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]
Due to the large file size, this document has been divided
into three parts:
Volume 64, Number 195, Page 55065-55072
[[pp. 55065-55072]] Regulations
Implementing the Federal Coal Mine Health and Safety
Act of 1969, as Amended
[[Continued from page 55064]]
[[Page 55065]]
(3) In the form of a letter of credit issued by a financial
institution satisfactory to the Office (except that a letter of credit
shall not be sufficient by itself to satisfy a self-insurer's
obligations under this part); or
(4) By funding a trust pursuant to section 501(c)(21) of the
Internal Revenue Code (26 U.S.C.).
(c) Any applicant who cannot meet the security deposit requirements
imposed by the Office should proceed to obtain a commercial policy or
contract of insurance. Any applicant for authorization to self-insure
whose application has been rejected or who believes that the security
deposit requirements imposed by the Office are excessive may, in
writing, request that the Office review its determination. A request
for review should contain such information as may be necessary to
support the request that the amount of security required be reduced.
(d) Upon receipt of any such request the Office shall review its
previous determination in light of any new or additional information
submitted and inform the applicant whether or not a reduction in the
amount of security initially required is warranted.
Sec. 726.105 Fixing the amount of security.
The amount of security to be fixed and required by the Office shall
be such as the Office shall deem to be necessary and sufficient to
secure the performance by the applicant of all obligations imposed upon
him as an operator by the Act. In determining the amount of security
required, the factors that the Office will consider include, but are
not limited to, the operator's net worth, the existence of a guarantee
by a parent corporation, and the operator's existing liability for
benefits. Other factors such as the Office may deem relevant to any
particular case shall be considered. The amount of security which shall
be required may be increased or decreased when experience or changed
conditions so warrant.
Sec. 726.106 Type of security.
(a) The Office shall determine the type or types of security which
an applicant shall or may procure. (See Sec. 726.104(b).)
(b) In the event the indemnity bond option is selected such
indemnity bond shall be in such form and contain such provisions as the
Office may prescribe: Provided, That only corporations may act as
sureties on such indemnity bonds. In each case in which the surety on
any such bond is a surety company, such company must be one approved by
the U.S. Treasury Department under the laws of the United States and
the applicable rules and regulations governing bonding companies (see
Department of Treasury's Circular-570).
(c) An applicant for authorization to self-insure authorized to
deposit negotiable securities to secure his obligations under the Act
in the amount fixed by the Office shall deposit any negotiable
securities acceptable as security for the deposit of public moneys of
the United States under regulations issued by the Secretary of the
Treasury. (See 31 CFR part 225.) The approval, valuation, acceptance,
and custody of such securities is hereby committed to the several
Federal Reserve Banks and the Treasurer of the United States.
Sec. 726.107 Deposits of negotiable securities with Federal Reserve
banks or the Treasurer of the United States; authority to sell such
securities; interest thereon.
Deposits of securities provided for by the regulations in this part
shall be made with any Federal Reserve bank or any branch of a Federal
Reserve bank designated by the Office, or the Treasurer of the United
States, and shall be held subject to the order of the Office with power
in the Office, in its discretion in the event of default by the said
self-insurer, to collect the interest as it may become due, to sell the
securities or any of them as may be required to discharge the
obligations of the self-insurer under the Act and to apply the proceeds
to the payment of any benefits or medical expenses for which the self-
insurer may be liable. The Office may, however, whenever it deems it
unnecessary to resort to such securities for the payment of benefits,
authorize the self-insurer to collect interest on the securities
deposited by him.
Sec. 726.108 Withdrawal of negotiable securities.
No withdrawal of negotiable securities deposited by a self-insurer,
shall be made except upon authorization by the Office. A self-insurer
discontinuing business, or discontinuing operations within the purview
of the Act, or providing security for the payment of benefits by
commercial insurance under the provisions of the Act may apply to the
Office for the withdrawal of securities deposited under the regulations
in this part. With such application shall be filed a sworn statement
setting forth:
(a) A list of all outstanding cases in which benefits are being
paid, with the names of the miners and other beneficiaries, giving a
statement of the amounts of benefits paid and the periods for which
such benefits have been paid; and
(b) A similar list of all pending cases in which no benefits have
as yet been paid. In such cases withdrawals may be authorized by the
Office of such securities as in the opinion of the Office may not be
necessary to provide adequate security for the payment of outstanding
and potential liabilities of such self-insurer under the Act.
Sec. 726.109 Increase or reduction in the amount of security.
Whenever in the opinion of the Office the amount of security given
by the self-insurer is insufficient to afford adequate security for the
payment of benefits and medical expenses under the Act, the self-
insurer shall, upon demand by the Office, file such additional security
as the Office may require. At any time upon application of a self-
insurer, or on the initiative of the Office, when in its opinion the
facts warrant, the amount of security may be reduced. A self-insurer
seeking such reduction shall furnish such information as the Office may
request relative to his current affairs, the nature and hazard of the
work of his employees, the amount of the payroll of his employees
engaged in coal mine employment within the purview of the Act, his
financial condition, and such other evidence as may be deemed material,
including a record of payment of benefits made by him.
Sec. 726.110 Filing of agreement and undertaking.
