[Federal Register: October 8, 1999 (Volume 64, Number 195)]
[Proposed Rules]
[Page 54965-55014]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08oc99-52]
[[Page 54965]]
_______________________________________________________________________
Part II
Department of Labor
_______________________________________________________________________
Employment Standards Administration
_______________________________________________________________________
20 CFR Part 718 et al.
Regulations Implementing the Federal Coal Mine Health and Safety Act of
1969; Proposed Rule
[[Page 54966]]
DEPARTMENT OF LABOR
Employment Standards Administration
20 CFR Parts 718, 722, 725, 726, and 727
RIN 1215-AA99
Regulations Implementing the Federal Coal Mine Health and Safety
Act of 1969, as Amended
AGENCY: Employment Standards Administration, Labor.
ACTION: Proposed rule.
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SUMMARY: On January 22, 1997, the Department issued a proposed rule to
amend the regulations implementing the Black Lung Benefits Act. The
Department initially allowed interested parties until March 24, 1997 to
file comments, but extended that deadline twice. When the comment
period finally closed on August 21, 1997, the Department had received
almost 200 written submissions from coal miners, coal mine operators,
insurers, physicians, and attorneys. In addition, the Department held
two hearings, one on June 19, 1997 in Charleston, West Virginia, and
another on July 22-23, 1997 in Washington, D.C. Over 50 people
testified at the Department's hearings. In total, the Department heard
from over 100 former coal miners and members of their families, over 50
coal mine operators and insurance companies that provide black lung
benefits insurance, eight physicians, eight attorneys representing both
claimants and coal mine operators, nine legislators at the federal and
state levels, and groups as diverse as the United Mine Workers of
America, the National Black Lung Association, the National Mining
Association, the American Insurance Association, and the American Bar
Association.
The Department has reviewed all of the comments and testimony, and
has decided to issue a second proposal, revising a number of the most
important regulations contained in the earlier proposal. In some cases,
the Department has proposed additional changes to these regulations. In
other cases, the Department has explained its decision not to alter its
proposal based on the comments received to date. Finally, the
Department has prepared an initial regulatory flexibility analysis. The
Department's second proposal is intended to accomplish two purposes.
First, it will provide notice to all interested parties of the proposed
revisions, as well as of the initial regulatory flexibility analysis
set forth in this document. Second, the re-proposal will allow small
entities that may have been unaware of the Department's earlier
proposal to submit comments on the entire proposed rule.
DATES: Comments must be submitted on or before December 7, 1999.
ADDRESSES: All comments concerning these proposed regulations should be
addressed to James L. DeMarce, Director, Division of Coal Mine Workers'
Compensation, Room C-3520, Frances Perkins Building, 200 Constitution
Ave., NW., Washington, DC 20210.
FOR FURTHER INFORMATION CONTACT: James L. DeMarce, (202) 693-0046.
SUPPLEMENTARY INFORMATION:
This notice reprints 20 CFR Parts 718, 722, 725, and 726 in their
entirety for the convenience of interested parties. This notice thus
necessarily includes proposed revisions contained in the Department's
original notice of proposed rulemaking. 62 FR 3338 (Jan. 22, 1997). The
Department intends this notice to supplement the original notice,
however, and not to replace it. To the extent that previously proposed
regulatory changes have not been altered by the revisions contained in
this notice, the explanation of those changes contained in the
Department's initial notice remains valid. Where the Department has
proposed additional changes, those changes are explained below.
Summary of Noteworthy Proposed Regulations
Evidentiary Development
Documentary Medical Evidence
The Department's initial proposal governing evidentiary development
in black lung claims resulted in the greatest volume of public comment,
from coal mine operators, their insurers, claims servicing
organizations and miners. Many commenters were critical of the
Department's proposal that all documentary medical evidence was to be
submitted to the district director in the absence of extraordinary
circumstances. Numerous commenters, expressing widely varying points of
view, also addressed the proposed limitation on the amount of
documentary medical evidence that each side could submit in a given
claim.
After carefully considering the many valid objections to the
required submission of documentary medical evidence to the district
director, the Department now proposes to retain the current process for
submitting documentary medical evidence into the record. Under this
process, parties may submit documentary medical evidence either to the
district director or to an administrative law judge (ALJ) up to 20 days
before an ALJ hearing, or even thereafter, if good cause is shown. This
proposal does retain, however, the Department's original limitation on
the amount of documentary medical evidence which may be submitted in
each claim. To clarify its intent, the Department has defined
differently the applicable evidentiary limitations. These limitations
are now expressed in terms of the types of evidence most commonly used
to establish or refute entitlement to benefits under Secs. 718.202 and
718.204. Thus, rather than describing the evidentiary limitations in
terms of two pulmonary evaluations or consultative reports, the revised
Sec. 725.414 speaks in terms of two chest X-ray interpretations, the
results of two pulmonary function tests, two arterial blood gas
studies, and two medical reports.
The revised Sec. 725.414 also would make explicit the amount of
evidence which each side may submit in rebuttal of its opponent's case.
A party may submit no more than one physician's interpretation of each
chest X-ray, pulmonary function test, or arterial blood gas study
submitted by its opponent. In addition, the Department proposes to
permit a party to rehabilitate evidence that has been the subject of
rebuttal. For example, where a party submits a physician's
interpretation in rebuttal of a chest X-ray interpretation or objective
test, the party that originally submitted the chest X-ray or test into
evidence may introduce a contrary statement from the physician who
originally interpreted it.
This proposal would alter in one significant way the limitations on
the amount of medical evidence admissible in each claim. In order to
allow for a more careful consideration of the unique facts and
circumstances of each case, and to provide an additional procedural
safeguard, this proposal would permit an administrative law judge to
admit medical evidence into the record in excess of the limits outlined
in Sec. 725.414 upon a showing of good cause. The Department's prior
proposal would have permitted the admission of such evidence only if a
moving party could demonstrate extraordinary circumstances.
Complete Pulmonary Evaluation
The Department also proposes a change in the manner in which it
administers the complete pulmonary evaluation required by the Black
Lung Benefits Act. Under the Department's original proposal, a miner
could be examined either by a physician selected
[[Page 54967]]
by the Department or by a physician of his choosing. If the miner
selected the physician, however, the report of that examination would
have counted as one of the two pulmonary evaluations the miner was
entitled to submit into evidence. The Department now proposes to allow
the miner to choose the physician or facility to perform the complete
pulmonary evaluation from a list of providers maintained by the
Department. The authorized list of physicians and facilities in a given
case would include all those in the state of the miner's residence and
contiguous states. If, however, a miner chose a provider more than one
hundred miles from his residence to administer the 413(b) evaluation,
the designated responsible operator could choose to send the miner a
comparable distance for its examination. The 413(b) examination results
would not count against the miner's quota. Sec. 725.406.
The Department believes that this proposal would benefit all
parties to a claim. It would make possible the best quality respiratory
and pulmonary evaluation and would insure each miner a thorough
examination, performed in compliance with the applicable quality
standards. Such a pulmonary evaluation would therefore give the
Department a sound evidentiary basis upon which to make an initial
finding, a finding which both the claimant and the operator may find
credible. The Department intends to develop more rigorous standards for
physicians and facilities that perform pulmonary evaluations and to
reevaluate the fees it pays physicians to perform and explain the
results of these examinations. The Department has discussed in the
preamble to Sec. 725.406 several possible criteria that the Office
might use in selecting appropriate physicians and facilities, and
invites comment on these and other possible criteria.
Developing medical evidence relevant to the claimant's respiratory
and pulmonary condition, including the objective medical testing
required by the Department's quality standards, may involve costs
beyond the reach of some claimants. Thus, this proposal would require a
district director to inform the claimant that he may have the results
of the Department's initial objective testing sent to his treating
physician for use in the preparation of a medical report that complies
with the Department's quality standards. The district director's notice
would also inform the claimant that, if submitted, a report from his
treating physician would count as one of the two reports he is entitled
to submit under Sec. 725.414, and that he may wish to seek advice, from
a lawyer or other qualified representative, before requesting his
treating physician to supply such a report. In this way, the Department
hopes to assist claimants who may not be able to afford the necessary
objective testing.
Documentary Evidence Pertaining to the Liability of a Potentially
Liable Operator or the Responsible Operator
Although the Department now proposes to allow the submission of new
documentary medical evidence while a case is pending before the Office
of Administrative Law Judges, it has not altered the proposal with
respect to the required submission to the district director of all
documentary evidence relevant to potentially liable operators and the
responsible operator. Proposed Secs. 725.408, 725.414 and 725.456 would
continue to require that such evidence be submitted to the district
director and that an administrative law judge may admit additional
evidence on such issues only if the party seeking to submit the
evidence demonstrates extraordinary circumstances justifying its
admission. The Department has revised proposed Sec. 725.408, however,
in response to operators' comments. That section would now allow an
operator, notified of its potential liability under proposed
Sec. 725.407, 90 days, rather than 60, to submit documentary evidence
challenging the district director's determination that it meets the
requirements in Sec. 725.408(a)(2). In addition, the 90 day period
could be extended for good cause pursuant to Sec. 725.423.
Witnesses
This proposal alters the provisions governing witnesses testimony.
Secs. 725.414, 725.456, 725.457. The revisions would allow a physician
to testify, either at a hearing or pursuant to deposition, if he
authored a "medical report" admitted into the record pursuant to
Sec. 725.414. Alternatively, if a party has submitted fewer than the
two medical reports allowed as an affirmative case, a physician who did
not prepare a medical report could testify in lieu of such a report. No
party would be allowed to offer the testimony of more than two
physicians, however, unless the administrative law judge found good
cause to allow evidence in excess of the Sec. 725.414 limitations. The
Department also has proposed altering its original limitation on the
scope of a physician's testimony. If a physician is permitted to
testify, he may testify as to any medical evidence of record, and not
solely with respect to the contents of the report he prepared.
The regulations governing witnesses testimony would continue to
require that the parties notify the district director of any potential
witness whose testimony pertains to the liability of a potentially
liable operator or the responsible operator. Absent such notice, the
testimony of such a witness may not be admitted into a hearing record
absent an administrative law judge's finding of extraordinary
circumstances. Secs. 725.414, 725.457.
Witnesses' Fees
The Department received comments from both miners and coal mine
operators criticizing its initial proposal, which would have assessed
liability for witnesses' fees on the party seeking to cross-examine a
witness if the witness's proponent did not intend to call the witness
to appear at the hearing. In response to these objections, the
Department now proposes to assess the costs of cross-examination of a
witness on the party relying on that witness's affirmative testimony.
This change will make the regulation more consistent with the manner in
which witnesses' fees are paid in general litigation. Under the
proposal, the party whose witness is to be cross-examined may request
the administrative law judge to authorize a less burdensome method of
cross-examination than an actual appearance at a hearing, provided that
the alternative method authorized will produce a full and true
disclosure of the facts.
The only exception to this general rule would be in the case of an
indigent claimant. If a claimant is the proponent of the witness whose
cross-examination is sought, and the claimant demonstrates that he
would be deprived of ordinary and necessary living expenses if required
to pay the witness's fee and mileage necessary to produce the witness
for cross-examination, the administrative law judge may apportion the
costs of the cross-examination between the parties, up to and including
the assessment of the total cost against the party opposing claimant's
entitlement. A claimant shall be considered deprived of funds required
for ordinary and necessary living expenses under the standards set
forth at 20 CFR 404.508. The Black Lung Disability Trust Fund may not
be held liable for such witness's fee in any case in which the district
director has designated a responsible operator, except that the fund
may be assessed the cost associated with the cross-examination of the
physician who performed the miner's complete pulmonary evaluation.
[[Page 54968]]
Subsequent Claims
Subsequent applications for benefits are filed more than one year
after the denial of a previous claim and may be adjudicated only if the
claimant demonstrates that an applicable condition of entitlement has
changed in the interim. In its initial notice of proposed rulemaking,
the Department attempted to clarify the regulation governing subsequent
claims by summarizing and incorporating into the regulation's language
the outcome of considerable appellate litigation. 62 FR 3351-3353 (Jan.
22, 1997). Because the courts of appeals have issued additional
decisions since the Department's initial proposal, the proposal now
merely codifies caselaw that is already applicable to more than 90
percent of the claimants who apply for black lung benefits. The
Department's complete discussion of the numerous comments received in
response to the first notice of proposed rulemaking is found under
Sec. 725.309.
This second proposal contains two changes to Sec. 725.309 as
initially proposed. Both changes affect Sec. 725.309(d)(3). The
Department now proposes elimination of the rebuttable presumption that
the miner's physical condition has changed if the miner proves with new
medical evidence one of the applicable conditions of entitlement.
Commenters responded that the proposal was confusing and would lead to
considerable litigation. The Department agrees that the presumption is
unnecessary and suggests its deletion. Under the new proposal, a
subsequent claim will be denied unless the claimant demonstrates that
one of the applicable conditions of entitlement has changed since the
date upon which the order denying the prior claim became final. Section
725.309(d)(3) of this proposal also clarifies the Department's original
intent with respect to subsequent survivors' claims. In order to avoid
an automatic denial, the applicant in a subsequent survivor's claim
must demonstrate that at least one of the applicable conditions of
entitlement is unrelated to the miner's physical condition at the time
of his death. Thus, if the prior denial was based solely on the
survivor's failure to establish that the miner had pneumoconiosis, that
the miner's pneumoconiosis was caused by coal mine employment, or that
the pneumoconiosis contributed to the miner's death, any subsequent
claim must also be denied, absent waiver by the liable party.
By allowing the filing of a subsequent claim for benefits which
alleges a worsening of the miner's condition, the Department merely
recognizes the progressive nature of pneumoconiosis. The proposed
regulation does not allow the reopening of any prior claim which was
denied more than one year before the filing of the subsequent claim. It
also prohibits any award of benefits for a period of time covered by
that prior denial. Responsible operators have argued to the circuit
courts of appeals that the Department's regulatory scheme allows the
"recycling" of an old claim in violation of the Supreme Court's
holding that a black lung claimant may not ``seek[] to avoid the bar of
res judicata [finality] on the ground that the decision was wrong.''
Pittston Coal Group v. Sebben, 488 U.S. 105, 123 (1988). The courts
have uniformly rejected this argument, see Lovilia Coal Co. v. Harvey,
109 F.3d 445, 449-450 (8th Cir. 1997), cert. denied, 118 S. Ct. 1385
(1998). Thus, the Department's proposal is fully consistent with the
Supreme Court's holding in Sebben, and gives appropriate finality to
prior denials.
The Department's experience with subsequent claims also
demonstrates the need for such filings. During the period between
January 1, 1982, when the Black Lung Benefits Amendments of 1981 took
effect, and July 16, 1998, 10.56 percent of the subsequent claims filed
by living miners were ultimately awarded as opposed to only 7.47
percent of first-time claims. To prevent a miner who has previously
been denied benefits from filing a subsequent claim would force each
miner to "guess" correctly when he has become totally disabled due to
pneumoconiosis arising out of coal mine employment because a premature
and unsuccessful filing would forever bar an award. In addition, the
total number of subsequent claims filed by miners during that same time
period, 30,964, as compared to the total number of claims filed,
approximately 107,000, indicates that the provision is not abused. Of
the total number of claims filed, only approximately 1,400, or 1.3
percent, were from individuals who had been denied benefits three or
more times. Thus, in general, only an individual who believes his
condition has truly worsened files a subsequent claim.
Although the Department's proposal would allow the filing of
subsequent claims, the Department also intends to take steps to better
educate claimants with respect to the requirements for entitlement. The
Department intends to provide better initial pulmonary evaluations and
better reasoned, more detailed explanations of denials of claims. By
providing claimants with a more realistic view of their possible
entitlement, the Department expects that the number of nonmeritorious
applications will be reduced.
Attorneys' Fees
In its first notice of proposed rulemaking, the Department
attempted to clarify an operator's liability for a claimant's
attorney's fees and the dates on which the operator's liability
commenced. The Department also recognized the Trust Fund's liability
for attorneys' fees and made it coextensive with a liable operator's.
In general, the Department used the date of the event which created an
adversarial relationship between the claimant and either the operator
or the fund as the date on which liability for a claimant's attorney's
fees commenced. The Department used this date based on the theory that
it was the creation of an adversarial relationship which required
employment of an attorney. Thus, for example, a successful claimant's
attorney could only collect a fee from an operator or the fund for
necessary work performed after the liable operator first contested the
claimant's eligibility or the fund first denied the claim. See 62 FR
3354, 3399 (Jan. 22, 1997).
Upon further reflection and consideration of the comments received,
however, the Department now proposes to allow successful claimants'
attorneys to collect fees from an operator or the fund for all
necessary work they perform in a case rather than only the work
performed after creation of an adversarial relationship. Although the
creation of an adversarial relationship and the ultimately successful
prosecution of a claim are still necessary to trigger employer or fund
liability for attorneys' fees, the date on which the adversarial
relationship commenced will no longer serve as the starting point of
liability. The Department believes this change may be appropriate in
light of the evidentiary limitations present in the proposal. These
limitations significantly alter the consequences of an early submission
of evidence and make the quality of each piece of evidence submitted
significantly more important. Thus, in an attempt to avoid setting a
trap for the unwary claimant and to encourage early attorney
involvement in these claims, the Department proposes allowing
successful attorneys to collect fees for all of the necessary work they
perform.
Treating Physicians' Opinions
In the preamble accompanying its initial proposal, the Department
noted that its proposal to allow a fact-finder to give controlling
weight to the opinion of
[[Page 54969]]
a treating physician attempted to codify principles embodied in case
law and also drew on a similar regulation adopted by the Social
Security Administration, 20 CFR 404.1527(d)(2). See 62 Fed. Reg. 3338,
3342 (Jan. 22, 1997). The Department's proposal elicited widely
divergent comment from numerous sources. The Department now invites
comment on alternative ways to determine when a treating physician's
opinion may be entitled to controlling weight.
The purpose of this proposal is not to limit a factfinder's
consideration of any properly admitted medical or other relevant
evidence. Rather, this regulation would mandate only that the
factfinder recognize that a treating physician may possess additional
insight into the miner's respiratory or pulmonary condition by virtue
of his extended treatment. The Department has proposed two changes to
Sec. 718.104(d). In the absence of contrary probative evidence, the
adjudication officer would be required to accept the physician's
statement with regard to the nature and duration of the doctor's
treatment relationship with the miner, and the frequency and extent of
that treatment. Sec. 718.104(d)(5). The Department has also added
language to Sec. 718.104(d) to make explicit its intent that a treating
physician's opinion may establish all of the medical elements of
entitlement. Finally, the Department has retained the language in the
original proposal that whether controlling weight is given to the
opinion of a treating physician shall also be based on the credibility
of that opinion in light of its reasoning and documentation, other
relevant evidence and the record as a whole.
Waiver of Overpayments
In its previous notice of proposed rulemaking, the Department
extended the right to seek waiver of recovery of an overpayment to all
claimants, without regard to whether recovery was sought by a
responsible operator or the Black Lung Disability Trust Fund. 62 FR
3366-3367 (Jan. 22, 1997). The Department received numerous comments in
response, many urging adoption of a more generous waiver provision
fashioned after the Longshore and Harbor Workers' Compensation Act.
any other comments opposed the extension of waiver rights to all
claimants as an unconstitutional deprivation of responsible operators'
property rights and right to appeal. Thus far, these comments have not
provided the Department with a sufficient basis for altering its
original proposal. See the discussion under Sec. 725.547.
The Department also heard testimony from a number of witnesses
generally critical of the application of the criteria used to determine
whether recoupment of an overpayment would defeat the purposes of title
IV of the Federal Coal Mine Health and Safety Act or would be against
equity and good conscience. These waiver criteria are incorporated into
the Black Lung Benefits Act from the Social Security Act, 30 U.S.C.
923(b), 940, incorporating 42 U.S.C. 404(b), and the Social Security
Administration uses them in its adjudication of overpayments arising
under title II of the Social Security Act. Thus, Social Security's
current interpretation of these criteria is found in Social Security
regulations governing title II claims, 20 CFR 404.506 through 404.512,
not in their regulations governing Part B claims filed under the Black
Lung Benefits Act, 20 CFR 410.561 through 410.561h. In order to make
the standards for waiver of recovery of a black lung overpayment more
current, the Department proposes to amend section 725.543 to
incorporate Social Security's title II standards, rather than its Part
B regulations.
Definition of Pneumoconiosis and Establishing Total Disability Due to
Pneumoconiosis
The Department has suggested no further change to its initial
proposal defining pneumoconiosis, Sec. 718.201, and no significant
change to its regulation defining total disability and disability
causation, Sec. 718.204. The miner retains the burden of proving each
of these required elements of entitlement.
The Department received widely divergent comments from medical
professionals on its proposed definition of pneumoconiosis. Some
commenters argued that the proposal lacked a sound medical basis and
would therefore unjustifiably increase the number of claims approved.
Other physicians, also with expertise in pulmonary medicine, supported
the proposal. As a result, the Department sought additional guidance on
this issue from the National Institute for Occupational Safety and
Health (NIOSH). The Department forwarded to NIOSH all of the comments
and testimony it had received relevant to Sec. 718.201 and requested
that NIOSH advise the Department whether any of the material altered
that agency's original opinion, submitted during the comment period,
which supported the Department's proposal. NIOSH concluded that the
unfavorable comments and testimony did not alter its previous position:
NIOSH scientific analysis supports the proposed definitional changes.
The Department also received numerous comments on its proposed
regulation defining total disability and disability causation, and
setting out the criteria for establishing total disability. The
Department has proposed no significant change to Sec. 718.204. It has
proposed, however, a change in the methodology by which pulmonary
function tests are administered. Sec. 718.103(a) and Appendix B to Part
718. This proposal would require that pulmonary function testing be
administered by means of a flow-volume loop, a more reliable method of
ensuring valid, verifiable results in pulmonary function testing. The
Department invites comment on these proposed changes.
True Doubt
The "true doubt" rule was an evidentiary weighing principle under
which an issue was resolved in favor of the claimant if the probative
evidence for and against the claimant was in equipoise. In its first
notice of proposed rulemaking, the Department proposed deleting
subsection (c) of the current regulation at Sec. 718.3, because the
Supreme Court held that this language failed to define the ``true
doubt'' rule effectively. 62 FR 3341 (Jan. 22, 1997). Although the
Department received a number of comments urging the proposal of a
"true doubt" rule, the Department has not done so in this second
notice of proposed rulemaking.
The Department believes that evaluation of conflicting medical
evidence requires careful consideration of a wide variety of disparate
factors, making the applicability of any true doubt rule extremely
limited. The availability of these factors makes it unlikely that a
factfinder will be able to conclude that the evidence, although in
conflict, is equally probative. Thus, the Department does not believe
that promulgation of a true doubt rule will enhance decision-making
under the Act.
Federal Coal Mine Health and Safety Act Endorsement
Section 726.203 was not among the regulations the Department opened
for comment in its previous notice of proposed rulemaking.
Representatives of the insurance industry commented, however, that a
different version of the endorsement contained in Sec. 726.203(a) has
been in use since 1984, with the Department's knowledge and consent.
The Department is now opening Sec. 726.203 for comment. Although this
proposal does not suggest alternative language for the endorsement, the
[[Page 54970]]
preamble does contain the version of the endorsement which the industry
provided. The Department invites comment on its possible use, but urges
commenters to bear in mind the requirement in Sec. 726.205 that
endorsements other than those provided by Sec. 726.203 may be used only
if they do not ``materially alter or attempt [] to alter an operator's
liability for the payment of any benefits under the Act.* * *'' The
Department also requests that the insurance industry submit for the
record any document it might possess from the Department authorizing
use of the different endorsement.
edical Benefits
Since the Department's initial proposal, the U.S. Court of Appeals
for the Sixth Circuit has issued a decision addressing the
compensability of medical expenses incurred as a result of treatment
for totally disabling pneumoconiosis. Glen Coal Co. v. Seals, 147 F.3d
502 (6th Cir. 1998). A majority of that panel held that the Benefits
Review Board had erred by applying the Fourth Circuit's presumption to
a miner whose coal mine employment took place within the jurisdiction
of the Sixth Circuit. In the Fourth Circuit, if a miner entitled to
monthly black lung benefits receives treatment for a pulmonary
disorder, it is presumed that that disorder is caused or aggravated by
the miner's pneumoconiosis. Doris Coal Co. v. Director, OWCP, 938 F.2d
492 (4th Cir. 1991); Gulf & Western Indus. v. Ling, __ F.3d __, 1999 WL
148851 (4th Cir. Mar. 19, 1999).
The Department believes that black lung benefit claims adjudication
should vary as little as possible from circuit to circuit, and
consequently continues to propose a regulatory presumption, based on
the Fourth Circuit's approach, that would apply nationwide. The Sixth
Circuit's opinion would allow such a result, given the separate views
expressed by each of the three judges sitting on that panel. The
Department also believes that a regulatory presumption governing the
compensability of medical expenses for the treatment of totally
disabling pneumoconiosis is appropriate given the rational connection
between the facts proven and the facts presumed.
Explanation of Proposed Changes
Open Regulations
The Department invites comments from interested parties on the
following regulations: Sec. 718.3, Sec. 718.101, Sec. 718.102,
Sec. 718.103, Sec. 718.104, Sec. 718.105, Sec. 718.106, Sec. 718.107,
Sec. 718.201, Sec. 718.202, Sec. 718.204, Sec. 718.205, Sec. 718.301,
Sec. 718.307, Sec. 718.401, Sec. 718.402, Sec. 718.403, Sec. 718.404,
Appendix B to part 718, Appendix C to Part 718, part 722 (entire),
Sec. 725.1, Sec. 725.2, Sec. 725.4, Sec. 725.101, Sec. 725.103,
Sec. 725.202, Sec. 725.203, Sec. 725.204, Sec. 725.209, Sec. 725.212,
Sec. 725.213, Sec. 725.214, Sec. 725.215, Sec. 725.219, Sec. 725.221,
Sec. 725.222, Sec. 725.223, Sec. 725.306, Sec. 725.309, Sec. 725.310,
Sec. 725.311, Sec. 725.351, Sec. 725.362, Sec. 725.367, Sec. 725.403,
Sec. 725.405, Sec. 725.406, Sec. 725.407, Sec. 725.408, Sec. 725.409,
Sec. 725.410, Sec. 725.411, Sec. 725.412, Sec. 725.413, Sec. 725.414,
Sec. 725.415, Sec. 725.416, Sec. 725.417, Sec. 725.418, Sec. 725.421,
Sec. 725.423, Sec. 725.452, Sec. 725.454, Sec. 725.456, Sec. 725.457,
Sec. 725.458, Sec. 725.459, Sec. 725.465, Sec. 725.478, Sec. 725.479,
Sec. 725.490, Sec. 725.491, Sec. 725.492, Sec. 725.493, Sec. 725.494,
Sec. 725.495, Sec. 725.502, Sec. 725.503, Sec. 725.515, Sec. 725.522,
Sec. 725.530, Sec. 725.533, Sec. 725.537, Sec. 725.543, Sec. 725.544,
Sec. 725.547, Sec. 725.548, Sec. 725.606, Sec. 725.608, Sec. 725.609,
Sec. 725.620, Sec. 725.621, Sec. 725.701, Sec. 725.706, Sec. 726.2,
Sec. 726.8, Sec. 726.101, Sec. 726.104, Sec. 726.105, Sec. 726.106,
Sec. 726.109, Sec. 726.110, Sec. 726.111, Sec. 726.114, Sec. 726.203,
Sec. 726.300, Sec. 726.301, Sec. 726.302, Sec. 726.303, Sec. 726.304,
Sec. 726.305, Sec. 726.306, Sec. 726.307, Sec. 726.308, Sec. 726.309,
Sec. 726.310, Sec. 726.311, Sec. 726.312, Sec. 726.313, Sec. 726.314,
Sec. 726.315, Sec. 726.316, Sec. 726.317, Sec. 726.318, Sec. 726.319,
Sec. 726.320, and part 727 (entire).
New Regulations Open for Comment
The Department's initial notice of proposed rulemaking contained a
list of regulations, entitled "Substantive Revisions," that the
Department proposed to revise. 62 FR at 3340 (Jan. 22, 1997). That list
of regulations is reproduced above with six additions. The Department
is now proposing changes to ten regulations that were not open for
comment previously: Sec. 725.351, Sec. 725.403, Sec. 725.465,
Sec. 725.515, Sec. 725.533, Sec. 725.543, Sec. 725.544, Sec. 725.548,
Sec. 726.3, and Sec. 726.203. Although the Department has not proposed
any specific changes to section 726.203, the Department seeks comment
from interested parties on the changes to that regulation suggested by
the insurance industry. Accordingly, the Department now invites comment
from all interested parties on the regulations listed above as Open
Regulations.
Additional Technical changes
The Department's first proposal identified a number of regulations
to which the Department was proposing to make technical revisions. See
62 FR 3340-41 (Jan. 22, 1997). The Department is now proposing
additional technical revisions. Among other things, these proposed
changes delete references to the control numbers used by the Office of
anagement and Budget to approve revisions to the regulations in 1984
because the inclusion of these numbers is neither necessary nor helpful
to understanding the Department's regulations. See, e.g., 20 CFR
718.102 (1999). In addition, at the request of the Office of the
Federal Register, the Department is proposing to change references to
various components of title 20 of the Code of Federal Regulations and
to various statutory provisions and to add a colon to Sec. 726.1. The
following regulations should be added to the list of regulations to
which the Department is making only technical revisions: Appendix A to
Part 718, Sec. 725.201, Sec. 725.218, Sec. 725.220, Sec. 725.531,
Sec. 725.536, Sec. 726.1, Sec. 726.103, Sec. 726.207, Sec. 726.208,
Sec. 726.209, Sec. 726.210, Sec. 726.211, Sec. 726.212, and
Sec. 726.213.
Complete List of Technical Revisions
The complete list of regulations to which the Department is making
technical changes is as follows: Sec. 718.1, Sec. 718.2, Sec. 718.4,
Sec. 718.303, Appendix A to Part 718, Sec. 725.102, Sec. 725.201,
Sec. 725.216, Sec. 725.217, Sec. 725.218, Sec. 725.220, Sec. 725.301,
Sec. 725.302, Sec. 725.350, Sec. 725.360, Sec. 725.366, Sec. 725.401,
Sec. 725.402, Sec. 725.404, Sec. 725.419, Sec. 725.420, Sec. 725.450,
Sec. 725.451, Sec. 725.453A, Sec. 725.455, Sec. 725.459A, Sec. 725.462,
Sec. 725.463, Sec. 725.466, Sec. 725.480, Sec. 725.496, Sec. 725.501,
Sec. 725.503A, Sec. 725.504, Sec. 725.505, Sec. 725.506, Sec. 725.507,
Sec. 725.510, Sec. 725.513, Sec. 725.514, Sec. 725.521, Sec. 725.531,
Sec. 725.532, Sec. 725.536, Sec. 725.603, Sec. 725.604, Sec. 725.605,
Sec. 725.607, Sec. 725.701A, Sec. 725.702, Sec. 725.703, Sec. 725.704,
Sec. 725.705, Sec. 725.707, Sec. 725.708, Sec. 725.711, Sec. 726.1,
Sec. 726.4, Sec. 726.103, Sec. 726.207, Sec. 726.208, Sec. 726.209,
Sec. 726.210, Sec. 726.211, Sec. 726.212, and Sec. 726.213. Pursuant to
the authority set forth in 5 U.S.C. 552(b)(3)(A), which allows federal
agencies to alter ``rules of agency organization, procedure, or
practice'' without notice and comment, the Department is not accepting
comments on any of these regulations.
Unchanged Regulations
Certain regulations are merely being re-promulgated without
alteration and are also not open for public comment. To the extent
appropriate, the Department's previous explanations of
[[Page 54971]]
these regulations, set forth in the Federal Register, see 43 FR 36772-
36831, Aug. 18, 1978; 48 FR 24272-24294, May 31, 1983, remain
applicable. The same is true of those regulations to which the
Department is making only technical changes. The following regulations
are being re-promulgated for the convenience and readers: Sec. 718.203,
Sec. 718.206, Sec. 718.302, Sec. 718.304, Sec. 718.305, Sec. 718.306,
Sec. 725.3, Sec. 725.205, Sec. 725.206, Sec. 725.207, Sec. 725.208,
Sec. 725.210, Sec. 725.211, Sec. 725.224, Sec. 725.225, Sec. 725.226,
Sec. 725.227, Sec. 725.228, Sec. 725.229, Sec. 725.230, Sec. 725.231,
Sec. 725.232, Sec. 725.233, Sec. 725.303, Sec. 725.304, Sec. 725.305,
Sec. 725.307, Sec. 725.308, Sec. 725.352, Sec. 725.361, Sec. 725.363,
Sec. 725.364, Sec. 725.365, Sec. 725.422, Sec. 725.453, Sec. 725.460,
Sec. 725.461, Sec. 725.464, Sec. 725.475, Sec. 725.476, Sec. 725.477,
Sec. 725.481, Sec. 725.482, Sec. 725.483, Sec. 725.497, Sec. 725.511,
Sec. 725.512, Sec. 725.520, Sec. 725.534, Sec. 725.535, Sec. 725.538,
Sec. 725.539, Sec. 725.540, Sec. 725.541, Sec. 725.542, Sec. 725.545,
Sec. 725.546, Sec. 725.601, Sec. 725.602, Sec. 725.710, Sec. 726.5,
Sec. 726.6, Sec. 726.7, Sec. 726.102, Sec. 726.107, Sec. 726.108,
Sec. 726.112, Sec. 726.113, Sec. 726.115, Sec. 726.201, Sec. 726.202,
Sec. 726.204, Sec. 726.205, and Sec. 726.206.
Changes in the Department's Second Proposal
The Department's second proposal contains substantive changes,
either in the regulation or the preamble language, or both, to the
following regulations: Sec. 718.3, Sec. 718.101, Sec. 718.103,
Sec. 718.104, Sec. 718.105, Sec. 718.106, Sec. 718.107, Sec. 718.201,
Sec. 718.204, Sec. 718.205, Part 718, Appendix B, Sec. 725.2,
Sec. 725.101, Sec. 725.209, Sec. 725.223, Sec. 725.309, Sec. 725.310,
Sec. 725.351, Sec. 725.367, Sec. 725.403, Sec. 725.406, Sec. 725.407,
Sec. 725.408, Sec. 725.409, Sec. 725.411, Sec. 725.414, Sec. 725.416,
Sec. 725.456, Sec. 725.457, Sec. 725.459, Sec. 725.465, Sec. 725.491,
Sec. 725.492, Sec. 725.493, Sec. 725.494, Sec. 725.495, Sec. 725.502,
Sec. 725.503, Sec. 725.515, Sec. 725.533, Sec. 725.543, Sec. 725.544,
Sec. 725.547, Sec. 725.548, Sec. 725.606, Sec. 725.701, Sec. 726.3,
Sec. 726.8 and Sec. 726.203. The Department has carefully considered
all of the comments that it has received to date with regard to the
regulations. The preamble contains an explanation of the Department's
proposed changes as well as its reason for rejecting other suggestions.
In particular, the Department invites comment from small businesses
that may not have been aware of the potential impact of the
Department's proposed rule. In order to ensure that small businesses
have adequate information, the Department intends to mail a copy of
this proposal to each coal mine operator who is identified in current
records maintained by the Mine Safety and Health Administration.
Several commenters suggest that the Department lacks the authority
to revise the regulations governing claims filed under the Black Lung
Benefits Act. Although some of these objections are limited to
individual regulations, such as the definition of "pneumoconiosis,"
and will be addressed in the discussion of those regulations, two of
the objections apply to a substantial number of the revisions made by
the Department. They are: first, that the Department lacks the
authority to promulgate regulations covering matters that were the
subject of an unsuccessful attempt to amend the Act in 1994; and,
second, that the Supreme Court's decision in Director, OWCP v.
Greenwich Collieries, 512 U.S. 267 (1994), prohibits the Department
from adopting any regulation that requires coal mine operators to bear
a burden of proof.
Regulatory Authority
In 1994, the 104th Congress considered legislation that would have
amended the Black Lung Benefits Act by, among other things, limiting
the amount of evidence parties may submit, providing claimants with
overpayment relief, and allowing previously denied applicants to seek
de novo review of their claims. The House passed a version of this
legislation, H.R. 2108, on May 19, 1994, but the Senate adjourned in
September, 1994 without acting on several similar bills. Numerous
commenters have argued that in "rejecting" H.R. 2108, the Congress
has already disapproved certain of the revisions now proposed by the
Department. This argument fails on two grounds. First, Congress'
failure to act does not deprive the Department of the authority to
promulgate regulations otherwise conferred by the Black Lung Benefits
Act. Second, Congress did not reject the legislation. Instead, the
Senate adjourned without considering its version of the bill passed by
the House.
