Regulations Implementing the Federal Coal Mine Health and Safety Act of 1969, as Amended

SUMMARY: On January 22, 1997, the Department issued a proposed rule to

amend the regulations implementing the Black Lung Benefits Act. The

Department initially allowed interested parties until March 24, 1997 to

file comments, but extended that deadline twice. When the comment

period finally closed on August 21, 1997, the Department had received

almost 200 written submissions from coal miners, coal mine operators,

insurers, physicians, and attorneys. In addition, the Department held

two hearings, one on June 19, 1997 in Charleston, West Virginia, and

another on July 22-23, 1997 in Washington, D.C. Over 50 people

testified at the Department's hearings. In total, the Department heard

from over 100 former coal miners and members of their families, over 50

coal mine operators and insurance companies that provide black lung

benefits insurance, eight physicians, eight attorneys representing both

claimants and coal mine operators, nine legislators at the federal and

state levels, and groups as diverse as the United Mine Workers of

America, the National Black Lung Association, the National Mining

Association, the American Insurance Association, and the American Bar

Association.

The Department has reviewed all of the comments and testimony, and

has decided to issue a second proposal, revising a number of the most

important regulations contained in the earlier proposal. In some cases,

the Department has proposed additional changes to these regulations. In

other cases, the Department has explained its decision not to alter its

proposal based on the comments received to date. Finally, the

Department has prepared an initial regulatory flexibility analysis. The

Department's second proposal is intended to accomplish two purposes.

First, it will provide notice to all interested parties of the proposed

revisions, as well as of the initial regulatory flexibility analysis

set forth in this document. Second, the re-proposal will allow small

entities that may have been unaware of the Department's earlier

proposal to submit comments on the entire proposed rule.

DATES: Comments must be submitted on or before December 7, 1999.

ADDRESSES: All comments concerning these proposed regulations should be

addressed to James L. DeMarce, Director, Division of Coal Mine Workers'

Compensation, Room C-3520, Frances Perkins Building, 200 Constitution

Ave., NW., Washington, DC 20210.

FOR FURTHER INFORMATION CONTACT: James L. DeMarce, (202) 693-0046.

SUPPLEMENTARY INFORMATION:

This notice reprints 20 CFR Parts 718, 722, 725, and 726 in their

entirety for the convenience of interested parties. This notice thus

necessarily includes proposed revisions contained in the Department's

original notice of proposed rulemaking. 62 FR 3338 (Jan. 22, 1997). The

Department intends this notice to supplement the original notice,

however, and not to replace it. To the extent that previously proposed

regulatory changes have not been altered by the revisions contained in

this notice, the explanation of those changes contained in the

Department's initial notice remains valid. Where the Department has

proposed additional changes, those changes are explained below.

Summary of Noteworthy Proposed Regulations

Evidentiary Development

Documentary Medical Evidence

The Department's initial proposal governing evidentiary development

in black lung claims resulted in the greatest volume of public comment,

from coal mine operators, their insurers, claims servicing

organizations and miners. Many commenters were critical of the

Department's proposal that all documentary medical evidence was to be

submitted to the district director in the absence of extraordinary

circumstances. Numerous commenters, expressing widely varying points of

view, also addressed the proposed limitation on the amount of

documentary medical evidence that each side could submit in a given

claim.

After carefully considering the many valid objections to the

required submission of documentary medical evidence to the district

director, the Department now proposes to retain the current process for

submitting documentary medical evidence into the record. Under this

process, parties may submit documentary medical evidence either to the

district director or to an administrative law judge (ALJ) up to 20 days

before an ALJ hearing, or even thereafter, if good cause is shown. This

proposal does retain, however, the Department's original limitation on

the amount of documentary medical evidence which may be submitted in

each claim. To clarify its intent, the Department has defined

differently the applicable evidentiary limitations. These limitations

are now expressed in terms of the types of evidence most commonly used

to establish or refute entitlement to benefits under Secs. 718.202 and

718.204. Thus, rather than describing the evidentiary limitations in

terms of two pulmonary evaluations or consultative reports, the revised

Sec. 725.414 speaks in terms of two chest X-ray interpretations, the

results of two pulmonary function tests, two arterial blood gas

studies, and two medical reports.

The revised Sec. 725.414 also would make explicit the amount of

evidence which each side may submit in rebuttal of its opponent's case.

A party may submit no more than one physician's interpretation of each

chest X-ray, pulmonary function test, or arterial blood gas study

submitted by its opponent. In addition, the Department proposes to

permit a party to rehabilitate evidence that has been the subject of

rebuttal. For example, where a party submits a physician's

interpretation in rebuttal of a chest X-ray interpretation or objective

test, the party that originally submitted the chest X-ray or test into

evidence may introduce a contrary statement from the physician who

originally interpreted it.

