Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges, 1800-1806 [2020-28049]

Agencies

• DEPARTMENT OF LABOR
• Office of the Secretary

[Federal Register Volume 86, Number 6 (Monday, January 11, 2021)]
[Rules and Regulations]
[Pages 1800-1806]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-28049]


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DEPARTMENT OF LABOR

Office of the Secretary

29 CFR Part 18

RIN 1290-AA36


Rules of Practice and Procedure for Administrative Hearings 
Before the Office of Administrative Law Judges

AGENCY: Office of the Secretary, Department of Labor.

ACTION: Direct final rule; request for comments

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SUMMARY: The Department of Labor (DOL or Department) is revising the 
Rules of Practice and Procedure for Administrative Hearings Before the 
Office of Administrative Law Judges (OALJ rules of practice and 
procedure) to provide for electronic filing (e-filing) and electronic 
service (e-service) of papers. In addition to technical amendments, the 
revised regulations provide that e-filing will be required for persons 
represented by attorneys or non-attorney representatives unless good 
cause is shown justifying a different form of filing. Self-represented 
persons will have the option of e-filing or of filing by conventional 
means. Finally, the Department is revising the OALJ rules of practice 
and procedure to require advance notice to the parties of the manner of 
a hearing or prehearing conference, whether in person in the same 
physical location, by telephone, by videoconference, or by other means.

DATES: This direct final rule is effective on February 25, 2021 without 
further action unless the Department receives significant adverse 
comment to this rule by midnight Eastern Standard Time on February 10, 
2021. If the Department receives significant adverse comment, it will 
publish a timely withdrawal of the final rule in the Federal Register.

ADDRESSES: You may read background documents, submit comments, and read 
comments received through the Federal eRulemaking Portal at https://www.regulations.gov. To locate this direct final rule, identified by 
Regulatory Identification Number (RIN) 1290-AA36, search for docket 
number DOL-2020-0015 or key words such as ``Office of Administrative 
Law Judges'' or ``Rules of Practice and Procedure for Administrative 
Hearings Before the Office of Administrative Law Judges.'' Instructions 
for submitting comments are found on the www.regulations.gov website. 
Please be advised that comments received will be posted without change 
to https://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, and email addresses in comments. 
It is the responsibility of the commenters to safeguard their 
information. If you need assistance to review the comments or the 
direct final rule, the Department will consider providing the comments 
and the direct final rule in other formats upon request. For assistance 
to review the comments or obtain the direct final rule in an alternate 
format, contact Mr. Todd Smyth, General Counsel, at (513) 684-3252.

FOR FURTHER INFORMATION CONTACT: Todd Smyth, General Counsel, U.S. 
Department of Labor, Office of Administrative Law Judges, 800 K Street 
NW, Washington, DC 20001-8002; telephone (513) 684-3252. 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.

SUPPLEMENTARY INFORMATION: This preamble has four sections: Section I 
describes the process of rulemaking using a direct final rule with a 
companion proposed rule; Section II provides background; Section III 
provides a section-by-section analysis of the regulatory text; and 
Section IV

[[Page 1801]]

addresses the administrative requirements for this rulemaking.

I. Direct Final Rule Published Concurrently With Companion Proposed 
Rule

    In direct final rulemaking, an agency publishes a direct final rule 
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 direct final rule, the agency publishes a Federal 
Register notice withdrawing the proposed rule, and the final 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. An agency typically uses direct final 
rulemaking when it anticipates the rule will be non-controversial.
    The Department has determined that this rule, which revises the 
OALJ rules of practice and procedure to accommodate electronic filing 
by persons appearing before OALJ and electronic service of ALJ-issued 
documents, is exempt from the notice and comment requirements under 5 
U.S.C. 553(b) as a rule of agency practice and procedure. Regardless, 
the agency has decided to allow for public input, so this rule is 
suitable for direct final rulemaking. The rule makes technical changes 
to OALJ's procedural rules, and--consistent with similar court and 
agency e-filing systems--provides that persons represented by attorney 
and non-attorney representatives will be required to e-file unless good 
cause is shown to be exempted, and that self-represented persons will 
have the option of e-filing or using conventional filing methods. Thus, 
the Department does not expect to receive significant adverse comment 
on this rule.
    The Department is also publishing a companion notice of proposed 
rulemaking in the ``Proposed Rules'' section of today's Federal 
Register to expedite notice-and-comment rulemaking in the event the 
Department receives significant adverse comment and withdraws this 
direct final rule. The proposed and direct final rules are 
substantively identical, and their respective comment periods run 
concurrently. The Department will treat comments received on the 
companion proposed rule as comments regarding the direct final rule and 
vice versa. Thus, if the Department receives significant adverse 
comment on either this direct final rule or the companion proposed 
rule, the Department will publish a Federal Register notice withdrawing 
this direct final rule and will proceed with the proposed rule. If no 
significant adverse comment is received, this direct final rule will 
become effective.
    For purposes of this direct final rule, 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 impacts of this rule on 
the regulated community.
    This rule is not an E.O. 13771 regulatory action because it is not 
significant under E.O. 12866.

