62480 Federal Register / Vol. 88, No. 175 / Tuesday, September 12, 2023 / Proposed Rules 

annual basis. This document proposes 

to amend the current version of that 

order, FAA Order JO 7400.11G, dated 

August 19, 2022, and effective 

September 15, 2022. These updates 

would be published subsequently in the 

next update to FAA Order JO 7400.11. 

That order is publicly available as listed 

in the ADDRESSES section of this 

document. 

FAA Order JO 7400.11G lists Class A, 

B, C, D, and E airspace areas, air traffic 

service routes, and reporting points. 

The Proposal 

The FAA is proposing to amend 14 

CFR part 71 by modifying the Class E 

airspace extending upward from 700 

feet above the surface to within a 6.6- 

mile (decreased from a 7-mile) radius of 

Mount Pleasant Municipal Airport, 

Mount Pleasant, MI; and updating the 

geographic coordinates of airport to 

coincide with the FAA’s aeronautical 

database. 

This action is the result of an airspace 

review due to the decommissioning of 

the Mount Pleasant VOR, which 

provided navigation information to this 

airport, as part of the VOR MON 

Program, and to support IFR operations 

at this airport. 

Regulatory Notices and Analyses 

The FAA has determined that this 

proposed regulation only involves an 

established body of technical 

regulations for which frequent and 

routine amendments are necessary to 

keep them operationally current. It, 

therefore: (1) is not a ‘‘significant 

regulatory action’’ under Executive 

Order 12866; (2) is not a ‘‘significant 

rule’’ under DOT Regulatory Policies 

and Procedures (44 FR 11034; February 

26, 1979); and (3) does not warrant 

preparation of a regulatory evaluation as 

the anticipated impact is so minimal. 

Since this is a routine matter that will 

only affect air traffic procedures and air 

navigation, it is certified that this 

proposed rule, when promulgated, will 

not have a significant economic impact 

on a substantial number of small entities 

under the criteria of the Regulatory 

Flexibility Act. 

Environmental Review 

This proposal will be subject to an 

environmental analysis in accordance 

with FAA Order 1050.1F, 

‘‘Environmental Impacts: Policies and 

Procedures’’ prior to any FAA final 

regulatory action. 

List of Subjects in 14 CFR Part 71 

Airspace, Incorporation by reference, 

Navigation (air). 

The Proposed Amendment 

In consideration of the foregoing, the 

Federal Aviation Administration 

proposes to amend 14 CFR part 71 as 

follows: 

PART 71—DESIGNATION OF CLASS A, 

B, C, D, AND E AIRSPACE AREAS; AIR 

TRAFFIC SERVICE ROUTES; AND 

REPORTING POINTS 

■ 1. The authority citation for 14 CFR 

part 71 continues to read as follows: 

Authority: 49 U.S.C. 106(f), 106(g); 40103, 

40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 

1959–1963 Comp., p. 389. 

§ 71.1 [Amended] 

■ 2. The incorporation by reference in 

14 CFR 71.1 of FAA Order JO 7400.11G, 

Airspace Designations and Reporting 

Points, dated August 19, 2022, and 

effective September 15, 2022, is 

amended as follows: 

Paragraph 6005 Class E Airspace Areas 

Extending Upward From 700 Feet or More 

Above the Surface of the Earth. 

* * * * * 

AGL MI E5 Mount Pleasant, MI [Amended] 

Mount Pleasant Municipal Airport, MI 

(Lat 43°37′18′′ N, long 84°44′14′′ W) 

That airspace extending upward from 700 

feet above the surface within a 6.6-mile 

radius of Mount Pleasant Municipal Airport. 

* * * * * 

Issued in Fort Worth, Texas, on September 

6, 2023. 

Martin A. Skinner, 

Acting Manager, Operations Support Group, 

ATO Central Service Center. 

[FR Doc. 2023–19547 Filed 9–11–23; 8:45 am] 

BILLING CODE 4910–13–P 

DEPARTMENT OF LABOR 

Office of Workers’ Compensation 

Programs 

20 CFR Part 702 

RIN 1240–AA17 

Longshore and Harbor Workers’ 

Compensation Act: Civil Money 

Penalties Procedures 

AGENCY: Office of Workers’ 

Compensation Programs, Labor. 

ACTION: Notice of proposed rulemaking; 

request for comments. 

SUMMARY: The Office of Workers’ 

Compensation Programs (OWCP) 

administers the Longshore and Harbor 

Workers’ Compensation Act and its 

extensions. To promote accountability 

and ensure fairness, OWCP proposes 

new rules for imposing and reviewing 

civil money penalties prescribed by the 

Longshore Act. The proposed rules 

would also set forth the procedures to 

contest OWCP’s penalty determinations. 

DATES: The Department invites written 

comments on the proposed rule from 

interested parties. Written comments 

must be received by November 13, 2023. 

ADDRESSES: You may submit written 

comments, identified by RIN number 

1240–AA17, by any of the following 

methods. To facilitate the receipt and 

processing of comments, OWCP 

encourages interested parties to submit 

their comments electronically. 

• Federal eRulemaking Portal: 

https://www.regulations.gov. Follow the 

instructions on the website for 

submitting comments. 

• Regular Mail or Hand Delivery/ 

Courier: Submit comments on paper to 

the Division of Federal Employees’, 

Longshore and Harbor Workers’ 

Compensation, Office of Workers’ 

Compensation Programs, U.S. 

Department of Labor, Room S–3229, 200 

Constitution Avenue NW, Washington, 

DC 20210. The Department’s receipt of 

U.S. mail may be significantly delayed 

due to security procedures. You must 

take this into consideration when 

preparing to meet the deadline for 

submitting comments. 

Instructions: All submissions received 

must include the agency name and the 

Regulatory Information Number (RIN) 

for this rulemaking. All comments 

received will be posted without change 

to https://www.regulations.gov. Please 

do not include any personally 

identifiable or confidential business 

information you do not want publicly 

disclosed. 

Docket: For access to the docket to 

read background documents or 

comments received, go to https://

www.regulations.gov. Although some 

information (e.g., copyrighted material) 

may not be available through the 

website, the entire rulemaking record, 

including any copyrighted material, will 

be available for inspection at OWCP. 

Please contact the individual named 

below if you would like to inspect the 

record. 

FOR FURTHER INFORMATION CONTACT: 

Antonio Rios, Director, Division of 

Federal Employees’, Longshore and 

Harbor Workers’ Compensation, Office 

of Workers’ Compensation Programs, 

(202) 693–0040, rios.antonio@dol.gov. 

TTY/TDD callers may dial toll free 1– 

877–889–5627 for further information. 


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SUPPLEMENTARY INFORMATION: 

I. Background of This Rulemaking 

The Longshore and Harbor Workers’ 

Compensation Act (LHWCA or Act), 33 

U.S.C. 901–50, establishes a 

comprehensive Federal workers’ 

compensation system for an employee’s 

disability or death arising in the course 

of covered maritime employment. 

Metro. Stevedore Co. v. Rambo, 515 U.S. 

291, 294 (1995). The Act’s provisions 

have been extended to (1) contractors 

working on military bases or U.S. 

government contracts outside the 

United States (Defense Base Act, 42 

U.S.C. 1651–54); (2) employees of 

nonappropriated fund instrumentalities 

(Nonappropriated Fund 

Instrumentalities Act, 5 U.S.C. 8171– 

73); (3) employees engaged in 

operations that extract natural resources 

from the outer continental shelf (Outer 

Continental Shelf Lands Act, 43 U.S.C. 

1333(b)); and (4) private employees in 

the District of Columbia injured prior to 

July 26, 1982 (District of Columbia 

Workers’ Compensation Act of May 17, 

1928, Public Law 70–419 (formerly 

codified at 36 DC Code 501 et seq. 

(1973) (repealed 1979)). Consequently, 

the Act and its extensions cover a broad 

range of claims for injuries that occur 

throughout the United States and 

around the world. 

OWCP’s sound administration of 

these programs involves periodic 

reexamination of the procedures used 

for claims processing and related issues. 

On April 28, 2020, OWCP hosted a 

public outreach webinar to solicit 

stakeholders’ views on how OWCP 

could improve its processes. See E.O. 

13563, sec. 2(c) (January 18, 2011) 

(requiring public consultation prior to 

issuing a proposed regulation). OWCP 

considered the feedback received during 

that session in developing the proposal. 

For example, participants noted that the 

statute only allows penalties for 

knowing and willful failures to file the 

report, so OWCP should establish 

knowledge and willfulness before 

assessing a penalty. They also noted that 

employers and insurance carriers 

should have a method to contest penalty 

assessments. On December 14, 2020, 

OWCP published a Notice of Proposed 

Rulemaking and a Direct Final Rule in 

the Federal Register revising regulations 

governing electronic filing and 

settlements and establishing new 

procedures for assessing and 

adjudicating penalties under the Act. 85 

FR 80601, 85 FR 80698. On January 20, 

2021, a new administration assumed 

office. The Assistant to the President 

and Chief of Staff issued a 

memorandum to the Heads of Executive 

Departments entitled ‘‘Regulatory 

Freeze Pending Review.’’ 86 FR 7424. 

The memorandum directed agencies to 

consider pausing or delaying certain 

regulatory actions for the purpose of 

reviewing questions of fact, law, and 

policy raised. OWCP believed that the 

most efficient way to implement the 

memorandum was to withdraw both the 

Direct Final Rule and the Notice of 

Proposed Rulemaking, rather than delay 

the effective date of the Direct Final 

Rule. The comment period was still 

open, and OWCP would have had to 

withdraw the Direct Final Rule anyway 

if it received significant adverse 

comments before the comment period 

closed. In accordance, on February 9, 

2021, OWCP withdrew the Notice of 

Proposed Rulemaking and the Direct 

Final Rule. 86 FR 8686, 86 FR 8721. 

Withdrawing the rule gave the new 

administration time to review the rule 

and consider the policies it would have 

implemented. After careful 

consideration, OWCP decided to move 

forward with a proposal to update its 

existing penalty regulations and 

implement a procedural scheme for 

employers to challenge penalties 

assessed against them. 

