19456 Federal Register / Vol. 77, No. 62 / Friday, March 30, 2012 / Proposed Rules 

DEPARTMENT OF LABOR 

Office of Workers’ Compensation 

Programs 

20 CFR Parts 718 and 725 

RIN 1240–AA04 

Regulations Implementing the Byrd 

Amendments to the Black Lung 

Benefits Act: Determining Coal Miners’ 

and Survivors’ Entitlement to Benefits 

AGENCY: Office of Workers’ 

Compensation Programs, Labor. 

ACTION: Notice of proposed rulemaking; 

request for comments. 

SUMMARY: This document contains 

proposed regulations implementing 

amendments to the Black Lung Benefits 

Act (BLBA or Act) made by the Patient 

Protection and Affordable Care Act 

(ACA). The ACA amended the BLBA in 

two ways. First, it revived a rebuttable 

presumption of total disability or death 

due to pneumoconiosis for certain 

claims. Second, it reinstituted derivative 

entitlement to benefits for certain 

eligible survivors of coal miners whose 

lifetime benefit claims were awarded 

because they were totally disabled due 

to pneumoconiosis. These survivors 

need not also prove that the miner died 

due to coal workers’ pneumoconiosis. 

The proposed rules would clarify how 

the statutory presumption may be 

invoked and rebutted and the 

application and scope of the derivativesurvivor-entitlement provision. The 

proposed rules also eliminate several 

unnecessary or obsolete provisions. 

DATES: The Department invites written 

comments on the proposed regulations 

from interested parties. Written 

comments must be received by May 29, 

2012. 

ADDRESSES: You may submit written 

comments, identified by RIN number 

1240–AA04, by any of the following 

methods. To facilitate receipt and 

processing of comments, OWCP 

encourages interested parties to submit 

their comments electronically. 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions on the Web site for 

submitting comments. 

• Facsimile: (202) 693–1395 (this is 

not a toll-free number). Only comments 

of ten or fewer pages, including a fax 

cover sheet and attachments, if any, will 

be accepted by Fax. 

• Regular Mail: Submit comments on 

paper, disk, or CD–ROM to the Division 

of Coal Mine Workers’ Compensation 

Programs, Office of Workers’ 

Compensation Programs, U.S. 

Department of Labor, Room C–3520, 200 

Constitution Avenue NW., Washington, 

DC 20210. The Department’s receipt of 

U.S. mail may be significantly delayed 

due to security procedures. You must 

take this into consideration when 

preparing to meet the deadline for 

submitting comments. 

• Hand Delivery/Courier: Submit 

comments on paper, disk, or CD–ROM 

to Division of Coal Mine Workers’ 

Compensation Programs, Office of 

Workers’ Compensation Programs, U.S. 

Department of Labor, Room C–3520, 200 

Constitution Avenue NW., Washington, 

DC 20210. 

Instructions: All submissions received 

must include the agency name and the 

Regulatory Information Number (RIN) 

for this rulemaking. All comments 

received will be posted without change 

to http://www.regulations.gov, including 

any personal information provided. 

Docket: For access to the docket to 

read background documents or 

comments received, go to http:// 

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Michael McClaran, Deputy Director, 

Division of Coal Mine Workers’ 

Compensation, Office of Workers’ 

Compensation Programs, U.S. 

Department of Labor, 200 Constitution 

Avenue NW., Suite N–3464, 

Washington, DC 20210. Telephone: 

(202) 693–0978 (this is not a toll-free 

number). TTY/TDD callers may dial 

toll-free 1–800–877–8339 for further 

information. 

SUPPLEMENTARY INFORMATION: 

I. Background of This Rulemaking 

The BLBA, 30 U.S.C. 901–944, 

provides for the payment of benefits to 

coal miners and certain of their 

dependent survivors on account of total 

disability or death due to coal workers’ 

pneumoconiosis. 30 U.S.C. 901(a); Usery 

v. Turner Elkhorn Mining Co., 428 U.S. 

1, 5 (1976). Benefits are paid by either 

an individual coal mine operator that 

employed the coal miner (or its 

insurance carrier), or the Black Lung 

Disability Trust Fund. Director, OWCP 

v. Bivens, 757 F.2d 781, 783 (6th Cir. 

1985). The purpose of this rulemaking is 

to implement the amendments to the 

BLBA made by the ACA, Public Law 

111–148, 1556, 124 Stat. 119, 260 

(2010). These amendments reinstate two 

BLBA entitlement provisions—Section 

411(c)(4) and Section 422(l), 30 U.S.C. 

921(c)(4); 932(l)—that had been 

repealed with respect to claims filed on 

or after January 1, 1982. The history of 

these provisions is described below. 

A. Section 411(c)(4): the ‘‘Fifteen-Year 

Presumption’’ 

In 1972, Congress amended the BLBA 

to include Section 411(c)(4), known as 

the ‘‘15-year presumption,’’ 30 U.S.C. 

921(c)(4) (1970 ed., Supp. IV), which 

assisted claimants in proving that a 

totally disabled miner’s disability or 

death was due to pneumoconiosis. The 

presumption could be invoked if the 

miner (1) ‘‘was employed for fifteen 

years or more in one or more 

underground coal mines’’ or in surface 

mines in which conditions were 

‘‘substantially similar to conditions in 

an underground mine’’ and (2) suffered 

from ‘‘a totally disabling respiratory or 

pulmonary impairment[.]’’ Id. If those 

criteria were met, the claimant invoked 

a rebuttable presumption that the miner 

‘‘is totally disabled due to 

pneumoconiosis, that his death was due 

to pneumoconiosis, or that at the time 

of his death he was totally disabled by 

pneumoconiosis.’’ Id. The presumption 

could be rebutted by demonstrating that 

the miner ‘‘does not, or did not, have 

pneumoconiosis’’ or that ‘‘his 

respiratory or pulmonary impairment 

did not arise out of, or in connection 

with, employment in a coal mine.’’ Id. 

Based on the Surgeon General’s 

testimony that the prevalence of 

pneumoconiosis increased significantly 

after 15 years of coal dust exposure, the 

presumption’s purpose was to ‘‘[r]elax 

the often insurmountable burden of 

proving eligibility’’ that claimants had 

faced. S. Rep. No. 92–743, at 1 (1972). 

B. Section 422(l): Derivative Survivor’s 

Entitlement 

Section 422(l) was added to the BLBA 

by the Black Lung Benefits Reform Act 

of 1977, Public Law 95–239, 7(h), 92 

Stat. 95, 100 (1978). Section 422(l) 

originally provided that ‘‘[i]n no case 

shall the eligible survivors of a miner 

who was determined to be eligible to 

receive benefits under this title at the 

time of his or her death be required to 

file a new claim for benefits, or refile or 

otherwise revalidate the claim of such 

miner.’’ Id. This provision allowed an 

eligible survivor of a miner to establish 

entitlement to benefits based solely on 

the fact that the miner had been 

awarded benefits on a claim filed during 

his lifetime because he was totally 

disabled due to pneumoconiosis. 

Pothering v. Parkson Coal Co., 861 F.2d 

1321, 1327 (3d Cir. 1988). 

C. Effect of the 1981 BLBA Amendments 

on Sections 411(c)(4), 422(l), and Other 

Provisions 

The Black Lung Benefits Amendments 

of 1981, Public Law 97–119, 202(b)(1), 


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203(a)(6), 95 Stat. 1635, 1644 (1981), 

prospectively eliminated both the 15- 

year presumption and the provision for 

derivative-survivors’ entitlement. 

Congress restricted the 15-year 

presumption by adding the following 

sentence to Section 411(c)(4): ‘‘The 

provisions of this paragraph shall not 

apply with respect to claims filed on or 

after the effective date of the Black Lung 

Benefits Amendments of 1981.’’ 30 

U.S.C. 921(c)(4) (1982). Accordingly, the 

presumption did not apply to claims 

filed on or after January 1, 1982, the 

effective date of the 1981 amendments. 

For such claims, miners and their 

survivors were required to prove a 

causal nexus between the miner’s 

respiratory impairment or death and 

pneumoconiosis by a preponderance of 

the evidence (unless aided by one of the 

remaining presumptions). 

Congress added similar language to 

Section 422(l) to eliminate derivative 

entitlement for survivors who filed 

claims on or after the effective date of 

the 1981 amendments. 30 U.S.C. 932(l) 

(1982). At the same time, the 1981 

amendments eliminated a survivor’s 

ability to establish entitlement by 

demonstrating that the miner was totally 

disabled due to pneumoconiosis at the 

time of his death. As a consequence of 

these amendments, a survivor who filed 

a claim on or after January 1, 1982 could 

establish entitlement only by proving 

(either through direct evidence or the 

remaining presumptions) that the 

miner’s death was due to 

pneumoconiosis, with one limited 

exception. Mancia v. Director, OWCP, 

130 F.3d 579, 584 n.6 (3d Cir. 1997). 

That exception was for survivors who 

filed a claim prior to June 30, 1982, who 

could establish eligibility under the 

Section 411(c)(5) presumption of 

entitlement, 30 U.S.C. 921(c)(5). 

In addition to the changes to Sections 

411(c)(4) and 422(l), the 1981 

amendments revised two other statutory 

presumptions, both of which are 

relevant to the rules the Department 

now proposes. First, for survivors who 

filed claims on or after January 1, 1982, 

Congress eliminated a rebuttable 

presumption that the miner’s death was 

due to pneumoconiosis if the miner 

worked in coal mines for at least 10 

years and died from a respirable disease. 

30 U.S.C. 921(c)(2). Second, for 

survivors who filed claims on or after 

June 30, 1982, Congress eliminated a 

rebuttable presumption of entitlement to 

benefits where the miner worked at least 

25 years in coal mine employment prior 

to June 30, 1971 and died prior to March 

1, 1978. 30 U.S.C. 921(c)(5). 

The 1981 amendments left intact only 

two entitlement presumptions 

contained in Section 411(c). One 

provides a rebuttable presumption that 

a miner’s pneumoconiosis arose out of 

his coal mine employment if the miner 

worked in such employment for at least 

10 years. 30 U.S.C. 921(c)(1). And the 

other provides that a miner with 

‘‘complicated’’ pneumoconiosis, the 

most advanced form of the disease, see 

Usery, 428 U.S. at 7, is irrebuttably 

presumed to be totally disabled due to, 

or to have died from, pneumoconiosis, 

30 U.S.C. 921(c)(3). 

D. Patient Protection and Affordable 

Care Act 

In 2010, Section 1556 of the ACA 

restored the Section 411(c)(4) 15-year 

presumption and Section 422(l)’s 

provision for derivative survivors’ 

entitlement for certain claims. Public 

Law 111–148, 1556, 124 Stat. 119, 260 

(2010). ACA Section 1556 has three 

subsections. Subsection (a), entitled 

‘‘Rebuttable Presumption,’’ amended 

Section 411(c)(4) by deleting the 

section’s last sentence—the language 

inserted by the 1981 amendments— 

which had restricted the presumption’s 

application to claims filed before 

January 1, 1982. Subsection (b), entitled 

‘‘Continuation of Benefits,’’ amended 

Section 422(l) by deleting the similarly 

restrictive language added to that 

section by the 1981 amendments. 

Finally, subsection (c), entitled 

‘‘Effective Date,’’ provides that ‘‘[t]he 

amendments made by this section shall 

apply with respect to claims filed under 

part B or part C of the Black Lung 

Benefits Act (30 U.S.C. 921 et seq., 931 

et seq.) after January 1, 2005, that are 

pending on or after the date of 

enactment of this Act.’’ The ACA was 

enacted on March 23, 2010, when the 

President signed it into law. 

As a result of these amendments, a 

miner or survivor who files his or her 

claim after January 1, 2005 may now 

rely on the 15-year presumption in 

establishing entitlement to benefits, 

provided that the claim was pending on 

or after March 23, 2010 and the 

presumption’s requirements for 

invocation are met. In addition, 

survivors whose claims meet the 

effective-date requirements may not be 

required to prove that the miner’s death 

was due to pneumoconiosis to be 

entitled to benefits. Assuming that the 

BLBA’s other conditions of entitlement 

(such as relationship and dependency) 

are met, the survivor is entitled to 

benefits if the miner was awarded 

benefits based on a lifetime claim 

because he was totally disabled due to 

pneumoconiosis. 

II. Summary of the Proposed Rule 

The proposed regulations are 

primarily intended to implement 

amended Sections 411(c)(4) and 422(l) 

by revising existing regulations. The 

Department has also reviewed these 

rules in accordance with Executive 

Order 13563 (January 18, 2011), which, 

among other requirements, instructs 

agencies to review ‘‘rules that may be 

outmoded, ineffective, insufficient, or 

excessively burdensome, and to modify, 

streamline, expand, or repeal them.’’ 

Thus, in addition to implementing the 

ACA amendments, the Department 

proposes revising or ceasing publication 

of several related rules that are obsolete 

or unnecessary. 

A. Effective Date of Amendments and 

Retroactive Impact 

Throughout the proposed rules, the 

Department has delineated the claims to 

which the ACA amendments apply in 

accordance with the plain language of 

the ACA’s effective-date provision. As 

noted, ACA Section 1556(c) provides 

that ‘‘[t]he amendments made by this 

section shall apply with respect to 

claims filed under part B or part C of the 

Black Lung Benefits Act * * * after 

January 1, 2005, that are pending on or 

after [March 23, 2010].’’ The ACA 

therefore unambiguously provides that 

the amendments apply to all claims 

filed prospectively (i.e., on or after 

March 23, 2010) because they 

necessarily meet the effective-date 

criteria, namely, claims that are filed 

after January 1, 2005 and are pending on 

or after March 23, 2010. 

Section 1556(c) also explicitly applies 

the ACA amendments retroactively to a 

limited group of claims. This group 

includes any claim filed between 

January 1, 2005 and March 23, 2010, 

provided that the claim remained 

pending on or after March 23, 2010. It 

is within Congress’ authority to 

determine that legislation be applied 

retroactively. Landgraf v. USI Film 

Prod., 511 U.S. 244, 266–270 (1994). 

Because the ACA expressly requires 

retroactive application of these 

amendments, the Department is 

obligated to promulgate implementing 

regulations that have similar retroactive 

effect. See Nat’l Mining Ass’n v. Dep’t of 

Labor, 292 F.3d 849, 859 (DC Cir. 2002) 

(agency may promulgate regulations 

having retroactive effect if Congress 

expressly so authorizes). 

Thus, a miner or survivor whose 

claim falls into either of these two 

groups may now rely on the statute as 

amended by the ACA to establish 

entitlement to benefits. These miners 

and survivors may use the 15-year 


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19458 Federal Register / Vol. 77, No. 62 / Friday, March 30, 2012 / Proposed Rules 

presumption to establish entitlement to 

benefits, provided that the invocation 

requirements are met. In addition, 

survivors whose claims fall into either 

group may be derivatively entitled to 

benefits if the miner was totally 

disabled due to pneumoconiosis as 

evidenced by a final award of benefits 

on a BLBA claim filed during the 

miner’s lifetime. 

B. Section-by-Section Explanation 

20 CFR 718.1 Statutory provisions 

Current § 718.1(a) lists, by popular 

title, the initial statute and the various 

amendments which comprise the BLBA. 

The section also describes criteria for 

establishing miners’ and survivors’ 

entitlement to benefits based on the date 

of claim filing. Finally, current 

§ 718.1(a) sets forth two of the statutory 

provisions, Sections 402(f) and 413(b) of 

the Act, 30 U.S.C. 902(f), 923(b), which 

authorize the Secretary of Labor to 

establish medical criteria for 

determining total disability and death 

due to pneumoconiosis. 

The Department proposes to 

discontinue publication of most of 

current § 718.1(a) because the 

information it provides is either 

contained in other regulations or is no 

longer relevant to current claims. 

Current § 718.1(a)’s list of statutory 

provisions that comprise the Act is also 

contained in proposed § 725.1(a). 

Similarly, current § 718.1(a)’s 

discussion of the conditions necessary 

for establishing entitlement to benefits 

duplicates information contained in 

current §§ 725.202, 725.212, 725.218 

and 725.222. Although the Department 

is proposing to revise §§ 725.212, 

725.218 and 725.222, all information 

related to the requirements for 

establishing entitlement will appear in 

those regulations. There is no need to 

repeat this information in a separate 

regulation. 

Moreover, current § 718.1(a) 

addresses, in part, criteria applicable 

only to claims filed prior to June 30, 

1982. Few, if any, claims filed prior to 

that date remain in litigation. Thus, it is 

no longer necessary to publish the 

criteria governing these claims, and the 

Department is proposing to remove it 

from other regulations (including 

§§ 725.212, 725.218 and 725.222). 

Omission of these criteria in future 

editions of the Code of Federal 

Regulations will not affect the benefit 

entitlement of any survivor who filed a 

claim before June 30, 1982 and is 

currently receiving benefits. Claimants 

who were awarded benefits on such 

claims will continue to receive them. 

Moreover, if any claim filed before June 

30, 1982, results in litigation after the 

effective date of these regulations, the 

claim will continue to be governed by 

applicable criteria as reflected in the 

2011 version of the Code of Federal 

Regulations. See discussion under 

§ 718.2. 

Other sentences in current § 718.1(a) 

are unnecessary because they merely 

provide historical information and are 

not relevant to the adjudication of any 

current claim. These sentences state that 

originally the Secretary of Health, 

Education and Welfare (now the 

Secretary of Health and Human 

Services) had authority to establish 

standards for miner and survivor 

eligibility under the Act and that these 

standards were originally adopted by 

the Secretary of Labor to adjudicate 

claims. While these statements are 

correct, since March 1, 1978, the 

Secretary of Labor has had independent 

authority to establish entitlement 

criteria, 30 U.S.C. 902(f), Public Law 

95–239, 2(c), 92 Stat. 95, 1 (1978), and 

has exercised that authority with respect 

to all claims filed since March 31, 1980, 

20 CFR 718.2 (2011); 45 FR 13677, 

13679 (Feb. 29, 1980). 

The proposed rule does, however, 

retain three informational sentences 

from current § 718.1(a), and redesignates the paragraph as § 718.1. The 

first sentence explains that Section 

402(f) of the Act, 30 U.S.C. 902(f), grants 

the Secretary of Labor authority to 

establish criteria for determining total 

disability or death due to 

pneumoconiosis for claims filed under 

Part C of the Act, 30 U.S.C. 931–44; i.e., 

claims filed after December 31, 1973. 

The second sentence of proposed 

§ 718.1 explains that Section 402(f) also 

grants the Secretary of Labor, in 

consultation with the Director of the 

National Institute for Occupational 

Safety and Health, authority to establish 

criteria for all appropriate medical tests 

administered in connection with a claim 

for benefits. The third sentence explains 

that Section 413(b) of the Act, 30 U.S.C. 

923(b), authorizes the Secretary of Labor 

to establish criteria for x-ray techniques 

in claims filed under the Act. These 

statutory provisions are all directly 

relevant to the rules adopted in Part 

718. 

Although fully consistent in meaning 

with current § 718.1(a), the first 

sentence in proposed § 718.1 reflects 

some editorial changes made to update 

the regulation and eliminate 

information only of historical interest. 

Thus, a reference to ‘‘partial’’ disability 

in current § 718.1(a) is omitted because 

it is a reference to the method of 

survivor entitlement found in § 718.306 

of the regulations and 30 U.S.C. 

921(c)(5), both of which are relevant 

only to claims filed before June 30, 

1982. See discussion under § 718.306. 

Similarly, language referring to the 

statutory amendments that gave the 

Secretary of Labor authority to establish 

criteria for entitlement is omitted in 

favor of a simple reference to the current 

statutory section. 

The Department also proposes to 

discontinue publication of current 

§ 718.1(b). This section addresses claims 

filed prior to April 1, 1980, and claims 

reviewed pursuant to Section 435 of the 

Act, 30 U.S.C. 945 (2000), and directs 

that all such claims be reviewed under 

the criteria at part 727 of Title 20 of the 

Code of Federal Regulations. Section 

435 of the Act required the Department 

to review all Part C claims denied on or 

before March 1, 1978 or that were 

pending as of that date. It also required 

the Department to review certain Part B 

claims under the Part 727 criteria. 

