30 U.S.C. § 921 — Regulations and presumptions

Page 181 TITLE 30—MINERAL LANDS AND MINING § 921 Code of 1954’’, which for purposes of codification was translated as ‘‘title 26’’ thus requiring no change in text. 1981—Subsec. (h). Pub. L. 97–119, § 104(b)(1), sub- stituted ‘‘by section 9501 of title 26’’ for ‘‘in section 934a(a)(1) of this title’’. Subsec. (i). Pub. L. 97–119, § 205(b), added subsec. (i). 1978—Subsec. (b). Pub. L. 95–239, § 2(a), substituted ‘‘a chronic dust disease of the lung and its sequelae, in- cluding respiratory and pulmonary impairments, aris- ing out of coal mine employment’’ for ‘‘a chronic dust disease of the lung arising out of employment in a coal mine’’. Subsec. (d). Pub. L. 95–239, § 2(b), substituted ‘‘any in- dividual who works or has worked in or around a coal mine or coal preparation facility in the extraction or preparation of coal’’ for ‘‘any individual who is or was employed in a coal mine’’ and inserted provisions that extended to definition of the term ‘‘miner’’ so as to in- clude also an individual who works or has worked in coal mine construction or transportation in or around a coal mine, to the extent that such individual was ex- posed to coal dust as a result of such employment. Subsec. (f). Pub. L. 95–239, § 2(c), designated existing provisions as pars. (1)(A) and (1)(C), inserted references in the provisions preceding par. (1)(A) to regulations promulgated by the Secretary of Labor for claims under part C of this subchapter and to the relevant pro- visions of subsecs. (b) and (d) of section 923 of this title, and added pars. (1)(B), (1)(D), and (2). Subsec. (h). Pub. L. 95–239, § 2(d), added subsec. (h). 1972—Subsec. (a). Pub. L. 92–303, § 1(c)(2), expanded definition of ‘‘dependent’’ to include children and wife without reference to section 8110 of title 5. Subsecs. (b), (d). Pub. L. 92–303, § 3(b), substituted ‘‘a coal mine’’ for ‘‘an underground coal mine’’. Subsec. (e). Pub. L. 92–303, § 1(c)(3), expanded defini- tion of ‘‘widow’’ by reference to title 42 and provided procedure for the determination of the status. Subsec. (f). Pub. L. 92–303, § 4(a), expanded definition of ‘‘total disability’’ to include a miner prevented from engaging in gainful employment by pneumoconiosis. Subsec. (g). Pub. L. 92–303, § 1(c)(4), added subsec. (g). Statutory Notes and Related Subsidiaries CHANGE OF NAME ‘‘Secretary of Health and Human Services’’ sub- stituted for ‘‘Secretary of Health, Education, and Wel- fare’’ in subsec. (f) pursuant to section 509(b) of Pub. L. 96–88 which is classified to section 3508(b) of Title 20, Education. EFFECTIVE DATE OF 2002 AMENDMENT Pub. L. 107–275, § 4, Nov. 2, 2002, 116 Stat. 1928, pro- vided that: ‘‘This Act [amending this section and sec- tions 921 to 924, 925, 932a, and 936 of this title, repealing sections 904, 924a, and 945 of this title, and enacting provisions set out as notes under sections 801 and 921 of this title], and the amendments made by this Act, shall take effect 90 days after the date of enactment of this Act [Nov. 2, 2002].’’ EFFECTIVE DATE OF 1994 AMENDMENT Amendment by Pub. L. 103–296 effective Mar. 31, 1995, see section 110(a) of Pub. L. 103–296, set out as a note under section 401 of Title 42, The Public Health and Welfare. EFFECTIVE DATE OF 1981 AMENDMENT Amendment by section 205(b) of Pub. L. 97–119 effec- tive Jan. 1, 1982, except as otherwise provided, see sec- tion 206(a) of Pub. L. 97–119, set out as a note under sec- tion 901 of this title. EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95–239 effective Mar. 1, 1978, see section 20(a) of Pub. L. 95–239, set out as a note under section 901 of this title. EFFECTIVE DATE OF 1972 AMENDMENT Amendment by section 3(b) of Pub. L. 92–303 effective Dec. 30, 1969, see section 3(c) of Pub. L. 92–303, set out as a note under section 901 of this title. Amendment by section 4(a) of Pub. L. 92–303 effective Dec. 30, 1969, see section 4(g) of Pub. L. 92–303, set out as a note under section 921 of this title. § 903. Field offices (a) The Secretary of Labor shall establish and operate such field offices as may be necessary to assist miners and survivors of miners in the fil- ing and processing of claims under this sub- chapter. Such field offices shall, to the extent feasible, be reasonably accessible to such miners and survivors. The Secretary, in connection with the establishment