II. Background

    On May 19, 2015, the regulations governing practice and procedure 
for proceedings before the United States Department of Labor, Office of 
Administrative Law Judges (OALJ) were significantly revised. 80 FR 
28768 (May 19, 2015). At the time, the Department acknowledged that 
implementation of a dedicated electronic filing system and electronic 
service system for OALJ adjudications would be beneficial, but stated 
that because the OALJ did not have a dedicated electronic filing and 
service system, the rules of practice and procedure necessarily focused 
on traditional filing and service. 80 FR at 28772, 28775. The 
Department now has an electronic filing and service system (eFile/
eServe system) for its adjudicatory agencies. This revision to part 18 
makes regulatory changes to implement this new system.
    When the Department revised the OALJ rules of practice and 
procedure in 2015, it modeled those rules on the Federal Rules of Civil 
Procedure (FRCP). The Department noted that ``[u]sing language similar 
or identical to the applicable FRCP gains the advantage of the broad 
experience of the Federal courts and the well-developed precedent they 
have created to guide litigants, judges, and reviewing authorities 
within the Department on procedure. Parties and judges obtain the 
additional advantage of focusing primarily on the substance of the 
administrative disputes, spending less time on the distraction of 
litigating about procedure.'' 77 FR 72142, 72144 (Dec. 4, 2012) 
(proposed rule). Accordingly, the Department revises part 18 to 
accommodate electronic filing with a view toward aligning part 18, to 
the extent practicable, with the equivalent federal rules.
    The current OALJ rule at 29 CFR 18.30 governs serving and filing of 
pleadings and other papers, and was modeled on FRCP 5. As noted above, 
Sec.  18.30 did not address in detail electronic filing or service 
because OALJ did not have a dedicated e-filing system in 2015. In 2018, 
FRCP 5 was amended to revise the provisions for electronic service 
based on the federal judiciary's experience with its electronic filing 
system, namely the Case Management/Electronic Case Files (CM/ECF) 
system. In brief, the changes to FRCP 5 deleted the requirement of 
consent in writing to electronic service where service is made on a 
registered user through the court's electronic filing system; ended the 
practice of leaving it to local rules to require or allow electronic 
filing, and instead established a uniform national rule that makes 
electronic filing mandatory for parties represented by counsel 
(providing, however, for certain exceptions); required that any local 
rule requiring electronic filing by self-represented parties must allow 
reasonable exceptions; established a uniform national signature 
provision; and provided that no certificate of service is required when 
a paper is served by filing it with the court's electronic filing 
system.
    Most of the Rule 5 revisions make sense in regard to DOL OALJ 
adjudications but with some modifications to reflect administrative 
practice and functional differences between CM/ECF and the Department's 
eFile/eServe system. As explained in more detail below, the regulatory 
amendments address the following:
     Require persons represented by attorney and non-attorney 
representatives to use the Department's system to file all papers 
electronically and to receive electronic service of documents unless 
another form of filing or service is allowed by the presiding judge for 
good cause or is required by standing order;