Section 435 of the Act was repealed in 

2002, however. Black Lung 

Consolidation of Administrative 

Responsibility Act, Public Law 107–275, 

2(c)(1), 116 Stat. 1925 (2002). Because 

few, if any, such claims remain, the 

Department discontinued annual 

publication of the 20 CFR Part 727 

criteria in the Code of Federal 

Regulations in 2000. See 65 FR 79920, 

80029 (Dec. 20, 2000); 20 CFR 725.4(d) 

(2011). Consequently, there is no reason 

to continue publication of current 

§ 718.1(b). 

20 CFR 718.2 Applicability of This 

Part 

Current § 718.2 addresses the 

applicability of the Part 718 regulations. 

The first two sentences state that Part 

718 applies to claims filed after March 

31, 1980, except for the second sentence 

of § 718.204(a), which applies only to 

claims filed after January 19, 2001. The 

third sentence of current § 718.2 states 

that Part 718 also applies to claims 

reviewed but not approved under 20 

CFR part 727. Finally, the last sentence 

of current § 718.2 states that the 

provisions of Part 718 should be 

construed together in the adjudication 

of claims. 

Proposed § 718.2 changes the effective 

date in the first sentence from March 31, 

1980 to June 30, 1982. This revision 

reflects the Department’s proposal to 

discontinue publication of § 718.306, 

which provides a survivor with a 

presumption of entitlement in certain 

circumstances, but only if the claim was 

filed before June 30, 1982. See 

discussion under § 718.306. It further 

reflects the Department’s proposal to 

cease publication of other statutory 

presumptions and criteria for 


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establishing entitlement available only 

to claims filed before January 1, 1982. 

See discussion under §§ 718.1; 718.205; 

718.303; and 718.305. Few, if any, of 

these claims filed (at the latest) before 

June 30, 1982 remain in litigation and 

therefore continued publication of these 

provisions in the Code of Federal 

Regulations is unnecessary. Omission of 

these criteria in future editions of the 

Code of Federal Regulations will not 

affect the benefit entitlement of any 

miner or survivor who filed a claim 

before June 30, 1982 and is currently 

receiving benefits. Claimants who were 

awarded benefits on such claims will 

continue to receive them. Moreover, if 

any claim filed before June 30, 1982 

results in litigation after the effective 

date of these regulations, the claim will 

continue to be governed by the criteria 

in the 2011 version of the Code of 

Federal Regulations. 

The Department also proposes to 

discontinue publication of the third 

sentence of current § 718.2, which states 

that any claim not approved under the 

criteria in 20 CFR Part 727 may be 

reviewed under Part 718. This sentence 

pertains to claims filed prior to April 1, 

1980, and claims reviewed pursuant to 

Section 435 of the Act. Section 435, 

which was repealed in 2002, Public Law 

107–275, 2(c)(1), 116 Stat. 1925 (2002), 

required the Department to review all 

claims pending on March 1, 1978 and 

all claims previously denied on or 

before March 1, 1978. It also required 

the Department to review certain Part B 

claims under the Part 727 criteria. 

Because few, if any, such claims remain, 

the Department discontinued annual 

publication of the 20 CFR Part 727 

criteria in the Code of Federal 

Regulations in 2000. See 65 FR 79920, 

80029 (Dec. 20, 2000); 20 CFR 725.4(d) 

(2011). Consequently, this sentence is 

obsolete and there is no reason to 

continue its publication. 

For clarity, the Department has 

divided proposed § 718.2 into three 

paragraphs. Proposed § 718.2(a) changes 

the effective date of Part 718 from 

March 31, 1980 to June 30, 1982, and 

retains the current exception that the 

second sentence of § 718.204(a) applies 

only to claims filed after January 19, 

2001. See 68 FR 69930, 69933 (Dec. 15, 

2003). Proposed § 718.2(a) also contains 

new language that briefly describes the 

contents of Part 718. Proposed § 718.2(b) 

states that the 2011 version of Part 718 

would apply to the adjudication of any 

claim filed prior to June 30, 1982. This 

paragraph thus fills in the gap left by the 

change in Part 718’s effective date. 

Finally, proposed § 718.2(c) retains the 

fourth sentence of current § 718.2 

without alteration. 

20 CFR 718.3 Scope and Intent of This 

Part 

Section 718.3 generally outlines the 

issues and statutory provisions the Part 

718 criteria address. Current § 718.3(a) 

includes a reference to partial disability 

in connection with a claim subject to 

§ 718.306, which implements the 

Section 411(c)(5) statutory presumption. 

The proposed rule discontinues 

publication of § 718.306 because it is 

obsolete: It applies only to claims filed 

prior to June 30, 1982. See discussion 

under § 718.306. Thus, proposed 

§ 718.3(a) removes the reference to 

§ 718.306 and partial disability. The rest 

of the rule remains unchanged. 

20 CFR 718.202 Determining the 

Existence of Pneumoconiosis 

Section 718.202 addresses how a 

claimant may establish the existence of 

pneumoconiosis. Current § 718.202(a)(3) 

lists the presumptions that, when 

invoked, allow the existence of 

pneumoconiosis to be presumed; the list 

includes § 718.306. The proposed rule 

discontinues publication of § 718.306 

because it is obsolete: It applies only to 

claims filed prior to June 30, 1982. See 

discussion under § 718.306. Thus, 

proposed § 718.202(a)(3) removes the 

reference to § 718.306. The rest of the 

rule remains unchanged. 

20 CFR 718.205 Death Due to 

Pneumoconiosis 

Section 718.205 sets forth the criteria 

for establishing that a miner’s death was 

due to pneumoconiosis. The proposed 

rule revises § 718.205 to clarify that 

some survivors need not prove the 

miner died due to pneumoconiosis to be 

entitled to benefits given the ACArevived Section 422(l) derivativeentitlement provision; expands the 

criteria to include the Section 411(c)(4) 

15-year presumption of death due to 

pneumoconiosis for claims governed by 

the ACA amendments; and eliminates 

outmoded provisions. Each of these 

changes is described below. 

Current § 718.205(a) provides a 

general overview of the elements a 

miner’s survivor must prove ‘‘[i]n order 

to receive benefits:’’ (1) the miner had 

pneumoconiosis; (2) the miner’s 

pneumoconiosis arose out of coal mine 

employment; and (3) the miner’s death 

was due to pneumoconiosis. For 

survivor claims that meet ACA Section 

1556(c)’s effective-date requirements 

(i.e., filed after January 1, 2005 and 

pending on or after March 23, 2010), 

proving these elements may no longer 

be required. As previously discussed, 

the ACA amendments revive Section 

422(l) for these claims, which provides 

for derivative survivor entitlement when 

the miner was totally disabled due to 

pneumoconiosis and entitled to receive 

benefits based on a claim filed during 

his or her lifetime. In that instance, the 

survivor does not have to prove that the 

miner died due to pneumoconiosis to 

establish his or her own entitlement to 

benefits. Current § 718.205(a) therefore 

requires revision. To eliminate any 

potential misunderstanding, the 

proposed rule expands the current rule’s 

phrase ‘‘[i]n order to receive benefits’’ to 

read ‘‘[i]n order to receive benefits based 

on a showing of death due to 

pneumoconiosis[.]’’ This change will 

ensure that § 718.205 accurately reflects 

the statute. 

The Department proposes to cease 

publication of current § 718.205(b), 

which summarizes the criteria for 

establishing death due to 

pneumoconiosis in claims filed before 

1982. Few, if any, such claims remain 

in litigation. Thus, it is no longer 

necessary to publish the criteria 

governing such entitlement. Omission of 

these criteria in future editions of the 

Code of Federal Regulations will not 

affect the benefit entitlement of any 

survivor who filed a claim before 

January 1, 1982 and is currently 

receiving benefits. Claimants who were 

awarded benefits on such claims will 

continue to receive them. Moreover, if 

any pre-1982 claim results in litigation 

after the effective date of these 

regulations, the claim will continue to 

be governed by applicable criteria as 

reflected in the 2011 version of the Code 

of Federal Regulations. See discussion 

under § 718.2. 

Current § 718.205(c) describes the 

criteria for establishing death due to 

pneumoconiosis in survivors’ claims 

filed on or after January 1, 1982. The 

proposed rule redesignates this 

paragraph as § 718.205(b) and makes 

several revisions to the text. First, the 

proposed rule eliminates the language 

restricting the criteria to claims filed on 

or after January 1, 1982. This distinction 

is no longer necessary under the rule as 

proposed because § 718.205 will no 

longer contain criteria for claims filed 

before 1982. Moreover, § 718.2, as 

proposed, already provides that the Part 

718 regulations apply to the 

adjudication of all claims filed on or 

after June 30, 1982 under Part C of the 

Act. 

Second, proposed § 718.205(b) adds a 

new subsection (4) to include the 

Section 411(c)(4) 15-year presumption 

as an additional method of proving that 

the miner’s death was due to 

pneumoconiosis for claims governed by 

the ACA amendments. As previously 

discussed, the ACA amendments 


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revived the 15-year presumption for 

claims meeting the ACA’s effective-date 

requirements. If the survivor proves that 

the miner had at least 15 years of 

qualifying coal mine employment and a 

totally disabling respiratory or 

pulmonary impairment, the survivor is 

entitled to a rebuttable presumption that 

the miner’s death was due to 

pneumoconiosis. Accordingly, proposed 

§ 718.205(b)(4) provides that for a 

survivor’s claim filed after January 1, 

2005, and pending on or after March 23, 

2010, death will be considered due to 

pneumoconiosis where the 15-year 

presumption is invoked and not 

rebutted. The proposed rule refers to 

§ 718.305, which is the regulation that 

implements Section 411(c)(4) of the Act. 

See discussion under § 718.305. 

Third, proposed § 718.205(b) retains 

the thrust of current § 718.205(c)(4), 

which precludes entitlement where 

death is due to a traumatic injury or 

unrelated medical condition unless the 

claimant proves that pneumoconiosis 

substantially contributed to death; the 

language is revised to clarify that a 

survivor may establish the required 

causal connection by presumption. The 

proposed rule redesignates the revised 

paragraph as § 718.205(b)(5). Fourth, 

proposed § 718.205(b) retains current 

§ 718.205(c)(5) (defining 

pneumoconiosis as a ‘‘substantially 

contributing cause’’ when it ‘‘hastens 

the miner’s death)’’ and redesignates it 

as § 718.205(b)(6). 

Finally, the Department proposes to 

cease publication of current 

§ 718.205(d). That section provides for 

expedited consideration of survivors’ 

claims filed on or after January 1, 1982 

if the miner was receiving benefits at the 

time of death. The Department first 

promulgated it after enactment of the 

Black Lung Benefits Amendments of 

1981, Public Law 97–119, 95 Stat. 1635 

(1981), which limited survivors’ 

entitlement based on a miner’s award to 

claims filed before January 1, 1982. As 

a result, survivors who filed claims on 

or after January 1, 1982 had to prove 

that the miner’s death was due to 

pneumoconiosis in order to receive 

benefits. The Department directed 

expedited consideration of such 

survivors’ claims to prevent lengthy 

disruptions in benefit payments 

between the miner’s death and the final 

adjudication of the survivor’s claim. 

Because the ACA reinstated Section 

422(l)’s derivative-entitlement provision 

for prospective survivors’ claims, there 

is no longer a need to adjudicate the 

cause of the miner’s death in all 

survivors’ cases. Thus, § 718.205(d) is 

obsolete, and the Department proposes 

to remove it. Nevertheless, prompt 

payment of benefits to the survivors of 

entitled miners remains a goal of the 

Department. To that end, the 

Department has proposed revising 

§ 725.418(a) to provide for expedited 

consideration of survivor claims 

governed by Section 422(l). See 

discussion under § 725.418. 

20 CFR 718.301 Establishing Length of 

Employment as a Miner 

Section 718.301 addresses how, for 

purposes of applying the statutory 

presumptions implemented in the 

regulations, a miner’s length of 

employment should be determined. The 

first sentence of current § 718.301 lists 

those presumptions; the list includes 

§§ 718.303 and 718.306. The proposed 

rule discontinues publication of both 

§§ 718.303 and 718.306 because they are 

obsolete: they apply only to claims filed 

(at the latest) prior to June 30, 1982. See 

discussion under §§ 718.303 and 

718.306. Thus, proposed § 718.301 

deletes the references to these two 

regulations. The rest of the rule remains 

unchanged. 

20 CFR 718.303 Death From a 

Respirable Disease 

The Department proposes to 

discontinue publication of this 

provision because it is obsolete. Current 

§ 718.303 implements a statutory 

presumption applicable only to claims 

filed prior to January 1, 1982. 30 U.S.C. 

921(c)(2). The provision presumed that 

the miner’s death was due to 

pneumoconiosis if the miner worked for 

10 years or more in coal mine 

employment and died due to a 

respirable disease. Because the 

presumption applies only to claims filed 

approximately 30 or more years ago, it 

affects few if any claims currently being 

paid, much less in litigation. Omission 

of these criteria in future editions of the 

Code of Federal Regulations will not 

affect the benefit entitlement of any 

survivor who filed a claim before 

January 1, 1982 and is currently 

receiving benefits. Claimants who were 

awarded benefits on such claims will 

continue to receive them. Moreover, if 

any claim filed before June 30, 1982, 

results in litigation after the effective 

date of these regulations, the claim will 

continue to be governed by applicable 

criteria as reflected in the 2011 version 

of the Code of Federal Regulations. See 

discussion under § 718.2. 

20 CFR 718.305 Presumption of 

Pneumoconiosis 

Current § 718.305 implements the 

Section 411(c)(4) 15-year presumption 

previously described in the background 

section. As noted there, this statutory 

section provides a rebuttable 

presumption of total disability or death 

due to pneumoconiosis if the miner 

‘‘was employed for fifteen years or more 

in one or more underground coal 

mines’’ or in a coal mine other than an 

underground mine in conditions 

‘‘substantially similar to conditions in 

an underground mine’’ and suffers or 

suffered from ‘‘a totally disabling 

respiratory or pulmonary impairment.’’ 

30 U.S.C. 921(c)(4). As currently 

written, § 718.305 describes the 

presumption’s requirements using 

language largely taken verbatim from 

the statute and offers little additional 

guidance regarding how the 

presumption may be invoked or 

rebutted. Moreover, current § 718.305 

contains effective dates that are no 

longer accurate in light of the ACA 

amendments. Accordingly, proposed 

§ 718.305 clarifies both the applicability 

of the presumption and the manner in 

which it may be invoked and rebutted, 

and eliminates obsolete provisions. 

Applicability 

As outlined previously, the rebuttable 

presumption provided by Section 

411(c)(4) of the Act now applies both to 

claims filed before January 1, 1982 and 

to claims meeting ACA Section 

1556(c)’s effective-date requirements: 

those claims filed after January 1, 2005, 

that are pending on or after March 23, 

2010, the effective date of the ACA 

amendments. Current § 718.305(e), 

however, specifically limits the 

applicability of the presumption to 

claims filed prior to January 1, 1982. 

The Department has deleted 

§ 718.305(e) from the proposed rule 

because it is no longer accurate. Instead, 

proposed § 718.305(a) states that the 

provision is applicable to all claims 

filed after January 1, 2005, and pending 

on or after March 23, 2010. 

The Department has not included a 

similar provision for claims filed before 

January 1, 1982 in the proposed 

regulation. Current § 718.305, as 

published in the 2011 edition of the 

Code of Federal Regulations, will 

remain as a guide to establishing 

entitlement pursuant to Section 

411(c)(4) of the Act for these claims. 

Few, if any, such claims remain in 

litigation, making the continued 

publication of the current section 

unnecessary. Thus, the Department 

proposes to cease publishing a 

regulation governing the application of 

the Section 411(c)(4) presumption to 

claims filed before January 1, 1982. 

Omission of these criteria in future 

editions of the Code of Federal 

Regulations will not affect the benefit 

entitlement of any individual who filed 


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a claim before January 1, 1982 and is 

currently receiving benefits. Claimants 

who were awarded benefits on such 

claims will continue to receive them. 

Moreover, if any pre-1982 claim results 

in litigation after the effective date of 

these regulations, the claim will 

continue to be governed by applicable 

criteria as reflected in the 2011 version 

of the Code of Federal Regulations. See 

discussion under § 718.2. 

Invocation 

Proposed § 718.305(b)(1) sets out the 

facts a claimant must prove to invoke 

the presumption: (1) The miner worked 

for fifteen or more years in one or more 

underground coal mines or in mines 

other than underground mines in 

conditions ‘‘substantially similar to 

conditions in an underground mine;’’ 

(2) the claimant cannot establish 

entitlement under § 718.304 of the 

regulations by establishing the presence 

of complicated pneumoconiosis by 

chest x-ray; and (3) the miner has or had 

a totally disabling respiratory or 

pulmonary impairment. Proposed 

§ 718.305(b)(1)(iii) also states that the 

existence of a totally disabling 

respiratory or pulmonary impairment 

must be established pursuant to the 

criteria contained in § 718.204, except 

that § 718.204(d), which addresses the 

use of lay evidence, is not applicable. 

Instead, the permissible use of lay 

evidence in the 15-year presumption 

context is outlined in proposed 

§§ 718.305(b)(3) and (b)(4). Each of these 

provisions is described in detail below. 

Length of Coal Mine Employment. 

Section 411(c)(4) of the Act provides 

that the presumption may be invoked if 

the miner worked for fifteen years in 

one or more underground coal mines, 

but also states that the presumption may 

be invoked if the ‘‘conditions of a 

miner’s employment in a coal mine 

other than an underground mine was 

substantially similar to conditions in an 

underground mine.’’ 30 U.S.C. 921(c)(4). 

Neither the statute nor current § 718.305 

state how the required similarity 

between underground coal-mine 

employment and non-underground coal 

mine employment may be 

demonstrated. This omission has caused 

litigation. 

To fill the gap left by the statute, 

proposed § 718.305(b)(2) sets forth what 

a claimant must show to meet the 

‘‘substantially similar’’ requirement. A 

claimant must demonstrate that the 

miner was exposed to coal-mine dust 

during employment at a nonunderground mine. The claimant need 

not also produce evidence addressing 

the level of dust exposure in 

underground coal mines. Instead, it is 

incumbent upon the fact finder to 

compare the evidence regarding 

conditions in the miner’s nonunderground coal mine employment 

with those conditions known to exist in 

underground mines to determine 

whether substantial similarity has been 

established. The proposed standard 

reflects the Director’s longstanding 

interpretation of the ‘‘substantially 

similar’’ language, and one that has been 

adopted by the Court of Appeals for the 

Seventh Circuit, the only court that has 

decided the question. Director, OWCP v. 

Midland Coal Co., 855 F.2d 509, 512 

(7th Cir. 1988); see also Freeman United 

Coal Mining Co. v. Summers, 272 F.3d 

473, 479–80 (7th Cir. 2001); Blakley v. 

Amax Coal Co., 54 F.3d 1313, 1319 (7th 

Cir. 1995). After issuance of these 

decisions, the Benefits Review Board 

similarly held, even in cases arising 

outside of the Seventh Circuit’s 

jurisdiction, that an administrative law 

judge should resolve the ‘‘substantially 

similar’’ issue under the standard 

enunciated in Midland Coal. See, e.g., 

Harris v. Cannelton Indus., Inc., 24 BLR 

1–217, 1–223 (2011); Hansbury v. 

Reading Anthracite Co., 2011 WL 

6140714, *2, BRB No. 11–236 BLA 

(Nov. 29, 2011); Prater v. Bevens Branch 

Res., Inc., 2011 WL 4454952, *3, BRB 

Nos. 10–667 BLA; 10–668 BLA (Aug. 26, 

2011). Including this standard in 

§ 718.305 will clarify how the 

presumption may be invoked. 

Chest X-ray Negative for Complicated 

Pneumoconiosis. The second condition 

Section 411(c)(4) sets out for invocation 

is that ‘‘there is a chest roentgenogram 

submitted in connection with [the] 

claim * * * and it is interpreted as 

negative with respect to the 

requirements of paragraph (3) of this 

subsection[.]’’ 30 U.S.C. 921(c)(4). 

‘‘[P]aragraph (3) of this subsection’’ 

refers to Section 411(c)(3) of the Act, 

which provides an irrebuttable 

presumption of total disability or death 

due to pneumoconiosis where there is 

chest x-ray evidence of ‘‘one or more 

large opacities[.]’’ 30 U.S.C. 921(c)(3). 

The condition addressed by Section 

411(c)(3) is commonly referred to as 

‘‘complicated pneumoconiosis.’’ 