This proposal would alter in one significant way the limitations on

the amount of medical evidence admissible in each claim. In order to

allow for a more careful consideration of the unique facts and

circumstances of each case, and to provide an additional procedural

safeguard, this proposal would permit an administrative law judge to

admit medical evidence into the record in excess of the limits outlined

in Sec. 725.414 upon a showing of good cause. The Department's prior

proposal would have permitted the admission of such evidence only if a

moving party could demonstrate extraordinary circumstances.

Complete Pulmonary Evaluation

The Department also proposes a change in the manner in which it

administers the complete pulmonary evaluation required by the Black

Lung Benefits Act. Under the Department's original proposal, a miner

could be examined either by a physician selected

[[Page 54967]]

by the Department or by a physician of his choosing. If the miner

selected the physician, however, the report of that examination would

have counted as one of the two pulmonary evaluations the miner was

entitled to submit into evidence. The Department now proposes to allow

the miner to choose the physician or facility to perform the complete

pulmonary evaluation from a list of providers maintained by the

Department. The authorized list of physicians and facilities in a given

case would include all those in the state of the miner's residence and

contiguous states. If, however, a miner chose a provider more than one

hundred miles from his residence to administer the 413(b) evaluation,

the designated responsible operator could choose to send the miner a

comparable distance for its examination. The 413(b) examination results

would not count against the miner's quota. Sec. 725.406.

The Department believes that this proposal would benefit all

parties to a claim. It would make possible the best quality respiratory

and pulmonary evaluation and would insure each miner a thorough

examination, performed in compliance with the applicable quality

standards. Such a pulmonary evaluation would therefore give the

Department a sound evidentiary basis upon which to make an initial

finding, a finding which both the claimant and the operator may find

credible. The Department intends to develop more rigorous standards for

physicians and facilities that perform pulmonary evaluations and to

reevaluate the fees it pays physicians to perform and explain the

results of these examinations. The Department has discussed in the

preamble to Sec. 725.406 several possible criteria that the Office

might use in selecting appropriate physicians and facilities, and

invites comment on these and other possible criteria.

Developing medical evidence relevant to the claimant's respiratory

and pulmonary condition, including the objective medical testing

required by the Department's quality standards, may involve costs

beyond the reach of some claimants. Thus, this proposal would require a

district director to inform the claimant that he may have the results

of the Department's initial objective testing sent to his treating

physician for use in the preparation of a medical report that complies

with the Department's quality standards. The district director's notice

would also inform the claimant that, if submitted, a report from his

treating physician would count as one of the two reports he is entitled

to submit under Sec. 725.414, and that he may wish to seek advice, from

a lawyer or other qualified representative, before requesting his

treating physician to supply such a report. In this way, the Department

hopes to assist claimants who may not be able to afford the necessary

objective testing.

Documentary Evidence Pertaining to the Liability of a Potentially

Liable Operator or the Responsible Operator

Although the Department now proposes to allow the submission of new

documentary medical evidence while a case is pending before the Office

of Administrative Law Judges, it has not altered the proposal with

respect to the required submission to the district director of all

documentary evidence relevant to potentially liable operators and the

responsible operator. Proposed Secs. 725.408, 725.414 and 725.456 would

continue to require that such evidence be submitted to the district

director and that an administrative law judge may admit additional

evidence on such issues only if the party seeking to submit the

evidence demonstrates extraordinary circumstances justifying its

admission. The Department has revised proposed Sec. 725.408, however,

in response to operators' comments. That section would now allow an

operator, notified of its potential liability under proposed

Sec. 725.407, 90 days, rather than 60, to submit documentary evidence

challenging the district director's determination that it meets the

requirements in Sec. 725.408(a)(2). In addition, the 90 day period

could be extended for good cause pursuant to Sec. 725.423.

Witnesses

This proposal alters the provisions governing witnesses testimony.

Secs. 725.414, 725.456, 725.457. The revisions would allow a physician

to testify, either at a hearing or pursuant to deposition, if he

authored a ``medical report'' admitted into the record pursuant to

Sec. 725.414. Alternatively, if a party has submitted fewer than the

two medical reports allowed as an affirmative case, a physician who did

not prepare a medical report could testify in lieu of such a report. No

party would be allowed to offer the testimony of more than two

physicians, however, unless the administrative law judge found good

cause to allow evidence in excess of the Sec. 725.414 limitations. The

Department also has proposed altering its original limitation on the

scope of a physician's testimony. If a physician is permitted to

testify, he may testify as to any medical evidence of record, and not

solely with respect to the contents of the report he prepared.

The regulations governing witnesses testimony would continue to

require that the parties notify the district director of any potential

witness whose testimony pertains to the liability of a potentially

liable operator or the responsible operator. Absent such notice, the

testimony of such a witness may not be admitted into a hearing record

absent an administrative law judge's finding of extraordinary

circumstances. Secs. 725.414, 725.457.

