Rules of Practice and Procedure

• Published date: 11 January 2021
• Record Number: 2020-28048
• Section: Proposed rules
• Court: Employees' Compensation Appeals Board

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

a credit union owned electronic facility that

meets, at a minimum, these requirements. A

service facility also includes a shared branch

or a shared branch network location,

including a shared ATM or other electronic

facility, if a credit union participates in a

shared branching network. This definition

does not include the credit union’s internet

website.

* * * * *

[FR Doc. 2020–28277 Filed 1–8–21; 8:45 am]

BILLING CODE 7535–01–P

DEPARTMENT OF LABOR

Employees’ Compensation Appeals

Board

20 CFR Part 501

RIN 1290–AA37

Rules of Practice and Procedure

AGENCY

: Employees’ Compensation

Appeals Board, Department of Labor.

ACTION

: Notice of proposed rulemaking;

request for comments.

SUMMARY

: The Department of Labor

(DOL or Department) is issuing this

Notice of Proposed Rulemaking (NPRM)

to seek public comments on a proposal

to require electronic filing (e-filing) and

electronic service (e-service) for

attorneys and lay representatives

representing parties in proceedings

before the Employees’ Compensation

Appeals Board (ECAB or the Board).

These proposed regulations would

establish e-filing and e-service rules of

practice and procedure for the Board

that would apply where a governing

statute, regulation, or executive order

does not establish contrary rules of

practice or procedure. The rule would

mandate e-filing, makes e-service

automatic of documents for parties

represented by attorneys and duly

authorized lay representatives, and

provides an option for pro se/self-

represented parties to utilize these

capabilities. It would also allow the

Board, in its discretion, to hold oral

arguments by videoconference.

DATES

: The Department invites

interested persons to submit comments

on the proposed rules of practice and

procedure. To ensure consideration,

comments must be in writing and must

be received by February 10, 2021.

ADDRESSES

: You may send comments,

identified by Regulatory Identification

Number (RIN) 1290–AA37, only by the

following method: Electronic

Comments. Submit comments through

the Federal eRulemaking Portal http://

www.regulations.gov. To locate the

proposed rule, use docket number DOL–

2020–0017 or key words such as

‘‘Administrative practice and

procedure’’ or ‘‘Workers’

compensation.’’ Follow the instructions

for submitting comments. All comments

must be received by 11:59 p.m. on the

date indicated for consideration in this

rulemaking.

Instructions: All submissions received

must include the agency name and

docket number or Regulatory

Information Number (RIN) for this

rulemaking. All comments received will

generally be posted without change to

https://www.regulations.gov, including

any personal information provided. If

you need assistance to review the

comments or the proposed rule, the

Department will consider providing the

comments and the proposed rule in

other formats upon request. For

assistance to review the comments or

obtain the proposed rule in an alternate

format, contact Mr. Thomas Shepherd,

Clerk of the Appellate Boards, at (202)

693–6319. Individuals with hearing or

speech impairments may access the

telephone number above by TTY by

calling the toll-free Federal Information

Relay Service at (800) 877–8339.

FOR FURTHER INFORMATION CONTACT

:

Thomas Shepherd, Clerk of the

Appellate Boards, at 202–693–6319 or

ECAB-Inquiries@dol.gov.

SUPPLEMENTARY INFORMATION

: This

preamble is divided into four sections:

Section I explains the process of issuing

a proposed rule concurrently with a

companion direct final rule; Section II

provides general background

information on the development of the

proposed rulemaking; Section III is a

section-by-section summary and

discussion of the proposed regulatory

text; and Section IV covers the

administrative requirements for this

proposed rulemaking.

