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fed

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WednesdayJanuary 22, 1997

Part II

Department of LaborEmployment Standards Administration

20 CFR Parts 718, et al.

Regulations Implementing the FederalCoal Mine Health and Safety Act of 1969,as Amended; Proposed Rule


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3338 Federal Register / Vol. 62, No. 14 / Wednesday, January 22, 1997 / Proposed Rules

DEPARTMENT OF LABOR

Employment Standards Administration

20 CFR Parts 718, 722, 725, 726 and727

RIN 1215AA99

Regulations implementing the Federal

Coal Mine Health and Safety Act of1969, as Amended

AGENCY: Employment StandardsAdm inistration, Labor.

ACTION: Proposed rule.

SUMMARY: The Departmen t of Laborproposes to amend the regulationsimp lementing th e Black Lun g BenefitsAct. Most of the affected regulationsgovern the processing and adjud icationof individu al claims filed by former coalminers and their surviving dependents,includ ing the medical criteria used toadjudicate the entitlement of those wh o

file claims and th e criteria used todetermin e wh ich of the miners formeremp loyers will be liable for the p aymentof benefits. In ad dition, the Departmen tprop oses to eliminate outdatedregulations setting forth criteria forapp roving state workers compen sationprograms; to discontinue the annualpu blication, in the Code of FederalRegulations, of the interim criteriagoverning claims filed p rior to April 1,1980; and to revise the criteriagoverning the respon sibility of coalmin e operators to secure the payment ofbenefits to their employees.

DATES: Comments m ust be submitted onor before March 24, 1997.

ADDRESSES: All comments concerningthese proposed regulations should beaddressed to James L. DeMarce,Director, Division of Coal MineWorkers Compensation, Room C3520,Frances Perkins Buildin g, 200Constitution Ave., N.W., Washington,DC 20210.

FOR FURTHER INFORMATION CONTACT:James L. DeMarce, (202) 2196 692.

SUPPLEMENTARY INFORMATION: Th eDepartment last amended theregulations implemen ting the BlackLun g Benefits Act, 30 U.S.C. 901 et seq.,in 1983, more than thirteen years ago.Since then , litigation before the variousU.S. courts of app eals and th e BenefitsReview Board has resulted in th eclarification of many substantive areas.Moreover, th e Office of WorkersCompensation Programs experience inadministering the program during thisperiod h as resulted in a variety ofsuggestions for chan ge with th e goal ofhelpin g to improve services, streamlinethe adjudication process and simplify

the regulations language. Thus, th eDepartment p roposes num erous changesin order to streamline, update andclarify these program regulations.

Summary of Noteworthy ProposedChanges

Evidentiary Developm ent

The proposed regulations contain alimitation on the amou nt ofdocumentary medical evidence partiesmay subm it. The designated respon siblecoal mine op erator or the Director,wh ichever party is liable, and theclaimant are limited in their affirmativepresentations to two completepulmonary evaluations or consultativereports a piece. Docum entary rebuttalevidence is limited to one interpretiveopin ion with resp ect to each part of thepu lmonary evaluation submitted by apartys opponent. See proposed 725.414.

The Department proposes these

chan ges in order to ensure thateligibility determinations are based onthe best quality evidence submittedrather than on th e quantity of evidencesubm itted by each side. Currently, inestablishing their eligibility to ben efits,claimants mu st confront the vastlysup erior economic resources of theiradversaries: coal mine op erators andtheir insu rance carriers. Often, theseparties generate medical evidence insuch volume th at it overwhelms theevidence supp orting entitlement thatclaimants can procure. The proposedchan ges limiting evidentiary

development attempt to make moreequitable the adjud ication of black lungclaims and redu ce the costs associatedwith th ese cases.

The prop osed regulation alsofundamentally restructures the claimsadjud ication process by focusingevidentiary developm ent at the districtdirector level. The regulation requiresall parties to develop their docum entarymedical evidence and submit it to thedistrict director for consideration. Oncea claim is referred for a hearing beforethe Office of Administrative Law Judges,additional documentary medicalevidence will be admitted into therecord only on a showing ofextraordinary circum stances or if theclaimant has n ot been p rovided with anadequate complete pulmonaryevaluation by d octors of theDepartments ch oosing. Theadministrative law judge who conductsthe hearin g may permit the parties toelicit testimony only from a limitedgroup of witnesses, includ ing anyph ysician wh ose report was submittedto the d istrict director. The jud ge willbase his decision on a de novo review

of the eviden tiary record d eveloped bythe district director and th e hearingtestimony. See proposed 725.414,725.456 and 725.457.

This proposed procedure d eparts fromcurrent p ractice by excluding theadmission of most additionaldocumentary evidence while a claim ispen din g before an admin istrative law

jud ge. Parties presently often reserve theactive development of medical evidenceun til a claim is referred for hearing.Permitting additional evidentiarydevelopm ent before the adm inistrativelaw judge was logical when significantdelays occurred between the districtdirectors decision and the hearingbefore the ad ministrative law judge.Such d elays no longer occur in astatistically significant percentage ofclaims. Consequen tly, the practical needfor permitting evidentiary developmentat the hearing stage has disapp eared.

The Department believes that theseproposed procedural changes requiringevidentiary developm ent before thedistrict director will encourage promp tand complete evidentiary developmentat the earliest stages and will th ereforeallow the Departmen t to cond uct athorough and meaningful initialadjudication of each claim. TheDepartment believes that th e fair,efficient and exp editious adjud ication ofclaims is a d esirable objective whichcan be promoted by limiting the amountof med ical evidence developed andencouraging all parties to participateactively at the ear liest stages of theprocess.

Iden tification of Resp onsible Op erators

The p roposed regulations p rovide th ata district director may nam e one ormore poten tially liable op erators fromamong a m iners former employers. Thepotentially liable operator that mostrecently employed the claimant willgenerally be the responsible op eratorliable for the p ayment of benefits. Theprop osed regulations afford th e districtdirector con siderable flexibility,how ever, in notifying potentially liableoperators; they may be notified seriatimafter the d istrict director evaluates the

response from the m iners most recentemp loyer or does not receive anyresponse. If a potentially liable operatorcontests its identification, it mu stsubmit docum entary evidencesup porting its position to the districtdirector. In cases involvin g difficultresponsible op erator identificationissues, the district director may retainmore than on e potentially liableoperator as a party to th e case. Seeproposed 725.407 and 725.408.

The d istrict director will choose aresponsible operator from among the


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3339Federal Register / Vol. 62, No. 14 / Wednesday, January 22, 1997 / Proposed Rules

identified p otentially liable operatorsand will notify the parties of thisdetermin ation in his initial find ings.The designated respon sible operatormu st respond to th e notice of initialfindin gs within 30 d ays and mustspecifically ind icate wheth er it agrees ordisagrees with the initial finding ofliability. See proposed 725.410,

725.412. In th e event furtheradjudication of the claim is required,the d istrict director may retain as partiesto the case other p otentially liableoperators in order to preserve theDepartments right to compel th epaym ent of benefits by the respon sibleoperator ultimately determined to beliable for the claimants benefits. Seeproposed 725.413.

To ensure that the claiman t is notoverwhelmed by operator-developedmed ical evidence, however, theprop osed regulations limit allpotentially liable operators and th e

designated respon sible operator to atotal of two pu lmon ary evaluations orconsu ltative reports as an affirmativecase. Because all of the named operatorshave an iden tical interest with respectto the claimants eligibility, theDepartment does not believe thatun fairness will result from limiting thetotal eviden ce submitted. Thedesignated responsible operator willhave the responsibility and, indeed, theobligation, to develop th e operatorscase in chief on beh alf of all namedoperators. Any named op erator, otherthan the responsible operator, mustrequest the district directors perm ission

in order to sched ule the claimant for amed ical examination. This permissionmay be granted only upon a showingthat the responsible operator has notund ertaken a full development of theevidence. In no event will the claimantbe required to u ndergo more than twopulmonary examinations by the partiesopp osing his eligibility. See proposed 725.414.

The proposed responsible operatorregulations also assign both the Office ofWorkers Compensation Programs(OWCP) and the d esignated resp onsibleoperator burden s of proof. Und er

proposed 725.495, the Departmentbears the burd en of proof to identify theresponsible operator initially foun dliable for the payment of benefits. Inorder to carry this burden of proof,OWCP must establish th at theresponsible operator is a potentiallyliable op erator, i.e., that it w as anoperator after Jun e 30, 1973, that itemp loyed the min er for at least oneyear, that at least one day of thatemp loyment occurred after December31, 1969, and th at the miner wasexposed to coal mine d ust wh ile

workin g for the operator. In add ition, inany case in which th e designatedrespon sible operator is not the min ersmost recent employer, the record mustinclud e a statement that OWCP hasinvestigated its files and has d eterminedthat it has no record that a more recentemployer insured its liability under theAct, or was auth orized to self-insure

such liability.Once OWCP has met its burden of

proof, the burden shifts to thedesignated respon sible operator. Theoperator may avoid liability for theclaim on ly if it establishes: (1) that it isnot financially capable of assum ingliability for the claim; or (2) that one ofthe min ers more recent employersmeets all of the criteria for a potentiallyliable operator. The burden im posed onthe designated respon sible operatorun der this second alternative includes ashow ing that the more recent employeris financially capable of assum ing

liability. See proposed 725.495.If the d esignated responsible op eratorcarries its burd en of proof andestablishes th at it was in correctlyidentified and OWCP has failed to nameand retain as a party the coal mineoperator ultimately found liable as theresponsible operator, the Trust Fun dwill bear liability for the claim. In sucha case, OWCP will make no attempt toname a n ew responsible operator andforce the claiman t once again toestablish h is entitlement to ben efits. Seeprop osed 725.407(d) allowing thedistrict director to identify and n otify aresponsible op erator only before a case

is referred to th e Office ofAdm inistrative Law Jud ges.

Civil Mone y Penalty

The proposed regulations contain newprovisions imp lementing the Acts civilmoney p enalty provision, which directsthe assessment of a penalty of up to$1,000 per d ay against op erators that failto secure the p ayment of benefits, eitherby purchasing commercial insurance orqualifyin g as a self-insu rer. 30 U.S.C.933(d). The p roposed regulationsestablish criteria and streamlinedprocedu res to be used in assessing

pen alties. They p rovide notice of theDepartments intention to min imize thefinancial burden th at uninsu redoperators currently place on thoseoperators in comp liance with th e Actssecurity requirements and on the BlackLung Disability Trust Fun d. Seeprop osed 20 CFR part 726, subp art D, 726.300726.320.

