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 


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addresses the administrative 

requirements for this rulemaking. 

I. Direct Final Rule Published 

Concurrently With Companion 

Proposed Rule 

In direct final rulemaking, an agency 

publishes a direct final rule in the 

Federal Register with a statement that 

the rule will go into effect unless the 

agency receives significant adverse 

comment within a specified period. The 

agency concurrently publishes an 

identical proposed rule. If the agency 

receives no significant adverse comment 

in response to the direct final rule, the 

agency publishes a Federal Register 

notice withdrawing the proposed rule, 

and the final 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. An agency typically uses 

direct final rulemaking when it 

anticipates the rule will be noncontroversial. 

The Department has determined that 

this rule, which revises the OALJ rules 

of practice and procedure to 

accommodate electronic filing by 

persons appearing before OALJ and 

electronic service of ALJ-issued 

documents, is exempt from the notice 

and comment requirements under 5 

U.S.C. 553(b) as a rule of agency 

practice and procedure. Regardless, the 

agency has decided to allow for public 

input, so this rule is suitable for direct 

final rulemaking. The rule makes 

technical changes to OALJ’s procedural 

rules, and—consistent with similar 

court and agency e-filing systems— 

provides that persons represented by 

attorney and non-attorney 

representatives will be required to e-file 

unless good cause is shown to be 

exempted, and that self-represented 

persons will have the option of e-filing 

or using conventional filing methods. 

Thus, the Department does not expect to 

receive significant adverse comment on 

this rule. 

The Department is also publishing a 

companion notice of proposed 

rulemaking in the ‘‘Proposed Rules’’ 

section of today’s Federal Register to 

expedite notice-and-comment 

rulemaking in the event the Department 

receives significant adverse comment 

and withdraws this 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 

proposed rule as comments regarding 

the direct final rule and vice versa. 

Thus, if the Department receives 

significant adverse comment on either 

this direct final rule or the companion 

proposed rule, the Department will 

publish a Federal Register notice 

withdrawing this direct final rule and 

will proceed with the proposed rule. If 

no significant adverse comment is 

received, this direct final rule will 

become effective. 

For purposes of this direct final rule, 

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 this direct final 

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. 

This 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 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 revises 

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 

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 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; 


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• 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 will 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 is revising 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 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 

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 

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 revisions to § 18.30 are 

modeled on the FRCP 5 amendments to 

the extent practicable. 

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

provide that represented persons 

required to file electronically using the 

Department’s eFile/eServe system, and 

self-represented 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 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 

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 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) have 

been amended and reorganized. New 

paragraph (b)(3)(i)(A) provides that a 

person represented by an attorney or 

non-attorney 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 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 


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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. 

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. 

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. 

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) has been 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. Paragraph (b)(3)(ii) 

is also revised to state 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 will eliminate the 

requirement of current 

§ 18.30(b)(3)(i)(A) to receive prior 

permission to file by facsimile. The 

Department, however, will retain the 

current requirements for use of a 

facsimile cover sheet and retention of 

the original document and a 

transmission record. These 

requirements are consolidated and relettered as new paragraphs (b)(3)(ii)(A) 

and (B). 

Current § 18.30(b)(4) is deleted as it 

has 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 revises 

§ 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 opted 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 revises § 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. New 

§ 18.34 requires 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, § 18.40(a) is revised 

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. 

Paragraph 18.40(a) is also revised 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 amends § 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 amends § 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. 

Current § 18.44(b) provides that 

prehearing conferences may be 

conducted in person, by telephone, or 

other means. New § 18.44(b) explicitly 

includes 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, new § 18.82(a) 

provides 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 


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exhibit not susceptive to electronic 

filing is a three-dimensional object. 

Current paragraphs (a) through (g) are 

re-lettered to paragraphs (b) through (h). 

Newly lettered paragraph (d) on 

exchange of exhibits is 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 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 (PRA) 

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. 

(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 

direct final 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 

direct final rule in accordance with 

Executive Order 13175 and has 

determined that it does 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 29 CFR Part 18 

Administrative practice and 

procedure, Labor. 

For the reasons set out in the 

Preamble, the Department of Labor 

amends 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) * * * 

(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 paragraph (b)(3)(i)(A) of this 

section and any person who opts to file 

electronically pursuant to paragraph 

(b)(3)(i)(B) of this section 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 


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Federal Register / Vol. 86, No. 6 / Monday, January 11, 2021 / Rules and Regulations 1805 

person—generally required; exceptions. 

Beginning on April 12, 2021, a person 

represented by an attorney or nonattorney 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 

paragraph (b)(3)(i)(A) of this section, or 

who have opted not to use e-filing as 

permitted by paragraph (b)(3)(i)(B) of 

this section, 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 by revising the 

section heading and paragraphs (a), (b) 

introductory text, and (b)(2) to read 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. 

* * * * * 

(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. 

(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 


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1806 Federal Register / Vol. 86, No. 6 / Monday, January 11, 2021 / Rules and Regulations 

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. 2020–28049 Filed 1–8–21; 8:45 am] 

BILLING CODE P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 117 

[Docket Number USCG–2020–0137] 

RIN 1625–AA09 

Drawbridge Operation Regulation; 

Middle River, near Discovery Bay, CA 

AGENCY: Coast Guard, Department of 

Homeland Security (DHS). 

