Black Lung Benefits Act: Disclosure of Medical Information and Payment of Benefits, 23743-23754 [2015-09573]

Agencies

• DEPARTMENT OF LABOR
• Office of Workers' Compensation Programs

[Federal Register Volume 80, Number 82 (Wednesday, April 29, 2015)]
[Proposed Rules]
[Pages 23743-23754]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-09573]


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DEPARTMENT OF LABOR

Office of Workers' Compensation Programs

20 CFR Part 725

RIN 1240-AA10


Black Lung Benefits Act: Disclosure of Medical Information and 
Payment of Benefits

AGENCY: Office of Workers' Compensation Programs, Labor.

ACTION: Notice of proposed rulemaking; request for comments.

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SUMMARY: The Department is proposing revisions to the Black Lung 
Benefits Act (BLBA) regulations to address several procedural issues 
that have arisen in claims processing and adjudications. To protect a 
miner's health and promote accurate benefit determinations, the 
proposed rule would require parties to disclose all medical information 
developed in connection with a claim for benefits. The proposed rule 
also would clarify that a liable coal mine operator is obligated to pay 
benefits during post-award modification proceedings and that a 
supplemental report from a physician is considered merely a 
continuation of the physician's earlier report for purposes of the 
evidence-limiting rules.

DATES: The Department invites written comments on the proposed 
regulations from interested parties. Written comments must be received 
by June 29, 2015.

ADDRESSES: You may submit written comments, identified by RIN number 
1240-AA10, by any of the following methods. To facilitate receipt and 
processing of comments, OWCP encourages interested parties to submit 
their comments electronically.
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions on the Web site for submitting comments.
     Facsimile: (202) 693-1395 (this is not a toll-free 
number). Only comments of ten or fewer pages, including a Fax cover 
sheet and attachments, if any, will be accepted by Fax.
     Regular Mail: Submit comments on paper, disk, or CD-ROM to 
the Division of Coal Mine Workers' Compensation Programs, Office of 
Workers' Compensation Programs, U.S. Department of Labor, Room C-3520, 
200 Constitution Avenue NW., Washington, DC 20210. The Department's 
receipt of U.S. mail may be significantly delayed due to security 
procedures. You must take this into consideration when preparing to 
meet the deadline for submitting comments.
     Hand Delivery/Courier: Submit comments on paper, disk, or 
CD-ROM to Division of Coal Mine Workers' Compensation Programs, Office 
of Workers' Compensation Programs, U.S. Department of Labor, Room C-
3520, 200 Constitution Avenue NW., Washington, DC 20210.
    Instructions: All submissions received must include the agency name 
and the Regulatory Information Number (RIN) for this rulemaking. All 
comments received will be posted without change to https://www.regulations.gov, including any personal information provided.
    Docket: For access to the docket to read background documents or 
comments received, go to https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Michael Chance, Director, Division of 
Coal Mine Workers' Compensation, Office of Workers' Compensation 
Programs, U.S. Department of Labor, 200 Constitution Avenue NW., Suite 
N-3520, Washington, DC 20210. Telephone: 1-800-347-2502. This is a 
toll-free number. TTY/TDD callers may dial toll-free 1-800-877-8339 for 
further information.

SUPPLEMENTARY INFORMATION:

I. Background of This Rulemaking

    The BLBA, 30 U.S.C. 901-944, provides for the payment of benefits 
to coal miners and certain of their dependent survivors on account of 
total disability or death due to coal workers' pneumoconiosis. 30 
U.S.C. 901(a); Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 5 
(1976). Benefits are paid by either an individual coal mine operator 
that employed the coal miner (or its insurance carrier), or the Black 
Lung Disability Trust Fund. Director, OWCP v. Bivens, 757 F.2d 781, 783 
(6th Cir. 1985). The Department has undertaken this rulemaking 
primarily to resolve several procedural issues that have arisen in 
claims administration and adjudication. Each of these issues is fully 
explained in the Section-By-Section Explanation below.

II. Summary of the Proposed Rule

A. General Provisions

    The Department is proposing several general revisions to advance 
the goals

[[Page 23744]]

set forth in Executive Order 13563. 76 FR 3821 (Jan. 18, 2011). That 
Order states that regulations must be ``accessible, consistent, written 
in plain language, and easy to understand.'' Id.; see also E.O. 12866, 
58 FR 51735 (Sept. 30, 1993) (Agencies must draft regulations that are 
``simple and easy to understand, with the goal of minimizing the 
potential for uncertainty and litigation arising from such 
uncertainty.''). Accordingly, the Department proposes to remove the 
imprecise term ``shall'' throughout those sections it is amending and 
substitute ``must,'' ``must not,'' ``will,'' or other situation-
appropriate terms. These changes are designed to make the regulations 
clearer and more user-friendly. See generally Federal Plain Language 
Guidelines, https://www.plainlanguage.gov/howto/guidelines. In some 
instances, the Department has also made minor technical revisions to 
these sections to comply with the Office of the Federal Register's 
current formatting requirements. See, e.g., proposed Sec.  
725.414(a)(2)(ii) (inserting ``of this chapter'' after reference to 
Sec.  718.107). No change in meaning is intended.

B. Section-by-Section Explanation

20 CFR 725.310 Modification of awards and denials.
    Section 725.310 implements section 22 of the Longshore and Harbor 
Workers' Compensation Act (Longshore Act or LHWCA), 33 U.S.C. 922, as 
incorporated into the BLBA by section 422(a) of the Act, 30 U.S.C. 
932(a). Section 22 generally allows for the modification of claim 
decisions based on a mistake of fact or a change in conditions up to 
one year after the last payment of benefits or denial of a claim. The 
Department proposes several revisions to this regulation to ensure that 
responsible operators (and their insurance carriers) fully discharge 
their payment obligations while pursuing modification.
    While modification is a broad remedy available to responsible 
operators as well as claimants, a mere request for modification does 
not terminate an operator's obligation to comply with the terms of a 
prior award, or otherwise undermine the effectiveness, finality, or 
enforceability of a prior award. See Vincent v. Consolidated Operating 
Co., 17 F.3d 782, 785-86 (5th Cir. 1994) (enforcing award despite 
employer's modification request); Williams v. Jones, 11 F.3d 247, 259 
(1st Cir. 1993) (same); Hudson v. Pine Ridge Coal Co., No. 11-00248, 
2012 WL 386736, *5 (S.D. W.Va. Feb. 6, 2012) (same); see also National 
Mines Corp. v. Carroll, 64 F.3d 135, 141 (3d Cir. 1995) (``[A]s the DOL 
points out in its brief, `as a general rule, the mere existence of 
modification proceedings does not affect the finality of an existing 
award of compensation.' ''); Crowe ex rel. Crowe v. Zeigler Coal Co., 
646 F.3d 435, 445 (7th Cir. 2011) (Hamilton, J., concurring) (``If 
Zeigler Coal believed the June 2001 award of benefits was wrong, it was 
entitled to seek modification. But Zeigler Coal was not legally 
entitled simply to ignore the final order of payment.''). Thus, an 
operator must continue to pay any benefits due under an effective award 
even when seeking to overturn that award through a section 22 
modification proceeding.
    The plain language of the Act and its implementing regulations 
support this conclusion. An operator is required to pay benefits 
``after an effective order requiring the payment of benefits''--
generally an uncontested award by a district director or any award by 
an administrative law judge, the Benefits Review Board, or a reviewing 
court--even if the operator timely appeals the effective award. 20 CFR 
725.502(a)(1); see also 33 U.S.C. 921(a), as incorporated by 30 U.S.C. 
932(a). There is only one exception to an operator's obligation to pay 
benefits owed under an effective award: The Board or a reviewing court 
may issue a stay pending its resolution of an appeal based on a finding 
that ``irreparable injury would otherwise ensue to the employer or 
carrier.'' 30 U.S.C. 921(a)(3), (c); see also 20 CFR 725.482(a), 
725.502(a)(1). Otherwise, an effective award requires payment until it 
is (1) ``vacated by an administrative law judge on reconsideration,'' 
(2) ``vacated . . . upon review under section 21 of the LHWCA, by the 
Benefits Review Board or an appropriate court,'' or (3) ``superseded by 
an effective order issued pursuant to Sec.  725.310.'' 20 CFR 725.502. 
Notably absent from this list is a request for modification pursuant to 
Sec.  725.310. Thus, only an administrative or judicial order relieves 
the operator of the obligation to pay benefits, even if the operator 
continues to contest the award. The operator may not terminate the 
obligation unilaterally.
    Despite this clear authority, some operators obligated to pay 
benefits to claimants (and to repay the Black Lung Disability Trust 
Fund for interim benefit payments) by the terms of effective or final 
awards have refused to comply with those obligations, claiming that a 
subsequent modification request excuses their non-compliance. See, 
e.g., Crowe, 646 F.3d at 447 (Hamilton, J., concurring); Hudson, 2012 
WL 386736, *3. In addition to being contrary to the unanimous weight of 
the courts of appeals and the plain text of the controlling statutory 
and regulatory provisions, the practice has a number of negative 
consequences.
    First, it prevents claimants from timely receiving all the benefits 
to which they are entitled. If an operator fails to comply with the 
terms of an effective award, the Black Lung Disability Trust Fund pays 
benefits to the claimant in the operator's stead. See 20 CFR 
725.522(a). But, in any claim filed after 1981, the Trust Fund is 
statutorily prohibited from paying retroactive benefits, i.e., benefits 
owed for the period of time between the entitlement date specified in 
the order (typically the date the miner filed his or her claim or the 
date of the miner's death) and the initial determination that the 
claimant is entitled to benefits. 26 U.S.C. 9501(d)(1)(A)(ii). These 
retroactive benefits are sometimes substantial, and an operator's 
failure to pay them while pursuing modification imposes a similarly 
substantial burden on the claimant. See Crowe, 646 F.3d at 446 (``[T]he 
effect of Zeigler Coal's decision to disobey the final payment order 
[while it pursued modification for ten years] was to deny Mr. Crowe the 
$168,000 in back benefits to which he had been found entitled.'')
    The Act currently provides two mechanisms for claimants to enforce 
these liabilities. Section 21(d) of the Longshore Act, 33 U.S.C. 
921(d), as incorporated into the BLBA by section 422(a) of the Act, 30 
U.S.C. 932(a), and implemented by 20 CFR 725.604, provides for the 
enforcement of final awards. And section 18(a) of the Longshore Act, 33 
U.S.C. 918(a), as incorporated into the BLBA by section 422(a) of the 
Act, 30 U.S.C. 932(a), and implemented by 20 CFR 725.605, does the same 
for effective awards. These remedies are, however, imperfect. Even if 
the previous award is final, section 21(d) still requires the claimant 
to file an enforcement action in federal district court to secure 
compliance with the award, a substantial barrier for unrepresented 
claimants. And even for represented claimants, the process can be a 
source of substantial delay. For example, the district court's order 
enforcing a final award under section 21(d) in Nowlin v. Eastern 
Associated Coal Corp., 266 F. Supp. 2d 502 (N.D. W.Va. 2003), was 
issued more than two years after the complaint was filed, and the 
consequent attorney's fee dispute took another seven months to resolve. 
Such delays should be minimized where possible to ensure prompt

