ESA, Regulations Implementing the Federal Coal Mine Health and Safety Act of 1969,
as Amended; Final Rule, 20 CFR Parts 718 and 725, 68 Fed. Reg. 69929 (Dec. 25, 2003)
as Amended; Final Rule, 20 CFR Parts 718 and 725, 68 Fed. Reg. 69929 (Dec. 25, 2003)
[Federal Register: December 15, 2003 (Volume 68, Number 240)]
[Rules and Regulations]
[Page 69929-69935]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15de03-21]
[[Page 69929]]
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Part IV
Department of Labor
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Employment Standards Administration
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20 CFR Parts 718 and 725
Regulations Implementing the Federal Coal Mine Health and Safety Act of
1969, as Amended; Final Rule
[[Page 69930]]
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DEPARTMENT OF LABOR
Employment Standards Administration
20 CFR Parts 718 and 725
RIN 1215-AB40
Regulations Implementing the Federal Coal Mine Health and Safety
Act of 1969, as Amended
AGENCY: Employment Standards Administration, Labor.
ACTION: Final rule.
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SUMMARY: This final rule implements the decision of the United States
Court of Appeals for the District of Columbia Circuit resolving a broad
challenge to numerous provisions of a final rule, promulgated by the
Department of Labor on December 20, 2000, amending the regulations
implementing the Black Lung Benefits Act. In its June 14, 2002 opinion,
the court reviewed both the substance of many provisions of the rule
and the applicability of numerous provisions. It upheld the substance
of all but one provision, and held that several other provisions were
inapplicable to certain claims. The court therefore affirmed in part
the district court's decision upholding the rule in its entirety,
reversed in part, and remanded the case for further proceedings
consistent with its opinion. The district court, in turn, remanded the
case to the Department for further proceedings in accordance with the
D.C. Circuit's opinion. This final rule implements the D.C. Circuit's
opinion. It makes no other changes.
DATES: Effective December 15, 2003.
FOR FURTHER INFORMATION CONTACT: James L. DeMarce, (202) 693-0046
SUPPLEMENTARY INFORMATION:
I. Regulatory History
On January 22, 1997, the Department issued a proposed rule to amend
the regulations implementing the Black Lung Benefits Act. 62 FR 3338-
3435 (Jan. 22, 1997). The Department received almost 200 written
submissions from interested persons and organizations, and it held two
hearings at which over 50 people testified. After carefully reviewing
the comments and testimony, the Department issued a second notice of
proposed rulemaking. 64 FR 54966-55072 (Oct. 8, 1999). The second
notice proposed changing several important provisions in the initial
proposal, and explained the Department's decision not to change other
regulations. The Department received 37 written submissions during the
ensuing 90-day comment period. After carefully reviewing these
comments, the Department issued its final rule on December 20, 2000. 65
FR 79920-80107 (Dec. 20, 2000).
The National Mining Association and several other plaintiffs filed
suit against the Department in the United States District Court for the
District of Columbia, challenging a substantial number of the
provisions in the final rule. The court upheld the validity of each of
the challenged provisions and rejected the plaintiffs' argument that
certain regulations should not apply to claims pending on the rule's
effective date. National Mining Ass'n v. Chao, 160 F.Supp.2d 47 (D.D.C.
2001). It also rejected a challenge to the procedural adequacy of the
Department's rulemaking proceeding, holding that the rulemaking record
met the procedural requirements of the Administrative Procedure Act.
160 F.Supp.2d at 87-88. The plaintiffs appealed to the D.C. Circuit.
II. D.C. Circuit's Review of the Final Rule
Substantive Challenges
In National Mining Ass'n v. Dep't of Labor, 292 F.3d 849 (D.C. Cir.
2002), the court upheld the validity of all of the challenged
provisions except one. The court upheld the following regulations: 20
CFR 718.104(d), 718.201(a)(2) and (c), 718.204(a), 718.205(c)(5),
725.101(a)(6), 725.309(d), 725.310(b), 725.366(b), 725.408, 725.414,
725.456, 725.457(d), 725.458, 725.495(c), 725.701(e). The court
invalidated one provision, however, holding that the Department lacked
the specific statutory authorization necessary to shift the cost of
cross-examination of an indigent claimant's witness to other parties in
the absence of a successfully prosecuted claim. 292 F.3d at 875
(discussion of Sec. 725.459). The Department's revision to Sec.
725.459 is explained in detail under III, Explanation of Changes.
The court upheld the substance of other provisions based upon the
plain language of the rules, the preamble explanation of their intended
application, the rulemaking record and the government's representations
made in the course of briefing and oral argument. The decision outlines
the substance and intended application of the challenged rules, as
described below.