I. Proposed Rule Published

Concurrently With Companion Direct

Final Rule

The Department is simultaneously

publishing with this proposed rule an

identical ‘‘direct final’’ rule elsewhere

in this issue of the Federal Register. In

direct final rulemaking, an agency

publishes a final rule with a statement

that the rule will go into effect unless

the agency receives significant adverse

comment within a specified period. If

the agency receives no significant

adverse comment in response to the

direct final rule, the rule goes into

effect. If the agency receives significant

adverse comment, the agency withdraws

the direct final rule and treats such

comment as submissions on the

proposed rule. The proposed rule then

provides the procedural framework to

finalize the rule. An agency typically

uses direct final rulemaking when it

anticipates the rule will be non-

controversial.

The Department has determined that

this rule is suitable for direct final

rulemaking. The proposed revisions to

the Board’s procedural regulations

would require representatives to use the

Board’s electronic system for filing and

serving documents unless exempted by

the Board for good cause. Some

represented parties are already filing

documents through the Board’s existing

electronic system on a voluntary basis.

Moreover, this system is similar to those

used by courts and other administrative

agency electronic systems and will thus

be familiar to the representatives. The

proposed rule would also give self-

represented (pro se) appellants the

option to file and serve documents

through the electronic system or via

conventional methods. It would also

allow the Board to hear oral argument

by videoconference under the same

discretionary criteria outlined in its

2008 proposal. These changes to the

Board’s procedures and practices are not

expected to be controversial and are

consistent with its statements in its

2008 proposal. 73 FR 35103 (‘‘[T]he

Board has anticipated that technological

advances may, in the future, allow the

filing, notice, service and presentation

of documents and argument by

electronic means.’’).

The comment period for this

proposed rule runs concurrently with

the comment period for the direct final

rule. Any comments received in

response to this proposed rule will also

be considered as comments regarding

the direct final rule and vice versa. For

purposes of this rulemaking, a

significant adverse comment is one that

explains (1) why the rule is

inappropriate, including challenges to

the rule’s underlying premise or

approach; or (2) why the direct final

rule will be ineffective or unacceptable

without a change. In determining

whether a significant adverse comment

necessitates withdrawal of this direct

final rule, the Department will consider

whether the comment raises an issue

serious enough to warrant a substantive

response had it been submitted in a

standard notice-and-comment process.

A comment recommending an addition

to the rule will not be considered

significant and adverse unless the

comment explains how this direct final

rule would be ineffective without the

addition.

The Department requests comments

on all issues related to this rule,

including economic or other regulatory

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impacts of this rule on the regulated

community. All interested parties

should comment at this time because

the Department will not initiate an

additional comment period on the

proposed rule even if it withdraws the

direct final rule.

This rule is not an E.O. 13771

regulatory action because this rule has

been determined by the Office of

Information and Regulatory Affairs as

not significant under E.O. 12866.

Pursuant to the Congressional Review

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

Information and Regulatory Affairs

designated this rule as not a ‘major rule,’

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

II. Background of This Rulemaking

The Board is proposing a rule that

would make e-filing and e-service

mandatory for parties represented by

attorneys and lay representatives. The

Board’s long-term goal is to have

entirely electronic case files (e-case

files), which would significantly benefit

both the Board and the participants in

Board appeals. All parties and

representatives, as well as appropriate

Board employees, would have access to

all of the Board’s case-related

documents through the Board’s case

management system at any time and

place, as long as they have access to the

internet. In addition, digitally filed and

served documents would allow the

Board to leverage its case management

system to more efficiently process

incoming documents and reduce the

time it takes to adjudicate appeals.

The Board’s case management system

is a consolidated web-based case

tracking system that was deployed in

FY2011 to replace individual legacy

applications and streamline business

processes specific to each of the

Department’s three Adjudicatory

Boards: the Administrative Review

Board (created in 1996) is the

adjudicatory Board that issues final

agency decisions for the Secretary of

Labor in cases arising under a variety of

worker protection laws; the Benefits

Review Board (created in 1972) reviews

appeals of administrative law judges’

decisions arising primarily under the

Black Lung Benefits Act, the Longshore

and Harbor Workers’ Compensation Act

and its extensions; and the Employees’

Compensation Appeals Board (ECAB)

(created in 1946) hears appeals taken

from determinations and awards under

the Federal Employees’ Compensation

Act by the Department’s Office of

Workers’ Compensation Programs

(OWCP) (whose predecessor agency was

the Bureau of Federal Employees’

Compensation as described in 20 CFR

1.6) with respect to claims of Federal

employees injured in performance of

duty.

