[Federal Register Volume 81, Number 80 (Tuesday, April 26, 2016)]
[Rules and Regulations]
[Pages 24464-24482]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-09525]


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DEPARTMENT OF LABOR

Office of Workers' Compensation Programs

20 CFR Part 725

RIN 1240-AA10


Black Lung Benefits Act: Disclosure of Medical Information and 
Payment of Benefits

AGENCY: Office of Workers' Compensation Programs, Labor.

ACTION: Final rule.

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SUMMARY: This final rule revises the regulations implementing the Black 
Lung Benefits Act to address certain procedural issues that have arisen 
in claim adjudications and other technical issues. To protect miners' 
health, assist parties without adequate legal representation, and 
enhance the accuracy of benefits entitlement decisions, the final rule 
includes a new provision that requires all parties to exchange with 
each other any medical information developed in connection with a claim 
for benefits and allows for the imposition of sanctions for failure to 
comply with the rule. The final rule also clarifies a liable coal mine 
operator's obligation to pay effective benefits awards by requiring 
payment before allowing the operator to challenge the

[[Page 24465]]

award through the Act's modification procedures. In addition, the final 
rule resolves an ambiguity regarding how physicians' follow-up reports 
should be considered under the evidence-limiting rules, and allows the 
Department to fully participate in claims adjudications after the 
liable coal mine operator stops participating because of adverse 
financial developments, such as bankruptcy or insolvency.

DATES: This rule is effective May 26, 2016.

FOR FURTHER INFORMATION CONTACT: Michael Chance, Director, Division of 
Coal Mine Workers' Compensation, Office of Workers' Compensation 
Programs, U.S. Department of Labor, 200 Constitution Avenue NW., Suite 
N-3520, Washington, DC 20210. Telephone: 1-800-347-2502. This is 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

    The Black Lung Benefits Act (BLBA), 30 U.S.C. 901-944, provides for 
the payment of benefits to coal miners and certain of their dependent 
survivors on account of total disability or death due to coal workers' 
pneumoconiosis. 30 U.S.C. 901(a); Usery v. Turner Elkhorn Mining Co., 
428 U.S. 1, 8 (1976). Benefits are paid either by an individual coal 
mine operator that employed the coal miner (or its insurance carrier), 
or the Black Lung Disability Trust Fund (Trust Fund). Dir., OWCP v. 
Bivens, 757 F.2d 781, 783 (6th Cir. 1985).
    On April 29, 2015, the Department proposed revising the BLBA's 
implementing regulations to resolve several procedural issues that had 
arisen in claims administration and adjudication, and make other 
technical changes. 80 FR 23743-54 (Apr. 29, 2015) (NPRM). Each of these 
issues and the comments received in response to the proposed rule are 
fully addressed in the Section-By-Section Explanation below.

II. Statutory Authority

    Congress granted the Secretary broad rulemaking authority to 
administer the BLBA: ``The Secretary of Labor [is] authorized to issue 
such regulations as [he] deems appropriate to carry out the provisions 
of this subchapter.'' 30 U.S.C. 936(a). See, e.g., Elm Grove Coal Co. 
v. Dir., OWCP, 480 F.3d 278, 293 (4th Cir. 2007) (``[T]he Secretary has 
been vested with broad authority to implement the mandate of the Black 
Lung Act.''); Caney Creek Coal Co. v. Satterfield, 150 F.3d 568, 572 
(6th Cir. 1998) (describing 30 U.S.C. 936(a) as conferring ``a broad 
grant of congressional authority'' to promulgate regulations); Labelle 
Processing Co. v. Swarrow, 72 F.3d 308, 312 (3d Cir. 1995) (``Congress 
granted the Secretary of Labor broad authority to promulgate 
regulations under the BLBA.''); Harman Mining Co. v. Dir., OWCP, 826 
F.2d 1388, 1390 (4th Cir. 1987) (same); see also Dir., OWCP v. 
Mangifest, 826 F.2d 1318, 1330 n.21 (3d Cir. 1987) (regulation was an 
appropriate exercise of the Secretary's general authority where not 
precluded by specific statutory section). Congress further emphasized 
the Secretary's important role in the BLBA's administration by 
including many other grants of regulatory authority throughout the 
statute. See 30 U.S.C. 902(f)(1)(D), 921(b), 923(b), 932(a), 932(h), 
936(c), and 942. Two of these supplementary grants of regulatory 
authority, sections 923(b) and 932(a), are particularly important to 
this rulemaking.
    Section 923(b), which incorporates section 205(a) of the Social 
Security Act, 30 U.S.C. 923(b) (incorporating 42 U.S.C. 405(a)), gives 
the Department wide latitude in regulating evidentiary matters in 
claims adjudications. Specifically, section 205(a) grants the Secretary 
authority to ``adopt reasonable and proper rules and regulations to 
regulate and provide for the nature and extent of the proofs and 
evidence and the method of taking and furnishing the same in order to 
establish the right to benefits hereunder.'' Id. As explained in the 
NPRM, 80 FR 23746, section 205 has been interpreted as conferring 
``exceptionally broad'' power to regulate. See Heckler v. Campbell, 461 
U.S. 458, 466 (1983), quoting Schweiker v. Gray Panthers, 453 U.S. 34, 
43 (1981).
    Section 932(a), 30 U.S.C. 932(a), grants similarly strong 
regulatory authority to the Secretary. This section incorporates 
various provisions from the Longshore and Harbor Workers' Compensation 
Act (Longshore Act), 33 U.S.C. 901-950, but further authorizes the 
Secretary to ``prescribe in the Federal Register such additional 
provisions [] as he deems necessary'' and specifies that the 
incorporated Longshore Act sections apply ``except as otherwise 
provided . . . by regulations of the Secretary.'' 30 U.S.C. 932(a); see 
Dir., OWCP v. Nat'l Mines Corp., 554 F.2d 1267, 1273-74 (4th Cir. 1977) 
(holding that Congress empowered the Secretary to depart from specific 
requirements of the Longshore Act).
    One of the incorporated Longshore Act provisions, section 23(a), 
also provides important statutory authority for this rulemaking. 33 
U.S.C. 923(a), as incorporated by 30 U.S.C. 932(a). This section 
relieves the Department from traditional rules of procedure or evidence 
in claims determinations and plainly elevates truth seeking over 
litigation gamesmanship: ``the [adjudication officer] shall not be 
bound by common law or statutory rules of evidence or by technical or 
formal rules of procedure, except as provided by this chapter; but may 
make such investigation or inquiry or conduct such hearing in such 
manner as to best ascertain the rights of the parties.''Id.

III. Discussion of Significant Comments

    The Department received 18 comments, some joined by multiple 
individuals or entities, in response to the NPRM. Commenters included 
miners, benefits claimants, their representatives, a labor union, a 
coal mine company, an insurance company, industry and insurance trade 
associations, and one member of Congress. Five of the comments 
expressed general concerns about the black lung program and the 
difficulties miners face in obtaining benefits. The remaining comments 
addressed the proposed rules more specifically and are discussed below 
in the Section-by-Section Explanation. The Department appreciates these 
comments and has made several revisions to the final rule in response.
    The Department received no comments on the proposed revisions 
replacing the word ``shall'' with the word ``must'' or other 
appropriate plain-language phrase throughout the amended regulatory 
sections. See generally 80 FR 23743-44. Accordingly, the Department has 
retained those revisions in the final rule.

Section-by-Section Explanation

20 CFR 725.310 Modification of Awards and Denials
    (a) Section 725.310 implements section 22 of the Longshore Act, 33 
U.S.C. 922, as incorporated into the BLBA by 30 U.S.C. 932(a). Section 
22 generally allows for the modification of claim decisions based on a 
mistake of fact or a change in conditions up to one year after the last 
payment of benefits or denial of a claim.
    The Department proposed adding a new paragraph (e) to this 
regulation to ensure that responsible operators (and their insurance 
carriers) fully discharge their payment obligations while pursuing 
modification of a benefits award. 80 FR 23744-45, 23751. In the absence 
of a Benefits Review Board or court-ordered stay of payments, the 
proposed rule required that an

[[Page 24466]]

operator's request to modify an effective award be denied unless the 
operator proved that it had complied with all of its payment 
obligations under that award and any other currently effective award 
(such as a medical benefits award) in the claim. The Department noted 
that an ``effective'' award is generally an uncontested award entered 
by a district director or any award entered by an administrative law 
judge or higher tribunal. 80 FR 23744; 20 CFR 725.502(a). The 
Department proposed the rule both to ensure that claimants are fully 
compensated and to protect the Trust Fund, which must pay effective 
awards when an operator fails to do so. 80 FR 23744-45.
    (b) The Department received several comments addressing proposed 
paragraph (e). Four commenters expressed support for the proposal. 
Noting that modification proceedings can add years to the claims 
process and citing examples, one commenter praised this rule as 
pragmatic because it allows operators with legitimate defenses to 
pursue modification while reducing the incentive for operators to 
improperly use modification as a means to delay payment of benefits. 
Another commenter praised the proposal as clearly consistent with the 
Act and agreed with the Department's position that the Trust Fund 
should not be burdened with paying benefits on behalf of operators 
during the modification period. Two additional commenters expressed 
general support for the rule.
    Six commenters opposed the rule, arguing either that the Department 
should withdraw the rule completely or that it should be revised. 
Several of these commenters argue that the proposed rule should be 
withdrawn because it is unauthorized by law, unfair, and unnecessary. 
These commenters also argue that the rule will effectively deprive 
operators of the opportunity to challenge medical expenses and 
attorneys' fees.
    The Department has fully considered the comments received and 
determined that the rule should not be withdrawn. The Department has, 
however, revised the final rule to address the commenters' concerns 
regarding medical expenses and attorneys' fees.
    (c) As explained in the NPRM, 80 FR 23744-45, Congress established 
the Trust Fund in 1977 to serve as a secondary payor when there is no 
operator that may be held liable or when the liable operator defaults 
on its payment obligations. Congress envisioned the Trust Fund as a 
payor of last resort, and intended to ``ensure that individual coal 
operators rather than the trust fund bear the liability for claims 
arising out of such operators' mines to the maximum extent feasible.'' 
S. Rep. No. 95-209 at 9, reprinted in Committee on Education and Labor, 
House of Representatives, 96th Cong., Black Lung Benefits Act and Black 
Lung Benefits Revenue Act of 1977 at 612 (Comm. Print) (1979).
    Yet operators were not always meeting their payment obligations 
under effective benefit awards, relying instead on the Trust Fund to 
pay benefits while they appealed or sought modification. The Department 
attempted to resolve any confusion on this issue when it promulgated 
extensive revisions to the black lung program regulations in 2000. 65 
FR 80009-11 (Dec. 20, 2000). In that rulemaking, the Department revised 
Sec.  725.502 with the specific intent of clarifying when a benefits 
award was ``effective,'' and thus payable by the liable operator. 62 FR 
3366 (Jan. 22, 1997) (with revisions to Sec.  725.502, ``[t]he 
Department hopes to increase operator compliance with effective 
awards.''); 65 FR 80009 (Dec. 20, 2000) (``The most important changes 
[to Sec.  725.502] were designed to make clear to responsible operators 
their obligations under the terms of an effective award of benefits 
even though the claim might still be in litigation.''). The Department 
noted that operators, contrary to Congressional intent, routinely used 
the Trust Fund as a surrogate to ``reduce the risk of losing interim 
payments in the event the award is reversed.'' 64 FR 55000 (Oct. 8, 
1999). The Department clearly expressed its position that operators, 
and not the Trust Fund, are required to pay benefits pursuant to an 
effective award notwithstanding the pendency of a modification 
petition. 64 FR 55000-01.
    The Department's efforts in 2000, however, have not remedied the 
problem. Operators often do not meet their legal obligation to pay 
benefits while challenging effective awards, whether by appeal to the 
Benefits Review Board or appropriate court, or by seeking modification. 
Cases like those cited in the NPRM--including Crowe ex rel. Crowe v. 
Zeigler Coal Co., 646 F.3d 435, 445 (7th Cir. 2011), and Hudson v. Pine 
Ridge Coal Co., LLC, No. 2:11-00248, 2012 WL 386736, *5 (S.D. W.Va. 
Feb. 6, 2012)--continue to arise. See, e.g., Bull Creek Coal Corp. v. 
Dir., OWCP, 6th Cir. No. 14-3573, operator's appeal dismissed Nov. 6, 
2014 (in post-2000 claim, operator sought modification after appealing 
effective benefits award to the court, but later moved to dismiss its 
appeal; modification petition remains pending and the Department's 
records indicate that the operator has not paid pursuant to the award); 
Dalton v. Dir., OWCP, 738 F.3d 779 (7th Cir. 2013) (in post-2000 claim, 
Department's records indicate operator delayed Trust Fund reimbursement 
for approximately ten years while pursuing appeals of initial awards 
and a later modification petition). Indeed, the Department has 
identified more than nine hundred claims in which the Trust Fund has 
paid effective benefits awards in the operator's stead since October 1, 
2010. And, as explained in the NPRM, the existing enforcement 
mechanisms are difficult to use in these circumstances. 80 FR 23744-45. 
Thus, the Trust Fund is routinely forced to pay interim benefits to 
entitled claimants and bear the risk that the benefits award was in 
error, contrary to Congress' intent. At the time of the 2000 
rulemaking, the Trust Fund was indebted to the U.S. Treasury in the 
amount of $5.487 billion. As of the end of fiscal year 2012 and after a 
restructuring, which included a one-time non-refundable allocation of 
$6.497 billion to the Fund, the Trust Fund's debt remained over $6 
billion. See Emergency Economic Stabilization Act of 2008, Public Law 
110-343, section 113 (Oct. 3, 2008); OWCP Annual Report to Congress for 
FY 2012 at 63.
    Thus, the rule addresses a longstanding problem; it is not, as some 
commenters suggest, simply a reaction to the concerns Judge Hamilton 
expressed in his Crowe concurring opinion over this type of operator 
misconduct. The rule is intended to curb an unlawful practice. It will 
prevent operators from indefinitely delaying payments to claimants or 
reimbursement of the Trust Fund for payments made on the operator's 
behalf. As a result, the rule will prevent operators from taking 
advantage of the safeguards built into the Act to protect claimants, 
mainly the payment of benefits from the Trust Fund when the liable 
operator fails to pay. The Department has a fiduciary duty to protect 
the Trust Fund from such misconduct. 26 U.S.C. 9501(a)(2); see also 
Marfork Coal Co. v. Weis, 251 F. App'x 229, 233 (4th Cir. 2007) (``The 
OWCP Director, who acts as trustee for the Black Lung Benefits Fund, is 
responsible for conserving its assets.''); Boggs v. Falcon Coal Co., 17 
Black Lung Rep. 1-62, 1-65 (Ben. Rev. Bd. 1992) (noting that the 
Director is a trustee of the Trust Fund charged with a duty to protect 
its assets); Truitt v. N. Am. Coal Corp., 2 Black Lung Rep. 1-199, 1-
202 (Ben. Rev. Bd. 1979) (same).
    (d) Several commenters argue that no language in either the text or 
legislative

