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
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 55015-55064]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08oc99-53]
[[pp. 55015-55064]] Regulations Implementing the Federal Coal Mine Health and Safety
Act of 1969, as Amended
[[Continued from page 55014]]
[[Page 55015]]
(2) Where 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 cause of
death, or
(3) Where the presumption set forth at Sec. 718.304 is applicable,
or
(4) Where either of the presumptions set forth at Sec. 718.303 or
Sec. 718.305 is applicable and has not been rebutted.
(5) Where the cause of death is significantly related to or
aggravated by pneumoconiosis.
(c) For the purpose of adjudicating survivors' claims filed on or
after January 1, 1982, death will be considered to be due to
pneumoconiosis if any of the following criteria is met:
(1) Where competent medical evidence establishes that
pneumoconiosis was the cause of the miner's death, or
(2) Where pneumoconiosis was a substantially contributing cause or
factor leading to the miner's death or where the death was caused by
complications of pneumoconiosis, or
(3) Where the presumption set forth at Sec. 718.304 is applicable.
(4) However, survivors are not eligible for benefits where the
miner's death was caused by a traumatic injury or the principal cause
of death was a medical condition not related to pneumoconiosis, unless
the evidence establishes that pneumoconiosis was a substantially
contributing cause of death.
(5) Pneumoconiosis is a ``substantially contributing cause'' of a
miner's death if it hastens the miner's death.
(d) To minimize the hardships to potentially entitled survivors due
to the disruption of benefits upon the miner's death, survivors' claims
filed on or after January 1, 1982, shall be adjudicated on an expedited
basis in accordance with the following procedures. The initial burden
is upon the claimant, with the assistance of the district director, to
develop evidence which meets the requirements of paragraph (c) of this
section. Where the initial medical evidence appears to establish that
death was due to pneumoconiosis, the survivor will receive benefits
unless the weight of the evidence as subsequently developed by the
Department or the responsible operator establishes that the miner's
death was not due to pneumoconiosis as defined in paragraph (c).
However, no such benefits shall be found payable before the party
responsible for the payment of such benefits shall have had a
reasonable opportunity for the development of rebuttal evidence. See
Sec. 725.414 concerning the operator's opportunity to develop evidence
prior to an initial determination.
Sec. 718.206 Effect of findings by persons or agencies.
Decisions, statements, reports, opinions, or the like, of agencies,
organizations, physicians or other individuals, about the existence,
cause, and extent of a miner's disability, or the cause of a miner's
death, are admissible. If properly submitted, such evidence shall be
considered and given the weight to which it is entitled as evidence
under all the facts before the adjudication officer in the claim.
Subpart D--Presumptions Applicable to Eligibility Determinations
Sec. 718.301 Establishing length of employment as a miner.
The presumptions set forth in Secs. 718.302, 718.303, 718.305 and
718.306 apply only if a miner worked in one or more coal mines for the
number of years required to invoke the presumption. The length of the
miner's coal mine work history must be computed as provided by 20 CFR
725.101(a)(32).
Sec. 718.302 Relationship of pneumoconiosis to coal mine employment.
If a miner who is suffering or suffered from pneumoconiosis was
employed for ten years or more in one or more coal mines, there shall
be a rebuttable presumption that the pneumoconiosis arose out of such
employment. (See Sec. 718.203.)
Sec. 718.303 Death from a respirable disease.
(a)(1) If a deceased miner was employed for ten or more years in
one or more coal mines and died from a respirable disease, there shall
be a rebuttable presumption that his or her death was due to
pneumoconiosis.
(2) Under this presumption, death shall be found due to a
respirable disease in any case in which the evidence establishes that
death was due to multiple causes, including a respirable disease, and
it is not medically feasible to distinguish which disease caused death
or the extent to which the respirable disease contributed to the cause
of death.
(b) The presumption of paragraph (a) of this section may be
rebutted by a showing that the deceased miner did not have
pneumoconiosis, that his or her death was not due to pneumoconiosis or
that pneumoconiosis did not contribute to his or her death.
(c) This section is not applicable to any claim filed on or after
January 1, 1982.
Sec. 718.304 Irrebuttable presumption of total disability or death due
to pneumoconiosis.
There is an irrebuttable presumption that a miner is totally
disabled due to pneumoconiosis, that a miner's death was due to
pneumoconiosis or that a miner was totally disabled due to
pneumoconiosis at the time of death, if such miner is suffering or
suffered from a chronic dust disease of the lung which:
(a) When diagnosed by chest X-ray (see Sec. 718.202 concerning the
standards for X-rays and the effect of interpretations of X-rays by
physicians) yields one or more large opacities (greater than 1
centimeter in diameter) and would be classified in Category A, B, or C
in:
(1) The ILO-U/C International Classification of Radiographs of the
Pneumoconioses, 1971, or subsequent revisions thereto; or
(2) The International Classification of the Radiographs of the
Pneumoconioses of the International Labour Office, Extended
Classification (1968) (which may be referred to as the ``ILO
Classification (1968)''); or
(3) The Classification of the Pneumoconioses of the Union
Internationale Contra Cancer/Cincinnati (1968) (which may be referred
to as the ``UICC/Cincinnati (1968) Classification''); or
(b) When diagnosed by biopsy or autopsy, yields massive lesions in
the lung; or
(c) When diagnosed by means other than those specified in
paragraphs (a) and (b) of this section, would be a condition which
could reasonably be expected to yield the results described in
paragraph (a) or (b) of this section had diagnosis been made as therein
described: Provided, however, That any diagnosis made under this
paragraph shall accord with acceptable medical procedures.
Sec. 718.305 Presumption of pneumoconiosis.
(a) If a miner was employed for fifteen years or more in one or
more underground coal mines, and if there is a chest X-ray submitted in
connection with such miner's or his or her survivor's claim and it is
interpreted as negative with respect to the requirements of
Sec. 718.304, and if other evidence demonstrates the existence of a
totally disabling respiratory or pulmonary impairment, then there shall
be a rebuttable presumption that such miner is totally disabled due to
pneumoconiosis, that such miner's death was due to pneumoconiosis, or
that at the time of death such miner was totally disabled by
pneumoconiosis. In
[[Page 55016]]
the case of a living miner's claim, a spouse's affidavit or testimony
may not be used by itself to establish the applicability of the
presumption. The Secretary shall not apply all or a portion of the
requirement of this paragraph that the miner work in an underground
mine where it is determined that conditions of the miner's employment
in a coal mine were substantially similar to conditions in an
underground mine. The presumption may be rebutted only by establishing
that the miner does not, or did not, have pneumoconiosis, or that his
or her respiratory or pulmonary impairment did not arise out of, or in
connection with, employment in a coal mine.
(b) In the case of a deceased miner, where there is no medical or
other relevant evidence, affidavits of persons having knowledge of the
miner's condition shall be considered to be sufficient to establish the
existence of a totally disabling respiratory or pulmonary impairment
for purposes of this section.
(c) The determination of the existence of a totally disabling
respiratory or pulmonary impairment, for purposes of applying the
presumption described in this section, shall be made in accordance with
Sec. 718.204.
(d) Where the cause of death or total disability did not arise in
whole or in part out of dust exposure in the miner's coal mine
employment or the evidence establishes that the miner does not or did
not have pneumoconiosis, the presumption will be considered rebutted.
However, in no case shall the presumption be considered rebutted on the
basis of evidence demonstrating the existence of a totally disabling
obstructive respiratory or pulmonary disease of unknown origin.
(e) This section is not applicable to any claim filed on or after
January 1, 1982.
Sec. 718.306 Presumption of entitlement applicable to certain death
claims.
(a) In the case of a miner who died on or before March 1, 1978, who
was employed for 25 or more years in one or more coal mines prior to
June 30, 1971, the eligible survivors of such miner whose claims have
been filed prior to June 30, 1982, shall be entitled to the payment of
benefits, unless it is established that at the time of death such miner
was not partially or totally disabled due to pneumoconiosis. Eligible
survivors shall, upon request, furnish such evidence as is available
with respect to the health of the miner at the time of death, and the
nature and duration of the miner's coal mine employment.
(b) For the purpose of this section, a miner will be considered to
have been ``partially disabled'' if he or she had reduced ability to
engage in work as defined in Sec. 718.204(b).
(c) In order to rebut this presumption the evidence must
demonstrate that the miner's ability to perform work as defined in
Sec. 718.204(b) was not reduced at the time of his or her death or that
the miner did not have pneumoconiosis.
(d) None of the following items, by itself, shall be sufficient to
rebut the presumption:
(1) Evidence that a deceased miner was employed in a coal mine at
the time of death;
(2) Evidence pertaining to a deceased miner's level of earnings
prior to death;
(3) A chest X-ray interpreted as negative for the existence of
pneumoconiosis;
(4) A death certificate which makes no mention of pneumoconiosis.
Appendix A to Part 718--Standards for Administration and
Interpretation of Chest Roentgenograms (X-rays)
The following standards are established in accordance with
sections 402(f)(1)(D) and 413(b) of the Act. They were developed in
consultation with the National Institute for Occupational Safety and
Health. These standards are promulgated for the guidance of
physicians and medical technicians to insure that uniform procedures
are used in administering and interpreting X-rays and that the best
available medical evidence will be submitted in connection with a
claim for black lung benefits. If it is established that one or more
standards have not been met, the claims adjudicator may consider
such fact in determining the evidentiary weight to be assigned to
the physician's report of an X-ray.
(1) Every chest roentgenogram shall be a single postero-anterior
projection at full inspiration on a 14 by 17 inch film. Additional
chest films or views shall be obtained if they are necessary for
clarification and classification. The film and cassette shall be
capable of being positioned both vertically and horizontally so that
the chest roentgenogram will include both apices and costophrenic
angles. If a miner is too large to permit the above requirements,
then a projection with minimum loss of costophrenic angle shall be
made.
(2) Miners shall be disrobed from the waist up at the time the
roentgenogram is given. The facility shall provide a dressing area
and, for those miners who wish to use one, the facility shall
provide a clean gown. Facilities shall be heated to a comfortable
temperature.
(3) Roentgenograms shall be made only with a diagnostic X-ray
machine having a rotating anode tube with a maximum of a 2 mm source
(focal spot).
(4) Except as provided in paragraph (5), roentgenograms shall be
made with units having generators which comply with the following:
(a) the generators of existing roentgenographic units acquired by
the examining facility prior to July 27, 1973, shall have a minimum
rating of 200 mA at 100 kVp; (b) generators of units acquired
subsequent to that date shall have a minimum rating of 300 mA at 125
kVp.
Note: A generator with a rating of 150 kVp is recommended.
(5) Roentgenograms made with battery-powered mobile or portable
equipment shall be made with units having a minimum rating of 100 mA
at 110 kVp at 500 Hz, or 200 mA at 110 kVp at 60 Hz.
(6) Capacitor discharge, and field emission units may be used.
(7) Roentgenograms shall be given only with equipment having a
beam-limiting device which does not cause large unexposed
boundaries. The use of such a device shall be discernible from an
examination of the roentgenogram.
(8) To insure high quality chest roentgenograms:
(i) The maximum exposure time shall not exceed 1/20 of a second
except that with single phase units with a rating less than 300 mA
at 125 kVp and subjects with chest over 28 cm postero-anterior, the
exposure may be increased to not more than 1/10 of a second;
(ii) The source or focal spot to film distance shall be at least
6 feet;
(iii) Only medium-speed film and medium-speed intensifying
screens shall be used;
(iv) Film-screen contact shall be maintained and verified at 6-
month or shorter intervals;
(v) Intensifying screens shall be inspected at least once a
month and cleaned when necessary by the method recommended by the
manufacturer;
(vi) All intensifying screens in a cassette shall be of the same
type and made by the same manufacturer;
(vii) When using over 90 kV, a suitable grid or other means of
reducing scattered radiation shall be used;
(viii) The geometry of the radiographic system shall insure that
the central axis (ray) of the primary beam is perpendicular to the
plane of the film surface and impinges on the center of the film.
(9) Radiographic processing:
(i) Either automatic or manual film processing is acceptable. A
constant time-temperature technique shall be meticulously employed
for manual processing.