The case management system has

provided a broad range of capabilities to

the staff of the Boards for inputting,

processing, tracking, managing, and

reporting specific details on thousands

of cases since the initial

implementation. In FY 2013, the system

was enhanced to provide access to the

general public. Specifically, users have

the ability to check their case status,

electronically file motions and briefs,

and receive Board issuances

electronically. Currently, more than

1,400 individuals are registered users of

the system.

At present, there are two methods for

placing the parties’ pleadings into an

electronic format for inclusion on the

Board’s case management system:

pleadings can be filed in an electronic

format; or pleadings can be digitally

imaged after they have been filed in

paper form. If e-filing and e-service

remains optional, it is unlikely that the

Board will achieve the goal of

completely electronic case files. If,

however, all pleadings submitted by

attorneys and lay representatives are e-

filed, imaging the remaining paper

pleadings from self-represented parties

(pro se parties) would be more

manageable and allow greater

efficiencies in the processing of appeals.

In addition, utilization of e-filing and e-

service will reduce case processing

times by eliminating, in most cases, the

timeframes required to allow for the

delivery of traditional mailings. These

time savings will allow the Board to

more efficiently process appeals without

any sacrifice of the quality of work and

will reduce mailing costs for the Board

and private parties.

Although the law requires Federal

agencies to provide information and

services via the internet, it also

mandates that agencies consider the

impact on persons without access to the

internet and, to the extent practicable,

ensure that the availability of

government services has not been

diminished for such persons. 44 U.S.C.

3501. Accordingly, the Board will make

e-filing and e-service optional for self-

represented parties. There is no known

legal restriction to a requirement that

attorneys and lay representatives use e-

filing and make e-service automatic, nor

are there undue costs or difficulties

imposed, particularly because a party

may obtain an exemption for good cause

shown. The Board notes that in this

regard, e-filing is generally mandatory

for attorneys in the Federal court

system. See 76 FR 56107 (Sept. 12,

2011) (Social Security Administration

final rule announcing that it will require

claimant representatives to use SSA’s

electronic services as they become

available on matters for which the

representatives request direct fee

payment); 76 FR 63537 (Oct. 13, 2011)

(U.S. Merit Systems Protection Board

pilot program requiring agencies and

attorneys representing appellants to file

pleadings electronically for appeals in

the Washington Regional Office and

Denver Field Office); 84 FR 14554 (Apr.

10, 2019) (Occupational Safety and

Health Review Commission final rule

adopting mandatory electronic filing

and service); 84 FR 37081 (July 31,

2019) (U.S. Patent and Trademark Office

final rule amending its Rules of Practice

in Trademark Cases and Rules of

Practice in Filings to mandate electronic

filing of trademark applications and

submissions associated with trademark

applications and registrations).

Individuals who are e-filing appeals to

the Board need access to a computer

with internet connectivity and an email

account.

III. Section-by Section Analysis of

Proposed Rule

Title 20

Part 501 Rules of Procedure

Section 501.3 Notice of Appeal

Current § 501.3(a) defines who may

‘‘file for review’’ from a final decision of

the Director. Proposed § 501.3(a) would

change the phrase ‘‘file for review’’ to

‘‘file an appeal’’ to reflect the

terminology contained in this section.

