Federal Register / Vol. 86, No. 6 / Monday, January 11, 2021 / Proposed Rules 1857 

parties of the right to object to the 

findings and/or order and to request a 

hearing, and of the right of the 

respondent to request an award of 

attorney fees not exceeding $1,000 from 

the ALJ, regardless of whether the 

respondent has filed objections, if the 

respondent alleges that the complaint 

was frivolous or brought in bad faith. 

The findings and, where appropriate, 

the preliminary order also will give the 

address of the Chief Administrative Law 

Judge, U.S. Department of Labor, or 

appropriate information regarding filing 

objections electronically with the Office 

of Administrative Law Judges. At the 

same time, the Assistant Secretary will 

file with the Chief Administrative Law 

Judge a copy of the original complaint 

and a copy of the findings and/or order. 

* * * * * 

■ 141. In § 1988.106, revise paragraph 

(a) to read as follows: 

§ 1988.106 Objections to the findings and 

the preliminary order and requests for a 

hearing. 

(a) Any party who desires review, 

including judicial review, of the 

findings and/or preliminary order, or a 

respondent alleging that the complaint 

was frivolous or brought in bad faith 

who seeks an award of attorney fees 

under MAP–21, must file any objections 

and/or a request for a hearing on the 

record within 30 days of receipt of the 

findings and preliminary order pursuant 

to § 1988.105. The objections, request 

for a hearing, and/or request for attorney 

fees must be in writing and state 

whether the objections are to the 

findings, the preliminary order, and/or 

whether there should be an award of 

attorney fees. The date of the postmark, 

facsimile transmittal, or electronic 

transmittal is considered the date of 

filing; if the objection is filed in person, 

by hand-delivery or other means, the 

objection is filed upon receipt. 

Objections must be filed with the Chief 

Administrative Law Judge, U.S. 

Department of Labor, in accordance 

with 29 CFR part 18, and copies of the 

objections must be served at the same 

time on the other parties of record, the 

OSHA official who issued the findings 

and order, the Assistant Secretary, and 

the Associate Solicitor, Division of Fair 

Labor Standards, U.S. Department of 

Labor. 

* * * * * 

■ 142. In § 1988.107, revise paragraph 

(b) to read as follows: 

§ 1988.107 Hearings. 

* * * * * 

(b) Upon receipt of an objection and 

request for hearing, the Chief 

Administrative Law Judge will promptly 

assign the case to an ALJ who will 

notify the parties of the day, time, and 

place of hearing. The hearing is to 

commence expeditiously, except upon a 

showing of good cause or unless 

otherwise agreed to by the parties. 

Hearings will be conducted de novo on 

the record. ALJs have broad discretion 

to limit discovery in order to expedite 

the hearing. 

* * * * * 

■ 143. In § 1988.110, revise paragraph 

(c) to read as follows: 

§ 1988.110 Decision and orders of the 

Administrative Review Board. 

* * * * * 

(c) The decision of the ARB will be 

issued within 120 days of the 

conclusion of the hearing, which will be 

deemed to be 14 days after the decision 

of the ALJ, unless a motion for 

reconsideration has been filed with the 

ALJ in the interim. In such case, the 

conclusion of the hearing is the date the 

motion for reconsideration is ruled 

upon or 14 days after a new decision is 

issued. The ARB’s decision will be 

served upon all parties and the Chief 

Administrative Law Judge. The decision 

will also be served on the Assistant 

Secretary and on the Associate Solicitor, 

Division of Fair Labor Standards, U.S. 

Department of Labor, even if the 

Assistant Secretary is not a party. 

* * * * * 

Title 41: Public Contracts and Property 

Management 

PART 60—30 RULES OF PRACTICE 

FOR ADMINISTRATIVE PROCEEDINGS 

TO ENFORCE EQUAL OPPORTUNITY 

UNDER EXECUTIVE ORDER 11246 

■ 144. The authority citation for part 

60–30 continues to read as follows: 

Authority: Executive Order 11246, as 

amended, 30 FR 12319, 32 FR 14303, as 

amended by E.O. 12086; 29 U.S.C. 793, as 

amended, and 38 U.S.C. 4212, as amended. 