[[Page 23745]]

compensation for claimants. A claimant seeking to enforce an effective 
but non-final award faces the same barriers, plus the additional 
hurdles of section 18(a)'s one-year limitations period and its 
requirement to obtain a supplemental order of default from the district 
director.
    Second, the practice improperly shifts financial burdens from the 
responsible operator to the Trust Fund contrary to Congress's intent. 
Congress created the Trust Fund in 1978 to assume responsibility for 
claims for which no operator was liable or in which the responsible 
operator defaulted on its payment obligations. But Congress intended to 
``ensure that individual coal operators rather than the trust fund bear 
the liability for claims arising out of such operator's mines, to the 
maximum extent feasible.'' S. Rep. No. 95-209 at 9 (1977), reprinted in 
Committee on Education and Labor, House of Representatives, 96th Cong., 
Black Lung Benefits Reform Act and Black Lung Benefits Revenue Act of 
1977 at 612 (Comm. Print) (1979). Thus, operators are required to 
reimburse the Trust Fund for all benefits it paid to a claimant on the 
operator's behalf under an effective or final order. See 30 U.S.C. 
934(b); 20 CFR 725.522(a), 725.601-603.
    This intent is undermined if an operator does not pay benefits or 
reimburse the Trust Fund while seeking to modify an effective award. 
One of the few events that terminates an effective order is being 
``superseded by an effective order issued pursuant to Sec.  725.310.'' 
20 CFR 725.502(a)(1). Thus, if an operator evades its obligation to pay 
benefits under the terms of an effective or final order until it 
successfully modifies that order under Sec.  725.310, the operator may 
entirely evade its obligation to pay benefits (or to reimburse the 
Trust Fund for paying benefits on the operator's behalf) under the 
initial order. Moreover, because Sec.  725.310(d) allows only certain 
benefits paid under a previously effective order to be recovered 
(generally only benefits for periods after modification was requested), 
the Trust Fund will be unable to recoup benefits paid prior to that 
date from the claimant. And the Trust Fund's right to recover the 
remaining overpayment is of little practical value in many cases given 
that claimants may be entitled to waiver of overpayments by operation 
of Sec. Sec.  725.540-548.
    Section 725.502's requirement that operators pay benefits owed 
under the terms of effective (as well as final) awards is designed to 
place these overpayment recovery risks where they properly belong: On 
the operator who, if successful, has the same overpayment recoupment 
rights as the Trust Fund. See 65 FR 80009-80011 (explaining rationale 
for Sec.  725.502); 20 CFR 725.547 (extending overpayment provisions to 
operators and their insurance carriers). The tactic of refusing to pay 
benefits owed while seeking modification threatens to transfer this 
risk to the Trust Fund, essentially rewarding operators that behave 
lawlessly and encouraging others to do the same. See Crowe, 646 F.3d at 
446-47.
    To deal with this recurring problem, the Department proposes adding 
new paragraph (e) to Sec.  725.310. Proposed paragraphs (e)(1) and (2) 
provide that an operator's request to modify any effective award will 
be denied unless the operator proves that it has complied with all of 
its obligations under that award, and any other currently effective 
award (such as an attorney fee award) in the claim, unless payment has 
been stayed. By incorporating Sec.  725.502(a)'s definition of 
effective award, the proposed regulation clarifies that an operator is 
not required to prove compliance with formerly effective awards that 
have been vacated either on reconsideration by an administrative law 
judge, or on appeal by the Board or a court of appeals, or that have 
been superseded by an effective modification order.
    Proposed paragraph (e)(3) integrates the requirements of paragraph 
(e)(1) into the overall modification procedures outlined by Sec.  
725.310(b)-(c). The Department anticipates that compliance with the 
requirements of outstanding effective awards will be readily apparent 
from the documentary evidence in most cases and that any non-compliance 
with those obligations will be easily correctable by the operator based 
on that evidence. Accordingly, paragraph (e)(3) encourages the parties 
to submit all documentary evidence at the earliest stage of the 
modification process (i.e., during proceedings before the district 
director) by forbidding the admission of any new documentary evidence 
addressing the operator's compliance with paragraph (e)(1) at any 
subsequent stage of the litigation absent extraordinary circumstances. 
The Department intends that the term ``extraordinary circumstances'' in 
this context be understood the same way that the identical term has 
been applied in cases governed by Sec.  725.456(b)(1). See, e.g., 
Marfork Coal Co. v. Weis, 251 F. App'x 229, 236 (4th Cir. 2007) 
(operator failed to demonstrate ``extraordinary circumstances'' 
justifying late submission of evidence under Sec.  725.456(b)(1) where 
evidence was not ``hidden or could not have been located'' earlier).
    Proposed paragraph (e)(4) clarifies that an operator has a 
continuing obligation to comply with the requirements of effective 
awards during all stages of a modification proceeding. The Department 
believes that imposing an affirmative obligation on operators to 
continually update the administrative law judge, Board, or court 
currently adjudicating its modification request about every continuing 
payment required by previous awards would be unduly burdensome on both 
operators and adjudicators. When an operator's non-compliance is 
brought to an adjudication officer's attention, however, the 
adjudicator must issue an order to show cause why the operator's 
modification petition should not be denied. Because the issue will be 
the operator's compliance with paragraph (e)(1) at the time of the 
order rather than at the time it requested modification, evidence 
relevant to this issue will be admissible even in the absence of 
extraordinary circumstances. In addition, to avoid the burden of a 
minor default resulting in the denial of modification, paragraph (e)(4) 
gives the operator an opportunity to cure any default identified by the 
Director or claimant before the modification petition is denied.
    Proposed paragraph (e)(5) clarifies that the denial of a 
modification request on the ground that the operator has not complied 
with its obligations under previous effective awards will not prejudice 
the operator's right to make additional modification requests in that 
same claim in the future. At the time of that future request, of 
course, the operator must satisfy all modification requirements, 
including Sec.  725.310(e).
    Finally, proposed paragraph (e)(6) makes these requirements 
applicable only to modification requests filed on or after the 
effective date of the final rule. Making the rule applicable 
prospectively avoids any administrative difficulties that could arise 
from applying the rule's requirements to pending modification requests.
20 CFR 725.413 Disclosure of Medical Information
    The Department proposes a new provision that requires the parties 
to disclose all medical information developed in connection with a 
claim. Currently, parties to a claim are free to develop medical 
information to the extent their resources allow and then select from 
that information those pieces they wish to submit into evidence, 
subject to the evidentiary limitations set out in Sec.  725.414. See 20