[[Page 1802]]

     give self-represented persons the option to use 
conventional means of filing, or to use the Department's system to file 
all papers electronically and to receive electronic service of 
documents;
     provide that a filing made through a person's eFile/eServe 
system account and authorized by that person, together with that 
person's name on a signature block, constitutes that person's 
signature.
    FRCP 5(d)(1)(B) was revised in 2018 to provide that ``[n]o 
certificate of service is required when a paper is served by filing it 
with the court's electronic-filing system.'' The Department, however, 
has determined that a certificate of service will continue to be 
required for all filings with OALJ given that (1) OALJ proceedings have 
a significant number of self-represented parties as participants, and 
(2) especially early in OALJ proceedings, the identification of parties 
and their representatives--and accurate contact information for such 
persons and entities--is often fluid and uncertain. Compare ``Notice 
for Comment on Proposed Amendments to the Local Civil and Criminal 
Rules for the Middle District of Louisiana'' (Apr. 12, 2019) (proposing 
to revise court's local rule to provide that a certificate of service 
is required for an initial complaint filed with the court's electronic 
filing system, and the case involves a party who is not an electronic 
filer); General Order 2019-06 (M.D. La. Nov. 12, 2019) (adopting 
amendment to Local Civil Rule 5(e)(1) to provide that ``[w]hen a 
document filed after the initial complaint is served by filing it with 
the Court's electronic filing system, no certificate of service is 
required when all parties are electronic filers.'').
    The Department notes that, as with all OALJ rules of practice and 
procedure, the e-filing provisions will not apply if they are 
``inconsistent with a governing statute, regulation, or executive 
order. . . . If a specific Department of Labor regulation governs a 
proceeding, the provisions of that regulation apply[.]'' 20 CFR 
18.10(a). For instance, OALJ will continue to serve decisions via 
certified mail where required by the governing statute or regulation, 
including on persons participating in the Department's eFile/eServe 
system.
    Finally, as a consequence of the COVID-19 national emergency in 
2020, courts and administrative adjudicators across the Nation have 
dramatically increased the use of telephonic and video hearings, 
including the Department of Labor's OALJ. The Department is revising 
Part 18 to require the judge to give advance notice of the manner of 
the hearing--whether in person in the same physical location, by 
telephone, by videoconference, or by other means--and to provide 
parties an opportunity to request a different manner of hearing. See 5 
U.S.C. 554(b)(1) (requiring timely notice of the time, place, and 
nature of the hearing).

III. Section-by-Section Analysis

General Provisions

Sec. 18.11 Definitions
    A definition of ``eFile/eServe system'' is added to the definitions 
section of part 18 to clarify that it means the Department of Labor's 
electronic filing and electronic service system for adjudications.
    A definition of ``registered user'' is added to the definitions 
section of part 18 to clarify that it means any person registered to 
file papers using the Department's eFile/eServe system.
    A definition of ``standing order'' is added to the definitions 
section of part 18. Amendments to Sec.  18.30 follow the language of 
FRCP 5 to permit exceptions, permissions, or requirements relating to 
e-filing to be established by ``local rule.'' OALJ is organized 
differently than the judiciary, and does not use local rules. However, 
OALJ sometimes issues Administrative Orders addressing court 
administration applicable to all cases pending before OALJ, or to all 
cases pending in a district office. For example, in the past when an 
OALJ district office was closed for an extended period due to severe 
weather conditions and the aftermath, the Chief Judge or District Chief 
Judge issued an Administrative Order extending filing dates and 
permitting alternative forms of filing (such as email) until the office 
returned to normal operations. Similarly, OALJ may need to issue 
standing orders to address national or local conditions impacting 
electronic filing.

Service, Format and Timing of Filings and Other Papers

Sec. 18.30 Service and Filing
    The current Sec.  18.30 is modeled on FRCP 5. FRCP 5 was amended in 
2018 in regard to electronic filing, and the following revisions to 
Sec.  18.30 are modeled on the FRCP 5 amendments to the extent 
practicable.
    Paragraph (a)(2)(ii)(E) is revised to permit a registered user of 
the Department's eFile/eServe system to serve filings on other 
registered users through the Department's system.
    A new paragraph (a)(2)(iii) is added to provide that represented 
persons required to file electronically using the Department's eFile/
eServe system, and self-represented persons who opt to file 
electronically using that system, are deemed to have consented to 
electronic service of documents issued by the judge and papers filed by 
other registered users of the system.
    The first sentence of paragraph (b)(1) is revised to harmonize it 
to the current FRCP 5 in regard to the time period for filing a paper. 
Specifically, rather than the current requirement to file a paper 
``within a reasonable time after service with a certificate of 
service,'' the amended paragraph requires filing ``no later than a 
reasonable time after service.'' The FRCP 5 made this change because 
``within'' might be read as barring filing before the paper is served. 
``No later than'' was substituted in FRCP 5 to ensure that it is proper 
to file a paper before it is served.
    Paragraph (b)(2) is revised to clarify that a paper submitted 
electronically in the Department's eFile/eServe system is filed when 
received by that system.
    The provisions of Sec.  18.30(b)(3) have been amended and 
reorganized. New paragraph (b)(3)(i)(A) provides that a person 
represented by an attorney or non-attorney representative is required 
to file using the Department's eFile/eServe system following the 
instructions on the system's website, unless another form of electronic 
or non-electronic filing is allowed by the judge for good cause or is 
allowed or required by standing order. This aligns practice before OALJ 
with current common practice before state and federal courts and 
agencies. 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). The 
Department believes that, rather than imposing undue costs or 
difficulties on representatives, e-filing will reduce costs and make 
filing with OALJ more convenient and certain. See generally

