Longshore and Harbor Workers' Compensation Act: Electronic Filing, Settlement, and Civil Money Penalty Procedures

Citation85 FR 80698
Record Number2020-23224
Published date14 December 2020
CourtWorkers' Compensation Programs Office
Federal Register, Volume 85 Issue 240 (Monday, December 14, 2020)
[Federal Register Volume 85, Number 240 (Monday, December 14, 2020)]
                [Proposed Rules]
                [Pages 80698-80712]
                From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
                [FR Doc No: 2020-23224]
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                DEPARTMENT OF LABOR
                Office of Workers' Compensation Programs
                20 CFR Part 702
                RIN 1240-AA13
                Longshore and Harbor Workers' Compensation Act: Electronic
                Filing, Settlement, and Civil Money Penalty Procedures
                AGENCY: Office of Workers' Compensation Programs, Labor.
                ACTION: Notice of proposed rulemaking; request for comments.
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                SUMMARY: The Office of Workers' Compensation Programs (OWCP)
                administers the Longshore and Harbor Workers' Compensation Act and its
                extensions. To improve program administration, OWCP proposes to amend
                its existing regulations to require parties to file documents
                electronically, unless otherwise provided by statute or allowed by
                OWCP, and to streamline the settlement process. Additionally, to
                promote accountability and ensure fairness, OWCP proposes new rules for
                imposing and reviewing civil money penalties prescribed by the
                Longshore Act. The new rules will set forth the procedures to contest
                OWCP's penalty determinations.
                DATES: The Department invites written comments on the proposed
                regulations from interested parties. Written comments must be received
                by February 12, 2021.
                ADDRESSES: You may submit written comments, identified by RIN number
                1240-AA13, by any of the following methods. To facilitate the receipt
                and processing of comments, OWCP encourages interested parties to
                submit such comments electronically.
                 Federal eRulemaking Portal: http://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 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 http://www.regulations.gov, including any personal information provided.
                 Docket: For access to the docket to read background documents or
                comments received, go to http://www.regulations.gov.
                FOR FURTHER INFORMATION CONTACT: Antonio Rios, Director, Division of
                Longshore and Harbor Workers' Compensation, Office of Workers'
                Compensation Programs, (202)-693-0040, [email protected]. TTY/TDD
                callers may dial toll free 1-877-889-5627 for further information.
                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 D.C. 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. OWCP has identified three areas where improvements can be made.
                The first is expanding electronic filing and requiring private parties
                to transmit all documents and information to OWCP electronically,
                except when the individual does not have a computer, lacks access to
                the internet, or lacks the ability to utilize the internet. Receiving
                documents and information in electronic form speeds claims
                administration and simplifies recordkeeping requirements. The second is
                streamlining settlement procedures. This too should speed the
                settlement-approval process and lessen the parties' burdens to submit
                multiple documents to have a settlement considered. Finally, OWCP is
                updating its existing penalty regulations and filling a gap by
                proposing a procedural scheme for employers to challenge penalties
                assessed against them. These rules will better apprise employers of
                their obligations and give them a clear path to exercise their rights
                to challenge any penalty imposed by OWCP.
                 On April 28, 2020, OWCP hosted a public outreach webinar to solicit
                stakeholders' views on how OWCP could improve its processes in the
                three areas covered in this rulemaking. See E.O. 13563, sec. 2(c)
                (January 18, 2011) (requiring public consultation prior to issuing a
                proposed regulation). OWCP has considered the feedback received during
                that session in developing the proposed rules.
                 This rule is not an Executive Order 13771 regulatory action because
                it is not significant under Executive Order 12866.
                II. Direct Final Rulemaking
                 In addition to this Notice of Proposed Rulemaking (NPRM), OWCP is
                concurrently publishing a companion direct final rule (DFR) elsewhere
                in this issue of the Federal Register. In direct final rulemaking, an
                agency publishes a DFR in the Federal Register with a statement that
                the rule will go into effect unless the agency receives significant
                adverse comment within a specified period. The agency concurrently
                publishes an identical proposed rule. If the agency receives no
                significant adverse comment in response to the DFR, the rule goes into
                effect. If the agency receives significant adverse comment, the agency
                withdraws the DFR and treats such comment as submissions on the
                proposed rule. An agency typically uses direct final rulemaking when it
                anticipates the rule will be non-controversial.
                 By simultaneously publishing this NPRM with a DFR, notice-and-
                comment rulemaking will be expedited if OWCP receives significant
                adverse comment and withdraws the DFR. The proposed and direct final
                rules are substantively identical, and their respective comment
                [[Page 80699]]
                periods run concurrently. OWCP will treat comment received on the NPRM
                as comment regarding the companion DFR and vice versa. Thus, if OWCP
                receives significant adverse comment on either the NPRM or the DFR,
                OWCP will publish a Federal Register notice withdrawing the DFR and
                will proceed with this proposed rule.
                 For purposes of the DFR, a significant adverse comment is one that
                explains why the rule (1) is inappropriate, including challenges to the
                rule's underlying premise or approach; or (2) will be ineffective or
                unacceptable without a change. In determining whether a significant
                adverse comment necessitates withdrawal of the DFR, OWCP 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 DFR would be ineffective without the addition.
                 OWCP requests comments on all issues related to this rule,
                including economic or other regulatory impacts on the regulated
                community.
                III. Overview of the Proposed Rule
                A. Electronic Transmission of Documents and Information and Electronic
                Signatures
                 The Department's current regulations implementing the LHWCA at 20
                CFR part 702 allow OWCP and private parties to exchange documents and
                information through certain electronic methods or in paper form, at the
                sender's option. 20 CFR 702.101. The Department added optional
                electronic transmission to the regulations in 2015. 80 FR 12917-33
                (March 12, 2015). Since then, OWCP has continued to expand its use of
                electronic case files and is working towards a fully electronic case-
                file environment.
                 Electronic case files have many advantages, including allowing
                claims staff remote access to documents and information; efficient case
                file transmission to the Office of Administrative Law Judges, the
                Benefits Review Board, and other tribunals; elimination of possible
                mail-handling delays due to unforeseen weather or other events, safety
                restrictions, and the like; and cost savings in reduced copying,
                scanning, and storage of paper documents. Electronic filing methods are
                ubiquitous, and the public generally is very familiar with them. In
                addition to the substantial business conducted in a fully electronic
                environment, government agencies and court systems routinely use
                electronic transmission systems to receive documents and information.
                In fact, OWCP estimates that more than 80 percent of all documents it
                now receives in the Longshore program are transmitted electronically by
                the private parties.
                 For these reasons, the Department is now proposing a rule that
                would require all private parties transmitting documents and
                information to OWCP to do so electronically except when a district
                director allows a different filing method because the individual does
                not have a computer, lacks access to the internet, or lacks the ability
                to utilize the internet. The exception is consistent with the E-
                Government Act of 2002's directive that agencies must ensure the
                continued availability of services for persons who do not have
                computers or internet access. Sec. 202(c), Public Law 107-347, 116
                Stat. 2899, 2911 (44 U.S.C. 3501 note). OWCP envisions a simple process
                for requesting relief under the exception and will allow individuals to
                self-certify their inability to use electronic filing. OWCP is unaware
                of any law that would prohibit it from making electronic filing
                mandatory for all other parties.
                 In proposing this rule, OWCP has considered the principles
                underlying the Government Paperwork Elimination Act (GPEA), 44 U.S.C.
                3504, and the Electronic Signatures in Global and National Commerce Act
                (E-SIGN), 15 U.S.C. 7001 et seq. GPEA requires agencies, when
                practicable, to store documents electronically and to allow individuals
                and entities to communicate with agencies electronically. The GPEA also
                provides that electronic documents and signatures will not be denied
                legal effect merely because of their electronic form. Similarly, E-SIGN
                generally provides that electronic documents have the same legal effect
                as their hard copy counterparts and allows electronic records to be
                used in place of hard copy documents with appropriate safeguards. 15
                U.S.C. 7001. Under E-SIGN, federal agencies retain the authority to
                specify the means by which they receive documents, 15 U.S.C. 7004(a),
                and to modify the disclosures required by Section 101(c), 15 U.S.C.
                7001(c), under appropriate circumstances.
                 Moreover, by 2022, the National Archives and Records Administration
                (NARA) will, to the fullest extent possible, no longer accept temporary
                or permanent records from agencies in a non-electronic format. See
                National Archives and Records Administration, 2018-2022 Strategic Plan
                at 12 (Feb. 2018); Delivering Government Solutions in the 21st Century
                at 22, 100-102 (June 21, 2018). Requiring electronic filings now will
                make more efficient OWCP's compliance with NARA's recordkeeping
                directives.
                 The proposed rules would also allow the use of electronically
                signed documents consistent with E-SIGN. In April 2020, the Longshore
                program began accepting documents signed using certain electronic
                methods. See Industry Notice No. 179 (April 20, 2020) https://www.dol.gov/owcp/dlhwc/lsindustrynotices/industrynotice179.pdf. This
                rule would codify that practice. Allowing the use of improvements in
                signature technology will facilitate an easier and faster exchange of
                documents between parties and OWCP. The use of electronic signatures is
                voluntary, and parties may continue to submit documents with ``wet''
                ink signatures, so long as they are scanned and submitted
                electronically. At the same time, OWCP is conscious of the need to
                safeguard the integrity of electronic signatures and to ensure that
                each signature truthfully reflects the purported signatory's intent to
                sign. To that end, the proposed rule sets out criteria to be followed
                by parties submitting electronically-signed documents.
                B. Streamlining the Settlement Process
                 Section 8(i) of the Act, 33 U.S.C. 908(i), allows parties to settle
                compensation cases. Parties may agree to settle amounts payable for
                disability compensation, death benefits, medical benefits, attorney's
                fees, and costs. An adjudicator--a district director or an
                administrative law judge--must review each settlement application.