[[Page 23746]]

CFR 725.414. Medical information developed but not submitted into 
evidence generally remains in the sole custody of the party who 
developed it unless an opposing party obtains the information through a 
formal discovery process.
    Experience has demonstrated that miners may be harmed if they do 
not have access to all information about their health, including 
information that is not submitted for the record. Claimants who do not 
have legal representation are particularly disadvantaged because 
generally they are unfamiliar with the formal discovery process and 
thus rarely obtain undisclosed information. Moreover, benefit decisions 
based on incomplete medical information are less accurate. These 
results are contrary to the clear intent of the statute.
    One recent case, Fox v. Elk Run Coal Co., 739 F.3d 131 (4th Cir. 
2014), aptly demonstrates these problems. Mr. Fox worked in coal mines 
for more than thirty years. In 1997, a chest X-ray disclosed a mass in 
his right lung. A pathologist who reviewed tissue collected from the 
mass during a 1998 biopsy diagnosed an inflammatory pseudotumor. Acting 
without legal representation, Mr. Fox filed a claim for black lung 
benefits in 1999. The responsible operator submitted radiologists' 
reports and opinions from four pulmonologists, all concluding that Mr. 
Fox did not have coal workers' pneumoconiosis. The operator had 
developed additional medical information, however--opinions from two 
pathologists who reviewed the 1998 biopsy tissue and other records and 
then authored opinions supporting the conclusion that Mr. Fox had 
complicated pneumoconiosis, an advanced form of the disease. But the 
operator did not submit the pathologists' reports into the record, 
provide them to Mr. Fox, or share them with the pulmonologists it 
hired. An administrative law judge denied Mr. Fox's claim in 2001. To 
support his family, Mr. Fox continued to work in the mines, where he 
was exposed to additional coal-mine dust.
    Mr. Fox left the mines in 2006 at the age of 56 because his 
pulmonary capacity had diminished to the point he could no longer work. 
He filed a second claim for benefits that same year. This time he was 
represented by counsel, who successfully obtained discovery of the 
medical information that the responsible operator had developed in 
connection with Mr. Fox's first claim but had not disclosed. This 
additional information included the pathologists' opinions and X-ray 
interpretations showing that Mr. Fox had complicated pneumoconiosis. 
The operator did not disclose any of these documents, despite an order 
from an administrative law judge, until 2008. Mr. Fox died in 2009 
while awaiting a lung transplant.
    Had Mr. Fox received the responsible operator's pathologists' 
opinions in 2000 when they were authored, he could have sought 
appropriate treatment for his advanced pneumoconiosis five or six years 
sooner than he did. He also could have made an informed decision as to 
whether he should continue in coal mine employment, where he was 
exposed to additional coal-mine dust. Or, he might have transferred to 
a position in a less-dusty area of the mine. See 30 U.S.C. 943(b). 
Finally, if the pathology reports the operator obtained had been 
available, Mr. Fox's first claim might have been awarded; indeed, the 
operator conceded entitlement when ordered to disclose this 
information.
    Mr. Fox's case highlights the longstanding problem claimants face 
in obtaining a full picture of the miner's health from testifying and 
non-testifying medical experts as well as examining and non-examining 
physicians. See, e.g., Lawyer Disciplinary Board v. Smoot, 716 SE.2d 
491 (W. Va. 2010); Belcher v. Westmoreland Coal Co., BRB No. 06-0653, 
2007 WL 7629355 (Ben. Rev. Bd. May 31, 2007) (unpublished); Cline v. 
Westmoreland Coal Co., 21 Black Lung Rep. 1-69 (Ben. Rev. Bd. 1997).
    Ensuring that a miner has access to information about his or her 
health is consistent with the primary tenet of the Mine Safety and 
Health Act (Mine Act). Congress expressly declared that ``the first 
priority and concern of all in the coal or other mining industry must 
be the health and safety of its most precious resource--the miner.'' 30 
U.S.C. 801(a). This priority informs the Secretary's administration of 
the BLBA--including adoption of appropriate regulations--because 
Congress placed the BLBA in the Mine Act.
    By requiring disclosure, the rule also protects parties who do not 
have legal representation. Virtually without exception, coal mine 
operators are represented by attorneys in claims heard by 
administrative law judges. But claimants cannot always obtain legal 
representation. The Department estimates that approximately 23 percent 
of claimants appear before administrative law judges without any 
representation, and some of those claimants who have representation are 
represented by lay persons. Unrepresented claimants and lay 
representatives are generally unfamiliar with technical discovery 
procedures and thus do not pursue any information not voluntarily 
disclosed by the operator. And even when represented, not all attorneys 
use available discovery tools. Thus, making full disclosure mandatory 
will put all parties on equal footing, regardless of representation and 
regardless of whether they request disclosure of all medical 
information developed in connection with a claim.
    Finally, allowing parties fuller access to medical information may 
lead to better, more accurate decisions on claims. Elevating 
correctness over technical formalities is a fundamental tenant of the 
BLBA. Subject to regulations of the Secretary, the statute gives the 
Department explicit authority to depart from technical rules: 
adjudicators ``shall not be bound by common law or statutory rules of 
evidence or by technical or formal rules of procedure . . . but may 
make such investigation or inquiry or conduct such hearing in such 
manner as to best ascertain the rights of the parties.'' 33 U.S.C. 
923(a), as incorporated by 30 U.S.C. 932(a). See also 20 CFR 
725.455(b). This statutory provision evidences Congress's strong 
preference for ``best ascertain[ing] the rights of the parties''-- in 
other words, getting to the truth of the matter--over following the 
technical formalities associated with regular civil litigation. Full 
disclosure of medical information is therefore consistent with 
Congressional intent. Indeed, the current regulations require the miner 
to provide the responsible operator authorization to access his or her 
medical records. See 20 CFR 725.414(a)(3)(i)(A).
    An incorporated provision of the Social Security Act provides 
additional authority for proposed Sec.  725.413. See 30 U.S.C. 923(b), 
incorporating 42 U.S.C. 405(a). As incorporated into the BLBA, section 
205(a) of the Social Security Act, 42 U.S.C. 405(a), gives the 
Department wide latitude in regulating evidentiary matters pertaining 
to an individual's right to benefits. Specifically, the Department is 
vested with ``full power and authority to make rules and regulations 
and to establish procedures, not inconsistent with the provisions of 
this subchapter, which are necessary or appropriate to carry out such 
provisions, and [to] adopt reasonable and proper rules and regulations 
to regulate and provide for the nature and extent of the proofs and 
evidence and the method of taking and furnishing the same in order to 
establish the right to benefits.'' Section 205(a) has been construed as 
granting ``exceptionally broad authority to prescribe standards'' for 
proofs and evidence. Heckler v.

[[Page 23747]]