■ 145. In § 60–30.4, revise paragraphs 

(b) and (c) to read as follows: 

§ 60–30.4 Form, filing, service of pleadings 

and papers. 

* * * * * 

(b) Service. Service upon any party 

shall be made by the party filing the 

pleading or document in accordance 

with 29 CFR part 26. When a party is 

represented by an attorney, the service 

shall be upon the attorney. 

(c) Proof of service. A certificate of the 

person serving the pleading or other 

document, setting forth the manner of 

service, shall be proof of the service. 

Signed on this 14th day of December, 2020, 

in Washington, DC. 

Eugene Scalia, 

Secretary of Labor. 

[FR Doc. 2020–28056 Filed 1–8–21; 8:45 am] 

BILLING CODE 4510–HW–P 

DEPARTMENT OF LABOR 

Benefits Review Board 

20 CFR Part 802 

RIN 1290–AA35 

Rules of Practice and Procedure 

AGENCY: Benefits Review Board, 

Department of Labor. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Department of Labor is 

issuing this Notice of Proposed 

Rulemaking to seek public comments on 

a proposal to require electronic filing (efiling) and make acceptance of 

electronic service (e-service) automatic 

by attorneys and lay representatives 

representing parties in proceedings 

before the Benefits Review Board 

(Board), and to provide an option for 

self-represented parties to utilize these 

electronic capabilities. 

DATES: The Department invites 

interested persons to submit comments 

on the proposed rules of practice and 

procedure. To ensure consideration, 

comments must be in writing and must 

be received by February 10, 2021. 

ADDRESSES: You may submit comments, 

identified by Regulatory Identification 

Number (RIN) 1290–AA35, only by the 

following method: Electronic 

Comments. Submit comments through 

the Federal eRulemaking Portal http://

www.regulations.gov. To locate the 

proposed rule, use docket number DOL– 

2020–0013 or key words such as 

‘‘Administrative practice and 

procedure,’’ ‘‘Black lung benefits,’’ 

‘‘Longshore and harbor workers,’’ or 

‘‘Workers’ compensation.’’ Follow the 

instructions for submitting comments. 

All comments must be received by 11:59 

p.m. on the date indicated for 

consideration in this rulemaking. 

Instructions: All submissions received 

must include the agency name and 

docket number or RIN for this 

rulemaking. All comments received 

generally will be posted without change 

to http://www.regulations.gov, including 

any personal information provided. 

Therefore, the Department recommends 

that commenters safeguard their 

personal information by not including 

social security numbers, personal 

addresses, telephone numbers, or email 

addresses in comments. It is the 


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responsibility of the commenter to 

safeguard personal information. 

If you need assistance to review the 

comments and 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. Thomas Shepherd, 

Clerk of the Appellate Boards, at (202) 

693–6319. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Thomas Shepherd, Clerk of the 

Appellate Boards, at (202) 693–6319 or 

Shepherd.Thomas@dol.gov. Individuals 

with hearing or speech impairments 

may access this telephone number by 

TTY by calling the toll-free Federal 

Information Relay Service at (800) 877– 

8339. 

SUPPLEMENTARY INFORMATION: This 

preamble is divided into four sections: 

Section I describes the process of 

rulemaking using a direct final rule with 

a companion proposed rule; Section II 

provides general background 

information on the development of the 

proposed rulemaking; Section III is a 

section-by-section summary and 

discussion of the proposed regulatory 

text; and Section IV covers the 

administrative requirements for this 

proposed rulemaking. 