(ii) If mineral or other impurities in the processing water
introduce difficulty in obtaining a high-quality roentgenogram, a
suitable filter or purification system shall be used.
(10) Before the miner is advised that the examination is
concluded, the roentgenogram shall be processed and inspected and
accepted for quality by the physician, or if the physician is not
available, acceptance may be made by the radiologic technologist. In
a case of a substandard roentgenogram, another shall be made
immediately.
(11) An electric power supply shall be used which complies with
the voltage, current, and regulation specified by the manufacturer
of the machine.
(12) A densitometric test object may be required on each
roentgenogram for an objective evaluation of film quality at the
discretion of the Department of Labor.
(13) Each roentgenogram made under this Appendix shall be
permanently and legibly
[[Page 55017]]
marked with the name and address of the facility at which it is
made, the miner's DOL claim number, the date of the roentgenogram,
and left and right side of film. No other identifying markings shall
be recorded on the roentgenogram.
Appendix B to Part 718--Standards for Administration and
Interpretation of Pulmonary Function Tests--Tables B1, B2, B3, B4,
B5, B6
The following standards are established in accordance with
section 402(f)(1)(D) of the Act. They were developed in consultation
with the National Institute for Occupational Safety and Health
(NIOSH). These standards are promulgated for the guidance of
physicians and medical technicians to insure that uniform procedures
are used in administering and interpreting ventilatory function
tests and that the best available medical evidence will be submitted
in support of a claim for black lung benefits. If it is established
that one or more standards have not been met, the claims adjudicator
may consider such fact in determining the evidentiary weight to be
given to the results of the ventilatory function tests.
(1) Instruments to be used for the administration of pulmonary
function tests shall be approved by NIOSH and shall conform to the
following criteria:
(i) The instrument shall be accurate within 50 ml or within
3 percent of reading, whichever is greater.
(ii) The instrument shall be capable of measuring vital capacity
from 0 to 7 liters BTPS.
(iii) The instrument shall have a low inertia and offer low
resistance to airflow such that the resistance to airflow at 12
liters per second must be less than 1.5 cm H<INF>2</INF>O/liter/sec.
(iv) The instrument or user of the instrument must have a means
of correcting volumes to body temperature saturated with water vapor
(BTPS) under conditions of varying ambient spirometer temperatures
and barometric pressures.
(v) The instrument used shall provide a tracing of flow versus
volume (flow-volume loop) which displays the entire maximum
inspiration and the entire maximum forced expiration. The instrument
shall, in addition, provide tracings of the volume versus time
tracing (spirogram) derived electronically from the flow-volume
loop. Tracings are necessary to determine whether maximum
inspiratory and expiratory efforts have been obtained during the FVC
maneuver. If maximum voluntary ventilation is measured, the tracing
shall record the individual breaths volumes versus time.
(vi) The instrument shall be capable of accumulating volume for
a minimum of 10 seconds after the onset of exhalation.
(vii) The instrument must be capable of being calibrated in the
field with respect to the FEV1. The volume calibration shall be
accomplished with a 3 L calibrating syringe and should agree to
within 1 percent of a 3 L calibrating volume. The linearity of the
instrument must be documented by a record of volume calibrations at
three different flow rates of approximately 3 L/6 sec, 3 L/3 sec,
and 3 L/sec.
(viii) For measuring maximum voluntary ventilation (MVV) the
instrument shall have a response which is flat within 10 percent
up to 4 Hz at flow rates up to 12 liters per second over the volume
range.
(ix) The spirogram shall be recorded at a speed of at least 20
mm/sec and a volume excursion of at least 10mm/L. Calculation of the
FEV1 from the flow-volume loop is not acceptable. Original tracings
shall be submitted.
(2) The administration of pulmonary function tests shall conform
to the following criteria:
(i) Tests shall not be performed during or soon after an acute
respiratory illness.
(ii) For the FEV1 and FVC, use of a nose clip is required. The
procedures shall be explained in simple terms to the patient who
shall be instructed to loosen any tight clothing and stand in front
of the apparatus. The subject may sit, or stand, but care should be
taken on repeat testing that the same position be used. Particular
attention shall be given to insure that the chin is slightly
elevated with the neck slightly extended. The subject shall be
instructed to expire completely, momentarily hold his breath, place
the mouthpiece in his mouth and close the mouth firmly about the
mouthpiece to ensure no air leak. The subject will then make a
maximum inspiration from the instrument and when maximum inspiration
has been attained, without interruption, blow as hard, fast and
completely as possible for at least 7 seconds or until a plateau has
been attained in the volume-time curve with no detectable change in
the expired volume during the last 2 seconds of maximal expiratory
effort. A minimum of three flow-volume loops and derived spirometric
tracings shall be carried out. The patient shall be observed
throughout the study for compliance with instructions. Inspiration
and expiration shall be checked visually for reproducibility. The
effort shall be judged unacceptable when the patient:
(A) Has not reached full inspiration preceding the forced
expiration; or
(B) Has not used maximal effort during the entire forced
expiration; or
(C) Has not continued the expiration for at least 7 sec. or
until an obvious plateau for at least 2 sec. in the volume-time
curve has occurred; or
(D) Has coughed or closed his glottis; or
(E) Has an obstructed mouthpiece or a leak around the mouthpiece
(obstruction due to tongue being placed in front of mouthpiece,
false teeth falling in front of mouthpiece, etc.); or
(F) Has an unsatisfactory start of expiration, one characterized
by excessive hesitation (or false starts). Peak flow should be
attained at the start of expiration and the volume-time tracing
(spirogram) should have a smooth contour revealing gradually
decreasing flow throughout expiration; or
(G) Has an excessive variability between the three acceptable
curves. The variation between the two largest FEV1's of the three
acceptable tracings should not exceed 5 percent of the largest FEV1
or 100 ml, whichever is greater.
(iii) For the MVV, the subject shall be instructed before
beginning the test that he or she will be asked to breathe as deeply
and as rapidly as possible for approximately 15 seconds. The test
shall be performed with the subject in the standing position, if
possible. Care shall be taken on repeat testing that the same
position be used. The subject shall breathe normally into the
mouthpiece of the apparatus for 10 to 15 seconds to become
accustomed to the system. The subject shall then be instructed to
breathe as deeply and as rapidly as possible, and shall be
continually encouraged during the remainder of the maneuver. Subject
shall continue the maneuver for 15 seconds. At least 5 minutes of
rest shall be allowed between maneuvers. At least three MVV's shall
be carried out. (But see Sec. 718.103(b).) During the maneuvers the
patient shall be observed for compliance with instructions. The
effort shall be judged unacceptable when the patient:
(A) Has not maintained consistent effort for at least 12 to 15
seconds; or
(B) Has coughed or closed his glottis; or
(C) Has an obstructed mouthpiece or a leak around the mouthpiece
(obstruction due to tongue being placed in front of mouthpiece,
false teeth falling in front of mouthpiece, etc.); or
(D) Has an excessive variability between the three acceptable
curves. The variation between the two largest MVV's of the three
satisfactory tracings shall not exceed 10 percent.
(iv) A calibration check shall be performed on the instrument
each day before use, using a volume source of at least three liters,
accurate to within 1 percent of full scale. The volume
calibration shall be performed in accordance with the method
described in paragraph (1)(vii) of this Appendix. Accuracy of the
time measurement used in determining the FEV1 shall be checked using
the manufacturer's stated procedure and shall be within 3 percent
of actual. The procedure described in the Appendix shall be
performed as well as any other procedures suggested by the
manufacturer of the spirometer being used.
(v)(A) The first step in evaluating a spirogram for the FVC and
FEV1 shall be to determine whether or not the patient has performed
the test properly or as described in paragraph (2)(ii) of this
Appendix. The largest recorded FVC and FEV1, corrected to BTPS,
shall be used in the analysis.
(B) Only MVV maneuvers which demonstrate consistent effort for
at least 12 seconds shall be considered acceptable. The largest
accumulated volume for a 12 second period corrected to BTPS and
multiplied by five or the largest accumulated volume for a 15 second
period corrected to BTPS and multiplied by four is to be reported as
the MVV.
* * * * *
Appendix C to Part 718--Blood-Gas Tables
The following tables set forth the values to be applied in
determining whether total disability may be established in
accordance with Secs. 718.204(b)(2)(ii) and 718.305(a) and (c). The
values contained in the tables are indicative of impairment only.
They do not establish a degree of disability except as provided in
Secs. 718.204(b)(2)(ii) and 718.305
[[Page 55018]]
(a) and (c), nor do they establish standards for determining normal
alveolar gas exchange values for any particular individual. Tests
shall not be performed during or soon after an acute respiratory or
cardiac illness.
A miner who meets the following medical specifications shall be
found to be totally disabled, in the absence of rebutting evidence,
if the values specified in one of the following tables are met:
(1) For arterial blood-gas studies performed at test sites up to
2,999 feet above sea level:
------------------------------------------------------------------------
Arterial pO2
equal to or
Arterial pCO2 (mm Hg) less than (mm
Hg)
------------------------------------------------------------------------
25 or below............................................. 75
26...................................................... 74
27...................................................... 73
28...................................................... 72
29...................................................... 71
30...................................................... 70
31...................................................... 69
32...................................................... 68
33...................................................... 67
34...................................................... 66
35...................................................... 65
36...................................................... 64
37...................................................... 63
38...................................................... 62
39...................................................... 61
40-49................................................... 60
Above 50................................................ \1\
------------------------------------------------------------------------
\1\ Any value.
(2) For arterial blood-gas studies performed at test sites 3,000
to 5,999 feet above sea level:
------------------------------------------------------------------------
Arterial pO2
equal to or
Arterial pCO2 (mm Hg) less than (mm
Hg)
------------------------------------------------------------------------
25 or below............................................. 70
26...................................................... 69
27...................................................... 68
28...................................................... 67
29...................................................... 66
30...................................................... 65
31...................................................... 64
32...................................................... 63
33...................................................... 62
34...................................................... 61
35...................................................... 60
36...................................................... 59
37...................................................... 58
38...................................................... 57
39...................................................... 56
40-49................................................... 55
Above 50................................................ \2\
------------------------------------------------------------------------
\2\ Any value.
(3) For arterial blood-gas studies performed at test sites 6,000
feet or more above sea level:
------------------------------------------------------------------------
Arterial pO2
equal to or
Arterial pCO2 (mm Hg) less than (mm
Hg)
------------------------------------------------------------------------
25 or below............................................. 65
26...................................................... 64
27...................................................... 63
28...................................................... 62
29...................................................... 61
30...................................................... 60
31...................................................... 59
32...................................................... 58
33...................................................... 57
34...................................................... 56
35...................................................... 55
36...................................................... 54
37...................................................... 53
38...................................................... 52
39...................................................... 51
40-49................................................... 50
Above 50................................................ \3\
------------------------------------------------------------------------
\3\ Any value.
3. Part 722 is proposed to be revised as follows.
PART 722--CRITERIA FOR DETERMINING WHETHER STATE WORKERS'
COMPENSATION LAWS PROVIDE ADEQUATE COVERAGE FOR PNEUMOCONIOSIS AND
LISTING OF APPROVED STATE LAWS
722.1 Purpose.
722.2 Definitions.
722.3 General criteria; inclusion in and removal from the
Secretary's list.
722.4 The Secretary's list.
Authority: 5 U.S.C. 301, Reorganization Plan No. 6 of 1950, 15
FR 3174, 30 U.S.C. 901 et seq., 921, 932, 936; 33 U.S.C. 901 et
seq., Secretary's Order 7-87, 52 FR 48466, Employment Standards
Order No. 90-02.
Sec. 722.1 Purpose.
Section 421 of the Black Lung Benefits Act provides that a claim
for benefits based on the total disability or death of a coal miner due
to pneumoconiosis must be filed under a State workers' compensation law
where such law provides adequate coverage for pneumoconiosis. A State
workers' compensation law may be deemed to provide adequate coverage
only when it is included on a list of such laws maintained by the
Secretary. The purpose of this part is to set forth the procedures and
criteria for inclusion on that list, and to provide that list.
Sec. 722.2 Definitions.
(a) The definitions and use of terms contained in subpart A of part
725 of this title shall be applicable to this part.