Campbell, 461 U.S. 458, 466 (1983) (quoting Schweiker v. Gray Panthers, 
453 U.S. 34, 43 (1981)). The proposed rule honors these tenets.
    The proposed rule sets out both requirements for the disclosure of 
medical information and sanctions that may be imposed on parties that 
do not comply with the rule. Proposed Sec.  725.413(a) defines what 
constitutes ``medical information'' for purposes of this regulation. 
The regulation casts a broad net by encompassing any medical data about 
the miner that a party develops in connection with a claim. Treatment 
records are not information developed in connection with a claim and 
thus do not fall within this definition. But any party may obtain and 
submit records pertaining to treatment for a respiratory or pulmonary 
or related disease under Sec.  725.414(a)(4).
    Proposed paragraph (a)(1) addresses examining physicians' opinions 
and includes all findings made by an examining physician in the 
definition of ``medical information.'' An examining physician's opinion 
may disclose incidental physical conditions beyond a miner's 
respiratory or pulmonary systems that need attention. Giving miners 
full access to this data is consistent with the Act's and the 
Department's intent to protect the miner's health. Proposed paragraphs 
(a)(2) through (a)(4) include all other physicians' opinions, tests, 
procedures and related documentation in ``medical information,'' but 
only to the extent they address the miner's respiratory or pulmonary 
condition.
    Proposed Sec.  725.413(b) sets out the duty to disclose medical 
information about the miner and a time frame for such disclosure. The 
duty to disclose arises when either a party or a party's agent receives 
medical information. By including a ``party's agent,'' the proposed 
rule requires disclosure of medical information received by any 
individual or business entity that develops or screens medical 
information for the party or the party's attorney. Thus, a party may 
not avoid disclosure by having medical opinions and testing results 
filtered through a third-party agent. The time frame for disclosure is 
generally 30 days after receipt of the medical information. Within that 
time period, the disclosing party must send a copy of the medical 
information obtained to all other parties of record. In the event the 
claim is already scheduled for hearing by an administrative law judge 
when the medical information is received, the proposed rule requires 
the disclosing party to send the information no later than 20 days 
prior to the hearing. This provision correlates with current Sec.  
725.456(b)(2)'s 20-day requirement for exchanging any documentary 
evidence a party wants to submit into the hearing record.
    Proposed Sec.  725.413(c) provides sanctions that an adjudication 
officer may impose on a party that does not comply with its obligation 
to disclose the medical information described in proposed Sec.  
725.413(a). In determining an appropriate sanction, the proposed rule 
requires the adjudication officer to consider whether the party who 
violated the disclosure rule was represented by counsel when the 
violation occurred. The proposed rule also requires the adjudication 
officer to protect represented parties when the violation was 
attributable solely to their attorney's errors. The sanctions listed 
are not exclusive, and an adjudication officer may impose a different 
sanction, so long as it is appropriate to the circumstances presented 
in the particular case. Two of the listed sanctions are unique to the 
BLBA claims context. First, the proposed rule allows the adjudication 
officer to disqualify the non-disclosing party's attorney from further 
participation in the claim proceedings. The Department believes this is 
an appropriate sanction when the party's attorney is solely at fault 
for the non-disclosure and the failure to disclose resulted from more 
than an administrative error. Second, the proposed rule empowers an 
adjudication officer to relieve a claimant from the impact of a prior 
claim denial (see 20 CFR 725.309(c)(6)) if the medical information was 
not disclosed in accordance with the regulation in the prior claim 
proceeding. This sanction removes an incentive for responsible 
operators to withhold medical information and, by encouraging operators 
to comply, helps protect miners like Mr. Fox.
    Finally, proposed Sec.  725.413(d) sets out when the rule is 
applicable. Significantly, proposed paragraph (d)(2) specifies that the 
rule applies to claims pending on the rule's effective date if an 
administrative law judge has not yet entered a decision on the merits. 
To provide adequate time for disclosure in pending cases, the proposed 
rule allows the parties 60 days to disclose evidence received prior to 
the rule's adoption. Evidence received after the rule's effective date 
remains subject to proposed Sec.  725.413(b)'s 30-day time limit. After 
an administrative law judge issues a merits decision, proposed 
paragraph (d)(3) imposes the obligation to disclose medical information 
only when further evidentiary development is permitted on 
reconsideration, remand from an appellate body, or after a party files 
a modification request. Applying this rule to pending claims will 
further one of the rule's primary purposes: protecting the health of 
the nation's miners.
20 CFR 725.414 Development of Evidence
    (a) Section 725.414 imposes limitations on the quantity of medical 
evidence that each party may submit in a black lung claim. The 
Department proposed the limitations, in part, to ensure that 
eligibility determinations are based on the quality, not the quantity, 
of evidence submitted and to reduce litigation costs. 62 FR 3338 (Jan. 
22, 1997). Under the evidence limiting rule, each side in a living 
miner's claim--both the claimant and the responsible operator (or 
Director, when appropriate)--may submit two chest X-ray 
interpretations, the results of two pulmonary function tests, two 
arterial blood gas studies and two medical reports as its affirmative 
case. Current Sec.  725.414(a)(1) defines a medical report as a 
``written assessment of the miner's respiratory or pulmonary 
condition'' that ``may be prepared by a physician who examined the 
miner and/or reviewed the available admissible evidence.'' 20 CFR 
725.414(a)(1). Because additional medical evidence may become available 
after a physician has prepared a medical report, physicians often 
update their initial reports in supplemental reports addressing the new 
evidence. This practice has, at times, caused confusion regarding 
whether the supplemental report must be deemed a second medical report 
for purposes of the evidentiary limitations. The Department proposes to 
amend Sec.  725.414(a)(1) to reflect the Director's longstanding 
position that these supplemental reports are merely a continuation of 
the physician's original medical report for purposes of the evidence-
limiting rules and do not count against the party as a second medical 
report. The revised rule would apply to all claims filed after January 
19, 2001. See 20 CFR 725.2(c).
    The Director's position flows from the language of the current 
rules, which constrains the evidence a physician may review in a 
written report based only on its admissibility. Current Sec.  
725.414(a)(1) makes clear that a physician who provides a written 
opinion on the miner's pulmonary condition may consider all 
``admissible medical evidence.'' Significantly, a physician who 
prepares a written medical report may also provide oral testimony in a 
claim, either at the formal hearing or through a deposition, and may 
``testify as to any other medical evidence of

[[Page 23748]]

record.'' 20 CFR 725.414(c), 725.457(d). Thus, so long as a piece of 
medical evidence is admissible, a physician may consider it when 
addressing the miner's condition in either a written report or oral 
testimony. The Benefits Review Board has long accepted the Director's 
position that the medical opinion of a physician may be submitted in 
more than one document and still be considered one medical report for 
purposes of Sec.  725.414. See, e.g., Akers v. TBK Coal Co., BRB No. 
06-894 BLA, 2007 WL 7629772 (Ben. Rev. Bd. Nov. 30, 2007).
    Supplemental reports are a reasonable and cost-effective means of 
providing medical opinion evidence given the practical realities of 
federal black lung litigation. Even with the evidence-limiting rules, a 
miner who files a black lung claim may undergo up to five sets of 
examinations and testing ``spread . . . out over time.'' 65 FR 79992 
(Dec. 20, 2000). A physician who examines the miner early in the claim 
process will obviously not at that time have access to all the medical 
evidence that ultimately will be admitted into the record. Given that 
the rules allow the physician to review all admissible medical evidence 
when evaluating the miner's condition, it makes sense to allow the 
physician to supplement his or her original report as new evidence 
becomes available. Indeed, a contrary rule would increase litigation 
costs because the party would be forced to have the physician review 
new evidence during a deposition or in-court testimony, both of which 
are much more costly means of providing evidence. There is therefore no 
practical or logical reason to consider a physician's supplemental 
written report a second medical report under the evidence limiting 
rules.
    (b) For cases in which the Trust Fund is liable for benefits, 
current Sec.  725.414(a)(3)(iii) authorizes the Director to exercise 
the rights of a responsible operator for purposes of the evidentiary 
limitations. 20 CFR 725.414(a)(3)(iii). The current rule does not, 
however, allow the Director to submit medical evidence, except for the 
medical evidence developed under Sec.  725.406, in cases in which a 
coal mine operator is deemed the liable party. The rule thus leaves the 
Trust Fund potentially unprotected in cases in which the identified 
responsible operator has ceased to defend a claim during the course of 
litigation because of adverse financial developments, such as 
bankruptcy or insolvency. The Department proposes to amend Sec.  
725.414(a)(3)(iii) to allow the Director to submit medical evidence, up 
to the limits allowed an identified responsible operator, in such 
cases. The revised rule would apply to all claims filed after January 
19, 2001. See 20 CFR 725.2(c).
    The Trust Fund is liable for the payment of benefits if no operator 
can be identified as liable or if the operator identified as liable 
fails to pay benefits owed. See 26 U.S.C. 9501(d)(1); 20 CFR 725.522. 
As a result, the Director's inability to develop medical evidence in 
responsible operator cases imperils the Trust Fund if the operator 
ceases to defend the claim. In such cases, the Director currently has 
only two choices: (1) Dismiss the operator and have the Trust Fund 
assume liability so that medical evidence can be developed; or (2) keep 
the operator as the liable party and, if an award is issued, attempt to 
enforce the award against the operator or related entities (e.g., 
insurance carrier, surety-bond companies, successor operator, etc.).
    The first choice forecloses any possibility of recovery from the 
operator in the case of an award because the award would run against 
the Trust Fund. To be enforceable against an operator, the order 
awarding benefits must identify the operator as the liable party. See 
20 CFR 725.522(a), 725.601-.609. The second choice restricts the Trust 
Fund's ability to defend against an unmeritorious claim without 
providing any certainty as to the recovery of any benefits awarded. In 
both cases, the Trust Fund is unnecessarily put at risk. This risk can 
be ameliorated by the simple expedient of allowing the Director, at his 
or her discretion, to develop evidence in cases in which the identified 
responsible operator has ceased to defend the claim.
    Proposed Sec.  725.414(a)(3)(iii) allows the Director the option of 
developing evidence in such cases. This revision would not prejudice 
claimants because the Director would be bound by the same evidence-
limiting rules as the operator. In a miner's claim, the medical 
evidence developed under Sec.  725.406 counts as one medical report and 
one set of tests submitted by the Director, 20 CFR 725.414(a)(3)(iii), 
and the Director would be able to submit only one additional medical 
report and set of tests, along with appropriate rebuttal evidence. And 
in a survivor's claim, the Director, like an operator, is limited to 
two complete reports and rebuttal evidence. Moreover, in appropriate 
cases, the Director may determine that an award of benefits is 
justified, and decline to submit additional evidence. In sum, the 
proposed rule reasonably allows the Director to defend the Trust Fund 
against unwarranted liability in appropriate circumstances without 
unjustifiably burdening claimants.
20 CFR 725.601 Enforcement Generally
    Current Sec.  725.601 sets out the Department's policy regarding 
enforcing the liabilities imposed by Part 725. The last sentence of 
current paragraph (b) refers to ``payments in addition to compensation 
(see Sec.  725.607)[.]'' For the reasons explained in the discussion 
under Sec.  725.607, the Department proposes to replace the phrase 
``payments in addition to compensation'' with the phrase ``payments of 
additional compensation.'' No substantive change is intended.
20 CFR 725.607 Payments in Addition to Compensation
    The Department proposes two revisions to current Sec.  725.607, 
which implements section 14(f) of the Longshore and Harbor Workers' 
Compensation Act, 33 U.S.C. 914(f), as incorporated into the BLBA by 
section 422(a) of the Act, 30 U.S.C. 932(a), to clarify that amounts 
paid under section 14(f) are compensation. Section 14(f) generally 
provides that claimants are entitled to an additional 20% of any 
compensation owed under the terms of an award that is not paid within 
ten days after it becomes due.
    The majority of courts to consider the question have agreed with 
the Director's view that the 20% payment required by section 14(f) is 
itself ``compensation'' rather than a penalty. See Newport News 
Shipbuilding and Dry Dock Co. v. Brown, 376 F.3d 245, 251 (4th Cir. 
2004) (``[I]t is plain that an award for late payment under [section] 
14(f) is compensation.''); Tahara v. Matson Terminals, Inc., 511 F.3d 
950, 953-54 (9th Cir. 2007) (same); but see Burgo v. General Dynamics 
Corp., 122 F.3d 140, 145-46 (2d Cir. 1997). Part 725 reflects this view 
by generally referring to 14(f) payments as ``additional 
compensation.'' See 20 CFR 725.530(a), 725.607(b), 725.608(a)(3); see 
also 65 FR 80014 (Dec. 20, 2000) (``Section 14(f) provides that 
additional compensation, in the amount of twenty percent of unpaid 
benefits, shall be paid if an employer fails to pay within ten days 
after the benefits become due.'').
    Current Sec.  725.607 does not consistently reflect the majority 
rule or the Director's position. Paragraph (b) describes section 14(f) 
payments as ``additional compensation.'' But both the title of the 
section and paragraph (c) describe them as payments ``in addition to 
compensation.'' The latter formulation could be read to suggest

