Procedural Rules and Regulations, 43695-43697 [2017-19783]

Agencies

• National Labor Relations Board

[Federal Register Volume 82, Number 180 (Tuesday, September 19, 2017)]
[Rules and Regulations]
[Pages 43695-43697]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-19783]


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NATIONAL LABOR RELATIONS BOARD

29 CFR Part 102

RIN 3142-AA10


Procedural Rules and Regulations

AGENCY: National Labor Relations Board.

ACTION: Final rule.

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SUMMARY: The National Labor Relations Board amends its procedural rules 
and regulations to include testimony transmitted by videoconference, 
and amicus brief filings.

DATES: This rule is effective on September 29, 2017.

FOR FURTHER INFORMATION CONTACT: Gary Shinners, Executive Secretary, 
National Labor Relations Board, 1015 Half Street SE., Washington, DC 
20570, (202) 273-3737 (this is not a toll-free number), 1-866-315-6572 
(TTY/TDD).

SUPPLEMENTARY INFORMATION: 

Background on the Rulemaking

    The changes are summarized below:

I. Video Conferencing Testimony

    The Board added language covering procedures applicable to 
deposition testimony contemporaneously transmitted by videoconference. 
The procedures cover the filing of applications to take depositions by 
videoconference, the safeguards required for the taking of 
videoconference testimony, the timing, method, and bases for filing 
objections to the admissibility of videoconference testimony, 
transcription of videoconference testimony, and the payment of witness 
and court reporter fees associated with the taking of videoconference 
testimony.

II. Amicus Curiae Brief Filings

    The Board added language setting forth the procedures covering 
procedures applicable to amicus curiae briefs. The procedures cover the 
circumstances when motions for permission to file an amicus brief may 
be filed, the contents of such motions, replies to motions, page length 
of amicus briefs, parties' answering briefs to amicus briefs, and the 
solicitation of amicus briefs by the Board.

Regulatory Flexibility Act Certification

    Pursuant to Section 605(b) of the Regulatory Flexibility Act, 5 
U.S.C. 605(b), the Agency has determined that these rule amendments 
will not have a significant impact on a substantial number of small 
entities.

Unfunded Mandates Reform Act of 1995

    These rule amendments will not result in the expenditure by state, 
local, and tribal governments, in the aggregate, or by the private 
sector, of $100,000,000 or more in any one year, and it will not 
significantly or uniquely affect small governments. Therefore, no 
actions are deemed necessary under the provisions of the Unfunded 
Mandates Reform Act of 1995.

Small Business Regulatory Enforcement Fairness Act of 1996

    This action is not a major rule as defined by Section 804 of the 
Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 
804. These amendments will not result in an annual effect on the 
economy of $100,000,000 or more or a major increase in costs or prices, 
nor will these amendments have significant adverse effects on 
competition, employment, investment, productivity, innovation, or on 
the ability of United States-based companies to compete with foreign-
based companies in domestic and export markets.

Paperwork Reduction

    The amended regulations contain no additional information-
collection or record-keeping requirements under the Paperwork Reduction 
Act of 1995, 44 U.S.C. 3501, et seq.

Public Participation

    This rule is published as a final rule. The National Labor 
Relations Board considers this rule to be a procedural rule which is 
exempt from notice and public comment, pursuant to 5 U.S.C. 
553(b)(3)(A), as a rule of ``agency organization, procedure, or 
practice.'' If you wish to contact the Agency, please do so at the 
above listed address. However, before including your address, phone 
number, email address, or other personal identifying information in 
your comment, you should be aware that your entire comment--including 
your personal identifying information--may be made publicly available 
at any time. While you can ask us in your comment to withhold your 
personal identifying information from public review, we cannot 
guarantee that we will be able to do so.

List of Subjects in 29 CFR Part 102

    Administrative practice and procedure, Labor management relations.

Gary Shinners,
Executive Secretary.

    For the reasons stated in the preamble, the National Labor 
Relations Board amends 29 CFR part 102 as follows:

PART 102--RULES AND REGULATIONS, SERIES 8

0
1. The authority citation for part 102 continues to read as follows:

    Authority:  Sections 1, 6, National Labor Relations Act (29 
U.S.C. 151, 156). Section 102.117 also issued under section 
552(a)(4)(A) of the Freedom of Information Act, as amended (5 U.S.C. 
552(a)(4)(A)), and Section 102.117a also issued under section 
552a(j) and (k) of the Privacy Act of 1974 (5 U.S.C. 552a(j) and 
(k)). Sections 102.143 through 102.155 also issued under section 
504(c)(1) of the Equal Access to Justice Act, as amended (5 U.S.C. 
504(c)(1)).