and operation of field of- fices, may enter into arrangements with other Federal departments and agencies, and with State agencies, for the use of existing facilities operated by such departments and agencies. Where the establishment of separate facilities is not feasible the Secretary may enter into such arrangements as he deems necessary with the heads of Federal departments, agencies, and in- strumentalities and with State agencies for the use of existing facilities and personnel under their control. (b) There are authorized to be appropriated for the purposes of subsection (a) such sums as may be necessary. (Pub. L. 95–239, § 18, Mar. 1, 1978, 92 Stat. 105.) Editorial Notes CODIFICATION Section was enacted as part of the Black Lung Bene- fits Reform Act of 1977, and not as part of the Federal Mine Safety and Health Act of 1977 which comprises this chapter or the Black Lung Benefits Act which comprises this subchapter. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective Mar. 1, 1978, see section 20(a) of Pub. L. 95–239, set out as an Effective Date of 1978 Amend- ment note under section 901 of this title. § 904. Repealed. Pub. L. 107–275, § 2(c)(2), Nov. 2, 2002, 116 Stat. 1926 Section, Pub. L. 95–239, § 19, Mar. 1, 1978, 92 Stat. 106, related to providing information to potential bene- ficiaries of changes made by Black Lung Benefits Re- form Act of 1977. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF REPEAL Repeal effective 90 days after Nov. 2, 2002, see section 4 of Pub. L. 107–275, set out as an Effective Date of 2002 Amendment note under section 902 of this title. PART B—CLAIMS FOR BENEFITS FILED ON OR BEFORE DECEMBER 31, 1973 § 921. Regulations and presumptions (a) Promulgation; payment of benefits The Secretary shall, in accordance with the provisions of this part, and the regulations pro- mulgated by him under this part, make pay- Page 182 TITLE 30—MINERAL LANDS AND MINING § 921 1 So in original. The period probably should be a comma. 2 So in original. Probably should be capitalized. ments of benefits in respect of total disability of any miner due to pneumoconiosis, and in respect of the death of any miner whose death was due to pneumoconiosis or, except with respect to a claim filed under part C of this subchapter on or after the effective date of the Black Lung Bene- fits Amendments of 1981, who at the time of his death was totally disabled by pneumoconiosis. (b) Promulgation of standards determining total disability The Secretary shall by regulation prescribe standards for determining for purposes of sub- section (a) whether a miner is totally disabled due to pneumoconiosis and for determining whether the death of a miner was due to pneu- moconiosis. Regulations required by this sub- section shall be promulgated and published in the Federal Register at the earliest practicable date after December 30, 1969, and in no event later than the end of the third month following December 1969. Final regulations required for implementation of any amendments to this sub- chapter shall be promulgated and published in the Federal Register at the earliest practicable date after the date of enactment of such amend- ments, and in no event later than the end of the fourth month following the month in which such amendments are enacted. Such regulations may be modified or additional regulations promul- gated from time to time thereafter. (c) Presumptions For purposes of this section— (1) If a miner who is suffering or suffered from pneumoconiosis was employed for ten years or more in one or more coal mines there shall be a rebuttable presumption that his pneumoconiosis arose out of such employ- ment. (2) If a deceased miner was employed for ten years or more in one or more coal mines and died from a respirable disease there shall be a rebuttable presumption that his death was due to pneumoconiosis. The provisions of this paragraph shall not apply with respect to claims filed on or after the effective date of the Black Lung Benefits Amendments of 1981. (3) If a miner is suffering or suffered from a chronic dust disease of the lung which (A) when diagnosed by chest roentgenogram, yields one or more large opacities (greater than one centimeter in diameter) and would be classified in category A, B, or C in the Inter- national Classification of Radiographs of the Pneumoconioses by the International Labor