[[Page 23749]]

that 14(f) payments are something other than compensation. While the 
``in addition to compensation'' formulation has not caused any problems 
in the administration of Sec.  725.607 thus far, the Department wishes 
to eliminate any possibility that the regulation's phrasing could 
confuse readers. Accordingly, the Department proposes to replace ``in 
addition to compensation'' with ``additional compensation'' in the 
title of Sec.  725.607 and paragraph (c). To maintain consistency 
within part 725, the Department also proposes the same change to Sec.  
725.601(b).

III. Statutory Authority

    Section 426(a) of the BLBA, 30 U.S.C. 936(a), authorizes the 
Secretary of Labor to prescribe rules and regulations necessary for the 
administration and enforcement of the Act.

IV. Information Collection Requirements (Subject to the Paperwork 
Reduction Act) Imposed Under the Proposed Rule

    The Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et seq., 
and its implementing regulations, 5 CFR part 1320, require that the 
Department consider the impact of paperwork and other information 
collection burdens imposed on the public. A Federal agency generally 
cannot conduct or sponsor a collection of information, and the public 
is generally not required to respond to an information collection, 
unless it is approved by the Office of Management and Budget (OMB) 
under the PRA and displays a currently valid OMB Control Number. In 
addition, notwithstanding any other provisions of law, no person may 
generally be subject to penalty for failing to comply with a collection 
of information that does not display a valid Control Number. See 5 CFR 
1320.5(a) and 1320.6.
    As discussed earlier in the preamble, proposed Sec.  725.413 would 
require each party in a black lung benefits claim to disclose certain 
medical information about the miner that the party or the party's agent 
receives by sending a complete copy of the information to all other 
parties in the claim. The Department does not believe this rule will 
have a broad impact because in many (and perhaps the majority) of 
cases, the parties already exchange all of the medical information in 
their possession as part of their evidentiary submissions. But 
requiring an exchange of additional medical information could be 
considered a collection of information within the meaning of the PRA. 
Thus, consistent with the requirements codified at 44 U.S.C. 
3506(c)(2)(B) and 3507(d), and at 5 CFR 1320.11, the Department has 
submitted a new Information Collection Request to OMB for approval 
under the PRA and is providing an opportunity for public comment. A 
copy of this request (including supporting documentation) may be 
obtained free of charge by contacting Michael Chance, Director, 
Division of Coal Mine Workers' Compensation, Office of Workers' 
Compensation Programs, U.S. Department of Labor, 200 Constitution 
Avenue, NW., Suite N-3464, Washington, DC 20210. Telephone: (202) 693-
0978 (this is not a toll-free number). TTY/TDD callers may dial toll-
free 1-800-877-8339.
    The Department has estimated the number of responses and burdens as 
follows for this information collection:
    Title of Collection: Disclosure of Medical Information
    OMB Control Number: 1240-0NEW [OWCP will supply before publication]
    Total Estimated Number of Responses: 4,074
    Total Estimated Annual Time Burden: 679 hours
    Total Estimated Annual Cost Burden: $21,537.88
    In addition to having an opportunity to file comments with the 
Department, the PRA provides that an interested party may file comments 
on the information collection requirements in a proposed rule directly 
with OMB at the Office of Information and Regulatory Affairs, Attn: OMB 
Desk Officer for DOL-OWCP, Office of Management and Budget, Room 10235, 
725 17th Street, NW., Washington, DC 20503; by Fax: 202-395-5806 (this 
is not a toll-free number); or by email: OIRA_submission@omb.eop.gov. 
Commenters are encouraged, but not required, to send a courtesy copy of 
any comments to the Department by one of the methods set forth in the 
ADDRESSES section above. OMB will consider all written comments that 
the agency receives within 30 days of publication of this NPRM in the 
Federal Register. In order to help ensure appropriate consideration, 
comments should mention the OMB control number listed above.
    OMB and the Department are particularly interested in comments 
that:
     Evaluate whether the proposed collection of information is 
necessary for the proper performance of the functions of the agency, 
including whether the information will have practical utility;
     Evaluate the accuracy of the agency's estimate of the 
burden of the proposed collection of information, including the 
validity of the methodology and assumptions used;
     Enhance the quality, utility, and clarity of the 
information to be collected; and
     Minimize the burden of the collection of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technological collection 
techniques or other forms of information technology, e.g., permitting 
electronic submission of responses.

V. Executive Orders 12866 and 13563 (Regulatory Planning and Review)

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility.
    The Department has considered the proposed rule with these 
principles in mind and has determined that the regulated community will 
benefit from this regulation. The discussion below sets out the rule's 
anticipated economic impact and discusses non-economic factors favoring 
adoption of the proposal. OMB has reviewed this rule prior to 
publication in accordance with these Executive Orders.

