On February 5, 2021, UWC filed comments on proposed Black Lung Self Insurance Guidelines. The guidelines that were released on January 4, 2021 by the Office of Workers’ Compensation Programs (OWCP) describe the agency’s updated process for evaluating self-insurance applications under the Black Lung Benefits Act (BLBA). The BLBA requires coal mine operators to secure the payment of benefits by either purchasing commercial insurance or obtaining the Department’s authorization to self-insure those liabilities. Authorization to self-insure may be granted or denied at the Department’s discretion. OWCP made the programmatic changes and preliminary bulletin available for public comment pursuant to the Department of Labor’s PRO Good Guidance Rule. UWC comments included:
Self-Insurance Authority
The minimum criteria should recognize the volatility of the business of mining coal by providing flexibility in determining the minimum criteria whether the employer has been in the business of mining coal for at least three consecutive years prior to the application to self-insure.
Employers may have been forced to close operations for a period prior to application due to government requirements related to COVID-19 or other factors beyond the employer’s control. There should be flexibility in evaluating whether the employer continued in the business of mining and in the application of the three consecutive year criterion.
The minimum criterion that the operator must have at least five full-time employee-miners should be applied flexibly to recognize the volatility of demand for goods and services and the need to close operations due to COVID-19 or other factors beyond the control of the employer.
An employer may be fiscally sound and able to meet its obligations with respect to workers’ compensation while employing fewer full time coal miners for a period of time prior to application for initial approval or renewal. Employers previously approved for self-insurance should not be denied renewal due to factors outside their control, including reduced demand for coal.
Ascertaining Security
Flexibility in the determination of “future liabilities” and the level of risk for operators is needed.
The business of coal mining can be extremely volatile. It may be impacted by unforeseen legislative changes in workers’ compensation coverage and regulation. It may also be impacted by changes in demand for coal and competition from other sources of energy. Many of these variables impact the accuracy in determining “future liabilities” and should be recognized when evaluating actuarial soundness and operator financial health.
There should also be flexibility in determining whether operators are low, medium, or high-risk operators in light of the volatility of the industry and factors beyond the control of the employer.
Self-Insurance Authority
The minimum criteria should recognize the volatility of the business of mining coal by providing flexibility in determining the minimum criteria whether the employer has been in the business of mining
All comments received will be posted without change to www.regulations.gov.
