[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]
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