[Federal Register Volume 78, Number 186 (Wednesday, September 25, 2013)]
[Rules and Regulations]
[Pages 59102-59119]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-22874]



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Vol. 78

Wednesday,

No. 186

September 25, 2013

Part II





Department of Labor





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Office of Workers' Compensation Programs





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20 CFR Parts 718 and 725





Regulations Implementing the Byrd Amendments to the Black Lung Benefits 
Act: Determining Coal Miners' and Survivors' Entitlement to Benefits; 
Final Rule

  Federal Register / Vol. 78 , No. 186 / Wednesday, September 25, 2013 
/ Rules and Regulations  

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DEPARTMENT OF LABOR

Office of Workers' Compensation Programs

20 CFR Parts 718 and 725

RIN 1240-AA04


Regulations Implementing the Byrd Amendments to the Black Lung 
Benefits Act: Determining Coal Miners' and Survivors' Entitlement to 
Benefits

AGENCY: Office of Workers' Compensation Programs, Labor.

ACTION: Final rule.

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SUMMARY: This final rule revises the Black Lung Benefits Act (BLBA or 
Act) regulations to implement amendments made by the Patient Protection 
and Affordable Care Act (ACA). The ACA amended the BLBA in two ways. 
First, it revived a rebuttable presumption of total disability or death 
due to pneumoconiosis for certain claims. Second, it reinstituted 
automatic entitlement to benefits for certain eligible survivors of 
coal miners whose lifetime benefit claims were awarded because they 
were totally disabled due to pneumoconiosis. These regulations clarify 
how the statutory presumption may be invoked and rebutted and the 
application and scope of the survivor-entitlement provision. The rule 
also eliminates several unnecessary or obsolete provisions.

DATES: This rule is effective October 25, 2013.

FOR FURTHER INFORMATION CONTACT: Steven Breeskin, Director, Division of 
Coal Mine Workers' Compensation, Office of Workers' Compensation 
Programs, U.S. Department of Labor, 200 Constitution Avenue NW., Suite 
C-3520, Washington, DC 20210. Telephone: (202) 343-5904 (this is not a 
toll-free number). TTY/TDD callers may dial toll-free 1-800-877-8339 
for further information.

SUPPLEMENTARY INFORMATION: 

I. Background of This Rulemaking

    On March 30, 2012, the Department issued a Notice of Proposed 
Rulemaking (NPRM) under the BLBA, 30 U.S.C. 901-944, proposing revised 
rules to implement amendments to the BLBA made by the ACA, Public Law 
111-148, 1556, 124 Stat. 119, 260 (2010), and inviting public comment. 
77 FR 19456-19478 (Mar. 30, 2012). These amendments reinstated two BLBA 
entitlement provisions--Section 411(c)(4), 30 U.S.C. 921(c)(4) (the 
``15-year presumption'') and Section 422(l), 30 U.S.C. 932(l) 
(survivors' automatic entitlement provision)--that had been repealed 
with respect to claims filed on or after January 1, 1982. As a result 
of these amendments, a miner or survivor who files his or her claim 
after January 1, 2005 may now rely on the 15-year presumption in 
establishing entitlement to benefits, provided that the claim was 
pending on or after March 23, 2010 and the presumption's requirements 
for invocation are met. In addition, survivors whose claims meet the 
effective-date requirements are entitled to benefits if the miner was 
awarded disability benefits on a lifetime claim, assuming that the 
survivor meets the BLBA's other conditions of entitlement (such as 
relationship and dependency). The Department recounted the history of 
these provisions in the NPRM. 77 FR at 19456-58. The Department also 
proposed revising or ceasing publication of several related rules that 
are obsolete or unnecessary. The NPRM's comment period closed May 29, 
2012.

II. Statutory Authority

    Section 426(a) of the BLBA, 30 U.S.C. 936(a), authorizes the 
Secretary of Labor to prescribe rules and regulations necessary for the 
administration and enforcement of the Act.

III. Discussion of Significant Comments

    The Department received approximately fifteen comments on the 
proposed regulations. Most of these comments focus on only a few 
substantive issues. The Department's response to the major comments is 
set forth below in the Section-by-Section Explanation, along with an 
explanation of any changes made to the proposed rules in response. Some 
members of the public applauded the Department for eliminating outdated 
or unnecessary provisions and streamlining the regulations where 
possible. See generally Executive Order 13563, 76 FR 3821 (January 18, 
2011) (instructing agencies to review ``rules that may be outmoded, 
ineffective, insufficient, or excessively burdensome, and to modify, 
streamline, expand, or repeal them.''). The public submitted no 
negative comments on the revisions proposed to Sec. Sec.  718.1, 718.2, 
718.3(a), 718.202(a)(3), 718.301, 718.303, 718.306, Part 718 Appendix 
C, 725.1, 725.2, 725.101(a)(1) and (2), 725.201, and 725.418. 
Accordingly, the Department is promulgating these regulations as 
proposed with the technical change explained below.
    The Department has made an additional technical change and replaced 
the term ``shall'' throughout the regulatory sections revised by this 
final rule. Executive Order 13563 states that regulations must be 
``accessible, consistent, written in plain language, and easy to 
understand.'' 76 FR 3821. See also E.O. 12866, 58 FR 51735 (Sept. 30, 
1993) (``Each agency shall draft its regulations to be simple and easy 
to understand, with the goal of minimizing the potential for 
uncertainty and litigation arising from such uncertainty.''). To that 
end, the Department has removed the imprecise term ``shall'' in those 
sections it is amending and substituted ``must,'' ``must not,'' 
``will,'' or other situation-appropriate terms. See generally Federal 
Plain Language Guidelines, http://www.plainlanguage.gov/howto/guidelines; Black's Law Dictionary 1499 (9th ed. 2009) (``shall'' can 
be read either as permissive or mandatory).
    Some of the Department's rules as proposed in the NPRM used the 
term ``shall.'' The final version eliminates the term from these 
proposed subsections: Sec. Sec.  718.2(c), 718.202(a)(3), 
718.305(b)(1)(iii), 718.305(b)(4), 718.305(d)(3), Part 718 Appendix C, 
725.1(g), 725.309(c), 725.309(c)(1), 725.418(a), 725.418(a)(3), and 
725.418(d). The final rule also makes similar technical changes to the 
following subsections: Sec. Sec.  725.2(c), 725.101(a)(4), 
725.101(a)(32)(i) through (iv), 725.101(b), 725.309(a), 725.309(c)(2) 
through (4), 725.309(d), 725.418(b)-(c). (All references are to 
regulations as designated in the final rule.) Although not included in 
the NPRM, the Department has revised these additional subsections to 
eliminate the term ``shall'' from all subsections of each amended 
regulation. No change in meaning is intended.

Section-by-Section Explanation

20 CFR 718.205 Death due to pneumoconiosis
    (a) Section 718.205 sets forth the criteria for establishing that a 
miner's death was due to pneumoconiosis. The Department proposed 
revising Sec.  718.205 to: (1) Clarify that some survivors need not 
prove the miner died due to pneumoconiosis to be entitled to benefits 
given the ACA's revival of Section 422(l); (2) expand the criteria to 
include the Section 411(c)(4) 15-year presumption of death due to 
pneumoconiosis for claims governed by the ACA amendments; and (3) 
eliminate outmoded provisions. 77 FR at 19459-60. In particular, the 
Department proposed revising the ``traumatic injury'' provision in 
Sec.  718.205(c)(4) and redesignating it as Sec.  718.205(b)(5). 
Section 718.205(c)(4) currently precludes survivor entitlement where 
the miner's death was caused by a

[[Page 59103]]

traumatic injury or a medical condition unrelated to pneumoconiosis 
``unless the evidence establishes that pneumoconiosis was a 
substantially contributing cause of death.'' 20 CFR 718.205(c)(4) 
(2011). To implement the 15-year presumption and clarify that certain 
survivors could establish this required causal connection by 
presumption, the Department proposed revising this last clause to read 
``unless the claimant establishes (by proof or presumption) that 
pneumoconiosis was a substantially contributing cause of death.'' 77 FR 
19460, 19475.
    (b) One comment asks the Department to adopt a blanket rule that a 
survivor is not entitled to benefits when the miner commits suicide. 
This commenter argues that suicide should never be compensable, even 
where the survivor establishes that the miner suffered from complicated 
pneumoconiosis and invokes the Section 411(c)(3) irrebuttable 
presumption of entitlement, 30 U.S.C. 921(c)(3). The comment states 
that allowing compensation in these circumstances is at odds with other 
Federal workers' compensation statutes (including the Longshore and 
Harbor Workers' Compensation Act, 33 U.S.C. 901-950), most state 
workers' compensation systems, and public policy. The comment points to 
Benefits Review Board and Sixth Circuit case precedent holding that a 
survivor cannot recover benefits when a miner commits suicide.
    Another comment strongly objects to this commenter, stating that 
survivors should not be deprived of benefits in those tragic cases 
where the miner commits suicide. This comment notes that the survivors 
have likely nursed the disabled miner as his physical condition 
deteriorated and contends that coal mine operators should bear 
responsibility for the pain and psychological problems pneumoconiosis 
causes.
    The final rule treats suicide like any other traumatic event that 
ends a miner's life. There is no basis in the statute or legislative 
history to draw a distinction for suicide. Since 1983, the regulations 
have explicitly recognized that pneumoconiosis might be a substantially 
contributing cause of a death even when the miner's death was 
immediately caused by a traumatic injury. When the Department first 
promulgated Sec.  718.205, the regulation contained no provision 
addressing traumatic injury or a principal cause of death other than 
pneumoconiosis. But the Department noted legislative history 
demonstrating Congress' intent ``that traditional workers' compensation 
principles such as those, for example, which permit a finding of 
eligibility where the totally disabling condition was significantly 
related to or aggravated by the occupational exposure be included 
within such regulations.'' 45 FR 13678, 13690 (Feb. 29, 1980) citing S. 
Rep. No. 209, 95th Cong., 1st Sess. 13-14 (1977). In 1983, the 
Department extensively revised Sec.  718.205 to implement the 1981 
Amendments to the BLBA, which restricted survivor eligibility by 
eliminating automatic entitlement for claims filed after 1981 and 
required all survivors to prove that the miner's death was due to 
pneumoconiosis. See generally 77 FR at 19456-57 (outlining statutory 
history). Based on the accompanying legislative history, the Department 
added Sec.  718.205(c)(4) to clarify that a survivor could prove 
entitlement by showing that pneumoconiosis substantially contributed to 
the miner's death even when the principal cause of death was a 
traumatic injury or a medical condition unrelated to pneumoconiosis. 48 
FR 24272, 24277-78 (May 31, 1983). Once again the Department noted 
Congress' desire to ``make the federal statute consistent with 
traditional workers' compensation principles.'' 48 FR at 24278.
    The majority of states allow workers' compensation death benefits 
when an otherwise compensable injury caused an employee to ``become 
dominated by a disturbance of the mind of such severity to override 
normal rational judgment'' which resulted in the employee taking his or 
her own life. 2 John L. Gelman, Modern Workers Compensation Sec.  115:5 
(West 2013); Lex K. Larson, Larson's Workers Compensation Law 
Sec. Sec.  38.01-38.05 (Matthew Bender, Rev. Ed. 2012); see also, e.g., 
Graver Tank & Mfg. Co. v. Indus. Comm'n, 399 P.2d 664, 668 (Ariz. 1965) 
(``where the original work-connected injuries suffered by the employee 
result in his becoming devoid of normal judgment and dominated by a 
disturbance of mind directly caused by his injury and its consequences, 
such as severe pain and despair, the self-inflicted injury'' may be 
compensable); Advance Aluminum Co. v. Leslie, 869 SW.2d 39, 41 (Ky. 
1994) (``[A]n employee's suicide is compensable if (1) the employee 
sustained an injury which itself arose in the course of and resulted 
from covered employment; (2) without that injury the employee would not 
have developed a mental disorder of such a degree as to impair the 
employee's normal and rational judgment; and (3) without that mental 
disorder, the employee would not have committed suicide.''). Contrary 
to the commenter's assertion, this standard--often called the ``chain 
of causation test''--has also been applied in cases arising under the 
Longshore and Harbor Workers' Compensation Act, a federal workers' 
compensation statute. E.g., Kealoha v. Director, OWCP, 713 F.3d 521, 
524-25 (9th Cir. 2013) (``Given the best-reasoned modern trend of case 
law, we hold that a suicide or injuries from a suicide attempt are 
compensable under the Longshore Act when there is a direct and unbroken 
chain of causation between a compensable work-related injury and the 
suicide attempt.''). The rule is also applied in states where suicide 
or attempted suicide is still a criminal offense. See, e.g., Kahle v. 
Plochman, Inc., 428 A.2d 913, 917 (N.J. 1981) (adopting the chain of 
causation rule); Petty v. Associated Transp., Inc., 173 SE.2d 321, 329 
(N.C. 1970) (same). Thus, contrary to the adverse comment, ``[i]n 
effect, no jurisdictions recognize suicide as an intentional act that 
automatically breaks the chain of causation to defeat a claim for death 
benefits.'' Campbell v. Young Motor Co., 684 P.2d 1101, 1102 (Mont. 
1984).
    The commenter primarily relies on the Sixth Circuit's decision in 
Johnson v. Peabody Coal Co., 26 F.3d 618 (6th Cir. 1994), to support 
the view that a miner's suicide should always bar his survivors' 
entitlement. Johnson considered Sec.  718.205(c)(4) in the suicide 
context. The court found the Act's legislative history to be silent on 
whether psychological injury may establish the causal link between 
pneumoconiosis and death. In part because the then-applicable 1981 
Amendments ``were designed to limit, not expand benefits,'' 26 F.3d at 
620, the court concluded that benefits should not be paid to the 
survivors of a miner who commits suicide. But that important reasoning 
is no longer valid because the ACA amendments repealed many of the 
restrictions on benefits that were instituted by the 1981 Amendments 
and considered by the Johnson court. Accordingly, the Department does 
not view the Johnson decision as dispositive. Instead, compensating a 
miner's survivors where the miner's suicide is causally linked to 
pneumoconiosis is consistent with workers' compensation principles and 
underlying Congressional intent.
    The final rule also clarifies the Department's longstanding view 
that suicide does not preclude entitlement once the survivor invokes 
the Section 411(c)(3) irrebutable presumption of entitlement by 
establishing that the miner suffered from complicated pneumoconiosis. 
This result is