(b) For purposes of this part, the following definitions apply:
(1) State agency means, with respect to any State, the agency,
department or officer designated by the workers' compensation law of
the State to administer such law. In any case in which more than one
agency participates in the administration of a State workers'
compensation law, the Governor of the State may designate which of the
agencies shall be the State agency for purposes of this part.
(2) The Secretary's list means the list published by the Secretary
of Labor in the Federal Register (see Sec. 722.4) containing the names
of those States which have in effect a workers' compensation law which
provides adequate coverage for death or total disability due to
pneumoconiosis.
Sec. 722.3 General criteria; inclusion in and removal from the
Secretary's list.
(a) The Governor of any State or any duly authorized State agency
may, at any time, request that the Secretary include such State's
workers' compensation law on his list of those State workers'
compensation laws providing adequate coverage for total disability or
death due to pneumoconiosis. Each such request shall include a copy of
the State workers' compensation law and any other pertinent State laws,
a copy of any regulations, either proposed or promulgated, implementing
such laws; and a copy of any administrative or court decision
interpreting such laws or regulations, or, if such decisions are
published in a readily available report, a citation to such decision.
(b) Upon receipt of a request that a State be included on the
Secretary's list, the Secretary shall include the State on the list if
he finds that the State's workers' compensation law guarantees the
payment of monthly and medical benefits to all persons who would be
entitled to such benefits under the Black Lung Benefits Act at the time
of the request, at a rate no less than that provided by the Black Lung
Benefits Act. The criteria used by the Secretary in making such
determination shall include, but shall not be limited to, the criteria
set forth in section 421(b)(2) of the Act.
(c) The Secretary may require each State included on the list to
submit reports detailing the extent to which the State's workers'
compensation laws, as reflected by statute, regulation, or
administrative or court decision, continues to meet the requirements of
paragraph (b) of this section. If the Secretary concludes that the
State's workers' compensation law does not provide adequate coverage at
any time, either because of changes to the State workers' compensation
law or the Black Lung Benefits Act, he shall remove the State from the
Secretary's list after providing the State with notice of such removal
and an opportunity to be heard.
[[Page 55019]]
Sec. 722.4 The Secretary's list.
(a) The Secretary has determined that publication of the
Secretary's list in the Code of Federal Regulations is appropriate.
Accordingly, in addition to its publication in the Federal Register as
required by section 421 of the Black Lung Benefits Act, the list shall
also appear in paragraph (b) of this section.
(b) Upon review of all requests filed with the Secretary under
section 421 of the Black Lung Benefits Act and this part, and
examination of the workers' compensation laws of the States making such
requests, the Secretary has determined that the workers' compensation
law of each of the following listed States, for the period from the
date shown in the list until such date as the Secretary may make a
contrary determination, provides adequate coverage for pneumoconiosis.
State Period commencing
None
4. Part 725 is proposed to be revised as follows:
PART 725--CLAIMS FOR BENEFITS UNDER PART C OF TITLE IV OF THE
FEDERAL MINE SAFETY AND HEALTH ACT, AS AMENDED
Subpart A--General
Sec.
725.1 Statutory provisions.
725.2 Purpose and applicability of this part.
725.3 Contents of this part.
725.4 Applicability of other parts in this title.
725.101 Definitions and use of terms.
725.102 Disclosure of program information.
725.103 Burden of proof.
Subpart B--Persons Entitled to Benefits, Conditions, and Duration of
Entitlement
725.201 Who is entitled to benefits; contents of this subpart.
Conditions and Duration of Entitlement: Miner
725.202 Miner defined; conditions of entitlement, miner.
725.203 Duration and cessation of entitlement, miner.
Conditions and Duration of Entitlement: Miner's Dependents (Augmented
Benefits)
725.204 Determination of relationship; spouse.
725.205 Determination of dependency; spouse.
725.206 Determination of relationship; divorced spouse.
725.207 Determination of dependency; divorced spouse.
725.208 Determination of relationship; child.
725.209 Determination of dependency; child.
725.210 Duration of augmented benefits.
725.211 Time of determination of relationship and dependency of
spouse or child for purposes of augmentation of benefits.
Conditions and Duration of Entitlement: Miner's Survivors
725.212 Conditions of entitlement; surviving spouse or surviving
divorced spouse.
725.213 Duration of entitlement; surviving spouse or surviving
divorced spouse.
725.214 Determination of relationship; surviving spouse.
725.215 Determination of dependency; surviving spouse.
725.216 Determination of relationship; surviving divorced spouse.
725.217 Determination of dependency; surviving divorced spouse.
725.218 Conditions of entitlement; child.
725.219 Duration of entitlement; child.
725.220 Determination of relationship; child.
725.221 Determination of dependency; child.
725.222 Conditions of entitlement; parent, brother or sister.
725.223 Duration of entitlement; parent, brother or sister.
725.224 Determination of relationship; parent, brother or sister.
725.225 Determination of dependency; parent, brother or sister.
725.226 ``Good cause'' for delayed filing of proof of support.
725.227 Time of determination of relationship and dependency of
survivors.
725.228 Effect of conviction of felonious and intentional homicide
on entitlement to benefits.
Terms Used in This Subpart
725.229 Intestate personal property.
725.230 Legal impediment.
725.231 Domicile.
725.232 Member of the same household--``living with,'' ``living in
the same household,'' and ``living in the miner's household,''
defined.
725.233 Support and contributions.
Subpart C--Filing of Claims
725.301 Who may file a claim
725.302 Evidence of authority to file a claim on behalf of another.
725.303 Date and place of filing of claims.
725.304 Forms and initial processing.
725.305 When a written statement is considered a claim.
725.306 Withdrawal of a claim.
725.307 Cancellation of a request for withdrawal.
725.308 Time limits for filing claims.
725.309 Additional claims; effect of a prior denial of benefits.
725.310 Modification of awards and denials.
725.311 Communications with respect to claims; time computations.
Subpart D--Adjudication Officers; Parties and Representatives
725.350 Who are the adjudication officers.
725.351 Powers of adjudication officers.
725.352 Disqualification of adjudication officer.
725.360 Parties to proceedings
725.361 Party amicus curiae.
725.362 Representation of parties.
725.363 Qualification of representative.
725.364 Authority of representative.
725.365 Approval of representative's fees; lien against benefits.
725.366 Fees for representatives.
725.367 Payment of a claimant's attorney's fee by responsible
operator or fund.
Subpart E--Adjudication of Claims by the District Director
725.401 Claims development--general.
725.402 Approved State workers' compensation law.
725.403 [Reserved]
725.404 Development of evidence--general
725.405 Development of medical evidence; scheduling of medical
examinations and tests.
725.406 Medical examinations and tests.
725.407 Identification and notification of responsible operator.
725.408 Operator's response to notification.
725.409 Denial of a claim by reason of abandonment.
725.410 Initial findings by the district director.
725.411 Initial finding--eligibility.
725.412 Initial finding--liability.
725.413 Initial adjudication by the district director.
725.414 Development of evidence.
725.415 Action by the district director after development of
operator's evidence.
725.416 Conferences.
725.417 Action at the conclusion of conference.
725.418 Proposed decision and order.
725.419 Response to proposed decision and order.
725.420 Initial determinations.
725.421 Referral of a claim to the Office of Administrative Law
Judges.
725.422 Legal Assistance.
725.423 Extensions of time.
Subpart F--Hearings
725.450 Right to a hearing.
725.451 Request for hearing.
725.452 Type of hearing; parties.
725.453 Notice of hearing.
725.454 Time and place of hearing; transfer of cases.
725.455 Hearing procedures; generally.
725.456 Introduction of documentary evidence.
725.457 Witnesses.
725.458 Depositions; interrogatories.
725.459 Witness fees.
725.460 Consolidated hearings.
725.461 Waiver of right to appear and present evidence.
725.462 Withdrawal of controversion of issues set for formal
hearing; effect.
725.463 Issues to be resolved at hearing; new issues.
725.464 Record of hearing.
725.465 Dismissals for cause.
725.466 Order of dismissal.
725.475 Termination of hearings.
725.476 Issuance of decision and order.
725.477 Form and contents of decision and order.
[[Page 55020]]
725.478 Filing and service of decision and order.
725.479 Finality of decisions and orders.
725.480 Modification of decisions and orders.
725.481 Right to appeal to the Benefits Review Board.
725.482 Judicial review.
725.483 Costs in proceedings brought without reasonable grounds.
Subpart G--Responsible Coal Mine Operators
725.490 Statutory provisions and scope.
725.491 Operator defined.
725.492 Successor operator defined.
725.493 Employment relationship defined.
725.494 Potentially liable operators.
725.495 Criteria for determining a responsible operator.
725.496 Special claims transferred to the Trust Fund.
725.497 Procedures in special claims transferred to the Trust Fund.
Subpart H--Payment of Benefits
General Provisions
725.501 Payment provisions generally.
725.502 When benefit payments are due; manner of payment.
725.503 Date from which benefits are payable.
725.504 Payments to a claimant employed as a miner.
725.505 Payees.
725.506 Payment on behalf of another; ``legal guardian'' defined.
725.507 Guardian for minor or incompetent.
725.510 Representative payee.
725.511 Use and benefit defined.
725.512 Support of legally dependent spouse, child, or parent.
725.513 Accountability; transfer.
725.514 Certification to dependent of augmentation portion of
benefit.
725.515 Assignment and exemption from claims of creditors.
725.520 Computation of benefits.
725.521 Commutation of payments; lump sum awards.
725.522 Payments prior to final adjudication.
725.530 Operator payments; generally.
725.531 Receipt for payment.
Increases and Reductions of Benefits
725.532 Suspension, reduction, or termination of payments.
725.533 Modification of benefit amounts; general.
725.534 Reduction of State benefits.
725.535 Reductions; receipt of State or Federal benefit.
725.536 Reductions; excess earnings.
725.537 Reductions; retroactive effect of an additional claim for
benefits.
725.538 Reductions; effect of augmentation of benefits based on
subsequent qualification of individual.
725.539 More than one reduction event.
Overpayments; Underpayments
725.540 Overpayments.
725.541 Notice of waiver of adjustment or recovery of overpayment.
725.542 When waiver of adjustment or recovery may be applied.
725.543 Standards for waiver of adjustment or recovery.
725.544 Collection and compromise of claims for overpayment.
725.545 Underpayments.
725.546 Relation to provisions for reductions or increases.
725.547 Applicability of overpayment and underpayment provisions to
operator or carrier.
725.548 Procedures applicable to overpayments and underpayments.
Subpart I--Enforcement of Liability; Reports
725.601 Enforcement generally.
725.602 Reimbursement of the fund.
725.603 Payments by the fund on behalf of an operator; liens.
725.604 Enforcement of final awards.
725.605 Defaults.
725.606 Security for the payment of benefits.
725.607 Payments in addition to compensation.
725.608 Interest.
725.609 Enforcement against other persons.
725.620 Failure to secure benefits; other penalties.
725.621 Reports.
Subpart J--Medical Benefits and Vocational Rehabilitation
725.701 Availability of medical benefits.
725.702 Claims for medical benefits only under section 11 of the
Reform Act.
725.703 Physician defined.
725.704 Notification of right to medical benefits; authorization of
treatment.
725.705 Arrangements for medical care.
725.706 Authorization to provide medical services.
725.707 Reports of physicians and supervision of medical care.
725.708 Disputes concerning medical benefits.
725.710 Objective of vocational rehabilitation.
725.711 Requests for referral to vocational rehabilitation
assistance.
Authority: 5 U.S.C. 301, Reorganization Plan No. 6 of 1950, 15
FR 3174, 30 U.S.C. 901 et seq., 921, 932, 936; 33 U.S.C. 901 et
seq., 42 U.S.C. 405, Secretary's Order 7-87, 52 FR 48466, Employment
Standards Order No. 90-02.
Subpart A--General
Sec. 725.1 Statutory provisions.
