsection (b)(2) is so closely connected with the 
section 411(c)(2) presumption, the Department continues to believe that 
it may not apply this regulatory provision to claims filed on or after 
January 1, 1982.

[[Page 54981]]

Appendix B to Part 718

    (a) The proposed changes to Appendix B are designed to implement 
the Department's proposed requirement that physicians use the flow-
volume loop in reporting the results of pulmonary function tests. See 
Explanation of proposed Sec. 718.103. The Department invites comment on 
these changes.
    (b) A number of commenters suggest that one Appendix provision is 
unnecessarily restrictive. It requires that the two highest FEV1 
results of the three acceptable tracings agree within 5 percent or 100 
ml, whichever is greater. Appendix B(2)(ii)(G). They suggest that the 
standard either be eliminated entirely, or that it be replaced with a 
variability limit of 10 percent or 200 ml. One comment recommends that 
the Department should have a separate standard for ensuring the 
reliability of FVC results. As proposed, Appendix B limits the 
variability only of FEV1 and MVV results.
    The Department is reluctant to eliminate the Appendix B(2)(ii)(G) 
standard entirely; the standard provides a baseline measurement which 
serves to guarantee the reproducibility, and thus the validity, of each 
conforming pulmonary function study. However, the Department recognizes 
that there may be individuals who are physically unable to produce 
results that fall within the 5 percent limit, but whose results are, in 
the opinion of the physician administering the test, a valid reflection 
of the individual's best effort to perform the test. Accordingly, the 
Department invites comment as to how to maintain a standard that 
guarantees the reproducibility of the FEV1 and FVC values, but also 
allows consideration of valid FEV1 results in excess of the current 5 
percent requirement.
    (c) Several commenters argue that the Appendix B tables are too 
stringent and should be revised. These tables set forth pulmonary 
function test results which may establish that a miner's respiratory or 
pulmonary impairment is totally disabling. The Black Lung Benefits 
Reform Act of 1977 required the Department to consult with the National 
Institute for Occupational Safety and Health in the development of 
criteria for medical tests that accurately reflect total disability in 
coal miners. 30 U.S.C. 902(f)(1)(D). On April 25, 1978, the Department 
proposed the pulmonary function test criteria set forth in Appendix B, 
setting the ``qualifying'' values for the FEV1 and MVV test at 60 
percent of normal pulmonary function, as adjusted for sex, height, and 
age. 43 FR 17730-31 (Apr. 25, 1978). When the Department published the 
final Part 718 rules on February 29, 1980, it added tables for the FVC 
test. 45 FR 13703-06 (Feb. 29, 1980). The Department also responded to 
comments urging that the qualifying values be reduced, observing that 
although there was no consensus on the correct values, the record 
contained substantial support from experts for the 60 percent figure. 
Id. at 13711. The Department did not re-propose the Appendix B tables 
in its initial notice of proposed rulemaking, see 62 FR 3373 (Jan. 22, 
1997) (noting that the tables in Appendix B remain unchanged), and the 
commenters offer no medical support for the request that they be 
revised. Consequently, the Department has not proposed any revision of 
the table values.

20 CFR Part 725--Claims for Benefits Under Part C of Title IV of 
the Federal Mine Safety and Health Act, As Amended

Subpart A--General

20 CFR 725.2
    (a) The Department has made several technical changes to the 
language of the proposed regulation to make the regulation easier to 
read.
    (b) This proposal changes Sec. 725.2(c) to add Sec. 725.351 to the 
list of amended regulations which will apply only to claims filed after 
the effective date of the final rule. The Department's proposal 
requires the district director's development of a complete evidentiary 
record identifying the proper responsible operator. Once a case is 
referred to the Office of Administrative Law Judges, neither the 
Director, OWCP, nor a potentially liable operator identified by the 
district director will be able to submit any additional evidence on 
issues relevant to the responsible operator question. For example, only 
while a claim is pending before the district director may a potentially 
liable operator contest that it was an operator after June 30, 1973, 
that it employed the miner for one year, or that the miner's employment 
included at least one working day after December 31, 1969, 
Sec. 725.408. Accordingly, the district director must be able to obtain 
all of the information necessary to meet the Department's burden of 
proof under Sec. 725.495.
    To aid the district director in gathering such information, this 
proposal revises and streamlines Sec. 725.351, which grants district 
directors the power to issue subpoenas duces tecum. A district director 
will no longer be required to seek written approval from the Director, 
OWCP, prior to issuing such a subpoena. See explanation of 
Sec. 725.351. Because the revised regulations governing the 
identification of responsible operators, Secs. 725.407-.408, will apply 
only to newly filed claims, however, the district director's new 
authority under Sec. 725.351 must be similarly limited. Accordingly, 
Sec. 725.351 is added to the list of amended regulations which will not 
be effective with respect to claims pending on the effective date of 
the final rule.
    (c) A number of comments request that the Department make the final 
rule applicable to all pending claims. As the Department explained in 
its original proposal, 62 FR 3347-48 (Jan. 22, 1997), however, it lacks 
the statutory authority to make many changes retroactive. In addition, 
certain changes, such as the limitation on the quantity of medical 
evidence, would seriously disrupt the adjudication of currently pending 
claims if they were made universally applicable.
    (d) A number of commenters believe that the Department lacks the 
authority to make any of the changes retroactive, particularly because 
those changes will apply to subsequent claims filed by miners who have 
previously been denied benefits. They argue that subsequent claims are 
typically based on employment that ended many years ago, and that the 
insurance industry is not permitted to charge additional premiums in 
order to cover the increased liability that will result under the 
Department's proposal. In support of their argument that the Department 
is not permitted to effect such a change, they cite the Contract Clause 
of the United States Constitution. The Contract Clause is in Section 10 
of Article I, which is a series of prohibitions against actions by 
state governments. In relevant part, it states that ``[n]o State shall 
* * * pass any Bill of Attainder, ex post facto Law, or Law impairing 
the Obligation of Contracts, or grant any Title of Nobility.'' The 
Supreme Court has observed that ``[i]t could not justifiably be claimed 
that the Contract Clause applies, either by its own terms or by 
convincing historical evidence, to actions of the National 
Government.'' Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 467 
U.S. 717, 732, n. 9 (1984). Thus, the Contract Clause does not bar 
Congress from enacting any legislation. Similarly, the Contract Clause 
is inapplicable to the Secretary's rulemaking by its very terms, and 
the comment has cited no precedent to the contrary.
    Moreover, the Department does not agree that its proposed 
rulemaking results in the impairment of any contracts. At the hearing 
held in Washington, D.C., on July 22-23, 1997,

[[Page 54982]]

the Department heard testimony suggesting that the Supreme Court's 
recent decision in United States v. Winstar, 518 U.S. 839 (1996), 
prohibits the Department's regulatory efforts. At issue in Winstar was 
Congress's enactment of legislation that effectively revoked promises 
made by the Federal Home Loan Bank Board and the Federal Savings and 
Loan Insurance Corporation to induce three thrift institutions to 
acquire financially distressed savings and loans. Although the case did 
not produce a majority opinion, a majority of the Justices concurred in 
the holding that the United States was liable to the thrift 
institutions for breach of contract. Justice Souter's plurality opinion 
observed that the promises at issue were central to the institutions' 
agreement to acquire the troubled savings and loans; absent the 
government's promise, ``the very existence of their institutions would 
then have been in jeopardy from the moment their agreements were 
signed.'' 518 U.S. at 910.
    The Department's regulatory revisions present a fundamentally 
different case. Initially, the Department notes that Justice Souter 
stated that the government's regulatory authority was unaffected by the 
contracts: ``the agreements [at issue in that case] do not purport to 
bind the Congress from enacting regulatory measures.'' 518 U.S. at 881. 
Instead, the Court held, the agreements obligated the government to 
assume the risk of loss, and thus be liable for damages, if the 
regulations were changed. By contrast, the contracts purchased by the 
coal mining industry to insure themselves against black lung claims 
contain no provision requiring the Department to assume any risk of 
loss. Although the Department prescribes the form of such contracts, 
and the Black Lung Disability Trust Fund may be considered a 
beneficiary of them, these are not contracts between the government and 
a private party. Moreover, as reflected in the endorsement authorized 
by the Department, Sec. 726.203, the contracts specifically recognize 
the possibility that the Act may be amended while the policy is in 
force, and place the risk of those amendments on the insurer. See 
National Independent Coal Operators Association v. Old Republic 
Insurance Company, 544 F. Supp. 520 (W.D. Va. 1982). The Department has 
explained above that its rulemaking is fully consistent with, and 
authorized by, the provisions of the Black Lung Benefits Act. 
Accordingly, the Court's decision in Winstar presents no bar to the 
Department's promulgation of regulations, and does not obligate the 
Department to pay damages to the insurance industry.
    (e) One comment urges the Department to adopt a bright-line test 
making all of the revisions applicable only to claims filed after the 
final rule becomes effective. In particular, the commenter points to 
changes in Part 726 which will unfairly prejudice coal mine operators 
that have purchased insurance in compliance with the existing 
regulations. As the Department explained in its earlier notice of 
proposed rulemaking, the only revisions which will apply to pending 
claims are those which clarify the Department's longstanding 
interpretation of the Act and the current regulations. 62 FR 3348 (Jan. 
22, 1997). Those revisions are not considered retroactive. See Pope v. 
Shalala, 998 F.2d 473, 483 (7th Cir. 1993). The Department believes 
that they should be applied to all pending claims to ensure the claims' 
uniform treatment. Moreover, the Department does not believe that the 
changes to Part 726 will result in the imposition of any additional 
liability on the part of coal mine operators in compliance with the 
Act's insurance requirements.
20 CFR 725.101
    (a) Several written comments and hearing statements oppose amending 
the definition of ``benefits'' in Sec. 725.101(a)(6) to include the 
cost of the medical examination of the claimant authorized under 
Sec. 725.406 and subsidized by the Trust Fund. The opponents suggest 
that the amended definition would impose the cost of the examination on 
the claimant if he later decides to withdraw the claim or becomes 
liable for the repayment of overpaid benefits. The Department 
acknowledges the commenters' concerns, but assures them that the cost 
of the examination, although a ``benefit'', cannot be shifted to the 
claimant. In the preamble accompanying the proposed revision of 
Sec. 725.306, the Department stated it ``will not require reimbursement 
of the amount spent on the claimant's complete pulmonary evaluation as 
a condition for withdrawing a claim.'' 62 FR 3351 (Jan. 22, 1997). 
Similarly, a claimant who must repay overpaid ``benefits'' is not 
liable for reimbursing the Trust Fund for the medical examination. An 
overpayment encompasses payments to which the individual is ultimately 
not entitled, 20 CFR 725.540, while each applicant for benefits is 
entitled by virtue of the Black Lung Benefits Act to the complete 
pulmonary examination. 30 U.S.C. 923(b). In addition, Sec. 725.522 
contemplates that only payments made pursuant to an initial 
determination of eligibility by the district director or pursuant to an 
``effective order by a district director, administrative law judge, 
Benefits Review Board, or court'' may be treated as an overpayment 
pursuant to Sec. 725.540 in the event the claimant is ultimately found 
ineligible for benefits. The cost of the initial pulmonary evaluation 
is not such a payment. Consequently, the claimant cannot be required to 
repay the cost of that examination whatever the outcome of the 
adjudication of the claim.
    (b) One comment opposes the revised definition of ``benefits'' in 
subsection (a)(6) because it imposes liability for the examination on 
the responsible operator if the claimant ultimately secures benefits. 
The comment argues that the cost-shifting is not authorized by the 
Black Lung Benefits Act. The Department, however, has consistently 
taken the position that an operator found liable for the payment of the 
claimant's benefits is also liable to the Trust Fund for the cost of 
the initial pulmonary evaluation authorized by 30 U.S.C. 923(b). This 
requirement is in the current regulations at 20 CFR 725.406(c). The 
revision of Sec. 725.101(a)(6) merely makes this language consistent 
with Sec. 725.406.
    (c) The Department proposes to revise subsection (a)(6) in order to 
include a cross-reference to Sec. 725.520(c), which defines the term 
``augmented benefits.'' Because regulations that precede Sec. 725.520, 
such as Sec. 725.210, also use the term ``augmented benefits,'' the 
Department believes that the parties seeking a definition of that term 
should be able to find an appropriate reference in Sec. 725.101.
    (d) Three comments support the revised definitions of ``coal 
preparation'' (Sec. 725.101(a)(13)) and ``miner'' 
(Sec. 725.101(a)(19)), which exclude coke oven workers from coverage of 
the Black Lung Benefits Act.
    (e) Two comments oppose the proposed revision of 
Sec. 725.101(a)(31), which would exclude certain benefits paid from a 
state's general revenues from the definition of ``workers' compensation 
law.'' One comment supported the change. The opposing comments broadly 
suggest the proposed change would adversely affect the Trust Fund by 
making certain state benefits ineligible for offset against federal 
benefits, creating uncertainty in benefits funding, and contradicting 
the holding in Director, OWCP v. Eastern Associated Coal Corp., 54 F.3d 
141 (3d Cir. 1995). The Department disagrees. The Black Lung Benefits 
Act requires federal black lung benefits to be offset by any amount of 
compensation received under state or

[[Page 54983]]

federal workers' compensation laws for disability or death due to 
pneumoconiosis. In Eastern Associated Coal, the Third Circuit held that 
the BLBA is ambiguous as to the meaning of a ``workers' compensation 
law.'' The Court also held that the Director's long-standing practice 
of excluding state-funded benefits from the ambit of ``workers' 
compensation law'' was inconsistent with the plain meaning of the 
implementing regulations. Finally, the Court suggested the agency ``has 
the means and obligation to amend its regulations to provide for [an] 
exception'' for state benefits funded through general revenues. 54 F.3d 
at 150. The Department has therefore proposed to exercise its 
regulatory authority and eliminate any perceived inconsistency between 
the agency's position and the black lung program's implementing 
regulations. The Department's position is entirely consistent with the 
decision in Eastern Associated Coal; the Court held only that the 
agency's practice was inconsistent with existing regulations, and not 
that it was prohibited by the statute. Moreover, the Court invited the 
Department to undertake the present course of action.
    (f) One comment opposes the revised definition of ``year'' in 
Sec. 725.101(a)(32) because it includes approved absences from work in 
computing the length of time the miner worked for the coal company. 
Case law has established the validity of including certain periods of 
time when the miner is not working in establishing the duration of the 
miner's work relationship with a coal company. Northern Coal Co. v. 
Director, OWCP [Pickup], 100 F.3d 871, 876-877 (10th Cir. 1996); Boyd 
v. Island Creek Coal Co., 8 Black Lung Rep. 1-458, 1-460 (1986); Verdi 
v. Price River Coal Co., 6 Black Lung Rep. 1-1067, 1-1069/1-1070 
(1984); cf. Thomas v. BethEnergy Mines, Inc., 21 Black Lung Rep. 1-10, 
1-16/1-17 (1997) (upholding inclusion of sick leave in determining 
length of miner's employment with operator, but rejecting Director's 
position that sick leave cannot be counted in determining whether miner 
was ``regularly'' employed during the year of employment with 
operator). No reason for deviating from this precedent has been 
offered.
    (g) One comment broadly opposes the definition of the term ``year'' 
in subsection (a)(32), but identifies only one specific objection: the 
commenter contends that use of the 125-day exposure standard is invalid 
because of the reduced incidence of pneumoconiosis in current miners. A 
current reduction in the occurrence of pneumoconiosis, assuming that 
such a decline has occurred, is not a sufficient basis for revisiting 
the exposure standard. The pool of potential claimants who may apply 
for benefits under these regulations is not restricted to those 
individuals mining coal over the recent past. Consequently, a decline 
in the current incidence of the disease does not necessarily undermine 
the 125-day standard.
    (h) One comment objects to the use of wages, compared to annual 
average wage rates, to calculate the miner's employment history for 
purposes of determining a ``year'' of coal mine employment under 
subsection (a)(32); two other comments generally support the 
definition, but express concern over the undue reliance on Social 
Security itemized wage earning records. All three comments emphasize 
the potentially inaccurate information contained in the itemized 
earnings records. No changes in the proposed definition are necessary 
to alleviate these concerns. Section 725.101(a)(32) does not accord 
special deference to any particular type of record for determining when 
a miner worked or how much he earned during any given period of time. 
In any specific case, a party may provide testimony or other evidence 
as to the length of coal mine employment, amount of wages, or accuracy 
or inaccuracy of any particular record.
    (i) The Department is proposing one additional change to subsection 
(a)(32). In order to account for leap years, which have 366 days 
instead of 365, the Department proposes to use the larger figure in 
computing a ``year'' when one of the days in the period at issue is 
February 29.

Subpart B

20 CFR 725.209
    The Department proposed a change to Sec. 725.209(a)(2)(ii) in its 
initial notice of proposed rulemaking by adding a requirement that a 
dependent child who is at least 18 years of age and not a student must 
be under a disability which began before the age of 22 for purposes of 
augmenting the benefits of a miner or surviving spouse. 62 FR 3390 
(Jan. 22, 1997). This proposal changes Sec. 725.209(a)(2)(ii) to 
eliminate the age requirement. The change implements the statutory 
definition of ``dependent,'' as it pertains to a child. Section 402(a) 
of the Black Lung Benefits Act (BLBA) defines a ``dependent child'' to 
mean ``a child as defined in subsection (g) without regard to 
subparagraph (2)(B)(ii) thereof[.]'' 30 U.S.C. 902(a)(1). The reference 
to section 402(g)(2)(B)(ii) is the statutory requirement that a child 
be disabled before the age of 22. By removing the reference to age for 
purposes of a dependent child, Congress allowed any disabled child who 
meets the remaining statutory criteria to be considered a dependent of 
the miner or his widow without regard to when the child's disability 
began. A miner or his widow may receive augmented benefits for up to 
three dependents. 30 U.S.C. 922(a)(4). The Benefits Review Board has 
reached the same conclusion concerning the intended operation of 30 
U.S.C. 902(a)(1). See Hite v. Eastern Associated Coal Co., 21 Black 
Lung Rep. 1-46 (1997); Wallen v. Director, OWCP, 13 Black Lung Rep. 1-
64 (1989). Finally, the change in the regulation effectuates a 
distinction between classes of dependent children drawn by the statute. 
In order for a child to establish dependency on a deceased miner as a 
condition to receipt of benefits in his own right, the BLBA requires 
the ``child'' to meet all the requirements of 30 U.S.C. 902(g). 30 
U.S.C. 922(a)(3). These requirements include a deadline for the onset 
of disability: either age 22 or, in the case of a student, before the 
individual ceases to be a student. See also Sec. 725.221. A child/
beneficiary therefore must meet the age requirement for disability 
while the child/augmentee is relieved of this burden under the BLBA and 
the regulations. Hite, 21 Black Lung Rep. at 1-49; Wallen, 13 Black 
Lung Rep. at 1-67-68. Accordingly, the proposed version of Sec. 725.209 
is revised to reflect the statutory definition of ``dependent child'' 
and the distinction between a child/beneficiary and child/augmentee.
20 CFR 725.223
    The Department proposed paragraph (d) in the initial notice of 
rulemaking to create a vehicle for reentitling a miner's dependent 
brother or sister whose eligibility terminates upon marriage, if that 
marriage ends and the individual again meets all the criteria for 
entitlement. 62 FR 3393 (Jan. 22, 1997). Upon further consideration, 
the Department has concluded that permitting reentitlement in such 
circumstances is contrary to longstanding and consistent agency policy. 
20 CFR 725.223(c) (DOL regulation); 410.215(c), (d) (SSA regulation). 
The only situation in which reentitlement is allowed involves a 
surviving spouse or surviving divorced spouse who remarries after the 
death of, or divorce from, the miner, but later regains single status 
and satisfies the remaining criteria for eligibility. See response to 
comments, Sec. 725.213. The Department has declined to extend similar 
treatment to children who marry

[[Page 54984]]

because marriage is a permanent bar to their entitlement under the 
statute. No reason exists to accord preferential treatment to the 
miner's surviving dependent siblings. Once an otherwise eligible 
brother or sister marries or remarries, entitlement terminates, and the 
marriage operates as a bar to future entitlement. If the brother or 
sister is already married when he or she becomes a dependent of the 
miner, the fact of marriage does not preclude entitlement if the 
brother or sister has not received any amount of support from his or 
her spouse. Once support is provided, then the married brother or 
sister loses eligibility. In either case, the termination of 
entitlement is justified by the reasonable assumption that the 
individual will receive financial support from the spouse during the 
marriage, and rely on savings or other benefits acquired during the 
marriage should it terminate. The Department therefore proposes to 
remove paragraph (d) from Sec. 725.223.

Subpart C

20 CFR 725.309
    (a) Numerous comments support this proposal, which simply reflects 
the nearly unanimous holdings of the federal courts of appeals 
affirming the Department's treatment of subsequent claims. The proposal 
also brought responses from a number of commenters, however, who 
generally oppose allowing claimants to file subsequent claims, and 
argue that the Department's proposal would further expand the right to 
file subsequent applications. Subsequent applications are filed more 
than one year after the denial of a previous claim. They may be awarded 
only if the claimant demonstrates that an applicable condition of 
entitlement has changed in the interim. As the Department explained in 
its initial proposal, the subsequent claims provision represents a 
recognition of the progressive nature of pneumoconiosis. See 62 FR 
3351-3353 (Jan. 22, 1997).
    The limited nature of the Department's proposed revisions cannot be 
overemphasized. The Third, Fourth, Sixth, and Eighth Circuits have 
adopted the Department's position. Lovilia Coal Co. v. Harvey, 109 F.3d 
445 (8th Cir. 1997), cert. denied, 118 S. Ct. 1385 (1998); Lisa Lee 
Mines v. Director, OWCP, 86 F.3d 1358 (4th Cir. 1996); LaBelle 
Processing Co. v. Swarrow, 72 F.3d 308 (3d Cir. 1995); Sharondale Coal 
Co. v. Ross, 42 F.3d 993 (6th Cir. 1994). The Seventh Circuit's view is 
substantially similar. Peabody Coal Co. v. Spese, 117 F.3d 1001 (1997). 
Only the Tenth Circuit has adopted a contrary view. Wyoming Fuel Co. v. 
Director, OWCP, 90 F.3d 1502 (10th Cir. 1996). The Department's 
proposed regulation thus merely codifies caselaw that is already 
applicable to more than 90 percent of the claimants who apply for black 
lung benefits. In addition, as discussed earlier in this document, the 
Department's revisions will not result in the automatic reopening of 
claims, as was required by the Black Lung Benefits Reform Act of 1977, 
or the de novo adjudication of claims, as would have been required by 
H.R. 2108, the 1994 legislative initiative discussed in more detail 
above. The 1977 Reform Act resulted in the reopening of over 100,000 
claims. The Department estimated that H.R. 2108 would have resulted in 
a substantial number of refilings based on its promise of de novo 
adjudication, that is, adjudication without the need to establish that 
the miner's condition has changed. By contrast, between January 1, 1982 
and July 16, 1998, the Department received only 30,964 claims filed by 
claimants who had previously been denied. Because the revised 
regulations will offer no assistance to claimants whose condition has 
not changed, it is not likely to encourage the filing of a large number 
of additional subsequent claims.
    Moreover, the Department's experience with subsequent claims 
clearly demonstrates the need for allowing miners to file them. Of the 
49,971 first-time claims filed by living miners between January 1, 1982 
(the date upon which the Black Lung Benefits Amendments of 1981 took 
effect) and July 16, 1998, 3,731, or 7.47 percent, were ultimately 
awarded. In that same time period, the Department received 30,964 
subsequent claims from miners who had previously been denied benefits 
under the Act. Of those claims, 3,269, or 10.56 percent, were awarded. 
These figures suggest that many miners file applications for benefits 
before they are truly disabled. Elsewhere in this reproposal, the 
Department has outlined the steps it intends to take in order to 
provide claimants with a realistic view of their possible entitlement, 
including better initial pulmonary evaluations and better reasoned 
explanations of the denial of their claims. As a result of these steps, 
the Department hopes that claimants will be able to assess more 
accurately the strength of their applications throughout the process. 
To automatically deny those who previously filed claims, however, would 
unfairly penalize those miners who have truly become totally disabled 
due to pneumoconiosis and would deprive them of the benefits to which 
they may be entitled.
    One commenter suggested that the Department's subsequent claims 
provision allows unsuccessful claimants to file multiple times, 
resulting in the waste of considerable resources by companies required 
to defend against them. The Department's experience with the current 
subsequent claims regulation, which has not been substantially changed, 
indicates that the provision has not led to widespread misuse. 
Approximately 107,000 claims were filed between January 1, 1982 and 
July, 1998. Approximately 1,400 of these were from individuals who had 
previously been denied benefits three or more times. This represents 
only 1.3 percent of the total. While the Department hopes to discourage 
filings by individuals who are not totally disabled due to 
pneumoconiosis by providing more information about the process to the 
potential claimant population, the Department does not believe that a 
strict rule requiring the denial of all subsequent claims is 
appropriate in a program intended to compensate the victims of a 
progressive disease.
    (b) The Department's first proposal created a rebuttable 
presumption that the miner's physical condition had changed if the 
miner proved with new medical evidence one of the applicable conditions 
of entitlement. The regulation also included a provision allowing a 
miner to establish a serious deterioration in his physical condition 
whether or not the presumption was rebutted. The Department now 
believes that this regulatory presumption is unnecessary and would lead 
to considerable litigation. One commenter suggested its deletion. 
Accordingly, the revised proposal eliminates the presumption in favor 
of a simple threshold test: If the miner produces new evidence 
concerning his physical condition that establishes any of the elements 
of entitlement previously resolved against him, he is entitled to 
litigate his entitlement to benefits without regard to findings made in 
the earlier adjudication. The only exception is an issue resolved 
earlier by stipulation or by a failure to contest.
    The Department's subsequent claims provision gives full effect to 
the Fourth Circuit's decision in Lisa Lee Mines v. Director, OWCP, 86 
F.3d 1358 (4th Cir. 1996), cert. denied, 117 S.Ct. 763 (1997). In Lisa 
Lee, the en banc Fourth Circuit affirmed an award of benefits on a 
subsequent claim despite the operator's objections that the miner 
should have been awarded benefits in the prior claim

[[Page 54985]]

based on evidence of complicated pneumoconiosis. The court held that 
while the previous denial represented a final adjudication of the 
miner's condition at that time, that denial should not bar the miner 
from establishing his entitlement to benefits where his condition has 
clearly changed. The court's emphasis on accepting the correctness of 
the first adjudication, as well as the factual findings underlying that 
result, was echoed by Judge Niemeyer in his concurring opinion: ``This 
test avoids improper review of the first decision denying benefits.'' 
86 F.3d at 1365 (Niemeyer, J., concurring).
    (c) Several comments argue that the Department has incorrectly 
eliminated the requirement in the current regulations that a subsequent 
survivor's claim be automatically denied. That requirement is based on 
the common-sense premise that a miner's physical condition cannot 
change after his death, a premise with which the Department continues 
to agree. Thus, where the denial of a prior survivor's claim is based 
solely on the survivor's failure to establish that the miner suffered 
from pneumoconiosis, that the pneumoconiosis was caused by the miner's 
coal mine employment, or that the pneumoconiosis contributed to the 
miner's death, the Department agrees that a subsequent survivor's claim 
must be denied absent waiver by the liable party. Subsection (d)(3) is 
amended to clarify that intent. Where the earlier denial was based in 
whole or in part on a finding that is subject to change, however, for 
example, that the survivor had remarried, or a child has left school, 
it is inconsistent with the basic tenets of issue preclusion to 
prohibit that survivor from establishing entitlement to benefits. See 
62 FR 3352 (Jan. 22, 1997). Accordingly, the Department has eliminated 
the automatic denial of all subsequent survivor's claims, and replaced 
it with a more equitable assessment of the survivor's right to assert 
entitlement. One comment suggests that allowing waiver of the provision 
requiring denial of a survivor's claim is inconsistent with the 
Secretary of Labor's fiduciary responsibility toward the Black Lung 
Disability Trust Fund. The Department is fully cognizant of its duty to 
protect the fund against non-meritorious claims. In exercising its 
responsibilities, however, the Department also believes that it should 
not deny meritorious claims on technical legal grounds where, for 
example, a surviving spouse was unable to obtain legal representation 
in the earlier proceeding.
    (d) Several comments suggest that section 725.309 is impermissible 
in light of the one-year limitation for seeking reconsideration based 
on a change in conditions set forth in section 22 of the Longshore and 
Harbor Workers' Compensation Act, 33 U.S.C. 922. The Department 
disagrees. A section 22 reconsideration request asks that the existing 
denial be modified. A subsequent claim, however, does not allow 
reopening, or require relitigation, of the existing denial. Instead, it 
constitutes a new cause of action adjudicating the miner's entitlement 
at a later time. Thus, section 22 is not implicated by the subsequent 
claims provision. Moreover, even assuming that section 22 could be read 
to preclude subsequent claims under the Longshore and Harbor Workers' 
Compensation Act, the Department's authority to depart from the 
Longshore Act in order to administer the Black Lung Benefits Act is 
well established. Director, OWCP v. National Mines Corp., 554 F.2d 
1267, 1274 (4th Cir. 1977). The Department believes that a departure in 
this instance is fully justified. Unlike Longshore Act claims, the 
majority of which involve discrete, traumatic injuries, all claims 
filed under the Black Lung Benefits Act seek compensation for a latent, 
progressive disease. Moreover, the Supreme Court has construed the 
Longshore Act, in cases involving similar types of conditions, to allow 
the entry of nominal benefit awards which may be subject to later and 
repeated modification if the employee's condition worsens. Metropolitan 
Stevedore Co. v. Rambo, 117 S. Ct. 1953, 1963 (1997). Under the BLBA, 
however, entry of a nominal benefit award is not possible. Awards are 
permissible only in a case of total disability. Thus, the Department 
allows subsequent claims as an acknowledgment that the miner's 
condition may worsen.
    (e) One comment argues that claimants should not have to relitigate 
elements of entitlement that they established in earlier litigation. 
For example, if the miner established that he suffers from 
pneumoconiosis, but failed to prove that he was totally disabled, he 
should not be required to re-prove the existence of the disease in a 
subsequent claim. The Department disagrees. Just as the rules of issue 
preclusion would not allow a coal mine operator to rely on the miner's 
previous inability to prove one element of entitlement when the miner's 
condition with respect to another element has changed, those rules also 
prohibit a miner from relying on a previous finding which the opposing 
party did not have an opportunity to fully litigate. Where a miner's 
claim was denied, and the miner did not file an appeal, the party 
opposing entitlement had no opportunity to seek to overturn findings 
that were favorable to the miner. Consequently, those findings may not 
have any preclusive effect.
    (f) One comment suggests that the Department should clarify the 
date from which benefits are payable in subsequent claims. The date for 
commencing payment in subsequent claims is governed by the same rules 
applicable to any other claim, see 20 CFR 725.503, with the proviso 
that no benefits may be awarded for any period prior to the date on 
which the order denying the prior claim became final. This rule, 
spelled out in subsection (d)(5), gives effect to the language of the 
Fourth Circuit in Lisa Lee, that parties ``must accept the correctness 
of [the denial's] legal conclusion--[the claimant] was not eligible for 
benefits at that time--and that determination is as off-limits to 
criticism by the respondent as by the claimant.'' 86 F.3d at 1361.
    (g) One comment argues that the Department's treatment of 
subsequent claims violates section 413(d) of the Act, 30 U.S.C. 923(d), 
which allows working miners who have been determined eligible for 
benefits to receive those benefits only if they terminate their 
employment within one year after the determination becomes final. The 
Department disagrees. Section 725.504, to which only technical changes 
were proposed, see 62 FR 3341 (Jan. 22, 1997), implements the Act's 
working miner provisions. The regulation currently allows individuals 
whose claims are denied as a result of continued coal mine employment 
for more than one year to file new applications after that employment 
ends. This regulation was first promulgated (as Sec. 725.503A) in 1978, 
see 43 FR 36806 (Aug. 18, 1978), and the Department sees no need to 
revise it in light of the treatment afforded subsequent claims filed by 
individuals who do not continue to work. In neither case would the 
factfinder be permitted to look behind the denial of the earlier 
application. Moreover, miners who continue to work, and thus continue 
to be exposed to coal mine dust, present an even more compelling 
justification for being allowed to file subsequent claims than in the 
case of non-working miners.
20 CFR 725.310
    (a) The Department is re-proposing section 725.310 in order to make 
two specific changes. The first, set forth in the third and fourth 
sentences of

[[Page 54986]]

subsection (d), would allow the Department or responsible operator, as 
appropriate, to recoup amounts paid erroneously to a claimant where the 
claimant is at fault in incurring the overpayment. For example, an 
overpayment may occur if a claimant in award status fails to timely 
notify the Department or responsible operator of an event requiring a 
reduction in the amount of monthly benefits paid. Such events might 
include an award of state workers' compensation benefits, a child's 
withdrawal from an educational institution, or a surviving spouse's 
remarriage. The second change, set forth in the fifth and sixth 
sentences of subsection (d), conforms the language of the regulation to 
the Department's intention, set forth in the Department's earlier 
proposal at 62 FR 3354 (Jan. 22, 1997). By making this change, the 
Department recognizes that those claimants whose awards have become 
final have a heightened expectation that they will be able to keep the 
monthly benefits they receive. Thus, if a final award is terminated 
after modification, those benefits paid pursuant to the award before 
modification commenced are not subject to recoupment. By contrast, 
those claimants whose awards are modified to denials while still on 
appeal may be the subject of recoupment proceedings. The two sentences 
at the end of subsection (d), as originally proposed, have been further 
divided in order to clarify the regulation's meaning.
    (b) One comment objects that the revised regulation would prohibit 
an administrative law judge from denying a claimant's request for 
modification based on the claimant's failure to present any additional 
evidence. This comment is apparently based on the mistaken belief that 
the current regulations authorize such a denial. However, it is clear 
that any party has the right to seek modification under section 22 of 
the Longshore Act based ``merely on further reflection on the evidence 
initially submitted.'' O'Keeffe v. Aerojet-General Shipyards, Inc., 92 
S. Ct. 405, 407 (1971). The Department's current black lung regulations 
do not depart from this authority. Thus, current law prohibits an ALJ 
from denying a claimant's modification request based on a claimant's 
failure to submit new evidence. It is also well-established that a 
claimant who requests modification, whether or not he submits new 
evidence, is entitled to a de novo adjudication of his entitlement to 
benefits and, if requested, to a formal hearing before an 
administrative law judge. Robbins v. Cyprus Cumberland Coal Co., 146 
F.3d 425, 430 (6th Cir. 1998); Cunningham v. Island Creek Coal Co., 144 
F.3d 388, 390 (6th Cir. 1998). The revisions to subsection (c) merely 
restate these basic holdings. A similar comment suggests that the 
changes to subsection (c) create opportunities for claimants to file 
repeated requests for modification and thus avoid the one-year time 
limitation. Current law, however, does not permit a fact-finder to deny 
a modification request simply because a previous modification request 
has been denied. The one-year time limitation, in fact, commences to 
run anew when an earlier denial has become final. Subsection (c) does 
not alter the current state of the law.
    (c) Two comments argue that the district director should not be 
permitted to initiate modification in any case in which a coal mine 
operator is liable for the payment of benefits to the claimant. The 
Department does not agree that such a limitation would be appropriate. 
Although coal mine operators are generally able to represent their own 
interests effectively, and thus to request modification when they 
believe it appropriate, section 22 of the Longshore Act specifically 
authorizes the district director to initiate modification on his own 
initiative. The Department sees no need to modify this Longshore Act 
provision in order to properly administer the Black Lung Benefits Act. 
In addition, there exists a group of awards in which a coal mine 
operator is nominally liable for the payment of benefits but, because 
of bankruptcy, dissolution, or other events, can no longer pay 
benefits. In such cases, the Trust Fund, pursuant to 26 U.S.C. 9501(d), 
must assume responsibility for paying benefits. The limitation urged by 
this comment would effectively prohibit the Department from initiating 
modification in those cases, a limitation that the Department considers 
unacceptable. For example, the Department must remain free to adjust 
the terms of an award of benefits to reflect changes in the number and 
status of the claimant's dependents, such as when a previously eligible 
child becomes ineligible for augmented benefits. Another comment 
suggests that parties should be able to initiate modification 
proceedings before an administrative law judge. The Department 
disagrees. Section 22 explicitly requires that modification proceedings 
under the LHWCA be commenced before the district director, and there is 
no need to alter this provision to meet the needs of the black lung 
benefits program. In fact, filing a modification request before the 
district director allows him to administratively process the request, 
develop the appropriate evidence, and attempt an informal resolution of 
the claim. See Saginaw Mining Co. v. Mazzulli, 818 F.2d 1278, 1282 (6th 
Cir.1987) (discussing the policy reasons supporting the regulation 
requiring modification proceedings to be commenced before the district 
director).
    (d) The Department has extensively revised Sec. 725.414 in order to 
define more precisely the quantitative limits on documentary medical 
evidence that the parties may submit. See explanation to Sec. 725.414. 
Subsection (b) of Sec. 725.310, which limits the amount of additional 
documentary medical evidence that parties may submit in cases involving 
requests for modification, contained language similar to the language 
deleted from Sec. 725.414. In order to clarify the amount of evidence 
admissible in a modification case, the Department has made a 
corresponding change to subsection (b). Each party will be entitled to 
submit one additional chest X-ray interpretation, pulmonary function 
test, arterial blood gas study, and medical report. The opposing party 
may introduce one opposing interpretation of each objective test, in 
accordance with the rules set forth in Sec. 725.414. Finally, the party 
that originally offered the evidence may seek to rehabilitate its 
evidence by introducing an additional statement from the physician who 
administered the test.

Subpart D

20 CFR 725.351
    Section 725.351 was not among the provisions which the Department 
opened for comment in its previous notice of proposed rulemaking, 62 FR 
3341 (Jan. 22, 1997), and the Department did not receive any comments 
specifically directed to this section. In the course of reviewing the 
procedures to be used in the identification and notification of 
potentially liable operators, however, the Department has identified 
one aspect of this regulation which might benefit from change. The 
Department's proposal requires the submission to the district director 
of all evidence relevant to the identification of the liable 
responsible operator. Secs. 725.408, 725.414(b). The Department must 
have access to this evidence while a claim is pending before the 
district director because it will be unable to identify additional 
responsible operators after a case is referred to the Office of 
Administrative Law Judges, Sec. 725.407(d). It will therefore be the

[[Page 54987]]

district director's responsibility to develop the evidence necessary to 
meet the Director's evidentiary burden under the responsible operator 
regulations, Subpart G of Part 725.
    In order to allow district directors to exercise their 
responsibilities more efficiently, and in a manner which does not 
unduly delay the adjudication of a claimant's entitlement, the 
Department proposes to eliminate the requirement that district 
directors obtain approval from the Director, OWCP, prior to the 
issuance and enforcement of subpoenas duces tecum. The authority to 
issue subpoenas requiring the production of documents is a well-
recognized investigative tool of administrative agencies, see Comment, 
``Administrative Subpoenas for Private Financial Records: What 
Protection for Privacy does the Fourth Amendment Afford?,'' 1996 Wisc. 
L. Rev. 1075, 1076-77 (1996), and the Department believes that the 
current additional layer of internal review is unnecessary. Instead, 
the Department fully expects that the district directors, working in 
cooperation with the appropriate officials of the Office of the 
Solicitor, will issue subpoenas that comply with the standards 
established by the Supreme Court in United States v. Morton Salt Co., 
338 U.S. 632, 652 (1950). Those standards require that the information 
sought must be relevant to the district director's investigation and 
the subpoena must not be ``too indefinite.'' The latter requirement 
ensures that the district director's request not be excessively 
burdensome, i.e., that compliance does not threaten the normal 
operation of the recipient's business. See EEOC v. Bay Shipbuilding 
Corp., 668 F.2d 304, 313 (7th Cir. 1981).
20 CFR 725.367
    (a) Several comments urge the Department to allow successful 
claimants' attorneys to collect reasonable fees for all necessary work 
they perform in a case rather than only the work performed after the 
liable operator first contested the claimant's eligibility or the fund 
first denied the claim. The Department agrees that such a change is 
appropriate. Since the revised version of section 725.367 was proposed 
on January 22, 1997, the Department has spent considerable time 
weighing how to adequately compensate claimants' attorneys under the 
Black Lung Benefits Act. The issue was raised in part by the Benefits 
Review Board's June 30, 1997 decision in Jackson v. Jewell Ridge Coal 
Corp., 21 Black Lung Rep. (MB) 1-27 (en banc). In Jackson, the Board, 
by a 3-2 majority, held that successful claimants' attorneys in black 
lung cases are entitled to fees for all the work they perform, 
regardless of whether it is performed before or after the employer 
controverts the claimant's entitlement. The Fourth Circuit subsequently 
affirmed the Board's decision but disavowed its reasoning. Clinchfield 
Coal Co. v. Harris, 149 F.3d 407 (4th Cir. 1998). Faced with three 
seemingly reasonable interpretations of the statutory language and 
regulations, the Fourth Circuit deferred to the existing interpretation 
of the Director, Office of Workers' Compensation Programs. Under that 
interpretation, a claimant's attorney's fees are limited to those 
services performed after the agency's initial denial of the claim or 
the operator's rejection of the agency's initial approval. The court 
noted that the Director's interpretation was based on the agency's 
reasonable identification of the point in time at which a claimant 
would have reason to seek the assistance of an attorney. 149 F.3d at 
310.
    The evidentiary limitations now proposed by the Department, 
however, significantly alter the circumstances under which a claimant 
may be expected to seek representation. For example, although the 
Department now proposes the elimination of the requirement in the 
initial notice of proposed rulemaking that all medical evidence be 
submitted while a case is pending before the district director, these 
proposed regulations nevertheless still limit the amount of evidence 
each party may submit. Attorneys could play an important role in 
ensuring that this evidence, including evidence submitted before the 
Department's initial approval or denial of the claim for benefits, 
complies with the Department's quality standards and effectively 
presents the claimant's case. In addition, the Department is proposing 
significant changes in connection with the complete pulmonary 
evaluation afforded claimants under Sec. 413(b) of the Act. As detailed 
in the explanation of these changes at Sec. 725.406, the Department 
intends to send to the claimant a copy of the results of the objective 
tests obtained in the Department's evaluation, so that the claimant may 
in turn give those results to his treating physician. Obviously, the 
choice of whether or not to submit a report from that physician is 
important, in light of the regulations' evidentiary limitations. The 
Department intends to recommend that claimants seek legal advice before 
making that choice.
    In light of the significant changes proposed by the Department, the 
commenters' suggestion is well-taken. Allowing successful attorneys to 
collect reasonable fees for all of the necessary work they perform, 
rather than only the work performed after creation of an adversarial 
relationship, hopefully will encourage early attorney involvement in 
these cases. Because such involvement can only improve the quality of 
evidence submitted, and thus the quality of decision-making in all 
claims for benefits, the Department proposes to amend section 725.367 
to accomplish this result. Although the creation of an adversarial 
relationship and the ultimately successful prosecution of a claim are 
still necessary to trigger employer or fund liability for attorney's 
fees, the date on which the adversarial relationship commenced will no 
longer serve as the starting point for such liability.
    (b) One comment suggests that lay representatives should be 
entitled to collect fees from responsible coal mine operators or the 
fund. The Department explained in 1978, when it rejected the same 
suggestion, that the statute does not require operators to pay the fees 
of representatives who are not attorneys. 43 FR 36789 (Aug. 18, 1978). 
It is the Department's intention in this regulation to make the trust 
fund's attorney's fee liability coextensive with a liable operator's, 
62 FR 3354 (Jan. 22, 1997).
    (c) One comment suggests that the Department erred in preferring 
the Third Circuit's decision in Bethenergy Mines v. Director, OWCP, 854 
F.2d 632 (3d Cir. 1988) over the Sixth Circuit's decisions in Director, 
OWCP v. Bivens, 757 F.2d 781 (6th Cir. 1985) and Director, OWCP v. 
Poyner, 810 F.2d 99 (6th Cir. 1987). The Department's proposal, 
however, reflects no such preference. Both Bivens and Poyner stand for 
the proposition that the fund is liable for attorney's fees only when 
the Director, OWCP, unsuccessfully contests the claimant's entitlement 
to benefits. In Bethenergy, the Third Circuit held that a coal mine 
operator became liable for the payment of attorney's fees when it 
failed to accept liability for the claimant's entitlement within 30 
days of the Department's initial finding that the claimant was not 
eligible for benefits. The Department's proposal is consistent with all 
three decisions. As in Poyner and Bivens, the regulations allow fees to 
be awarded against the trust fund only if the Department has denied the 
claimant's eligibility. In addition, the revisions follow Bethenergy in 
imposing liability on employers based either on their failure to 
respond to the Department's initial finding or their contest of it, 
whether or not the Department finds that the claimant is eligible for 
benefits.

[[Page 54988]]

In each case, the proposal allows the responsible party time to collect 
and evaluate medical evidence before determining whether to create the 
type of adversarial relationship that would result in liability for 
attorney's fees if the claimant ultimately proves successful.
    (d) One comment states that the Department has ignored Supreme 
Court case law governing attorney's fee liability. The comment contains 
no citation to specific precedent and no further explanation. This 
sparse comment affords the Department an insufficient basis for 
altering its original proposal.

Subpart E

20 CFR 725.403
    Section 725.403 was not among the regulations which the Department 
opened for comment in its previous notice of proposed rulemaking, 62 FR 
3341 (Jan. 22, 1997). The regulation is applicable only to claims filed 
under section 415 of the Black Lung Benefits Act, 30 U.S.C. 925, 
between July 1 and December 31, 1973. Such claims were filed with the 
Department of Health, Education, and Welfare, but administered by the 
Department of Labor. Section 413(c) of the Act, 30 U.S.C. 923(c), 
provides that no benefits could be paid on any claim filed on or before 
December 31, 1973 unless the miner filed a claim for benefits under the 
applicable state workers' compensation law. Section 725.403 implemented 
this prohibition for purposes of section 415 claims. Because the 
deadline for filing section 415 claims expired over 25 years ago, the 
Department proposes to delete section 725.403. The Department does not 
intend to alter the rules applicable to any section 415 claim that may 
still be in litigation, and section 725.403 will remain applicable to 
any such claim. Parties interested in reviewing section 725.403 may 
consult earlier editions of the Code of Federal Regulations or the 
Federal Register in which the regulation was originally published. The 
Department invites comment on whether section 725.403 should be 
retained in the Code of Federal Regulations.
20 CFR 725.406
    (a) The Department received a number of comments, from coal mine 
operators and miners alike, criticizing its initial proposal for 
providing claimants with the complete pulmonary evaluation required by 
30 U.S.C. 923(b). Section 413(b) of the Act, 30 U.S.C. 923(b), requires 
the Department to afford each miner who applies for benefits an 
opportunity to substantiate his claim by means of a complete pulmonary 
evaluation. Under the Department's original proposal, a miner could 
either be examined by a physician selected by the Department or by a 
physician of his choosing. If the miner selected the physician, 
however, the report of that examination would count as one of the two 
pulmonary evaluations the miner was entitled to submit into evidence. 
Sec. 725.414.
    One comment suggested that the Department's proposal, in 
combination with the proposed limits on the quantity of documentary 
medical evidence each party may submit, would interfere with a miner's 
statutory right to have a complete pulmonary evaluation performed by a 
physician of his choice. Many miners, the commenter argued, would make 
a selection of the physician to perform the examination without the 
benefit of counsel, and would be able to submit only one additional 
medical report when they did secure counsel. Another comment suggested 
that the responsible operator be permitted to choose the physician, 
while a third comment suggested that the Department take steps to 
ensure that the facilities and physicians it uses to perform the 
complete pulmonary evaluation are impartial and of the highest quality.
    The Department does not agree that the Black Lung Benefits Act 
guarantees claimants the right to have the Department pay for a 
pulmonary evaluation performed by a physician selected by the claimant. 
The statute obligates the Department only to provide a miner who 
applies for benefits ``an opportunity to substantiate his or her claim 
by means of a complete pulmonary evaluation.'' 30 U.S.C. 923(b). In the 
past, when the regulations allowed parties to submit unlimited amounts 
of evidence in claims, the Department did allow miners to request a 
specific physician or facility to perform the complete pulmonary 
evaluation and to have the examination and/or testing done there as 
long as the miner's request was approved by the district director. 20 
CFR 725.406(a).
    The Department's proposal, however, now sets forth limitations on 
the quantity of evidence each side may submit. As a result, allowing a 
claimant to choose the physician to perform the initial pulmonary 
evaluation without the benefit of counsel could have an adverse effect 
on his case. Such a claimant might not obtain the best quality report, 
and would be able to submit only one more. The Department has 
considered a number of options to address this problem, and believes 
that the purposes of the Black Lung Benefits Act will best be served if 
the complete pulmonary evaluation authorized by 30 U.S.C. 923(b) is 
performed by an impartial and highly qualified physician, a solution 
proposed by one of the commenters. The Department will therefore 
maintain a list of physicians and facilities authorized to perform 
pulmonary evaluations. The Department will provide each miner with a 
list of authorized physicians and facilities in the state of the 
miner's residence as well as the states contiguous to that state. For 
example, a miner living in Ohio may choose from among authorized 
physicians and facilities in Ohio, Pennsylvania, West Virginia, 
Kentucky, Indiana, and Michigan. The Department will further inform the 
miner that the designated responsible operator may require him to 
travel 100 miles, or a distance comparable to the distance traveled for 
the section 413(b) examination, whichever is greater, in order to 
submit to additional medical examinations and testing. See discussion 
accompanying Sec. 725.414.
    Another suggestion, exempting the complete pulmonary evaluation 
performed by a doctor of the claimant's choosing from the evidentiary 
limitations, would be unfair to the party opposing entitlement. In that 
case, the claimant would effectively have the opportunity to submit 
three medical opinions, while the operator or fund would be limited to 
two. The Department also does not believe that it would be appropriate, 
as one commenter suggests, to allow the responsible operator to select 
the physician or facility. The purpose of the section 413(b) 
examination is to provide the claimant with an opportunity to have his 
physical condition assessed in a non-adversarial setting in an attempt 
to substantiate his application for benefits.
    Using a smaller group of physicians to perform the complete 
pulmonary evaluation will also allow the Department to meet one of its 
primary goals in the initial processing stage: providing applicants 
with the best respiratory and pulmonary evaluation possible. A thorough 
examination, performed in compliance with the applicable quality 
standards, will provide each claimant with a realistic appraisal of his 
condition and will also provide a sound evidentiary basis for the 
district director's initial finding. Developing the best quality 
medical evidence possible will benefit all the parties. The Department 
intends therefore to develop more rigorous standards for physicians who 
perform complete pulmonary evaluations at the

[[Page 54989]]

Department's request. These standards may include: (1) The physician 
should be qualified in internal or pulmonary medicine so that he is 
better able to analyze respiratory and pulmonary conditions (a request 
of one commenter); (2) the facility must be able to perform each of the 
tests that the Department considers appropriate to an inquiry into a 
miner's respiratory or pulmonary condition, see Sec. 718.104; (3) the 
physician must be able to schedule the claimant promptly for a 
pulmonary evaluation; (4) the physician must be able to produce a 
timely report, which includes a comprehensive narrative addressing each 
of the elements of entitlement; and (5) the physician must make himself 
available to answer follow-up questions from the district director, and 
must be willing to explain and defend his conclusions upon questioning 
by opposing parties. The Department specifically seeks comment as to 
these and any other standards which may be used to select physicians 
and facilities to perform complete pulmonary evaluations. The 
Department intends to consider all suggestions carefully, with the goal 
of improving the quality and credibility of the ensuing reports. A list 
of the standards ultimately selected will be included in the Black Lung 
Program Manual prepared and used by the Department in its 
administration of the program. This document is open to the public and 
is available in each district office. Finally, in order to ensure a 
pool of physicians who meet these high standards, the Department 
intends to re-evaluate the fees that it pays physicians, both to 
perform and explain the results of the pulmonary evaluation and to 
participate in depositions and/or other forms of cross-examination. The 
Department intends to provide physicians with compensation at the rates 
prevailing in their communities for performing similar services. 
Information available to the Department, for example, indicates that, 
as of June, 1999, the West Virginia Occupational Pneumoconiosis Board 
paid facilities $270.43 per claimant for performing pulmonary testing, 
and paid physicians $300 per hour for testifying before administrative 
law judges. The survey of clinics and facilities which the Department 
will conduct while this notice is open for public comment will also 
solicit information on the fees needed to attract highly qualified 
physicians to perform the testing and evaluation required by the 
Department.
    The Department recognizes that this proposed revision would 
significantly change the manner in which it administers the complete 
pulmonary evaluation required by the Black Lung Benefits Act. By 
raising the quality of these evaluations, the Department hopes to 
provide each miner with the best possible medical assessment of his 
respiratory and pulmonary condition early in the processing of his 
application. Where a miner meets the Department's eligibility 
standards, the higher quality evidence produced by these evaluations 
will further Congress's intent that miners be given an opportunity to 
substantiate their claims. In the case of miners who do not meet those 
standards, the increased credibility of the initial pulmonary 
evaluation may reduce litigation before the Office of Administrative 
Law Judges, the Benefits Review Board, and the federal appellate 
courts.
    The Department is aware of difficulties that claimants may 
encounter in generating legally sufficient medical evidence in support 
of their applications. Two commenters state that claimants must be 
given the right to select the physician who performs the complete 
pulmonary evaluation because they often cannot afford to obtain their 
own medical evidence. Developing medical evidence relevant to the 
evaluation of a claimant's respiratory and pulmonary condition, 
including the objective medical testing required by the Department's 
quality standards, Sec. 718.104, can involve costs that are beyond the 
reach of some claimants. Accordingly, the Department proposes to add a 
provision (subsection (d)) requiring the district director to inform 
the claimant that he may have the results of the Department's initial 
objective testing sent to his treating physician for use in the 
preparation of a medical report that complies with the Department's 
quality standards. Such objective test results would include a chest X-
ray reading, Sec. 718.104(a)(5), the results of a pulmonary function 
test, Sec. 718.104(a)(1), and the results of an electrocardiogram, 
blood gas studies, and other blood analyses, if conducted, 
Sec. 718.104(b). In addition, the district director will inform the 
claimant that, if submitted, a report from his treating physician will 
count as one of the two reports that he is entitled to submit under 
Sec. 725.414, and that he may wish to seek advice, from a lawyer or 
other qualified representative, before requesting his treating 
physician to supply such a report. By providing the miner's treating 
physician with the results of objective testing that the miner might 
not otherwise be able to obtain, the Department will assist claimants 
who may not be able to afford to pay for a complete pulmonary 
evaluation on their own.
    (b) Two commenters state that the Department should impose 
limitations on the district director's ability to clarify ``unresolved 
medical issues'' under subsection (e). Both suggest that the district 
director should be required to ask the physician who performed the 
complete pulmonary evaluation whether he is aware of unresolved issues, 
and both commenters also object to any attempt on the part of the 
district director to question the credibility of the medical evidence 
obtained as part of the complete pulmonary evaluation. The Department 
does not agree. District directors must be allowed considerable 
discretion in fulfilling their responsibility to develop the medical 
evidence relevant to the claimant's respiratory and pulmonary 
condition. They must develop complete evidence of the best possible 
quality to allow them an adequate evidentiary basis to determine 
whether the claimant is initially entitled to benefits. Limiting 
district director discretion in the manner suggested by the commenters 
could result in evaluating a miner's entitlement with medical evidence 
that is neither complete nor credible. If the district director selects 
a different physician or facility to re-examine the miner under 
subsection (e), however, he will be limited to selecting that physician 
or facility from the same list available to the claimant. The district 
director may use a physician who is not on the approved list only under 
subsection (c), which allows the district director to seek a review of 
objective testing. For example, this provision allows a district 
director to have a chest X-ray reread by a qualified radiologist who 
meets the requirements for a ``B'' reader, see 20 CFR 
718.202(a)(1)(ii)(E), but who is not qualified to perform a complete 
pulmonary evaluation. The Department also notes that the district 
director's use of the authority granted by subsection (e) should 
decrease under the revisions proposed in this notice. Under this 
proposal, the district director will be seeking an initial evaluation 
from a qualified physician with the ability to perform a complete 
evaluation in a timely manner, and likely will not have to seek a miner 
reexamination as provided by subsection (e). Finally, the Department 
has added language to subsection (e) to clarify that any additional 
report obtained by the district director shall not count against the 
limits on medical evidence imposed on parties other than the Director 
by Sec. 725.414. Instead, where the district director requests merely 
that the

[[Page 54990]]

physician supplement his original report, the supplement shall be 
considered a part of that original report. Where the district director 
orders additional tests, however, the previous tests may not be 
admitted into the record at the hearing.
    (c) Two commenters object to the contents of subsection (d), as 
originally proposed, now in subsection (c), which outlines the 
Department's obligation to evaluate each examination and objective test 
performed as part of the Department's section 413(b) pulmonary 
evaluation. The subsection allows the Department to determine whether 
all parts of the section 413(b) examination are in substantial 
compliance with the Department's quality standards. The Department's 
original proposal authorized the district director to seek additional 
tests where substantial compliance was lacking, except where the 
deficiencies in the testing were the result of a lack of effort on the 
part of the miner. The commenters argue that a miner whose test is 
considered invalid due to a lack of effort should be given an 
additional opportunity to obtain satisfactory results. The Department 
agrees. A number of factors may influence a miner's lack of effort on 
objective testing, including a failure to fully understand the test 
procedures. Accordingly, the Department proposes to revise this 
subsection to afford such miners one additional opportunity to produce 
results in compliance with the quality standards.
    (d) Several comments argue that the Department should not provide 
complete pulmonary evaluations if the claim represents a request for 
modification or a subsequent claim. The Department does not provide an 
additional pulmonary evaluation if a claim is filed within one year of 
the date on which the claimant's previous application was finally 
denied. In such cases, the application is treated as a request for 
modification, see Fireman's Fund Insurance Co. v. Bergeron, 493 F.2d 
545, 547 (5th Cir.1974), and has the effect of extending the processing 
and adjudication of the original claim. The Department has already 
satisfied its responsibilities under section 413(b) with respect to 
that claim, and does not provide an additional evaluation. By contrast, 
a subsequent claim is an entirely new assertion of entitlement to 
benefits, which covers a later period of time and is limited only by 
the requirement that the parties must accept as final the outcome of 
any earlier claims filed by the claimant. In such a case, the 
Department believes that section 413(b) requires that the claimant 
receive a new evaluation of his respiratory and pulmonary condition.
    (e) The Department has made several technical changes to the 
language of proposed subsection (e) to make that provision easier to 
read.
20 CFR 725.407
    (a) The Department has proposed to revise section 725.409 to 
require administrative law judges to remand cases in which they reverse 
a district director's determination that a claim should be denied by 
reason of abandonment. Because these cases will be returned to the 
district director for further administrative processing, the Department 
has revised section 725.407(d) to ensure that the district director 
retains the authority to notify additional potentially liable operators 
under such circumstances. Absent this revision, subsection (d) could 
have been read to prohibit further notification of operators on remand.
    (b) One comment suggests that the Department provide guidelines 
limiting the circumstances under which it can identify more than one 
potentially liable operator in a claim. The commenter questions the 
Department's need to name multiple potentially liable operators in 
every case, citing the increased litigation costs which will be 
incurred by the operators named. The Department does not intend to name 
multiple operators in every case. The Department also does not believe, 
however, that guidelines are appropriate. A dispute over the identity 
of a liable responsible operator may present a variety of issues, such 
as the financial assets of a miner's employers, whether the claimant 
was employed as ``miner,'' and the consequences of various successor 
operator transactions. The Department's purpose is to ensure that 
liability for a miner's black lung benefits is borne by a miner's 
previous employer to the maximum extent possible. In light of the wide 
range of potential issues surrounding the naming of a responsible 
operator, the Department does not believe that guidelines are feasible.
    (c) One comment supports this proposal, provided that when multiple 
potentially liable operators are named, they are collectively subject 
to the same limits on the quantity of documentary medical evidence as a 
single operator may submit. The Department has retained and applied the 
same limitation on the amount of documentary medical evidence that may 
be submitted in cases involving either one or multiple potentially 
liable operators. Sec. 725.414(a)(3)(i), (ii). Two other comments offer 
similar support for the Department's proposal.
20 CFR 725.408
    (a) Several comments suggest that the time allowed for submitting 
evidence regarding the identity of the responsible operator should be 
expanded, and that the Department should incorporate some provision for 
submitting later discovered evidence. Another comment similarly argues 
that the time frames in the proposed rules are unrealistic in light of 
the difficulties in obtaining necessary evidence. The comment points 
out that by the time miners file applications for benefits, their 
former employers may no longer be in operation, and necessary personnel 
records may have been lost, destroyed, or put into storage. At the 
Washington, D.C. hearing, representatives of the insurance and claims 
servicing industries suggested that the Department needed to provide 
more time, perhaps up to a year, within which to develop this evidence. 
Transcript, Hearing on Proposed Changes to the Black Lung Program 
Regulations (July 22, 1997), pp. 190 (testimony of Margo Hoovel), 193 
(testimony of Betsy Sellers).
    The Department appreciates the difficulty which may be faced by the 
insurance and claims servicing industries in developing employment 
information. Accordingly, the Department has extended the time under 
Sec. 725.408 within which an operator must submit evidence from 60 days 
to 90 days following its receipt of notice of a claim pursuant to 
Sec. 725.407. Because the Department hopes to streamline the processing 
and adjudication of claims for benefits under the Act, the Department 
declines to make this period longer. A longer time period could result 
in significant delays in the adjudication of an applicant's entitlement 
to benefits. Moreover, many applications for benefits under the Act are 
filed within a relatively short period of time after the miner leaves 
coal mine employment. In fact, one comment received on behalf of 
several coal companies indicated that the 60-day time limitation was 
inadequate only in the minority of cases. Finally, in cases in which 
even the 90-day period may not afford a potentially liable operator 
sufficient time to obtain employment evidence, this time period may be 
extended for good cause pursuant to the general authority for 
extensions of time contained in proposed Sec. 725.423.
    (b) One comment objects to the Department's proposal on the ground 
that it would require operator development of evidence in non-

[[Page 54991]]

meritorious claims. The Department recognizes that coal mine operators 
may currently ignore most claims of which they receive notice, because 
many claimants do not proceed after receiving an initial denial of 
benefits. The Department has been severely handicapped by this 
practice, however, because it did not know operators' positions with 
respect to their potential liability for benefits in cases that did 
proceed, and the Department was therefore unable to develop responsive 
evidence. See 62 FR 3355-3356 (Jan. 22, 1997) (discussing the proposed 
revision of section 725.408 set forth in the Department's previous 
notice of proposed rulemaking). The Department does not believe that it 
places an undue burden on potentially liable operators to request 
certain information at this early stage. The proposal would require 
them to submit only information regarding their status as a coal mine 
operator, their employment of the miner and their financial capacity to 
pay benefits. Contrary to the understanding of some commenters, 
information relevant to the identity of other potentially liable 
responsible operators need not be developed until after the issuance of 
an initial finding of the claimant's eligibility or, if the district 
director finds that the claimant is not eligible for benefits, after 
the claimant indicates his dissatisfaction with that result. 
Consequently, the Department does not believe that requiring the 
submission of a limited amount of evidence in every case would 
significantly increase the burden on coal mine operators.
    (c) Several comments suggest that the Department provide a 
bifurcated hearing process to allow administrative law judges to 
resolve responsible operator issues prior to hearing the merits of 
entitlement. Although a bifurcated hearing would produce initial fact-
finding on the issue, the Department cannot eliminate the possibility 
that an aggrieved party might appeal the ALJ's decision to the Benefits 
Review Board and the appropriate court of appeals. If the regulations 
authorized an immediate appeal of the responsible operator issue, there 
would be a substantial likelihood of significant delay in the 
adjudication of the claimant's entitlement. If, on the other hand, coal 
mine operators could appeal their responsible operator status only 
after an award of benefits, the proposed suggestion would not 
accomplish its purpose; the Department would still be required to keep 
each potentially liable operator as a party to the case to protect the 
Black Lung Disability Trust Fund in the event the liability 
determination was overturned on appeal. The Department thus cannot 
fashion a process which bifurcates the issues of liability and 
entitlement, but nevertheless serves the Department's purpose of 
ensuring a prompt adjudication of claimant entitlement involving all 
potentially liable parties.
20 CFR 725.409
    (a) Several comments argue that the penalty for a claimant's 
failure to attend an informal conference without good cause, denial of 
the claim, is disproportionately harsh in comparison with the penalty 
imposed on an employer, waiver of the right to contest potential 
liability for an award. See Sec. 725.416(c). The Department agrees that 
the proposed regulation may impose severe consequences on a claimant 
who fails to attend a scheduled informal conference without good cause. 
Unlike the situation involving potentially liable operators, however, 
the statute constrains the Department's ability to impose lesser 
sanctions on claimants. Requiring an operator to concede one of the 
issues being contested, such as its status as a responsible operator, 
limits that operator's ability to contest the claim without entirely 
foreclosing it. Requiring a claimant to concede an issue, however, is 
usually tantamount to a denial of benefits. The Department believes 
that a denial by reason of abandonment represents the only valid 
sanction for a claimant's failure to participate at each stage of the 
claims adjudication process, including the informal conference.
    The Department could adjust the disproportionate effect of the 
penalty by imposing an equally severe sanction on an employer who fails 
to attend an informal conference without good cause. In general, 
however, the Department would prefer not to finally resolve a claim for 
benefits based solely on a party's failure to attend an informal 
conference. Where such a sanction is the only one available, as is the 
case with claimants, the Department has no alternative. In order to 
mitigate the disparity, however, and in recognition of the fact that, 
as several commenters point out, most claimants are unrepresented at 
this point in the proceedings, the Department proposes to add a new 
subsection, requiring the district director to affirmatively request 
that the claimant explain why he failed to attend the conference, and 
to evaluate the claimant's explanation in light of the claimant's age, 
education, and health as well as the distance of the conference from 
his residence. Elsewhere in this proposal, see proposed revisions to 
Sec. 725.416, the Department has further required the district director 
to explain why he believes that an informal conference would assist in 
the voluntary resolution of issues in the case. The Department hopes 
that these revisions will lead to a better understanding of the 
informal conference process on the part of all parties, and that 
unjustified absences will be unusual.
    (b) One comment urges that, in any case in which an administrative 
law judge finds that the district director erred in denying the claim 
by reason of abandonment, he should have the discretion to proceed to 
adjudicate the merits of the claimant's entitlement. The Department 
does not agree. A claim may be denied by reason of abandonment at 
several stages during the initial processing of that claim. For 
example, a claimant's unjustified failure to attend the required 
medical examination scheduled by the Department may result in a denial 
by reason of abandonment. At this stage, none of the evidence regarding 
issues such as potential operator liability would be in the 
administrative record, and it would be inappropriate for the 
administrative law judge to adjudicate the claim on its merits. Even 
when administrative processing is substantially complete before 
issuance of a denial by reason of abandonment, such as when a claimant 
refuses to attend an informal conference, a conference may nevertheless 
be appropriate. For example, the conference provides the district 
director with a final opportunity to question the claimant concerning 
his coal mine employment, and thus to ensure that all potentially 
liable operators are identified before the case is referred for a 
formal hearing on the merits. A conference also allows the district 
director to ensure that the claimant understands the requirements for 
establishing his entitlement to benefits. Consequently, the Department 
has added a sentence to subsection (c) to clarify the intent of the 
regulation and require that an administrative law judge remand a claim 
to a district director even if he finds that the district director 
erred in denying the claim by reason of abandonment.
    (c) One comment suggests that the proposal will result in the 
filing of additional claims by applicants whose previous claims were 
denied by reason of abandonment. The Department does not believe that 
authorizing the dismissal of a claim based on the applicant's unexcused 
failure to attend an informal conference will result in a significant 
number of additional filings. In the Department's experience, the vast 
majority of informal conferences are attended by representatives of 
both parties. As a result, the authority set

