Section 725.544(c) FR 12-20-2000

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under paragraph (a) shall be subject to
collection or offset under subpart H of
this part.
§ 725.311 Communications with respect to
claims; time computations.

(a) Unless otherwise specified by this
part, all requests, responses, notices,
decisions, orders, or other
communications required or permitted
by this part shall be in writing.
(b) If required by this part, any
document, brief, or other statement
submitted in connection with the
adjudication of a claim under this part
shall be sent to each party to the claim
by the submitting party. If proof of
service is required with respect to any
communication, such proof of service
shall be submitted to the appropriate
adjudication officer and filed as part of
the claim record.
(c) In computing any period of time
described in this part, by any applicable
statute, or by the order of any
adjudication officer, the day of the act
or event from which the designated
period of time begins to run shall not be
included. The last day of the period
shall be included unless it is a Saturday,
Sunday, or legal holiday, in which event
the period extends until the next day
which is not a Saturday, Sunday, or
legal holiday. ‘‘Legal holiday’’ includes
New Year’s Day, Birthday of Martin
Luther King, Jr., Washington’s Birthday,
Memorial Day, Independence Day,
Labor Day, Columbus Day, Veterans
Day, Thanksgiving Day, Christmas Day
and any other day appointed as a
holiday by the President or the Congress
of the United States.
(d) In computing any period of time
described in this part in which the
period within which to file a response
commences upon receipt of a document,
it shall be presumed, in the absence of
evidence to the contrary, that the
document was received on the seventh
day after it was mailed. In any case in
which a provision of this part requires
a document to be sent to a person or
party by certified mail, and the
document is not sent by certified mail,
but the person or party actually received
the document, the document shall be
deemed to have been sent in compliance
with the provisions of this part. In such
a case, any time period which
commences upon the service of the
document shall commence on the date
the document was received.
Subpart D—Adjudication Officers;
Parties and Representatives
§ 725.350
officers?

Who are the adjudication

(a) General. The persons authorized
by the Secretary of Labor to accept

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evidence and decide claims on the basis
of such evidence are called
‘‘adjudication officers.’’ This section
describes the status of black lung claims
adjudication officers.
(b) District Director. The district
director is that official of the DCMWC
or his designee who is authorized to
perform functions with respect to the
development, processing, and
adjudication of claims in accordance
with this part.
(c) Administrative law judge. An
administrative law judge is that official
appointed pursuant to 5 U.S.C. 3105 (or
Public Law 94–504) who is qualified to
preside at hearings under 5 U.S.C. 557
and is empowered by the Secretary to
conduct formal hearings with respect to,
and adjudicate, claims in accordance
with this part. A person appointed
under Public Law 94–504 shall not be
considered an administrative law judge
for purposes of this part for any period
after March 1, 1979.
§ 725.351

Powers of adjudication officers.

(a) District Director. The district
director is authorized to:
(1) Make determinations with respect
to claims as is provided in this part;
(2) Conduct conferences and informal
discovery proceedings as provided in
this part;
(3) Compel the production of
documents by the issuance of a
subpoena;
(4) Prepare documents for the
signature of parties;
(5) Issue appropriate orders as
provided in this part; and
(6) Do all other things necessary to
enable him or her to discharge the
duties of the office.
(b) Administrative Law Judge. An
administrative law judge is authorized
to:
(1) Conduct formal hearings in
accordance with the provisions of this
part;
(2) Administer oaths and examine
witnesses;
(3) Compel the production of
documents and appearance of witnesses
by the issuance of subpoenas;
(4) Issue decisions and orders with
respect to claims as provided in this
part; and
(5) Do all other things necessary to
enable him or her to discharge the
duties of the office.
(c) If any person in proceedings before
an adjudication officer disobeys or
resists any lawful order or process, or
misbehaves during a hearing or so near
the place thereof as to obstruct the same,
or neglects to produce, after having been
ordered to do so, any pertinent book,
paper or document, or refuses to appear

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after having been subpoenaed, or upon
appearing refuses to take the oath as a
witness, or after having taken the oath
refuses to be examined according to law,
the district director, or the
administrative law judge responsible for
the adjudication of the claim, shall
certify the facts to the Federal district
court having jurisdiction in the place in
which he or she is sitting (or to the U.S.
District Court for the District of
Columbia if he or she is sitting in the
District) which shall thereupon in a
summary manner hear the evidence as
to the acts complained of, and, if the
evidence so warrants, punish such
person in the same manner and to the
same extent as for a contempt
committed before the court, or commit
such person upon the same condition as
if the doing of the forbidden act had
occurred with reference to the process
or in the presence of the court.
§ 725.352
officer.

Disqualification of adjudication

(a) No adjudication officer shall
conduct any proceedings in a claim in
which he or she is prejudiced or partial,
or where he or she has any interest in
the matter pending for decision. A
decision to withdraw from the
consideration of a claim shall be within
the discretion of the adjudication
officer. If that adjudication officer
withdraws, another officer shall be
designated by the Director or the Chief
Administrative Law Judge, as the case
may be, to complete the adjudication of
the claim.
(b) No adjudication officer shall be
permitted to appear or act as a
representative of a party under this part
while such individual is employed as an
adjudication officer. No adjudication
officer shall be permitted at any time to
appear or act as a representative in
connection with any case or claim in
which he or she was personally
involved. No fee or reimbursement shall
be awarded under this part to an
individual who acts in violation of this
paragraph.
(c) No adjudication officer shall act in
any claim involving a party which
employed such adjudication officer
within one year before the adjudication
of such claim.
(d) Notwithstanding paragraph (a) of
this section, no adjudication officer
shall be permitted to act in any claim
involving a party who is related to the
adjudication officer by consanguinity or
affinity within the third degree as
determined by the law of the place
where such party is domiciled. Any
action taken by an adjudication officer
in knowing violation of this paragraph
shall be void.

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§ 725.360

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Parties to proceedings.

(a) Except as provided in § 725.361,
no person other than the Secretary of
Labor and authorized personnel of the
Department of Labor shall participate at
any stage in the adjudication of a claim
for benefits under this part, unless such
person is determined by the appropriate
adjudication officer to qualify under the
provisions of this section as a party to
the claim. The following persons shall
be parties:
(1) The claimant;
(2) A person other than a claimant,
authorized to execute a claim on such
claimant’s behalf under § 725.301;
(3) Any coal mine operator notified
under § 725.407 of its possible liability
for the claim;
(4) Any insurance carrier of such
operator; and
(5) The Director in all proceedings
relating to a claim for benefits under
this part.
(b) A widow, child, parent, brother, or
sister, or the representative of a
decedent’s estate, who makes a showing
in writing that his or her rights with
respect to benefits may be prejudiced by
a decision of an adjudication officer,
may be made a party.
(c) Any coal mine operator or prior
operator or insurance carrier which has
not been notified under § 725.407 and
which makes a showing in writing that
its rights may be prejudiced by a
decision of an adjudication officer may
be made a party.
(d) Any other individual may be made
a party if that individual’s rights with
respect to benefits may be prejudiced by
a decision to be made.
§ 725.361

Party amicus curiae.

At the discretion of the Chief
Administrative Law Judge or the
administrative law judge assigned to the
case, a person or entity which is not a
party may be allowed to participate
amicus curiae in a formal hearing only
as to an issue of law. A person may
participate amicus curiae in a formal
hearing upon written request submitted
with supporting arguments prior to the
hearing. If the request is granted, the
administrative law judge hearing the
case will inform the party of the extent
to which participation will be
permitted. The request may, however,
be denied summarily and without
explanation.
§ 725.362

Representation of parties.

(a) Except for the Secretary of Labor,
whose interests shall be represented by
the Solicitor of Labor or his or her
designee, each of the parties may
appoint an individual to represent his or
her interest in any proceeding for

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determination of a claim under this part.
Such appointment shall be made in
writing or on the record at the hearing.
An attorney qualified in accordance
with § 725.363(a) shall file a written
declaration that he or she is authorized
to represent a party, or declare his or her
representation on the record at a formal
hearing. Any other person (see
§ 725.363(b)) shall file a written notice
of appointment signed by the party or
his or her legal guardian, or enter his or
her appearance on the record at a formal
hearing if the party he or she seeks to
represent is present and consents to the
representation. Any written declaration
or notice required by this section shall
include the OWCP number assigned by
the Office and shall be sent to the Office
or, for representation at a formal
hearing, to the Chief Administrative
Law Judge. In any case, such
representative must be qualified under
§ 725.363. No authorization for
representation or agreement between a
claimant and representative as to the
amount of a fee, filed with the Social
Security Administration in connection
with a claim under part B of title IV of
the Act, shall be valid under this part.
A claimant who has previously
authorized a person to represent him or
her in connection with a claim
originally filed under part B of title IV
may renew such authorization by filing
a statement to such effect with the
Office or appropriate adjudication
officer.
(b) Any party may waive his or her
right to be represented in the
adjudication of a claim. If an
adjudication officer determines, after an
appropriate inquiry has been made, that
a claimant who has been informed of his
or her right to representation does not
wish to obtain the services of a
representative, such adjudication officer
shall proceed to consider the claim in
accordance with this part, unless it is
apparent that the claimant is, for any
reason, unable to continue without the
help of a representative. However, it
shall not be necessary for an
adjudication officer to inquire as to the
ability of a claimant to proceed without
representation in any adjudication
taking place without a hearing. The
failure of a claimant to obtain
representation in an adjudication taking
place without a hearing shall be
considered a waiver of the claimant’s
right to representation. However, at any
time during the processing or
adjudication of a claim, any claimant
may revoke such waiver and obtain a
representative.

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§ 725.363

Qualification of representative.

(a) Attorney. Any attorney in good
standing who is admitted to practice
before a court of a State, territory,
district, or insular possession, or before
the Supreme Court of the United States
or other Federal court and is not,
pursuant to any provision of law,
prohibited from acting as a
representative, may be appointed as a
representative.
(b) Other person. With the approval of
the adjudication officer, any other
person may be appointed as a
representative so long as that person is
not, pursuant to any provision of law,
prohibited from acting as a
representative.
§ 725.364

Authority of representative.

A representative, appointed and
qualified as provided in §§ 725.362 and
725.363, may make or give on behalf of
the party he or she represents, any
request or notice relative to any
proceeding before an adjudication
officer, including formal hearing and
review, except that such representative
may not execute a claim for benefits,
unless he or she is a person designated
in § 725.301 as authorized to execute a
claim. A representative shall be entitled
to present or elicit evidence and make
allegations as to facts and law in any
proceeding affecting the party
represented and to obtain information
with respect to the claim of such party
to the same extent as such party. Notice
given to any party of any administrative
action, determination, or decision, or
request to any party for the production
of evidence shall be sent to the
representative of such party and such
notice or request shall have the same
force and effect as if it had been sent to
the party represented.
§ 725.365 Approval of representative’s
fees; lien against benefits.

No fee charged for representation
services rendered to a claimant with
respect to any claim under this part
shall be valid unless approved under
this subpart. No contract or prior
agreement for a fee shall be valid. In
cases where the obligation to pay the
attorney’s fee is upon the claimant, the
amount of the fee awarded may be made
a lien upon the benefits due under an
award and the adjudication officer shall
fix, in the award approving the fee, such
lien and the manner of payment of the
fee. Any representative who is not an
attorney may be awarded a fee for
services under this subpart, except that
no lien may be imposed with respect to
such representative’s fee.

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§ 725.366

Fees for representatives.

(a) A representative seeking a fee for
services performed on behalf of a
claimant shall make application therefor
to the district director, administrative
law judge, or appropriate appellate
tribunal, as the case may be, before
whom the services were performed. The
application shall be filed and served
upon the claimant and all other parties
within the time limits allowed by the
district director, administrative law
judge, or appropriate appellate tribunal.
The application shall be supported by a
complete statement of the extent and
character of the necessary work done,
and shall indicate the professional
status (e.g., attorney, paralegal, law
clerk, lay representative or clerical) of
the person performing such work, and
the customary billing rate for each such
person. The application shall also
include a listing of reasonable
unreimbursed expenses, including those
for travel, incurred by the representative
or an employee of a representative in
establishing the claimant’s case. Any fee
requested under this paragraph shall
also contain a description of any fee
requested, charged, or received for
services rendered to the claimant before
any State or Federal court or agency in
connection with a related matter.
(b) Any fee approved under paragraph
(a) of this section shall be reasonably
commensurate with the necessary work
done and shall take into account the
quality of the representation, the
qualifications of the representative, the
complexity of the legal issues involved,
the level of proceedings to which the
claim was raised, the level at which the
representative entered the proceedings,
and any other information which may
be relevant to the amount of fee
requested. No fee approved shall
include payment for time spent in
preparation of a fee application. No fee
shall be approved for work done on
claims filed between December 30,
1969, and June 30, 1973, under part B
of title IV of the Act, except for services
rendered on behalf of the claimant in
regard to the review of the claim under
section 435 of the Act and part 727 of
this subchapter (see § 725.4(d)).
(c) In awarding a fee, the appropriate
adjudication officer shall consider, and
shall add to the fee, the amount of
reasonable and unreimbursed expenses
incurred in establishing the claimant’s
case. Reimbursement for travel expenses
incurred by an attorney shall be
determined in accordance with the
provisions of § 725.459(a). No
reimbursement shall be permitted for
expenses incurred in obtaining medical
or other evidence which has previously

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been submitted to the Office in
connection with the claim.
(d) Upon receipt of a request for
approval of a fee, such request shall be
reviewed and evaluated by the
appropriate adjudication officer and a
fee award issued. Any party may request
reconsideration of a fee awarded by the
adjudication officer. A revised or
modified fee award may then be issued,
if appropriate.
(e) Each request for reconsideration or
review of a fee award shall be in writing
and shall contain supporting statements
or information pertinent to any increase
or decrease requested. If a fee awarded
by a district director is disputed, such
award shall be appealable directly to the
Benefits Review Board. In such a fee
dispute case, the record before the
Board shall consist of the order of the
district director awarding or denying the
fee, the application for a fee, any written
statement in opposition to the fee and
the documentary evidence contained in
the file which verifies or refutes any
item claimed in the fee application.
§ 725.367 Payment of a claimant’s
attorney’s fee by responsible operator or
fund.

(a) An attorney who represents a
claimant in the successful prosecution
of a claim for benefits may be entitled
to collect a reasonable attorney’s fee
from the responsible operator that is
ultimately found liable for the payment
of benefits, or, in a case in which there
is no operator who is liable for the
payment of benefits, from the fund.
Generally, the operator or fund liable for
the payment of benefits shall be liable
for the payment of the claimant’s
attorney’s fees where the operator or
fund, as appropriate, took action, or
acquiesced in action, that created an
adversarial relationship between itself
and the claimant. The fees payable
under this section shall include
reasonable fees for necessary services
performed prior to the creation of the
adversarial relationship. Circumstances
in which a successful attorney’s fees
shall be payable by the responsible
operator or the fund include, but are not
limited to, the following:
(1) The responsible operator
designated by the district director (see
§ 725.410(a)(3)) fails to accept the
claimant’s entitlement to benefits within
the 30-day period provided by
§ 725.412(b) and is ultimately
determined to be liable for benefits. The
operator shall be liable for an attorney’s
fee with respect to all necessary services
performed by the claimant’s attorney;
(2) There is no operator that may be
held liable for the payment of benefits,
and the district director issues a

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schedule for the submission of
additional evidence under § 725.410.
The fund shall be liable for an attorney’s
fee with respect to all necessary services
performed by the claimant’s attorney;
(3) The claimant submits a bill for
medical treatment, and the party liable
for the payment of benefits declines to
pay the bill on the grounds that the
treatment is unreasonable, or is for a
condition that is not compensable. The
responsible operator or fund, as
appropriate, shall be liable for an
attorney’s fee with respect to all
necessary services performed by the
claimant’s attorney;
(4) A beneficiary seeks an increase in
the amount of benefits payable, and the
responsible operator or fund contests
the claimant’s right to that increase. If
the beneficiary is successful in securing
an increase in the amount of benefits
payable, the operator or fund shall be
liable for an attorney’s fee with respect
to all necessary services performed by
the beneficiary’s attorney;
(5) The responsible operator or fund
seeks a decrease in the amount of
benefits payable. If the beneficiary is
successful in resisting the request for a
decrease in the amount of benefits
payable, the operator or fund shall be
liable for an attorney’s fee with respect
to all necessary services performed by
the beneficiary’s attorney. A request for
information clarifying the amount of
benefits payable shall not be considered
a request to decrease that amount.
(b) Any fee awarded under this
section shall be in addition to the award
of benefits, and shall be awarded, in an
order, by the district director,
administrative law judge, Board or
court, before whom the work was
performed. The operator or fund shall
pay such fee promptly and directly to
the claimant’s attorney in a lump sum
after the award of benefits becomes
final.
(c) Section 205(a) of the Black Lung
Benefits Amendments of 1981, Public
Law 97–119, amended section 422 of
the Act and relieved operators and
carriers from liability for the payment of
benefits on certain claims. Payment of
benefits on those claims was made the
responsibility of the fund. The claims
subject to this transfer of liability are
described in § 725.496. On claims
subject to the transfer of liability
described in this paragraph the fund
will pay all fees and costs which have
been or will be awarded to claimant’s
attorneys which were or would have
become the liability of an operator or
carrier but for the enactment of the 1981
Amendments and which have not
already been paid by such operator or
carrier. Section 9501(d)(7) of the

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Internal Revenue Code (26 U.S.C.),
which was also enacted as a part of the
1981 Amendments to the Act, expressly
prohibits the fund from reimbursing an
operator or carrier for any attorney fees
or costs which it has paid on cases
subject to the transfer of liability
provisions.
Subpart E—Adjudication of Claims by
the District Director
§ 725.401

Claims development—general.

After a claim has been received by the
district director, the district director
shall take such action as is necessary to
develop, process, and make
determinations with respect to the claim
as provided in this subpart.
§ 725.402 Approved State workers’
compensation law.

If a district director determines that
any claim filed under this part is one
subject to adjudication under a workers’
compensation law approved under part
722 of this subchapter, he or she shall
advise the claimant of this
determination and of the Act’s
requirement that the claim must be filed
under the applicable State workers’
compensation law. The district director
shall then prepare a proposed decision
and order dismissing the claim for lack
of jurisdiction pursuant to § 725.418 and
proceed as appropriate.
§ 725.403

[Reserved]

§ 725.404
general.

Development of evidence—

(a) Employment history. Each
claimant shall furnish the district
director with a complete and detailed
history of the coal miner’s employment
and, upon request, supporting
documentation.
(b) Matters of record. Where it is
necessary to obtain proof of age,
marriage or termination of marriage,
death, family relationship, dependency
(see subpart B of this part), or any other
fact which may be proven as a matter of
public record, the claimant shall furnish
such proof to the district director upon
request.
(c) Documentary evidence. If a
claimant is required to submit
documents to the district director, the
claimant shall submit either the
original, a certified copy or a clear
readable copy thereof. The district
director or administrative law judge
may require the submission of an
original document or certified copy
thereof, if necessary.
(d) Submission of insufficient
evidence. In the event a claimant
submits insufficient evidence regarding
any matter, the district director shall

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inform the claimant of what further
evidence is necessary and request that
such evidence be submitted within a
specified reasonable time which may,
upon request, be extended for good
cause.
§ 725.405 Development of medical
evidence; scheduling of medical
examinations and tests.

(a) Upon receipt of a claim, the
district director shall ascertain whether
the claim was filed by or on account of
a miner as defined in § 725.202, and in
the case of a claim filed on account of
a deceased miner, whether the claim
was filed by an eligible survivor of such
miner as defined in subpart B of this
part.
(b) In the case of a claim filed by or
on behalf of a miner, the district director
shall, where necessary, schedule the
miner for a medical examination and
testing under § 725.406.
(c) In the case of a claim filed by or
on behalf of a survivor of a miner, the
district director shall obtain whatever
medical evidence is necessary and
available for the development and
evaluation of the claim.
(d) The district director shall, where
appropriate, collect other evidence
necessary to establish:
(1) The nature and duration of the
miner’s employment; and
(2) All other matters relevant to the
determination of the claim.
(e) If at any time during the
processing of the claim by the district
director, the evidence establishes that
the claimant is not entitled to benefits
under the Act, the district director may
terminate evidentiary development of
the claim and proceed as appropriate.
§ 725.406

Medical examinations and tests.

(a) The Act requires the Department to
provide each miner who applies for
benefits with the opportunity to
undergo a complete pulmonary
evaluation at no expense to the miner.
A complete pulmonary evaluation
includes a report of physical
examination, a pulmonary function
study, a chest roentgenogram and,
unless medically contraindicated, a
blood gas study.
(b) As soon as possible after a miner
files an application for benefits, the
district director will provide the miner
with a list of medical facilities and
physicians in the state of the miner’s
residence and states contiguous to the
state of the miner’s residence that the
Office has authorized to perform
complete pulmonary evaluations. The
miner shall select one of the facilities or
physicians on the list, provided that the
miner may not select any physician to

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whom the miner or the miner’s spouse
is related to the fourth degree of
consanguinity, and the miner may not
select any physician who has examined
or provided medical treatment to the
miner within the twelve months
preceding the date of the miner’s
application. The district director will
make arrangements for the miner to be
given a complete pulmonary evaluation
by that facility or physician. The results
of the complete pulmonary evaluation
shall not be counted as evidence
submitted by the miner under § 725.414.
(c) If any medical examination or test
conducted under paragraph (a) of this
section is not administered or reported
in substantial compliance with the
provisions of part 718 of this
subchapter, or does not provide
sufficient information to allow the
district director to decide whether the
miner is eligible for benefits, the district
director shall schedule the miner for
further examination and testing. Where
the deficiencies in the report are the
result of a lack of effort on the part of
the miner, the miner will be afforded
one additional opportunity to produce a
satisfactory result. In order to determine
whether any medical examination or
test was administered and reported in
substantial compliance with the
provisions of part 718 of this
subchapter, the district director may
have any component of such
examination or test reviewed by a
physician selected by the district
director.
(d) After the physician completes the
report authorized by paragraph (a), the
district director will inform the miner
that he may elect to have the results of
the objective testing sent to his treating
physician for use in preparing a medical
opinion. The district director will also
inform the claimant that any medical
opinion submitted by his treating
physician will count as one of the two
medical opinions that the miner may
submit under § 725.414 of this part.
(e) The cost of any medical
examination or test authorized under
this section, including the cost of travel
to and from the examination, shall be
paid by the fund. No reimbursement for
overnight accommodations shall be
authorized unless the district director
determines that an adequate testing
facility is unavailable within one day’s
round trip travel by automobile from the
miner’s residence. The fund shall be
reimbursed for such payments by an
operator, if any, found liable for the
payment of benefits to the claimant. If
an operator fails to repay such expenses,
with interest, upon request of the Office,
the entire amount may be collected in

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an action brought under section 424 of
the Act and § 725.603 of this part.
§ 725.407 Identification and notification of
responsible operator.

(a) Upon receipt of the miner’s
employment history, the district
director shall investigate whether any
operator may be held liable for the
payment of benefits as a responsible
operator in accordance with the criteria
contained in Subpart G of this part.
(b) The district director may identify
one or more operators potentially liable
for the payment of benefits in
accordance with the criteria set forth in
§ 725.495 of this part. The district
director shall notify each such operator
of the existence of the claim. Where the
records maintained by the Office
pursuant to part 726 of this subchapter
indicate that the operator had obtained
a policy of insurance, and the claim falls
within such policy, the notice provided
pursuant to this section shall also be
sent to the operator’s carrier. Any
operator or carrier notified of the claim
shall thereafter be considered a party to
the claim in accordance with § 725.360
of this part unless it is dismissed by an
adjudication officer and is not thereafter
notified again of its potential liability.
(c) The notification issued pursuant to
this section shall include a copy of the
claimant’s application and a copy of all
evidence obtained by the district
director relating to the miner’s
employment. The district director may
request the operator to answer specific
questions, including, but not limited to,
questions related to the nature of its
operations, its relationship with the
miner, its financial status, including any
insurance obtained to secure its
obligations under the Act, and its
relationship with other potentially
liable operators. A copy of any
notification issued pursuant to this
section shall be sent to the claimant by
regular mail.
(d) If at any time before a case is
referred to the Office of Administrative
Law Judges, the district director
determines that an operator which may
be liable for the payment of benefits has
not been notified under this section or
has been incorrectly dismissed pursuant
to § 725.410(a)(3), the district director
shall give such operator notice of its
potential liability in accordance with
this section. The adjudication officer
shall then take such further action on
the claim as may be appropriate. There
shall be no time limit applicable to a
later identification of an operator under
this paragraph if the operator
fraudulently concealed its identity as an
employer of the miner. The district
director may not notify additional

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operators of their potential liability after
a case has been referred to the Office of
Administrative Law Judges, unless the
case was referred for a hearing to
determine whether the claim was
properly denied as abandoned pursuant
to § 725.409.
§ 725.408 Operator’s response to
notification.

(a)(1) An operator which receives
notification under § 725.407 shall,
within 30 days of receipt, file a response
indicating its intent to accept or contest
its identification as a potentially liable
operator. The operator’s response shall
also be sent to the claimant by regular
mail.
(2) If the operator contests its
identification, it shall, on a form
supplied by the district director, state
the precise nature of its disagreement by
admitting or denying each of the
following assertions. In answering these
assertions, the term ‘‘operator’’ shall
include any operator for which the
identified operator may be considered a
successor operator pursuant to
§ 725.492.
(i) That the named operator was an
operator for any period after June 30,
1973;
(ii) That the operator employed the
miner as a miner for a cumulative
period of not less than one year;
(iii) That the miner was exposed to
coal mine dust while working for the
operator;
(iv) That the miner’s employment
with the operator included at least one
working day after December 31, 1969;
and
(v) That the operator is capable of
assuming liability for the payment of
benefits.
(3) An operator which receives
notification under § 725.407, and which
fails to file a response within the time
limit provided by this section, shall not
be allowed to contest its liability for the
payment of benefits on any of the
grounds set forth in paragraph (a)(2).
(b)(1) Within 90 days of the date on
which it receives notification under
§ 725.407, an operator may submit
documentary evidence in support of its
position.
(2) No documentary evidence relevant
to the grounds set forth in paragraph
(a)(2) may be admitted in any further
proceedings unless it is submitted
within the time limits set forth in this
section.
§ 725.409 Denial of a claim by reason of
abandonment.