Witnesses' Fees

The Department received comments from both miners and coal mine

operators criticizing its initial proposal, which would have assessed

liability for witnesses' fees on the party seeking to cross-examine a

witness if the witness's proponent did not intend to call the witness

to appear at the hearing. In response to these objections, the

Department now proposes to assess the costs of cross-examination of a

witness on the party relying on that witness's affirmative testimony.

This change will make the regulation more consistent with the manner in

which witnesses' fees are paid in general litigation. Under the

proposal, the party whose witness is to be cross-examined may request

the administrative law judge to authorize a less burdensome method of

cross-examination than an actual appearance at a hearing, provided that

the alternative method authorized will produce a full and true

disclosure of the facts.

The only exception to this general rule would be in the case of an

indigent claimant. If a claimant is the proponent of the witness whose

cross-examination is sought, and the claimant demonstrates that he

would be deprived of ordinary and necessary living expenses if required

to pay the witness's fee and mileage necessary to produce the witness

for cross-examination, the administrative law judge may apportion the

costs of the cross-examination between the parties, up to and including

the assessment of the total cost against the party opposing claimant's

entitlement. A claimant shall be considered deprived of funds required

for ordinary and necessary living expenses under the standards set

forth at 20 CFR 404.508. The Black Lung Disability Trust Fund may not

be held liable for such witness's fee in any case in which the district

director has designated a responsible operator, except that the fund

may be assessed the cost associated with the cross-examination of the

physician who performed the miner's complete pulmonary evaluation.

[[Page 54968]]

Subsequent Claims

Subsequent applications for benefits are filed more than one year

after the denial of a previous claim and may be adjudicated only if the

claimant demonstrates that an applicable condition of entitlement has

changed in the interim. In its initial notice of proposed rulemaking,

the Department attempted to clarify the regulation governing subsequent

claims by summarizing and incorporating into the regulation's language

the outcome of considerable appellate litigation. 62 FR 3351-3353 (Jan.

22, 1997). Because the courts of appeals have issued additional

decisions since the Department's initial proposal, the proposal now

merely codifies caselaw that is already applicable to more than 90

percent of the claimants who apply for black lung benefits. The

Department's complete discussion of the numerous comments received in

response to the first notice of proposed rulemaking is found under

Sec. 725.309.

This second proposal contains two changes to Sec. 725.309 as

initially proposed. Both changes affect Sec. 725.309(d)(3). The

Department now proposes elimination of the rebuttable presumption that

the miner's physical condition has changed if the miner proves with new

medical evidence one of the applicable conditions of entitlement.

Commenters responded that the proposal was confusing and would lead to

considerable litigation. The Department agrees that the presumption is

unnecessary and suggests its deletion. Under the new proposal, a

subsequent claim will be denied unless the claimant demonstrates that

one of the applicable conditions of entitlement has changed since the

date upon which the order denying the prior claim became final. Section

725.309(d)(3) of this proposal also clarifies the Department's original

intent with respect to subsequent survivors' claims. In order to avoid

an automatic denial, the applicant in a subsequent survivor's claim

must demonstrate that at least one of the applicable conditions of

entitlement is unrelated to the miner's physical condition at the time

of his death. Thus, if the prior denial was based solely on the

survivor's failure to establish that the miner had pneumoconiosis, that

the miner's pneumoconiosis was caused by coal mine employment, or that

the pneumoconiosis contributed to the miner's death, any subsequent

claim must also be denied, absent waiver by the liable party.

By allowing the filing of a subsequent claim for benefits which

alleges a worsening of the miner's condition, the Department merely

recognizes the progressive nature of pneumoconiosis. The proposed

regulation does not allow the reopening of any prior claim which was

denied more than one year before the filing of the subsequent claim. It

also prohibits any award of benefits for a period of time covered by

that prior denial. Responsible operators have argued to the circuit

courts of appeals that the Department's regulatory scheme allows the

``recycling'' of an old claim in violation of the Supreme Court's

holding that a black lung claimant may not ``seek[] to avoid the bar of

res judicata [finality] on the ground that the decision was wrong.''

Pittston Coal Group v. Sebben, 488 U.S. 105, 123 (1988). The courts

have uniformly rejected this argument, see Lovilia Coal Co. v. Harvey,

109 F.3d 445, 449-450 (8th Cir. 1997), cert. denied, 118 S. Ct. 1385

(1998). Thus, the Department's proposal is fully consistent with the

Supreme Court's holding in Sebben, and gives appropriate finality to

prior denials.

