Regulations Implementing the Federal Coal Mine Health and Safety
Act of 1969, as Amended [Proposed Rules] [10/08/1999]
Regulations Implementing the Federal Coal Mine Health and Safety Act
of 1969, as Amended [10/08/1999]
Volume 64, Number 195, Page 55065-55072
The text of the Preliminary Regulatory
Flexibility Analysis, Proposed Regulations Implementing the Federal Coal Mine
Health and Safety Act of 1969, is available for review in either
.pdf or Word
format.
Due to the large file size, this document has been
divided into three parts:
[Federal Register: October 8, 1999 (Volume 64, Number 195)]
[Proposed Rules]
[Page 54965-55014]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08oc99-52]
[[Page 54965]]
_______________________________________________________________________
Part II
Department of Labor
_______________________________________________________________________
Employment Standards Administration
_______________________________________________________________________
20 CFR Part 718 et al.
Regulations Implementing the Federal Coal Mine Health and Safety Act of
1969; Proposed Rule
[[Page 54966]]
DEPARTMENT OF LABOR
Employment Standards Administration
20 CFR Parts 718, 722, 725, 726, and 727
RIN 1215-AA99
Regulations Implementing the Federal Coal Mine Health and Safety
Act of 1969, as Amended
AGENCY: Employment Standards Administration, Labor.
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: On January 22, 1997, the Department issued a proposed rule to
amend the regulations implementing the Black Lung Benefits Act. The
Department initially allowed interested parties until March 24, 1997 to
file comments, but extended that deadline twice. When the comment
period finally closed on August 21, 1997, the Department had received
almost 200 written submissions from coal miners, coal mine operators,
insurers, physicians, and attorneys. In addition, the Department held
two hearings, one on June 19, 1997 in Charleston, West Virginia, and
another on July 22-23, 1997 in Washington, D.C. Over 50 people
testified at the Department's hearings. In total, the Department heard
from over 100 former coal miners and members of their families, over 50
coal mine operators and insurance companies that provide black lung
benefits insurance, eight physicians, eight attorneys representing both
claimants and coal mine operators, nine legislators at the federal and
state levels, and groups as diverse as the United Mine Workers of
America, the National Black Lung Association, the National Mining
Association, the American Insurance Association, and the American Bar
Association.
The Department has reviewed all of the comments and testimony, and
has decided to issue a second proposal, revising a number of the most
important regulations contained in the earlier proposal. In some cases,
the Department has proposed additional changes to these regulations. In
other cases, the Department has explained its decision not to alter its
proposal based on the comments received to date. Finally, the
Department has prepared an initial regulatory flexibility analysis. The
Department's second proposal is intended to accomplish two purposes.
First, it will provide notice to all interested parties of the proposed
revisions, as well as of the initial regulatory flexibility analysis
set forth in this document. Second, the re-proposal will allow small
entities that may have been unaware of the Department's earlier
proposal to submit comments on the entire proposed rule.
DATES: Comments must be submitted on or before December 7, 1999.
ADDRESSES: All comments concerning these proposed regulations should be
addressed to James L. DeMarce, Director, Division of Coal Mine Workers'
Compensation, Room C-3520, Frances Perkins Building, 200 Constitution
Ave., NW., Washington, DC 20210.
FOR FURTHER INFORMATION CONTACT: James L. DeMarce, (202) 693-0046.
SUPPLEMENTARY INFORMATION:
This notice reprints 20 CFR Parts 718, 722, 725, and 726 in their
entirety for the convenience of interested parties. This notice thus
necessarily includes proposed revisions contained in the Department's
original notice of proposed rulemaking. 62 FR 3338 (Jan. 22, 1997). The
Department intends this notice to supplement the original notice,
however, and not to replace it. To the extent that previously proposed
regulatory changes have not been altered by the revisions contained in
this notice, the explanation of those changes contained in the
Department's initial notice remains valid. Where the Department has
proposed additional changes, those changes are explained below.
Summary of Noteworthy Proposed Regulations
Evidentiary Development
Documentary Medical Evidence
The Department's initial proposal governing evidentiary development
in black lung claims resulted in the greatest volume of public comment,
from coal mine operators, their insurers, claims servicing
organizations and miners. Many commenters were critical of the
Department's proposal that all documentary medical evidence was to be
submitted to the district director in the absence of extraordinary
circumstances. Numerous commenters, expressing widely varying points of
view, also addressed the proposed limitation on the amount of
documentary medical evidence that each side could submit in a given
claim.
After carefully considering the many valid objections to the
required submission of documentary medical evidence to the district
director, the Department now proposes to retain the current process for
submitting documentary medical evidence into the record. Under this
process, parties may submit documentary medical evidence either to the
district director or to an administrative law judge (ALJ) up to 20 days
before an ALJ hearing, or even thereafter, if good cause is shown. This
proposal does retain, however, the Department's original limitation on
the amount of documentary medical evidence which may be submitted in
each claim. To clarify its intent, the Department has defined
differently the applicable evidentiary limitations. These limitations
are now expressed in terms of the types of evidence most commonly used
to establish or refute entitlement to benefits under Secs. 718.202 and
718.204. Thus, rather than describing the evidentiary limitations in
terms of two pulmonary evaluations or consultative reports, the revised
Sec. 725.414 speaks in terms of two chest X-ray interpretations, the
results of two pulmonary function tests, two arterial blood gas
studies, and two medical reports.
The revised Sec. 725.414 also would make explicit the amount of
evidence which each side may submit in rebuttal of its opponent's case.
A party may submit no more than one physician's interpretation of each
chest X-ray, pulmonary function test, or arterial blood gas study
submitted by its opponent. In addition, the Department proposes to
permit a party to rehabilitate evidence that has been the subject of
rebuttal. For example, where a party submits a physician's
interpretation in rebuttal of a chest X-ray interpretation or objective
test, the party that originally submitted the chest X-ray or test into
evidence may introduce a contrary statement from the physician who
originally interpreted it.
This proposal would alter in one significant way the limitations on
the amount of medical evidence admissible in each claim. In order to
allow for a more careful consideration of the unique facts and
circumstances of each case, and to provide an additional procedural
safeguard, this proposal would permit an administrative law judge to
admit medical evidence into the record in excess of the limits outlined
in Sec. 725.414 upon a showing of good cause. The Department's prior
proposal would have permitted the admission of such evidence only if a
moving party could demonstrate extraordinary circumstances.
Complete Pulmonary Evaluation
The Department also proposes a change in the manner in which it
administers the complete pulmonary evaluation required by the Black
Lung Benefits Act. Under the Department's original proposal, a miner
could be examined either by a physician selected
[[Page 54967]]
by the Department or by a physician of his choosing. If the miner
selected the physician, however, the report of that examination would
have counted as one of the two pulmonary evaluations the miner was
entitled to submit into evidence. The Department now proposes to allow
the miner to choose the physician or facility to perform the complete
pulmonary evaluation from a list of providers maintained by the
Department. The authorized list of physicians and facilities in a given
case would include all those in the state of the miner's residence and
contiguous states. If, however, a miner chose a provider more than one
hundred miles from his residence to administer the 413(b) evaluation,
the designated responsible operator could choose to send the miner a
comparable distance for its examination. The 413(b) examination results
would not count against the miner's quota. Sec. 725.406.
The Department believes that this proposal would benefit all
parties to a claim. It would make possible the best quality respiratory
and pulmonary evaluation and would insure each miner a thorough
examination, performed in compliance with the applicable quality
standards. Such a pulmonary evaluation would therefore give the
Department a sound evidentiary basis upon which to make an initial
finding, a finding which both the claimant and the operator may find
credible. The Department intends to develop more rigorous standards for
physicians and facilities that perform pulmonary evaluations and to
reevaluate the fees it pays physicians to perform and explain the
results of these examinations. The Department has discussed in the
preamble to Sec. 725.406 several possible criteria that the Office
might use in selecting appropriate physicians and facilities, and
invites comment on these and other possible criteria.
Developing medical evidence relevant to the claimant's respiratory
and pulmonary condition, including the objective medical testing
required by the Department's quality standards, may involve costs
beyond the reach of some claimants. Thus, this proposal would require a
district director to inform the claimant that he may have the results
of the Department's initial objective testing sent to his treating
physician for use in the preparation of a medical report that complies
with the Department's quality standards. The district director's notice
would also inform the claimant that, if submitted, a report from his
treating physician would count as one of the two reports he is entitled
to submit under Sec. 725.414, and that he may wish to seek advice, from
a lawyer or other qualified representative, before requesting his
treating physician to supply such a report. In this way, the Department
hopes to assist claimants who may not be able to afford the necessary
objective testing.
Documentary Evidence Pertaining to the Liability of a Potentially
Liable Operator or the Responsible Operator
Although the Department now proposes to allow the submission of new
documentary medical evidence while a case is pending before the Office
of Administrative Law Judges, it has not altered the proposal with
respect to the required submission to the district director of all
documentary evidence relevant to potentially liable operators and the
responsible operator. Proposed Secs. 725.408, 725.414 and 725.456 would
continue to require that such evidence be submitted to the district
director and that an administrative law judge may admit additional
evidence on such issues only if the party seeking to submit the
evidence demonstrates extraordinary circumstances justifying its
admission. The Department has revised proposed Sec. 725.408, however,
in response to operators' comments. That section would now allow an
operator, notified of its potential liability under proposed
Sec. 725.407, 90 days, rather than 60, to submit documentary evidence
challenging the district director's determination that it meets the
requirements in Sec. 725.408(a)(2). In addition, the 90 day period
could be extended for good cause pursuant to Sec. 725.423.
Witnesses
This proposal alters the provisions governing witnesses testimony.
Secs. 725.414, 725.456, 725.457. The revisions would allow a physician
to testify, either at a hearing or pursuant to deposition, if he
authored a ``medical report'' admitted into the record pursuant to
Sec. 725.414. Alternatively, if a party has submitted fewer than the
two medical reports allowed as an affirmative case, a physician who did
not prepare a medical report could testify in lieu of such a report. No
party would be allowed to offer the testimony of more than two
physicians, however, unless the administrative law judge found good
cause to allow evidence in excess of the Sec. 725.414 limitations. The
Department also has proposed altering its original limitation on the
scope of a physician's testimony. If a physician is permitted to
testify, he may testify as to any medical evidence of record, and not
solely with respect to the contents of the report he prepared.
The regulations governing witnesses testimony would continue to
require that the parties notify the district director of any potential
witness whose testimony pertains to the liability of a potentially
liable operator or the responsible operator. Absent such notice, the
testimony of such a witness may not be admitted into a hearing record
absent an administrative law judge's finding of extraordinary
circumstances. Secs. 725.414, 725.457.
Witnesses' Fees
The Department received comments from both miners and coal mine
operators criticizing its initial proposal, which would have assessed
liability for witnesses' fees on the party seeking to cross-examine a
witness if the witness's proponent did not intend to call the witness
to appear at the hearing. In response to these objections, the
Department now proposes to assess the costs of cross-examination of a
witness on the party relying on that witness's affirmative testimony.
This change will make the regulation more consistent with the manner in
which witnesses' fees are paid in general litigation. Under the
proposal, the party whose witness is to be cross-examined may request
the administrative law judge to authorize a less burdensome method of
cross-examination than an actual appearance at a hearing, provided that
the alternative method authorized will produce a full and true
disclosure of the facts.
The only exception to this general rule would be in the case of an
indigent claimant. If a claimant is the proponent of the witness whose
cross-examination is sought, and the claimant demonstrates that he
would be deprived of ordinary and necessary living expenses if required
to pay the witness's fee and mileage necessary to produce the witness
for cross-examination, the administrative law judge may apportion the
costs of the cross-examination between the parties, up to and including
the assessment of the total cost against the party opposing claimant's
entitlement. A claimant shall be considered deprived of funds required
for ordinary and necessary living expenses under the standards set
forth at 20 CFR 404.508. The Black Lung Disability Trust Fund may not
be held liable for such witness's fee in any case in which the district
director has designated a responsible operator, except that the fund
may be assessed the cost associated with the cross-examination of the
physician who performed the miner's complete pulmonary evaluation.
[[Page 54968]]
Subsequent Claims
Subsequent applications for benefits are filed more than one year
after the denial of a previous claim and may be adjudicated only if the
claimant demonstrates that an applicable condition of entitlement has
changed in the interim. In its initial notice of proposed rulemaking,
the Department attempted to clarify the regulation governing subsequent
claims by summarizing and incorporating into the regulation's language
the outcome of considerable appellate litigation. 62 FR 3351-3353 (Jan.
22, 1997). Because the courts of appeals have issued additional
decisions since the Department's initial proposal, the proposal now
merely codifies caselaw that is already applicable to more than 90
percent of the claimants who apply for black lung benefits. The
Department's complete discussion of the numerous comments received in
response to the first notice of proposed rulemaking is found under
Sec. 725.309.