A. Economic Considerations

    The proposed rule includes only one provision that arguably could 
have an economic impact on parties to black lung claims or others: 
proposed Sec.  725.310(e), which requires a responsible operator to pay 
effective awards of benefits while seeking to modify those awards. As 
set forth above in the Section-by-Section Explanation, within one year 
of an award of benefits or of the last payment of benefits, a liable 
coal mine operator may request modification of an award (i.e., may seek 
to have the award converted to a denial) based on a change in 
conditions or because of a mistake in a determination of fact in the 
award. 20 CFR 725.310(a). Operators are legally obligated to make 
benefit payments during such modification proceedings. But few do, and 
the Trust Fund pays monthly benefits in their stead. To avoid this 
result, proposed Sec.  725.310(e) would prohibit a responsible operator 
from seeking modification until it meets the

[[Page 23750]]

payment obligations imposed by effective awards in a claim. Because the 
proposed rule merely enforces operators' existing obligations, it 
imposes no additional costs and is thus cost neutral.
    Even if the proposed rule were construed to impose a new obligation 
on operators, the Department believes any additional costs involved 
would not be burdensome for several reasons. First, if an operator's 
modification request is denied, the operator must reimburse the Trust 
Fund with interest for all benefits paid to the claimant during the 
proceeding. In such cases, whether the responsible operator starts 
paying benefits after the award is made initially or does so after the 
modification process has ended, the operator must pay all benefits 
owed. Second, in those instances where the operator's modification 
petition is successful, the operator can pursue reimbursement from the 
claimant for at least some of the benefits paid, including those paid 
during the modification proceeding itself. See 20 CFR 725.310(d). The 
potential economic impact on responsible operators in this instance is 
the amount that they cannot recoup from the claimant. In this regard, 
when an operator successfully modifies an award, the operator can seek 
only to recover cash benefits paid to the claimant and not medical 
benefits paid to hospitals and other health care providers. The 
Department believes, based on its experience in administering the 
program, that there are very few claims in which an operator is 
successful on modification. Thus, even if recoupment is unavailable, 
the cost impact would not be large.

B. Other Considerations

    The Department has also considered other benefits and burdens that 
would result from the proposed rules apart from any potential monetary 
impact. As discussed in the Section-by-Section analysis, proposed Sec.  
725.310(e) requires responsible operators to meet their payment 
obligations on effective awards before modifying those awards. This 
rule strikes an appropriate balance between the parties' competing 
interests: claimants are made whole while operators who would be 
irreparably harmed by making such payments can seek a stay in payments. 
While there is some risk that the operator will not recover payments 
made after a successful modification petition, placing that risk on the 
operator, rather than the Trust Fund, is consistent with the Act's 
intent.
    Proposed Sec.  725.413, which requires the parties to disclose all 
medical information they develop, will help protect miners' health and 
assist in reaching more accurate benefits determinations. These 
concerns far outweigh any minimal additional administrative burden this 
rule would place on the parties as a result of the mandatory exchange 
of this information. Moreover, the Department does not believe this 
rule will have an extremely broad impact. In many (and perhaps the 
majority) of cases, the Department believes, and has been informed by 
the public, that the parties already exchange all of the medical 
information in their possession as part of their evidentiary 
submissions.
    Finally, the proposed revisions to Sec.  725.414 and Sec.  725.607 
will benefit all regulated parties simply by adding clarity to the 
rules.

VI. Regulatory Flexibility Act and Executive Order 13272 (Proper 
Consideration of Small Entities in Agency Rulemaking)

    The Regulatory Flexibility Act of 1980, as amended, 5 U.S.C. 601 et 
seq. (RFA), requires an agency to prepare a regulatory flexibility 
analysis when it proposes regulations that will have ``a significant 
economic impact on a substantial number of small entities,'' or to 
certify that the proposed regulations will have no such impact, and to 
make the analysis or certification available for public comment. 5 
U.S.C. 605.
    The Department has determined that a regulatory flexibility 
analysis under the RFA is not required for this rulemaking. While many 
coal mine operators are small entities within the meaning of the RFA, 
see 77 FR 19471-72 (Mar. 30, 2012), this proposed rule, if adopted in 
final, would not have a significant economic impact on them. As 
discussed above, the proposed rule addresses procedural issues that 
have arisen in claims administration and adjudication, and does not 
change the substantive standards under which claims are adjudicated. As 
such, the Department anticipates that the proposed rule would have 
little, if any, financial consequences for operators. Moreover, to the 
extent proposed Sec.  725.310(e) requires that operators make benefit 
payments on effective awards while pursuing modification, the 
regulation merely reflects an existing payment obligation rather than 
imposing a new one on operators.
    Based on these facts, the Department certifies that this rule will 
not have a significant economic impact on a substantial number of small 
entities. Thus, a regulatory flexibility analysis is not required. The 
Department invites comments from members of the public who believe the 
regulations will have a significant economic impact on a substantial 
number of small coal mine operators. The Department has provided the 
Chief Counsel for Advocacy of the Small Business Administration with a 
copy of this certification. See 5 U.S.C. 605.

VII. Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531 
et seq., directs agencies to assess the effects of Federal Regulatory 
Actions on State, local, and tribal governments, and the private 
sector, ``other than to the extent that such regulations incorporate 
requirements specifically set forth in law.'' 2 U.S.C. 1531. For 
purposes of the Unfunded Mandates Reform Act, this rule does not 
include any Federal mandate that may result in increased expenditures 
by State, local, tribal governments, or increased expenditures by the 
private sector of more than $100,000,000.

VIII. Executive Order 13132 (Federalism)

    The Department has reviewed this proposed rule in accordance with 
Executive Order 13132 regarding federalism, and has determined that it 
does not have ``federalism implications.'' E.O. 13132, 64 FR 43255 
(Aug. 4, 1999). The proposed rule will not ``have substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government'' if 
promulgated as a final rule. Id.

IX. Executive Order 12988 (Civil Justice Reform)

    The proposed rule meets the applicable standards in Sections 3(a) 
and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize 
litigation, eliminate ambiguity, and reduce burden. See 61 FR 4729 
(Feb. 5, 1996).

X. Congressional Review Act

    The proposed rule is not a ``major rule'' as defined in the 
Congressional Review Act, 5 U.S.C. 801 et seq. If promulgated as a 
final rule, this rule will not result in an annual effect on the 
economy of $100,000,000 or more; a major increase in costs or prices 
for consumers, individual industries, Federal, State or local 
government agencies, or geographic regions; or significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the

[[Page 23751]]

ability of United States-based enterprises to compete with foreign-
based enterprises in domestic and export markets.

List of Subjects in 20 CFR Part 725

    Administrative practice and procedure, Black lung benefits, Claims, 
Health care, Reporting and recordkeeping requirements, Vocational 
rehabilitation, Workers' compensation.
    For the reasons set forth in the preamble, the Department of Labor 
proposes to amend 20 CFR part 725 as follows:

PART 725--CLAIMS FOR BENEFITS UNDER PART C OF TITLE IV OF THE 
FEDERAL MINE SAFETY AND HEALTH ACT, AS AMENDED

0
1. The authority citation for part 725 continues to read as follows:

    Authority: 5 U.S.C. 301; Reorganization Plan No. 6 of 1950, 15 
FR 3174; 30 U.S.C. 901 et seq., 902(f), 934, 936; 33 U.S.C. 901 et 
seq.; 42 U.S.C. 405; Secretary's Order 10-2009, 74 FR 58834.

0
2. In Sec.  725.310, revise paragraphs (b), (c), and (d) and add 
paragraph (e) to read as follows:


Sec.  725.310  Modification of awards and denials.