[[Page 59104]]

compelled by the presumption's plain language. The provision is simply 
written: ``If a miner is suffering or suffered from a chronic dust 
disease of the lung [that is described by the statutory criteria for 
complicated pneumoconiosis], then there shall be an irrebuttable 
presumption that he is totally disabled due to pneumoconiosis or that 
his death was due to pneumoconiosis, or that at the time of his death 
he was totally disabled by pneumoconiosis[,] as the case may be.'' 30 
U.S.C. 921(c)(3). The language of the presumption itself renders the 
cause of the miner's death--even a death by suicide--irrelevant to the 
entitlement inquiry. ``[T]he presumption operates conclusively to 
establish entitlement to benefits.'' Usery v. Turner Elkhorn Mining 
Co., 428 U.S. 1, 11 (1976). The Supreme Court explained in upholding 
Section 411(c)(3) against constitutional challenge that the 
presumption's effect ``is to grant benefits to the survivors of any 
miner who during his lifetime had complicated pneumoconiosis arising 
out of employment in the mines, regardless of whether the miner's death 
was caused by pneumoconiosis.'' Id. at 24 (emphasis added). Although 
the Court acknowledged that an unrelated death ``can hardly be termed a 
`cost' of the operator's business,'' it still concluded that the 
``clear'' intent of the presumption was not to provide benefits 
``simply as compensation for damages due to the miner's Death, but as 
deferred compensation for injury suffered during the miner's lifetime 
as a result of his illness itself.'' Id. at 25. See also Gray v. SLC 
Coal Co., 176 F.3d 382, 386-87 (6th Cir. 1999) (agreeing with 
Department's view that Sec.  718.205(c)(4) traumatic injury provision 
does not preclude survivor of miner who committed suicide from pursuing 
benefits under Section 411(c)(3) presumption); USX Corp. v. Director, 
OWCP, 19 F.3d 1431 (4th Cir. 1994) (unpublished table decision) (citing 
Usery and affirming survivor's benefits award under Section 411(c)(3), 
notwithstanding Sec.  718.205(c)(4), where miner's death was caused by 
a non-work-related tractor accident).
    In sum, the final rule allows the survivors of a miner who 
committed suicide to prove death due to pneumoconiosis by demonstrating 
either that the suicide was causally linked to pneumoconiosis or by 
invoking the Section 411(c)(3) irrebutable presumption of entitlement. 
The Department believes these changes will have little practical impact 
on claim adjudications given the ACA's revitalization of automatic 
survivors' entitlement, which also makes the cause of a miner's death 
irrelevant if the miner was entitled to lifetime benefits. If the 
miner's claim was not awarded, the Department anticipates that his 
survivors will be able to demonstrate a link between disease and 
suicide only in rare cases.
    (c) No further comments on this section were received and the 
Department has promulgated the remainder of the regulation as proposed.
20 CFR 718.305 Presumption of pneumoconiosis
    (a) Section 718.305 implements the Section 411(c)(4) 15-year 
presumption. This statutory section provides a rebuttable presumption 
of total disability or death due to pneumoconiosis if the miner ``was 
employed for fifteen years or more in one or more underground coal 
mines'' or in a coal mine other than an underground mine in conditions 
``substantially similar to conditions in an underground mine'' and 
suffers or suffered from ``a totally disabling respiratory or pulmonary 
impairment.'' 30 U.S.C. 921(c)(4). Because current Sec.  718.305 
describes the presumption's requirements using language largely taken 
verbatim from the statute and offers little additional guidance 
regarding how the presumption may be invoked or rebutted, the 
Department proposed substantial revisions to clarify the presumption's 
operation. The proposed rule also eliminated obsolete provisions.
    (b) Invocation. Three comments object to proposed Sec.  
718.305(b)(2), which states that ``[t]he conditions in a mine other 
than an underground mine will be considered `substantially similar' to 
those in an underground mine if the miner was exposed to coal-mine dust 
while working there.'' 77 FR at 19475. The Department explained in the 
preamble that under this standard, a claimant would not need to produce 
evidence about underground mining conditions and that it was incumbent 
upon the fact finder to compare the claimant's non-underground mining 
exposure with those conditions known to exist in underground mines. 77 
FR at 19461. The Department cited several circuit court cases, 
including Director, OWCP v. Midland Coal Co., 855 F.2d 509, 512 (7th 
Cir. 1988), and Benefits Review Board cases which had adopted this 
approach.
    The commenters that object to this section point out that although 
the preamble states that the fact finder must compare the miner's non-
underground mine exposure with underground mine conditions, the 
regulation itself only requires that a claimant demonstrate some coal-
mine-dust exposure in non-underground mining. They contend this is 
contrary to the statute's plain language because it does not require 
the claimant to prove any type of similarity between exposures in 
underground and non-underground work. The comments also state that the 
Department should adopt an objective standard for proving substantial 
similarity (although no comment suggests a particular standard) and 
that the test should take into consideration certain studies showing 
that non-underground miners rarely develop disabling pneumoconiosis. 
One comment notes that administrative law judges do not necessarily 
have the requisite expertise to compare an individual non-underground 
miner's exposure to usual conditions in underground mining. Another 
comment suggests that OWCP confer with the Mine Safety and Health 
Administration and the National Institutes of Health to develop a 
standard.
    Two comments support proposed Sec.  718.305(b)(2) and the adoption 
of the Midland Coal standard. One states that it is a common sense rule 
that administrative law judges have had no problem applying. The 
commenters argue that any rule that requires a claimant to quantify a 
miner's dust exposure would be impractical. The commenters also note 
that the potential exposure in non-underground mining is actually 
greater than in underground mining because no ventilation systems 
mitigate the exposure. These comments also disagree with the other 
commenters' representations that certain medical studies demonstrate 
non-underground miners are not at increased risk for pneumoconiosis, 
especially once silicosis is taken into account.
    The Department has revised Sec.  718.305(b)(2) to clarify the 
standard. The Department agrees with those comments that noted the 
proposed rule could be interpreted as allowing a ``substantial 
similarity'' finding when the miner was exposed to any coal-mine dust 
in non-underground coal mining. This would not satisfy the statutory 
standard and was not the Department's intent.
    The final rule's revised language clarifies the Department's intent 
about how the substantial similarity analysis should be conducted. The 
final rule acknowledges, as the Seventh Circuit recognized in Midland 
Coal, a fundamental premise underlying the BLBA, as demonstrated by the 
legislative history, i.e., that ``underground mines are dusty.'' 
Midland Coal, 855 F.2d at 512. Given

[[Page 59105]]

that legislative fact, it is unnecessary for a claimant to prove 
anything about dust conditions existing at an underground mine for 
purposes of invoking the 15-year presumption. Instead, the claimant 
need only focus on developing evidence addressing the dust conditions 
prevailing at the non-underground mine or mines at which the miner 
worked. The objective of this evidence is to show that the miner's 
duties regularly exposed him to coal mine dust, and thus that the 
miner's work conditions approximated those at an underground mine. The 
term ``regularly'' has been added to clarify that a demonstration of 
sporadic or incidental exposure is not sufficient to meet the 
claimant's burden. The fact-finder simply evaluates the evidence 
presented, and determines whether it credibly establishes that the 
miner's non-underground mine working conditions regularly exposed him 
to coal mine dust. If that fact is established to the fact-finder's 
satisfaction, the claimant has met his burden of showing substantial 
similarity. And if the periods of regular exposure in non-underground 
mine employment (combined with any underground mine employment) total 
15 years or more, the claimant will be entitled to invoke the 
presumption if a total respiratory or pulmonary disability is also 
established. This procedure will also alleviate one commenter's concern 
that some administrative law judges may not be knowledgeable about 
conditions in underground mines.
    To the extent the comments urge the Department to adopt technical 
comparability criteria, such as requiring a claimant to produce 
scientific evidence specifically quantifying the miner's exposure to 
coal mine dust during non-underground mining, the Department rejects 
the suggestion. Benefit claimants, who must bear the burden of proving 
substantial similarity to invoke the presumption, generally do not 
control this type of technical information about the mines in which the 
miner worked. See generally Usery, 428 U.S. at 29 (noting that 
``showing of the degree of dust concentration to which a miner was 
exposed [is] a historical fact difficult for the miner to prove.''). 
Instead, the coal mine operators control dust-sampling and similar 
information about their mines. While this information is publicly 
available from the Mine Safety and Health Administration for some 
mines, it may not be relevant or available in any particular case. Dust 
sampling in non-underground mines is done on a designated-position 
basis (e.g., bulldozer operator, driller). See generally 30 CFR 71.201 
et seq. Thus, the results may not be relevant to miners doing other 
jobs and certainly would not be an adequate basis for the Department to 
adopt an exposure rule for all non-underground miners.
    Instead, the Department believes the standard should be one that 
may be satisfied by lay evidence addressing the individual miner's 
experiences. Congress enacted the Section 411(c)(4) presumption to 
assist miners and their survivors in establishing entitlement to 
benefits, and also permitted certain claimants to prove entitlement by 
lay evidence. 30 U.S.C. 923(b). Putting insurmountable hurdles in 
claimants' paths does not comport with that intent. Moreover, because a 
claimant's dust exposure evidence will be inherently anecdotal, it 
would serve no purpose for the Department to develop an objective, and 
therefore dissimilar, benchmark of underground mine conditions for 
comparison purposes. The legislative fact that underground coal mines 
are dusty is fully sufficient for this purpose. Of course, nothing 
would preclude a coal mine operator from introducing evidence--
including any technical data within its control--showing that the 
particular miner was not regularly exposed to coal mine dust during his 
non-underground coal mine employment.
    The Department also does not believe that reviewing current medical 
and scientific literature on the prevalence of pneumoconiosis in non-
underground miners would be useful in promulgating this particular 
rule. By explicitly making the presumption available to at least some 
non-underground miners, Section 411(c)(4) finds as a legislative fact 
that these miners can develop pneumoconiosis. Moreover, the statute 
focuses the substantial similarity question on a comparison of 
conditions existing at the different types of mines, not on the medical 
question of whether certain exposures do or do not lead to 
pneumoconiosis. See Midland Coal, 855 F.2d at 512 (``Congress focused 
specifically on dust conditions in enacting the `substantial 
similarity' provision.'') The Department is not free to depart from 
Congress' express intent on this issue. If the particular miner did 
not, in fact, suffer from pneumoconiosis, the coal mine operator will 
be able to rebut the presumption.
    (c) Rebuttal. The Department proposed Sec.  718.305(d) to set out 
the burden of proof on the party opposing entitlement to rebut the 
presumption in both miners' and survivors' claims. The proposed 
rebuttal standards were modeled on language contained in both the 
statutory presumption itself and current Sec.  718.305(d), which were 
used in claims filed before January 1, 1982. Applying the statutory 
limitations imposed on rebuttal, proposed Sec.  718.305(d) provided 
that the party opposing entitlement could rebut the presumption in only 
two ways: Showing that the miner did not have pneumoconiosis or that 
his disability or death did not arise out of coal-mine-dust exposure. 
For this second method, proposed Sec.  718.305(d)(1)(ii) (for miners' 
claims) and Sec.  718.305(d)(2)(ii) (for survivors' claims) provided 
that the presumption could be rebutted by proof that the miner's 
respiratory disability or death ``did not arise in whole or in part out 
of dust exposure in the miner's coal mine employment.'' 77 FR at 19475. 
The Department explained in the preamble that this language had been 
interpreted by the courts, in both Section 411(c)(4) and the similar 20 
CFR 727.203(b)(3) context, as requiring the party opposing entitlement 
to ``rule out'' coal mine employment as a cause of the miner's 
disabling respiratory or pulmonary impairment. 77 FR at 19463.
    One commenter argues that the limitations on rebuttal set forth in 
Section 411(c)(4) do not apply to coal mine operators under the Usery 
decision. Several comments acknowledge that the ``in whole or in part'' 
standard in the proposed rule is the equivalent of the ``rule-out'' 
standard mentioned in the preamble, but express disagreement with the 
rule-out standard. They note that claimants who attempt to establish 
entitlement without benefit of the presumption must show that 
pneumoconiosis was a ``substantially contributing cause'' of disability 
or death, and cannot recover if pneumoconiosis was only an 
insignificant or ``de minimis'' cause of disability or death under 
current Sec.  718.204(c)(1) and Sec.  718.205(c)(2). They also contend 
that a ``rule-out'' requirement improperly imposes a different standard 
on operators because it requires them to establish that pneumoconiosis 
was not even an insignificant or de minimis cause of disability or 
death. One comment argues that by including the ``rule-out'' standard 
in the preamble (rather than the regulatory text), the Department has 
violated its duty to publish its rules for public comment. This comment 
contends that if the ``rule-out'' standard is intended to establish a 
party's burden of proof on rebuttal, it violates the Administrative 
Procedure Act (APA) as construed by the Supreme Court in Director, OWCP 
v. Greenwich Collieries, 512 U.S. 267 (1994). This comment also states 
that if the ``rule-out'' standard is intended to define the legal 
criteria for