This second proposal contains two changes to Sec. 725.309 as
initially proposed. Both changes affect Sec. 725.309(d)(3). The
Department now proposes elimination of the rebuttable presumption that
the miner's physical condition has changed if the miner proves with new
medical evidence one of the applicable conditions of entitlement.
Commenters responded that the proposal was confusing and would lead to
considerable litigation. The Department agrees that the presumption is
unnecessary and suggests its deletion. Under the new proposal, a
subsequent claim will be denied unless the claimant demonstrates that
one of the applicable conditions of entitlement has changed since the
date upon which the order denying the prior claim became final. Section
725.309(d)(3) of this proposal also clarifies the Department's original
intent with respect to subsequent survivors' claims. In order to avoid
an automatic denial, the applicant in a subsequent survivor's claim
must demonstrate that at least one of the applicable conditions of
entitlement is unrelated to the miner's physical condition at the time
of his death. Thus, if the prior denial was based solely on the
survivor's failure to establish that the miner had pneumoconiosis, that
the miner's pneumoconiosis was caused by coal mine employment, or that
the pneumoconiosis contributed to the miner's death, any subsequent
claim must also be denied, absent waiver by the liable party.
By allowing the filing of a subsequent claim for benefits which
alleges a worsening of the miner's condition, the Department merely
recognizes the progressive nature of pneumoconiosis. The proposed
regulation does not allow the reopening of any prior claim which was
denied more than one year before the filing of the subsequent claim. It
also prohibits any award of benefits for a period of time covered by
that prior denial. Responsible operators have argued to the circuit
courts of appeals that the Department's regulatory scheme allows the
``recycling'' of an old claim in violation of the Supreme Court's
holding that a black lung claimant may not ``seek[] to avoid the bar of
res judicata [finality] on the ground that the decision was wrong.''
Pittston Coal Group v. Sebben, 488 U.S. 105, 123 (1988). The courts
have uniformly rejected this argument, see Lovilia Coal Co. v. Harvey,
109 F.3d 445, 449-450 (8th Cir. 1997), cert. denied, 118 S. Ct. 1385
(1998). Thus, the Department's proposal is fully consistent with the
Supreme Court's holding in Sebben, and gives appropriate finality to
prior denials.
The Department's experience with subsequent claims also
demonstrates the need for such filings. During the period between
January 1, 1982, when the Black Lung Benefits Amendments of 1981 took
effect, and July 16, 1998, 10.56 percent of the subsequent claims filed
by living miners were ultimately awarded as opposed to only 7.47
percent of first-time claims. To prevent a miner who has previously
been denied benefits from filing a subsequent claim would force each
miner to ``guess'' correctly when he has become totally disabled due to
pneumoconiosis arising out of coal mine employment because a premature
and unsuccessful filing would forever bar an award. In addition, the
total number of subsequent claims filed by miners during that same time
period, 30,964, as compared to the total number of claims filed,
approximately 107,000, indicates that the provision is not abused. Of
the total number of claims filed, only approximately 1,400, or 1.3
percent, were from individuals who had been denied benefits three or
more times. Thus, in general, only an individual who believes his
condition has truly worsened files a subsequent claim.
Although the Department's proposal would allow the filing of
subsequent claims, the Department also intends to take steps to better
educate claimants with respect to the requirements for entitlement. The
Department intends to provide better initial pulmonary evaluations and
better reasoned, more detailed explanations of denials of claims. By
providing claimants with a more realistic view of their possible
entitlement, the Department expects that the number of nonmeritorious
applications will be reduced.
Attorneys' Fees
In its first notice of proposed rulemaking, the Department
attempted to clarify an operator's liability for a claimant's
attorney's fees and the dates on which the operator's liability
commenced. The Department also recognized the Trust Fund's liability
for attorneys' fees and made it coextensive with a liable operator's.
In general, the Department used the date of the event which created an
adversarial relationship between the claimant and either the operator
or the fund as the date on which liability for a claimant's attorney's
fees commenced. The Department used this date based on the theory that
it was the creation of an adversarial relationship which required
employment of an attorney. Thus, for example, a successful claimant's
attorney could only collect a fee from an operator or the fund for
necessary work performed after the liable operator first contested the
claimant's eligibility or the fund first denied the claim. See 62 FR
3354, 3399 (Jan. 22, 1997).
Upon further reflection and consideration of the comments received,
however, the Department now proposes to allow successful claimants'
attorneys to collect fees from an operator or the fund for all
necessary work they perform in a case rather than only the work
performed after creation of an adversarial relationship. Although the
creation of an adversarial relationship and the ultimately successful
prosecution of a claim are still necessary to trigger employer or fund
liability for attorneys' fees, the date on which the adversarial
relationship commenced will no longer serve as the starting point of
liability. The Department believes this change may be appropriate in
light of the evidentiary limitations present in the proposal. These
limitations significantly alter the consequences of an early submission
of evidence and make the quality of each piece of evidence submitted
significantly more important. Thus, in an attempt to avoid setting a
trap for the unwary claimant and to encourage early attorney
involvement in these claims, the Department proposes allowing
successful attorneys to collect fees for all of the necessary work they
perform.
Treating Physicians' Opinions
In the preamble accompanying its initial proposal, the Department
noted that its proposal to allow a fact-finder to give controlling
weight to the opinion of
[[Page 54969]]
a treating physician attempted to codify principles embodied in case
law and also drew on a similar regulation adopted by the Social
Security Administration, 20 CFR 404.1527(d)(2). See 62 Fed. Reg. 3338,
3342 (Jan. 22, 1997). The Department's proposal elicited widely
divergent comment from numerous sources. The Department now invites
comment on alternative ways to determine when a treating physician's
opinion may be entitled to controlling weight.
The purpose of this proposal is not to limit a factfinder's
consideration of any properly admitted medical or other relevant
evidence. Rather, this regulation would mandate only that the
factfinder recognize that a treating physician may possess additional
insight into the miner's respiratory or pulmonary condition by virtue
of his extended treatment. The Department has proposed two changes to
Sec. 718.104(d). In the absence of contrary probative evidence, the
adjudication officer would be required to accept the physician's
statement with regard to the nature and duration of the doctor's
treatment relationship with the miner, and the frequency and extent of
that treatment. Sec. 718.104(d)(5). The Department has also added
language to Sec. 718.104(d) to make explicit its intent that a treating
physician's opinion may establish all of the medical elements of
entitlement. Finally, the Department has retained the language in the
original proposal that whether controlling weight is given to the
opinion of a treating physician shall also be based on the credibility
of that opinion in light of its reasoning and documentation, other
relevant evidence and the record as a whole.
Waiver of Overpayments
In its previous notice of proposed rulemaking, the Department
extended the right to seek waiver of recovery of an overpayment to all
claimants, without regard to whether recovery was sought by a
responsible operator or the Black Lung Disability Trust Fund. 62 FR
3366-3367 (Jan. 22, 1997). The Department received numerous comments in
response, many urging adoption of a more generous waiver provision
fashioned after the Longshore and Harbor Workers' Compensation Act.
Many other comments opposed the extension of waiver rights to all
claimants as an unconstitutional deprivation of responsible operators'
property rights and right to appeal. Thus far, these comments have not
provided the Department with a sufficient basis for altering its
original proposal. See the discussion under Sec. 725.547.
The Department also heard testimony from a number of witnesses
generally critical of the application of the criteria used to determine
whether recoupment of an overpayment would defeat the purposes of title
IV of the Federal Coal Mine Health and Safety Act or would be against
equity and good conscience. These waiver criteria are incorporated into
the Black Lung Benefits Act from the Social Security Act, 30 U.S.C.
923(b), 940, incorporating 42 U.S.C. 404(b), and the Social Security
Administration uses them in its adjudication of overpayments arising
under title II of the Social Security Act. Thus, Social Security's
current interpretation of these criteria is found in Social Security
regulations governing title II claims, 20 CFR 404.506 through 404.512,
not in their regulations governing Part B claims filed under the Black
Lung Benefits Act, 20 CFR 410.561 through 410.561h. In order to make
the standards for waiver of recovery of a black lung overpayment more
current, the Department proposes to amend section 725.543 to
incorporate Social Security's title II standards, rather than its Part
B regulations.
Definition of Pneumoconiosis and Establishing Total Disability Due to
Pneumoconiosis
The Department has suggested no further change to its initial
proposal defining pneumoconiosis, Sec. 718.201, and no significant
change to its regulation defining total disability and disability
causation, Sec. 718.204. The miner retains the burden of proving each
of these required elements of entitlement.
The Department received widely divergent comments from medical
professionals on its proposed definition of pneumoconiosis. Some
commenters argued that the proposal lacked a sound medical basis and
would therefore unjustifiably increase the number of claims approved.
Other physicians, also with expertise in pulmonary medicine, supported
the proposal. As a result, the Department sought additional guidance on
this issue from the National Institute for Occupational Safety and
Health (NIOSH). The Department forwarded to NIOSH all of the comments
and testimony it had received relevant to Sec. 718.201 and requested
that NIOSH advise the Department whether any of the material altered
that agency's original opinion, submitted during the comment period,
which supported the Department's proposal. NIOSH concluded that the
unfavorable comments and testimony did not alter its previous position:
NIOSH scientific analysis supports the proposed definitional changes.
The Department also received numerous comments on its proposed
regulation defining total disability and disability causation, and
setting out the criteria for establishing total disability. The
Department has proposed no significant change to Sec. 718.204. It has
proposed, however, a change in the methodology by which pulmonary
function tests are administered. Sec. 718.103(a) and Appendix B to Part
718. This proposal would require that pulmonary function testing be
administered by means of a flow-volume loop, a more reliable method of
ensuring valid, verifiable results in pulmonary function testing. The
Department invites comment on these proposed changes.
True Doubt
The ``true doubt'' rule was an evidentiary weighing principle under
which an issue was resolved in favor of the claimant if the probative
evidence for and against the claimant was in equipoise. In its first
notice of proposed rulemaking, the Department proposed deleting
subsection (c) of the current regulation at Sec. 718.3, because the
Supreme Court held that this language failed to define the ``true
doubt'' rule effectively. 62 FR 3341 (Jan. 22, 1997). Although the
Department received a number of comments urging the proposal of a
``true doubt'' rule, the Department has not done so in this second
notice of proposed rulemaking.
The Department believes that evaluation of conflicting medical
evidence requires careful consideration of a wide variety of disparate
factors, making the applicability of any true doubt rule extremely
limited. The availability of these factors makes it unlikely that a
factfinder will be able to conclude that the evidence, although in
conflict, is equally probative. Thus, the Department does not believe
that promulgation of a true doubt rule will enhance decision-making
under the Act.
Federal Coal Mine Health and Safety Act Endorsement
Section 726.203 was not among the regulations the Department opened
for comment in its previous notice of proposed rulemaking.
Representatives of the insurance industry commented, however, that a
different version of the endorsement contained in Sec. 726.203(a) has
been in use since 1984, with the Department's knowledge and consent.
The Department is now opening Sec. 726.203 for comment. Although this
proposal does not suggest alternative language for the endorsement, the
[[Page 54970]]
preamble does contain the version of the endorsement which the industry
provided. The Department invites comment on its possible use, but urges
commenters to bear in mind the requirement in Sec. 726.205 that
endorsements other than those provided by Sec. 726.203 may be used only
if they do not ``materially alter or attempt [] to alter an operator's
liability for the payment of any benefits under the Act.* * *'' The
Department also requests that the insurance industry submit for the
record any document it might possess from the Department authorizing
use of the different endorsement.
Medical Benefits
Since the Department's initial proposal, the U.S. Court of Appeals
for the Sixth Circuit has issued a decision addressing the
compensability of medical expenses incurred as a result of treatment
for totally disabling pneumoconiosis. Glen Coal Co. v. Seals, 147 F.3d
502 (6th Cir. 1998). A majority of that panel held that the Benefits
Review Board had erred by applying the Fourth Circuit's presumption to
a miner whose coal mine employment took place within the jurisdiction
of the Sixth Circuit. In the Fourth Circuit, if a miner entitled to
monthly black lung benefits receives treatment for a pulmonary
disorder, it is presumed that that disorder is caused or aggravated by
the miner's pneumoconiosis. Doris Coal Co. v. Director, OWCP, 938 F.2d
492 (4th Cir. 1991); Gulf & Western Indus. v. Ling, __ F.3d __, 1999 WL
148851 (4th Cir. Mar. 19, 1999).
The Department believes that black lung benefit claims adjudication
should vary as little as possible from circuit to circuit, and
consequently continues to propose a regulatory presumption, based on
the Fourth Circuit's approach, that would apply nationwide. The Sixth
Circuit's opinion would allow such a result, given the separate views
expressed by each of the three judges sitting on that panel. The
Department also believes that a regulatory presumption governing the
compensability of medical expenses for the treatment of totally
disabling pneumoconiosis is appropriate given the rational connection
between the facts proven and the facts presumed.