(a) A claim may be denied at any time
by the district director by reason of
abandonment where the claimant fails:

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80073

(1) To undergo a required medical
examination without good cause; or,
(2) To submit evidence sufficient to
make a determination of the claim; or,
(3) To pursue the claim with
reasonable diligence; or,
(4) To attend an informal conference
without good cause.
(b)(1) If the district director
determines that a denial by reason of
abandonment under paragraphs (a)(1)
through (3) of this section is
appropriate, he or she shall notify the
claimant of the reasons for such denial
and of the action which must be taken
to avoid a denial by reason of
abandonment. If the claimant completes
the action requested within the time
allowed, the claim shall be developed,
processed and adjudicated as specified
in this part. If the claimant does not
fully comply with the action requested
by the district director, the district
director shall notify the claimant that
the claim has been denied by reason of
abandonment. Such notification shall be
served on the claimant and all other
parties to the claim by certified mail.
(2) In any case in which a claimant
has failed to attend an informal
conference and has not provided the
district director with his reasons for
failing to attend, the district director
shall ask the claimant to explain his
absence. In considering whether the
claimant had good cause for his failure
to attend the conference, the district
director shall consider all relevant
circumstances, including the age,
education, and health of the claimant, as
well as the distance between the
claimant’s residence and the location of
the conference. If the district director
concludes that the claimant had good
cause for failing to attend the
conference, he may continue processing
the claim, including, where appropriate
under § 725.416, the scheduling of an
informal conference. If the claimant
does not supply the district director
with his reasons for failing to attend the
conference within 30 days of the date of
the district director’s request, or the
district director concludes that the
reasons supplied by the claimant do not
establish good cause, the district
director shall notify the claimant that
the claim has been denied by reason of
abandonment. Such notification shall be
served on the claimant and all other
parties to the claim by certified mail.
(c) The denial of a claim by reason of
abandonment shall become effective
and final unless, within 30 days after
the denial is issued, the claimant
requests a hearing. Following the
expiration of the 30-day period, a new
claim may be filed at any time pursuant
to § 725.309. For purposes of § 725.309,

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a denial by reason of abandonment shall
be deemed a finding that the claimant
has not established any applicable
condition of entitlement. If the claimant
timely requests a hearing, the district
director shall refer the case to the Office
of Administrative Law Judges in
accordance with § 725.421. Except upon
the motion or written agreement of the
Director, the hearing will be limited to
the issue of whether the claim was
properly denied by reason of
abandonment. If the hearing is limited
to the issue of abandonment and the
administrative law judge determines
that the claim was not properly denied
by reason of abandonment, he shall
remand the claim to the district director
for the completion of administrative
processing.
§ 725.410 Submission of additional
evidence.

(a) After the district director
completes the development of medical
evidence under § 725.405 of this part,
including the complete pulmonary
evaluation authorized by § 725.406, and
receives the responses and evidence
submitted pursuant to § 725.408, he
shall issue a schedule for the
submission of additional evidence. The
schedule shall contain the following
information:
(1) If the claim was filed by, or on
behalf of, a miner, the schedule shall
contain a summary of the complete
pulmonary evaluation administered
pursuant to § 725.406. If the claim was
filed by, or on behalf of, a survivor, the
schedule shall contain a summary of
any medical evidence developed by the
district director pursuant to
§ 725.405(c).
(2) The schedule shall contain the
district director’s preliminary analysis
of the medical evidence. If the district
director believes that the evidence fails
to establish any necessary element of
entitlement, he shall inform the
claimant of the element of entitlement
not established and the reasons for his
conclusions and advise the claimant
that, unless he submits additional
evidence, the district director will issue
a proposed decision and order denying
the claim.
(3) The schedule shall contain the
district director’s designation of a
responsible operator liable for the
payment of benefits. In the event that
the district director has designated as
the responsible operator an employer
other than the employer who last
employed the claimant as a miner, the
district director shall include, with the
schedule, a copy of the statements
required by § 725.495(d) of this part.
The district director may, in his

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discretion, dismiss as parties any of the
operators notified of their potential
liability pursuant to § 725.407. If the
district director thereafter determines
that the participation of a party
dismissed pursuant to this section is
required, he may once again notify the
operator in accordance with
§ 725.407(d).
(4) The schedule shall notify the
claimant and the designated responsible
operator that they have the right to
obtain further adjudication of the claim
in accordance with this subpart, and
that they have the right to submit
additional evidence in accordance with
this subpart. The schedule shall also
notify the claimant that he has the right
to obtain representation, under the
terms set forth in subpart D, in order to
assist him. In a case in which the
district director has designated a
responsible operator pursuant to
paragraph (a)(3), the schedule shall
further notify the claimant that if the
operator fails to accept the claimant’s
entitlement to benefits within the time
limit provided by § 725.412, the cost of
obtaining additional medical and other
necessary evidence, along with a
reasonable attorney’s fee, shall be
reimbursed by the responsible operator
in the event that the claimant
establishes his entitlement to benefits
payable by that operator. In a case in
which there is no operator liable for the
payment of benefits, the schedule shall
notify the claimant that the cost of
obtaining additional medical and other
necessary evidence, along with a
reasonable attorney’s fee, shall be
reimbursed by the fund.
(b) The schedule shall allow all
parties not less than 60 days within
which to submit additional evidence,
including evidence relevant to the
claimant’s eligibility for benefits and
evidence relevant to the liability of the
designated responsible operator, and
shall provide not less than an additional
30 days within which the parties may
respond to evidence submitted by other
parties. Any such evidence must meet
the requirements set forth in § 725.414
in order to be admitted into the record.
(c) The district director shall serve a
copy of the schedule, together with a
copy of all of the evidence developed,
on the claimant, the designated
responsible operator, and all other
operators which received notification
pursuant to § 725.407. The schedule
shall be served on each party by
certified mail.
§ 725.411
cases.

Initial adjudication in Trust Fund

Notwithstanding the requirements of
§ 725.410 of this part, if the district

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director concludes that the results of the
complete pulmonary evaluation support
a finding of eligibility, and that there is
no operator responsible for the payment
of benefits, the district director shall
issue a proposed decision and order in
accordance with § 725.418 of this part.
§ 725.412

Operator’s response.

(a)(1) Within 30 days after the district
director issues a schedule pursuant to
§ 725.410 of this part containing a
designation of the responsible operator
liable for the payment of benefits, that
operator shall file a response with
regard to its liability. The response shall
specifically indicate whether the
operator agrees or disagrees with the
district director’s designation.
(2) If the responsible operator
designated by the district director does
not file a timely response, it shall be
deemed to have accepted the district
director’s designation with respect to its
liability, and to have waived its right to
contest its liability in any further
proceeding conducted with respect to
the claim.
(b) The responsible operator
designated by the district director may
also file a statement accepting
claimant’s entitlement to benefits. If that
operator fails to file a timely response to
the district director’s designation, the
district director shall, upon receipt of
such a statement, issue a proposed
decision and order in accordance with
§ 725.418 of this part. If the operator
fails to file a statement accepting the
claimant’s entitlement to benefits within
30 days after the district director issues
a schedule pursuant to § 725.410 of this
part, the operator shall be deemed to
have contested the claimant’s
entitlement.
§ 725.413

[Reserved].

§ 725.414

Development of evidence.

(a) Medical evidence.
(1) For purposes of this section, a
medical report shall consist of 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. A physician’s
written assessment of a single objective
test, such as a chest X-ray or a
pulmonary function test, shall not be
considered a medical report for
purposes of this section.
(2)(i) The claimant shall be 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

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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 shall be entitled to
submit, in rebuttal of the case presented
by the party opposing entitlement, no
more than one physician’s
interpretation of each chest X-ray,
pulmonary function test, arterial blood
gas study, autopsy or biopsy submitted
by the designated responsible operator
or the fund, as appropriate, under
paragraph (a)(3)(i) or (a)(3)(iii) of this
section and by the Director pursuant to
§ 725.406. In any case in which the
party opposing entitlement has
submitted the results of other testing
pursuant to § 718.107, the claimant shall
be 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
shall be 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 shall be 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 § 725.410 shall
be 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

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distance traveled by the miner in
obtaining the complete pulmonary
evaluation provided by § 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 § 725.409 of this
part).
(ii) The responsible operator shall be
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 § 725.406. In
any case in which the claimant has
submitted the results of other testing
pursuant to § 718.107, the responsible
operator shall be 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 shall be entitled to submit an
additional statement from the physician
who originally interpreted the chest Xray 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 shall
be 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 § 725.410(a)(3), the
district director shall be 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
§ 725.406 shall 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 § 725.708 of this part, the
district director shall be entitled to
develop medical evidence to determine

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80075

whether the medical bill is compensable
under the standard set forth in § 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 shall 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.
(b) Evidence pertaining to liability. (1)
Except as provided by § 725.408(b)(2),
the designated responsible operator may
submit evidence to demonstrate that it
is not the potentially liable operator that
most recently employed the claimant.
(2) Any other party may submit
evidence regarding the liability of the
designated responsible operator or any
other operator.
(3) A copy of any documentary
evidence submitted under this
paragraph must be mailed to all other
parties to the claim. Following the
submission of affirmative 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 shall 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 § 725.456 of
this part. In accordance with the
schedule issued by the district director,
all parties shall 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

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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 shall 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
§ 725.456 and § 725.310(b), the
limitations set forth in this section shall
apply to all proceedings conducted with
respect to a claim, and no documentary
evidence pertaining to liability shall 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.
§ 725.415 Action by the district director
after development of evidence.

(a) At the end of the period permitted
under § 725.410(b) for the submission of
evidence, the district director shall
review the claim on the basis of all
evidence submitted in accordance with
§ 725.414.
(b) After review of all evidence
submitted, the district director may
issue another schedule for the
submission of additional evidence
pursuant to § 725.410, identifying
another potentially liable operator as the
responsible operator liable for the
payment of benefits. In such a case, the
district director shall not permit the
development or submission of any
additional medical evidence until after
he has made a final determination of the
identity of the responsible operator
liable for the payment of benefits. If the
operator who is finally determined to be
the responsible operator has not had the
opportunity to submit medical evidence
pursuant to § 725.410, the district
director shall allow the designated
responsible operator and the claimant
not less than 60 days within which to
submit evidence relevant to the
claimant’s eligibility for benefits. The
designated responsible operator may
elect to adopt any medical evidence
previously submitted by another
operator as its own evidence, subject to
the limitations of § 725.414. The district
director may also schedule a conference
in accordance with § 725.416, issue a
proposed decision and order in
accordance with § 725.418, or take such
other action as the district director
considers appropriate.
§ 725.416

Conferences.

(a) At the conclusion of the period
permitted by § 725.410(b) of this part for
the submission of evidence, the district
director may conduct an informal

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conference in any claim where it
appears that such conference will assist
in the voluntary resolution of any issue
raised with respect to the claim. The
conference proceedings shall not be
stenographically reported and sworn
testimony shall not be taken. Any
conference conducted pursuant to this
paragraph shall be held no later than 90
days after the conclusion of the period
permitted by § 725.410(b) of this part for
the submission of evidence, unless one
of the parties requests that the time
period be extended for good cause
shown. If the district director is unable
to hold the conference within the time
period permitted by this paragraph, he
shall proceed to issue a proposed
decision and order under § 725.418 of
this part.
(b) The district director shall notify
the parties of a definite time and place
for the conference. The district director
shall advise the parties that they have a
right to representation at the conference,
by an attorney or a lay representative,
and that no conference shall take place
unless the parties are represented. A
coal mine operator which is selfinsured, or which is covered by a policy
of insurance for the claim for which a
conference is scheduled, shall be
deemed to be represented. The
notification shall set forth the specific
reasons why the district director
believes that a conference will assist in
the voluntary resolution of any issue
raised with respect to the claim. No
sanction may be imposed under
paragraph (c) of this section unless the
record contains a notification that meets
the requirements of this section. The
district director may in his or her
discretion, or on the motion of any
party, cancel a conference or allow any
or all of the parties to participate by
telephone.
(c) The unexcused failure of any party
to appear at an informal conference
shall be grounds for the imposition of
sanctions. If the claimant fails to appear,
the district director may take such steps
as are authorized by § 725.409(b)(2) to
deny the claim by reason of
abandonment. If the responsible
operator fails to appear, it shall be
deemed to have waived its right to
contest its potential liability for an
award of benefits and, in the discretion
of the district director, its right to
contest any issue related to the
claimant’s eligibility.
(d) Any representative of an operator,
of an operator’s insurance carrier, or of
a claimant, authorized to represent such
party in accordance with paragraph (b),
shall be deemed to have sufficient
authority to stipulate facts or issues or
agree to a final disposition of the claim.

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(e) Procedures to be followed at a
conference shall be within the
discretion of the district director.
§ 725.417 Action at the conclusion of
conference.

(a) At the conclusion of a conference,
the district director shall prepare a
stipulation of contested and
uncontested issues which shall be
signed by the parties and the district
director. If a hearing is conducted with
respect to the claim, this stipulation
shall be submitted to the Office of
Administrative Law Judges and placed
in the claim record.
(b) In appropriate cases, the district
director may permit a reasonable time
for the submission of additional
evidence following a conference,
provided that such evidence does not
exceed the limits set forth in § 725.414.
The district director may also notify
additional operators of their potential
liability pursuant to § 725.407, or issue
another schedule for the submission of
additional evidence pursuant to
§ 725.410, designating another
potentially liable operator as the
responsible operator liable for the
payment of benefits, in order to allow
that operator an opportunity to submit
evidence relevant to its liability for
benefits as well as the claimant’s
eligibility for benefits.
(c) Within 20 days after the
termination of all conference
proceedings, the district director shall
prepare and send to the parties a
proposed decision and order pursuant
to § 725.418 of this part.
§ 725.418

Proposed decision and order.

(a) Within 20 days after the
termination of all informal conference
proceedings, or, if no informal
conference is held, at the conclusion of
the period permitted by § 725.410(b) for
the submission of evidence, the district
director shall issue a proposed decision
and order. A proposed decision and
order is a document, issued by the
district director after the evidentiary
development of the claim is completed
and all contested issues, if any, are
joined, which purports to resolve a
claim on the basis of the evidence
submitted to or obtained by the district
director. A proposed decision and order
shall be considered a final adjudication
of a claim only as provided in § 725.419.
A proposed decision and order may be
issued by the district director at any
time during the adjudication of any
claim if:
(1) Issuance is authorized or required
by this part; or,

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(2) The district director determines
that its issuance will expedite the
adjudication of the claim.
(b) A proposed decision and order
shall contain findings of fact and
conclusions of law. It shall be served on
all parties to the claim by certified mail.
(c) The proposed decision and order
shall contain a notice of the right of any
interested party to request a formal
hearing before the Office of
Administrative Law Judges. If the
proposed decision and order is a denial
of benefits, and the claimant has
previously filed a request for a hearing,
the proposed decision and order shall
notify the claimant that the case will be
referred for a hearing pursuant to the
previous request unless the claimant
notifies the district director that he no
longer desires a hearing. If the proposed
decision and order is an award of
benefits, and the designated responsible
operator has previously filed a request
for a hearing, the proposed decision and
order shall notify the operator that the
case will be referred for a hearing
pursuant to the previous request unless
the operator notifies the district director
that it no longer desires a hearing.
(d) The proposed decision and order
shall reflect the district director’s final
designation of the responsible operator
liable for the payment of benefits. No
operator may be finally designated as
the responsible operator unless it has
received notification of its potential
liability pursuant to § 725.407, and the
opportunity to submit additional
evidence pursuant to § 725.410. The
district director shall dismiss, as parties
to the claim, all other potentially liable
operators that received notification
pursuant to § 725.407 and that were not
previously dismissed pursuant to
§ 725.410(a)(3).
§ 725.419 Response to proposed decision
and order.

(a) Within 30 days after the date of
issuance of a proposed decision and
order, any party may, in writing, request
a revision of the proposed decision and
order or a hearing. If a hearing is
requested, the district director shall
refer the claim to the Office of
Administrative Law Judges (see
§ 725.421).
(b) Any response made by a party to
a proposed decision and order shall
specify the findings and conclusions
with which the responding party
disagrees, and shall be served on the
district director and all other parties to
the claim.
(c) If a timely request for revision of
a proposed decision and order is made,
the district director may amend the
proposed decision and order, as

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circumstances require, and serve the
revised proposed decision and order on
all parties or take such other action as
is appropriate. If a revised proposed
decision and order is issued, each party
to the claim shall have 30 days from the
date of issuance of that revised
proposed decision and order within
which to request a hearing.
(d) If no response to a proposed
decision and order is sent to the district
director within the period described in
paragraph (a) of this section, or if no
response to a revised proposed decision
and order is sent to the district director
within the period described in
paragraph (c) of this section, the
proposed decision and order shall
become a final decision and order,
which is effective upon the expiration of
the applicable 30-day period. Once a
proposed decision and order or revised
proposed decision and order becomes
final and effective, all rights to further
proceedings with respect to the claim
shall be considered waived, except as
provided in § 725.310.
§ 725.420

Initial determinations.

(a) Section 9501(d)(1)(A)(1) of the
Internal Revenue Code (26 U.S.C.)
provides that the Black Lung Disability
Trust Fund shall begin the payment of
benefits on behalf of an operator in any
case in which the operator liable for
such payments has not commenced
payment of such benefits within 30 days
after the date of an initial determination
of eligibility by the Secretary. For claims
filed on or after January 1, 1982, the
payment of such interim benefits from
the fund is limited to benefits accruing
after the date of such initial
determination.
(b) Except as provided in § 725.415,
after the district director has determined
that a claimant is eligible for benefits,
on the basis of all evidence submitted
by a claimant and operator, and has
determined that a hearing will be
necessary to resolve the claim, the
district director shall in writing so
inform the parties and direct the
operator to begin the payment of
benefits to the claimant in accordance
with § 725.522. The date on which this
writing is sent to the parties shall be
considered the date of initial
determination of the claim.
(c) If a notified operator refuses to
commence payment of a claim within
30 days from the date on which an
initial determination is made under this
section, benefits shall be paid by the
fund to the claimant in accordance with
§ 725.522, and the operator shall be
liable to the fund, if such operator is
determined liable for the claim, for all
benefits paid by the fund on behalf of

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such operator, and, in addition, such
penalties and interest as are appropriate.
§ 725.421 Referral of a claim to the Office
of Administrative Law Judges.

(a) In any claim for which a formal
hearing is requested or ordered, and
with respect to which the district
director has completed evidentiary
development and adjudication without
having resolved all contested issues, the
district director shall refer the claim to
the Office of Administrative Law Judges
for a hearing.
(b) In any case referred to the Office
of Administrative Law Judges under this
section, the district director shall
transmit to that office the following
documents, which shall be placed in the
record at the hearing subject to the
objection of any party:
(1) Copies of the claim form or forms;
(2) Any statement, document, or
pleading submitted by a party to the
claim;
(3) A copy of the notification to an
operator of its possible liability for the
claim, and any schedule for the
submission of additional evidence
issued pursuant to § 725.410 designating
a potentially liable operator as the
responsible operator;
(4) All medical evidence submitted to
the district director under this part by
the claimant and the potentially liable
operator designated as the responsible
operator in the proposed decision and
order issued pursuant to § 725.418, or
the fund, as appropriate, subject to the
limitations of § 725.414 of this part; this
evidence shall include the results of any
medical examination or test conducted
pursuant to § 725.406, and all evidence
relevant to the liability of the
responsible operator submitted to the
district director under this part;
(5) Any written stipulation of law or
fact or stipulation of contested and
uncontested issues entered into by the
parties;
(6) Any pertinent forms submitted to
the district director;
(7) The statement by the district
director of contested and uncontested
issues in the claim; and
(8) The district director’s initial
determination of eligibility or other
documents necessary to establish the
right of the fund to reimbursement, if
appropriate. Copies of the transmittal
notice shall also be sent to all parties to
the claim by regular mail.
(c) A party may at any time request
and obtain from the district director
copies of documents transmitted to the
Office of Administrative Law Judges
under paragraph (b) of this section. If
the party has previously been provided
with such documents, additional copies

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§ 725.452

may be sent to the party upon the
payment of a copying fee to be
determined by the district director.
§ 725.422

Legal assistance.

The Secretary or his or her designee
may, upon request, provide a claimant
with legal assistance in processing a
claim under the Act. Such assistance
may be made available to a claimant in
the discretion of the Solicitor of Labor
or his or her designee at any time prior
to or during the time in which the claim
is being adjudicated and shall be
furnished without charge to the
claimant. Representation of a claimant
in adjudicatory proceedings shall not be
provided by the Department of Labor
unless it is determined by the Solicitor
of Labor that such representation is in
the best interests of the black lung
benefits program. In no event shall
representation be provided to a claimant
in a claim with respect to which the
claimant’s interests are adverse to those
of the Secretary of Labor or the fund.
§ 725.423

Extensions of time.

Except for the 30-day time limit set
forth in § 725.419, any of the time
periods set forth in this subpart may be
extended, for good cause shown, by
filing a request for an extension with the
district director prior to the expiration
of the time period.
Subpart F—Hearings
§ 725.450

Right to a hearing.

Any party to a claim (see § 725.360)
shall have a right to a hearing
concerning any contested issue of fact or
law unresolved by the district director.
There shall be no right to a hearing until
the processing and adjudication of the
claim by the district director has been
completed. There shall be no right to a
hearing in a claim with respect to which
a determination of the claim made by
the district director has become final
and effective in accordance with this
part.
§ 725.451

Request for hearing.

After the completion of proceedings
before the district director, or as is
otherwise indicated in this part, any
party may in writing request a hearing
on any contested issue of fact or law
(see § 725.419). A district director may
on his or her own initiative refer a case
for hearing. If a hearing is requested, or
if a district director determines that a
hearing is necessary to the resolution of
any issue, the claim shall be referred to
the Chief Administrative Law Judge for
a hearing under § 725.421.

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Type of hearing; parties.

(a) A hearing held under this part
shall be conducted by an administrative
law judge designated by the Chief
Administrative Law Judge. Except as
otherwise provided by this part, all
hearings shall be conducted in
accordance with the provisions of 5
U.S.C. 554 et seq.
(b) All parties to a claim shall be
permitted to participate fully at a
hearing held in connection with such
claim.
(c) A full evidentiary hearing need not
be conducted if a party moves for
summary judgment and the
administrative law judge determines
that there is no genuine issue as to any
material fact and that the moving party
is entitled to the relief requested as a
matter of law. All parties shall be
entitled to respond to the motion for
summary judgment prior to decision
thereon.
(d) If the administrative law judge
believes that an oral hearing is not
necessary (for any reason other than on
motion for summary judgment), the
judge shall notify the parties by written
order and allow at least 30 days for the
parties to respond. The administrative
law judge shall hold the oral hearing if
any party makes a timely request in
response to the order.
§ 725.453

Notice of hearing.

All parties shall be given at least 30
days written notice of the date and place
of a hearing and the issues to be
resolved at the hearing. Such notice
shall be sent to each party or
representative by certified mail.
§ 725.454 Time and place of hearing;
transfer of cases.

(a) The Chief Administrative Law
Judge shall assign a definite time and
place for a formal hearing, and shall,
where possible, schedule the hearing to
be held at a place within 75 miles of the
claimant’s residence unless an alternate
location is requested by the claimant.
(b) If the claimant’s residence is not
in any State, the Chief Administrative
Law Judge may, in his or her discretion,
schedule the hearing in the country of
the claimant’s residence.
(c) The Chief Administrative Law
Judge or the administrative law judge
assigned the case may in his or her
discretion direct that a hearing with
respect to a claim shall begin at one
location and then later be reconvened at
another date and place.
(d) The Chief Administrative Law
Judge or administrative law judge
assigned the case may change the time
and place for a hearing, either on his or
her own motion or for good cause

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shown by a party. The administrative
law judge may adjourn or postpone the
hearing for good cause shown, at any
time prior to the mailing to the parties
of the decision in the case. Unless
otherwise agreed, at least 10 days notice
shall be given to the parties of any
change in the time or place of hearing.
(e) The Chief Administrative Law
Judge may for good cause shown
transfer a case from one administrative
law judge to another.
§ 725.455

Hearing procedures; generally.

(a) General. The purpose of any
hearing conducted under this subpart
shall be to resolve contested issues of
fact or law. Except as provided in
§ 725.421(b)(8), any findings or
determinations made with respect to a
claim by a district director shall not be
considered by the administrative law
judge.
(b) Evidence. The administrative law
judge shall at the hearing inquire fully
into all matters at issue, and shall not
be bound by common law or statutory
rules of evidence, or by technical or
formal rules of procedure, except as
provided by 5 U.S.C. 554 and this
subpart. The administrative law judge
shall receive into evidence the
testimony of the witnesses and parties,
the evidence submitted to the Office of
Administrative Law Judges by the
district director under § 725.421, and
such additional evidence as may be
submitted in accordance with the
provisions of this subpart. The
administrative law judge may entertain
the objections of any party to the
evidence submitted under this section.
(c) Procedure. The conduct of the
hearing and the order in which
allegations and evidence shall be
presented shall be within the discretion
of the administrative law judge and
shall afford the parties an opportunity
for a fair hearing.
(d) Oral argument and written
allegations. The parties, upon request,
may be allowed a reasonable time for
the presentation of oral argument at the
hearing. Briefs or other written
statements or allegations as to facts or
law may be filed by any party with the
permission of the administrative law
judge. Copies of any brief or other
written statement shall be filed with the
administrative law judge and served on
all parties by the submitting party.
§ 725.456 Introduction of documentary
evidence.

(a) All documents transmitted to the
Office of Administrative Law Judges
under § 725.421 shall be placed into
evidence by the administrative law
judge, subject to objection by any party.

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(b)(1) Documentary evidence
pertaining to the liability of a
potentially liable operator and/or the
identification of a responsible operator
which was not submitted to the district
director shall not be admitted into the
hearing record in the absence of
extraordinary circumstances. Medical
evidence in excess of the limitations
contained in § 725.414 shall not be
admitted into the hearing record in the
absence of good cause.
(2) Subject to the limitations in
paragraph (b)(1) of this section, any
other documentary material, including
medical reports, which was not
submitted to the district director, may
be received in evidence subject to the
objection of any party, if such evidence
is sent to all other parties at least 20
days before a hearing is held in
connection with the claim.
(3) Documentary evidence, which is
not exchanged with the parties in
accordance with this paragraph, may be
admitted at the hearing with the written
consent of the parties or on the record
at the hearing, or upon a showing of
good cause why such evidence was not
exchanged in accordance with this
paragraph. If documentary evidence is
not exchanged in accordance with
paragraph (b)(2) of this section and the
parties do not waive the 20-day
requirement or good cause is not shown,
the administrative law judge shall either
exclude the late evidence from the
record or remand the claim to the
district director for consideration of
such evidence.
(4) A medical report which is not
made available to the parties in
accordance with paragraph (b)(2) of this
section shall not be admitted into
evidence in any case unless the hearing
record is kept open for at least 30 days
after the hearing to permit the parties to
take such action as each considers
appropriate in response to such
evidence. If, in the opinion of the
administrative law judge, evidence is
withheld from the parties for the
purpose of delaying the adjudication of
the claim, the administrative law judge
may exclude such evidence from the
hearing record and close the record at
the conclusion of the hearing.
(c) Subject to paragraph (b) of this
section, documentary evidence which
the district director excludes from the
record, and the objections to such
evidence, may be submitted by the
parties to the administrative law judge,
who shall independently determine
whether the evidence shall be admitted.
(1) If the evidence is admitted, the
administrative law judge may, in his or
her discretion, remand the claim to the

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district director for further
consideration.
(2) If the evidence is admitted, the
administrative law judge shall afford the
opposing party or parties the
opportunity to develop such additional
documentary evidence as is necessary to
protect the right of cross-examination.
(d) All medical records and reports
submitted by any party shall be
considered by the administrative law
judge in accordance with the quality
standards contained in part 718 of this
subchapter.
(e) If the administrative law judge
concludes that the complete pulmonary
evaluation provided pursuant to
§ 725.406, or any part thereof, fails to
comply with the applicable quality
standards, or fails to address the
relevant conditions of entitlement (see
§ 725.202(d)(2)(i) through (iv)) in a
manner which permits resolution of the
claim, the administrative law judge
shall, in his or her discretion, remand
the claim to the district director with
instructions to develop only such
additional evidence as is required, or
allow the parties a reasonable time to
obtain and submit such evidence, before
the termination of the hearing.
§ 725.457

Witnesses.

