[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]]

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Part II





Department of Labor





_______________________________________________________________________



Employment Standards Administration



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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

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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]]