OWCP requests comments on all 

issues related to this rulemaking, 

including economic or other regulatory 

impacts on the regulated community. 

II. Overview of the Proposed Rule 

The proposed rule would add new 

sections and amend existing sections to 

implement the Act’s civil money 

penalty provisions. The Act allows 

OWCP to impose a penalty when an 

employer or insurance carrier fails to 

timely report a work-related injury or 

death, 33 U.S.C. 930(e), or fails to timely 

report its final payment of 

compensation to a claimant, 33 U.S.C. 

914(g). See 20 CFR 702.204, 702.236. 

The proposed rule would revise current 

§ 702.204 to provide for graduated 

penalties for an entity’s failure to timely 

file, or falsification of, the required 

report of an employee’s work-related 

injury or death. See 33 U.S.C. 930(a); 20 

CFR 702.201. The proposed rule 

provides that the penalty assessed will 

increase for each additional violation 

the employer has committed over the 

prior two years. The current regulation 

states only the maximum penalty 

allowable, without providing further 

guidance or a graduated penalty 

scheme. The proposed rule would also 

add new §§ 702.206, 207, and 208. 

These proposed sections would add 

procedures for the District Director to 

notify entities of failures to accurately 

and timely file, provide an opportunity 

for a response before the District 

Director issues a notice of proposed 

penalty, and provide guidance to both 

the District Director and the Director in 

determining the amount of the proposed 

penalty and penalty by setting forth 

aggravating and mitigating factors they 

may consider. 

The proposed rule also contains a 

new subpart I setting out procedures for 

challenging proposed penalties and 

penalties under both § 702.204 (for an 

entity’s failure to timely file, or 

falsification of, the required report of an 

employee’s work-related injury or 

death) and § 702.236 (for failing to 

report the termination of payments). 

These proposed procedures would 

allow an entity against whom a penalty 

is assessed the opportunity for a hearing 

before an administrative law judge, and 

to petition the Secretary of Labor 

(Secretary) for further review. After 

receiving the OWCP Director’s final 

penalty order assessing the penalty, 

consistent with sections 554 and 556 of 

the Administrative Procedure Act (5 

U.S.C. 551 et seq.), the respondent 

would be able to request a hearing 

before an administrative law judge (ALJ) 

under proposed § 702.906(a). During the 

hearing, entities would have the 

opportunity to submit facts and 

arguments for consideration consistent 

with the Rules of Practice and 

Procedure for Administrative Hearings 

Before the Office of Administrative Law 

Judges (29 CFR part 18). The ALJ would 

determine whether the respondent 

violated the statutory or regulatory 

provision under which the penalty was 

assessed and whether the amount of the 

penalty assessed was appropriate. 

Consistent with section 557 of the APA, 

the ALJ’s decision would become the 

decision of the Agency without further 

proceedings, unless within 30 days, the 

respondent requested reconsideration of 

the ALJ’s decision under proposed 

§ 702.907 or petitioned the Secretary for 

review under proposed § 702.908. The 

Secretary’s review would be 

discretionary and based on the record. 

These additional levels of review are 

consistent with the formal adjudication 

procedures under the Administrative 

Procedure Act, 5 U.S.C. 554, 556–557, 

and Recommendation 93–1 of the 

Administrative Conference of the 

United States, which recommends that 

formal adjudication under the 

Administrative Procedure Act be made 

available where a civil money penalty is 

at issue. The proposed procedures 

would fully protect employers’ and 

insurance carriers’ rights to challenge 

OWCP’s action before any penalty 

becomes final and subject to collection 


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62482 Federal Register / Vol. 88, No. 175 / Tuesday, September 12, 2023 / Proposed Rules 

and ensure transparency and fairness in 

the enforcement proceedings. 

IV. Section-by-Section Explanation 

Section 702.204 Employer’s Report; 

Penalty for Failure To Furnish and or 

Falsifying 

Under 33 U.S.C. 930(e), ‘‘any 

employer, insurance carrier, or selfinsured employer who knowingly and 

willfully fails or refuses to send any 

report’’ required by section 930 or 

‘‘knowingly or willfully makes a false 

statement or misrepresentation in any 

such report’’ is subject to a civil penalty 

for each violation. Proposed § 702.204 

would revise the current regulation in 

several ways. First, paragraphs (a)(1) 

and (a)(3) clarify that ‘‘knowingly’’ 

means actual knowledge or constructive 

knowledge—that is, that the entity knew 

or reasonably should have known of the 

violation. This is similar to the test for 

knowledge under the Occupational 

Safety and Health Act (OSH Act), 29 

U.S.C. 651 et seq. See, e.g., Sanderson 

Farms, Inc. v. Perez, 811 F.3d 730, 735 

(5th Cir. 2016) (explaining that to satisfy 

the knowledge element of a prima facie 

case of an Occupational Safety and 

Health Administration (OSHA) 

violation, the Secretary of Labor has to 

prove that the employer had actual or 

constructive knowledge of the 

violation); N & N Contractors, Inc. v. 

Occupational Safety & Health Rev. 

Comm’n, 255 F.3d 122, 127 (4th Cir. 

2001) (noting that an employer has 

constructive knowledge of a violation of 

a safety regulation if the employer fails 

to use a reasonable diligence to discern 

the presence of the violative condition); 

Halmar Corp., 18 BNA OSHC 1014, 

1016 (No. 94–2043, 1997) (explaining 

that the Commission’s test for 

knowledge is whether the employer 

knew, or with the exercise of reasonable 

diligence could have known, of the 

violation.) 

Proposed paragraph (a)(1) further 

explains that the entity must have 

knowledge of ‘‘the employee’s injury or 

death, that the injury or death is likely 

covered by the Act, that a report is 

required, and that a report was not 

timely filed.’’ The statute allows the 

Secretary to assess penalties when the 

failure, refusal, false statement, or 

misrepresentation is knowing, so this 

would clarify that knowledge includes 

knowledge of the employee’s condition 

as well as of the legal requirement for 

a report and the fact that the report was 

not properly submitted. Similarly, 

paragraph (a)(3) explains that 

knowledge of a false statement or 

misrepresentation requires knowledge 

that the information in the report is 

untrue, incomplete, or misleading. 

Proposed paragraphs (a)(2) and (a)(4) 

address the willfulness requirement in 

the statute. Proposed paragraph (a)(2) 

explains that an entity willfully fails or 

refuses to send a report when it 

intentionally disregards the reporting 

requirement or is plainly indifferent to 

the reporting requirement. This is 

similar to the definition of willfulness 

in other contexts. The OSH Act, 29 

U.S.C. 666(a), also provides for penalties 

for willful violations but does not define 

willfulness. The Department of Labor’s 

OSHA has provided that a willful 

violation exists under the OSH Act 

where an employer has demonstrated 

either an intentional disregard for the 

requirements of the OSH Act or a plain 

indifference to employee safety. OSHA 

Instruction CPL 02–00–164, Field 

Operations Manual, issued April 14, 

2020, pp. 4–22—4–24. There is ample 

case law validating the Department’s 

willfulness definition. See, e.g., Bianchi 

Trison Corp. v. Sec’y, 409 F.3d 196, 208 

(3d Cir. 2005) (‘‘Although the [OSH] Act 

does not define the term ‘willful,’ courts 

have unanimously held that a willful 

violation of the [OSH] Act constitutes 

‘an act done voluntarily with either an 

intentional disregard of, or plain 

indifference to, the [OSH] Act’s 

requirements.’’’); Chao v. Occupational 

Safety and Health Rev. Comm’n, 401 

F.3d 355 (5th Cir. 2005) (‘‘A willful 

violation is one committed voluntarily, 

with either intentional disregard of, or 

plain indifference to, OSH Act 

requirements’’); Fluor Daniel v. 

Occupational Safety and Health Rev. 

Comm’n, 295 F.3d 1232 (11th Cir. 2002) 

(explaining that ‘‘[a]lthough Section 666 

does not define the terms ‘willful’ or 

‘willfully,’’’ it is ‘‘an intentional 

disregard of, or plain indifference to, 

OSHA requirements’’); Stanley Roofing 

Co., 21 BNA OSHC 1462, 1466 (2006) 

(discussing that a willful violation is 

one committed with intentional, 

knowing or voluntary disregard for the 

requirements of the Act or with plain 

indifference). Proposed paragraph (a)(4) 

addresses willfulness in making a false 

statement or misrepresentation. Similar 

to paragraph (a)(2), OWCP proposes to 

establish willfulness when an entity 

intentionally disregards or exhibits 

plain indifference to the truth. Proposed 

paragraph (a)(5) is intended to explain 

that when establishing a false statement 

or misrepresentation, OWCP only needs 

to demonstrate that doing so was 

knowing or willful—not both. See 33 

U.S.C. 930(e). 

Proposed paragraph (b) provides that 

the number of penalties assessed in the 

prior two years against an entity will be 

considered in proposing and assessing 

further penalties. Proposed paragraph 

(b) also lists the baseline penalty 

amounts that will be recommended, 

beginning at five percent of the 

maximum penalty amount for a first 

violation, with the penalty doubling for 

each subsequent violation through the 

fifth violation. The sixth violation and 

subsequent violations will result in the 

maximum penalty. OWCP has proposed 

a percentage scheme because the 

maximum penalty amount will be 

adjusted every year under the Federal 

Civil Penalties Inflation Adjustment Act 

of 1990, as amended by the Federal 

Civil Penalties Inflation Adjustment Act 

Improvements Act of 2015, Public Law 

114–74, section 701. Basing the baseline 

proposed penalty on a percentage of the 

maximum penalty amount, rather than a 

dollar amount, will allow OWCP to rely 

on the table even as the maximum 

penalty amount changes each year. 

Furthermore, as the maximum penalty 

is set by statute and regulation, a 

graduated penalty scheme beginning at 

a low percentage will allow OWCP to 

increase the baseline penalty with each 

subsequent violation and thereby 

increase the deterrent effect. As 

expanded upon later in the explanation 

for § 702.208, the baseline proposed 

penalty amount for each violation can 

be adjusted higher or lower, consistent 

with the statutory maximum, based on 

relevant aggravating and mitigating 

factors. 

