Rules of Practice and Procedure, 1831-1834 [2020-28048]

Agencies

• DEPARTMENT OF LABOR
• Employees' Compensation Appeals Board

[Federal Register Volume 86, Number 6 (Monday, January 11, 2021)]
[Proposed Rules]
[Pages 1831-1834]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-28048]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF LABOR

Employees' Compensation Appeals Board

20 CFR Part 501

RIN 1290-AA37


Rules of Practice and Procedure

AGENCY: Employees' Compensation Appeals Board, Department of Labor.

ACTION: Notice of proposed rulemaking; request for comments.

-----------------------------------------------------------------------

SUMMARY: The Department of Labor (DOL or Department) is issuing this 
Notice of Proposed Rulemaking (NPRM) to seek public comments on a 
proposal to require electronic filing (e-filing) and electronic service 
(e-service) for attorneys and lay representatives representing parties 
in proceedings before the Employees' Compensation Appeals Board (ECAB 
or the Board). These proposed regulations would establish e-filing and 
e-service rules of practice and procedure for the Board that would 
apply where a governing statute, regulation, or executive order does 
not establish contrary rules of practice or procedure. The rule would 
mandate e-filing, makes e-service automatic of documents for parties 
represented by attorneys and duly authorized lay representatives, and 
provides an option for pro se/self-represented parties to utilize these 
capabilities. It would also allow the Board, in its discretion, to hold 
oral arguments by videoconference.

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

ADDRESSES: You may send comments, identified by Regulatory 
Identification Number (RIN) 1290-AA37, only by the following method: 
Electronic Comments. Submit comments through the Federal eRulemaking 
Portal https://www.regulations.gov. To locate the proposed rule, use 
docket number DOL-2020-0017 or key words such as ``Administrative 
practice and procedure'' or ``Workers' compensation.'' Follow the 
instructions for submitting comments. All comments must be received by 
11:59 p.m. on the date indicated for consideration in this rulemaking.
    Instructions: All submissions received must include the agency name 
and docket number or Regulatory Information Number (RIN) for this 
rulemaking. All comments received will generally be posted without 
change to https://www.regulations.gov, including any personal 
information provided. If you need assistance to review the comments or 
the proposed rule, the Department will consider providing the comments 
and the proposed rule in other formats upon request. For assistance to 
review the comments or obtain the proposed rule in an alternate format, 
contact Mr. Thomas Shepherd, Clerk of the Appellate Boards, at (202) 
693-6319. Individuals with hearing or speech impairments may access the 
telephone number above by TTY by calling the toll-free Federal 
Information Relay Service at (800) 877-8339.

FOR FURTHER INFORMATION CONTACT: Thomas Shepherd, Clerk of the 
Appellate Boards, at 202-693-6319 or [email protected].