Section 411(c)(4)’s reference to a 

negative chest x-ray in the language 

quoted above simply means that Section 

411(c)(4) may be considered as a means 

of establishing entitlement if a claimant 

cannot establish the presence of 

complicated pneumoconiosis through 

chest x-ray evidence and, as a result, is 

unable to invoke the Section 411(c)(3) 

irrebuttable presumption of entitlement. 

See, e.g., Blakley, 54 F.3d at 1319. 

Litigation has disclosed some confusion 

on this point. See, e.g., U.S. Steel Corp. 

v. Gray, 588 F.2d 1022, 1025 (5th Cir. 

1979) (noting that claimant had to rely 

on statutory presumption because x-ray 

evidence was ‘‘negative as to 

pneumoconiosis’’). To prevent such 

confusion in the future, proposed 

§ 718.305(b)(1)(ii) clarifies that the 15- 

year presumption is an alternate method 

for establishing entitlement when a 

claimant is unable to establish 

entitlement under § 718.304 (the 

regulation that implements the Section 

411(c)(3) irrebutable presumption) 

because lacking chest x-ray evidence of 

complicated pneumoconiosis. 

Establishing Total Disability. Current 

§ 718.305(c) provides that the existence 

of a totally disabling respiratory or 

pulmonary impairment must be 

established under the criteria contained 

in § 718.204. Section 718.204 defines 

total disability and describes how 

medical evidence and lay evidence may 

be used to establish the existence of a 

totally disabling respiratory or 

pulmonary impairment. The proposed 

rule retains this requirement with one 

exception. Proposed § 718.305(b)(1)(iii) 

continues to cross-reference § 718.204 as 

the means to establish a totally disabling 

respiratory impairment using medical 

evidence. It specifically excludes, 

however, § 718.204’s provisions 

governing the use of lay testimony 

because those provisions are incomplete 

for purposes of implementing the 

Section 411(c)(4) presumption. Instead, 

provisions governing the use of lay 

testimony are set forth separately in 

proposed §§ 718.305(b)(3) and (b)(4). 

Proposed § 718.305(b)(3) prohibits 

using a spouse’s affidavit or testimony 

by itself to establish that the miner has 

a totally disabling respiratory or 

pulmonary impairment in a living 

miner’s claim. A similar prohibition 

appears in current § 718.305(a) and in 

the statutory presumption as well. Thus, 

the proposed language reflects long 

established —and statutorily 

mandated—principles that were used to 

implement the presumption in claims 

filed prior to January 1, 1982. 

In addition, proposed § 718.305(b)(3) 

prohibits the use, in a living miner’s 

claim, of a miner’s affidavit or testimony 

by itself to establish a totally disabling 

respiratory or pulmonary impairment. 

This language is also in the current 

regulations defining total disability at 

§ 718.204(d)(5) and is equally relevant 

to establishing a totally disabling 

respiratory or pulmonary impairment 

pursuant to § 718.305. 

Current § 718.305(b) addresses the use 

of lay affidavits to establish the 

existence of a totally disabling 

respiratory or pulmonary impairment in 

both miners’ and survivors’ claims 


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involving deceased miners where there 

is no medical or other relevant 

evidence. The current rule is no longer 

accurate because it does not reflect an 

important restriction on the use of lay 

evidence Congress added to the Act in 

1981 and made applicable to all claims 

filed on or after January 1, 1982. Public 

Law 97–119, 202(c), 95 Stat. 1635 

(1981). That restriction limits the use of 

lay testimony in these circumstances to 

that provided by individuals who would 

not be eligible to receive benefits in the 

case. 30 U.S.C. 923(b) (stating that 

‘‘[w]here there is no medical or other 

relevant evidence in the case of a 

deceased miner, such affidavits 

[addressing the miner’s physical 

condition], from persons not eligible for 

benefits in such case * * * shall be 

considered to be sufficient to establish 

that the miner was totally disabled due 

to pneumoconiosis or that his or her 

death was due to pneumoconiosis.’’). 

Current § 718.305(b) was never 

amended to reflect this additional 

restriction because the entire regulation 

ceased to apply to claims filed on or 

after January 1, 1982. See 20 CFR 

718.305(e) (2011). 

Further, while § 718.204(d)(3) 

implements this restriction on lay 

evidence for miners’ claims filed after 

January 1, 1982, § 718.204(d) contains 

no corollary provision for survivors’ 

claims. The reason is simple. Prior to 

the ACA amendments, survivors had to 

establish that the miner’s death was due 

to pneumoconiosis. There was no need 

to regulate lay evidence on the total 

disability and disability causation issues 

in survivors’ claims. The ACA’s 

reinstatement of the 15-year 

presumption now makes such 

regulation necessary. 

Accordingly, proposed § 718.305(b)(4) 

adds language implementing the Act’s 

restrictions on the use of lay evidence 

in deceased miners’ claims where there 

is no medical or other relevant 

evidence. Proposed § 718.305(b)(4) 

states that affidavits (or testimony) from 

individuals who would be entitled to 

benefits, either as a primary beneficiary 

or as an individual entitled to 

augmented benefits, are not sufficient, 

by themselves, to support a finding of 

total disability due to a respiratory or 

pulmonary impairment. This proposed 

language is in § 718.204(d)(3) and is 

equally relevant to establishing the 

existence of a totally disabling 

respiratory or pulmonary impairment 

under § 718.305. 

The Presumptions Invoked 

Current § 718.305(a) provides that 

once invoked, ‘‘there shall be a 

rebuttable presumption that such miner 

is totally disabled due to 

pneumoconiosis, that such miner’s 

death was due to pneumoconiosis, or 

that at the time of death such miner was 

totally disabled by pneumoconiosis.’’ 

These varying presumptions also appear 

in the statutory language, 30 U.S.C. 

921(c)(4). They do not all apply in every 

claim, however. 

Proposed § 718.305(c) clarifies that if 

the presumption is invoked in a miner’s 

claim, the fact presumed is that the 

miner is totally disabled due to 

pneumoconiosis or that he was totally 

disabled due to pneumoconiosis at the 

time of death. This later presumed fact 

would apply when a miner’s claim has 

not been finally adjudicated at the time 

of his or her death. 

If a survivor successfully establishes 

invocation, he or she is entitled only to 

a presumption of death due to 

pneumoconiosis. This result is 

mandated by the 1981 amendments to 

the Act. In those amendments, Congress 

eliminated a survivor’s ability to 

establish entitlement by demonstrating 

that the miner was totally disabled due 

to pneumoconiosis at the time of his 

death. For example, Congress amended 

the Act’s statement of findings and 

declaration of purpose and deleted 

language stating that the survivors of 

miners ‘‘who were totally disabled by 

[pneumoconiosis] at the time of their 

deaths’’ were entitled to benefits, Public 

Law 97–119, 203(a)(4), 95 Stat. 1635 

(1981). 

Similarly, in 1981 Congress added 

language to Section 411(a) of the Act, 

which instructs the Secretary to ‘‘make 

payments of benefits’’ to certain classes 

of claimants. Congress directed the 

payment of benefits to miners totally 

disabled due to pneumoconiosis and to 

survivors on account of death due to 

pneumoconiosis. The section also states 

that benefit payments were to be made 

in cases in which the miner was totally 

disabled at the time of death only in 

claims filed before Jan. 1, 1982. 30 

U.S.C. 921(a), Public Law 97–119, 

203(a)(5), 95 Stat. 1635 (1981). If a 

survivor was not entitled to derivative 

benefits because the miner’s claim was 

filed on or after January 1, 1982, that 

individual had to prove that the miner’s 

death was due to pneumoconiosis in a 

separate survivor’s claim. See 20 CFR 

718.1(a) (2011). Thus, in the 1981 

amendments, Congress eliminated the 

ability of a survivor to establish 

entitlement by demonstrating that the 

miner was totally disabled prior to 

death. Mancia, 130 F.3d at 584 n.6. 

The more recent ACA amendments to 

the Act reversed the 1981 amendments 

only in part. Congress mandated the 

award of survivors’ benefits if the miner 

was entitled to benefits on a claim filed 

during his or her lifetime, i.e., that he 

was totally disabled due to 

pneumoconiosis arising out of coal mine 

employment. Public Law 111–148, 

1556(b), (c), 124 Stat. 119 (2010). If the 

miner was not entitled to benefits, 

however, a survivor’s claim may be 

awarded only if the miner died due to 

pneumoconiosis. Thus, proposed 

§ 718.305(c)(2) makes clear that, upon 

invocation, a survivor is entitled only to 

a presumption that the miner’s death 

was due to pneumoconiosis. 

Rebuttal 

Proposed § 718.305(d) outlines the 

burden of proof on the party opposing 

entitlement. It sets out the specific 

methods of rebuttal in a miner’s claim 

and a survivor’s claim. The proposed 

rebuttal standards are modeled on 

language contained in both the statutory 

presumption itself and current 

§ 718.305(d). These rebuttal standards 

were therefore used in the adjudication 

of claims filed before January 1, 1982. 

Each is explained in detail below. 

In a miner’s claim, invocation results 

in a presumption of total disability due 

to pneumoconiosis. Section 411(c)(4) 

itself provides that the presumption 

may be rebutted by showing that the 

‘‘miner does not, or did not, have 

pneumoconiosis[.]’’ Thus, as in the 

current rule, proposed § 718.305(d)(1)(i) 

allows the party opposing entitlement to 

rebut the presumption by showing that 

the miner does not, or did not, have 

pneumoconiosis. The proposed rule 

further clarifies what that proof burden 

entails by cross-referencing the 

regulatory definition of 

pneumoconiosis. The Act recognizes 

two forms of pneumoconiosis— 

‘‘clinical’’ and ‘‘legal.’’ 30 U.S.C. 902(b); 

see, e.g., Gunderson v. U.S. Sec’y of 

Labor, 601 F.3d 1013, 1018 (10th Cir. 

2010). Current black lung program 

regulations expressly define both forms 

of the disease: (1) clinical 

pneumoconiosis consists of those 

diseases recognized by the medical 

community as pneumoconioses and 

involves a fibrotic reaction of the lung 

tissue to dust deposition from coal mine 

employment; and (2) legal 

pneumoconiosis includes any chronic 

lung disease or impairment arising out 

of coal mine employment. 20 CFR 

718.201(a)(1)–(a)(2) (2011). A disease 

arises out of coal mine employment if it 

is significantly related to, or 

substantially aggravated by, dust 

exposure in coal mine employment. 20 

CFR 718.201(b) (2011). Given this 

definition of pneumoconiosis, the party 

opposing entitlement must demonstrate 

that the miner does not suffer from 


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either clinical or legal pneumoconiosis 

to rebut the presumption. See, e.g., 

Barber v. Director, OWCP, 43 F.3d 899, 

901 (4th Cir. 1995) (holding that party 

opposing entitlement must disprove 

both forms of the disease to establish 

rebuttal of Section 411(c)(4) 

presumption); Consolidation Coal Co. v. 

Hage, 908 F.2d 393, 395–96 (8th Cir. 

1990) (recognizing that party opposing 

entitlement must prove that miner’s 

chronic obstructive lung disease was 

unrelated to coal dust exposure to rebut 

Section 411(c)(4) presumption by 

disproving existence of 

pneumoconiosis); see also Underhill v. 

Peabody Coal Co., 687 F.2d 217, 222–23 

and n.10 (7th Cir. 1982) (holding Part 

727 interim presumption rebutted by 

medical opinion establishing that miner 

did not have clinical pneumoconiosis 

and that his chronic obstructive lung 

disease was not related to coal mine 

employment). To make this requirement 

clear, proposed § 718.305(d)(1)(i) states 

that the party opposing entitlement in a 

miner’s claim must prove that the miner 

does not or did not have 

pneumoconiosis as defined in § 718.201. 

Proposed § 718.305(d)(1)(ii) sets out a 

second, alternate method to rebut the 

presumption in a miner’s claim. Section 

411(c)(4) provides that rebuttal may be 

established by demonstrating that the 

miner’s totally disabling ‘‘respiratory or 

pulmonary impairment did not arise out 

of, or in connection with, employment 

in a coal mine.’’ Proposed 

§ 718.305(d)(1)(ii) implements this 

provision by stating that the party 

opposing entitlement must show that 

the miner’s impairment ‘‘did not arise in 

whole or in part out of dust exposure in 

the miner’s coal mine employment.’’ 

The proposed regulatory rebuttal 

language is taken directly from current 

§ 718.305(d) and therefore was used in 

the adjudication of claims filed before 

January 1, 1982. 

Based on the statutory and regulatory 

language, courts have held that a party 

opposing entitlement must rule out the 

miner’s coal mine employment as a 

contributing cause of the totally 

disabling respiratory or pulmonary 

impairment in order to rebut the 

presumption. Blakely v. Amax Coal Co., 

54 F.3d 1313, 1320 (7th Cir. 1995) 

(employer must prove coal mine 

employment did not contribute to 

disability to rebut § 718.305 

presumption); Bosco v. Twin Pines Coal 

Co., 892 F.2d 1473, 1481 (10th Cir. 

1989) (Section 411(c)(4) presumption is 

established by proving miner is totally 

disabled and rebutted if party opposing 

entitlement ‘‘affirmatively establishes 

the lack of * * * a link with [the 

miner’s] coal mine employment’’); Rose 

v. Clinchfield Coal Co., 614 F.2d 936, 

939 (4th Cir. 1980) (party opposing 

entitlement must rule out connection 

between miner’s disability and his coal 

mine employment to rebut Section 

411(c)(4) presumption); Colley & Colley 

Coal Co. v. Breeding, 59 Fed. Appx. 563, 

567 (4th Cir. Mar. 11, 2003) (rebuttal of 

§ 718.305 presumption requires that 

connection between disability and coal 

mine employment be ruled out). Thus, 

in order to rebut the presumption under 

§ 718.305(d)(1)(ii), the party opposing 

entitlement must prove that there is no 

connection between the miner’s totally 

disabling respiratory or pulmonary 

impairment and his or her dust 

exposure in coal mine employment. 

This conclusion is also supported by 

a line of cases interpreting the rebuttal 

method available pursuant to 20 CFR 

727.203(b)(3) after invocation of the 

interim presumption of entitlement at 

20 CFR 727.203(a) (1999). This 

presumption was applicable to claims 

filed before April 1, 1980 and to claims 

reviewed under Section 435 of the Act. 

20 CFR 718.1(b) (2011). The 

§ 727.203(b)(3) rebuttal provision 

mirrors that of Section 411(c)(4). See 

Carozza v. U.S. Steel Corp., 727 F.2d 74, 

78 (3d Cir. 1984) (noting that 

§ 727.203(b)(3) is consistent with 

Section 411(c)(4)); Defore v. Alabama 

By-Prod., Corp., 12 BLR 1–27, 1–29 

(1988) (holding that § 727.203(b)(3) and 

current § 718.305(d) create identical 

rebuttal standards). Courts have 

interpreted § 727.203(b)(3) as requiring 

the party opposing entitlement to rule 

out any connection between the miner’s 

disability and his coal mine 

employment. See Rosebud Coal Sales v. 

Weigand, 831 F.2d 926, 928–29 (10th 

Cir. 1987) (noting six courts of appeals 

have interpreted § 727.203(b)(3) as 

requiring that ‘‘any relationship 

between the disability and coal [mine] 

employment be ruled out’’); Borgeson v. 

Kaiser Steel Corp., 12 BLR 1–169, 1–173 

(1989) (adopting rule-out standard 

under § 727.203(b)(3)). Thus, this 

presumption, too, could be rebutted by 

a showing that a miner’s coal mine 

employment did not contribute to his 

disability. See Wright v. Island Creek 

Coal Co., 824 F.2d 505, 508–09 (6th Cir. 

1987) (affirming finding of rebuttal 

based on evidence that miner’s 

disability was due solely to heart 

disease). There is no reason to depart 

from this consistent and longstanding 

precedent when interpreting the 

standard for rebuttal under amended 

Section 411(c)(4). Accordingly, 

proposed § 718.305(d)(1)(ii) adopts the 

rule-out standard. 

In the survivor’s context, a claimant 

who establishes the invocation criteria 

receives a presumption that the miner 

died due to pneumoconiosis. See 

proposed § 718.305(c)(2). Thus, 

proposed § 718.305(d)(2) provides that, 

in order to rebut the presumption, the 

party opposing entitlement must prove 

either that the miner did not have 

pneumoconiosis, or that his death did 

not arise in whole or in part out of dust 

exposure in the miner’s coal mine 

employment. Once again, these rebuttal 

methods echo the rebuttal methods 

applied to claims filed before January 1, 

1982. A party may rebut the 

presumption by demonstrating the 

absence of pneumoconiosis in the same 

manner as in a miner’s claim. To 

establish that the miner’s death was not 

due to pneumoconiosis, the party 

opposing entitlement must establish 

that the miner’s death did not arise in 

whole or in part out of dust exposure in 

the miner’s coal mine employment. This 

language imposes the same ‘‘rule out’’ 

standard as is required to rebut the 

presumption of total disability due to 

pneumoconiosis. See Consolidation 

Coal Co. v. Smith, 837 F.2d 321, 323 

(8th Cir. 1988) (interpreting 

§ 727.203(b)(3)). Accordingly, the party 

opposing entitlement establishes 

rebuttal by proving that the miner’s 

death was not caused, even in part, by 

coal mine dust exposure in his coal 

mine employment. See Colvin v. 

Director, OWCP, 838 F.2d 192, 194 (6th 

Cir. 1988) (affirming finding that 

§ 727.203 presumption of death due to 

pneumoconiosis rebutted by evidence 

that miner’s death was due solely to 

lung cancer unrelated to coal mine 

employment). 

Finally, proposed § 718.305(d)(3) 

retains the language found in current 

§ 718.305(d) stating that ‘‘evidence 

demonstrating the existence of a totally 

disabling obstructive respiratory or 

pulmonary disease of unknown origin’’ 

is insufficient to rebut the presumption. 

Section § 718.201(a)(2), part of the 

regulatory definition of 

pneumoconiosis, makes clear that the 

term ‘‘pneumoconiosis’’ includes 

obstructive lung diseases significantly 

related to or substantially aggravated by 

dust exposure in coal mine 

employment. Thus, if the presumption 

is invoked, any obstructive disease from 

which the miner suffers or suffered is 

presumed to be due to coal mine dust 

exposure. A medical opinion stating 

only that the etiology of the miner’s 

disease is unknown is therefore 

insufficient to disprove either the 

existence of pneumoconiosis or a causal 

connection between a miner’s death or 

disability and his coal-mine-dust 

exposure. Proposed § 718.305(c)(3) 


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simply makes this point clear and does 

not impose any additional rebuttal 

requirements on the party opposing 

entitlement. Specifically, it does not 

require that party to identify the specific 

cause of a miner’s lung disease in order 

to establish rebuttal; it is sufficient if the 

party proves, based on credible medical 

evidence, that the miner’s totally 

disabling respiratory or pulmonary 

disease is not related to his coal mine 

employment. See Tanner v. Freeman 

United Coal Co., 10 BLR 1–85, 1–87 

(1987) (agreeing with Director that ‘‘the 

specific etiology of claimant’s totally 

disabling respiratory impairment need 

not be established by the party opposing 

entitlement’’ under current 

§ 718.305(d)). 

20 CFR 718.306 Presumption of 

Entitlement Applicable to Certain Death 

Claims 

The Department proposes to 

discontinue publication of this 

provision because it is obsolete. Current 

§ 718.306 implements a rebuttable 

statutory presumption of entitlement 

available to survivors of miners who 

worked in coal mine employment for 25 

years or more prior to June 30, 1971 and 

died on or before March 1, 1978. 30 

U.S.C. 921(c)(5). The presumption 

applies only to claims filed prior to June 

30, 1982 and thus affects few, if any, 

claims currently in litigation. The 

Secretary therefore proposes to 

discontinue publication of this 

provision. Omission of these criteria in 

future editions of the Code of Federal 

Regulations will not affect the benefit 

entitlement of any survivor who filed a 

claim before June 30, 1982 and is 

currently receiving benefits. Claimants 

who were awarded benefits on such 

claims will continue to receive them. 

Moreover, if any claim filed before June 

30, 1982, results in litigation after the 

effective date of these regulations, the 

claim will continue to be governed by 

applicable criteria as reflected in the 

2011 version of the Code of Federal 

Regulations. See discussion under 

§ 718.2. 

