[Federal Register Volume 68, Number 240 (Monday, December 15, 2003)]
[Rules and Regulations]
[Pages 69930-69935]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-30854]



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Part IV





Department of Labor





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Employment Standards Administration



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20 CFR Parts 718 and 725



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

  Federal Register / Vol. 68, No. 240 / Monday, December 15, 2003 / 
Rules and Regulations  

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DEPARTMENT OF LABOR

Employment Standards Administration

20 CFR Parts 718 and 725

RIN 1215-AB40


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

AGENCY: Employment Standards Administration, Labor.

ACTION: Final rule.

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SUMMARY: This final rule implements the decision of the United States 
Court of Appeals for the District of Columbia Circuit resolving a broad 
challenge to numerous provisions of a final rule, promulgated by the 
Department of Labor on December 20, 2000, amending the regulations 
implementing the Black Lung Benefits Act. In its June 14, 2002 opinion, 
the court reviewed both the substance of many provisions of the rule 
and the applicability of numerous provisions. It upheld the substance 
of all but one provision, and held that several other provisions were 
inapplicable to certain claims. The court therefore affirmed in part 
the district court's decision upholding the rule in its entirety, 
reversed in part, and remanded the case for further proceedings 
consistent with its opinion. The district court, in turn, remanded the 
case to the Department for further proceedings in accordance with the 
D.C. Circuit's opinion. This final rule implements the D.C. Circuit's 
opinion. It makes no other changes.

DATES: Effective December 15, 2003.

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

SUPPLEMENTARY INFORMATION:

I. Regulatory History

    On January 22, 1997, the Department issued a proposed rule to amend 
the regulations implementing the Black Lung Benefits Act. 62 FR 3338-
3435 (Jan. 22, 1997). The Department received almost 200 written 
submissions from interested persons and organizations, and it held two 
hearings at which over 50 people testified. After carefully reviewing 
the comments and testimony, the Department issued a second notice of 
proposed rulemaking. 64 FR 54966-55072 (Oct. 8, 1999). The second 
notice proposed changing several important provisions in the initial 
proposal, and explained the Department's decision not to change other 
regulations. The Department received 37 written submissions during the 
ensuing 90-day comment period. After carefully reviewing these 
comments, the Department issued its final rule on December 20, 2000. 65 
FR 79920-80107 (Dec. 20, 2000).
    The National Mining Association and several other plaintiffs filed 
suit against the Department in the United States District Court for the 
District of Columbia, challenging a substantial number of the 
provisions in the final rule. The court upheld the validity of each of 
the challenged provisions and rejected the plaintiffs' argument that 
certain regulations should not apply to claims pending on the rule's 
effective date. National Mining Ass'n v. Chao, 160 F.Supp.2d 47 (D.D.C. 
2001). It also rejected a challenge to the procedural adequacy of the 
Department's rulemaking proceeding, holding that the rulemaking record 
met the procedural requirements of the Administrative Procedure Act. 
160 F.Supp.2d at 87-88. The plaintiffs appealed to the D.C. Circuit.