I. Proposed Rule Published 

Concurrently With Companion Direct 

Final Rule 

The Department is simultaneously 

publishing with this proposed rule an 

identical ‘‘direct final’’ rule elsewhere 

in this issue of the Federal Register. In 

direct final rulemaking, an agency 

publishes a final rule with a statement 

that the rule will go into effect unless 

the agency receives significant adverse 

comment within a specified period. If 

the agency receives no significant 

adverse comment in response to the 

direct final rule, the rule goes into 

effect. If the agency receives significant 

adverse comment, the agency withdraws 

the direct final rule and treats such 

comment as submissions on the 

proposed rule. The proposed rule then 

provides the procedural framework to 

finalize the rule. An agency typically 

uses direct final rulemaking when it 

anticipates the rule will be noncontroversial. 

The Department has determined that 

this rule is suitable for direct final 

rulemaking. The proposed revisions to 

the Board’s procedural regulations 

would require represented parties, 

unless exempted by the Board for good 

cause shown, to file documents via the 

Board’s new electronic case 

management system, which will also 

automatically serve these documents on 

registered system users. Some parties 

are already e-filing documents with the 

Board on a voluntary basis. Moreover, 

this new system is similar to those used 

by courts and other administrative 

agencies and will thus be familiar to the 

representatives. The proposed rule also 

would give self-represented (pro se) 

parties the option to file and serve 

documents through the electronic case 

management system or via conventional 

methods. These changes to the Board’s 

procedures and practices should not be 

controversial. The Department has 

determined that this rule is exempt from 

the notice and comment requirements 

under 5 U.S.C. 553(b) as a rule of agency 

practice and procedure. Nonetheless, 

the agency has decided to allow for 

public input by issuing a direct final 

rule and concurrent notice of proposed 

rulemaking. 

The comment period for this 

proposed rule runs concurrently with 

the comment period for the direct final 

rule. Any comments received in 

response to this proposed rule also will 

be considered as comments regarding 

the direct final rule and vice versa. For 

purposes of this rulemaking, a 

significant adverse comment is one that 

explains (1) why the rule is 

inappropriate, including challenges to 

the rule’s underlying premise or 

approach; or (2) why the direct final 

rule will be ineffective or unacceptable 

without a change. In determining 

whether a significant adverse comment 

necessitates withdrawal of the direct 

final rule, the Department will consider 

whether the comment raises an issue 

serious enough to warrant a substantive 

response had it been submitted in a 

standard notice-and-comment process. 

A comment recommending an addition 

to the rule will not be considered 

significant and adverse unless the 

comment explains how the rule would 

be ineffective without the addition. 

The Department requests comments 

on all issues related to this rule, 

including economic or other regulatory 

impacts of this rule on the regulated 

community. All interested parties 

should comment at this time because 

the Department will not initiate an 

additional comment period on the 

proposed rule even if it withdraws the 

direct final rule. 

This rule is not an E.O. 13771 

regulatory action because the Office of 

Information and Regulatory Affairs has 

determined it is not significant under 

E.O. 12866. 

Pursuant to the Congressional Review 

Act (5 U.S.C. 801 et seq.), the Office of 

Information and Regulatory Affairs 

designated this rule as not a ‘‘major 

rule,’’ as defined by 5 U.S.C. 804(3). 

I. Background of This Rulemaking 

The Department promulgates this rule 

under the authority of 5 U.S.C. 301, as 

well as the Black Lung Benefits Act, 30 

U.S.C. 901 et seq., and the Longshore 

and Harbor Workers’ Compensation Act, 

33 U.S.C. 901 et seq. 

The Board is proposing a rule that 

would make e-filing mandatory and 

acceptance of e-service automatic for 

parties represented by attorneys and lay 

representatives. E-filing has been 

optional and e-service was not available 

through the Board’s prior electronic 

system. As a result, the Board would 

receive filings in both paper and 

electronic form. The Board’s long-term 

goal is to have entirely electronic case 

files (e-case files), which the Board 

believes will significantly benefit both 

the Board and the participants in Board 

appeals by allowing the Board to more 

efficiently process incoming documents 

and to reduce the time it takes to 

adjudicate claims. Requiring attorneys 

and lay representatives to use e-filing 

and automatically receive service of efiled documents through the 

Department’s electronic case 

management system will help the Board 

move toward this goal. 