                Unless the settlement amount is inadequate or was procured by duress,
                the adjudicator must approve it. Section 8(i) also provides that when
                all parties are represented by counsel, a settlement application is
                deemed approved 30 days after its submission if the adjudicator does
                not disapprove it.
                 The settlement application process should be easy for the parties
                to follow and lead to prompt resolution of compensation cases. However,
                in some instances, the settlement application process has become overly
                complicated. To justify the settlement application, parties submit
                large amounts of documentation (e.g., all of the employee's medical
                treatment records) that is well beyond what is necessary for full
                consideration of the application in most cases. In addition to the
                extra burdens placed on parties, this practice creates unnecessary
                administrative burdens for OWCP and the Office of Administrative Law
                Judges (OALJ).
                [[Page 80700]]
                 The proposed revisions of the settlement regulations at Sec. Sec.
                702.241-702.243 would streamline the application process by focusing on
                the relevant information the parties must initially submit to properly
                adjudicate the settlement application. The adjudicator may then
                exercise his or her discretion and ask for additional documentation
                from the parties in those cases where necessary to determine whether
                the settlement is adequate in amount and procured without duress. The
                proposed rules also allow the adjudicator to defer to the parties'
                representations regarding the adequacy of the settlement amount and
                whether the settlement was procured by duress. The Department believes
                these changes will make both the application and approval process more
                efficient, lessening the burden on parties and adjudicators alike. The
                Department has also taken this opportunity to propose reorganizing, and
                in some cases simplifying, much of the information contained in the
                current settlement regulations.
                C. Procedures for Civil Money Penalties
                 The proposed regulations contain new and amended provisions
                implementing 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. An employer who
                discharges or discriminates against an employee because of that
                employee's attempt to claim compensation under the Act may also be
                penalized. 33 U.S.C. 948a; 20 CFR 702.271. The proposed rule would
                revise current Sec. 702.204 to provide for graduated penalties for an
                entity's failure to 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.
                 The proposed regulations also contain a new Subpart I setting out
                procedures for assessing and challenging penalties. These rules 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
                notice from the district director that the assessment of a penalty is
                being considered and a subsequent decision assessing the penalty, the
                respondent may request a hearing before an administrative law judge.
                The ensuing decision will address whether the respondent violated the
                statutory or regulatory provision under which the penalty was assessed,
                and whether the amount of the penalty assessed is correct. Any party
                aggrieved by the decision may petition for the Secretary's review,
                which will be discretionary and based on the record. These additional
                levels of review are consistent with 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 will fully protect employers' and insurance carriers' rights
                to challenge OWCP's action before any penalty becomes final and subject
                to collection, and ensure transparency and fairness in the enforcement
                proceedings. See generally Executive Order 13892, Promoting the Rule of
                Law Through Transparency and Fairness in Civil Administrative
                Enforcement and Adjudication (October 9, 2019).
                IV. Section-by-Section Analysis
                A. Regulations Related to Electronic Transmission of Documents and
                Information and Electronic Signatures
                Section 702.101 Exchange of Documents and Information; Electronic
                Signatures
                 Proposed Sec. 702.101 revises several parts of the current
                regulation to require electronic submission of all documents and
                information to OWCP, permits the use of electronic signatures, and
                amends the title of the regulation to include electronic signatures.
                Proposed paragraph (a) begins by excepting from the mandatory
                electronic submission and exchange requirements those instances where
                the statute either allows filings by mail or mandates service by mail:
                Sections 702.203 (employer's report of injury or death, implementing 33
                U.S.C. 930(d)), 702.215 (notice of injury or death, implementing 33
                U.S.C. 912(c)), and 702.349 (service of compensation orders,
                implementing 33 U.S.C. 919(e)). Although parties are not required to
                submit reports and notices of injury or death to OWCP electronically,
                OWCP encourages them to do so.
                 Proposed paragraph (a) combines current paragraphs (a) and (b) and
                breaks the combined text into three subsections that address three
                categories of document and information exchanges. Paragraph (a)(1)
                provides that parties (and their representatives) sending documents and
                information to OWCP must submit them electronically through an OWCP-
                authorized system. OWCP's Secure Electronic Access Portal (SEAPortal)
                is an example of such a system. A district director may make an
                exception to this rule for parties who do not have computers or access
                to the internet, or who lack the ability to use the internet. When a
                district director authorizes a party to use an alternative submission
                method, the party may use any of the methods set forth in the current
                rule: Postal mail, commercial delivery service, hand delivery, or
                another method OWCP authorizes. In all instances, documents are
                considered filed when received by OWCP.
                 Proposed paragraph (a)(2) provides that OWCP may send documents and
                information to parties and their representatives by a reliable
                electronic method (e.g., email), postal mail, commercial delivery
                service, hand delivery, or electronically through an OWCP-authorized
                system. These methods are the same as those in the current regulation
                with one exception. For documents and information OWCP sends via a
                reliable electronic method, the proposed rule eliminates the
                requirement that the party or representative must agree in writing to
                receive documents by that method. OWCP is now routinely obtaining
                electronic contact information, such as email addresses, from parties
                and representatives, and plans to increase its use of standard
                electronic business communication practices. Service of compensation
                orders, however, would still be governed by Sec. 702.349 and thus be
                sent electronically only when a party or representative affirmatively
                waives their statutory right to registered or certified mail service.
                 Proposed paragraph (a)(3) governs exchange of documents and
                information between opposing parties and representatives. Like the
                current rule, the proposed provision allows the parties flexibility to
                choose the method of service they wish to use. They may use the same
                methods as OWCP, although parties must agree in writing to receive
                documents by a reliable electronic method. Requiring written
                confirmation from the recipient will continue to protect all parties
                and representatives from any misunderstandings about service.
                 Proposed paragraph 702.101(g) is a new provision that allows
                parties to submit electronically-signed documents to OWCP. The rule is
                intended to permit the widest possible use of electronic
                [[Page 80701]]
                technology. Electronic signatures would be accepted on all submissions
                to OWCP that require a signature, not merely those non-exhaustive
                examples listed in the text of the proposed rule.
                 Proposed paragraph (g)(1) explains how key terms are used in the
                remainder of the paragraph. A ``document'' includes both paper and
                electronic writings. The documents listed in this definition--
                applications, claim forms, notices of payment, and reports of injury--
                are meant to serve as examples of the types of documents parties could
                electronically sign and submit to OWCP, but are not meant to be an
                exhaustive list. Electronic signatures on other types of documents not
                listed here would also be accepted by OWCP.
                 An ``electronic signature'' is a mark created by electronic means
                that shows an intent to sign the document. An electronic signature is
                binding on a business entity only if the signatory has appropriate
                legal authority to bind the entity.
                 ``Electronic signature devices'' are tools parties may use to
                create electronic signatures. As with documents, the examples of
                electronic signature devices provided in this paragraph are not an
                exhaustive list. Parties could utilize other types of electronic
                signature devices, as long as the device is uniquely usable by the
                signatory at the time the signature is made. The purpose of this
                limitation is to ensure the signature's trustworthiness. The definition
                of ``electronic signature programs'' is designed to permit the
                submission of documents electronically signed with third-party software
                programs such as--but not limited to--AdobeSign, DocuSign, and E-Sign.
                 The definition of ``signatory'' is limited to individual, human
                persons; a corporation or business cannot be a signatory, though a
                signatory can sign on behalf of a corporation or business. This
                definition is designed to ensure that if the validity of a signature is
                challenged, it will be possible for all parties involved to verify who
                created it.
                 Proposed paragraph (g)(2) lists the allowable methods for creating
                and affixing electronic signatures and adds the proviso that OWCP can
                approve other methods.
                 Proposed paragraph (g)(3) clarifies that all electronic signatures
                made on the same document need not be created by the same method; a
                document could, for example, contain a ``/s'' signature from a claimant
                (as specified in paragraph (g)(2)(iii)) and a separate signature from
                an employer's agent made by drawing a mark with a stylus on a touch-
                screen (as specified in paragraph (g)(2)(iv)). OWCP recognizes that
                some of the methods described in paragraph (g)(2) may overlap. For
                example, an electronic signature program may involve a signatory first
                logging in through the use of an electronic signature device such as a
                PIN number, and then typing their name following a ``/s'' mark. A
                signature that incorporates multiple acceptable methods is still an
                acceptable electronic signature. These provisions are designed to be as
                inclusive as possible while militating against the possibility of abuse
                or fraud.
                 Finally, proposed paragraph (g)(4) would impose obligations on
                parties that submit electronically-signed documents. This subparagraph
                is designed to mitigate the possibility of a legal challenge to the
                integrity of a signature or the identity of the signatory. Paragraph
                (g)(4)(i) is designed to prevent the use of signatures that leave the
                actual identity of the signatory ambiguous; examples of such signatures
                might be those that indicate only a PIN, ambiguous username, or email
                address that is shared by multiple members of a business or other
                organization. Paragraphs (g)(4)(ii)-(iii) impose record-keeping
                obligations on parties. By requiring parties to keep information about
                how and when an electronic signature was created, OWCP ensures that
                some means of authenticating the signature exists if the document's
                validity is ever disputed.
                 The remaining proposed revisions to Sec. 702.101 are technical in
                nature. Existing paragraphs (c)-(f) are renumbered to (b)-(e), and
                cross-references to other paragraphs throughout the section have been
                updated. In addition, because proposed paragraph (a)(2) would not
                require parties and representatives to consent in writing to receive
                documents and information from OWCP via reliable electronic methods,
                proposed paragraph (c) removes the words ``OWCP'' and ``as
                appropriate'' from current paragraph (d). Even though much of Sec.
                702.101 remains unchanged, the Department has chosen to re-publish the
                section in full for the public's convenience.