Section 702.206 Notice of Failure To 

Timely Submit Accurate Report 

Under proposed paragraph (a) of 

§ 702.206, when OWCP receives 

information that indicates an injury or 

death has occurred on a particular date 

but has not received a report as required 

by § 702.201, the District Director will 

send a notice to the employer. This is 

consistent with the procedures set forth 

in chapter 08–0302 of OWCP’s 

Longshore Procedure Manual, which 

instructs the District Director to send a 

missing form LS–202 pre-penalty letter. 

As explained in section 6 of chapter 08– 

0302, this pre-penalty letter describes 

the evidence OWCP has received that 

indicates an injury or death has 

occurred on a particular date; notifies 

the employer of its responsibility to file 

a report within 10 days of that date; and 

requests an explanation for the 

employer’s failure to file a report within 

the required time limit. Furthermore, 

under proposed paragraph (a), the 

District Director’s notice would 

specifically notify the employer that it 

may be subject to a penalty if its failure 

to timely submit a report is knowing 

and willful and instructs the employer 


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Federal Register / Vol. 88, No. 175 / Tuesday, September 12, 2023 / Proposed Rules 62483 

that it must file the required report no 

later than ten days after the receipt of 

the notice. As explained in the manual, 

‘‘once an employer has been advised in 

writing of its responsibility to file a 

timely report, any further failure should 

be considered knowing and willful.’’ 

OWCP has therefore preliminarily 

determined that the first notice should 

clearly explain the penalties for not 

filing the report once the employer is 

undeniably on notice of the 

requirements—i.e., that OWCP will 

consider continued disregard of the 

legal requirement to be knowing and 

willful. 

Proposed paragraph (b) provides that 

‘‘if the employer does not file the 

required report within ten days of 

receipt of the notice described in 

paragraph (a), the District Director will 

send a second notice to the employer. 

As explained above, once the first notice 

has been sent to the employer, the 

employer is undeniably on notice of the 

requirement to timely file an accurate 

report and any future failures 

demonstrate a conscious disregard for 

the requirement. In this second notice, 

the District Director would notify the 

employer that its failure to file the 

required report after receipt of the 

notice described in paragraph (a) 

constitutes evidence that its failure to 

timely submit a report is knowing and 

willful; request an explanation for the 

failure to file a report within the 

required time limit and request the 

employer’s reasons why the full 

baseline penalty amount under 

§ 702.204 should not be assessed against 

the employer, including documentation 

supporting any mitigating factors 

claimed under § 702.208(c); and instruct 

the employer that its response should be 

filed within 30 days of receipt of the 

notice. This is consistent with the 

procedures set forth in the manual, 

although under the proposed rule, the 

information requested by the District 

Director is bifurcated into two notices 

rather than the single pre-penalty letter 

for a missing form LS–202 described in 

the manual. While the District Director 

may have other evidence that 

demonstrates knowledge and 

willfulness, this bifurcated notice 

system would ensure that by the time 

the District Director notifies the 

employer that its failure to timely 

submit a report is knowing and willful, 

the District Director has clear evidence 

that the employer was, at a minimum, 

aware of the legal requirements and yet 

chose to disregard them by failing to 

timely submit a report. 

Under proposed paragraph (c), when 

OWCP receives a report filed more than 

ten days from the date of an employee’s 

injury or death or the date an employer 

has knowledge of an employee’s injury 

or death, and the District Director has 

not already sent a notice under 

paragraph (a), the District Director may 

notify the employer of its responsibility 

to file a report within ten days of the 

date of an employee’s injury or death or 

the date an employer has knowledge of 

an employee’s injury or death. This is 

consistent with the first part of the prepenalty letter for a late form LS–202 and 

the procedure manual, which also 

instructs the District Director to notify 

the employer of their obligations when 

a report is filed late. Unlike with a 

second notice of a missing form, 

however, the District Director would not 

automatically inform the employer that 

it may be subject to a penalty. In certain 

situations, however, the District Director 

may have information indicating 

evidence of knowledge and willfulness, 

in which case they will inform the 

employer that it may be subject to a 

penalty for failing to timely file the 

report as required by section 930(a) of 

the Act. In such circumstances, the 

notice will also request an explanation 

for the failure to file a report within the 

required time limit and the employer’s 

reasons why the full baseline penalty 

amount under § 702.204 should not be 

assessed against the employer, 

including documentation supporting 

any mitigating factors claimed under 

§ 702.208(c), and instruct the employer 

that its response should be filed within 

30 days of receipt of the notice. 

Under proposed paragraph (d), when 

OWCP receives a report containing a 

false statement or misrepresentation, the 

District Director would send a notice to 

the employer that describes the 

evidence that indicates the report 

contains a false statement or 

misrepresentation; notifies the employer 

that it may be subject to a penalty if the 

false statement or misrepresentation was 

made knowingly or willfully; requests 

an explanation for the false statement or 

misrepresentation and the employer’s 

reasons why the full baseline penalty 

amount under § 702.204 should not be 

assessed against the employer; and 

instructs the employer that its response 

should be filed within 30 days of the 

date of the letter. Unlike with missing 

reports, the statute only requires that the 

false statement or misrepresentation be 

made knowingly or willingly, but not 

necessarily both. The District Director 

could obtain this evidence from many 

different sources if they suspect a false 

statement or misrepresentation. For 

example, the District Director may learn 

about injuries from news reports, from 

employee advocates, or from employees 

themselves. 

OWCP requests comments on all 

aspects of proposed § 702.206, and 

particularly on the sources and type of 

information the agency should use to 

determine whether a failure was 

knowing or willful. 

As described earlier, this proposed 

rule applies to the LHWCA and its 

extensions, including the Defense Base 

Act, which covers contractors working 

on military bases or U.S. government 

contracts outside the United States. 42 

U.S.C. 1651–54. There may be special 

considerations when determining 

whether an employer acts with 

knowledge and willfulness when it 

comes to reporting injuries sustained by 

employees of Federal contractors 

abroad. For example, there may be a 

heightened awareness of the legal 

requirements, either through the 

procurement process or other avenues. 

The contracting agencies may have 

related reporting requirements, and 

such information may demonstrate the 

contractor-employer’s state of mind. 

OWCP therefore seeks comment on how 

to address failures under the Defense 

Base Act in particular, in light of the 

additional information available to the 

Federal Government, that would 

establish knowledge and willfulness. 

Section 702.207 Consideration of 

Response; Notice of Proposed Penalty 

Proposed § 702.207 sets forth the 

process for considering the response 

and issuing the notice of proposed 

penalty. Under proposed paragraph (a), 

the District Director would consider the 

employer’s responses, if any, to the 

notices described in § 702.206, as well 

as any other information the District 

Director has about the injury or the 

respondent, to determine whether the 

failure, refusal, false statement, or 

misrepresentation was knowing or 

willful as set forth in § 702.204. As with 

§ 702.206(d), the District Director may 

have information about an injury or 

illness from many different sources, 

such as news reports, employee 

advocates, or employees themselves. 

Under proposed paragraph (b), if the 

District Director determines that there 

was a violation, they will issue a notice 

of proposed penalty. Proposed 

paragraph (b) also provides that the 

Director has the authority and 

responsibility for assessing a penalty 

using the procedures set forth at subpart 

I. The notice of proposed penalty is 

described in detail in section 903 and 

the corresponding section of this 

preamble. 


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62484 Federal Register / Vol. 88, No. 175 / Tuesday, September 12, 2023 / Proposed Rules 

Section 702.208 Special 

Considerations in Setting Penalty 

Amounts 

In proposed § 702.208, proposed 

paragraph (a) provides that the District 

Director and Director may consider 

mitigating and aggravating factors when 

determining the amount of the proposed 

and assessed penalties. This must be 

consistent with the statutory maximum, 

which is currently $28,304 as adjusted 

for inflation, so the penalty cannot 

exceed that amount. See Federal Civil 

Penalties Inflation Adjustment Act 

Improvements Act of 2015, Public Law 

114–74, sec. 701; Federal Civil Penalties 

Inflation Adjustment Act Annual 

Adjustments for 2023, 88 FR 2210 

(January 13, 2023). Proposed paragraph 

(b) lists the aggravating factors that may 

be considered: extent of delay in filing 

the report; attempts to conceal the 

injury or death; failure to timely pay 

compensation due the claimant; failure 

to submit information sufficient to 

determine whether the correct 

compensation has been paid; any prior 

settlements of penalties assessed by the 

Director; any outstanding proposed 

penalties assessed against the entity; 

any prior penalties assessed against an 

entity’s parent company or subsidiary; 

and any other factors relevant to the 

respondent’s conduct with respect to 

the contents of the report. The statutory 

instruction that the penalty is ‘‘not to 

exceed’’ a maximum amount indicates 

that Congress intended to provide the 

agency with some discretion in setting 

an appropriate penalty. These are 

factors that OWCP has preliminarily 

determined are relevant to the 

appropriateness of the penalty and its 

potential to deter future violations, and 

they are largely consistent with the 

factors listed in chapter 08–0302 of the 

Longshore Procedure Manual. The final 

factor is meant to address facts specific 

to a particular employer or situation that 

may not be generally applicable but are 

still relevant in a particular case. The 

agency welcomes comment on these 

proposed factors. 