The starting point for determining the validity of any regulation
is the legislation authorizing the agency to issue binding rules. As a
general matter, ``[t]he power of an administrative agency to administer
a congressionally created * * * program necessarily requires the
formulation of policy and the making of rules to fill any gap left,
implicitly or explicitly, by Congress.'' Morton v. Ruiz, 415 U.S. 199,
231 (1974). ``If Congress has explicitly left a gap for the agency to
fill, there is an express delegation of authority to the agency to
elucidate a specific provision of the statute by regulation. Such
legislative regulations are given controlling weight unless they are
arbitrary, capricious, or manifestly contrary to the statute.'' Chevron
v. Natural Resources Defense Council, 467 U.S. 837, 843-44 (1984).
In Pauley v. Bethenergy Mines, Inc., 501 U.S. 680 (1991), the
Supreme Court recognized the applicability of the Chevron analysis to
regulations implementing the Black Lung Benefits Act:
It is precisely this recognition that informs our determination
that deference to the Secretary is appropriate here. The Black Lung
Benefits Act has produced a complex and highly technical regulatory
program. The identification and classification of medical
eligibility criteria necessarily require significant expertise, and
entail the exercise of judgment grounded in policy concerns. In
those circumstances, courts appropriately defer to the agency
entrusted by Congress to make such policy determinations.
Id. at 696. In addition to providing this general authority, the Black
Lung Benefits Act contains several explicit provisions authorizing
rule-making by the Department of Labor. Section 422(a) of the Act
provides that ``[i]n administering this part [Part C of the Act], the
Secretary is authorized to prescribe in the Federal Register such
additional provisions * * * as [s]he deems necessary to provide for the
payment of benefits by such operator to persons entitled thereto as
provided in this part and thereafter those provisions shall be
applicable to such operator.'' 30 U.S.C. 932(a). Section 426(a) of the
Act similarly authorizes the Secretary to ``issue such regulations as
[she] deems appropriate to carry out the provisions of this title.'' 30
U.S.C. 936(a). As the Fourth Circuit has pointed out, these two
provisions represent a "broad grant of rulemaking authority." Harman
ining Co. v. Director, OWCP, 826 F.2d 1388, 1390 (4th Cir. 1987).
Finally, the Act contains several other provisions authorizing the
Secretary to promulgate regulations on specific subjects. See, e.g., 30
U.S.C. 902(f)(1)(D) (criteria for medical tests which accurately
reflect total disability), 932(h) (standards for assigning liability to
operators), and 933(b)(3) (required insurance contract provisions).
The Secretary's rulemaking authority is not unlimited. For example,
section 422(a) prohibits the Department from promulgating regulations
that are inconsistent with Congress's decision to exclude certain
provisions of the Longshore and Harbor Workers' Compensation Act from
those
[[Page 54972]]
incorporated into the Black Lung Benefits Act. Moreover, under Chevron,
the Department clearly has no authority to issue regulations on a
subject which Congress has addressed unambiguously. Pittston Coal Group
v. Sebben, 488 U.S. 105 (1988). For example, in 1981, Congress amended
the Act to limit the eligibility of surviving spouses of deceased coal
miners who filed claims on or after January 1, 1982. Congress provided
that such a spouse would be entitled to survivors' benefits only if
[s]he could establish that the miner had died due to pneumoconiosis.
Pub. L. 97-119, 95 Stat. 1635, Sec. 203(a)(2), (3). The bill passed by
the House in 1994 would have reinstated so-called unrelated death
benefits so as to allow a surviving spouse to collect benefits, no
matter the miner's cause of death, so long as the miner was totally
disabled due to pneumoconiosis at the time of death. Because that bill
did not become law, however, the 1981 requirement remains in effect,
and quite obviously limits the Department's ability to regulate in this
area.
The mere fact that Congress considered legislation affecting some
of the same subjects addressed by the Department's regulatory proposal,
however, cannot be construed as a similar limitation. ``Ordinarily, and
quite appropriately, courts are slow to attribute significance to the
failure of Congress to act on particular legislation.'' Bob Jones
University v. United States, 461 U.S. 574, 600 (1983). In particular,
the Department is not aware of any case holding that the failure of a
previous Congress to enact legislation prevents an administrative
agency from promulgating regulations on similar topics.
Moreover, the regulations proposed by the Department are, for the
most part, quite different in content from the provisions of either the
bill that was passed by the House or the bills that were under
consideration by the Senate when it adjourned. The Department's
proposed revision of the definition of "pneumoconiosis" is similar in
one respect to a provision in H.R. 2108 (recognizing that both
obstructive and restrictive lung disease may be caused by exposure to
coal mine dust). Other provisions, however, are significantly
different. For example, H.R. 2108 would have completely relieved
claimants of the obligation to repay overpaid amounts. In contrast, the
Department's proposal would ensure only that the rules governing waiver
of overpayments are applied without regard to whether the overpayment
was made by the Black Lung Disability Trust Fund or a responsible
operator. In fact, the Department has specifically rejected comments
urging it to use certain provisions incorporated from the Longshore and
Harbor Workers' Compensation Act that would bar the recoupment of
overpayments by employers, an approach similar to that considered by
the 104th Congress. Although the Department is not proposing the
widespread overpayment relief that was contained in H.R. 2108 and was
sought by these commenters, the Department also does not believe that
Congress intended that claimants who receive payment from the Trust
Fund be treated differently than claimants who receive payments from
liable coal mine operators. The Department's proposal would simply
guarantee the equitable treatment of both claimant groups.
The Department's proposed evidentiary limitation is also
significantly different from the limitation set forth in H.R. 2108.
Under the bill passed by the House, claimants would have been allowed
to submit three medical opinions, and responsible operators or the
Trust Fund would have been allowed only one. The Department agrees that
evidentiary limitations are needed to level the playing field between
operators and claimants, but does not believe that the playing field
should be tilted in favor of one party. Rather, the Department's
proposal treats all parties equally and encourages them to rely on the
quality of their medical evidence rather than its quantity. Hopefully,
the proposal's evidentiary limitations will improve the decisionmaking
process in black lung benefit claims.
Finally, the Department's treatment of denied claims also differs
significantly from that proposed in the legislation. H.R. 2108 would
have allowed any claimant denied benefits based on a claim filed on or
after January 1, 1982 to seek readjudication of that claim without
regard to the previous denial. The Department's proposed revision of
Sec. 725.309, on the other hand, specifically forbids the parties from
seeking readjudication of the earlier denial of benefits.
Sec. 725.309(d). Instead, the Department has proposed the codification
of a solution that has already been accepted by five courts of appeals
with jurisdiction over more than 90 percent of black lung claims filed.
That solution requires a claimant to establish, with new evidence, at
least one of the elements previously resolved against him before a new
claim may even be considered on the merits. Even if a claimant
establishes his entitlement to benefits based on a subsequent claim,
benefits will be paid based only on that application and not for time
periods covered by the earlier, final denial.
The Department therefore cannot accept the argument that Congress'
failure to enact legislation in 1994 prevents the Department from
revising regulations that have not been amended since 1983. In many
cases, the Department is simply proposing to codify the decisions of a
majority of the appellate courts. In other cases, the Department's
proposed revisions represent reasonable methods of dealing with
problems that have arisen since the black lung benefits regulations
were first promulgated in 1978. The Department's ability to address
those problems in regulations is independent of any Congressional
effort to reform the Black Lung Benefits Act, and should be judged
according to the standards set forth in Chevron. For the reasons set
forth in its initial notice of proposed rulemaking, 62 FR 3337 (Jan.
22, 1997) and in this notice, the Department believes that its proposed
revisions meet those standards.
Administrative Procedure Act
A number of commenters also suggest that the Department's ability
to create regulatory presumptions is constrained by the Administrative
Procedure Act and the Supreme Court's decision in Greenwich Collieries.
In Greenwich Collieries, the Supreme Court invalidated the use of the
"true doubt" rule, an evidentiary principle that effectively shifted
the risk of non-persuasion from black lung applicants to coal mine
operators. Under the "true doubt" rule, fact-finders were required to
resolve any issue in favor of the claimant if the evidence for and
against entitlement was equally probative. In contrast, section 7(c) of
the Administrative Procedure Act (APA), 5 U.S.C. 556(d), states that
``[e]xcept as otherwise provided by statute, the proponent of a rule or
order has the burden of proof.'' The Court held that, even assuming
that the Department could displace the APA through regulation, the
Department's existing regulation, 20 CFR 718.403, was insufficient to
do so. Finally, the Court determined that the party assigned the
"burden of proof" by the APA bore the risk of non-persuasion. As a
result, the court held the APA required that the Department resolve
cases of equally probative evidence against the claimant, the party
seeking an order compelling the payment of benefits.
The commenters argue that the Court's decision effectively
prohibits the Department from imposing any burden of proof on an
operator under the Black Lung Benefits Act. The Department does
[[Page 54973]]
not believe that Greenwich Collieries requires such a result. At the
outset, it should be clear that the Court's decision did not address
the relationship between the Department's rulemaking authority and the
APA. Section 956 of the Federal Mine Safety and Health Act (FMSHA)
provides as follows:
Except as otherwise provided in this chapter, the provisions of
sections 551 to 559 and sections 701 to 706 of Title 5 shall not
apply to the making of any order, notice, or decision made pursuant
to this chapter, or to any proceeding for the review thereof.
30 U.S.C. 956. "This chapter" is a reference to chapter 22 of Title
30, United States Code, which codifies the FMSHA. Because the Black
Lung Benefits Act is subchapter IV of the FMSHA, section 956 generally
exempts the Act from the requirements of the section 7(c) of the APA.
Similarly, although section 19 of the Longshore and Harbor Workers'
Compensation Act, 33 U.S.C. 919, incorporated into the BLBA by 30
U.S.C. 932(a), makes the APA applicable to the adjudication of claims
under the LHWCA, that provision is incorporated into the Black Lung
Benefits Act only ``except as otherwise provided * * * by regulations
of the Secretary.'' The clear language of the FMSHA and the BLBA thus
authorize the Secretary to depart from the dictates of section 7(c)
when she determines it is in the best interest of the black lung
benefits program.
Moreover, the Court's decision in Greenwich Collieries did not
purport to decide the issues on which a particular party bears the
burden of persuasion. Rather, the Court merely decided that with
respect to two issues on which the claimant bears the burden of proof
under the Secretary's existing regulations (the existence of
pneumoconiosis and the cause of that disease), the claimant must
prevail by a preponderance of the evidence. As the Court observed in
its subsequent decision in Metropolitan Stevedore Co. v. Rambo, 117 S.
Ct. 1953, 1963 (1997), ``the preponderance standard goes to how
convincing the evidence in favor of a fact must be in comparison with
the evidence against it before that fact may be found, but does not
determine what facts must be proven as a substantive part of a claim or
defense.''
Under Greenwich Collieries, then, the Department remains free to
assign burdens of proof to parties as necessary to accomplish the
purposes of the Black Lung Benefits Act. The Department has
historically used regulatory presumptions where they were appropriate.
For example, current 20 CFR 725.492(c), presumes that each employee of
a coal mine operator was regularly and continuously exposed to coal
dust during the course of his employment. In promulgating this
regulation, the Department noted that such a showing required evidence
that was not generally available to the Department; rather such
evidence was within the control of the employer. 43 FR 36802-03 (Aug.
18, 1978). Current 20 CFR 725.493(a)(6) presumes that a miner's
pneumoconiosis arose in whole or in part out of employment with the
employer that meets the conditions for designation as the responsible
operator. Unless the presumption is rebutted, the regulation requires
the responsible operator to pay benefits to the claimant on account of
the miner's total disability or death. One commenter objected to this
presumption, set forth in revised Sec. 725.494(a), as a violation of
Greenwich Collieries, notwithstanding the Act's specific provision
authorizing the use of presumptions with respect to assignment of
liability to a miner's former employers. 30 U.S.C. 932(h).
Even where the BLBA is silent, the Act grants the Secretary
sufficiently broad rulemaking authority to authorize the adoption of
other presumptions. In American Hospital Association v. NLRB, 499 U.S.
606 (1991), the Court considered the ability of the National Labor
Relations Board, using similarly broad regulatory authority, to define
an appropriate bargaining unit by rulemaking even though the statute
required the Board to decide the appropriate bargaining unit ``in each
case.'' Citing a series of previous decisions, the Court held that
``even if a statutory scheme requires individualized determinations,
the decisionmaker has the authority to rely on rulemaking to resolve
certain issues of general applicability unless Congress clearly
expresses an intent to withhold that authority.'' Id. at 612. The Court
expanded on the NLRB's rulemaking authority in Allentown Mack Sales and
Service, Inc. v. NLRB, 118 S. Ct. 818 (1998). In dicta, the Court
concluded as follows:
The Board can, of course, forthrightly and explicitly adopt
counterfactual evidentiary presumptions (which are in effect
substantive rules of law) as a way of furthering legal or policy
goals--for example, the Board's irrebuttable presumption of majority
support for the union during the year following certification, see,
e.g., Station KKHI, 284 N.L.R.B. 1339, 1340, 1987 WL 89811 (1987),
enf'd, 891 F.2d 230 (C.A.9 1989). The Board might also be justified
in forthrightly and explicitly adopting a rule of evidence that
categorically excludes certain testimony on policy grounds, without
regard to its inherent probative value. (Such clearly announced
rules of law or of evidentiary exclusion would of course by subject
to judicial review for their reasonableness and their compatibility
with the Act.)
Id. at 828.
The NLRB's rulemaking authority in this regard is not unique. The
federal courts have upheld the use of presumptions by agencies as
diverse as the Department of Transportation, see Chemical Manufacturers
Association v. Department of Transportation, 105 F.3d 702, 705 (D.C.
Cir. 1997) (``It is well settled that an administrative agency may
establish evidentiary presumptions''); the Interstate Commerce
Commission, see Western Resources, Inc. v. Surface Transportation
Board, 109 F.3d 782, 788 (D.C. Cir. 1997); the Nuclear Regulatory
Commission, see New England Coalition on Nuclear Pollution v. NRC, 727
F.2d 1127, 1129 (D.C.Cir.1984) (Scalia, J.) (even a statutory mandate
requiring consideration of a specific issue ``does not preclude the
adoption of appropriate generalized criteria that would render some
case-by-case evaluations unnecessary''); and the Department of
Education, see Atlanta College of Medical and Dental Careers, Inc. v.
Riley, 987 F.2d 821, 830 (D.C. Cir. 1993) (``* * * under the
circumstances, it would seem quite reasonable for the Secretary to
adopt regulations or even adjudicatory presumptions--bright-line
rules--as to what a school must show * * *''). To the extent that the
Department, like any other administrative agency, uses rulemaking to
establish a presumption, that presumption must be based on a rational
nexus between the proven facts and the presumed facts. Chemical
anufacturers Association, 105 F.3d at 705; NLRB v. Baptist Hosp.,
Inc., 442 U.S. 773, 787 (1979).
The Department's proposed regulations include provisions that
adjust burdens of proof among the parties. Section 725.495(c)(2), for
example, provides that the potentially liable operator designated as
the responsible operator by the Office of Workers' Compensation
Programs bears the burden of establishing that another operator that
employed the miner more recently is financially capable of assuming
liability for the payment of benefits. Section 726.312 specifically
allocates various burdens of proof between the Department and a coal
mine operator against which the Department is seeking a civil money
penalty for failure to secure the payment of benefits.
In its initial notice of proposed rulemaking, 62 FR 3337 (Jan. 22,
1997) and in this notice, the Department has demonstrated that such
assignments of
[[Page 54974]]
burdens of proof have been carefully tailored to meet the specific
needs of the black lung benefits program. Accordingly, the Department
does not agree with those commenters who argue that the Supreme Court's
decision in Greenwich Collieries prohibits the Department from
requiring responsible operators and their insurers to meet any burden
of proof in adjudications under the Act.
20 CFR Part 718--Standards for Determining Coal Miners' Total
Disability or Death Due to Pneumoconiosis
Subpart A--General
20 CFR 718.3
(a) In its earlier proposal, the Department proposed to delete
subsection (c) of Sec. 718.3, which the Department had cited to the
Supreme Court in support of its argument in favor of a "true doubt"
rule. Under the "true doubt" rule, an evidentiary issue was resolved
in favor of the claimant if the probative evidence for and against the
claimant was in equipoise. In Director, OWCP v. Greenwich Collieries,
512 U.S. 267 (1994), the Court held that an administrative law judge's
use of the rule violated the Administrative Procedure Act, and that
Sec. 718.3 was an ambiguous regulation that could not be read as
authorizing such a rule.
A number of commenters argue that the Supreme Court held any ``true
doubt'' rule improper. Other comments urge the Department to reinstate
the "true doubt" rule by promulgating a regulation that clearly
authorizes fact-finders to use the rule in evaluating evidence in black
lung benefits claims. Throughout this rulemaking, however, the
Department has consistently stressed the need for factfinders to
conduct in-depth analyses of the evidence based on its quality rather
than quantity. Moreover, opinions by the courts of appeals and the
Benefits Review Board over the past twenty years have firmly
established that the evaluation of conflicting medical evidence
includes consideration of a wide variety of disparate factors, thus
making the applicability of any true doubt rule extremely limited. In
the case of a medical report, for example, the factfinder must examine
the report's documentation, its reasoning, its relationship to the
other medical reports of record, and the physician's qualifications or
other special status. The availability of all of these factors makes it
unlikely that a factfinder will be able to conclude that the evidence,
although in conflict, is equally probative. Accordingly, the Department
does not believe that the promulgation of a revised "true doubt" rule
will enhance decision-making under the Black Lung Benefits Act.
(b) Several comments urge the Department to retain subsection (c)
of the current version of Sec. 718.3. They argue that even if the
language does not explicitly provide a "true doubt" rule, it is a
useful reminder to factfinders of the purposes of the Black Lung
Benefits Act. In particular, they point to the Department's quality
standards for medical evidence and issues in which medical science does
not provide a definitive answer. The Department recognizes that the
adjudication of black lung benefits claims requires recognition of the
difficulties faced by claimants in establishing their entitlement to
benefits. Revised Sec. 718.101, for example, will require ``substantial
compliance'' with all of the quality standards applicable to medical
evidence, rather than strict adherence. Requiring ``substantial
compliance'' with the quality standards will give the fact-finder
sufficient flexibility to determine whether a particular piece of
evidence is probative of the claimant's condition notwithstanding its
failure to meet a relatively minor quality standard provision. The
Department does not agree, however, that section 718.3 should contain a
separate, and wholly unenforceable, statement of general principles.
Subsection (c) simply restates Congressional intent reflected in the
legislative history of the 1972 and 1978 amendments to the Black Lung
Benefits Act, see S. Rep. No. 743, 92nd Cong., 2nd Sess. 11, 1972
U.S.C.C.A.N. 2305; S. Rep. No. 95-209, 95th Cong., 2nd Sess. 13, 1978
U.S.C.C.A.N. 237. That legislative history may be used to support a
party's argument regardless of whether it is repeated in the
Secretary's regulations.
Subpart B
20 CFR 718.101
(a) The Department's proposed revision is intended to make clear
its disagreement with Benefits Review Board case law holding that the
Department's quality standards are applicable only to evidence
developed by the Director, OWCP. See Gorzalka v. Big Horn Coal Co., 16
Black Lung Rep. 1-48, 1-51 (Ben. Rev. Bd. 1990). Accordingly, the
Department proposed to amend the regulations to ensure that all
evidence developed in connection with black lung benefits claims meets
certain minimal quality standards. One comment observes that, as
drafted, the Department's revisions would allow factfinders to
invalidate medical evidence in claims already pending before the
Department although that evidence was valid under Board precedent when
it was developed. The Department agrees that upsetting settled
expectations regarding the applicability of the quality standards may
work a substantial hardship in some cases, particularly those involving
unrepresented claimants. Consequently, the Department has revised the
language in section 718.101(b) to clarify that the mandatory nature and
general applicability of the quality standards is prospective only.
Once a final rule takes effect, any testing or examination conducted
thereafter in connection with a black lung benefits claim that does not
substantially comply with the applicable quality standard will be
insufficient to establish the fact for which it is proffered.
(b) Four comments oppose the general requirement in Sec. 718.101(b)
that all evidence developed by any party in conjunction with a claim
for black lung benefits must be in substantial compliance with the
quality standards contained in subpart B. One comment notes the special
hardship imposed on miners in trying to generate conforming evidence.
Three comments assert that exclusion of nonconforming evidence violates
the statutory mandate that "all relevant evidence" be considered in
determining whether a claimant is entitled to benefits. 30 U.S.C.
923(b). The Department disagrees. The quality standards have been an
integral part of claims development and adjudication since the Part 718
regulations were first promulgated in 1980. The Department has also
consistently taken the position that the standards apply to all
evidence developed by any party for purposes of prosecuting, or
defending against, a claim for benefits. The proposed change simply
makes this position clear. Finally, employing quality standards to
ensure the use of reliable and technically accurate evidence is
consistent with section 923(b). Evidence which fails the ``substantial
compliance'' standard is inherently unreliable and thus necessarily
inadequate to prove or disprove entitlement issues, and therefore is
not "relevant" to the adjudication of the claim.
(c) One comment asks that the Department clarify that the quality
standards represent the only basis on which the reliability of a
medical opinion or test may be challenged. As an example, the comment
states that physicians cite the correlation between the one-second
Forced Expiratory Volume and the Maximum Voluntary Ventilation as a
basis for invalidating a
[[Page 54975]]
pulmonary function test, even though the MVV is not a required part of
the test. In the Department's view, the quality standards provide
factfinders with flexibility in their examination of the medical
evidence of record. If an alleged flaw in medical evidence is not
relevant to the necessary test results, the factfinder may properly
ignore that flaw. The Department's quality standards, however, are not
intended to serve as the sole basis upon which medical evidence may be
evaluated. Instead, parties are free to develop any evidence that
pertains to the validity of the medical evidence in order to provide
the factfinder with the best evidence upon which to base a finding
regarding the miner's physical condition.
(d) Two comments are concerned that the quality standards could
result in the exclusion of a miner's hospitalization and/or medical
treatment records, or a report of biopsy or autopsy. Section 718.101,
however, makes the quality standards applicable only to evidence
"developed * * * in connection with a claim for benefits" governed by
20 CFR Parts 725 and 727. Therefore, the quality standards are
inapplicable to evidence, such as hospitalization reports or treatment
records, that is not developed for the purpose of establishing, or
defeating, entitlement to black lung benefits.
(e) One comment advocates permitting consideration of nonconforming
tests which produce clinical results comparable to conforming tests.
This suggestion is rejected for the reasons expressed in paragraph (b):
failure to comply with the applicable quality standards deprives the
evidence of its probative worth. Moreover, a nonconforming test which
produces results similar to a conforming test does not significantly
enhance the fact-finding process, given the availability of the
technically accurate results.
(f) One comment would require the Department to notify a party who
submits nonconforming evidence, and afford an opportunity to
rehabilitate the evidence. This requirement is unnecessary. Each party
is responsible for developing evidence in support of its position which
complies with the quality standards. Moreover, proposed Sec. 725.406
does impose a duty on the district director to ensure that the medical
examination sponsored by the Department is valid and conforming. If the
district director identifies any deficiency in that examination, he
must notify the physician and the miner, and take reasonable steps to
correct that deficiency. Finally, evidence may be submitted up to
twenty days before the formal hearing up to the limits provided in
proposed Sec. 725.414. If the opposing party submits evidence in
rebuttal, proposed Sec. 725.414 will permit the party that proffered
the original evidence to attempt to rehabilitate evidence by submitting
an additional report from the preparer of the original report.
(g) Other comments oppose the use of quality standards in general
terms. For the reasons expressed in the preamble to the proposed
regulations, 62 FR 3341-42 (Jan. 22, 1997), the Department believes
that such standards are necessary to ensure the development of reliable
and technically accurate evidence for the adjudication of claims.
Several comments express general support for requiring all parties to
develop their medical evidence in conformance with the relevant quality
standards.
20 CFR 718.103
(a) One physician who testified at the Department's Washington,
D.C. hearing objected to the proposal, set forth in Appendix B to Part
718, that would have precluded miners undergoing pulmonary function
testing from taking an initial inspiration from room air and instead
would have required an initial inspiration from the spirometer.
Transcript, Hearing on Proposed Changes to the Black Lung Program
Regulations (July 22, 1997), p. 306 (testimony of Dr. David James).
Under questioning by the Department's medical consultant, Dr. Leon
Cander, Dr. James stated that use of the flow-volume loop would be more
widely acceptable than the Department's proposal prohibiting an initial
open-air inspiration. Transcript, pp. 319-320. After careful
consideration, the Department agrees that the flow-volume loop may
offer a more reliable method of ensuring valid, verifiable results in
pulmonary function testing, and proposes to revise Sec. 718.103 in
order to require that the flow-volume loop be used for every pulmonary
function test administered to establish or defeat entitlement under the
Black Lung Benefits Act. Spirometers capable of producing a flow-volume
loop, and of electronically deriving a set of tracings showing volume
versus time, are in use in a number of clinics and facilities
specializing in the treatment of pulmonary conditions. While this
notice of proposed rulemaking is open for public comment, the
Department intends to conduct a survey of those clinics and facilities.
Among the information the Department will seek is the extent to which
they already use spirometers capable of producing flow-volume loops.
The Department further notes that for clinics that do not already
possess such a spirometer, the cost is less than $2,000. Because the
use of flow-volume loops will increase the reliability of the pulmonary
function study evidence submitted in black lung claims with only
minimal cost, the Department proposes that all pulmonary function tests
conducted after the effective date of the final rule be submitted in
this form. Proposed changes have been made to subsections (a) and (b),
as well as Appendix B, to accomplish this result. The Department
invites comment on these changes.
(b) Dr. James also observed that the language of subsection (a) is
misleading in suggesting that pulmonary function testing may produce
either a Forced Vital Capacity (FVC) or a Maximum Voluntary Ventilation
(MVV) value. Transcript, Hearing on Proposed Changes to the Black Lung
Program Regulations (July 22, 1997), pp. 304-5 (testimony of Dr. David
James). Dr. James noted that a test must produce an FVC value in order
to obtain a Forced Expiratory Volume for one second (FEV1), which is
required by the regulation. The Department agrees, and has proposed
revising subsection (a) accordingly.
(c) The Department also proposes to revise subsection (b) in order
to conform the regulation to the requirements of Appendix B. Currently,
section 718.103(b) requires that three tracings of the MVV be performed
unless the largest two values of the MVV are within 5 percent of each
other. 20 CFR 718.103(b). Appendix B, however, provides that MVV
results will be considered to have excessive variability if the two
largest values vary by more than 10 percent. The Department proposes to
adopt the 10 percent standard uniformly.
(d) Two comments request the Department to amend section 718.103 to
ensure that a miner's failure to produce a valid MVV value will not
affect the validity of the FEV1 and FVC values. The Department agrees
that the validity of the two tests should be assessed independently.
The proposed change to subsection (a) will highlight the optional
nature of the MVV test. Both comments also suggest that the failure of
a test report to meet all of the requirements of subsection (b), such
as the DOL claim number, should not wholly invalidate a test. Like
other medical evidence, pulmonary function tests will be subject to the
requirement of proposed Sec. 718.101 that they be in ``substantial
compliance'' with the Department's quality standards. In a particular
case, the parties remain free
[[Page 54976]]
to argue that a report's failure to meet certain technical requirements
contained in the quality standards should not necessarily invalidate
the report. The Department does not believe, however, that it would be
appropriate to wholly remove these requirements from its quality
standards.
(e) One commenter observes that pulmonary function tests are not
appropriate in all cases, noting that such testing may pose a danger to
the health of some claimants. Section 718.103 does not affirmatively
require the performance of pulmonary function tests, but merely sets
forth the standards applicable to such studies, if performed. The
Department agrees, however, that there may be cases in which
performance of a pulmonary function test may be medically
contraindicated. As a result, the Department has proposed revising
Sec. 718.104(a)(6) to recognize that a medical report may not be
excluded from consideration simply because the claimant's condition
does not allow a physician to administer a pulmonary function test. The
Department has also proposed reinstating language in
Sec. 718.204(b)(2)(iv) that was inadvertently deleted from its initial
proposal, 62 FR 3377 (Jan. 22, 1997).
20 CFR 718.104
(a) One commenter objects to the requirement in subsection (a)(6)
that all medical reports contain the results of pulmonary function
testing. The commenter notes that in some cases, a miner may be
physically unable to perform a pulmonary function test, or such a test
may be medically contraindicated. The Department agrees, and has
proposed revising subsection (a)(6) in order to recognize this
possibility. When a miner cannot take a pulmonary function test, a
physician writing a medical report must substantiate his conclusion(s)
with other medically acceptable clinical and laboratory diagnostic
techniques. This proposed addition merely recognizes the Department's
longstanding position that pulmonary function tests may be medically
contraindicated. The current regulation at 20 CFR 718.204(c)(4), which
provides that a reasoned medical judgment may establish the presence of
a totally disabling respiratory or pulmonary impairment, expressly
recognizes that pulmonary function tests may be contraindicated.
Similarly, the 1980 discussion accompanying promulgation of 20 CFR
718.103 acknowledged the same point: ``If the physician believes that
pulmonary function testing would impose a risk to the patient's well-
being, the physician should so state and refuse to have the patient
perform the pulmonary function tests.'' 45 FR 13682 (Feb. 29, 1980).
(b) Several commenters request that the regulation recognize that a
treating physician's opinion may be used to establish all elements of a
miner's entitlement to benefits. Although the proposed regulation was
not intended to restrict the use of such a report, the Department has
revised subsection (d) to explicitly list the elements of entitlement
which a treating physician's opinion may establish.
(c) Several commenters suggest that the Department accept a
physician's statement as to the nature and duration of his relationship
with the miner, and the frequency and extent of his treatment of the
miner. The Department agrees that a claimant should not have to produce
additional proof documenting these factors beyond that provided in the
four corners of the physician's report unless the opposing party
supplies credible evidence that demonstrates that the physician's
statement is mistaken. The Department has therefore proposed an
addition to subsection (d)(5) to make its intent clear.
(d) Proposed paragraph (d), which would allow a fact-finder to give
controlling weight to the opinion of a treating physician provided
certain conditions are met, elicited a great deal of comment. Many
commenters supported the proposal, noting that a treating physician has
a greater familiarity with the miner's physical condition than a doctor
who has only seen him once. Others opposed giving special credence to
"small-town" doctors without special expertise or training in
respiratory or pulmonary disorders. Others simply expressed general
opposition to the proposal. In the preamble accompanying its initial
proposal, the Department explained that the proposed regulation
attempted to codify existing case law and drew on a similar regulation
adopted by the Social Security Administration, 20 CFR 404.1527(d)(2).
See 62 FR 3338, 3342 (Jan. 22, 1997). The Department specifically
invites comment on alternative methods for determining when a treating
physician's opinion is entitled to controlling weight, including
whether to adopt the Social Security Administration's rule.
(e) Several commenters suggest that the proposed subsection (d)(5)
is unnecessary and undermines any Departmental attempt to give a
treating physician's opinion controlling weight. They request that the
Department delete certain language in subsection (d)(5), which requires
the factfinder to consider not only the treating physician's
documentation and reasoning but also the other relevant evidence of
record in determining whether the treating physician's opinion is
entitled to controlling weight. These commenters would have the finder
of fact credit a treating physician's opinion which meets the criteria
in (d)(1)-(4) and is documented and reasoned without regard to the
other relevant evidence of record. Another comment suggests that the
Department has already accomplished this result, in violation of
section 413(b) of the Act, 30 U.S.C. 923(b). The Department does not
accept either suggestion. The purpose of the regulation is not to limit
a factfinder's consideration of any properly admitted medical or other
relevant evidence. Indeed, to do so might result in a mechanistic
crediting of a treating physician's opinion which the courts have
cautioned the Department to avoid. See Sterling Smokeless Coal Co. v.
Akers, 131 F.3d 438, 441 (4th Cir. 1997); 62 FR at 3342 (Jan. 22,
1997). Rather, the proposed regulation would mandate only that the
factfinder recognize that a physician's long-term treatment of the
miner may give that physician additional insight into the miner's
respiratory or pulmonary condition.
(f) Several commenters oppose any rule suggesting treating
physicians' opinions may be given controlling weight. They argue that a
factfinder's evaluation of a medical opinion should be based solely on
the documentation and reasoning of that opinion as well as the
qualifications of the physician. As the Department noted in its initial
notice of proposed rulemaking, 62 FR 3342 (Jan. 22, 1997), special
weight may be given a treating physician's opinion because that
physician has been able to observe the miner over a period of time, and
therefore may have a better understanding of the miner's physical
condition. Although the factfinder must still evaluate the treating
physician's report in light of all of the other relevant evidence of
record, he should nevertheless be aware of the additional insight that
a treating physician may bring to bear on the miner's respiratory or
pulmonary condition.
(g) Some commenters suggest that the "treating physician" rule
should be removed from Sec. 718.104 and made a separate regulation. One
suggests that its current placement appears to require that the
treating physician's opinion must conform to the quality standards
applicable to a report of physical examination. The Department intends
that all reports of physical examination, including a report submitted
by the
[[Page 54977]]
miner's treating physician, conform to the quality standards set forth
in Sec. 718.104 if they are to be sufficient to establish or refute
entitlement. The Department thus does not agree that subsection (d),
governing treating physicians' opinions, should be made a separate
regulation.
(h) Several commenters state that the miner should be able to
submit his treating physician's opinion without regard to the
limitation on the amount of evidence each party would be able to submit
under Sec. 725.414. These commenters argue that claimants, who are
often unrepresented at the earliest stages of claims processing, will
submit opinions from their treating physicians that do not conform to
the Department's quality standards. The Department recognizes that the
limitation on documentary medical evidence could have a substantial
impact on unrepresented claimants who submit reports prematurely.
Although the Department cannot agree to provide claimants with the
opportunity to submit additional reports, the Department takes very
seriously its obligation to inform all claimants of the evidentiary
limitations in language that is clear and easily understood. In
addition, as set forth in the proposed revision of Sec. 725.406, the
Department intends to make the objective test results from each miner's
section 413(b) pulmonary evaluation available to his treating physician
at the miner's request. By providing these test results to the treating
physician, the Department hopes to ensure that the ensuing opinion is
as well documented as the other medical opinions of record and meets
the Sec. 718.104 quality standard.
(i) Several commenters argue that the terms "treating physician"
and "controlling weight" are not defined. The intent of subsection
(d), however, is not to create a strict rule to determine the outcome
of a factfinder's evaluation of the medical evidence. Instead, the
Department's goal is simply to require the factfinder to recognize the
additional weight to which a physician's opinion may be entitled, in
light of all of the other relevant evidence of record, where that
physician has observed and treated the claimant over a period of time.
(j) Several commenters object to certain language the Department
used in the preamble of its initial notice of proposed rulemaking to
explain its proposed revisions to Sec. 718.104. In the ``Summary of
Noteworthy Proposed Changes,'' 62 FR 3339 (Jan. 22, 1997), the
Department indicated that in evaluating a treating physician's opinion,
a factfinder "must" consider, among other things, the physician's
training and specialization. The Department did not intend to suggest
that a factfinder's failure to consider such factors would necessarily
represent reversible error. Only when a party raises the issue, for
example, in the context of comparing the credentials of physicians
offering contrary opinions, would the factfinder be required to
consider such a factor. Moreover, even under such circumstances, a
physician's training and specialization are only one factor for the
factfinder to weigh in his evaluation of this evidence.
(k) One commenter states that the quality standard applicable to
medical reports should not require that the report include a chest X-
ray. The Department disagrees. A chest X-ray, administered and read in
accordance with Sec. 718.102, is an important component of any
evaluation for pneumoconiosis. Although a physician remains free to
explain an opinion contrary to the medical testing that he conducted or
reviewed, he must nevertheless have the benefit of that testing and
account for its results. The requirement set forth in Sec. 718.101,
that all evidence must be in "substantial compliance" with the
applicable quality standards, affords all parties the opportunity to
establish the reliability of any evidence notwithstanding its failure
to strictly conform to the quality standards.
(l) Two commenters request that the Department remove the clause
from subsection (c) that limits the factfinder's use of non-conforming
evidence in cases in which the miner is deceased and the physician is
unavailable to clarify or correct his report. In such cases, the
factfinder may consider a non-conforming medical report only if the
record does not contain another conforming report. In this way, the
Department hopes to ensure that entitlement determinations are based on
the best quality medical evidence possible.
(m) One comment requests that the Department include ``cardio-
pulmonary exercise testing'' as an "other procedure[]" under
subsection (b). The Department does not intend that subsection (b)
contain an exclusive list of medically acceptable procedures that may
be used by a physician in the course of a physical examination. A
physician is free to use any test, including cardio-pulmonary exercise
testing, if he believes that it would aid in his evaluation of the
miner.
20 CFR 718.105
(a) One comment directed toward Appendix C is also relevant to
paragraph (c)(6). The comment notes that the correct nomenclature for
partial pressure of oxygen and carbon dioxide is an upper-case "P",
not the lower-case "p" currently in use. The comment is correct, and
the reference to the partial pressures will be changed.