[[Page 1803]]

https://www.azd.uscourts.gov/efiling/advantages (outlining advantages of 
electronic case filing). At present, a representative filing via the 
Department's eFile/eServe system would need a computer, access to email 
and the internet, and a Portable Document Format (PDF) application. 
Such capacities are common, if not essential, in legal practice today. 
Moreover, because a representative is allowed to establish good cause 
for using other forms of filing, the amended rule allows for reasonable 
exceptions to an e-filing mandate. 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 Department time 
to update its communications to parties about how to file and allows 
parties who were previously filing and serving documents by mail to 
adjust to electronic filing.
    New paragraph (b)(3)(i)(B) provides that a self-represented person 
may use the Department's eFile/eServe system to file papers. This is a 
more permissive approach than found in FRCP 5, which allows a self-
represented party to file electronically only by court order or a local 
rule. The Department, by contrast, encourages all persons participating 
in OALJ hearings to use the Department's eFile/eServe system for 
filings.
    New paragraph (b)(3)(i)(C) provides that a filing made through the 
Department's eFile/eServe system containing the registered user's name 
on a signature block constitutes that person's signature. This is 
consistent with FRCP 5 and provides a simple, practical solution to the 
signing of papers filed electronically through the Department's system.
    New paragraph (b)(3)(i)(D) provides that a paper filed 
electronically is a written paper for purposes of the part 18 
regulations. This provision is consistent with FRCP 5(d)(3)(D).
    Current Sec.  18.30(b)(3) has been moved to paragraph (b)(3)(ii), 
and modified to state the permissible methods of filing for those 
persons excepted from mandatory use of the Department's eFile/eServe 
system. Paragraph (b)(3)(ii) is also revised to state the website 
address at which current OALJ National and District office addresses 
are listed--specifically: https://www.dol.gov/agencies/oalj/contacts.
    Current Sec.  18.30(b)(3)(i) requires prior permission from the 
judge to file by facsimile. With the availability of e-filing, the 
concerns that prompted that limitation on facsimile filing will be 
largely mooted. For self-represented persons who do not have ready 
access to reliable internet services, filing by facsimile may be a 
viable alternative. Thus, the Department will eliminate the requirement 
of current Sec.  18.30(b)(3)(i)(A) to receive prior permission to file 
by facsimile. The Department, however, will retain the current 
requirements for use of a facsimile cover sheet and retention of the 
original document and a transmission record. These requirements are 
consolidated and re-lettered as new paragraphs (b)(3)(ii)(A) and (B).
    Current Sec.  18.30(b)(4) is deleted as it has been mooted by the 
new provisions in paragraph 18.30(b)(3)(i).
Sec. 18.32 Computing and Extending Time
    FRCP 6(a) governs the computation of time periods under the FRCP, 
in any local rule or court order, or in any statute that does not 
specify a method of computing time. In this regard, FRCP 6(a)(1)(C) 
provides that the ``last day'' of a time period is included in the 
calculation, and provides that the ``last day'' ends at midnight in the 
court's time zone for electronic filing, and when the clerk's office is 
scheduled to close for filing by other means. FRCP 6(a)(4)(A) and (B).
    The current Sec.  18.32 is modeled on FRCP 6, but does not address 
electronic filing. Thus, the Department revises Sec.  18.32(a)(2)(i) to 
provide that unless a different time is set by a statute, executive 
order, regulation, or judge's order, for electronic filing, the ``last 
day'' goes through 11:59:59 p.m. in the time zone of the presiding 
judge's office--or, for cases not yet assigned to an OALJ national or 
district office--in the time zone of the office of the Chief Judge of 
OALJ. Although standardizing the time for electronic filing at midnight 
Eastern Time on the last day of the filing period was considered, 
because the Department's eFile/eServe system is administered in 
Washington, DC, the Department opted to set the time based on local 
time at the presiding judge's location in order not to reduce hours 
available for e-filing for persons outside the Eastern time zone. In 
regard to filing by means other than electronic filing, the Department 
revises Sec.  18.32(a)(2)(ii) to follow FRCP 6(a)(4)(B) to state ``when 
the clerk's office is scheduled to close.'' OALJ clerks' offices close 
at 4:30 p.m. in the time zone of the presiding judge's office or 4:30 
p.m. in the time zone of the office of the Chief Judge of OALJ for 
cases not yet assigned to an OALJ national or district office.
Sec. 18.34 Format of Papers Filed
    The current Sec.  18.34 addresses the format of papers filed in 
hard copy. New Sec.  18.34 requires that papers filed electronically be 
in a format that is accepted by the Department's eFile/eServe system.