Appendix C to Part 718 Blood Gas 

Tables 

Appendix C contains three tables of 

‘‘qualifying’’ values for arterial-blood 

gas studies, one of the standard medical 

tests administered to miners who apply 

for benefits. A test that produces 

‘‘qualifying’’ values is deemed, in the 

absence of contrary evidence, indicative 

of a totally disabling respiratory or 

pulmonary impairment. The current 

version of Appendix C refers to both 

§§ 718.204 and 718.305 as methods of 

establishing total disability. That 

characterization is accurate with regard 

to § 718.204, which sets forth the 

methods by which total disability may 

be established. But it is misleading with 

regard to § 718.305. Section 718.305 

implements the Section 411(c)(4) 

presumption. To invoke that 

presumption, the claimant is required to 

establish that the miner is or was totally 

disabled due to a respiratory or 

pulmonary impairment. Section 725.305 

does not provide an independent means 

of establishing disability. Instead, in 

both its current and revised versions, 

§ 718.305 expressly states that total 

disability must be established pursuant 

to § 718.204. See discussion under 

§ 718.305. Given that a claimant seeking 

to invoke the § 718.305 presumption 

must establish total disability under 

§ 718.204, there is no basis for 

Appendix C’s characterization of 

§ 718.305 as a separate means of 

establishing total disability. The 

Department has therefore eliminated 

those references in the proposed rule. 

Otherwise, no change has been made to 

Appendix C. 

20 CFR 725.1 Statutory Provisions 

Section 725.1 provides an overview of 

the various statutory enactments that 

comprise the Black Lung Benefits Act. 

The proposed rule adds two statutory 

amendments, clarifies and streamlines 

the rule’s language, and eliminates 

obsolete or duplicative provisions. 

Current § 725.1(a) lists the statutory 

provisions that have amended the 

original statute, Subchapter IV of the 

Federal Coal Mine Health and Safety 

Act of 1969, Public Law 91–173, 83 Stat. 

742 (1969). It also generally describes 

the criteria for entitlement to both 

miners’ and survivors’ benefits. Since 

this regulation was last revised, the Act 

has been amended twice. First, in 2002 

Congress passed the Black Lung 

Consolidation of Administrative 

Responsibility Act (BLCARA), Public 

Law 107–275, 116 Stat. 1925 (2002). 

BLCARA transferred responsibility for 

administering claims under part B of the 

Act (i.e., claims filed before July 1, 1973) 

from the Social Security Administration 

to the Department. Because of the time 

limitation on filing part B claims, the 

group of part B beneficiaries is limited 

and has diminished over time. Thus, 

Congress determined that it was more 

efficient to consolidate administrative 

responsibility for Part B claims with 

those claims administered by the 

Department under part C of the Act (i.e., 

claims filed after December 31, 1973). 

BLCARA also repealed Sections 404, 

414a and 435 of the Act, 30 U.S.C. 904, 

924a and 945. Second, in 2010 Congress 

passed the ACA, which amended the 

Act as described in the background 

section above. 

Proposed § 725.1(a) adds BLCARA 

and the ACA to the list of statutes that 

comprise the Act. The proposed rule 

also streamlines § 725.1(a) by 

eliminating language that describes 

what a miner or survivor must prove to 

establish entitlement to benefits. That 

information is available in other 

provisions in Part 725. Consequently, 

proposed § 725.1(a) refers the reader to 

§ 725.201, which describes who is 

entitled to benefits under the Act. 

Finally, proposed § 725.1(a) substitutes 

the term ‘‘subchapter IV’’ for ‘‘title IV’’ 

in the current provision. This is a 

technical change made throughout 

proposed § 725.1 to conform the 

regulation to the Act’s current 

codification. 

Current § 725.1(b) addresses claims 

administered by the Social Security 

Administration under part B of the 

Act—i.e., claims filed before July 1, 

1973. Proposed § 725.1(b) revises the 

current rule to reflect BLCARA’s 

transfer of responsibility for these 

claims to the Department of Labor. The 

proposed rule also streamlines 

§ 725.1(b) by eliminating language that 

describes the time limits for filing part 

B survivor claims. Given the limited 

scope of this regulation, there is no 

reason to include such information here. 

Current § 725.1(c) addresses claims 

filed under Section 415 of the Act, 30 

U.S.C. 925. This provision governed the 

transition period from part B claims 

(filed before July 1, 1973 and 

administered by the Social Security 

Administration) to part C claims (filed 

after December 31, 1973 and 

administered by the Department). 

Section 415 thus applies only to claims 

filed between July 1, 1973 and 

December 31, 1973. That transition 

period is long expired and few, if any, 

claims governed by Section 415 remain 

in litigation. Thus, the Department 

proposes to discontinue publication of 

current § 725.1(c) because it is obsolete. 

Current § 725.1(d) addresses claims 

filed under part C of the Act (i.e., filed 

after December 31, 1973), and 

administered by the Department of 

Labor. The Department proposes to 

redesignate this provision as paragraph 

(c) and edit it for clarity. The third and 

fourth sentences require revision to 

better inform the reader of their 

intended meaning. The third sentence 

states that part C claims are 

administered by the Department ‘‘and 

paid by a coal mine operator’’ while the 

fourth sentence states that the Black 

Lung Disability Trust Fund will pay 

benefits in claims where the miner’s 

coal-mine employment ended before 


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1970, or where an operator liable for the 

payment of benefits cannot be 

identified. 20 CFR 725.1(d) (2011); 26 

U.S.C. 9501(d)(1)(B). Proposed 

§ 725.1(c) combines and clarifies these 

statements in a new sentence. Proposed 

§ 725.1(c) also revises the current rule’s 

reference to the ‘‘Longshoremen’s and 

Harbor Workers’ Compensation Act’’ to 

reflect that statute’s current title, the 

‘‘Longshore and Harbor Workers’ 

Compensation Act.’’ The title was 

changed when Congress amended this 

statute in 1984. See Longshore and 

Harbor Workers’ Compensation Act 

Amendments of 1984, Public Law 98– 

426, 27(d)(1), 98 Stat. 1639 (1984). 

Current § 725.1(e) addresses former 

Section 435 of the Act. Section 435 

required the Department to review, 

under the criteria set forth in 20 CFR 

Part 727, all part C claims that were 

denied on or before March 1, 1978 or 

that were pending as of that date. It also 

required the Department to review 

under the Part 727 criteria certain part 

B claims. Section 435 was repealed in 

2002 by the BLCARA. Public Law 107– 

275, 2(c)(1), 116 Stat. 1925 (2002). Few, 

if any, claims governed by Section 435 

remain in litigation. Moreover, the 

Department discontinued annual 

publication of the 20 CFR Part 727 

criteria in the Code of Federal 

Regulations in 2000. See 65 FR 79920, 

80029 (Dec. 20, 2000); 20 CFR 725.4(d) 

(2011). Thus, the Department proposes 

to discontinue publication of current 

§ 725.1(e). 

Current § 725.1(f) describes changes 

made by the Black Lung Benefits Reform 

Act of 1977. The Department proposes 

to redesignate this provision as 

§ 725.1(d) and make three revisions to 

promote clarity and eliminate outdated 

information. First, the opening clause of 

current § 725.1(f) refers to changes 

outlined in current §§ 725.1(a)–(e). This 

statement is no longer accurate given 

the revisions proposed to those 

subsections. Thus, the proposed rule 

eliminates this clause. Second, 

§ 725.1(f)(3) states that the 1977 Reform 

Act added ‘‘[a] provision which limits 

the denial of a claim solely on the basis 

of employment in a coal mine[.]’’ While 

technically accurate, this broad 

statement could be misleading. It refers 

to Section 402(f)(1)(B) of the Act, 30 

U.S.C. 902(f)(1)(B), which provides that 

a living miner’s continued employment 

in a mine, or a deceased miner’s 

employment in a mine at time of death, 

is not conclusive proof that the miner is 

not or was not totally disabled. 

Proposed § 725.1(d)(5) replaces the 

quoted sentence with language that 

focuses on the relationship between a 

miner’s continued employment and a 

finding of total disability. 

Third, current § 725.1(f)(5) states that 

the 1977 Reform Act introduced a 

presumption of entitlement for certain 

survivors. Section 411(c)(5) of the Act, 

30 U.S.C. 921(c)(5), provided a 

rebuttable statutory presumption of 

entitlement to survivors of miners who 

worked in coal mine employment for 25 

years or more prior to June 30, 1971 and 

died on or before March 1, 1978. The 

Black Lung Benefits Amendments of 

1981 later limited application of this 

presumption to claims filed prior to 

June 30, 1982. Public Law 97–119, 

202(b)(2), 95 Stat. 1635 (1981). Few, if 

any, claims governed by this 

presumption remain in litigation. 

Moreover, the proposed rules 

discontinue publication of § 718.306, 

the presumption’s implementing 

regulation. See discussion under 

§ 718.306. Thus, the Department 

proposes to discontinue publication of 

current § 725.1(f)(5) because it is 

obsolete. 

Current § 725.1(g) addresses the Black 

Lung Benefits Revenue Act of 1977. The 

proposed rule redesignates this 

provision as § 725.1(e) and omits the 

current rule’s references to Sections 415 

and 435 of the Act. As previously 

discussed, Section 415 of the Act 

applies only to claims filed between 

July 1, 1973 and December 31, 1973, 

and the now-repealed Section 435 

required review of claims originally 

filed prior to March 1, 1978. There is 

therefore no reason to continue to 

publish references to these provisions in 

the Code of Federal Regulations. 

Current § 725.1(h) addresses changes 

made by the Black Lung Benefits 

Amendments of 1981. The Department 

proposes to redesignate this provision as 

725.1(f), edit it for clarity, eliminate 

outmoded provisions, and update it to 

reflect the ACA amendments. First, the 

opening clause of current § 725.1(h) 

refers to changes outlined in current 

§ 725.1(a). This statement is no longer 

accurate given the revisions proposed to 

§ 725.1(a). Thus, the proposed rule 

eliminates this clause. 

Second, current § 725.1(h)(2) states 

that the 1981 Amendments 

prospectively eliminated a presumption 

of entitlement for certain survivors. 

Section 411(c)(2) of the Act, 30 U.S.C. 

921(c)(2), provided a rebuttable 

statutory presumption that the miner’s 

death was due to pneumoconiosis if the 

miner worked for 10 years or more in 

coal mine employment and died due to 

a respirable disease. The 1981 

Amendments limited application of this 

presumption to claims filed prior to 

January 1, 1982. Public Law 97–119, 

202(b)(1), 95 Stat. 1635 (1981). Few, if 

any, claims governed by this 

presumption remain in litigation. 

Moreover, the proposed rules 

discontinue publication of 20 CFR 

718.303, the presumption’s 

implementing regulation. See 

discussion under § 718.303. Thus, the 

Department proposes to discontinue 

publication of current § 725.1(h)(2) 

because it is obsolete. 

Third, current §§ 725.1(h)(3) and 

(h)(5) could be misleading in light of the 

ACA amendments. Current § 725.1(h)(3) 

states that the 1981 Amendments 

limited the applicability of the Section 

411(c)(4) 15-year presumption of 

disability or death due to 

pneumoconiosis to claims filed before 

January 1, 1982. Similarly, current 

§ 725.1(h)(5) states that the 1981 

Amendments limited survivors’ 

derivative entitlement under Section 

422(l), to those cases where the miner 

was found entitled to benefits on a 

claim filed prior to January 1, 1982. As 

discussed above, the ACA amendments 

revived both of these provisions for 

claims filed on or after January 1, 2005, 

that are pending on or after March 23, 

2010. Proposed §§ 725.1(f)(2) and (f)(4) 

clarify this change and provide a crossreference to § 725.1(i), which, as 

proposed, discusses the ACA 

amendments. 

Current § 725.1(i) addresses the Black 

Lung Benefits Revenue Act of 1981. The 

proposed rule redesignates this 

provision as § 725.1(g) and omits the 

current rule’s second sentence, which 

refers to claims paid by the Department 

pursuant to Section 435 of the Act. As 

discussed above, Section 435 required 

the Department to review certain part B 

and part C claims originally filed prior 

to March 1, 1978. Few, if any, such 

claims remain in litigation, and Section 

435 was repealed by the BLCARA. Thus, 

the Department proposes to discontinue 

publication of this sentence because it is 

obsolete 

Proposed § 725.1(h) is a new 

paragraph that addresses the changes 

made by the BLCARA, which 

transferred administrative responsibility 

for claims under part B of the Act from 

the Social Security Administration to 

the Department of Labor, effective 

January 31, 2003. BLCARA also 

repealed Sections 404, 414a and 435 of 

the Act, 30 U.S.C. 904, 924a and 945. 

These sections applied only in the case 

of claims originally filed prior to March 

1, 1978. With the transfer of 

responsibility for part B claims to the 

Department and with the passage of 

time, these provisions had all become 

obsolete. Proposed § 725.1(h) reflects 

their repeal. 


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Similarly, proposed § 725.1(i) is a new 

paragraph that addresses the changes 

made by the ACA. As summarized in 

the background section above, the ACA 

reinstated the Section 411(c)(4) 15-year 

presumption and the Section 422(l) 

derivative-survivors’-entitlement 

provision for claims filed after January 

1, 2005, that are pending on or after 

March 23, 2010. Proposed § 725.1(i) 

reflects these changes. 

Current § 725.1(j) addresses the 

incorporation into the Act of certain 

provisions of the Longshore and Harbor 

Workers’ Compensation Act. Proposed 

§ 725.1(j) changes all references to the 

‘‘Longshoremen’s and Harbor Workers’ 

Compensation Act’’ to the ‘‘Longshore 

and Harbor Workers’ Compensation 

Act,’’ the current title of that statute. For 

the reasons discussed above, proposed 

§ 725.1(j) omits the current rule’s 

reference to Sections 415 and 435 of the 

Act. Proposed § 725.1(j) also omits the 

current rule’s reference to the 20 CFR 

part 727 regulations. Because the Part 

727 regulations apply to an increasingly 

smaller number of claims, they are no 

longer annually published. See 20 CFR 

725.4(d) (2011). Consequently, there is 

no need to continue to publish a 

reference to them in § 725.1(j). In 

addition, one grammatical change is 

proposed to clarify the phrase ‘‘time 

definite of traumatic injury or death.’’ 

Finally, current § 725.1(k) addresses 

the incorporation into the Act of certain 

provisions of the Social Security Act. 

Other than revising this subsection’s 

reference to the title of the Longshore 

and Harbor Workers’ Compensation Act, 

the Department does not propose any 

changes to this subsection. 

20 CFR 725.2 Purpose and 

Applicability of This Part 

Section 725.2 addresses the purpose 

and applicability of the Part 725 

regulations. Proposed § 725.2(b) changes 

the effective date for Part 725 from 

August 18, 1978 to June 30, 1982. This 

revision reflects the Department’s 

proposal to discontinue publication of 

§ 718.306, which provides a survivor 

with a presumption of entitlement in 

certain circumstances, but only if the 

survivor filed his or her claim before 

June 30, 1982. See discussion under 

§ 718.306. It further reflects the 

Department’s proposal to cease 

publication of other statutory 

presumptions and criteria for 

establishing entitlement available only 

to claims filed before January 1, 1982. 

See discussion under § 718.2; see also 

§§ 725.1; 725.201; 725.212; 725.218; 

725.222; and 725.309. Few, if any, of 

these claims filed (at the latest) before 

June 30, 1982 remain in litigation and 

therefore continued publication of these 

provisions in the Code of Federal 

Regulations is unnecessary. Omission of 

these criteria in future editions of the 

Code of Federal Regulations will not 

affect the benefit entitlement of any 

miner or survivor who filed a claim 

before June 30, 1982 and is currently 

receiving benefits. Claimants who were 

awarded benefits on such claims will 

continue to receive them. Moreover, if 

any claim filed before June 30, 1982 

results in litigation after the effective 

date of these regulations, the claim will 

continue to be governed by the criteria 

in the 2011 version of the Code of 

Federal Regulations. Thus, proposed 

§ 725.2(b) states that the 2011 version of 

Part 725 would apply to the 

adjudication of any claim filed prior to 

June 30, 1982, filling the gap left by the 

change in Part 725’s effective date. 

Finally, proposed §§ 725.2(a) and (b) 

substitute the term ‘‘subchapter IV’’ for 

‘‘title IV’’ in the current provisions. This 

is a technical change made to conform 

the regulations to the Act’s current 

codification. The rest of the rule 

remains unchanged. 

20 CFR 725.101(a) Definition and Use 

of Terms 

Section 725.101 defines various terms 

used in the Part 725 regulations. Current 

§ 725.101(a)(1) defines the term ‘‘the 

Act’’ and current § 725.101(a)(2) defines 

the terms ‘‘the Longshoremen’s Act’’ 

and ‘‘LHWCA.’’ These subsections, 

respectively, address the Black Lung 

Benefits Act, 30 U.S.C. 901–44, and the 

Longshore and Harbor Workers’ 

Compensation Act, 33 U.S.C. 901–50. 

The Department proposes to 

streamline the definition of the term 

‘‘the Act’’ contained in current 

§ 725.101(a)(1). The current definition 

lists the several statutes that have 

amended the Act over the years and 

thus unnecessarily duplicates 

information contained in § 725.1(a). 

Proposed § 725.101(a)(1) defines the Act 

simply by reference to its popular title 

and statutory citation. Further, current 

§ 725.101(a)(2) refers to the Longshore 

Act as the ‘‘Longshoremen’s and Harbor 

Workers’ Compensation Act.’’ Proposed 

§ 725.101(a)(2) changes this reference to 

the Longshore and Harbor Workers’ 

Compensation Act, the current title of 

that statute. The rest of the rule remains 

unchanged. 

20 CFR 725.201 Who Is Entitled to 

Benefits; Contents of This Subpart 

Current § 725.201 lists the categories 

of individuals who are potentially 

entitled to benefits under the Act and 

briefly describes the circumstances 

under which each may be found 

entitled. It also briefly describes the 

contents of Part 725. The proposed rule 

revises current § 725.201 to remove 

provisions that are either obsolete or are 

duplicated in other regulations, and to 

edit it for clarity. 

Proposed § 725.201(a) omits the 

reference in the current rule to Section 

415 of the Act. That section governed 

claims filed from July 1, 1973 through 

December 31, 1973, the transition 

period between the end of SSA’s 

administration of the program and the 

beginning of the Department’s. See 

discussion under § 725.1(c). Because 

Section 415 governs very few remaining 

claims, and because there is no longer 

any practical distinction between claims 

filed under Section 415 and Part C, the 

proposed rule deletes this reference. 

Current §§ 725.201(a)(1), (a)(2) and 

(a)(4) state that miners, surviving 

spouses, children, parents and siblings 

may be entitled to benefits under the 

Act and identifies some of the 

conditions necessary for such 

individuals to establish entitlement. The 

conditions for establishing entitlement 

to benefits for each of these categories 

of claimants are also described in 

§§ 725.202 (miners), 725.212 (surviving 

spouses and surviving divorced 

spouses), 725.218 (surviving children), 

and 725.222 (surviving parents, brothers 

and sisters). There is no reason to 

duplicate this information in a separate 

regulation. Thus, proposed 

§§ 725.201(a)(1)–(4) simply lists each of 

the four categories of claimants and 

provides a cross-reference to the 

regulation that describes the conditions 

of entitlement for that category. For 

clarity, surviving spouses and surviving 

children, included in a single paragraph 

in current § 725.201, are placed in 

separate provisions in proposed 

§§ 725.201(a)(2) and (3). Current 

§ 725.201(a)(3), which states that 

benefits are payable to the child of a 

miner’s surviving spouse under certain 

circumstances, is retained and 

redesignated as § 725.201(a)(5). No 

cross-reference is included because 

there is no specific regulation that 

identifies the conditions of entitlement 

for this category of claimant. 

The Department also proposes to 

discontinue publication of current 

§ 725.201(b), which describes a 

rebuttable statutory presumption of 

entitlement to survivors of miners who 

worked in coal mine employment for 25 

years or more prior to June 30, 1971 and 

died on or before March 1, 1978. 30 

U.S.C. 921(c)(5), implemented by 20 

CFR 718.306. This change reflects the 

Department’s proposal to discontinue 

publication of § 718.306 because it is 

obsolete: It applies only to claims filed 


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before June 30, 1982. See discussion 

under § 718.306. There is similarly no 

reason to continue to publish any 

reference to this presumption. Omission 

of references to the presumption in 

future editions of the Code of Federal 

Regulations will not affect the benefit 

entitlement of any survivor who filed a 

claim before June 30, 1982 and is 

currently receiving benefits. Claimants 

who were awarded benefits on such 

claims will continue to receive them. 

