§§ 725.450-725.480).

                                          4
Board (“the Board”), and then to the Court of Appeals for the

circuit in which the miner’s “injury” occurred.8

     In 2000, the DOL revamped its rules to streamline the handling

of black lung cases.            One thrust of the new rules is to make

conclusive a district director’s determination of the “responsible

operator”       liable   for    payments.             If   the       district    director’s

determination is overturned on appeal, the case is not remanded to

correct the error.          Instead, benefits are paid by the Black Lung

Disability Trust Fund (“the Fund”).                   This is the case even if the

actual responsible operator can be identified.9
     To protect the Fund from unwarranted liability, the rules

require     the   parties      to   present      to    the   district       director    all

documentary evidence concerning which operator is liable.10                          Absent

exceptional circumstances, new documentary evidence pertaining to

liability may not be thereafter introduced into the record.11                          With

this background in mind, we turn to the facts.

                                         B.

     Roger L. Weis worked in the coal mines of West Virginia for

approximately thirty-six years.                  Most recently, Weis worked for



     8
      

  §       725.481;        §    725.482)   (citation
omitted).
     9
      20 C.F.R. §§ 725.407(d); 725.418(d); 65 Fed. Reg. 79990;
79999-80000 (Dec. 20, 2000) (all citations will be to the Dec. 20,
2000 Federal Register).
     10
          
Id.
     11
          20 C.F.R. 
§ 725.456(b)(1).

                                             5
Marfork Coal Co. (“Marfork”), which employed him from November 1,

1994 to August 1, 2006.12

     On July 9, 2002, Weis filed a claim for black lung benefits

with a DOL district director located in Charleston, West Virginia.

On August 23, 2002, the district director notified Marfork of

Weis’s claim and identified Marfork as a potentially liable coal

operator.13    20 C.F.R. § 725.407.       The regulations required Marfork

to file a response in which it either accepted or contested that

identification.       
Id. § 725.408(a)(1).         On 
September 4, 2002,

Marfork contested liability.14

     The district director ordered a complete pulmonary evaluation

of Weis.     
Id. §§   725.405(b); 725.406(b). 
     On September 24, 2002,

Dr. Manu Patel diagnosed Weis with complicated pneumoconiosis, a

rare and serious form of black lung disease.15


     12
          Weis retired on August 1, 2006.
     13
          See 20 C.F.R. §§ 725.408; 725.494.
     14
      In support of its position, Marfork had ninety days in which
to submit evidence concerning its employment of Weis and its status
as a potentially liable operator. 
Id. § 725.408(a)(2). Marfork
did not submit any evidence.
     15
      Coal worker’s pneumoconiosis is customarily classified as
either “simple” or “complicated.”    Simple pneumoconiosis seldom
results in significant respiratory impairment.         Complicated
pneumoconiosis, which is far more serious, involves progressive
massive fibrosis as a reaction to inhaled coal dust. Complicated
pneumoconiosis usually causes significant lung impairment and
breathing difficulties. It may induce death or contribute to death
by other causes. See Usery v. Turner Elkhorn Mining Co., 
428 U.S.
1
, 7 (1976) (footnotes omitted); N. Leroy Lapp, A Lawyer’s Medical
Guide to Black Lung Litigation, 
83 W. Va. L
. Rev. 721, 729-781

                                      6
      On January 28, 2003, the district director issued a “Schedule

for the Submission of Additional Evidence” (“the Schedule”).                
Id.

§ 725.410(a).        The 
Schedule laid out the district director’s

preliminary conclusion that Weis was entitled to benefits because

of his disease.16      It gave Marfork thirty days to accept or contest

that finding.       J.A. 51.    It also gave the parties sixty days to

submit additional medical evidence concerning Weis’s entitlement.

Under      the   regulations,   the    parties    could    submit   entitlement

evidence either to the district director or thereafter to an ALJ if

a formal hearing was requested.           J.A. 52.

      In the Schedule, the district director also preliminarily

designated Marfork as the responsible operator.              J.A. 51.    It gave

Marfork thirty days to accept or contest this finding.17                J.A. 52.

It also gave Marfork sixty days in which to submit any “documentary

evidence relevant to liability.” 
Id. Such evidence was 
to include

any   evidence     “relevant    to    whether    another   potentially   liable

operator should have been designated the responsible operator.”

J.A. 53.         The Schedule cautioned that “[a]bsent a showing of

extraordinary circumstances, no documentary evidence relevant to



(1981).
      16
      A miner with complicated pneumoconiosis is conclusively
presumed to be totally disabled. 20 C.F.R. §§ 718.203(b); 718.304.
      17
      An operator that fails to respond to the Schedule is deemed
to have accepted its designation and to have waived its right to
contest liability in any future proceedings. J.A. 52.

                                         7
liability, or testimony of a witness not identified at this stage

of the proceedings, may be admitted into the record once a case is

referred to the [OALJ].”      
Id.

     On   February   11, 
  2003,    Marfork    submitted      a     DOL   Operator

Response form to the district director in which it accepted its

designation as the responsible operator.             J.A. 65.     It contested,

however, that Weis was entitled to benefits.            
Id.     Marfork did not
submit evidence of any kind to the district director.

     Weis, however, did submit additional entitlement evidence to

the district director.      He proffered two x-ray interpretations by

Dr. John Parker, who compared x-rays of Weis’s lungs from 1971,

1974, 1980, 1996, 1999, 2000, and 2003. Parker diagnosed Weis with

“progressive   massive     fibrosis,”      another    name    for    complicated

pneumoconiosis.18    Parker noted that the disease had “progressed”

between 1996 and 2003.      J.A. 14.