(b) Four comments oppose proposed paragraph (d), which requires the
claimant to obtain a physician's opinion that a qualifying blood gas
study conducted during a miner's terminal illness reflects a chronic
respiratory or pulmonary condition caused by coal dust exposure. The
comments suggest that qualifying scores should be presumed indicative
of a totally disabling respiratory impairment unless the party opposing
the claim produces evidence linking the test results to some other
condition. While recognizing the concerns expressed by the comments,
the Department nevertheless believes that paragraph (d) imposes an
appropriate evidentiary burden on the claimant. Arterial blood gas
studies conducted during a terminal illness hospitalization may be
especially susceptible to producing low values unrelated to chronic
respiratory or pulmonary disease. Consequently, reliance on such
studies should be predicated on an additional showing that the
qualifying (or abnormal) test results can be medically linked to
chronic lung disease. One comment supported this proposal.
(c) Two comments object to the requirement in paragraph (d) that
the chronic respiratory or pulmonary impairment demonstrated by the
"deathbed" blood gas study must also be ``related to coal mine dust
exposure.'' The Department agrees. The primary objective behind
paragraph (d) is to ensure a connection between the qualifying blood
gas values and a chronic respiratory or pulmonary impairment, rather
than some other acute pathologic cause incidental to the miner's
terminal illness. Thus, paragraph (d) addresses only the existence of a
chronic respiratory or pulmonary impairment itself, not its cause.
Including a requirement linking the chronic impairment to coal mine
dust exposure is therefore inappropriate for purposes of Sec. 718.105.
The claimant must still prove that any totally disabling respiratory or
pulmonary impairment demonstrated by these blood gas study results
arose out of coal mine employment in order to receive benefits, 20 CFR
718.204(c)(1). Paragraph (d) has been revised to delete
[[Page 54978]]
the phrase "related to coal mine dust exposure."
20 CFR 718.106
(a) Five comments urge the Department to restore the current
paragraph (c), 20 CFR 718.106(c), which was omitted from the proposed
regulation. This paragraph provides that the negative findings on a
biopsy are not conclusive evidence that pneumoconiosis is absent, while
positive findings do constitute evidence of the disease. The omission
was inadvertent, and paragraph (c) will be restored in the final rule.
(b) Two comments oppose the requirement in paragraph (a) that the
autopsy protocol must include a gross macroscopic inspection of the
lungs. The comments suggest that the requirement would implicitly
preclude a pathologist from submitting an opinion based exclusively on
a review of microscopic tissue samples. Paragraph (a) was not altered
when the Department proposed changes to Sec. 718.106. This provision
only requires macroscopic findings for purposes of the autopsy itself;
no such findings are required for a reviewing physician. Consequently,
a physician other than the autopsy prosector may submit an opinion
based exclusively on the microscopic tissue samples. No change is
necessary to permit such opinions.
(c) Several comments urge the Department to adopt the criteria for
diagnosing pneumoconiosis by autopsy or biopsy generated by the
American College of Pathologists and Public Health Service in 1979. The
Department has previously declined to promulgate specific pathological
standards for diagnosing pneumoconiosis by autopsy or biopsy. 45 FR at
13684 (Feb. 29, 1980); 48 FR at 24273 (May 31, 1983). Furthermore, the
record does not contain any evidence addressing, or establishing, a
consensus in the medical community about the accepted standards for
diagnosing pneumoconiosis by autopsy or biopsy. Although the comment
refers to Kleinerman et al., ``Pathologic Criteria for Assessing Coal
Workers' Pneumoconiosis,'' in the Archives of Pathology and Laboratory
edicine (June 1979), the record does not establish whether this
article reflects the current prevailing standards for diagnosing
pneumoconiosis. The recommendation is therefore rejected.
20 CFR 718.107
(a) One comment suggests modifying the reference to ``respiratory
impairment'' in paragraph (a) to ``respiratory or pulmonary
impairment.'' The Department accepts this suggestion because the
current paragraph (a) refers to ``respiratory or pulmonary
impairment,'' and the omission of "pulmonary" was inadvertent.
Another comment recommended adding disability and disability causation
to the list of issues for which a party may submit ``other medical
evidence.'' Paragraph (a) is unchanged from the current provision,
except as described in the previous discussion, and satisfactorily sets
forth the general purposes for which "other medical evidence" may be
offered. The suggested change is therefore unnecessary.
(b) One comment supports the addition of proposed paragraph (b).
Subpart C
20 CFR 718.201
(a) In its initial notice of proposed rulemaking, 62 FR 3343, 3376
(Jan. 22, 1997), the Department proposed revising the definition of the
term "pneumoconiosis" to recognize the progressive nature of the
disease. The Department also proposed clarifying the existing
definition to make clear that obstructive lung disease may fall within
the definition of pneumoconiosis if it is shown to have arisen from
coal mine employment. The proposal would not alter the current
regulations' requirement that each miner bear the burden of proving
that he has pneumoconiosis, 20 CFR 718.403, 725.202(b); proposed
Secs. 725.103, 725.202(d)(2)(i). Thus, notwithstanding the proposed
revision, in order to demonstrate that he has pneumoconiosis, each
miner would be required to prove that his lung disease arose out of
coal mine employment. If a miner's chest X-rays, autopsy or biopsy
demonstrate the presence of the disease, and the miner has at least ten
years of coal mine employment, he is aided by a statutory presumption
that his pneumoconiosis arose out of coal mine employment. 30 U.S.C.
921(c)(1). If, however, the miner fails to demonstrate the existence of
pneumoconiosis by means of X-ray, biopsy or autopsy, he must prove that
his lung disease arose out of coal mine employment in order to carry
his burden of proof and establish that he has pneumoconiosis.
A number of commenters representing coal mine operators and the
insurance industry object strongly to both revisions, arguing that the
Department lacks the authority to elaborate on the statute's definition
of pneumoconiosis, and that, in any event, the Department had violated
the statute by failing to consult with the National Institute for
Occupational Safety and Health (NIOSH) before proposing the changes. 30
U.S.C. 902(f)(1)(D). The commenters also argue that the Department's
proposed revision lacks a sound medical basis and would therefore
unjustifiably increase the number of claims approved. In support of
their arguments, these commenters presented testimony at the
Department's Washington, DC, hearing from a panel of physicians with
expertise in pulmonary medicine. Transcript, Hearing on Proposed
Changes to the Black Lung Program Regulations (July 22, 1997), pp. 19-
83.
The Department also received comments, as well as testimony,
supporting the proposed changes from black lung associations, miners,
and several physicians with expertise in pulmonary medicine. Among the
favorable comments was one from NIOSH, which approved both aspects of
the Department's proposed revision to Sec. 718.201. In so doing, NIOSH
referenced its own 1995 publication, the same document that the
Department had cited in its initial notice of proposed rulemaking,
``National Institute for Occupational Safety and Health, Occupational
Exposure to Respirable Coal Mine Dust,'' Secs. 4.1.2, 4.2.2 et seq.
(1995). 62 FR 3343 (Jan. 22, 1997).
NIOSH was created by the Occupational Safety and Health Act ``in
order to carry out the policy set forth in section 651'' of that Act as
well as to perform certain functions in support of the Occupational
Safety and Health Administration. 29 U.S.C. 671. Among its other
provisions, section 651 encourages the Occupational Safety and Health
Administration to ``explor[e] ways to discover latent diseases,
establish [] causal connections between diseases and work in
environmental conditions, and conduct [] other research relating to
health problems.'' 29 U.S.C. 651(b)(6). Accordingly, Congress created
NIOSH as a source of expertise in occupational disease and as an expert
in the analysis of occupational disease research. Given the widely
divergent comments received from medical professionals on this proposed
regulation, the Department sought additional guidance from NIOSH by
providing it with all of the comments and testimony the Department had
received relevant to the proposed revisions to Sec. 718.201. The
Department requested that NIOSH advise it whether any of the material
altered that agency's original opinion.
NIOSH concluded as follows:
[[Page 54979]]
The unfavorable comments received by DOL do not alter our
previous position: NIOSH scientific analysis supports the proposed
definitional changes. Research indicates that the proposed changes
are reasonable and could be incorporated to further refine the
definition of pneumoconiosis in the BLBA regulations.
Letter from Dr. Paul Schulte, Director, Education and Information
Division (Dec. 7, 1998). In addition to the 1995 NIOSH publication, Dr.
Schulte cited several recent studies and other sources: ``Coal mining
and chronic obstructive pulmonary disease: a review of the evidence''
[Coggon and Newman-Taylor 1998]; ``The British Coal Respiratory Disease
Litigation'' [Judgment of Mr. Justice Turner]; ``Progression of simple
pneumoconiosis in ex-coalminers after cessation of exposure to coalmine
dust'' [Donnan et al. 1997]; ``Adverse effects of crystalline silica
exposure'' [American Thoracic Society (ATS) 1997]; ``Risk of silicosis
in a Colorado mining community'' [Kriess and Zehn 1996]; and ``Risk of
silicosis in a cohort of white South African gold miners'' [Hnizdo and
Sluis-Cremer 1993]. He concluded as follows:
These publications provide additional support for the NIOSH
position stated in the August 20, 1997 letter: ``NIOSH continues to
support the proposed amendment to Section 718.201 to include chronic
obstructive pulmonary disease in the definition of pneumoconiosis;
NIOSH also supports the revision of the definition of pneumoconiosis
to reflect the scientific evidence that pneumoconiosis is an
irreversible, progressive condition that may become detectable only
after cessation of coal mine employment, in some cases.''
Given this NIOSH review and conclusion, the Department sees no
scientific or legal basis upon which to alter its original proposal. To
the extent that the Department was required to consult with NIOSH, it
has now done so. Finally, as addressed elsewhere in this proposal, the
Department believes that it possesses the statutory authority to
promulgate a legislative regulation defining the term
"pneumoconiosis." See Old Ben Coal Co. v. Scott, 144 F.3d 1045, 1048
(7th Cir. 1998), citing Peabody Coal Co. v. Spese, 117 F.3d 1001, 1009-
1010 (7th Cir. 1997) (en banc).
(b) One commenter objects to the proposed definition of ``legal
pneumoconiosis'' on the ground that Sec. 718.202(a)(2) does not contain
the requirement that the covered disease must be a "dust" disease of
the lung. The commenter also believes that this definition would
include all obstructive pulmonary disease. The Department disagrees
with both points. Section 718.201 begins in paragraph (a) with the
statutory definition of pneumoconiosis, stating that pneumoconiosis
means a chronic "dust" disease of the lung and its sequelae.
Paragraph (a)(2) is a subdivision of the introductory paragraph and in
no way contradicts it. In fact, by its very terms, the proposed
definition of pneumoconiosis would cover only that lung disease arising
out of coal mine employment, i.e., lung disease significantly related
to, or substantially aggravated by, dust exposure in coal mine
employment. Sec. 718.201(b).
(c) Two commenters argue that Congress rejected an amendment to the
definition of pneumoconiosis that would have included obstructive lung
disorders, and that the Department therefore lacks the authority to
make such a change. Above, the Department explained that Congress's
consideration of, but failure to enact, legislation on particular
subjects does not bar the Department from promulgating regulations on
those subjects, provided the Department is acting within the scope of
Congress's grant of regulatory authority. Thus, the Department does not
agree that Congressional inaction renders invalid its proposed
amendment of the definition of "pneumoconiosis."
20 CFR 718.204
(a) In reviewing the comments submitted in response to the initial
notice of proposed rulemaking, the Department realized that it had
inadvertently omitted language from the current version of 20 CFR
718.204(c)(4) setting out circumstances under which a claimant may
establish total disability by means of a medical report. The Department
intended no change in the regulation's meaning and has restored the
omitted language to proposed Sec. 718.204(b)(2)(iv).
(b) A number of commenters object to the Department's proposed
amendment to subsection (a), while others support it. That revision is
intended to ensure that disabling nonrespiratory conditions are not
considered a bar to entitlement when the miner also suffers from
totally disabling pneumoconiosis. As the Department explained in its
initial notice of proposed rulemaking, the revision announces the
Department's preference for the Sixth Circuit's decision in
Youghiogheny & Ohio Coal Co. v. McAngues, 996 F.2d 130 (6th Cir. 1993),
cert. den., 510 U.S. 1040 (1994), over the Seventh Circuit's decision
in Peabody Coal Co. v. Vigna, 22 F.3d 1388 (7th Cir. 1994). 62 FR 3344-
45 (Jan. 22, 1997). After preparation of the Department's proposal, the
Sixth Circuit held, for the first time in a Part 718 case, that a miner
may not be denied black lung benefits simply because he may also be
totally disabled by a coexisting non-respiratory impairment. Cross
ountain Coal Co., Inc. v. Ward, 93 F.3d 211, 216-217 (6th Cir. 1996).
The commenters have provided no basis upon which to alter the
Department's original proposal.
(c) A number of commenters object to the Department's proposal to
revise subsection (b)(1) to codify the Department's position that a
miner is entitled to benefits only if his respiratory or pulmonary
impairment is totally disabling. The commenters urge that the
Department adopt a "whole person" approach, allowing an award of
benefits if pneumoconiosis contributed at least in part to the miner's
overall disability, considering both respiratory and nonrespiratory
impairments. Although the commenters argue that the Department's
position violates the statute, the Third and Fourth Circuits have
reached a contrary conclusion. Beatty v. Danri Corp. & Triangle
Enterprises, 49 F.3d 993 (3d Cir. 1995); Jewell Smokeless Coal Corp. v.
Street, 21 F.3d 241 (4th Cir. 1994). Because the commenters offer no
other basis upon which to amend the Department's proposal, subsection
(b)(1) has not been changed.
(d) A number of commenters take issue with the Department's
proposal to define disability causation in subsection (c). Several
commenters state that the Department has no authority to issue such a
regulation, suggesting that the statutory language is clear. The
Department disagrees. The statute authorizes the payment of benefits
"[i]n the case of total disability of a miner due to pneumoconiosis,"
30 U.S.C. 922(a)(1), and explicitly provides that ``[t]he term ``total
disability'' has the meaning given it by regulations * * * of the
Secretary of Labor under part C of this title * * *.'' 30 U.S.C.
902(f)(1). Even absent such an explicit grant of rulemaking authority,
Congress' use of the broad phrase "due to" leaves significant
questions in resolving the issue of disability causation. In Atlanta
College of Medical and Dental Careers, Inc. v. Riley, 987 F.2d 821
(1993), the D.C. Circuit noted that the Secretary of Education was
authorized to promulgate interpretative regulations under the Student
Loan Default Prevention Initiative Act. That statute authorized the
Secretary to calculate a default rate from participating schools, but
required him to exclude loans which ``due to improper servicing or
collection, would result in an inaccurate or incomplete calculation.''
Addressing Congress' use of the phrase "due to," the court held:
[[Page 54980]]
And must the school show "but for" causation, proximate
causation or merely some reasonable link? The statute itself
provides no answers to these riddles; accordingly, under Chevron's
second step, we would defer to any reasonable interpretation of the
"due to" language that the Secretary proffered. See also Jerry
ashaw, A Comment on Causation, Law Reform, and Guerilla Warfare, 73
Geo. L. Rev. 1393, 1396 (1985) (identifying the "cause" of
something necessarily implicates a policy choice).
Id. at 830. The Department's definition of disability causation under
the Black Lung Benefits Act is similarly necessary and well within the
scope of its regulatory authority.
Other commenters argue that the Department has selected the wrong
definition. Several commenters suggest that the Department delete the
word "substantially" from paragraph (c)(1). Another asks that the
standard be "due at least in part." One commenter requests that the
Department add the word "substantially" to paragraphs (c)(1)(i) and
(c)(1)(ii). Several comments suggest that the term ``substantially
contributing'' is undefined, and urge that the Department set a
percentage of disability as the threshold, while another commenter asks
that the Department use the term "actual contributing cause" in order
to bar the award of benefits where pneumoconiosis has made only a de
minimis contribution to total disability.
The Department discussed its selection of the ``substantially
contributing cause'' standard in its initial notice of proposed
rulemaking. 62 FR 3345 (Jan. 22, 1997). The Department explained that
its selection was intended to codify a body of caselaw from various
federal appellate courts that differed very little in determining
disability causation. In addition, the proposal paralleled the standard
used by the Department to determine whether a miner's death was caused
by pneumoconiosis. Because the language of the death standard is a
direct reflection of Congressional intent, see 48 FR 24275-24278 (May
31, 1983), the Department believes that it should be used for
disability causation as well. Finally, the Department does not agree
that a percentage threshold is appropriate. As the Department
previously explained, the "substantially contributing cause" standard
requires that pneumoconiosis make a tangible and actual contribution to
a miner's disability. The standard is also further defined in the
proposed regulation. It requires that pneumoconiosis must either have
an adverse effect on the miner's respiratory or pulmonary condition or
worsen an already totally disabling respiratory or pulmonary
impairment. Whether a particular miner meets the ``substantially
contributing cause'' standard is a matter to be resolved based on the
medical evidence submitted in each case.
Finally, several commenters suggest that the Department's proposal
will allow compensation where a miner's totally disabling respiratory
impairment has been caused by cigarette smoking. Neither the Black Lung
Benefits Act, nor the court of appeals decisions, nor the Department's
proposed regulation allows benefits to be awarded where a miner's
totally disabling respiratory impairment is caused solely by cigarette
smoking. The courts have held irrelevant, however, the existence of
causes of a miner's total respiratory or pulmonary disability in
addition to pneumoconiosis. See Jonida Trucking, Inc. v. Hunt, 124 F.3d
739, 744 (6th Cir. 1997) (coexisting heart disease). In such a case,
the miner meets the statutory and regulatory criteria for an award of
benefits.
20 CFR 718.205
(a) Several comments request that the Department reinstate
unrelated death benefits, that is, benefits to surviving spouses of
miners who were totally disabled due to pneumoconiosis at the time of
their death but who did not die due to pneumoconiosis. Although such
benefits were formerly available, Congress amended the Act in 1981 to
require that a surviving spouse who filed her claim on or after January
1, 1982 establish that the miner died due to pneumoconiosis. Pub. L.
97-119, 95 Stat. 1635, Sec. 203(a)(2), (3). The Department cannot issue
regulations contrary to the expressed will of Congress.
Another comment, however, suggests that the Department has done
just that by proposing that a surviving spouse may establish death due
to pneumoconiosis by proving that pneumoconiosis hastened the miner's
death. The Department disagrees. Rather, the Department has simply
proposed codifying a standard that has been unanimously adopted by the
federal courts of appeals, a fact recognized by other commenters. In
addition to the Third, Fourth, Sixth, and Seventh Circuit decisions
cited in the initial notice of proposed rulemaking, 62 FR 3345-3346
(Jan. 22, 1997), the Tenth and Eleventh Circuits have also deferred to
the Director's interpretation of the current regulation, and announced
their support for the standard that the Department is proposing to
codify. Northern Coal Co. v. Director, Office of Workers' Compensation
Programs, 100 F.3d 871, 874 (10th Cir.1996); Bradberry, v. Director,
Office of Workers' Compensation Programs, 117 F.3d 1361, 1365-1366
(11th Cir. 1997). The Department's proposal thus does no more than
recognize the decisions of appellate courts with jurisdiction over more
than 90 percent of the claims filed under the Black Lung Benefits Act.
The suggestion that the Department has violated Congressional intent is
simply incorrect.
(b) One commenter asks the Department to apply the standard set
forth in subsection (b)(2) to claims filed on or after January 1, 1982,
the effective date of the Black Lung Benefits Amendments of 1981.
Subsection (b)(2) permits an award of benefits in a survivor's claim
filed before January 1, 1982 if death was due to multiple causes,
including pneumoconiosis, and it is not medically feasible to
distinguish which disease caused death or the extent to which
pneumoconiosis contributed to the miner's death. This provision is
derived in substantial part from the presumption set forth in section
411(c)(2) of the Act, 30 U.S.C. 921(c)(2), and implemented by 20 CFR
718.304. Under section 411(c)(2), a deceased miner with ten or more
years of coal mine employment, who died from a respirable disease, is
presumed to have died due to pneumoconiosis. In implementing this
provision, the Secretary added Sec. 718.303(a)(1) to the regulations,
allowing death to be found due to a respirable disease if such disease
was one of several causes of the miner's death and it is not feasible
to determine which disease caused death or the extent to which the
respirable disease contributed to the cause of death. Section
718.205(b)(2) permitted an award under similar circumstances in cases
in which the miner had less than 10 years of coal mine employment, but
the survivor had established that pneumoconiosis was one of the
multiple causes of death. In 1981, Congress eliminated the section
411(c)(2) presumption for survivors' claims filed on or after January
1, 1982. Pub. L. 97-119, Sec. 202(b)(1). In promulgating regulations to
effectuate Congress's intent, the Department applied the same
limitation to subsection (b)(2). See comment (p), 48 FR 24278 (May 31,
1983). Because subsection (b)(2) is so closely connected with the
section 411(c)(2) presumption, the Department continues to believe that
it may not apply this regulatory provision to claims filed on or after
January 1, 1982.
[[Page 54981]]
Appendix B to Part 718
(a) The proposed changes to Appendix B are designed to implement
the Department's proposed requirement that physicians use the flow-
volume loop in reporting the results of pulmonary function tests. See
Explanation of proposed Sec. 718.103. The Department invites comment on
these changes.
(b) A number of commenters suggest that one Appendix provision is
unnecessarily restrictive. It requires that the two highest FEV1
results of the three acceptable tracings agree within 5 percent or 100
ml, whichever is greater. Appendix B(2)(ii)(G). They suggest that the
standard either be eliminated entirely, or that it be replaced with a
variability limit of 10 percent or 200 ml. One comment recommends that
the Department should have a separate standard for ensuring the
reliability of FVC results. As proposed, Appendix B limits the
variability only of FEV1 and MVV results.
The Department is reluctant to eliminate the Appendix B(2)(ii)(G)
standard entirely; the standard provides a baseline measurement which
serves to guarantee the reproducibility, and thus the validity, of each
conforming pulmonary function study. However, the Department recognizes
that there may be individuals who are physically unable to produce
results that fall within the 5 percent limit, but whose results are, in
the opinion of the physician administering the test, a valid reflection
of the individual's best effort to perform the test. Accordingly, the
Department invites comment as to how to maintain a standard that
guarantees the reproducibility of the FEV1 and FVC values, but also
allows consideration of valid FEV1 results in excess of the current 5
percent requirement.
(c) Several commenters argue that the Appendix B tables are too
stringent and should be revised. These tables set forth pulmonary
function test results which may establish that a miner's respiratory or
pulmonary impairment is totally disabling. The Black Lung Benefits
Reform Act of 1977 required the Department to consult with the National
Institute for Occupational Safety and Health in the development of
criteria for medical tests that accurately reflect total disability in
coal miners. 30 U.S.C. 902(f)(1)(D). On April 25, 1978, the Department
proposed the pulmonary function test criteria set forth in Appendix B,
setting the "qualifying" values for the FEV1 and MVV test at 60
percent of normal pulmonary function, as adjusted for sex, height, and
age. 43 FR 17730-31 (Apr. 25, 1978). When the Department published the
final Part 718 rules on February 29, 1980, it added tables for the FVC
test. 45 FR 13703-06 (Feb. 29, 1980). The Department also responded to
comments urging that the qualifying values be reduced, observing that
although there was no consensus on the correct values, the record
contained substantial support from experts for the 60 percent figure.
Id. at 13711. The Department did not re-propose the Appendix B tables
in its initial notice of proposed rulemaking, see 62 FR 3373 (Jan. 22,
1997) (noting that the tables in Appendix B remain unchanged), and the
commenters offer no medical support for the request that they be
revised. Consequently, the Department has not proposed any revision of
the table values.
20 CFR Part 725--Claims for Benefits Under Part C of Title IV of
the Federal Mine Safety and Health Act, As Amended
Subpart A--General
20 CFR 725.2
(a) The Department has made several technical changes to the
language of the proposed regulation to make the regulation easier to
read.
(b) This proposal changes Sec. 725.2(c) to add Sec. 725.351 to the
list of amended regulations which will apply only to claims filed after
the effective date of the final rule. The Department's proposal
requires the district director's development of a complete evidentiary
record identifying the proper responsible operator. Once a case is
referred to the Office of Administrative Law Judges, neither the
Director, OWCP, nor a potentially liable operator identified by the
district director will be able to submit any additional evidence on
issues relevant to the responsible operator question. For example, only
while a claim is pending before the district director may a potentially
liable operator contest that it was an operator after June 30, 1973,
that it employed the miner for one year, or that the miner's employment
included at least one working day after December 31, 1969,
Sec. 725.408. Accordingly, the district director must be able to obtain
all of the information necessary to meet the Department's burden of
proof under Sec. 725.495.
To aid the district director in gathering such information, this
proposal revises and streamlines Sec. 725.351, which grants district
directors the power to issue subpoenas duces tecum. A district director
will no longer be required to seek written approval from the Director,
OWCP, prior to issuing such a subpoena. See explanation of
Sec. 725.351. Because the revised regulations governing the
identification of responsible operators, Secs. 725.407-.408, will apply
only to newly filed claims, however, the district director's new
authority under Sec. 725.351 must be similarly limited. Accordingly,
Sec. 725.351 is added to the list of amended regulations which will not
be effective with respect to claims pending on the effective date of
the final rule.
(c) A number of comments request that the Department make the final
rule applicable to all pending claims. As the Department explained in
its original proposal, 62 FR 3347-48 (Jan. 22, 1997), however, it lacks
the statutory authority to make many changes retroactive. In addition,
certain changes, such as the limitation on the quantity of medical
evidence, would seriously disrupt the adjudication of currently pending
claims if they were made universally applicable.
(d) A number of commenters believe that the Department lacks the
authority to make any of the changes retroactive, particularly because
those changes will apply to subsequent claims filed by miners who have
previously been denied benefits. They argue that subsequent claims are
typically based on employment that ended many years ago, and that the
insurance industry is not permitted to charge additional premiums in
order to cover the increased liability that will result under the
Department's proposal. In support of their argument that the Department
is not permitted to effect such a change, they cite the Contract Clause
of the United States Constitution. The Contract Clause is in Section 10
of Article I, which is a series of prohibitions against actions by
state governments. In relevant part, it states that ``[n]o State shall
* * * pass any Bill of Attainder, ex post facto Law, or Law impairing
the Obligation of Contracts, or grant any Title of Nobility.'' The
Supreme Court has observed that ``[i]t could not justifiably be claimed
that the Contract Clause applies, either by its own terms or by
convincing historical evidence, to actions of the National
Government.'' Pension Benefit Guaranty Corp. v. R.A. Gray & Co., 467
U.S. 717, 732, n. 9 (1984). Thus, the Contract Clause does not bar
Congress from enacting any legislation. Similarly, the Contract Clause
is inapplicable to the Secretary's rulemaking by its very terms, and
the comment has cited no precedent to the contrary.
Moreover, the Department does not agree that its proposed
rulemaking results in the impairment of any contracts. At the hearing
held in Washington, D.C., on July 22-23, 1997,
[[Page 54982]]
the Department heard testimony suggesting that the Supreme Court's
recent decision in United States v. Winstar, 518 U.S. 839 (1996),
prohibits the Department's regulatory efforts. At issue in Winstar was
Congress's enactment of legislation that effectively revoked promises
made by the Federal Home Loan Bank Board and the Federal Savings and
Loan Insurance Corporation to induce three thrift institutions to
acquire financially distressed savings and loans. Although the case did
not produce a majority opinion, a majority of the Justices concurred in
the holding that the United States was liable to the thrift
institutions for breach of contract. Justice Souter's plurality opinion
observed that the promises at issue were central to the institutions'
agreement to acquire the troubled savings and loans; absent the
government's promise, ``the very existence of their institutions would
then have been in jeopardy from the moment their agreements were
signed.'' 518 U.S. at 910.
The Department's regulatory revisions present a fundamentally
different case. Initially, the Department notes that Justice Souter
stated that the government's regulatory authority was unaffected by the
contracts: ``the agreements [at issue in that case] do not purport to
bind the Congress from enacting regulatory measures.'' 518 U.S. at 881.
Instead, the Court held, the agreements obligated the government to
assume the risk of loss, and thus be liable for damages, if the
regulations were changed. By contrast, the contracts purchased by the
coal mining industry to insure themselves against black lung claims
contain no provision requiring the Department to assume any risk of
loss. Although the Department prescribes the form of such contracts,
and the Black Lung Disability Trust Fund may be considered a
beneficiary of them, these are not contracts between the government and
a private party. Moreover, as reflected in the endorsement authorized
by the Department, Sec. 726.203, the contracts specifically recognize
the possibility that the Act may be amended while the policy is in
force, and place the risk of those amendments on the insurer. See
National Independent Coal Operators Association v. Old Republic
Insurance Company, 544 F. Supp. 520 (W.D. Va. 1982). The Department has
explained above that its rulemaking is fully consistent with, and
authorized by, the provisions of the Black Lung Benefits Act.
Accordingly, the Court's decision in Winstar presents no bar to the
Department's promulgation of regulations, and does not obligate the
Department to pay damages to the insurance industry.
(e) One comment urges the Department to adopt a bright-line test
making all of the revisions applicable only to claims filed after the
final rule becomes effective. In particular, the commenter points to
changes in Part 726 which will unfairly prejudice coal mine operators
that have purchased insurance in compliance with the existing
regulations. As the Department explained in its earlier notice of
proposed rulemaking, the only revisions which will apply to pending
claims are those which clarify the Department's longstanding
interpretation of the Act and the current regulations. 62 FR 3348 (Jan.
22, 1997). Those revisions are not considered retroactive. See Pope v.
Shalala, 998 F.2d 473, 483 (7th Cir. 1993). The Department believes
that they should be applied to all pending claims to ensure the claims'
uniform treatment. Moreover, the Department does not believe that the
changes to Part 726 will result in the imposition of any additional
liability on the part of coal mine operators in compliance with the
Act's insurance requirements.
20 CFR 725.101
(a) Several written comments and hearing statements oppose amending
the definition of "benefits" in Sec. 725.101(a)(6) to include the
cost of the medical examination of the claimant authorized under
Sec. 725.406 and subsidized by the Trust Fund. The opponents suggest
that the amended definition would impose the cost of the examination on
the claimant if he later decides to withdraw the claim or becomes
liable for the repayment of overpaid benefits. The Department
acknowledges the commenters' concerns, but assures them that the cost
of the examination, although a "benefit", cannot be shifted to the
claimant. In the preamble accompanying the proposed revision of
Sec. 725.306, the Department stated it ``will not require reimbursement
of the amount spent on the claimant's complete pulmonary evaluation as
a condition for withdrawing a claim.'' 62 FR 3351 (Jan. 22, 1997).
Similarly, a claimant who must repay overpaid "benefits" is not
liable for reimbursing the Trust Fund for the medical examination. An
overpayment encompasses payments to which the individual is ultimately
not entitled, 20 CFR 725.540, while each applicant for benefits is
entitled by virtue of the Black Lung Benefits Act to the complete
pulmonary examination. 30 U.S.C. 923(b). In addition, Sec. 725.522
contemplates that only payments made pursuant to an initial
determination of eligibility by the district director or pursuant to an
``effective order by a district director, administrative law judge,
Benefits Review Board, or court'' may be treated as an overpayment
pursuant to Sec. 725.540 in the event the claimant is ultimately found
ineligible for benefits. The cost of the initial pulmonary evaluation
is not such a payment. Consequently, the claimant cannot be required to
repay the cost of that examination whatever the outcome of the
adjudication of the claim.
(b) One comment opposes the revised definition of "benefits" in
subsection (a)(6) because it imposes liability for the examination on
the responsible operator if the claimant ultimately secures benefits.
The comment argues that the cost-shifting is not authorized by the
Black Lung Benefits Act. The Department, however, has consistently
taken the position that an operator found liable for the payment of the
claimant's benefits is also liable to the Trust Fund for the cost of
the initial pulmonary evaluation authorized by 30 U.S.C. 923(b). This
requirement is in the current regulations at 20 CFR 725.406(c). The
revision of Sec. 725.101(a)(6) merely makes this language consistent
with Sec. 725.406.
(c) The Department proposes to revise subsection (a)(6) in order to
include a cross-reference to Sec. 725.520(c), which defines the term
"augmented benefits." Because regulations that precede Sec. 725.520,
such as Sec. 725.210, also use the term "augmented benefits," the
Department believes that the parties seeking a definition of that term
should be able to find an appropriate reference in Sec. 725.101.
(d) Three comments support the revised definitions of ``coal
preparation'' (Sec. 725.101(a)(13)) and "miner"
(Sec. 725.101(a)(19)), which exclude coke oven workers from coverage of
the Black Lung Benefits Act.
(e) Two comments oppose the proposed revision of
Sec. 725.101(a)(31), which would exclude certain benefits paid from a
state's general revenues from the definition of ``workers' compensation
law.'' One comment supported the change. The opposing comments broadly
suggest the proposed change would adversely affect the Trust Fund by
making certain state benefits ineligible for offset against federal
benefits, creating uncertainty in benefits funding, and contradicting
the holding in Director, OWCP v. Eastern Associated Coal Corp., 54 F.3d
141 (3d Cir. 1995). The Department disagrees. The Black Lung Benefits
Act requires federal black lung benefits to be offset by any amount of
compensation received under state or
[[Page 54983]]
federal workers' compensation laws for disability or death due to
pneumoconiosis. In Eastern Associated Coal, the Third Circuit held that
the BLBA is ambiguous as to the meaning of a ``workers' compensation
law.'' The Court also held that the Director's long-standing practice
of excluding state-funded benefits from the ambit of ``workers'
compensation law'' was inconsistent with the plain meaning of the
implementing regulations. Finally, the Court suggested the agency ``has
the means and obligation to amend its regulations to provide for [an]
exception'' for state benefits funded through general revenues. 54 F.3d
at 150. The Department has therefore proposed to exercise its
regulatory authority and eliminate any perceived inconsistency between
the agency's position and the black lung program's implementing
regulations. The Department's position is entirely consistent with the
decision in Eastern Associated Coal; the Court held only that the
agency's practice was inconsistent with existing regulations, and not
that it was prohibited by the statute. Moreover, the Court invited the
Department to undertake the present course of action.
(f) One comment opposes the revised definition of "year" in
Sec. 725.101(a)(32) because it includes approved absences from work in
computing the length of time the miner worked for the coal company.
Case law has established the validity of including certain periods of
time when the miner is not working in establishing the duration of the
miner's work relationship with a coal company. Northern Coal Co. v.
Director, OWCP [Pickup], 100 F.3d 871, 876-877 (10th Cir. 1996); Boyd
v. Island Creek Coal Co., 8 Black Lung Rep. 1-458, 1-460 (1986); Verdi
v. Price River Coal Co., 6 Black Lung Rep. 1-1067, 1-1069/1-1070
(1984); cf. Thomas v. BethEnergy Mines, Inc., 21 Black Lung Rep. 1-10,
1-16/1-17 (1997) (upholding inclusion of sick leave in determining
length of miner's employment with operator, but rejecting Director's
position that sick leave cannot be counted in determining whether miner
was "regularly" employed during the year of employment with
operator). No reason for deviating from this precedent has been
offered.
(g) One comment broadly opposes the definition of the term "year"
in subsection (a)(32), but identifies only one specific objection: the
commenter contends that use of the 125-day exposure standard is invalid
because of the reduced incidence of pneumoconiosis in current miners. A
current reduction in the occurrence of pneumoconiosis, assuming that
such a decline has occurred, is not a sufficient basis for revisiting
the exposure standard. The pool of potential claimants who may apply
for benefits under these regulations is not restricted to those
individuals mining coal over the recent past. Consequently, a decline
in the current incidence of the disease does not necessarily undermine
the 125-day standard.
(h) One comment objects to the use of wages, compared to annual
average wage rates, to calculate the miner's employment history for
purposes of determining a "year" of coal mine employment under
subsection (a)(32); two other comments generally support the
definition, but express concern over the undue reliance on Social
Security itemized wage earning records. All three comments emphasize
the potentially inaccurate information contained in the itemized
earnings records. No changes in the proposed definition are necessary
to alleviate these concerns. Section 725.101(a)(32) does not accord
special deference to any particular type of record for determining when
a miner worked or how much he earned during any given period of time.
In any specific case, a party may provide testimony or other evidence
as to the length of coal mine employment, amount of wages, or accuracy
or inaccuracy of any particular record.
(i) The Department is proposing one additional change to subsection
(a)(32). In order to account for leap years, which have 366 days
instead of 365, the Department proposes to use the larger figure in
computing a "year" when one of the days in the period at issue is
February 29.