                Section 702.203 Employer's Report; How Given
                 Section 30 of the Longshore Act, 33 U.S.C. 930, governs how and
                when employers must report employee injuries and deaths. In general,
                employers must send reports within 10 days of the injury or death, or
                knowledge of an injury or death. The Act explicitly allows an employer
                to comply with the reporting requirement by ``mailing'' the report ``in
                a stamped envelope, within the time prescribed.'' 33 U.S.C. 930(d).
                Current Sec. 702.203(b), which implements section 30(d), acknowledges
                this mailing provision and provides that employers may send the reports
                to OWCP by U.S. Postal mail, commercial delivery service, or
                electronically. To encourage electronic filing yet preserve the
                statutory mail provision, proposed Sec. 702.203(b) eliminates
                commercial delivery service as a submission option but retains the
                mailing provisions. If an employer chooses to mail the report, the rule
                places the burden on the employer to preserve evidence of the date the
                report is mailed to OWCP. This could easily be accomplished by using
                certified mail. Finally, to clarify electronic submission procedures,
                the proposed rule requires submission via an OWCP-authorized system and
                includes a cross-reference to proposed Sec. 702.101(a)(1). This
                revision eliminates the use of other electronic transmission methods
                and the need to specify when filing is complete under those methods.
                Section 702.215 Notice; How Given
                 Section 12 of the Longshore Act, 33 U.S.C. 912, governs how and
                when employees and survivors give notices of injury or death to
                employers and OWCP. The Act requires that such notices be given to the
                district director ``by delivering it to him or sending it by mail
                addressed to his office.'' 33 U.S.C. 912(c). Without amendment of
                current Sec. 702.215, the proposed revisions to Sec. 702.101 would
                effectively eliminate this statutory mailing option. Section 702.215
                provides that ``[n]otice may be given to the district director by
                submitting a copy of the form supplied by OWCP to the district
                director, or orally in person or by telephone.'' The ``submitting''
                language brings to bear the transmission methods specified in Sec.
                702.101. See 20 CFR 702.101(e); 48 CFR 12921 (March 12, 2015). Since
                proposed Sec. 702.101(a) would require electronic filing of these
                notices, OWCP proposes to amend Sec. 702.215 to preserve the option of
                filing by mail in compliance with the Act. The proposed rule makes
                clear that employees and survivors may also file these notices
                electronically through an OWCP-authorized system.
                B. Regulations Pertaining to Settlements
                Section 702.241 Settlements: Definitions; General Information
                 Proposed Sec. 702.241 contains basic information about settlements
                under section 8(i) of the Longshore Act, 33 U.S.C. 908(i). Proposed
                paragraph (a) retains the current definition of the term
                [[Page 80702]]
                ``Adjudicator,'' adds a definition for ``Compensation case,'' and
                includes the definition for ``Counsel'' located in current Sec.
                702.241(h). Paragraph (b) sets out several basic concepts: That an
                adjudicator must approve all settlements; the types of compensation,
                fees, and costs that a settlement may include; the ``inadequate'' and
                ``procured by duress'' standard applied in reviewing settlements; and,
                where all parties are represented by counsel, that the settlement is
                deemed approved 30 days after receipt of a completed application unless
                an adjudicator requests additional information or disapproves the
                application within that time period.
                 Proposed paragraph (c) specifies when a settlement application is
                considered received by an adjudicator or higher tribunal. The proposed
                rule eliminates the provision in current Sec. 702.241(c) allowing
                settlement applications filed with an administrative law judge to be
                considered received ``five days before the date on which the formal
                hearing is scheduled to be held.'' In OWCP's experience, judges act
                quickly on settlement applications when received. Removing this
                provision will help eliminate any confusion parties may have over when
                a judge will consider their settlement proposal and promote prompt
                resolution. Paragraph (d) retains the provision in current Sec.
                702.241(f) regarding days that count towards the 30-day settlement
                period. And paragraph (e) retains the provision in current Sec.
                702.241(g) that limits settlements to claims in existence at the time
                of the settlement and provides that settlements for the injured
                employee do not affect survivors' claims for death benefits.
                 Additional note: Current Sec. 702.241(b) has been moved to
                proposed Sec. 702.242(e) and revised. Current Sec. 701.241(d) has
                been moved to proposed Sec. 702.243(f) and revised. Current Sec.
                701.241(e) has been moved to proposed Sec. 702.243(i) and revised.
                Section 702.242 Settlement Application; Contents and Submission
                 Proposed Sec. 702.242 sets out the information parties must
                include in a settlement application and how parties must submit the
                application. Paragraph (a) simplifies the requirements in current Sec.
                702.242(a) by requiring that the parties use an application form
                prescribed by OWCP. The form will be a self-sufficient document that
                requires all information necessary for a complete application and
                signatures necessary to indicate agreement to the settlement. The form
                will also apprise claimants of the effect of the settlement (e.g.,
                waiver of rights to further compensation). Using a form should simplify
                the application process for the parties, who will no longer have to
                create their own documents. A form also has the advantage of allowing
                OWCP to adopt technology that will allow full online completion and
                submission of the settlement application.
                 Proposed paragraph (a) also lists the components that must be
                included in the settlement application. In large part, this list
                reflects the requirements set forth in current Sec. 702.242(a) and
                (b). Parties are required to include basic facts about the case,
                amounts to be paid under the settlement, the signatures of the parties
                agreeing to the settlement and attesting that the settlement is
                adequate and not procured by duress, and a statement regarding
                severability of the parts of the settlement, where appropriate.
                 Proposed paragraph (b) provides that the adjudicator can request
                any additional information he or she deems necessary to decide whether
                the settlement is adequate or was procured by duress. This allows the
                adjudicator to tailor a request for additional information (e.g., a
                medical report, projections of future medical treatment expenses) to
                the facts of the particular case. Paragraph (c) limits the
                adjudicator's consideration to the information in the application, any
                specific information the adjudicator requests from the parties, and
                information in the case record when the settlement application is
                filed.
                 Proposed paragraphs (d) and (e) prescribe how parties submit
                completed settlement applications. These provisions require parties to
                submit applications to the district director except when the case is
                pending before the OALJ. In that instance, parties may either ask OALJ
                to remand the case to the district director and then submit the
                application to the district director after remand or submit the
                application to OALJ for consideration. Parties who submit settlement
                applications while a case is pending before a higher tribunal--the
                Benefits Review Board or a court--must submit them to the district
                director and ask the tribunal to return the case to the district
                director, who is an adjudicator with the authority to consider the
                application. These procedures reflect current practice.
                Section 702.243 Settlement Approval and Disapproval
                 Proposed Sec. 702.243 governs how settlement applications are
                reviewed and the consequences of that review. Proposed paragraph (a)
                requires adjudicators to review the settlement application within 30
                days of receipt. During that time period, the adjudicator must notify
                the parties if the application is incomplete and ask for any additional
                information as allowed under proposed Sec. 702.242(b). The notice must
                also inform the parties that the 30-day period in proposed Sec.
                702.241(b) will not begin to run until the adjudicator receives the
                completed application and additional information. This formulation is
                consistent with current Sec. 702.243(a), which states that an
                incomplete application tolls the 30-day time period for deeming the
                application approved.
                 Proposed paragraph (b) combines two requirements in current Sec.
                702.243(b) and (c) regarding adjudicating a settlement. The adjudicator
                must issue a compensation order approving or disapproving the
                settlement application. If the application is disapproved in any part,
                the adjudicator must include a statement of the reasons for finding the
                settlement (or part thereof) inadequate or procured by duress. This
                provision also requires the adjudicator to file and serve the
                compensation order under the procedures set forth in Sec. 702.349.
                Although OWCP already follows these procedures, adding a reference to
                Sec. 702.349 will ensure that parties will be able to choose to
                receive orders on settlements via electronic means rather than by
                registered or certified mail.
                 Proposed paragraph (c) instructs adjudicators to consider the
                information in the settlement application, any additional information
                the adjudicator requested under proposed Sec. 702.242(b), and the
                parties' attestations in the application in determining whether the
                proposed settlement is adequate and was procured without duress. The
                rule also allows the adjudicator to defer to the parties' attestations
                regarding adequacy and duress. This provision replaces current Sec.
                702.243(f)'s more detailed standard for determining whether the
                settlement amount is adequate, allowing the adjudicator to consider
                only that information important to the particular case.
                 Like current Sec. 702.243(e), proposed paragraph (d) continues to
                provide that disapproval of any part of a settlement applies to the
                entire settlement unless the parties state in the application that they
                agree to settle various parts independently. OWCP will incorporate this
                question into the settlement application.
                 Proposed paragraph (e) sets out the actions parties may take after
                an adjudicator disapproves a settlement application. When disapproved
                by a district director, the parties may submit an amended settlement
                application to
                [[Page 80703]]
                the district director or request an administrative law judge hearing on
                the disapproval. Any party may also ask for an administrative law judge
                hearing on the merits of the case. Similarly, when disapproved by an
                administrative law judge, the parties may submit an amended settlement
                application to the judge, appeal to the Benefits Review Board, or
                proceed with a hearing on the merits.
                 Proposed paragraph (f) sets out the circumstances when a settlement
                is deemed approved. Consistent with section 8(i)(1), 33 U.S.C.
                908(i)(1), this regulation applies only when all parties are
                represented by counsel. If the adjudicator neither approves nor
                disapproves the settlement application within 30 days after an
                adjudicator receives a complete application and any additional
                information the adjudicator requests under proposed Sec. 702.242(b),
                the settlement will be deemed approved.
                 Proposed paragraph (g) retains the provision in current Sec.
                702.243(b) that an employer's and insurance carrier's liability for a
                compensation case is not discharged until the settlement application is
                approved. This includes both approvals issued by an adjudicator and
                those settlements deemed approved under the provisions of this section.
                 Proposed paragraph (h) addresses the effect of settling attorney
                fees. The rule retains the thrust of the provision in current Sec.