[[Page 24467]]

history of Longshore Act section 22 authorizes this proposed rule. 
While section 22 does not contain explicit language contemplating this 
rule, other sections of the Longshore Act require employers to pay 
benefits under an effective award and therefore require payment of 
compensation due even while modification proceedings are pending. See, 
e.g., 33 U.S.C. 918, 921(a) (requiring payment of benefits pursuant to 
an award regardless of whether the award is final unless the order is 
stayed by an appellate tribunal); Williams v. Jones, 11 F.3d 247, 259 
(1st Cir. 1993) (holding that employers must continue to pay pursuant 
to an effective award unless they are able to prove that doing so would 
result in irreparable injury). It is common practice for Longshore 
employers to comply with their obligations to pay compensation pursuant 
to an effective award while pursuing modification. There simply is no 
secondary payor--like the Trust Fund in black lung claims--available to 
serve as an alternative source of compensation payments in every case 
in which an employer does not meet its legal obligations, so there is 
no need for the Longshore Act to address this issue explicitly. Thus, 
the absence of any explicit language in section 22 mandating such 
compliance does not make the black lung rule inconsistent with 
Longshore Act practice.
    This scenario also demonstrates why Congress incorporated the 
Longshore Act provisions into the BLBA with the qualification that the 
Department has authority to promulgate rules tailoring the incorporated 
provisions to the black lung program's specific needs. As discussed 
above (see Section II, supra), the Secretary's broad rulemaking 
authority under the BLBA specifically includes the ``discretion to 
deviate from the LHWCA procedures and to prescribe `such additional 
provisions, not inconsistent with those specifically excluded by this 
subsection, as [the Department] deems necessary.' '' Bethenergy Mines 
Inc. v. Dir., OWCP, 854 F.2d 632, 634-35 (3d Cir. 1988) (quoting 30 
U.S.C. 932(a)). The existence of the Trust Fund creates a need for a 
specific rule in the black lung program. Because the Department is 
authorized by statute to alter the procedures for modification, this 
rule is well within the Department's regulatory authority, even if 
section 22 does not explicitly require operators to demonstrate 
compliance with outstanding effective orders as a precondition to 
modification.
    These same commenters also argue that the proposed regulation 
violates the Black Lung Benefits Revenue Act of 1977, which created the 
Trust Fund and specifies the circumstances under which it may pay 
benefits. The Revenue Act, codified at 26 U.S.C. 9501(d), authorizes 
the Trust Fund to pay benefits if the responsible operator either has 
not commenced payment within 30 days of an initial determination of 
eligibility, or has not made a payment within 30 days of its due date. 
26 U.S.C. 9501(d). By regulation, the Department has provided that such 
payments by the Trust Fund are mandatory. See 20 CFR 725.420(c); 
725.522. The commenters reason that because that statute authorizes 
(and the regulations compel) the Trust Fund to pay benefits to an 
entitled claimant when a liable operator fails to pay, the statute 
necessarily endorses the operator's refusal to pay. The statute 
contains no such endorsement. In fact, the statutory and regulatory 
enforcement provisions demonstrate that when Congress created the Trust 
Fund, it did not suspend operators' obligations to pay benefits once an 
effective or final order is issued. See 33 U.S.C. 918(a), incorporated 
by 30 U.S.C. 932(a) and implemented by 20 CFR 725.605 (establishing 
procedures for enforcement of effective awards even if those awards are 
not final); 33 U.S.C. 921(d), incorporated by 30 U.S.C. 932(a) and 
implemented by 20 CFR 725.604 (allowing for enforcement of final awards 
of benefits in federal court); Hudson v. Pine Ridge Coal Co., LLC, No. 
2:11-00248, 2012 WL 386736, at *5 (S.D. W.Va. Feb. 6, 2012) (enforcing 
BLBA compensation order notwithstanding pendency of operator's 
modification petition). The comment provides no support for its 
assertion that Congress, in effect, approves of employers ignoring 
their BLBA payment obligations. See also 65 FR at 80011 (Dec. 20, 2000) 
(in revising Sec.  725.502, rejecting similar comment and concluding 
that Congress did not intend the Trust Fund ``to absorb all operators' 
liabilities as a matter of course until the conclusion of litigation in 
every approved claim'').
    (e) Several commenters allege that the proposed rule effectively 
denies the modification remedy to operators by eliminating their 
financial incentive to pursue modification. They contend that even if 
operators are successful on modification, they will be unable to recoup 
the benefits that were paid pursuant to previously effective awards. 
See 20 CFR 725.540(a) (allowing for recoupment of overpaid benefits). 
The Department does not believe that the commenters' perceived problems 
with the system for recovering overpayments justify withdrawing this 
rule.
    The commenters allude to substantive and procedural reasons that 
operators may struggle to recover overpayments. Substantively, 
overpayments may not be recovered when the claimant is without fault in 
receiving the overpayment and if recovery would defeat the purpose of 
the Act or be against equity and good conscience. 20 CFR 725.542. This 
is true whether the overpayment is owed to an operator or to the Trust 
Fund. See 20 CFR 725.547. The initiation of payments prior to final 
adjudication is a characteristic of workers' compensation programs 
generally. See, e.g., Doucette v. Hallsmith/Sysco Food Servs., Inc., 10 
A.3d 692, 694 (Me. 2010) (recognizing express provision in Maine 
workers' compensation law that requires payment of benefits pending 
appeal and holding that court is not empowered to stay such payments); 
Coley v. Camden Assoc., Inc., 702 A.2d 1180, 1184 (Conn. 1997) 
(Connecticut's workers' compensation law requires employers or insurers 
to pay benefits to claimants during the pendency of appeal); Garcia v. 
McCord Gasket Corp., 534 N.W.2d 473, 478 (Mich. 1995) (affirming 
dismissal of employer's appeal for failure to pay benefits pursuant to 
effective, but not final, order as required by Michigan's workers' 
compensation law). Although this practice carries the risk that some 
claimants will receive compensation to which they were not entitled, 
that risk has been deemed an acceptable part of the workers' 
compensation compromise. Under the Act and regulations, the risk of an 
unrecoverable overpayment exists in every case where benefits are 
awarded, but the legislative history of the Act demonstrates Congress 
intended that operators, not the Trust Fund, should bear that risk. 
See, e.g., Old Ben Coal Co. v. Luker, 826 F.2d 688, 693 (7th Cir. 
1987); Nowlin v. Eastern Assoc. Coal Corp., 331 F. Supp. 2d 465, 476 
(N.D. W.Va. 2004) (``[T]he public is served by placing the risk of non-
collection of overpayments on the coal mine operator rather than on the 
Trust Fund'').
    Procedurally, these commenters argue that operators encounter 
difficulties in obtaining overpayment orders from the Department, and 
then in enforcing them against claimants because the BLBA does not 
grant jurisdiction to any court for this purpose. Overpayment 
proceedings are governed by Sec. Sec.  725.547(b) and 725.548. 20 CFR 
725.547(b), 725.548. Section 725.547(b) specifies that ``[n]o operator 
or carrier may recover, or make an adjustment of, an overpayment 
without prior application to and approval'' by the

[[Page 24468]]

Department. Section 725.548(a) authorizes district directors to issue 
appropriate orders to protect the rights of the parties, and Sec.  
725.548(b) provides that disputes will be resolved through the same 
adjudication procedures that govern claims. The Department understands 
its essential role in processing operator overpayment requests and is 
committed to cooperating with the parties to ensure prompt resolution. 
To that end, the Department will review its procedures for handling 
operator overpayment requests and will ensure that all personnel are 
properly trained in their handling as part of this rule's 
implementation.
    Operator enforcement of overpayment orders, however, is an issue 
that is outside the scope of this rulemaking. Because this rule does 
not impose any new obligations on operators (see 80 FR 23744 
(explaining that operators are legally required to pay pursuant to 
effective awards notwithstanding the pendency of a modification 
petition)), it also does not impose a new need for an enforcement 
remedy. These concerns represent a general complaint about the law as 
it currently stands and therefore should be directed to Congress, not 
the Department. The Department may not create a new cause of action in 
the courts. See Kontrick v. Ryan, 540 U.S. 443, 452 (2004) (``Only 
Congress may determine a lower federal court's subject-matter 
jurisdiction.''); Castaneda v. Immigration & Naturalization Serv., 23 
F.3d 1576, 1579 n.2 (10th Cir. 1994) (``[A]dministrative agencies 
cannot by promulgation or interpretation of their own regulations 
either augment or nullify the jurisdiction of the federal courts as 
delimited by Congress.'')
    In sum, this rule does not impose any payment obligations on 
operators that do not exist currently, and thus should have no impact 
on operators' incentive to pursue modification when they believe it is 
warranted. See, e.g., Crowe, 646 F.3d at 445 (Hamilton, J., concurring) 
(noting that a pending modification request does not suspend an 
operator's obligation to pay pursuant to an effective award); Hudson, 
2012 WL 386736, at *5 (same). Nor does this rule remove the primary 
incentive for operators to pursue modification: obtaining an order 
relieving them from the obligation to pay any additional benefits.
    (f) The commenters contend that this rule is unfair because 
claimants and operators are treated differently. Specifically, 
operators must demonstrate that they have complied with their payment 
obligations before seeking modification of an award, but claimants are 
not similarly required to repay any overpaid benefits before seeking 
modification of a denial.
    An overpayment could occur in any case where an adjudicator awards 
benefits to the claimant--thereby entitling the claimant to interim 
benefit payments pending final adjudication--and a higher-level 
adjudicator or appellate body denies the claim. See 20 CFR 725.522(b). 
Significantly, a decision reversing an award to a denial does not 
compel a claimant to repay previously paid benefits because the 
overpaid claimant has a statutory right to seek waiver of recovery of 
the overpayment. See 42 U.S.C. 404(b), as incorporated by 30 U.S.C. 
923(b); see also 20 CFR 725.541; 725.542; 725.547. These provisions 
allow each overpaid claimant to argue that he or she need not repay the 
benefits because he or she was without fault in incurring the 
overpayment, and repayment would either defeat the purpose of the Act 
or be against equity and good conscience.
    Claimants only have one year from the date of a denial of benefits 
to request modification. Yet waiver determinations commonly take more 
than that one year to complete. They are factually involved, requiring 
compilation of a completely different record addressing the claimant's 
role in creating the overpayment and the claimant's current financial 
position. As in a benefits claim proceeding, a district director's 
waiver decision is not binding if the claimant requests an 
administrative law judge hearing, and no repayment by the claimant is 
due until after the administrative law judge considers the waiver 
request. See 20 CFR 725.419(a), (d); 20 CFR 725.548(b). Thus, requiring 
claimants to repay overpayments before seeking modification could put 
them in the untenable position of having to choose between two 
statutory rights: (1) Repaying overpaid benefits within the one-year 
time limit for seeking modification and foregoing their right to seek a 
repayment waiver; or (2) seeking a repayment waiver and foregoing the 
right to seek modification.
    This situation is not comparable to an operator's refusal to pay 
benefits pursuant to an effective award. Under an effective award, an 
operator is legally required, by both the BLBA and its implementing 
regulations, to pay benefits without any further action. 33 U.S.C. 
921(b)(3) and (c), as incorporated by 30 U.S.C. 932(a); 20 CFR 725.502; 
Crowe, 646 F.3d at 445 (operator is entitled to seek modification, but 
``not legally entitled simply to ignore the final order of payment.''); 
Vincent v. Consolidated Operating Co., 17 F.3d 782, 785-86 (5th Cir. 
1994) (enforcing award under the Longshore Act despite employer's 
modification request); Williams v. Jones, 11 F.3d 247, 259 (1st Cir. 
1993) (same); Hudson, 2012 WL 386736, at *5 (denying motion to dismiss 
enforcement petition because of pendency of modification request). 
Section 725.310(e) simply requires operators to comply with their legal 
obligations before accessing the modification process. Moreover, the 
one-year period during which an operator may seek modification is 
constantly shifting because it runs from the date of last payment of 
benefits, and benefits are paid monthly. Thus, an operator might be in 
a position to seek modification many years after the initial award was 
entered.
    (g) Although the Department has determined that proposed Sec.  
725.310(e) should be promulgated, the final rule contains several 
revisions based on comments received.
    Several commenters contend that the rule would require an operator 
who wants to challenge a particular medical expense or an attorney's 
fee award to delay seeking modification until ancillary litigation 
regarding the disputed amount has concluded. The comment reveals an 
ambiguity in the proposed rule that the Department has clarified in the 
final rule by more specifically describing in Sec.  725.310(e)(1) which 
awards an operator must pay before pursuing modification.
    Miners who meet the BLBA's entitlement criteria are entitled to 
medical benefits for treatments necessitated by their pneumoconiosis 
and resultant disability. 20 CFR 725.701(a). A typical award of 
benefits will order the responsible operator to pay medical benefits 
generally, but will not contain findings as to whether any specific 
medical expense is compensable under the Act and regulations. The 
regulations recognize several valid reasons why a particular bill may 
be disputed, including that the medical service or supply was not for a 
pulmonary disorder or was unnecessary. 20 CFR 725.701(e). Operators 
have the right to dispute their liability for individual medical bills 
or charges and to take an unresolved dispute over the compensability of 
a medical bill to the Office of Administrative Law Judges for 
resolution. See 20 CFR 725.708. Any employer contest of an individual 
medical bill that goes to an administrative law judge results either in 
an order requiring payment or an order relieving the employer of the 
obligation to pay. See 20 CFR 725.701.
    Thus, it is not uncommon for there to be multiple effective orders 
compelling an employer to pay medical benefits in