     On July 7, 2003, the district director issued a proposed order

awarding Weis benefits and holding Marfork liable.                Marfork timely

requested a formal hearing before an ALJ.             On September 18, 2003

the case was referred to the OALJ.19




     18
      See Lisa Lee Mines v. Director, OWCP, 
86 F.3d 1358
, 1359-60
(4th Cir. 1996) (en banc).
     19
      The district director prepared a list of contested issues for
the hearing. J.A. 111-113. The issues focused on entitlement.
“Responsible operator” is not marked as a contested issue.

                                       8
       In preparation for a hearing before the ALJ, Marfork had Weis

examined by Dr. Robert Crisalli.            The examination suggested that

Weis was indeed suffering from complicated pneumoconiosis.                J.A.

J.A. 354; 364. This revelation prompted Marfork to start “scouring

hospital admissions, [as well as] State claims, to find out if

there were any earlier x-rays, which is standard procedure in our

[Marfork’s attorneys’] office.”             
Id.    As part of 
this search,

Marfork, in August 2004, discovered a 1992 x-ray of Weis’s lungs

indicating that Weis was then suffering from the disease, a full

two years before Marfork hired him.               This medical evidence was

significant.        If Weis had developed complicated pneumoconiosis

before Marfork hired him, another operator would be solely liable

for Weis’s benefits.20

       On October 19, 2004, the ALJ held a hearing.           In addition to

Weis    and     Marfork,   the   Director    of   the   Office   of   Workers’

Compensation Programs (the “OWCP Director”) was a party.21 The OWCP

Director, who acts as trustee for the Black Lung Benefits Fund, is

responsible for conserving its assets.22                Marfork offered into



       20
      See, e.g., Truitt v. North American Coal Co., 2 BLR 1-199
(1979), aff’d sub. nom. Director, OWCP v. North American Coal Co.,
626 F.2d 1137 
(3d Cir. 1980).
       21
      Weis and the OWCP Director are the two respondents in              this
proceeding.   The OWCP Director, who administers the Black               Lung
Benefits Program, 20 C.F.R. § 701.202(f) (2007), entered the             case
when Marfork notified him that it contested liability. J.A.              159.
       22
            See, e.g., Truitt, 2 BLR 1-202.

                                       9
evidence reports from three doctors who opined, based on the x-ray,

that Weis was disabled before he came to work for Marfork.23       The

reports were admitted without objection.

     In light of the new evidence, the ALJ called for post-hearing

briefs. In his brief, the OWCP Director contended that the medical

reports should be excluded.    Under 20 C.F.R. § 725.456(b)(1), he

argued, Marfork was required to have presented all evidence bearing

on liability to the district director.    Accordingly, Marfork could

introduce   the   evidence   now   only   by   showing   extraordinary

circumstances.    Because the x-ray was waiting to be found, no such

circumstances existed.

     The ALJ agreed.   In a written opinion dated June 27, 2005, he

excluded Marfork’s evidence, awarded benefits to Weis,24 and held

Marfork liable.    He further concluded that Marfork had failed to

develop its exculpatory evidence in a timely fashion.25


     23
      Drs. Wiot, Meyer, and Hippensteel all read the x-ray for the
company.   All three concluded that the x-ray was positive for
complicated pneumoconiosis.
     24
      The ALJ determined that Weis’s benefits are payable as of
April 1996, the date that admissible x-ray evidence showed that
Weis first suffered from complicated pneumoconiosis.      
Id. §
725.503(b).
     25
      The ALJ made two additional findings that we must briefly
address. The ALJ found that Marfork could not contest its status
as a potentially liable operator because it had failed to submit
evidence within ninety days of receiving notice of Weis’s claim.
J.A. 230; see 20 C.F.R. § 725.408(b)(1). The ALJ also found that
Marfork had waived its right to contest its liability under 20
C.F.R. § 725.412(a)(2) because it had accepted its designation as
responsible operator before the district director. J.A. 230. The

                                   10
     On August 19, 2005, Marfork appealed to the Board.               On June

30, 2006, the Board affirmed in a split decision.               The majority

held that medical records are included in the term “documentary

evidence” referenced in § 725.456(b)(1). J.A. 395. The Board also

affirmed   the   ALJ’s   finding   that    Marfork    had   failed   to   prove

“extraordinary circumstances.”       J.A. 397.

     Marfork timely filed the instant petition for review. We have

jurisdiction under 33 U.S.C. § 921(c). For the reasons stated

below, we deny Marfork’s petition and affirm the decision of the

Board.



                                    II.

     On a petition for review of an order of the Board, we

independently review the record.          Daniels Co., Inc., v. Mitchell,

479 F.3d 321
, 329 (4th Cir. 2007) (citations omitted).               We review

the Board’s conclusions of law de novo.         
Id.    We determine whether
substantial evidence exists to support the ALJ’s findings of fact.

Consolidation Coal Co. v. Williams, 
453 F.3d 609
, 614 (4th Cir.

2006).26


Board did not rely on either ground as support for its decision,
however. Accordingly, neither finding is presently before us. See
Grigg v. Director, OWCP, 
28 F.3d 416
, 418 (4th Cir. 1994) (“We
confine our review to the grounds upon which the Board based its
decision.”).
     26
      Substantial evidence is “‘more than a mere scintilla.’”
Consolidation Coal Co. v. Williams, 
453 F.3d 609
, 614 (4th Cir.
2006) (citations omitted).   Specifically, it is “such relevant

                                    11
                                   III.

        This case involves the interpretation of § 725.456(b)(1),

which governs the admissibility of “documentary evidence pertaining

to the liability of a potentially liable operator and/or the

identification of a responsible operator.” Unless submitted to the

district     director,   such   documentary   evidence   “shall   not    be

admitted...in the absence of extraordinary circumstances.”              
Id.