The proposed regulations provide agraduated series of possible penaltiesbased on a set of criteria, includin g theoperators size, its prior notice of theActs insurance requiremen ts and the

operators action, or in action, followingthis n otification. See proposed 726.302. After receipt of a notice ofpen alty assessment and entry of a timelynotice of contest, an operator mayrequest a h earing before the Office ofAdm inistrative Law Jud ges. Seeproposed 726.307. The ensuingdecision w ill address whether the

operator h as violated the Actsinsurance requirements, whether th eind ividuals id entified by the Director aspotentially severally liable for thepen alty were in fact the presiden t,treasurer or secretary of the corporationduring the relevant time period and,finally, the app ropriateness of thepenalty assessment. See proposed 726.313. The Director or any p artyaggrieved by a decision of th eadm inistrative law jud ge may petitionthe Secretary for review, which will beconducted using a substantial evidencestandard. See proposed 726.314,

726.318.The proposed regulations also imposean add itional requirement on self-insured operators. They require thatsuch operators continue to secure thepaymen t of benefits to their employeeseven after the operator has ceasedminin g coal. This add itionalrequiremen t is necessary given thelimited amou nt of security typicallyrequired of operators wh o self-insureand th e prolonged time periods aftercoal mine employm ent has ceaseddu ring which m iners may file claims forbenefits. See prop osed 726.114(c).

Treating Physicians Opinion sThe Department prop oses a new

paragraph (d) of 20 CFR 718.104, theregulation governin g reports of physicalexaminations. The proposed paragraphwou ld give certain treating ph ysiciansopin ions controlling weight indetermin ing wheth er the miner is totallydisabled or died d ue topneu moconiosis. The proposedlanguage would m andate that, whenweighing a treating ph ysicians opin ion,the factfind er must consider the natu reand duration of the relationshipbetween the min er and the ph ysician,

the frequency and exten t of theph ysicians treatment, and th ecredibility of the d octors opin ion inlight of his reasonin g anddocu men tation. The factfind er must alsoconsider the opin ions consistency withthe other relevant evidence, and th edoctors training and specialization.

Waiver of Overpaym ents

The Department p roposes amending 725.547(a), wh ich addresses theapp licability of overpaymen t provisionsto coal min e operators and their


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insu rance carriers. The proposedregulation would make available to alloverpaid claimants the provisionsgoverning waiver of recovery of anoverpayment incorporated from theSocial Secu rity Act, 30 U.S.C. 923(b),940, incorporating 42 U.S.C. 404(b).

Currently, only a claimant wh oreceives an overpaymen t from the Black

Lung Disability Trust Fun d m ay berelieved of his repaymen t obligation.Such a claimant is entitled to waiver ofrecovery of the overp ayment if he candem onstrate that permitting recoverywou ld defeat the p urp ose of the Actor be against equ ity and goodconscience. Only th ose individ ualswh o were n ot at fault in creati ng theoverpaymen t are eligible for waiver. TheDepartment has concluded that thesewaiver provisions shou ld be available toall claimants, includ ing those who areoverpaid by operators and insurancecarriers. Thus, under the proposed

language, any individu al who hasreceived an overpayment will have theopp ortun ity to establish that the two-part test for waiver is met.

Establishing Total Disability and TotalDisability Due to Pneu m oconiosis

Proposed 718.204 amends thedefin ition of total d isability andmakes explicit th e Departmentsposition w ith regard to establishing totaldisability due to pneu moconiosis. Bothof these chan ges reflect the d ecisions ofnu merous cou rts of app eals. In order tobe foun d totally d isabled , a min ermust h ave a respiratory or p ulmonary

impairment wh ich, standin g alone,prevents him from performing his usualcoal mine employment. See proposed 718.204(b). In order to establishentitlement, the miner mu st alsodem onstrate that his total disability isdue to pn eumoconiosis. This showing ismad e by establishing thatpneumoconiosis is a substantiallycontributin g cause of the totallydisabling respiratory or pulmonaryimp airment. See prop osed 718.204(c).Finally, proposed 718.204(a) alsomakes clear that a concurrent d isabilitydu e to a non respiratory or

nonp ulmonary condition will notdisqu alify the min er from receipt ofblack lung benefits if the m iner can alsodem onstrate total disability due topneumoconiosis.

Additional or Subsequent Claims

The p roposed regulations clarifyclaiman ts right to file add ition al orsub sequ ent claims, th ose claim s filedmore than one year after den ial of aprevious claim. See proposed 725.309(d). Und er this prop osal, theclaimant may escape automatic denial

of an add itional claim on the ground s ofthe prior den ial, by demon strating thata change in one of the applicablecond itions of entitlement has occurredsince the date upon w hich the orderden ying the prior claim became final.The ch anged regulatory languagecodifies the hold ings of several courts ofappeals.

The applicable conditions ofentitlement are limited to thoseconditions upon w hich the prior denialwas based. If the app licable cond itionsof entitlement relate to the min ersph ysical condition and the newevidence submitted w ith the add itionalclaim establishes a change in at leastone applicable condition, the proposedregulation contains a rebuttablepresumption that the m iners ph ysicalcond ition has changed. Once a changein an applicable condition ofentitlement is established, none of thefindings made in connection w ith the

prior claim, except those based on apartys failure to contest an issue, shallbe bindin g in the adjud ication of thesubsequent claim, and the claim m ustbe adjudicated on the merits.

Medical Benefits

Proposed 725.701(e) provides that inany claim for compen sation fortreatment of a pu lmon ary disorder filedby a miner en titled to medical benefits,there shall be a rebuttable presu mp tionthat the treatment was for a disordercaused or aggravated bypn eumoconiosis. This amendedregulatory language codifies a d ecision

of the United States Court of App eals forthe Fourth Circuit. The presumptionmay be rebutted only by evidence thatthe specific pulmonary disorder beingtreated is neither related to, noraggravated by, the minerspn eumoconiosis. The proposedregulation also provides that evidencethat the miner does not h avepn eumocon iosis or is not totallydisabled by pneumoconiosis arising outof coal min e employm ent, i.e., evidencewh ich challenges the minersunderlying entitlement to medicalbenefits, is insufficient to d emonstrate

that the sp ecific treatment for whichcompensation is claimed is notcompensable. See prop osed 725.701(f).

Exp lanation of Proposed Chan ges

The Department prop oses to revisethe regulations imp lementin g the BlackLung Benefits Act, set forth at ChapterVI of Title 20 of the Cod e of FederalRegulations. In order to make all theprop osed chan ges more easilyunderstandable, the Departmentprop oses to re-prom ulgate Parts 718,722, 725, and 726 in their en tirety. This

action is intended to aid the readers ofth e Federa l Register , and should n ot beconstrued as inviting comments on anyregulation which h as not beensubstantively revised. The regulationswithin these parts may be divided intothree categories: (1) those wh ich w ill besubstantively revised; (2) those to w hichthe Department is proposing only

technical chan ges; and (3) those wh ichwill not be revised at all.

Su bstantive revisions

The following regulations are beingsubstantively revised: 718.3, 718.101, 718.102, 718.103, 718.104, 718.105, 718.106, 718.107, 718.201, 718.202, 718.204, 718.205, 718.301, 718.307, 718.401, 718.402, 718.403, 718.404, App end ix B to part 718,App end ix C to Part 718, part 722(entire), 725.1, 725.2, 725.4, 725.101, 725.103, 725.202, 725.203, 725.204, 725.209, 725.212, 725.213, 725.214, 725.215, 725.219, 725.221, 725.222, 725.223, 725.306, 725.309, 725.310, 725.311, 725.362, 725.367, 725.405, 725.406, 725.407, 725.408, 725.409, 725.410, 725.411, 725.412, 725.413, 725.414, 725.415, 725.416, 725.417, 725.418, 725.421, 725.423, 725.452, 725.454, 725.456, 725.457, 725.458, 725.459, 725.478, 725.479, 725.490, 725.491, 725.492, 725.493, 725.494, 725.495, 725.502,

725.503, 725.522, 725.530, 725.537, 725.547, 725.606, 725.608, 725.609, 725.620, 725.621, 725.701, 725.706, 726.2, 726.8, 726.101, 726.104, 726.105, 726.106, 726.109, 726.110, 726.111, 726.114, 726.300, 726.301, 726.302, 726.303, 726.304, 726.305, 726.306, 726.307, 726.308, 726.309, 726.310, 726.311, 726.312, 726.313, 726.314, 726.315, 726.316, 726.317, 726.318, 726.319, 726.320, and part 727(entire). The substantive revisions to

these regulations are explained infurther detail below.

Techn ical revisions

In addition , a number of regulationshave been revised to m ake certaintechnical changes. The prop osedregulations substitute the term districtdirec tor for the term dep utycommissioner wh erever it app ears.This chan ge is explained in d etail at 55FR 2860428607, July 12, 1990. Theprop osed regulations also add a cross-reference to 725.4(d) to each regulation


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which currently contains a cross-reference to part 727. Section 725.4(d)explains that although the Departmentis discontinu ing publication of theinterim criteria set forth in 20 CFR Part727 in th e Code of Federal Regulations,part 727 remains ap plicable to all claimsfiled p rior to April 1, 1980. In add ition,certain proposed regulations have been

revised and/ or renumbered in order toconform with the current requirementsof the Office of the Fed eral Register. Thetext of 725.453A has beenincorporated into 725.454 asparagraphs (a), (b) and (c) and 725.454has been retitled. The text of 725.459Ahas been incorporated into 725.455 asparagraph (d). Section 725.503A hasbeen renumbered as 725.504, and 725.504.506 have been renumbered 725.505.507. Section 725.701A hasbeen renumbered 725.702, and 725.702.707 have been renumbered 725.703.708. Finally, the proposed

regulations correct min or typographicalerrors, revise cross references tosubp arts of part 725 wh ich have beenredesignated and regulations that havebeen renumbered, and conform theregulations to the current p ractices ofthe Office of the Feder al Register. TheDepartment has included technicalchanges to the following regulations: 718.1, 718.2, 718.4, 718.303, 725.102, 725.216, 725.217, 725.301, 725.302, 725.350, 725.351, 725.360, 725.366, 725.401, 725.402, 725.403, 725.404, 725.419, 725.420, 725.450, 725.451, 725.453A,

725.455, 725.459A, 725.462, 725.463, 725.465, 725.466, 725.480, 725.496, 725.501, 725.503A, 725.504, 725.505, 725.506, 725.507, 725.510, 725.513, 725.514, 725.521, 725.532, 725.533, 725.543, 725.603, 725.604, 725.605, 725.607, 725.701A, 725.702, 725.703, 725.704, 725.705, 725.707, 725.708, 725.711, 726.4,and 726.203. Pursuant to the authorityset forth in 5 U.S.C. 552(b)(3)(A), wh ichallow s federal agencies to alter rules o fagency organization, procedu re, or

practice withou t notice and comm ent,the Department is not acceptingcommen ts on any of these regulations.