Organization, (B) when diagnosed by biopsy or autopsy, yields massive lesions in the lung, or (C) when diagnosis is made by other means, would be a condition which could reasonably be expected to yield results described in clause (A) or (B) if diagnosis had been made in the manner prescribed in clause (A) or (B), then there shall be an irrebuttable presumption that he is totally disabled due to pneumo- coniosis or that his death was due to pneumo- coniosis, or that at the time of his death he was totally disabled by pneumoconiosis.1 as the case may be. (4) if 2 a miner was employed for fifteen years or more in one or more underground coal mines, and if there is a chest roentgenogram submitted in connection with such miner’s, his widow’s, his child’s, his parent’s, his brother’s, his sister’s, or his dependent’s claim under this subchapter and it is interpreted as nega- tive with respect to the requirements of para- graph (3) of this subsection, and if other evi- dence demonstrates the existence of a totally disabling respiratory or pulmonary impair- ment, then there shall be a rebuttable pre- sumption that such miner is totally disabled due to pneumoconiosis, that his death was due to pneumoconiosis, or that at the time of his death he was totally disabled by pneumo- coniosis. In the case of a living miner, a wife’s affidavit may not be used by itself to establish the presumption. The Secretary shall not apply all or a portion of the requirement of this paragraph that the miner work in an un- derground mine where he determines that con- ditions of a miner’s employment in a coal mine other than an underground mine were substantially similar to conditions in an un- derground mine. The Secretary may rebut such presumption only by establishing that (A) such miner does not, or did not, have pneu- moconiosis, or that (B) his respiratory or pul- monary impairment did not arise out of, or in connection with, employment in a coal mine. (5) In the case of a miner who dies on or be- fore March 1, 1978, who was employed for 25 years or more in one or more coal mines be- fore June 30, 1971, the eligible survivors of such miner shall be entitled to the payment of benefits, at the rate applicable under section 922(a)(2) of this title, unless it is established that at the time of his or her death such miner was not partially or totally disabled due to pneumoconiosis. Eligible survivors shall, upon request by the Secretary, furnish such evi- dence as is available with respect to the health of the miner at the time of his or her death. The provisions of this paragraph shall not apply with respect to claims filed on or after the day that is 180 days after the effec- tive date of the Black Lung Benefits Amend- ments of 1981. (d) Applicability of presumptions Nothing in subsection (c) shall be deemed to affect the applicability of subsection (a) in the case of a claim where the presumptions provided for therein are inapplicable. (Pub. L. 91–173, title IV, § 411, Dec. 30, 1969, 83 Stat. 793; Pub. L. 92–303, §§ 3(a), 4(b)(1), (3), (c), (d), May 19, 1972, 86 Stat. 153, 154; Pub. L. 95–239, § 3(a), Mar. 1, 1978, 92 Stat. 96; Pub. L. 97–119, title II, §§ 202(b), 203(a)(5), Dec. 29, 1981, 95 Stat. 1643, 1644; Pub. L. 103–296, title I, § 108(i)(2), Aug. 15, 1994, 108 Stat. 1488; Pub. L. 107–275, § 2(a), Nov. 2, 2002, 116 Stat. 1925; Pub. L. 111–148, title I, § 1556(a), Mar. 23, 2010, 124 Stat. 260.) Editorial Notes REFERENCES IN TEXT The effective date of the Black Lung Benefits Amend- ments of 1981, referred to in subsecs. (a) and (c)(2), (5), Page 183 TITLE 30—MINERAL LANDS AND MINING § 921 is Jan. 1, 1982, except as otherwise provided. See section 206(a) of Pub. L. 97–119, set out as an Effective Date of 1981 Amendment note under section 901 of this title. AMENDMENTS 2010—Subsec. (c)(4). Pub. L. 111–148 struck out at end ‘‘The provisions of this paragraph shall not apply with respect to claims filed on or after the effective date of the Black Lung Benefits Amendments of 1981.’’ 2002—Subsecs. (a), (b), (c)(4), (5). Pub. L. 107–275 sub- stituted ‘‘Secretary’’ for ‘‘Commissioner of Social Se- curity’’ wherever appearing. 1994—Subsecs. (a), (b), (c)(4), (5). Pub. L. 103–296 sub- stituted ‘‘Commissioner of Social Security’’ for ‘‘Sec- retary’’ wherever appearing. 