[[Page 59106]]

rebuttal, it has no authoritative source and is inconsistent with the 
``reasonable medical certainty'' standard it asserts applies in BLBA 
claim adjudications.
    Two comments generally support the proposed rule. One states that 
the presumption should be strong and remarks that ensuring operators' 
liability for coal-mine related lung disease creates an incentive for 
operators to comply with dust-control standards.
    The final rule adopts an approach similar to the proposed rule. But 
the Department has made several revisions to clarify the rebuttal 
provisions and to accommodate some of the concerns expressed in the 
comments. We explain those changes below.
    Miners' claims. A miner seeking BLBA benefits is required to 
establish, with direct evidence or via presumption, four elements of 
entitlement: (1) Disease: that the miner suffers from pneumoconiosis in 
clinical or legal form, or both; (2) disease causation: that the 
pneumoconiosis arose at least in part out of coal mine employment; (3) 
disability: that the miner has a pulmonary or respiratory impairment 
that prevents the performance of the miner's usual coal mine work; and 
(4) disability causation: that the miner's pneumoconiosis contributes 
to that disability. 20 CFR 725.202(d)(2); see, e.g., Morrison v. Tenn. 
Consol Coal Co., 644 F.3d 473, 478 (6th Cir. 2011); Lane v. Union 
Carbide Corp., 105 F.3d 166, 170 (4th Cir. 1997). If a miner proves the 
disability element by a preponderance of the evidence, then Section 
411(c)(4) presumes the remaining three entitlement elements. But 
because the presumption is rebuttable, the party opposing entitlement 
must be given an opportunity to show by a preponderance of the evidence 
that the three presumed elements (disease, disease causation, and 
disability causation) are not in fact present. If the opposing party 
establishes that the miner does not have a lung disease related to coal 
mine employment (elements one and two) or that the miner's totally 
disabling respiratory or pulmonary impairment is unrelated to his 
pneumoconiosis (element four), the presumption is rebutted.
    The Department has revised Sec.  718.305(d) in this final rule to 
more clearly reflect that all three of the presumed elements may be 
rebutted. Section 718.305(d)(1)(i) provides that the party opposing 
entitlement may rebut the presumption by proving that the miner has 
neither legal nor clinical pneumoconiosis, including where the miner's 
clinical pneumoconiosis did not arise from covered coal mine employment 
(disease and disease causation). See Barber v. Director, OWCP, 43 F.3d 
899, 901 (4th Cir. 1995) (party rebutting Section 411(c)(4) presumption 
must demonstrate absence of both clinical and legal pneumoconiosis); 77 
FR at 19462-63 (same). Section 718.305(d)(1)(ii) provides that rebuttal 
may also be accomplished when the party opposing the claim shows that 
no part of the miner's respiratory disability was caused by 
pneumoconiosis (disability causation). See generally Mingo Logan Coal 
Co. v. Owens, ------ F.3d ------, ------, 2013 WL 3929081, *4 (4th Cir. 
2013) (outlining three elements available for rebuttal under Section 
411(c)(4)).
    These revisions also should relieve the concern expressed in the 
comments that the limitations Section 411(c)(4) places on rebuttal are 
not applicable to coal mine operators. Enacted in 1972, Section 
411(c)(4) provides that ``[t]he Secretary may rebut such presumption 
only by establishing that (A) such miner does not, or did not, have 
pneumoconiosis, or that (B) his respiratory or pulmonary impairment did 
not arise out of, or in connection with, employment in a coal mine.'' 
In 1976, the Supreme Court held that ``the Sec.  411(c)(4) limitation 
on rebuttal evidence is inapplicable to operators.'' Usery, 428 U.S. at 
35. Nevertheless, when the Department adopted Sec.  718.305 in 1980, it 
listed the same two exclusive methods of rebuttal, but did not limit 
their application to the Secretary. The explanation for the change is 
simple. The 1978 amendments to the BLBA expanded the definition of 
``pneumoconiosis'' to include what is now known as ``legal 
pneumoconiosis,'' i.e., any ``chronic lung disease or impairment . . . 
arising out of coal mine employment.'' 20 CFR 718.201(a)(2). This 
amendment rendered proof that a miner's disability resulted from a lung 
disease caused by coal dust exposure that was not pneumoconiosis no 
longer a valid method of rebuttal because every disabling lung disease 
caused by coal dust exposure is legal pneumoconiosis. Thus, the 
scenario motivating Usery's discussion of the rebuttal-limiting 
sentence no longer exists: The only ways that any liable party--whether 
a mine operator or the government--can rebut the 15-year presumption 
are the two set forth in the presumption, which encompass the disease, 
disease-causation, and disability-causation entitlement elements. 
Authorities post-dating this amendment that state the coal mine 
operator is limited to the statutory rebuttal methods simply reflect 
that fact. See, e.g., Rose v. Clinchfield Coal Co., 614 F.2d 936, 939 
(4th Cir. 1980).
    The Department does not believe that the comment's discussion of 
Supreme Court decisions limiting an agency's power to re-interpret 
statutes that have been construed by the Court as unambiguous compels 
the Department to limit the proposed rebuttal standards to the 
Secretary. See Nat'l Cable & Telecomms. Ass'n v. Brand X Internet 
Servs., 545 U.S. 967 (2005), United States v. Home Concrete & Supply, 
Inc., -- U.S. --, 132 S. Ct. 1836 (2012). These cases are beside the 
point: Neither forbid an agency from adopting a regulation that 
conflicts with a prior judicial decision when the new regulation is 
compelled by a subsequent amendment to the statute. Moreover, as 
already discussed, there simply are no other facts presumed under the 
Sec.  411(c)(4) presumption that a coal mine operator could rebut. 
Thus, the Department believes that applying the Sec.  718.305(d) 
rebuttal standards to all parties opposing entitlement, as proposed, 
will prove more helpful to the regulated public by informing it of the 
ways it can rebut the presumption.
    The Department is also not persuaded by those comments that 
advocate applying the ``substantially contributing cause'' standard for 
disability causation set forth at Sec.  718.204(c)(1) to the Sec.  
718.305(d) rebuttal standard. The comments correctly state that the 
proposed rules apply a different disability-causation standard to 
claims governed by the general Part 718 criteria than those in which 
the miner successfully invokes the Section 411(c)(4) presumption. But 
that difference is warranted by the statutory section's underlying 
intent and purpose. Based on evidence that miners who worked for at 
least fifteen years were more likely to develop pneumoconiosis, 
Congress chose to extend the presumption only to those miners who 
worked in the mines for at least fifteen years and who were totally 
disabled by respiratory or pulmonary impairments. See generally S. Rep. 
No. 92-743 at 13 (1972), reprinted in 1972 U.S.C.C.A.N. 2305, 2316-17. 
Congress adopted the presumption to ``[r]elax the often insurmountable 
burden of proving eligibility'' these miners faced. S. Rep. No. 92-743 
at 1. In short, Congress effectively singled out these miners for 
special treatment. Adopting a rigorous rebuttal standard in those 
limited circumstances in which the opposing party cannot demonstrate 
the absence of coal-mine-related pneumoconiosis (and thus can only 
rebut by showing that the

[[Page 59107]]

miner's disability is not related to pneumoconiosis) is consistent with 
Congress' approach. See generally Consolidation Coal Co. v. Director, 
OWCP, 721 F.3d 789, 795 (7th Cir. 2013) (noting ``[i]t is no secret 
that the 15-year presumption is difficult to rebut'').
    The Department has consistently interpreted Section 411(c)(4) as 
requiring the rebutting party to show that the miner's disability did 
not arise ``in whole or in part'' from coal mining. See 20 CFR 
718.305(d) (2012). And the courts considering the rebuttal provisions 
have concurred with the Department's use of the ``in whole or in part'' 
standard. See, e.g., Blakley v. Amax Coal Co., 54 F.3d 1313, 1320 (7th 
Cir. 1995); Bosco v. Twin Pines Coal Co., 892 F.2d 1473, 1481 (10th 
Cir. 1989); Rose, 614 F.2d at 939; Colley & Colley Coal Co. v. 
Breeding, 59 Fed. Appx. 563, 567 (4th Cir. Mar. 11, 2003) (unpub.). The 
``in no part'' standard the Department has adopted in the final rule is 
a reasonable interpretation of the statutory language and effectuates 
Section 411(c)(4)'s purposes. It is intended to simplify and clarify 
the ``in whole or in part standard.''
    Contrary to one commenter's suggestion, the Sec.  718.305(d) 
rebuttal standards adopted by the final rule do not violate the burden 
of proof imposed by the APA. As interpreted by the Supreme Court, the 
APA requires the proponent of a rule or order to bear the burden of 
persuasion by a preponderance of the evidence to prevail. Greenwich 
Collieries, 512 U.S at 277-78. The ``in no part'' standard does not run 
afoul of this holding because it is the fact that must be established 
and not the ``degree of certainty needed to find a fact or element 
under the preponderance standard.'' Metropolitan Stevedore Co. v. 
Rambo, 521 U.S. 121, 129 (1997). As the Supreme Court has explained, 
``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.'' Id. (citing 
Greenwich Collieries v. Director, OWCP, 990 F.2d 730, 736 (3d Cir. 
1993)). The ``in no part'' standard also does not govern the level of 
certainty with which a medical opinion must be expressed to be 
considered probative evidence; the rule provides only what facts must 
be established to rebut the presumption. Thus, the commenter's fears 
that the standard requires a higher level of certainty in medical 
opinions than is currently required are unfounded. Moreover, contrary 
to the commenter's statement, a medical opinion need not be expressed 
with ``reasonable medical certainty'' to be probative of a medical fact 
under the BLBA. Instead, it is sufficient if the opinion is documented 
and constitutes a reasoned medical judgment. See, e.g., Mancia v. 
Director, OWCP, 130 F.3d 579, 588 (3d Cir. 1997). Thus, a party 
opposing entitlement may rebut the presumption when the preponderance 
of the evidence, including medical opinions that are documented and 
reasoned exercises of physicians' medical judgment, demonstrates that 
pneumoconiosis played no role in the miner's respiratory disability.
    Survivors' claims. In the survivor's context, a claimant who 
establishes the invocation criteria receives a presumption that the 
miner died due to pneumoconiosis. This presumption encompasses the two 
entitlement elements in survivors' claims: Disease (that the miner had 
clinical and legal pneumoconiosis) and death (that the miner died due 
to pneumoconiosis). For the reasons stated above regarding rebuttal in 
a miner's claim, the Department has made parallel changes to Sec.  
718.305(d)(2) in this final rule to clarify how the presumption may be 
rebutted when the party opposing entitlement seeks to disprove these 
presumed facts.
    (d) No further comments were received and the Department has 
promulgated the remainder of the regulation as proposed.
20 CFR 725.212, 725.218, 725.222 Conditions of entitlement
    (a) This series of rules prescribes the conditions required for a 
miner's survivors to establish entitlement to benefits. Section 725.212 
applies to a miner's surviving spouse or a surviving divorced spouse, 
Sec.  725.218 applies to a deceased miner's children, and Sec.  725.222 
applies to surviving parents and siblings. The Department proposed 
revising these regulations to omit certain conditions of entitlement 
applicable only to claims filed prior to June 30, 1982, and to add new 
conditions of entitlement made applicable to certain claims by the ACA 
amendments. Specifically, ACA Section 1556(b) amended Section 422(l) to 
revive automatic entitlement for survivors of miners awarded lifetime 
disability benefits and whose claims meet the effective date 
requirements of ACA Section 1556(c). Proposed Sec. Sec.  
725.212(a)(3)(ii), 725.218(a)(2), and 725.222(a)(5)(ii) implement this 
amendment by clarifying that qualifying survivors who file a claim for 
survivors' benefits after January 1, 2005, that is pending on or after 
March 23, 2010, are not required to establish that the miner died due 
to pneumoconiosis. 77 FR at 19467; 19477-78.
    (b) Two commenters, who submitted identical comments, object 
generally to the Department's construction of the statute. They argue 
that the ACA restores derivative benefits to survivors only if the 
related miner's disability claim was filed after January 1, 2005, and 
pending on or after March 23, 2010. One commenter generally supports 
the Department's proposal to implement the ACA amendment restoring 
derivative survivors' benefits.
    The Department continues to believe, as explained in the proposal 
(77 FR at 19467-68), that the ACA amendments apply to all claims, 
including survivors' claims, meeting the effective date criteria. The 
plain language of Section 1556(c) states that the amendments apply to 
``claims filed . . . after January 1, 2005, that are pending on or 
after [March 23, 2010].'' Public Law 111-148, 1556(c), 124 Stat. 119, 
260(c) (2010). Nothing in the text of ACA Section 1556(c) or Section 
1556(b) suggests that the amendment only applies to disability claims 
by miners and not to survivors' claims. To the contrary, the most 
natural reading of the unqualified word ``claims'' in Section 1556(c) 
encompasses both miners' and survivors' claims. The four courts that 
have considered the issue have unanimously agreed with this reading and 
held that the amendment restoring derivative benefits applies to 
survivors' claims that satisfy Section 1556(c)'s effective-date 
requirements even if the related miner's disability claim did not. See 
Marmon Coal Co. v. Director, OWCP [Eckman], ------ F.3d ------, ------ 
n.3, 2013 WL 4017160, *6 n.3 (3d Cir. 2013) (``the ACA revives Sec.  
932(l)'s automatic benefits to the extent that a survivor files a claim 
for benefits after January 1, 2005, that is pending on or after the 
ACA's effective date, March 23, 2010.''); U.S. Steel Mining v. 
Director, OWCP [Starks], 719 F.3d 1275, 1285 (11th Cir. 2013) 
(``Section 1556(c) does not distinguish between miners' claims and 
survivors' claims. The plain meaning of Sec.  1556(c) is that anyone--
miner or survivor--who filed a claim for benefits after January 1, 
2005, that remained pending on March 23, 2010, can receive the benefit 
of the amendments.''); Vision Processing, LLC v. Groves, 705 F.3d 551, 
555 (6th Cir. 2013) (``Language and context show that the 2010 
amendments apply to all survivor-benefit and all miner-benefit claims 
filed after January 1, 2005, and pending on March 23, 2010.''); West 
Virginia CWP Fund v. Stacy, 671 F.3d 378, 388 (4th Cir. 2011)