[[Page 24469]]

a given case. While proposed Sec.  725.310(e)(1) requires payment of 
only ``currently effective'' awards as defined by Sec.  725.502(a), it 
does not identify whether a general award of medical benefits or a 
later award addressing specific medical charges triggers the operator's 
obligation to pay before being allowed to pursue modification. The 
Department has modified the final rule to clarify that only effective 
orders directing payment of specific medical bills must be paid before 
an operator may pursue modification. Such an order may arise in two 
ways. First, an effective order may arise if an operator does not 
timely contest specific medical bills brought to its attention by a 
district director. See 20 CFR 725.502(a)(2). Second, an effective order 
directing the payment of specific medical bills may be entered by an 
administrative law judge after a hearing on the compensability of those 
medical charges. See id. This revision ensures that operators will 
maintain the right to contest the compensability of each individual 
medical expense before an administrative law judge without burdening 
the right to seek modification of the underlying benefits award while 
review is underway. The final rule also protects claimants and the 
Trust Fund by requiring prompt payment or reimbursement of medical 
expenses that have been adjudicated to be compensable.
    The commenters similarly contend that the proposed rule would 
require employers to delay seeking modification until ancillary 
litigation regarding attorneys' fees is concluded. The proposed rule 
requires that attorneys' fees be paid before an employer is allowed to 
pursue modification provided two conditions are met: The fee must be 
``approved,'' and the underlying benefits award must be final (i.e., 
the time to appeal the benefits award has expired or appellate review 
has concluded). The proposed rule does not define the term 
``approved,'' and the Department recognizes that the term may be 
susceptible to multiple interpretations.
    In proposing Sec.  725.310(e)(1), the Department intended to 
require operators to pay only those amounts that are otherwise due and 
payable as a precondition to seeking modification. With regard to 
attorney fees, the case law construing section 28 of the Longshore Act, 
the source of the BLBA's attorneys' fee provision (see 33 U.S.C. 928, 
as incorporated by 30 U.S.C. 932(a)), is clear that attorneys' fee 
awards are not due and payable until the underlying benefit award is 
final, see Thompson v. Potashnick Constr. Co., 812 F.2d 574, 577 (9th 
Cir. 1987), and the fee award is final as well. See Johnson v. Dir., 
OWCP, 183 F.3d 1169, 1171 (9th Cir. 1999). See also 20 CFR 725.367(b) 
(requiring payment of attorney fee only ``after the award of benefits 
becomes final''). Thus, the Department has amended Sec.  725.310(e) to 
clarify that an employer must pay attorney fee awards prior to 
modification only if both the underlying benefit award and the fee 
award are final as defined by 20 CFR 725.419(d) (district director 
decision), 725.479(a) (administrative law judge decision) or 802.406 
(Benefits Review Board decision).
    Two commenters object to proposed Sec.  725.310(e)(1)(ii), which 
requires employers to reimburse the Trust Fund for benefits paid to 
claimants ``with such penalties and interest as are appropriate'' prior 
to seeking modification. The commenters assert that the term 
``penalties'' is ambiguous and confusing and that its meaning should be 
clarified. They note that the Department has proposed amending other 
regulations (Sec. Sec.  725.601 and 725.607), in part to make clear 
that additional compensation is not a ``penalty.'' The commenters also 
suggest that the modifying clause, ``as are appropriate,'' could be 
read as a grant of discretion to the adjudicator to fashion extra-
regulatory penalties.
    The commenters are correct that the term ``penalties'' is not 
intended to refer to the additional compensation that is payable to 
claimants under Sec.  725.607, and the Department did not intend to 
authorize adjudicators to assess new penalties against operators. The 
proposed rule refers to certain statutory and regulatory civil money 
penalties that are payable to the Trust Fund. These penalties may be 
imposed for failure to secure the payment of benefits, i.e., an 
employer's failure either to secure commercial insurance or receive 
permission to self-insure its benefit liability (30 U.S.C. 933(d); 20 
CFR 726.300) and for an employer's failure to file a required report 
(30 U.S.C. 942(b); 20 CFR 725.621(d)). After considering the 
commenters' objections, the Department has determined that the language 
requiring operators to pay civil money penalties as a condition to 
seeking modification of an award of benefits is unnecessary. Therefore, 
the Department has deleted the words ``penalties'' and ``as are 
appropriate'' from Sec.  725.310(e) in the final rule.
    The Department has revised Sec.  725.310(e) in the final rule to 
reflect these comments and to simplify the rule. Paragraph (e)(1) now 
defines ``effective'' and ``final'' orders by reference to the 
appropriate regulations. Paragraph (e)(2) retains the general 
requirement that operators must meet their payment obligations before 
pursuing modification, which appeared in proposed paragraph (e)(1). The 
Department has removed the phrase ``currently effective'' in describing 
orders that must be paid because it is redundant; orders are no longer 
``effective'' when they are vacated by a higher tribunal or superseded 
by an effective order on modification. See 20 CFR 725.502(a)(1). 
Revised paragraphs (e)(2)(i)-(v) describe the particular obligations an 
operator must prove it has satisfied and implements the revisions 
described in detail above regarding orders awarding medical benefits or 
attorneys' fees, and striking the words ``penalties. . . . as are 
appropriate'' from obligations an operator must satisfy.
    (h) No other significant comments were received concerning this 
section, and the Department has promulgated the remainder of the 
regulation as proposed.
20 CFR 725.413 Disclosure of Medical Information
    (a) The Department proposed a new provision that would require the 
parties to exchange all medical information developed in connection 
with a claim. 80 FR 23745-47, 23752. Currently, parties may develop 
medical information (subject to certain limits on examinations of the 
miner) in excess of the evidentiary limitations set out in Sec.  
725.414, and then select from that information those pieces they wish 
to submit into evidence. Medical information developed but not 
submitted into evidence generally remains in the sole custody of the 
party who developed it unless an opposing party is able to obtain the 
information through formal discovery.
    The Department's proposed rule would change this status quo by 
requiring parties to share medical information developed in connection 
with a claim. The Department articulated several reasons for the 
change. See 80 FR 23746-47. First, experience has demonstrated that 
miners may be harmed if they do not have access to all information 
about their health, and the primary purpose of the Mine Safety and 
Health Act is to protect the health and safety of miners. To illustrate 
the potential for adverse impact on the miner's health, the Department 
described the proceedings in miner Gary Fox's claims for benefits, 
where the coal-mine operator withheld medical information documenting 
complicated pneumoconiosis from both

[[Page 24470]]

the miner and some of its own medical experts. Second, by requiring an 
exchange of medical information, the rule protects parties who do not 
have legal representation who can assist in the formal discovery 
process. Finally, allowing parties fuller access to medical information 
may lead to better, more accurate decisions on claims--a goal that is 
consistent with Congressional intent.
    In addition to establishing the disclosure requirement and time 
frames within which parties must exchange medical information, the 
proposed rule set forth a non-exclusive list of sanctions an 
adjudication officer may impose on the party or the party's attorney 
for failure to disclose medical information in accordance with the 
rule. 80 FR 23752. But the rule provided that sanctions may be imposed 
only after giving the party an opportunity to demonstrate ``good 
cause'' for non-disclosure, and the sanctions imposed must be 
``appropriate to the circumstances.'' Id. The proposed rule also 
required the adjudication officer to consider whether sanctions should 
be mitigated because the party was not represented by an attorney when 
the non-disclosure occurred, or the non-disclosure was attributable 
solely to the party's attorney.
    (b) The Department received several comments on the proposed rule. 
The comments ranged from supporting the proposed rule's promulgation 
without change to advocating the rule's withdrawal. Those commenters 
supporting the rule agreed with the Department that the rule is a fair 
and reasonable method of protecting the health and safety of miners, 
noting variously that it was ``critical'' and ``ethical'' for miners to 
have access to their health records. Others described experiences in 
representing claimants where the operator had skewed the medical 
evidence by withholding various pieces of medical information from 
their own experts or only partially disclosing a physician's opinion. A 
Member of Congress praised the Department's efforts, noting that the 
proposed rule could prevent harm to a miner who might otherwise be 
unaware of medical problems he or she may suffer and would level the 
playing field in claims adjudications, especially for unrepresented 
miners who would have difficulty navigating the discovery process.
    Those commenters opposed to proposed Sec.  725.413 state that the 
Department does not have statutory authority to promulgate the rule, or 
to impose sanctions, or both. They contend that neither the 
incorporated Social Security Act and Longshore Act provisions (see 
Section II, supra) granting the Secretary regulatory authority nor the 
Administrative Procedure Act (APA) are sufficient to sustain 
promulgation of this regulation. They also argue that the rule is 
unnecessary because only one attorney engaged in the conduct the rule 
addresses. They further contend that the Department has not 
demonstrated a quantifiable positive impact on miners' health that 
would result from the rule. If the Department promulgates a medical 
information disclosure rule, several commenters ask for clarification 
of specific portions of the rule.
    After giving full consideration to the comments, the Department 
believes the rule is important to protecting the health of miners and 
is promulgating it with certain revisions described below. The 
following discussion addresses all of the significant comments the 
Department received and explains each revision in the final rule.
    (c) Some commenters ask the Department to withdraw the rule, 
arguing that the Department lacks statutory authority to promulgate it. 
The Department disagrees with this comment. As discussed in detail 
above (see Section II, supra), Congress granted the Secretary broad 
rulemaking authority generally, and in governing evidentiary matters 
specifically. See 30 U.S.C. 923(b) (incorporating 42 U.S.C. 405(a)); 
936(a). The statute also plainly authorizes the Department to depart 
from traditional procedural and evidentiary rules (such as those 
governing discovery) in order to best ascertain the rights of the 
parties in claims adjudications. 33 U.S.C. 923(a), as incorporated by 
30 U.S.C. 932(a).
    The objecting commenters dispute the Department's reliance on these 
statutory authorities. Without acknowledging the Secretary's general 
rulemaking authority under 30 U.S.C. 936(a), they contend that neither 
the incorporated Longshore Act nor the incorporated Social Security Act 
provisions support promulgation of Sec.  725.413. First, these 
commenters assert that the Department's reliance on Longshore Act 
section 23(a) is hypocritical because proposed Sec.  725.413 is itself 
a technical rule of procedure. While Sec.  725.413 is undoubtedly 
procedural, it will relieve the parties from the burden of complex 
discovery rules and will simplify claim proceedings and make them 
fairer, especially for those parties not represented by counsel. The 
rule is thus fully consistent with section 23(a)'s overarching command 
to ``best ascertain the rights of the parties.''
    Next, the same commenters state that the Department cannot rely on 
Social Security Act section 205(a), which they claim has no 
applicability to Part C BLBA claim proceedings (i.e., claims filed 
after 1973 and administered by the Department) because it is located in 
Part B of the Act, and provides no authority for importing Social 
Security Administration procedures into Part C claim adjudications. The 
commenters are simply mistaken on their first point and misconstrue the 
Department's action on their second. The fact that the Social Security 
Act incorporation appears in Part B of the Act does not preclude the 
Secretary from basing regulations for Part C claims on that authority. 
30 U.S.C. 940 (providing that ``amendments made by the Black Lung 
Benefits Act of 1972,'' which included the incorporation of Social 
Security Act section 205(a), ``shall, to the extent appropriate, also 
apply to this part [C].''). Indeed, both the District of Columbia and 
Fourth Circuit Courts of Appeals have upheld the Department's 
procedural regulations governing Part C claims by relying at least in 
part on this statutory authority. See Nat'l Min. Ass'n. v. Dep't. of 
Labor, 292 F.3d 849, 873-7 (D.C. Cir. 2002) (holding that section 
205(a) and 5 U.S.C. 556(d)--which allows agencies to exclude ``unduly 
repetitious evidence'' as ``a matter of policy''--constituted 
sufficient authority for the regulatory evidence limitations at 20 CFR 
725.414, which are applicable to Part C claims); Elm Grove Coal Co. v. 
Dir., OWCP, 480 F.3d 278, 293 (4th Cir. 2007) (holding in Part C claim 
that incorporation of section 205(a), Administrative Procedure Act 
section 556(d), and grant of general rulemaking authority in 30 U.S.C. 
936 authorize the Secretary ``to adopt reasonable regulations on the 
nature and extent of the proofs and evidence in order to establish 
rights to benefits under the Act''). Moreover, Sec.  725.413 does not 
import Social Security Administration procedures but instead provides a 
new rule applicable to Part C claims.
    Promulgating a procedural rule requiring parties to exchange 
medical information developed in connection with a claim--a rule that 
governs proceedings before the agency, is party-neutral, protects a 
miner's health, and assists unrepresented parties--falls well within 
these statutory authorities.
    (d) Apart from requiring the exchange of medical information, 
several commenters contend that the Department lacks statutory 
authority to promulgate regulations permitting the imposition of 
sanctions on parties or their attorneys who fail to properly