1981—Subsec. (a). Pub. L. 97–119, § 203(a)(5), inserted ‘‘, except with respect to a claim filed under part C of this subchapter on or after the effective date of the Black Lung Benefits Amendments of 1981,’’ after ‘‘pneu- moconiosis or’’. Subsec. (c)(2), (4). Pub. L. 97–119, § 202(b)(1), inserted provision that this paragraph not apply with respect to claims filed on or after the effective date of the Black Lung Benefits Amendments of 1981. Subsec. (c)(5). Pub. L. 97–119, § 202(b)(2), inserted pro- vision that this paragraph not apply with respect to claims filed on or after the day that is 180 days after the effective date of the Black Lung Benefits Amend- ments of 1981. 1978—Subsec. (c). Pub. L. 95–239 capitalized and re- punctuated the existing paragraphs to change their construction from that of uncapitalized clauses to com- plete sentences, and added par. (5). 1972—Subsec. (a). Pub. L. 92–303, § 4(b)(1), substituted ‘‘pneumoconiosis or who at the time of his death was totally disabled by pneumoconiosis’’ for ‘‘pneumo- coniosis’’. Subsec. (b). Pub. L. 92–303, § 4(d), inserted provision for the promulgation and publication in the Federal Register of final regulations and their amendments and for time limits for publication. Subsec. (c)(1), (2). Pub. L. 92–303, § 3(a), substituted ‘‘coal mines’’ for ‘‘underground coal mines’’. Subsec. (c)(3). Pub. L. 92–303, § 4(b)(3), inserted pre- sumption that at the time of death the miner was to- tally disabled by pneumoconiosis. Subsec. (c)(4). Pub. L. 92–303, § 4(c), added par. (4). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2010 AMENDMENT Pub. L. 111–148, title I, § 1556(c), Mar. 23, 2010, 124 Stat. 260, provided that: ‘‘The amendments made by this sec- tion [amending this section and section 932 of this title] shall apply with respect to claims filed under part B or part C of the Black Lung Benefits Act (30 U.S.C. 921 et seq., 931 et seq.) after January 1, 2005, that are pending on or after the date of enactment of this Act [Mar. 23, 2010].’’ EFFECTIVE DATE OF 2002 AMENDMENT Amendment by Pub. L. 107–275 effective 90 days after Nov. 2, 2002, see section 4 of Pub. L. 107–275, set out as a note under section 902 of this title. EFFECTIVE DATE OF 1994 AMENDMENT Amendment by Pub. L. 103–296 effective Mar. 31, 1995, see section 110(a) of Pub. L. 103–296, set out as a note under section 401 of Title 42, The Public Health and Welfare. EFFECTIVE DATE OF 1981 AMENDMENT Amendment by Pub. L. 97–119 effective Jan. 1, 1982, except as otherwise provided, see section 206(a) of Pub. L. 97–119, set out as a note under section 901 of this title. EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95–239 effective Mar. 1, 1978, see section 20(a) of Pub. L. 95–239, set out as a note under section 901 of this title. EFFECTIVE DATE OF 1972 AMENDMENT Amendment by section 3(a) of Pub. L. 92–303 effective Dec. 30, 1969, see section 3(c) of Pub. L. 92–303, set out as a note under section 901 of this title. Pub. L. 92–303, § 4(g), May 19, 1972, 86 Stat. 154, pro- vided that: ‘‘The amendments made by this section [amending this section and sections 901, 902, 923, and 931 of this title] shall be effective as of December 30, 1969.’’ TRANSITIONAL PROVISIONS Pub. L. 107–275, § 3, Nov. 2, 2002, 116 Stat. 1926, pro- vided that: ‘‘(a) APPLICABILITY.—This section shall apply to the transfer of all functions relating to the administration of part B of subchapter IV (30 U.S.C. 901 et seq.) [prob- ably means 30 U.S.C. 921 et seq.] from the Commis- sioner of Social Security (hereinafter in this section re- ferred to as the ‘Commissioner’) to the Secretary of Labor, as provided by this Act [see Short Title of 2002 Amendment note set out under section 801 of this title]. ‘‘(b) TRANSFER OF ASSETS, LIABILITIES, ETC.— ‘‘(1) The Commissioner shall transfer to the Sec- retary of Labor all property and records that the Di- rector of the Office of Management and Budget deter- mines relate to the functions transferred to the Sec- retary of Labor by this Act or amendments made by this Act. ‘‘(2) Section 1531 of title 31, United States Code, shall apply in carrying out this Act and amendments made by this Act, except that, for purposes of car- rying out this Act and amendments made by this Act, the functions of the President under section 1531(b) shall be performed by the Director of the Office of Management and Budget unless otherwise directed by the President. ‘‘(c) CONTINUATION OF ORDERS, DETERMINATIONS, ETC.