Treating Physicians' Opinions--20 CFR 718.104(d)
Section 718.104(d) requires the adjudicator to give consideration
to the relationship between the miner and any treating physician whose
report is admitted into the record, and provides that, in appropriate
cases, the relationship between the miner and his treating physician
may constitute substantial evidence in support of the adjudicator's
decision to give that physician's opinion controlling weight. In
upholding the substance of the provision, the court recognized that the
rule permits, but does not mandate, that the adjudicator give
controlling weight to a treating physician's opinion. A decision to
give a treating physician's opinion controlling weight must 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."
292 F.3d at 870 (quoting 20 CFR 718.104(d)(5)). Just as the Department
had explained in the preamble to the final rule (65 FR at 79933-79934,
] (h) (Dec. 20, 2000)), the court stated that the provision is not a
presumption that "relieves claimants of the burden of proving both
pneumoconiosis and the credibility of the doctor's opinion." 292 F.3d
at 870. Indeed, the court stated specifically that neither the
regulation's plain language nor the Secretary's interpretation relieves
claimants of the burden of proof. Id.
Definition of "Pneumoconiosis"--20 CFR 718.201
Section 718.201(a) defines pneumoconiosis as "a chronic dust
disease of the Lung and its sequelae, including respiratory and
pulmonary impairments, arising out of coal mine employment." It
further provides that "this definition includes both medical, or
'clinical', pneumoconiosis and statutory, or 'legal', pneumoconiosis."
Id. Section 718.201(a)(2) provides that the definition includes "any
chronic restrictive or obstructive pulmonary disease arising out of
coal mine employment." Section 718.201(c) provides that pneumoconiosis
"is recognized as a latent and progressive disease which may first
become detectable only after the cessation of coal mine dust
exposure."
The court upheld Sec. 718.201(a), stating that, by recognizing
both "clinical" and "legal" pneumoconiosis, the regulation "merely
adopts a distinction embraced by all six circuits to have considered
the issue," and "neither 'expand[s]' nor 'redefine[s]' the meaning of
pneumoconiosis beyond its statutory definition." 292 F.3d at 869. The
court also noted that even if the regulation could be read to change
the definition, the Black Lung Benefits Act gives the Secretary the
authority to supplement
[[Page 69931]]
statutory terms. Id. The court upheld Sec. 718.201(c), holding it had
sufficient support in the rulemaking record. The court cited scientific
evidence in the rulemaking record indicating that pneumoconiosis can be
latent and progressive. The court cited two studies, one "indicating
that pneumoconiosis is latent and progressive in--at most--eight
percent of cases," and the other "indicating that pneumoconiosis is
latent and progressive as much as 24% of the time." 292 F.3d at 869.
Consistent with the Department's argument, the court therefore
interpreted the regulation to mean that pneumoconiosis can be a latent
and progressive disease, not that pneumoconiosis is always or typically
a latent and progressive disease. Id. There is no irrebuttable
presumption that each miner's pneumoconiosis is latent or progressive.
The burden of proving the presence of pneumoconiosis is always on the
miner. As the Department explained in the preamble to the final rule,
"the miner continues to bear the burden of establishing all of the
statutory elements of entitlement." 65 FR at 79972 (Dec. 20, 2000).
Total Disability Rule--20 CFR 718.204(a)
Section 718.204(a) provides, in part, that "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." In upholding this provision,
the court stated that there is "an obvious rational basis for the
rule: the statute only pertains to whether a miner is disabled 'due to
pneumoconiosis,' and evidence of nonpulmonary conditions has no
relevance to that inquiry." 292 F.3d at 873. Recognizing that the rule
is consistent with the holdings of three circuits and abrogates the
holding of another, see 65 FR 79947, ] (c) (Dec. 20, 2000), the court
explained that "regulations promulgated to clarify disputed
interpretations of a regulation are to be encouraged. Tidying-up a
conflict in the circuits with a clarifying regulation permits a
nationally uniform rule without the need for the Supreme Court to essay
the meaning of every debatable regulation."' 292 F.3d at 873 (quoting
Pope v. Shalala, 998 F.2d 473, 486 (7th Cir. 1993)).
Establishing Death Due to Pneumoconiosis--20 CFR 718.205(c)
Section 718.205(c)(2) provides, in part, that for the purpose of
adjudicating survivors' claims filed on or after January 1, 1982, death
will be considered due to pneumoconiosis "[w]here pneumoconiosis was a
substantially contributing cause or factor leading to the miner's
death. * * *" Section 718.205(c)(5), in turn, provides that
"[p]neumoconiosis is a 'substantially contributing cause' of a miner's
death if it hastens the miner's death." In upholding this provision,
the court noted that the rulemaking record supported the Department's
conclusion that "pneumoconiosis [can] weaken the body's defenses to
infections and increase susceptibility to other disease processes."
