[Federal Register Volume 86, Number 6 (Monday, January 11, 2021)]
[Proposed Rules]
[Pages 1857-1862]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-28058]


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DEPARTMENT OF LABOR

Benefits Review Board

20 CFR Part 802

RIN 1290-AA35


Rules of Practice and Procedure

AGENCY: Benefits Review Board, Department of Labor.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Labor is issuing this Notice of Proposed 
Rulemaking to seek public comments on a proposal to require electronic 
filing (e-filing) and make acceptance of electronic service (e-service) 
automatic by attorneys and lay representatives representing parties in 
proceedings before the Benefits Review Board (Board), and to provide an 
option for self-represented parties to utilize these electronic 
capabilities.

DATES: The Department invites interested persons to submit comments on 
the proposed rules of practice and procedure. To ensure consideration, 
comments must be in writing and must be received by February 10, 2021.

ADDRESSES: You may submit comments, identified by Regulatory 
Identification Number (RIN) 1290-AA35, only by the following method: 
Electronic Comments. Submit comments through the Federal eRulemaking 
Portal http://www.regulations.gov. To locate the proposed rule, use 
docket number DOL-2020-0013 or key words such as ``Administrative 
practice and procedure,'' ``Black lung benefits,'' ``Longshore and 
harbor workers,'' or ``Workers' compensation.'' Follow the instructions 
for submitting comments. All comments must be received by 11:59 p.m. on 
the date indicated for consideration in this rulemaking.
    Instructions: All submissions received must include the agency name 
and docket number or RIN for this rulemaking. All comments received 
generally will be posted without change to http://www.regulations.gov, 
including any personal information provided. Therefore, the Department 
recommends that commenters safeguard their personal information by not 
including social security numbers, personal addresses, telephone 
numbers, or email addresses in comments. It is the

[[Page 1858]]

responsibility of the commenter to safeguard personal information.
    If you need assistance to review the comments and the proposed 
rule, the Department will consider providing the comments and the 
proposed rule in other formats upon request. For assistance to review 
the comments or obtain the proposed rule in an alternate format, 
contact Mr. Thomas Shepherd, Clerk of the Appellate Boards, at (202) 
693-6319.

FOR FURTHER INFORMATION CONTACT: Mr. Thomas Shepherd, Clerk of the 
Appellate Boards, at (202) 693-6319 or [email protected]. 
Individuals with hearing or speech impairments may access this 
telephone number by TTY by calling the toll-free Federal Information 
Relay Service at (800) 877-8339.

SUPPLEMENTARY INFORMATION: This preamble is divided into four sections: 
Section I describes the process of rulemaking using a direct final rule 
with a companion proposed rule; Section II provides general background 
information on the development of the proposed rulemaking; Section III 
is a section-by-section summary and discussion of the proposed 
regulatory text; and Section IV covers the administrative requirements 
for this proposed rulemaking.