Subpart B
20 CFR 725.209
The Department proposed a change to Sec. 725.209(a)(2)(ii) in its
initial notice of proposed rulemaking by adding a requirement that a
dependent child who is at least 18 years of age and not a student must
be under a disability which began before the age of 22 for purposes of
augmenting the benefits of a miner or surviving spouse. 62 FR 3390
(Jan. 22, 1997). This proposal changes Sec. 725.209(a)(2)(ii) to
eliminate the age requirement. The change implements the statutory
definition of "dependent," as it pertains to a child. Section 402(a)
of the Black Lung Benefits Act (BLBA) defines a "dependent child" to
mean ``a child as defined in subsection (g) without regard to
subparagraph (2)(B)(ii) thereof[.]'' 30 U.S.C. 902(a)(1). The reference
to section 402(g)(2)(B)(ii) is the statutory requirement that a child
be disabled before the age of 22. By removing the reference to age for
purposes of a dependent child, Congress allowed any disabled child who
meets the remaining statutory criteria to be considered a dependent of
the miner or his widow without regard to when the child's disability
began. A miner or his widow may receive augmented benefits for up to
three dependents. 30 U.S.C. 922(a)(4). The Benefits Review Board has
reached the same conclusion concerning the intended operation of 30
U.S.C. 902(a)(1). See Hite v. Eastern Associated Coal Co., 21 Black
Lung Rep. 1-46 (1997); Wallen v. Director, OWCP, 13 Black Lung Rep. 1-
64 (1989). Finally, the change in the regulation effectuates a
distinction between classes of dependent children drawn by the statute.
In order for a child to establish dependency on a deceased miner as a
condition to receipt of benefits in his own right, the BLBA requires
the "child" to meet all the requirements of 30 U.S.C. 902(g). 30
U.S.C. 922(a)(3). These requirements include a deadline for the onset
of disability: either age 22 or, in the case of a student, before the
individual ceases to be a student. See also Sec. 725.221. A child/
beneficiary therefore must meet the age requirement for disability
while the child/augmentee is relieved of this burden under the BLBA and
the regulations. Hite, 21 Black Lung Rep. at 1-49; Wallen, 13 Black
Lung Rep. at 1-67-68. Accordingly, the proposed version of Sec. 725.209
is revised to reflect the statutory definition of "dependent child"
and the distinction between a child/beneficiary and child/augmentee.
20 CFR 725.223
The Department proposed paragraph (d) in the initial notice of
rulemaking to create a vehicle for reentitling a miner's dependent
brother or sister whose eligibility terminates upon marriage, if that
marriage ends and the individual again meets all the criteria for
entitlement. 62 FR 3393 (Jan. 22, 1997). Upon further consideration,
the Department has concluded that permitting reentitlement in such
circumstances is contrary to longstanding and consistent agency policy.
20 CFR 725.223(c) (DOL regulation); 410.215(c), (d) (SSA regulation).
The only situation in which reentitlement is allowed involves a
surviving spouse or surviving divorced spouse who remarries after the
death of, or divorce from, the miner, but later regains single status
and satisfies the remaining criteria for eligibility. See response to
comments, Sec. 725.213. The Department has declined to extend similar
treatment to children who marry
[[Page 54984]]
because marriage is a permanent bar to their entitlement under the
statute. No reason exists to accord preferential treatment to the
miner's surviving dependent siblings. Once an otherwise eligible
brother or sister marries or remarries, entitlement terminates, and the
marriage operates as a bar to future entitlement. If the brother or
sister is already married when he or she becomes a dependent of the
miner, the fact of marriage does not preclude entitlement if the
brother or sister has not received any amount of support from his or
her spouse. Once support is provided, then the married brother or
sister loses eligibility. In either case, the termination of
entitlement is justified by the reasonable assumption that the
individual will receive financial support from the spouse during the
marriage, and rely on savings or other benefits acquired during the
marriage should it terminate. The Department therefore proposes to
remove paragraph (d) from Sec. 725.223.
Subpart C
20 CFR 725.309
(a) Numerous comments support this proposal, which simply reflects
the nearly unanimous holdings of the federal courts of appeals
affirming the Department's treatment of subsequent claims. The proposal
also brought responses from a number of commenters, however, who
generally oppose allowing claimants to file subsequent claims, and
argue that the Department's proposal would further expand the right to
file subsequent applications. Subsequent applications are filed more
than one year after the denial of a previous claim. They may be awarded
only if the claimant demonstrates that an applicable condition of
entitlement has changed in the interim. As the Department explained in
its initial proposal, the subsequent claims provision represents a
recognition of the progressive nature of pneumoconiosis. See 62 FR
3351-3353 (Jan. 22, 1997).
The limited nature of the Department's proposed revisions cannot be
overemphasized. The Third, Fourth, Sixth, and Eighth Circuits have
adopted the Department's position. Lovilia Coal Co. v. Harvey, 109 F.3d
445 (8th Cir. 1997), cert. denied, 118 S. Ct. 1385 (1998); Lisa Lee
ines v. Director, OWCP, 86 F.3d 1358 (4th Cir. 1996); LaBelle
Processing Co. v. Swarrow, 72 F.3d 308 (3d Cir. 1995); Sharondale Coal
Co. v. Ross, 42 F.3d 993 (6th Cir. 1994). The Seventh Circuit's view is
substantially similar. Peabody Coal Co. v. Spese, 117 F.3d 1001 (1997).
Only the Tenth Circuit has adopted a contrary view. Wyoming Fuel Co. v.
Director, OWCP, 90 F.3d 1502 (10th Cir. 1996). The Department's
proposed regulation thus merely codifies caselaw that is already
applicable to more than 90 percent of the claimants who apply for black
lung benefits. In addition, as discussed earlier in this document, the
Department's revisions will not result in the automatic reopening of
claims, as was required by the Black Lung Benefits Reform Act of 1977,
or the de novo adjudication of claims, as would have been required by
H.R. 2108, the 1994 legislative initiative discussed in more detail
above. The 1977 Reform Act resulted in the reopening of over 100,000
claims. The Department estimated that H.R. 2108 would have resulted in
a substantial number of refilings based on its promise of de novo
adjudication, that is, adjudication without the need to establish that
the miner's condition has changed. By contrast, between January 1, 1982
and July 16, 1998, the Department received only 30,964 claims filed by
claimants who had previously been denied. Because the revised
regulations will offer no assistance to claimants whose condition has
not changed, it is not likely to encourage the filing of a large number
of additional subsequent claims.
Moreover, the Department's experience with subsequent claims
clearly demonstrates the need for allowing miners to file them. Of the
49,971 first-time claims filed by living miners between January 1, 1982
(the date upon which the Black Lung Benefits Amendments of 1981 took
effect) and July 16, 1998, 3,731, or 7.47 percent, were ultimately
awarded. In that same time period, the Department received 30,964
subsequent claims from miners who had previously been denied benefits
under the Act. Of those claims, 3,269, or 10.56 percent, were awarded.
These figures suggest that many miners file applications for benefits
before they are truly disabled. Elsewhere in this reproposal, the
Department has outlined the steps it intends to take in order to
provide claimants with a realistic view of their possible entitlement,
including better initial pulmonary evaluations and better reasoned
explanations of the denial of their claims. As a result of these steps,
the Department hopes that claimants will be able to assess more
accurately the strength of their applications throughout the process.
To automatically deny those who previously filed claims, however, would
unfairly penalize those miners who have truly become totally disabled
due to pneumoconiosis and would deprive them of the benefits to which
they may be entitled.
One commenter suggested that the Department's subsequent claims
provision allows unsuccessful claimants to file multiple times,
resulting in the waste of considerable resources by companies required
to defend against them. The Department's experience with the current
subsequent claims regulation, which has not been substantially changed,
indicates that the provision has not led to widespread misuse.
Approximately 107,000 claims were filed between January 1, 1982 and
July, 1998. Approximately 1,400 of these were from individuals who had
previously been denied benefits three or more times. This represents
only 1.3 percent of the total. While the Department hopes to discourage
filings by individuals who are not totally disabled due to
pneumoconiosis by providing more information about the process to the
potential claimant population, the Department does not believe that a
strict rule requiring the denial of all subsequent claims is
appropriate in a program intended to compensate the victims of a
progressive disease.
(b) The Department's first proposal created a rebuttable
presumption that the miner's physical condition had changed if the
miner proved with new medical evidence one of the applicable conditions
of entitlement. The regulation also included a provision allowing a
miner to establish a serious deterioration in his physical condition
whether or not the presumption was rebutted. The Department now
believes that this regulatory presumption is unnecessary and would lead
to considerable litigation. One commenter suggested its deletion.
Accordingly, the revised proposal eliminates the presumption in favor
of a simple threshold test: If the miner produces new evidence
concerning his physical condition that establishes any of the elements
of entitlement previously resolved against him, he is entitled to
litigate his entitlement to benefits without regard to findings made in
the earlier adjudication. The only exception is an issue resolved
earlier by stipulation or by a failure to contest.
The Department's subsequent claims provision gives full effect to
the Fourth Circuit's decision in Lisa Lee Mines v. Director, OWCP, 86
F.3d 1358 (4th Cir. 1996), cert. denied, 117 S.Ct. 763 (1997). In Lisa
Lee, the en banc Fourth Circuit affirmed an award of benefits on a
subsequent claim despite the operator's objections that the miner
should have been awarded benefits in the prior claim
[[Page 54985]]
based on evidence of complicated pneumoconiosis. The court held that
while the previous denial represented a final adjudication of the
miner's condition at that time, that denial should not bar the miner
from establishing his entitlement to benefits where his condition has
clearly changed. The court's emphasis on accepting the correctness of
the first adjudication, as well as the factual findings underlying that
result, was echoed by Judge Niemeyer in his concurring opinion: ``This
test avoids improper review of the first decision denying benefits.''
86 F.3d at 1365 (Niemeyer, J., concurring).
(c) Several comments argue that the Department has incorrectly
eliminated the requirement in the current regulations that a subsequent
survivor's claim be automatically denied. That requirement is based on
the common-sense premise that a miner's physical condition cannot
change after his death, a premise with which the Department continues
to agree. Thus, where the denial of a prior survivor's claim is based
solely on the survivor's failure to establish that the miner suffered
from pneumoconiosis, that the pneumoconiosis was caused by the miner's
coal mine employment, or that the pneumoconiosis contributed to the
miner's death, the Department agrees that a subsequent survivor's claim
must be denied absent waiver by the liable party. Subsection (d)(3) is
amended to clarify that intent. Where the earlier denial was based in
whole or in part on a finding that is subject to change, however, for
example, that the survivor had remarried, or a child has left school,
it is inconsistent with the basic tenets of issue preclusion to
prohibit that survivor from establishing entitlement to benefits. See
62 FR 3352 (Jan. 22, 1997). Accordingly, the Department has eliminated
the automatic denial of all subsequent survivor's claims, and replaced
it with a more equitable assessment of the survivor's right to assert
entitlement. One comment suggests that allowing waiver of the provision
requiring denial of a survivor's claim is inconsistent with the
Secretary of Labor's fiduciary responsibility toward the Black Lung
Disability Trust Fund. The Department is fully cognizant of its duty to
protect the fund against non-meritorious claims. In exercising its
responsibilities, however, the Department also believes that it should
not deny meritorious claims on technical legal grounds where, for
example, a surviving spouse was unable to obtain legal representation
in the earlier proceeding.
(d) Several comments suggest that section 725.309 is impermissible
in light of the one-year limitation for seeking reconsideration based
on a change in conditions set forth in section 22 of the Longshore and
Harbor Workers' Compensation Act, 33 U.S.C. 922. The Department
disagrees. A section 22 reconsideration request asks that the existing
denial be modified. A subsequent claim, however, does not allow
reopening, or require relitigation, of the existing denial. Instead, it
constitutes a new cause of action adjudicating the miner's entitlement
at a later time. Thus, section 22 is not implicated by the subsequent
claims provision. Moreover, even assuming that section 22 could be read
to preclude subsequent claims under the Longshore and Harbor Workers'
Compensation Act, the Department's authority to depart from the
Longshore Act in order to administer the Black Lung Benefits Act is
well established. Director, OWCP v. National Mines Corp., 554 F.2d
1267, 1274 (4th Cir. 1977). The Department believes that a departure in
this instance is fully justified. Unlike Longshore Act claims, the
majority of which involve discrete, traumatic injuries, all claims
filed under the Black Lung Benefits Act seek compensation for a latent,
progressive disease. Moreover, the Supreme Court has construed the
Longshore Act, in cases involving similar types of conditions, to allow
the entry of nominal benefit awards which may be subject to later and
repeated modification if the employee's condition worsens. Metropolitan
Stevedore Co. v. Rambo, 117 S. Ct. 1953, 1963 (1997). Under the BLBA,
however, entry of a nominal benefit award is not possible. Awards are
permissible only in a case of total disability. Thus, the Department
allows subsequent claims as an acknowledgment that the miner's
condition may worsen.
(e) One comment argues that claimants should not have to relitigate
elements of entitlement that they established in earlier litigation.
For example, if the miner established that he suffers from
pneumoconiosis, but failed to prove that he was totally disabled, he
should not be required to re-prove the existence of the disease in a
subsequent claim. The Department disagrees. Just as the rules of issue
preclusion would not allow a coal mine operator to rely on the miner's
previous inability to prove one element of entitlement when the miner's
condition with respect to another element has changed, those rules also
prohibit a miner from relying on a previous finding which the opposing
party did not have an opportunity to fully litigate. Where a miner's
claim was denied, and the miner did not file an appeal, the party
opposing entitlement had no opportunity to seek to overturn findings
that were favorable to the miner. Consequently, those findings may not
have any preclusive effect.
(f) One comment suggests that the Department should clarify the
date from which benefits are payable in subsequent claims. The date for
commencing payment in subsequent claims is governed by the same rules
applicable to any other claim, see 20 CFR 725.503, with the proviso
that no benefits may be awarded for any period prior to the date on
which the order denying the prior claim became final. This rule,
spelled out in subsection (d)(5), gives effect to the language of the
Fourth Circuit in Lisa Lee, that parties ``must accept the correctness
of [the denial's] legal conclusion--[the claimant] was not eligible for
benefits at that time--and that determination is as off-limits to
criticism by the respondent as by the claimant.'' 86 F.3d at 1361.
(g) One comment argues that the Department's treatment of
subsequent claims violates section 413(d) of the Act, 30 U.S.C. 923(d),
which allows working miners who have been determined eligible for
benefits to receive those benefits only if they terminate their
employment within one year after the determination becomes final. The
Department disagrees. Section 725.504, to which only technical changes
were proposed, see 62 FR 3341 (Jan. 22, 1997), implements the Act's
working miner provisions. The regulation currently allows individuals
whose claims are denied as a result of continued coal mine employment
for more than one year to file new applications after that employment
ends. This regulation was first promulgated (as Sec. 725.503A) in 1978,
see 43 FR 36806 (Aug. 18, 1978), and the Department sees no need to
revise it in light of the treatment afforded subsequent claims filed by
individuals who do not continue to work. In neither case would the
factfinder be permitted to look behind the denial of the earlier
application. Moreover, miners who continue to work, and thus continue
to be exposed to coal mine dust, present an even more compelling
justification for being allowed to file subsequent claims than in the
case of non-working miners.
20 CFR 725.310
(a) The Department is re-proposing section 725.310 in order to make
two specific changes. The first, set forth in the third and fourth
sentences of
[[Page 54986]]
subsection (d), would allow the Department or responsible operator, as
appropriate, to recoup amounts paid erroneously to a claimant where the
claimant is at fault in incurring the overpayment. For example, an
overpayment may occur if a claimant in award status fails to timely
notify the Department or responsible operator of an event requiring a
reduction in the amount of monthly benefits paid. Such events might
include an award of state workers' compensation benefits, a child's
withdrawal from an educational institution, or a surviving spouse's
remarriage. The second change, set forth in the fifth and sixth
sentences of subsection (d), conforms the language of the regulation to
the Department's intention, set forth in the Department's earlier
proposal at 62 FR 3354 (Jan. 22, 1997). By making this change, the
Department recognizes that those claimants whose awards have become
final have a heightened expectation that they will be able to keep the
monthly benefits they receive. Thus, if a final award is terminated
after modification, those benefits paid pursuant to the award before
modification commenced are not subject to recoupment. By contrast,
those claimants whose awards are modified to denials while still on
appeal may be the subject of recoupment proceedings. The two sentences
at the end of subsection (d), as originally proposed, have been further
divided in order to clarify the regulation's meaning.
(b) One comment objects that the revised regulation would prohibit
an administrative law judge from denying a claimant's request for
modification based on the claimant's failure to present any additional
evidence. This comment is apparently based on the mistaken belief that
the current regulations authorize such a denial. However, it is clear
that any party has the right to seek modification under section 22 of
the Longshore Act based ``merely on further reflection on the evidence
initially submitted.'' O'Keeffe v. Aerojet-General Shipyards, Inc., 92
S. Ct. 405, 407 (1971). The Department's current black lung regulations
do not depart from this authority. Thus, current law prohibits an ALJ
from denying a claimant's modification request based on a claimant's
failure to submit new evidence. It is also well-established that a
claimant who requests modification, whether or not he submits new
evidence, is entitled to a de novo adjudication of his entitlement to
benefits and, if requested, to a formal hearing before an
administrative law judge. Robbins v. Cyprus Cumberland Coal Co., 146
F.3d 425, 430 (6th Cir. 1998); Cunningham v. Island Creek Coal Co., 144
F.3d 388, 390 (6th Cir. 1998). The revisions to subsection (c) merely
restate these basic holdings. A similar comment suggests that the
changes to subsection (c) create opportunities for claimants to file
repeated requests for modification and thus avoid the one-year time
limitation. Current law, however, does not permit a fact-finder to deny
a modification request simply because a previous modification request
has been denied. The one-year time limitation, in fact, commences to
run anew when an earlier denial has become final. Subsection (c) does
not alter the current state of the law.
(c) Two comments argue that the district director should not be
permitted to initiate modification in any case in which a coal mine
operator is liable for the payment of benefits to the claimant. The
Department does not agree that such a limitation would be appropriate.
Although coal mine operators are generally able to represent their own
interests effectively, and thus to request modification when they
believe it appropriate, section 22 of the Longshore Act specifically
authorizes the district director to initiate modification on his own
initiative. The Department sees no need to modify this Longshore Act
provision in order to properly administer the Black Lung Benefits Act.
In addition, there exists a group of awards in which a coal mine
operator is nominally liable for the payment of benefits but, because
of bankruptcy, dissolution, or other events, can no longer pay
benefits. In such cases, the Trust Fund, pursuant to 26 U.S.C. 9501(d),
must assume responsibility for paying benefits. The limitation urged by
this comment would effectively prohibit the Department from initiating
modification in those cases, a limitation that the Department considers
unacceptable. For example, the Department must remain free to adjust
the terms of an award of benefits to reflect changes in the number and
status of the claimant's dependents, such as when a previously eligible
child becomes ineligible for augmented benefits. Another comment
suggests that parties should be able to initiate modification
proceedings before an administrative law judge. The Department
disagrees. Section 22 explicitly requires that modification proceedings
under the LHWCA be commenced before the district director, and there is
no need to alter this provision to meet the needs of the black lung
benefits program. In fact, filing a modification request before the
district director allows him to administratively process the request,
develop the appropriate evidence, and attempt an informal resolution of
the claim. See Saginaw Mining Co. v. Mazzulli, 818 F.2d 1278, 1282 (6th
Cir.1987) (discussing the policy reasons supporting the regulation
requiring modification proceedings to be commenced before the district
director).
(d) The Department has extensively revised Sec. 725.414 in order to
define more precisely the quantitative limits on documentary medical
evidence that the parties may submit. See explanation to Sec. 725.414.
Subsection (b) of Sec. 725.310, which limits the amount of additional
documentary medical evidence that parties may submit in cases involving
requests for modification, contained language similar to the language
deleted from Sec. 725.414. In order to clarify the amount of evidence
admissible in a modification case, the Department has made a
corresponding change to subsection (b). Each party will be entitled to
submit one additional chest X-ray interpretation, pulmonary function
test, arterial blood gas study, and medical report. The opposing party
may introduce one opposing interpretation of each objective test, in
accordance with the rules set forth in Sec. 725.414. Finally, the party
that originally offered the evidence may seek to rehabilitate its
evidence by introducing an additional statement from the physician who
administered the test.
Subpart D
20 CFR 725.351
Section 725.351 was not among the provisions which the Department
opened for comment in its previous notice of proposed rulemaking, 62 FR
3341 (Jan. 22, 1997), and the Department did not receive any comments
specifically directed to this section. In the course of reviewing the
procedures to be used in the identification and notification of
potentially liable operators, however, the Department has identified
one aspect of this regulation which might benefit from change. The
Department's proposal requires the submission to the district director
of all evidence relevant to the identification of the liable
responsible operator. Secs. 725.408, 725.414(b). The Department must
have access to this evidence while a claim is pending before the
district director because it will be unable to identify additional
responsible operators after a case is referred to the Office of
Administrative Law Judges, Sec. 725.407(d). It will therefore be the
[[Page 54987]]
district director's responsibility to develop the evidence necessary to
meet the Director's evidentiary burden under the responsible operator
regulations, Subpart G of Part 725.
In order to allow district directors to exercise their
responsibilities more efficiently, and in a manner which does not
unduly delay the adjudication of a claimant's entitlement, the
Department proposes to eliminate the requirement that district
directors obtain approval from the Director, OWCP, prior to the
issuance and enforcement of subpoenas duces tecum. The authority to
issue subpoenas requiring the production of documents is a well-
recognized investigative tool of administrative agencies, see Comment,
``Administrative Subpoenas for Private Financial Records: What
Protection for Privacy does the Fourth Amendment Afford?,'' 1996 Wisc.
L. Rev. 1075, 1076-77 (1996), and the Department believes that the
current additional layer of internal review is unnecessary. Instead,
the Department fully expects that the district directors, working in
cooperation with the appropriate officials of the Office of the
Solicitor, will issue subpoenas that comply with the standards
established by the Supreme Court in United States v. Morton Salt Co.,
338 U.S. 632, 652 (1950). Those standards require that the information
sought must be relevant to the district director's investigation and
the subpoena must not be "too indefinite." The latter requirement
ensures that the district director's request not be excessively
burdensome, i.e., that compliance does not threaten the normal
operation of the recipient's business. See EEOC v. Bay Shipbuilding
Corp., 668 F.2d 304, 313 (7th Cir. 1981).
20 CFR 725.367
(a) Several comments urge the Department to allow successful
claimants' attorneys to collect reasonable fees for all necessary work
they perform in a case rather than only the work performed after the
liable operator first contested the claimant's eligibility or the fund
first denied the claim. The Department agrees that such a change is
appropriate. Since the revised version of section 725.367 was proposed
on January 22, 1997, the Department has spent considerable time
weighing how to adequately compensate claimants' attorneys under the
Black Lung Benefits Act. The issue was raised in part by the Benefits
Review Board's June 30, 1997 decision in Jackson v. Jewell Ridge Coal
Corp., 21 Black Lung Rep. (MB) 1-27 (en banc). In Jackson, the Board,
by a 3-2 majority, held that successful claimants' attorneys in black
lung cases are entitled to fees for all the work they perform,
regardless of whether it is performed before or after the employer
controverts the claimant's entitlement. The Fourth Circuit subsequently
affirmed the Board's decision but disavowed its reasoning. Clinchfield
Coal Co. v. Harris, 149 F.3d 407 (4th Cir. 1998). Faced with three
seemingly reasonable interpretations of the statutory language and
regulations, the Fourth Circuit deferred to the existing interpretation
of the Director, Office of Workers' Compensation Programs. Under that
interpretation, a claimant's attorney's fees are limited to those
services performed after the agency's initial denial of the claim or
the operator's rejection of the agency's initial approval. The court
noted that the Director's interpretation was based on the agency's
reasonable identification of the point in time at which a claimant
would have reason to seek the assistance of an attorney. 149 F.3d at
310.
The evidentiary limitations now proposed by the Department,
however, significantly alter the circumstances under which a claimant
may be expected to seek representation. For example, although the
Department now proposes the elimination of the requirement in the
initial notice of proposed rulemaking that all medical evidence be
submitted while a case is pending before the district director, these
proposed regulations nevertheless still limit the amount of evidence
each party may submit. Attorneys could play an important role in
ensuring that this evidence, including evidence submitted before the
Department's initial approval or denial of the claim for benefits,
complies with the Department's quality standards and effectively
presents the claimant's case. In addition, the Department is proposing
significant changes in connection with the complete pulmonary
evaluation afforded claimants under Sec. 413(b) of the Act. As detailed
in the explanation of these changes at Sec. 725.406, the Department
intends to send to the claimant a copy of the results of the objective
tests obtained in the Department's evaluation, so that the claimant may
in turn give those results to his treating physician. Obviously, the
choice of whether or not to submit a report from that physician is
important, in light of the regulations' evidentiary limitations. The
Department intends to recommend that claimants seek legal advice before
making that choice.
In light of the significant changes proposed by the Department, the
commenters' suggestion is well-taken. Allowing successful attorneys to
collect reasonable fees for all of the necessary work they perform,
rather than only the work performed after creation of an adversarial
relationship, hopefully will encourage early attorney involvement in
these cases. Because such involvement can only improve the quality of
evidence submitted, and thus the quality of decision-making in all
claims for benefits, the Department proposes to amend section 725.367
to accomplish this result. Although the creation of an adversarial
relationship and the ultimately successful prosecution of a claim are
still necessary to trigger employer or fund liability for attorney's
fees, the date on which the adversarial relationship commenced will no
longer serve as the starting point for such liability.
(b) One comment suggests that lay representatives should be
entitled to collect fees from responsible coal mine operators or the
fund. The Department explained in 1978, when it rejected the same
suggestion, that the statute does not require operators to pay the fees
of representatives who are not attorneys. 43 FR 36789 (Aug. 18, 1978).
It is the Department's intention in this regulation to make the trust
fund's attorney's fee liability coextensive with a liable operator's,
62 FR 3354 (Jan. 22, 1997).
(c) One comment suggests that the Department erred in preferring
the Third Circuit's decision in Bethenergy Mines v. Director, OWCP, 854
F.2d 632 (3d Cir. 1988) over the Sixth Circuit's decisions in Director,
OWCP v. Bivens, 757 F.2d 781 (6th Cir. 1985) and Director, OWCP v.
Poyner, 810 F.2d 99 (6th Cir. 1987). The Department's proposal,
however, reflects no such preference. Both Bivens and Poyner stand for
the proposition that the fund is liable for attorney's fees only when
the Director, OWCP, unsuccessfully contests the claimant's entitlement
to benefits. In Bethenergy, the Third Circuit held that a coal mine
operator became liable for the payment of attorney's fees when it
failed to accept liability for the claimant's entitlement within 30
days of the Department's initial finding that the claimant was not
eligible for benefits. The Department's proposal is consistent with all
three decisions. As in Poyner and Bivens, the regulations allow fees to
be awarded against the trust fund only if the Department has denied the
claimant's eligibility. In addition, the revisions follow Bethenergy in
imposing liability on employers based either on their failure to
respond to the Department's initial finding or their contest of it,
whether or not the Department finds that the claimant is eligible for
benefits.
[[Page 54988]]
In each case, the proposal allows the responsible party time to collect
and evaluate medical evidence before determining whether to create the
type of adversarial relationship that would result in liability for
attorney's fees if the claimant ultimately proves successful.
(d) One comment states that the Department has ignored Supreme
Court case law governing attorney's fee liability. The comment contains
no citation to specific precedent and no further explanation. This
sparse comment affords the Department an insufficient basis for
altering its original proposal.
Subpart E
20 CFR 725.403
Section 725.403 was not among the regulations which the Department
opened for comment in its previous notice of proposed rulemaking, 62 FR
3341 (Jan. 22, 1997). The regulation is applicable only to claims filed
under section 415 of the Black Lung Benefits Act, 30 U.S.C. 925,
between July 1 and December 31, 1973. Such claims were filed with the
Department of Health, Education, and Welfare, but administered by the
Department of Labor. Section 413(c) of the Act, 30 U.S.C. 923(c),
provides that no benefits could be paid on any claim filed on or before
December 31, 1973 unless the miner filed a claim for benefits under the
applicable state workers' compensation law. Section 725.403 implemented
this prohibition for purposes of section 415 claims. Because the
deadline for filing section 415 claims expired over 25 years ago, the
Department proposes to delete section 725.403. The Department does not
intend to alter the rules applicable to any section 415 claim that may
still be in litigation, and section 725.403 will remain applicable to
any such claim. Parties interested in reviewing section 725.403 may
consult earlier editions of the Code of Federal Regulations or the
Federal Register in which the regulation was originally published. The
Department invites comment on whether section 725.403 should be
retained in the Code of Federal Regulations.
20 CFR 725.406
(a) The Department received a number of comments, from coal mine
operators and miners alike, criticizing its initial proposal for
providing claimants with the complete pulmonary evaluation required by
30 U.S.C. 923(b). Section 413(b) of the Act, 30 U.S.C. 923(b), requires
the Department to afford each miner who applies for benefits an
opportunity to substantiate his claim by means of a complete pulmonary
evaluation. Under the Department's original proposal, a miner could
either be examined by a physician selected by the Department or by a
physician of his choosing. If the miner selected the physician,
however, the report of that examination would count as one of the two
pulmonary evaluations the miner was entitled to submit into evidence.
Sec. 725.414.
One comment suggested that the Department's proposal, in
combination with the proposed limits on the quantity of documentary
medical evidence each party may submit, would interfere with a miner's
statutory right to have a complete pulmonary evaluation performed by a
physician of his choice. Many miners, the commenter argued, would make
a selection of the physician to perform the examination without the
benefit of counsel, and would be able to submit only one additional
medical report when they did secure counsel. Another comment suggested
that the responsible operator be permitted to choose the physician,
while a third comment suggested that the Department take steps to
ensure that the facilities and physicians it uses to perform the
complete pulmonary evaluation are impartial and of the highest quality.
The Department does not agree that the Black Lung Benefits Act
guarantees claimants the right to have the Department pay for a
pulmonary evaluation performed by a physician selected by the claimant.
The statute obligates the Department only to provide a miner who
applies for benefits ``an opportunity to substantiate his or her claim
by means of a complete pulmonary evaluation.'' 30 U.S.C. 923(b). In the
past, when the regulations allowed parties to submit unlimited amounts
of evidence in claims, the Department did allow miners to request a
specific physician or facility to perform the complete pulmonary
evaluation and to have the examination and/or testing done there as
long as the miner's request was approved by the district director. 20
CFR 725.406(a).
The Department's proposal, however, now sets forth limitations on
the quantity of evidence each side may submit. As a result, allowing a
claimant to choose the physician to perform the initial pulmonary
evaluation without the benefit of counsel could have an adverse effect
on his case. Such a claimant might not obtain the best quality report,
and would be able to submit only one more. The Department has
considered a number of options to address this problem, and believes
that the purposes of the Black Lung Benefits Act will best be served if
the complete pulmonary evaluation authorized by 30 U.S.C. 923(b) is
performed by an impartial and highly qualified physician, a solution
proposed by one of the commenters. The Department will therefore
maintain a list of physicians and facilities authorized to perform
pulmonary evaluations. The Department will provide each miner with a
list of authorized physicians and facilities in the state of the
miner's residence as well as the states contiguous to that state. For
example, a miner living in Ohio may choose from among authorized
physicians and facilities in Ohio, Pennsylvania, West Virginia,
Kentucky, Indiana, and Michigan. The Department will further inform the
miner that the designated responsible operator may require him to
travel 100 miles, or a distance comparable to the distance traveled for
the section 413(b) examination, whichever is greater, in order to
submit to additional medical examinations and testing. See discussion
accompanying Sec. 725.414.
Another suggestion, exempting the complete pulmonary evaluation
performed by a doctor of the claimant's choosing from the evidentiary
limitations, would be unfair to the party opposing entitlement. In that
case, the claimant would effectively have the opportunity to submit
three medical opinions, while the operator or fund would be limited to
two. The Department also does not believe that it would be appropriate,
as one commenter suggests, to allow the responsible operator to select
the physician or facility. The purpose of the section 413(b)
examination is to provide the claimant with an opportunity to have his
physical condition assessed in a non-adversarial setting in an attempt
to substantiate his application for benefits.
Using a smaller group of physicians to perform the complete
pulmonary evaluation will also allow the Department to meet one of its
primary goals in the initial processing stage: providing applicants
with the best respiratory and pulmonary evaluation possible. A thorough
examination, performed in compliance with the applicable quality
standards, will provide each claimant with a realistic appraisal of his
condition and will also provide a sound evidentiary basis for the
district director's initial finding. Developing the best quality
medical evidence possible will benefit all the parties. The Department
intends therefore to develop more rigorous standards for physicians who
perform complete pulmonary evaluations at the
[[Page 54989]]
Department's request. These standards may include: (1) The physician
should be qualified in internal or pulmonary medicine so that he is
better able to analyze respiratory and pulmonary conditions (a request
of one commenter); (2) the facility must be able to perform each of the
tests that the Department considers appropriate to an inquiry into a
miner's respiratory or pulmonary condition, see Sec. 718.104; (3) the
physician must be able to schedule the claimant promptly for a
pulmonary evaluation; (4) the physician must be able to produce a
timely report, which includes a comprehensive narrative addressing each
of the elements of entitlement; and (5) the physician must make himself
available to answer follow-up questions from the district director, and
must be willing to explain and defend his conclusions upon questioning
by opposing parties. The Department specifically seeks comment as to
these and any other standards which may be used to select physicians
and facilities to perform complete pulmonary evaluations. The
Department intends to consider all suggestions carefully, with the goal
of improving the quality and credibility of the ensuing reports. A list
of the standards ultimately selected will be included in the Black Lung
Program Manual prepared and used by the Department in its
administration of the program. This document is open to the public and
is available in each district office. Finally, in order to ensure a
pool of physicians who meet these high standards, the Department
intends to re-evaluate the fees that it pays physicians, both to
perform and explain the results of the pulmonary evaluation and to
participate in depositions and/or other forms of cross-examination. The
Department intends to provide physicians with compensation at the rates
prevailing in their communities for performing similar services.
Information available to the Department, for example, indicates that,
as of June, 1999, the West Virginia Occupational Pneumoconiosis Board
paid facilities $270.43 per claimant for performing pulmonary testing,
and paid physicians $300 per hour for testifying before administrative
law judges. The survey of clinics and facilities which the Department
will conduct while this notice is open for public comment will also
solicit information on the fees needed to attract highly qualified
physicians to perform the testing and evaluation required by the
Department.
The Department recognizes that this proposed revision would
significantly change the manner in which it administers the complete
pulmonary evaluation required by the Black Lung Benefits Act. By
raising the quality of these evaluations, the Department hopes to
provide each miner with the best possible medical assessment of his
respiratory and pulmonary condition early in the processing of his
application. Where a miner meets the Department's eligibility
standards, the higher quality evidence produced by these evaluations
will further Congress's intent that miners be given an opportunity to
substantiate their claims. In the case of miners who do not meet those
standards, the increased credibility of the initial pulmonary
evaluation may reduce litigation before the Office of Administrative
Law Judges, the Benefits Review Board, and the federal appellate
courts.
The Department is aware of difficulties that claimants may
encounter in generating legally sufficient medical evidence in support
of their applications. Two commenters state that claimants must be
given the right to select the physician who performs the complete
pulmonary evaluation because they often cannot afford to obtain their
own medical evidence. Developing medical evidence relevant to the
evaluation of a claimant's respiratory and pulmonary condition,
including the objective medical testing required by the Department's
quality standards, Sec. 718.104, can involve costs that are beyond the
reach of some claimants. Accordingly, the Department proposes to add a
provision (subsection (d)) requiring the district director to inform
the claimant that he may have the results of the Department's initial
objective testing sent to his treating physician for use in the
preparation of a medical report that complies with the Department's
quality standards. Such objective test results would include a chest X-
ray reading, Sec. 718.104(a)(5), the results of a pulmonary function
test, Sec. 718.104(a)(1), and the results of an electrocardiogram,
blood gas studies, and other blood analyses, if conducted,
Sec. 718.104(b). In addition, the district director will inform the
claimant that, if submitted, a report from his treating physician will
count as one of the two reports that he is entitled to submit under
Sec. 725.414, and that he may wish to seek advice, from a lawyer or
other qualified representative, before requesting his treating
physician to supply such a report. By providing the miner's treating
physician with the results of objective testing that the miner might
not otherwise be able to obtain, the Department will assist claimants
who may not be able to afford to pay for a complete pulmonary
evaluation on their own.
(b) Two commenters state that the Department should impose
limitations on the district director's ability to clarify ``unresolved
medical issues'' under subsection (e). Both suggest that the district
director should be required to ask the physician who performed the
complete pulmonary evaluation whether he is aware of unresolved issues,
and both commenters also object to any attempt on the part of the
district director to question the credibility of the medical evidence
obtained as part of the complete pulmonary evaluation. The Department
does not agree. District directors must be allowed considerable
discretion in fulfilling their responsibility to develop the medical
evidence relevant to the claimant's respiratory and pulmonary
condition. They must develop complete evidence of the best possible
quality to allow them an adequate evidentiary basis to determine
whether the claimant is initially entitled to benefits. Limiting
district director discretion in the manner suggested by the commenters
could result in evaluating a miner's entitlement with medical evidence
that is neither complete nor credible. If the district director selects
a different physician or facility to re-examine the miner under
subsection (e), however, he will be limited to selecting that physician
or facility from the same list available to the claimant. The district
director may use a physician who is not on the approved list only under
subsection (c), which allows the district director to seek a review of
objective testing. For example, this provision allows a district
director to have a chest X-ray reread by a qualified radiologist who
meets the requirements for a "B" reader, see 20 CFR
718.202(a)(1)(ii)(E), but who is not qualified to perform a complete
pulmonary evaluation. The Department also notes that the district
director's use of the authority granted by subsection (e) should
decrease under the revisions proposed in this notice. Under this
proposal, the district director will be seeking an initial evaluation
from a qualified physician with the ability to perform a complete
evaluation in a timely manner, and likely will not have to seek a miner
reexamination as provided by subsection (e). Finally, the Department
has added language to subsection (e) to clarify that any additional
report obtained by the district director shall not count against the
limits on medical evidence imposed on parties other than the Director
by Sec. 725.414. Instead, where the district director requests merely
that the
[[Page 54990]]
physician supplement his original report, the supplement shall be
considered a part of that original report. Where the district director
orders additional tests, however, the previous tests may not be
admitted into the record at the hearing.