(a) Witnesses at the hearing shall
testify under oath or affirmation. The
administrative law judge and the parties
may question witnesses with respect to
any matters relevant and material to any
contested issue. Any party who intends
to present the testimony of an expert
witness at a hearing, including any
physician, regardless of whether the
physician has previously prepared a
medical report, shall so notify all other
parties to the claim at least 10 days
before the hearing. The failure to give
notice of the appearance of an expert
witness in accordance with this
paragraph, unless notice is waived by
all parties, shall preclude the
presentation of testimony by such
expert witness.
(b) No person shall be required to
appear as a witness in any proceeding
before an administrative law judge at a
place more than 100 miles from his or
her place of residence, unless the lawful
mileage and witness fee for 1 day’s
attendance is paid in advance of the
hearing date.
(c) No person shall be permitted to
testify as a witness at the hearing, or
pursuant to deposition or interrogatory
under § 725.458, unless that person
meets the requirements of § 725.414(c).
(1) In the case of a witness offering
testimony relevant to the liability of the
responsible operator, in the absence of
extraordinary circumstances, the

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witness must have been identified as a
potential hearing witness while the
claim was pending before the district
director.
(2) In the case of a physician offering
testimony relevant to the physical
condition of the miner, such physician
must have prepared a medical report.
Alternatively, in the absence of a
showing of good cause under
§ 725.456(b)(1) of this part, a physician
may offer testimony relevant to the
physical condition of the miner only to
the extent that the party offering the
physician’s testimony has submitted
fewer medical reports than permitted by
§ 725.414. Such physician’s opinion
shall be considered a medical report
subject to the limitations of § 725.414.
(d) A physician whose testimony is
permitted under this section may testify
as to any other medical evidence of
record, but shall not be permitted to
testify as to any medical evidence
relevant to the miner’s condition that is
not admissible.
§ 725.458

Depositions; interrogatories.

The testimony of any witness or party
may be taken by deposition or
interrogatory according to the rules of
practice of the Federal district court for
the judicial district in which the case is
pending (or of the U.S. District Court for
the District of Columbia if the case is
pending in the District or outside the
United States), except that at least 30
days prior notice of any deposition shall
be given to all parties unless such notice
is waived. No post-hearing deposition or
interrogatory shall be permitted unless
authorized by the administrative law
judge upon the motion of a party to the
claim. The testimony of any physician
which is taken by deposition shall be
subject to the limitations on the scope
of the testimony contained in
§ 725.457(d).
§ 725.459

Witness fees.

(a) A witness testifying at a hearing
before an administrative law judge, or
whose deposition is taken, shall receive
the same fees and mileage as witnesses
in courts of the United States. If the
witness is an expert, he or she shall be
entitled to an expert witness fee. Except
as provided in paragraphs (b) and (c) of
this section, such fees shall be paid by
the proponent of the witness.
(b) If the witness’ proponent does not
intend to call the witness to appear at
a hearing or deposition, any other party
may subpoena the witness for crossexamination. The administrative law
judge shall authorize the least intrusive
and expensive means of crossexamination as he deems appropriate
and necessary to the full and true

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disclosure of facts. If such witness is
required to attend the hearing, give a
deposition or respond to interrogatories
for cross-examination purposes, the
proponent of the witness shall pay the
witness’ fee. If the claimant is the
proponent of the witness whose crossexamination is sought, and
demonstrates, within time limits
established by the administrative law
judge, that he would be deprived of
ordinary and necessary living expenses
if required to pay the witness fee and
mileage necessary to produce that
witness for cross-examination, the
administrative law judge shall apportion
the costs of such cross-examination
among the parties to the case. The
administrative law judge shall not
apportion any costs against the fund in
a case in which the district director has
designated a responsible operator,
except that the fund shall remain liable
for any costs associated with the crossexamination of the physician who
performed the complete pulmonary
evaluation pursuant to § 725.406.
(c) If a claimant is determined entitled
to benefits, there may be assessed as
costs against a responsible operator, if
any, or the fund, fees and mileage for
necessary witnesses attending the
hearing at the request of the claimant.
Both the necessity for the witness and
the reasonableness of the fees of any
expert witness shall be approved by the
administrative law judge. The amounts
awarded against a responsible operator
or the fund as attorney’s fees, or costs,
fees and mileage for witnesses, shall not
in any respect affect or diminish
benefits payable under the Act.
(d) A claimant shall be considered to
be deprived of funds required for
ordinary and necessary living expenses
for purposes of paragraph (b) of this
section where payment of the projected
fee and mileage would meet the
standards set forth at 20 CFR 404.508.
§ 725.460

Consolidated hearings.

When two or more hearings are to be
held, and the same or substantially
similar evidence is relevant and
material to the matters at issue at each
such hearing, the Chief Administrative
Law Judge may, upon motion by any
party or on his or her own motion, order
that a consolidated hearing be
conducted. Where consolidated
hearings are held, a single record of the
proceedings shall be made and the
evidence introduced in one claim may
be considered as introduced in the
others, and a separate or joint decision
shall be made, as appropriate.

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§ 725.461 Waiver of right to appear and
present evidence.

(a) If all parties waive their right to
appear before the administrative law
judge, it shall not be necessary for the
administrative law judge to give notice
of, or conduct, an oral hearing. A waiver
of the right to appear shall be made in
writing and filed with the Chief
Administrative Law Judge or the
administrative law judge assigned to
hear the case. Such waiver may be
withdrawn by a party for good cause
shown at any time prior to the mailing
of the decision in the claim. Even
though all of the parties have filed a
waiver of the right to appear, the
administrative law judge may,
nevertheless, after giving notice of the
time and place, conduct a hearing if he
or she believes that the personal
appearance and testimony of the party
or parties would assist in ascertaining
the facts in issue in the claim. Where a
waiver has been filed by all parties, and
they do not appear before the
administrative law judge personally or
by representative, the administrative
law judge shall make a record of the
relevant documentary evidence
submitted in accordance with this part
and any further written stipulations of
the parties. Such documents and
stipulations shall be considered the
evidence of record in the case and the
decision shall be based upon such
evidence.
(b) Except as provided in § 725.456(a),
the unexcused failure of any party to
attend a hearing shall constitute a
waiver of such party’s right to present
evidence at the hearing, and may result
in a dismissal of the claim (see
§ 725.465).
§ 725.462 Withdrawal of controversion of
issues set for formal hearing; effect.

A party may, on the record, withdraw
his or her controversion of any or all
issues set for hearing. If a party
withdraws his or her controversion of
all issues, the administrative law judge
shall remand the case to the district
director for the issuance of an
appropriate order.
§ 725.463 Issues to be resolved at hearing;
new issues.

(a) Except as otherwise provided in
this section, the hearing shall be
confined to those contested issues
which have been identified by the
district director (see § 725.421) or any
other issue raised in writing before the
district director.
(b) An administrative law judge may
consider a new issue only if such issue
was not reasonably ascertainable by the
parties at the time the claim was before

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the district director. Such new issue
may be raised upon application of any
party, or upon an administrative law
judge’s own motion, with notice to all
parties, at any time after a claim has
been transmitted by the district director
to the Office of Administrative Law
Judges and prior to decision by an
administrative law judge. If a new issue
is raised, the administrative law judge
may, in his or her discretion, either
remand the case to the district director
with instructions for further
proceedings, hear and resolve the new
issue, or refuse to consider such new
issue.
(c) If a new issue is to be considered
by the administrative law judge, a party
may, upon request, be granted an
appropriate continuance.
§ 725.464

Record of hearing.

All hearings shall be open to the
public and shall be mechanically or
stenographically reported. All evidence
upon which the administrative law
judge relies for decision shall be
contained in the transcript of testimony,
either directly or by appropriate
reference. All medical reports, exhibits,
and any other pertinent document or
record, either in whole or in material
part, introduced as evidence, shall be
marked for identification and
incorporated into the record.
§ 725.465

Dismissals for cause.

(a) The administrative law judge may,
at the request of any party, or on his or
her own motion, dismiss a claim:
(1) Upon the failure of the claimant or
his or her representative to attend a
hearing without good cause;
(2) Upon the failure of the claimant to
comply with a lawful order of the
administrative law judge; or
(3) Where there has been a prior final
adjudication of the claim or defense to
the claim under the provisions of this
subchapter and no new evidence is
submitted (except as provided in part
727 of this subchapter; see § 725.4(d)).
(b) A party who is not a proper party
to the claim (see § 725.360) shall be
dismissed by the administrative law
judge. The administrative law judge
shall not dismiss the operator
designated as the responsible operator
by the district director, except upon the
motion or written agreement of the
Director.
(c) In any case where a dismissal of
a claim, defense, or party is sought, the
administrative law judge shall issue an
order to show cause why the dismissal
should not be granted and afford all
parties a reasonable time to respond to
such order. After the time for response
has expired, the administrative law

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judge shall take such action as is
appropriate to rule on the dismissal,
which may include an order dismissing
the claim, defense or party.
(d) No claim shall be dismissed in a
case with respect to which payments
prior to final adjudication have been
made to the claimant in accordance
with § 725.522, except upon the motion
or written agreement of the Director.
§ 725.466

Order of dismissal.

(a) An order dismissing a claim shall
be served on the parties in accordance
with § 725.478. The dismissal of a claim
shall have the same effect as a decision
and order disposing of the claim on its
merits, except as provided in paragraph
(b) of this section. Such order shall
advise the parties of their right to
request review by the Benefits Review
Board.
(b) Where the Chief Administrative
Law Judge or the presiding
administrative law judge issues a
decision and order dismissing the claim
after a show cause proceeding, the
district director shall terminate any
payments being made to the claimant
under § 725.522, and the order of
dismissal shall, if appropriate, order the
claimant to reimburse the fund for all
benefits paid to the claimant.
§ 725.475

Termination of hearings.

Hearings are officially terminated
when all the evidence has been
received, witnesses heard, pleadings
and briefs submitted to the
administrative law judge, and the
transcript of the proceedings has been
printed and delivered to the
administrative law judge.
§ 725.476

Issuance of decision and order.

Within 20 days after the official
termination of the hearing (see
§ 725.475), the administrative law judge
shall issue a decision and order with
respect to the claim making an award to
the claimant, rejecting the claim, or
taking such other action as is
appropriate.
§ 725.477 Form and contents of decision
and order.

(a) Orders adjudicating claims for
benefits shall be designated by the term
‘‘decision and order’’ or ‘‘supplemental
decision and order’’ as appropriate,
followed by a descriptive phrase
designating the particular type of order,
such as ‘‘award of benefits,’’ ‘‘rejection
of claim,’’ ‘‘suspension of benefits,’’
‘‘modification of award.’’
(b) A decision and order shall contain
a statement of the basis of the order, the
names of the parties, findings of fact,
conclusions of law, and an award,
rejection or other appropriate paragraph

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§ 725.481 Right to appeal to the Benefits
Review Board.

containing the action of the
administrative law judge, his or her
signature and the date of issuance. A
decision and order shall be based upon
the record made before the
administrative law judge.
§ 725.478 Filing and service of decision
and order.

On the date of issuance of a decision
and order under § 725.477, the
administrative law judge shall serve the
decision and order on all parties to the
claim by certified mail. On the same
date, the original record of the claim
shall be sent to the DCMWC in
Washington, D.C. Upon receipt by the
DCMWC, the decision and order shall
be considered to be filed in the office of
the district director, and shall become
effective on that date.
§ 725.479

Finality of decisions and orders.

(a) A decision and order shall become
effective when filed in the office of the
district director (see § 725.478), and
unless proceedings for suspension or
setting aside of such order are instituted
within 30 days of such filing, the order
shall become final at the expiration of
the 30th day after such filing (see
§ 725.481).
(b) Any party may, within 30 days
after the filing of a decision and order
under § 725.478, request a
reconsideration of such decision and
order by the administrative law judge.
The procedures to be followed in the
reconsideration of a decision and order
shall be determined by the
administrative law judge.
(c) The time for appeal to the Benefits
Review Board shall be suspended
during the consideration of a request for
reconsideration. After the
administrative law judge has issued and
filed a denial of the request for
reconsideration, or a revised decision
and order in accordance with this part,
any dissatisfied party shall have 30 days
within which to institute proceedings to
set aside the decision and order on
reconsideration.
(d) Regardless of any defect in service,
actual receipt of the decision is
sufficient to commence the 30-day
period for requesting reconsideration or
appealing the decision.
§ 725.480
orders.

Modification of decisions and

A party who is dissatisfied with a
decision and order which has become
final in accordance with § 725.479 may
request a modification of the decision
and order if the conditions set forth in
§ 725.310 are met.

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Any party dissatisfied with a decision
and order issued by an administrative
law judge may, before the decision and
order becomes final (see § 725.479),
appeal the decision and order to the
Benefits Review Board. A notice of
appeal shall be filed with the Board.
Proceedings before the Board shall be
conducted in accordance with part 802
of this title.
§ 725.482

Judicial review.

(a) Any person adversely affected or
aggrieved by a final order of the Benefits
Review Board may obtain a review of
that order in the U.S. court of appeals
for the circuit in which the injury
occurred by filing in such court within
60 days following the issuance of such
Board order a written petition praying
that the order be modified or set aside.
The payment of the amounts required
by an award shall not be stayed pending
final decision in any such proceeding
unless ordered by the court. No stay
shall be issued unless the court finds
that irreparable injury would otherwise
ensue to an operator or carrier.
(b) The Director, Office of Workers’
Compensation Program, as designee of
the Secretary of Labor responsible for
the administration and enforcement of
the Act, shall be considered the proper
party to appear and present argument on
behalf of the Secretary of Labor in all
review proceedings conducted pursuant
to this part and the Act, either as
petitioner or respondent.
§ 725.483 Costs in proceedings brought
without reasonable grounds.

If a United States court having
jurisdiction of proceedings regarding
any claim or final decision and order,
determines that the proceedings have
been instituted or continued before such
court without reasonable ground, the
costs of such proceedings shall be
assessed against the party who has so
instituted or continued such
proceedings.
Subpart G—Responsible Coal Mine
Operators
§ 725.490

Statutory provisions and scope.

(a) One of the major purposes of the
black lung benefits amendments of 1977
was to provide a more effective means
of transferring the responsibility for the
payment of benefits from the Federal
government to the coal industry with
respect to claims filed under this part.
In furtherance of this goal, a Black Lung
Disability Trust Fund financed by the
coal industry was established by the
Black Lung Benefits Revenue Act of
1977. The primary purpose of the Fund

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is to pay benefits with respect to all
claims in which the last coal mine
employment of the miner on whose
account the claim was filed occurred
before January 1, 1970. With respect to
most claims in which the miner’s last
coal mine employment occurred after
January 1, 1970, individual coal mine
operators will be liable for the payment
of benefits. The 1981 amendments to the
Act relieved individual coal mine
operators from the liability for payment
of certain special claims involving coal
mine employment on or after January 1,
1970, where the claim was previously
denied and subsequently approved
under section 435 of the Act. See
§ 725.496 for a detailed description of
these special claims. Where no such
operator exists or the operator
determined to be liable is in default in
any case, the fund shall pay the benefits
due and seek reimbursement as is
appropriate. See also § 725.420 for the
fund’s role in the payment of interim
benefits in certain contested cases. In
addition, the Black Lung Benefits
Reform Act of 1977 amended certain
provisions affecting the scope of
coverage under the Act and describing
the effects of particular corporate
transactions on the liability of operators.
(b) The provisions of this subpart
define the term ‘‘operator’’ and
prescribe the manner in which the
identity of an operator which may be
liable for the payment of benefits—
referred to herein as a ‘‘responsible
operator’’—will be determined.
§ 725.491

Operator defined.

(a) For purposes of this part, the term
‘‘operator’’ shall include:
(1) Any owner, lessee, or other person
who operates, controls, or supervises a
coal mine, or any independent
contractor performing services or
construction at such mine; or
(2) Any other person who:
(i) Employs an individual in the
transportation of coal or in coal mine
construction in or around a coal mine,
to the extent such individual was
exposed to coal mine dust as a result of
such employment (see § 725.202);
(ii) In accordance with the provisions
of § 725.492, may be considered a
successor operator; or
(iii) Paid wages or a salary, or
provided other benefits, to an individual
in exchange for work as a miner (see
§ 725.202).
(b) The terms ‘‘owner,’’ ‘‘lessee,’’ and
‘‘person’’ shall include any individual,
partnership, association, corporation,
firm, subsidiary of a corporation, or
other organization, as appropriate,
except that an officer of a corporation
shall not be considered an ‘‘operator’’

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for purposes of this part. Following the
issuance of an order awarding benefits
against a corporation that has not
secured its liability for benefits in
accordance with section 423 of the Act
and § 726.4, such order may be enforced
against the president, secretary, or
treasurer of the corporation in
accordance with subpart I of this part.
(c) The term ‘‘independent
contractor’’ shall include any person
who contracts to perform services. Such
contractor’s status as an operator shall
not be contingent upon the amount or
percentage of its work or business
related to activities in or around a mine,
nor upon the number or percentage of
its employees engaged in such activities.
(d) For the purposes of determining
whether a person is or was an operator
that may be found liable for the
payment of benefits under this part,
there shall be a rebuttable presumption
that during the course of an individual’s
employment with such employer, such
individual was regularly and
continuously exposed to coal mine dust
during the course of employment. The
presumption may be rebutted by a
showing that the employee was not
exposed to coal mine dust for significant
periods during such employment.
(e) The operation, control, or
supervision referred to in paragraph
(a)(1) of this section may be exercised
directly or indirectly. Thus, for
example, where a coal mine is leased,
and the lease empowers the lessor to
make decisions with respect to the
terms and conditions under which coal
is to be extracted or prepared, such as,
but not limited to, the manner of
extraction or preparation or the amount
of coal to be produced, the lessor may
be considered an operator. Similarly,
any parent entity or other controlling
business entity may be considered an
operator for purposes of this part,
regardless of the nature of its business
activities.
(f) Neither the United States, nor any
State, nor any instrumentality or agency
of the United States or any State, shall
be considered an operator.
§ 725.492

Successor operator defined.

(a) Any person who, on or after
January 1, 1970, acquired a mine or
mines, or substantially all of the assets
thereof, from a prior operator, or
acquired the coal mining business of
such prior operator, or substantially all
of the assets thereof, shall be considered
a ‘‘successor operator’’ with respect to
any miners previously employed by
such prior operator.
(b) The following transactions shall
also be deemed to create successor
operator liability:

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(1) If an operator ceases to exist by
reason of a reorganization which
involves a change in identity, form, or
place of business or organization,
however effected;
(2) If an operator ceases to exist by
reason of a liquidation into a parent or
successor corporation; or
(3) If an operator ceases to exist by
reason of a sale of substantially all its
assets, or as a result of merger,
consolidation, or division.
(c) In any case in which a transaction
specified in paragraph (b), or
substantially similar to a transaction
specified in paragraph (b), took place,
the resulting entity shall be considered
a ‘‘successor operator’’ with respect to
any miners previously employed by
such prior operator.
(d) This section shall not be construed
to relieve a prior operator of any
liability if such prior operator meets the
conditions set forth in § 725.494. If the
prior operator does not meet the
conditions set forth in § 725.494, the
following provisions shall apply:
(1) In any case in which a prior
operator transferred a mine or mines, or
substantially all of the assets thereof, to
a successor operator, or sold its coal
mining business or substantially all of
the assets thereof, to a successor
operator, and then ceased to exist
within the terms of paragraph (b), the
successor operator as identified in
paragraph (a) shall be primarily liable
for the payment of benefits to any
miners previously employed by such
prior operator.
(2) In any case in which a prior
operator transferred mines, or
substantially all of the assets thereof, to
more than one successor operator, the
successor operator that most recently
acquired a mine or mines or assets from
the prior operator shall be primarily
liable for the payment of benefits to any
miners previously employed by such
prior operator.
(3) In any case in which a mine or
mines, or substantially all the assets
thereof, have been transferred more than
once, the successor operator that most
recently acquired such mine or mines or
assets shall be primarily liable for the
payment of benefits to any miners
previously employed by the original
prior operator. If the most recent
successor operator does not meet the
criteria for a potentially liable operator
set forth in § 725.494, the next most
recent successor operator shall be liable.
(e) An ‘‘acquisition,’’ for purposes of
this section, shall include any
transaction by which title to the mine or
mines, or substantially all of the assets
thereof, or the right to extract or prepare
coal at such mine or mines, becomes

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vested in a person other than the prior
operator.
725.493

Employment relationship defined.

(a)(1) In determining the identity of a
responsible operator under this part, the
terms ‘‘employ’’ and ‘‘employment’’
shall be construed as broadly as
possible, and shall include any
relationship under which an operator
retains the right to direct, control, or
supervise the work performed by a
miner, or any other relationship under
which an operator derives a benefit from
the work performed by a miner. Any
individuals who participate with one or
more persons in the mining of coal,
such as owners, proprietors, partners,
and joint venturers, whether they are
compensated by wages, salaries, piece
rates, shares, profits, or by any other
means, shall be deemed employees. It is
the specific intention of this paragraph
to disregard any financial arrangement
or business entity devised by the actual
owners or operators of a coal mine or
coal mine-related enterprise to avoid the
payment of benefits to miners who,
based upon the economic reality of their
relationship to this enterprise, are, in
fact, employees of the enterprise.
(2) The payment of wages or salary
shall be prima facie evidence of the
right to direct, control, or supervise an
individual’s work. The Department
intends that where the operator who
paid a miner’s wages or salary meets the
criteria for a potentially liable operator
set forth in § 725.494, that operator shall
be primarily liable for the payment of
any benefits due the miner as a result of
such employment. The absence of such
payment, however, will not negate the
existence of an employment
relationship. Thus, the Department also
intends that where the person who paid
a miner’s wages may not be considered
a potentially liable operator, any other
operator who retained the right to
direct, control or supervise the work
performed by the miner, or who
benefitted from such work, may be
considered a potentially liable operator.
(b) This paragraph contains examples
of relationships that shall be considered
employment relationships for purposes
of this part. The list is not intended to
be exclusive.
(1) In any case in which an operator
may be considered a successor operator,
as determined in accordance with
§ 725.492, any employment with a prior
operator shall also be deemed to be
employment with the successor
operator. In a case in which the miner
was not independently employed by the
successor operator, the prior operator
shall remain primarily liable for the
payment of any benefits based on the

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miner’s employment with the prior
operator. In a case in which the miner
was independently employed by the
successor operator after the transaction
giving rise to successor operator
liability, the successor operator shall be
primarily liable for the payment of any
benefits.
(2) In any case in which the operator
which directed, controlled or
supervised the miner is no longer in
business and such operator was a
subsidiary of a parent company, a
member of a joint venture, a partner in
a partnership, or was substantially
owned or controlled by another
business entity, such parent entity or
other member of a joint venture or
partner or controlling business entity
may be considered the employer of any
employees of such operator.
(3) In any claim in which the operator
which directed, controlled or
supervised the miner is a lessee, the
lessee shall be considered primarily
liable for the claim. The liability of the
lessor may be established only after it
has been determined that the lessee is
unable to provide for the payment of
benefits to a successful claimant. In any
case involving the liability of a lessor for
a claim arising out of employment with
a lessee, any determination of lessor
liability shall be made on the basis of
the facts present in the case in
accordance with the following
considerations:
(i) Where a coal mine is leased, and
the lease empowers the lessor to make
decisions with respect to the terms and
conditions under which coal is to be
extracted or prepared, such as, but not
limited to, the manner of extraction or
preparation or the amount of coal to be
produced, the lessor shall be considered
the employer of any employees of the
lessee.
(ii) Where a coal mine is leased to a
self-employed operator, the lessor shall
be considered the employer of such selfemployed operator and its employees if
the lease or agreement is executed or
renewed after August 18, 1978 and such
lease or agreement does not require the
lessee to guarantee the payment of
benefits which may be required under
this part and part 726 of this subchapter.
(iii) Where a lessor previously
operated a coal mine, it may be
considered an operator with respect to
employees of any lessee of such mine,
particularly where the leasing
arrangement was executed or renewed
after August 18, 1978 and does not
require the lessee to secure benefits
provided by the Act.
(4) A self-employed operator,
depending upon the facts of the case,
may be considered an employee of any

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80083

other operator, person, or business
entity which substantially controls,
supervises, or is financially responsible
for the activities of the self-employed
operator.
§ 725.494

Potentially liable operators.

An operator may be considered a
‘‘potentially liable operator’’ with
respect to a claim for benefits under this
part if each of the following conditions
is met:
(a) The miner’s disability or death
arose at least in part out of employment
in or around a mine or other facility
during a period when the mine or
facility was operated by such operator,
or by a person with respect to which the
operator may be considered a successor
operator. For purposes of this section,
there shall be a rebuttable presumption
that the miner’s disability or death arose
in whole or in part out of his or her
employment with such operator. Unless
this presumption is rebutted, the
responsible operator shall be liable to
pay benefits to the claimant on account
of the disability or death of the miner in
accordance with this part. A miner’s
pneumoconiosis, or disability or death
therefrom, shall be considered to have
arisen in whole or in part out of work
in or around a mine if such work
caused, contributed to or aggravated the
progression or advancement of a miner’s
loss of ability to perform his or her
regular coal mine employment or
comparable employment.
(b) The operator, or any person with
respect to which the operator may be
considered a successor operator, was an
operator for any period after June 30,
1973.
(c) The miner was employed by the
operator, or any person with respect to
which the operator may be considered
a successor operator, for a cumulative
period of not less than one year
(§ 725.101(a)(32)).
(d) The miner’s employment with the
operator, or any person with respect to
which the operator may be considered
a successor operator, included at least
one working day (§ 725.101(a)(32)) after
December 31, 1969.
(e) The operator is capable of
assuming its liability for the payment of
continuing benefits under this part. An
operator will be deemed capable of
assuming its liability for a claim if one
of the following three conditions is met:
(1) The operator obtained a policy or
contract of insurance under section 423
of the Act and part 726 of this
subchapter that covers the claim, except
that such policy shall not be considered
sufficient to establish the operator’s
capability of assuming liability if the
insurance company has been declared

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insolvent and its obligations for the
claim are not otherwise guaranteed;
(2) The operator qualified as a selfinsurer under section 423 of the Act and
part 726 of this subchapter during the
period in which the miner was last
employed by the operator, provided that
the operator still qualifies as a selfinsurer or the security given by the
operator pursuant to § 726.104(b) is
sufficient to secure the payment of
benefits in the event the claim is
awarded; or
(3) The operator possesses sufficient
assets to secure the payment of benefits
in the event the claim is awarded in
accordance with § 725.606.
§ 725.495 Criteria for determining a
responsible operator.