Explanation of Proposed Changes
Open Regulations
The Department invites comments from interested parties on the
following regulations: Sec. 718.3, Sec. 718.101, Sec. 718.102,
Sec. 718.103, Sec. 718.104, Sec. 718.105, Sec. 718.106, Sec. 718.107,
Sec. 718.201, Sec. 718.202, Sec. 718.204, Sec. 718.205, Sec. 718.301,
Sec. 718.307, Sec. 718.401, Sec. 718.402, Sec. 718.403, Sec. 718.404,
Appendix B to part 718, Appendix C to Part 718, part 722 (entire),
Sec. 725.1, Sec. 725.2, Sec. 725.4, Sec. 725.101, Sec. 725.103,
Sec. 725.202, Sec. 725.203, Sec. 725.204, Sec. 725.209, Sec. 725.212,
Sec. 725.213, Sec. 725.214, Sec. 725.215, Sec. 725.219, Sec. 725.221,
Sec. 725.222, Sec. 725.223, Sec. 725.306, Sec. 725.309, Sec. 725.310,
Sec. 725.311, Sec. 725.351, Sec. 725.362, Sec. 725.367, Sec. 725.403,
Sec. 725.405, Sec. 725.406, Sec. 725.407, Sec. 725.408, Sec. 725.409,
Sec. 725.410, Sec. 725.411, Sec. 725.412, Sec. 725.413, Sec. 725.414,
Sec. 725.415, Sec. 725.416, Sec. 725.417, Sec. 725.418, Sec. 725.421,
Sec. 725.423, Sec. 725.452, Sec. 725.454, Sec. 725.456, Sec. 725.457,
Sec. 725.458, Sec. 725.459, Sec. 725.465, Sec. 725.478, Sec. 725.479,
Sec. 725.490, Sec. 725.491, Sec. 725.492, Sec. 725.493, Sec. 725.494,
Sec. 725.495, Sec. 725.502, Sec. 725.503, Sec. 725.515, Sec. 725.522,
Sec. 725.530, Sec. 725.533, Sec. 725.537, Sec. 725.543, Sec. 725.544,
Sec. 725.547, Sec. 725.548, Sec. 725.606, Sec. 725.608, Sec. 725.609,
Sec. 725.620, Sec. 725.621, Sec. 725.701, Sec. 725.706, Sec. 726.2,
Sec. 726.8, Sec. 726.101, Sec. 726.104, Sec. 726.105, Sec. 726.106,
Sec. 726.109, Sec. 726.110, Sec. 726.111, Sec. 726.114, Sec. 726.203,
Sec. 726.300, Sec. 726.301, Sec. 726.302, Sec. 726.303, Sec. 726.304,
Sec. 726.305, Sec. 726.306, Sec. 726.307, Sec. 726.308, Sec. 726.309,
Sec. 726.310, Sec. 726.311, Sec. 726.312, Sec. 726.313, Sec. 726.314,
Sec. 726.315, Sec. 726.316, Sec. 726.317, Sec. 726.318, Sec. 726.319,
Sec. 726.320, and part 727 (entire).
New Regulations Open for Comment
The Department's initial notice of proposed rulemaking contained a
list of regulations, entitled ``Substantive Revisions,'' that the
Department proposed to revise. 62 FR at 3340 (Jan. 22, 1997). That list
of regulations is reproduced above with six additions. The Department
is now proposing changes to ten regulations that were not open for
comment previously: Sec. 725.351, Sec. 725.403, Sec. 725.465,
Sec. 725.515, Sec. 725.533, Sec. 725.543, Sec. 725.544, Sec. 725.548,
Sec. 726.3, and Sec. 726.203. Although the Department has not proposed
any specific changes to section 726.203, the Department seeks comment
from interested parties on the changes to that regulation suggested by
the insurance industry. Accordingly, the Department now invites comment
from all interested parties on the regulations listed above as Open
Regulations.
Additional Technical changes
The Department's first proposal identified a number of regulations
to which the Department was proposing to make technical revisions. See
62 FR 3340-41 (Jan. 22, 1997). The Department is now proposing
additional technical revisions. Among other things, these proposed
changes delete references to the control numbers used by the Office of
Management and Budget to approve revisions to the regulations in 1984
because the inclusion of these numbers is neither necessary nor helpful
to understanding the Department's regulations. See, e.g., 20 CFR
718.102 (1999). In addition, at the request of the Office of the
Federal Register, the Department is proposing to change references to
various components of title 20 of the Code of Federal Regulations and
to various statutory provisions and to add a colon to Sec. 726.1. The
following regulations should be added to the list of regulations to
which the Department is making only technical revisions: Appendix A to
Part 718, Sec. 725.201, Sec. 725.218, Sec. 725.220, Sec. 725.531,
Sec. 725.536, Sec. 726.1, Sec. 726.103, Sec. 726.207, Sec. 726.208,
Sec. 726.209, Sec. 726.210, Sec. 726.211, Sec. 726.212, and
Sec. 726.213.
Complete List of Technical Revisions
The complete list of regulations to which the Department is making
technical changes is as follows: Sec. 718.1, Sec. 718.2, Sec. 718.4,
Sec. 718.303, Appendix A to Part 718, Sec. 725.102, Sec. 725.201,
Sec. 725.216, Sec. 725.217, Sec. 725.218, Sec. 725.220, Sec. 725.301,
Sec. 725.302, Sec. 725.350, Sec. 725.360, Sec. 725.366, Sec. 725.401,
Sec. 725.402, Sec. 725.404, Sec. 725.419, Sec. 725.420, Sec. 725.450,
Sec. 725.451, Sec. 725.453A, Sec. 725.455, Sec. 725.459A, Sec. 725.462,
Sec. 725.463, Sec. 725.466, Sec. 725.480, Sec. 725.496, Sec. 725.501,
Sec. 725.503A, Sec. 725.504, Sec. 725.505, Sec. 725.506, Sec. 725.507,
Sec. 725.510, Sec. 725.513, Sec. 725.514, Sec. 725.521, Sec. 725.531,
Sec. 725.532, Sec. 725.536, Sec. 725.603, Sec. 725.604, Sec. 725.605,
Sec. 725.607, Sec. 725.701A, Sec. 725.702, Sec. 725.703, Sec. 725.704,
Sec. 725.705, Sec. 725.707, Sec. 725.708, Sec. 725.711, Sec. 726.1,
Sec. 726.4, Sec. 726.103, Sec. 726.207, Sec. 726.208, Sec. 726.209,
Sec. 726.210, Sec. 726.211, Sec. 726.212, and Sec. 726.213. Pursuant to
the authority set forth in 5 U.S.C. 552(b)(3)(A), which allows federal
agencies to alter ``rules of agency organization, procedure, or
practice'' without notice and comment, the Department is not accepting
comments on any of these regulations.
Unchanged Regulations
Certain regulations are merely being re-promulgated without
alteration and are also not open for public comment. To the extent
appropriate, the Department's previous explanations of
[[Page 54971]]
these regulations, set forth in the Federal Register, see 43 FR 36772-
36831, Aug. 18, 1978; 48 FR 24272-24294, May 31, 1983, remain
applicable. The same is true of those regulations to which the
Department is making only technical changes. The following regulations
are being re-promulgated for the convenience and readers: Sec. 718.203,
Sec. 718.206, Sec. 718.302, Sec. 718.304, Sec. 718.305, Sec. 718.306,
Sec. 725.3, Sec. 725.205, Sec. 725.206, Sec. 725.207, Sec. 725.208,
Sec. 725.210, Sec. 725.211, Sec. 725.224, Sec. 725.225, Sec. 725.226,
Sec. 725.227, Sec. 725.228, Sec. 725.229, Sec. 725.230, Sec. 725.231,
Sec. 725.232, Sec. 725.233, Sec. 725.303, Sec. 725.304, Sec. 725.305,
Sec. 725.307, Sec. 725.308, Sec. 725.352, Sec. 725.361, Sec. 725.363,
Sec. 725.364, Sec. 725.365, Sec. 725.422, Sec. 725.453, Sec. 725.460,
Sec. 725.461, Sec. 725.464, Sec. 725.475, Sec. 725.476, Sec. 725.477,
Sec. 725.481, Sec. 725.482, Sec. 725.483, Sec. 725.497, Sec. 725.511,
Sec. 725.512, Sec. 725.520, Sec. 725.534, Sec. 725.535, Sec. 725.538,
Sec. 725.539, Sec. 725.540, Sec. 725.541, Sec. 725.542, Sec. 725.545,
Sec. 725.546, Sec. 725.601, Sec. 725.602, Sec. 725.710, Sec. 726.5,
Sec. 726.6, Sec. 726.7, Sec. 726.102, Sec. 726.107, Sec. 726.108,
Sec. 726.112, Sec. 726.113, Sec. 726.115, Sec. 726.201, Sec. 726.202,
Sec. 726.204, Sec. 726.205, and Sec. 726.206.
Changes in the Department's Second Proposal
The Department's second proposal contains substantive changes,
either in the regulation or the preamble language, or both, to the
following regulations: Sec. 718.3, Sec. 718.101, Sec. 718.103,
Sec. 718.104, Sec. 718.105, Sec. 718.106, Sec. 718.107, Sec. 718.201,
Sec. 718.204, Sec. 718.205, Part 718, Appendix B, Sec. 725.2,
Sec. 725.101, Sec. 725.209, Sec. 725.223, Sec. 725.309, Sec. 725.310,
Sec. 725.351, Sec. 725.367, Sec. 725.403, Sec. 725.406, Sec. 725.407,
Sec. 725.408, Sec. 725.409, Sec. 725.411, Sec. 725.414, Sec. 725.416,
Sec. 725.456, Sec. 725.457, Sec. 725.459, Sec. 725.465, Sec. 725.491,
Sec. 725.492, Sec. 725.493, Sec. 725.494, Sec. 725.495, Sec. 725.502,
Sec. 725.503, Sec. 725.515, Sec. 725.533, Sec. 725.543, Sec. 725.544,
Sec. 725.547, Sec. 725.548, Sec. 725.606, Sec. 725.701, Sec. 726.3,
Sec. 726.8 and Sec. 726.203. The Department has carefully considered
all of the comments that it has received to date with regard to the
regulations. The preamble contains an explanation of the Department's
proposed changes as well as its reason for rejecting other suggestions.
In particular, the Department invites comment from small businesses
that may not have been aware of the potential impact of the
Department's proposed rule. In order to ensure that small businesses
have adequate information, the Department intends to mail a copy of
this proposal to each coal mine operator who is identified in current
records maintained by the Mine Safety and Health Administration.
Several commenters suggest that the Department lacks the authority
to revise the regulations governing claims filed under the Black Lung
Benefits Act. Although some of these objections are limited to
individual regulations, such as the definition of ``pneumoconiosis,''
and will be addressed in the discussion of those regulations, two of
the objections apply to a substantial number of the revisions made by
the Department. They are: first, that the Department lacks the
authority to promulgate regulations covering matters that were the
subject of an unsuccessful attempt to amend the Act in 1994; and,
second, that the Supreme Court's decision in Director, OWCP v.
Greenwich Collieries, 512 U.S. 267 (1994), prohibits the Department
from adopting any regulation that requires coal mine operators to bear
a burden of proof.
Regulatory Authority
In 1994, the 104th Congress considered legislation that would have
amended the Black Lung Benefits Act by, among other things, limiting
the amount of evidence parties may submit, providing claimants with
overpayment relief, and allowing previously denied applicants to seek
de novo review of their claims. The House passed a version of this
legislation, H.R. 2108, on May 19, 1994, but the Senate adjourned in
September, 1994 without acting on several similar bills. Numerous
commenters have argued that in ``rejecting'' H.R. 2108, the Congress
has already disapproved certain of the revisions now proposed by the
Department. This argument fails on two grounds. First, Congress'
failure to act does not deprive the Department of the authority to
promulgate regulations otherwise conferred by the Black Lung Benefits
Act. Second, Congress did not reject the legislation. Instead, the
Senate adjourned without considering its version of the bill passed by
the House.
The starting point for determining the validity of any regulation
is the legislation authorizing the agency to issue binding rules. As a
general matter, ``[t]he power of an administrative agency to administer
a congressionally created * * * program necessarily requires the
formulation of policy and the making of rules to fill any gap left,
implicitly or explicitly, by Congress.'' Morton v. Ruiz, 415 U.S. 199,
231 (1974). ``If Congress has explicitly left a gap for the agency to
fill, there is an express delegation of authority to the agency to
elucidate a specific provision of the statute by regulation. Such
legislative regulations are given controlling weight unless they are
arbitrary, capricious, or manifestly contrary to the statute.'' Chevron
v. Natural Resources Defense Council, 467 U.S. 837, 843-44 (1984).