(c) Two commenters object to the contents of subsection (d), as
originally proposed, now in subsection (c), which outlines the
Department's obligation to evaluate each examination and objective test
performed as part of the Department's section 413(b) pulmonary
evaluation. The subsection allows the Department to determine whether
all parts of the section 413(b) examination are in substantial
compliance with the Department's quality standards. The Department's
original proposal authorized the district director to seek additional
tests where substantial compliance was lacking, except where the
deficiencies in the testing were the result of a lack of effort on the
part of the miner. The commenters argue that a miner whose test is
considered invalid due to a lack of effort should be given an
additional opportunity to obtain satisfactory results. The Department
agrees. A number of factors may influence a miner's lack of effort on
objective testing, including a failure to fully understand the test
procedures. Accordingly, the Department proposes to revise this
subsection to afford such miners one additional opportunity to produce
results in compliance with the quality standards.
(d) Several comments argue that the Department should not provide
complete pulmonary evaluations if the claim represents a request for
modification or a subsequent claim. The Department does not provide an
additional pulmonary evaluation if a claim is filed within one year of
the date on which the claimant's previous application was finally
denied. In such cases, the application is treated as a request for
modification, see Fireman's Fund Insurance Co. v. Bergeron, 493 F.2d
545, 547 (5th Cir.1974), and has the effect of extending the processing
and adjudication of the original claim. The Department has already
satisfied its responsibilities under section 413(b) with respect to
that claim, and does not provide an additional evaluation. By contrast,
a subsequent claim is an entirely new assertion of entitlement to
benefits, which covers a later period of time and is limited only by
the requirement that the parties must accept as final the outcome of
any earlier claims filed by the claimant. In such a case, the
Department believes that section 413(b) requires that the claimant
receive a new evaluation of his respiratory and pulmonary condition.
(e) The Department has made several technical changes to the
language of proposed subsection (e) to make that provision easier to
read.
20 CFR 725.407
(a) The Department has proposed to revise section 725.409 to
require administrative law judges to remand cases in which they reverse
a district director's determination that a claim should be denied by
reason of abandonment. Because these cases will be returned to the
district director for further administrative processing, the Department
has revised section 725.407(d) to ensure that the district director
retains the authority to notify additional potentially liable operators
under such circumstances. Absent this revision, subsection (d) could
have been read to prohibit further notification of operators on remand.
(b) One comment suggests that the Department provide guidelines
limiting the circumstances under which it can identify more than one
potentially liable operator in a claim. The commenter questions the
Department's need to name multiple potentially liable operators in
every case, citing the increased litigation costs which will be
incurred by the operators named. The Department does not intend to name
multiple operators in every case. The Department also does not believe,
however, that guidelines are appropriate. A dispute over the identity
of a liable responsible operator may present a variety of issues, such
as the financial assets of a miner's employers, whether the claimant
was employed as "miner," and the consequences of various successor
operator transactions. The Department's purpose is to ensure that
liability for a miner's black lung benefits is borne by a miner's
previous employer to the maximum extent possible. In light of the wide
range of potential issues surrounding the naming of a responsible
operator, the Department does not believe that guidelines are feasible.
(c) One comment supports this proposal, provided that when multiple
potentially liable operators are named, they are collectively subject
to the same limits on the quantity of documentary medical evidence as a
single operator may submit. The Department has retained and applied the
same limitation on the amount of documentary medical evidence that may
be submitted in cases involving either one or multiple potentially
liable operators. Sec. 725.414(a)(3)(i), (ii). Two other comments offer
similar support for the Department's proposal.
20 CFR 725.408
(a) Several comments suggest that the time allowed for submitting
evidence regarding the identity of the responsible operator should be
expanded, and that the Department should incorporate some provision for
submitting later discovered evidence. Another comment similarly argues
that the time frames in the proposed rules are unrealistic in light of
the difficulties in obtaining necessary evidence. The comment points
out that by the time miners file applications for benefits, their
former employers may no longer be in operation, and necessary personnel
records may have been lost, destroyed, or put into storage. At the
Washington, D.C. hearing, representatives of the insurance and claims
servicing industries suggested that the Department needed to provide
more time, perhaps up to a year, within which to develop this evidence.
Transcript, Hearing on Proposed Changes to the Black Lung Program
Regulations (July 22, 1997), pp. 190 (testimony of Margo Hoovel), 193
(testimony of Betsy Sellers).
The Department appreciates the difficulty which may be faced by the
insurance and claims servicing industries in developing employment
information. Accordingly, the Department has extended the time under
Sec. 725.408 within which an operator must submit evidence from 60 days
to 90 days following its receipt of notice of a claim pursuant to
Sec. 725.407. Because the Department hopes to streamline the processing
and adjudication of claims for benefits under the Act, the Department
declines to make this period longer. A longer time period could result
in significant delays in the adjudication of an applicant's entitlement
to benefits. Moreover, many applications for benefits under the Act are
filed within a relatively short period of time after the miner leaves
coal mine employment. In fact, one comment received on behalf of
several coal companies indicated that the 60-day time limitation was
inadequate only in the minority of cases. Finally, in cases in which
even the 90-day period may not afford a potentially liable operator
sufficient time to obtain employment evidence, this time period may be
extended for good cause pursuant to the general authority for
extensions of time contained in proposed Sec. 725.423.
(b) One comment objects to the Department's proposal on the ground
that it would require operator development of evidence in non-
[[Page 54991]]
meritorious claims. The Department recognizes that coal mine operators
may currently ignore most claims of which they receive notice, because
many claimants do not proceed after receiving an initial denial of
benefits. The Department has been severely handicapped by this
practice, however, because it did not know operators' positions with
respect to their potential liability for benefits in cases that did
proceed, and the Department was therefore unable to develop responsive
evidence. See 62 FR 3355-3356 (Jan. 22, 1997) (discussing the proposed
revision of section 725.408 set forth in the Department's previous
notice of proposed rulemaking). The Department does not believe that it
places an undue burden on potentially liable operators to request
certain information at this early stage. The proposal would require
them to submit only information regarding their status as a coal mine
operator, their employment of the miner and their financial capacity to
pay benefits. Contrary to the understanding of some commenters,
information relevant to the identity of other potentially liable
responsible operators need not be developed until after the issuance of
an initial finding of the claimant's eligibility or, if the district
director finds that the claimant is not eligible for benefits, after
the claimant indicates his dissatisfaction with that result.
Consequently, the Department does not believe that requiring the
submission of a limited amount of evidence in every case would
significantly increase the burden on coal mine operators.
(c) Several comments suggest that the Department provide a
bifurcated hearing process to allow administrative law judges to
resolve responsible operator issues prior to hearing the merits of
entitlement. Although a bifurcated hearing would produce initial fact-
finding on the issue, the Department cannot eliminate the possibility
that an aggrieved party might appeal the ALJ's decision to the Benefits
Review Board and the appropriate court of appeals. If the regulations
authorized an immediate appeal of the responsible operator issue, there
would be a substantial likelihood of significant delay in the
adjudication of the claimant's entitlement. If, on the other hand, coal
mine operators could appeal their responsible operator status only
after an award of benefits, the proposed suggestion would not
accomplish its purpose; the Department would still be required to keep
each potentially liable operator as a party to the case to protect the
Black Lung Disability Trust Fund in the event the liability
determination was overturned on appeal. The Department thus cannot
fashion a process which bifurcates the issues of liability and
entitlement, but nevertheless serves the Department's purpose of
ensuring a prompt adjudication of claimant entitlement involving all
potentially liable parties.
20 CFR 725.409
(a) Several comments argue that the penalty for a claimant's
failure to attend an informal conference without good cause, denial of
the claim, is disproportionately harsh in comparison with the penalty
imposed on an employer, waiver of the right to contest potential
liability for an award. See Sec. 725.416(c). The Department agrees that
the proposed regulation may impose severe consequences on a claimant
who fails to attend a scheduled informal conference without good cause.
Unlike the situation involving potentially liable operators, however,
the statute constrains the Department's ability to impose lesser
sanctions on claimants. Requiring an operator to concede one of the
issues being contested, such as its status as a responsible operator,
limits that operator's ability to contest the claim without entirely
foreclosing it. Requiring a claimant to concede an issue, however, is
usually tantamount to a denial of benefits. The Department believes
that a denial by reason of abandonment represents the only valid
sanction for a claimant's failure to participate at each stage of the
claims adjudication process, including the informal conference.
The Department could adjust the disproportionate effect of the
penalty by imposing an equally severe sanction on an employer who fails
to attend an informal conference without good cause. In general,
however, the Department would prefer not to finally resolve a claim for
benefits based solely on a party's failure to attend an informal
conference. Where such a sanction is the only one available, as is the
case with claimants, the Department has no alternative. In order to
mitigate the disparity, however, and in recognition of the fact that,
as several commenters point out, most claimants are unrepresented at
this point in the proceedings, the Department proposes to add a new
subsection, requiring the district director to affirmatively request
that the claimant explain why he failed to attend the conference, and
to evaluate the claimant's explanation in light of the claimant's age,
education, and health as well as the distance of the conference from
his residence. Elsewhere in this proposal, see proposed revisions to
Sec. 725.416, the Department has further required the district director
to explain why he believes that an informal conference would assist in
the voluntary resolution of issues in the case. The Department hopes
that these revisions will lead to a better understanding of the
informal conference process on the part of all parties, and that
unjustified absences will be unusual.
(b) One comment urges that, in any case in which an administrative
law judge finds that the district director erred in denying the claim
by reason of abandonment, he should have the discretion to proceed to
adjudicate the merits of the claimant's entitlement. The Department
does not agree. A claim may be denied by reason of abandonment at
several stages during the initial processing of that claim. For
example, a claimant's unjustified failure to attend the required
medical examination scheduled by the Department may result in a denial
by reason of abandonment. At this stage, none of the evidence regarding
issues such as potential operator liability would be in the
administrative record, and it would be inappropriate for the
administrative law judge to adjudicate the claim on its merits. Even
when administrative processing is substantially complete before
issuance of a denial by reason of abandonment, such as when a claimant
refuses to attend an informal conference, a conference may nevertheless
be appropriate. For example, the conference provides the district
director with a final opportunity to question the claimant concerning
his coal mine employment, and thus to ensure that all potentially
liable operators are identified before the case is referred for a
formal hearing on the merits. A conference also allows the district
director to ensure that the claimant understands the requirements for
establishing his entitlement to benefits. Consequently, the Department
has added a sentence to subsection (c) to clarify the intent of the
regulation and require that an administrative law judge remand a claim
to a district director even if he finds that the district director
erred in denying the claim by reason of abandonment.
(c) One comment suggests that the proposal will result in the
filing of additional claims by applicants whose previous claims were
denied by reason of abandonment. The Department does not believe that
authorizing the dismissal of a claim based on the applicant's unexcused
failure to attend an informal conference will result in a significant
number of additional filings. In the Department's experience, the vast
majority of informal conferences are attended by representatives of
both parties. As a result, the authority set
[[Page 54992]]
forth in this section is not apt to be invoked frequently. The
Department also believes, however, that the consequences of a
claimant's unexcused failure to attend should be clearly explained. The
commenter also states that the dismissal of a claim imposes additional
burdens and costs on parties to the claim other than the claimant.
Although this observation may be true when a claimant does file an
additional claim, or further litigates the abandonment finding, the
failure of one party to attend an informal conference also imposes
significant costs on the parties who did attend and on the Department,
whose officials scheduled the conference and set aside the time
necessary to hold it. In order to reduce the possibility of needlessly
incurring these costs, the Department has proposed a sanction which
should ensure that all parties attend an informal conference that has
been scheduled in accordance with Sec. 725.416.
20 CFR 725.411
(a) Although the Department is not proposing any further revision
to Sec. 725.411, the Department wants interested parties to be aware
that it intends to substantially rewrite the documents it uses in
connection with an initial finding under Sec. 725.411, in particular to
assist unrepresented claimants who are denied benefits. The new letter
will contain a detailed explanation, in clear language, of why the
evidence developed up to that point fails to establish all of the
necessary elements of entitlement. Revision of the initial finding
letter is an important part of the Department's commitment to improve
the quality of the information it provides parties to the adjudication
of claims for black lung benefits. The Department hopes that this
improved communication will accomplish two goals: (1) to make the
processing of black lung claims by the Department's district offices
easier to understand; and (2) to give claimants a clear picture of the
medical evidence developed in connection with their claims so that they
are able to make more informed decisions as to how to proceed.
(b)(i) Four comments express concern that subsection (a) prohibits
treating a claimant's request for a hearing before an administrative
law judge as a "request for further adjudication" if made within one
year of the denial of a claim. The Department disagrees with this
interpretation. The proposed regulation states explicitly that any
expression of an intent to pursue a denied claim amounts to a ``request
for further adjudication.'' An untimely hearing request would
constitute a valid request for further adjudication by the district
director.
(ii) Three comments also state that a claimant who responds to a
denial by requesting a hearing should receive one. Paragraph (a) only
precludes the claimant from receiving the hearing immediately as the
next stage in the adjudication of the claim. Having invoked a
continuation of the claims process by requesting ``further
adjudication,'' the claimant must wait for the district director to
issue a proposed decision and order. Once the district director issues
such a decision, the claimant may pursue any available remedies,
including a hearing, with an appropriate request. By invalidating
premature hearing requests, the Department intends to ensure the
orderly adjudication of claims through each sequential step in the
process, and avoid the uncertainty engendered by case law such as Plesh
v. Director, OWCP, 71 F.3d 103 (3d Cir. 1995) (holding that claimant's
hearing request made before district director completed processing of
claim and issued decision must nevertheless be honored after decision
was issued, although not renewed by claimant). The Department has
therefore made explicit that a hearing request is effective only when
made within 30 days after the district director issues a proposed
decision and order under Sec. 725.419(a) or a denial by reason of
abandonment under Sec. 725.409(b). Any premature request will be
ineffective as a request for a hearing before an administrative law
judge.
(c) One comment contends the one-year period for requesting further
adjudication in subsection (a) represents an impermissible extension of
the one-year period for seeking modification of a claim under
Sec. 725.310 and Sec. 922 of the Longshore and Harbor Workers'
Compensation Act (LHWCA), 33 U.S.C. 922, as incorporated into the Black
Lung Benefits Act by 30 U.S.C. 932(a). The commenter contends a
claimant would have one year under paragraph (a) to request further
adjudication of a denied claim, and one additional year to request
modification of the claim. This interpretation, in effect, treats the
two types of proceedings as mutually exclusive. The Department rejects
this contention because it misinterprets the operation of, and
relationship between, Secs. 725.411 and 725.310.
Under modification, a claimant who has been denied benefits has one
year in which to reopen the denied claim. The generally recognized
standard for invoking the modification process is an intent to pursue
the claim. See generally Eifler v. Director, OWCP, 926 F.2d 663, 667
(7th Cir. 1991). In its initial notice of proposed rulemaking, the
Department explained at length that the one-year period for responding
to a denial of benefits under Sec. 725.411 merely reflects an
incorporation of the one-year period for requesting modification. 62 FR
3356 (Jan. 22, 1997). By eliminating the hierarchy of response times in
the current regulations, the Department has simplified the adjudication
procedures for claimants. Under the current regulations, a claimant has
30 days, 60 days or one year in which to pursue a claim after the
denial, depending on the type of decision and the options available.
Proposed Sec. 725.411 would replace this process with a single time
period (one year) and a single action which the claimant may take: by
indicating any intent to pursue the claim within one year, the claimant
reopens the adjudication process and receives a new decision (a
proposed decision and order) based on new evidence (if proffered) or
reconsideration of the existing record. If the claimant is dissatisfied
with that decision, (s)he may request a hearing before an
administrative law judge. If, however, the claimant takes no action
within one year of a denial, then the claim is finally denied and not
subject to modification. The regulations specifically state that any
submission by the claimant after the one-year time limit in
Sec. 725.411(a)(1)(i) will be treated as an intent to file a subsequent
claim. See Secs. 725.411(a)(1)(ii), 725.309. Consequently, Sec. 725.411
does not violate the one-year modification period or expand the right
of a claimant to reopen a denied claim.
(d) One comment offered in connection with proposed Sec. 725.423
recommends permitting extension of the one-year period for requesting
further adjudication in paragraph (a)(1)(i). The Department addressed
this idea in its initial notice of proposed rulemaking. 62 FR 3361
(Jan. 22, 1997). The Department concluded that allowing an extension of
the one-year period would not be appropriate because one year is an
adequate response period, and any response within that period
demonstrating an intent to pursue a claim is sufficient to reactivate
the adjudication process. For those reasons, no change has been
proposed in response to this comment.
20 CFR 725.414
(a) Numerous commenters criticized the Department's initial
proposal which required the parties to submit all documentary medical
evidence to the district director in the absence of extraordinary
circumstances. A number
[[Page 54993]]
of commenters observed that claimants often are unable to obtain legal
representation until after a case is referred to the Office of
Administrative Law Judges. Thus, under the initial proposal, a claimant
would often be making critical evidentiary decisions without the
benefit of counsel. These commenters also stated that a miner should
not be required to undergo five medical examinations (the section
413(b) pulmonary evaluation and the two examinations permitted each
side) within the relatively short period from the date the claim is
filed to the district director's conclusion of administrative
processing. Other commenters stated that the Department's proposal
would significantly increase operators' litigation costs by requiring
them to develop medical evidence in all cases. Currently, operators
have no need to develop medical evidence in cases in which the claimant
does not take further action after the district director issues an
initial denial of benefits. Statistics maintained by the Department
indicate that in more than 60 percent of the black lung claims filed,
adjudication ceases after a district director's decision.
The Department agrees that the required submission of all
documentary medical evidence to the district director should be revised
in light of the many valid objections received. Accordingly, the
Department proposes instead to retain the current process for
submitting documentary medical evidence into the record. Under this
proposal, parties may continue to submit documentary medical evidence
to the district director in accordance with the schedule issued under
Sec. 725.413. To the extent that those submissions do not reach the
numerical limitations imposed on each side by Sec. 725.414, the parties
may submit additional documentary medical evidence into the record up
to 20 days before an ALJ hearing, and even thereafter, if good cause is
shown. The only other limitation on the submission of documentary
medical evidence to the administrative law judge is found in the
current regulations. The Department proposes to add subsection (e) to
the revised version of this section in order to retain the requirement,
set forth in the Department's current regulations at 20 CFR 725.414(e),
that parties may not withhold evidence they develop while a case is
pending before the district director. Such evidence will be admissible
in further proceedings only if the party establishes extraordinary
circumstances or obtains the consent of the other parties to the claim.
See Doss v. Director, OWCP, 53 F.3d 654, 658 (4th Cir. 1995).
Although the Department now proposes to allow the submission of new
documentary medical evidence while a case is pending before the Office
of Administrative Law Judges, it has not altered the proposal with
respect to the required submission to the district director of all
evidence relating to potentially liable operators and the responsible
operator. The Department explained in its previous notice of proposed
rulemaking that this requirement is intended to provide the district
director with all of the evidence relevant to the identification of the
responsible operator liable for the payment of benefits, in the absence
of extraordinary circumstances. 62 FR 3355-3356 (Jan. 22, 1997). The
proposal was intended to accomodate two interests that may conflict in
some cases: a claimant's interest in the prompt adjudication of his
entitlement; and the Department's interest in protecting the Black Lung
Disability Trust Fund from unwarranted liability. Under the
Department's current regulations, the Director, OWCP, may seek to have
a case remanded from the Office of Administrative Law Judges where
evidence not previously submitted to the district director suggests
that liability for a claim should be imposed on an operator that was
not notified of its potential liability. Such remands necessarily delay
the adjudication of the claimant's entitlement to benefits. Under the
Department's proposed revision, the Director may not seek, and an
Administrative Law Judge may not order, remand of a case to the
district director's office in order to identify additional potentially
liable operators. If the Department has failed to notify the correct
operator of at least its potential liability, the Black Lung Disability
Trust Fund will pay the claimant's benefits in the event of an award.
The Department thus assumes the risk that its initial operator
identification is flawed. This risk can be justified only if the
Department is able to require the early submission of evidence relevant
to the responsible operator issue.
Under proposed Sec. 725.408, a potentially liable operator
identified by the district director has 90 days from the date on which
it is notified of that identification to submit evidence demonstrating
that it does not meet the Sec. 725.494 definition of a potentially
liable operator with respect to a claim. For example, a potentially
liable operator may submit evidence demonstrating that it did not
employ the miner for at least one year, or that it was not an operator
for any period after June 30, 1973. Following the district director's
issuance of an initial finding, and a decision by a party aggrieved by
that finding to seek further review, the operator designated as the
responsible operator must develop and submit any evidence needed to
support a contention that it is not the responsible operator liable
pursuant to Sec. 725.495 for the benefits payable to the claimant. This
evidence, showing, for example, that a more recent employer should be
liable for benefits, must be submitted to the district director in
accordance with the schedule established under Sec. 725.413. An
administrative law judge may admit additional evidence on any issue
regarding either potentially liable operators or the responsible
operator only if the party submitting the evidence demonstrates
extraordinary circumstances justifying its admission. The Department
has also proposed revising subsection (c) to extend the extraordinary
circumstances exception to testimony regarding such issues by a witness
whose identity was not disclosed to the district director.
(b) Several commenters request that the Department further define a
number of terms used in the initial proposal, such as ``rebuttal
evidence,'' "consultative report,'' and ``interpretive opinion." The
Department agrees that some of the terms used in the proposal were
ambiguous, and believes that the regulation would better serve all
interested parties by describing the applicable evidentiary limitations
in terms of the evidence needed to establish a claimant's entitlement
to benefits under Secs. 718.202 and 718.204. Accordingly, the
Department is proposing extensive revisions to this section to ensure
that the intended evidentiary limitations are clearly defined. Each
party may submit two chest X-ray interpretations (of the same X-ray or
two different X-rays, at the option of the party), the results of two
pulmonary function tests and two arterial blood gas studies, and two
medical reports. The medical reports may include a review of any other
evidence of record. Each party may also submit one piece of evidence in
rebuttal of each piece of evidence submitted by the opposing party, and
may submit one piece of evidence challenging each component of the
Department's complete pulmonary evaluation authorized by Sec. 725.406.
Thus, a party may have each chest X-ray submitted by the opposing party
reread once, and may submit one report challenging the validity of each
pulmonary function study or blood gas test submitted by the opposing
party. In addition, one
[[Page 54994]]
commenter asked that the Department permit a party to rehabilitate
evidence that has been the subject of rebuttal by the opposing party.
For example, where a party submits a physician's opinion stating that
the results of a pulmonary function study are invalid because the miner
expended less than maximal effort in performing the test, the party
submitting the test should be able to introduce a contrary statement
from the physician who administered it. The Department agrees, and has
revised paragraphs (a)(2)(ii) and (a)(3)(ii) accordingly.
(c) A large number of commenters favor the proposed limitation on
the quantity of medical evidence each side may submit. A number of
other commenters object to the proposed limitation on the amount of
medical evidence. They argue: (1) That the limitation is unnecessary;
(2) that the exclusion of evidence will decrease the quality of
factfinding under the Black Lung Benefits Act; (3) that the limitation
violates section 413(b) of the Act, 30 U.S.C. 923(b); (4) that the
limitation violates the Administrative Procedure Act, 5 U.S.C. 551 et
seq.; and (5) that the limitation violates employers' due process
rights. The Department anticipated most of these criticisms in the
explanation of Sec. 725.414 contained in its initial notice of proposed
rulemaking, 62 FR 3356-61 (Jan. 22, 1997), and the arguments advanced
by the commenters provide no basis upon which to alter the regulation's
proposed limitation as to the quantity of admissible evidence.
The Department continues to believe that the limitation represents
a reasonable means of focusing the fact-finder's attention on the
quality of the medical evidence in the record before him. In
particular, the limitation ensures that the claimant will undergo no
more than five pulmonary evaluations (two claimant evaluations, two
responsible operator evaluations, and the initial pulmonary evaluation
provided by the Department under 30 U.S.C. 923(b)) for purposes of
assessing claimant's entitlement to benefits. In light of the strenuous
nature of pulmonary testing, including both pulmonary function tests
and arterial blood gas tests, no claimant should have to undergo
repeated evaluations simply to create a numerically superior
evidentiary record for one side or the other. Instead, five evaluations
should be sufficient in most cases to allow the fact-finder to assess
the miner's pulmonary condition. In the Department's view, additional
evaluations would be of only marginal utility.
The Department's initial notice did not explicitly address,
however, the extent to which a party's due process rights might be
compromised by the Department's limitation on the amount of evidence
that party may submit. The due process clause of the Fifth Amendment of
the Constitution precludes governmental deprivations of life, liberty,
or property without due process of law. Due process ``is not a
technical conception with a fixed content unrelated to time, place and
circumstances,'' but rather, a "flexible" doctrine that requires
"such procedural protections as the particular situation demands."
athews v. Eldridge, 424 U.S. 319, 334 (1976). At a minimum, it
requires an opportunity to be heard ``at a meaningful time and in a
meaningful manner.'' Id. at 333. A meaningful administrative hearing
does not require the "wholesale transplantation" of judicial rules
and procedures. Id. at 348. Nonetheless, the judicial model is a guide
for assuring "fairness." Id. In the end, due process cases turn on
"the procedure's integrity and fundamental fairness." Richardson v.
Perales, 402 U.S. 389, 410 (1971).
In determining whether an administrative practice satisfies due
process, the courts balance three distinct factors:
the private interest that will be affected by the official action;
second, the risk of an erroneous deprivation of such interest
through the procedures used, and the probable value, if any, of
additional or substitute procedural safeguards; and finally, the
government's interest, including the function involved and the
fiscal and administrative burdens that the additional or substitute
procedural requirements would entail.
athews, 424 U.S. at 335.
The Department recognizes that both operators and claimants have
significant, albeit competing, private interests at stake. Operators
and their insurers have a monetary interest in each claim (involving an
average payout over the life of the claimant of $175,000) and an
interest in not being required to pay benefits in nonmeritorious cases.
Claimants, on the other hand, are interested in the financial benefit
of an award and in the opportunity to substantiate their claims without
being overwhelmed by the superior economic resources of their
adversaries.
As a general rule, the Department does not believe that there is a
significant risk of the erroneous deprivation of private interests on
either side if both the claimant and the party opposing entitlement are
subject to similar limitations on the quantity of the evidence that
they may develop. Applicants with non-meritorious claims will find it
difficult to generate two favorable medical reports, accompanied by
supportive objective testing, from well-credentialed physicians. Faced
with well-documented reports from an equal number of physicians
retained by operators and their insurers, claimants will be unable to
meet their burden of establishing each element of entitlement.
Consequently, there is no increased risk of an erroneous deprivation of
the interests of parties opposing entitlement. Similarly, the
Department does not believe that the proposed evidentiary limitations
will result in the denial of meritorious claims that are currently
being awarded. Awards are typically issued in cases containing
qualifying objective testing, or a reasoned and documented medical
report by a physician with in-depth knowledge of both the miner's
respiratory and pulmonary condition and the exertional requirements of
the miner's usual coal mine work. Moreover, the overwhelming support
for this proposal from claimant groups and attorneys suggests that they
also do not believe that it will erroneously deprive meritorious
claimants of benefit awards.
In order to allow for the more careful consideration of the unique
facts and circumstances of each case, however, and to provide an
additional procedural safeguard, the Department has revised
Sec. 725.456 as initially proposed to permit an administrative law
judge to admit medical evidence into the record in excess of the limits
outlined in Sec. 725.414 upon a showing of good cause. The Department's
prior proposal would have permitted the admission of such evidence only
if a moving party could demonstrate extraordinary circumstances. By
adopting the more permissive good cause standard, the Department
recognizes that a rigid rule prohibiting additional evidence may
increase the risk of an erroneous deprivation of private interests in
particular cases. For example, one commenter states that hearings in
the Western states are frequently rescheduled due to weather conditions
and rescheduling requests of the parties. In light of the time which
elapses between the hearing request and the actual hearing, and the
progressive nature of pneumoconiosis, the commenter argues that parties
must be able to obtain and submit into the record more recent medical
evidence. The commenter suggests that if a party has already submitted
the maximum amount of evidence long before a case is heard, the record
will be devoid of any evidence regarding the miner's
[[Page 54995]]
current medical condition. The Department agrees that in such a case,
an administrative law judge may authorize the development of additional
medical evidence in a manner that is equitable to all parties. Thus, to
the extent that the evidentiary limits might heighten the risk of the
erroneous deprivation of a private interest, the Department seeks to
limit that result by allowing the submission of additional medical
evidence upon a showing of good cause.
The Department continues to believe that the amount of medical
evidence admissible under this provision will generally be adequate to
guarantee a full and fair adjudication of the miner's entitlement to
benefits. The government also has an interest in maintaining that
guarantee, and in improving the public's perception of the fairness of
the process. The government's interest represents the third factor to
be balanced under the Supreme Court's due process analysis. The
additional flexibility contained in the Department's revised proposal,
requiring that a party seeking to submit additional medical evidence in
any individual case must establish good cause justifying its admission,
will not impair the government's interest. Moreover, the Department's
proposal will provide additional safeguards to ensure that the
adjudication process properly balances the interests of all parties to
a black lung claim. Accordingly, the Department does not believe that
the evidentiary limitations contained in this provision will be
considered a violation of the due process clause.
(d) One comment objects to the Department's proposal to limit
claimants' travel for responsible operator testing and/or examination
to 100 miles from their homes. The Department's initial proposal
contained the same restriction as does its current regulation (current
20 CFR 725.414(a); proposed Sec. 725.414(a)(3)(i), limiting the ability
of coal mine operators to compel miners to travel more than 100 miles
to undergo an evaluation). The commenter argues that such a travel
restriction on operators is not justified absent a comparable
restriction on claimants. The Department does not believe that it would
be appropriate to impose such a limitation on miners. The Department's
proposed revision to Sec. 725.406, however, allows a miner to select
the physician or facility to perform the complete pulmonary evaluation
guaranteed under section 413(b) of the Act, 30 U.S.C. 923(b), from
among authorized physicians or facilities in the state of his residence
or any contiguous state. The limitation in the current regulations and
the Department's initial proposal was intended to ensure that a coal
mine operator not be able to subject a miner to undue hardship in
traveling to the site of a physical examination. Where the miner
selects a facility or physician more than 100 miles from his residence,
however, he has demonstrated his willingness to undertake additional
travel. In such cases, absent a change in the miner's health, the
designated responsible operator should be entitled to compel the miner
to travel an equivalent distance. Where the miner selects a physician
within a 100-mile radius of his residence, the original rule should
remain in effect. In order to effectuate these changes, the Department
proposes revising subsection (a)(3)(i).
(e) Several comments have asked the Department to alter the
evidentiary limitations set forth in this section. One commenter urges
the Department to exempt the report of a claimant's treating physician
from the limitations while another feels that one examination per side
is adequate. Another commenter suggests that the Department permit the
responsible operator to submit only as much evidence as the claimant
submits, thus allowing the claimant to determine the size of the
evidentiary record. A fourth commenter suggests limiting responsible
operators to no more than one medical report authored by a physician
who examined the miner. The Department does not believe that any of
these suggestions would be appropriate. The evidentiary limitations
should not be skewed to allow one party to submit more evidence than
another, or evidence of a different quality. Instead, each party must
remain free to tailor the presentation of its case to the facts while
functioning within the same evidentiary limitations applicable to other
parties. The Department also notes that, to the extent these
suggestions are based on a well-founded concern over requiring the
miner to undergo up to five physical examinations within a short time,
a specific concern of one commenter, the Department's proposal allowing
parties to submit evidence to the OALJ will extend the period within
which the parties may seek to have the miner examined.
(f) One commenter urges the Department to allow a physician who
prepared a medical report to rely on the opinion of the miner's
treating physician in the course of preparing his report. The
Department's proposal permits physicians to consider other physicians'
opinions only if the medical reports of those physicians are
independently admitted into the record in accordance with the
regulation's evidentiary limitations. In addition, physicians preparing
medical reports may rely on any treatment or hospitalization record
that is admitted into the record under subsection (a)(4). The
Department does not believe, however, that the regulations need contain
any special treatment of the opinion of a miner's treating physician
other than is provided in Sec. 718.104(d).
(g) The Department has revised subsection (c) in order to clarify
its intent and prevent parties from exceeding the evidentiary
limitations by designating additional physicians as hearing witnesses.
As revised, subsection (c) will permit testimony, either at the formal
hearing or by deposition, by physicians who prepared medical reports.
Other physicians may testify only to the extent that the party offering
their testimony has not reached the limitation imposed by the
regulation on the number of admissible medical reports, or if the
administrative law judge finds good cause for allowing a party to
exceed that limitation. In effect, testimony by a physician who did not
prepare a documentary report will be considered a medical report for
purposes of the evidentiary limitations. Thus, if a party has submitted
only one documentary medical report, it may offer the testimony of one
additional physician. If a party has not submitted any documentary
medical reports, it may offer the testimony of two physicians.
(h) Several commenters believe that each potentially liable
operator should be entitled to obtain its own medical evidence. In its
initial notice of proposed rulemaking, the Department explained that
the limitation on the submission of medical evidence in cases involving
more than one potentially liable operator is necessary to ensure that
claimants are not subject to multiple examinations simply because they
have an employment history that leaves the identity of the responsible
operator in some doubt. 62 FR 3360-61 (Jan. 22, 1997). The comments
offer no basis upon which to revise this provision. One comment
supports the Department's proposal as in accord with the Federal
Judicial Center's Manual for Complex Litigation, 3d (1995), Sec. 20.22-
20.222. Another comment states that district directors should never
permit a potentially liable operator, other than the designated
responsible operator, to submit evidence. The Department disagrees.
Even in multiple operator cases, the proposed regulations allow all of
the potentially liable operators to collectively submit no more
evidence than that permitted the claimant. In the
[[Page 54996]]
event the designated responsible operator fails to develop the
evidence, however, the district director must have the authority to
permit the submission of medical evidence by another potentially liable
party. Ultimately, of course, it will be the responsibility of the
administrative law judge to ensure that the adjudication of the miner's
entitlement is fair.
(i) Several commenters generally request the Department to clarify
the admissibility of hospital records, and the results of autopsies and
biopsies as proposed in Sec. 725.414(a)(4). The Department believes
that proposed subsection (a)(4) would require the admission of any
medical record relating to the miner's respiratory or pulmonary
condition without regard to the limitations set forth elsewhere in
Sec. 725.414. To be sufficient to establish an element of entitlement,
however, a report of autopsy or biopsy must substantially comply with
the applicable quality standards, Sec. 718.106. See Sec. 718.101(b).
The Department has not included an independent provision governing
rebuttal of this evidence. As a general rule, this evidence is not
developed in connection with a party's affirmative case for or against
entitlement, and therefore the Department does not believe that
independent rebuttal provisions are appropriate. Any evidence that
predates the miner's claim for benefits may be addressed in the two
medical reports permitted each side by the regulation. If additional
evidence is generated as the result of a hospitalization or treatment
that takes place after the parties have completed their evidentiary
submission, the ALJ has the discretion to permit the development of
additional evidence under the "good cause" provision of Sec. 725.456.
20 CFR 725.416
A number of commenters, including representatives of claimants,
coal mine operators and their insurers, urge the Department to
eliminate informal conferences altogether. They argue that informal
conferences seldom accomplish any purpose, and thus waste considerable
time and resources. The Department disagrees. In the explanation of
Sec. 725.416 that appeared in its initial notice of proposed
rulemaking, 62 FR 3361 (Jan. 22, 1997), the Department explained that
informal conferences serve a variety of useful purposes, including
narrowing issues, achieving stipulations, and crystallizing positions.
The comments received by the Department provide no reason to alter this
view. In order to increase acceptance of the informal conference
procedure, however, the Department believes that the district director
should be able to articulate, in each case, why he believes that an
informal conference would be helpful in the processing of the claim.
Accordingly, the Department proposes to revise subsection (b) in order
to require the district director to provide the parties with a
statement articulating specific reasons why an informal conference
would assist in the voluntary resolution of issues. The reasons must be
tailored to the specific facts of that case. The district director's
failure to include such a statement in his notification of conference
will foreclose the use of sanctions set forth in paragraph (c). In
addition, in order to reduce the parties' costs in participating in an
informal conference, the Department proposes to formally recognize the
district offices' current practice of allowing parties to participate
by telephone in appropriate cases. Although the decision to allow
telephone participation is committed to the discretion of the district
director, the Department's regulations should explicitly acknowledge
the availability of this option, and allow the parties to request its
use by filing a request with the district director.
