81_FR_24544 81 FR 24464 - Black Lung Benefits Act: Disclosure of Medical Information and Payment of Benefits

81 FR 24464 - Black Lung Benefits Act: Disclosure of Medical Information and Payment of Benefits

DEPARTMENT OF LABOR
Office of Workers' Compensation Programs

Federal Register Volume 81, Issue 80 (April 26, 2016)

Page Range24464-24482
FR Document2016-09525

This final rule revises the regulations implementing the Black Lung Benefits Act to address certain procedural issues that have arisen in claim adjudications and other technical issues. To protect miners' health, assist parties without adequate legal representation, and enhance the accuracy of benefits entitlement decisions, the final rule includes a new provision that requires all parties to exchange with each other any medical information developed in connection with a claim for benefits and allows for the imposition of sanctions for failure to comply with the rule. The final rule also clarifies a liable coal mine operator's obligation to pay effective benefits awards by requiring payment before allowing the operator to challenge the award through the Act's modification procedures. In addition, the final rule resolves an ambiguity regarding how physicians' follow-up reports should be considered under the evidence-limiting rules, and allows the Department to fully participate in claims adjudications after the liable coal mine operator stops participating because of adverse financial developments, such as bankruptcy or insolvency.

Federal Register, Volume 81 Issue 80 (Tuesday, April 26, 2016)
[Federal Register Volume 81, Number 80 (Tuesday, April 26, 2016)]
[Rules and Regulations]
[Pages 24464-24482]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2016-09525]


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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: Final rule.

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SUMMARY: This final rule revises the regulations implementing the Black 
Lung Benefits Act to address certain procedural issues that have arisen 
in claim adjudications and other technical issues. To protect miners' 
health, assist parties without adequate legal representation, and 
enhance the accuracy of benefits entitlement decisions, the final rule 
includes a new provision that requires all parties to exchange with 
each other any medical information developed in connection with a claim 
for benefits and allows for the imposition of sanctions for failure to 
comply with the rule. The final rule also clarifies a liable coal mine 
operator's obligation to pay effective benefits awards by requiring 
payment before allowing the operator to challenge the

[[Page 24465]]

award through the Act's modification procedures. In addition, the final 
rule resolves an ambiguity regarding how physicians' follow-up reports 
should be considered under the evidence-limiting rules, and allows the 
Department to fully participate in claims adjudications after the 
liable coal mine operator stops participating because of adverse 
financial developments, such as bankruptcy or insolvency.

DATES: This rule is effective May 26, 2016.

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 Black Lung Benefits Act (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, 8 (1976). Benefits are paid either by an individual coal 
mine operator that employed the coal miner (or its insurance carrier), 
or the Black Lung Disability Trust Fund (Trust Fund). Dir., OWCP v. 
Bivens, 757 F.2d 781, 783 (6th Cir. 1985).
    On April 29, 2015, the Department proposed revising the BLBA's 
implementing regulations to resolve several procedural issues that had 
arisen in claims administration and adjudication, and make other 
technical changes. 80 FR 23743-54 (Apr. 29, 2015) (NPRM). Each of these 
issues and the comments received in response to the proposed rule are 
fully addressed in the Section-By-Section Explanation below.

II. Statutory Authority

    Congress granted the Secretary broad rulemaking authority to 
administer the BLBA: ``The Secretary of Labor [is] authorized to issue 
such regulations as [he] deems appropriate to carry out the provisions 
of this subchapter.'' 30 U.S.C. 936(a). See, e.g., Elm Grove Coal Co. 
v. Dir., OWCP, 480 F.3d 278, 293 (4th Cir. 2007) (``[T]he Secretary has 
been vested with broad authority to implement the mandate of the Black 
Lung Act.''); Caney Creek Coal Co. v. Satterfield, 150 F.3d 568, 572 
(6th Cir. 1998) (describing 30 U.S.C. 936(a) as conferring ``a broad 
grant of congressional authority'' to promulgate regulations); Labelle 
Processing Co. v. Swarrow, 72 F.3d 308, 312 (3d Cir. 1995) (``Congress 
granted the Secretary of Labor broad authority to promulgate 
regulations under the BLBA.''); Harman Mining Co. v. Dir., OWCP, 826 
F.2d 1388, 1390 (4th Cir. 1987) (same); see also Dir., OWCP v. 
Mangifest, 826 F.2d 1318, 1330 n.21 (3d Cir. 1987) (regulation was an 
appropriate exercise of the Secretary's general authority where not 
precluded by specific statutory section). Congress further emphasized 
the Secretary's important role in the BLBA's administration by 
including many other grants of regulatory authority throughout the 
statute. See 30 U.S.C. 902(f)(1)(D), 921(b), 923(b), 932(a), 932(h), 
936(c), and 942. Two of these supplementary grants of regulatory 
authority, sections 923(b) and 932(a), are particularly important to 
this rulemaking.
    Section 923(b), which incorporates section 205(a) of the Social 
Security Act, 30 U.S.C. 923(b) (incorporating 42 U.S.C. 405(a)), gives 
the Department wide latitude in regulating evidentiary matters in 
claims adjudications. Specifically, section 205(a) grants the Secretary 
authority 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 hereunder.'' Id. As explained in the 
NPRM, 80 FR 23746, section 205 has been interpreted as conferring 
``exceptionally broad'' power to regulate. See Heckler v. Campbell, 461 
U.S. 458, 466 (1983), quoting Schweiker v. Gray Panthers, 453 U.S. 34, 
43 (1981).
    Section 932(a), 30 U.S.C. 932(a), grants similarly strong 
regulatory authority to the Secretary. This section incorporates 
various provisions from the Longshore and Harbor Workers' Compensation 
Act (Longshore Act), 33 U.S.C. 901-950, but further authorizes the 
Secretary to ``prescribe in the Federal Register such additional 
provisions [] as he deems necessary'' and specifies that the 
incorporated Longshore Act sections apply ``except as otherwise 
provided . . . by regulations of the Secretary.'' 30 U.S.C. 932(a); see 
Dir., OWCP v. Nat'l Mines Corp., 554 F.2d 1267, 1273-74 (4th Cir. 1977) 
(holding that Congress empowered the Secretary to depart from specific 
requirements of the Longshore Act).
    One of the incorporated Longshore Act provisions, section 23(a), 
also provides important statutory authority for this rulemaking. 33 
U.S.C. 923(a), as incorporated by 30 U.S.C. 932(a). This section 
relieves the Department from traditional rules of procedure or evidence 
in claims determinations and plainly elevates truth seeking over 
litigation gamesmanship: ``the [adjudication officer] shall not be 
bound by common law or statutory rules of evidence or by technical or 
formal rules of procedure, except as provided by this chapter; but may 
make such investigation or inquiry or conduct such hearing in such 
manner as to best ascertain the rights of the parties.''Id.

III. Discussion of Significant Comments

    The Department received 18 comments, some joined by multiple 
individuals or entities, in response to the NPRM. Commenters included 
miners, benefits claimants, their representatives, a labor union, a 
coal mine company, an insurance company, industry and insurance trade 
associations, and one member of Congress. Five of the comments 
expressed general concerns about the black lung program and the 
difficulties miners face in obtaining benefits. The remaining comments 
addressed the proposed rules more specifically and are discussed below 
in the Section-by-Section Explanation. The Department appreciates these 
comments and has made several revisions to the final rule in response.
    The Department received no comments on the proposed revisions 
replacing the word ``shall'' with the word ``must'' or other 
appropriate plain-language phrase throughout the amended regulatory 
sections. See generally 80 FR 23743-44. Accordingly, the Department has 
retained those revisions in the final rule.

Section-by-Section Explanation

20 CFR 725.310 Modification of Awards and Denials
    (a) Section 725.310 implements section 22 of the Longshore Act, 33 
U.S.C. 922, as incorporated into the BLBA by 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 proposed adding a new paragraph (e) to this 
regulation to ensure that responsible operators (and their insurance 
carriers) fully discharge their payment obligations while pursuing 
modification of a benefits award. 80 FR 23744-45, 23751. In the absence 
of a Benefits Review Board or court-ordered stay of payments, the 
proposed rule required that an

[[Page 24466]]

operator's request to modify an effective award be denied unless the 
operator proved that it had complied with all of its payment 
obligations under that award and any other currently effective award 
(such as a medical benefits award) in the claim. The Department noted 
that an ``effective'' award is generally an uncontested award entered 
by a district director or any award entered by an administrative law 
judge or higher tribunal. 80 FR 23744; 20 CFR 725.502(a). The 
Department proposed the rule both to ensure that claimants are fully 
compensated and to protect the Trust Fund, which must pay effective 
awards when an operator fails to do so. 80 FR 23744-45.
    (b) The Department received several comments addressing proposed 
paragraph (e). Four commenters expressed support for the proposal. 
Noting that modification proceedings can add years to the claims 
process and citing examples, one commenter praised this rule as 
pragmatic because it allows operators with legitimate defenses to 
pursue modification while reducing the incentive for operators to 
improperly use modification as a means to delay payment of benefits. 
Another commenter praised the proposal as clearly consistent with the 
Act and agreed with the Department's position that the Trust Fund 
should not be burdened with paying benefits on behalf of operators 
during the modification period. Two additional commenters expressed 
general support for the rule.
    Six commenters opposed the rule, arguing either that the Department 
should withdraw the rule completely or that it should be revised. 
Several of these commenters argue that the proposed rule should be 
withdrawn because it is unauthorized by law, unfair, and unnecessary. 
These commenters also argue that the rule will effectively deprive 
operators of the opportunity to challenge medical expenses and 
attorneys' fees.
    The Department has fully considered the comments received and 
determined that the rule should not be withdrawn. The Department has, 
however, revised the final rule to address the commenters' concerns 
regarding medical expenses and attorneys' fees.
    (c) As explained in the NPRM, 80 FR 23744-45, Congress established 
the Trust Fund in 1977 to serve as a secondary payor when there is no 
operator that may be held liable or when the liable operator defaults 
on its payment obligations. Congress envisioned the Trust Fund as a 
payor of last resort, and intended to ``ensure that individual coal 
operators rather than the trust fund bear the liability for claims 
arising out of such operators' mines to the maximum extent feasible.'' 
S. Rep. No. 95-209 at 9, reprinted in Committee on Education and Labor, 
House of Representatives, 96th Cong., Black Lung Benefits Act and Black 
Lung Benefits Revenue Act of 1977 at 612 (Comm. Print) (1979).
    Yet operators were not always meeting their payment obligations 
under effective benefit awards, relying instead on the Trust Fund to 
pay benefits while they appealed or sought modification. The Department 
attempted to resolve any confusion on this issue when it promulgated 
extensive revisions to the black lung program regulations in 2000. 65 
FR 80009-11 (Dec. 20, 2000). In that rulemaking, the Department revised 
Sec.  725.502 with the specific intent of clarifying when a benefits 
award was ``effective,'' and thus payable by the liable operator. 62 FR 
3366 (Jan. 22, 1997) (with revisions to Sec.  725.502, ``[t]he 
Department hopes to increase operator compliance with effective 
awards.''); 65 FR 80009 (Dec. 20, 2000) (``The most important changes 
[to Sec.  725.502] were designed to make clear to responsible operators 
their obligations under the terms of an effective award of benefits 
even though the claim might still be in litigation.''). The Department 
noted that operators, contrary to Congressional intent, routinely used 
the Trust Fund as a surrogate to ``reduce the risk of losing interim 
payments in the event the award is reversed.'' 64 FR 55000 (Oct. 8, 
1999). The Department clearly expressed its position that operators, 
and not the Trust Fund, are required to pay benefits pursuant to an 
effective award notwithstanding the pendency of a modification 
petition. 64 FR 55000-01.
    The Department's efforts in 2000, however, have not remedied the 
problem. Operators often do not meet their legal obligation to pay 
benefits while challenging effective awards, whether by appeal to the 
Benefits Review Board or appropriate court, or by seeking modification. 
Cases like those cited in the NPRM--including Crowe ex rel. Crowe v. 
Zeigler Coal Co., 646 F.3d 435, 445 (7th Cir. 2011), and Hudson v. Pine 
Ridge Coal Co., LLC, No. 2:11-00248, 2012 WL 386736, *5 (S.D. W.Va. 
Feb. 6, 2012)--continue to arise. See, e.g., Bull Creek Coal Corp. v. 
Dir., OWCP, 6th Cir. No. 14-3573, operator's appeal dismissed Nov. 6, 
2014 (in post-2000 claim, operator sought modification after appealing 
effective benefits award to the court, but later moved to dismiss its 
appeal; modification petition remains pending and the Department's 
records indicate that the operator has not paid pursuant to the award); 
Dalton v. Dir., OWCP, 738 F.3d 779 (7th Cir. 2013) (in post-2000 claim, 
Department's records indicate operator delayed Trust Fund reimbursement 
for approximately ten years while pursuing appeals of initial awards 
and a later modification petition). Indeed, the Department has 
identified more than nine hundred claims in which the Trust Fund has 
paid effective benefits awards in the operator's stead since October 1, 
2010. And, as explained in the NPRM, the existing enforcement 
mechanisms are difficult to use in these circumstances. 80 FR 23744-45. 
Thus, the Trust Fund is routinely forced to pay interim benefits to 
entitled claimants and bear the risk that the benefits award was in 
error, contrary to Congress' intent. At the time of the 2000 
rulemaking, the Trust Fund was indebted to the U.S. Treasury in the 
amount of $5.487 billion. As of the end of fiscal year 2012 and after a 
restructuring, which included a one-time non-refundable allocation of 
$6.497 billion to the Fund, the Trust Fund's debt remained over $6 
billion. See Emergency Economic Stabilization Act of 2008, Public Law 
110-343, section 113 (Oct. 3, 2008); OWCP Annual Report to Congress for 
FY 2012 at 63.
    Thus, the rule addresses a longstanding problem; it is not, as some 
commenters suggest, simply a reaction to the concerns Judge Hamilton 
expressed in his Crowe concurring opinion over this type of operator 
misconduct. The rule is intended to curb an unlawful practice. It will 
prevent operators from indefinitely delaying payments to claimants or 
reimbursement of the Trust Fund for payments made on the operator's 
behalf. As a result, the rule will prevent operators from taking 
advantage of the safeguards built into the Act to protect claimants, 
mainly the payment of benefits from the Trust Fund when the liable 
operator fails to pay. The Department has a fiduciary duty to protect 
the Trust Fund from such misconduct. 26 U.S.C. 9501(a)(2); see also 
Marfork Coal Co. v. Weis, 251 F. App'x 229, 233 (4th Cir. 2007) (``The 
OWCP Director, who acts as trustee for the Black Lung Benefits Fund, is 
responsible for conserving its assets.''); Boggs v. Falcon Coal Co., 17 
Black Lung Rep. 1-62, 1-65 (Ben. Rev. Bd. 1992) (noting that the 
Director is a trustee of the Trust Fund charged with a duty to protect 
its assets); Truitt v. N. Am. Coal Corp., 2 Black Lung Rep. 1-199, 1-
202 (Ben. Rev. Bd. 1979) (same).
    (d) Several commenters argue that no language in either the text or 
legislative

[[Page 24467]]

history of Longshore Act section 22 authorizes this proposed rule. 
While section 22 does not contain explicit language contemplating this 
rule, other sections of the Longshore Act require employers to pay 
benefits under an effective award and therefore require payment of 
compensation due even while modification proceedings are pending. See, 
e.g., 33 U.S.C. 918, 921(a) (requiring payment of benefits pursuant to 
an award regardless of whether the award is final unless the order is 
stayed by an appellate tribunal); Williams v. Jones, 11 F.3d 247, 259 
(1st Cir. 1993) (holding that employers must continue to pay pursuant 
to an effective award unless they are able to prove that doing so would 
result in irreparable injury). It is common practice for Longshore 
employers to comply with their obligations to pay compensation pursuant 
to an effective award while pursuing modification. There simply is no 
secondary payor--like the Trust Fund in black lung claims--available to 
serve as an alternative source of compensation payments in every case 
in which an employer does not meet its legal obligations, so there is 
no need for the Longshore Act to address this issue explicitly. Thus, 
the absence of any explicit language in section 22 mandating such 
compliance does not make the black lung rule inconsistent with 
Longshore Act practice.
    This scenario also demonstrates why Congress incorporated the 
Longshore Act provisions into the BLBA with the qualification that the 
Department has authority to promulgate rules tailoring the incorporated 
provisions to the black lung program's specific needs. As discussed 
above (see Section II, supra), the Secretary's broad rulemaking 
authority under the BLBA specifically includes the ``discretion to 
deviate from the LHWCA procedures and to prescribe `such additional 
provisions, not inconsistent with those specifically excluded by this 
subsection, as [the Department] deems necessary.' '' Bethenergy Mines 
Inc. v. Dir., OWCP, 854 F.2d 632, 634-35 (3d Cir. 1988) (quoting 30 
U.S.C. 932(a)). The existence of the Trust Fund creates a need for a 
specific rule in the black lung program. Because the Department is 
authorized by statute to alter the procedures for modification, this 
rule is well within the Department's regulatory authority, even if 
section 22 does not explicitly require operators to demonstrate 
compliance with outstanding effective orders as a precondition to 
modification.
    These same commenters also argue that the proposed regulation 
violates the Black Lung Benefits Revenue Act of 1977, which created the 
Trust Fund and specifies the circumstances under which it may pay 
benefits. The Revenue Act, codified at 26 U.S.C. 9501(d), authorizes 
the Trust Fund to pay benefits if the responsible operator either has 
not commenced payment within 30 days of an initial determination of 
eligibility, or has not made a payment within 30 days of its due date. 
26 U.S.C. 9501(d). By regulation, the Department has provided that such 
payments by the Trust Fund are mandatory. See 20 CFR 725.420(c); 
725.522. The commenters reason that because that statute authorizes 
(and the regulations compel) the Trust Fund to pay benefits to an 
entitled claimant when a liable operator fails to pay, the statute 
necessarily endorses the operator's refusal to pay. The statute 
contains no such endorsement. In fact, the statutory and regulatory 
enforcement provisions demonstrate that when Congress created the Trust 
Fund, it did not suspend operators' obligations to pay benefits once an 
effective or final order is issued. See 33 U.S.C. 918(a), incorporated 
by 30 U.S.C. 932(a) and implemented by 20 CFR 725.605 (establishing 
procedures for enforcement of effective awards even if those awards are 
not final); 33 U.S.C. 921(d), incorporated by 30 U.S.C. 932(a) and 
implemented by 20 CFR 725.604 (allowing for enforcement of final awards 
of benefits in federal court); Hudson v. Pine Ridge Coal Co., LLC, No. 
2:11-00248, 2012 WL 386736, at *5 (S.D. W.Va. Feb. 6, 2012) (enforcing 
BLBA compensation order notwithstanding pendency of operator's 
modification petition). The comment provides no support for its 
assertion that Congress, in effect, approves of employers ignoring 
their BLBA payment obligations. See also 65 FR at 80011 (Dec. 20, 2000) 
(in revising Sec.  725.502, rejecting similar comment and concluding 
that Congress did not intend the Trust Fund ``to absorb all operators' 
liabilities as a matter of course until the conclusion of litigation in 
every approved claim'').
    (e) Several commenters allege that the proposed rule effectively 
denies the modification remedy to operators by eliminating their 
financial incentive to pursue modification. They contend that even if 
operators are successful on modification, they will be unable to recoup 
the benefits that were paid pursuant to previously effective awards. 
See 20 CFR 725.540(a) (allowing for recoupment of overpaid benefits). 
The Department does not believe that the commenters' perceived problems 
with the system for recovering overpayments justify withdrawing this 
rule.
    The commenters allude to substantive and procedural reasons that 
operators may struggle to recover overpayments. Substantively, 
overpayments may not be recovered when the claimant is without fault in 
receiving the overpayment and if recovery would defeat the purpose of 
the Act or be against equity and good conscience. 20 CFR 725.542. This 
is true whether the overpayment is owed to an operator or to the Trust 
Fund. See 20 CFR 725.547. The initiation of payments prior to final 
adjudication is a characteristic of workers' compensation programs 
generally. See, e.g., Doucette v. Hallsmith/Sysco Food Servs., Inc., 10 
A.3d 692, 694 (Me. 2010) (recognizing express provision in Maine 
workers' compensation law that requires payment of benefits pending 
appeal and holding that court is not empowered to stay such payments); 
Coley v. Camden Assoc., Inc., 702 A.2d 1180, 1184 (Conn. 1997) 
(Connecticut's workers' compensation law requires employers or insurers 
to pay benefits to claimants during the pendency of appeal); Garcia v. 
McCord Gasket Corp., 534 N.W.2d 473, 478 (Mich. 1995) (affirming 
dismissal of employer's appeal for failure to pay benefits pursuant to 
effective, but not final, order as required by Michigan's workers' 
compensation law). Although this practice carries the risk that some 
claimants will receive compensation to which they were not entitled, 
that risk has been deemed an acceptable part of the workers' 
compensation compromise. Under the Act and regulations, the risk of an 
unrecoverable overpayment exists in every case where benefits are 
awarded, but the legislative history of the Act demonstrates Congress 
intended that operators, not the Trust Fund, should bear that risk. 
See, e.g., Old Ben Coal Co. v. Luker, 826 F.2d 688, 693 (7th Cir. 
1987); Nowlin v. Eastern Assoc. Coal Corp., 331 F. Supp. 2d 465, 476 
(N.D. W.Va. 2004) (``[T]he public is served by placing the risk of non-
collection of overpayments on the coal mine operator rather than on the 
Trust Fund'').
    Procedurally, these commenters argue that operators encounter 
difficulties in obtaining overpayment orders from the Department, and 
then in enforcing them against claimants because the BLBA does not 
grant jurisdiction to any court for this purpose. Overpayment 
proceedings are governed by Sec. Sec.  725.547(b) and 725.548. 20 CFR 
725.547(b), 725.548. Section 725.547(b) specifies that ``[n]o operator 
or carrier may recover, or make an adjustment of, an overpayment 
without prior application to and approval'' by the

[[Page 24468]]

Department. Section 725.548(a) authorizes district directors to issue 
appropriate orders to protect the rights of the parties, and Sec.  
725.548(b) provides that disputes will be resolved through the same 
adjudication procedures that govern claims. The Department understands 
its essential role in processing operator overpayment requests and is 
committed to cooperating with the parties to ensure prompt resolution. 
To that end, the Department will review its procedures for handling 
operator overpayment requests and will ensure that all personnel are 
properly trained in their handling as part of this rule's 
implementation.
    Operator enforcement of overpayment orders, however, is an issue 
that is outside the scope of this rulemaking. Because this rule does 
not impose any new obligations on operators (see 80 FR 23744 
(explaining that operators are legally required to pay pursuant to 
effective awards notwithstanding the pendency of a modification 
petition)), it also does not impose a new need for an enforcement 
remedy. These concerns represent a general complaint about the law as 
it currently stands and therefore should be directed to Congress, not 
the Department. The Department may not create a new cause of action in 
the courts. See Kontrick v. Ryan, 540 U.S. 443, 452 (2004) (``Only 
Congress may determine a lower federal court's subject-matter 
jurisdiction.''); Castaneda v. Immigration & Naturalization Serv., 23 
F.3d 1576, 1579 n.2 (10th Cir. 1994) (``[A]dministrative agencies 
cannot by promulgation or interpretation of their own regulations 
either augment or nullify the jurisdiction of the federal courts as 
delimited by Congress.'')
    In sum, this rule does not impose any payment obligations on 
operators that do not exist currently, and thus should have no impact 
on operators' incentive to pursue modification when they believe it is 
warranted. See, e.g., Crowe, 646 F.3d at 445 (Hamilton, J., concurring) 
(noting that a pending modification request does not suspend an 
operator's obligation to pay pursuant to an effective award); Hudson, 
2012 WL 386736, at *5 (same). Nor does this rule remove the primary 
incentive for operators to pursue modification: obtaining an order 
relieving them from the obligation to pay any additional benefits.
    (f) The commenters contend that this rule is unfair because 
claimants and operators are treated differently. Specifically, 
operators must demonstrate that they have complied with their payment 
obligations before seeking modification of an award, but claimants are 
not similarly required to repay any overpaid benefits before seeking 
modification of a denial.
    An overpayment could occur in any case where an adjudicator awards 
benefits to the claimant--thereby entitling the claimant to interim 
benefit payments pending final adjudication--and a higher-level 
adjudicator or appellate body denies the claim. See 20 CFR 725.522(b). 
Significantly, a decision reversing an award to a denial does not 
compel a claimant to repay previously paid benefits because the 
overpaid claimant has a statutory right to seek waiver of recovery of 
the overpayment. See 42 U.S.C. 404(b), as incorporated by 30 U.S.C. 
923(b); see also 20 CFR 725.541; 725.542; 725.547. These provisions 
allow each overpaid claimant to argue that he or she need not repay the 
benefits because he or she was without fault in incurring the 
overpayment, and repayment would either defeat the purpose of the Act 
or be against equity and good conscience.
    Claimants only have one year from the date of a denial of benefits 
to request modification. Yet waiver determinations commonly take more 
than that one year to complete. They are factually involved, requiring 
compilation of a completely different record addressing the claimant's 
role in creating the overpayment and the claimant's current financial 
position. As in a benefits claim proceeding, a district director's 
waiver decision is not binding if the claimant requests an 
administrative law judge hearing, and no repayment by the claimant is 
due until after the administrative law judge considers the waiver 
request. See 20 CFR 725.419(a), (d); 20 CFR 725.548(b). Thus, requiring 
claimants to repay overpayments before seeking modification could put 
them in the untenable position of having to choose between two 
statutory rights: (1) Repaying overpaid benefits within the one-year 
time limit for seeking modification and foregoing their right to seek a 
repayment waiver; or (2) seeking a repayment waiver and foregoing the 
right to seek modification.
    This situation is not comparable to an operator's refusal to pay 
benefits pursuant to an effective award. Under an effective award, an 
operator is legally required, by both the BLBA and its implementing 
regulations, to pay benefits without any further action. 33 U.S.C. 
921(b)(3) and (c), as incorporated by 30 U.S.C. 932(a); 20 CFR 725.502; 
Crowe, 646 F.3d at 445 (operator is entitled to seek modification, but 
``not legally entitled simply to ignore the final order of payment.''); 
Vincent v. Consolidated Operating Co., 17 F.3d 782, 785-86 (5th Cir. 
1994) (enforcing award under the Longshore Act despite employer's 
modification request); Williams v. Jones, 11 F.3d 247, 259 (1st Cir. 
1993) (same); Hudson, 2012 WL 386736, at *5 (denying motion to dismiss 
enforcement petition because of pendency of modification request). 
Section 725.310(e) simply requires operators to comply with their legal 
obligations before accessing the modification process. Moreover, the 
one-year period during which an operator may seek modification is 
constantly shifting because it runs from the date of last payment of 
benefits, and benefits are paid monthly. Thus, an operator might be in 
a position to seek modification many years after the initial award was 
entered.
    (g) Although the Department has determined that proposed Sec.  
725.310(e) should be promulgated, the final rule contains several 
revisions based on comments received.
    Several commenters contend that the rule would require an operator 
who wants to challenge a particular medical expense or an attorney's 
fee award to delay seeking modification until ancillary litigation 
regarding the disputed amount has concluded. The comment reveals an 
ambiguity in the proposed rule that the Department has clarified in the 
final rule by more specifically describing in Sec.  725.310(e)(1) which 
awards an operator must pay before pursuing modification.
    Miners who meet the BLBA's entitlement criteria are entitled to 
medical benefits for treatments necessitated by their pneumoconiosis 
and resultant disability. 20 CFR 725.701(a). A typical award of 
benefits will order the responsible operator to pay medical benefits 
generally, but will not contain findings as to whether any specific 
medical expense is compensable under the Act and regulations. The 
regulations recognize several valid reasons why a particular bill may 
be disputed, including that the medical service or supply was not for a 
pulmonary disorder or was unnecessary. 20 CFR 725.701(e). Operators 
have the right to dispute their liability for individual medical bills 
or charges and to take an unresolved dispute over the compensability of 
a medical bill to the Office of Administrative Law Judges for 
resolution. See 20 CFR 725.708. Any employer contest of an individual 
medical bill that goes to an administrative law judge results either in 
an order requiring payment or an order relieving the employer of the 
obligation to pay. See 20 CFR 725.701.
    Thus, it is not uncommon for there to be multiple effective orders 
compelling an employer to pay medical benefits in