[[Page 24471]]

disclose medical information. In support, they assert that: The 
Administrative Procedure Act (APA), 5 U.S.C. 501 et seq., and section 
558(b) in particular, 5 U.S.C. 558(b), prohibit an agency from imposing 
sanctions; only courts established under Article III of the 
Constitution (i.e., federal district and appellate courts) may impose 
sanctions of fines and imprisonment; and neither the APA nor the BLBA 
authorizes sanctioning of attorneys in any event.
    To the extent these commenters base their objections on the APA, 
their comments misapprehend how the APA's provisions interface with the 
BLBA. By statute, the APA does not apply to BLBA adjudications except 
as ``otherwise provided'' in the Mine Safety and Health Act. 30 U.S.C. 
956 (``Except as otherwise provided in this chapter, the provisions of 
sections 551 to 559 and sections 701 to 706 of Title 5 shall not apply 
to the making of any order, notice, or decision made pursuant to this 
chapter[.]''). The BLBA otherwise provides for application of the APA 
provisions governing hearings--specifically, 5 U.S.C. 554 (which, in 
turn, refers to 5 U.S.C. 556)--by incorporating Longshore Act section 
19(d). 33 U.S.C. 919(d), as incorporated by 30 U.S.C. 932(a). But as 
explained above (see Section II, supra), that incorporation is subject 
to an important limitation: The Longshore Act provisions are 
incorporated ``except as otherwise provided . . . by regulations of the 
Secretary.'' 30 U.S.C. 932(a). Thus, ``under the express language of 
the BLBA, the APA does not trump [a black lung program] regulation.'' 
Amax Coal Co. v. Dir., OWCP, 312 F.3d 882, 893 (7th Cir. 2002); accord 
Midland Coal Co. v. Dir., OWCP, 149 F.3d 558, 563 (7th Cir. 1998) 
(overruled on other grounds by Saban v. U.S. Dep't of Labor, 509 F.3d 
376 (7th Cir. 2007)).
    Unlike the APA hearing provisions, neither the BLBA nor the 
Department's implementing regulations calls for application of section 
5 U.S.C. 558, the APA section the commenters rely upon most heavily to 
challenge the Department's authority to impose sanctions under Sec.  
725.413. Section 558(b) provides that ``[a] sanction may not be imposed 
. . . except within jurisdiction delegated to the agency and as 
authorized by law.'' 5 U.S.C. 558(b). The Mine Safety and Health Act 
specifically excludes this APA section from incorporation unless 
``otherwise provided,'' and the BLBA does not ``otherwise provide'' for 
its application. 30 U.S.C. 956. Nor is this provision incorporated 
through the circuitous Longshore Act route that brings the APA's 
hearing-related provisions into the BLBA. Thus, the commenters' 
reliance on section 558 is misplaced.
    Even assuming that (1) all provisions of the APA apply and (2) the 
Department may not vary them by regulation, solid authority holds that 
agencies may impose sanctions, short of fines and imprisonment, to 
enforce compliance with their discovery rules, particularly discovery 
orders made in the context of judicial-type proceedings. See Atlantic 
Richfield Co. v. U.S. Dep't of Energy, 769 F.2d 771, 794 (D.C. Cir. 
1984). The District of Columbia Circuit recognized in Atlantic 
Richfield that it would be ``incongruous to grant an agency authority 
to adjudicate--which involves vitally the power to find the material 
facts--and yet deny authority to assure the soundness of the 
factfinding process'' through use of discovery sanctions. See also 
Roadway Express Inc. v. U.S. Dep't of Labor, 495 F.3d 477, 485 (7th 
Cir. 2007) (approving of ALJ's use of discovery sanction to ``level the 
playing field'' where party's non-compliance ``made it impossible'' for 
the ALJ to decide the case on the merits); McAllister Towing & Transp. 
Co., Inc. v. NLRB, 156 Fed. App'x 386, 388 (2d Cir. 2005) (affirming 
ALJ's imposition of discovery sanctions, citing Atlantic Richfield). 
But see NLRB v. Int'l Medication Sys., Ltd., 640 F.2d 1110, 1114 (9th 
Cir. 1981) (agency was required to enforce a subpoena through federal 
district court and could not preclude employer from introducing 
evidence on issue as sanction for failure to comply with subpoena). And 
while it is true that the APA prohibits an agency's imposition of 
sanctions ``except within jurisdiction delegated to the agency and as 
authorized by law,'' 5 U.S.C. 558(b), this provision, even if 
applicable, does not preclude sanctions aimed at protecting the 
integrity of the administrative process. Am. Bus Ass'n v. Slater, 231 
F.3d 1, 7 (D.C. Cir. 2000). See also Davy v. SEC, 792 F.2d 1418, 1421 
(9th Cir. 1986) (general grant of regulatory authority to SEC was 
sufficient to allow adoption of rule providing for sanctioning 
accountants practicing before the agency).
    Contrary to the commenters' implication, no different rule applies 
when sanctioning parties' representatives. Agencies have the inherent 
authority to discipline lawyers who appear before them. See Polydoroff 
v. I.C.C., 773 F.2d 372, 374 (D.C. Cir. 1985). See also 80 FR 28768, 
28769-75 (May 19, 2015) (rejecting same concerns raised in response to 
the proposed Office of Administrative Law Judges Rules of Practice and 
Procedure, which also allowed imposition of sanctions in certain 
circumstances).
    Nor does section 27 of the Longshore Act, 33 U.S.C. 927, 
incorporated into the BLBA by 30 U.S.C. 932(a), preclude the Department 
from imposing discovery sanctions. That provision authorizes 
adjudication officers to refer acts of contempt to a United States 
district court for punishment by fine or imprisonment. It does not 
preclude the Department from imposing the lesser sanctions set out in 
the proposed rule. See Atlantic Richfield, 769 F.2d at 795 (noting that 
``[a]n evidentiary preclusion order falls far short of an effort to 
exact compliance with a subpoena by a judgment of fine or 
imprisonment'').
    Two commenters state that the list of possible sanctions in 
proposed Sec.  725.413(c)(2) is unclear because it is non-exclusive, 
suggesting that the Department strike the sanctions list from the rule. 
The Department anticipates that in most instances, an adjudication 
officer will impose one of the listed sanctions, and therefore the 
presence of a sanctions list leads to greater clarity. An adjudication 
officer, who is charged with governing the conduct of proceedings and 
resolving contested issues of fact or law (see generally 20 CFR 
725.455), should be free, however, to fashion a remedy unique to the 
particular case at hand when warranted. But to clarify this provision 
and allay any concerns that the non-exclusive list could lead to the 
imposition of fines or imprisonment, the Department has revised the 
rule to preclude these sanctions. Fines and imprisonment are inherent 
in contempt powers, which section 27 of the Longshore Act vests in the 
federal courts. 33 U.S.C. 927, as incorporated by 30 U.S.C. 932(a). 
This revision appears at Sec.  725.413(e)(3) in the final rule.
    Finally, one commenter proposed expanding available sanctions to 
include permanent disbarment of attorneys from all BLBA practice. The 
Department does not believe that this sanction is necessary to enforce 
the medical information disclosure rule effectively. An adjudicator's 
authority extends to determining the merits of an individual claim. 
See, e.g., 33 U.S.C. 919(a), as incorporated by 30 U.S.C. 932(a) (the 
adjudicator has the ``authority to hear and determine all questions in 
respect of [a] claim''). Thus, the Department believes that any 
sanction's impact should be confined to the claim under consideration. 
The sanctions listed in Sec.  725.413 are claim-specific and should be 
sufficient to protect the integrity of the claims process. The 
Department therefore declines to adopt this suggestion.

[[Page 24472]]

    (e) Three commenters argue that requiring parties to exchange 
medical information is an overreaction to an isolated case, claiming 
that only one attorney engaged in the conduct addressed by proposed 
Sec.  725.413. These commenters state that the Department cited only 
one case involving undisclosed medical information in the NPRM, and 
failed to fully assess the need for the rulemaking.
    These comments are not accurate. Although the Department 
illustrated the need for the rule with a detailed summary of miner Gary 
Fox's claims, it also cited two additional cases (involving different 
attorneys) in the NPRM. 80 FR 23746. More importantly, the issue of 
withholding medical information generated by non-testifying experts has 
persistently recurred in black lung claims and has been litigated by 
some members of the associations making this comment. Several other 
commenters listed and described additional claims in which medical 
evidence was withheld. These cases, along with others the Department 
has identified, generally fall into three categories. In the first, the 
adjudication officer denies the party's (either the claimant's or the 
operator's) motion to compel discovery of the medical information 
because the party did not meet the standard for gaining discovery of a 
non-testifying expert's opinion imposed under the Office of 
Administrative Law Judges Rules of Practice and Procedure (OALJ Rules). 
See, e.g., Keener v. Peerless Eagle Coal Co., ALJ Ruling and Order on 
Claimant's Motion to Compel and Employer's Motion for Protective Order, 
2004-BLA-06265 (Apr. 12, 2005), aff'd BRB Decision and Order, BRB No. 
05-1008 (Jan. 26, 2007); Lester v. Royalty Smokeless Coal Co., ALJ 
Decision and Order on Remand Granting Benefits, 2004-BLA-05700 (Mar. 4, 
2008). In the second, the claimant's motion to compel is granted, but 
the employer still avoids disclosure by accepting liability for 
benefits and paying the claim. See, e.g., Daugherty v. Westmoreland 
Coal Co., ALJ Order Remanding Case to District Director, 2001-BLA-00594 
(Mar. 21, 2005); Renick v. Consolidation Coal Co., ALJ Order of Remand 
for Payment, 2002-BLA-00083 (Sept. 9, 2002); and Harris v. Westmorland 
Coal Co., Order Denying Claimant's Request for Reconsideration, 1998-
BLA-0188 (Aug. 7, 1998). And in the third, the motion to compel is 
granted and the medical information is disclosed. See, e.g., Wood v. 
Elkay Mining Co., ALJ Decision and Order--Awarding Benefits, 2001-BLA-
00701 (May 23, 2007); Huggins v. Windsor Coal Co., BRB Decision and 
Order, BRB No. 06-0710 (Aug. 15, 2007). It is the first two categories 
of cases in which Sec.  725.413 will change the result by requiring the 
exchange of previously undisclosed medical information.
    These commenters also assert that the Department failed to quantify 
the general impact of non-disclosure on miners' health. Doing so with 
any certainty is impractical for several reasons. By their nature, 
these cases come to light only when a party takes affirmative action to 
discover medical information; the Department cannot quantify the volume 
of undisclosed medical information in cases where parties do not pursue 
discovery of that information and, in fact, might not even know of its 
existence. The same is true in those instances where the employer has 
chosen to accept liability for the claim rather than disclosing the 
non-testifying expert's opinion. The Department also cannot assess 
whether any particular piece of medical information would have an 
impact on any one miner's course of treatment or disease. But common 
sense dictates that better-informed miners and medical providers are 
able to make better decisions regarding a miner's care.
    And, to the extent these commenters are correct in stating that, 
with very few exceptions, parties already exchange all medical 
information developed, they should not be affected by the final rule. 
Apart from a slightly earlier deadline for exchanging medical 
information, Sec.  725.413 will not change those parties' current 
practice.
    Despite the practical barriers to the suggested analysis, Congress 
was certain in its primary direction to the Department: ``[T]he first 
priority and concern of all in the coal or other mining industry must 
be the health and safety of its most precious resource--the miner.'' 30 
U.S.C. 801(a). Congress also explicitly recognized the importance of 
medical information to miners' health when it mandated medical 
screening to detect pneumoconiosis and provided that miners with 
evidence of pneumoconiosis could transfer to less-dusty areas of the 
mine site. 30 U.S.C. 843(a) (requiring underground coal mine operators 
to offer chest X-ray evaluations to miners periodically); 30 U.S.C. 
843(b) (``[A]ny miner who, in the judgment of the Secretary of Health 
and Human Services based upon [a chest X-ray] reading or other medical 
examinations, shows evidence of the development of pneumoconiosis shall 
be afforded the option of transferring from his position to another 
position in any [less-dusty] area of the mine, for such period or 
periods as may be necessary to prevent further development of such 
disease[.]''). Section 725.413 fully comports with Congress' desires.
    (f) The Department received several comments suggesting various 
clarifications and other changes to the proposed definition of 
``medical information'' at Sec.  725.413(a). As proposed, ``medical 
information'' includes medical data about a miner that was developed in 
connection with a claim for benefits (Sec.  725.413(a)) and that is: 
(1) An examining physician's assessment of the miner, including 
findings, test results, diagnoses, and conclusions (Sec.  
725.413(a)(1)); or (2) any other physician's or medical professional's 
opinion or interpretation of tests, procedures and related 
documentation, but only to the extent they address the miner's 
respiratory or pulmonary condition (Sec.  725.413(a)(2)-(4)). 80 FR 
23747, 23752. Thus, the medical data subject to disclosure is generally 
limited to data generated in the claim's litigation and relevant to the 
primary question in the claim--the miner's respiratory or pulmonary 
condition.
    (1) Two commenters express concern that proposed Sec.  725.413(a) 
does not specifically exclude a miner's medical treatment records from 
the definition of ``medical information'' subject to mandatory exchange 
between parties. As the Department explained in the NPRM, 80 FR 23747, 
treatment records are not medical data a party ``develops in connection 
with a claim'' and thus do not meet the definition of ``medical 
information.'' Instead, these records are generated in the routine 
course of a miner's treatment and, if pertinent to the miner's 
respiratory or pulmonary condition, are admissible without limitation. 
20 CFR 725.414(a)(4). But to allay any concern, the Department has 
revised Sec.  725.413 to explicitly exclude treatment records from the 
``medical information'' subject to exchange between the parties under 
this regulation. The new language is in paragraph (b)(1) of the final 
regulation.
    (2) Several commenters assert that Sec.  725.413 should exclude 
from ``medical information'' all draft medical reports. These same 
commenters also urge the Department to exclude all communications 
between a party's attorney and its medical experts. For the reasons 
that follow, the Department disagrees that draft medical reports should 
be excluded from ``medical information'' but has adopted the 
commenters' suggestion to exclude attorney communications with experts

