# Federal Register / Vol. 86, No. 6 / Monday, January 11, 2021 / Proposed Rules

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/agency%3Adol%3A728bf23967bc358a

## Record

- **Collection:** Agency decision
- **Document type:** Agency decision

## Text

Federal Register / Vol. 86, No. 6 / Monday, January 11, 2021 / Proposed Rules
parties of the right to object to the
findings and/or order and to request a
hearing, and of the right of the
respondent to request an award of
attorney fees not exceeding $1,000 from
the ALJ, regardless of whether the
respondent has filed objections, if the
respondent alleges that the complaint
was frivolous or brought in bad faith.
The findings and, where appropriate,
the preliminary order also will give the
address of the Chief Administrative Law
Judge, U.S. Department of Labor, or
appropriate information regarding filing
objections electronically with the Office
of Administrative Law Judges. At the
same time, the Assistant Secretary will
file with the Chief Administrative Law
Judge a copy of the original complaint
and a copy of the findings and/or order.
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■ 141. In § 1988.106, revise paragraph
(a) to read as follows:

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§ 1988.106 Objections to the findings and
the preliminary order and requests for a
hearing.

(a) Any party who desires review,
including judicial review, of the
findings and/or preliminary order, or a
respondent alleging that the complaint
was frivolous or brought in bad faith
who seeks an award of attorney fees
under MAP–21, must file any objections
and/or a request for a hearing on the
record within 30 days of receipt of the
findings and preliminary order pursuant
to § 1988.105. The objections, request
for a hearing, and/or request for attorney
fees must be in writing and state
whether the objections are to the
findings, the preliminary order, and/or
whether there should be an award of
attorney fees. The date of the postmark,
facsimile transmittal, or electronic
transmittal is considered the date of
filing; if the objection is filed in person,
by hand-delivery or other means, the
objection is filed upon receipt.
Objections must be filed with the Chief
Administrative Law Judge, U.S.
Department of Labor, in accordance
with 29 CFR part 18, and copies of the
objections must be served at the same
time on the other parties of record, the
OSHA official who issued the findings
and order, the Assistant Secretary, and
the Associate Solicitor, Division of Fair
Labor Standards, U.S. Department of
Labor.
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■ 142. In § 1988.107, revise paragraph
(b) to read as follows:
§ 1988.107

Hearings.

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(b) Upon receipt of an objection and
request for hearing, the Chief
Administrative Law Judge will promptly

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assign the case to an ALJ who will
notify the parties of the day, time, and
place of hearing. The hearing is to
commence expeditiously, except upon a
showing of good cause or unless
otherwise agreed to by the parties.
Hearings will be conducted de novo on
the record. ALJs have broad discretion
to limit discovery in order to expedite
the hearing.
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■ 143. In § 1988.110, revise paragraph
(c) to read as follows:

Signed on this 14th day of December, 2020,
in Washington, DC.
Eugene Scalia,
Secretary of Labor.
[FR Doc. 2020–28056 Filed 1–8–21; 8:45 am]
BILLING CODE 4510–HW–P

DEPARTMENT OF LABOR
Benefits Review Board
20 CFR Part 802
RIN 1290–AA35

§ 1988.110 Decision and orders of the
Administrative Review Board.

Rules of Practice and Procedure

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AGENCY: Benefits Review Board,

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(c) The decision of the ARB will be
issued within 120 days of the
conclusion of the hearing, which will be
deemed to be 14 days after the decision
of the ALJ, unless a motion for
reconsideration has been filed with the
ALJ in the interim. In such case, the
conclusion of the hearing is the date the
motion for reconsideration is ruled
upon or 14 days after a new decision is
issued. The ARB’s decision will be
served upon all parties and the Chief
Administrative Law Judge. The decision
will also be served on the Assistant
Secretary and on the Associate Solicitor,
Division of Fair Labor Standards, U.S.
Department of Labor, even if the
Assistant Secretary is not a party.
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Title 41: Public Contracts and Property
Management
PART 60—30 RULES OF PRACTICE
FOR ADMINISTRATIVE PROCEEDINGS
TO ENFORCE EQUAL OPPORTUNITY
UNDER EXECUTIVE ORDER 11246
■ 144. The authority citation for part

60–30 continues to read as follows:
Authority: Executive Order 11246, as
amended, 30 FR 12319, 32 FR 14303, as
amended by E.O. 12086; 29 U.S.C. 793, as
amended, and 38 U.S.C. 4212, as amended.
■ 145. In § 60–30.4, revise paragraphs

(b) and (c) to read as follows:
§ 60–30.4 Form, filing, service of pleadings
and papers.