(a) General. Title IV of the Federal Mine Safety and Health Act of
1977, as amended by the Black Lung Benefits Reform Act of 1977, the
Black Lung Benefits Revenue Act of 1977, the Black Lung Benefits
Revenue Act of 1981 and the Black Lung Benefits Amendments of 1981,
provides for the payment of benefits to a coal miner who is totally
disabled due to pneumoconiosis (black lung disease) and to certain
survivors of a miner who dies due to pneumoconiosis. For claims filed
prior to January 1, 1982, certain survivors could receive benefits if
the miner was totally (or for claims filed prior to June 30, 1982, in
accordance with section 411(c)(5) of the Act, partially) disabled due
to pneumoconiosis, or if the miner died due to pneumoconiosis.
(b) Part B. Part B of title IV of the Act provided that all claims
filed between December 30, 1969, and June 30, 1973, are to be filed
with, processed, and paid by the Secretary of Health, Education, and
Welfare through the Social Security Administration; claims filed by the
survivor of a miner before January 1, 1974, or within 6 months of the
miner's death if death occurred before January 1, 1974, and claims
filed by the survivor of a miner who was receiving benefits under part
B of title IV of the Act at the time of death, if filed within 6 months
of the miner's death, are also adjudicated and paid by the Social
Security Administration.
(c) Section 415. Claims filed by a miner between July 1 and
December 31, 1973, are adjudicated and paid under section 415. Section
415 provides that a claim filed between the appropriate dates shall be
filed with and adjudicated by the Secretary of Labor under certain
incorporated provisions of the Longshoremen's and Harbor Workers'
Compensation Act (33 U.S.C. 901 et seq.). A claim approved under
section 415 is paid under part B of title IV of the Act for periods of
eligibility occurring between July 1 and December 31, 1973, by the
Secretary of Labor and for periods of eligibility thereafter, is paid
by a coal mine operator which is determined liable for the claim or the
Black Lung Disability Trust Fund if no operator is identified or if the
miner's last coal mine employment terminated prior to January 1, 1970.
An operator which may be found liable for a section 415 claim is
notified of the claim and allowed to participate fully in the
adjudication of such claim. A claim filed under section 415 is for all
purposes considered as if it were a part C claim (see paragraph (d) of
this section) and the provisions of part C of title IV of the Act are
fully applicable to a section 415 claim except as is otherwise provided
in section 415.
(d) Part C. Claims filed by a miner or survivor on or after January
1, 1974, are filed, adjudicated, and paid under the provisions of part
C of title IV of the Act. Part C requires that a claim filed on or
after January 1, 1974, shall be filed under an applicable approved
State workers' compensation law, or if no such law has been approved by
the Secretary of Labor, the claim may be filed with the Secretary of
Labor under section 422 of the Act. Claims filed with the Secretary of
Labor under part C are
[[Page 55021]]
processed and adjudicated by the Secretary and paid by a coal mine
operator. If the miner's last coal mine employment terminated before
January 1, 1970, or if no responsible operator can be identified,
benefits are paid by the Black Lung Disability Trust Fund. Claims
adjudicated under part C are subject to certain incorporated provisions
of the Longshoremen's and Harbor Workers' Compensation Act.
(e) Section 435. Section 435 of the Act affords each person who
filed a claim for benefits under part B, section 415, or part C, and
whose claim had been denied or was still pending as of March 1, 1978,
the effective date of the Black Lung Benefits Reform Act of 1977, the
right to have his or her claim reviewed on the basis of the 1977
amendments to the Act, and under certain circumstances to submit new
evidence in support of the claim.
(f) Changes made by the Black Lung Benefits Reform Act of 1977. In
addition to those changes which are reflected in paragraphs (a) through
(e) of this section, the Black Lung Benefits Reform Act of 1977
contains a number of significant amendments to the Act's standards for
determining eligibility for benefits. Among these are:
(1) A provision which clarifies the definition of
``pneumoconiosis'' to include any ``chronic dust disease of the lung
and its sequelae, including respiratory and pulmonary impairments,
arising out of coal mine employment'';
(2) A provision which defines ``miner'' to include any person who
works or has worked in or around a coal mine or coal preparation
facility, and in coal mine construction or coal transportation under
certain circumstances;
(3) A provision which limits the denial of a claim solely on the
basis of employment in a coal mine;
(4) A provision which authorizes the Secretary of Labor to
establish standards and develop criteria for determining total
disability or death due to pneumoconiosis with respect to a part C
claim;
(5) A new presumption which requires the payment of benefits to the
survivors of a miner who was employed for 25 or more years in the mines
under certain conditions;
(6) Provisions relating to the treatment to be accorded a
survivor's affidavit, certain X-ray interpretations, and certain
autopsy reports in the development of a claim; and
(7) Other clarifying, procedural, and technical amendments.
(g) Changes made by the Black Lung Benefits Revenue Act of 1977.
The Black Lung Benefits Revenue Act of 1977 established the Black Lung
Disability Trust Fund which is financed by a specified tax imposed upon
each ton of coal (except lignite) produced and sold or used in the
United States after March 31, 1978. The Secretary of the Treasury is
the managing trustee of the fund and benefits are paid from the fund
upon the direction of the Secretary of Labor. The fund was made liable
for the payment of all claims approved under section 415, part C and
section 435 of the Act for all periods of eligibility occurring on or
after January 1, 1974, with respect to claims where the miner's last
coal mine employment terminated before January 1, 1970, or where
individual liability can not be assessed against a coal mine operator
due to bankruptcy, insolvency, or the like. The fund was also
authorized to pay certain claims which a responsible operator has
refused to pay within a reasonable time, and to seek reimbursement from
such operator. The purpose of the fund and the Black Lung Benefits
Revenue Act of 1977 was to insure that coal mine operators, or the coal
industry, will fully bear the cost of black lung disease for the
present time and in the future. The Black Lung Benefits Revenue Act of
1977 also contained other provisions relating to the fund and
authorized a coal mine operator to establish its own trust fund for the
payment of certain claims.
(h) Changes made by the Black Lung Benefits Amendments of 1981. In
addition to the change reflected in paragraph (a) of this section, the
Black Lung Benefits Amendments of 1981 made a number of significant
changes in the Act's standards for determining eligibility for benefits
and concerning the payment of such benefits. The following changes are
all applicable to claims filed on or after January 1, 1982:
(1) The Secretary of Labor may re-read any X-ray submitted in
support of a claim and may rely upon a second opinion concerning such
an X-ray as a means of auditing the validity of the claim;
(2) The rebuttable presumption that the death of a miner with ten
or more years employment in the coal mines, who died of a respirable
disease, was due to pneumoconiosis is no longer applicable;
(3) The rebuttable presumption that the total disability of a miner
with fifteen or more years employment in the coal mines, who has
demonstrated a totally disabling respiratory or pulmonary impairment,
is due to pneumoconiosis is no longer applicable;
(4) In the case of deceased miners, where no medical or other
relevant evidence is available, only affidavits from persons not
eligible to receive benefits as a result of the adjudication of the
claim will be considered sufficient to establish entitlement to
benefits;
(5) Unless the miner was found entitled to benefits as a result of
a claim filed prior to January 1, 1982, benefits are payable on
survivors' claims filed on and after January 1, 1982, only when the
miner's death was due to pneumoconiosis;
(6) Benefits payable under this part are subject to an offset on
account of excess earnings by the miner; and
(7) Other technical amendments.
(i) Changes made by the Black Lung Benefits Revenue Act of 1981.
The Black Lung Benefits Revenue Act of 1981 temporarily doubles the
amount of the tax upon coal until the fund shall have repaid all
advances received from the United States Treasury and the interest on
all such advances. The fund is also made liable for the payment of
certain claims previously denied under the 1972 version of the Act and
subsequently approved under section 435 and for the reimbursement of
operators and insurers for benefits previously paid by them on such
claims. With respect to claims filed on or after January 1, 1982, the
fund's authorization for the payment of interim benefits is limited to
the payment of prospective benefits only. These changes also define the
rates of interest to be paid to and by the fund.
(j) Longshoremen's Act provisions. The adjudication of claims filed
under sections 415, 422 and 435 of the Act is governed by various
procedural and other provisions contained in the Longshoremen's and
Harbor Workers' Compensation Act (LHWCA), as amended from time to time,
which are incorporated within the Act by sections 415 and 422. The
incorporated LHWCA provisions are applicable under the Act except as is
otherwise provided by the Act or as provided by regulations of the
Secretary. Although occupational disease benefits are also payable
under the LHWCA, the primary focus of the procedures set forth in that
Act is upon a time definite of traumatic injury or death. Because of
this and other significant differences between a black lung and
longshore claim, it is determined, in accordance with the authority set
forth in section 422 of the Act, that certain of the incorporated
procedures prescribed by the LHWCA must be altered to fit the
circumstances ordinarily confronted in the adjudication of a black lung
claim. The changes made are based upon the Department's experience in
processing black lung claims since July 1, 1973,
[[Page 55022]]
and all such changes are specified in this part or part 727 of this
subchapter (see Sec. 725.4(d)). No other departure from the
incorporated provisions of the LHWCA is intended.
(k) Social Security Act provisions. Section 402 of the Act
incorporates certain definitional provisions from the Social Security
Act, 42 U.S.C. 301 et seq. Section 430 provides that the 1972, 1977 and
1981 amendments to part B of the Act shall also apply to part C ``to
the extent appropriate.'' Sections 412 and 413 incorporate various
provisions of the Social Security Act into part B of the Act. To the
extent appropriate, these provisions also apply to part C. In certain
cases, the Department has varied the terms of the Social Security Act
provisions to accommodate the unique needs of the black lung benefits
program. Parts of the Longshore and Harbor Workers' Compensation Act
are also incorporated into part C. Where the incorporated provisions of
the two acts are inconsistent, the Department has exercised its broad
regulatory powers to choose the extent to which incorporation is
appropriate.
Sec. 725.2 Purpose and applicability of this part.
(a) This part sets forth the procedures to be followed and
standards to be applied in filing, processing, adjudicating, and paying
claims filed under part C of title IV of the Act.
(b) This part applies to all claims filed under part C of title IV
of the Act on or after August 18, 1978 and shall also apply to claims
that were pending on August 18, 1978.
(c) The provisions of this part reflect revisions that became
effective on [the effective date of the final rule]. This part applies
to all claims filed, and all benefits payments made, after [the
effective date of the final rule]. With the exception of the following
sections, this part shall also apply to the adjudication of claims that
were pending on [the effective date of the final rule]: Secs. 725.309,
725.310, 725.351, 725.360, 725.406, 725.407, 725.408, 725.410, 725.411,
725.412, 725.413, 725.414, 725.415, 725.417, 725.418, 725.423, 725.454,
725.456, 725.457, 725.459, 725.491, 725.492, 725.493, 725.494, 725.495,
725.547. The version of those sections set forth in 20 CFR, parts 500
to end, edition revised as of April 1, 1996, apply to the adjudications
of claims that were pending on [the effective date of the final rule].
For purposes of construing the provisions of this section, a claim
shall be considered pending on [the effective date of the final rule]
if it was not finally denied more than one year prior to that date.
Sec. 725.3 Contents of this part.
(a) This subpart describes the statutory provisions which relate to
claims considered under this part, the purpose and scope of this part,
definitions and usages of terms applicable to this part, and matters
relating to the availability of information collected by the Department
of Labor in connection with the processing of claims.
(b) Subpart B contains criteria for determining who may be found
entitled to benefits under this part and other provisions relating to
the conditions and duration of eligibility of a particular individual.
(c) Subpart C describes the procedures to be followed and action to
be taken in connection with the filing of a claim under this part.
(d) Subpart D sets forth the duties and powers of the persons
designated by the Secretary of Labor to adjudicate claims and
provisions relating to the rights of parties and representatives of
parties.
(e) Subpart E contains the procedures for developing evidence and
adjudicating entitlement and liability issues by the district director.
(f) Subpart F describes the procedures to be followed if a hearing
before the Office of Administrative Law Judges is required.
(g) Subpart G contains provisions governing the identification of a
coal mine operator which may be liable for the payment of a claim.
(h) Subpart H contains provisions governing the payment of benefits
with respect to an approved claim.
(i) Subpart I describes the statutory mechanisms provided for the
enforcement of a coal mine operator's liability, sets forth the
penalties which may be applied in the case of a defaulting coal mine
operator, and describes the obligation of coal operators and their
insurance carriers to file certain reports.