[[Page 59108]]

(``Because Congress used the term `claims' [in ACA Section 1556(c)] 
without any qualifying language, and because both miners and their 
survivors may file claims under the BLBA . . . the plain language 
supports the Director's position that amended Sec.  932(l) applies to 
survivors' claims that comply with Section 1556(c)'s effective date 
requirements.'').
    The Department's conclusion is further informed by Section 
1556(c)'s impact on non-survivor claims. Section 1556(c)'s effective-
date requirements apply not just to claims subject to revived Section 
422(l) (Section 1556(b)), but also to claims subject to the revived 
Section 411(c)(4) 15-year presumption (Section 1556(a)). The 15-year 
presumption explicitly applies to claims brought by both miners and 
survivors. See 30 U.S.C. 921(c)(4). The commenters' proposed statutory 
construction would create an inappropriate dichotomy: the term 
``claims'' in subsection (c) would mean ``miners' and survivors' 
claims'' when considering entitlement to the fifteen-year presumption 
under subsection (a), but only ``miners' claims'' when considering 
entitlement to derivative benefits under subsection (b). This 
incongruous result violates the ``basic canon of statutory construction 
that identical terms within an Act bear the same meaning.'' Estate of 
Cowart v. Nicklos Drilling Co., 505 U.S. 469, 479 (1992). Indeed, the 
Fourth Circuit has rejected this construction as ``tortured.'' Stacy, 
671 F.3d at 389.
    To further support their position, the commenters note that because 
Section 422(l) ostensibly relieves survivors of the obligation to file 
claims, it is illogical to use the survivor's claim filing date as the 
operative date for determining eligibility under Section 422(l). The 
context in which Congress adopted the ACA amendments leads to a 
different conclusion. At the time Section 1556 was enacted, both miners 
and survivors filed claims. Indeed, except for the survivors of miners 
who had filed successful claims before 1982, the only way a survivor 
could obtain benefits was to file an independent claim, even if the 
miner had been awarded lifetime disability benefits. See, e.g., Hill v. 
Peabody Coal Co., 94 Fed. Appx. 298, 299 (6th Cir. 2004) (unpub.). 
Thus, Congress knew when it restored derivative benefits in 2010 that 
independent survivors' claims were common. See generally Vimar Seguros 
y Reaseguros, S.A. v. M/V Sky Reefer, 515 U.S. 528, 554 (1995) 
(Congress is presumed to know the law, and to know how it has been 
interpreted.). Interpreted in that light, the term ``claim'' includes 
both miners' and survivors' claims. See Starks, 719 F.3d at 1285 
(``Just because the application of the amended Sec.  932(l) to a claim 
operates to eliminate the need for that claim does not render its 
application illogical or unworkable.''); Stacy, 671 F.3d at 388-89 
(``Although amended Sec.  932(l) states that a survivor is not required 
to file a new claim for benefits, the conclusion petitioner draws from 
this language--that the operative date for determining eligibility 
cannot be the date the survivor's claim was filed--simply does not 
follow.''); Groves, 705 F.3d at 556 (``Section 1556(b) eliminates the 
requirement that survivors file a claim before obtaining benefits; it 
does not prohibit such claims.''). See also B & G Constr. Co. v. 
Director, OWCP [Campbell], 662 F.3d 233, 244 n.12 (3d Cir. 2011) 
(``[S]urely a widow seeking benefits must file something in order to 
receive them. After all, notwithstanding section 1556 a claimant might 
not be the miner's real widow. But what a widow does not have to do is 
establish that the miner died from pneumoconiosis.'').
    The commenters also state that the proposed rule is inconsistent 
with how the Department interpreted the 1982 amendment to Section 
422(l) eliminating derivative benefits in claims filed after 1981. The 
Department then permitted derivative benefits in survivors' claims 
filed after 1981 so long as the related miner's disability claim was 
filed before 1982 and resulted in an award. The commenters cite 
Pothering v. Parkson Coal Co., 861 F.2d 1321 (3d Cir. 1988), to support 
their view. Pothering, which interpreted the text of the 1981 
amendment, has no bearing on the meaning of Section 1556(c), which uses 
entirely different language. The Department's interpretation of the 
1981 amendment's use of the term ``claim'' as meaning only miners' 
claims was compelled by its particular text and legislative history, 
which are inapplicable to Section 1556. As noted above, the Third 
Circuit itself has confirmed that the ACA's automatic entitlement 
provisions apply to survivors' claims filed within Section 1556's 
temporal limitations. Eckman, ------ F.3d at ------ n.3, 2013 WL 
4017160, *6 n.3. Other courts confronted with the Pothering argument 
have either specifically or implicitly rejected it. See Starks, 719 
F.3d at 1286 (rejecting Pothering argument and noting that ``[i]f [the 
Section 1556] context does not demand a variation in the meaning of the 
word `claim,' we do not know what context would. Any other reading of 
the word in this context is . . . tortured.'') (internal quotation 
marks omitted); Stacy, 671 F.3d at 388-89; Groves, 705 F.3d at 555-56.
    (c) No other comments were received concerning these sections, and 
the Department has promulgated these regulations as proposed.
20 CFR 725.309 Additional claims; effect of a prior denial of benefits
    (a) Section 725.309 addresses both the filing of additional claims 
for benefits and the effect of a prior denial. In its notice of 
proposed rulemaking, the Department proposed to revise the current rule 
to clarify how the ACA amendment restoring Section 422(l) derivative-
survivors' benefits applies when a survivor files a subsequent claim. 
77 FR at 19467-68; 19478. The proposed rule added a new paragraph, 
Sec.  725.309(d)(1), to clarify that a survivor need not establish a 
change in a condition of entitlement if the subsequent claim meets the 
requirements for entitlement under amended Section 422(l). The proposed 
rule also limited this exception to survivors whose prior claims were 
finally denied prior to March 23, 2010, i.e., before the ACA was 
enacted. Once a survivor files a claim subject to the ACA and that 
claim is denied, any subsequent claim the survivor files is subject to 
the usual rules of claim preclusion set forth in proposed Sec.  
725.309(c) because the subsequent claim asserts the same cause of 
action as the prior denied claim.
    (b) The Department received five comments asking it to abandon the 
proposed rule. These commenters list several related reasons for their 
request. They assert that ``re-opening'' denied survivors' claims 
violates the doctrine of res judicata, and that the ACA amendments do 
not create a new cause of action that would justify an exception to the 
doctrine or otherwise allow for re-opening of previously denied 
survivor claims. The commenters also suggest that the proposed rule 
violates ACA Section 1556(c), which restricts application of the 
amendments to claims filed after January 1, 2005. Finally, one 
commenter stated that the proposed rule does not clearly convey the 
Department's intent.
    Two comments support the proposed rule. One contends that the 
Department's decision to allow survivors to file subsequent claims is 
both compelled by the statute's remedial purposes and consistent with 
res judicata concepts.
    Although the Department declines to abandon the proposed rule, the 
final rule has been revised to more clearly convey the Department's 
intent. Specifically, the final rule

[[Page 59109]]