[[Page 24469]]

a given case. While proposed Sec.  725.310(e)(1) requires payment of 
only ``currently effective'' awards as defined by Sec.  725.502(a), it 
does not identify whether a general award of medical benefits or a 
later award addressing specific medical charges triggers the operator's 
obligation to pay before being allowed to pursue modification. The 
Department has modified the final rule to clarify that only effective 
orders directing payment of specific medical bills must be paid before 
an operator may pursue modification. Such an order may arise in two 
ways. First, an effective order may arise if an operator does not 
timely contest specific medical bills brought to its attention by a 
district director. See 20 CFR 725.502(a)(2). Second, an effective order 
directing the payment of specific medical bills may be entered by an 
administrative law judge after a hearing on the compensability of those 
medical charges. See id. This revision ensures that operators will 
maintain the right to contest the compensability of each individual 
medical expense before an administrative law judge without burdening 
the right to seek modification of the underlying benefits award while 
review is underway. The final rule also protects claimants and the 
Trust Fund by requiring prompt payment or reimbursement of medical 
expenses that have been adjudicated to be compensable.
    The commenters similarly contend that the proposed rule would 
require employers to delay seeking modification until ancillary 
litigation regarding attorneys' fees is concluded. The proposed rule 
requires that attorneys' fees be paid before an employer is allowed to 
pursue modification provided two conditions are met: The fee must be 
``approved,'' and the underlying benefits award must be final (i.e., 
the time to appeal the benefits award has expired or appellate review 
has concluded). The proposed rule does not define the term 
``approved,'' and the Department recognizes that the term may be 
susceptible to multiple interpretations.
    In proposing Sec.  725.310(e)(1), the Department intended to 
require operators to pay only those amounts that are otherwise due and 
payable as a precondition to seeking modification. With regard to 
attorney fees, the case law construing section 28 of the Longshore Act, 
the source of the BLBA's attorneys' fee provision (see 33 U.S.C. 928, 
as incorporated by 30 U.S.C. 932(a)), is clear that attorneys' fee 
awards are not due and payable until the underlying benefit award is 
final, see Thompson v. Potashnick Constr. Co., 812 F.2d 574, 577 (9th 
Cir. 1987), and the fee award is final as well. See Johnson v. Dir., 
OWCP, 183 F.3d 1169, 1171 (9th Cir. 1999). See also 20 CFR 725.367(b) 
(requiring payment of attorney fee only ``after the award of benefits 
becomes final''). Thus, the Department has amended Sec.  725.310(e) to 
clarify that an employer must pay attorney fee awards prior to 
modification only if both the underlying benefit award and the fee 
award are final as defined by 20 CFR 725.419(d) (district director 
decision), 725.479(a) (administrative law judge decision) or 802.406 
(Benefits Review Board decision).
    Two commenters object to proposed Sec.  725.310(e)(1)(ii), which 
requires employers to reimburse the Trust Fund for benefits paid to 
claimants ``with such penalties and interest as are appropriate'' prior 
to seeking modification. The commenters assert that the term 
``penalties'' is ambiguous and confusing and that its meaning should be 
clarified. They note that the Department has proposed amending other 
regulations (Sec. Sec.  725.601 and 725.607), in part to make clear 
that additional compensation is not a ``penalty.'' The commenters also 
suggest that the modifying clause, ``as are appropriate,'' could be 
read as a grant of discretion to the adjudicator to fashion extra-
regulatory penalties.
    The commenters are correct that the term ``penalties'' is not 
intended to refer to the additional compensation that is payable to 
claimants under Sec.  725.607, and the Department did not intend to 
authorize adjudicators to assess new penalties against operators. The 
proposed rule refers to certain statutory and regulatory civil money 
penalties that are payable to the Trust Fund. These penalties may be 
imposed for failure to secure the payment of benefits, i.e., an 
employer's failure either to secure commercial insurance or receive 
permission to self-insure its benefit liability (30 U.S.C. 933(d); 20 
CFR 726.300) and for an employer's failure to file a required report 
(30 U.S.C. 942(b); 20 CFR 725.621(d)). After considering the 
commenters' objections, the Department has determined that the language 
requiring operators to pay civil money penalties as a condition to 
seeking modification of an award of benefits is unnecessary. Therefore, 
the Department has deleted the words ``penalties'' and ``as are 
appropriate'' from Sec.  725.310(e) in the final rule.
    The Department has revised Sec.  725.310(e) in the final rule to 
reflect these comments and to simplify the rule. Paragraph (e)(1) now 
defines ``effective'' and ``final'' orders by reference to the 
appropriate regulations. Paragraph (e)(2) retains the general 
requirement that operators must meet their payment obligations before 
pursuing modification, which appeared in proposed paragraph (e)(1). The 
Department has removed the phrase ``currently effective'' in describing 
orders that must be paid because it is redundant; orders are no longer 
``effective'' when they are vacated by a higher tribunal or superseded 
by an effective order on modification. See 20 CFR 725.502(a)(1). 
Revised paragraphs (e)(2)(i)-(v) describe the particular obligations an 
operator must prove it has satisfied and implements the revisions 
described in detail above regarding orders awarding medical benefits or 
attorneys' fees, and striking the words ``penalties. . . . as are 
appropriate'' from obligations an operator must satisfy.
    (h) No other significant comments were received concerning this 
section, and the Department has promulgated the remainder of the 
regulation as proposed.
20 CFR 725.413 Disclosure of Medical Information
    (a) The Department proposed a new provision that would require the 
parties to exchange all medical information developed in connection 
with a claim. 80 FR 23745-47, 23752. Currently, parties may develop 
medical information (subject to certain limits on examinations of the 
miner) in excess of the evidentiary limitations set out in Sec.  
725.414, and then select from that information those pieces they wish 
to submit into evidence. Medical information developed but not 
submitted into evidence generally remains in the sole custody of the 
party who developed it unless an opposing party is able to obtain the 
information through formal discovery.
    The Department's proposed rule would change this status quo by 
requiring parties to share medical information developed in connection 
with a claim. The Department articulated several reasons for the 
change. See 80 FR 23746-47. First, experience has demonstrated that 
miners may be harmed if they do not have access to all information 
about their health, and the primary purpose of the Mine Safety and 
Health Act is to protect the health and safety of miners. To illustrate 
the potential for adverse impact on the miner's health, the Department 
described the proceedings in miner Gary Fox's claims for benefits, 
where the coal-mine operator withheld medical information documenting 
complicated pneumoconiosis from both

[[Page 24470]]

the miner and some of its own medical experts. Second, by requiring an 
exchange of medical information, the rule protects parties who do not 
have legal representation who can assist in the formal discovery 
process. Finally, allowing parties fuller access to medical information 
may lead to better, more accurate decisions on claims--a goal that is 
consistent with Congressional intent.
    In addition to establishing the disclosure requirement and time 
frames within which parties must exchange medical information, the 
proposed rule set forth a non-exclusive list of sanctions an 
adjudication officer may impose on the party or the party's attorney 
for failure to disclose medical information in accordance with the 
rule. 80 FR 23752. But the rule provided that sanctions may be imposed 
only after giving the party an opportunity to demonstrate ``good 
cause'' for non-disclosure, and the sanctions imposed must be 
``appropriate to the circumstances.'' Id. The proposed rule also 
required the adjudication officer to consider whether sanctions should 
be mitigated because the party was not represented by an attorney when 
the non-disclosure occurred, or the non-disclosure was attributable 
solely to the party's attorney.
    (b) The Department received several comments on the proposed rule. 
The comments ranged from supporting the proposed rule's promulgation 
without change to advocating the rule's withdrawal. Those commenters 
supporting the rule agreed with the Department that the rule is a fair 
and reasonable method of protecting the health and safety of miners, 
noting variously that it was ``critical'' and ``ethical'' for miners to 
have access to their health records. Others described experiences in 
representing claimants where the operator had skewed the medical 
evidence by withholding various pieces of medical information from 
their own experts or only partially disclosing a physician's opinion. A 
Member of Congress praised the Department's efforts, noting that the 
proposed rule could prevent harm to a miner who might otherwise be 
unaware of medical problems he or she may suffer and would level the 
playing field in claims adjudications, especially for unrepresented 
miners who would have difficulty navigating the discovery process.
    Those commenters opposed to proposed Sec.  725.413 state that the 
Department does not have statutory authority to promulgate the rule, or 
to impose sanctions, or both. They contend that neither the 
incorporated Social Security Act and Longshore Act provisions (see 
Section II, supra) granting the Secretary regulatory authority nor the 
Administrative Procedure Act (APA) are sufficient to sustain 
promulgation of this regulation. They also argue that the rule is 
unnecessary because only one attorney engaged in the conduct the rule 
addresses. They further contend that the Department has not 
demonstrated a quantifiable positive impact on miners' health that 
would result from the rule. If the Department promulgates a medical 
information disclosure rule, several commenters ask for clarification 
of specific portions of the rule.
    After giving full consideration to the comments, the Department 
believes the rule is important to protecting the health of miners and 
is promulgating it with certain revisions described below. The 
following discussion addresses all of the significant comments the 
Department received and explains each revision in the final rule.
    (c) Some commenters ask the Department to withdraw the rule, 
arguing that the Department lacks statutory authority to promulgate it. 
The Department disagrees with this comment. As discussed in detail 
above (see Section II, supra), Congress granted the Secretary broad 
rulemaking authority generally, and in governing evidentiary matters 
specifically. See 30 U.S.C. 923(b) (incorporating 42 U.S.C. 405(a)); 
936(a). The statute also plainly authorizes the Department to depart 
from traditional procedural and evidentiary rules (such as those 
governing discovery) in order to best ascertain the rights of the 
parties in claims adjudications. 33 U.S.C. 923(a), as incorporated by 
30 U.S.C. 932(a).
    The objecting commenters dispute the Department's reliance on these 
statutory authorities. Without acknowledging the Secretary's general 
rulemaking authority under 30 U.S.C. 936(a), they contend that neither 
the incorporated Longshore Act nor the incorporated Social Security Act 
provisions support promulgation of Sec.  725.413. First, these 
commenters assert that the Department's reliance on Longshore Act 
section 23(a) is hypocritical because proposed Sec.  725.413 is itself 
a technical rule of procedure. While Sec.  725.413 is undoubtedly 
procedural, it will relieve the parties from the burden of complex 
discovery rules and will simplify claim proceedings and make them 
fairer, especially for those parties not represented by counsel. The 
rule is thus fully consistent with section 23(a)'s overarching command 
to ``best ascertain the rights of the parties.''
    Next, the same commenters state that the Department cannot rely on 
Social Security Act section 205(a), which they claim has no 
applicability to Part C BLBA claim proceedings (i.e., claims filed 
after 1973 and administered by the Department) because it is located in 
Part B of the Act, and provides no authority for importing Social 
Security Administration procedures into Part C claim adjudications. The 
commenters are simply mistaken on their first point and misconstrue the 
Department's action on their second. The fact that the Social Security 
Act incorporation appears in Part B of the Act does not preclude the 
Secretary from basing regulations for Part C claims on that authority. 
30 U.S.C. 940 (providing that ``amendments made by the Black Lung 
Benefits Act of 1972,'' which included the incorporation of Social 
Security Act section 205(a), ``shall, to the extent appropriate, also 
apply to this part [C].''). Indeed, both the District of Columbia and 
Fourth Circuit Courts of Appeals have upheld the Department's 
procedural regulations governing Part C claims by relying at least in 
part on this statutory authority. See Nat'l Min. Ass'n. v. Dep't. of 
Labor, 292 F.3d 849, 873-7 (D.C. Cir. 2002) (holding that section 
205(a) and 5 U.S.C. 556(d)--which allows agencies to exclude ``unduly 
repetitious evidence'' as ``a matter of policy''--constituted 
sufficient authority for the regulatory evidence limitations at 20 CFR 
725.414, which are applicable to Part C claims); Elm Grove Coal Co. v. 
Dir., OWCP, 480 F.3d 278, 293 (4th Cir. 2007) (holding in Part C claim 
that incorporation of section 205(a), Administrative Procedure Act 
section 556(d), and grant of general rulemaking authority in 30 U.S.C. 
936 authorize the Secretary ``to adopt reasonable regulations on the 
nature and extent of the proofs and evidence in order to establish 
rights to benefits under the Act''). Moreover, Sec.  725.413 does not 
import Social Security Administration procedures but instead provides a 
new rule applicable to Part C claims.
    Promulgating a procedural rule requiring parties to exchange 
medical information developed in connection with a claim--a rule that 
governs proceedings before the agency, is party-neutral, protects a 
miner's health, and assists unrepresented parties--falls well within 
these statutory authorities.
    (d) Apart from requiring the exchange of medical information, 
several commenters contend that the Department lacks statutory 
authority to promulgate regulations permitting the imposition of 
sanctions on parties or their attorneys who fail to properly

[[Page 24471]]

disclose medical information. In support, they assert that: The 
Administrative Procedure Act (APA), 5 U.S.C. 501 et seq., and section 
558(b) in particular, 5 U.S.C. 558(b), prohibit an agency from imposing 
sanctions; only courts established under Article III of the 
Constitution (i.e., federal district and appellate courts) may impose 
sanctions of fines and imprisonment; and neither the APA nor the BLBA 
authorizes sanctioning of attorneys in any event.
    To the extent these commenters base their objections on the APA, 
their comments misapprehend how the APA's provisions interface with the 
BLBA. By statute, the APA does not apply to BLBA adjudications except 
as ``otherwise provided'' in the Mine Safety and Health Act. 30 U.S.C. 
956 (``Except as otherwise provided in this chapter, the provisions of 
sections 551 to 559 and sections 701 to 706 of Title 5 shall not apply 
to the making of any order, notice, or decision made pursuant to this 
chapter[.]''). The BLBA otherwise provides for application of the APA 
provisions governing hearings--specifically, 5 U.S.C. 554 (which, in 
turn, refers to 5 U.S.C. 556)--by incorporating Longshore Act section 
19(d). 33 U.S.C. 919(d), as incorporated by 30 U.S.C. 932(a). But as 
explained above (see Section II, supra), that incorporation is subject 
to an important limitation: The Longshore Act provisions are 
incorporated ``except as otherwise provided . . . by regulations of the 
Secretary.'' 30 U.S.C. 932(a). Thus, ``under the express language of 
the BLBA, the APA does not trump [a black lung program] regulation.'' 
Amax Coal Co. v. Dir., OWCP, 312 F.3d 882, 893 (7th Cir. 2002); accord 
Midland Coal Co. v. Dir., OWCP, 149 F.3d 558, 563 (7th Cir. 1998) 
(overruled on other grounds by Saban v. U.S. Dep't of Labor, 509 F.3d 
376 (7th Cir. 2007)).
    Unlike the APA hearing provisions, neither the BLBA nor the 
Department's implementing regulations calls for application of section 
5 U.S.C. 558, the APA section the commenters rely upon most heavily to 
challenge the Department's authority to impose sanctions under Sec.  
725.413. Section 558(b) provides that ``[a] sanction may not be imposed 
. . . except within jurisdiction delegated to the agency and as 
authorized by law.'' 5 U.S.C. 558(b). The Mine Safety and Health Act 
specifically excludes this APA section from incorporation unless 
``otherwise provided,'' and the BLBA does not ``otherwise provide'' for 
its application. 30 U.S.C. 956. Nor is this provision incorporated 
through the circuitous Longshore Act route that brings the APA's 
hearing-related provisions into the BLBA. Thus, the commenters' 
reliance on section 558 is misplaced.
    Even assuming that (1) all provisions of the APA apply and (2) the 
Department may not vary them by regulation, solid authority holds that 
agencies may impose sanctions, short of fines and imprisonment, to 
enforce compliance with their discovery rules, particularly discovery 
orders made in the context of judicial-type proceedings. See Atlantic 
Richfield Co. v. U.S. Dep't of Energy, 769 F.2d 771, 794 (D.C. Cir. 
1984). The District of Columbia Circuit recognized in Atlantic 
Richfield that it would be ``incongruous to grant an agency authority 
to adjudicate--which involves vitally the power to find the material 
facts--and yet deny authority to assure the soundness of the 
factfinding process'' through use of discovery sanctions. See also 
Roadway Express Inc. v. U.S. Dep't of Labor, 495 F.3d 477, 485 (7th 
Cir. 2007) (approving of ALJ's use of discovery sanction to ``level the 
playing field'' where party's non-compliance ``made it impossible'' for 
the ALJ to decide the case on the merits); McAllister Towing & Transp. 
Co., Inc. v. NLRB, 156 Fed. App'x 386, 388 (2d Cir. 2005) (affirming 
ALJ's imposition of discovery sanctions, citing Atlantic Richfield). 
But see NLRB v. Int'l Medication Sys., Ltd., 640 F.2d 1110, 1114 (9th 
Cir. 1981) (agency was required to enforce a subpoena through federal 
district court and could not preclude employer from introducing 
evidence on issue as sanction for failure to comply with subpoena). And 
while it is true that the APA prohibits an agency's imposition of 
sanctions ``except within jurisdiction delegated to the agency and as 
authorized by law,'' 5 U.S.C. 558(b), this provision, even if 
applicable, does not preclude sanctions aimed at protecting the 
integrity of the administrative process. Am. Bus Ass'n v. Slater, 231 
F.3d 1, 7 (D.C. Cir. 2000). See also Davy v. SEC, 792 F.2d 1418, 1421 
(9th Cir. 1986) (general grant of regulatory authority to SEC was 
sufficient to allow adoption of rule providing for sanctioning 
accountants practicing before the agency).
    Contrary to the commenters' implication, no different rule applies 
when sanctioning parties' representatives. Agencies have the inherent 
authority to discipline lawyers who appear before them. See Polydoroff 
v. I.C.C., 773 F.2d 372, 374 (D.C. Cir. 1985). See also 80 FR 28768, 
28769-75 (May 19, 2015) (rejecting same concerns raised in response to 
the proposed Office of Administrative Law Judges Rules of Practice and 
Procedure, which also allowed imposition of sanctions in certain 
circumstances).
    Nor does section 27 of the Longshore Act, 33 U.S.C. 927, 
incorporated into the BLBA by 30 U.S.C. 932(a), preclude the Department 
from imposing discovery sanctions. That provision authorizes 
adjudication officers to refer acts of contempt to a United States 
district court for punishment by fine or imprisonment. It does not 
preclude the Department from imposing the lesser sanctions set out in 
the proposed rule. See Atlantic Richfield, 769 F.2d at 795 (noting that 
``[a]n evidentiary preclusion order falls far short of an effort to 
exact compliance with a subpoena by a judgment of fine or 
imprisonment'').
    Two commenters state that the list of possible sanctions in 
proposed Sec.  725.413(c)(2) is unclear because it is non-exclusive, 
suggesting that the Department strike the sanctions list from the rule. 
The Department anticipates that in most instances, an adjudication 
officer will impose one of the listed sanctions, and therefore the 
presence of a sanctions list leads to greater clarity. An adjudication 
officer, who is charged with governing the conduct of proceedings and 
resolving contested issues of fact or law (see generally 20 CFR 
725.455), should be free, however, to fashion a remedy unique to the 
particular case at hand when warranted. But to clarify this provision 
and allay any concerns that the non-exclusive list could lead to the 
imposition of fines or imprisonment, the Department has revised the 
rule to preclude these sanctions. Fines and imprisonment are inherent 
in contempt powers, which section 27 of the Longshore Act vests in the 
federal courts. 33 U.S.C. 927, as incorporated by 30 U.S.C. 932(a). 
This revision appears at Sec.  725.413(e)(3) in the final rule.
    Finally, one commenter proposed expanding available sanctions to 
include permanent disbarment of attorneys from all BLBA practice. The 
Department does not believe that this sanction is necessary to enforce 
the medical information disclosure rule effectively. An adjudicator's 
authority extends to determining the merits of an individual claim. 
See, e.g., 33 U.S.C. 919(a), as incorporated by 30 U.S.C. 932(a) (the 
adjudicator has the ``authority to hear and determine all questions in 
respect of [a] claim''). Thus, the Department believes that any 
sanction's impact should be confined to the claim under consideration. 
The sanctions listed in Sec.  725.413 are claim-specific and should be 
sufficient to protect the integrity of the claims process. The 
Department therefore declines to adopt this suggestion.

[[Page 24472]]

    (e) Three commenters argue that requiring parties to exchange 
medical information is an overreaction to an isolated case, claiming 
that only one attorney engaged in the conduct addressed by proposed 
Sec.  725.413. These commenters state that the Department cited only 
one case involving undisclosed medical information in the NPRM, and 
failed to fully assess the need for the rulemaking.
    These comments are not accurate. Although the Department 
illustrated the need for the rule with a detailed summary of miner Gary 
Fox's claims, it also cited two additional cases (involving different 
attorneys) in the NPRM. 80 FR 23746. More importantly, the issue of 
withholding medical information generated by non-testifying experts has 
persistently recurred in black lung claims and has been litigated by 
some members of the associations making this comment. Several other 
commenters listed and described additional claims in which medical 
evidence was withheld. These cases, along with others the Department 
has identified, generally fall into three categories. In the first, the 
adjudication officer denies the party's (either the claimant's or the 
operator's) motion to compel discovery of the medical information 
because the party did not meet the standard for gaining discovery of a 
non-testifying expert's opinion imposed under the Office of 
Administrative Law Judges Rules of Practice and Procedure (OALJ Rules). 
See, e.g., Keener v. Peerless Eagle Coal Co., ALJ Ruling and Order on 
Claimant's Motion to Compel and Employer's Motion for Protective Order, 
2004-BLA-06265 (Apr. 12, 2005), aff'd BRB Decision and Order, BRB No. 
05-1008 (Jan. 26, 2007); Lester v. Royalty Smokeless Coal Co., ALJ 
Decision and Order on Remand Granting Benefits, 2004-BLA-05700 (Mar. 4, 
2008). In the second, the claimant's motion to compel is granted, but 
the employer still avoids disclosure by accepting liability for 
benefits and paying the claim. See, e.g., Daugherty v. Westmoreland 
Coal Co., ALJ Order Remanding Case to District Director, 2001-BLA-00594 
(Mar. 21, 2005); Renick v. Consolidation Coal Co., ALJ Order of Remand 
for Payment, 2002-BLA-00083 (Sept. 9, 2002); and Harris v. Westmorland 
Coal Co., Order Denying Claimant's Request for Reconsideration, 1998-
BLA-0188 (Aug. 7, 1998). And in the third, the motion to compel is 
granted and the medical information is disclosed. See, e.g., Wood v. 
Elkay Mining Co., ALJ Decision and Order--Awarding Benefits, 2001-BLA-
00701 (May 23, 2007); Huggins v. Windsor Coal Co., BRB Decision and 
Order, BRB No. 06-0710 (Aug. 15, 2007). It is the first two categories 
of cases in which Sec.  725.413 will change the result by requiring the 
exchange of previously undisclosed medical information.
    These commenters also assert that the Department failed to quantify 
the general impact of non-disclosure on miners' health. Doing so with 
any certainty is impractical for several reasons. By their nature, 
these cases come to light only when a party takes affirmative action to 
discover medical information; the Department cannot quantify the volume 
of undisclosed medical information in cases where parties do not pursue 
discovery of that information and, in fact, might not even know of its 
existence. The same is true in those instances where the employer has 
chosen to accept liability for the claim rather than disclosing the 
non-testifying expert's opinion. The Department also cannot assess 
whether any particular piece of medical information would have an 
impact on any one miner's course of treatment or disease. But common 
sense dictates that better-informed miners and medical providers are 
able to make better decisions regarding a miner's care.
    And, to the extent these commenters are correct in stating that, 
with very few exceptions, parties already exchange all medical 
information developed, they should not be affected by the final rule. 
Apart from a slightly earlier deadline for exchanging medical 
information, Sec.  725.413 will not change those parties' current 
practice.
    Despite the practical barriers to the suggested analysis, Congress 
was certain in its primary direction to the Department: ``[T]he 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). Congress also explicitly recognized the importance of 
medical information to miners' health when it mandated medical 
screening to detect pneumoconiosis and provided that miners with 
evidence of pneumoconiosis could transfer to less-dusty areas of the 
mine site. 30 U.S.C. 843(a) (requiring underground coal mine operators 
to offer chest X-ray evaluations to miners periodically); 30 U.S.C. 
843(b) (``[A]ny miner who, in the judgment of the Secretary of Health 
and Human Services based upon [a chest X-ray] reading or other medical 
examinations, shows evidence of the development of pneumoconiosis shall 
be afforded the option of transferring from his position to another 
position in any [less-dusty] area of the mine, for such period or 
periods as may be necessary to prevent further development of such 
disease[.]''). Section 725.413 fully comports with Congress' desires.
    (f) The Department received several comments suggesting various 
clarifications and other changes to the proposed definition of 
``medical information'' at Sec.  725.413(a). As proposed, ``medical 
information'' includes medical data about a miner that was developed in 
connection with a claim for benefits (Sec.  725.413(a)) and that is: 
(1) An examining physician's assessment of the miner, including 
findings, test results, diagnoses, and conclusions (Sec.  
725.413(a)(1)); or (2) any other physician's or medical professional's 
opinion or interpretation of tests, procedures and related 
documentation, but only to the extent they address the miner's 
respiratory or pulmonary condition (Sec.  725.413(a)(2)-(4)). 80 FR 
23747, 23752. Thus, the medical data subject to disclosure is generally 
limited to data generated in the claim's litigation and relevant to the 
primary question in the claim--the miner's respiratory or pulmonary 
condition.
    (1) Two commenters express concern that proposed Sec.  725.413(a) 
does not specifically exclude a miner's medical treatment records from 
the definition of ``medical information'' subject to mandatory exchange 
between parties. As the Department explained in the NPRM, 80 FR 23747, 
treatment records are not medical data a party ``develops in connection 
with a claim'' and thus do not meet the definition of ``medical 
information.'' Instead, these records are generated in the routine 
course of a miner's treatment and, if pertinent to the miner's 
respiratory or pulmonary condition, are admissible without limitation. 
20 CFR 725.414(a)(4). But to allay any concern, the Department has 
revised Sec.  725.413 to explicitly exclude treatment records from the 
``medical information'' subject to exchange between the parties under 
this regulation. The new language is in paragraph (b)(1) of the final 
regulation.
    (2) Several commenters assert that Sec.  725.413 should exclude 
from ``medical information'' all draft medical reports. These same 
commenters also urge the Department to exclude all communications 
between a party's attorney and its medical experts. For the reasons 
that follow, the Department disagrees that draft medical reports should 
be excluded from ``medical information'' but has adopted the 
commenters' suggestion to exclude attorney communications with experts