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(b) Service. Service upon any party
shall be made by the party filing the
pleading or document in accordance
with 29 CFR part 26. When a party is
represented by an attorney, the service
shall be upon the attorney.
(c) Proof of service. A certificate of the
person serving the pleading or other
document, setting forth the manner of
service, shall be proof of the service.

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1857

Department of Labor.
ACTION: Notice of proposed rulemaking.
SUMMARY: The Department of Labor is

issuing this Notice of Proposed
Rulemaking to seek public comments on
a proposal to require electronic filing (efiling) and make acceptance of
electronic service (e-service) automatic
by attorneys and lay representatives
representing parties in proceedings
before the Benefits Review Board
(Board), and to provide an option for
self-represented parties to utilize these
electronic capabilities.
DATES: The Department invites
interested persons to submit comments
on the proposed rules of practice and
procedure. To ensure consideration,
comments must be in writing and must
be received by February 10, 2021.
ADDRESSES: You may submit comments,
identified by Regulatory Identification
Number (RIN) 1290–AA35, only by the
following method: Electronic
Comments. Submit comments through
the Federal eRulemaking Portal http://
www.regulations.gov. To locate the
proposed rule, use docket number DOL–
2020–0013 or key words such as
‘‘Administrative practice and
procedure,’’ ‘‘Black lung benefits,’’
‘‘Longshore and harbor workers,’’ or
‘‘Workers’ compensation.’’ Follow the
instructions for submitting comments.
All comments must be received by 11:59
p.m. on the date indicated for
consideration in this rulemaking.
Instructions: All submissions received
must include the agency name and
docket number or RIN for this
rulemaking. All comments received
generally will be posted without change
to http://www.regulations.gov, including
any personal information provided.
Therefore, the Department recommends
that commenters safeguard their
personal information by not including
social security numbers, personal
addresses, telephone numbers, or email
addresses in comments. It is the

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responsibility of the commenter to
safeguard personal information.
If you need assistance to review the
comments and the proposed rule, the
Department will consider providing the
comments and the proposed rule in
other formats upon request. For
assistance to review the comments or
obtain the proposed rule in an alternate
format, contact Mr. Thomas Shepherd,
Clerk of the Appellate Boards, at (202)
693–6319.
FOR FURTHER INFORMATION CONTACT: Mr.
Thomas Shepherd, Clerk of the
Appellate Boards, at (202) 693–6319 or
Shepherd.Thomas@dol.gov. Individuals
with hearing or speech impairments
may access this telephone number by
TTY by calling the toll-free Federal
Information Relay Service at (800) 877–
8339.
SUPPLEMENTARY INFORMATION: This
preamble is divided into four sections:
Section I describes the process of
rulemaking using a direct final rule with
a companion proposed rule; Section II
provides general background
information on the development of the
proposed rulemaking; Section III is a
section-by-section summary and
discussion of the proposed regulatory
text; and Section IV covers the
administrative requirements for this
proposed rulemaking.

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I. Proposed Rule Published
Concurrently With Companion Direct
Final Rule
The Department is simultaneously
publishing with this proposed rule an
identical ‘‘direct final’’ rule elsewhere
in this issue of the Federal Register. In
direct final rulemaking, an agency
publishes a final rule with a statement
that the rule will go into effect unless
the agency receives significant adverse
comment within a specified period. If
the agency receives no significant
adverse comment in response to the
direct final rule, the rule goes into
effect. If the agency receives significant
adverse comment, the agency withdraws
the direct final rule and treats such
comment as submissions on the
proposed rule. The proposed rule then
provides the procedural framework to
finalize the rule. An agency typically
uses direct final rulemaking when it
anticipates the rule will be noncontroversial.
The Department has determined that
this rule is suitable for direct final
rulemaking. The proposed revisions to
the Board’s procedural regulations
would require represented parties,
unless exempted by the Board for good
cause shown, to file documents via the
Board’s new electronic case

