Department of Labor: 62 3337 - [PDF Document] (2024)

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WednesdayJanuary 22, 1997

Part II

Department of LaborEmployment Standards Administration

20 CFR Parts 718, et al.

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

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DEPARTMENT OF LABOR

Employment Standards Administration

20 CFR Parts 718, 722, 725, 726 and727

RIN 1215AA99

Regulations implementing the Federal

Coal Mine Health and Safety Act of1969, as Amended

AGENCY: Employment StandardsAdm inistration, Labor.

ACTION: Proposed rule.

SUMMARY: The Departmen t of Laborproposes to amend theregulationsimp lementing th e Black Lun g BenefitsAct. Most of theaffected regulationsgovern the processing and adjud icationofindividu al claims filed by former coalminers and their survivingdependents,includ ing the medical criteria used toadjudicate theentitlement of those wh o

file claims and th e criteria used todetermin e wh ich of theminers formeremp loyers will be liable for the p aymentof benefits.In ad dition, the Departmen tprop oses to eliminateoutdatedregulations setting forth criteria forapp roving stateworkers compen sationprograms; to discontinue the annualpublication, in the Code of FederalRegulations, of the interimcriteriagoverning claims filed p rior to April 1,1980; and torevise the criteriagoverning the respon sibility of coalmin eoperators to secure the payment ofbenefits to their employees.

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

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

FOR FURTHER INFORMATION CONTACT:James L. DeMarce, (202) 2196692.

SUPPLEMENTARY INFORMATION: Th eDepartment last amendedtheregulations implemen ting the BlackLun g Benefits Act, 30 U.S.C.901 et seq.,in 1983, more than thirteen years ago.Since then ,litigation before the variousU.S. courts of app eals and th eBenefitsReview Board has resulted in th eclarification of manysubstantive areas.Moreover, th e Office of WorkersCompensationPrograms experience inadministering the program during thisperiod has resulted in a variety ofsuggestions for chan ge with th e goalofhelpin g to improve services, streamlinethe adjudication processand simplify

the regulations language. Thus, th eDepartment p roposes numerous changesin order to streamline, update andclarify theseprogram regulations.

Summary of Noteworthy ProposedChanges

Evidentiary Developm ent

The proposed regulations contain alimitation on the amou ntofdocumentary medical evidence partiesmay subm it. The designatedrespon siblecoal mine op erator or the Director,wh ichever party isliable, and theclaimant are limited in theiraffirmativepresentations to two completepulmonary evaluations orconsultativereports a piece. Docum entary rebuttalevidence islimited to one interpretiveopin ion with resp ect to each part ofthepu lmonary evaluation submitted by apartys opponent. Seeproposed 725.414.

The Department proposes these

chan ges in order to ensure thateligibility determinations arebased onthe best quality evidence submittedrather than on th equantity of evidencesubm itted by each side. Currently,inestablishing their eligibility to ben efits,claimants mu stconfront the vastlysup erior economic resources oftheiradversaries: coal mine op erators andtheir insu rancecarriers. Often, theseparties generate medical evidence insuchvolume th at it overwhelms theevidence supp orting entitlementthatclaimants can procure. The proposedchan ges limitingevidentiary

development attempt to make moreequitable the adjud ication ofblack lungclaims and redu ce the costs associatedwith th esecases.

The prop osed regulation alsofundamentally restructures theclaimsadjud ication process by focusingevidentiary developm ent atthe districtdirector level. The regulation requiresall parties todevelop their docum entarymedical evidence and submit it tothedistrict director for consideration. Oncea claim is referred fora hearing beforethe Office of Administrative Law Judges,additionaldocumentary medicalevidence will be admitted into therecord only ona showing ofextraordinary circum stances or if theclaimant has n otbeen p rovided with anadequate complete pulmonaryevaluation by doctors of theDepartments ch oosing. Theadministrative law judge whoconductsthe hearin g may permit the parties toelicit testimony onlyfrom a limitedgroup of witnesses, includ ing anyph ysician wh osereport was submittedto the d istrict director. The jud ge willbasehis decision on a de novo review

of the eviden tiary record d eveloped bythe district directorand th e hearingtestimony. See proposed 725.414,725.456 and725.457.

This proposed procedure d eparts fromcurrent p ractice byexcluding theadmission of most additionaldocumentary evidence whilea claim ispen din g before an admin istrative law

jud ge. Parties presently often reserve theactive development ofmedical evidenceun til a claim is referred for hearing.Permittingadditional evidentiarydevelopm ent before the adm inistrativelawjudge was logical when significantdelays occurred between thedistrictdirectors decision and the hearingbefore the administrative law judge.Such d elays no longer occur inastatistically significant percentage ofclaims. Consequen tly, thepractical needfor permitting evidentiary developmentat the hearingstage has disapp eared.

The Department believes that theseproposed procedural changesrequiringevidentiary developm ent before thedistrict director willencourage promp tand complete evidentiary developmentat theearliest stages and will th ereforeallow the Departmen t to conduct athorough and meaningful initialadjudication of each claim.TheDepartment believes that th e fair,efficient and exp editiousadjud ication ofclaims is a d esirable objective whichcan bepromoted by limiting the amountof med ical evidence developedandencouraging all parties to participateactively at the ear lieststages of theprocess.

Iden tification of Resp onsible Op erators

The p roposed regulations p rovide th ata district director maynam e one ormore poten tially liable op erators fromamong a m inersformer employers. Thepotentially liable operator that mostrecentlyemployed the claimant willgenerally be the responsible operatorliable for the p ayment of benefits. Theprop osed regulationsafford th e districtdirector con siderable flexibility,how ever, innotifying potentially liableoperators; they may be notifiedseriatimafter the d istrict director evaluates the

response from the m iners most recentemp loyer or does notreceive anyresponse. If a potentially liable operatorcontests itsidentification, it mu stsubmit docum entary evidencesup porting itsposition to the districtdirector. In cases involvin gdifficultresponsible op erator identificationissues, the districtdirector may retainmore than on e potentially liableoperator as aparty to th e case. Seeproposed 725.407 and 725.408.

The d istrict director will choose aresponsible operator fromamong the

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identified p otentially liable operatorsand will notify theparties of thisdetermin ation in his initial find ings.Thedesignated respon sible operatormu st respond to th e notice ofinitialfindin gs within 30 d ays and mustspecifically ind icatewheth er it agrees ordisagrees with the initial findingofliability. See proposed 725.410,

725.412. In th e event furtheradjudication of the claim isrequired,the d istrict director may retain as partiesto the caseother p otentially liableoperators in order to preservetheDepartments right to compel th epaym ent of benefits by therespon sibleoperator ultimately determined to beliable for theclaimants benefits. Seeproposed 725.413.