Similarly, proposed paragraph (c) lists 

the mitigating factors that may be 

considered in lowering the amount: 

bringing the failure to comply with the 

Act or regulations to the District 

Director’s attention; full payment of the 

correct amount of compensation to the 

claimant; timely compliance with the 

District Director’s requests once failure 

to comply with the Act or regulations 

was brought to their attention; history of 

compliance with the Act and the 

regulations of this subchapter; a mass 

casualty event preventing the timely 

filing in all related cases; whether the 

respondent is a ‘‘small entity’’ within 

the meaning of the Regulatory 

Flexibility Act, 5 U.S.C. 601(6); and any 

other relevant factors. These are meant 

to address situations where a penalty 

would still have a deterrent effect at a 

lower level and are largely consistent 

with the mitigating factors listed in 

chapter 08–0302 of the Longshore 

Procedure Manual. The sixth factor, 

whether the respondent is a ‘‘small 

entity,’’ is listed as a proposed 

mitigating factor rather than a required 

consideration. The Regulatory 

Flexibility Act allows agencies to 

decline to consider small entity status 

for willful or criminal violations. See 5 

U.S.C. 601 note § 223(b)(4). Because 

violations under section 930 of the 

statute are all necessarily willful or 

involve knowing misrepresentation, 

OWCP includes it as a mitigating factor 

to consider when appropriate. As with 

the aggravating factors, the final factor is 

meant to address facts specific to a 

particular employer or situation that 

may not be generally applicable but are 

still relevant in a particular case. OWCP 

welcomes comment on these proposed 

factors. 

Section 702.233 Additional 

Compensation for Failure To Pay 

Without an Award 

OWCP proposes to substitute the 

phrase ‘‘additional compensation’’ for 

the word ‘‘penalty’’ in § 702.233’s 

current title (i.e., ‘‘Penalty for failure to 

pay an award’’). Section 702.233 

implements section 14(e) of the Act, 33 

U.S.C. 914(e), which provides that 

claimants are entitled to an additional 

10 percent of any compensation payable 

without an award when not paid within 

14 days of when it is due. The Board has 

held that payments under section 14(e) 

(which are paid to claimants, not 

OWCP) are ‘‘compensation’’ and not 

‘‘penalties.’’ Robirds v. ICTSI Oregon, 

Inc., 52 BRBS 79 (2019) (en banc). In 

reaching its conclusion, the Board relied 

on the Federal Circuit’s decision in 

Ingalls Shipbuilding, Inc. v. Dalton, 119 

F.3d 972, 979 (Fed. Cir. 1997), which 

held that payments under section 14(e) 

are compensation. The majority of 

courts have also construed the similar 

language in section 14(f) of the Act, 33 

U.S.C. 914(f) (requiring payment of 

additional 20 percent for late payments 

under terms of an award), as payments 

of ‘‘compensation’’ rather than a 

penalty. See Tahara v. Matson 

Terminals, Inc., 511 F.3d 950, 953 (9th 

Cir. 2007) (‘‘[T]he LHWCA’s plain 

language supports that a § 914(f) late 

payment award is compensation’’); 

Newport News Shipbuilding and Dry 

Dock Co. v. Brown, 376 F.3d 245, 251 

(4th Cir. 2004) (‘‘[I]t is plain that an 

award for late payment under [section] 

14(f) is compensation.’’). But see Burgo 

v. General Dynamics Corp., 122 F.3d 

140, 145–46 (2d Cir. 1997). Using 

‘‘additional compensation’’ in the title 

of § 702.233 promotes accuracy and 

clarifies the instances in which the new 

penalty procedures apply. 

Section 702.236 Penalty for Failure To 

Report Termination of Payments 

Proposed § 702.236 revises the 

current rule to incorporate the penalty 

procedural rules proposed in new 

subpart I. It also clarifies that the 

Director, not the District Director, has 

the ultimate authority and responsibility 

for assessing the penalty. This is 

consistent with the process set forth in 

the new proposed subpart I. 

Section 702.274 Employer’s Refusal To 

Pay Penalty 

The proposed changes to § 702.274 

would simply (1) clarify that 

consequences for refusing to pay would 

occur only after the penalty becomes 

final and (2) update the outdated 

references to officials and offices within 

the Department of Labor. 

Section 702.901 Scope of This Subpart 

Proposed § 702.901 provides that the 

procedures set forth in subpart I apply 

when the District Director imposes civil 

monetary penalties under § 702.204 or 

702.236 and that any penalties collected 

are to be deposited into the special fund 

described in 33 U.S.C. 944. 

Section 702.902 Definitions 

Proposed § 702.902 defines 

‘‘respondent’’ as the employer, 

insurance carrier, or self-insured 

employer against whom the District 

Director is seeking to assess a penalty. 

This covers the possible entities against 

which penalties may be assessed under 

the scope of this subpart. 33 U.S.C. 

914(g) authorizes the Secretary to assess 

a penalty against an employer, and 

section 935 substitutes the carrier for 

the employer regarding any obligations 

and duties imposed by the Act on the 

employer. Section 930(a) requires the 

employer to send the report to the 

Secretary, and section 930(e) explicitly 

makes employers, insurance carriers, 

and self-insured employers subject to 

possible penalties. 

For the purpose of this subpart, 

OWCP interprets insurance carriers to 

include self-insured employer groups. 

Under 20 CFR 701.301(a)(13), a carrier 

is an insurance carrier or self-insurer 

meeting the statutory requirements with 

respect to authorization to provide 

insurance fulfilling the obligation of an 


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employer to secure the payment of 

compensation. The penalties in this 

rulemaking are meant to address failures 

and misrepresentations in filing 

required reports, so to the extent the 

obligation to file falls on self-insured 

employer groups, they too may be 

respondents under subpart I. 

Section 702.903 Notice of Penalty; 

Response; Consequences of No 

Response 

Proposed § 702.903 is a new 

provision governing the District 

Director’s notice of proposed penalty, 

the respondent’s response, and the 

consequences of not responding. 

Paragraph (a) requires OWCP to serve a 

written notice on the respondent by a 

method that verifies the delivery date 

because date of receipt triggers the 

respondent’s response period. If the 

respondent does not accept service, the 

receipt date will be the attempted date 

of delivery. This is to ensure 

respondents do not have an incentive to 

evade service. Proposed paragraph (b) 

prescribes the contents of the notice: the 

facts giving rise to the proposed penalty, 

the statutory and regulatory basis for the 

proposed penalty, the amount of the 

proposed penalty and explanation of the 

amount, instructions for including 

documentation in the response, and the 

consequences of failing to timely 

respond. Proposed paragraph (c) gives 

the respondent 30 days to respond. The 

response may include an explanation of 

why the full proposed penalty amount 

should not be assessed and 

documentation relevant to the factual 

basis for the penalty, including any 

mitigating factors claimed under 

proposed § 702.208. Proposed paragraph 

(d) provides that if the respondent does 

not respond within 30 days, the District 

Director will submit the notice of 

proposed penalty to the Director as a 

preliminary decision. This ensures the 

process continues without delay while 

still providing the respondent with a 

fair opportunity to provide additional 

information or reasons that the District 

Director may not have considered. 

§ 702.904 Preliminary Decision on 

Notice of Proposed Penalty After Timely 

Response 

Proposed § 702.904 addresses the 

District Director’s preliminary decision 

after a timely response from the 

respondent. If the respondent files a 

timely response to the notice described 

in § 702.903, the District Director would 

review the facts and any argument 

presented in the response, revise the 

proposed penalty amount, if warranted, 

and submit the revised notice of 

proposed penalty to the Director as a 

preliminary decision. This provision, 

along with proposed § 702.903, allows 

the respondent a meaningful 

opportunity to be heard before the 

District Director and allows the District 

Director time to revise the proposed 

penalty if appropriate. 

Section 702.905 Director’s Penalty 

Order; Request for Hearing 

Proposed § 702.905 addresses the 

Director’s issuance of the penalty order 

and the process for requesting a hearing 

before the Office of Administrative Law 

Judges. Proposed paragraph (a) provides 

that the Director will consider the 

District Director’s preliminary decision 

and issue a penalty order in no more 

than 30 days. OWCP welcomes 

comment on this time frame. 

Under proposed paragraph (a)(1) 

through (3), the penalty order must 

contain a statement of the reasons for 

the assessment, including an evaluation 

of any mitigating or aggravating factors 

considered, and the amount of the 

penalty; a statement of the respondent’s 

right to request a hearing on the 

Director’s penalty order and the method 

for doing so; and a statement of the 

consequences of failing to timely 

request a hearing. By including the 

reasons for the penalty and information 

about how to contest it, OWCP intends 

to provide the respondent with fair 

notice and a full opportunity to contest 

the penalty order. 

Proposed paragraph (b) provides that 

the respondent has 15 days from receipt 

of the Director’s penalty order to request 

a hearing before an Administrative Law 

Judge by filing a request for hearing 

with the District Director. See, e.g., 20 

CFR 702.316 (providing 14 days for 

parties to object to the District Director’s 

recommendations and request a 

hearing). The request must be 

typewritten or legibly written so that the 

District Director can understand the 

contents. It must state the specific 

determinations in the Director’s penalty 

order with which the respondent 

disagrees so that the ALJ understands 

the scope of the matter. It must also be 

signed and dated and include physical 

and electronic addresses so that OWCP 

and OALJ can document the date of the 

request and communicate with the 

respondent about the hearing. 

Proposed paragraph (c) would stay the 

collection of the penalty until final 

resolution, either by the ALJ or the 

Secretary. This provision would ensure 

the respondent does not have to pay a 

penalty until it is fully adjudicated. 

Proposed paragraph (d) provides that if 

the respondent does not request a 

hearing within 15 days of receipt of the 

Director’s penalty order, the assessment 

and amount of the penalty set forth in 

the Director’s penalty order will be 

deemed a final decision of the Secretary. 

This is to ensure the decision becomes 

final and that OWCP can collect the 

penalty even if the respondent takes no 

action. See 20 CFR 726.320(a). 

Section 702.906 Referral to the Office 

of Administrative Law Judges 

Proposed § 702.906 addresses referral 

of an assessment and penalty for a 

hearing before an administrative law 

judge and is similar to the civil money 

penalty provisions for failure to insure 

under the Black Lung Benefits Act, 20 

CFR 726.309 through 311. Paragraph (a) 

provides that, when the District Director 

receives a request for hearing, the 

District Director will notify the Chief 

Administrative Law Judge, who will 

assign the case to an administrative law 

judge. The District Director will also 

forward the administrative record, 

which consists of the District Director’s 

notice of proposed penalty and 

preliminary decision, the 

documentation upon which the District 

Director relied in issuing the notice of 

proposed penalty and preliminary 

decision, all written responses and 

documentation filed by the respondent 

with the District Director, the Director’s 

penalty order, the documentation upon 

which the Director relied in issuing the 

penalty order, and the respondent’s 

request for hearing. Limiting the 

administrative record to documents 

considered by the District Director and 

Director will allow the ALJ to determine 

the appropriateness of the penalty. 