(j) Subpart J describes the right of certain beneficiaries to
receive medical treatment benefits and vocational rehabilitation under
the Act.
Sec. 725.4 Applicability of other parts in this title.
(a) Part 718. Part 718 of this subchapter, which contains the
criteria and standards to be applied in determining whether a miner is
or was totally disabled due to pneumoconiosis, or whether a miner died
due to pneumoconiosis, shall be applicable to the determination of
claims under this part. Claims filed after March 31, 1980, are subject
to part 718 as promulgated by the Secretary in accordance with section
402(f)(1) of the Act on February 29, 1980 (see Sec. 725.2(c)). The
criteria contained in subpart C of part 727 of this subchapter are
applicable in determining claims filed prior to April 1, 1980, under
this part, and such criteria shall be applicable at all times with
respect to claims filed under this part and under section 11 of the
Black Lung Benefits Reform Act of 1977.
(b) Parts 715, 717, and 720. Pertinent and significant provisions
of Parts 715, 717, and 720 of this subchapter (contained in 20 CFR,
parts 500 to end, edition revised as of April 1, 1978), which
established the procedures for the filing, processing, and payment of
claims filed under section 415 of the Act, are included within this
part as appropriate.
(c) Part 726. Part 726 of this subchapter, which sets forth the
obligations imposed upon a coal operator to insure or self-insure its
liability for the payment of benefits to certain eligible claimants, is
applicable to this part as appropriate.
(d) Part 727. Part 727 of this subchapter, which governs the
review, adjudication and payment of pending and denied claims under
section 435 of the Act, is applicable with respect to such claims. The
criteria contained in subpart C of part 727 for determining a
claimant's eligibility for benefits are applicable under this part with
respect to all claims filed before April 1, 1980, and to all claims
filed under this part and under section 11 of the Black Lung Benefits
Reform Act of 1977. Because the part 727 regulations affect an
increasingly smaller number of claims, however, the Department has
discontinued publication of the criteria in the Code of Federal
Regulations. The part 727 criteria may be found at 43 FR 36818, Aug.
18, 1978 or 20 CFR, parts 500 to end, edition revised as of April 1,
1996.
(e) Part 410. Part 410 of this title, which sets forth provisions
relating to a claim for black lung benefits under part B of title IV of
the Act, is inapplicable to this part except as is provided in this
part, or in part 718 of this subchapter.
Sec. 725.101 Definitions and use of terms.
(a) Definitions. For purposes of this subchapter, except where the
content clearly indicates otherwise, the following definitions apply:
(1) The Act means the Federal Coal Mine Health and Safety Act,
Public Law 91-173, 83 Stat. 742, 30 U.S.C. 801-960, as amended by the
Black Lung Benefits Act of 1972, the Mine Safety and Health Act of
1977, the Black Lung Benefits Reform Act of 1977, the Black Lung
Benefits Revenue Act of 1977, the Black Lung Benefits Revenue Act of
1981, and
[[Page 55023]]
the Black Lung Benefits Amendments of 1981.
(2) The Longshoremen's Act or LHWCA means the Longshoremen's and
Harbor Workers' Compensation Act of March 4, 1927, c. 509, 44 Stat.
1424, 33 U.S.C. 901-950, as amended from time to time.
(3) The Social Security Act means the Social Security Act, Act of
August 14, 1935, c. 531, 49 Stat. 620, 42 U.S.C. 301-431, as amended
from time to time.
(4) Administrative law judge means a person qualified under 5
U.S.C. 3105 to conduct hearings and adjudicate claims for benefits
filed pursuant to section 415 and part C of the Act. Until March 1,
1979, it shall also mean an individual appointed to conduct such
hearings and adjudicate such claims under Public Law 94-504.
(5) Beneficiary means a miner or any surviving spouse, divorced
spouse, child, parent, brother or sister, who is entitled to benefits
under either section 415 or part C of title IV of the Act.
(6) Benefits means all money or other benefits paid or payable
under section 415 or part C of title IV of the Act on account of
disability or death due to pneumoconiosis, including augmented benefits
(see Sec. 725.520(c)). The term also includes any expenses related to
the medical examination and testing authorized by the district director
pursuant to Sec. 725.406.
(7) Benefits Review Board or Board means the Benefits Review Board,
U.S. Department of Labor, an appellate tribunal appointed by the
Secretary of Labor pursuant to the provisions of section 21(b)(1) of
the LHWCA. See parts 801 and 802 of this title.
(8) Black Lung Disability Trust Fund or the fund means the Black
Lung Disability Trust Fund established by the Black Lung Benefits
Revenue Act of 1977, as amended by the Black Lung Benefits Revenue Act
of 1981, for the payment of certain claims adjudicated under this part
(see subpart G of this part).
(9) Chief Administrative Law Judge means the Chief Administrative
Law Judge of the Office of Administrative Law Judges, U.S. Department
of Labor, 800 K Street, NW., suite 400, Washington, DC 20001-8002.
(10) Claim means a written assertion of entitlement to benefits
under section 415 or part C of title IV of the Act, submitted in a form
and manner authorized by the provisions of this subchapter.
(11) Claimant means an individual who files a claim for benefits
under this part.
(12) Coal mine means an area of land and all structures,
facilities, machinery, tools, equipment, shafts, slopes, tunnels,
excavations and other property, real or personal, placed upon, under or
above the surface of such land by any person, used in, or to be used
in, or resulting from, the work of extracting in such area bituminous
coal, lignite or anthracite from its natural deposits in the earth by
any means or method, and in the work of preparing the coal so
extracted, and includes custom coal preparation facilities.
(13) Coal preparation means the breaking, crushing, sizing,
cleaning, washing, drying, mixing, storing and loading of bituminous
coal, lignite or anthracite, and such other work of preparing coal as
is usually done by the operator of a coal mine. For purposes of this
definition, the term does not include coal preparation performed by
coke oven workers.
(14) Department means the United States Department of Labor.
(15) Director means the Director, OWCP, or his or her designee.
(16) District Director means a person appointed as provided in
sections 39 and 40 of the LHWCA, or his or her designee, who is
authorized to develop and adjudicate claims as provided in this
subchapter (see Sec. 725.350). The term District Director applies
instead of the term Deputy Commissioner wherever that term appears in
this subchapter. This application is for administrative purposes only
and in no way affects the power or authority of the position as
established in the statute. Any action taken by a person under the
authority of a district director will be considered the action of a
deputy commissioner.
(17) Division or DCMWC means the Division of Coal Mine Workers'
Compensation in the OWCP, Employment Standards Administration, United
States Department of Labor.
(18) Insurer or carrier means any private company, corporation,
mutual association, reciprocal or interinsurance exchange, or any other
person or fund, including any State fund, authorized under the laws of
a State to insure employers' liability under workers' compensation
laws. The term also includes the Secretary of Labor in the exercise of
his or her authority under section 433 of the Act.
(19) Miner or coal miner means any individual who works or has
worked in or around a coal mine or coal preparation facility in the
extraction or preparation of coal. The term also includes an individual
who works or has worked in coal mine construction or transportation in
or around a coal mine, to the extent such individual was exposed to
coal dust as a result of such employment (see Sec. 725.202). For
purposes of this definition, the term does not include coke oven
workers whose activities involve the preparation or use of coal for the
coke manufacturing process.
(20) The Nation's coal mines means all coal mines located in any
State.
(21) Office or OWCP means the Office of Workers' Compensation
Programs, United States Department of Labor.
(22) Office of Administrative Law Judges means the Office of
Administrative Law Judges, U.S. Department of Labor.
(23) Operator means any owner, lessee, or other person who
operates, controls or supervises a coal mine, including a prior or
successor operator as defined in section 422 of the Act and certain
transportation and construction employers (see subpart G of this part).
(24) Person means an individual, partnership, association,
corporation, firm, subsidiary or parent of a corporation, or other
organization or business entity.
(25) Pneumoconiosis means a chronic dust disease of the lung and
its sequelae, including respiratory and pulmonary impairments, arising
out of coal mine employment (see part 718 of this subchapter).
(26) Responsible operator means an operator which has been
determined to be liable for the payment of benefits to a claimant for
periods of eligibility after December 31, 1973, with respect to a claim
filed under section 415 or part C of title IV of the Act or reviewed
under section 435 of the Act.
(27) Secretary means the Secretary of Labor, United States
Department of Labor, or a person, authorized by him or her to perform
his or her functions under title IV of the Act.
(28) State includes any state of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, American
Samoa, Guam, the Trust Territory of the Pacific Islands, and prior to
January 3, 1959, and August 21, 1959, respectively, the territories of
Alaska and Hawaii.
(29) Total disability and partial disability, for purposes of this
part, have the meaning given them as provided in part 718 of this
subchapter.
(30) Underground coal mine means a coal mine in which the earth and
other materials which lie above and around the natural deposit of coal
(i.e., overburden) are not removed in mining; including all land,
structures, facilities, machinery, tools, equipment, shafts, slopes,
tunnels, excavations and other property, real or personal, appurtenant
thereto.
[[Page 55024]]
(31) A workers' compensation law means a law providing for payment
of benefits to employees, and their dependents and survivors, for
disability on account of injury, including occupational disease, or
death, suffered in connection with their employment. A payment funded
wholly out of general revenues shall not be considered a payment under
a workers' compensation law.
(32) Year means a period of one calendar year (365 days, or 366
days if one of the days is February 29), or partial periods totalling
one year, during which the miner worked in or around a coal mine or
mines. A ``working day'' means any day or part of a day for which a
miner received pay for work as a miner, including any day for which the
miner received pay while on an approved absence, such as vacation or
sick leave.
(i) If the evidence establishes that the miner worked in or around
coal mines at least 125 working days during a calendar year or partial
periods totalling one year, then the miner has worked one year in coal
mine employment for all purposes under the Act. If a miner worked fewer
than 125 working days in a year, he or she has worked a fractional year
based on the ratio of the actual number of days worked to 125. Proof
that the miner worked more than 125 working days in a calendar year or
partial periods totalling a year, shall not establish more than one
year.
(ii) To the extent the evidence permits, the beginning and ending
dates of all periods of coal mine employment shall be ascertained. The
dates and length of employment may be established by any credible
evidence including (but not limited to) company records, pension
records, earnings statements, coworker affidavits, and sworn testimony.
If the evidence establishes that the miner's employment lasted for a
calendar year, it shall be presumed, in the absence of evidence to the
contrary, that the miner spent at least 125 working days in such
employment.
(iii) If the evidence is insufficient to establish the beginning
and ending dates of the miner's coal mine employment, or the miner's
employment lasted less than a calendar year, then the adjudication
officer may use the following formula: divide the miner's yearly income
from work as a miner by the coal mine industry's average daily earnings
for that year, as reported by the Bureau of Labor Statistics (BLS). A
copy of the BLS table shall be made a part of the record if the
adjudication officer uses this method to establish the length of the
miner's work history.
(iv) No periods of coal mine employment occurring outside the
United States shall be considered in computing the miner's work
history.
(b) Statutory terms. The definitions contained in this section
shall not be construed in derogation of terms of the Act.
(c) Dependents and survivors. Dependents and survivors are those
persons described in subpart B of this part.
Sec. 725.102 Disclosure of program information.
(a) All reports, records, or other documents filed with the OWCP
with respect to claims are the records of the OWCP. The Director or his
or her designee shall be the official custodian of those records
maintained by the OWCP at its national office. The District Director
shall be the official custodian of those records maintained at a
district office.
(b) The official custodian of any record sought to be inspected
shall permit or deny inspection in accordance with the Department of
Labor's regulations pertaining thereto (see 29 CFR part 70). The
original record in any such case shall not be removed from the Office
of the custodian for such inspection. The custodian may, in his or her
discretion, deny inspection of any record or part thereof which is of a
character specified in 5 U.S.C. 552(b) if in his or her opinion such
inspection may result in damage, harm, or harassment to the beneficiary
or to any other person. For special provisions concerning release of
information regarding injured employees undergoing vocational
rehabilitation, see Sec. 702.508 of this chapter.