To ensure that the claiman t is notoverwhelmed byoperator-developedmed ical evidence, however, theprop osedregulations limit allpotentially liable operators and th e

designated respon sible operator to atotal of two pu lmon aryevaluations orconsu ltative reports as an affirmativecase. Becauseall of the named operatorshave an iden tical interest withrespectto the claimants eligibility, theDepartment does not believethatun fairness will result from limiting thetotal eviden cesubmitted. Thedesignated responsible operator willhave theresponsibility and, indeed, theobligation, to develop th eoperatorscase in chief on beh alf of all namedoperators. Any namedop erator, otherthan the responsible operator, mustrequest thedistrict directors perm ission

in order to sched ule the claimant for amed ical examination.This permissionmay be granted only upon a showingthat theresponsible operator has notund ertaken a full development oftheevidence. In no event will the claimantbe required to u ndergomore than twopulmonary examinations by the partiesopp osing hiseligibility. See proposed 725.414.

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

proposed 725.495, the Departmentbears the burd en of proof toidentify theresponsible operator initially foun dliable for thepayment of benefits. Inorder to carry this burden of proof,OWCPmust establish th at theresponsible operator is a potentiallyliableop erator, i.e., that it w as anoperator after Jun e 30, 1973, thatitemp loyed the min er for at least oneyear, that at least one dayof thatemp loyment occurred after December31, 1969, and th at theminer wasexposed to coal mine d ust wh ile

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

such liability.Once OWCP has met its burden of

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

liability. See proposed 725.495.If the d esignated responsibleop eratorcarries its burd en of proof andestablishes th at it wasin correctlyidentified and OWCP has failed to nameand retain as aparty the coal mineoperator ultimately found liable astheresponsible operator, the Trust Fun dwill bear liability for theclaim. In sucha case, OWCP will make no attempt toname a n ewresponsible operator andforce the claiman t once again toestablishh is entitlement to ben efits. Seeprop osed 725.407(d) allowingthedistrict director to identify and n otify aresponsible op eratoronly before a case

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

Civil Mone y Penalty

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

pen alties. They p rovide notice of theDepartments intention tomin imize thefinancial burden th at uninsu redoperators currentlyplace on thoseoperators in comp liance with th e Actssecurityrequirements and on the BlackLung Disability Trust Fun d. Seeproposed 20 CFR part 726, subp art D, 726.300726.320.

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

operators action, or in action, followingthis n otification. Seeproposed 726.302. After receipt of a notice ofpen alty assessmentand entry of a timelynotice of contest, an operator mayrequest a hearing before the Office ofAdm inistrative Law Jud ges. Seeproposed726.307. The ensuingdecision w ill address whether the

operator h as violated the Actsinsurance requirements, whetherth eind ividuals id entified by the Director aspotentiallyseverally liable for thepen alty were in fact the president,treasurer or secretary of the corporationduring the relevant timeperiod and,finally, the app ropriateness of thepenalty assessment.See proposed 726.313. The Director or any p artyaggrieved by adecision of th eadm inistrative law jud ge may petitiontheSecretary for review, which will beconducted using a substantialevidencestandard. See proposed 726.314,

726.318.The proposed regulations also imposean add itionalrequirement on self-insured operators. They require thatsuchoperators continue to secure thepaymen t of benefits to theiremployeeseven after the operator has ceasedminin g coal. This additionalrequiremen t is necessary given thelimited amou nt ofsecurity typicallyrequired of operators wh o self-insureand th eprolonged time periods aftercoal mine employm ent has ceaseddu ringwhich m iners may file claims forbenefits. See prop osed726.114(c).

Treating Physicians Opinion sThe Department prop oses a new

paragraph (d) of 20 CFR 718.104, theregulation governin greports of physicalexaminations. The proposed paragraphwou ld givecertain treating ph ysiciansopin ions controlling weight indetermining wheth er the miner is totallydisabled or died d ue topneumoconiosis. The proposedlanguage would m andate that, whenweighinga treating ph ysicians opin ion,the factfind er must consider thenatu reand duration of the relationshipbetween the min er and theph ysician,

the frequency and exten t of theph ysicians treatment, and thecredibility of the d octors opin ion inlight of his reasonin ganddocu men tation. The factfind er must alsoconsider the opin ionsconsistency withthe other relevant evidence, and th edoctorstraining and specialization.

Waiver of Overpaym ents

The Department p roposes amending 725.547(a), wh ich addressestheapp licability of overpaymen t provisionsto coal min e operatorsand their

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

Currently, only a claimant wh oreceives an overpaymen t from theBlack

Lung Disability Trust Fun d m ay berelieved of his repaymen tobligation.Such a claimant is entitled to waiver ofrecovery of theoverp ayment if he candem onstrate that permitting recoverywou lddefeat the p urp ose of the Actor be against equ ity andgoodconscience. Only th ose individ ualswh o were n ot at fault increati ng theoverpaymen t are eligible for waiver. TheDepartmenthas concluded that thesewaiver provisions shou ld be availabletoall claimants, includ ing those who areoverpaid by operators andinsurancecarriers. Thus, under the proposed

language, any individu al who hasreceived an overpayment willhave theopp ortun ity to establish that the two-part test forwaiver is met.

Establishing Total Disability and TotalDisability Due to Pneu moconiosis

Proposed 718.204 amends thedefin ition of total d isabilityandmakes explicit th e Departmentsposition w ith regard toestablishing totaldisability due to pneu moconiosis. Bothof thesechan ges reflect the d ecisions ofnu merous cou rts of app eals. Inorder tobe foun d totally d isabled , a min ermust h ave arespiratory or p ulmonary

impairment wh ich, standin g alone,prevents him from performinghis usualcoal mine employment. See proposed 718.204(b). In order toestablishentitlement, the miner mu st alsodem onstrate that histotal disability isdue to pn eumoconiosis. This showing ismad e byestablishing thatpneumoconiosis is a substantiallycontributin gcause of the totallydisabling respiratory or pulmonaryimp airment.See prop osed 718.204(c).Finally, proposed 718.204(a) alsomakesclear that a concurrent d isabilitydu e to a non respiratory or

nonp ulmonary condition will notdisqu alify the min er fromreceipt ofblack lung benefits if the m iner can alsodem onstratetotal disability due topneumoconiosis.