The Board previously used DOL 

Appeals, a consolidated web-based case 

tracking system deployed in FY2011 to 

replace individual legacy applications 

and streamline business processes 

specific to each of the three 

Adjudicatory Boards in the Department: 

the Board, the Administrative Review 

Board (ARB), and the Employees’ 

Compensation Appeals Board (ECAB). 

The Board reviews appeals of 

administrative law judges’ decisions 

arising under the Black Lung Benefits 

Act, and the Longshore and Harbor 

Workers’ Compensation Act and its 

extensions. The ARB issues decisions in 

cases arising under a variety of worker 

protection laws, including those 

governing environmental, 

transportation, and securities 

whistleblower protections; H–1B 

immigration provisions; child labor; 

employment discrimination; job 

training; seasonal and migrant workers; 

and Federal construction and service 

contracts. ECAB hears appeals taken 

from determinations and awards under 

the Federal Employees’ Compensation 

Act with respect to claims of Federal 

employees injured in the course of their 

employment. 

The DOL Appeals case management 

system provided a broad range of 

capabilities to the Adjudicatory Boards’ 

staff for inputting, processing, tracking, 


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managing, and reporting specific details 

on thousands of cases since its initial 

implementation. In FY2013, the system 

was enhanced to provide access to 

parties. More than 1,400 individuals 

were registered users of the DOL 

Appeals system. Users had the ability to 

check their case status, electronically 

file motions and briefs, and receive 

Board issuances electronically. 

However, users who e-filed documents 

still had to serve those documents on 

other parties by some other method 

(typically mail, commercial delivery, or 

electronic mail), as DOL Appeals did 

not have an automatic e-service function 

like that of the Federal courts’ electronic 

filing system. Moreover, because e-filing 

has been optional, the Board received, 

and still receives, many paper filings, 

including from attorneys and lay 

representatives. 

At present, the Board lacks sufficient 

resources to digitally image all 

pleadings received in paper form, and 

that option is unduly burdensome and 

labor intensive. Furthermore, if e-filing 

remains optional, it is unlikely that the 

Board will achieve the goal of 

completely electronic case files. If, 

however, attorneys and lay 

representatives are required to e-file all 

documents through the Board’s new 

case management system, imaging the 

remaining paper pleadings from selfrepresented parties would be 

manageable for the Board. In addition, 

greater utilization of e-filing and eservice through the new case 

management system will reduce case 

processing times by eliminating the 

timeframes required to allow for the 

delivery of traditional mailings. These 

time savings will allow the Board to 

more efficiently process appeals without 

any sacrifice to quality of work and will 

also greatly reduce mailing and copying 

costs for both the Board and the parties. 

Although Federal agencies are 

required by law to provide information 

and services via the internet, agencies 

must also consider the impact on 

persons without access to the internet 

and, to the extent practicable, ensure 

that the availability of government 

services has not been diminished for 

such persons. 44 U.S.C. 3501 note. 

Accordingly, the Board will make efiling and e-service optional for selfrepresented parties. The Board sees no 

legal restriction to making e-filing 

mandatory and acceptance of e-service 

automatic for attorneys and lay 

representatives, and does not believe it 

would impose undue costs or 

difficulties for them, particularly since a 

party may obtain an exemption for good 

cause shown. The Board notes in this 

regard that e-filing is generally 

mandatory for attorneys in the Federal 

district courts and U.S. Courts of 

Appeals; unless an exemption is 

granted, only self-represented parties 

have the option of filing pleadings in 

paper form. The Board also notes that, 

consistent with the Federal courts, the 

Department’s electronic case 

management system requires the filer to 

convert other electronic formats to 

Portable Document File (PDF) before 

filing. Parties filing via the electronic 

case management system need a 

computer, access to email and the 

internet, and the ability to convert 

documents to a PDF format. The rule 

also provides that registered electronic 

case management system users are 

deemed to accept service of all 

documents through the system. The 

Board will issue decisions and orders 

electronically to registered users who 

are parties to a case. 