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management system, which will also
automatically serve these documents on
registered system users. Some parties
are already e-filing documents with the
Board on a voluntary basis. Moreover,
this new system is similar to those used
by courts and other administrative
agencies and will thus be familiar to the
representatives. The proposed rule also
would give self-represented (pro se)
parties the option to file and serve
documents through the electronic case
management system or via conventional
methods. These changes to the Board’s
procedures and practices should not be
controversial. The Department has
determined that this rule is exempt from
the notice and comment requirements
under 5 U.S.C. 553(b) as a rule of agency
practice and procedure. Nonetheless,
the agency has decided to allow for
public input by issuing a direct final
rule and concurrent notice of proposed
rulemaking.
The comment period for this
proposed rule runs concurrently with
the comment period for the direct final
rule. Any comments received in
response to this proposed rule also will
be considered as comments regarding
the direct final rule and vice versa. For
purposes of this rulemaking, a
significant adverse comment is one that
explains (1) why the rule is
inappropriate, including challenges to
the rule’s underlying premise or
approach; or (2) why the direct final
rule will be ineffective or unacceptable
without a change. In determining
whether a significant adverse comment
necessitates withdrawal of the direct
final rule, the Department will consider
whether the comment raises an issue
serious enough to warrant a substantive
response had it been submitted in a
standard notice-and-comment process.
A comment recommending an addition
to the rule will not be considered
significant and adverse unless the
comment explains how the rule would
be ineffective without the addition.
The Department requests comments
on all issues related to this rule,
including economic or other regulatory
impacts of this rule on the regulated
community. All interested parties
should comment at this time because
the Department will not initiate an
additional comment period on the
proposed rule even if it withdraws the
direct final rule.
This rule is not an E.O. 13771
regulatory action because the Office of
Information and Regulatory Affairs has
determined it is not significant under
E.O. 12866.
Pursuant to the Congressional Review
Act (5 U.S.C. 801 et seq.), the Office of
Information and Regulatory Affairs

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designated this rule as not a ‘‘major
rule,’’ as defined by 5 U.S.C. 804(3).
I. Background of This Rulemaking
The Department promulgates this rule
under the authority of 5 U.S.C. 301, as
well as the Black Lung Benefits Act, 30
U.S.C. 901 et seq., and the Longshore
and Harbor Workers’ Compensation Act,
33 U.S.C. 901 et seq.
The Board is proposing a rule that
would make e-filing mandatory and
acceptance of e-service automatic for
parties represented by attorneys and lay
representatives. E-filing has been
optional and e-service was not available
through the Board’s prior electronic
system. As a result, the Board would
receive filings in both paper and
electronic form. The Board’s long-term
goal is to have entirely electronic case
files (e-case files), which the Board
believes will significantly benefit both
the Board and the participants in Board
appeals by allowing the Board to more
efficiently process incoming documents
and to reduce the time it takes to
adjudicate claims. Requiring attorneys
and lay representatives to use e-filing
and automatically receive service of efiled documents through the
Department’s electronic case
management system will help the Board
move toward this goal.
The Board previously used DOL
Appeals, a consolidated web-based case
tracking system deployed in FY2011 to
replace individual legacy applications
and streamline business processes
specific to each of the three
Adjudicatory Boards in the Department:
the Board, the Administrative Review
Board (ARB), and the Employees’
Compensation Appeals Board (ECAB).
The Board reviews appeals of
administrative law judges’ decisions
arising under the Black Lung Benefits
Act, and the Longshore and Harbor
Workers’ Compensation Act and its
extensions. The ARB issues decisions in
cases arising under a variety of worker
protection laws, including those
governing environmental,
transportation, and securities
whistleblower protections; H–1B
immigration provisions; child labor;
employment discrimination; job
training; seasonal and migrant workers;
and Federal construction and service
contracts. ECAB hears appeals taken
from determinations and awards under
the Federal Employees’ Compensation
Act with respect to claims of Federal
employees injured in the course of their
employment.
The DOL Appeals case management
system provided a broad range of
capabilities to the Adjudicatory Boards’
staff for inputting, processing, tracking,

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managing, and reporting specific details
on thousands of cases since its initial
implementation. In FY2013, the system
was enhanced to provide access to
parties. More than 1,400 individuals
were registered users of the DOL
Appeals system. Users had the ability to
check their case status, electronically
file motions and briefs, and receive
Board issuances electronically.
However, users who e-filed documents
still had to serve those documents on
other parties by some other method
(typically mail, commercial delivery, or
electronic mail), as DOL Appeals did
not have an automatic e-service function
like that of the Federal courts’ electronic
filing system. Moreover, because e-filing
has been optional, the Board received,
and still receives, many paper filings,
including from attorneys and lay
representatives.
At present, the Board lacks sufficient
resources to digitally image all
pleadings received in paper form, and
that option is unduly burdensome and
labor intensive. Furthermore, if e-filing
remains optional, it is unlikely that the
Board will achieve the goal of
completely electronic case files. If,
however, attorneys and lay
representatives are required to e-file all
documents through the Board’s new
case management system, imaging the
remaining paper pleadings from selfrepresented parties would be
manageable for the Board. In addition,
greater utilization of e-filing and eservice through the new case
management system will reduce case
processing times by eliminating the
timeframes required to allow for the
delivery of traditional mailings. These
time savings will allow the Board to
more efficiently process appeals without
any sacrifice to quality of work and will
also greatly reduce mailing and copying
costs for both the Board and the parties.
Although Federal agencies are
required by law to provide information
and services via the internet, agencies
must also consider the impact on
persons without access to the internet
and, to the extent practicable, ensure
that the availability of government
services has not been diminished for
such persons. 44 U.S.C. 3501 note.
Accordingly, the Board will make efiling and e-service optional for selfrepresented parties. The Board sees no
legal restriction to making e-filing
mandatory and acceptance of e-service
automatic for attorneys and lay
representatives, and does not believe it
would impose undue costs or
difficulties for them, particularly since a
party may obtain an exemption for good
cause shown. The Board notes in this
regard that e-filing is generally