Additional or Subsequent Claims

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

of an add itional claim on the ground s ofthe prior den ial, bydemon strating thata change in one of the applicablecond itions ofentitlement has occurredsince the date upon w hich the orderdenying the prior claim became final.The ch anged regulatorylanguagecodifies the hold ings of several courts ofappeals.

The applicable conditions ofentitlement are limited tothoseconditions upon w hich the prior denialwas based. If the applicable cond itionsof entitlement relate to the min ersph ysicalcondition and the newevidence submitted w ith the add itionalclaimestablishes a change in at leastone applicable condition, theproposedregulation contains a rebuttablepresumption that the miners ph ysicalcond ition has changed. Once a changein anapplicable condition ofentitlement is established, none ofthefindings made in connection w ith the

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

Medical Benefits

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

of the United States Court of App eals forthe Fourth Circuit.The presumptionmay be rebutted only by evidence thatthe specificpulmonary disorder beingtreated is neither related to,noraggravated by, the minerspn eumoconiosis. The proposedregulationalso provides that evidencethat the miner does not h avepn eumoconiosis or is not totallydisabled by pneumoconiosis arising outofcoal min e employm ent, i.e., evidencewh ich challenges theminersunderlying entitlement to medicalbenefits, is insufficient tod emonstrate

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

Exp lanation of Proposed Chan ges

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

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

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

Su bstantive revisions

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

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

these regulations are explained infurther detail below.

Techn ical revisions

In addition , a number of regulationshave been revised to m akecertaintechnical changes. The prop osedregulations substitute theterm districtdirec tor for the term dep utycommissioner wh ereverit app ears.This chan ge is explained in d etail at 55FR2860428607, July 12, 1990. Theprop osed regulations also add across-reference to 725.4(d) to each regulation

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which currently contains a cross-reference to part 727. Section725.4(d)explains that although the Departmentis discontinu ingpublication of theinterim criteria set forth in 20 CFR Part727 inth e Code of Federal Regulations,part 727 remains ap plicable toall claimsfiled p rior to April 1, 1980. In add ition,certainproposed regulations have been

revised and/ or renumbered in order toconform with the currentrequirementsof the Office of the Fed eral Register. Thetext of725.453A has beenincorporated into 725.454 asparagraphs (a), (b)and (c) and 725.454has been retitled. The text of 725.459Ahas beenincorporated into 725.455 asparagraph (d). Section 725.503A hasbeenrenumbered as 725.504, and 725.504.506 have been renumbered725.505.507. Section 725.701A hasbeen renumbered 725.702, and725.702.707 have been renumbered 725.703.708. Finally, theproposed

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

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

practice withou t notice and comm ent,the Department is notacceptingcommen ts on any of these regulations.

Unchanged Regulations

Certain regulations are m erely beingrepromulgated withoutalteration andare also not open for public commen t.To the extentapprop riate, theDepartments previous exp lanations oftheseregulations, set forth in theFedera l Register , see 43 FR3677236831, Au g. 18, 1978; 48 FR 2427224294, May 31, 1983, remainap plicable.

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

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

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

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

20 CFR Par t 718Stand ar ds for

Determin ing Coal Miners TotalDisability or Death DuetoPneumoconiosis

Subpart AGeneral

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

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

Su bpart BCriteria for the Developm entof Medical Evidence

20 CFR 718.101. The curren t text of 718.101 should beredesignated as

paragraph (a), withou t furtheramendmen t, and a new paragraph(b)should be add ed. The Department hasconsistently maintained thepositionthat th e quality stand ards add ressingthe adm inistrationof certain clinicaltests and examinations app ly to allevidencedeveloped by any party inconn ection with a claim for blacklungbenefits filed after March 31, 1980. TheBenefits Review Boardhas rejected th isposition, and h eld that the standardsgovern onlythe evidence developed bythe Departmen t; for all other p arties,thestandard s are advisory. The Board hasalso held that evidencecannot berejected by th e adjud icator solely fornoncompliance withthe relevantstandard. See generally Gorzalka v. Big

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

point.The Department has also consistently

maintained that the part 718 qualitystandard s apply to part 727claims if thetest was condu cted after March 31,1980. See 20 CFR727.203(c). The Six thCircuit h as accepted this interp retationofthe regulations. Wiley v.Consolida tion Coal Co., 915 F.2d1076,1080 (6th Cir. 1990). Both the Board an dthe Seventh Circuit,however, haverejected th e Departments position.Coleman v. Ram eyCoal Co., 18 BlackLung Rep . (MB) 19, 115 (1993 );Peabody Coal Co.v. Director, OW CP

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

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

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the criterion for complian ce and p lace itin logical sequencein the regulations,language should be add ed to 718.101requiringsubstantial compliance withall the standard s. This regulationapplies generally to all the qualitystandard s, making it therationalprovision to contain the compliancerequiremen t. A singlereference in on e

regulation also eliminates repetitivelanguage from th ree otherregulationswh ile making explicit the app licabilityof the standard to the remainin g tworegulations. Finally, the ph rase[e]xceptas otherwise providedrecognizes the exem ption fromcomp liance fora deceased min er whoseonly X-ray is noncon forming, andautopsiesor biopsies of min ers whodied before March 31, 1980.

The purpose of the quality standardsis to ensu re the utilization of reliableevidence in ad judicating claims. Theeffectof non comp liance in terms of

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

20 CFR 718.102. Paragraph (e) shou ldbe reorganized in view ofthe prop osedparagraph 718.101(b) generalcompliance standard. Asnoted w ithrespect to proposed paragraph718.101(b), codifying thesubstantialcomp liance standard in th at regulationof general applicability eliminates theneed to reiterate it in eachspecificquality standard. The proposed

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

20 CFR 718.103. The last two

sentences of paragraph (a) shou ld beremoved, and th e contentof thosesentences add ed to p aragraph (c) to takeinto accoun t thechan ges to 718.101.The explanation provided foreliminating thesubstantialcompliance language in 718.102app lies with equ al forceto 718.103.Furthermore, the proposed paragraphs718.102(e) and718.103(c) operate in afunctionally equivalent mann er:bothregulations (i) presume comp liance withtechnical requirementscontained in th eapp end ices; (ii) permit rebuttal of that

presu mp tion w ith contrary eviden ce;and (iii) recognize anexception tocomp liance for claims involvingdeceased m iners andlimited evidence.Given the iden tity of pu rpose in thecurrentregulations, proposed paragraph718.103(c) mirrors proposedparagraph718.102(c) to ensu re similarinterpretation andoperation.