                702.241(e): Approval of a settlement application that includes attorney
                fees constitutes approval of fees for all purposes. Paragraph (h) adds
                that fees in a settlement application may include fees for services
                rendered before a different adjudicator or tribunal. This will allow
                one adjudicator to resolve all fee maters, eliminating any need for the
                parties to seek fee resolutions from any other adjudicator or tribunal.
                 Proposed paragraph (i) revises current Sec. 702.243(g) regarding
                how adjudicators consider settlements in cases being paid under a final
                compensation order. The current regulation requires adjudicators to
                disapprove any settlement amount that falls below the present value of
                compensation payments commuted (as prescribed in the regulation) unless
                the parties show that the amount is adequate. Proposed paragraph (i)
                expands the adjudicator's discretion by making the comparison between
                the settlement and commuted amounts permissible rather than mandatory.
                This will allow the adjudicator more flexibility to ratify the parties'
                agreement as to the settlement amount. OWCP also proposes to remove
                from current Sec. 702.243(g) the reference to the U.S. Life Table
                developed by the Department of Health and Human Services. This table is
                insufficient because it does not provide life expectancies for people
                in foreign countries that could be covered by the Longshore Act or its
                extensions, particularly the Defense Base Act. Proposed paragraph (i)
                instead allows OWCP to specify the life expectancy tables or
                calculators to be used under this provision.
                C. Regulations Related to Civil Money Penalties
                Section 702.204 Employer's Report; Penalty for Failure To Furnish or
                for Falsifying
                 Proposed Sec. 702.204 revises the current regulation in several
                ways. First, paragraph (a)(1) defines a knowing or willful violation
                sufficient to impose a penalty. Paragraph (c) provides that the number
                of penalties assessed in the prior two years against an entity--
                including its parent company, subsidiaries, or related entities--will
                be considered in assessing further penalties. Paragraph (c) also lists
                the penalty amounts that will be imposed, beginning at two percent of
                the maximum penalty amount for a first violation, with the penalty
                doubling for each subsequent violation through the sixth violation. The
                seventh violation 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.
                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 Sec. 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) are
                ``compensation'' and not ``penalties.'' Robirds v. ICTSI Oregon, Inc.,
                52 BRBS 79 (2019)(en banc); appeal docketed Ninth Cir. No. 19-1634. 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
                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.''); Tahara v. Matson Terminals, Inc.,
                511 F.3d 950, 953-54 (9th Cir. 2007) (same); but see Burgo v. General
                Dynamics Corp., 122 F.3d 140, 145-46 (2d Cir. 1997). Using ``additional
                compensation'' in the title of Sec. 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 Sec. 702.236 revises the current rule to incorporate the
                penalty procedural rules proposed in new Subpart I.
                Section 702.271 Discrimination Against Employees Who Bring Proceedings;
                Prohibition
                 Proposed Sec. 702.271 revises the current rule by dividing
                paragraph (a) into paragraphs (a) and (b), and renumbering the
                subdivisions of paragraph (a), for clarity. Current paragraph (a)(2) is
                deleted and replaced by proposed Sec. 702.273, which sets forth the
                range of penalties to be assessed and incorporates the penalty
                procedural rules proposed in new Subpart I. Given this change, the
                words ``and penalty'' are deleted from the section's title and the
                punctuation has been altered. Current paragraphs (b), (c), and (d) are
                redesignated (c), (d), and (e).
                Section 702.273 Penalty for Discrimination
                 Proposed Sec. 702.273 replaces and revises current Sec.
                702.271(a)(2). It sets forth the range of penalties for discharge or
                discrimination, and incorporates the penalty procedural rules proposed
                in new Subpart I. The proposed rule also stays proceedings on any
                penalty assessed by the district director prior to a hearing until the
                Administrative Law Judge or higher tribunal resolves the underlying
                discrimination complaint.
                Section 702.901 Scope of This Part
                 Proposed Sec. 702.901 provides that the procedures set forth in
                Subpart I apply when the district director imposes civil monetary
                penalties under Sec. Sec. 702.204, 702.236, or 702.273, and that any
                [[Page 80704]]
                penalties collected are to be deposited into the special fund described
                in 33 U.S.C. 944.
                Section 702.902 Definitions
                 Proposed Sec. 702.902 defines ``respondent'' as the employer,
                insurance carrier, or self-insured employer against whom the district
                director is seeking to assess a penalty.
                Section 702.903 Notice of Penalty; Response; Consequences of No
                Response
                 Proposed Sec. 702.903 is a new provision governing OWCP's notice
                of any penalty assessed and the respondent's response. 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. Paragraph (b) prescribes the contents of
                the notice, which include the consequences of not responding to the
                notice or supplying an inadequate response. Paragraph (c) gives the
                respondent 30 days to respond with documentation regarding any facts
                relevant to the reason for the penalty, as well as any documentation
                that may lead to mitigation of the penalty amount under the Small
                Business Regulatory Enforcement Fairness Act, 5 U.S.C. 601 (note), if
                the penalty arises under Sec. 702.236. Paragraph (d) provides that, if
                there are further proceedings before an administrative law judge, that
                judge may consider only the evidence submitted to the district
                director, unless exceptional circumstances prevented the respondent
                from submitting it to the district director. OWCP has proposed this
                restriction so that OWCP can evaluate all evidence the respondent
                wishes to introduce in assessing the penalty. Finally, paragraph (e)
                provides that if the respondent does not respond within 30 days, the
                assessment of the penalty and its amount becomes final and collection
                may begin under Sec. 702.912.
                Section 702.904 Decision on Penalty After Timely Response; Request for
                Hearing
                 Proposed Sec. 702.904 addresses the district director's decision
                and any appeal to an administrative law judge. Paragraph (a) provides
                that the district director's decision must state the reasons for the
                assessment of the penalty and its amount, and set forth the
                consequences of a respondent's failure to timely respond. Paragraph (b)
                provides that the respondent may request a hearing before an
                administrative law judge within 15 days of receiving the decision by
                filing a request with the district director, and sets forth the
                requirements the request must meet. Paragraph (c) provides that a
                timely hearing request will stay the collection of a penalty until
                final resolution of the penalty by the administrative law judge or the
                Secretary. Paragraph (d) provides that, if the respondent does not
                request a hearing within 15 days, the assessment and penalty become
                final, and collection of the penalty may be instituted under Sec.
                702.912.
                Section 702.905 Referral to the Office of Administrative Law Judges
                 Proposed Sec. 702.905 addresses referral of an assessment and
                penalty for a hearing before an administrative law judge. Paragraph (a)
                provides that, when the district director receives a request for
                hearing, the district director will immediately 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 decision, the
                documentation the district director relied on in making the decision,
                all written responses and documentation filed by the respondent with
                the district director, and a statement of the issues referred for
                hearing. Paragraph (b) provides that the rules set forth in 29 CFR part
                18 will apply to any hearing before an administrative law judge.
                Section 702.906 Decision and Order of Administrative Law Judge
                 Proposed Sec. 702.906 governs the contents, issuance, service, and
                finality of the administrative law judge's decision. Paragraph (a)
                provides that the administrative law judge may consider only the issues
                referred for hearing by the district director. Paragraph (b) limits the
                administrative law judge's determinations on those issues 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 Sec. Sec. 702.204, 702.236, 702.271, and 702.903(c)(2).
                Limiting the judge's consideration to these issues will help streamline
                the hearing and decision process. Paragraph (c) requires the
                administrative law judge's decision to include a statement of findings
                and conclusions on each issue referred, with the reasons and bases for
                those findings and conclusions. Paragraph (d) requires the
                administrative law judge to serve both the respondent and the district
                director with the decision on the day it is issued through a trackable
                delivery method. Paragraph (e) provides that any party may move for
                reconsideration of the decision within 30 days of its issuance, and
                that any such motion will suspend the running of time to file a
                petition for review under Sec. 702.908. Paragraph (f) provides that,
                absent a timely request for reconsideration or petition for review, the
                administrative law judge's decision will be deemed final, and recovery
                of the penalty may be instituted under Sec. 702.912.
                Section 702.908 Review by the Secretary
                 Proposed Sec. 702.908 allows any party aggrieved by an
                administrative law judge's decision to petition the Secretary for
                review. Paragraph (a) requires that any petition be filed within 30
                days. Under paragraph (b), a timely motion for reconsideration filed
                with the administrative law judge tolls the time for filing a petition
                with the Secretary; the 30-day period will not begin to run until the
                judge issues a decision on reconsideration. Paragraph (c) sets out the
                requirements for the petition for review. And paragraph (d) provides
                the mailing address for sending the petition but allows the Secretary
                to designate alternative filing methods, such as an electronic filing
                system. Documents are not considered filed until actually received by
                the Secretary.
                Section 702.909 Discretionary Review
                 Proposed Sec. 702.909(a) provides that the Secretary's review of a
                timely petition is discretionary. Paragraph (a)(1) provides that, if
                the Secretary declines review, the administrative law judge's decision
                will be considered the final agency decision. 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. 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 Sec. 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. The Secretary's
                decision must be served on all parties and the Chief Administrative Law
                Judge.
                [[Page 80705]]
                Section 702.911 Settlement of Penalty
                 Proposed Sec. 702.911 provides that the respondent and the
                district director may enter into a settlement at any time during
                proceedings before the administrative law judge or the Secretary. This
                provision is meant to allow flexibility and forestall further
                litigation if the district director and the respondent reach agreement
                at any point during the proceedings.
                Section 702.912 Collection and Recovery of a Penalty
                 Paragraph (a) of proposed Sec. 702.912 provides that, when a
                penalty becomes final under Sec. Sec. 702.903(e), 702.904(d), or
                702.906(f), 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.