The full text 
of the section is as follows:

        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.

Id.27

        Medical evidence concerning entitlement to benefits is treated

differently.     
Id. § 725.456(b)(2).     Entitlement 
evidence may be

offered at either the district director or the ALJ stage.         
Id.   The

controversy in 
the instant case arose because the medical opinions

concerning the 1992 x-ray are pertinent both to Weis’s entitlement

to benefits and to Marfork’s liability.

        Marfork would read into § 725.456(b)(1) an implied exception

for medical evidence that pertains to liability.           According to



evidence as a reasonable mind might accept as adequate to support
a conclusion.” 
Id. at 615 (internal 
quotation marks and citations
omitted).
        27
      Neither the regulations nor the regulatory history found in
the Federal Register define the term “documentary evidence.”

                                    12
Marfork, the regulation would now read, “documentary evidence

pertaining to...liability, except for medical evidence.”        The OWCP

Director disagrees, maintaining that the regulation is not only

clear, but that the DOL intended it to apply to all evidence,

medical or otherwise, that bears upon liability.

     We agree with the Director.        His interpretation conforms to

the plain meaning of the regulation, which is unqualified.28          His

interpretation is also supported by the regulatory history.

     The DOL revised the Act’s regulations in 2000.          One of the

Department’s   objectives   was   to    simplify   and   streamline   the

processing of claims at the district director level.        65 Fed. Reg.

79990.

     An initial draft of the regulations would have required both

liability and entitlement evidence to be presented to the district

director.29    
Id. at 79989.      The 
Department observed that this



     28
      Because the black lung regulations are administered by the
OWCP Director, his interpretation is entitled to “substantial
deference ‘unless it is plainly erroneous or inconsistent with the
regulation.’” Mullins Coal Co. v. Director, OWCP, 
484 U.S. 135
,
159 (1987) (citing Bowles v. Seminole Rock & Sand Co., 
325 U.S.
410
, 414 (1945)); see Doss v. Director, OWCP, 
53 F.3d 654
, 658 (4th
Cir. 1995) (citing and applying Mullins). This rule of deference
applies to an interpretation contained in a brief, including the
brief that the OWCP Director filed in the instant case. See, e.g.,
Auer v. Robbins, 
519 U.S. 452
, 461-62 (1997). As our discussion
above makes clear, we find the OWCP Director’s interpretation to be
neither plainly erroneous nor inconsistent with the regulation.
     29
      The draft regulation would have defined documentary evidence
as “evidence relevant to operator liability as well as all medical
evidence relevant to a claimant’s eligibility[.]”

                                   13
proposal would end the then-current practice of delaying the

development of evidence on both issues until the OALJ stage.                      
Id.

       Eventually,     the    DOL 
   decided    not    to   require      all   medical

eligibility evidence to be submitted to the district director. 
Id.

at 79990.        The 
DOL did, however, implement its proposal with

respect to liability evidence.           This decision is clearly stated in

the Federal Register: “Any such evidence that was not submitted to

the district director could be submitted to the ALJ only upon a

showing of extraordinary circumstances.”                
Id.

       As the Federal 
Register explains, serious disputes about the

identity of the responsible operator arise in fewer than ten

percent of all claims.             
Id. at 79989; 79991; 
79999-80000.              When

such disputes do arise, however, the DOL expressly intended to

resolve them at the district director stage.                   
Id.       The district

director 
   is   required      to   select     one    and   only   one    responsible

operator, and he is “permitted to refer a case to the [OALJ] with

only one designated responsible operator as a party to the claim.”

Id. at 79990.

       It 
is important that the district director make the right

decision.      In the event that the operator he              designates is later

adjudicated not liable, the Fund will pay any benefit award.                      
Id.

There is no 
remand.          
Id.

       The Federal Register 
devotes considerable space to explaining

that   under     the   2000    changes   the     district     director’s       initial


                                         14
determination is unassailable even if wrong.                
Id.    “The Department

intends 
that once a claim is referred to the [OALJ], the Department

shall not be able to impose liability for that claim on any

operator other than the one formally designated by the district

director,     whether   through     remand    by    the    [ALJ]    or   through    a

modification of a finally awarded claim.”                 
Id.

       For these reasons, 
the DOL obliged operators to develop

liability evidence at the district director stage, the earliest

stage of claims processing.             
Id. at 79999-80000.        Operators 
must

“submit evidence regarding their [own] potential liability for the

claim.”    
Id. at 79999.     Moreover, 
they must develop and submit “any

evidence     relevant   to   the    liability      of   another     party.”       
Id.

(emphasis added).       This 
arms the district director with sufficient

information to determine accurately which operator is liable,

before the case is referred to the OALJ and before all other

operators are dismissed from the case.              
Id. at 80000.

       Given 
this regulatory history, it is implausible to suppose

that the DOL crafted a system that deprives district directors of

critical documentary evidence on the issue of liability.                   Disputes

over   the   identification        of   the   responsible       operator    may    be

infrequent.     Nonetheless, as the facts of this case demonstrate,

such disputes do arise and medical evidence can be dispositive.

Under Marfork’s interpretation, an operator would not be required

to investigate the medical issues pertinent to liability until


                                         15
after the liability Rubicon had been crossed.            The DOL clearly did

not intend such a result.

      Marfork contends that the Director’s interpretation would

impose an unreasonable burden on mine owners.             Because liability

and entitlement evidence can be intertwined, Marfork argues, mine

operators would be required to develop and present both types of

evidence to the district director in every case.                    Under the

Schedule, the operator is allowed only sixty days to present

liability evidence to the district director. Marfork contends that

this time period is insufficient because black lung cases can often

be medically complex.