I. Proposed Rule Published Concurrently With Companion Direct Final 
Rule

    The Department is simultaneously publishing with this proposed rule 
an identical ``direct final'' rule elsewhere in this issue of the 
Federal Register. In direct final rulemaking, an agency publishes a 
final rule with a statement that the rule will go into effect unless 
the agency receives significant adverse comment within a specified 
period. If the agency receives no significant adverse comment in 
response to the direct final rule, the rule goes into effect. If the 
agency receives significant adverse comment, the agency withdraws the 
direct final rule and treats such comment as submissions on the 
proposed rule. The proposed rule then provides the procedural framework 
to finalize the rule. An agency typically uses direct final rulemaking 
when it anticipates the rule will be non-controversial.
    The Department has determined that this rule is suitable for direct 
final rulemaking. The proposed revisions to the Board's procedural 
regulations would require represented parties, unless exempted by the 
Board for good cause shown, to file documents via the Board's new 
electronic case management system, which will also automatically serve 
these documents on registered system users. Some parties are already e-
filing documents with the Board on a voluntary basis. Moreover, this 
new system is similar to those used by courts and other administrative 
agencies and will thus be familiar to the representatives. The proposed 
rule also would give self-represented (pro se) parties the option to 
file and serve documents through the electronic case management system 
or via conventional methods. These changes to the Board's procedures 
and practices should not be controversial. The Department has 
determined that this rule is exempt from the notice and comment 
requirements under 5 U.S.C. 553(b) as a rule of agency practice and 
procedure. Nonetheless, the agency has decided to allow for public 
input by issuing a direct final rule and concurrent notice of proposed 
rulemaking.
    The comment period for this proposed rule runs concurrently with 
the comment period for the direct final rule. Any comments received in 
response to this proposed rule also will be considered as comments 
regarding the direct final rule and vice versa. For purposes of this 
rulemaking, a significant adverse comment is one that explains (1) why 
the rule is inappropriate, including challenges to the rule's 
underlying premise or approach; or (2) why the direct final rule will 
be ineffective or unacceptable without a change. In determining whether 
a significant adverse comment necessitates withdrawal of the direct 
final rule, the Department will consider whether the comment raises an 
issue serious enough to warrant a substantive response had it been 
submitted in a standard notice-and-comment process. A comment 
recommending an addition to the rule will not be considered significant 
and adverse unless the comment explains how the rule would be 
ineffective without the addition.
    The Department requests comments on all issues related to this 
rule, including economic or other regulatory impacts of this rule on 
the regulated community. All interested parties should comment at this 
time because the Department will not initiate an additional comment 
period on the proposed rule even if it withdraws the direct final rule.
    This rule is not an E.O. 13771 regulatory action because the Office 
of Information and Regulatory Affairs has determined it is not 
significant under E.O. 12866.
    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), 
the Office of Information and Regulatory Affairs designated this rule 
as not a ``major rule,'' as defined by 5 U.S.C. 804(3).

I. Background of This Rulemaking

    The Department promulgates this rule under the authority of 5 
U.S.C. 301, as well as the Black Lung Benefits Act, 30 U.S.C. 901 et 
seq., and the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 
901 et seq.
    The Board is proposing a rule that would make e-filing mandatory 
and acceptance of e-service automatic for parties represented by 
attorneys and lay representatives. E-filing has been optional and e-
service was not available through the Board's prior electronic system. 
As a result, the Board would receive filings in both paper and 
electronic form. The Board's long-term goal is to have entirely 
electronic case files (e-case files), which the Board believes will 
significantly benefit both the Board and the participants in Board 
appeals by allowing the Board to more efficiently process incoming 
documents and to reduce the time it takes to adjudicate claims. 
Requiring attorneys and lay representatives to use e-filing and 
automatically receive service of e-filed documents through the 
Department's electronic case management system will help the Board move 
toward this goal.
    The Board previously used DOL Appeals, a consolidated web-based 
case tracking system deployed in FY2011 to replace individual legacy 
applications and streamline business processes specific to each of the 
three Adjudicatory Boards in the Department: the Board, the 
Administrative Review Board (ARB), and the Employees' Compensation 
Appeals Board (ECAB). The Board reviews appeals of administrative law 
judges' decisions arising under the Black Lung Benefits Act, and the 
Longshore and Harbor Workers' Compensation Act and its extensions. The 
ARB issues decisions in cases arising under a variety of worker 
protection laws, including those governing environmental, 
transportation, and securities whistleblower protections; H-1B 
immigration provisions; child labor; employment discrimination; job 
training; seasonal and migrant workers; and Federal construction and 
service contracts. ECAB hears appeals taken from determinations and 
awards under the Federal Employees' Compensation Act with respect to 
claims of Federal employees injured in the course of their employment.
    The DOL Appeals case management system provided a broad range of 
capabilities to the Adjudicatory Boards' staff for inputting, 
processing, tracking,