(a)(1) The operator responsible for the
payment of benefits in a claim
adjudicated under this part (the
‘‘responsible operator’’) shall be the
potentially liable operator, as
determined in accordance with
§ 725.494, that most recently employed
the miner.
(2) If more than one potentially liable
operator may be deemed to have
employed the miner most recently, then
the liability for any benefits payable as
a result of such employment shall be
assigned as follows:
(i) First, to the potentially liable
operator that directed, controlled, or
supervised the miner;
(ii) Second, to any potentially liable
operator that may be considered a
successor operator with respect to
miners employed by the operator
identified in paragraph (a)(2)(i) of this
section; and
(iii) Third, to any other potentially
liable operator which may be deemed to
have been the miner’s most recent
employer pursuant to § 725.493.
(3) If the operator that most recently
employed the miner may not be
considered a potentially liable operator,
as determined in accordance with
§ 725.494, the responsible operator shall
be the potentially liable operator that
next most recently employed the miner.
Any potentially liable operator that
employed the miner for at least one day
after December 31, 1969 may be deemed
the responsible operator if no more
recent employer may be considered a
potentially liable operator.
(4) If the miner’s most recent
employment by an operator ended while
the operator was authorized to selfinsure its liability under part 726 of this
title, and that operator no longer
possesses sufficient assets to secure the
payment of benefits, the provisions of
paragraph (a)(3) shall be inapplicable
with respect to any operator that

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employed the miner only before he was
employed by such self-insured operator.
If no operator that employed the miner
after his employment with the selfinsured operator meets the conditions of
§ 725.494, the claim of the miner or his
survivor shall be the responsibility of
the Black Lung Disability Trust Fund.
(b) Except as provided in this section
and § 725.408(a)(3), with respect to the
adjudication of the identity of a
responsible operator, the Director shall
bear the burden of proving that the
responsible operator initially found
liable for the payment of benefits
pursuant to § 725.410 (the ‘‘designated
responsible operator’’) is a potentially
liable operator. It shall be presumed, in
the absence of evidence to the contrary,
that the designated responsible operator
is capable of assuming liability for the
payment of benefits in accordance with
§ 725.494(e).
(c) The designated responsible
operator shall bear the burden of
proving either:
(1) That it does not possess sufficient
assets to secure the payment of benefits
in accordance with § 725.606; or
(2) That it is not the potentially liable
operator that most recently employed
the miner. Such proof must include
evidence that the miner was employed
as a miner after he or she stopped
working for the designated responsible
operator and that the person by whom
he or she was employed is a potentially
liable operator within the meaning of
§ 725.494. In order to establish that a
more recent employer is a potentially
liable operator, the designated
responsible operator must demonstrate
that the more recent employer possesses
sufficient assets to secure the payment
of benefits in accordance with
§ 725.606. The designated responsible
operator may satisfy its burden by
presenting evidence that the owner, if
the more recent employer is a sole
proprietorship; the partners, if the more
recent employer is a partnership; or the
president, secretary, and treasurer, if the
more recent employer is a corporation
that failed to secure the payment of
benefits pursuant to part 726 of this
subchapter, possess assets sufficient to
secure the payment of benefits,
provided such assets may be reached in
a proceeding brought under subpart I of
this part.
(d) In any case referred to the Office
of Administrative Law Judges pursuant
to § 725.421 in which the operator
finally designated as responsible
pursuant to § 725.418(d) is not the
operator that most recently employed
the miner, the record shall contain a
statement from the district director
explaining the reasons for such

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designation. If the reasons include the
most recent employer’s failure to meet
the conditions of § 725.494(e), the
record shall also contain a statement
that the Office has searched the files it
maintains pursuant to part 726, and that
the Office has no record of insurance
coverage for that employer, or of
authorization to self-insure, that meets
the conditions of § 725.494(e)(1) or
(e)(2). Such a statement shall be prima
facie evidence that the most recent
employer is not financially capable of
assuming its liability for a claim. In the
absence of such a statement, it shall be
presumed that the most recent employer
is financially capable of assuming its
liability for a claim.
§ 725.496
fund.

Special claims transferred to the

(a) The 1981 amendments to the Act
amended section 422 of the Act and
transferred liability for payment of
certain special claims from operators
and carriers to the fund. These
provisions apply to claims which were
denied before March 1, 1978, and which
have been or will be approved in
accordance with section 435 of the Act.
(b) Section 402(i) of the Act defines
three classes of denied claims subject to
the transfer provisions:
(1) Claims filed with and denied by
the Social Security Administration
before March 1, 1978;
(2) Claims filed with the Department
of Labor in which the claimant was
notified by the Department of an
administrative or informal denial before
March 1, 1977, and in which the
claimant did not within one year of
such notification either:
(i) Request a hearing; or
(ii) Present additional evidence; or
(iii) Indicate an intention to present
additional evidence; or
(iv) Request a modification or
reconsideration of the denial on the
ground of a change in conditions or
because of a mistake in a determination
of fact;
(3) Claims filed with the Department
of Labor and denied under the law in
effect prior to the enactment of the
Black Lung Benefits Reform Act of 1977,
that is, before March 1, 1978, following
a formal hearing before an
administrative law judge or
administrative review before the
Benefits Review Board or review before
a United States Court of Appeals.
(c) Where more than one claim was
filed with the Social Security
Administration and/or the Department
of Labor prior to March 1, 1978, by or
on behalf of a miner or a surviving
dependent of a miner, unless such
claims were required to be merged by

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the agency’s regulations, the procedural
history of each such claim must be
considered separately to determine
whether the claim is subject to the
transfer of liability provisions.
(d) For a claim filed with and denied
by the Social Security Administration
prior to March 1, 1978, to come within
the transfer provisions, such claim must
have been or must be approved under
the provisions of section 435 of the Act.
No claim filed with and denied by the
Social Security Administration is
subject to the transfer of liability
provisions unless a request was made by
or on behalf of the claimant for review
of such denied claim under section 435.
Such review must have been requested
by the filing of a valid election card or
other equivalent document with the
Social Security Administration in
accordance with section 435(a) and its
implementing regulations at 20 CFR
410.700 through 410.707.
(e) Where a claim filed with the
Department of Labor prior to March 1,
1977, was subjected to repeated
administrative or informal denials, the
last such denial issued during the
pendency of the claim determines
whether the claim is subject to the
transfer of liability provisions.
(f) Where a miner’s claim comes
within the transfer of liability
provisions of the 1981 amendments the
fund is also liable for the payment of
any benefits to which the miner’s
dependent survivors are entitled after
the miner’s death. However, if the
survivor’s entitlement was established
on a separate claim not subject to the
transfer of liability provisions prior to
approval of the miner’s claim under
section 435, the party responsible for
the payment of such survivors’ benefits
shall not be relieved of that
responsibility because the miner’s claim
was ultimately approved and found
subject to the transfer of liability
provisions.
§ 725.497 Procedures in special claims
transferred to the fund.

(a) General. It is the purpose of this
section to define procedures to expedite
the handling and disposition of claims
affected by the benefit liability transfer
provisions of Section 205 of the Black
Lung Benefits Amendments of 1981.
(b) Action by the Department. The
OWCP shall, in accordance with the
criteria contained in § 725.496, review
each claim which is or may be affected
by the provisions of Section 205 of the
Black Lung Benefits Amendments of
1981. Any party to a claim, adjudication
officer, or adjudicative body may
request that such a review be conducted
and that the record be supplemented

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with any additional documentation
necessary for an informed consideration
of the transferability of the claim. Where
the issue of the transferability of the
claim can not be resolved by agreement
of the parties and the evidence of record
is not sufficient for a resolution of the
issue, the hearing record may be
reopened or the case remanded for the
development of the additional evidence
concerning the procedural history of the
claim necessary to such resolution.
Such determinations shall be made on
an expedited basis.
(c) Dismissal of operators. If it is
determined that a coal mine operator or
insurance carrier which previously
participated in the consideration or
adjudication of any claim, may no
longer be found liable for the payment
of benefits to the claimant by reason of
section 205 of the Black Lung Benefits
Amendments of 1981, such operator or
carrier shall be promptly dismissed as a
party to the claim. The dismissal of an
operator or carrier shall be concluded at
the earliest possible time and in no
event shall an operator or carrier
participate as a necessary party in any
claim for which only the fund may be
liable.
(d) Procedure following dismissal of
an operator. After it has been
determined that an operator or carrier
must be dismissed as a party in any
claim in accordance with this section,
the Director shall take such action as is
authorized by the Act to bring about the
proper and expeditious resolution of the
claim in light of all relevant medical
and other evidence. Action to be taken
in this regard by the Director may
include, but is not limited to, the
assignment of the claim to the Black
Lung Disability Trust Fund for the
payment of benefits, the reimbursement
of benefits previously paid by an
operator or carrier if appropriate, the
defense of the claim on behalf of the
fund, or proceedings authorized by
§ 725.310.
(e) Any claimant whose claim has
been subsequently denied in a
modification proceeding will be entitled
to expedited review of the modification
decision. Where a formal hearing was
previously held, the claimant may
waive his right to a further hearing and
ask that a decision be made on the
record of the prior hearing, as
supplemented by any additional
documentary evidence which the
parties wish to introduce and briefs of
the parties, if desired. In any case in
which the claimant waives his right to
a second hearing, a decision and order
must be issued within 30 days of the
date upon which the parties agree the
record has been completed.

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Subpart H—Payment of Benefits
General Provisions
§ 725.501

Payment provisions generally.

The provisions of this subpart govern
the payment of benefits to claimants
whose claims are approved for payment
under section 415 and part C of title IV
of the Act or approved after review
under section 435 of the Act and part
727 of this subchapter (see § 725.4(d)).
§ 725.502 When benefit payments are due;
manner of payment.

(a)(1) Except with respect to benefits
paid by the fund pursuant to an initial
determination issued in accordance
with § 725.418 (see § 725.522), benefits
under the Act shall be paid when they
become due. Benefits shall be
considered due after the issuance of an
effective order requiring the payment of
benefits by a district director,
administrative law judge, Benefits
Review Board, or court, notwithstanding
the pendency of a motion for
reconsideration before an administrative
law judge or an appeal to the Board or
court, except that benefits shall not be
considered due where the payment of
such benefits has been stayed by the
Benefits Review Board or appropriate
court. An effective order shall remain in
effect unless it is vacated by an
administrative law judge on
reconsideration, or, upon review under
section 21 of the LHWCA, by the
Benefits Review Board or an appropriate
court, or is superseded by an effective
order issued pursuant to § 725.310.
(2) A proposed order issued by a
district director pursuant to § 725.418
becomes effective at the expiration of
the thirtieth day thereafter if no party
timely requests revision of the proposed
decision and order or a hearing (see
§ 725.419). An order issued by an
administrative law judge becomes
effective when it is filed in the office of
the district director (see § 725.479). An
order issued by the Benefits Review
Board shall become effective when it is
issued. An order issued by a court shall
become effective in accordance with the
rules of the court.
(b)(1) While an effective order
requiring the payment of benefits
remains in effect, monthly benefits, at
the rates set forth in § 725.520, shall be
due on the fifteenth day of the month
following the month for which the
benefits are payable. For example,
benefits payable for the month of
January shall be due on the fifteenth day
of February.
(2) Within 30 days after the issuance
of an effective order requiring the
payment of benefits, the district director
shall compute the amount of benefits

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payable for periods prior to the effective
date of the order, in addition to any
interest payable for such periods (see
§ 725.608), and shall so notify the
parties. Any computation made by the
district director under this paragraph
shall strictly observe the terms of the
order. Benefits and interest payable for
such periods shall be due on the
thirtieth day following issuance of the
district director’s computation. A copy
of the current table of applicable interest
rates shall be attached to the
computation.
(c) Benefits are payable for monthly
periods and shall be paid directly to an
eligible claimant or his or her
representative payee (see § 725.510)
beginning with the month during which
eligibility begins. Benefit payments
shall terminate with the month before
the month during which eligibility
terminates. If a claimant dies in the first
month during which all requirements
for eligibility are met, benefits shall be
paid for that month.
§ 725.503
payable.

Date from which benefits are

(a) In accordance with the provisions
of section 6(a) of the Longshore Act as
incorporated by section 422(a) of the
Act, and except as provided in
§ 725.504, the provisions of this section
shall be applicable in determining the
date from which benefits are payable to
an eligible claimant for any claim filed
after March 31, 1980. Except as
provided in paragraph (d) of this
section, the date from which benefits are
payable for any claim approved under
part 727 shall be determined in
accordance with § 727.302 (see
§ 725.4(d)).
(b) Miner’s claim. Benefits are payable
to a miner who is entitled beginning
with the month of onset of total
disability due to pneumoconiosis
arising out of coal mine employment.
Where the evidence does not establish
the month of onset, benefits shall be
payable to such miner beginning with
the month during which the claim was
filed. In the case of a miner who filed
a claim before January 1, 1982, benefits
shall be payable to the miner’s eligible
survivor (if any) beginning with the
month in which the miner died.
(c) Survivor’s claim. Benefits are
payable to a survivor who is entitled
beginning with the month of the miner’s
death, or January 1, 1974, whichever is
later.
(d) If a claim is awarded pursuant to
section 22 of the Longshore Act and
§ 725.310, then the date from which
benefits are payable shall be determined
as follows:

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(1) Mistake in fact. The provisions of
paragraphs (b) or (c) of this section, as
applicable, shall govern the
determination of the date from which
benefits are payable.
(2) Change in conditions. Benefits are
payable to a miner beginning with the
month of onset of total disability due to
pneumoconiosis arising out of coal mine
employment, provided that no benefits
shall be payable for any month prior to
the effective date of the most recent
denial of the claim by a district director
or administrative law judge. Where the
evidence does not establish the month
of onset, benefits shall be payable to
such miner from the month in which
the claimant requested modification.
(e) In the case of a claim filed between
July 1, 1973, and December 31, 1973,
benefits shall be payable as provided by
this section, except to the extent
prohibited by § 727.303 (see § 725.4(d)).
(f) No benefits shall be payable with
respect to a claim filed after December
31, 1973 (a part C claim), for any period
of eligibility occurring before January 1,
1974.
(g) Each decision and order awarding
benefits shall indicate the month from
which benefits are payable to the
eligible claimant.
§ 725.504 Payments to a claimant
employed as a miner.

(a) In the case of a claimant who is
employed as a miner (see § 725.202) at
the time of a final determination of such
miner’s eligibility for benefits, no
benefits shall be payable unless:
(1) The miner’s eligibility is
established under section 411(c)(3) of
the Act; or
(2) the miner terminates his or her
coal mine employment within 1 year
from the date of the final determination
of the claim.
(b) If the eligibility of a working miner
is established under section 411(c)(3) of
the Act, benefits shall be payable as is
otherwise provided in this part. If
eligibility cannot be established under
section 411(c)(3), and the miner
continues to be employed as a miner in
any capacity for a period of less than 1
year after a final determination of the
claim, benefits shall be payable
beginning with the month during which
the miner ends his or her coal mine
employment. If the miner’s employment
continues for more than 1 year after a
final determination of eligibility, such
determination shall be considered a
denial of benefits on the basis of the
miner’s continued employment, and the
miner may seek benefits only as
provided in § 725.310, if applicable, or
by filing a new claim under this part.
The provisions of Subparts E and F of

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this part shall be applicable to claims
considered under this section as is
appropriate.
(c) In any case where the miner
returns to coal mine or comparable and
gainful work, the payments to such
miner shall be suspended and no
benefits shall be payable (except as
provided in section 411(c)(3) of the Act)
for the period during which the miner
continues to work. If the miner again
terminates employment, the district
director may require the miner to
submit to further medical examination
before authorizing the payment of
benefits.
§ 725.505

Payees.

Benefits may be paid, as appropriate,
to a beneficiary, to a qualified
dependent, or to a representative
authorized under this subpart to receive
payments on behalf of such beneficiary
or dependent.
§ 725.506 Payment on behalf of another;
‘‘legal guardian’’ defined.

Benefits are paid only to the
beneficiary, his or her representative
payee (see § 725.510) or his or her legal
guardian. As used in this section, ‘‘legal
guardian’’ means an individual who has
been appointed by a court of competent
jurisdiction or otherwise appointed
pursuant to law to assume control of
and responsibility for the care of the
beneficiary, the management of his or
her estate, or both.
§ 725.507 Guardian for minor or
incompetent.

An adjudication officer may require
that a legal guardian or representative be
appointed to receive benefit payments
payable to any person who is mentally
incompetent or a minor and to exercise
the powers granted to, or to perform the
duties otherwise required of such
person under the Act.
§ 725.510

Representative payee.

(a) If the district director determines
that the best interests of a beneficiary
are served thereby, the district director
may certify the payment of such
beneficiary’s benefits to a representative
payee.
(b) Before any amount shall be
certified for payment to any
representative payee for or on behalf of
a beneficiary, such representative payee
shall submit to the district director such
evidence as may be required of his or
her relationship to, or his or her
responsibility for the care of, the
beneficiary on whose behalf payment is
to be made, or of his or her authority to
receive such a payment. The district
director may, at any time thereafter,
require evidence of the continued

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existence of such relationship,
responsibility, or authority. If a person
requesting representative payee status
fails to submit the required evidence
within a reasonable period of time after
it is requested, no further payments
shall be certified to him or her on behalf
of the beneficiary unless the required
evidence is thereafter submitted.
(c) All benefit payments made to a
representative payee shall be available
only for the use and benefit of the
beneficiary, as defined in § 725.511.
§ 725.511

Use and benefit defined.

(a) Payments certified to a
representative payee shall be considered
as having been applied for the use and
benefit of the beneficiary when they are
used for the beneficiary’s current
maintenance—i.e., to replace current
income lost because of the disability of
the beneficiary. Where a beneficiary is
receiving care in an institution, current
maintenance shall include the
customary charges made by the
institution and charges made for the
current and foreseeable needs of the
beneficiary which are not met by the
institution.
(b) Payments certified to a
representative payee which are not
needed for the current maintenance of
the beneficiary, except as they may be
used under § 725.512, shall be
conserved or invested on the
beneficiary’s behalf. Preferred
investments are U.S. savings bonds
which shall be purchased in accordance
with applicable regulations of the U.S.
Treasury Department (31 CFR part 315).
Surplus funds may also be invested in
accordance with the rules applicable to
investment of trust estates by trustees.
For example, surplus funds may be
deposited in an interest or dividend
bearing account in a bank or trust
company or in a savings and loan
association if the account is either
federally insured or is otherwise insured
in accordance with State law
requirements. Surplus funds deposited
in an interest or dividend bearing
account in a bank or trust company or
in a savings and loan association must
be in a form of account which clearly
shows that the representative payee has
only a fiduciary, and not a personal,
interest in the funds. The preferred
forms of such accounts are as follows:
Name of beneficiary lllllllllll
by (Name of representative payee)
representative payee,
or (Name of beneficiary)
by (Name of representative payee) trustee,
U.S. savings bonds purchased with surplus
funds by a representative payee for an
incapacitated adult beneficiary should be
registered as follows: (Name of beneficiary)

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(Social Security No.), for whom (Name of
payee) is representative payee for black lung
benefits.
§ 725.512 Support of legally dependent
spouse, child, or parent.

If current maintenance needs of a
beneficiary are being reasonably met, a
relative or other person to whom
payments are certified as representative
payee on behalf of the beneficiary may
use part of the payments so certified for
the support of the legally dependent
spouse, a legally dependent child, or a
legally dependent parent of the
beneficiary.
§ 725.513

Accountability; transfer.

(a) The district director may require a
representative payee to submit periodic
reports including a full accounting of
the use of all benefit payments certified
to a representative payee. If a requested
report or accounting is not submitted
within the time allowed, the district
director shall terminate the certification
of the representative payee and
thereafter payments shall be made
directly to the beneficiary. A
certification which is terminated under
this section may be reinstated for good
cause, provided that all required reports
are supplied to the district director.
(b) A representative payee who has
conserved or invested funds from
payments under this part shall, upon
the direction of the district director,
transfer any such funds (including
interest) to a successor payee appointed
by the district director or, at the option
of the district director, shall transfer
such funds to the Office for
recertification to a successor payee or
the beneficiary.
§ 725.514 Certification to dependent of
augmentation portion of benefit.

(a) If the basic benefit of a miner or
of a surviving spouse is augmented
because of one or more dependents, and
it appears to the district director that the
best interests of such dependent would
be served thereby, or that the augmented
benefit is not being used for the use and
benefit (as defined in this subpart) of the
augmentee, the district director may
certify payment of the amount of such
augmentation (to the extent attributable
to such dependent) to such dependent
directly, or to a legal guardian or a
representative payee for the use and
benefit of such dependent.
(b) Any request to the district director
to certify separate payment of the
amount of an augmentation in
accordance with paragraph (a) of this
section shall be in writing on such form
and in accordance with such
instructions as are prescribed by the
Office.

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80087

(c) The district director shall specify
the terms and conditions of any
certification authorized under this
section and may terminate any such
certification where appropriate.
(d) Any payment made under this
section, if otherwise valid under the
Act, is a complete settlement and
satisfaction of all claims, rights, and
interests in and to such payment, except
that such payment shall not be
construed to abridge the rights of any
party to recoup any overpayment made.
§ 725.515 Assignment and exemption from
claims of creditors.

(a) Except as provided by the Act and
this part, no assignment, release, or
commutation of benefits due or payable
under this part by a responsible operator
shall be valid, and all benefits shall be
exempt from claims of creditors and
from levy, execution, and attachment or
other remedy or recovery or collection
of a debt, which exemption may not be
waived.
(b) Notwithstanding any other
provision of law, benefits due from, or
payable by, the Black Lung Disability
Trust Fund under the Act and this part
to a claimant shall be subject to legal
process brought for the enforcement
against the claimant of his or her legal
obligations to provide child support or
make alimony payments to the same
extent as if the fund was a private
person.
Benefit Rates
§ 725.520

Computation of benefits.

(a) Basic rate. The amount of benefits
payable to a beneficiary for a month is
determined, in the first instance, by
computing the ‘‘basic rate.’’ The basic
rate is equal to 371⁄2 percent of the
monthly pay rate for Federal employees
in GS–2, step 1. That rate for a month
is determined by:
(1) Ascertaining the lowest annual
rate of pay (step 1) for Grade GS–2 of the
General Schedule applicable to such
month (see 5 U.S.C. 5332);
(2) Ascertaining the monthly rate
thereof by dividing the amount
determined in paragraph (a)(1) of this
section by 12; and
(3) Ascertaining the basic rate under
the Act by multiplying the amount
determined in paragraph (a)(2) of this
section by 0.375 (that is, by 371⁄2
percent).
(b) Basic benefit. When a miner or
surviving spouse is entitled to benefits
for a month for which he or she has no
dependents who qualify under this part
and when a surviving child of a miner
or spouse, or a parent, brother, or sister
of a miner, is entitled to benefits for a
month for which he or she is the only

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beneficiary entitled to benefits, the
amount of benefits to which such
beneficiary is entitled is equal to the
basic rate as computed in accordance
with this section (raised, if not a
multiple of 10 cents, to the next high
multiple of 10 cents). This amount is
referred to as the ‘‘basic benefit.’’
(c) Augmented benefit. (1) When a
miner or surviving spouse is entitled to
benefits for a month for which he or she
has one or more dependents who
qualify under this part, the amount of
benefits to which such miner or
surviving spouse is entitled is increased.
This increase is referred to as an
‘‘augmentation.’’
(2) The benefits of a miner or
surviving spouse are augmented to take
account of a particular dependent
beginning with the first month in which
such dependent satisfies the conditions
set forth in this part, and continues to
be augmented through the month before
the month in which such dependent
ceases to satisfy the conditions set forth
in this part, except in the case of a child
who qualifies as a dependent because he
or she is a student. In the latter case,
such benefits continue to be augmented
through the month before the first
month during no part of which he or she
qualifies as a student.
(3) The basic rate is augmented by 50
percent for one such dependent, 75
percent for two such dependents, and
100 percent for three or more such
dependents.
(d) Survivor benefits. As used in this
section, ‘‘survivor’’ means a surviving
child of a miner or surviving spouse, or
a surviving parent, brother, or sister of
a miner, who establishes entitlement to
benefits under this part.
(e) Computation and rounding. (1)
Any computation prescribed by this
section is made to the third decimal
place.
(2) Monthly benefits are payable in
multiples of 10 cents. Therefore, a
monthly payment of amounts derived
under paragraph (c)(3) of this section
which is not a multiple of 10 cents is
increased to the next higher multiple of
10 cents.
(3) Since a fraction of a cent is not a
multiple of 10 cents, such an amount
which contains a fraction in the third
decimal place is raised to the next
higher multiple of 10 cents.
(f) Eligibility based on the coal mine
employment of more than one miner.
Where an individual, for any month, is
entitled (and/or qualifies as a dependent
for purposes of augmentation of
benefits) based on the disability or death
due to pneumoconiosis arising out of
the coal mine employment of more than
one miner, the benefit payable to or on

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behalf of such individual shall be at a
rate equal to the highest rate of benefits
for which entitlement is established by
reason of eligibility as a beneficiary, or
by reason of his or her qualification as
a dependent for augmentation of benefit
purposes.
§ 725.521 Commutation of payments; lump
sum awards.

(a) Whenever the district director
determines that it is in the interest of
justice, the liability for benefits or any
part thereof as determined by a final
adjudication, may, with the approval of
the Director, be discharged by the
payment of a lump sum equal to the
present value of future benefit payments
commuted, computed at 4 percent true
discount compounded annually.
(b) Applications for commutation of
future payments of benefits shall be
made to the district director in the
manner prescribed by the district
director. If the district director
determines that an award of a lump sum
payment of such benefits would be in
the interest of justice, he or she shall
refer such application, together with the
reasons in support of such
determination, to the Director for
consideration.
(c) The Director shall, in his or her
discretion, grant or deny the application
for commutation of payments. Such
decision may be appealed to the
Benefits Review Board.
(d) The computation of all
commutations of such benefits shall be
made by the OWCP. For this purpose
the file shall contain the date of birth of
the person on whose behalf
commutation is sought, as well as the
date upon which such commutation
shall be effective.
(e) For purposes of determining the
amount of any lump sum award, the
probability of the death of the disabled
miner and/or other persons entitled to
benefits before the expiration of the
period during which he or she is
entitled to benefits, shall be determined
in accordance with the most current
United States Life Tables, as developed
by the Department of Health, Education,
and Welfare, and the probability of the
remarriage of a surviving spouse shall
be determined in accordance with the
remarriage tables of the Dutch Royal
Insurance Institution. The probability of
the happening of any other contingency
affecting the amount or duration of the
compensation shall be disregarded.
(f) In the event that an operator or
carrier is adjudicated liable for the
payment of benefits, such operator or
carrier shall be notified of and given an
opportunity to participate in the
proceedings to determine whether a

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lump sum award shall be made. Such
operator or carrier shall, in the event a
lump sum award is made, tender full
and prompt payment of such award to
the claimant as though such award were
a final payment of monthly benefits.
Except as provided in paragraph (g) of
this section, such lump sum award shall
forever discharge such operator or
carrier from its responsibility to make
monthly benefit payments under the Act
to the person who has requested such
lump-sum award. In the event that an
operator or carrier is adjudicated liable
for the payment of benefits, such
operator or carrier shall not be liable for
any portion of a commuted or lump sum
award predicated upon benefits due any
claimant prior to January 1, 1974.
(g) In the event a lump-sum award is
approved under this section, such
award shall not operate to discharge an
operator carrier, or the fund from any
responsibility imposed by the Act for
the payment of medical benefits to an
eligible miner.
§ 725.522 Payments prior to final
adjudication.

(a) If an operator or carrier fails or
refuses to commence the payment of
benefits within 30 days of issuance of an
initial determination of eligibility by the
district director (see § 725.420), or fails
or refuses to commence the payment of
any benefits due pursuant to an effective
order by a district director,
administrative law judge, Benefits
Review Board, or court, the fund shall
commence the payment of such benefits
and shall continue such payments as
appropriate. In the event that the fund
undertakes the payment of benefits on
behalf of an operator or carrier, the
provisions of §§ 725.601 through
725.609 shall be applicable to such
operator or carrier.
(b) If benefit payments are
commenced prior to the final
adjudication of the claim and it is later
determined by an administrative law
judge, the Board, or court that the
claimant was ineligible to receive such
payments, such payments shall be
considered overpayments pursuant to
§ 725.540 and may be recovered in
accordance with the provisions of this
subpart.
Special Provisions for Operator
Payments
§ 725.530

Operator payments; generally.