— ‘‘(1) This Act shall not affect the validity of any order, determination, rule, regulation, operating pro- cedure (to the extent applicable to the Secretary of Labor), or contract that— ‘‘(A) relates to a function transferred by this Act; and ‘‘(B) is in effect on the date this Act takes effect [see Effective Date of 2002 Amendment note set out under section 902 of this title]. ‘‘(2) Any order, determination, rule, regulation, op- erating procedure, or contract described in paragraph (1) shall— ‘‘(A) apply on and after the effective date of this Act to the Secretary of Labor; and ‘‘(B) continue in effect, according to its terms, until it is modified, superseded, terminated, or oth- erwise deprived of legal effect by the Secretary of Labor, a court of competent jurisdiction, or oper- ation of law. ‘‘(d) CONTINUATION OF ADMINISTRATIVE PRO- CEEDINGS.— ‘‘(1) Any proceeding before the Commissioner in- volving the functions transferred by this Act that is pending on the date this Act takes effect shall con- tinue before the Secretary of Labor, except as pro- vided in paragraph (2). ‘‘(2) Any proceeding pending before an Administra- tive Law Judge or the Appeals Council pursuant to part B and the applicable regulations of the Sec- retary of Health and Human Services shall continue before the Commissioner consistent with the fol- lowing provisions: ‘‘(A) Any proceeding described in this paragraph shall continue as if this Act had not been enacted, and shall include all rights to hearing, administra- tive review, and judicial review available under part B and the applicable regulations of the Sec- retary of Health and Human Services. ‘‘(B) Any decision, order, or other determination issued in any proceeding described in this sub- section shall apply to the Secretary of Labor and continue in effect, according to its terms, until it is Page 184 TITLE 30—MINERAL LANDS AND MINING § 922 modified, superseded, terminated, or otherwise de- prived of legal effect by the Secretary of Labor, a court of competent jurisdiction, or operation of law. ‘‘(C) Nothing in this paragraph shall be deemed to prohibit the discontinuance or modification of any such proceeding under the same terms and condi- tions and to the same extent that such proceeding could have been discontinued or modified if this Act had not been enacted. ‘‘(3) Any proceeding before the Secretary of Labor involving the functions transferred by this Act shall be subject to the statutory requirements for notice, hearing, action upon the record, administrative re- view, and judicial review that apply to similar pro- ceedings before the Commissioner conducted prior to the enactment of this Act. ‘‘(e) CONTINUATION OF ACTIONS AND CAUSES OF AC- TION.— ‘‘(1) Except as provided in paragraphs (2) and (3), this Act shall not abrogate, terminate, or otherwise affect any action or cause of action, that— ‘‘(A) relates to a function transferred by this Act; and ‘‘(B) is pending or otherwise in existence on the date this Act takes effect [see Effective Date of 2002 Amendment note set out under section 902 of this title]. ‘‘(2) Any action pending before the Commissioner or any court on the date this Act takes effect that in- volves a function transferred by this Act shall con- tinue before the Commissioner or court consistent with the following provisions: ‘‘(A) Any proceeding described in this paragraph shall continue as if this Act had not been enacted. ‘‘(B) Any decision, order, or other determination issued in any proceeding subject to this paragraph shall apply to the Secretary of Labor and continue in effect, according to its terms, until it is modi- fied, superseded, terminated, or otherwise deprived of legal effect by the Secretary of Labor, a court of competent jurisdiction, or operation of law. ‘‘(3) Any cause of action by or against the Commis- sioner that exists on the date this Act takes effect and involves any function transferred by this Act may be asserted by or against the Secretary of Labor or the United States. ‘‘(f) CONTINUATION OF ACTIONS AGAINST OFFICERS.—No suit, action, or other proceeding commenced by or against any officer in his official capacity as an officer of the Social Security Administration, and relating to a function transferred by this Act, shall abate by rea- son of the enactment of this Act. No cause of action by or against the Social Security Administration, or by or against any officer thereof in his official capacity, re- lating to a function transferred by this Act, shall abate by reason of enactment of this Act. ‘‘(g) PRESERVATION OF PENALTIES, ETC.