II. D.C. Circuit's Review of the Final Rule

Substantive Challenges

    In National Mining Ass'n v. Dep't of Labor, 292 F.3d 849 (D.C. Cir. 
2002), the court upheld the validity of all of the challenged 
provisions except one. The court upheld the following regulations: 20 
CFR 718.104(d), 718.201(a)(2) and (c), 718.204(a), 718.205(c)(5), 
725.101(a)(6), 725.309(d), 725.310(b), 725.366(b), 725.408, 725.414, 
725.456, 725.457(d), 725.458, 725.495(c), 725.701(e). The court 
invalidated one provision, however, holding that the Department lacked 
the specific statutory authorization necessary to shift the cost of 
cross-examination of an indigent claimant's witness to other parties in 
the absence of a successfully prosecuted claim. 292 F.3d at 875 
(discussion of Sec.  725.459). The Department's revision to Sec.  
725.459 is explained in detail under III, Explanation of Changes.
    The court upheld the substance of other provisions based upon the 
plain language of the rules, the preamble explanation of their intended 
application, the rulemaking record and the government's representations 
made in the course of briefing and oral argument. The decision outlines 
the substance and intended application of the challenged rules, as 
described below.
Treating Physicians' Opinions--20 CFR 718.104(d)
    Section 718.104(d) requires the adjudicator to give consideration 
to the relationship between the miner and any treating physician whose 
report is admitted into the record, and provides that, in appropriate 
cases, the relationship between the miner and his treating physician 
may constitute substantial evidence in support of the adjudicator's 
decision to give that physician's opinion controlling weight. In 
upholding the substance of the provision, the court recognized that the 
rule permits, but does not mandate, that the adjudicator give 
controlling weight to a treating physician's opinion. A decision to 
give a treating physician's opinion controlling weight must 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.'' 
292 F.3d at 870 (quoting 20 CFR 718.104(d)(5)). Just as the Department 
had explained in the preamble to the final rule (65 FR at 79933-79934, 
] (h) (Dec. 20, 2000)), the court stated that the provision is not a 
presumption that ``relieves claimants of the burden of proving both 
pneumoconiosis and the credibility of the doctor's opinion.'' 292 F.3d 
at 870. Indeed, the court stated specifically that neither the 
regulation's plain language nor the Secretary's interpretation relieves 
claimants of the burden of proof. Id.
Definition of ``Pneumoconiosis''--20 CFR 718.201
    Section 718.201(a) defines pneumoconiosis as ``a chronic dust 
disease of the lung and its sequelae, including respiratory and 
pulmonary impairments, arising out of coal mine employment.'' It 
further provides that ``this definition includes both medical, or 
`clinical', pneumoconiosis and statutory, or `legal', pneumoconiosis.'' 
Id. Section 718.201(a)(2) provides that the definition includes ``any 
chronic restrictive or obstructive pulmonary disease arising out of 
coal mine employment.'' Section 718.201(c) provides that pneumoconiosis 
``is recognized as a latent and progressive disease which may first 
become detectable only after the cessation of coal mine dust 
exposure.''
    The court upheld Sec.  718.201(a), stating that, by recognizing 
both ``clinical'' and ``legal'' pneumoconiosis, the regulation ``merely 
adopts a distinction embraced by all six circuits to have considered 
the issue,'' and ``neither `expand[s]' nor `redefine[s]' the meaning of 
pneumoconiosis beyond its statutory definition.'' 292 F.3d at 869. The 
court also noted that even if the regulation could be read to change 
the definition, the Black Lung Benefits Act gives the Secretary the 
authority to supplement

[[Page 69931]]