In Pauley v. Bethenergy Mines, Inc., 501 U.S. 680 (1991), the
Supreme Court recognized the applicability of the Chevron analysis to
regulations implementing the Black Lung Benefits Act:
It is precisely this recognition that informs our determination
that deference to the Secretary is appropriate here. The Black Lung
Benefits Act has produced a complex and highly technical regulatory
program. The identification and classification of medical
eligibility criteria necessarily require significant expertise, and
entail the exercise of judgment grounded in policy concerns. In
those circumstances, courts appropriately defer to the agency
entrusted by Congress to make such policy determinations.
Id. at 696. In addition to providing this general authority, the Black
Lung Benefits Act contains several explicit provisions authorizing
rule-making by the Department of Labor. Section 422(a) of the Act
provides that ``[i]n administering this part [Part C of the Act], the
Secretary is authorized to prescribe in the Federal Register such
additional provisions * * * as [s]he deems necessary to provide for the
payment of benefits by such operator to persons entitled thereto as
provided in this part and thereafter those provisions shall be
applicable to such operator.'' 30 U.S.C. 932(a). Section 426(a) of the
Act similarly authorizes the Secretary to ``issue such regulations as
[she] deems appropriate to carry out the provisions of this title.'' 30
U.S.C. 936(a). As the Fourth Circuit has pointed out, these two
provisions represent a ``broad grant of rulemaking authority.'' Harman
Mining Co. v. Director, OWCP, 826 F.2d 1388, 1390 (4th Cir. 1987).
Finally, the Act contains several other provisions authorizing the
Secretary to promulgate regulations on specific subjects. See, e.g., 30
U.S.C. 902(f)(1)(D) (criteria for medical tests which accurately
reflect total disability), 932(h) (standards for assigning liability to
operators), and 933(b)(3) (required insurance contract provisions).
The Secretary's rulemaking authority is not unlimited. For example,
section 422(a) prohibits the Department from promulgating regulations
that are inconsistent with Congress's decision to exclude certain
provisions of the Longshore and Harbor Workers' Compensation Act from
those
[[Page 54972]]
incorporated into the Black Lung Benefits Act. Moreover, under Chevron,
the Department clearly has no authority to issue regulations on a
subject which Congress has addressed unambiguously. Pittston Coal Group
v. Sebben, 488 U.S. 105 (1988). For example, in 1981, Congress amended
the Act to limit the eligibility of surviving spouses of deceased coal
miners who filed claims on or after January 1, 1982. Congress provided
that such a spouse would be entitled to survivors' benefits only if
[s]he could establish that the miner had died due to pneumoconiosis.
Pub. L. 97-119, 95 Stat. 1635, Sec. 203(a)(2), (3). The bill passed by
the House in 1994 would have reinstated so-called unrelated death
benefits so as to allow a surviving spouse to collect benefits, no
matter the miner's cause of death, so long as the miner was totally
disabled due to pneumoconiosis at the time of death. Because that bill
did not become law, however, the 1981 requirement remains in effect,
and quite obviously limits the Department's ability to regulate in this
area.
The mere fact that Congress considered legislation affecting some
of the same subjects addressed by the Department's regulatory proposal,
however, cannot be construed as a similar limitation. ``Ordinarily, and
quite appropriately, courts are slow to attribute significance to the
failure of Congress to act on particular legislation.'' Bob Jones
University v. United States, 461 U.S. 574, 600 (1983). In particular,
the Department is not aware of any case holding that the failure of a
previous Congress to enact legislation prevents an administrative
agency from promulgating regulations on similar topics.
Moreover, the regulations proposed by the Department are, for the
most part, quite different in content from the provisions of either the
bill that was passed by the House or the bills that were under
consideration by the Senate when it adjourned. The Department's
proposed revision of the definition of ``pneumoconiosis'' is similar in
one respect to a provision in H.R. 2108 (recognizing that both
obstructive and restrictive lung disease may be caused by exposure to
coal mine dust). Other provisions, however, are significantly
different. For example, H.R. 2108 would have completely relieved
claimants of the obligation to repay overpaid amounts. In contrast, the
Department's proposal would ensure only that the rules governing waiver
of overpayments are applied without regard to whether the overpayment
was made by the Black Lung Disability Trust Fund or a responsible
operator. In fact, the Department has specifically rejected comments
urging it to use certain provisions incorporated from the Longshore and
Harbor Workers' Compensation Act that would bar the recoupment of
overpayments by employers, an approach similar to that considered by
the 104th Congress. Although the Department is not proposing the
widespread overpayment relief that was contained in H.R. 2108 and was
sought by these commenters, the Department also does not believe that
Congress intended that claimants who receive payment from the Trust
Fund be treated differently than claimants who receive payments from
liable coal mine operators. The Department's proposal would simply
guarantee the equitable treatment of both claimant groups.
The Department's proposed evidentiary limitation is also
significantly different from the limitation set forth in H.R. 2108.
Under the bill passed by the House, claimants would have been allowed
to submit three medical opinions, and responsible operators or the
Trust Fund would have been allowed only one. The Department agrees that
evidentiary limitations are needed to level the playing field between
operators and claimants, but does not believe that the playing field
should be tilted in favor of one party. Rather, the Department's
proposal treats all parties equally and encourages them to rely on the
quality of their medical evidence rather than its quantity. Hopefully,
the proposal's evidentiary limitations will improve the decisionmaking
process in black lung benefit claims.
Finally, the Department's treatment of denied claims also differs
significantly from that proposed in the legislation. H.R. 2108 would
have allowed any claimant denied benefits based on a claim filed on or
after January 1, 1982 to seek readjudication of that claim without
regard to the previous denial. The Department's proposed revision of
Sec. 725.309, on the other hand, specifically forbids the parties from
seeking readjudication of the earlier denial of benefits.
Sec. 725.309(d). Instead, the Department has proposed the codification
of a solution that has already been accepted by five courts of appeals
with jurisdiction over more than 90 percent of black lung claims filed.
That solution requires a claimant to establish, with new evidence, at
least one of the elements previously resolved against him before a new
claim may even be considered on the merits. Even if a claimant
establishes his entitlement to benefits based on a subsequent claim,
benefits will be paid based only on that application and not for time
periods covered by the earlier, final denial.
The Department therefore cannot accept the argument that Congress'
failure to enact legislation in 1994 prevents the Department from
revising regulations that have not been amended since 1983. In many
cases, the Department is simply proposing to codify the decisions of a
majority of the appellate courts. In other cases, the Department's
proposed revisions represent reasonable methods of dealing with
problems that have arisen since the black lung benefits regulations
were first promulgated in 1978. The Department's ability to address
those problems in regulations is independent of any Congressional
effort to reform the Black Lung Benefits Act, and should be judged
according to the standards set forth in Chevron. For the reasons set
forth in its initial notice of proposed rulemaking, 62 FR 3337 (Jan.
22, 1997) and in this notice, the Department believes that its proposed
revisions meet those standards.
Administrative Procedure Act
A number of commenters also suggest that the Department's ability
to create regulatory presumptions is constrained by the Administrative
Procedure Act and the Supreme Court's decision in Greenwich Collieries.
In Greenwich Collieries, the Supreme Court invalidated the use of the
``true doubt'' rule, an evidentiary principle that effectively shifted
the risk of non-persuasion from black lung applicants to coal mine
operators. Under the ``true doubt'' rule, fact-finders were required to
resolve any issue in favor of the claimant if the evidence for and
against entitlement was equally probative. In contrast, section 7(c) of
the Administrative Procedure Act (APA), 5 U.S.C. 556(d), states that
``[e]xcept as otherwise provided by statute, the proponent of a rule or
order has the burden of proof.'' The Court held that, even assuming
that the Department could displace the APA through regulation, the
Department's existing regulation, 20 CFR 718.403, was insufficient to
do so. Finally, the Court determined that the party assigned the
``burden of proof'' by the APA bore the risk of non-persuasion. As a
result, the court held the APA required that the Department resolve
cases of equally probative evidence against the claimant, the party
seeking an order compelling the payment of benefits.
The commenters argue that the Court's decision effectively
prohibits the Department from imposing any burden of proof on an
operator under the Black Lung Benefits Act. The Department does
[[Page 54973]]
not believe that Greenwich Collieries requires such a result. At the
outset, it should be clear that the Court's decision did not address
the relationship between the Department's rulemaking authority and the
APA. Section 956 of the Federal Mine Safety and Health Act (FMSHA)
provides as follows:
Except as otherwise provided in this chapter, the provisions of
sections 551 to 559 and sections 701 to 706 of Title 5 shall not
apply to the making of any order, notice, or decision made pursuant
to this chapter, or to any proceeding for the review thereof.
30 U.S.C. 956. ``This chapter'' is a reference to chapter 22 of Title
30, United States Code, which codifies the FMSHA. Because the Black
Lung Benefits Act is subchapter IV of the FMSHA, section 956 generally
exempts the Act from the requirements of the section 7(c) of the APA.
Similarly, although section 19 of the Longshore and Harbor Workers'
Compensation Act, 33 U.S.C. 919, incorporated into the BLBA by 30
U.S.C. 932(a), makes the APA applicable to the adjudication of claims
under the LHWCA, that provision is incorporated into the Black Lung
Benefits Act only ``except as otherwise provided * * * by regulations
of the Secretary.'' The clear language of the FMSHA and the BLBA thus
authorize the Secretary to depart from the dictates of section 7(c)
when she determines it is in the best interest of the black lung
benefits program.
Moreover, the Court's decision in Greenwich Collieries did not
purport to decide the issues on which a particular party bears the
burden of persuasion. Rather, the Court merely decided that with
respect to two issues on which the claimant bears the burden of proof
under the Secretary's existing regulations (the existence of
pneumoconiosis and the cause of that disease), the claimant must
prevail by a preponderance of the evidence. As the Court observed in
its subsequent decision in Metropolitan Stevedore Co. v. Rambo, 117 S.
Ct. 1953, 1963 (1997), ``the preponderance standard goes to how
convincing the evidence in favor of a fact must be in comparison with
the evidence against it before that fact may be found, but does not
determine what facts must be proven as a substantive part of a claim or
defense.''
Under Greenwich Collieries, then, the Department remains free to
assign burdens of proof to parties as necessary to accomplish the
purposes of the Black Lung Benefits Act. The Department has
historically used regulatory presumptions where they were appropriate.
For example, current 20 CFR 725.492(c), presumes that each employee of
a coal mine operator was regularly and continuously exposed to coal
dust during the course of his employment. In promulgating this
regulation, the Department noted that such a showing required evidence
that was not generally available to the Department; rather such
evidence was within the control of the employer. 43 FR 36802-03 (Aug.
18, 1978). Current 20 CFR 725.493(a)(6) presumes that a miner's
pneumoconiosis arose in whole or in part out of employment with the
employer that meets the conditions for designation as the responsible
operator. Unless the presumption is rebutted, the regulation requires
the responsible operator to pay benefits to the claimant on account of
the miner's total disability or death. One commenter objected to this
presumption, set forth in revised Sec. 725.494(a), as a violation of
Greenwich Collieries, notwithstanding the Act's specific provision
authorizing the use of presumptions with respect to assignment of
liability to a miner's former employers. 30 U.S.C. 932(h).
Even where the BLBA is silent, the Act grants the Secretary
sufficiently broad rulemaking authority to authorize the adoption of
other presumptions. In American Hospital Association v. NLRB, 499 U.S.
606 (1991), the Court considered the ability of the National Labor
Relations Board, using similarly broad regulatory authority, to define
an appropriate bargaining unit by rulemaking even though the statute
required the Board to decide the appropriate bargaining unit ``in each
case.'' Citing a series of previous decisions, the Court held that
``even if a statutory scheme requires individualized determinations,
the decisionmaker has the authority to rely on rulemaking to resolve
certain issues of general applicability unless Congress clearly
expresses an intent to withhold that authority.'' Id. at 612. The Court
expanded on the NLRB's rulemaking authority in Allentown Mack Sales and
Service, Inc. v. NLRB, 118 S. Ct. 818 (1998). In dicta, the Court
concluded as follows:
The Board can, of course, forthrightly and explicitly adopt
counterfactual evidentiary presumptions (which are in effect
substantive rules of law) as a way of furthering legal or policy
goals--for example, the Board's irrebuttable presumption of majority
support for the union during the year following certification, see,
e.g., Station KKHI, 284 N.L.R.B. 1339, 1340, 1987 WL 89811 (1987),
enf'd, 891 F.2d 230 (C.A.9 1989). The Board might also be justified
in forthrightly and explicitly adopting a rule of evidence that
categorically excludes certain testimony on policy grounds, without
regard to its inherent probative value. (Such clearly announced
rules of law or of evidentiary exclusion would of course by subject
to judicial review for their reasonableness and their compatibility
with the Act.)
Id. at 828.