[[Page 1859]]

managing, and reporting specific details on thousands of cases since 
its initial implementation. In FY2013, the system was enhanced to 
provide access to parties. More than 1,400 individuals were registered 
users of the DOL Appeals system. Users had the ability to check their 
case status, electronically file motions and briefs, and receive Board 
issuances electronically. However, users who e-filed documents still 
had to serve those documents on other parties by some other method 
(typically mail, commercial delivery, or electronic mail), as DOL 
Appeals did not have an automatic e-service function like that of the 
Federal courts' electronic filing system. Moreover, because e-filing 
has been optional, the Board received, and still receives, many paper 
filings, including from attorneys and lay representatives.
    At present, the Board lacks sufficient resources to digitally image 
all pleadings received in paper form, and that option is unduly 
burdensome and labor intensive. Furthermore, if e-filing remains 
optional, it is unlikely that the Board will achieve the goal of 
completely electronic case files. If, however, attorneys and lay 
representatives are required to e-file all documents through the 
Board's new case management system, imaging the remaining paper 
pleadings from self-represented parties would be manageable for the 
Board. In addition, greater utilization of e-filing and e-service 
through the new case management system will reduce case processing 
times by eliminating the timeframes required to allow for the delivery 
of traditional mailings. These time savings will allow the Board to 
more efficiently process appeals without any sacrifice to quality of 
work and will also greatly reduce mailing and copying costs for both 
the Board and the parties.
    Although Federal agencies are required by law to provide 
information and services via the internet, agencies must also consider 
the impact on persons without access to the internet and, to the extent 
practicable, ensure that the availability of government services has 
not been diminished for such persons. 44 U.S.C. 3501 note. Accordingly, 
the Board will make e-filing and e-service optional for self-
represented parties. The Board sees no legal restriction to making e-
filing mandatory and acceptance of e-service automatic for attorneys 
and lay representatives, and does not believe it would impose undue 
costs or difficulties for them, particularly since a party may obtain 
an exemption for good cause shown. The Board notes in this regard that 
e-filing is generally mandatory for attorneys in the Federal district 
courts and U.S. Courts of Appeals; unless an exemption is granted, only 
self-represented parties have the option of filing pleadings in paper 
form. The Board also notes that, consistent with the Federal courts, 
the Department's electronic case management system requires the filer 
to convert other electronic formats to Portable Document File (PDF) 
before filing. Parties filing via the electronic case management system 
need a computer, access to email and the internet, and the ability to 
convert documents to a PDF format. The rule also provides that 
registered electronic case management system users are deemed to accept 
service of all documents through the system. The Board will issue 
decisions and orders electronically to registered users who are parties 
to a case.

III. Section-by-Section Analysis of Proposed Rules

    The Board proposes to remove and reserve the following sections: 
Sec.  802.204, Place for filing notice of appeal and correspondence; 
Sec.  802.207, When a notice of appeal is considered to have been filed 
in the office of the Clerk of the Board; and Sec.  802.216, Service and 
form of papers. The Board is making this change to clarify and 
consolidate its rules governing computation of time in current Sec.  
802.221, filing of documents in new Sec.  802.222, and service of 
documents in new Sec.  802.223.
    In general, the provisions in Sec. Sec.  802.204, 802.207, and 
802.216 will be moved into these three consolidated regulations and 
revised to accommodate mandatory e-filing and automatic acceptance of 
e-service for represented parties. The Board has proposed, however, to 
remove from its regulations the requirement in Sec.  802.204 that a 
party who files a notice of appeal must serve a copy of it on the 
``deputy commissioner'' (an official who is now called ``district 
director,'' 20 CFR 701.301(a)(7), 725.101(a)(16)). This non-statutory 
procedure is no longer required because the Board routinely provides 
the district director with notice of each appeal filed.

Sec. 802.219 Motions to the Board; Orders

    The Board proposes to amend Sec.  802.219(d) to replace the current 
cross-reference to Sec.  802.216, a regulation the Board proposes to 
remove, with cross-references to new Sec. Sec.  802.222 and 802.223. 
The new regulations will govern filing and service of motions made to 
the Board.