292 F.3d at 871 (quoting 65 FR 79950 (Dec. 20, 2000)). The court
recognized that the provision "nowhere mandates the conclusion that
pneumoconiosis be regarded as a hastening cause of death," and that it
"expressly requires claimants to prove that pneumoconiosis is the
hastening cause" of death. 292 F.3d at 871. As the Department
explained in the preamble to the final rule: (1) the survivor must
"submit credible medical evidence establishing a detectable hastening
of the miner's death on account of pneumoconiosis," 65 FR 79949, ] (b)
(Dec. 20, 2000); and (2) "the burden of persuasion remains with the
survivor to prove that the miner's death was due to pneumoconiosis."
65 FR 79951, ] (f) (Dec. 20, 2000).
Definition of "Benefits"--20 CFR 725.101(a)(6)
Section 725.101(a)(6) includes in the definition of "benefits"
the "expenses related to the medical examination and testing
authorized by the district director pursuant to Sec. 725.406." The
costs of such medical examination and testing are paid by the Black
Lung Disability Trust Fund and are reimbursed by the employer only if
benefits are ultimately awarded. See 20 CFR 725.406(e); 292 F.3d at
865-866. In upholding the substance of this provision, the court noted
"the Black Lung Benefits Act's express authorization to '[t]he
Secretary * * * to charge the cost of examination * * * to the
employer.' " 292 F.3d at 875 (quoting 33 U.S.C. 907(e), as
incorporated by 30 U.S.C. 932(a)).
Subsequent Claims--20 CFR 725.309(d)
Section 725.309(d) provides, in part, that a subsequent claim
"shall 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." A
subsequent or additional claim is a claim filed more than one year
after the denial of a claim previously filed by the same claimant. The
court upheld this provision because: (1) The regulatory language
squarely places the burden of proving a change in a condition of
entitlement on the claimant; and (2) Sec. 725.309(d) does not violate
res judicata or traditional notions of finality because proof of the
change must be based on evidence of the claimant's current condition.
292 F.3d at 870. See also 65 FR 79973, ] (d) (Dec. 20, 2000)
(explaining that "new evidence establish[ing] that [a miner's]
condition has worsened" is required to establish the necessary
change). The claimant's condition at the time the previous claim was
denied is not relevant to proving a change in a condition of
entitlement. 292 F.3d at 870. Moreover, even after establishing a
change in one condition of entitlement, the miner still bears the
burden of proving the remaining conditions of entitlement. 292 F.3d at
861.
Attorneys' Fees--20 CFR 725.366(b)
Section 725.366(b) provides that in calculating an award of an
attorney's fees, the ALJ "shall take into account" a number of
factors, including "the quality of the representation, the
qualifications of the representative, [and] the complexity of the legal
issues involved." The court upheld this provision, noting it required
consideration of no factors not already included in the calculation of
shifted attorneys' fees by the Supreme Court. In response to the
argument that the rule would result in the "double counting" of some
factors, the court stated that "the factors identified in Sec.
725.366(b) do not supplant the 'lodestar' method of calculating
reasonable fees, or enhance the lodestar fee once it is calculated."
292 F.3d at 875 (quoting government's brief).
Evidence Limitations--20 CFR 725.310(b), .414, .456, .457(d), .458
Sections 725.310(b), 725.414, 725.456, 725.457(d), and 725.458
place various limits on the amount and timing of evidence admissible in
claims proceedings. The court upheld all of these provisions, stating
that the Administrative Procedure Act and the Black Lung Benefits Act
authorize them. In holding that the new evidentiary limits are not at
all "artificial," the court quoted the Department's explanation for
these limitations: they "will enable ALJs to focus their attention 'on
the quality of the medical evidence in the record before [them].' "
292 F.3d at 874 (quoting 64 FR 54994 (Oct. 8, 1999)).
[[Page 69932]]
Criteria for Determining a Responsible Operator--20 CFR 725.408,
.495(c)
Section 725.408 establishes a deadline for a coal mine operator
named a "potentially liable operator" in a specific claim to submit
evidence regarding its financial status and employment of the miner if
it disagrees with its identification. Upholding the validity of this
provision, the court stated that the section shifted only the burden of
production, not the burden of proof, and that "it requires nothing
more than that operators must submit evidence rebutting an assertion of
liability within a given period of time." 292 F.3d at 871. "[T]he
evidence required by Sec. 725.408 is limited to evidence relevant to
the notified operator's own employment of the miner and that operator's
financial status." 65 FR at 79986, ] (e) (Dec. 20, 2000)).