statutory terms. Id. The court upheld Sec.  718.201(c), holding it had 
sufficient support in the rulemaking record. The court cited scientific 
evidence in the rulemaking record indicating that pneumoconiosis can be 
latent and progressive. The court cited two studies, one ``indicating 
that pneumoconiosis is latent and progressive in--at most--eight 
percent of cases,'' and the other ``indicating that pneumoconiosis is 
latent and progressive as much as 24% of the time.'' 292 F.3d at 869. 
Consistent with the Department's argument, the court therefore 
interpreted the regulation to mean that pneumoconiosis can be a latent 
and progressive disease, not that pneumoconiosis is always or typically 
a latent and progressive disease. Id. There is no irrebuttable 
presumption that each miner's pneumoconiosis is latent or progressive. 
The burden of proving the presence of pneumoconiosis is always on the 
miner. As the Department explained in the preamble to the final rule, 
``the miner continues to bear the burden of establishing all of the 
statutory elements of entitlement.'' 65 FR at 79972 (Dec. 20, 2000).
Total Disability Rule--20 CFR 718.204(a)
    Section 718.204(a) provides, in part, that ``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.'' In upholding this provision, 
the court stated that there is ``an obvious rational basis for the 
rule: the statute only pertains to whether a miner is disabled `due to 
pneumoconiosis,' and evidence of nonpulmonary conditions has no 
relevance to that inquiry.'' 292 F.3d at 873. Recognizing that the rule 
is consistent with the holdings of three circuits and abrogates the 
holding of another, see 65 FR 79947, ] (c) (Dec. 20, 2000), the court 
explained that ``regulations promulgated to clarify disputed 
interpretations of a regulation are to be encouraged. Tidying-up a 
conflict in the circuits with a clarifying regulation permits a 
nationally uniform rule without the need for the Supreme Court to essay 
the meaning of every debatable regulation.''' 292 F.3d at 873 (quoting 
Pope v. Shalala, 998 F.2d 473, 486 (7th Cir. 1993)).
Establishing Death Due to Pneumoconiosis--20 CFR 718.205(c)
    Section 718.205(c)(2) provides, in part, that for the purpose of 
adjudicating survivors' claims filed on or after January 1, 1982, death 
will be considered due to pneumoconiosis ``[w]here pneumoconiosis was a 
substantially contributing cause or factor leading to the miner's 
death. * * *'' Section 718.205(c)(5), in turn, provides that 
``[p]neumoconiosis is a `substantially contributing cause' of a miner's 
death if it hastens the miner's death.'' In upholding this provision, 
the court noted that the rulemaking record supported the Department's 
conclusion that ``pneumoconiosis [can] weaken the body's defenses to 
infections and increase susceptibility to other disease processes.'' 
292 F.3d at 871 (quoting 65 FR 79950 (Dec. 20, 2000)). The court 
recognized that the provision ``nowhere mandates the conclusion that 
pneumoconiosis be regarded as a hastening cause of death,'' and that it 
``expressly requires claimants to prove that pneumoconiosis is the 
hastening cause'' of death. 292 F.3d at 871. As the Department 
explained in the preamble to the final rule: (1) the survivor must 
``submit credible medical evidence establishing a detectable hastening 
of the miner's death on account of pneumoconiosis,'' 65 FR 79949, ] (b) 
(Dec. 20, 2000); and (2) ``the burden of persuasion remains with the 
survivor to prove that the miner's death was due to pneumoconiosis.'' 
65 FR 79951, ] (f) (Dec. 20, 2000).
Definition of ``Benefits''--20 CFR 725.101(a)(6)
    Section 725.101(a)(6) includes in the definition of ``benefits'' 
the ``expenses related to the medical examination and testing 
authorized by the district director pursuant to Sec.  725.406.'' The 
costs of such medical examination and testing are paid by the Black 
Lung Disability Trust Fund and are reimbursed by the employer only if 
benefits are ultimately awarded. See 20 CFR 725.406(e); 292 F.3d at 
865-866. In upholding the substance of this provision, the court noted 
``the Black Lung Benefits Act's express authorization to `[t]he 
Secretary * * * to charge the cost of examination * * * to the 
employer.' '' 292 F.3d at 875 (quoting 33 U.S.C. 907(e), as 
incorporated by 30 U.S.C. 932(a)).
Subsequent Claims--20 CFR 725.309(d)
    Section 725.309(d) provides, in part, that a subsequent claim 
``shall 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.'' A 
subsequent or additional claim is a claim filed more than one year 
after the denial of a claim previously filed by the same claimant. The 
court upheld this provision because: (1) The regulatory language 
squarely places the burden of proving a change in a condition of 
entitlement on the claimant; and (2) Sec.  725.309(d) does not violate 
res judicata or traditional notions of finality because proof of the 
change must be based on evidence of the claimant's current condition. 
292 F.3d at 870. See also 65 FR 79973, ] (d) (Dec. 20, 2000) 
(explaining that ``new evidence establish[ing] that [a miner's] 
condition has worsened'' is required to establish the necessary 
change). The claimant's condition at the time the previous claim was 
denied is not relevant to proving a change in a condition of 
entitlement. 292 F.3d at 870. Moreover, even after establishing a 
change in one condition of entitlement, the miner still bears the 
burden of proving the remaining conditions of entitlement. 292 F.3d at 
861.
Attorneys' Fees--20 CFR 725.366(b)
    Section 725.366(b) provides that in calculating an award of an 
attorney's fees, the ALJ ``shall take into account'' a number of 
factors, including ``the quality of the representation, the 
qualifications of the representative, [and] the complexity of the legal 
issues involved.'' The court upheld this provision, noting it required 
consideration of no factors not already included in the calculation of 
shifted attorneys' fees by the Supreme Court. In response to the 
argument that the rule would result in the ``double counting'' of some 
factors, the court stated that ``the factors identified in Sec.  
725.366(b) do not supplant the `lodestar' method of calculating 
reasonable fees, or enhance the lodestar fee once it is calculated.'' 
292 F.3d at 875 (quoting government's brief).
Evidence Limitations--20 CFR 725.310(b), .414, .456, .457(d), .458
    Sections 725.310(b), 725.414, 725.456, 725.457(d), and 725.458 
place various limits on the amount and timing of evidence admissible in 
claims proceedings. The court upheld all of these provisions, stating 
that the Administrative Procedure Act and the Black Lung Benefits Act 
authorize them. In holding that the new evidentiary limits are not at 
all ``artificial,'' the court quoted the Department's explanation for 
these limitations: they ``will enable ALJs to focus their attention `on 
the quality of the medical evidence in the record before [them].' '' 
292 F.3d at 874 (quoting 64 FR 54994 (Oct. 8, 1999)).

[[Page 69932]]