(b) One comment states that the proposed sanctions set forth in
subsection (c) will lead to further litigation and/or refilings. The
Department has previously addressed this comment. See discussion of
Sec. 725.409.
Subpart F
20 CFR 725.456
(a) The Department proposes to retain the current rules governing
time periods for submitting documentary medical evidence into the
record. A change has been made to paragraph (b)(1) to reflect this
decision, and new paragraphs (b)(2)-(4) and (c) have been added to the
proposal from the Department's current rules (20 CFR 725.456(b)(1)-(3),
(c), (d)). These revisions are fully explained above.
(b) Paragraph (f) has been revised to take into account changes to
section 725.406. Since the proposal would now require that the
Sec. 725.406 pulmonary evaluation be performed by a facility or
physician selected from a list maintained by the Office, language in
subsection (f) that contemplated examination and/or testing by a
facility or physician not approved by the Office has been deleted. See
discussion accompanying Sec. 725.406.
(c) All of the comments related to the Department's proposed
revision of Sec. 725.456 are discussed under Sec. 725.414.
20 CFR 725.457
(a) The Department has explained its proposal to retain the current
rules governing the timely submission of medical evidence in connection
with its explanation of changes to Sec. 725.414. The Sec. 725.414
revision requires a corresponding change in the rule governing the
identification of witnesses in proceedings before the Office of
Administrative Law Judges. The revised regulation allows the testimony
of witnesses relevant to the liability of a potentially liable operator
and/or the identification of the responsible operator only if the
identity of that witness was disclosed to the district director or the
administrative law judge finds extraordinary circumstances. A physician
may testify only if he prepared a medical report admitted into the
record by the district director or administrative law judge.
Alternatively, a physician may testify if his testimony, when
considered as a medical report, does not result in a violation of the
limitations on the quantity of evidence permitted by Sec. 725.414, or
if the administrative law judge finds good cause for allowing the party
offering the testimony to exceed those limitations.
(b) A number of commenters objected to the Department's proposal
limiting the scope of a physician's testimony. They argued that
physicians who testify must be allowed to address all of the medical
evidence of record in order to explain their conclusions, and that
cross-examination of those physicians will depend on reference to
objective testing and medical conclusions contained in other reports.
The Department agrees that the original proposal's limitation was
inappropriate, and has revised paragraph (d) accordingly. As revised,
the regulation will only prevent a physician from testifying with
respect to medical evidence relevant to the miner's condition that is
not admitted into the record.
20 CFR 725.459
One commenter suggests that the Black Lung Disability Trust Fund
should be liable for witness fees incurred by an indigent claimant when
cross-examining an adverse witness. Another commenter argues that the
Department's original proposal, under which the party seeking to cross-
examine a witness must pay the necessary fees to secure that witness,
violates section 28 of the Longshore and Harbor Workers' Compensation
Act, 33 U.S.C. 928, as incorporated by 30 U.S.C. 932(a). Section 28
generally requires that employers pay the reasonable costs
[[Page 54997]]
of successful claimants. In light of these comments, the Department has
reconsidered its approach to the payment of expenses associated with
cross-examination.
The Department now proposes that the costs of cross-examination be
borne by the party relying on the affirmative testimony of that
witness. For example, where an employer submits a report by a
physician, and the claimant seeks to summon the physician to the
hearing for cross-examination, the employer must bear the costs of
reimbursing its own physician. Under the regulation, the employer may
request that the administrative law judge authorize a less intrusive
method of cross-examination, including a deposition, telephone
deposition, or interrogatories, provided that the method authorized
will produce a full and true disclosure of the facts.
The only exception to this general rule is in the case of an
indigent claimant. The Department agrees that a claimant's medical
evidence should not be excluded based on a claimant's financial
inability to make a physician available for cross-examination.
Accordingly, the Department proposes to revise paragraph (b) to allow
an administrative law judge to apportion the costs of cross-examination
where the claimant demonstrates his indigence. The Department does not
agree, however, that the trust fund may be held liable for such fees in
every case. Although the statutory provision governing the disbursement
of monies from the fund, 26 U.S.C. 9501, permits the fund to pay
administrative expenses associated with the black lung benefits
program, the Department does not believe that the expenses of cross-
examination should necessarily be included in this category. Rather,
the responsible operator seeking to cross-examine claimant's witness
should bear liability for such fees, an expense which the operator may
easily control. The fund will be liable for such witness fees in cases
in which there is no coal mine operator liable for the payment of
benefits. See, e.g., Republic Steel Corp. v. U.S. Department of Labor,
590 F.2d 77 (3d Cir. 1978) (holding the fund liable for the payment of
attorney's fees because the fund, the party liable for the payment of
claimant's benefits, stood in the shoes of a responsible operator).
Accordingly, in a case in which the claimant is indigent and a party
seeks to cross-examine a witness of claimant's, the administrative law
judge must apportion the costs among the claimant and the party
opposing the claimant's entitlement. Where that party is an operator,
the operator may be asked to bear all or part of the costs of cross-
examination, as appropriate. Where that party is the fund, the fund is
subject to the same apportionment rules. In addition, the fund will
bear liability for the costs of cross-examining the doctor who
administered the section 413(b) pulmonary evaluation. See Sec. 725.406.
The Department's proposal has several advantages. First, it avoids
potential due process problems associated with the Department's
previous proposal because no financial burden is placed on parties who
wish to exercise their right to cross-examination except in the case of
a claimant who is unable to pay the associated costs. At the same time,
requiring the parties to show the necessity of a specific means of
cross-examination, and allowing the administrative law judge to
exercise sound discretion in addressing requests for cross-examination,
protects witnesses from undue burdens and parties from undue expense.
Under this proposal, operators would be required to bear the cost of
witness fees only for their own witnesses, indigent claimants'
witnesses, and for claimants who are ultimately successful in
establishing their entitlement to benefits.
20 CFR 725.465
Section 725.465 sets forth the conditions under which an
administrative law judge may dismiss a claim, and also authorizes the
administrative law judge to dismiss a party who is not a proper party
to the claim under Sec. 725.360. The regulation was not among the
provisions the Department opened for comment in its previous notice of
proposed rulemaking, 62 FR 3341 (Jan. 22, 1997), and the Department did
not receive any comments directed to this section. The Department now
proposes to revise this regulation, however, to ensure that all
potentially liable operators remain parties to proceedings before the
administrative law judge in the absence of the Director's agreement to
their dismissal. In proposing new regulations governing the
identification of responsible operators, the Department intends that
all potentially liable operators named by the district director have
the opportunity to participate in the adjudication of the claimant's
entitlement both before the administrative law judge and on appeal.
Thus, under this proposed change, even if an administrative law judge
concludes that one of the potentially liable operators is the
responsible operator as defined by Subpart G of Part 725, he may not
dismiss the other potentially liable operators absent the Director's
consent. In the event that his responsible operator finding is reversed
or vacated by either the Benefits Review Board or a federal court of
appeals, the dismissal of other potentially liable operators before or
simultaneously with adjudication of the claimant's entitlement would
adversely impact the financial interests of the Black Lung Disability
Trust Fund. Given the absence of the correct potentially liable
operator as a party to a case, liability might well be imposed on the
fund, especially since the proposal prohibits the re-naming of
potentially liable operators after a case is referred to the Office of
Administrative Law Judges, Sec. 725.407(d).
Subpart G
20 CFR 725.491
(a) One commenter objects to the Department's attempt to clarify
the liability of independent contractors under the Black Lung Benefits
Act. The commenter argues that in imposing liability on independent
contractors who do not have a "continuing presence" at the mine, the
Department is exceeding its statutory mandate. Specifically, the
commenter objects to the Department's decision to codify the D.C.
Circuit's decision in Otis Elevator Co. v. Secretary of Labor, 921 F.2d
1285 (D.C. Cir. 1990), instead of the Fourth Circuit's decision in Old
Dominion Power Co. v. Donovan, 772 F.2d 92 (4th Cir. 1985). The
Department has consistently advocated a broad interpretation of the
statutory provision defining "operator" and its application to
independent contractors, both in the context of litigation under
subchapters 1 through 3 of the Federal Coal Mine Health and Safety Act
and under the Black Lung Benefits Act. The D.C. Circuit accepted the
Department's views in Otis Elevator while the Fourth Circuit rejected
the Department's position in Old Dominion Power. In addition, while the
Department was preparing its initial notice of proposed rulemaking, the
Tenth Circuit announced its agreement with Otis Elevator: ``Although
Congress may have been specially concerned with contractors who are
engaged in the extraction process and who have a continuing presence at
the mine, * * * section 3(d) by its terms is not limited to these
contractors.'' Joy Technologies v. Secretary of Labor, 99 F.3d 991, 999
(10th Cir. 1996), cert. denied, 117 S. Ct. 1691 (1997).
The commenter cites the Third Circuit's decision in National
Industrial Sand Ass'n v. Marshall, 601 F.2d 689 (3d Cir. 1979), in
support of its position that the term "operator" should be narrowly
construed. In National
[[Page 54998]]
Industrial Sand, however, the Third Circuit recognized that, as of the
date of the court's opinion, the Department of Labor had not yet
promulgated regulations under the Federal Mine Health and Safety Act
defining the degree to which independent contractors were subject to
that Act's health and safety provisions. The dicta cited by the
commenter thus does not constitute a rejection of the Department's
position on coverage. Given the adoption of its position by the D.C.
and Tenth Circuits, and its rejection by only the Fourth Circuit, there
appears to be no reason for the Department to adopt in its regulations
a decision at odds with its consistent interpretation, and the
commenter provides none.
The same commenter suggests that the Department's interpretation
would result in the coverage of food and beverage workers who serve
lunch to coal miners. The Act requires that those who contract
pneumoconiosis as a result of work in the Nation's coal mines receive
compensation for the totally disabling effects of that disease.
Although it is difficult to imagine that food and beverage workers will
be sufficiently exposed to coal mine dust to contract pneumoconiosis,
those individuals who are totally disabled as a result of that
exposure, and who meet the definition of "miner" (``* * * any
individual who * * * has worked in or around a coal mine or coal
preparation facility in the extraction or preparation of coal,'' 30
U.S.C. 902(d)), are no less entitled to compensation than are other
miners. The employer of such individuals must assume liability for the
payment of any benefits to which they are entitled, provided that the
employer meets the criteria for a potentially liable operator set forth
in Sec. 725.494.
(b) One commenter argues that the Department's exclusion in
Sec. 725.491(f) of both state and federal governments from potential
liability under the Act is inappropriate. The commenter suggests that
the Department's proposal excluding the United States will cause
federal employees to file claims under the Black Lung Benefits Act
rather than the Federal Employees Compensation Act (FECA). The
Department disagrees; the proposed regulation merely codifies the
holding of the Fourth Circuit in Eastern Associated Coal Corp. v.
Director, OWCP, 791 F.2d 1129 (4th Cir.1986). The court in that case
held that the United States could not be considered a responsible
operator based on the miner's most recent employment as a federal coal
mine inspector. To the extent that such employees develop
pneumoconiosis as a result of previous coal mine employment, they must
be permitted to file claims under the Act. To the extent that they are
injured during the course of their federal employment, FECA provides
the appropriate remedy. The Department does not agree that its adoption
of the Fourth Circuit's decision in Eastern Associated Coal will result
in an increase in unwarranted claims under the Act.
The same commenter argues that the Department cannot relieve state
governments of their liability under the Act, and that the Department's
approach under the Black Lung Benefits Act is inconsistent with its
approach under the Fair Labor Standards Act. The comment, however,
fails to recognize a fundamental difference between the two statutes:
the Black Lung Benefits Act contains no mention of states as employers
subject to potential liability for black lung benefits, while the Fair
Labor Standards Act explicitly lists state governments among the
"public agencies" that may be considered employers for FLSA purposes.
Supreme Court caselaw illustrates the importance of this distinction.
In Gregory v. Ashcroft, 501 U.S. 452 (1991), the Court considered the
applicability of the Age Discrimination in Employment Act to judges
employed by the State of Missouri. The Court observed that, although
the Tenth Amendment to the United States Constitution did not prohibit
Congress from exercising the power derived from the Commerce Clause
with respect to state governments, ``we must be absolutely certain that
Congress intended such an exercise.'' 501 U.S. at 464. The Fair Labor
Standards Act meets this test; Congress clearly intended that the FLSA
apply to public agencies, including state governments. In the absence
of similar language in the Black Lung Benefits Act, however, the
Department cannot seek to hold states liable for the payment of black
lung benefits.
(c) One comment states that the rebuttable presumption of exposure
to "coal dust" set forth in subsection (d) is inconsistent with the
presumption set forth in Sec. 725.202 of this part. The Department
agrees that the two provisions should be harmonized. Both the Third and
Eleventh Circuits have agreed that the Department's use of the term
"coal mine dust" in Sec. 725.202 represents a permissible reading of
the Black Lung Benefits Act. Williamson Shaft Contracting Co. v.
Phillips, 794 F.2d 865, 870 (3d Cir. 1986); William Brothers, Inc. v.
Pate, 833 F.2d 261, 264 (11th Cir. 1987). Congress intended that the
Black Lung Benefits Act provide compensation for any ``chronic dust
disease of the lung * * * arising out of coal mine employment.'' 30
U.S.C. 902(b). The Department has consistently interpreted this mandate
broadly, by including diseases such as silicosis in the definition of
the term "pneumoconiosis," provided they arise out of coal mine
employment. See 43 FR 36825 (Aug. 18, 1978). The Department accordingly
proposes to revise subsection (d) to make it conform with Sec. 725.202,
and to revise subsection (a)(2)(i) to ensure the consistent use of the
phrase "coal mine dust."
20 CFR 725.492
(a) One commenter suggests that the Department's proposed
regulations would require the purchaser of a coal mine company's assets
in a bankruptcy proceeding to assume the bankrupt company's black lung
benefits liabilities, and that this provision would destroy the coal
mining industry in Maryland. The Secretary's regulations merely repeat
the language of the statute, which provides that successor operator
liability may arise from "corporate reorganizations" and
"liquidations," among other listed transactions. 30 U.S.C.
932(i)(3)(A). The Department is not free to disregard Congress'
explicit intent to cover a wide variety of transactions in which coal
mine assets may be sold. The Act and regulations generally impose
potential liability on a successor operator, however, only after the
transfer of coal mine assets from a seller that has failed to secure
its potential liability in violation of the statutory mandate at 30
U.S.C. 933(a); if the seller obtained black lung insurance, a purchaser
of its coal mine assets will probably not face any black lung
liabilities arising from the seller's previous operation of the mine.
(b) Another commenter observes that the Department's regulations
would shift liability to a successor operator, notwithstanding the fact
that a prior operator that had gone out of business had insurance to
cover a given claim. The Department disagrees that the proposed
regulations would produce this outcome. The Department's first notice
of proposed rulemaking contained an example in an attempt to make the
intent of the regulation clear. See 62 FR 3365 (Jan. 22, 1997). Indeed,
the regulations specifically provide that a prior operator shall remain
liable if it meets the requirements of Sec. 725.494, Sec. 725.492(d).
See also Sec. 725.493(b)(1). One of Sec. 725.494's requirements is that
the prior operator must remain financially capable of assuming
liability for the payment of benefits. An operator is deemed capable of
assuming liability
[[Page 54999]]
for a claim if it obtained insurance and the insurance company is not
insolvent, Sec. 725.494(e)(1). Section 725.495 assigns liability to the
operator that most recently employed the miner. Thus, if a miner's most
recent employer obtained insurance and subsequently sold its assets or
dissolved into a parent corporation, section 725.495 would require the
most recent employer's insurer to assume liability for any benefits
payable to the claimant. Only if that insurer is no longer solvent will
the Department seek to impose liability on a successor or parent
corporation. Because the Department believes that the regulations are
clear on this point, no changes have been made.
20 CFR 725.493
(a) The Department has made a technical change to the language of
subsection (a)(2) to make the regulation easier to read.
(b) One comment objects to subsection (a)(1) as an attempt to
redefine independent contractors and sole proprietors as employees, in
order to force coal mine operators to assume liability for any benefits
payable to those individuals. In administering the Black Lung Benefits
Act for the past 25 years, the Department has seen coal mine companies
use a variety of financial arrangements in an effort to avoid liability
for black lung benefits. These have included the designation of all
miners as partners, the use of 11-month employment contracts with an
operator's subsidiaries, and the establishment of separate, underfunded
companies to provide labor to a coal mine operator. Subsection (a)(1)
is intended to foreclose those efforts by recognizing a broad range of
employment relationships between coal mine companies and those
individuals who actually mine coal. By proposing more specific language
defining an "employment relationship," the Department hopes to ensure
that coal mine operators provide compensation to all their employees
with totally disabling pneumoconiosis. It is not the Department's
intent, however, to redefine "independent contractor" or ``sole
proprietor'' simply to make coal mine operators liable for those
individuals' benefits. The Department has added language to subsection
(a)(1) to clarify its purpose, and invites comment on whether the
proposed language accomplishes the Department's intent.
(c) One comment suggests that the "control" test of subsection
(a)(2) is unconstitutional insofar as it creates federal common law.
The comment contains no citation to specific precedent and no further
explanation. The comment therefore provides the Department with an
insufficient basis for altering the proposal.
20 CFR 725.494
(a) The Department has made several technical changes to the
language of the proposed regulation to make the regulation easier to
read.
(b) One comment suggests that the presumptions set forth in
subsections (a) and (e) are illegal and violate the Supreme Court's
decision in Greenwich Collieries. The Department's authority to create
regulatory presumptions is discussed in detail elsewhere in this
preamble. The Department notes that the presumption set forth in the
proposed version of subsection (a) merely reflects the presumption
currently contained in Sec. 725.493(a)(6). Subsection (e) is not a
presumption at all, but merely a recitation of the evidence that will
support a finding that a coal mine operator is financially capable of
assuming liability for the payment of benefits, one of the Secretary's
prerequisites for naming a company a potentially liable operator.
(c) One miner comments that the only coal mining company he worked
for after 1969 is now bankrupt, so that the Sec. 725.494(d) requirement
is not met in his case. He asks where that leaves miners like him. A
miner's failure to meet this requirement has no impact on his potential
entitlement to benefits. It merely means that if he is found entitled,
his benefits will be paid by the Black Lung Disability Trust Fund
rather than a coal miner operator or its insurer.
20 CFR 725.495
Several commenters argue that Sec. 725.495 impermissibly shifts the
burden of proof as to the identity of a responsible operator from the
Department to employers. The commenters state that the proposed
language does not codify current law, but rather the unsuccessful
litigation position advanced by the Department in Director, OWCP v.
Trace Fork Coal Co., 67 F.3d 503 (4th Cir. 1995). In its explanation of
the proposed revision of Sec. 725.495, the Department acknowledged that
its proposal addressed issues not resolved by the current regulations.
62 FR 3364-65 (Jan. 22, 1997). The commenters' implication that the
proposal violates the Fourth Circuit's decision, however, is mistaken.
In Trace Fork, the court explicitly observed that ``[t]he Black Lung
Benefits Act and its accompanying regulations do not specifically
address who has the burden of proving the responsible operator issue.''
67 F.3d at 507. In the absence of specific guidance, the court
concluded that the Secretary bore this burden. In proposing these
regulations, the Department is not violating Trace Fork, but rather
filling the void noted by the court. The Department's prior explanation
in its original proposal, 62 FR 3363-65 (Jan. 22, 1997), contains a
full explanation of the Department's proposed changes.
Subpart H
20 CFR 725.502
(a) Paragraph (b)(1), as originally proposed, made monthly benefits
due on the ``first business day of the month following the month for
which the benefits are payable.'' 62 FR 3412 (Jan. 22, 1997). Although
no comments were received concerning this provision, the Department has
determined that paragraph (b)(1) should be changed to make monthly
benefits due on the fifteenth calendar day of the month. This change
reflects current departmental practice with respect to the payment of
benefits by the Trust Fund. The change will promote consistency on the
part of the Trust Fund and operators by requiring the payment of
monthly benefits on the same schedule. Thus, the change will allow
uniform claimant expectation as to the regular date of payment,
notwithstanding the identity of the payor.
The proposed change also affects the example of hypothetical due
dates for the payment of benefits contained in the initial notice of
proposed rulemaking, 62 FR 3366 (Jan. 22, 1997). In that example, an
administrative law judge's order awarding benefits issues on August 15,
1996. Under paragraph (b)(1), as originally proposed, the operator must
pay the monthly benefits due for August within ten days after the first
business day of September (i.e., September 10, 1996) to avoid a
penalty; September is the ``month following the month for which the
benefits are payable.'' Paragraph (b)(1), as reproposed, would require
the operator to pay the monthly benefits for August within ten days
after the fifteenth of September to avoid the late-payment penalty
(i.e., September 25, 1996). As discussed in the January 1997 preamble,
retroactive benefits covering the period before the ALJ's August 15,
1996, award, will not be due until the district director completes the
computation of these amounts and notifies the parties. Such
notification will be completed within 30 days of August 15, 1996.
(b) Several comments state that imposition of the twenty percent
penalty for failure to commence the
[[Page 55000]]
timely payment of benefits after entry of an effective award is unfair
and punitive when the penalty applies to an award which is still in
litigation. The Department disagrees. The Black Lung Benefits Act
incorporates the twenty percent penalty provision of the Longshore and
Harbor Workers' Compensation Act, 33 U.S.C. 914(f), as incorporated by
30 U.S.C. 932(a). The purpose of the penalty is to ensure prompt
compliance by an employer with its benefits obligations under the terms
of an award, and without regard to further proceedings involving the
claim. See 43 FR 36815 (Aug. 18, 1978), Sec. 725.607, Discussion and
changes (a). The existence of the Black Lung Disability Trust Fund does
not change that purpose. As discussed in the first notice of proposed
rulemaking, 62 FR 3365-66 (Jan. 22, 1997), only some responsible
operators commence the payment of benefits upon entry of an award when
further proceedings are pending; even fewer pay retroactive benefits.
Noncompliance shifts the burden of paying interim monthly benefits to
the Trust Fund to ensure the claimant receives benefits until
compliance ensues, or the litigation terminates with affirmation of the
award or its reversal. Operators therefore routinely use the Trust Fund
as a surrogate to defer liabilities or reduce the risk of losing
interim payments in the event an award is reversed, and the beneficiary
cannot repay the interim benefits. The Department recognizes the fiscal
reasoning behind this practice. Congress, however, imposed primary
responsibility for paying benefits on the coal mining industry, and
intended individual operators to assume liability to the maximum extent
possible. See generally Old Ben Coal Co. v. Luker, 826 F.2d 688, 693
(7th Cir. 1987), quoting S. Rep. No. 209, 95th Cong., 1st Sess. 9
(1977). Congress created the Trust Fund to fulfill two limited roles:
pay claims for which no individual operator could be held liable, and
assume temporary liability if the responsible operator fails or refuses
to pay. 26 U.S.C. 9501(d). With respect to the latter role, the Fund
acts to protect the claimant by ensuring the continuous and timely
receipt of benefits until the operator pays or the award is overturned.
This objective does not extend to insulating the responsible operator
from the economic risks of paying benefits on an award which might
ultimately be reversed. Moreover, requiring payment of benefits on a
non-final award does not infringe the operator's right to challenge the
award. Section 725.502 simply shifts the economic risk that the initial
award is incorrect from the Trust Fund to the operator. The operator
receives adequate protection of its interests through its right to
develop evidence and participate in the adjudication process. Such
participation gives the operator a voice in the merits of the award and
the opportunity to challenge an award if it disagrees with it.
Consequently, the Department believes that the availability of
penalties to foster prompt compliance with the terms of an award is
warranted, even if the operator pursues an appeal. Section 725.502
implements the Congressional mandate that individual coal mine
operators bear the burden of paying benefits whenever liability exists.
(c) One comment objects that Congress never intended to require a
responsible operator to pay retroactive benefits before an award
becomes final in claims filed after 1981. In general, the party liable
for the payment of a claim must pay all benefits due under the terms of
an award when that award becomes effective. Congress has permitted one
exception. Under 26 U.S.C. 9501(d)(1)(A), the Trust Fund will pay
benefits on a claim filed after January 1, 1982 ``only for benefits
accruing after the date of such initial determination'' if the Fund is
paying interim benefits on behalf of an operator who has not made a
payment which is due. This statutory exception, by its language,
applies only to the Fund, and only to interim benefits payments. In all
other situations, the claimant is entitled to the full payment of
benefits authorized by the award even if litigation continues. If
payments are withheld by the operator until the award becomes final in
a post-1981 claim, the operator must pay interest as well. 30 U.S.C.
932(d). Contrary to the commenter's view, Congress clearly intended
responsible operators to pay retroactive benefits as well as monthly
benefits immediately when a claimant's entitlement is established by an
effective benefits award.
(d) One comment objects to the requirement in paragraph (b)(2) that
an operator must pay retroactive benefits despite continuing litigation
over the propriety of the award itself. The commenter argues that an
operator has no realistic chance of recovering the benefits if the
award is ultimately reversed, and suggests the Trust Fund should
reimburse an operator who pays retroactive benefits. A right to
benefits established by an award, however, cannot be conditioned on the
likelihood the operator will recover the benefits if the claimant is
ultimately found ineligible. If the claimant has a present right to
receive benefits, then the operator must pay according to the terms of
the award without regard to the possibility of a later reversal. The
terms of the award include all benefits to which the miner is entitled,
including retroactive benefits. The Department also rejects the
suggestion that the Fund reimburse any operator who pays retroactive
benefits but thereafter defeats the claim. The Fund is not authorized
to reimburse operators except for those claims for which liability has
transferred to the Fund pursuant to law. See 26 U.S.C. 9501(d)(6), (7).
(e) One comment suggests three additions to this section: (i) a
requirement that the Trust Fund pay interim benefits if a responsible
operator obtains a stay of payments pursuant to 33 U.S.C. 921(c), as
incorporated by 30 U.S.C. 932(a), until the stay is dissolved; (ii)
clarification that a responsible operator must pay benefits during the
pendency of its modification petition until the petition is granted;
and (iii) language stating that an administrative law judge's award
becomes final despite any order leaving the computation of benefits to
the district director. No changes are necessary in response to the
commenter's suggestion. (i) The Department agrees that the Trust Fund
must pay benefits on an interim basis if the operator obtains a stay of
payments. This obligation derives from Section 9501 of the Internal
Revenue Code, which defines the Fund's operation and payment
obligations. 26 U.S.C. 9501. The expenditures which the Fund may
undertake include the payment of benefits when the operator liable for
benefits ``has not made a payment within 30 days after that payment is
due[.]'' 26 U.S.C. 9501(d)(1)(A)(ii). If an operator obtains a stay and
a benefit payment comes due during the pendency of the stay, the Trust
Fund will make the payment. (ii) Clarification of an operator's
benefits obligation during modification proceedings is unnecessary.
Section 725.502(a)(1) is unambiguous: ``An effective order shall remain
in effect unless it * * * is superseded by an effective order issued
pursuant to Sec. 725.310'' (regulation implementing modification). Once
an effective order exists requiring an operator to pay benefits, the
operator must pay until that order is overturned. Filing a modification
petition does not supersede an otherwise effective award. The petition
merely initiates the process to reopen the award. During the pendency
of the modification proceedings and prior to entry of an effective
decision on modification, the terms of the existing decision prevail,
[[Page 55001]]
and the operator must pay benefits in compliance with that decision.
(iii) The commenter cites Keen v. Exxon Corp., 35 F.3d 226 (5th Cir.
1994), as a potential loophole to the finality of administrative law
judge decisions. In Keen, an administrative law judge approved a claim
under the Longshore and Harbor Workers' Compensation Act, but ordered
the district director to calculate the amount of compensation due. The
employer paid the benefits within ten days of the district director's
order rather than the administrative law judge's decision. The Court
acknowledged that the employer possessed sufficient information to
determine for itself the amount of benefits due, rather than wait for
the district director's findings. The Court, however, stressed that the
administrative law judge's decision was not "final" precisely because
it required the district director to make the actual computation. No
change in the regulations is necessary to account for the practice
followed by the administrative law judge in Keen. Section 725.502(a)(2)
states that an administrative law judge's order becomes "effective"
when it is filed in the office of the district director. Once an
administrative law judge's order is effective, benefits are due under
Sec. 725.502(a)(1) and "shall be paid." In any event, orders akin to
the one issued in Keen are rarely, if ever, used in the black lung
program. Awards by administrative law judges ordinarily identify the
number of beneficiaries and the onset date(s) for payment. The amount
of the prospective benefits to be paid within these parameters is fixed
by law; no independent computation by the district director is
therefore needed. Moreover, the Department has already placed the
burden of computing the retroactive benefits on the district director
in Sec. 725.502(b)(2), and made clear that those benefits are not due
until the district director issues an order setting the amount. Since
Sec. 725.502(b)(1) is unambiguous that prospective benefits must
commence by a date certain once an award is effective, the operator
cannot use the corollary order for retroactive benefits as a pretext to
avoid paying the prospective benefits.
20 CFR 725.503
Several comments take issue with the Department's treatment of the
date from which benefits are payable in cases in which a factfinder
grants modification on the ground of a change in conditions. One
comment urges the Department to require that when the evidence does not
establish the specific month in which the miner became totally disabled
due to pneumoconiosis, benefits be made retroactive to the date of the
adverse decision that was the subject of modification. Another comment
states that the revised proposal permits the payment of benefits before
the onset of the miner's totally disabling pneumoconiosis, in violation
of incorporated provisions of the Longshore Act.
The Department's initial proposal could have led to considerable
litigation as to the date from which benefits should be paid in change
of condition cases. The Department now proposes a different method to
determine this commencement date, one which will give preclusive effect
to an earlier factfinder's denial, but will also be relatively easy to
apply. In all other successful miners' claims, benefits are awarded as
of the month of onset of the miner's totally disabling pneumoconiosis.
If that month cannot be established, benefits are payable from the
month in which the miner filed his application, based on the logical
premise that the filing date would be relatively close to the date on
which the miner believed that he was entitled to benefits. This method
has worked well in the adjudication of black lung claims in general,
and the Department is therefore proposing a similar method for
determining the commencement date in change of condition cases.
Although every effort will be made to determine the precise date on
which the miner became totally disabled due to pneumoconiosis, the date
on which the miner requested modification of a previous denial
represents an equitable fallback in cases in which the evidence is
insufficient to resolve the issue. In determining the commencement
date, a factfinder may award benefits prior to the date of the
modification request only where credible medical evidence demonstrates
that the miner's pneumoconiosis became totally disabling prior to that
date. In no event may such evidence be used to justify an award which
predates the effective date of the most recent factfinder's denial of
the claim. Conversely, a factfinder may not award benefits retroactive
to the date of the request where more recent credible evidence
demonstrates that the miner did not become totally disabled until a
later date.
20 CFR 725.515
The Department did not propose revisions to Sec. 725.515 in its
initial notice of proposed rulemaking, 62 FR 3338 (Jan. 22, 1997). The
Department has since determined that the regulation should be amended
to conform it to applicable law. Section 16 of the Longshore and Harbor
Workers' Compensation Act prohibits the garnishment of benefits, 33
U.S.C. 916; this provision is incorporated into the Black Lung Benefits
Act. 30 U.S.C. 932(a). Section 725.515 implements section 16. 20 CFR
725.515. In 1975, Congress enacted section 459 of the Social Security
Act, 42 U.S.C. 659, to permit the garnishment of federal pay and
benefits for alimony and child support obligations. Congress thereafter
amended the garnishment provisions in 1977 to clarify their
applicability to benefits payments made by the federal government;
black lung benefits were specifically excluded from coverage. Congress
removed the exclusion, however, in 1996 legislation, which became
effective on February 22, 1997. Pub. L. No. 104-193, Sec. 362(d), 110
Stat. 2247. Thus, black lung benefits paid by the Black Lung Disability
Trust Fund are subject to garnishment for child support and alimony.
The Office of Personnel Management (OPM) is authorized to issue
garnishment regulations for the Executive Branch implementing 42 U.S.C.
659. Exec. Order No. 12,105, 43 FR 59,465 (Dec. 19, 1978). OPM recently
amended its regulations to conform to the 1996 amendments and permit
garnishment of federal black lung benefits paid by the Trust Fund. 63
FR 14,756, 14,758 (March 26, 1998) (to be codified at 5 CFR
581.103(c)(6)). Because 42 U.S.C. 659 is a waiver of sovereign
immunity, however, it does not alter any anti-alienation provision
governing payments by private parties. See generally Moyle v. Director,
OWCP, 147 F.3d 1116 (9th Cir. 1998), pet. for cert. filed, No. 98-927
(Dec. 3, 1998) (holding that 42 U.S.C. 659 authorizes garnishment of
longshore benefits payable by the Special Fund to satisfy beneficiary's
obligation to pay alimony despite 33 U.S.C. 916, which applies only to
private employers or insurers). Consequently, 20 CFR 725.515 must be
amended to reflect the limitations on the coverage of section 16:
benefits payments by a responsible operator cannot be garnished to
satisfy alimony or child support obligations, while payments which are
the liability of the Trust Fund can be garnished.
20 CFR 725.533
Section 725.533 was not among the provisions which the Department
opened for comment in its previous notice of proposed rulemaking, 62 FR
3341 (Jan. 22, 1997). In connection with the proposed deletion of
section 725.403, however, which governs claims filed under section 415
of the Act, 30 U.S.C. 925, the Department proposes
[[Page 55002]]
corresponding deletions to paragraphs (b) and (c) of section 725.533.
These paragraphs govern the payment of benefits in section 415 claims.
Paragraphs (d)-(g) have been redesignated paragraphs (b)-(e). The
Department does not intend to alter the rules applicable to any section
415 claim that may still be in litigation, and 20 CFR 725.533(b), (c)
will remain applicable to any such claim. Parties interested in
reviewing section 725.533 may consult earlier editions of the Code of
Federal Regulations or the Federal Register in which the regulation was
originally published. The Department invites comment on whether section
725.533 should be retained in the Code of Federal Regulations.
20 CFR 725.543
Section 725.543 was not among the provisions which the Department
opened for comment in its previous notice of proposed rulemaking, 62 FR
3341 (Jan. 22, 1997), and the Department did not receive any comments
specifically directed to this section. The Department did receive a
number of general comments critical of the application of the criteria
used to determine whether recoupment of an overpayment would defeat the
purposes of title IV of the Federal Coal Mine Health and Safety Act or
would be against equity and good conscience. Although the Black Lung
Benefits Act incorporates these waiver criteria from the Social
Security Act, 30 U.S.C. 923(b), 940, incorporating 42 U.S.C. 404(b),
Sec. 725.543 currently incorporates the regulations promulgated by the
Social Security Administration under its administration of Part B of
the Black Lung Benefits Act. Because virtually no new applications for
benefits are filed under Part B, it is unlikely that the Part B
regulations will be amended to reflect new interpretations of the
statutory criteria by the Social Security Administration and the
federal courts. In fact, the Part B regulations currently incorporated
in Sec. 725.543 which define "fault," ``defeat the purpose of title
IV,'' and "against equity and good conscience," Secs. 410.561b,
410.561c, and 410.561d, were last published in the Federal Register in
1972. By contrast, the regulations governing claims under Title II of
the Social Security Act, contained in 20 CFR Part 404, have been
amended to keep pace with current law. Accordingly, the Department
proposes to amend section 725.543 to incorporate Social Security's more
current standards for establishing waiver of recovery of an
overpayment.
20 CFR 725.544
Section 725.544 was not among the regulations which the Department
opened for comment in its previous notice of proposed rulemaking, 62 FR
3341 (Jan. 22, 1997). One comment pointed out, however, that current
law allows agencies of the United States to compromise claims of the
United States government of not more than $100,000. The Department
proposes to amend the regulation to reflect this change, and to delete
the reference to the Federal Claims Collection Act of 1966, which has
been repealed. The relevant provision governing compromise of claims by
the United States is now codified in the United States Code at 31
U.S.C. 3711.
20 CFR 725.547
(a) The original proposal extended the right to seek waiver of
recovery of an overpayment to all claimants, without regard to whether
recovery was sought by a responsible operator or the Black Lung
Disability Trust Fund. Many commenters urge the Department to
promulgate rules governing recovery of overpayments based on the
incorporated provisions of the Longshore and Harbor Workers'
Compensation Act, 33 U.S.C. 914(j), 922, as incorporated by 30 U.S.C.
932(a). Pursuant to these provisions, overpaid amounts may be recovered
only by withholding future benefit payments. Other commenters object to
the proposal on the ground that it will make more difficult operator
recovery of overpayments. The policy considerations governing this
regulatory revision were fully discussed in the Department's original
proposal, 62 FR at 3366-3367 (Jan. 22, 1997), and the comments suggest
no new basis for further change.