Unchanged Regulations

Certain regulations are m erely beingrepromulgated without alteration andare also not open for public commen t.To the extent approp riate, theDepartments previous exp lanations ofthese regulations, set forth in theFedera l Register , see 43 FR 3677236831, Au g. 18, 1978; 48 FR 2427224294, May 31, 1983, remain ap plicable.

The same is tru e of those regulations towhich the Department is making onlytechnical chan ges. The followingregulations are being repromu lgated forthe conven ience of readers: 718.203, 718.206, 718.302, 718.304, 718.305, 718.306, Append ix A toPart 718, 725.3, 725.201, 725.205, 725.206, 725.207, 725.208,

725.210, 725.211, 725.218, 725.220, 725.224, 725.225, 725.226, 725.227, 725.228, 725.229, 725.230, 725.231, 725.232, 725.233, 725.303, 725.304, 725.305, 725.307, 725.308, 725.352, 725.361, 725.363, 725.364, 725.365, 725.422, 725.453, 725.460, 725.461, 725.464, 725.475, 725.476, 725.477, 725.481, 725.482, 725.483, 725.497, 725.511, 725.512, 725.515, 725.520, 725.531, 725.534, 725.535, 725.536, 725.538,

725.539, 725.540, 725.541, 725.542, 725.544, 725.545, 725.546, 725.601, 725.602, 725.710, 726.1, 726.3, 726.5, 726.6, 726.7, 726.102, 726.103, 726.107, 726.108, 726.112, 726.113, 726.115, 726.201, 726.202, 726.204, 726.205, 726.206, 726.207, 726.208, 726.209, 726.210, 726.211, 726.212, and 726.213.

For purposes of this preamble, he,his, and him shall include she,hers, and her.

20 CFR Par t 718Stand ar ds for

Determin ing Coal Miners TotalDisability or Death Due toPneumoconiosis

Subpart AGeneral

20 CFR 718.3. We are specificallyseeking comm ent on 718.3. Paragraph(c) of 718.3 was used to sup port thetrue d oubt rule, which provid es thatan eviden tiary issue will be resolved infavor of the claimant if the p robativeevidence for and against the claimant isin equip oise. The United StatesSup reme Court invalidated th e truedoubt rule in Director, OWCP v.Greenw ich Collieries, 114 S.Ct. 2251(1994). The Court conclud ed th atparagraph (c) failed to define the truedou bt rule effectively. It then held thatthe ru le, as app lied by the BenefitsReview Board, contravenes th eAdm inistrative Procedure Act, 5 U.S.C.551 et seq., by relieving the claiman t ofthe APA-imp osed burd en of proving hisclaim by a prep ond erance of theevidence. Paragraph (c) also appeared toconflict with 718.403, wh ich requiresthe p arty alleging any fact to bear theburd en of provin g that fact. Section

718.403 more accu rately reflects theallocation of burden s of proof un der theAPA, and p aragraph (c) of 718.3shou ld therefore be deleted.

Su bpart BCriteria for the Developm entof Medical Evidence

20 CFR 718.101. The curren t text of 718.101 should be redesignated as

paragraph (a), withou t furtheramendmen t, and a new paragraph (b)should be add ed. The Department hasconsistently maintained the positionthat th e quality stand ards add ressingthe adm inistration of certain clinicaltests and examinations app ly to allevidence developed by any party inconn ection with a claim for black lungbenefits filed after March 31, 1980. TheBenefits Review Board has rejected th isposition, and h eld that the standardsgovern only the evidence developed bythe Departmen t; for all other p arties, thestandard s are advisory. The Board hasalso held that evidence cannot berejected by th e adjud icator solely fornoncompliance with the relevantstandard. See generally Gorzalka v. Big

Horn Coal Co., 16 Black Lun g Rep. (MB)148, 151 (1990) and au thorities cited.Only the Third Circuit has addressedthis issue, and has agreed with th eDepartments p osition.Director, OW CPv. Mangifest, 826 F.2d 1318 (3d Cir.1987). Althou gh the existing regulationsprovid e ample authority for making thequality standard s generally applicable(see paragraph s 718.3(a), 725.406(b),725.456(c)), 718.101 should beamended to leave no doubt on this

point.The Department has also consistently

maintained that the part 718 qualitystandard s apply to part 727 claims if thetest was condu cted after March 31,1980. See 20 CFR 727.203(c). The Six thCircuit h as accepted this interp retationof the regulations. Wiley v.Consolida tion Coal Co., 915 F.2d 1076,1080 (6th Cir. 1990). Both the Board an dthe Seventh Circuit, however, haverejected th e Departments position.Coleman v. Ram ey Coal Co., 18 BlackLung Rep . (MB) 19, 115 (1993 );Peabody Coal Co. v. Director, OW CP

[Brinkley], 972 F.2d 880, 882 (7th Cir.1992). Accordingly, the prop osedparagraph (b) includ es a reference topart 727 claims to clarify theapp licability of the qu ality stand ards tosuch claims.

The individu al quality standardsaddress the compliance requirement invarious ways. See 20 CFR 718.102 (x-ray) and 718.103 (pulm onary functionstudy): substantial comp liance; 718.104(medical report) and 718.105 (blood gasstudy): no reference; 718.106 (autop sy/biopsy): compliance. In ord er to clarify


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the criterion for complian ce and p lace itin logical sequence in the regulations,language should be add ed to 718.101requiring substantial compliance withall the standard s. This regulationapp lies generally to all the qualitystandard s, making it the rationalprovision to contain the compliancerequiremen t. A single reference in on e

regulation also eliminates repetitivelanguage from th ree other regulationswh ile making explicit the app licabilityof the stand ard to the remainin g tworegulations. Finally, the ph rase[e]xcept as otherwise providedrecognizes the exem ption fromcomp liance for a deceased min er whoseonly X-ray is noncon forming, andautopsies or biopsies of min ers whodied before March 31, 1980.

The purpose of the quality standardsis to ensu re the u tilization of reliableevidence in ad judicating claims. Theeffect of non comp liance in terms of

provin g or refuting entitlement sh ouldtherefore be obvious. In ord er toemp hasize the insu fficiency of suchevidence as proof, however, proposedparagraph (b) contains an affirmativeprohibition.

20 CFR 718.102. Paragraph (e) shou ldbe reorganized in view of the prop osedparagraph 718.101(b) generalcompliance standard. As noted w ithrespect to proposed paragraph718.101(b), codifying the substantialcomp liance standard in th at regulationof general app licability eliminates theneed to reiterate it in each specificquality standard. The proposed

paragraph (e) also makes 718.102consistent with 718.103 (pulmonaryfunction studies) in p resumingcomp liance with the technical criteriain the Append ix. Finally, thepar enth etical citation to 718.208 inthe curren t regulation is a typographicalerror; no su ch provision exists.Reference to 718.202 is ther eforesubstituted as a correction inasmu ch asthat regulation contains definitions ofBoard-eligible and -certified radiologistsand B readers. See 20 CFR718 .202(a)(1)(ii) (C)(E).

20 CFR 718.103. The last two

sentences of paragraph (a) shou ld beremoved, and th e content of thosesentences add ed to p aragraph (c) to takeinto accoun t the chan ges to 718.101.The explanation provided foreliminating the substantialcompliance language in 718.102app lies with equ al force to 718.103.Furthermore, the proposed paragraphs718.102(e) and 718.103(c) operate in afunctionally equivalent mann er: bothregulations (i) presume comp liance withtechnical requirements contained in th eapp end ices; (ii) permit rebuttal of that

presu mp tion w ith contrary eviden ce;and (iii) recognize an exception tocomp liance for claims involvingdeceased m iners and limited evidence.Given the iden tity of pu rpose in thecurrent regulations, proposed paragraph718.103(c) mirrors proposed paragraph718.102(c) to ensu re similarinterpretation and operation.

20 CFR 718.104. Section 718.104should be amended to m ake clear thatthe enu merated data represents theminimu m information and testing uponwh ich a ph ysicians report can be basedif obtained in con nection with a claimfor benefits. This regulation also is th elogical provision to implemen tguidelines for the w eighing of medicalreports from a miners treatingphysician. Proposed paragraph (d)describes the relevant factors theadjudicator must consider indetermining whether to accordcon trollin g weight to th e treatin g

physicians opinion. The primaryobjective in ch anging the format of718.104 is to clarify the requiremen tthat any ph ysicians report developed inconn ection with a claim must be basedon certain enu merated information anddata in ord er to establish or refuteentitlement. Furthermore, the proposedregulation makes clear the necessity forutilizing at least an x-ray and apulmonary function test which satisfythe qu ality stand ards as a clinical basisfor a ph ysicians pulm onary diagnosis.See Director, OWCP v. Siwiec, 894 F.2d635, 639 (3d Cir. 1990) (hold ing thatph ysicians report which w as based on

nonconforming pulmon ary functionstud y was insufficient to prove minerwas d isabled). Finally, proposedparagraph (c) parallels similarprovisions in 718.102, 718.103 and718.106, wh ich perm it the utilization ofnon conforming evidence to establishentitlement if the miner is deceased andcomp lying evidence is unavailable. Thisprovision add s the requirement that thephysician must be unavailable;otherwise, in at least some instances,the ph ysician could be requested toadd ress, and cure, the deficiencies inhis report.

With respect to p aragraph (d), judicialpreceden t has long recognized thatspecial weight may be given the opin ionof a miners treating ph ysician, based onthe doctors opp ortunity to observe themin er over a period of time. See, e.g.,Thorn v. Itmann Coal Co., 3 F.3d 713,717 n . 3 (4th Cir. 1993); Tussey v. IslandCreek Coal Co., 982 F.2d 1036, 1042(6th Cir. 1993);McClendon v.

