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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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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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the OALJ rules of practice and

procedure to require advance notice to

the parties of the manner of a hearing

or prehearing conference, whether in

person in the same physical location, by

telephone, by videoconference, or by

other means.

DATES: Submit comments on or before

February 10, 2021.

ADDRESSES: You may read background

documents, submit comments, and read

comments received through the Federal

eRulemaking Portal at http://

www.regulations.gov. To locate this

notice of proposed rulemaking,

identified by Regulatory Identification

Number (RIN) 1290–AA36, search for

docket number DOL–2020–0015 or key

words such as ‘‘Office of Administrative

Law Judges’’ or ‘‘Rules of Practice and

Procedure for Administrative Hearings

Before the Office of Administrative Law

Judges.’’ Instructions for submitting

comments are found on the

www.regulations.gov website. Please be

advised that comments received 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,

and email addresses in comments. It is

the responsibility of the commenters to

safeguard their information.

If you need assistance to review the

comments or 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. Todd Smyth,

General Counsel, at (513) 684–3252.

FOR FURTHER INFORMATION CONTACT:

Todd Smyth, General Counsel, U.S.

Department of Labor, Office of

Administrative Law Judges, 800 K Street

NW, Washington, DC 20001–8002;

telephone (513) 684–3252. Individuals

with hearing or speech impairments

may access the telephone number above

by TTY by calling the toll-free Federal

Information Relay Service at (800) 877–

8339.

SUPPLEMENTARY INFORMATION: This

preamble has four sections: Section I

describes the process of rulemaking

using a direct final rule with a

companion proposed rule; Section II

provides background; Section III

provides a section-by-section analysis of

the proposed regulatory text; and

Section IV addresses the administrative

requirements for this rulemaking.

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I. Direct Final Rule Published

Concurrently With Companion

Proposed Rule

This notice of proposed rulemaking is

being published concurrently with a

direct final rule on the same subject. In

the ‘‘Rules and Regulations’’ section of

this issue of the Federal Register, the

Department approved these

amendments as a direct final rule

without a prior proposal because the

Department views such amendments as

a noncontroversial action and

anticipates no adverse comment. This

companion notice of proposed

rulemaking in the ‘‘Proposed Rules’’

section of this issue of the Federal

Register is published to expedite noticeand-comment rulemaking in the event

the Department receives significant

adverse comment and withdraws the

direct final rule.

The proposed and direct final rules

are substantively identical, and their

respective comment periods run

concurrently. The Department will treat

comments received on the companion

direct final rule as comments regarding

the proposed rule, and vice versa. Thus,

if the Department receives significant

adverse comment on either this

proposed rule or the companion direct

final rule, the Department will publish

a Federal Register notice withdrawing

the direct final rule and will proceed

with this proposed rule. If the

Department does not receive a timely

filed adverse comment, it will take no

further action on this proposed rule and

the direct final rule will become

effective with no further action on

February 25, 2021. For more

information about the Department’s

determination to publish this proposed

rule as a companion to the direct final

rule, and what constitutes a significant

adverse comment, refer to Section I of

the Supplementary Information portion

of the direct final rule.

The Department requests comments

on all issues related to this rule,

including economic or other regulatory

impacts of this rule on the regulated

community.

This proposed rule is not an E.O.

13771 regulatory action because it is not

significant under E.O. 12866.

II. Background

On May 19, 2015, the regulations

governing practice and procedure for

proceedings before the United States

Department of Labor, Office of

Administrative Law Judges (OALJ) were

significantly revised. 80 FR 28768 (May

19, 2015). At the time, the Department

acknowledged that implementation of a

dedicated electronic filing system and

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electronic service system for OALJ

adjudications would be beneficial, but

stated that because the OALJ did not

have a dedicated electronic filing and

service system, the rules of practice and

procedure necessarily focused on

traditional filing and service. 80 FR at

28772, 28775. The Department now has

an electronic filing and service system

(eFile/eServe system) for its

adjudicatory agencies. This proposed

revision to part 18 makes regulatory

changes to implement this new system.

When the Department revised the

OALJ rules of practice and procedure in

2015, it modeled those rules on the

Federal Rules of Civil Procedure (FRCP).