III. Section-by-Section Analysis of 

Proposed Rules 

The Board proposes to remove and 

reserve the following sections: 

§ 802.204, Place for filing notice of 

appeal and correspondence; § 802.207, 

When a notice of appeal is considered 

to have been filed in the office of the 

Clerk of the Board; and § 802.216, 

Service and form of papers. The Board 

is making this change to clarify and 

consolidate its rules governing 

computation of time in current 

§ 802.221, filing of documents in new 

§ 802.222, and service of documents in 

new § 802.223. 

In general, the provisions in 

§§ 802.204, 802.207, and 802.216 will be 

moved into these three consolidated 

regulations and revised to accommodate 

mandatory e-filing and automatic 

acceptance of e-service for represented 

parties. The Board has proposed, 

however, to remove from its regulations 

the requirement in § 802.204 that a party 

who files a notice of appeal must serve 

a copy of it on the ‘‘deputy 

commissioner’’ (an official who is now 

called ‘‘district director,’’ 20 CFR 

701.301(a)(7), 725.101(a)(16)). This nonstatutory procedure is no longer 

required because the Board routinely 

provides the district director with notice 

of each appeal filed. 

Sec. 802.219 Motions to the Board; 

Orders 

The Board proposes to amend 

§ 802.219(d) to replace the current crossreference to § 802.216, a regulation the 

Board proposes to remove, with crossreferences to new §§ 802.222 and 

802.223. The new regulations will 

govern filing and service of motions 

made to the Board. 

Sec. 802.221 Computation of Time 

The Board proposes to amend 

§ 802.221 in several ways. Proposed 

paragraph (a) retains the same general 

time computation rule as in current 

paragraph (a) but substitutes the word 

‘‘must’’ for ‘‘shall’’ wherever it occurs. 

This substitution is consistent with 

Executive Order 13563, which states 

that regulations must be ‘‘written in 

plain language[.]’’ 76 FR 3821 (Jan. 18, 

2011). No alteration in meaning is 

intended by this change. 

Proposed paragraph (b) is limited to 

computing time for nonelectronic 

documents. Paragraph (b)(1) retains the 

current provision that, when sent by 

mail, the time period calculated under 

paragraph (a) is satisfied if the 

document is mailed within that time 

period, as demonstrated by postmark or 

other evidence. Paragraph (b)(2) adds a 

new provision to address the 

widespread use of commercial carriers 

(e.g., FedEx, UPS) for delivering 

documents. The rule provides that the 

time period calculated under paragraph 

(a) is satisfied if delivered to the carrier 

within that time period, as evidenced by 

the carrier’s receipt or tracking 

information. 

Proposed paragraph (c) is a new 

provision that addresses electronic 

filings made through the case 

management system. The time period 

calculated under paragraph (a) is 

deemed met if the pleading is filed by 

11:59:59 p.m. Eastern Time on the due 

date. The Board chose the Eastern Time 

zone based on the fact that Washington, 

DC is located within it. This mirrors the 

approach of Federal courts. See, e.g., 

Fed. R. App. P. 26(a)(4); Fed. R. Civ. P. 

6(a)(4). Finally, proposed paragraph (d), 

which notes that waivers of filing time 

limits may be requested by motion 

(except for notices of appeal), is 

identical to current paragraph (c). 

Sec. 802.222 Filing Notice of Appeal, 

Pleadings, and Other Correspondence 

Proposed § 802.222 is a new rule 

containing all filing requirements. The 

rule incorporates many of the general 

provisions in current § 802.216 and 

adds additional provisions for electronic 

filings. The rule also includes the 

special provisions for determining when 

a notice of appeal is filed that currently 

appear in § 802.207. Placing all of this 

information in one section will clarify 

the parties’ obligations when filing any 

pleading, exhibit, or other document 

with the Board. 

