Federal Register / Vol. 86, No. 6 / Monday, January 11, 2021 / Rules and Regulations

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§ 1988.110 Decision and orders of the

Administrative Review Board.

DEPARTMENT OF LABOR

Benefits Review Board

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.

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.

(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.

person serving the pleading or other

document, setting forth the manner of

service, shall be proof of the service.

Signed on this 14th day of December, 2020,

in Washington, DC.

Eugene Scalia,

Secretary of Labor.

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20 CFR Part 802

RIN 1290–AA35

Rules of Practice and Procedure

AGENCY: Benefits Review Board,

Department of Labor.

ACTION: Direct final rule.

SUMMARY: The Department of Labor

takes this action to require electronic

filing (e-filing) 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: This direct final rule is effective

on February 25, 2021, unless the

Department receives a significant

adverse comment to this direct final rule

or the companion proposed rule by

February 10, 2021 that explains why the

direct final rule is inappropriate,

including challenges to the rule’s

underlying premise or approach, or why

the rule will be ineffective or

unacceptable without a change. If a

timely, significant adverse comment is

received, the Department will publish a

notification of withdrawal of the direct

final rule in the Federal Register before

the effective date. This notification may

withdraw the direct final rule in whole

or in part.

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

direct final 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 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 or the direct final rule, the

Department will consider providing the

comments and the direct final rule in

other formats upon request. For

assistance to review the comments or

obtain the direct final 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

rulemaking; Section III is a section-bysection summary and discussion of the

regulatory text; and Section IV covers

the administrative requirements for this

rulemaking.

I. Direct Final Rule Published

Concurrently With Companion

Proposed Rule

The Department is simultaneously

publishing with this direct final rule an

identical ‘‘proposed’’ 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 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 management system,

which will also automatically serve

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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 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 direct

final rule runs concurrently with the

comment period for the proposed rule.

Any comments received in response to

this direct final rule also will be

considered as comments regarding the

proposed 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 this 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).

II. 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 promulgating 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 acceptance of e-service

optional for self-represented 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

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is generally 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

Direct Final Rule

The Board removes and reserves 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 are

moved into these three consolidated

regulations and revised to accommodate

mandatory e-filing and automatic

acceptance of e-service for represented

parties. The Board is removing 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.

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Sec. 802.219

Orders

Motions to the Board;

The Board amends § 802.219(d) to

replace the current cross-reference to

§ 802.216, a regulation the Board

removes, with cross-references 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 amends § 802.221 in

several ways. 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.

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.

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, 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

Section 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.

Paragraph (a) contains the general

requirements that apply to all pleadings,

including captions, certificates of

service, signatures, and formatting.

Because documents in a case may need

to be served by more than one method,

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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.

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).

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.

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

automatic e-service for good cause

shown.

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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. 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.

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.

Sec. 802.223 Service Requirements

Section § 802.223 is a new rule

containing all service requirements.

Paragraph (a) requires, akin to current

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§ 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