Prehearing Procedure

    Current Sec.  18.40(a) requires that the judge provide at least 14 
days' notice of the date, time, and place of the hearing. In view of 
increased use of telephonic and video hearings, Sec.  18.40(a) is 
revised to require the judge to also provide 14 days' notice of the 
manner of hearing, whether in person in the same physical location, by 
telephone, by videoconference, or by other means. Paragraph 18.40(a) is 
also revised to refer to the provisions of new Sec.  18.30(a) in regard 
to how the notice of hearing will be sent to the parties. This revision 
is necessary to harmonize Sec.  18.40(a) with the new eFile/eServe 
system.
    The Department amends Sec.  18.40(b) to require the judge to 
consider the convenience and necessity of the parties and witnesses in 
selecting the manner of the hearing.
    Current Sec.  18.41 addresses changes to the time, date, and place 
of the hearing. The Department amends Sec.  18.41(a), (b), and (c) to 
add the manner of the hearing to the subjects that can be changed by 
the judge or upon motion of a party.
    Current Sec.  18.44(b) provides that prehearing conferences may be 
conducted in person, by telephone, or other means. New Sec.  18.44(b) 
explicitly includes videoconferences as a permissible means of 
conducting prehearing conferences.

Hearing

Sec. 18.82 Exhibits
    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). Accordingly, the Department must move 
expeditiously toward conducting administrative adjudications using 
electronic records to the greatest extent practical. Thus, new Sec.  
18.82(a) provides that those who are required or have opted to file 
using the Department's eFile/eServe system must file electronically any 
exhibits to be offered into evidence at the hearing, unless the exhibit 
is not susceptive to electronic filing. An example of an

[[Page 1804]]

exhibit not susceptive to electronic filing is a three-dimensional 
object. Current paragraphs (a) through (g) are re-lettered to 
paragraphs (b) through (h). Newly lettered paragraph (d) on exchange of 
exhibits is amended to clarify that if a copy of a written exhibit 
being offered into evidence was previously filed electronically 
pursuant to Sec.  18.82(a), a physical copy of the exhibit need not be 
produced for the judge at the hearing unless the judge directs 
otherwise.

IV. Administrative Requirements

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, reducing costs, harmonizing rules, and promoting flexibility.
    This direct final 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 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 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 (PRA)

    The Department has determined that this direct final 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 direct final 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 direct final rule in accordance 
with Executive Order 13175 and has determined that it does not have 
``tribal implications.'' The direct final 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 29 CFR Part 18

    Administrative practice and procedure, Labor.

    For the reasons set out in the Preamble, the Department of Labor 
amends 29 CFR part 18 as set forth below.

PART 18--RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE 
HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES

0
1. The authority citations for part 18 continue to read as follows:

    Authority:  5 U.S.C. 301; 5 U.S.C. 551-553; 5 U.S.C. 571 note; 
E.O. 12778; 57 FR 7292.


0
2. Amend Sec.  18.11 by adding definitions in alphabetical order for 
``eFile/eServe system'', ``Registered user'', and ``Standing order'' to 
read as follows:


Sec.  18.11  Definitions.

* * * * *
    eFile/eServe system means the Department of Labor's electronic 
filing and electronic service system for adjudications.
* * * * *
    Registered user means any person registered to file papers using 
the Department's eFile/eServe system.
* * * * *
    Standing order means an order issued by the Chief Judge or District 
Chief Judge addressing court administration that applies to all cases 
pending before OALJ or an OALJ district office, and which is in force 
until changed or withdrawn by a subsequent order.

