[Federal Register Volume 77, Number 62 (Friday, March 30, 2012)]
[Proposed Rules]
[Pages 19456-19478]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-7335]



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Vol. 77

Friday,

No. 62

March 30, 2012

Part III





Department of Labor





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Office of Workers' Compensation Programs





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20 CFR Parts 718 and 725





 Regulations Implementing the Byrd Amendments to the Black Lung 
Benefits Act: Determining Coal Miners' and Survivors' Entitlement to 
Benefits; Proposed Rule

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

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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.

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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 derivative-survivor-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.
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions on the Web site for submitting comments.
    <bullet> 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.
    <bullet> 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.
    <bullet> 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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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 Sec.  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 Sec.  
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 Sec.  718.1(a) because the information it provides is either 
contained in other regulations or is no longer relevant to current 
claims. Current Sec.  718.1(a)'s list of statutory provisions that 
comprise the Act is also contained in proposed Sec.  725.1(a). 
Similarly, current Sec.  718.1(a)'s discussion of the conditions 
necessary for establishing entitlement to benefits duplicates 
information contained in current Sec. Sec.  725.202, 725.212, 725.218 
and 725.222. Although the Department is proposing to revise Sec. Sec.  
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 Sec.  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 Sec. Sec.  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 
Sec.  718.2.
    Other sentences in current Sec.  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 Sec.  718.1(a), and re-designates the paragraph 
as Sec.  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 Sec.  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 Sec.  718.1(a), 
the first sentence in proposed Sec.  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 Sec.  718.1(a) is omitted because it is a reference to the 
method of survivor entitlement found in Sec.  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 Sec.  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 
Sec.  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 Sec.  718.1(b).
20 CFR 718.2 Applicability of This Part
    Current Sec.  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 
Sec.  718.204(a), which applies only to claims filed after January 19, 
2001. The third sentence of current Sec.  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 Sec.  718.2 states that the 
provisions of Part 718 should be construed together in the adjudication 
of claims.
    Proposed Sec.  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 Sec.  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 Sec.  718.306. It further reflects the 
Department's proposal to cease publication of other statutory 
presumptions and criteria for

[[Page 19459]]

establishing entitlement available only to claims filed before January 
1, 1982. See discussion under Sec. Sec.  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 Sec.  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 Sec.  718.2 into 
three paragraphs. Proposed Sec.  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 Sec.  718.204(a) applies only to 
claims filed after January 19, 2001. See 68 FR 69930, 69933 (Dec. 15, 
2003). Proposed Sec.  718.2(a) also contains new language that briefly 
describes the contents of Part 718. Proposed Sec.  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 
Sec.  718.2(c) retains the fourth sentence of current Sec.  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 Sec.  718.3(a) 
includes a reference to partial disability in connection with a claim 
subject to Sec.  718.306, which implements the Section 411(c)(5) 
statutory presumption. The proposed rule discontinues publication of 
Sec.  718.306 because it is obsolete: It applies only to claims filed 
prior to June 30, 1982. See discussion under Sec.  718.306. Thus, 
proposed Sec.  718.3(a) removes the reference to Sec.  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 Sec.  718.202(a)(3) lists the 
presumptions that, when invoked, allow the existence of pneumoconiosis 
to be presumed; the list includes Sec.  718.306. The proposed rule 
discontinues publication of Sec.  718.306 because it is obsolete: It 
applies only to claims filed prior to June 30, 1982. See discussion 
under Sec.  718.306. Thus, proposed Sec.  718.202(a)(3) removes the 
reference to Sec.  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 
Sec.  718.205 to clarify that some survivors need not prove the miner 
died due to pneumoconiosis to be entitled to benefits given the ACA-
revived Section 422(l) derivative-entitlement 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 Sec.  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 Sec.  
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 Sec.  718.205 accurately reflects the statute.
    The Department proposes to cease publication of current Sec.  
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 Sec.  718.2.
    Current Sec.  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 Sec.  
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 Sec.  718.205 will no longer contain 
criteria for claims filed before 1982. Moreover, Sec.  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 Sec.  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

[[Page 19460]]