Current § 501.3(b) defines the ‘‘place

of filing’’ as with the Clerk of the

Appellate Boards at a specific mailing

address. Proposed § 501.3(b) would

define ‘‘how to file’’ appeals and all

post-appeal pleadings and motions,

requiring e-filing by attorneys and lay

representatives beginning 45 days after

the effective date of the rule and

allowing for e-filing by self-represented

appellants. This requirement applies

only to those documents filed 45 days

after the effective date or later. This time

period between the effective date, when

litigants can be certain that the direct

final rule will not be withdrawn, and

the applicability date, on which e-filing

becomes mandatory, allows those who

were previously filing and serving

documents by mail to adjust to

electronic filing.

Current § 501.3(c)(2) contains

requirements for the content of an

appeal to the Board regarding the name

and contact information for an appellant

or a deceased employee who is the

subject of an appeal. In addition it

requires a signed authorization

identifying the name and contact

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information of his or her representative,

if applicable. Proposed § 501.3(c)(2)

would require the identifying contact

information to include an email address.

Current § 501.3(c)(6) requires an

appellant to sign the notice of appeal.

Proposed § 501.3(c)(6) would allow for

the use of an electronic signature when

an appeal is electronically filed by a

registered user.

Current § 501.3(f) sets forth how the

date of filing an appeal is determined by

the Board for purposes of timeliness of

an appeal. Proposed § 501.3(f) would

change the word ‘‘Clerk’’ to ‘‘Clerk of

the Appellate Boards’’ to reflect the

terminology contained in this section.

Current § 501.3(f)(1) sets forth how

timeliness of an appeal is determined

and provides that a notice of appeal is

deemed to be ‘‘received when received

by the Clerk.’’ Proposed § 501.3(f)(1)

would include a provision for the

timeliness of an appeal when e-filed. It

also contains technical amendments to

change the terminology ‘‘United States

Mail’’ to ‘‘United States Postal Service’’;

‘‘Clerk’’ to ‘‘Clerk of the Appellate

Boards’’; and ‘‘received when received’’

to ‘‘filed when received.’’ Paragraph

(f)(2) would be renumbered to (f)(3), and

proposed new paragraph (f)(2) would

clarify that e-filed documents are

deemed filed as of the date and time the

Board’s electronic case management

system records its receipt and must be

filed by 11:59:59 p.m. Eastern Time on

the due date.

Current § 501.3(h) describes when a

notice of appeal will be considered

incomplete. Proposed § 501.3(h) would

change the terminology from ‘‘Clerk’’ to

‘‘Clerk of the Appellate Boards.’’

Section 501.4 Case Record; Inspection;

Submission of Pleadings and Motions

Current § 501.4(e) requires all filings

with the Board to include an original

and two copies. This proposal would

remove that paragraph because paper

copies are not necessary when e-filing,

and the Board no longer needs multiple

paper copies from self-represented

parties or those who are granted an

exemption from e-filing.

Section 501.5 Oral Argument

Current § 501.5 provides that oral

argument is held only in Washington,

DC. The proposal would allow the

Board, in its discretion, to hold oral

argument by videoconference. It also

provides that the notice to the parties

will specify whether the oral argument

is to be held in person or by

videoconference. This would provide

the Board with greater flexibility and

efficiency. Oral arguments (including

those conducted by videoconference)

will not be recorded because ECAB

decisions are not subject to further

review by OWCP or the courts.

IV. Administrative Requirements of the

Proposed Rulemaking

Regulatory Flexibility Act of 1980

Because no notice of proposed

rulemaking is required for this rule

under section 553(b) of the

Administrative Procedure Act, the

regulatory flexibility requirements of the

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

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

601(2).

Paperwork Reduction Act (PRA)

The Department has determined that

this proposed rule is not subject to the

requirements of the Paperwork

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

(PRA), as this rulemaking involves

administrative actions to which the

Federal government is a party or that

occur after an administrative case file

has been opened regarding a particular

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

Unfunded Mandates Reform Act of 1995

and Executive Order 13132, Federalism

The Department has reviewed this

proposed rule in accordance with the

requirements of Executive Order 13132

and the Unfunded Mandates Reform Act

of 1995, 2 U.S.C. 1501 et seq., and has

found no potential or substantial direct

effects on the states, on the relationship

between the national government and

the states, or on the distribution of

power and responsibilities among the

various levels of government. As there

is no Federal mandate contained herein

that could result in increased

expenditures by State, local, and tribal

governments, or by the private sector,

the Department has not prepared a

budgetary impact statement.