[[Page 54992]]

forth in this section is not apt to be invoked frequently. The 
Department also believes, however, that the consequences of a 
claimant's unexcused failure to attend should be clearly explained. The 
commenter also states that the dismissal of a claim imposes additional 
burdens and costs on parties to the claim other than the claimant. 
Although this observation may be true when a claimant does file an 
additional claim, or further litigates the abandonment finding, the 
failure of one party to attend an informal conference also imposes 
significant costs on the parties who did attend and on the Department, 
whose officials scheduled the conference and set aside the time 
necessary to hold it. In order to reduce the possibility of needlessly 
incurring these costs, the Department has proposed a sanction which 
should ensure that all parties attend an informal conference that has 
been scheduled in accordance with Sec. 725.416.
20 CFR 725.411
    (a) Although the Department is not proposing any further revision 
to Sec. 725.411, the Department wants interested parties to be aware 
that it intends to substantially rewrite the documents it uses in 
connection with an initial finding under Sec. 725.411, in particular to 
assist unrepresented claimants who are denied benefits. The new letter 
will contain a detailed explanation, in clear language, of why the 
evidence developed up to that point fails to establish all of the 
necessary elements of entitlement. Revision of the initial finding 
letter is an important part of the Department's commitment to improve 
the quality of the information it provides parties to the adjudication 
of claims for black lung benefits. The Department hopes that this 
improved communication will accomplish two goals: (1) to make the 
processing of black lung claims by the Department's district offices 
easier to understand; and (2) to give claimants a clear picture of the 
medical evidence developed in connection with their claims so that they 
are able to make more informed decisions as to how to proceed.
    (b)(i) Four comments express concern that subsection (a) prohibits 
treating a claimant's request for a hearing before an administrative 
law judge as a ``request for further adjudication'' if made within one 
year of the denial of a claim. The Department disagrees with this 
interpretation. The proposed regulation states explicitly that any 
expression of an intent to pursue a denied claim amounts to a ``request 
for further adjudication.'' An untimely hearing request would 
constitute a valid request for further adjudication by the district 
director.
    (ii) Three comments also state that a claimant who responds to a 
denial by requesting a hearing should receive one. Paragraph (a) only 
precludes the claimant from receiving the hearing immediately as the 
next stage in the adjudication of the claim. Having invoked a 
continuation of the claims process by requesting ``further 
adjudication,'' the claimant must wait for the district director to 
issue a proposed decision and order. Once the district director issues 
such a decision, the claimant may pursue any available remedies, 
including a hearing, with an appropriate request. By invalidating 
premature hearing requests, the Department intends to ensure the 
orderly adjudication of claims through each sequential step in the 
process, and avoid the uncertainty engendered by case law such as Plesh 
v. Director, OWCP, 71 F.3d 103 (3d Cir. 1995) (holding that claimant's 
hearing request made before district director completed processing of 
claim and issued decision must nevertheless be honored after decision 
was issued, although not renewed by claimant). The Department has 
therefore made explicit that a hearing request is effective only when 
made within 30 days after the district director issues a proposed 
decision and order under Sec. 725.419(a) or a denial by reason of 
abandonment under Sec. 725.409(b). Any premature request will be 
ineffective as a request for a hearing before an administrative law 
judge.
    (c) One comment contends the one-year period for requesting further 
adjudication in subsection (a) represents an impermissible extension of 
the one-year period for seeking modification of a claim under 
Sec. 725.310 and Sec. 922 of the Longshore and Harbor Workers' 
Compensation Act (LHWCA), 33 U.S.C. 922, as incorporated into the Black 
Lung Benefits Act by 30 U.S.C. 932(a). The commenter contends a 
claimant would have one year under paragraph (a) to request further 
adjudication of a denied claim, and one additional year to request 
modification of the claim. This interpretation, in effect, treats the 
two types of proceedings as mutually exclusive. The Department rejects 
this contention because it misinterprets the operation of, and 
relationship between, Secs. 725.411 and 725.310.
    Under modification, a claimant who has been denied benefits has one 
year in which to reopen the denied claim. The generally recognized 
standard for invoking the modification process is an intent to pursue 
the claim. See generally Eifler v. Director, OWCP, 926 F.2d 663, 667 
(7th Cir. 1991). In its initial notice of proposed rulemaking, the 
Department explained at length that the one-year period for responding 
to a denial of benefits under Sec. 725.411 merely reflects an 
incorporation of the one-year period for requesting modification. 62 FR 
3356 (Jan. 22, 1997). By eliminating the hierarchy of response times in 
the current regulations, the Department has simplified the adjudication 
procedures for claimants. Under the current regulations, a claimant has 
30 days, 60 days or one year in which to pursue a claim after the 
denial, depending on the type of decision and the options available. 
Proposed Sec. 725.411 would replace this process with a single time 
period (one year) and a single action which the claimant may take: by 
indicating any intent to pursue the claim within one year, the claimant 
reopens the adjudication process and receives a new decision (a 
proposed decision and order) based on new evidence (if proffered) or 
reconsideration of the existing record. If the claimant is dissatisfied 
with that decision, (s)he may request a hearing before an 
administrative law judge. If, however, the claimant takes no action 
within one year of a denial, then the claim is finally denied and not 
subject to modification. The regulations specifically state that any 
submission by the claimant after the one-year time limit in 
Sec. 725.411(a)(1)(i) will be treated as an intent to file a subsequent 
claim. See Secs. 725.411(a)(1)(ii), 725.309. Consequently, Sec. 725.411 
does not violate the one-year modification period or expand the right 
of a claimant to reopen a denied claim.
    (d) One comment offered in connection with proposed Sec. 725.423 
recommends permitting extension of the one-year period for requesting 
further adjudication in paragraph (a)(1)(i). The Department addressed 
this idea in its initial notice of proposed rulemaking. 62 FR 3361 
(Jan. 22, 1997). The Department concluded that allowing an extension of 
the one-year period would not be appropriate because one year is an 
adequate response period, and any response within that period 
demonstrating an intent to pursue a claim is sufficient to reactivate 
the adjudication process. For those reasons, no change has been 
proposed in response to this comment.
20 CFR 725.414
    (a) Numerous commenters criticized the Department's initial 
proposal which required the parties to submit all documentary medical 
evidence to the district director in the absence of extraordinary 
circumstances. A number

[[Page 54993]]

of commenters observed that claimants often are unable to obtain legal 
representation until after a case is referred to the Office of 
Administrative Law Judges. Thus, under the initial proposal, a claimant 
would often be making critical evidentiary decisions without the 
benefit of counsel. These commenters also stated that a miner should 
not be required to undergo five medical examinations (the section 
413(b) pulmonary evaluation and the two examinations permitted each 
side) within the relatively short period from the date the claim is 
filed to the district director's conclusion of administrative 
processing. Other commenters stated that the Department's proposal 
would significantly increase operators' litigation costs by requiring 
them to develop medical evidence in all cases. Currently, operators 
have no need to develop medical evidence in cases in which the claimant 
does not take further action after the district director issues an 
initial denial of benefits. Statistics maintained by the Department 
indicate that in more than 60 percent of the black lung claims filed, 
adjudication ceases after a district director's decision.
    The Department agrees that the required submission of all 
documentary medical evidence to the district director should be revised 
in light of the many valid objections received. Accordingly, the 
Department proposes instead to retain the current process for 
submitting documentary medical evidence into the record. Under this 
proposal, parties may continue to submit documentary medical evidence 
to the district director in accordance with the schedule issued under 
Sec. 725.413. To the extent that those submissions do not reach the 
numerical limitations imposed on each side by Sec. 725.414, the parties 
may submit additional documentary medical evidence into the record up 
to 20 days before an ALJ hearing, and even thereafter, if good cause is 
shown. The only other limitation on the submission of documentary 
medical evidence to the administrative law judge is found in the 
current regulations. The Department proposes to add subsection (e) to 
the revised version of this section in order to retain the requirement, 
set forth in the Department's current regulations at 20 CFR 725.414(e), 
that parties may not withhold evidence they develop while a case is 
pending before the district director. Such evidence will be admissible 
in further proceedings only if the party establishes extraordinary 
circumstances or obtains the consent of the other parties to the claim. 
See Doss v. Director, OWCP, 53 F.3d 654, 658 (4th Cir. 1995).
    Although the Department now proposes to allow the submission of new 
documentary medical evidence while a case is pending before the Office 
of Administrative Law Judges, it has not altered the proposal with 
respect to the required submission to the district director of all 
evidence relating to potentially liable operators and the responsible 
operator. The Department explained in its previous notice of proposed 
rulemaking that this requirement is intended to provide the district 
director with all of the evidence relevant to the identification of the 
responsible operator liable for the payment of benefits, in the absence 
of extraordinary circumstances. 62 FR 3355-3356 (Jan. 22, 1997). The 
proposal was intended to accomodate two interests that may conflict in 
some cases: a claimant's interest in the prompt adjudication of his 
entitlement; and the Department's interest in protecting the Black Lung 
Disability Trust Fund from unwarranted liability. Under the 
Department's current regulations, the Director, OWCP, may seek to have 
a case remanded from the Office of Administrative Law Judges where 
evidence not previously submitted to the district director suggests 
that liability for a claim should be imposed on an operator that was 
not notified of its potential liability. Such remands necessarily delay 
the adjudication of the claimant's entitlement to benefits. Under the 
Department's proposed revision, the Director may not seek, and an 
Administrative Law Judge may not order, remand of a case to the 
district director's office in order to identify additional potentially 
liable operators. If the Department has failed to notify the correct 
operator of at least its potential liability, the Black Lung Disability 
Trust Fund will pay the claimant's benefits in the event of an award. 
The Department thus assumes the risk that its initial operator 
identification is flawed. This risk can be justified only if the 
Department is able to require the early submission of evidence relevant 
to the responsible operator issue.
    Under proposed Sec. 725.408, a potentially liable operator 
identified by the district director has 90 days from the date on which 
it is notified of that identification to submit evidence demonstrating 
that it does not meet the Sec. 725.494 definition of a potentially 
liable operator with respect to a claim. For example, a potentially 
liable operator may submit evidence demonstrating that it did not 
employ the miner for at least one year, or that it was not an operator 
for any period after June 30, 1973. Following the district director's 
issuance of an initial finding, and a decision by a party aggrieved by 
that finding to seek further review, the operator designated as the 
responsible operator must develop and submit any evidence needed to 
support a contention that it is not the responsible operator liable 
pursuant to Sec. 725.495 for the benefits payable to the claimant. This 
evidence, showing, for example, that a more recent employer should be 
liable for benefits, must be submitted to the district director in 
accordance with the schedule established under Sec. 725.413. An 
administrative law judge may admit additional evidence on any issue 
regarding either potentially liable operators or the responsible 
operator only if the party submitting the evidence demonstrates 
extraordinary circumstances justifying its admission. The Department 
has also proposed revising subsection (c) to extend the extraordinary 
circumstances exception to testimony regarding such issues by a witness 
whose identity was not disclosed to the district director.
    (b) Several commenters request that the Department further define a 
number of terms used in the initial proposal, such as ``rebuttal 
evidence,'' ``consultative report,'' and ``interpretive opinion.'' The 
Department agrees that some of the terms used in the proposal were 
ambiguous, and believes that the regulation would better serve all 
interested parties by describing the applicable evidentiary limitations 
in terms of the evidence needed to establish a claimant's entitlement 
to benefits under Secs. 718.202 and 718.204. Accordingly, the 
Department is proposing extensive revisions to this section to ensure 
that the intended evidentiary limitations are clearly defined. Each 
party may submit two chest X-ray interpretations (of the same X-ray or 
two different X-rays, at the option of the party), the results of two 
pulmonary function tests and two arterial blood gas studies, and two 
medical reports. The medical reports may include a review of any other 
evidence of record. Each party may also submit one piece of evidence in 
rebuttal of each piece of evidence submitted by the opposing party, and 
may submit one piece of evidence challenging each component of the 
Department's complete pulmonary evaluation authorized by Sec. 725.406. 
Thus, a party may have each chest X-ray submitted by the opposing party 
reread once, and may submit one report challenging the validity of each 
pulmonary function study or blood gas test submitted by the opposing 
party. In addition, one

[[Page 54994]]

commenter asked that the Department permit a party to rehabilitate 
evidence that has been the subject of rebuttal by the opposing party. 
For example, where a party submits a physician's opinion stating that 
the results of a pulmonary function study are invalid because the miner 
expended less than maximal effort in performing the test, the party 
submitting the test should be able to introduce a contrary statement 
from the physician who administered it. The Department agrees, and has 
revised paragraphs (a)(2)(ii) and (a)(3)(ii) accordingly.
    (c) A large number of commenters favor the proposed limitation on 
the quantity of medical evidence each side may submit. A number of 
other commenters object to the proposed limitation on the amount of 
medical evidence. They argue: (1) That the limitation is unnecessary; 
(2) that the exclusion of evidence will decrease the quality of 
factfinding under the Black Lung Benefits Act; (3) that the limitation 
violates section 413(b) of the Act, 30 U.S.C. 923(b); (4) that the 
limitation violates the Administrative Procedure Act, 5 U.S.C. 551 et 
seq.; and (5) that the limitation violates employers' due process 
rights. The Department anticipated most of these criticisms in the 
explanation of Sec. 725.414 contained in its initial notice of proposed 
rulemaking, 62 FR 3356-61 (Jan. 22, 1997), and the arguments advanced 
by the commenters provide no basis upon which to alter the regulation's 
proposed limitation as to the quantity of admissible evidence.
    The Department continues to believe that the limitation represents 
a reasonable means of focusing the fact-finder's attention on the 
quality of the medical evidence in the record before him. In 
particular, the limitation ensures that the claimant will undergo no 
more than five pulmonary evaluations (two claimant evaluations, two 
responsible operator evaluations, and the initial pulmonary evaluation 
provided by the Department under 30 U.S.C. 923(b)) for purposes of 
assessing claimant's entitlement to benefits. In light of the strenuous 
nature of pulmonary testing, including both pulmonary function tests 
and arterial blood gas tests, no claimant should have to undergo 
repeated evaluations simply to create a numerically superior 
evidentiary record for one side or the other. Instead, five evaluations 
should be sufficient in most cases to allow the fact-finder to assess 
the miner's pulmonary condition. In the Department's view, additional 
evaluations would be of only marginal utility.
    The Department's initial notice did not explicitly address, 
however, the extent to which a party's due process rights might be 
compromised by the Department's limitation on the amount of evidence 
that party may submit. The due process clause of the Fifth Amendment of 
the Constitution precludes governmental deprivations of life, liberty, 
or property without due process of law. Due process ``is not a 
technical conception with a fixed content unrelated to time, place and 
circumstances,'' but rather, a ``flexible'' doctrine that requires 
``such procedural protections as the particular situation demands.'' 
Mathews v. Eldridge, 424 U.S. 319, 334 (1976). At a minimum, it 
requires an opportunity to be heard ``at a meaningful time and in a 
meaningful manner.'' Id. at 333. A meaningful administrative hearing 
does not require the ``wholesale transplantation'' of judicial rules 
and procedures. Id. at 348. Nonetheless, the judicial model is a guide 
for assuring ``fairness.'' Id. In the end, due process cases turn on 
``the procedure's integrity and fundamental fairness.'' Richardson v. 
Perales, 402 U.S. 389, 410 (1971).
    In determining whether an administrative practice satisfies due 
process, the courts balance three distinct factors:

the private interest that will be affected by the official action; 
second, the risk of an erroneous deprivation of such interest 
through the procedures used, and the probable value, if any, of 
additional or substitute procedural safeguards; and finally, the 
government's interest, including the function involved and the 
fiscal and administrative burdens that the additional or substitute 
procedural requirements would entail.

Mathews, 424 U.S. at 335.
    The Department recognizes that both operators and claimants have 
significant, albeit competing, private interests at stake. Operators 
and their insurers have a monetary interest in each claim (involving an 
average payout over the life of the claimant of $175,000) and an 
interest in not being required to pay benefits in nonmeritorious cases. 
Claimants, on the other hand, are interested in the financial benefit 
of an award and in the opportunity to substantiate their claims without 
being overwhelmed by the superior economic resources of their 
adversaries.
    As a general rule, the Department does not believe that there is a 
significant risk of the erroneous deprivation of private interests on 
either side if both the claimant and the party opposing entitlement are 
subject to similar limitations on the quantity of the evidence that 
they may develop. Applicants with non-meritorious claims will find it 
difficult to generate two favorable medical reports, accompanied by 
supportive objective testing, from well-credentialed physicians. Faced 
with well-documented reports from an equal number of physicians 
retained by operators and their insurers, claimants will be unable to 
meet their burden of establishing each element of entitlement. 
Consequently, there is no increased risk of an erroneous deprivation of 
the interests of parties opposing entitlement. Similarly, the 
Department does not believe that the proposed evidentiary limitations 
will result in the denial of meritorious claims that are currently 
being awarded. Awards are typically issued in cases containing 
qualifying objective testing, or a reasoned and documented medical 
report by a physician with in-depth knowledge of both the miner's 
respiratory and pulmonary condition and the exertional requirements of 
the miner's usual coal mine work. Moreover, the overwhelming support 
for this proposal from claimant groups and attorneys suggests that they 
also do not believe that it will erroneously deprive meritorious 
claimants of benefit awards.
    In order to allow for the more careful consideration of the unique 
facts and circumstances of each case, however, and to provide an 
additional procedural safeguard, the Department has revised 
Sec. 725.456 as initially proposed to permit an administrative law 
judge to admit medical evidence into the record in excess of the limits 
outlined in Sec. 725.414 upon a showing of good cause. The Department's 
prior proposal would have permitted the admission of such evidence only 
if a moving party could demonstrate extraordinary circumstances. By 
adopting the more permissive good cause standard, the Department 
recognizes that a rigid rule prohibiting additional evidence may 
increase the risk of an erroneous deprivation of private interests in 
particular cases. For example, one commenter states that hearings in 
the Western states are frequently rescheduled due to weather conditions 
and rescheduling requests of the parties. In light of the time which 
elapses between the hearing request and the actual hearing, and the 
progressive nature of pneumoconiosis, the commenter argues that parties 
must be able to obtain and submit into the record more recent medical 
evidence. The commenter suggests that if a party has already submitted 
the maximum amount of evidence long before a case is heard, the record 
will be devoid of any evidence regarding the miner's

[[Page 54995]]

current medical condition. The Department agrees that in such a case, 
an administrative law judge may authorize the development of additional 
medical evidence in a manner that is equitable to all parties. Thus, to 
the extent that the evidentiary limits might heighten the risk of the 
erroneous deprivation of a private interest, the Department seeks to 
limit that result by allowing the submission of additional medical 
evidence upon a showing of good cause.
    The Department continues to believe that the amount of medical 
evidence admissible under this provision will generally be adequate to 
guarantee a full and fair adjudication of the miner's entitlement to 
benefits. The government also has an interest in maintaining that 
guarantee, and in improving the public's perception of the fairness of 
the process. The government's interest represents the third factor to 
be balanced under the Supreme Court's due process analysis. The 
additional flexibility contained in the Department's revised proposal, 
requiring that a party seeking to submit additional medical evidence in 
any individual case must establish good cause justifying its admission, 
will not impair the government's interest. Moreover, the Department's 
proposal will provide additional safeguards to ensure that the 
adjudication process properly balances the interests of all parties to 
a black lung claim. Accordingly, the Department does not believe that 
the evidentiary limitations contained in this provision will be 
considered a violation of the due process clause.
    (d) One comment objects to the Department's proposal to limit 
claimants' travel for responsible operator testing and/or examination 
to 100 miles from their homes. The Department's initial proposal 
contained the same restriction as does its current regulation (current 
20 CFR 725.414(a); proposed Sec. 725.414(a)(3)(i), limiting the ability 
of coal mine operators to compel miners to travel more than 100 miles 
to undergo an evaluation). The commenter argues that such a travel 
restriction on operators is not justified absent a comparable 
restriction on claimants. The Department does not believe that it would 
be appropriate to impose such a limitation on miners. The Department's 
proposed revision to Sec. 725.406, however, allows a miner to select 
the physician or facility to perform the complete pulmonary evaluation 
guaranteed under section 413(b) of the Act, 30 U.S.C. 923(b), from 
among authorized physicians or facilities in the state of his residence 
or any contiguous state. The limitation in the current regulations and 
the Department's initial proposal was intended to ensure that a coal 
mine operator not be able to subject a miner to undue hardship in 
traveling to the site of a physical examination. Where the miner 
selects a facility or physician more than 100 miles from his residence, 
however, he has demonstrated his willingness to undertake additional 
travel. In such cases, absent a change in the miner's health, the 
designated responsible operator should be entitled to compel the miner 
to travel an equivalent distance. Where the miner selects a physician 
within a 100-mile radius of his residence, the original rule should 
remain in effect. In order to effectuate these changes, the Department 
proposes revising subsection (a)(3)(i).
    (e) Several comments have asked the Department to alter the 
evidentiary limitations set forth in this section. One commenter urges 
the Department to exempt the report of a claimant's treating physician 
from the limitations while another feels that one examination per side 
is adequate. Another commenter suggests that the Department permit the 
responsible operator to submit only as much evidence as the claimant 
submits, thus allowing the claimant to determine the size of the 
evidentiary record. A fourth commenter suggests limiting responsible 
operators to no more than one medical report authored by a physician 
who examined the miner. The Department does not believe that any of 
these suggestions would be appropriate. The evidentiary limitations 
should not be skewed to allow one party to submit more evidence than 
another, or evidence of a different quality. Instead, each party must 
remain free to tailor the presentation of its case to the facts while 
functioning within the same evidentiary limitations applicable to other 
parties. The Department also notes that, to the extent these 
suggestions are based on a well-founded concern over requiring the 
miner to undergo up to five physical examinations within a short time, 
a specific concern of one commenter, the Department's proposal allowing 
parties to submit evidence to the OALJ will extend the period within 
which the parties may seek to have the miner examined.
    (f) One commenter urges the Department to allow a physician who 
prepared a medical report to rely on the opinion of the miner's 
treating physician in the course of preparing his report. The 
Department's proposal permits physicians to consider other physicians' 
opinions only if the medical reports of those physicians are 
independently admitted into the record in accordance with the 
regulation's evidentiary limitations. In addition, physicians preparing 
medical reports may rely on any treatment or hospitalization record 
that is admitted into the record under subsection (a)(4). The 
Department does not believe, however, that the regulations need contain 
any special treatment of the opinion of a miner's treating physician 
other than is provided in Sec. 718.104(d).
    (g) The Department has revised subsection (c) in order to clarify 
its intent and prevent parties from exceeding the evidentiary 
limitations by designating additional physicians as hearing witnesses. 
As revised, subsection (c) will permit testimony, either at the formal 
hearing or by deposition, by physicians who prepared medical reports. 
Other physicians may testify only to the extent that the party offering 
their testimony has not reached the limitation imposed by the 
regulation on the number of admissible medical reports, or if the 
administrative law judge finds good cause for allowing a party to 
exceed that limitation. In effect, testimony by a physician who did not 
prepare a documentary report will be considered a medical report for 
purposes of the evidentiary limitations. Thus, if a party has submitted 
only one documentary medical report, it may offer the testimony of one 
additional physician. If a party has not submitted any documentary 
medical reports, it may offer the testimony of two physicians.
    (h) Several commenters believe that each potentially liable 
operator should be entitled to obtain its own medical evidence. In its 
initial notice of proposed rulemaking, the Department explained that 
the limitation on the submission of medical evidence in cases involving 
more than one potentially liable operator is necessary to ensure that 
claimants are not subject to multiple examinations simply because they 
have an employment history that leaves the identity of the responsible 
operator in some doubt. 62 FR 3360-61 (Jan. 22, 1997). The comments 
offer no basis upon which to revise this provision. One comment 
supports the Department's proposal as in accord with the Federal 
Judicial Center's Manual for Complex Litigation, 3d (1995), Sec. 20.22-
20.222. Another comment states that district directors should never 
permit a potentially liable operator, other than the designated 
responsible operator, to submit evidence. The Department disagrees. 
Even in multiple operator cases, the proposed regulations allow all of 
the potentially liable operators to collectively submit no more 
evidence than that permitted the claimant. In the

[[Page 54996]]

event the designated responsible operator fails to develop the 
evidence, however, the district director must have the authority to 
permit the submission of medical evidence by another potentially liable 
party. Ultimately, of course, it will be the responsibility of the 
administrative law judge to ensure that the adjudication of the miner's 
entitlement is fair.
    (i) Several commenters generally request the Department to clarify 
the admissibility of hospital records, and the results of autopsies and 
biopsies as proposed in Sec. 725.414(a)(4). The Department believes 
that proposed subsection (a)(4) would require the admission of any 
medical record relating to the miner's respiratory or pulmonary 
condition without regard to the limitations set forth elsewhere in 
Sec. 725.414. To be sufficient to establish an element of entitlement, 
however, a report of autopsy or biopsy must substantially comply with 
the applicable quality standards, Sec. 718.106. See Sec. 718.101(b). 
The Department has not included an independent provision governing 
rebuttal of this evidence. As a general rule, this evidence is not 
developed in connection with a party's affirmative case for or against 
entitlement, and therefore the Department does not believe that 
independent rebuttal provisions are appropriate. Any evidence that 
predates the miner's claim for benefits may be addressed in the two 
medical reports permitted each side by the regulation. If additional 
evidence is generated as the result of a hospitalization or treatment 
that takes place after the parties have completed their evidentiary 
submission, the ALJ has the discretion to permit the development of 
additional evidence under the ``good cause'' provision of Sec. 725.456.
20 CFR 725.416
    A number of commenters, including representatives of claimants, 
coal mine operators and their insurers, urge the Department to 
eliminate informal conferences altogether. They argue that informal 
conferences seldom accomplish any purpose, and thus waste considerable 
time and resources. The Department disagrees. In the explanation of 
Sec. 725.416 that appeared in its initial notice of proposed 
rulemaking, 62 FR 3361 (Jan. 22, 1997), the Department explained that 
informal conferences serve a variety of useful purposes, including 
narrowing issues, achieving stipulations, and crystallizing positions. 
The comments received by the Department provide no reason to alter this 
view. In order to increase acceptance of the informal conference 
procedure, however, the Department believes that the district director 
should be able to articulate, in each case, why he believes that an 
informal conference would be helpful in the processing of the claim. 
Accordingly, the Department proposes to revise subsection (b) in order 
to require the district director to provide the parties with a 
statement articulating specific reasons why an informal conference 
would assist in the voluntary resolution of issues. The reasons must be 
tailored to the specific facts of that case. The district director's 
failure to include such a statement in his notification of conference 
will foreclose the use of sanctions set forth in paragraph (c). In 
addition, in order to reduce the parties' costs in participating in an 
informal conference, the Department proposes to formally recognize the 
district offices' current practice of allowing parties to participate 
by telephone in appropriate cases. Although the decision to allow 
telephone participation is committed to the discretion of the district 
director, the Department's regulations should explicitly acknowledge 
the availability of this option, and allow the parties to request its 
use by filing a request with the district director.
    (b) One comment states that the proposed sanctions set forth in 
subsection (c) will lead to further litigation and/or refilings. The 
Department has previously addressed this comment. See discussion of 
Sec. 725.409.

Subpart F

20 CFR 725.456
    (a) The Department proposes to retain the current rules governing 
time periods for submitting documentary medical evidence into the 
record. A change has been made to paragraph (b)(1) to reflect this 
decision, and new paragraphs (b)(2)-(4) and (c) have been added to the 
proposal from the Department's current rules (20 CFR 725.456(b)(1)-(3), 
(c), (d)). These revisions are fully explained above.
    (b) Paragraph (f) has been revised to take into account changes to 
section 725.406. Since the proposal would now require that the 
Sec. 725.406 pulmonary evaluation be performed by a facility or 
physician selected from a list maintained by the Office, language in 
subsection (f) that contemplated examination and/or testing by a 
facility or physician not approved by the Office has been deleted. See 
discussion accompanying Sec. 725.406.
    (c) All of the comments related to the Department's proposed 
revision of Sec. 725.456 are discussed under Sec. 725.414.
20 CFR 725.457
    (a) The Department has explained its proposal to retain the current 
rules governing the timely submission of medical evidence in connection 
with its explanation of changes to Sec. 725.414. The Sec. 725.414 
revision requires a corresponding change in the rule governing the 
identification of witnesses in proceedings before the Office of 
Administrative Law Judges. The revised regulation allows the testimony 
of witnesses relevant to the liability of a potentially liable operator 
and/or the identification of the responsible operator only if the 
identity of that witness was disclosed to the district director or the 
administrative law judge finds extraordinary circumstances. A physician 
may testify only if he prepared a medical report admitted into the 
record by the district director or administrative law judge. 
Alternatively, a physician may testify if his testimony, when 
considered as a medical report, does not result in a violation of the 
limitations on the quantity of evidence permitted by Sec. 725.414, or 
if the administrative law judge finds good cause for allowing the party 
offering the testimony to exceed those limitations.
    (b) A number of commenters objected to the Department's proposal 
limiting the scope of a physician's testimony. They argued that 
physicians who testify must be allowed to address all of the medical 
evidence of record in order to explain their conclusions, and that 
cross-examination of those physicians will depend on reference to 
objective testing and medical conclusions contained in other reports. 
The Department agrees that the original proposal's limitation was 
inappropriate, and has revised paragraph (d) accordingly. As revised, 
the regulation will only prevent a physician from testifying with 
respect to medical evidence relevant to the miner's condition that is 
not admitted into the record.
20 CFR 725.459
    One commenter suggests that the Black Lung Disability Trust Fund 
should be liable for witness fees incurred by an indigent claimant when 
cross-examining an adverse witness. Another commenter argues that the 
Department's original proposal, under which the party seeking to cross-
examine a witness must pay the necessary fees to secure that witness, 
violates section 28 of the Longshore and Harbor Workers' Compensation 
Act, 33 U.S.C. 928, as incorporated by 30 U.S.C. 932(a). Section 28 
generally requires that employers pay the reasonable costs

[[Page 54997]]

of successful claimants. In light of these comments, the Department has 
reconsidered its approach to the payment of expenses associated with 
cross-examination.
    The Department now proposes that the costs of cross-examination be 
borne by the party relying on the affirmative testimony of that 
witness. For example, where an employer submits a report by a 
physician, and the claimant seeks to summon the physician to the 
hearing for cross-examination, the employer must bear the costs of 
reimbursing its own physician. Under the regulation, the employer may 
request that the administrative law judge authorize a less intrusive 
method of cross-examination, including a deposition, telephone 
deposition, or interrogatories, provided that the method authorized 
will produce a full and true disclosure of the facts.
    The only exception to this general rule is in the case of an 
indigent claimant. The Department agrees that a claimant's medical 
evidence should not be excluded based on a claimant's financial 
inability to make a physician available for cross-examination. 
Accordingly, the Department proposes to revise paragraph (b) to allow 
an administrative law judge to apportion the costs of cross-examination 
where the claimant demonstrates his indigence. The Department does not 
agree, however, that the trust fund may be held liable for such fees in 
every case. Although the statutory provision governing the disbursement 
of monies from the fund, 26 U.S.C. 9501, permits the fund to pay 
administrative expenses associated with the black lung benefits 
program, the Department does not believe that the expenses of cross-
examination should necessarily be included in this category. Rather, 
the responsible operator seeking to cross-examine claimant's witness 
should bear liability for such fees, an expense which the operator may 
easily control. The fund will be liable for such witness fees in cases 
in which there is no coal mine operator liable for the payment of 
benefits. See, e.g., Republic Steel Corp. v. U.S. Department of Labor, 
590 F.2d 77 (3d Cir. 1978) (holding the fund liable for the payment of 
attorney's fees because the fund, the party liable for the payment of 
claimant's benefits, stood in the shoes of a responsible operator). 
Accordingly, in a case in which the claimant is indigent and a party 
seeks to cross-examine a witness of claimant's, the administrative law 
judge must apportion the costs among the claimant and the party 
opposing the claimant's entitlement. Where that party is an operator, 
the operator may be asked to bear all or part of the costs of cross-
examination, as appropriate. Where that party is the fund, the fund is 
subject to the same apportionment rules. In addition, the fund will 
bear liability for the costs of cross-examining the doctor who 
administered the section 413(b) pulmonary evaluation. See Sec. 725.406.
    The Department's proposal has several advantages. First, it avoids 
potential due process problems associated with the Department's 
previous proposal because no financial burden is placed on parties who 
wish to exercise their right to cross-examination except in the case of 
a claimant who is unable to pay the associated costs. At the same time, 
requiring the parties to show the necessity of a specific means of 
cross-examination, and allowing the administrative law judge to 
exercise sound discretion in addressing requests for cross-examination, 
protects witnesses from undue burdens and parties from undue expense. 
Under this proposal, operators would be required to bear the cost of 
witness fees only for their own witnesses, indigent claimants' 
witnesses, and for claimants who are ultimately successful in 
establishing their entitlement to benefits.
20 CFR 725.465
    Section 725.465 sets forth the conditions under which an 
administrative law judge may dismiss a claim, and also authorizes the 
administrative law judge to dismiss a party who is not a proper party 
to the claim under Sec. 725.360. The regulation was not among the 
provisions the Department opened for comment in its previous notice of 
proposed rulemaking, 62 FR 3341 (Jan. 22, 1997), and the Department did 
not receive any comments directed to this section. The Department now 
proposes to revise this regulation, however, to ensure that all 
potentially liable operators remain parties to proceedings before the 
administrative law judge in the absence of the Director's agreement to 
their dismissal. In proposing new regulations governing the 
identification of responsible operators, the Department intends that 
all potentially liable operators named by the district director have 
the opportunity to participate in the adjudication of the claimant's 
entitlement both before the administrative law judge and on appeal. 
Thus, under this proposed change, even if an administrative law judge 
concludes that one of the potentially liable operators is the 
responsible operator as defined by Subpart G of Part 725, he may not 
dismiss the other potentially liable operators absent the Director's 
consent. In the event that his responsible operator finding is reversed 
or vacated by either the Benefits Review Board or a federal court of 
appeals, the dismissal of other potentially liable operators before or 
simultaneously with adjudication of the claimant's entitlement would 
adversely impact the financial interests of the Black Lung Disability 
Trust Fund. Given the absence of the correct potentially liable 
operator as a party to a case, liability might well be imposed on the 
fund, especially since the proposal prohibits the re-naming of 
potentially liable operators after a case is referred to the Office of 
Administrative Law Judges, Sec. 725.407(d).

Subpart G

20 CFR 725.491
    (a) One commenter objects to the Department's attempt to clarify 
the liability of independent contractors under the Black Lung Benefits 
Act. The commenter argues that in imposing liability on independent 
contractors who do not have a ``continuing presence'' at the mine, the 
Department is exceeding its statutory mandate. Specifically, the 
commenter objects to the Department's decision to codify the D.C. 
Circuit's decision in Otis Elevator Co. v. Secretary of Labor, 921 F.2d 
1285 (D.C. Cir. 1990), instead of the Fourth Circuit's decision in Old 
Dominion Power Co. v. Donovan, 772 F.2d 92 (4th Cir. 1985). The 
Department has consistently advocated a broad interpretation of the 
statutory provision defining ``operator'' and its application to 
independent contractors, both in the context of litigation under 
subchapters 1 through 3 of the Federal Coal Mine Health and Safety Act 
and under the Black Lung Benefits Act. The D.C. Circuit accepted the 
Department's views in Otis Elevator while the Fourth Circuit rejected 
the Department's position in Old Dominion Power. In addition, while the 
Department was preparing its initial notice of proposed rulemaking, the 
Tenth Circuit announced its agreement with Otis Elevator: ``Although 
Congress may have been specially concerned with contractors who are 
engaged in the extraction process and who have a continuing presence at 
the mine, * * * section 3(d) by its terms is not limited to these 
contractors.'' Joy Technologies v. Secretary of Labor, 99 F.3d 991, 999 
(10th Cir. 1996), cert. denied, 117 S. Ct. 1691 (1997).
    The commenter cites the Third Circuit's decision in National 
Industrial Sand Ass'n v. Marshall, 601 F.2d 689 (3d Cir. 1979), in 
support of its position that the term ``operator'' should be narrowly 
construed. In National

[[Page 54998]]

Industrial Sand, however, the Third Circuit recognized that, as of the 
date of the court's opinion, the Department of Labor had not yet 
promulgated regulations under the Federal Mine Health and Safety Act 
defining the degree to which independent contractors were subject to 
that Act's health and safety provisions. The dicta cited by the 
commenter thus does not constitute a rejection of the Department's 
position on coverage. Given the adoption of its position by the D.C. 
and Tenth Circuits, and its rejection by only the Fourth Circuit, there 
appears to be no reason for the Department to adopt in its regulations 
a decision at odds with its consistent interpretation, and the 
commenter provides none.
    The same commenter suggests that the Department's interpretation 
would result in the coverage of food and beverage workers who serve 
lunch to coal miners. The Act requires that those who contract 
pneumoconiosis as a result of work in the Nation's coal mines receive 
compensation for the totally disabling effects of that disease. 
Although it is difficult to imagine that food and beverage workers will 
be sufficiently exposed to coal mine dust to contract pneumoconiosis, 
those individuals who are totally disabled as a result of that 
exposure, and who meet the definition of ``miner'' (``* * * any 
individual who * * * has worked in or around a coal mine or coal 
preparation facility in the extraction or preparation of coal,'' 30 
U.S.C. 902(d)), are no less entitled to compensation than are other 
miners. The employer of such individuals must assume liability for the 
payment of any benefits to which they are entitled, provided that the 
employer meets the criteria for a potentially liable operator set forth 
in Sec. 725.494.
    (b) One commenter argues that the Department's exclusion in 
Sec. 725.491(f) of both state and federal governments from potential 
liability under the Act is inappropriate. The commenter suggests that 
the Department's proposal excluding the United States will cause 
federal employees to file claims under the Black Lung Benefits Act 
rather than the Federal Employees Compensation Act (FECA). The 
Department disagrees; the proposed regulation merely codifies the 
holding of the Fourth Circuit in Eastern Associated Coal Corp. v. 
Director, OWCP, 791 F.2d 1129 (4th Cir.1986). The court in that case 
held that the United States could not be considered a responsible 
operator based on the miner's most recent employment as a federal coal 
mine inspector. To the extent that such employees develop 
pneumoconiosis as a result of previous coal mine employment, they must 
be permitted to file claims under the Act. To the extent that they are 
injured during the course of their federal employment, FECA provides 
the appropriate remedy. The Department does not agree that its adoption 
of the Fourth Circuit's decision in Eastern Associated Coal will result 
in an increase in unwarranted claims under the Act.
    The same commenter argues that the Department cannot relieve state 
governments of their liability under the Act, and that the Department's 
approach under the Black Lung Benefits Act is inconsistent with its 
approach under the Fair Labor Standards Act. The comment, however, 
fails to recognize a fundamental difference between the two statutes: 
the Black Lung Benefits Act contains no mention of states as employers 
subject to potential liability for black lung benefits, while the Fair 
Labor Standards Act explicitly lists state governments among the 
``public agencies'' that may be considered employers for FLSA purposes. 
Supreme Court caselaw illustrates the importance of this distinction. 
In Gregory v. Ashcroft, 501 U.S. 452 (1991), the Court considered the 
applicability of the Age Discrimination in Employment Act to judges 
employed by the State of Missouri. The Court observed that, although 
the Tenth Amendment to the United States Constitution did not prohibit 
Congress from exercising the power derived from the Commerce Clause 
with respect to state governments, ``we must be absolutely certain that 
Congress intended such an exercise.'' 501 U.S. at 464. The Fair Labor 
Standards Act meets this test; Congress clearly intended that the FLSA 
apply to public agencies, including state governments. In the absence 
of similar language in the Black Lung Benefits Act, however, the 
Department cannot seek to hold states liable for the payment of black 
lung benefits.
    (c) One comment states that the rebuttable presumption of exposure 
to ``coal dust'' set forth in subsection (d) is inconsistent with the 
presumption set forth in Sec. 725.202 of this part. The Department 
agrees that the two provisions should be harmonized. Both the Third and 
Eleventh Circuits have agreed that the Department's use of the term 
``coal mine dust'' in Sec. 725.202 represents a permissible reading of 
the Black Lung Benefits Act. Williamson Shaft Contracting Co. v. 
Phillips, 794 F.2d 865, 870 (3d Cir. 1986); William Brothers, Inc. v. 
Pate, 833 F.2d 261, 264 (11th Cir. 1987). Congress intended that the 
Black Lung Benefits Act provide compensation for any ``chronic dust 
disease of the lung * * * arising out of coal mine employment.'' 30 
U.S.C. 902(b). The Department has consistently interpreted this mandate 
broadly, by including diseases such as silicosis in the definition of 
the term ``pneumoconiosis,'' provided they arise out of coal mine 
employment. See 43 FR 36825 (Aug. 18, 1978). The Department accordingly 
proposes to revise subsection (d) to make it conform with Sec. 725.202, 
and to revise subsection (a)(2)(i) to ensure the consistent use of the 
phrase ``coal mine dust.''
20 CFR 725.492
    (a) One commenter suggests that the Department's proposed 
regulations would require the purchaser of a coal mine company's assets 
in a bankruptcy proceeding to assume the bankrupt company's black lung 
benefits liabilities, and that this provision would destroy the coal 
mining industry in Maryland. The Secretary's regulations merely repeat 
the language of the statute, which provides that successor operator 
liability may arise from ``corporate reorganizations'' and 
``liquidations,'' among other listed transactions. 30 U.S.C. 
932(i)(3)(A). The Department is not free to disregard Congress' 
explicit intent to cover a wide variety of transactions in which coal 
mine assets may be sold. The Act and regulations generally impose 
potential liability on a successor operator, however, only after the 
transfer of coal mine assets from a seller that has failed to secure 
its potential liability in violation of the statutory mandate at 30 
U.S.C. 933(a); if the seller obtained black lung insurance, a purchaser 
of its coal mine assets will probably not face any black lung 
liabilities arising from the seller's previous operation of the mine.
    (b) Another commenter observes that the Department's regulations 
would shift liability to a successor operator, notwithstanding the fact 
that a prior operator that had gone out of business had insurance to 
cover a given claim. The Department disagrees that the proposed 
regulations would produce this outcome. The Department's first notice 
of proposed rulemaking contained an example in an attempt to make the 
intent of the regulation clear. See 62 FR 3365 (Jan. 22, 1997). Indeed, 
the regulations specifically provide that a prior operator shall remain 
liable if it meets the requirements of Sec. 725.494, Sec. 725.492(d). 
See also Sec. 725.493(b)(1). One of Sec. 725.494's requirements is that 
the prior operator must remain financially capable of assuming 
liability for the payment of benefits. An operator is deemed capable of 
assuming liability

[[Page 54999]]

for a claim if it obtained insurance and the insurance company is not 
insolvent, Sec. 725.494(e)(1). Section 725.495 assigns liability to the 
operator that most recently employed the miner. Thus, if a miner's most 
recent employer obtained insurance and subsequently sold its assets or 
dissolved into a parent corporation, section 725.495 would require the 
most recent employer's insurer to assume liability for any benefits 
payable to the claimant. Only if that insurer is no longer solvent will 
the Department seek to impose liability on a successor or parent 
corporation. Because the Department believes that the regulations are 
clear on this point, no changes have been made.
20 CFR 725.493
    (a) The Department has made a technical change to the language of 
subsection (a)(2) to make the regulation easier to read.
    (b) One comment objects to subsection (a)(1) as an attempt to 
redefine independent contractors and sole proprietors as employees, in 
order to force coal mine operators to assume liability for any benefits 
payable to those individuals. In administering the Black Lung Benefits 
Act for the past 25 years, the Department has seen coal mine companies 
use a variety of financial arrangements in an effort to avoid liability 
for black lung benefits. These have included the designation of all 
miners as partners, the use of 11-month employment contracts with an 
operator's subsidiaries, and the establishment of separate, underfunded 
companies to provide labor to a coal mine operator. Subsection (a)(1) 
is intended to foreclose those efforts by recognizing a broad range of 
employment relationships between coal mine companies and those 
individuals who actually mine coal. By proposing more specific language 
defining an ``employment relationship,'' the Department hopes to ensure 
that coal mine operators provide compensation to all their employees 
with totally disabling pneumoconiosis. It is not the Department's 
intent, however, to redefine ``independent contractor'' or ``sole 
proprietor'' simply to make coal mine operators liable for those 
individuals' benefits. The Department has added language to subsection 
(a)(1) to clarify its purpose, and invites comment on whether the 
proposed language accomplishes the Department's intent.
    (c) One comment suggests that the ``control'' test of subsection 
(a)(2) is unconstitutional insofar as it creates federal common law. 
The comment contains no citation to specific precedent and no further 
explanation. The comment therefore provides the Department with an 
insufficient basis for altering the proposal.
20 CFR 725.494
    (a) The Department has made several technical changes to the 
language of the proposed regulation to make the regulation easier to 
read.
    (b) One comment suggests that the presumptions set forth in 
subsections (a) and (e) are illegal and violate the Supreme Court's 
decision in Greenwich Collieries. The Department's authority to create 
regulatory presumptions is discussed in detail elsewhere in this 
preamble. The Department notes that the presumption set forth in the 
proposed version of subsection (a) merely reflects the presumption 
currently contained in Sec. 725.493(a)(6). Subsection (e) is not a 
presumption at all, but merely a recitation of the evidence that will 
support a finding that a coal mine operator is financially capable of 
assuming liability for the payment of benefits, one of the Secretary's 
prerequisites for naming a company a potentially liable operator.
    (c) One miner comments that the only coal mining company he worked 
for after 1969 is now bankrupt, so that the Sec. 725.494(d) requirement 
is not met in his case. He asks where that leaves miners like him. A 
miner's failure to meet this requirement has no impact on his potential 
entitlement to benefits. It merely means that if he is found entitled, 
his benefits will be paid by the Black Lung Disability Trust Fund 
rather than a coal miner operator or its insurer.
20 CFR 725.495
    Several commenters argue that Sec. 725.495 impermissibly shifts the 
burden of proof as to the identity of a responsible operator from the 
Department to employers. The commenters state that the proposed 
language does not codify current law, but rather the unsuccessful 
litigation position advanced by the Department in Director, OWCP v. 
Trace Fork Coal Co., 67 F.3d 503 (4th Cir. 1995). In its explanation of 
the proposed revision of Sec. 725.495, the Department acknowledged that 
its proposal addressed issues not resolved by the current regulations. 
62 FR 3364-65 (Jan. 22, 1997). The commenters' implication that the 
proposal violates the Fourth Circuit's decision, however, is mistaken. 
In Trace Fork, the court explicitly observed that ``[t]he Black Lung 
Benefits Act and its accompanying regulations do not specifically 
address who has the burden of proving the responsible operator issue.'' 
67 F.3d at 507. In the absence of specific guidance, the court 
concluded that the Secretary bore this burden. In proposing these 
regulations, the Department is not violating Trace Fork, but rather 
filling the void noted by the court. The Department's prior explanation 
in its original proposal, 62 FR 3363-65 (Jan. 22, 1997), contains a 
full explanation of the Department's proposed changes.

Subpart H

20 CFR 725.502
    (a) Paragraph (b)(1), as originally proposed, made monthly benefits 
due on the ``first business day of the month following the month for 
which the benefits are payable.'' 62 FR 3412 (Jan. 22, 1997). Although 
no comments were received concerning this provision, the Department has 
determined that paragraph (b)(1) should be changed to make monthly 
benefits due on the fifteenth calendar day of the month. This change 
reflects current departmental practice with respect to the payment of 
benefits by the Trust Fund. The change will promote consistency on the 
part of the Trust Fund and operators by requiring the payment of 
monthly benefits on the same schedule. Thus, the change will allow 
uniform claimant expectation as to the regular date of payment, 
notwithstanding the identity of the payor.
    The proposed change also affects the example of hypothetical due 
dates for the payment of benefits contained in the initial notice of 
proposed rulemaking, 62 FR 3366 (Jan. 22, 1997). In that example, an 
administrative law judge's order awarding benefits issues on August 15, 
1996. Under paragraph (b)(1), as originally proposed, the operator must 
pay the monthly benefits due for August within ten days after the first 
business day of September (i.e., September 10, 1996) to avoid a 
penalty; September is the ``month following the month for which the 
benefits are payable.'' Paragraph (b)(1), as reproposed, would require 
the operator to pay the monthly benefits for August within ten days 
after the fifteenth of September to avoid the late-payment penalty 
(i.e., September 25, 1996). As discussed in the January 1997 preamble, 
retroactive benefits covering the period before the ALJ's August 15, 
1996, award, will not be due until the district director completes the 
computation of these amounts and notifies the parties. Such 
notification will be completed within 30 days of August 15, 1996.
    (b) Several comments state that imposition of the twenty percent 
penalty for failure to commence the

[[Page 55000]]

timely payment of benefits after entry of an effective award is unfair 
and punitive when the penalty applies to an award which is still in 
litigation. The Department disagrees. The Black Lung Benefits Act 
incorporates the twenty percent penalty provision of the Longshore and 
Harbor Workers' Compensation Act, 33 U.S.C. 914(f), as incorporated by 
30 U.S.C. 932(a). The purpose of the penalty is to ensure prompt 
compliance by an employer with its benefits obligations under the terms 
of an award, and without regard to further proceedings involving the 
claim. See 43 FR 36815 (Aug. 18, 1978), Sec. 725.607, Discussion and 
changes (a). The existence of the Black Lung Disability Trust Fund does 
not change that purpose. As discussed in the first notice of proposed 
rulemaking, 62 FR 3365-66 (Jan. 22, 1997), only some responsible 
operators commence the payment of benefits upon entry of an award when 
further proceedings are pending; even fewer pay retroactive benefits. 
Noncompliance shifts the burden of paying interim monthly benefits to 
the Trust Fund to ensure the claimant receives benefits until 
compliance ensues, or the litigation terminates with affirmation of the 
award or its reversal. Operators therefore routinely use the Trust Fund 
as a surrogate to defer liabilities or reduce the risk of losing 
interim payments in the event an award is reversed, and the beneficiary 
cannot repay the interim benefits. The Department recognizes the fiscal 
reasoning behind this practice. Congress, however, imposed primary 
responsibility for paying benefits on the coal mining industry, and 
intended individual operators to assume liability to the maximum extent 
possible. See generally Old Ben Coal Co. v. Luker, 826 F.2d 688, 693 
(7th Cir. 1987), quoting S. Rep. No. 209, 95th Cong., 1st Sess. 9 
(1977). Congress created the Trust Fund to fulfill two limited roles: 
pay claims for which no individual operator could be held liable, and 
assume temporary liability if the responsible operator fails or refuses 
to pay. 26 U.S.C. 9501(d). With respect to the latter role, the Fund 
acts to protect the claimant by ensuring the continuous and timely 
receipt of benefits until the operator pays or the award is overturned. 
This objective does not extend to insulating the responsible operator 
from the economic risks of paying benefits on an award which might 
ultimately be reversed. Moreover, requiring payment of benefits on a 
non-final award does not infringe the operator's right to challenge the 
award. Section 725.502 simply shifts the economic risk that the initial 
award is incorrect from the Trust Fund to the operator. The operator 
receives adequate protection of its interests through its right to 
develop evidence and participate in the adjudication process. Such 
participation gives the operator a voice in the merits of the award and 
the opportunity to challenge an award if it disagrees with it. 
Consequently, the Department believes that the availability of 
penalties to foster prompt compliance with the terms of an award is 
warranted, even if the operator pursues an appeal. Section 725.502 
implements the Congressional mandate that individual coal mine 
operators bear the burden of paying benefits whenever liability exists.
    (c) One comment objects that Congress never intended to require a 
responsible operator to pay retroactive benefits before an award 
becomes final in claims filed after 1981. In general, the party liable 
for the payment of a claim must pay all benefits due under the terms of 
an award when that award becomes effective. Congress has permitted one 
exception. Under 26 U.S.C. 9501(d)(1)(A), the Trust Fund will pay 
benefits on a claim filed after January 1, 1982 ``only for benefits 
accruing after the date of such initial determination'' if the Fund is 
paying interim benefits on behalf of an operator who has not made a 
payment which is due. This statutory exception, by its language, 
applies only to the Fund, and only to interim benefits payments. In all 
other situations, the claimant is entitled to the full payment of 
benefits authorized by the award even if litigation continues. If 
payments are withheld by the operator until the award becomes final in 
a post-1981 claim, the operator must pay interest as well. 30 U.S.C. 
932(d). Contrary to the commenter's view, Congress clearly intended 
responsible operators to pay retroactive benefits as well as monthly 
benefits immediately when a claimant's entitlement is established by an 
effective benefits award.
    (d) One comment objects to the requirement in paragraph (b)(2) that 
an operator must pay retroactive benefits despite continuing litigation 
over the propriety of the award itself. The commenter argues that an 
operator has no realistic chance of recovering the benefits if the 
award is ultimately reversed, and suggests the Trust Fund should 
reimburse an operator who pays retroactive benefits. A right to 
benefits established by an award, however, cannot be conditioned on the 
likelihood the operator will recover the benefits if the claimant is 
ultimately found ineligible. If the claimant has a present right to 
receive benefits, then the operator must pay according to the terms of 
the award without regard to the possibility of a later reversal. The 
terms of the award include all benefits to which the miner is entitled, 
including retroactive benefits. The Department also rejects the 
suggestion that the Fund reimburse any operator who pays retroactive 
benefits but thereafter defeats the claim. The Fund is not authorized 
to reimburse operators except for those claims for which liability has 
transferred to the Fund pursuant to law. See 26 U.S.C. 9501(d)(6), (7).
    (e) One comment suggests three additions to this section: (i) a 
requirement that the Trust Fund pay interim benefits if a responsible 
operator obtains a stay of payments pursuant to 33 U.S.C. 921(c), as 
incorporated by 30 U.S.C. 932(a), until the stay is dissolved; (ii) 
clarification that a responsible operator must pay benefits during the 
pendency of its modification petition until the petition is granted; 
and (iii) language stating that an administrative law judge's award 
becomes final despite any order leaving the computation of benefits to 
the district director. No changes are necessary in response to the 
commenter's suggestion. (i) The Department agrees that the Trust Fund 
must pay benefits on an interim basis if the operator obtains a stay of 
payments. This obligation derives from Section 9501 of the Internal 
Revenue Code, which defines the Fund's operation and payment 
obligations. 26 U.S.C. 9501. The expenditures which the Fund may 
undertake include the payment of benefits when the operator liable for 
benefits ``has not made a payment within 30 days after that payment is 
due[.]'' 26 U.S.C. 9501(d)(1)(A)(ii). If an operator obtains a stay and 
a benefit payment comes due during the pendency of the stay, the Trust 
Fund will make the payment. (ii) Clarification of an operator's 
benefits obligation during modification proceedings is unnecessary. 
Section 725.502(a)(1) is unambiguous: ``An effective order shall remain 
in effect unless it * * * is superseded by an effective order issued 
pursuant to Sec. 725.310'' (regulation implementing modification). Once 
an effective order exists requiring an operator to pay benefits, the 
operator must pay until that order is overturned. Filing a modification 
petition does not supersede an otherwise effective award. The petition 
merely initiates the process to reopen the award. During the pendency 
of the modification proceedings and prior to entry of an effective 
decision on modification, the terms of the existing decision prevail,

[[Page 55001]]

and the operator must pay benefits in compliance with that decision. 
(iii) The commenter cites Keen v. Exxon Corp., 35 F.3d 226 (5th Cir. 
1994), as a potential loophole to the finality of administrative law 
judge decisions. In Keen, an administrative law judge approved a claim 
under the Longshore and Harbor Workers' Compensation Act, but ordered 
the district director to calculate the amount of compensation due. The 
employer paid the benefits within ten days of the district director's 
order rather than the administrative law judge's decision. The Court 
acknowledged that the employer possessed sufficient information to 
determine for itself the amount of benefits due, rather than wait for 
the district director's findings. The Court, however, stressed that the 
administrative law judge's decision was not ``final'' precisely because 
it required the district director to make the actual computation. No 
change in the regulations is necessary to account for the practice 
followed by the administrative law judge in Keen. Section 725.502(a)(2) 
states that an administrative law judge's order becomes ``effective'' 
when it is filed in the office of the district director. Once an 
administrative law judge's order is effective, benefits are due under 
Sec. 725.502(a)(1) and ``shall be paid.'' In any event, orders akin to 
the one issued in Keen are rarely, if ever, used in the black lung 
program. Awards by administrative law judges ordinarily identify the 
number of beneficiaries and the onset date(s) for payment. The amount 
of the prospective benefits to be paid within these parameters is fixed 
by law; no independent computation by the district director is 
therefore needed. Moreover, the Department has already placed the 
burden of computing the retroactive benefits on the district director 
in Sec. 725.502(b)(2), and made clear that those benefits are not due 
until the district director issues an order setting the amount. Since 
Sec. 725.502(b)(1) is unambiguous that prospective benefits must 
commence by a date certain once an award is effective, the operator 
cannot use the corollary order for retroactive benefits as a pretext to 
avoid paying the prospective benefits.
20 CFR 725.503
    Several comments take issue with the Department's treatment of the 
date from which benefits are payable in cases in which a factfinder 
grants modification on the ground of a change in conditions. One 
comment urges the Department to require that when the evidence does not 
establish the specific month in which the miner became totally disabled 
due to pneumoconiosis, benefits be made retroactive to the date of the 
adverse decision that was the subject of modification. Another comment 
states that the revised proposal permits the payment of benefits before 
the onset of the miner's totally disabling pneumoconiosis, in violation 
of incorporated provisions of the Longshore Act.
    The Department's initial proposal could have led to considerable 
litigation as to the date from which benefits should be paid in change 
of condition cases. The Department now proposes a different method to 
determine this commencement date, one which will give preclusive effect 
to an earlier factfinder's denial, but will also be relatively easy to 
apply. In all other successful miners' claims, benefits are awarded as 
of the month of onset of the miner's totally disabling pneumoconiosis. 
If that month cannot be established, benefits are payable from the 
month in which the miner filed his application, based on the logical 
premise that the filing date would be relatively close to the date on 
which the miner believed that he was entitled to benefits. This method 
has worked well in the adjudication of black lung claims in general, 
and the Department is therefore proposing a similar method for 
determining the commencement date in change of condition cases. 
Although every effort will be made to determine the precise date on 
which the miner became totally disabled due to pneumoconiosis, the date 
on which the miner requested modification of a previous denial 
represents an equitable fallback in cases in which the evidence is 
insufficient to resolve the issue. In determining the commencement 
date, a factfinder may award benefits prior to the date of the 
modification request only where credible medical evidence demonstrates 
that the miner's pneumoconiosis became totally disabling prior to that 
date. In no event may such evidence be used to justify an award which 
predates the effective date of the most recent factfinder's denial of 
the claim. Conversely, a factfinder may not award benefits retroactive 
to the date of the request where more recent credible evidence 
demonstrates that the miner did not become totally disabled until a 
later date.
20 CFR 725.515
    The Department did not propose revisions to Sec. 725.515 in its 
initial notice of proposed rulemaking, 62 FR 3338 (Jan. 22, 1997). The 
Department has since determined that the regulation should be amended 
to conform it to applicable law. Section 16 of the Longshore and Harbor 
Workers' Compensation Act prohibits the garnishment of benefits, 33 
U.S.C. 916; this provision is incorporated into the Black Lung Benefits 
Act. 30 U.S.C. 932(a). Section 725.515 implements section 16. 20 CFR 
725.515. In 1975, Congress enacted section 459 of the Social Security 
Act, 42 U.S.C. 659, to permit the garnishment of federal pay and 
benefits for alimony and child support obligations. Congress thereafter 
amended the garnishment provisions in 1977 to clarify their 
applicability to benefits payments made by the federal government; 
black lung benefits were specifically excluded from coverage. Congress 
removed the exclusion, however, in 1996 legislation, which became 
effective on February 22, 1997. Pub. L. No. 104-193, Sec. 362(d), 110 
Stat. 2247. Thus, black lung benefits paid by the Black Lung Disability 
Trust Fund are subject to garnishment for child support and alimony. 
The Office of Personnel Management (OPM) is authorized to issue 
garnishment regulations for the Executive Branch implementing 42 U.S.C. 
659. Exec. Order No. 12,105, 43 FR 59,465 (Dec. 19, 1978). OPM recently 
amended its regulations to conform to the 1996 amendments and permit 
garnishment of federal black lung benefits paid by the Trust Fund. 63 
FR 14,756, 14,758 (March 26, 1998) (to be codified at 5 CFR 
581.103(c)(6)). Because 42 U.S.C. 659 is a waiver of sovereign 
immunity, however, it does not alter any anti-alienation provision 
governing payments by private parties. See generally Moyle v. Director, 
OWCP, 147 F.3d 1116 (9th Cir. 1998), pet. for cert. filed, No. 98-927 
(Dec. 3, 1998) (holding that 42 U.S.C. 659 authorizes garnishment of 
longshore benefits payable by the Special Fund to satisfy beneficiary's 
obligation to pay alimony despite 33 U.S.C. 916, which applies only to 
private employers or insurers). Consequently, 20 CFR 725.515 must be 
amended to reflect the limitations on the coverage of section 16: 
benefits payments by a responsible operator cannot be garnished to 
satisfy alimony or child support obligations, while payments which are 
the liability of the Trust Fund can be garnished.
20 CFR 725.533
    Section 725.533 was not among the provisions which the Department 
opened for comment in its previous notice of proposed rulemaking, 62 FR 
3341 (Jan. 22, 1997). In connection with the proposed deletion of 
section 725.403, however, which governs claims filed under section 415 
of the Act, 30 U.S.C. 925, the Department proposes

[[Page 55002]]

corresponding deletions to paragraphs (b) and (c) of section 725.533. 
These paragraphs govern the payment of benefits in section 415 claims. 
Paragraphs (d)-(g) have been redesignated paragraphs (b)-(e). The 
Department does not intend to alter the rules applicable to any section 
415 claim that may still be in litigation, and 20 CFR 725.533(b), (c) 
will remain applicable to any such claim. Parties interested in 
reviewing section 725.533 may consult earlier editions of the Code of 
Federal Regulations or the Federal Register in which the regulation was 
originally published. The Department invites comment on whether section 
725.533 should be retained in the Code of Federal Regulations.
20 CFR 725.543
    Section 725.543 was not among the provisions which the Department 
opened for comment in its previous notice of proposed rulemaking, 62 FR 
3341 (Jan. 22, 1997), and the Department did not receive any comments 
specifically directed to this section. The Department did receive a 
number of general comments critical of the application of the criteria 
used to determine whether recoupment of an overpayment would defeat the 
purposes of title IV of the Federal Coal Mine Health and Safety Act or 
would be against equity and good conscience. Although the Black Lung 
Benefits Act incorporates these waiver criteria from the Social 
Security Act, 30 U.S.C. 923(b), 940, incorporating 42 U.S.C. 404(b), 
Sec. 725.543 currently incorporates the regulations promulgated by the 
Social Security Administration under its administration of Part B of 
the Black Lung Benefits Act. Because virtually no new applications for 
benefits are filed under Part B, it is unlikely that the Part B 
regulations will be amended to reflect new interpretations of the 
statutory criteria by the Social Security Administration and the 
federal courts. In fact, the Part B regulations currently incorporated 
in Sec. 725.543 which define ``fault,'' ``defeat the purpose of title 
IV,'' and ``against equity and good conscience,'' Secs. 410.561b, 
410.561c, and 410.561d, were last published in the Federal Register in 
1972. By contrast, the regulations governing claims under Title II of 
the Social Security Act, contained in 20 CFR Part 404, have been 
amended to keep pace with current law. Accordingly, the Department 
proposes to amend section 725.543 to incorporate Social Security's more 
current standards for establishing waiver of recovery of an 
overpayment.
20 CFR 725.544
    Section 725.544 was not among the regulations which the Department 
opened for comment in its previous notice of proposed rulemaking, 62 FR 
3341 (Jan. 22, 1997). One comment pointed out, however, that current 
law allows agencies of the United States to compromise claims of the 
United States government of not more than $100,000. The Department 
proposes to amend the regulation to reflect this change, and to delete 
the reference to the Federal Claims Collection Act of 1966, which has 
been repealed. The relevant provision governing compromise of claims by 
the United States is now codified in the United States Code at 31 
U.S.C. 3711.
20 CFR 725.547
    (a) The original proposal extended the right to seek waiver of 
recovery of an overpayment to all claimants, without regard to whether 
recovery was sought by a responsible operator or the Black Lung 
Disability Trust Fund. Many commenters urge the Department to 
promulgate rules governing recovery of overpayments based on the 
incorporated provisions of the Longshore and Harbor Workers' 
Compensation Act, 33 U.S.C. 914(j), 922, as incorporated by 30 U.S.C. 
932(a). Pursuant to these provisions, overpaid amounts may be recovered 
only by withholding future benefit payments. Other commenters object to 
the proposal on the ground that it will make more difficult operator 
recovery of overpayments. The policy considerations governing this 
regulatory revision were fully discussed in the Department's original 
proposal, 62 FR at 3366-3367 (Jan. 22, 1997), and the comments suggest 
no new basis for further change.
    (b) Several comments state that this rule would unconstitutionally 
deprive operators of property rights, while other comments argue that 
it would deprive operators of an effective right of appeal. The process 
used to adjudicate applications for black lung benefits provides coal 
mine operators with the right to notice and the opportunity for a 
hearing before the issuance of an effective award, the only award which 
mandates payment by a coal mine operator. Federal courts have 
considered similar allegations with respect to the entitlement 
adjudication scheme used under the Longshore Act, a scheme identical to 
that used to adjudicate claims for black lung benefits, and have 
unanimously concluded that the Longshore Act does not violate 
employers' constitutional rights. Schmitt v. ITT Federal Electric 
Int'l., 986 F.2d 1103 (7th Cir. 1993); Abbott v. Louisiana Insurance 
Guaranty Ass'n., 889 F.2d 626 (5th Cir. 1989), cert. denied, 494 U.S. 
1082 (1990). Because the Longshore Act is even more restrictive 
regarding an employer's right to recover an overpayment than the 
Department's proposed black lung benefits regulations, see 62 FR 3366 
(Jan. 22, 1997), the Department does not agree that the proposed scheme 
is unconstitutional. Similarly, there is no constitutionally recognized 
right of appeal. As under the Longshore and Harbor Workers' 
Compensation Act, operators may appeal in order to reduce their future 
benefit obligations, but success on appeal does not necessarily mandate 
the repayment of all previously paid benefits. Moreover, 
notwithstanding the proposal, coal mine operators may seek recoupment 
of any overpaid amounts. In fact, they are entitled to repayment 
provided the claimant is not entitled to waiver. These waiver 
provisions have been used by the Department throughout its 
administration of Part C of the Act to determine whether an overpaid 
claimant must repay amounts owed the Black Lung Disability Trust Fund. 
The Department's experience clearly demonstrates that application of 
these waiver criteria does not wholly foreclose the recoupment of 
overpaid amounts.
    (c) One comment states that the Department's legal analysis of the 
overpayment issue neglected Sec. 430 of the Black Lung Benefits Act, 30 
U.S.C. 940. Section 430 provides that the provisions of the Black Lung 
Benefits Act of 1972, the Black Lung Benefits Reform Act of 1977, and 
the Black Lung Benefits Amendments of 1981 applicable to Part B of the 
Black Lung Benefits Act shall also apply, as appropriate, to Part C of 
the Act. None of these statutory enactments prohibits the Department 
from applying the same waiver criteria to the recoupment of overpaid 
amounts by both operators and the Black Lung Disability Trust Fund.
    (d) Several comments address the test used to determine whether or 
not claimants are entitled to waiver of recoupment, Secs. 725.542, 
725.543. The Department also heard considerable testimony at both 
hearings on the overpayment issue. The Department does not contemplate 
changing the legal test for waiver since it is based on statutory 
language incorporated into the BLBA from the Social Security Act, 30 
U.S.C. 923(b), 940, incorporating 42 U.S.C. 404(b). The Department has 
altered Sec. 725.543 to make the Department's interpretation of these 
criteria consistent with the current

[[Page 55003]]

Social Security Administration standards.
20 CFR 725.548
    In both its current version and the Department's proposed revision, 
section 725.547 is titled ``Applicability of overpayment and 
underpayment provisions to operator or carrier.'' Despite this title, 
the regulation contains two paragraphs, (c) and (d), that are intended 
to apply to overpayment and underpayment issues regardless of whether 
the Black Lung Disability Trust Fund or a responsible operator is 
liable for the payment of benefits. These paragraphs authorize the 
district director to enter appropriate orders to protect the rights of 
the parties with regard to overpayments or underpayments, and provide 
that disputes arising out of such orders are to be resolved using the 
same procedures used to resolve entitlement and liability issues. In 
reviewing its proposed revision to section 725.547, the Department 
realized that the title of the regulation might mislead parties into 
believing that paragraphs (c) and (d) are applicable only in cases 
involving responsible operator liability. Because the Department 
intends that the same procedures be used to adjudicate overpayment and 
underpayment issues regardless of the liable party, the Department 
proposes that paragraphs (c) and (d) be relocated in a separate 
regulation with a more general title. Consequently, the Department 
proposes the addition of section 725.548, titled ``Procedures 
applicable to overpayments and underpayments.''

Subpart I

20 CFR 725.606
    (a) Paragraph (c), as originally proposed, contains a typographical 
error. In the first sentence, the second reference to paragraph (a) 
should be a reference to paragraph (b). Paragraph (b) describes the 
amount of negotiable securities which an employer must deposit with a 
Federal Reserve Bank to secure the payment of benefits.
    (b) One comment disagrees generally with the requirement for post-
award security by coal mine construction employers, and the imposition 
of personal benefits liability on certain corporate officers if the 
employer fails to obtain security. The objection to post-award security 
is unfounded because the Black Lung Benefits Act authorizes it. Any 
operator of a coal mine, as defined by 30 U.S.C. 802(d), is required to 
obtain insurance or qualify as a self-insurer to ensure its financial 
ability to meet its potential benefits liabilities. 30 U.S.C. 933(a). 
Section 422(b) excepts certain employers engaged in coal mine 
construction or transportation from these requirements, provided they 
are not also operators of coal mines. 30 U.S.C. 932(b). The exception 
effectively permits these employers to confront their liabilities as 
they occur on a claim-by-claim basis, rather than anticipate funding 
for their liabilities through insurance or self-insuring. Section 
422(b), however, further states: ``Upon determination by the Secretary 
of the eligibility of the employee, the Secretary may require [a coal 
mine construction or transportation] employer to secure a bond or 
otherwise guarantee the payment of such benefits to the employee.'' 30 
U.S.C. 932(b). Although these employers need not insure themselves 
against prospective liability, they may be required to secure benefits 
once a claim is awarded. If the employer fails or refuses to obtain 
security for an existing award after being ordered to do so, that 
employer is no different than a coal mine operator who does not fulfill 
its legal obligation to insure or self-insure its potential liability 
for future awards. While the statute provides several coercive remedies 
against such employers, section 423(d)(1) also authorizes the 
Department to impose liability, in the case of a corporation, on its 
president, secretary and treasurer for any benefits which accrue during 
the period of the corporation's dereliction. No reason exists to treat 
corporate officers of a construction or transportation firm differently 
from corporate officers of a coal mine operator. In either case, the 
employer is legally required (by the statute or Secretary's order) to 
secure its liability, and has failed to satisfy that requirement. 
Section 423(d)(1) simply provides the Department with one tool to 
enforce the liable employer's obligation.
    The same commenter also states that proposed Sec. 725.606 addresses 
a nonexistent problem because the construction industry already 
complies with its obligations. The commenter's observation does not 
provide a legal basis for excluding construction companies from the 
employer community subject to security requirements imposed by statute. 
The original notice of proposed rulemaking, 62 FR 3367-3368 (Jan. 22, 
1997), describes the Department's objectives for improving and 
clarifying the operation of the security provisions. The possible 
absence of a significant problem does not relieve the Department of its 
responsibility to identify all parties' obligations under the Black 
Lung Benefits Act and to set forth more efficient procedures to enforce 
them.
    (c) One comment supports requiring the posting of security for the 
payment of benefits by coal mine construction and transportation 
employers.