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 Sec.  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 Sec.  718.305, which is the regulation that implements 
Section 411(c)(4) of the Act. See discussion under Sec.  718.305.
    Third, proposed Sec.  718.205(b) retains the thrust of current 
Sec.  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 Sec.  718.205(b)(5). Fourth, 
proposed Sec.  718.205(b) retains current Sec.  718.205(c)(5) (defining 
pneumoconiosis as a ``substantially contributing cause'' when it 
``hastens the miner's death)'' and redesignates it as Sec.  
718.205(b)(6).
    Finally, the Department proposes to cease publication of current 
Sec.  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, Sec.  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 Sec.  725.418(a) to provide for expedited consideration of 
survivor claims governed by Section 422(l). See discussion under Sec.  
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 Sec.  
718.301 lists those presumptions; the list includes Sec. Sec.  718.303 
and 718.306. The proposed rule discontinues publication of both 
Sec. Sec.  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 Sec. Sec.  718.303 and 718.306. Thus, proposed Sec.  
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 Sec.  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 Sec.  718.2.
20 CFR 718.305 Presumption of Pneumoconiosis
    Current Sec.  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, Sec.  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 Sec.  718.305 contains effective dates that are no longer 
accurate in light of the ACA amendments. Accordingly, proposed Sec.  
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 Sec.  718.305(e), however, specifically limits the 
applicability of the presumption to claims filed prior to January 1, 
1982. The Department has deleted Sec.  718.305(e) from the proposed 
rule because it is no longer accurate. Instead, proposed Sec.  
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 Sec.  
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

[[Page 19461]]

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 Sec.  718.2.
Invocation
    Proposed Sec.  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 Sec.  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 Sec.  
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 Sec.  718.204, except that Sec.  
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 Sec. Sec.  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 Sec.  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 Sec.  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 non-underground 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 non-underground 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 Sec.  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 Sec.  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 Sec.  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 Sec.  718.305(c) provides 
that the existence of a totally disabling respiratory or pulmonary 
impairment must be established under the criteria contained in Sec.  
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 
Sec.  718.305(b)(1)(iii) continues to cross-reference Sec.  718.204 as 
the means to establish a totally disabling respiratory impairment using 
medical evidence. It specifically excludes, however, Sec.  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 Sec. Sec.  718.305(b)(3) and (b)(4).
    Proposed Sec.  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 Sec.  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 Sec.  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 Sec.  718.204(d)(5) and is equally relevant to establishing a 
totally disabling respiratory or pulmonary impairment pursuant to Sec.  
718.305.
    Current Sec.  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

[[Page 19462]]

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 Sec.  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 Sec.  718.204(d)(3) implements this restriction on 
lay evidence for miners' claims filed after January 1, 1982, Sec.  
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 Sec.  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 Sec.  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 Sec.  718.204(d)(3) and is equally relevant to 
establishing the existence of a totally disabling respiratory or 
pulmonary impairment under Sec.  718.305.
The Presumptions Invoked
    Current Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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

[[Page 19463]]

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 Sec.  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 Sec.  718.201.
    Proposed Sec.  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 Sec.  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 Sec.  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 Sec.  
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 
Sec.  718.305 presumption requires that connection between disability 
and coal mine employment be ruled out). Thus, in order to rebut the 
presumption under Sec.  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 Sec.  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 Sec.  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 Sec.  727.203(b)(3) and current 
Sec.  718.305(d) create identical rebuttal standards). Courts have 
interpreted Sec.  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 Sec.  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 Sec.  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 Sec.  
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 Sec.  718.305(c)(2). Thus, proposed Sec.  
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 Sec.  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 Sec.  
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 Sec.  718.305(d)(3) retains the language found in 
current Sec.  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 Sec.  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 Sec.  
718.305(c)(3)

[[Page 19464]]

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 Sec.  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 Sec.  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 Sec.  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 Sec. Sec.  718.204 and 
718.305 as methods of establishing total disability. That 
characterization is accurate with regard to Sec.  718.204, which sets 
forth the methods by which total disability may be established. But it 
is misleading with regard to Sec.  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, Sec.  718.305 
expressly states that total disability must be established pursuant to 
Sec.  718.204. See discussion under Sec.  718.305. Given that a 
claimant seeking to invoke the Sec.  718.305 presumption must establish 
total disability under Sec.  718.204, there is no basis for Appendix 
C's characterization of Sec.  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 Sec.  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 Sec.  725.1(a) adds BLCARA and the ACA to the list of 
statutes that comprise the Act. The proposed rule also streamlines 
Sec.  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 Sec.  725.1(a) refers the reader to Sec.  725.201, which 
describes who is entitled to benefits under the Act. Finally, proposed 
Sec.  725.1(a) substitutes the term ``subchapter IV'' for ``title IV'' 
in the current provision. This is a technical change made throughout 
proposed Sec.  725.1 to conform the regulation to the Act's current 
codification.
    Current Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  725.1(c) because it is 
obsolete.
    Current Sec.  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

[[Page 19465]]