20 CFR 718.104. Section 718.104should be amended to m ake clearthatthe enu merated data represents theminimu m information andtesting uponwh ich a ph ysicians report can be basedif obtained incon nection with a claimfor benefits. This regulation also is thelogical provision to implemen tguidelines for the w eighing ofmedicalreports from a miners treatingphysician. Proposed paragraph(d)describes the relevant factors theadjudicator must considerindetermining whether to accordcon trollin g weight to th e treating

physicians opinion. The primaryobjective in ch anging the formatof718.104 is to clarify the requiremen tthat any ph ysicians reportdeveloped inconn ection with a claim must be basedon certain enumerated information anddata in ord er to establish orrefuteentitlement. Furthermore, the proposedregulation makes clearthe necessity forutilizing at least an x-ray and apulmonaryfunction test which satisfythe qu ality stand ards as a clinicalbasisfor a ph ysicians pulm onary diagnosis.See Director, OWCP v.Siwiec, 894 F.2d635, 639 (3d Cir. 1990) (hold ing thatph ysiciansreport which w as based on

nonconforming pulmon ary functionstud y was insufficient toprove minerwas d isabled). Finally, proposedparagraph (c) parallelssimilarprovisions in 718.102, 718.103 and718.106, wh ich perm itthe utilization ofnon conforming evidence to establishentitlementif the miner is deceased andcomp lying evidence is unavailable.Thisprovision add s the requirement that thephysician must beunavailable;otherwise, in at least some instances,the ph ysiciancould be requested toadd ress, and cure, the deficiencies inhisreport.

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

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

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

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

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

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

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

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

have examined the miner only once orreviewed only med icalrecords and testdata. Such status alone, however, is nosubstitutefor a critical analysis of boththe nature and extent of thepatient-doctor relationship and the credibilityof the opinionsubmitted by thephysician. The proposed regulationenu merates thefour basic factors inevaluating the ph ysicians relationshipwith the miner: (i) nature of relationship(pulmonary versusnon-pulmonarytreatment); (ii) duration of relationsh ip(length oftime treating the miner); (iii)frequency of treatment (num ber ofvisitsover time); and (iv) extent of treatment

(types of tests and examin ationscond ucted). Each factor willvary fromclaim to claim. Consequently, nobright-line rule can beutilized whichdefines wh en a treating physiciansopinion should begiven controllingweight.

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

from a non-treating ph ysician.Accordingly, this provision requires theadjudicator to consider the treatingphysicians opinion onits own meritsand in the context of the remainder ofthe record todetermine whetherdeference to the treating physicianisappropriate.

20 CFR 718.105. Section 718.105should be amend ed to addressstudiesadministered during the minersterminal illness. Durin g suchan illn ess,arterial blood gas stud ies may produ cequalifyingresults for reasons un related

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

the link between the qualifying scoresand th e miners chronicpulmon arycondition.

20 CFR 718.106. Paragraph (b) shou ldbe rewritten to account forthe chan gesto 718.101. Paragraph (b) is revised toutilize languagesimilar to p arallelprovisions in the other qualitystandardsprovisions, which account for thegeneral substantialcompliancestandard contained in the amended 718.101. The word noncomplyin g issubstituted for nonconforming toensu re consistentterminology in similarcirc*mstances.

20 CFR 718.107. Section 718.107should be amend ed to makeexplicit theburd en of proof a party bears todem onstrate that theproffered test orprocedure is medically acceptable.Section 718.107enables any p arty tosubm it medical evidence based on testsorprocedu res not covered by the otherprovisions of subp art B. Thisregulationperm its flexibility in accommod atingthe use ofdeveloping or futu re medicaldiagnostic techniques beyondthetraditional tests sp ecifically covered bythe quality standards.Proposedparagraph (b) emp hasizes therequiremen t that the partyproffering the

evidence mu st establish both that theevidence is based onmedicallyacceptable tests or procedures and thatthe evidence isrelevant to determinin gthe med ical issues in a ben efitsclaim.

Su bpart CDeterm ining Entitlem ent toBenefits

20 CFR 718.201. We are specificallyseeking commen t on 718.201.Theregulatory definition ofpn eum oconiosis should be revisedtoclarify the Departments position thatthis d isease is aprogressive conditionwh ich, in some instances, maybecomedetectable only after cessation of coalmine employment. Thedefinitionshou ld also reflect the inclusive natureof the disease,such th at no category ofchron ic lung disease can becategoricallyexclud ed from th e ambit ofthe definition. Two importantissueshave em erged in recen t litigationinvolving the definitionofpneumoconiosis: (i) whether thedisease includes obstructivedisorders;and (ii) whether pneumoconiosis is alatent disease whichcan p rogress afterthe cessation of du st exposure to the

poin t of clinical manifestation.Heretofore, the Departmenthasconsistently taken the position inlitigation and ru lemakingthat nospecific lun g disease could becategorically exclud ed fromth edefinition of pneumoconiosis; thus,any d isease which could bemedicallylinked to occupational dust exposure in

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

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

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

Scope of Definition

The statutory definition ofpn eum oconiosis, as implem ented by718.201, encompasses any chronicrespiratory or pulmon ary diseaseorimpairment caused by the inhalation ofcoal mine dust. See 30U.S.C. 902(b).Thus, any such d isease or impairmentwhich can belinked to occupationaldust exposure by credible medicalevidence maybe consideredpn eum oconiosis for p urp oses of that

particular claim. As such, the Actrecognizes a far broader concept of thedisease than does the med icalcommu nity; the latterconfines coalworkers pneu moconiosis to thepathologic reaction oflung tissue todu st inhalation, resulting incharacteristic patternsor m arkings onchest X-rays. See, e.g., The MerckManual ofDiagnosis and Therapy 681(15th ed . 1987); Nation al Institu teforOccupational Safety and Health,Occupational Exposu re toRespirableCoal Mine Dust 4.1.2 (1995); FreemanUnited Coal Mine Co.v. Director,

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

In the same vein, add ing the phraseany chron ic restrictive orobstructivepu lmonary disease will forecloselitigation attemptin gto narrow thedefinition on a claim-by-claim basiswith medicalopinions which excludeobstructive lung disorders from

occupation ally-related path ologies. TheNIOSH study onoccupational dustexposure contains ample m edicalauthority suggesting at least somerelationship between coal mine dustexposureand the development ofchron ic obstructive lun g disease.SeeNational Institute for OccupationalSafety and Health, Occupational

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

The Act and its regulations definepneu moconiosis broadly and don otestablish that dust exposure from coal minework can necessarilycause obstructivepulmonary d isease or impairment. * * *Rather, thefacts and med ical opinions ineach specific case answer thisquestion.