The NLRB's rulemaking authority in this regard is not unique. The
federal courts have upheld the use of presumptions by agencies as
diverse as the Department of Transportation, see Chemical Manufacturers
Association v. Department of Transportation, 105 F.3d 702, 705 (D.C.
Cir. 1997) (``It is well settled that an administrative agency may
establish evidentiary presumptions''); the Interstate Commerce
Commission, see Western Resources, Inc. v. Surface Transportation
Board, 109 F.3d 782, 788 (D.C. Cir. 1997); the Nuclear Regulatory
Commission, see New England Coalition on Nuclear Pollution v. NRC, 727
F.2d 1127, 1129 (D.C.Cir.1984) (Scalia, J.) (even a statutory mandate
requiring consideration of a specific issue ``does not preclude the
adoption of appropriate generalized criteria that would render some
case-by-case evaluations unnecessary''); and the Department of
Education, see Atlanta College of Medical and Dental Careers, Inc. v.
Riley, 987 F.2d 821, 830 (D.C. Cir. 1993) (``* * * under the
circumstances, it would seem quite reasonable for the Secretary to
adopt regulations or even adjudicatory presumptions--bright-line
rules--as to what a school must show * * *''). To the extent that the
Department, like any other administrative agency, uses rulemaking to
establish a presumption, that presumption must be based on a rational
nexus between the proven facts and the presumed facts. Chemical
Manufacturers Association, 105 F.3d at 705; NLRB v. Baptist Hosp.,
Inc., 442 U.S. 773, 787 (1979).
The Department's proposed regulations include provisions that
adjust burdens of proof among the parties. Section 725.495(c)(2), for
example, provides that the potentially liable operator designated as
the responsible operator by the Office of Workers' Compensation
Programs bears the burden of establishing that another operator that
employed the miner more recently is financially capable of assuming
liability for the payment of benefits. Section 726.312 specifically
allocates various burdens of proof between the Department and a coal
mine operator against which the Department is seeking a civil money
penalty for failure to secure the payment of benefits.
In its initial notice of proposed rulemaking, 62 FR 3337 (Jan. 22,
1997) and in this notice, the Department has demonstrated that such
assignments of
[[Page 54974]]
burdens of proof have been carefully tailored to meet the specific
needs of the black lung benefits program. Accordingly, the Department
does not agree with those commenters who argue that the Supreme Court's
decision in Greenwich Collieries prohibits the Department from
requiring responsible operators and their insurers to meet any burden
of proof in adjudications under the Act.
20 CFR Part 718--Standards for Determining Coal Miners' Total
Disability or Death Due to Pneumoconiosis
Subpart A--General
20 CFR 718.3
(a) In its earlier proposal, the Department proposed to delete
subsection (c) of Sec. 718.3, which the Department had cited to the
Supreme Court in support of its argument in favor of a ``true doubt''
rule. Under the ``true doubt'' rule, an evidentiary issue was resolved
in favor of the claimant if the probative evidence for and against the
claimant was in equipoise. In Director, OWCP v. Greenwich Collieries,
512 U.S. 267 (1994), the Court held that an administrative law judge's
use of the rule violated the Administrative Procedure Act, and that
Sec. 718.3 was an ambiguous regulation that could not be read as
authorizing such a rule.
A number of commenters argue that the Supreme Court held any ``true
doubt'' rule improper. Other comments urge the Department to reinstate
the ``true doubt'' rule by promulgating a regulation that clearly
authorizes fact-finders to use the rule in evaluating evidence in black
lung benefits claims. Throughout this rulemaking, however, the
Department has consistently stressed the need for factfinders to
conduct in-depth analyses of the evidence based on its quality rather
than quantity. Moreover, opinions by the courts of appeals and the
Benefits Review Board over the past twenty years have firmly
established that the evaluation of conflicting medical evidence
includes consideration of a wide variety of disparate factors, thus
making the applicability of any true doubt rule extremely limited. In
the case of a medical report, for example, the factfinder must examine
the report's documentation, its reasoning, its relationship to the
other medical reports of record, and the physician's qualifications or
other special status. The availability of all of these factors makes it
unlikely that a factfinder will be able to conclude that the evidence,
although in conflict, is equally probative. Accordingly, the Department
does not believe that the promulgation of a revised ``true doubt'' rule
will enhance decision-making under the Black Lung Benefits Act.
(b) Several comments urge the Department to retain subsection (c)
of the current version of Sec. 718.3. They argue that even if the
language does not explicitly provide a ``true doubt'' rule, it is a
useful reminder to factfinders of the purposes of the Black Lung
Benefits Act. In particular, they point to the Department's quality
standards for medical evidence and issues in which medical science does
not provide a definitive answer. The Department recognizes that the
adjudication of black lung benefits claims requires recognition of the
difficulties faced by claimants in establishing their entitlement to
benefits. Revised Sec. 718.101, for example, will require ``substantial
compliance'' with all of the quality standards applicable to medical
evidence, rather than strict adherence. Requiring ``substantial
compliance'' with the quality standards will give the fact-finder
sufficient flexibility to determine whether a particular piece of
evidence is probative of the claimant's condition notwithstanding its
failure to meet a relatively minor quality standard provision. The
Department does not agree, however, that section 718.3 should contain a
separate, and wholly unenforceable, statement of general principles.
Subsection (c) simply restates Congressional intent reflected in the
legislative history of the 1972 and 1978 amendments to the Black Lung
Benefits Act, see S. Rep. No. 743, 92nd Cong., 2nd Sess. 11, 1972
U.S.C.C.A.N. 2305; S. Rep. No. 95-209, 95th Cong., 2nd Sess. 13, 1978
U.S.C.C.A.N. 237. That legislative history may be used to support a
party's argument regardless of whether it is repeated in the
Secretary's regulations.
Subpart B
20 CFR 718.101
(a) The Department's proposed revision is intended to make clear
its disagreement with Benefits Review Board case law holding that the
Department's quality standards are applicable only to evidence
developed by the Director, OWCP. See Gorzalka v. Big Horn Coal Co., 16
Black Lung Rep. 1-48, 1-51 (Ben. Rev. Bd. 1990). Accordingly, the
Department proposed to amend the regulations to ensure that all
evidence developed in connection with black lung benefits claims meets
certain minimal quality standards. One comment observes that, as
drafted, the Department's revisions would allow factfinders to
invalidate medical evidence in claims already pending before the
Department although that evidence was valid under Board precedent when
it was developed. The Department agrees that upsetting settled
expectations regarding the applicability of the quality standards may
work a substantial hardship in some cases, particularly those involving
unrepresented claimants. Consequently, the Department has revised the
language in section 718.101(b) to clarify that the mandatory nature and
general applicability of the quality standards is prospective only.
Once a final rule takes effect, any testing or examination conducted
thereafter in connection with a black lung benefits claim that does not
substantially comply with the applicable quality standard will be
insufficient to establish the fact for which it is proffered.
(b) Four comments oppose the general requirement in Sec. 718.101(b)
that all evidence developed by any party in conjunction with a claim
for black lung benefits must be in substantial compliance with the
quality standards contained in subpart B. One comment notes the special
hardship imposed on miners in trying to generate conforming evidence.
Three comments assert that exclusion of nonconforming evidence violates
the statutory mandate that ``all relevant evidence'' be considered in
determining whether a claimant is entitled to benefits. 30 U.S.C.
923(b). The Department disagrees. The quality standards have been an
integral part of claims development and adjudication since the Part 718
regulations were first promulgated in 1980. The Department has also
consistently taken the position that the standards apply to all
evidence developed by any party for purposes of prosecuting, or
defending against, a claim for benefits. The proposed change simply
makes this position clear. Finally, employing quality standards to
ensure the use of reliable and technically accurate evidence is
consistent with section 923(b). Evidence which fails the ``substantial
compliance'' standard is inherently unreliable and thus necessarily
inadequate to prove or disprove entitlement issues, and therefore is
not ``relevant'' to the adjudication of the claim.
(c) One comment asks that the Department clarify that the quality
standards represent the only basis on which the reliability of a
medical opinion or test may be challenged. As an example, the comment
states that physicians cite the correlation between the one-second
Forced Expiratory Volume and the Maximum Voluntary Ventilation as a
basis for invalidating a
[[Page 54975]]
pulmonary function test, even though the MVV is not a required part of
the test. In the Department's view, the quality standards provide
factfinders with flexibility in their examination of the medical
evidence of record. If an alleged flaw in medical evidence is not
relevant to the necessary test results, the factfinder may properly
ignore that flaw. The Department's quality standards, however, are not
intended to serve as the sole basis upon which medical evidence may be
evaluated. Instead, parties are free to develop any evidence that
pertains to the validity of the medical evidence in order to provide
the factfinder with the best evidence upon which to base a finding
regarding the miner's physical condition.
(d) Two comments are concerned that the quality standards could
result in the exclusion of a miner's hospitalization and/or medical
treatment records, or a report of biopsy or autopsy. Section 718.101,
however, makes the quality standards applicable only to evidence
``developed * * * in connection with a claim for benefits'' governed by
20 CFR Parts 725 and 727. Therefore, the quality standards are
inapplicable to evidence, such as hospitalization reports or treatment
records, that is not developed for the purpose of establishing, or
defeating, entitlement to black lung benefits.
(e) One comment advocates permitting consideration of nonconforming
tests which produce clinical results comparable to conforming tests.
This suggestion is rejected for the reasons expressed in paragraph (b):
failure to comply with the applicable quality standards deprives the
evidence of its probative worth. Moreover, a nonconforming test which
produces results similar to a conforming test does not significantly
enhance the fact-finding process, given the availability of the
technically accurate results.
(f) One comment would require the Department to notify a party who
submits nonconforming evidence, and afford an opportunity to
rehabilitate the evidence. This requirement is unnecessary. Each party
is responsible for developing evidence in support of its position which
complies with the quality standards. Moreover, proposed Sec. 725.406
does impose a duty on the district director to ensure that the medical
examination sponsored by the Department is valid and conforming. If the
district director identifies any deficiency in that examination, he
must notify the physician and the miner, and take reasonable steps to
correct that deficiency. Finally, evidence may be submitted up to
twenty days before the formal hearing up to the limits provided in
proposed Sec. 725.414. If the opposing party submits evidence in
rebuttal, proposed Sec. 725.414 will permit the party that proffered
the original evidence to attempt to rehabilitate evidence by submitting
an additional report from the preparer of the original report.
(g) Other comments oppose the use of quality standards in general
terms. For the reasons expressed in the preamble to the proposed
regulations, 62 FR 3341-42 (Jan. 22, 1997), the Department believes
that such standards are necessary to ensure the development of reliable
and technically accurate evidence for the adjudication of claims.
Several comments express general support for requiring all parties to
develop their medical evidence in conformance with the relevant quality
standards.
20 CFR 718.103
(a) One physician who testified at the Department's Washington,
D.C. hearing objected to the proposal, set forth in Appendix B to Part
718, that would have precluded miners undergoing pulmonary function
testing from taking an initial inspiration from room air and instead
would have required an initial inspiration from the spirometer.
Transcript, Hearing on Proposed Changes to the Black Lung Program
Regulations (July 22, 1997), p. 306 (testimony of Dr. David James).
Under questioning by the Department's medical consultant, Dr. Leon
Cander, Dr. James stated that use of the flow-volume loop would be more
widely acceptable than the Department's proposal prohibiting an initial
open-air inspiration. Transcript, pp. 319-320. After careful
consideration, the Department agrees that the flow-volume loop may
offer a more reliable method of ensuring valid, verifiable results in
pulmonary function testing, and proposes to revise Sec. 718.103 in
order to require that the flow-volume loop be used for every pulmonary
function test administered to establish or defeat entitlement under the
Black Lung Benefits Act. Spirometers capable of producing a flow-volume
loop, and of electronically deriving a set of tracings showing volume
versus time, are in use in a number of clinics and facilities
specializing in the treatment of pulmonary conditions. While this
notice of proposed rulemaking is open for public comment, the
Department intends to conduct a survey of those clinics and facilities.
Among the information the Department will seek is the extent to which
they already use spirometers capable of producing flow-volume loops.
The Department further notes that for clinics that do not already
possess such a spirometer, the cost is less than $2,000. Because the
use of flow-volume loops will increase the reliability of the pulmonary
function study evidence submitted in black lung claims with only
minimal cost, the Department proposes that all pulmonary function tests
conducted after the effective date of the final rule be submitted in
this form. Proposed changes have been made to subsections (a) and (b),
as well as Appendix B, to accomplish this result. The Department
invites comment on these changes.
(b) Dr. James also observed that the language of subsection (a) is
misleading in suggesting that pulmonary function testing may produce
either a Forced Vital Capacity (FVC) or a Maximum Voluntary Ventilation
(MVV) value. Transcript, Hearing on Proposed Changes to the Black Lung
Program Regulations (July 22, 1997), pp. 304-5 (testimony of Dr. David
James). Dr. James noted that a test must produce an FVC value in order
to obtain a Forced Expiratory Volume for one second (FEV1), which is
required by the regulation. The Department agrees, and has proposed
revising subsection (a) accordingly.