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 
Sec.  725.1(c) combines and clarifies these statements in a new 
sentence. Proposed Sec.  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 Sec.  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 Sec.  725.1(e).
    Current Sec.  725.1(f) describes changes made by the Black Lung 
Benefits Reform Act of 1977. The Department proposes to redesignate 
this provision as Sec.  725.1(d) and make three revisions to promote 
clarity and eliminate outdated information. First, the opening clause 
of current Sec.  725.1(f) refers to changes outlined in current 
Sec. Sec.  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, Sec.  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 Sec.  
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 Sec.  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 
Sec.  718.306, the presumption's implementing regulation. See 
discussion under Sec.  718.306. Thus, the Department proposes to 
discontinue publication of current Sec.  725.1(f)(5) because it is 
obsolete.
    Current Sec.  725.1(g) addresses the Black Lung Benefits Revenue 
Act of 1977. The proposed rule redesignates this provision as Sec.  
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 Sec.  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 Sec.  725.1(h) refers to changes outlined in 
current Sec.  725.1(a). This statement is no longer accurate given the 
revisions proposed to Sec.  725.1(a). Thus, the proposed rule 
eliminates this clause.
    Second, current Sec.  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 Sec.  
718.303. Thus, the Department proposes to discontinue publication of 
current Sec.  725.1(h)(2) because it is obsolete.
    Third, current Sec. Sec.  725.1(h)(3) and (h)(5) could be 
misleading in light of the ACA amendments. Current Sec.  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 Sec.  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 Sec. Sec.  725.1(f)(2) 
and (f)(4) clarify this change and provide a cross-reference to Sec.  
725.1(i), which, as proposed, discusses the ACA amendments.
    Current Sec.  725.1(i) addresses the Black Lung Benefits Revenue 
Act of 1981. The proposed rule redesignates this provision as Sec.  
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 Sec.  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 Sec.  
725.1(h) reflects their repeal.

[[Page 19466]]

    Similarly, proposed Sec.  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 Sec.  725.1(i) reflects these 
changes.
    Current Sec.  725.1(j) addresses the incorporation into the Act of 
certain provisions of the Longshore and Harbor Workers' Compensation 
Act. Proposed Sec.  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 Sec.  
725.1(j) omits the current rule's reference to Sections 415 and 435 of 
the Act. Proposed Sec.  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 Sec.  
725.1(j). In addition, one grammatical change is proposed to clarify 
the phrase ``time definite of traumatic injury or death.''
    Finally, current Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  
718.2; see also Sec. Sec.  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 
Sec.  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 Sec. Sec.  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 Sec.  725.101(a)(1) defines the term ``the Act'' 
and current Sec.  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 Sec.  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 
Sec.  725.1(a). Proposed Sec.  725.101(a)(1) defines the Act simply by 
reference to its popular title and statutory citation. Further, current 
Sec.  725.101(a)(2) refers to the Longshore Act as the ``Longshoremen's 
and Harbor Workers' Compensation Act.'' Proposed Sec.  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 Sec.  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 Sec.  725.201 to remove provisions that are either obsolete or 
are duplicated in other regulations, and to edit it for clarity.
    Proposed Sec.  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 Sec.  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 Sec. Sec.  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 Sec. Sec.  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 Sec. Sec.  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 Sec.  
725.201, are placed in separate provisions in proposed Sec. Sec.  
725.201(a)(2) and (3). Current Sec.  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 Sec.  
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 
Sec.  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 
Sec.  718.306 because it is obsolete: It applies only to claims filed

[[Page 19467]]

before June 30, 1982. See discussion under Sec.  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 Sec. Sec.  718.2; 725.2.
    Current Sec. Sec.  725.201(c) and (d) are retained and redesignated 
as Sec. Sec.  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 Sec.  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 Sec. Sec.  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 Sec.  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 Sec. Sec.  
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 Sec.  725.2.
    Proposed Sec.  725.212(a)(3)(i) retains one condition of 
entitlement from current Sec.  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 
Sec.  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 effective-
date 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 
Sec. Sec.  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 Sec. Sec.  725.212(a)(3)(i) and (a)(3)(ii). For 
the reasons expressed in the discussion accompanying proposed Sec.  
725.212, the proposed rule revises these provisions and adds a new 
condition of entitlement made applicable by the ACA amendments. Thus, 
proposed Sec. Sec.  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 Sec. Sec.  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 Sec. Sec.  
725.212(a)(3)(i) and (a)(3)(ii). For the reasons expressed in the 
discussion accompanying proposed Sec.  725.212, the proposed rule omits 
current Sec. Sec.  725.222(a)(5)(i) and (a)(5)(ii), and adds the same 
new condition of entitlement as in proposed Sec.  725.212(a)(3)(ii) to 
implement the ACA amendments. Thus, proposed Sec. Sec.  
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 Sec.  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

[[Page 19468]]

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 Sec.  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 Sec.  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 Sec.  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 Sec.  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 Sec.  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, ------ F.3d ------, 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, Sec.  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 Sec.  725.309(c) because the subsequent claim asserts the same 
cause of action as the prior denied claim. The remaining paragraphs 
included within current Sec.  725.309(d) are redesignated as Sec. Sec.  
725.309(d)(2)-(d)(6), respectively.
    Although amended Section 422(l) applies to subsequent survivor 
claims, nothing in the ACA authorizes re-opening 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 Sec.  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 Sec.  725.309(d), as well as current 
Sec. Sec.  725.309(b), (c), and (f), have been retained in the proposed 
rule and redesignated as Sec. Sec.  725.309(a) through (d).

