Federal Register / Vol. 86, No. 6 / Monday, January 11, 2021 / Rules and Regulations 1795 

§ 1988.110 Decision and orders of the 

Administrative Review Board. 

* * * * * 

(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. 

* * * * * 

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. 

(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. 

Signed on this 14th day of December, 2020, 

in Washington, DC. 

Eugene Scalia, 

Secretary of Labor. 

[FR Doc. 2020–28055 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 

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 

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 


jbell on DSKJLSW7X2PROD with RULES
1796 Federal Register / Vol. 86, No. 6 / Monday, January 11, 2021 / Rules and Regulations 

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 

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, 

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 


jbell on DSKJLSW7X2PROD with RULES
Federal Register / Vol. 86, No. 6 / Monday, January 11, 2021 / Rules and Regulations 1797 

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. 

Sec. 802.219 Motions to the Board; 

Orders 

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. 

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, 

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. 


jbell on DSKJLSW7X2PROD with RULES
1798 Federal Register / Vol. 86, No. 6 / Monday, January 11, 2021 / Rules and Regulations 

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 

§ 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 

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 

reducing costs, of harmonizing rules, 

and of promoting flexibility. 

This direct final 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 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 has waived review. 

Regulatory Flexibility Act of 1980 

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 

The Department has determined that 

this direct final 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 

The Department has reviewed this 

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. 

Executive Order 13175, Consultation 

and Coordination With Indian Tribal 

Governments 

The Department has reviewed this 

rule in accordance with Executive Order 

13175 and has determined that it does 


jbell on DSKJLSW7X2PROD with RULES
Federal Register / Vol. 86, No. 6 / Monday, January 11, 2021 / Rules and Regulations 1799 

not have ‘‘tribal implications.’’ The 

direct final 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 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 

amends 20 CFR part 802 as follows: 

PART 802—RULES OF PRACTICE AND 

PROCEDURE 

■ 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 [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. 

(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. 

(4) Conform to standard letter 

dimensions (8.5 × 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 April 12, 2021, 

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 

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, 


jbell on DSKJLSW7X2PROD with RULES
1800 Federal Register / Vol. 86, No. 6 / Monday, January 11, 2021 / Rules and Regulations 

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 April 11, 2021 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 

(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. 

Signed on this 14th day of December, 2020, 

in Washington, DC. 

Eugene Scalia, 

Secretary of Labor. 

[FR Doc. 2020–28057 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, 

Department of Labor. 

ACTION: Direct final rule; request for 

comments 

SUMMARY: The Department of Labor 

(DOL or Department) is revising 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 (e-service) 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 by conventional means. 

Finally, the Department is revising 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: This direct final rule is effective 

on February 25, 2021 without further 

action unless the Department receives 

significant adverse comment to this rule 

by midnight Eastern Standard Time on 

February 10, 2021. If the Department 

receives significant adverse comment, it 

will publish a timely withdrawal of the 

final rule in the Federal Register. 

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 

direct final rule, 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 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. 

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 regulatory text; and Section IV 


jbell on DSKJLSW7X2PROD with RULES