[[Page 24473]]

from Sec.  725.413's disclosure requirements.
    To support their request for these exclusions, the commenters point 
variously to Federal Rule of Civil Procedure 26(b)(4)(B) and (C) and 
the OALJ Rules, 80 FR 28793 (May 19, 2015) (to be codified at 29 CFR 
18.51(d)), which incorporate the concepts embodied in the Federal Rule. 
When an expert is required to submit written reports or other 
disclosures, those rules protect his or her draft reports from 
discovery. Fed. R. Civ. P. 26(b)(4)(B); 80 FR 28793 (to be codified at 
29 CFR 18.51(d)(2)). Similarly, the rules generally protect from 
disclosure communications between the party's attorney and the expert 
witness except when those communications pertain to the expert's 
compensation, facts or data the attorney provided to the expert, or 
assumptions provided by the attorney to the expert that the expert 
relied on in forming his or her opinion. Fed. R. Civ. P. 26(b)(4)(C); 
80 FR 28793 (to be codified at 29 CFR 18.51(d)(3)). These rules are 
designed to allow discovery of the facts and data on which the expert 
bases his or her opinion without unnecessarily interfering with 
effective communication between the attorney and the expert or 
disclosing the attorney's mental impressions and theories about the 
case. See generally Fed. R. Civ. P. 26, Advisory Committee comment to 
2010 amendments.
    As noted above (see Section II, supra), formal rules of procedure 
do not strictly apply in black lung claims adjudications. And a 
program-specific regulation applies over either the Federal Rules or 
the OALJ Rules. 80 FR 28785, to be codified at 29 CFR 18.10 (OALJ rules 
do not apply ``[i]f a specific Department of Labor regulation 
governs[,]'' and the Federal Rules of Civil Procedure apply only in 
situations not provided for in the OALJ rules or other governing 
regulation). See also 80 FR 28773 (discussing 29 CFR 18.10 and stating 
that ``[n]othing in [the OALJ] rules would prevent the Department from 
adopting a procedural rule that applies only in BLBA claim 
adjudications or other program-specific contexts.'').
    In this instance, the Department believes a rule governing draft 
reports designed specifically for the Black Lung program will serve the 
program's purposes better than the general rule. Exempting all draft 
medical reports from Sec.  725.413's disclosure requirements could 
easily eviscerate the rule: The disclosure requirement could be avoided 
simply by labeling any medical report a ``draft.'' Any party could 
solicit additional medical opinions on the miner's condition and simply 
not share them with the opposing party, or perhaps even their remaining 
expert witnesses. If an employer engaged in that conduct, a primary 
purpose of the rule--protecting the health and safety of the miner by 
ensuring access to all information about his or her health--would be 
thwarted. And if a claimant did the same, another primary purpose of 
the rule--accurate claims adjudication--could be in jeopardy.
    On the other hand, the Department does not see a similarly 
compelling need to routinely require disclosure of communications from 
an attorney (or non-attorney representative, see 20 CFR 725.363(b)) to 
a medical expert. When prepared by an attorney, these communications 
are generally protected from disclosure, except in the circumstances 
noted above, and are more likely to include the attorney's impressions 
and legal analysis of the case. And they generally do not have a direct 
bearing on protecting the miner's health. Accordingly, the Department 
believes these communications should not be considered ``medical 
information'' subject to mandatory exchange with the other parties. The 
Department has added new language to paragraph (b)(2) in the final rule 
to exclude attorney (and non-attorney representative) communications 
from the rule's disclosure requirements. The Department notes, however, 
that the exclusion would not protect disclosure of these communications 
when otherwise ordered. See, e.g, Elm Grove Coal, 480 F.3d at 299-303. 
The rule simply does not require their exchange.
    (3) Two commenters ask the Department to revise Sec.  725.413(a) to 
include ``an exhaustive list'' of ``medical information'' that must be 
exchanged. They claim that the proposed rule does not adequately 
describe the scope of covered information. To illustrate, the 
commenters point to several examples, such as data the Social Security 
Administration considers ``health information'' (e.g., a patient's 
method of bill payment) and suggest that ``medical information'' could 
be construed to include such data.
    The Department has not added a complete list of ``medical 
information'' to the final rule. As explained, the rule expressly 
limits disclosure to medical information developed in connection with a 
claim for benefits and, with the exception of an examining physician's 
report, further limits required disclosure to data addressing the 
miner's respiratory or pulmonary condition. These two limitations serve 
to substantially narrow and define the scope of information that must 
be exchanged with opposing parties (e.g., data about a billing method 
would not meet the criteria).
    Moreover, developing an exhaustive list would not be practical 
because it could easily omit relevant medical data. Another black lung 
program regulation (20 CFR 718.107(a)) correctly countenances the 
possibility that medical testing methods other than those explicitly 
addressed in the regulations may be used to evaluate a miner's 
respiratory or pulmonary condition. See id. (allowing for admission of 
``any medically acceptable test or procedure reported by a physician 
and not addressed in this subpart, which tends to demonstrate the 
presence or absence of pneumoconiosis, the sequelae of pneumoconiosis 
or a respiratory or pulmonary impairment''). Adopting a finite list in 
Sec.  725.413 could inadvertently exclude otherwise important data, 
especially as testing methods evolve in the future.
    (4) Two commenters ask the Department to clarify whether the form 
in which the party receives the medical information (i.e., written, 
electronic, or orally) affects the duty under Sec.  725.413 to exchange 
that information. As proposed, Sec.  725.413(a)(1) and (2) require the 
parties to exchange physicians' ``written or testimonial assessment of 
the miner.'' The remainder of the rule is silent regarding the form of 
the communication. The Department agrees that the rule should be 
clarified on this point and has revised paragraph (a) in the final 
rule. With this change, the Department intends to make all written 
medical information, whether received in electronic (e.g., email, 
facsimile, Web portal or other electronic media) or hard-copy format, 
subject to Sec.  725.413's requirements. This would also include 
testimonial medical information resulting from depositions (e.g., 
transcripts of depositions). But the rule is not intended to cover oral 
communications. The Department has no mechanism to monitor oral 
communications, and compliance with such a rule would be impossible to 
enforce.
    (g) Two commenters express concern that the proposed rule does not 
adequately address the interplay between Sec.  725.413's disclosure 
requirements and Sec.  725.414's evidence-limiting provisions (which 
restrict the number of objective tests and medical reports parties may 
offer into evidence), and may lead to confusion as to whether the new 
disclosure requirements expand the amount of medical evidence a party 
may offer beyond that currently allowed under Sec.  725.414. The 
Department agrees

[[Page 24474]]

with this comment and has added a new paragraph (d) to Sec.  725.413 to 
clarify that disclosed medical information is not considered evidence 
in the claim. Section 725.413's disclosure requirements essentially 
replace traditional discovery tools. Like information gained through 
traditional discovery, medical information exchanged under Sec.  
725.413 does not automatically become a part of the record on which the 
claim's adjudication is based. Instead, only those pieces of medical 
information a party chooses to submit to the adjudicator as evidence 
are subject to Sec.  725.414's evidence-limiting rules.
    (h) On a related note, one commenter states that because district 
directors serve a dual role as a party (entitled to receive disclosed 
medical information under this rule) and an adjudicator, they could be 
confused about which pieces of exchanged medical information should be 
considered as evidence in the claim. This commenter suggests that the 
rule be revised to require private parties to disclose evidence to the 
Director only after a hearing has been requested. The Department 
disagrees with the suggested approach. District directors are skilled 
adjudicators who routinely sort through admissible and non-admissible 
pieces of medical information in issuing proposed decisions and orders. 
For example, when parties submit more evidence than allowed under the 
Sec.  725.414 evidence-limiting rules (a not infrequent occurrence), 
district directors must eliminate from consideration the evidence 
exceeding the limits when adjudicating the claim's merits. In addition, 
removing the district director from early disclosures would hamper 
their ability to administer the rule. The Department will ensure that 
district directors and their staffs receive training on the appropriate 
disposition and use of material disclosed under the rule.
    (i) Several commenters ask that attorneys (and presumably non-
attorney representatives as well) be exempt from liability for a 
client's failure to disclose medical information received by a party 
prior to the attorney's hiring. The Department concurs with this 
comment but does not believe a change in the proposed rule is 
necessary. Section 725.413(b) links the duty to exchange medical 
information to its ``receipt.'' An attorney or representative new to 
the case cannot be held responsible for the party's (or the party's 
prior representative's) failure to timely exchange the information 
because the new representative was not in ``receipt'' of the medical 
evidence prior to their entry into the case. But once the new 
representative actually receives any medical information generated 
before they entered the case--for instance, from a claimant who gives 
his or her new attorney all of the paperwork they have related to the 
claim--the representative then has a duty to ensure that the medical 
information is exchanged with the other parties within thirty days in 
accordance with Sec.  725.413(b).
    (j) Several commenters contend that the rule denies due process to 
sanctioned parties because the regulation authorizes no form of review 
for a wrongful sanctions ruling. These commenters believe that a 
sanctions ruling cannot be reviewed along with the merits of a claim 
because the ruling cannot be reversed. While the Department believes 
that normal claim procedures are sufficient to protect the rights of 
sanctioned individuals, it has clarified the review procedure by adding 
a new paragraph (e)(4) to the final rule. Under this provision, a 
sanction imposed by a district director is subject to de novo review by 
an administrative law judge. The Department has adopted this approach 
because several of the listed sanctions--such as drawing an adverse 
inference against the non-disclosing party or limiting a non-disclosing 
party's claims, defenses, or right to introduce evidence--are closely 
tied to the adjudication of a claim's merits. By statute, the 
administrative law judge has the ``authority to hear and determine all 
questions in respect of [a] claim.'' 33 U.S.C. 919(a), as incorporated 
by 30 U.S.C. 932(a). These questions would include whether the party 
had ``good cause'' for not making the required disclosure and the 
appropriateness of the sanction chosen. Any administrative law judge's 
order resulting in a final disposition of the claim would be subject to 
immediate appeal to the Benefits Review Board, followed by appeal to an 
appropriate court of appeals. 33 U.S.C. 921(a), (c), as incorporated by 
30 U.S.C. 932(a). And in the absence of a final claim disposition, a 
sanctioned party could choose to immediately appeal an order imposing 
sanctions to the Board, whose precedent allows it to accept such 
interlocutory appeals merely to direct the course of the adjudicatory 
process. See Niazy v. Capital Hilton Hotel, 19 BRBS 266, 269 (1987).
    (k) No other significant comments were received concerning this 
section, and the Department has promulgated the remainder of the 
regulation as proposed.
20 CFR 725.414 Development of Evidence
    (a)(1) The Department proposed revising Sec.  725.414, which 
imposes limitations on the quantity of medical evidence each party may 
submit in a black lung claim. 20 CFR 725.414. Sections 725.414(a)(2) 
and (a)(3) allow each party to submit ``no more than two medical 
reports'' in support of its affirmative case. 20 CFR 725.414(a)(2)-(3). 
The current rule defines a ``medical report'' as a ``written assessment 
of the miner's respiratory or pulmonary condition'' that ``may be 
prepared by a physician who examined the miner and/or reviewed the 
available admissible evidence.'' 20 CFR 725.414(a)(1).
    This definition of ``medical report'' at times created confusion 
over whether supplemental reports offered by a physician whose initial 
opinion had already been entered into evidence counted against the 
parties' two-report limit. 80 FR 23747. Parties obtain supplemental 
reports when they ask a physician to update his or her initial report 
by reviewing additional material, such as medical testing results or 
other physicians' opinions. To eliminate this confusion, the Department 
proposed revising the definition of a ``medical report'' to codify the 
Director's longstanding position that a physician's supplemental report 
is ``merely a continuation of the physician's original medical report 
for purposes of the evidence-limiting rules and do[es] not count 
against the party as a second medical report.'' 80 FR 23747. The 
Department noted that the proposed definition was consistent with the 
regulatory provision allowing physicians to review (either in a written 
report or oral testimony) the other admissible evidence, and a cost-
effective means of providing medical-opinion evidence given the 
practical realities of black lung claims litigation. 80 FR 23747-48.
    (2) Three commenters support the proposed rule as written. Four 
other commenters state general support for the rule, but question how a 
physician's supplemental medical report would be treated in a 
modification proceeding. See generally 20 CFR 725.310. Specifically, 
these commenters express concern over allowing physicians who submitted 
reports in the initial proceeding to submit supplemental reports on 
modification without those reports being counted against the party's 
evidentiary limits. The commenters believe this practice could lead to 
the development of limitless evidence, thwarting the purpose of the 
evidence-limiting rules.