      This argument is unpersuasive.          In the DOL’s experience, the

identity of the responsible operator is infrequently in dispute.

Thus, the operator would be required to present medical evidence to

the district director in only in a small number of cases.

      As to the time pressure, the sixty day time limit can be

extended for good cause shown.         20 C.F.R. § 725.423.         Nothing in

the   record    suggests   that    district   directors    would    deny   mine

operators      ample   time   to   develop    relevant    medical     evidence

pertaining to liability.



                                      IV.




                                      16
       Marfork next argues that the ALJ committed error by finding

that    Marfork   had   not   shown   extraordinary     circumstances.   We

disagree.

       The ALJ carefully analyzed this issue.             As he determined,

Marfork was on notice that Weis may have developed complicated

pneumoconiosis     before     1994,   when   he   was   hired.   Complicated

pneumoconiosis is a progressive disease that develops over time.

When Marfork hired Weis in 1994, he had been working in coal mines

for other operators for decades.         When Weis applied for black lung

benefits, his application, which was sent to Marfork, stated that

he had previously received state workers’ compensation benefits for

black lung disease on three occasions.30

       At the district director stage, Weis produced evidence that he

had been diagnosed with complicated pneumoconiosis.31              Based on

these and other facts, the ALJ found that Marfork had failed to




       30
      On his application, Weis disclosed that West Virginia had
awarded him state benefits in 1992, 2000, and 2002. J.A. 2.
       31
      The Schedule contained Dr. Patel’s diagnosis of complicated
pneumoconiosis. Pursuant to the Schedule, Weis submitted the x-ray
readings by Drs. Parker and Proto. Dr. Parker’s report explicitly
stated that his examination of the x-rays dated 1971, 1974, 1980,
1996, 1999, 2000, and 2003 revealed “advanced dust related disease
- progressive massive fibrosis,” which was seen in 1996, 1999,
2000, 2003, and which “has progressed [from] 1996 [to] 2003.” J.A.
14.

                                       17
develop evidence clearly suggesting that another operator might be

liable.   On appeal, the Board agreed.32

     We find nothing in the record to disturb the ALJ’s conclusion.

Marfork did not begin investigating the case until the ALJ stage.

When Dr. Crisalli all but confirmed the diagnosis of complicated

pneumoconiosis, Marfork belatedly sprang into action, scouring

hospitals for medical records and ultimately tracking down the

crucial 1992 x-ray.     J.A. 354; 364.   Extraordinary circumstances

might exist if the x-ray were hidden or could not have been located

at the district director stage.   Such is not the case here.   The x-

ray was waiting to the found.     Accordingly, we affirm the ALJ’s

finding that Marfork failed to show extraordinary circumstances.



                                  V.

     Marfork makes two additional arguments, each of which we need

address only briefly.




     32
      In affirming the ALJ’s decision, the Board correctly noted
that Marfork never provided any explanation to the ALJ why it had
failed to develop its evidence at the district director stage.
J.A. 397.

                                  18
                                          A.

     In the Act, Congress stated its intent to impose liability

only on the responsible operator.33 Based on the 1992 x-ray, it now

appears     that    Weis    contracted    complicated        pneumoconiosis    while

employed by another mine operator.34                 In light of this discovery,

Marfork contends that holding it liable would violate the intent of

Congress.

     This argument fails because it relies on evidence that was

properly     excluded      from   the    record.       The    department     has   the

authority to write regulations governing the orderly litigation of

black lung cases.          Those regulations presume that the operator who

last employed the miner for more than a year is responsible.35

Operators     are    provided     a   fair     chance,      however,   to   introduce

exculpatory evidence into the record.                 Marfork missed its chance.

Because     the    medical    evaluations       of    the    1992   x-ray   were   not

presented to the district director, the evidence Marfork relies

upon is outside the record.              For purposes of this litigation it

does not exist. Based on the properly admitted administrative


     33
      Marfork cites § 932 of the Act, which provides that coal mine
operators are responsible for paying benefits to miners whose death
or total disability due to black lung disease arose out of
employment in the operator’s mine.
     34
      Marfork avers that Weis’s employer in 1992, Maben Energy
Corporation, went bankrupt, and that this is a case where the Fund
should be liable for benefits. See 20 C.F.R. § 725.495(a)(4).

     35
          20 C.F.R. § 725.495.

                                          19
record, Marfork is the responsible operator and the intent of the

Act has not been violated.

                                         B.

        Marfork next faults the ALJ for failing to admit the 1992

medical evidence for the purpose of establishing the date of onset

of   Weis’s      complicated   pneumoconiosis.        In   order     to   properly

compensate Weis for his injuries, Marfork contends, a remand is

necessary to consider the newly discovered evidence. Because the

ALJ would necessarily consider the 1992 evidence to establish date

of onset, Marfork asserts that it would be irrational to ignore the

same evidence for the purpose of imposing liability.

        Weis’s entitlement to benefits, however, is an issue for Weis

- not Marfork - to raise. Indeed, Weis has attempted to challenge

the ALJ’s date of onset determination before this Court.36 He is

precluded from doing so, however, by the doctrine of administrative

waiver. Although named as a respondent when Marfork appealed the

ALJ’s        liability   determination    to   the   Board,   Weis    failed   to

challenge the ALJ’s subsidiary conclusion establishing month of

onset. Weis filed no brief and declined to appear at oral argument

before the Board. J.A. 335; 386.              Accordingly, he has waived his




        36
      See Resp’t’s Br. at 2. (“The [Board] erred only in confirming
the ALJ’s determination that the onset of permanent disability in
this case was April 1, 1996.”)