The Department's experience with subsequent claims also

demonstrates the need for such filings. During the period between

January 1, 1982, when the Black Lung Benefits Amendments of 1981 took

effect, and July 16, 1998, 10.56 percent of the subsequent claims filed

by living miners were ultimately awarded as opposed to only 7.47

percent of first-time claims. To prevent a miner who has previously

been denied benefits from filing a subsequent claim would force each

miner to ``guess'' correctly when he has become totally disabled due to

pneumoconiosis arising out of coal mine employment because a premature

and unsuccessful filing would forever bar an award. In addition, the

total number of subsequent claims filed by miners during that same time

period, 30,964, as compared to the total number of claims filed,

approximately 107,000, indicates that the provision is not abused. Of

the total number of claims filed, only approximately 1,400, or 1.3

percent, were from individuals who had been denied benefits three or

more times. Thus, in general, only an individual who believes his

condition has truly worsened files a subsequent claim.

Although the Department's proposal would allow the filing of

subsequent claims, the Department also intends to take steps to better

educate claimants with respect to the requirements for entitlement. The

Department intends to provide better initial pulmonary evaluations and

better reasoned, more detailed explanations of denials of claims. By

providing claimants with a more realistic view of their possible

entitlement, the Department expects that the number of nonmeritorious

applications will be reduced.

Attorneys' Fees

In its first notice of proposed rulemaking, the Department

attempted to clarify an operator's liability for a claimant's

attorney's fees and the dates on which the operator's liability

commenced. The Department also recognized the Trust Fund's liability

for attorneys' fees and made it coextensive with a liable operator's.

In general, the Department used the date of the event which created an

adversarial relationship between the claimant and either the operator

or the fund as the date on which liability for a claimant's attorney's

fees commenced. The Department used this date based on the theory that

it was the creation of an adversarial relationship which required

employment of an attorney. Thus, for example, a successful claimant's

attorney could only collect a fee from an operator or the fund for

necessary work performed after the liable operator first contested the

claimant's eligibility or the fund first denied the claim. See 62 FR

3354, 3399 (Jan. 22, 1997).

Upon further reflection and consideration of the comments received,

however, the Department now proposes to allow successful claimants'

attorneys to collect fees from an operator or the fund for all

necessary work they perform in a case rather than only the work

performed after creation of an adversarial relationship. Although the

creation of an adversarial relationship and the ultimately successful

prosecution of a claim are still necessary to trigger employer or fund

liability for attorneys' fees, the date on which the adversarial

relationship commenced will no longer serve as the starting point of

liability. The Department believes this change may be appropriate in

light of the evidentiary limitations present in the proposal. These

limitations significantly alter the consequences of an early submission

of evidence and make the quality of each piece of evidence submitted

significantly more important. Thus, in an attempt to avoid setting a

trap for the unwary claimant and to encourage early attorney

involvement in these claims, the Department proposes allowing

successful attorneys to collect fees for all of the necessary work they

perform.

Treating Physicians' Opinions

In the preamble accompanying its initial proposal, the Department

noted that its proposal to allow a fact-finder to give controlling

weight to the opinion of

[[Page 54969]]

a treating physician attempted to codify principles embodied in case

law and also drew on a similar regulation adopted by the Social

Security Administration, 20 CFR 404.1527(d)(2). See 62 Fed. Reg. 3338,

3342 (Jan. 22, 1997). The Department's proposal elicited widely

divergent comment from numerous sources. The Department now invites

comment on alternative ways to determine when a treating physician's

opinion may be entitled to controlling weight.

The purpose of this proposal is not to limit a factfinder's

consideration of any properly admitted medical or other relevant

evidence. Rather, this regulation would mandate only that the

factfinder recognize that a treating physician may possess additional

insight into the miner's respiratory or pulmonary condition by virtue

of his extended treatment. The Department has proposed two changes to

Sec. 718.104(d). In the absence of contrary probative evidence, the

adjudication officer would be required to accept the physician's

statement with regard to the nature and duration of the doctor's

treatment relationship with the miner, and the frequency and extent of

that treatment. Sec. 718.104(d)(5). The Department has also added

language to Sec. 718.104(d) to make explicit its intent that a treating

physician's opinion may establish all of the medical elements of

entitlement. Finally, the Department has retained the language in the

original proposal that whether controlling weight is given to the

opinion of a treating physician shall also be based on the credibility

of that opinion in light of its reasoning and documentation, other

relevant evidence and the record as a whole.

Waiver of Overpayments

In its previous notice of proposed rulemaking, the Department

extended the right to seek waiver of recovery of an overpayment to all

claimants, without regard to whether recovery was sought by a

responsible operator or the Black Lung Disability Trust Fund. 62 FR

3366-3367 (Jan. 22, 1997). The Department received numerous comments in

response, many urging adoption of a more generous waiver provision

fashioned after the Longshore and Harbor Workers' Compensation Act.

Many 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.

Medical 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

Management 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

Mining 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

Manufacturers 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

Medicine (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

Mountain 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

Mashaw, 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

Mines 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

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