Moreover, if any claim filed before June 

30, 1982, results in litigation after the 

effective date of these regulations, the 

claim will continue to be governed by 

applicable criteria as reflected in the 

2011 version of the Code of Federal 

Regulations. See discussion under 

§§ 718.2; 725.2. 

Current §§ 725.201(c) and (d) are 

retained and redesignated as 

§§ 725.201(b) and (c), respectively. 

20 CFR 725.212 Conditions of 

Entitlement; Surviving Spouse or 

Surviving Divorced Spouse 

Section 725.212 prescribes the 

conditions required for a surviving 

spouse or a surviving divorced spouse 

of a deceased miner to establish 

entitlement to benefits. The proposed 

rule revises § 725.212 to omit certain 

conditions of entitlement applicable 

only to claims filed prior to June 30, 

1982 and to add new conditions of 

entitlement made applicable to certain 

claims by the ACA amendments. Other 

applicable conditions of entitlement 

remain unchanged. 

Current §§ 725.212(a)(3)(i) and (ii) set 

forth conditions of entitlement for 

surviving spouses and divorced spouses 

which relate to the miner and which 

vary depending on the date of claim 

filing. These provisions state that the 

survivor will be entitled to benefits if 

the miner was either receiving benefits 

as result of a claim filed prior to January 

1, 1982, or is determined as a result of 

a claim filed prior to January 1, 1982 to 

have been totally disabled due to 

pneumoconiosis at the time of death or 

to have died due to pneumoconiosis. 

Current § 725.212(a)(3)(ii) also provides 

that, with one exception, a survivor 

must establish that the miner’s death 

was due to pneumoconiosis to establish 

entitlement to benefits if the miner’s 

claim was not filed before January 1, 

1982. The exception is for survivors 

whose claims are filed prior to June 30, 

1982. Those survivors may establish 

entitlement pursuant to Section 

411(c)(5) of the Act, which provides a 

rebuttable presumption of entitlement 

available to survivors of miners who 

worked in coal mine employment for 25 

years or more prior to June 30, 1971 and 

died on or before March 1, 1978. 

The proposed rule deletes those 

portions of current §§ 725.212(a)(3)(i) 

and (ii) that pertain solely to claims 

filed prior to June 30, 1982. Few, if any, 

such claims remain in litigation and the 

Department therefore proposes to 

discontinue annual publication of these 

provisions. The criteria in future 

editions of the Code of Federal 

Regulations will not affect the benefit 

entitlement of any survivor who filed a 

claim before June 30, 1982 and is 

currently receiving benefits. Claimants 

who were awarded benefits on such 

claims will continue to receive them. 

Moreover, if any claim filed before June 

30, 1982, results in litigation after the 

effective date of these regulations, the 

claim will continue to be governed by 

applicable criteria as reflected in the 

2011 version of the Code of Federal 

Regulations. See discussion under 

§ 725.2. 

Proposed § 725.212(a)(3)(i) retains one 

condition of entitlement from current 

§ 725.212(a)(3)(ii): it allows a survivor to 

establish entitlement to benefits by 

proving that the miner died due to 

pneumoconiosis. Because the ACA 

amendments restored Section 422(l)’s 

derivative-entitlement provision, 

proving death due to pneumoconiosis is 

no longer an absolute requirement for 

all survivors. Thus, proposed 

§ 725.212(a)(3)(ii) sets forth an 

alternative condition of entitlement to 

implement the ACA amendment. It 

states that if the miner filed a lifetime 

claim that results or resulted in a final 

benefits award, a survivor whose claim 

meets ACA Section 1556(c)’s effectivedate requirements (i.e. filed after 

January 1, 2005 and pending on or after 

March 23, 2010) will be entitled to 

benefits, assuming the survivor meets 

all other applicable conditions of 

entitlement. See West Virginia CWP 

Fund v. Stacy, ___ F.3d ___, 2011 WL 

6062116, *8 (4th Cir. Dec. 7, 2011); 

Mathews v. Pocahontas Coal Co., 24 

BLR 1–193, 1–196 (2010). The rest of the 

rule remains unchanged. 

20 CFR 725.218 Conditions of 

Entitlement; Child 

Section 725.218 prescribes the 

conditions required for a surviving child 

of a deceased miner to establish 

entitlement to benefits. Current 

§§ 725.218(a)(1) and (2) provide certain 

conditions of entitlement for a surviving 

child that apply only to claims filed 

before June 30, 1982. These are identical 

to the conditions of entitlement 

applicable to surviving spouses and 

divorced spouses contained in current 

§§ 725.212(a)(3)(i) and (a)(3)(ii). For the 

reasons expressed in the discussion 

accompanying proposed § 725.212, the 

proposed rule revises these provisions 

and adds a new condition of entitlement 

made applicable by the ACA 

amendments. Thus, proposed 

§§ 725.218(a)(1) and (a)(2) state that a 

surviving child may establish 

entitlement to benefits if the miner died 

due to pneumoconiosis or if the miner 

filed a claim for benefits that is or was 

awarded and the surviving child filed a 

claim after January 1, 2005 that was 

pending on or after the ACA’s March 23, 

2010 enactment date. The rest of the 

rule remains unchanged. 

20 CFR 725.222 Conditions of 

Entitlement; Parent, Brother or Sister 

Section 725.222 describes the 

conditions required for a surviving 

parent, brother or sister of a deceased 

miner to establish entitlement to 

benefits. Current §§ 725.222(a)(5)(i) and 

(a)(5)(ii) provide certain conditions of 

entitlement for a surviving parent, 

brother or sister that apply only to 

claims filed before June 30, 1982. These 

are identical to the conditions of 

entitlement applicable to surviving 

spouses and divorced spouses contained 

in current §§ 725.212(a)(3)(i) and 

(a)(3)(ii). For the reasons expressed in 

the discussion accompanying proposed 

§ 725.212, the proposed rule omits 

current §§ 725.222(a)(5)(i) and (a)(5)(ii), 

and adds the same new condition of 

entitlement as in proposed 

§ 725.212(a)(3)(ii) to implement the 

ACA amendments. Thus, proposed 

§§ 725.222(a)(5)(i) and (a)(5)(ii) state 

that a surviving parent, brother or sister 

may establish entitlement to benefits if 

the miner died due to pneumoconiosis 

or if the miner filed a claim for benefits 

that is or was awarded and the surviving 

parent, brother or sister filed a claim 

after January 1, 2005 that was pending 

on or after the ACA’s March 23, 2010 

enactment date. The rest of the rule 

remains unchanged. 

20 CFR 725.309 Additional Claims; 

Effect of a Prior Denial of Benefits 

Section 725.309 addresses both the 

filing of additional claims for benefits 

and the effect of a prior denial. The 

proposed rule omits obsolete 

information and revises the current rule 

to implement the ACA amendment to 

Section 422(l), which restored 

derivative entitlement for certain 

survivors. 

Current § 725.309(a) states that miners 

who were found entitled to benefits 

under part B of the Act may file claims 

for medical benefits under part C of the 

Act. The Department proposes to cease 

the annual publication of this provision 


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19468 Federal Register / Vol. 77, No. 62 / Friday, March 30, 2012 / Proposed Rules 

because it no longer applies to newly 

filed claims. The provision advises 

claimants who established their 

entitlement to benefits by filing claims 

with the Social Security Administration 

under part B of the Act, i.e., before 

December 31, 1973, of their right to file 

a part C claim for medical benefits with 

the Department of Labor. Congress 

granted this right to part B beneficiaries 

in Section 11 of the Black Lung Benefits 

Reform Act of 1977, Public Law 95–239, 

92 Stat. 95 (1978), because unlike part 

C of the Act, part B did not pay for 

medical services and supplies necessary 

to treat totally disabling 

pneumoconiosis. 33 U.S.C. 907, as 

incorporated by 30 U.S.C. 932(a). 

Section 11 directed the Secretary of 

Health, Education and Welfare to notify 

each miner receiving benefits under part 

B of his possible eligibility for medical 

benefits and to allow a period for filing 

such claims which ‘‘shall not terminate 

before six months after such notification 

is made.’’ The Black Lung Benefits 

Reform Act became law on March 1, 

1978. The time period for filing the 

requisite claims was extended 

repeatedly, with the most recent 

extension going to December 31,1980. 

45 FR 44264 (July 1, 1980). These 

extensions were granted because the 

Department wanted to ensure that no 

otherwise eligible miner was deprived 

of the right to seek medical benefits. 

This filing period has long since passed, 

however, and there have been no new 

part B applications since the end of 

1973. Thus, there is no longer any need 

to continue to publish a regulatory 

provision notifying part B beneficiaries 

of their right to file a part C claim for 

medical benefits, and the proposed rule 

omits this information. 

Similarly, the Department proposes to 

cease the annual publication of current 

§ 725.309(e) because it is obsolete. This 

provision allows certain claimants to 

request review under 20 CFR part 727. 

Because few, if any, claims subject to 

Part 727 review remain in litigation, the 

Department discontinued annual 

publication of the 20 CFR part 727 

criteria in the Code of Federal 

Regulations in 2000. 65 FR 79920, 

80029 (Dec. 20, 2000). Thus, there is 

also no reason to continue annual 

publication of current § 725.309(e). The 

proposed rule omits this information. 

Section 725.309(d) outlines the 

requirements for the adjudication of a 

claim filed by a miner or a survivor after 

a prior claim has been denied and the 

one-year period for requesting 

modification has expired. See 20 CFR 

725.310 (2010) (implementing 

modification provision). The proposed 

rule revises this provision to clarify how 

the ACA amendment restoring Section 

422(l) derivative-survivors’ benefits, 

discussed above, applies when a 

survivor files a subsequent claim. 

Current § 725.309(d) provides that a 

claimant who files a subsequent claim 

must demonstrate that a change has 

occurred in one of the applicable 

conditions of entitlement since the date 

upon which the order denying the prior 

claim became final. Failure to establish 

such a change will result in the denial 

of a subsequent claim. The purpose of 

this provision is to prevent the 

relitigation of a prior denied claim, 

thereby implementing the legal doctrine 

known as res judicata or claim 

preclusion. This doctrine mandates that 

a denied claim must be considered final 

and cannot be disturbed in any later 

proceedings. See 65 FR 79920, 79968 

(Dec. 20, 2000) (explaining that prior 

final denials are accepted as correct 

under § 725.309). 

This doctrine’s impact is easily seen 

in the case of a subsequent claim filed 

by a survivor before the ACA’s 

enactment. If the initial survivor’s claim 

was denied because the surviving 

spouse failed to prove that the miner’s 

death was due to pneumoconiosis, any 

subsequent survivor’s claim would also 

be denied because it was impossible to 

prove with ‘‘new evidence submitted in 

connection with the subsequent claim’’ 

a change in a condition of entitlement 

that ‘‘relate[s] to the miner’s physical 

condition,’’ i.e., the cause of the miner’s 

death could not change and had been 

finally adjudicated in the earlier 

survivor’s claim. 20 CFR 725.309(d)(3) 

(2011). 

However, ‘‘claim preclusion bars only 

an attempt to relitigate a cause of action 

that was previously resolved; it has no 

effect on a cause of action which did not 

exist at the time of the initial 

adjudication.’’ 62 FR 3338, 3352 (Jan. 

22, 1997) (citing Lawlor v. Nat’l Screen 

Serv. Corp., 349 U.S. 322, 328 (1955)). 

By restoring Section 422(l), the ACA 

created, for certain survivors, a new 

cause of action by establishing a new 

method of demonstrating entitlement to 

benefits. Aside from the filing date and 

pendency requirements (i.e., a claim 

filed after January 1, 2005, that was 

pending on or after March 23, 2010), the 

ACA imposes no constraints on Section 

422(l)’s application. Consequently, the 

Department has concluded that Section 

422(l) applies to all survivors’ claims 

meeting the effective-date requirements. 

Amended Section 422(l) therefore 

fundamentally altered the legal 

landscape for subsequent survivors’ 

claims and requires revision to current 

§ 725.309(d). See Stacy v. Olga Coal Co., 

24 BLR 1–207, 1–211–12 (2010), aff’d 

sub nom West Virginia CWP Fund v. 

Stacy, lll F.3d lll, 2011 WL 

6062116 (4th Cir. Dec. 7, 2011) (agreeing 

with Director that amended Section 

422(l) creates new method of 

establishing benefits entitlement). 

Amended Section 422(l) requires the 

survivor to demonstrate only that the 

miner filed a claim that was awarded 

because he or she was totally disabled 

due to pneumoconiosis. Thus, survivors 

whose subsequent claims meet the 

requirements of amended Section 422(l) 

do not have to establish a change in a 

condition of entitlement that relates to 

the miner’s physical condition. By 

restoring Section 422(l), Congress has 

created a new form of survivor 

entitlement that is not based on whether 

the miner died due to pneumoconiosis 

and therefore does not implicate res 

judicata or claim preclusion principles. 

The proposed rule therefore adds a new 

paragraph, § 725.309(d)(1), to clarify 

that a survivor need not establish a 

change in a condition of entitlement if 

the subsequent claim meets the 

requirements for entitlement under 

amended Section 422(l). But the 

proposed rule also states that this 

exception is limited: It applies only if 

the survivor’s prior claim was finally 

denied prior to March 23, 2010, i.e., 

before the ACA was enacted. Once a 

survivor files a claim subject to the ACA 

and that claim is denied, any 

subsequent claim the survivor files is 

subject to the usual rules of claim 

preclusion set forth in proposed 

§ 725.309(c) because the subsequent 

claim asserts the same cause of action as 

the prior denied claim. The remaining 

paragraphs included within current 

§ 725.309(d) are redesignated as 

§§ 725.309(d)(2)–(d)(6), respectively. 

Although amended Section 422(l) 

applies to subsequent survivor claims, 

nothing in the ACA authorizes reopening of survivors’ claims that have 

already been denied and for which all 

rights to appeal or reconsideration have 

terminated. Consequently, in the case of 

a subsequent claim governed by 

amended Section 422(l), the prior denial 

remains in effect. Current 

§ 725.309(d)(5), which prohibits the 

payment of benefits ‘‘for any period 

prior to the date upon which the order 

denying the prior claim became final,’’ 

is not altered and applies in the case of 

subsequent survivors’ claims awarded 

under amended Section 422(l). 

The remainder of current 

§ 725.309(d), as well as current 

§§ 725.309(b), (c), and (f), have been 

retained in the proposed rule and 

redesignated as §§ 725.309(a) through 

(d). 


tkelley on DSK3SPTVN1PROD with PROPOSALS2
Federal Register / Vol. 77, No. 62 / Friday, March 30, 2012 / Proposed Rules 19469 

20 CFR 725.418 Proposed Decision 

and Order 

Section 725.418 governs issuance of 

proposed decisions and orders by the 

district director, the Department of 

Labor official who is the first level 

adjudicator for all black lung claims. To 

ensure that survivors entitled to 

derivative benefits under ACA-amended 

Section 422(l) begin to receive benefits 

as soon as possible after filing a claim, 

the proposed rule adds a new 

subsection, § 725.418(a)(3), that 

provides an expedited procedure for 

issuance of proposed decisions and 

orders when Section 422(l) applies. The 

proposed rule also ensures that coal 

mine operators will be afforded a 

meaningful opportunity to challenge 

their liability for benefits in such 

claims. 

Under the regulatory scheme in effect 

since 2001, a proposed decision and 

order constitutes the district director’s 

only determination of the claimant’s 

entitlement to benefits. See 65 FR 

79920, 79997 (Dec. 20, 2000). Thus, a 

survivor-claimant cannot begin to 

receive benefits until after a proposed 

decision and order awarding benefits is 

issued in the survivor’s claim. For 

survivors entitled to derivative benefits 

under Section 422(l), this causes a 

disruption in benefit payments because 

the miner’s benefits cease the month 

before the month in which the miner 

dies. 20 CFR 725.203(b)(1) (2011). 

In the normal course, the district 

director issues a proposed decision and 

order after the responsible coal mine 

operator has been notified of its 

potential liability for a benefits claim 

and after the parties have had the 

opportunity to develop medical 

evidence and evidence addressing the 

operator’s liability. See 20 CFR 725.407; 

725.408; 725.410 (2011). These 

procedural steps take time to complete. 

For example, the regulations provide an 

operator notified of a claim 90 days in 

which to submit evidence regarding its 

liability. 20 CFR 725.408(b)(1) (2011). 

After that period, each party is given 60 

days for evidentiary development, and 

an additional 30 days to submit 

evidence in response to the other party’s 

evidence. 20 CFR 725.410(b) (2011). 

These time periods can be, and often 

are, enlarged at a party’s request. 20 CFR 

725.423 (2011). 

Although necessary in general, these 

standard adjudication procedures 

frustrate the Department’s goal of 

prompt payment of Section 422(l) 

claims. The procedures are also 

unnecessary for such claims. Because 

the miner’s physical condition will not 

be at issue, no medical evidence need be 

developed. Nor is there any compelling 

need to notify the operator of its 

potential liability or allow it to develop 

liability evidence before the proposed 

decision and order is issued. The 

operator will have received notification 

of its liability in the miner’s claim, and 

provided a chance to challenge its 

liability under the same criteria 

applicable in the survivor’s claim. See 

generally 20 CFR 725.408–725.419; 

725.494 (2011). It would also have had 

the right to a formal hearing before an 

administrative law judge and appellate 

review of the judge’s decision. 20 CFR 

725.450; 725.481–725.482 (2011). 

Similar procedures would have been 

available to the operator under the 

regulatory scheme in effect prior to 

2001. See 20 CFR 725.412–725.415; 

725.450; 725.481–725.482 (2000). There 

is simply no need to delay issuance of 

the proposed decision and order in a 

claim governed by amended Section 

422(l). 

At the same time, an operator may, in 

rare instances, have a legitimate reason 

for challenging its liability in a Section 

422(l) claim. Proposed § 725.418(a)(3) 

allows an operator to do so by filing a 

request for revision under the 

procedures set forth in current 

§§ 725.419(a) and (b) within 30 days 

after the proposed decision and order is 

issued. In such cases, the district 

director will vacate the proposed 

decision and order and allow all parties, 

including the claimant and the Director, 

30 days to submit evidence pertaining to 

the operator’s liability. This may 

include evidence pertaining to the 

named operator’s status as a potentially 

liable operator or evidence 

demonstrating that another coal mine 

operator is liable for the claim. See 20 

CFR 725.494; 725.495 (2011). The 

period may also be extended for good 

cause. See 20 CFR 725.423 (2011). At 

the end of the 30-day (or extended) 

period, the district director will evaluate 

any liability evidence submitted and 

enter a new proposed decision and 

order adjudicating the liability question 

and awarding the survivor benefits, as 

appropriate. 

This procedure balances the 

Department’s goal of reducing the time 

that elapses between when an entitledminer’s benefits cease and when a 

Section 422(l) survivor’s benefits begin 

with the need to protect coal mine 

operators’ due process rights. The 30- 

day period for submitting liability 

evidence allows the operator sufficient 

time to defend its interests, given that 

the operator will have had the 

opportunity to address the liability issue 

in the miner’s claim. At the same time, 

this relatively brief period limits the 

potential delay in benefit payments to 

the survivor resulting from the 

operator’s liability challenge. 

The Department notes that current 

§ 725.418(a)(2) allows the district 

director to by-pass the normal 

adjudication process and issue a 

proposed decision and order at any time 

if the ‘‘district director determines that 

its issuance will expedite the 

adjudication of the claim.’’ 20 CFR 

725.418(a)(2) (2011). Based on this 

provision, after enactment of the ACA, 

the Department began issuing proposed 

decisions and orders upon receipt of a 

survivor’s claim governed by amended 

Section 422(l). Although the general 

regulatory exception provides sufficient 

authority for this policy, revising 

§ 725.418 to include an explicit 

exception to the normal district director 

adjudication procedures for derivativeentitlement claims, and to set forth 

defined procedures through which an 

operator may challenge its liability, 

gives the public notice as to how the 

Department will handle these recurrent 

claims. Accordingly, proposed 

§ 725.418(a)(3) states that a district 

director may issue a proposed decision 

and order upon receipt of a claim filed 

by a survivor who is entitled to benefits 

under amended Section 422(l). 