Section 725.495(c) provides that once an operator has been
designated as the "responsible operator" (the operator responsible
for a specific claim) from among the companies named potentially liable
operators, it may be relieved of liability only if it proves either
that it is financially incapable of assuming liability or that another
potentially liable operator more recently employed the miner and is
capable of assuming liability. The court upheld this provision,
recognizing that it shifted the burden of proof, because it applies
only after the operator has been designated as the responsible
operator. 292 F.3d at 872. See also 65 FR 80009, ] (e) (Dec. 20, 2000);
64 FR at 54973 (Oct. 8, 1999); 62 FR at 3365 (Jan. 22, 1997). In
seeking to be excused from liability in such circumstances, the court
noted "the operator becomes the 'proponent' of a remedial order of the
ALJ and, therefore, the party to which [the APA] assigns the burden of
proof." 292 F.3d at 872 (quoting 160 F.Supp.2d at 71). Given that the
provision "affords a mine operator liable for a claimant's Black Lung
disease the opportunity to shift liability to another party, it is
hardly irrational to require the operator to bear the burden of proving
that the other party is in fact liable." 292 F.3d at 872.
edical Benefits Presumption--20 CFR 725.701(e)
Section 725.701(e) provides that if a miner who is totally disabled
due to pneumoconiosis receives treatment for a pulmonary disorder,
there is a rebuttable presumption that the disorder is caused or
aggravated by the miner's pneumoconiosis. If the presumption is not
rebutted, the cost of the treatment is compensable. The court upheld
this provision, noting that the Department explained in the preamble to
the final rule that the provision "shifts only the burden of
production to operators to produce evidence that the treated disease
was unrelated to the miner's pneumoconiosis; the ultimate burden of
proof remains on claimants at all times." 292 F.3d at 872 (citing 65
FR 80022 (Dec. 20, 2000)). The court also agreed with the Department's
preamble explanation, stating that "there is a clear rational
relationship between the fact proved (that a miner suffered from
totally disabling pneumoconiosis in the past) and the fact presumed
(that the miner's treated pulmonary disorder is related to that
pneumoconiosis)." 292 F.3d at 873 (citing 65 FR 80023 (Dec. 20,
2000)). The court concluded that this rational relationship "suffices
for purposes of our review." 292 F.3d at 873.
Retroactivity Challenges
The court also addressed the contention that some of the new
provisions were impermissibly retroactive, that is, could not be
applied to claims for benefits pending on January 19, 2001, the
effective date of the final rule. The court agreed with this contention
as to eight provisions--the second sentence of Sec. 718.204(a), as
well as Sec. Sec. 725.101(a)(31), 725.204, 725.212(b), 725.213(c),
725.214(d), 725.219(d), and 725.701(e). The court noted, as had the
Department in the preamble to the initial notice of proposed rulemaking
(see 62 FR at 3347 (Jan. 22, 1997)), that the Department is not
authorized to promulgate retroactive Black Lung benefits regulations.
The court explained that application of a regulation to a claim pending
on the regulation's effective date would be impermissibly retroactive
if the regulation "change[d] the legal landscape." 292 F.3d at 859.
The court determined that the eight provisions listed above did change
the legal landscape, and that application of these provisions to claims
pending on the effective date of the final rule was therefore improper.
292 F.3d at 864-868. The Department's revisions to effectuate the
court's holdings are found at 20 CFR 718.2 and 725.2(c), and are
explained in detail under III, Explanation of Changes.
In rejecting challenges to the applicability of 20 CFR 718.104(d),
718.201(a)(2) and (c), 725.101(a)(6), and 725.309(d), the court
reasoned as follows:
Treating Physicians' Opinions--20 CFR 718.104(d)
In holding that the treating physician rule, Sec. 718.104(d), is
not impermissibly retroactive, the court explained that the rule
"codifies judicial precedent and does not work a substantive change in
the law." 292 F.3d at 861.
Definition of "Pneumoconiosis"--20 CFR 718.201
Holding that Sec. 718.201(a)(2)--which includes "chronic
restrictive or obstructive pulmonary disease arising out of coal mine
employment" in the definition of "pneumoconiosis"--is not
impermissibly retroactive, the court concluded that the provision
"does not alter the requirement that individual miners must
demonstrate that their obstructive Lung disease arose out of their work
in the mines." 292 F.3d at 863 (citing 65 FR 79938 (Dec. 20, 2000)).
The court noted that the rulemaking record supports the premise that
obstructive Lung disease may be caused by coal mining exposure, and
that this provision "does no more than reflect this reality." 292
F.3d at 862. It rejected the argument that the provision creates a
presumption that a miner's obstructive Lung disease is caused by
exposure to coal dust. It held, consistent with the Department's
preamble explanation, that the provision requires "that each miner
bear the burden of proving that his obstructive Lung disease did in
fact arise out of his coal mine employment." 65 FR at 79938 (Dec. 20,
2000). See 292 F.3d at 862-863. The court also rejected as
"meritless" the contention that the regulation permits an adjudicator
to "ignore a medical report if the reporting doctor concludes that a
miner's obstructive Lung disease was caused by smoking, rather than
mining." 292 F.3d at 863. "The regulation's plain text in no way
indicates that medical reports will be excluded if they conclude that a
particular miner's obstructive disease was caused by smoking, rather
than mining." Id.