                                         20
entitlement argument for consideration by this Court.37 See Beth

Energy Mines v. Cunningham, 104 F. Appx. 881 (4th Cir. 2004)

(Employer waived statute of limitations objection by failing to

present it to Board); Armco, Inc. v. Martin, 
277 F.3d 468
, 476

(Declining,    on   grounds    of    administrative   waiver,   to   address

arguments not presented to Board).



                                      VI.

     We conclude that the Board correctly determined that medical

evidence    offered     only    to     disprove    liability    constitutes

“documentary evidence” within the meaning of § 725.456(b)(1). We

also conclude that the Board properly affirmed the exclusion of

Marfork’s     medical   evidence      from   the   administrative    record.

Accordingly, we affirm the Board’s decision and deny Marfork’s

petition for review.

                                                                     AFFIRMED


     37
       In addition, Weis’s attempt to appeal to this Court is barred
by the regulations governing proceedings before the Board. Once
Marfork appealed the ALJ’s liability determination, Weis, as a
prevailing party, was required to file a cross-appeal in order to
alter or amend the result of the proceedings before the ALJ. See 20
C.F.R. § 802.201(a)(2); King v. Tennessee Consolidated Coal Co., 6
BLR 1-87 (Ben.Rev.Bd. 1983)(Cross-appeal required where “prevailing
party” seeks to alter judgment below); accord Malcomb v. Island
Creek Coal Co., 
15 F.3d 364
, 369 (Argument made without cross-
appeal must support ALJ’s decision, but not necessarily his
reasoning). Although Weis’s entitlement argument would have
precisely this effect, he declined file a cross-appeal to the
Board. Having failed to comply with the Board’s regulations, Weis
is therefore precluded from objecting to the ALJ’s conclusion
establishing date of onset.

                                       21
WILLIAMS, Chief Judge, dissenting:

      The regulations governing applications for benefits under the

Federal Coal Mine Health and Safety Act of 1969, 30 U.S.C.A. §§

901-945 (West 2007) (“the Black Lung Benefits Act” or “the Act”),

set   forth   detailed   requirements     governing   the    development     of

evidence at each stage of the administrative process through which

such claims are adjudicated.        Among these provisions is 20 C.F.R.

§ 725.456(b)(1), which provides as follows:

      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.

20 C.F.R. § 725.456(b)(1) (2007).           The majority arrives at its

interpretation     of    §    725.456(b)(1)    by     taking     the   phrase

“[d]ocumentary evidence pertaining to [] liability” out of context

and concluding that, when viewed in isolation, the regulation’s

reference to “[d]ocumentary evidence pertaining to [] liability” is

“unqualified,”    ante   at   12,   and   therefore   must     encompass     all

evidence submitted for the purpose of proving or disproving an

operator’s liability that is documentary in form.              I disagree.

      For the reasons that follow, I agree with Marfork Coal Co.

(“Marfork”) that the language and structure of § 725.456(b) (as

well as the “regulatory history” on which the majority relies)

reveal that the regulation delineates two distinct categories of

                                     22
documentary evidence -- “medical evidence” and “evidence pertaining

to the liability of a potentially liable operator and/or the

identification of a responsible operator,” which the Department of

Labor (“DOL”) did not anticipate would overlap.        Moreover, cross

references between the regulations make clear that the category of

evidence pertaining to liability in § 725.456(b) encompasses only

that evidence which 20 C.F.R. §§ 725.408(b) and 725.414(b) (2007)

authorize parties to submit to the district director.           I would

therefore conclude that, because the phrase “[d]ocumentary evidence

pertaining to [] liability” in § 725.456(b) references a narrow and

specific   category   of   evidence    identified   elsewhere   in   the

regulations, the Benefits Review Board (“BRB”) erred in construing

the phrase as broadly encompassing any and all documentary evidence

used to disprove liability.1   Accordingly, I respectfully dissent.




     1
      The majority states that an operator may avoid liability by,
among other things, “prov[ing] that it did not cause, contribute
to, or aggravate the miner’s pneumoconiosis” or “prov[ing] that the
miner was already totally disabled by pneumoconiosis before he was
hired.” Ante at 3. These alternatives, however, are one and the
same.    Demonstrating that a miner was totally disabled from
pneumoconiosis prior to his employment with the operator is simply
one way of proving that the operator did not cause or contribute to
the miner’s total disability. See, e.g., Truitt v. N. Am. Coal
Co., 2 Black Lung Rep. 1-199, 1-204/05 (1979) (reasoning that
because a miner with complicated pneumoconiosis is irrebutably
presumed to be totally disabled due to pneumoconiosis, coal mine
employment subsequent to the development of the complicated
pneumoconiosis could not contribute to the disability).

                                  23
                                I.

     We review the BRB’s decision for errors of law and to ensure

that the BRB adhered to its statutory standard of review.      Dehue

Coal Co. v. Ballard, 
65 F.3d 1189
, 1193 (4th Cir. 1995).    “To that

end, we undertake an independent review of the record, as in the

place of the BRB, to determine whether the ALJ’s factual findings

were based upon substantial evidence in the record.”        
Id.   We

review the 
BRB’s legal conclusions de novo.   
Id.

     Because the Director 
of the Office of Workers’ Compensation

(“the Director”) administers the regulations implementing the Black

Lung Benefits Act, we accord his interpretation of an ambiguous

regulatory provision “substantial deference unless it is plainly

erroneous or inconsistent with the regulation.”     Mullins Coal Co.

v. Director, O.W.C.P., 
484 U.S. 135
, 159 (1987) (internal quotation

marks omitted).   In this case, however, the majority relies on the

“plain language and history of the regulation,” ante at 2, in

embracing the Director’s view, not deference to its proponent.    In

addition, the Director himself has asserted that because “the

regulatory language is clear and unambiguous,” no deference is due.