(c) Any person may request copies of records he or she has been
permitted to inspect. Such requests shall be addressed to the official
custodian of the records sought to be copied. The official custodian
shall provide the requested copies under the terms and conditions
specified in the Department of Labor's regulations relating thereto
(see 29 CFR part 70).
(d) Any party to a claim (Sec. 725.360) or his or her duly
authorized representative shall be permitted upon request to inspect
the file which has been compiled in connection with such claim. Any
party to a claim or representative of such party shall upon request be
provided with a copy of any or all material contained in such claim
file. A request for information by a party or representative made under
this paragraph shall be answered within a reasonable time after receipt
by the Office. Internal documents prepared by the district director
which do not constitute evidence of a fact which must be established in
connection with a claim shall not be routinely provided or presented
for inspection in accordance with a request made under this paragraph.
Sec. 725.103 Burden of proof.
Except as otherwise provided in this part and part 718 of this
subchapter, the burden of proving a fact alleged in connection with any
provision shall rest with the party making such allegation.
Subpart B--Persons Entitled to Benefits, Conditions, and Duration
of Entitlement
Sec. 725.201 Who is entitled to benefits; contents of this subpart.
(a) Section 415 and part C of the Act provide for the payment of
periodic benefits in accordance with this part to:
(1) A miner (see Sec. 725.202) who is determined to be totally
disabled due to pneumoconiosis; or
(2) The surviving spouse or surviving divorced spouse or, where
neither exists, the child of a deceased miner, where the deceased
miner:
(i) Was receiving benefits under section 415 or part C of title IV
of the Act as a result of a claim filed prior to January 1, 1982; or
(ii) Is determined as a result of a claim filed prior to January 1,
1982, to have been totally disabled due to pneumoconiosis at the time
of death, or to have died due to pneumoconiosis. Survivors of miners
whose claims are filed on or after January 1, 1982, must establish that
the deceased miner's death was due to pneumoconiosis in order to
establish their entitlement to benefits, except where entitlement is
established under Sec. 718.306 of this subchapter on a survivor's claim
filed prior to June 30, 1982, or;
(3) The child of a miner's surviving spouse who was receiving
benefits under section 415 or part C of title IV of the Act at the time
of such spouse's death; or
(4) The surviving dependent parents, where there is no surviving
spouse or child, or the surviving dependent brothers or sisters, where
there is no surviving spouse, child, or parent, of a miner, where the
deceased miner;
(i) Was receiving benefits under section 415 or part C of title IV
of the Act as a result of a claim filed prior to January 1, 1982; or
(ii) Is determined as a result of a claim filed prior to January 1,
1982, to have been totally disabled due to
[[Page 55025]]
pneumoconiosis at the time of death, or to have died due to
pneumoconiosis. Survivors of miners whose claims are filed on or after
January 1, 1982, must establish that the deceased miner's death was due
to pneumoconiosis in order to establish their entitlement to benefits,
except where entitlement is established under Sec. 718.306 of this
subchapter on a survivor's claim filed prior to June 30, 1982.
(b) Section 411(c)(5) of the Act provides for the payment of
benefits to the eligible survivors of a miner employed for 25 or more
years in the mines prior to June 30, 1971, if the miner's death
occurred on or before March 1, 1978, and if the claim was filed prior
to June 30, 1982, unless it is established that at the time of death,
the miner was not totally or partially disabled due to pneumoconiosis.
For the purposes of this part the term ``total disability'' shall mean
partial disability with respect to a claim for which eligibility is
established under section 411(c)(5) of the Act. See Sec. 718.306 of
this subchapter which implements this provision of the Act.
(c) The provisions contained in this subpart describe the
conditions of entitlement to benefits applicable to a miner, or a
surviving spouse, child, parent, brother, or sister, and the events
which establish or terminate entitlement to benefits.
(d) In order for an entitled miner or surviving spouse to qualify
for augmented benefits because of one or more dependents, such
dependents must meet relationship and dependency requirements with
respect to such beneficiary prescribed by or pursuant to the Act. Such
requirements are also set forth in this subpart.
Conditions and Duration of Entitlement: Miner
Sec. 725.202 Miner defined; condition of entitlement, miner.
(a) Miner defined. A ``miner'' for the purposes of this part is any
person who works or has worked in or around a coal mine or coal
preparation facility in the extraction, preparation, or transportation
of coal, and any person who works or has worked in coal mine
construction or maintenance in or around a coal mine or coal
preparation facility. There shall be a rebuttable presumption that any
person working in or around a coal mine or coal preparation facility is
a miner. This presumption may be rebutted by proof that:
(1) The person was not engaged in the extraction, preparation or
transportation of coal while working at the mine site, or in
maintenance or construction of the mine site; or
(2) The individual was not regularly employed in or around a coal
mine or coal preparation facility.
(b) Coal mine construction and transportation workers; special
provisions. A coal mine construction or transportation worker shall be
considered a miner to the extent such individual is or was exposed to
coal mine dust as a result of employment in or around a coal mine or
coal preparation facility. A transportation worker shall be considered
a miner to the extent that his or her work is integral to the
extraction or preparation of coal. A construction worker shall be
considered a miner to the extent that his or her work is integral to
the building of a coal or underground mine (see Sec. 725.101(a)(12) and
(30)).
(1) There shall be a rebuttable presumption that such individual
was exposed to coal mine dust during all periods of such employment
occurring in or around a coal mine or coal preparation facility for
purposes of:
(i) Determining whether such individual is or was a miner;
(ii) Establishing the applicability of any of the presumptions
described in section 411(c) of the Act and part 718 of this subchapter;
and
(iii) Determining the identity of a coal mine operator liable for
the payment of benefits in accordance with Sec. 725.495.
(2) The presumption may be rebutted by evidence which demonstrates
that:
(i) The individual was not regularly exposed to coal mine dust
during his or her work in or around a coal mine or coal preparation
facility; or
(ii) The individual did not work regularly in or around a coal mine
or coal preparation facility.
(c) A person who is or was a self-employed miner or independent
contractor, and who otherwise meets the requirements of this paragraph,
shall be considered a miner for the purposes of this part.
(d) Conditions of entitlement; miner. An individual is eligible for
benefits under this subchapter if the individual:
(1) Is a miner as defined in this section; and
(2) Has met the requirements for entitlement to benefits by
establishing that he or she:
(i) Has pneumoconiosis (see Sec. 718.202), and
(ii) The pneumoconiosis arose out of coal mine employment (see
Sec. 718.203), and
(iii) Is totally disabled (see Sec. 718.204(c)), and
(iv) The pneumoconiosis contributes to the total disability (see
Sec. 718.204(c)); and
(3) Has filed a claim for benefits in accordance with the
provisions of this part.
Sec. 725.203 Duration and cessation of entitlement; miner.
(a) An individual is entitled to benefits as a miner for each month
beginning with the first month on or after January 1, 1974, in which
the miner is totally disabled due to pneumoconiosis arising out of coal
mine employment.
(b) The last month for which such individual is entitled to
benefits is the month before the month during which either of the
following events first occurs:
(1) The miner dies; or
(2) The miner's total disability ceases (see Sec. 725.504).
(c) An individual who has been finally adjudged to be totally
disabled due to pneumoconiosis and is receiving benefits under the Act
shall promptly notify the Office and the responsible coal mine
operator, if any, if he or she engages in his or her usual coal mine
work or comparable and gainful work.
(d) Upon reasonable notice, an individual who has been finally
adjudged entitled to benefits shall submit to any additional tests or
examinations the Office deems appropriate if an issue arises pertaining
to the validity of the original award.
Conditions and Duration of Entitlement: Miner's Dependents
(Augmented Benefits)
Sec. 725.204 Determination of relationship; spouse.
(a) For the purpose of augmenting benefits, an individual will be
considered to be the spouse of a miner if:
(1) The courts of the State in which the miner is domiciled would
find that such individual and the miner validly married; or
(2) The courts of the State in which the miner is domiciled would
find, under the law they would apply in determining the devolution of
the miner's intestate personal property, that the individual is the
miner's spouse; or
(3) Under State law, such individual would have the right of a
spouse to share in the miner's intestate personal property; or
(4) Such individual went through a marriage ceremony with the miner
resulting in a purported marriage between them and which, but for a
legal impediment, would have been a valid marriage, unless the
individual entered into the purported marriage with knowledge that it
was not a valid marriage, or if such individual and the
[[Page 55026]]
miner were not living in the same household in the month in which a
request is filed that the miner's benefits be augmented because such
individual qualifies as the miner's spouse.
(b) The qualification of an individual for augmentation purposes
under this section shall end with the month before the month in which:
(1) The individual dies, or
(2) The individual who previously qualified as a spouse for
purposes of Sec. 725.520(c), entered into a valid marriage without
regard to this section, with a person other than the miner.
Sec. 725.205 Determination of dependency; spouse.
For the purposes of augmenting benefits, an individual who is the
miner's spouse (see Sec. 725.204) will be determined to be dependent
upon the miner if:
(a) The individual is a member of the same household as the miner
(see Sec. 725.232); or
(b) The individual is receiving regular contributions from the
miner for support (see Sec. 725.233(c)); or
(c) The miner has been ordered by a court to contribute to such
individual's support (see Sec. 725.233(e)); or
(d) The individual is the natural parent of the son or daughter of
the miner; or
(e) The individual was married to the miner (see Sec. 725.204) for
a period of not less than 1 year.
Sec. 725.206 Determination of relationship; divorced spouse.
For the purposes of augmenting benefits with respect to any claim
considered or reviewed under this part or part 727 of this subchapter
(see Sec. 725.4(d)), an individual will be considered to be the
divorced spouse of a miner if the individual's marriage to the miner
has been terminated by a final divorce on or after the 10th anniversary
of the marriage unless, if such individual was married to and divorced
from the miner more than once, such individual was married to the miner
in each calendar year of the period beginning 10 years immediately
before the date on which any divorce became final.
Sec. 725.207 Determination of dependency; divorced spouse.
For the purpose of augmenting benefits, an individual who is the
miner's divorced spouse (Sec. 725.206) will be determined to be
dependent upon the miner if:
(a) The individual is receiving at least one-half of his or her
support from the miner (see Sec. 725.233(g)); or
(b) The individual is receiving substantial contributions from the
miner pursuant to a written agreement (see Sec. 725.233(c) and (f)); or
(c) A court order requires the miner to furnish substantial
contributions to the individual's support (see Sec. 725.233(c) and
(e)).
Sec. 725.208 Determination of relationship; child.
As used in this section, the term ``beneficiary'' means only a
surviving spouse entitled to benefits at the time of death (see
Sec. 725.212), or a miner. An individual will be considered to be the
child of a beneficiary if:
(a) The courts of the State in which the beneficiary is domiciled
(see Sec. 725.231) would find, under the law they would apply, that the
individual is the beneficiary's child; or
(b) The individual is the legally adopted child of such
beneficiary; or
(c) The individual is the stepchild of such beneficiary by reason
of a valid marriage of the individual's parent or adopting parent to
such beneficiary; or
(d) The individual does not bear the relationship of child to such
beneficiary under paragraph (a), (b), or (c) of this section, but
would, under State law, have the same right as a child to share in the
beneficiary's intestate personal property; or
(e) The individual is the natural son or daughter of a beneficiary
but is not a child under paragraph (a), (b), or (c) of this section,
and is not considered to be the child of the beneficiary under
paragraph (d) of this section if the beneficiary and the mother or the
father, as the case may be, of the individual went through a marriage
ceremony resulting in a purported marriage between them which but for a
legal impediment (see Sec. 725.230) would have been a valid marriage;
or
(f) The individual is the natural son or daughter of a beneficiary
but is not a child under paragraph (a), (b), or (c) of this section,
and is not considered to be the child of the beneficiary under
paragraph (d) or (e) of this section, such individual shall
nevertheless be considered to be the child of the beneficiary if:
(1) The beneficiary, prior to his or her entitlement to benefits,
has acknowledged in writing that the individual is his or her son or
daughter, or has been decreed by a court to be the parent of the
individual, or has been ordered by a court to contribute to the support
of the individual (see Sec. 725.233(e)) because the individual is his
or her son or daughter; or
(2) Such beneficiary is shown by satisfactory evidence to be the
father or mother of the individual and was living with or contributing
to the support of the individual at the time the beneficiary became
entitled to benefits.