Drum m ond Coal Co., 861 F.2d 1512,1514 (11th Cir. 1988);Micheli v.

Director, OWCP, 846 F.2d 632, 636 (10thCir. 1988); Schaafv. Matthews, 574 F.2d

157, 160 (3d Cir. 1978). Such deference,how ever, is not an u nqu alified blanketrule wh ich mu st be appliedmechan ically; the adjud icator must stilldetermine whether the physiciansopinion is reasoned, documented andcredible before accepting it overcontrary opinions. Grizzle v. Pickands

Mather and Co., 994 F.2d 1093, 1097

(4th Cir. 1993); Peabody Coal Co. v.Helms, 901 F.2d 571, 573 (7th Cir.1990);Halsey v. Richardson, 441 F.2d1230, 1236 (6th Cir. 1971); Tedesco v.

Director, OWCP, 18 Black Lung Rep.(MB) 1104, 11 05 (1994). Theprop osed chan ges to 718.104 codifythe principles embodied in both lines ofcases and d raw on a similar regulationadop ted by the Social SecurityAdministration, 20 CFR 404.1527(d)(2).

A ph ysicians status as the m inerstreating ph ysician can provide alegitimate basis for preferring thatopin ion over the reports of doctors wh o

have examined the miner only once orreviewed only med ical records and testdata. Such status alone, however, is nosubstitute for a critical analysis of boththe nature and extent of the patient-doctor relationship and the credibilityof the opinion submitted by thephysician. The proposed regulationenu merates the four basic factors inevaluating the ph ysicians relationshipwith th e miner: (i) nature of relationship(pulmonary versus non-pulmonarytreatment); (ii) duration of relationsh ip(length of time treating the miner); (iii)frequency of treatment (num ber of visitsover time); and (iv) extent of treatment

(types of tests and examin ationscond ucted). Each factor will vary fromclaim to claim. Consequently, nobright-line rule can be utilized whichdefines wh en a treating physiciansopinion should be given controllingweight.

Paragraph (d)(5) und erscores therequiremen t that, status aside, thetreating physician must provide areasoned and documented opin ionbefore his conclu sions can be accordedcontrolling weight. Status cann ot curedeficiencies in testing and explanationwh ich wou ld be fatal flaws in reports

from a non-treating ph ysician.Accordingly, this provision requ ires theadjudicator to consider the treatingphysicians opinion on its own meritsand in the context of the remainder ofthe record to determine whetherdeference to the treating physician isappropriate.

20 CFR 718.105. Section 718.105should be amend ed to address studiesadministered during the minersterminal illness. Durin g such an illn ess,arterial blood gas stud ies may produ cequalifying results for reasons un related


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to a chron ic respiratory or pulm onarydisease. In ord er to avoid reliance ondeathbed qualifying data, proposedparagraph (d) should be added. Thisprovision simply ensures the probativevalue of such tests as evidence of achronic respiratory or p ulmonaryimp airment by requiring the claimant tosubm it a ph ysicians report attesting to

the link between the qualifying scoresand th e miners chronic pulmon arycondition.

20 CFR 718.106. Paragraph (b) shou ldbe rewritten to account for the chan gesto 718.101. Paragraph (b) is revised toutilize language similar to p arallelprovisions in the other quality standardsprovisions, which account for thegeneral substantial compliancestandard contained in the amended 718.101. The word non complyin g issubstituted for nonconforming toensu re consistent terminology in similarcircumstances.

20 CFR 718.107. Section 718.107should be amend ed to make explicit theburd en of proof a party bears todem onstrate that the proffered test orprocedure is medically acceptable.Section 718.107 enables any p arty tosubm it medical evidence based on testsor procedu res not covered by the otherprovisions of subp art B. This regulationperm its flexibility in accommod atingthe use of developing or futu re medicaldiagnostic techniques beyond thetraditional tests sp ecifically covered bythe quality standards. Proposedparagraph (b) emp hasizes therequiremen t that the party proffering the

evidence mu st establish both that theevidence is based on medicallyacceptable tests or procedures and thatthe evidence is relevant to determinin gthe med ical issues in a ben efits claim.

Su bpart CDeterm ining Entitlem ent toBenefits

20 CFR 718.201. We are specificallyseeking commen t on 718.201. Theregulatory definition ofpn eum oconiosis should be revised toclarify the Departments position thatthis d isease is a progressive conditionwh ich, in some instances, may becomedetectable only after cessation of coalmine employment. The definitionshou ld also reflect the inclusive natureof the disease, such th at no category ofchron ic lung disease can becategorically exclud ed from th e ambit ofthe definition. Two important issueshave em erged in recen t litigationinvolving the definition ofpneumoconiosis: (i) whether thedisease includes obstructive disorders;and (ii) whether pneumoconiosis is alatent disease which can p rogress afterthe cessation of du st exposure to the

poin t of clinical manifestation.Heretofore, the Department hasconsistently taken the position inlitigation and ru lemaking that nospecific lun g disease could becategorically exclud ed from th edefinition of pneumoconiosis; thus,any d isease which could be medicallylinked to occupational dust exposure in

a particular case could bepneumoconiosis. See 43 FR 36825, Aug.18, 1978, 727.202Discussion an dchanges (a); 45 FR 1368 5, Feb. 29, 1980 , 718.201Discussion and chan ges (a);

Barberv. Director, OW CP, 43 F.3d 899(4th Cir. 1995). The Department has alsoargued that pn eumoconiosis canprogress absent exacerbating du stexposure, and may require many yearsto reach the point of detection. TheDepartment h as been largely successfulin litigation in volving these issues. Theprevalence of the issues and th eavailability of supp ortive medical

research, however, warrant makingexplicit the curren t regulatory definitionto codify both p ositions.

Scope of Definition

The statutory definition ofpn eum oconiosis, as implem ented by 718.201, encompasses any chronicrespiratory or pulmon ary disease orimpairment caused by the inhalation ofcoal mine dust. See 30 U.S.C. 902(b).Thus, any such d isease or impairmentwhich can be linked to occupationaldust exposure by credible medicalevidence may be consideredpn eum oconiosis for p urp oses of that

particular claim. As such, the Actrecognizes a far broader con cept of thedisease than does the med icalcommu nity; the latter confines coalworkers pneu moconiosis to thepathologic reaction of lung tissue todu st inhalation, resulting incharacteristic patterns or m arkings onchest X-rays. See, e.g., The MerckManual of Diagnosis and Therapy 681(15th ed . 1987); Nation al Institu te forOccupational Safety and Health,Occupational Exposu re to RespirableCoal Mine Dust 4.1.2 (1995); FreemanUnited Coal Mine Co. v. Director,

OWCP, 957 F.2d 302 , 303 (7th Cir.1992). Amend ing 718.201 toacknowled ge the distinction betweenthe med ical and legal definitionsemphasizes the inclusive nature ofpn eum oconiosis for p urp oses of theblack lung ben efits program.

In the same vein, add ing the phraseany chron ic restrictive or obstructivepu lmonary disease will forecloselitigation attemptin g to narrow thedefinition on a claim-by-claim basiswith medical opinions which excludeobstructive lung disorders from

occupation ally-related path ologies. TheNIOSH study on occupational dustexposure contains ample m edicalauthority su ggesting at least somerelationship between coal mine dustexposure and the development ofchron ic obstructive lun g disease. SeeNational Institute for OccupationalSafety and Health, Occup ational

Exposure to Respirable Coal Mine Dust 4.2.2 et seq. Thu s, leaving the issue toresolution in litigation risks inconsistentresults; ind eed, one court has invitedsuch inconsistencies:

The Act and its regulations definepneu moconiosis broadly and do n otestablish that dust exposure from coal minework can necessarily cause obstructivepulmonary d isease or impairment. * * *Rather, the facts and med ical opinions ineach specific case answer this question.

Blakley v. Am ax Coal Co. , 54 F.3d 1313,1321 (7th Cir. 1995); com pare Warth v.Sou thern Ohio Coal Co., 60 F.3d 173,

175 (4th Cir. 1995) (stating that[c]hron ic obstructive lu ng d isease thu sis encompassed within th e definition ofpneu moconiosis for purp oses ofentitlem ent to Black Lun g benefits[,]and rejecting medical opinions based onerroneous assumptions to thecontrary);Eagle v. Armco, Inc., 943 F.2d509, 511 n . 2 (4th Cir. 1991) (describingas bizarre a medical opinion whichrejected occupational du st exposure aspossible cause of chronic obstru ctivelun g disease).

Progressive Natur e

The Department has long maintained

the view that simple pn eumoconiosis isan irreversible disease, which m aycause p rogressive deterioration of thelun g even after the min er has ceasedinh aling coal mine du st. Many courtand Board decisions reflect acceptanceof this ch aracterization of th e d iseasespathology. See , e.g.,Mullins Coal Co. v.

Director, OWCP, 484 U.S. 135, 151(1987);LaBelle Processing Co. v.Swarrow , 72 F.3d 308, 314315 (3d Cir.1995);Adkins v. Director, OW CP, 958F.2d 49, 51 (4th Cir. 1992);Lukman v.

Director, OWCP, 896 F.2d 1248, 1253(10th Cir. 1990); Orange v. Island Creek

Coal Co., 786 F.2d 724 , 727 (6th Cir.1986); Consolidation Coal Co. v. Chubb,741 F.2d 9 68, 973 (7th Cir. 1984);Elkinsv. Beth-Elkh orn Coal Co., 2 Black Lun gRep. (MB) 1683, 1686 (1979).But see

Zeigler Coal Co. v. Lemon , 23 F.3d 1235,1238 (7th Cir. 1994) (chastisin g anadm inistrative law judge for assumin gthat pn eum oconiosis is progressivewithout any m edical evidence in therecord to sup port the assumption).Indeed, the p ropen sity for progressivedeterioration provid es the legal

justification for permitting ad ditional or


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subsequen t claims, even for miners wh odo n ot return to coal mining after thefirst claims denial. See 43 FR 36785,Aug. 18, 1978, 725.309Discussion an dchan ges (a) (The Departm ent agreesthat a miner wh ose claim h as once beenfinal ly denied * * * should be al lowedto file a new claim on the ground s of apro gression to total d isability.). The

fact that the min er was un able to proveeven the existence of the disease in hisinitial claim is n o bar to a later claimsince the disease may not haveprogressed to the poin t of clinicalmanifestation when he filed theapplication.