(c) The Department also proposes to revise subsection (b) in order
to conform the regulation to the requirements of Appendix B. Currently,
section 718.103(b) requires that three tracings of the MVV be performed
unless the largest two values of the MVV are within 5 percent of each
other. 20 CFR 718.103(b). Appendix B, however, provides that MVV
results will be considered to have excessive variability if the two
largest values vary by more than 10 percent. The Department proposes to
adopt the 10 percent standard uniformly.
(d) Two comments request the Department to amend section 718.103 to
ensure that a miner's failure to produce a valid MVV value will not
affect the validity of the FEV1 and FVC values. The Department agrees
that the validity of the two tests should be assessed independently.
The proposed change to subsection (a) will highlight the optional
nature of the MVV test. Both comments also suggest that the failure of
a test report to meet all of the requirements of subsection (b), such
as the DOL claim number, should not wholly invalidate a test. Like
other medical evidence, pulmonary function tests will be subject to the
requirement of proposed Sec. 718.101 that they be in ``substantial
compliance'' with the Department's quality standards. In a particular
case, the parties remain free
[[Page 54976]]
to argue that a report's failure to meet certain technical requirements
contained in the quality standards should not necessarily invalidate
the report. The Department does not believe, however, that it would be
appropriate to wholly remove these requirements from its quality
standards.
(e) One commenter observes that pulmonary function tests are not
appropriate in all cases, noting that such testing may pose a danger to
the health of some claimants. Section 718.103 does not affirmatively
require the performance of pulmonary function tests, but merely sets
forth the standards applicable to such studies, if performed. The
Department agrees, however, that there may be cases in which
performance of a pulmonary function test may be medically
contraindicated. As a result, the Department has proposed revising
Sec. 718.104(a)(6) to recognize that a medical report may not be
excluded from consideration simply because the claimant's condition
does not allow a physician to administer a pulmonary function test. The
Department has also proposed reinstating language in
Sec. 718.204(b)(2)(iv) that was inadvertently deleted from its initial
proposal, 62 FR 3377 (Jan. 22, 1997).
20 CFR 718.104
(a) One commenter objects to the requirement in subsection (a)(6)
that all medical reports contain the results of pulmonary function
testing. The commenter notes that in some cases, a miner may be
physically unable to perform a pulmonary function test, or such a test
may be medically contraindicated. The Department agrees, and has
proposed revising subsection (a)(6) in order to recognize this
possibility. When a miner cannot take a pulmonary function test, a
physician writing a medical report must substantiate his conclusion(s)
with other medically acceptable clinical and laboratory diagnostic
techniques. This proposed addition merely recognizes the Department's
longstanding position that pulmonary function tests may be medically
contraindicated. The current regulation at 20 CFR 718.204(c)(4), which
provides that a reasoned medical judgment may establish the presence of
a totally disabling respiratory or pulmonary impairment, expressly
recognizes that pulmonary function tests may be contraindicated.
Similarly, the 1980 discussion accompanying promulgation of 20 CFR
718.103 acknowledged the same point: ``If the physician believes that
pulmonary function testing would impose a risk to the patient's well-
being, the physician should so state and refuse to have the patient
perform the pulmonary function tests.'' 45 FR 13682 (Feb. 29, 1980).
(b) Several commenters request that the regulation recognize that a
treating physician's opinion may be used to establish all elements of a
miner's entitlement to benefits. Although the proposed regulation was
not intended to restrict the use of such a report, the Department has
revised subsection (d) to explicitly list the elements of entitlement
which a treating physician's opinion may establish.
(c) Several commenters suggest that the Department accept a
physician's statement as to the nature and duration of his relationship
with the miner, and the frequency and extent of his treatment of the
miner. The Department agrees that a claimant should not have to produce
additional proof documenting these factors beyond that provided in the
four corners of the physician's report unless the opposing party
supplies credible evidence that demonstrates that the physician's
statement is mistaken. The Department has therefore proposed an
addition to subsection (d)(5) to make its intent clear.
(d) Proposed paragraph (d), which would allow a fact-finder to give
controlling weight to the opinion of a treating physician provided
certain conditions are met, elicited a great deal of comment. Many
commenters supported the proposal, noting that a treating physician has
a greater familiarity with the miner's physical condition than a doctor
who has only seen him once. Others opposed giving special credence to
``small-town'' doctors without special expertise or training in
respiratory or pulmonary disorders. Others simply expressed general
opposition to the proposal. In the preamble accompanying its initial
proposal, the Department explained that the proposed regulation
attempted to codify existing case law and drew on a similar regulation
adopted by the Social Security Administration, 20 CFR 404.1527(d)(2).
See 62 FR 3338, 3342 (Jan. 22, 1997). The Department specifically
invites comment on alternative methods for determining when a treating
physician's opinion is entitled to controlling weight, including
whether to adopt the Social Security Administration's rule.
(e) Several commenters suggest that the proposed subsection (d)(5)
is unnecessary and undermines any Departmental attempt to give a
treating physician's opinion controlling weight. They request that the
Department delete certain language in subsection (d)(5), which requires
the factfinder to consider not only the treating physician's
documentation and reasoning but also the other relevant evidence of
record in determining whether the treating physician's opinion is
entitled to controlling weight. These commenters would have the finder
of fact credit a treating physician's opinion which meets the criteria
in (d)(1)-(4) and is documented and reasoned without regard to the
other relevant evidence of record. Another comment suggests that the
Department has already accomplished this result, in violation of
section 413(b) of the Act, 30 U.S.C. 923(b). The Department does not
accept either suggestion. The purpose of the regulation is not to limit
a factfinder's consideration of any properly admitted medical or other
relevant evidence. Indeed, to do so might result in a mechanistic
crediting of a treating physician's opinion which the courts have
cautioned the Department to avoid. See Sterling Smokeless Coal Co. v.
Akers, 131 F.3d 438, 441 (4th Cir. 1997); 62 FR at 3342 (Jan. 22,
1997). Rather, the proposed regulation would mandate only that the
factfinder recognize that a physician's long-term treatment of the
miner may give that physician additional insight into the miner's
respiratory or pulmonary condition.
(f) Several commenters oppose any rule suggesting treating
physicians' opinions may be given controlling weight. They argue that a
factfinder's evaluation of a medical opinion should be based solely on
the documentation and reasoning of that opinion as well as the
qualifications of the physician. As the Department noted in its initial
notice of proposed rulemaking, 62 FR 3342 (Jan. 22, 1997), special
weight may be given a treating physician's opinion because that
physician has been able to observe the miner over a period of time, and
therefore may have a better understanding of the miner's physical
condition. Although the factfinder must still evaluate the treating
physician's report in light of all of the other relevant evidence of
record, he should nevertheless be aware of the additional insight that
a treating physician may bring to bear on the miner's respiratory or
pulmonary condition.
(g) Some commenters suggest that the ``treating physician'' rule
should be removed from Sec. 718.104 and made a separate regulation. One
suggests that its current placement appears to require that the
treating physician's opinion must conform to the quality standards
applicable to a report of physical examination. The Department intends
that all reports of physical examination, including a report submitted
by the
[[Page 54977]]
miner's treating physician, conform to the quality standards set forth
in Sec. 718.104 if they are to be sufficient to establish or refute
entitlement. The Department thus does not agree that subsection (d),
governing treating physicians' opinions, should be made a separate
regulation.
(h) Several commenters state that the miner should be able to
submit his treating physician's opinion without regard to the
limitation on the amount of evidence each party would be able to submit
under Sec. 725.414. These commenters argue that claimants, who are
often unrepresented at the earliest stages of claims processing, will
submit opinions from their treating physicians that do not conform to
the Department's quality standards. The Department recognizes that the
limitation on documentary medical evidence could have a substantial
impact on unrepresented claimants who submit reports prematurely.
Although the Department cannot agree to provide claimants with the
opportunity to submit additional reports, the Department takes very
seriously its obligation to inform all claimants of the evidentiary
limitations in language that is clear and easily understood. In
addition, as set forth in the proposed revision of Sec. 725.406, the
Department intends to make the objective test results from each miner's
section 413(b) pulmonary evaluation available to his treating physician
at the miner's request. By providing these test results to the treating
physician, the Department hopes to ensure that the ensuing opinion is
as well documented as the other medical opinions of record and meets
the Sec. 718.104 quality standard.
(i) Several commenters argue that the terms ``treating physician''
and ``controlling weight'' are not defined. The intent of subsection
(d), however, is not to create a strict rule to determine the outcome
of a factfinder's evaluation of the medical evidence. Instead, the
Department's goal is simply to require the factfinder to recognize the
additional weight to which a physician's opinion may be entitled, in
light of all of the other relevant evidence of record, where that
physician has observed and treated the claimant over a period of time.
(j) Several commenters object to certain language the Department
used in the preamble of its initial notice of proposed rulemaking to
explain its proposed revisions to Sec. 718.104. In the ``Summary of
Noteworthy Proposed Changes,'' 62 FR 3339 (Jan. 22, 1997), the
Department indicated that in evaluating a treating physician's opinion,
a factfinder ``must'' consider, among other things, the physician's
training and specialization. The Department did not intend to suggest
that a factfinder's failure to consider such factors would necessarily
represent reversible error. Only when a party raises the issue, for
example, in the context of comparing the credentials of physicians
offering contrary opinions, would the factfinder be required to
consider such a factor. Moreover, even under such circumstances, a
physician's training and specialization are only one factor for the
factfinder to weigh in his evaluation of this evidence.
(k) One commenter states that the quality standard applicable to
medical reports should not require that the report include a chest X-
ray. The Department disagrees. A chest X-ray, administered and read in
accordance with Sec. 718.102, is an important component of any
evaluation for pneumoconiosis. Although a physician remains free to
explain an opinion contrary to the medical testing that he conducted or
reviewed, he must nevertheless have the benefit of that testing and
account for its results. The requirement set forth in Sec. 718.101,
that all evidence must be in ``substantial compliance'' with the
applicable quality standards, affords all parties the opportunity to
establish the reliability of any evidence notwithstanding its failure
to strictly conform to the quality standards.
(l) Two commenters request that the Department remove the clause
from subsection (c) that limits the factfinder's use of non-conforming
evidence in cases in which the miner is deceased and the physician is
unavailable to clarify or correct his report. In such cases, the
factfinder may consider a non-conforming medical report only if the
record does not contain another conforming report. In this way, the
Department hopes to ensure that entitlement determinations are based on
the best quality medical evidence possible.
(m) One comment requests that the Department include ``cardio-
pulmonary exercise testing'' as an ``other procedure[]'' under
subsection (b). The Department does not intend that subsection (b)
contain an exclusive list of medically acceptable procedures that may
be used by a physician in the course of a physical examination. A
physician is free to use any test, including cardio-pulmonary exercise
testing, if he believes that it would aid in his evaluation of the
miner.
20 CFR 718.105
(a) One comment directed toward Appendix C is also relevant to
paragraph (c)(6). The comment notes that the correct nomenclature for
partial pressure of oxygen and carbon dioxide is an upper-case ``P'',
not the lower-case ``p'' currently in use. The comment is correct, and
the reference to the partial pressures will be changed.
(b) Four comments oppose proposed paragraph (d), which requires the
claimant to obtain a physician's opinion that a qualifying blood gas
study conducted during a miner's terminal illness reflects a chronic
respiratory or pulmonary condition caused by coal dust exposure. The
comments suggest that qualifying scores should be presumed indicative
of a totally disabling respiratory impairment unless the party opposing
the claim produces evidence linking the test results to some other
condition. While recognizing the concerns expressed by the comments,
the Department nevertheless believes that paragraph (d) imposes an
appropriate evidentiary burden on the claimant. Arterial blood gas
studies conducted during a terminal illness hospitalization may be
especially susceptible to producing low values unrelated to chronic
respiratory or pulmonary disease. Consequently, reliance on such
studies should be predicated on an additional showing that the
qualifying (or abnormal) test results can be medically linked to
chronic lung disease. One comment supported this proposal.
(c) Two comments object to the requirement in paragraph (d) that
the chronic respiratory or pulmonary impairment demonstrated by the
``deathbed'' blood gas study must also be ``related to coal mine dust
exposure.'' The Department agrees. The primary objective behind
paragraph (d) is to ensure a connection between the qualifying blood
gas values and a chronic respiratory or pulmonary impairment, rather
than some other acute pathologic cause incidental to the miner's
terminal illness. Thus, paragraph (d) addresses only the existence of a
chronic respiratory or pulmonary impairment itself, not its cause.
Including a requirement linking the chronic impairment to coal mine
dust exposure is therefore inappropriate for purposes of Sec. 718.105.
