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