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

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

Progressive Natur e

The Department has long maintained

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

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

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

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

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

justification for permitting ad ditional or

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

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

Current medical science supports theDepartments position th atpneum oconiosis may progress. In P.Francois et al., Pneu moconiosisofDelayed Apparition: Large ScaledScreening in a Pop ulation ofRetiredCoal Miners of the Northern Coal Fieldsof France, in SeventhInternational

Pneu moconiosis Conference, Abstractsof Comm un ications 979(1988), 741 newcases of pneum oconiosis (out of 3070min ers, or 24%) were discovered inminers who did not havepneu moconiosis atretirement and wh ohad n ot been exposed to du st for at least3years. Of these 741 n ew cases, only10% had large opacities (complicatedpneumoconiosis), 69% had category 1simple pneumoconiosis,and 21% hadcategory 2 simp le pneu moconiosis.Indeed, th e auth orsspecifically reciteone examp le of a 66 year old ex-minerwh o hadretired 24 years earlier after 25

years of dust exposu re. The x-ray atretirement showed noevidence ofpneu moconiosis, but the one taken 20years later showedobviouspneu moconiosis. Thus, the authorswrite:

The coalworkers pn eumoconiosis mayappear a lon g time after theexposure tonocive [harmful] dust h as ceased. This is awellestablished fact. What we d ont know isthe frequency of such formsofpneu moconiosis of long delayed apparition.

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

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

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

miners with normal or 0/1 readings aso-p; min ers w ith 1/2 werem, n , A,B, and miners with complicatedpn eumoconiosis were delineated asC. Bates at p. 2 2. An x-ray sh owi ngopacity perfusionof 0/1 is considerednegative for pn eumoconiosis un dertheregulations. 20 CFR 718.102(b). Thus,the d ata clearly dep ictsa progressionfrom n ormal, or n egative, x-rays topositive x-rays,with the initialappearance of simple pn eumoconiosisoccurring some10 years after themin ers last dust exposu re.

Other stud ies and treatises

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

opacities without further du st exposureind icates continu edtissue reaction toinhaled d ust and progression of thedisease afterexposure, althoughincrease in overall profusion ofopacities notfound); 4A Roscoe N. Gray,Attorn eys Textbook Of Med icine,

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

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

In view of the am ple scientificsup port for theDepartmentsinterpretation of the scope and n ature ofthe definitionof pn eum oconiosis, 718.201 shou ld reflect thatinterpretationwith more specificity.

20 CFR 718.202. Paragraph (a)(2)should be amend ed to make clearthata find ing of anthracotic pigment in abiopsy procedure, withoutmore, isinsufficient to establish th e presence ofpneumoconiosis.The current regulationimposes this limitation only withrespect toan autopsy, but there is noreason to treat these two typesofevidence differently.

20 CFR 718.204. The proposedchanges to 718.204 codify severalofthe positions which the Department hastaken in litigation toclarify the m eaningof total d isability. The r egulationshou ldexp licitly reflect theDepartm ents view th at totaldisabilitymeans a totally disablingrespiratory or pu lmonary impairment.Theprop osed changes also provideguidance for establishing the degreetowhich p neumoconiosis must contributeto the min ers disablingimpairmen t; todate, the qu antification of disabilitycontributionh as been articulated solelythrough appellate decisions. Inaddition,the prop osed chan ges make clear that aminer w ho istotally disabled by acompensable respiratory condition isentitledto black lu ng benefits regardlessof any concu rrent disability bynon -

respiratory impairmen ts or diseases.Finally, the Departmen tproposes torevise the regulation to separatedisability and disability causationcriteria, unify the various p rovisionsdealingwith lay evidence, and deleteparagraph (f), which is un necessaryinview of correspondin g material in 20CFR 725.504.

Two significant ch anges have beenmade to the concept oftotaldisab ility. First, paragrap h (a) makesclear that disablingnonrespiratorycond itions are irrelevant to determin ingwh ether aminer is, or was, totallydisabled by pn eumoconiosis. Thischange makes clear the Departmentsdisagreement with the hold ing inPeabodyCoal Co. v. Vigna, 22 F.3d 1388(7th Cir. 1994). In that case, the minersuffered a d isabling stroke in 1971, andthereafter app liedfor benefits un derpart 727. He invoked the in terimpresumptionwith qualifying pulmonaryfunction eviden ce from 1979. TheSeventhCircuit held, how ever, that theoperator rebutted thepresumptionbecause the m iners disability wascaused by the stroke,wh ich was

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unrelated to coal mine du st exposureand occu rred before thequalifyingventilatory study. CompareY oughiogheny an d Oh io CoalCo. v.

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

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

The prop osed paragraph (a) doesrecognize one exception totheirrelevancy of disabling nonrespiratoryconditions in determiningwhether themin er is totally disabled bypneu moconiosis. Suchconditions ordiseases are relevant if they prod uce achronicrespiratory or p ulmonary

impairment. Some cardiac andneu rological diseases, for example, mayaffect the respiratory mu sculature insuch a w ay as to impair the individ ualsability to breathe withou t actuallyaffectingthe lungs. See, e.g., Panco v.

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

Similarly, a traumatic accident su ch asan injury to the spinalcolumn m ayaffect breathing but n ot the lun gs. Theeffect of thedisease or trauma, itsrelationship to the m iners abilitytobreathe, and the interplay with theminers pneumoconiosis, alldeterminethe con tributing causes of the min ersdisability.

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

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

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

pneum oconiosis must contribute to theminers disability. Severalcourts haveaddressed the issue, and formulatedvariousstandards:Robinson v. Pickands

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

Alabama By-Products, 893 F.2d 1258,1265 (11th Cir. 1990) (substantia lcontr ibut ing factor);Adams v. Director,OWCP, 886 F.2d818, 825 (6th Cir. 1989)(disability du e at least in parttopneumoconiosis);Bonessa v. UnitedStates Steel Corp., 884 F.2d726, 733 (3dCir. 1989) (sub stantial contr ibut or);

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

The Department has conclud ed that a

single standard shou ld be articulated toeliminate needlessconfusion andlitigation over the relationsh ip betw eena miners pneumoconiosis and h isdisability. The Department h as selectedthesubstantially contributing causelanguage because it ensures atangibleand actual contribution ; a moredemandin g standard w ouldbe tooharsh, especially wh en m any minerssuffer from a multiplicity of respiratoryproblems. Moreover, thesubstantiallycontributing cause standard mirrorsthe criteria forprovin g thatpneum oconiosis contributed to the

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

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

by definition, contribute to thedisability).