Paragraph (b) provides that the rules 

set forth in 29 CFR part 18 will apply 

to any hearing before an administrative 

law judge under subpart I. 29 CFR part 

18 contains the existing rules of practice 

and procedure for administrative 

hearings before the Office of 

Administrative Law Judges and covers, 

among other things, general procedures, 

filing, service, and hearings. 

Section 702.907 Decision and Order of 

Administrative Law Judge 

Proposed § 702.907 governs the 

contents, issuance, service, and finality 

of the administrative law judge’s 

decision on the Director’s penalty order. 

Proposed paragraph (a) limits the 

administrative law judge’s 

determinations to whether the 

respondent has violated the provision 

under which the penalty was assessed, 

and whether the penalty is appropriate 

under the standards set forth in 

§§ 702.204, 702.236, and 702.903(c)(2). 

Limiting the judge’s consideration to 

these issues will help streamline the 

hearing and decision process. Proposed 


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paragraph (b) provides that 

documentation not presented to the 

District Director may not be admitted in 

any further proceedings before an ALJ 

unless the ALJ finds that the failure to 

submit the documentation to the District 

Director should be excused due to 

extraordinary circumstances. This is 

similar to 20 CFR 725.456(b)(1), which 

governs the admissibility of 

documentary evidence pertaining to the 

liability of a potentially liable operator 

and the identification of a responsible 

operator in a claim filed to seek benefits 

under the Black Lung Benefits Act, 30 

U.S.C. 901–944. Similar to the 

limitation on issues considered by an 

ALJ, the limitation on evidence would 

simplify and streamline the penaltyassessment process. Proposed paragraph 

(b) would arm the District Director with 

sufficient information to accurately 

assess the proposed penalty before the 

case is referred to the Office of 

Administrative Law Judges. 

Extraordinary circumstances may be 

shown where an employer encounters 

‘‘particular difficulty obtaining the 

necessary evidence.’’ See 65 FR 79989. 

This would entail showing that even 

after reasonable diligence, the 

respondent could not have produced the 

evidence at the District Director stage. 

For example, assume that after receiving 

the notice of proposed penalty, 

respondent requests but is unable to 

acquire documentation because of a 

catastrophic event or natural disaster 

that caused a delay in processing the 

request. If respondent obtains the 

documentation after the District Director 

issues the preliminary decision on the 

notice of proposed penalty, it may be 

able to demonstrate that extraordinary 

circumstances justify the admission of 

the evidence before the ALJ. Moreover, 

there is ample case law applying the 

extraordinary circumstances 

requirement under the Black Lung 

Benefits Act and confirming that it is a 

high bar to meet. See, e.g., Howard v. 

Apogee Coal Company, BRB No. 20– 

0229 BLA (Oct. 18, 2022) (rejecting 

employer’s argument that extraordinary 

circumstances exist based on Director’s 

actions in separate claims); Dallas 

McCoy v. Eastern Associated, BRB No. 

19–0520 BLA (March 31, 2021) (unpub.) 

(‘‘[T]he mere fact employer’s exhibits 

were in DOL’s possession does not show 

extraordinary circumstances for why 

Employer did not timely obtain and 

submit them.’’); Bobby Knight v. 

Heritage Coal Co., BRB No. 19–0435 

BLA (Dec. 15, 2020) (unpub.) (rejecting 

employer’s assertion that extraordinary 

circumstances exist where ‘‘employer 

requested the relevant documents after 

the deadline’’ to submit additional 

evidence). 

Proposed paragraph (c) requires the 

administrative law judge’s decision to 

include a statement of findings and 

conclusions, with the reasons and bases 

for those findings and conclusions; 

instructions for filing a motion for 

reconsideration with the Administrative 

Law Judge; and instructions for filing a 

petition for review with the Secretary. 

This would allow the Secretary or a 

court to review the decision and 

determine its reasonableness if the 

respondent seeks further judicial 

review. 

Proposed paragraph (d) would require 

the administrative law judge to deliver 

a copy of the decision and order to the 

District Director for service on the 

parties. This is consistent with the 

procedures set forth in 20 CFR 702.349, 

where the administrative law judge 

delivers the compensation order to the 

District Director for service on the 

parties and on the representatives of the 

parties, if any. Proposed paragraph (e) 

provides that any party may move for 

reconsideration of the decision within 

30 days of the date the District Director 

serves the decision, and that any such 

motion will suspend the running of time 

to file a petition for review under 

§ 702.908 until the date the motion for 

reconsideration is denied or 30 days 

after a new decision is issued. This 

would allow time for the ALJ to 

consider the motion and, if warranted, 

issue a new decision while still 

preserving the parties’ rights to further 

appeal the decision. Proposed paragraph 

(f) provides that, absent a timely request 

for reconsideration or petition for 

review, or if any such motions or 

petitions are denied, the administrative 

law judge’s decision will be deemed a 

final decision of the Secretary. Proposed 

paragraph (g) provides that the ALJ will 

forward the complete hearing record to 

the District Director at the conclusion of 

all hearing proceedings. This is 

consistent with 20 CFR 702.349(a), 

where the District Director retains 

custody of the record after ALJ 

proceedings regarding a compensation 

order. 

Section 702.908 Review by the 

Secretary 

Proposed § 702.908 allows any party 

aggrieved by an administrative law 

judge’s decision to petition the 

Secretary for review. Proposed 

paragraph (a) requires that any petition 

be filed within 30 days of the date on 

which the District Director serves the 

decision. Under proposed paragraph (b), 

if any party files a timely motion for 

reconsideration with the administrative 

law judge, the 30-day period will not 

begin to run until the judge issues a 

decision on reconsideration and any 

petition for review filed earlier will be 

dismissed without prejudice as 

premature. This is to ensure the ALJ 

process is complete before moving to 

the next level in the appeal process. 

Proposed paragraph (c) sets out the 

requirements for the petition for review: 

that it be typewritten or legibly written, 

state the specific determinations in the 

ALJ decision with which the petitioner 

disagrees, be signed and dated, and 

include attached copies of the ALJ’s 

decision and any other relevant 

documents in the record. This is to 

ensure the Secretary or their designee 

has sufficient information on which to 

render a decision. And proposed 

paragraph (d) provides the mailing 

address for sending the petition, notes 

that documents are not considered filed 

until actually received by the Secretary, 

and requires the petition to be filed in 

the manner specified in the ALJ’s 

decision and order. This is to allow for 

future address changes and 

technological advancements, while 

avoiding confusion if information in the 

regulation becomes outdated. 

Section 702.909 Discretionary Review 

Proposed § 702.909(a) provides that 

the Secretary’s review of a timely 

petition is discretionary and that the 

Secretary will send written notice of 

their determination to all parties. 

Paragraph (a)(1) provides that, if the 

Secretary declines review, the 

administrative law judge’s decision will 

be considered the final agency decision 

30 days after the filing of the petition for 

review. Under paragraph (b)(2), if the 

Secretary chooses to review the 

decision, the Secretary will notify the 

parties of the issues to be reviewed and 

set a schedule for the parties to submit 

written arguments in whatever form the 

Secretary deems appropriate. Proposed 

paragraph (b) requires the District 

Director to forward the administrative 

record to the Secretary if the Secretary 

decides to review the administrative law 

judge’s decision. 

Section 702.910 Final Decision of the 

Secretary 

Proposed § 702.910 limits the 

Secretary’s review to the hearing record. 

The Secretary will review findings of 

fact under a substantial evidence 

standard and conclusions of law de 

novo. The Secretary may affirm, reverse, 

modify, or vacate the decision, and may 

remand to the Office of Administrative 

Law Judges for further review. This is 

based on the scope of review for the 

Benefits Review Board for cases under 


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its jurisdiction. See 20 CFR 802.301 

(‘‘Such findings of fact and conclusions 

of law may be set aside only if they are 

not, in the judgment of the Board, 

supported by substantial evidence in the 

record considered as a whole or in 

accordance with law.’’). The Secretary’s 

decision must be served on all parties 

and the Chief Administrative Law 

Judge. 

Section 702.911 Settlement of Penalty 

Proposed § 702.911 provides that the 

respondent and the Director or District 

Director may enter into a settlement at 

any time during the penalty 

proceedings. This provision would 

cover both proposed penalties and 

assessed penalties and is meant to allow 

flexibility and forestall further litigation 

if OWCP and the respondent reach 

agreement at any point during the 

proceedings. Upon settlement, the 

OWCP official with whom the 

respondent settled would transmit a 

copy of the settlement agreement to the 

Deputy Director for Longshore Claims. 

This is to ensure the Longshore program 

is aware of every settlement for the 

purpose of tracking collections and 

recovery, as well as for possible 

consideration as an aggravating factor 

under any future penalty proceedings 

involving the same respondent. 

Proposed § 702.911 also provides that 

penalties agreed upon in settlement 

agreements may be collected and 

recovered pursuant to § 702.912. This is 

to ensure that the Department has a 

mechanism for collecting agreed-upon 

payments. OWCP welcomes comment 

on this proposed paragraph, and 

specifically whether settlement 

agreements should be made public 

when transmitted to the Deputy Director 

for Longshore Claims. 

Section 702.912 Collection and 

Recovery of Penalty 

Paragraph (a) of proposed § 702.912 

provides that, when a penalty becomes 

final under § 702.905(d), 702.907(f), 

702.909(a)(1), 702.910, or 702.911, the 

penalty is immediately due and payable 

to the Department on behalf of the 

special fund described in 33 U.S.C. 944. 

Paragraph (b) provides that, if payment 

is not received within 30 days after it 

becomes due and payable, it may be 

recovered by a civil action brought by 

the Secretary, who will be represented 

by the Solicitor of Labor. 