Criteria for Determining a Responsible Operator--20 CFR 725.408, 
.495(c)
    Section 725.408 establishes a deadline for a coal mine operator 
named a ``potentially liable operator'' in a specific claim to submit 
evidence regarding its financial status and employment of the miner if 
it disagrees with its identification. Upholding the validity of this 
provision, the court stated that the section shifted only the burden of 
production, not the burden of proof, and that ``it requires nothing 
more than that operators must submit evidence rebutting an assertion of 
liability within a given period of time.'' 292 F.3d at 871. ``[T]he 
evidence required by Sec.  725.408 is limited to evidence relevant to 
the notified operator's own employment of the miner and that operator's 
financial status.'' 65 FR at 79986, ] (e) (Dec. 20, 2000)).
    Section 725.495(c) provides that once an operator has been 
designated as the ``responsible operator'' (the operator responsible 
for a specific claim) from among the companies named potentially liable 
operators, it may be relieved of liability only if it proves either 
that it is financially incapable of assuming liability or that another 
potentially liable operator more recently employed the miner and is 
capable of assuming liability. The court upheld this provision, 
recognizing that it shifted the burden of proof, because it applies 
only after the operator has been designated as the responsible 
operator. 292 F.3d at 872. See also 65 FR 80009, ] (e) (Dec. 20, 2000); 
64 FR at 54973 (Oct. 8, 1999); 62 FR at 3365 (Jan. 22, 1997). In 
seeking to be excused from liability in such circumstances, the court 
noted ``the operator becomes the `proponent' of a remedial order of the 
ALJ and, therefore, the party to which [the APA] assigns the burden of 
proof.'' 292 F.3d at 872 (quoting 160 F.Supp.2d at 71). Given that the 
provision ``affords a mine operator liable for a claimant's black lung 
disease the opportunity to shift liability to another party, it is 
hardly irrational to require the operator to bear the burden of proving 
that the other party is in fact liable.'' 292 F.3d at 872.
Medical Benefits Presumption--20 CFR 725.701(e)
    Section 725.701(e) provides that if a miner who is totally disabled 
due to pneumoconiosis receives treatment for a pulmonary disorder, 
there is a rebuttable presumption that the disorder is caused or 
aggravated by the miner's pneumoconiosis. If the presumption is not 
rebutted, the cost of the treatment is compensable. The court upheld 
this provision, noting that the Department explained in the preamble to 
the final rule that the provision ``shifts only the burden of 
production to operators to produce evidence that the treated disease 
was unrelated to the miner's pneumoconiosis; the ultimate burden of 
proof remains on claimants at all times.'' 292 F.3d at 872 (citing 65 
FR 80022 (Dec. 20, 2000)). The court also agreed with the Department's 
preamble explanation, stating that ``there is a clear rational 
relationship between the fact proved (that a miner suffered from 
totally disabling pneumoconiosis in the past) and the fact presumed 
(that the miner's treated pulmonary disorder is related to that 
pneumoconiosis).'' 292 F.3d at 873 (citing 65 FR 80023 (Dec. 20, 
2000)). The court concluded that this rational relationship ``suffices 
for purposes of our review.'' 292 F.3d at 873.

Retroactivity Challenges

    The court also addressed the contention that some of the new 
provisions were impermissibly retroactive, that is, could not be 
applied to claims for benefits pending on January 19, 2001, the 
effective date of the final rule. The court agreed with this contention 
as to eight provisions--the second sentence of Sec.  718.204(a), as 
well as Sec. Sec.  725.101(a)(31), 725.204, 725.212(b), 725.213(c), 
725.214(d), 725.219(d), and 725.701(e). The court noted, as had the 
Department in the preamble to the initial notice of proposed rulemaking 
(see 62 FR at 3347 (Jan. 22, 1997)), that the Department is not 
authorized to promulgate retroactive black lung benefits regulations. 
The court explained that application of a regulation to a claim pending 
on the regulation's effective date would be impermissibly retroactive 
if the regulation ``change[d] the legal landscape.'' 292 F.3d at 859. 
The court determined that the eight provisions listed above did change 
the legal landscape, and that application of these provisions to claims 
pending on the effective date of the final rule was therefore improper. 
292 F.3d at 864-868. The Department's revisions to effectuate the 
court's holdings are found at 20 CFR 718.2 and 725.2(c), and are 
explained in detail under III, Explanation of Changes.
    In rejecting challenges to the applicability of 20 CFR 718.104(d), 
718.201(a)(2) and (c), 725.101(a)(6), and 725.309(d), the court 
reasoned as follows:
Treating Physicians' Opinions--20 CFR 718.104(d)
    In holding that the treating physician rule, Sec.  718.104(d), is 
not impermissibly retroactive, the court explained that the rule 
``codifies judicial precedent and does not work a substantive change in 
the law.'' 292 F.3d at 861.
Definition of ``Pneumoconiosis''--20 CFR 718.201
    Holding that Sec.  718.201(a)(2)--which includes ``chronic 
restrictive or obstructive pulmonary disease arising out of coal mine 
employment'' in the definition of ``pneumoconiosis''--is not 
impermissibly retroactive, the court concluded that the provision 
``does not alter the requirement that individual miners must 
demonstrate that their obstructive lung disease arose out of their work 
in the mines.'' 292 F.3d at 863 (citing 65 FR 79938 (Dec. 20, 2000)). 
The court noted that the rulemaking record supports the premise that 
obstructive lung disease may be caused by coal mining exposure, and 
that this provision ``does no more than reflect this reality.'' 292 
F.3d at 862. It rejected the argument that the provision creates a 
presumption that a miner's obstructive lung disease is caused by 
exposure to coal dust. It held, consistent with the Department's 
preamble explanation, that the provision requires ``that each miner 
bear the burden of proving that his obstructive lung disease did in 
fact arise out of his coal mine employment.'' 65 FR at 79938 (Dec. 20, 
2000). See 292 F.3d at 862-863. The court also rejected as 
``meritless'' the contention that the regulation permits an adjudicator 
to ``ignore a medical report if the reporting doctor concludes that a 
miner's obstructive lung disease was caused by smoking, rather than 
mining.'' 292 F.3d at 863. ``The regulation's plain text in no way 
indicates that medical reports will be excluded if they conclude that a 
particular miner's obstructive disease was caused by smoking, rather 
than mining.'' Id.
    Section 718.201(c) provides that pneumoconiosis is ``recognized as 
a latent and progressive disease which may first become detectable only 
after the cessation of coal mine dust exposure.'' Holding that this 
regulation is not impermissibly retroactive, the court rejected the 
argument that the rule assumes that all pneumoconiosis is latent and 
progressive as ``based on a false reading of the rule.'' 292 F.3d at 
863. The court explained that ``[t]he rule simply prevents operators 
from claiming that pneumoconiosis is never latent and progressive. The 
medical literature