The Department noted that ‘‘[u]sing

language similar or identical to the

applicable FRCP gains the advantage of

the broad experience of the Federal

courts and the well-developed

precedent they have created to guide

litigants, judges, and reviewing

authorities within the Department on

procedure. Parties and judges obtain the

additional advantage of focusing

primarily on the substance of the

administrative disputes, spending less

time on the distraction of litigating

about procedure.’’ 77 FR 72142, 72144

(Dec. 4, 2012) (proposed rule).

Accordingly, the Department proposes

to amend part 18 to accommodate

electronic filing with a view toward

aligning part 18, to the extent

practicable, with the equivalent Federal

rules.

The current OALJ rule at 29 CFR

18.30 governs serving and filing of

pleadings and other papers, and was

modeled on FRCP 5. As noted above,

§ 18.30 did not address in detail

electronic filing or service because OALJ

did not have a dedicated e-filing system

in 2015. In 2018, FRCP 5 was amended

to revise the provisions for electronic

service based on the Federal judiciary’s

experience with its electronic filing

system, namely the Case Management/

Electronic Case Files (CM/ECF) system.

In brief, the changes to FRCP 5 deleted

the requirement of consent in writing to

electronic service where service is made

on a registered user through the court’s

electronic filing system; ended the

practice of leaving it to local rules to

require or allow electronic filing, and

instead established a uniform national

rule that makes electronic filing

mandatory for parties represented by

counsel (providing, however, for certain

exceptions); required that any local rule

requiring electronic filing by selfrepresented parties must allow

reasonable exceptions; established a

uniform national signature provision;

and provided that no certificate of

service is required when a paper is

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served by filing it with the court’s

electronic filing system.

Most of the Rule 5 revisions make

sense in regard to DOL OALJ

adjudications but with some

modifications to reflect administrative

practice and functional differences

between CM/ECF and the Department’s

eFile/eServe system. As explained in

more detail below, the regulatory

amendments propose to address the

following:

• Require persons represented by

attorney and non-attorney

representatives to use the Department’s

system to file all papers electronically

and to receive electronic service of

documents unless another form of filing

or service is allowed by the presiding

judge for good cause or is required by

standing order;

• give self-represented persons the

option to use conventional means of

filing, or to use the Department’s system

to file all papers electronically and to

receive electronic service of documents;

• provide that a filing made through

a person’s eFile/eServe system account

and authorized by that person, together

with that person’s name on a signature

block, constitutes that person’s

signature.

FRCP 5(d)(1)(B) was revised in 2018

to provide that ‘‘[n]o certificate of

service is required when a paper is

served by filing it with the court’s

electronic-filing system.’’ The

Department, however, has determined

that a certificate of service should

continue to be required for all filings

with OALJ given that (1) OALJ

proceedings have a significant number

of self-represented parties as

participants, and (2) especially early in

OALJ proceedings, the identification of

parties and their representatives—and

accurate contact information for such

persons and entities—is often fluid and

uncertain. Compare ‘‘Notice for

Comment on Proposed Amendments to

the Local Civil and Criminal Rules for

the Middle District of Louisiana’’ (Apr.

12, 2019) (proposing to revise court’s

local rule to provide that a certificate of

service is required for an initial

complaint filed with the court’s

electronic filing system, and the case

involves a party who is not an electronic

filer); General Order 2019–06 (M.D. La.

Nov. 12, 2019) (adopting amendment to

Local Civil Rule 5(e)(1) to provide that

‘‘[w]hen a document filed after the

initial complaint is served by filing it

with the Court’s electronic filing system,

no certificate of service is required

when all parties are electronic filers.’’).

The Department notes that, as with all

OALJ rules of practice and procedure,

the e-filing provisions will not apply if

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they are ‘‘inconsistent with a governing

statute, regulation, or executive

order. . . . If a specific Department of

Labor regulation governs a proceeding,

the provisions of that regulation

apply[.]’’ 20 CFR 18.10(a). For instance,

OALJ will continue to serve decisions

via certified mail where required by the

governing statute or regulation,

including on persons participating in

the Department’s eFile/eServe system.

Finally, as a consequence of the

COVID–19 national emergency in 2020,

courts and administrative adjudicators

across the Nation have dramatically

increased the use of telephonic and

video hearings, including the

Department of Labor’s OALJ. The

Department proposes to revise part 18 to

require the judge to give advance notice

of the manner of the hearing—whether

in person in the same physical location,

by telephone, by videoconference, or by

other means—and to provide parties an

opportunity to request a different

manner of hearing. See 5 U.S.C.