[[Page 24475]]

    (3) The Department does not believe this comment warrants a change 
in the proposed rule. In a modification proceeding, the regulations 
allow each party to submit one additional medical report in support of 
its affirmative case. 20 CFR 725.310(b). This provision supplements the 
limitations contained in Sec.  725.414(a); thus, during modification, a 
party may submit up to the two medical reports allowed under Sec.  
725.414(a), if they were not submitted during the original claim 
proceedings, plus one additional medical report, for a total of three. 
Rose v. Buffalo Mining Co., 23 Black Lung Rep. 1-221, 1-226-28 (Ben. 
Rev. Bd. 2007).
    Considering a physician's supplemental report as an extension of 
his or her original report is consistent with the Department's 
longstanding position that modification proceedings are a continuation 
of the initial claim. See Betty B Coal Co. v. Dir., OWCP, 194 F.3d 491, 
498 (4th Cir. 1999). Moreover, this conclusion logically flows from a 
party's right to submit evidence not submitted during the initial claim 
proceedings to the extent allowed under Sec.  725.414(a). Rose, 23 BLR 
at 1-227-28. Because a supplemental report could have been submitted 
during the initial proceedings without counting against the party, it 
is reasonable to allow the same accommodation during modification.
    Finally, the regulations provide that a physician who submits a 
report during the initial proceedings could testify at hearing or by 
deposition during modification proceedings, without it counting against 
the party for purposes of the evidence-limiting rules. See 20 CFR 
725.414(c) (``A physician who prepared a medical report admitted under 
this section may testify with respect to the claim at any formal 
hearing conducted in accordance with subpart F of this part, or by 
deposition.''). A testifying physician may address any admissible 
medical evidence submitted in the claim. See 20 CFR 725.457(d); 
725.458. Thus, it makes little sense not to allow supplemental reports 
if a party could achieve the same result by having its physician 
testify during modification proceedings. See 80 FR 23748. Allowing 
submission of a written report is also consistent with the nature of 
black lung proceedings, where such reports are freely admissible.
    The commenters' claim that this interpretation would result in 
limitless evidentiary development is overstated. Allowing supplemental 
reports from physicians whose opinions were admitted in the initial 
claim proceeding does not increase the number of physicians who may 
evaluate the miner's condition. As explained, that total remains at a 
maximum of three for each party in a modification proceeding. And 
development of supplemental reports in an undisciplined or unreasonable 
way is naturally constrained by other regulations. For example, 
physicians may review only admissible evidence, 20 CFR 725.414(a)(1), 
and the amount of admissible evidence overall is limited. See 20 CFR 
725.414(a)(2)-(3). The limited number of test results, such as chest X-
ray reports and pulmonary function tests, each party may submit 
restricts the number of supplemental reports necessary to review and 
comment on those tests.
    (b)(1) The Department proposed a separate revision to Sec.  
725.414(a)(3)(iii). Currently, this provision authorizes the Director 
to exercise the rights of a responsible operator for the purposes of 
the evidence limitations only if: (1) The district director has not 
identified a potentially liable operator; or (2) all potentially liable 
operators have been dismissed. The Department proposed adding a third 
provision that would allow the Director to submit medical evidence, up 
to the limits allowed a responsible operator under the evidence-
limiting rules, when the identified responsible operator stops 
defending a claim during the course of litigation because of adverse 
financial developments, such as bankruptcy or insolvency. 80 FR 23753.
    The Department proposed this change because the current rule does 
not adequately protect the Trust Fund against unmeritorious claims in 
these circumstances. 80 FR 23748. Where an identified responsible 
operator ceases to defend a claim in litigation due to adverse 
financial developments, the current rule limits the Director's 
submissions to only the complete pulmonary evaluation that the 
Department gives to every miner as an opportunity to substantiate his 
or her claim. See generally 30 U.S.C. 923(b); 20 CFR 725.406, 
725.414(a). This is true even though the Trust Fund may ultimately be 
liable for any benefits awarded. The proposed rule would give the 
Director the same rights to defend against a claim as if there were no 
responsible operator in the case. This means that in a miner's claim, 
the Director could submit as part of his affirmative case one medical 
opinion and set of testing in addition to the complete pulmonary 
examination afforded every miner who applies for benefits. See 20 CFR 
725.414(a)(3)(iii).
    (2) Two commenters support the rule as proposed. Several other 
commenters state that the rule needs clarification. The latter 
commenters agree that the Director should be able to defend 
unmeritorious claims in these circumstances, but only if the district 
director initially denied the claim. In cases initially awarded by the 
district director, the commenters express concern that the Director may 
use medical evidence previously developed by the no-longer-defending 
operator. They believe this would be improper for two reasons: (1) The 
Director would be impeaching his own witness (i.e., the physician who 
performed the Department-sponsored medical evaluation and whose opinion 
most likely supported the initial benefits award) with operator-
generated evidence, and challenging the award at a later stage would 
call into question the district director's role as a neutral 
adjudicator; and (2) medical opinions generated by operators virtually 
always express views contrary to the BLBA, the implementing 
regulations, and science. The commenters further allege, without 
examples, that whether the district director initially awards or denies 
the claim, a conflict of interest arises should the Director later 
decide to defend a claim because earlier routine communications between 
the claimant and the district director could be used against the 
claimant. For the reasons that follow, the Department does not believe 
any changes should be made in the proposed rule based on these 
comments.
    First, the Director is not obligated to continue to advocate for an 
award of benefits once that award has been proven by later evidence or 
an intervening adjudication to be incorrect. Hardisty v. Dir., OWCP, 
776 F.2d 129, 130 (7th Cir. 1985) (Director not bound by initial award 
of benefits in later proceedings after liability transferred from the 
responsible operator to the Trust Fund); Pavesi v. Dir., OWCP, 758 F.2d 
956, 960 (3d Cir. 1985) (Director has obligation to protect Trust Fund 
and is not bound by district director's initial award of benefits). See 
also Cornett v. Benham Coal, Inc., 227 F.3d 569, 573 n.2 (6th Cir. 
2000) (in litigation of claim, Director may take a position contrary to 
district director's initial finding that claim should be denied). This 
approach makes sense both because the Director has a fiduciary duty to 
protect the Trust Fund against unmeritorious claims, see, e.g., Dir., 
OWCP v. Hileman, 897 F.2d 1277, 1281 n.2 (4th Cir. 1990), and later 
contrary evidence could prove more probative. For example, a district 
director could award benefits based on X-ray evidence of complicated 
pneumoconiosis (also known as

[[Page 24476]]

progressive massive fibrosis) when a later autopsy report affirmatively 
demonstrates that the miner did not have that form of the disease. The 
reverse could also occur (i.e., the district director denied the claim 
and an autopsy shows the miner suffered from complicated 
pneumoconiosis), compelling the Director to argue for an award of 
benefits. Neither scenario calls into question the district director's 
neutrality in adjudicating the claim based on the evidence before him 
or her.
    Second, the commenters' fear that the Director would rely on 
operator-generated medical opinions that are contrary to the BLBA, the 
regulations or science overlooks the Director's longstanding, 
consistent history arguing for rejection of these problematic medical 
opinions. See, e.g., Harman Mining Co. v. Dir., OWCP, 678 F.3d 305, 
314-16 (4th Cir. 2012) (endorsing the Director's argument that a 
physician's opinion was permissibly considered less persuasive when the 
physician's views conflicted with the Department's rationale for 
amending the regulations); Sea ``B'' Mining Co. v. Dunford, 188 F. 
App'x 191, 199 (4th Cir. 2006) (agreeing with the Director that 
operator's physician's opinion was based on two premises that are 
hostile to the Act and thus appropriately discredited); Hunt v. 
Kentland Elkhorn Coal Corp., 159 F. App'x 659, 661-62 (6th Cir. 2005) 
(the Director argued that operator's physicians' opinions must be 
rejected because both were based on premises inconsistent with the 
Act); Penn Allegheny Coal Co. v. Mercatell, 878 F.2d 106, 109-10 (3d 
Cir. 1989) (agreeing with the Director that the ALJ reasonably 
discredited physician's opinion based on premises ``fundamentally at 
odds with the statutory and regulatory scheme''); Black Diamond Coal 
Mining Co. v. Benefits Review Board, 758 F.2d 1532 (11th Cir. 1985) 
(Director supported ALJ discounting testimony of a doctor as 
inconsistent with the Act when that physician stated that he would not 
diagnose pneumoconiosis in the absence of positive x-rays); Kaiser 
Steel Corp. v. Dir., OWCP, 748 F.2d 1426 (10th Cir. 1984) (Director 
argued that the ALJ had properly discredited as contrary to the 
findings and purposes of the Act the opinion of a physician who stated 
coal workers' pneumoconiosis was never impairing).
    The Director does not intend to alter this policy. In each case--
whether the claim was awarded or denied by the district director--the 
Director will evaluate any medical opinion evidence developed by the 
defunct operator and reject any evidence inconsistent with the BLBA, 
the regulations and supporting preambles. This is the same process the 
Director engages in now when an operator ceases to exist and liability 
for a claim in litigation is transferred to the Trust Fund.
    Third, the allegation that routine information exchanged between 
the district director and the claimant could later be used to defeat 
the claim is unfounded. By statute, the Department wears two hats in 
black lung cases, with district directors conducting initial 
adjudications and the Secretary, represented by the Director, 
participating as a party-in-interest in all later proceedings. See 
generally 33 U.S.C. 919, as incorporated by 30 U.S.C. 932(a) (providing 
for district director determinations) and 30 U.S.C. 932(k) (making the 
Secretary a party in all cases). The district director receives claim 
filings, gathers factual information about the miner's employment 
history and dependents, and, in claims filed by a miner, arranges for a 
complete pulmonary examination. Based on this information and any 
evidence submitted by the parties, the district director proposes an 
initial entitlement decision. Findings made by the district director 
are not binding on an administrative law judge, who conducts an 
independent de novo review of the claim. See 20 CFR 725.455(a) (In 
general, ``any findings or determinations made with respect to a claim 
by a district director shall not be considered by the administrative 
law judge'').
    Given the de novo nature of the administrative law judge's 
adjudication, it is difficult to see how communications between the 
district director and the claimant could adversely impact the claimant. 
More importantly, for more than three decades the Director has defended 
proposed district director denials of benefits in claims for which the 
Trust Fund bears direct liability. See 26 U.S.C. 9501(d)(1)(B) (amounts 
in Trust Fund available to pay benefits when there is no liable 
operator). In these claims, the district director conducted an initial 
adjudication and the Director routinely participated in further 
proceedings, advocating for a denial of benefits unless the evidence 
demonstrated that the claimant was entitled to benefits. To the 
Department's knowledge, the Director has not used communications made 
between the claimant and the district director in a manner adverse to 
the claimant. And the commenters have pointed to no such instances.
    Finally, the Department disagrees with one commenter's suggestion 
that operators be required to certify the reason for their inability to 
pay continuing benefits. Requiring certification from a bankrupt or 
insolvent operator would place too high an administrative burden on the 
Department. In some instances, locating a person who could act on the 
defunct operator's behalf may be impossible. And, even assuming the 
operator continues to exist in some form, an operator lacking financial 
capacity to pay benefits has little incentive to respond to a 
certification request. The rule, and the protection it affords the 
Trust Fund, would be rendered useless if an operator either failed or 
simply refused to supply any required certification.
    (c) No other significant comments were received concerning this 
section, and the Department has promulgated Sec.  725.414 as proposed.
20 CFR 725.601 Enforcement Generally
    (a) Currently, Sec.  725.601(b) refers to ``payments in addition to 
compensation'' and cross references Sec.  725.607. The proposed rule 
replaced this phrase with ``payments of additional compensation.'' 80 
FR 23753. The Department intended this to be a technical change, 
unifying this language with a simultaneously proposed change to Sec.  
725.607. 80 FR 23748.
    (b) One commenter objected, contending that the wording change is 
substantive and would impose unauthorized penalties on operators. The 
Department disagrees with this comment. The change to this rule is 
technical in nature and, as stated in the NPRM, no substantive change 
is intended. Id. For this reason, as well as the reasons set forth in 
the discussion under Sec.  725.607, the Department is promulgating this 
rule as proposed.
20 CFR 725.607 Payments in Addition to Compensation
    (a) Section 725.607 implements section 14(f) of the Longshore Act, 
an incorporated provision. 33 U.S.C. 914(f), as incorporated by 30 
U.S.C. 932(a). Section 14(f) generally provides that claimants are 
entitled to receive from a liable coal mine operator 20 percent of any 
compensation owed under the terms of an award that is not paid within 
ten days of the date payment is due. By regulation, payment is due ``on 
the fifteenth day of the month following the month for which the 
benefits are payable.'' 20 CFR 725.502(b)(1); see also 20 CFR 
725.502(a). The operator is liable for the 20 percent amount even if 
the Trust Fund pays ongoing benefits to the claimant on an interim 
basis. 20 CFR 725.607(b).

[[Page 24477]]

    The Department proposed revising both the title of Sec.  725.607 
and the text of paragraph (c) by replacing the phrase ``payments in 
addition to compensation'' with the phrase ``payments of additional 
compensation.'' 80 FR 23853-54. As explained in the NPRM, 80 FR 23748-
49, section 725.607(b) uses the phrase ``additional compensation,'' and 
conforming the title and paragraph (c) to that language adds clarity to 
the regulation and ``eliminate[s] any possibility that the regulation's 
phrasing could confuse readers.'' 80 FR 23749; see also 20 CFR 
725.530(a) (cross-referencing Sec.  725.607 and describing potential 
operator liabilities as including ``additional compensation''). The 
phrase ``additional compensation'' reflects the Director's view, as 
well as the view of the majority of courts that have considered the 
issue, that payments made under Longshore Act section 14(f) are 
compensation rather than penalties. 80 FR 23748.
    (b) Four commenters contend that the proposed revisions to the 
title and paragraph (c) impose new and unauthorized penalties on 
operators. Although these commenters concede that section 14(f) is 
incorporated into the BLBA, they challenge application of the provision 
to the BLBA program.
    Using the phrase ``additional compensation'' consistently 
throughout the regulations does not impose any new or unauthorized 
penalties on operators. The Department has had a regulation 
interpreting and applying section 14(f)'s 20 percent additional 
compensation provision to unpaid black lung benefits since 1978. See 43 
FR 36814-15 (Aug. 18, 1978). Clarifying the language neither adds a new 
provision nor alters the character of the 20 percent additional 
compensation payment to a penalty. The Department is therefore 
promulgating the rule as proposed.