Subpart J

20 CFR 725.701
    (a) A number of commenters objected to the Department's initial 
proposal governing the compensability of medical benefits, because it 
included a rebuttable presumption that if a miner receives treatment 
for a pulmonary disorder, that disorder is caused or aggravated by the 
miner's pneumoconiosis. 62 FR 3423 (Jan. 22, 1997). Several commenters 
argued that this presumption would impose significantly greater costs 
on responsible operators and result in the payment of medical bills 
related to smoking. Others argued that the Department had no authority 
to promulgate such a presumption and that the presumption was medically 
unsound. The Department disagrees and believes that the proposed 
presumption is both appropriate and necessary.
    In its initial notice of proposed rulemaking, the Department cited 
the Fourth Circuit's decision in Doris Coal Co. v. Director, OWCP, 938 
F.2d 492 (4th Cir. 1991), in support of its proposal to codify a 
rebuttable presumption that treatment that a miner receives for a 
pulmonary condition, as described in Sec. 725.701, represents treatment 
for the miner's pneumoconiosis and therefore is compensable. As 
proposed, this presumption would be available only to miners who have 
established their total disability due to pneumoconiosis arising out of 
coal mine employment and are therefore already entitled to monthly cash 
benefits. The presumption would also apply only to treatment, 
enumerated in the regulation, for a pulmonary disorder. The presumption 
could be rebutted by evidence demonstrating that the condition for 
which the miner received treatment was unrelated to, and was not 
aggravated by, the miner's pneumoconiosis.
    Since publication of the Department's initial notice of proposed 
rulemaking, the Sixth Circuit has also issued a decision addressing the 
compensability of medical expenses incurred as a result of treatment 
for totally disabling pneumoconiosis. In Glen Coal Co. v. Seals, 147 
F.3d 502 (6th Cir. 1998), a majority of the panel (Judges Dowd and 
Boggs) held that the administrative law judge and the Benefits Review 
Board

[[Page 55004]]

had erred in applying the Doris Coal presumption to a miner whose coal 
mine employment took place within the jurisdiction of the Sixth 
Circuit. Although Judge Dowd's majority opinion would have invalidated 
the presumption on a number of grounds, including its inconsistency 
with Congressional intent underlying the BLBA, see 147 F.3d at 513, 
Judge Boggs's concurrence (necessary for the majority's holding) did 
not extend so far. Instead, Judge Boggs specifically noted that he 
would ``agree with the dissent (and disagree with Judge Dowd) that it 
would not necessarily contravene Greenwich Collieries for the Secretary 
to adopt a regulation shifting the burden of production in the manner 
of Doris Coal.'' Id. at 517. Finally, Judge Moore's concurring and 
dissenting opinion would have upheld the Doris Coal presumption on 
deference grounds.
    Recently, the Fourth Circuit clarified the presumption it created 
in Doris Coal. In Gulf & Western Indus. v. Ling, __F.3d__, 1999 WL 
149851 (4th Cir. Mar. 19, 1999), the court held that the Doris Coal 
presumption does not shift the burden of persuasion to the employer to 
prove that the miner's respiratory or pulmonary treatment was not 
related to black lung disease. Rather, the burden of proving that the 
medical expense is covered by the black lung benefits award remains 
always on the miner. The Doris Coal presumption simply eases the 
miner's initial burden by allowing the miner to present a bill for 
treatment of his respiratory or pulmonary disorder or related symptoms. 
If the employer then

produces credible evidence that the treatment is rendered for a 
pulmonary disorder apart from those previously associated with the 
miner's disability, or is beyond that necessary to effectively treat 
a covered disorder, or is not for a pulmonary disorder at all, the 
mere existence of a medical bill, without more, shall not carry the 
day. The burden of persuading the factfinder of the validity of the 
claim remains at all times with the miner.

1999 WL 149851 at *5.
    The Department believes that black lung benefit claims adjudication 
should vary as little as possible from circuit to circuit, and 
consequently has proposed a regulatory presumption that would apply 
nationwide. Like any agency, however, the Department may only 
promulgate a regulatory presumption when there exists a rational 
connection between the proven facts and the presumed facts. Chemical 
Manufacturers Association v. Department of Transportation, 105 F.3d 
702, 705 (D.C. Cir. 1997); NLRB v. Baptist Hosp., Inc., 442 U.S. 773, 
787 (1979). The proposed Sec. 725.701 presumption would arise only 
after the miner establishes that he suffers from totally disabling 
pneumoconiosis arising out of coal mine employment, a fact that must be 
considered conclusively proven absent a successful request for 
modification from the responsible operator or fund. In addition, before 
invocation of the presumption, the miner must show that he received 
medical treatment within the scope of Sec. 725.701 for a respiratory or 
pulmonary condition. Thus, prior to invocation of this presumption, the 
miner has demonstrated by means of credible medical evidence that he 
suffers from a compensable total disability. In addition, the miner has 
established that he received treatment covered by the proposed 
regulation for a pulmonary disorder. The Department's proposal would 
presume only one fact: that the pulmonary treatment for which the miner 
seeks payment was for his already-established totally disabling 
pneumoconiosis.
    The Department's proposed definition of pneumoconiosis demonstrates 
the rational connection between the facts the miner must prove and the 
resulting presumption. Pursuant to proposed Sec. 718.201, which has 
been endorsed by the National Institute of Occupational Safety and 
Health, a miner who has established the existence of pneumoconiosis has 
necessarily established that he suffers from a ``chronic pulmonary 
disease or respiratory or pulmonary impairment significantly related 
to, or substantially aggravated by, dust exposure in coal mine 
employment.'' Sec. 718.201(b); see also 20 CFR 718.201 (1998). 
Consequently, any treatment for the miner's compromised respiratory or 
pulmonary condition suggests, even if it does not conclusively 
demonstrate, that the miner's previous dust exposure has contributed to 
the need for that treatment. In addition, the miner's proof that he is 
totally disabled due to pneumoconiosis establishes that his 
pneumoconiosis is a substantially contributing cause of his total 
disability. Sec. 718.204(c). This fact also suggests that the treatment 
of the miner's respiratory or pulmonary system is made necessary by his 
pneumoconiosis. Finally, the Department notes that it receives 12,000 
to 15,000 medical bills per week, most of which are for relatively 
small amounts, $25.00 to $75.00. The Department must process these 
claims in a cost effective and prompt manner. The Department believes 
that it would be unreasonable to require miners to prove that each 
treatment expense is for pneumoconiosis when: (1) Each miner has 
already proven that he is totally disabled by pneumoconiosis arising 
out of coal mine employment; (2) the bills are for treatment of a 
pulmonary disorder, and (3) the bills are generally for relatively 
small amounts. In such circumstances, the Department believes it 
appropriate to presume that the miner's treatment for a pulmonary 
disorder is treatment for pneumoconiosis. The Department also believes 
it appropriate to require coal mine operators to produce credible 
evidence that the disorder being treated is neither related to nor 
aggravated by pneumoconiosis in order to escape liability. The 
Department does not agree, however, that the presumption will require 
operators to pay for medical treatment attributable to smoking alone. 
Operators remain free to rebut the presumption in such cases with 
appropriate medical evidence.
    (b) The Department proposes to delete the reference in subsection 
(b) to ``ancillary pulmonary conditions.'' In light of the confusion 
reflected in Judge Dowd's majority opinion in Seals, and given the 
broad statutory and regulatory definition of the term 
``pneumoconiosis,'' the Department does not believe that this language 
is necessary. The proposed revision is not intended to narrow the scope 
of medical benefits available under the Black Lung Benefits Act. Under 
subsections (b) and (c), a broad range of medical services and supplies 
will be considered necessary for the treatment of a miner's 
pneumoconiosis. The proposed presumption in subsection (e) will further 
ensure that miners who have been determined to be totally disabled due 
to pneumoconiosis are compensated for any medical service or supply 
necessary for the treatment of a pulmonary condition unless the 
responsible operator or fund can prove that the medical service or 
supply was not for a covered pulmonary disorder as defined in 
Sec. 718.201. In order to further clarify the Department's intent, the 
Department proposes to revise the language in subsection (e) by 
replacing the word ``treatment'' with the phrase, ``medical service or 
supply.'' This change is intended to ensure that the subsection (e) 
presumption covers any medical supply or service that may be considered 
necessary under subsections (b) and (c).
    The Department also proposes to amend the language in subsection 
(f) to clarify its intent. Evidence which is inconsistent with the 
established facts underlying the miner's entitlement to benefits cannot 
be used to show that the treatment is not compensable. An

[[Page 55005]]

attempt to use such evidence in this context would amount to 
impermissible relitigation of facts which have been finally determined. 
In determining whether the treatment is compensable, a treating 
physician's opinion may be entitled to controlling weight pursuant to 
Sec. 718.104(d). In addition, a finding that a particular medical 
service or supply is not compensable shall not otherwise affect the 
miner's entitlement to benefits.

20 CFR Part 726--Black Lung Benefits; Requirements for Coal Mine 
Operators' Insurance

Subpart A--General

20 CFR 726.8
    (a) In the initial notice of proposed rulemaking, the Department 
proposed new definitions of ``employ'' and ``employment'' which apply 
to both Part 725 and 726. See 62 FR 3410 (Sec. 725.493(a)(1)), 3426 
(Sec. 726.8(d)) (Jan. 22, 1997). The definitions were identical. For 
the reasons set forth in the response to comments concerning 
Sec. 725.493(a)(1), the Department has determined that more specific 
language defining ``employment'' is appropriate to clarify its purpose. 
The same change is incorporated into Sec. 726.(8)(d) for the same 
reason.
    (b) One comment contends that section 726.8(d) is ``illegally'' 
retroactive in operation and creates unfunded liabilities for insurance 
carriers by expanding coverage. For the reasons set forth in the 
response to comments concerning Sec. 725.2, the Department does not 
believe that the retroactive application of regulatory changes is 
prohibited, or the instrument for the creation of additional liability.
    The same commenter also states that the proposed regulatory 
definitions intrude on insurance functions reserved for the states. 
Because the commenter does not cite any legal authority or identify 
which state functions the proposed regulation affects, the Department 
is unable to determine the commenter's precise concerns. Moreover, the 
Seventh Circuit has held that the Black Lung Benefits Act 
``specifically relates to the business of insurance and therefore does 
not implicate the McCarran-Ferguson Act,'' 15 U.S.C. 1012, which 
confers primacy on state law for the regulation of the insurance 
industry unless a conflicting federal statute specifically provides 
otherwise. Lovilia Coal Co. v. Williams, 143 F.3d 317, 325 (7th Cir. 
1998). The commenter's objection therefore provides no basis for the 
further revision of this regulation.
    (c) Two comments state that the proposed definitions are overbroad 
and make impossible the identification of which employees are covered 
by an insurance policy. The Department disagrees. The definition of 
``employee'' must be read in context with the definition of ``miner'' 
in Sec. 725.202. Only coal miners (and their survivors) are entitled to 
benefits under the Black Lung Benefits Act, and only those individuals 
are of concern to an insurance carrier writing a policy under the Act. 
In determining whether a particular employee is covered by the 
insurance policy, the insurer must determine whether the individual is 
a ``miner'' as defined by the Act and Sec. 725.202. The insurer 
therefore must conduct a thorough investigation of the employer's 
business, the nature of the contacts with the coal mining industry, and 
the type of work each employee performs. This information will provide 
the basis for calculating the premium necessary for full coverage of 
the employer's potential liabilities. The burden of covering the 
responsible operator's liability and obtaining an appropriate premium 
rests on the insurer. See Lovilia Coal Co. v. Williams, 143 F.3d 317, 
323 (7th Cir. 1998) (holding that insurance carrier must cover 
operator's entire liability under the Act and ``bears the burden of 
collecting proper premiums for all covered miners.''). Finally, the 
Department notes that the goal of broad insurance coverage for 
employees implements Congress' express intent to hold the coal mine 
operator community liable for individual claims to the maximum extent 
possible. See S. Rep. No. 95-209, reprinted in Comm. On Education and 
Labor, House of Representatives, 96th Cong., ``Black Lung Benefits 
Reform Act and Black Lung Benefits Revenue Act of 1977'' (Comm. Print) 
at 612. Section 726.8(d) reflects the Department's policy to vigorously 
effectuate that intent. Because an insurance carrier assumes the 
responsibility for benefits ascribed to its insured operator, that 
responsibility must encompass every employee of the operator who 
qualifies as an eligible miner under the Act. Williams, 143 F.3d at 
323; see also National Mines Corp. v. Carroll, 64 F.3d 135, 140 (3d 
Cir. 1995); Tazco, Inc. v. Director, OWCP, 895 F.2d 949, 951 (4th Cir. 
1990).

Subpart C

20 CFR 726.3
    Section 726.3 was not among the regulations which the Department 
opened for comment in its previous notice of proposed rulemaking. 62 FR 
3350 (Jan. 22, 197). In reviewing the current proposal for publication, 
the Office of the Federal Register requested that the Department revise 
paragraph (b) in order to clarify how cases will be treated when the 
regulation in Part 726 appear to conflict with regulations incorporated 
from 725. This revision is not intended to make any substantive change 
in the regulation. In addition, the Department is removing references 
to Parts 715 and 720 from paragraph (a). Those parts were repealed in 
1978, 43 FR 36772 (Aug. 18, 1978), and the regulations they contained 
should no longer be considered applicable to Part 726.

Subpart C

20 CFR 726.203
    Section 726.203 was not among the regulations which the Department 
opened for comment in its previous notice of proposed rulemaking. 62 FR 
3341 (Jan. 22, 1997). At the Washington, D.C. hearing, however, the 
Department heard testimony indicating that the insurance industry has 
used a different version of the endorsement contained in subsection (a) 
since 1984. An insurance industry representative testified that the 
change was ``acknowledged by the department as language acceptable for 
securing workers compensation under the federal Act.'' Transcript, 
Hearing on Proposed Changes to the Black Lung Program Regulations, July 
22, 1997, p. 127 (testimony of Robert Dorsey). In its written comments, 
the insurance industry noted that after notification of changes in the 
insurance policy language, ``the Department agreed that the new 
endorsements were acceptable.'' The version provided by the insurance 
industry states as follows:
    This endorsement applies only to work in a state shown in the 
Schedule and subject to the Federal Coal Mine Health and Safety Act of 
1969 (30 USC Sections 931-942). Part One (Workers Compensation 
Insurance) applies to that work as though that state were shown in item 
3.A. of the Information Page.
    The definition of workers compensation law includes the Federal 
Coal Mine Health and Safety Act of 1969 (30 U.S.C. Sections 931-942) 
and any amendment to that law that is in effect during the policy 
period.
    Part One (Workers Compensation Insurance), section A.2., How This 
Insurance Applies, is replaced by the following:

    Bodily injury by disease must be caused or aggravated by the 
conditions of your employment. The employee's last day of last 
exposure to the conditions causing or aggravating such bodily injury 
by disease must occur during the policy period or, when the last 
exposure occurred prior to July 1, 1973, a claim based on that 
disease must be

[[Page 55006]]

first filed against you during the policy period shown in item 2 of 
the Information Page.

Schedule
State

    Following the hearing, the Department searched its records. 
Although those records reflect a meeting with a representative of the 
insurance industry in 1984, the Department was unable to find any 
document authorizing the use of the different endorsement. If the 
insurance industry has such a document in its files, the Department 
requests that it send it to James L. DeMarce at the address listed in 
this notice. In addition, to allow thorough evaluation of the 
endorsement the industry now suggests, the insurance industry should 
supply the Department with a copy of the insurance policy to which the 
endorsement is attached. Finally, although it is not currently 
proposing revision of Sec. 726.203, the Department requests comment on 
the possible use of this endorsement. In preparing those comments, 
individuals should take note of the Department's requirement in 
Sec. 726.205 that endorsements other than those provided by 
Sec. 726.203 may be used provided they do not ``materially alter or 
attempt[] to alter an operator's liability for the payment of any 
benefits under the Act * * *'' 20 CFR 726.205.
    Drafting Information, this document was prepared under the 
direction and supervision of Bernard Anderson, Assistant Secretary of 
Labor for Employment Standards.
    The principal authors of this document are Rae Ellen James, Deputy 
Associate Solicitor; Richard Seid, Counsel for Administrative 
Litigation and Legal Advice; and Michael Denney, Counsel for 
Enforcement, Black Lung Benefits Division, Office of the Solicitor, 
U.S. Department of Labor. Personnel from the Division of Coal Mine 
Workers' Compensation, Office of Workers' Compensation Programs, 
Employment Standards Administration, U.S. Department of Labor, assisted 
in the preparation of the document.

Executive Order 12866

    The Office of Information and Regulatory Affairs of the Office of 
Management and Budget has determined that the Department's proposed 
rule represents a ``significant regulatory action'' under section 
3(f)(4) of Executive Order 12866 and has reviewed the rule.

Unfunded Mandates Reform Act

    For purposes of the Unfunded Mandates Reform Act of 1995, as well 
as E.O. 12875, this rule does not include any federal mandate that may 
result in increased expenditures by State, local and tribal 
governments, or increased expenditures by the private sector of more 
than $100 million.

Paperwork Reduction Act

    The proposed changes would establish no new record keeping 
requirements. Moreover, they seek to reduce the volume of medical 
examination and consultants' reports which are currently created solely 
for the purpose of litigation by limiting the amount of such medical 
evidence which will be admissible in black lung proceedings.

Regulatory Flexibility Act, as Amended

    The Regulatory Flexibility Act (``RFA'') was enacted by Congress in 
1980 ``to encourage administrative agencies to consider the potential 
impact of nascent federal regulations on small businesses.'' Associated 
Fisheries of Maine, Inc. v. Daley, 127 F.3d 104, 111 (1st Cir. 1997). 
Unless the agency is able to certify that the rule will not have ``a 
significant economic effect on a substantial number of small 
entities,'' 5 U.S.C. 605, each agency that publishes a notice of 
proposed rulemaking must prepare an ``initial regulatory flexibility 
analysis'' describing the impact of the proposed rule on small 
entities. 5 U.S.C. 603(a). That analysis, or a summary of the analysis, 
must be published in the Federal Register when the notice of proposed 
rulemaking is published, and a copy of the analysis must be sent to the 
Chief Counsel for Advocacy of the Small Business Administration.
    In its initial notice of proposed rulemaking, the Department 
certified that the proposed revisions would not have a significant 
effect on a substantial number of small businesses. 62 FR 3371-73 (Jan. 
22, 1997). The Department's certification was criticized by both the 
coal mining industry and the Small Business Administration's Office of 
Advocacy. Industry argued that the Department had grossly 
underestimated the effect of the proposed rule. The Office of Advocacy 
observed that the Department had not used the size standards 
established by the Small Business Administration, and that the 
Department did not provide a factual basis for its certification. In 
particular, the Office of Advocacy took issue with the Department's 
interpretation of the term ``significant economic effect.''
    In light of the concerns raised by the commenters, the Department 
has determined that an initial regulatory flexibility analysis is 
appropriate. The RFA mandates that each analysis contain certain 
components: (1) a statement of the reasons for issuing the proposed 
rule; (2) a statement of the objectives of, and legal basis for, the 
proposed rule; (3) a description and, where feasible, an estimate of 
the number of small businesses to which the rule will apply; (4) a 
description of projected reporting, recordkeeping, and other compliance 
requirements of the proposed rule; and (5) an identification of any 
rules that overlap, duplicate, or conflict with the proposed rule. 5 
U.S.C. 603(a). Finally, the analysis must contain a description of 
significant alternatives to the rule that accomplish the stated 
objectives and minimize the significant economic impact on small 
businesses, including the establishment of different compliance 
requirements or exemptions for small businesses. 5 U.S.C. 603(b). In 
determining the effects of a proposed rule, or alternatives to the 
proposed rule, ``an agency may provide either a quantifiable or 
numerical description of the effects * * * or more general descriptive 
statements if quantification is not practicable or reliable.'' 5 U.S.C. 
607. Once the analysis has been published in the Federal Register, 
either in full or in summary form, the RFA also requires administrative 
agencies to assure that small businesses have a full opportunity to 
participate in the rulemaking by providing them with additional 
notification. 5 U.S.C. 609.

Reasons for, and Objectives of, the Proposed Rule

    The Department's proposal is intended to update the regulations 
that implement that Black Lung Benefits Act. The Act provides both 
monetary and medical benefits to miners who are totally disabled by 
pneumoconiosis arising out of coal mine employment, and monthly 
monetary benefits to the survivors of miners who die as a result of the 
disease. These regulations establish: (1) the procedures used to 
process and adjudicate benefit applications (Part 725); (2) the 
criteria used to determine whether applicants are eligible for benefits 
(Parts 718 and 727); (3) the requirements for coal mine operators who 
must secure the payment of benefits (Part 726); and (4) the standards 
for approving state workers' compensation programs (Part 722). The 
Department has proposed revising these regulations in order to 
accomplish several goals:
    (1) A substantial number of the proposed rules would simply codify 
decisions by the courts of appeals and the Benefits Review Board. In 
many cases, these decisions were issued by courts with jurisdiction 
over the states

[[Page 55007]]

in which most of the country's coal mining takes place, and thus 
already govern the adjudication of a majority of claims. In order to 
make sure all interested parties are aware of these decisions, and in 
particular to ensure that claimants who are not represented by counsel 
are not disadvantaged by being unaware of these decisions, the 
Department is proposing to codify these decisions in its implementing 
regulations. Codification of court decisions in rules of nationwide 
applicability will ensure uniform treatment of the parties. The 
Department's proposed revisions also codify changes to statutes other 
than the Black Lung Benefits Act which affect the Department's 
administration of the Act, including changes to the Social Security Act 
governing garnishment, and the statute governing the collection of 
debts owed the federal government.
    (2) In addition, the Department is proposing these revisions to 
make the adjudication of claims a more equitable process, and to ensure 
that the affected public perceives the process as fair. For example, 
the Department has proposed limiting the amount of documentary medical 
evidence parties to a claim may submit in order to encourage the 
parties to focus on the quality of the medical evidence they develop 
instead of its quantity. The Department has also proposed requiring 
that the factfinder recognize certain factors that may make the opinion 
of the miner's treating physician worthy of more weight. Similarly, the 
proposal would ensure that claimants who receive overpayments are 
treated equally regardless of whether the overpayment was made by the 
Black Lung Disability Trust Fund or a coal mine operator. Finally, the 
Department has proposed revisions to the rules governing attorneys' 
fees in an effort to make attorneys more willing to represent black 
lung claimants.
    (3) Several of the proposed revisions are designed to simplify the 
regulatory language and clarify the Department's original intent when 
the regulations were first promulgated. These proposals include 
ensuring the uniform application of the quality standards to medical 
evidence developed in connection with a black lung benefits claim and 
refining the definitions of key terms such as ``miner'' and ``one 
year.'' The Department has also proposed revisions to the regulations 
governing the eligibility of dependents and survivors in order to 
clarify the statute and insure implementation of Congressional intent.
    (4) The Department has proposed several measures designed to 
protect the Black Lung Disability Trust Fund, which pays claimants 
benefits when no coal mine operator or insurer may be held liable. 
Specifically, the Department proposes to revise the regulations 
governing the imposition of civil money penalties on coal mine 
operators that fail to secure the payment of benefits as required by 
the Act, either by purchasing commercial insurance or by qualifying as 
a self-insurer. The Department has also proposed revisions to the 
process used to identify the party responsible for the payment of 
benefits, including changes to regulations governing the submission of 
evidence relevant to operator liability and the substantive criteria 
used to determine such liability. Finally, the Department has proposed 
revising the process by which uninsured coal mine operators, including 
coal mine construction and transportation companies, may be compelled 
to post security once they have been found liable for the payment of an 
individual claim.
    (5) A number of the regulatory proposals are designed to improve 
the services the Department provides to parties to black lung benefits 
claims. These proposals include revisions that streamline the 
adjudication of claims, for example, by defining the parties' 
obligation to attend an informal conference. They also include 
revisions intended to ensure that beneficiaries receive all of the 
benefits to which they are entitled in a timely manner. The Department 
has proposed eliminating or replacing outdated regulations, such as 
those governing the Department's certification of state workers' 
compensation programs.
    (6) Finally, the Department is proposing revisions that take into 
account changes that have occurred over the past 20 years in the 
diagnosis and treatment of pneumoconiosis. For example, the Department 
has proposed revising the definition of pneumoconiosis to recognize the 
progressive nature of the disease and the possibility that a miner's 
coal mine dust exposure may have contributed to the development of 
either obstructive or restrictive lung disease. The Department has also 
proposed revisions in the standards for administering pulmonary 
function tests and in the adjudication of the compensability of medical 
expenses.

Legal Basis for the Proposed Rule

    The Black Lung Benefits Act grants the Secretary broad authority to 
issue regulations. Section 422(a) of the Act provides that ``[i]n 
administering this part [Part C of the Act], the Secretary is 
authorized to prescribe in the Federal Register such additional 
provisions * * * as [s]he deems necessary to provide for the payment of 
benefits by such operator to persons entitled thereto as provided in 
this part and thereafter those provisions shall be applicable to such 
operator.'' 30 U.S.C. 932(a). Section 426(a) of the Act similarly 
authorizes the Secretary to ``issue such regulations as [she] deems 
appropriate to carry out the provisions of this title.'' 30 U.S.C. 
936(a). The Act also authorizes the Secretary to promulgate regulations 
on specific subjects, such as criteria for medical tests, 30 U.S.C. 
902(f)(1)(D), standards for assigning liability to coal mine operators, 
30 U.S.C. 932(h), and regulations governing insurance contracts, 30 
U.S.C. 933(b)(3). In addition, the Department, like any other 
administrative agency, possesses the inherent authority to promulgate 
regulations in order to fill gaps in the legislation that it is 
responsible for administering. Chevron v. Natural Resources Defense 
Council, 467 U.S. 837, 843-44 (1984); Pauley v. Bethenergy Mines, Inc., 
501 U.S. 680, 696 (1991).

Small Businesses to which the Rule will Apply

    The Regulatory Flexibility Act requires an administrative agency to 
describe and, where feasible, estimate the number of small entities to 
which a proposed rule will apply. 5 U.S.C. 603(b)(5). Small entities 
include small businesses, small organizations, and small governmental 
jurisdictions. 5 U.S.C. 601(6). The Black Lung Benefits Act, however, 
does not seek to regulate small organizations or small governmental 
jurisdictions. Accordingly, this analysis is limited to the effect of 
the proposed rule on small businesses. By its terms, the Black Lung 
Benefits Act imposes obligations on coal mine operators. 30 U.S.C. 
932(b) (``each such operator shall be liable for and shall secure the 
payment of benefits * * *.''). An operator is defined, for purposes of 
the black lung benefits program, as ``any owner, lessee, or other 
person who operates, controls, or supervises a coal mine, or any 
independent contractor performing services or construction at such 
mine.'' Sec. 725.491(a)(1); 30 U.S.C. 802(d).
    In assessing the impact of the proposed rule on operators that may 
be considered small businesses, the RFA requires an agency to use the 
definitions of the term ``small business'' used by the Small Business 
Administration unless the agency, after consultation with SBA's Office 
of Advocacy and opportunity for public comment, establishes its own 
definition. 5 U.S.C. 601(3). SBA's definitions, set forth in 13

[[Page 55008]]

CFR 121.201, are grouped according to Standard Industrial Codes (SICs) 
used by the Bureau of the Census. For purposes of identifying the small 
businesses to which the Black Lung Benefits Act and its implementing 
regulations apply, two categories are applicable: Coal Mining (SIC 
Codes 1220, 1221, 1222, 1230, and 1231) and Coal Mining Services (SIC 
Codes 1240 and 1241). SBA defines a small business in the coal mining 
industry as one with fewer than 500 employees, and a small business in 
the coal mining services industry as one with less than $5 million 
annually in receipts.
    The Department has prepared an extensive economic analysis of the 
effect of the proposed rule on small businesses in the coal mining 
industry. A copy of that analysis is available on request from James L. 
DeMarce, Director, Division of Coal Mine Workers' Compensation, Room C-
3520, Frances Perkins Building, 200 Constitution Ave., N.W., 
Washington, DC 20210. In the analysis, the Department specifically 
requests comments on a number of the assumptions underlying its 
conclusion. These include the relationship between increases in the 
claims approval rate and increases in insurance premiums; the 
relationship between increased medical costs and increases in insurance 
premiums; and the extent to which promulgation of these revisions will 
result in an increase in the number of claims filed.
    The Department's analysis, using data maintained by the Mine Safety 
and Health Administration, indicates that, in 1995, 2,811 of 2,822 
establishments, consisting of mines and preparation plants, employed 
less than 500 people (Exhibit C, total of all establishments employing 
less than 500 people). Of these establishments, 1,581 were associated 
with mining bituminous coal at a surface mine, 1009 mined bituminous 
coal underground, and 221 mined anthracite coal. When individual 
establishments are aggregated into parent companies, the Department 
found that 898 of 933 companies employed less than 500 people, and thus 
meet SBA's definition of a small business (Exhibit D).
    It is not feasible to estimate precisely the number of independent 
contractors engaged in coal-mine related activities that meet SBA's 
definition, for example, those involved in coal mine construction and 
coal transportation. Data provided the Department by SBA (also 
available at http://www.sba.gov/ADVO/) with respect to firms in the 
coal mining services industry does not permit the direct identification 
of specific firms with less than $5 million annually in receipts. The 
data lists firms in categories according to the number of employees 
(e.g., 1-4, 5-9), and provides the total estimated annual receipts for 
all of the firms in each category. Thus, at best, the data allows only 
an estimate of the average annual receipts of each firm within a given 
category. In the case of firms engaged in coal mining services, SBA 
data suggests that firms with 20 or more employees have average annual 
receipts that exceed the SBA cutoff. For example, 9 firms with between 
20 and 24 employees had total annual estimated receipts in 1994 of 
$48,240,000. Thus, the average annual receipts of each firm in this 
category exceeds $5 million. Because 209 of the 275 firms engaged in 
coal mining services have fewer than 20 employees, the Department 
estimates that no more than 209 coal mining services firms will be 
affected by the proposed rule. The Department notes that this estimate 
may not include all coal mine construction and coal transportation 
companies. Because coal mine construction or coal transportation may 
not be the primary source of income for these companies, they may not 
appear in the SBA's data under the SIC Code covering coal mining 
services. The Department cannot estimate the number of firms that are 
excluded from SBA's data.

Projected Reporting, Recordkeeping, and Other Compliance Requirements 
of the Proposed Rule

    The revisions proposed by the Department to its black lung 
regulations will not impose any additional reporting or recordkeeping 
requirements on small businesses. The analysis of additional costs that 
follows is derived from the Department's extensive economic analysis of 
the effect of the proposed rule on small businesses in the coal mining 
industry. References are to exhibits that accompany that report. The 
costs associated with the proposed rule involve possible increases in 
benefit payments, including monetary disability benefits and medical 
benefits, and increases in transaction costs incurred in the defense of 
claims under the Act. These costs will be imposed on coal mine 
operators either directly, in the case of coal mine operators that 
self-insure their obligations under the Act, or indirectly, in the case 
of coal mine operators that purchase commercial insurance. The latter 
group will absorb the increased costs through increases in insurance 
premiums. Because self-insurers are required to have a net worth of 
more than $10 million, and are able to take advantage of economies of 
scale in absorbing these costs, the Department's economic analysis 
focused on companies with commercial insurance. Increased costs on 
commercially insured operators will be higher than those imposed on 
self-insurers (which would have purchased commercial insurance if it 
were less expensive) and thus will overstate the costs to the coal 
mining industry as a whole.
    The Department has concluded that insurance rates, typically 
between $.56 (for bituminous coal operators in Pennsylvania) and $5.38 
(for anthracite coal operators in Pennsylvania) per $100 of payroll 
(Exhibit F), may be expected to rise by a total of 41.7 percent in the 
first two years and 39.3 percent in the long term. The Department has 
calculated the percentage increase in price that operators in a 
representative sample of states will need to charge in order to cover 
increased cost of the Department's proposed revisions. That cost ranges 
from .35 % (for West Virginia operators with 50 to 100 employees) to 
3.3 % (for anthracite operators) (Exhibit O). The Department concludes 
that these price increases will fall most heavily on coal mine 
operators with less than 20 employees. The increases will clearly be 
significant, and although a number of small mine operators will be able 
to recoup their costs, less well-positioned bituminous operators and 
contract mine operators will face the greatest difficulty in doing so. 
As a result, some operators in those groups may be forced to suspend 
operations.
    In addition, the proposed rule requires several specific actions on 
the part of coal mine operators. Operators that do not purchase 
commercial insurance to secure their liability for black lung benefits, 
including both operators that are authorized to self-insure and 
operators that are not required to obtain insurance, will be required 
to respond more promptly to notice from the Department that a claim has 
been filed by one of their former employees. See Sec. 725.407. 
Specifically, they will have 90 days from receipt of notice to supply 
the Department with information relevant to their employment of the 
miner. Operators that have not secured their liability will also be 
required to post security in the event that they are held liable for 
the payment of benefits on an individual claim. See Sec. 725.606. 
Operators that have been authorized to self-insure their liability 
under the Act will be required to maintain security for their claims 
even after they leave the coal mining business. See Sec. 726.114. 
Finally, the Department's revisions are intended to enhance its ability 
to enforce civil

[[Page 55009]]

money penalties against operators that fail to comply with the Act's 
security requirements, and thus may impose additional costs on 
operators that are not currently in compliance with the Act's 
requirements. See Part 726, Subpart D. The remaining revisions do not 
impose on operators any additional compliance requirements beyond those 
in the Department's current regulations.

Rules that Overlap, Duplicate, or Conflict with the Proposed Rule

    There are no other rules of which the Department is aware that 
overlap, duplicate, or conflict with the Department's proposed rule.

Significant Alternatives to the Rule

    The Regulatory Flexibility Act requires the Department to consider 
alternatives to the rule that would minimize any significant economic 
impact on small businesses without sacrificing the stated objectives of 
the rule. 5 U.S.C. 603(b). The Black Lung Benefits Act places severe 
constraints on the Department's ability to target its proposed rule in 
order to minimize its impact on small business. The use of SBA's size 
standard would require the Department to seek ways of protecting more 
than 96 percent of the companies in the coal mining industry (898 of 
the 933 companies). Even using a 20-employee size standard, and thus 
focusing attention on the operators most likely to face significant 
additional costs, the Department's ability to reduce the economic 
impact of the proposal is limited.
    Most of the revisions proposed by the Department affect the 
criteria used to determine a claimant's entitlement to benefits. The 
Black Lung Benefits Act requires that benefits be paid to each miner 
who is totally disabled as a result of pneumoconiosis arising out of 
coal mine employment, 30 U.S.C. 922(a)(1), and each dependent survivor 
of a miner who died due to pneumoconiosis or, if the claim was filed 
before January 1, 1982, was totally disabled at the time of death by 
the disease. 30 U.S.C. 922(a)(2), (3), (5). As an initial matter, then, 
the Act simply does not permit the Department to adjust its entitlement 
regulations based on the size of the miner's former employer. In 
effect, the Department cannot deny a claim because the miner was 
employed by a small business.
    The Department has proposed revisions to the regulations governing 
the identity of the party liable for the payment of benefits. Like the 
current regulations, the Department's proposal would impose liability 
on the coal mine operator that most recently employed the miner for a 
period of not less than one year, provided that the operator meets 
other specified criteria. Among these criteria is the operator's 
financial ability to assume responsibility for the payment of benefits. 
See Sec. 725.494(e). Because coal mine operators are required to secure 
their liability under the Act by purchasing commercial insurance or by 
self-insuring, however, this condition typically affects only two 
classes of operators: those that have failed to comply with the Act's 
security requirement, and those construction and transportation 
employers that are not subject to the security requirement. Such a 
company may avoid liability for a particular claim by demonstrating 
that it is financially incapable of assuming the payment of monthly and 
retroactive benefits.
    Although the use of a financial capability standard might be 
considered a benefit to small businesses, using either SBA's definition 
or the 20-employee cutoff, the Department does not believe that it can 
provide any other similar benefit. In theory, of course, the Department 
could specifically limit liability under the Act in cases involving 
operators below a certain size. To do so, however, the Department would 
have to increase the obligations borne by larger coal mine operators 
(who may be the miner's second or third most recent employer) or the 
Black Lung Disability Trust Fund. Such a result, however, would violate 
Congress's clear intent: ``It is further the intention of this section, 
with respect to claims related to which the miner worked on or after 
January 1, 1970, to ensure that individual coal operators rather than 
the trust fund bear the liability for claims arising out of such 
operator's mines, to the maximum extent feasible.'' S. Rep. 209, 95th 
Cong., 1st Sess. 9 (1977), reprinted in House Comm. On Educ. And Labor, 
96th Cong., Black Lung Benefits Reform Act and Black Lung Benefits 
Revenue Act of 1977, 612 (Comm. Print 1979).
    One area in which the Department may appropriately impose lesser 
costs on small businesses is the assessment of civil money penalties 
for failure to secure the payment of benefits. The Act merely provides 
that operators that fail to secure their liability are subject to a 
civil money penalty of up to $1,000 a day. The current regulations 
authorize the imposition of the ``maximum penalty allowed'' in the 
absence of mitigating circumstances. 20 CFR 725.495(d). By contrast, 
the Department's proposed regulations recognize that smaller companies 
may cause less harm by failing to secure the payment of benefits. The 
Department's proposal therefore establishes different base penalty 
amounts for operators who fail to insure, depending on the number of 
their employees. Thus, where the Act permits the Department to exercise 
flexibility with regard to small business, the Department has done so.
    The Department invites comment from interested parties, 
particularly coal mine operators that are considered small businesses, 
as to other possible means of reducing the financial impact of the 
proposed rules on the small business community. Commenters should bear 
in mind that the fundamental purpose of the Black Lung Benefits Act is 
to provide benefits to disabled miners and their survivors, and that 
all applicants and beneficiaries must be treated fairly.

List of Subjects in 20 CFR Parts 718, 722, 725, 726, 727.

    Black lung benefits, Lung disease, Miners, Mines, Workers' 
compensation, X-rays.

    Signed at Washington, D.C., this 15th day of September, 1999.
Bernard Anderson,
Assistant Secretary for Employment Standards.

    For the reasons set forth in the preamble, 20 CFR Chapter VI is 
proposed to be amended as follows:
    1. The authority citation for part 718 continues to read as 
follows:

    Authority: 5 U.S.C. 301, Reorganization Plan No. 6 of 1950, 15 
FR 3174, 30 U.S.C. 901 et seq., 902(f), 925, 932, 934, 936, 945; 33 
U.S.C. 901 et seq., 42 U.S.C. 405, Secretary's Order 7-87, 52 FR 
48466, Employment Standards Order No. 90-02.

    2. Part 718 is proposed to be amended by removing subpart E, 
revising subparts A through D, revising Appendices A and C, and 
revising the text of Appendix B (the tables, B1 through B6, in Appendix 
B remain unchanged):

PART 718--STANDARDS FOR DETERMINING COAL MINERS' TOTAL DISABILITY 
OR DEATH DUE TO PNEUMOCONIOSIS

Subpart A--General

Sec.
718.1  Statutory provisions.
718.2  Applicability of this part.
718.3  Scope and intent of this part.
718.4  Definitions and use of terms.

Subpart B--Criteria for the Development of Medical Evidence

718.101  General.
718.102  Chest roentgenograms (X-rays).
718.103  Pulmonary function tests.
718.104  Report of physical examinations.
718.105  Arterial blood-gas studies.
718.106  Autopsy; biopsy.

[[Page 55010]]

718.107  Other medical evidence.

Subpart C--Determining Entitlement to Benefits

718.201  Definition of pneumoconiosis.
718.202  Determining the existence of pneumoconiosis.
718.203  Establishing relationship of pneumoconiosis to coal mine 
employment.
718.204  Total disability and disability causation defined; criteria 
for determining total disability and total disability due to 
pneumoconiosis.
718.205  Death due to pneumoconiosis.
718.206  Effect of findings by persons or agencies.

Subpart D--Presumptions Applicable to Eligibility Determinations

718.301  Establishing length of employment as a miner.
718.302  Relationship of pneumoconiosis to coal mine employment.
718.303  Death from a respirable disease.
718.304  Irrebuttable presumption of total disability or death due 
to pneumoconiosis.
718.305  Presumption of pneumoconiosis.
718.306  Presumption of entitlement applicable to certain death 
claims.
Appendix A to Part 718--Standards for Administration and 
Interpretation of Chest Roentgenograms (X-rays)
Appendix B to Part 718--Standards for Administration and 
Interpretation of Pulmonary Function Tests. Tables B1, B2, B3, B4, 
B5, B6
Appendix C to Part 718--Blood Gas Tables

Subpart A--General


Sec. 718.1  Statutory provisions.

    (a) Under title IV of the Federal Coal Mine Health and Safety Act 
of 1969, as amended by the Black Lung Benefits Act of 1972, the Federal 
Mine Safety and Health Amendments Act of 1977, the Black Lung Benefits 
Reform Act of 1977, the Black Lung Benefits Revenue Act of 1977, the 
Black Lung Benefits Amendments of 1981, and the Black Lung Benefits 
Revenue Act of 1981, benefits are provided to miners who are totally 
disabled due to pneumoconiosis and to certain survivors of a miner who 
died due to or while totally or partially disabled by pneumoconiosis. 
However, unless the miner was found entitled to benefits as a result of 
a claim filed prior to January 1, 1982, benefits are payable on 
survivors' claims filed on or after January 1, 1982, only when the 
miner's death was due to pneumoconiosis, except where the survivor's 
entitlement is established pursuant to Sec. 718.306 on a claim filed 
prior to June 30, 1982. Before the enactment of the Black Lung Benefits 
Reform Act of 1977, the authority for establishing standards of 
eligibility for miners and their survivors was placed with the 
Secretary of Health, Education, and Welfare. These standards were set 
forth by the Secretary of Health, Education, and Welfare in subpart D 
of part 410 of this title, and adopted by the Secretary of Labor for 
application to all claims filed with the Secretary of Labor (see 20 CFR 
718.2, contained in the 20 CFR, part 500 to end, edition revised as of 
April 1, 1979). Amendments made to section 402(f) of the Act by the 
Black Lung Benefits Reform Act of 1977 authorize the Secretary of Labor 
to establish criteria for determining total or partial disability or 
death due to pneumoconiosis to be applied in the processing and 
adjudication of claims filed under part C of title IV of the Act. 
Section 402(f) of the Act further authorizes the Secretary of Labor, in 
consultation with the National Institute for Occupational Safety and 
Health, to establish criteria for all appropriate medical tests 
administered in connection with a claim for benefits. Section 413(b) of 
the Act authorizes the Secretary of Labor to establish criteria for the 
techniques to be used to take chest roentgenograms (X-rays) in 
connection with a claim for benefits under the Act.
    (b) The Black Lung Benefits Reform Act of 1977 provided that with 
respect to a claim filed prior to April 1, 1980, or reviewed under 
section 435 of the Act, the standards to be applied in the adjudication 
of such claim shall not be more restrictive than the criteria 
applicable to a claim filed on June 30, 1973, with the Social Security 
Administration, whether or not the final disposition of the claim 
occurs after March 31, 1980. All such claims shall be reviewed under 
the criteria set forth in part 727 of this title (see 20 CFR 725.4(d)).


Sec. 718.2  Applicability of this part.

    This part is applicable to the adjudication of all claims filed 
after March 31, 1980, and considered by the Secretary of Labor under 
section 422 of the Act and part 725 of this subchapter. If a claim 
subject to the provisions of section 435 of the Act and subpart C of 
part 727 of this subchapter (see 20 CFR 725.4(d)) cannot be approved 
under that subpart, such claim may be approved, if appropriate, under 
the provisions contained in this part. The provisions of this part 
shall, to the extent appropriate, be construed together in the 
adjudication of all claims.


Sec. 718.3  Scope and intent of this part.

    (a) This part sets forth the standards to be applied in determining 
whether a coal miner is or was totally, or in the case of a claim 
subject to Sec. 718.306 partially, disabled due to pneumoconiosis or 
died due to pneumoconiosis. It also specifies the procedures and 
requirements to be followed in conducting medical examinations and in 
administering various tests relevant to such determinations.
    (b) This part is designed to interpret the presumptions contained 
in section 411(c) of the Act, evidentiary standards and criteria 
contained in section 413(b) of the Act and definitional requirements 
and standards contained in section 402(f) of the Act within a coherent 
framework for the adjudication of claims. It is intended that these 
enumerated provisions of the Act be construed as provided in this part.


Sec. 718.4  Definitions and use of terms.

    Except as is otherwise provided by this part, the definitions and 
usages of terms contained in Sec. 725.101 of subpart A of part 725 of 
this title shall be applicable to this part.

Subpart B--Criteria for the Development of Medical Evidence


Sec. 718.101  General.

    (a) The Office of Workers' Compensation Programs (hereinafter OWCP 
or the Office) shall develop the medical evidence necessary for a 
determination with respect to each claimant's entitlement to benefits. 
Each miner who files a claim for benefits under the Act shall be 
provided an opportunity to substantiate his or her claim by means of a 
complete pulmonary evaluation including, but not limited to, a chest 
roentgenogram (X-ray), physical examination, pulmonary function tests 
and a blood-gas study.
    (b) The standards for the administration of clinical tests and 
examinations contained in this subpart shall apply to all evidence 
developed by any party after [the effective date of the final rule] in 
connection with a claim governed by this part (see Secs. 725.406(b), 
725.414(a), 725.456(d)). These standards shall also apply to claims 
governed by part 727 (see 20 CFR 725.4(d)), but only for clinical tests 
or examinations conducted after [the effective date of the final rule]. 
Any clinical test or examination subject to these standards shall be in 
substantial compliance with the applicable standard in order to 
constitute evidence of the fact for which it is proffered. Unless 
otherwise provided, any evidence which is not in substantial compliance 
with the applicable standard is insufficient to establish the fact for 
which it is proffered.

[[Page 55011]]

Sec. 718.102  Chest roentgenograms (X-rays).

    (a) A chest roentgenogram (X-ray) shall be of suitable quality for 
proper classification of pneumoconiosis and shall conform to the 
standards for administration and interpretation of chest X-rays as 
described in Appendix A to this part.
    (b) A chest X-ray to establish the existence of pneumoconiosis 
shall be classified as Category 1, 2, 3, A, B, or C, according to the 
International Labour Organization Union Internationale Contra Cancer/
Cincinnati (1971) International Classification of Radiographs of the 
Pneumoconioses (ILO-U/C 1971), or subsequent revisions thereof. A chest 
X-ray classified as Category Z under the ILO Classification (1958) or 
Short Form (1968) shall be reclassified as Category O or Category 1 as 
appropriate, and only the latter accepted as evidence of 
pneumoconiosis. A chest X-ray classified under any of the foregoing 
classifications as Category O, including sub-categories 0--, 0/0, or 0/
1 under the UICC/Cincinnati (1968) Classification or the ILO-U/C 1971 
Classification does not constitute evidence of pneumoconiosis.
    (c) A description and interpretation of the findings in terms of 
the classifications described in paragraph (b) of this section shall be 
submitted by the examining physician along with the film. The report 
shall specify the name and qualifications of the person who took the 
film and the name and qualifications of the physician interpreting the 
film. If the physician interpreting the film is a Board-certified or 
Board-eligible radiologist or a certified ``B'' reader (see 
Sec. 718.202), he or she shall so indicate. The report shall further 
specify that the film was interpreted in compliance with this 
paragraph.
    (d) The original film on which the X-ray report is based shall be 
supplied to the Office, unless prohibited by law, in which event the 
report shall be considered as evidence only if the original film is 
otherwise available to the Office and other parties. Where the chest X-
ray of a deceased miner has been lost, destroyed or is otherwise 
unavailable, a report of a chest X-ray submitted by any party shall be 
considered in connection with the claim.
    (e) No chest X-ray shall constitute evidence of the presence or 
absence of pneumoconiosis unless it is conducted and reported in 
accordance with the requirements of this section and Appendix A. In the 
absence of evidence to the contrary, compliance with the requirements 
of Appendix A shall be presumed. In the case of a deceased miner where 
the only available X-ray does not substantially comply with this 
subpart, such X-ray shall be considered and shall be accorded 
appropriate weight in light of all relevant evidence if it is of 
sufficient quality for determining the presence or absence of 
pneumoconiosis and such X-ray was interpreted by a Board-certified or 
Board-eligible radiologist or a certified ``B'' reader (see 
Sec. 718.202).


Sec. 718.103  Pulmonary function tests.

    (a) Any report of pulmonary function tests submitted in connection 
with a claim for benefits shall record the results of flow versus 
volume (flow-volume loop). The instrument shall simultaneously provide 
records of volume versus time (spirometric tracing). The report shall 
provide the results of the forced expiratory volume in one second 
(FEV1) and the forced vital capacity (FVC). The report shall also 
provide the FEV1/FVC ratio, expressed as a percentage. If the maximum 
voluntary ventilation (MVV) is reported, the results of such test shall 
be obtained independently rather than calculated from the results of 
the FEV1.
    (b) All pulmonary function test results submitted in connection 
with a claim for benefits shall be accompanied by three tracings of the 
flow versus volume and the electronically derived volume versus time 
tracings. If the MVV is reported, two tracings of the MVV whose values 
are within 10% of each other shall be sufficient. Pulmonary function 
test results submitted in connection with a claim for benefits shall 
also include a statement signed by the physician or technician 
conducting the test setting forth the following:
    (1) Date and time of test;
    (2) Name, DOL claim number, age, height, and weight of claimant at 
the time of the test;
    (3) Name of technician;
    (4) Name and signature of physician supervising the test;
    (5) Claimant's ability to understand the instructions, ability to 
follow directions and degree of cooperation in performing the tests. If 
the claimant is unable to complete the test, the person executing the 
report shall set forth the reasons for such failure;
    (6) Paper speed of the instrument used;
    (7) Name of the instrument used;
    (8) Whether a bronchodilator was administered. If a bronchodilator 
is administered, the physician's report must detail values obtained 
both before and after administration of the bronchodilator and explain 
the significance of the results obtained; and
    (9) That the requirements of paragraphs (b) and (c) of this section 
have been complied with.
    (c) No results of a pulmonary function study shall constitute 
evidence of the presence or absence of a respiratory or pulmonary 
impairment unless it is conducted and reported in accordance with the 
requirements of this section and Appendix B to this part. In the 
absence of evidence to the contrary, compliance with the requirements 
of Appendix B shall be presumed. In the case of a deceased miner, 
special consideration shall be given to noncomplying tests if, in the 
opinion of the adjudication officer, the only available tests 
demonstrate technically valid results obtained with good cooperation of 
the miner.


Sec. 718.104  Report of physical examinations.

    (a) A report of any physical examination conducted in connection 
with a claim shall be prepared on a medical report form supplied by the 
Office or in a manner containing substantially the same information. 
Any such report shall include the following information and test 
results:
    (1) The miner's medical and employment history;
    (2) All manifestations of chronic respiratory disease;
    (3) Any pertinent findings not specifically listed on the form;
    (4) If heart disease secondary to lung disease is found, all 
symptoms and significant findings;
    (5) The results of a chest X-ray conducted and interpreted as 
required by Sec. 718.102; and
    (6) The results of a pulmonary function test conducted and reported 
as required by Sec. 718.103. If the miner is physically unable to 
perform a pulmonary function test or if the test is medically 
contraindicated, in the absence of evidence establishing total 
disability pursuant to Sec. 718.304, the report must be based on other 
medically acceptable clinical and laboratory diagnostic techniques, 
such as a blood gas study.
    (b) In addition to the requirements of paragraph (a) of this 
section, a report of physical examination may be based on any other 
procedures such as electrocardiogram, blood-gas studies conducted and 
reported as required by Sec. 718.105, and other blood analyses which, 
in the physician's opinion, aid in his or her evaluation of the miner.
    (c) In the case of a deceased miner, a report prepared by a 
physician who is unavailable, which fails to meet the criteria of 
paragraph (a), may be given appropriate consideration and weight by the 
adjudicator in light of all relevant

[[Page 55012]]

evidence provided no report which does comply with this section is 
available.
    (d) Treating physician. The adjudication officer may give the 
medical opinion of the miner's treating physician controlling weight in 
weighing the medical evidence of record relevant to whether the miner 
suffers, or suffered, from pneumoconiosis, whether the pneumoconiosis 
arose out of coal mine employment, and whether the miner is, or was, 
totally disabled by pneumoconiosis or died due to pneumoconiosis. The 
adjudication officer shall take into consideration the following 
factors in weighing the opinion of a treating physician:
    (1) Nature of relationship. The opinion of a physician who has 
treated the miner for respiratory or pulmonary conditions is entitled 
to more weight than a physician who has treated the miner for non-
respiratory conditions;
    (2) Duration of relationship. The length of the treatment 
relationship demonstrates whether the physician has observed the miner 
long enough to obtain a superior understanding of his or her condition;
    (3) Frequency of treatment. The frequency of physician-patient 
visits demonstrates whether the physician has observed the miner often 
enough to obtain a superior understanding of his or her condition; and
    (4) Extent of treatment. The types of testing and examinations 
conducted during the treatment relationship demonstrate whether the 
physician has obtained superior and relevant information concerning the 
miner's condition.
    (5) In the absence of contrary probative evidence, the adjudication 
officer shall accept the statement of a physician with regard to the 
factors listed in paragraphs (d)(1) through (4) of this section. 
Whether controlling weight is given to the opinion of a miner's 
treating physician shall also be based on the credibility of the 
physician's opinion in light of its reasoning and documentation, other 
relevant evidence and the record as a whole.


Sec. 718.105  Arterial blood-gas studies.

    (a) Blood-gas studies are performed to detect an impairment in the 
process of alveolar gas exchange. This defect will manifest itself 
primarily as a fall in arterial oxygen tension either at rest or during 
exercise. No blood-gas study shall be performed if medically 
contraindicated.
    (b) A blood-gas study shall initially be administered at rest and 
in a sitting position. If the results of the blood-gas test at rest do 
not satisfy the requirements of Appendix C to this part, an exercise 
blood-gas test shall be offered to the miner unless medically 
contraindicated. If an exercise blood-gas test is administered, blood 
shall be drawn during exercise.
    (c) Any report of a blood-gas study submitted in connection with a 
claim shall specify:
    (1) Date and time of test;
    (2) Altitude and barometric pressure at which the test was 
conducted;
    (3) Name and DOL claim number of the claimant;
    (4) Name of technician;
    (5) Name and signature of physician supervising the study;
    (6) The recorded values for PCO2, PO2, and PH, which have been 
collected simultaneously (specify values at rest and, if performed, 
during exercise);
    (7) Duration and type of exercise;
    (8) Pulse rate at the time the blood sample was drawn;
    (9) Time between drawing of sample and analysis of sample; and
    (10) Whether equipment was calibrated before and after each test.
    (d) If one or more blood-gas studies producing results which meet 
the appropriate table in Appendix C is administered during a 
hospitalization which ends in the miner's death, then any such study 
must be accompanied by a physician's report establishing that the test 
results were produced by a chronic respiratory or pulmonary condition. 
Failure to produce such a report will prevent reliance on the blood-gas 
study as evidence that the miner was totally disabled at death.


Sec. 718.106  Autopsy; biopsy.

    (a) A report of an autopsy or biopsy submitted in connection with a 
claim shall include a detailed gross macroscopic and microscopic 
description of the lungs or visualized portion of a lung. If a surgical 
procedure has been performed to obtain a portion of a lung, the 
evidence shall include a copy of the surgical note and the pathology 
report of the gross and microscopic examination of the surgical 
specimen. If an autopsy has been performed, a complete copy of the 
autopsy report shall be submitted to the Office.
    (b) In the case of a miner who died prior to March 31, 1980, an 
autopsy or biopsy report shall be considered even when the report does 
not substantially comply with the requirements of this section. A 
noncomplying report concerning a miner who died prior to March 31, 
1980, shall be accorded the appropriate weight in light of all relevant 
evidence.
    (c) A negative biopsy is not conclusive evidence that the miner 
does not have pneumoconiosis. However, where positive findings are 
obtained on biopsy, the results will constitute evidence of the 
presence of pneumoconiosis.


Sec. 718.107  Other medical evidence.

    (a) The results of any medically acceptable test or procedure 
reported by a physician and not addressed in this subpart, which tends 
to demonstrate the presence or absence of pneumoconiosis, the sequelae 
of pneumoconiosis or a respiratory or pulmonary impairment, may be 
submitted in connection with a claim and shall be given appropriate 
consideration.
    (b) The party submitting the test or procedure pursuant to this 
section bears the burden to demonstrate that the test or procedure is 
medically acceptable and relevant to establishing or refuting a 
claimant's entitlement to benefits.

Subpart C--Determining Entitlement to Benefits


Sec. 718.201  Definition of pneumoconiosis.

    (a) For the purpose of the Act, ``pneumoconiosis'' means a chronic 
dust disease of the lung and its sequelae, including respiratory and 
pulmonary impairments, arising out of coal mine employment. This 
definition includes both medical, or ``clinical'', pneumoconiosis and 
statutory, or ``legal'', pneumoconiosis.
    (1) Clinical pneumoconiosis. ``Clinical pneumoconiosis'' consists 
of those diseases, recognized by the medical community as 
pneumoconioses, i.e., the conditions characterized by permanent 
deposition of substantial amounts of particulate matter in the lungs 
and the fibrotic reaction of the lung tissue to that deposition caused 
by dust exposure in coal mine employment. This definition includes, but 
is not limited to, coal workers' pneumoconiosis, anthracosilicosis, 
anthracosis, anthrosilicosis, massive pulmonary fibrosis, silicosis or 
silicotuberculosis, arising out of coal mine employment.
    (2) Legal pneumoconiosis. ``Legal pneumoconiosis'' includes any 
chronic lung disease or impairment and its sequelae arising out of coal 
mine employment. This definition includes, but is not limited to, any 
chronic restrictive or obstructive pulmonary disease arising out of 
coal mine employment.
    (b) For purposes of this section, a disease ``arising out of coal 
mine employment'' includes any chronic pulmonary disease or respiratory 
or pulmonary impairment significantly related to, or substantially 
aggravated

[[Page 55013]]

by, dust exposure in coal mine employment.
    (c) For purposes of this definition, ``pneumoconiosis'' is 
recognized as a latent and progressive disease which may first become 
detectable only after the cessation of coal mine dust exposure.


Sec. 718.202  Determining the existence of pneumoconiosis.

    (a) A finding of the existence of pneumoconiosis may be made as 
follows:
    (1) A chest X-ray conducted and classified in accordance with 
Sec. 718.102 may form the basis for a finding of the existence of 
pneumoconiosis. Except as otherwise provided in this section, where two 
or more X-ray reports are in conflict, in evaluating such X-ray reports 
consideration shall be given to the radiological qualifications of the 
physicians interpreting such X-rays.
    (i) In all claims filed before January 1, 1982, where there is 
other evidence of pulmonary or respiratory impairment, a Board-
certified or Board-eligible radiologist's interpretation of a chest X-
ray shall be accepted by the Office if the X-ray is in compliance with 
the requirements of Sec. 718.102 and if such X-ray has been taken by a 
radiologist or qualified radiologic technologist or technician and 
there is no evidence that the claim has been fraudulently represented. 
However, these limitations shall not apply to any claim filed on or 
after January 1, 1982.
    (ii) The following definitions shall apply when making a finding in 
accordance with this paragraph.
    (A) The term other evidence means medical tests such as blood-gas 
studies, pulmonary function studies or physical examinations or medical 
histories which establish the presence of a chronic pulmonary, 
respiratory or cardio-pulmonary condition, and in the case of a 
deceased miner, in the absence of medical evidence to the contrary, 
affidavits of persons with knowledge of the miner's physical condition.
    (B) Pulmonary or respiratory impairment means inability of the 
human respiratory apparatus to perform in a normal manner one or more 
of the three components of respiration, namely, ventilation, perfusion 
and diffusion.
    (C) Board-certified means certification in radiology or diagnostic 
roentgenology by the American Board of Radiology, Inc. or the American 
Osteopathic Association.
    (D) Board-eligible means the successful completion of a formal 
accredited residency program in radiology or diagnostic roentgenology.
    (E) Certified `B' reader or `B' reader means a physician who has 
demonstrated proficiency in evaluating chest roentgenograms for 
roentgenographic quality and in the use of the ILO-U/C classification 
for interpreting chest roentgenograms for pneumoconiosis and other 
diseases by taking and passing a specially designed proficiency 
examination given on behalf of or by the Appalachian Laboratory for 
Occupational Safety and Health. See 42 CFR 37.51(b)(2).
    (F) Qualified radiologic technologist or technician means an 
individual who is either certified as a registered technologist by the 
American Registry of Radiologic Technologists or licensed as a 
radiologic technologist by a state licensing board.
    (2) A biopsy or autopsy conducted and reported in compliance with 
Sec. 718.106 may be the basis for a finding of the existence of 
pneumoconiosis. A finding in an autopsy or biopsy of anthracotic 
pigmentation, however, shall not be sufficient, by itself, to establish 
the existence of pneumoconiosis. A report of autopsy shall be accepted 
unless there is evidence that the report is not accurate or that the 
claim has been fraudulently represented.
    (3) If the presumptions described in Secs. 718.304, 718.305 or 
Sec. 718.306 are applicable, it shall be presumed that the miner is or 
was suffering from pneumoconiosis.
    (4) A determination of the existence of pneumoconiosis may also be 
made if a physician, exercising sound medical judgment, notwithstanding 
a negative X-ray, finds that the miner suffers or suffered from 
pneumoconiosis as defined in Sec. 718.201. Any such finding shall be 
based on objective medical evidence such as blood-gas studies, 
electrocardiograms, pulmonary function studies, physical performance 
tests, physical examination, and medical and work histories. Such a 
finding shall be supported by a reasoned medical opinion.
    (b) No claim for benefits shall be denied solely on the basis of a 
negative chest X-ray.
    (c) A determination of the existence of pneumoconiosis shall not be 
made solely on the basis of a living miner's statements or testimony. 
Nor shall such a determination be made upon a claim involving a 
deceased miner filed on or after January 1, 1982, solely based upon the 
affidavit(s) (or equivalent sworn testimony) of the claimant and/or his 
or her dependents who would be eligible for augmentation of the 
claimant's benefits if the claim were approved.


Sec. 718.203  Establishing relationship of pneumoconiosis to coal mine 
employment.

    (a) In order for a claimant to be found eligible for benefits under 
the Act, it must be determined that the miner's pneumoconiosis arose at 
least in part out of coal mine employment. The provisions in this 
section set forth the criteria to be applied in making such a 
determination.
    (b) If a miner who is suffering or suffered from pneumoconiosis was 
employed for ten years or more in one or more coal mines, there shall 
be a rebuttable presumption that the pneumoconiosis arose out of such 
employment.
    (c) If a miner who is suffering or suffered from pneumoconiosis was 
employed less than ten years in the nation's coal mines, it shall be 
determined that such pneumoconiosis arose out of that employment only 
if competent evidence establishes such a relationship.


Sec. 718.204  Total disability and disability causation defined; 
criteria for determining total disability and total disability due to 
pneumoconiosis.

    (a) General. Benefits are provided under the Act for or on behalf 
of miners who are totally disabled due to pneumoconiosis, or who were 
totally disabled due to pneumoconiosis at the time of death. For 
purposes of this section, any nonpulmonary or nonrespiratory condition 
or disease, which causes an independent disability unrelated to the 
miner's pulmonary or respiratory disability, shall not be considered in 
determining whether a miner is totally disabled due to pneumoconiosis. 
If, however, a nonpulmonary or nonrespiratory condition or disease 
causes a chronic respiratory or pulmonary impairment, that condition or 
disease shall be considered in determining whether the miner is or was 
totally disabled due to pneumoconiosis.
    (b)(1) Total disability defined. A miner shall be considered 
totally disabled if the irrebuttable presumption described in 
Sec. 718.304 applies. If that presumption does not apply, a miner shall 
be considered totally disabled if the miner has a pulmonary or 
respiratory impairment which, standing alone, prevents or prevented the 
miner:
    (i) From performing his or her usual coal mine work; and
    (ii) From engaging in gainful employment in the immediate area of 
his or her residence requiring the skills or abilities comparable to 
those of any employment in a mine or mines in which he or she 
previously engaged

[[Page 55014]]

with some regularity over a substantial period of time.
    (2) Medical criteria. In the absence of contrary probative 
evidence, evidence which meets the standards of either paragraphs 
(b)(2)(i), (ii), (iii), or (iv) of this section shall establish a 
miner's total disability:
    (i) Pulmonary function tests showing values equal to or less than 
those listed in Table B1 (Males) or Table B2 (Females) in Appendix B to 
this part for an individual of the miner's age, sex, and height for the 
FEV1 test; if, in addition, such tests also reveal the values specified 
in either paragraph (b)(2)(i)(A) or (B) or (C) of this section:
    (A) Values equal to or less than those listed in Table B3 (Males) 
or Table B4 (Females) in Appendix B of this part, for an individual of 
the miner's age, sex, and height for the FVC test, or
    (B) Values equal to or less than those listed in Table B5 (Males) 
or Table B6 (Females) in Appendix B to this part, for an individual of 
the miner's age, sex, and height for the MVV test, or
    (C) A percentage of 55 or less when the results of the FEV1 test 
are divided by the results of the FVC test (FEV1/FVC equal to or less 
than 55%), or
    (ii) Arterial blood-gas tests show the values listed in Appendix C 
to this part, or
    (iii) The miner has pneumoconiosis and has been shown by the 
medical evidence to be suffering from cor pulmonale with right-sided 
congestive heart failure, or
    (iv) Where total disability cannot be shown under paragraphs 
(b)(2)(i), (ii), or (iii) of this section, or where pulmonary function 
tests and/or blood gas studies are medically contraindicated, total 
disability may nevertheless be found if a physician exercising reasoned 
medical judgment, based on medically acceptable clinical and laboratory 
diagnostic techniques, concludes that a miner's respiratory or 
pulmonary condition prevents or prevented the miner from engaging in 
employment as described in paragraph (b)(1) of this section.
    (c)(1) Total disability due to pneumoconiosis defined. A miner 
shall be considered totally disabled due to pneumoconiosis if 
pneumoconiosis, as defined in Sec. 718.201, is a substantially 
contributing cause of the miner's totally disabling respiratory or 
pulmonary impairment. Pneumoconiosis is a ``substantially contributing 
cause'' of the miner's disability if it:
    (i) Has an adverse effect on the miner's respiratory or pulmonary 
condition; or
    (ii) Worsens a totally disabling respiratory or pulmonary 
impairment which is caused by a disease or exposure unrelated to coal 
mine employment.
    (2) Except as provided in Sec. 718.305 and paragraph (b)(2)(iii) of 
this section, proof that the miner suffers or suffered from a totally 
disabling respiratory or pulmonary impairment as defined in paragraphs 
(b)(2)(i), (b)(2)(ii), (b)(2)(iv) and (d) of this section shall not, by 
itself, be sufficient to establish that the miner's impairment is or 
was due to pneumoconiosis. Except as provided in paragraph (d), the 
cause or causes of a miner's total disability shall be established by 
means of a physician's documented and reasoned medical report.
    (d) Lay evidence. In establishing total disability, lay evidence 
may be used in the following cases:
    (1) In a case involving a deceased miner in which the claim was 
filed prior to January 1, 1982, affidavits (or equivalent sworn 
testimony) from persons knowledgeable of the miner's physical condition 
shall be sufficient to establish total (or under Sec. 718.306 partial) 
disability due to pneumoconiosis if no medical or other relevant 
evidence exists which addresses the miner's pulmonary or respiratory 
condition.
    (2) In a case involving a survivor's claim filed on or after 
January 1, 1982, but prior to June 30, 1982, which is subject to 
Sec. 718.306, affidavits (or equivalent sworn testimony) from persons 
knowledgeable of the miner's physical condition shall be sufficient to 
establish total or partial disability due to pneumoconiosis if no 
medical or other relevant evidence exists which addresses the miner's 
pulmonary or respiratory condition; however, such a determination shall 
not be based solely upon the affidavits or testimony of the claimant 
and/or his or her dependents who would be eligible for augmentation of 
the claimant's benefits if the claim were approved.
    (3) In a case involving a deceased miner whose claim was filed on 
or after January 1, 1982, affidavits (or equivalent sworn testimony) 
from persons knowledgeable of the miner's physical condition shall be 
sufficient to establish total disability due to pneumoconiosis if no 
medical or other relevant evidence exists which addresses the miner's 
pulmonary or respiratory condition; however, such a determination shall 
not be based solely upon the affidavits or testimony of any person who 
would be eligible for benefits (including augmented benefits) if the 
claim were approved.
    (4) Statements made before death by a deceased miner about his or 
her physical condition are relevant and shall be considered in making a 
determination as to whether the miner was totally disabled at the time 
of death.
    (5) In the case of a living miner's claim, a finding of total 
disability due to pneumoconiosis shall not be made solely on the 
miner's statements or testimony.
    (e) In determining total disability to perform usual coal mine 
work, the following shall apply in evaluating the miner's employment 
activities:
    (1) In the case of a deceased miner, employment in a mine at the 
time of death shall not be conclusive evidence that the miner was not 
totally disabled. To disprove total disability, it must be shown that 
at the time the miner died, there were no changed circumstances of 
employment indicative of his or her reduced ability to perform his or 
her usual coal mine work.
    (2) In the case of a living miner, proof of current employment in a 
coal mine shall not be conclusive evidence that the miner is not 
totally disabled unless it can be shown that there are no changed 
circumstances of employment indicative of his or her reduced ability to 
perform his or her usual coal mine work.
    (3) Changed circumstances of employment indicative of a miner's 
reduced ability to perform his or her usual coal mine work may include 
but are not limited to:
    (i) The miner's reduced ability to perform his or her customary 
duties without help; or
    (ii) The miner's reduced ability to perform his or her customary 
duties at his or her usual levels of rapidity, continuity or 
efficiency; or
    (iii) The miner's transfer by request or assignment to less 
vigorous duties or to duties in a less dusty part of the mine.