Sec. 802.221 Computation of Time

    The Board proposes to amend Sec.  802.221 in several ways. Proposed 
paragraph (a) retains the same general time computation rule as in 
current paragraph (a) but substitutes the word ``must'' for ``shall'' 
wherever it occurs. This substitution is consistent with Executive 
Order 13563, which states that regulations must be ``written in plain 
language[.]'' 76 FR 3821 (Jan. 18, 2011). No alteration in meaning is 
intended by this change.
    Proposed paragraph (b) is limited to computing time for 
nonelectronic documents. Paragraph (b)(1) retains the current provision 
that, when sent by mail, the time period calculated under paragraph (a) 
is satisfied if the document is mailed within that time period, as 
demonstrated by postmark or other evidence. Paragraph (b)(2) adds a new 
provision to address the widespread use of commercial carriers (e.g., 
FedEx, UPS) for delivering documents. The rule provides that the time 
period calculated under paragraph (a) is satisfied if delivered to the 
carrier within that time period, as evidenced by the carrier's receipt 
or tracking information.
    Proposed paragraph (c) is a new provision that addresses electronic 
filings made through the case management system. The time period 
calculated under paragraph (a) is deemed met if the pleading is filed 
by 11:59:59 p.m. Eastern Time on the due date. The Board chose the 
Eastern Time zone based on the fact that Washington, DC is located 
within it. This mirrors the approach of Federal courts. See, e.g., Fed. 
R. App. P. 26(a)(4); Fed. R. Civ. P. 6(a)(4). Finally, proposed 
paragraph (d), which notes that waivers of filing time limits may be 
requested by motion (except for notices of appeal), is identical to 
current paragraph (c).

Sec. 802.222 Filing Notice of Appeal, Pleadings, and Other 
Correspondence

    Proposed Sec.  802.222 is a new rule containing all filing 
requirements. The rule incorporates many of the general provisions in 
current Sec.  802.216 and adds additional provisions for electronic 
filings. The rule also includes the special provisions for determining 
when a notice of appeal is filed that currently appear in Sec.  
802.207. Placing all of this information in one section will clarify 
the parties' obligations when filing any pleading, exhibit, or other 
document with the Board.
    Proposed paragraph (a) contains the general requirements that apply 
to all pleadings, including captions, certificates of service, 
signatures, and

[[Page 1860]]