Current medical science supports theDepartments position th atpn eum oconiosis may progress. In P.Francois et al., Pneu moconiosis ofDelayed Apparition: Large ScaledScreening in a Pop ulation of RetiredCoal Miners of the Northern Coal Fieldsof France, in Seventh International

Pneu moconiosis Conference, Abstractsof Comm un ications 979 (1988), 741 newcases of pneum oconiosis (out of 3070min ers, or 24% ) were discovered inminers who did not havepneu moconiosis at retirement and wh ohad n ot been exposed to du st for at least3 years. Of these 741 n ew cases, only10% had large opacities (comp licatedpneumoconiosis), 69% had category 1simple pneumoconiosis, and 21% hadcategory 2 simp le pneu moconiosis.Indeed, th e auth ors specifically reciteone examp le of a 66 year old ex-minerwh o had retired 24 years earlier after 25

years of dust exposu re. The x-ray atretirement showed no evidence ofpneu moconiosis, but the one taken 20years later showed obviouspneu moconiosis. Thus, the authorswrite:

The coalworkers pn eumoconiosis mayappear a lon g time after the exposure tonocive [harmful] dust h as ceased. This is awell established fact. What we d ont know isthe frequency of such forms ofpneu moconiosis of long delayed apparition.

Francois at p. 979.An earlier study from France provides

add itional sup port. In David V. Bates etal ., A Longitudinal Study ofPulmon ary Function in Coal Miners inLorraine, Fran ce, 8 Am. J. Ind . Med. 21(1985), the authors observed continu edand accelerated rates of decline in lu ngfunction after retirement from m inin g inboth smokers and n onsmokers. Theauthors su ggest that pneum oconiosis atall stages progresses, based on dustloading in the lu ng, and once this hasreached some critical level, it is n otmu ch affected by removal fromexposure. Bates at p. 29. The studyincludes several graphs depicting

radiologic category at retirement and10 years later. Bates at p . 27. Th esegraphs dem onstrate a decrease in thepercentage of miners w ith norm al or0/1 readings, and an increase in thepercentage of miners with sim plepn eumocon iosis (category 1/2) as wellas complicated pneumoconiosis. By wayof explanation, Dr. Bates identified

miners with normal or 0/1 readings aso-p; min ers w ith 1/2 were m, n , A,B, and miners with complicatedpn eumoconiosis were d elineated asC. Bates at p. 2 2. An x-ray sh owi ngopacity perfusion of 0/1 is considerednegative for pn eumoconiosis un der theregulations. 20 CFR 718.102(b). Thus,the d ata clearly dep icts a progressionfrom n ormal, or n egative, x-rays topositive x-rays, with the initialappearance of simple pn eumoconiosisoccurring some 10 years after themin ers last dust exposu re.

Other stud ies and treatises

inferentially docu men t, or otherwisesup port, the progressivity of simplepneumoconiosis. See , Helen Dimich-Ward & David V. Bates, Reanalysis ofa Longitudin al Study of Pulmon aryFun ction in Coal Miners in Lorraine,Fran ce, 25 Am . J. Ind. Med . 613, 621(1994) (lung function loss an d d isabilitymay progress after exposu re ceases);Cockcroft et al., Prevalen ce an dRelation to Underground Exposure ofRadiological Irregular Opacities inSouth Wales Coal Workers withPn eum ocon iosis, Br. J. Ind . Med. 40:169, 172 (1983) (increase in irregular

opacities without further du st exposureind icates continu ed tissue reaction toinhaled d ust and progression of thedisease after exposure, althoughincrease in overall profusion ofopacities not found); 4A Roscoe N. Gray,Attorn eys Textbook Of Med icine,

205.71 (3d ed. 1982) (while onlymethod of preventin g progression ofpn eumoconiosis is removal from d ustyenvironment, with somepneumoconioses progression willcontinu e even after exposure ceases);The Mer ck Manu al of Diagnosis an dTherapy 704 (16th ed. 1992)(explaining that complicatedpn eumoconiosis may develop andprogress without further dust exposure);David V. Bates, Respiratory Fun ctionin Disease 303 (3d ed . 1989) (silicosiscommon ly progresses after dustexposu re ceases). The definition ofpneumoconiosis includes silicosis. 20CFR 718.202. Moreover, complicatedpn eumoconiosis normally develops on abackgroun d of category 2 or 3 simplepneumoconiosis. See e.g. The MerckManu al of Diagnosis and Therapy at p.704. Thus, the development from simple

to complicated p neum oconiosis withoutfurther du st exposure revealsprogression of the disease.

In view of the am ple scientificsup port for the Departmentsinterpretation of the scope and n ature ofthe definition of pn eum oconiosis, 718.201 shou ld reflect thatinterpretation with more specificity.

20 CFR 718.202. Paragraph (a)(2)should be amend ed to make clear thata find ing of anthracotic pigment in abiopsy procedure, without more, isinsufficient to establish th e presence ofpneumoconiosis. The current regulationimposes this limitation only withrespect to an autopsy, but there is noreason to treat these two types ofevidence differently.

20 CFR 718.204. The proposedchanges to 718.204 codify several ofthe positions which the Department hastaken in litigation to clarify the m eaningof total d isability. The r egulationshou ld exp licitly reflect theDepartm ents view th at totaldisability means a totally disablingrespiratory or pu lmonary impairment.The prop osed changes also provideguidance for establishing the degree towhich p neumoconiosis must contributeto the min ers disabling impairmen t; todate, the qu antification of disabilitycontribution h as been articulated solelythrough appellate decisions. In addition,the prop osed chan ges make clear that aminer w ho is totally disabled by acompensable respiratory condition isentitled to black lu ng benefits regardlessof any concu rrent disability by non -

respiratory impairmen ts or diseases.Finally, the Departmen t proposes torevise the regulation to separatedisability and d isability causationcriteria, unify the various p rovisionsdealing with lay evidence, and deleteparagraph (f), which is un necessary inview of correspondin g material in 20CFR 725.504.

Two significant ch anges have beenmade to the concept of totaldisab ility. First, paragrap h (a) makesclear that disabling nonrespiratorycond itions are irrelevant to determin ingwh ether a miner is, or was, totallydisabled by pn eumoconiosis. Thischange m akes clear the Departmentsdisagreement with the hold ing inPeabody Coal Co. v. Vigna, 22 F.3d 1388(7th Cir. 1994). In that case, the m inersuffered a d isabling stroke in 1971, andthereafter app lied for benefits un derpart 727. He invoked the in terimpresumption with qualifying pulmonaryfunction eviden ce from 1979. TheSeventh Circuit held, how ever, that theoperator rebutted the presumptionbecause the m iners disability wascaused by the stroke, wh ich was


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unrelated to coal mine du st exposureand occu rred before the qualifyingventilatory study. CompareY oughiogheny an d Oh io Coal Co. v.

McAngues, 996 F.2d 130 (6th Cir. 1993),cert. den . 114 S. Ct. 683 (1994) (holdingthat m iners disabling injuries fromautomobile accident w ere irrelevant todetermining whether he was totally

disabled by pneumoconiosis). AlthoughVigna was decided un der part 727, theproposed changes to paragraph718.204(a) are designed to ensu re thatthe Seventh Circuits view w ill not beapp lied outside th at circuit to casesarising under p art 718.

The prop osed paragraph (a) doesrecognize one exception to theirrelevancy of disabling nonrespiratoryconditions in determining whether themin er is totally disabled bypneu moconiosis. Such conditions ordiseases are relevant if they prod uce achronic respiratory or p ulmonary

impairment. Some cardiac andneu rological diseases, for examp le, mayaffect the respiratory mu sculature insuch a w ay as to imp air the individ ualsability to breathe withou t actuallyaffecting the lungs. See, e.g., Panco v.

Jedd o-Highland Coal Co., 5 Black Lun gRep. 137 (1982) (concernin grespiratory impairmen t fromamyotroph ic lateral sclerosis, aneu rological d isease);Maynardv.Central Coal Co., 2 Black Lun g Rep. 1985 (1980) (concerning respiratoryimp airment from heart disease);Skursha v. U.S. S teel Corp., 2 BlackLun g Rep. 151 8 (1980) (same).

Similarly, a traumatic accident su ch asan injury to the spinal column m ayaffect breathing but n ot the lun gs. Theeffect of the disease or trauma, itsrelationship to the m iners ability tobreathe, and the interplay with theminers pneumoconiosis, all determinethe con tributing causes of the min ersdisability.

The second ch ange involves thedefin ition of total d isability. Theprop osed chan ge to paragraph (b)(1)expresses what the Department hasalways m aintained : that the disabilitywh ich the m iner suffers is a totally

disabling respiratory or pulmonaryimp airment, and not wh ole persondisability. Although th e two courts ofapp eals to consider the issue haveaccepted the Departmen ts position,clarifying the definition w ill hopefullyend litigation on this issue. See Beattyv. Dan ri Corp. & Triangle Enterprises,49 F.3d 99 3 (3d Cir. 1995);JewellSm okeless Coal Corp. v. Street, 42 F.3d241 (4th Cir. 1994).

Anoth er significant change is theaddition of criteria defining disabilitycausation, or the d egree to w hich

pneum oconiosis must contribute to theminers disability. Several courts haveaddressed the issue, and formulatedvarious standards:Robinson v. Pickands

Mather & Co./Leslie Coal Co., 914 F.2d35, 38 (4th Cir. 1990) (cont ribu tingcause); Shelton v. Director, OWCP, 899F.2d 690, 693 (7th Cir. 1990) (necessarythou gh not su fficient cause);Lollarv.

Alabama By-Products, 893 F.2d 1258,1265 (11th Cir. 1990) (sub stantia lcontr ibut ing factor);Adams v. Director,OWCP, 886 F.2d 818, 825 (6th Cir. 1989)(disability du e at least in part topneumoconiosis);Bonessa v. UnitedStates Steel Corp., 884 F.2d 726, 733 (3dCir. 1989) (sub stantial contr ibut or);

Mangus v. Director, OWCP, 882 F.2d1527, 1531 (10th Cir. 1989) (at least acon tribu ting cau se). Few, if an y,practical differences exist in th e variousexpressions of the contributionstandard.