Sec. 718.205  Death due to pneumoconiosis.

    (a) Benefits are provided to eligible survivors of a miner whose 
death was due to pneumoconiosis. In order to receive benefits, the 
claimant must prove that:
    (1) The miner had pneumoconiosis (see Sec. 718.202);
    (2) The miner's pneumoconiosis arose out of coal mine employment 
(see Sec. 718.203); and
    (3) The miner's death was due to pneumoconiosis as provided by this 
section.
    (b) For the purpose of adjudicating survivors' claims filed prior 
to January 1, 1982, death will be considered due to pneumoconiosis if 
any of the following criteria is met:
    (1) Where competent medical evidence established that the miner's 
death was due to pneumoconiosis, or

[[Page 55015]]

    (2) Where death was due to multiple causes including pneumoconiosis 
and it is not medically feasible to distinguish which disease caused 
death or the extent to which pneumoconiosis contributed to the cause of 
death, or
    (3) Where the presumption set forth at Sec. 718.304 is applicable, 
or
    (4) Where either of the presumptions set forth at Sec. 718.303 or 
Sec. 718.305 is applicable and has not been rebutted.
    (5) Where the cause of death is significantly related to or 
aggravated by pneumoconiosis.
    (c) For the purpose of adjudicating survivors' claims filed on or 
after January 1, 1982, death will be considered to be due to 
pneumoconiosis if any of the following criteria is met:
    (1) Where competent medical evidence establishes that 
pneumoconiosis was the cause of the miner's death, or
    (2) Where pneumoconiosis was a substantially contributing cause or 
factor leading to the miner's death or where the death was caused by 
complications of pneumoconiosis, or
    (3) Where the presumption set forth at Sec. 718.304 is applicable.
    (4) However, survivors are not eligible for benefits where the 
miner's death was caused by a traumatic injury or the principal cause 
of death was a medical condition not related to pneumoconiosis, unless 
the evidence establishes that pneumoconiosis was a substantially 
contributing cause of death.
    (5) Pneumoconiosis is a ``substantially contributing cause'' of a 
miner's death if it hastens the miner's death.
    (d) To minimize the hardships to potentially entitled survivors due 
to the disruption of benefits upon the miner's death, survivors' claims 
filed on or after January 1, 1982, shall be adjudicated on an expedited 
basis in accordance with the following procedures. The initial burden 
is upon the claimant, with the assistance of the district director, to 
develop evidence which meets the requirements of paragraph (c) of this 
section. Where the initial medical evidence appears to establish that 
death was due to pneumoconiosis, the survivor will receive benefits 
unless the weight of the evidence as subsequently developed by the 
Department or the responsible operator establishes that the miner's 
death was not due to pneumoconiosis as defined in paragraph (c). 
However, no such benefits shall be found payable before the party 
responsible for the payment of such benefits shall have had a 
reasonable opportunity for the development of rebuttal evidence. See 
Sec. 725.414 concerning the operator's opportunity to develop evidence 
prior to an initial determination.


Sec. 718.206  Effect of findings by persons or agencies.

    Decisions, statements, reports, opinions, or the like, of agencies, 
organizations, physicians or other individuals, about the existence, 
cause, and extent of a miner's disability, or the cause of a miner's 
death, are admissible. If properly submitted, such evidence shall be 
considered and given the weight to which it is entitled as evidence 
under all the facts before the adjudication officer in the claim.

Subpart D--Presumptions Applicable to Eligibility Determinations


Sec. 718.301  Establishing length of employment as a miner.

    The presumptions set forth in Secs. 718.302, 718.303, 718.305 and 
718.306 apply only if a miner worked in one or more coal mines for the 
number of years required to invoke the presumption. The length of the 
miner's coal mine work history must be computed as provided by 20 CFR 
725.101(a)(32).


Sec. 718.302  Relationship of pneumoconiosis to coal mine employment.

    If a miner who is suffering or suffered from pneumoconiosis was 
employed for ten years or more in one or more coal mines, there shall 
be a rebuttable presumption that the pneumoconiosis arose out of such 
employment. (See Sec. 718.203.)


Sec. 718.303  Death from a respirable disease.

    (a)(1) If a deceased miner was employed for ten or more years in 
one or more coal mines and died from a respirable disease, there shall 
be a rebuttable presumption that his or her death was due to 
pneumoconiosis.
    (2) Under this presumption, death shall be found due to a 
respirable disease in any case in which the evidence establishes that 
death was due to multiple causes, including a respirable disease, and 
it is not medically feasible to distinguish which disease caused death 
or the extent to which the respirable disease contributed to the cause 
of death.
    (b) The presumption of paragraph (a) of this section may be 
rebutted by a showing that the deceased miner did not have 
pneumoconiosis, that his or her death was not due to pneumoconiosis or 
that pneumoconiosis did not contribute to his or her death.
    (c) This section is not applicable to any claim filed on or after 
January 1, 1982.


Sec. 718.304  Irrebuttable presumption of total disability or death due 
to pneumoconiosis.

    There is an irrebuttable presumption that a miner is totally 
disabled due to pneumoconiosis, that a miner's death was due to 
pneumoconiosis or that a miner was totally disabled due to 
pneumoconiosis at the time of death, if such miner is suffering or 
suffered from a chronic dust disease of the lung which:
    (a) When diagnosed by chest X-ray (see Sec. 718.202 concerning the 
standards for X-rays and the effect of interpretations of X-rays by 
physicians) yields one or more large opacities (greater than 1 
centimeter in diameter) and would be classified in Category A, B, or C 
in:
    (1) The ILO-U/C International Classification of Radiographs of the 
Pneumoconioses, 1971, or subsequent revisions thereto; or
    (2) The International Classification of the Radiographs of the 
Pneumoconioses of the International Labour Office, Extended 
Classification (1968) (which may be referred to as the ``ILO 
Classification (1968)''); or
    (3) The Classification of the Pneumoconioses of the Union 
Internationale Contra Cancer/Cincinnati (1968) (which may be referred 
to as the ``UICC/Cincinnati (1968) Classification''); or
    (b) When diagnosed by biopsy or autopsy, yields massive lesions in 
the lung; or
    (c) When diagnosed by means other than those specified in 
paragraphs (a) and (b) of this section, would be a condition which 
could reasonably be expected to yield the results described in 
paragraph (a) or (b) of this section had diagnosis been made as therein 
described: Provided, however, That any diagnosis made under this 
paragraph shall accord with acceptable medical procedures.


Sec. 718.305  Presumption of pneumoconiosis.

    (a) If a miner was employed for fifteen years or more in one or 
more underground coal mines, and if there is a chest X-ray submitted in 
connection with such miner's or his or her survivor's claim and it is 
interpreted as negative with respect to the requirements of 
Sec. 718.304, and if other evidence demonstrates the existence of a 
totally disabling respiratory or pulmonary impairment, then there shall 
be a rebuttable presumption that such miner is totally disabled due to 
pneumoconiosis, that such miner's death was due to pneumoconiosis, or 
that at the time of death such miner was totally disabled by 
pneumoconiosis. In

[[Page 55016]]

the case of a living miner's claim, a spouse's affidavit or testimony 
may not be used by itself to establish the applicability of the 
presumption. The Secretary shall not apply all or a portion of the 
requirement of this paragraph that the miner work in an underground 
mine where it is determined that conditions of the miner's employment 
in a coal mine were substantially similar to conditions in an 
underground mine. The presumption may be rebutted only by establishing 
that the miner does not, or did not, have pneumoconiosis, or that his 
or her respiratory or pulmonary impairment did not arise out of, or in 
connection with, employment in a coal mine.
    (b) In the case of a deceased miner, where there is no medical or 
other relevant evidence, affidavits of persons having knowledge of the 
miner's condition shall be considered to be sufficient to establish the 
existence of a totally disabling respiratory or pulmonary impairment 
for purposes of this section.
    (c) The determination of the existence of a totally disabling 
respiratory or pulmonary impairment, for purposes of applying the 
presumption described in this section, shall be made in accordance with 
Sec. 718.204.
    (d) Where the cause of death or total disability did not arise in 
whole or in part out of dust exposure in the miner's coal mine 
employment or the evidence establishes that the miner does not or did 
not have pneumoconiosis, the presumption will be considered rebutted. 
However, in no case shall the presumption be considered rebutted on the 
basis of evidence demonstrating the existence of a totally disabling 
obstructive respiratory or pulmonary disease of unknown origin.
    (e) This section is not applicable to any claim filed on or after 
January 1, 1982.


Sec. 718.306  Presumption of entitlement applicable to certain death 
claims.

    (a) In the case of a miner who died on or before March 1, 1978, who 
was employed for 25 or more years in one or more coal mines prior to 
June 30, 1971, the eligible survivors of such miner whose claims have 
been filed prior to June 30, 1982, shall be entitled to the payment of 
benefits, unless it is established that at the time of death such miner 
was not partially or totally disabled due to pneumoconiosis. Eligible 
survivors shall, upon request, furnish such evidence as is available 
with respect to the health of the miner at the time of death, and the 
nature and duration of the miner's coal mine employment.
    (b) For the purpose of this section, a miner will be considered to 
have been ``partially disabled'' if he or she had reduced ability to 
engage in work as defined in Sec. 718.204(b).
    (c) In order to rebut this presumption the evidence must 
demonstrate that the miner's ability to perform work as defined in 
Sec. 718.204(b) was not reduced at the time of his or her death or that 
the miner did not have pneumoconiosis.
    (d) None of the following items, by itself, shall be sufficient to 
rebut the presumption:
    (1) Evidence that a deceased miner was employed in a coal mine at 
the time of death;
    (2) Evidence pertaining to a deceased miner's level of earnings 
prior to death;
    (3) A chest X-ray interpreted as negative for the existence of 
pneumoconiosis;
    (4) A death certificate which makes no mention of pneumoconiosis.

Appendix A to Part 718--Standards for Administration and 
Interpretation of Chest Roentgenograms (X-rays)

    The following standards are established in accordance with 
sections 402(f)(1)(D) and 413(b) of the Act. They were developed in 
consultation with the National Institute for Occupational Safety and 
Health. These standards are promulgated for the guidance of 
physicians and medical technicians to insure that uniform procedures 
are used in administering and interpreting X-rays and that the best 
available medical evidence will be submitted in connection with a 
claim for black lung benefits. If it is established that one or more 
standards have not been met, the claims adjudicator may consider 
such fact in determining the evidentiary weight to be assigned to 
the physician's report of an X-ray.
    (1) Every chest roentgenogram shall be a single postero-anterior 
projection at full inspiration on a 14 by 17 inch film. Additional 
chest films or views shall be obtained if they are necessary for 
clarification and classification. The film and cassette shall be 
capable of being positioned both vertically and horizontally so that 
the chest roentgenogram will include both apices and costophrenic 
angles. If a miner is too large to permit the above requirements, 
then a projection with minimum loss of costophrenic angle shall be 
made.
    (2) Miners shall be disrobed from the waist up at the time the 
roentgenogram is given. The facility shall provide a dressing area 
and, for those miners who wish to use one, the facility shall 
provide a clean gown. Facilities shall be heated to a comfortable 
temperature.
    (3) Roentgenograms shall be made only with a diagnostic X-ray 
machine having a rotating anode tube with a maximum of a 2 mm source 
(focal spot).
    (4) Except as provided in paragraph (5), roentgenograms shall be 
made with units having generators which comply with the following: 
(a) the generators of existing roentgenographic units acquired by 
the examining facility prior to July 27, 1973, shall have a minimum 
rating of 200 mA at 100 kVp; (b) generators of units acquired 
subsequent to that date shall have a minimum rating of 300 mA at 125 
kVp.

    Note: A generator with a rating of 150 kVp is recommended.

    (5) Roentgenograms made with battery-powered mobile or portable 
equipment shall be made with units having a minimum rating of 100 mA 
at 110 kVp at 500 Hz, or 200 mA at 110 kVp at 60 Hz.
    (6) Capacitor discharge, and field emission units may be used.
    (7) Roentgenograms shall be given only with equipment having a 
beam-limiting device which does not cause large unexposed 
boundaries. The use of such a device shall be discernible from an 
examination of the roentgenogram.
    (8) To insure high quality chest roentgenograms:
    (i) The maximum exposure time shall not exceed 1/20 of a second 
except that with single phase units with a rating less than 300 mA 
at 125 kVp and subjects with chest over 28 cm postero-anterior, the 
exposure may be increased to not more than 1/10 of a second;
    (ii) The source or focal spot to film distance shall be at least 
6 feet;
    (iii) Only medium-speed film and medium-speed intensifying 
screens shall be used;
    (iv) Film-screen contact shall be maintained and verified at 6-
month or shorter intervals;
    (v) Intensifying screens shall be inspected at least once a 
month and cleaned when necessary by the method recommended by the 
manufacturer;
    (vi) All intensifying screens in a cassette shall be of the same 
type and made by the same manufacturer;
    (vii) When using over 90 kV, a suitable grid or other means of 
reducing scattered radiation shall be used;
    (viii) The geometry of the radiographic system shall insure that 
the central axis (ray) of the primary beam is perpendicular to the 
plane of the film surface and impinges on the center of the film.
    (9) Radiographic processing:
    (i) Either automatic or manual film processing is acceptable. A 
constant time-temperature technique shall be meticulously employed 
for manual processing.
    (ii) If mineral or other impurities in the processing water 
introduce difficulty in obtaining a high-quality roentgenogram, a 
suitable filter or purification system shall be used.
    (10) Before the miner is advised that the examination is 
concluded, the roentgenogram shall be processed and inspected and 
accepted for quality by the physician, or if the physician is not 
available, acceptance may be made by the radiologic technologist. In 
a case of a substandard roentgenogram, another shall be made 
immediately.
    (11) An electric power supply shall be used which complies with 
the voltage, current, and regulation specified by the manufacturer 
of the machine.
    (12) A densitometric test object may be required on each 
roentgenogram for an objective evaluation of film quality at the 
discretion of the Department of Labor.
    (13) Each roentgenogram made under this Appendix shall be 
permanently and legibly

[[Page 55017]]

marked with the name and address of the facility at which it is 
made, the miner's DOL claim number, the date of the roentgenogram, 
and left and right side of film. No other identifying markings shall 
be recorded on the roentgenogram.

Appendix B to Part 718--Standards for Administration and 
Interpretation of Pulmonary Function Tests--Tables B1, B2, B3, B4, 
B5, B6

    The following standards are established in accordance with 
section 402(f)(1)(D) of the Act. They were developed in consultation 
with the National Institute for Occupational Safety and Health 
(NIOSH). These standards are promulgated for the guidance of 
physicians and medical technicians to insure that uniform procedures 
are used in administering and interpreting ventilatory function 
tests and that the best available medical evidence will be submitted 
in support of a claim for black lung benefits. If it is established 
that one or more standards have not been met, the claims adjudicator 
may consider such fact in determining the evidentiary weight to be 
given to the results of the ventilatory function tests.
    (1) Instruments to be used for the administration of pulmonary 
function tests shall be approved by NIOSH and shall conform to the 
following criteria:
    (i) The instrument shall be accurate within +/-50 ml or within 
+/-3 percent of reading, whichever is greater.
    (ii) The instrument shall be capable of measuring vital capacity 
from 0 to 7 liters BTPS.
    (iii) The instrument shall have a low inertia and offer low 
resistance to airflow such that the resistance to airflow at 12 
liters per second must be less than 1.5 cm H2O/liter/sec.
    (iv) The instrument or user of the instrument must have a means 
of correcting volumes to body temperature saturated with water vapor 
(BTPS) under conditions of varying ambient spirometer temperatures 
and barometric pressures.
    (v) The instrument used shall provide a tracing of flow versus 
volume (flow-volume loop) which displays the entire maximum 
inspiration and the entire maximum forced expiration. The instrument 
shall, in addition, provide tracings of the volume versus time 
tracing (spirogram) derived electronically from the flow-volume 
loop. Tracings are necessary to determine whether maximum 
inspiratory and expiratory efforts have been obtained during the FVC 
maneuver. If maximum voluntary ventilation is measured, the tracing 
shall record the individual breaths volumes versus time.
    (vi) The instrument shall be capable of accumulating volume for 
a minimum of 10 seconds after the onset of exhalation.
    (vii) The instrument must be capable of being calibrated in the 
field with respect to the FEV1. The volume calibration shall be 
accomplished with a 3 L calibrating syringe and should agree to 
within 1 percent of a 3 L calibrating volume. The linearity of the 
instrument must be documented by a record of volume calibrations at 
three different flow rates of approximately 3 L/6 sec, 3 L/3 sec, 
and 3 L/sec.
    (viii) For measuring maximum voluntary ventilation (MVV) the 
instrument shall have a response which is flat within +/-10 percent 
up to 4 Hz at flow rates up to 12 liters per second over the volume 
range.
    (ix) The spirogram shall be recorded at a speed of at least 20 
mm/sec and a volume excursion of at least 10mm/L. Calculation of the 
FEV1 from the flow-volume loop is not acceptable. Original tracings 
shall be submitted.
    (2) The administration of pulmonary function tests shall conform 
to the following criteria:
    (i) Tests shall not be performed during or soon after an acute 
respiratory illness.
    (ii) For the FEV1 and FVC, use of a nose clip is required. The 
procedures shall be explained in simple terms to the patient who 
shall be instructed to loosen any tight clothing and stand in front 
of the apparatus. The subject may sit, or stand, but care should be 
taken on repeat testing that the same position be used. Particular 
attention shall be given to insure that the chin is slightly 
elevated with the neck slightly extended. The subject shall be 
instructed to expire completely, momentarily hold his breath, place 
the mouthpiece in his mouth and close the mouth firmly about the 
mouthpiece to ensure no air leak. The subject will then make a 
maximum inspiration from the instrument and when maximum inspiration 
has been attained, without interruption, blow as hard, fast and 
completely as possible for at least 7 seconds or until a plateau has 
been attained in the volume-time curve with no detectable change in 
the expired volume during the last 2 seconds of maximal expiratory 
effort. A minimum of three flow-volume loops and derived spirometric 
tracings shall be carried out. The patient shall be observed 
throughout the study for compliance with instructions. Inspiration 
and expiration shall be checked visually for reproducibility. The 
effort shall be judged unacceptable when the patient:
    (A) Has not reached full inspiration preceding the forced 
expiration; or
    (B) Has not used maximal effort during the entire forced 
expiration; or
    (C) Has not continued the expiration for at least 7 sec. or 
until an obvious plateau for at least 2 sec. in the volume-time 
curve has occurred; or
    (D) Has coughed or closed his glottis; or
    (E) Has an obstructed mouthpiece or a leak around the mouthpiece 
(obstruction due to tongue being placed in front of mouthpiece, 
false teeth falling in front of mouthpiece, etc.); or
    (F) Has an unsatisfactory start of expiration, one characterized 
by excessive hesitation (or false starts). Peak flow should be 
attained at the start of expiration and the volume-time tracing 
(spirogram) should have a smooth contour revealing gradually 
decreasing flow throughout expiration; or
    (G) Has an excessive variability between the three acceptable 
curves. The variation between the two largest FEV1's of the three 
acceptable tracings should not exceed 5 percent of the largest FEV1 
or 100 ml, whichever is greater.
    (iii) For the MVV, the subject shall be instructed before 
beginning the test that he or she will be asked to breathe as deeply 
and as rapidly as possible for approximately 15 seconds. The test 
shall be performed with the subject in the standing position, if 
possible. Care shall be taken on repeat testing that the same 
position be used. The subject shall breathe normally into the 
mouthpiece of the apparatus for 10 to 15 seconds to become 
accustomed to the system. The subject shall then be instructed to 
breathe as deeply and as rapidly as possible, and shall be 
continually encouraged during the remainder of the maneuver. Subject 
shall continue the maneuver for 15 seconds. At least 5 minutes of 
rest shall be allowed between maneuvers. At least three MVV's shall 
be carried out. (But see Sec. 718.103(b).) During the maneuvers the 
patient shall be observed for compliance with instructions. The 
effort shall be judged unacceptable when the patient:
    (A) Has not maintained consistent effort for at least 12 to 15 
seconds; or
    (B) Has coughed or closed his glottis; or
    (C) Has an obstructed mouthpiece or a leak around the mouthpiece 
(obstruction due to tongue being placed in front of mouthpiece, 
false teeth falling in front of mouthpiece, etc.); or
    (D) Has an excessive variability between the three acceptable 
curves. The variation between the two largest MVV's of the three 
satisfactory tracings shall not exceed 10 percent.
    (iv) A calibration check shall be performed on the instrument 
each day before use, using a volume source of at least three liters, 
accurate to within +/-1 percent of full scale. The volume 
calibration shall be performed in accordance with the method 
described in paragraph (1)(vii) of this Appendix. Accuracy of the 
time measurement used in determining the FEV1 shall be checked using 
the manufacturer's stated procedure and shall be within +/-3 percent 
of actual. The procedure described in the Appendix shall be 
performed as well as any other procedures suggested by the 
manufacturer of the spirometer being used.
    (v)(A) The first step in evaluating a spirogram for the FVC and 
FEV1 shall be to determine whether or not the patient has performed 
the test properly or as described in paragraph (2)(ii) of this 
Appendix. The largest recorded FVC and FEV1, corrected to BTPS, 
shall be used in the analysis.
    (B) Only MVV maneuvers which demonstrate consistent effort for 
at least 12 seconds shall be considered acceptable. The largest 
accumulated volume for a 12 second period corrected to BTPS and 
multiplied by five or the largest accumulated volume for a 15 second 
period corrected to BTPS and multiplied by four is to be reported as 
the MVV.
* * * * *

Appendix C to Part 718--Blood-Gas Tables

    The following tables set forth the values to be applied in 
determining whether total disability may be established in 
accordance with Secs. 718.204(b)(2)(ii) and 718.305(a) and (c). The 
values contained in the tables are indicative of impairment only. 
They do not establish a degree of disability except as provided in 
Secs. 718.204(b)(2)(ii) and 718.305

[[Page 55018]]

(a) and (c), nor do they establish standards for determining normal 
alveolar gas exchange values for any particular individual. Tests 
shall not be performed during or soon after an acute respiratory or 
cardiac illness.
    A miner who meets the following medical specifications shall be 
found to be totally disabled, in the absence of rebutting evidence, 
if the values specified in one of the following tables are met:
    (1) For arterial blood-gas studies performed at test sites up to 
2,999 feet above sea level:

------------------------------------------------------------------------
                                                           Arterial pO2
                                                            equal to or
                 Arterial pCO2  (mm Hg)                   less than  (mm
                                                                Hg)
------------------------------------------------------------------------
25 or below.............................................              75
26......................................................              74
27......................................................              73
28......................................................              72
29......................................................              71
30......................................................              70
31......................................................              69
32......................................................              68
33......................................................              67
34......................................................              66
35......................................................              65
36......................................................              64
37......................................................              63
38......................................................              62
39......................................................              61
40-49...................................................              60
Above 50................................................            \1\
------------------------------------------------------------------------
\1\ Any value.

    (2) For arterial blood-gas studies performed at test sites 3,000 
to 5,999 feet above sea level:

------------------------------------------------------------------------
                                                           Arterial pO2
                                                            equal to or
                 Arterial pCO2  (mm Hg)                   less than  (mm
                                                                Hg)
------------------------------------------------------------------------
25 or below.............................................              70
26......................................................              69
27......................................................              68
28......................................................              67
29......................................................              66
30......................................................              65
31......................................................              64
32......................................................              63
33......................................................              62
34......................................................              61
35......................................................              60
36......................................................              59
37......................................................              58
38......................................................              57
39......................................................              56
40-49...................................................              55
Above 50................................................            \2\
------------------------------------------------------------------------
\2\ Any value.

    (3) For arterial blood-gas studies performed at test sites 6,000 
feet or more above sea level:

------------------------------------------------------------------------
                                                           Arterial pO2
                                                            equal to or
                 Arterial pCO2  (mm Hg)                   less than  (mm
                                                                Hg)
------------------------------------------------------------------------
25 or below.............................................              65
26......................................................              64
27......................................................              63
28......................................................              62
29......................................................              61
30......................................................              60
31......................................................              59
32......................................................              58
33......................................................              57
34......................................................              56
35......................................................              55
36......................................................              54
37......................................................              53
38......................................................              52
39......................................................              51
40-49...................................................              50
Above 50................................................            \3\
------------------------------------------------------------------------
\3\ Any value.

    3. Part 722 is proposed to be revised as follows.

PART 722--CRITERIA FOR DETERMINING WHETHER STATE WORKERS' 
COMPENSATION LAWS PROVIDE ADEQUATE COVERAGE FOR PNEUMOCONIOSIS AND 
LISTING OF APPROVED STATE LAWS

722.1  Purpose.
722.2  Definitions.
722.3  General criteria; inclusion in and removal from the 
Secretary's list.

722.4  The Secretary's list.

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


Sec. 722.1  Purpose.

    Section 421 of the Black Lung Benefits Act provides that a claim 
for benefits based on the total disability or death of a coal miner due 
to pneumoconiosis must be filed under a State workers' compensation law 
where such law provides adequate coverage for pneumoconiosis. A State 
workers' compensation law may be deemed to provide adequate coverage 
only when it is included on a list of such laws maintained by the 
Secretary. The purpose of this part is to set forth the procedures and 
criteria for inclusion on that list, and to provide that list.


Sec. 722.2  Definitions.

    (a) The definitions and use of terms contained in subpart A of part 
725 of this title shall be applicable to this part.
    (b) For purposes of this part, the following definitions apply:
    (1) State agency means, with respect to any State, the agency, 
department or officer designated by the workers' compensation law of 
the State to administer such law. In any case in which more than one 
agency participates in the administration of a State workers' 
compensation law, the Governor of the State may designate which of the 
agencies shall be the State agency for purposes of this part.
    (2) The Secretary's list means the list published by the Secretary 
of Labor in the Federal Register (see Sec. 722.4) containing the names 
of those States which have in effect a workers' compensation law which 
provides adequate coverage for death or total disability due to 
pneumoconiosis.


Sec. 722.3  General criteria; inclusion in and removal from the 
Secretary's list.

    (a) The Governor of any State or any duly authorized State agency 
may, at any time, request that the Secretary include such State's 
workers' compensation law on his list of those State workers' 
compensation laws providing adequate coverage for total disability or 
death due to pneumoconiosis. Each such request shall include a copy of 
the State workers' compensation law and any other pertinent State laws, 
a copy of any regulations, either proposed or promulgated, implementing 
such laws; and a copy of any administrative or court decision 
interpreting such laws or regulations, or, if such decisions are 
published in a readily available report, a citation to such decision.
    (b) Upon receipt of a request that a State be included on the 
Secretary's list, the Secretary shall include the State on the list if 
he finds that the State's workers' compensation law guarantees the 
payment of monthly and medical benefits to all persons who would be 
entitled to such benefits under the Black Lung Benefits Act at the time 
of the request, at a rate no less than that provided by the Black Lung 
Benefits Act. The criteria used by the Secretary in making such 
determination shall include, but shall not be limited to, the criteria 
set forth in section 421(b)(2) of the Act.
    (c) The Secretary may require each State included on the list to 
submit reports detailing the extent to which the State's workers' 
compensation laws, as reflected by statute, regulation, or 
administrative or court decision, continues to meet the requirements of 
paragraph (b) of this section. If the Secretary concludes that the 
State's workers' compensation law does not provide adequate coverage at 
any time, either because of changes to the State workers' compensation 
law or the Black Lung Benefits Act, he shall remove the State from the 
Secretary's list after providing the State with notice of such removal 
and an opportunity to be heard.

[[Page 55019]]

Sec. 722.4  The Secretary's list.

    (a) The Secretary has determined that publication of the 
Secretary's list in the Code of Federal Regulations is appropriate. 
Accordingly, in addition to its publication in the Federal Register as 
required by section 421 of the Black Lung Benefits Act, the list shall 
also appear in paragraph (b) of this section.
    (b) Upon review of all requests filed with the Secretary under 
section 421 of the Black Lung Benefits Act and this part, and 
examination of the workers' compensation laws of the States making such 
requests, the Secretary has determined that the workers' compensation 
law of each of the following listed States, for the period from the 
date shown in the list until such date as the Secretary may make a 
contrary determination, provides adequate coverage for pneumoconiosis.

State      Period commencing
None

    4. Part 725 is proposed to be revised as follows:

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

Subpart A--General

Sec.
725.1  Statutory provisions.
725.2  Purpose and applicability of this part.
725.3  Contents of this part.
725.4  Applicability of other parts in this title.
725.101  Definitions and use of terms.
725.102  Disclosure of program information.
725.103  Burden of proof.

Subpart B--Persons Entitled to Benefits, Conditions, and Duration of 
Entitlement

725.201  Who is entitled to benefits; contents of this subpart.

Conditions and Duration of Entitlement: Miner

725.202  Miner defined; conditions of entitlement, miner.
725.203  Duration and cessation of entitlement, miner.

Conditions and Duration of Entitlement: Miner's Dependents (Augmented 
Benefits)

725.204  Determination of relationship; spouse.
725.205  Determination of dependency; spouse.
725.206  Determination of relationship; divorced spouse.
725.207  Determination of dependency; divorced spouse.
725.208  Determination of relationship; child.
725.209  Determination of dependency; child.
725.210  Duration of augmented benefits.
725.211  Time of determination of relationship and dependency of 
spouse or child for purposes of augmentation of benefits.

Conditions and Duration of Entitlement: Miner's Survivors

725.212  Conditions of entitlement; surviving spouse or surviving 
divorced spouse.
725.213  Duration of entitlement; surviving spouse or surviving 
divorced spouse.
725.214  Determination of relationship; surviving spouse.
725.215  Determination of dependency; surviving spouse.
725.216  Determination of relationship; surviving divorced spouse.
725.217  Determination of dependency; surviving divorced spouse.
725.218  Conditions of entitlement; child.
725.219  Duration of entitlement; child.
725.220  Determination of relationship; child.
725.221  Determination of dependency; child.
725.222  Conditions of entitlement; parent, brother or sister.
725.223  Duration of entitlement; parent, brother or sister.
725.224  Determination of relationship; parent, brother or sister.
725.225  Determination of dependency; parent, brother or sister.
725.226  ``Good cause'' for delayed filing of proof of support.
725.227  Time of determination of relationship and dependency of 
survivors.
725.228  Effect of conviction of felonious and intentional homicide 
on entitlement to benefits.

Terms Used in This Subpart

725.229  Intestate personal property.
725.230  Legal impediment.
725.231  Domicile.
725.232  Member of the same household--``living with,'' ``living in 
the same household,'' and ``living in the miner's household,'' 
defined.
725.233  Support and contributions.

Subpart C--Filing of Claims

725.301  Who may file a claim
725.302  Evidence of authority to file a claim on behalf of another.
725.303  Date and place of filing of claims.
725.304  Forms and initial processing.
725.305  When a written statement is considered a claim.
725.306  Withdrawal of a claim.
725.307  Cancellation of a request for withdrawal.
725.308  Time limits for filing claims.
725.309  Additional claims; effect of a prior denial of benefits.
725.310  Modification of awards and denials.
725.311  Communications with respect to claims; time computations.

Subpart D--Adjudication Officers; Parties and Representatives

725.350  Who are the adjudication officers.
725.351  Powers of adjudication officers.
725.352  Disqualification of adjudication officer.
725.360  Parties to proceedings
725.361  Party amicus curiae.
725.362  Representation of parties.
725.363  Qualification of representative.
725.364  Authority of representative.
725.365  Approval of representative's fees; lien against benefits.
725.366  Fees for representatives.
725.367  Payment of a claimant's attorney's fee by responsible 
operator or fund.

Subpart E--Adjudication of Claims by the District Director

725.401  Claims development--general.
725.402  Approved State workers' compensation law.
725.403  [Reserved]
725.404  Development of evidence--general
725.405  Development of medical evidence; scheduling of medical 
examinations and tests.
725.406  Medical examinations and tests.
725.407  Identification and notification of responsible operator.
725.408  Operator's response to notification.
725.409  Denial of a claim by reason of abandonment.
725.410  Initial findings by the district director.
725.411  Initial finding--eligibility.
725.412  Initial finding--liability.
725.413  Initial adjudication by the district director.
725.414  Development of evidence.
725.415  Action by the district director after development of 
operator's evidence.
725.416  Conferences.
725.417  Action at the conclusion of conference.
725.418  Proposed decision and order.
725.419  Response to proposed decision and order.
725.420  Initial determinations.
725.421  Referral of a claim to the Office of Administrative Law 
Judges.
725.422  Legal Assistance.
725.423  Extensions of time.

Subpart F--Hearings

725.450  Right to a hearing.
725.451  Request for hearing.
725.452  Type of hearing; parties.
725.453  Notice of hearing.
725.454  Time and place of hearing; transfer of cases.
725.455  Hearing procedures; generally.
725.456  Introduction of documentary evidence.
725.457  Witnesses.
725.458  Depositions; interrogatories.
725.459  Witness fees.
725.460  Consolidated hearings.
725.461  Waiver of right to appear and present evidence.
725.462  Withdrawal of controversion of issues set for formal 
hearing; effect.
725.463  Issues to be resolved at hearing; new issues.
725.464  Record of hearing.
725.465  Dismissals for cause.
725.466  Order of dismissal.
725.475  Termination of hearings.
725.476  Issuance of decision and order.
725.477  Form and contents of decision and order.

[[Page 55020]]

725.478  Filing and service of decision and order.
725.479  Finality of decisions and orders.
725.480  Modification of decisions and orders.
725.481  Right to appeal to the Benefits Review Board.
725.482  Judicial review.
725.483  Costs in proceedings brought without reasonable grounds.

Subpart G--Responsible Coal Mine Operators

725.490  Statutory provisions and scope.
725.491  Operator defined.
725.492  Successor operator defined.
725.493  Employment relationship defined.
725.494  Potentially liable operators.
725.495  Criteria for determining a responsible operator.
725.496  Special claims transferred to the Trust Fund.
725.497  Procedures in special claims transferred to the Trust Fund.

Subpart H--Payment of Benefits

General Provisions

725.501  Payment provisions generally.
725.502  When benefit payments are due; manner of payment.
725.503  Date from which benefits are payable.
725.504  Payments to a claimant employed as a miner.
725.505  Payees.
725.506  Payment on behalf of another; ``legal guardian'' defined.
725.507  Guardian for minor or incompetent.
725.510  Representative payee.
725.511  Use and benefit defined.
725.512  Support of legally dependent spouse, child, or parent.
725.513  Accountability; transfer.
725.514  Certification to dependent of augmentation portion of 
benefit.
725.515  Assignment and exemption from claims of creditors.
725.520  Computation of benefits.
725.521  Commutation of payments; lump sum awards.
725.522  Payments prior to final adjudication.
725.530  Operator payments; generally.
725.531  Receipt for payment.

Increases and Reductions of Benefits

725.532  Suspension, reduction, or termination of payments.
725.533  Modification of benefit amounts; general.
725.534  Reduction of State benefits.
725.535  Reductions; receipt of State or Federal benefit.
725.536  Reductions; excess earnings.
725.537  Reductions; retroactive effect of an additional claim for 
benefits.
725.538  Reductions; effect of augmentation of benefits based on 
subsequent qualification of individual.
725.539  More than one reduction event.

Overpayments; Underpayments

725.540  Overpayments.
725.541  Notice of waiver of adjustment or recovery of overpayment.
725.542  When waiver of adjustment or recovery may be applied.
725.543  Standards for waiver of adjustment or recovery.
725.544  Collection and compromise of claims for overpayment.
725.545  Underpayments.
725.546  Relation to provisions for reductions or increases.
725.547  Applicability of overpayment and underpayment provisions to 
operator or carrier.
725.548  Procedures applicable to overpayments and underpayments.

Subpart I--Enforcement of Liability; Reports

725.601  Enforcement generally.
725.602  Reimbursement of the fund.
725.603  Payments by the fund on behalf of an operator; liens.
725.604  Enforcement of final awards.
725.605  Defaults.
725.606  Security for the payment of benefits.
725.607  Payments in addition to compensation.
725.608  Interest.
725.609  Enforcement against other persons.
725.620  Failure to secure benefits; other penalties.
725.621  Reports.

Subpart J--Medical Benefits and Vocational Rehabilitation

725.701  Availability of medical benefits.
725.702  Claims for medical benefits only under section 11 of the 
Reform Act.
725.703  Physician defined.
725.704  Notification of right to medical benefits; authorization of 
treatment.
725.705  Arrangements for medical care.
725.706  Authorization to provide medical services.
725.707  Reports of physicians and supervision of medical care.
725.708  Disputes concerning medical benefits.
725.710  Objective of vocational rehabilitation.
725.711  Requests for referral to vocational rehabilitation 
assistance.

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

Subpart A--General


Sec. 725.1  Statutory provisions.

    (a) General. Title IV of the Federal Mine Safety and Health Act of 
1977, as amended by the Black Lung Benefits Reform Act of 1977, the 
Black Lung Benefits Revenue Act of 1977, the Black Lung Benefits 
Revenue Act of 1981 and the Black Lung Benefits Amendments of 1981, 
provides for the payment of benefits to a coal miner who is totally 
disabled due to pneumoconiosis (black lung disease) and to certain 
survivors of a miner who dies due to pneumoconiosis. For claims filed 
prior to January 1, 1982, certain survivors could receive benefits if 
the miner was totally (or for claims filed prior to June 30, 1982, in 
accordance with section 411(c)(5) of the Act, partially) disabled due 
to pneumoconiosis, or if the miner died due to pneumoconiosis.
    (b) Part B. Part B of title IV of the Act provided that all claims 
filed between December 30, 1969, and June 30, 1973, are to be filed 
with, processed, and paid by the Secretary of Health, Education, and 
Welfare through the Social Security Administration; claims filed by the 
survivor of a miner before January 1, 1974, or within 6 months of the 
miner's death if death occurred before January 1, 1974, and claims 
filed by the survivor of a miner who was receiving benefits under part 
B of title IV of the Act at the time of death, if filed within 6 months 
of the miner's death, are also adjudicated and paid by the Social 
Security Administration.
    (c) Section 415. Claims filed by a miner between July 1 and 
December 31, 1973, are adjudicated and paid under section 415. Section 
415 provides that a claim filed between the appropriate dates shall be 
filed with and adjudicated by the Secretary of Labor under certain 
incorporated provisions of the Longshoremen's and Harbor Workers' 
Compensation Act (33 U.S.C. 901 et seq.). A claim approved under 
section 415 is paid under part B of title IV of the Act for periods of 
eligibility occurring between July 1 and December 31, 1973, by the 
Secretary of Labor and for periods of eligibility thereafter, is paid 
by a coal mine operator which is determined liable for the claim or the 
Black Lung Disability Trust Fund if no operator is identified or if the 
miner's last coal mine employment terminated prior to January 1, 1970. 
An operator which may be found liable for a section 415 claim is 
notified of the claim and allowed to participate fully in the 
adjudication of such claim. A claim filed under section 415 is for all 
purposes considered as if it were a part C claim (see paragraph (d) of 
this section) and the provisions of part C of title IV of the Act are 
fully applicable to a section 415 claim except as is otherwise provided 
in section 415.
    (d) Part C. Claims filed by a miner or survivor on or after January 
1, 1974, are filed, adjudicated, and paid under the provisions of part 
C of title IV of the Act. Part C requires that a claim filed on or 
after January 1, 1974, shall be filed under an applicable approved 
State workers' compensation law, or if no such law has been approved by 
the Secretary of Labor, the claim may be filed with the Secretary of 
Labor under section 422 of the Act. Claims filed with the Secretary of 
Labor under part C are

[[Page 55021]]

processed and adjudicated by the Secretary and paid by a coal mine 
operator. If the miner's last coal mine employment terminated before 
January 1, 1970, or if no responsible operator can be identified, 
benefits are paid by the Black Lung Disability Trust Fund. Claims 
adjudicated under part C are subject to certain incorporated provisions 
of the Longshoremen's and Harbor Workers' Compensation Act.
    (e) Section 435. Section 435 of the Act affords each person who 
filed a claim for benefits under part B, section 415, or part C, and 
whose claim had been denied or was still pending as of March 1, 1978, 
the effective date of the Black Lung Benefits Reform Act of 1977, the 
right to have his or her claim reviewed on the basis of the 1977 
amendments to the Act, and under certain circumstances to submit new 
evidence in support of the claim.
    (f) Changes made by the Black Lung Benefits Reform Act of 1977. In 
addition to those changes which are reflected in paragraphs (a) through 
(e) of this section, the Black Lung Benefits Reform Act of 1977 
contains a number of significant amendments to the Act's standards for 
determining eligibility for benefits. Among these are:
    (1) A provision which clarifies the definition of 
``pneumoconiosis'' to include any ``chronic dust disease of the lung 
and its sequelae, including respiratory and pulmonary impairments, 
arising out of coal mine employment'';
    (2) A provision which defines ``miner'' to include any person who 
works or has worked in or around a coal mine or coal preparation 
facility, and in coal mine construction or coal transportation under 
certain circumstances;
    (3) A provision which limits the denial of a claim solely on the 
basis of employment in a coal mine;
    (4) A provision which authorizes the Secretary of Labor to 
establish standards and develop criteria for determining total 
disability or death due to pneumoconiosis with respect to a part C 
claim;
    (5) A new presumption which requires the payment of benefits to the 
survivors of a miner who was employed for 25 or more years in the mines 
under certain conditions;
    (6) Provisions relating to the treatment to be accorded a 
survivor's affidavit, certain X-ray interpretations, and certain 
autopsy reports in the development of a claim; and
    (7) Other clarifying, procedural, and technical amendments.
    (g) Changes made by the Black Lung Benefits Revenue Act of 1977. 
The Black Lung Benefits Revenue Act of 1977 established the Black Lung 
Disability Trust Fund which is financed by a specified tax imposed upon 
each ton of coal (except lignite) produced and sold or used in the 
United States after March 31, 1978. The Secretary of the Treasury is 
the managing trustee of the fund and benefits are paid from the fund 
upon the direction of the Secretary of Labor. The fund was made liable 
for the payment of all claims approved under section 415, part C and 
section 435 of the Act for all periods of eligibility occurring on or 
after January 1, 1974, with respect to claims where the miner's last 
coal mine employment terminated before January 1, 1970, or where 
individual liability can not be assessed against a coal mine operator 
due to bankruptcy, insolvency, or the like. The fund was also 
authorized to pay certain claims which a responsible operator has 
refused to pay within a reasonable time, and to seek reimbursement from 
such operator. The purpose of the fund and the Black Lung Benefits 
Revenue Act of 1977 was to insure that coal mine operators, or the coal 
industry, will fully bear the cost of black lung disease for the 
present time and in the future. The Black Lung Benefits Revenue Act of 
1977 also contained other provisions relating to the fund and 
authorized a coal mine operator to establish its own trust fund for the 
payment of certain claims.
    (h) Changes made by the Black Lung Benefits Amendments of 1981. In 
addition to the change reflected in paragraph (a) of this section, the 
Black Lung Benefits Amendments of 1981 made a number of significant 
changes in the Act's standards for determining eligibility for benefits 
and concerning the payment of such benefits. The following changes are 
all applicable to claims filed on or after January 1, 1982:
    (1) The Secretary of Labor may re-read any X-ray submitted in 
support of a claim and may rely upon a second opinion concerning such 
an X-ray as a means of auditing the validity of the claim;
    (2) The rebuttable presumption that the death of a miner with ten 
or more years employment in the coal mines, who died of a respirable 
disease, was due to pneumoconiosis is no longer applicable;
    (3) The rebuttable presumption that the total disability of a miner 
with fifteen or more years employment in the coal mines, who has 
demonstrated a totally disabling respiratory or pulmonary impairment, 
is due to pneumoconiosis is no longer applicable;
    (4) In the case of deceased miners, where no medical or other 
relevant evidence is available, only affidavits from persons not 
eligible to receive benefits as a result of the adjudication of the 
claim will be considered sufficient to establish entitlement to 
benefits;
    (5) Unless the miner was found entitled to benefits as a result of 
a claim filed prior to January 1, 1982, benefits are payable on 
survivors' claims filed on and after January 1, 1982, only when the 
miner's death was due to pneumoconiosis;
    (6) Benefits payable under this part are subject to an offset on 
account of excess earnings by the miner; and
    (7) Other technical amendments.
    (i) Changes made by the Black Lung Benefits Revenue Act of 1981. 
The Black Lung Benefits Revenue Act of 1981 temporarily doubles the 
amount of the tax upon coal until the fund shall have repaid all 
advances received from the United States Treasury and the interest on 
all such advances. The fund is also made liable for the payment of 
certain claims previously denied under the 1972 version of the Act and 
subsequently approved under section 435 and for the reimbursement of 
operators and insurers for benefits previously paid by them on such 
claims. With respect to claims filed on or after January 1, 1982, the 
fund's authorization for the payment of interim benefits is limited to 
the payment of prospective benefits only. These changes also define the 
rates of interest to be paid to and by the fund.
    (j) Longshoremen's Act provisions. The adjudication of claims filed 
under sections 415, 422 and 435 of the Act is governed by various 
procedural and other provisions contained in the Longshoremen's and 
Harbor Workers' Compensation Act (LHWCA), as amended from time to time, 
which are incorporated within the Act by sections 415 and 422. The 
incorporated LHWCA provisions are applicable under the Act except as is 
otherwise provided by the Act or as provided by regulations of the 
Secretary. Although occupational disease benefits are also payable 
under the LHWCA, the primary focus of the procedures set forth in that 
Act is upon a time definite of traumatic injury or death. Because of 
this and other significant differences between a black lung and 
longshore claim, it is determined, in accordance with the authority set 
forth in section 422 of the Act, that certain of the incorporated 
procedures prescribed by the LHWCA must be altered to fit the 
circumstances ordinarily confronted in the adjudication of a black lung 
claim. The changes made are based upon the Department's experience in 
processing black lung claims since July 1, 1973,

[[Page 55022]]

and all such changes are specified in this part or part 727 of this 
subchapter (see Sec. 725.4(d)). No other departure from the 
incorporated provisions of the LHWCA is intended.
    (k) Social Security Act provisions. Section 402 of the Act 
incorporates certain definitional provisions from the Social Security 
Act, 42 U.S.C. 301 et seq. Section 430 provides that the 1972, 1977 and 
1981 amendments to part B of the Act shall also apply to part C ``to 
the extent appropriate.'' Sections 412 and 413 incorporate various 
provisions of the Social Security Act into part B of the Act. To the 
extent appropriate, these provisions also apply to part C. In certain 
cases, the Department has varied the terms of the Social Security Act 
provisions to accommodate the unique needs of the black lung benefits 
program. Parts of the Longshore and Harbor Workers' Compensation Act 
are also incorporated into part C. Where the incorporated provisions of 
the two acts are inconsistent, the Department has exercised its broad 
regulatory powers to choose the extent to which incorporation is 
appropriate.


Sec. 725.2  Purpose and applicability of this part.

    (a) This part sets forth the procedures to be followed and 
standards to be applied in filing, processing, adjudicating, and paying 
claims filed under part C of title IV of the Act.
    (b) This part applies to all claims filed under part C of title IV 
of the Act on or after August 18, 1978 and shall also apply to claims 
that were pending on August 18, 1978.
    (c) The provisions of this part reflect revisions that became 
effective on [the effective date of the final rule]. This part applies 
to all claims filed, and all benefits payments made, after [the 
effective date of the final rule]. With the exception of the following 
sections, this part shall also apply to the adjudication of claims that 
were pending on [the effective date of the final rule]: Secs. 725.309, 
725.310, 725.351, 725.360, 725.406, 725.407, 725.408, 725.410, 725.411, 
725.412, 725.413, 725.414, 725.415, 725.417, 725.418, 725.423, 725.454, 
725.456, 725.457, 725.459, 725.491, 725.492, 725.493, 725.494, 725.495, 
725.547. The version of those sections set forth in 20 CFR, parts 500 
to end, edition revised as of April 1, 1996, apply to the adjudications 
of claims that were pending on [the effective date of the final rule]. 
For purposes of construing the provisions of this section, a claim 
shall be considered pending on [the effective date of the final rule] 
if it was not finally denied more than one year prior to that date.


Sec. 725.3  Contents of this part.

    (a) This subpart describes the statutory provisions which relate to 
claims considered under this part, the purpose and scope of this part, 
definitions and usages of terms applicable to this part, and matters 
relating to the availability of information collected by the Department 
of Labor in connection with the processing of claims.
    (b) Subpart B contains criteria for determining who may be found 
entitled to benefits under this part and other provisions relating to 
the conditions and duration of eligibility of a particular individual.
    (c) Subpart C describes the procedures to be followed and action to 
be taken in connection with the filing of a claim under this part.
    (d) Subpart D sets forth the duties and powers of the persons 
designated by the Secretary of Labor to adjudicate claims and 
provisions relating to the rights of parties and representatives of 
parties.
    (e) Subpart E contains the procedures for developing evidence and 
adjudicating entitlement and liability issues by the district director.
    (f) Subpart F describes the procedures to be followed if a hearing 
before the Office of Administrative Law Judges is required.
    (g) Subpart G contains provisions governing the identification of a 
coal mine operator which may be liable for the payment of a claim.
    (h) Subpart H contains provisions governing the payment of benefits 
with respect to an approved claim.
    (i) Subpart I describes the statutory mechanisms provided for the 
enforcement of a coal mine operator's liability, sets forth the 
penalties which may be applied in the case of a defaulting coal mine 
operator, and describes the obligation of coal operators and their 
insurance carriers to file certain reports.
    (j) Subpart J describes the right of certain beneficiaries to 
receive medical treatment benefits and vocational rehabilitation under 
the Act.


Sec. 725.4  Applicability of other parts in this title.

    (a) Part 718. Part 718 of this subchapter, which contains the 
criteria and standards to be applied in determining whether a miner is 
or was totally disabled due to pneumoconiosis, or whether a miner died 
due to pneumoconiosis, shall be applicable to the determination of 
claims under this part. Claims filed after March 31, 1980, are subject 
to part 718 as promulgated by the Secretary in accordance with section 
402(f)(1) of the Act on February 29, 1980 (see Sec. 725.2(c)). The 
criteria contained in subpart C of part 727 of this subchapter are 
applicable in determining claims filed prior to April 1, 1980, under 
this part, and such criteria shall be applicable at all times with 
respect to claims filed under this part and under section 11 of the 
Black Lung Benefits Reform Act of 1977.
    (b) Parts 715, 717, and 720. Pertinent and significant provisions 
of Parts 715, 717, and 720 of this subchapter (contained in 20 CFR, 
parts 500 to end, edition revised as of April 1, 1978), which 
established the procedures for the filing, processing, and payment of 
claims filed under section 415 of the Act, are included within this 
part as appropriate.
    (c) Part 726. Part 726 of this subchapter, which sets forth the 
obligations imposed upon a coal operator to insure or self-insure its 
liability for the payment of benefits to certain eligible claimants, is 
applicable to this part as appropriate.
    (d) Part 727. Part 727 of this subchapter, which governs the 
review, adjudication and payment of pending and denied claims under 
section 435 of the Act, is applicable with respect to such claims. The 
criteria contained in subpart C of part 727 for determining a 
claimant's eligibility for benefits are applicable under this part with 
respect to all claims filed before April 1, 1980, and to all claims 
filed under this part and under section 11 of the Black Lung Benefits 
Reform Act of 1977. Because the part 727 regulations affect an 
increasingly smaller number of claims, however, the Department has 
discontinued publication of the criteria in the Code of Federal 
Regulations. The part 727 criteria may be found at 43 FR 36818, Aug. 
18, 1978 or 20 CFR, parts 500 to end, edition revised as of April 1, 
1996.
    (e) Part 410. Part 410 of this title, which sets forth provisions 
relating to a claim for black lung benefits under part B of title IV of 
the Act, is inapplicable to this part except as is provided in this 
part, or in part 718 of this subchapter.


Sec. 725.101  Definitions and use of terms.

    (a) Definitions. For purposes of this subchapter, except where the 
content clearly indicates otherwise, the following definitions apply:
    (1) The Act means the Federal Coal Mine Health and Safety Act, 
Public Law 91-173, 83 Stat. 742, 30 U.S.C. 801-960, as amended by the 
Black Lung Benefits Act of 1972, the Mine Safety and Health Act of 
1977, the Black Lung Benefits Reform Act of 1977, the Black Lung 
Benefits Revenue Act of 1977, the Black Lung Benefits Revenue Act of 
1981, and

[[Page 55023]]

the Black Lung Benefits Amendments of 1981.
    (2) The Longshoremen's Act or LHWCA means the Longshoremen's and 
Harbor Workers' Compensation Act of March 4, 1927, c. 509, 44 Stat. 
1424, 33 U.S.C. 901-950, as amended from time to time.
    (3) The Social Security Act means the Social Security Act, Act of 
August 14, 1935, c. 531, 49 Stat. 620, 42 U.S.C. 301-431, as amended 
from time to time.
    (4) Administrative law judge means a person qualified under 5 
U.S.C. 3105 to conduct hearings and adjudicate claims for benefits 
filed pursuant to section 415 and part C of the Act. Until March 1, 
1979, it shall also mean an individual appointed to conduct such 
hearings and adjudicate such claims under Public Law 94-504.
    (5) Beneficiary means a miner or any surviving spouse, divorced 
spouse, child, parent, brother or sister, who is entitled to benefits 
under either section 415 or part C of title IV of the Act.
    (6) Benefits means all money or other benefits paid or payable 
under section 415 or part C of title IV of the Act on account of 
disability or death due to pneumoconiosis, including augmented benefits 
(see Sec. 725.520(c)). The term also includes any expenses related to 
the medical examination and testing authorized by the district director 
pursuant to Sec. 725.406.
    (7) Benefits Review Board or Board means the Benefits Review Board, 
U.S. Department of Labor, an appellate tribunal appointed by the 
Secretary of Labor pursuant to the provisions of section 21(b)(1) of 
the LHWCA. See parts 801 and 802 of this title.
    (8) Black Lung Disability Trust Fund or the fund means the Black 
Lung Disability Trust Fund established by the Black Lung Benefits 
Revenue Act of 1977, as amended by the Black Lung Benefits Revenue Act 
of 1981, for the payment of certain claims adjudicated under this part 
(see subpart G of this part).
    (9) Chief Administrative Law Judge means the Chief Administrative 
Law Judge of the Office of Administrative Law Judges, U.S. Department 
of Labor, 800 K Street, NW., suite 400, Washington, DC 20001-8002.
    (10) Claim means a written assertion of entitlement to benefits 
under section 415 or part C of title IV of the Act, submitted in a form 
and manner authorized by the provisions of this subchapter.
    (11) Claimant means an individual who files a claim for benefits 
under this part.
    (12) Coal mine means an area of land and all structures, 
facilities, machinery, tools, equipment, shafts, slopes, tunnels, 
excavations and other property, real or personal, placed upon, under or 
above the surface of such land by any person, used in, or to be used 
in, or resulting from, the work of extracting in such area bituminous 
coal, lignite or anthracite from its natural deposits in the earth by 
any means or method, and in the work of preparing the coal so 
extracted, and includes custom coal preparation facilities.
    (13) Coal preparation means the breaking, crushing, sizing, 
cleaning, washing, drying, mixing, storing and loading of bituminous 
coal, lignite or anthracite, and such other work of preparing coal as 
is usually done by the operator of a coal mine. For purposes of this 
definition, the term does not include coal preparation performed by 
coke oven workers.
    (14) Department means the United States Department of Labor.
    (15) Director means the Director, OWCP, or his or her designee.
    (16) District Director means a person appointed as provided in 
sections 39 and 40 of the LHWCA, or his or her designee, who is 
authorized to develop and adjudicate claims as provided in this 
subchapter (see Sec. 725.350). The term District Director applies 
instead of the term Deputy Commissioner wherever that term appears in 
this subchapter. This application is for administrative purposes only 
and in no way affects the power or authority of the position as 
established in the statute. Any action taken by a person under the 
authority of a district director will be considered the action of a 
deputy commissioner.
    (17) Division or DCMWC means the Division of Coal Mine Workers' 
Compensation in the OWCP, Employment Standards Administration, United 
States Department of Labor.
    (18) Insurer or carrier means any private company, corporation, 
mutual association, reciprocal or interinsurance exchange, or any other 
person or fund, including any State fund, authorized under the laws of 
a State to insure employers' liability under workers' compensation 
laws. The term also includes the Secretary of Labor in the exercise of 
his or her authority under section 433 of the Act.
    (19) Miner or coal miner means any individual who works or has 
worked in or around a coal mine or coal preparation facility in the 
extraction or preparation of coal. The term also includes an individual 
who works or has worked in coal mine construction or transportation in 
or around a coal mine, to the extent such individual was exposed to 
coal dust as a result of such employment (see Sec. 725.202). For 
purposes of this definition, the term does not include coke oven 
workers whose activities involve the preparation or use of coal for the 
coke manufacturing process.
    (20) The Nation's coal mines means all coal mines located in any 
State.
    (21) Office or OWCP means the Office of Workers' Compensation 
Programs, United States Department of Labor.
    (22) Office of Administrative Law Judges means the Office of 
Administrative Law Judges, U.S. Department of Labor.
    (23) Operator means any owner, lessee, or other person who 
operates, controls or supervises a coal mine, including a prior or 
successor operator as defined in section 422 of the Act and certain 
transportation and construction employers (see subpart G of this part).
    (24) Person means an individual, partnership, association, 
corporation, firm, subsidiary or parent of a corporation, or other 
organization or business entity.
    (25) Pneumoconiosis means a chronic dust disease of the lung and 
its sequelae, including respiratory and pulmonary impairments, arising 
out of coal mine employment (see part 718 of this subchapter).
    (26) Responsible operator means an operator which has been 
determined to be liable for the payment of benefits to a claimant for 
periods of eligibility after December 31, 1973, with respect to a claim 
filed under section 415 or part C of title IV of the Act or reviewed 
under section 435 of the Act.
    (27) Secretary means the Secretary of Labor, United States 
Department of Labor, or a person, authorized by him or her to perform 
his or her functions under title IV of the Act.
    (28) State includes any state of the United States, the District of 
Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, American 
Samoa, Guam, the Trust Territory of the Pacific Islands, and prior to 
January 3, 1959, and August 21, 1959, respectively, the territories of 
Alaska and Hawaii.
    (29) Total disability and partial disability, for purposes of this 
part, have the meaning given them as provided in part 718 of this 
subchapter.
    (30) Underground coal mine means a coal mine in which the earth and 
other materials which lie above and around the natural deposit of coal 
(i.e., overburden) are not removed in mining; including all land, 
structures, facilities, machinery, tools, equipment, shafts, slopes, 
tunnels, excavations and other property, real or personal, appurtenant 
thereto.

[[Page 55024]]

    (31) A workers' compensation law means a law providing for payment 
of benefits to employees, and their dependents and survivors, for 
disability on account of injury, including occupational disease, or 
death, suffered in connection with their employment. A payment funded 
wholly out of general revenues shall not be considered a payment under 
a workers' compensation law.
    (32) Year means a period of one calendar year (365 days, or 366 
days if one of the days is February 29), or partial periods totalling 
one year, during which the miner worked in or around a coal mine or 
mines. A ``working day'' means any day or part of a day for which a 
miner received pay for work as a miner, including any day for which the 
miner received pay while on an approved absence, such as vacation or 
sick leave.
    (i) If the evidence establishes that the miner worked in or around 
coal mines at least 125 working days during a calendar year or partial 
periods totalling one year, then the miner has worked one year in coal 
mine employment for all purposes under the Act. If a miner worked fewer 
than 125 working days in a year, he or she has worked a fractional year 
based on the ratio of the actual number of days worked to 125. Proof 
that the miner worked more than 125 working days in a calendar year or 
partial periods totalling a year, shall not establish more than one 
year.
    (ii) To the extent the evidence permits, the beginning and ending 
dates of all periods of coal mine employment shall be ascertained. The 
dates and length of employment may be established by any credible 
evidence including (but not limited to) company records, pension 
records, earnings statements, coworker affidavits, and sworn testimony. 
If the evidence establishes that the miner's employment lasted for a 
calendar year, it shall be presumed, in the absence of evidence to the 
contrary, that the miner spent at least 125 working days in such 
employment.
    (iii) If the evidence is insufficient to establish the beginning 
and ending dates of the miner's coal mine employment, or the miner's 
employment lasted less than a calendar year, then the adjudication 
officer may use the following formula: divide the miner's yearly income 
from work as a miner by the coal mine industry's average daily earnings 
for that year, as reported by the Bureau of Labor Statistics (BLS). A 
copy of the BLS table shall be made a part of the record if the 
adjudication officer uses this method to establish the length of the 
miner's work history.
    (iv) No periods of coal mine employment occurring outside the 
United States shall be considered in computing the miner's work 
history.
    (b) Statutory terms. The definitions contained in this section 
shall not be construed in derogation of terms of the Act.
    (c) Dependents and survivors. Dependents and survivors are those 
persons described in subpart B of this part.


Sec. 725.102  Disclosure of program information.

    (a) All reports, records, or other documents filed with the OWCP 
with respect to claims are the records of the OWCP. The Director or his 
or her designee shall be the official custodian of those records 
maintained by the OWCP at its national office. The District Director 
shall be the official custodian of those records maintained at a 
district office.
    (b) The official custodian of any record sought to be inspected 
shall permit or deny inspection in accordance with the Department of 
Labor's regulations pertaining thereto (see 29 CFR part 70). The 
original record in any such case shall not be removed from the Office 
of the custodian for such inspection. The custodian may, in his or her 
discretion, deny inspection of any record or part thereof which is of a 
character specified in 5 U.S.C. 552(b) if in his or her opinion such 
inspection may result in damage, harm, or harassment to the beneficiary 
or to any other person. For special provisions concerning release of 
information regarding injured employees undergoing vocational 
rehabilitation, see Sec. 702.508 of this chapter.
    (c) Any person may request copies of records he or she has been 
permitted to inspect. Such requests shall be addressed to the official 
custodian of the records sought to be copied. The official custodian 
shall provide the requested copies under the terms and conditions 
specified in the Department of Labor's regulations relating thereto 
(see 29 CFR part 70).
    (d) Any party to a claim (Sec. 725.360) or his or her duly 
authorized representative shall be permitted upon request to inspect 
the file which has been compiled in connection with such claim. Any 
party to a claim or representative of such party shall upon request be 
provided with a copy of any or all material contained in such claim 
file. A request for information by a party or representative made under 
this paragraph shall be answered within a reasonable time after receipt 
by the Office. Internal documents prepared by the district director 
which do not constitute evidence of a fact which must be established in 
connection with a claim shall not be routinely provided or presented 
for inspection in accordance with a request made under this paragraph.


Sec. 725.103  Burden of proof.

    Except as otherwise provided in this part and part 718 of this 
subchapter, the burden of proving a fact alleged in connection with any 
provision shall rest with the party making such allegation.

Subpart B--Persons Entitled to Benefits, Conditions, and Duration 
of Entitlement


Sec. 725.201  Who is entitled to benefits; contents of this subpart.

    (a) Section 415 and part C of the Act provide for the payment of 
periodic benefits in accordance with this part to:
    (1) A miner (see Sec. 725.202) who is determined to be totally 
disabled due to pneumoconiosis; or
    (2) The surviving spouse or surviving divorced spouse or, where 
neither exists, the child of a deceased miner, where the deceased 
miner:
    (i) Was receiving benefits under section 415 or part C of title IV 
of the Act as a result of a claim filed prior to January 1, 1982; or
    (ii) Is determined as a result of a claim filed prior to January 1, 
1982, to have been totally disabled due to pneumoconiosis at the time 
of death, or to have died due to pneumoconiosis. Survivors of miners 
whose claims are filed on or after January 1, 1982, must establish that 
the deceased miner's death was due to pneumoconiosis in order to 
establish their entitlement to benefits, except where entitlement is 
established under Sec. 718.306 of this subchapter on a survivor's claim 
filed prior to June 30, 1982, or;
    (3) The child of a miner's surviving spouse who was receiving 
benefits under section 415 or part C of title IV of the Act at the time 
of such spouse's death; or
    (4) The surviving dependent parents, where there is no surviving 
spouse or child, or the surviving dependent brothers or sisters, where 
there is no surviving spouse, child, or parent, of a miner, where the 
deceased miner;
    (i) Was receiving benefits under section 415 or part C of title IV 
of the Act as a result of a claim filed prior to January 1, 1982; or
    (ii) Is determined as a result of a claim filed prior to January 1, 
1982, to have been totally disabled due to

[[Page 55025]]

pneumoconiosis at the time of death, or to have died due to 
pneumoconiosis. Survivors of miners whose claims are filed on or after 
January 1, 1982, must establish that the deceased miner's death was due 
to pneumoconiosis in order to establish their entitlement to benefits, 
except where entitlement is established under Sec. 718.306 of this 
subchapter on a survivor's claim filed prior to June 30, 1982.
    (b) Section 411(c)(5) of the Act provides for the payment of 
benefits to the eligible survivors of a miner employed for 25 or more 
years in the mines prior to June 30, 1971, if the miner's death 
occurred on or before March 1, 1978, and if the claim was filed prior 
to June 30, 1982, unless it is established that at the time of death, 
the miner was not totally or partially disabled due to pneumoconiosis. 
For the purposes of this part the term ``total disability'' shall mean 
partial disability with respect to a claim for which eligibility is 
established under section 411(c)(5) of the Act. See Sec. 718.306 of 
this subchapter which implements this provision of the Act.
    (c) The provisions contained in this subpart describe the 
conditions of entitlement to benefits applicable to a miner, or a 
surviving spouse, child, parent, brother, or sister, and the events 
which establish or terminate entitlement to benefits.
    (d) In order for an entitled miner or surviving spouse to qualify 
for augmented benefits because of one or more dependents, such 
dependents must meet relationship and dependency requirements with 
respect to such beneficiary prescribed by or pursuant to the Act. Such 
requirements are also set forth in this subpart.

Conditions and Duration of Entitlement: Miner


Sec. 725.202  Miner defined; condition of entitlement, miner.

    (a) Miner defined. A ``miner'' for the purposes of this part is any 
person who works or has worked in or around a coal mine or coal 
preparation facility in the extraction, preparation, or transportation 
of coal, and any person who works or has worked in coal mine 
construction or maintenance in or around a coal mine or coal 
preparation facility. There shall be a rebuttable presumption that any 
person working in or around a coal mine or coal preparation facility is 
a miner. This presumption may be rebutted by proof that:
    (1) The person was not engaged in the extraction, preparation or 
transportation of coal while working at the mine site, or in 
maintenance or construction of the mine site; or
    (2) The individual was not regularly employed in or around a coal 
mine or coal preparation facility.
    (b) Coal mine construction and transportation workers; special 
provisions. A coal mine construction or transportation worker shall be 
considered a miner to the extent such individual is or was exposed to 
coal mine dust as a result of employment in or around a coal mine or 
coal preparation facility. A transportation worker shall be considered 
a miner to the extent that his or her work is integral to the 
extraction or preparation of coal. A construction worker shall be 
considered a miner to the extent that his or her work is integral to 
the building of a coal or underground mine (see Sec. 725.101(a)(12) and 
(30)).
    (1) There shall be a rebuttable presumption that such individual 
was exposed to coal mine dust during all periods of such employment 
occurring in or around a coal mine or coal preparation facility for 
purposes of:
    (i) Determining whether such individual is or was a miner;
    (ii) Establishing the applicability of any of the presumptions 
described in section 411(c) of the Act and part 718 of this subchapter; 
and
    (iii) Determining the identity of a coal mine operator liable for 
the payment of benefits in accordance with Sec. 725.495.
    (2) The presumption may be rebutted by evidence which demonstrates 
that:
    (i) The individual was not regularly exposed to coal mine dust 
during his or her work in or around a coal mine or coal preparation 
facility; or
    (ii) The individual did not work regularly in or around a coal mine 
or coal preparation facility.
    (c) A person who is or was a self-employed miner or independent 
contractor, and who otherwise meets the requirements of this paragraph, 
shall be considered a miner for the purposes of this part.
    (d) Conditions of entitlement; miner. An individual is eligible for 
benefits under this subchapter if the individual:
    (1) Is a miner as defined in this section; and
    (2) Has met the requirements for entitlement to benefits by 
establishing that he or she:
    (i) Has pneumoconiosis (see Sec. 718.202), and
    (ii) The pneumoconiosis arose out of coal mine employment (see 
Sec. 718.203), and
    (iii) Is totally disabled (see Sec. 718.204(c)), and
    (iv) The pneumoconiosis contributes to the total disability (see 
Sec. 718.204(c)); and
    (3) Has filed a claim for benefits in accordance with the 
provisions of this part.


