1862 Federal Register / Vol. 86, No. 6 / Monday, January 11, 2021 / Proposed Rules 

(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 

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 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. 2020–28058 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 

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 


jbell on DSKJLSW7X2PROD with PROPOSALS
Federal Register / Vol. 86, No. 6 / Monday, January 11, 2021 / Proposed Rules 1863 

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. 

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 

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 


jbell on DSKJLSW7X2PROD with PROPOSALS
1864 Federal Register / Vol. 86, No. 6 / Monday, January 11, 2021 / Proposed Rules 

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 

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 

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 


jbell on DSKJLSW7X2PROD with PROPOSALS
Federal Register / Vol. 86, No. 6 / Monday, January 11, 2021 / Proposed Rules 1865 

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 

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, 

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. 


jbell on DSKJLSW7X2PROD with PROPOSALS
1866 Federal Register / Vol. 86, No. 6 / Monday, January 11, 2021 / Proposed Rules 

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 

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. 

IV. Administrative Requirements 

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. 

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. 

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 (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). 

Unfunded Mandates Reform Act of 1995 

and Executive Order 13132, Federalism 

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. 

Executive Order 13175, Consultation 

and Coordination With Indian Tribal 

Governments 

The Department has reviewed this 

proposed rule in accordance with 

Executive Order 13175 and has 

determined that it does not have ‘‘tribal 

implications.’’ The proposed rule does 

not ‘‘have substantial direct effects on 

one or more Indian tribes, on the 

relationship between the Federal 

government and Indian tribes, or on the 

distribution of power and 

responsibilities between the Federal 

government and Indian tribes.’’ 

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. 

PART 18—RULES OF PRACTICE AND 

PROCEDURE FOR ADMINISTRATIVE 

HEARINGS BEFORE THE OFFICE OF 

ADMINISTRATIVE LAW JUDGES 

■ 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) * * * 


jbell on DSKJLSW7X2PROD with PROPOSALS
Federal Register / Vol. 86, No. 6 / Monday, January 11, 2021 / Proposed Rules 1867 

(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 

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, 

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. 


jbell on DSKJLSW7X2PROD with PROPOSALS
1868 Federal Register / Vol. 86, No. 6 / Monday, January 11, 2021 / Proposed Rules 

(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. 

[FR Doc. 2020–28050 Filed 1–8–21; 8:45 am] 

BILLING CODE 4510–20–P 

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 

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. 


jbell on DSKJLSW7X2PROD with PROPOSALS