comprehensively describes the universe of survivors who are exempt from 
having to prove a change in a condition of entitlement under Sec.  
725.309(d) to pursue a subsequent claim. The proposed rule 
inadvertently excluded survivors whose prior claims were filed on or 
before January 1, 2005 that remained pending after the ACA's March 23, 
2010 enactment date. As explained in the NPRM, 77 FR at 19468, and 
discussed in detail below, the ACA's revival of Section 422(l)'s 
automatic survivor entitlement provision created a new cause of action. 
Thus, these survivors may take advantage of the amendment by filing a 
subsequent claim without being hindered by the findings made in the 
prior claim. Accordingly, the Department has modified Sec.  
725.309(c)(1) by adding two subparagraphs (Sec. Sec.  725.309(c)(1)(i)-
(ii)) to provide explicit filing and pendency date requirements for the 
prior claim that cover all survivor claims not previously adjudicated 
under amended Section 422(l). With this change, the final rule also 
makes clear that only a survivor whose prior claim was not subject to 
the Section 422(l) amendment may be found entitled to benefits on a 
subsequent claim without having to establish a change in a condition of 
entitlement.
    The Department is not persuaded by the comments that argue against 
allowing subsequent survivors' claims in these circumstances. The 
commenters' underlying assumption--that the Department's proposed rule 
re-opens previously denied claims--misperceives the rule. As the 
Department emphasized in its proposal, 77 FR at 19468, the ACA does not 
authorize reopening of previously denied claims and the proposed rule 
was not intended to reopen denied survivors' claims. See generally 
Eckman, ------ F.3d at ------, 2013 WL 4017160, *5 (a subsequent claim 
is a ``new assertion[] of entitlement'' that does not re-open a prior 
denied claim or ``disregard principles of finality and res judicata''); 
Union Carbide Corp. v. Richards, 721 F.3d 307, 314 (4th Cir. 2013) 
(``[R]es judicata is not implicated by [subsequent survivors'] claims 
since entitlement under Section 932(l), as revived by Section 1556, 
does not require relitigation of the prior findings that the miners' 
deaths were not due to pneumoconiosis.''). Instead, consistent with the 
plain language of the ACA, the rule is intended to make automatic 
entitlement available in subsequent claims, which are entirely new 
assertions of entitlement distinct from any previous claim. See Lovilia 
Coal Co. v. Harvey, 109 F.3d 445, 449 (8th Cir. 1997) (a ``claim'' 
under the BLBA refers to a distinct application for benefits, not an 
operator's general liability to a particular claimant).
    Importantly, the rule leaves the survivor's prior claim decision, 
and its underlying findings, in effect. This means that the survivor 
will not be entitled to benefits for any period of time pre-dating the 
prior denial. See 77 FR at 19468. Consequently, the rule is consistent 
with the Department's longstanding recognition that, for purposes of a 
subsequent claim, ``the correctness of [the prior decision's] legal 
conclusion'' must be accepted in adjudicating the latter application. 
Lisa Lee Mines v. Director, OWCP, 86 F.3d 1358, 1361 (4th Cir. 1996) 
(en banc); see also Richards, 721 F.3d at 317 & n.5 (limiting benefits 
period on subsequent survivor's claim to period after prior claim 
denial provides claimant ``meaningful benefits'' while also 
``mitigat[ing] the burden to the operator and respect[ing] the validity 
of the earlier denial.'').
    The commenters are also incorrect that the doctrine of res judicata 
precludes application of section 422(l) to a survivor's subsequent 
claim. Res judicata ``bars a party from suing on a claim that has 
already been `litigated to a final judgment by that party . . . and 
precludes the assertion by such parties of any legal theory, cause of 
action, or defense which could have been asserted in that action.' '' 
Ohio Valley Envtl. Coal. v. Arcoma Coal Co. (OVEC), 556 F.3d 177, 210 
(4th Cir. 2009) (quoting 18 James Wm. Moore et al., Moore's Federal 
Practice Sec.  131.10(1)(a) (3d ed. 2008). For res judicata to bar a 
subsequent action, ``three elements must be present: (1) A judgment on 
the merits in a prior suit resolving (2) claims by the same parties . . 
. , and (3) a subsequent suit based on the same cause of action.'' 
OVEC, 556 F.3d at 210 (internal quotation marks omitted). Res judicata 
is not applicable in this situation because a subsequent claim for 
automatic entitlement, arising by virtue of the ACA's 2010 amendment of 
the BLBA, is not the same cause of action as the original claim. 
Eckman, ------ F.3d at ------, 2013 WL 4017160, *6 (holding that a 
survivor's ``subsequent claim thus involves a different cause of 
action, and res judicata does not prevent [the survivor] from receiving 
survivors' benefits under the BLBA.'').
    The Department does not disagree with the notion, as expressed by 
one commenter, that causes of action are generally defined by a 
``transactional'' approach. Citing various legal precedents, the 
commenter states that a cause of action arises out of a common nucleus 
of facts and does not depend on a particular theory of recovery. It is 
undoubtedly correct that ``[a] claim [that] existed at the time of the 
first suit and `might have been offered' in the same cause of action, . 
. . is barred by res judicata.'' Aliff v. Joy Mfg. Co., 914 F.2d 39, 
43-44 (4th Cir. 1990). But a claim that did not exist at the time of 
the prior proceeding, because the new claim could not have been raised 
in the prior proceeding, is not so barred. Richards, 721 F.3d at 314-
15; OVEC, 556 F.3d at 210-11. The Supreme Court explained this 
principle: ``[w]hile [a prior] judgment precludes recovery on claims 
arising prior to its entry, it cannot be given the effect of 
extinguishing claims which did not even then exist and which could not 
possibly have been sued upon in the previous case.'' Lawlor v. Nat'l 
Screen Serv. Corp., 349 U.S. 322, 328 (1955).
    Contrary to the commenter's contention, it is well-recognized that 
a statutory amendment subsequent to a first action can create a new 
cause of action that is not barred by res judicata, even where the new 
action is based on the same facts as the prior one. Richards, 721 F.3d 
at 315 (``While typically it is a new factual development that gives 
rise to a fresh cause of action, changes in law can also have that 
effect.'') (internal citations omitted); Alvear-Velez v. Mukasey, 540 
F.3d 672 (7th Cir. 2008); Moore et al. at ] 131.22[3] (``when a new 
statute provides an independent basis for relief which did not exist at 
the time of the prior action, a second action on the new statute may be 
justified''). In Alvear-Velez, the Seventh Circuit clearly 
differentiated between ``changes in case law [which] almost never 
provide a justification for instituting a new action'' and ``statutory 
changes that occur after the previous litigation has concluded [which] 
may justify a new action.'' 540 F.3d at 678. As to the former, a change 
in precedent provides no relief from res judicata because it merely 
reflects the error in the prior decision, which the aggrieved party 
accepted by not appealing. Id.; Pittston Coal Group v. Sebben, 488 U.S. 
105, 122-23 (1988); Moore et al. at ] 131.22[3]. By contrast, no such 
appellate remedy is available where a statutory barrier precludes 
relief. Alvear-Velez, 540 F.3d at 678 n.4.
    Moreover, the second action is permissible where there is a 
statutory amendment because ``the rule against claim splitting, which 
is one component of res judicata, is inapplicable when a statutory 
change creates a course of action unavailable in the previous

[[Page 59110]]

action.'' Alvear-Velez, 540 F.3d at 678. See also Maldonado v. U.S. 
Attorney Gen., 664 F.3d 1369, 1377 (11th Cir. 2011) (court rejected a 
res judicata defense to the removal of an alien on a new statutory 
ground in a second proceeding--although for the same offense as in a 
prior proceeding--explaining that ``the doctrine does not say that a 
new claim is barred when it is based on a new theory not otherwise 
available at the time of the prior proceeding,'' and thus permitted 
removal based on the new statutory ground); Ljutica v. Holder, 588 F.3d 
119, 127 (2d Cir. 2009) (rejecting res judicata defense to a second 
removal proceeding--based on the same crime as the first proceeding--
because Congress created a new ground for removal subsequent to the 
first action); Dalombo Fontes v. Gonzales, 498 F.3d 1, 2-3 (1st Cir. 
2007) (noting in dicta that res judicata does not apply when Congress 
amends the statutory grounds for removal, ``[b]ecause a different and 
broader definition [of removal offenses] now controlled and that 
definition applied retroactively, the two proceedings did not involve 
the same claim or cause of action''); Marvel Characters, Inc., v. 
Simon, 310 F.3d 280, 287 (2d Cir. 2002) (rejecting res judicata defense 
because amendments to Copyright Act provided plaintiff ``an entirely 
new and wholly separate right than the renewal right,'' which could not 
have been adjudicated in the first action).
    Although one commenter states that ``authorities supporting the 
notion that a change in law does not create a new cause of action are 
legion,'' the two cases it cites are not persuasive authority on the 
issue of a statutory change. The two somewhat dated decisions it cites, 
Hurn v. Oursler, 289 U.S. 238 (1933), and Friederichsen v. Renard, 247 
U.S. 207 (1918), do not involve the doctrine of res judicta and do not 
address whether a change in statutory law would create a new cause of 
action.
    Even when viewed on a factual level, a survivor's subsequent claim 
that meets the ACA's filing and pendency requirements is a different 
cause of action. The determination of whether two proceedings involve 
the same cause of action requires close analysis of the underlying 
facts in each proceeding. See, e.g., Duhaney v. Attorney Gen., 621 F.3d 
340, 348 (3d Cir. 2010) (``the focus of the inquiry is whether the acts 
complained of were the same, whether the material facts alleged in each 
suit were the same, and whether the witnesses and documentation 
required to prove such allegations were the same'') (internal quotation 
marks omitted). Res judicata, however, does not apply when ``[a]though 
there are common elements of fact between the two . . . proceedings, 
the critical acts and the necessary documentation were different for 
the two proceedings.'' Id. at 349; see also Eckman, ------ F.3d at ----
--, 2013 WL 4017160, *6 (``The mere existence of common elements of 
fact between two claims does not establish the same cause of action if 
the critical acts and the necessary documentation were different for 
the two claims.''); Meekins v. United Transp. Union, 946 F.2d 1054, 
1058 (4th Cir. 1991) (res judicata inapplicable where a later suit 
``arises from events separate from those at issue in the first suit''). 
Moreover, it does not matter that the same ultimate remedy is available 
in both the first and second actions, as the cause of action springs 
out of the underlying facts, not the remedy. See Duhaney, 621 F.3d at 
349.
    Applying these principles in the context of survivors entitled 
under amended Section 422(l) shows that a subsequent claim is based on 
a different factual predicate than an original claim. In an original 
claim not subject to the ACA amendments, a survivor could recover only 
by proving that the miner's death was due to pneumoconiosis. See 20 CFR 
718.205. Resolution of this issue is based on an intensive review of 
medical evidence. The adjudicator is required to determine what 
condition or conditions resulted in the miner's death, as well as the 
etiology of those conditions. In contrast, the cause of the miner's 
death is not at issue in a survivor's subsequent claim awarded pursuant 
to amended Section 422(l), and medical evidence is wholly irrelevant. 
Rather, the survivor's entitlement is based solely on an administrative 
fact--whether the miner had been awarded benefits in his lifetime 
claim. See 30 U.S.C. 932(l). Thus, ``subsequent claims arise from 
operative facts that are separate and distinct from those underlying 
[the survivors'] initial claims, and therefore constitute new causes of 
action.'' Richards, 721 F.3d at 315. Accord Eckman, ------ F.3d at ----
--, 2013 WL 4017160, *6 (``material facts alleged'' in prior and 
subsequent survivor's claims were different; ``the subsequent claim 
thus involves a different cause of action'' not barred by res 
judicata).
    Precluding subsequent claims of survivors in these circumstances 
would not further the purposes of the res judicata doctrine in any 
event. ``[R]es judicata and collateral estoppel relieve parties of the 
cost and vexation of multiple lawsuits, conserve judicial resources, 
and, by preventing inconsistent decisions, encourage reliance on 
adjudication.'' Allen v. McCurry, 449 U.S. 90, 94 (1980); see generally 
18 Wright, Miller & Cooper, Federal Practice and Procedure Sec.  4403 
(2d ed. 2002). Where subsequent claims are based on automatic 
entitlement, there will be little need for factual development, and 
most such claims can be decided in summary fashion without protracted 
litigation or the expenditure of significant judicial resources. Res 
judicata should be used as a shield against vexatious (harassing) 
lawsuits or to conserve resources, not as a sword to defeat plainly 
meritorious claims.
    Furthermore, the danger of inconsistent decisions between original 
and subsequent claims is absent because the subsequent claim represents 
a different cause of action. In fact, the danger of inconsistency lies 
in the other direction. If res judicata bars survivors' subsequent 
claims, there would be different results for similarly situated 
survivors who satisfy the ACA requirements based solely on the fact 
that one previously failed to prove a fact (death due to 
pneumoconiosis) that is now wholly irrelevant. See C.I.R. v. Sunnen, 
333 U.S. 591, 599 (1948) (where revenue laws changed following original 
litigation, expressing concern that collateral estoppel will result in 
unequal treatment of taxpayers in same class). In short, there is no 
compelling reason why the doctrine of res judicata should be applied in 
situations covered by the rule.
    The commenters' assertion that the rule circumvents the ACA's 2005 
bar date is also without foundation. The rule applies only to 
survivors' claims filed after January 1, 2005 and pending on or after 
the ACA's enactment date. It is thus fully consistent with the ACA's 
plain language, which makes automatic entitlement applicable to all 
qualifying survivors' claims, both original and subsequent. It states, 
without qualification, that the amendments to the BLBA ``apply with 
respect to claims filed . . . after January 1, 2005, that are pending 
on or after [March 23, 2010].'' Public Law 111-148, Sec.  1556(c) 
(2010) (emphasis added). This provision makes no distinction between 
miners' and survivors' claims, or between original and subsequent 
claims. Rather, as the Fourth Circuit has held, ``the plain language of 
[Section 1556(c)] requires that amended Sec.  932(l) apply to all 
claims [that satisfy Section 1556's time limitations].'' Stacy, 671 
F.3d at 388 (emphasis in original). See also Groves, 705 F.3d at 555-
56. Thus, ``the statutory text supports [the] position that amended 
Section 932(l) applies to all