Sec. 725.203  Duration and cessation of entitlement; miner.

    (a) An individual is entitled to benefits as a miner for each month 
beginning with the first month on or after January 1, 1974, in which 
the miner is totally disabled due to pneumoconiosis arising out of coal 
mine employment.
    (b) The last month for which such individual is entitled to 
benefits is the month before the month during which either of the 
following events first occurs:
    (1) The miner dies; or
    (2) The miner's total disability ceases (see Sec. 725.504).
    (c) An individual who has been finally adjudged to be totally 
disabled due to pneumoconiosis and is receiving benefits under the Act 
shall promptly notify the Office and the responsible coal mine 
operator, if any, if he or she engages in his or her usual coal mine 
work or comparable and gainful work.
    (d) Upon reasonable notice, an individual who has been finally 
adjudged entitled to benefits shall submit to any additional tests or 
examinations the Office deems appropriate if an issue arises pertaining 
to the validity of the original award.

Conditions and Duration of Entitlement: Miner's Dependents 
(Augmented Benefits)


Sec. 725.204  Determination of relationship; spouse.

    (a) For the purpose of augmenting benefits, an individual will be 
considered to be the spouse of a miner if:
    (1) The courts of the State in which the miner is domiciled would 
find that such individual and the miner validly married; or
    (2) The courts of the State in which the miner is domiciled would 
find, under the law they would apply in determining the devolution of 
the miner's intestate personal property, that the individual is the 
miner's spouse; or
    (3) Under State law, such individual would have the right of a 
spouse to share in the miner's intestate personal property; or
    (4) Such individual went through a marriage ceremony with the miner 
resulting in a purported marriage between them and which, but for a 
legal impediment, would have been a valid marriage, unless the 
individual entered into the purported marriage with knowledge that it 
was not a valid marriage, or if such individual and the

[[Page 55026]]

miner were not living in the same household in the month in which a 
request is filed that the miner's benefits be augmented because such 
individual qualifies as the miner's spouse.
    (b) The qualification of an individual for augmentation purposes 
under this section shall end with the month before the month in which:
    (1) The individual dies, or
    (2) The individual who previously qualified as a spouse for 
purposes of Sec. 725.520(c), entered into a valid marriage without 
regard to this section, with a person other than the miner.


Sec. 725.205  Determination of dependency; spouse.

    For the purposes of augmenting benefits, an individual who is the 
miner's spouse (see Sec. 725.204) will be determined to be dependent 
upon the miner if:
    (a) The individual is a member of the same household as the miner 
(see Sec. 725.232); or
    (b) The individual is receiving regular contributions from the 
miner for support (see Sec. 725.233(c)); or
    (c) The miner has been ordered by a court to contribute to such 
individual's support (see Sec. 725.233(e)); or
    (d) The individual is the natural parent of the son or daughter of 
the miner; or
    (e) The individual was married to the miner (see Sec. 725.204) for 
a period of not less than 1 year.


Sec. 725.206  Determination of relationship; divorced spouse.

    For the purposes of augmenting benefits with respect to any claim 
considered or reviewed under this part or part 727 of this subchapter 
(see Sec. 725.4(d)), an individual will be considered to be the 
divorced spouse of a miner if the individual's marriage to the miner 
has been terminated by a final divorce on or after the 10th anniversary 
of the marriage unless, if such individual was married to and divorced 
from the miner more than once, such individual was married to the miner 
in each calendar year of the period beginning 10 years immediately 
before the date on which any divorce became final.


Sec. 725.207  Determination of dependency; divorced spouse.

    For the purpose of augmenting benefits, an individual who is the 
miner's divorced spouse (Sec. 725.206) will be determined to be 
dependent upon the miner if:
    (a) The individual is receiving at least one-half of his or her 
support from the miner (see Sec. 725.233(g)); or
    (b) The individual is receiving substantial contributions from the 
miner pursuant to a written agreement (see Sec. 725.233(c) and (f)); or
    (c) A court order requires the miner to furnish substantial 
contributions to the individual's support (see Sec. 725.233(c) and 
(e)).


Sec. 725.208  Determination of relationship; child.

    As used in this section, the term ``beneficiary'' means only a 
surviving spouse entitled to benefits at the time of death (see 
Sec. 725.212), or a miner. An individual will be considered to be the 
child of a beneficiary if:
    (a) The courts of the State in which the beneficiary is domiciled 
(see Sec. 725.231) would find, under the law they would apply, that the 
individual is the beneficiary's child; or
    (b) The individual is the legally adopted child of such 
beneficiary; or
    (c) The individual is the stepchild of such beneficiary by reason 
of a valid marriage of the individual's parent or adopting parent to 
such beneficiary; or
    (d) The individual does not bear the relationship of child to such 
beneficiary under paragraph (a), (b), or (c) of this section, but 
would, under State law, have the same right as a child to share in the 
beneficiary's intestate personal property; or
    (e) The individual is the natural son or daughter of a beneficiary 
but is not a child under paragraph (a), (b), or (c) of this section, 
and is not considered to be the child of the beneficiary under 
paragraph (d) of this section if the beneficiary and the mother or the 
father, as the case may be, of the individual went through a marriage 
ceremony resulting in a purported marriage between them which but for a 
legal impediment (see Sec. 725.230) would have been a valid marriage; 
or
    (f) The individual is the natural son or daughter of a beneficiary 
but is not a child under paragraph (a), (b), or (c) of this section, 
and is not considered to be the child of the beneficiary under 
paragraph (d) or (e) of this section, such individual shall 
nevertheless be considered to be the child of the beneficiary if:
    (1) The beneficiary, prior to his or her entitlement to benefits, 
has acknowledged in writing that the individual is his or her son or 
daughter, or has been decreed by a court to be the parent of the 
individual, or has been ordered by a court to contribute to the support 
of the individual (see Sec. 725.233(e)) because the individual is his 
or her son or daughter; or
    (2) Such beneficiary is shown by satisfactory evidence to be the 
father or mother of the individual and was living with or contributing 
to the support of the individual at the time the beneficiary became 
entitled to benefits.


Sec. 725.209  Determination of dependency; child.

    (a) For purposes of augmenting the benefits of a miner or surviving 
spouse, the term ``beneficiary'' as used in this section means only a 
miner or surviving spouse entitled to benefits (see Sec. 725.202 and 
Sec. 725.212). An individual who is the beneficiary's child 
(Sec. 725.208) will be determined to be, or to have been, dependent on 
the beneficiary, if the child:
    (1) Is unmarried; and
    (2)(i) Is under 18 years of age; or
    (ii) Is under a disability as defined in section 223(d) of the 
Social Security Act, 42 U.S.C. 423(d); or
    (iii) Is 18 years of age or older and is a student.
    (b)(1) The term ``student'' means a ``full-time student'' as 
defined in section 202(d)(7) of the Social Security Act, 42 U.S.C. 
402(d)(7) (see Secs. 404.367 through 404.369 of this title), or an 
individual under 23 years of age who has not completed 4 years of 
education beyond the high school level and who is regularly pursuing a 
full-time course of study or training at an institution which is:
    (i) A school, college, or university operated or directly supported 
by the United States, or by a State or local government or political 
subdivision thereof; or
    (ii) A school, college, or university which has been accredited by 
a State or by a State-recognized or nationally-recognized accrediting 
agency or body; or
    (iii) A school, college, or university not so accredited but whose 
credits are accepted, on transfer, by at least three institutions which 
are so accredited; or
    (iv) A technical, trade, vocational, business, or professional 
school accredited or licensed by the Federal or a state government or 
any political subdivision thereof, providing courses of not less than 3 
months' duration that prepare the student for a livelihood in a trade, 
industry, vocation, or profession.
    (2) A student will be considered to be ``pursuing a full-time 
course of study or training at an institution'' if the student is 
enrolled in a noncorrespondence course of at least 13 weeks duration 
and is carrying a subject load which is considered full-time for day 
students under the institution's standards and practices. A student 
beginning or ending a full-time course of study or training in part of 
any month will be considered to

[[Page 55027]]

be pursuing such course for the entire month.
    (3) A child is considered not to have ceased to be a student:
    (i) During any interim between school years, if the interim does 
not exceed 4 months and the child shows to the satisfaction of the 
Office that he or she has a bona fide intention of continuing to pursue 
a full-time course of study or training; or
    (ii) During periods of reasonable duration in which, in the 
judgment of the Office, the child is prevented by factors beyond the 
child's control from pursuing his or her education.
    (4) A student whose 23rd birthday occurs during a semester or the 
enrollment period in which such student is pursuing a full-time course 
of study or training shall continue to be considered a student until 
the end of such period, unless eligibility is otherwise terminated.


Sec. 725.210  Duration of augmented benefits.

    Augmented benefits payable on behalf of a spouse or divorced 
spouse, or a child, shall begin with the first month in which the 
dependent satisfies the conditions of relationship and dependency set 
forth in this subpart. Augmentation of benefits on account of a 
dependent continues through the month before the month in which the 
dependent ceases to satisfy these conditions, except in the case of a 
child who qualifies as a dependent because such child is a student. In 
the latter case, benefits continue to be augmented through the month 
before the first month during no part of which such child qualifies as 
a student.


Sec. 725.211  Time of determination of relationship and dependency of 
spouse or child for purposes of augmentation of benefits.

    With respect to the spouse or child of a miner entitled to 
benefits, and with respect to the child of a surviving spouse entitled 
to benefits, the determination as to whether an individual purporting 
to be a spouse or child is related to or dependent upon such miner or 
surviving spouse shall be based on the facts and circumstances present 
in each case, at the appropriate time.

Conditions and Duration of Entitlement: Miner's Survivors


Sec. 725.212  Condition of entitlement; surviving spouse or surviving 
divorced spouse.

    (a) An individual who is the surviving spouse or surviving divorced 
spouse of a miner is eligible for benefits if such individual:
    (1) Is not married;
    (2) Was dependent on the miner at the pertinent time; and
    (3) The deceased miner either:
    (i) Was receiving benefits under section 415 or part C of title IV 
of the Act at the time of death as a result of a claim filed prior to 
January 1, 1982; or
    (ii) Is determined as a result of a claim filed prior to January 1, 
1982, to have been totally disabled due to pneumoconiosis at the time 
of death or to have died due to pneumoconiosis. A surviving spouse or 
surviving divorced spouse of a miner whose claim is filed on or after 
January 1, 1982, must establish that the deceased miner's death was due 
to pneumoconiosis in order to establish entitlement to benefits, except 
where entitlement is established under Sec. 718.306 of this subchapter 
on a claim filed prior to June 30, 1982.
    (b) If more than one spouse meets the conditions of entitlement 
prescribed in paragraph (a) of this section, then each spouse will be 
considered a beneficiary for purposes of section 412(a)(2) of the Act 
without regard to the existence of any other entitled spouse or 
spouses.


Sec. 725.213  Duration of entitlement; surviving spouse or surviving 
divorced spouse.

    (a) An individual is entitled to benefits as a surviving spouse, or 
as a surviving divorced spouse, for each month beginning with the first 
month in which all of the conditions of entitlement prescribed in 
Sec. 725.212 are satisfied.
    (b) The last month for which such individual is entitled to such 
benefits is the month before the month in which either of the following 
events first occurs:
    (1) The surviving spouse or surviving divorced spouse marries; or
    (2) The surviving spouse or surviving divorced spouse dies.
    (c) A surviving spouse or surviving divorced spouse whose 
entitlement to benefits has been terminated pursuant to 
Sec. 725.213(b)(1) may thereafter again become entitled to such 
benefits upon filing application for such reentitlement, beginning with 
the first month after the marriage ends and such individual meets the 
requirements of Sec. 725.212. The individual shall not be required to 
reestablish the miner's entitlement to benefits (Sec. 725.212(a)(3)(i)) 
or the miner's death due to pneumoconiosis (Sec. 725.212(a)(3)(ii)).


Sec. 725.214  Determination of relationship; surviving spouse.

    An individual shall be considered to be the surviving spouse of a 
miner if:
    (a) The courts of the State in which the miner was domiciled (see 
Sec. 725.231) at the time of his or her death would find that the 
individual and the miner were validly married; or
    (b) The courts of the State in which the miner was domiciled (see 
Sec. 725.231) at the time of the miner's death would find that the 
individual was the miner's surviving spouse; or
    (c) Under State law, such individual would have the right of the 
spouse to share in the miner's interstate personal property; or
    (d) Such individual went through a marriage ceremony with the miner 
resulting in a purported marriage between them and which but for a 
legal impediment (see Sec. 725.230) would have been a valid marriage, 
unless such individual entered into the purported marriage with 
knowledge that it was not a valid marriage, or if such individual and 
the miner were not living in the same household at the time of the 
miner's death.


Sec. 725.215  Determination of dependency; surviving spouse.

    An individual who is the miner's surviving spouse (see 
Sec. 725.214) shall be determined to have been dependent on the miner 
if, at the time of the miner's death:
    (a) The individual was living with the miner (see Sec. 725.232); or
    (b) The individual was dependent upon the miner for support or the 
miner has been ordered by a court to contribute to such individual's 
support (see Sec. 725.233); or
     (c) The individual was living apart from the miner because of the 
miner's desertion or other reasonable cause; or
    (d) The individual is the natural parent of the miner's son or 
daughter;
    (e) The individual had legally adopted the miner's son or daughter 
while the individual was married to the miner and while such son or 
daughter was under the age of 18; or
    (f) The individual was married to the miner at the time both of 
them legally adopted a child under the age of 18; or
    (g) (1) The individual was married to the miner for a period of not 
less than 9 months immediately before the day on which the miner died, 
unless the miner's death:
    (i) Is accidental (as defined in paragraph (g)(2) of this section), 
or
    (ii) Occurs in line of duty while the miner is a member of a 
uniformed service serving on active duty (as defined in Sec. 404.1019 
of this title), and the surviving spouse was married to the miner for a 
period of not less than 3 months immediately prior to the day on which 
such miner died.

[[Page 55028]]

    (2) For purposes of paragraph (g)(l)(i) of this section, the death 
of a miner is accidental if such individual received bodily injuries 
solely through violent, external, and accidental means, and as a direct 
result of the bodily injuries and independently of all other causes, 
dies not later than 3 months after the day on which such miner receives 
such bodily injuries. The term ``accident'' means an event that was 
unpremeditated and unforeseen from the standpoint of the deceased 
individual. To determine whether the death of an individual did, in 
fact, result from an accident the adjudication officer will consider 
all the circumstances surrounding the casualty. An intentional and 
voluntary suicide will not be considered to be death by accident; 
however, suicide by an individual who is so incompetent as to be 
incapable of acting intentionally and voluntarily will be considered to 
be a death by accident. In no event will the death of an individual 
resulting from violent and external causes be considered a suicide 
unless there is direct proof that the fatal injury was self-inflicted.
    (3) The provisions of this paragraph (g) shall not apply if the 
adjudication officer determines that at the time of the marriage 
involved, the miner would not reasonably have been expected to live for 
9 months.


Sec. 725.216  Determination of relationship; surviving divorced spouse.

    An individual will be considered to be the surviving divorced 
spouse of a deceased miner in a claim considered under this part or 
reviewed under part 727 of this subchapter (see Sec. 725.4(d)), if such 
individual's marriage to the miner had been terminated by a final 
divorce on or after the 10th anniversary of the marriage unless, if 
such individual was married to and divorced from the miner more than 
once, such individual was married to such miner in each calendar year 
of the period beginning 10 years immediately before the date on which 
any divorce became final and ending with the year in which the divorce 
became final.


Sec. 725.217  Determination of dependency; surviving divorced spouse.

    An individual who is the miner's surviving divorced spouse (see 
Sec. 725.216) shall be determined to have been dependent on the miner 
if, for the month before the month in which the miner died:
    (a) The individual was receiving at least one-half of his or her 
support from the miner (see Sec. 725.233(g)); or
    (b) The individual was receiving substantial contributions from the 
miner pursuant to a written agreement (see Sec. 725.233(c) and (f)); or
    (c) A court order required the miner to furnish substantial 
contributions to the individual's support (see Sec. 725.233(c) and 
(e)).


Sec. 725.218  Conditions of entitlement; child.

    (a) An individual is entitled to benefits where he or she meets the 
required standards of relationship and dependency under this subpart 
(see Sec. 725.220 and Sec. 725.221) and is the child of a deceased 
miner who:
    (1) Was receiving benefits under section 415 or part C of title IV 
of the Act as a result of a claim filed prior to January 1, 1982, or
    (2) Is determined as a result of a claim filed prior to January 1, 
1982, to have been totally disabled due to pneumoconiosis at the time 
of death, or to have died due to pneumoconiosis. A surviving dependent 
child of a miner whose claim is filed on or after January 1, 1982, must 
establish that the miner's death was due to pneumoconiosis in order to 
establish entitlement to benefits, except where entitlement is 
established under Sec. 718.306 of this subchapter on a claim filed 
prior to June 30, 1982.
    (b) A child is not entitled to benefits for any month for which a 
miner, or the surviving spouse or surviving divorced spouse of a miner, 
establishes entitlement to benefits.


Sec. 725.219  Duration of entitlement; child.

    (a) An individual is entitled to benefits as a child for each month 
beginning with the first month in which all of the conditions of 
entitlement prescribed in Sec. 725.218 are satisfied.
    (b) The last month for which such individual is entitled to such 
benefits is the month before the month in which any one of the 
following events first occurs:
    (1) The child dies;
    (2) The child marries;
    (3) The child attains age 18; and
    (i) Is not a student (as defined in Sec. 725.209(b)) during any 
part of the month in which the child attains age 18; and
    (ii) Is not under a disability (as defined in 
Sec. 725.209(a)(2)(ii)) at that time;
    (4) If the child's entitlement beyond age 18 is based on his or her 
status as a student, the earlier of:
    (i) The first month during no part of which the child is a student; 
or
    (ii) The month in which the child attains age 23 and is not under a 
disability (as defined in Sec. 725.209(a)(2)(ii)) at that time;
    (5) If the child's entitlement beyond age 18 is based on 
disability, the first month in no part of which such individual is 
under a disability.
    (c) A child whose entitlement to benefits terminated with the month 
before the month in which the child attained age 18, or later, may 
thereafter (provided such individual is not married) again become 
entitled to such benefits upon filing application for such 
reentitlement, beginning with the first month after termination of 
benefits in which such individual is a student and has not attained the 
age of 23.


Sec. 725.220  Determination of relationship; child.

    For purposes of determining whether an individual may qualify for 
benefits as the child of a deceased miner, the provisions of 
Sec. 725.208 shall be applicable. As used in this section, the term 
``beneficiary'' means only a surviving spouse entitled to benefits at 
the time of such surviving spouse's death (see Sec. 725.212), or a 
miner. For purposes of a survivor's claim, an individual will be 
considered to be a child of a beneficiary if:
    (a) The courts of the State in which such beneficiary is domiciled 
(see Sec. 725.231) would find, under the law they would apply in 
determining the devolution of the beneficiary's intestate personal 
property, that the individual is the beneficiary's child; or
    (b) Such individual is the legally adopted child of such 
beneficiary; or
    (c) Such individual is the stepchild of such beneficiary by reason 
of a valid marriage of such individual's parent or adopting parent to 
such beneficiary; or
    (d) Such individual does not bear the relationship of child to such 
beneficiary under paragraph (a), (b), or (c) of this section, but 
would, under State law, have the same right as a child to share in the 
beneficiary's intestate personal property; or
    (e) Such individual is the natural son or daughter of a beneficiary 
but does not bear the relationship of child to such beneficiary under 
paragraph (a), (b), or (c) of this section, and is not considered to be 
the child of the beneficiary under paragraph (d) of this section, such 
individual shall nevertheless be considered to be the child of such 
beneficiary if the beneficiary and the mother or father, as the case 
may be, of such individual went through a marriage ceremony resulting 
in a purported marriage between them which but for a legal impediment 
(see Sec. 725.230) would have been a valid marriage; or
    (f) Such individual is the natural son or daughter of a beneficiary 
but does not have the relationship of child to such beneficiary under 
paragraph (a), (b), or

[[Page 55029]]

(c) of this section, and is not considered to be the child of the 
beneficiary under paragraph (d) or (e) of this section, such individual 
shall nevertheless be considered to be the child of such beneficiary 
if:
    (1) Such beneficiary, prior to his or her entitlement to benefits, 
has acknowledged in writing that the individual is his or her son or 
daughter, or has been decreed by a court to be the father or mother of 
the individual, or has been ordered by a court to contribute to the 
support of the individual (see Sec. 725.233(a)) because the individual 
is a son or daughter; or
    (2) Such beneficiary is shown by satisfactory evidence to be the 
father or mother of the individual and was living with or contributing 
to the support of the individual at the time such beneficiary became 
entitled to benefits.


Sec. 725.221  Determination of dependency; child.

    For the purposes of determining whether a child was dependent upon 
a deceased miner, the provisions of Sec. 725.209 shall be applicable, 
except that for purposes of determining the eligibility of a child who 
is under a disability as defined in section 223(d) of the Social 
Security Act, such disability must have begun before the child attained 
age 22, or in the case of a student, before the child ceased to be a 
student.


Sec. 725.222  Conditions of entitlement; parent, brother, or sister.

    (a) An individual is eligible for benefits as a surviving parent, 
brother or sister if all of the following requirements are met:
    (1) The individual is the parent, brother, or sister of a deceased 
miner;
    (2) The individual was dependent on the miner at the pertinent 
time;
    (3) Proof of support is filed within 2 years after the miner's 
death, unless the time is extended for good cause (Sec. 725.226);
    (4) In the case of a brother or sister, such individual also:
    (i) Is under 18 years of age; or
    (ii) Is under a disability as defined in section 223(d) of the 
Social Security Act, 42 U.S.C. 423(d), which began before such 
individual attained age 22, or in the case of a student, before the 
student ceased to be a student; or
    (iii) Is a student (see Sec. 725.209(b)); or
    (iv) Is under a disability as defined in section 223(d) of the 
Social Security Act, 42 U.S.C. 423(d), at the time of the miner's 
death;
    (5) The deceased miner:
    (i) Was entitled to benefits under section 415 or part C of title 
IV of the Act as a result of a claim filed prior to January 1, 1982; or
    (ii) Is determined as a result of a claim filed prior to January 1, 
1982, to have been totally disabled due to pneumoconiosis at the time 
of death or to have died due to pneumoconiosis. A surviving dependent 
parent, brother or sister of a miner whose claim is filed on or after 
January 1, 1982, must establish that the miner's death was due to 
pneumoconiosis in order to establish entitlement to benefits, except 
where entitlement is established under Sec. 718.306 of this subchapter 
on a claim filed prior to June 30, 1982.
    (b)(1) A parent is not entitled to benefits if the deceased miner 
was survived by a spouse or child at the time of such miner's death.
    (2) A brother or sister is not entitled to benefits if the deceased 
miner was survived by a spouse, child, or parent at the time of such 
miner's death.


Sec. 725.223  Duration of entitlement; parent, brother, or sister.

    (a) A parent, sister, or brother is entitled to benefits beginning 
with the month all the conditions of entitlement described Sec. 725.222 
are met.
    (b) The last month for which such parent is entitled to benefits is 
the month in which the parent dies.
    (c) The last month for which such brother or sister is entitled to 
benefits is the month before the month in which any of the following 
events first occurs:
    (1) The individual dies;
    (2)(i) The individual marries or remarries; or
    (ii) If already married, the individual received support in any 
amount from his or her spouse;
    (3) The individual attains age 18; and
    (i) Is not a student (as defined in Sec. 725.209(b)) during any 
part of the month in which the individual attains age 18; and
    (ii) is not under a disability (as defined in 
Sec. 725.209(a)(2)(ii)) at that time;
    (4) If the individual's entitlement beyond age 18 is based on his 
or her status as a student, the earlier of:
    (i) The first month during no part of which the individual is a 
student; or
    (ii) The month in which the individual attains age 23 and is not 
under a disability (as defined in Sec. 725.209(a)(2)(ii)) at that time;
    (5) If the individual's entitlement beyond age 18 is based on 
disability, the first month in no part of which such individual is 
under a disability.


Sec. 725.224  Determination of relationship; parent, brother, or 
sister.

    (a) An individual will be considered to be the parent, brother, or 
sister of a miner if the courts of the State in which the miner was 
domiciled (see Sec. 225.231) at the time of death would find, under the 
law they would apply, that the individual is the miner's parent, 
brother, or sister.
    (b) Where, under State law, the individual is not the miner's 
parent, brother, or sister, but would, under State law, have the same 
status (i.e., right to share in the miner's intestate personal 
property) as a parent, brother, or sister, the individual will be 
considered to be the parent, brother, or sister as appropriate.


Sec. 725.225  Determination of dependency; parent, brother, or sister.

    An individual who is the miner's parent, brother, or sister will be 
determined to have been dependent on the miner if, during the 1-year 
period immediately prior to the miner's death:
    (a) The individual and the miner were living in the same household 
(see Sec. 725.232); and
    (b) The individual was totally dependent on the miner for support 
(see Sec. 725.233(h)).


Sec. 725.226  ``Good cause'' for delayed filing of proof of support.

    (a) What constitutes ``good cause.'' ``Good cause'' may be found 
for failure to file timely proof of support where the parent, brother, 
or sister establishes to the satisfaction of the Office that such 
failure to file was due to:
    (1) Circumstances beyond the individual's control, such as extended 
illness, mental, or physical incapacity, or communication difficulties; 
or
    (2) Incorrect or incomplete information furnished the individual by 
the Office; or
    (3) Efforts by the individual to secure supporting evidence without 
a realization that such evidence could be submitted after filing proof 
of support.
    (b) What does not constitute ``good cause.'' ``Good cause'' for 
failure to file timely proof of support (see Sec. 725.222(a)(3)) does 
not exist when there is evidence of record in the Office that the 
individual was informed that he or she should file within the 
prescribed period and he or she failed to do so deliberately or through 
negligence.


Sec. 725.227  Time of determination of relationship and dependency of 
survivors.

    The determination as to whether an individual purporting to be an 
entitled survivor of a miner or beneficiary was related to, or 
dependent upon, the miner is made after such individual files a claim 
for benefits as a survivor. Such determination is based on the facts 
and circumstances with respect to a reasonable period of time ending 
with

[[Page 55030]]

the miner's death. A prior determination that such individual was, or 
was not, a dependent for the purposes of augmenting the miner's 
benefits for a certain period, is not determinative of the issue of 
whether the individual is a dependent survivor of such miner.


Sec. 725.228  Effect of conviction of felonious and intentional 
homicide on entitlement to benefits.

    An individual who has been convicted of the felonious and 
intentional homicide of a miner or other beneficiary shall not be 
entitled to receive any benefits payable because of the death of such 
miner or other beneficiary, and such person shall be considered 
nonexistent in determining the entitlement to benefits of other 
individuals.

Terms Used in this Subpart


Sec. 725.229  Intestate personal property.

    References in this subpart to the ``same right to share in the 
intestate personal property'' of a deceased miner (or surviving spouse) 
refer to the right of an individual to share in such distribution in 
the individual's own right and not the right of representation.


Sec. 725.230  Legal impediment.

    For purposes of this subpart, ``legal impediment'' means an 
impediment resulting from the lack of dissolution of a previous 
marriage or otherwise arising out of such previous marriage or its 
dissolution or resulting from a defect in the procedure followed in 
connection with the purported marriage ceremony--for example, the 
solemnization of a marriage only through a religious ceremony in a 
country which requires a civil ceremony for a valid marriage.


Sec. 725.231  Domicile.

    (a) For purposes of this subpart, the term ``domicile'' means the 
place of an individual's true, fixed, and permanent home.
    (b) The domicile of a deceased miner or surviving spouse is 
determined as of the time of death.
    (c) If an individual was not domiciled in any State at the 
pertinent time, the law of the District of Columbia is applied.


Sec. 725.232  Member of the same household--``living with,'' ``living 
in the same household,'' and ``living in the miner's household,'' 
defined.

    (a) Defined. (1) The term ``member of the same household'' as used 
in section 402(a)(2) of the Act (with respect to a spouse); the term 
``living with'' as used in section 402(e) of the Act (with respect to a 
surviving spouse); and the term ``living in the same household'' as 
used in this subpart, means that a husband and wife were customarily 
living together as husband and wife in the same place.
    (2) The term ``living in the miner's household'' as used in section 
412(a)(5) of the Act (with respect to a parent, brother, or sister) 
means that the miner and such parent, brother, or sister were sharing 
the same residence.
    (b) Temporary absence. The temporary absence from the same 
residence of either the miner, or the miner's spouse, parent, brother, 
or sister (as the case may be), does not preclude a finding that one 
was ``living with'' the other, or that they were ``members of the same 
household.'' The absence of one such individual from the residence in 
which both had customarily lived shall, in the absence of evidence to 
the contrary, be considered temporary:
    (1) If such absence was due to service in the Armed Forces of the 
United States; or
    (2) If the period of absence from his or her residence did not 
exceed 6 months and the absence was due to business or employment 
reasons, or because of confinement in a penal institution or in a 
hospital, nursing home, or other curative institution; or
    (3) In any other case, if the evidence establishes that despite 
such absence they nevertheless reasonably expected to resume physically 
living together.
    (c) Relevant period of time. (1) The determination as to whether a 
surviving spouse had been ``living with'' the miner shall be based upon 
the facts and circumstances as of the time of the death of the miner.
    (2) The determination as to whether a spouse is a ``member of the 
same household'' as the miner shall be based upon the facts and 
circumstances with respect to the period or periods of time as to which 
the issue of membership in the same household is material.
    (3) The determination as to whether a parent, brother, or sister 
was ``living in the miner's household'' shall take account of the 1-
year period immediately prior to the miner's death.


Sec. 725.233  Support and contributions.

    (a) Support defined. The term ``support'' includes food, shelter, 
clothing, ordinary medical expenses, and other ordinary and customary 
items for the maintenance of the person supported.
    (b) Contributions defined. The term ``contributions'' refers to 
contributions actually provided by the contributor from such 
individual's property, or the use thereof, or by the use of such 
individual's own credit.
    (c) Regular contributions and substantial contributions defined. 
The terms ``regular contributions'' and ``substantial contributions'' 
mean contributions that are customary and sufficient to constitute a 
material factor in the cost of the individual's support.
    (d) Contributions and community property. When a spouse receives 
and uses for his or her support income from services or property, and 
such income, under applicable State law, is the community property of 
the wife and her husband, no part of such income is a ``contribution'' 
by one spouse to the other's support regardless of the legal interest 
of the donor. However, when a spouse receives and uses for support, 
income from the services and the property of the other spouse and, 
under applicable State law, such income is community property, all of 
such income is considered to be a contribution by the donor to the 
spouse's support.
    (e) Court order for support defined. References to a support order 
in this subpart means any court order, judgment, or decree of a court 
of competent jurisdiction which requires regular contributions that are 
a material factor in the cost of the individual's support and which is 
in effect at the applicable time. If such contributions are required by 
a court order, this condition is met whether or not the contributions 
were actually made.
    (f) Written agreement defined. The term ``written agreement'' in 
the phrase ``substantial contributions pursuant to a written 
agreement'', as used in this subpart means an agreement signed by the 
miner providing for substantial contributions by the miner for the 
individual's support. It must be in effect at the applicable time but 
it need not be legally enforceable.
    (g) One-half support defined. The term ``one-half support'' means 
that the miner made regular contributions, in cash or in kind, to the 
support of a divorced spouse at the specified time or for the specified 
period, and that the amount of such contributions equalled or exceeded 
one-half the total cost of such individual's support at such time or 
during such period.
    (h) Totally dependent for support defined. The term ``totally 
dependent for support'' as used in Sec. 725.225(b) means that the miner 
made regular contributions to the support of the miner's parents, 
brother, or sister, as the case may be, and that the amount of such 
contributions at least equalled the total cost of such individual's 
support.

[[Page 55031]]

Subpart C--Filing of Claims


Sec. 725.301  Who may file a claim.

    (a) Any person who believes he or she may be entitled to benefits 
under the Act may file a claim in accordance with this subpart.
    (b) A claimant who has attained the age of 18, is mentally 
competent and physically able, may file a claim on his or her own 
behalf.
    (c) If a claimant is unable to file a claim on his or her behalf 
because of a legal or physical impairment, the following rules shall 
apply:
    (1) A claimant between the ages of 16 and 18 years who is mentally 
competent and not under the legal custody or care of another person, or 
a committee or institution, may upon filing a statement to the effect, 
file a claim on his or her own behalf. In any other case where the 
claimant is under 18 years of age, only a person, or the manager or 
principal officer of an institution having legal custody or care of the 
claimant may file a claim on his or her behalf.
    (2) If a claimant over 18 years of age has a legally appointed 
guardian or committee, only the guardian or committee may file a claim 
on his or her behalf.
    (3) If a claimant over 18 years of age is mentally incompetent or 
physically unable to file a claim and is under the care of another 
person, or an institution, only the person, or the manager or principal 
officer of the institution responsible for the care of the claimant, 
may file a claim on his or her behalf.
    (4) For good cause shown, the Office may accept a claim executed by 
a person other than one described in paragraphs (c)(2) or (3) of this 
section.
    (d) Except as provided in Sec. 725.305, in order for a claim to be 
considered, the claimant must be alive at the time the claim is filed.


Sec. 725.302  Evidence of authority to file a claim on behalf of 
another.

    A person filing a claim on behalf of a claimant shall submit 
evidence of his or her authority to so act at the time of filing or at 
a reasonable time thereafter in accordance with the following:
    (a) A legally appointed guardian or committee shall provide the 
Office with certification of appointment by a proper official of the 
court.
    (b) Any other person shall provide a statement describing his or 
her relationship to the claimant, the extent to which he or she has 
care of the claimant, or his or her position as an officer of the 
institution of which the claimant is an inmate. The Office may, at any 
time, require additional evidence to establish the authority of any 
such person.


Sec. 725.303  Date and place of filing of claims.

    (a)(1) Claims for benefits shall be delivered, mailed to, or 
presented at, any of the various district offices of the Social 
Security Administration, or any of the various offices of the 
Department of Labor authorized to accept claims, or, in the case of a 
claim filed by or on behalf of a claimant residing outside the United 
States, mailed or presented to any office maintained by the Foreign 
Service of the United States. A claim shall be considered filed on the 
day it is received by the office in which it is first filed.
    (2) A claim submitted to a Foreign Service Office or any other 
agency or subdivision of the U.S. Government shall be forwarded to the 
Office and considered filed as of the date it was received at the 
Foreign Service Office or other governmental agency or unit.
    (b) A claim submitted by mail shall be considered filed as of the 
date of delivery unless a loss or impairment of benefit rights would 
result, in which case a claim shall be considered filed as of the date 
of its postmark. In the absence of a legible postmark, other evidence 
may be used to establish the mailing date.


Sec. 725.304  Forms and initial processing.

    (a) Claims shall be filed on forms prescribed and approved by the 
Office. The district office at which the claim is filed will assist 
claimants in completing their forms.
    (b) If the place at which a claim is filed is an office of the 
Social Security Administration, such office shall forward the completed 
claim form to an office of the DCMWC, which is authorized to process 
the claim.


Sec. 725.305  When a written statement is considered a claim.

    (a) The filing of a statement signed by an individual indicating an 
intention to claim benefits shall be considered to be the filing of a 
claim for the purposes of this part under the following circumstances:
    (1) The claimant or a proper person on his or her behalf (see 
Sec. 725.301) executes and files a prescribed claim form with the 
Office during the claimant's lifetime within the period specified in 
paragraph (b) of this section.
    (2) Where the claimant dies within the period specified in 
paragraph (b) of this section without filing a prescribed claim form, 
and a person acting on behalf of the deceased claimant's estate 
executes and files a prescribed claim form within the period specified 
in paragraph (c) of this section.
    (b) Upon receipt of a written statement indicating an intention to 
claim benefits, the Office shall notify the signer in writing that to 
be considered the claim must be executed by the claimant or a proper 
party on his or her behalf on the prescribed form and filed with the 
Office within six months from the date of mailing of the notice.
    (c) If before the notice specified in paragraph (b) of this section 
is sent, or within six months after such notice is sent, the claimant 
dies without having executed and filed a prescribed form, or without 
having had one executed and filed in his or her behalf, the Office 
shall upon receipt of notice of the claimant's death advise his or her 
estate, or those living at his or her last known address, in writing 
that for the claim to be considered, a prescribed claim form must be 
executed and filed by a person authorized to do so on behalf of the 
claimant's estate within six months of the date of the later notice.
    (d) Claims based upon written statements indicating an intention to 
claim benefits not perfected in accordance with this section shall not 
be processed.


Sec. 725.306  Withdrawal of a claim.

    (a) A claimant or an individual authorized to execute a claim on a 
claimant's behalf or on behalf of claimant's estate under Sec. 725.305, 
may withdraw a previously filed claim provided that:
    (1) He or she files a written request with the appropriate 
adjudication officer indicating the reasons for seeking withdrawal of 
the claim;
    (2) The appropriate adjudication officer approves the request for 
withdrawal on the grounds that it is in the best interests of the 
claimant or his or her estate, and;
    (3) Any payments made to the claimant in accordance with 
Sec. 725.522 are reimbursed.
    (b) When a claim has been withdrawn under paragraph (a) of this 
section, the claim will be considered not to have been filed.


Sec. 725.307  Cancellation of a request for withdrawal.

    At any time prior to approval, a request for withdrawal may be 
canceled by a written request of the claimant or a person authorized to 
act on the claimant's behalf or on behalf of the claimant's estate.


Sec. 725.308  Time limits for filing claims.

    (a) A claim for benefits filed under this part by, or on behalf of, 
a miner shall be filed within three years after a medical determination 
of total disability

[[Page 55032]]

due to pneumoconiosis which has been communicated to the miner or a 
person responsible for the care of the miner, or within three years 
after the date of enactment of the Black Lung Benefits Reform Act of 
1977, whichever is later. There is no time limit on the filing of a 
claim by the survivor of a miner.
    (b) A miner who is receiving benefits under part B of title IV of 
the Act and who is notified by HEW of the right to seek medical 
benefits may file a claim for medical benefits under part C of title IV 
of the Act and this part. The Secretary of Health, Education, and 
Welfare is required to notify each miner receiving benefits under part 
B of this right. Notwithstanding the provisions of paragraph (a) of 
this section, a miner notified of his or her rights under this 
paragraph may file a claim under this part on or before December 31, 
1980. Any claim filed after that date shall be untimely unless the time 
for filing has been enlarged for good cause shown.
    (c) There shall be a rebuttable presumption that every claim for 
benefits is timely filed. However, except as provided in paragraph (b) 
of this section, the time limits in this section are mandatory and may 
not be waived or tolled except upon a showing of extraordinary 
circumstances.


Sec. 725.309  Additional claims; effect of a prior denial of benefits.

    (a) A claimant whose claim for benefits was previously approved 
under part B of title IV of the Act may file a claim for benefits under 
this part as provided in Secs. 725.308(b) and 725.702.
    (b) If a claimant files a claim under this part while another claim 
filed by the claimant under this part is still pending, the later claim 
shall be merged with the earlier claim for all purposes. For purposes 
of this section, a claim shall be considered pending if it has not yet 
been finally denied.
    (c) If a claimant files a claim under this part within one year 
after the effective date of a final order denying a claim previously 
filed by the claimant under this part (see Sec. 725.502(a)(2)), the 
later claim shall be considered a request for modification of the prior 
denial and shall be processed and adjudicated under Sec. 725.310.
    (d) If a claimant files a claim under this part more than one year 
after the effective date of a final order denying a claim previously 
filed by the claimant under this part (see Sec. 725.502(a)(2)), the 
later claim shall be considered a subsequent claim for benefits. A 
subsequent claim shall be processed and adjudicated in accordance with 
the provisions of subparts E and F of this part, except that the claim 
shall be denied unless the claimant demonstrates that one of the 
applicable conditions of entitlement (see Secs. 725.202(d) (miner), 
725.212 (spouse), 725.218 (child), and 725.222 (parent, brother, or 
sister)) has changed since the date upon which the order denying the 
prior claim became final. The applicability of this paragraph may be 
waived by the operator or fund, as appropriate. The following 
additional rules shall apply to the adjudication of a subsequent claim:
    (1) Any evidence submitted in connection with any prior claim shall 
be made a part of the record in the subsequent claim, provided that it 
was not excluded in the adjudication of the prior claim.
    (2) For purposes of this section, the applicable conditions of 
entitlement shall be limited to those conditions upon which the prior 
denial was based. For example, if the claim was denied solely on the 
basis that the individual was not a miner, the subsequent claim must be 
denied unless the individual worked as a miner following the prior 
denial. Similarly, if the claim was denied because the miner did not 
meet one or more of the eligibility criteria contained in part 718 of 
this subchapter, the subsequent claim must be denied unless the miner 
meets at least one of the criteria that he or she did not meet 
previously.
    (3) If the applicable condition(s) of entitlement relate to the 
miner's physical condition, the subsequent claim may be approved only 
if new evidence submitted in connection with the subsequent claim 
establishes at least one applicable condition of entitlement. A 
subsequent claim filed by a surviving spouse, child, parent, brother, 
or sister shall be denied unless the applicable conditions of 
entitlement in such claim include at least one condition unrelated to 
the miner's physical condition at the time of his death.
    (4) If the claimant demonstrates a change in one of the applicable 
conditions of entitlement, no findings made in connection with the 
prior claim, except those based on a party's failure to contest an 
issue (see Sec. 725.463), shall be binding on any party in the 
adjudication of the subsequent claim. However, any stipulation made by 
any party in connection with the prior claim shall be binding on that 
party in the adjudication of the subsequent claim.
    (5) In any case in which a subsequent claim is awarded, no benefits 
may be paid for any period prior to the date upon which the order 
denying the prior claim became final.
    (e) Notwithstanding any other provision of this part or part 727 of 
this subchapter (see Sec. 725.4(d)), a person may exercise the right of 
review provided in paragraph (c) of Sec. 727.103 at the same time such 
person is pursuing an appeal of a previously denied part B claim under 
the law as it existed prior to March 1, 1978. If the part B claim is 
ultimately approved as a result of the appeal, the claimant must 
immediately notify the Secretary of Labor and, where appropriate, the 
coal mine operator, and all duplicate payments made under part C shall 
be considered an overpayment and arrangements shall be made to insure 
the repayment of such overpayments to the fund or an operator, as 
appropriate.
    (f) In any case involving more than one claim filed by the same 
claimant, under no circumstances are duplicate benefits payable for 
concurrent periods of eligibility. Any duplicate benefits paid shall be 
subject to collection or offset under subpart H of this part.


Sec. 725.310  Modification of awards and denials.

    (a) Upon his or her own initiative, or upon the request of any 
party on grounds of a change in conditions or because of a mistake in a 
determination of fact, the district director may, at any time before 
one year from the date of the last payment of benefits, or at any time 
before one year after the denial of a claim, reconsider the terms of an 
award or denial of benefits.
    (b) Modification proceedings shall be conducted in accordance with 
the provisions of this part as appropriate, except that the claimant 
and the operator, or group of operators or the fund, as appropriate, 
shall each be entitled to submit no more than one additional chest X-
ray interpretation, one additional pulmonary function test, one 
additional arterial blood gas study, and one additional medical report 
in support of its affirmative case along with such rebuttal evidence 
and additional statements as are authorized by paragraphs (a)(2)(ii) 
and (a)(3)(ii) of Sec. 725.414. Modification proceedings shall not be 
initiated before an administrative law judge or the Benefits Review 
Board.
    (c) At the conclusion of modification proceedings before the 
district director, the district director may issue a proposed decision 
and order (Sec. 725.418) or, if appropriate, deny the claim by reason 
of abandonment (Sec. 725.409). In any case in which the district 
director has initiated modification proceedings on his own initiative 
to alter the terms of an award or denial of benefits issued by an 
administrative law judge, the

[[Page 55033]]

district director shall, at the conclusion of modification proceedings, 
forward the claim for a hearing (Sec. 725.421). In any case forwarded 
for a hearing, the administrative law judge assigned to hear such case 
shall consider whether any additional evidence submitted by the parties 
demonstrates a change in condition and, regardless of whether the 
parties have submitted new evidence, whether the evidence of record 
demonstrates a mistake in a determination of fact.
    (d) An order issued following the conclusion of modification 
proceedings may terminate, continue, reinstate, increase or decrease 
benefit payments or award benefits. Such order shall not affect any 
benefits previously paid, except that an order increasing the amount of 
benefits payable based on a finding of a mistake in a determination of 
fact may be made effective on the date from which benefits were 
determined payable by the terms of an earlier award. In the case of an 
award which is decreased, no payment made in excess of the decreased 
rate prior to the date upon which the party requested reconsideration 
under paragraph (a) of this section shall be subject to collection or 
offset under subpart H of this part, provided the claimant is without 
fault as defined by Sec. 725.543. In the case of an award which is 
decreased following the initiation of modification by the district 
director, no payment made in excess of the decreased rate prior to the 
date upon which the district director initiated modification 
proceedings under paragraph (a) shall be subject to collection or 
offset under subpart H of this part, provided the claimant is without 
fault as defined by Sec. 725.543. In the case of an award which has 
become final and is thereafter terminated, no payment made prior to the 
date upon which the party requested reconsideration under paragraph (a) 
shall be subject to collection or offset under subpart H of this part. 
In the case of an award which has become final and is thereafter 
terminated following the initiation of modification by the district 
director, no payment made prior to the date upon which the district 
director initiated modification proceedings under paragraph (a) shall 
be subject to collection or offset under subpart H of this part.


Sec. 725.311  Communications with respect to claims; time computations.

    (a) Unless otherwise specified by this part, all requests, 
responses, notices, decisions, orders, or other communications required 
or permitted by this part shall be in writing.
    (b) If required by this part, any document, brief, or other 
statement submitted in connection with the adjudication of a claim 
under this part shall be sent to each party to the claim by the 
submitting party. If proof of service is required with respect to any 
communication, such proof of service shall be submitted to the 
appropriate adjudication officer and filed as part of the claim record.
    (c) In computing any period of time described in this part, by any 
applicable statute, or by the order of any adjudication officer, the 
day of the act or event from which the designated period of time begins 
to run shall not be included. The last day of the period shall be 
included unless it is a Saturday, Sunday, or legal holiday, in which 
event the period extends until the next day which is not a Saturday, 
Sunday, or legal holiday. ``Legal holiday'' includes New Year's Day, 
Birthday of Martin Luther King, Jr., Washington's Birthday, Memorial 
Day, Independence Day, Labor Day, Columbus Day, Veterans Day, 
Thanksgiving Day, Christmas Day and any other day appointed as a 
holiday by the President or the Congress of the United States.
    (d) In any case in which a provision of this part requires a 
document to be sent to a person or party by certified mail, and the 
document is not sent by certified mail, but the person or party 
actually received the document, the document shall be deemed to have 
been sent in compliance with the provisions of this part. In such a 
case, any time period which commences upon the service of the document 
shall commence on the date the document was received.

Subpart D--Adjudication Officers; Parties and Representatives


Sec. 725.350  Who are the adjudication officers.

    (a) General. The persons authorized by the Secretary of Labor to 
accept evidence and decide claims on the basis of such evidence are 
called ``adjudication officers.'' This section describes the status of 
black lung claims adjudication officers.
    (b) District Director. The district director is that official of 
the DCMWC or his designee who is authorized to perform functions with 
respect to the development, processing, and adjudication of claims in 
accordance with this part.
    (c) Administrative law judge. An administrative law judge is that 
official appointed pursuant to 5 U.S.C. 3105 (or Public Law 94-504) who 
is qualified to preside at hearings under 5 U.S.C. 557 and is empowered 
by the Secretary to conduct formal hearings with respect to, and 
adjudicate, claims in accordance with this part. A person appointed 
under Public Law 94-504 shall not be considered an administrative law 
judge for purposes of this part for any period after March 1, 1979.


Sec. 725.351  Powers of adjudication officers.

    (a) District Director. The district director is authorized to:
    (1) Make determinations with respect to claims as is provided in 
this part;
    (2) Conduct conferences and informal discovery proceedings as 
provided in this part;
    (3) Compel the production of documents by the issuance of a 
subpoena;
    (4) Prepare documents for the signature of parties;
    (5) Issue appropriate orders as provided in this part; and
    (6) Do all other things necessary to enable him or her to discharge 
the duties of the office.
    (b) Administrative Law Judge. An administrative law judge is 
authorized to:
    (1) Conduct formal hearings in accordance with the provisions of 
this part;
    (2) Administer oaths and examine witnesses;
    (3) Compel the production of documents and appearance of witnesses 
by the issuance of subpoenas;
    (4) Issue decisions and orders with respect to claims as provided 
in this part; and
    (5) Do all other things necessary to enable him or her to discharge 
the duties of the office.
    (c) If any person in proceedings before an adjudication officer 
disobeys or resists any lawful order or process, or misbehaves during a 
hearing or so near the place thereof as to obstruct the same, or 
neglects to produce, after having been ordered to do so, any pertinent 
book, paper or document, or refuses to appear after having been 
subpoenaed, or upon appearing refuses to take the oath as a witness, or 
after having taken the oath refuses to be examined according to law, 
the district director, or the administrative law judge responsible for 
the adjudication of the claim, shall certify the facts to the Federal 
district court having jurisdiction in the place in which he or she is 
sitting (or to the U.S. District Court for the District of Columbia if 
he or she is sitting in the District) which shall thereupon in a 
summary manner hear the evidence as to the acts complained of, and, if 
the evidence so warrants, punish such person in the same manner and to 
the

[[Page 55034]]

same extent as for a contempt committed before the court, or commit 
such person upon the same condition as if the doing of the forbidden 
act had occurred with reference to the process or in the presence of 
the court.


Sec. 725.352  Disqualification of adjudication officer.

    (a) No adjudication officer shall conduct any proceedings in a 
claim in which he or she is prejudiced or partial, or where he or she 
has any interest in the matter pending for decision. A decision to 
withdraw from the consideration of a claim shall be within the 
discretion of the adjudication officer. If that adjudication officer 
withdraws, another officer shall be designated by the Director or the 
Chief Administrative Law Judge, as the case may be, to complete the 
adjudication of the claim.
    (b) No adjudication officer shall be permitted to appear or act as 
a representative of a party under this part while such individual is 
employed as an adjudication officer. No adjudication officer shall be 
permitted at any time to appear or act as a representative in 
connection with any case or claim in which he or she was personally 
involved. No fee or reimbursement shall be awarded under this part to 
an individual who acts in violation of this paragraph.
    (c) No adjudication officer shall act in any claim involving a 
party which employed such adjudication officer within one year before 
the adjudication of such claim.
    (d) Notwithstanding paragraph (a) of this section, no adjudication 
officer shall be permitted to act in any claim involving a party who is 
related to the adjudication officer by consanguinity or affinity within 
the third degree as determined by the law of the place where such party 
is domiciled. Any action taken by an adjudication officer in knowing 
violation of this paragraph shall be void.


Sec. 725.360  Parties to proceedings.

    (a) Except as provided in Sec. 725.361, no person other than the 
Secretary of Labor and authorized personnel of the Department of Labor 
shall participate at any stage in the adjudication of a claim for 
benefits under this part, unless such person is determined by the 
appropriate adjudication officer to qualify under the provisions of 
this section as a party to the claim. The following persons shall be 
parties:
    (1) The claimant;
    (2) A person other than a claimant, authorized to execute a claim 
on such claimant's behalf under Sec. 725.301;
    (3) Any coal mine operator notified under Sec. 725.407 of its 
possible liability for the claim;
    (4) Any insurance carrier of such operator; and
    (5) The Director in all proceedings relating to a claim for 
benefits under this part.
    (b) A widow, child, parent, brother, or sister, or the 
representative of a decedent's estate, who makes a showing in writing 
that his or her rights with respect to benefits may be prejudiced by a 
decision of an adjudication officer, may be made a party.
    (c) Any coal mine operator or prior operator or insurance carrier 
which has not been notified under Sec. 725.407 and which makes a 
showing in writing that its rights may be prejudiced by a decision of 
an adjudication officer may be made a party.
    (d) Any other individual may be made a party if that individual's 
rights with respect to benefits may be prejudiced by a decision to be 
made.


Sec. 725.361  Party amicus curiae.

    At the discretion of the Chief Administrative Law Judge or the 
administrative law judge assigned to the case, a person or entity which 
is not a party may be allowed to participate amicus curiae in a formal 
hearing only as to an issue of law. A person may participate amicus 
curiae in a formal hearing upon written request submitted with 
supporting arguments prior to the hearing. If the request is granted, 
the administrative law judge hearing the case will inform the party of 
the extent to which participation will be permitted. The request may, 
however, be denied summarily and without explanation.


Sec. 725.362  Representation of parties.

    (a) Except for the Secretary of Labor, whose interests shall be 
represented by the Solicitor of Labor or his or her designee, each of 
the parties may appoint an individual to represent his or her interest 
in any proceeding for determination of a claim under this part. Such 
appointment shall be made in writing or on the record at the hearing. 
An attorney qualified in accordance with Sec. 725.363(a) shall file a 
written declaration that he or she is authorized to represent a party, 
or declare his or her representation on the record at a formal hearing. 
Any other person (see Sec. 725.363(b)) shall file a written notice of 
appointment signed by the party or his or her legal guardian, or enter 
his or her appearance on the record at a formal hearing if the party he 
or she seeks to represent is present and consents to the 
representation. Any written declaration or notice required by this 
section shall include the OWCP number assigned by the Office and shall 
be sent to the Office or, for representation at a formal hearing, to 
the Chief Administrative Law Judge. In any case, such representative 
must be qualified under Sec. 725.363. No authorization for 
representation or agreement between a claimant and representative as to 
the amount of a fee, filed with the Social Security Administration in 
connection with a claim under part B of title IV of the Act, shall be 
valid under this part. A claimant who has previously authorized a 
person to represent him or her in connection with a claim originally 
filed under part B of title IV may renew such authorization by filing a 
statement to such effect with the Office or appropriate adjudication 
officer.
    (b) Any party may waive his or her right to be represented in the 
adjudication of a claim. If an adjudication officer determines, after 
an appropriate inquiry has been made, that a claimant who has been 
informed of his or her right to representation does not wish to obtain 
the services of a representative, such adjudication officer shall 
proceed to consider the claim in accordance with this part, unless it 
is apparent that the claimant is, for any reason, unable to continue 
without the help of a representative. However, it shall not be 
necessary for an adjudication officer to inquire as to the ability of a 
claimant to proceed without representation in any adjudication taking 
place without a hearing. The failure of a claimant to obtain 
representation in an adjudication taking place without a hearing shall 
be considered a waiver of the claimant's right to representation. 
However, at any time during the processing or adjudication of a claim, 
any claimant may revoke such waiver and obtain a representative.


Sec. 725.363  Qualification of representative.

    (a) Attorney. Any attorney in good standing who is admitted to 
practice before a court of a State, territory, district, or insular 
possession, or before the Supreme Court of the United States or other 
Federal court and is not, pursuant to any provision of law, prohibited 
from acting as a representative, may be appointed as a representative.
    (b) Other person. With the approval of the adjudication officer, 
any other person may be appointed as a representative so long as that 
person is not, pursuant to any provision of law, prohibited from acting 
as a representative.

[[Page 55035]]

Sec. 725.364  Authority of representative.

    A representative, appointed and qualified as provided in 
Secs. 725.362 and 725.363, may make or give on behalf of the party he 
or she represents, any request or notice relative to any proceeding 
before an adjudication officer, including formal hearing and review, 
except that such representative may not execute a claim for benefits, 
unless he or she is a person designated in Sec. 725.301 as authorized 
to execute a claim. A representative shall be entitled to present or 
elicit evidence and make allegations as to facts and law in any 
proceeding affecting the party represented and to obtain information 
with respect to the claim of such party to the same extent as such 
party. Notice given to any party of any administrative action, 
determination, or decision, or request to any party for the production 
of evidence shall be sent to the representative of such party and such 
notice or request shall have the same force and effect as if it had 
been sent to the party represented.


Sec. 725.365  Approval of representative's fees; lien against benefits.

    No fee charged for representation services rendered to a claimant 
with respect to any claim under this part shall be valid unless 
approved under this subpart. No contract or prior agreement for a fee 
shall be valid. In cases where the obligation to pay the attorney's fee 
is upon the claimant, the amount of the fee awarded may be made a lien 
upon the benefits due under an award and the adjudication officer shall 
fix, in the award approving the fee, such lien and the manner of 
payment of the fee. Any representative who is not an attorney may be 
awarded a fee for services under this subpart, except that no lien may 
be imposed with respect to such representative's fee.


Sec. 725.366  Fees for representatives.

    (a) A representative seeking a fee for services performed on behalf 
of a claimant shall make application therefor to the district director, 
administrative law judge, or appropriate appellate tribunal, as the 
case may be, before whom the services were performed. The application 
shall be filed and served upon the claimant and all other parties 
within the time limits allowed by the district director, administrative 
law judge, or appropriate appellate tribunal. The application shall be 
supported by a complete statement of the extent and character of the 
necessary work done, and shall indicate the professional status (e.g., 
attorney, paralegal, law clerk, lay representative or clerical) of the 
person performing such work, and the customary billing rate for each 
such person. The application shall also include a listing of reasonable 
unreimbursed expenses, including those for travel, incurred by the 
representative or an employee of a representative in establishing the 
claimant's case. Any fee requested under this paragraph shall also 
contain a description of any fee requested, charged, or received for 
services rendered to the claimant before any State or Federal court or 
agency in connection with a related matter.
    (b) Any fee approved under paragraph (a) of this section shall be 
reasonably commensurate with the necessary work done and shall take 
into account the quality of the representation, the qualifications of 
the representative, the complexity of the legal issues involved, the 
level of proceedings to which the claim was raised, the level at which 
the representative entered the proceedings, and any other information 
which may be relevant to the amount of fee requested. No fee approved 
shall include payment for time spent in preparation of a fee 
application. No fee shall be approved for work done on claims filed 
between December 30, 1969, and June 30, 1973, under part B of title IV 
of the Act, except for services rendered on behalf of the claimant in 
regard to the review of the claim under section 435 of the Act and part 
727 of this subchapter (see Sec. 725.4(d)).
    (c) In awarding a fee, the appropriate adjudication officer shall 
consider, and shall add to the fee, the amount of reasonable and 
unreimbursed expenses incurred in establishing the claimant's case. 
Reimbursement for travel expenses incurred by an attorney shall be 
determined in accordance with the provisions of Sec. 725.459(a). No 
reimbursement shall be permitted for expenses incurred in obtaining 
medical or other evidence which has previously been submitted to the 
Office in connection with the claim.
    (d) Upon receipt of a request for approval of a fee, such request 
shall be reviewed and evaluated by the appropriate adjudication officer 
and a fee award issued. Any party may request reconsideration of a fee 
awarded by the adjudication officer. A revised or modified fee award 
may then be issued, if appropriate.
    (e) Each request for reconsideration or review of a fee award shall 
be in writing and shall contain supporting statements or information 
pertinent to any increase or decrease requested. If a fee awarded by a 
district director is disputed, such award shall be appealable directly 
to the Benefits Review Board. In such a fee dispute case, the record 
before the Board shall consist of the order of the district director 
awarding or denying the fee, the application for a fee, any written 
statement in opposition to the fee and the documentary evidence 
contained in the file which verifies or refutes any item claimed in the 
fee application.


Sec. 725.367  Payment of a claimant's attorney's fee by responsible 
operator or fund.

    (a) An attorney who represents a claimant in the successful 
prosecution of a claim for benefits may be entitled to collect a 
reasonable attorney's fee from the responsible operator that is 
ultimately found liable for the payment of benefits, or, in a case in 
which there is no operator who is liable for the payment of benefits, 
from the fund. Generally, the operator or fund liable for the payment 
of benefits shall be liable for the payment of the claimant's 
attorney's fees where the operator or fund, as appropriate, took 
action, or acquiesced in action, that created an adversarial 
relationship between itself and the claimant. The fees payable under 
this section shall include fees for reasonable and necessary services 
performed prior to the creation of the adversarial relationship. 
Circumstances in which a successful attorney's fees shall be payable by 
the responsible operator or the fund include, but are not limited to, 
the following:
    (1) The responsible operator initially found to be liable for the 
payment of benefits by the district director (see Sec. 725.410(a)) 
contests the claimant's eligibility for benefits, either by filing a 
response pursuant to Sec. 725.411(b)(1), or, in a case in which the 
district director issues an initial finding that the claimant is not 
eligible for benefits, by failing to file a response. The operator that 
is ultimately determined to be liable for benefits shall be liable for 
an attorney's fee with respect to all reasonable services performed by 
the claimant's attorney;
    (2) There is no operator that may be held liable for the payment of 
benefits, and the district director issues an initial finding that the 
claimant is not eligible for benefits. The fund shall be liable for an 
attorney's fee with respect to all reasonable services performed by the 
claimant's attorney;
    (3) The claimant submits a bill for medical treatment, and the 
party liable for the payment of benefits declines to pay the bill on 
the grounds that the treatment is unreasonable, or is for a condition 
that is not compensable. The responsible operator or fund, as 
appropriate, shall be liable for an attorney's fee with respect to all 
reasonable services performed by the claimant's attorney;

[[Page 55036]]

    (4) A beneficiary seeks an increase in the amount of benefits 
payable, and the responsible operator or fund issues a notice of 
controversion contesting the claimant's right to that increase. If the 
beneficiary is successful in securing an increase in the amount of 
benefits payable, the operator or fund shall be liable for an 
attorney's fee with respect to all reasonable services performed by the 
beneficiary's attorney;
    (5) The responsible operator or fund seeks a decrease in the amount 
of benefits payable. If the beneficiary is successful in resisting the 
request for a decrease in the amount of benefits payable, the operator 
or fund shall be liable for an attorney's fee with respect to all 
reasonable services performed by the beneficiary's attorney. A request 
for information clarifying the amount of benefits payable shall not be 
considered a request to decrease that amount.
    (b) Any fee awarded under this section shall be in addition to the 
award of benefits, and shall be awarded, in an order, by the district 
director, administrative law judge, Board or court, before whom the 
work was performed. The operator or fund shall pay such fee promptly 
and directly to the claimant's attorney in a lump sum after the award 
of benefits becomes final.
    (c) Section 205(a) of the Black Lung Benefits Amendments of 1981, 
Public Law 97-119, amended section 422 of the Act and relieved 
operators and carriers from liability for the payment of benefits on 
certain claims. Payment of benefits on those claims was made the 
responsibility of the fund. The claims subject to this transfer of 
liability are described in Sec. 725.496. On claims subject to the 
transfer of liability described in this paragraph the fund will pay all 
fees and costs which have been or will be awarded to claimant's 
attorneys which were or would have become the liability of an operator 
or carrier but for the enactment of the 1981 Amendments and which have 
not already been paid by such operator or carrier. Section 9501(d)(7) 
of the Internal Revenue Code (26 U.S.C.), which was also enacted as a 
part of the 1981 Amendments to the Act, expressly prohibits the fund 
from reimbursing an operator or carrier for any attorney fees or costs 
which it has paid on cases subject to the transfer of liability 
provisions.

Subpart E--Adjudication of Claims by the District Director


Sec. 725.401  Claims development--general.

    After a claim has been received by the district director, the 
district director shall take such action as is necessary to develop, 
process, and make determinations with respect to the claim as provided 
in this subpart.


Sec. 725.402  Approved State workers' compensation law.

    If a district director determines that any claim filed under this 
part is one subject to adjudication under a workers' compensation law 
approved under part 722 of this subchapter, he or she shall advise the 
claimant of this determination and of the Act's requirement that the 
claim must be filed under the applicable State workers' compensation 
law. The district director shall then prepare a proposed decision and 
order dismissing the claim for lack of jurisdiction pursuant to 
Sec. 725.418 and proceed as appropriate.


Sec. 725.403  [Reserved]


Sec. 725.404  Development of evidence--general.

    (a) Employment history. Each claimant shall furnish the district 
director with a complete and detailed history of the coal miner's 
employment and, upon request, supporting documentation.
    (b) Matters of record. Where it is necessary to obtain proof of 
age, marriage or termination of marriage, death, family relationship, 
dependency (see subpart B of this part), or any other fact which may be 
proven as a matter of public record, the claimant shall furnish such 
proof to the district director upon request.
    (c) Documentary evidence. If a claimant is required to submit 
documents to the district director, the claimant shall submit either 
the original, a certified copy or a clear readable copy thereof. The 
district director or administrative law judge may require the 
submission of an original document or certified copy thereof, if 
necessary.
    (d) Submission of insufficient evidence. In the event a claimant 
submits insufficient evidence regarding any matter, the district 
director shall inform the claimant of what further evidence is 
necessary and request that such evidence be submitted within a 
specified reasonable time which may, upon request, be extended for good 
cause.


Sec. 725.405  Development of medical evidence; scheduling of medical 
examinations and tests.

    (a) Upon receipt of a claim, the district director shall ascertain 
whether the claim was filed by or on account of a miner as defined in 
Sec. 725.202, and in the case of a claim filed on account of a deceased 
miner, whether the claim was filed by an eligible survivor of such 
miner as defined in subpart B of this part.
    (b) In the case of a claim filed by or on behalf of a miner, the 
district director shall, where necessary, schedule the miner for a 
medical examination and testing under Sec. 725.406.
    (c) In the case of a claim filed by or on behalf of a survivor of a 
miner, the district director shall obtain whatever medical evidence is 
necessary and available for the development and evaluation of the 
claim.
    (d) The district director shall, where appropriate, collect other 
evidence necessary to establish:
    (1) The nature and duration of the miner's employment; and
    (2) All other matters relevant to the determination of the claim.
    (e) If at any time during the processing of the claim by the 
district director, the evidence establishes that the claimant is not 
entitled to benefits under the Act, the district director may terminate 
evidentiary development of the claim and proceed as appropriate.


Sec. 725.406  Medical examinations and tests.

    (a) The Act requires the Department to provide each miner who 
applies for benefits with the opportunity to undergo a complete 
pulmonary evaluation at no expense to the miner. A complete pulmonary 
evaluation includes a report of physical examination, a pulmonary 
function study, a chest roentgenogram and, unless medically 
contraindicated, a blood gas study.
    (b) As soon as possible after a miner files an application for 
benefits, the district director will provide the miner with a list of 
medical facilities and physicians in the state of the miner's residence 
and states contiguous to the state of the miner's residence that the 
Office has authorized to perform complete pulmonary evaluations. The 
miner shall select one of the facilities or physicians on the list, and 
the district director will make arrangements for the miner to be given 
a complete pulmonary evaluation by that facility or physician. The 
results of the complete pulmonary evaluation shall not be counted as 
evidence submitted by the miner under Sec. 725.414.
    (c) If any medical examination or test conducted under paragraph 
(a) of this section is not administered or reported in substantial 
compliance with the provisions of part 718 of this subchapter, or does 
not provide sufficient information to allow the district director to 
decide whether the miner is eligible for benefits, the district

[[Page 55037]]

director shall schedule the miner for further examination and testing. 
Where the deficiencies in the report are the result of a lack of effort 
on the part of the miner, the miner will be afforded one additional 
opportunity to produce a satisfactory result. In order to determine 
whether any medical examination or test was administered and reported 
in substantial compliance with the provisions of part 718 of this 
subchapter, the district director may have any component of such 
examination or test reviewed by a physician selected by the district 
director.
    (d) After the physician completes the report authorized by 
paragraph (a), the district director will inform the miner that he may 
elect to have the results of the objective testing sent to his treating 
physician for use in preparing a medical opinion. The district director 
will also inform the claimant that any medical opinion submitted by his 
treating physician will count as one of the two medical opinions that 
the miner may submit under Sec. 725.414.
    (e) If, at any time after the completion of the initial complete 
pulmonary evaluation, the district director believes that unresolved 
medical questions remain, he may require the claimant to be examined by 
a physician or medical facility selected by the district director from 
the list of physicians and facilities authorized to perform complete 
pulmonary evaluations. If additional medical evidence is obtained in 
accordance with this paragraph, the district director may order the 
physician selected to retest or reexamine the miner to do so without 
the presence or participation of any other physician who previously 
examined the miner, and without benefit of the conclusions of any other 
physician who has examined the miner. Any evidence obtained under this 
paragraph shall be considered a part of the complete pulmonary 
evaluation obtained under paragraph (b) of this section for purposes of 
the limitations established in Sec. 725.414, except that any additional 
chest X-ray, pulmonary function test, or blood gas study performed in 
connection with a request for re-examination under this paragraph shall 
be substituted for the chest X-ray, pulmonary function test, or blood 
gas study performed in connection with the original evaluation.
    (f) The cost of any medical examination or test authorized under 
this section, including the cost of travel to and from the examination, 
shall be paid by the fund. No reimbursement for overnight 
accommodations shall be authorized unless the district director 
determines that an adequate testing facility is unavailable within one 
day's round trip travel by automobile from the miner's residence. The 
fund shall be reimbursed for such payments by an operator, if any, 
found liable for the payment of benefits to the claimant. If an 
operator fails to repay such expenses, with interest, upon request of 
the Office, the entire amount may be collected in an action brought 
under section 424 of the Act and Sec. 725.603.