[[Page 69933]]

makes it clear that pneumoconiosis may be latent and progressive. * * 
*'' Id.
Definition of ``Benefits''--20 CFR 725.101(a)(6)
    In holding that Sec.  725.101(a)(6)--which defines ``benefits'' to 
include ``any expenses related to the medical examination and testing 
authorized by the district director pursuant to Sec.  725.406''--is not 
impermissibly retroactive, the court stated that the operators ``have 
not pointed to anything in the new definition that departs from the 
system already in place under the old Sec.  725.406(c). Thus, the new 
definition changes nothing and is not impermissibly retroactive.'' 292 
F.3d at 866.
Subsequent Claims--20 CFR 725.309(d)
    Holding that the subsequent claims rule, Sec.  725.309(d), is not 
impermissibly retroactive, the court stated that the regulation 
``applies only to claims filed after the regulations' effective date'' 
and, in any event, is not substantively new and therefore ``does not 
change the legal landscape.'' 292 F.3d at 863-864.

III. Explanation of Changes

    In order to conform to the D.C. Circuit's holding invalidating the 
witness-fee-shifting provision in Sec.  725.459, the Department must 
revise that regulation. Similarly, to conform the regulations to the 
court's retroactivity holdings, the Department must revise both Sec.  
718.2 and Sec.  725.2(c). Those sections address the applicability of 
the regulations in Parts 718 and 725. Since the court ruled that one 
provision in Part 718 and several regulations in Part 725 were 
impermissibly retroactive if applied to claims pending on January 19, 
2001, both Sec.  718.2 and Sec.  725.2(c) must be revised.

20 CFR 718.2

    (a) In the final rule promulgated on December 20, 2000, the 
Department revised Sec.  718.204(a) by adding the following sentence: 
``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.'' This revision clarified that non-respiratory/
pulmonary impairments are not relevant to the total disability 
determination; thus, a miner who suffers from disabling pneumoconiosis 
is totally disabled for purposes of the Black Lung Benefits Act 
notwithstanding the existence of any independently disabling non-
respiratory/pulmonary impairments. The change codified the holdings in 
Cross Mountain Coal Co. v. Ward, 93 F.3d 211, 216-217 (6th Cir. 1996); 
Youghiogheny & Ohio Coal Co. v. McAngues, 996 F.2d 130, 134-135 (6th 
Cir. 1993), cert. den. 510 U.S. 1040 (1994); Twin Pines Coal Co. v. 
U.S. Dept. of Labor, 854 F.2d 1212, 1215 (10th Cir. 1988); and Peabody 
Coal Co. v. Director, OWCP [Huber], 778 F.2d 358, 363 (7th Cir. 1985), 
and emphasized the Department's disagreement with Peabody Coal Co. v. 
Vigna, 22 F.3d 1388, 1394-1395 (7th Cir. 1994) (holding claimant's 
entitlement precluded by disabling stroke which was unrelated to coal 
mine employment and occurred before evidence of disability due to 
pneumoconiosis). See 62 FR at 3344-3345 (Jan. 22, 1997); 64 FR at 
54979, ] (b) (Oct. 8, 1999); 65 FR at 79947, ] (c) (Dec. 20, 2000). By 
virtue of Sec.  718.2, this provision, located in the second sentence 
of Sec.  718.204(a), applied to the adjudication of all claims filed 
after March 31, 1980, including those pending on January 19, 2001. 20 
CFR 718.2 (``This part is applicable to the adjudication of all claims 
filed after March 31, 1980. * * *'').
    (b) Because the second sentence of Sec.  718.204(a) is a departure 
from the Seventh Circuit's Vigna decision, the D.C. Circuit held the 
rule impermissibly retroactive as applied to claims pending on January 
19, 2001, the regulation's effective date. 292 F.3d at 864-865. The 
court stressed, however, that it did not ``intend to affect the law in 
circuits that have adopted or might adopt positions that conform with 
the Secretary's interpretation. * * * Instead, the effect of our ruling 
is to leave the state of the law on this question exactly as it was 
prior to the regulations' promulgation'' for pending cases. Id. The 
court otherwise upheld the substance of the regulation, holding that 
the ``regulation has a rational basis and is consistent with the APA.'' 
292 F.3d at 873.
    (c) The Department has revised Sec.  718.2 to reflect the D.C. 
Circuit's conclusion that the second sentence of Sec.  718.204(a) may 
not be applied to claims pending on the effective date of the 
regulations: January 19, 2001.

