ESA, Proposed Rule, Regulations Implementing the Federal Coal

Wednesday January 22, 1997 Part II Department of Labor Employment Standards Administration 20 CFR Parts 718, et al. Regulations Implementing the Federal Coal Mine Health and Safety Act of 1969, as Amended; Proposed Rule federal register 3337 3338 Federal Register / Vol. 62, No. 14 / Wednesday, January 22, 1997 / Proposed Rules DEPARTMENT OF LABOR the regulations' language. Thus, the of the evidentiary record developed by Department proposes numerous changes the district director and the hearing Employment Standards Administration in order to streamline, update and testimony. See proposed §§ 725.414, clarify these program regulations. 725.456 and 725.457. 20 CFR Parts 718, 722, 725, 726 and This proposed procedure departs from 727 Summary of Noteworthy Proposed current practice by excluding the Changes RIN 1215±AA99 admission of most additional Evidentiary Development documentary evidence while a claim is pending before an administrative law Regulations implementing the Federal The proposed regulations contain a judge. Parties presently often reserve the Coal Mine Health and Safety Act of limitation on the amount of active development of medical evidence 1969, as Amended documentary medical evidence parties until a claim is referred for hearing. may submit. The designated responsible AGENCY: Employment Standards Permitting additional evidentiary coal mine operator or the Director, Administration, Labor. development before the administrative whichever party is liable, and the ACTION: Proposed rule. law judge was logical when significant claimant are limited in their affirmative delays occurred between the district SUMMARY: The Department of Labor presentations to two complete director's decision and the hearing proposes to amend the regulations pulmonary evaluations or consultative before the administrative law judge. implementing the Black Lung Benefits reports a piece. Documentary rebuttal Such delays no longer occur in a Act. Most of the affected regulations evidence is limited to one interpretive statistically significant percentage of govern the processing and adjudication opinion with respect to each part of the claims. Consequently, the practical need of individual claims filed by former coal pulmonary evaluation submitted by a for permitting evidentiary development miners and their surviving dependents, party's opponent. See proposed at the hearing stage has disappeared. including the medical criteria used to § 725.414. The Department believes that these adjudicate the entitlement of those who The Department proposes these proposed procedural changes requiring file claims and the criteria used to changes in order to ensure that evidentiary development before the determine which of the miner's former eligibility determinations are based on district director will encourage prompt employers will be liable for the payment the best quality evidence submitted and complete evidentiary development of benefits. In addition, the Department rather than on the quantity of evidence at the earliest stages and will therefore proposes to eliminate outdated submitted by each side. Currently, in allow the Department to conduct a regulations setting forth criteria for establishing their eligibility to benefits, thorough and meaningful initial approving state workers' compensation claimants must confront the vastly adjudication of each claim. The programs; to discontinue the annual superior economic resources of their Department believes that the fair, publication, in the Code of Federal adversaries: coal mine operators and efficient and expeditious adjudication of Regulations, of the interim criteria their insurance carriers. Often, these claims is a desirable objective which governing claims filed prior to April 1, parties generate medical evidence in can be promoted by limiting the amount 1980; and to revise the criteria such volume that it overwhelms the of medical evidence developed and governing the responsibility of coal evidence supporting entitlement that encouraging all parties to participate mine operators to secure the payment of claimants can procure. The proposed actively at the earliest stages of the benefits to their employees. changes limiting evidentiary process. development attempt to make more DATES: Comments must be submitted on Identification of Responsible Operators or before March 24, 1997. equitable the adjudication of black lung claims and reduce the costs associated The proposed regulations provide that ADDRESSES: All comments concerning with these cases. a district director may name one or these proposed regulations should be The proposed regulation also more ``potentially liable operators'' from addressed to James L. DeMarce, fundamentally restructures the claims among a miner's former employers. The Director, Division of Coal Mine adjudication process by focusing potentially liable operator that most Workers' Compensation, Room C±3520, evidentiary development at the district recently employed the claimant will Frances Perkins Building, 200 director level. The regulation requires generally be the responsible operator Constitution Ave., N.W., Washington, all parties to develop their documentary liable for the payment of benefits. The DC 20210. medical evidence and submit it to the proposed regulations afford the district FOR FURTHER INFORMATION CONTACT: district director for consideration. Once director considerable flexibility, James L. DeMarce, (202) 219±6692. a claim is referred for a hearing before however, in notifying potentially liable SUPPLEMENTARY INFORMATION: The the Office of Administrative Law Judges, operators; they may be notified seriatim Department last amended the additional documentary medical after the district director evaluates the regulations implementing the Black evidence will be admitted into the response from the miner's most recent Lung Benefits Act, 30 U.S.C. 901 et seq., record only on a showing of employer or does not receive any in 1983, more than thirteen years ago. extraordinary circumstances or if the response. If a potentially liable operator Since then, litigation before the various claimant has not been provided with an contests its identification, it must U.S. courts of appeals and the Benefits adequate complete pulmonary submit documentary evidence Review Board has resulted in the evaluation by doctors of the supporting its position to the district clarification of many substantive areas. Department's choosing. The director. In cases involving difficult Moreover, the Office of Workers' administrative law judge who conducts responsible operator identification Compensation Programs' experience in the hearing may permit the parties to issues, the district director may retain administering the program during this elicit testimony only from a limited more than one potentially liable period has resulted in a variety of group of witnesses, including any operator as a party to the case. See suggestions for change with the goal of physician whose report was submitted proposed §§ 725.407 and 725.408. helping to improve services, streamline to the district director. The judge will The district director will choose a the adjudication process and simplify base his decision on a de novo review responsible operator from among the Federal Register / Vol. 62, No. 14 / Wednesday, January 22, 1997 / Proposed Rules 3339 identified potentially liable operators working for the operator. In addition, in operator's action, or inaction, following and will notify the parties of this any case in which the designated this notification. See proposed determination in his initial findings. responsible operator is not the miner's § 726.302. After receipt of a notice of The designated responsible operator most recent employer, the record must penalty assessment and entry of a timely must respond to the notice of initial include a statement that OWCP has notice of contest, an operator may findings within 30 days and must investigated its files and has determined request a hearing before the Office of specifically indicate whether it agrees or that it has no record that a more recent Administrative Law Judges. See disagrees with the initial finding of employer insured its liability under the proposed § 726.307. The ensuing liability. See proposed §§ 725.410, Act, or was authorized to self-insure decision will address whether the 725.412. In the event further such liability. operator has violated the Act's adjudication of the claim is required, Once OWCP has met its burden of insurance requirements, whether the the district director may retain as parties proof, the burden shifts to the individuals identified by the Director as to the case other potentially liable designated responsible operator. The potentially severally liable for the operators in order to preserve the operator may avoid liability for the penalty were in fact the president, Department's right to compel the claim only if it establishes: (1) that it is treasurer or secretary of the corporation payment of benefits by the responsible not financially capable of assuming during the relevant time period and, operator ultimately determined to be liability for the claim; or (2) that one of finally, the appropriateness of the liable for the claimant's benefits. See the miner's more recent employers penalty assessment. See proposed proposed § 725.413. meets all of the criteria for a potentially § 726.313. The Director or any party To ensure that the claimant is not liable operator. The burden imposed on aggrieved by a decision of the overwhelmed

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