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

I. Proposed Rule Published Concurrently With Companion Direct Final 
Rule

    The Department is simultaneously publishing with this proposed rule 
an identical ``direct final'' rule elsewhere in this issue of the 
Federal Register. In direct final rulemaking, an agency publishes a 
final rule with a statement that the rule will go into effect unless 
the agency receives significant adverse comment within a specified 
period. If the agency receives no significant adverse comment in 
response to the direct final rule, the rule goes into effect. If the 
agency receives significant adverse comment, the agency withdraws the 
direct final rule and treats such comment as submissions on the 
proposed rule. The proposed rule then provides the procedural framework 
to finalize the rule. An agency typically uses direct final rulemaking 
when it anticipates the rule will be non-controversial.
    The Department has determined that this rule is suitable for direct 
final rulemaking. The proposed revisions to the Board's procedural 
regulations would require representatives to use the Board's electronic 
system for filing and serving documents unless exempted by the Board 
for good cause. Some represented parties are already filing documents 
through the Board's existing electronic system on a voluntary basis. 
Moreover, this system is similar to those used by courts and other 
administrative agency electronic systems and will thus be familiar to 
the representatives. The proposed rule would also give self-represented 
(pro se) appellants the option to file and serve documents through the 
electronic system or via conventional methods. It would also allow the 
Board to hear oral argument by videoconference under the same 
discretionary criteria outlined in its 2008 proposal. These changes to 
the Board's procedures and practices are not expected to be 
controversial and are consistent with its statements in its 2008 
proposal. 73 FR 35103 (``[T]he Board has anticipated that technological 
advances may, in the future, allow the filing, notice, service and 
presentation of documents and argument by electronic means.'').
    The comment period for this proposed rule runs concurrently with 
the comment period for the direct final rule. Any comments received in 
response to this proposed rule will also be considered as comments 
regarding the direct final rule and vice versa. For purposes of this 
rulemaking, a significant adverse comment is one that explains (1) why 
the rule is inappropriate, including challenges to the rule's 
underlying premise or approach; or (2) why the direct final rule will 
be ineffective or unacceptable without a change. In determining whether 
a significant adverse comment necessitates withdrawal of this direct 
final rule, the Department will consider whether the comment raises an 
issue serious enough to warrant a substantive response had it been 
submitted in a standard notice-and-comment process. A comment 
recommending an addition to the rule will not be considered significant 
and adverse unless the comment explains how this direct final rule 
would be ineffective without the addition.
    The Department requests comments on all issues related to this 
rule, including economic or other regulatory

[[Page 1832]]

impacts of this rule on the regulated community. All interested parties 
should comment at this time because the Department will not initiate an 
additional comment period on the proposed rule even if it withdraws the 
direct final rule.
    This rule is not an E.O. 13771 regulatory action because this rule 
has been determined by the Office of Information and Regulatory Affairs 
as not significant under E.O. 12866.
    Pursuant to the Congressional Review Act (F U.S.C. 801 et seq.), 
the Office of Information and Regulatory Affairs designated this rule 
as not a `major rule,' as defined by 5 U.S.C. 804(3).