[[Page 59111]]

claims that comply with Section 1556(c)'s time limitations, including 
subsequent claims.'' Richards, 721 F.3d at 314. Accord Eckman, ------ 
F.3d at ------, 2013 WL 4017160, *5 (Section 1556(c)'s plain language 
``encompasses'' subsequent survivor claims).
    Along the same lines, one commenter points to Senator Byrd's post-
enactment statement that the ACA amendments will apply to ``all claims 
that will be filed henceforth, including many claims filed by miners 
whose prior claims were denied, or by widows who never filed for 
benefits following the death of a husband'' as evidence that amended 
Section 422(l) is not intended to apply to subsequent claims filed by 
survivors. See 156 Cong. Rec. S2083 (daily ed. March 25, 2010). The 
commenter has misinterpreted the passage. Even if considered persuasive 
authority, see Starks, 719 F.3d at 1283 n.9 (stating that Senator 
Byrd's post-enactment statement is not ``legitimate legislative 
history''), the Senator's statement is clearly intended simply to 
provide illustrative examples of groups who could potentially benefit 
from the ACA. See Richards, 721 F.3d at 316 (Senator Byrd's 
``description of the scope of the statute as `including' certain types 
of claims connotes that his selected examples were intended to be 
illustrative of the amendment's reach, not exhaustive.''). Senator Byrd 
was not limiting the universe of claims affected by the ACA only to 
miners' subsequent claims or survivors' first filings. Indeed, such a 
reading would lead to an absurd result since it would exclude miners 
who are first-time filers from accessing the revived 15-year 
presumption provided under Section 1556(a). Eckman, ------ F.3d at ----
--, 2013 WL 4017160, *4 (concluding that Senator Byrd's list is not 
necessarily ``exhaustive'' and pointing out that the list ``does not 
include the largest class of potential claims: Original claims filed by 
miners, either pending or filed henceforth.'').
    One comment argues that the application of Section 1556 to 
survivors' subsequent claims likely violates the constitutional 
separation-of-powers principle, at least where the survivor's prior 
claim was finally decided by a United States Court of Appeals. The 
commenter relies on Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 
(1995) in support. Striking down a Security and Exchange Act statutory 
amendment that allowed plaintiffs to reinstate certain suits that had 
already been finally dismissed as time-barred, Plaut held that Article 
III of the Constitution established a ``judicial department,'' with 
``the power, not merely to rule on cases, but to decide them, subject 
to review only by superior courts . . .--with an understanding . . . 
that a `judgment conclusively resolves the case' because `[the 
judiciary] render[s] dispositive judgments.' '' 514 U.S. at 218-19 
(quoting Easterbrook, Presidential Review, 40 Case W. Res. L. Rev. 905, 
926 (1990)).
    Plaut and the separation-of-powers principle have no relevance with 
respect to ACA Section 1556 and proposed Sec.  725.309. Unlike the 
statute at issue in Plaut, Section 1556 and the rule implementing it do 
not require the reopening of final judicial decisions. Rather, Section 
1556 changed the underlying substantive law, thereby creating a new 
cause of action that applies only to claims pending on or after its 
enactment date (March 23, 2010). See, e.g., In re Swanson, 540 F.3d 
1368, 1378-79 (Fed. Cir. 2008) (rejecting separation-of-powers 
challenge to reexamination of patent previously upheld by court, as two 
examinations were ``differing proceedings with different evidentiary 
standards''). Far from allowing a legislative veto of a prior judicial 
determination, Section 1556 and the proposed rule give ``full credit'' 
to prior claim denial. Buck Creek Coal Co. v. Sexton, 706 F.3d 756, 
759-60 (6th Cir. 2013) (quoting U.S. Steel Mining Co., LLC, v. 
Director, OWCP, 386 F.3d 977, 990 (11th Cir. 2004)). The rules 
governing the date from which benefits are payable--including those 
payable on subsequent survivor claims--evidence this principle because 
no benefits are payable ``for any period prior to the date upon which 
the order denying the prior claim became final.'' 20 CFR 725.309(d)(5) 
(2012).
    (c) No other comments on this section were received and the 
Department has promulgated the rule as proposed.

IV. Information Collection Requirements (Subject to the Paperwork 
Reduction Act) Imposed Under the Proposed Rule

    This rulemaking imposes no new collections of information.

V. Executive Orders 12866 and 13563 (Regulatory Planning and Review)

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
It also instructs agencies to review ``rules that may be outmoded, 
ineffective, insufficient, or excessively burdensome, and to modify, 
streamline, expand, or repeal them.'' In accordance with this Executive 
Order, the Department has proposed certain changes to these rules not 
otherwise required to implement the ACA's statutory amendments.
    These final rules are consistent with the statutory mandate, 
reflecting the policy choices made by Congress in adopting the ACA 
amendments. Those choices reflect Congress' rational decision ``to 
spread the costs of the employees' disabilities to those who have 
profited from the fruits of their labor--the operators and the coal 
consumers.'' Stacy, 671 F.3d at 383 (quoting Usery, 428 U.S. at 18)). 
In restoring Section 411(c)(4), ``Congress decided to ease the path to 
recovery for claimants who could prove at least 15 years of coal mine 
employment and a totally disabling pulmonary impairment,'' thus giving 
miners and their survivors ``a better shot at obtaining benefits.'' 
Keene v. Consolidation Coal Co., 645 F.3d 844, 849 (7th Cir. 2011). And 
in restoring Section 422(l), Congress made ``a legislative choice to 
compensate a miner's dependents for the suffering they endured due to 
the miner's pneumoconiosis or as a means to provide a miner with peace 
of mind that his dependents will continue to receive benefits after his 
death.'' Campbell, 662 F.3d at 258. The rules faithfully implement 
these Congressional directives.
    Although additional expenditures associated with these rules 
primarily flow from the statutory amendments themselves rather than the 
rules, the Department has evaluated the financial impact of the 
amendments' application on coal mine operators, and in particular those 
classified as small businesses, as set forth in the NPRM. See 77 FR at 
19470-74. Coal mine operators' outlays for the workers' compensation 
insurance necessary to secure the payment of any benefits resulting 
from the amendments will likely increase, at least in the short run. 
Self-insured operators may also be required to pay out more in 
compensation to entitled miners and survivors.
    These operator expenditures are transfer payments as defined by OMB 
Circular A-4 (i.e., payments from one group to another that do not 
affect the total resources available to society). To

[[Page 59112]]

estimate additional workers' compensation insurance premiums that may 
result from the ACA amendments, the Department projected new claim 
filings, award rates and associated insurance premiums both with and 
without the amendments for the ten-year period 2010 through 2019. Based 
on the projected differences, the Department estimates that annualized 
industry insurance premiums will increase $35 million over this ten-
year period as a result of the ACA amendments. This figure likely 
overstates the premium increase because it is based on two important 
assumptions designed to consider a maximum-impact scenario: The 
estimates assume that all coal mine operators purchase commercial 
workers' compensation insurance rather than self-insuring, and the 
insurance rates used are based on the higher rates charged by assigned-
risk plans rather than the lower rates generally available in the 
voluntary market. The Department's estimate is explained more fully in 
the Regulatory Flexibility Act discussion below.
    Transfers also occur between insurance carriers or self-insured 
coal mine operators and benefit recipients. These transfers take the 
form of benefit payments. The amount of benefits payable on any given 
award depends upon a variety of factors, including the benefit 
recipient's identity, the length of the recipient's life, and whether 
the recipient has any eligible dependents for whom the basic benefit 
amount may be augmented. See generally 20 CFR 725.202-725.228; 725.520 
(2012).
    For example, in FY 2010, the Department oversaw 28,671 active Part 
C BLBA claims with income and medical benefit disbursements of 
approximately $238 million. This translates into an annual benefit rate 
of $8,316 per claim, or an average monthly benefit of $693. Of the 
total active claims in 2010 payable by coal mine operators and their 
insurance carriers, an estimated 156 were new awards resulting from the 
ACA amendments, translating into approximately $1.3 million in 
additional income and medical benefit disbursements in the first year. 
Accordingly, the Department's predicted 425 new awards in responsible 
operator claims for 2011 equates to an estimated $3.5 million increase 
in benefit disbursements for the first year.
    Payments from the Black Lung Disability Trust Fund will also 
increase due to a small number of claims awarded under the ACA 
amendments and for which no coal mine operator may be held liable. The 
Department estimates that Trust Fund benefit payments will increase a 
total of approximately $48.3 million over the 10-year period from 2010-
2019. Despite this amendment-related increase, Trust Fund benefit 
payments as a whole are decreasing annually. The majority of the Trust 
Fund's liabilities stem from earlier days of the black lung program, 
when the Trust Fund bore liability for a much higher percentage of 
awarded claims. Trust Fund payments cease when these benefit recipients 
pass away. As a result, the Trust Fund's expenditures continue to 
decrease each year.
    Claimants who obtain benefits under the ACA amendments will gain a 
variety of advantages that are difficult to quantify in monetary terms. 
A disabled miner ``has suffered in at least two ways: His health is 
impaired, and he has been rendered unable to perform the kind of work 
to which he has adapted himself.'' Usery, 428 U.S. at 21. Income 
disbursements give these miners some financial relief and provide a 
modicum of compensation for the health impairment the miners suffered 
in working to meet the Nation's energy needs. Medical treatment 
benefits provide health care to miners for the injury caused by their 
occupationally acquired pulmonary diseases and disabilities so as to 
maximize both their longevity and quality of life. Both income and 
medical benefits alleviate drains on public assistance resources. And 
miners awarded benefits under the ACA amendments may also rest assured 
that their dependent survivors will not be left wholly without 
financial support.
    In exchange, coal mine operators continue to be protected from 
common law tort actions that could otherwise be brought by these miners 
or their survivors for pneumoconiosis arising from the miner's 
employment and related disabilities or death. See 33 U.S.C. 905(a), 
incorporated by 30 U.S.C. 932(a). And because the monthly benefit 
amounts payable are fixed by statute, compensation costs are 
predictable and feasible for insurers to cover at an affordable rate. 
This predictability also allows coal mine operators to pass their costs 
for insurance (or benefits if self-insured) on to consumers.
    From a program-administration viewpoint, the Department will 
realize some cost savings from the ACA amendment restoring Section 
422(l)'s automatic entitlement for survivors. Before the amendment, the 
Department had to develop each survivor's claim, including obtaining 
relevant medical evidence, evaluating that evidence, and issuing a 
detailed decision adjudicating whether the miner's death was due to 
pneumoconiosis. That administrative work, and the costs associated with 
it, is no longer necessary where the survivor is entitled under Section 
422(l). Instead, the regulations adopt a streamlined process for those 
cases that eliminates most evidentiary development and evaluation. This 
process has the dual benefit of delivering compensation to entitled 
survivors more quickly and reducing the costs associated with that 
delivery.
    The Department received only two comments on its economic analysis 
of the impact of the ACA amendments and the proposed rules. The 
Department's response to those two comments is included in the 
Regulatory Flexibility Act section below.
    The Office of Information and Regulatory Affairs of the Office of 
Management and Budget has determined that the Department's rule 
represents a ``significant regulatory action'' under Section 3(f)(4) of 
Executive Order 12866 and has reviewed the rule.

VI. Small Business Regulatory Enforcement Fairness Act of 1996

    As required by Congress under the Small Business Regulatory 
Enforcement Fairness Act of 1996, enacted as Title II of Public Law 
104-121, 201-253, 110 Stat. 847, 857 (1996), the Department will report 
promulgation of this rule to both Houses of the Congress and to the 
Comptroller General prior to its effective date. The report will state 
that the rule is not a ``major rule'' as defined under 5 U.S.C. 804(2).

VII. Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531 
et seq., directs agencies to assess the effects of Federal Regulatory 
Actions on State, local, and tribal governments, and the private 
sector, ``other than to the extent that such regulations incorporate 
requirements specifically set forth in law.'' 2 U.S.C. 1531. For 
purposes of the Unfunded Mandates Reform Act, this rule does not 
include any Federal mandate that may result in increased expenditures 
by State, local, tribal governments, or increased expenditures by the 
private sector of more than $100,000,000.

VIII. Regulatory Flexibility Act and Executive Order 13272 (Proper 
Consideration of Small Entities in Agency Rulemaking)

    The Regulatory Flexibility Act of 1980, as amended, 5 U.S.C. 601 et 
seq., (RFA), requires an agency to prepare an initial regulatory 
flexibility analysis describing the proposed rule's impact

[[Page 59113]]