formatting. Because documents in a case may need to be served by more 
than one method, paragraph (a)(2) requires the parties to include 
detailed service information on the certificate of service. To simplify 
signatures on electronic filings, paragraph (a)(3) provides that 
pleadings filed via the case management system will be deemed signed by 
the filing person.
    Proposed paragraph (b) is a new provision requiring filing parties 
to redact certain personally identifiable and sensitive information 
from all documents filed with the Board. The rule is intended to 
protect the interests of the parties, minors who may be involved in a 
case, and the public generally. The language of this rule is based on 
similar rules in the Federal courts. See, e.g., Fed. R. Civ. P. 5.2(a); 
see also Fed. R. App. P. 25(a)(5).
    Proposed paragraph (c) governs nonelectronic filings. It retains 
the current requirements for submitting paper documents (e.g., parties 
must file an original and two copies of each pleading) and includes the 
Board's address, which is currently located in Sec.  802.204.
    Proposed paragraph (d) is an entirely new provision addressing 
electronic filings. Paragraph (d)(1) requires attorneys and lay 
representatives to register for the electronic case management system 
and file all documents through it. This requirement applies only to 
those documents filed 45 days after the effective date or later. This 
time period between the effective date, when litigants can be certain 
that the direct final rule will not be withdrawn, and the applicability 
date, on which e-filing becomes mandatory, allows the Office of 
Administrative Law Judges to update its notices of appeal rights so 
that by the time e-filing with the Board is mandatory, parties will 
have received a notice of appeal rights with updated information. It 
also allows parties who were previously filing and serving documents by 
mail to adjust to electronic filing. As discussed above, mandating 
electronic filing and automatically serving documents electronically 
filed through the system will benefit the parties and improve case 
processing. The regulation requires that e-filed documents be in PDF 
format and expresses a preference for text-searchable PDF format. To 
simplify the filing process, the regulation also informs filers that no 
paper copies need be filed unless requested by the Board; electronic 
submission alone is sufficient. Paragraph (d)(2) permits attorneys and 
lay representatives to request, by motion, an exemption from mandatory 
e-filing or acceptance of automatic e-service for good cause shown.
    Proposed paragraph (d)(3) allows self-represented (i.e., pro se) 
parties to file in either electronic or nonelectronic format. Providing 
this flexibility will allow these parties to easily participate in 
their cases. To remove any confusion about whether an electronically 
filed document is a ``paper,'' paragraph (d)(4) specifically provides 
that such documents are written papers for purposes of all of the 
Board's procedural rules. Proposed paragraph (d)(5) addresses technical 
failures in two ways. First, any person encountering technical 
difficulties in filing or receiving electronic documents through the 
case management system may file a motion with the Board requesting 
relief appropriate to the particular incident. The Board encourages 
filers to retain documentation of the failure in these instances. 
Second, paragraph (d)(5) provides that the Board may issue a special 
order providing relief (e.g., allowing nonelectronic filings) when the 
case management system is not operational.
    Proposed paragraph (e) contains special rules on filing notices of 
appeal. Paragraph (e)(1) incorporates the general rule contained in 
current Sec.  802.207(a)(1) on the filing date of a notice of appeal. 
Paragraph (e)(2) generally incorporates the provision in current Sec.  
802.207(a)(2) that the Board may consider an appeal submitted to 
another governmental unit to have been filed with the Clerk of the 
Board as of the date it was received by the other governmental unit. 
Paragraph (e)(2) does not specifically require that the other 
governmental unit promptly forward the notice of appeal to the office 
of the Clerk of the Board because the Board does not have such 
authority. Paragraph (e)(3) incorporates the provisions in current 
Sec.  802.207(b) that permit the Board to use the date of mailing as 
the filing date for the notice of appeal if appeal rights would 
otherwise be lost. Paragraph (e)(3) extends this same protection to 
notices of appeal sent by commercial carrier (e.g., FedEx, UPS) and 
provides that the filing date in these instances is the date of 
delivery to the commercial carrier. Given the widespread use of 
commercial carriers, this additional provision will help ensure that 
parties' appeal rights are not lost. Finally, paragraph (e)(4) 
clarifies that electronic notices of appeal filed through the case 
management system are considered received, and thus filed, as of the 
date and time recorded by the system.

Sec. 802.223 Service Requirements

    Proposed Sec.  802.223 is a new rule containing all service 
requirements. Paragraph (a) requires, akin to current Sec.  802.216(c), 
parties to serve every party in the case and the Solicitor of Labor 
with a copy of all documents filed with the Board. Paragraph (b) 
identifies the types of nonelectronic service (personal delivery; mail 
or commercial delivery) and electronic service (electronic mail, if 
consented to in writing by the person served, and electronic service to 
a registered user through the case management system) permitted. 
Significantly, paragraph (b)(2)(B) provides that a registered 
electronic case management system user ``is deemed to have consented to 
accept service through the system.'' Thus, automatic service through 
the electronic case management system is effective with respect to 
registered system users without any additional form of service. 
Paragraph (c) describes when service is effected for different delivery 
methods, which could become important to a cross-appeal filing under 
Sec.  802.205(b).
    Finally, paragraph (d) governs the date of receipt for electronic 
documents served by the case management system or electronic mail. The 
receipt date is particularly important to determining deadlines for 
response briefs, responses to motions, and requests for oral argument. 
See Sec. Sec.  802.212, 802.219, 802.305. Under paragraph (d)(1), 
electronic case management system-served documents are considered 
received by the system's registered users in the case on the date the 
document is sent by the system. Similarly, under paragraph (d)(2) 
documents served via electronic mail are considered received when sent. 
In both instances, the recipients of service will have rapid access to 
the filed pleading, exhibit, or other document.