(a) In addition to the requirement that adequate security be
procured as set forth in this subpart, the applicant for the
authorization to self-insure shall as a condition precedent to
receiving authorization to act as a self-insurer, execute and file with
the Office an agreement and undertaking in a form prescribed and
provided by the Office in which the applicant shall agree:
(1) To pay when due, as required by the provisions of said Act, all
benefits payable on account of total disability or death of any of its
employee-miners within the purview of the Act;
(2) In such cases to furnish medical, surgical, hospital, and other
attendance, treatment, and care as required by the provisions of the
Act;
(3) To provide security in a form approved by the Office (see
Sec. 726.104) and in an amount established by the Office (see
Sec. 726.105), accordingly as elected in the application;
(4) To authorize the Office to sell any negotiable securities so
deposited or any part thereof and from the proceeds thereof to pay such
benefits, medical, and other expenses and any accrued
[[Page 55066]]
penalties imposed by law as it may find to be due and payable.
(b) At such time when an applicant has provided the requisite
security, such applicant shall send a completed agreement and
undertaking together with satisfactory proof that his obligations and
liabilities under the Act have been secured to the Office in
Washington, D.C.
Sec. 726.111 Notice of authorization to self-insure.
Upon receipt of a completed agreement and undertaking and
satisfactory proof that adequate security has been provided an
applicant for authorization to self-insure shall be notified by the
Office in writing, that he is authorized to self-insure to meet the
obligations imposed upon such applicant by section 415 and part C of
title IV of the Act.
Sec. 726.112 Reports required of self-insurer; examination of accounts
of self-insurer.
(a) Each operator who has been authorized to self-insure under this
part shall submit to the Office reports containing such information as
the Office may from time to time require or prescribe.
(b) Whenever it deems it to be necessary, the Office may inspect or
examine the books of account, records, and other papers of a self-
insurer for the purpose of verifying any financial statement submitted
to the Office by the self-insurer or verifying any information
furnished to the Office in any report required by this section, or any
other section of the regulations in this part, and such self-insurer
shall permit the Office or its duly authorized representative to make
such an inspection or examination as the Office shall require. In lieu
of this requirement the Office may in its discretion accept an adequate
report of a certified public accountant.
(c) Failure to submit or make available any report or information
requested by the Office from an authorized self-insurer pursuant to
this section may, in appropriate circumstances result in a revocation
of the authorization to self-insure.
Sec. 726.113 Disclosure of confidential information.
Any financial information or records, or other information relating
to the business of an authorized self-insurer or applicant for the
authorization of self-insurance obtained by the Office shall be exempt
from public disclosure to the extent provided in 5 U.S.C. 552(b) and
the applicable regulations of the Department of Labor promulgated
thereunder. (See 29 CFR part 70.)
Sec. 726.114 Period of authorization as self-insurer; reauthorization.
(a) No initial authorization as a self-insurer shall be granted for
a period in excess of 18 months. A self-insurer who has made an
adequate deposit of negotiable securities in compliance with
Secs. 726.106(c) and 726.107 will be reauthorized for the ensuing
fiscal year without additional security if the Office finds that his
experience as a self-insurer warrants such action. If it is determined
that such self-insurer's experience indicates a need for the deposit of
additional security, no reauthorization shall be issued for the ensuing
fiscal year until such time as the Office receives satisfactory proof
that the requisite amount of additional securities have been deposited.
A self-insurer who currently has on file an indemnity bond, will
receive from the Office each year a bond form for execution in
contemplation of reauthorization, and the submission of such bond duly
executed in the amount indicated by the Office will be deemed and
treated as such self-insurer's application for reauthorization for the
ensuing Federal fiscal year.
(b) In each case for which there is an approved change in the
amount of security provided, a new agreement and undertaking shall be
executed.
(c) Each operator authorized to self-insure under this part shall
apply for reauthorization for any period during which it engages in the
operation of a coal mine and for additional periods after it ceases
operating a coal mine. Upon application by the operator, accompanied by
proof that the security posted by the operator is sufficient to secure
all benefits potentially payable to miners formerly employed by the
operator, the Office shall issue a certification that the operator is
exempt from the requirements of this part based on its prior operation
of a coal mine. The provisions of subpart D of this part shall be
applicable to any operator that fails to apply for reauthorization in
accordance with the provisions of this section.
Sec. 726.115 Revocation of authorization to self-insure.
The Office may for good cause shown suspend or revoke the
authorization of any self-insurer. Failure by a self-insurer to comply
with any provision or requirement of law or of the regulations in this
part, or with any lawful order or communication of the Office, or the
failure or insolvency of the surety on his indemnity bond, or
impairment of financial responsibility of such self-insurer, may be
deemed good cause for such suspension or revocation.
Subpart C--Insurance Contracts
Sec. 726.201 Insurance contracts--generally.
Each operator of a coal mine who has not obtained authorization as
a self-insurer shall purchase a policy or enter into a contract with a
commercial insurance carrier or State agency. Pursuant to authority
contained in sections 422(a) and 423 (b) and (c) of part C of title IV
of the Act, this subpart describes a number of provisions which are
required to be incorporated in a policy or contract of insurance
obtained by a coal mine operator for the purpose of meeting the
responsibility imposed upon such operator by the Act in respect of the
total disability or death of miners due to pneumoconiosis.
Sec. 726.202 Who may underwrite an operator's liability.
Each coal mine operator who is not authorized to self-insure shall
insure and keep insured the payment of benefits as required by the Act
with any stock company or mutual company or association, or with any
other person, or fund, including any State fund while such company,
association, person, or fund is authorized under the law of any State
to insure workmen's compensation.
Sec. 726.203 Federal Coal Mine Health and Safety Act endorsement.