* * * * *
    (b) Modification proceedings must be conducted in accordance with 
the provisions of this part as appropriate, except that the claimant 
and the operator, or group of operators or the fund, as appropriate, 
are each entitled to submit no more than one additional chest X-ray 
interpretation, one additional pulmonary function test, one additional 
arterial blood gas study, and one additional medical report in support 
of its affirmative case along with such rebuttal evidence and 
additional statements as are authorized by paragraphs (a)(2)(ii) and 
(a)(3)(ii) of Sec.  725.414. Modification proceedings may not be 
initiated before an administrative law judge or the Benefits Review 
Board.
    (c) At the conclusion of modification proceedings before the 
district director, the district director may issue a proposed decision 
and order (Sec.  725.418) or, if appropriate, deny the claim by reason 
of abandonment (Sec.  725.409). In any case in which the district 
director has initiated modification proceedings on his own initiative 
to alter the terms of an award or denial of benefits issued by an 
administrative law judge, the district director must, at the conclusion 
of modification proceedings, forward the claim for a hearing (Sec.  
725.421). In any case forwarded for a hearing, the administrative law 
judge assigned to hear such case must consider whether any additional 
evidence submitted by the parties demonstrates a change in condition 
and, regardless of whether the parties have submitted new evidence, 
whether the evidence of record demonstrates a mistake in a 
determination of fact.
    (d) An order issued following the conclusion of modification 
proceedings may terminate, continue, reinstate, increase or decrease 
benefit payments or award benefits. Such order must not affect any 
benefits previously paid, except that an order increasing the amount of 
benefits payable based on a finding of a mistake in a determination of 
fact may be made effective on the date from which benefits were 
determined payable by the terms of an earlier award. In the case of an 
award which is decreased, no payment made in excess of the decreased 
rate prior to the date upon which the party requested reconsideration 
under paragraph (a) of this section will be subject to collection or 
offset under subpart H of this part, provided the claimant is without 
fault as defined by Sec.  725.543. In the case of an award which is 
decreased following the initiation of modification by the district 
director, no payment made in excess of the decreased rate prior to the 
date upon which the district director initiated modification 
proceedings under paragraph (a) will be subject to collection or offset 
under subpart H of this part, provided the claimant is without fault as 
defined by Sec.  725.543. In the case of an award which has become 
final and is thereafter terminated, no payment made prior to the date 
upon which the party requested reconsideration under paragraph (a) will 
be subject to collection or offset under subpart H of this part. In the 
case of an award which has become final and is thereafter terminated 
following the initiation of modification by the district director, no 
payment made prior to the date upon which the district director 
initiated modification proceedings under paragraph (a) will be subject 
to collection or offset under subpart H of this part.
    (e)(1) Any modification request by an operator must be denied 
unless the operator proves that at the time of the request, the 
operator has complied with all of the obligations imposed by all awards 
in the claim that are currently effective as defined by Sec.  
725.502(a). These include the obligations to--
    (i) Pay all benefits owed to the claimant (including retroactive 
benefits under Sec.  725.502(b)(2), additional compensation under Sec.  
725.607, and medical benefits under Sec. Sec.  725.701 through 
725.708). If the prior award is final, these obligations also include 
the payment of approved attorney's fees and expenses under Sec.  
725.367 and witness fees under Sec.  725.459; and
    (ii) Reimburse the Black Lung Disability Trust Fund for all 
benefits paid (including payments prior to final adjudication under 
Sec.  725.522, costs for the medical examination under Sec.  725.406, 
and other benefits paid on behalf of the operator) with such penalties 
and interest as are appropriate.
    (2) The requirements of paragraph (e)(1) of this section are 
inapplicable to any benefits owed pursuant to an effective but non-
final order if the payment of such benefits has been stayed by the 
Benefits Review Board or appropriate court under 33 U.S.C. 921.
    (3) Except as provided by paragraph (e)(4) of this section, the 
operator must submit all documentary evidence pertaining to its 
compliance with the requirements of paragraph (e)(1) of this section to 
the district director concurrently with its request for modification. 
The claimant is also entitled to submit any relevant evidence to the 
district director. Absent extraordinary circumstances, no documentary 
evidence pertaining to the operator's compliance with the requirements 
of paragraph (e)(1) at the time of the modification request will be 
admitted into the hearing record or otherwise considered at any later 
stage of the proceeding.
    (4) The requirements imposed by paragraph (e)(1) of this section 
are continuing in nature. If at any time during the modification 
proceedings the operator fails to meet obligations imposed by all 
effective awards in the claim, the adjudication officer must issue an 
order to show cause why the operator's modification request should not 
be denied and afford all parties time to respond to such order. 
Responses may include evidence pertaining to the operator's continued 
compliance with the requirements of paragraph (e)(1). If, after the 
time for response has expired, the adjudication officer determines that 
the operator is not meeting its obligations, the adjudication officer 
must deny the operator's modification request.
    (5) The denial of a request for modification under this section 
will not bar any future modification request by the operator, so long 
as the operator satisfies the requirements of paragraph (e)(1) of this 
section with each future modification petition.
    (6) The provisions of this paragraph (e) apply to all modification 
requests filed on or after the effective date of this rule.

[[Page 23752]]

0
3. Add Sec.  725.413 to subpart E to read as follows:


Sec.  725.413  Disclosure of medical information.

    (a) For purposes of this section, medical information is any 
medical data about the miner that a party develops in connection with a 
claim for benefits, including medical data developed with any prior 
claim that has not been disclosed previously to the other parties. 
Medical information includes, but is not limited to--
    (1) Any examining physician's written or testimonial assessment of 
the miner, including the examiner's findings, diagnoses, conclusions, 
and the results of any tests;
    (2) Any other physician's written or testimonial assessment of the 
miner's respiratory or pulmonary condition;
    (3) The results of any test or procedure related to the miner's 
respiratory or pulmonary condition, including any information relevant 
to the test or procedure's administration; and
    (4) Any physician's or other medical professional's interpretation 
of the results of any test or procedure related to the miner's 
respiratory or pulmonary condition.
    (b) Each party must disclose medical information the party or the 
party's agent receives by sending a complete copy of the information to 
all other parties in the claim within 30 days after receipt. If the 
information is received after the claim is already scheduled for 
hearing before an administrative law judge, the disclosure must be made 
at least 20 days before the scheduled hearing is held (see Sec.  
725.456(b)).
    (c) At the request of any party or on his or her own motion, an 
adjudication officer may impose sanctions on any party or his or her 
representative who fails to timely disclose medical information in 
compliance with this section.
    (1) Sanctions must be appropriate to the circumstances and may only 
be imposed after giving the party an opportunity to demonstrate good 
cause why disclosure was not made and sanctions are not warranted. In 
determining an appropriate sanction, the adjudication officer must 
consider--
    (i) Whether the sanction should be mitigated because the party was 
not represented by an attorney when the information should have been 
disclosed; and
    (ii) Whether the party should not be sanctioned because the failure 
to disclose was attributable solely to the party's attorney.
    (2) Sanctions may include, but are not limited to--
    (i) Drawing an adverse inference against the non-disclosing party 
on the facts relevant to the disclosure;
    (ii) Limiting the non-disclosing party's claims, defenses or right 
to introduce evidence;
    (iii) Dismissing the claim proceeding if the non-disclosing party 
is the claimant and no payments prior to final adjudication have been 
made to the claimant unless the Director agrees to the dismissal in 
writing (see Sec.  725.465(d));
    (iv) Rendering a default decision against the non-disclosing party;
    (v) Disqualifying the non-disclosing party's attorney from further 
participation in the claim proceedings; and
    (vi) Relieving a claimant who files a subsequent claim from the 
impact of Sec.  725.309(c)(6) if the non-disclosed evidence predates 
the denial of the prior claim and the non-disclosing party is the 
operator.
    (d) This rule applies to--
    (1) All claims filed after the effective date of this rule;
    (2) Pending claims not yet adjudicated by an administrative law 
judge, except that medical information received prior to the effective 
date of this rule and not previously disclosed must be provided to the 
other parties within 60 days of the effective date of this rule; and
    (3) Pending claims already adjudicated by an administrative law 
judge where--
    (i) The administrative law judge reopens the record for receipt of 
additional evidence in response to a timely reconsideration motion (see 
Sec.  725.479(b)) or after remand by the Benefits Review Board or a 
reviewing court; or
    (ii) A party requests modification of the award or denial of 
benefits (see Sec.  725.310(a)).
0
4. In Sec.  725.414, revise paragraphs (a), (c), and (d) to read as 
follows:


Sec.  725.414  Development of evidence.

    (a) Medical evidence. (1) For purposes of this section, a medical 
report is a physician's written assessment of the miner's respiratory 
or pulmonary condition. A medical report may be prepared by a physician 
who examined the miner and/or reviewed the available admissible 
evidence. Supplemental medical reports prepared by the same physician 
must be considered part of the physician's original medical report. A 
physician's written assessment of a single objective test, such as a 
chest X-ray or a pulmonary function test, is not a medical report for 
purposes of this section.
    (2)(i) The claimant is entitled to submit, in support of his 
affirmative case, no more than two chest X-ray interpretations, the 
results of no more than two pulmonary function tests, the results of no 
more than two arterial blood gas studies, no more than one report of an 
autopsy, no more than one report of each biopsy, and no more than two 
medical reports. Any chest X-ray interpretations, pulmonary function 
test results, blood gas studies, autopsy report, biopsy report, and 
physicians' opinions that appear in a medical report must each be 
admissible under this paragraph (a)(2)(i) or paragraph (a)(4) of this 
section.
    (ii) The claimant is entitled to submit, in rebuttal of the case 
presented by the party opposing entitlement, no more than one 
physician's interpretation of each chest X-ray, pulmonary function 
test, arterial blood gas study, autopsy or biopsy submitted by the 
designated responsible operator or the fund, as appropriate, under 
paragraph (a)(3)(i) or (iii) of this section and by the Director 
pursuant to Sec.  725.406. In any case in which the party opposing 
entitlement has submitted the results of other testing pursuant to 
Sec.  718.107 of this chapter, the claimant is entitled to submit one 
physician's assessment of each piece of such evidence in rebuttal. In 
addition, where the responsible operator or fund has submitted rebuttal 
evidence under paragraph (a)(3)(ii) or (iii) of this section with 
respect to medical testing submitted by the claimant, the claimant is 
entitled to submit an additional statement from the physician who 
originally interpreted the chest X-ray or administered the objective 
testing. Where the rebuttal evidence tends to undermine the conclusion 
of a physician who prepared a medical report submitted by the claimant, 
the claimant is entitled to submit an additional statement from the 
physician who prepared the medical report explaining his conclusion in 
light of the rebuttal evidence.
    (3)(i) The responsible operator designated pursuant to Sec.  
725.410 is entitled to obtain and submit, in support of its affirmative 
case, no more than two chest X-ray interpretations, the results of no 
more than two pulmonary function tests, the results of no more than two 
arterial blood gas studies, no more than one report of an autopsy, no 
more than one report of each biopsy, and no more than two medical 
reports. Any chest X-ray interpretations, pulmonary function test 
results, blood gas studies, autopsy report, biopsy report, and 
physicians' opinions that appear in a medical report must each be 
admissible under this paragraph (a)(3)(i)