[[Page 24473]]

from Sec.  725.413's disclosure requirements.
    To support their request for these exclusions, the commenters point 
variously to Federal Rule of Civil Procedure 26(b)(4)(B) and (C) and 
the OALJ Rules, 80 FR 28793 (May 19, 2015) (to be codified at 29 CFR 
18.51(d)), which incorporate the concepts embodied in the Federal Rule. 
When an expert is required to submit written reports or other 
disclosures, those rules protect his or her draft reports from 
discovery. Fed. R. Civ. P. 26(b)(4)(B); 80 FR 28793 (to be codified at 
29 CFR 18.51(d)(2)). Similarly, the rules generally protect from 
disclosure communications between the party's attorney and the expert 
witness except when those communications pertain to the expert's 
compensation, facts or data the attorney provided to the expert, or 
assumptions provided by the attorney to the expert that the expert 
relied on in forming his or her opinion. Fed. R. Civ. P. 26(b)(4)(C); 
80 FR 28793 (to be codified at 29 CFR 18.51(d)(3)). These rules are 
designed to allow discovery of the facts and data on which the expert 
bases his or her opinion without unnecessarily interfering with 
effective communication between the attorney and the expert or 
disclosing the attorney's mental impressions and theories about the 
case. See generally Fed. R. Civ. P. 26, Advisory Committee comment to 
2010 amendments.
    As noted above (see Section II, supra), formal rules of procedure 
do not strictly apply in black lung claims adjudications. And a 
program-specific regulation applies over either the Federal Rules or 
the OALJ Rules. 80 FR 28785, to be codified at 29 CFR 18.10 (OALJ rules 
do not apply ``[i]f a specific Department of Labor regulation 
governs[,]'' and the Federal Rules of Civil Procedure apply only in 
situations not provided for in the OALJ rules or other governing 
regulation). See also 80 FR 28773 (discussing 29 CFR 18.10 and stating 
that ``[n]othing in [the OALJ] rules would prevent the Department from 
adopting a procedural rule that applies only in BLBA claim 
adjudications or other program-specific contexts.'').
    In this instance, the Department believes a rule governing draft 
reports designed specifically for the Black Lung program will serve the 
program's purposes better than the general rule. Exempting all draft 
medical reports from Sec.  725.413's disclosure requirements could 
easily eviscerate the rule: The disclosure requirement could be avoided 
simply by labeling any medical report a ``draft.'' Any party could 
solicit additional medical opinions on the miner's condition and simply 
not share them with the opposing party, or perhaps even their remaining 
expert witnesses. If an employer engaged in that conduct, a primary 
purpose of the rule--protecting the health and safety of the miner by 
ensuring access to all information about his or her health--would be 
thwarted. And if a claimant did the same, another primary purpose of 
the rule--accurate claims adjudication--could be in jeopardy.
    On the other hand, the Department does not see a similarly 
compelling need to routinely require disclosure of communications from 
an attorney (or non-attorney representative, see 20 CFR 725.363(b)) to 
a medical expert. When prepared by an attorney, these communications 
are generally protected from disclosure, except in the circumstances 
noted above, and are more likely to include the attorney's impressions 
and legal analysis of the case. And they generally do not have a direct 
bearing on protecting the miner's health. Accordingly, the Department 
believes these communications should not be considered ``medical 
information'' subject to mandatory exchange with the other parties. The 
Department has added new language to paragraph (b)(2) in the final rule 
to exclude attorney (and non-attorney representative) communications 
from the rule's disclosure requirements. The Department notes, however, 
that the exclusion would not protect disclosure of these communications 
when otherwise ordered. See, e.g, Elm Grove Coal, 480 F.3d at 299-303. 
The rule simply does not require their exchange.
    (3) Two commenters ask the Department to revise Sec.  725.413(a) to 
include ``an exhaustive list'' of ``medical information'' that must be 
exchanged. They claim that the proposed rule does not adequately 
describe the scope of covered information. To illustrate, the 
commenters point to several examples, such as data the Social Security 
Administration considers ``health information'' (e.g., a patient's 
method of bill payment) and suggest that ``medical information'' could 
be construed to include such data.
    The Department has not added a complete list of ``medical 
information'' to the final rule. As explained, the rule expressly 
limits disclosure to medical information developed in connection with a 
claim for benefits and, with the exception of an examining physician's 
report, further limits required disclosure to data addressing the 
miner's respiratory or pulmonary condition. These two limitations serve 
to substantially narrow and define the scope of information that must 
be exchanged with opposing parties (e.g., data about a billing method 
would not meet the criteria).
    Moreover, developing an exhaustive list would not be practical 
because it could easily omit relevant medical data. Another black lung 
program regulation (20 CFR 718.107(a)) correctly countenances the 
possibility that medical testing methods other than those explicitly 
addressed in the regulations may be used to evaluate a miner's 
respiratory or pulmonary condition. See id. (allowing for admission of 
``any medically acceptable test or procedure reported by a physician 
and not addressed in this subpart, which tends to demonstrate the 
presence or absence of pneumoconiosis, the sequelae of pneumoconiosis 
or a respiratory or pulmonary impairment''). Adopting a finite list in 
Sec.  725.413 could inadvertently exclude otherwise important data, 
especially as testing methods evolve in the future.
    (4) Two commenters ask the Department to clarify whether the form 
in which the party receives the medical information (i.e., written, 
electronic, or orally) affects the duty under Sec.  725.413 to exchange 
that information. As proposed, Sec.  725.413(a)(1) and (2) require the 
parties to exchange physicians' ``written or testimonial assessment of 
the miner.'' The remainder of the rule is silent regarding the form of 
the communication. The Department agrees that the rule should be 
clarified on this point and has revised paragraph (a) in the final 
rule. With this change, the Department intends to make all written 
medical information, whether received in electronic (e.g., email, 
facsimile, Web portal or other electronic media) or hard-copy format, 
subject to Sec.  725.413's requirements. This would also include 
testimonial medical information resulting from depositions (e.g., 
transcripts of depositions). But the rule is not intended to cover oral 
communications. The Department has no mechanism to monitor oral 
communications, and compliance with such a rule would be impossible to 
enforce.
    (g) Two commenters express concern that the proposed rule does not 
adequately address the interplay between Sec.  725.413's disclosure 
requirements and Sec.  725.414's evidence-limiting provisions (which 
restrict the number of objective tests and medical reports parties may 
offer into evidence), and may lead to confusion as to whether the new 
disclosure requirements expand the amount of medical evidence a party 
may offer beyond that currently allowed under Sec.  725.414. The 
Department agrees

[[Page 24474]]

with this comment and has added a new paragraph (d) to Sec.  725.413 to 
clarify that disclosed medical information is not considered evidence 
in the claim. Section 725.413's disclosure requirements essentially 
replace traditional discovery tools. Like information gained through 
traditional discovery, medical information exchanged under Sec.  
725.413 does not automatically become a part of the record on which the 
claim's adjudication is based. Instead, only those pieces of medical 
information a party chooses to submit to the adjudicator as evidence 
are subject to Sec.  725.414's evidence-limiting rules.
    (h) On a related note, one commenter states that because district 
directors serve a dual role as a party (entitled to receive disclosed 
medical information under this rule) and an adjudicator, they could be 
confused about which pieces of exchanged medical information should be 
considered as evidence in the claim. This commenter suggests that the 
rule be revised to require private parties to disclose evidence to the 
Director only after a hearing has been requested. The Department 
disagrees with the suggested approach. District directors are skilled 
adjudicators who routinely sort through admissible and non-admissible 
pieces of medical information in issuing proposed decisions and orders. 
For example, when parties submit more evidence than allowed under the 
Sec.  725.414 evidence-limiting rules (a not infrequent occurrence), 
district directors must eliminate from consideration the evidence 
exceeding the limits when adjudicating the claim's merits. In addition, 
removing the district director from early disclosures would hamper 
their ability to administer the rule. The Department will ensure that 
district directors and their staffs receive training on the appropriate 
disposition and use of material disclosed under the rule.
    (i) Several commenters ask that attorneys (and presumably non-
attorney representatives as well) be exempt from liability for a 
client's failure to disclose medical information received by a party 
prior to the attorney's hiring. The Department concurs with this 
comment but does not believe a change in the proposed rule is 
necessary. Section 725.413(b) links the duty to exchange medical 
information to its ``receipt.'' An attorney or representative new to 
the case cannot be held responsible for the party's (or the party's 
prior representative's) failure to timely exchange the information 
because the new representative was not in ``receipt'' of the medical 
evidence prior to their entry into the case. But once the new 
representative actually receives any medical information generated 
before they entered the case--for instance, from a claimant who gives 
his or her new attorney all of the paperwork they have related to the 
claim--the representative then has a duty to ensure that the medical 
information is exchanged with the other parties within thirty days in 
accordance with Sec.  725.413(b).
    (j) Several commenters contend that the rule denies due process to 
sanctioned parties because the regulation authorizes no form of review 
for a wrongful sanctions ruling. These commenters believe that a 
sanctions ruling cannot be reviewed along with the merits of a claim 
because the ruling cannot be reversed. While the Department believes 
that normal claim procedures are sufficient to protect the rights of 
sanctioned individuals, it has clarified the review procedure by adding 
a new paragraph (e)(4) to the final rule. Under this provision, a 
sanction imposed by a district director is subject to de novo review by 
an administrative law judge. The Department has adopted this approach 
because several of the listed sanctions--such as drawing an adverse 
inference against the non-disclosing party or limiting a non-disclosing 
party's claims, defenses, or right to introduce evidence--are closely 
tied to the adjudication of a claim's merits. By statute, the 
administrative law judge has the ``authority to hear and determine all 
questions in respect of [a] claim.'' 33 U.S.C. 919(a), as incorporated 
by 30 U.S.C. 932(a). These questions would include whether the party 
had ``good cause'' for not making the required disclosure and the 
appropriateness of the sanction chosen. Any administrative law judge's 
order resulting in a final disposition of the claim would be subject to 
immediate appeal to the Benefits Review Board, followed by appeal to an 
appropriate court of appeals. 33 U.S.C. 921(a), (c), as incorporated by 
30 U.S.C. 932(a). And in the absence of a final claim disposition, a 
sanctioned party could choose to immediately appeal an order imposing 
sanctions to the Board, whose precedent allows it to accept such 
interlocutory appeals merely to direct the course of the adjudicatory 
process. See Niazy v. Capital Hilton Hotel, 19 BRBS 266, 269 (1987).
    (k) No other significant comments were received concerning this 
section, and the Department has promulgated the remainder of the 
regulation as proposed.
20 CFR 725.414 Development of Evidence
    (a)(1) The Department proposed revising Sec.  725.414, which 
imposes limitations on the quantity of medical evidence each party may 
submit in a black lung claim. 20 CFR 725.414. Sections 725.414(a)(2) 
and (a)(3) allow each party to submit ``no more than two medical 
reports'' in support of its affirmative case. 20 CFR 725.414(a)(2)-(3). 
The current rule 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).
    This definition of ``medical report'' at times created confusion 
over whether supplemental reports offered by a physician whose initial 
opinion had already been entered into evidence counted against the 
parties' two-report limit. 80 FR 23747. Parties obtain supplemental 
reports when they ask a physician to update his or her initial report 
by reviewing additional material, such as medical testing results or 
other physicians' opinions. To eliminate this confusion, the Department 
proposed revising the definition of a ``medical report'' to codify the 
Director's longstanding position that a physician's supplemental report 
is ``merely a continuation of the physician's original medical report 
for purposes of the evidence-limiting rules and do[es] not count 
against the party as a second medical report.'' 80 FR 23747. The 
Department noted that the proposed definition was consistent with the 
regulatory provision allowing physicians to review (either in a written 
report or oral testimony) the other admissible evidence, and a cost-
effective means of providing medical-opinion evidence given the 
practical realities of black lung claims litigation. 80 FR 23747-48.
    (2) Three commenters support the proposed rule as written. Four 
other commenters state general support for the rule, but question how a 
physician's supplemental medical report would be treated in a 
modification proceeding. See generally 20 CFR 725.310. Specifically, 
these commenters express concern over allowing physicians who submitted 
reports in the initial proceeding to submit supplemental reports on 
modification without those reports being counted against the party's 
evidentiary limits. The commenters believe this practice could lead to 
the development of limitless evidence, thwarting the purpose of the 
evidence-limiting rules.

[[Page 24475]]

    (3) The Department does not believe this comment warrants a change 
in the proposed rule. In a modification proceeding, the regulations 
allow each party to submit one additional medical report in support of 
its affirmative case. 20 CFR 725.310(b). This provision supplements the 
limitations contained in Sec.  725.414(a); thus, during modification, a 
party may submit up to the two medical reports allowed under Sec.  
725.414(a), if they were not submitted during the original claim 
proceedings, plus one additional medical report, for a total of three. 
Rose v. Buffalo Mining Co., 23 Black Lung Rep. 1-221, 1-226-28 (Ben. 
Rev. Bd. 2007).
    Considering a physician's supplemental report as an extension of 
his or her original report is consistent with the Department's 
longstanding position that modification proceedings are a continuation 
of the initial claim. See Betty B Coal Co. v. Dir., OWCP, 194 F.3d 491, 
498 (4th Cir. 1999). Moreover, this conclusion logically flows from a 
party's right to submit evidence not submitted during the initial claim 
proceedings to the extent allowed under Sec.  725.414(a). Rose, 23 BLR 
at 1-227-28. Because a supplemental report could have been submitted 
during the initial proceedings without counting against the party, it 
is reasonable to allow the same accommodation during modification.
    Finally, the regulations provide that a physician who submits a 
report during the initial proceedings could testify at hearing or by 
deposition during modification proceedings, without it counting against 
the party for purposes of the evidence-limiting rules. See 20 CFR 
725.414(c) (``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.''). A testifying physician may address any admissible 
medical evidence submitted in the claim. See 20 CFR 725.457(d); 
725.458. Thus, it makes little sense not to allow supplemental reports 
if a party could achieve the same result by having its physician 
testify during modification proceedings. See 80 FR 23748. Allowing 
submission of a written report is also consistent with the nature of 
black lung proceedings, where such reports are freely admissible.
    The commenters' claim that this interpretation would result in 
limitless evidentiary development is overstated. Allowing supplemental 
reports from physicians whose opinions were admitted in the initial 
claim proceeding does not increase the number of physicians who may 
evaluate the miner's condition. As explained, that total remains at a 
maximum of three for each party in a modification proceeding. And 
development of supplemental reports in an undisciplined or unreasonable 
way is naturally constrained by other regulations. For example, 
physicians may review only admissible evidence, 20 CFR 725.414(a)(1), 
and the amount of admissible evidence overall is limited. See 20 CFR 
725.414(a)(2)-(3). The limited number of test results, such as chest X-
ray reports and pulmonary function tests, each party may submit 
restricts the number of supplemental reports necessary to review and 
comment on those tests.
    (b)(1) The Department proposed a separate revision to Sec.  
725.414(a)(3)(iii). Currently, this provision authorizes the Director 
to exercise the rights of a responsible operator for the purposes of 
the evidence limitations only if: (1) The district director has not 
identified a potentially liable operator; or (2) all potentially liable 
operators have been dismissed. The Department proposed adding a third 
provision that would allow the Director to submit medical evidence, up 
to the limits allowed a responsible operator under the evidence-
limiting rules, when the identified responsible operator stops 
defending a claim during the course of litigation because of adverse 
financial developments, such as bankruptcy or insolvency. 80 FR 23753.
    The Department proposed this change because the current rule does 
not adequately protect the Trust Fund against unmeritorious claims in 
these circumstances. 80 FR 23748. Where an identified responsible 
operator ceases to defend a claim in litigation due to adverse 
financial developments, the current rule limits the Director's 
submissions to only the complete pulmonary evaluation that the 
Department gives to every miner as an opportunity to substantiate his 
or her claim. See generally 30 U.S.C. 923(b); 20 CFR 725.406, 
725.414(a). This is true even though the Trust Fund may ultimately be 
liable for any benefits awarded. The proposed rule would give the 
Director the same rights to defend against a claim as if there were no 
responsible operator in the case. This means that in a miner's claim, 
the Director could submit as part of his affirmative case one medical 
opinion and set of testing in addition to the complete pulmonary 
examination afforded every miner who applies for benefits. See 20 CFR 
725.414(a)(3)(iii).
    (2) Two commenters support the rule as proposed. Several other 
commenters state that the rule needs clarification. The latter 
commenters agree that the Director should be able to defend 
unmeritorious claims in these circumstances, but only if the district 
director initially denied the claim. In cases initially awarded by the 
district director, the commenters express concern that the Director may 
use medical evidence previously developed by the no-longer-defending 
operator. They believe this would be improper for two reasons: (1) The 
Director would be impeaching his own witness (i.e., the physician who 
performed the Department-sponsored medical evaluation and whose opinion 
most likely supported the initial benefits award) with operator-
generated evidence, and challenging the award at a later stage would 
call into question the district director's role as a neutral 
adjudicator; and (2) medical opinions generated by operators virtually 
always express views contrary to the BLBA, the implementing 
regulations, and science. The commenters further allege, without 
examples, that whether the district director initially awards or denies 
the claim, a conflict of interest arises should the Director later 
decide to defend a claim because earlier routine communications between 
the claimant and the district director could be used against the 
claimant. For the reasons that follow, the Department does not believe 
any changes should be made in the proposed rule based on these 
comments.
    First, the Director is not obligated to continue to advocate for an 
award of benefits once that award has been proven by later evidence or 
an intervening adjudication to be incorrect. Hardisty v. Dir., OWCP, 
776 F.2d 129, 130 (7th Cir. 1985) (Director not bound by initial award 
of benefits in later proceedings after liability transferred from the 
responsible operator to the Trust Fund); Pavesi v. Dir., OWCP, 758 F.2d 
956, 960 (3d Cir. 1985) (Director has obligation to protect Trust Fund 
and is not bound by district director's initial award of benefits). See 
also Cornett v. Benham Coal, Inc., 227 F.3d 569, 573 n.2 (6th Cir. 
2000) (in litigation of claim, Director may take a position contrary to 
district director's initial finding that claim should be denied). This 
approach makes sense both because the Director has a fiduciary duty to 
protect the Trust Fund against unmeritorious claims, see, e.g., Dir., 
OWCP v. Hileman, 897 F.2d 1277, 1281 n.2 (4th Cir. 1990), and later 
contrary evidence could prove more probative. For example, a district 
director could award benefits based on X-ray evidence of complicated 
pneumoconiosis (also known as

[[Page 24476]]

progressive massive fibrosis) when a later autopsy report affirmatively 
demonstrates that the miner did not have that form of the disease. The 
reverse could also occur (i.e., the district director denied the claim 
and an autopsy shows the miner suffered from complicated 
pneumoconiosis), compelling the Director to argue for an award of 
benefits. Neither scenario calls into question the district director's 
neutrality in adjudicating the claim based on the evidence before him 
or her.
    Second, the commenters' fear that the Director would rely on 
operator-generated medical opinions that are contrary to the BLBA, the 
regulations or science overlooks the Director's longstanding, 
consistent history arguing for rejection of these problematic medical 
opinions. See, e.g., Harman Mining Co. v. Dir., OWCP, 678 F.3d 305, 
314-16 (4th Cir. 2012) (endorsing the Director's argument that a 
physician's opinion was permissibly considered less persuasive when the 
physician's views conflicted with the Department's rationale for 
amending the regulations); Sea ``B'' Mining Co. v. Dunford, 188 F. 
App'x 191, 199 (4th Cir. 2006) (agreeing with the Director that 
operator's physician's opinion was based on two premises that are 
hostile to the Act and thus appropriately discredited); Hunt v. 
Kentland Elkhorn Coal Corp., 159 F. App'x 659, 661-62 (6th Cir. 2005) 
(the Director argued that operator's physicians' opinions must be 
rejected because both were based on premises inconsistent with the 
Act); Penn Allegheny Coal Co. v. Mercatell, 878 F.2d 106, 109-10 (3d 
Cir. 1989) (agreeing with the Director that the ALJ reasonably 
discredited physician's opinion based on premises ``fundamentally at 
odds with the statutory and regulatory scheme''); Black Diamond Coal 
Mining Co. v. Benefits Review Board, 758 F.2d 1532 (11th Cir. 1985) 
(Director supported ALJ discounting testimony of a doctor as 
inconsistent with the Act when that physician stated that he would not 
diagnose pneumoconiosis in the absence of positive x-rays); Kaiser 
Steel Corp. v. Dir., OWCP, 748 F.2d 1426 (10th Cir. 1984) (Director 
argued that the ALJ had properly discredited as contrary to the 
findings and purposes of the Act the opinion of a physician who stated 
coal workers' pneumoconiosis was never impairing).
    The Director does not intend to alter this policy. In each case--
whether the claim was awarded or denied by the district director--the 
Director will evaluate any medical opinion evidence developed by the 
defunct operator and reject any evidence inconsistent with the BLBA, 
the regulations and supporting preambles. This is the same process the 
Director engages in now when an operator ceases to exist and liability 
for a claim in litigation is transferred to the Trust Fund.
    Third, the allegation that routine information exchanged between 
the district director and the claimant could later be used to defeat 
the claim is unfounded. By statute, the Department wears two hats in 
black lung cases, with district directors conducting initial 
adjudications and the Secretary, represented by the Director, 
participating as a party-in-interest in all later proceedings. See 
generally 33 U.S.C. 919, as incorporated by 30 U.S.C. 932(a) (providing 
for district director determinations) and 30 U.S.C. 932(k) (making the 
Secretary a party in all cases). The district director receives claim 
filings, gathers factual information about the miner's employment 
history and dependents, and, in claims filed by a miner, arranges for a 
complete pulmonary examination. Based on this information and any 
evidence submitted by the parties, the district director proposes an 
initial entitlement decision. Findings made by the district director 
are not binding on an administrative law judge, who conducts an 
independent de novo review of the claim. See 20 CFR 725.455(a) (In 
general, ``any findings or determinations made with respect to a claim 
by a district director shall not be considered by the administrative 
law judge'').
    Given the de novo nature of the administrative law judge's 
adjudication, it is difficult to see how communications between the 
district director and the claimant could adversely impact the claimant. 
More importantly, for more than three decades the Director has defended 
proposed district director denials of benefits in claims for which the 
Trust Fund bears direct liability. See 26 U.S.C. 9501(d)(1)(B) (amounts 
in Trust Fund available to pay benefits when there is no liable 
operator). In these claims, the district director conducted an initial 
adjudication and the Director routinely participated in further 
proceedings, advocating for a denial of benefits unless the evidence 
demonstrated that the claimant was entitled to benefits. To the 
Department's knowledge, the Director has not used communications made 
between the claimant and the district director in a manner adverse to 
the claimant. And the commenters have pointed to no such instances.
    Finally, the Department disagrees with one commenter's suggestion 
that operators be required to certify the reason for their inability to 
pay continuing benefits. Requiring certification from a bankrupt or 
insolvent operator would place too high an administrative burden on the 
Department. In some instances, locating a person who could act on the 
defunct operator's behalf may be impossible. And, even assuming the 
operator continues to exist in some form, an operator lacking financial 
capacity to pay benefits has little incentive to respond to a 
certification request. The rule, and the protection it affords the 
Trust Fund, would be rendered useless if an operator either failed or 
simply refused to supply any required certification.
    (c) No other significant comments were received concerning this 
section, and the Department has promulgated Sec.  725.414 as proposed.
20 CFR 725.601 Enforcement Generally
    (a) Currently, Sec.  725.601(b) refers to ``payments in addition to 
compensation'' and cross references Sec.  725.607. The proposed rule 
replaced this phrase with ``payments of additional compensation.'' 80 
FR 23753. The Department intended this to be a technical change, 
unifying this language with a simultaneously proposed change to Sec.  
725.607. 80 FR 23748.
    (b) One commenter objected, contending that the wording change is 
substantive and would impose unauthorized penalties on operators. The 
Department disagrees with this comment. The change to this rule is 
technical in nature and, as stated in the NPRM, no substantive change 
is intended. Id. For this reason, as well as the reasons set forth in 
the discussion under Sec.  725.607, the Department is promulgating this 
rule as proposed.
20 CFR 725.607 Payments in Addition to Compensation
    (a) Section 725.607 implements section 14(f) of the Longshore Act, 
an incorporated provision. 33 U.S.C. 914(f), as incorporated by 30 
U.S.C. 932(a). Section 14(f) generally provides that claimants are 
entitled to receive from a liable coal mine operator 20 percent of any 
compensation owed under the terms of an award that is not paid within 
ten days of the date payment is due. By regulation, payment is due ``on 
the fifteenth day of the month following the month for which the 
benefits are payable.'' 20 CFR 725.502(b)(1); see also 20 CFR 
725.502(a). The operator is liable for the 20 percent amount even if 
the Trust Fund pays ongoing benefits to the claimant on an interim 
basis. 20 CFR 725.607(b).

[[Page 24477]]

    The Department proposed revising both the title of Sec.  725.607 
and the text of paragraph (c) by replacing the phrase ``payments in 
addition to compensation'' with the phrase ``payments of additional 
compensation.'' 80 FR 23853-54. As explained in the NPRM, 80 FR 23748-
49, section 725.607(b) uses the phrase ``additional compensation,'' and 
conforming the title and paragraph (c) to that language adds clarity to 
the regulation and ``eliminate[s] any possibility that the regulation's 
phrasing could confuse readers.'' 80 FR 23749; see also 20 CFR 
725.530(a) (cross-referencing Sec.  725.607 and describing potential 
operator liabilities as including ``additional compensation''). The 
phrase ``additional compensation'' reflects the Director's view, as 
well as the view of the majority of courts that have considered the 
issue, that payments made under Longshore Act section 14(f) are 
compensation rather than penalties. 80 FR 23748.
    (b) Four commenters contend that the proposed revisions to the 
title and paragraph (c) impose new and unauthorized penalties on 
operators. Although these commenters concede that section 14(f) is 
incorporated into the BLBA, they challenge application of the provision 
to the BLBA program.
    Using the phrase ``additional compensation'' consistently 
throughout the regulations does not impose any new or unauthorized 
penalties on operators. The Department has had a regulation 
interpreting and applying section 14(f)'s 20 percent additional 
compensation provision to unpaid black lung benefits since 1978. See 43 
FR 36814-15 (Aug. 18, 1978). Clarifying the language neither adds a new 
provision nor alters the character of the 20 percent additional 
compensation payment to a penalty. The Department is therefore 
promulgating the rule as proposed.

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.
    In the NPRM, the Department noted that proposed Sec.  725.413, 
which, as discussed above, requires parties to exchange certain medical 
information, could be considered a collection of information within the 
meaning of the PRA. 80 FR 23749. Accordingly, the Department submitted 
an Information Collection Request (ICR) to OMB for approval. See ICR 
Reference Number 201504-1240-002. The NPRM specifically invited 
comments regarding the information collection and notified the public 
of their opportunity to file such comments with both OMB and the 
Department. 80 FR 23749. On July 24, 2015, OMB concluded its review of 
the ICR by asking the Department to submit another ICR at the final 
rule stage and after considering any public comments regarding the 
information collection requirements in the rule.
    The Department received comments on the substance of proposed Sec.  
725.413; these comments are fully addressed in the Section-by-Section 
Explanation above. The Department received no comments about the 
information collection burdens. The Department has submitted an ICR to 
OMB for the information collection in this final rule. See ICR 
Reference Number 201511-1240-003. A copy of this request (including 
supporting documentation) may be obtained free of charge from the 
Reginfo.gov Web site at http://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=201511-1240-003, or 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. OMB is currently reviewing the ICR. The 
Department will publish a notice in the Federal Register when OMB 
concludes its review of the ICR.
    The information collection and its burdens are summarized as 
follows:
    Agency: DOL-OWCP.
    Title of Collection: Disclosure of Medical Information.
    OMB Control Number: 1240-0054.
    Affected Public: Private Sector: Businesses and other for-profits.
    Total Estimated Number of Respondents: 4,074.
    Total Estimated Number of Responses: 4,074.
    Total Estimated Annual Time Burden: 679 hours.
    Total Estimated Annual Other Costs Burden: $6,681.

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 final rule with these 
principles in mind and has determined that the regulated community will 
benefit from these new and revised regulations.
    The Department addressed these issues in the NPRM. 80 FR 23749-50. 
With regard to Sec.  725.310(e), which requires operators to pay 
effective awards of benefits while seeking to modify them, the 
Department stated that the proposed rule was ``cost neutral'' because 
it merely enforced operators' existing legal obligations under the Act. 
80 FR 23749. The Department also noted that even if Sec.  725.310(e) 
were construed as imposing a new obligation, any additional costs would 
not be burdensome because operators must reimburse the Trust Fund (with 
interest) when unsuccessful on modification, operators are not often 
successful on modification, and if successful, operators may seek 
reimbursement from the claimant for at least some of the benefits paid. 
80 FR 23750. Apart from the potential monetary impact, the Department 
determined that Sec.  725.310(e) struck an appropriate balance between 
claimants, who are made whole under the rule, and operators, who may 
seek a stay of payments if they would be irreparably harmed by making 
them. 80 FR 23750.
    The Department similarly concluded that the benefits of Sec.  
725.413, which requires the parties to exchange all medical information 
they develop in connection with a claim, far outweighed any minimal 
administrative burden the rule might place on parties. 80 FR 23750. 
These benefits include protecting miners' health and reaching more 
accurate claims determinations. The Department also noted that the rule 
may not have broad impact because parties often already exchanged all 
of the

[[Page 24478]]

medical information in their possession. Id.
    The Department has considered the final rule with these principles 
in mind and has determined that the regulated community will benefit 
from these new and revised regulations. One comment, in which four 
entities joined, generally criticized the Department for not 
demonstrating why these rule revisions were necessary. The comment 
states that the Department provided no empirical data to support them 
and instead cited only unrepresentative anecdotes documenting mostly 
non-existent problems that do not accurately characterize how black 
lung claims are handled. The comment also alludes generally to 
significant expenses imposed on coal mine operators and their insurers 
by the Department but provides no specific information regarding how 
these rules in particular impose increased costs. In addition to these 
general allegations, this comment states that the Department did not 
conduct an empirical review of the impact of Sec.  725.310 and did not 
adequately consider the actual impact Sec.  725.413 would have on 
miners' health.
    The Department does not believe this comment compels a different 
conclusion regarding the benefits of this rulemaking. The Department 
has administered the black lung program for more than three decades and 
been a party in hundreds of thousands of claims. As a result, the 
Department is intimately familiar with how black lung claims are 
litigated by all parties. To further illustrate that Sec. Sec.  
725.310(e) and 725.413 respond to non-illusory problems, the Department 
has added additional representative case examples in the Section-by-
Section Explanation above (see Section III, supra). While these 
modification and discovery issues do not arise in every case, they 
arise frequently enough--and can have sufficiently important 
consequences when they do arise--that resolution by regulatory action 
is appropriate.
    On the more specific comments, Sec.  725.310(e), as discussed above 
(see Section III, supra), enforces an existing legal obligation imposed 
on operators by the statute and implementing regulations. Absent a stay 
of payments ordered by the Benefits Review Board or a court, operators 
are obligated to pay effective benefits awards, regardless of any other 
proceedings in the claim. The statute and regulations already mandate 
that any associated economic burden be borne by operators rather than 
the Trust Fund. The only new burden the rule places on operators is to 
demonstrate that they have complied with the relevant orders. For 
operators that are in compliance, this showing will not be difficult. 
This minimal burden does not outweigh the Department's duty to ensure 
that claimants receive all benefits when due and to protect the Trust 
Fund's assets.
    Similarly, the benefits associated with Sec.  725.413 far outweigh 
any additional minimal burden the regulation will impose on the 
parties. For the reasons explained above (see Section III, supra), the 
Department cannot quantify the actual impact of non-disclosure of 
medical information on miners' health with any certainty. But the rule 
is fully consistent with the Mine Safety and Health Act's prime 
directive: To protect the health and safety of the miner. Section 
725.413 also affords unrepresented claimants an even playing field when 
litigating their claims and increases the possibility of more accurate 
entitlement determinations. Balanced against these important interests 
is the minimal administrative burden of exchanging all medical 
information a party develops about the miner with the other parties, a 
practice several objecting commenters state the parties have routinely 
followed in all but a few instances. Thus, to the extent Sec.  725.413 
mandates such practice, the impact on the parties should be very small.
    Finally, one comment stated that several parts of the proposed 
rules violated the various directions in Executive Orders 12866 and 
13563 that rules be clear and written in plain language. The Department 
has responded to these comments in discussing the substance of each 
rule in the Section-by-Section Explanation above.
    This rule is a significant regulatory action under section 3(f)(4) 
of Executive Order 12866 and has been reviewed by the Office of 
Information and Regulatory Affairs in the Office of Management and 
Budget.