Section 718.201(c) provides that pneumoconiosis is "recognized as
a latent and progressive disease which may first become detectable only
after the cessation of coal mine dust exposure." Holding that this
regulation is not impermissibly retroactive, the court rejected the
argument that the rule assumes that all pneumoconiosis is latent and
progressive as "based on a false reading of the rule." 292 F.3d at
863. The court explained that "[t]he rule simply prevents operators
from claiming that pneumoconiosis is never latent and progressive. The
medical literature
[[Page 69933]]
makes it clear that pneumoconiosis may be latent and progressive. * *
*" Id.
Definition of "Benefits"--20 CFR 725.101(a)(6)
In holding that Sec. 725.101(a)(6)--which defines "benefits" to
include "any expenses related to the medical examination and testing
authorized by the district director pursuant to Sec. 725.406"--is not
impermissibly retroactive, the court stated that the operators "have
not pointed to anything in the new definition that departs from the
system already in place under the old Sec. 725.406(c). Thus, the new
definition changes nothing and is not impermissibly retroactive." 292
F.3d at 866.
Subsequent Claims--20 CFR 725.309(d)
Holding that the subsequent claims rule, Sec. 725.309(d), is not
impermissibly retroactive, the court stated that the regulation
"applies only to claims filed after the regulations' effective date"
and, in any event, is not substantively new and therefore "does not
change the legal landscape." 292 F.3d at 863-864.
III. Explanation of Changes
In order to conform to the D.C. Circuit's holding invalidating the
witness-fee-shifting provision in Sec. 725.459, the Department must
revise that regulation. Similarly, to conform the regulations to the
court's retroactivity holdings, the Department must revise both Sec.
718.2 and Sec. 725.2(c). Those sections address the applicability of
the regulations in Parts 718 and 725. Since the court ruled that one
provision in Part 718 and several regulations in Part 725 were
impermissibly retroactive if applied to claims pending on January 19,
2001, both Sec. 718.2 and Sec. 725.2(c) must be revised.
20 CFR 718.2
(a) In the final rule promulgated on December 20, 2000, the
Department revised Sec. 718.204(a) by adding the following sentence:
"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." This revision clarified that non-respiratory/
pulmonary impairments are not relevant to the total disability
determination; thus, a miner who suffers from disabling pneumoconiosis
is totally disabled for purposes of the Black Lung Benefits Act
notwithstanding the existence of any independently disabling non-
respiratory/pulmonary impairments. The change codified the holdings in
Cross Mountain Coal Co. v. Ward, 93 F.3d 211, 216-217 (6th Cir. 1996);
Youghiogheny & Ohio Coal Co. v. McAngues, 996 F.2d 130, 134-135 (6th
Cir. 1993), cert. den. 510 U.S. 1040 (1994); Twin Pines Coal Co. v.
U.S. Dept. of Labor, 854 F.2d 1212, 1215 (10th Cir. 1988); and Peabody
Coal Co. v. Director, OWCP [Huber], 778 F.2d 358, 363 (7th Cir. 1985),
and emphasized the Department's disagreement with Peabody Coal Co. v.
Vigna, 22 F.3d 1388, 1394-1395 (7th Cir. 1994) (holding claimant's
entitlement precluded by disabling stroke which was unrelated to coal
mine employment and occurred before evidence of disability due to
pneumoconiosis). See 62 FR at 3344-3345 (Jan. 22, 1997); 64 FR at
54979, ] (b) (Oct. 8, 1999); 65 FR at 79947, ] (c) (Dec. 20, 2000). By
virtue of Sec. 718.2, this provision, located in the second sentence
of Sec. 718.204(a), applied to the adjudication of all claims filed
after March 31, 1980, including those pending on January 19, 2001. 20
CFR 718.2 ("This part is applicable to the adjudication of all claims
filed after March 31, 1980. * * *").
(b) Because the second sentence of Sec. 718.204(a) is a departure
from the Seventh Circuit's Vigna decision, the D.C. Circuit held the
rule impermissibly retroactive as applied to claims pending on January
19, 2001, the regulation's effective date. 292 F.3d at 864-865. The
court stressed, however, that it did not "intend to affect the law in
circuits that have adopted or might adopt positions that conform with
the Secretary's interpretation. * * * Instead, the effect of our ruling
is to leave the state of the law on this question exactly as it was
prior to the regulations' promulgation" for pending cases. Id. The
court otherwise upheld the substance of the regulation, holding that
the "regulation has a rational basis and is consistent with the APA."