(a) The following form of endorsement shall be attached and
applicable to the standard workmen's compensation and employer's
liability policy prepared by the National Council on Compensation
Insurance affording coverage under the Federal Coal Mine Health and
Safety Act of 1969, as amended:
It is agreed that: (1) With respect to operations in a State
designated in item 3 of the declarations, the unqualified term
``workmen's compensation law'' includes part C of title IV of the
Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C. section
931-936, and any laws amendatory thereto, or supplementary thereto,
which may be or become effective while this policy is in force, and
definition (a) of Insuring Agreement III is amended accordingly; (2)
with respect to such insurance as is afforded by this endorsement,
(a) the States, if any, named below, shall be deemed to be
designated in item 3 of the declaration; (b) Insuring Agreement
IV(2) is amended to read ``by disease caused or aggravated by
exposure of which the last day of the last exposure, in the
employment of the insured, to conditions causing the disease occurs
during the policy period, or occurred prior to (effective date) and
claim based on such disease is first filed against the insured
during the policy period.''
(b) The term ``effective date'' as used in the endorsement
provisions
[[Page 55067]]
contained in paragraph (a) of this section shall be construed to mean
the effective date of the first policy or contract of insurance
procured by an operator for purposes of meeting the obligations imposed
on such operator by section 423 of part C of title IV of the Act.
(c) The Act contains a number of provisions and imposes a number of
requirements on operators which differ in varying degrees from
traditional workmen's compensation concepts. To avoid unnecessary
administrative delays and expense which might be occasioned by the
drafting of an entirely new standard workmen's compensation policy
specially tailored to the Act, the Office has determined that the
existing standard workmen's compensation policy subject to the
endorsement provisions contained in paragraph (a) of this section shall
be acceptable for purposes of writing commercial insurance coverage
under the Act. However, to avoid undue disputes over the meaning of
certain policy provisions and in accordance with the authority
contained in section 423(b)(3) of the Act, the Office has determined
that the following requirements shall be applicable to all commercial
insurance policies obtained by an operator for the purpose of insuring
any liability incurred pursuant to the Act:
(1) Operator liability. (i) Section 415 and part C of title IV of
the Act provide coverage for total disability or death due to
pneumoconiosis to all claimants who meet the eligibility requirements
imposed by the Act. Section 422 of the Act and the regulations duly
promulgated thereunder (part 725 of this subchapter) set forth the
conditions under which a coal mine operator may be adjudicated liable
for the payment of benefits to an eligible claimant for any period
subsequent to December 31, 1973.
(ii) Section 422(c) of the Act prescribes that except as provided
in 422(i) (see paragraph (c)(2) of this section) an operator may be
adjudicated liable for the payment of benefits in any case if the total
disability or death due to pneumoconiosis upon which the claim is
predicated arose at least in part out of employment in a mine in any
period during which it was operated by such operator. The Act does not
require that such employment which contributed to or caused the total
disability or death due to pneumoconiosis occur subsequent to any
particular date in time. The Secretary in establishing a formula for
determining the operator liable for the payment of benefits (see
subpart D of part 725 of this subchapter) in respect of any particular
claim, must therefore, within the framework and intent of title IV of
the Act find in appropriate cases that an operator is liable for the
payment of benefits for some period after December 31, 1973, even
though the employment upon which an operator's liability is based
occurred prior to July 1, 1973, or prior to the effective date of the
Act or the effective date of any amendments thereto, or prior to the
effective date of any policy or contract of insurance obtained by such
operator. The endorsement provisions contained in paragraph (a) of this
section shall be construed to incorporate these requirements in any
policy or contract of insurance obtained by an operator to meet the
obligations imposed on such operator by section 423 of the Act.
(2) Successor liability. Section 422(i) of part C of title IV of
the Act requires that a coal mine operator who after December 30, 1969,
acquired his mine or substantially all of the assets thereof from a
person who was an operator of such mine on or after December 30, 1969,
shall be liable for and shall secure the payment of benefits which
would have been payable by the prior operator with respect to miners
previously employed in such mine if the acquisition had not occurred
and the prior operator had continued to operate such mine. In the case
of an operator who is determined liable for the payment of benefits
under section 422(i) of the Act and part 725 of this subchapter, such
liability shall accrue to such operator regardless of the fact that the
miner on whose total disability or death the claim is predicated was
never employed by such operator in any capacity. The endorsement
provisions contained in paragraph (a) of this section shall be
construed to incorporate this requirement in any policy or contract of
insurance obtained by an operator to meet the obligations imposed on
such operator by section 423 of the Act.
(3) Medical eligibility. Pursuant to section 422(h) of part C of
title IV of the Act and the regulations described therein (see subpart
D of part 410 of this title) benefits shall be paid to eligible
claimants on account of total disability or death due to pneumoconiosis
and in cases where the miner on whose death a claim is predicated was
totally disabled by pneumoconiosis at the time of his death regardless
of the cause of such death. The endorsement provisions contained in
paragraph (a) of this section shall be construed to incorporate these
requirements in any policy or contract of insurance obtained by an
operator to meet the obligations imposed on such operator by section
423 of the Act.
(4) Payment of benefits, rates. Section 422(c) of the Act by
incorporating section 412(a) of the Act requires the payment of
benefits at a rate equal to 50 per centum of the minimum monthly
payment to which a Federal employee in grade GS-2, who is totally
disabled is entitled at the time of payment under Chapter 81 of title
5, United States Code. These benefits are augmented on account of
eligible dependents as appropriate (see section 412(a) of part B of
title IV of the Act). Since the dollar amount of benefits payable to
any beneficiary is required to be computed at the time of payment such
amounts may be expected to increase from time to time as changes in the
GS-2 grade are enacted into law. The endorsement provisions contained
in paragraph (a) of this section shall be construed to incorporate in
any policy or contract of insurance obtained by an operator to meet the
obligations imposed on such operator by section 423 of the Act, the
requirement that the payment of benefits to eligible beneficiaries
shall be made in such dollar amounts as are prescribed by section
412(a) of the Act computed at the time of payment.