0
3. Amend Sec.  18.30 by revising paragraph (a)(2)(ii)(E), adding 
paragraph (a)(2)(iii), revising the first sentence in paragraph (b)(1) 
introductory text, revising paragraphs (b)(2) and (3), and removing 
paragraph (b)(4).
    The revisions and addition read as follows:


Sec.  18.30  Service and filing.

    (a) * * *
    (2) * * *
    (ii) * * *
    (E) Sending it to a registered user by filing it with the 
Department's eFile/eServe system or sending it by other electronic 
means that the person consented to in writing--in either of which 
events service is complete upon filing or sending, but is not effective 
if the filer or sender learns that it did not reach the person to be 
served; or
* * * * *
    (iii) Consent to electronic service. Any person required to file 
electronically pursuant to paragraph (b)(3)(i)(A) of this section and 
any person who opts to file electronically pursuant to paragraph 
(b)(3)(i)(B) of this section is deemed to have consented to electronic 
service of documents issued by the judge and papers filed by a 
registered user of the Department's eFile/eServe system.
* * * * *
    (b) * * *
    (1) * * * Any paper that is required to be served must be filed no 
later than a reasonable time after service with a certificate of 
service. * * *
    (2) Filing: when made--in general. A paper submitted electronically 
in the Department's eFile/eServe system is filed when received by the 
system. Papers submitted by other means are filed when received by the 
docket clerk or by the judge during a hearing.
    (3) Filing: how made--(i) Electronic filing and signing--(A) By a 
represented

[[Page 1805]]

person--generally required; exceptions. Beginning on April 12, 2021, a 
person represented by an attorney or non-attorney representative must 
file using the Department's eFile/eServe system following the 
instructions on the system's website, unless another form of electronic 
or non-electronic filing is allowed by the judge for good cause or is 
allowed or required by standing order.
    (B) By a self-represented person--when allowed or required. A 
person not represented by an attorney or non-attorney representative 
may file using the Department's eFile/eServe system following the 
instructions on the system's website.
    (C) Signing. A filing made through a person's eFile/eServe system 
account and authorized by that person, together with that person's name 
on a signature block, constitutes the person's signature.
    (D) Same as a written paper. A paper filed electronically is a 
written paper for purposes of these rules.
    (ii) Other forms of filing. Persons who are excepted from e-filing 
under paragraph (b)(3)(i)(A) of this section, or who have opted not to 
use e-filing as permitted by paragraph (b)(3)(i)(B) of this section, 
may file papers by mail, courier service, hand delivery, facsimile, or 
alternative means of electronic delivery. The mailing addresses for 
OALJ's National and District offices are found at https://www.dol.gov/agencies/oalj/contacts.
    (A) Filing by facsimile--cover sheet. Filings by facsimile must 
include a cover sheet that identifies the sender, the total number of 
pages transmitted, and the matter's docket number and the document's 
title.
    (B) Filing by facsimile--retention of the original document. The 
original signed document will not be substituted into the record unless 
required by law or the judge. Any party filing a facsimile of a 
document must maintain the original document and transmission record 
until the case is final. A transmission record is a paper printed by 
the transmitting facsimile machine that states the telephone number of 
the receiving machine, the number of pages sent, the transmission time, 
and an indication that no error in transmission occurred. Upon a 
party's request or judge's order, the filing party must provide for 
review the original transmitted document from which the facsimile was 
produced.

0
4. Amend Sec.  18.32 by revising paragraph (a)(2) to read as follows:


Sec.  18.32  Computing and extending time.

    (a) * * *
    (2) ``Last day'' defined. Unless a different time is set by a 
statute, regulation, executive order, or judge's order, the ``last 
day'' ends:
    (i) For electronic filing, at 11:59:59 p.m. in the time zone of the 
presiding judge's office--or, for cases not yet assigned to an OALJ 
national or district office--at 11:59:59 p.m. in the time zone of the 
office of the Chief Judge of OALJ; and
    (ii) For filing by other means, when the clerk's office is 
scheduled to close.
* * * * *

0
5. Amend Sec.  18.34 by revising the introductory text to read as 
follows:


Sec.  18.34   Format of papers filed.