IV. Administrative Requirements of the Proposed Rulemaking

Executive Orders 12866, Regulatory Planning and Review; and 13563, 
Improving Regulation and Regulatory Review

    Executive Orders 12866 and 13563 direct agencies to assess the 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of

[[Page 1861]]

reducing costs, of harmonizing rules, and of promoting flexibility.
    This proposed rule has been drafted and reviewed in accordance with 
Executive Order 12866. The Office of Information and Regulatory Affairs 
of the Office of Management and Budget (OMB) determined that this 
direct final rule is not a significant regulatory action under section 
3(f) of Executive Order 12866 because the proposed rule will not have 
an annual effect on the economy of $100 million or more; will not 
create a serious inconsistency or otherwise interfere with an action 
taken or planned by another agency; and will not materially alter the 
budgetary impact of entitlements, grants, user fees, or loan programs 
or the rights and obligations of recipients thereof. Furthermore, the 
proposed rule does not raise a novel legal or policy issue arising out 
of legal mandates, the President's priorities, or the principles set 
forth in the Executive Order. Accordingly, OMB has waived review.

Regulatory Flexibility Act of 1980

    Because no notice of proposed rulemaking is required for this rule 
under section 553(b) of the Administrative Procedure Act, the 
regulatory flexibility requirements of the Regulatory Flexibility Act, 
5 U.S.C. 601, do not apply to this rule. See 5 U.S.C. 601(2).

Paperwork Reduction Act

    The Department has determined that this proposed rule is not 
subject to the requirements of the Paperwork Reduction Act, 44 U.S.C. 
3501 et seq., as this rulemaking involves administrative actions to 
which the Federal government is a party or that occur after an 
administrative case file has been opened regarding a particular 
individual. See 5 CFR 1320.4(a)(2), (c).

Unfunded Mandates Reform Act of 1995 and Executive Order 13132, 
Federalism

    The Department has reviewed this proposed rule in accordance with 
the requirements of Executive Order 13132 and the Unfunded Mandates 
Reform Act of 1995, 2 U.S.C. 1501 et seq., and has found no potential 
or substantial direct effects on the states, on the relationship 
between the national government and the states, or on the distribution 
of power and responsibilities among the various levels of government. 
As there is no Federal mandate contained herein that could result in 
increased expenditures by state, local, and tribal governments, or by 
the private sector, the Department has not prepared a budgetary impact 
statement.

Executive Order 13175, Consultation and Coordination With Indian Tribal 
Governments

    The Department has reviewed this proposed rule in accordance with 
Executive Order 13175 and has determined that it does not have ``tribal 
implications.'' The proposed rule does not ``have substantial direct 
effects on one or more Indian tribes, on the relationship between the 
Federal government and Indian tribes, or on the distribution of power 
and responsibilities between the Federal government and Indian 
tribes.''

List of Subjects in 20 CFR Part 802

    Administrative practice and procedure, Black lung benefits, 
Longshore and harbor workers, Workers' compensation.

    For the reasons set forth in the preamble, the Department of Labor 
proposes to amend 20 CFR part 802 as follows:

PART 802--RULES OF PRACTICE AND PROCEDURE

0
1. The authority citation for part 802 continues to read as follows:

    Authority: 5 U.S.C. 301; 30 U.S.C. 901 et seq.; 33 U.S.C. 901 et 
seq.; Reorganization Plan No. 6 of 1950, 15 FR 3174; Secretary of 
Labor's Order 03-2006, 71 FR 4219, January 25, 2006.


Sec.  802.204  [Removed and Reserved]

0
2. Remove and reserve Sec.  802.204.


Sec.  802.207  [Removed and Reserved]

0
3. Remove and reserve Sec.  802.207.


Sec.  802.216  [Removed and Reserved]

0
4. Remove and reserve Sec.  802.216.
0
5. In Sec.  802.219, revise paragraph (d) to read as follows:


Sec.  802.219  Motions to the Board; orders

* * * * *
    (d) The rules governing the filing and service of documents in 
Sec. Sec.  802.222 and 802.223 apply to all motions.
* * * * *
0
6. Revise Sec.  802.221 to read as follows:


Sec.  802.221  Computation of time.