The Department has conclud ed that a

single standard shou ld be articulated toeliminate needless confusion andlitigation over the relationsh ip betw eena miners pn eumoconiosis and h isdisability. The Department h as selectedthe substantially contributing causelanguage because it ensures a tangibleand actual contribution ; a moredemandin g standard w ould be tooharsh, especially wh en m any minerssuffer from a m ultiplicity of respiratoryproblems. Moreover, the substantiallycontributing cause standard mirrorsthe criteria for provin g thatpneum oconiosis contributed to the

miners death. See 20 CFR 718 .205(c).The U.S. Court of App eals for the Th irdCircuit found the contribution standardfor death a p ersuasive basis forinterpreting th e d isability stand ard: Weperceive no reason wh y the ph rase totaldisability d ue to pn eumoconiosisshould n ot track the phrase death du eto pn eumocon iosis.Bonessa, 884 F.2dat 733.

Proposed paragraph (c)(1) also definesdisability causation in terms ofworsenin g a totally disabling respiratoryor pulmon ary condition which is itselfwholly caused by n on-coal mineexposures. Thus, a miner w hosepneumoconiosis further damages hislun gs may establish the n ecessary causallink even if nonoccupational exposureis a self-sufficient cau se of therespiratory disability. The p roposedlanguage reflects the Departmentsdisagreement with the result reached bythe U.S. Court of App eals for the Fou rthCircuit in Dehu e Coal Co. v. Ballard, 65F.3d 1189 (4th Cir. 1995) (hold ing thata miner wh o was totally disabled bylun g cancer was n ot entitled to benefitsbecause his p neumoconiosis could not,

by definition, contribute to thedisability).

The remainin g chan ges are structuralor editorial. Paragraph (c)(5) has beenchanged to paragraph (d) (i) and (ii); theremaining provisions addressing the useof lay evidence have been moved intoparagraph (d) given th e common ality oftheir pu rpose: establishing entitlemen t

throu gh lay eviden ce. The last sentenceof current paragraph (c)(5) makes clearthat provin g disability through clinicaltests or physicians reports does n otnecessarily prove that pneumoconiosiscaused th e disability. This provisiontherefore und erscores the differencebetween d isability and d isabilitycausation as separate elements ofentitlement. This p oint is su fficientlyimportant to warrant placement in aseparate paragraph as prop osedparagraph (c)(2). Finally, cu rrentparagraph (f) is deleted because itsimply d up licates 20 CFR 725.504 to the

extent that both provisions preclud e aworking m iner from receiving benefitsunless the award is based on a findingof complicated pneumoconiosis.

20 CFR 718.205. The Department hastaken the position that p neumoconiosiscauses the min ers death if the diseaseis either the actual cause of death orhastens death to an app reciable extent.This in terpretation of the p hrase deathdu e to pn eum oconiosis shou ld bemad e explicit in the regulation. Und erthe 1981 amen dm ents to the BLBA, adeceased min ers survivor wh o filed aclaim on or after January 1, 1982, iseligible for benefits only if

pneumoconiosis caused, or contributedto, the miners death. The Departmen tadd ed paragraph (c) to 718.205 toimplement congressional intent thatpneu moconiosis must p lay a role in theminers death in ord er to entitle asurvivor to benefits. Based on thelegislative history of th e 1981amendmen ts, the Department concludedthat the d isease must be at least asubstantially contributing cause of theminers death. See 48 FR 2427624277,May 31, 1983, 718.205Discussion an dchanges (h)(n). In ord er to givepractical meaning to that phrase, the

Department has consistently argued inlitigation that the m edical evidencemu st at least prove that th e minerspneu moconiosis actually h astened hisdeath. Four courts of appeals havedeferred to th e agencys interp retation ofthe regulation.Brown v. Rock Creek

Mining Co., 996 F.2d 812, 816 (6th Cir.1993); Peabody Coal Co. v. Director,OWCP, 972 F.2d 178, 183 (7th Cir.1992); Shuf f v. Cedar Creek Coal Co.,967 F.2d 9 77, 980 (4th Cir. 1992), cert.den. 113 S.Ct. 969 (1993);Lukosevicz v.

Director, O WCP, 888 F.3d 1001, 1006


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(3d Cir. 1989). The Ben efits ReviewBoard has refused to ad opt theDepartments position, but h as notarticulated an alternative standard . See,e.g., Tackettv. Armco, Inc., 16 BlackLun g Rep. (MB) 188, 193 (1992),vacated on rem and17 Black Lung Rep.(MB) 1103, 11 04 (1993). In ord er toensu re consistent app lication of a single

legal stand ard, paragraph (c) of 718.205 should be amended by addingprop osed p aragraph (c)(5), wh ichcodifies the Departmen ts views.

Subpart DPresumptions Applicable toEligibility Determin ations

20 CFR 718.301. Paragraph (b) shou ldbe removed because a new d efinition ofyear is ad ded to 20 CFR 725.101(a).Paragraph (a) of 718.301 should beamend ed to make reference to proposed 725.101(a)(32) and its requiremen ts.Section 718.301 is one of tworegulations which currently defineyear for determ inin g the len gth of amin ers occupation al history; the otherregulation is 20 CFR 725.493(b)(identifying responsible op erator). TheDepartment has conclud ed that a singleregulatory definition with p rogram-wideapplication should replace the twocurrent regulations. Determinin g thelength of a miners occupational h istoryis the same inqu iry for establishingeligibility for presu mp tions as foridentifying a responsible operator, and asingle standard should ap ply in bothcases.

20 CFR 718.307. Remove 20 CFR718.307 (a) and (b) and add the conten ts

of 718.307(a) to 20 CFR 725.103.Paragraph (a) contains m aterial whichconcerns any claim filed und er theBLBA, and not just claims governed bythe p art 718 medical criteria.Accordingly, the contents of paragraph(a) will be removed from part 718 an dplaced in 725.103. See proposed 725.103. Paragraph (b) effectivelydup licates new p roposed 725.103,which more broadly describes theburd en of proof. This language shouldtherefore be removed.

Su bpart EMiscellaneous Provisions

20 CFR 718.401. Remove 718.401because it du plicates proposed 725.406. Current 718.401 recognizeseach m iners statutory right to acomplete pulmonary evaluation at theDepartments expen se. See 30 U .S.C.923(b). This regulation also auth orizesboth the min er and the district directorto develop additional medical evidence.Section 718.401 du plicates material inthe cross-referenced regulations, 20 CFR 725.405 and 725.406; the part 725regulations have program-wideapp licability. Consequen tly, no need

exists for includ ing this regulation inpart 718.

20 CFR 718.402. Remove the firstsentence of 718.402 and add theremaind er of this provision to proposed 725.414(a)(3)(iii). Section 718.402describes the consequ ences of aclaimants failure to cooperate in thedevelopment of medical evidenceneed ed to adjudicate the claim. Thisprovision duplicates the substance ofprop osed 725.414(a)(3)(iii), wh ichdeals with a claimants unreasonablerefusal to submit to medicalexaminations an d testing. Section718.402 also penalizes the claimant wh orefuses to provide a comp lete healthhistory or perm it access to medicalrecords. This asp ect of the regulationwill be add ed to proposed 725.414.Given the overlapp ing purp oses of thetwo regulations, 718.402 should beremoved from p art 718 in favor ofproposed 725.414, which has program-wide applicability.

20 CFR 718.403. Remove 20 CFR718.403 from p art 718 and add to part725. Section 718.403 codifies theburden of proof imposed on any partyalleging any fact in sup port of itsposition u nd er part 718. The parties toa claim, however, are required to provea variety of facts un der p art 725 whichalso bear on entitlement issues, e.g.,status as a miner ( 725.202);depend ency and relationship( 725.2047 25.228); liability as arespon sible operator (subpart G); andentitlement to m edical benefits (subp artJ). Part 725 d oes not contain acoun terpart to 718.403. Accordingly, asingle provision generally allocating theparties burd ens of proof under th eBLBA logically should be placed in part725, the regulations with program-wideapplicability. See proposed 725.103.

20 CFR 718.404. Remove 20 CFR718.404 from p art 718 and move to part725. Section 718.404(a) makes explicit amin ers obligation to inform th eDepartment and the responsibleoperator, if any, if he resu mes w ork ina coal mine or comparable and gainfulwork. A return to such work requiresthe termination of benefits unless themin ers award is based on com plicatedpneumoconiosis. See 20 CFR 725 .504(c).Paragraph (b) reiterates theDepartments authority to reopen afinally approved claim during thelifetime of the miner and developmedical eviden ce if the particularcircumstances so w arrant. Bothprovisions are m ore logically placed inpart 725 as regulations of program-wideapplicability. See proposed 725.203 (c)and (d).

Append ix B to Part 718

Appendix B to Part 718, 2(ii). Th etechnical requiremen ts for theadministration of pulmonary functionstudies should be amended to precludetaking the initial inspiration from theopen air. The quality stand ardscurrently permit an ind ividualperforming a pulmon ary function studyto take the initial inspiration from eitherthe open air or the testing machine. Theproposed regulation eliminates thischoice. Open air inspiration is notrecorded on the spirogram, whichdocu men ts the performance of the test.Consequently, the validity of such aninitial inspiration cannot beindependently verified by a reviewingph ysician. Because less than op timuminspiration will p rodu ce a false lowresult, such tests may yield erroneouslyabnormal values. The open -airinspiration op tion therefore mu st beeliminated in ord er to ensu re that the

validity of every pulm onary functionstudy can be independ ently ascertained.

The Department does not prop ose tochange Tables B1B6 in Appen dix B,wh ich are used to evaluate the results ofpu lmonary function tests (see proposed 718.204(b)(2)(i)). Accord ingly, thetables will not be repu blished in eith erthe prop osed or final versions of thisrule in the Federa l Register . The tableswill continu e to be pu blished as part ofApp end ix B to part 718 in the Code ofFederal Regulations on ce this rulebecomes final, how ever. Partiesinterested in reviewin g the tables may

consult earlier editions of the Code ofFederal Regulations or the FederalRegister in wh ich the tables wereoriginally p romu lgated, 45 FR 1369913710, Feb. 29, 1980.