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mandatory for attorneys in the Federal
district courts and U.S. Courts of
Appeals; unless an exemption is
granted, only self-represented parties
have the option of filing pleadings in
paper form. The Board also notes that,
consistent with the Federal courts, the
Department’s electronic case
management system requires the filer to
convert other electronic formats to
Portable Document File (PDF) before
filing. Parties filing via the electronic
case management system need a
computer, access to email and the
internet, and the ability to convert
documents to a PDF format. The rule
also provides that registered electronic
case management system users are
deemed to accept service of all
documents through the system. The
Board will issue decisions and orders
electronically to registered users who
are parties to a case.
III. Section-by-Section Analysis of
Proposed Rules
The Board proposes to remove and
reserve the following sections:
§ 802.204, Place for filing notice of
appeal and correspondence; § 802.207,
When a notice of appeal is considered
to have been filed in the office of the
Clerk of the Board; and § 802.216,
Service and form of papers. The Board
is making this change to clarify and
consolidate its rules governing
computation of time in current
§ 802.221, filing of documents in new
§ 802.222, and service of documents in
new § 802.223.
In general, the provisions in
§§ 802.204, 802.207, and 802.216 will be
moved into these three consolidated
regulations and revised to accommodate
mandatory e-filing and automatic
acceptance of e-service for represented
parties. The Board has proposed,
however, to remove from its regulations
the requirement in § 802.204 that a party
who files a notice of appeal must serve
a copy of it on the ‘‘deputy
commissioner’’ (an official who is now
called ‘‘district director,’’ 20 CFR
701.301(a)(7), 725.101(a)(16)). This nonstatutory procedure is no longer
required because the Board routinely
provides the district director with notice
of each appeal filed.
Sec. 802.219 Motions to the Board;
Orders
The Board proposes to amend
§ 802.219(d) to replace the current crossreference to § 802.216, a regulation the
Board proposes to remove, with crossreferences to new §§ 802.222 and
802.223. The new regulations will
govern filing and service of motions
made to the Board.

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Sec. 802.221 Computation of Time
The Board proposes to amend
§ 802.221 in several ways. Proposed
paragraph (a) retains the same general
time computation rule as in current
paragraph (a) but substitutes the word
‘‘must’’ for ‘‘shall’’ wherever it occurs.
This substitution is consistent with
Executive Order 13563, which states
that regulations must be ‘‘written in
plain language[.]’’ 76 FR 3821 (Jan. 18,
2011). No alteration in meaning is
intended by this change.
Proposed paragraph (b) is limited to
computing time for nonelectronic
documents. Paragraph (b)(1) retains the
current provision that, when sent by
mail, the time period calculated under
paragraph (a) is satisfied if the
document is mailed within that time
period, as demonstrated by postmark or
other evidence. Paragraph (b)(2) adds a
new provision to address the
widespread use of commercial carriers
(e.g., FedEx, UPS) for delivering
documents. The rule provides that the
time period calculated under paragraph
(a) is satisfied if delivered to the carrier
within that time period, as evidenced by
the carrier’s receipt or tracking
information.
Proposed paragraph (c) is a new
provision that addresses electronic
filings made through the case
management system. The time period
calculated under paragraph (a) is
deemed met if the pleading is filed by
11:59:59 p.m. Eastern Time on the due
date. The Board chose the Eastern Time
zone based on the fact that Washington,
DC is located within it. This mirrors the
approach of Federal courts. See, e.g.,
Fed. R. App. P. 26(a)(4); Fed. R. Civ. P.
6(a)(4). Finally, proposed paragraph (d),
which notes that waivers of filing time
limits may be requested by motion
(except for notices of appeal), is
identical to current paragraph (c).
Sec. 802.222 Filing Notice of Appeal,
Pleadings, and Other Correspondence
Proposed § 802.222 is a new rule
containing all filing requirements. The
rule incorporates many of the general
provisions in current § 802.216 and
adds additional provisions for electronic
filings. The rule also includes the
special provisions for determining when
a notice of appeal is filed that currently
appear in § 802.207. Placing all of this
information in one section will clarify
the parties’ obligations when filing any
pleading, exhibit, or other document
with the Board.
Proposed paragraph (a) contains the
general requirements that apply to all
pleadings, including captions,
certificates of service, signatures, and