(5) Compromise and waiver of benefits. Section 422(a) of part C of
title IV of the Act by incorporating sections 15(b) and 16 of the
Longshoremen's and Harbor Workers' Compensation Act (33 U.S.C. 915(b)
and 916) prohibits the compromise and/or waiver of claims for benefits
filed or benefits payable under section 415 and part C of title IV of
the Act. The endorsement provisions contained in paragraph (a) of this
section shall be construed to incorporate these prohibitions in any
policy or contract of insurance obtained by an operator to meet the
obligations imposed on such operator by section 423 of the Act.
(6) Additional requirements. In addition to the requirements
described in paragraph (c)(1) through (5) of this section, the
endorsement provisions contained in paragraph (a) of this section
shall, to the fullest extent possible, be construed to bring any policy
or contract of insurance entered into by an operator for the purpose of
insuring such operator's liability under part C of title IV of the Act
into conformity with the legal requirements placed upon such operator
by section 415 and part C of title IV of the Act and parts 720 and 725
of this subchapter.
(d) Nothing in this section shall relieve any operator or carrier
of the duty to comply with any State workmen's compensation law, except
[[Page 55068]]
insofar as such State law is in conflict with the provisions of this
section.
Sec. 726.204 Statutory policy provisions.
Pursuant to section 423(b) of part C of title IV of the Act each
policy or contract of insurance obtained to comply with the
requirements of section 423(a) of the Act must contain or shall be
construed to contain--
(a) A provision to pay benefits required under section 422 of the
Act, notwithstanding the provisions of the State workmen's compensation
law which may provide for lesser payments; and,
(b) A provision that insolvency or bankruptcy of the operator or
discharge therein (or both) shall not relieve the carrier from
liability for such payments.
Sec. 726.205 Other forms of endorsement and policies.
Forms of endorsement or policies other than that described in
Sec. 726.203 may be entered into by operators to insure their liability
under the Act. However, any form of endorsement or policy which
materially alters or attempts to materially alter an operator's
liability for the payment of any benefits under the Act shall be deemed
insufficient to discharge such operator's duties and responsibilities
as prescribed in part C of title IV of the Act. In any event, the
failure of an operator to obtain an adequate policy or contract of
insurance shall not affect such operator's liability for the payment of
any benefits for which he is determined liable.
Sec. 726.206 Terms of policies.
A policy or contract of insurance shall be issued for the term of 1
year from the date that it becomes effective, but if such insurance be
not needed except for a particular contract or operation, the term of
the policy may be limited to the period of such contract or operation.
Sec. 726.207 Discharge by the carrier of obligations and duties of
operator.
Every obligation and duty in respect of payment of benefits, the
providing of medical and other treatment and care, the payment or
furnishing of any other benefit required by the Act and in respect of
the carrying out of the administrative procedure required or imposed by
the Act or the regulations in this part or part 725 of this subchapter
upon an operator shall be discharged and carried out by the carrier as
appropriate. Notice to or knowledge of an operator of the occurrence of
total disability or death due to pneumoconiosis shall be notice to or
knowledge of such carrier. Jurisdiction of the operator by a district
director, administrative law judge, the Office, or appropriate
appellate authority under the Act shall be jurisdiction of such
carrier. Any requirement under any benefits order, finding, or decision
shall be binding upon such carrier in the same manner and to the same
extent as upon the operator.
Reports by Carrier
Sec. 726.208 Report by carrier of issuance of policy or endorsement.
Each carrier shall report to the Office each policy and endorsement
issued, canceled, or renewed by it to an operator. The report shall be
made in such manner and on such form as the Office may require.
Sec. 726.209 Report; by whom sent.
The report of issuance, cancellation, or renewal of a policy and
endorsement provided for in Sec. 726.208 shall be sent by the home
office of the carrier, except that any carrier may authorize its agency
or agencies to make such reports to the Office.
Sec. 726.210 Agreement to be bound by report.
Every carrier seeking to write insurance under the provisions of
the Act shall be deemed to have agreed that the acceptance by the
Office of a report of the issuance or renewal of a policy of insurance,
as provided for by Sec. 726.208 shall bind the carrier to full
liability for the obligations under the Act of the operator named in
said report. It shall be no defense to this agreement that the carrier
failed or delayed to issue, cancel, or renew the policy to the operator
covered by this report.
Sec. 726.211 Name of one employer only shall be given in each report.
A separate report of the issuance or renewal of a policy and
endorsement, provided for by Sec. 726.208, shall be made for each
operator covered by a policy. If a policy is issued or renewed insuring
more than one operator, a separate report for each operator so covered
shall be sent to the Office with the name of only one operator on each
such report.
Sec. 726.212 Notice of cancellation.
Cancellation of a contract or policy of insurance issued under
authority of the Act shall not become effective otherwise than as
provided by 33 U.S.C. 936(b); and notice of a proposed cancellation
shall be given to the Office and to the operator in accordance with the
provisions of 33 U.S.C. 912(c), 30 days before such cancellation is
intended to be effective (see section 422(a) of part C of title IV of
the Act).
Sec. 726.213 Reports by carriers concerning the payment of benefits.