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 evaluate the potential impacts of 
their proposed and final rules on small businesses, small 
organizations, and small governmental jurisdictions and to prepare a 
``regulatory flexibility analysis'' describing those impacts. But if 
the rule is not expected to have ``a significant economic impact on a 
substantial number of small entities,'' the RFA allows the agency to so 
certify in lieu of preparing the analysis. 5 U.S.C. 605(b).
    In the NPRM, the Department determined that a complete regulatory 
flexibility analysis was not necessary, set forth the factual basis for 
this conclusion, and certified that the revised rule would not have a 
significant economic impact on a substantial number of small entities. 
80 FR 23750. The Department provided a copy of that certification to 
the Chief Counsel for Advocacy of the Small Business Administration, 
see 5 U.S.C. 605(b), and invited public comment on the certification.
    The Chief Counsel for Advocacy has not filed comments on the 
certification. Moreover, no public comments address any adverse 
economic impacts this rule will have on small coal mine operators. 
Because the comments do not provide a basis for departing from its 
prior conclusion, the Department again certifies that this rule will 
not have a significant economic impact on a substantial number of small 
entities. Thus, no regulatory flexibility analysis is required.

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 rule in accordance with Executive 
Order 13132 regarding federalism, and has determined that it does not 
have ``federalism implications.'' Executive Order 13132, 64 FR 43255, 
Aug. 4, 1999. The 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.'' Id.

IX. Executive Order 12988 (Civil Justice Reform)

    This rule was drafted and reviewed in accordance with Executive 
Order 12988,

[[Page 24479]]

Civil Justice Reform, and it will not unduly burden the Federal court 
system. The final rule was: (1) Carefully reviewed to eliminate 
drafting errors and ambiguities; (2) written to minimize litigation; 
and (3) provides clear legal standards for affected conduct. The rule 
also specifies when its provisions apply.

X. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a report, which includes a copy of the rule, to 
each House of the Congress and to the Comptroller General of the United 
States. OWCP will report this rule's promulgation to the U.S. Senate, 
the U.S. House of Representatives, and the Comptroller General of the 
United States simultaneously with publication of the rule in the 
Federal Register. The report will state that the rule is not a ``major 
rule'' as defined by 5 U.S.C. 804(2).

List of Subjects in 20 CFR Part 725

    Total disability due to pneumoconiosis, Coal miners' entitlement to 
benefits, Survivors' entitlement to benefits.

    For the reasons set forth in the preamble, the Department of Labor 
amends 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) In this paragraph, an order is ``effective'' as described in 
Sec.  725.502(a) and ``final'' as described in Sec. Sec.  725.419(d), 
725.479(a) or 802.406.
    (2) Any modification request by an operator must be denied unless 
the operator proves that at the time of the request, the operator has:
    (i) Paid to the claimant all monetary benefits, including 
retroactive benefits and interest under Sec.  725.502(b)(2), due under 
any effective order;
    (ii) Paid to the claimant all additional compensation (see Sec.  
725.607) due under an effective order;
    (iii) Paid all medical benefits (see Sec.  725.701 et seq.) due 
under any effective award, but only if the order awards payment of 
specific medical expenses;
    (iv) Paid all final orders awarding attorney's fees and expenses 
under Sec.  725.367 and witness fees under Sec.  725.459, but only if 
the underlying benefits order is final (see Sec.  725.367(b)); and
    (v) Reimbursed the Black Lung Disability Trust Fund, with interest, 
for all benefits paid under the orders described in paragraphs 
(e)(2)(i) or (iii) of this section and the costs for the medical 
examination under Sec.  725.406.
    (3) The requirements of paragraph (e)(2) 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.
    (4) Except as provided by paragraph (e)(5) of this section, the 
operator must submit all documentary evidence pertaining to its 
compliance with the requirements of paragraph (e)(2) 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)(2) at the time of the modification request will be 
admitted into the hearing record or otherwise considered at any later 
stage of the proceeding.
    (5) The requirements imposed by paragraph (e)(2) of this section 
are continuing in nature. If at any time

[[Page 24480]]

during the modification proceedings the operator fails to meet the 
payment obligations described, 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)(2). 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.
    (6) 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)(2) of this 
section with each future modification petition.
    (7) The provisions of this paragraph apply to all modification 
requests filed on or after May 26, 2016.

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 
written medical data, including data in electronic format, 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) For purposes of this section, medical information does not 
include--
    (1) Any record of a miner's hospitalization or other medical 
treatment; or
    (2) Communications from a party's representative to a medical 
expert.
    (c) 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)).
    (d) Medical information disclosed under this section must not be 
considered in adjudicating any claim unless a party designates the 
information as evidence in the claim.
    (e) 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.
    (3) Sanctions must not include--
    (i) Fines or
    (ii) Imprisonment.
    (4) Sanctions imposed by a district director are subject to review 
by an administrative law judge in accordance with the provisions of 
this part.
    (f) This rule applies to--
    (1) All claims filed after May 26, 2016;
    (2) Pending claims not yet adjudicated by an administrative law 
judge, except that medical information received prior to May 26, 2016 
and not previously disclosed must be provided to the other parties 
within 60 days of May 26, 2016; 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)(1) through (5), (c), and (d) 
to read as follows:


Sec.  725.414  Development of evidence.

    (a) * * *
    (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 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

[[Page 24481]]

biopsy submitted by the designated responsible operator or the fund, as 
appropriate, under paragraph (a)(3)(i) or (a)(3)(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, 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 (a)(3)(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 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 of this part, 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 of this part).
    (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, 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 of 
this part, 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 of this part.
    (4) Notwithstanding the limitations in paragraphs (a)(2) and (a)(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 of this part. 
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

[[Page 24482]]

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 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 19th day of April, 2016.
Leonard J. Howie, III,
Director, Office of Workers' Compensation Programs.
[FR Doc. 2016-09525 Filed 4-25-16; 8:45 am]
 BILLING CODE 4510-CR-P



                                                  24464               Federal Register / Vol. 81, No. 80 / Tuesday, April 26, 2016 / Rules and Regulations

                                                    4. Will not have a significant                          (1) Change P/N 1705673A to P/N                      (IBR) of the service information listed in this
                                                  economic impact, positive or negative,                  1705673B.                                             paragraph under 5 U.S.C. 552(a) and 1 CFR
                                                  on a substantial number of small entities                 (2) Change P/N 1705673A to a part number            part 51.
                                                                                                          that is approved as a replacement for P/N                (2) You must use this service information
                                                  under the criteria of the Regulatory
                                                                                                          1705673A and approved as part of the type             as applicable to do the actions required by
                                                  Flexibility Act.                                        design by the Manager, International Branch,          this AD, unless this AD specifies otherwise.
                                                  List of Subjects in 14 CFR Part 39                      ANM–116, Transport Airplane Directorate,                 (i) Dassault Service Bulletin 7X–289, dated
                                                                                                          FAA; or the European Aviation Safety                  January 21, 2015.
                                                    Air transportation, Aircraft, Aviation                Agency (EASA); or Dassault Aviation’s EASA               (ii) Reserved.
                                                  safety, Incorporation by reference,                     Design Organization Approval (DOA); after                (3) For service information identified in
                                                  Safety.                                                 the issue date of Dassault Service Bulletin           this AD, contact Dassault Falcon Jet, P.O. Box
                                                                                                          7X–289, dated January 21, 2015.                       2000, South Hackensack, NJ 07606;
                                                  Adoption of the Amendment                                                                                     telephone: 201–440–6700; Internet: http://
                                                                                                          (h) Exception to Paragraph (g) of This AD             www.dassaultfalcon.com.
                                                    Accordingly, under the authority
                                                  delegated to me by the Administrator,                     An airplane on which Dassault Aviation                 (4) You may view this service information
                                                  the FAA amends 14 CFR part 39 as                        Modification M1428 has been embodied in               at the FAA, Transport Airplane Directorate,
                                                                                                          production is not affected by the                     1601 Lind Avenue SW., Renton, WA. For
                                                  follows:                                                requirements of paragraph (g) of this AD,             information on the availability of this
                                                                                                          provided no RAT P/N 1705673A has been                 material at the FAA, call 425–227–1221.
                                                  PART 39—AIRWORTHINESS                                   installed on that airplane since first flight.           (5) You may view this service information
                                                  DIRECTIVES
                                                                                                          (i) Parts Installation Prohibition                    that is incorporated by reference at the
                                                  ■ 1. The authority citation for part 39                                                                       National Archives and Records
                                                                                                             As of the effective date of this AD, no            Administration (NARA). For information on
                                                  continues to read as follows:                           person may install a RAT having P/N                   the availability of this material at NARA, call
                                                      Authority: 49 U.S.C. 106(g), 40113, 44701.          1705673A, on any airplane.                            202–741–6030, or go to: http://www.archives.
                                                                                                          (j) Other FAA AD Provisions                           gov/federal-register/cfr/ibr-locations.html.
                                                  § 39.13   [Amended]
                                                                                                             The following provisions also apply to this          Issued in Renton, Washington, on March
                                                  ■ 2. The FAA amends § 39.13 by adding
                                                                                                          AD:                                                   31, 2016.
                                                  the following new airworthiness                            (1) Alternative Methods of Compliance              Victor Wicklund,
                                                  directive (AD):                                         (AMOCs): The Manager, International                   Acting Manager, Transport Airplane
                                                  2016–08–01 Dassault Aviation:                           Branch, ANM–116, FAA, has the authority to            Directorate, Aircraft Certification Service.
                                                      Amendment 39–18477. Docket No.                      approve AMOCs for this AD, if requested
                                                                                                          using the procedures found in 14 CFR 39.19.           [FR Doc. 2016–08952 Filed 4–25–16; 8:45 am]
                                                      FAA–2015–7532; Directorate Identifier
                                                      2015–NM–069–AD.                                     In accordance with 14 CFR 39.19, send your            BILLING CODE 4910–13–P
                                                                                                          request to your principal inspector or local
                                                  (a) Effective Date                                      Flight Standards District Office, as
                                                    This AD is effective May 31, 2016.                    appropriate. If sending information directly          DEPARTMENT OF LABOR
                                                                                                          to the International Branch, send it to ATTN:
                                                  (b) Affected ADs
                                                                                                          Tom Rodriquez, Aerospace Engineer,                    Office of Workers’ Compensation
                                                    None.                                                 International Branch, ANM–116, Transport
                                                                                                          Airplane Directorate, FAA, 1601 Lind
                                                                                                                                                                Programs
                                                  (c) Applicability
                                                                                                          Avenue SW., Renton, WA 98057–3356;
                                                     This AD applies to Dassault Aviation                 telephone: 425–227–1137; fax: 425–227–                20 CFR Part 725
                                                  Model FALCON 7X airplanes, certificated in              1149. Information may be emailed to: 9-
                                                  any category, all serial numbers.                                                                             RIN 1240–AA10
                                                                                                          ANM-116-AMOC-REQUESTS@faa.gov.
                                                  (d) Subject                                             Before using any approved AMOC, notify                Black Lung Benefits Act: Disclosure of
                                                                                                          your appropriate principal inspector, or
                                                    Air Transport Association (ATA) of
                                                                                                          lacking a principal inspector, the manager of
                                                                                                                                                                Medical Information and Payment of
                                                  America Code 24, Electrical power.                                                                            Benefits
                                                                                                          the local flight standards district office/
                                                  (e) Reason                                              certificate holding district office. The AMOC         AGENCY:  Office of Workers’
                                                                                                          approval letter must specifically reference
                                                     This AD was prompted by reports of                                                                         Compensation Programs, Labor.
                                                  multiple cases of ram air turbine (RAT) blade           this AD.
                                                                                                             (2) Contacting the Manufacturer: For any           ACTION: Final rule.
                                                  damage. We are issuing this AD to prevent
                                                  blade damage to the RAT, which could                    requirement in this AD to obtain corrective
                                                                                                          actions from a manufacturer, the action must          SUMMARY:    This final rule revises the
                                                  prevent RAT deployment in flight during an                                                                    regulations implementing the Black
                                                  emergency, possibly resulting in reduced                be accomplished using a method approved
                                                  control of the airplane.                                by the Manager, International Branch, ANM–            Lung Benefits Act to address certain
                                                                                                          116, Transport Airplane Directorate, FAA; or          procedural issues that have arisen in
                                                  (f) Compliance                                          the European Aviation Safety Agency                   claim adjudications and other technical
                                                     Comply with this AD within the                       (EASA); or Dassault Aviation’s EASA Design            issues. To protect miners’ health, assist
                                                  compliance times specified, unless already              Organization Approval (DOA). If approved by           parties without adequate legal
                                                  done.                                                   the DOA, the approval must include the
                                                                                                                                                                representation, and enhance the
                                                                                                          DOA-authorized signature.
                                                  (g) Placard Replacement                                                                                       accuracy of benefits entitlement
                                                                                                          (k) Related Information                               decisions, the final rule includes a new
                                                     Except as provided by paragraph (h) of this
                                                  AD: Within 28 months or during the next                   Refer to Mandatory Continuing                       provision that requires all parties to
                                                  accomplishment of the RAT functional test,              Airworthiness Information (MCAI) EASA AD              exchange with each other any medical
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                                                  whichever occurs first after the effective date         2015–0076, dated May 6, 2015, for related             information developed in connection
                                                  of this AD, deploy the RAT, replace the RAT             information. This MCAI may be found in the            with a claim for benefits and allows for
                                                  placard with a new RAT placard, and re-                 AD docket on the Internet at http://                  the imposition of sanctions for failure to
                                                  identify the RAT part number (P/N)                      www.regulations.gov by searching for and
                                                                                                                                                                comply with the rule. The final rule also
                                                  1705673A to a part number identified in                 locating Docket No. FAA–2015–7532.
                                                  paragraph (g)(1) or (g)(2) of this AD, in                                                                     clarifies a liable coal mine operator’s
                                                  accordance with the Accomplishment                      (l) Material Incorporated by Reference                obligation to pay effective benefits
                                                  Instructions of Dassault Service Bulletin 7X–              (1) The Director of the Federal Register           awards by requiring payment before
                                                  289, dated January 21, 2015.                            approved the incorporation by reference               allowing the operator to challenge the


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                                                                      Federal Register / Vol. 81, No. 80 / Tuesday, April 26, 2016 / Rules and Regulations                                        24465

                                                  award through the Act’s modification                    1998) (describing 30 U.S.C. 936(a) as                 incorporated by 30 U.S.C. 932(a). This
                                                  procedures. In addition, the final rule                 conferring ‘‘a broad grant of                         section relieves the Department from
                                                  resolves an ambiguity regarding how                     congressional authority’’ to promulgate               traditional rules of procedure or
                                                  physicians’ follow-up reports should be                 regulations); Labelle Processing Co. v.               evidence in claims determinations and
                                                  considered under the evidence-limiting                  Swarrow, 72 F.3d 308, 312 (3d Cir.                    plainly elevates truth seeking over
                                                  rules, and allows the Department to                     1995) (‘‘Congress granted the Secretary               litigation gamesmanship: ‘‘the
                                                  fully participate in claims adjudications               of Labor broad authority to promulgate                [adjudication officer] shall not be bound
                                                  after the liable coal mine operator stops               regulations under the BLBA.’’); Harman                by common law or statutory rules of
                                                  participating because of adverse                        Mining Co. v. Dir., OWCP, 826 F.2d                    evidence or by technical or formal rules
                                                  financial developments, such as                         1388, 1390 (4th Cir. 1987) (same); see                of procedure, except as provided by this
                                                  bankruptcy or insolvency.                               also Dir., OWCP v. Mangifest, 826 F.2d                chapter; but may make such
                                                  DATES: This rule is effective May 26,                   1318, 1330 n.21 (3d Cir. 1987)                        investigation or inquiry or conduct such
                                                  2016.                                                   (regulation was an appropriate exercise               hearing in such manner as to best
                                                                                                          of the Secretary’s general authority                  ascertain the rights of the parties.’’Id.
                                                  FOR FURTHER INFORMATION CONTACT:
                                                                                                          where not precluded by specific
                                                  Michael Chance, Director, Division of                   statutory section). Congress further                  III. Discussion of Significant Comments
                                                  Coal Mine Workers’ Compensation,                        emphasized the Secretary’s important                    The Department received 18
                                                  Office of Workers’ Compensation                         role in the BLBA’s administration by                  comments, some joined by multiple
                                                  Programs, U.S. Department of Labor,                     including many other grants of                        individuals or entities, in response to
                                                  200 Constitution Avenue NW., Suite N–                   regulatory authority throughout the                   the NPRM. Commenters included
                                                  3520, Washington, DC 20210.                             statute. See 30 U.S.C. 902(f)(1)(D),                  miners, benefits claimants, their
                                                  Telephone: 1–800–347–2502. This is a                    921(b), 923(b), 932(a), 932(h), 936(c),               representatives, a labor union, a coal
                                                  toll-free number. TTY/TDD callers may                   and 942. Two of these supplementary                   mine company, an insurance company,
                                                  dial toll-free 1–800–877–8339 for                       grants of regulatory authority, sections              industry and insurance trade
                                                  further information.                                    923(b) and 932(a), are particularly                   associations, and one member of
                                                  SUPPLEMENTARY INFORMATION:                              important to this rulemaking.                         Congress. Five of the comments
                                                  I. Background of This Rulemaking                           Section 923(b), which incorporates                 expressed general concerns about the
                                                                                                          section 205(a) of the Social Security Act,            black lung program and the difficulties
                                                     The Black Lung Benefits Act (BLBA),                  30 U.S.C. 923(b) (incorporating 42                    miners face in obtaining benefits. The
                                                  30 U.S.C. 901–944, provides for the                     U.S.C. 405(a)), gives the Department                  remaining comments addressed the
                                                  payment of benefits to coal miners and                  wide latitude in regulating evidentiary               proposed rules more specifically and are
                                                  certain of their dependent survivors on                 matters in claims adjudications.                      discussed below in the Section-by-
                                                  account of total disability or death due                Specifically, section 205(a) grants the               Section Explanation. The Department
                                                  to coal workers’ pneumoconiosis. 30                     Secretary authority to ‘‘adopt reasonable             appreciates these comments and has
                                                  U.S.C. 901(a); Usery v. Turner Elkhorn                  and proper rules and regulations to                   made several revisions to the final rule
                                                  Mining Co., 428 U.S. 1, 8 (1976).                       regulate and provide for the nature and               in response.
                                                  Benefits are paid either by an individual               extent of the proofs and evidence and                   The Department received no
                                                  coal mine operator that employed the                    the method of taking and furnishing the               comments on the proposed revisions
                                                  coal miner (or its insurance carrier), or               same in order to establish the right to               replacing the word ‘‘shall’’ with the
                                                  the Black Lung Disability Trust Fund                    benefits hereunder.’’ Id. As explained in             word ‘‘must’’ or other appropriate plain-
                                                  (Trust Fund). Dir., OWCP v. Bivens, 757                 the NPRM, 80 FR 23746, section 205 has                language phrase throughout the
                                                  F.2d 781, 783 (6th Cir. 1985).                          been interpreted as conferring                        amended regulatory sections. See
                                                     On April 29, 2015, the Department                    ‘‘exceptionally broad’’ power to                      generally 80 FR 23743–44. Accordingly,
                                                  proposed revising the BLBA’s                            regulate. See Heckler v. Campbell, 461                the Department has retained those
                                                  implementing regulations to resolve                     U.S. 458, 466 (1983), quoting Schweiker               revisions in the final rule.
                                                  several procedural issues that had arisen               v. Gray Panthers, 453 U.S. 34, 43 (1981).
                                                  in claims administration and                               Section 932(a), 30 U.S.C. 932(a),                  Section-by-Section Explanation
                                                  adjudication, and make other technical                  grants similarly strong regulatory                    20 CFR 725.310 Modification of
                                                  changes. 80 FR 23743–54 (Apr. 29,                       authority to the Secretary. This section
                                                                                                                                                                Awards and Denials
                                                  2015) (NPRM). Each of these issues and                  incorporates various provisions from the
                                                  the comments received in response to                    Longshore and Harbor Workers’                           (a) Section 725.310 implements
                                                  the proposed rule are fully addressed in                Compensation Act (Longshore Act), 33                  section 22 of the Longshore Act, 33
                                                  the Section-By-Section Explanation                      U.S.C. 901–950, but further authorizes                U.S.C. 922, as incorporated into the
                                                  below.                                                  the Secretary to ‘‘prescribe in the                   BLBA by 30 U.S.C. 932(a). Section 22
                                                                                                          Federal Register such additional                      generally allows for the modification of
                                                  II. Statutory Authority                                 provisions [] as he deems necessary’’                 claim decisions based on a mistake of
                                                     Congress granted the Secretary broad                 and specifies that the incorporated                   fact or a change in conditions up to one
                                                  rulemaking authority to administer the                  Longshore Act sections apply ‘‘except as              year after the last payment of benefits or
                                                  BLBA: ‘‘The Secretary of Labor [is]                     otherwise provided . . . by regulations               denial of a claim.
                                                  authorized to issue such regulations as                 of the Secretary.’’ 30 U.S.C. 932(a); see               The Department proposed adding a
                                                  [he] deems appropriate to carry out the                 Dir., OWCP v. Nat’l Mines Corp., 554                  new paragraph (e) to this regulation to
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                                                  provisions of this subchapter.’’ 30                     F.2d 1267, 1273–74 (4th Cir. 1977)                    ensure that responsible operators (and
                                                  U.S.C. 936(a). See, e.g., Elm Grove Coal                (holding that Congress empowered the                  their insurance carriers) fully discharge
                                                  Co. v. Dir., OWCP, 480 F.3d 278, 293                    Secretary to depart from specific                     their payment obligations while
                                                  (4th Cir. 2007) (‘‘[T]he Secretary has                  requirements of the Longshore Act).                   pursuing modification of a benefits
                                                  been vested with broad authority to                        One of the incorporated Longshore                  award. 80 FR 23744–45, 23751. In the
                                                  implement the mandate of the Black                      Act provisions, section 23(a), also                   absence of a Benefits Review Board or
                                                  Lung Act.’’); Caney Creek Coal Co. v.                   provides important statutory authority                court-ordered stay of payments, the
                                                  Satterfield, 150 F.3d 568, 572 (6th Cir.                for this rulemaking. 33 U.S.C. 923(a), as             proposed rule required that an


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                                                  24466               Federal Register / Vol. 81, No. 80 / Tuesday, April 26, 2016 / Rules and Regulations

                                                  operator’s request to modify an effective               arising out of such operators’ mines to               that the operator has not paid pursuant
                                                  award be denied unless the operator                     the maximum extent feasible.’’ S. Rep.                to the award); Dalton v. Dir., OWCP, 738
                                                  proved that it had complied with all of                 No. 95–209 at 9, reprinted in Committee               F.3d 779 (7th Cir. 2013) (in post-2000
                                                  its payment obligations under that                      on Education and Labor, House of                      claim, Department’s records indicate
                                                  award and any other currently effective                 Representatives, 96th Cong., Black Lung               operator delayed Trust Fund
                                                  award (such as a medical benefits                       Benefits Act and Black Lung Benefits                  reimbursement for approximately ten
                                                  award) in the claim. The Department                     Revenue Act of 1977 at 612 (Comm.                     years while pursuing appeals of initial
                                                  noted that an ‘‘effective’’ award is                    Print) (1979).                                        awards and a later modification
                                                  generally an uncontested award entered                     Yet operators were not always                      petition). Indeed, the Department has
                                                  by a district director or any award                     meeting their payment obligations                     identified more than nine hundred
                                                  entered by an administrative law judge                  under effective benefit awards, relying               claims in which the Trust Fund has
                                                  or higher tribunal. 80 FR 23744; 20 CFR                 instead on the Trust Fund to pay                      paid effective benefits awards in the
                                                  725.502(a). The Department proposed                     benefits while they appealed or sought                operator’s stead since October 1, 2010.
                                                  the rule both to ensure that claimants                  modification. The Department                          And, as explained in the NPRM, the
                                                  are fully compensated and to protect the                attempted to resolve any confusion on                 existing enforcement mechanisms are
                                                  Trust Fund, which must pay effective                    this issue when it promulgated                        difficult to use in these circumstances.
                                                  awards when an operator fails to do so.                 extensive revisions to the black lung                 80 FR 23744–45. Thus, the Trust Fund
                                                  80 FR 23744–45.                                         program regulations in 2000. 65 FR                    is routinely forced to pay interim
                                                     (b) The Department received several                  80009–11 (Dec. 20, 2000). In that                     benefits to entitled claimants and bear
                                                  comments addressing proposed                            rulemaking, the Department revised                    the risk that the benefits award was in
                                                  paragraph (e). Four commenters                          § 725.502 with the specific intent of                 error, contrary to Congress’ intent. At
                                                  expressed support for the proposal.                     clarifying when a benefits award was                  the time of the 2000 rulemaking, the
                                                  Noting that modification proceedings                    ‘‘effective,’’ and thus payable by the                Trust Fund was indebted to the U.S.
                                                  can add years to the claims process and                 liable operator. 62 FR 3366 (Jan. 22,                 Treasury in the amount of $5.487
                                                  citing examples, one commenter praised                  1997) (with revisions to § 725.502,                   billion. As of the end of fiscal year 2012
                                                  this rule as pragmatic because it allows                ‘‘[t]he Department hopes to increase                  and after a restructuring, which
                                                  operators with legitimate defenses to                   operator compliance with effective                    included a one-time non-refundable
                                                  pursue modification while reducing the                  awards.’’); 65 FR 80009 (Dec. 20, 2000)               allocation of $6.497 billion to the Fund,
                                                  incentive for operators to improperly                   (‘‘The most important changes [to                     the Trust Fund’s debt remained over $6
                                                  use modification as a means to delay                    § 725.502] were designed to make clear                billion. See Emergency Economic
                                                  payment of benefits. Another                            to responsible operators their                        Stabilization Act of 2008, Public Law
                                                  commenter praised the proposal as                       obligations under the terms of an                     110–343, section 113 (Oct. 3, 2008);
                                                  clearly consistent with the Act and                     effective award of benefits even though               OWCP Annual Report to Congress for
                                                  agreed with the Department’s position                   the claim might still be in litigation.’’).           FY 2012 at 63.
                                                  that the Trust Fund should not be                       The Department noted that operators,                     Thus, the rule addresses a
                                                  burdened with paying benefits on behalf                 contrary to Congressional intent,                     longstanding problem; it is not, as some
                                                  of operators during the modification                    routinely used the Trust Fund as a                    commenters suggest, simply a reaction
                                                  period. Two additional commenters                       surrogate to ‘‘reduce the risk of losing              to the concerns Judge Hamilton
                                                  expressed general support for the rule.                 interim payments in the event the award               expressed in his Crowe concurring
                                                     Six commenters opposed the rule,                     is reversed.’’ 64 FR 55000 (Oct. 8, 1999).            opinion over this type of operator
                                                  arguing either that the Department                      The Department clearly expressed its                  misconduct. The rule is intended to
                                                  should withdraw the rule completely or                  position that operators, and not the                  curb an unlawful practice. It will
                                                  that it should be revised. Several of                   Trust Fund, are required to pay benefits              prevent operators from indefinitely
                                                  these commenters argue that the                         pursuant to an effective award                        delaying payments to claimants or
                                                  proposed rule should be withdrawn                       notwithstanding the pendency of a                     reimbursement of the Trust Fund for
                                                  because it is unauthorized by law,                      modification petition. 64 FR 55000–01.                payments made on the operator’s behalf.
                                                  unfair, and unnecessary. These                             The Department’s efforts in 2000,                  As a result, the rule will prevent
                                                  commenters also argue that the rule will                however, have not remedied the                        operators from taking advantage of the
                                                  effectively deprive operators of the                    problem. Operators often do not meet                  safeguards built into the Act to protect
                                                  opportunity to challenge medical                        their legal obligation to pay benefits                claimants, mainly the payment of
                                                  expenses and attorneys’ fees.                           while challenging effective awards,                   benefits from the Trust Fund when the
                                                     The Department has fully considered                  whether by appeal to the Benefits                     liable operator fails to pay. The
                                                  the comments received and determined                    Review Board or appropriate court, or                 Department has a fiduciary duty to
                                                  that the rule should not be withdrawn.                  by seeking modification. Cases like                   protect the Trust Fund from such
                                                  The Department has, however, revised                    those cited in the NPRM—including                     misconduct. 26 U.S.C. 9501(a)(2); see
                                                  the final rule to address the                           Crowe ex rel. Crowe v. Zeigler Coal Co.,              also Marfork Coal Co. v. Weis, 251 F.
                                                  commenters’ concerns regarding                          646 F.3d 435, 445 (7th Cir. 2011), and                App’x 229, 233 (4th Cir. 2007) (‘‘The
                                                  medical expenses and attorneys’ fees.                   Hudson v. Pine Ridge Coal Co., LLC, No.               OWCP Director, who acts as trustee for
                                                     (c) As explained in the NPRM, 80 FR                  2:11–00248, 2012 WL 386736, *5 (S.D.                  the Black Lung Benefits Fund, is
                                                  23744–45, Congress established the                      W.Va. Feb. 6, 2012)—continue to arise.                responsible for conserving its assets.’’);
                                                  Trust Fund in 1977 to serve as a                        See, e.g., Bull Creek Coal Corp. v. Dir.,             Boggs v. Falcon Coal Co., 17 Black Lung
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                                                  secondary payor when there is no                        OWCP, 6th Cir. No. 14–3573, operator’s                Rep. 1–62, 1–65 (Ben. Rev. Bd. 1992)
                                                  operator that may be held liable or when                appeal dismissed Nov. 6, 2014 (in post-               (noting that the Director is a trustee of
                                                  the liable operator defaults on its                     2000 claim, operator sought                           the Trust Fund charged with a duty to
                                                  payment obligations. Congress                           modification after appealing effective                protect its assets); Truitt v. N. Am. Coal
                                                  envisioned the Trust Fund as a payor of                 benefits award to the court, but later                Corp., 2 Black Lung Rep. 1–199, 1–202
                                                  last resort, and intended to ‘‘ensure that              moved to dismiss its appeal;                          (Ben. Rev. Bd. 1979) (same).
                                                  individual coal operators rather than the               modification petition remains pending                    (d) Several commenters argue that no
                                                  trust fund bear the liability for claims                and the Department’s records indicate                 language in either the text or legislative