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formatting. Because documents in a case
may need to be served by more than one
method, paragraph (a)(2) requires the
parties to include detailed service
information on the certificate of service.
To simplify signatures on electronic
filings, paragraph (a)(3) provides that
pleadings filed via the case management
system will be deemed signed by the
filing person.
Proposed paragraph (b) is a new
provision requiring filing parties to
redact certain personally identifiable
and sensitive information from all
documents filed with the Board. The
rule is intended to protect the interests
of the parties, minors who may be
involved in a case, and the public
generally. The language of this rule is
based on similar rules in the Federal
courts. See, e.g., Fed. R. Civ. P. 5.2(a);
see also Fed. R. App. P. 25(a)(5).
Proposed paragraph (c) governs
nonelectronic filings. It retains the
current requirements for submitting
paper documents (e.g., parties must file
an original and two copies of each
pleading) and includes the Board’s
address, which is currently located in
§ 802.204.
Proposed paragraph (d) is an entirely
new provision addressing electronic
filings. Paragraph (d)(1) requires
attorneys and lay representatives to
register for the electronic case
management system and file all
documents through it. This requirement
applies only to those documents filed 45
days after the effective date or later.
This time period between the effective
date, when litigants can be certain that
the direct final rule will not be
withdrawn, and the applicability date,
on which e-filing becomes mandatory,
allows the Office of Administrative Law
Judges to update its notices of appeal
rights so that by the time e-filing with
the Board is mandatory, parties will
have received a notice of appeal rights
with updated information. It also allows
parties who were previously filing and
serving documents by mail to adjust to
electronic filing. As discussed above,
mandating electronic filing and
automatically serving documents
electronically filed through the system
will benefit the parties and improve
case processing. The regulation requires
that e-filed documents be in PDF format
and expresses a preference for textsearchable PDF format. To simplify the
filing process, the regulation also
informs filers that no paper copies need
be filed unless requested by the Board;
electronic submission alone is
sufficient. Paragraph (d)(2) permits
attorneys and lay representatives to
request, by motion, an exemption from
mandatory e-filing or acceptance of

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automatic e-service for good cause
shown.
Proposed paragraph (d)(3) allows selfrepresented (i.e., pro se) parties to file in
either electronic or nonelectronic
format. Providing this flexibility will
allow these parties to easily participate
in their cases. To remove any confusion
about whether an electronically filed
document is a ‘‘paper,’’ paragraph (d)(4)
specifically provides that such
documents are written papers for
purposes of all of the Board’s procedural
rules. Proposed paragraph (d)(5)
addresses technical failures in two
ways. First, any person encountering
technical difficulties in filing or
receiving electronic documents through
the case management system may file a
motion with the Board requesting relief
appropriate to the particular incident.
The Board encourages filers to retain
documentation of the failure in these
instances. Second, paragraph (d)(5)
provides that the Board may issue a
special order providing relief (e.g.,
allowing nonelectronic filings) when the
case management system is not
operational.
Proposed paragraph (e) contains
special rules on filing notices of appeal.
Paragraph (e)(1) incorporates the general
rule contained in current § 802.207(a)(1)
on the filing date of a notice of appeal.
Paragraph (e)(2) generally incorporates
the provision in current § 802.207(a)(2)
that the Board may consider an appeal
submitted to another governmental unit
to have been filed with the Clerk of the
Board as of the date it was received by
the other governmental unit. Paragraph
(e)(2) does not specifically require that
the other governmental unit promptly
forward the notice of appeal to the office
of the Clerk of the Board because the
Board does not have such authority.
Paragraph (e)(3) incorporates the
provisions in current § 802.207(b) that
permit the Board to use the date of
mailing as the filing date for the notice
of appeal if appeal rights would
otherwise be lost. Paragraph (e)(3)
extends this same protection to notices
of appeal sent by commercial carrier
(e.g., FedEx, UPS) and provides that the
filing date in these instances is the date
of delivery to the commercial carrier.
Given the widespread use of
commercial carriers, this additional
provision will help ensure that parties’
appeal rights are not lost. Finally,
paragraph (e)(4) clarifies that electronic
notices of appeal filed through the case
management system are considered
received, and thus filed, as of the date
and time recorded by the system.