Executive Order 13175, Consultation

and Coordination With Indian Tribal

Governments

The Department has reviewed this

proposed rule in accordance with

Executive Order 13175 and has

determined that it does not have ‘‘tribal

implications.’’ The proposed rule does

not ‘‘have substantial direct effects on

one or more Indian tribes, on the

relationship between the Federal

government and Indian tribes, or on the

distribution of power and

responsibilities between the Federal

government and Indian tribes.’’

Executive Order 13211, Energy Supply,

Distribution, or Use

The Department has reviewed this

proposed rule and has determined that

the provisions of Executive Order 13211

are not applicable as this is not a

significant regulatory action and there

are no direct or implied effects on

energy supply, distribution, or use.

List of Subjects in 20 CFR Part 501

Administrative practice and

procedure; Claims; Government

employees; Worker’s compensation.

For the reasons set forth in the

preamble, the Department of Labor

proposes to amend 20 CFR part 501 as

follows:

PART 501 [AMENDED]

■1. The authority citation for Part 501

continues to read as follows:

Authority: Federal Employees’

Compensation Act, 5 U.S.C. 8101, et seq.

■2. Amend § 501.3 by revising

paragraphs (a), (b), (c)(2) and (6), (f), and

(h) to read as follows:

§ 501.3 Notice of Appeal.

(a) Who may file. Any person

adversely affected by a final decision of

the Director, or his or her authorized

Representative, may file an appeal of

such decision to the Board.

(b) How to file. (1) Beginning on

[DATE 45 DAYS AFTER EFFECTIVE

DATE OF FINAL RULE], attorneys and

lay representatives must file appeals

with the Board electronically through

the Board’s case management system,

along with all post-appeal pleadings and

motions as set forth in paragraphs (d)

and (h) of this section and §§ 501.4(b)

through (d), 501.5(b) and (g); 501.7 (a),

(e), and (f), and 501.9(b), (c), and (e).

(2) Attorneys and lay representatives

may request an exemption (pursuant to

§ 501.4(d)) for good cause shown. Such

a request must include a detailed

explanation why e-filing or acceptance

of e-service should not be required.

(3) Self-represented parties may either

file appeals electronically through the

Board’s case management system or file

appeals by mail or other method of

delivery to the Clerk of the Appellate

Boards at 200 Constitution Avenue NW,

Washington, DC 20210.

(c) * * *

(2) Full name, address, email address,

and telephone number of the Appellant

and the full name of any deceased

employee on whose behalf an appeal is

taken. In addition, the Appellant must

provide a signed authorization

identifying the full name, address, email

address, and telephone number of his or

her representative, if applicable.

* * * * *

(6) Signature: An Appellant must sign

the notice of appeal. A filing made

electronically through the Board’s case

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management system by a registered user

containing the Appellant’s name in an

appropriate signature block constitutes

the Appellant’s signature.

* * * * *

(f) Date of filing. A notice of appeal

complying with this paragraph (c) is

considered to have been filed only if

received by the Clerk of the Appellate

Boards within the period specified

under paragraph (e) of this section,

except as otherwise provided in this

subsection:

(1) If the notice of appeal is sent via

the U.S. Postal Service or commercial

carrier and use of the date of delivery

as the date of filing would result in a

loss of appeal rights, the appeal will be

considered to have been filed as of the

date of the postmark or other carriers’

date markings. The date appearing on

the U.S. Postal Service postmark or

other carriers’ date markings (when

available and legible) shall be prima

facie evidence of the date of mailing. If

there is no such postmark or date

marking, or it is illegible, then other

evidence including, but not limited to,

certified mail receipts, certificate of

service, and affidavits, may be used to

establish the mailing date. If a notice of

appeal is delivered or sent by means

other than the U.S. Postal Service or

commercial carrier, including e-filing,

personal delivery, or fax, the notice is

deemed to be filed when received by the

Clerk of the Appellate Boards.