(a) Benefits payable by an operator or
carrier pursuant to an effective order
issued by a district director,
administrative law judge, Benefits
Review Board, or court, or by an
operator that has agreed that it is liable
for the payment of benefits to a

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claimant, shall be paid by the operator
or carrier immediately when they
become due (see § 725.502(b)). An
operator that fails to pay any benefits
that are due, with interest, shall be
considered in default with respect to
those benefits, and the provisions of
§ 725.605 of this part shall be
applicable. In addition, a claimant who
does not receive any benefits within 10
days of the date they become due is
entitled to additional compensation
equal to twenty percent of those benefits
(see § 725.607). Arrangements for the
payment of medical costs shall be made
by such operator or carrier in
accordance with the provisions of
subpart J of this part.
(b) Benefit payments made by an
operator or carrier shall be made
directly to the person entitled thereto or
a representative payee if authorized by
the district director. The payment of a
claimant’s attorney’s fee, if any is
awarded, shall be made directly to such
attorney. Reimbursement of the fund,
including interest, shall be paid directly
to the Secretary on behalf of the fund.
§ 725.531

Receipt for payment.

Any individual receiving benefits
under the Act in his or her own right,
or as a representative payee, or as the
duly appointed agent for the estate of a
deceased beneficiary, shall execute
receipts for benefits paid by any
operator which shall be produced by
such operator for inspection whenever
the district director requires. A canceled
check shall be considered adequate
receipt of payment for purposes of this
section. No operator or carrier shall be
required to retain receipts for payments
made for more than 5 years after the
date on which such receipt was
executed.
§ 725.532 Suspension, reduction, or
termination of payments.

(a) No suspension, reduction, or
termination in the payment of benefits
is permitted unless authorized by the
district director, administrative law
judge, Board, or court. No suspension,
reduction, or termination shall be
authorized except upon the occurrence
of an event which terminates a
claimant’s eligibility for benefits (see
subpart B of this part) or as is otherwise
provided in subpart C of this part,
§§ 725.306 and 725.310, or this subpart
(see also §§ 725.533 through 725.546).
(b) Any unauthorized suspension in
the payment of benefits by an operator
or carrier shall be treated as provided in
subpart I.
(c) Unless suspension, reduction, or
termination of benefits payments is
required by an administrative law judge,

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the Benefits Review Board or a court,
the district director, after receiving
notification of the occurrence of an
event that would require the
suspension, reduction, or termination of
benefits, shall follow the procedures for
the determination of claims set forth in
subparts E and F.
Increases and Reductions of Benefits
§ 725.533 Modification of benefits
amounts; general.

(a) Under certain circumstances, the
amount of monthly benefits as
computed in § 725.520 or lump-sum
award (§ 725.521) shall be modified to
determine the amount actually to be
paid to a beneficiary. With respect to
any benefits payable for all periods of
eligibility after January 1, 1974, a
reduction of the amount of benefits
payable shall be required on account of:
(1) Any compensation or benefits
received under any State workers’
compensation law because of death or
partial or total disability due to
pneumoconiosis; or
(2) Any compensation or benefits
received under or pursuant to any
Federal law including part B of title IV
of the Act because of death or partial or
total disability due to pneumoconiosis;
or
(3) In the case of benefits to a parent,
brother, or sister as a result of a claim
filed at any time or benefits payable on
a miner’s claim which was filed on or
after January 1, 1982, the excess
earnings from wages and from net
earnings from self-employment (see
§ 410.530 of this title) of such parent,
brother, sister, or miner, respectively; or
(4) The fact that a claim for benefits
from an additional beneficiary is filed,
or that such claim is effective for a
payment during the month of filing, or
a dependent qualifies under this part for
an augmentation portion of a benefit of
a miner or widow for a period in which
another dependent has previously
qualified for an augmentation.
(b) An adjustment in a beneficiary’s
monthly benefit may be required
because an overpayment or
underpayment has been made to such
beneficiary (see §§ 725.540–725.546).
(c) A suspension of a beneficiary’s
monthly benefits may be required when
the Office has information indicating
that reductions on account of excess
earnings may reasonably be expected.
(d) Monthly benefit rates are payable
in multiples of 10 cents. Any monthly
benefit rate which, after the applicable
computations, augmentations, and
reductions is not a multiple of 10 cents,
is increased to the next higher multiple
of 10 cents. Since a fraction of a cent is

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not a multiple of 10 cents, a benefit rate
which contains such a fraction in the
third decimal is raised to the next
higher multiple of 10 cents.
(e) Any individual entitled to a
benefit, who is aware of any
circumstances which could affect
entitlement to benefits, eligibility for
payment, or the amount of benefits, or
result in the termination, suspension, or
reduction of benefits, shall promptly
report these circumstances to the Office.
The Office may at any time require an
individual receiving, or claiming
entitlement to, benefits, either on his or
her own behalf or on behalf of another,
to submit a written statement giving
pertinent information bearing upon the
issue of whether or not an event has
occurred which would cause such
benefit to be terminated, or which
would subject such benefit to reductions
or suspension under the provisions of
the Act. The failure of an individual to
submit any such report or statement,
properly executed, to the Office shall
subject such benefit to reductions,
suspension, or termination as the case
may be.
§ 725.534

Reduction of State benefits.

No benefits under section 415 of part
B of title IV of the Act shall be payable
to the residents of a State which, after
December 31, 1969, reduces the benefits
payable to persons eligible to receive
benefits under section 415 of the Act
under State laws applicable to its
general work force with regard to
workers’ compensation (including
compensation for occupational disease),
unemployment compensation, or
disability insurance benefits which are
funded in whole or in part out of
employer contributions.
§ 725.535 Reductions; receipt of State or
Federal benefit.

(a) As used in this section the term
‘‘State or Federal benefit’’ means a
payment to an individual on account of
total or partial disability or death due to
pneumoconiosis only under State or
Federal laws relating to workers’
compensation. With respect to a claim
for which benefits are payable for any
month between July 1 and December 31,
1973, ‘‘State benefit’’ means a payment
to a beneficiary made on account of
disability or death due to
pneumoconiosis under State laws
relating to workers’ compensation
(including compensation for
occupational disease), unemployment
compensation, or disability insurance.
(b) Benefit payments to a beneficiary
for any month are reduced (but not
below zero) by an amount equal to any
payments of State or Federal benefits

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received by such beneficiary for such
month.
(c) Where a State or Federal benefit is
paid periodically but not monthly, or in
a lump sum as a commutation of or a
substitution for periodic benefits, the
reduction under this section is made at
such time or times and in such amounts
as the Office determines will
approximate as nearly as practicable the
reduction required under paragraph (b)
of this section. In making such a
determination, a weekly State or Federal
benefit is multiplied by 41⁄3 and a
biweekly benefit is multiplied by 21⁄6 to
ascertain the monthly equivalent for
reduction purposes.
(d) Amounts paid or incurred or to be
incurred by the individual for medical,
legal, or related expenses in connection
with this claim for State or Federal
benefits (defined in paragraph (a) of this
section) are excluded in computing the
reduction under paragraph (b) of this
section, to the extent that they are
consistent with State or Federal Law.
Such medical, legal, or related expenses
may be evidenced by the State or
Federal benefit awards, compromise
agreement, or court order in the State or
Federal benefit proceedings, or by such
other evidence as the Office may
require. Such other evidence may
consist of:
(1) A detailed statement by the
individual’s attorney, physician, or the
employer’s insurance carrier; or
(2) Bills, receipts, or canceled checks;
or
(3) Other evidence indicating the
amount of such expenses; or
(4) Any combination of the foregoing
evidence from which the amount of
such expenses may be determinable.
Such expenses shall not be excluded
unless established by evidence as
required by the Office.
§ 725.536

Reductions; excess earnings.

In the case of a surviving parent,
brother, or sister, whose claim was filed
at any time, or of a miner whose claim
was filed on or after January 1, 1982,
benefit payments are reduced as
appropriate by an amount equal to the
deduction which would be made with
respect to excess earnings under the
provisions of sections 203 (b), (f), (g),
(h), (j), and (l) of the Social Security Act
(42 U.S.C. 403 (b), (f), (g), (h), (j), and
(l)), as if such benefit payments were
benefits payable under section 202 of
the Social Security Act (42 U.S.C. 402)
(see §§ 404.428 through 404.456 of this
title).

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§ 725.537 Reductions; retroactive effect of
an additional claim for benefits.

Except as provided in § 725.212(b),
beginning with the month in which a
person other than a miner files a claim
and becomes entitled to benefits, the
benefits of other persons entitled to
benefits with respect to the same miner,
are adjusted downward, if necessary, so
that no more than the permissible
amount of benefits (the maximum
amount for the number of beneficiaries
involved) will be paid.
§ 725.538 Reductions; effect of
augmentation of benefits based on
subsequent qualification of individual.

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More than one reduction event.

If a reduction for receipt of State or
Federal benefits and a reduction on
account of excess earnings are
chargeable to the same month, the
benefit for such month is first reduced
(but not below zero) by the amount of
the State or Federal benefits, and the
remainder of the benefit for such month,
if any, is then reduced (but not below
zero) by the amount of excess earnings
chargeable to such month.
Overpayments; Underpayments
§ 725.540

(a) Ordinarily, a written request that
the benefits of a miner or surviving
spouse be augmented on account of a
qualified dependent is made as part of
the claim for benefits. However, it may
also be made thereafter.
(b) In the latter case, beginning with
the month in which such a request is
filed on account of a particular
dependent and in which such
dependent qualifies for augmentation
purposes under this part, the augmented
benefits attributable to other qualified
dependents (with respect to the same
miner or surviving spouse), if any, are
adjusted downward, if necessary, so that
the permissible amount of augmented
benefits (the maximum amount for the
number of dependents involved) will
not be exceeded.
(c) Where, based on the entitlement to
benefits of a miner or surviving spouse,
a dependent would have qualified for
augmentation purposes for a prior
month of such miner’s or surviving
spouse’s entitlement had such request
been filed in such prior month, such
request is effective for such prior month.
For any month before the month of
filing such request, however, otherwise
correct benefits previously certified by
the Office may not be changed. Rather
the amount of the augmented benefit
attributable to the dependent filing such
request in the later month is reduced for
each month of the retroactive period to
the extent that may be necessary. This
means that for each month of the
retroactive period, the amount payable
to the dependent filing the later
augmentation request is the difference,
if any, between:
(1) The total amount of augmented
benefits certified for payment for other
dependents for that month, and
(2) The permissible amount of
augmented benefits (the maximum
amount for the number of dependents
involved) payable for the month for all
dependents, including the dependent
filing later.

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§ 725.539

Overpayments.

(a) General. As used in this subpart,
the term ‘‘overpayment’’ includes:
(1) Payment where no amount is
payable under this part;
(2) Payment in excess of the amount
payable under this part;
(3) A payment under this part which
has not been reduced by the amounts
required by the Act (see § 725.533);
(4) A payment under this part made
to a resident of a State whose residents
are not entitled to benefits (see
§§ 725.402 and 725.403);
(5) Payment resulting from failure to
terminate benefits to an individual no
longer entitled thereto;
(6) Duplicate benefits paid to a
claimant on account of concurrent
eligibility under this part and parts 410
or 727 (see § 725.4(d)) of this title or as
provided in § 725.309.
(b) Overpaid beneficiary is living. If
the beneficiary to whom an
overpayment was made is living at the
time of a determination of such
overpayment, is entitled to benefits at
the time of the overpayment, or at any
time thereafter becomes so entitled, no
benefit for any month is payable to such
individual, except as provided in
paragraph (c) of this section, until an
amount equal to the amount of the
overpayment has been withheld or
refunded.
(c) Adjustment by withholding part of
a monthly benefit. Adjustment under
paragraph (b) of this section may be
effected by withholding a part of the
monthly benefit payable to a beneficiary
where it is determined that:
(1) Withholding the full amount each
month would deprive the beneficiary of
income required for ordinary and
necessary living expenses;
(2) The overpayment was not caused
by the beneficiary’s intentionally false
statement or representation, or willful
concealment of, or deliberate failure to
furnish, material information; and
(3) Recoupment can be effected in an
amount of not less than $ 10 a month
and at a rate which would not
unreasonably extend the period of
adjustment.

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(d) Overpaid beneficiary dies before
adjustment. If an overpaid beneficiary
dies before adjustment is completed
under the provisions of paragraph (b) of
this section, recovery of the
overpayment shall be effected through
repayment by the estate of the deceased
overpaid beneficiary, or by withholding
of amounts due the estate of such
deceased beneficiary, or both.
§ 725.541 Notice of waiver of adjustment
or recovery of overpayment.

Whenever a determination is made
that more than the correct amount of
payment has been made, notice of the
provisions of section 204(b) of the
Social Security Act regarding waiver of
adjustment or recovery shall be sent to
the overpaid individual, to any other
individual against whom adjustment or
recovery of the overpayment is to be
effected, and to any operator or carrier
which may be liable to such overpaid
individual.
§ 725.542 When waiver of adjustment or
recovery may be applied.

There shall be no adjustment or
recovery of an overpayment in any case
where an incorrect payment has been
made with respect to an individual:
(a) Who is without fault, and where
(b) Adjustment or recovery would
either:
(1) Defeat the purpose of title IV of the
Act, or
(2) Be against equity and good
conscience.
§ 725.543 Standards for waiver of
adjustment or recovery.

The standards for determining the
applicability of the criteria listed in
§ 725.542 shall be the same as those
applied by the Social Security
Administration under §§ 404.506
through 404.512 of this title.
§ 725.544 Collection and compromise of
claims for overpayment.

(a) General effect of 31 U.S.C. 3711. In
accordance with 31 U.S.C. 3711 and
applicable regulations, claims by the
Office against an individual for recovery
of an overpayment under this part not
exceeding the sum of $100,000,
exclusive of interest, may be
compromised, or collection suspended
or terminated, where such individual or
his or her estate does not have the
present or prospective ability to pay the
full amount of the claim within a
reasonable time (see paragraph (c) of
this section), or the cost of collection is
likely to exceed the amount of recovery
(see paragraph (d) of this section),
except as provided under paragraph (b)
of this section.

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(b) When there will be no
compromise, suspension, or termination
of collection of a claim for overpayment.
(1) In any case where the overpaid
individual is alive, a claim for
overpayment will not be compromised,
nor will there be suspension or
termination of collection of the claim by
the Office, if there is an indication of
fraud, the filing of a false claim, or
misrepresentation on the part of such
individual or on the part of any other
party having any interest in the claim.
(2) In any case where the overpaid
individual is deceased:
(i) A claim for overpayment in excess
of $ 5,000 will not be compromised, nor
will there be suspension or termination
of collection of the claim by the Office
if there is an indication of fraud, the
filing of a false claim, or
misrepresentation on the part of such
deceased individual; and
(ii) A claim for overpayment,
regardless of the amount, will not be
compromised, nor will there be
suspension or termination of collection
of the claim by the Office if there is an
indication that any person other than
the deceased overpaid individual had a
part in the fraudulent action which
resulted in the overpayment.
(c) Inability to pay claim for recovery
of overpayment. In determining whether
the overpaid individual is unable to pay
a claim for recovery of an overpayment
under this part, the Office shall consider
the individual’s age, health, present and
potential income (including inheritance
prospects), assets (e.g., real property,
savings account), possible concealment
or improper transfer of assets, and assets
or income of such individual which
may be available in enforced collection
proceedings. The Office will also
consider exemptions available to such
individual under the pertinent State or
Federal law in such proceedings. In the
event the overpaid individual is
deceased, the Office shall consider the
available assets of the estate, taking into
account any liens or superior claims
against the estate.
(d) Cost of collection or litigative
probabilities. Where the probable costs
of recovering an overpayment under this
part would not justify enforced
collection proceedings for the full
amount of the claim, or where there is
doubt concerning the Office’s ability to
establish its claim as well as the time
which it will take to effect such
collection, a compromise or settlement
for less than the full amount may be
considered.
(e) Amount of compromise. The
amount to be accepted in compromise of
a claim for overpayment under this part
shall bear a reasonable relationship to

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the amount which can be recovered by
enforced collection proceedings, giving
due consideration to the exemption
available to the overpaid individual
under State or Federal law and the time
which collection will take.
(f) Payment. Payment of the amount
the Office has agreed to accept as a
compromise in full settlement of a claim
for recovery of an overpayment under
this part shall be made within the time
and in the manner set by the Office. A
claim for the overpayment shall not be
considered compromised or settled until
the full payment of the compromised
amount has been made within the time
and manner set by the Office. Failure of
the overpaid individual or his or her
estate to make such payment as
provided shall result in reinstatement of
the full amount of the overpayment less
any amounts paid prior to such default.
§ 725.545

Underpayments.

(a) General. As used in this subpart,
the term ‘‘underpayment’’ includes a
payment in an amount less than the
amount of the benefit due for such
month, and nonpayment where some
amount of such benefits is payable.
(b) Underpaid individual is living. If
an individual to whom an
underpayment was made is living, the
deficit represented by such
underpayment shall be paid to such
individual either in a single payment (if
he or she is not entitled to a monthly
benefit or if a single payment is
requested by the claimant in writing) or
by increasing one or more monthly
benefit payments to which such
individual becomes entitled.
(c) Underpaid individual dies before
adjustment of underpayment. If an
individual to whom an underpayment
was made dies before receiving payment
of the deficit or negotiating the check or
checks representing payment of the
deficit, such payment shall be
distributed to the living person (or
persons) in the highest order of priority
as follows:
(1) The deceased individual’s
surviving spouse who was either:
(i) Living in the same household with
the deceased individual at the time of
such individual’s death; or
(ii) In the case of a deceased miner,
entitled for the month of death to black
lung benefits as his or her surviving
spouse or surviving divorced spouse.
(2) In the case of a deceased miner or
spouse his or her child entitled to
benefits as the surviving child of such
miner or surviving spouse for the month
in which such miner or spouse died (if
more than one such child, in equal
shares to each such child).

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(3) In the case of a deceased miner,
his parent entitled to benefits as the
surviving parent of such miner for the
month in which such miner died (if
more than one such parent, in equal
shares to each such parent).
(4) The surviving spouse of the
deceased individual who does not
qualify under paragraph (c)(1) of this
section.
(5) The child or children of the
deceased individual who do not qualify
under paragraph (c)(2) of this section (if
more than one such child, in equal
shares to each such child).
(6) The parent or parents of the
deceased individual who do not qualify
under paragraph (c)(3) of this section (if
more than one such parent, in equal
shares to each such parent).
(7) The legal representative of the
estate of the deceased individual as
defined in paragraph (e) of this section.
(d) Deceased beneficiary. In the event
that a person, who is otherwise
qualified to receive payments as the
result of a deficit caused by an
underpayment under the provisions of
paragraph (c) of this section, dies before
receiving payment or before negotiating
the check or checks representing such
payment, his or her share of the
underpayment shall be divided among
the remaining living person(s) in the
same order or priority. In the event that
there is (are) no other such person(s),
the underpayment shall be paid to the
living person(s) in the next lower order
of priority under paragraph (c) of this
section.
(e) Definition of legal representative.
The term ‘‘legal representative,’’ for the
purpose of qualifying for receipt of an
underpayment, generally means the
executor or the administrator of the
estate of the deceased beneficiary.
However, it may also include an
individual, institution or organization
acting on behalf of an unadministered
estate, provided the person can give the
Office good acquittance (as defined in
paragraph (f) of this section). The
following persons may qualify as legal
representative for purposes of this
section, provided they can give the
Office good acquittance:
(1) A person who qualifies under a
State’s ‘‘small estate’’ statute; or
(2) A person resident in a foreign
country who under the laws and
customs of that country, has the right to
receive assets of the estate; or
(3) A public administrator; or
(4) A person who has the authority
under applicable law to collect the
assets of the estate of the deceased
beneficiary.
(f) Definition of ‘‘good acquittance.’’ A
person is considered to give the Office

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‘‘good acquittance’’ when payment to
that person will release the Office from
further liability for such payment.
§ 725.546 Relation to provisions for
reductions or increases.

The amount of an overpayment or an
underpayment is the difference between
the amount to which the beneficiary
was actually entitled and the amount
paid. Overpayment and underpayment
simultaneously outstanding against the
same beneficiary shall first be adjusted
against one another before adjustment
pursuant to the other provisions of this
subpart.
§ 725.547 Applicability of overpayment
and underpayment provisions to operator
or carrier.

(a) The provisions of this subpart
relating to overpayments and
underpayments shall be applicable to
overpayments and underpayments made
by responsible operators or their
insurance carriers, as appropriate.
(b) No operator or carrier may recover,
or make an adjustment of, an
overpayment without prior application
to, and approval by, the Office which
shall exercise full supervisory authority
over the recovery or adjustment of all
overpayments.
§ 725.548 Procedures applicable to
overpayments and underpayments.

§ 725.602

(a) In any case involving either
overpayments or underpayments, the
Office may take any necessary action,
and district directors may issue
appropriate orders to protect the rights
of the parties.
(b) Disputes arising out of orders so
issued shall be resolved by the
procedures set out in subpart F of this
part.
Subpart I—Enforcement of Liability;
Reports
§ 725.601

Enforcement generally.

(a) The Act, together with certain
incorporated provisions from the
Longshoremen’s and Harbor Workers’
Compensation Act, contains a number
of provisions which subject an operator
or other employer, claimants and others
to penalties for failure to comply with
certain provisions of the Act, or failure
to commence and continue prompt
periodic payments to a beneficiary.
(b) It is the policy and intent of the
Department to vigorously enforce the
provisions of this part through the use
of the remedies provided by the Act.
Accordingly, if an operator refuses to
pay benefits with respect to a claim for
which the operator has been adjudicated
liable, the Director shall invoke and
execute the lien on the property of the

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operator as described in § 725.603.
Enforcement of this lien shall be
pursued in an appropriate U.S. district
court. If the Director determines that the
remedy provided by § 725.603 may not
be sufficient to guarantee the continued
compliance with the terms of an award
or awards against the operator, the
Director shall 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
§ 725.604). If an operator unlawfully
suspends or terminates the payment of
benefits to a claimant, the district
director shall declare the award in
default and proceed in accordance with
§ 725.605. In all cases payments in
addition to compensation (see
§ 725.607) and interest (see § 725.608)
shall 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 shall 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.
Reimbursement of the fund.

(a) In any case in which the fund has
paid benefits, including medical
benefits, on behalf of an operator or
other employer which is determined
liable therefore, or liable for a part
thereof, such operator or other employer
shall simultaneously with the first
payment of benefits made to the
beneficiary, reimburse the fund (with
interest) for the full amount of all
benefit payments made by the fund with
respect to the claim.
(b) In any case where benefit
payments have been made by the fund,
the fund shall be subrogated to the
rights of the beneficiary. The Secretary
of Labor may, as appropriate, exercise
such subrogation rights.
§ 725.603 Payments by the fund on behalf
of an operator; liens.

(a) If an amount is paid out of the
fund to an individual entitled to
benefits under this part or part 727 of
this subchapter (see § 725.4(d)) on
behalf of an operator or other employer
which is or was required to pay or
secure the payment of all or a portion
of such amount (see § 725.522), the
operator or other employer shall be
liable to the United States for repayment
to the fund of the amount of benefits
properly attributable to such operator or
other employer.

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(b) If an operator or other employer
liable to the fund refuses to pay, after
demand, the amount of such liability,
there shall be a lien in favor of the
United States upon all property and
rights to property, whether real or
personal, belonging to such operator or
other employer. The lien arises on the
date on which such liability is finally
determined, and continues until it is
satisfied or becomes unenforceable by
reason of lapse of time.
(c)(1) Except as otherwise provided
under this section, the priority of the
lien shall be determined in the same
manner as under section 6323 of the
Internal Revenue Code (26 U.S.C.).
(2) In the case of a bankruptcy or
insolvency proceeding, the lien imposed
under this section shall be treated in the
same manner as a lien for taxes due and
owing to the United States for purposes
of the Bankruptcy Act or section 3466
of the Revised Statutes (31 U.S.C. 191).
(3) For purposes of applying section
6323(a) of the Internal Revenue Code
(26 U.S.C.) to determine the priority
between the lien imposed under this
section and the Federal tax lien, each
lien shall be treated as a judgment lien
arising as of the time notice of such lien
is filed.
(4) For purposes of the section, notice
of the lien imposed hereunder shall be
filed in the same manner as under
section 6323(f) (disregarding paragraph
(4) thereof) and (g) of the Internal
Revenue Code (26 U.S.C.).
(5) In any case where there has been
a refusal or neglect to pay the liability
imposed under this section, the
Secretary of Labor may bring a civil
action in a district court of the United
States to enforce the lien of the United
States under this section with respect to
such liability or to subject any property,
of whatever nature, of the operator, or
in which it has any right, title, or
interest, to the payment of such liability.
(6) The liability imposed by this
paragraph may be collected at a
proceeding in court if the proceeding is
commenced within 6 years after the date
upon which the liability was finally
determined, or prior to the expiration of
any period for collection agreed upon in
writing by the operator and the United
States before the expiration of such 6year period. This period of limitation
shall be suspended for any period
during which the assets of the operator
are in the custody or control of any
court of the United States, or of any
State, or the District of Columbia, and
for 6 months thereafter, and for any
period during which the operator is
outside the United States if such period
of absence is for a continuous period of
at least 6 months.

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§ 725.604

Enforcement of final awards.

Notwithstanding the provisions of
§ 725.603, if an operator or other
employer or its officers or agents fails to
comply with an order awarding benefits
that has become final, any beneficiary of
such award or the district director may
apply for the enforcement of the order
to the Federal district court for the
judicial district in which the injury
occurred (or to the U.S. District Court
for the District of Columbia if the injury
occurred in the District). If the court
determines that the order was made and
served in accordance with law, and that
such operator or other employer or its
officers or agents have failed to comply
therewith, the court shall enforce
obedience to the order by writ of
injunction or by other proper process,
mandatory or otherwise, to enjoin upon
such operator or other employer and its
officers or agents compliance with the
order.
§ 725.605

Defaults.

(a) Except as is otherwise provided in
this part, no suspension, termination or
other failure to pay benefits awarded to
a claimant is permitted. If an employer
found liable for the payment of such
benefits fails to make such payments
within 30 days after any date on which
such benefits are due and payable, the
person to whom such benefits are
payable may, within one year after such
default, make application to the district
director for a supplementary order
declaring the amount of the default.
(b) If after investigation, notice and
hearing as provided in subparts E and
F of this part, a default is found, the
district director or the administrative
law judge, if a hearing is requested,
shall issue a supplementary order
declaring the amount of the default, if
any. In cases where a lump-sum award
has been made, if the payment in
default is an installment, the district
director or administrative law judge,
may, in his or her discretion, declare the
whole of the award as the amount in
default. The applicant may file a
certified copy of such supplementary
order with the clerk of the Federal
district court for the judicial district in
which the operator has its principal
place of business or maintains an office
or for the judicial district in which the
injury occurred. In case such principal
place of business or office is in the
District of Columbia, a copy of such
supplementary order may be filed with
the clerk of the U.S. District Court for
the District of Columbia. Such
supplementary order shall be final and
the court shall, upon the filing of the
copy, enter judgment for the amount
declared in default by the

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supplementary order if such
supplementary order is in accordance
with law. Review of the judgment may
be had as in civil suits for damages at
common law. Final proceedings to
execute the judgment may be had by
writ of execution in the form used by
the court in suits at common law in
actions of assumpsit. No fee shall be
required for filing the supplementary
order nor for entry of judgment thereon,
and the applicant shall not be liable for
costs in a proceeding for review of the
judgment unless the court shall
otherwise direct. The court shall modify
such judgment to conform to any later
benefits order upon presentation of a
certified copy thereof to the court.
(c) In cases where judgment cannot be
satisfied by reason of the employer’s
insolvency or other circumstances
precluding payment, the district
director shall make payment from the
fund, and in addition, provide any
necessary medical, surgical, and other
treatment required by subpart J of this
part. A defaulting employer shall be
liable to the fund for payment of the
amounts paid by the fund under this
section; and for the purpose of enforcing
this liability, the fund shall be
subrogated to all the rights of the person
receiving such payments or benefits.
§ 725.606
benefits.