ACTION: Final rule. 

SUMMARY: The Coast Guard is changing 

the operating schedule that governs the 

Woodward Island Bridge across Middle 

River, mile 11.8, near Discovery Bay, 

CA. The proposed operating schedule 

change will require the removable span 

to open for vessels engaged in 

emergency levee repairs. 

DATES: This rule is effective February 

10, 2021. 

ADDRESSES: To view documents 

mentioned in this preamble as being 

available in the docket, go to https://

www.regulations.gov, type USCG–2020– 

0137 in the ‘‘SEARCH’’ box and click 

‘‘SEARCH.’’ Click on Open Docket 

Folder on the line associated with this 

rule. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this rule, call or 

email Carl T. Hausner, Chief, Bridge 

Section, Eleventh Coast Guard District; 

telephone 510–437–3516, email 

Carl.T.Hausner@uscg.mil. 

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations 

CFR Code of Federal Regulations 

DHS Department of Homeland Security 

FR Federal Register 

OMB Office of Management and Budget 

NPRM Notice of proposed rulemaking 

§ Section 

U.S.C. United States Code 

II. Background Information and 

Regulatory History 

On September 20, 2017, the U.S. 

Coast Guard issued San Joaquin County 

a permit to construct the new removable 

span Woodward Island Bridge across 

Middle River, mile 11.8, near Discovery 

Bay, CA. Construction was completed 

on January 23, 2020. The new bridge 

provides 30 feet of vertical clearance in 

the closed-to-navigation position, 

unlimited vertical clearance when the 

span is removed, and 83 feet of 

horizontal clearance, dolphin to 

dolphin, measured normal to the 

centerline of the channel. The opening 

requirement for the newly constructed 

Woodward Island Bridge over Middle 

River is currently governed by 33 CFR 

117.5, which requires prompt and full 

opening for the passage of vessels when 

a request or signal to open is given. 

A three-year navigational analysis of 

that portion of Middle River was 

conducted between 2000 and 2003. The 

results of the analysis indicated the 

newly constructed bridge would meet 

the reasonable needs of recreational 

vessels that normally use the waterway. 

Vessels which cannot transit the bridge 

in the closed position have an alternate 

route to reach the opposite side of the 

bridge. 

The Woodward Island Bridge was 

designed with a removable span to 

allow emergency vessels engaged in 

levee repair to request an opening when 

necessary. Since most recreational 

vessels can transit the new Woodward 

Island Bridge and there is an alternate 

route around the bridge, there is no 

need for an ‘‘open on demand’’ 

regulation as prescribed in 33 CFR 

117.5. 

On July 23, 2020, the Coast Guard 

published a notice of proposed 

rulemaking (NPRM) entitled 

‘‘Drawbridge Operation Regulation; 

Middle River, near Discovery Bay, CA’’ 

(85 FR 44494). Further, on July 27, 2020, 

Commander (dpw), Eleventh Coast 

Guard District mailed notification of the 

NPRM to 48 interested parties that have 

known to use Middle River and 

published a notification of the NPRM in 

the Local Notice to Mariners, No. 30/20. 

The Coast Guard received one comment 

which was unrelated to the proposed 

rule. 

III. Legal Authority and Need for Rule 

The Coast Guard is issuing this rule 

under the authority at 33 U.S.C. 499. 

The Woodward Island Bridge across 

Middle River, mile 11.8, near Discovery 

Bay, CA is a removable span bridge 

which provides 30 feet of vertical 

clearance in the closed-to-navigation 

position, unlimited vertical clearance 

when the span is removed, and 83 feet 

of horizontal clearance, dolphin to 

dolphin, measured normal to the 

centerline of the channel. Most 

recreational vessels can transit the 

bridge in the closed-to-navigation 

position. Vessels that cannot transit the 

bridge while closed can take an 

alternate route to reach either side of the 

bridge. 

This final rule will ensure that if 

emergency levee repairs are needed 

downstream of the bridge, tug and crane 

barges will be able to request an opening 

to allow passage. 

IV. Discussion of Comments, Changes 

and the Final Rule 

As noted above, we received one 

comment on our NPRM published on 

July 23, 2020 that was unrelated to the 

proposed rule. With the exception of a 

non-substantive correction of a 

typographical error in § 117.171(b), 

there are no changes in the regulatory 

text of this rule from the NPRM. The 

final rule would require the removable 

span to open for vessels engaged in 

emergency levee repairs. This final rule 

would meet the reasonable needs of 

navigation. 

V. Regulatory Analyses 

We developed this rule after 

considering numerous statutes and 

Executive orders related to rulemaking. 

Below we summarize our analyses 

based on a number of these statutes and 

Executive orders, and we discuss First 

Amendment rights of protesters. 

A. Regulatory Planning and 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. 

Executive Order 13771 directs agencies 

to control regulatory costs through a 

budgeting process. This rule has not 

been designated a ‘‘significant 

regulatory action,’’ under Executive 

Order 12866. Accordingly, it has not 

been reviewed by the Office of 

Management and Budget (OMB) and 

pursuant to OMB guidance it is exempt 

from the requirements of Executive 

Order 13771. 


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