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                                                                      Federal Register / Vol. 81, No. 80 / Tuesday, April 26, 2016 / Rules and Regulations                                         24467

                                                  history of Longshore Act section 22                     1977, which created the Trust Fund and                the system for recovering overpayments
                                                  authorizes this proposed rule. While                    specifies the circumstances under                     justify withdrawing this rule.
                                                  section 22 does not contain explicit                    which it may pay benefits. The Revenue                   The commenters allude to substantive
                                                  language contemplating this rule, other                 Act, codified at 26 U.S.C. 9501(d),                   and procedural reasons that operators
                                                  sections of the Longshore Act require                   authorizes the Trust Fund to pay                      may struggle to recover overpayments.
                                                  employers to pay benefits under an                      benefits if the responsible operator                  Substantively, overpayments may not be
                                                  effective award and therefore require                   either has not commenced payment                      recovered when the claimant is without
                                                  payment of compensation due even                        within 30 days of an initial                          fault in receiving the overpayment and
                                                  while modification proceedings are                      determination of eligibility, or has not              if recovery would defeat the purpose of
                                                  pending. See, e.g., 33 U.S.C. 918, 921(a)               made a payment within 30 days of its                  the Act or be against equity and good
                                                  (requiring payment of benefits pursuant                 due date. 26 U.S.C. 9501(d). By                       conscience. 20 CFR 725.542. This is true
                                                  to an award regardless of whether the                   regulation, the Department has provided               whether the overpayment is owed to an
                                                  award is final unless the order is stayed               that such payments by the Trust Fund                  operator or to the Trust Fund. See 20
                                                  by an appellate tribunal); Williams v.                                                                        CFR 725.547. The initiation of payments
                                                                                                          are mandatory. See 20 CFR 725.420(c);
                                                  Jones, 11 F.3d 247, 259 (1st Cir. 1993)                                                                       prior to final adjudication is a
                                                                                                          725.522. The commenters reason that
                                                  (holding that employers must continue                                                                         characteristic of workers’ compensation
                                                                                                          because that statute authorizes (and the
                                                  to pay pursuant to an effective award                                                                         programs generally. See, e.g., Doucette
                                                                                                          regulations compel) the Trust Fund to                 v. Hallsmith/Sysco Food Servs., Inc., 10
                                                  unless they are able to prove that doing
                                                                                                          pay benefits to an entitled claimant                  A.3d 692, 694 (Me. 2010) (recognizing
                                                  so would result in irreparable injury). It
                                                                                                          when a liable operator fails to pay, the              express provision in Maine workers’
                                                  is common practice for Longshore
                                                  employers to comply with their                          statute necessarily endorses the                      compensation law that requires
                                                  obligations to pay compensation                         operator’s refusal to pay. The statute                payment of benefits pending appeal and
                                                  pursuant to an effective award while                    contains no such endorsement. In fact,                holding that court is not empowered to
                                                  pursuing modification. There simply is                  the statutory and regulatory                          stay such payments); Coley v. Camden
                                                  no secondary payor—like the Trust                       enforcement provisions demonstrate                    Assoc., Inc., 702 A.2d 1180, 1184 (Conn.
                                                  Fund in black lung claims—available to                  that when Congress created the Trust                  1997) (Connecticut’s workers’
                                                  serve as an alternative source of                       Fund, it did not suspend operators’                   compensation law requires employers or
                                                  compensation payments in every case in                  obligations to pay benefits once an                   insurers to pay benefits to claimants
                                                  which an employer does not meet its                     effective or final order is issued. See 33            during the pendency of appeal); Garcia
                                                  legal obligations, so there is no need for              U.S.C. 918(a), incorporated by 30 U.S.C.              v. McCord Gasket Corp., 534 N.W.2d
                                                  the Longshore Act to address this issue                 932(a) and implemented by 20 CFR                      473, 478 (Mich. 1995) (affirming
                                                  explicitly. Thus, the absence of any                    725.605 (establishing procedures for                  dismissal of employer’s appeal for
                                                  explicit language in section 22                         enforcement of effective awards even if               failure to pay benefits pursuant to
                                                  mandating such compliance does not                      those awards are not final); 33 U.S.C.                effective, but not final, order as required
                                                  make the black lung rule inconsistent                   921(d), incorporated by 30 U.S.C. 932(a)              by Michigan’s workers’ compensation
                                                  with Longshore Act practice.                            and implemented by 20 CFR 725.604                     law). Although this practice carries the
                                                     This scenario also demonstrates why                  (allowing for enforcement of final                    risk that some claimants will receive
                                                  Congress incorporated the Longshore                     awards of benefits in federal court);                 compensation to which they were not
                                                  Act provisions into the BLBA with the                   Hudson v. Pine Ridge Coal Co., LLC, No.               entitled, that risk has been deemed an
                                                  qualification that the Department has                   2:11–00248, 2012 WL 386736, at *5                     acceptable part of the workers’
                                                  authority to promulgate rules tailoring                 (S.D. W.Va. Feb. 6, 2012) (enforcing                  compensation compromise. Under the
                                                  the incorporated provisions to the black                BLBA compensation order                               Act and regulations, the risk of an
                                                  lung program’s specific needs. As                       notwithstanding pendency of operator’s                unrecoverable overpayment exists in
                                                  discussed above (see Section II, supra),                modification petition). The comment                   every case where benefits are awarded,
                                                  the Secretary’s broad rulemaking                        provides no support for its assertion that            but the legislative history of the Act
                                                  authority under the BLBA specifically                   Congress, in effect, approves of                      demonstrates Congress intended that
                                                  includes the ‘‘discretion to deviate from               employers ignoring their BLBA payment                 operators, not the Trust Fund, should
                                                  the LHWCA procedures and to prescribe                   obligations. See also 65 FR at 80011                  bear that risk. See, e.g., Old Ben Coal
                                                  ‘such additional provisions, not                        (Dec. 20, 2000) (in revising § 725.502,               Co. v. Luker, 826 F.2d 688, 693 (7th Cir.
                                                  inconsistent with those specifically                    rejecting similar comment and                         1987); Nowlin v. Eastern Assoc. Coal
                                                  excluded by this subsection, as [the                    concluding that Congress did not intend               Corp., 331 F. Supp. 2d 465, 476 (N.D.
                                                  Department] deems necessary.’ ’’                        the Trust Fund ‘‘to absorb all operators’             W.Va. 2004) (‘‘[T]he public is served by
                                                  Bethenergy Mines Inc. v. Dir., OWCP,                    liabilities as a matter of course until the           placing the risk of non-collection of
                                                  854 F.2d 632, 634–35 (3d Cir. 1988)                     conclusion of litigation in every                     overpayments on the coal mine operator
                                                  (quoting 30 U.S.C. 932(a)). The                         approved claim’’).                                    rather than on the Trust Fund’’).
                                                  existence of the Trust Fund creates a                                                                            Procedurally, these commenters argue
                                                  need for a specific rule in the black lung                 (e) Several commenters allege that the             that operators encounter difficulties in
                                                  program. Because the Department is                      proposed rule effectively denies the                  obtaining overpayment orders from the
                                                  authorized by statute to alter the                      modification remedy to operators by                   Department, and then in enforcing them
                                                  procedures for modification, this rule is               eliminating their financial incentive to              against claimants because the BLBA
                                                  well within the Department’s regulatory                 pursue modification. They contend that                does not grant jurisdiction to any court
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                                                  authority, even if section 22 does not                  even if operators are successful on                   for this purpose. Overpayment
                                                  explicitly require operators to                         modification, they will be unable to                  proceedings are governed by
                                                  demonstrate compliance with                             recoup the benefits that were paid                    §§ 725.547(b) and 725.548. 20 CFR
                                                  outstanding effective orders as a                       pursuant to previously effective awards.              725.547(b), 725.548. Section 725.547(b)
                                                  precondition to modification.                           See 20 CFR 725.540(a) (allowing for                   specifies that ‘‘[n]o operator or carrier
                                                     These same commenters also argue                     recoupment of overpaid benefits). The                 may recover, or make an adjustment of,
                                                  that the proposed regulation violates the               Department does not believe that the                  an overpayment without prior
                                                  Black Lung Benefits Revenue Act of                      commenters’ perceived problems with                   application to and approval’’ by the


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                                                  24468               Federal Register / Vol. 81, No. 80 / Tuesday, April 26, 2016 / Rules and Regulations

                                                  Department. Section 725.548(a)                          claimants are not similarly required to               award under the Longshore Act despite
                                                  authorizes district directors to issue                  repay any overpaid benefits before                    employer’s modification request);
                                                  appropriate orders to protect the rights                seeking modification of a denial.                     Williams v. Jones, 11 F.3d 247, 259 (1st
                                                  of the parties, and § 725.548(b) provides                  An overpayment could occur in any                  Cir. 1993) (same); Hudson, 2012 WL
                                                  that disputes will be resolved through                  case where an adjudicator awards                      386736, at *5 (denying motion to
                                                  the same adjudication procedures that                   benefits to the claimant—thereby                      dismiss enforcement petition because of
                                                  govern claims. The Department                           entitling the claimant to interim benefit             pendency of modification request).
                                                  understands its essential role in                       payments pending final adjudication—                  Section 725.310(e) simply requires
                                                  processing operator overpayment                         and a higher-level adjudicator or                     operators to comply with their legal
                                                  requests and is committed to                            appellate body denies the claim. See 20               obligations before accessing the
                                                  cooperating with the parties to ensure                  CFR 725.522(b). Significantly, a                      modification process. Moreover, the
                                                  prompt resolution. To that end, the                     decision reversing an award to a denial               one-year period during which an
                                                  Department will review its procedures                   does not compel a claimant to repay                   operator may seek modification is
                                                  for handling operator overpayment                       previously paid benefits because the                  constantly shifting because it runs from
                                                  requests and will ensure that all                       overpaid claimant has a statutory right               the date of last payment of benefits, and
                                                  personnel are properly trained in their                 to seek waiver of recovery of the                     benefits are paid monthly. Thus, an
                                                  handling as part of this rule’s                         overpayment. See 42 U.S.C. 404(b), as                 operator might be in a position to seek
                                                  implementation.                                         incorporated by 30 U.S.C. 923(b); see                 modification many years after the initial
                                                     Operator enforcement of overpayment                  also 20 CFR 725.541; 725.542; 725.547.                award was entered.
                                                  orders, however, is an issue that is                    These provisions allow each overpaid                     (g) Although the Department has
                                                  outside the scope of this rulemaking.                   claimant to argue that he or she need                 determined that proposed § 725.310(e)
                                                  Because this rule does not impose any                   not repay the benefits because he or she              should be promulgated, the final rule
                                                  new obligations on operators (see 80 FR                 was without fault in incurring the                    contains several revisions based on
                                                  23744 (explaining that operators are                    overpayment, and repayment would                      comments received.
                                                  legally required to pay pursuant to                     either defeat the purpose of the Act or                  Several commenters contend that the
                                                  effective awards notwithstanding the                    be against equity and good conscience.                rule would require an operator who
                                                  pendency of a modification petition)), it                  Claimants only have one year from                  wants to challenge a particular medical
                                                  also does not impose a new need for an                  the date of a denial of benefits to request           expense or an attorney’s fee award to
                                                  enforcement remedy. These concerns                      modification. Yet waiver determinations               delay seeking modification until
                                                  represent a general complaint about the                 commonly take more than that one year                 ancillary litigation regarding the
                                                  law as it currently stands and therefore                to complete. They are factually                       disputed amount has concluded. The
                                                  should be directed to Congress, not the                 involved, requiring compilation of a                  comment reveals an ambiguity in the
                                                  Department. The Department may not                      completely different record addressing                proposed rule that the Department has
                                                  create a new cause of action in the                     the claimant’s role in creating the                   clarified in the final rule by more
                                                  courts. See Kontrick v. Ryan, 540 U.S.                  overpayment and the claimant’s current                specifically describing in § 725.310(e)(1)
                                                  443, 452 (2004) (‘‘Only Congress may                    financial position. As in a benefits claim            which awards an operator must pay
                                                  determine a lower federal court’s                       proceeding, a district director’s waiver              before pursuing modification.
                                                  subject-matter jurisdiction.’’); Castaneda              decision is not binding if the claimant                  Miners who meet the BLBA’s
                                                  v. Immigration & Naturalization Serv.,                  requests an administrative law judge                  entitlement criteria are entitled to
                                                  23 F.3d 1576, 1579 n.2 (10th Cir. 1994)                 hearing, and no repayment by the                      medical benefits for treatments
                                                  (‘‘[A]dministrative agencies cannot by                  claimant is due until after the                       necessitated by their pneumoconiosis
                                                  promulgation or interpretation of their                 administrative law judge considers the                and resultant disability. 20 CFR
                                                  own regulations either augment or                       waiver request. See 20 CFR 725.419(a),                725.701(a). A typical award of benefits
                                                  nullify the jurisdiction of the federal                 (d); 20 CFR 725.548(b). Thus, requiring               will order the responsible operator to
                                                  courts as delimited by Congress.’’)                     claimants to repay overpayments before                pay medical benefits generally, but will
                                                     In sum, this rule does not impose any                seeking modification could put them in                not contain findings as to whether any
                                                  payment obligations on operators that                   the untenable position of having to                   specific medical expense is
                                                  do not exist currently, and thus should                 choose between two statutory rights: (1)              compensable under the Act and
                                                  have no impact on operators’ incentive                  Repaying overpaid benefits within the                 regulations. The regulations recognize
                                                  to pursue modification when they                        one-year time limit for seeking                       several valid reasons why a particular
                                                  believe it is warranted. See, e.g., Crowe,              modification and foregoing their right to             bill may be disputed, including that the
                                                  646 F.3d at 445 (Hamilton, J.,                          seek a repayment waiver; or (2) seeking               medical service or supply was not for a
                                                  concurring) (noting that a pending                      a repayment waiver and foregoing the                  pulmonary disorder or was unnecessary.
                                                  modification request does not suspend                   right to seek modification.                           20 CFR 725.701(e). Operators have the
                                                  an operator’s obligation to pay pursuant                   This situation is not comparable to an             right to dispute their liability for
                                                  to an effective award); Hudson, 2012                    operator’s refusal to pay benefits                    individual medical bills or charges and
                                                  WL 386736, at *5 (same). Nor does this                  pursuant to an effective award. Under                 to take an unresolved dispute over the
                                                  rule remove the primary incentive for                   an effective award, an operator is legally            compensability of a medical bill to the
                                                  operators to pursue modification:                       required, by both the BLBA and its                    Office of Administrative Law Judges for
                                                  obtaining an order relieving them from                  implementing regulations, to pay                      resolution. See 20 CFR 725.708. Any
                                                  the obligation to pay any additional                    benefits without any further action. 33               employer contest of an individual
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                                                  benefits.                                               U.S.C. 921(b)(3) and (c), as incorporated             medical bill that goes to an
                                                     (f) The commenters contend that this                 by 30 U.S.C. 932(a); 20 CFR 725.502;                  administrative law judge results either
                                                  rule is unfair because claimants and                    Crowe, 646 F.3d at 445 (operator is                   in an order requiring payment or an
                                                  operators are treated differently.                      entitled to seek modification, but ‘‘not              order relieving the employer of the
                                                  Specifically, operators must                            legally entitled simply to ignore the                 obligation to pay. See 20 CFR 725.701.
                                                  demonstrate that they have complied                     final order of payment.’’); Vincent v.                   Thus, it is not uncommon for there to
                                                  with their payment obligations before                   Consolidated Operating Co., 17 F.3d                   be multiple effective orders compelling
                                                  seeking modification of an award, but                   782, 785–86 (5th Cir. 1994) (enforcing                an employer to pay medical benefits in


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                                                                      Federal Register / Vol. 81, No. 80 / Tuesday, April 26, 2016 / Rules and Regulations                                        24469

                                                  a given case. While proposed                            Co., 812 F.2d 574, 577 (9th Cir. 1987),               reference to the appropriate regulations.
                                                  § 725.310(e)(1) requires payment of only                and the fee award is final as well. See               Paragraph (e)(2) retains the general
                                                  ‘‘currently effective’’ awards as defined               Johnson v. Dir., OWCP, 183 F.3d 1169,                 requirement that operators must meet
                                                  by § 725.502(a), it does not identify                   1171 (9th Cir. 1999). See also 20 CFR                 their payment obligations before
                                                  whether a general award of medical                      725.367(b) (requiring payment of                      pursuing modification, which appeared
                                                  benefits or a later award addressing                    attorney fee only ‘‘after the award of                in proposed paragraph (e)(1). The
                                                  specific medical charges triggers the                   benefits becomes final’’). Thus, the                  Department has removed the phrase
                                                  operator’s obligation to pay before being               Department has amended § 725.310(e) to                ‘‘currently effective’’ in describing
                                                  allowed to pursue modification. The                     clarify that an employer must pay                     orders that must be paid because it is
                                                  Department has modified the final rule                  attorney fee awards prior to                          redundant; orders are no longer
                                                  to clarify that only effective orders                   modification only if both the underlying              ‘‘effective’’ when they are vacated by a
                                                  directing payment of specific medical                   benefit award and the fee award are                   higher tribunal or superseded by an
                                                  bills must be paid before an operator                   final as defined by 20 CFR 725.419(d)                 effective order on modification. See 20
                                                  may pursue modification. Such an order                  (district director decision), 725.479(a)              CFR 725.502(a)(1). Revised paragraphs
                                                  may arise in two ways. First, an                        (administrative law judge decision) or                (e)(2)(i)–(v) describe the particular
                                                  effective order may arise if an operator                802.406 (Benefits Review Board                        obligations an operator must prove it
                                                  does not timely contest specific medical                decision).                                            has satisfied and implements the
                                                  bills brought to its attention by a district               Two commenters object to proposed                  revisions described in detail above
                                                  director. See 20 CFR 725.502(a)(2).                     § 725.310(e)(1)(ii), which requires                   regarding orders awarding medical
                                                  Second, an effective order directing the                employers to reimburse the Trust Fund                 benefits or attorneys’ fees, and striking
                                                  payment of specific medical bills may                   for benefits paid to claimants ‘‘with                 the words ‘‘penalties. . . . as are
                                                  be entered by an administrative law                     such penalties and interest as are                    appropriate’’ from obligations an
                                                  judge after a hearing on the                            appropriate’’ prior to seeking                        operator must satisfy.
                                                  compensability of those medical                         modification. The commenters assert                      (h) No other significant comments
                                                  charges. See id. This revision ensures                  that the term ‘‘penalties’’ is ambiguous              were received concerning this section,
                                                  that operators will maintain the right to               and confusing and that its meaning                    and the Department has promulgated
                                                  contest the compensability of each                      should be clarified. They note that the               the remainder of the regulation as
                                                  individual medical expense before an                    Department has proposed amending                      proposed.
                                                  administrative law judge without                        other regulations (§§ 725.601 and
                                                                                                                                                                20 CFR 725.413 Disclosure of Medical
                                                  burdening the right to seek modification                725.607), in part to make clear that
                                                                                                                                                                Information
                                                  of the underlying benefits award while                  additional compensation is not a
                                                  review is underway. The final rule also                 ‘‘penalty.’’ The commenters also suggest                (a) The Department proposed a new
                                                  protects claimants and the Trust Fund                   that the modifying clause, ‘‘as are                   provision that would require the parties
                                                  by requiring prompt payment or                          appropriate,’’ could be read as a grant of            to exchange all medical information
                                                  reimbursement of medical expenses that                  discretion to the adjudicator to fashion              developed in connection with a claim.
                                                  have been adjudicated to be                             extra-regulatory penalties.                           80 FR 23745–47, 23752. Currently,
                                                  compensable.                                               The commenters are correct that the                parties may develop medical
                                                     The commenters similarly contend                     term ‘‘penalties’’ is not intended to refer           information (subject to certain limits on
                                                  that the proposed rule would require                    to the additional compensation that is                examinations of the miner) in excess of
                                                  employers to delay seeking modification                 payable to claimants under § 725.607,                 the evidentiary limitations set out in
                                                  until ancillary litigation regarding                    and the Department did not intend to                  § 725.414, and then select from that
                                                  attorneys’ fees is concluded. The                       authorize adjudicators to assess new                  information those pieces they wish to
                                                  proposed rule requires that attorneys’                  penalties against operators. The                      submit into evidence. Medical
                                                  fees be paid before an employer is                      proposed rule refers to certain statutory             information developed but not
                                                  allowed to pursue modification                          and regulatory civil money penalties                  submitted into evidence generally
                                                  provided two conditions are met: The                    that are payable to the Trust Fund.                   remains in the sole custody of the party
                                                  fee must be ‘‘approved,’’ and the                       These penalties may be imposed for                    who developed it unless an opposing
                                                  underlying benefits award must be final                 failure to secure the payment of                      party is able to obtain the information
                                                  (i.e., the time to appeal the benefits                  benefits, i.e., an employer’s failure                 through formal discovery.
                                                  award has expired or appellate review                   either to secure commercial insurance                   The Department’s proposed rule
                                                  has concluded). The proposed rule does                  or receive permission to self-insure its              would change this status quo by
                                                  not define the term ‘‘approved,’’ and the               benefit liability (30 U.S.C. 933(d); 20               requiring parties to share medical
                                                  Department recognizes that the term                     CFR 726.300) and for an employer’s                    information developed in connection
                                                  may be susceptible to multiple                          failure to file a required report (30                 with a claim. The Department
                                                  interpretations.                                        U.S.C. 942(b); 20 CFR 725.621(d)). After              articulated several reasons for the
                                                     In proposing § 725.310(e)(1), the                    considering the commenters’ objections,               change. See 80 FR 23746–47. First,
                                                  Department intended to require                          the Department has determined that the                experience has demonstrated that
                                                  operators to pay only those amounts                     language requiring operators to pay civil             miners may be harmed if they do not
                                                  that are otherwise due and payable as a                 money penalties as a condition to                     have access to all information about
                                                  precondition to seeking modification.                   seeking modification of an award of                   their health, and the primary purpose of
                                                  With regard to attorney fees, the case                  benefits is unnecessary. Therefore, the               the Mine Safety and Health Act is to
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                                                  law construing section 28 of the                        Department has deleted the words                      protect the health and safety of miners.
                                                  Longshore Act, the source of the BLBA’s                 ‘‘penalties’’ and ‘‘as are appropriate’’              To illustrate the potential for adverse
                                                  attorneys’ fee provision (see 33 U.S.C.                 from § 725.310(e) in the final rule.                  impact on the miner’s health, the
                                                  928, as incorporated by 30 U.S.C.                          The Department has revised                         Department described the proceedings
                                                  932(a)), is clear that attorneys’ fee                   § 725.310(e) in the final rule to reflect             in miner Gary Fox’s claims for benefits,
                                                  awards are not due and payable until                    these comments and to simplify the                    where the coal-mine operator withheld
                                                  the underlying benefit award is final,                  rule. Paragraph (e)(1) now defines                    medical information documenting
                                                  see Thompson v. Potashnick Constr.                      ‘‘effective’’ and ‘‘final’’ orders by                 complicated pneumoconiosis from both


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                                                  24470               Federal Register / Vol. 81, No. 80 / Tuesday, April 26, 2016 / Rules and Regulations

                                                  the miner and some of its own medical                   Security Act and Longshore Act                           Next, the same commenters state that
                                                  experts. Second, by requiring an                        provisions (see Section II, supra)                    the Department cannot rely on Social
                                                  exchange of medical information, the                    granting the Secretary regulatory                     Security Act section 205(a), which they
                                                  rule protects parties who do not have                   authority nor the Administrative                      claim has no applicability to Part C
                                                  legal representation who can assist in                  Procedure Act (APA) are sufficient to                 BLBA claim proceedings (i.e., claims
                                                  the formal discovery process. Finally,                  sustain promulgation of this regulation.              filed after 1973 and administered by the
                                                  allowing parties fuller access to medical               They also argue that the rule is                      Department) because it is located in Part
                                                  information may lead to better, more                    unnecessary because only one attorney                 B of the Act, and provides no authority
                                                  accurate decisions on claims—a goal                     engaged in the conduct the rule                       for importing Social Security
                                                  that is consistent with Congressional                   addresses. They further contend that the              Administration procedures into Part C
                                                  intent.                                                 Department has not demonstrated a                     claim adjudications. The commenters
                                                     In addition to establishing the                      quantifiable positive impact on miners’               are simply mistaken on their first point
                                                  disclosure requirement and time frames                  health that would result from the rule.               and misconstrue the Department’s
                                                  within which parties must exchange                      If the Department promulgates a                       action on their second. The fact that the
                                                  medical information, the proposed rule                  medical information disclosure rule,                  Social Security Act incorporation
                                                  set forth a non-exclusive list of                       several commenters ask for clarification              appears in Part B of the Act does not
                                                  sanctions an adjudication officer may                   of specific portions of the rule.                     preclude the Secretary from basing
                                                  impose on the party or the party’s                         After giving full consideration to the             regulations for Part C claims on that
                                                  attorney for failure to disclose medical                comments, the Department believes the                 authority. 30 U.S.C. 940 (providing that
                                                  information in accordance with the rule.                rule is important to protecting the                   ‘‘amendments made by the Black Lung
                                                  80 FR 23752. But the rule provided that                 health of miners and is promulgating it               Benefits Act of 1972,’’ which included
                                                  sanctions may be imposed only after                     with certain revisions described below.               the incorporation of Social Security Act
                                                  giving the party an opportunity to                      The following discussion addresses all                section 205(a), ‘‘shall, to the extent
                                                  demonstrate ‘‘good cause’’ for non-                     of the significant comments the                       appropriate, also apply to this part
                                                  disclosure, and the sanctions imposed                   Department received and explains each                 [C].’’). Indeed, both the District of
                                                  must be ‘‘appropriate to the                            revision in the final rule.                           Columbia and Fourth Circuit Courts of
                                                  circumstances.’’ Id. The proposed rule                                                                        Appeals have upheld the Department’s
                                                                                                             (c) Some commenters ask the
                                                  also required the adjudication officer to                                                                     procedural regulations governing Part C
                                                                                                          Department to withdraw the rule,
                                                  consider whether sanctions should be                                                                          claims by relying at least in part on this
                                                                                                          arguing that the Department lacks
                                                  mitigated because the party was not                                                                           statutory authority. See Nat’l Min.
                                                                                                          statutory authority to promulgate it. The
                                                  represented by an attorney when the                                                                           Ass’n. v. Dep’t. of Labor, 292 F.3d 849,
                                                                                                          Department disagrees with this
                                                  non-disclosure occurred, or the non-                                                                          873–7 (D.C. Cir. 2002) (holding that
                                                                                                          comment. As discussed in detail above
                                                  disclosure was attributable solely to the                                                                     section 205(a) and 5 U.S.C. 556(d)—
                                                                                                          (see Section II, supra), Congress granted
                                                  party’s attorney.                                                                                             which allows agencies to exclude
                                                     (b) The Department received several                  the Secretary broad rulemaking
                                                                                                                                                                ‘‘unduly repetitious evidence’’ as ‘‘a
                                                  comments on the proposed rule. The                      authority generally, and in governing
                                                                                                                                                                matter of policy’’—constituted sufficient
                                                  comments ranged from supporting the                     evidentiary matters specifically. See 30
                                                                                                                                                                authority for the regulatory evidence
                                                  proposed rule’s promulgation without                    U.S.C. 923(b) (incorporating 42 U.S.C.
                                                                                                                                                                limitations at 20 CFR 725.414, which
                                                  change to advocating the rule’s                         405(a)); 936(a). The statute also plainly
                                                                                                                                                                are applicable to Part C claims); Elm
                                                  withdrawal. Those commenters                            authorizes the Department to depart
                                                                                                                                                                Grove Coal Co. v. Dir., OWCP, 480 F.3d
                                                  supporting the rule agreed with the                     from traditional procedural and
                                                                                                                                                                278, 293 (4th Cir. 2007) (holding in Part
                                                  Department that the rule is a fair and                  evidentiary rules (such as those                      C claim that incorporation of section
                                                  reasonable method of protecting the                     governing discovery) in order to best                 205(a), Administrative Procedure Act
                                                  health and safety of miners, noting                     ascertain the rights of the parties in                section 556(d), and grant of general
                                                  variously that it was ‘‘critical’’ and                  claims adjudications. 33 U.S.C. 923(a),               rulemaking authority in 30 U.S.C. 936
                                                  ‘‘ethical’’ for miners to have access to                as incorporated by 30 U.S.C. 932(a).                  authorize the Secretary ‘‘to adopt
                                                  their health records. Others described                     The objecting commenters dispute the               reasonable regulations on the nature and
                                                  experiences in representing claimants                   Department’s reliance on these statutory              extent of the proofs and evidence in
                                                  where the operator had skewed the                       authorities. Without acknowledging the                order to establish rights to benefits
                                                  medical evidence by withholding                         Secretary’s general rulemaking authority              under the Act’’). Moreover, § 725.413
                                                  various pieces of medical information                   under 30 U.S.C. 936(a), they contend                  does not import Social Security
                                                  from their own experts or only partially                that neither the incorporated Longshore               Administration procedures but instead
                                                  disclosing a physician’s opinion. A                     Act nor the incorporated Social Security              provides a new rule applicable to Part
                                                  Member of Congress praised the                          Act provisions support promulgation of                C claims.
                                                  Department’s efforts, noting that the                   § 725.413. First, these commenters                       Promulgating a procedural rule
                                                  proposed rule could prevent harm to a                   assert that the Department’s reliance on              requiring parties to exchange medical
                                                  miner who might otherwise be unaware                    Longshore Act section 23(a) is                        information developed in connection
                                                  of medical problems he or she may                       hypocritical because proposed § 725.413               with a claim—a rule that governs
                                                  suffer and would level the playing field                is itself a technical rule of procedure.              proceedings before the agency, is party-
                                                  in claims adjudications, especially for                 While § 725.413 is undoubtedly                        neutral, protects a miner’s health, and
                                                  unrepresented miners who would have                     procedural, it will relieve the parties               assists unrepresented parties—falls well
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                                                  difficulty navigating the discovery                     from the burden of complex discovery                  within these statutory authorities.
                                                  process.                                                rules and will simplify claim                            (d) Apart from requiring the exchange
                                                     Those commenters opposed to                          proceedings and make them fairer,                     of medical information, several
                                                  proposed § 725.413 state that the                       especially for those parties not                      commenters contend that the
                                                  Department does not have statutory                      represented by counsel. The rule is thus              Department lacks statutory authority to
                                                  authority to promulgate the rule, or to                 fully consistent with section 23(a)’s                 promulgate regulations permitting the
                                                  impose sanctions, or both. They contend                 overarching command to ‘‘best ascertain               imposition of sanctions on parties or
                                                  that neither the incorporated Social                    the rights of the parties.’’                          their attorneys who fail to properly