Proposed paragraph (a) contains the 

general requirements that apply to all 

pleadings, including captions, 

certificates of service, signatures, and 


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formatting. Because documents in a case 

may need to be served by more than one 

method, paragraph (a)(2) requires the 

parties to include detailed service 

information on the certificate of service. 

To simplify signatures on electronic 

filings, paragraph (a)(3) provides that 

pleadings filed via the case management 

system will be deemed signed by the 

filing person. 

Proposed paragraph (b) is a new 

provision requiring filing parties to 

redact certain personally identifiable 

and sensitive information from all 

documents filed with the Board. The 

rule is intended to protect the interests 

of the parties, minors who may be 

involved in a case, and the public 

generally. The language of this rule is 

based on similar rules in the Federal 

courts. See, e.g., Fed. R. Civ. P. 5.2(a); 

see also Fed. R. App. P. 25(a)(5). 

Proposed paragraph (c) governs 

nonelectronic filings. It retains the 

current requirements for submitting 

paper documents (e.g., parties must file 

an original and two copies of each 

pleading) and includes the Board’s 

address, which is currently located in 

§ 802.204. 

Proposed paragraph (d) is an entirely 

new provision addressing electronic 

filings. Paragraph (d)(1) requires 

attorneys and lay representatives to 

register for the electronic case 

management system and file all 

documents through it. This requirement 

applies only to those documents filed 45 

days after the effective date or later. 

This time period between the effective 

date, when litigants can be certain that 

the direct final rule will not be 

withdrawn, and the applicability date, 

on which e-filing becomes mandatory, 

allows the Office of Administrative Law 

Judges to update its notices of appeal 

rights so that by the time e-filing with 

the Board is mandatory, parties will 

have received a notice of appeal rights 

with updated information. It also allows 

parties who were previously filing and 

serving documents by mail to adjust to 

electronic filing. As discussed above, 

mandating electronic filing and 

automatically serving documents 

electronically filed through the system 

will benefit the parties and improve 

case processing. The regulation requires 

that e-filed documents be in PDF format 

and expresses a preference for textsearchable PDF format. To simplify the 

filing process, the regulation also 

informs filers that no paper copies need 

be filed unless requested by the Board; 

electronic submission alone is 

sufficient. Paragraph (d)(2) permits 

attorneys and lay representatives to 

request, by motion, an exemption from 

mandatory e-filing or acceptance of 

automatic e-service for good cause 

shown. 

Proposed paragraph (d)(3) allows selfrepresented (i.e., pro se) parties to file in 

either electronic or nonelectronic 

format. Providing this flexibility will 

allow these parties to easily participate 

in their cases. To remove any confusion 

about whether an electronically filed 

document is a ‘‘paper,’’ paragraph (d)(4) 

specifically provides that such 

documents are written papers for 

purposes of all of the Board’s procedural 

rules. Proposed paragraph (d)(5) 

addresses technical failures in two 

ways. First, any person encountering 

technical difficulties in filing or 

receiving electronic documents through 

the case management system may file a 

motion with the Board requesting relief 

appropriate to the particular incident. 

The Board encourages filers to retain 

documentation of the failure in these 

instances. Second, paragraph (d)(5) 

provides that the Board may issue a 

special order providing relief (e.g., 

allowing nonelectronic filings) when the 

case management system is not 

operational. 

Proposed paragraph (e) contains 

special rules on filing notices of appeal. 

Paragraph (e)(1) incorporates the general 

rule contained in current § 802.207(a)(1) 

on the filing date of a notice of appeal. 

Paragraph (e)(2) generally incorporates 

the provision in current § 802.207(a)(2) 

that the Board may consider an appeal 

submitted to another governmental unit 

to have been filed with the Clerk of the 

Board as of the date it was received by 

the other governmental unit. Paragraph 

(e)(2) does not specifically require that 

the other governmental unit promptly 

forward the notice of appeal to the office 

of the Clerk of the Board because the 

Board does not have such authority. 