(J.A. at 355.)    Although I read the regulations differently than

the Director, I agree that their meaning is plain.    Accordingly, I

too would accord no deference to the Director’s interpretation.




                                24
                                    A.

      As with the interpretation of statutes, our interpretation of

federal regulations begins with their language.          See Robinson v.

Shell Oil Co., 
519 U.S. 337
, 340 (1997) (“Our first step in

interpreting a statute is to determine whether the language at

issue has a plain and unambiguous meaning with regard to the

particular dispute in the case.”).           Questions concerning the

plainness or the ambiguity of the statutory language are resolved

“by reference to the language itself, the specific context in which

that language is used, and the broader context of the statute as a

whole.”    
Id. at 341; see 
also Ayes v. U.S. Dept. of Veterans

Affairs, 
473 F.3d 104
, 108 (4th Cir. 2006) (“Of course, in looking

to the plain meaning, we must consider the context in which the

statutory words are used because we do not construe statutory

phrases in isolation; we read statutes as a whole.” (internal

quotation marks omitted)).

      The language and structure of § 725.456(b) make clear that §

725.456(b)(1)’s reference to “[d]ocumentary evidence pertaining to

[]   liability”   does   not   encompass   medical   evidence.   Section

725.456(b)(1) provides that:

      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.

                                    25
20 C.F.R. § 725.456(b)(1).             Thus, § 725.456(b)(1) sets forth

separate requirements for “[d]ocumentary evidence pertaining to

the   liability      of   a    potentially     liable   operator     and/or     the

identification of a responsible operator” and “[m]edical evidence.”

Id.   Section 725.456(b)(2), in 
contrast, provides that

      [s]ubject 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.

Id. § 725.456(b)(2) (emphasis 
added).            In § 725.456(b)(2), the DOL

did   not    leave   it   to    the   reader    to   assume   that   “any     other

documentary material” could include medical reports. Instead, that

subsection explicitly states that the reference to documentary

material included medical reports.             Applying the rule of statutory

construction expressio unius est exclusio alterius (“the expression

of one thing implies the exclusion of another”), the omission of a

reference to medical evidence in § 725.456(b)(1)’s pronouncement

regarding     “[d]ocumentary      evidence     pertaining     to   liability”    is

properly understood as an exclusion of that evidence.                  See 
Ayes,

473 F.3d at 110-11 
(“The time-honored maxim expressio unius est

exclusio alterius . . . applies with great force here.”); 2A Norman

J. Singer, Sutherland on Statutory Construction § 47.23 (6th ed.

2000).      Thus, given the language of § 725.456(b)(2), it is clear




                                        26
that the phrase “[d]ocumentary evidence pertaining to [] liability”

in § 725.456(b)(1) does not encompass medical evidence.

                                 B.

     Moreover,   even   absent   the   explicit   language   in    §

725.456(b)(2),   the interplay among the regulations governing the

adjudication of claims for benefits under the Black Lung Benefits

Act further demonstrates that the reference to “[d]ocumentary

evidence pertaining to [] liability” in § 725.456(b)(1) is not an

unqualified phrase encompassing all evidence having any bearing on

an operator’s liability.   As explained below, that phrase merely

references specific evidence identified elsewhere in the regulatory

scheme.

     The DOL’s regulations detail the mechanism through which an

operator’s liability and a claimant’s entitlement to benefits are

established. With regard to liability, the district director first

uses the information provided in an applicant’s claim form to

identify one or more potentially liable operators and sends those

operators a notice of claim.     20 C.F.R. § 725.407 (2007).      An

operator receiving such a notice has thirty days within which to

file a response “indicating its intent to accept or contest its

identification as a potentially liable operator.”     20 C.F.R. §

725.408(a)(1) (2007). If the operator contests its identification,

it must, “on a form supplied by the district director, state the

precise nature of its disagreement by admitting or denying each of


                                 27
[the five] assertions” listed in 20 C.F.R. § 725.408(a)(2).     20

C.F.R. § 725.408(a)(2).   The five assertions in § 725.408(a)(2)

relate only to the operator’s employment of the claimant and

ability to make payments.2   The operator “may submit documentary

evidence in support of its position” within 90 days of the date on

which it received the notice of claim.   20 C.F.R. § 725.408(b)(1).

An operator that does not submit documentary evidence relevant to

the five assertions in § 725.408(a)(2) within the 90-day period is

precluded from introducing the evidence at a later date. 20 C.F.R.

§ 725.408(b)(2) (“No documentary evidence relevant to the grounds

set forth in [§ 725.408(a)(2)] may be admitted in any further

proceedings unless it is submitted within the time limits set forth

in this section.”).

     After receiving the responses and evidence submitted pursuant

to § 725.408, the district director designates a “responsible

operator” liable for the payment of benefits and issues a schedule



     2
      Specifically, the five assertions that the operator must
admit or deny are:
     (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.
20 C.F.R. § 725.408(a)(2) (2007).

                                28
for the submission of additional evidence.                     20 C.F.R. § 725.410

(2007).    The schedule must allow the parties “not less than sixty

days within which to submit additional evidence, including evidence

. . . relevant to the liability of the designated responsible

operator.” 20 C.F.R. § 725.410(b). This additional evidence must,

however, “meet the requirements set forth in § 725.414 in order to

be admitted into the record.”            20 C.F.R. § 725.410(b).

      Section     725.414,     in    turn,        contains   separate     subsections

entitled “medical evidence” and “evidence pertaining to liability.”