[[Page 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, Sec.  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 Sec.  725.418(a)(3) allows an operator to do so by 
filing a request for revision under the procedures set forth in current 
Sec. Sec.  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 entitled-miner'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 Sec.  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 Sec.  725.418 to include 
an explicit exception to the normal district director adjudication 
procedures for derivative-entitlement 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 Sec.  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 Sec.  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 Sec.  725.418(a)(2), the Director has not applied this 
paragraph in claims awarded under amended Section 422(l). Proposed 
Sec.  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.

[[Page 19470]]

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, ------ F.3d ------, 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 ten-year 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

[[Page 19471]]

costs for insurance (or benefits if self-insured) 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) re-
establishes 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 self-
effectuating, 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,

[[Page 19472]]

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/table-small-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 worst-case 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.

[[Page 19473]]

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 Sec.  
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 Sec.  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

[[Page 19474]]

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 re-filed, 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 Sec.  725.309 on coal 
mine operators is mitigated in two ways. First, an existing rule limits 
retroactive benefit payments in any awarded re-filed 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 foreign-based 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 Sec.  718.1 to read as follows:


Sec.  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 Sec.  718.2 to read as follows:


Sec.  718.2  Applicability of this part.

    (a) With the exception of the second sentence of Sec.  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 Sec.  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 Sec.  718.3(a) to read as follows:


Sec.  718.3  Scope and intent of this part.

    (a) This part sets forth the standards to be applied in determining 
whether a

[[Page 19475]]

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 Sec.  718.202(a)(3) to read as follows:


Sec.  718.202  Determining the existence of pneumoconiosis.

    (a) * * *
    (3) If the presumptions described in Sec. Sec.  718.304 or 718.305 
are applicable, it shall be presumed that the miner is or was suffering 
from pneumoconiosis.
* * * * *
    6. Revise Sec.  718.205 to read as follows:


Sec.  718.205  Death due to pneumoconiosis.

    (a) Benefits are provided to eligible survivors of a miner whose 
death was due to pneumoconiosis. In order to receive benefits based on 
a showing of death due to pneumoconiosis, a claimant must prove that:
    (1) The miner had pneumoconiosis (see Sec.  718.202);
    (2) The miner's pneumoconiosis arose out of coal mine employment 
(see Sec.  718.203); and
    (3) The miner's death was due to pneumoconiosis as provided by this 
section.
    (b) 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 Sec.  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 Sec.  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 Sec.  718.301 to read as follows:


Sec.  718.301  Establishing length of employment as a miner.

    The presumptions set forth in Sec. Sec.  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 Sec.  718.303.


Sec.  718.303  [Reserved]

    9. Revise Sec.  718.305 to read as follows:


Sec.  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 
Sec.  718.204, except that Sec.  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 Sec.  718.306.


Sec.  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 Sec.  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 Sec.  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

[[Page 19476]]

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 Sec.  725.1 to read as follows:


Sec.  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 
Sec.  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.

[[Page 19477]]

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 coal-mine 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 Sec.  725.2, revise paragraphs (a) and (b) to read as 
follows:


Sec.  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 Sec.  725.101, revise paragraphs (a)(1) and (a)(2) to read 
as follows:


Sec.  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 Sec.  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:


Sec.  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 Sec.  725.212, republish introductory text of paragraph 
(a)(3) and revise paragraphs (a)(3)(i) and (a)(3)(ii) to read as 
follows:


Sec.  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

[[Page 19478]]

benefits after January 1, 2005 which was pending on or after March 23, 
2010.
* * * * *
    18. In Sec.  725.218, republish introductory text of paragraph (a) 
and revise paragraphs (a)(1) and (a)(2) to read as follows:


Sec.  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 Sec.  725.220 and Sec.  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 Sec.  725.222, republish introductory text of paragraph 
(a)(5) and revise paragraphs (a)(5)(i) and (a)(5)(ii) to read as 
follows:


Sec.  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 Sec.  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:


Sec.  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 Sec.  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 Sec. Sec.  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 Sec.  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:


Sec.  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 Sec.  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 Sec.  
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 Sec.  725.407, and the opportunity to submit additional 
evidence pursuant to Sec.  725.410. The district director shall 
dismiss, as parties to the claim, all other potentially liable 
operators that received notification pursuant to Sec.  725.407 and that 
were not previously dismissed pursuant to Sec.  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