[[Page 43696]]



0
2. Amend Sec.  102.30 by revising paragraphs (a) and (c) through (e) 
and adding paragraph (g) to read as follows:


Sec.  102.30   Depositions, examination of witnesses.

* * * * *
    (a) Applications to take depositions, including deposition 
testimony contemporaneously transmitted by videoconference, must be in 
writing and set forth the reasons why the depositions may be taken, the 
name, mailing address and email address (if available) of the witness, 
the matters concerning which it is expected the witness will testify, 
and the time and place proposed for taking the deposition, together 
with the name and mailing and email addresses of the person before whom 
it is desired that the deposition be taken (for the purposes of this 
section hereinafter referred to as the ``officer''). Such application 
must be made to the Regional Director prior to the hearing, and to the 
Administrative Law Judge during and subsequent to the hearing but 
before transfer of the case to the Board pursuant to Sec.  102.45 or 
Sec.  102.50. Such application must be served on the Regional Director 
or the Administrative Law Judge, as the case may be, and on all other 
parties, not less than 7 days (when the deposition is to be taken 
within the continental United States) and 15 days (if the deposition is 
to be taken elsewhere) prior to the time when it is desired that the 
deposition be taken. The Regional Director or the Administrative Law 
Judge, as the case may be, will upon receipt of the application, if in 
the Regional Director's or Administrative Law Judge's discretion, good 
cause has been shown, make and serve on the parties an order specifying 
the name of the witness whose deposition is to be taken and the time, 
place, and designation of the officer before whom the witness is to 
testify, who may or may not be the same officer as that specified in 
the application. Such order will be served on all the other parties by 
the Regional Director or on all parties by the Administrative Law 
Judge.
* * * * *
    (c) At the time and place specified in the order, the officer 
designated to take the deposition will permit the witness to be 
examined and cross-examined under oath by all the parties appearing in 
person or by contemporaneous transmission through videoconference, and 
testimony shall be transcribed by the officer or under the officer's 
direction. All objections to questions or evidence will be deemed 
waived unless made at the examination. The officer will not have power 
to rule upon any objections but the objections will be noted in the 
deposition. The testimony must be subscribed by the witness to the 
satisfaction of the officer who will attach a certificate stating that 
the witness was duly sworn by the officer, that the deposition is a 
true record of the testimony and exhibits given by the witness, and 
that the officer is not of counsel or attorney to any of the parties 
nor interested in the event of the proceeding or investigation. If the 
deposition is not signed by the witness because the witness is ill, 
dead, cannot be found, or refuses to sign it, such fact will be 
included in the certificate of the officer and the deposition may then 
be used as fully as though signed. The officer will immediately deliver 
the transcript, together with the certificate, in person, by registered 
or certified mail, or by E-File to the Regional Director or Division of 
Judges' office handling the matter.
    (d) The Administrative Law Judge will rule upon the admissibility 
of the deposition or any part of the deposition. A party may object to 
the admissibility of deposition testimony by videoconference on grounds 
that the taking of the deposition did not comply with appropriate 
safeguards as set forth in Sec.  102.35(c), provided that the party 
opposing the admission of the deposition raised deficiencies in 
safeguards at the time of the deposition when corrections might have 
been made.
    (e) All errors or irregularities in compliance with the provisions 
of this section will be deemed waived unless a motion to suppress the 
deposition in whole or part is made with reasonable promptness after 
such defect is or, with due diligence, might have been ascertained.
* * * * *
    (g) The official record of the deposition testimony will be the 
official transcript prepared by the officer designated to transcribe 
the deposition testimony.

0
3. Revise Sec.  102.32 to read as follows:


Sec.  102.32   Payment of witness fees and mileage; fees of officer who 
transcribes deposition or video testimony.

    Witnesses summoned before the Administrative Law Judge must be paid 
the same fees and mileage that are paid witnesses in the courts of the 
United States, and witnesses whose depositions are taken or who testify 
by videoconference and the officer who transcribes the testimony shall 
severally be entitled to the same fees as are paid for like services in 
the courts of the United States, and those fees shall be paid by the 
party at whose instance the deposition is taken.