V. Legal Basis for the Proposed Rule 

Section 39(a) of the LHWCA, 33 

U.S.C. 939(a)(1), authorizes the 

Secretary of Labor to prescribe rules and 

regulations necessary for the 

administration of the Act. The statute 

further allows OWCP to impose a 

penalty when an employer or insurance 

carrier fails to timely report a workrelated injury or death, 33 U.S.C. 930(e), 

or fails to timely report its final payment 

of compensation to a claimant, 33 U.S.C. 

914(g). This proposed rule would 

effectuate these statutory provisions and 

falls well within these statutory grants 

of authority. 

VI. Information Collection 

Requirements 

The Paperwork Reduction Act of 1995 

(PRA), 44 U.S.C. 3501 et seq., and its 

implementing regulations, 5 CFR part 

1320, require that the Department 

consider the impact of paperwork and 

other information collection burdens 

imposed on the public. A Federal 

agency generally cannot conduct or 

sponsor a collection of information, and 

the public is generally not required to 

respond to an information collection, 

unless it is approved by the Office of 

Management and Budget (OMB) under 

the PRA and displays a currently valid 

OMB Control Number. In addition, 

notwithstanding any other provisions of 

law, an agency generally may not 

subject a person to penalty for failing to 

comply with a collection of information 

that does not display a valid Control 

Number. See 5 CFR 1320.5(a) and 

1320.6. 

This proposed rule would not change 

any existing collections of information 

or generate any new collections of 

information. The forms for the first 

report of injury and notice of final 

payment are already approved under 

OMB Control Numbers 1240–0003 and 

1240–0041, respectively. The 

information that respondents would 

submit to OWCP under this proposal 

would be in response to specific notices 

of proposed penalties and penalty 

orders. It would therefore fall under the 

exemption for requests for facts or 

opinions addressed to a single person. 

See 5 CFR 1320.3(h)(6). 

VII. Executive Orders 12866, 13563, 

and 14094 (Regulatory Planning and 

Review) 

Under E.O. 12866, OMB’s Office of 

Information and Regulatory Affairs 

determines whether a regulatory action 

is significant and, therefore, subject to 

the requirements of the E.O. and review 

by OMB. See 58 FR 51735 (Oct. 4, 1993). 

Section 1(b) of E.O. 14094 amends sec. 

3(f) of E.O. 12866 to define a 

‘‘significant regulatory action’’ as an 

action that is likely to result in a rule 

that may (1) have an annual effect on 

the economy of $200 million or more 

(adjusted every 3 years by the 

Administrator of the Office of 

Information and Regulatory Affairs 

(OIRA) for changes in gross domestic 

product) or adversely affects in a 

material way the economy, a sector of 

the economy, productivity, competition, 

jobs, the environment, public health or 

safety, or State, local, territorial, or tribal 

governments or communities; (2) create 

a serious inconsistency or otherwise 

interfere with an action taken or 

planned by another agency; (3) 

materially alter the budgetary impacts of 

entitlements, grants, user fees, or loan 

programs, or the rights and obligations 

of recipients thereof; or (4) raise legal or 

policy issues for which centralized 

review would meaningfully further the 

President’s priorities or the principles 

set forth in the E.O. See 88 FR 21879 

(Apr. 11, 2023). This proposal would 

clarify the process for assessing and 

appealing penalties and is largely 

consistent with practices already in 

OWCP’s procedural manual. As such, 

this proposal is not likely to generate 

additional costs to the regulated 

community. OIRA has determined that 

this proposed rule is not a significant 

regulatory action under sec. 3(f)(1) of 

E.O. 12866, so it has not reviewed it 

prior to publication. 

Executive Order 13563 emphasizes 

the importance of quantifying both costs 

and benefits, reducing costs, 

harmonizing rules, and promoting 

flexibility. It directs agencies to, among 

other things, propose or adopt a 

regulation only upon a reasoned 

determination that its benefits justify its 

costs; that it is tailored to impose the 

least burden on society, consistent with 

obtaining the regulatory objectives; and 

that, in choosing among alternative 

regulatory approaches, the agency has 

selected those approaches that 

maximize net benefits. Executive Order 

13563 recognizes that some costs and 

benefits are difficult to quantify and 

provides that, when appropriate and 

permitted by law, agencies may 

consider and discuss qualitatively 

values that are difficult or impossible to 

quantify, including equity, human 

dignity, fairness, and distributive 

impacts. 

The Department has considered this 

proposed rule with these principles in 

mind and has concluded that, if 

adopted, the regulated community 

would benefit from this regulation. 

Promulgating procedural rules related to 

civil money penalties would benefit 

employers (and their insurance carriers) 

against whom OWCP may assess 

penalties. Currently, the regulations 

contain no set procedures for employers 

to challenge penalties, which can lead 

to procedural decisions being made on 

a case-by-case basis. The proposed rules 


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would establish a transparent and 

consistent pathway for assessment and 

adjudication of penalties: clear notice of 

the proposed penalty and an 

opportunity to contest it; hearing by an 

administrative law judge upon request; 

the opportunity to petition the Secretary 

for discretionary review; and a stay of 

payment for the penalty assessed until 

review is complete and the decision 

becomes final. These procedures would 

clearly protect an employer’s rights to 

be fully heard before having to pay a 

penalty and promote consistency and 

fairness across different districts and 

regions. 

VIII. Unfunded Mandates Reform Act 

of 1995 

Title II of the Unfunded Mandates 

Reform Act of 1995 (2 U.S.C. 1531 et 

seq.) directs agencies to assess the 

effects of Federal regulatory actions on 

state, local, and tribal governments, and 

the private sector, ‘‘other than to the 

extent that such regulations incorporate 

requirements specifically set forth in 

law.’’ This proposed rule does not 

include any Federal mandate that may 

result in increased expenditures by 

state, local, and tribal governments, or 

increased expenditures by the private 

sector of more than $100,000,000 (in 

1995 dollars). It is therefore not covered 

by the Unfunded Mandates Reform Act. 

IX. Regulatory Flexibility Act and 

Executive Order 13272 (Proper 

Consideration of Small Entities in 

Agency Rulemaking) 

The Regulatory Flexibility Act of 

1980, as amended (5 U.S.C. 601 et seq.) 

(RFA), requires an agency to prepare a 

regulatory flexibility analysis when it 

proposes regulations that will have ‘‘a 

significant economic impact on a 

substantial number of small entities’’ or 

to certify that the proposed regulations 

will have no such impact, and to make 

the analysis or certification available for 

public comment. 

The Department has determined that 

a regulatory flexibility analysis under 

the RFA is not required for this 

rulemaking. While many longshore 

employers and a handful of insurance 

carriers may be small entities within the 

meaning of the RFA, see generally 77 FR 

19471–72 (March 30, 2012), this 

proposed rule, if adopted as a final rule, 

will not have a significant economic 

impact on them. The procedures related 

to penalties generally simply provide 

additional structure and consistency to 

the assessment of penalties. While 33 

U.S.C. 914(g) does not allow any 

discretion on the part of the agency, 

OWCP will take small entity status into 

account as a mitigating factor for 

penalties assessed under 33 U.S.C. 

930(e). See 5 U.S.C. 601 note § 223(b) 

(limiting the mitigation provisions in 

section 223 of the Small Business 

Regulatory Enforcement Fairness Act to 

be subject to ‘‘the requirements or 

limitations of other statutes.’’) See 

proposed § 702.208(c)(6). 

The Department therefore certifies 

that this proposed rule would not have 

a significant economic impact on a 

substantial number of small entities. 

Thus, an initial regulatory flexibility 

analysis is not required. The 

Department, however, invites comments 

from members of the public who believe 

the proposed rule would have a 

significant economic impact on a 

substantial number of small longshore 

employers or insurers. The Department 

has provided the Chief Counsel for 

Advocacy of the Small Business 

Administration with a copy of this 

certification. See 5 U.S.C. 605(b). 

X. Executive Order 13132 (Federalism) 

The Department has reviewed this 

proposed rule in accordance with 

Executive Order 13132 regarding 

federalism and has determined that it 

does not have ‘‘federalism 

implications.’’ The proposed rule will 

not ‘‘have 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’’ if promulgated as 

a final rule. 

List of Subjects in 20 CFR Part 702 

Administrative practice and 

procedure, Claims, Longshore and 

harbor workers, Workers’ compensation. 

For the reasons set forth in the 

preamble, the Department of Labor 

proposes to amend 20 CFR part 702 as 

follows: 

PART 702—ADMINISTRATION AND 

PROCEDURE 

■ 1. The authority citation for part 702 

continues to read as follows: 

Authority: 5 U.S.C. 301, and 8171 et seq.; 

33 U.S.C. 901 et seq.; 42 U.S.C. 1651 et seq.; 

43 U.S.C. 1333; 28 U.S.C. 2461 note (Federal 

Civil Penalties Inflation Adjustment Act of 

1990); Pub. L. 114–74 at sec. 701; 

Reorganization Plan No. 6 of 1950, 15 FR 

3174, 64 Stat. 1263; Secretary’s Order 10– 

2009, 74 FR 58834. 

■ 2. Revise § 702.204 to read as follows: 

§ 702.204 Employer’s report; penalty for 

failure to furnish and or falsifying. 

(a) Any employer, insurance carrier, 

or self-insured employer who 

knowingly and willfully fails or refuses 

to send any report required by 

§ 702.201, or who knowingly or 

willfully makes a false statement or 

misrepresentation in any report, shall be 

subject to a civil penalty not to exceed 

$28,304 for each such failure, refusal, 

false statement, or misrepresentation for 

which penalties are assessed after 

January 15, 2023. 

(1) An entity knowingly fails or 

refuses to send a report required by 

§ 702.201 when it has actual knowledge, 

or reasonably should have known, of the 

employee’s injury or death, that the 

injury or death is likely covered by the 

Act, that a report is required, and that 

a report was not timely filed. 

(2) An entity willfully fails or refuses 

to send a report required by § 702.201 

when it intentionally disregards the 

reporting requirement or is plainly 

indifferent to the reporting requirement. 

(3) An entity knowingly makes a false 

statement or misrepresentation in any 

report required by § 702.201 when it has 

actual knowledge, or reasonably should 

have known, that information it 

provides in the report is untrue, 

incomplete, or misleading. 