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

    The Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et seq., 
and its implementing regulations, 5 CFR part 1320, require that the 
Department consider the impact of paperwork and other information 
collection burdens imposed on the public. A Federal agency generally 
cannot conduct or sponsor a collection of information, and the public 
is generally not required to respond to an information collection, 
unless it is approved by the Office of Management and Budget (OMB) 
under the PRA and displays a currently valid OMB Control Number. In 
addition, notwithstanding any other provisions of law, no person may 
generally be subject to penalty for failing to comply with a collection 
of information that does not display a valid Control Number. See 5 CFR 
1320.5(a) and 1320.6.
    In the NPRM, the Department noted that proposed Sec.  725.413, 
which, as discussed above, requires parties to exchange certain medical 
information, could be considered a collection of information within the 
meaning of the PRA. 80 FR 23749. Accordingly, the Department submitted 
an Information Collection Request (ICR) to OMB for approval. See ICR 
Reference Number 201504-1240-002. The NPRM specifically invited 
comments regarding the information collection and notified the public 
of their opportunity to file such comments with both OMB and the 
Department. 80 FR 23749. On July 24, 2015, OMB concluded its review of 
the ICR by asking the Department to submit another ICR at the final 
rule stage and after considering any public comments regarding the 
information collection requirements in the rule.
    The Department received comments on the substance of proposed Sec.  
725.413; these comments are fully addressed in the Section-by-Section 
Explanation above. The Department received no comments about the 
information collection burdens. The Department has submitted an ICR to 
OMB for the information collection in this final rule. See ICR 
Reference Number 201511-1240-003. A copy of this request (including 
supporting documentation) may be obtained free of charge from the 
Reginfo.gov Web site at http://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=201511-1240-003, or by contacting Michael Chance, 
Director, Division of Coal Mine Workers' Compensation, Office of 
Workers' Compensation Programs, U.S. Department of Labor, 200 
Constitution Avenue NW., Suite N-3464, Washington, DC 20210. Telephone: 
(202) 693-0978 (this is not a toll-free number). TTY/TDD callers may 
dial toll-free 1-800-877-8339. OMB is currently reviewing the ICR. The 
Department will publish a notice in the Federal Register when OMB 
concludes its review of the ICR.
    The information collection and its burdens are summarized as 
follows:
    Agency: DOL-OWCP.
    Title of Collection: Disclosure of Medical Information.
    OMB Control Number: 1240-0054.
    Affected Public: Private Sector: Businesses and other for-profits.
    Total Estimated Number of Respondents: 4,074.
    Total Estimated Number of Responses: 4,074.
    Total Estimated Annual Time Burden: 679 hours.
    Total Estimated Annual Other Costs Burden: $6,681.

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). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. The Department has considered the final rule with these 
principles in mind and has determined that the regulated community will 
benefit from these new and revised regulations.
    The Department addressed these issues in the NPRM. 80 FR 23749-50. 
With regard to Sec.  725.310(e), which requires operators to pay 
effective awards of benefits while seeking to modify them, the 
Department stated that the proposed rule was ``cost neutral'' because 
it merely enforced operators' existing legal obligations under the Act. 
80 FR 23749. The Department also noted that even if Sec.  725.310(e) 
were construed as imposing a new obligation, any additional costs would 
not be burdensome because operators must reimburse the Trust Fund (with 
interest) when unsuccessful on modification, operators are not often 
successful on modification, and if successful, operators may seek 
reimbursement from the claimant for at least some of the benefits paid. 
80 FR 23750. Apart from the potential monetary impact, the Department 
determined that Sec.  725.310(e) struck an appropriate balance between 
claimants, who are made whole under the rule, and operators, who may 
seek a stay of payments if they would be irreparably harmed by making 
them. 80 FR 23750.
    The Department similarly concluded that the benefits of Sec.  
725.413, which requires the parties to exchange all medical information 
they develop in connection with a claim, far outweighed any minimal 
administrative burden the rule might place on parties. 80 FR 23750. 
These benefits include protecting miners' health and reaching more 
accurate claims determinations. The Department also noted that the rule 
may not have broad impact because parties often already exchanged all 
of the

[[Page 24478]]

medical information in their possession. Id.
    The Department has considered the final rule with these principles 
in mind and has determined that the regulated community will benefit 
from these new and revised regulations. One comment, in which four 
entities joined, generally criticized the Department for not 
demonstrating why these rule revisions were necessary. The comment 
states that the Department provided no empirical data to support them 
and instead cited only unrepresentative anecdotes documenting mostly 
non-existent problems that do not accurately characterize how black 
lung claims are handled. The comment also alludes generally to 
significant expenses imposed on coal mine operators and their insurers 
by the Department but provides no specific information regarding how 
these rules in particular impose increased costs. In addition to these 
general allegations, this comment states that the Department did not 
conduct an empirical review of the impact of Sec.  725.310 and did not 
adequately consider the actual impact Sec.  725.413 would have on 
miners' health.
    The Department does not believe this comment compels a different 
conclusion regarding the benefits of this rulemaking. The Department 
has administered the black lung program for more than three decades and 
been a party in hundreds of thousands of claims. As a result, the 
Department is intimately familiar with how black lung claims are 
litigated by all parties. To further illustrate that Sec. Sec.  
725.310(e) and 725.413 respond to non-illusory problems, the Department 
has added additional representative case examples in the Section-by-
Section Explanation above (see Section III, supra). While these 
modification and discovery issues do not arise in every case, they 
arise frequently enough--and can have sufficiently important 
consequences when they do arise--that resolution by regulatory action 
is appropriate.
    On the more specific comments, Sec.  725.310(e), as discussed above 
(see Section III, supra), enforces an existing legal obligation imposed 
on operators by the statute and implementing regulations. Absent a stay 
of payments ordered by the Benefits Review Board or a court, operators 
are obligated to pay effective benefits awards, regardless of any other 
proceedings in the claim. The statute and regulations already mandate 
that any associated economic burden be borne by operators rather than 
the Trust Fund. The only new burden the rule places on operators is to 
demonstrate that they have complied with the relevant orders. For 
operators that are in compliance, this showing will not be difficult. 
This minimal burden does not outweigh the Department's duty to ensure 
that claimants receive all benefits when due and to protect the Trust 
Fund's assets.
    Similarly, the benefits associated with Sec.  725.413 far outweigh 
any additional minimal burden the regulation will impose on the 
parties. For the reasons explained above (see Section III, supra), the 
Department cannot quantify the actual impact of non-disclosure of 
medical information on miners' health with any certainty. But the rule 
is fully consistent with the Mine Safety and Health Act's prime 
directive: To protect the health and safety of the miner. Section 
725.413 also affords unrepresented claimants an even playing field when 
litigating their claims and increases the possibility of more accurate 
entitlement determinations. Balanced against these important interests 
is the minimal administrative burden of exchanging all medical 
information a party develops about the miner with the other parties, a 
practice several objecting commenters state the parties have routinely 
followed in all but a few instances. Thus, to the extent Sec.  725.413 
mandates such practice, the impact on the parties should be very small.
    Finally, one comment stated that several parts of the proposed 
rules violated the various directions in Executive Orders 12866 and 
13563 that rules be clear and written in plain language. The Department 
has responded to these comments in discussing the substance of each 
rule in the Section-by-Section Explanation above.
    This rule is a significant regulatory action under section 3(f)(4) 
of Executive Order 12866 and has been reviewed by the Office of 
Information and Regulatory Affairs in the Office of Management and 
Budget.

VI. 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 evaluate the potential impacts of 
their proposed and final rules on small businesses, small 
organizations, and small governmental jurisdictions and to prepare a 
``regulatory flexibility analysis'' describing those impacts. But if 
the rule is not expected to have ``a significant economic impact on a 
substantial number of small entities,'' the RFA allows the agency to so 
certify in lieu of preparing the analysis. 5 U.S.C. 605(b).
    In the NPRM, the Department determined that a complete regulatory 
flexibility analysis was not necessary, set forth the factual basis for 
this conclusion, and certified that the revised rule would not have a 
significant economic impact on a substantial number of small entities. 
80 FR 23750. The Department provided a copy of that certification to 
the Chief Counsel for Advocacy of the Small Business Administration, 
see 5 U.S.C. 605(b), and invited public comment on the certification.
    The Chief Counsel for Advocacy has not filed comments on the 
certification. Moreover, no public comments address any adverse 
economic impacts this rule will have on small coal mine operators. 
Because the comments do not provide a basis for departing from its 
prior conclusion, the Department again certifies that this rule will 
not have a significant economic impact on a substantial number of small 
entities. Thus, no regulatory flexibility analysis is required.

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. Executive Order 13132 (Federalism)

    The Department has reviewed this rule in accordance with Executive 
Order 13132 regarding federalism, and has determined that it does not 
have ``federalism implications.'' Executive Order 13132, 64 FR 43255, 
Aug. 4, 1999. The 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.

IX. Executive Order 12988 (Civil Justice Reform)

    This rule was drafted and reviewed in accordance with Executive 
Order 12988,

[[Page 24479]]

Civil Justice Reform, and it will not unduly burden the Federal court 
system. The final rule was: (1) Carefully reviewed to eliminate 
drafting errors and ambiguities; (2) written to minimize litigation; 
and (3) provides clear legal standards for affected conduct. The rule 
also specifies when its provisions apply.

X. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a report, which includes a copy of the rule, to 
each House of the Congress and to the Comptroller General of the United 
States. OWCP will report this rule's promulgation to the U.S. Senate, 
the U.S. House of Representatives, and the Comptroller General of the 
United States simultaneously with publication of the rule in the 
Federal Register. The report will state that the rule is not a ``major 
rule'' as defined by 5 U.S.C. 804(2).

List of Subjects in 20 CFR Part 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 part 725 as follows:

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

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

    Authority:  5 U.S.C. 301; Reorganization Plan No. 6 of 1950, 15 
FR 3174; 30 U.S.C. 901 et seq., 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. In Sec.  725.310, revise paragraphs (b), (c) and (d) and add 
paragraph (e) to read as follows:


Sec.  725.310  Modification of awards and denials.

* * * * *
    (b) Modification proceedings must be conducted in accordance with 
the provisions of this part as appropriate, except that the claimant 
and the operator, or group of operators or the fund, as appropriate, 
are each entitled to submit no more than one additional chest X-ray 
interpretation, one additional pulmonary function test, one additional 
arterial blood gas study, and one additional medical report in support 
of its affirmative case along with such rebuttal evidence and 
additional statements as are authorized by paragraphs (a)(2)(ii) and 
(a)(3)(ii) of Sec.  725.414. Modification proceedings may not be 
initiated before an administrative law judge or the Benefits Review 
Board.
    (c) At the conclusion of modification proceedings before the 
district director, the district director may issue a proposed decision 
and order (Sec.  725.418) or, if appropriate, deny the claim by reason 
of abandonment (Sec.  725.409). In any case in which the district 
director has initiated modification proceedings on his own initiative 
to alter the terms of an award or denial of benefits issued by an 
administrative law judge, the district director must, at the conclusion 
of modification proceedings, forward the claim for a hearing (Sec.  
725.421). In any case forwarded for a hearing, the administrative law 
judge assigned to hear such case must consider whether any additional 
evidence submitted by the parties demonstrates a change in condition 
and, regardless of whether the parties have submitted new evidence, 
whether the evidence of record demonstrates a mistake in a 
determination of fact.
    (d) An order issued following the conclusion of modification 
proceedings may terminate, continue, reinstate, increase or decrease 
benefit payments or award benefits. Such order must not affect any 
benefits previously paid, except that an order increasing the amount of 
benefits payable based on a finding of a mistake in a determination of 
fact may be made effective on the date from which benefits were 
determined payable by the terms of an earlier award. In the case of an 
award which is decreased, no payment made in excess of the decreased 
rate prior to the date upon which the party requested reconsideration 
under paragraph (a) of this section will be subject to collection or 
offset under subpart H of this part, provided the claimant is without 
fault as defined by Sec.  725.543. In the case of an award which is 
decreased following the initiation of modification by the district 
director, no payment made in excess of the decreased rate prior to the 
date upon which the district director initiated modification 
proceedings under paragraph (a) will be subject to collection or offset 
under subpart H of this part, provided the claimant is without fault as 
defined by Sec.  725.543. In the case of an award which has become 
final and is thereafter terminated, no payment made prior to the date 
upon which the party requested reconsideration under paragraph (a) will 
be subject to collection or offset under subpart H of this part. In the 
case of an award which has become final and is thereafter terminated 
following the initiation of modification by the district director, no 
payment made prior to the date upon which the district director 
initiated modification proceedings under paragraph (a) will be subject 
to collection or offset under subpart H of this part.
    (e)(1) In this paragraph, an order is ``effective'' as described in 
Sec.  725.502(a) and ``final'' as described in Sec. Sec.  725.419(d), 
725.479(a) or 802.406.
    (2) Any modification request by an operator must be denied unless 
the operator proves that at the time of the request, the operator has:
    (i) Paid to the claimant all monetary benefits, including 
retroactive benefits and interest under Sec.  725.502(b)(2), due under 
any effective order;
    (ii) Paid to the claimant all additional compensation (see Sec.  
725.607) due under an effective order;
    (iii) Paid all medical benefits (see Sec.  725.701 et seq.) due 
under any effective award, but only if the order awards payment of 
specific medical expenses;
    (iv) Paid all final orders awarding attorney's fees and expenses 
under Sec.  725.367 and witness fees under Sec.  725.459, but only if 
the underlying benefits order is final (see Sec.  725.367(b)); and
    (v) Reimbursed the Black Lung Disability Trust Fund, with interest, 
for all benefits paid under the orders described in paragraphs 
(e)(2)(i) or (iii) of this section and the costs for the medical 
examination under Sec.  725.406.
    (3) The requirements of paragraph (e)(2) of this section are 
inapplicable to any benefits owed pursuant to an effective but non-
final order if the payment of such benefits has been stayed by the 
Benefits Review Board or appropriate court under 33 U.S.C. 921.
    (4) Except as provided by paragraph (e)(5) of this section, the 
operator must submit all documentary evidence pertaining to its 
compliance with the requirements of paragraph (e)(2) of this section to 
the district director concurrently with its request for modification. 
The claimant is also entitled to submit any relevant evidence to the 
district director. Absent extraordinary circumstances, no documentary 
evidence pertaining to the operator's compliance with the requirements 
of paragraph (e)(2) at the time of the modification request will be 
admitted into the hearing record or otherwise considered at any later 
stage of the proceeding.
    (5) The requirements imposed by paragraph (e)(2) of this section 
are continuing in nature. If at any time

[[Page 24480]]

during the modification proceedings the operator fails to meet the 
payment obligations described, the adjudication officer must issue an 
order to show cause why the operator's modification request should not 
be denied and afford all parties time to respond to such order. 
Responses may include evidence pertaining to the operator's continued 
compliance with the requirements of paragraph (e)(2). If, after the 
time for response has expired, the adjudication officer determines that 
the operator is not meeting its obligations, the adjudication officer 
must deny the operator's modification request.
    (6) The denial of a request for modification under this section 
will not bar any future modification request by the operator, so long 
as the operator satisfies the requirements of paragraph (e)(2) of this 
section with each future modification petition.
    (7) The provisions of this paragraph apply to all modification 
requests filed on or after May 26, 2016.