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                                                                      Federal Register / Vol. 81, No. 80 / Tuesday, April 26, 2016 / Rules and Regulations                                         24471

                                                  disclose medical information. In                        APA’s hearing-related provisions into                 also allowed imposition of sanctions in
                                                  support, they assert that: The                          the BLBA. Thus, the commenters’                       certain circumstances).
                                                  Administrative Procedure Act (APA), 5                   reliance on section 558 is misplaced.                    Nor does section 27 of the Longshore
                                                  U.S.C. 501 et seq., and section 558(b) in                  Even assuming that (1) all provisions              Act, 33 U.S.C. 927, incorporated into the
                                                  particular, 5 U.S.C. 558(b), prohibit an                of the APA apply and (2) the                          BLBA by 30 U.S.C. 932(a), preclude the
                                                  agency from imposing sanctions; only                    Department may not vary them by                       Department from imposing discovery
                                                  courts established under Article III of                 regulation, solid authority holds that                sanctions. That provision authorizes
                                                  the Constitution (i.e., federal district                agencies may impose sanctions, short of               adjudication officers to refer acts of
                                                  and appellate courts) may impose                        fines and imprisonment, to enforce                    contempt to a United States district
                                                  sanctions of fines and imprisonment;                    compliance with their discovery rules,                court for punishment by fine or
                                                  and neither the APA nor the BLBA                        particularly discovery orders made in                 imprisonment. It does not preclude the
                                                  authorizes sanctioning of attorneys in                  the context of judicial-type proceedings.             Department from imposing the lesser
                                                  any event.                                              See Atlantic Richfield Co. v. U.S. Dep’t              sanctions set out in the proposed rule.
                                                     To the extent these commenters base                  of Energy, 769 F.2d 771, 794 (D.C. Cir.               See Atlantic Richfield, 769 F.2d at 795
                                                  their objections on the APA, their                      1984). The District of Columbia Circuit               (noting that ‘‘[a]n evidentiary preclusion
                                                  comments misapprehend how the                           recognized in Atlantic Richfield that it              order falls far short of an effort to exact
                                                  APA’s provisions interface with the                     would be ‘‘incongruous to grant an                    compliance with a subpoena by a
                                                  BLBA. By statute, the APA does not                      agency authority to adjudicate—which                  judgment of fine or imprisonment’’).
                                                  apply to BLBA adjudications except as                   involves vitally the power to find the                   Two commenters state that the list of
                                                  ‘‘otherwise provided’’ in the Mine                      material facts—and yet deny authority                 possible sanctions in proposed
                                                  Safety and Health Act. 30 U.S.C. 956                    to assure the soundness of the                        § 725.413(c)(2) is unclear because it is
                                                  (‘‘Except as otherwise provided in this                                                                       non-exclusive, suggesting that the
                                                                                                          factfinding process’’ through use of
                                                  chapter, the provisions of sections 551                                                                       Department strike the sanctions list
                                                                                                          discovery sanctions. See also Roadway
                                                  to 559 and sections 701 to 706 of Title                                                                       from the rule. The Department
                                                                                                          Express Inc. v. U.S. Dep’t of Labor, 495
                                                  5 shall not apply to the making of any                                                                        anticipates that in most instances, an
                                                                                                          F.3d 477, 485 (7th Cir. 2007) (approving
                                                  order, notice, or decision made pursuant                                                                      adjudication officer will impose one of
                                                                                                          of ALJ’s use of discovery sanction to
                                                  to this chapter[.]’’). The BLBA otherwise                                                                     the listed sanctions, and therefore the
                                                                                                          ‘‘level the playing field’’ where party’s
                                                  provides for application of the APA                                                                           presence of a sanctions list leads to
                                                                                                          non-compliance ‘‘made it impossible’’
                                                  provisions governing hearings—                                                                                greater clarity. An adjudication officer,
                                                                                                          for the ALJ to decide the case on the
                                                  specifically, 5 U.S.C. 554 (which, in                                                                         who is charged with governing the
                                                                                                          merits); McAllister Towing & Transp.
                                                  turn, refers to 5 U.S.C. 556)—by                                                                              conduct of proceedings and resolving
                                                                                                          Co., Inc. v. NLRB, 156 Fed. App’x 386,                contested issues of fact or law (see
                                                  incorporating Longshore Act section
                                                                                                          388 (2d Cir. 2005) (affirming ALJ’s                   generally 20 CFR 725.455), should be
                                                  19(d). 33 U.S.C. 919(d), as incorporated
                                                                                                          imposition of discovery sanctions, citing             free, however, to fashion a remedy
                                                  by 30 U.S.C. 932(a). But as explained
                                                                                                          Atlantic Richfield). But see NLRB v. Int’l            unique to the particular case at hand
                                                  above (see Section II, supra), that
                                                                                                          Medication Sys., Ltd., 640 F.2d 1110,                 when warranted. But to clarify this
                                                  incorporation is subject to an important
                                                                                                          1114 (9th Cir. 1981) (agency was                      provision and allay any concerns that
                                                  limitation: The Longshore Act
                                                                                                          required to enforce a subpoena through                the non-exclusive list could lead to the
                                                  provisions are incorporated ‘‘except as
                                                                                                          federal district court and could not                  imposition of fines or imprisonment, the
                                                  otherwise provided . . . by regulations
                                                  of the Secretary.’’ 30 U.S.C. 932(a).                   preclude employer from introducing                    Department has revised the rule to
                                                  Thus, ‘‘under the express language of                   evidence on issue as sanction for failure             preclude these sanctions. Fines and
                                                  the BLBA, the APA does not trump [a                     to comply with subpoena). And while it                imprisonment are inherent in contempt
                                                  black lung program] regulation.’’ Amax                  is true that the APA prohibits an                     powers, which section 27 of the
                                                  Coal Co. v. Dir., OWCP, 312 F.3d 882,                   agency’s imposition of sanctions                      Longshore Act vests in the federal
                                                  893 (7th Cir. 2002); accord Midland                     ‘‘except within jurisdiction delegated to             courts. 33 U.S.C. 927, as incorporated by
                                                  Coal Co. v. Dir., OWCP, 149 F.3d 558,                   the agency and as authorized by law,’’                30 U.S.C. 932(a). This revision appears
                                                  563 (7th Cir. 1998) (overruled on other                 5 U.S.C. 558(b), this provision, even if              at § 725.413(e)(3) in the final rule.
                                                  grounds by Saban v. U.S. Dep’t of Labor,                applicable, does not preclude sanctions                  Finally, one commenter proposed
                                                  509 F.3d 376 (7th Cir. 2007)).                          aimed at protecting the integrity of the              expanding available sanctions to
                                                     Unlike the APA hearing provisions,                   administrative process. Am. Bus Ass’n                 include permanent disbarment of
                                                  neither the BLBA nor the Department’s                   v. Slater, 231 F.3d 1, 7 (D.C. Cir. 2000).            attorneys from all BLBA practice. The
                                                  implementing regulations calls for                      See also Davy v. SEC, 792 F.2d 1418,                  Department does not believe that this
                                                  application of section 5 U.S.C. 558, the                1421 (9th Cir. 1986) (general grant of                sanction is necessary to enforce the
                                                  APA section the commenters rely upon                    regulatory authority to SEC was                       medical information disclosure rule
                                                  most heavily to challenge the                           sufficient to allow adoption of rule                  effectively. An adjudicator’s authority
                                                  Department’s authority to impose                        providing for sanctioning accountants                 extends to determining the merits of an
                                                  sanctions under § 725.413. Section                      practicing before the agency).                        individual claim. See, e.g., 33 U.S.C.
                                                  558(b) provides that ‘‘[a] sanction may                    Contrary to the commenters’                        919(a), as incorporated by 30 U.S.C.
                                                  not be imposed . . . except within                      implication, no different rule applies                932(a) (the adjudicator has the
                                                  jurisdiction delegated to the agency and                when sanctioning parties’                             ‘‘authority to hear and determine all
                                                  as authorized by law.’’ 5 U.S.C. 558(b).                representatives. Agencies have the                    questions in respect of [a] claim’’). Thus,
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                                                  The Mine Safety and Health Act                          inherent authority to discipline lawyers              the Department believes that any
                                                  specifically excludes this APA section                  who appear before them. See Polydoroff                sanction’s impact should be confined to
                                                  from incorporation unless ‘‘otherwise                   v. I.C.C., 773 F.2d 372, 374 (D.C. Cir.               the claim under consideration. The
                                                  provided,’’ and the BLBA does not                       1985). See also 80 FR 28768, 28769–75                 sanctions listed in § 725.413 are claim-
                                                  ‘‘otherwise provide’’ for its application.              (May 19, 2015) (rejecting same concerns               specific and should be sufficient to
                                                  30 U.S.C. 956. Nor is this provision                    raised in response to the proposed                    protect the integrity of the claims
                                                  incorporated through the circuitous                     Office of Administrative Law Judges                   process. The Department therefore
                                                  Longshore Act route that brings the                     Rules of Practice and Procedure, which                declines to adopt this suggestion.


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                                                  24472               Federal Register / Vol. 81, No. 80 / Tuesday, April 26, 2016 / Rules and Regulations

                                                     (e) Three commenters argue that                      Windsor Coal Co., BRB Decision and                    such period or periods as may be
                                                  requiring parties to exchange medical                   Order, BRB No. 06–0710 (Aug. 15,                      necessary to prevent further
                                                  information is an overreaction to an                    2007). It is the first two categories of              development of such disease[.]’’).
                                                  isolated case, claiming that only one                   cases in which § 725.413 will change                  Section 725.413 fully comports with
                                                  attorney engaged in the conduct                         the result by requiring the exchange of               Congress’ desires.
                                                  addressed by proposed § 725.413. These                  previously undisclosed medical                           (f) The Department received several
                                                  commenters state that the Department                    information.                                          comments suggesting various
                                                  cited only one case involving                              These commenters also assert that the              clarifications and other changes to the
                                                  undisclosed medical information in the                  Department failed to quantify the                     proposed definition of ‘‘medical
                                                  NPRM, and failed to fully assess the                    general impact of non-disclosure on                   information’’ at § 725.413(a). As
                                                  need for the rulemaking.                                miners’ health. Doing so with any                     proposed, ‘‘medical information’’
                                                     These comments are not accurate.                     certainty is impractical for several                  includes medical data about a miner
                                                  Although the Department illustrated the                 reasons. By their nature, these cases                 that was developed in connection with
                                                  need for the rule with a detailed                       come to light only when a party takes                 a claim for benefits (§ 725.413(a)) and
                                                  summary of miner Gary Fox’s claims, it                  affirmative action to discover medical                that is: (1) An examining physician’s
                                                  also cited two additional cases                         information; the Department cannot                    assessment of the miner, including
                                                  (involving different attorneys) in the                  quantify the volume of undisclosed                    findings, test results, diagnoses, and
                                                  NPRM. 80 FR 23746. More importantly,                    medical information in cases where                    conclusions (§ 725.413(a)(1)); or (2) any
                                                                                                          parties do not pursue discovery of that               other physician’s or medical
                                                  the issue of withholding medical
                                                                                                          information and, in fact, might not even              professional’s opinion or interpretation
                                                  information generated by non-testifying
                                                                                                          know of its existence. The same is true               of tests, procedures and related
                                                  experts has persistently recurred in
                                                                                                          in those instances where the employer                 documentation, but only to the extent
                                                  black lung claims and has been litigated
                                                                                                          has chosen to accept liability for the                they address the miner’s respiratory or
                                                  by some members of the associations
                                                                                                          claim rather than disclosing the non-                 pulmonary condition (§ 725.413(a)(2)–
                                                  making this comment. Several other
                                                                                                          testifying expert’s opinion. The                      (4)). 80 FR 23747, 23752. Thus, the
                                                  commenters listed and described
                                                                                                          Department also cannot assess whether                 medical data subject to disclosure is
                                                  additional claims in which medical
                                                                                                          any particular piece of medical                       generally limited to data generated in
                                                  evidence was withheld. These cases,
                                                                                                          information would have an impact on                   the claim’s litigation and relevant to the
                                                  along with others the Department has                    any one miner’s course of treatment or
                                                  identified, generally fall into three                                                                         primary question in the claim—the
                                                                                                          disease. But common sense dictates that               miner’s respiratory or pulmonary
                                                  categories. In the first, the adjudication              better-informed miners and medical
                                                  officer denies the party’s (either the                                                                        condition.
                                                                                                          providers are able to make better
                                                  claimant’s or the operator’s) motion to                                                                          (1) Two commenters express concern
                                                                                                          decisions regarding a miner’s care.
                                                  compel discovery of the medical                            And, to the extent these commenters                that proposed § 725.413(a) does not
                                                  information because the party did not                   are correct in stating that, with very few            specifically exclude a miner’s medical
                                                  meet the standard for gaining discovery                 exceptions, parties already exchange all              treatment records from the definition of
                                                  of a non-testifying expert’s opinion                    medical information developed, they                   ‘‘medical information’’ subject to
                                                  imposed under the Office of                             should not be affected by the final rule.             mandatory exchange between parties.
                                                  Administrative Law Judges Rules of                      Apart from a slightly earlier deadline for            As the Department explained in the
                                                  Practice and Procedure (OALJ Rules).                    exchanging medical information,                       NPRM, 80 FR 23747, treatment records
                                                  See, e.g., Keener v. Peerless Eagle Coal                § 725.413 will not change those parties’              are not medical data a party ‘‘develops
                                                  Co., ALJ Ruling and Order on Claimant’s                 current practice.                                     in connection with a claim’’ and thus do
                                                  Motion to Compel and Employer’s                            Despite the practical barriers to the              not meet the definition of ‘‘medical
                                                  Motion for Protective Order, 2004–BLA–                  suggested analysis, Congress was certain              information.’’ Instead, these records are
                                                  06265 (Apr. 12, 2005), aff’d BRB                        in its primary direction to the                       generated in the routine course of a
                                                  Decision and Order, BRB No. 05–1008                     Department: ‘‘[T]he first priority and                miner’s treatment and, if pertinent to
                                                  (Jan. 26, 2007); Lester v. Royalty                      concern of all in the coal or other                   the miner’s respiratory or pulmonary
                                                  Smokeless Coal Co., ALJ Decision and                    mining industry must be the health and                condition, are admissible without
                                                  Order on Remand Granting Benefits,                      safety of its most precious resource—the              limitation. 20 CFR 725.414(a)(4). But to
                                                  2004–BLA–05700 (Mar. 4, 2008). In the                   miner.’’ 30 U.S.C. 801(a). Congress also              allay any concern, the Department has
                                                  second, the claimant’s motion to compel                 explicitly recognized the importance of               revised § 725.413 to explicitly exclude
                                                  is granted, but the employer still avoids               medical information to miners’ health                 treatment records from the ‘‘medical
                                                  disclosure by accepting liability for                   when it mandated medical screening to                 information’’ subject to exchange
                                                  benefits and paying the claim. See, e.g.,               detect pneumoconiosis and provided                    between the parties under this
                                                  Daugherty v. Westmoreland Coal Co.,                     that miners with evidence of                          regulation. The new language is in
                                                  ALJ Order Remanding Case to District                    pneumoconiosis could transfer to less-                paragraph (b)(1) of the final regulation.
                                                  Director, 2001–BLA–00594 (Mar. 21,                      dusty areas of the mine site. 30 U.S.C.                  (2) Several commenters assert that
                                                  2005); Renick v. Consolidation Coal Co.,                843(a) (requiring underground coal                    § 725.413 should exclude from ‘‘medical
                                                  ALJ Order of Remand for Payment,                        mine operators to offer chest X-ray                   information’’ all draft medical reports.
                                                  2002–BLA–00083 (Sept. 9, 2002); and                     evaluations to miners periodically); 30               These same commenters also urge the
                                                  Harris v. Westmorland Coal Co., Order                   U.S.C. 843(b) (‘‘[A]ny miner who, in the              Department to exclude all
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                                                  Denying Claimant’s Request for                          judgment of the Secretary of Health and               communications between a party’s
                                                  Reconsideration, 1998–BLA–0188 (Aug.                    Human Services based upon [a chest X-                 attorney and its medical experts. For the
                                                  7, 1998). And in the third, the motion                  ray] reading or other medical                         reasons that follow, the Department
                                                  to compel is granted and the medical                    examinations, shows evidence of the                   disagrees that draft medical reports
                                                  information is disclosed. See, e.g., Wood               development of pneumoconiosis shall                   should be excluded from ‘‘medical
                                                  v. Elkay Mining Co., ALJ Decision and                   be afforded the option of transferring                information’’ but has adopted the
                                                  Order—Awarding Benefits, 2001–BLA–                      from his position to another position in              commenters’ suggestion to exclude
                                                  00701 (May 23, 2007); Huggins v.                        any [less-dusty] area of the mine, for                attorney communications with experts


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                                                                      Federal Register / Vol. 81, No. 80 / Tuesday, April 26, 2016 / Rules and Regulations                                        24473

                                                  from § 725.413’s disclosure                             opinions on the miner’s condition and                 scope of information that must be
                                                  requirements.                                           simply not share them with the                        exchanged with opposing parties (e.g.,
                                                     To support their request for these                   opposing party, or perhaps even their                 data about a billing method would not
                                                  exclusions, the commenters point                        remaining expert witnesses. If an                     meet the criteria).
                                                  variously to Federal Rule of Civil                      employer engaged in that conduct, a                      Moreover, developing an exhaustive
                                                  Procedure 26(b)(4)(B) and (C) and the                   primary purpose of the rule—protecting                list would not be practical because it
                                                  OALJ Rules, 80 FR 28793 (May 19,                        the health and safety of the miner by                 could easily omit relevant medical data.
                                                  2015) (to be codified at 29 CFR                         ensuring access to all information about              Another black lung program regulation
                                                  18.51(d)), which incorporate the                        his or her health—would be thwarted.                  (20 CFR 718.107(a)) correctly
                                                  concepts embodied in the Federal Rule.                  And if a claimant did the same, another               countenances the possibility that
                                                  When an expert is required to submit                    primary purpose of the rule—accurate                  medical testing methods other than
                                                  written reports or other disclosures,                   claims adjudication—could be in                       those explicitly addressed in the
                                                  those rules protect his or her draft                    jeopardy.                                             regulations may be used to evaluate a
                                                  reports from discovery. Fed. R. Civ. P.                   On the other hand, the Department                   miner’s respiratory or pulmonary
                                                  26(b)(4)(B); 80 FR 28793 (to be codified                does not see a similarly compelling                   condition. See id. (allowing for
                                                  at 29 CFR 18.51(d)(2)). Similarly, the                  need to routinely require disclosure of               admission of ‘‘any medically acceptable
                                                  rules generally protect from disclosure                 communications from an attorney (or                   test or procedure reported by a
                                                  communications between the party’s                      non-attorney representative, see 20 CFR               physician and not addressed in this
                                                  attorney and the expert witness except                  725.363(b)) to a medical expert. When                 subpart, which tends to demonstrate the
                                                  when those communications pertain to                    prepared by an attorney, these                        presence or absence of pneumoconiosis,
                                                  the expert’s compensation, facts or data                communications are generally protected                the sequelae of pneumoconiosis or a
                                                  the attorney provided to the expert, or                 from disclosure, except in the                        respiratory or pulmonary impairment’’).
                                                  assumptions provided by the attorney to                 circumstances noted above, and are                    Adopting a finite list in § 725.413 could
                                                  the expert that the expert relied on in                 more likely to include the attorney’s                 inadvertently exclude otherwise
                                                  forming his or her opinion. Fed. R. Civ.                impressions and legal analysis of the                 important data, especially as testing
                                                  P. 26(b)(4)(C); 80 FR 28793 (to be                      case. And they generally do not have a                methods evolve in the future.
                                                  codified at 29 CFR 18.51(d)(3)). These                  direct bearing on protecting the miner’s                 (4) Two commenters ask the
                                                  rules are designed to allow discovery of                health. Accordingly, the Department                   Department to clarify whether the form
                                                  the facts and data on which the expert                  believes these communications should                  in which the party receives the medical
                                                  bases his or her opinion without                        not be considered ‘‘medical                           information (i.e., written, electronic, or
                                                  unnecessarily interfering with effective                information’’ subject to mandatory                    orally) affects the duty under § 725.413
                                                  communication between the attorney                      exchange with the other parties. The                  to exchange that information. As
                                                  and the expert or disclosing the                        Department has added new language to                  proposed, § 725.413(a)(1) and (2) require
                                                  attorney’s mental impressions and                       paragraph (b)(2) in the final rule to                 the parties to exchange physicians’
                                                  theories about the case. See generally                  exclude attorney (and non-attorney                    ‘‘written or testimonial assessment of
                                                  Fed. R. Civ. P. 26, Advisory Committee                  representative) communications from                   the miner.’’ The remainder of the rule is
                                                  comment to 2010 amendments.                             the rule’s disclosure requirements. The               silent regarding the form of the
                                                     As noted above (see Section II, supra),              Department notes, however, that the                   communication. The Department agrees
                                                  formal rules of procedure do not strictly               exclusion would not protect disclosure                that the rule should be clarified on this
                                                  apply in black lung claims                              of these communications when                          point and has revised paragraph (a) in
                                                  adjudications. And a program-specific                   otherwise ordered. See, e.g, Elm Grove                the final rule. With this change, the
                                                  regulation applies over either the                      Coal, 480 F.3d at 299–303. The rule                   Department intends to make all written
                                                  Federal Rules or the OALJ Rules. 80 FR                  simply does not require their exchange.               medical information, whether received
                                                  28785, to be codified at 29 CFR 18.10                     (3) Two commenters ask the                          in electronic (e.g., email, facsimile, Web
                                                  (OALJ rules do not apply ‘‘[i]f a specific              Department to revise § 725.413(a) to                  portal or other electronic media) or
                                                  Department of Labor regulation                          include ‘‘an exhaustive list’’ of ‘‘medical           hard-copy format, subject to § 725.413’s
                                                  governs[,]’’ and the Federal Rules of                   information’’ that must be exchanged.                 requirements. This would also include
                                                  Civil Procedure apply only in situations                They claim that the proposed rule does                testimonial medical information
                                                  not provided for in the OALJ rules or                   not adequately describe the scope of                  resulting from depositions (e.g.,
                                                  other governing regulation). See also 80                covered information. To illustrate, the               transcripts of depositions). But the rule
                                                  FR 28773 (discussing 29 CFR 18.10 and                   commenters point to several examples,                 is not intended to cover oral
                                                  stating that ‘‘[n]othing in [the OALJ]                  such as data the Social Security                      communications. The Department has
                                                  rules would prevent the Department                      Administration considers ‘‘health                     no mechanism to monitor oral
                                                  from adopting a procedural rule that                    information’’ (e.g., a patient’s method of            communications, and compliance with
                                                  applies only in BLBA claim                              bill payment) and suggest that ‘‘medical              such a rule would be impossible to
                                                  adjudications or other program-specific                 information’’ could be construed to                   enforce.
                                                  contexts.’’).                                           include such data.                                       (g) Two commenters express concern
                                                     In this instance, the Department                       The Department has not added a                      that the proposed rule does not
                                                  believes a rule governing draft reports                 complete list of ‘‘medical information’’              adequately address the interplay
                                                  designed specifically for the Black Lung                to the final rule. As explained, the rule             between § 725.413’s disclosure
                                                  program will serve the program’s                        expressly limits disclosure to medical                requirements and § 725.414’s evidence-
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                                                  purposes better than the general rule.                  information developed in connection                   limiting provisions (which restrict the
                                                  Exempting all draft medical reports                     with a claim for benefits and, with the               number of objective tests and medical
                                                  from § 725.413’s disclosure                             exception of an examining physician’s                 reports parties may offer into evidence),
                                                  requirements could easily eviscerate the                report, further limits required disclosure            and may lead to confusion as to whether
                                                  rule: The disclosure requirement could                  to data addressing the miner’s                        the new disclosure requirements expand
                                                  be avoided simply by labeling any                       respiratory or pulmonary condition.                   the amount of medical evidence a party
                                                  medical report a ‘‘draft.’’ Any party                   These two limitations serve to                        may offer beyond that currently allowed
                                                  could solicit additional medical                        substantially narrow and define the                   under § 725.414. The Department agrees


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                                                  24474               Federal Register / Vol. 81, No. 80 / Tuesday, April 26, 2016 / Rules and Regulations