0
4. Amend Sec.  102.35 by adding paragraph (c) to read as follows:


Sec.  102.35   Duties and powers of Administrative Law Judges; 
stipulations of cases to Administrative Law Judges or to the Board; 
assignment and powers of settlement judges; video testimony.

* * * * *
    (c) Upon a showing of good cause based on compelling circumstances, 
and under appropriate safeguards, the taking of video testimony by 
contemporaneous transmission from a different location may be 
permitted.
    (1) Applications to obtain testimony by videoconference must be 
presented to the Administrative Law Judge in writing, and the 
requesting party must simultaneously serve notice of the application 
upon all parties to the hearing. The application must set forth the 
compelling circumstances for such testimony, the witness's name and 
address, the location where the video testimony will be held, the 
matter concerning which the witness is expected to testify, the 
conditions in place to protect the integrity of the testimony, the 
transmission safeguards, and the electronic address from which the 
video testimony will be transmitted. Such application and any 
opposition must be made promptly and within such time as not to delay 
the proceeding.
    (2) Appropriate safeguards must ensure that the Administrative Law 
Judge has the ability to assess the witness's credibility and that the 
parties have a meaningful opportunity to examine and cross-examine the 
witness, and must include at a minimum measures that ensure that 
representatives of the parties have the opportunity to be present at 
the remote location, the judge, participants, and the reporter are able 
to hear the testimony and observe the witness, the camera view is 
adjustable to provide a close-up view of counsel and the witness and a 
panoramic view of the room, exhibits used in the witness's examination 
are exchanged in advance of the examination, and video technology 
assistance is available to assist with technical difficulties that 
arise during the examination. The Administrative Law Judge may also 
impose additional safeguards.
    (3) The official record of the videoconference testimony will be 
the official transcript prepared by the officer designated to 
transcribe the testimony.

0
5. Amend Sec.  102.46 by revising the section heading and adding 
paragraph (i) to read as follows:

[[Page 43697]]

Sec.  102.46   Exceptions and brief in support; answering briefs to 
exceptions; cross-exceptions and brief in support; answering briefs to 
cross-exceptions; reply briefs; failure to except; oral argument; 
filing requirements; amicus curiae briefs.

* * * * *
    (i) Amicus curiae briefs. Amicus curiae briefs will be accepted 
only by permission of the Board. Motions for permission to file an 
amicus brief must state the bases of the movant's interest in the case 
and why the brief will be of benefit to the Board in deciding the 
matters at issue. Unless the Board directs otherwise, the following 
procedures will apply.
    (1) The Board will consider motions to file an amicus brief only 
when: (a) A party files exceptions to an Administrative Law Judge's 
decision; or (b) a case is remanded by the court of appeals and the 
Board requests briefing from the parties.
    (2) In circumstances where a party files exceptions to an 
Administrative Law Judge's decision, the motion must be filed with the 
Office of the Executive Secretary of the Board no later than 42 days 
after the filing of exceptions, or in the event cross-exceptions are 
filed, no later than 42 days after the filing of cross-exceptions. 
Where a case has been remanded by the court of appeals, the motion must 
be filed no later than 21 days after the parties file statements of 
position on remand. A motion filed outside these time periods must be 
supported by a showing of good cause. The motion will not operate to 
stay the issuance of a Board decision upon completion of the briefing 
schedule for the parties.
    (3) The motion must be accompanied by the proposed amicus brief and 
must comply with the service and form prescribed by Sec.  102.5. The 
brief may be no more than 25 pages in length.
    (4) A party may file a reply to the motion within 7 days of service 
of the motion. A party may file an answering brief to the amicus brief 
within 14 days of issuance of the Board's order granting permission to 
file the amicus brief. Replies to an answering brief will not be 
permitted.
    (5) The Board may direct the Executive Secretary to solicit amicus 
briefs. In such cases, the Executive Secretary will specify in the 
invitation the due date and page length for solicited amicus briefs, 
and the deadline for the parties to file answering briefs. Absent 
compelling reasons, no extensions of time will be granted for filing 
solicited amicus briefs or answering briefs.

[FR Doc. 2017-19783 Filed 9-18-17; 8:45 am]
 BILLING CODE 7545-01-P