(b) Several comments state that this rule would unconstitutionally
deprive operators of property rights, while other comments argue that
it would deprive operators of an effective right of appeal. The process
used to adjudicate applications for black lung benefits provides coal
mine operators with the right to notice and the opportunity for a
hearing before the issuance of an effective award, the only award which
mandates payment by a coal mine operator. Federal courts have
considered similar allegations with respect to the entitlement
adjudication scheme used under the Longshore Act, a scheme identical to
that used to adjudicate claims for black lung benefits, and have
unanimously concluded that the Longshore Act does not violate
employers' constitutional rights. Schmitt v. ITT Federal Electric
Int'l., 986 F.2d 1103 (7th Cir. 1993); Abbott v. Louisiana Insurance
Guaranty Ass'n., 889 F.2d 626 (5th Cir. 1989), cert. denied, 494 U.S.
1082 (1990). Because the Longshore Act is even more restrictive
regarding an employer's right to recover an overpayment than the
Department's proposed black lung benefits regulations, see 62 FR 3366
(Jan. 22, 1997), the Department does not agree that the proposed scheme
is unconstitutional. Similarly, there is no constitutionally recognized
right of appeal. As under the Longshore and Harbor Workers'
Compensation Act, operators may appeal in order to reduce their future
benefit obligations, but success on appeal does not necessarily mandate
the repayment of all previously paid benefits. Moreover,
notwithstanding the proposal, coal mine operators may seek recoupment
of any overpaid amounts. In fact, they are entitled to repayment
provided the claimant is not entitled to waiver. These waiver
provisions have been used by the Department throughout its
administration of Part C of the Act to determine whether an overpaid
claimant must repay amounts owed the Black Lung Disability Trust Fund.
The Department's experience clearly demonstrates that application of
these waiver criteria does not wholly foreclose the recoupment of
overpaid amounts.
(c) One comment states that the Department's legal analysis of the
overpayment issue neglected Sec. 430 of the Black Lung Benefits Act, 30
U.S.C. 940. Section 430 provides that the provisions of the Black Lung
Benefits Act of 1972, the Black Lung Benefits Reform Act of 1977, and
the Black Lung Benefits Amendments of 1981 applicable to Part B of the
Black Lung Benefits Act shall also apply, as appropriate, to Part C of
the Act. None of these statutory enactments prohibits the Department
from applying the same waiver criteria to the recoupment of overpaid
amounts by both operators and the Black Lung Disability Trust Fund.
(d) Several comments address the test used to determine whether or
not claimants are entitled to waiver of recoupment, Secs. 725.542,
725.543. The Department also heard considerable testimony at both
hearings on the overpayment issue. The Department does not contemplate
changing the legal test for waiver since it is based on statutory
language incorporated into the BLBA from the Social Security Act, 30
U.S.C. 923(b), 940, incorporating 42 U.S.C. 404(b). The Department has
altered Sec. 725.543 to make the Department's interpretation of these
criteria consistent with the current
[[Page 55003]]
Social Security Administration standards.
20 CFR 725.548
In both its current version and the Department's proposed revision,
section 725.547 is titled ``Applicability of overpayment and
underpayment provisions to operator or carrier.'' Despite this title,
the regulation contains two paragraphs, (c) and (d), that are intended
to apply to overpayment and underpayment issues regardless of whether
the Black Lung Disability Trust Fund or a responsible operator is
liable for the payment of benefits. These paragraphs authorize the
district director to enter appropriate orders to protect the rights of
the parties with regard to overpayments or underpayments, and provide
that disputes arising out of such orders are to be resolved using the
same procedures used to resolve entitlement and liability issues. In
reviewing its proposed revision to section 725.547, the Department
realized that the title of the regulation might mislead parties into
believing that paragraphs (c) and (d) are applicable only in cases
involving responsible operator liability. Because the Department
intends that the same procedures be used to adjudicate overpayment and
underpayment issues regardless of the liable party, the Department
proposes that paragraphs (c) and (d) be relocated in a separate
regulation with a more general title. Consequently, the Department
proposes the addition of section 725.548, titled ``Procedures
applicable to overpayments and underpayments.''
Subpart I
20 CFR 725.606
(a) Paragraph (c), as originally proposed, contains a typographical
error. In the first sentence, the second reference to paragraph (a)
should be a reference to paragraph (b). Paragraph (b) describes the
amount of negotiable securities which an employer must deposit with a
Federal Reserve Bank to secure the payment of benefits.
(b) One comment disagrees generally with the requirement for post-
award security by coal mine construction employers, and the imposition
of personal benefits liability on certain corporate officers if the
employer fails to obtain security. The objection to post-award security
is unfounded because the Black Lung Benefits Act authorizes it. Any
operator of a coal mine, as defined by 30 U.S.C. 802(d), is required to
obtain insurance or qualify as a self-insurer to ensure its financial
ability to meet its potential benefits liabilities. 30 U.S.C. 933(a).
Section 422(b) excepts certain employers engaged in coal mine
construction or transportation from these requirements, provided they
are not also operators of coal mines. 30 U.S.C. 932(b). The exception
effectively permits these employers to confront their liabilities as
they occur on a claim-by-claim basis, rather than anticipate funding
for their liabilities through insurance or self-insuring. Section
422(b), however, further states: ``Upon determination by the Secretary
of the eligibility of the employee, the Secretary may require [a coal
mine construction or transportation] employer to secure a bond or
otherwise guarantee the payment of such benefits to the employee.'' 30
U.S.C. 932(b). Although these employers need not insure themselves
against prospective liability, they may be required to secure benefits
once a claim is awarded. If the employer fails or refuses to obtain
security for an existing award after being ordered to do so, that
employer is no different than a coal mine operator who does not fulfill
its legal obligation to insure or self-insure its potential liability
for future awards. While the statute provides several coercive remedies
against such employers, section 423(d)(1) also authorizes the
Department to impose liability, in the case of a corporation, on its
president, secretary and treasurer for any benefits which accrue during
the period of the corporation's dereliction. No reason exists to treat
corporate officers of a construction or transportation firm differently
from corporate officers of a coal mine operator. In either case, the
employer is legally required (by the statute or Secretary's order) to
secure its liability, and has failed to satisfy that requirement.
Section 423(d)(1) simply provides the Department with one tool to
enforce the liable employer's obligation.
The same commenter also states that proposed Sec. 725.606 addresses
a nonexistent problem because the construction industry already
complies with its obligations. The commenter's observation does not
provide a legal basis for excluding construction companies from the
employer community subject to security requirements imposed by statute.
The original notice of proposed rulemaking, 62 FR 3367-3368 (Jan. 22,
1997), describes the Department's objectives for improving and
clarifying the operation of the security provisions. The possible
absence of a significant problem does not relieve the Department of its
responsibility to identify all parties' obligations under the Black
Lung Benefits Act and to set forth more efficient procedures to enforce
them.
(c) One comment supports requiring the posting of security for the
payment of benefits by coal mine construction and transportation
employers.
Subpart J
20 CFR 725.701
(a) A number of commenters objected to the Department's initial
proposal governing the compensability of medical benefits, because it
included a rebuttable presumption that if a miner receives treatment
for a pulmonary disorder, that disorder is caused or aggravated by the
miner's pneumoconiosis. 62 FR 3423 (Jan. 22, 1997). Several commenters
argued that this presumption would impose significantly greater costs
on responsible operators and result in the payment of medical bills
related to smoking. Others argued that the Department had no authority
to promulgate such a presumption and that the presumption was medically
unsound. The Department disagrees and believes that the proposed
presumption is both appropriate and necessary.
In its initial notice of proposed rulemaking, the Department cited
the Fourth Circuit's decision in Doris Coal Co. v. Director, OWCP, 938
F.2d 492 (4th Cir. 1991), in support of its proposal to codify a
rebuttable presumption that treatment that a miner receives for a
pulmonary condition, as described in Sec. 725.701, represents treatment
for the miner's pneumoconiosis and therefore is compensable. As
proposed, this presumption would be available only to miners who have
established their total disability due to pneumoconiosis arising out of
coal mine employment and are therefore already entitled to monthly cash
benefits. The presumption would also apply only to treatment,
enumerated in the regulation, for a pulmonary disorder. The presumption
could be rebutted by evidence demonstrating that the condition for
which the miner received treatment was unrelated to, and was not
aggravated by, the miner's pneumoconiosis.
Since publication of the Department's initial notice of proposed
rulemaking, the Sixth Circuit has also issued a decision addressing the
compensability of medical expenses incurred as a result of treatment
for totally disabling pneumoconiosis. In Glen Coal Co. v. Seals, 147
F.3d 502 (6th Cir. 1998), a majority of the panel (Judges Dowd and
Boggs) held that the administrative law judge and the Benefits Review
Board
[[Page 55004]]
had erred in applying the Doris Coal presumption to a miner whose coal
mine employment took place within the jurisdiction of the Sixth
Circuit. Although Judge Dowd's majority opinion would have invalidated
the presumption on a number of grounds, including its inconsistency
with Congressional intent underlying the BLBA, see 147 F.3d at 513,
Judge Boggs's concurrence (necessary for the majority's holding) did
not extend so far. Instead, Judge Boggs specifically noted that he
would ``agree with the dissent (and disagree with Judge Dowd) that it
would not necessarily contravene Greenwich Collieries for the Secretary
to adopt a regulation shifting the burden of production in the manner
of Doris Coal.'' Id. at 517. Finally, Judge Moore's concurring and
dissenting opinion would have upheld the Doris Coal presumption on
deference grounds.
Recently, the Fourth Circuit clarified the presumption it created
in Doris Coal. In Gulf & Western Indus. v. Ling, __F.3d__, 1999 WL
149851 (4th Cir. Mar. 19, 1999), the court held that the Doris Coal
presumption does not shift the burden of persuasion to the employer to
prove that the miner's respiratory or pulmonary treatment was not
related to black lung disease. Rather, the burden of proving that the
medical expense is covered by the black lung benefits award remains
always on the miner. The Doris Coal presumption simply eases the
miner's initial burden by allowing the miner to present a bill for
treatment of his respiratory or pulmonary disorder or related symptoms.
If the employer then
produces credible evidence that the treatment is rendered for a
pulmonary disorder apart from those previously associated with the
miner's disability, or is beyond that necessary to effectively treat
a covered disorder, or is not for a pulmonary disorder at all, the
mere existence of a medical bill, without more, shall not carry the
day. The burden of persuading the factfinder of the validity of the
claim remains at all times with the miner.
1999 WL 149851 at *5.
The Department believes that black lung benefit claims adjudication
should vary as little as possible from circuit to circuit, and
consequently has proposed a regulatory presumption that would apply
nationwide. Like any agency, however, the Department may only
promulgate a regulatory presumption when there exists a rational
connection between the proven facts and the presumed facts. Chemical
anufacturers Association v. Department of Transportation, 105 F.3d
702, 705 (D.C. Cir. 1997); NLRB v. Baptist Hosp., Inc., 442 U.S. 773,
787 (1979). The proposed Sec. 725.701 presumption would arise only
after the miner establishes that he suffers from totally disabling
pneumoconiosis arising out of coal mine employment, a fact that must be
considered conclusively proven absent a successful request for
modification from the responsible operator or fund. In addition, before
invocation of the presumption, the miner must show that he received
medical treatment within the scope of Sec. 725.701 for a respiratory or
pulmonary condition. Thus, prior to invocation of this presumption, the
miner has demonstrated by means of credible medical evidence that he
suffers from a compensable total disability. In addition, the miner has
established that he received treatment covered by the proposed
regulation for a pulmonary disorder. The Department's proposal would
presume only one fact: that the pulmonary treatment for which the miner
seeks payment was for his already-established totally disabling
pneumoconiosis.
The Department's proposed definition of pneumoconiosis demonstrates
the rational connection between the facts the miner must prove and the
resulting presumption. Pursuant to proposed Sec. 718.201, which has
been endorsed by the National Institute of Occupational Safety and
Health, a miner who has established the existence of pneumoconiosis has
necessarily established that he suffers from a ``chronic pulmonary
disease or respiratory or pulmonary impairment significantly related
to, or substantially aggravated by, dust exposure in coal mine
employment.'' Sec. 718.201(b); see also 20 CFR 718.201 (1998).
Consequently, any treatment for the miner's compromised respiratory or
pulmonary condition suggests, even if it does not conclusively
demonstrate, that the miner's previous dust exposure has contributed to
the need for that treatment. In addition, the miner's proof that he is
totally disabled due to pneumoconiosis establishes that his
pneumoconiosis is a substantially contributing cause of his total
disability. Sec. 718.204(c). This fact also suggests that the treatment
of the miner's respiratory or pulmonary system is made necessary by his
pneumoconiosis. Finally, the Department notes that it receives 12,000
to 15,000 medical bills per week, most of which are for relatively
small amounts, $25.00 to $75.00. The Department must process these
claims in a cost effective and prompt manner. The Department believes
that it would be unreasonable to require miners to prove that each
treatment expense is for pneumoconiosis when: (1) Each miner has
already proven that he is totally disabled by pneumoconiosis arising
out of coal mine employment; (2) the bills are for treatment of a
pulmonary disorder, and (3) the bills are generally for relatively
small amounts. In such circumstances, the Department believes it
appropriate to presume that the miner's treatment for a pulmonary
disorder is treatment for pneumoconiosis. The Department also believes
it appropriate to require coal mine operators to produce credible
evidence that the disorder being treated is neither related to nor
aggravated by pneumoconiosis in order to escape liability. The
Department does not agree, however, that the presumption will require
operators to pay for medical treatment attributable to smoking alone.
Operators remain free to rebut the presumption in such cases with
appropriate medical evidence.
(b) The Department proposes to delete the reference in subsection
(b) to "ancillary pulmonary conditions." In light of the confusion
reflected in Judge Dowd's majority opinion in Seals, and given the
broad statutory and regulatory definition of the term
"pneumoconiosis," the Department does not believe that this language
is necessary. The proposed revision is not intended to narrow the scope
of medical benefits available under the Black Lung Benefits Act. Under
subsections (b) and (c), a broad range of medical services and supplies
will be considered necessary for the treatment of a miner's
pneumoconiosis. The proposed presumption in subsection (e) will further
ensure that miners who have been determined to be totally disabled due
to pneumoconiosis are compensated for any medical service or supply
necessary for the treatment of a pulmonary condition unless the
responsible operator or fund can prove that the medical service or
supply was not for a covered pulmonary disorder as defined in
Sec. 718.201. In order to further clarify the Department's intent, the
Department proposes to revise the language in subsection (e) by
replacing the word "treatment" with the phrase, ``medical service or
supply.'' This change is intended to ensure that the subsection (e)
presumption covers any medical supply or service that may be considered
necessary under subsections (b) and (c).
The Department also proposes to amend the language in subsection
(f) to clarify its intent. Evidence which is inconsistent with the
established facts underlying the miner's entitlement to benefits cannot
be used to show that the treatment is not compensable. An
[[Page 55005]]
attempt to use such evidence in this context would amount to
impermissible relitigation of facts which have been finally determined.
In determining whether the treatment is compensable, a treating
physician's opinion may be entitled to controlling weight pursuant to
Sec. 718.104(d). In addition, a finding that a particular medical
service or supply is not compensable shall not otherwise affect the
miner's entitlement to benefits.
20 CFR Part 726--Black Lung Benefits; Requirements for Coal Mine
Operators' Insurance
Subpart A--General
20 CFR 726.8
(a) In the initial notice of proposed rulemaking, the Department
proposed new definitions of "employ'' and ``employment" which apply
to both Part 725 and 726. See 62 FR 3410 (Sec. 725.493(a)(1)), 3426
(Sec. 726.8(d)) (Jan. 22, 1997). The definitions were identical. For
the reasons set forth in the response to comments concerning
Sec. 725.493(a)(1), the Department has determined that more specific
language defining "employment" is appropriate to clarify its purpose.
The same change is incorporated into Sec. 726.(8)(d) for the same
reason.
(b) One comment contends that section 726.8(d) is "illegally"
retroactive in operation and creates unfunded liabilities for insurance
carriers by expanding coverage. For the reasons set forth in the
response to comments concerning Sec. 725.2, the Department does not
believe that the retroactive application of regulatory changes is
prohibited, or the instrument for the creation of additional liability.
The same commenter also states that the proposed regulatory
definitions intrude on insurance functions reserved for the states.
Because the commenter does not cite any legal authority or identify
which state functions the proposed regulation affects, the Department
is unable to determine the commenter's precise concerns. Moreover, the
Seventh Circuit has held that the Black Lung Benefits Act
``specifically relates to the business of insurance and therefore does
not implicate the McCarran-Ferguson Act,'' 15 U.S.C. 1012, which
confers primacy on state law for the regulation of the insurance
industry unless a conflicting federal statute specifically provides
otherwise. Lovilia Coal Co. v. Williams, 143 F.3d 317, 325 (7th Cir.
1998). The commenter's objection therefore provides no basis for the
further revision of this regulation.
(c) Two comments state that the proposed definitions are overbroad
and make impossible the identification of which employees are covered
by an insurance policy. The Department disagrees. The definition of
"employee'' must be read in context with the definition of ``miner"
in Sec. 725.202. Only coal miners (and their survivors) are entitled to
benefits under the Black Lung Benefits Act, and only those individuals
are of concern to an insurance carrier writing a policy under the Act.
In determining whether a particular employee is covered by the
insurance policy, the insurer must determine whether the individual is
a "miner" as defined by the Act and Sec. 725.202. The insurer
therefore must conduct a thorough investigation of the employer's
business, the nature of the contacts with the coal mining industry, and
the type of work each employee performs. This information will provide
the basis for calculating the premium necessary for full coverage of
the employer's potential liabilities. The burden of covering the
responsible operator's liability and obtaining an appropriate premium
rests on the insurer. See Lovilia Coal Co. v. Williams, 143 F.3d 317,
323 (7th Cir. 1998) (holding that insurance carrier must cover
operator's entire liability under the Act and ``bears the burden of
collecting proper premiums for all covered miners.''). Finally, the
Department notes that the goal of broad insurance coverage for
employees implements Congress' express intent to hold the coal mine
operator community liable for individual claims to the maximum extent
possible. See S. Rep. No. 95-209, reprinted in Comm. On Education and
Labor, House of Representatives, 96th Cong., ``Black Lung Benefits
Reform Act and Black Lung Benefits Revenue Act of 1977'' (Comm. Print)
at 612. Section 726.8(d) reflects the Department's policy to vigorously
effectuate that intent. Because an insurance carrier assumes the
responsibility for benefits ascribed to its insured operator, that
responsibility must encompass every employee of the operator who
qualifies as an eligible miner under the Act. Williams, 143 F.3d at
323; see also National Mines Corp. v. Carroll, 64 F.3d 135, 140 (3d
Cir. 1995); Tazco, Inc. v. Director, OWCP, 895 F.2d 949, 951 (4th Cir.
1990).
Subpart C
20 CFR 726.3
Section 726.3 was not among the regulations which the Department
opened for comment in its previous notice of proposed rulemaking. 62 FR
3350 (Jan. 22, 197). In reviewing the current proposal for publication,
the Office of the Federal Register requested that the Department revise
paragraph (b) in order to clarify how cases will be treated when the
regulation in Part 726 appear to conflict with regulations incorporated
from 725. This revision is not intended to make any substantive change
in the regulation. In addition, the Department is removing references
to Parts 715 and 720 from paragraph (a). Those parts were repealed in
1978, 43 FR 36772 (Aug. 18, 1978), and the regulations they contained
should no longer be considered applicable to Part 726.
Subpart C
20 CFR 726.203
Section 726.203 was not among the regulations which the Department
opened for comment in its previous notice of proposed rulemaking. 62 FR
3341 (Jan. 22, 1997). At the Washington, D.C. hearing, however, the
Department heard testimony indicating that the insurance industry has
used a different version of the endorsement contained in subsection (a)
since 1984. An insurance industry representative testified that the
change was ``acknowledged by the department as language acceptable for
securing workers compensation under the federal Act.'' Transcript,
Hearing on Proposed Changes to the Black Lung Program Regulations, July
22, 1997, p. 127 (testimony of Robert Dorsey). In its written comments,
the insurance industry noted that after notification of changes in the
insurance policy language, ``the Department agreed that the new
endorsements were acceptable.'' The version provided by the insurance
industry states as follows:
This endorsement applies only to work in a state shown in the
Schedule and subject to the Federal Coal Mine Health and Safety Act of
1969 (30 USC Sections 931-942). Part One (Workers Compensation
Insurance) applies to that work as though that state were shown in item
3.A. of the Information Page.
The definition of workers compensation law includes the Federal
Coal Mine Health and Safety Act of 1969 (30 U.S.C. Sections 931-942)
and any amendment to that law that is in effect during the policy
period.
Part One (Workers Compensation Insurance), section A.2., How This
Insurance Applies, is replaced by the following:
Bodily injury by disease must be caused or aggravated by the
conditions of your employment. The employee's last day of last
exposure to the conditions causing or aggravating such bodily injury
by disease must occur during the policy period or, when the last
exposure occurred prior to July 1, 1973, a claim based on that
disease must be
[[Page 55006]]
first filed against you during the policy period shown in item 2 of
the Information Page.
Schedule
State
Following the hearing, the Department searched its records.
Although those records reflect a meeting with a representative of the
insurance industry in 1984, the Department was unable to find any
document authorizing the use of the different endorsement. If the
insurance industry has such a document in its files, the Department
requests that it send it to James L. DeMarce at the address listed in
this notice. In addition, to allow thorough evaluation of the
endorsement the industry now suggests, the insurance industry should
supply the Department with a copy of the insurance policy to which the
endorsement is attached. Finally, although it is not currently
proposing revision of Sec. 726.203, the Department requests comment on
the possible use of this endorsement. In preparing those comments,
individuals should take note of the Department's requirement in
Sec. 726.205 that endorsements other than those provided by
Sec. 726.203 may be used provided they do not ``materially alter or
attempt[] to alter an operator's liability for the payment of any
benefits under the Act * * *'' 20 CFR 726.205.
Drafting Information, this document was prepared under the
direction and supervision of Bernard Anderson, Assistant Secretary of
Labor for Employment Standards.
The principal authors of this document are Rae Ellen James, Deputy
Associate Solicitor; Richard Seid, Counsel for Administrative
Litigation and Legal Advice; and Michael Denney, Counsel for
Enforcement, Black Lung Benefits Division, Office of the Solicitor,
U.S. Department of Labor. Personnel from the Division of Coal Mine
Workers' Compensation, Office of Workers' Compensation Programs,
Employment Standards Administration, U.S. Department of Labor, assisted
in the preparation of the document.
Executive Order 12866
The Office of Information and Regulatory Affairs of the Office of
anagement and Budget has determined that the Department's proposed
rule represents a "significant regulatory action" under section
3(f)(4) of Executive Order 12866 and has reviewed the rule.
Unfunded Mandates Reform Act
For purposes of the Unfunded Mandates Reform Act of 1995, as well
as E.O. 12875, this rule does not include any federal mandate that may
result in increased expenditures by State, local and tribal
governments, or increased expenditures by the private sector of more
than $100 million.
Paperwork Reduction Act
The proposed changes would establish no new record keeping
requirements. Moreover, they seek to reduce the volume of medical
examination and consultants' reports which are currently created solely
for the purpose of litigation by limiting the amount of such medical
evidence which will be admissible in black lung proceedings.
Regulatory Flexibility Act, as Amended
The Regulatory Flexibility Act ("RFA") was enacted by Congress in
1980 ``to encourage administrative agencies to consider the potential
impact of nascent federal regulations on small businesses.'' Associated
Fisheries of Maine, Inc. v. Daley, 127 F.3d 104, 111 (1st Cir. 1997).
Unless the agency is able to certify that the rule will not have ``a
significant economic effect on a substantial number of small
entities,'' 5 U.S.C. 605, each agency that publishes a notice of
proposed rulemaking must prepare an ``initial regulatory flexibility
analysis'' describing the impact of the proposed rule on small
entities. 5 U.S.C. 603(a). That analysis, or a summary of the analysis,
must be published in the Federal Register when the notice of proposed
rulemaking is published, and a copy of the analysis must be sent to the
Chief Counsel for Advocacy of the Small Business Administration.
In its initial notice of proposed rulemaking, the Department
certified that the proposed revisions would not have a significant
effect on a substantial number of small businesses. 62 FR 3371-73 (Jan.
22, 1997). The Department's certification was criticized by both the
coal mining industry and the Small Business Administration's Office of
Advocacy. Industry argued that the Department had grossly
underestimated the effect of the proposed rule. The Office of Advocacy
observed that the Department had not used the size standards
established by the Small Business Administration, and that the
Department did not provide a factual basis for its certification. In
particular, the Office of Advocacy took issue with the Department's
interpretation of the term "significant economic effect."
In light of the concerns raised by the commenters, the Department
has determined that an initial regulatory flexibility analysis is
appropriate. The RFA mandates that each analysis contain certain
components: (1) a statement of the reasons for issuing the proposed
rule; (2) a statement of the objectives of, and legal basis for, the
proposed rule; (3) a description and, where feasible, an estimate of
the number of small businesses to which the rule will apply; (4) a
description of projected reporting, recordkeeping, and other compliance
requirements of the proposed rule; and (5) an identification of any
rules that overlap, duplicate, or conflict with the proposed rule. 5
U.S.C. 603(a). Finally, the analysis must contain a description of
significant alternatives to the rule that accomplish the stated
objectives and minimize the significant economic impact on small
businesses, including the establishment of different compliance
requirements or exemptions for small businesses. 5 U.S.C. 603(b). In
determining the effects of a proposed rule, or alternatives to the
proposed rule, ``an agency may provide either a quantifiable or
numerical description of the effects * * * or more general descriptive
statements if quantification is not practicable or reliable.'' 5 U.S.C.
607. Once the analysis has been published in the Federal Register,
either in full or in summary form, the RFA also requires administrative
agencies to assure that small businesses have a full opportunity to
participate in the rulemaking by providing them with additional
notification. 5 U.S.C. 609.
Reasons for, and Objectives of, the Proposed Rule
The Department's proposal is intended to update the regulations
that implement that Black Lung Benefits Act. The Act provides both
monetary and medical benefits to miners who are totally disabled by
pneumoconiosis arising out of coal mine employment, and monthly
monetary benefits to the survivors of miners who die as a result of the
disease. These regulations establish: (1) the procedures used to
process and adjudicate benefit applications (Part 725); (2) the
criteria used to determine whether applicants are eligible for benefits
(Parts 718 and 727); (3) the requirements for coal mine operators who
must secure the payment of benefits (Part 726); and (4) the standards
for approving state workers' compensation programs (Part 722). The
Department has proposed revising these regulations in order to
accomplish several goals:
(1) A substantial number of the proposed rules would simply codify
decisions by the courts of appeals and the Benefits Review Board. In
many cases, these decisions were issued by courts with jurisdiction
over the states
[[Page 55007]]
in which most of the country's coal mining takes place, and thus
already govern the adjudication of a majority of claims. In order to
make sure all interested parties are aware of these decisions, and in
particular to ensure that claimants who are not represented by counsel
are not disadvantaged by being unaware of these decisions, the
Department is proposing to codify these decisions in its implementing
regulations. Codification of court decisions in rules of nationwide
applicability will ensure uniform treatment of the parties. The
Department's proposed revisions also codify changes to statutes other
than the Black Lung Benefits Act which affect the Department's
administration of the Act, including changes to the Social Security Act
governing garnishment, and the statute governing the collection of
debts owed the federal government.
(2) In addition, the Department is proposing these revisions to
make the adjudication of claims a more equitable process, and to ensure
that the affected public perceives the process as fair. For example,
the Department has proposed limiting the amount of documentary medical
evidence parties to a claim may submit in order to encourage the
parties to focus on the quality of the medical evidence they develop
instead of its quantity. The Department has also proposed requiring
that the factfinder recognize certain factors that may make the opinion
of the miner's treating physician worthy of more weight. Similarly, the
proposal would ensure that claimants who receive overpayments are
treated equally regardless of whether the overpayment was made by the
Black Lung Disability Trust Fund or a coal mine operator. Finally, the
Department has proposed revisions to the rules governing attorneys'
fees in an effort to make attorneys more willing to represent black
lung claimants.
(3) Several of the proposed revisions are designed to simplify the
regulatory language and clarify the Department's original intent when
the regulations were first promulgated. These proposals include
ensuring the uniform application of the quality standards to medical
evidence developed in connection with a black lung benefits claim and
refining the definitions of key terms such as "miner" and ``one
year.'' The Department has also proposed revisions to the regulations
governing the eligibility of dependents and survivors in order to
clarify the statute and insure implementation of Congressional intent.
(4) The Department has proposed several measures designed to
protect the Black Lung Disability Trust Fund, which pays claimants
benefits when no coal mine operator or insurer may be held liable.
Specifically, the Department proposes to revise the regulations
governing the imposition of civil money penalties on coal mine
operators that fail to secure the payment of benefits as required by
the Act, either by purchasing commercial insurance or by qualifying as
a self-insurer. The Department has also proposed revisions to the
process used to identify the party responsible for the payment of
benefits, including changes to regulations governing the submission of
evidence relevant to operator liability and the substantive criteria
used to determine such liability. Finally, the Department has proposed
revising the process by which uninsured coal mine operators, including
coal mine construction and transportation companies, may be compelled
to post security once they have been found liable for the payment of an
individual claim.
(5) A number of the regulatory proposals are designed to improve
the services the Department provides to parties to black lung benefits
claims. These proposals include revisions that streamline the
adjudication of claims, for example, by defining the parties'
obligation to attend an informal conference. They also include
revisions intended to ensure that beneficiaries receive all of the
benefits to which they are entitled in a timely manner. The Department
has proposed eliminating or replacing outdated regulations, such as
those governing the Department's certification of state workers'
compensation programs.
(6) Finally, the Department is proposing revisions that take into
account changes that have occurred over the past 20 years in the
diagnosis and treatment of pneumoconiosis. For example, the Department
has proposed revising the definition of pneumoconiosis to recognize the
progressive nature of the disease and the possibility that a miner's
coal mine dust exposure may have contributed to the development of
either obstructive or restrictive lung disease. The Department has also
proposed revisions in the standards for administering pulmonary
function tests and in the adjudication of the compensability of medical
expenses.
Legal Basis for the Proposed Rule
The Black Lung Benefits Act grants the Secretary broad authority to
issue regulations. Section 422(a) of the Act provides that ``[i]n
administering this part [Part C of the Act], the Secretary is
authorized to prescribe in the Federal Register such additional
provisions * * * as [s]he deems necessary to provide for the payment of
benefits by such operator to persons entitled thereto as provided in
this part and thereafter those provisions shall be applicable to such
operator.'' 30 U.S.C. 932(a). Section 426(a) of the Act similarly
authorizes the Secretary to ``issue such regulations as [she] deems
appropriate to carry out the provisions of this title.'' 30 U.S.C.
936(a). The Act also authorizes the Secretary to promulgate regulations
on specific subjects, such as criteria for medical tests, 30 U.S.C.
902(f)(1)(D), standards for assigning liability to coal mine operators,
30 U.S.C. 932(h), and regulations governing insurance contracts, 30
U.S.C. 933(b)(3). In addition, the Department, like any other
administrative agency, possesses the inherent authority to promulgate
regulations in order to fill gaps in the legislation that it is
responsible for administering. Chevron v. Natural Resources Defense
Council, 467 U.S. 837, 843-44 (1984); Pauley v. Bethenergy Mines, Inc.,
501 U.S. 680, 696 (1991).
Small Businesses to which the Rule will Apply
The Regulatory Flexibility Act requires an administrative agency to
describe and, where feasible, estimate the number of small entities to
which a proposed rule will apply. 5 U.S.C. 603(b)(5). Small entities
include small businesses, small organizations, and small governmental
jurisdictions. 5 U.S.C. 601(6). The Black Lung Benefits Act, however,
does not seek to regulate small organizations or small governmental
jurisdictions. Accordingly, this analysis is limited to the effect of
the proposed rule on small businesses. By its terms, the Black Lung
Benefits Act imposes obligations on coal mine operators. 30 U.S.C.
932(b) (``each such operator shall be liable for and shall secure the
payment of benefits * * *.''). An operator is defined, for purposes of
the black lung benefits program, as ``any owner, lessee, or other
person who operates, controls, or supervises a coal mine, or any
independent contractor performing services or construction at such
mine.'' Sec. 725.491(a)(1); 30 U.S.C. 802(d).
In assessing the impact of the proposed rule on operators that may
be considered small businesses, the RFA requires an agency to use the
definitions of the term "small business" used by the Small Business
Administration unless the agency, after consultation with SBA's Office
of Advocacy and opportunity for public comment, establishes its own
definition. 5 U.S.C. 601(3). SBA's definitions, set forth in 13
[[Page 55008]]
CFR 121.201, are grouped according to Standard Industrial Codes (SICs)
used by the Bureau of the Census. For purposes of identifying the small
businesses to which the Black Lung Benefits Act and its implementing
regulations apply, two categories are applicable: Coal Mining (SIC
Codes 1220, 1221, 1222, 1230, and 1231) and Coal Mining Services (SIC
Codes 1240 and 1241). SBA defines a small business in the coal mining
industry as one with fewer than 500 employees, and a small business in
the coal mining services industry as one with less than $5 million
annually in receipts.
The Department has prepared an extensive economic analysis of the
effect of the proposed rule on small businesses in the coal mining
industry. A copy of that analysis is available on request from James L.
DeMarce, Director, Division of Coal Mine Workers' Compensation, Room C-
3520, Frances Perkins Building, 200 Constitution Ave., N.W.,
Washington, DC 20210. In the analysis, the Department specifically
requests comments on a number of the assumptions underlying its
conclusion. These include the relationship between increases in the
claims approval rate and increases in insurance premiums; the
relationship between increased medical costs and increases in insurance
premiums; and the extent to which promulgation of these revisions will
result in an increase in the number of claims filed.
The Department's analysis, using data maintained by the Mine Safety
and Health Administration, indicates that, in 1995, 2,811 of 2,822
establishments, consisting of mines and preparation plants, employed
less than 500 people (Exhibit C, total of all establishments employing
less than 500 people). Of these establishments, 1,581 were associated
with mining bituminous coal at a surface mine, 1009 mined bituminous
coal underground, and 221 mined anthracite coal. When individual
establishments are aggregated into parent companies, the Department
found that 898 of 933 companies employed less than 500 people, and thus
meet SBA's definition of a small business (Exhibit D).
It is not feasible to estimate precisely the number of independent
contractors engaged in coal-mine related activities that meet SBA's
definition, for example, those involved in coal mine construction and
coal transportation. Data provided the Department by SBA (also
available at https://www.sba.gov/ADVO/) with respect to firms in the
coal mining services industry does not permit the direct identification
of specific firms with less than $5 million annually in receipts. The
data lists firms in categories according to the number of employees
(e.g., 1-4, 5-9), and provides the total estimated annual receipts for
all of the firms in each category. Thus, at best, the data allows only
an estimate of the average annual receipts of each firm within a given
category. In the case of firms engaged in coal mining services, SBA
data suggests that firms with 20 or more employees have average annual
receipts that exceed the SBA cutoff. For example, 9 firms with between
20 and 24 employees had total annual estimated receipts in 1994 of
$48,240,000. Thus, the average annual receipts of each firm in this
category exceeds $5 million. Because 209 of the 275 firms engaged in
coal mining services have fewer than 20 employees, the Department
estimates that no more than 209 coal mining services firms will be
affected by the proposed rule. The Department notes that this estimate
may not include all coal mine construction and coal transportation
companies. Because coal mine construction or coal transportation may
not be the primary source of income for these companies, they may not
appear in the SBA's data under the SIC Code covering coal mining
services. The Department cannot estimate the number of firms that are
excluded from SBA's data.
Projected Reporting, Recordkeeping, and Other Compliance Requirements
of the Proposed Rule
The revisions proposed by the Department to its black lung
regulations will not impose any additional reporting or recordkeeping
requirements on small businesses. The analysis of additional costs that
follows is derived from the Department's extensive economic analysis of
the effect of the proposed rule on small businesses in the coal mining
industry. References are to exhibits that accompany that report. The
costs associated with the proposed rule involve possible increases in
benefit payments, including monetary disability benefits and medical
benefits, and increases in transaction costs incurred in the defense of
claims under the Act. These costs will be imposed on coal mine
operators either directly, in the case of coal mine operators that
self-insure their obligations under the Act, or indirectly, in the case
of coal mine operators that purchase commercial insurance. The latter
group will absorb the increased costs through increases in insurance
premiums. Because self-insurers are required to have a net worth of
more than $10 million, and are able to take advantage of economies of
scale in absorbing these costs, the Department's economic analysis
focused on companies with commercial insurance. Increased costs on
commercially insured operators will be higher than those imposed on
self-insurers (which would have purchased commercial insurance if it
were less expensive) and thus will overstate the costs to the coal
mining industry as a whole.