The claimant must still prove that any totally disabling respiratory or
pulmonary impairment demonstrated by these blood gas study results
arose out of coal mine employment in order to receive benefits, 20 CFR
718.204(c)(1). Paragraph (d) has been revised to delete
[[Page 54978]]
the phrase ``related to coal mine dust exposure.''
20 CFR 718.106
(a) Five comments urge the Department to restore the current
paragraph (c), 20 CFR 718.106(c), which was omitted from the proposed
regulation. This paragraph provides that the negative findings on a
biopsy are not conclusive evidence that pneumoconiosis is absent, while
positive findings do constitute evidence of the disease. The omission
was inadvertent, and paragraph (c) will be restored in the final rule.
(b) Two comments oppose the requirement in paragraph (a) that the
autopsy protocol must include a gross macroscopic inspection of the
lungs. The comments suggest that the requirement would implicitly
preclude a pathologist from submitting an opinion based exclusively on
a review of microscopic tissue samples. Paragraph (a) was not altered
when the Department proposed changes to Sec. 718.106. This provision
only requires macroscopic findings for purposes of the autopsy itself;
no such findings are required for a reviewing physician. Consequently,
a physician other than the autopsy prosector may submit an opinion
based exclusively on the microscopic tissue samples. No change is
necessary to permit such opinions.
(c) Several comments urge the Department to adopt the criteria for
diagnosing pneumoconiosis by autopsy or biopsy generated by the
American College of Pathologists and Public Health Service in 1979. The
Department has previously declined to promulgate specific pathological
standards for diagnosing pneumoconiosis by autopsy or biopsy. 45 FR at
13684 (Feb. 29, 1980); 48 FR at 24273 (May 31, 1983). Furthermore, the
record does not contain any evidence addressing, or establishing, a
consensus in the medical community about the accepted standards for
diagnosing pneumoconiosis by autopsy or biopsy. Although the comment
refers to Kleinerman et al., ``Pathologic Criteria for Assessing Coal
Workers' Pneumoconiosis,'' in the Archives of Pathology and Laboratory
Medicine (June 1979), the record does not establish whether this
article reflects the current prevailing standards for diagnosing
pneumoconiosis. The recommendation is therefore rejected.
20 CFR 718.107
(a) One comment suggests modifying the reference to ``respiratory
impairment'' in paragraph (a) to ``respiratory or pulmonary
impairment.'' The Department accepts this suggestion because the
current paragraph (a) refers to ``respiratory or pulmonary
impairment,'' and the omission of ``pulmonary'' was inadvertent.
Another comment recommended adding disability and disability causation
to the list of issues for which a party may submit ``other medical
evidence.'' Paragraph (a) is unchanged from the current provision,
except as described in the previous discussion, and satisfactorily sets
forth the general purposes for which ``other medical evidence'' may be
offered. The suggested change is therefore unnecessary.
(b) One comment supports the addition of proposed paragraph (b).
Subpart C
20 CFR 718.201
(a) In its initial notice of proposed rulemaking, 62 FR 3343, 3376
(Jan. 22, 1997), the Department proposed revising the definition of the
term ``pneumoconiosis'' to recognize the progressive nature of the
disease. The Department also proposed clarifying the existing
definition to make clear that obstructive lung disease may fall within
the definition of pneumoconiosis if it is shown to have arisen from
coal mine employment. The proposal would not alter the current
regulations' requirement that each miner bear the burden of proving
that he has pneumoconiosis, 20 CFR 718.403, 725.202(b); proposed
Secs. 725.103, 725.202(d)(2)(i). Thus, notwithstanding the proposed
revision, in order to demonstrate that he has pneumoconiosis, each
miner would be required to prove that his lung disease arose out of
coal mine employment. If a miner's chest X-rays, autopsy or biopsy
demonstrate the presence of the disease, and the miner has at least ten
years of coal mine employment, he is aided by a statutory presumption
that his pneumoconiosis arose out of coal mine employment. 30 U.S.C.
921(c)(1). If, however, the miner fails to demonstrate the existence of
pneumoconiosis by means of X-ray, biopsy or autopsy, he must prove that
his lung disease arose out of coal mine employment in order to carry
his burden of proof and establish that he has pneumoconiosis.
A number of commenters representing coal mine operators and the
insurance industry object strongly to both revisions, arguing that the
Department lacks the authority to elaborate on the statute's definition
of pneumoconiosis, and that, in any event, the Department had violated
the statute by failing to consult with the National Institute for
Occupational Safety and Health (NIOSH) before proposing the changes. 30
U.S.C. 902(f)(1)(D). The commenters also argue that the Department's
proposed revision lacks a sound medical basis and would therefore
unjustifiably increase the number of claims approved. In support of
their arguments, these commenters presented testimony at the
Department's Washington, DC, hearing from a panel of physicians with
expertise in pulmonary medicine. Transcript, Hearing on Proposed
Changes to the Black Lung Program Regulations (July 22, 1997), pp. 19-
83.
The Department also received comments, as well as testimony,
supporting the proposed changes from black lung associations, miners,
and several physicians with expertise in pulmonary medicine. Among the
favorable comments was one from NIOSH, which approved both aspects of
the Department's proposed revision to Sec. 718.201. In so doing, NIOSH
referenced its own 1995 publication, the same document that the
Department had cited in its initial notice of proposed rulemaking,
``National Institute for Occupational Safety and Health, Occupational
Exposure to Respirable Coal Mine Dust,'' Secs. 4.1.2, 4.2.2 et seq.
(1995). 62 FR 3343 (Jan. 22, 1997).
NIOSH was created by the Occupational Safety and Health Act ``in
order to carry out the policy set forth in section 651'' of that Act as
well as to perform certain functions in support of the Occupational
Safety and Health Administration. 29 U.S.C. 671. Among its other
provisions, section 651 encourages the Occupational Safety and Health
Administration to ``explor[e] ways to discover latent diseases,
establish [] causal connections between diseases and work in
environmental conditions, and conduct [] other research relating to
health problems.'' 29 U.S.C. 651(b)(6). Accordingly, Congress created
NIOSH as a source of expertise in occupational disease and as an expert
in the analysis of occupational disease research. Given the widely
divergent comments received from medical professionals on this proposed
regulation, the Department sought additional guidance from NIOSH by
providing it with all of the comments and testimony the Department had
received relevant to the proposed revisions to Sec. 718.201. The
Department requested that NIOSH advise it whether any of the material
altered that agency's original opinion.
NIOSH concluded as follows:
[[Page 54979]]
The unfavorable comments received by DOL do not alter our
previous position: NIOSH scientific analysis supports the proposed
definitional changes. Research indicates that the proposed changes
are reasonable and could be incorporated to further refine the
definition of pneumoconiosis in the BLBA regulations.
Letter from Dr. Paul Schulte, Director, Education and Information
Division (Dec. 7, 1998). In addition to the 1995 NIOSH publication, Dr.
Schulte cited several recent studies and other sources: ``Coal mining
and chronic obstructive pulmonary disease: a review of the evidence''
[Coggon and Newman-Taylor 1998]; ``The British Coal Respiratory Disease
Litigation'' [Judgment of Mr. Justice Turner]; ``Progression of simple
pneumoconiosis in ex-coalminers after cessation of exposure to coalmine
dust'' [Donnan et al. 1997]; ``Adverse effects of crystalline silica
exposure'' [American Thoracic Society (ATS) 1997]; ``Risk of silicosis
in a Colorado mining community'' [Kriess and Zehn 1996]; and ``Risk of
silicosis in a cohort of white South African gold miners'' [Hnizdo and
Sluis-Cremer 1993]. He concluded as follows:
These publications provide additional support for the NIOSH
position stated in the August 20, 1997 letter: ``NIOSH continues to
support the proposed amendment to Section 718.201 to include chronic
obstructive pulmonary disease in the definition of pneumoconiosis;
NIOSH also supports the revision of the definition of pneumoconiosis
to reflect the scientific evidence that pneumoconiosis is an
irreversible, progressive condition that may become detectable only
after cessation of coal mine employment, in some cases.''
Given this NIOSH review and conclusion, the Department sees no
scientific or legal basis upon which to alter its original proposal. To
the extent that the Department was required to consult with NIOSH, it
has now done so. Finally, as addressed elsewhere in this proposal, the
Department believes that it possesses the statutory authority to
promulgate a legislative regulation defining the term
``pneumoconiosis.'' See Old Ben Coal Co. v. Scott, 144 F.3d 1045, 1048
(7th Cir. 1998), citing Peabody Coal Co. v. Spese, 117 F.3d 1001, 1009-
1010 (7th Cir. 1997) (en banc).
(b) One commenter objects to the proposed definition of ``legal
pneumoconiosis'' on the ground that Sec. 718.202(a)(2) does not contain
the requirement that the covered disease must be a ``dust'' disease of
the lung. The commenter also believes that this definition would
include all obstructive pulmonary disease. The Department disagrees
with both points. Section 718.201 begins in paragraph (a) with the
statutory definition of pneumoconiosis, stating that pneumoconiosis
means a chronic ``dust'' disease of the lung and its sequelae.
Paragraph (a)(2) is a subdivision of the introductory paragraph and in
no way contradicts it. In fact, by its very terms, the proposed
definition of pneumoconiosis would cover only that lung disease arising
out of coal mine employment, i.e., lung disease significantly related
to, or substantially aggravated by, dust exposure in coal mine
employment. Sec. 718.201(b).
(c) Two commenters argue that Congress rejected an amendment to the
definition of pneumoconiosis that would have included obstructive lung
disorders, and that the Department therefore lacks the authority to
make such a change. Above, the Department explained that Congress's
consideration of, but failure to enact, legislation on particular
subjects does not bar the Department from promulgating regulations on
those subjects, provided the Department is acting within the scope of
Congress's grant of regulatory authority. Thus, the Department does not
agree that Congressional inaction renders invalid its proposed
amendment of the definition of ``pneumoconiosis.''
20 CFR 718.204
(a) In reviewing the comments submitted in response to the initial
notice of proposed rulemaking, the Department realized that it had
inadvertently omitted language from the current version of 20 CFR
718.204(c)(4) setting out circumstances under which a claimant may
establish total disability by means of a medical report. The Department
intended no change in the regulation's meaning and has restored the
omitted language to proposed Sec. 718.204(b)(2)(iv).
(b) A number of commenters object to the Department's proposed
amendment to subsection (a), while others support it. That revision is
intended to ensure that disabling nonrespiratory conditions are not
considered a bar to entitlement when the miner also suffers from
totally disabling pneumoconiosis. As the Department explained in its
initial notice of proposed rulemaking, the revision announces the
Department's preference for the Sixth Circuit's decision in
Youghiogheny & Ohio Coal Co. v. McAngues, 996 F.2d 130 (6th Cir. 1993),
cert. den., 510 U.S. 1040 (1994), over the Seventh Circuit's decision
in Peabody Coal Co. v. Vigna, 22 F.3d 1388 (7th Cir. 1994). 62 FR 3344-
45 (Jan. 22, 1997). After preparation of the Department's proposal, the
Sixth Circuit held, for the first time in a Part 718 case, that a miner
may not be denied black lung benefits simply because he may also be
totally disabled by a coexisting non-respiratory impairment. Cross
Mountain Coal Co., Inc. v. Ward, 93 F.3d 211, 216-217 (6th Cir. 1996).
The commenters have provided no basis upon which to alter the
Department's original proposal.
(c) A number of commenters object to the Department's proposal to
revise subsection (b)(1) to codify the Department's position that a
miner is entitled to benefits only if his respiratory or pulmonary
impairment is totally disabling. The commenters urge that the
Department adopt a ``whole person'' approach, allowing an award of
benefits if pneumoconiosis contributed at least in part to the miner's
overall disability, considering both respiratory and nonrespiratory
impairments. Although the commenters argue that the Department's
position violates the statute, the Third and Fourth Circuits have
reached a contrary conclusion. Beatty v. Danri Corp. & Triangle
Enterprises, 49 F.3d 993 (3d Cir. 1995); Jewell Smokeless Coal Corp. v.
Street, 21 F.3d 241 (4th Cir. 1994). Because the commenters offer no
other basis upon which to amend the Department's proposal, subsection
(b)(1) has not been changed.
(d) A number of commenters take issue with the Department's
proposal to define disability causation in subsection (c). Several
commenters state that the Department has no authority to issue such a
regulation, suggesting that the statutory language is clear. The
Department disagrees. The statute authorizes the payment of benefits
``[i]n the case of total disability of a miner due to pneumoconiosis,''
30 U.S.C. 922(a)(1), and explicitly provides that ``[t]he term ``total
disability'' has the meaning given it by regulations * * * of the
Secretary of Labor under part C of this title * * *.'' 30 U.S.C.