0
3. Add Sec.  725.413 to subpart E to read as follows:


Sec.  725.413  Disclosure of medical information.

    (a) For purposes of this section, medical information is any 
written medical data, including data in electronic format, about the 
miner that a party develops in connection with a claim for benefits, 
including medical data developed with any prior claim that has not been 
disclosed previously to the other parties. Medical information 
includes, but is not limited to--
    (1) Any examining physician's written or testimonial assessment of 
the miner, including the examiner's findings, diagnoses, conclusions, 
and the results of any tests;
    (2) Any other physician's written or testimonial assessment of the 
miner's respiratory or pulmonary condition;
    (3) The results of any test or procedure related to the miner's 
respiratory or pulmonary condition, including any information relevant 
to the test or procedure's administration; and
    (4) Any physician's or other medical professional's interpretation 
of the results of any test or procedure related to the miner's 
respiratory or pulmonary condition.
    (b) For purposes of this section, medical information does not 
include--
    (1) Any record of a miner's hospitalization or other medical 
treatment; or
    (2) Communications from a party's representative to a medical 
expert.
    (c) Each party must disclose medical information the party or the 
party's agent receives by sending a complete copy of the information to 
all other parties in the claim within 30 days after receipt. If the 
information is received after the claim is already scheduled for 
hearing before an administrative law judge, the disclosure must be made 
at least 20 days before the scheduled hearing is held (see Sec.  
725.456(b)).
    (d) Medical information disclosed under this section must not be 
considered in adjudicating any claim unless a party designates the 
information as evidence in the claim.
    (e) At the request of any party or on his or her own motion, an 
adjudication officer may impose sanctions on any party or his or her 
representative who fails to timely disclose medical information in 
compliance with this section.
    (1) Sanctions must be appropriate to the circumstances and may only 
be imposed after giving the party an opportunity to demonstrate good 
cause why disclosure was not made and sanctions are not warranted. In 
determining an appropriate sanction, the adjudication officer must 
consider--
    (i) Whether the sanction should be mitigated because the party was 
not represented by an attorney when the information should have been 
disclosed; and
    (ii) Whether the party should not be sanctioned because the failure 
to disclose was attributable solely to the party's attorney.
    (2) Sanctions may include, but are not limited to--
    (i) Drawing an adverse inference against the non-disclosing party 
on the facts relevant to the disclosure;
    (ii) Limiting the non-disclosing party's claims, defenses or right 
to introduce evidence;
    (iii) Dismissing the claim proceeding if the non-disclosing party 
is the claimant and no payments prior to final adjudication have been 
made to the claimant unless the Director agrees to the dismissal in 
writing (see Sec.  725.465(d));
    (iv) Rendering a default decision against the non-disclosing party;
    (v) Disqualifying the non-disclosing party's attorney from further 
participation in the claim proceedings; and
    (vi) Relieving a claimant who files a subsequent claim from the 
impact of Sec.  725.309(c)(6) if the non-disclosed evidence predates 
the denial of the prior claim and the non-disclosing party is the 
operator.
    (3) Sanctions must not include--
    (i) Fines or
    (ii) Imprisonment.
    (4) Sanctions imposed by a district director are subject to review 
by an administrative law judge in accordance with the provisions of 
this part.
    (f) This rule applies to--
    (1) All claims filed after May 26, 2016;
    (2) Pending claims not yet adjudicated by an administrative law 
judge, except that medical information received prior to May 26, 2016 
and not previously disclosed must be provided to the other parties 
within 60 days of May 26, 2016; and
    (3) Pending claims already adjudicated by an administrative law 
judge where--
    (i) The administrative law judge reopens the record for receipt of 
additional evidence in response to a timely reconsideration motion (see 
Sec.  725.479(b)) or after remand by the Benefits Review Board or a 
reviewing court; or
    (ii) A party requests modification of the award or denial of 
benefits (see Sec.  725.310(a)).

0
4. In Sec.  725.414, revise paragraphs (a)(1) through (5), (c), and (d) 
to read as follows:


Sec.  725.414  Development of evidence.

    (a) * * *
    (1) For purposes of this section, a medical report is a physician's 
written assessment of the miner's respiratory or pulmonary condition. A 
medical report may be prepared by a physician who examined the miner 
and/or reviewed the available admissible evidence. Supplemental medical 
reports prepared by the same physician must be considered part of the 
physician's original medical report. A physician's written assessment 
of a single objective test, such as a chest X-ray or a pulmonary 
function test, is not a medical report for purposes of this section.
    (2)(i) The claimant is entitled to submit, in support of his 
affirmative case, no more than two chest X-ray interpretations, the 
results of no more than two pulmonary function tests, the results of no 
more than two arterial blood gas studies, no more than one report of an 
autopsy, no more than one report of each biopsy, and no more than two 
medical reports. Any chest X-ray interpretations, pulmonary function 
test results, blood gas studies, autopsy report, biopsy report, and 
physicians' opinions that appear in a medical report must each be 
admissible under this paragraph or paragraph (a)(4) of this section.
    (ii) The claimant is entitled to submit, in rebuttal of the case 
presented by the party opposing entitlement, no more than one 
physician's interpretation of each chest X-ray, pulmonary function 
test, arterial blood gas study, autopsy or

[[Page 24481]]

biopsy submitted by the designated responsible operator or the fund, as 
appropriate, under paragraph (a)(3)(i) or (a)(3)(iii) of this section 
and by the Director pursuant to Sec.  725.406. In any case in which the 
party opposing entitlement has submitted the results of other testing 
pursuant to Sec.  718.107, the claimant is entitled to submit one 
physician's assessment of each piece of such evidence in rebuttal. In 
addition, where the responsible operator or fund has submitted rebuttal 
evidence under paragraph (a)(3)(ii) or (a)(3)(iii) of this section with 
respect to medical testing submitted by the claimant, the claimant is 
entitled to submit an additional statement from the physician who 
originally interpreted the chest X-ray or administered the objective 
testing. Where the rebuttal evidence tends to undermine the conclusion 
of a physician who prepared a medical report submitted by the claimant, 
the claimant is entitled to submit an additional statement from the 
physician who prepared the medical report explaining his conclusion in 
light of the rebuttal evidence.
    (3)(i) The responsible operator designated pursuant to Sec.  
725.410 is entitled to obtain and submit, in support of its affirmative 
case, no more than two chest X-ray interpretations, the results of no 
more than two pulmonary function tests, the results of no more than two 
arterial blood gas studies, no more than one report of an autopsy, no 
more than one report of each biopsy, and no more than two medical 
reports. Any chest X-ray interpretations, pulmonary function test 
results, blood gas studies, autopsy report, biopsy report, and 
physicians' opinions that appear in a medical report must each be 
admissible under this paragraph or paragraph (a)(4) of this section. In 
obtaining such evidence, the responsible operator may not require the 
miner to travel more than 100 miles from his or her place of residence, 
or the distance traveled by the miner in obtaining the complete 
pulmonary evaluation provided by Sec.  725.406 of this part, whichever 
is greater, unless a trip of greater distance is authorized in writing 
by the district director. If a miner unreasonably refuses--
    (A) To provide the Office or the designated responsible operator 
with a complete statement of his or her medical history and/or to 
authorize access to his or her medical records, or
    (B) To submit to an evaluation or test requested by the district 
director or the designated responsible operator, the miner's claim may 
be denied by reason of abandonment. (See Sec.  725.409 of this part).
    (ii) The responsible operator is entitled to submit, in rebuttal of 
the case presented by the claimant, no more than one physician's 
interpretation of each chest X-ray, pulmonary function test, arterial 
blood gas study, autopsy or biopsy submitted by the claimant under 
paragraph (a)(2)(i) of this section and by the Director pursuant to 
Sec.  725.406. In any case in which the claimant has submitted the 
results of other testing pursuant to Sec.  718.107, the responsible 
operator is entitled to submit one physician's assessment of each piece 
of such evidence in rebuttal. In addition, where the claimant has 
submitted rebuttal evidence under paragraph (a)(2)(ii) of this section, 
the responsible operator is entitled to submit an additional statement 
from the physician who originally interpreted the chest X-ray or 
administered the objective testing. Where the rebuttal evidence tends 
to undermine the conclusion of a physician who prepared a medical 
report submitted by the responsible operator, the responsible operator 
is entitled to submit an additional statement from the physician who 
prepared the medical report explaining his conclusion in light of the 
rebuttal evidence.
    (iii) In a case in which the district director has not identified 
any potentially liable operators, or has dismissed all potentially 
liable operators under Sec.  725.410(a)(3), or has identified a liable 
operator that ceases to defend the claim on grounds of an inability to 
provide for payment of continuing benefits, the district director is 
entitled to exercise the rights of a responsible operator under this 
section, except that the evidence obtained in connection with the 
complete pulmonary evaluation performed pursuant to Sec.  725.406 must 
be considered evidence obtained and submitted by the Director, OWCP, 
for purposes of paragraph (a)(3)(i) of this section. In a case 
involving a dispute concerning medical benefits under Sec.  725.708 of 
this part, the district director is entitled to develop medical 
evidence to determine whether the medical bill is compensable under the 
standard set forth in Sec.  725.701 of this part.
    (4) Notwithstanding the limitations in paragraphs (a)(2) and (a)(3) 
of this section, any record of a miner's hospitalization for a 
respiratory or pulmonary or related disease, or medical treatment for a 
respiratory or pulmonary or related disease, may be received into 
evidence.
    (5) A copy of any documentary evidence submitted by a party must be 
served on all other parties to the claim. If the claimant is not 
represented by an attorney, the district director must mail a copy of 
all documentary evidence submitted by the claimant to all other parties 
to the claim. Following the development and submission of affirmative 
medical evidence, the parties may submit rebuttal evidence in 
accordance with the schedule issued by the district director.
* * * * *
    (c) Testimony. A physician who prepared a medical report admitted 
under this section may testify with respect to the claim at any formal 
hearing conducted in accordance with subpart F of this part, or by 
deposition. If a party has submitted fewer than two medical reports as 
part of that party's affirmative case under this section, a physician 
who did not prepare a medical report may testify in lieu of such a 
medical report. The testimony of such a physician will be considered a 
medical report for purposes of the limitations provided by this 
section. A party may offer the testimony of no more than two physicians 
under the provisions of this section unless the adjudication officer 
finds good cause under paragraph (b)(1) of Sec.  725.456 of this part. 
In accordance with the schedule issued by the district director, all 
parties must notify the district director of the name and current 
address of any potential witness whose testimony pertains to the 
liability of a potentially liable operator or the designated 
responsible operator. Absent such notice, the testimony of a witness 
relevant to the liability of a potentially liable operator or the 
designated responsible operator will not be admitted in any hearing 
conducted with respect to the claim unless the administrative law judge 
finds that the lack of notice should be excused due to extraordinary 
circumstances.
    (d) Except to the extent permitted by Sec. Sec.  725.456 and 
725.310(b), the limitations set forth in this section apply to all 
proceedings conducted with respect to a claim, and no documentary 
evidence pertaining to liability may be admitted in any further 
proceeding conducted with respect to a claim unless it is submitted to 
the district director in accordance with this section.

0
5. In Sec.  725.601, revise paragraphs (b) and (c) to read as follows:


Sec.  725.601  Enforcement generally.

* * * * *
    (b) It is the policy and intent of the Department to vigorously 
enforce the provisions of this part through the use of the remedies 
provided by the Act. Accordingly, if an operator refuses to

[[Page 24482]]

pay benefits with respect to a claim for which the operator has been 
adjudicated liable, the Director may invoke and execute the lien on the 
property of the operator as described in Sec.  725.603. Enforcement of 
this lien must be pursued in an appropriate U.S. district court. If the 
Director determines that the remedy provided by Sec.  725.603 may not 
be sufficient to guarantee the continued compliance with the terms of 
an award or awards against the operator, the Director may in addition 
seek an injunction in the U.S. district court to prohibit future 
noncompliance by the operator and such other relief as the court 
considers appropriate (see Sec.  725.604). If an operator unlawfully 
suspends or terminates the payment of benefits to a claimant, the 
district director may declare the award in default and proceed in 
accordance with Sec.  725.605. In all cases payments of additional 
compensation (see Sec.  725.607) and interest (see Sec.  725.608) will 
be sought by the Director or awarded by the district director.
    (c) In certain instances the remedies provided by the Act are 
concurrent; that is, more than one remedy might be appropriate in any 
given case. In such a case, the Director may select the remedy or 
remedies appropriate for the enforcement action. In making this 
selection, the Director shall consider the best interests of the 
claimant as well as those of the fund.

0
6. Revise Sec.  725.607 to read as follows:


Sec.  725.607  Payments of additional compensation.

    (a) If any benefits payable under the terms of an award by a 
district director (Sec.  725.419(d)), a decision and order filed and 
served by an administrative law judge (Sec.  725.478), or a decision 
filed by the Board or a U.S. court of appeals, are not paid by an 
operator or other employer ordered to make such payments within 10 days 
after such payments become due, there will be added to such unpaid 
benefits an amount equal to 20 percent thereof, which must be paid to 
the claimant at the same time as, but in addition to, such benefits, 
unless review of the order making such award is sought as provided in 
section 21 of the LHWCA and an order staying payments has been issued.
    (b) If, on account of an operator's or other employer's failure to 
pay benefits as provided in paragraph (a) of this section, benefit 
payments are made by the fund, the eligible claimant will nevertheless 
be entitled to receive such additional compensation to which he or she 
may be eligible under paragraph (a), with respect to all amounts paid 
by the fund on behalf of such operator or other employer.
    (c) The fund may not be held liable for payments of additional 
compensation under any circumstances.

    Signed at Washington, DC, this 19th day of April, 2016.
Leonard J. Howie, III,
Director, Office of Workers' Compensation Programs.
[FR Doc. 2016-09525 Filed 4-25-16; 8:45 am]
 BILLING CODE 4510-CR-P