    Papers submitted electronically in the Department's eFile/eServe 
system must be in a format accepted by the Department's eFile/eServe 
system. Papers not filed electronically must be printed in black ink on 
8.5 x 11-inch opaque white paper. All papers must be legible, and begin 
with a caption that includes:
* * * * *

0
6. Revise Sec.  18.40 to read as follows:


Sec.  18.40  Notice of hearing.

    (a) In general. Except when the hearing is scheduled by calendar 
call, the judge must, at least 14 days before the hearing, notify the 
parties of the hearing's date, time, and place, and of the manner of 
the hearing, whether in person in the same physical location, by 
telephone, by videoconference, or by other means. The notice is sent by 
the means provided for in Sec.  18.30(a), unless the judge determines 
that circumstances require service by certified mail or other means. 
The parties may agree to waive the 14-day notice for the hearing.
    (b) Date, time, place, and manner. The judge must consider the 
convenience and necessity of the parties and the witnesses in selecting 
the date, time, place, and manner of the hearing.

0
7. Amend Sec.  18.41 by revising the section heading and paragraphs 
(a), (b) introductory text, and (b)(2) to read as follows:


Sec.  18.41   Continuances and changes in place or manner of hearing.

    (a) By the judge. Upon reasonable notice to the parties, the judge 
may change the time, date, place, and manner of the hearing.
    (b) By a party's motion. A request by a party to continue a hearing 
or to change the place or manner of the hearing must be made by motion.
* * * * *
    (2) Change in place or manner of hearing. A motion to change the 
place or manner of a hearing must be filed promptly.

0
8. Amend Sec.  18.44 by revising paragraph (b) to read as follows:


Sec.  18.44  Prehearing conference.

* * * * *
    (b) Scheduling. Prehearing conferences may be conducted in person 
in the same physical location, by telephone, by videoconference, or by 
other means after reasonable notice of time, place, and manner of 
conference has been given.
* * * * *

0
9. Revise Sec.  18.82 to read as follows:


Sec.  18.82   Exhibits.

    (a) Filing of exhibits to be offered into evidence. Persons who are 
required to file electronically pursuant to Sec.  18.30(b)(3)(i)(A)--or 
who have opted to use e-filing as permitted by Sec.  
18.30(b)(3)(i)(B)--must electronically file in the Department's eFile/
eServe system any exhibits to be offered in evidence at a hearing, 
unless that exhibit is not susceptive to filing in electronic form.
    (b) Identification. All exhibits offered in evidence must be marked 
with a designation identifying the party offering the exhibit and must 
be numbered and paginated as the judge orders.
    (c) Electronic data. By order, the judge may prescribe the format 
for the submission of data that is in electronic form.
    (d) Exchange of exhibits. When written exhibits are offered in 
evidence, one copy must be furnished to the judge and to each of the 
parties. If the exhibit being offered was previously filed with the 
judge, either electronically pursuant to paragraph (a) of this section 
or otherwise, and furnished to the other parties prior to hearing, the 
exhibit need not be produced at the hearing unless the judge directs 
otherwise. If the exhibit being offered at the hearing was not 
furnished to each party or filed with the judge prior to the hearing, a 
paper copy of that exhibit for the judge and each party must be 
produced at the hearing unless the judge directs otherwise. If the 
judge does not fix a date for the exchange of exhibits, the parties 
must exchange copies of exhibits at the earliest practicable time 
before the hearing begins.
    (e) Authenticity. The authenticity of a document identified in a 
pre-hearing exhibit list is admitted unless a party files a written 
objection to authenticity at least seven days before the hearing. The 
judge may permit a party to challenge a document's authenticity if

[[Page 1806]]

the party establishes good cause for its failure to file a timely 
written objection.
    (f) Substitution of copies for original exhibits. The judge may 
permit a party to withdraw original documents offered in evidence and 
substitute accurate copies of the originals.
    (g) Designation of parts of documents. When only a portion of a 
document contains relevant matter, the offering party must exclude the 
irrelevant parts to the greatest extent practicable.
    (h) Records in other proceedings. Portions of the record of other 
administrative proceedings, civil actions, or criminal prosecutions may 
be received in evidence, when the offering party shows the copies are 
accurate.

    Signed on this 14th day of December, 2020, in Washington, DC.
Eugene Scalia,
Secretary of Labor.
[FR Doc. 2020-28049 Filed 1-8-21; 8:45 am]
BILLING CODE P