II. Background of This Rulemaking

    The Board is proposing a rule that would make e-filing and e-
service mandatory for parties represented by attorneys and lay 
representatives. The Board's long-term goal is to have entirely 
electronic case files (e-case files), which would significantly benefit 
both the Board and the participants in Board appeals. All parties and 
representatives, as well as appropriate Board employees, would have 
access to all of the Board's case-related documents through the Board's 
case management system at any time and place, as long as they have 
access to the internet. In addition, digitally filed and served 
documents would allow the Board to leverage its case management system 
to more efficiently process incoming documents and reduce the time it 
takes to adjudicate appeals.
    The Board's case management system is a consolidated web-based case 
tracking system that was deployed in FY2011 to replace individual 
legacy applications and streamline business processes specific to each 
of the Department's three Adjudicatory Boards: the Administrative 
Review Board (created in 1996) is the adjudicatory Board that issues 
final agency decisions for the Secretary of Labor in cases arising 
under a variety of worker protection laws; the Benefits Review Board 
(created in 1972) reviews appeals of administrative law judges' 
decisions arising primarily under the Black Lung Benefits Act, the 
Longshore and Harbor Workers' Compensation Act and its extensions; and 
the Employees' Compensation Appeals Board (ECAB) (created in 1946) 
hears appeals taken from determinations and awards under the Federal 
Employees' Compensation Act by the Department's Office of Workers' 
Compensation Programs (OWCP) (whose predecessor agency was the Bureau 
of Federal Employees' Compensation as described in 20 CFR 1.6) with 
respect to claims of Federal employees injured in performance of duty.
    The case management system has provided a broad range of 
capabilities to the staff of the Boards for inputting, processing, 
tracking, managing, and reporting specific details on thousands of 
cases since the initial implementation. In FY 2013, the system was 
enhanced to provide access to the general public. Specifically, users 
have the ability to check their case status, electronically file 
motions and briefs, and receive Board issuances electronically. 
Currently, more than 1,400 individuals are registered users of the 
system.
    At present, there are two methods for placing the parties' 
pleadings into an electronic format for inclusion on the Board's case 
management system: pleadings can be filed in an electronic format; or 
pleadings can be digitally imaged after they have been filed in paper 
form. If e-filing and e-service remains optional, it is unlikely that 
the Board will achieve the goal of completely electronic case files. 
If, however, all pleadings submitted by attorneys and lay 
representatives are e-filed, imaging the remaining paper pleadings from 
self-represented parties (pro se parties) would be more manageable and 
allow greater efficiencies in the processing of appeals. In addition, 
utilization of e-filing and e-service will reduce case processing times 
by eliminating, in most cases, the timeframes required to allow for the 
delivery of traditional mailings. These time savings will allow the 
Board to more efficiently process appeals without any sacrifice of the 
quality of work and will reduce mailing costs for the Board and private 
parties.
    Although the law requires Federal agencies to provide information 
and services via the internet, it also mandates that agencies consider 
the impact on persons without access to the internet and, to the extent 
practicable, ensure that the availability of government services has 
not been diminished for such persons. 44 U.S.C. 3501. Accordingly, the 
Board will make e-filing and e-service optional for self-represented 
parties. There is no known legal restriction to a requirement that 
attorneys and lay representatives use e-filing and make e-service 
automatic, nor are there undue costs or difficulties imposed, 
particularly because a party may obtain an exemption for good cause 
shown. The Board notes that in this regard, e-filing is generally 
mandatory for attorneys in the Federal court system. See 76 FR 56107 
(Sept. 12, 2011) (Social Security Administration final rule announcing 
that it will require claimant representatives to use SSA's electronic 
services as they become available on matters for which the 
representatives request direct fee payment); 76 FR 63537 (Oct. 13, 
2011) (U.S. Merit Systems Protection Board pilot program requiring 
agencies and attorneys representing appellants to file pleadings 
electronically for appeals in the Washington Regional Office and Denver 
Field Office); 84 FR 14554 (Apr. 10, 2019) (Occupational Safety and 
Health Review Commission final rule adopting mandatory electronic 
filing and service); 84 FR 37081 (July 31, 2019) (U.S. Patent and 
Trademark Office final rule amending its Rules of Practice in Trademark 
Cases and Rules of Practice in Filings to mandate electronic filing of 
trademark applications and submissions associated with trademark 
applications and registrations). Individuals who are e-filing appeals 
to the Board need access to a computer with internet connectivity and 
an email account.

III. Section-by Section Analysis of Proposed Rule

Title 20

Part 501 Rules of Procedure
Section 501.3 Notice of Appeal
    Current Sec.  501.3(a) defines who may ``file for review'' from a 
final decision of the Director. Proposed Sec.  501.3(a) would change 
the phrase ``file for review'' to ``file an appeal'' to reflect the 
terminology contained in this section.
    Current Sec.  501.3(b) defines the ``place of filing'' as with the 
Clerk of the Appellate Boards at a specific mailing address. Proposed 
Sec.  501.3(b) would define ``how to file'' appeals and all post-appeal 
pleadings and motions, requiring e-filing by attorneys and lay 
representatives beginning 45 days after the effective date of the rule 
and allowing for e-filing by self-represented appellants. This 
requirement applies only to those documents filed 45 days after the 
effective date or later. This time period between the effective date, 
when litigants can be certain that the direct final rule will not be 
withdrawn, and the applicability date, on which e-filing becomes 
mandatory, allows those who were previously filing and serving 
documents by mail to adjust to electronic filing.
    Current Sec.  501.3(c)(2) contains requirements for the content of 
an appeal to the Board regarding the name and contact information for 
an appellant or a deceased employee who is the subject of an appeal. In 
addition it requires a signed authorization identifying the name and 
contact