App end ix C to Part 718. Appendix Cshould be amend ed to specify thatarterial blood gas stud ies should n ot becond ucted d urin g, or shortly after, aminers acute respiratory illness. Suchstudies are likely to produce spu riousvalues wh ich are not ind icative of theminers true cond ition.

20 CFR Part 722Criteria forDetermin ing Whether Sta te Work ers

Compensation Laws Provide AdequateCoverage for Pneum oconiosis andListing of Appr oved State Laws

Section 421 of the Black LungBenefits Act requires th e Secretary ofLabor to publish in the Federa l Registera list of all states wh ose workerscompen sation laws provide adequ atecoverage for occup ation alpn eum oconiosis. 30 U.S.C. 931(a). Thepu rpose of this provision was to allowstates to assume resp onsibility forprovid ing compensation to former coal


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min ers who were totally disabled du e topneu moconiosis and to their dependentsurvivors in th e event of the minersdeath du e to pneumoconiosis. See Useryv. Tu rner Elkhorn Mining Co., 428 U.S.1, 89 (1976). The Secret aryscertification that a state law p rovidesadequate coverage prevents any claimfor benefits arising in that state from

being adjud icated und er the Black Lun gBenefits Act. To date, no state law hasbeen approved.

The Act provid es that a state may beinclud ed on the Secretarys list only ifits provisions governin g benefitamounts, entitlement standards, statuteof limitations, and p rior and su ccessoroperator liability are substantiallyequivalent to those contained in th eAct. 30 U.S.C. 931(b)(2). In add ition, th eSecretary may prom ulgate add itionalregulations to ensu re adequatecomp ensation for total disability ordeath d ue to pneu moconiosis. 30 U.S.C.

931(b)(2)(F). The Secr etary firstpromulgated regulations und er thisauthority on March 12, 1971, andamended those regulations on March 30,1973 in light of changes to theLongshore and Harbor WorkersCompensation Act in 1972. 38 FR 8238,March 30, 1973. These regulations,codified at 20 CFR part 722, have n otbeen amen ded since 1973. In light of thesubsequen t statutory changes made bythe Black Lun g Benefits Reform Act of1977 and the Black Lung BenefitsAmendm ents of 1981, the cu rrentregulations are obsolete.

The Department h as recently

conclud ed a review of all of theregulations implemen ting the Act, andhas determined that the continuedpu blication of these criteria in th e Codeof Federal Regulations is no longerrequired. Accordingly, rather thanamend the regulations to reflect thecurrent law, the Departmen t intends tosimply d elete the specific criteria andreplace them with a general statementthat in the future, upon app lication ofany state, the Department w ill reviewthe states workers compen sation law inlight of the curren t Act to determinewhether the state law provides adequate

coverage. Guided by the criteria set forthin 30 U.S.C. 931(b)(2), the Departm entwill app rove such a state law only if itguarantees at least the samecompensation, to the same individuals,as is provided by the Act. The Actrequires that if the Department app rovesany state laws, it pu blish a list of theaffected states in the Federa l Register ,30 U.S.C. 931(b)(1).

Finally, the revised regulationssubstitute the gender n eutral termwor kers compen sation la ws for theterm workm ens compen sation law s,

used in the statute. No substantivealteration in the statutory term isintended.

20 CFR Part 725Claims for BenefitsUnder Par t C of Title IV of the FederalMine Safety and Health Act, asAmended

Subpart AGeneral

20 CFR 725.1. Section 725.1 providesa broad overview of the various parts ofthe Black Lun g Benefits Act (BLBA), theamendm ents thereto, and theincorporation of the Longshore andHarbor Workers Comp ensation Act(LHWCA). The Department p roposes toamend this regulation to include acomp arable reference to th e SocialSecu rity Act, 42 U.S.C. 301 et seq.,provisions of which are alsoincorporated into Parts A, B and C of theBLBA. The BLBA is actu ally th reestatutes in on e. The Act itself issubch apter IV of the Mine Safety and

Health Act, chapter 30 of the Un itedStates Code. Part C of the Act, wh ich th eDepartment adm inisters, alsoincorporates man y provisions of theLHWCA, 33 U.S.C. 901 et seq. Congressauth orized the Departmen t to vary theterms of the incorp orated LHWCAprovisions by regulation, and th eDepartment has done so wh en thespecial requirements of the black lun gbenefits program d ictated the variance.Congress also incorporated parts of theSocial Security Act into Parts A and Bof the BLBA. Congress on ce againauthorized the Department to adopt an d

mod ify the Part B provisions to theextent app ropriate for use in th eadm inistration of Part C. Accordin gly,725.1 should be amended to includ e abrief description of the Social SecurityAct incorporation comp arable to thepresent d iscussion of the LHWCAincorporation.

20 CFR 725.2. For an explanation ofthe ch anges to paragraph (b), see theexplanation of the changes to 725.4.Paragraph (c) should be add ed toexplain th e applicability of theseregulatory revisions to pen din g claimsand to claims filed after the effectivedate of the revised regulations. TheDepartment intends that the p roposedrevisions annou nced in this Notice willapp ly to the adjudication of all claimsfor benefits und er the Black LungBenefits Act pen din g with theDepartment on th e date these revisionsgo into effect, to the extent th at suchapplication is consistent with theDepartments authority u nd er the BlackLung Benefits Act and with the efficientadm inistration of the p rogram. TheDepartment consid ers a claim to bepen din g if the claim has n ot yet been

finally denied, or less than on e year haspassed sin ce the claim was finallyden ied. In addition, all of the prop osedregulations will app ly to any claim filedafter the regulations become final.

The Supreme Court has held that astatutory grant of legislative rulemakin gauthority to an agency d oes not conferthe pow er to issue retroactive rules

un less Congress expressly provides suchpower.Bowen v. Georgetown Un iversity

Hospital, 488 U.S. 204, 208 (1988). TheBlack Lung Benefits Act does n otcontain such an express grant.Accordingly, the Departments ability toissue rules of retroactive application iscircumscribed.

Determinin g whether a rule is one ofretroactive app lication, however, isoften d ifficult. In Landgrafv. USI FilmProducts, 114 S. Ct. 1483 (1994), theCourt adopted th e definition set forth byJustice Sto ry in Society for Propagationof the Gospel v. Wheeler, 22 F.Cas. 756(No. 13,156) (CCDNH 1814):

[E]very statute, which takes away orimpairs vested rights acquired under existinglaw, or creates a new obligation, imposes anew d uty, or attaches a new disability, inrespect to transactions or considerationsalready past, must be deemed retrospective.* * *

114 S. Ct. at 1499. The Court observed,however, that [a] statute does notoperate retrospectively merely becauseit is applied in a case arising fromcond uct anted ating the statutesenactmen t, or up sets expectations basedin p rior law.Ibid. (citation omitted).

One examp le of an attemp t to regulate

retroactively was the Departmen t ofHealth and Hu man Services regulationat issue in Georgetown University

Hospital. In 1983, th e U.S. District Courtfor the District of Columbia hadinvalidated a 1981 HHS regulationgoverning hospital reimbursemen t forfailure to provide n otice and anopp ortun ity to commen t. In 1984, HHSreissued th e regulation following noticeand comm ent, and attempted to make itretroactive to 1981. The Sup reme Courtinvalidated th e second regulation as anunau thorized attempt to p romulgate aretroactive regulation. At the oth er end

of the spectrum are proced ural changes.As the Sup reme Court noted inLandgraf, [c]han ges in p rocedural rulesmay often be applied in su its arisingbefore their enactment w ithout raisingconc erns ab out retr oactivity. 114 S. Ct.at 1502.

For pu rposes of retroactivity, therevisions to the Departmentsregulations implemen ting the BlackLung Benefits Act, 30 U.S.C. 901 et seq.,may be divided into two groups. Thefirst, consisting of revisions to p art 726,have no effect on th e adjudication of


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claims filed un der the Act. Thoserevisions, which establish proceduresfor enforcing the general obligation ofcoal mine op erators to secure thepaym ent of benefits und er the Act, willbe made effective immediately up onpu blication of the final rule, and willgovern all subsequen t penaltyassessments.

The Department also proposes torevise various provision s in part 726that address the requirements imposedon coal mine operators who seek theDepartments auth ority to self-insuretheir liability. These revisions merelyclarify the Departments existinginterpretation of the Act. Accordingly,these regulations may apply to theevaluation of past condu ct. In Pope v.Shalala, 998 F.2d 473, 483 (7th Cir.1993), the court held that [a] rulesimply clarifying an u nsettled orconfus ing area of the law * * * doesnot chan ge the law, but restates what

the law accordin g to the agency is andhas alw ays been: It is no m oreretroactive in its operation th an is a

jud icial determin ation construin g andapp lying a statute to the case.

Manhattan General Equip. Co. v.Commissioner, 297 U.S. 129, 135(1936).

The second , and largest, group ofrevisions are those amend ing Parts 718and 725, wh ich govern the adjudicationof claims for benefits filed by min ersand th eir survivors, as well as thepaym ent of benefits in approved claims.A nu mber of the revisions alter the

procedures to be used in adjudication,includ ing those related to processing ofclaims by the d istrict director, theadjudication of claims before the Officeof Admin istrative Law Jud ges,responsible operator issues, andsubsequen t claims. These changes,how ever, significantly alter the p artiesobligations and expectations, forexample, by limiting eviden ce, creatingpresumptions, and establishing burd ensof proof. Accordingly, despite theDepartments authority underGeorgetown University Hospital an d

Landgrafto issue procedural rules thattake effect immed iately, the Departmentprop oses to app ly the revised versionsof the regulations governin g those topicsonly to claims filed after the effectivedate of the amen dm ents. Because theremainin g revisions m erely clarify theDepartments interp retation of thecurrent Act and regulations, theDepartment intend s to app ly them to allclaims p ending with the Department,and to the paym ent of all benefits thatbecome du e and payable, or that remainun paid, after the effective date of theserevisions.