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

throu gh lay eviden ce. The last sentenceof current paragraph(c)(5) makes clearthat provin g disability through clinicaltests orphysicians reports does n otnecessarily prove thatpneumoconiosiscaused th e disability. This provisiontherefore underscores the differencebetween d isability and d isabilitycausationas separate elements ofentitlement. This p oint is sufficientlyimportant to warrant placement in aseparate paragraph asprop osedparagraph (c)(2). Finally, cu rrentparagraph (f) isdeleted because itsimply d up licates 20 CFR 725.504 to the

extent that both provisions preclud e aworking m iner fromreceiving benefitsunless the award is based on a findingofcomplicated pneumoconiosis.

20 CFR 718.205. The Department hastaken the position that pneumoconiosiscauses the min ers death if the diseaseis either theactual cause of death orhastens death to an app reciableextent.This in terpretation of the p hrase deathdu e to pn eumoconiosis shou ld bemad e explicit in the regulation. Und erthe1981 amen dm ents to the BLBA, adeceased min ers survivor wh ofiled aclaim on or after January 1, 1982, iseligible for benefitsonly if

pneumoconiosis caused, or contributedto, the miners death. TheDepartmen tadd ed paragraph (c) to 718.205 toimplementcongressional intent thatpneu moconiosis must p lay a role intheminers death in ord er to entitle asurvivor to benefits. Basedon thelegislative history of th e 1981amendmen ts, the Departmentconcludedthat the d isease must be at least asubstantiallycontributing cause of theminers death. See 48 FR 2427624277,May 31,1983, 718.205Discussion an dchanges (h)(n). In ord er togivepractical meaning to that phrase, the

Department has consistently argued inlitigation that the medical evidencemu st at least prove that th e minerspneu moconiosisactually h astened hisdeath. Four courts of appeals havedeferred toth e agencys interp retation ofthe regulation.Brown v. RockCreek

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

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

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(3d Cir. 1989). The Ben efits ReviewBoard has refused to ad opttheDepartments position, but h as notarticulated an alternativestandard . See,e.g., Tackettv. Armco, Inc., 16 BlackLun g Rep. (MB)188, 193 (1992),vacated on rem and17 Black Lung Rep.(MB) 1103, 1104 (1993). In ord er toensu re consistent app lication of asingle

legal stand ard, paragraph (c) of 718.205 should be amended byaddingprop osed p aragraph (c)(5), wh ichcodifies the Departmen tsviews.

Subpart DPresumptions Applicable toEligibility Determinations

20 CFR 718.301. Paragraph (b) shou ldbe removed because a new definition ofyear is ad ded to 20 CFR 725.101(a).Paragraph (a) of718.301 should beamend ed to make reference to proposed725.101(a)(32) and its requiremen ts.Section 718.301 is one oftworegulations which currently defineyear for determ inin g the length of amin ers occupation al history; the otherregulation is 20CFR 725.493(b)(identifying responsible op erator). TheDepartmenthas conclud ed that a singleregulatory definition with program-wideapplication should replace the twocurrent regulations.Determinin g thelength of a miners occupational h istoryis the sameinqu iry for establishingeligibility for presu mp tions asforidentifying a responsible operator, and asingle standard shouldap ply in bothcases.

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

of 718.307(a) to 20 CFR 725.103.Paragraph (a) contains m aterialwhichconcerns any claim filed und er theBLBA, and not just claimsgoverned bythe p art 718 medical criteria.Accordingly, the contentsof paragraph(a) will be removed from part 718 an dplaced in725.103. See proposed 725.103. Paragraph (b) effectivelydup licatesnew p roposed 725.103,which more broadly describes theburd en ofproof. This language shouldtherefore be removed.

Su bpart EMiscellaneous Provisions

20 CFR 718.401. Remove 718.401because it du plicates proposed725.406. Current 718.401 recognizeseach m iners statutory right toacomplete pulmonary evaluation at theDepartments expen se. See 30 U.S.C.923(b). This regulation also auth orizesboth the min er andthe district directorto develop additional medical evidence.Section718.401 du plicates material inthe cross-referenced regulations, 20CFR 725.405 and 725.406; the part 725regulations haveprogram-wideapp licability. Consequen tly, no need

exists for includ ing this regulation inpart 718.

20 CFR 718.402. Remove the firstsentence of 718.402 and addtheremaind er of this provision to proposed 725.414(a)(3)(iii).Section 718.402describes the consequ ences of aclaimants failure tocooperate in thedevelopment of medical evidenceneed ed toadjudicate the claim. Thisprovision duplicates the substance ofproposed 725.414(a)(3)(iii), wh ichdeals with a claimantsunreasonablerefusal to submit to medicalexaminations an d testing.Section718.402 also penalizes the claimant wh orefuses to provide acomp lete healthhistory or perm it access to medicalrecords. Thisasp ect of the regulationwill be add ed to proposed 725.414.Giventhe overlapp ing purp oses of thetwo regulations, 718.402 shouldberemoved from p art 718 in favor ofproposed 725.414, which hasprogram-wide applicability.

20 CFR 718.403. Remove 20 CFR718.403 from p art 718 and add topart725. Section 718.403 codifies theburden of proof imposed on anypartyalleging any fact in sup port of itsposition u nd er part 718.The parties toa claim, however, are required to provea variety offacts un der p art 725 whichalso bear on entitlement issues,e.g.,status as a miner ( 725.202);depend ency and relationship(725.2047 25.228); liability as arespon sible operator (subpart G);andentitlement to m edical benefits (subp artJ). Part 725 d oes notcontain acoun terpart to 718.403. Accordingly, asingle provisiongenerally allocating theparties burd ens of proof under th eBLBAlogically should be placed in part725, the regulations withprogram-wideapplicability. See proposed 725.103.

20 CFR 718.404. Remove 20 CFR718.404 from p art 718 and move topart725. Section 718.404(a) makes explicit amin ers obligation toinform th eDepartment and the responsibleoperator, if any, if heresu mes w ork ina coal mine or comparable and gainfulwork. Areturn to such work requiresthe termination of benefits unlessthemin ers award is based on com plicatedpneumoconiosis. See 20 CFR725 .504(c).Paragraph (b) reiterates theDepartments authority toreopen afinally approved claim during thelifetime of the miner anddevelopmedical eviden ce if the particularcirc*mstances so warrant. Bothprovisions are m ore logically placed inpart 725 asregulations of program-wideapplicability. See proposed 725.203(c)and (d).