Sec. 725.407  Identification and notification of responsible operator.

    (a) Upon receipt of the miner's employment history, the district 
director shall investigate whether any operator may be held liable for 
the payment of benefits as a responsible operator in accordance with 
the criteria contained in subpart G of this part.
    (b) Prior to issuing an initial finding pursuant to Sec. 725.410, 
the district director may identify one or more operators potentially 
liable for the payment of benefits in accordance with the criteria set 
forth in Sec. 725.495. The district director shall notify each such 
operator of the existence of the claim. Where the records maintained by 
the Office pursuant to part 726 of this subchapter indicate that the 
operator had obtained a policy of insurance, and the claim falls within 
such policy, the notice provided pursuant to this section shall also be 
sent to the operator's carrier. Any operator or carrier notified of the 
claim shall thereafter be considered a party to the claim in accordance 
with Sec. 725.360 unless it is dismissed by an adjudication officer and 
is not thereafter notified again of its potential liability.
    (c) The notification issued pursuant to this section shall include 
a copy of the claimant's application and a copy of all evidence 
obtained by the district director relating to the miner's employment. 
The district director may request the operator to answer specific 
questions, including, but not limited to, questions related to the 
nature of its operations, its relationship with the miner, its 
financial status, including any insurance obtained to secure its 
obligations under the Act, and its relationship with other potentially 
liable operators. A copy of any notification issued pursuant to this 
section shall be sent to the claimant by regular mail.
    (d) If at any time before a case is referred to the Office of 
Administrative Law Judges, the district director determines that an 
operator which may be liable for the payment of benefits has not been 
notified under this section or has been incorrectly dismissed pursuant 
to Sec. 725.413(c)(1), the district director shall give such operator 
notice of its potential liability in accordance with this section. The 
adjudication officer shall then take such further action on the claim 
as may be appropriate. There shall be no time limit applicable to a 
later identification of an operator under this paragraph if the 
operator fraudulently concealed its identity as an employer of the 
miner. The district director may not notify additional operators of 
their potential liability after a case has been referred to the Office 
of Administrative Law Judges, unless the case was referred for a 
hearing to determine whether the claim was properly denied as abandoned 
pursuant to Sec. 725.409.


Sec. 725.408  Operator's response to notification.

    (a)(1) An operator which receives notification under Sec. 725.407 
shall, within 30 days of receipt, file a response, and shall indicate 
its intent to accept or contest its identification as a potentially 
liable operator. The operator's response shall also be sent to the 
claimant by regular mail.
    (2) If the operator contests its identification, it shall, on a 
form supplied by the district director, state the precise nature of its 
disagreement by admitting or denying each of the following assertions. 
In answering these assertions, the term ``operator'' shall include any 
operator for which the identified operator may be considered a 
successor operator pursuant to Sec. 725.492.
    (i) That the named operator was an operator for any period after 
June 30, 1973;
    (ii) That the operator employed the miner as a miner for a 
cumulative period of not less than one year;
    (iii) That the miner was exposed to coal mine dust while working 
for the operator;
    (iv) That the miner's employment with the operator included at 
least one working day after December 31, 1969; and
    (v) That the operator is capable of assuming liability for the 
payment of benefits.
    (3) An operator which receives notification under Sec. 725.407, and 
which fails to file a response within the time limit provided by this 
section, shall not be allowed to contest its liability for the payment 
of benefits on the grounds set forth in paragraph (a)(2) of this 
section.
    (b)(1) Within 90 days of the date on which it receives notification 
under Sec. 725.407, an operator may submit documentary evidence in 
support of its position.

[[Page 55038]]

    (2) No documentary evidence relevant to the grounds set forth in 
paragraph (a)(2) may be admitted in any further proceedings unless it 
is submitted within the time limits set forth in this section.


Sec. 725.409  Denial of a claim by reason of abandonment.

    (a) A claim may be denied at any time by the district director by 
reason of abandonment where the claimant fails:
    (1) To undergo a required medical examination without good cause; 
or,
    (2) To submit evidence sufficient to make a determination of the 
claim; or,
    (3) To pursue the claim with reasonable diligence; or,
    (4) To attend an informal conference without good cause.
    (b)(1) If the district director determines that a denial by reason 
of abandonment under paragraphs (a)(1) through (3) of this section is 
appropriate, he or she shall notify the claimant of the reasons for 
such denial and of the action which must be taken to avoid a denial by 
reason of abandonment. If the claimant completes the action requested 
within the time allowed, the claim shall be developed, processed and 
adjudicated as specified in this part. If the claimant does not fully 
comply with the action requested by the district director, the district 
director shall notify the claimant that the claim has been denied by 
reason of abandonment. Any request for a hearing prior to the issuance 
of such notification shall be considered invalid and of no effect. Such 
notification shall be served on the claimant and all other parties to 
the claim by certified mail.
    (2) In any case in which a claimant has failed to attend an 
informal conference and has not provided the district director with his 
reasons for failing to attend, the district director shall ask the 
claimant to explain his absence. In considering whether the claimant 
had good cause for his failure to attend the conference, the district 
director shall consider all relevant circumstances, including the age, 
education, and health of the claimant, as well as the distance between 
the claimant's residence and the location of the conference. If the 
district director concludes that the claimant had good cause for 
failing to attend the conference, he may continue processing the claim, 
including, where appropriate under Sec. 725.416, the scheduling of an 
informal conference. If the claimant does not supply the district 
director with his reasons for failing to attend the conference within 
30 days of the date of the district director's request, or the district 
director concludes that the reasons supplied by the claimant do not 
establish good cause, the district director shall notify the claimant 
that the claim has been denied by reason of abandonment. Any request 
for a hearing prior to the issuance of such notification shall be 
considered invalid and of no effect. Such notification shall be served 
on the claimant and all other parties to the claim by certified mail.
    (c) The denial of a claim by reason of abandonment shall become 
effective and final unless, within 30 days after the denial is issued, 
the claimant requests a hearing. Following the expiration of the 30-day 
period, a new claim may be filed at any time pursuant to Sec. 725.309. 
If the claimant timely requests a hearing, the district director shall 
refer the case to the Office of Administrative Law Judges in accordance 
with Sec. 725.421. The hearing will be limited to the issue of whether 
the claim was properly denied by reason of abandonment. If the 
administrative law judge determines that the claim was not properly 
denied by reason of abandonment, he shall remand the claim to the 
district director for the completion of administrative processing.


Sec. 725.410  Initial findings by the district director.

    (a) Based upon the evidence developed, the district director shall 
make an initial finding with respect to the claim. The initial finding 
shall include a determination with respect to the claimant's 
eligibility and a determination with respect to whether any of the 
operators notified of potential liability under Sec. 725.407 of this 
part is the responsible operator in accordance with Sec. 725.495.
    (b) The district director shall serve the initial finding, together 
with a copy of all of the evidence developed, on the claimant, the 
responsible operator, and all other operators which received 
notification pursuant to Sec. 725.407. The initial finding shall be 
served on each party by certified mail.
    (c) If the evidence submitted does not support a finding of 
eligibility, the initial finding shall specify the reasons why the 
claim cannot be approved and the additional evidence necessary to 
establish entitlement. The initial finding shall notify the claimant 
that he has the right to obtain further adjudication of his eligibility 
in accordance with this subpart, that he has the right to submit 
additional evidence in accordance with this subpart, and that he has 
the right to obtain counsel, under the terms set forth in subpart D of 
this part, in order to assist him. The initial finding shall further 
notify the claimant that, if he establishes his entitlement to 
benefits, the cost of obtaining additional evidence, along with a 
reasonable attorney's fee, shall be reimbursed by the responsible 
operator, or, if no operator can be held liable, the fund.


Sec. 725.411  Initial finding--eligibility.

    (a) Claimant response.
    (1) Finding that the claimant is not eligible for benefits.
    (i) Within one year after the district director issues an initial 
finding that the claimant is not eligible for benefits, the claimant 
may request further adjudication of the claim. Any statement filed 
during the applicable time period demonstrating the claimant's 
intention to pursue his or her claim shall be considered a request for 
further adjudication in accordance with this section. The claimant may 
not request a hearing at this point. Any request for a hearing prior to 
the issuance of a proposed decision and order shall be considered 
invalid and of no effect.
    (ii) If the claimant does not request further adjudication of the 
claim within the time limits set forth in this section, the claim shall 
be deemed to have been denied, effective as of the date of the issuance 
of the initial finding. Any submission by the claimant after the time 
limits set forth in this section will be treated as an intent to file a 
new claim for benefits in accordance with Sec. 725.305. Such a claim 
may be approved only if it meets the conditions of Sec. 725.309.
    (2) Finding that the claimant is eligible for benefits. If the 
district director issues an initial finding that the evidence submitted 
supports a finding of eligibility, the claimant may, within 30 days of 
the issuance of the initial finding, request revision of any of the 
terms of the initial finding. If the claimant does not file a timely 
request pursuant to this paragraph, he shall be deemed to have accepted 
the district director's initial finding.
    (b) Operator response. (1) Within 30 days of the issuance of an 
initial finding, the responsible operator initially found liable for 
the payment of benefits shall file a response with regard to the 
claimant's eligibility for benefits. The response shall specifically 
indicate whether the operator agrees or disagrees with the initial 
finding of eligibility. A response that the operator is not liable for 
benefits shall not be sufficient to contest the claimant's eligibility 
under this section. A response to the initial finding of eligibility 
shall be filed regardless of whether the district director finds the 
claimant eligible for benefits.

[[Page 55039]]

    (2) If the operator initially found liable for the payment of 
benefits does not file a timely response, it shall be deemed to have 
accepted the district director's initial finding with respect to the 
claimant's eligibility, and shall not, except as provided in 
Sec. 725.463, be permitted to raise issues or present evidence with 
respect to issues inconsistent with the initial findings in any further 
proceeding conducted with respect to the claim.


Sec. 725.412  Initial finding-liability.

    (a) Within 30 days of the issuance of an initial finding, the 
responsible operator initially found liable for the payment of benefits 
shall file a response with regard to its liability for benefits. The 
response shall specifically indicate whether the operator agrees or 
disagrees with the initial finding of liability. A response that the 
operator is not liable for benefits under this section shall not be 
sufficient to contest the claimant's eligibility. A response to the 
initial finding of liability shall be filed regardless of whether or 
not the district director finds the claimant eligible for benefits.
    (b) If the responsible operator initially found liable for the 
payment of benefits does not file a timely response, it shall be deemed 
to have accepted the district director's initial finding with respect 
to its liability, and to have waived its right to contest its liability 
in any further proceeding conducted with respect to the claim.


Sec. 725.413  Initial adjudication by the district director.

    (a) If the district director issues an initial finding that the 
evidence submitted supports a finding of eligibility, and
    (1) The responsible operator does not file a timely response under 
either Sec. 725.411 or Sec. 725.412, or
    (2) There is no operator responsible for the payment of benefits, 
the district director shall, after considering any request filed by the 
claimant pursuant to Sec. 725.411(a)(2), issue a proposed decision and 
order in accordance with Sec. 725.418.
    (b) If the district director issues an initial finding that the 
evidence submitted does not support a finding of eligibility, and the 
claimant does not file a timely response pursuant to Sec. 725.411, the 
claim shall be considered to have been denied, effective as of the date 
of the issuance of the initial finding. Any later submission by the 
claimant will be treated as an intent to file a claim for benefits in 
accordance with Sec. 725.305. Such a claim may be approved only if it 
meets the conditions of Sec. 725.309.
    (c)(1) In all other cases, the district director shall, following 
the expiration of all applicable time periods for filing responses, or 
the receipt of responses, notify all parties of any responses received 
from the claimant and the responsible operator. The district director 
may, in his discretion, dismiss as parties any of the operators 
notified of their potential liability pursuant to Sec. 725.407. If the 
district director thereafter determines that the participation of a 
party dismissed pursuant to this section is required, he may once again 
notify the operator in accordance with Sec. 725.407(d).
    (2) The district director shall notify the parties of a schedule 
for submitting documentary evidence. Such schedule shall allow the 
parties not less than 60 days within which to submit evidence in 
support of their contentions, and shall provide not less than an 
additional 30 days within which the parties may respond to evidence 
submitted by other parties. Any such evidence must meet the 
requirements set forth in Sec. 725.414 in order to be admitted into the 
record.


Sec. 725.414  Development of evidence.

    (a) Medical evidence. (1) For purposes of this section, a medical 
report shall consist of a physician's written assessment of the miner's 
respiratory or pulmonary condition. A medical report may be prepared by 
a physician who examined the miner and/or reviewed the available 
admissible evidence. A physician's written assessment of a single 
objective test, such as a chest X-ray or a pulmonary function test, 
shall not be considered a medical report for purposes of this section.
    (2)(i) The claimant shall be entitled to submit, in support of his 
affirmative case, no more than two chest X-ray interpretations, the 
results of no more than two pulmonary function tests, the results of no 
more than two arterial blood gas studies, and no more than two medical 
reports. Any chest X-ray interpretations, pulmonary function test 
results, blood gas studies and physicians' opinions that appear in a 
medical report must each be admissible under this paragraph or 
paragraph (a)(4) of this section.
    (ii) The claimant shall be entitled to submit, in rebuttal of the 
case presented by the party or parties opposing entitlement, no more 
than one physician's interpretation of each chest X-ray, pulmonary 
function test, or arterial blood gas study submitted by any potentially 
liable operator or the fund, as appropriate, under paragraph (a)(3)(i) 
or (a)(3)(iii) of this section and by the Director pursuant to 
Sec. 725.406. In any case in which the party opposing entitlement has 
submitted the results of other testing pursuant to Sec. 718.107, the 
claimant shall be entitled to submit one physician's assessment of each 
piece of such evidence in rebuttal. In addition, where the responsible 
operator or fund has submitted rebuttal evidence under paragraph 
(a)(3)(ii) or (a)(3)(iii) of this section with respect to medical 
testing submitted by the claimant, the claimant shall be entitled to 
submit an additional statement from the physician who originally 
interpreted the chest X-ray or administered the objective testing. 
Where the rebuttal evidence tends to undermine the conclusion of a 
physician who prepared a medical report submitted by the claimant, the 
claimant shall be entitled to submit an additional statement from the 
physician who prepared the medical report explaining his conclusion in 
light of the rebuttal evidence.
    (3) The Department intends that all parties to a claim, including 
all operators notified of their potential liability under Sec. 725.407 
that have not been dismissed, shall be bound by a final adjudication of 
the claimant's eligibility. Accordingly, any operator notified of its 
potential liability in accordance with Sec. 725.407 shall not be 
entitled to require the claimant to re-adjudicate his eligibility in 
the event the district director's initial finding with respect to the 
responsible operator is determined to have been erroneous.
    (i) The responsible operator and any other operators that remain 
parties to the case shall collectively be entitled to obtain and 
submit, in support of their affirmative case, no more than two chest X-
ray interpretations, the results of no more than two pulmonary function 
tests, the results of no more than two arterial blood gas studies, and 
no more than two medical reports. Any chest X-ray interpretations, 
pulmonary function test results, blood gas studies and physicians' 
opinions that appear in a medical report must each be admissible under 
this paragraph or paragraph (a)(4) of this section. In obtaining such 
evidence, neither the responsible operator, nor any other operator 
permitted to submit evidence under paragraph (a)(3)(iv) of this 
section, may require the miner to travel more than 100 miles from his 
or her place of residence, or the distance traveled by the miner in 
obtaining the complete pulmonary evaluation provided by Sec. 725.406, 
whichever is greater, unless a trip of greater distance is authorized 
in writing by the district director. If a miner unreasonably refuses--
    (A) To provide the Office or a coal mine operator with a complete 
statement of his or her medical history

[[Page 55040]]

and/or to authorize access to his or her medical records, or
    (B) To submit to an evaluation or test requested by the district 
director or a potentially liable operator, the miner's claim may be 
denied by reason of abandonment (See Sec. 725.409).
    (ii) The responsible operator and any other operators that remain 
parties to the case shall be entitled to submit, in rebuttal of the 
case presented by the claimant, no more than one physician's 
interpretation of each chest X-ray, pulmonary function test, or 
arterial blood gas study submitted by the claimant under paragraph 
(a)(2)(i) of this section and by the Director pursuant to Sec. 725.406. 
In any case in which the claimant has submitted the results of other 
testing pursuant to Sec. 718.107, the responsible operator and other 
operators that remain parties to the case shall collectively be 
entitled to submit one physician's assessment of each piece of such 
evidence in rebuttal. In addition, where the claimant has submitted 
rebuttal evidence under paragraph (a)(2)(ii) of this section, the 
responsible operator and other operators that remain parties to the 
case shall collectively be entitled to submit an additional statement 
from the physician who originally interpreted the chest X-ray or 
administered the objective testing. Where the rebuttal evidence tends 
to undermine the conclusion of a physician who prepared a medical 
report submitted by the responsible operator, the responsible operator 
shall be entitled to submit an additional statement from the physician 
who prepared the medical report explaining his conclusion in light of 
the rebuttal evidence.
    (iii) In a case in which the district director has not identified 
any potentially liable operators, the district director shall be 
entitled to exercise the rights of a responsible operator under this 
section, except that the evidence obtained in connection with the 
complete pulmonary evaluation performed pursuant to Sec. 725.406 shall 
be considered evidence obtained and submitted by the Director, OWCP, 
for purposes of paragraph (a)(3)(i) of this section.
    (iv) Except for the responsible operator, any operator notified of 
its potential liability pursuant to Sec. 725.407, and which has not 
been dismissed as a party by the district director, must request 
permission of the adjudication officer to obtain and submit a medical 
report or the results of any objective medical testing. Such permission 
shall be granted only upon a showing that the responsible operator has 
not undertaken a full development of the evidence, and that without 
such permission, the potentially liable operator will be unable to 
secure a full and fair litigation of the claimant's eligibility. In 
granting such permission, the adjudication officer shall take such 
action as is necessary to prevent the miner from undergoing unnecessary 
testing, and shall ensure that the record contains, in support of the 
operators' affirmative case, no more than two chest X-ray 
interpretations, the results of no more than two pulmonary function 
tests, the results of no more than two arterial blood gas studies, and 
no more than two medical reports submitted by the operators opposing 
the claimant's eligibility. The adjudication officer shall also ensure 
that the record contains, in rebuttal of the affirmative case presented 
by the claimant, no more than one physician's interpretation of each 
chest X-ray, pulmonary function test, and arterial blood gas study 
submitted by the claimant under paragraph (a)(2)(ii) of this section 
and by the Director pursuant to Sec. 725.406.
    (4) Notwithstanding the limitations in paragraphs (a)(2) and (a)(3) 
of this section, any record of a miner's hospitalization for a 
respiratory or pulmonary or related disease, medical treatment for a 
respiratory or pulmonary or related disease, or a biopsy or autopsy may 
be received into evidence.
    (5) A copy of any documentary evidence submitted by a party must be 
served on all other parties to the claim. If the claimant is not 
represented by an attorney, the district director shall mail a copy of 
all documentary evidence submitted by the claimant to all other parties 
to the claim. Following the development and submission of affirmative 
medical evidence, the parties may submit rebuttal evidence in 
accordance with the schedule issued by the district director.
    (6) The district director shall admit into the record all evidence 
submitted in accordance with this section, and shall also admit the 
results of any medical examination or test conducted pursuant to 
Sec. 725.406.
    (b) Evidence pertaining to liability. (1) Except as provided by 
Sec. 725.408(b)(2), the potential responsible operator may submit 
evidence to demonstrate that it is not the potentially liable operator 
that most recently employed the claimant. Failure to submit such 
evidence shall be deemed an acceptance of the district director's 
initial finding of liability.
    (2) Any other party may submit evidence regarding the liability of 
the potential responsible operator or any other operator.
    (3) A copy of any documentary evidence submitted under this 
paragraph must be mailed to all other parties to the claim. Following 
the submission of affirmative evidence, the parties may submit rebuttal 
evidence in accordance with the schedule issued by the district 
director.
    (c) Testimony. A physician who prepared a medical report admitted 
under this section may testify with respect to the claim at any formal 
hearing conducted in accordance with subpart F of this part, or by 
deposition. If a party has submitted fewer than two medical reports as 
part of that party's affirmative case under this section, a physician 
who did not prepare a medical report may testify in lieu of such a 
medical report. The testimony of such a physician shall be considered a 
medical report for purposes of the limitations provided by this 
section. A party may offer the testimony of no more than two physicians 
under the provisions of this section unless the adjudication officer 
finds good cause under paragraph (b)(1) of Sec. 725.456. In accordance 
with the schedule issued by the district director, all parties shall 
notify the district director of the name and current address of any 
potential witness whose testimony pertains to the liability of a 
potentially liable operator or the responsible operator. Absent such 
notice, the testimony of a witness relevant to the liability of a 
potentially liable operator or the responsible operator shall not be 
admitted in any hearing conducted with respect to the claim unless the 
administrative law judge finds that the lack of notice should be 
excused due to extraordinary circumstances.
    (d) Except to the extent permitted by Sec. 725.456 and 
Sec. 725.310(b), the limitations set forth in this section shall apply 
to all proceedings conducted with respect to a claim, and no 
documentary evidence pertaining to liability shall be admitted in any 
further proceeding conducted with respect to a claim unless it is 
submitted to the district director in accordance with this section.
    (e) Any documentary evidence obtained by a party during the time a 
claim is pending before a district director, which is withheld from the 
district director or any other party to the claim, shall not be 
admitted into the record in any later proceedings held with respect to 
the claim in the absence of extraordinary circumstances, unless the 
admission of such evidence is requested by the Director or such other 
party.


Sec. 725.415  Action by the district director after development of 
operator's evidence.

    (a) At the end of the period permitted under Sec. 725.413(c)(2) for 
the submission

[[Page 55041]]

of evidence, the district director shall review the claim on the basis 
of all evidence submitted in accordance with Sec. 725.414.
    (b) After review of all evidence submitted, the district director 
may schedule a conference in accordance with Sec. 725.416, issue a 
proposed decision and order in accordance with Sec. 725.418, or take 
such other action as the district director considers appropriate.


Sec. 725.416  Conferences.

    (a) At the conclusion of the period permitted by Sec. 725.413(c)(2) 
for the submission of evidence, the district director may conduct an 
informal conference in any claim where it appears that such conference 
will assist in the voluntary resolution of any issue raised with 
respect to the claim. The conference proceedings shall not be 
stenographically reported and sworn testimony shall not be taken.
    (b) The district director shall notify the parties of a definite 
time and place for the conference. The notification shall set forth the 
specific reasons why the district director believes that a conference 
will assist in the voluntary resolution of any issue raised with 
respect to the claim. No sanction may be imposed under paragraph (c) of 
this section unless the record contains a notification that meets the 
requirements of this section. The district director may in his or her 
discretion, or on the motion of any party, cancel or reschedule a 
conference, and allow any or all of the parties to participate by 
telephone.
    (c) The unexcused failure of any party to appear at an informal 
conference shall be grounds for the imposition of sanctions. If the 
claimant fails to appear, the district director may take such steps as 
are authorized by Sec. 725.409(b)(2) to deny the claim by reason of 
abandonment. If the responsible operator fails to appear, it shall be 
deemed to have waived its right to contest its potential liability for 
an award of benefits and, in the discretion of the district director, 
its right to contest any issue related to the claimant's eligibility.
    (d) Any representative of an operator, of an operator's insurance 
carrier, or of a claimant, authorized to represent such party in 
accordance with Sec. 725.362, shall be deemed to have sufficient 
authority to stipulate facts or issues or agree to a final disposition 
of the claim.
    (e) Procedures to be followed at a conference shall be within the 
discretion of the district director. In the case of a conference 
involving an unrepresented claimant, the district director shall fully 
inform the claimant of the consequences of any agreement the claimant 
is asked to sign. If it is apparent that the unrepresented claimant 
does not understand the nature or effect of the proceedings, the 
district director shall not permit the execution of any stipulation or 
agreement in the claim unless it is clear that the best interests of 
the claimant are served thereby.


Sec. 725.417  Action at the conclusion of conference.

    (a) At the conclusion of a conference, the district director shall 
prepare a stipulation of contested and uncontested issues which shall 
be signed by the parties and the district director. If a hearing is 
conducted with respect to the claim, this stipulation shall be 
submitted to the Office of Administrative Law Judges and placed in the 
claim record.
    (b) In any case, where appropriate, the district director may 
permit a reasonable time for the submission of additional evidence 
following a conference, provided that such evidence does not exceed the 
limits set forth in Sec. 725.414.
    (c) Within 20 days after the termination of all conference 
proceedings, the district director shall prepare and send to the 
parties by certified mail a memorandum of conference, on a form 
prescribed by the Office, summarizing the conference and including the 
following:
    (1) Date, time and place of conference;
    (2) Names, addresses, telephone numbers, and status (i.e., 
claimant, attorney, operator, carrier's representative, etc.);
    (3) Issues discussed at conference;
    (4) Additional material presented (i.e., medical reports, 
employment reports, marriage certificates, birth certificates, etc.);
    (5) Issues resolved at conference; and
    (6) District director's recommendation.
    (d) Each party shall, in writing, either accept or reject, in whole 
or in part, the district director's recommendation, stating the reasons 
for such rejection. If no reply is received within 30 days from the 
date on which the recommendation was sent to parties, the 
recommendation shall be deemed accepted.


Sec. 725.418  Proposed decision and order.

    (a) After evaluating the parties' responses to the district 
director's recommendation pursuant to Sec. 725.417, or, if no informal 
conference is to be held, at the conclusion of the period permitted by 
Sec. 725.413(c)(2) for the submission of evidence, the district 
director shall issue a proposed decision and order. A proposed decision 
and order is a document, issued by the district director after the 
evidentiary development of the claim is completed and all contested 
issues, if any, are joined, which purports to resolve a claim on the 
basis of the evidence submitted to or obtained by the district 
director. A proposed decision and order shall be considered a final 
adjudication of a claim only as provided in Sec. 725.419. A proposed 
decision and order may be issued by the district director in any claim 
and at any time during the adjudication of a claim if:
    (1) Issuance is authorized or required by this part; or,
    (2) The district director determines that its issuance will 
expedite the adjudication of the claim.
    (b) A proposed decision and order shall contain findings of fact 
and conclusions of law and an appropriate order shall be served on all 
parties to the claim by certified mail.


Sec. 725.419  Response to proposed decision and order.

    (a) Within 30 days after the date of issuance of a proposed 
decision and order, any party may, in writing, request a revision of 
the proposed decision and order or a hearing. If a hearing is 
requested, the district director shall refer the claim to the Office of 
Administrative Law Judges (see Sec. 725.421).
    (b) Any response made by a party to a proposed decision and order 
shall specify the findings and conclusions with which the responding 
party disagrees, and shall be served on the district director and all 
other parties to the claim.
    (c) If a timely request for revision of a proposed decision and 
order is made, the district director may amend the proposed decision 
and order, as circumstances require, and serve the revised proposed 
decision and order on all parties or take such other action as is 
appropriate. If a revised proposed decision and order is issued, each 
party to the claim shall have 30 days from the date of issuance of that 
revised proposed decision and order within which to request a hearing.
    (d) If no response to a proposed decision and order is sent to the 
district director within the period described in paragraph (a) of this 
section, or if no response to a revised proposed decision and order is 
sent to the district director within the period described in paragraph 
(c) of this section, the proposed decision and order shall become a 
final decision and order, which is effective upon the expiration of the 
applicable 30-day period. Once a

[[Page 55042]]

proposed decision and order or revised proposed decision and order 
becomes final and effective, all rights to further proceedings with 
respect to the claim shall be considered waived, except as provided in 
Sec. 725.310.


Sec. 725.420  Initial determinations.

    (a) Section 9501(d)(1)(A)(1) of the Internal Revenue Code (26 
U.S.C.) provides that the Black Lung Disability Trust Fund shall begin 
the payment of benefits on behalf of an operator in any case in which 
the operator liable for such payments has not commenced payment of such 
benefits within 30 days after the date of an initial determination of 
eligibility by the Secretary. For claims filed on or after January 1, 
1982, the payment of such interim benefits from the fund is limited to 
benefits accruing after the date of such initial determination.
    (b) Except as provided in Sec. 725.415, after the district director 
has determined that a claimant is eligible for benefits, on the basis 
of all evidence submitted by a claimant and operator, and has 
determined that a hearing will be necessary to resolve the claim, the 
district director shall in writing so inform the parties and direct the 
operator to begin the payment of benefits to the claimant in accordance 
with Sec. 725.522. The date on which this writing is sent to the 
parties shall be considered the date of initial determination of the 
claim.
    (c) If a notified operator refuses to commence payment of a claim 
within 30 days from the date on which an initial determination is made 
under this section, benefits shall be paid by the fund to the claimant 
in accordance with Sec. 725.522, and the operator shall be liable to 
the fund, if such operator is determined liable for the claim, for all 
benefits paid by the fund on behalf of such operator, and, in addition, 
such penalties and interest as are appropriate.


Sec. 725.421  Referral of a claim to the Office of Administrative Law 
Judges.

    (a) In any claim for which a formal hearing is requested or 
ordered, and with respect to which the district director has completed 
development and adjudication without having resolved all contested 
issues in the claim, the district director shall refer the claim to the 
Office of Administrative Law Judges for a hearing.
    (b) In any case referred to the Office of Administrative Law Judges 
under this section, the district director shall transmit to that office 
the following documents, which shall be placed in the record at the 
hearing subject to the objection of any party:
    (1) Copies of the claim form or forms;
    (2) Any statement, document, or pleading submitted by a party to 
the claim;
    (3) A copy of the notification to an operator of its possible 
liability for the claim;
    (4) All evidence submitted to the district director under this 
part;
    (5) Any written stipulation of law or fact or stipulation of 
contested and uncontested issues entered into by the parties;
    (6) Any pertinent forms submitted to the district director;
    (7) The statement by the district director of contested and 
uncontested issues in the claim; and
    (8) The district director's initial determination of eligibility or 
other documents necessary to establish the right of the fund to 
reimbursement, if appropriate. Copies of the transmittal notice shall 
also be sent to all parties to the claim by regular mail.
    (c) A party may at any time request and obtain from the district 
director copies of documents transmitted to the Office of 
Administrative Law Judges under paragraph (b) of this section. If the 
party has previously been provided with such documents, additional 
copies may be sent to the party upon the payment of a copying fee to be 
determined by the district director.


Sec. 725.422  Legal assistance.

    The Secretary or his or her designee may, upon request, provide a 
claimant with legal assistance in processing a claim under the Act. 
Such assistance may be made available to a claimant in the discretion 
of the Solicitor of Labor or his or her designee at any time prior to 
or during the time in which the claim is being adjudicated and shall be 
furnished without charge to the claimant. Representation of a claimant 
in adjudicatory proceedings shall not be provided by the Department of 
Labor unless it is determined by the Solicitor of Labor that such 
representation is in the best interests of the black lung benefits 
program. In no event shall representation be provided to a claimant in 
a claim with respect to which the claimant's interests are adverse to 
those of the Secretary of Labor or the fund.


Sec. 725.423  Extensions of time.

    Except for the one-year time limit set forth in 
Sec. 725.411(a)(1)(i) and the 30-day time limit set forth in 
Sec. 725.419, any of the time periods set forth in this subpart may be 
extended, for good cause shown, by filing a request for an extension 
with the district director prior to the expiration of the time period.

Subpart F--Hearings


Sec. 725.450  Right to a hearing.

    Any party to a claim (see Sec. 725.360) shall have a right to a 
hearing concerning any contested issue of fact or law unresolved by the 
district director. There shall be no right to a hearing until the 
processing and adjudication of the claim by the district director has 
been completed. There shall be no right to a hearing in a claim with 
respect to which a determination of the claim made by the district 
director has become final and effective in accordance with this part.


Sec. 725.451  Request for hearing.

    After the completion of proceedings before the district director, 
or as is otherwise indicated in this part, any party may in writing 
request a hearing on any contested issue of fact or law (see 
Sec. 725.419). A district director may on his or her own initiative 
refer a case for hearing. If a hearing is requested, or if a district 
director determines that a hearing is necessary to the resolution of 
any issue, the claim shall be referred to the Chief Administrative Law 
Judge for a hearing under Sec. 725.421.


Sec. 725.452  Type of hearing; parties.

    (a) A hearing held under this part shall be conducted by an 
administrative law judge designated by the Chief Administrative Law 
Judge. Except as otherwise provided by this part, all hearings shall be 
conducted in accordance with the provisions of 5 U.S.C. 554 et seq.
    (b) All parties to a claim shall be permitted to participate fully 
at a hearing held in connection with such claim.
    (c) A full evidentiary hearing need not be conducted if a party 
moves for summary judgment and the administrative law judge determines 
that there is no genuine issue as to any material fact and that the 
moving party is entitled to the relief requested as a matter of law. 
All parties shall be entitled to respond to the motion for summary 
judgment prior to decision thereon.
    (d) If the administrative law judge believes that an oral hearing 
is not necessary (for any reason other than on motion for summary 
judgment), the judge shall notify the parties by written order and 
allow at least 30 days for the parties to respond. The administrative 
law judge shall hold the oral hearing if any party makes a timely 
request in response to the order.


Sec. 725.453  Notice of hearing.

    All parties shall be given at least 30 days written notice of the 
date and place

[[Page 55043]]

of a hearing and the issues to be resolved at the hearing. Such notice 
shall be sent to each party or representative by certified mail.


Sec. 725.454  Time and place of hearing; transfer of cases.

    (a) The Chief Administrative Law Judge shall assign a definite time 
and place for a formal hearing, and shall, where possible, schedule the 
hearing to be held at a place within 75 miles of the claimant's 
residence unless an alternate location is requested by the claimant.
    (b) If the claimant's residence is not in any State, the Chief 
Administrative Law Judge may, in his or her discretion, schedule the 
hearing in the country of the claimant's residence.
    (c) The Chief Administrative Law Judge or the administrative law 
judge assigned the case may in his or her discretion direct that a 
hearing with respect to a claim shall begin at one location and then 
later be reconvened at another date and place.
    (d) The Chief Administrative Law Judge or administrative law judge 
assigned the case may change the time and place for a hearing, either 
on his or her own motion or for good cause shown by a party. The 
administrative law judge may adjourn or postpone the hearing for good 
cause shown, at any time prior to the mailing to the parties of the 
decision in the case. Unless otherwise agreed, at least 10 days notice 
shall be given to the parties of any change in the time or place of 
hearing.
    (e) The Chief Administrative Law Judge may for good cause shown 
transfer a case from one administrative law judge to another.


Sec. 725.455  Hearing procedures; generally.

    (a) General. The purpose of any hearing conducted under this 
subpart shall be to resolve contested issues of fact or law. Except as 
provided in Sec. 725.421(b)(8), any findings or determinations made 
with respect to a claim by a district director shall not be considered 
by the administrative law judge.
    (b) Evidence. The administrative law judge shall at the hearing 
inquire fully into all matters at issue, and shall not be bound by 
common law or statutory rules of evidence, or by technical or formal 
rules of procedure, except as provided by 5 U.S.C. 554 and this 
subpart. The administrative law judge shall receive into evidence the 
testimony of the witnesses and parties, the evidence submitted to the 
Office of Administrative Law Judges by the district director under 
Sec. 725.421, and such additional evidence as may be submitted in 
accordance with the provisions of this subpart. The administrative law 
judge may entertain the objections of any party to the evidence 
submitted under this section.
    (c) Procedure. The conduct of the hearing and the order in which 
allegations and evidence shall be presented shall be within the 
discretion of the administrative law judge and shall afford the parties 
an opportunity for a fair hearing.
    (d) Oral argument and written allegations. The parties, upon 
request, may be allowed a reasonable time for the presentation of oral 
argument at the hearing. Briefs or other written statements or 
allegations as to facts or law may be filed by any party with the 
permission of the administrative law judge. Copies of any brief or 
other written statement shall be filed with the administrative law 
judge and served on all parties by the submitting party.


Sec. 725.456  Introduction of documentary evidence.

    (a) All documents transmitted to the Office of Administrative Law 
Judges under Sec. 725.421 shall be placed into evidence by the 
administrative law judge, subject to objection by any party.
    (b)(1) Documentary evidence pertaining to the liability of a 
potentially liable operator and/or the identification of a responsible 
operator which was not submitted to the district director shall not be 
admitted into the hearing record in the absence of extraordinary 
circumstances. Medical evidence in excess of the limitations contained 
in Sec. 725.414 shall not be admitted into the hearing record in the 
absence of good cause.
    (2) Subject to the limitations in paragraph (b)(1) of this section, 
any other documentary material, including medical reports, which was 
not submitted to the district director, may be received in evidence 
subject to the objection of any party, if such evidence is sent to all 
other parties at least 20 days before a hearing is held in connection 
with the claim.
    (3) Documentary evidence, which is not exchanged with the parties 
in accordance with this paragraph, may be admitted at the hearing with 
the written consent of the parties or on the record at the hearing, or 
upon a showing of good cause why such evidence was not exchanged in 
accordance with this paragraph. If documentary evidence is not 
exchanged in accordance with paragraph (b)(2) of this section and the 
parties do not waive the 20-day requirement or good cause is not shown, 
the administrative law judge shall either exclude the late evidence 
from the record or remand the claim to the district director for 
consideration of such evidence.
    (4) A medical report which is not made available to the parties in 
accordance with paragraph (b)(2) of this section shall not be admitted 
into evidence in any case unless the hearing record is kept open for at 
least 30 days after the hearing to permit the parties to take such 
action as each considers appropriate in response to such evidence. If, 
in the opinion of the administrative law judge, evidence is withheld 
from the parties for the purpose of delaying the adjudication of the 
claim, the administrative law judge may exclude such evidence from the 
hearing record and close the record at the conclusion of the hearing.
    (c) Documentary evidence which is obtained by any party during the 
time a claim is pending before the district director, and which is 
withheld from the district director or any other party until the claim 
is forwarded to the Office of Administrative Law Judges shall, 
notwithstanding paragraph (b) of this section, not be admitted into the 
hearing record in the absence of extraordinary circumstances, unless 
such admission is requested by any opposing party (see 
Sec. 725.414(e)).
    (d) Subject to paragraph (b) of this section, documentary evidence 
which the district director excludes from the record, and the 
objections to such evidence, may be submitted by the parties to the 
administrative law judge, who shall independently determine whether the 
evidence shall be admitted.
    (1) If the evidence is admitted, the administrative law judge may, 
in his or her discretion, remand the claim to the district director for 
further consideration.
    (2) If the evidence is admitted, the administrative law judge shall 
afford the opposing party or parties the opportunity to develop such 
additional documentary evidence as is necessary to protect the right of 
cross-examination.
    (e) All medical records and reports submitted by any party shall be 
considered by the administrative law judge in accordance with the 
quality standards contained in part 718 of this subchapter.
    (f) If the administrative law judge concludes that the complete 
pulmonary evaluation provided pursuant to Sec. 725.406, or any part 
thereof, fails to comply with the applicable quality standards, or 
fails to address the relevant conditions of entitlement (see 
Sec. 725.202(d)(2)(i) through (iv)) in a manner which permits 
resolution of the claim, the administrative law judge shall, in his or 
her discretion, remand the claim to the district director with

[[Page 55044]]

instructions to develop only such additional evidence as is required, 
or allow the parties a reasonable time to obtain and submit such 
evidence, before the termination of the hearing.


Sec. 725.457  Witnesses.

    (a) Witnesses at the hearing shall testify under oath or 
affirmation. The administrative law judge and the parties may question 
witnesses with respect to any matters relevant and material to any 
contested issue. Any party who intends to present the testimony of an 
expert witness at a hearing shall so notify all other parties to the 
claim at least 10 days before the hearing. The failure to give notice 
of the appearance of an expert witness in accordance with this 
paragraph, unless notice is waived by all parties, shall preclude the 
presentation of testimony by such expert witness.
    (b) No person shall be required to appear as a witness in any 
proceeding before an administrative law judge at a place more than 100 
miles from his or her place of residence, unless the lawful mileage and 
witness fee for 1 day's attendance is paid in advance of the hearing 
date.
    (c) No person shall be permitted to testify as a witness at the 
hearing, or pursuant to deposition or interrogatory under Sec. 725.458, 
unless that person meets the requirements of Sec. 725.414(c).
    (1) In the case of a witness offering testimony relevant to the 
liability of a potentially liable operator and/or the identification of 
the responsible operator, the witness must have been identified as a 
potential hearing witness while the claim was pending before the 
district director.
    (2) In the case of a physician offering testimony relevant to the 
physical condition of the miner, such physician must have prepared a 
medical report. Alternatively, a physician may offer testimony relevant 
to the physical condition of the miner only to the extent that the 
party offering the physician's testimony has submitted fewer medical 
reports than permitted by Sec. 725.414. Such physician's opinion shall 
be considered a medical report subject to the limitations of 
Sec. 725.414. This provision shall apply to any testimony by a 
physician, whether at a formal hearing or a deposition, or by 
interrogatories.
    (d) A physician whose testimony is permitted under this section may 
testify as to any other medical evidence of record, but shall not be 
permitted to testify as to any medical evidence relevant to the miner's 
condition that is not admissible.


Sec. 725.458  Depositions; interrogatories.

    The testimony of any witness or party may be taken by deposition or 
interrogatory according to the rules of practice of the Federal 
district court for the judicial district in which the case is pending 
(or of the U.S. District Court for the District of Columbia if the case 
is pending in the District or outside the United States), except that 
at least 30 days prior notice of any deposition shall be given to all 
parties unless such notice is waived. No post-hearing deposition or 
interrogatory shall be permitted unless authorized by the 
administrative law judge upon the motion of a party to the claim. The 
testimony of any physician which is taken by deposition shall be 
subject to the limitations on the scope of the testimony contained in 
Sec. 725.457(d).


Sec. 725.459  Witness fees.

    (a) A witness testifying at a hearing before an administrative law 
judge, or whose deposition is taken, shall receive the same fees and 
mileage as witnesses in courts of the United States. If the witness is 
an expert, he or she shall be entitled to an expert witness fee. Except 
as provided in paragraphs (b) and (c) of this section, such fees shall 
be paid by the proponent of the witness.
    (b) If the witness' proponent does not intend to call the witness 
to appear at a hearing or deposition, any other party may subpoena the 
witness for cross-examination. The administrative law judge shall 
authorize the least intrusive and expensive means of cross-examination 
as he deems appropriate and necessary to the full and true disclosure 
of facts. If such witness is required to attend the hearing, give a 
deposition or respond to interrogatories for cross-examination 
purposes, the proponent of the witness shall pay the witness' fee. If 
the claimant is the proponent of the witness whose cross-examination is 
sought, and demonstrates, within time limits established by the 
administrative law judge, that he would be deprived of ordinary and 
necessary living expenses if required to pay the witness fee and 
mileage necessary to produce that witness for cross-examination, the 
administrative law judge may apportion the costs of such cross-
examination among the parties to the case. The administrative law judge 
may not apportion any costs against the fund in a case in which the 
district director has designated a responsible operator, except that 
the fund shall remain liable for any costs associated with the cross-
examination of the physician who performed the complete pulmonary 
evaluation pursuant to Sec. 725.406.
    (c) If a claimant is determined entitled to benefits, there may be 
assessed as costs against a responsible operator, if any, or the fund, 
fees and mileage for necessary witnesses attending the hearing at the 
request of the claimant. Both the necessity for the witness and the 
reasonableness of the fees of any expert witness shall be approved by 
the administrative law judge. The amounts awarded against a responsible 
operator or the fund as attorney's fees, or costs, fees and mileage for 
witnesses, shall not in any respect affect or diminish benefits payable 
under the Act.
    (d) A claimant shall be considered to be deprived of funds required 
for ordinary and necessary living expenses for purposes of paragraph 
(b) of this section where payment of the projected fee and mileage 
would meet the standards set forth at 20 CFR 404.508.


Sec. 725.460  Consolidated hearings.

    When two or more hearings are to be held, and the same or 
substantially similar evidence is relevant and material to the matters 
at issue at each such hearing, the Chief Administrative Law Judge may, 
upon motion by any party or on his or her own motion, order that a 
consolidated hearing be conducted. Where consolidated hearings are 
held, a single record of the proceedings shall be made and the evidence 
introduced in one claim may be considered as introduced in the others, 
and a separate or joint decision shall be made, as appropriate.


Sec. 725.461  Waiver of right to appear and present evidence.

    (a) If all parties waive their right to appear before the 
administrative law judge, it shall not be necessary for the 
administrative law judge to give notice of, or conduct, an oral 
hearing. A waiver of the right to appear shall be made in writing and 
filed with the Chief Administrative Law Judge or the administrative law 
judge assigned to hear the case. Such waiver may be withdrawn by a 
party for good cause shown at any time prior to the mailing of the 
decision in the claim. Even though all of the parties have filed a 
waiver of the right to appear, the administrative law judge may, 
nevertheless, after giving notice of the time and place, conduct a 
hearing if he or she believes that the personal appearance and 
testimony of the party or parties would assist in ascertaining the 
facts in issue in the claim. Where a waiver has been filed by all 
parties, and they do not appear before the administrative law judge 
personally or by representative, the administrative law judge shall 
make a record of the

[[Page 55045]]

relevant documentary evidence submitted in accordance with this part 
and any further written stipulations of the parties. Such documents and 
stipulations shall be considered the evidence of record in the case and 
the decision shall be based upon such evidence.
    (b) Except as provided in Sec. 725.456(a), the unexcused failure of 
any party to attend a hearing shall constitute a waiver of such party's 
right to present evidence at the hearing, and may result in a dismissal 
of the claim (see Sec. 725.465).


Sec. 725.462  Withdrawal of controversion of issues set for formal 
hearing; effect.

    A party may, on the record, withdraw his or her controversion of 
any or all issues set for hearing. If a party withdraws his or her 
controversion of all issues, the administrative law judge shall remand 
the case to the district director for the issuance of an appropriate 
order.


Sec. 725.463  Issues to be resolved at hearing; new issues.

    (a) Except as otherwise provided in this section, the hearing shall 
be confined to those contested issues which have been identified by the 
district director (see Sec. 725.421) or any other issue raised in 
writing before the district director.
    (b) An administrative law judge may consider a new issue only if 
such issue was not reasonably ascertainable by the parties at the time 
the claim was before the district director. Such new issue may be 
raised upon application of any party, or upon an administrative law 
judge's own motion, with notice to all parties, at any time after a 
claim has been transmitted by the district director to the Office of 
Administrative Law Judges and prior to decision by an administrative 
law judge. If a new issue is raised, the administrative law judge may, 
in his or her discretion, either remand the case to the district 
director with instructions for further proceedings, hear and resolve 
the new issue, or refuse to consider such new issue.
    (c) If a new issue is to be considered by the administrative law 
judge, a party may, upon request, be granted an appropriate 
continuance.


Sec. 725.464  Record of hearing.

    All hearings shall be open to the public and shall be mechanically 
or stenographically reported. All evidence upon which the 
administrative law judge relies for decision shall be contained in the 
transcript of testimony, either directly or by appropriate reference. 
All medical reports, exhibits, and any other pertinent document or 
record, either in whole or in material part, introduced as evidence, 
shall be marked for identification and incorporated into the record.


Sec. 725.465  Dismissals for cause.

    (a) The administrative law judge may, at the request of any party, 
or on his or her own motion, dismiss a claim:
    (1) Upon the failure of the claimant or his or her representative 
to attend a hearing without good cause;
    (2) Upon the failure of the claimant to comply with a lawful order 
of the administrative law judge; or
    (3) Where there has been a prior final adjudication of the claim or 
defense to the claim under the provisions of this subchapter and no new 
evidence is submitted (except as provided in part 727 of this 
subchapter; see Sec. 725.4(d)).
    (b) A party who is not a proper party to the claim (see 
Sec. 725.360) shall be dismissed by the administrative law judge. The 
administrative law judge shall not dismiss any operator named as a 
potentially liable operator pursuant to Sec. 725.407, except upon the 
motion or written agreement of the Director.
    (c) In any case where a dismissal of a claim, defense, or party is 
sought, the administrative law judge shall issue an order to show cause 
why the dismissal should not be granted and afford all parties a 
reasonable time to respond to such order. After the time for response 
has expired, the administrative law judge shall take such action as is 
appropriate to rule on the dismissal, which may include an order 
dismissing the claim, defense or party.
    (d) No claim shall be dismissed in a case with respect to which 
payments prior to final adjudication have been made to the claimant in 
accordance with Sec. 725.522, except upon the motion or written 
agreement of the Director.


Sec. 725.466  Order of dismissal.

    (a) An order dismissing a claim shall be served on the parties in 
accordance with Sec. 725.478. The dismissal of a claim shall have the 
same effect as a decision and order disposing of the claim on its 
merits, except as provided in paragraph (b) of this section. Such order 
shall advise the parties of their right to request review by the 
Benefits Review Board.
    (b) Where the Chief Administrative Law Judge or the presiding 
administrative law judge issues a decision and order dismissing the 
claim after a show cause proceeding, the district director shall 
terminate any payments being made to the claimant under Sec. 725.522, 
and the order of dismissal shall, if appropriate, order the claimant to 
reimburse the fund for all benefits paid to the claimant.


Sec. 725.475  Termination of hearings.

    Hearings are officially terminated when all the evidence has been 
received, witnesses heard, pleadings and briefs submitted to the 
administrative law judge, and the transcript of the proceedings has 
been printed and delivered to the administrative law judge.


Sec. 725.476  Issuance of decision and order.

    Within 20 days after the official termination of the hearing (see 
Sec. 725.475), the administrative law judge shall issue a decision and 
order with respect to the claim making an award to the claimant, 
rejecting the claim, or taking such other action as is appropriate.


Sec. 725.477  Form and contents of decision and order.

    (a) Orders adjudicating claims for benefits shall be designated by 
the term ``decision and order'' or ``supplemental decision and order'' 
as appropriate, followed by a descriptive phrase designating the 
particular type of order, such as ``award of benefits,'' ``rejection of 
claim,'' ``suspension of benefits,'' ``modification of award.''
    (b) A decision and order shall contain a statement of the basis of 
the order, the names of the parties, findings of fact, conclusions of 
law, and an award, rejection or other appropriate paragraph containing 
the action of the administrative law judge, his or her signature and 
the date of issuance. A decision and order shall be based upon the 
record made before the administrative law judge.


Sec. 725.478  Filing and service of decision and order.

    On the date of issuance of a decision and order under Sec. 725.477, 
the administrative law judge shall serve the decision and order on all 
parties to the claim by certified mail. On the same date, the original 
record of the claim shall be sent to the DCMWC in Washington, D.C. Upon 
receipt by the DCMWC, the decision and order shall be considered to be 
filed in the office of the district director, and shall become 
effective on that date.


Sec. 725.479  Finality of decisions and orders.

    (a) A decision and order shall become effective when filed in the 
office of the district director (see Sec. 725.478), and unless 
proceedings for suspension or setting aside of such order are 
instituted within 30 days of such filing, the order shall become final 
at the expiration of

[[Page 55046]]

the 30th day after such filing (see Sec. 725.481).
    (b) Any party may, within 30 days after the filing of a decision 
and order under Sec. 725.478, request a reconsideration of such 
decision and order by the administrative law judge. The procedures to 
be followed in the reconsideration of a decision and order shall be 
determined by the administrative law judge.
    (c) The time for appeal to the Benefits Review Board shall be 
suspended during the consideration of a request for reconsideration. 
After the administrative law judge has issued and filed a denial of the 
request for reconsideration, or a revised decision and order in 
accordance with this part, any dissatisfied party shall have 30 days 
within which to institute proceedings to set aside the decision and 
order on reconsideration.
    (d) Regardless of any defect in service, actual receipt of the 
decision is sufficient to commence the 30-day period for requesting 
reconsideration or appealing the decision.


Sec. 725.480  Modification of decisions and orders.

    A party who is dissatisfied with a decision and order which has 
become final in accordance with Sec. 725.479 may request a modification 
of the decision and order if the conditions set forth in Sec. 725.310 
are met.


Sec. 725.481  Right to appeal to the Benefits Review Board.

    Any party dissatisfied with a decision and order issued by an 
administrative law judge may, before the decision and order becomes 
final (see Sec. 725.479), appeal the decision and order to the Benefits 
Review Board. A notice of appeal shall be filed with the Board. 
Proceedings before the Board shall be conducted in accordance with part 
802 of this title.


Sec. 725.482  Judicial review.

    (a) Any person adversely affected or aggrieved by a final order of 
the Benefits Review Board may obtain a review of that order in the U.S. 
court of appeals for the circuit in which the injury occurred by filing 
in such court within 60 days following the issuance of such Board order 
a written petition praying that the order be modified or set aside. The 
payment of the amounts required by an award shall not be stayed pending 
final decision in any such proceeding unless ordered by the court. No 
stay shall be issued unless the court finds that irreparable injury 
would otherwise ensue to an operator or carrier.
    (b) The Director, Office of Workers' Compensation Program, as 
designee of the Secretary of Labor responsible for the administration 
and enforcement of the Act, shall be considered the proper party to 
appear and present argument on behalf of the Secretary of Labor in all 
review proceedings conducted pursuant to this part and the Act, either 
as petitioner or respondent.


Sec. 725.483  Costs in proceedings brought without reasonable grounds.

    If a United States court having jurisdiction of proceedings 
regarding any claim or final decision and order, determines that the 
proceedings have been instituted or continued before such court without 
reasonable ground, the costs of such proceedings shall be assessed 
against the party who has so instituted or continued such proceedings.

Subpart G--Responsible Coal Mine Operators

General Provisions


Sec. 725.490  Statutory provisions and scope.

    (a) One of the major purposes of the black lung benefits amendments 
of 1977 was to provide a more effective means of transferring the 
responsibility for the payment of benefits from the Federal government 
to the coal industry with respect to claims filed under this part. In 
furtherance of this goal, a Black Lung Disability Trust Fund financed 
by the coal industry was established by the Black Lung Benefits Revenue 
Act of 1977. The primary purpose of the Fund is to pay benefits with 
respect to all claims in which the last coal mine employment of the 
miner on whose account the claim was filed occurred before January 1, 
1970. With respect to most claims in which the miner's last coal mine 
employment occurred after January 1, 1970, individual coal mine 
operators will be liable for the payment of benefits. The 1981 
amendments to the Act relieved individual coal mine operators from the 
liability for payment of certain special claims involving coal mine 
employment on or after January 1, 1970, where the claim was previously 
denied and subsequently approved under section 435 of the Act. See 
Sec. 725.496 for a detailed description of these special claims. Where 
no such operator exists or the operator determined to be liable is in 
default in any case, the fund shall pay the benefits due and seek 
reimbursement as is appropriate. See also Sec. 725.420 for the fund's 
role in the payment of interim benefits in certain contested cases. In 
addition, the Black Lung Benefits Reform Act of 1977 amended certain 
provisions affecting the scope of coverage under the Act and describing 
the effects of particular corporate transactions on the liability of 
operators.
    (b) The provisions of this subpart define the term ``operator'' and 
prescribe the manner in which the identity of an operator which may be 
liable for the payment of benefits--referred to herein as a 
``responsible operator''--will be determined.


Sec. 725.491  Operator defined.

    (a) For purposes of this part, the term ``operator'' shall include:
    (1) Any owner, lessee, or other person who operates, controls, or 
supervises a coal mine, or any independent contractor performing 
services or construction at such mine; or
    (2) Any other person who:
    (i) Employs an individual in the transportation of coal or in coal 
mine construction in or around a coal mine, to the extent such 
individual was exposed to coal mine dust as a result of such employment 
(see Sec. 725.202);
    (ii) In accordance with the provisions of Sec. 725.492, may be 
considered a successor operator; or
    (iii) Paid wages or a salary, or provided other benefits, to an 
individual in exchange for work as a miner (see Sec. 725.202).
    (b) The terms ``owner,'' ``lessee,'' and ``person'' shall include 
any individual, partnership, association, corporation, firm, subsidiary 
of a corporation, or other organization, as appropriate, except that an 
officer of a corporation shall not be considered an ``operator'' for 
purposes of this part. Following the issuance of an order awarding 
benefits against a corporation that has not secured its liability for 
benefits in accordance with section 423 of the Act and Sec. 726.4, such 
order may be enforced against the president, secretary, or treasurer of 
the corporation in accordance with subpart I of this part.
    (c) The term ``independent contractor'' shall include any person 
who contracts to perform services. Such contractor's status as an 
operator shall not be contingent upon the amount or percentage of its 
work or business related to activities in or around a mine, nor upon 
the number or percentage of its employees engaged in such activities.
    (d) For the purposes of determining whether a person is or was an 
operator that may be found liable for the payment of benefits under 
this part, there shall be a rebuttable presumption that during the 
course of an individual's employment with such employer, such 
individual was regularly and continuously exposed to coal mine dust 
during the course of employment. The presumption may be rebutted by a 
showing that the employee was not

[[Page 55047]]

exposed to coal mine dust for significant periods during such 
employment.
    (e) The operation, control, or supervision referred to in paragraph 
(a)(1) of this section may be exercised directly or indirectly. Thus, 
for example, where a coal mine is leased, and the lease empowers the 
lessor to make decisions with respect to the terms and conditions under 
which coal is to be extracted or prepared, such as, but not limited to, 
the manner of extraction or preparation or the amount of coal to be 
produced, the lessor may be considered an operator. Similarly, any 
parent entity or other controlling business entity may be considered an 
operator for purposes of this part, regardless of the nature of its 
business activities.
    (f) Neither the United States, nor any State, nor any 
instrumentality or agency of the United States or any State, shall be 
considered an operator.


Sec. 725.492  Successor operator defined.

    (a) Any person who, on or after January 1, 1970, acquired a mine or 
mines, or substantially all of the assets thereof, from a prior 
operator, or acquired the coal mining business of such prior operator, 
or substantially all of the assets thereof, shall be considered a 
``successor operator'' with respect to any miners previously employed 
by such prior operator.
    (b) The following transactions shall also be deemed to create 
successor operator liability:
    (1) If an operator ceases to exist by reason of a reorganization 
which involves a change in identity, form, or place of business or 
organization, however effected;
    (2) If an operator ceases to exist by reason of a liquidation into 
a parent or successor corporation; or
    (3) If an operator ceases to exist by reason of a sale of 
substantially all its assets, or as a result of merger, consolidation, 
or division.
    (c) In any case in which a transaction specified in paragraph (b), 
or substantially similar to a transaction specified in paragraph (b) 
took place, the resulting entity shall be considered a ``successor 
operator'' with respect to any miners previously employed by such prior 
operator.
    (d) This section shall not be construed to relieve a prior operator 
of any liability if such prior operator meets the conditions set forth 
in Sec. 725.494. If the prior operator does not meet the conditions set 
forth in Sec. 725.494, the following provisions shall apply:
    (1) In any case in which a prior operator transferred a mine or 
mines, or substantially all of the assets thereof, to a successor 
operator, or sold its coal mining business or substantially all of the 
assets thereof, to a successor operator, and then ceased to exist, 
within the terms of paragraph (b), the successor operator as identified 
in paragraph (a) shall be primarily liable for the payment of benefits 
to any miners previously employed by such prior operator.
    (2) In any case in which a prior operator transferred mines, or 
substantially all of the assets thereof, to more than one successor 
operator, the successor operator that most recently acquired a mine or 
mines or assets from the prior operator shall be primarily liable for 
the payment of benefits to any miners previously employed by such prior 
operator.
    (3) In any case in which a mine or mines, or substantially all the 
assets thereof, have been transferred more than once, the successor 
operator that most recently acquired such mine or mines or assets shall 
be primarily liable for the payment of benefits to any miners 
previously employed by the original prior operator. If the most recent 
successor operator does not meet the criteria for a potentially liable 
operator set forth in Sec. 725.494, the next most recent successor 
operator shall be liable.
    (e) An ``acquisition,'' for purposes of this section, shall include 
any transaction by which title to the mine or mines, or substantially 
all of the assets thereof, or the right to extract or prepare coal at 
such mine or mines, becomes vested in a person other than the prior 
operator.


Sec. 725.493   Employment relationship defined.

    (a)(1) In determining the identity of a responsible operator under 
this part, the terms ``employ'' and ``employment'' shall be construed 
as broadly as possible, and shall include any relationship under which 
an operator retains the right to direct, control, or supervise the work 
performed by a miner, or any other relationship under which an operator 
derives a benefit from the work performed by a miner. Any individuals 
who participate with one or more persons in the mining of coal, such as 
owners, proprietors, partners, and joint venturers, whether they are 
compensated by wages, salaries, piece rates, shares, profits, or by any 
other means, shall be deemed employees. It is the specific intention of 
this paragraph to disregard any financial arrangement or business 
entity devised by the actual owners or operators of a coal mine or coal 
mine-related enterprise to avoid the payment of benefits to miners who, 
based upon the economic reality of their relationship to this 
enterprise, are, in fact, employees of the enterprise.
    (2) The payment of wages or salary shall be prima facie evidence of 
the right to direct, control, or supervise an individual's work. The 
Department intends that where the operator who paid a miner's wages or 
salary meets the criteria for a potentially liable operator set forth 
in Sec. 725.494, that operator shall be primarily liable for the 
payment of any benefits due the miner as a result of such employment. 
The absence of such payment, however, will not negate the existence of 
an employment relationship. Thus, the Department also intends that 
where the person who paid a miner's wages may not be considered a 
potentially liable operator, any other operator who retained the right 
to direct, control or supervise the work performed by the miner, or who 
benefitted from such work, may be considered a potentially liable 
operator.
    (b) This paragraph contains examples of relationships that shall be 
considered employment relationships for purposes of this part. The list 
is not intended to be exclusive.
    (1) In any case in which an operator may be considered a successor 
operator, as determined in accordance with Sec. 725.492, any employment 
with a prior operator shall also be deemed to be employment with the 
successor operator. In a case in which the miner was not independently 
employed by the successor operator, the prior operator shall remain 
primarily liable for the payment of any benefits based on the miner's 
employment with the prior operator. In a case in which the miner was 
independently employed by the successor operator after the transaction 
giving rise to successor operator liability, the successor operator 
shall be primarily liable for the payment of any benefits.
    (2) In any case in which the operator which directed, controlled or 
supervised the miner is no longer in business and such operator was a 
subsidiary of a parent company, a member of a joint venture, a partner 
in a partnership, or was substantially owned or controlled by another 
business entity, such parent entity or other member of a joint venture 
or partner or controlling business entity may be considered the 
employer of any employees of such operator.
    (3) In any claim in which the operator which directed, controlled 
or supervised the miner is a lessee, the lessee shall be considered 
primarily liable for the claim. The liability of the lessor may be 
established only after it has been determined that the lessee is unable 
to provide for the payment of

[[Page 55048]]

benefits to a successful claimant. In any case involving the liability 
of a lessor for a claim arising out of employment with a lessee, any 
determination of lessor liability shall be made on the basis of the 
facts present in the case in accordance with the following 
considerations:
    (i) Where a coal mine is leased, and the lease empowers the lessor 
to make decisions with respect to the terms and conditions under which 
coal is to be extracted or prepared, such as, but not limited to, the 
manner of extraction or preparation or the amount of coal to be 
produced, the lessor shall be considered the employer of any employees 
of the lessee.
    (ii) Where a coal mine is leased to a self-employed operator, the 
lessor shall be considered the employer of such self-employed operator 
and its employees if the lease or agreement is executed or renewed 
after August 18, 1978 and such lease or agreement does not require the 
lessee to guarantee the payment of benefits which may be required under 
this part and part 726 of this subchapter.
    (iii) Where a lessor previously operated a coal mine, it may be 
considered an operator with respect to employees of any lessee of such 
mine, particularly where the leasing arrangement was executed or 
renewed after August 18, 1978 and does not require the lessee to secure 
benefits provided by the Act.
    (4) A self-employed operator, depending upon the facts of the case, 
may be considered an employee of any other operator, person, or 
business entity which substantially controls, supervises, or is 
financially responsible for the activities of the self-employed 
operator.


Sec. 725.494  Potentially liable operators.

    An operator may be considered a ``potentially liable operator'' 
with respect to a claim for benefits under this part if each of the 
following conditions is met:
    (a) The miner's disability or death arose at least in part out of 
employment in or around a mine or other facility during a period when 
the mine or facility was operated by such operator, or by a person with 
respect to which the operator may be considered a successor operator. 
For purposes of this section, there shall be a rebuttable presumption 
that the miner's disability or death arose in whole or in part out of 
his or her employment with such operator. Unless this presumption is 
rebutted, the responsible operator shall be liable to pay benefits to 
the claimant on account of the disability or death of the miner in 
accordance with this part. A miner's pneumoconiosis, or disability or 
death therefrom, shall be considered to have arisen in whole or in part 
out of work in or around a mine if such work caused, contributed to or 
aggravated the progression or advancement of a miner's loss of ability 
to perform his or her regular coal mine employment or comparable 
employment.
    (b) The operator, or any person with respect to which the operator 
may be considered a successor operator, was an operator for any period 
after June 30, 1973.
    (c) The miner was employed by the operator, or any person with 
respect to which the operator may be considered a successor operator, 
for a cumulative period of not less than one year 
(Sec. 725.101(a)(32)).
    (d) The miner's employment with the operator, or any person with 
respect to which the operator may be considered a successor operator, 
included at least one working day (Sec. 725.101(a)(32)) after December 
31, 1969.
    (e) The operator is capable of assuming its liability for the 
payment of continuing benefits under this part. An operator will be 
deemed capable of assuming its liability for a claim if one of the 
following three conditions is met:
    (1) The operator obtained a policy or contract of insurance under 
section 423 of the Act and part 726 of this subchapter that covers the 
claim, except that such policy shall not be considered sufficient to 
establish the operator's capability of assuming liability if the 
insurance company has been declared insolvent and its obligations for 
the claim are not otherwise guaranteed;
    (2) The operator qualified as a self-insurer under section 423 of 
the Act and part 726 of this subchapter during the period in which the 
miner was last employed by the operator, provided that the operator 
still qualifies as a self-insurer or the security given by the operator 
pursuant to Sec. 726.104(b) is sufficient to secure the payment of 
benefits in the event the claim is awarded; or
    (3) The operator possesses sufficient assets to secure the payment 
of benefits in the event the claim is awarded in accordance with 
Sec. 725.606.


Sec. 725.495  Criteria for determining a responsible operator.

    (a)(1) The operator responsible for the payment of benefits in a 
claim adjudicated under this part (the ``responsible operator'') shall 
be the potentially liable operator, as determined in accordance with 
Sec. 725.494, that most recently employed the miner.
    (2) If more than one potentially liable operator may be deemed to 
have employed the miner most recently, then the liability for any 
benefits payable as a result of such employment shall be assigned as 
follows:
    (i) First, to the potentially liable operator that directed, 
controlled, or supervised the miner;
    (ii) Second, to any potentially liable operator that may be 
considered a successor operator with respect to miners employed by the 
operator identified in paragraph (a)(2)(i) of this section; and
    (iii) Third, to any other potentially liable operator which may be 
deemed to have been the miner's most recent employer pursuant to 
Sec. 725.493.
    (3) If the operator that most recently employed the miner may not 
be considered a potentially liable operator, as determined in 
accordance with Sec. 725.494, the responsible operator shall be the 
potentially liable operator that next most recently employed the miner. 
Any potentially liable operator that employed the miner for at least 
one day after December 31, 1969 may be deemed the responsible operator 
if no more recent employer may be considered a potentially liable 
operator.
    (b) Except as provided in this section and Sec. 725.408(a)(3), with 
respect to the adjudication of the identity of a responsible operator, 
the Director shall bear the burden of proving that the responsible 
operator initially found liable for the payment of benefits pursuant to 
Sec. 725.410 (the ``designated responsible operator'') is a potentially 
liable operator. It shall be presumed, in the absence of evidence to 
the contrary, that the designated responsible operator is capable of 
assuming liability for the payment of benefits in accordance with 
Sec. 725.494(e).
    (c) The designated responsible operator shall bear the burden of 
proving either:
    (1) That it does not possess sufficient assets to secure the 
payment of benefits in accordance with Sec. 725.606; or
    (2) That it is not the potentially liable operator that most 
recently employed the miner. Such proof must include evidence that the 
miner was employed as a miner after he or she stopped working for the 
designated responsible operator and that the person by whom he or she 
was employed is a potentially liable operator within the meaning of 
Sec. 725.494. In order to establish that a more recent employer is a 
potentially liable operator, the designated responsible operator must 
demonstrate that the more recent employer possesses sufficient assets 
to secure the payment of benefits in accordance with

[[Page 55049]]

Sec. 725.606. The designated responsible operator may satisfy its 
burden by presenting evidence that the owner, if the more recent 
employer is a sole proprietorship; the partners, if the more recent 
employer is a partnership; or the president, secretary, and treasurer, 
if the more recent employer is a corporation that failed to secure the 
payment of benefits pursuant to part 726 of this subchapter, possess 
assets sufficient to secure the payment of benefits, provided such 
assets may be reached in a proceeding brought under subpart I of this 
part.
    (d) In any case referred to the Office of Administrative Law Judges 
pursuant to Sec. 725.421 in which the responsible operator initially 
found liable for the payment of benefits pursuant to Sec. 725.410 is 
not the operator that most recently employed the miner, the record 
shall contain a statement from the district director explaining the 
reasons for such initial finding. If the reasons include the most 
recent employer's failure to meet the conditions of Sec. 725.494(e), 
the record shall also contain a statement that the Office has searched 
the files it maintains pursuant to part 726, and that the Office has no 
record of insurance coverage for that employer, or of authorization to 
self-insure, that meets the conditions of Sec. 725.494(e)(1) or (e)(2). 
Such a statement shall be prima facie evidence that the most recent 
employer is not financially capable of assuming its liability for a 
claim. In the absence of such a statement, it shall be presumed that 
the most recent employer is financially capable of assuming its 
liability for a claim.