Proposed paragraph (a)(3) also describes 

the procedures for an operator to 

challenge its liability in such cases. 

Current § 725.418(d) states that a 

district director cannot identify an 

operator as responsible for the claim in 

the proposed decision and order 

without first providing the operator 

notice of the claim and the opportunity 

to submit evidence challenging the 

claimant’s entitlement and its liability. 

Based on the exception created by 

current § 725.418(a)(2), the Director has 

not applied this paragraph in claims 

awarded under amended Section 422(l). 

Proposed § 725.418(d) clarifies that this 

requirement does not apply in the case 

of a claim awarded under amended 

Section 422(l). The rest of the rule 

remains unchanged. 

III. Statutory Authority 

Section 426(a) of the BLBA, 30 U.S.C. 

936(a), authorizes the Secretary of Labor 

to prescribe rules and regulations 

necessary for the administration and 

enforcement of the Act. 

IV. Information Collection 

Requirements (Subject to the 

Paperwork Reduction Act) Imposed 

Under the Proposed Rule 

This rulemaking imposes no new 

collections of information. 


tkelley on DSK3SPTVN1PROD with PROPOSALS2
19470 Federal Register / Vol. 77, No. 62 / Friday, March 30, 2012 / Proposed Rules 

V. Executive Orders 12866 and 13563 

(Regulatory Planning and Review) 

Executive Orders 12866 and 13563 

direct agencies to assess all costs and 

benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). E.O. 13563 emphasizes the 

importance of quantifying both costs 

and benefits, of reducing costs, of 

harmonizing rules, and of promoting 

flexibility. It also instructs agencies to 

review ‘‘rules that may be outmoded, 

ineffective, insufficient, or excessively 

burdensome, and to modify, streamline, 

expand, or repeal them.’’ In accordance 

with this Executive Order, the 

Department has proposed certain 

changes to these rules not otherwise 

required to implement the ACA’s 

statutory amendments. 

The proposed rules are consistent 

with the statutory mandate, reflecting 

the policy choices made by Congress in 

adopting the ACA amendments. Those 

choices reflect Congress’ rational 

decision ‘‘to spread the costs of the 

employees’ disabilities to those who 

have profited from the fruits of their 

labor—the operators and the coal 

consumers.’’ West Virginia CWP Fund v. 

Stacy, lll F.3d lll, 2011 WL 

6062116, *3 (4th Cir. Dec. 7, 2011) 

(quoting Usery, 428 U.S. at 18)). In 

restoring Section 411(c)(4), ‘‘Congress 

decided to ease the path to recovery for 

claimants who could prove at least 15 

years of coal mine employment and a 

totally disabling pulmonary 

impairment,’’ thus giving miners and 

their survivors ‘‘a better shot at 

obtaining benefits.’’ Keene v. 

Consolidation Coal Co., 645 F.3d 844, 

849 (7th Cir. 2011). And in restoring 

Section 422(l), Congress made ‘‘a 

legislative choice to compensate a 

miner’s dependents for the suffering 

they endured due to the miner’s 

pneumoconiosis or as a means to 

provide a miner with peace of mind that 

his dependents will continue to receive 

benefits after his death.’’ B & G Constr. 

Co. v. Director, OWCP [Campbell], 662 

F.3d 233, 258 (3d Cir. 2011). The 

proposed rules merely implement these 

Congressional directives. 

Although additional expenditures 

associated with these rules primarily 

flow from the statutory amendments 

rather than the rules themselves, the 

Department has evaluated the financial 

impact of the amendments’ application 

on coal mine operators. Coal mine 

operators’ outlays for the workers’ 

compensation insurance necessary to 

secure the payment of any benefits 

resulting from the amendments will 

likely increase, at least in the short run. 

Self-insured operators may also be 

required to pay out more in 

compensation to entitled miners and 

survivors. 

These operator expenditures are 

transfer payments as defined by OMB 

Circular A–4 (i.e., payments from one 

group to another that do not affect the 

total resources available to society). To 

estimate additional workers’ 

compensation insurance premiums that 

may result from the ACA amendments, 

the Department projected new claim 

filings, award rates and associated 

insurance premiums both with and 

without the amendments for the tenyear period 2010 through 2019. Based 

on the projected differences, the 

Department estimates that annualized 

industry insurance premiums will 

increase $35 million over this ten-year 

period as a result of the ACA 

amendments. This figure likely 

overstates the premium increase 

because it is based on two important 

assumptions designed to consider a 

maximum-impact scenario: the 

estimates assume that all coal mine 

operators purchase commercial workers’ 

compensation insurance rather than 

self-insuring, and the insurance rates 

used are based on the higher rates 

charged by assigned-risk plans rather 

than the lower rates generally available 

in the voluntary market. The 

Department’s estimate is explained 

more fully in the Regulatory Flexibility 

Act discussion below. 

Transfers also occur between 

insurance carriers or self-insured coal 

mine operators and benefit recipients. 

These transfers take the form of benefit 

payments. The amount of benefits 

payable on any given award depends 

upon a variety of factors, including the 

benefit recipient’s identity, the length of 

the recipient’s life, and whether the 

recipient has any eligible dependents 

for whom the basic benefit amount may 

be augmented. See generally 20 CFR 

725.202–725.228; 725.520 (2011). 

For example, in FY 2010, the 

Department oversaw 28,671 active Part 

C BLBA claims with income and 

medical benefit disbursements of 

approximately $238 million. This 

translates into an annual benefit rate of 

$8,316 per claim, or an average monthly 

benefit of $693. Of the total active 

claims in 2010 payable by coal mine 

operators and their insurance carriers, 

an estimated 156 were new awards 

resulting from the ACA amendments, 

translating into approximately $1.3 

million in additional income and 

medical benefit disbursements in the 

first year. Accordingly, the Department’s 

predicted 425 new awards in 

responsible operator claims for 2011 

equates to an estimated $3.5 million 

increase in benefit disbursements for the 

first year. 

Payments from the Black Lung 

Disability Trust Fund will also increase 

due to a small number of claims 

awarded under the ACA amendments 

and for which no coal mine operator 

may be held liable. The Department 

estimates that Trust Fund benefit 

payments will increase a total of 

approximately $48.3 million over the 

10-year period from 2010–2019. Despite 

this amendment-related increase, Trust 

Fund benefit payments as a whole are 

decreasing annually. The majority of the 

Trust Fund’s liabilities stem from earlier 

days of the black lung program, when 

the Trust Fund bore liability for a much 

higher percentage of awarded claims. 

Trust Fund payments cease when these 

benefit recipients pass away. As a result, 

the Trust Fund’s expenditures continue 

to decrease each year. 

Claimants who obtain benefits under 

the ACA amendments will gain a variety 

of advantages that are difficult to 

quantify in monetary terms. A disabled 

miner ‘‘has suffered in at least two 

ways: His health is impaired, and he has 

been rendered unable to perform the 

kind of work to which he has adapted 

himself.’’ Usery, 428 U.S. at 21. Income 

disbursements give these miners some 

financial relief and provide a modicum 

of compensation for the health 

impairment the miners suffered in 

working to meet the Nation’s energy 

needs. Medical treatment benefits 

provide health care to miners for the 

injury caused by their occupationally 

acquired pulmonary diseases and 

disabilities so as to maximize both their 

longevity and quality of life. Both 

income and medical benefits alleviate 

drains on public assistance resources. 

And miners awarded benefits under the 

ACA amendments may also rest assured 

that their dependent survivors will not 

be left wholly without financial support. 

In exchange, coal mine operators 

continue to be protected from common 

law tort actions that could otherwise be 

brought by these miners or their 

survivors for pneumoconiosis arising 

from the miner’s employment and 

related disabilities or death. See 33 

U.S.C. 905(a), incorporated by 30 U.S.C. 

932(a). And because the monthly benefit 

amounts payable are fixed by statute, 

compensation costs are predictable and 

feasible for insurers to cover at an 

affordable rate. This predictability also 

allows coal mine operators to pass their 


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costs for insurance (or benefits if selfinsured) on to consumers. 

From a program-administration 

viewpoint, the Department will realize 

some cost savings from the ACA 

amendment restoring Section 422(l)’s 

automatic entitlement for survivors. 

Before the amendment, the Department 

had to develop each survivor’s claim, 

including obtaining relevant medical 

evidence, evaluating that evidence, and 

issuing a detailed decision adjudicating 

whether the miner’s death was due to 

pneumoconiosis. That administrative 

work, and the costs associated with it, 

is no longer necessary where the 

survivor is entitled under Section 422(l). 

Instead, the regulations adopt a 

streamlined process for those cases that 

eliminates most evidentiary 

development and evaluation. This 

process has the dual benefit of 

delivering compensation to entitled 

survivors more quickly and reducing the 

costs associated with that delivery. 

The Office of Information and 

Regulatory Affairs of the Office of 

Management and Budget has 

determined that the Department’s rule 

represents a ‘‘significant regulatory 

action’’ under Section 3(f)(4) of 

Executive Order 12866 and has 

reviewed the rule. 

VI. Small Business Regulatory 

Enforcement Fairness Act of 1996 

As required by Congress under the 

Small Business Regulatory Enforcement 

Fairness Act of 1996, enacted as Title II 

of Public Law 104–121, 201–253, 110 

Stat. 847, 857 (1996), the Department 

will report promulgation of this rule to 

both Houses of the Congress and to the 

Comptroller General prior to its effective 

date as a final rule. The report will state 

that the rule is not a ‘‘major rule’’ as 

defined under 5 U.S.C. 804(2). 

VII. Unfunded Mandates Reform Act of 

1995 

Title II of the Unfunded Mandates 

Reform Act of 1995, 2 U.S.C. 1531 et 

seq., directs agencies to assess the 

effects of Federal Regulatory Actions on 

State, local, and tribal governments, and 

the private sector, ‘‘other than to the 

extent that such regulations incorporate 

requirements specifically set forth in 

law.’’ 2 U.S.C. 1531. For purposes of the 

Unfunded Mandates Reform Act, this 

rule does not include any Federal 

mandate that may result in increased 

expenditures by State, local, tribal 

governments, or increased expenditures 

by the private sector of more than 

$100,000,000. 

VIII. Regulatory Flexibility Act and 

Executive Order 13272 (Proper 

Consideration of Small Entities in 

Agency Rulemaking) 

The Regulatory Flexibility Act of 

1980, as amended, 5 U.S.C. 601 et seq., 

(RFA), requires an agency to prepare a 

regulatory flexibility analysis when it 

proposes regulations that will have ‘‘a 

significant economic impact on a 

substantial number of small entities,’’ or 

to certify that the proposed regulations 

will have no such impact, and to make 

the analysis or certification available for 

public comment. 5 U.S.C. 605. As noted 

above, the Department believes that the 

BLBA itself accounts for most, if not all, 

of the costs imposed on the coal mining 

industry and that the proposed rules do 

not add to those costs. 

The primary cost lies in purchasing 

commercial workers’ compensation 

insurance or qualifying as a self-insurer 

to insure workers covered by the BLBA. 

This requirement is imposed by statute. 

30 U.S.C. 933. The Department 

estimates that the cost of purchasing 

commercial insurance will increase 

initially because the BLBA amendments 

will result in additional awards but will 

then drop. The Department has 

conducted an initial regulatory 

flexibility analysis. A summary of that 

analysis is set forth below. The 

complete economic analysis is available 

for viewing and download at 

www.Regulations.gov or upon written 

request directed to the Division of Coal 

Mine Workers’ Compensation Programs, 

Office of Workers’ Compensation, U.S. 

Department of Labor, Room C–3520, 200 

Constitution Avenue NW., Washington, 

DC 20210. 

To estimate the maximum financial 

impact that the amendments and the 

proposed rule may have on coal mine 

operators, the Department based its 

economic analysis on two important 

assumptions. First, in estimating 

increases in workers’ compensation 

insurance premiums, the Department 

used rates charged by more expensive 

assigned risk plans, where available, 

rather than standard commercial 

insurance. These plans reflect rates for 

mine operators who are unable to secure 

coverage in the voluntary market and 

must use this insurer of last resort. 

Second, although approximately 38% of 

all coal mine operators are self-insured 

and will likely have lower costs of 

complying with the ACA amendments, 

the Department assumed that all 

operators purchased commercial 

insurance. As a result of these 

assumptions, the Department’s 

estimates likely overstate the actual cost 

impact of the ACA amendments and the 

proposed rule. 

A. Description of Reasons That Action 

by the Agency Is Being Considered 

The Department is proposing these 

rules to implement the ACA 

amendments to Sections 422(l) and 

411(c)(4) of the BLBA. The amendment 

to Section 422(l) allows certain eligible 

survivors to establish entitlement to 

benefits based on the fact that the miner 

had been awarded benefits and without 

having to prove that the miner died due 

to coal workers’ pneumoconiosis. The 

amendment to Section 411(c)(4) reestablishes a rebuttable presumption of 

total disability or death due to 

pneumoconiosis for certain claims. 

B. Objectives of, and Legal Basis for, the 

Proposed Rule 

Section 426(a) of the BLBA authorizes 

the Secretary to ‘‘issue such regulations 

as [she] deems appropriate to carry out 

the provisions of this title.’’ 30 U.S.C. 

936(a). The ACA amendments are selfeffectuating, and the Department has 

applied the amended statutory 

provisions in claims arising under the 

BLBA since their enactment. Although 

the amendments are legally binding by 

themselves, the Department believes it 

appropriate to incorporate those 

amendments into the existing regulatory 

scheme to clarify to all parties the 

manner in which the Department 

believes the amendments should be 

applied. Consequently, the proposed 

rule has two primary goals. First, it will 

set forth the requirements for derivative 

entitlement for the survivors of miners 

who had been awarded benefits on 

claims filed during their lifetimes. 

Second, the rule will spell out the 

requirements for invocation and rebuttal 

of the statutory presumption of total 

disability or death due to 

pneumoconiosis. 

C. Small Entities to Which the Proposed 

Rule Will Apply 

The RFA requires an administrative 

agency to describe, and where feasible, 

estimate the number of small entities to 

which a proposed rule will apply. 5 

U.S.C. 603(b)(3). Small entities include 

small businesses, small organizations, 

and small governmental jurisdictions. 5 

U.S.C. 601(6). The BLBA does not apply 

to or regulate small organizations or 

governmental jurisdictions. 

Accordingly, this analysis is limited to 

the effect of the proposed rule on small 

businesses. By its terms, the BLBA 

imposes obligations on coal mine 

operators, who are liable for and must 

secure the payment of benefits to their 

eligible employees, former employees, 


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and qualified survivors. 30 U.S.C. 932(b) 

(‘‘each such operator shall be liable for 

and shall secure the payment of 

benefits’’). An operator is defined as 

‘‘[a]ny owner, lessee, or other person 

who operates, controls or supervises a 

coal mine, or any independent 

contractor performing services or 

construction at such mine.’’ 20 CFR 

725.491(a)(1) (2011); see 30 U.S.C. 

802(d). 

Federal statistical agencies employ 

the North American Industry 

Classification System (NAICS) in 

classifying business establishments for 

the purpose of collecting, analyzing, and 

publishing statistical data related to the 

U.S. business economy. NAICS is also 

the standard used to classify small 

businesses for the RFA. See 5 U.S.C. 

601(3); 15 U.S.C. 632(a). NAICS was 

developed under the auspices of the 

Office of Management and Budget, and 

adopted in 1997 to replace the Standard 

Industrial Classification (SIC) system. 

The NAICS designated sector covering 

entities regulated by the BLBA is NAICS 

2121 Coal Mining. Three detailed 

industries comprise this sector: NAICS 

212111 Bituminous Coal and Lignite 

Surface Mining; NAICS 212112 

Bituminous Coal Underground Mining; 

and NAICS 212113 Anthracite Mining. 

The Small Business Administration 

(SBA) defines establishment size 

standards to determine whether a 

business entity, including all of its 

affiliates, is ‘‘small’’ and, thus, eligible 

for government programs and 

preferences reserved for ‘‘small business 

concerns.’’ In addition, the RFA requires 

agencies to consider the impact of their 

regulatory proposals on small entities. A 

size standard is usually stated in 

number of employees for manufacturing 

industries and average annual receipts 

for most non-manufacturing industries. 

The SBA size standard for the three 

sectors within the coal mining industry 

(NAICS 2121) is up to and including 

500 employees. See U.S. Small Business 

Administration, Table of Small Business 

Size Standards, Effective November 5, 

2010. http://www.sba.gov/content/tablesmall-business-size-standards. 

Virtually all coal mine operators in 

the United States fall within SBA’s 

definition of a small business. Based on 

data supplied by the Mine Safety and 

Health Administration for 2008, there 

are 2,109 individual establishments in 

the coal mining industry. Of these, 

2,094 employed 500 or fewer people. 

Each individual mining sector is also 

predominately comprised of small 

businesses under SBA’s definition. Only 

4 of the 1,307 surface bituminous 

mining establishments and 11 of 645 

underground bituminous mining 

establishments employed more than 500 

individuals. Finally, each of the 157 

anthracite mining establishments 

employed 500 or fewer individuals. 

These results hold true even when 

individual companies are aggregated 

into parent companies. Grouping related 

companies together, the Department 

found that only 31 of the 1,108 

companies employed more than 500 

people in 2008. Therefore, even when 

related mining companies are 

considered as a single, larger entity, 97.2 

percent (1,077 of 1,108) of companies in 

the coal mining industry employed 500 

or fewer people and meet the SBA’s 

definition of a small business. 

D. Projected Reporting, Recordkeeping 

and Other Compliance Requirements of 

the Proposed Rules, Including an 

Estimate of the Classes of Small Entities 

That Will Be Subject to the Requirement 

and the Type of Professional Skills 

Necessary for Preparation of the Report 

or Record 

The proposed rules do not directly 

impose any reporting or recordkeeping 

requirements on any entities, regardless 

of size. Nor do the rules impose other 

significant costs beyond those imposed 

by the BLBA itself. The statute requires 

coal mine operators to secure the 

payment of benefits by either 

purchasing commercial workers’ 

compensation insurance or qualifying as 

a Department-approved self-insurer. 30 

U.S.C. 933. But because the ACA 

amendments may make it easier for 

certain miners and survivors to secure 

entitlement to benefits, the Department 

believes there will be a short-term 

increase in black lung insurance rates. 

In particular, the Department 

anticipates that the rule interpreting 

amended Section 422(l) will result in a 

significant increase in the number of 

survivors entitled to benefits. This 

increased eligibility, however, simply 

reflects the clear intent of Congress, 

which was to benefit a broad set of 

current and future claimants. As the late 

Senator Robert C. Byrd, sponsor of 

Section 1556 explained, amended 

Sections 411(c)(4) and 422(l) were not 

meant to benefit only future claimants 

making initial claims, but also (1) 

claimants who have had claims denied 

and will be filing subsequent claims; (2) 

claimants awaiting or appealing a 

decision or order; and (3) claimants in 

the midst of trying to determine whether 

to seek a modification of a recent order. 

See 156 Cong. Rec. S2083–84 (daily ed. 

Mar. 25, 2010) (statement of Sen. Byrd). 

Any increase in awards attributable to 

the ACA amendments will be reflected 

in increased workers’ compensation 

insurance premiums. As previously 

stated, the Department has estimated 

these increases using more costly 

assigned risk rates to project the worstcase scenario. In 2009, prior to the 

ACA’s enactment, the average assigned 

risk rate for surface bituminous mines 

was $1.38 per $100 of payroll. The rate 

for underground bituminous mines was 

$3.36 per $100 of payroll. The rate for 

underground anthracite mines was 

$20.95 per $100 of payroll. Given the 

downward trend in claim filings, which 

would result in fewer new claim 

awards, coupled with a decline in 

survivors automatically entitled to 

benefits based on miners’ claims filed 

prior to 1982, the Department believes 

that these rates would have steadily 

decreased over the ten-year period from 

2010 to 2019 absent the ACA 

amendments. The Department projects 

that the average assigned risk rates in 

2019 would have been $.86 per $100 of 

payroll for surface bituminous mines, 

$2.10 per $100 of payroll for 

underground bituminous mines, and 

$13.10 per $100 of payroll for 

underground anthracite mines. 