    (a) In computing any period of time prescribed or allowed by these 
rules, by direction of the Board, or by any applicable statute which 
does not provide otherwise, the day from which the designated period of 
time begins to run must not be included. The last day of the period so 
computed must be included, unless it is a Saturday, Sunday, or legal 
holiday, in which event the period runs until the end of the next day 
which is not a Saturday, Sunday, or legal holiday.
    (b) For nonelectronic documents, the time period computed under 
paragraph (a) of this section will be deemed complied with if--
    (1) When sent by mail, the envelope containing the document is 
postmarked by the U.S. Postal Service within the time period allowed. 
If there is no such postmark, or it is not legible, other evidence such 
as, but not limited to, certified mail receipts, certificates of 
service, and affidavits, may be used to establish the mailing date.
    (2) When sent by commercial carrier, the receipt or tracking 
information demonstrates that the paper was delivered to the carrier 
within the time period allowed.
    (c) For electronic filings made through the Board's case management 
system, paragraph (a) of this section will be deemed to be met if the 
document is electronically filed within the time period allowed. A 
document is deemed filed as of the date and time the Board's electronic 
case management system records its receipt, even if transmitted outside 
of the Board's business hours set forth in Sec.  801.304 of this 
chapter. To be considered timely, an e-filed pleading must be filed by 
11:59:59 p.m. Eastern Time on the due date.
    (d) A waiver of the time limitations for filing a paper, other than 
a notice of appeal, may be requested by proper motion filed in 
accordance with Sec. Sec.  802.217 and 802.219.
0
7. Add Sec.  802.222 to subpart B to read as follows:


Sec.  802.222  Filing notice of appeal, pleadings, and other 
correspondence.

    This section prescribes rules and procedures by which parties and 
representatives to proceedings before the Board file pleadings 
(including notices of appeal, petitions for review and briefs, response 
briefs, additional briefs, and motions), exhibits, and other documents 
including routine correspondence.
    (a) Requirements for all pleadings. All pleadings filed with the 
Board must--
    (1) Include a caption and title.
    (2) Include a certificate of service containing--
    (i) The date and manner of service;
    (ii) The names of persons served; and
    (iii) Their mail or electronic mail addresses or the addresses of 
the places of delivery, as appropriate for the manner of service.
    (3) Include a signature of the party (or his or her attorney or lay 
representative) and date of signature. Pleadings filed by an attorney, 
lay representative or self-represented party via the Board's case 
management system will be deemed to be signed by that person.

[[Page 1862]]