Append ix B to Part 718

Appendix B to Part 718, 2(ii). Th etechnical requiremen ts fortheadministration of pulmonary functionstudies should be amended toprecludetaking the initial inspiration from theopen air. Thequality stand ardscurrently permit an ind ividualperforming apulmon ary function studyto take the initial inspiration fromeitherthe open air or the testing machine. Theproposed regulationeliminates thischoice. Open air inspiration is notrecorded on thespirogram, whichdocu men ts the performance of thetest.Consequently, the validity of such aninitial inspirationcannot beindependently verified by a reviewingph ysician. Becauseless than op timuminspiration will p rodu ce a false lowresult,such tests may yield erroneouslyabnormal values. The open-airinspiration op tion therefore mu st beeliminated in ord er toensu re that the

validity of every pulm onary functionstudy can be independ entlyascertained.

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

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

App end ix C to Part 718. Appendix Cshould be amend ed tospecify thatarterial blood gas stud ies should n ot becond ucted durin g, or shortly after, aminers acute respiratory illness.Suchstudies are likely to produce spu riousvalues wh ich are notind icative of theminers true cond ition.

20 CFR Part 722Criteria forDetermin ing Whether Sta te Workers

Compensation Laws Provide AdequateCoverage for Pneum oconiosisandListing of Appr oved State Laws

Section 421 of the Black LungBenefits Act requires th eSecretary ofLabor to publish in the Federa l Registera list of allstates wh ose workerscompen sation laws provide adequ atecoveragefor occup ation alpn eum oconiosis. 30 U.S.C. 931(a). Thepu rposeof this provision was to allowstates to assume resp onsibilityforprovid ing compensation to former coal

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

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

The Act provid es that a state may beinclud ed on the Secretaryslist only ifits provisions governin g benefitamounts, entitlementstandards, statuteof limitations, and p rior and su ccessoroperatorliability are substantiallyequivalent to those contained in theAct. 30 U.S.C. 931(b)(2). In add ition, th eSecretary may promulgate add itionalregulations to ensu re adequatecomp ensation fortotal disability ordeath d ue to pneu moconiosis. 30 U.S.C.

931(b)(2)(F). The Secr etary firstpromulgated regulations und erthisauthority on March 12, 1971, andamended those regulations onMarch 30,1973 in light of changes to theLongshore and HarborWorkersCompensation Act in 1972. 38 FR 8238,March 30, 1973. Theseregulations,codified at 20 CFR part 722, have n otbeen amen dedsince 1973. In light of thesubsequen t statutory changes made bytheBlack Lun g Benefits Reform Act of1977 and the Black LungBenefitsAmendm ents of 1981, the cu rrentregulations areobsolete.

The Department h as recently

conclud ed a review of all of theregulations implemen ting theAct, andhas determined that the continuedpu blication of thesecriteria in th e Codeof Federal Regulations is no longerrequired.Accordingly, rather thanamend the regulations to reflect thecurrentlaw, the Departmen t intends tosimply d elete the specific criteriaandreplace them with a general statementthat in the future, uponapp lication ofany state, the Department w ill reviewthe statesworkers compen sation law inlight of the curren t Act todeterminewhether the state law provides adequate

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

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

used in the statute. No substantivealteration in the statutoryterm isintended.

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

Subpart AGeneral

20 CFR 725.1. Section 725.1 providesa broad overview of thevarious parts ofthe Black Lun g Benefits Act (BLBA), theamendm entsthereto, and theincorporation of the Longshore andHarbor WorkersComp ensation Act(LHWCA). The Department p roposes toamend thisregulation to include acomp arable reference to th e SocialSecurity Act, 42 U.S.C. 301 et seq.,provisions of which arealsoincorporated into Parts A, B and C of theBLBA. The BLBA is actually th reestatutes in on e. The Act itself issubch apter IV of theMine Safety and

Health Act, chapter 30 of the Un itedStates Code. Part C of theAct, wh ich th eDepartment adm inisters, alsoincorporates man yprovisions of theLHWCA, 33 U.S.C. 901 et seq. Congressauth orizedthe Departmen t to vary theterms of the incorp oratedLHWCAprovisions by regulation, and th eDepartment has done so wh enthespecial requirements of the black lun gbenefits program dictated the variance.Congress also incorporated parts of theSocialSecurity Act into Parts A and Bof the BLBA. Congress on ceagainauthorized the Department to adopt an d

mod ify the Part B provisions to theextent app ropriate for usein th eadm inistration of Part C. Accordin gly,725.1 should beamended to includ e abrief description of the Social SecurityActincorporation comp arable to thepresent d iscussion of theLHWCAincorporation.

20 CFR 725.2. For an explanation ofthe ch anges to paragraph(b), see theexplanation of the changes to 725.4.Paragraph (c)should be add ed toexplain th e applicability of theseregulatoryrevisions to pen din g claimsand to claims filed after theeffectivedate of the revised regulations. TheDepartment intendsthat the p roposedrevisions annou nced in this Notice willapp ly tothe adjudication of all claimsfor benefits und er the BlackLungBenefits Act pen din g with theDepartment on th e date theserevisionsgo into effect, to the extent th at suchapplication isconsistent with theDepartments authority u nd er the BlackLungBenefits Act and with the efficientadm inistration of the p rogram.TheDepartment consid ers a claim to bepen din g if the claim has not yet been

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

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

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

Hospital, 488 U.S. 204, 208 (1988). TheBlack Lung Benefits Actdoes n otcontain such an express grant.Accordingly, the Departmentsability toissue rules of retroactive applicationiscirc*mscribed.

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

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

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

One examp le of an attemp t to regulate

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

Hospital. In 1983, th e U.S. District Courtfor the District ofColumbia hadinvalidated a 1981 HHS regulationgoverning hospitalreimbursem*n t forfailure to provide n otice and anopp ortun ity tocommen t. In 1984, HHSreissued th e regulation following noticeandcomm ent, and attempted to make itretroactive to 1981. The Sup remeCourtinvalidated th e second regulation as anunau thorized attemptto p romulgate aretroactive regulation. At the oth er end

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

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

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claims filed un der the Act. Thoserevisions, which establishproceduresfor enforcing the general obligation ofcoal mine operators to secure thepaym ent of benefits und er the Act, willbemade effective immediately up onpu blication of the final rule, andwillgovern all subsequen t penaltyassessments.