Security for the payment of

(a) Following the issuance of an
effective order by a district director (see
§ 725.418), administrative law judge (see
§ 725.479), Benefits Review Board, or
court that requires the payment of
benefits by an operator that has failed to
secure the payment of benefits in
accordance with section 423 of the Act
and § 726.4 of this subchapter, or by a
coal mine construction or transportation
employer, the Director may request that
the operator secure the payment of all
benefits ultimately payable on the
claim. Such operator or other employer
shall thereafter immediately secure the
payment of benefits in accordance with
the provisions of this section, and
provide proof of such security to the
Director. Such security may take the
form of an indemnity bond, a deposit of
cash or negotiable securities in
compliance with §§ 726.106(c) and
726.107 of this subchapter, or any other
form acceptable to the Director.
(b) The amount of security initially
required by this section shall be
determined as follows:
(1) In a case involving an operator
subject to section 423 of the Act and
§ 726.4 of this subchapter, the amount of
the security shall not be less than
$175,000, and may be a higher amount
as determined by the Director, taking

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into account the life expectancies of the
claimant and any dependents using the
most recent life expectancy tables
published by the Social Security
Administration; or
(2) In a case involving a coal mine
construction or transportation employer,
the amount of the security shall be
determined by the Director, taking into
account the life expectancies of the
claimant and any dependents using the
most recent life expectancy tables
published by the Social Security
Administration.
(c) If the operator or other employer
fails to provide proof of such security to
the Director within 30 days of its receipt
of the Director’s request to secure the
payment of benefits issued under
paragraph (a) of this section, the
appropriate adjudication officer shall
issue an order requiring the operator or
other employer to make a deposit of
negotiable securities with a Federal
Reserve Bank in the amount required by
paragraph (b). Such securities shall
comply with the requirements of
§§ 726.106(c) and 726.107 of this
subchapter. In a case in which the
effective order was issued by a district
director, the district director shall be
considered the appropriate adjudication
officer. In any other case, the
administrative law judge who issued the
most recent decision in the case, or such
other administrative law judge as the
Chief Administrative Law Judge shall
designate, shall be considered the
appropriate adjudication officer, and
shall issue an order under this
paragraph on motion of the Director.
The administrative law judge shall have
jurisdiction to issue an order under this
paragraph notwithstanding the
pendency of an appeal of the award of
benefits with the Benefits Review Board
or court.
(d) An order issued under this section
shall be considered effective when
issued. Disputes regarding such orders
shall be resolved in accordance with
subpart F of this part.
(e) Notwithstanding any further
review of the order in accordance with
subpart F of this part, if an operator or
other employer subject to an order
issued under this section fails to comply
with such order, the appropriate
adjudication officer shall certify such
non-compliance to the appropriate
United States district court in
accordance with § 725.351(c).
(f) Security posted in accordance with
this section may be used to make
payment of benefits that become due
with respect to the claim in accordance
with § 725.502. In the event that either
the order awarding compensation or the
order issued under this section is

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vacated or reversed, the operator or
other employer may apply to the
appropriate adjudication officer for an
order authorizing the return of any
amounts deposited with a Federal
Reserve Bank and not yet disbursed, and
such application shall be granted. If at
any time the Director determines that
additional security is required beyond
that initially required by paragraph (b)
of this section, he may request the
operator or other employer to increase
the amount. Such request shall be
treated as if it were issued under
paragraph (a) of this section.
(g) If a coal mine construction or
transportation employer fails to comply
with an order issued under paragraph
(c), and such employer is a corporation,
the provisions of § 725.609 shall be
applicable to the president, secretary,
and treasurer of such employer.
§ 725.607 Payments in addition to
compensation.

(a) If any benefits payable under the
terms of an award by a district director
(§ 725.419(d)), a decision and order filed
and served by an administrative law
judge (§ 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 shall be
added to such unpaid benefits an
amount equal to 20 percent thereof,
which shall 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 shall
nevertheless be entitled to receive such
additional compensation to which he or
she may be eligible under paragraph (a)
of this section, with respect to all
amounts paid by the fund on behalf of
such operator or other employer.
(c) The fund shall not be liable for
payments in addition to compensation
under any circumstances.
§ 725.608

Interest.

(a)(1) In any case in which an operator
fails to pay benefits that are due
(§ 725.502), the beneficiary shall also be
entitled to simple annual interest,
computed from the date on which the
benefits were due. The interest shall be
computed through the date on which
the operator paid the benefits, except
that the beneficiary shall not be entitled

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to interest for any period following the
date on which the beneficiary received
payment of any benefits from the fund
pursuant to § 725.522.
(2) In any case in which an operator
is liable for the payment of retroactive
benefits, the beneficiary shall also be
entitled to simple annual interest on
such benefits, computed from 30 days
after the date of the first determination
that such an award should be made. The
first determination that such an award
should be made may be a district
director’s initial determination of
entitlement, an award made by an
administrative law judge or a decision
by the Board or a court, whichever is the
first such determination of entitlement
made upon the claim.
(3) In any case in which an operator
is liable for the payment of additional
compensation (§ 725.607), the
beneficiary shall also be entitled to
simple annual interest computed from
the date upon which the beneficiary’s
right to additional compensation first
arose.
(4) In any case in which an operator
is liable for the payment of medical
benefits, the beneficiary or medical
provider to whom such benefits are
owed shall also be entitled to simple
annual interest, computed from the date
upon which the services were rendered,
or from 30 days after the date of the first
determination that the miner is
generally entitled to medical benefits,
whichever is later. The first
determination that the miner is
generally entitled to medical benefits
may be a district director’s initial
determination of entitlement, an award
made by an administrative law judge or
a decision by the Board or a court,
whichever is the first such
determination of general entitlement
made upon the claim. The interest shall
be computed through the date on which
the operator paid the benefits, except
that the beneficiary or medical provider
shall not be entitled to interest for any
period following the date on which the
beneficiary or medical provider received
payment of any benefits from the fund
pursuant to § 725.522 or Subpart I of
this part.
(b) If an operator or other employer
fails or refuses to pay any or all benefits
due pursuant to an award of benefits or
an initial determination of eligibility
made by the district director and the
fund undertakes such payments, such
operator or other employer shall be
liable to the fund for simple annual
interest on all payments made by the
fund for which such operator is
determined liable, computed from the
first date on which such benefits are
paid by the fund, in addition to such

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operator’s liability to the fund, as is
otherwise provided in this part. Interest
payments owed pursuant to this
paragraph shall be paid directly to the
fund.
(c) In any case in which an operator
is liable for the payment of an attorney’s
fee pursuant to § 725.367, and the
attorney’s fee is payable because the
award of benefits has become final, the
attorney shall also be entitled to simple
annual interest, computed from the date
on which the attorney’s fee was
awarded. The interest shall be
computed through the date on which
the operator paid the attorney’s fee.
(d) The rates of interest applicable to
paragraphs (a), (b), and (c) of this
section shall be computed as follows:
(1) For all amounts outstanding prior
to January 1, 1982, the rate shall be 6%
simple annual interest;
(2) For all amounts outstanding for
any period during calendar year 1982,
the rate shall be 15% simple annual
interest; and
(3) For all amounts outstanding
during any period after calendar year
1982, the rate shall be simple annual
interest at the rate established by section
6621 of the Internal Revenue Code (26
U.S.C.) which is in effect for such
period.
(e) The fund shall not be liable for the
payment of interest under any
circumstances, other than the payment
of interest on advances from the United
States Treasury as provided by section
9501(c) of the Internal Revenue Code
(26 U.S.C.).
§ 725.609
persons.

Enforcement against other

In any case in which an award of
benefits creates obligations on the part
of an operator or insurer that may be
enforced under the provisions of this
subpart, such obligations may also be
enforced, in the discretion of the
Secretary or district director, as follows:
(a) In a case in which the operator is
a sole proprietorship or partnership,
against any person who owned, or was
a partner in, such operator during any
period commencing on or after the date
on which the miner was last employed
by the operator;
(b) In a case in which the operator is
a corporation that failed to secure its
liability for benefits in accordance with
section 423 of the Act and § 726.4, and
the operator has not secured its liability
for the claim in accordance with
§ 725.606, against any person who
served as the president, secretary, or
treasurer of such corporation during any
period commencing on or after the date
on which the miner was last employed
by the operator;

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(c) In a case in which the operator is
no longer capable of assuming its
liability for the payment of benefits
(§ 725.494(e)), against any operator
which became a successor operator with
respect to the liable operator (§ 725.492)
after the date on which the claim was
filed, beginning with the most recent
such successor operator;
(d) In a case in which the operator is
no longer capable of assuming its
liability for the payment of benefits
(§ 725.494(e)), and such operator was a
subsidiary of a parent company or a
product of a joint venture, or was
substantially owned or controlled by
another business entity, against such
parent entity, any member of such joint
venture, or such controlling business
entity; or
(e) Against any other person who has
assumed or succeeded to the obligations
of the operator or insurer by operation
of any state or federal law, or by any
other means.
§ 725.620 Failure to secure benefits; other
penalties.

(a) If an operator fails to discharge its
insurance obligations under the Act, the
provisions of subpart D of part 726 of
this subchapter shall apply.
(b) Any employer who knowingly
transfers, sells, encumbers, assigns, or in
any manner disposes of, conceals,
secrets, or destroys any property
belonging to such employer, after one of
its employees has been injured within
the purview of the Act, and with intent
to avoid the payment of benefits under
the Act to such miner or his or her
dependents, shall be guilty of a
misdemeanor and, upon conviction
thereof, shall be punished by a fine of
not more than $1,000, or by
imprisonment for not more than one
year, or by both. In any case where such
employer is a corporation, the president,
secretary, and treasurer thereof shall be
also severally liable for such penalty or
imprisonment as well as jointly liable
with such corporation for such fine.
(c) No agreement by a miner to pay
any portion of a premium paid to a
carrier by such miner’s employer or to
contribute to a benefit fund or
department maintained by such
employer for the purpose of providing
benefits or medical services and
supplies as required by this part shall be
valid; and any employer who makes a
deduction for such purpose from the
pay of a miner entitled to benefits under
the Act shall be guilty of a misdemeanor
and upon conviction thereof shall be
punished by a fine of not more than
$1,000.
(d) No agreement by a miner to waive
his or her right to benefits under the Act

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and the provisions of this part shall be
valid.
(e) This section shall not affect any
other liability of the employer under
this part.
§ 725.621

Reports.

(a) Upon making the first payment of
benefits and upon suspension,
reduction, or increase of payments, the
operator or other employer responsible
for making payments shall immediately
notify the district director of the action
taken, in accordance with a form
prescribed by the Office.
(b) Within 16 days after final payment
of benefits has been made by an
employer, such employer shall so notify
the district director, in accordance with
a form prescribed by the Office, stating
that such final payment, has been made,
the total amount of benefits paid, the
name of the beneficiary, and such other
information as the Office deems
pertinent.
(c) The Director may from time to
time prescribe such additional reports to
be made by operators, other employers,
or carriers as the Director may consider
necessary for the efficient
administration of the Act.
(d) Any employer who fails or refuses
to file any report required of such
employer under this section shall be
subject to a civil penalty not to exceed
$500 for each failure or refusal, which
penalty shall be determined in
accordance with the procedures set
forth in subpart D of part 726 of this
subchapter, as appropriate. The
maximum penalty applicable to any
violation of this paragraph that takes
place after January 19, 2001 shall be
$550.
(e) No request for information or
response to such request shall be
considered a report for purposes of this
section or the Act, unless it is so
designated by the Director or by this
section.
Subpart J—Medical Benefits and
Vocational Rehabilitation
§ 725.701

Availability of medical benefits.

(a) A miner who is determined to be
eligible for benefits under this part or
part 727 of this subchapter (see
§ 725.4(d)) is entitled to medical
benefits as set forth in this subpart as of
the date of his or her claim, but in no
event before January 1, 1974. No
medical benefits shall be provided to
the survivor or dependent of a miner
under this part.
(b) A responsible operator, other
employer, or where there is neither, the
fund, shall furnish a miner entitled to
benefits under this part with such

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medical, surgical, and other attendance
and treatment, nursing and hospital
services, medicine and apparatus, and
any other medical service or supply, for
such periods as the nature of the miner’s
pneumoconiosis and disability requires.
(c) The medical benefits referred to in
paragraphs (a) and (b) of this section
shall include palliative measures useful
only to prevent pain or discomfort
associated with the miner’s
pneumoconiosis or attendant disability.
(d) The costs recoverable under this
subpart shall include the reasonable
cost of travel necessary for medical
treatment (to be determined in
accordance with prevailing United
States government mileage rates) and
the reasonable documented cost to the
miner or medical provider incurred in
communicating with the employer,
carrier, or district director on matters
connected with medical benefits.
(e) If a miner receives a medical
service or supply, as described in this
section, for any pulmonary disorder,
there shall be a rebuttable presumption
that the disorder is caused or aggravated
by the miner’s pneumoconiosis. The
party liable for the payment of benefits
may rebut the presumption by
producing credible evidence that the
medical service or supply provided was
for a pulmonary disorder apart from
those previously associated with the
miner’s disability, or was beyond that
necessary to effectively treat a covered
disorder, or was not for a pulmonary
disorder at all.
(f) Evidence that the miner does not
have pneumoconiosis or is not totally
disabled by pneumoconiosis arising out
of coal mine employment is insufficient
to defeat a request for coverage of any
medical service or supply under this
subpart. In determining whether the
treatment is compensable, the opinion
of the miner’s treating physician may be
entitled to controlling weight pursuant
to § 718.104(d). A finding that a medical
service or supply is not covered under
this subpart shall not otherwise affect
the miner’s entitlement to benefits.
§ 725.702 Claims for medical benefits only
under section 11 of the Reform Act.

(a) Section 11 of the Reform Act
directs the Secretary of Health,
Education and Welfare to notify each
miner receiving benefits under part B of
title IV of the Act that he or she may file
a claim for medical treatment benefits
described in this subpart. Section
725.308(b) provides that a claim for
medical treatment benefits shall be filed
on or before December 31, 1980, unless
the period is enlarged for good cause
shown. This section sets forth the rules
governing the processing, adjudication,

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and payment of claims filed under
section 11.
(b)(1) A claim filed pursuant to the
notice described in paragraph (a) of this
section shall be considered a claim for
medical benefits only, and shall be filed,
processed, and adjudicated in
accordance with the provisions of this
part, except as provided in this section.
While a claim for medical benefits must
be treated as any other claim filed under
part C of title IV of the Act, the
Department shall accept the Social
Security Administration’s finding of
entitlement as its initial determination.
(2) In the case of a part B beneficiary
whose coal mine employment
terminated before January 1, 1970, the
Secretary shall make an immediate
award of medical benefits. Where the
part B beneficiary’s coal mine
employment terminated on or after
January 1, 1970, the Secretary shall
immediately authorize the payment of
medical benefits and thereafter inform
the responsible operator, if any, of the
operator’s right to contest the claimant’s
entitlement for medical benefits.
(c) A miner on whose behalf a claim
is filed under this section (see
§ 725.301) must have been alive on
March 1, 1978, in order for the claim to
be considered.
(d) The criteria contained in subpart
C of part 727 of this subchapter (see
§ 725.4(d)) are applicable to claims for
medical benefits filed under this
section.
(e) No determination made with
respect to a claim filed under this
section shall affect any determination
previously made by the Social Security
Administration. The Social Security
Administration may, however, reopen a
previously approved claim if the
conditions set forth in § 410.672(c) of
this chapter are present. These
conditions are generally limited to fraud
or concealment.
(f) If medical benefits are awarded
under this section, such benefits shall
be payable by a responsible coal mine
operator (see subpart G of this part), if
the miner’s last employment occurred
on or after January 1, 1970, and in all
other cases by the fund. An operator
which may be required to provide
medical treatment benefits to a miner
under this section shall have the right
to participate in the adjudication of the
claim as is otherwise provided in this
part.
(g) Any miner whose coal mine
employment terminated after January 1,
1970, may be required to submit to a
medical examination requested by an
identified operator. The unreasonable
refusal to submit to such an
examination shall have the same

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consequences as are provided under
§ 725.414.
(h) If a miner is determined eligible
for medical benefits in accordance with
this section, such benefits shall be
provided from the date of filing, except
that such benefits may also include
payments for any unreimbursed medical
treatment costs incurred personally by
such miner during the period from
January 1, 1974, to the date of filing
which are attributable to medical care
required as a result of the miner’s total
disability due to pneumoconiosis. No
reimbursement for health insurance
premiums, taxes attributable to any
public health insurance coverage, or
other deduction or payments made for
the purpose of securing third party
liability for medical care costs is
authorized by this section. If a miner
seeks reimbursement for medical care
costs personally incurred before the
filing of a claim under this section, the
district director shall require
documented proof of the nature of the
medical service provided, the identity of
the medical provider, the cost of the
service, and the fact that the cost was
paid by the miner, before
reimbursement for such cost may be
awarded.
§ 725.703

Physician defined.

The term ‘‘physician’’ includes only
doctors of medicine (MD) and
osteopathic practitioners within the
scope of their practices as defined by
State law. No treatment or medical
services performed by any other
practitioner of the healing arts is
authorized by this part, unless such
treatment or service is authorized and
supervised both by a physician as
defined in this section and the district
director.
§ 725.704 Notification of right to medical
benefits; authorization of treatment.

(a) Upon notification to a miner of
such miner’s entitlement to benefits, the
Office shall provide the miner with a
list of authorized treating physicians
and medical facilities in the area of the
miner’s residence. The miner may select
a physician from this list or may select
another physician with approval of the
Office. Where emergency services are
necessary and appropriate,
authorization by the Office shall not be
required.
(b) The Office may, on its own
initiative, or at the request of a
responsible operator, order a change of
physicians or facilities, but only where
it has been determined that the change
is desirable or necessary in the best
interest of the miner. The miner may

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change physicians or facilities subject to
the approval of the Office.
(c) If adequate treatment cannot be
obtained in the area of the claimant’s
residence, the Office may authorize the
use of physicians or medical facilities
outside such area as well as
reimbursement for travel expenses and
overnight accommodations.
§ 725.705

Arrangements for medical care.

(a) Operator liability. If an operator
has been determined liable for the
payment of benefits to a miner, the
Office shall notify such operator or
insurer of the names, addresses, and
telephone numbers of the authorized
providers of medical benefits chosen by
an entitled miner, and shall require the
operator or insurer to:
(1) Notify the miner and the providers
chosen that such operator will be
responsible for the cost of medical
services provided to the miner on
account of the miner’s total disability
due to pneumoconiosis;
(2) Designate a person or persons with
decisionmaking authority with whom
the Office, the miner and authorized
providers may communicate on matters
involving medical benefits provided
under this subpart and notify the Office,
miner and providers of such
designation;
(3) Make arrangements for the direct
reimbursement of providers for their
services.
(b) Fund liability. If there is no
operator found liable for the payment of
benefits, the Office shall make necessary
arrangements to provide medical care to
the miner, notify the miner and medical
care facility selected of the liability of
the fund, designate a person or persons
with whom the miner or provider may
communicate on matters relating to
medical care, and make arrangements
for the direct reimbursement of the
medical provider.
§ 725.706
services.

Authorization to provide medical

(a) Except as provided in paragraph
(b) of this section, medical services from
an authorized provider which are
payable under § 725.701 shall not
require prior approval of the Office or
the responsible operator.
(b) Except where emergency treatment
is required, prior approval of the Office
or the responsible operator shall be
obtained before any hospitalization or
surgery, or before ordering an apparatus
for treatment where the purchase price
exceeds $300. A request for approval of
non-emergency hospitalization or
surgery shall be acted upon
expeditiously, and approval or
disapproval will be given by telephone

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if a written response cannot be given
within 7 days following the request. No
employee of the Department of Labor,
other than a district director or the
Chief, Branch of Medical Analysis and
Services, DCMWC, is authorized to
approve a request for hospitalization or
surgery by telephone.
(c) Payment for medical services,
treatment, or an apparatus shall be made
at no more than the rate prevailing in
the community in which the providing
physician, medical facility or supplier is
located.
§ 725.707 Reports of physicians and
supervision of medical care.

(a) Within 30 days following the first
medical or surgical treatment provided
under § 725.701, the treating physician
or facility shall furnish to the Office and
the responsible operator, if any, a report
of such treatment.
(b) In order to permit continuing
supervision of the medical care
provided to the miner with respect to
the necessity, character and sufficiency
of any medical care furnished or to be
furnished, the treating physician,
facility, employer or carrier shall
provide such reports in addition to
those required by paragraph (a) of this
section as the Office may from time to
time require. Within the discretion of
the district director, payment may be
refused to any medical provider who
fails to submit any report required by
this section.
§ 725.708
benefits.

Disputes concerning medical

(a) Whenever a dispute develops
concerning medical services under this
part, the district director shall attempt
to informally resolve such dispute. In
this regard the district director may, on
his or her own initiative or at the
request of the responsible operator order
the claimant to submit to an
examination by a physician selected by
the district director.
(b) If no informal resolution is
accomplished, the district director shall
refer the case to the Office of
Administrative Law Judges for hearing
in accordance with this part. Any such
hearing shall be scheduled at the
earliest possible time and shall take
precedence over all other requests for
hearing except for prior requests for
hearing arising under this section and as
provided by § 727.405 of this subchapter
(see § 725.4(d)). During the pendency of
such adjudication, the Director may
order the payment of medical benefits
prior to final adjudication under the
same conditions applicable to benefits
awarded under § 725.522.

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80097

(c) In the development or adjudication
of a dispute over medical benefits, the
adjudication officer is authorized to take
whatever action may be necessary to
protect the health of a totally disabled
miner.
(d) Any interested medical provider
may, if appropriate, be made a party to
a dispute over medical benefits.
§ 725.710 Objective of vocational
rehabilitation.

The objective of vocational
rehabilitation is the return of a miner
who is totally disabled for work in or
around a coal mine and who is unable
to utilize those skills which were
employed in the miner’s coal mine
employment to gainful employment
commensurate with such miner’s
physical impairment. This objective
may be achieved through a program of
re-evaluation and redirection of the
miner’s abilities, or retraining in another
occupation, and selective job placement
assistance.
§ 725.711 Requests for referral to
vocational rehabilitation assistance.

Each miner who has been determined
entitled to receive benefits under part C
of title IV of the Act shall be informed
by the OWCP of the availability and
advisability of vocational rehabilitation
services. If such miner chooses to avail
himself or herself of vocational
rehabilitation, his or her request shall be
processed and referred by OWCP
vocational rehabilitation advisors
pursuant to the provisions of §§ 702.501
through 702.508 of this chapter as is
appropriate.
5. Part 726 is revised as follows:
PART 726—BLACK LUNG BENEFITS;
REQUIREMENTS FOR COAL MINE
OPERATOR’S INSURANCE
Subpart A—General
Sec.
726.1 Statutory insurance requirements for
coal mine operators.
726.2 Purpose and scope of this part.
726.3 Relationship of this part to other parts
in this subchapter.
726.4 Who must obtain insurance coverage.
726.5 Effective date of insurance coverage.
726.6 The Office of Workers’ Compensation
Programs.
726.7 Forms, submission of information.
726.8 Definitions.
Subpart B—Authorization of Self-Insurers
726.101 Who may be authorized to selfinsure.
726.102 Application for authority to
become a self-insurer; how filed;
information to be submitted.
726.103 Application for authority to selfinsure; effect of regulations contained in
this part.

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726.104 Action by the Office upon
application of operator.
726.105 Fixing the amount of security.
726.106 Type of security.
726.107 Deposits of negotiable securities
with Federal Reserve banks or the
Treasurer of the United States; authority
to sell such securities; interest thereon.
726.108 Withdrawal of negotiable
securities.
726.109 Increase or reduction in the
amount of security.
726.110 Filing of agreement and
undertaking.
726.111 Notice of authorization to selfinsure.
726.112 Reports required of self-insurer;
examination of accounts of self-insurer.
726.113 Disclosure of confidential
information.
726.114 Period of authorization as selfinsurer; reauthorization.
726.115 Revocation of authorization to selfinsure.
Subpart C—Insurance Contracts
726.201 Insurance contracts—generally.
726.202 Who may underwrite an operator’s
liability.
726.203 Federal Coal Mine Health and
Safety Act endorsement.
726.204 Statutory policy provisions.
726.205 Other forms of endorsement and
policies.
726.206 Terms of policies.
726.207 Discharge by the carrier of
obligations and duties of operator.
Reports by Carrier
726.208 Report by carrier of issuance of
policy or endorsement.
726.209 Report; by whom sent.
726.210 Agreement to be bound by report.
726.211 Name of one employer only shall
be given in each report.
726.212 Notice of cancellation.
726.213 Reports by carriers concerning the
payment of benefits.
Subpart D—Civil Money Penalties
726.300 Purpose and scope.
726.301 Definitions.
726.302 Determination of penalty.
726.303 Notification; investigation.
726.304 Notice of initial assessment.
726.305 Contents of notice.
726.306 Finality of administrative
assessment.
726.307 Form of notice of contest and
request for hearing.
726.308 Service and computation of time.
726.309 Referral to the Office of
Administrative Law Judges.
726.310 Appointment of Administrative
Law Judge and notification of hearing
date.
726.311 Evidence.
726.312 Burdens of proof.
726.313 Decision and Order of
Administrative Law Judge.
726.314 Review by the Secretary.
726.315 Contents.
726.316 Filing and service.
726.317 Discretionary review.
726.318 Final decision of the Secretary.
726.319 Retention of official record.
726.320 Collection and recovery of penalty.

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Authority: 5 U.S.C. 301, Reorganization
Plan No. 6 of 1950, 15 FR 3174, 30 U.S.C. 901
et seq., 902(f), 925, 932, 933, 934, 936, 945;
33 U.S.C. 901 et seq., Secretary’s Order 7–87,
52 FR 48466, Employment Standards Order
No. 90–02.

Subpart A—General
§ 726.1 Statutory insurance requirements
for coal mine operators.

Section 423 of title IV of the Federal
Coal Mine Health and Safety Act as
amended (hereinafter the Act) requires
each coal mine operator who is
operating or has operated a coal mine in
a State which is not included in the list
published by the Secretary (see part 722
of this subchapter) to secure the
payment of benefits for which he may
be found liable under section 422 of the
Act and the provisions of this
subchapter by either:
(a) Qualifying as a self-insurer, or
(b) By subscribing to and maintaining
in force a commercial insurance
contract (including a policy or contract
procured from a State agency).
§ 726.2

Purpose and scope of this part.