554(b)(1) (requiring timely notice of the

time, place, and nature of the hearing).

III. Section-by-Section Analysis

General Provisions

Sec. 18.11 Definitions.

A definition of ‘‘eFile/eServe system’’

is proposed to be added to the

definitions section of part 18 to clarify

that it means the Department of Labor’s

electronic filing and electronic service

system for adjudications.

A definition of ‘‘registered user’’ is

proposed to be added to the definitions

section of part 18 to clarify that it means

any person registered to file papers

using the Department’s eFile/eServe

system.

A definition of ‘‘standing order’’ is

proposed to be added to the definitions

section of Part 18. Amendments to

§ 18.30 follow the language of FRCP 5 to

permit exceptions, permissions, or

requirements relating to e-filing to be

established by ‘‘local rule.’’ OALJ is

organized differently than the judiciary,

and does not use local rules. However,

OALJ sometimes issues Administrative

Orders addressing court administration

applicable to all cases pending before

OALJ, or to all cases pending in a

district office. For example, in the past

when an OALJ district office was closed

for an extended period due to severe

weather conditions and the aftermath,

the Chief Judge or District Chief Judge

issued an Administrative Order

extending filing dates and permitting

alternative forms of filing (such as

email) until the office returned to

normal operations. Similarly, OALJ may

need to issue standing orders to address

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national or local conditions impacting

electronic filing.

Service, Format, and Timing of Filings

and Other Papers

Sec. 18.30

Service and Filing

The current § 18.30 is modeled on

FRCP 5. FRCP 5 was amended in 2018

in regard to electronic filing, and the

following proposed revisions to § 18.30

are modeled on the FRCP 5 amendments

to the extent practicable.

Paragraph (a)(2)(ii)(E) is proposed to

be revised to permit a registered user of

the Department’s eFile/eServe system to

serve filings on other registered users

through the Department’s system.

A new paragraph (a)(2)(iii) is

proposed to be added to provide that

represented persons required to file

electronically using the Department’s

eFile/eServe system, and selfrepresented persons who opt to file

electronically using that system, are

deemed to have consented to electronic

service of documents issued by the

judge and papers filed by other

registered users of the system.

The first sentence of paragraph (b)(1)

is proposed to be revised to harmonize

it to the current FRCP 5 in regard to the

time period for filing a paper.

Specifically, rather than the current

requirement to file a paper ‘‘within a

reasonable time after service with a

certificate of service,’’ the proposed

amended paragraph requires filing ‘‘no

later than a reasonable time after

service.’’ The FRCP 5 made this change

because ‘‘within’’ might be read as

barring filing before the paper is served.

‘‘No later than’’ was substituted in FRCP

5 to ensure that it is proper to file a

paper before it is served.

Paragraph (b)(2) is proposed to be

revised to clarify that a paper submitted

electronically in the Department’s eFile/

eServe system is filed when received by

that system.

The provisions of § 18.30(b)(3) are

proposed to be amended and

reorganized. New paragraph (b)(3)(i)(A)

is proposed to provide that a person

represented by an attorney or nonattorney representative is required to

file using the Department’s eFile/eServe

system following the instructions on the

system’s website, unless another form of

electronic or non-electronic filing is

allowed by the judge for good cause or

is allowed or required by standing

order. This aligns practice before OALJ

with current common practice before

State and Federal courts and agencies.

See 76 FR 56107 (Sept. 12, 2011) (Social

Security Administration final rule

announcing that it will require claimant

representatives to use SSA’s electronic

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services as they become available on

matters for which the representatives

request direct fee payment); 76 FR

63537 (Oct. 13, 2011) (U.S. Merit

Systems Protection Board pilot program

requiring agencies and attorneys

representing appellants to file pleadings

electronically for appeals in the

Washington Regional Office and Denver

Field Office); 84 FR 14554 (Apr. 10,

2019) (Occupational Safety and Health

Review Commission final rule adopting

mandatory electronic filing and service);

84 FR 37081 (July 31, 2019) (U.S. Patent

and Trademark Office final rule

amending its Rules of Practice in

Trademark Cases and Rules of Practice

in Filings to mandate electronic filing of

trademark applications and submissions

associated with trademark applications

and registrations). The Department

believes that, rather than imposing

undue costs or difficulties on

representatives, e-filing will reduce

costs and make filing with OALJ more

convenient and certain. See generally

http://www.azd.uscourts.gov/efiling/

advantages (outlining advantages of

electronic case filing). At present, a

representative filing via the

Department’s eFile/eServe system

would need a computer, access to email

and the internet, and a Portable

Document Format (PDF) application.