20 CFR 725.2(c)

    (a)(i) In the final rule issued on December 20, 2000, the 
Department amended the definition of ``workers' compensation law'' 
(previously codified at 20 CFR 725.101(a)(4) (2000)) in Sec.  
725.101(a)(31) to clarify its longstanding interpretation of the 
statute that payments made from a state's general revenues are not 
workers' compensation benefits subject to offset under the Black Lung 
Benefits Act. 62 FR 3348-3349 (Jan. 22, 1997); 64 FR 54982-54983, ] (e) 
(Oct. 8, 1999); 65 FR 79958-79959, ] (e) (Dec. 20, 2000). The revision 
responded to a Third Circuit decision rejecting the Department's 
position as inconsistent with the language of the prior implementing 
regulation. Director, OWCP v. Eastern Associated Coal Co. [O'Brockta], 
54 F.3d 141, 148-150 (3d Cir. 1995). Despite its holding, the Third 
Circuit agreed that the Department's position reflected a permissible 
interpretation of the statute, and noted that the Department ``has the 
means and obligation to amend its regulations to provide for'' its 
interpretation. 54 F.3d at 150. (ii) Because the Third Circuit had 
rejected the Department's position under the prior regulations, the 
D.C. Circuit held the revised rule impermissibly retroactive when 
applied ``to claims that were already pending when the new regulation 
took effect'' or to ``adjust payments being made on settled or resolved 
claims.'' 292 F.3d at 866. The court emphasized that ``other circuits 
remain free to apply the Secretary's longstanding interpretation of the 
prior regulation to pending claims.'' Id. (iii) To reflect the D.C. 
Circuit's decision, the Department has revised Sec.  725.2(c) in two 
ways. First, the Department has included Sec.  725.101(a)(31) in the 
list of regulations that do not apply to claims pending on January 19, 
2001. Second, the Department has revised the first two sentences of the 
subsection to clarify that the regulations included in the list do not 
apply to benefit payments made on claims pending on January 19, 2001, 
even where the benefit payments are made after January 19, 2001. Thus, 
Sec.  725.101(a)(31) applies only to claims filed after January 19, 
2001.
    (b)(i) In the final rule issued on December 20, 2000, the 
Department revised a number of provisions relating to the criteria for 
determining the relationship and dependency of a miner's dependents and 
survivors, including Sec. Sec.  725.204, 725.212(b), 725.213(c), 
725.214(d), 725.219(d). These revisions were necessary to reflect 
certain amendments to the underlying incorporated Social Security Act 
provisions and to the Black Lung Benefits Act, and to clarify the 
Department's policy with regard to the issues involved. 62 FR 3349-3351 
(Jan. 22, 1997); 65 FR 79963-79967 (Dec. 20, 2000). (ii) The D.C. 
Circuit concluded that these revisions are impermissibly retroactive 
``as applied to claims other than those filed after the regulations'