[[Page 23753]]

or paragraph (a)(4) of this section. In obtaining such evidence, the 
responsible operator may not require the miner to travel more than 100 
miles from his or her place of residence, or the distance traveled by 
the miner in obtaining the complete pulmonary evaluation provided by 
Sec.  725.406, whichever is greater, unless a trip of greater distance 
is authorized in writing by the district director. If a miner 
unreasonably refuses--
    (A) To provide the Office or the designated responsible operator 
with a complete statement of his or her medical history and/or to 
authorize access to his or her medical records; or
    (B) To submit to an evaluation or test requested by the district 
director or the designated responsible operator, the miner's claim may 
be denied by reason of abandonment. (See Sec.  725.409).
    (ii) The responsible operator is entitled to submit, in rebuttal of 
the case presented by the claimant, no more than one physician's 
interpretation of each chest X-ray, pulmonary function test, arterial 
blood gas study, autopsy or biopsy submitted by the claimant under 
paragraph (a)(2)(i) of this section and by the Director pursuant to 
Sec.  725.406. In any case in which the claimant has submitted the 
results of other testing pursuant to Sec.  718.107 of this chapter, the 
responsible operator is entitled to submit one physician's assessment 
of each piece of such evidence in rebuttal. In addition, where the 
claimant has submitted rebuttal evidence under paragraph (a)(2)(ii) of 
this section, the responsible operator is entitled to submit an 
additional statement from the physician who originally interpreted the 
chest X-ray or administered the objective testing. Where the rebuttal 
evidence tends to undermine the conclusion of a physician who prepared 
a medical report submitted by the responsible operator, the responsible 
operator is entitled to submit an additional statement from the 
physician who prepared the medical report explaining his conclusion in 
light of the rebuttal evidence.
    (iii) In a case in which the district director has not identified 
any potentially liable operators, or has dismissed all potentially 
liable operators under Sec.  725.410(a)(3), or has identified a liable 
operator that ceases to defend the claim on grounds of an inability to 
provide for payment of continuing benefits, the district director is 
entitled to exercise the rights of a responsible operator under this 
section, except that the evidence obtained in connection with the 
complete pulmonary evaluation performed pursuant to Sec.  725.406 must 
be considered evidence obtained and submitted by the Director, OWCP, 
for purposes of paragraph (a)(3)(i) of this section. In a case 
involving a dispute concerning medical benefits under Sec.  725.708, 
the district director is entitled to develop medical evidence to 
determine whether the medical bill is compensable under the standard 
set forth in Sec.  725.701.
    (4) Notwithstanding the limitations in paragraphs (a)(2) and (3) of 
this section, any record of a miner's hospitalization for a respiratory 
or pulmonary or related disease, or medical treatment for a respiratory 
or pulmonary or related disease, may be received into evidence.
    (5) A copy of any documentary evidence submitted by a party must be 
served on all other parties to the claim. If the claimant is not 
represented by an attorney, the district director must mail a copy of 
all documentary evidence submitted by the claimant to all other parties 
to the claim. Following the development and submission of affirmative 
medical evidence, the parties may submit rebuttal evidence in 
accordance with the schedule issued by the district director.
* * * * *
    (c) Testimony. A physician who prepared a medical report admitted 
under this section may testify with respect to the claim at any formal 
hearing conducted in accordance with subpart F of this part, or by 
deposition. If a party has submitted fewer than two medical reports as 
part of that party's affirmative case under this section, a physician 
who did not prepare a medical report may testify in lieu of such a 
medical report. The testimony of such a physician will be considered a 
medical report for purposes of the limitations provided by this 
section. A party may offer the testimony of no more than two physicians 
under the provisions of this section unless the adjudication officer 
finds good cause under paragraph (b)(1) of Sec.  725.456. In accordance 
with the schedule issued by the district director, all parties must 
notify the district director of the name and current address of any 
potential witness whose testimony pertains to the liability of a 
potentially liable operator or the designated responsible operator. 
Absent such notice, the testimony of a witness relevant to the 
liability of a potentially liable operator or the designated 
responsible operator will not be admitted in any hearing conducted with 
respect to the claim unless the administrative law judge finds that the 
lack of notice should be excused due to extraordinary circumstances.
    (d) Except to the extent permitted by Sec. Sec.  725.456 and 
725.310(b), the limitations set forth in this section apply to all 
proceedings conducted with respect to a claim, and no documentary 
evidence pertaining to liability may be admitted in any further 
proceeding conducted with respect to a claim unless it is submitted to 
the district director in accordance with this section.
0
5. In Sec.  725.601, revise paragraphs (b) and (c) to read as follows:


Sec.  725.601  Enforcement generally.

* * * * *
    (b) It is the policy and intent of the Department to vigorously 
enforce the provisions of this part through the use of the remedies 
provided by the Act. Accordingly, if an operator refuses to pay 
benefits with respect to a claim for which the operator has been 
adjudicated liable, the Director may invoke and execute the lien on the 
property of the operator as described in Sec.  725.603. Enforcement of 
this lien must be pursued in an appropriate U.S. district court. If the 
Director determines that the remedy provided by Sec.  725.603 may not 
be sufficient to guarantee the continued compliance with the terms of 
an award or awards against the operator, the Director may in addition 
seek an injunction in the U.S. district court to prohibit future 
noncompliance by the operator and such other relief as the court 
considers appropriate (see Sec.  725.604). If an operator unlawfully 
suspends or terminates the payment of benefits to a claimant, the 
district director may declare the award in default and proceed in 
accordance with Sec.  725.605. In all cases payments of additional 
compensation (see Sec.  725.607) and interest (see Sec.  725.608) will 
be sought by the Director or awarded by the district director.
    (c) In certain instances the remedies provided by the Act are 
concurrent; that is, more than one remedy might be appropriate in any 
given case. In such a case, the Director may select the remedy or 
remedies appropriate for the enforcement action. In making this 
selection, the Director shall consider the best interests of the 
claimant as well as those of the fund.
0
6. Revise Sec.  725.607 to read as follows:


Sec.  725.607  Payments of additional compensation.

    (a) If any benefits payable under the terms of an award by a 
district director (Sec.  725.419(d)), a decision and order filed and 
served by an administrative law judge (Sec.  725.478), or a decision 
filed by the Board or a U.S. court of appeals, are not paid by an 
operator or other employer ordered to make such

[[Page 23754]]

payments within 10 days after such payments become due, there will be 
added to such unpaid benefits an amount equal to 20 percent thereof, 
which must be paid to the claimant at the same time as, but in addition 
to, such benefits, unless review of the order making such award is 
sought as provided in section 21 of the LHWCA and an order staying 
payments has been issued.
    (b) If, on account of an operator's or other employer's failure to 
pay benefits as provided in paragraph (a) of this section, benefit 
payments are made by the fund, the eligible claimant will nevertheless 
be entitled to receive such additional compensation to which he or she 
may be eligible under paragraph (a), with respect to all amounts paid 
by the fund on behalf of such operator or other employer.
    (c) The fund may not be held liable for payments of additional 
compensation under any circumstances.

    Signed at Washington, DC, this 20th day of April, 2015.
Leonard J. Howie III,
Director, Office of Workers' Compensation Programs.
[FR Doc. 2015-09573 Filed 4-28-15; 8:45 am]
 BILLING CODE 4510-CR-P