Paragraph (e)(3) incorporates the 

provisions in current § 802.207(b) that 

permit the Board to use the date of 

mailing as the filing date for the notice 

of appeal if appeal rights would 

otherwise be lost. Paragraph (e)(3) 

extends this same protection to notices 

of appeal sent by commercial carrier 

(e.g., FedEx, UPS) and provides that the 

filing date in these instances is the date 

of delivery to the commercial carrier. 

Given the widespread use of 

commercial carriers, this additional 

provision will help ensure that parties’ 

appeal rights are not lost. Finally, 

paragraph (e)(4) clarifies that electronic 

notices of appeal filed through the case 

management system are considered 

received, and thus filed, as of the date 

and time recorded by the system. 

Sec. 802.223 Service Requirements 

Proposed § 802.223 is a new rule 

containing all service requirements. 

Paragraph (a) requires, akin to current 

§ 802.216(c), parties to serve every party 

in the case and the Solicitor of Labor 

with a copy of all documents filed with 

the Board. Paragraph (b) identifies the 

types of nonelectronic service (personal 

delivery; mail or commercial delivery) 

and electronic service (electronic mail, 

if consented to in writing by the person 

served, and electronic service to a 

registered user through the case 

management system) permitted. 

Significantly, paragraph (b)(2)(B) 

provides that a registered electronic case 

management system user ‘‘is deemed to 

have consented to accept service 

through the system.’’ Thus, automatic 

service through the electronic case 

management system is effective with 

respect to registered system users 

without any additional form of service. 

Paragraph (c) describes when service is 

effected for different delivery methods, 

which could become important to a 

cross-appeal filing under § 802.205(b). 

Finally, paragraph (d) governs the 

date of receipt for electronic documents 

served by the case management system 

or electronic mail. The receipt date is 

particularly important to determining 

deadlines for response briefs, responses 

to motions, and requests for oral 

argument. See §§ 802.212, 802.219, 

802.305. Under paragraph (d)(1), 

electronic case management systemserved documents are considered 

received by the system’s registered users 

in the case on the date the document is 

sent by the system. Similarly, under 

paragraph (d)(2) documents served via 

electronic mail are considered received 

when sent. In both instances, the 

recipients of service will have rapid 

access to the filed pleading, exhibit, or 

other document. 

IV. Administrative Requirements of the 

Proposed Rulemaking 

Executive Orders 12866, Regulatory 

Planning and Review; and 13563, 

Improving Regulation and Regulatory 

Review 

Executive Orders 12866 and 13563 

direct agencies to assess the costs and 

benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). Executive Order 13563 

emphasizes the importance of 

quantifying both costs and benefits, of 


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reducing costs, of harmonizing rules, 

and of 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 direct final 

rule is not a significant regulatory action 

under section 3(f) of Executive Order 

12866 because the proposed 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 proposed rule does not 

raise a novel legal or policy issue arising 

out of legal mandates, the President’s 

priorities, or the principles set forth in 

the Executive Order. Accordingly, OMB 

has waived review. 

Regulatory Flexibility Act of 1980 

Because no notice of proposed 

rulemaking is required for this rule 

under section 553(b) of the 

Administrative Procedure Act, the 

regulatory flexibility requirements of the 

Regulatory Flexibility Act, 5 U.S.C. 601, 

do not apply to this rule. See 5 U.S.C. 

601(2). 

Paperwork Reduction Act 

The Department has determined that 

this proposed rule is not subject to the 

requirements of the Paperwork 

Reduction Act, 44 U.S.C. 3501 et seq., 

as this rulemaking involves 

administrative actions to which the 

Federal government is a party or that 

occur after an administrative case file 

has been opened regarding a particular 

individual. See 5 CFR 1320.4(a)(2), (c). 

Unfunded Mandates Reform Act of 1995 

and Executive Order 13132, Federalism 

The Department has reviewed this 

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 20 CFR Part 802 

Administrative practice and 

procedure, Black lung benefits, 

Longshore and harbor workers, Workers’ 

compensation. 