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Sec. 802.223

Service Requirements

Proposed § 802.223 is a new rule
containing all service requirements.
Paragraph (a) requires, akin to current
§ 802.216(c), parties to serve every party
in the case and the Solicitor of Labor
with a copy of all documents filed with
the Board. Paragraph (b) identifies the
types of nonelectronic service (personal
delivery; mail or commercial delivery)
and electronic service (electronic mail,
if consented to in writing by the person
served, and electronic service to a
registered user through the case
management system) permitted.
Significantly, paragraph (b)(2)(B)
provides that a registered electronic case
management system user ‘‘is deemed to
have consented to accept service
through the system.’’ Thus, automatic
service through the electronic case
management system is effective with
respect to registered system users
without any additional form of service.
Paragraph (c) describes when service is
effected for different delivery methods,
which could become important to a
cross-appeal filing under § 802.205(b).
Finally, paragraph (d) governs the
date of receipt for electronic documents
served by the case management system
or electronic mail. The receipt date is
particularly important to determining
deadlines for response briefs, responses
to motions, and requests for oral
argument. See §§ 802.212, 802.219,
802.305. Under paragraph (d)(1),
electronic case management systemserved documents are considered
received by the system’s registered users
in the case on the date the document is
sent by the system. Similarly, under
paragraph (d)(2) documents served via
electronic mail are considered received
when sent. In both instances, the
recipients of service will have rapid
access to the filed pleading, exhibit, or
other document.
IV. Administrative Requirements of the
Proposed Rulemaking
Executive Orders 12866, Regulatory
Planning and Review; and 13563,
Improving Regulation and Regulatory
Review
Executive Orders 12866 and 13563
direct agencies to assess the costs and
benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). Executive Order 13563
emphasizes the importance of
quantifying both costs and benefits, of

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Federal Register / Vol. 86, No. 6 / Monday, January 11, 2021 / Proposed Rules
reducing costs, of harmonizing rules,
and of promoting flexibility.
This proposed rule has been drafted
and reviewed in accordance with
Executive Order 12866. The Office of
Information and Regulatory Affairs of
the Office of Management and Budget
(OMB) determined that this direct final
rule is not a significant regulatory action
under section 3(f) of Executive Order
12866 because the proposed rule will
not have an annual effect on the
economy of $100 million or more; will
not create a serious inconsistency or
otherwise interfere with an action taken
or planned by another agency; and will
not materially alter the budgetary
impact of entitlements, grants, user fees,
or loan programs or the rights and
obligations of recipients thereof.
Furthermore, the proposed rule does not
raise a novel legal or policy issue arising
out of legal mandates, the President’s
priorities, or the principles set forth in
the Executive Order. Accordingly, OMB
has waived review.
Because no notice of proposed
rulemaking is required for this rule
under section 553(b) of the
Administrative Procedure Act, the
regulatory flexibility requirements of the
Regulatory Flexibility Act, 5 U.S.C. 601,
do not apply to this rule. See 5 U.S.C.
601(2).
The Department has determined that
this proposed rule is not subject to the
requirements of the Paperwork
Reduction Act, 44 U.S.C. 3501 et seq.,
as this rulemaking involves
administrative actions to which the
Federal government is a party or that
occur after an administrative case file
has been opened regarding a particular
individual. See 5 CFR 1320.4(a)(2), (c).
Unfunded Mandates Reform Act of 1995
and Executive Order 13132, Federalism

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■ 1. The authority citation for part 802

continues to read as follows:
Authority: 5 U.S.C. 301; 30 U.S.C. 901 et
seq.; 33 U.S.C. 901 et seq.; Reorganization
Plan No. 6 of 1950, 15 FR 3174; Secretary of
Labor’s Order 03–2006, 71 FR 4219, January
25, 2006.
§ 802.204

Paperwork Reduction Act

The Department has reviewed this
proposed rule in accordance with the
requirements of Executive Order 13132
and the Unfunded Mandates Reform Act
of 1995, 2 U.S.C. 1501 et seq., and has
found no potential or substantial direct
effects on the states, on the relationship
between the national government and
the states, or on the distribution of
power and responsibilities among the
various levels of government. As there
is no Federal mandate contained herein
that could result in increased
expenditures by state, local, and tribal
governments, or by the private sector,
the Department has not prepared a
budgetary impact statement.

21:32 Jan 08, 2021

List of Subjects in 20 CFR Part 802
Administrative practice and
procedure, Black lung benefits,
Longshore and harbor workers, Workers’
compensation.
For the reasons set forth in the
preamble, the Department of Labor
proposes to amend 20 CFR part 802 as
follows:
PART 802—RULES OF PRACTICE AND
PROCEDURE

Regulatory Flexibility Act of 1980

VerDate Sep<11>2014

Executive Order 13175, Consultation
and Coordination With Indian Tribal
Governments
The Department has reviewed this
proposed rule in accordance with
Executive Order 13175 and has
determined that it does not have ‘‘tribal
implications.’’ The proposed rule does
not ‘‘have substantial direct effects on
one or more Indian tribes, on the
relationship between the Federal
government and Indian tribes, or on the
distribution of power and
responsibilities between the Federal
government and Indian tribes.’’