[[Page 1833]]

information of his or her representative, if applicable. Proposed Sec.  
501.3(c)(2) would require the identifying contact information to 
include an email address.
    Current Sec.  501.3(c)(6) requires an appellant to sign the notice 
of appeal. Proposed Sec.  501.3(c)(6) would allow for the use of an 
electronic signature when an appeal is electronically filed by a 
registered user.
    Current Sec.  501.3(f) sets forth how the date of filing an appeal 
is determined by the Board for purposes of timeliness of an appeal. 
Proposed Sec.  501.3(f) would change the word ``Clerk'' to ``Clerk of 
the Appellate Boards'' to reflect the terminology contained in this 
section.
    Current Sec.  501.3(f)(1) sets forth how timeliness of an appeal is 
determined and provides that a notice of appeal is deemed to be 
``received when received by the Clerk.'' Proposed Sec.  501.3(f)(1) 
would include a provision for the timeliness of an appeal when e-filed. 
It also contains technical amendments to change the terminology 
``United States Mail'' to ``United States Postal Service''; ``Clerk'' 
to ``Clerk of the Appellate Boards''; and ``received when received'' to 
``filed when received.'' Paragraph (f)(2) would be renumbered to 
(f)(3), and proposed new paragraph (f)(2) would clarify that e-filed 
documents are deemed filed as of the date and time the Board's 
electronic case management system records its receipt and must be filed 
by 11:59:59 p.m. Eastern Time on the due date.
    Current Sec.  501.3(h) describes when a notice of appeal will be 
considered incomplete. Proposed Sec.  501.3(h) would change the 
terminology from ``Clerk'' to ``Clerk of the Appellate Boards.''
Section 501.4 Case Record; Inspection; Submission of Pleadings and 
Motions
    Current Sec.  501.4(e) requires all filings with the Board to 
include an original and two copies. This proposal would remove that 
paragraph because paper copies are not necessary when e-filing, and the 
Board no longer needs multiple paper copies from self-represented 
parties or those who are granted an exemption from e-filing.
Section 501.5 Oral Argument
    Current Sec.  501.5 provides that oral argument is held only in 
Washington, DC. The proposal would allow the Board, in its discretion, 
to hold oral argument by videoconference. It also provides that the 
notice to the parties will specify whether the oral argument is to be 
held in person or by videoconference. This would provide the Board with 
greater flexibility and efficiency. Oral arguments (including those 
conducted by videoconference) will not be recorded because ECAB 
decisions are not subject to further review by OWCP or the courts.

IV. Administrative Requirements of the Proposed Rulemaking

Regulatory Flexibility Act of 1980

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

Paperwork Reduction Act (PRA)

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

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

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

Executive Order 13175, Consultation and Coordination With Indian Tribal 
Governments

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

Executive Order 13211, Energy Supply, Distribution, or Use

    The Department has reviewed this proposed rule and has determined 
that the provisions of Executive Order 13211 are not applicable as this 
is not a significant regulatory action and there are no direct or 
implied effects on energy supply, distribution, or use.

List of Subjects in 20 CFR Part 501

    Administrative practice and procedure; Claims; Government 
employees; Worker's compensation.

    For the reasons set forth in the preamble, the Department of Labor 
proposes to amend 20 CFR part 501 as follows:

PART 501 [AMENDED]

0
1. The authority citation for Part 501 continues to read as follows:

    Authority: Federal Employees' Compensation Act, 5 U.S.C. 8101, 
et seq.

0
2. Amend Sec.  501.3 by revising paragraphs (a), (b), (c)(2) and (6), 
(f), and (h) to read as follows:


Sec.  501.3  Notice of Appeal.