See   20   C.F.R.   §   725.414(a),(b).3              The    subsection    addressing

evidence pertaining to liability, § 725.414(b), provides that

“[e]xcept    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.”      20 C.F.R. § 725.414(b)(1).              Thus, the only “evidence

pertaining to liability” that § 725.414 permits a designated

responsible operator to submit to the district director is evidence

that (1) demonstrates that it is not the potentially responsible

operator that most recently employed the claimant, and (2) does not

go to the five assertions in § 725.408(a)(2).                     See 20 C.F.R. §§

725.408(b)(2), 725.414(b)(1).            Section 725.414 does not authorize



      3
      Section 725.414 distinguishes between documentary evidence
and testimony. Section 725.414(a) & (b) apply only to documentary
evidence. Section 725.414(c) addresses testimony. See 20 C.F.R.
§ 725.414 (2007).

                                             29
the designated responsible operator to submit any other type of

evidence pertaining to liability.

     Pursuant to § 725.414(d), parties must submit the “evidence

pertaining to liability” detailed in § 725.414(b) within the time

period allotted in the schedule set by the district director; it

cannot be introduced into the record at a later stage of the

proceedings.   See 20 C.F.R. § 725.414(d).   Section 725.414(d) does

not apply to medical evidence submitted in accordance with §

725.414(a).    In   addition,   §   725.414(d)’s   limitation    on    the

submission of evidence pertaining to liability is not absolute --

it excepts evidence admissible under §§ 725.456 and 725.310(b). 20

C.F.R. § 725.414(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.”).4

     Accordingly,   evidence    pertaining   to    liability    that   is

admissible under § 725.414(b) may be submitted after a case has



     4
      Section 725.310(b) addresses the submission of additional
medical evidence in modification proceedings (proceedings in which
the district director may reconsider the terms of an award or the
denial of benefits), and has no applicability to the introduction
of liability evidence while a claim is before the ALJ.      See 20
C.F.R. § 725.310(b) (2007).

                                    30
been transferred from the district director to the Office of

Administrative     Law    Judges    (ALJs)    only     if    it    falls      within   an

exception   contained      in   §   725.456.       One      such   exception      is    §

725.456(b)(1), the provision discussed in Part A, which allows the

admission   into    the    hearing    record      of   “[d]ocumentary          evidence

pertaining to liability” that was not submitted to the district

director    in     “extraordinary       circumstances.”              20       C.F.R.   §

725.456(b)(1) (stating that “[d]ocumentary evidence pertaining to

the liability of a potentially liable operator which was not

submitted to the district director shall not be admitted into the

hearing record in the absence of extraordinary circumstances”).

      Thus, contrary to the majority’s view, § 725.456(b)(1) does

not represent an independent requirement governing a category of

“evidence pertaining to [] liability” broader than or otherwise

different from the “evidence pertaining to liability” described in

§§   725.408(b)    and    725.414(b).        It   simply     places       a   qualified

limitation on the parties’ ability to introduce to the ALJ evidence

that they could have submitted to the district director pursuant to

§§ 725.408(b) and 725.414(b).

                                        C.

      Contrary to the majority’s assertion, the comments to the

regulations governing the adjudication of claims for Black Lung

benefits do not countenance an expansive interpretation of §

725.456(b)(1).      To the contrary, an examination of these comments


                                        31
further demonstrates that the DOL intended to allow potentially

liable operators to defer the development of medical evidence until

after a case was referred to the Office of ALJs.

     The majority correctly notes that when the DOL revised the

regulations in 2000, it sought to streamline the processing of

claims.   Regulations Implementing the Federal Coal Mine Health and

Safety Act of 1969, as Amended, 65 Fed. Reg. 79920, 79990 (Dec. 20,

2000). To this end, the revised regulations prohibit remand to the

district director for the designation of a new responsible operator

in the event that the ALJ determines the district director erred in

its original selection.        
Id. at 79986.    This 
restriction reduces

delay in the adjudication of claims but also “places the risk that

the district director has not named the proper operator on the

Black Lung Disability Trust Fund [(the “Fund”)].”             
Id.

     The Director argues 
that the DOL proved willing to place this

risk on the Fund because the DOL believed that the regulations

governing    evidence   pertaining    to   liability      would   provide   the

district director with the information necessary to designate the

correct responsible operator and avoid subjecting the Fund to

unwarranted liability.        The majority accepts this contention, and

reads the Federal Register commentary as evincing the DOL’s belief

that,   in   revising   the    regulations,    it   had   provided   for    the

submission of all evidence relevant to liability to the district

director.    That the DOL sought to provide the district director


                                     32
with       all   of    the   information    necessary     to   correctly      identify

responsible operators, however, does not mean that the regulations

the DOL enacted in fact accomplished this goal.

       In support of its view, the majority seizes on fragments of

the    commentary        stating    that    operators     must   “submit      evidence

regarding their potential liability for the claim” and that the

regulations require the “submission of any evidence relevant to the

liability of another party during the district director's claims

processing.”           
Id. at 79999.    To 
be sure, the comments do indicate

that “the evidentiary limitations of §§ 725.408 and 725.414 are

designed         to    provide   the   district     director     with   all    of   the

documentary           evidence   relevant     to    the    determination      of    the

responsible operator liable for the payment of benefits.”                      
Id. at

79976.5          The 
DOL’s belief that it had identified all of the

documentary           evidence   relevant   to     an   operator’s   liability      and

provided for its submission to the district director pursuant to §§



       5
      The comments, like the regulations, recognize two types of
evidence relevant to liability “(1) [d]ocumentary evidence relevant
to an operator’s identification as a potentially liable operator,
governed by § 725.408; and (2) documentary evidence relevant to the
identity of the responsible operator, governed by § 725.414 and
725.456(b)(1).”   Regulations Implementing the Federal Coal Mine
Health and Safety Act of 1969, as Amended, 65 Fed. Reg. 79920,
79976 (Dec. 20, 2000). The comments also describe the two types of
evidence. With regard to the documentary evidence relevant to the
identity of the responsible operator, they state that, “[u]nder §
725.414, an operator may submit documentary evidence to prove that
a company that more recently employed the miner should be the
responsible operator.” 
Id. They do not, 
however, reference any
other evidence as potentially relevant to liability.