                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 LHWCA also grants the Secretary
                authority to determine by regulation how certain statutory notice and
                filing requirements are met. See 33 U.S.C. 907(j)(1) (the Secretary is
                authorized to ``make rules and regulations and to establish
                procedures'' regarding debarment of physicians and health care
                providers under 33 U.S.C. 907(c)); 33 U.S.C. 912(c) (employer must
                notify employees of the official designated to receive notices of
                injury ``in a manner prescribed by the Secretary in regulations''); 33
                U.S.C. 919(a) (claim for compensation may be filed ``in accordance with
                regulations prescribed by the Secretary''); 33 U.S.C. 919(b) (notice of
                claim to be made ``in accordance with regulations prescribed by the
                Secretary''); 33 U.S.C. 935 (``the Secretary shall by regulation
                provide for the discharge, by the carrier,'' of the employer's
                liabilities under the Act). This rule falls well within these statutory
                grants of authority.
                VI. Information Collection Requirements (Subject to the Paperwork
                Reduction Act) Imposed Under the Proposed Rule
                 The Paperwork Reduction Act of 1995 (PRA), 44 U.S.C. 3501 et seq.,
                and its attendant 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, no person shall
                generally be subject 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.
                 If the proposed rule is adopted in final, all forms and documents
                currently approved by OMB are subject to electronic submission except
                when a party obtains permission from OWCP to use a different submission
                method or otherwise provided by statute. The Department has submitted
                an Information Collection Request (ICR) for all of these forms under
                the procedures for review and clearance contained in 5 CFR 1320.13. The
                Exchange of Documents and Information; Electronic Signatures Rule (see
                proposed Sec. 702.101) does not materially change any other ICR with
                regard to the information collected, but does change the manner in
                which forms that collect information may be submitted. The Department
                will require private parties to use an electronic method for the
                transmission of information to OWCP.
                 The collection of information requirements are contained within
                ICRs assigned the following OMB control numbers: 1240-0003, 1240-0004,
                1240-0005, 1240-0008, 1240-0012, 1240-0014, 1240-0025, 1240-0026, 1240-
                0029, 1240-0036, 1240-0040, 1240-0041, 1240-0042, 1240-0045, 1240-0053,
                and 1240-0058. The regulatory sections specifying the submission
                procedures are found in the following sections: 20 CFR 702.111,
                702.121, 702.132, 702.162, 702.174, 702.175, 702.201, 702.202, 702.221,
                702.234, 702.235, 702.236, 702.242, 702.243, 702.251, 702.285, 702.317,
                702.321, 702.349, 702.407, 702.419, 703.116, 703.203, 703.204, 703.205,
                703.209, 703.210, 703.212, 703.303, and 703.310. See also 42 U.S.C.
                1652.
                 Although the rule does not eliminate current methods of submission
                for these collections by mail where consistent with statute, the
                parties will have to submit more documents electronically. OWCP
                anticipates electronic submission will lead to cost savings in hours
                and mailing costs (envelopes and postage) for the parties. Given the
                response rate for each of the existing collections, current combined
                mailing costs are estimated at $118,657. Once the rule becomes final,
                the Department anticipates a 97 percent rate of electronic submission,
                an accompanying reduction in postal mail submission, and a resulting
                cost savings of $115,097. The Department has submitted a request to OMB
                for a non-substantive change for each existing ICR cited above to
                obtain approval for the changed cost estimate resulting from electronic
                submission.
                 The proposed rule imposes two new information collections. First,
                proposed Sec. 702.201(a)(1)(i) generally requires parties and their
                representatives to submit documents and information electronically to
                OWCP. But the rule allows an OWCP district director to allow an
                alternative filing method for individuals who do not have a computer,
                access to the internet, or the ability to use the internet. OWCP plans
                to use a new form that will allow individuals to self-certify that they
                qualify for this exception. For this form, OWCP estimates 3,048
                respondents with an annual time burden of 254 hours. Because this form
                will only be used when other documents are being submitted, there is no
                additional cost burden. Second, proposed Sec. 702.242 requires parties
                to apply for approval of a settlement using an application form
                prescribed by OWCP. As explained in the section-by-section analysis
                above, OWCP believes use of a comprehensive form will lessen the
                burdens on the parties and the adjudicators who must review the
                settlements. Although OWCP already has an approved settlement
                application form (see OMB control number 1240-0058, Form LS-8), the new
                form will collect some additional information in a substantially
                revised format. For this form, OWCP estimates 5,400 respondents with an
                annual time burden of 1,782 hours and other costs burden of $289.17.
                The Department has submitted a request to OMB for approval of both new
                information collections.
                 The submitted ICRs for the new collections imposed by this rule
                will be available for public inspection for at least 30 days under the
                ``Currently Under Review'' portion of the Information Collection Review
                section on the reginfo.gov website, available at: http://www.reginfo.gov/public/do/PRAMain. Currently approved information
                collections are available for public inspection under the ``Current
                Inventory'' portion of the same website.
                 Request for Comments: As part of its continuing effort to reduce
                paperwork and respondent burden, the Department conducts a pre-
                clearance consultation program to provide the general public and
                Federal agencies an opportunity to comment on proposed and/or
                continuing collections of information. This program helps to ensure
                requested
                [[Page 80706]]
                data can be provided in the desired format, reporting burden (time and
                financial resources) is minimized, collection instruments are clearly
                understood, and the impact of collection requirements can be properly
                assessed. Comments on the information collection requirements may be
                submitted to the Department in the same manner as for any other portion
                of this rule.
                 In addition to having an opportunity to file comments with the
                agency, the PRA provides that an interested party may file comments on
                the information collection requirements in a proposed rule directly
                with the Office of Management and Budget, at Office of Information and
                Regulatory Affairs, Attn: OMB Desk Officer for DOL-OWCP Office of
                Management and Budget, Room 10235, 725 17th Street NW, Washington, DC
                20503; by Fax: 202-395-5806 (this is not a toll-free number); or by
                email: [email protected]. Commenters are encouraged, but not
                required, to send a courtesy copy of any comments to the general
                addressee for this rulemaking. The OMB will consider all written
                comments it receives within 30 days of publication of this NPRM in the
                Federal Register. To help ensure appropriate consideration, comments
                should mention at least one of the OMB control numbers noted in this
                section.
                 The OMB and the Department are particularly interested in comments
                that address the following:
                 Evaluate whether the proposed collection of information is
                necessary for the proper performance of the functions of the agency,
                including whether the information will have practical utility;
                 Evaluate the accuracy of the agency's estimate of the
                burden of the proposed collection of information, including the
                validity of the methodology and assumptions used;
                 Enhance the quality, utility, and clarity of the
                information to be collected; and
                 Minimize the burden of the collection of information on
                those who are to respond, through the use of appropriate automated,
                electronic, or other technological collection techniques or other forms
                of information technology, e.g., permitting electronic submission of
                responses.
                 The information collections in this rule may be summarized as
                follows:
                 1. Title of Collection: Employer's First Report of Injury or
                Occupational Disease, Employer's Supplementary Report of Accident or
                Occupational Illness.
                 OMB Control Number: 1240-0003.
                 Total Estimated Number of Responses: 24,631.
                 Total Estimated Annual Time Burden: 6,158 hours.
                 Total Estimated Annual Other Costs Burden: $232.76.
                 2. Title of Collection: Carrier's Report of Issuance of Policy.
                 OMB Control Number: 1240-0004.
                 Total Estimated Number of Responses: 1,500.
                 Estimated Annual Time Burden: 25 hours.
                 Total Estimated Annual Other Costs Burden: $0.47.
                 3. Title of Collection: Securing Financial Obligations Under the
                Longshore and Harbor Workers' Compensation Act and its Extensions.
                 OMB Control Number: 1240-0005.
                 Total Estimated Number of Responses: 695.
                 Estimated Annual Time Burden: 869 hours.
                 Total Estimated Annual Other Costs Burden: $12.08.
                 4. Title of Collection: Regulations Governing the Administration of
                the Longshore and Harbor Workers' Compensation Act.
                 OMB Control Number: 1240-0014.
                 Total Estimated Number of Responses: 90.759.
                 Estimated Annual Time Burden: 32,971 hours.
                 Estimated Annual Other Costs Burden: $786.09.
                 5. Title of Collection: Request for Earnings Information.
                 OMB Control Number: 1240-0025.
                 Total Estimated Number of Responses: 100.
                 Estimated Annual Time Burden: 25 hours.
                 Estimated Annual Other Costs Burden: $0.95.
                 6. Title of Collection: Application for Continuation of Death
                Benefit for Student.
                 OMB Control Number: 1240-0026.
                 Total Estimated Number of Responses: 20.
                 Total Estimated Annual Time Burden: 10 hours.
                 Total Estimated Annual Other Costs Burden: $0.19.
                 7. Title of Collection: Request for Examination and/or Treatment.
                 OMB Control Number: 1240-0029.
                 Total Estimated Number of Responses: 90,000.
                 Estimated Annual Time Burden: 48,750 hours.
                 Total Estimated Annual Other Costs Burden: $2,532,816.
                 8. Title of Collection: Longshore and Harbor Workers' Compensation
                Act Pre-Hearing Statement.
                 OMB Control Number: 1240-0036.
                 Total Est. Number of Responses: 3,513.
                 Estimated Annual Time Burden: 586 hours.
                 Total Estimated Annual Other Costs Burden: $61.13.
                 9. Title of Collection: Certification of Funeral Expenses.
                 OMB Control Number: 1240-0040.
                 Total Estimated Number of Responses: 75.
                 Total Estimated Annual Time Burden: 19 hours.
                 Total Estimated Annual Other Costs Burden: $0.71.
                 10. Title of Collection: Notice of Final Payment or Suspension of
                Compensation Benefits.
                 OMB Control Number: 1240-0041.
                 Total Estimated Number of Responses: 37,800.
                 Total Estimated Annual Time Burden: 6,300 hours.
                 Total Estimated Annual Other Costs Burden: $357.21.
                 11. Title of Collection: Notice of Controversion of Right to
                Compensation.
                 OMB Control Number: 1240-0042.
                 Total Estimated Number of Responses: 18,000.
                 Total Estimated Annual Time Burden: 4,500 hours.
                 Total Estimated Annual Other Costs Burden: $295.97.