The Department projects, however, 

that the total cost to the coal mining 

industry for complying with the Act’s 

insurance requirements will increase 

due to the ACA amendments. These 

costs are expected to peak during the 

first two years after the ACA’s 

enactment because the new law will 

spur new claim filings, which will 

result in more new claim awards, and 

affords automatic entitlement to an 

additional group of survivors. The 

Department projects that the average 

assigned risk rates in 2011, the peak 

expense year, will be $2.21 per $100 of 

payroll for surface bituminous mines, 

$5.39 per $100 of payroll for 

underground bituminous mines, and 

$33.60 per $100 of payroll for 

underground anthracite mines. After 

this temporary increase, total approvals 

against responsible operators are 

expected to decline, causing a 

corresponding decline in premium 

costs. By 2019, the Department projects 

that the average assigned risk rates will 

be $1.07 per $100 of payroll for surface 

bituminous mines, $2.61 per $100 of 

payroll for underground bituminous 

mines, and $16.28 per $100 of payroll 

for underground anthracite mines. 

Based on the difference in the 

Department’s baseline assessment of 

compliance costs absent the ACA 

amendments and the expected cost to 

the coal mining industry for complying 

with the ACA amendments and 

implementing regulations, the 

Department estimates that insurance 

premium will rise by an annualized cost 

of $35 million between 2010 and 2019. 


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The annualized insurance cost increases 

for each disaggregated coal mining 

industry for this ten-year period are 

expected to be $8.5 million for the 

bituminous surface mining sector, $23.6 

million for the bituminous underground 

mining sector, and $3 million for the 

anthracite mining sector. 

As noted, the Department expects 

these cost impacts to be transitory in 

nature. Historically, the program has 

experienced a spike in claim filings, and 

thus new awards, immediately 

following enactment of statutory 

amendments or implementation of new 

program regulations. After these 

transitory impacts have subsided, the 

annual cost to the coal mining industry 

is expected to decrease each year and 

continue to follow the downward trend 

in claim filings that existed prior to the 

ACA amendments. The Department 

estimates that by 2019, the industry cost 

for all claims (including those that 

would have been awarded even without 

the amendments) will be $91.6 million, 

more than $26 million lower than the 

2009 cost of $117.9 million. The 

Department emphasizes that these 

projected costs are likely overstated 

because they assume that all coal mine 

operators purchase commercial workers’ 

compensation insurance, which is more 

costly than self-insuring. 

Thus, the Department anticipates that 

the ACA amendments will carry an 

annualized cost to the industry of $35 

million over the ten years from 2010 to 

2019 with expenses peaking in 2011. 

Significantly, because this will occur 

prior to promulgation of any final 

regulations implementing the ACA 

amendments, the increased cost can be 

attributed solely to the amendments. For 

the industry in the aggregate, $35 

million represents 0.10 percent of 

annual industry revenues. The 

additional regulatory costs for the 

bituminous surface and underground 

coal mine sectors are expected to 

represent approximately 0.05 and 0.13 

percent of total revenues, respectively. 

However, given that bituminous coal 

mining productivity and therefore, 

production is heavily skewed toward 

larger establishments, establishments 

that employ 49 or fewer employees are 

expected to have the greatest costs 

relative to revenues. For example, the 

costs to pay the projected increased 

insurance rates represent 0.27 and 0.36 

percent of revenue respectively for 

bituminous surface and underground 

coal mines that employ fewer than 20 

workers—substantially greater than the 

industry averages and their larger firm 

counterparts. The additional cost for the 

anthracite industry represents 2.85 

percent of total revenues. This relatively 

large increase results from the relatively 

high labor intensity and high existing 

insurance premiums for anthracite coal 

mining. It is thus a function of the 

industry rather than the amendments or 

the proposed regulations. 

Establishments within this sector that 

employ under 20 workers are expected 

to have the greatest costs relative to 

revenues given their relatively lower 

productivity rate. 

Identification of Relevant Federal Rules 

That May Duplicate, Overlap or Conflict 

With the Proposed Rule 

The Department is unaware of any 

rule that may duplicate, overlap or 

conflict with the proposed rule. 

E. Description of Any Significant 

Alternatives to the Proposed Rule That 

Accomplish the Stated Objectives of 

Applicable Statutes and That Minimize 

Any Significant Economic Impact of the 

Proposed Rule on Small Entities 

The RFA requires the Department to 

consider alternatives to the rule that 

would minimize any significant 

economic impact on small businesses 

without sacrificing the stated objectives 

of the rule. Several factors make 

proposing alternatives to the rule 

exceptionally difficult. First, these rules 

implement entitlement criteria that 

Congress has expressly determined be 

applied to certain claims filed under the 

BLBA. The Department is not free to 

disregard the clearly expressed intent of 

Congress. Chevron USA Inc., v. Natural 

Res. Def. Counsel, Inc., 467 U.S. 837, 

842–43 (1984) (‘‘agency [] must give 

effect to the unambiguously expressed 

intent of Congress’’). Second, the 

requirement that the amendments apply 

to claims filed under the BLBA must 

mean that Congress intended the 

amendments to be applied in the 

context of existing claim procedures as 

specified in the Department’s 

regulations. Congress is presumed to 

know the law when it legislates. Miles 

v. Apex Marine Corp., 498 U.S. 19, 32 

(1990). In the black lung benefits 

program, the existing regulations 

explicitly prescribe the circumstances 

under which a coal mine operator 

would be liable for a particular claim 

and how the Department is required to 

identify the particular operator liable for 

each claim. This regulatory liability 

scheme was designed in accordance 

with the stated objective of Congress, 

which was ‘‘to ensure that individual 

coal mine operators rather than the 

[Black Lung Disability Trust Fund] bear 

the liability for claims arising out of 

such operator’s mines, to the maximum 

extent feasible.’’ S. Rep. No. 95–209 

(1977), reprinted in House Comm. on 

Educ. and Labor, 96th Cong., Black 

Lung Benefits Reform Act and Black 

Lung Benefits Revenue Act of 1977, at 

612 (1979). 

In amending the BLBA, Congress gave 

no indication that the Department 

should alter the long-established rules 

for imposing liability on individual coal 

mine operators and relieve a particular 

operator of liability created by the 

amendments based solely on its size. 

Even assuming the Department had 

authority to alter those requirements, 

the SBA’s size standard requirements 

include the vast majority of coal mine 

operators as small businesses. 

Consequently, any alteration of the rule 

to exempt small businesses would 

necessarily nullify the amendments. 

There is simply no legal or rational basis 

that would justify alteration of the 

existing claim liability scheme with 

regard to rules implementing the ACA 

amendments to the BLBA. 

The only possible way to lessen the 

impact of the proposed rules on small 

businesses would be to ensure that 

claims resulted in fewer awards. Given 

that, as noted above, the Department is 

not free to depart from the expressly 

stated intent of Congress in 

implementing legislation, that route is 

also problematic. The impact and intent 

of the amendments is clear, and since 

the ACA’s enactment, the Department 

has applied them in a manner consistent 

with these proposed regulations. 

The Department is aware of only one 

rule that could arguably be considered 

an agency policy choice—the proposed 

revision to § 725.309 stating that the 

requirement to demonstrate a change in 

an applicable condition of entitlement 

does not apply to re-filed survivors’ 

claims governed by amended Section 

422(l). This rule allows a survivor who 

had previously filed a claim that was 

denied under the law in effect before the 

ACA’s enactment to re-file and obtain 

benefits pursuant to amended Section 

422(l) if the miner was awarded benefits 

on a claim filed during his or her 

lifetime. As explained above, the 

Department believes this rule is fully 

justified under the plain language of the 

amendments and is consistent with 

traditional principles of res judicata. 

See discussion under § 725.309. 

In any event, the Department believes 

the impact of this rule will be minimal. 

The universe of potential claimants who 

would benefit by this rule, and whose 

benefits would be the responsibility of 

a coal mine operator, is finite. The 

Department believes that, at most, there 

are only 445 survivors of awarded 

miners who have had a prior claim 

denied and who could not be confirmed 

as deceased through the SSA Death 


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Master file. The Department estimates 

that the actual number of re-filing 

survivors will be smaller. It is likely that 

a portion of these survivors are deceased 

because the Department does not have 

social security numbers for all 

dependents, and thus could not check 

those survivors against the Death Master 

file. Others may have re-married, and 

thus be ineligible for survivor’s benefits, 

or will not re-file a claim for some other 

reason. Moreover, in at least some cases 

the operator or carrier liable for the 

miner’s benefits will now be bankrupt, 

and the Black Lung Disability Trust 

Fund will be liable for the survivor’s 

benefits. Based on these premises, the 

Department estimates that only 317 

survivors will re-file for benefits under 

amended Section 422(l). 

This relatively insignificant figure 

may even overstate the number of 422(l) 

re-filings in responsible operator cases. 

As of May 2, 2011, the Department had 

received only 75 re-filed claims eligible 

under amended Section 422(l). For 

fiscal year 2011, the year in which the 

largest cost is imposed by the ACA 

amendments, the number of claims 

actually re-filed or estimated to be refiled, is 72. The Department received 42 

re-filed claims filed in the first seven 

months of the year. It estimates that if 

such claims are filed at the same rate— 

six per month—the total for the year 

will be 72. This amounts to only 19.6% 

of the 368 actual and predicted 422(l) 

awards for 2011, and only 7% of the 

1023 actual and predicted awards for 

that year. 

Finally, the financial impact of 

proposed § 725.309 on coal mine 

operators is mitigated in two ways. 

First, an existing rule limits retroactive 

benefit payments in any awarded refiled claim. Ordinarily, a survivor 

awarded benefits receives them 

beginning with the month in which the 

miner died. Under the existing rule, the 

survivor would not be entitled to 

benefits for the period prior to the day 

on which the prior denial became final. 

Second, an operator who ensures its 

BLBA liabilities with commercial 

insurance will not incur any additional 

costs because it has already purchased 

the insurance necessary to cover the 

survivor’s claim. For these reasons, the 

Department does not believe that 

allowing re-filing survivors to receive 

benefits under amended Section 422(l) 

imposes significant hardships on small 

coal mine businesses. There is thus no 

reason to alter or abandon this proposed 

rule. 

F. Questions for Comment To Assist 

Regulatory Flexibility Analysis 

The Department invites all interested 

parties to submit comments regarding 

the costs and benefits of the proposed 

rule with particular attention to the 

effects of the rule on small entities 

described in the analysis above. 

IX. Executive Order 13132 (Federalism) 

The Department has reviewed this 

proposed rule in accordance with 

Executive Order 13132 regarding 

federalism, and has determined that it 

does not have ‘‘federalism 

implications.’’ E.O. 13132, 64 FR 43255 

(Aug. 4, 1999). The proposed rule will 

not ‘‘have substantial direct effects on 

the States, on the relationship between 

the national government and the States, 

or on the distribution of power and 

responsibilities among the various 

levels of government’’ if promulgated as 

a final rule. Id. 

X. Executive Order 12988 (Civil Justice 

Reform) 

The proposed rule meets the 

applicable standards in Sections 3(a) 

and 3(b)(2) of Executive Order 12988, 

Civil Justice Reform, to minimize 

litigation, eliminate ambiguity, and 

reduce burden. 

XI. Congressional Review Act 

The proposed rule is not a ‘‘major 

rule’’ as defined in the Congressional 

Review Act, 5 U.S.C. 801 et seq. If 

promulgated as a final rule, this rule 

will not result in an annual effect on the 

economy of $100,000,000 or more; a 

major increase in costs or prices for 

consumers, individual industries, 

Federal, State or local government 

agencies, or geographic regions; or 

significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or on the 

ability of United States-based 

enterprises to compete with foreignbased enterprises in domestic and 

export markets. 

List of Subjects in 20 CFR Parts 718 and 

725 

Claims, Total Disability due to 

pneumoconiosis; coal miners’ 

entitlement to benefits; survivors’ 

entitlement to benefits, Workers’ 

compensation. 

For the reasons set forth in the 

preamble, the Department of Labor 

proposes to amend 20 CFR parts 718 

and 725 as follows: 

PART 718—STANDARDS FOR 

DETERMINING COAL MINERS’ TOTAL 

DISABILITY OR DEATH DUE TO 

PNEUMOCONIOSIS 

1. The authority citation for part 718 

is revised to read as follows: 

Authority: 5 U.S.C. 301; Reorganization 

Plan No. 6 of 1950, 15 FR 3174; 30 U.S.C. 901 

et seq., 902(f), 934, 936; 33 U.S.C. 901 et seq.; 

42 U.S.C. 405; Secretary’s Order 10–2009, 74 

FR 58834. 

2. Revise § 718.1 to read as follows: 

§ 718.1 Statutory provisions. 

Section 402(f) of the Act authorizes 

the Secretary of Labor to establish 

criteria for determining total disability 

or death due to pneumoconiosis to be 

applied in the processing and 

adjudication of claims filed under Part 

C of the Act. Section 402(f) further 

authorizes the Secretary of Labor, in 

consultation with the National Institute 

for Occupational Safety and Health, to 

establish criteria for all appropriate 

medical tests administered in 

connection with a claim for benefits. 

Section 413(b) of the Act authorizes the 

Secretary of Labor to establish criteria 

for the techniques used to take chest 

roentgenograms (x-rays) in connection 

with a claim for benefits under the Act. 

3. Revise § 718.2 to read as follows: 

§ 718.2 Applicability of this part. 

(a) With the exception of the second 

sentence of § 718.204(a), this part is 

applicable to the adjudication of all 

claims filed on or after June 30, 1982 

under Part C of the Act. It provides 

standards for establishing entitlement to 

benefits under the Act and describes the 

criteria for the development of medical 

evidence used in establishing such 

entitlement. The second sentence of 

§ 718.204(a) is applicable to the 

adjudication of all claims filed after 

January 19, 2001. 

(b) Publication of certain provisions 

or parts of certain provisions that apply 

only to claims filed prior to June 30, 

1982, or to claims subject to Section 435 

of the Act, has been discontinued 

because those provisions affect an 

increasingly smaller number of claims. 

The version of Part 718 set forth in 20 

CFR, parts 500 to end, edition revised as 

of April 1, 2010, applies to the 

adjudication of all claims filed prior to 

June 30, 1982, as appropriate. 

(c) The provisions of this part shall, 

to the extent appropriate, be construed 

together in the adjudication of claims. 

4. Revise § 718.3(a) to read as follows: 

§ 718.3 Scope and intent of this part. 

(a) This part sets forth the standards 

to be applied in determining whether a 


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coal miner is or was totally disabled due 

to pneumoconiosis or died due to 

pneumoconiosis. It also specifies the 

procedures and requirements to be 

followed in conducting medical 

examinations and in administering 

various tests relevant to such 

determinations. 

* * * * * 

5. Revise § 718.202(a)(3) to read as 

follows: 

§ 718.202 Determining the existence of 

pneumoconiosis. 

(a) * * * 

(3) If the presumptions described in 

§§ 718.304 or 718.305 are applicable, it 

shall be presumed that the miner is or 

was suffering from pneumoconiosis. 

* * * * * 

6. Revise § 718.205 to read as follows: 

§ 718.205 Death due to pneumoconiosis. 

(a) Benefits are provided to eligible 

survivors of a miner whose death was 

due to pneumoconiosis. In order to 

receive benefits based on a showing of 

death due to pneumoconiosis, a 

claimant must prove that: 

(1) The miner had pneumoconiosis 

(see § 718.202); 

(2) The miner’s pneumoconiosis arose 

out of coal mine employment (see 

§ 718.203); and 

(3) The miner’s death was due to 

pneumoconiosis as provided by this 

section. 

(b) Death will be considered to be due 

to pneumoconiosis if any of the 

following criteria is met: 

(1) Where competent medical 

evidence establishes that 

pneumoconiosis was the cause of the 

miner’s death, or 

(2) Where pneumoconiosis was a 

substantially contributing cause or 

factor leading to the miner’s death or 

where the death was caused by 

complications of pneumoconiosis, or 

(3) Where the presumption set forth at 

§ 718.304 is applicable, or 

(4) For survivors’ claims filed after 

January 1, 2005, and pending on or after 

March 23, 2010, where the presumption 

at § 718.305 is invoked and not rebutted. 

(5) However, survivors are not eligible 

for benefits where the miner’s death was 

caused by a traumatic injury or the 

principal cause of death was a medical 

condition not related to 

pneumoconiosis, unless the claimant 

establishes (by proof or presumption) 

that pneumoconiosis was a substantially 

contributing cause of death. 

(6) Pneumoconiosis is a ‘‘substantially 

contributing cause’’ of a miner’s death if 

it hastens the miner’s death. 

7. Revise § 718.301 to read as follows: 

§ 718.301 Establishing length of 

employment as a miner. 

The presumptions set forth in 

§§ 718.302 and 718.305 apply only if a 

miner worked in one or more coal mines 

for the number of years required to 

invoke the presumption. The length of 

the miner’s coal mine work history must 

be computed as provided by 20 CFR 

725.101(a)(32). 

8. Remove and reserve § 718.303. 

§ 718.303 [Reserved] 

9. Revise § 718.305 to read as follows: 

§ 718.305 Presumption of 

pneumoconiosis. 

(a) Applicability. This section applies 

to all claims filed after January 1, 2005, 

and pending on or after March 23, 2010. 

(b) Invocation. (1) The claimant may 

invoke the presumption by establishing 

that— 

(i) the miner engaged in coal-mine 

employment for fifteen years, either in 

one or more underground coal mines, or 

in coal mines other than underground 

mines in conditions substantially 

similar to those in underground mines, 

or in any combination thereof; and 

(ii) the miner or survivor cannot 

establish entitlement under section 

718.304 by means of chest x-ray 

evidence; and 

(iii) the miner has, or had at the time 

of his death, a totally disabling 

respiratory or pulmonary impairment 

established pursuant to § 718.204, 

except that § 718.204(d) shall not apply. 

(2) The conditions in a mine other 

than an underground mine will be 

considered ‘‘substantially similar’’ to 

those in an underground mine if the 

miner was exposed to coal-mine dust 

while working there. 

(3) In a claim involving a living 

miner, a miner’s affidavit or testimony, 

or a spouse’s affidavit or testimony, may 

not be used by itself to establish the 

existence of a totally disabling 

respiratory or pulmonary impairment. 

(4) In the case of a deceased miner, 

affidavits (or equivalent sworn 

testimony) from persons knowledgeable 

of the miner’s physical condition shall 

be sufficient to establish total disability 

due to a respiratory or pulmonary 

impairment if no medical or other 

relevant evidence exists which 

addresses the miner’s pulmonary or 

respiratory condition; however, such a 

determination shall not be based solely 

upon the affidavits or testimony of any 

person who would be eligible for 

benefits (including augmented benefits) 

if the claim were approved. 

(c) Facts presumed. Once invoked, 

there will be rebuttable presumption— 

(1) in a miner’s claim, that the miner 

is totally disabled due to 

pneumoconiosis, or was totally disabled 

due to pneumoconiosis at the time of 

death; or 

(2) in a survivor’s claim, that the 

miner’s death was due to 

pneumoconiosis. 

(d) Rebuttal. (1) Miner’s Claim. In a 

claim filed by a miner, the party 

opposing entitlement may rebut the 

presumption by establishing that— 

(i) the miner does not, or did not, 

have pneumoconiosis as defined in 

section 718.201; or 

(ii) the miner’s respiratory or 

pulmonary total disability did not arise 

in whole or in part out of dust exposure 

in the miner’s coal mine employment. 

(2) Survivor’s Claim. In a claim filed 

by a survivor, the party opposing 

entitlement may rebut the presumption 

by establishing that— 

(i) the miner did not have 

pneumoconiosis as defined in section 

718.201; or 

(ii) the miner’s death did not arise in 

whole or in part out of dust exposure in 

the miner’s coal mine employment. 

(3) In no case shall the presumption 

be considered rebutted on the basis of 

evidence demonstrating the existence of 

a totally disabling obstructive 

respiratory or pulmonary disease of 

unknown origin. 

10. Remove and reserve § 718.306. 

§ 718.306 [Reserved] 

11. Revise the introductory text of 

Appendix C to Part 718 to read as 

follows: 

Appendix C to Part 718—Blood-Gas 

Tables. 