292 F.3d at 873.
(c) The Department has revised Sec. 718.2 to reflect the D.C.
Circuit's conclusion that the second sentence of Sec. 718.204(a) may
not be applied to claims pending on the effective date of the
regulations: January 19, 2001.
20 CFR 725.2(c)
(a)(i) In the final rule issued on December 20, 2000, the
Department amended the definition of "workers' compensation law"
(previously codified at 20 CFR 725.101(a)(4) (2000)) in Sec.
725.101(a)(31) to clarify its longstanding interpretation of the
statute that payments made from a state's general revenues are not
workers' compensation benefits subject to offset under the Black Lung
Benefits Act. 62 FR 3348-3349 (Jan. 22, 1997); 64 FR 54982-54983, ] (e)
(Oct. 8, 1999); 65 FR 79958-79959, ] (e) (Dec. 20, 2000). The revision
responded to a Third Circuit decision rejecting the Department's
position as inconsistent with the language of the prior implementing
regulation. Director, OWCP v. Eastern Associated Coal Co. [O'Brockta],
54 F.3d 141, 148-150 (3d Cir. 1995). Despite its holding, the Third
Circuit agreed that the Department's position reflected a permissible
interpretation of the statute, and noted that the Department "has the
means and obligation to amend its regulations to provide for" its
interpretation. 54 F.3d at 150. (ii) Because the Third Circuit had
rejected the Department's position under the prior regulations, the
D.C. Circuit held the revised rule impermissibly retroactive when
applied "to claims that were already pending when the new regulation
took effect" or to "adjust payments being made on settled or resolved
claims." 292 F.3d at 866. The court emphasized that "other circuits
remain free to apply the Secretary's longstanding interpretation of the
prior regulation to pending claims." Id. (iii) To reflect the D.C.
Circuit's decision, the Department has revised Sec. 725.2(c) in two
ways. First, the Department has included Sec. 725.101(a)(31) in the
list of regulations that do not apply to claims pending on January 19,
2001. Second, the Department has revised the first two sentences of the
subsection to clarify that the regulations included in the list do not
apply to benefit payments made on claims pending on January 19, 2001,
even where the benefit payments are made after January 19, 2001. Thus,
Sec. 725.101(a)(31) applies only to claims filed after January 19,
2001.
(b)(i) In the final rule issued on December 20, 2000, the
Department revised a number of provisions relating to the criteria for
determining the relationship and dependency of a miner's dependents and
survivors, including Sec. Sec. 725.204, 725.212(b), 725.213(c),
725.214(d), 725.219(d). These revisions were necessary to reflect
certain amendments to the underlying incorporated Social Security Act
provisions and to the Black Lung Benefits Act, and to clarify the
Department's policy with regard to the issues involved. 62 FR 3349-3351
(Jan. 22, 1997); 65 FR 79963-79967 (Dec. 20, 2000). (ii) The D.C.
Circuit concluded that these revisions are impermissibly retroactive
"as applied to claims other than those filed after the regulations'
[[Page 69934]]
effective date" because they "expand the scope of coverage by making
more dependents and survivors eligible for benefits." 292 F.3d at 866-
867. The court recognized that the Department's regulations also
contemplated application of these revisions to "all benefits payments
made" after January 19, 2001, even payments made on claims finally
adjudicated prior to that time. The court rejected the Department's
approach and reiterated that "it would be unlawfully retroactive to
apply the definitions to any claims other than those filed on or after
the regulations' effective date." 292 F.3d at 867. (iii) To reflect
the D.C. Circuit's decision, the Department has revised Sec. 725.2(c)
in two ways. First, the Department has included Sec. Sec. 725.204,
725.212(b), 725.213(c), 725.214(d), and 725.219(d) in the list of
regulations that do not apply to claims pending on January 19, 2001.
Second, the Department has revised the first two sentences of the
subsection to clarify that the regulations included in the list do not
apply to benefits payments made on claims pending on January 19, 2001,
even where the benefit payments are made after January 19, 2001.
Through these two revisions, the Department has ensured that the
regulations deemed impermissibly retroactive by the D.C. Circuit will
not be applied either to claims filed before the effective date of the
regulations or to any benefits paid on those claims. Under the plain
language of the revised regulation, the regulations that are not listed
will continue to apply to all benefits payments made, including those
paid pursuant to claims filed prior to the effective date of the
regulations. The regulations listed in Sec. 725.2(c) apply only to
claims filed after January 19, 2001.
(c) The court mentioned both Sec. 725.209 and Sec. 725.219(c) in
the course of discussing whether revisions made to the criteria for
determining the relationship and dependency of a miner's dependents and
survivors found in Part 725, Subpart B could be applied to pending
claims, but did not hold that either regulation is impermissibly
retroactive. 292 F.3d at 867. Neither of these regulations was revised
in any substantive way in the final rule issued on December 20, 2000.