[[Page 69934]]

effective date'' because they ``expand the scope of coverage by making 
more dependents and survivors eligible for benefits.'' 292 F.3d at 866-
867. The court recognized that the Department's regulations also 
contemplated application of these revisions to ``all benefits payments 
made'' after January 19, 2001, even payments made on claims finally 
adjudicated prior to that time. The court rejected the Department's 
approach and reiterated that ``it would be unlawfully retroactive to 
apply the definitions to any claims other than those filed on or after 
the regulations' effective date.'' 292 F.3d at 867. (iii) To reflect 
the D.C. Circuit's decision, the Department has revised Sec.  725.2(c) 
in two ways. First, the Department has included Sec. Sec.  725.204, 
725.212(b), 725.213(c), 725.214(d), and 725.219(d) in the list of 
regulations that do not apply to claims pending on January 19, 2001. 
Second, the Department has revised the first two sentences of the 
subsection to clarify that the regulations included in the list do not 
apply to benefits payments made on claims pending on January 19, 2001, 
even where the benefit payments are made after January 19, 2001. 
Through these two revisions, the Department has ensured that the 
regulations deemed impermissibly retroactive by the D.C. Circuit will 
not be applied either to claims filed before the effective date of the 
regulations or to any benefits paid on those claims. Under the plain 
language of the revised regulation, the regulations that are not listed 
will continue to apply to all benefits payments made, including those 
paid pursuant to claims filed prior to the effective date of the 
regulations. The regulations listed in Sec.  725.2(c) apply only to 
claims filed after January 19, 2001.
    (c) The court mentioned both Sec.  725.209 and Sec.  725.219(c) in 
the course of discussing whether revisions made to the criteria for 
determining the relationship and dependency of a miner's dependents and 
survivors found in Part 725, Subpart B could be applied to pending 
claims, but did not hold that either regulation is impermissibly 
retroactive. 292 F.3d at 867. Neither of these regulations was revised 
in any substantive way in the final rule issued on December 20, 2000. 
Although the Department initially proposed substantive changes to Sec.  
725.209, finally-revised Sec.  725.209 contains only one revision, 
which eliminated unnecessary words. Compare 20 CFR 725.209(a)(2)(ii) 
(1999) with 20 CFR 725.209(a)(2)(ii) (2002); Compare 62 FR at 3350 
(Jan. 22, 1997) with 65 FR at 79963 (Dec. 20, 2000). And Sec.  
725.219(c) was not revised at all. Compare 20 CFR 725.219(c) (1999) 
with 20 CFR 725.219(c) (2002). Accordingly, the Department has not 
added either of these regulations to the list set forth in Sec.  
725.2(c), and both regulations apply to claims pending on January 19, 
2001.
    (d)(i) In the final rule issued on December 20, 2000, the 
Department added Sec.  725.701(e) to establish a rebuttable presumption 
of medical benefits coverage for the treatment of any pulmonary 
disorder suffered by a miner totally disabled due to pneumoconiosis 
arising out of coal mine employment. This presumption is derived from a 
judicially-created presumption first announced by the Fourth Circuit in 
Doris Coal Co. v. Director, OWCP, 938 F.2d 492 (4th Cir. 1991), and 
later refined by that court in Gulf & Western Indus. v. Ling, 176 F.3d 
226 (4th Cir. 1999), and General Trucking Corp. v. Salyers, 175 F.3d 
322 (4th Cir. 1999). 65 FR at 80021-80022 (Dec. 20, 2000). The 
Department also recognized the Sixth Circuit had held in Glen Coal Co. 
v. Seals, 147 F.3d 502 (6th Cir. 1998), that the administrative law 
judge and the Benefits Review Board erred in applying the Doris Coal 
presumption to a miner whose coal mine employment took place within the 
jurisdiction of the Sixth Circuit. 65 FR at 80021-80022, ] (a) (Dec. 
20, 2000). (ii) Because the D.C. Circuit found the rebuttable 
presumption established by Sec.  725.701(e) contradicted by the Sixth 
Circuit's decision in Seals, it held that the rule is impermissibly 
retroactive when applied to pending claims. The court explained that 
its holding was ``not intended to affect the law in the Fourth Circuit 
or any other circuit that would have embraced the Doris Coal 
presumption. The judicial presumption remains the law in the circuits 
that adopt it.'' 292 F.3d at 865. (iii) To reflect the D.C. Circuit's 
decision, the Department has revised Sec.  725.2(c) to include Sec.  
725.701(e) in the list of regulations that do not apply to claims 
pending on January 19, 2001.

20 CFR 725.459

    (a) In the final rule issued on December 20, 2000, the Department 
revised Sec.  725.459(b) to include a provision relieving an indigent 
claimant of the cost of producing his or her witnesses for cross-
examination, regardless of whether such indigent claimant ultimately 
prevailed: ``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 shall apportion the costs of 
such cross-examination among the parties to the case.'' The Department 
also added a new subsection (d) adopting certain criteria for 
determining indigency in this context. See 64 FR at 54996-54997 (Oct. 
8, 1999); 65 FR at 80003, ] (a) (Dec. 20, 2000).
    (b) The D.C. Circuit held these provisions in Sec.  725.459 invalid 
under West Virginia University Hospitals, Inc. v. Casey, 499 U.S. 83, 
97-100 (1991), because the court found no specific statutory authority 
for shifting this cost to an employer in the absence of a successfully 
prosecuted claim. 292 F.3d at 875.
    (c) To reflect the D.C. Circuit's decision, the Department has 
revised Sec.  725.459 to eliminate the fourth sentence and the 
beginning of the fifth sentence of paragraph (b). The Department has 
also eliminated paragraph (d). Thus, ``the proponent of [a] witness 
[called for cross-examination] shall pay the witness' fee,'' 20 CFR 
725.459(b). This rule applies to all parties, including the claimant.