Pursuant to 33 U.S.C. 914(c) as incorporated by section 422(a) of
part C of title IV of the Act and Sec. 726.207 each carrier issuing a
policy or contract of insurance under the Act shall upon making the
first payment of benefits and upon the suspension of any payment in any
case, immediately notify the Office in accordance with a form
prescribed by the Office that payment of benefit has begun or has been
suspended as the case may be. In addition, each such carrier shall at
the request of the Office submit to the Office such additional
information concerning policies or contracts of insurance issued to
guarantee the payment of benefits under the Act and any benefits paid
thereunder, as the Office may from time to time require to carry out
its responsibilities under the Act.
Subpart D--Civil Money Penalties
Sec. 726.300 Purpose and scope.
Any operator which is required to secure the payment of benefits
under section 423 of the Act and Sec. 726.4 and which fails to secure
such benefits shall be subject to a civil penalty of not more than
$1,000 for each day during which such failure occurs. If the operator
is a corporation, the president, secretary, and treasurer of the
operator shall also be severally liable for the penalty based on the
operator's failure to secure the payment of benefits. This subpart
defines those terms necessary for administration of the civil money
penalty provisions, describes the criteria for determining the amount
of penalty to be assessed, and sets forth applicable procedures for the
assessment and contest of penalties.
Sec. 726.301 Definitions.
In addition to the definitions provided in part 725 of this
subchapter and Sec. 726.8, the following definitions apply to this
subpart:
(a) Division Director means the Director, Division of Coal Mine
Workers' Compensation, Office of Workers' Compensation Programs,
Employment Standards Administration, or such other official authorized
by the Division Director to perform any of the functions of the
Division Director under this subpart.
(b) President, secretary, or treasurer means the officers of a
corporation as designated pursuant to the laws and regulations of the
state in which the corporation is incorporated or, if that state does
not require the designation of such officers, to the employees of a
company who are performing the work
[[Page 55069]]
usually performed by such officers in the state in which the
corporation's principal place of business is located.
(c) Principal means any person who has an ownership interest in an
operator that is not a corporation, and shall include, but is not
limited to, partners, sole proprietors, and any other person who
exercises control over the operation of a coal mine.
Sec. 726.302 Determination of penalty.
(a) The following method shall be used for determining the amount
of any penalty assessed under this subpart.
(b) The penalty shall be determined by multiplying the daily base
penalty amount or amounts, determined in accordance with the formula
set forth in this section, by the number of days in the period during
which the operator is subject to the security requirements of section
423 of the Act and Sec. 726.4, and fails to secure its obligations
under the Act. The period during which an operator is subject to
liability for a penalty for failure to secure its obligations shall be
deemed to commence on the first day on which the operator met the
definition of the term ``operator'' as set forth in Sec. 725.101 of
this subchapter. The period shall be deemed to continue even where the
operator has ceased coal mining and any related activity, unless the
operator secured its liability for all previous periods through a
policy or policies of insurance obtained in accordance with subpart C
of this part or has obtained a certification of exemption in accordance
with the provisions of Sec. 726.114.
(c)(1) A daily base penalty amount shall be determined for all
periods up to and including the 10th day after the operator's receipt
of the notification sent by the Director pursuant to Sec. 726.303,
during which the operator failed to secure its obligations under
section 423 of the Act and Sec. 726.4.
(2)(i) The daily base penalty amount shall be determined based on
the number of persons employed in coal mine employment by the operator,
or engaged in coal mine employment on behalf of the operator, on each
day of the period defined by this section, and shall be computed as
follows:
------------------------------------------------------------------------
Penalty
Employees (per day)
------------------------------------------------------------------------
Less than 25................................................ $100
25 to 50.................................................... 200
51 to 100................................................... 300
More than 100............................................... 400
------------------------------------------------------------------------
(ii) For any period after the operator has ceased coal mining and
any related activity, the daily penalty amount shall be computed based
on the largest number of persons employed in coal mine employment by
the operator, or engaged in coal mine employment on behalf of the
operator, on any day while the operator was engaged in coal mining or
any related activity. For purposes of this section, it shall be
presumed, in the absence of evidence to the contrary, that any person
employed by an operator is employed in coal mine employment.
(3) In any case in which the operator had prior notice of the
applicability of the Black Lung Benefits Act to its operations, the
daily base penalty amounts set forth in paragraph (b) of this section
shall be doubled. Prior notice may be inferred where the operator, or
an entity in which the operator or any of its principals had an
ownership interest, or an entity in which the operator's president,
secretary, or treasurer were employed:
(i) Previously complied with section 423 of the Act and Sec. 726.4;
(ii) Was notified of its obligation to comply with section 423 of
the Act and Sec. 726.4; or
(iii) Was notified of its potential liability for a claim filed
under the Black Lung Benefits Act pursuant to Sec. 725.407 of this
subchapter.
(4) Commencing with the 11th day after the operator's receipt of
the notification sent by the Director pursuant to Sec. 726.303, the
daily base penalty amounts set forth in paragraph (b) shall be
increased by $100.
(5) In any case in which the operator, or any of its principals, or
an entity in which the operator's president, secretary, or treasurer
were employed, has been the subject of a previous penalty assessment
under this part, the daily base penalty amounts shall be increased by
$300, up to a maximum daily base penalty amount of $1,000. The maximum
daily base penalty amount applicable to any violation of Sec. 726.4
that takes place after [effective date of the final rule] shall be
$1,100.
(d) The penalty shall be subject to reduction for any period during
which the operator had a reasonable belief that it was not required to
comply with section 423 of the Act and Sec. 726.4 or a reasonable
belief that it had obtained insurance coverage to comply with section
423 of the Act and Sec. 726.4. A notice of contest filed in accordance
with Sec. 726.307 shall not be sufficient to establish a reasonable
belief that the operator was not required to comply with the Act and
regulations.