Sec. 725.209 Determination of dependency; child.
(a) For purposes of augmenting the benefits of a miner or surviving
spouse, the term ``beneficiary'' as used in this section means only a
miner or surviving spouse entitled to benefits (see Sec. 725.202 and
Sec. 725.212). An individual who is the beneficiary's child
(Sec. 725.208) will be determined to be, or to have been, dependent on
the beneficiary, if the child:
(1) Is unmarried; and
(2)(i) Is under 18 years of age; or
(ii) Is under a disability as defined in section 223(d) of the
Social Security Act, 42 U.S.C. 423(d); or
(iii) Is 18 years of age or older and is a student.
(b)(1) The term ``student'' means a ``full-time student'' as
defined in section 202(d)(7) of the Social Security Act, 42 U.S.C.
402(d)(7) (see Secs. 404.367 through 404.369 of this title), or an
individual under 23 years of age who has not completed 4 years of
education beyond the high school level and who is regularly pursuing a
full-time course of study or training at an institution which is:
(i) A school, college, or university operated or directly supported
by the United States, or by a State or local government or political
subdivision thereof; or
(ii) A school, college, or university which has been accredited by
a State or by a State-recognized or nationally-recognized accrediting
agency or body; or
(iii) A school, college, or university not so accredited but whose
credits are accepted, on transfer, by at least three institutions which
are so accredited; or
(iv) A technical, trade, vocational, business, or professional
school accredited or licensed by the Federal or a state government or
any political subdivision thereof, providing courses of not less than 3
months' duration that prepare the student for a livelihood in a trade,
industry, vocation, or profession.
(2) A student will be considered to be ``pursuing a full-time
course of study or training at an institution'' if the student is
enrolled in a noncorrespondence course of at least 13 weeks duration
and is carrying a subject load which is considered full-time for day
students under the institution's standards and practices. A student
beginning or ending a full-time course of study or training in part of
any month will be considered to
[[Page 55027]]
be pursuing such course for the entire month.
(3) A child is considered not to have ceased to be a student:
(i) During any interim between school years, if the interim does
not exceed 4 months and the child shows to the satisfaction of the
Office that he or she has a bona fide intention of continuing to pursue
a full-time course of study or training; or
(ii) During periods of reasonable duration in which, in the
judgment of the Office, the child is prevented by factors beyond the
child's control from pursuing his or her education.
(4) A student whose 23rd birthday occurs during a semester or the
enrollment period in which such student is pursuing a full-time course
of study or training shall continue to be considered a student until
the end of such period, unless eligibility is otherwise terminated.
Sec. 725.210 Duration of augmented benefits.
Augmented benefits payable on behalf of a spouse or divorced
spouse, or a child, shall begin with the first month in which the
dependent satisfies the conditions of relationship and dependency set
forth in this subpart. Augmentation of benefits on account of a
dependent continues through the month before the month in which the
dependent ceases to satisfy these conditions, except in the case of a
child who qualifies as a dependent because such child is a student. In
the latter case, benefits continue to be augmented through the month
before the first month during no part of which such child qualifies as
a student.
Sec. 725.211 Time of determination of relationship and dependency of
spouse or child for purposes of augmentation of benefits.
With respect to the spouse or child of a miner entitled to
benefits, and with respect to the child of a surviving spouse entitled
to benefits, the determination as to whether an individual purporting
to be a spouse or child is related to or dependent upon such miner or
surviving spouse shall be based on the facts and circumstances present
in each case, at the appropriate time.
Conditions and Duration of Entitlement: Miner's Survivors
Sec. 725.212 Condition of entitlement; surviving spouse or surviving
divorced spouse.
(a) An individual who is the surviving spouse or surviving divorced
spouse of a miner is eligible for benefits if such individual:
(1) Is not married;
(2) Was dependent on the miner at the pertinent time; and
(3) The deceased miner either:
(i) Was receiving benefits under section 415 or part C of title IV
of the Act at the time of death as a result of a claim filed prior to
January 1, 1982; or
(ii) Is determined as a result of a claim filed prior to January 1,
1982, to have been totally disabled due to pneumoconiosis at the time
of death or to have died due to pneumoconiosis. A surviving spouse or
surviving divorced spouse of a miner whose claim is filed on or after
January 1, 1982, must establish that the deceased miner's death was due
to pneumoconiosis in order to establish entitlement to benefits, except
where entitlement is established under Sec. 718.306 of this subchapter
on a claim filed prior to June 30, 1982.
(b) If more than one spouse meets the conditions of entitlement
prescribed in paragraph (a) of this section, then each spouse will be
considered a beneficiary for purposes of section 412(a)(2) of the Act
without regard to the existence of any other entitled spouse or
spouses.
Sec. 725.213 Duration of entitlement; surviving spouse or surviving
divorced spouse.
(a) An individual is entitled to benefits as a surviving spouse, or
as a surviving divorced spouse, for each month beginning with the first
month in which all of the conditions of entitlement prescribed in
Sec. 725.212 are satisfied.
(b) The last month for which such individual is entitled to such
benefits is the month before the month in which either of the following
events first occurs:
(1) The surviving spouse or surviving divorced spouse marries; or
(2) The surviving spouse or surviving divorced spouse dies.
(c) A surviving spouse or surviving divorced spouse whose
entitlement to benefits has been terminated pursuant to
Sec. 725.213(b)(1) may thereafter again become entitled to such
benefits upon filing application for such reentitlement, beginning with
the first month after the marriage ends and such individual meets the
requirements of Sec. 725.212. The individual shall not be required to
reestablish the miner's entitlement to benefits (Sec. 725.212(a)(3)(i))
or the miner's death due to pneumoconiosis (Sec. 725.212(a)(3)(ii)).
Sec. 725.214 Determination of relationship; surviving spouse.
An individual shall be considered to be the surviving spouse of a
miner if:
(a) The courts of the State in which the miner was domiciled (see
Sec. 725.231) at the time of his or her death would find that the
individual and the miner were validly married; or
(b) The courts of the State in which the miner was domiciled (see
Sec. 725.231) at the time of the miner's death would find that the
individual was the miner's surviving spouse; or
(c) Under State law, such individual would have the right of the
spouse to share in the miner's interstate personal property; or
(d) Such individual went through a marriage ceremony with the miner
resulting in a purported marriage between them and which but for a
legal impediment (see Sec. 725.230) would have been a valid marriage,
unless such individual entered into the purported marriage with
knowledge that it was not a valid marriage, or if such individual and
the miner were not living in the same household at the time of the
miner's death.
Sec. 725.215 Determination of dependency; surviving spouse.
An individual who is the miner's surviving spouse (see
Sec. 725.214) shall be determined to have been dependent on the miner
if, at the time of the miner's death:
(a) The individual was living with the miner (see Sec. 725.232); or
(b) The individual was dependent upon the miner for support or the
miner has been ordered by a court to contribute to such individual's
support (see Sec. 725.233); or
(c) The individual was living apart from the miner because of the
miner's desertion or other reasonable cause; or
(d) The individual is the natural parent of the miner's son or
daughter;
(e) The individual had legally adopted the miner's son or daughter
while the individual was married to the miner and while such son or
daughter was under the age of 18; or
(f) The individual was married to the miner at the time both of
them legally adopted a child under the age of 18; or
(g) (1) The individual was married to the miner for a period of not
less than 9 months immediately before the day on which the miner died,
unless the miner's death:
(i) Is accidental (as defined in paragraph (g)(2) of this section),
or
(ii) Occurs in line of duty while the miner is a member of a
uniformed service serving on active duty (as defined in Sec. 404.1019
of this title), and the surviving spouse was married to the miner for a
period of not less than 3 months immediately prior to the day on which
such miner died.
[[Page 55028]]
(2) For purposes of paragraph (g)(l)(i) of this section, the death
of a miner is accidental if such individual received bodily injuries
solely through violent, external, and accidental means, and as a direct
result of the bodily injuries and independently of all other causes,
dies not later than 3 months after the day on which such miner receives
such bodily injuries. The term ``accident'' means an event that was
unpremeditated and unforeseen from the standpoint of the deceased
individual. To determine whether the death of an individual did, in
fact, result from an accident the adjudication officer will consider
all the circumstances surrounding the casualty. An intentional and
voluntary suicide will not be considered to be death by accident;
however, suicide by an individual who is so incompetent as to be
incapable of acting intentionally and voluntarily will be considered to
be a death by accident. In no event will the death of an individual
resulting from violent and external causes be considered a suicide
unless there is direct proof that the fatal injury was self-inflicted.
(3) The provisions of this paragraph (g) shall not apply if the
adjudication officer determines that at the time of the marriage
involved, the miner would not reasonably have been expected to live for
9 months.
Sec. 725.216 Determination of relationship; surviving divorced spouse.
An individual will be considered to be the surviving divorced
spouse of a deceased miner in a claim considered under this part or
reviewed under part 727 of this subchapter (see Sec. 725.4(d)), if such
individual's marriage to the miner had been terminated by a final
divorce on or after the 10th anniversary of the marriage unless, if
such individual was married to and divorced from the miner more than
once, such individual was married to such miner in each calendar year
of the period beginning 10 years immediately before the date on which
any divorce became final and ending with the year in which the divorce
became final.
Sec. 725.217 Determination of dependency; surviving divorced spouse.
An individual who is the miner's surviving divorced spouse (see
Sec. 725.216) shall be determined to have been dependent on the miner
if, for the month before the month in which the miner died:
(a) The individual was receiving at least one-half of his or her
support from the miner (see Sec. 725.233(g)); or
(b) The individual was receiving substantial contributions from the
miner pursuant to a written agreement (see Sec. 725.233(c) and (f)); or
(c) A court order required the miner to furnish substantial
contributions to the individual's support (see Sec. 725.233(c) and
(e)).
Sec. 725.218 Conditions of entitlement; child.
(a) An individual is entitled to benefits where he or she meets the
required standards of relationship and dependency under this subpart
(see Sec. 725.220 and Sec. 725.221) and is the child of a deceased
miner who:
(1) Was receiving benefits under section 415 or part C of title IV
of the Act as a result of a claim filed prior to January 1, 1982, or
(2) Is determined as a result of a claim filed prior to January 1,
1982, to have been totally disabled due to pneumoconiosis at the time
of death, or to have died due to pneumoconiosis. A surviving dependent
child of a miner whose claim is filed on or after January 1, 1982, must
establish that the miner's death was due to pneumoconiosis in order to
establish entitlement to benefits, except where entitlement is
established under Sec. 718.306 of this subchapter on a claim filed
prior to June 30, 1982.
(b) A child is not entitled to benefits for any month for which a
miner, or the surviving spouse or surviving divorced spouse of a miner,
establishes entitlement to benefits.
Sec. 725.219 Duration of entitlement; child.
(a) An individual is entitled to benefits as a child for each month
beginning with the first month in which all of the conditions of
entitlement prescribed in Sec. 725.218 are satisfied.
(b) The last month for which such individual is entitled to such
benefits is the month before the month in which any one of the
following events first occurs:
(1) The child dies;
(2) The child marries;
(3) The child attains age 18; and
(i) Is not a student (as defined in Sec. 725.209(b)) during any
part of the month in which the child attains age 18; and
(ii) Is not under a disability (as defined in
Sec. 725.209(a)(2)(ii)) at that time;
(4) If the child's entitlement beyond age 18 is based on his or her
status as a student, the earlier of:
(i) The first month during no part of which the child is a student;
or
(ii) The month in which the child attains age 23 and is not under a
disability (as defined in Sec. 725.209(a)(2)(ii)) at that time;
(5) If the child's entitlement beyond age 18 is based on
disability, the first month in no part of which such individual is
under a disability.
(c) A child whose entitlement to benefits terminated with the month
before the month in which the child attained age 18, or later, may
thereafter (provided such individual is not married) again become
entitled to such benefits upon filing application for such
reentitlement, beginning with the first month after termination of
benefits in which such individual is a student and has not attained the
age of 23.
Sec. 725.220 Determination of relationship; child.