    (4) Conform to standard letter dimensions (8.5 x 11 inches).
    (b) Redacted filings and exhibits. Any person who files a pleading, 
exhibit, or other document that contains an individual's social 
security number, taxpayer-identification number, or birth date; the 
name of an individual known to be a minor; or a financial-account 
number, must redact all such information, except the last four digits 
of the social security number and taxpayer-identification number; the 
year of the individual's birth; the minor's initials; and the last four 
digits of the financial-account number.
    (c) Nonelectronic filings. All nonelectronic pleadings filed with 
the Board must be secured at the top. For each pleading filed with the 
Board, the original and two legible copies must be submitted. 
Nonelectronic filings must be sent to the U.S. Department of Labor, 
Benefits Review Board, ATTN: Office of the Clerk of the Appellate 
Boards (OCAB), 200 Constitution Ave. NW, Washington, DC 20210-0001, or 
otherwise presented to the Clerk.
    (d) Electronic filings. (1) Except as provided in paragraph (d)(2) 
of this section, beginning on [DATE 45 DAYS AFTER EFFECTIVE DATE OF 
FINAL RULE], attorneys and lay representatives must register for the 
Board's electronic case management system and file all pleadings, 
exhibits, and other documents with the Board through this system (e-
file). All e-filed documents must be in Portable Document Format (PDF). 
The Board prefers that pleadings be filed in text-searchable PDF 
format. Paper copies are not required unless requested by the Board.
    (2) Attorneys and lay representatives may request an exemption 
(pursuant to Sec.  802.219) for good cause shown. Such a request must 
include a detailed explanation why e-filing or acceptance of e-service 
should not be required.
    (3) Self-represented parties may file pleadings, exhibits, and 
other documents in electronic or nonelectronic form in accordance with 
paragraph (c) or (d) of this section.
    (4) A document filed electronically is a written paper for purposes 
of this Part.
    (5) A person who is adversely affected by a technical failure in 
connection with filing or receipt of an electronic document may seek 
appropriate relief from the Board under Sec.  802.219. If a technical 
malfunction or other issue prevents access to the Board's case 
management system for a protracted period, the Board by special order 
may provide appropriate relief pending restoration of electronic 
access.
    (e) Special rules for notices of appeal. (1) Except as otherwise 
provided in this section, a notice of appeal is considered to have been 
filed only as of the date it is received by the office of the Clerk of 
the Board.
    (2) A notice of appeal submitted to any other agency or subdivision 
of the Department of Labor or of the U.S. Government or any state 
government, and subsequently received by the office of the Clerk of the 
Board, will be considered filed with the Clerk of the Board as of the 
date it was received by the other governmental unit if the Board finds 
in its discretion that it is in the interest of justice to do so.
    (3) If the notice of appeal is sent by mail or commercial carrier 
and the fixing of the date of delivery as the date of filing would 
result in a loss or impairment of appeal rights, it will be considered 
to have been filed as of the date of mailing or the date of delivery to 
the commercial carrier.
    (i) For notices sent by mail, the date appearing on the U.S. Postal 
Service postmark (when available and legible) will be prima facie 
evidence of the date of mailing. If there is no such postmark or it is 
not legible, other evidence such as, but not limited to, certified mail 
receipts, certificates of service, and affidavits, may be used to 
establish the mailing date.
    (ii) For notices sent by commercial carrier, the date of delivery 
to the carrier may be demonstrated by the carrier's receipt or tracking 
information.
    (4) If the notice of appeal is electronically filed through the 
Board's case management system, it is considered received by the office 
of the Clerk of the Board as of the date and time recorded by the 
system under Sec.  802.221(c).
0
6. Add Sec.  802.223 to subpart B to read as follows:


Sec.  802.223   Service requirements

    This section prescribes rules and procedures for serving pleadings 
(including notices of appeal, petitions for review, and response 
briefs, additional briefs, and motions), exhibits, and other documents 
including routine correspondence on other parties and representatives.
    (a) A copy of any document filed with the Board must be served on 
each party and the Solicitor of Labor by the party filing the document.
    (b) Manner of service. (1) Nonelectronic service may be completed 
by:
    (i) Personal delivery;
    (ii) Mail; or
    (iii) Commercial delivery.
    (2) Electronic service may be completed by:
    (i) Electronic mail, if consented to in writing by the person 
served; or
    (ii) Sending it to a user registered with the Board's electronic 
case management system by filing via this system. A person who 
registers to use the Board's case management system is deemed to have 
consented to accept service through the system.
    (c) When service is effected. (1) Service by personal delivery is 
effected on the date the document is delivered to the recipient.
    (2) Service by mail or commercial carrier is effected on mailing or 
delivery to the carrier.
    (3) Service by electronic means is effected on sending.
    (d) Date of receipt for electronic documents. Unless the party 
making service is notified that the document was not received by the 
party served--
    (1) A document filed via the Board's case management system is 
considered received by registered users on the date it is sent by the 
system; and
    (2) A document served via electronic mail is considered received by 
the recipient on the date it is sent.

    Signed on this 14th day of December, 2020, in Washington, DC
Eugene Scalia,
Secretary of Labor.
[FR Doc. 2020-28058 Filed 1-8-21; 8:45 am]
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