                 12. Title of Collection: Request for Electronic Service of Orders--
                Waiver of Certified Mail Requirement.
                 OMB Control Number: 1240-0053.
                 Total Estimated Number of Responses: 14,000.
                 Estimated Annual Time Burden: 770 hours.
                 Estimated Annual Other Costs Burden: $0.00.
                 13. Title of Collection: Request for Intervention, Longshore and
                Harbor Workers' Compensation Act.
                 OMB Control Number: 1240-0058.
                 Total Estimated Number of Responses: 12,414.
                 Total Estimated Annual Time Burden: 3,189 hours.
                 Total Estimated Annual Other Costs Burden: $342.91.
                 14. Title of Collection: Rehabilitation Plan and Award.
                 OMB Control Number: 1240-0045.
                 Total Estimated Number of Responses: 3,913.
                 Estimated Annual Time Burden: 1957 hours.
                 Estimated Annual Other Costs Burden: $0.00.
                 15. Title of Collection: Rehabilitation Maintenance Certificate.
                 OMB Control Number: 1240-0012.
                 Total Estimated Number of Responses: 3,452.
                [[Page 80707]]
                 Estimated Annual Time Burden: 575 hours.
                 Estimated Annual Other Costs Burden: $0.00.
                 16. Title of Collection: Rehabilitation Action Report.
                 OMB Control Number: 1240-0008.
                 Total Estimated Number of Responses: 4,066.
                 Estimated Annual Time Burden: 678 hours.
                 Estimated Annual Other Costs Burden: $0.00.
                VII. Executive Orders 12866 and 13563 (Regulatory Planning and Review)
                 Executive Orders 12866 and 13563 direct agencies to assess all
                costs and benefits of available regulatory alternatives and, if
                regulation is necessary, to select regulatory approaches that maximize
                net benefits (including potential economic, environmental, public
                health and safety effects, distributive impacts, and equity). Executive
                Order 13563 emphasizes the importance of quantifying both costs and
                benefits, reducing costs, harmonizing rules, and promoting flexibility.
                The Department has considered this proposed rule with these principles
                in mind and has concluded that the regulated community would benefit
                from this regulation for several reasons.
                 Requiring most parties and representatives to submit documents
                electronically to OWCP will speed claims processing and allow OWCP to
                be more responsive to requests for assistance. Currently, OWCP must
                scan paper submissions into digital format and add them to the
                electronic case file before claims staff can take any action on them.
                When coupled with the time to deliver paper submissions to OWCP, this
                can delay responding to a request by several days. In contrast,
                electronic submissions are immediately associated with the case file
                and available to claims staff. Codifying the use of digital signatures
                in the regulations will also simplify electronic and even paper
                submissions (when allowed).
                 Similarly, streamlining the settlement process by limiting the
                amount of information the parties must submit with every application
                will reduce administrative burdens on both the parties and OWCP. All of
                these changes will result in more expeditious resolution of disputes,
                thus furthering the ``certain, prompt recovery for employees'' the Act
                guarantees. Roberts v. Sea-Land Servs., Inc., 556 U.S. 93, 97; 132
                S.Ct. 1350, 1354 (2012).
                 The Department does not believe parties would incur additional
                costs as a result of the revisions to the electronic submission of
                documents and information regulation and may see a small financial
                benefit. As noted, more than 80 percent of documents currently sent to
                OWCP are submitted electronically. For these parties and
                representatives, no change in their current practices would be needed.
                Although the parties and representatives who currently submit paper
                documents would have to alter their practice, these alterations may
                result in cost savings by reducing paper copying charges and mailing or
                delivery expenses. Even if parties and representatives incurred minimal
                additional costs, they would be outweighed by the benefits reaped--
                primarily more expeditious claims processing and delivery of
                compensation.
                 The Department also believes that 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 would establish a transparent and
                consistent pathway for assessment and adjudication of penalties: Clear
                notice of the penalty and an opportunity to contest it before imposed
                by OWCP; hearing by an administrative law judge upon request;
                discretionary review by the Secretary; 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.
                 Finally, because this is not a ``significant regulatory action''
                within the meaning of Executive Order 12866, the Office of Management
                and Budget has not reviewed it prior to publication.
                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 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.
                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 rule, if adopted in final, will not have a
                significant economic impact on them. Most employers and insurance
                carriers already submit documents and information to OWCP
                electronically, and electronic filing is usually associated with
                slightly lower costs than traditional paper filings. Thus, mandating
                electronic submission will have little to no impact on these parties.
                Similarly, streamlining the settlement-application submission process
                will have no negative economic impact and a potentially small positive
                impact on employers and carriers. Finally, the regulations related to
                penalties generally set procedures with no economic impact. To the
                extent the proposed rules affect the penalty amount assessed by OWCP,
                the rules explicitly take into account small entities by incorporating
                the mitigation provisions in section 223 of the Small Business
                Regulatory Enforcement Fairness Act, 5 U.S.C. 601 (note), where
                appropriate. See proposed Sec. 702.903(c)(2).
                 Based on these facts, the Department certifies that this rule will
                not have a significant economic impact on a substantial number of small
                entities. Thus, a regulatory flexibility analysis is not required. The
                Department, however, invites comments from members of the public who
                believe the regulations will 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.
                X. Executive Order 13132 (Federalism)
                 The Department has reviewed this proposed rule in accordance with
                [[Page 80708]]
                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.
                XI. Executive Order 12988 (Civil Justice Reform)
                 This proposed rule meets the applicable standards in sections 3(a)
                and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize
                litigation, eliminate ambiguity, and reduce burden.
                List of Subjects in 20 CFR Part 702
                 Administrative practice and procedure, Claims, Longshore and harbor
                workers, Maximum compensation rates, Minimum compensation rates,
                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
                0
                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.
                0
                2. Revise Sec. 702.101 to read as follows:
                Sec. 702.101 Exchange of documents and information; electronic
                signatures.
                 (a) Except as otherwise provided by Sec. Sec. 702.203, 702.215 and
                702.349, all documents and information under this subchapter--
                 (1) Sent to OWCP--
                 (i) Must be submitted electronically through an OWCP-authorized
                system unless a district director permits an alternative submission
                method for individuals who do not have a computer, lack access to the
                internet, or lack the ability to utilize the internet. Documents and
                information submitted through an OWCP-authorized electronic system are
                considered filed when received.
                 (ii) When authorized to use an alternative method, submission may
                be made by postal mail, commercial delivery service (such as Federal
                Express or United Parcel Service), hand delivery, or another method
                authorized by OWCP. Documents and information submitted using an
                alternative method are considered filed when received by OWCP.
                 (2) Sent by OWCP to parties and their representatives must be
                sent--
                 (i) Electronically by a reliable electronic method;
                 (ii) In hard copy by postal mail, commercial delivery service (such
                as Federal Express or United Parcel Service), or hand delivery; or
                 (iii) Electronically through an OWCP-authorized system that
                delivers documents to the parties and their representatives or notifies
                them when documents have been added to the case file.
                 (3) Sent by any party or representative to another party or
                representative must be sent by any method allowed under paragraphs
                (a)(2)(i) through (iii) of this section, except that when sent by a
                reliable electronic method, the receiving party or representative must
                agree in writing to receive documents and information by that method.
                 (b) For purposes of paragraph (a) of this section, reliable
                electronic methods for delivering documents include, but are not
                limited to, email, facsimile and web portal.
                 (c) Any party or representative may revoke his or her agreement to
                receive documents and information electronically by giving written
                notice to the party or the representative with whom he or she had
                agreed to receive documents and information electronically.
                 (d) The provisions in paragraphs (a) through (c) of this section
                apply when parties are directed by the regulations in this subchapter
                to advise; apply; approve; authorize; demand; file; forward; furnish;
                give; give notice; inform; issue; make; notice, notify; provide;
                publish; receive; recommend; refer; release; report; request; respond;
                return; send; serve; service; submit; or transmit.
                 (e) Any reference in this subchapter to an application, copy,
                filing, form, letter, written notice, or written request includes both
                hard-copy and electronic documents.
                 (f) Any requirement in this subchapter that a document or
                information be submitted in writing, or that it be signed, executed, or
                certified does not preclude its submission or exchange electronically.
                 (g) Any requirement in this subchapter that a document be signed
                may be satisfied by an electronic signature.
                 (1) Definitions. For purposes of this paragraph--
                 Document means any form of writing submitted to OWCP, including
                applications, claim forms, notices of payments, and reports of injury.
                 Electronic signature means a mark on a document, created by
                electronic means, that indicates the signatory's endorsement of or
                assent to the terms of a document. An electronic signature may serve as
                the binding signature for a business or other corporate or collective
                entity if the signatory has the legal authority to bind the entity.
                 Electronic signature device means a code, password, or other
                mechanism that is used by a signatory to create or input electronic
                signatures on a document or to log in to an electronic signature
                program. The code, password, or mechanism must be unique to the
                signatory at the time the signature is created and the signatory must
                be uniquely entitled to use it. The device is compromised if the code
                or mechanism is available for use by any other person. Examples of such
                devices include a unique username and password, a PIN number or other
                numeric code, biometrics, cryptographic controls such as asymmetric or
                symmetric cryptography, and software that takes a scan of a user's ID.
                 Electronic signature program means a software application that
                allows a signatory to log in using an electronic signature device and
                electronically sign a document.
                 Signatory means any person who, on behalf of themselves or an
                entity for whom they are authorized to sign, places an electronic
                signature on a document.
                 (2) Acceptable methods of creating an electronic signature
                include--
                 (i) The use of an electronic signature device;
                 (ii) The use of an electronic signature program, provided that such
                program includes the use of an electronic signature device;
                 (iii) The signatory typing their name onto an electronic document
                following a ``/s'' mark;
                 (iv) The signatory using a mouse, touchpad, stylus, or other
                equivalent device to physically draw their signature on a display
                screen;
                 (v) Other methods allowed by OWCP.