on small entities. 5 U.S.C. 603. The RFA also requires agencies to 
prepare a final regulatory flexibility analysis when promulgating the 
final rule. 5 U.S.C. 604. In either instance, the RFA does not require 
a regulatory flexibility analysis if the agency certifies that the 
proposed or final rule will not have ``a significant economic impact on 
a substantial number of small entities'' and provides the factual basis 
for the certification. 5 U.S.C. 605. The Department has determined that 
a final regulatory flexibility analysis is not required for this 
rulemaking.
    The Department conducted an initial regulatory flexibility analysis 
(IRFA) prior to publishing the proposed rule, informed the public how 
to obtain a copy of the complete analysis, summarized the analysis in 
the preamble to the proposed rule, and asked for public comment on all 
aspects of the costs and benefits of the proposed rule, particularly 
with respect to impacts on small businesses. 77 FR at 19471-74. The 
Department surveyed the industry and determined that virtually all coal 
mine operators in the United States fall within the Small Business 
Administration's definition of a small business. 77 FR at 19471-72. 
Even though the statutory amendments themselves, rather than the rules 
implementing them, account for most, if not all, of the additional 
costs imposed on the coal mining industry, the Department estimated the 
maximum financial impact that might result from the amendments and 
rules by evaluating potential increased costs to purchase workers' 
compensation insurance. See 30 U.S.C. 933 (requiring all coal mine 
operators to either purchase commercial workers' compensation insurance 
or qualify as a self-insurer to insure covered workers). The Department 
determined that the ACA amendments and the implementing rules would 
impose an annualized cost on the industry of $35 million--or only one-
tenth of one percent of average annual industry revenues--over the ten 
years from 2010 to 2019, with decreasing costs thereafter. 77 FR at 
19473. The Department noted that these estimates likely overstated the 
actual cost impact and were transitory in nature. 77 FR at 19471-73.
    One comment generally states that the Department's economic 
analysis is opaque, unsupported by data or analysis, and lacks source 
citations for such data and analysis necessary to allow it to 
adequately review the Department's conclusions. The comment also 
believes the Department's analysis was overly dismissive given the 
prospect of reopening thousands of previously denied survivors' claims 
and allowing re-filing of an unknown number of denied miners' claims. 
Another comment questions how the Department calculated the number of 
survivors (and the resulting benefits payable) who would be 
automatically entitled to benefits under amended Section 422(l). This 
comment was made in the context of the Department's construction of 
subsequent survivor claims.
    The Department believes its economic analysis was complete. The 
Department prepared a fully documented and explained IRFA that cited 
both internal and external data sources, and made the IRFA available to 
the public through the internet and by individual request. 77 FR at 
19471. One comment grossly overstates the potential impact of 
subsequent survivors' claims liability on the costs associated with the 
amendments and the rule. In the NPRM, the Department estimated that out 
of a pool of 445 potential survivors in this category, only 317 might 
file subsequent claims to assert entitlement under amended Section 
422(l). 77 FR at 19473-74. Actual experience has shown that number to 
be far lower. To date, only 143 survivors have filed subsequent claims 
seeking benefits under amended Section 422(l).
    Moreover, as the Department noted in the NPRM, the financial impact 
of revised Sec.  725.309 on coal mine operators is mitigated in two 
ways. 77 at FR 19474. First, the survivors in question would not be 
entitled to benefits for the period prior to the day on which the prior 
denial became final. Second, an operator who ensures its BLBA 
liabilities with commercial insurance will not incur any additional 
costs because it has already purchased the insurance necessary to cover 
the survivor's claim. For these reasons, the Department does not 
believe that allowing re-filing survivors to receive benefits under 
amended Section 422(l) imposes significant hardships on small coal mine 
businesses.
    Significantly, no commenter or interested small business brought 
forth any information that contradicts the Department's conclusions in 
the IRFA, despite the Department's specific request for comments about 
adverse effects on small businesses. For instance, no one submitted 
documentation detailing actual experience with either increased 
workers' compensation insurance premium rates or self-insurance 
expenses since enactment of the ACA amendments in 2010. Nor did any 
comment allege that such increases have occurred. The Department 
therefore has no reason to conclude that its cost estimates set forth 
in the IRFA are understated or that these businesses will incur 
significant adverse financial impacts.
    Thus, although most coal mine operators are small businesses, the 
Department does not believe that an estimated annualized cost imposed 
for complying with the ACA amendments, as implemented by these 
regulations, amounting to at most one-tenth of one percent of industry 
revenues is a significant economic impact. The Department therefore 
certifies that this final rule will not have significant economic 
impact on a substantial number of small entities. Accordingly, it has 
not prepared a final regulatory impact analysis. The Department has 
provided the Chief Counsel for Advocacy of the Small Business 
Administration with a copy of this certification. See 5 U.S.C. 605.

IX. Executive Order 13132 (Federalism)

    The Department has reviewed this final rule in accordance with 
Executive Order 13132 regarding federalism, and has determined that it 
does not have ``federalism implications.'' E.O. 13132, 64 FR 43255 
(Aug. 4, 1999). The final rule will not ``have substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.'' Id.

X. Executive Order 12988 (Civil Justice Reform)

    The final rule meets the applicable standards in Sections 3(a) and 
3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize 
litigation, eliminate ambiguity, and reduce burden.

XI. Congressional Review Act

    The final rule is not a ``major rule'' as defined in the 
Congressional Review Act, 5 U.S.C. 801 et seq. This rule will not 
result in an annual effect on the economy of $100,000,000 or more; a 
major increase in costs or prices for consumers, individual industries, 
Federal, State or local government agencies, or geographic regions; or 
significant adverse effects on competition, employment, investment, 
productivity, innovation, or on the ability of United States-based 
enterprises to compete with foreign-based enterprises in domestic and 
export markets.

[[Page 59114]]

List of Subjects in 20 CFR Parts 718 and 725

    Total Disability due to pneumoconiosis; coal miners' entitlement to 
benefits; survivors' entitlement to benefits.

    For the reasons set forth in the preamble, the Department of Labor 
amends 20 CFR parts 718 and 725 as follows:

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

0
1. The authority citation for part 718 is revised 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; 33 U.S.C. 901 et 
seq.; 42 U.S.C. 405; Secretary's Order 10-2009, 74 FR 58834.


0
2. Revise Sec.  718.1 to read as follows:


Sec.  718.1  Statutory provisions.

    Section 402(f) of the Act authorizes the Secretary of Labor to 
establish criteria for determining total disability or death due to 
pneumoconiosis to be applied in the processing and adjudication of 
claims filed under Part C of the Act. Section 402(f) 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 used to take chest 
roentgenograms (x-rays) in connection with a claim for benefits under 
the Act.

0
3. Revise Sec.  718.2 to read as follows:


Sec.  718.2  Applicability of this part.

    (a) With the exception of the second sentence of Sec.  718.204(a), 
this part is applicable to the adjudication of all claims filed on or 
after June 30, 1982 under Part C of the Act. It provides standards for 
establishing entitlement to benefits under the Act and describes the 
criteria for the development of medical evidence used in establishing 
such entitlement. The second sentence of Sec.  718.204(a) is applicable 
to the adjudication of all claims filed after January 19, 2001.
    (b) Publication of certain provisions or parts of certain 
provisions that apply only to claims filed prior to June 30, 1982, or 
to claims subject to Section 435 of the Act, has been discontinued 
because those provisions affect an increasingly smaller number of 
claims. The version of Part 718 set forth in 20 CFR, parts 500 to end, 
edition revised as of April 1, 2010, applies to the adjudication of all 
claims filed prior to June 30, 1982, as appropriate.
    (c) The provisions of this part must, to the extent appropriate, be 
construed together in the adjudication of claims.

0
4. In Sec.  718.3, revise paragraph (a) to read as follows:


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 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.
* * * * *

0
5. In Sec.  718.202, revise paragraph (a)(3) to read as follows:


Sec.  718.202  Determining the existence of pneumoconiosis.

    (a) * * *
    (3) If the presumptions described in Sec.  718.304 or Sec.  718.305 
are applicable, it must be presumed that the miner is or was suffering 
from pneumoconiosis.
* * * * *

0
6. Revise Sec.  718.205 to read as follows:


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 based on 
a showing of death due to pneumoconiosis, a 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) 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, 
or
    (4) For survivors' claims filed after January 1, 2005, and pending 
on or after March 23, 2010, where the presumption at Sec.  718.305 is 
invoked and not rebutted.
    (5) However, except where the Sec.  718.304 presumption is invoked, 
survivors are not eligible for benefits where the miner's death was 
caused by a traumatic injury (including suicide) or the principal cause 
of death was a medical condition not related to pneumoconiosis, unless 
the claimant establishes (by proof or presumption) that pneumoconiosis 
was a substantially contributing cause of death.
    (6) Pneumoconiosis is a ``substantially contributing cause'' of a 
miner's death if it hastens the miner's death.

0
7. Revise Sec.  718.301 to read as follows:


Sec.  718.301  Establishing length of employment as a miner.

    The presumptions set forth in Sec. Sec.  718.302 and 718.305 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.  718.303  [Removed and Reserved]

0
8. Remove and reserve Sec.  718.303.
0
9. Revise Sec.  718.305 to read as follows:


Sec.  718.305  Presumption of pneumoconiosis.

    (a) Applicability. This section applies to all claims filed after 
January 1, 2005, and pending on or after March 23, 2010.
    (b) Invocation. (1) The claimant may invoke the presumption by 
establishing that--
    (i) The miner engaged in coal-mine employment for fifteen years, 
either in one or more underground coal mines, or in coal mines other 
than underground mines in conditions substantially similar to those in 
underground mines, or in any combination thereof; and
    (ii) The miner or survivor cannot establish entitlement under Sec.  
718.304 by means of chest x-ray evidence; and
    (iii) The miner has, or had at the time of his death, a totally 
disabling respiratory or pulmonary impairment established pursuant to 
Sec.  718.204, except that Sec.  718.204(d) does not apply.
    (2) The conditions in a mine other than an underground mine will be 
considered ``substantially similar'' to those in an underground mine if 
the claimant demonstrates that the miner was regularly exposed to coal-
mine dust while working there.
    (3) In a claim involving a living miner, a miner's affidavit or 
testimony, or a spouse's affidavit or testimony, may not be used by 
itself to establish the existence of a totally disabling respiratory or 
pulmonary impairment.
    (4) In the case of a deceased miner, affidavits (or equivalent 
sworn

[[Page 59115]]

testimony) from persons knowledgeable of the miner's physical condition 
must be considered sufficient to establish total disability due to a 
respiratory or pulmonary impairment if no medical or other relevant 
evidence exists which addresses the miner's pulmonary or respiratory 
condition; however, such a determination must 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.
    (c) Facts presumed. Once invoked, there will be rebuttable 
presumption--
    (1) In a miner's claim, that the miner is totally disabled due to 
pneumoconiosis, or was totally disabled due to pneumoconiosis at the 
time of death; or
    (2) In a survivor's claim, that the miner's death was due to 
pneumoconiosis.
    (d) Rebuttal--(1) Miner's claim. In a claim filed by a miner, the 
party opposing entitlement may rebut the presumption by--
    (i) Establishing both that the miner does not, or did not, have:
    (A) Legal pneumoconiosis as defined in Sec.  718.201(a)(2); and
    (B) Clinical pneumoconiosis as defined in Sec.  718.201(a)(1), 
arising out of coal mine employment (see Sec.  718.203); or
    (ii) Establishing that no part of the miner's respiratory or 
pulmonary total disability was caused by pneumoconiosis as defined in 
Sec.  718.201.
    (2) Survivor's claim. In a claim filed by a survivor, the party 
opposing entitlement may rebut the presumption by--
    (i) Establishing both that the miner did not have:
    (A) Legal pneumoconiosis as defined in Sec.  718.201(a)(2); and
    (B) Clinical pneumoconiosis as defined in Sec.  718.201(a)(1), 
arising out of coal mine employment (see Sec.  718.203); or
    (ii) Establishing that no part of the miner's death was caused by 
pneumoconiosis as defined in Sec.  718.201.
    (3) The presumption must not be considered rebutted on the basis of 
evidence demonstrating the existence of a totally disabling obstructive 
respiratory or pulmonary disease of unknown origin.


Sec.  718.306  [Removed and Reserved]

0
10. Remove and reserve Sec.  718.306.
0
11. Revise the introductory text of Appendix C to Part 718 to read as 
follows:

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 Sec.  718.204(b)(2)(ii). The values contained in the 
tables are indicative of impairment only. They do not establish a 
degree of disability except as provided in Sec.  718.204(b)(2)(ii) 
of this subchapter, nor do they establish standards for determining 
normal alveolar gas exchange values for any particular individual. 
Tests must not be performed during or soon after an acute 
respiratory or cardiac illness. A miner who meets the following 
medical specifications must be found to be totally disabled, in the 
absence of rebutting evidence, if the values specified in one of the 
following tables are met:
* * * * *

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

0
12. 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., 902(f), 921, 932, 936; 33 U.S.C. 901 
et seq.; 42 U.S.C. 405; Secretary's Order 10-2009, 74 FR 58834.


0
13. Revise Sec.  725.1 to read as follows:


Sec.  725.1  Statutory provisions.