Jkt 253001

[Removed and Reserved]

■ 2. Remove and reserve § 802.204.

§ 802.207

[Removed and Reserved]

■ 3. Remove and reserve § 802.207.

§ 802.216

[Removed and Reserved]

■ 4. Remove and reserve § 802.216.
■ 5. In § 802.219, revise paragraph (d) to

read as follows:
§ 802.219

Motions to the Board; orders

*

*
*
*
*
(d) The rules governing the filing and
service of documents in §§ 802.222 and
802.223 apply to all motions.
*
*
*
*
*
■ 6. Revise § 802.221 to read as follows:
§ 802.221

Computation of time.

(a) In computing any period of time
prescribed or allowed by these rules, by
direction of the Board, or by any
applicable statute which does not
provide otherwise, the day from which
the designated period of time begins to
run must not be included. The last day
of the period so computed must be
included, unless it is a Saturday,
Sunday, or legal holiday, in which event
the period runs until the end of the next
day which is not a Saturday, Sunday, or
legal holiday.

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1861

(b) For nonelectronic documents, the
time period computed under paragraph
(a) of this section will be deemed
complied with if—
(1) When sent by mail, the envelope
containing the document is postmarked
by the U.S. Postal Service within the
time period allowed. If there is no such
postmark, or it is not legible, other
evidence such as, but not limited to,
certified mail receipts, certificates of
service, and affidavits, may be used to
establish the mailing date.
(2) When sent by commercial carrier,
the receipt or tracking information
demonstrates that the paper was
delivered to the carrier within the time
period allowed.
(c) For electronic filings made through
the Board’s case management system,
paragraph (a) of this section will be
deemed to be met if the document is
electronically filed within the time
period allowed. A document is deemed
filed as of the date and time the Board’s
electronic case management system
records its receipt, even if transmitted
outside of the Board’s business hours set
forth in § 801.304 of this chapter. To be
considered timely, an e-filed pleading
must be filed by 11:59:59 p.m. Eastern
Time on the due date.
(d) A waiver of the time limitations
for filing a paper, other than a notice of
appeal, may be requested by proper
motion filed in accordance with
§§ 802.217 and 802.219.
■ 7. Add § 802.222 to subpart B to read
as follows:
§ 802.222 Filing notice of appeal,
pleadings, and other correspondence.

This section prescribes rules and
procedures by which parties and
representatives to proceedings before
the Board file pleadings (including
notices of appeal, petitions for review
and briefs, response briefs, additional
briefs, and motions), exhibits, and other
documents including routine
correspondence.
(a) Requirements for all pleadings. All
pleadings filed with the Board must—
(1) Include a caption and title.
(2) Include a certificate of service
containing—
(i) The date and manner of service;
(ii) The names of persons served; and
(iii) Their mail or electronic mail
addresses or the addresses of the places
of delivery, as appropriate for the
manner of service.
(3) Include a signature of the party (or
his or her attorney or lay representative)
and date of signature. Pleadings filed by
an attorney, lay representative or selfrepresented party via the Board’s case
management system will be deemed to
be signed by that person.

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(4) Conform to standard letter
dimensions (8.5 x 11 inches).
(b) Redacted filings and exhibits. Any
person who files a pleading, exhibit, or
other document that contains an
individual’s social security number,
taxpayer-identification number, or birth
date; the name of an individual known
to be a minor; or a financial-account
number, must redact all such
information, except the last four digits
of the social security number and
taxpayer-identification number; the year
of the individual’s birth; the minor’s
initials; and the last four digits of the
financial-account number.
(c) Nonelectronic filings. All
nonelectronic pleadings filed with the
Board must be secured at the top. For
each pleading filed with the Board, the
original and two legible copies must be
submitted. Nonelectronic filings must
be sent to the U.S. Department of Labor,
Benefits Review Board, ATTN: Office of
the Clerk of the Appellate Boards
(OCAB), 200 Constitution Ave. NW,
Washington, DC 20210–0001, or
otherwise presented to the Clerk.
(d) Electronic filings. (1) Except as
provided in paragraph (d)(2) of this
section, beginning on [DATE 45 DAYS
AFTER EFFECTIVE DATE OF FINAL
RULE], attorneys and lay representatives
must register for the Board’s electronic
case management system and file all
pleadings, exhibits, and other
documents with the Board through this
system (e-file). All e-filed documents
must be in Portable Document Format
(PDF). The Board prefers that pleadings
be filed in text-searchable PDF format.
Paper copies are not required unless
requested by the Board.
(2) Attorneys and lay representatives
may request an exemption (pursuant to
§ 802.219) for good cause shown. Such
a request must include a detailed
explanation why e-filing or acceptance
of e-service should not be required.
(3) Self-represented parties may file
pleadings, exhibits, and other
documents in electronic or
nonelectronic form in accordance with
paragraph (c) or (d) of this section.
(4) A document filed electronically is
a written paper for purposes of this Part.
(5) A person who is adversely affected
by a technical failure in connection with
filing or receipt of an electronic
document may seek appropriate relief
from the Board under § 802.219. If a
technical malfunction or other issue
prevents access to the Board’s case
management system for a protracted
period, the Board by special order may
provide appropriate relief pending
restoration of electronic access.
(e) Special rules for notices of appeal.
(1) Except as otherwise provided in this