The Department has concluded that insurance rates, typically
between $.56 (for bituminous coal operators in Pennsylvania) and $5.38
(for anthracite coal operators in Pennsylvania) per $100 of payroll
(Exhibit F), may be expected to rise by a total of 41.7 percent in the
first two years and 39.3 percent in the long term. The Department has
calculated the percentage increase in price that operators in a
representative sample of states will need to charge in order to cover
increased cost of the Department's proposed revisions. That cost ranges
from .35 % (for West Virginia operators with 50 to 100 employees) to
3.3 % (for anthracite operators) (Exhibit O). The Department concludes
that these price increases will fall most heavily on coal mine
operators with less than 20 employees. The increases will clearly be
significant, and although a number of small mine operators will be able
to recoup their costs, less well-positioned bituminous operators and
contract mine operators will face the greatest difficulty in doing so.
As a result, some operators in those groups may be forced to suspend
operations.
In addition, the proposed rule requires several specific actions on
the part of coal mine operators. Operators that do not purchase
commercial insurance to secure their liability for black lung benefits,
including both operators that are authorized to self-insure and
operators that are not required to obtain insurance, will be required
to respond more promptly to notice from the Department that a claim has
been filed by one of their former employees. See Sec. 725.407.
Specifically, they will have 90 days from receipt of notice to supply
the Department with information relevant to their employment of the
miner. Operators that have not secured their liability will also be
required to post security in the event that they are held liable for
the payment of benefits on an individual claim. See Sec. 725.606.
Operators that have been authorized to self-insure their liability
under the Act will be required to maintain security for their claims
even after they leave the coal mining business. See Sec. 726.114.
Finally, the Department's revisions are intended to enhance its ability
to enforce civil
[[Page 55009]]
money penalties against operators that fail to comply with the Act's
security requirements, and thus may impose additional costs on
operators that are not currently in compliance with the Act's
requirements. See Part 726, Subpart D. The remaining revisions do not
impose on operators any additional compliance requirements beyond those
in the Department's current regulations.
Rules that Overlap, Duplicate, or Conflict with the Proposed Rule
There are no other rules of which the Department is aware that
overlap, duplicate, or conflict with the Department's proposed rule.
Significant Alternatives to the Rule
The Regulatory Flexibility Act requires the Department to consider
alternatives to the rule that would minimize any significant economic
impact on small businesses without sacrificing the stated objectives of
the rule. 5 U.S.C. 603(b). The Black Lung Benefits Act places severe
constraints on the Department's ability to target its proposed rule in
order to minimize its impact on small business. The use of SBA's size
standard would require the Department to seek ways of protecting more
than 96 percent of the companies in the coal mining industry (898 of
the 933 companies). Even using a 20-employee size standard, and thus
focusing attention on the operators most likely to face significant
additional costs, the Department's ability to reduce the economic
impact of the proposal is limited.
Most of the revisions proposed by the Department affect the
criteria used to determine a claimant's entitlement to benefits. The
Black Lung Benefits Act requires that benefits be paid to each miner
who is totally disabled as a result of pneumoconiosis arising out of
coal mine employment, 30 U.S.C. 922(a)(1), and each dependent survivor
of a miner who died due to pneumoconiosis or, if the claim was filed
before January 1, 1982, was totally disabled at the time of death by
the disease. 30 U.S.C. 922(a)(2), (3), (5). As an initial matter, then,
the Act simply does not permit the Department to adjust its entitlement
regulations based on the size of the miner's former employer. In
effect, the Department cannot deny a claim because the miner was
employed by a small business.
The Department has proposed revisions to the regulations governing
the identity of the party liable for the payment of benefits. Like the
current regulations, the Department's proposal would impose liability
on the coal mine operator that most recently employed the miner for a
period of not less than one year, provided that the operator meets
other specified criteria. Among these criteria is the operator's
financial ability to assume responsibility for the payment of benefits.
See Sec. 725.494(e). Because coal mine operators are required to secure
their liability under the Act by purchasing commercial insurance or by
self-insuring, however, this condition typically affects only two
classes of operators: those that have failed to comply with the Act's
security requirement, and those construction and transportation
employers that are not subject to the security requirement. Such a
company may avoid liability for a particular claim by demonstrating
that it is financially incapable of assuming the payment of monthly and
retroactive benefits.
Although the use of a financial capability standard might be
considered a benefit to small businesses, using either SBA's definition
or the 20-employee cutoff, the Department does not believe that it can
provide any other similar benefit. In theory, of course, the Department
could specifically limit liability under the Act in cases involving
operators below a certain size. To do so, however, the Department would
have to increase the obligations borne by larger coal mine operators
(who may be the miner's second or third most recent employer) or the
Black Lung Disability Trust Fund. Such a result, however, would violate
Congress's clear intent: ``It is further the intention of this section,
with respect to claims related to which the miner worked on or after
January 1, 1970, to ensure that individual coal operators rather than
the trust fund bear the liability for claims arising out of such
operator's mines, to the maximum extent feasible.'' S. Rep. 209, 95th
Cong., 1st Sess. 9 (1977), reprinted in House Comm. On Educ. And Labor,
96th Cong., Black Lung Benefits Reform Act and Black Lung Benefits
Revenue Act of 1977, 612 (Comm. Print 1979).
One area in which the Department may appropriately impose lesser
costs on small businesses is the assessment of civil money penalties
for failure to secure the payment of benefits. The Act merely provides
that operators that fail to secure their liability are subject to a
civil money penalty of up to ,000 a day. The current regulations
authorize the imposition of the "maximum penalty allowed" in the
absence of mitigating circumstances. 20 CFR 725.495(d). By contrast,
the Department's proposed regulations recognize that smaller companies
may cause less harm by failing to secure the payment of benefits. The
Department's proposal therefore establishes different base penalty
amounts for operators who fail to insure, depending on the number of
their employees. Thus, where the Act permits the Department to exercise
flexibility with regard to small business, the Department has done so.
The Department invites comment from interested parties,
particularly coal mine operators that are considered small businesses,
as to other possible means of reducing the financial impact of the
proposed rules on the small business community. Commenters should bear
in mind that the fundamental purpose of the Black Lung Benefits Act is
to provide benefits to disabled miners and their survivors, and that
all applicants and beneficiaries must be treated fairly.
List of Subjects in 20 CFR Parts 718, 722, 725, 726, 727.
Black lung benefits, Lung disease, Miners, Mines, Workers'
compensation, X-rays.
Signed at Washington, D.C., this 15th day of September, 1999.
Bernard Anderson,
Assistant Secretary for Employment Standards.
For the reasons set forth in the preamble, 20 CFR Chapter VI is
proposed to be amended as follows:
1. The authority citation for part 718 continues to read as
follows:
Authority: 5 U.S.C. 301, Reorganization Plan No. 6 of 1950, 15
FR 3174, 30 U.S.C. 901 et seq., 902(f), 925, 932, 934, 936, 945; 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.
2. Part 718 is proposed to be amended by removing subpart E,
revising subparts A through D, revising Appendices A and C, and
revising the text of Appendix B (the tables, B1 through B6, in Appendix
B remain unchanged):
PART 718--STANDARDS FOR DETERMINING COAL MINERS' TOTAL DISABILITY
OR DEATH DUE TO PNEUMOCONIOSIS
Subpart A--General
Sec.
718.1 Statutory provisions.
718.2 Applicability of this part.
718.3 Scope and intent of this part.
718.4 Definitions and use of terms.
Subpart B--Criteria for the Development of Medical Evidence
718.101 General.
718.102 Chest roentgenograms (X-rays).
718.103 Pulmonary function tests.
718.104 Report of physical examinations.
718.105 Arterial blood-gas studies.
718.106 Autopsy; biopsy.
[[Page 55010]]
718.107 Other medical evidence.
Subpart C--Determining Entitlement to Benefits
718.201 Definition of pneumoconiosis.
718.202 Determining the existence of pneumoconiosis.
718.203 Establishing relationship of pneumoconiosis to coal mine
employment.
718.204 Total disability and disability causation defined; criteria
for determining total disability and total disability due to
pneumoconiosis.
718.205 Death due to pneumoconiosis.
718.206 Effect of findings by persons or agencies.
Subpart D--Presumptions Applicable to Eligibility Determinations
718.301 Establishing length of employment as a miner.
718.302 Relationship of pneumoconiosis to coal mine employment.
718.303 Death from a respirable disease.
718.304 Irrebuttable presumption of total disability or death due
to pneumoconiosis.
718.305 Presumption of pneumoconiosis.
718.306 Presumption of entitlement applicable to certain death
claims.
Appendix A to Part 718--Standards for Administration and
Interpretation of Chest Roentgenograms (X-rays)
Appendix B to Part 718--Standards for Administration and
Interpretation of Pulmonary Function Tests. Tables B1, B2, B3, B4,
B5, B6
Appendix C to Part 718--Blood Gas Tables
Subpart A--General
Sec. 718.1 Statutory provisions.
(a) Under title IV of the Federal Coal Mine Health and Safety Act
of 1969, as amended by the Black Lung Benefits Act of 1972, the Federal
ine Safety and Health Amendments Act of 1977, the Black Lung Benefits
Reform Act of 1977, the Black Lung Benefits Revenue Act of 1977, the
Black Lung Benefits Amendments of 1981, and the Black Lung Benefits
Revenue Act of 1981, benefits are provided to miners who are totally
disabled due to pneumoconiosis and to certain survivors of a miner who
died due to or while totally or partially disabled by pneumoconiosis.
However, 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 or after January 1, 1982, only when the
miner's death was due to pneumoconiosis, except where the survivor's
entitlement is established pursuant to Sec. 718.306 on a claim filed
prior to June 30, 1982. Before the enactment of the Black Lung Benefits
Reform Act of 1977, the authority for establishing standards of
eligibility for miners and their survivors was placed with the
Secretary of Health, Education, and Welfare. These standards were set
forth by the Secretary of Health, Education, and Welfare in subpart D
of part 410 of this title, and adopted by the Secretary of Labor for
application to all claims filed with the Secretary of Labor (see 20 CFR
718.2, contained in the 20 CFR, part 500 to end, edition revised as of
April 1, 1979). Amendments made to section 402(f) of the Act by the
Black Lung Benefits Reform Act of 1977 authorize the Secretary of Labor
to establish criteria for determining total or partial disability or
death due to pneumoconiosis to be applied in the processing and
adjudication of claims filed under part C of title IV of the Act.
Section 402(f) of the Act further authorizes the Secretary of Labor, in
consultation with the National Institute for Occupational Safety and
Health, to establish criteria for all appropriate medical tests
administered in connection with a claim for benefits. Section 413(b) of
the Act authorizes the Secretary of Labor to establish criteria for the
techniques to be used to take chest roentgenograms (X-rays) in
connection with a claim for benefits under the Act.
(b) The Black Lung Benefits Reform Act of 1977 provided that with
respect to a claim filed prior to April 1, 1980, or reviewed under
section 435 of the Act, the standards to be applied in the adjudication
of such claim shall not be more restrictive than the criteria
applicable to a claim filed on June 30, 1973, with the Social Security
Administration, whether or not the final disposition of the claim
occurs after March 31, 1980. All such claims shall be reviewed under
the criteria set forth in part 727 of this title (see 20 CFR 725.4(d)).
Sec. 718.2 Applicability of this part.
This part is applicable to the adjudication of all claims filed
after March 31, 1980, and considered by the Secretary of Labor under
section 422 of the Act and part 725 of this subchapter. If a claim
subject to the provisions of section 435 of the Act and subpart C of
part 727 of this subchapter (see 20 CFR 725.4(d)) cannot be approved
under that subpart, such claim may be approved, if appropriate, under
the provisions contained in this part. The provisions of this part
shall, to the extent appropriate, be construed together in the
adjudication of all claims.
Sec. 718.3 Scope and intent of this part.
(a) This part sets forth the standards to be applied in determining
whether a coal miner is or was totally, or in the case of a claim
subject to Sec. 718.306 partially, disabled due to pneumoconiosis or
died due to pneumoconiosis. It also specifies the procedures and
requirements to be followed in conducting medical examinations and in
administering various tests relevant to such determinations.
(b) This part is designed to interpret the presumptions contained
in section 411(c) of the Act, evidentiary standards and criteria
contained in section 413(b) of the Act and definitional requirements
and standards contained in section 402(f) of the Act within a coherent
framework for the adjudication of claims. It is intended that these
enumerated provisions of the Act be construed as provided in this part.
Sec. 718.4 Definitions and use of terms.
Except as is otherwise provided by this part, the definitions and
usages of terms contained in Sec. 725.101 of subpart A of part 725 of
this title shall be applicable to this part.
Subpart B--Criteria for the Development of Medical Evidence
Sec. 718.101 General.
(a) The Office of Workers' Compensation Programs (hereinafter OWCP
or the Office) shall develop the medical evidence necessary for a
determination with respect to each claimant's entitlement to benefits.
Each miner who files a claim for benefits under the Act shall be
provided an opportunity to substantiate his or her claim by means of a
complete pulmonary evaluation including, but not limited to, a chest
roentgenogram (X-ray), physical examination, pulmonary function tests
and a blood-gas study.
(b) The standards for the administration of clinical tests and
examinations contained in this subpart shall apply to all evidence
developed by any party after [the effective date of the final rule] in
connection with a claim governed by this part (see Secs. 725.406(b),
725.414(a), 725.456(d)). These standards shall also apply to claims
governed by part 727 (see 20 CFR 725.4(d)), but only for clinical tests
or examinations conducted after [the effective date of the final rule].
Any clinical test or examination subject to these standards shall be in
substantial compliance with the applicable standard in order to
constitute evidence of the fact for which it is proffered. Unless
otherwise provided, any evidence which is not in substantial compliance
with the applicable standard is insufficient to establish the fact for
which it is proffered.
[[Page 55011]]
Sec. 718.102 Chest roentgenograms (X-rays).
(a) A chest roentgenogram (X-ray) shall be of suitable quality for
proper classification of pneumoconiosis and shall conform to the
standards for administration and interpretation of chest X-rays as
described in Appendix A to this part.
(b) A chest X-ray to establish the existence of pneumoconiosis
shall be classified as Category 1, 2, 3, A, B, or C, according to the
International Labour Organization Union Internationale Contra Cancer/
Cincinnati (1971) International Classification of Radiographs of the
Pneumoconioses (ILO-U/C 1971), or subsequent revisions thereof. A chest
X-ray classified as Category Z under the ILO Classification (1958) or
Short Form (1968) shall be reclassified as Category O or Category 1 as
appropriate, and only the latter accepted as evidence of
pneumoconiosis. A chest X-ray classified under any of the foregoing
classifications as Category O, including sub-categories 0--, 0/0, or 0/
1 under the UICC/Cincinnati (1968) Classification or the ILO-U/C 1971
Classification does not constitute evidence of pneumoconiosis.
(c) A description and interpretation of the findings in terms of
the classifications described in paragraph (b) of this section shall be
submitted by the examining physician along with the film. The report
shall specify the name and qualifications of the person who took the
film and the name and qualifications of the physician interpreting the
film. If the physician interpreting the film is a Board-certified or
Board-eligible radiologist or a certified "B" reader (see
Sec. 718.202), he or she shall so indicate. The report shall further
specify that the film was interpreted in compliance with this
paragraph.
(d) The original film on which the X-ray report is based shall be
supplied to the Office, unless prohibited by law, in which event the
report shall be considered as evidence only if the original film is
otherwise available to the Office and other parties. Where the chest X-
ray of a deceased miner has been lost, destroyed or is otherwise
unavailable, a report of a chest X-ray submitted by any party shall be
considered in connection with the claim.
(e) No chest X-ray shall constitute evidence of the presence or
absence of pneumoconiosis unless it is conducted and reported in
accordance with the requirements of this section and Appendix A. In the
absence of evidence to the contrary, compliance with the requirements
of Appendix A shall be presumed. In the case of a deceased miner where
the only available X-ray does not substantially comply with this
subpart, such X-ray shall be considered and shall be accorded
appropriate weight in light of all relevant evidence if it is of
sufficient quality for determining the presence or absence of
pneumoconiosis and such X-ray was interpreted by a Board-certified or
Board-eligible radiologist or a certified "B" reader (see
Sec. 718.202).
Sec. 718.103 Pulmonary function tests.
(a) Any report of pulmonary function tests submitted in connection
with a claim for benefits shall record the results of flow versus
volume (flow-volume loop). The instrument shall simultaneously provide
records of volume versus time (spirometric tracing). The report shall
provide the results of the forced expiratory volume in one second
(FEV1) and the forced vital capacity (FVC). The report shall also
provide the FEV1/FVC ratio, expressed as a percentage. If the maximum
voluntary ventilation (MVV) is reported, the results of such test shall
be obtained independently rather than calculated from the results of
the FEV1.
(b) All pulmonary function test results submitted in connection
with a claim for benefits shall be accompanied by three tracings of the
flow versus volume and the electronically derived volume versus time
tracings. If the MVV is reported, two tracings of the MVV whose values
are within 10% of each other shall be sufficient. Pulmonary function
test results submitted in connection with a claim for benefits shall
also include a statement signed by the physician or technician
conducting the test setting forth the following:
(1) Date and time of test;
(2) Name, DOL claim number, age, height, and weight of claimant at
the time of the test;
(3) Name of technician;
(4) Name and signature of physician supervising the test;
(5) Claimant's ability to understand the instructions, ability to
follow directions and degree of cooperation in performing the tests. If
the claimant is unable to complete the test, the person executing the
report shall set forth the reasons for such failure;
(6) Paper speed of the instrument used;
(7) Name of the instrument used;
(8) Whether a bronchodilator was administered. If a bronchodilator
is administered, the physician's report must detail values obtained
both before and after administration of the bronchodilator and explain
the significance of the results obtained; and
(9) That the requirements of paragraphs (b) and (c) of this section
have been complied with.
(c) No results of a pulmonary function study shall constitute
evidence of the presence or absence of a respiratory or pulmonary
impairment unless it is conducted and reported in accordance with the
requirements of this section and Appendix B to this part. In the
absence of evidence to the contrary, compliance with the requirements
of Appendix B shall be presumed. In the case of a deceased miner,
special consideration shall be given to noncomplying tests if, in the
opinion of the adjudication officer, the only available tests
demonstrate technically valid results obtained with good cooperation of
the miner.
Sec. 718.104 Report of physical examinations.
(a) A report of any physical examination conducted in connection
with a claim shall be prepared on a medical report form supplied by the
Office or in a manner containing substantially the same information.
Any such report shall include the following information and test
results:
(1) The miner's medical and employment history;
(2) All manifestations of chronic respiratory disease;
(3) Any pertinent findings not specifically listed on the form;
(4) If heart disease secondary to lung disease is found, all
symptoms and significant findings;
(5) The results of a chest X-ray conducted and interpreted as
required by Sec. 718.102; and
(6) The results of a pulmonary function test conducted and reported
as required by Sec. 718.103. If the miner is physically unable to
perform a pulmonary function test or if the test is medically
contraindicated, in the absence of evidence establishing total
disability pursuant to Sec. 718.304, the report must be based on other
medically acceptable clinical and laboratory diagnostic techniques,
such as a blood gas study.
(b) In addition to the requirements of paragraph (a) of this
section, a report of physical examination may be based on any other
procedures such as electrocardiogram, blood-gas studies conducted and
reported as required by Sec. 718.105, and other blood analyses which,
in the physician's opinion, aid in his or her evaluation of the miner.
(c) In the case of a deceased miner, a report prepared by a
physician who is unavailable, which fails to meet the criteria of
paragraph (a), may be given appropriate consideration and weight by the
adjudicator in light of all relevant
[[Page 55012]]
evidence provided no report which does comply with this section is
available.
(d) Treating physician. The adjudication officer may give the
medical opinion of the miner's treating physician controlling weight in
weighing the medical evidence of record relevant to whether the miner
suffers, or suffered, from pneumoconiosis, whether the pneumoconiosis
arose out of coal mine employment, and whether the miner is, or was,
totally disabled by pneumoconiosis or died due to pneumoconiosis. The
adjudication officer shall take into consideration the following
factors in weighing the opinion of a treating physician:
(1) Nature of relationship. The opinion of a physician who has
treated the miner for respiratory or pulmonary conditions is entitled
to more weight than a physician who has treated the miner for non-
respiratory conditions;
(2) Duration of relationship. The length of the treatment
relationship demonstrates whether the physician has observed the miner
long enough to obtain a superior understanding of his or her condition;
(3) Frequency of treatment. The frequency of physician-patient
visits demonstrates whether the physician has observed the miner often
enough to obtain a superior understanding of his or her condition; and
(4) Extent of treatment. The types of testing and examinations
conducted during the treatment relationship demonstrate whether the
physician has obtained superior and relevant information concerning the
miner's condition.
(5) In the absence of contrary probative evidence, the adjudication
officer shall accept the statement of a physician with regard to the
factors listed in paragraphs (d)(1) through (4) of this section.
Whether controlling weight is given to the opinion of a miner's
treating physician shall also be based on the credibility of the
physician's opinion in light of its reasoning and documentation, other
relevant evidence and the record as a whole.
Sec. 718.105 Arterial blood-gas studies.
(a) Blood-gas studies are performed to detect an impairment in the
process of alveolar gas exchange. This defect will manifest itself
primarily as a fall in arterial oxygen tension either at rest or during
exercise. No blood-gas study shall be performed if medically
contraindicated.
(b) A blood-gas study shall initially be administered at rest and
in a sitting position. If the results of the blood-gas test at rest do
not satisfy the requirements of Appendix C to this part, an exercise
blood-gas test shall be offered to the miner unless medically
contraindicated. If an exercise blood-gas test is administered, blood
shall be drawn during exercise.
(c) Any report of a blood-gas study submitted in connection with a
claim shall specify:
(1) Date and time of test;
(2) Altitude and barometric pressure at which the test was
conducted;
(3) Name and DOL claim number of the claimant;
(4) Name of technician;
(5) Name and signature of physician supervising the study;
(6) The recorded values for PCO2, PO2, and PH, which have been
collected simultaneously (specify values at rest and, if performed,
during exercise);
(7) Duration and type of exercise;
(8) Pulse rate at the time the blood sample was drawn;
(9) Time between drawing of sample and analysis of sample; and
(10) Whether equipment was calibrated before and after each test.
(d) If one or more blood-gas studies producing results which meet
the appropriate table in Appendix C is administered during a
hospitalization which ends in the miner's death, then any such study
must be accompanied by a physician's report establishing that the test
results were produced by a chronic respiratory or pulmonary condition.
Failure to produce such a report will prevent reliance on the blood-gas
study as evidence that the miner was totally disabled at death.
Sec. 718.106 Autopsy; biopsy.
(a) A report of an autopsy or biopsy submitted in connection with a
claim shall include a detailed gross macroscopic and microscopic
description of the lungs or visualized portion of a lung. If a surgical
procedure has been performed to obtain a portion of a lung, the
evidence shall include a copy of the surgical note and the pathology
report of the gross and microscopic examination of the surgical
specimen. If an autopsy has been performed, a complete copy of the
autopsy report shall be submitted to the Office.
(b) In the case of a miner who died prior to March 31, 1980, an
autopsy or biopsy report shall be considered even when the report does
not substantially comply with the requirements of this section. A
noncomplying report concerning a miner who died prior to March 31,
1980, shall be accorded the appropriate weight in light of all relevant
evidence.
(c) A negative biopsy is not conclusive evidence that the miner
does not have pneumoconiosis. However, where positive findings are
obtained on biopsy, the results will constitute evidence of the
presence of pneumoconiosis.
Sec. 718.107 Other medical evidence.
(a) The results of any medically acceptable test or procedure
reported by a physician and not addressed in this subpart, which tends
to demonstrate the presence or absence of pneumoconiosis, the sequelae
of pneumoconiosis or a respiratory or pulmonary impairment, may be
submitted in connection with a claim and shall be given appropriate
consideration.
(b) The party submitting the test or procedure pursuant to this
section bears the burden to demonstrate that the test or procedure is
medically acceptable and relevant to establishing or refuting a
claimant's entitlement to benefits.
Subpart C--Determining Entitlement to Benefits
Sec. 718.201 Definition of pneumoconiosis.
(a) For the purpose of the Act, "pneumoconiosis" means a chronic
dust disease of the lung and its sequelae, including respiratory and
pulmonary impairments, arising out of coal mine employment. This
definition includes both medical, or "clinical", pneumoconiosis and
statutory, or "legal", pneumoconiosis.
(1) Clinical pneumoconiosis. "Clinical pneumoconiosis" consists
of those diseases, recognized by the medical community as
pneumoconioses, i.e., the conditions characterized by permanent
deposition of substantial amounts of particulate matter in the lungs
and the fibrotic reaction of the lung tissue to that deposition caused
by dust exposure in coal mine employment. This definition includes, but
is not limited to, coal workers' pneumoconiosis, anthracosilicosis,
anthracosis, anthrosilicosis, massive pulmonary fibrosis, silicosis or
silicotuberculosis, arising out of coal mine employment.
(2) Legal pneumoconiosis. "Legal pneumoconiosis" includes any
chronic lung disease or impairment and its sequelae arising out of coal
mine employment. This definition includes, but is not limited to, any
chronic restrictive or obstructive pulmonary disease arising out of
coal mine employment.
(b) For purposes of this section, a disease ``arising out of coal
mine employment'' includes any chronic pulmonary disease or respiratory
or pulmonary impairment significantly related to, or substantially
aggravated
[[Page 55013]]
by, dust exposure in coal mine employment.
(c) For purposes of this definition, "pneumoconiosis" is
recognized as a latent and progressive disease which may first become
detectable only after the cessation of coal mine dust exposure.
Sec. 718.202 Determining the existence of pneumoconiosis.
(a) A finding of the existence of pneumoconiosis may be made as
follows:
(1) A chest X-ray conducted and classified in accordance with
Sec. 718.102 may form the basis for a finding of the existence of
pneumoconiosis. Except as otherwise provided in this section, where two
or more X-ray reports are in conflict, in evaluating such X-ray reports
consideration shall be given to the radiological qualifications of the
physicians interpreting such X-rays.
(i) In all claims filed before January 1, 1982, where there is
other evidence of pulmonary or respiratory impairment, a Board-
certified or Board-eligible radiologist's interpretation of a chest X-
ray shall be accepted by the Office if the X-ray is in compliance with
the requirements of Sec. 718.102 and if such X-ray has been taken by a
radiologist or qualified radiologic technologist or technician and
there is no evidence that the claim has been fraudulently represented.
However, these limitations shall not apply to any claim filed on or
after January 1, 1982.
(ii) The following definitions shall apply when making a finding in
accordance with this paragraph.
(A) The term other evidence means medical tests such as blood-gas
studies, pulmonary function studies or physical examinations or medical
histories which establish the presence of a chronic pulmonary,
respiratory or cardio-pulmonary condition, and in the case of a
deceased miner, in the absence of medical evidence to the contrary,
affidavits of persons with knowledge of the miner's physical condition.
(B) Pulmonary or respiratory impairment means inability of the
human respiratory apparatus to perform in a normal manner one or more
of the three components of respiration, namely, ventilation, perfusion
and diffusion.
(C) Board-certified means certification in radiology or diagnostic
roentgenology by the American Board of Radiology, Inc. or the American
Osteopathic Association.
(D) Board-eligible means the successful completion of a formal
accredited residency program in radiology or diagnostic roentgenology.
(E) Certified `B' reader or `B' reader means a physician who has
demonstrated proficiency in evaluating chest roentgenograms for
roentgenographic quality and in the use of the ILO-U/C classification
for interpreting chest roentgenograms for pneumoconiosis and other
diseases by taking and passing a specially designed proficiency
examination given on behalf of or by the Appalachian Laboratory for
Occupational Safety and Health. See 42 CFR 37.51(b)(2).
(F) Qualified radiologic technologist or technician means an
individual who is either certified as a registered technologist by the
American Registry of Radiologic Technologists or licensed as a
radiologic technologist by a state licensing board.
(2) A biopsy or autopsy conducted and reported in compliance with
Sec. 718.106 may be the basis for a finding of the existence of
pneumoconiosis. A finding in an autopsy or biopsy of anthracotic
pigmentation, however, shall not be sufficient, by itself, to establish
the existence of pneumoconiosis. A report of autopsy shall be accepted
unless there is evidence that the report is not accurate or that the
claim has been fraudulently represented.
(3) If the presumptions described in Secs. 718.304, 718.305 or
Sec. 718.306 are applicable, it shall be presumed that the miner is or
was suffering from pneumoconiosis.
(4) A determination of the existence of pneumoconiosis may also be
made if a physician, exercising sound medical judgment, notwithstanding
a negative X-ray, finds that the miner suffers or suffered from
pneumoconiosis as defined in Sec. 718.201. Any such finding shall be
based on objective medical evidence such as blood-gas studies,
electrocardiograms, pulmonary function studies, physical performance
tests, physical examination, and medical and work histories. Such a
finding shall be supported by a reasoned medical opinion.
(b) No claim for benefits shall be denied solely on the basis of a
negative chest X-ray.
(c) A determination of the existence of pneumoconiosis shall not be
made solely on the basis of a living miner's statements or testimony.
Nor shall such a determination be made upon a claim involving a
deceased miner filed on or after January 1, 1982, solely based upon the
affidavit(s) (or equivalent sworn testimony) of the claimant and/or his
or her dependents who would be eligible for augmentation of the
claimant's benefits if the claim were approved.
Sec. 718.203 Establishing relationship of pneumoconiosis to coal mine
employment.
(a) In order for a claimant to be found eligible for benefits under
the Act, it must be determined that the miner's pneumoconiosis arose at
least in part out of coal mine employment. The provisions in this
section set forth the criteria to be applied in making such a
determination.
(b) 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.
(c) If a miner who is suffering or suffered from pneumoconiosis was
employed less than ten years in the nation's coal mines, it shall be
determined that such pneumoconiosis arose out of that employment only
if competent evidence establishes such a relationship.
Sec. 718.204 Total disability and disability causation defined;
criteria for determining total disability and total disability due to
pneumoconiosis.
(a) General. Benefits are provided under the Act for or on behalf
of miners who are totally disabled due to pneumoconiosis, or who were
totally disabled due to pneumoconiosis at the time of death. For
purposes of this section, any nonpulmonary or nonrespiratory condition
or disease, which causes an independent disability unrelated to the
miner's pulmonary or respiratory disability, shall not be considered in
determining whether a miner is totally disabled due to pneumoconiosis.
If, however, a nonpulmonary or nonrespiratory condition or disease
causes a chronic respiratory or pulmonary impairment, that condition or
disease shall be considered in determining whether the miner is or was
totally disabled due to pneumoconiosis.
(b)(1) Total disability defined. A miner shall be considered
totally disabled if the irrebuttable presumption described in
Sec. 718.304 applies. If that presumption does not apply, a miner shall
be considered totally disabled if the miner has a pulmonary or
respiratory impairment which, standing alone, prevents or prevented the
miner:
(i) From performing his or her usual coal mine work; and
(ii) From engaging in gainful employment in the immediate area of
his or her residence requiring the skills or abilities comparable to
those of any employment in a mine or mines in which he or she
previously engaged
[[Page 55014]]
with some regularity over a substantial period of time.
(2) Medical criteria. In the absence of contrary probative
evidence, evidence which meets the standards of either paragraphs
(b)(2)(i), (ii), (iii), or (iv) of this section shall establish a
miner's total disability:
(i) Pulmonary function tests showing values equal to or less than
those listed in Table B1 (Males) or Table B2 (Females) in Appendix B to
this part for an individual of the miner's age, sex, and height for the
FEV1 test; if, in addition, such tests also reveal the values specified
in either paragraph (b)(2)(i)(A) or (B) or (C) of this section:
(A) Values equal to or less than those listed in Table B3 (Males)
or Table B4 (Females) in Appendix B of this part, for an individual of
the miner's age, sex, and height for the FVC test, or
(B) Values equal to or less than those listed in Table B5 (Males)
or Table B6 (Females) in Appendix B to this part, for an individual of
the miner's age, sex, and height for the MVV test, or
(C) A percentage of 55 or less when the results of the FEV1 test
are divided by the results of the FVC test (FEV1/FVC equal to or less
than 55%), or
(ii) Arterial blood-gas tests show the values listed in Appendix C
to this part, or
(iii) The miner has pneumoconiosis and has been shown by the
medical evidence to be suffering from cor pulmonale with right-sided
congestive heart failure, or
(iv) Where total disability cannot be shown under paragraphs
(b)(2)(i), (ii), or (iii) of this section, or where pulmonary function
tests and/or blood gas studies are medically contraindicated, total
disability may nevertheless be found if a physician exercising reasoned
medical judgment, based on medically acceptable clinical and laboratory
diagnostic techniques, concludes that a miner's respiratory or
pulmonary condition prevents or prevented the miner from engaging in
employment as described in paragraph (b)(1) of this section.
(c)(1) Total disability due to pneumoconiosis defined. A miner
shall be considered totally disabled due to pneumoconiosis if
pneumoconiosis, as defined in Sec. 718.201, is a substantially
contributing cause of the miner's totally disabling respiratory or
pulmonary impairment. Pneumoconiosis is a ``substantially contributing
cause'' of the miner's disability if it:
(i) Has an adverse effect on the miner's respiratory or pulmonary
condition; or
(ii) Worsens a totally disabling respiratory or pulmonary
impairment which is caused by a disease or exposure unrelated to coal
mine employment.
(2) Except as provided in Sec. 718.305 and paragraph (b)(2)(iii) of
this section, proof that the miner suffers or suffered from a totally
disabling respiratory or pulmonary impairment as defined in paragraphs
(b)(2)(i), (b)(2)(ii), (b)(2)(iv) and (d) of this section shall not, by
itself, be sufficient to establish that the miner's impairment is or
was due to pneumoconiosis. Except as provided in paragraph (d), the
cause or causes of a miner's total disability shall be established by
means of a physician's documented and reasoned medical report.
(d) Lay evidence. In establishing total disability, lay evidence
may be used in the following cases:
(1) In a case involving a deceased miner in which the claim was
filed prior to January 1, 1982, affidavits (or equivalent sworn
testimony) from persons knowledgeable of the miner's physical condition
shall be sufficient to establish total (or under Sec. 718.306 partial)
disability due to pneumoconiosis if no medical or other relevant
evidence exists which addresses the miner's pulmonary or respiratory
condition.
(2) In a case involving a survivor's claim filed on or after
January 1, 1982, but prior to June 30, 1982, which is subject to
Sec. 718.306, affidavits (or equivalent sworn testimony) from persons
knowledgeable of the miner's physical condition shall be sufficient to
establish total or partial disability due to pneumoconiosis if no
medical or other relevant evidence exists which addresses the miner's
pulmonary or respiratory condition; however, such a determination shall
not be based solely upon the affidavits or testimony of the claimant
and/or his or her dependents who would be eligible for augmentation of
the claimant's benefits if the claim were approved.
(3) In a case involving a deceased miner whose claim was filed on
or after January 1, 1982, affidavits (or equivalent sworn testimony)
from persons knowledgeable of the miner's physical condition shall be
sufficient to establish total disability due to pneumoconiosis if no
medical or other relevant evidence exists which addresses the miner's
pulmonary or respiratory condition; however, such a determination shall
not be based solely upon the affidavits or testimony of any person who
would be eligible for benefits (including augmented benefits) if the
claim were approved.
(4) Statements made before death by a deceased miner about his or
her physical condition are relevant and shall be considered in making a
determination as to whether the miner was totally disabled at the time
of death.
(5) In the case of a living miner's claim, a finding of total
disability due to pneumoconiosis shall not be made solely on the
miner's statements or testimony.
(e) In determining total disability to perform usual coal mine
work, the following shall apply in evaluating the miner's employment
activities:
(1) In the case of a deceased miner, employment in a mine at the
time of death shall not be conclusive evidence that the miner was not
totally disabled. To disprove total disability, it must be shown that
at the time the miner died, there were no changed circumstances of
employment indicative of his or her reduced ability to perform his or
her usual coal mine work.
(2) In the case of a living miner, proof of current employment in a
coal mine shall not be conclusive evidence that the miner is not
totally disabled unless it can be shown that there are no changed
circumstances of employment indicative of his or her reduced ability to
perform his or her usual coal mine work.
(3) Changed circumstances of employment indicative of a miner's
reduced ability to perform his or her usual coal mine work may include
but are not limited to:
(i) The miner's reduced ability to perform his or her customary
duties without help; or
(ii) The miner's reduced ability to perform his or her customary
duties at his or her usual levels of rapidity, continuity or
efficiency; or
(iii) The miner's transfer by request or assignment to less
vigorous duties or to duties in a less dusty part of the mine.
Sec. 718.205 Death due to pneumoconiosis.
(a) Benefits are provided to eligible survivors of a miner whose
death was due to pneumoconiosis. In order to receive benefits, the
claimant must prove that:
(1) The miner had pneumoconiosis (see Sec. 718.202);
(2) The miner's pneumoconiosis arose out of coal mine employment
(see Sec. 718.203); and
(3) The miner's death was due to pneumoconiosis as provided by this
section.
(b) For the purpose of adjudicating survivors' claims filed prior
to January 1, 1982, death will be considered due to pneumoconiosis if
any of the following criteria is met:
(1) Where competent medical evidence established that the miner's
death was due to pneumoconiosis, or
[[Continued on page 55015]]
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