                                                  with this comment and has added a new                   representative actually receives any                  20 CFR 725.414 Development of
                                                  paragraph (d) to § 725.413 to clarify that              medical information generated before                  Evidence
                                                  disclosed medical information is not                    they entered the case—for instance,                      (a)(1) The Department proposed
                                                  considered evidence in the claim.                       from a claimant who gives his or her                  revising § 725.414, which imposes
                                                  Section 725.413’s disclosure                            new attorney all of the paperwork they                limitations on the quantity of medical
                                                  requirements essentially replace                        have related to the claim—the                         evidence each party may submit in a
                                                  traditional discovery tools. Like                       representative then has a duty to ensure              black lung claim. 20 CFR 725.414.
                                                  information gained through traditional                  that the medical information is                       Sections 725.414(a)(2) and (a)(3) allow
                                                  discovery, medical information                          exchanged with the other parties within               each party to submit ‘‘no more than two
                                                  exchanged under § 725.413 does not                      thirty days in accordance with                        medical reports’’ in support of its
                                                  automatically become a part of the                      § 725.413(b).                                         affirmative case. 20 CFR 725.414(a)(2)–
                                                  record on which the claim’s                                                                                   (3). The current rule defines a ‘‘medical
                                                                                                             (j) Several commenters contend that
                                                  adjudication is based. Instead, only                                                                          report’’ as a ‘‘written assessment of the
                                                  those pieces of medical information a                   the rule denies due process to
                                                                                                          sanctioned parties because the                        miner’s respiratory or pulmonary
                                                  party chooses to submit to the
                                                                                                          regulation authorizes no form of review               condition’’ that ‘‘may be prepared by a
                                                  adjudicator as evidence are subject to
                                                                                                          for a wrongful sanctions ruling. These                physician who examined the miner and/
                                                  § 725.414’s evidence-limiting rules.
                                                     (h) On a related note, one commenter                 commenters believe that a sanctions                   or reviewed the available admissible
                                                  states that because district directors                  ruling cannot be reviewed along with                  evidence.’’ 20 CFR 725.414(a)(1).
                                                                                                          the merits of a claim because the ruling                 This definition of ‘‘medical report’’ at
                                                  serve a dual role as a party (entitled to
                                                                                                          cannot be reversed. While the                         times created confusion over whether
                                                  receive disclosed medical information
                                                                                                          Department believes that normal claim                 supplemental reports offered by a
                                                  under this rule) and an adjudicator, they
                                                                                                          procedures are sufficient to protect the              physician whose initial opinion had
                                                  could be confused about which pieces
                                                                                                          rights of sanctioned individuals, it has              already been entered into evidence
                                                  of exchanged medical information
                                                  should be considered as evidence in the                 clarified the review procedure by                     counted against the parties’ two-report
                                                  claim. This commenter suggests that the                 adding a new paragraph (e)(4) to the                  limit. 80 FR 23747. Parties obtain
                                                  rule be revised to require private parties              final rule. Under this provision, a                   supplemental reports when they ask a
                                                  to disclose evidence to the Director only               sanction imposed by a district director               physician to update his or her initial
                                                  after a hearing has been requested. The                 is subject to de novo review by an                    report by reviewing additional material,
                                                  Department disagrees with the                           administrative law judge. The                         such as medical testing results or other
                                                  suggested approach. District directors                  Department has adopted this approach                  physicians’ opinions. To eliminate this
                                                  are skilled adjudicators who routinely                  because several of the listed sanctions—              confusion, the Department proposed
                                                  sort through admissible and non-                        such as drawing an adverse inference                  revising the definition of a ‘‘medical
                                                  admissible pieces of medical                            against the non-disclosing party or                   report’’ to codify the Director’s
                                                  information in issuing proposed                         limiting a non-disclosing party’s claims,             longstanding position that a physician’s
                                                  decisions and orders. For example,                      defenses, or right to introduce                       supplemental report is ‘‘merely a
                                                  when parties submit more evidence                       evidence—are closely tied to the                      continuation of the physician’s original
                                                  than allowed under the § 725.414                        adjudication of a claim’s merits. By                  medical report for purposes of the
                                                  evidence-limiting rules (a not infrequent               statute, the administrative law judge has             evidence-limiting rules and do[es] not
                                                  occurrence), district directors must                    the ‘‘authority to hear and determine all             count against the party as a second
                                                  eliminate from consideration the                        questions in respect of [a] claim.’’ 33               medical report.’’ 80 FR 23747. The
                                                  evidence exceeding the limits when                                                                            Department noted that the proposed
                                                                                                          U.S.C. 919(a), as incorporated by 30
                                                  adjudicating the claim’s merits. In                                                                           definition was consistent with the
                                                                                                          U.S.C. 932(a). These questions would
                                                  addition, removing the district director                                                                      regulatory provision allowing
                                                                                                          include whether the party had ‘‘good
                                                  from early disclosures would hamper                                                                           physicians to review (either in a written
                                                                                                          cause’’ for not making the required
                                                  their ability to administer the rule. The                                                                     report or oral testimony) the other
                                                                                                          disclosure and the appropriateness of
                                                  Department will ensure that district                                                                          admissible evidence, and a cost-
                                                                                                          the sanction chosen. Any administrative
                                                  directors and their staffs receive training                                                                   effective means of providing medical-
                                                                                                          law judge’s order resulting in a final
                                                  on the appropriate disposition and use                                                                        opinion evidence given the practical
                                                                                                          disposition of the claim would be
                                                  of material disclosed under the rule.                                                                         realities of black lung claims litigation.
                                                                                                          subject to immediate appeal to the
                                                     (i) Several commenters ask that                                                                            80 FR 23747–48.
                                                                                                          Benefits Review Board, followed by                       (2) Three commenters support the
                                                  attorneys (and presumably non-attorney                  appeal to an appropriate court of
                                                  representatives as well) be exempt from                                                                       proposed rule as written. Four other
                                                                                                          appeals. 33 U.S.C. 921(a), (c), as                    commenters state general support for
                                                  liability for a client’s failure to disclose
                                                                                                          incorporated by 30 U.S.C. 932(a). And                 the rule, but question how a physician’s
                                                  medical information received by a party
                                                                                                          in the absence of a final claim                       supplemental medical report would be
                                                  prior to the attorney’s hiring. The
                                                                                                          disposition, a sanctioned party could                 treated in a modification proceeding.
                                                  Department concurs with this comment
                                                  but does not believe a change in the                    choose to immediately appeal an order                 See generally 20 CFR 725.310.
                                                  proposed rule is necessary. Section                     imposing sanctions to the Board, whose                Specifically, these commenters express
                                                  725.413(b) links the duty to exchange                   precedent allows it to accept such                    concern over allowing physicians who
                                                  medical information to its ‘‘receipt.’’ An              interlocutory appeals merely to direct                submitted reports in the initial
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                                                  attorney or representative new to the                   the course of the adjudicatory process.               proceeding to submit supplemental
                                                  case cannot be held responsible for the                 See Niazy v. Capital Hilton Hotel, 19                 reports on modification without those
                                                  party’s (or the party’s prior                           BRBS 266, 269 (1987).                                 reports being counted against the party’s
                                                  representative’s) failure to timely                        (k) No other significant comments                  evidentiary limits. The commenters
                                                  exchange the information because the                    were received concerning this section,                believe this practice could lead to the
                                                  new representative was not in ‘‘receipt’’               and the Department has promulgated                    development of limitless evidence,
                                                  of the medical evidence prior to their                  the remainder of the regulation as                    thwarting the purpose of the evidence-
                                                  entry into the case. But once the new                   proposed.                                             limiting rules.


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                                                                      Federal Register / Vol. 81, No. 80 / Tuesday, April 26, 2016 / Rules and Regulations                                          24475

                                                     (3) The Department does not believe                  miner’s condition. As explained, that                 The latter commenters agree that the
                                                  this comment warrants a change in the                   total remains at a maximum of three for               Director should be able to defend
                                                  proposed rule. In a modification                        each party in a modification proceeding.              unmeritorious claims in these
                                                  proceeding, the regulations allow each                  And development of supplemental                       circumstances, but only if the district
                                                  party to submit one additional medical                  reports in an undisciplined or                        director initially denied the claim. In
                                                  report in support of its affirmative case.              unreasonable way is naturally                         cases initially awarded by the district
                                                  20 CFR 725.310(b). This provision                       constrained by other regulations. For                 director, the commenters express
                                                  supplements the limitations contained                   example, physicians may review only                   concern that the Director may use
                                                  in § 725.414(a); thus, during                           admissible evidence, 20 CFR                           medical evidence previously developed
                                                  modification, a party may submit up to                  725.414(a)(1), and the amount of                      by the no-longer-defending operator.
                                                  the two medical reports allowed under                   admissible evidence overall is limited.               They believe this would be improper for
                                                  § 725.414(a), if they were not submitted                See 20 CFR 725.414(a)(2)–(3). The                     two reasons: (1) The Director would be
                                                  during the original claim proceedings,                  limited number of test results, such as               impeaching his own witness (i.e., the
                                                  plus one additional medical report, for                 chest X-ray reports and pulmonary                     physician who performed the
                                                  a total of three. Rose v. Buffalo Mining                function tests, each party may submit                 Department-sponsored medical
                                                  Co., 23 Black Lung Rep. 1–221, 1–226–                   restricts the number of supplemental                  evaluation and whose opinion most
                                                  28 (Ben. Rev. Bd. 2007).                                reports necessary to review and                       likely supported the initial benefits
                                                     Considering a physician’s                            comment on those tests.                               award) with operator-generated
                                                  supplemental report as an extension of                     (b)(1) The Department proposed a                   evidence, and challenging the award at
                                                  his or her original report is consistent                separate revision to § 725.414(a)(3)(iii).            a later stage would call into question the
                                                  with the Department’s longstanding                      Currently, this provision authorizes the              district director’s role as a neutral
                                                  position that modification proceedings                  Director to exercise the rights of a                  adjudicator; and (2) medical opinions
                                                  are a continuation of the initial claim.                responsible operator for the purposes of              generated by operators virtually always
                                                  See Betty B Coal Co. v. Dir., OWCP, 194                 the evidence limitations only if: (1) The             express views contrary to the BLBA, the
                                                  F.3d 491, 498 (4th Cir. 1999). Moreover,                district director has not identified a                implementing regulations, and science.
                                                  this conclusion logically flows from a                  potentially liable operator; or (2) all               The commenters further allege, without
                                                  party’s right to submit evidence not                    potentially liable operators have been                examples, that whether the district
                                                  submitted during the initial claim                      dismissed. The Department proposed                    director initially awards or denies the
                                                  proceedings to the extent allowed under                 adding a third provision that would                   claim, a conflict of interest arises should
                                                  § 725.414(a). Rose, 23 BLR at 1–227–28.                 allow the Director to submit medical                  the Director later decide to defend a
                                                  Because a supplemental report could                     evidence, up to the limits allowed a                  claim because earlier routine
                                                  have been submitted during the initial                  responsible operator under the                        communications between the claimant
                                                  proceedings without counting against                    evidence-limiting rules, when the                     and the district director could be used
                                                  the party, it is reasonable to allow the                identified responsible operator stops                 against the claimant. For the reasons
                                                  same accommodation during                               defending a claim during the course of                that follow, the Department does not
                                                  modification.                                           litigation because of adverse financial               believe any changes should be made in
                                                     Finally, the regulations provide that a              developments, such as bankruptcy or                   the proposed rule based on these
                                                  physician who submits a report during                   insolvency. 80 FR 23753.                              comments.
                                                  the initial proceedings could testify at                   The Department proposed this change
                                                  hearing or by deposition during                         because the current rule does not                        First, the Director is not obligated to
                                                  modification proceedings, without it                    adequately protect the Trust Fund                     continue to advocate for an award of
                                                  counting against the party for purposes                 against unmeritorious claims in these                 benefits once that award has been
                                                  of the evidence-limiting rules. See 20                  circumstances. 80 FR 23748. Where an                  proven by later evidence or an
                                                  CFR 725.414(c) (‘‘A physician who                       identified responsible operator ceases to             intervening adjudication to be incorrect.
                                                  prepared a medical report admitted                      defend a claim in litigation due to                   Hardisty v. Dir., OWCP, 776 F.2d 129,
                                                  under this section may testify with                     adverse financial developments, the                   130 (7th Cir. 1985) (Director not bound
                                                  respect to the claim at any formal                      current rule limits the Director’s                    by initial award of benefits in later
                                                  hearing conducted in accordance with                    submissions to only the complete                      proceedings after liability transferred
                                                  subpart F of this part, or by                           pulmonary evaluation that the                         from the responsible operator to the
                                                  deposition.’’). A testifying physician                  Department gives to every miner as an                 Trust Fund); Pavesi v. Dir., OWCP, 758
                                                  may address any admissible medical                      opportunity to substantiate his or her                F.2d 956, 960 (3d Cir. 1985) (Director
                                                  evidence submitted in the claim. See 20                 claim. See generally 30 U.S.C. 923(b); 20             has obligation to protect Trust Fund and
                                                  CFR 725.457(d); 725.458. Thus, it makes                 CFR 725.406, 725.414(a). This is true                 is not bound by district director’s initial
                                                  little sense not to allow supplemental                  even though the Trust Fund may                        award of benefits). See also Cornett v.
                                                  reports if a party could achieve the same               ultimately be liable for any benefits                 Benham Coal, Inc., 227 F.3d 569, 573
                                                  result by having its physician testify                  awarded. The proposed rule would give                 n.2 (6th Cir. 2000) (in litigation of claim,
                                                  during modification proceedings. See 80                 the Director the same rights to defend                Director may take a position contrary to
                                                  FR 23748. Allowing submission of a                      against a claim as if there were no                   district director’s initial finding that
                                                  written report is also consistent with the              responsible operator in the case. This                claim should be denied). This approach
                                                  nature of black lung proceedings, where                 means that in a miner’s claim, the                    makes sense both because the Director
                                                  such reports are freely admissible.                     Director could submit as part of his                  has a fiduciary duty to protect the Trust
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                                                     The commenters’ claim that this                      affirmative case one medical opinion                  Fund against unmeritorious claims, see,
                                                  interpretation would result in limitless                and set of testing in addition to the                 e.g., Dir., OWCP v. Hileman, 897 F.2d
                                                  evidentiary development is overstated.                  complete pulmonary examination                        1277, 1281 n.2 (4th Cir. 1990), and later
                                                  Allowing supplemental reports from                      afforded every miner who applies for                  contrary evidence could prove more
                                                  physicians whose opinions were                          benefits. See 20 CFR 725.414(a)(3)(iii).              probative. For example, a district
                                                  admitted in the initial claim proceeding                   (2) Two commenters support the rule                director could award benefits based on
                                                  does not increase the number of                         as proposed. Several other commenters                 X-ray evidence of complicated
                                                  physicians who may evaluate the                         state that the rule needs clarification.              pneumoconiosis (also known as


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                                                  24476               Federal Register / Vol. 81, No. 80 / Tuesday, April 26, 2016 / Rules and Regulations

                                                  progressive massive fibrosis) when a                    the BLBA, the regulations and                         continuing benefits. Requiring
                                                  later autopsy report affirmatively                      supporting preambles. This is the same                certification from a bankrupt or
                                                  demonstrates that the miner did not                     process the Director engages in now                   insolvent operator would place too high
                                                  have that form of the disease. The                      when an operator ceases to exist and                  an administrative burden on the
                                                  reverse could also occur (i.e., the district            liability for a claim in litigation is                Department. In some instances, locating
                                                  director denied the claim and an                        transferred to the Trust Fund.                        a person who could act on the defunct
                                                  autopsy shows the miner suffered from                      Third, the allegation that routine                 operator’s behalf may be impossible.
                                                  complicated pneumoconiosis),                            information exchanged between the                     And, even assuming the operator
                                                  compelling the Director to argue for an                 district director and the claimant could              continues to exist in some form, an
                                                  award of benefits. Neither scenario calls               later be used to defeat the claim is                  operator lacking financial capacity to
                                                  into question the district director’s                   unfounded. By statute, the Department                 pay benefits has little incentive to
                                                  neutrality in adjudicating the claim                    wears two hats in black lung cases, with              respond to a certification request. The
                                                  based on the evidence before him or her.                district directors conducting initial                 rule, and the protection it affords the
                                                     Second, the commenters’ fear that the                adjudications and the Secretary,                      Trust Fund, would be rendered useless
                                                  Director would rely on operator-                        represented by the Director,                          if an operator either failed or simply
                                                  generated medical opinions that are                     participating as a party-in-interest in all           refused to supply any required
                                                  contrary to the BLBA, the regulations or                later proceedings. See generally 33                   certification.
                                                  science overlooks the Director’s                        U.S.C. 919, as incorporated by 30 U.S.C.                 (c) No other significant comments
                                                  longstanding, consistent history arguing                932(a) (providing for district director               were received concerning this section,
                                                  for rejection of these problematic                      determinations) and 30 U.S.C. 932(k)                  and the Department has promulgated
                                                  medical opinions. See, e.g., Harman                     (making the Secretary a party in all                  § 725.414 as proposed.
                                                  Mining Co. v. Dir., OWCP, 678 F.3d 305,                 cases). The district director receives
                                                  314–16 (4th Cir. 2012) (endorsing the                   claim filings, gathers factual information            20 CFR 725.601    Enforcement
                                                  Director’s argument that a physician’s                  about the miner’s employment history                  Generally
                                                  opinion was permissibly considered less                 and dependents, and, in claims filed by                  (a) Currently, § 725.601(b) refers to
                                                  persuasive when the physician’s views                   a miner, arranges for a complete                      ‘‘payments in addition to
                                                  conflicted with the Department’s                        pulmonary examination. Based on this                  compensation’’ and cross references
                                                  rationale for amending the regulations);                information and any evidence submitted                § 725.607. The proposed rule replaced
                                                  Sea ‘‘B’’ Mining Co. v. Dunford, 188 F.                 by the parties, the district director                 this phrase with ‘‘payments of
                                                  App’x 191, 199 (4th Cir. 2006) (agreeing                proposes an initial entitlement decision.
                                                                                                                                                                additional compensation.’’ 80 FR 23753.
                                                  with the Director that operator’s                       Findings made by the district director
                                                                                                                                                                The Department intended this to be a
                                                  physician’s opinion was based on two                    are not binding on an administrative
                                                                                                                                                                technical change, unifying this language
                                                  premises that are hostile to the Act and                law judge, who conducts an
                                                                                                                                                                with a simultaneously proposed change
                                                  thus appropriately discredited); Hunt v.                independent de novo review of the
                                                                                                                                                                to § 725.607. 80 FR 23748.
                                                  Kentland Elkhorn Coal Corp., 159 F.                     claim. See 20 CFR 725.455(a) (In
                                                  App’x 659, 661–62 (6th Cir. 2005) (the                  general, ‘‘any findings or determinations                (b) One commenter objected,
                                                  Director argued that operator’s                         made with respect to a claim by a                     contending that the wording change is
                                                  physicians’ opinions must be rejected                   district director shall not be considered             substantive and would impose
                                                  because both were based on premises                     by the administrative law judge’’).                   unauthorized penalties on operators.
                                                  inconsistent with the Act); Penn                           Given the de novo nature of the                    The Department disagrees with this
                                                  Allegheny Coal Co. v. Mercatell, 878                    administrative law judge’s adjudication,              comment. The change to this rule is
                                                  F.2d 106, 109–10 (3d Cir. 1989)                         it is difficult to see how                            technical in nature and, as stated in the
                                                  (agreeing with the Director that the ALJ                communications between the district                   NPRM, no substantive change is
                                                  reasonably discredited physician’s                      director and the claimant could                       intended. Id. For this reason, as well as
                                                  opinion based on premises                               adversely impact the claimant. More                   the reasons set forth in the discussion
                                                  ‘‘fundamentally at odds with the                        importantly, for more than three                      under § 725.607, the Department is
                                                  statutory and regulatory scheme’’);                     decades the Director has defended                     promulgating this rule as proposed.
                                                  Black Diamond Coal Mining Co. v.                        proposed district director denials of                 20 CFR 725.607 Payments in Addition
                                                  Benefits Review Board, 758 F.2d 1532                    benefits in claims for which the Trust                to Compensation
                                                  (11th Cir. 1985) (Director supported ALJ                Fund bears direct liability. See 26 U.S.C.
                                                  discounting testimony of a doctor as                    9501(d)(1)(B) (amounts in Trust Fund                     (a) Section 725.607 implements
                                                  inconsistent with the Act when that                     available to pay benefits when there is               section 14(f) of the Longshore Act, an
                                                  physician stated that he would not                      no liable operator). In these claims, the             incorporated provision. 33 U.S.C. 914(f),
                                                  diagnose pneumoconiosis in the                          district director conducted an initial                as incorporated by 30 U.S.C. 932(a).
                                                  absence of positive x-rays); Kaiser Steel               adjudication and the Director routinely               Section 14(f) generally provides that
                                                  Corp. v. Dir., OWCP, 748 F.2d 1426                      participated in further proceedings,                  claimants are entitled to receive from a
                                                  (10th Cir. 1984) (Director argued that the              advocating for a denial of benefits                   liable coal mine operator 20 percent of
                                                  ALJ had properly discredited as                         unless the evidence demonstrated that                 any compensation owed under the
                                                  contrary to the findings and purposes of                the claimant was entitled to benefits. To             terms of an award that is not paid
                                                  the Act the opinion of a physician who                  the Department’s knowledge, the                       within ten days of the date payment is
                                                  stated coal workers’ pneumoconiosis                     Director has not used communications                  due. By regulation, payment is due ‘‘on
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                                                  was never impairing).                                   made between the claimant and the                     the fifteenth day of the month following
                                                     The Director does not intend to alter                district director in a manner adverse to              the month for which the benefits are
                                                  this policy. In each case—whether the                   the claimant. And the commenters have                 payable.’’ 20 CFR 725.502(b)(1); see also
                                                  claim was awarded or denied by the                      pointed to no such instances.                         20 CFR 725.502(a). The operator is
                                                  district director—the Director will                        Finally, the Department disagrees                  liable for the 20 percent amount even if
                                                  evaluate any medical opinion evidence                   with one commenter’s suggestion that                  the Trust Fund pays ongoing benefits to
                                                  developed by the defunct operator and                   operators be required to certify the                  the claimant on an interim basis. 20 CFR
                                                  reject any evidence inconsistent with                   reason for their inability to pay                     725.607(b).


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                                                                      Federal Register / Vol. 81, No. 80 / Tuesday, April 26, 2016 / Rules and Regulations                                       24477

                                                     The Department proposed revising                     notwithstanding any other provisions of                 Total Estimated Annual Time Burden:
                                                  both the title of § 725.607 and the text                law, no person may generally be subject               679 hours.
                                                  of paragraph (c) by replacing the phrase                to penalty for failing to comply with a                 Total Estimated Annual Other Costs
                                                  ‘‘payments in addition to                               collection of information that does not               Burden: $6,681.
                                                  compensation’’ with the phrase                          display a valid Control Number. See 5
                                                  ‘‘payments of additional                                CFR 1320.5(a) and 1320.6.                             V. Executive Orders 12866 and 13563
                                                  compensation.’’ 80 FR 23853–54. As                         In the NPRM, the Department noted                  (Regulatory Planning and Review)
                                                  explained in the NPRM, 80 FR 23748–                     that proposed § 725.413, which, as                       Executive Orders 12866 and 13563
                                                  49, section 725.607(b) uses the phrase                  discussed above, requires parties to                  direct agencies to assess all costs and
                                                  ‘‘additional compensation,’’ and                        exchange certain medical information,                 benefits of available regulatory
                                                  conforming the title and paragraph (c) to               could be considered a collection of                   alternatives and, if regulation is
                                                  that language adds clarity to the                       information within the meaning of the                 necessary, to select regulatory
                                                  regulation and ‘‘eliminate[s] any                       PRA. 80 FR 23749. Accordingly, the                    approaches that maximize net benefits
                                                  possibility that the regulation’s phrasing              Department submitted an Information                   (including potential economic,
                                                  could confuse readers.’’ 80 FR 23749;                   Collection Request (ICR) to OMB for                   environmental, public health and safety
                                                  see also 20 CFR 725.530(a) (cross-                      approval. See ICR Reference Number                    effects, distributive impacts, and
                                                  referencing § 725.607 and describing                    201504–1240–002. The NPRM                             equity). Executive Order 13563
                                                  potential operator liabilities as                       specifically invited comments regarding               emphasizes the importance of
                                                  including ‘‘additional compensation’’).                 the information collection and notified               quantifying both costs and benefits, of
                                                  The phrase ‘‘additional compensation’’                  the public of their opportunity to file               reducing costs, of harmonizing rules,
                                                  reflects the Director’s view, as well as                such comments with both OMB and the                   and of promoting flexibility. The
                                                  the view of the majority of courts that                 Department. 80 FR 23749. On July 24,                  Department has considered the final
                                                  have considered the issue, that                         2015, OMB concluded its review of the                 rule with these principles in mind and
                                                  payments made under Longshore Act                       ICR by asking the Department to submit                has determined that the regulated
                                                  section 14(f) are compensation rather                   another ICR at the final rule stage and               community will benefit from these new
                                                  than penalties. 80 FR 23748.                            after considering any public comments                 and revised regulations.
                                                     (b) Four commenters contend that the                 regarding the information collection                     The Department addressed these
                                                  proposed revisions to the title and                     requirements in the rule.                             issues in the NPRM. 80 FR 23749–50.
                                                  paragraph (c) impose new and                               The Department received comments                   With regard to § 725.310(e), which
                                                  unauthorized penalties on operators.                    on the substance of proposed § 725.413;               requires operators to pay effective
                                                  Although these commenters concede                       these comments are fully addressed in                 awards of benefits while seeking to
                                                  that section 14(f) is incorporated into                 the Section-by-Section Explanation                    modify them, the Department stated that
                                                  the BLBA, they challenge application of                 above. The Department received no                     the proposed rule was ‘‘cost neutral’’
                                                  the provision to the BLBA program.                      comments about the information
                                                     Using the phrase ‘‘additional                                                                              because it merely enforced operators’
                                                                                                          collection burdens. The Department has                existing legal obligations under the Act.
                                                  compensation’’ consistently throughout                  submitted an ICR to OMB for the
                                                  the regulations does not impose any                                                                           80 FR 23749. The Department also
                                                                                                          information collection in this final rule.            noted that even if § 725.310(e) were
                                                  new or unauthorized penalties on                        See ICR Reference Number 201511–
                                                  operators. The Department has had a                                                                           construed as imposing a new obligation,
                                                                                                          1240–003. A copy of this request                      any additional costs would not be
                                                  regulation interpreting and applying                    (including supporting documentation)
                                                  section 14(f)’s 20 percent additional                                                                         burdensome because operators must
                                                                                                          may be obtained free of charge from the               reimburse the Trust Fund (with interest)
                                                  compensation provision to unpaid black                  Reginfo.gov Web site at http://www.
                                                  lung benefits since 1978. See 43 FR                                                                           when unsuccessful on modification,
                                                                                                          reginfo.gov/public/do/PRAViewICR?ref_                 operators are not often successful on
                                                  36814–15 (Aug. 18, 1978). Clarifying the                nbr=201511-1240-003, or by contacting
                                                  language neither adds a new provision                                                                         modification, and if successful,
                                                                                                          Michael Chance, Director, Division of                 operators may seek reimbursement from
                                                  nor alters the character of the 20 percent              Coal Mine Workers’ Compensation,
                                                  additional compensation payment to a                                                                          the claimant for at least some of the
                                                                                                          Office of Workers’ Compensation                       benefits paid. 80 FR 23750. Apart from
                                                  penalty. The Department is therefore                    Programs, U.S. Department of Labor,
                                                  promulgating the rule as proposed.                                                                            the potential monetary impact, the
                                                                                                          200 Constitution Avenue NW., Suite N–                 Department determined that
                                                  IV. Information Collection                              3464, Washington, DC 20210.                           § 725.310(e) struck an appropriate
                                                  Requirements (Subject to the                            Telephone: (202) 693–0978 (this is not                balance between claimants, who are
                                                  Paperwork Reduction Act) Imposed                        a toll-free number). TTY/TDD callers                  made whole under the rule, and
                                                  Under the Proposed Rule                                 may dial toll-free 1–800–877–8339.                    operators, who may seek a stay of
                                                    The Paperwork Reduction Act of 1995                   OMB is currently reviewing the ICR.                   payments if they would be irreparably
                                                  (PRA), 44 U.S.C. 3501 et seq., and its                  The Department will publish a notice in               harmed by making them. 80 FR 23750.
                                                  implementing regulations, 5 CFR part                    the Federal Register when OMB                            The Department similarly concluded
                                                  1320, require that the Department                       concludes its review of the ICR.                      that the benefits of § 725.413, which
                                                                                                             The information collection and its
                                                  consider the impact of paperwork and                                                                          requires the parties to exchange all
                                                                                                          burdens are summarized as follows:
                                                  other information collection burdens                       Agency: DOL–OWCP.                                  medical information they develop in
                                                  imposed on the public. A Federal                           Title of Collection: Disclosure of                 connection with a claim, far outweighed
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                                                  agency generally cannot conduct or                      Medical Information.                                  any minimal administrative burden the
                                                  sponsor a collection of information, and                   OMB Control Number: 1240–0054.                     rule might place on parties. 80 FR
                                                  the public is generally not required to                    Affected Public: Private Sector:                   23750. These benefits include protecting
                                                  respond to an information collection,                   Businesses and other for-profits.                     miners’ health and reaching more
                                                  unless it is approved by the Office of                     Total Estimated Number of                          accurate claims determinations. The
                                                  Management and Budget (OMB) under                       Respondents: 4,074.                                   Department also noted that the rule may
                                                  the PRA and displays a currently valid                     Total Estimated Number of                          not have broad impact because parties
                                                  OMB Control Number. In addition,                        Responses: 4,074.                                     often already exchanged all of the


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                                                  24478               Federal Register / Vol. 81, No. 80 / Tuesday, April 26, 2016 / Rules and Regulations