Such capacities are common, if not

essential, in legal practice today.

Moreover, because a representative is

allowed to establish good cause for

using other forms of filing, the amended

rule allows for reasonable exceptions to

an e-filing mandate. 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 Department time to update

its communications to parties about

how to file and allows parties who were

previously filing and serving documents

by mail to adjust to electronic filing.

Proposed new paragraph (b)(3)(i)(B)

provides that a self-represented person

may use the Department’s eFile/eServe

system to file papers. This is a more

permissive approach than found in

FRCP 5, which allows a self-represented

party to file electronically only by court

order or a local rule. The Department,

by contrast, encourages all persons

participating in OALJ hearings to use

the Department’s eFile/eServe system

for filings.

Proposed new paragraph (b)(3)(i)(C)

provides that a filing made through the

Department’s eFile/eServe system

containing the registered user’s name on

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a signature block constitutes that

person’s signature. This is consistent

with FRCP 5 and provides a simple,

practical solution to the signing of

papers filed electronically through the

Department’s system.

Proposed new paragraph (b)(3)(i)(D)

provides that a paper filed electronically

is a written paper for purposes of the

part 18 regulations. This provision is

consistent with FRCP 5(d)(3)(D).

Current § 18.30(b)(3) is proposed to be

moved to paragraph (b)(3)(ii), and

modified to state the permissible

methods of filing for those persons

excepted from mandatory use of the

Department’s eFile/eServe system. The

Department also proposes to provide in

paragraph (b)(3)(ii) the website address

at which current OALJ National and

District office addresses are listed—

specifically: https://www.dol.gov/

agencies/oalj/contacts.

Current § 18.30(b)(3)(i) requires prior

permission from the judge to file by

facsimile. With the availability of efiling, the concerns that prompted that

limitation on facsimile filing will be

largely mooted. For self-represented

persons who do not have ready access

to reliable internet services, filing by

facsimile may be a viable alternative.

Thus, the Department proposes to

eliminate the requirement of current

§ 18.30(b)(3)(i)(A) to receive prior

permission to file by facsimile. The

Department, however, proposes to retain

the current requirements for use of a

facsimile cover sheet and retention of

the original document and a

transmission record. These

requirements are proposed to be

consolidated and re-lettered as new

paragraphs (b)(3)(ii)(A) and (B).

Current § 18.30(b)(4) is proposed to be

deleted as it will be been mooted by the

new provisions in paragraph

18.30(b)(3)(i).

Sec. 18.32 Computing and Extending

Time

FRCP 6(a) governs the computation of

time periods under the FRCP, in any

local rule or court order, or in any

statute that does not specify a method

of computing time. In this regard, FRCP

6(a)(1)(C) provides that the ‘‘last day’’ of

a time period is included in the

calculation, and provides that the ‘‘last

day’’ ends at midnight in the court’s

time zone for electronic filing, and

when the clerk’s office is scheduled to

close for filing by other means. FRCP

6(a)(4)(A) and (B).

The current § 18.32 is modeled on

FRCP 6, but does not address electronic

filing. Thus, the Department proposes to

revise § 18.32(a)(2)(i) to provide that

unless a different time is set by a statute,

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executive order, regulation, or judge’s

order, for electronic filing, the ‘‘last

day’’ goes through 11:59:59 p.m. in the

time zone of the presiding judge’s

office—or, for cases not yet assigned to

an OALJ national or district office—in

the time zone of the office of the Chief

Judge of OALJ. Although standardizing

the time for electronic filing at midnight

Eastern Time on the last day of the filing

period was considered, because the

Department’s eFile/eServe system is

administered in Washington, DC, the

Department proposes to set the time

based on local time at the presiding

judge’s location in order not to reduce

hours available for e-filing for persons

outside the Eastern time zone. In regard

to filing by means other than electronic

filing, the Department proposes to revise

§ 18.32(a)(2)(ii) to follow FRCP

6(a)(4)(B) to state ‘‘when the clerk’s

office is scheduled to close.’’ OALJ

clerks’ offices close at 4:30 p.m. in the

time zone of the presiding judge’s office

or 4:30 p.m. in the time zone of the

office of the Chief Judge of OALJ for

cases not yet assigned to an OALJ

national or district office.