(a) This part provides rules directing
and controlling the circumstances under
which a coal mine operator shall fulfill
his insurance obligations under the Act.
(b) This Subpart A sets forth the scope
and purpose of this part and generally
describes the statutory framework
within which this part is operative.
(c) Subpart B of this part sets forth the
criteria a coal mine operator must meet
in order to qualify as a self-insurer.
(d) Subpart C of this part sets forth the
rules and regulations of the Secretary
governing contracts of insurance entered
into by coal mine operators and
commercial insurance sources for the
payment of black lung benefits under
part C of the Act.
(e) Subpart D of this part sets forth the
rules governing the imposition of civil
money penalties on coal mine operators
that fail to secure their liability under
the Act.
§ 726.3 Relationship of this part to other
parts in this subchapter.

(a) This part 726 implements and
effectuates responsibilities for the
payment of black lung benefits placed
upon coal mine operators by sections
415 and 422 of the Act and the
regulations of the Secretary in this
subchapter, particularly those set forth
in part 725 of this subchapter. All
definitions, usages, procedures, and
other rules affecting the responsibilities
of coal mine operators prescribed in part
725 of this subchapter are hereby made
applicable, as appropriate, to this part
726.

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(b) If the provisions of this part appear
to conflict with any provision of any
other part in this subchapter, the
apparently conflicting provisions
should be read harmoniously to the
fullest extent possible. If a harmonious
interpretation is not possible, the
provisions of this part should be applied
to govern the responsibilities and
obligations of coal mine operators to
secure the payment of black lung
benefits as prescribed by the Act. The
provisions of this part do not apply to
matters falling outside the scope of this
part.
§ 726.4 Who must obtain insurance
coverage.

(a) Section 423 of part C of title IV of
the Act requires each operator of a coal
mine or former operator in any State
which does meet the requirements
prescribed by the Secretary pursuant to
section 411 of part C of title IV of the
Act to self-insure or obtain a policy or
contract of insurance to guarantee the
payment of benefits for which such
operator may be adjudicated liable
under section 422 of the Act. In enacting
sections 422 and 423 of the Act
Congress has unambiguously expressed
its intent that coal mine operators bear
the cost of providing the benefits
established by part C of title IV of the
Act. Section 3 of the Act defines an
‘‘operator’’ as any owner, lessee, or
other person who operates, controls, or
supervises a coal mine.
(b) Section 422(i) of the Act clearly
recognizes that any individual or
business entity who is or was a coal
mine operator may be found liable for
the payment of pneumoconiosis benefits
after December 31, 1973. Within this
framework it is clear that the Secretary
has wide latitude for determining which
operator shall be liable for the payment
of part C benefits. Comprehensive
standards have been promulgated in
subpart G of part 725 of this subchapter
for the purpose of guiding the Secretary
in making such determination. It must
be noted that pursuant to these
standards any parent or subsidiary
corporation, any individual or corporate
partner, or partnership, any lessee or
lessor of a coal mine, any joint venture
or participant in a joint venture, any
transferee or transferor of a corporation
or other business entity, any former,
current, or future operator or any other
form of business entity which has had
or will have a substantial and
reasonably direct interest in the
operation of a coal mine may be
determined liable for the payment of
pneumoconiosis benefits after December
31, 1973. The failure of any such
business entity to self-insure or obtain a

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policy or contract of insurance shall in
no way relieve such business entity of
its obligation to pay pneumoconiosis
benefits in respect of any case in which
such business entity’s responsibility for
such payments has been properly
adjudicated. Any business entity
described in this section shall take
appropriate steps to insure that any
liability imposed by part C of the Act on
such business entity shall be
dischargeable.
§ 726.5 Effective date of insurance
coverage.

Pursuant to section 422(c) of part C of
title IV of the Act, no coal mine operator
shall be responsible for the payment of
any benefits whatsoever for any period
prior to January 1, 1974. However, coal
mine operators shall be liable as of
January 1, 1974, for the payment of
benefits in respect of claims which were
filed under section 415 of part B of title
IV of the Act after July 1, 1973. Section
415(a)(3) requires the Secretary to notify
any operator who may be liable for the
payment of benefits under part C of title
IV beginning on January 1, 1974, of the
pendency of a section 415 claim.
Section 415(a)(5) declares that any
operator who has been notified of the
pendency of a section 415 claim shall be
bound by the determination of the
Secretary as to such operator’s liability
and as to the claimant’s entitlement to
benefits as if the claim were filed under
part C of title IV of the Act and section
422 thereof had been applicable to such
operator. Therefore, even though no
benefit payments shall be required of an
operator prior to January 1, 1974, the
liability for these payments may be
finally adjudicated at any time after July
1, 1973. Neither the failure of an
operator to exercise his right to
participate in the adjudication of such a
claim nor the failure of an operator to
obtain insurance coverage in respect of
claims filed after June 30, 1973, but
before January 1, 1974, shall excuse
such operator from his liability for the
payment of benefits to such claimants
under part C of title IV of the Act.
§ 726.6 The Office of Workers’
Compensation Programs.

The Office of Workers’ Compensation
Programs (hereinafter the Office or
OWCP) is that subdivision of the
Employment Standards Administration
of the U.S. Department of Labor which
has been empowered by the Secretary of
Labor to carry out his functions under
section 415 and part C of title IV of the
Act. As noted throughout this part 726
the Office shall perform a number of
functions with respect to the regulation
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commercial insurance programs. All
correspondence with or submissions to
the Office should be addressed as
follows:

Subpart B—Authorization of SelfInsurers
§ 726.101
insure.

Division of Coal Mine Workers’
Compensation, Office of Workers’
Compensation Programs, Employment
Standards Administration, U.S.
Department of Labor, Washington, D.C.
20210
§ 726.7

Forms, submission of information.

Any information required by this part
726 to be submitted to the Office of
Workmen’s Compensation Programs or
any other office or official of the
Department of Labor, shall be submitted
on such forms or in such manner as the
Secretary deems appropriate and has
authorized from time to time for such
purposes.
§ 726.8

Definitions.

In addition to the definitions
provided in part 725 of this subchapter,
the following definitions apply to this
part:
(a) Director means the Director, Office
of Workers’ Compensation Programs,
and includes any official of the Office of
Workers’ Compensation Programs
authorized by the Director to perform
any of the functions of the Director
under this part and part 725 of this
subchapter.
(b) Person includes any individual,
partnership, corporation, association,
business trust, legal representative, or
organized group of persons.
(c) Secretary means the Secretary of
Labor or such other official as the
Secretary shall designate to carry out
any responsibility under this part.
(d) The terms employ and
employment shall be construed as
broadly as possible, and shall include
any relationship under which an
operator retains the right to direct,
control, or supervise the work
performed by a miner, or any other
relationship under which an operator
derives a benefit from the work
performed by a miner. Any individuals
who participate with one or more
persons in the mining of coal, such as
owners, proprietors, partners, and joint
venturers, whether they are
compensated by wages, salaries, piece
rates, shares, profits, or by any other
means, shall be deemed employees. It is
the specific intention of this paragraph
to disregard any financial arrangement
or business entity devised by the actual
owners or operators of a coal mine or
coal mine-related enterprise to avoid the
payment of benefits to miners who,
based upon the economic reality of their
relationship to this enterprise, are, in
fact, employees of the enterprise.

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Who may be authorized to self-

(a) Pursuant to section 423 of part C
of title IV of the Act, authorization to
self-insure against liability incurred by
coal mine operators on account of the
total disability or death of miners due to
pneumoconiosis may be granted or
denied in the discretion of the
Secretary. The provisions of this subpart
describe the minimum requirements
established by the Secretary for
determining whether any particular coal
mine operator shall be authorized as a
self-insurer.
(b) The minimum requirements which
must be met by any operator seeking
authorization to self-insure are as
follows:
(1) The operator must, at the time of
application, have been in the business
of mining coal for at least the 3
consecutive years prior to such
application; and,
(2) The operator must demonstrate the
administrative capacity to fully service
such claims as may be filed against him;
and,
(3) The operator’s average current
assets over the preceding 3 years (in
computing average current assets such
operator shall not include the amount of
any negotiable securities which he may
be required to deposit to secure his
obligations under the Act) must exceed
current liabilities by the sum of—
(i) The estimated aggregate amount of
black lung benefits (including medical
benefits) which such operator may
expect to be required to pay during the
ensuing year; and,
(ii) The annual premium cost for any
indemnity bond purchased; and
(4) Such operator must obtain
security, in a form approved by the
Office (see § 726.104) and in an amount
to be determined by the Office (see
§ 726.105); and
(5) No operator with fewer than 5 fulltime employee-miners shall be
permitted to self-insure.
(c) No operator who is unable to meet
the requirements of this section should
apply for authorization to self-insure
and no application for self-insurance
shall be approved by the Office until
such time as the amount prescribed by
the Office has been secured in
accordance with this subpart.
§ 726.102 Application for authority to
become a self-insurer; how filed;
information to be submitted.

(a) How filed. Application for
authority to become a self-insurer shall
be addressed to the Office and be made

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on a form provided by the Office. Such
application shall be signed by the
applicant over his typewritten name and
if the applicant is not an individual, by
the principal officer of the applicant
duly authorized to make such
application over his typewritten name
and official designation and shall be
sworn to by him. If the applicant is a
corporation, the corporate seal shall be
affixed. The application shall be filed
with the Office in Washington, D.C.
(b) Information to be submitted. Each
application for authority to self-insure
shall contain:
(1) A statement of the employer’s
payroll report for each of the preceding
3 years;
(2) A statement of the average number
of employees engaged in employment
within the purview of the Act for each
of the preceding 3 years;
(3) A list of the mine or mines to be
covered by any particular self-insurance
agreement. Each such mine or mines
listed shall be described by name and
reference shall be made to the Federal
Identification Number assigned such
mine by the Bureau of Mines, U.S.
Department of the Interior;
(4) A certified itemized statement of
the gross and net assets and liabilities of
the operator for each of the 3 preceding
years in such manner as prescribed by
the Office;
(5) A statement demonstrating the
applicant’s administrative capacity to
provide or procure adequate servicing
for a claim including both medical and
dollar claims; and
(6) In addition to the aforementioned,
the Office may in its discretion, require
the applicant to submit such further
information or such evidence as the
Office may deem necessary to have in
order to enable it to give adequate
consideration to such application.
(c) Who may file. An application for
authorization to self-insure may be filed
by any parent or subsidiary corporation,
partner or partnership, party to a joint
venture or joint venture, individual, or
other business entity which may be
determined liable for the payment of
black lung benefits under part C of title
IV of the Act, regardless of whether such
applicant is directly engaged in the
business of mining coal. However, in
each case for which authorization to
self-insure is granted, the agreement and
undertaking filed pursuant to § 726.110
and the security deposit shall be
respectively filed by and deposited in
the name of the applicant only.

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§ 726.103 Application for authority to selfinsure; effect of regulations contained in
this part.

reduction in the amount of security
initially required is warranted.

As appropriate, each of the
regulations, interpretations and
requirements contained in this part 726
including those described in subpart C
of this part shall be binding upon each
applicant under this subpart, and the
applicant’s consent to be bound by all
requirements of the said regulations
shall be deemed to be included in and
a part of the application, as fully as
though written therein.

§ 726.105

§ 726.104 Action by the Office upon
application of operator.

(a) Upon receipt of a completed
application for authorization to selfinsure, the Office shall, after
examination of the information
contained in the application, either
deny the request or determine the
amount of security which must be given
by the applicant to guarantee the
payment of benefits and the discharge of
all other obligations which may be
required of such applicant under the
Act.
(b) The applicant shall thereafter be
notified that he may give security in the
amount fixed by the Office (see
§ 726.105):
(1) In the form of an indemnity bond
with sureties satisfactory to the Office;
(2) By a deposit of negotiable
securities with a Federal Reserve Bank
in compliance with §§ 726.106(c) and
726.107;
(3) In the form of a letter of credit
issued by a financial institution
satisfactory to the Office (except that a
letter of credit shall not be sufficient by
itself to satisfy a self-insurer’s
obligations under this part); or
(4) By funding a trust pursuant to
section 501(c)(21) of the Internal
Revenue Code (26 U.S.C.).
(c) Any applicant who cannot meet
the security deposit requirements
imposed by the Office should proceed to
obtain a commercial policy or contract
of insurance. Any applicant for
authorization to self-insure whose
application has been rejected or who
believes that the security deposit
requirements imposed by the Office are
excessive may, in writing, request that
the Office review its determination. A
request for review should contain such
information as may be necessary to
support the request that the amount of
security required be reduced.
(d) Upon receipt of any such request,
the Office shall review its previous
determination in light of any new or
additional information submitted and
inform the applicant whether or not a

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Fixing the amount of security.

The Office shall require the amount of
security which it deems necessary and
sufficient to secure the performance by
the applicant of all obligations imposed
upon him as an operator by the Act. In
determining the amount of security
required, the factors that the Office will
consider include, but are not limited to,
the operator’s net worth, the existence
of a guarantee by a parent corporation,
and the operator’s existing liability for
benefits. The Office shall also consider
such other factors as it considers
relevant to any particular case. The
amount of security which shall be
required may be increased or decreased
when experience or changed conditions
so warrant.
§ 726.106

Type of security.

(a) The Office shall determine the
type or types of security which an
applicant shall or may procure. (See
§ 726.104(b).)
(b) In the event the indemnity bond
option is selected, the bond shall be in
such form and contain such provisions
as the Office may prescribe: Provided,
That only corporations may act as
sureties on such indemnity bonds. In
each case in which the surety on any
such bond is a surety company, such
company must be one approved by the
U.S. Treasury Department under the
laws of the United States and the
applicable rules and regulations
governing bonding companies (see
Department of Treasury’s Circular—
570).
(c) An applicant for authorization to
self-insure based on a deposit of
negotiable securities, in the amount
fixed by the Office, shall deposit any
negotiable securities acceptable as
security for the deposit of public
moneys of the United States under
regulations issued by the Secretary of
the Treasury. (See 31 CFR Part 225.) The
approval, valuation, acceptance, and
custody of such securities is hereby
committed to the several Federal
Reserve Banks and the Treasurer of the
United States.
§ 726.107 Deposits of negotiable securities
with Federal Reserve banks or the
Treasurer of the United States; authority to
sell such securities; interest thereon.

Deposits of securities provided for by
the regulations in this part shall be
made with any Federal Reserve bank or
any branch of a Federal Reserve bank
designated by the Office, or the
Treasurer of the United States, and shall
be held subject to the order of the Office
with power in the Office, in its

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discretion in the event of default by the
said self-insurer, to collect the interest
as it may become due, to sell the
securities or any of them as may be
required to discharge the obligations of
the self-insurer under the Act and to
apply the proceeds to the payment of
any benefits or medical expenses for
which the self-insurer may be liable.
The Office may, however, whenever it
deems it unnecessary to resort to such
securities for the payment of benefits,
authorize the self-insurer to collect
interest on the securities deposited by
him.
§ 726.108 Withdrawal of negotiable
securities.

No withdrawal of negotiable
securities deposited by a self-insurer,
shall be made except upon
authorization by the Office. A selfinsurer discontinuing business, or
discontinuing operations within the
purview of the Act, or providing
security for the payment of benefits by
commercial insurance under the
provisions of the Act may apply to the
Office for the withdrawal of securities
deposited under the regulations in this
part. With such application shall be
filed a sworn statement setting forth:
(a) A list of all outstanding cases in
which benefits are being paid, with the
names of the miners and other
beneficiaries, giving a statement of the
amounts of benefits paid and the
periods for which such benefits have
been paid; and
(b) A similar list of all pending cases
in which no benefits have as yet been
paid. In such cases withdrawals may be
authorized by the Office of such
securities as in the opinion of the Office
may not be necessary to provide
adequate security for the payment of
outstanding and potential liabilities of
such self-insurer under the Act.
§ 726.109 Increase or reduction in the
amount of security.

Whenever in the opinion of the Office
the amount of security given by the selfinsurer is insufficient to afford adequate
security for the payment of benefits and
medical expenses under the Act, the
self-insurer shall, upon demand by the
Office, file such additional security as
the Office may require. The Office may
reduce the amount of security at any
time on its own initiative, or upon the
application of a self-insurer, when it
believes the facts warrant a reduction. A
self-insurer seeking a reduction shall
furnish such information as the Office
may request relative to his current
affairs, the nature and hazard of the
work of his employees, the amount of
the payroll of his employees engaged in

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coal mine employment within the
purview of the Act, his financial
condition, and such other evidence as
may be deemed material, including a
record of benefit payments he has made.
§ 726.110 Filing of agreement and
undertaking.

(a) In addition to the requirement that
adequate security be procured as set
forth in this subpart, the applicant for
the authorization to self-insure shall, as
a condition precedent to receiving such
authorization, execute and file with the
Office an agreement and undertaking in
a form prescribed and provided by the
Office in which the applicant shall
agree:
(1) To pay when due, as required by
the Act, all benefits payable on account
of total disability or death of any of its
employee-miners;
(2) To furnish medical, surgical,
hospital, and other attendance,
treatment, and care as required by the
Act;
(3) To provide security in a form
approved by the Office (see § 726.104)
and in an amount established by the
Office (see § 726.105), as elected in the
application;
(4) To authorize the Office to sell any
negotiable securities so deposited or any
part thereof, and to pay from the
proceeds thereof such benefits, medical,
and other expenses and any accrued
penalties imposed by law as the Office
may find to be due and payable.
(b) When an applicant has provided
the requisite security, he shall send to
the Office in Washington, D.C. a
completed agreement and undertaking,
together with satisfactory proof that his
obligations and liabilities under the Act
have been secured.
§ 726.111
insure.

Notice of authorization to self-

Upon receipt of a completed
agreement and undertaking and
satisfactory proof that adequate security
has been provided, an applicant for
authorization to self-insure shall be
notified by the Office in writing that he
is authorized to self-insure to meet the
obligations imposed upon him by
section 415 and part C of title IV of the
Act.
§ 726.112 Reports required of self-insurer;
examination of accounts of self-insurer.

(a) Each operator who has been
authorized to self-insure under this part
shall submit to the Office reports
containing such information as the
Office may from time to time require or
prescribe.
(b) Whenever it deems it to be
necessary, the Office may inspect or
examine the books of account, records,

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80101

and other papers of a self-insurer for the
purpose of verifying any financial
statement submitted to the Office by the
self-insurer or verifying any information
furnished to the Office in any report
required by this section, or any other
section of the regulations in this part,
and such self-insurer shall permit the
Office or its duly authorized
representative to make such an
inspection or examination as the Office
shall require. In lieu of this requirement
the Office may in its discretion accept
an adequate report of a certified public
accountant.
(c) Failure to submit or make available
any report or information requested by
the Office from an authorized selfinsurer pursuant to this section may, in
appropriate circumstances result in a
revocation of the authorization to selfinsure.
§ 726.113 Disclosure of confidential
information.

Any financial information or records,
or other information relating to the
business of an authorized self-insurer or
applicant for the authorization of selfinsurance obtained by the Office shall
be exempt from public disclosure to the
extent provided in 5 U.S.C. 552(b) and
the applicable regulations of the
Department of Labor promulgated
thereunder. (See 29 CFR part 70.)
§ 726.114 Period of authorization as selfinsurer; reauthorization.

(a) No initial authorization to selfinsure shall be granted for a period in
excess of 18 months. A self-insurer who
has made an adequate deposit of
negotiable securities in compliance with
§§ 726.106(c) and 726.107 will be
reauthorized for the ensuing fiscal year
without additional security if the Office
finds that his experience as a selfinsurer warrants such action. If the
Office determines that such selfinsurer’s experience indicates a need for
the deposit of additional security, no
reauthorization shall be issued for the
ensuing fiscal year until the Office
receives satisfactory proof that the
requisite amount of additional securities
has been deposited. A self-insurer who
currently has on file an indemnity bond
will receive from the Office each year a
bond form for execution in
contemplation of reauthorization, and
the submission of such bond duly
executed in the amount indicated by the
Office will be deemed and treated as
such self-insurer’s application for
reauthorization for the ensuing fiscal
year.
(b) In each case for which there is an
approved change in the amount of

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security provided, a new agreement and
undertaking shall be executed.
(c) Each operator authorized to selfinsure under this part shall apply for
reauthorization for any period during
which it engages in the operation of a
coal mine and for additional periods
after it ceases operating a coal mine.
Upon application by the operator,
accompanied by proof that the security
it has posted is sufficient to secure all
benefits potentially payable to miners
formerly employed by the operator, the
Office shall issue a certification that the
operator is exempt from the
requirements of this part based on its
prior operation of a coal mine. The
provisions of subpart D of this part shall
be applicable to any operator that fails
to apply for reauthorization in
accordance with the provisions of this
section.
§ 726.115 Revocation of authorization to
self-insure.

The Office may for good cause shown
suspend or revoke the authorization of
any self-insurer. Failure by a self-insurer
to comply with any provision or
requirement of law or of the regulations
in this part, or with any lawful order or
communication of the Office, or the
failure or insolvency of the surety on his
indemnity bond, or impairment of
financial responsibility of such selfinsurer, may be deemed good cause for
such suspension or revocation.
Subpart C—Insurance Contracts
§ 726.201

Insurance contracts—generally.

Each operator of a coal mine who has
not obtained authorization as a selfinsurer shall purchase a policy or enter
into a contract with a commercial
insurance carrier or State agency.
Pursuant to authority contained in
sections 422(a) and 423(b) and (c) of
part C of title IV of the Act, this subpart
describes a number of provisions which
are required to be incorporated in a
policy or contract of insurance obtained
by a coal mine operator for the purpose
of meeting the responsibility imposed
upon such operator by the Act in
respect of the total disability or death of
miners due to pneumoconiosis.
§ 726.202 Who may underwrite an
operator’s liability.

Each coal mine operator who is not
authorized to self-insure shall insure
and keep insured the payment of
benefits as required by the Act with any
stock company or mutual company or
association, or with any other person, or
fund, including any State fund while
such company, association, person, or
fund is authorized under the law of any

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State to insure workmen’s
compensation.
§ 726.203 Federal Coal Mine Health and
Safety Act endorsement.

(a) The following form of
endorsement shall be attached and
applicable to the standard workmen’s
compensation and employer’s liability
policy prepared by the National Council
on Compensation Insurance affording
coverage under the Federal Coal Mine
Health and Safety Act of 1969, as
amended:
It is agreed that: (1) With respect to
operations in a State designated in item 3 of
the declarations, the unqualified term
‘‘workmen’s compensation law’’ includes
part C of title IV of the Federal Coal Mine
Health and Safety Act of 1969, 30 U.S.C.
section 931–936, and any laws amendatory
thereto, or supplementary thereto, which
may be or become effective while this policy
is in force, and definition (a) of Insuring
Agreement III is amended accordingly; (2)
with respect to such insurance as is afforded
by this endorsement, (a) the States, if any,
named below, shall be deemed to be
designated in item 3 of the declaration; (b)
Insuring Agreement IV(2) is amended to read
‘‘by disease caused or aggravated by exposure
of which the last day of the last exposure, in
the employment of the insured, to conditions
causing the disease occurs during the policy
period, or occurred prior to (effective date)
and claim based on such disease is first filed
against the insured during the policy
period.’’

(b) The term ‘‘effective date’’ as used
in paragraph (a) of this section shall be
construed to mean the effective date of
the first policy or contract of insurance
procured by an operator for purposes of
meeting the obligations imposed on
such operator by section 423 of part C
of title IV of the Act.
(c) The Act contains a number of
provisions and imposes a number of
requirements on operators which differ
in varying degrees from traditional
workmen’s compensation concepts. To
avoid unnecessary administrative delays
and expense which might be occasioned
by the drafting of an entirely new
standard workmen’s compensation
policy specially tailored to the Act, the
Office has determined that the existing
standard workmen’s compensation
policy subject to the endorsement
provisions contained in paragraph (a) of
this section shall be acceptable for
purposes of writing commercial
insurance coverage under the Act.
However, to avoid undue disputes over
the meaning of certain policy provisions
and in accordance with the authority
contained in section 423(b)(3) of the
Act, the Office has determined that the
following requirements shall be
applicable to all commercial insurance
policies obtained by an operator for the

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purpose of insuring any liability
incurred pursuant to the Act:
(1) Operator liability. (i) Section 415
and part C of title IV of the Act provide
coverage for total disability or death due
to pneumoconiosis to all claimants who
meet the eligibility requirements
imposed by the Act. Section 422 of the
Act and the regulations duly
promulgated thereunder (part 725 of
this subchapter) set forth the conditions
under which a coal mine operator may
be adjudicated liable for the payment of
benefits to an eligible claimant for any
period subsequent to December 31,
1973.
(ii) Section 422(c) of the Act
prescribes that except as provided in
422(i) (see paragraph (c)(2) of this
section) an operator may be adjudicated
liable for the payment of benefits in any
case if the total disability or death due
to pneumoconiosis upon which the
claim is predicated arose at least in part
out of employment in a mine in any
period during which it was operated by
such operator. The Act does not require
that such employment which
contributed to or caused the total
disability or death due to
pneumoconiosis occur subsequent to
any particular date in time. The
Secretary in establishing a formula for
determining the operator liable for the
payment of benefits (see subpart D of
part 725 of this subchapter) in respect
of any particular claim, must therefore,
within the framework and intent of title
IV of the Act find in appropriate cases
that an operator is liable for the
payment of benefits for some period
after December 31, 1973, even though
the employment upon which an
operator’s liability is based occurred
prior to July 1, 1973, or prior to the
effective date of the Act or the effective
date of any amendments thereto, or
prior to the effective date of any policy
or contract of insurance obtained by
such operator. The endorsement
provisions contained in paragraph (a) of
this section shall be construed to
incorporate these requirements in any
policy or contract of insurance obtained
by an operator to meet the obligations
imposed on such operator by section
423 of the Act.
(2) Successor liability. Section 422(i)
of part C of title IV of the Act requires
that a coal mine operator who after
December 30, 1969, acquired his mine
or substantially all of the assets thereof
from a person who was an operator of
such mine on or after December 30,
1969, shall be liable for and shall secure
the payment of benefits which would
have been payable by the prior operator
with respect to miners previously
employed in such mine if the

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acquisition had not occurred and the
prior operator had continued to operate
such mine. In the case of an operator
who is determined liable for the
payment of benefits under section 422(i)
of the Act and part 725 of this
subchapter, such liability shall accrue to
such operator regardless of the fact that
the miner on whose total disability or
death the claim is predicated was never
employed by such operator in any
capacity. The endorsement provisions
contained in paragraph (a) of this
section shall be construed to incorporate
this requirement in any policy or
contract of insurance obtained by an
operator to meet the obligations
imposed on such operator by section
423 of the Act.
(3) Medical eligibility. Pursuant to
section 422(h) of part C of title IV of the
Act and the regulations described
therein (see subpart D of part 410 of this
title) benefits shall be paid to eligible
claimants on account of total disability
or death due to pneumoconiosis and in
cases where the miner on whose death
a claim is predicated was totally
disabled by pneumoconiosis at the time
of his death regardless of the cause of
such death. The endorsement provisions
contained in paragraph (a) of this
section shall be construed to incorporate
these requirements in any policy or
contract of insurance obtained by an
operator to meet the obligations
imposed on such operator by section
423 of the Act.
(4) Payment of benefits, rates. Section
422(c) of the Act by incorporating
section 412(a) of the Act requires the
payment of benefits at a rate equal to 50
per centum of the minimum monthly
payment to which a Federal employee
in grade GS–2, who is totally disabled
is entitled at the time of payment under
Chapter 81 of title 5, United States
Code. These benefits are augmented on
account of eligible dependents as
appropriate (see section 412(a) of part B
of title IV of the Act). Since the dollar
amount of benefits payable to any
beneficiary is required to be computed
at the time of payment such amounts
may be expected to increase from time
to time as changes in the GS–2 grade are
enacted into law. The endorsement
provisions contained in paragraph (a) of
this section shall be construed to
incorporate in any policy or contract of
insurance obtained by an operator to
meet the obligations imposed on such
operator by section 423 of the Act, the
requirement that the payment of
benefits to eligible beneficiaries shall be
made in such dollar amounts as are
prescribed by section 412(a) of the Act
computed at the time of payment.