Sec. 725.496  Special claims transferred to the fund.

    (a) The 1981 amendments to the Act amended section 422 of the Act 
and transferred liability for payment of certain special claims from 
operators and carriers to the fund. These provisions apply to claims 
which were denied before March 1, 1978, and which have been or will be 
approved in accordance with section 435 of the Act.
    (b) Section 402(i) of the Act defines three classes of denied 
claims subject to the transfer provisions:
    (1) Claims filed with and denied by the Social Security 
Administration before March 1, 1978;
    (2) Claims filed with the Department of Labor in which the claimant 
was notified by the Department of an administrative or informal denial 
before March 1, 1977, and in which the claimant did not within one year 
of such notification either:
    (i) Request a hearing; or
    (ii) Present additional evidence; or
    (iii) Indicate an intention to present additional evidence; or
    (iv) Request a modification or reconsideration of the denial on the 
ground of a change in conditions or because of a mistake in a 
determination of fact;
    (3) Claims filed with the Department of Labor and denied under the 
law in effect prior to the enactment of the Black Lung Benefits Reform 
Act of 1977, that is, before March 1, 1978, following a formal hearing 
before an administrative law judge or administrative review before the 
Benefits Review Board or review before a United States Court of 
Appeals.
    (c) Where more than one claim was filed with the Social Security 
Administration and/or the Department of Labor prior to March 1, 1978, 
by or on behalf of a miner or a surviving dependent of a miner, unless 
such claims were required to be merged by the agency's regulations, the 
procedural history of each such claim must be considered separately to 
determine whether the claim is subject to the transfer of liability 
provisions.
    (d) For a claim filed with and denied by the Social Security 
Administration prior to March 1, 1978, to come within the transfer 
provisions, such claim must have been or must be approved under the 
provisions of section 435 of the Act. No claim filed with and denied by 
the Social Security Administration is subject to the transfer of 
liability provisions unless a request was made by or on behalf of the 
claimant for review of such denied claim under section 435. Such review 
must have been requested by the filing of a valid election card or 
other equivalent document with the Social Security Administration in 
accordance with section 435(a) and its implementing regulations at 20 
CFR 410.700 through 410.707.
    (e) Where a claim filed with the Department of Labor prior to March 
1, 1977, was subjected to repeated administrative or informal denials, 
the last such denial issued during the pendency of the claim determines 
whether the claim is subject to the transfer of liability provisions.
    (f) Where a miner's claim comes within the transfer of liability 
provisions of the 1981 amendments the fund is also liable for the 
payment of any benefits to which the miner's dependent survivors are 
entitled after the miner's death. However, if the survivor's 
entitlement was established on a separate claim not subject to the 
transfer of liability provisions prior to approval of the miner's claim 
under section 435, the party responsible for the payment of such 
survivors' benefits shall not be relieved of that responsibility 
because the miner's claim was ultimately approved and found subject to 
the transfer of liability provisions.


Sec. 725.497  Procedures in special claims transferred to the fund.

    (a) General. It is the purpose of this section to define procedures 
to expedite the handling and disposition of claims affected by the 
benefit liability transfer provisions of Section 205 of the Black Lung 
Benefits Amendments of 1981.
    (b) Action by the Department. The OWCP shall, in accordance with 
the criteria contained in Sec. 725.496, review each claim which is or 
may be affected by the provisions of Section 205 of the Black Lung 
Benefits Amendments of 1981. Any party to a claim, adjudication 
officer, or adjudicative body may request that such a review be 
conducted and that the record be supplemented with any additional 
documentation necessary for an informed consideration of the 
transferability of the claim. Where the issue of the transferability of 
the claim can not be resolved by agreement of the parties and the 
evidence of record is not sufficient for a resolution of the issue, the 
hearing record may be reopened or the case remanded for the development 
of the additional evidence concerning the procedural history of the 
claim necessary to such resolution. Such determinations shall be made 
on an expedited basis.
    (c) Dismissal of operators. If it is determined that a coal mine 
operator or insurance carrier which previously participated in the 
consideration or adjudication of any claim, may no longer be found 
liable for the payment of benefits to the claimant by reason of section 
205 of the Black Lung Benefits Amendments of 1981, such operator or 
carrier shall be promptly dismissed as a party to the claim. The 
dismissal of an operator or carrier shall be concluded at the earliest 
possible time and in no event shall an operator or carrier participate 
as a necessary party in any claim for which only the fund may be 
liable.
    (d) Procedure following dismissal of an operator. After it has been 
determined that an operator or carrier must be dismissed as a party in 
any claim in accordance with this section, the Director shall take such 
action as is authorized by the Act to bring about the proper and 
expeditious resolution of the claim in light of all relevant medical 
and other evidence. Action to be taken in this regard by the Director 
may include, but is not limited to, the assignment of the claim to the 
Black

[[Page 55050]]

Lung Disability Trust Fund for the payment of benefits, the 
reimbursement of benefits previously paid by an operator or carrier if 
appropriate, the defense of the claim on behalf of the fund, or 
proceedings authorized by Sec. 725.310.
    (e) Any claimant whose claim has been subsequently denied in a 
modification proceeding will be entitled to expedited review of the 
modification decision. Where a formal hearing was previously held, the 
claimant may waive his right to a further hearing and ask that a 
decision be made on the record of the prior hearing, as supplemented by 
any additional documentary evidence which the parties wish to introduce 
and briefs of the parties, if desired. In any case in which the 
claimant waives his right to a second hearing, a decision and order 
must be issued within 30 days of the date upon which the parties agree 
the record has been completed.

Subpart H--Payment of Benefits

General Provisions


Sec. 725.501  Payment provisions generally.

    The provisions of this subpart govern the payment of benefits to 
claimants whose claims are approved for payment under section 415 and 
part C of title IV of the Act or approved after review under section 
435 of the Act and part 727 of this subchapter (see Sec. 725.4(d)).


Sec. 725.502  When benefit payments are due; manner of payment.

    (a)(1) Except with respect to benefits paid by the fund pursuant to 
an initial determination issued in accordance with Sec. 725.418 (see 
Sec. 725.522), benefits under the Act shall be paid when they become 
due. Benefits shall be considered due after the issuance of an 
effective order requiring the payment of benefits by a district 
director, administrative law judge, Benefits Review Board, or court, 
notwithstanding the pendency of a motion for reconsideration before an 
administrative law judge or an appeal to the Board or court, except 
that benefits shall not be considered due where the payment of such 
benefits has been stayed by the Benefits Review Board or appropriate 
court. An effective order shall remain in effect unless it is vacated 
by an administrative law judge on reconsideration, or, upon review 
under section 21 of the LHWCA, by the Benefits Review Board or an 
appropriate court, or is superseded by an effective order issued 
pursuant to Sec. 725.310.
    (2) A proposed order issued by a district director pursuant to 
Sec. 725.418 becomes effective at the expiration of the thirtieth day 
thereafter if no party timely requests revision of the proposed 
decision and order or a hearing (see Sec. 725.419). An order issued by 
an administrative law judge becomes effective when it is filed in the 
office of the district director (see Sec. 725.479). An order issued by 
the Benefits Review Board shall become effective when it is issued. An 
order issued by a court shall become effective in accordance with the 
rules of the court.
    (b)(1) While an effective order requiring the payment of benefits 
remains in effect, monthly benefits, at the rates set forth in 
Sec. 725.520, shall be due on the fifteenth day of the month following 
the month for which the benefits are payable. For example, benefits 
payable for the month of January shall be due on the fifteenth day of 
February.
    (2) Within 30 days after the issuance of an effective order 
requiring the payment of benefits, the district director shall compute 
the amount of benefits payable for periods prior to the effective date 
of the order, in addition to any interest payable for such periods (see 
Sec. 725.608), and shall so notify the parties. Any computation made by 
the district director under this paragraph shall strictly observe the 
terms of the order. Benefits and interest payable for such periods 
shall be due on the thirtieth day following issuance of the district 
director's computation. A copy of the current table of applicable 
interest rates shall be attached.
    (c) Benefits are payable for monthly periods and shall be paid 
directly to an eligible claimant or his or her representative payee 
(see Sec. 725.510) beginning with the month during which eligibility 
begins. Benefits payments shall terminate with the month before the 
month during which eligibility terminates. If a claimant dies in the 
first month during which all requirements are met, benefits shall be 
paid for that month.


Sec. 725.503  Date from which benefits are payable.

    (a) In accordance with the provisions of section 6(a) of the 
Longshore Act as incorporated by section 422(a) of the Act, and except 
as provided in Sec. 725.504, the provisions of this section shall be 
applicable in determining the date from which benefits are payable to 
an eligible claimant for any claim filed after March 31, 1980. Except 
as provided in paragraph (d) of this section, the date from which 
benefits are payable for any claim approved under part 727 of this 
subchapter, shall be determined in accordance with Sec. 727.302 (see 
Sec. 725.4(d).
    (b) Miner's claim. In the case of a miner who is entitled to 
benefits, benefits are payable to such miner beginning with the month 
of onset of total disability due to pneumoconiosis arising out of coal 
mine employment. Where the evidence does not establish the month of 
onset, benefits shall be payable to such miner beginning with the month 
during which the claim was filed. In the case of a miner who filed a 
claim before January 1, 1982, benefits shall be payable to the miner's 
eligible survivor (if any) beginning with the month in which the miner 
died.
    (c) Survivor's claim. In the case of an eligible survivor, benefits 
shall be payable beginning with the month of the miner's death, or 
January 1, 1974, whichever is later.
    (d) If a claim is awarded pursuant to section 22 of the Longshore 
Act and Sec. 725.310, then the date from which benefits are payable 
shall be determined as follows:
    (1) Mistake in fact. The provisions of paragraphs (b) or (c) of 
this section, as applicable, shall govern the determination of the date 
from which benefits are payable.
    (2) Change in conditions. Benefits are payable to a miner beginning 
with the month of onset of total disability due to pneumoconiosis 
arising out of coal mine employment, provided that no benefits shall be 
payable for any month prior to the effective date of the most recent 
denial of the claim by a district director or administrative law judge. 
Where the evidence does not establish the month of onset, benefits 
shall be payable to such miner from the month in which the claimant 
requested modification.
    (e) In the case of a claim filed between July 1, 1973, and December 
31, 1973, benefits shall be payable as provided by this section, except 
to the extent prohibited by Sec. 727.303 (see Sec. 725.4(d)).
    (f) No benefits shall be payable with respect to a claim filed 
after December 31, 1973 (a part C claim), for any period of eligibility 
occurring before January 1, 1974.
    (g) Each decision and order awarding benefits shall indicate the 
month from which benefits are payable to the eligible claimant.


Sec. 725.504  Payments to a claimant employed as a miner.

    (a) In the case of a claimant who is employed as a miner (see 
Sec. 725.202) at the time of a final determination of such miner's 
eligibility for benefits, no benefits shall be payable unless:
    (1) The miner's eligibility is established under section 411(c)(3) 
of the Act; or

[[Page 55051]]

    (2) The miner terminates his or her coal mine employment within 1 
year from the date of the final determination of the claim.
    (b) If the eligibility of a working miner is established under 
section 411(c)(3) of the Act, benefits shall be payable as is otherwise 
provided in this part. If eligibility cannot be established under 
section 411(c)(3), and the miner continues to be employed as a miner in 
any capacity for a period of less than 1 year after a final 
determination of the claim, benefits shall be payable beginning with 
the month during which the miner ends his or her coal mine employment. 
If the miner's employment continues for more than 1 year after a final 
determination of eligibility, such determination shall be considered a 
denial of benefits on the basis of the miner's continued employment, 
and the miner may seek benefits only as provided in Sec. 725.310, if 
applicable, or by filing a new claim under this part. The provisions of 
subparts E and F of this part shall be applicable to claims considered 
under this section as is appropriate.
    (c) In any case where the miner returns to coal mine or comparable 
and gainful work, the payments to such miner shall be suspended and no 
benefits shall be payable (except as provided in section 411(c)(3) of 
the Act) for the period during which the miner continues to work. If 
the miner again terminates employment, the district director may 
require the miner to submit to further medical examination before 
authorizing the payment of benefits.


Sec. 725.505  Payees.

    Benefits may be paid, as appropriate, to a beneficiary, to a 
qualified dependent, or to a representative authorized under this 
subpart to receive payments on behalf of such beneficiary or dependent.


Sec. 725.506  Payment on behalf of another; ``legal guardian'' defined.

    Benefits are paid only to the beneficiary, his or her 
representative payee (see Sec. 725.510) or his or her legal guardian. 
As used in this section, ``legal guardian'' means an individual who has 
been appointed by a court of competent jurisdiction or otherwise 
appointed pursuant to law to assume control of and responsibility for 
the care of the beneficiary, the management of his or her estate, or 
both.


Sec. 725.507  Guardian for minor or incompetent.

    An adjudication officer may require that a legal guardian or 
representative be appointed to receive benefit payments payable to any 
person who is mentally incompetent or a minor and to exercise the 
powers granted to, or to perform the duties otherwise required of such 
person under the Act.


Sec. 725.510  Representative payee.

    (a) If the district director determines that the best interests of 
a beneficiary are served thereby, the district director may certify the 
payment of such beneficiary's benefits to a representative payee.
    (b) Before any amount shall be certified for payment to any 
representative payee for or on behalf of a beneficiary, such 
representative payee shall submit to the district director such 
evidence as may be required of his or her relationship to, or his or 
her responsibility for the care of, the beneficiary on whose behalf 
payment is to be made, or of his or her authority to receive such a 
payment. The district director may, at any time thereafter, require 
evidence of the continued existence of such relationship, 
responsibility, or authority. If a person requesting representative 
payee status fails to submit the required evidence within a reasonable 
period of time after it is requested, no further payments shall be 
certified to him or her on behalf of the beneficiary unless the 
required evidence is thereafter submitted.
    (c) All benefit payments made to a representative payee shall be 
available only for the use and benefit of the beneficiary, as defined 
in Sec. 725.511.


Sec. 725.511  Use and benefit defined.

    (a) Payments certified to a representative payee shall be 
considered as having been applied for the use and benefit of the 
beneficiary when they are used for the beneficiary's current 
maintenance--i.e., to replace current income lost because of the 
disability of the beneficiary. Where a beneficiary is receiving care in 
an institution, current maintenance shall include the customary charges 
made by the institution and charges made for the current and 
foreseeable needs of the beneficiary which are not met by the 
institution.
    (b) Payments certified to a representative payee which are not 
needed for the current maintenance of the beneficiary, except as they 
may be used under Sec. 725.512, shall be conserved or invested on the 
beneficiary's behalf. Preferred investments are U.S. savings bonds 
which shall be purchased in accordance with applicable regulations of 
the U.S. Treasury Department (31 CFR part 315). Surplus funds may also 
be invested in accordance with the rules applicable to investment of 
trust estates by trustees. For example, surplus funds may be deposited 
in an interest or dividend bearing account in a bank or trust company 
or in a savings and loan association if the account is either federally 
insured or is otherwise insured in accordance with State law 
requirements. Surplus funds deposited in an interest or dividend 
bearing account in a bank or trust company or in a savings and loan 
association must be in a form of account which clearly shows that the 
representative payee has only a fiduciary, and not a personal, interest 
in the funds. The preferred forms of such accounts are as follows:

Name of beneficiary----------------------------------------------------
by (Name of representative payee) representative payee,
or (Name of beneficiary)
by (Name of representative payee) trustee,

    U.S. savings bonds purchased with surplus funds by a 
representative payee for an incapacitated adult beneficiary should 
be registered as follows: (Name of beneficiary) (Social Security 
No.), for whom (Name of payee) is representative payee for black 
lung benefits.


Sec. 725.512  Support of legally dependent spouse, child, or parent.

    If current maintenance needs of a beneficiary are being reasonably 
met, a relative or other person to whom payments are certified as 
representative payee on behalf of the beneficiary may use part of the 
payments so certified for the support of the legally dependent spouse, 
a legally dependent child, or a legally dependent parent of the 
beneficiary.


Sec. 725.513  Accountability; transfer.

    (a) The district director may require a representative payee to 
submit periodic reports including a full accounting of the use of all 
benefit payments certified to a representative payee. If a requested 
report or accounting is not submitted within the time allowed, the 
district director shall terminate the certification of the 
representative payee and thereafter payments shall be made directly to 
the beneficiary. A certification which is terminated under this section 
may be reinstated for good cause, provided that all required reports 
are supplied to the district director.
    (b) A representative payee who has conserved or invested funds from 
payments under this part shall, upon the direction of the district 
director, transfer any such funds (including interest) to a successor 
payee appointed by the district director or, at the option of the 
district director, shall transfer such funds to the Office for

[[Page 55052]]

recertification to a successor payee or the beneficiary.


Sec. 725.514  Certification to dependent of augmentation portion of 
benefit.

    (a) If the basic benefit of a miner or of a surviving spouse is 
augmented because of one or more dependents, and it appears to the 
district director that the best interests of such dependent would be 
served thereby, or that the augmented benefit is not being used for the 
use and benefit (as defined in this subpart) of the augmentee, the 
district director may certify payment of the amount of such 
augmentation (to the extent attributable to such dependent) to such 
dependent directly, or to a legal guardian or a representative payee 
for the use and benefit of such dependent.
    (b) Any request to the district director to certify separate 
payment of the amount of an augmentation in accordance with paragraph 
(a) of this section shall be in writing on such form and in accordance 
with such instructions as are prescribed by the Office.
    (c) The district director shall specify the terms and conditions of 
any certification authorized under this section and may terminate any 
such certification where appropriate.
    (d) Any payment made under this section, if otherwise valid under 
the Act, is a complete settlement and satisfaction of all claims, 
rights, and interests in and to such payment, except that such payment 
shall not be construed to abridge the rights of any party to recoup any 
overpayment made.


Sec. 725.515  Assignment and exemption from claims of creditors.

    (a) Except as provided by the Act and this part, no assignment, 
release, or commutation of benefits due or payable under this part by a 
responsible operator shall be valid, and all benefits shall be exempt 
from claims of creditors and from levy, execution, and attachment or 
other remedy or recovery or collection of a debt, which exemption may 
not be waived.
    (b) Notwithstanding any other provision of law, benefits due from, 
or payable by, the Black Lung Disability Trust Fund under the Act and 
this part to a claimant shall be subject to legal process brought for 
the enforcement against the claimant of his or her legal obligations to 
provide child support or make alimony payments to the same extent as if 
the fund was a private person.

Benefit Rates


Sec. 725.520  Computation of benefits.

    (a) Basic rate. The amount of benefits payable to a beneficiary for 
a month is determined, in the first instance, by computing the ``basic 
rate.'' The basic rate is equal to 37\1/2\ percent of the monthly pay 
rate for Federal employees in GS-2, step 1. That rate for a month is 
determined by:
    (1) Ascertaining the lowest annual rate of pay (step 1) for Grade 
GS-2 of the General Schedule applicable to such month (see 5 U.S.C. 
5332);
    (2) Ascertaining the monthly rate thereof by dividing the amount 
determined in paragraph (a)(1) of this section by 12; and
    (3) Ascertaining the basic rate under the Act by multiplying the 
amount determined in paragraph (a)(2) of this section by 0.375 (that 
is, by 37\1/2\ percent).
    (b) Basic benefit. When a miner or surviving spouse is entitled to 
benefits for a month for which he or she has no dependents who qualify 
under this part and when a surviving child of a miner or spouse, or a 
parent, brother, or sister of a miner, is entitled to benefits for a 
month for which he or she is the only beneficiary entitled to benefits, 
the amount of benefits to which such beneficiary is entitled is equal 
to the basic rate as computed in accordance with this section (raised, 
if not a multiple of 10 cents, to the next high multiple of 10 cents). 
This amount is referred to as the ``basic benefit.''
    (c) Augmented benefit. (1) When a miner or surviving spouse is 
entitled to benefits for a month for which he or she has one or more 
dependents who qualify under this part, the amount of benefits to which 
such miner or surviving spouse is entitled is increased. This increase 
is referred to as an ``augmentation.''
    (2) The benefits of a miner or surviving spouse are augmented to 
take account of a particular dependent beginning with the first month 
in which such dependent satisfies the conditions set forth in this 
part, and continues to be augmented through the month before the month 
in which such dependent ceases to satisfy the conditions set forth in 
this part, except in the case of a child who qualifies as a dependent 
because he or she is a student. In the latter case, such benefits 
continue to be augmented through the month before the first month 
during no part of which he or she qualifies as a student.
    (3) The basic rate is augmented by 50 percent for one such 
dependent, 75 percent for two such dependents, and 100 percent for 
three or more such dependents.
    (d) Survivor benefits. As used in this section, ``survivor'' means 
a surviving child of a miner or surviving spouse, or a surviving 
parent, brother, or sister of a miner, who establishes entitlement to 
benefits under this part.
    (e) Computation and rounding. (1) Any computation prescribed by 
this section is made to the third decimal place.
    (2) Monthly benefits are payable in multiples of 10 cents. 
Therefore, a monthly payment of amounts derived under paragraph (c)(3) 
of this section which is not a multiple of 10 cents is increased to the 
next higher multiple of 10 cents.
    (3) Since a fraction of a cent is not a multiple of 10 cents, such 
an amount which contains a fraction in the third decimal place is 
raised to the next higher multiple of 10 cents.
    (f) Eligibility based on the coal mine employment of more than one 
miner. Where an individual, for any month, is entitled (and/or 
qualifies as a dependent for purposes of augmentation of benefits) 
based on the disability or death due to pneumoconiosis arising out of 
the coal mine employment of more than one miner, the benefit payable to 
or on behalf of such individual shall be at a rate equal to the highest 
rate of benefits for which entitlement is established by reason of 
eligibility as a beneficiary, or by reason of his or her qualification 
as a dependent for augmentation of benefit purposes.


Sec. 725.521  Commutation of payments; lump sum awards.

    (a) Whenever the district director determines that it is in the 
interest of justice, the liability for benefits or any part thereof as 
determined by a final adjudication, may, with the approval of the 
Director, be discharged by the payment of a lump sum equal to the 
present value of future benefit payments commuted, computed at 4 
percent true discount compounded annually.
    (b) Applications for commutation of future payments of benefits 
shall be made to the district director in the manner prescribed by the 
district director. If the district director determines that an award of 
a lump sum payment of such benefits would be in the interest of 
justice, he or she shall refer such application, together with the 
reasons in support of such determination, to the Director for 
consideration.
    (c) The Director shall, in his or her discretion, grant or deny the 
application for commutation of payments. Such

[[Page 55053]]

decision may be appealed to the Benefits Review Board.
    (d) The computation of all commutations of such benefits shall be 
made by the OWCP. For this purpose the file shall contain the date of 
birth of the person on whose behalf commutation is sought, as well as 
the date upon which such commutation shall be effective.
    (e) For purposes of determining the amount of any lump sum award, 
the probability of the death of the disabled miner and/or other persons 
entitled to benefits before the expiration of the period during which 
he or she is entitled to benefits, shall be determined in accordance 
with the most current United States Life Tables, as developed by the 
Department of Health, Education, and Welfare, and the probability of 
the remarriage of a surviving spouse shall be determined in accordance 
with the remarriage tables of the Dutch Royal Insurance Institution. 
The probability of the happening of any other contingency affecting the 
amount or duration of the compensation shall be disregarded.
    (f) In the event that an operator or carrier is adjudicated liable 
for the payment of benefits, such operator or carrier shall be notified 
of and given an opportunity to participate in the proceedings to 
determine whether a lump sum award shall be made. Such operator or 
carrier shall, in the event a lump sum award is made, tender full and 
prompt payment of such award to the claimant as though such award were 
a final payment of monthly benefits. Except as provided in paragraph 
(g) of this section, such lump sum award shall forever discharge such 
operator or carrier from its responsibility to make monthly benefit 
payments under the Act to the person who has requested such lump-sum 
award. In the event that an operator or carrier is adjudicated liable 
for the payment of benefits, such operator or carrier shall not be 
liable for any portion of a commuted or lump sum award predicated upon 
benefits due any claimant prior to January 1, 1974.
    (g) In the event a lump-sum award is approved under this section, 
such award shall not operate to discharge an operator carrier, or the 
fund from any responsibility imposed by the Act for the payment of 
medical benefits to an eligible miner.


Sec. 725.522  Payments prior to final adjudication.

    (a) If an operator or carrier fails or refuses to commence the 
payment of benefits within 30 days of issuance of an initial 
determination of eligibility by the district director (see 
Sec. 725.420), or fails or refuses to commence the payment of any 
benefits due pursuant to an effective order by a district director, 
administrative law judge, Benefits Review Board, or court, the fund 
shall commence the payment of such benefits and shall continue such 
payments as appropriate. In the event that the fund undertakes the 
payment of benefits on behalf of an operator or carrier, the provisions 
of Secs. 725.601 through 725.609 shall be applicable to such operator 
or carrier.
    (b) If benefit payments are commenced prior to the final 
adjudication of the claim and it is later determined by an 
administrative law judge, the Board, or court that the claimant was 
ineligible to receive such payments, such payments shall be considered 
overpayments pursuant to Sec. 725.540 and may be recovered in 
accordance with the provisions of this subpart.

Special Provisions for Operator Payments


Sec. 725.530  Operator payments; generally.

    (a) Benefits payable by an operator or carrier pursuant to an 
effective order issued by a district director, administrative law 
judge, Benefits Review Board, or court, or by an operator that has 
agreed that it is liable for the payment of benefits to a claimant, 
shall be paid by the operator or carrier immediately when they become 
due (see Sec. 725.502(b)). An operator that fails to pay any benefits 
that are due, with interest, shall be considered in default with 
respect to those benefits, and the provisions of Sec. 725.605 shall be 
applicable. In addition, a claimant who does not receive any benefits 
within 10 days of the date they become due is entitled to additional 
compensation equal to twenty percent of those benefits (see 
Sec. 725.607). Arrangements for the payment of medical costs shall be 
made by such operator or carrier in accordance with the provisions of 
subpart J of this part.
    (b) Benefit payments made by an operator or carrier shall be made 
directly to the person entitled thereto or a representative payee if 
authorized by the district director. The payment of a claimant's 
attorney's fee, if any is awarded, shall be made directly to such 
attorney. Reimbursement of the fund, including interest, shall be paid 
directly to the Secretary on behalf of the fund.


Sec. 725.531  Receipt for payment.

    Any individual receiving benefits under the Act in his or her own 
right, or as a representative payee, or as the duly appointed agent for 
the estate of a deceased beneficiary, shall execute receipts for 
benefits paid by any operator which shall be produced by such operator 
for inspection whenever the district director requires. A canceled 
check shall be considered adequate receipt of payment for purposes of 
this section. No operator or carrier shall be required to retain 
receipts for payments made for more than 5 years after the date on 
which such receipt was executed.


Sec. 725.532  Suspension, reduction, or termination of payments.

    (a) No suspension, reduction, or termination in the payment of 
benefits is permitted unless authorized by the district director, 
administrative law judge, Board, or court. No suspension, reduction, or 
termination shall be authorized except upon the occurrence of an event 
which terminates a claimant's eligibility for benefits (see subpart B 
of this part) or as is otherwise provided in subpart C of this part, 
Secs. 725.306 and 725.310, or this subpart (see also Secs. 725.533 
through 725.546).
    (b) Any unauthorized suspension in the payment of benefits by an 
operator or carrier shall be treated as provided in subpart I.
    (c) Unless suspension, reduction, or termination of benefits 
payments is required by an administrative law judge, the Benefits 
Review Board or a court, the district director, after receiving 
notification of the occurrence of an event that would require the 
suspension, reduction, or termination of benefits, shall follow the 
procedures for the determination of claims set forth in subparts E and 
F.

Increases and Reductions of Benefits


Sec. 725.533  Modification of benefits amounts; general.

    (a) Under certain circumstances the amount of monthly benefits as 
computed in Sec. 725.520 or lump-sum award (Sec. 725.521) shall be 
modified to determine the amount actually to be paid to a beneficiary. 
With respect to any benefits payable for all periods of eligibility 
after January 1, 1974, a reduction of the amount of benefits payable 
shall be required on account of:
    (1) Any compensation or benefits received under any State workers' 
compensation law because of death or partial or total disability due to 
pneumoconiosis; or
    (2) Any compensation or benefits received under or pursuant to any 
Federal law including part B of title IV of the Act because of death or 
partial or total disability due to pneumoconiosis; or
    (3) In the case of benefits to a parent, brother, or sister as a 
result of a claim

[[Page 55054]]

filed at any time or benefits payable on a miner's claim which was 
filed on or after January 1, 1982, the excess earnings from wages and 
from net earnings from self-employment (see Sec. 410.530 of this title) 
of such parent, brother, sister, or miner, respectively; or
    (4) The fact that a claim for benefits from an additional 
beneficiary is filed, or that such claim is effective for a payment 
during the month of filing, or a dependent qualifies under this part 
for an augmentation portion of a benefit of a miner or widow for a 
period in which another dependent has previously qualified for an 
augmentation.
    (b) An adjustment in a beneficiary's monthly benefit may be 
required because an overpayment or underpayment has been made to such 
beneficiary (see Secs. 725.540 through 725.546).
    (c) A suspension of a beneficiary's monthly benefits may be 
required when the Office has information indicating that reductions on 
account of excess earnings may reasonably be expected.
    (d) Monthly benefit rates are payable in multiples of 10 cents. Any 
monthly benefit rate which, after the applicable computations, 
augmentations, and reductions is not a multiple of 10 cents, is 
increased to the next higher multiple of 10 cents. Since a fraction of 
a cent is not a multiple of 10 cents, a benefit rate which contains 
such a fraction in the third decimal is raised to the next higher 
multiple of 10 cents.
    (e) Any individual entitled to a benefit, who is aware of any 
circumstances which could affect entitlement to benefits, eligibility 
for payment, or the amount of benefits, or result in the termination, 
suspension, or reduction of benefits, shall promptly report these 
circumstances to the Office. The Office may at any time require an 
individual receiving, or claiming entitlement to, benefits, either on 
his or her own behalf or on behalf of another, to submit a written 
statement giving pertinent information bearing upon the issue of 
whether or not an event has occurred which would cause such benefit to 
be terminated, or which would subject such benefit to reductions or 
suspension under the provisions of the Act. The failure of an 
individual to submit any such report or statement, properly executed, 
to the Office shall subject such benefit to reductions, suspension, or 
termination as the case may be.


Sec. 725.534  Reduction of State benefits.

    No benefits under section 415 of part B of title IV of the Act 
shall be payable to the residents of a State which, after December 31, 
1969, reduces the benefits payable to persons eligible to receive 
benefits under section 415 of the Act under State laws applicable to 
its general work force with regard to workers' compensation (including 
compensation for occupational disease), unemployment compensation, or 
disability insurance benefits which are funded in whole or in part out 
of employer contributions.


Sec. 725.535  Reductions; receipt of State or Federal benefit.

    (a) As used in this section the term ``State or Federal benefit'' 
means a payment to an individual on account of total or partial 
disability or death due to pneumoconiosis only under State or Federal 
laws relating to workers' compensation. With respect to a claim for 
which benefits are payable for any month between July 1 and December 
31, 1973, ``State benefit'' means a payment to a beneficiary made on 
account of disability or death due to pneumoconiosis under State laws 
relating to workers' compensation (including compensation for 
occupational disease), unemployment compensation, or disability 
insurance.
    (b) Benefit payments to a beneficiary for any month are reduced 
(but not below zero) by an amount equal to any payments of State or 
Federal benefits received by such beneficiary for such month.
    (c) Where a State or Federal benefit is paid periodically but not 
monthly, or in a lump sum as a commutation of or a substitution for 
periodic benefits, the reduction under this section is made at such 
time or times and in such amounts as the Office determines will 
approximate as nearly as practicable the reduction required under 
paragraph (b) of this section. In making such a determination, a weekly 
State or Federal benefit is multiplied by 4\1/3\ and a biweekly benefit 
is multiplied by 2\1/6\ to ascertain the monthly equivalent for 
reduction purposes.
    (d) Amounts paid or incurred or to be incurred by the individual 
for medical, legal, or related expenses in connection with this claim 
for State or Federal benefits (defined in paragraph (a) of this 
section) are excluded in computing the reduction under paragraph (b) of 
this section, to the extent that they are consistent with State or 
Federal Law. Such medical, legal, or related expenses may be evidenced 
by the State or Federal benefit awards, compromise agreement, or court 
order in the State or Federal benefit proceedings, or by such other 
evidence as the Office may require. Such other evidence may consist of:
    (1) A detailed statement by the individual's attorney, physician, 
or the employer's insurance carrier; or
    (2) Bills, receipts, or canceled checks; or
    (3) Other evidence indicating the amount of such expenses; or
    (4) Any combination of the foregoing evidence from which the amount 
of such expenses may be determinable. Such expenses shall not be 
excluded unless established by evidence as required by the Office.


Sec. 725.536  Reductions; excess earnings.

    In the case of a surviving parent, brother, or sister, whose claim 
was filed at any time, or of a miner whose claim was filed on or after 
January 1, 1982, benefit payments are reduced as appropriate by an 
amount equal to the deduction which would be made with respect to 
excess earnings under the provisions of sections 203(b), (f), (g), (h), 
(j), and (l) of the Social Security Act (42 U.S.C. 403(b), (f), (g), 
(h), (j), and (l)), as if such benefit payments were benefits payable 
under section 202 of the Social Security Act (42 U.S.C. 402) (see 
Secs. 404.428 through 404.456 of this title).


Sec. 725.537  Reductions; retroactive effect of an additional claim for 
benefits.

    Except as provided in Sec. 725.212(b), beginning with the month in 
which a person other than a miner files a claim and becomes entitled to 
benefits, the benefits of other persons entitled to benefits with 
respect to the same miner, are adjusted downward, if necessary, so that 
no more than the permissible amount of benefits (the maximum amount for 
the number of beneficiaries involved) will be paid.


Sec. 725.538  Reductions; effect of augmentation of benefits based on 
subsequent qualification of individual.

    (a) Ordinarily, a written request that the benefits of a miner or 
surviving spouse be augmented on account of a qualified dependent is 
made as part of the claim for benefits. However, it may also be made 
thereafter.
    (b) In the latter case, beginning with the month in which such a 
request is filed on account of a particular dependent and in which such 
dependent qualifies for augmentation purposes under this part, the 
augmented benefits attributable to other qualified dependents (with 
respect to the same miner or surviving spouse), if any, are adjusted 
downward, if necessary, so that the permissible amount of augmented 
benefits (the maximum amount for the number of dependents involved) 
will not be exceeded.
    (c) Where, based on the entitlement to benefits of a miner or 
surviving spouse,

[[Page 55055]]

a dependent would have qualified for augmentation purposes for a prior 
month of such miner's or surviving spouse's entitlement had such 
request been filed in such prior month, such request is effective for 
such prior month. For any month before the month of filing such 
request, however, otherwise correct benefits previously certified by 
the Office may not be changed. Rather the amount of the augmented 
benefit attributable to the dependent filing such request in the later 
month is reduced for each month of the retroactive period to the extent 
that may be necessary. This means that for each month of the 
retroactive period, the amount payable to the dependent filing the 
later augmentation request is the difference, if any, between:
    (1) The total amount of augmented benefits certified for payment 
for other dependents for that month, and
    (2) The permissible amount of augmented benefits (the maximum 
amount for the number of dependents involved) payable for the month for 
all dependents, including the dependent filing later.


Sec. 725.539  More than one reduction event.

    If a reduction for receipt of State or Federal benefits and a 
reduction on account of excess earnings are chargeable to the same 
month, the benefit for such month is first reduced (but not below zero) 
by the amount of the State or Federal benefits, and the remainder of 
the benefit for such month, if any, is then reduced (but not below 
zero) by the amount of excess earnings chargeable to such month.

Overpayments; Underpayments


Sec. 725.540  Overpayments.

    (a) General. As used in this subpart, the term ``overpayment'' 
includes:
    (1) Payment where no amount is payable under this part;
    (2) Payment in excess of the amount payable under this part;
    (3) A payment under this part which has not been reduced by the 
amounts required by the Act (see Sec. 725.533);
    (4) A payment under this part made to a resident of a State whose 
residents are not entitled to benefits (see Secs. 725.402 and 725.403);
    (5) Payment resulting from failure to terminate benefits to an 
individual no longer entitled thereto;
    (6) Duplicate benefits paid to a claimant on account of concurrent 
eligibility under this part and parts 410 or 727 (see Sec. 725.4(d)) of 
this title or as provided in Sec. 725.309.
    (b) Overpaid beneficiary is living. If the beneficiary to whom an 
overpayment was made is living at the time of a determination of such 
overpayment, is entitled to benefits at the time of the overpayment, or 
at any time thereafter becomes so entitled, no benefit for any month is 
payable to such individual, except as provided in paragraph (c) of this 
section, until an amount equal to the amount of the overpayment has 
been withheld or refunded.
    (c) Adjustment by withholding part of a monthly benefit. Adjustment 
under paragraph (b) of this section may be effected by withholding a 
part of the monthly benefit payable to a beneficiary where it is 
determined that:
    (1) Withholding the full amount each month would deprive the 
beneficiary of income required for ordinary and necessary living 
expenses;
    (2) The overpayment was not caused by the beneficiary's 
intentionally false statement or representation, or willful concealment 
of, or deliberate failure to furnish, material information; and
    (3) Recoupment can be effected in an amount of not less than $ 10 a 
month and at a rate which would not unreasonably extend the period of 
adjustment.
    (d) Overpaid beneficiary dies before adjustment. If an overpaid 
beneficiary dies before adjustment is completed under the provisions of 
paragraph (b) of this section, recovery of the overpayment shall be 
effected through repayment by the estate of the deceased overpaid 
beneficiary, or by withholding of amounts due the estate of such 
deceased beneficiary, or both.


Sec. 725.541  Notice of waiver of adjustment or recovery of 
overpayment.

    Whenever a determination is made that more than the correct amount 
of payment has been made, notice of the provisions of section 204(b) of 
the Social Security Act regarding waiver of adjustment or recovery 
shall be sent to the overpaid individual, to any other individual 
against whom adjustment or recovery of the overpayment is to be 
effected, and to any operator or carrier which may be liable to such 
overpaid individual.


Sec. 725.542  When waiver of adjustment or recovery may be applied.

    There shall be no adjustment or recovery of an overpayment in any 
case where an incorrect payment has been made with respect to an 
individual:
    (a) Who is without fault, and where
    (b) Adjustment or recovery would either:
    (1) Defeat the purpose of title IV of the Act, or
    (2) Be against equity and good conscience.


Sec. 725.543  Standards for waiver of adjustment or recovery.

    The standards for determining the applicability of the criteria 
listed in Sec. 725.542 shall be the same as those applied by the Social 
Security Administration under Secs. 404.506 through 404.512 of this 
title.


Sec. 725.544  Collection and compromise of claims for overpayment.

    (a) General effect of 31 U.S.C. 3711. In accordance with 31 U.S.C. 
3711 and applicable regulations, claims by the Office against an 
individual for recovery of an overpayment under this part not exceeding 
the sum of $ 100,000, exclusive of interest, may be compromised, or 
collection suspended or terminated, where such individual or his or her 
estate does not have the present or prospective ability to pay the full 
amount of the claim within a reasonable time (see paragraph (c) of this 
section), or the cost of collection is likely to exceed the amount of 
recovery (see paragraph (d) of this section), except as provided under 
paragraph (b) of this section.
    (b) When there will be no compromise, suspension, or termination of 
collection of a claim for overpayment. (1) In any case where the 
overpaid individual is alive, a claim for overpayment will not be 
compromised, nor will there be suspension or termination of collection 
of the claim by the Office, if there is an indication of fraud, the 
filing of a false claim, or misrepresentation on the part of such 
individual or on the part of any other party having any interest in the 
claim.
    (2) In any case where the overpaid individual is deceased:
    (i) A claim for overpayment in excess of $ 5,000 will not be 
compromised, nor will there be suspension or termination of collection 
of the claim by the Office if there is an indication of fraud, the 
filing of a false claim, or misrepresentation on the part of such 
deceased individual; and
    (ii) A claim for overpayment, regardless of the amount, will not be 
compromised, nor will there be suspension or termination of collection 
of the claim by the Office if there is an indication that any person 
other than the deceased overpaid individual had a part in the 
fraudulent action which resulted in the overpayment.
    (c) Inability to pay claim for recovery of overpayment. In 
determining whether the overpaid individual is unable to pay a claim 
for recovery of an overpayment under this part, the Office shall 
consider the individual's age, health, present and potential income 
(including inheritance prospects), assets (e.g., real property,

[[Page 55056]]

savings account), possible concealment or improper transfer of assets, 
and assets or income of such individual which may be available in 
enforced collection proceedings. The Office will also consider 
exemptions available to such individual under the pertinent State or 
Federal law in such proceedings. In the event the overpaid individual 
is deceased, the Office shall consider the available assets of the 
estate, taking into account any liens or superior claims against the 
estate.
    (d) Cost of collection or litigative probabilities. Where the 
probable costs of recovering an overpayment under this part would not 
justify enforced collection proceedings for the full amount of the 
claim, or where there is doubt concerning the Office's ability to 
establish its claim as well as the time which it will take to effect 
such collection, a compromise or settlement for less than the full 
amount may be considered.
    (e) Amount of compromise. The amount to be accepted in compromise 
of a claim for overpayment under this part shall bear a reasonable 
relationship to the amount which can be recovered by enforced 
collection proceedings, giving due consideration to the exemption 
available to the overpaid individual under State or Federal law and the 
time which collection will take.
    (f) Payment. Payment of the amount the Office has agreed to accept 
as a compromise in full settlement of a claim for recovery of an 
overpayment under this part shall be made within the time and in the 
manner set by the Office. A claim for the overpayment shall not be 
considered compromised or settled until the full payment of the 
compromised amount has been made within the time and manner set by the 
Office. Failure of the overpaid individual or his or her estate to make 
such payment as provided shall result in reinstatement of the full 
amount of the overpayment less any amounts paid prior to such default.


Sec. 725.545  Underpayments.

    (a) General. As used in this subpart, the term ``underpayment'' 
includes a payment in an amount less than the amount of the benefit due 
for such month, and nonpayment where some amount of such benefits is 
payable.
    (b) Underpaid individual is living. If an individual to whom an 
underpayment was made is living, the deficit represented by such 
underpayment shall be paid to such individual either in a single 
payment (if he or she is not entitled to a monthly benefit or if a 
single payment is requested by the claimant in writing) or by 
increasing one or more monthly benefit payments to which such 
individual becomes entitled.
    (c) Underpaid individual dies before adjustment of underpayment. If 
an individual to whom an underpayment was made dies before receiving 
payment of the deficit or negotiating the check or checks representing 
payment of the deficit, such payment shall be distributed to the living 
person (or persons) in the highest order of priority as follows:
    (1) The deceased individual's surviving spouse who was either:
    (i) Living in the same household with the deceased individual at 
the time of such individual's death; or
    (ii) In the case of a deceased miner, entitled for the month of 
death to black lung benefits as his or her surviving spouse or 
surviving divorced spouse.
    (2) In the case of a deceased miner or spouse his or her child 
entitled to benefits as the surviving child of such miner or surviving 
spouse for the month in which such miner or spouse died (if more than 
one such child, in equal shares to each such child).
    (3) In the case of a deceased miner, his parent entitled to 
benefits as the surviving parent of such miner for the month in which 
such miner died (if more than one such parent, in equal shares to each 
such parent).
    (4) The surviving spouse of the deceased individual who does not 
qualify under paragraph (c)(1) of this section.
    (5) The child or children of the deceased individual who do not 
qualify under paragraph (c)(2) of this section (if more than one such 
child, in equal shares to each such child).
    (6) The parent or parents of the deceased individual who do not 
qualify under paragraph (c)(3) of this section (if more than one such 
parent, in equal shares to each such parent).
    (7) The legal representative of the estate of the deceased 
individual as defined in paragraph (e) of this section.
    (d) Deceased beneficiary. In the event that a person, who is 
otherwise qualified to receive payments as the result of a deficit 
caused by an underpayment under the provisions of paragraph (c) of this 
section, dies before receiving payment or before negotiating the check 
or checks representing such payment, his or her share of the 
underpayment shall be divided among the remaining living person(s) in 
the same order or priority. In the event that there is (are) no other 
such person(s), the underpayment shall be paid to the living person(s) 
in the next lower order of priority under paragraph (c) of this 
section.
    (e) Definition of legal representative. The term ``legal 
representative,'' for the purpose of qualifying for receipt of an 
underpayment, generally means the executor or the administrator of the 
estate of the deceased beneficiary. However, it may also include an 
individual, institution or organization acting on behalf of an 
unadministered estate, provided the person can give the Office good 
acquittance (as defined in paragraph (f) of this section). The 
following persons may qualify as legal representative for purposes of 
this section, provided they can give the Office good acquittance:
    (1) A person who qualifies under a State's ``small estate'' 
statute; or
    (2) A person resident in a foreign country who under the laws and 
customs of that country, has the right to receive assets of the estate; 
or
    (3) A public administrator; or
    (4) A person who has the authority under applicable law to collect 
the assets of the estate of the deceased beneficiary.
    (f) Definition of ``good acquittance.'' A person is considered to 
give the Office good acquittance when payment to that person will 
release the Office from further liability for such payment.


Sec. 725.546  Relation to provisions for reductions or increases.

    The amount of an overpayment or an underpayment is the difference 
between the amount to which the beneficiary was actually entitled and 
the amount paid. Overpayment and underpayment simultaneously 
outstanding against the same beneficiary shall first be adjusted 
against one another before adjustment pursuant to the other provisions 
of this subpart.


Sec. 725.547  Applicability of overpayment and underpayment provisions 
to operator or carrier.

    (a) The provisions of this subpart relating to overpayments and 
underpayments shall be applicable to overpayments and underpayments 
made by responsible operators or their insurance carriers, as 
appropriate.
    (b) No operator or carrier may recover, or make an adjustment of, 
an overpayment without prior application to, and approval by, the 
Office which shall exercise full supervisory authority over the 
recovery or adjustment of all overpayments.


Sec. 725.548  Procedures applicable to overpayments and underpayments.

    (a) In any case involving either overpayments or underpayments, the 
Office may take any necessary action, and district directors may issue

[[Page 55057]]

appropriate orders to protect the rights of the parties.
    (b) Disputes arising out of orders so issued shall be resolved by 
the procedures set out in subpart F of this part.

Subpart I--Enforcement of Liability; Reports


Sec. 725.601  Enforcement generally.

    (a) The Act, together with certain incorporated provisions from the 
Longshoremen's and Harbor Workers' Compensation Act, contains a number 
of provisions which subject an operator or other employer, claimants 
and others to penalties for failure to comply with certain provisions 
of the Act, or failure to commence and continue prompt periodic 
payments to a beneficiary.
    (b) It is the policy and intent of the Department to vigorously 
enforce the provisions of this part through the use of the remedies 
provided by the Act. Accordingly, if an operator refuses to pay 
benefits with respect to a claim for which the operator has been 
adjudicated liable, the Director shall invoke and execute the lien on 
the property of the operator as described in Sec. 725.603. Enforcement 
of this lien shall be pursued in an appropriate U.S. district court. If 
the Director determines that the remedy provided by Sec. 725.603 may 
not be sufficient to guarantee the continued compliance with the terms 
of an award or awards against the operator, the Director shall in 
addition seek an injunction in the U.S. district court to prohibit 
future noncompliance by the operator and such other relief as the court 
considers appropriate (see Sec. 725.604). If an operator unlawfully 
suspends or terminates the payment of benefits to a claimant, the 
district director shall declare the award in default and proceed in 
accordance with Sec. 725.605. In all cases payments in addition to 
compensation (see Sec. 725.607) and interest (see Sec. 725.608) shall 
be sought by the Director or awarded by the district director.
    (c) In certain instances the remedies provided by the Act are 
concurrent; that is, more than one remedy might be appropriate in any 
given case. In such a case, the Director shall select the remedy or 
remedies appropriate for the enforcement action. In making this 
selection, the Director shall consider the best interests of the 
claimant as well as those of the fund.


Sec. 725.602  Reimbursement of the fund.

    (a) In any case in which the fund has paid benefits, including 
medical benefits, on behalf of an operator or other employer which is 
determined liable therefore, or liable for a part thereof, such 
operator or other employer shall simultaneously with the first payment 
of benefits made to the beneficiary, reimburse the fund (with interest) 
for the full amount of all benefit payments made by the fund with 
respect to the claim.
    (b) In any case where benefit payments have been made by the fund, 
the fund shall be subrogated to the rights of the beneficiary. The 
Secretary of Labor may, as appropriate, exercise such subrogation 
rights.


Sec. 725.603  Payments by the fund on behalf of an operator; liens.

    (a) If an amount is paid out of the fund to an individual entitled 
to benefits under this part or part 727 of this subchapter (see 
Sec. 725.4(d)) on behalf of an operator or other employer which is or 
was required to pay or secure the payment of all or a portion of such 
amount (see Sec. 725.522), the operator or other employer shall be 
liable to the United States for repayment to the fund of the amount of 
benefits properly attributable to such operator or other employer.
    (b) If an operator or other employer liable to the fund refuses to 
pay, after demand, the amount of such liability, there shall be a lien 
in favor of the United States upon all property and rights to property, 
whether real or personal, belonging to such operator or other employer. 
The lien arises on the date on which such liability is finally 
determined, and continues until it is satisfied or becomes 
unenforceable by reason of lapse of time. (c)(1) Except as otherwise 
provided under this section, the priority of the lien shall be 
determined in the same manner as under section 6323 of the Internal 
Revenue Code (26 U.S.C.).
    (2) In the case of a bankruptcy or insolvency proceeding, the lien 
imposed under this section shall be treated in the same manner as a 
lien for taxes due and owing to the United States for purposes of the 
Bankruptcy Act or section 3466 of the Revised Statutes (31 U.S.C. 191).
    (3) For purposes of applying section 6323(a) of the Internal 
Revenue Code (26 U.S.C.) to determine the priority between the lien 
imposed under this section and the Federal tax lien, each lien shall be 
treated as a judgment lien arising as of the time notice of such lien 
is filed.
    (4) For purposes of the section, notice of the lien imposed 
hereunder shall be filed in the same manner as under section 6323(f) 
(disregarding paragraph (4) thereof) and (g) of the Internal Revenue 
Code (26 U.S.C.).
    (5) In any case where there has been a refusal or neglect to pay 
the liability imposed under this section, the Secretary of Labor may 
bring a civil action in a district court of the United States to 
enforce the lien of the United States under this section with respect 
to such liability or to subject any property, of whatever nature, of 
the operator, or in which it has any right, title, or interest, to the 
payment of such liability.
    (6) The liability imposed by this paragraph may be collected at a 
proceeding in court if the proceeding is commenced within 6 years after 
the date upon which the liability was finally determined, or prior to 
the expiration of any period for collection agreed upon in writing by 
the operator and the United States before the expiration of such 6-year 
period. This period of limitation shall be suspended for any period 
during which the assets of the operator are in the custody or control 
of any court of the United States, or of any State, or the District of 
Columbia, and for 6 months thereafter, and for any period during which 
the operator is outside the United States if such period of absence is 
for a continuous period of at least 6 months.


Sec. 725.604  Enforcement of final awards.

    Notwithstanding the provisions of Sec. 725.603, if an operator or 
other employer or its officers or agents fails to comply with an order 
awarding benefits that has become final, any beneficiary of such award 
or the district director may apply for the enforcement of the order to 
the Federal district court for the judicial district in which the 
injury occurred (or to the U.S. District Court for the District of 
Columbia if the injury occurred in the District). If the court 
determines that the order was made and served in accordance with law, 
and that such operator or other employer or its officers or agents have 
failed to comply therewith, the court shall enforce obedience to the 
order by writ of injunction or by other proper process, mandatory or 
otherwise, to enjoin upon such operator or other employer and its 
officers or agents compliance with the order.


Sec. 725.605  Defaults.

    (a) Except as is otherwise provided in this part, no suspension, 
termination or other failure to pay benefits awarded to a claimant is 
permitted. If an employer found liable for the payment of such benefits 
fails to make such payments within 30 days after any date on which such 
benefits are due and payable, the person to whom such benefits are 
payable may, within one year after such default, make application to 
the district

[[Page 55058]]

director for a supplementary order declaring the amount of the default.
    (b) If after investigation, notice and hearing as provided in 
subparts E and F of this part, a default is found, the district 
director or the administrative law judge, if a hearing is requested, 
shall issue a supplementary order declaring the amount of the default, 
if any. In cases where a lump-sum award has been made, if the payment 
in default is an installment, the district director or administrative 
law judge, may, in his or her discretion, declare the whole of the 
award as the amount in default. The applicant may file a certified copy 
of such supplementary order with the clerk of the Federal district 
court for the judicial district in which the operator has its principal 
place of business or maintains an office or for the judicial district 
in which the injury occurred. In case such principal place of business 
or office is in the District of Columbia, a copy of such supplementary 
order may be filed with the clerk of the U.S. District Court for the 
District of Columbia. Such supplementary order shall be final and the 
court shall, upon the filing of the copy, enter judgment for the amount 
declared in default by the supplementary order if such supplementary 
order is in accordance with law. Review of the judgment may be had as 
in civil suits for damages at common law. Final proceedings to execute 
the judgment may be had by writ of execution in the form used by the 
court in suits at common law in actions of assumpsit. No fee shall be 
required for filing the supplementary order nor for entry of judgment 
thereon, and the applicant shall not be liable for costs in a 
proceeding for review of the judgment unless the court shall otherwise 
direct. The court shall modify such judgment to conform to any later 
benefits order upon presentation of a certified copy thereof to the 
court.
    (c) In cases where judgment cannot be satisfied by reason of the 
employer's insolvency or other circumstances precluding payment, the 
district director shall make payment from the fund, and in addition, 
provide any necessary medical, surgical, and other treatment required 
by subpart J of this part. A defaulting employer shall be liable to the 
fund for payment of the amounts paid by the fund under this section; 
and for the purpose of enforcing this liability, the fund shall be 
subrogated to all the rights of the person receiving such payments or 
benefits.


Sec. 725.606  Security for the payment of benefits.

    (a) Following the issuance of an effective order by a district 
director (see Sec. 725.418), administrative law judge (see 
Sec. 725.479), Benefits Review Board, or court that requires the 
payment of benefits by an operator that has failed to secure the 
payment of benefits in accordance with section 423 of the Act and 
Sec. 726.4 of this subchapter, or by a coal mine construction or 
transportation employer, the Director may request that the operator 
secure the payment of all benefits ultimately payable on the claim. 
Such operator or other employer shall thereafter immediately secure the 
payment of benefits in accordance with the provisions of this section, 
and provide proof of such security to the Director. Such security may 
take the form of an indemnity bond, a deposit of cash or negotiable 
securities in compliance with Secs. 726.106(c) and 726.107 of this 
subchapter, or any other form acceptable to the Director.
    (b) The amount of security initially required by this section shall 
be determined as follows:
    (1) In a case involving an operator subject to section 423 of the 
Act and Sec. 726.4 of this subchapter, the amount of the security shall 
not be less than $175,000, and may be a higher amount as determined by 
the Director, taking into account the life expectancies of the claimant 
and any dependents using the most recent life expectancy tables 
published by the Social Security Administration; or
    (2) In a case involving a coal mine construction or transportation 
employer, the amount of the security shall be determined by the 
Director, taking into account the life expectancies of the claimant and 
any dependents using the most recent life expectancy tables published 
by the Social Security Administration.
    (c) If the operator or other employer fails to provide proof of 
such security to the Director within 30 days of its receipt of the 
Director's request to secure the payment of benefits issued under 
paragraph (a) of this section, the appropriate adjudication officer 
shall issue an order requiring the operator or other employer to make a 
deposit of negotiable securities with a Federal Reserve Bank in the 
amount required by paragraph (b). Such securities shall comply with the 
requirements of sections 726.106(c) and 726.107 of this subchapter. In 
a case in which the effective order was issued by a district director, 
the district director shall be considered the appropriate adjudication 
officer. In any other case, the administrative law judge who issued the 
most recent decision in the case, or such other administrative law 
judge as the Chief Administrative Law Judge shall designate, shall be 
considered the appropriate adjudication officer, and shall issue an 
order under this paragraph on motion of the Director. The 
administrative law judge shall have jurisdiction to issue an order 
under this paragraph notwithstanding the pendency of an appeal of the 
award of benefits with the Benefits Review Board or court.
    (d) An order issued under this section shall be considered 
effective when issued. Disputes regarding such orders shall be resolved 
in accordance with subpart F of this part.
    (e) Notwithstanding any further review of the order in accordance 
with subpart F of this part, if an operator or other employer subject 
to an order issued under this section fails to comply with such order, 
the appropriate adjudication officer shall certify such non-compliance 
to the appropriate United States district court in accordance with 
Sec. 725.351(c).
    (f) Security posted in accordance with this section may be used to 
make payment of benefits that become due with respect to the claim in 
accordance with Sec. 725.502. In the event that either the order 
awarding compensation or the order issued under this section is vacated 
or reversed, the operator or other employer may apply to the 
appropriate adjudication officer for an order authorizing the return of 
any amounts deposited with the United States Treasurer and not yet 
disbursed, and such application shall be granted. If at any time the 
Director determines that additional security is required beyond that 
initially required by paragraph (b) of this section, he may request the 
operator or other employer to increase the amount. Such request shall 
be treated as if it were issued under paragraph (a) of this section.
    (g) If a coal mine construction or transportation employer fails to 
comply with an order issued under paragraph (c), and such employer is a 
corporation, the provisions of Sec. 725.609 shall be applicable to the 
president, secretary, and treasurer of such employer.


Sec. 725.607  Payments in addition to compensation.

    (a) If any benefits payable under the terms of an award by a 
district director (Sec. 725.419(d)), a decision and order filed and 
served by an administrative law judge (Sec. 725.478), or a decision 
filed by the Board or a U.S. court of appeals, are not paid by an 
operator or other employer ordered to make such payments within 10 days 
after such

[[Page 55059]]

payments become due, there shall be added to such unpaid benefits an 
amount equal to 20 percent thereof, which shall be paid to the claimant 
at the same time as, but in addition to, such benefits, unless review 
of the order making such award is sought as provided in section 21 of 
the LHWCA and an order staying payments has been issued.
    (b) If, on account of an operator's or other employer's failure to 
pay benefits as provided in paragraph (a) of this section, benefit 
payments are made by the fund, the eligible claimant shall nevertheless 
be entitled to receive such additional compensation to which he or she 
may be eligible under paragraph (a) of this section, with respect to 
all amounts paid by the fund on behalf of such operator or other 
employer.
    (c) The fund shall not be liable for payments in addition to 
compensation under any circumstances.


Sec. 725.608  Interest.

    (a)(1) In any case in which an operator fails to pay benefits that 
are due (Sec. 725.502), the beneficiary shall also be entitled to 
simple annual interest, computed from the date on which the benefits 
were due. The interest shall be computed through the date on which the 
operator paid the benefits, except that the beneficiary shall not be 
entitled to interest for any period following the date on which the 
beneficiary received payment of any benefits from the fund pursuant to 
Sec. 725.522.
    (2) In any case in which an operator is liable for the payment of 
retroactive benefits, the beneficiary shall also be entitled to simple 
annual interest on such benefits, computed from 30 days after the date 
of the first determination that such an award should be made. The first 
determination that such an award should be made may be a district 
director's initial determination of entitlement, an award made by an 
administrative law judge or a decision by the Board or a court, 
whichever is the first such determination of entitlement made upon the 
claim.
    (3) In any case in which an operator is liable for the payment of 
additional compensation (Sec. 725.607), the beneficiary shall also be 
entitled to simple annual interest computed from the date upon which 
the beneficiary's right to additional compensation first arose.
    (4) In any case in which an operator is liable for the payment of 
medical benefits, the beneficiary or medical provider to whom such 
benefits are owed shall also be entitled to simple annual interest, 
computed from the date upon which the services were rendered, or from 
30 days after the date of the first determination that the miner is 
generally entitled to medical benefits, whichever is later. The first 
determination that the miner is generally entitled to medical benefits 
may be a district director's initial determination of entitlement, an 
award made by an administrative law judge or a decision by the Board or 
a court, whichever is the first such determination of general 
entitlement made upon the claim. The interest shall be computed through 
the date on which the operator paid the benefits, except that the 
beneficiary shall not be entitled to interest for any period following 
the date on which the beneficiary received payment of any benefits from 
the fund pursuant to Sec. 725.522 or subpart I of this part.
    (b) If an operator or other employer fails or refuses to pay any or 
all benefits due pursuant to an award of benefits or an initial 
determination of eligibility made by the district director and the fund 
undertakes such payments, such operator or other employer shall be 
liable to the fund for simple annual interest on all payments made by 
the fund for which such operator is determined liable, computed from 
the first date on which such benefits are paid by the fund, in addition 
to such operator's liability to the fund, as is otherwise provided in 
this part. Interest payments owed pursuant to this paragraph shall be 
paid directly to the fund.
    (c) In any case in which an operator is liable for the payment of 
an attorney's fee pursuant to Sec. 725.367, and the attorney's fee is 
payable because the award of benefits has become final, the attorney 
shall also be entitled to simple annual interest, computed from the 
date on which the attorney's fee was awarded. The interest shall be 
computed through the date on which the operator paid the attorney's 
fee.
    (d) The rates of interest applicable to paragraphs (a), (b), and 
(c) of this section shall be computed as follows:
    (1) For all amounts outstanding prior to January 1, 1982, the rate 
shall be 6% simple annual interest;
    (2) For all amounts outstanding for any period during calendar year 
1982, the rate shall be 15% simple annual interest; and
    (3) For all amounts outstanding during any period after calendar 
year 1982, the rate shall be simple annual interest at the rate 
established by section 6621 of the Internal Revenue Code (26 U.S.C.) 
which is in effect for such period.
    (e) The fund shall not be liable for the payment of interest under 
any circumstances, other than the payment of interest on advances from 
the United States Treasury as provided by section 9501(c) of the 
Internal Revenue Code (26 U.S.C.).


Sec. 725.609  Enforcement against other persons.

    In any case in which an award of benefits creates obligations on 
the part of an operator or insurer that may be enforced under the 
provisions of this subpart, such obligations may also be enforced, in 
the discretion of the Secretary or district director, as follows:
    (a) In a case in which the operator is a sole proprietorship or 
partnership, against any person who owned, or was a partner in, such 
operator during any period commencing on or after the date on which the 
miner was last employed by the operator;
    (b) In a case in which the operator is a corporation that failed to 
secure its liability for benefits in accordance with section 423 of the 
Act and Sec. 726.4 of this subchapter, and the operator has not secured 
its liability for the claim in accordance with Sec. 725.606, against 
any person who served as the president, secretary, or treasurer of such 
corporation during any period commencing on or after the date on which 
the miner was last employed by the operator;
    (c) In a case in which the operator is no longer capable of 
assuming its liability for the payment of benefits (Sec. 725.494(e)), 
against any operator which became a successor operator with respect to 
the liable operator (Sec. 725.492) after the date on which the claim 
was filed, beginning with the most recent such successor operator;
    (d) In a case in which the operator is no longer capable of 
assuming its liability for the payment of benefits (Sec. 725.494(e)), 
and such operator was a subsidiary of a parent company or a product of 
a joint venture, or was substantially owned or controlled by another 
business entity, against such parent entity, any member of such joint 
venture, or such controlling business entity; or
    (e) Against any other person who has assumed or succeeded to the 
obligations of the operator or insurer by operation of any state or 
federal law, or by any other means.


Sec. 725.620  Failure to secure benefits; other penalties.

    (a) If an operator fails to discharge its insurance obligations 
under the Act, the provisions of subpart D of part 726 of this 
subchapter shall apply.
    (b) Any employer who knowingly transfers, sells, encumbers, 
assigns, or in

[[Page 55060]]

any manner disposes of, conceals, secrets, or destroys any property 
belonging to such employer, after one of its employees has been injured 
within the purview of the Act, and with intent to avoid the payment of 
benefits under the Act to such miner or his or her dependents, shall be 
guilty of a misdemeanor and, upon conviction thereof, shall be punished 
by a fine of not more than $1,000, or by imprisonment for not more than 
one year, or by both. In any case where such employer is a corporation, 
the president, secretary, and treasurer thereof shall be also severally 
liable for such penalty or imprisonment as well as jointly liable with 
such corporation for such fine.
    (c) No agreement by a miner to pay any portion of a premium paid to 
a carrier by such miner's employer or to contribute to a benefit fund 
or department maintained by such employer for the purpose of providing 
benefits or medical services and supplies as required by this part 
shall be valid; and any employer who makes a deduction for such purpose 
from the pay of a miner entitled to benefits under the Act shall be 
guilty of a misdemeanor and upon conviction thereof shall be punished 
by a fine of not more than $1,000.
    (d) No agreement by a miner to waive his or her right to benefits 
under the Act and the provisions of this part shall be valid.
    (e) This section shall not affect any other liability of the 
employer under this part.


Sec. 725.621  Reports.

    (a) Upon making the first payment of benefits and upon suspension, 
reduction, or increase of payments, the operator or other employer 
responsible for making payments shall immediately notify the district 
director of the action taken, in accordance with a form prescribed by 
the Office.
    (b) Within 16 days after final payment of benefits has been made by 
an employer, such employer shall so notify the district director, in 
accordance with a form prescribed by the Office, stating that such 
final payment, has been made, the total amount of benefits paid, the 
name of the beneficiary, and such other information as the Office deems 
pertinent.
    (c) The Director may from time to time prescribe such additional 
reports to be made by operators, other employers, or carriers as the 
Director may consider necessary for the efficient administration of the 
Act.
    (d) Any employer who fails or refuses to file any report required 
of such employer under this section shall be subject to a civil penalty 
not to exceed $500 for each failure or refusal, which penalty shall be 
determined in accordance with the procedures set forth in subpart D of 
part 726 of this subchapter, as appropriate. The maximum penalty 
applicable to any violation of this paragraph that takes place after 
[effective date of the final rule] shall be $550.
    (e) No request for information or response to such request shall be 
considered a report for purposes of this section or the Act, unless it 
is so designated by the Director or by this section.

Subpart J--Medical Benefits and Vocational Rehabilitation


Sec. 725.701  Availability of medical benefits.

    (a) A miner who is determined to be eligible for benefits under 
this part or part 727 of this subchapter (see Sec. 725.4(d)) is 
entitled to medical benefits as set forth in this subpart as of the 
date of his or her claim, but in no event before January 1, 1974. No 
medical benefits shall be provided to the survivor or dependent of a 
miner under this part.
    (b) A responsible operator, other employer, or where there is 
neither, the fund, shall furnish a miner entitled to benefits under 
this part with such medical, surgical, and other attendance and 
treatment, nursing and hospital services, medicine and apparatus, and 
any other medical service or supply, for such periods as the nature of 
the miner's pneumoconiosis and disability requires.
    (c) The medical benefits referred to in paragraphs (a) and (b) of 
this section shall include palliative measures useful only to prevent 
pain or discomfort associated with the miner's pneumoconiosis or 
attendant disability.
    (d) The costs recoverable under this subpart shall include the 
reasonable cost of travel necessary for medical treatment (to be 
determined in accordance with prevailing United States government 
mileage rates) and the reasonable documented cost to the miner or 
medical provider incurred in communicating with the employer, carrier, 
or district director on matters connected with medical benefits.
    (e) If a miner receives a medical service or supply, as described 
in this section, for any pulmonary disorder, there shall be a 
rebuttable presumption that the disorder is caused or aggravated by the 
miner's pneumoconiosis. The party liable for the payment of benefits 
may rebut the presumption by producing credible evidence that the 
medical service or supply provided was not for a covered pulmonary 
disorder as defined in Sec. 718.201 of this subchapter, or was beyond 
that necessary to effectively treat a covered disorder, or was not for 
a pulmonary disorder at all.
    (f) Evidence that the miner does not have pneumoconiosis or is not 
totally disabled by pneumoconiosis arising out of coal mine employment 
is insufficient to defeat a request for coverage of any medical service 
or supply under this subpart. In determining whether the treatment is 
compensable, the opinion of the miner's treating physician may be 
entitled to controlling weight pursuant to Sec. 718.104(d). A finding 
that a medical service or supply is not covered under this subpart 
shall not otherwise affect the miner's entitlement to benefits.