902(f)(1). Even absent such an explicit grant of rulemaking authority,
Congress' use of the broad phrase ``due to'' leaves significant
questions in resolving the issue of disability causation. In Atlanta
College of Medical and Dental Careers, Inc. v. Riley, 987 F.2d 821
(1993), the D.C. Circuit noted that the Secretary of Education was
authorized to promulgate interpretative regulations under the Student
Loan Default Prevention Initiative Act. That statute authorized the
Secretary to calculate a default rate from participating schools, but
required him to exclude loans which ``due to improper servicing or
collection, would result in an inaccurate or incomplete calculation.''
Addressing Congress' use of the phrase ``due to,'' the court held:
[[Page 54980]]
And must the school show ``but for'' causation, proximate
causation or merely some reasonable link? The statute itself
provides no answers to these riddles; accordingly, under Chevron's
second step, we would defer to any reasonable interpretation of the
``due to'' language that the Secretary proffered. See also Jerry
Mashaw, A Comment on Causation, Law Reform, and Guerilla Warfare, 73
Geo. L. Rev. 1393, 1396 (1985) (identifying the ``cause'' of
something necessarily implicates a policy choice).
Id. at 830. The Department's definition of disability causation under
the Black Lung Benefits Act is similarly necessary and well within the
scope of its regulatory authority.
Other commenters argue that the Department has selected the wrong
definition. Several commenters suggest that the Department delete the
word ``substantially'' from paragraph (c)(1). Another asks that the
standard be ``due at least in part.'' One commenter requests that the
Department add the word ``substantially'' to paragraphs (c)(1)(i) and
(c)(1)(ii). Several comments suggest that the term ``substantially
contributing'' is undefined, and urge that the Department set a
percentage of disability as the threshold, while another commenter asks
that the Department use the term ``actual contributing cause'' in order
to bar the award of benefits where pneumoconiosis has made only a de
minimis contribution to total disability.
The Department discussed its selection of the ``substantially
contributing cause'' standard in its initial notice of proposed
rulemaking. 62 FR 3345 (Jan. 22, 1997). The Department explained that
its selection was intended to codify a body of caselaw from various
federal appellate courts that differed very little in determining
disability causation. In addition, the proposal paralleled the standard
used by the Department to determine whether a miner's death was caused
by pneumoconiosis. Because the language of the death standard is a
direct reflection of Congressional intent, see 48 FR 24275-24278 (May
31, 1983), the Department believes that it should be used for
disability causation as well. Finally, the Department does not agree
that a percentage threshold is appropriate. As the Department
previously explained, the ``substantially contributing cause'' standard
requires that pneumoconiosis make a tangible and actual contribution to
a miner's disability. The standard is also further defined in the
proposed regulation. It requires that pneumoconiosis must either have
an adverse effect on the miner's respiratory or pulmonary condition or
worsen an already totally disabling respiratory or pulmonary
impairment. Whether a particular miner meets the ``substantially
contributing cause'' standard is a matter to be resolved based on the
medical evidence submitted in each case.
Finally, several commenters suggest that the Department's proposal
will allow compensation where a miner's totally disabling respiratory
impairment has been caused by cigarette smoking. Neither the Black Lung
Benefits Act, nor the court of appeals decisions, nor the Department's
proposed regulation allows benefits to be awarded where a miner's
totally disabling respiratory impairment is caused solely by cigarette
smoking. The courts have held irrelevant, however, the existence of
causes of a miner's total respiratory or pulmonary disability in
addition to pneumoconiosis. See Jonida Trucking, Inc. v. Hunt, 124 F.3d
739, 744 (6th Cir. 1997) (coexisting heart disease). In such a case,
the miner meets the statutory and regulatory criteria for an award of
benefits.
20 CFR 718.205
(a) Several comments request that the Department reinstate
unrelated death benefits, that is, benefits to surviving spouses of
miners who were totally disabled due to pneumoconiosis at the time of
their death but who did not die due to pneumoconiosis. Although such
benefits were formerly available, Congress amended the Act in 1981 to
require that a surviving spouse who filed her claim on or after January
1, 1982 establish that the miner died due to pneumoconiosis. Pub. L.
97-119, 95 Stat. 1635, Sec. 203(a)(2), (3). The Department cannot issue
regulations contrary to the expressed will of Congress.
Another comment, however, suggests that the Department has done
just that by proposing that a surviving spouse may establish death due
to pneumoconiosis by proving that pneumoconiosis hastened the miner's
death. The Department disagrees. Rather, the Department has simply
proposed codifying a standard that has been unanimously adopted by the
federal courts of appeals, a fact recognized by other commenters. In
addition to the Third, Fourth, Sixth, and Seventh Circuit decisions
cited in the initial notice of proposed rulemaking, 62 FR 3345-3346
(Jan. 22, 1997), the Tenth and Eleventh Circuits have also deferred to
the Director's interpretation of the current regulation, and announced
their support for the standard that the Department is proposing to
codify. Northern Coal Co. v. Director, Office of Workers' Compensation
Programs, 100 F.3d 871, 874 (10th Cir.1996); Bradberry, v. Director,
Office of Workers' Compensation Programs, 117 F.3d 1361, 1365-1366
(11th Cir. 1997). The Department's proposal thus does no more than
recognize the decisions of appellate courts with jurisdiction over more
than 90 percent of the claims filed under the Black Lung Benefits Act.
The suggestion that the Department has violated Congressional intent is
simply incorrect.
(b) One commenter asks the Department to apply the standard set
forth in subsection (b)(2) to claims filed on or after January 1, 1982,
the effective date of the Black Lung Benefits Amendments of 1981.
Subsection (b)(2) permits an award of benefits in a survivor's claim
filed before January 1, 1982 if death was due to multiple causes,
including pneumoconiosis, and it is not medically feasible to
distinguish which disease caused death or the extent to which
pneumoconiosis contributed to the miner's death. This provision is
derived in substantial part from the presumption set forth in section
411(c)(2) of the Act, 30 U.S.C. 921(c)(2), and implemented by 20 CFR
718.304. Under section 411(c)(2), a deceased miner with ten or more
years of coal mine employment, who died from a respirable disease, is
presumed to have died due to pneumoconiosis. In implementing this
provision, the Secretary added Sec. 718.303(a)(1) to the regulations,
allowing death to be found due to a respirable disease if such disease
was one of several causes of the miner's death and it is not feasible
to determine which disease caused death or the extent to which the
respirable disease contributed to the cause of death. Section
718.205(b)(2) permitted an award under similar circumstances in cases
in which the miner had less than 10 years of coal mine employment, but
the survivor had established that pneumoconiosis was one of the
multiple causes of death. In 1981, Congress eliminated the section
411(c)(2) presumption for survivors' claims filed on or after January
1, 1982. Pub. L. 97-119, Sec. 202(b)(1). In promulgating regulations to
effectuate Congress's intent, the Department applied the same
limitation to subsection (b)(2). See comment (p), 48 FR 24278 (May 31,
1983). Because subsection (b)(2) is so closely connected with the
section 411(c)(2) presumption, the Department continues to believe that
it may not apply this regulatory provision to claims filed on or after
January 1, 1982.
[[Page 54981]]
Appendix B to Part 718
(a) The proposed changes to Appendix B are designed to implement
the Department's proposed requirement that physicians use the flow-
volume loop in reporting the results of pulmonary function tests. See
Explanation of proposed Sec. 718.103. The Department invites comment on
these changes.
(b) A number of commenters suggest that one Appendix provision is
unnecessarily restrictive. It requires that the two highest FEV1
results of the three acceptable tracings agree within 5 percent or 100
ml, whichever is greater. Appendix B(2)(ii)(G). They suggest that the
standard either be eliminated entirely, or that it be replaced with a
variability limit of 10 percent or 200 ml. One comment recommends that
the Department should have a separate standard for ensuring the
reliability of FVC results. As proposed, Appendix B limits the
variability only of FEV1 and MVV results.
The Department is reluctant to eliminate the Appendix B(2)(ii)(G)
standard entirely; the standard provides a baseline measurement which
serves to guarantee the reproducibility, and thus the validity, of each
conforming pulmonary function study. However, the Department recognizes
that there may be individuals who are physically unable to produce
results that fall within the 5 percent limit, but whose results are, in
the opinion of the physician administering the test, a valid reflection
of the individual's best effort to perform the test. Accordingly, the
Department invites comment as to how to maintain a standard that
guarantees the reproducibility of the FEV1 and FVC values, but also
allows consideration of valid FEV1 results in excess of the current 5
percent requirement.
(c) Several commenters argue that the Appendix B tables are too
stringent and should be revised. These tables set forth pulmonary
function test results which may establish that a miner's respiratory or
pulmonary impairment is totally disabling. The Black Lung Benefits
Reform Act of 1977 required the Department to consult with the National
Institute for Occupational Safety and Health in the development of
criteria for medical tests that accurately reflect total disability in
coal miners. 30 U.S.C. 902(f)(1)(D). On April 25, 1978, the Department
proposed the pulmonary function test criteria set forth in Appendix B,
setting the ``qualifying'' values for the FEV1 and MVV test at 60
percent of normal pulmonary function, as adjusted for sex, height, and
age. 43 FR 17730-31 (Apr. 25, 1978). When the Department published the
final Part 718 rules on February 29, 1980, it added tables for the FVC
test. 45 FR 13703-06 (Feb. 29, 1980). The Department also responded to
comments urging that the qualifying values be reduced, observing that
although there was no consensus on the correct values, the record
contained substantial support from experts for the 60 percent figure.
Id. at 13711. The Department did not re-propose the Appendix B tables
in its initial notice of proposed rulemaking, see 62 FR 3373 (Jan. 22,
1997) (noting that the tables in Appendix B remain unchanged), and the
commenters offer no medical support for the request that they be
revised. Consequently, the Department has not proposed any revision of
the table values.
20 CFR Part 725--Claims for Benefits Under Part C of Title IV of
the Federal Mine Safety and Health Act, As Amended
Subpart A--General
20 CFR 725.2
(a) The Department has made several technical changes to the
language of the proposed regulation to make the regulation easier to
read.
(b) This proposal changes Sec. 725.2(c) to add Sec. 725.351 to the
list of amended regulations which will apply only to claims filed after
the effective date of the final rule. The Department's proposal
requires the district director's development of a complete evidentiary
record identifying the proper responsible operator. Once a case is
referred to the Office of Administrative Law Judges, neither the
Director, OWCP, nor a potentially liable operator identified by the
district director will be able to submit any additional evidence on
issues relevant to the responsible operator question. For example, only
while a claim is pending before the district director may a potentially
liable operator contest that it was an operator after June 30, 1973,
that it employed the miner for one year, or that the miner's employment
included at least one working day after December 31, 1969,
Sec. 725.408. Accordingly, the district director must be able to obtain
all of the information necessary to meet the Department's burden of
proof under Sec. 725.495.
To aid the district director in gathering such information, this
proposal revises and streamlines Sec. 725.351, which grants district
directors the power to issue subpoenas duces tecum. A district director
will no longer be required to seek written approval from the Director,
OWCP, prior to issuing such a subpoena. See explanation of
Sec. 725.351. Because the revised regulations governing the
identification of responsible operators, Secs. 725.407-.408, will apply
only to newly filed claims, however, the district director's new
authority under Sec. 725.351 must be similarly limited. Accordingly,
Sec. 725.351 is added to the list of amended regulations which will not
be effective with respect to claims pending on the effective date of
the final rule.
(c) A number of comments request that the Department make the final
rule applicable to all pending claims. As the Department explained in
its original proposal, 62 FR 3347-48 (Jan. 22, 1997), however, it lacks
the statutory authority to make many changes retroactive. In addition,
certain changes, such as the limitation on the quantity of medical
evidence, would seriously disrupt the adjudication of currently pending
claims if they were made universally applicable.
(d) A number of commenters believe that the Department lacks the
authority to make any of the changes retroactive, particularly because
those changes will apply to subsequent claims filed by miners who have
previously been denied benefits. They argue that subsequent claims are
typically based on employment that ended many years ago, and that the
insurance industry is not permitted to charge additional premiums in
order to cover the increased liability that will result under the
Department's proposal. In support of their argument that the Department
is not permitted to effect such a change, they cite the Contract Clause
of the United States Constitution. The Contract Clause is in Section 10
of Article I, which is a series of prohibitions against actions by
state governments. In relevant part, it states that ``[n]o State shall
* * * pass any Bill of Attainder, ex post facto Law, or Law impairing
the Obligation of Contracts, or grant any Title of Nobility.'' The
Supreme Court has observed that ``[i]t could not justifiably be claimed
that the Contract Clause applies, either by its own terms or by
convincing historical evidence, to actions of the National
Government.'' Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 467
U.S. 717, 732, n. 9 (1984). Thus, the Contract Clause does not bar
Congress from enacting any legislation. Similarly, the Contract Clause
is inapplicable to the Secretary's rulemaking by its very terms, and
the comment has cited no precedent to the contrary.
Moreover, the Department does not agree that its proposed
rulemaking results in the impairment of any contracts. At the hearing
held in Washington, D.C., on July 22-23, 199 |