Sec. 18.34 Format of Papers Filed

The current § 18.34 addresses the

format of papers filed in hard copy. The

Department proposes to amend § 18.34

to require that papers filed

electronically be in a format that is

accepted by the Department’s eFile/

eServe system.

Prehearing Procedure

Current § 18.40(a) requires that the

judge provide at least 14 days’ notice of

the date, time, and place of the hearing.

In view of increased use of telephonic

and video hearings, the Department

proposes to amend § 18.40(a) to require

the judge to also provide 14 days’ notice

of the manner of hearing, whether in

person in the same physical location, by

telephone, by videoconference, or by

other means. The Department also

proposes to revise § 18.40(a) to refer to

the provisions of new § 18.30(a) in

regard to how the notice of hearing will

be sent to the parties. This revision is

necessary to harmonize § 18.40(a) with

the new eFile/eServe system.

The Department proposes to amend

§ 18.40(b) to require the judge to

consider the convenience and necessity

of the parties and witnesses in selecting

the manner of the hearing.

Current § 18.41 addresses changes to

the time, date, and place of the hearing.

The Department proposes to amend

§ 18.41(a), (b), and (c) to add the manner

of the hearing to the subjects that can be

changed by the judge or upon motion of

a party.

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Current § 18.44(b) provides that

prehearing conferences may be

conducted in person, by telephone, or

other means. The Department proposes

to amend § 18.44(b) to explicitly include

videoconferences as a permissible

means of conducting prehearing

conferences.

Hearing

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Sec. 18.82 Exhibits

By 2022, the National Archives and

Records Administration (NARA) will, to

the fullest extent possible, no longer

accept temporary or permanent records

from agencies in a non-electronic

format. See National Archives and

Records Administration, 2018–2022

Strategic Plan at 12 (Feb. 2018);

Delivering Government Solutions in the

21st Century, at 22, 100–102 (June 21,

2018). Accordingly, the Department

must move expeditiously toward

conducting administrative adjudications

using electronic records to the greatest

extent practical. Thus, the Department

proposes a new § 18.82(a) to provide

that those who are required or have

opted to file using the Department’s

eFile/eServe system must file

electronically any exhibits to be offered

into evidence at the hearing, unless the

exhibit is not susceptive to electronic

filing. An example of an exhibit not

susceptive to electronic filing is a threedimensional object. Current paragraphs

(a) through (g) are proposed to be relettered to paragraphs (b) through (h).

The Department proposes that newly

lettered paragraph (d) on exchange of

exhibits would be amended to clarify

that if a copy of a written exhibit being

offered into evidence was previously

filed electronically pursuant to

§ 18.82(a), a physical copy of the exhibit

need not be produced for the judge at

the hearing unless the judge directs

otherwise.

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 proposed

rule is not a significant regulatory action

under section 3(f) of Executive Order

12866 because the 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 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 waived review.

Executive Order 13175, Consultation

and Coordination With Indian Tribal

Governments

Regulatory Flexibility Act of 1980

PART 18—RULES OF PRACTICE AND

PROCEDURE FOR ADMINISTRATIVE

HEARINGS BEFORE THE OFFICE OF

ADMINISTRATIVE LAW JUDGES

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).

Paperwork Reduction Act (PRA)

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.

(PRA), 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).

IV. Administrative Requirements

Unfunded Mandates Reform Act of 1995

and Executive Order 13132, Federalism

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,

reducing costs, harmonizing rules, and

promoting flexibility.

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.

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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.’’

List of Subjects in 29 CFR Part 18

Administrative practice and

procedure, Labor.

For the reasons set out in the

Preamble, the Department of Labor

proposes to amend 29 CFR part 18 as set

forth below.

■ 1. The authority citations for part 18

continue to read as follows:

Authority: 5 U.S.C. 301; 5 U.S.C. 551–553;

5 U.S.C. 571 note; E.O. 12778; 57 FR 7292.

■ 2. Amend § 18.11 by adding

definitions in alphabetical order for

‘‘eFile/eServe system’’, ‘‘Registered

user’’, and ‘‘Standing order’’ to read as

follows:

§ 18.11

Definitions.