20 CFR 725.4(d). In 1978, Congressrequired the Department of Labor toprom ulgate interim en titlement criteriathat w ere no m ore restrictive thancriteria used to adjudicate claims thathad been filed w ith the Social SecurityAdm inistration un der Part B of theBlack Lung Benefits Act. These interimcriteria were to be used un til the

Department could d evelop p ermanentcriteria. The in terim part 727regulations were publish ed at 43 FR36818, Aug. 18, 1978. Because theDepartments perman ent part 718criteria took effect on April 1, 1980, see20 CFR 718.2, the p art 727 regulationsapp ly only to claims filed before thatdate. The Department estimates thatseveral hu nd red part 727 claims remainpen din g in various stages ofadjud ication. Because the p arties tothese claims are quite familiar with th estandard s for establishing eligibilityun der part 727, and n o new claims will

be adjudicated u nder these standards,the Department intend s to discontinuethe annu al publication of part 727 in th eCode of Federal Regulations. Thosestandard s will remain in effect for allclaims to which th ey apply. Partiesinterested in reviewing part 727 mayconsu lt earlier editions of the Code ofFederal Regulations or th e FederalRegister in w hich the regulations w ereoriginally published.

20 CFR 725.101. The terms defined by 725.101(a)(4) et seq. have been p ut inalph abetical order to assist the read er infinding the app ropriate definitions. Theexplanation s below refer to the

renumbered paragraphs.20 CFR 7 25.101(a)(6). Benefits. Th e

regulation sh ould be amend ed to makeclear that the initial pulmon aryevaluation obtained by the Departmen tpu rsuant to 30 U.S.C. 923(b) isconsidered a benefit paid by the TrustFun d or the operator on the claimantsbehalf. The clinical testing and m edicalexamination requ ired by 413(b) of theBLBA con fer a ben efit on th e m inerto the extent that the Trust Fund paysfor the min ers opp ortun ity tosubstantiate his claim.

20 CFR 725.101(a)(13), Coal

Preparation; (a)(19), Miner or CoalMiner. The regulation should beamend ed to reflect the Departmen tsposition th at coke oven workers are notcovered by th e BLBA. The Departmen thas long taken the position that theprep aration activities un dertaken atcoke ovens are not covered by theBLBA. This position reflects Congressun derstand ing of the scope of coverageintend ed by the statutory definition ofminer. 30 U.S.C. 902(d). See S.Rep.No. 209, 95th Con g., 1st Sess. 21 (May16, 1977) (Nor do es [the d efinition ]

include such individuals not d irectlyrelated to the produ ction of coal such ascoke oven wor kers.); 123 Congression alRecord 24,236 (1977) (Sen. Randolp h:* * * coke oven workers are notinclud ed in the d efinition.). See alsoFox v. Director, OWCP, 889 F.2d 1037(11th Cir. 1989); Sexton v. Matthews,538 F.2d 88 (4th Cir. 1976). This

clarifying language ensures th at thedefin ition s of coal pr epar ation andmin er or coal m iner do n otencomp ass activities involving thecommercial produ ction of coke, wh ichis outside the extraction andtransportation processes.

20 CFR 725.101(a)(16).DistrictDirector. The p roposed change merelyconforms the regulation to currentadministrative practice, and ensuresthat any action taken by, or in the nameof, a district director shall be given fullcredit as the action of a depu tycommissioner.

20 CFR 725.101(a)(17). Division orDCMWC. The prop osed chan ge specifiesthe agency with in the Departmentwh ich contain s the Office of WorkersCompensation Programs and theDivision of Coal Mine WorkersCompensation.

20 CFR 72 5.101(a)(31). Wo rkersCompensation Law. This definitionshould be amend ed to make clear thatcertain benefits paid from a statesgeneral revenu es are not workerscompensation p ayments for pu rposes ofthe BLBA. The BLBA requires theDepartment to offset a claimants federalbenefits by any ben efits received from a

state pursuan t to a workerscompen sation law for disability or deathdu e to pneu moconiosis. 30 U.S.C.932(g). Since the Acts in ception, th eDepartment h as considered p aymentsmad e to disabled min ers by a state fromgeneral revenu es to be exclud ed frombenefits afforded by workerscompen sation laws. Both th e ThirdCircuit an d th e Benefits Review Board,how ever, have rejected th e Departmentsposition. OBrockta v. Eastern

Associated Coal Co., 18 Black Lung Rep.172 (1994), affd sub nom. Director,OWCP v. Eastern A ssociated Coal Co.,

54 F.3d 14 1 (3d Cir. 1995). The Boardheld that 932(g) clearly refers toworkers compensation law withoutregard to the sou rce of fund ing for thepaymen ts. The Third Circuit rejectedthis reasoning but agreed that theDepartments position w as wrong. TheCourt held that 932(g) is ambiguous,but that th e Departmen ts policyimperm issibly implies limitations oncurrent 725.101(a)(4) which areinconsistent with the u nequivocallanguage of the regulation. The Courtsuggested that the Department amen d


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the regulation to codify its policy. Theprop osed regulation makes clear theDepartments longstandin g policy thatpaym ents mad e from a states generalrevenues are n ot workers compen sationbenefits subject to offset un der th e Act.

20 CFR 725.101(a)(32). The BLBAdo es not d efine a year for pu rpo ses ofcomp uting the length of a miners

occupation al history. In 1978 and 1980,the Department prom ulgated regulationswhich adopted the current 125-day rule.20 CFR 725.493(b), 718.301(b). Therationale for this policy decision isexplained in detail in th e commentsaccompan ying the final regulations. 43FR 36804, Aug. 18, 1978, 725.493,

Discussion an d chan ges (b); 45 FR13691, Feb. 29, 1980, 718.301,

Discussion an d chan ges (b). Th eregulations are substantially the same,but not iden tical. The prop osed 725.101(a)(32) consolidates provisionsof the two existing regulations into a

definitional term with program-wideapplication.In add ition, the regulation codifies the

Departments current position w ithrespect to absences, such as vacationand sick leave, that are approved by themin ers employer. In such cases, wh erethe employer/employee relationship isunin terrupted, a m iner is credited w ithhaving worked during the period of theapp roved absence. Other absences, suchas the tim e du ring a strike or layoff, arenot coun ted as working days. Finally,the proposed section permits theadjudication officer to use the Officesmethod ology for comp uting the length

of the miners emp loyment h istory as afallback. See Coal Min e (BLBA)Procedure Manual, ch. 2700 (1994).The Bu reau o f Labor Statistics (BLS) hascompiled the average daily and annu alwages for the coal mine in du stry. Atable of this d ata app ears in the OfficesManu al. If the best available evidenceconsists of ann ual income statements,the amoun t of time the miner workedeach year as a min er may be compu tedby dividing the reported income by theaverage daily in come for that year. Themin er may be credited with a year, ora fractional part of a year, based on th e

ratio of this data. If, how ever, theminers annual income exceeded theaverage income for that year, he may n otbe credited with m ore than a year ofemp loyment for that income year.

20 CFR 725.103. Section 718.403presently codifies the burden of proofimp osed on an y party alleging any factin sup port of its position u nder p art718. The parties to a claim, how ever, arerequired to prove a variety of factsund er part 725 which also bear onentitlement issu es, e.g., status of a min er( 725.202); dep end ency and

relationship ( 725.204725.228);liability as a resp onsible op erator(subpart G); and entitlemen t to medicalbenefits (subpart J). Part 725 d oes n otcontain a counterpart to 718.403.Accordingly, a single provisiongenerally allocating the p arties burd ensof proof under the BLBA logicallyshould be placed in part 725 since those

regulations have program-wid eapplicability.

Su bpart BPersons Entitled to Benefits,Conditions, and Duration of Entitlem ent

20 CFR 725.202. The BLBA containsa broad definition of min er which thecourts have liberally construed . See

Dowdv. Director, OWCP, 846 F.2d 193(3d Cir. 1988). In keepin g with th atliberal construction, this regulationshould be amended to create arebuttable presumption that anyind ividual workin g at a coal mine orcoal preparation facility is a miner. Thepresumption is ground ed in commonsense: the vast majority of personsworkin g at a coal min e will ordinarilyhave du ties related to the miningprocesses of coal extraction an d/ orpreparation. This presump tion can berebutted by evidence that the individualis not actually p erformin g work integralto the extraction or p reparation of coal,or the ind ividuals work involves onlycasual contact with the coal mineoperation. The structure of theregulation should also be chan ged todistinguish sp ecial provisions relatingto transportation and constructionworkers. Of special note is th e fact that

construction workers alone are relievedof the burd en to prove that their workinvolves the extraction or preparation ofcoal; working at a coal min e site inconstruction activities wh ich involvemin e dust exp osure is sufficient to makethem miners. See The Glem Comp any v.

McKinney , 33 F.3d 340 (4th Cir. 1994).20 CFR 725.203. One of the elements

of entitlement required by 725.202 isthat the m iner file a claim. Section725.203(a), as currently w ritten,provid es that all of the 725.202requiremen ts mu st be satisfied for eachmon th of entitlement. These criteriaeffectively mean that the first mon th inwh ich the min er fulfills all therequiremen ts for entitlement will neverbe earlier than the mon th in w hich hefiles an app lication for benefits. Amin er, however, is entitled to benefitsfor all periods of comp ensabledisability, includ ing any period ofdisability occurring before the claim isfiled. 20 CFR 725.503. To the extent thatthe cross-reference to 725.202imp roperly limits the minersentitlement p eriod (and conflicts with20 CFR 725.503), the reference will be

removed, and the language clarified toconform to 725.503.

New p aragraph s (c) and (d)incorporate m aterial from 20 CFR718.404, wh ich has been deleted.Paragraph (c) makes exp licit a min ersineligibility for black lun g disabilitybenefits if the min er resumes his u sualcoal mine work or comparable and

gainful work absent th e presence ofcomplicated pneumoconiosis. Paragraph(d) reiterates the Departments au thorityto reopen a finally approved claimdu ring the lifetime of the min er anddevelop m edical evidence if theparticular circumstances warrantreopenin g. Both provisions are morelogically placed in part 725 asregulations of program-wideapplicability. See 20 CFR 725 .2(b).

20 CFR 725.204, .214. Sections725.204 and 725.214 shou ld beamend ed to recognize the coexistingeligibility of both a qualified spou se and

an individual wh o married the m iner inignorance of a legal imped iment to th atmarriage. The BLBA incorporates 416(h)(1) of the Social Security Act(SSA), which describes therequiremen ts for establishing the m aritalrelationship between th e wage earnerand th e spouse for purposes ofqualifying as a wife, hu sband, wid owor w idow er. 42 U.S.C. 416(h)(1), asinco rpo rated by 30 U.S.C. 902(a)(2), (e).The Department has imp lemented 416(h)(1) in th e current 725.204 (forspou ses) and 725.214 (for survivingsp

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