Rules of Practice and Procedure for Administrative Hearings Before the Office of Administrative Law Judges, 1862-1868 [2020-28050]

Agencies

• DEPARTMENT OF LABOR
• Office of the Secretary

[Federal Register Volume 86, Number 6 (Monday, January 11, 2021)]
[Proposed Rules]
[Pages 1862-1868]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-28050]


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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

ACTION: Notice of proposed rulemaking; request for comments.

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SUMMARY: The Department of Labor (DOL or Department) is proposing to 
revise 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 papers by conventional means. Finally, the Department is 
proposing to revise

[[Page 1863]]

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: Submit comments on or before February 10, 2021.

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 notice of proposed rulemaking, 
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 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. 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 proposed regulatory text; 
and Section IV addresses the administrative requirements for this 
rulemaking.

I. Direct Final Rule Published Concurrently With Companion Proposed 
Rule

    This notice of proposed rulemaking is being published concurrently 
with a direct final rule on the same subject. In the ``Rules and 
Regulations'' section of this issue of the Federal Register, the 
Department approved these amendments as a direct final rule without a 
prior proposal because the Department views such amendments as a 
noncontroversial action and anticipates no adverse comment. This 
companion notice of proposed rulemaking in the ``Proposed Rules'' 
section of this issue of the Federal Register is published to expedite 
notice-and-comment rulemaking in the event the Department receives 
significant adverse comment and withdraws the 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 direct final rule as 
comments regarding the proposed rule, and vice versa. Thus, if the 
Department receives significant adverse comment on either this proposed 
rule or the companion direct final rule, the Department will publish a 
Federal Register notice withdrawing the direct final rule and will 
proceed with this proposed rule. If the Department does not receive a 
timely filed adverse comment, it will take no further action on this 
proposed rule and the direct final rule will become effective with no 
further action on February 25, 2021. For more information about the 
Department's determination to publish this proposed rule as a companion 
to the direct final rule, and what constitutes a significant adverse 
comment, refer to Section I of the Supplementary Information portion of 
the direct final rule.
    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 proposed 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 proposed 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 proposes to amend 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

[[Page 1864]]

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 propose to 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;
     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 should 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 proposes to 
revise 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 proposed to be 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 proposed to be 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 proposed to be 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 proposed 
revisions to Sec.  18.30 are modeled on the FRCP 5 amendments to the 
extent practicable.
    Paragraph (a)(2)(ii)(E) is proposed to be 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 proposed to be 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 proposed to be 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 proposed 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 proposed to be 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) are proposed to be amended and 
reorganized. New paragraph (b)(3)(i)(A) is proposed to provide 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

[[Page 1865]]

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 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.
    Proposed 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.
    Proposed 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.
    Proposed 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) is proposed to be 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. The Department also proposes to provide in paragraph 
(b)(3)(ii) 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 proposes to eliminate the 
requirement of current Sec.  18.30(b)(3)(i)(A) to receive prior 
permission to file by facsimile. The Department, however, proposes to 
retain the current requirements for use of a facsimile cover sheet and 
retention of the original document and a transmission record. These 
requirements are proposed to be consolidated and re-lettered as new 
paragraphs (b)(3)(ii)(A) and (B).
    Current Sec.  18.30(b)(4) is proposed to be deleted as it will be 
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 proposes to revise 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 proposes 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 proposes to revise 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. The Department proposes to amend Sec.  18.34 to require 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, the Department proposes 
to amend Sec.  18.40(a) 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. The 
Department also proposes to revise Sec.  18.40(a) 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 proposes to amend 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 proposes to amend 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.

[[Page 1866]]

    Current Sec.  18.44(b) provides that prehearing conferences may be 
conducted in person, by telephone, or other means. The Department 
proposes to amend Sec.  18.44(b) to explicitly include 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, the 
Department proposes a new Sec.  18.82(a) to provide 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 exhibit not susceptive to 
electronic filing is a three-dimensional object. Current paragraphs (a) 
through (g) are proposed to be re-lettered to paragraphs (b) through 
(h). The Department proposes that newly lettered paragraph (d) on 
exchange of exhibits would be 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 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 
proposed 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 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 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.''

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 
proposes to amend 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) * * *

[[Page 1867]]

    (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 Sec.  18.30(b)(3)(i)(A) and any person who 
opts to file electronically pursuant to Sec.  18.30(b)(3)(i)(B) 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 person--generally required; exceptions. Beginning on [DATE 
45 DAYS AFTER EFFECTIVE DATE OF FINAL RULE], 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 Sec.  18.30(b)(3)(i)(A), or who have opted not to use e-filing as 
permitted by Sec.  18.30(b)(3)(i)(B), 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 to revise the section title and paragraphs (a), 
(b) introductory text, and (b)(2) 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.
    (1) * * *
    (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.

[[Page 1868]]

    (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 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. 2020-28050 Filed 1-8-21; 8:45 am]
BILLING CODE 4510-20-P