Sec. 725.702  Claims for medical benefits only under section 11 of the 
Reform Act.

    (a) Section 11 of the Reform Act directs the Secretary of Health, 
Education and Welfare to notify each miner receiving benefits under 
part B of title IV of the Act that he or she may file a claim for 
medical treatment benefits described in this subpart. Section 
725.308(b) provides that a claim for medical treatment benefits shall 
be filed on or before December 31, 1980, unless the period is enlarged 
for good cause shown. This section sets forth the rules governing the 
processing, adjudication, and payment of claims filed under section 11.
    (b) (1) A claim filed pursuant to the notice described in paragraph 
(a) of this section shall be considered a claim for medical benefits 
only, and shall be filed, processed, and adjudicated in accordance with 
the provisions of this part, except as provided in this section. While 
a claim for medical benefits must be treated as any other claim filed 
under part C of title IV of the Act, the Department shall accept the 
Social Security Administration's finding of entitlement as its initial 
determination.
    (2) In the case of a part B beneficiary whose coal mine employment 
terminated before January 1, 1970, the Secretary shall make an 
immediate award of medical benefits. Where the part B beneficiary's 
coal mine employment terminated on or after January 1, 1970, the 
Secretary shall immediately authorize the payment of medical benefits 
and thereafter inform the responsible operator, if any, of the 
operator's right to contest the claimant's entitlement for medical 
benefits.
    (c) A miner on whose behalf a claim is filed under this section 
(see Sec. 725.301) must have been alive on March 1, 1978, in order for 
the claim to be considered.
    (d) The criteria contained in subpart C of part 727 of this 
subchapter (see

[[Page 55061]]

Sec. 725.4(d)) are applicable to claims for medical benefits filed 
under this section.
    (e) No determination made with respect to a claim filed under this 
section shall affect any determination previously made by the Social 
Security Administration. The Social Security Administration may, 
however, reopen a previously approved claim if the conditions set forth 
in Sec. 410.672(c) of this chapter are present. These conditions are 
generally limited to fraud or concealment.
    (f) If medical benefits are awarded under this section, such 
benefits shall be payable by a responsible coal mine operator (see 
subpart G of this part), if the miner's last employment occurred on or 
after January 1, 1970, and in all other cases by the fund. An operator 
which may be required to provide medical treatment benefits to a miner 
under this section shall have the right to participate in the 
adjudication of the claim as is otherwise provided in this part.
    (g) Any miner whose coal mine employment terminated after January 
1, 1970, may be required to submit to a medical examination requested 
by an identified operator. The unreasonable refusal to submit to such 
an examination shall have the same consequences as are provided under 
Sec. 725.414.
    (h) If a miner is determined eligible for medical benefits in 
accordance with this section, such benefits shall be provided from the 
date of filing, except that such benefits may also include payments for 
any unreimbursed medical treatment costs incurred personally by such 
miner during the period from January 1, 1974, to the date of filing 
which are attributable to medical care required as a result of the 
miner's total disability due to pneumoconiosis. No reimbursement for 
health insurance premiums, taxes attributable to any public health 
insurance coverage, or other deduction or payments made for the purpose 
of securing third party liability for medical care costs is authorized 
by this section. If a miner seeks reimbursement for medical care costs 
personally incurred before the filing of a claim under this section, 
the district director shall require documented proof of the nature of 
the medical service provided, the identity of the medical provider, the 
cost of the service, and the fact that the cost was paid by the miner, 
before reimbursement for such cost may be awarded.


Sec. 725.703  Physician defined.

    The term ``physician'' includes only doctors of medicine (MD) and 
osteopathic practitioners within the scope of their practices as 
defined by State law. No treatment or medical services performed by any 
other practitioner of the healing arts is authorized by this part, 
unless such treatment or service is authorized and supervised both by a 
physician as defined in this section and the district director.


Sec. 725.704  Notification of right to medical benefits; authorization 
of treatment.

    (a) Upon notification to a miner of such miner's entitlement to 
benefits, the Office shall provide the miner with a list of authorized 
treating physicians and medical facilities in the area of the miner's 
residence. The miner may select a physician from this list or may 
select another physician with approval of the Office. Where emergency 
services are necessary and appropriate, authorization by the Office 
shall not be required.
    (b) The Office may, on its own initiative, or at the request of a 
responsible operator, order a change of physicians or facilities, but 
only where it has been determined that the change is desirable or 
necessary in the best interest of the miner. The miner may change 
physicians or facilities subject to the approval of the Office.
    (c) If adequate treatment cannot be obtained in the area of the 
claimant's residence, the Office may authorize the use of physicians or 
medical facilities outside such area as well as reimbursement for 
travel expenses and overnight accommodations.


Sec. 725.705  Arrangements for medical care.

    (a) Operator liability. If an operator has been determined liable 
for the payment of benefits to a miner, the Office shall notify such 
operator or insurer of the names, addresses, and telephone numbers of 
the authorized providers of medical benefits chosen by an entitled 
miner, and shall require the operator or insurer to:
    (1) Notify the miner and the providers chosen that such operator 
will be responsible for the cost of medical services provided to the 
miner on account of the miner's total disability due to pneumoconiosis;
    (2) Designate a person or persons with decisionmaking authority 
with whom the Office, the miner and authorized providers may 
communicate on matters involving medical benefits provided under this 
subpart and notify the Office, miner and providers of such designation;
    (3) Make arrangements for the direct reimbursement of providers for 
their services.
    (b) Fund liability. If there is no operator found liable for the 
payment of benefits, the Office shall make necessary arrangements to 
provide medical care to the miner, notify the miner and medical care 
facility selected of the liability of the fund, designate a person or 
persons with whom the miner or provider may communicate on matters 
relating to medical care, and make arrangements for the direct 
reimbursement of the medical provider.


Sec. 725.706  Authorization to provide medical services.

    (a) Except as provided in paragraph (b) of this section, medical 
services from an authorized provider which are payable under 
Sec. 725.701 shall not require prior approval of the Office or the 
responsible operator.
    (b) Except where emergency treatment is required, prior approval of 
the Office or the responsible operator shall be obtained before any 
hospitalization or surgery, or before ordering an apparatus for 
treatment where the purchase price exceeds $300. A request for approval 
of non-emergency hospitalization or surgery shall be acted upon 
expeditiously, and approval or disapproval will be given by telephone 
if a written response cannot be given within 7 days following the 
request. No employee of the Department of Labor, other than a district 
director or the Chief, Branch of Medical Analysis and Services, DCMWC, 
is authorized to approve a request for hospitalization or surgery by 
telephone.
    (c) Payment for medical services, treatment, or an apparatus shall 
be made at no more than the rate prevailing in the community in which 
the providing physician, medical facility or supplier is located.


Sec. 725.707  Reports of physicians and supervision of medical care.

    (a) Within 30 days following the first medical or surgical 
treatment provided under Sec. 725.701, the treating physician or 
facility shall furnish to the Office and the responsible operator, if 
any, a report of such treatment.
    (b) In order to permit continuing supervision of the medical care 
provided to the miner with respect to the necessity, character and 
sufficiency of any medical care furnished or to be furnished, the 
treating physician, facility, employer or carrier shall provide such 
reports in addition to those required by paragraph (a) of this section 
as the Office may from time to time require. Within the discretion of

[[Page 55062]]

the district director, payment may be refused to any medical provider 
who fails to submit any report required by this section.


Sec. 725.708  Disputes concerning medical benefits.

    (a) Whenever a dispute develops concerning medical services under 
this part, the district director shall attempt to informally resolve 
such dispute. In this regard the district director may, on his or her 
own initiative or at the request of the responsible operator order the 
claimant to submit to an examination by a physician selected by the 
district director.
    (b) If no informal resolution is accomplished, the district 
director shall refer the case to the Office of Administrative Law 
Judges for hearing in accordance with this part. Any such hearing shall 
be scheduled at the earliest possible time and shall take precedence 
over all other requests for hearing except for prior requests for 
hearing arising under this section and as provided by Sec. 727.405 of 
this subchapter (see Sec. 725.4(d)). During the pendency of such 
adjudication, the Director may order the payment of medical benefits 
prior to final adjudication under the same conditions applicable to 
benefits awarded under Sec. 725.522.
    (c) In the development or adjudication of a dispute over medical 
benefits, the adjudication officer is authorized to take whatever 
action may be necessary to protect the health of a totally disabled 
miner.
    (d) Any interested medical provider may, if appropriate, be made a 
party to a dispute over medical benefits.


Sec. 725.710  Objective of vocational rehabilitation.

    The objective of vocational rehabilitation is the return of a miner 
who is totally disabled for work in or around a coal mine and who is 
unable to utilize those skills which were employed in the miner's coal 
mine employment to gainful employment commensurate with such miner's 
physical impairment. This objective may be achieved through a program 
of re-evaluation and redirection of the miner's abilities, or 
retraining in another occupation, and selective job placement 
assistance.


Sec. 725.711  Requests for referral to vocational rehabilitation 
assistance.

    Each miner who has been determined entitled to receive benefits 
under part C of title IV of the Act shall be informed by the OWCP of 
the availability and advisability of vocational rehabilitation 
services. If such miner chooses to avail himself or herself of 
vocational rehabilitation, his or her request shall be processed and 
referred by OWCP vocational rehabilitation advisors pursuant to the 
provisions of Secs. 702.501 through 702.508 of this chapter as is 
appropriate.
    5. Part 726 is proposed to be revised as follows:

PART 726--BLACK LUNG BENEFITS; REQUIREMENTS FOR COAL MINE 
OPERATOR'S INSURANCE

Subpart A--General

Sec.
726.1  Statutory insurance requirements for coal mine operators.
726.2  Purpose and scope of this part.
726.3  Relationship of this part to other parts in this subchapter.
726.4  Who must obtain insurance coverage.
726.5  Effective date of insurance coverage.
726.6  The Office of Workers' Compensation Programs.
726.7  Forms, submission of information.
726.8  Definitions.

Subpart B--Authorization of Self-Insurers

726.101  Who may be authorized to self-insure.
726.102  Application for authority to become a self-insurer; how 
filed; information to be submitted.
726.103  Application for authority to self-insure; effect of 
regulations contained in this part.
726.104  Action by the Office upon application of operator.
726.105  Fixing the amount of security.
726.106  Type of security.
726.107  Deposits of negotiable securities with Federal Reserve 
banks or the Treasurer of the United States; authority to sell such 
securities; interest thereon.
726.108  Withdrawal of negotiable securities.
726.109  Increase or reduction in the amount of security.
726.110  Filing of agreement and undertaking.
726.111  Notice of authorization to self-insure.
726.112  Reports required of self-insurer; examination of accounts 
of self-insurer.
726.113  Disclosure of confidential information.
726.114  Period of authorization as self-insurer; reauthorization.
726.115  Revocation of authorization to self-insure.

Subpart C--Insurance Contracts

726.201  Insurance contracts--generally.
726.202  Who may underwrite an operator's liability.
726.203  Federal Coal Mine Health and Safety Act endorsement.
726.204  Statutory policy provisions.
726.205  Other forms of endorsement and policies.
726.206  Terms of policies.
726.207  Discharge by the carrier of obligations and duties of 
operator.

Reports by Carrier

726.208  Report by carrier of issuance of policy or endorsement.
726.209  Report; by whom sent.
726.210  Agreement to be bound by report.
726.211  Name of one employer only shall be given in each report.
726.212  Notice of cancellation.
726.213  Reports by carriers concerning the payment of benefits.

Subpart D--Civil Money Penalties

726.300  Purpose and Scope.
726.301  Definitions.
726.302  Determination of penalty.
726.303  Notification; investigation.
726.304  Notice of initial assessment.
726.305  Contents of notice.
726.306  Finality of administrative assessment.
726.307  Form of notice of contest and request for hearing.
726.308  Service and computation of time.
726.309  Referral to the Office of Administrative Law Judges.
726.310  Appointment of Administrative Law Judge and notification of 
hearing date.
726.311  Evidence.
726.312  Burdens of proof.
726.313  Decision and Order of Administrative Law Judge.
726.314  Review by the Secretary.
726.315  Contents.
726.316  Filing and Service.
726.317  Discretionary Review.
726.318  Final decision of the Secretary.
726.319  Retention of official record.
726.320  Collection and recovery of penalty.

    Authority: 5 U.S.C. 301, Reorganization Plan No. 6 of 1950, 15 
FR 3174, 30 U.S.C. 901 et seq., 902(f), 925, 932, 933, 934, 936, 
945; 33 U.S.C. 901 et seq., Secretary's Order 7-87, 52 FR 48466, 
Employment Standards Order No. 90-02.

Subpart A--General


Sec. 726.1  Statutory insurance requirements for coal mine operators.

    Section 423 of title IV of the Federal Coal Mine Health and Safety 
Act as amended (hereinafter the Act) requires each coal mine operator 
who is operating or has operated a coal mine in a State which is not 
included in the list published by the Secretary (see part 722 of this 
subchapter) to secure the payment of benefits for which he may be found 
liable under section 422 of the Act and the provisions of this 
subchapter by either:
    (a) Qualifying as a self-insurer, or
    (b) By subscribing to and maintaining in force a commercial 
insurance contract (including a policy or contract procured from a 
State agency).


Sec. 726.2  Purpose and scope of this part.

    (a) This part provides rules directing and controlling the 
circumstances under which a coal mine operator shall fulfill his 
insurance obligations under the Act.

[[Page 55063]]

    (b) This subpart A sets forth the scope and purpose of this part 
and generally describes the statutory framework within which this part 
is operative.
    (c) Subpart B of this part sets forth the criteria a coal mine 
operator must meet in order to qualify as a self-insurer.
    (d) Subpart C of this part sets forth the rules and regulations of 
the Secretary governing contracts of insurance entered into by coal 
operators and commercial insurance sources for the payment of black 
lung benefits under part C of the Act.
    (e) Subpart D of this part sets forth the rules governing the 
imposition of civil money penalties on coal mine operators that fail to 
secure their liability under the Act.


Sec. 726.3  Relationship of this part to other parts in this 
subchapter.

    (a) This part 726 implements and effectuates responsibilities for 
the payment of black lung benefits placed upon coal operators by 
sections 415 and 422 of the Act and the regulations of the Secretary in 
this subchapter, particularly those set forth in part 725 of this 
subchapter. All definitions, usages, procedures, and other rules 
affecting the responsibilities of coal operators prescribed in part 725 
of this subchapter are applicable, as appropriate, to this part 726.
    (b) If the provisions of this part appear to conflict with any 
provision of any other part in this subchapter, the apparently 
conflicting provisions should be read harmoniously to the fullest 
extent possible. If a harmonious interpretation is not possible, the 
provisions of this part should be applied to govern the 
responsibilities and obligations of coal mine operators to secure the 
payment of black lung benefits as prescribed by the Act. The provisions 
of this part do not apply to matters falling outside the scope of this 
part.


Sec. 726.4  Who must obtain insurance coverage.

    (a) Section 423 of part C of title IV of the Act requires each 
operator of a coal mine or former operator in any State which does meet 
the requirements prescribed by the Secretary pursuant to section 411 of 
part C of title IV of the Act to self-insure or obtain a policy or 
contract of insurance to guarantee the payment of benefits for which 
such operator may be adjudicated liable under section 422 of the Act. 
In enacting sections 422 and 423 of the Act Congress has unambiguously 
expressed its intent that coal mine operators bear the cost of 
providing the benefits established by part C of title IV of the Act. 
Section 3 of the Act defines an ``operator'' as any owner, lessee, or 
other person who operates, controls, or supervises a coal mine.
    (b) Section 422(i) of the Act clearly recognizes that any 
individual or business entity who is or was a coal mine operator may be 
found liable for the payment of pneumoconiosis benefits after December 
31, 1973. Within this framework it is clear that the Secretary has wide 
latitude for determining which operator shall be liable for the payment 
of part C benefits. Comprehensive standards have been promulgated in 
subpart G of part 725 of this subchapter for the purpose of guiding the 
Secretary in making such determination. It must be noted that pursuant 
to these standards any parent or subsidiary corporation, any individual 
or corporate partner, or partnership, any lessee or lessor of a coal 
mine, any joint venture or participant in a joint venture, any 
transferee or transferor of a corporation or other business entity, any 
former, current, or future operator or any other form of business 
entity which has had or will have a substantial and reasonably direct 
interest in the operation of a coal mine may be determined liable for 
the payment of pneumoconiosis benefits after December 31, 1973. The 
failure of any such business entity to self-insure or obtain a policy 
or contract of insurance shall in no way relieve such business entity 
of its obligation to pay pneumoconiosis benefits in respect of any case 
in which such business entity's responsibility for such payments has 
been properly adjudicated. Any business entity described in this 
section shall take appropriate steps to insure that any liability 
imposed by part C of the Act on such business entity shall be 
dischargeable.


Sec. 726.5  Effective date of insurance coverage.

    Pursuant to section 422(c) of part C of title IV of the Act, no 
coal mine operator shall be responsible for the payment of any benefits 
whatsoever for any period prior to January 1, 1974. However, coal mine 
operators shall be liable as of January 1, 1974, for the payment of 
benefits in respect of claims which were filed under section 415 of 
part B of title IV of the Act after July 1, 1973. Section 415(a)(3) 
requires the Secretary to notify any operator who may be liable for the 
payment of benefits under part C of title IV beginning on January 1, 
1974, of the pendency of a section 415 claim. Section 415(a)(5) 
declares that any operator who has been notified of the pendency of a 
section 415 claim shall be bound by the determination of the Secretary 
as to such operator's liability and as to the claimant's entitlement to 
benefits as if the claim were filed under part C of title IV of the Act 
and section 422 thereof had been applicable to such operator. 
Therefore, even though no benefit payments shall be required of an 
operator prior to January 1, 1974, the liability for these payments may 
be finally adjudicated at any time after July 1, 1973. Neither the 
failure of an operator to exercise his right to participate in the 
adjudication of such a claim nor the failure of an operator to obtain 
insurance coverage in respect of claims filed after June 30, 1973, but 
before January 1, 1974, shall excuse such operator from his liability 
for the payment of benefits to such claimants under part C of title IV 
of the Act.


Sec. 726.6  The Office of Workers' Compensation Programs.

    The Office of Workers' Compensation Programs (hereinafter the 
Office or OWCP) is that subdivision of the Employment Standards 
Administration of the U.S. Department of Labor which has been empowered 
by the Secretary of Labor to carry out his functions under section 415 
and part C of title IV of the Act. As noted throughout this part 726 
the Office shall perform a number of functions with respect to the 
regulation of both the self-insurance and commercial insurance 
programs. All correspondence with or submissions to the Office should 
be addressed as follows: Division of Coal Mine Workers' Compensation, 
Office of Workers' Compensation Programs, Employment Standards 
Administration, U.S. Department of Labor, Washington, D.C. 20210.


Sec. 726.7  Forms, submission of information.

    Any information required by this part 726 to be submitted to the 
Office of Workmen's Compensation Programs or any other office or 
official of the Department of Labor, shall be submitted on such forms 
or in such manner as the Secretary deems appropriate and has authorized 
from time to time for such purposes.


Sec. 726.8  Definitions.

    In addition to the definitions provided in part 725 of this 
subchapter, the following definitions apply to this part:
    (a) Director means the Director, Office of Workers' Compensation 
Programs, and includes any official of the Office of Workers' 
Compensation Programs authorized by the Director to perform any of the 
functions of the Director under this part and part 725 of this 
subchapter.

[[Page 55064]]

    (b) Person includes any individual, partnership, corporation, 
association, business trust, legal representative, or organized group 
of persons.
    (c) Secretary means the Secretary of Labor or such other official 
as the Secretary shall designate to carry out any responsibility under 
this part.
    (d) The terms employ and employment shall be construed as broadly 
as possible, and shall include any relationship under which an operator 
retains the right to direct, control, or supervise the work performed 
by a miner, or any other relationship under which an operator derives a 
benefit from the work performed by a miner. Any individuals who 
participate with one or more persons in the mining of coal, such as 
owners, proprietors, partners, and joint venturers, whether they are 
compensated by wages, salaries, piece rates, shares, profits, or by any 
other means, shall be deemed employees. It is the specific intention of 
this paragraph to disregard any financial arrangement or business 
entity devised by the actual owners or operators of a coal mine or coal 
mine-related enterprise to avoid the payment of benefits to miners who, 
based upon the economic reality of their relationship to this 
enterprise, are, in fact, employees of the enterprise.

Subpart B--Authorization of Self-Insurers


Sec. 726.101  Who may be authorized to self-insure.

    (a) Pursuant to section 423 of part C of title IV of the Act, 
authorization to self-insure against liability incurred by coal mine 
operators on account of the total disability or death of miners due to 
pneumoconiosis may be granted or denied in the discretion of the 
Secretary. The provisions of this subpart describe the minimum 
requirements established by the Secretary for determining whether any 
particular coal mine operator shall be authorized as a self-insurer.
    (b) The minimum requirements which must be met by any operator 
seeking authorization to self-insure are as follows:
    (1) Such operator must, at the time of application, have been in 
the business of mining coal for at least the 3 consecutive years prior 
to such application; and,
    (2) Such operator must demonstrate the administrative capacity to 
fully service such claims as may be filed against him; and,
    (3) Such operator's average current assets over the preceding 3 
years (in computing average current assets such operator shall not 
include the amount of any negotiable securities which he may be 
required to deposit to secure his obligations under the Act) must 
exceed current liabilities by the sum of--
    (i) The estimated aggregate amount of black lung benefits 
(including medical benefits) which such operator may expect to be 
required to pay during the ensuing year; and,
    (ii) The annual premium cost for any indemnity bond purchased; and
    (4) Such operator must obtain security, in a form approved by the 
Office (see Sec. 726.104) and in an amount to be determined by the 
Office (see Sec. 726.105); and
    (5) No operator with fewer than 5 full-time employee-miners shall 
be permitted to self-insure.
    (c) No operator who is unable to meet the requirements of this 
section should apply for authorization to self-insure and no 
application for self-insurance shall be approved by the Office until 
such time as the amount prescribed by the Office has been secured as 
prescribed in this subpart.


Sec. 726.102  Application for authority to become a self-insurer; how 
filed; information to be submitted.

    (a) How filed. Application for authority to become a self-insurer 
shall be addressed to the Office and be made on a form provided by the 
Office. Such application shall be signed by the applicant over his 
typewritten name and if the applicant is not an individual, by the 
principal officer of the applicant duly authorized to make such 
application over his typewritten name and official designation and 
shall be sworn to by him. If the applicant is a corporation, the 
corporate seal shall be affixed. The application shall be filed with 
the Office in Washington, DC.
    (b) Information to be submitted. Each application for authority to 
self-insure shall contain:
    (1) A statement of the employer's payroll report for each of the 
preceding 3 years;
    (2) A statement of the average number of employees engaged in 
employment within the purview of the Act for each of the preceding 3 
years;
    (3) A list of the mine or mines to be covered by any particular 
self-insurance agreement. Each such mine or mines listed shall be 
described by name and reference shall be made to the Federal 
Identification Number assigned such mine by the Bureau of Mines, U.S. 
Department of the Interior;
    (4) A certified itemized statement of the gross and net assets and 
liabilities of the operator for each of the 3 preceding years in such 
manner as prescribed by the Office;
    (5) A statement demonstrating the applicant's administrative 
capacity to provide or procure adequate servicing for a claim including 
both medical and dollar claims; and
    (6) In addition to the aforementioned, the Office may in its 
discretion, require the applicant to submit such further information or 
such evidence as the Office may deem necessary to have in order to 
enable it to give adequate consideration to such application.
    (c) Who may file. An application for authorization to self-insure 
may be filed by any parent or subsidiary corporation, partner or 
partnership, party to a joint venture or joint venture, individual, or 
other business entity which may be determined liable for the payment of 
black lung benefits under part C of title IV of the Act, regardless of 
whether such applicant is directly engaged in the business of mining 
coal. However, in each case for which authorization to self-insure is 
granted, the agreement and undertaking filed pursuant to Sec. 726.110 
and the security deposit shall be respectively filed by and deposited 
in the name of the applicant only.


Sec. 726.103  Application for authority to self-insure; effect of 
regulations contained in this part.

    As appropriate, each of the regulations, interpretations and 
requirements contained in this part 726 including those described in 
subpart C of this part shall be binding upon each applicant under this 
subpart, and the applicant's consent to be bound by all requirements of 
the said regulations shall be deemed to be included in and a part of 
the application, as fully as though written therein.


Sec. 726.104  Action by the Office upon application of operator.

    (a) Upon receipt of a completed application for authorization to 
self-insure, the Office shall, after examination of the information 
contained in the application deny the applicant's request for 
authorization to self-insure or, determine the amount of security which 
must be given by the applicant to guarantee the payment of benefits and 
the discharge of all other obligations which may be required of such 
applicant under the Act.
    (b) The applicant shall thereafter be notified that he may give 
security in the amount fixed by the Office (see Sec. 726.105):
    (1) In the form of an indemnity bond with sureties satisfactory to 
the Office;
    (2) By a deposit of negotiable securities with a Federal Reserve 
Bank in compliance with Secs. 726.106(c) and 726.107;

[[Page 55065]]

    (3) In the form of a letter of credit issued by a financial 
institution satisfactory to the Office (except that a letter of credit 
shall not be sufficient by itself to satisfy a self-insurer's 
obligations under this part); or
    (4) By funding a trust pursuant to section 501(c)(21) of the 
Internal Revenue Code (26 U.S.C.).
    (c) Any applicant who cannot meet the security deposit requirements 
imposed by the Office should proceed to obtain a commercial policy or 
contract of insurance. Any applicant for authorization to self-insure 
whose application has been rejected or who believes that the security 
deposit requirements imposed by the Office are excessive may, in 
writing, request that the Office review its determination. A request 
for review should contain such information as may be necessary to 
support the request that the amount of security required be reduced.
    (d) Upon receipt of any such request the Office shall review its 
previous determination in light of any new or additional information 
submitted and inform the applicant whether or not a reduction in the 
amount of security initially required is warranted.


Sec. 726.105  Fixing the amount of security.

    The amount of security to be fixed and required by the Office shall 
be such as the Office shall deem to be necessary and sufficient to 
secure the performance by the applicant of all obligations imposed upon 
him as an operator by the Act. In determining the amount of security 
required, the factors that the Office will consider include, but are 
not limited to, the operator's net worth, the existence of a guarantee 
by a parent corporation, and the operator's existing liability for 
benefits. Other factors such as the Office may deem relevant to any 
particular case shall be considered. The amount of security which shall 
be required may be increased or decreased when experience or changed 
conditions so warrant.


Sec. 726.106  Type of security.

    (a) The Office shall determine the type or types of security which 
an applicant shall or may procure. (See Sec. 726.104(b).)
    (b) In the event the indemnity bond option is selected such 
indemnity bond shall be in such form and contain such provisions as the 
Office may prescribe: Provided, That only corporations may act as 
sureties on such indemnity bonds. In each case in which the surety on 
any such bond is a surety company, such company must be one approved by 
the U.S. Treasury Department under the laws of the United States and 
the applicable rules and regulations governing bonding companies (see 
Department of Treasury's Circular-570).
    (c) An applicant for authorization to self-insure authorized to 
deposit negotiable securities to secure his obligations under the Act 
in the amount fixed by the Office shall deposit any negotiable 
securities acceptable as security for the deposit of public moneys of 
the United States under regulations issued by the Secretary of the 
Treasury. (See 31 CFR part 225.) The approval, valuation, acceptance, 
and custody of such securities is hereby committed to the several 
Federal Reserve Banks and the Treasurer of the United States.


Sec. 726.107  Deposits of negotiable securities with Federal Reserve 
banks or the Treasurer of the United States; authority to sell such 
securities; interest thereon.

    Deposits of securities provided for by the regulations in this part 
shall be made with any Federal Reserve bank or any branch of a Federal 
Reserve bank designated by the Office, or the Treasurer of the United 
States, and shall be held subject to the order of the Office with power 
in the Office, in its discretion in the event of default by the said 
self-insurer, to collect the interest as it may become due, to sell the 
securities or any of them as may be required to discharge the 
obligations of the self-insurer under the Act and to apply the proceeds 
to the payment of any benefits or medical expenses for which the self-
insurer may be liable. The Office may, however, whenever it deems it 
unnecessary to resort to such securities for the payment of benefits, 
authorize the self-insurer to collect interest on the securities 
deposited by him.


Sec. 726.108  Withdrawal of negotiable securities.

    No withdrawal of negotiable securities deposited by a self-insurer, 
shall be made except upon authorization by the Office. A self-insurer 
discontinuing business, or discontinuing operations within the purview 
of the Act, or providing security for the payment of benefits by 
commercial insurance under the provisions of the Act may apply to the 
Office for the withdrawal of securities deposited under the regulations 
in this part. With such application shall be filed a sworn statement 
setting forth:
    (a) A list of all outstanding cases in which benefits are being 
paid, with the names of the miners and other beneficiaries, giving a 
statement of the amounts of benefits paid and the periods for which 
such benefits have been paid; and
    (b) A similar list of all pending cases in which no benefits have 
as yet been paid. In such cases withdrawals may be authorized by the 
Office of such securities as in the opinion of the Office may not be 
necessary to provide adequate security for the payment of outstanding 
and potential liabilities of such self-insurer under the Act.


Sec. 726.109  Increase or reduction in the amount of security.

    Whenever in the opinion of the Office the amount of security given 
by the self-insurer is insufficient to afford adequate security for the 
payment of benefits and medical expenses under the Act, the self-
insurer shall, upon demand by the Office, file such additional security 
as the Office may require. At any time upon application of a self-
insurer, or on the initiative of the Office, when in its opinion the 
facts warrant, the amount of security may be reduced. A self-insurer 
seeking such reduction shall furnish such information as the Office may 
request relative to his current affairs, the nature and hazard of the 
work of his employees, the amount of the payroll of his employees 
engaged in coal mine employment within the purview of the Act, his 
financial condition, and such other evidence as may be deemed material, 
including a record of payment of benefits made by him.


Sec. 726.110  Filing of agreement and undertaking.

    (a) In addition to the requirement that adequate security be 
procured as set forth in this subpart, the applicant for the 
authorization to self-insure shall as a condition precedent to 
receiving authorization to act as a self-insurer, execute and file with 
the Office an agreement and undertaking in a form prescribed and 
provided by the Office in which the applicant shall agree:
    (1) To pay when due, as required by the provisions of said Act, all 
benefits payable on account of total disability or death of any of its 
employee-miners within the purview of the Act;
    (2) In such cases to furnish medical, surgical, hospital, and other 
attendance, treatment, and care as required by the provisions of the 
Act;
    (3) To provide security in a form approved by the Office (see 
Sec. 726.104) and in an amount established by the Office (see 
Sec. 726.105), accordingly as elected in the application;
    (4) To authorize the Office to sell any negotiable securities so 
deposited or any part thereof and from the proceeds thereof to pay such 
benefits, medical, and other expenses and any accrued

[[Page 55066]]

penalties imposed by law as it may find to be due and payable.
    (b) At such time when an applicant has provided the requisite 
security, such applicant shall send a completed agreement and 
undertaking together with satisfactory proof that his obligations and 
liabilities under the Act have been secured to the Office in 
Washington, D.C.


Sec. 726.111  Notice of authorization to self-insure.

    Upon receipt of a completed agreement and undertaking and 
satisfactory proof that adequate security has been provided an 
applicant for authorization to self-insure shall be notified by the 
Office in writing, that he is authorized to self-insure to meet the 
obligations imposed upon such applicant by section 415 and part C of 
title IV of the Act.


Sec. 726.112  Reports required of self-insurer; examination of accounts 
of self-insurer.

    (a) Each operator who has been authorized to self-insure under this 
part shall submit to the Office reports containing such information as 
the Office may from time to time require or prescribe.
    (b) Whenever it deems it to be necessary, the Office may inspect or 
examine the books of account, records, and other papers of a self-
insurer for the purpose of verifying any financial statement submitted 
to the Office by the self-insurer or verifying any information 
furnished to the Office in any report required by this section, or any 
other section of the regulations in this part, and such self-insurer 
shall permit the Office or its duly authorized representative to make 
such an inspection or examination as the Office shall require. In lieu 
of this requirement the Office may in its discretion accept an adequate 
report of a certified public accountant.
    (c) Failure to submit or make available any report or information 
requested by the Office from an authorized self-insurer pursuant to 
this section may, in appropriate circumstances result in a revocation 
of the authorization to self-insure.


Sec. 726.113  Disclosure of confidential information.

    Any financial information or records, or other information relating 
to the business of an authorized self-insurer or applicant for the 
authorization of self-insurance obtained by the Office shall be exempt 
from public disclosure to the extent provided in 5 U.S.C. 552(b) and 
the applicable regulations of the Department of Labor promulgated 
thereunder. (See 29 CFR part 70.)


Sec. 726.114  Period of authorization as self-insurer; reauthorization.

    (a) No initial authorization as a self-insurer shall be granted for 
a period in excess of 18 months. A self-insurer who has made an 
adequate deposit of negotiable securities in compliance with 
Secs. 726.106(c) and 726.107 will be reauthorized for the ensuing 
fiscal year without additional security if the Office finds that his 
experience as a self-insurer warrants such action. If it is determined 
that such self-insurer's experience indicates a need for the deposit of 
additional security, no reauthorization shall be issued for the ensuing 
fiscal year until such time as the Office receives satisfactory proof 
that the requisite amount of additional securities have been deposited. 
A self-insurer who currently has on file an indemnity bond, will 
receive from the Office each year a bond form for execution in 
contemplation of reauthorization, and the submission of such bond duly 
executed in the amount indicated by the Office will be deemed and 
treated as such self-insurer's application for reauthorization for the 
ensuing Federal fiscal year.
    (b) In each case for which there is an approved change in the 
amount of security provided, a new agreement and undertaking shall be 
executed.
    (c) Each operator authorized to self-insure under this part shall 
apply for reauthorization for any period during which it engages in the 
operation of a coal mine and for additional periods after it ceases 
operating a coal mine. Upon application by the operator, accompanied by 
proof that the security posted by the operator is sufficient to secure 
all benefits potentially payable to miners formerly employed by the 
operator, the Office shall issue a certification that the operator is 
exempt from the requirements of this part based on its prior operation 
of a coal mine. The provisions of subpart D of this part shall be 
applicable to any operator that fails to apply for reauthorization in 
accordance with the provisions of this section.


Sec. 726.115  Revocation of authorization to self-insure.

    The Office may for good cause shown suspend or revoke the 
authorization of any self-insurer. Failure by a self-insurer to comply 
with any provision or requirement of law or of the regulations in this 
part, or with any lawful order or communication of the Office, or the 
failure or insolvency of the surety on his indemnity bond, or 
impairment of financial responsibility of such self-insurer, may be 
deemed good cause for such suspension or revocation.

Subpart C--Insurance Contracts


Sec. 726.201  Insurance contracts--generally.

    Each operator of a coal mine who has not obtained authorization as 
a self-insurer shall purchase a policy or enter into a contract with a 
commercial insurance carrier or State agency. Pursuant to authority 
contained in sections 422(a) and 423 (b) and (c) of part C of title IV 
of the Act, this subpart describes a number of provisions which are 
required to be incorporated in a policy or contract of insurance 
obtained by a coal mine operator for the purpose of meeting the 
responsibility imposed upon such operator by the Act in respect of the 
total disability or death of miners due to pneumoconiosis.


Sec. 726.202  Who may underwrite an operator's liability.

    Each coal mine operator who is not authorized to self-insure shall 
insure and keep insured the payment of benefits as required by the Act 
with any stock company or mutual company or association, or with any 
other person, or fund, including any State fund while such company, 
association, person, or fund is authorized under the law of any State 
to insure workmen's compensation.


Sec. 726.203  Federal Coal Mine Health and Safety Act endorsement.

    (a) The following form of endorsement shall be attached and 
applicable to the standard workmen's compensation and employer's 
liability policy prepared by the National Council on Compensation 
Insurance affording coverage under the Federal Coal Mine Health and 
Safety Act of 1969, as amended:

    It is agreed that: (1) With respect to operations in a State 
designated in item 3 of the declarations, the unqualified term 
``workmen's compensation law'' includes part C of title IV of the 
Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. section 
931-936, and any laws amendatory thereto, or supplementary thereto, 
which may be or become effective while this policy is in force, and 
definition (a) of Insuring Agreement III is amended accordingly; (2) 
with respect to such insurance as is afforded by this endorsement, 
(a) the States, if any, named below, shall be deemed to be 
designated in item 3 of the declaration; (b) Insuring Agreement 
IV(2) is amended to read ``by disease caused or aggravated by 
exposure of which the last day of the last exposure, in the 
employment of the insured, to conditions causing the disease occurs 
during the policy period, or occurred prior to (effective date) and 
claim based on such disease is first filed against the insured 
during the policy period.''

    (b) The term ``effective date'' as used in the endorsement 
provisions

[[Page 55067]]

contained in paragraph (a) of this section shall be construed to mean 
the effective date of the first policy or contract of insurance 
procured by an operator for purposes of meeting the obligations imposed 
on such operator by section 423 of part C of title IV of the Act.
    (c) The Act contains a number of provisions and imposes a number of 
requirements on operators which differ in varying degrees from 
traditional workmen's compensation concepts. To avoid unnecessary 
administrative delays and expense which might be occasioned by the 
drafting of an entirely new standard workmen's compensation policy 
specially tailored to the Act, the Office has determined that the 
existing standard workmen's compensation policy subject to the 
endorsement provisions contained in paragraph (a) of this section shall 
be acceptable for purposes of writing commercial insurance coverage 
under the Act. However, to avoid undue disputes over the meaning of 
certain policy provisions and in accordance with the authority 
contained in section 423(b)(3) of the Act, the Office has determined 
that the following requirements shall be applicable to all commercial 
insurance policies obtained by an operator for the purpose of insuring 
any liability incurred pursuant to the Act:
    (1) Operator liability. (i) Section 415 and part C of title IV of 
the Act provide coverage for total disability or death due to 
pneumoconiosis to all claimants who meet the eligibility requirements 
imposed by the Act. Section 422 of the Act and the regulations duly 
promulgated thereunder (part 725 of this subchapter) set forth the 
conditions under which a coal mine operator may be adjudicated liable 
for the payment of benefits to an eligible claimant for any period 
subsequent to December 31, 1973.
    (ii) Section 422(c) of the Act prescribes that except as provided 
in 422(i) (see paragraph (c)(2) of this section) an operator may be 
adjudicated liable for the payment of benefits in any case if the total 
disability or death due to pneumoconiosis upon which the claim is 
predicated arose at least in part out of employment in a mine in any 
period during which it was operated by such operator. The Act does not 
require that such employment which contributed to or caused the total 
disability or death due to pneumoconiosis occur subsequent to any 
particular date in time. The Secretary in establishing a formula for 
determining the operator liable for the payment of benefits (see 
subpart D of part 725 of this subchapter) in respect of any particular 
claim, must therefore, within the framework and intent of title IV of 
the Act find in appropriate cases that an operator is liable for the 
payment of benefits for some period after December 31, 1973, even 
though the employment upon which an operator's liability is based 
occurred prior to July 1, 1973, or prior to the effective date of the 
Act or the effective date of any amendments thereto, or prior to the 
effective date of any policy or contract of insurance obtained by such 
operator. The endorsement provisions contained in paragraph (a) of this 
section shall be construed to incorporate these requirements in any 
policy or contract of insurance obtained by an operator to meet the 
obligations imposed on such operator by section 423 of the Act.
    (2) Successor liability. Section 422(i) of part C of title IV of 
the Act requires that a coal mine operator who after December 30, 1969, 
acquired his mine or substantially all of the assets thereof from a 
person who was an operator of such mine on or after December 30, 1969, 
shall be liable for and shall secure the payment of benefits which 
would have been payable by the prior operator with respect to miners 
previously employed in such mine if the acquisition had not occurred 
and the prior operator had continued to operate such mine. In the case 
of an operator who is determined liable for the payment of benefits 
under section 422(i) of the Act and part 725 of this subchapter, such 
liability shall accrue to such operator regardless of the fact that the 
miner on whose total disability or death the claim is predicated was 
never employed by such operator in any capacity. The endorsement 
provisions contained in paragraph (a) of this section shall be 
construed to incorporate this requirement in any policy or contract of 
insurance obtained by an operator to meet the obligations imposed on 
such operator by section 423 of the Act.
    (3) Medical eligibility. Pursuant to section 422(h) of part C of 
title IV of the Act and the regulations described therein (see subpart 
D of part 410 of this title) benefits shall be paid to eligible 
claimants on account of total disability or death due to pneumoconiosis 
and in cases where the miner on whose death a claim is predicated was 
totally disabled by pneumoconiosis at the time of his death regardless 
of the cause of such death. The endorsement provisions contained in 
paragraph (a) of this section shall be construed to incorporate these 
requirements in any policy or contract of insurance obtained by an 
operator to meet the obligations imposed on such operator by section 
423 of the Act.
    (4) Payment of benefits, rates. Section 422(c) of the Act by 
incorporating section 412(a) of the Act requires the payment of 
benefits at a rate equal to 50 per centum of the minimum monthly 
payment to which a Federal employee in grade GS-2, who is totally 
disabled is entitled at the time of payment under Chapter 81 of title 
5, United States Code. These benefits are augmented on account of 
eligible dependents as appropriate (see section 412(a) of part B of 
title IV of the Act). Since the dollar amount of benefits payable to 
any beneficiary is required to be computed at the time of payment such 
amounts may be expected to increase from time to time as changes in the 
GS-2 grade are enacted into law. The endorsement provisions contained 
in paragraph (a) of this section shall be construed to incorporate in 
any policy or contract of insurance obtained by an operator to meet the 
obligations imposed on such operator by section 423 of the Act, the 
requirement that the payment of benefits to eligible beneficiaries 
shall be made in such dollar amounts as are prescribed by section 
412(a) of the Act computed at the time of payment.
    (5) Compromise and waiver of benefits. Section 422(a) of part C of 
title IV of the Act by incorporating sections 15(b) and 16 of the 
Longshoremen's and Harbor Workers' Compensation Act (33 U.S.C. 915(b) 
and 916) prohibits the compromise and/or waiver of claims for benefits 
filed or benefits payable under section 415 and part C of title IV of 
the Act. The endorsement provisions contained in paragraph (a) of this 
section shall be construed to incorporate these prohibitions in any 
policy or contract of insurance obtained by an operator to meet the 
obligations imposed on such operator by section 423 of the Act.
    (6) Additional requirements. In addition to the requirements 
described in paragraph (c)(1) through (5) of this section, the 
endorsement provisions contained in paragraph (a) of this section 
shall, to the fullest extent possible, be construed to bring any policy 
or contract of insurance entered into by an operator for the purpose of 
insuring such operator's liability under part C of title IV of the Act 
into conformity with the legal requirements placed upon such operator 
by section 415 and part C of title IV of the Act and parts 720 and 725 
of this subchapter.
    (d) Nothing in this section shall relieve any operator or carrier 
of the duty to comply with any State workmen's compensation law, except

[[Page 55068]]

insofar as such State law is in conflict with the provisions of this 
section.


Sec. 726.204  Statutory policy provisions.

    Pursuant to section 423(b) of part C of title IV of the Act each 
policy or contract of insurance obtained to comply with the 
requirements of section 423(a) of the Act must contain or shall be 
construed to contain--
    (a) A provision to pay benefits required under section 422 of the 
Act, notwithstanding the provisions of the State workmen's compensation 
law which may provide for lesser payments; and,
    (b) A provision that insolvency or bankruptcy of the operator or 
discharge therein (or both) shall not relieve the carrier from 
liability for such payments.


Sec. 726.205  Other forms of endorsement and policies.

    Forms of endorsement or policies other than that described in 
Sec. 726.203 may be entered into by operators to insure their liability 
under the Act. However, any form of endorsement or policy which 
materially alters or attempts to materially alter an operator's 
liability for the payment of any benefits under the Act shall be deemed 
insufficient to discharge such operator's duties and responsibilities 
as prescribed in part C of title IV of the Act. In any event, the 
failure of an operator to obtain an adequate policy or contract of 
insurance shall not affect such operator's liability for the payment of 
any benefits for which he is determined liable.


Sec. 726.206  Terms of policies.

    A policy or contract of insurance shall be issued for the term of 1 
year from the date that it becomes effective, but if such insurance be 
not needed except for a particular contract or operation, the term of 
the policy may be limited to the period of such contract or operation.


Sec. 726.207  Discharge by the carrier of obligations and duties of 
operator.

    Every obligation and duty in respect of payment of benefits, the 
providing of medical and other treatment and care, the payment or 
furnishing of any other benefit required by the Act and in respect of 
the carrying out of the administrative procedure required or imposed by 
the Act or the regulations in this part or part 725 of this subchapter 
upon an operator shall be discharged and carried out by the carrier as 
appropriate. Notice to or knowledge of an operator of the occurrence of 
total disability or death due to pneumoconiosis shall be notice to or 
knowledge of such carrier. Jurisdiction of the operator by a district 
director, administrative law judge, the Office, or appropriate 
appellate authority under the Act shall be jurisdiction of such 
carrier. Any requirement under any benefits order, finding, or decision 
shall be binding upon such carrier in the same manner and to the same 
extent as upon the operator.

Reports by Carrier


Sec. 726.208  Report by carrier of issuance of policy or endorsement.

    Each carrier shall report to the Office each policy and endorsement 
issued, canceled, or renewed by it to an operator. The report shall be 
made in such manner and on such form as the Office may require.


Sec. 726.209  Report; by whom sent.

    The report of issuance, cancellation, or renewal of a policy and 
endorsement provided for in Sec. 726.208 shall be sent by the home 
office of the carrier, except that any carrier may authorize its agency 
or agencies to make such reports to the Office.


Sec. 726.210  Agreement to be bound by report.

    Every carrier seeking to write insurance under the provisions of 
the Act shall be deemed to have agreed that the acceptance by the 
Office of a report of the issuance or renewal of a policy of insurance, 
as provided for by Sec. 726.208 shall bind the carrier to full 
liability for the obligations under the Act of the operator named in 
said report. It shall be no defense to this agreement that the carrier 
failed or delayed to issue, cancel, or renew the policy to the operator 
covered by this report.


Sec. 726.211  Name of one employer only shall be given in each report.

    A separate report of the issuance or renewal of a policy and 
endorsement, provided for by Sec. 726.208, shall be made for each 
operator covered by a policy. If a policy is issued or renewed insuring 
more than one operator, a separate report for each operator so covered 
shall be sent to the Office with the name of only one operator on each 
such report.


Sec. 726.212  Notice of cancellation.

    Cancellation of a contract or policy of insurance issued under 
authority of the Act shall not become effective otherwise than as 
provided by 33 U.S.C. 936(b); and notice of a proposed cancellation 
shall be given to the Office and to the operator in accordance with the 
provisions of 33 U.S.C. 912(c), 30 days before such cancellation is 
intended to be effective (see section 422(a) of part C of title IV of 
the Act).


Sec. 726.213  Reports by carriers concerning the payment of benefits.

    Pursuant to 33 U.S.C. 914(c) as incorporated by section 422(a) of 
part C of title IV of the Act and Sec. 726.207 each carrier issuing a 
policy or contract of insurance under the Act shall upon making the 
first payment of benefits and upon the suspension of any payment in any 
case, immediately notify the Office in accordance with a form 
prescribed by the Office that payment of benefit has begun or has been 
suspended as the case may be. In addition, each such carrier shall at 
the request of the Office submit to the Office such additional 
information concerning policies or contracts of insurance issued to 
guarantee the payment of benefits under the Act and any benefits paid 
thereunder, as the Office may from time to time require to carry out 
its responsibilities under the Act.

Subpart D--Civil Money Penalties


Sec. 726.300  Purpose and scope.

    Any operator which is required to secure the payment of benefits 
under section 423 of the Act and Sec. 726.4 and which fails to secure 
such benefits shall be subject to a civil penalty of not more than 
$1,000 for each day during which such failure occurs. If the operator 
is a corporation, the president, secretary, and treasurer of the 
operator shall also be severally liable for the penalty based on the 
operator's failure to secure the payment of benefits. This subpart 
defines those terms necessary for administration of the civil money 
penalty provisions, describes the criteria for determining the amount 
of penalty to be assessed, and sets forth applicable procedures for the 
assessment and contest of penalties.


Sec. 726.301  Definitions.

    In addition to the definitions provided in part 725 of this 
subchapter and Sec. 726.8, the following definitions apply to this 
subpart:
    (a) Division Director means the Director, Division of Coal Mine 
Workers' Compensation, Office of Workers' Compensation Programs, 
Employment Standards Administration, or such other official authorized 
by the Division Director to perform any of the functions of the 
Division Director under this subpart.
    (b) President, secretary, or treasurer means the officers of a 
corporation as designated pursuant to the laws and regulations of the 
state in which the corporation is incorporated or, if that state does 
not require the designation of such officers, to the employees of a 
company who are performing the work

[[Page 55069]]

usually performed by such officers in the state in which the 
corporation's principal place of business is located.
    (c) Principal means any person who has an ownership interest in an 
operator that is not a corporation, and shall include, but is not 
limited to, partners, sole proprietors, and any other person who 
exercises control over the operation of a coal mine.


Sec. 726.302  Determination of penalty.

    (a) The following method shall be used for determining the amount 
of any penalty assessed under this subpart.
    (b) The penalty shall be determined by multiplying the daily base 
penalty amount or amounts, determined in accordance with the formula 
set forth in this section, by the number of days in the period during 
which the operator is subject to the security requirements of section 
423 of the Act and Sec. 726.4, and fails to secure its obligations 
under the Act. The period during which an operator is subject to 
liability for a penalty for failure to secure its obligations shall be 
deemed to commence on the first day on which the operator met the 
definition of the term ``operator'' as set forth in Sec. 725.101 of 
this subchapter. The period shall be deemed to continue even where the 
operator has ceased coal mining and any related activity, unless the 
operator secured its liability for all previous periods through a 
policy or policies of insurance obtained in accordance with subpart C 
of this part or has obtained a certification of exemption in accordance 
with the provisions of Sec. 726.114.
    (c)(1) A daily base penalty amount shall be determined for all 
periods up to and including the 10th day after the operator's receipt 
of the notification sent by the Director pursuant to Sec. 726.303, 
during which the operator failed to secure its obligations under 
section 423 of the Act and Sec. 726.4.
    (2)(i) The daily base penalty amount shall be determined based on 
the number of persons employed in coal mine employment by the operator, 
or engaged in coal mine employment on behalf of the operator, on each 
day of the period defined by this section, and shall be computed as 
follows:

------------------------------------------------------------------------
                                                                Penalty
                          Employees                            (per day)
------------------------------------------------------------------------
Less than 25................................................        $100
25 to 50....................................................         200
51 to 100...................................................         300
More than 100...............................................         400
------------------------------------------------------------------------

    (ii) For any period after the operator has ceased coal mining and 
any related activity, the daily penalty amount shall be computed based 
on the largest number of persons employed in coal mine employment by 
the operator, or engaged in coal mine employment on behalf of the 
operator, on any day while the operator was engaged in coal mining or 
any related activity. For purposes of this section, it shall be 
presumed, in the absence of evidence to the contrary, that any person 
employed by an operator is employed in coal mine employment.
    (3) In any case in which the operator had prior notice of the 
applicability of the Black Lung Benefits Act to its operations, the 
daily base penalty amounts set forth in paragraph (b) of this section 
shall be doubled. Prior notice may be inferred where the operator, or 
an entity in which the operator or any of its principals had an 
ownership interest, or an entity in which the operator's president, 
secretary, or treasurer were employed:
    (i) Previously complied with section 423 of the Act and Sec. 726.4;
    (ii) Was notified of its obligation to comply with section 423 of 
the Act and Sec. 726.4; or
    (iii) Was notified of its potential liability for a claim filed 
under the Black Lung Benefits Act pursuant to Sec. 725.407 of this 
subchapter.
    (4) Commencing with the 11th day after the operator's receipt of 
the notification sent by the Director pursuant to Sec. 726.303, the 
daily base penalty amounts set forth in paragraph (b) shall be 
increased by $100.
    (5) In any case in which the operator, or any of its principals, or 
an entity in which the operator's president, secretary, or treasurer 
were employed, has been the subject of a previous penalty assessment 
under this part, the daily base penalty amounts shall be increased by 
$300, up to a maximum daily base penalty amount of $1,000. The maximum 
daily base penalty amount applicable to any violation of Sec. 726.4 
that takes place after [effective date of the final rule] shall be 
$1,100.
    (d) The penalty shall be subject to reduction for any period during 
which the operator had a reasonable belief that it was not required to 
comply with section 423 of the Act and Sec. 726.4 or a reasonable 
belief that it had obtained insurance coverage to comply with section 
423 of the Act and Sec. 726.4. A notice of contest filed in accordance 
with Sec. 726.307 shall not be sufficient to establish a reasonable 
belief that the operator was not required to comply with the Act and 
regulations.


Sec. 726.303  Notification; investigation.

    (a) If the Director determines that an operator has violated the 
provisions of section 423 of the Act and Sec. 726.4, he or she shall 
notify the operator of its violation and request that the operator 
immediately secure the payment of benefits. Such notice shall be sent 
by certified mail.
    (b) The Director shall also direct the operator to supply 
information relevant to the assessment of a penalty. Such information, 
which shall be supplied within 30 days of the Director's request, may 
include:
    (1) The date on which the operator commenced its operation of a 
coal mine;
    (2) The number of persons employed by the operator since it began 
operating a coal mine and the dates of their employment; and
    (3) The identity and last known address:
    (i) In the case of a corporation, of all persons who served as 
president, secretary, and treasurer of the operator since it began 
operating a coal mine; or
    (ii) In the case of an operator which is not incorporated, of all 
persons who were principals of the operator since it began operating a 
coal mine;
    (c) In conducting any investigation of an operator under this 
subpart, the Division Director shall have all of the powers of a 
district director, as set forth at Sec. 725.351(a) of this subchapter. 
For purposes of Sec. 725.351(c), the Division Director shall be 
considered to sit in the District of Columbia.


Sec. 726.304  Notice of initial assessment.

    (a) After an operator receives notification under Sec. 726.303 and 
fails to secure its obligations for the period defined in 
Sec. 726.302(b), and following the completion of any investigation, the 
Director may issue a notice of initial penalty assessment in accordance 
with the criteria set forth in Sec. 726.302.
    (b)(1) A copy of such notice shall be sent by certified mail to the 
operator. If the operator is a corporation, a copy shall also be sent 
by certified mail to each of the persons who served as president, 
secretary, or treasurer of the operator during any period in which the 
operator was in violation of section 423 of the Act and Sec. 726.4.
    (2) Where service by certified mail is not accepted by any person, 
the notice shall be deemed received by that person on the date of 
attempted delivery. Where service is not accepted, the Director may 
exercise discretion to serve the notice by regular mail.


Sec. 726.305  Contents of notice.

    The notice required by Sec. 726.304 shall:
    (a) Identify the operator against whom the penalty is assessed as 
well as the name of any other person severally liable for such penalty;

[[Page 55070]]

    (b) Set forth the determination of the Director as to the amount of 
the penalty and the reason or reasons therefor;
    (c) Set forth the right of each person identified in paragraph (a) 
of this section to contest the notice and request a hearing before the 
Office of Administrative Law Judges;
    (d) Set forth the method for each person identified in paragraph 
(a) to contest the notice and request a hearing before the Office of 
Administrative Law Judges; and
    (e) Inform any affected person that in the absence of a timely 
contest and request for hearing received within 30 days of the date of 
receipt of the notice, the Director's assessment will become final and 
unappealable as to that person.


Sec. 726.306  Finality of administrative assessment.

    Except as provided in Sec. 726.307(c), if any person identified as 
potentially liable for the assessment does not, within 30 days after 
receipt of notice, contest the assessment, the Director's assessment 
shall be deemed final as to that person, and collection and recovery of 
the penalty may be instituted pursuant to Sec. 726.320.


Sec. 726.307  Form of notice of contest and request for hearing.

    (a) Any person desiring to contest the Director's notice of initial 
assessment shall request an administrative hearing pursuant to this 
part. The notice of contest shall be made in writing to the Director, 
Division of Coal Mine Workers' Compensation, Office of Workers' 
Compensation Programs, Employment Standards Administration, United 
States Department of Labor. The notice of contest must be received no 
later than 30 days after the date of receipt of the notice issued under 
Sec. 726.304. No additional time shall be added where service of the 
notice is made by mail.
    (b) The notice of contest shall:
    (1) Be dated;
    (2) Be typewritten or legibly written;
    (3) State the specific issues to be contested. In particular, the 
person must indicate his agreement or disagreement with:
    (i) The Director's determination that the person against whom the 
penalty is assessed is an operator subject to the requirements of 
section 423 of the Act and Sec. 726.4, or is the president, secretary, 
or treasurer of an operator, if the operator is a corporation.
    (ii) The Director's determination that the operator violated 
section 423 of the Act and Sec. 726.4 for the time period in question; 
and
    (iii) The Director's determination of the amount of penalty owed;
    (4) Be signed by the person making the request or an authorized 
representative of such person; and
    (5) Include the address at which such person or authorized 
representative desires to receive further communications relating 
thereto.
    (c) A notice of contest filed by the operator shall be deemed a 
notice of contest on behalf of all other persons to the Director's 
determinations that the operator is subject to section 423 of the Act 
and Sec. 726.4 and that the operator violated those provisions for the 
time period in question, and to the Director's determination of the 
amount of penalty owed. An operator may not contest the Director's 
determination that a person against whom the penalty is assessed is the 
president, secretary, or treasurer of the operator.
    (d) Failure to specifically identify an issue as contested pursuant 
to paragraph (b)(3) of this section shall be deemed a waiver of the 
right to contest that issue.


Sec. 726.308  Service and computation of time.

    (a) Service of documents under this part shall be made by delivery 
to the person, an officer of a corporation, or attorney of record, or 
by mailing the document to the last known address of the person, 
officer, or attorney. If service is made by mail, it shall be 
considered complete upon mailing. Unless otherwise provided in this 
subpart, service need not be made by certified mail. If service is made 
by delivery, it shall be considered complete upon actual receipt by the 
person, officer, or attorney; upon leaving it at the person's, 
officer's or attorney's office with a clerk or person in charge; upon 
leaving it at a conspicuous place in the office if no one is in charge; 
or by leaving it at the person's or attorney's residence.
    (b) If a complaint has been filed pursuant to Sec. 726.309, two 
copies of all documents filed in any administrative proceeding under 
this subpart shall be served on the attorneys for the Department of 
Labor. One copy shall be served on the Associate Solicitor, Black Lung 
Benefits Division, Room N-2605, Office of the Solicitor, U.S. 
Department of Labor, 200 Constitution Ave., N.W., Washington, DC 20210, 
and one copy on the attorney representing the Department in the 
proceeding.
    (c) The time allowed a party to file any response under this 
subpart shall be computed beginning with the day following the action 
requiring a response, and shall include the last day of the period, 
unless it is a Saturday, Sunday, or federally-observed holiday, in 
which case the time period shall include the next business day.


Sec. 726.309  Referral to the Office of Administrative Law Judges.

    (a) Upon receipt of a timely notice of contest filed in accordance 
with Sec. 726.307, the Director, by the Associate Solicitor for Black 
Lung Benefits or the Regional Solicitor for the Region in which the 
violation occurred, may file a complaint with the Office of 
Administrative Law Judges. The Director may, in the complaint, reduce 
the total penalty amount requested. A copy of the notice of initial 
assessment issued by the Director and all notices of contest filed in 
accordance with Sec. 726.307 shall be attached. A notice of contest 
shall be given the effect of an answer to the complaint for purposes of 
the administrative proceeding, subject to any amendment that may be 
permitted under this subpart and 29 CFR part 18.
    (b) A copy of the complaint and attachments thereto shall be served 
by counsel for the Director on the person who filed the notice of 
contest.
    (c) The Director, by counsel, may withdraw a complaint filed under 
this section at any time prior to the date upon which the decision of 
the Department becomes final by filing a motion with the Office of 
Administrative Law Judges or the Secretary, as appropriate. If the 
Director makes such a motion prior to the date on which an 
administrative law judge renders a decision in accordance Sec. 726.313, 
the dismissal shall be without prejudice to further assessment against 
the operator for the period in question.


Sec. 726.310  Appointment of Administrative Law Judge and notification 
of hearing date.

    Upon receipt from the Director of a complaint filed pursuant to 
Sec. 726.309, the Chief Administrative Law Judge shall appoint an 
Administrative Law Judge to hear the case. The Administrative Law Judge 
shall notify all interested parties of the time and place of the 
hearing.


Sec. 726.311  Evidence.

    (a) Except as specifically provided in this subpart, and to the 
extent they do not conflict with the provisions of this subpart, the 
Rules of Practice and Procedure for Administrative Hearings Before the 
Office of Administrative Law Judges established by the Secretary at 29 
CFR part 18 shall apply to administrative proceedings under this 
subpart.
    (b) Notwithstanding 29 CFR 18.1101(b)(2), subpart B of the Rules of 
Practice and Procedure for Administrative Hearings Before the Office of 
Administrative Law Judges shall apply to administrative

[[Page 55071]]

proceedings under this part, except that documents contained in 
Department of Labor files and offered on behalf of the Director shall 
be admissible in proceedings under this subpart without regard to their 
compliance with the Rules of Practice and Procedure.


Sec. 726.312  Burdens of proof.

    (a) The Director shall bear the burden of proving the existence of 
a violation, and the time period for which the violation occurred. To 
prove a violation, the Director must establish:
    (1) That the person against whom the penalty is assessed is an 
operator, or is the president, secretary, or treasurer of an operator, 
if such operator is a corporation.
    (2) That the operator violated section 423 of the Act and 
Sec. 726.4. The filing of a complaint shall be considered prima facie 
evidence that the Director has searched the records maintained by OWCP 
and has determined that the operator was not authorized to self-insure 
its liability under the Act for the time period in question, and that 
no insurance carrier reported coverage of the operator for the time 
period in question.
    (b) The Director need not produce further evidence in support of 
his burden of proof with respect to the issues set forth in paragraph 
(a) if no party contested them pursuant to Sec. 726.307(b)(3).
    (c) The Director shall bear the burden of proving the size of the 
operator as required by Sec. 726.302, except that if the Director has 
requested the operator to supply information with respect to its size 
under Sec. 726.303 and the operator has not fully complied with that 
request, it shall be presumed that the operator has more than 100 
employees engaged in coal mine employment. The person or persons liable 
for the assessment shall thereafter bear the burden of proving the 
actual number of employees engaged in coal mine employment.
    (d) The Director shall bear the burden of proving the operator's 
receipt of the notification required by Sec. 726.303, the operator's 
prior notice of the applicability of the Black Lung Benefits Act to its 
operations, and the existence of any previous assessment against the 
operator, the operator's principals, or the operator's officers.
    (e) The person or persons liable for an assessment shall bear the 
burden of proving the applicability of the mitigating factors listed in 
Sec. 726.302(d).


Sec. 726.313  Decision and order of Administrative Law Judge.

    (a) The Administrative Law Judge shall render a decision on the 
issues referred by the Director.
    (b) The decision of the Administrative Law Judge shall be limited 
to determining, where such issues are properly before him or her:
    (1) Whether the operator has violated section 423 of the Act and 
Sec. 726.4;
    (2) Whether other persons identified by the Director as potentially 
severally liable for the penalty were the president, treasurer, or 
secretary of the corporation during the time period in question; and
    (3) The appropriateness of the penalty assessed by the Director in 
light of the factors set forth in Sec. 726.302. The Administrative Law 
Judge shall not render determinations on the legality of a regulatory 
provision or the constitutionality of a statutory provision.
    (c) The decision of the Administrative Law Judge shall include a 
statement of findings and conclusions, with reasons and bases therefor, 
upon each material issue presented on the record. The decision shall 
also include an appropriate order which may affirm, reverse, or modify, 
in whole or in part, the determination of the Director.
    (d) The Administrative Law Judge shall serve copies of the decision 
on each of the parties by certified mail.
    (e) The decision of the Administrative Law Judge shall be deemed to 
have been issued on the date that it is rendered, and shall constitute 
the final order of the Secretary unless there is a request for 
reconsideration by the Administrative Law Judge pursuant to paragraph 
(f) of this section or a petition for review filed pursuant to 
Sec. 726.314.
    (f) Any party may request that the Administrative Law Judge 
reconsider his or her decision by filing a motion within 30 days of the 
date upon which the decision of the Administrative Law Judge is issued. 
A timely motion for reconsideration will suspend the running of the 
time for any party to file a petition for review pursuant to 
Sec. 726.314.
    (g) Following issuance of the decision and order, the Chief 
Administrative Law Judge shall promptly forward the complete hearing 
record to the Director.


Sec. 726.314  Review by the Secretary.

    (a) The Director or any party aggrieved by a decision of the 
Administrative Law Judge may petition the Secretary for review of the 
decision by filing a petition within 30 days of the date on which the 
decision was issued. Any other party may file a cross-petition for 
review within 15 days of its receipt of a petition for review or within 
30 days of the date on which the decision was issued, whichever is 
later. Copies of any petition or cross-petition shall be served on all 
parties and on the Chief Administrative Law Judge.
    (b) A petition filed by one party shall not affect the finality of 
the decision with respect to other parties.
    (c) If any party files a timely motion for reconsideration, any 
petition for review, whether filed prior to or subsequent to the filing 
of the timely motion for reconsideration, shall be dismissed without 
prejudice as premature. The 30-day time limit for filing a petition for 
review by any party shall commence upon issuance of a decision on 
reconsideration.


Sec. 726.315  Contents.

    Any petition or cross-petition for review shall:
    (a) Be dated;
    (b) Be typewritten or legibly written;
    (c) State the specific reason or reasons why the party petitioning 
for review believes the Administrative Law Judge's decision is in 
error;
    (d) Be signed by the party filing the petition or an authorized 
representative of such party; and
    (e) Attach copies of the Administrative Law Judge's decision and 
any other documents admitted into the record by the Administrative Law 
Judge which would assist the Secretary in determining whether review is 
warranted.


Sec. 726.316  Filing and service.

    (a) Filing. All documents submitted to the Secretary shall be filed 
with the Secretary of Labor, U.S. Department of Labor, 200 Constitution 
Ave., NW, Washington, DC 20210.
    (b) Number of copies. An original and four copies of all documents 
shall be filed.
    (c) Computation of time for delivery by mail. Documents are not 
deemed filed with the Secretary until actually received by the 
Secretary either on or before the due date. No additional time shall be 
added where service of a document requiring action within a prescribed 
time was made by mail.
    (d) Manner and proof of service. A copy of each document filed with 
the Secretary shall be served upon all other parties involved in the 
proceeding. Service under this section shall be by personal delivery or 
by mail. Service by mail is deemed effected at the time of mailing to 
the last known address.


Sec. 726.317  Discretionary review.

    (a) Following receipt of a timely petition for review, the 
Secretary shall

[[Page 55072]]

determine whether the decision warrants review, and shall send a notice 
of such determination to the parties and the Chief Administrative Law 
Judge. If the Secretary declines to review the decision, the 
Administrative Law Judge's decision shall be considered the final 
decision of the agency. The Secretary's determination to review a 
decision by an Administrative Law Judge under this subpart is solely 
within the discretion of the Secretary.
    (b) The Secretary's notice shall specify:
    (1) The issue or issues to be reviewed; and
    (2) The schedule for submitting arguments, in the form of briefs or 
such other pleadings as the Secretary deems appropriate.
    (c) Upon receipt of the Secretary's notice, the Director shall 
forward the record to the Secretary.


Sec. 726.318  Final decision of the Secretary.

    The Secretary's review shall be based upon the hearing record. The 
findings of fact in the decision under review shall be conclusive if 
supported by substantial evidence in the record as a whole. The 
Secretary's review of conclusions of law shall be de novo. Upon review 
of the decision, the Secretary may affirm, reverse, modify, or vacate 
the decision, and may remand the case to the Office of Administrative 
Law Judges for further proceedings. The Secretary's final decision 
shall be served upon all parties and the Chief Administrative Law 
Judge, in person or by mail to the last known address.


Sec. 726.319  Retention of official record.

    The official record of every completed administrative hearing held 
pursuant to this part shall be maintained and filed under the custody 
and control of the Director.


Sec. 726.320  Collection and recovery of penalty.

    (a) When the determination of the amount of any civil money penalty 
provided for in this part becomes final, in accordance with the 
administrative assessment thereof, or pursuant to the decision and 
order of an Administrative Law Judge in an administrative proceeding as 
provided in, or following the decision of the Secretary, the amount of 
the penalty as thus determined is immediately due and payable to the 
U.S. Department of Labor on behalf of the Black Lung Disability Trust 
Fund. The person against whom such penalty has been assessed or imposed 
shall promptly remit the amount thereof, as finally determined, to the 
Secretary by certified check or by money order, made payable to the 
order of U.S. Department of Labor, Black Lung Program. Such remittance 
shall be delivered or mailed to the Director.
    (b) If such remittance is not received within 30 days after it 
becomes due and payable, it may be recovered in a civil action brought 
by the Secretary in any court of competent jurisdiction, in which 
litigation the Secretary shall be represented by the Solicitor of 
Labor.

PART 727--[REMOVED]

    6. Under the authority of sections 932 and 936 of the Black Lung 
Benefits Act, part 727 is proposed to be removed.

[FR Doc. 99-24658 Filed 10-7-99; 8:45 am]
BILLING CODE 4510-27-P