*

*

*

*

*

eFile/eServe system means the

Department of Labor’s electronic filing

and electronic service system for

adjudications.

*

*

*

*

*

Registered user means any person

registered to file papers using the

Department’s eFile/eServe system.

*

*

*

*

*

Standing order means an order issued

by the Chief Judge or District Chief

Judge addressing court administration

that applies to all cases pending before

OALJ or an OALJ district office, and

which is in force until changed or

withdrawn by a subsequent order.

■ 3. Amend § 18.30 by revising

paragraph (a)(2)(ii)(E), adding paragraph

(a)(2)(iii), revising the first sentence in

paragraph (b)(1) introductory text,

revising paragraphs (b)(2) and (3), and

removing paragraph (b)(4).

The revisions and addition read as

follows:

§ 18.30

Service and filing.

(a) * * *

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(2) * * *

(ii) * * *

(E) Sending it to a registered user by

filing it with the Department’s eFile/

eServe system or sending it by other

electronic means that the person

consented to in writing—in either of

which events service is complete upon

filing or sending, but is not effective if

the filer or sender learns that it did not

reach the person to be served; or

*

*

*

*

*

(iii) Consent to electronic service. Any

person required to file electronically

pursuant to § 18.30(b)(3)(i)(A) and any

person who opts to file electronically

pursuant to § 18.30(b)(3)(i)(B) is deemed

to have consented to electronic service

of documents issued by the judge and

papers filed by a registered user of the

Department’s eFile/eServe system.

*

*

*

*

*

(b) * * *

(1) * * * Any paper that is required

to be served must be filed no later than

a reasonable time after service with a

certificate of service. * * *

(2) Filing: when made—in general. A

paper submitted electronically in the

Department’s eFile/eServe system is

filed when received by the system.

Papers submitted by other means are

filed when received by the docket clerk

or by the judge during a hearing.

(3) Filing: how made—(i) Electronic

filing and signing—(A) By a represented

person—generally required; exceptions.

Beginning on [DATE 45 DAYS AFTER

EFFECTIVE DATE OF FINAL RULE], a

person represented by an attorney or

non-attorney representative must file

using the Department’s eFile/eServe

system following the instructions on the

system’s website, unless another form of

electronic or non-electronic filing is

allowed by the judge for good cause or

is allowed or required by standing

order.

(B) By a self-represented person—

when allowed or required. A person not

represented by an attorney or nonattorney representative may file using

the Department’s eFile/eServe system

following the instructions on the

system’s website.

(C) Signing. A filing made through a

person’s eFile/eServe system account

and authorized by that person, together

with that person’s name on a signature

block, constitutes the person’s signature.

(D) Same as a written paper. A paper

filed electronically is a written paper for

purposes of these rules.

(ii) Other forms of filing. Persons who

are excepted from e-filing under

§ 18.30(b)(3)(i)(A), or who have opted

not to use e-filing as permitted by

§ 18.30(b)(3)(i)(B), may file papers by

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mail, courier service, hand delivery,

facsimile, or alternative means of

electronic delivery. The mailing

addresses for OALJ’s National and

District offices are found at https://

www.dol.gov/agencies/oalj/contacts.

(A) Filing by facsimile—cover sheet.

Filings by facsimile must include a

cover sheet that identifies the sender,

the total number of pages transmitted,

and the matter’s docket number and the

document’s title.

(B) Filing by facsimile—retention of

the original document. The original

signed document will not be substituted

into the record unless required by law

or the judge. Any party filing a facsimile

of a document must maintain the

original document and transmission

record until the case is final. A

transmission record is a paper printed

by the transmitting facsimile machine

that states the telephone number of the

receiving machine, the number of pages

sent, the transmission time, and an

indication that no error in transmission

occurred. Upon a party’s request or

judge’s order, the filing party must

provide for review the original

transmitted document from which the

facsimile was produced.

■ 4. Amend § 18.32 by revising

paragraph (a)(2) to read as follows:

§ 18.32

Computing and extending time.

(a) * * *

(2) ‘‘Last day’’ defined. Unless a

different time is set by a statute,

regulation, executive order, or judge’s

order, the ‘‘last day’’ ends:

(i) For electronic filing, at 11:59:59

p.m. in the time zone of the presiding

judge’s office—or, for cases not yet

assigned to an OALJ national or district

office—at 11:59:59 p.m. in the time zone

of the office of the Chief Judge of OALJ;

and

(ii) For filing by other means, when

the clerk’s office is scheduled to close.