Sec. 726.303 Notification; investigation.
(a) If the Director determines that an operator has violated the
provisions of section 423 of the Act and Sec. 726.4, he or she shall
notify the operator of its violation and request that the operator
immediately secure the payment of benefits. Such notice shall be sent
by certified mail.
(b) The Director shall also direct the operator to supply
information relevant to the assessment of a penalty. Such information,
which shall be supplied within 30 days of the Director's request, may
include:
(1) The date on which the operator commenced its operation of a
coal mine;
(2) The number of persons employed by the operator since it began
operating a coal mine and the dates of their employment; and
(3) The identity and last known address:
(i) In the case of a corporation, of all persons who served as
president, secretary, and treasurer of the operator since it began
operating a coal mine; or
(ii) In the case of an operator which is not incorporated, of all
persons who were principals of the operator since it began operating a
coal mine;
(c) In conducting any investigation of an operator under this
subpart, the Division Director shall have all of the powers of a
district director, as set forth at Sec. 725.351(a) of this subchapter.
For purposes of Sec. 725.351(c), the Division Director shall be
considered to sit in the District of Columbia.
Sec. 726.304 Notice of initial assessment.
(a) After an operator receives notification under Sec. 726.303 and
fails to secure its obligations for the period defined in
Sec. 726.302(b), and following the completion of any investigation, the
Director may issue a notice of initial penalty assessment in accordance
with the criteria set forth in Sec. 726.302.
(b)(1) A copy of such notice shall be sent by certified mail to the
operator. If the operator is a corporation, a copy shall also be sent
by certified mail to each of the persons who served as president,
secretary, or treasurer of the operator during any period in which the
operator was in violation of section 423 of the Act and Sec. 726.4.
(2) Where service by certified mail is not accepted by any person,
the notice shall be deemed received by that person on the date of
attempted delivery. Where service is not accepted, the Director may
exercise discretion to serve the notice by regular mail.
Sec. 726.305 Contents of notice.
The notice required by Sec. 726.304 shall:
(a) Identify the operator against whom the penalty is assessed as
well as the name of any other person severally liable for such penalty;
[[Page 55070]]
(b) Set forth the determination of the Director as to the amount of
the penalty and the reason or reasons therefor;
(c) Set forth the right of each person identified in paragraph (a)
of this section to contest the notice and request a hearing before the
Office of Administrative Law Judges;
(d) Set forth the method for each person identified in paragraph
(a) to contest the notice and request a hearing before the Office of
Administrative Law Judges; and
(e) Inform any affected person that in the absence of a timely
contest and request for hearing received within 30 days of the date of
receipt of the notice, the Director's assessment will become final and
unappealable as to that person.
Sec. 726.306 Finality of administrative assessment.
Except as provided in Sec. 726.307(c), if any person identified as
potentially liable for the assessment does not, within 30 days after
receipt of notice, contest the assessment, the Director's assessment
shall be deemed final as to that person, and collection and recovery of
the penalty may be instituted pursuant to Sec. 726.320.
Sec. 726.307 Form of notice of contest and request for hearing.
(a) Any person desiring to contest the Director's notice of initial
assessment shall request an administrative hearing pursuant to this
part. The notice of contest shall be made in writing to the Director,
Division of Coal Mine Workers' Compensation, Office of Workers'
Compensation Programs, Employment Standards Administration, United
States Department of Labor. The notice of contest must be received no
later than 30 days after the date of receipt of the notice issued under
Sec. 726.304. No additional time shall be added where service of the
notice is made by mail.
(b) The notice of contest shall:
(1) Be dated;
(2) Be typewritten or legibly written;
(3) State the specific issues to be contested. In particular, the
person must indicate his agreement or disagreement with:
(i) The Director's determination that the person against whom the
penalty is assessed is an operator subject to the requirements of
section 423 of the Act and Sec. 726.4, or is the president, secretary,
or treasurer of an operator, if the operator is a corporation.
(ii) The Director's determination that the operator violated
section 423 of the Act and Sec. 726.4 for the time period in question;
and
(iii) The Director's determination of the amount of penalty owed;
(4) Be signed by the person making the request or an authorized
representative of such person; and
(5) Include the address at which such person or authorized
representative desires to receive further communications relating
thereto.
(c) A notice of contest filed by the operator shall be deemed a
notice of contest on behalf of all other persons to the Director's
determinations that the operator is subject to section 423 of the Act
and Sec. 726.4 and that the operator violated those provisions for the
time period in question, and to the Director's determination of the
amount of penalty owed. An operator may not contest the Director's
determination that a person against whom the penalty is assessed is the
president, secretary, or treasurer of the operator.
(d) Failure to specifically identify an issue as contested pursuant
to paragraph (b)(3) of this section shall be deemed a waiver of the
right to contest that issue.
Sec. 726.308 Service and computation of time.
(a) Service of documents under this part shall be made by delivery
to the person, an officer of a corporation, or attorney of record, or
by mailing the document to the last known address of the person,
officer, or attorney. If service is made by mail, it shall be
considered complete upon mailing. Unless otherwise provided in this
subpart, service need not be made by certified mail. If service is made
by delivery, it shall be considered complete upon actual receipt by the
person, officer, or attorney; upon leaving it at the person's,
officer's or attorney's office with a clerk or person in charge; upon
leaving it at a conspicuous place in the office if no one is in charge;
or by leaving it at the person's or attorney's residence.