    (a) General. Subchapter 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, the Black Lung 
Benefits Revenue Act of 1981, the Black Lung Consolidation of 
Responsibility Act of 2002, and the Patient Protection and Affordable 
Care Act of 2010 (together comprising the Black Lung Benefits Act (see 
Sec.  725.101(a)(1)) provides for the payment of benefits to certain 
disabled coal miners and their survivors. See Sec.  725.201.
    (b) Part B. Part B of subchapter IV of the Act provided that claims 
filed before July 1, 1973 were to be filed with, and adjudicated and 
administered by, the Social Security Administration (SSA). If awarded, 
these claims were paid by SSA out of appropriated funds. The Black Lung 
Consolidation of Administrative Responsibility Act (see paragraph (h) 
of this section) transferred all responsibility for continued 
administration of these claims to the Department of Labor.
    (c) 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 subchapter IV of the Act. Part C requires that a claim filed on or 
after January 1, 1974, shall be filed under an applicable approved 
State workers' compensation law, or if no such law has been approved by 
the Secretary of Labor, the claim may be filed with the Secretary of 
Labor under Section 422 of the Act. Claims filed with the Secretary of 
Labor under part C are processed and adjudicated by the Secretary. 
Individual coal mine operators are primarily liable for benefits; 
however, 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 Longshore and Harbor Workers' Compensation Act.
    (d) Changes made by the Black Lung Benefits Reform Act of 1977. 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 that continued employment in a coal mine is not 
conclusive proof that a miner is not or was not totally disabled;
    (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) 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
    (6) Other clarifying, procedural, and technical amendments.
    (e) 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

[[Page 59116]]

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 part C 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.
    (f) Changes made by the Black Lung Benefits Amendments of 1981. 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, and applied the changes to 
claims filed on or after January 1, 1982. Among these are:
    (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 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 (but the presumption 
was reinstated for claims filed after January 1, 2005, and pending on 
or after March 23, 2010, by the Patient Protection and Affordable Care 
Act of 2010 (see paragraph (i) of this section));
    (3) 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;
    (4) 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 (but for survivors' claims 
filed after January 1, 2005, and pending on or after March 23, 2010, an 
award of a miner's claim may form the basis for a survivor's 
entitlement under the Patient Protection and Affordable Care Act of 
2010 (see paragraph (i) of this section));
    (5) Benefits payable under this part are subject to an offset on 
account of excess earnings by the miner; and
    (6) Other technical amendments.
    (g) 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 has repaid all advances 
received from the United States Treasury and the interest on all such 
advances. 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.
    (h) Changes made by the Black Lung Consolidation of Administrative 
Responsibility Act. The Black Lung Consolidation of Administrative 
Responsibility Act of 2002 transferred administrative responsibility 
for all claims previously filed with or administered by the Social 
Security Administration to the Department of Labor, effective January 
31, 2003. As a result, certain obsolete provisions in the BLBA (30 
U.S.C. 904, 924a, and 945) were repealed. Various technical changes 
were made to other statutory provisions.
    (i) Changes made by the Patient Protection and Affordable Care Act 
of 2010. The Patient Protection and Affordable Care Act of 2010 (the 
ACA) changed the entitlement criteria for miners' and survivors' claims 
filed after January 1, 2005, and pending on or after March 23, 2010, by 
reinstating two provisions made inapplicable by the Black Lung Benefits 
Amendments of 1981.
    (1) For miners' claims meeting these date requirements, the ACA 
reinstated the rebuttable presumption that the miner is (or was) 
totally disabled due to pneumoconiosis if the miner has (or had) 15 or 
more years of qualifying coal mine employment and a totally disabling 
respiratory or pulmonary impairment.
    (2) For survivors' claims meeting these date requirements, the ACA 
made two changes. First, it reinstated the rebuttable presumption that 
the miner's death was due to pneumoconiosis if the miner had 15 years 
or more of qualifying coal mine employment and was totally disabled by 
a respiratory or pulmonary impairment at the time of death. Second, it 
reinstituted derivative survivors' entitlement. As a result, an 
eligible survivor will be entitled to benefits if the miner is or was 
found entitled to benefits on his or her lifetime claim based on total 
disability due to pneumoconiosis arising out of coal-mine employment.
    (j) Longshore Act provisions. The adjudication of claims filed 
under part C of the Act (i.e., claims filed on or after January 1, 
1974) is governed by various procedural and other provisions contained 
in the Longshore and Harbor Workers' Compensation Act (LHWCA), as 
amended from time to time, which are incorporated within the Act by 
section 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-traumatic injury or 
death. Because of this and other significant differences between a 
black lung and longshore claim, it is determined, in accordance with 
the authority set forth in Section 422 of the Act, that certain of the 
incorporated procedures prescribed by the LHWCA must be altered to fit 
the circumstances ordinarily confronted in the adjudication of a black 
lung claim. The changes made are based upon the Department's experience 
in processing black lung claims since July 1, 1973, and all such 
changes are specified in this part. No other departure from the 
incorporated provisions of the LHWCA is intended.
    (k) Social Security Act provisions. Section 402 of Part A of the 
Act incorporates certain definitional provisions from the Social 
Security Act, 42 U.S.C. 301 et seq. Section 430 provides that the 1972, 
1977 and 1981 amendments to part B of the Act shall also apply to part 
C ``to the extent appropriate.'' Sections 412 and 413 incorporate 
various provisions of the Social Security Act into part B of the Act. 
To the extent appropriate, therefore, these provisions also apply to 
part C. In certain cases, the Department has varied the terms of the 
Social Security Act provisions to accommodate the unique needs of the 
black lung

[[Page 59117]]

benefits program. Parts of the Longshore and Harbor Workers' 
Compensation Act are also incorporated into part C. Where the 
incorporated provisions of the two acts are inconsistent, the 
Department has exercised its broad regulatory powers to choose the 
extent to which each incorporation is appropriate. Finally, Section 
422(g), contained in part C of the Act, incorporates 42 U.S.C. 403(b)-
(l).

0
14. Revise Sec.  725.2 to read as follows:


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 subchapter IV of the Act.
    (b) This part applies to all claims filed under part C of 
subchapter IV of the Act on or after June 30, 1982. Publication of 
certain provisions or parts of certain provisions that apply only to 
claims filed prior to June 30, 1982, or to claims subject to Section 
435 of the Act, has been discontinued because those provisions affect 
an increasingly smaller number of claims. The version of Part 725 set 
forth in 20 CFR, parts 500 to end, edition revised as of April 1, 2010, 
applies to the adjudication of all claims filed prior to June 30, 1982, 
as appropriate.
    (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 also applies 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 will be 
considered pending on January 19, 2001 if it was not finally denied 
more than one year prior to that date.

0
15. In Sec.  725.101, revise paragraphs (a)(1), (a)(2), (a)(4), 
(a)(32)(i) through (iv), and (b) to read as follows:


Sec.  725.101  Definition and use of terms.

    (a) * * *
    (1) The Act means the Black Lung Benefits Act, 30 U.S.C. 901-44, as 
amended.
    (2) The Longshore Act or LHWCA means the Longshore and Harbor 
Workers' Compensation Act, 33 U.S.C. 901-950, 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 also means an individual appointed to conduct such hearings 
and adjudicate such claims under Public Law 94-504.
* * * * *
    (32) * * *
    (i) If the evidence establishes that the miner worked in or around 
coal mines at least 125 working days during a calendar year or partial 
periods totaling one year, then the miner has worked one year in coal 
mine employment for all purposes under the Act. If a miner worked fewer 
than 125 working days in a year, he or she has worked a fractional year 
based on the ratio of the actual number of days worked to 125. Proof 
that the miner worked more than 125 working days in a calendar year or 
partial periods totaling a year, does 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 must be ascertained. The 
dates and length of employment may be established by any credible 
evidence including (but not limited to) company records, pension 
records, earnings statements, coworker affidavits, and sworn testimony. 
If the evidence establishes that the miner's employment lasted for a 
calendar year or partial periods totaling a 365-day period amounting to 
one year, it must 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 must 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) Periods of coal mine employment occurring outside the United 
States must not be considered in computing the miner's work history.
    (b) Statutory terms. The definitions contained in this section must 
not be construed in derogation of terms of the Act.
* * * * *

0
16. In Sec.  725.201:
0
a. Revise paragraph (a);
0
b. Remove paragraph (b); and
0
c. Redesignate paragraphs (c) and (d) as paragraphs (b) and (c).
    The revision reads as follows:


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

    (a) Part C of the Act provides for the payment of periodic benefits 
in accordance with this part to:
    (1) A miner who meets the conditions of entitlement set forth in 
Sec.  725.202(d); or
    (2) The surviving spouse or surviving divorced spouse of a deceased 
miner who meets the conditions of entitlement set forth in Sec.  
725.212; or,
    (3) Where neither exists, the child of a deceased miner who meets 
the conditions of entitlement set forth in Sec.  725.218; 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, who meet 
the conditions of entitlement set forth in Sec.  725.222; or
    (5) The child of a miner's surviving spouse who was receiving 
benefits under Part C of the Act at the time of such spouse's death.
* * * * *

0
17. In Sec.  725.212, republish paragraph (a)(3) introductory text and 
revise paragraphs (a)(3)(i) and (ii) to read as follows:


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

    (a) * * *
    (3) The deceased miner either:
    (i) Is determined to have died due to pneumoconiosis; or
    (ii) Filed a claim for benefits on or after January 1, 1982, which 
results or resulted in a final award of benefits, and the surviving 
spouse or surviving divorced spouse filed a claim for benefits after 
January 1, 2005 which was pending on or after March 23, 2010.
* * * * *

0
18. In Sec.  725.218, republish paragraph (a) introductory text and 
revise

[[Page 59118]]

paragraphs (a)(1) and (2) to read as follows:


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) Is determined to have died due to pneumoconiosis; or
    (2) Filed a claim for benefits on or after January 1, 1982, which 
results or resulted in a final award of benefits, and the surviving 
child filed a claim for benefits after January 1, 2005 which was 
pending on or after March 23, 2010.
* * * * *

0
19. In Sec.  725.222, republish paragraph (a)(5) introductory text and 
revise paragraphs (a)(5)(i) and (ii) to read as follows:


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

    (a) * * *
    (5) The deceased miner:
    (i) Is determined to have died due to pneumoconiosis; or
    (ii) Filed a claim for benefits on or after January 1, 1982, which 
results or resulted in a final award of benefits, and the surviving 
parent, brother or sister filed a claim for benefits after January 1, 
2005 which was pending on or after March 23, 2010.
* * * * *

0
20. Revise Sec.  725.309 to read as follows:


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

    (a) 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 
must be merged with the earlier claim for all purposes. For purposes of 
this section, a claim must be considered pending if it has not yet been 
finally denied.
    (b) 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 must be considered a request for modification of the prior 
denial and will be processed and adjudicated under Sec.  725.310.
    (c) 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 must be considered a subsequent claim for benefits. A 
subsequent claim will be processed and adjudicated in accordance with 
the provisions of subparts E and F of this part. Except as provided in 
paragraph (1) below, a subsequent claim must be denied unless the 
claimant demonstrates that one of the applicable conditions of 
entitlement (see Sec. Sec.  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 apply 
to the adjudication of a subsequent claim:
    (1) The requirement to establish a change in an applicable 
condition of entitlement does not apply to a survivor's claim if the 
requirements of Sec. Sec.  725.212(a)(3)(ii), 725.218(a)(2), or 
725.222(a)(5)(ii) are met, and the survivor's prior claim was filed--
    (i) On or before January 1, 2005, or
    (ii) After January 1, 2005 and was finally denied prior to March 
23, 2010.
    (2) Any evidence submitted in connection with any prior claim must 
be made a part of the record in the subsequent claim, provided that it 
was not excluded in the adjudication of the prior claim.
    (3) For purposes of this section, the applicable conditions of 
entitlement are 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.
    (4) 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 must 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.
    (5) 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), will 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 will be binding on that 
party in the adjudication of the subsequent claim.
    (6) 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.
    (d) 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 will be 
subject to collection or offset under subpart H of this part.

0
21. Revise Sec.  725.418 to read as follows:


Sec.  725.418  Proposed decision and order.

    (a) Within 20 days after the termination of all informal conference 
proceedings, or, if no informal conference is held, at the conclusion 
of the period permitted by Sec.  725.410(b) for the submission of 
evidence, the district director will 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 will 
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 at any time during the adjudication of any claim if:
    (1) Issuance is authorized or required by this part;
    (2) The district director determines that its issuance will 
expedite the adjudication of the claim; or
    (3) The district director determines that the claimant is a 
survivor who is entitled to benefits under 30 U.S.C. 932(l). In such 
cases, the district director may designate the responsible operator in 
the proposed decision and order regardless of whether the requirements 
of paragraph (d) of this section have been met. Any operator identified 
as liable for benefits under this paragraph may challenge the finding 
of liability by timely requesting revision of the proposed decision and 
order and specifically indicating disagreement with that finding. See 
20 CFR 725.419(a) and (b). In such cases, the district director must 
allow all parties 30 days within which to submit liability evidence. At 
the end of this

[[Page 59119]]

period, the district director must issue a new proposed decision and 
order.
    (b) A proposed decision and order must contain findings of fact and 
conclusions of law. It must be served on all parties to the claim by 
certified mail.
    (c) The proposed decision and order must contain a notice of the 
right of any interested party to request a formal hearing before the 
Office of Administrative Law Judges. If the proposed decision and order 
is a denial of benefits, and the claimant has previously filed a 
request for a hearing, the proposed decision and order must notify the 
claimant that the case will be referred for a hearing pursuant to the 
previous request unless the claimant notifies the district director 
that he no longer desires a hearing. If the proposed decision and order 
is an award of benefits, and the designated responsible operator has 
previously filed a request for a hearing, the proposed decision and 
order must notify the operator that the case will be referred for a 
hearing pursuant to the previous request unless the operator notifies 
the district director that it no longer desires a hearing.
    (d) The proposed decision and order must reflect the district 
director's final designation of the responsible operator liable for the 
payment of benefits. Except as provided in paragraph (a)(3) of this 
section, no operator may be finally designated as the responsible 
operator unless it has received notification of its potential liability 
pursuant to Sec.  725.407, and the opportunity to submit additional 
evidence pursuant to Sec.  725.410. The district director must dismiss, 
as parties to the claim, all other potentially liable operators that 
received notification pursuant to Sec.  725.407 and that were not 
previously dismissed pursuant to Sec.  725.410(a)(3).

    Signed at Washington, DC, this 16th day of September, 2013.
Gary A. Steinberg,
Acting Director, Office of Workers' Compensation Programs.
[FR Doc. 2013-22874 Filed 9-24-13; 8:45 am]
BILLING CODE 4510-CK-P