*

*

*

*

*

■ 5. Amend § 18.34 by revising the

introductory text to read as follows:

§ 18.34

Format of papers filed.

Papers submitted electronically in the

Department’s eFile/eServe system must

be in a format accepted by the

Department’s eFile/eServe system.

Papers not filed electronically must be

printed in black ink on 8.5 x 11-inch

opaque white paper. All papers must be

legible, and begin with a caption that

includes:

*

*

*

*

*

■ 6. Revise § 18.40 to read as follows:

§ 18.40

Notice of hearing.

(a) In general. Except when the

hearing is scheduled by calendar call,

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the judge must, at least 14 days before

the hearing, notify the parties of the

hearing’s date, time, and place, and of

the manner of the hearing, whether in

person in the same physical location, by

telephone, by videoconference, or by

other means. The notice is sent by the

means provided for in § 18.30(a), unless

the judge determines that circumstances

require service by certified mail or other

means. The parties may agree to waive

the 14-day notice for the hearing.

(b) Date, time, place, and manner.

The judge must consider the

convenience and necessity of the parties

and the witnesses in selecting the date,

time, place, and manner of the hearing.

■ 7. Amend § 18.41 to revise the section

title and paragraphs (a), (b) introductory

text, and (b)(2) as follows:

§ 18.41 Continuances and changes in

place or manner of hearing.

(a) By the judge. Upon reasonable

notice to the parties, the judge may

change the time, date, place, and

manner of the hearing.

(b) By a party’s motion. A request by

a party to continue a hearing or to

change the place or manner of the

hearing must be made by motion.

(1) * * *

(2) Change in place or manner of

hearing. A motion to change the place

or manner of a hearing must be filed

promptly.

■ 8. Amend § 18.44 by revising

paragraph (b) to read as follows:

§ 18.44

Prehearing conference.

*

*

*

*

*

(b) Scheduling. Prehearing

conferences may be conducted in

person in the same physical location, by

telephone, by videoconference, or by

other means after reasonable notice of

time, place, and manner of conference

has been given.

*

*

*

*

*

■ 9. Revise § 18.82 to read as follows:

§ 18.82

Exhibits.

(a) Filing of exhibits to be offered into

evidence. Persons who are required to

file electronically pursuant to

§ 18.30(b)(3)(i)(A)—or who have opted

to use e-filing as permitted by

§ 18.30(b)(3)(i)(B)—must electronically

file in the Department’s eFile/eServe

system any exhibits to be offered in

evidence at a hearing, unless that

exhibit is not susceptive to filing in

electronic form.

(b) Identification. All exhibits offered

in evidence must be marked with a

designation identifying the party

offering the exhibit and must be

numbered and paginated as the judge

orders.

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(c) Electronic data. By order, the judge

may prescribe the format for the

submission of data that is in electronic

form.

(d) Exchange of exhibits. When

written exhibits are offered in evidence,

one copy must be furnished to the judge

and to each of the parties. If the exhibit

being offered was previously filed with

the judge, either electronically pursuant

to paragraph (a) of this section or

otherwise, and furnished to the other

parties prior to hearing, the exhibit need

not be produced at the hearing unless

the judge directs otherwise. If the

exhibit being offered at the hearing was

not furnished to each party or filed with

the judge prior to the hearing, a paper

copy of that exhibit for the judge and

each party must be produced at the

hearing unless the judge directs

otherwise. If the judge does not fix a

date for the exchange of exhibits, the

parties must exchange copies of exhibits

at the earliest practicable time before the

hearing begins.

(e) Authenticity. The authenticity of a

document identified in a pre-hearing

exhibit list is admitted unless a party

files a written objection to authenticity

at least seven days before the hearing.

The judge may permit a party to

challenge a document’s authenticity if

the party establishes good cause for its

failure to file a timely written objection.

(f) Substitution of copies for original

exhibits. The judge may permit a party

to withdraw original documents offered

in evidence and substitute accurate

copies of the originals.

(g) Designation of parts of documents.

When only a portion of a document

contains relevant matter, the offering

party must exclude the irrelevant parts

to the greatest extent practicable.