Although the Department initially proposed substantive changes to Sec.
725.209, finally-revised Sec. 725.209 contains only one revision,
which eliminated unnecessary words. Compare 20 CFR 725.209(a)(2)(ii)
(1999) with 20 CFR 725.209(a)(2)(ii) (2002); Compare 62 FR at 3350
(Jan. 22, 1997) with 65 FR at 79963 (Dec. 20, 2000). And Sec.
725.219(c) was not revised at all. Compare 20 CFR 725.219(c) (1999)
with 20 CFR 725.219(c) (2002). Accordingly, the Department has not
added either of these regulations to the list set forth in Sec.
725.2(c), and both regulations apply to claims pending on January 19,
2001.
(d)(i) In the final rule issued on December 20, 2000, the
Department added Sec. 725.701(e) to establish a rebuttable presumption
of medical benefits coverage for the treatment of any pulmonary
disorder suffered by a miner totally disabled due to pneumoconiosis
arising out of coal mine employment. This presumption is derived from a
judicially-created presumption first announced by the Fourth Circuit in
Doris Coal Co. v. Director, OWCP, 938 F.2d 492 (4th Cir. 1991), and
later refined by that court in Gulf & Western Indus. v. Ling, 176 F.3d
226 (4th Cir. 1999), and General Trucking Corp. v. Salyers, 175 F.3d
322 (4th Cir. 1999). 65 FR at 80021-80022 (Dec. 20, 2000). The
Department also recognized the Sixth Circuit had held in Glen Coal Co.
v. Seals, 147 F.3d 502 (6th Cir. 1998), that the administrative law
judge and the Benefits Review Board erred in applying the Doris Coal
presumption to a miner whose coal mine employment took place within the
jurisdiction of the Sixth Circuit. 65 FR at 80021-80022, ] (a) (Dec.
20, 2000). (ii) Because the D.C. Circuit found the rebuttable
presumption established by Sec. 725.701(e) contradicted by the Sixth
Circuit's decision in Seals, it held that the rule is impermissibly
retroactive when applied to pending claims. The court explained that
its holding was "not intended to affect the law in the Fourth Circuit
or any other circuit that would have embraced the Doris Coal
presumption. The judicial presumption remains the law in the circuits
that adopt it." 292 F.3d at 865. (iii) To reflect the D.C. Circuit's
decision, the Department has revised Sec. 725.2(c) to include Sec.
725.701(e) in the list of regulations that do not apply to claims
pending on January 19, 2001.
20 CFR 725.459
(a) In the final rule issued on December 20, 2000, the Department
revised Sec. 725.459(b) to include a provision relieving an indigent
claimant of the cost of producing his or her witnesses for cross-
examination, regardless of whether such indigent claimant ultimately
prevailed: "If the claimant is the proponent of the witness whose
cross-examination is sought, and demonstrates, within time limits
established by the administrative law judge, that he would be deprived
of ordinary and necessary living expenses if required to pay the
witness fee and mileage necessary to produce that witness for cross-
examination, the administrative law judge shall apportion the costs of
such cross-examination among the parties to the case." The Department
also added a new subsection (d) adopting certain criteria for
determining indigency in this context. See 64 FR at 54996-54997 (Oct.
8, 1999); 65 FR at 80003, ] (a) (Dec. 20, 2000).
(b) The D.C. Circuit held these provisions in Sec. 725.459 invalid
under West Virginia University Hospitals, Inc. v. Casey, 499 U.S. 83,
97-100 (1991), because the court found no specific statutory authority
for shifting this cost to an employer in the absence of a successfully
prosecuted claim. 292 F.3d at 875.
(c) To reflect the D.C. Circuit's decision, the Department has
revised Sec. 725.459 to eliminate the fourth sentence and the
beginning of the fifth sentence of paragraph (b). The Department has
also eliminated paragraph (d). Thus, "the proponent of [a] witness
[called for cross-examination] shall pay the witness' fee," 20 CFR
725.459(b). This rule applies to all parties, including the claimant.
IV. Rulemaking Analyses
Administrative Procedure Act
Section 553 of the Administrative Procedure Act, 5 U.S.C.
553(b)(B), provides that, when an agency for good cause finds that
notice and public procedure are impracticable, unnecessary, or contrary
to the public interest, the agency may issue a rule without providing
notice and an opportunity for public comment. The Department has
determined that there is good cause to conclude that notice and public
procedure are unnecessary because this action is taken merely to
conform the regulations to the D.C. Circuit's decision. Because this
action does not change the law, but merely reflects the state of the
law as determined by the D.C. Circuit, there is good cause, within the
meaning of 5 U.S.C. 553(d)(3), to make the action effective upon
publication.