                 (3) A document containing multiple electronic signatures may
                utilize the same method or methods of signing with respect to each
                signature, or may utilize different methods, provided the methods are
                acceptable methods pursuant to paragraph (g)(2) of this section.
                [[Page 80709]]
                 (4) Entities submitting electronically-signed documents must--
                 (i) Ensure that all signatures allow OWCP to clearly identify the
                signatory. Any signature made on behalf of a business or other
                collective entity should identify the individual person signing.
                 (ii) Keep a record of how the electronic signature was obtained,
                including any electronic signature programs and/or electronic signature
                devices used, and be able to provide this information at OWCP's
                request.
                 (iii) Keep a record of the date the signature was created and be
                able to provide this information at OWCP's request.
                 (h) Any reference in this subchapter to transmitting information to
                an entity's address may include that entity's electronic address or
                electronic portal.
                 (i) Subject to paragraph (a) of this section, any requirement in
                this subchapter that a document or information--
                 (1) Be sent to a specific district director means that the document
                or information should be sent to the electronic (or physical when
                permitted) address provided by OWCP for that district director; and
                 (2) Be filed by a district director in his or her office means that
                the document or information may be filed in an electronic (or physical
                when permitted) location specified by OWCP for that district director.
                0
                3. Revise Sec. 702.203(b) to read as follows:
                Sec. 702.203 Employer's report; how given.
                 (a) * * *
                 (b) Employers may send a report of injury to the district director
                electronically through an OWCP-authorized system (see Sec.
                702.101(a)(1)). If the employer sends its report of injury by U.S.
                postal mail, the report will be considered filed on the date that the
                employer mails the document. If the report is filed by mail, the
                employer must retain documentation demonstrating when the report was
                mailed.
                0
                4. Revise Sec. 702.204 to read as follows:
                Sec. 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
                Sec. 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 $24,441 for each such failure, refusal, false statement,
                or misrepresentation for which penalties are assessed after January 15,
                2020.
                 (1) For purposes of failing or refusing to send a report required
                by Sec. 702.201, an employer, insurance carrier, or self-insured
                employer--
                 (i) Acts knowingly if it has actual knowledge of the employee's
                injury or death, that the injury or death is likely covered by the Act,
                and that a report is required; or if it had reason to know about the
                employee's injury or death, that the injury or death is likely covered
                by the Act, and that a report is required.
                 (ii) Acts willfully if it intentionally disregards the reporting
                requirement or is indifferent to the reporting requirement.
                 (2) Proof of either a false statement or misrepresentation made
                knowingly and willfully in a report required by Sec. 702.201 is
                sufficient to warrant imposition of a penalty under this section.
                 (b) The district director has the authority and responsibility for
                assessing the penalty described in paragraph (a) of this section using
                the procedures set forth at subpart I of this part.
                 (c) In determining the penalty amount under paragraph (a) of this
                section, the district director will consider how many penalties, if
                any, have been assessed against the employer, insurance carrier, or
                self-insured employer in the two years preceding the most recent
                reporting violation. In determining the number of prior penalties
                assessed, the district direct will include penalties assessed against
                an entity's parent company, subsidiaries, and related entities. The
                district director will assess a penalty in an amount equaling the
                following percentages of the maximum penalty, rounded up to the next
                dollar:
                 Table 1 to Paragraph (c)
                ------------------------------------------------------------------------
                 Percentage
                 of maximum
                 Number of violations penalty
                 assessed
                ------------------------------------------------------------------------
                First late/falsified report:............................... 2
                Second late/falsified report:.............................. 4
                Third late/falsified report:............................... 8
                Fourth late/falsified report:.............................. 16
                Fifth late/falsified report:............................... 32
                Sixth late/falsified report:............................... 64
                Seventh (and above) late/ falsified report:................ 100
                ------------------------------------------------------------------------
                0
                5. Revise Sec. 702.215 to read as follows:
                Sec. 702.215 Notice; how given.
                 Notice must be effected by delivering it to the individual
                designated to receive such notices at the physical or electronic
                address designated by the employer. Notice may be given to the district
                director by submitting a copy of the form supplied by OWCP to the
                district director electronically through an OWCP-authorized system, by
                mail, or orally in person or by telephone.
                0
                6. Revise the section heading of Sec. 702.233 to read as follows:
                Sec. 702.233 Additional compensation for failure to pay without an
                award.
                * * * * *
                0
                7. Revise Sec. 702.236 to read as follows:
                Sec. 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 Sec. 702.235
                shall be assessed a civil penalty in the amount of $297 for any
                violation for which penalties are assessed after January 15, 2020. The
                district director has the authority and responsibility for assessing
                this penalty using the procedures set forth at Subpart I of this part.
                0
                8. Revise Sec. 702.241 to read as follows:
                Sec. 702.241 Settlements: Definitions; general information.
                 (a) As used in Sec. Sec. 702.241 through 702.243, the term--
                 Adjudicator means district director or administrative law judge
                (ALJ).
                 Compensation case means a claim for compensation or other statement
                indicating potential entitlement to compensation or benefits.
                 Counsel means any attorney admitted to the bar of any state,
                territory, or the District of Columbia.
                 (b) Parties may settle a compensation case only with an
                adjudicator's approval. The settlement may include disability
                compensation, death benefits, medical benefits, attorney's fees, and
                costs. An adjudicator must approve the settlement unless it is
                inadequate or was procured by duress. If all parties to the settlement
                are represented by counsel, completed applications will be deemed
                approved unless specifically disapproved by an adjudicator within 30
                days of receipt of the application unless the adjudicator requests
                additional information under Sec. 702.243(a).
                 (c) Receipt of a settlement application occurs--
                 (1) For submissions to a district director, on the day OWCP
                receives a complete application.
                 (2) For submissions to an ALJ, when the application is considered
                filed under the OALJ's rules of practice and procedure (29 CFR part
                18).
                 (3) For compensation cases pending before a higher tribunal, the
                date the tribunal takes action indicating the
                [[Page 80710]]
                adjudicator should consider the settlement (e.g., enters an order
                remanding the case, dismisses the appeal).
                 (d) The 30-day period for consideration of a settlement begins the
                day after the adjudicator's receipt of a complete application. If the
                30th day is a Saturday, Sunday, or legal holiday, the next business day
                will be considered the 30th day.
                 (e) An agreement by the parties to settle a compensation case is
                limited to the rights of the parties and to claims then in existence.
                Settlement of disability compensation or medical benefits for the
                injured employee will not affect, in any way, the right of the
                employee's survivor(s) to claim death benefits.
                0
                9. Revise Sec. 702.242 to read as follows:
                Sec. 702.242 Settlement application; contents and submission
                 (a) A settlement application must be made on a form prescribed by
                OWCP. The settlement application must include all information required
                by the form, including--
                 (1) A brief summary of the facts of the case, including a
                description of the incident; a description of the nature of the injury;
                the degree of impairment or disability; the claimant's average weekly
                wage; and a summary of compensation paid;
                 (2) The amounts to be paid under the settlement for compensation,
                medical benefits, death benefits, attorney's fees and costs, as
                appropriate;
                 (3) The signatures of all parties agreeing to the settlement as
                stated in the application and attesting that the settlement is adequate
                and was not procured by duress; and
                 (4) If the settlement application includes the parties' agreement
                on more than one form of compensation or benefits, a statement whether
                the parties agree to settle the parts independently if the adjudicator
                does not approve the settlement in its entirety.
                 (b) The adjudicator may request additional information from the
                parties if he or she believes, under the particular circumstances of
                the case, that such information is necessary to determine whether the
                settlement is adequate or has been procured by duress.
                 (c) The adjudicator will not consider any information a party
                submits other than the settlement application required by paragraph (a)
                of this section, additional information requested by the adjudicator
                under paragraph (b) of this section, or information in the case record
                before the settlement application is filed.
                 (d) To submit a completed settlement application--
                 (1) The parties must submit the application to a district director
                in all cases unless the case is pending before the OALJ. Submission
                must be made under the procedures set forth at Sec. 702.101(a) except
                that if a hard copy is submitted under that provision, the application
                must be sent by certified mail with return receipt requested or by a
                commercial delivery service with tracking capability that provides
                reliable proof of delivery to the district director.
                 (2) In cases pending before the OALJ, the parties may either--
                 (i) Request that the case be remanded to the district director for
                consideration of the application and, after remand, file the
                application with a district director under paragraph (d)(1) of this
                section; or
                 (ii) Submit the application to OALJ under the procedures set forth
                in the OALJ's rules of practice and procedures (29 CFR part 18) for
                consideration.
                 (e) If the parties submit a settlement application to a district
                director while the compensation case is pending at the Benefits Review
                Board or a court, the parties must notify the Board or the court and
                request that the case be remanded or otherwise returned to the district
                director for consideration of the application.
                0
                10. Revise Sec. 702.243 to read as follows:
                Sec. 702.243 Settlement approval and disapproval.
                 (a) Within 30 days of receipt, the adjudicator must evaluate the
                settlement application and notify the parties in writing if the
                application is incomplete or if the adjudicator requests additional
                information. If all parties are represented by counsel, any such notice
                must also state that the 30-day period in Sec. 702.241(b) will not
                commence until the adjudicator receives the completed application and
                the additional information.
                 (b) The adjudicator must issue a compensation order approving or
                disapproving the settlement application, and file and serve it on the
                parties in accordance with Sec. 702.349 unless the settlement has
                already been deemed approved under paragraph (f) of this section. If
                the adjudicator disapproves the settlement application in any part, the
                order must include the adjudicator's reasons for finding the settlement
                inadequate or procured by duress.
                 (c) In determining whether the settlement is adequate and procured
                without duress, the adjudicator must consider all of the information
                required by Sec. 702.242(a), any additional information requested
                under Sec. 702.242(b), and the parties' attestations in the settlement
                application, to which the adjudicator may defer.