(4) An entity willfully makes a false 

statement or misrepresentation in any 

report required by § 702.201 when it 

intentionally disregards or exhibits 

plain indifference to the truth. 

(5) Proof of a false statement or 

misrepresentation made either 

knowingly or willfully in a report 

required by § 702.201 is sufficient to 

warrant imposition of a penalty under 

this section. 

(b) In determining the penalty amount 

under paragraph (a) of this section, the 

number of penalties, if any, that have 

been assessed against the employer, 

insurance carrier, self-insured employer, 

or self-insured employer group in the 

two years preceding the most recent 

reporting violation will be considered. 

The baseline penalty will be in 

accordance with the following table and 

rounded up to the next dollar. 

TABLE 1 TO PARAGRAPH (b) 

Number of violations 

Baseline 

(unadjusted) 

penalty as a 

percentage 

of statutory 

maximum 

First missing/falsified report: 5 

Second missing/falsified report: ................................... 10 

Third missing/falsified report: 20 

Fourth missing/falsified report: ................................... 40 

Fifth missing/falsified report: 80 

Sixth (and above) missing/ 

falsified report: .................. 100 

■ 3. Add § 702.206 to read as follows: 


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§ 702.206 Notice of failure to timely submit 

accurate report. 

(a) When OWCP receives information 

that indicates an injury or death has 

occurred on a particular date but has not 

received a first report of injury or death 

as required by § 702.201, the District 

Director will send a notice to the 

employer that: 

(1) Describes the evidence that 

indicates a covered injury or death 

occurred on a particular date; 

(2) Notifies the employer of its 

responsibility to file a report within 10 

days of that date; 

(3) Requests an explanation for the 

failure to file a report within the 

required time limit; 

(4) Notifies the employer that it may 

be subject to a penalty if its failure to 

timely submit a report is knowing and 

willful; and 

(5) Instructs the employer that it must 

file the required report no later than ten 

days after receipt of the notice. 

(b) If the employer does not file the 

required report within ten days of 

receipt of the notice described in 

paragraph (a) of this section, the District 

Director will send a second notice to the 

employer that: 

(1) Notifies the employer that its 

failure to file the required report after 

receipt of the notice described in 

paragraph (a) of this section constitutes 

evidence that its failure to timely submit 

a report is knowing and willful; 

(2) Requests an explanation for the 

failure to file a report within the 

required time limit and reasons why the 

full penalty amount should not be 

assessed against the employer, 

including documentation supporting 

any mitigating factors claimed under 

§ 702.208(c); and 

(3) Instructs the employer that its 

response should be filed within 30 days 

of receipt of the notice. 

(c) When OWCP receives a report 

filed more than ten days from the date 

of an employee’s injury or death or the 

date an employer has knowledge of an 

employee’s injury or death, and the 

District Director has not already sent a 

notice under paragraph (a) of this 

section, the District Director may notify 

the employer of its responsibility to file 

a report within ten days of that date. If 

the District Director preliminarily 

determines the failure to timely file was 

knowing and willful, this notice will 

also request an explanation for the 

failure to file a report within the 

required time limit and request the 

employer’s reasons why the full penalty 

amount should not be assessed against 

the employer, including documentation 

supporting any mitigating factors 

claimed under § 702.208(c), and instruct 

the employer that its response should be 

filed within 30 days of receipt of the 

notice. 

(d) When OWCP receives a report 

required by § 702.201 containing a false 

statement or misrepresentation, the 

District Director will send a notice to 

the employer that 

(1) Describes the evidence that 

indicates the report contains a false 

statement or misrepresentation; 

(2) Notifies the employer that it may 

be subject to a penalty if the false 

statement or misrepresentation was 

made knowingly or willfully; 

(3) Requests an explanation for the 

false statement or misrepresentation and 

reasons why the full penalty amount 

should not be assessed against the 

employer; and 

(4) Instructs the employer that its 

response should be filed within 30 days 

of the date of the letter. 

■ 4. Add § 702.207 to read as follows: 

§ 702.207 Consideration of response; 

notice of proposed penalty. 

(a) The District Director will consider 

the employer’s responses, if any, to the 

notices described in § 702.206, as well 

as any other information the District 

Director has about the injury or the 

respondent, to determine whether the 

failure, refusal, false statement, or 

misrepresentation was knowing or 

willful as set forth in § 702.204. 

(b) If the District Director determines 

that the failure to file a timely report 

was knowing and willful, or the false 

statement or misrepresentation in such 

a report was knowing or willful, the 

District Director will issue a notice of 

proposed penalty. The Director has the 

authority and responsibility for 

assessing a penalty using the procedures 

set forth at subpart I of this part. 

■ 5. Add § 702.208 to read as follows: 

§ 702.208 Special considerations in setting 

penalty amounts. 

(a) In proposing and setting penalty 

amounts, the District Director and 

Director may, consistent with the 

maximum penalty set forth in § 702.204, 

consider aggravating and mitigating 

factors. 

(b) The Director may consider the 

following aggravating factors in 

determining whether to increase the 

proposed penalty amount: 

(1) Extent of delay in filing the report; 

(2) Attempts to conceal the injury or 

death; 

(3) Failure to timely pay 

compensation due the claimant; 

(4) Failure to submit information 

sufficient to determine whether the 

correct compensation has been paid; 

(5) Any prior settlements of penalties 

assessed by the Director; 

(6) Any outstanding proposed 

penalties assessed against the entity; 

(7) Any prior penalties assessed 

against an entity’s parent company or 

subsidiary; and 

(8) Any other factors relevant to the 

respondent’s conduct with respect to 

the contents of the report. 

(c) The Director may consider the 

following mitigating factors in 

determining whether to reduce the 

proposed penalty amount: 

(1) Bringing the failure to comply 

with the Act or regulations to the 

District Director’s attention; 

(2) Full payment of the correct 

amount of compensation to the 

claimant; 

(3) Timely compliance with the 

District Director’s requests once failure 

to comply with the Act or regulations 

was brought to their attention; 

(4) History of compliance with the Act 

and the regulations of this subchapter; 

(5) A mass casualty event preventing 

the timely filing in all related cases; 

(6) Whether the respondent is a 

‘‘small entity’’ within the meaning of 

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

601(6); and 

(7) Any other relevant factors. 

■ 6. Revise the section heading of 

§ 702.233 to read as follows: 

§ 702.233 Additional compensation for 

failure to pay without an award. 

■ 7. Revise § 702.236 to read as follows: 

§ 702.236 Penalty for failure to report 

termination of payments. 

Any employer failing to notify the 

District Director that the final payment 

of compensation has been made as 

required by § 702.235 shall be assessed 

a civil penalty in the amount of $345 for 

any violation for which penalties are 

assessed after January 15, 2023. The 

Director has the authority and 

responsibility for assessing this penalty 

using the procedures set forth at subpart 

I of this part. 

■ 8. Revise § 702.274 to read as follows: 

§ 702.274 Employer’s refusal to pay 

penalty. 

In the event the employer refuses to 

pay the penalty assessed after it 

becomes final as set forth in subpart I of 

this part, the District Director shall refer 

the complete administrative file to the 

Deputy Director for Longshore Claims, 

Division of Federal Employees’, 

Longshore and Harbor Workers’ 

Compensation, for subsequent 

transmittal to the Associate Solicitor for 

Black Lung and Longshore Legal 

Services, with the request that 

appropriate legal action be taken to 

recover the penalty. 

■ 8. Add subpart I to read as follows: 


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62490 Federal Register / Vol. 88, No. 175 / Tuesday, September 12, 2023 / Proposed Rules 

Subpart I—Procedures for Civil Money 

Penalties 

Sec. 

702.901 Scope of this subpart. 

702.902 Definitions. 

702.903 Notice of proposed penalty; 

response; consequences of no response. 

702.904 Preliminary decision on notice of 

proposed penalty after timely response. 

702.905 Director’s penalty order; request for 

hearing. 

702.906 Referral to the Office of 

Administrative Law Judges. 

702.907 Decision and order of 

Administrative Law Judge. 

702.908 Review by the Secretary. 

702.909 Discretionary review. 

702.910 Final decision of the Secretary. 

702.911 Settlement of penalty. 

702.912 Collection and recovery of penalty. 

§ 702.901 Scope of this subpart. 

These procedures apply to the 

proposal, assessment, and adjudication 

of the civil money penalties prescribed 

by § 702.204 or § 702.236. 

§ 702.902 Definitions. 

In addition to the definitions 

provided in §§ 701.301 and 701.302, the 

following definition applies to this 

subpart: 

Respondent means the employer, 

insurance carrier, or self-insured 

employer against whom the District 

Director is seeking to assess a civil 

penalty. 

§ 702.903 Notice of proposed penalty; 

response; consequences of no response. 

(a) The District Director will serve a 

written notice of proposed penalty 

through an electronic method 

authorized by OWCP or by trackable 

delivery method on each respondent 

against whom they are considering 

assessing a penalty. Where service is not 

accepted by a respondent, the notice 

will be deemed received by the 

respondent on the attempted date of 

delivery. 

(b) The notice must set forth the— 

(1) Facts giving rise to the proposed 

penalty; 

(2) Statutory and regulatory basis for 

the proposed penalty; 

(3) Amount of the proposed penalty, 

including an explanation for the amount 

proposed; 

(4) Instructions for including 

documentation in the response, as set 

forth in paragraph (d) of this section; 

and 

(5) Consequences of failing to timely 

respond to the notice as set forth in 

paragraph (e) of this section. 

(c) The respondent must respond 

within 30 days of receipt of the notice. 

The response may include— 

(1) Any explanation for why the full 

proposed penalty amount should not be 

assessed; and 

(2) Documentation relevant to the 

factual basis for the penalty, including 

any mitigating factors under § 702.208. 

(d) If the respondent does not respond 

within 30 days of receipt of the notice, 

the District Director will submit the 

notice of proposed penalty to the 

Director as a preliminary decision. 

§ 702.904 Preliminary decision on notice 

of proposed penalty after timely response. 