(2) For electronic filings made

through the Board’s case management

system, a document is deemed filed as

of the date and time the Board’s

electronic case management system

records its receipt, even if transmitted

after the close of business. To be

considered timely, an e-filed document

or pleading must be filed by 11:59:59

p.m. Eastern Time on the due date.

(3) In computing the date of filing, the

180-day time period for filing an appeal

begins to run on the day following the

date of the OWCP decision. The last day

of the period so computed shall be

included, unless it is a Saturday,

Sunday or Federal holiday, in which

event the period runs to the close of the

next business day.

* * * * *

(h) Incomplete notice of appeal. Any

timely notice of appeal that does not

contain the information specified in

paragraph (c) of this section will be

considered incomplete. On receipt by

the Board, the Clerk of the Appellate

Boards will inform Appellant of the

deficiencies in the notice of appeal and

specify a reasonable time to submit the

requisite information. Such appeal will

be dismissed unless Appellant provides

the requisite information in the

specified time.

§ 501.4 [Amended]

■3. Amend § 501.4 by removing

paragraph (e).

■4. Amend § 501.5 by revising

paragraphs (c) and (f) to read as follows:

§ 501.5 Oral argument.

* * * * *

(c) Notice of argument. If a request for

oral argument is granted, the Clerk will

notify the Appellant and the Director at

least 30 days prior to the date set for

argument. The notice of oral argument

will state the issues that the Board has

determined will be heard and whether

the oral argument will take place in

person in Washington, DC or by

videoconference.

* * * * *

(f) Location. Oral argument in person

is heard before the Board only in

Washington, DC. The Board may, in its

discretion, hear oral argument by

videoconference. The Board does not

reimburse costs associated with an oral

argument.

* * * * *

Signed on this 14th day of December, 2020,

in Washington, DC.

Eugene Scalia,

Secretary of Labor.

[FR Doc. 2020–28048 Filed 1–8–21; 8:45 am]

BILLING CODE 4510–31–P

DEPARTMENT OF LABOR

Employment and Training

Administration

20 CFR Parts 641, 655, 658, 667, and

683

Office of Workers’ Compensation

Programs

20 CFR Part 726

Office of the Secretary of Labor

29 CFR Parts 7, 8, 22, 24, 26, 29, 37,

38, and 96

Office of Labor-Management

Standards

29 CFR Parts 417 and 458

Wage and Hour Division

29 CFR Parts 500, 525, 530, and 580

Occupational Safety and Health

Administration

29 CFR Parts 1978, 1979, 1980, 1981,

1982, 1983, 1984, 1985, 1986, 1987, and

1988

Office of Federal Contract Compliance

Programs

41 CFR Part 60–30

RIN 1290–AA28

Rules of Practice and Procedure

Concerning Filing and Service and

Amended Rules Concerning Filing and

Service

AGENCY

: Employment and Training

Administration, Office of Workers’

Compensation Programs, Office of the

Secretary, Office of Labor-Management

Standards, Wage and Hour Division,

Occupational Safety and Health

Administration, Office of Federal

Contract Compliance Programs.

ACTION

: Notice of proposed rulemaking;

request for comments.

SUMMARY

: The Department of Labor

(Department or DOL) is issuing this

Notice of Proposed Rulemaking (NPRM)

to seek public comments on a proposal

to require electronic filing (e-filing) and

make acceptance of electronic service

(e-service) automatic for attorneys and

non-attorney representatives

representing parties in proceedings

before the Administrative Review Board

(Board), unless the Board authorizes

non-electronic filing and service for

good cause. Self-represented persons

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