                                                  medical information in their possession.                compliance, this showing will not be                  in lieu of preparing the analysis. 5
                                                  Id.                                                     difficult. This minimal burden does not               U.S.C. 605(b).
                                                     The Department has considered the                    outweigh the Department’s duty to                        In the NPRM, the Department
                                                  final rule with these principles in mind                ensure that claimants receive all                     determined that a complete regulatory
                                                  and has determined that the regulated                   benefits when due and to protect the                  flexibility analysis was not necessary,
                                                  community will benefit from these new                   Trust Fund’s assets.                                  set forth the factual basis for this
                                                  and revised regulations. One comment,                     Similarly, the benefits associated with             conclusion, and certified that the
                                                  in which four entities joined, generally                § 725.413 far outweigh any additional                 revised rule would not have a
                                                  criticized the Department for not                       minimal burden the regulation will                    significant economic impact on a
                                                  demonstrating why these rule revisions                  impose on the parties. For the reasons                substantial number of small entities. 80
                                                  were necessary. The comment states                      explained above (see Section III, supra),             FR 23750. The Department provided a
                                                  that the Department provided no                         the Department cannot quantify the                    copy of that certification to the Chief
                                                  empirical data to support them and                      actual impact of non-disclosure of                    Counsel for Advocacy of the Small
                                                  instead cited only unrepresentative                     medical information on miners’ health                 Business Administration, see 5 U.S.C.
                                                  anecdotes documenting mostly non-                       with any certainty. But the rule is fully             605(b), and invited public comment on
                                                  existent problems that do not accurately                consistent with the Mine Safety and                   the certification.
                                                  characterize how black lung claims are                  Health Act’s prime directive: To protect                 The Chief Counsel for Advocacy has
                                                  handled. The comment also alludes                       the health and safety of the miner.                   not filed comments on the certification.
                                                  generally to significant expenses                       Section 725.413 also affords                          Moreover, no public comments address
                                                  imposed on coal mine operators and                      unrepresented claimants an even                       any adverse economic impacts this rule
                                                  their insurers by the Department but                    playing field when litigating their                   will have on small coal mine operators.
                                                  provides no specific information                        claims and increases the possibility of               Because the comments do not provide a
                                                  regarding how these rules in particular                 more accurate entitlement                             basis for departing from its prior
                                                  impose increased costs. In addition to                  determinations. Balanced against these                conclusion, the Department again
                                                  these general allegations, this comment                 important interests is the minimal                    certifies that this rule will not have a
                                                  states that the Department did not                      administrative burden of exchanging all               significant economic impact on a
                                                  conduct an empirical review of the                      medical information a party develops                  substantial number of small entities.
                                                  impact of § 725.310 and did not                         about the miner with the other parties,               Thus, no regulatory flexibility analysis
                                                  adequately consider the actual impact                   a practice several objecting commenters               is required.
                                                  § 725.413 would have on miners’ health.                 state the parties have routinely followed
                                                     The Department does not believe this                                                                       VII. Unfunded Mandates Reform Act of
                                                                                                          in all but a few instances. Thus, to the              1995
                                                  comment compels a different
                                                                                                          extent § 725.413 mandates such
                                                  conclusion regarding the benefits of this                                                                        Title II of the Unfunded Mandates
                                                                                                          practice, the impact on the parties
                                                  rulemaking. The Department has                                                                                Reform Act of 1995, 2 U.S.C. 1531 et
                                                  administered the black lung program for                 should be very small.
                                                                                                                                                                seq., directs agencies to assess the
                                                  more than three decades and been a                        Finally, one comment stated that                    effects of Federal Regulatory Actions on
                                                  party in hundreds of thousands of                       several parts of the proposed rules                   State, local, and tribal governments, and
                                                  claims. As a result, the Department is                  violated the various directions in                    the private sector, ‘‘other than to the
                                                  intimately familiar with how black lung                 Executive Orders 12866 and 13563 that                 extent that such regulations incorporate
                                                  claims are litigated by all parties. To                 rules be clear and written in plain                   requirements specifically set forth in
                                                  further illustrate that §§ 725.310(e) and               language. The Department has                          law.’’ 2 U.S.C. 1531. For purposes of the
                                                  725.413 respond to non-illusory                         responded to these comments in                        Unfunded Mandates Reform Act, this
                                                  problems, the Department has added                      discussing the substance of each rule in              rule does not include any Federal
                                                  additional representative case examples                 the Section-by-Section Explanation                    mandate that may result in increased
                                                  in the Section-by-Section Explanation                   above.                                                expenditures by State, local, tribal
                                                  above (see Section III, supra). While                     This rule is a significant regulatory               governments, or increased expenditures
                                                  these modification and discovery issues                 action under section 3(f)(4) of Executive             by the private sector of more than
                                                  do not arise in every case, they arise                  Order 12866 and has been reviewed by                  $100,000,000.
                                                  frequently enough—and can have                          the Office of Information and Regulatory
                                                  sufficiently important consequences                     Affairs in the Office of Management and               VIII. Executive Order 13132
                                                  when they do arise—that resolution by                   Budget.                                               (Federalism)
                                                  regulatory action is appropriate.                       VI. Regulatory Flexibility Act and                       The Department has reviewed this
                                                     On the more specific comments,                                                                             rule in accordance with Executive Order
                                                                                                          Executive Order 13272 (Proper
                                                  § 725.310(e), as discussed above (see                                                                         13132 regarding federalism, and has
                                                                                                          Consideration of Small Entities in
                                                  Section III, supra), enforces an existing                                                                     determined that it does not have
                                                                                                          Agency Rulemaking)
                                                  legal obligation imposed on operators by                                                                      ‘‘federalism implications.’’ Executive
                                                  the statute and implementing                               The Regulatory Flexibility Act of                  Order 13132, 64 FR 43255, Aug. 4, 1999.
                                                  regulations. Absent a stay of payments                  1980, as amended, 5 U.S.C. 601 et seq.                The rule will not ‘‘have substantial
                                                  ordered by the Benefits Review Board or                 (RFA), requires an agency to evaluate                 direct effects on the States, on the
                                                  a court, operators are obligated to pay                 the potential impacts of their proposed               relationship between the national
                                                  effective benefits awards, regardless of                and final rules on small businesses,                  government and the States, or on the
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                                                  any other proceedings in the claim. The                 small organizations, and small                        distribution of power and
                                                  statute and regulations already mandate                 governmental jurisdictions and to                     responsibilities among the various
                                                  that any associated economic burden be                  prepare a ‘‘regulatory flexibility                    levels of government.’’ Id.
                                                  borne by operators rather than the Trust                analysis’’ describing those impacts. But
                                                  Fund. The only new burden the rule                      if the rule is not expected to have ‘‘a               IX. Executive Order 12988 (Civil Justice
                                                  places on operators is to demonstrate                   significant economic impact on a                      Reform)
                                                  that they have complied with the                        substantial number of small entities,’’                 This rule was drafted and reviewed in
                                                  relevant orders. For operators that are in              the RFA allows the agency to so certify               accordance with Executive Order 12988,


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                                                                      Federal Register / Vol. 81, No. 80 / Tuesday, April 26, 2016 / Rules and Regulations                                         24479

                                                  Civil Justice Reform, and it will not                   with such rebuttal evidence and                       award which has become final and is
                                                  unduly burden the Federal court                         additional statements as are authorized               thereafter terminated following the
                                                  system. The final rule was: (1) Carefully               by paragraphs (a)(2)(ii) and (a)(3)(ii) of            initiation of modification by the district
                                                  reviewed to eliminate drafting errors                   § 725.414. Modification proceedings                   director, no payment made prior to the
                                                  and ambiguities; (2) written to minimize                may not be initiated before an                        date upon which the district director
                                                  litigation; and (3) provides clear legal                administrative law judge or the Benefits              initiated modification proceedings
                                                  standards for affected conduct. The rule                Review Board.                                         under paragraph (a) will be subject to
                                                  also specifies when its provisions apply.                  (c) At the conclusion of modification              collection or offset under subpart H of
                                                                                                          proceedings before the district director,             this part.
                                                  X. Congressional Review Act                             the district director may issue a                        (e)(1) In this paragraph, an order is
                                                    The Congressional Review Act, 5                       proposed decision and order (§ 725.418)               ‘‘effective’’ as described in § 725.502(a)
                                                  U.S.C. 801 et seq., as added by the Small               or, if appropriate, deny the claim by                 and ‘‘final’’ as described in
                                                  Business Regulatory Enforcement                         reason of abandonment (§ 725.409). In                 §§ 725.419(d), 725.479(a) or 802.406.
                                                  Fairness Act of 1996, generally provides                any case in which the district director                  (2) Any modification request by an
                                                  that before a rule may take effect, the                 has initiated modification proceedings                operator must be denied unless the
                                                  agency promulgating the rule must                       on his own initiative to alter the terms              operator proves that at the time of the
                                                  submit a report, which includes a copy                  of an award or denial of benefits issued              request, the operator has:
                                                  of the rule, to each House of the                       by an administrative law judge, the                      (i) Paid to the claimant all monetary
                                                  Congress and to the Comptroller General                 district director must, at the conclusion             benefits, including retroactive benefits
                                                  of the United States. OWCP will report                  of modification proceedings, forward                  and interest under § 725.502(b)(2), due
                                                  this rule’s promulgation to the U.S.                    the claim for a hearing (§ 725.421). In               under any effective order;
                                                  Senate, the U.S. House of                               any case forwarded for a hearing, the                    (ii) Paid to the claimant all additional
                                                  Representatives, and the Comptroller                    administrative law judge assigned to                  compensation (see § 725.607) due under
                                                  General of the United States                            hear such case must consider whether                  an effective order;
                                                  simultaneously with publication of the                  any additional evidence submitted by                     (iii) Paid all medical benefits (see
                                                  rule in the Federal Register. The report                the parties demonstrates a change in                  § 725.701 et seq.) due under any
                                                  will state that the rule is not a ‘‘major               condition and, regardless of whether the              effective award, but only if the order
                                                  rule’’ as defined by 5 U.S.C. 804(2).                   parties have submitted new evidence,                  awards payment of specific medical
                                                                                                          whether the evidence of record                        expenses;
                                                  List of Subjects in 20 CFR Part 725                     demonstrates a mistake in a                              (iv) Paid all final orders awarding
                                                    Total disability due to                               determination of fact.                                attorney’s fees and expenses under
                                                  pneumoconiosis, Coal miners’                               (d) An order issued following the                  § 725.367 and witness fees under
                                                  entitlement to benefits, Survivors’                     conclusion of modification proceedings                § 725.459, but only if the underlying
                                                  entitlement to benefits.                                may terminate, continue, reinstate,                   benefits order is final (see § 725.367(b));
                                                    For the reasons set forth in the                      increase or decrease benefit payments or              and
                                                  preamble, the Department of Labor                       award benefits. Such order must not                      (v) Reimbursed the Black Lung
                                                  amends 20 CFR part 725 as follows:                      affect any benefits previously paid,                  Disability Trust Fund, with interest, for
                                                                                                          except that an order increasing the                   all benefits paid under the orders
                                                  PART 725—CLAIMS FOR BENEFITS                            amount of benefits payable based on a                 described in paragraphs (e)(2)(i) or (iii)
                                                  UNDER PART C OF TITLE IV OF THE                         finding of a mistake in a determination               of this section and the costs for the
                                                  FEDERAL MINE SAFETY AND HEALTH                          of fact may be made effective on the                  medical examination under § 725.406.
                                                  ACT, AS AMENDED                                         date from which benefits were                            (3) The requirements of paragraph
                                                                                                          determined payable by the terms of an                 (e)(2) of this section are inapplicable to
                                                  ■ 1. The authority citation for part 725                earlier award. In the case of an award                any benefits owed pursuant to an
                                                  continues to read as follows:                           which is decreased, no payment made                   effective but non-final order if the
                                                     Authority: 5 U.S.C. 301; Reorganization              in excess of the decreased rate prior to              payment of such benefits has been
                                                  Plan No. 6 of 1950, 15 FR 3174; 30 U.S.C. 901           the date upon which the party requested               stayed by the Benefits Review Board or
                                                  et seq., 902(f), 934, 936; 33 U.S.C. 901 et seq.;       reconsideration under paragraph (a) of                appropriate court under 33 U.S.C. 921.
                                                  42 U.S.C. 405; Secretary’s Order 10–2009, 74            this section will be subject to collection               (4) Except as provided by paragraph
                                                  FR 58834.                                               or offset under subpart H of this part,               (e)(5) of this section, the operator must
                                                  ■ 2. In § 725.310, revise paragraphs (b),               provided the claimant is without fault                submit all documentary evidence
                                                  (c) and (d) and add paragraph (e) to read               as defined by § 725.543. In the case of               pertaining to its compliance with the
                                                  as follows:                                             an award which is decreased following                 requirements of paragraph (e)(2) of this
                                                                                                          the initiation of modification by the                 section to the district director
                                                  § 725.310   Modification of awards and                  district director, no payment made in                 concurrently with its request for
                                                  denials.                                                excess of the decreased rate prior to the             modification. The claimant is also
                                                  *     *    *      *    *                                date upon which the district director                 entitled to submit any relevant evidence
                                                    (b) Modification proceedings must be                  initiated modification proceedings                    to the district director. Absent
                                                  conducted in accordance with the                        under paragraph (a) will be subject to                extraordinary circumstances, no
                                                  provisions of this part as appropriate,                 collection or offset under subpart H of               documentary evidence pertaining to the
                                                  except that the claimant and the                        this part, provided the claimant is                   operator’s compliance with the
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                                                  operator, or group of operators or the                  without fault as defined by § 725.543. In             requirements of paragraph (e)(2) at the
                                                  fund, as appropriate, are each entitled to              the case of an award which has become                 time of the modification request will be
                                                  submit no more than one additional                      final and is thereafter terminated, no                admitted into the hearing record or
                                                  chest X-ray interpretation, one                         payment made prior to the date upon                   otherwise considered at any later stage
                                                  additional pulmonary function test, one                 which the party requested                             of the proceeding.
                                                  additional arterial blood gas study, and                reconsideration under paragraph (a) will                 (5) The requirements imposed by
                                                  one additional medical report in                        be subject to collection or offset under              paragraph (e)(2) of this section are
                                                  support of its affirmative case along                   subpart H of this part. In the case of an             continuing in nature. If at any time


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                                                  24480               Federal Register / Vol. 81, No. 80 / Tuesday, April 26, 2016 / Rules and Regulations

                                                  during the modification proceedings the                 agent receives by sending a complete                  administrative law judge in accordance
                                                  operator fails to meet the payment                      copy of the information to all other                  with the provisions of this part.
                                                  obligations described, the adjudication                 parties in the claim within 30 days after                (f) This rule applies to—
                                                  officer must issue an order to show                     receipt. If the information is received                  (1) All claims filed after May 26, 2016;
                                                  cause why the operator’s modification                   after the claim is already scheduled for                 (2) Pending claims not yet adjudicated
                                                  request should not be denied and afford                 hearing before an administrative law                  by an administrative law judge, except
                                                  all parties time to respond to such order.              judge, the disclosure must be made at                 that medical information received prior
                                                  Responses may include evidence                          least 20 days before the scheduled                    to May 26, 2016 and not previously
                                                  pertaining to the operator’s continued                  hearing is held (see § 725.456(b)).                   disclosed must be provided to the other
                                                  compliance with the requirements of                        (d) Medical information disclosed                  parties within 60 days of May 26, 2016;
                                                  paragraph (e)(2). If, after the time for                under this section must not be                        and
                                                  response has expired, the adjudication                  considered in adjudicating any claim                     (3) Pending claims already
                                                  officer determines that the operator is                 unless a party designates the                         adjudicated by an administrative law
                                                  not meeting its obligations, the                        information as evidence in the claim.                 judge where—
                                                  adjudication officer must deny the                         (e) At the request of any party or on                 (i) The administrative law judge
                                                  operator’s modification request.                        his or her own motion, an adjudication                reopens the record for receipt of
                                                     (6) The denial of a request for                      officer may impose sanctions on any                   additional evidence in response to a
                                                  modification under this section will not                party or his or her representative who                timely reconsideration motion (see
                                                  bar any future modification request by                  fails to timely disclose medical                      § 725.479(b)) or after remand by the
                                                  the operator, so long as the operator                   information in compliance with this                   Benefits Review Board or a reviewing
                                                  satisfies the requirements of paragraph                 section.                                              court; or
                                                  (e)(2) of this section with each future                    (1) Sanctions must be appropriate to                  (ii) A party requests modification of
                                                  modification petition.                                  the circumstances and may only be                     the award or denial of benefits (see
                                                     (7) The provisions of this paragraph                 imposed after giving the party an                     § 725.310(a)).
                                                  apply to all modification requests filed                opportunity to demonstrate good cause                 ■ 4. In § 725.414, revise paragraphs
                                                  on or after May 26, 2016.                               why disclosure was not made and                       (a)(1) through (5), (c), and (d) to read as
                                                                                                          sanctions are not warranted. In                       follows:
                                                  ■ 3. Add § 725.413 to subpart E to read
                                                                                                          determining an appropriate sanction,
                                                  as follows:                                                                                                   § 725.414    Development of evidence.
                                                                                                          the adjudication officer must consider—
                                                  § 725.413 Disclosure of medical                            (i) Whether the sanction should be                   (a) * * *
                                                  information.                                            mitigated because the party was not                     (1) For purposes of this section, a
                                                     (a) For purposes of this section,                    represented by an attorney when the                   medical report is a physician’s written
                                                  medical information is any written                      information should have been disclosed;               assessment of the miner’s respiratory or
                                                  medical data, including data in                         and                                                   pulmonary condition. A medical report
                                                  electronic format, about the miner that                    (ii) Whether the party should not be               may be prepared by a physician who
                                                  a party develops in connection with a                   sanctioned because the failure to                     examined the miner and/or reviewed
                                                  claim for benefits, including medical                   disclose was attributable solely to the               the available admissible evidence.
                                                  data developed with any prior claim                     party’s attorney.                                     Supplemental medical reports prepared
                                                                                                             (2) Sanctions may include, but are not             by the same physician must be
                                                  that has not been disclosed previously
                                                                                                          limited to—                                           considered part of the physician’s
                                                  to the other parties. Medical information                  (i) Drawing an adverse inference
                                                  includes, but is not limited to—                                                                              original medical report. A physician’s
                                                                                                          against the non-disclosing party on the               written assessment of a single objective
                                                     (1) Any examining physician’s written
                                                                                                          facts relevant to the disclosure;                     test, such as a chest X-ray or a
                                                  or testimonial assessment of the miner,                    (ii) Limiting the non-disclosing
                                                  including the examiner’s findings,                                                                            pulmonary function test, is not a
                                                                                                          party’s claims, defenses or right to                  medical report for purposes of this
                                                  diagnoses, conclusions, and the results                 introduce evidence;
                                                  of any tests;                                                                                                 section.
                                                                                                             (iii) Dismissing the claim proceeding                (2)(i) The claimant is entitled to
                                                     (2) Any other physician’s written or                 if the non-disclosing party is the
                                                  testimonial assessment of the miner’s                                                                         submit, in support of his affirmative
                                                                                                          claimant and no payments prior to final               case, no more than two chest X-ray
                                                  respiratory or pulmonary condition;                     adjudication have been made to the
                                                     (3) The results of any test or                                                                             interpretations, the results of no more
                                                                                                          claimant unless the Director agrees to                than two pulmonary function tests, the
                                                  procedure related to the miner’s                        the dismissal in writing (see
                                                  respiratory or pulmonary condition,                                                                           results of no more than two arterial
                                                                                                          § 725.465(d));                                        blood gas studies, no more than one
                                                  including any information relevant to                      (iv) Rendering a default decision
                                                  the test or procedure’s administration;                                                                       report of an autopsy, no more than one
                                                                                                          against the non-disclosing party;
                                                  and                                                        (v) Disqualifying the non-disclosing               report of each biopsy, and no more than
                                                     (4) Any physician’s or other medical                 party’s attorney from further                         two medical reports. Any chest X-ray
                                                  professional’s interpretation of the                    participation in the claim proceedings;               interpretations, pulmonary function test
                                                  results of any test or procedure related                and                                                   results, blood gas studies, autopsy
                                                  to the miner’s respiratory or pulmonary                    (vi) Relieving a claimant who files a              report, biopsy report, and physicians’
                                                  condition.                                              subsequent claim from the impact of                   opinions that appear in a medical report
                                                     (b) For purposes of this section,                    § 725.309(c)(6) if the non-disclosed                  must each be admissible under this
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                                                  medical information does not include—                   evidence predates the denial of the prior             paragraph or paragraph (a)(4) of this
                                                     (1) Any record of a miner’s                          claim and the non-disclosing party is                 section.
                                                  hospitalization or other medical                        the operator.                                           (ii) The claimant is entitled to submit,
                                                  treatment; or                                              (3) Sanctions must not include—                    in rebuttal of the case presented by the
                                                     (2) Communications from a party’s                       (i) Fines or                                       party opposing entitlement, no more
                                                  representative to a medical expert.                        (ii) Imprisonment.                                 than one physician’s interpretation of
                                                     (c) Each party must disclose medical                    (4) Sanctions imposed by a district                each chest X-ray, pulmonary function
                                                  information the party or the party’s                    director are subject to review by an                  test, arterial blood gas study, autopsy or


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                                                                      Federal Register / Vol. 81, No. 80 / Tuesday, April 26, 2016 / Rules and Regulations                                            24481

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


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                                                  24482               Federal Register / Vol. 81, No. 80 / Tuesday, April 26, 2016 / Rules and Regulations

                                                  pay benefits with respect to a claim for                fund on behalf of such operator or other              of proposed rulemaking (REG–136018–
                                                  which the operator has been adjudicated                 employer.                                             13) in the Federal Register (80 FR
                                                  liable, the Director may invoke and                       (c) The fund may not be held liable                 11141) proposing the method to be used
                                                  execute the lien on the property of the                 for payments of additional                            to determine the adjusted AFRs for tax-
                                                  operator as described in § 725.603.                     compensation under any circumstances.                 exempt obligations under section 1288
                                                  Enforcement of this lien must be                          Signed at Washington, DC, this 19th day of          and the method to be used to determine
                                                  pursued in an appropriate U.S. district                 April, 2016.                                          the long-term tax-exempt rate and the
                                                  court. If the Director determines that the              Leonard J. Howie, III,                                adjusted Federal long-term rate under
                                                  remedy provided by § 725.603 may not                    Director, Office of Workers’ Compensation             section 382. No comments were
                                                  be sufficient to guarantee the continued                Programs.                                             received on the notice of proposed
                                                  compliance with the terms of an award                   [FR Doc. 2016–09525 Filed 4–25–16; 8:45 am]           rulemaking. No public hearing was
                                                  or awards against the operator, the                     BILLING CODE 4510–CR–P
                                                                                                                                                                requested or held. Accordingly, this
                                                  Director may in addition seek an                                                                              Treasury decision adopts the proposed
                                                  injunction in the U.S. district court to                                                                      regulations without substantive change.
                                                  prohibit future noncompliance by the
                                                                                                          DEPARTMENT OF THE TREASURY                            Explanation of Provisions
                                                  operator and such other relief as the
                                                  court considers appropriate (see                                                                                The regulations in this Treasury
                                                                                                          Internal Revenue Service
                                                  § 725.604). If an operator unlawfully                                                                         decision provide the new method by
                                                  suspends or terminates the payment of                                                                         which the Treasury Department and the
                                                                                                          26 CFR Part 1
                                                  benefits to a claimant, the district                                                                          IRS will determine the adjusted AFRs
                                                  director may declare the award in                       [TD 9763]                                             under section 1288 to take into account
                                                  default and proceed in accordance with                  RIN 1545–BM20
                                                                                                                                                                the tax exemption for interest on tax-
                                                  § 725.605. In all cases payments of                                                                           exempt obligations (as defined in
                                                  additional compensation (see § 725.607)                 Determination of Adjusted Applicable                  section 1275(a)(3) and § 1.1275–1(e)).
                                                  and interest (see § 725.608) will be                    Federal Rates Under Section 1288 and                  The regulations also provide that the
                                                  sought by the Director or awarded by                    the Adjusted Federal Long-Term Rate                   Treasury Department and the IRS will
                                                  the district director.                                  Under Section 382                                     use the new method to determine the
                                                     (c) In certain instances the remedies                                                                      long-term tax-exempt rate and the
                                                  provided by the Act are concurrent; that                AGENCY:  Internal Revenue Service (IRS),              adjusted Federal long-term rate under
                                                  is, more than one remedy might be                       Treasury.                                             section 382(f) to take into account
                                                  appropriate in any given case. In such                  ACTION: Final regulations.                            differences between rates on long-term
                                                  a case, the Director may select the                                                                           taxable and tax-exempt obligations.
                                                                                                          SUMMARY:   This document contains final                 Since November 1986, the adjusted
                                                  remedy or remedies appropriate for the
                                                                                                          regulations that provide the method to                Federal long-term rate published under
                                                  enforcement action. In making this
                                                                                                          be used to adjust the applicable Federal              section 382(f)(2) has been equal to the
                                                  selection, the Director shall consider the
                                                                                                          rates (AFRs) to determine the                         long-term adjusted AFR with annual
                                                  best interests of the claimant as well as
                                                                                                          corresponding rates under section 1288                compounding published under section
                                                  those of the fund.
                                                                                                          of the Internal Revenue Code (Code) for               1288(b) in the same month. See Rev.
                                                  ■ 6. Revise § 725.607 to read as follows:
                                                                                                          tax-exempt obligations (adjusted AFRs)                Rul. 86–133 (1986–2 CB 59). For
                                                  § 725.607 Payments of additional                        and the method to be used to determine                calendar months from November 1986
                                                  compensation.                                           the long-term tax-exempt rate and the                 to February 2013, the Treasury
                                                     (a) If any benefits payable under the                adjusted Federal long-term rate under                 Department determined the adjusted
                                                  terms of an award by a district director                section 382. For tax-exempt obligations,              Federal long-term rate and each
                                                  (§ 725.419(d)), a decision and order filed              the regulations affect the determination              adjusted AFR described in section
                                                  and served by an administrative law                     of original issue discount under section              1288(b)(1) by multiplying the
                                                  judge (§ 725.478), or a decision filed by               1273 and of total unstated interest under             corresponding AFR by a fraction (the
                                                  the Board or a U.S. court of appeals, are               section 483. In addition, the regulations             adjustment factor). The numerator of the
                                                  not paid by an operator or other                        affect the determination of the                       adjustment factor was a composite yield
                                                  employer ordered to make such                           limitations under sections 382 and 383                of the highest-grade tax-exempt
                                                  payments within 10 days after such                      on the use of certain operating loss                  obligations available, which are prime,
                                                  payments become due, there will be                      carryforwards, tax credits, and other                 general obligation tax-exempt
                                                  added to such unpaid benefits an                        attributes of corporations following                  obligations. The denominator was a
                                                  amount equal to 20 percent thereof,                     ownership changes.                                    composite yield of U.S. Treasury
                                                  which must be paid to the claimant at                   DATES: Effective Date: These regulations              obligations with maturities similar to
                                                  the same time as, but in addition to,                   are effective on April 26, 2016.                      those of the tax-exempt obligations.
                                                  such benefits, unless review of the order                  Applicability Dates: For the dates of              Each of the composite yields was
                                                  making such award is sought as                          applicability, see §§ 1.382–12(d) and                 measured over a one-month period.
                                                  provided in section 21 of the LHWCA                     1.1288–1(c).                                            The IRS published Notice 2013–4
                                                  and an order staying payments has been                  FOR FURTHER INFORMATION CONTACT:                      (2013–9 IRB 527) on February 25, 2013,
                                                  issued.                                                 Concerning the regulations under                      requesting comments on possible
                                                     (b) If, on account of an operator’s or               section 1288, Jason G. Kurth at (202)                 modifications to the method by which
asabaliauskas on DSK3SPTVN1PROD with RULES




                                                  other employer’s failure to pay benefits                317–6842; concerning the regulations                  adjusted AFRs and the adjusted Federal
                                                  as provided in paragraph (a) of this                    under section 382, William W. Burhop                  long-term rate are determined. The IRS
                                                  section, benefit payments are made by                   at (202) 317–6847.                                    requested comments on these possible
                                                  the fund, the eligible claimant will                    SUPPLEMENTARY INFORMATION:                            modifications because, since the
                                                  nevertheless be entitled to receive such                                                                      beginning of 2008, market yields of
                                                  additional compensation to which he or                  Background                                            prime, general obligation tax-exempt
                                                  she may be eligible under paragraph (a),                  On March 2, 2015, the IRS and the                   obligations had sometimes exceeded
                                                  with respect to all amounts paid by the                 Treasury Department published a notice                market yields of comparable U.S.


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Document Created: 2016-04-26 01:37:07
Document Modified: 2016-04-26 01:37:07
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionRules and Regulations
ActionFinal rule.
DatesThis rule is effective May 26, 2016.
ContactMichael 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.
FR Citation81 FR 24464 
RIN Number1240-AA10
CFR AssociatedTotal Disability Due to Pneumoconiosis; Coal Miners' Entitlement to Benefits and Survivors' Entitlement to Benefits

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