The following tables set forth the values to 

be applied in determining whether total 

disability may be established in accordance 

with § 718.204(b)(2)(ii). The values contained 

in the tables are indicative of impairment 

only. They do not establish a degree of 

disability except as provided in 

§ 718.204(b)(2)(ii) of this subchapter, nor do 

they establish standards for determining 

normal alveolar gas exchange values for any 

particular individual. Tests shall not be 

performed during or soon after an acute 

respiratory or cardiac illness. A miner who 

meets the following medical specifications 

shall be found to be totally disabled, in the 

absence of rebutting evidence, if the values 

specified in one of the following tables are 

met: 

* * * * * 

PART 725—CLAIMS FOR BENEFITS 

UNDER PART C OF TITLE IV OF THE 

FEDERAL MINE SAFETY AND HEALTH 

ACT, AS AMENDED 

12. The authority citation for part 725 

is revised to read as follows: 

Authority: 5 U.S.C. 301; Reorganization 

Plan No. 6 of 1950, 15 FR 3174; 30 U.S.C. 901 


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et seq., 902(f), 921, 932, 936; 33 U.S.C. 901 

et seq.; 42 U.S.C. 405; Secretary’s Order 10– 

2009, 74 FR 58834. 

13. Revise § 725.1 to read as follows: 

§ 725.1 Statutory provisions. 

(a) General. Subchapter IV of the 

Federal Coal Mine Health and Safety 

Act of 1969, as amended by the Black 

Lung Benefits Act of 1972, the Federal 

Mine Safety and Health Amendments 

Act of 1977, the Black Lung Benefits 

Reform Act of 1977, the Black Lung 

Benefits Revenue Act of 1977, the Black 

Lung Benefits Amendments of 1981, the 

Black Lung Benefits Revenue Act of 

1981, the Black Lung Consolidation of 

Responsibility Act of 2002, and the 

Patient Protection and Affordable Care 

Act of 2010 (together comprising the 

Black Lung Benefits Act (see 

§ 725.101(a)(1)) provides for the 

payment of benefits to certain disabled 

coal miners and their survivors. See 

725.201. 

(b) Part B. Part B of subchapter IV of 

the Act provided that claims filed before 

July 1, 1973 were to be filed with, and 

adjudicated and administered by, the 

Social Security Administration (SSA). If 

awarded, these claims were paid by SSA 

out of appropriated funds. The Black 

Lung Consolidation of Administrative 

Responsibility Act (see subsection (h) of 

this section) transferred all 

responsibility for continued 

administration of these claims to the 

Department of Labor. 

(c) Part C. Claims filed by a miner or 

survivor on or after January 1, 1974, are 

filed, adjudicated, and paid under the 

provisions of part C of subchapter IV of 

the Act. Part C requires that a claim 

filed on or after January 1, 1974, shall 

be filed under an applicable approved 

State workers’ compensation law, or if 

no such law has been approved by the 

Secretary of Labor, the claim may be 

filed with the Secretary of Labor under 

section 422 of the Act. Claims filed with 

the Secretary of Labor under part C are 

processed and adjudicated by the 

Secretary. Individual coal mine 

operators are primarily liable for 

benefits; however, if the miner’s last 

coal mine employment terminated 

before January 1, 1970, or if no 

responsible operator can be identified, 

benefits are paid by the Black Lung 

Disability Trust Fund. Claims 

adjudicated under part C are subject to 

certain incorporated provisions of the 

Longshore and Harbor Workers’ 

Compensation Act. 

(d) Changes made by the Black Lung 

Benefits Reform Act of 1977. The Black 

Lung Benefits Reform Act of 1977 

contains a number of significant 

amendments to the Act’s standards for 

determining eligibility for benefits. 

Among these are: 

(1) A provision which clarifies the 

definition of ‘‘pneumoconiosis’’ to 

include any ‘‘chronic dust disease of the 

lung and its sequelae, including 

respiratory and pulmonary 

impairments, arising out of coal mine 

employment’’; 

(2) A provision which defines 

‘‘miner’’ to include any person who 

works or has worked in or around a coal 

mine or coal preparation facility, and in 

coal mine construction or coal 

transportation under certain 

circumstances; 

(3) A provision that continued 

employment in a coal mine is not 

conclusive proof that a miner is not or 

was not totally disabled; 

(4) A provision which authorizes the 

Secretary of Labor to establish standards 

and develop criteria for determining 

total disability or death due to 

pneumoconiosis with respect to a part C 

claim; 

(5) Provisions relating to the treatment 

to be accorded a survivor’s affidavit, 

certain X-ray interpretations, and 

certain autopsy reports in the 

development of a claim; and 

(6) Other clarifying, procedural, and 

technical amendments. 

(e) Changes made by the Black Lung 

Benefits Revenue Act of 1977. The Black 

Lung Benefits Revenue Act of 1977 

established the Black Lung Disability 

Trust Fund which is financed by a 

specified tax imposed upon each ton of 

coal (except lignite) produced and sold 

or used in the United States after March 

31, 1978. The Secretary of the Treasury 

is the managing trustee of the fund and 

benefits are paid from the fund upon the 

direction of the Secretary of Labor. The 

fund was made liable for the payment 

of all claims approved under part C of 

the Act for all periods of eligibility 

occurring on or after January 1, 1974, 

with respect to claims where the miner’s 

last coal mine employment terminated 

before January 1, 1970, or where 

individual liability can not be assessed 

against a coal mine operator due to 

bankruptcy, insolvency, or the like. The 

fund was also authorized to pay certain 

claims which a responsible operator has 

refused to pay within a reasonable time, 

and to seek reimbursement from such 

operator. The purpose of the fund and 

the Black Lung Benefits Revenue Act of 

1977 was to insure that coal mine 

operators, or the coal industry, will fully 

bear the cost of black lung disease for 

the present time and in the future. The 

Black Lung Benefits Revenue Act of 

1977 also contained other provisions 

relating to the fund and authorized a 

coal mine operator to establish its own 

trust fund for the payment of certain 

claims. 

(f) Changes made by the Black Lung 

Benefits Amendments of 1981. The 

Black Lung Benefits Amendments of 

1981 made a number of significant 

changes in the Act’s standards for 

determining eligibility for benefits and 

concerning the payment of such 

benefits, and applied the changes to 

claims filed on or after January 1, 1982. 

Among these are: 

(1) The Secretary of Labor may re-read 

any X-ray submitted in support of a 

claim and may rely upon a second 

opinion concerning such an X-ray as a 

means of auditing the validity of the 

claim; 

(2) The rebuttable presumption that 

the total disability of a miner with 

fifteen or more years employment in the 

coal mines, who has demonstrated a 

totally disabling respiratory or 

pulmonary impairment, is due to 

pneumoconiosis is no longer applicable 

(but the presumption was reinstated for 

claims filed after January 1, 2005, and 

pending on or after March 23, 2010, by 

the Patient Protection and Affordable 

Care Act of 2010 (see subsection (i) of 

this section)); 

(3) In the case of deceased miners, 

where no medical or other relevant 

evidence is available, only affidavits 

from persons not eligible to receive 

benefits as a result of the adjudication 

of the claim will be considered 

sufficient to establish entitlement to 

benefits; 

(4) Unless the miner was found 

entitled to benefits as a result of a claim 

filed prior to January 1, 1982, benefits 

are payable on survivors’ claims filed on 

and after January 1, 1982, only when the 

miner’s death was due to 

pneumoconiosis (but for survivors’ 

claims filed after January 1, 2005, and 

pending on or after March 23, 2010, an 

award of a miner’s claim may form the 

basis for a survivor’s entitlement under 

the Patient Protection and Affordable 

Care Act of 2010 (see subsection (i) of 

this section)); 

(5) Benefits payable under this part 

are subject to an offset on account of 

excess earnings by the miner; and 

(6) Other technical amendments. 

(g) Changes made by the Black Lung 

Benefits Revenue Act of 1981. The Black 

Lung Benefits Revenue Act of 1981 

temporarily doubles the amount of the 

tax upon coal until the fund shall have 

repaid all advances received from the 

United States Treasury and the interest 

on all such advances. With respect to 

claims filed on or after January 1, 1982, 

the fund’s authorization for the payment 

of interim benefits is limited to the 

payment of prospective benefits only. 


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These changes also define the rates of 

interest to be paid to and by the fund. 

(h) Changes made by the Black Lung 

Consolidation of Administrative 

Responsibility Act. The Black Lung 

Consolidation of Administrative 

Responsibility Act of 2002 transferred 

administrative responsibility for all 

claims previously filed with or 

administered by the Social Security 

Administration to the Department of 

Labor, effective January 31, 2003. As a 

result, certain obsolete provisions in the 

BLBA (30 U.S.C. 904, 924a, and 945) 

were repealed. Various technical 

changes were made to other statutory 

provisions. 

(i) Changes made by the Patient 

Protection and Affordable Care Act of 

2010. The Patient Protection and 

Affordable Care Act of 2010 (the ACA) 

changed the entitlement criteria for 

miners’ and survivors’ claims filed after 

January 1, 2005, and pending on or after 

March 23, 2010, by reinstating two 

provisions made inapplicable by the 

Black Lung Benefits Amendments of 

1981. 

(1) For miners’ claims meeting these 

date requirements, the ACA reinstated 

the rebuttable presumption that the 

miner is (or was) totally disabled due to 

pneumoconiosis if the miner has (or 

had) 15 or more years of qualifying coal 

mine employment and a totally 

disabling respiratory or pulmonary 

impairment. 

(2) For survivors’ claims meeting 

these date requirements, the ACA made 

two changes. First, it reinstated the 

rebuttable presumption that the miner’s 

death was due to pneumoconiosis if the 

miner had 15 years or more of 

qualifying coal mine employment and 

was totally disabled by a respiratory or 

pulmonary impairment at the time of 

death. Second, it reinstituted derivative 

survivors’ entitlement. As a result, an 

eligible survivor will be entitled to 

benefits if the miner is or was found 

entitled to benefits on his or her lifetime 

claim based on total disability due to 

pneumoconiosis arising out of coalmine employment. 

(j) Longshore Act provisions. The 

adjudication of claims filed under part 

C of the Act (i.e., claims filed on or after 

January 1, 1974) is governed by various 

procedural and other provisions 

contained in the Longshore and Harbor 

Workers’ Compensation Act (LHWCA), 

as amended from time to time, which 

are incorporated within the Act by 

section 422. The incorporated LHWCA 

provisions are applicable under the Act 

except as is otherwise provided by the 

Act or as provided by regulations of the 

Secretary. Although occupational 

disease benefits are also payable under 

the LHWCA, the primary focus of the 

procedures set forth in that Act is upon 

a time-definite-traumatic injury or 

death. Because of this and other 

significant differences between a black 

lung and longshore claim, it is 

determined, in accordance with the 

authority set forth in section 422 of the 

Act, that certain of the incorporated 

procedures prescribed by the LHWCA 

must be altered to fit the circumstances 

ordinarily confronted in the 

adjudication of a black lung claim. The 

changes made are based upon the 

Department’s experience in processing 

black lung claims since July 1, 1973, 

and all such changes are specified in 

this part. No other departure from the 

incorporated provisions of the LHWCA 

is intended. 

(k) Social Security Act provisions. 

Section 402 of Part A of the Act 

incorporates certain definitional 

provisions from the Social Security Act, 

42 U.S.C. 301 et seq. Section 430 

provides that the 1972, 1977 and 1981 

amendments to part B of the Act shall 

also apply to part C ‘‘to the extent 

appropriate.’’ Sections 412 and 413 

incorporate various provisions of the 

Social Security Act into part B of the 

Act. To the extent appropriate, 

therefore, these provisions also apply to 

part C. In certain cases, the Department 

has varied the terms of the Social 

Security Act provisions to accommodate 

the unique needs of the black lung 

benefits program. Parts of the Longshore 

and Harbor Workers’ Compensation Act 

are also incorporated into part C. Where 

the incorporated provisions of the two 

acts are inconsistent, the Department 

has exercised its broad regulatory 

powers to choose the extent to which 

each incorporation is appropriate. 

Finally, Section 422(g), contained in 

part C of the Act, incorporates 42 U.S.C. 

403(b)-(l). 

14. In § 725.2, revise paragraphs (a) 

and (b) to read as follows: 

§ 725.2 Purpose and applicability of this 

part. 

(a) This part sets forth the procedures 

to be followed and standards to be 

applied in filing, processing, 

adjudicating, and paying claims filed 

under part C of subchapter IV of the Act. 

(b) This part applies to all claims filed 

under part C of subchapter IV of the Act 

on or after June 30, 1982. Publication of 

certain provisions or parts of certain 

provisions that apply only to claims 

filed prior to June 30, 1982, or to claims 

subject to Section 435 of the Act, has 

been discontinued because those 

provisions affect an increasingly smaller 

number of claims. The version of Part 

725 set forth in 20 CFR, parts 500 to 

end, edition revised as of April 1, 2010, 

applies to the adjudication of all claims 

filed prior to June 30, 1982, as 

appropriate. 

* * * * * 

15. In § 725.101, revise paragraphs 

(a)(1) and (a)(2) to read as follows: 

§ 725.101 Definition and use of terms. 

(a) * * * 

(1) The Act means the Black Lung 

Benefits Act, 30 U.S.C. 901–44, as 

amended. 

(2) The Longshore Act or LHWCA 

means the Longshore and Harbor 

Workers’ Compensation Act, 33 U.S.C. 

901–950, as amended from time to time. 

* * * * * 

16. In § 725.201: 

a. Revise paragraph (a); 

b. Remove paragraph (b); and 

c. Redesignate paragraphs (c) and (d) 

as paragraphs (b) and (c). 

The revision reads as follows: 

§ 725.201 Who is entitled to benefits; 

contents of this subpart. 

(a) Part C of the Act provides for the 

payment of periodic benefits in 

accordance with this part to: 

(1) A miner who meets the conditions 

of entitlement set forth in 725.202(d); or 

(2) The surviving spouse or surviving 

divorced spouse of a deceased miner 

who meets the conditions of entitlement 

set forth in 725.212; or, 

(3) Where neither exists, the child of 

a deceased miner who meets the 

conditions of entitlement set forth in 

725.218; or 

(4) The surviving dependent parents, 

where there is no surviving spouse or 

child, or the surviving dependent 

brothers or sisters, where there is no 

surviving spouse, child, or parent, of a 

miner, who meet the conditions of 

entitlement set forth in 725.222; or 

(5) The child of a miner’s surviving 

spouse who was receiving benefits 

under Part C of the Act at the time of 

such spouse’s death. 

* * * * * 

17. In § 725.212, republish 

introductory text of paragraph (a)(3) and 

revise paragraphs (a)(3)(i) and (a)(3)(ii) 

to read as follows: 

§ 725.212 Conditions of entitlement; 

surviving spouse or surviving divorced 

spouse. 

(a) * * * 

(3) The deceased miner either: 

(i) Is determined to have died due to 

pneumoconiosis; or 

(ii) Filed a claim for benefits on or 

after January 1, 1982, which results or 

resulted in a final award of benefits, and 

the surviving spouse or surviving 

divorced spouse filed a claim for 


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benefits after January 1, 2005 which was 

pending on or after March 23, 2010. 

* * * * * 

18. In § 725.218, republish 

introductory text of paragraph (a) and 

revise paragraphs (a)(1) and (a)(2) to 

read as follows: 

§ 725.218 Conditions of entitlement; child. 

(a) An individual is entitled to 

benefits where he or she meets the 

required standards of relationship and 

dependency under this subpart (see 

§ 725.220 and § 725.221) and is the 

child of a deceased miner who: 

(1) Is determined to have died due to 

pneumoconiosis; or 

(2) Filed a claim for benefits on or 

after January 1, 1982, which results or 

resulted in a final award of benefits, and 

the surviving child filed a claim for 

benefits after January 1, 2005 which was 

pending on or after March 23, 2010. 

* * * * * 

19. In § 725.222, republish 

introductory text of paragraph (a)(5) and 

revise paragraphs (a)(5)(i) and (a)(5)(ii) 

to read as follows: 

§ 725.222 Conditions of entitlement; 

parent, brother or sister. 

(a) * * * 

(5) The deceased miner: 

(i) Is determined to have died due to 

pneumoconiosis; or 

(ii) Filed a claim for benefits on or 

after January 1, 1982, which results or 

resulted in a final award of benefits, and 

the surviving parent, brother or sister 

filed a claim for benefits after January 1, 

2005 which was pending on or after 

March 23, 2010. 

* * * * * 

20. In § 725.309: 

a. Remove paragraph (a); 

b. Redesignate paragraphs (b) through 

(d) as paragraphs (a) through (c) and 

revise redesignated paragraph (c); 

c. Redesignate paragraphs (d)(1) 

through (d)(5) as (c)(2) through (c)(6) 

and add a new paragraph (c)(1); 

d. Remove paragraph (e); and 

e. Redesignate paragraph (f) as 

paragraph (d). 

The revision and addition read as 

follows: 

§ 725.309 Additional claims; effect of prior 

denial of benefits. 

* * * * * 

(c) If a claimant files a claim under 

this part more than one year after the 

effective date of a final order denying a 

claim previously filed by the claimant 

under this part (see § 725.502(a)(2)), the 

later claim shall be considered a 

subsequent claim for benefits. A 

subsequent claim shall be processed and 

adjudicated in accordance with the 

provisions of subparts E and F of this 

part. Except as provided in paragraph 

(1) below, a subsequent claim shall be 

denied unless the claimant 

demonstrates that one of the applicable 

conditions of entitlement (see 

§§ 725.202(d) (miner), 725.212 (spouse), 

725.218 (child), and 725.222 (parent, 

brother, or sister)) has changed since the 

date upon which the order denying the 

prior claim became final. The 

applicability of this paragraph may be 

waived by the operator or fund, as 

appropriate. The following additional 

rules shall apply to the adjudication of 

a subsequent claim: 

(1) The requirement to establish a 

change in an applicable condition of 

entitlement shall not apply to a 

survivor’s claim if the requirements of 

725.212(a)(3)(ii), 725.218(a)(2), or 

725.222(a)(5)(ii) are met, and the 

survivor’s prior claim was finally 

denied prior to March 23, 2010. 

* * * * * 

21. In § 725.418: 

a. Republish introductory text in 

paragraph (a); 

b. Revise paragraphs (a)(1) and (a)(2); 

c. Add new paragraph (a)(3); 

d. Revise paragraph (d). 

The revisions and addition read as 

follows: 

§ 725.418 Proposed decision and order. 

(a) Within 20 days after the 

termination of all informal conference 

proceedings, or, if no informal 

conference is held, at the conclusion of 

the period permitted by § 725.410(b) for 

the submission of evidence, the district 

director shall issue a proposed decision 

and order. A proposed decision and 

order is a document, issued by the 

district director after the evidentiary 

development of the claim is completed 

and all contested issues, if any, are 

joined, which purports to resolve a 

claim on the basis of the evidence 

submitted to or obtained by the district 

director. A proposed decision and order 

shall be considered a final adjudication 

of a claim only as provided in § 725.419. 

A proposed decision and order may be 

issued by the district director at any 

time during the adjudication of any 

claim if: 

(1) Issuance is authorized or required 

by this part; 

(2) The district director determines 

that its issuance will expedite the 

adjudication of the claim; or 

(3) The district director determines 

that the claimant is a survivor who is 

entitled to benefits under 30 U.S.C. 

932(l). In such cases, the district 

director may designate the responsible 

operator in the proposed decision and 

order regardless of whether the 

requirements of paragraph (d) of this 

section have been met. Any operator 

identified as liable for benefits under 

this paragraph may challenge the 

finding of liability by timely requesting 

revision of the proposed decision and 

order and specifically indicating 

disagreement with that finding. See 20 

CFR 725.419(a), (b). In such cases, the 

district director shall allow all parties 

30 days within which to submit liability 

evidence. At the end of this period, the 

district director shall issue a new 

proposed decision and order. 

* * * * * 

(d) The proposed decision and order 

shall reflect the district director’s final 

designation of the responsible operator 

liable for the payment of benefits. 

Except as provided in paragraph (a)(3) 

of this subsection, no operator may be 

finally designated as the responsible 

operator unless it has received 

notification of its potential liability 

pursuant to § 725.407, and the 

opportunity to submit additional 

evidence pursuant to § 725.410. The 

district director shall dismiss, as parties 

to the claim, all other potentially liable 

operators that received notification 

pursuant to § 725.407 and that were not 

previously dismissed pursuant to 

§ 725.410(a)(3). 

Signed at Washington, DC, this 22nd day 

of March, 2012. 

Gary A. Steinberg, 

Acting Director, Office of Workers’ 

Compensation Programs. 

[FR Doc. 2012–7335 Filed 3–29–12; 8:45 am] 

BILLING CODE 4510–CR–P 


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