    (a) Who may file. Any person adversely affected by a final decision 
of the Director, or his or her authorized Representative, may file an 
appeal of such decision to the Board.
    (b) How to file. (1) Beginning on [DATE 45 DAYS AFTER EFFECTIVE 
DATE OF FINAL RULE], attorneys and lay representatives must file 
appeals with the Board electronically through the Board's case 
management system, along with all post-appeal pleadings and motions as 
set forth in paragraphs (d) and (h) of this section and Sec. Sec.  
501.4(b) through (d), 501.5(b) and (g); 501.7 (a), (e), and (f), and 
501.9(b), (c), and (e).
    (2) Attorneys and lay representatives may request an exemption 
(pursuant to Sec.  501.4(d)) for good cause shown. Such a request must 
include a detailed explanation why e-filing or acceptance of e-service 
should not be required.
    (3) Self-represented parties may either file appeals electronically 
through the Board's case management system or file appeals by mail or 
other method of delivery to the Clerk of the Appellate Boards at 200 
Constitution Avenue NW, Washington, DC 20210.
    (c) * * *
    (2) Full name, address, email address, and telephone number of the 
Appellant and the full name of any deceased employee on whose behalf an 
appeal is taken. In addition, the Appellant must provide a signed 
authorization identifying the full name, address, email address, and 
telephone number of his or her representative, if applicable.
* * * * *
    (6) Signature: An Appellant must sign the notice of appeal. A 
filing made electronically through the Board's case

[[Page 1834]]

management system by a registered user containing the Appellant's name 
in an appropriate signature block constitutes the Appellant's 
signature.
* * * * *
    (f) Date of filing. A notice of appeal complying with this 
paragraph (c) is considered to have been filed only if received by the 
Clerk of the Appellate Boards within the period specified under 
paragraph (e) of this section, except as otherwise provided in this 
subsection:
    (1) If the notice of appeal is sent via the U.S. Postal Service or 
commercial carrier and use of the date of delivery as the date of 
filing would result in a loss of appeal rights, the appeal will be 
considered to have been filed as of the date of the postmark or other 
carriers' date markings. The date appearing on the U.S. Postal Service 
postmark or other carriers' date markings (when available and legible) 
shall be prima facie evidence of the date of mailing. If there is no 
such postmark or date marking, or it is illegible, then other evidence 
including, but not limited to, certified mail receipts, certificate of 
service, and affidavits, may be used to establish the mailing date. If 
a notice of appeal is delivered or sent by means other than the U.S. 
Postal Service or commercial carrier, including e-filing, personal 
delivery, or fax, the notice is deemed to be filed when received by the 
Clerk of the Appellate Boards.
    (2) For electronic filings made through the Board's case management 
system, a document is deemed filed as of the date and time the Board's 
electronic case management system records its receipt, even if 
transmitted after the close of business. To be considered timely, an e-
filed document or pleading must be filed by 11:59:59 p.m. Eastern Time 
on the due date.
    (3) In computing the date of filing, the 180-day time period for 
filing an appeal begins to run on the day following the date of the 
OWCP decision. The last day of the period so computed shall be 
included, unless it is a Saturday, Sunday or Federal holiday, in which 
event the period runs to the close of the next business day.
* * * * *
    (h) Incomplete notice of appeal. Any timely notice of appeal that 
does not contain the information specified in paragraph (c) of this 
section will be considered incomplete. On receipt by the Board, the 
Clerk of the Appellate Boards will inform Appellant of the deficiencies 
in the notice of appeal and specify a reasonable time to submit the 
requisite information. Such appeal will be dismissed unless Appellant 
provides the requisite information in the specified time.


Sec.  501.4  [Amended]

0
3. Amend Sec.  501.4 by removing paragraph (e).
0
4. Amend Sec.  501.5 by revising paragraphs (c) and (f) to read as 
follows:


Sec.  501.5   Oral argument.

* * * * *
    (c) Notice of argument. If a request for oral argument is granted, 
the Clerk will notify the Appellant and the Director at least 30 days 
prior to the date set for argument. The notice of oral argument will 
state the issues that the Board has determined will be heard and 
whether the oral argument will take place in person in Washington, DC 
or by videoconference.
* * * * *
    (f) Location. Oral argument in person is heard before the Board 
only in Washington, DC. The Board may, in its discretion, hear oral 
argument by videoconference. The Board does not reimburse costs 
associated with an oral argument.
* * * * *

    Signed on this 14th day of December, 2020, in Washington, DC.
Eugene Scalia,
Secretary of Labor.
[FR Doc. 2020-28048 Filed 1-8-21; 8:45 am]
BILLING CODE 4510-31-P