(h) Records in other proceedings.

Portions of the record of other

administrative proceedings, civil

actions, or criminal prosecutions may be

received in evidence, when the offering

party shows the copies are accurate.

Signed on this 14th day of December, 2020,

in Washington, DC.

Eugene Scalia,

Secretary of Labor.

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ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 63

[EPA–HQ–OAR–2020–0572; FRL–10017–90–

OAR]

RIN 2060–AU57

National Emission Standards for

Hazardous Air Pollutants: Flexible

Polyurethane Foam Fabrication

Operations Residual Risk and

Technology Review and Flexible

Polyurethane Foam Production and

Fabrication Area Source Technology

Review

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: This action presents the

proposed results of the U.S.

Environmental Protection Agency’s

(EPA’s) residual risk and technology

review (RTR) required under the Clean

Air Act (CAA) for the National Emission

Standards for Hazardous Air Pollutants

(NESHAP) for major source Flexible

Polyurethane Foam Fabrication

Operations, initially promulgated in

2003. Pursuant to the CAA, this action

also presents the proposed results of the

technology review for the NESHAP for

two area source categories, Flexible

Polyurethane Foam Production and

Flexible Polyurethane Foam

Fabrication, which are combined in one

subpart initially promulgated in 2007.

In this action, the EPA is proposing to

establish a numeric emission limit for

one major source subcategory; remove

exemptions for periods of startup,

shutdown, and malfunction (SSM) and

specify that the emissions standards

apply at all times; require periodic

performance tests; and require

electronic reporting of performance test

results and compliance reports.

Implementation of these proposed rules

is not expected to result in significant

changes to the hazardous air pollutant

(HAP) emissions from affected facilities

in these three source categories or to

human health impacts or environmental

impacts associated with those

emissions. However, this action, if

finalized, would result in improved

monitoring, compliance, and

implementation of the existing

standards and codify existing industry

practices to prevent backsliding.

DATES: Comments. Comments must be

received on or before February 25, 2021.

Under the Paperwork Reduction Act

(PRA), comments on the information

collection provisions are best assured of

consideration if the Office of

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Management and Budget (OMB)

receives a copy of your comments on or

before February 10, 2021.

Public hearing: If anyone contacts us

requesting a public hearing on or before

January 19, 2021, we will hold a virtual

public hearing. See SUPPLEMENTARY

INFORMATION for information on

requesting and registering for a public

hearing.

ADDRESSES: You may send comments,

identified by Docket ID No. EPA–HQ–

OAR–2020–0572 by any of the following

methods:

• Federal eRulemaking Portal:

https://www.regulations.gov/ (our

preferred method). Follow the online

instructions for submitting comments.

• Email: a-and-r-docket@epa.gov.

Include Docket ID No. EPA–HQ–OAR–

2020–0572- in the subject line of the

message.

• Fax: (202) 566–9744. Attention

Docket ID No. EPA–HQ–OAR–2020–

0572.

• Mail: U.S. Environmental

Protection Agency, EPA Docket Center,

Docket ID No. EPA–HQ–OAR–2020–

0572 EPA Mail Code 28221T, 1200

Pennsylvania Avenue NW, Washington,

DC 20460.

• Hand/Courier Delivery: EPA Docket

Center, WJC West Building, Room 3334,

1301 Constitution Avenue NW,

Washington, DC 20004. The Docket

Center’s hours of operation are 8:30

a.m.–4:30 p.m., Monday–Friday (except

federal holidays).

Instructions: All submissions received

must include the Docket ID No. for this

rulemaking. Comments received may be

posted without change to https://

www.regulations.gov/, including any

personal information provided. For

detailed instructions on sending

comments and additional information

on the rulemaking process, see the

SUPPLEMENTARY INFORMATION section of

this document. Out of an abundance of

caution for members of the public and

our staff, the EPA Docket Center and

Reading Room are closed to the public,

with limited exceptions, to reduce the

risk of transmitting COVID–19. Our

Docket Center staff will continue to

provide remote customer service via

email, phone, and webform. We

encourage the public to submit

comments via https://

www.regulations.gov/ or email, as there

may be a delay in processing mail and

faxes. Hand deliveries and couriers may

be received by scheduled appointment

only. For further information on EPA

Docket Center services and the current

status, please visit us online at https://

www.epa.gov/dockets.

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