For the reasons set forth in the 

preamble, the Department of Labor 

proposes to amend 20 CFR part 802 as 

follows: 

PART 802—RULES OF PRACTICE AND 

PROCEDURE 

■ 1. The authority citation for part 802 

continues to read as follows: 

Authority: 5 U.S.C. 301; 30 U.S.C. 901 et 

seq.; 33 U.S.C. 901 et seq.; Reorganization 

Plan No. 6 of 1950, 15 FR 3174; Secretary of 

Labor’s Order 03–2006, 71 FR 4219, January 

25, 2006. 

§ 802.204 [Removed and Reserved] 

■ 2. Remove and reserve § 802.204. 

§ 802.207 [Removed and Reserved] 

■ 3. Remove and reserve § 802.207. 

§ 802.216 [Removed and Reserved] 

■ 4. Remove and reserve § 802.216. 

■ 5. In § 802.219, revise paragraph (d) to 

read as follows: 

§ 802.219 Motions to the Board; orders 

* * * * * 

(d) The rules governing the filing and 

service of documents in §§ 802.222 and 

802.223 apply to all motions. 

* * * * * 

■ 6. Revise § 802.221 to read as follows: 

§ 802.221 Computation of time. 

(a) In computing any period of time 

prescribed or allowed by these rules, by 

direction of the Board, or by any 

applicable statute which does not 

provide otherwise, the day from which 

the designated period of time begins to 

run must not be included. The last day 

of the period so computed must be 

included, unless it is a Saturday, 

Sunday, or legal holiday, in which event 

the period runs until the end of the next 

day which is not a Saturday, Sunday, or 

legal holiday. 

(b) For nonelectronic documents, the 

time period computed under paragraph 

(a) of this section will be deemed 

complied with if— 

(1) When sent by mail, the envelope 

containing the document is postmarked 

by the U.S. Postal Service within the 

time period allowed. If there is no such 

postmark, or it is not legible, other 

evidence such as, but not limited to, 

certified mail receipts, certificates of 

service, and affidavits, may be used to 

establish the mailing date. 

(2) When sent by commercial carrier, 

the receipt or tracking information 

demonstrates that the paper was 

delivered to the carrier within the time 

period allowed. 

(c) For electronic filings made through 

the Board’s case management system, 

paragraph (a) of this section will be 

deemed to be met if the document is 

electronically filed within the time 

period allowed. A document is deemed 

filed as of the date and time the Board’s 

electronic case management system 

records its receipt, even if transmitted 

outside of the Board’s business hours set 

forth in § 801.304 of this chapter. To be 

considered timely, an e-filed pleading 

must be filed by 11:59:59 p.m. Eastern 

Time on the due date. 

(d) A waiver of the time limitations 

for filing a paper, other than a notice of 

appeal, may be requested by proper 

motion filed in accordance with 

§§ 802.217 and 802.219. 

■ 7. Add § 802.222 to subpart B to read 

as follows: 

§ 802.222 Filing notice of appeal, 

pleadings, and other correspondence. 

This section prescribes rules and 

procedures by which parties and 

representatives to proceedings before 

the Board file pleadings (including 

notices of appeal, petitions for review 

and briefs, response briefs, additional 

briefs, and motions), exhibits, and other 

documents including routine 

correspondence. 

(a) Requirements for all pleadings. All 

pleadings filed with the Board must— 

(1) Include a caption and title. 

(2) Include a certificate of service 

containing— 

(i) The date and manner of service; 

(ii) The names of persons served; and 

(iii) Their mail or electronic mail 

addresses or the addresses of the places 

of delivery, as appropriate for the 

manner of service. 

(3) Include a signature of the party (or 

his or her attorney or lay representative) 

and date of signature. Pleadings filed by 

an attorney, lay representative or selfrepresented party via the Board’s case 

management system will be deemed to 

be signed by that person. 


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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 


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