                 (d) If the adjudicator disapproves any part of a settlement
                application, the entire application is disapproved unless the parties
                have stated in the application that they agree to settle the parts
                independently.
                 (e) After a settlement application is disapproved by--
                 (1) A district director, the parties may submit an amended
                application to the district director or request a hearing before an ALJ
                on either the settlement disapproval or the merits of the case under
                sections 8 and 19 of the Act, 33 U.S.C. 908 and 919.
                 (2) An ALJ, the parties may submit an amended application to the
                ALJ, file an appeal with the Benefits Review Board under section 21 of
                Act, 33 U.S.C. 921, or proceed with a hearing on the merits of the
                case.
                 (f) If all parties to the settlement are represented by counsel and
                the adjudicator does not formally approve or disapprove the application
                within 30 days after receipt of a complete settlement application and
                any additional requested information (see Sec. 702.242(b)), the
                application will be deemed approved. A settlement application that is
                deemed approved under this paragraph will be considered filed in the
                office of the district director on the last day of the 30-day period as
                calculated under Sec. 702.241(d).
                 (g) The liability of an employer/insurance carrier is not
                discharged until the settlement is specifically approved by a
                compensation order issued by the adjudicator or deemed approved under
                Sec. 702.241(b) and paragraph (f) of this section.
                 (h) Attorney's fees in a settlement application may include fees
                for work performed before other adjudicators and tribunals. If the
                settlement is approved, the attorney's fees will be considered approved
                within the meaning of Sec. 702.132.
                 (i) When parties settle cases being paid under a final compensation
                order where no substantive issues are in dispute, the adjudicator, in
                determining whether the proposed settlement amount is adequate, may
                compare the amount to the present value of future compensation payments
                commuted, computed by:
                 (1) Determining the probability of the death of the beneficiary
                before the expiration of the period during which he or she is entitled
                to compensation according to a current life expectancy table or
                calculator specified by OWCP; and
                [[Page 80711]]
                 (2) Applying the discount rate specified at 28 U.S.C. 1961.
                0
                11. In Sec. 702.271:
                0
                a. Revise the section heading and paragraph (a);
                0
                b. Redesignate paragraphs (b) through (d) as (c) through (e); and
                0
                c. Add new paragraph (b).
                 The revisions and addition read as follows:
                Sec. 702.271 Discrimination against employees who bring proceedings;
                prohibition.
                 (a) No employer or its duly authorized agent may discharge or in
                any manner discriminate against an employee as to his or her employment
                because that employee:
                 (1) Has claimed or attempted to claim compensation under the Act;
                or
                 (2) Has testified or is about to testify in a proceeding under the
                Act.
                 (b) To discharge or refuse to employ a person who has been
                adjudicated to have filed a fraudulent claim for compensation or
                otherwise made a false statement or misrepresentation under section
                31(a)(1) of the Act, 33 U.S.C. 931(a)(1), is not a violation of
                paragraph (a) of this section.
                * * * * *
                0
                12. Revise Sec. 702.273 to read as follows:
                Sec. 702.273 Penalty for discrimination.
                 Any employer who violates Sec. 702.271(a) will be subject to a
                civil penalty of not less than $2,444 or more than $12,219 when
                assessed after January 15, 2020 to be paid by the employer alone (and
                not by a carrier). The district director has the authority and
                responsibility for assessing this penalty using the procedures set
                forth at subpart I of this part. Any penalty assessed by the district
                director prior to a hearing on the discrimination complaint will be
                stayed pending final resolution of the complaint by the Administrative
                Law Judge or higher tribunal.
                0
                13. Add subpart I to read as follows:
                Subpart I--Procedures for Civil Money Penalties
                Sec.
                702.901 Scope of this part.
                702.902 Definitions.
                702.903 Notice of penalty; response; consequences of no response.
                702.904 Decision on penalty after timely response; request for
                hearing.
                702.905 Referral to the Office of Administrative Law Judges.
                702.906 Decision and order of Administrative Law Judge.
                702.907 [Reserved]
                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.
                Subpart I--Procedures for Civil Money Penalties
                Sec. 702.901 Scope of this part.
                 (a) These procedures apply when the district director imposes the
                civil money penalties prescribed by Sec. 702.204, Sec. 702.236, or
                Sec. 702.273.
                 (b) The district director will deposit all penalties collected into
                the special fund described in section 44 of the Act, 33 U.S.C. 944.
                Sec. 702.902 Definitions.
                 In addition to the definitions provided in Sec. Sec. 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.
                Sec. 702.903 Notice of penalty; response; consequences of no
                response.
                 (a) The district director will serve a written notice through an
                electronic method authorized by OWCP or by trackable delivery method on
                each respondent against whom he or she is 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 penalty;
                 (2) Statutory and regulatory basis for the penalty;
                 (3) Amount of the proposed penalty, including an explanation for
                the amount set;
                 (4) Consequences of not submitting all documentation to the
                district director 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) Documentation regarding any facts relevant to the reason for
                the penalty; and
                 (2) Documentation supporting a request for mitigation of the
                penalty amount under Section 223 of the Small Business Regulatory
                Enforcement Fairness Act, 5 U.S.C. 601 (note), if the penalty arises
                under Sec. 702.236.
                 (d) Documentation not presented to the district director may not be
                admitted in any further proceedings before an Administrative Law Judge
                or other tribunal unless the respondent demonstrates exceptional
                circumstances prevented submission to the district director.
                 (e) If the respondent does not respond within 30 days of receipt of
                the notice, the assessment and amount of the penalty set forth in the
                notice will be deemed final, and collection and recovery of the penalty
                may be instituted under Sec. 702.911.
                Sec. 702.904 Decision on penalty after timely response; request for
                hearing.
                 (a) If the respondent files a timely response to the notice
                described in Sec. 702.903, the district director will review the facts
                and any argument presented and issue a decision on the penalty. The
                decision must--
                 (1) Include a statement of the reasons for the assessment and the
                amount of the penalty;
                 (2) Set forth the respondent's right to request a hearing on the
                district director's decision and the method for doing so; and
                 (3) Set forth the consequences of failing to timely respond to the
                decision as set forth in paragraph (d) of this section.
                 (b) The respondent has 15 days from receipt of the decision to
                request a hearing before an Administrative Law Judge by filing a
                request for hearing with the district director. The request must--
                 (1) Be dated;
                 (2) Be typewritten or legibly written;
                 (3) State the specific determinations in the district director's
                decision with which the respondent disagrees;
                 (4) Be signed by the respondent making the request or by the
                respondent's authorized representative;
                 (5) 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 notice, the assessment and amount of the penalty set
                forth in the district director's decision will be deemed final, and
                collection and recovery of the penalty may be instituted under Sec.
                702.912.
                Sec. 702.905 Referral to the Office of Administrative Law Judges.
                 (a) When the district director receives a request for hearing in
                response to a decision issued under Sec. 702.904, the district
                director will immediately notify
                [[Page 80712]]
                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 and decision issued under
                Sec. Sec. 702.903 and 702.904;
                 (2) The documentation upon which the district director relied in
                making his or her decision;
                 (3) All written responses and documentation filed by the respondent
                with the district director;
                 (4) A statement of the issues referred by the district director 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.
                Sec. 702.906 Decision and order of Administrative Law Judge.
                 (a) The Administrative Law Judge must consider only those issues
                referred by the district director for hearing.
                 (b) On issues properly before him or her, the Administrative Law
                Judge must limit his or her determinations to:
                 (1) Whether the respondent has violated the sections of the Act and
                regulations under which the penalty was assessed;
                 (2) The correctness of the penalty assessed by the district
                director as set forth in Sec. Sec. 702.204, 702.236, 702.271, and
                702.903(c)(2).
                 (c) The decision of the Administrative Law Judge must include a
                statement of findings and conclusions, with reasons and bases therefor,
                upon each material issue referred.
                 (d) On the date of issuance, the Administrative Law Judge must
                serve a copy of the decision and order on the district director and the
                respondent by a trackable delivery method.
                 (e) Any party may ask the Administrative Law Judge to reconsider
                his or her decision by filing a motion within 30 days of the date of
                issuance of the decision. A timely motion for reconsideration will
                suspend the running of the time for any party to file a petition for
                review under Sec. 702.908.
                 (f) If no party files a motion for reconsideration or petition for
                review within 30 days of the issuance of the Administrative Law Judge's
                decision, the decision will be deemed final, and collection and
                recovery of the penalty may be instituted under Sec. 702.912.
                 (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.
                Sec. 702.907 [Reserved]
                Sec. 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 decision was issued.
                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
                Sec. 702.906(e), any petition for review, 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 issuance of a
                decision on reconsideration.
                 (c) The petition for review must--
                 (1) Be dated;
                 (2) Be typewritten or legibly written;
                 (3) State the specific determinations in the Administrative Law
                Judge's decision with which the party disagrees;
                 (4) Be signed by the party or the party's authorized
                representative; and
                 (5) Attach 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 or
                alternative method required by the Secretary. Documents are not
                considered filed with the Secretary until actually received.
                Sec. 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.
                 (1) If the Secretary does not notify the parties within 30 days of
                the petition for review's filing that he or she 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.
                Sec. 702.910 Final decision of the Secretary.
                 The Secretary's review will be based upon 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.
                Sec. 702.911 Settlement of penalty.
                 At any time during proceedings under this subpart, the district
                director and the respondent may enter into a settlement of the penalty.
                Sec. 702.912 Collection and recovery of penalty.
                 (a) When the determination of the amount of the penalty becomes
                final (see Sec. Sec. 903(e), 904(d), 906(f), 909(a)(1), 910), 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.
                 (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 shall be represented by the Solicitor of
                Labor.
                Julia K. Hearthway,
                Director, Office of Workers' Compensation Programs.
                [FR Doc. 2020-23224 Filed 12-11-20; 8:45 am]
                BILLING CODE 4510-CR-P
                

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