—The transfer of functions under this Act shall not release or extin- guish any penalty, forfeiture, liability, prosecution, in- vestigation, or right to initiate a future investigation or prosecution involving any function transferred by this Act.’’ § 922. Payment of benefits (a) Schedules Subject to the provisions of subsection (b) of this section, benefit payments shall be made by the Secretary under this part as follows: (1) In the case of total disability of a miner due to pneumoconiosis, the disabled miner shall be paid benefits during the disability at a rate equal to 371⁄2 per centum of the monthly pay rate for Federal employees in grade GS–2, step 1. (2) In the case of death of a miner due to pneu- moconiosis or, except with respect to a claim filed under part C of this subchapter on or after the effective date of the Black Lung Benefits Amendments of 1981, of a miner receiving bene- fits under this part, benefits shall be paid to his widow (if any) at the rate the deceased miner would receive such benefits if he were totally disabled. (3) In the case of the child or children of a miner whose death is due to pneumoconiosis or, except with respect to a claim filed under part C of this subchapter on or after the effective date of the Black Lung Benefits Amendments of 1981, of a miner who is receiving benefits under this part at the time of his death or who was to- tally disabled by pneumoconiosis at the time of his death, in the case of the child or children of a widow who is receiving benefits under this part at the time of her death, and in the case of any child or children entitled to the payment of benefits under paragraph (5) of section 921(c) of this title, benefits shall be paid to such child or children as follows: If there is one such child, he shall be paid benefits at the rate specified in paragraph (1). If there is more than one such child, the benefits paid shall be divided equally among them and shall be paid at a rate equal to the rate specified in paragraph (1), increased by 50 per centum of such rate if there are two such children, by 75 per centum of such rate if there are three such children, and by 100 per centum of such rate if there are more than three such chil- dren: Provided, That benefits shall only be paid to a child for so long as he meets the criteria for the term ‘‘child’’ contained in section 902(g) of this title: And provided further, That no entitle- ment to benefits as a child shall be established under this paragraph (3) for any month for which entitlement to benefits as a widow is es- tablished under paragraph (2). (4) In the case of an individual entitled to ben- efit payments under clause (1) or (2) of this sub- section who has one or more dependents, the benefit payments shall be increased at the rate of 50 per centum of such benefit payments, if such individual has one dependent, 75 per cen- tum if such individual has two dependents, and 100 per centum if such individual has three or more dependents. (5) In the case of the dependent parent or par- ents of a miner whose death is due to pneumo- coniosis, or, except with respect to a claim filed under part C of this subchapter on or after the effective date of the Black Lung Benefits Amendments of 1981, of a miner who is receiving benefits under this part at the time of his death or who was totally disabled by pneumoconiosis at the time of death, and who is not survived at the time of his death by a widow or a child, in the case of the dependent surviving brother(s) or sister(s) of such a miner who is not survived at the time of his death by a widow, child, or par- ent, in the case of the dependent parent or par- ents of a miner (who is not survived at the time of his or her death by a widow or a child) who are entitled to the payment of benefits under paragraph (5) of section 921(c) of this title, or in the case of the dependent surviving brother(s) or sister(s) of a miner (who is not survived at the time of his or her death by a widow, child, or parent) who are entitled to the payment of bene- fits under paragraph (5) of section 921(c) of this title, benefits shall be paid under this part to