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

the law accordin g to the agency is andhas alw ays been: It isno m oreretroactive in its operation th an is a

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

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

The second , and largest, group ofrevisions are those amend ingParts 718and 725, wh ich govern the adjudicationof claims forbenefits filed by min ersand th eir survivors, as well as thepayment of benefits in approved claims.A nu mber of the revisions alterthe

procedures to be used in adjudication,includ ing those relatedto processing ofclaims by the d istrict director, theadjudicationof claims before the Officeof Admin istrative Law Judges,responsible operator issues, andsubsequen t claims. Thesechanges,how ever, significantly alter the p artiesobligations andexpectations, forexample, by limiting eviden ce,creatingpresumptions, and establishing burd ensof proof.Accordingly, despite theDepartments authority underGeorgetownUniversity Hospital an d

Landgrafto issue procedural rules thattake effect immed iately,the Departmentprop oses to app ly the revised versionsof theregulations governin g those topicsonly to claims filed after theeffectivedate of the amen dm ents. Because theremainin g revisionsm erely clarify theDepartments interp retation of thecurrent Actand regulations, theDepartment intend s to app ly them to allclaimsp ending with the Department,and to the paym ent of all benefitsthatbecome du e and payable, or that remainun paid, after theeffective date of theserevisions.

20 CFR 725.4(d). In 1978, Congressrequired the Department ofLabor toprom ulgate interim en titlement criteriathat w ere no more restrictive thancriteria used to adjudicate claims thathad beenfiled w ith the Social SecurityAdm inistration un der Part B oftheBlack Lung Benefits Act. These interimcriteria were to be usedun til the

Department could d evelop p ermanentcriteria. The in terim part727regulations were publish ed at 43 FR36818, Aug. 18, 1978.Because theDepartments perman ent part 718criteria took effect onApril 1, 1980, see20 CFR 718.2, the p art 727 regulationsapp lyonly to claims filed before thatdate. The Department estimatesthatseveral hu nd red part 727 claims remainpen din g in variousstages ofadjud ication. Because the p arties tothese claims arequite familiar with th estandard s for establishing eligibilityunder part 727, and n o new claims will

be adjudicated u nder these standards,the Department intend s todiscontinuethe annu al publication of part 727 in th eCode ofFederal Regulations. Thosestandard s will remain in effect forallclaims to which th ey apply. Partiesinterested in reviewing part727 mayconsu lt earlier editions of the Code ofFederal Regulationsor th e FederalRegister in w hich the regulations w ereoriginallypublished.

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

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

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

20 CFR 725.101(a)(13), Coal

Preparation; (a)(19), Miner or CoalMiner. The regulation shouldbeamend ed to reflect the Departmen tsposition th at co*ke ovenworkers are notcovered by th e BLBA. The Departmen thas long takenthe position that theprep aration activities un dertaken atco*keovens are not covered by theBLBA. This position reflects Congressunderstand ing of the scope of coverageintend ed by the statutorydefinition ofminer. 30 U.S.C. 902(d). See S.Rep.No. 209, 95th Cong., 1st Sess. 21 (May16, 1977) (Nor do es [the d efinition ]

include such individuals not d irectlyrelated to the produ ctionof coal such asco*ke oven wor kers.); 123 Congression alRecord24,236 (1977) (Sen. Randolp h:* * * co*ke oven workers are notincluded in the d efinition.). See alsoFox v. Director, OWCP, 889 F.2d1037(11th Cir. 1989); Sexton v. Matthews,538 F.2d 88 (4th Cir.1976). This

clarifying language ensures th at thedefin ition s of coal prepar ation andmin er or coal m iner do n otencomp ass activitiesinvolving thecommercial produ ction of co*ke, wh ichis outside theextraction andtransportation processes.

20 CFR 725.101(a)(16).DistrictDirector. The p roposed changemerelyconforms the regulation to currentadministrative practice,and ensuresthat any action taken by, or in the nameof, a districtdirector shall be given fullcredit as the action of a deputycommissioner.

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

20 CFR 72 5.101(a)(31). Wo rkersCompensation Law. Thisdefinitionshould be amend ed to make clear thatcertain benefitspaid from a statesgeneral revenu es are not workerscompensation payments for pu rposes ofthe BLBA. The BLBA requires theDepartmentto offset a claimants federalbenefits by any ben efits receivedfrom a

state pursuan t to a workerscompen sation law for disability ordeathdu e to pneu moconiosis. 30 U.S.C.932(g). Since the Acts inception, th eDepartment h as considered p aymentsmad e to disabledmin ers by a state fromgeneral revenu es to be exclud edfrombenefits afforded by workerscompen sation laws. Both th eThirdCircuit an d th e Benefits Review Board,how ever, haverejected th e Departmentsposition. OBrockta v. Eastern

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

54 F.3d 14 1 (3d Cir. 1995). The Boardheld that 932(g) clearlyrefers toworkers compensation law withoutregard to the sou rce offund ing for thepaymen ts. The Third Circuit rejectedthis reasoningbut agreed that theDepartments position w as wrong. TheCourt heldthat 932(g) is ambiguous,but that th e Departmen ts policyimpermissibly implies limitations oncurrent 725.101(a)(4) whichareinconsistent with the u nequivocallanguage of the regulation.The Courtsuggested that the Department amen d

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

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

occupation al history. In 1978 and 1980,the Department promulgated regulationswhich adopted the current 125-day rule.20 CFR725.493(b), 718.301(b). Therationale for this policy decisionisexplained in detail in th e commentsaccompan ying the finalregulations. 43FR 36804, Aug. 18, 1978, 725.493,

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

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

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

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

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

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

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

relationship ( 725.204725.228);liability as a resp onsible operator(subpart G); and entitlemen t to medicalbenefits (subpart J).Part 725 d oes n otcontain a counterpart to 718.403.Accordingly, asingle provisiongenerally allocating the p arties burd ensof proofunder the BLBA logicallyshould be placed in part 725 sincethose

regulations have program-wid eapplicability.

Su bpart BPersons Entitled to Benefits,Conditions, and Durationof Entitlem ent

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

Dowdv. Director, OWCP, 846 F.2d 193(3d Cir. 1988). In keepin gwith th atliberal construction, this regulationshould be amended tocreate arebuttable presumption that anyind ividual workin g at acoal mine orcoal preparation facility is a miner. Thepresumption isground ed in commonsense: the vast majority of personsworkin g at acoal min e will ordinarilyhave du ties related to theminingprocesses of coal extraction an d/ orpreparation. Thispresump tion can berebutted by evidence that the individualis notactually p erformin g work integralto the extraction or preparation of coal,or the ind ividuals work involves onlycasualcontact with the coal mineoperation. The structure of theregulationshould also be chan ged todistinguish sp ecial provisionsrelatingto transportation and constructionworkers. Of special noteis th e fact that

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

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

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

removed, and the language clarified toconform to 725.503.

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

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

20 CFR 725.204, .214. Sections725.204 and 725.214 shou ldbeamend ed to recognize the coexistingeligibility of both aqualified spou se and

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