For purposes of determining whether an individual may qualify for
benefits as the child of a deceased miner, the provisions of
Sec. 725.208 shall be applicable. As used in this section, the term
``beneficiary'' means only a surviving spouse entitled to benefits at
the time of such surviving spouse's death (see Sec. 725.212), or a
miner. For purposes of a survivor's claim, an individual will be
considered to be a child of a beneficiary if:
(a) The courts of the State in which such beneficiary is domiciled
(see Sec. 725.231) would find, under the law they would apply in
determining the devolution of the beneficiary's intestate personal
property, that the individual is the beneficiary's child; or
(b) Such individual is the legally adopted child of such
beneficiary; or
(c) Such individual is the stepchild of such beneficiary by reason
of a valid marriage of such individual's parent or adopting parent to
such beneficiary; or
(d) Such individual does not bear the relationship of child to such
beneficiary under paragraph (a), (b), or (c) of this section, but
would, under State law, have the same right as a child to share in the
beneficiary's intestate personal property; or
(e) Such individual is the natural son or daughter of a beneficiary
but does not bear the relationship of child to such beneficiary under
paragraph (a), (b), or (c) of this section, and is not considered to be
the child of the beneficiary under paragraph (d) of this section, such
individual shall nevertheless be considered to be the child of such
beneficiary if the beneficiary and the mother or father, as the case
may be, of such individual went through a marriage ceremony resulting
in a purported marriage between them which but for a legal impediment
(see Sec. 725.230) would have been a valid marriage; or
(f) Such individual is the natural son or daughter of a beneficiary
but does not have the relationship of child to such beneficiary under
paragraph (a), (b), or
[[Page 55029]]
(c) of this section, and is not considered to be the child of the
beneficiary under paragraph (d) or (e) of this section, such individual
shall nevertheless be considered to be the child of such beneficiary
if:
(1) Such beneficiary, prior to his or her entitlement to benefits,
has acknowledged in writing that the individual is his or her son or
daughter, or has been decreed by a court to be the father or mother of
the individual, or has been ordered by a court to contribute to the
support of the individual (see Sec. 725.233(a)) because the individual
is a son or daughter; or
(2) Such beneficiary is shown by satisfactory evidence to be the
father or mother of the individual and was living with or contributing
to the support of the individual at the time such beneficiary became
entitled to benefits.
Sec. 725.221 Determination of dependency; child.
For the purposes of determining whether a child was dependent upon
a deceased miner, the provisions of Sec. 725.209 shall be applicable,
except that for purposes of determining the eligibility of a child who
is under a disability as defined in section 223(d) of the Social
Security Act, such disability must have begun before the child attained
age 22, or in the case of a student, before the child ceased to be a
student.
Sec. 725.222 Conditions of entitlement; parent, brother, or sister.
(a) An individual is eligible for benefits as a surviving parent,
brother or sister if all of the following requirements are met:
(1) The individual is the parent, brother, or sister of a deceased
miner;
(2) The individual was dependent on the miner at the pertinent
time;
(3) Proof of support is filed within 2 years after the miner's
death, unless the time is extended for good cause (Sec. 725.226);
(4) In the case of a brother or sister, such individual also:
(i) Is under 18 years of age; or
(ii) Is under a disability as defined in section 223(d) of the
Social Security Act, 42 U.S.C. 423(d), which began before such
individual attained age 22, or in the case of a student, before the
student ceased to be a student; or
(iii) Is a student (see Sec. 725.209(b)); or
(iv) Is under a disability as defined in section 223(d) of the
Social Security Act, 42 U.S.C. 423(d), at the time of the miner's
death;
(5) The deceased miner:
(i) Was entitled to benefits under section 415 or part C of title
IV of the Act as a result of a claim filed prior to January 1, 1982; or
(ii) Is determined as a result of a claim filed prior to January 1,
1982, to have been totally disabled due to pneumoconiosis at the time
of death or to have died due to pneumoconiosis. A surviving dependent
parent, brother or sister of a miner whose claim is filed on or after
January 1, 1982, must establish that the miner's death was due to
pneumoconiosis in order to establish entitlement to benefits, except
where entitlement is established under Sec. 718.306 of this subchapter
on a claim filed prior to June 30, 1982.
(b)(1) A parent is not entitled to benefits if the deceased miner
was survived by a spouse or child at the time of such miner's death.
(2) A brother or sister is not entitled to benefits if the deceased
miner was survived by a spouse, child, or parent at the time of such
miner's death.
Sec. 725.223 Duration of entitlement; parent, brother, or sister.
(a) A parent, sister, or brother is entitled to benefits beginning
with the month all the conditions of entitlement described Sec. 725.222
are met.
(b) The last month for which such parent is entitled to benefits is
the month in which the parent dies.
(c) The last month for which such brother or sister is entitled to
benefits is the month before the month in which any of the following
events first occurs:
(1) The individual dies;
(2)(i) The individual marries or remarries; or
(ii) If already married, the individual received support in any
amount from his or her spouse;
(3) The individual attains age 18; and
(i) Is not a student (as defined in Sec. 725.209(b)) during any
part of the month in which the individual attains age 18; and
(ii) is not under a disability (as defined in
Sec. 725.209(a)(2)(ii)) at that time;
(4) If the individual's entitlement beyond age 18 is based on his
or her status as a student, the earlier of:
(i) The first month during no part of which the individual is a
student; or
(ii) The month in which the individual attains age 23 and is not
under a disability (as defined in Sec. 725.209(a)(2)(ii)) at that time;
(5) If the individual's entitlement beyond age 18 is based on
disability, the first month in no part of which such individual is
under a disability.
Sec. 725.224 Determination of relationship; parent, brother, or
sister.
(a) An individual will be considered to be the parent, brother, or
sister of a miner if the courts of the State in which the miner was
domiciled (see Sec. 225.231) at the time of death would find, under the
law they would apply, that the individual is the miner's parent,
brother, or sister.
(b) Where, under State law, the individual is not the miner's
parent, brother, or sister, but would, under State law, have the same
status (i.e., right to share in the miner's intestate personal
property) as a parent, brother, or sister, the individual will be
considered to be the parent, brother, or sister as appropriate.
Sec. 725.225 Determination of dependency; parent, brother, or sister.
An individual who is the miner's parent, brother, or sister will be
determined to have been dependent on the miner if, during the 1-year
period immediately prior to the miner's death:
(a) The individual and the miner were living in the same household
(see Sec. 725.232); and
(b) The individual was totally dependent on the miner for support
(see Sec. 725.233(h)).
Sec. 725.226 ``Good cause'' for delayed filing of proof of support.
(a) What constitutes ``good cause.'' ``Good cause'' may be found
for failure to file timely proof of support where the parent, brother,
or sister establishes to the satisfaction of the Office that such
failure to file was due to:
(1) Circumstances beyond the individual's control, such as extended
illness, mental, or physical incapacity, or communication difficulties;
or
(2) Incorrect or incomplete information furnished the individual by
the Office; or
(3) Efforts by the individual to secure supporting evidence without
a realization that such evidence could be submitted after filing proof
of support.
(b) What does not constitute ``good cause.'' ``Good cause'' for
failure to file timely proof of support (see Sec. 725.222(a)(3)) does
not exist when there is evidence of record in the Office that the
individual was informed that he or she should file within the
prescribed period and he or she failed to do so deliberately or through
negligence.
Sec. 725.227 Time of determination of relationship and dependency of
survivors.
The determination as to whether an individual purporting to be an
entitled survivor of a miner or beneficiary was related to, or
dependent upon, the miner is made after such individual files a claim
for benefits as a survivor. Such determination is based on the facts
and circumstances with respect to a reasonable period of time ending
with
[[Page 55030]]
the miner's death. A prior determination that such individual was, or
was not, a dependent for the purposes of augmenting the miner's
benefits for a certain period, is not determinative of the issue of
whether the individual is a dependent survivor of such miner.
Sec. 725.228 Effect of conviction of felonious and intentional
homicide on entitlement to benefits.
An individual who has been convicted of the felonious and
intentional homicide of a miner or other beneficiary shall not be
entitled to receive any benefits payable because of the death of such
miner or other beneficiary, and such person shall be considered
nonexistent in determining the entitlement to benefits of other
individuals.
Terms Used in this Subpart
Sec. 725.229 Intestate personal property.
References in this subpart to the ``same right to share in the
intestate personal property'' of a deceased miner (or surviving spouse)
refer to the right of an individual to share in such distribution in
the individual's own right and not the right of representation.
Sec. 725.230 Legal impediment.
For purposes of this subpart, ``legal impediment'' means an
impediment resulting from the lack of dissolution of a previous
marriage or otherwise arising out of such previous marriage or its
dissolution or resulting from a defect in the procedure followed in
connection with the purported marriage ceremony--for example, the
solemnization of a marriage only through a religious ceremony in a
country which requires a civil ceremony for a valid marriage.
Sec. 725.231 Domicile.
(a) For purposes of this subpart, the term ``domicile'' means the
place of an individual's true, fixed, and permanent home.
(b) The domicile of a deceased miner or surviving spouse is
determined as of the time of death.
(c) If an individual was not domiciled in any State at the
pertinent time, the law of the District of Columbia is applied.
Sec. 725.232 Member of the same household--``living with,'' ``living
in the same household,'' and ``living in the miner's household,''
defined.
(a) Defined. (1) The term ``member of the same household'' as used
in section 402(a)(2) of the Act (with respect to a spouse); the term
``living with'' as used in section 402(e) of the Act (with respect to a
surviving spouse); and the term ``living in the same household'' as
used in this subpart, means that a husband and wife were customarily
living together as husband and wife in the same place.
(2) The term ``living in the miner's household'' as used in section
412(a)(5) of the Act (with respect to a parent, brother, or sister)
means that the miner and such parent, brother, or sister were sharing
the same residence.
(b) Temporary absence. The temporary absence from the same
residence of either the miner, or the miner's spouse, parent, brother,
or sister (as the case may be), does not preclude a finding that one
was ``living with'' the other, or that they were ``members of the same
household.'' The absence of one such individual from the residence in
which both had customarily lived shall, in the absence of evidence to
the contrary, be considered temporary:
(1) If such absence was due to service in the Armed Forces of the
United States; or
(2) If the period of absence from his or her residence did not
exceed 6 months and the absence was due to business or employment
reasons, or because of confinement in a penal institution or in a
hospital, nursing home, or other curative institution; or
(3) In any other case, if the evidence establishes that despite
such absence they nevertheless reasonably expected to resume physically
living together.
(c) Relevant period of time. (1) The determination as to whether a
surviving spouse had been ``living with'' the miner shall be based upon
the facts and circumstances as of the time of the death of the miner.
(2) The determination as to whether a spouse is a ``member of the
same household'' as the miner shall be based upon the facts and
circumstances with respect to the period or periods of time as to which
the issue of membership in the same household is material.
(3) The determination as to whether a parent, brother, or sister
was ``living in the miner's household'' shall take account of the 1-
year period immediately prior to the miner's death.
Sec. 725.233 Support and contributions.
(a) Support defined. The term ``support'' includes food, shelter,
clothing, ordinary medical expenses, and other ordinary and customary
items for the maintenance of the person supported.
(b) Contributions defined. The term ``contributions'' refers to
contributions actually provided by the contributor from such
individual's property, or the use thereof, or by the use of such
individual's own credit.
(c) Regular contributions and substantial contributions defined.
The terms ``regular contributions'' and ``substantial contributions''
mean contributions that are customary and sufficient to constitute a
material factor in the cost of the individual's support.
(d) Contributions and community property. When a spouse receives
and uses for his or her support income from services or property, and
such income, under applicable State law, is the community property of
the wife and her husband, no part of such income is a ``contribution''
by one spouse to the other's support regardless of the legal interest
of the donor. However, when a spouse receives and uses for support,
income from the services and the property of the other spouse and,
under applicable State law, such income is community property, all of
such income is considered to be a contribution by the donor to the
spouse's support.
(e) Court order for support defined. References to a support order
in this subpart means any court order, judgment, or decree of a court
of competent jurisdiction which requires regular contributions that are
a material factor in the cost of the individual's support and which is
in effect at the applicable time. If such contributions are required |
ESA Proposed Rule