If the respondent files a timely 

response to the notice described in 

§ 702.903, the District Director will 

review the facts and any argument 

presented in the response, revise the 

proposed penalty amount, if warranted, 

and submit the revised notice of 

proposed penalty to the Director as a 

preliminary decision. 

§ 702.905 Director’s penalty order; request 

for hearing. 

(a) The Director will consider the 

District Director’s preliminary decision 

and issue a Director’s penalty order no 

more than 30 days after receipt of the 

District Director’s preliminary decision. 

The Director’s penalty order must— 

(1) Include a statement of the reasons 

for the assessment, including an 

evaluation of any mitigating or 

aggravating factors considered, and the 

amount of the penalty; 

(2) Set forth the respondent’s right to 

request a hearing on the Director’s 

penalty order and the method for doing 

so; and 

(3) Set forth the consequences of 

failing to timely request a hearing as set 

forth in paragraph (d) of this section. 

(b) The respondent has 15 days from 

receipt of the Director’s penalty order to 

request a hearing before an 

Administrative Law Judge by filing a 

request for hearing with the District 

Director. The request must— 

(1) Be typewritten or legibly written; 

(2) State the specific determinations 

in the Director’s penalty order with 

which the respondent disagrees; 

(3) Be signed and dated by the 

respondent making the request or by the 

respondent’s authorized representative; 

(4) State both the physical mailing 

address and electronic mailing address 

for the respondent and the authorized 

representative for receipt of further 

communications. 

(c) A timely hearing request will 

operate to stay collection of the penalty 

until final resolution of the penalty is 

reached by the Administrative Law 

Judge or the Secretary, as appropriate. 

(d) If the respondent does not request 

a hearing within 15 days of receipt of 

the Director’s penalty order, the 

assessment and amount of the penalty 

set forth in the Director’s penalty order 

will be deemed a final decision of the 

Secretary. 

§ 702.906 Referral to the Office of 

Administrative Law Judges. 

(a) When the District Director receives 

a request for hearing in response to a 

Director’s penalty order issued under 

§ 702.905, the District Director will 

notify the Chief Administrative Law 

Judge, who will assign an 

Administrative Law Judge to the case. 

The District Director will also forward 

to the Office of Administrative Law 

Judges the following documentation, 

which will be considered the 

administrative record: 

(1) The District Director’s notice of 

proposed penalty and preliminary 

decision issued under §§ 702.903 and 

702.904; 

(2) The documentation upon which 

the District Director relied in issuing the 

notice of proposed penalty and 

preliminary decision; 

(3) All written responses and 

documentation filed by the respondent 

with the District Director; 

(4) The Director’s penalty order; 

(5) The documentation upon which 

the Director relied in issuing the penalty 

order; and 

(6) The respondent’s request for 

hearing. 

(b) Except as otherwise provided in 

this subpart, the Rules of Practice and 

Procedure for Administrative Hearings 

Before the Office of Administrative Law 

Judges at 29 CFR part 18 will apply to 

hearings under this subpart. 

§ 702.907 Decision and order of 

Administrative Law Judge. 

(a) In reviewing the Director’s penalty 

order, the Administrative Law Judge 

must limit their determinations to: 

(1) Whether the respondent has 

violated the sections of the Act and 

regulations under which the penalty 

was assessed; 

(2) The appropriateness of the penalty 

assessed as set forth in §§ 702.204, 

702.236, 702.271, and 702.903(c)(2). 

(b) Documentation not presented to 

the District Director may not be 

admitted in any further proceedings 

before an Administrative Law Judge 

unless the Administrative Law Judge 

finds that the failure to submit the 

documentation to the District Director 

should be excused due to extraordinary 

circumstances. 

(c) The decision of the Administrative 

Law Judge must include a statement of 

findings and conclusions, with reasons 

and bases therefor, instructions for filing 

a motion for reconsideration with the 

Administrative Law Judge, and 

instructions for filing a petition for 

review with the Secretary. 


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(d) On the date of issuance, the 

Administrative Law Judge must deliver 

a copy of the decision and order on the 

District Director for service on the 

parties. 

(e) Any party may ask the 

Administrative Law Judge to reconsider 

their decision by filing a motion within 

30 days of the date the District Director 

serves the decision. A timely motion for 

reconsideration will suspend the 

running of the time for any party to file 

a petition for review under § 702.908 

until the date the motion for 

reconsideration is denied or 30 days 

after a new decision is issued. 

(f) If no party files a motion for 

reconsideration or petition for review 

within 30 days of the date the District 

Director serves the Administrative Law 

Judge’s decision, or if any such motions 

or petitions are denied, the decision will 

be deemed a final decision of the 

Secretary. 

(g) At the conclusion of all hearing 

proceedings, the Administrative Law 

Judge will forward the complete hearing 

record to the District Director who 

referred the matter for hearing, who will 

retain custody of the record. 

§ 702.908 Review by the Secretary. 

(a) Any party aggrieved by the 

decision of the Administrative Law 

Judge may petition the Secretary for 

review of the decision by filing a 

petition within 30 days of the date on 

which the District Director serves the 

decision. Copies of the petition must be 

served on all parties and on the Chief 

Administrative Law Judge. 

(b) If any party files a timely motion 

for reconsideration under § 702.907(e), 

any petition for review filed before 

service of a decision on reconsideration, 

whether filed prior to or subsequent to 

the filing of a timely motion for 

reconsideration, will be dismissed 

without prejudice as premature. The 30- 

day time limit for filing a petition for 

review by any party will begin upon 

service of a decision on reconsideration. 

(c) The petition for review must— 

(1) Be typewritten or legibly written; 

(2) State the specific determinations 

in the Administrative Law Judge’s 

decision with which the party disagrees; 

(3) Be signed and dated by the party 

or the party’s authorized representative; 

and 

(4) Include attached copies of the 

Administrative Law Judge’s decision 

and any other documents admitted into 

the record by the Administrative Law 

Judge that would assist the Secretary in 

determining whether review is 

warranted. 

(d) All documents submitted to the 

Secretary, including a petition for 

review, must be filed with the Secretary 

of Labor, U.S. Department of Labor, 200 

Constitution Ave. NW, Washington, DC 

20210, in the manner specified in the 

Administrative Law Judge’s decision 

and order. Documents are not 

considered filed with the Secretary until 

actually received. 

§ 702.909 Discretionary review. 

(a) Following receipt of a timely 

petition for review, the Secretary will 

determine whether the Administrative 

Law Judge’s decision warrants review. 

This determination is solely within the 

Secretary’s discretion. The Secretary 

will send written notice of their 

determination to all parties. 

(1) If the Secretary does not notify the 

parties within 30 days of the petition for 

review’s filing that they will review the 

decision, the Administrative Law 

Judge’s decision will be considered the 

final decision of the agency at the 

expiration of that 30 days. 

(2) If the Secretary decides to review 

the decision, the Secretary will notify 

the parties within 30 days of the 

petition for review’s filing of the issue 

or issues to be reviewed and set a 

schedule for the parties to submit 

written argument in whatever form the 

Secretary deems appropriate. 

(b) If the Secretary decides to review 

the decision, the District Director must 

forward the administrative record 

compiled before the Administrative Law 

Judge to the Secretary. 

§ 702.910 Final decision of the Secretary. 

The Secretary’s review is limited to 

the hearing record. The findings of fact 

in the decision under review shall be 

conclusive if supported by substantial 

evidence in the record as a whole. The 

Secretary’s review of conclusions of law 

will be de novo. Upon review of the 

decision, the Secretary may affirm, 

reverse, modify, or vacate the decision, 

and may remand the case to the Office 

of Administrative Law Judges for further 

proceedings. The Secretary’s final 

decision must be served upon all parties 

and the Chief Administrative Law 

Judge. 

§ 702.911 Settlement of penalty. 

At any time during proceedings under 

this subpart, the Director or District 

Director and the respondent may enter 

into a settlement of any proposed or 

assessed penalties. Upon settlement, the 

District Director or Director will 

transmit a copy of the settlement 

agreement to the Deputy Director for 

Longshore Claims. Any settlement 

agreement under this subpart may be 

considered as an aggravating factor 

under any future proceedings under this 

subpart. Penalties agreed upon in 

settlement agreements may be collected 

and recovered pursuant to § 702.912. 

§ 702.912 Collection and recovery of 

penalty. 

(a) When the determination of the 

amount of the penalty becomes final 

(see §§ 905(d), 907(f), 909(a)(1), 910, 

911), the penalty is immediately due 

and payable to the U.S. Department of 

Labor on behalf of the special fund 

described in section 44 of the Act, 33 

U.S.C. 944. The respondent will 

promptly remit the final penalty 

imposed to the Secretary of Labor by 

either check or automated clearinghouse 

(ACH). 

(b) If such remittance is not received 

within 30 days after it becomes due and 

payable, it may be recovered in a civil 

action brought by the Secretary in any 

court of competent jurisdiction, in 

which litigation the Secretary will be 

represented by the Solicitor of Labor. 

Signed at Washington, DC, this 5th day of 

September 2023. 

Christopher Godfrey, 

Director, Office of Workers’ Compensation 

Programs. 

[FR Doc. 2023–19422 Filed 9–11–23; 8:45 am] 

BILLING CODE 4510–CR–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Parts 140 and 146 

46 CFR Parts 4 and 109 

[Docket No. USCG–2013–1057] 

RIN 1625–AB99 

Marine Casualty Reporting on the 

Outer Continental Shelf 

AGENCY: Coast Guard, DHS. 

ACTION: Supplemental notice of 

proposed rulemaking; extension of 

comment period. 

SUMMARY: The Coast Guard is extending 

the comment period for the 

supplemental notice of proposed 

rulemaking, ‘‘Marine Casualty Reporting 

on the Outer Continental Shelf,’’ 

published June 14, 2023, that seeks 

comments on proposed changes to 

reporting criteria for certain casualties 

on the outer continental shelf (OCS) and 

a proposed increase to property damage 

dollar threshold that triggers a casualty 

report for fixed facilities on the OCS. 

We are extending the comment period 

an additional 60 days to allow the 

public more time to comment. The 


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