(b) If a complaint has been filed pursuant to Sec. 726.309, two
copies of all documents filed in any administrative proceeding under
this subpart shall be served on the attorneys for the Department of
Labor. One copy shall be served on the Associate Solicitor, Black Lung
Benefits Division, Room N-2605, Office of the Solicitor, U.S.
Department of Labor, 200 Constitution Ave., N.W., Washington, DC 20210,
and one copy on the attorney representing the Department in the
proceeding.
(c) The time allowed a party to file any response under this
subpart shall be computed beginning with the day following the action
requiring a response, and shall include the last day of the period,
unless it is a Saturday, Sunday, or federally-observed holiday, in
which case the time period shall include the next business day.
Sec. 726.309 Referral to the Office of Administrative Law Judges.
(a) Upon receipt of a timely notice of contest filed in accordance
with Sec. 726.307, the Director, by the Associate Solicitor for Black
Lung Benefits or the Regional Solicitor for the Region in which the
violation occurred, may file a complaint with the Office of
Administrative Law Judges. The Director may, in the complaint, reduce
the total penalty amount requested. A copy of the notice of initial
assessment issued by the Director and all notices of contest filed in
accordance with Sec. 726.307 shall be attached. A notice of contest
shall be given the effect of an answer to the complaint for purposes of
the administrative proceeding, subject to any amendment that may be
permitted under this subpart and 29 CFR part 18.
(b) A copy of the complaint and attachments thereto shall be served
by counsel for the Director on the person who filed the notice of
contest.
(c) The Director, by counsel, may withdraw a complaint filed under
this section at any time prior to the date upon which the decision of
the Department becomes final by filing a motion with the Office of
Administrative Law Judges or the Secretary, as appropriate. If the
Director makes such a motion prior to the date on which an
administrative law judge renders a decision in accordance Sec. 726.313,
the dismissal shall be without prejudice to further assessment against
the operator for the period in question.
Sec. 726.310 Appointment of Administrative Law Judge and notification
of hearing date.
Upon receipt from the Director of a complaint filed pursuant to
Sec. 726.309, the Chief Administrative Law Judge shall appoint an
Administrative Law Judge to hear the case. The Administrative Law Judge
shall notify all interested parties of the time and place of the
hearing.
Sec. 726.311 Evidence.
(a) Except as specifically provided in this subpart, and to the
extent they do not conflict with the provisions of this subpart, the
Rules of Practice and Procedure for Administrative Hearings Before the
Office of Administrative Law Judges established by the Secretary at 29
CFR part 18 shall apply to administrative proceedings under this
subpart.
(b) Notwithstanding 29 CFR 18.1101(b)(2), subpart B of the Rules of
Practice and Procedure for Administrative Hearings Before the Office of
Administrative Law Judges shall apply to administrative
[[Page 55071]]
proceedings under this part, except that documents contained in
Department of Labor files and offered on behalf of the Director shall
be admissible in proceedings under this subpart without regard to their
compliance with the Rules of Practice and Procedure.
Sec. 726.312 Burdens of proof.
(a) The Director shall bear the burden of proving the existence of
a violation, and the time period for which the violation occurred. To
prove a violation, the Director must establish:
(1) That the person against whom the penalty is assessed is an
operator, or is the president, secretary, or treasurer of an operator,
if such operator is a corporation.
(2) That the operator violated section 423 of the Act and
Sec. 726.4. The filing of a complaint shall be considered prima facie
evidence that the Director has searched the records maintained by OWCP
and has determined that the operator was not authorized to self-insure
its liability under the Act for the time period in question, and that
no insurance carrier reported coverage of the operator for the time
period in question.
(b) The Director need not produce further evidence in support of
his burden of proof with respect to the issues set forth in paragraph
(a) if no party contested them pursuant to Sec. 726.307(b)(3).
(c) The Director shall bear the burden of proving the size of the
operator as required by Sec. 726.302, except that if the Director has
requested the operator to supply information with respect to its size
under Sec. 726.303 and the operator has not fully complied with that
request, it shall be presumed that the operator has more than 100
employees engaged in coal mine employment. The person or persons liable
for the assessment shall thereafter bear the burden of proving the
actual number of employees engaged in coal mine employment.
(d) The Director shall bear the burden of proving the operator's
receipt of the notification required by Sec. 726.303, the operator's
prior notice of the applicability of the Black Lung Benefits Act to its
operations, and the existence of any previous assessment against the
operator, the operator's principals, or the operator's officers.
(e) The person or persons liable for an assessment shall bear the
burden of proving the applicability of the mitigating factors listed in
Sec. 726.302(d).
Sec. 726.313 Decision and order of Administrative Law Judge.
(a) The Administrative Law Judge shall render a decision on the
issues referred by the Director.
(b) The decision of the Administrative Law Judge shall be limited
to determining, where such issues are properly before him or her:
(1) Whether the operator has violated section 423 of the Act and
Sec. 726.4;
(2) Whether other persons identified by the Director as potentially
severally liable for the penalty were the president, treasurer, or
secretary of the corporation during the time period in question; and
(3) The appropriateness of the penalty assessed by the Director in
light of the factors set forth in Sec. 726.302. The Administrative Law
Judge shall not render determinations on the legality of a regulatory
provision or the constitutionality of a statutory provision.
(c) The decision of the Administrative Law Judge shall include a
statement of findings and conclusions, with reasons and bases therefor,
upon each material issue presented on the record. The decision shall
also include an appropriate order which may affirm, reverse, or modify,
in whole or in part, the determination of the Director.