                                            33
725.408 and 725.414, however, has no bearing on whether § 725.456

properly can be construed as creating an independent requirement

that operators submit medical evidence bearing on liability to the

district director.6

     Moreover, the commentary explicitly states that the revised

regulations “permit parties to maintain their current practice of

deferring the development of medical evidence until after a case

had been referred to the Office of Administrative Law Judges.” 
Id.

at 79984.     The 
DOL addressed the anticipated costs of compliance

with the revised regulations in some detail, explaining that “while

potentially    liable   operators   [would]   be   required   to   develop

evidence relevant to their liability while claims [were] pending

before district directors, they [would] no longer need to expend

money on the development of medical evidence in those cases . . .

that do not proceed beyond the district director level.”             
Id.

Accordingly, “in the 
small number of cases in which the Department

[did] not name the miner’s most recent employer as the responsible


     6
      The DOL may have overlooked this possibility because cases in
which medical evidence is relevant to the identification of the
responsible operator are rare. Medical evidence is irrelevant in
cases involving simple pneumoconiosis, and these cases account for
the majority of claims under the Act. And, as the Director has
acknowledged, complicated pneumoconiosis cases in which liability
is disputed are rare. Rarer still are cases in which a miner is
presumed totally disabled from complicated pneumoconiosis but works
for several more years before filing for benefits. Moreover, even
in these unusual circumstances, the claimant would ordinarily seek
out evidence relevant to the onset date of his complicated
pneumoconiosis in order to obtain the full amount of benefits
available under the Act.

                                    34
operator,” the earlier employer might “incur additional costs in

attempting to establish that a more recent employer should be held

liable for the payment of benefits.”                    
Id.   The DOL believed,
however, that “[i]n comparison to the costs of developing medical

evidence . . . the additional costs imposed by the regulations

[would] not be significant.”            
Id.    Thus, the comments 
reveal that

the DOL intended the revised regulations to allow operators to

defer the development of medical evidence until the case reached

the ALJ.

                                         D.

     In sum, the language and structure of 20 C.F.R. § 725.456(b)

itself,    the    interplay      among    the    regulations        governing   the

development      of   evidence    at    each    stage    of   the   administrative

process, and the Federal Register comments to the regulations make

clear that § 725.456(b) differentiates between “medical evidence”

and “evidence pertaining to liability.”             These sources also reveal

that whether a particular piece of documentary evidence constitutes

medical evidence or evidence pertaining to liability depends on

what the evidence is, not the purpose for which it is offered.

Only evidence relevant to the five assertions in § 725.408(a)(2)

and evidence demonstrating that an operator was not the potentially

liable     operator     that     most    recently       employed    the   claimant

constitutes “evidence pertaining to liability” within the meaning

of §§ 725.414(b)&(d) and 725.456(b)(1).             The evidence that Marfork


                                         35
sought to introduce to the ALJ -- interpretations of a 1992 x-ray

demonstrating that Weis suffered from complicated pneumoconiosis

prior to his employment with Marfork -- was neither.          Accordingly,

the BRB erred in concluding that § 725.456(b)(1) precluded the

introduction into the record of the 1992 x-ray interpretations.7



                                   II.

     In sum, I believe that the BRB erred in concluding that

medical   evidence    may   constitute      “evidence   pertaining       to   []

liability”   within   the   meaning    of   §   725.456(b)(1).       I    would



     7
      I also wish to note that, even were I to agree with my
colleagues’ interpretation of § 725.456(b), I would be inclined to
find that submission of the 1992 x-ray before the Administrative
Law Judge (“ALJ”) was proper because § 725.456(b)(1) permits
submission of documentary evidence to the ALJ in extraordinary
circumstances. Given that the comments to the regulations indicate
that the regulations “permit parties to maintain their current
practice of deferring the development of medical evidence until
after a case had been referred to the Office of Administrative Law
Judges,” 65 Fed. Reg. at 79984, and promise that the regulations
will not be a trap for the unwary litigant, see Fed. Reg. at 79986
(rejecting such criticism because “the nature of the evidence
required . . . and the time limits for submitting that evidence,
are clearly set forth in the regulations, and will be communicated
to potentially liable operators who are notified of a claim by the
district director”), it seems unduly harsh to presume Marfork had
notice that it needed to present the 1992 x-ray to the district
director.
     Moreover, in this case, permitting Marfork to introduce the
1992 x-ray would not have worked prejudice upon the Fund.      The
record instead reveals that Weis’s employer in 1992, Maben Energy
Co., went bankrupt while self-insured and that its liability
transferred to the Fund. See C.F.R. § 725.495(a)(4)(2007). Thus,
the Fund would have been liable in any event and, if anything, is
now receiving a windfall in that a demonstrably innocent operator
is left to provide Weis’s benefits.

                                      36
therefore reverse the BRB’s determination that the ALJ properly

ignored the 1992 x-ray interpretations in adjudicating Marfork’s

liability for Weis’s Black Lung benefits and remand for further

proceedings.   Accordingly, I respectfully dissent.




                                37