IV. Rulemaking Analyses

Administrative Procedure Act

    Section 553 of the Administrative Procedure Act, 5 U.S.C. 
553(b)(B), provides that, when an agency for good cause finds that 
notice and public procedure are impracticable, unnecessary, or contrary 
to the public interest, the agency may issue a rule without providing 
notice and an opportunity for public comment. The Department has 
determined that there is good cause to conclude that notice and public 
procedure are unnecessary because this action is taken merely to 
conform the regulations to the D.C. Circuit's decision. Because this 
action does not change the law, but merely reflects the state of the 
law as determined by the D.C. Circuit, there is good cause, within the 
meaning of 5 U.S.C. 553(d)(3), to make the action effective upon 
publication.

Regulatory Flexibility Act

    Because the Department has found good cause to conclude that this 
action is not subject to notice and public procedure under the 
Administrative Procedure Act, it is not subject to the regulatory 
flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601 
et seq.).

[[Page 69935]]

Unfunded Mandates Reform Act

    This action is not subject to sections 202 or 205 of the Unfunded 
Mandates Reform Act (UMRA, Pub. L. 104-4) because the Department has 
made a good cause finding the action is not subject to notice and 
public procedure under the Administrative Procedure Act. In addition, 
this action does not significantly or uniquely affect small governments 
or impose a significant intergovernmental mandate as described in 
sections 203 and 204 of UMRA.

Paperwork Reduction Act

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

Executive Order 12866

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

Executive Order 13132

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

List of Subjects in 20 CFR Parts 718 and 725

    Black lung benefits, Claims, Health care, Lung diseases, Miners, 
Mines, Workers' compensation, X-rays.
    For the reasons set forth in the preamble, title 20, Chapter VI, 
Subchapter B of the Code of Federal Regulations is amended as set forth 
below:

    Signed at Washington, DC, this 26th day of November, 2003.
Victoria Lipnic,
Assistant Secretary for Employment Standards.

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

0
1. The authority citation for Part 718 continues to read as follows:

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

0
2. Section 718.2 is revised to read as follows:


Sec.  718.2  Applicability of this part.

    With the exception of the second sentence of Sec.  718.204(a), 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. The second sentence of Sec.  
718.204(a) is applicable to the adjudication of all claims filed after 
January 19, 2001. 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.

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

0
1. The authority citation for Part 725 continues to read as follows:

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

0
2. Section 725.2 is amended by revising paragraph (c) to read as 
follows:


Sec.  725.2  Purpose and applicability of this part.

* * * * *
    (c) The provisions of this part reflect revisions that became 
effective on January 19, 2001. This part applies to all claims filed 
after January 19, 2001 and all benefits payments made on such claims. 
With the exception of the following sections, this part shall also 
apply to the adjudication of claims that were pending on January 19, 
2001 and all benefits payments made on such claims: Sec. Sec.  
725.101(a)(31), 725.204, 725.212(b), 725.213(c), 725.214(d), 
725.219(d), 725.309, 725.310, 725.351, 725.360, 725.367, 725.406, 
725.407, 725.408, 725.409, 725.410, 725.411, 725.412, 725.414, 725.415, 
725.416, 725.417, 725.418, 725.421(b), 725.423, 725.454, 725.456, 
725.457, 725.458, 725.459, 725.465, 725.491, 725.492, 725.493, 725.494, 
725.495, 725.547, 725.701(e). The version of those sections set forth 
in 20 CFR, parts 500 to end, edition revised as of April 1, 1999, apply 
to the adjudications of claims that were pending on January 19, 2001. 
For purposes of construing the provisions of this section, a claim 
shall be considered pending on January 19, 2001 if it was not finally 
denied more than one year prior to that date.

0
3. Section 725.459 is amended by revising paragraph (b), and by 
removing paragraph (d), to read as follows.


Sec.  725.459  Witness fees

* * * * *
    (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 (ALJ) shall 
authorize the least intrusive and expensive means of cross-examination 
as the ALJ deems appropriate and necessary to the full and true 
disclosure of the 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. 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) * * *
[FR Doc. 03-30854 Filed 12-12-03; 8:45 am]
BILLING CODE 4510-27-P