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(5) Compromise and waiver of
benefits. Section 422(a) of part C of title
IV of the Act by incorporating sections
15(b) and 16 of the Longshoremen’s and
Harbor Workers’ Compensation Act (33
U.S.C. 915(b) and 916) prohibits the
compromise and/or waiver of claims for
benefits filed or benefits payable under
section 415 and part C of title IV of the
Act. The endorsement provisions
contained in paragraph (a) of this
section shall be construed to incorporate
these prohibitions in any policy or
contract of insurance obtained by an
operator to meet the obligations
imposed on such operator by section
423 of the Act.
(6) Additional requirements. In
addition to the requirements described
in paragraph (c)(1) through (5) of this
section, the endorsement provisions
contained in paragraph (a) of this
section shall, to the fullest extent
possible, be construed to bring any
policy or contract of insurance entered
into by an operator for the purpose of
insuring such operator’s liability under
part C of title IV of the Act into
conformity with the legal requirements
placed upon such operator by section
415 and part C of title IV of the Act and
parts 720 and 725 of this subchapter.
(d) Nothing in this section shall
relieve any operator or carrier of the
duty to comply with any State
workmen’s compensation law, except
insofar as such State law is in conflict
with the provisions of this section.
§ 726.204

Statutory policy provisions.

Pursuant to section 423(b) of part C of
title IV of the Act each policy or
contract of insurance obtained to
comply with the requirements of section
423(a) of the Act must contain or shall
be construed to contain—
(a) A provision to pay benefits
required under section 422 of the Act,
notwithstanding the provisions of the
State workmen’s compensation law
which may provide for lesser payments;
and,
(b) A provision that insolvency or
bankruptcy of the operator or discharge
therein (or both) shall not relieve the
carrier from liability for such payments.
§ 726.205
policies.

Other forms of endorsement and

Forms of endorsement or policies
other than that described in § 726.203
may be entered into by operators to
insure their liability under the Act.
However, any form of endorsement or
policy which materially alters or
attempts to materially alter an operator’s
liability for the payment of any benefits
under the Act shall be deemed
insufficient to discharge such operator’s

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80103

duties and responsibilities as prescribed
in part C of title IV of the Act. In any
event, the failure of an operator to
obtain an adequate policy or contract of
insurance shall not affect such
operator’s liability for the payment of
any benefits for which he is determined
liable.
§ 726.206

Terms of policies.

A policy or contract of insurance shall
be issued for the term of 1 year from the
date that it becomes effective, but if
such insurance be not needed except for
a particular contract or operation, the
term of the policy may be limited to the
period of such contract or operation.
§ 726.207 Discharge by the carrier of
obligations and duties of operator.

Every obligation and duty in respect
of payment of benefits, the providing of
medical and other treatment and care,
the payment or furnishing of any other
benefit required by the Act and in
respect of the carrying out of the
administrative procedure required or
imposed by the Act or the regulations in
this part or part 725 of this subchapter
upon an operator shall be discharged
and carried out by the carrier as
appropriate. Notice to or knowledge of
an operator of the occurrence of total
disability or death due to
pneumoconiosis shall be notice to or
knowledge of such carrier. Jurisdiction
of the operator by a district director,
administrative law judge, the Office, or
appropriate appellate authority under
the Act shall be jurisdiction of such
carrier. Any requirement under any
benefits order, finding, or decision shall
be binding upon such carrier in the
same manner and to the same extent as
upon the operator.
Reports by Carrier
§ 726.208 Report by carrier of issuance of
policy or endorsement.

Each carrier shall report to the Office
each policy and endorsement issued,
canceled, or renewed by it to an
operator. The report shall be made in
such manner and on such form as the
Office may require.
§ 726.209

Report; by whom sent.

The report of issuance, cancellation,
or renewal of a policy and endorsement
provided for in § 726.208 shall be sent
by the home office of the carrier, except
that any carrier may authorize its agency
or agencies to make such reports to the
Office.
§ 726.210
report.

Agreement to be bound by

Every carrier seeking to write
insurance under the provisions of the

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Act shall be deemed to have agreed that
the acceptance by the Office of a report
of the issuance or renewal of a policy of
insurance, as provided for by § 726.208
shall bind the carrier to full liability for
the obligations under the Act of the
operator named in said report. It shall
be no defense to this agreement that the
carrier failed or delayed to issue, cancel,
or renew the policy to the operator
covered by this report.
§ 726.211 Name of one employer only shall
be given in each report.

A separate report of the issuance or
renewal of a policy and endorsement,
provided for by § 726.208, shall be made
for each operator covered by a policy. If
a policy is issued or renewed insuring
more than one operator, a separate
report for each operator so covered shall
be sent to the Office with the name of
only one operator on each such report.
§ 726.212

Notice of cancellation.

Cancellation of a contract or policy of
insurance issued under authority of the
Act shall not become effective otherwise
than as provided by 33 U.S.C. 936(b);
and notice of a proposed cancellation
shall be given to the Office and to the
operator in accordance with the
provisions of 33 U.S.C. 912(c), 30 days
before such cancellation is intended to
be effective (see section 422(a) of part C
of title IV of the Act).
§ 726.213 Reports by carriers concerning
the payment of benefits.

Pursuant to 33 U.S.C. 914(c) as
incorporated by section 422(a) of part C
of title IV of the Act and § 726.207 each
carrier issuing a policy or contract of
insurance under the Act shall upon
making the first payment of benefits and
upon the suspension of any payment in
any case, immediately notify the Office
in accordance with a form prescribed by
the Office that payment of benefit has
begun or has been suspended as the case
may be. In addition, each such carrier
shall at the request of the Office submit
to the Office such additional
information concerning policies or
contracts of insurance issued to
guarantee the payment of benefits under
the Act and any benefits paid
thereunder, as the Office may from time
to time require to carry out its
responsibilities under the Act.
Subpart D—Civil Money Penalties
§ 726.300

Purpose and scope.

Any operator which is required to
secure the payment of benefits under
section 423 of the Act and § 726.4 and
which fails to secure such benefits, shall
be subject to a civil penalty of not more
than $1,000 for each day during which

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such failure occurs. If the operator is a
corporation, the president, secretary,
and treasurer of the operator shall also
be severally liable for the penalty based
on the operator’s failure to secure the
payment of benefits. This subpart
defines those terms necessary for
administration of the civil money
penalty provisions, describes the criteria
for determining the amount of penalty
to be assessed, and sets forth applicable
procedures for the assessment and
contest of penalties.
§ 726.301

Definitions.

In addition to the definitions
provided in part 725 of this subchapter
and § 726.8, the following definitions
apply to this subpart:
(a) Division Director means the
Director, Division of Coal Mine
Workers’ Compensation, Office of
Workers’ Compensation Programs,
Employment Standards Administration,
or such other official authorized by the
Division Director to perform any of the
functions of the Division Director under
this subpart.
(b) President, secretary, or treasurer
means the officers of a corporation as
designated pursuant to the laws and
regulations of the state in which the
corporation is incorporated or, if that
state does not require the designation of
such officers, the employees of a
company who are performing the work
usually performed by such officers in
the state in which the corporation’s
principal place of business is located.
(c) Principal means any person who
has an ownership interest in an operator
that is not a corporation, and shall
include, but is not limited to, partners,
sole proprietors, and any other person
who exercises control over the operation
of a coal mine.
§ 726.302

Determination of penalty.

(a) The following method shall be
used for determining the amount of any
penalty assessed under this subpart.
(b) The penalty shall be determined
by multiplying the daily base penalty
amount or amounts, determined in
accordance with the formula set forth in
this section, by the number of days in
the period during which the operator is
subject to the security requirements of
section 423 of the Act and § 726.4, and
fails to secure its obligations under the
Act. The period during which an
operator is subject to liability for a
penalty for failure to secure its
obligations shall be deemed to
commence on the first day on which the
operator met the definition of the term
‘‘operator’’ as set forth in § 725.101 of
this subchapter. The period shall be
deemed to continue even where the

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operator has ceased coal mining and any
related activity, unless the operator
secured its liability for all previous
periods through a policy or policies of
insurance obtained in accordance with
subpart C of this part or has obtained a
certification of exemption in accordance
with the provisions of § 726.114.
(c)(1) A daily base penalty amount
shall be determined for all periods up to
and including the 10th day after the
operator’s receipt of the notification sent
by the Director pursuant to § 726.303,
during which the operator failed to
secure its obligations under section 423
of the Act and § 726.4.
(2)(i) The daily base penalty amount
shall be determined based on the
number of persons employed in coal
mine employment by the operator, or
engaged in coal mine employment on
behalf of the operator, on each day of
the period defined by this section, and
shall be computed as follows:
Penalty
(per day)

Employees
Less than 25 .............................
25–50 ........................................
51–100 ......................................
More than 100 ..........................

$100
200
300
400

(ii) For any period after the operator
has ceased coal mining and any related
activity, the daily penalty amount shall
be computed based on the largest
number of persons employed in coal
mine employment by the operator, or
engaged in coal mine employment on
behalf of the operator, on any day while
the operator was engaged in coal mining
or any related activity. For purposes of
this section, it shall be presumed, in the
absence of evidence to the contrary, that
any person employed by an operator is
employed in coal mine employment.
(3) In any case in which the operator
had prior notice of the applicability of
the Black Lung Benefits Act to its
operations, the daily base penalty
amounts set forth in paragraph (c)(2)(i)
of this section shall be doubled. Prior
notice may be inferred where the
operator, or an entity in which the
operator or any of its principals had an
ownership interest, or an entity in
which the operator’s president,
secretary, or treasurer were employed:
(i) Previously complied with section
423 of the Act and § 726.4;
(ii) Was notified of its obligation to
comply with section 423 of the Act and
§ 726.4; or
(iii) Was notified of its potential
liability for a claim filed under the
Black Lung Benefits Act pursuant to
§ 725.407 of this subchapter.
(4) Commencing with the 11th day
after the operator’s receipt of the

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notification sent by the Director
pursuant to § 726.303, the daily base
penalty amounts set forth in paragraph
(c)(2)(i) shall be increased by $100.
(5) In any case in which the operator,
or any of its principals, or an entity in
which the operator’s president,
secretary, or treasurer were employed,
has been the subject of a previous
penalty assessment under this part, the
daily base penalty amounts shall be
increased by $300, up to a maximum
daily base penalty amount of $1,000.
The maximum daily base penalty
amount applicable to any violation of
§ 726.4 that takes place after January 19,
2001 shall be $1,100.
(d) The penalty shall be subject to
reduction for any period during which
the operator had a reasonable belief that
it was not required to comply with
section 423 of the Act and § 726.4 or a
reasonable belief that it had obtained
insurance coverage to comply with
section 423 of the Act and § 726.4. A
notice of contest filed in accordance
with § 726.307 shall not be sufficient to
establish a reasonable belief that the
operator was not required to comply
with the Act and regulations.
§ 726.303

Notification; investigation.

(a) If the Director determines that an
operator has violated the provisions of
section 423 of the Act and § 726.4, he
or she shall notify the operator of its
violation and request that the operator
immediately secure the payment of
benefits. Such notice shall be sent by
certified mail.
(b) The Director shall also direct the
operator to supply information relevant
to the assessment of a penalty. Such
information, which shall be supplied
within 30 days of the Director’s request,
may include:
(1) The date on which the operator
commenced its operation of a coal mine;
(2) The number of persons employed
by the operator since it began operating
a coal mine and the dates of their
employment; and
(3) The identity and last known
address:
(i) In the case of a corporation, of all
persons who served as president,
secretary, and treasurer of the operator
since it began operating a coal mine; or
(ii) In the case of an operator which
is not incorporated, of all persons who
were principals of the operator since it
began operating a coal mine;
(c) In conducting any investigation of
an operator under this subpart, the
Division Director shall have all of the
powers of a district director, as set forth
at § 725.351(a) of this subchapter. For
purposes of § 725.351(c), the Division

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Director shall be considered to sit in the
District of Columbia.
§ 726.304

Notice of initial assessment.

(a) After an operator receives
notification under § 726.303 and fails to
secure its obligations for the period
defined in § 726.302(b), and following
the completion of any investigation, the
Director may issue a notice of initial
penalty assessment in accordance with
the criteria set forth in § 726.302.
(b)(1) A copy of such notice shall be
sent by certified mail to the operator. If
the operator is a corporation, a copy
shall also be sent by certified mail to
each of the persons who served as
president, secretary, or treasurer of the
operator during any period in which the
operator was in violation of section 423
of the Act and § 726.4.
(2) Where service by certified mail is
not accepted by any person, the notice
shall be deemed received by that person
on the date of attempted delivery.
Where service is not accepted, the
Director may exercise discretion to serve
the notice by regular mail.
§ 726.305

Contents of notice.

The notice required by § 726.304
shall:
(a) Identify the operator against whom
the penalty is assessed, as well as the
name of any other person severally
liable for such penalty;
(b) Set forth the determination of the
Director as to the amount of the penalty
and the reason or reasons therefor;
(c) Set forth the right of each person
identified in paragraph (a) of this
section to contest the notice and request
a hearing before the Office of
Administrative Law Judges;
(d) Set forth the method for each
person identified in paragraph (a) to
contest the notice and request a hearing
before the Office of Administrative Law
Judges; and
(e) Inform any affected person that in
the absence of a timely contest and
request for hearing received within 30
days of the date of receipt of the notice,
the Director’s assessment will become
final and unappealable as to that person.
§ 726.306 Finality of administrative
assessment.

Except as provided in § 726.307(c), if
any person identified as potentially
liable for the assessment does not,
within 30 days after receipt of notice,
contest the assessment, the Director’s
assessment shall be deemed final as to
that person, and collection and recovery
of the penalty may be instituted
pursuant to § 726.320.

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80105

§ 726.307 Form of notice of contest and
request for hearing.

(a) Any person desiring to contest the
Director’s notice of initial assessment
shall request an administrative hearing
pursuant to this part. The notice of
contest shall be made in writing to the
Director, Division of Coal Mine
Workers’ Compensation, Office of
Workers’ Compensation Programs,
Employment Standards Administration,
United States Department of Labor. The
notice of contest must be received no
later than 30 days after the date of
receipt of the notice issued under
§ 726.304. No additional time shall be
added where service of the notice is
made by mail.
(b) The notice of contest shall:
(1) Be dated;
(2) Be typewritten or legibly written;
(3) State the specific issues to be
contested. In particular, the person must
indicate his agreement or disagreement
with:
(i) The Director’s determination that
the person against whom the penalty is
assessed is an operator subject to the
requirements of section 423 of the Act
and § 726.4, or is the president,
secretary, or treasurer of an operator, if
the operator is a corporation.
(ii) The Director’s determination that
the operator violated section 423 of the
Act and § 726.4 for the time period in
question; and
(iii) The Director’s determination of
the amount of penalty owed;
(4) Be signed by the person making
the request or an authorized
representative of such person; and
(5) Include the address at which such
person or authorized representative
desires to receive further
communications relating thereto.
(c) A notice of contest filed by the
operator shall be deemed a notice of
contest on behalf of all other persons to
the Director’s determinations that the
operator is subject to section 423 of the
Act and § 726.4 and that the operator
violated those provisions for the time
period in question, and to the Director’s
determination of the amount of penalty
owed. An operator may not contest the
Director’s determination that a person
against whom the penalty is assessed is
the president, secretary, or treasurer of
the operator.
(d) Failure to specifically identify an
issue as contested pursuant to paragraph
(b)(3) of this section shall be deemed a
waiver of the right to contest that issue.
§ 726.308
time.

Service and computation of

(a) Service of documents under this
part shall be made by delivery to the
person, an officer of a corporation, or

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Federal Register / Vol. 65, No. 245 / Wednesday, December 20, 2000 / Rules and Regulations

attorney of record, or by mailing the
document to the last known address of
the person, officer, or attorney. If service
is made by mail, it shall be considered
complete upon mailing. Unless
otherwise provided in this subpart,
service need not be made by certified
mail. If service is made by delivery, it
shall be considered complete upon
actual receipt by the person, officer, or
attorney; upon leaving it at the person’s,
officer’s or attorney’s office with a clerk
or person in charge; upon leaving it at
a conspicuous place in the office if no
one is in charge; or by leaving it at the
person’s or attorney’s residence.
(b) If a complaint has been filed
pursuant to § 726.309, two copies of all
documents filed in any administrative
proceeding under this subpart shall be
served on the attorneys for the
Department of Labor. One copy shall be
served on the Associate Solicitor, Black
Lung Benefits Division, Room N–2117,
Office of the Solicitor, U.S. Department
of Labor, 200 Constitution Ave., NW.,
Washington, DC 20210, and one copy on
the attorney representing the
Department in the proceeding.
(c) The time allowed a party to file
any response under this subpart shall be
computed beginning with the day
following the action requiring a
response, and shall include the last day
of the period, unless it is a Saturday,
Sunday, or federally-observed holiday,
see § 725.311 of Part 725 of this
subchapter, in which case the time
period shall include the next business
day.
§ 726.309 Referral to the Office of
Administrative Law Judges.

(a) Upon receipt of a timely notice of
contest filed in accordance with
§ 726.307, the Director, by the Associate
Solicitor for Black Lung Benefits or the
Regional Solicitor for the Region in
which the violation occurred, may file
a complaint with the Office of
Administrative Law Judges. The
Director may, in the complaint, reduce
the total penalty amount requested. A
copy of the notice of initial assessment
issued by the Director and all notices of
contest filed in accordance with
§ 726.307 shall be attached. A notice of
contest shall be given the effect of an
answer to the complaint for purposes of
the administrative proceeding, subject
to any amendment that may be
permitted under this subpart and 29
CFR part 18.
(b) A copy of the complaint and
attachments thereto shall be served by
counsel for the Director on the person
who filed the notice of contest.
(c) The Director, by counsel, may
withdraw a complaint filed under this

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section at any time prior to the date
upon which the decision of the
Department becomes final by filing a
motion with the Office of
Administrative Law Judges or the
Secretary, as appropriate. If the Director
makes such a motion prior to the date
on which an administrative law judge
renders a decision in accordance
§ 726.313, the dismissal shall be without
prejudice to further assessment against
the operator for the period in question.
§ 726.310 Appointment of Administrative
Law Judge and notification of hearing date.

Upon receipt from the Director of a
complaint filed pursuant to § 726.309,
the Chief Administrative Law Judge
shall appoint an Administrative Law
Judge to hear the case. The
Administrative Law Judge shall notify
all interested parties of the time and
place of the hearing.
§ 726.311

Evidence.

(a) Except as specifically provided in
this subpart, and to the extent they do
not conflict with the provisions of this
subpart, the Rules of Practice and
Procedure for Administrative Hearings
Before the Office of Administrative Law
Judges established by the Secretary at 29
CFR part 18 shall apply to
administrative proceedings under this
subpart.
(b) Notwithstanding 29 CFR
18.1101(b)(2), subpart B of the Rules of
Practice and Procedure for
Administrative Hearings Before the
Office of Administrative Law Judges
shall apply to administrative
proceedings under this part, except that
documents contained in Department of
Labor files and offered on behalf of the
Director shall be admissible in
proceedings under this subpart without
regard to their compliance with the
Rules of Practice and Procedure.
§ 726.312

Burdens of proof.

(a) The Director shall bear the burden
of proving the existence of a violation,
and the time period for which the
violation occurred. To prove a violation,
the Director must establish:
(1) That the person against whom the
penalty is assessed is an operator, or is
the president, secretary, or treasurer of
an operator, if such operator is a
corporation.
(2) That the operator violated section
423 of the Act and § 726.4. The filing of
a complaint shall be considered prima
facie evidence that the Director has
searched the records maintained by
OWCP and has determined that the
operator was not authorized to selfinsure its liability under the Act for the
time period in question, and that no

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insurance carrier reported coverage of
the operator for the time period in
question.
(b) The Director need not produce
further evidence in support of his
burden of proof with respect to the
issues set forth in paragraph (a) if no
party contested them pursuant to
§ 726.307(b)(3).
(c) The Director shall bear the burden
of proving the size of the operator as
required by § 726.302, except that if the
Director has requested the operator to
supply information with respect to its
size under § 726.303 and the operator
has not fully complied with that
request, it shall be presumed that the
operator has more than 100 employees
engaged in coal mine employment. The
person or persons liable for the
assessment shall thereafter bear the
burden of proving the actual number of
employees engaged in coal mine
employment.
(d) The Director shall bear the burden
of proving the operator’s receipt of the
notification required by § 726.303, the
operator’s prior notice of the
applicability of the Black Lung Benefits
Act to its operations, and the existence
of any previous assessment against the
operator, the operator’s principals, or
the operator’s officers.
(e) The person or persons liable for an
assessment shall bear the burden of
proving the applicability of the
mitigating factors listed in § 726.302(d).
§ 726.313 Decision and order of
Administrative Law Judge.

(a) The Administrative Law Judge
shall render a decision on the issues
referred by the Director.
(b) The decision of the Administrative
Law Judge shall be limited to
determining, where such issues are
properly before him or her:
(1) Whether the operator has violated
section 423 of the Act and § 726.4;
(2) Whether other persons identified
by the Director as potentially severally
liable for the penalty were the president,
treasurer, or secretary of the corporation
during the time period in question; and
(3) The appropriateness of the penalty
assessed by the Director in light of the
factors set forth in § 726.302. The
Administrative Law Judge shall not
render determinations on the legality of
a regulatory provision or the
constitutionality of a statutory
provision.
(c) The decision of the Administrative
Law Judge shall include a statement of
findings and conclusions, with reasons
and bases therefor, upon each material
issue presented on the record. The
decision shall also include an
appropriate order which may affirm,

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reverse, or modify, in whole or in part,
the determination of the Director.
(d) The Administrative Law Judge
shall serve copies of the decision on
each of the parties by certified mail.
(e) The decision of the Administrative
Law Judge shall be deemed to have been
issued on the date that it is rendered,
and shall constitute the final order of
the Secretary unless there is a request
for reconsideration by the
Administrative Law Judge pursuant to
paragraph (f) of this section or a petition
for review filed pursuant to § 726.314.
(f) Any party may request that the
Administrative Law Judge reconsider
his or her decision by filing a motion
within 30 days of the date upon which
the decision of the Administrative Law
Judge is issued. A timely motion for
reconsideration shall suspend the
running of the time for any party to file
a petition for review pursuant to
§ 726.314.
(g) Following issuance of the decision
and order, the Chief Administrative Law
Judge shall promptly forward the
complete hearing record to the Director.
§ 726.314

Review by the Secretary.

(a) The Director or any party
aggrieved by a decision of the
Administrative Law Judge may petition
the Secretary for review of the decision
by filing a petition within 30 days of the
date on which the decision was issued.
Any other party may file a cross-petition
for review within 15 days of its receipt
of a petition for review or within 30
days of the date on which the decision
was issued, whichever is later. Copies of
any petition or cross-petition shall be
served on all parties and on the Chief
Administrative Law Judge.
(b) A petition filed by one party shall
not affect the finality of the decision
with respect to other parties.
(c) If any party files a timely motion
for reconsideration, any petition for
review, whether filed prior to or
subsequent to the filing of the timely
motion for reconsideration, shall be
dismissed without prejudice as
premature. The 30-day time limit for
filing a petition for review by any party
shall commence upon issuance of a
decision on reconsideration.
§ 726.315

Contents.

Any petition or cross-petition for
review shall:
(a) Be dated;
(b) Be typewritten or legibly written;
(c) State the specific reason or reasons
why the party petitioning for review

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believes the Administrative Law Judge’s
decision is in error;
(d) Be signed by the party filing the
petition or an authorized representative
of such party; and
(e) Attach copies of the
Administrative Law Judge’s decision
and any other documents admitted into
the record by the Administrative Law
Judge which would assist the Secretary
in determining whether review is
warranted.
§ 726.316

Filing and service.

(a) Filing. All documents submitted to
the Secretary shall be filed with the
Secretary of Labor, U.S. Department of
Labor, 200 Constitution Ave., N.W.,
Washington, DC 20210.
(b) Number of copies. An original and
four copies of all documents shall be
filed.
(c) Computation of time for delivery
by mail. Documents are not deemed
filed with the Secretary until actually
received by the Secretary either on or
before the due date. No additional time
shall be added where service of a
document requiring action within a
prescribed time was made by mail.
(d) Manner and proof of service. A
copy of each document filed with the
Secretary shall be served upon all other
parties involved in the proceeding.
Service under this section shall be by
personal delivery or by mail. Service by
mail is deemed effected at the time of
mailing to the last known address.
§ 726.317

Discretionary review.

(a) Following receipt of a timely
petition for review, the Secretary shall
determine whether the decision
warrants review, and shall send a notice
of such determination to the parties and
the Chief Administrative Law Judge. If
the Secretary declines to review the
decision, the Administrative Law
Judge’s decision shall be considered the
final decision of the agency. The
Secretary’s determination to review a
decision by an Administrative Law
Judge under this subpart is solely within
the discretion of the Secretary.
(b) The Secretary’s notice shall
specify:
(1) The issue or issues to be reviewed;
and
(2) The schedule for submitting
arguments, in the form of briefs or such
other pleadings as the Secretary deems
appropriate.
(c) Upon receipt of the Secretary’s
notice, the Director shall forward the
record to the Secretary.

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§ 726.318

80107

Final decision of the Secretary.

The Secretary’s review shall be based
upon the hearing record. The findings of
fact in the decision under review shall
be conclusive if supported by
substantial evidence in the record as a
whole. The Secretary’s review of
conclusions of law shall be de novo.
Upon review of the decision, the
Secretary may affirm, reverse, modify,
or vacate the decision, and may remand
the case to the Office of Administrative
Law Judges for further proceedings. The
Secretary’s final decision shall be served
upon all parties and the Chief
Administrative Law Judge, in person or
by mail to the last known address.
§ 726.319

Retention of official record.

The official record of every completed
administrative hearing held pursuant to
this part shall be maintained and filed
under the custody and control of the
Director.
§ 726.320
penalty.

Collection and recovery of

(a) When the determination of the
amount of any civil money penalty
provided for in this part becomes final,
in accordance with the administrative
assessment thereof, or pursuant to the
decision and order of an Administrative
Law Judge, or following the decision of
the Secretary, the amount of the penalty
as thus determined is immediately due
and payable to the U.S. Department of
Labor on behalf of the Black Lung
Disability Trust Fund. The person
against whom such penalty has been
assessed or imposed shall promptly
remit the amount thereof, as finally
determined, to the Secretary by certified
check or by money order, made payable
to the order of U.S. Department of
Labor, Black Lung Program. Such
remittance shall be delivered or mailed
to the Director.
(b) If such remittance is not received
within 30 days after it becomes due and
payable, it may be recovered in a civil
action brought by the Secretary in any
court of competent jurisdiction, in
which litigation the Secretary shall be
represented by the Solicitor of Labor.
PART 727—[REMOVED]
6. Under the authority of sections 422
and 426 of the Black Lung Benefits Act,
30 U.S.C. 932, 936, part 727 is removed.
[FR Doc. 00–31166 Filed 12–19–00; 8:45 am]
BILLING CODE 4510–48–P

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