(d) The Administrative Law Judge shall serve copies of the decision
on each of the parties by certified mail.
(e) The decision of the Administrative Law Judge shall be deemed to
have been issued on the date that it is rendered, and shall constitute
the final order of the Secretary unless there is a request for
reconsideration by the Administrative Law Judge pursuant to paragraph
(f) of this section or a petition for review filed pursuant to
Sec. 726.314.
(f) Any party may request that the Administrative Law Judge
reconsider his or her decision by filing a motion within 30 days of the
date upon which the decision of the Administrative Law Judge is issued.
A timely motion for reconsideration will suspend the running of the
time for any party to file a petition for review pursuant to
Sec. 726.314.
(g) Following issuance of the decision and order, the Chief
Administrative Law Judge shall promptly forward the complete hearing
record to the Director.
Sec. 726.314 Review by the Secretary.
(a) The Director or any party aggrieved by a decision of the
Administrative Law Judge may petition the Secretary for review of the
decision by filing a petition within 30 days of the date on which the
decision was issued. Any other party may file a cross-petition for
review within 15 days of its receipt of a petition for review or within
30 days of the date on which the decision was issued, whichever is
later. Copies of any petition or cross-petition shall be served on all
parties and on the Chief Administrative Law Judge.
(b) A petition filed by one party shall not affect the finality of
the decision with respect to other parties.
(c) If any party files a timely motion for reconsideration, any
petition for review, whether filed prior to or subsequent to the filing
of the timely motion for reconsideration, shall be dismissed without
prejudice as premature. The 30-day time limit for filing a petition for
review by any party shall commence upon issuance of a decision on
reconsideration.
Sec. 726.315 Contents.
Any petition or cross-petition for review shall:
(a) Be dated;
(b) Be typewritten or legibly written;
(c) State the specific reason or reasons why the party petitioning
for review believes the Administrative Law Judge's decision is in
error;
(d) Be signed by the party filing the petition or an authorized
representative of such party; and
(e) Attach copies of the Administrative Law Judge's decision and
any other documents admitted into the record by the Administrative Law
Judge which would assist the Secretary in determining whether review is
warranted.
Sec. 726.316 Filing and service.
(a) Filing. All documents submitted to the Secretary shall be filed
with the Secretary of Labor, U.S. Department of Labor, 200 Constitution
Ave., NW, Washington, DC 20210.
(b) Number of copies. An original and four copies of all documents
shall be filed.
(c) Computation of time for delivery by mail. Documents are not
deemed filed with the Secretary until actually received by the
Secretary either on or before the due date. No additional time shall be
added where service of a document requiring action within a prescribed
time was made by mail.
(d) Manner and proof of service. A copy of each document filed with
the Secretary shall be served upon all other parties involved in the
proceeding. Service under this section shall be by personal delivery or
by mail. Service by mail is deemed effected at the time of mailing to
the last known address.
Sec. 726.317 Discretionary review.
(a) Following receipt of a timely petition for review, the
Secretary shall
[[Page 55072]]
determine whether the decision warrants review, and shall send a notice
of such determination to the parties and the Chief Administrative Law
Judge. If the Secretary declines to review the decision, the
Administrative Law Judge's decision shall be considered the final
decision of the agency. The Secretary's determination to review a
decision by an Administrative Law Judge under this subpart is solely
within the discretion of the Secretary.
(b) The Secretary's notice shall specify:
(1) The issue or issues to be reviewed; and
(2) The schedule for submitting arguments, in the form of briefs or
such other pleadings as the Secretary deems appropriate.
(c) Upon receipt of the Secretary's notice, the Director shall
forward the record to the Secretary.
Sec. 726.318 Final decision of the Secretary.
The Secretary's review shall be based upon the hearing record. The
findings of fact in the decision under review shall be conclusive if
supported by substantial evidence in the record as a whole. The
Secretary's review of conclusions of law shall be de novo. Upon review
of the decision, the Secretary may affirm, reverse, modify, or vacate
the decision, and may remand the case to the Office of Administrative
Law Judges for further proceedings. The Secretary's final decision
shall be served upon all parties and the Chief Administrative Law
Judge, in person or by mail to the last known address.
Sec. 726.319 Retention of official record.
The official record of every completed administrative hearing held
pursuant to this part shall be maintained and filed under the custody
and control of the Director.
Sec. 726.320 Collection and recovery of penalty.
(a) When the determination of the amount of any civil money penalty
provided for in this part becomes final, in accordance with the
administrative assessment thereof, or pursuant to the decision and
order of an Administrative Law Judge in an administrative proceeding as
provided in, or following the decision of the Secretary, the amount of
the penalty as thus determined is immediately due and payable to the
U.S. Department of Labor on behalf of the Black Lung Disability Trust
Fund. The person against whom such penalty has been assessed or imposed
shall promptly remit the amount thereof, as finally determined, to the
Secretary by certified check or by money order, made payable to the
order of U.S. Department of Labor, Black Lung Program. Such remittance
shall be delivered or mailed to the Director.
(b) If such remittance is not received within 30 days after it
becomes due and payable, it may be recovered in a civil action brought
by the Secretary in any court of competent jurisdiction, in which
litigation the Secretary shall be represented by the Solicitor of
Labor.
PART 727--[REMOVED]
6. Under the authority of sections 932 and 936 of the Black Lung
Benefits Act, part 727 is proposed to be removed.
[FR Doc. 99-24658 Filed 10-7-99; 8:45 am]
BILLING CODE 4510-27-P
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ESA Proposed Rule