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21:32 Jan 08, 2021

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section, a notice of appeal is considered
to have been filed only as of the date it
is received by the office of the Clerk of
the Board.
(2) A notice of appeal submitted to
any other agency or subdivision of the
Department of Labor or of the U.S.
Government or any state government,
and subsequently received by the office
of the Clerk of the Board, will be
considered filed with the Clerk of the
Board as of the date it was received by
the other governmental unit if the Board
finds in its discretion that it is in the
interest of justice to do so.
(3) If the notice of appeal is sent by
mail or commercial carrier and the
fixing of the date of delivery as the date
of filing would result in a loss or
impairment of appeal rights, it will be
considered to have been filed as of the
date of mailing or the date of delivery
to the commercial carrier.
(i) For notices sent by mail, the date
appearing on the U.S. Postal Service
postmark (when available and legible)
will be prima facie evidence of the date
of mailing. If there is no such postmark
or it is not legible, other evidence such
as, but not limited to, certified mail
receipts, certificates of service, and
affidavits, may be used to establish the
mailing date.
(ii) For notices sent by commercial
carrier, the date of delivery to the carrier
may be demonstrated by the carrier’s
receipt or tracking information.
(4) If the notice of appeal is
electronically filed through the Board’s
case management system, it is
considered received by the office of the
Clerk of the Board as of the date and
time recorded by the system under
§ 802.221(c).
■ 6. Add § 802.223 to subpart B to read
as follows:
§ 802.223

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Signed on this 14th day of December, 2020,
in Washington, DC
Eugene Scalia,
Secretary of Labor.
[FR Doc. 2020–28058 Filed 1–8–21; 8:45 am]
BILLING CODE 4510–HT–P

DEPARTMENT OF LABOR
Office of the Secretary
29 CFR Part 18
RIN 1290–AA36

Rules of Practice and Procedure for
Administrative Hearings Before the
Office of Administrative Law Judges
AGENCY: Office of the Secretary

Service requirements

This section prescribes rules and
procedures for serving pleadings
(including notices of appeal, petitions
for review, and response briefs,
additional briefs, and motions), exhibits,
and other documents including routine
correspondence on other parties and
representatives.
(a) A copy of any document filed with
the Board must be served on each party
and the Solicitor of Labor by the party
filing the document.
(b) Manner of service. (1)
Nonelectronic service may be completed
by:
(i) Personal delivery;
(ii) Mail; or
(iii) Commercial delivery.
(2) Electronic service may be
completed by:
(i) Electronic mail, if consented to in
writing by the person served; or

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(ii) Sending it to a user registered with
the Board’s electronic case management
system by filing via this system. A
person who registers to use the Board’s
case management system is deemed to
have consented to accept service
through the system.
(c) When service is effected. (1)
Service by personal delivery is effected
on the date the document is delivered
to the recipient.
(2) Service by mail or commercial
carrier is effected on mailing or delivery
to the carrier.
(3) Service by electronic means is
effected on sending.
(d) Date of receipt for electronic
documents. Unless the party making
service is notified that the document
was not received by the party served—
(1) A document filed via the Board’s
case management system is considered
received by registered users on the date
it is sent by the system; and
(2) A document served via electronic
mail is considered received by the
recipient on the date it is sent.

ACTION: Notice of proposed rulemaking;

request for comments.
SUMMARY: The Department of Labor

(DOL or Department) is proposing to
revise the Rules of Practice and
Procedure for Administrative Hearings
Before the Office of Administrative Law
Judges (OALJ rules of practice and
procedure) to provide for electronic
filing (e-filing) and electronic service (eservice) of papers. In addition to
technical amendments, the revised
regulations provide that e-filing will be
required for persons represented by
attorneys or non-attorney
representatives unless good cause is
shown justifying a different form of
filing. Self-represented persons will
have the option of e-filing or of filing
papers by conventional means. Finally,
the Department is proposing to revise

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/agency%3Adol%3A728bf23967bc358a. Public record. Not legal advice.