Regulatory Flexibility Act
Because the Department has found good cause to conclude that this
action is not subject to notice and public procedure under the
Administrative Procedure Act, it is not subject to the regulatory
flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601
et seq.).
[[Page 69935]]
Unfunded Mandates Reform Act
This action is not subject to sections 202 or 205 of the Unfunded
andates Reform Act (UMRA, Pub. L. 104-4) because the Department has
made a good cause finding the action is not subject to notice and
public procedure under the Administrative Procedure Act. In addition,
this action does not significantly or uniquely affect small governments
or impose a significant intergovernmental mandate as described in
sections 203 and 204 of UMRA.
Paperwork Reduction Act
This action does not impose an information collection burden under
the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).
Executive Order 12866
This action is not a "significant regulatory action" and is
therefore not subject to review by the Office of Management and Budget
under Executive Order 12866 (58 FR 51735 (Oct. 4, 1993)).
Executive Order 13132
This action will not have substantial direct effect on the States,
on the relationship between the national government and the States, or
on the distribution of power and responsibilities among the various
levels of government, as described in Executive Order 13132 (64 FR
43255 (Aug. 10, 1999)).
List of Subjects in 20 CFR Parts 718 and 725
Black Lung benefits, Claims, Health care, Lung diseases, Miners,
ines, Workers' compensation, X-rays.
For the reasons set forth in the preamble, title 20, Chapter VI,
Subchapter B of the Code of Federal Regulations is amended as set forth
below:
Signed at Washington, DC, this 26th day of November, 2003.
Victoria Lipnic,
Assistant Secretary for Employment Standards.
PART 718--STANDARDS FOR DETERMINING COAL MINERS' TOTAL DISABILITY
OR DEATH DUE TO PNEUMOCONIOSIS
0
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), 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.
0
2. Section 718.2 is revised to read as follows:
Sec. 718.2 Applicability of this part.
With the exception of the second sentence of Sec. 718.204(a), 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. The second sentence of Sec.
718.204(a) is applicable to the adjudication of all claims filed after
January 19, 2001. 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.
PART 725--CLAIMS FOR BENEFITS UNDER PART C OF TITLE IV OF THE
FEDERAL MINE SAFETY AND HEALTH ACT, AS AMENDED
0
1. The authority citation for Part 725 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., 921, 932, 936; 33 U.S.C. 901 et
seq., Secretary's Order 7-87, 52 FR 48466, Employment Standards
Order No. 90-02.
0
2. Section 725.2 is amended by revising paragraph (c) to read as
follows:
Sec. 725.2 Purpose and applicability of this part.
* * * * *
(c) The provisions of this part reflect revisions that became
effective on January 19, 2001. This part applies to all claims filed
after January 19, 2001 and all benefits payments made on such claims.
With the exception of the following sections, this part shall also
apply to the adjudication of claims that were pending on January 19,
2001 and all benefits payments made on such claims: Sec. Sec.
725.101(a)(31), 725.204, 725.212(b), 725.213(c), 725.214(d),
725.219(d), 725.309, 725.310, 725.351, 725.360, 725.367, 725.406,
725.407, 725.408, 725.409, 725.410, 725.411, 725.412, 725.414, 725.415,
725.416, 725.417, 725.418, 725.421(b), 725.423, 725.454, 725.456,
725.457, 725.458, 725.459, 725.465, 725.491, 725.492, 725.493, 725.494,
725.495, 725.547, 725.701(e). The version of those sections set forth
in 20 CFR, parts 500 to end, edition revised as of April 1, 1999, apply
to the adjudications of claims that were pending on January 19, 2001.
For purposes of construing the provisions of this section, a claim
shall be considered pending on January 19, 2001 if it was not finally
denied more than one year prior to that date.
0
3. Section 725.459 is amended by revising paragraph (b), and by
removing paragraph (d), to read as follows.
Sec. 725.459 Witness fees
* * * * *
(b) If the witness' proponent does not intend to call the witness
to appear at a hearing or deposition, any other party may subpoena the
witness for cross-examination. The administrative law judge (ALJ) shall
authorize the least intrusive and expensive means of cross-examination
as the ALJ deems appropriate and necessary to the full and true
disclosure of the facts. If such witness is required to attend the
hearing, give a deposition or respond to interrogatories for cross-
examination purposes, the proponent of the witness shall pay the
witness' fee. The fund shall remain liable for any costs associated
with the cross-examination of the physician who performed the complete
pulmonary evaluation pursuant to Sec. 725.406.
(c) * * *
[FR Doc. 03-30854 Filed 12-12-03; 8:45 am]
BILLING CODE 4510-27-P