Rules of Practice and Procedure, 1795-1800 [2020-28057]

Agencies

• DEPARTMENT OF LABOR
• Benefits Review Board

[Federal Register Volume 86, Number 6 (Monday, January 11, 2021)]
[Rules and Regulations]
[Pages 1795-1800]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-28057]


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DEPARTMENT OF LABOR

Benefits Review Board

20 CFR Part 802

RIN 1290-AA35


Rules of Practice and Procedure

AGENCY: Benefits Review Board, Department of Labor.

ACTION: Direct final rule.

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SUMMARY: The Department of Labor takes this action to require 
electronic filing (e-filing) and make acceptance of electronic service 
(e-service) automatic by attorneys and lay representatives representing 
parties in proceedings before the Benefits Review Board (Board), and to 
provide an option for self-represented parties to utilize these 
electronic capabilities.

DATES: This direct final rule is effective on February 25, 2021, unless 
the Department receives a significant adverse comment to this direct 
final rule or the companion proposed rule by February 10, 2021 that 
explains why the direct final rule is inappropriate, including 
challenges to the rule's underlying premise or approach, or why the 
rule will be ineffective or unacceptable without a change. If a timely, 
significant adverse comment is received, the Department will publish a 
notification of withdrawal of the direct final rule in the Federal 
Register before the effective date. This notification may withdraw the 
direct final rule in whole or in part.

ADDRESSES: You may submit comments, identified by Regulatory 
Identification Number (RIN) 1290-AA35, only by the following method: 
Electronic Comments. Submit comments through the Federal eRulemaking 
Portal https://www.regulations.gov. To locate the direct final rule, use 
docket number DOL-2020-0013 or key words such as ``Administrative 
practice and procedure,'' ``Black lung benefits,'' ``Longshore and 
harbor workers,'' or ``Workers' compensation.'' Follow the instructions 
for submitting comments. All comments must be received by 11:59 p.m. on 
the date indicated for consideration in this rulemaking.
    Instructions: All comments received generally 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, or email 
addresses in comments. It is the responsibility of the commenter to 
safeguard personal 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. Thomas Shepherd, Clerk of the Appellate Boards, at 
(202) 693-6319.

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

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

I. Direct Final Rule Published Concurrently With Companion Proposed 
Rule

    The Department is simultaneously publishing with this direct final 
rule an identical ``proposed'' 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 revisions to the Board's procedural regulations 
would require represented parties, unless exempted by the Board for 
good cause shown, to file documents via the Board's new electronic case 
management system, which will also automatically serve

[[Page 1796]]

these documents on registered system users. Some parties are already e-
filing documents with the Board on a voluntary basis. Moreover, this 
new system is similar to those used by courts and other administrative 
agencies and will thus be familiar to the representatives. The rule 
also would give self-represented (pro se) parties the option to file 
and serve documents through the electronic case management system or 
via conventional methods. These changes to the Board's procedures and 
practices should not be controversial. The Department has determined 
that this rule is exempt from the notice and comment requirements under 
5 U.S.C. 553(b) as a rule of agency practice and procedure. 
Nonetheless, the agency has decided to allow for public input by 
issuing a direct final rule and concurrent notice of proposed 
rulemaking.
    The comment period for this direct final rule runs concurrently 
with the comment period for the proposed rule. Any comments received in 
response to this direct final rule also will be considered as comments 
regarding the proposed 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 the rule would be 
ineffective without the addition.
    The Department requests comments on all issues related to this 
rule, including economic or other regulatory impacts of this rule on 
the regulated community. All interested parties should comment at this 
time because the Department will not initiate an additional comment 
period on the proposed rule even if it withdraws the direct final rule.
    This rule is not an E.O. 13771 regulatory action because the Office 
of Information and Regulatory Affairs has determined it is not 
significant under E.O. 12866.
    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), 
the Office of Information and Regulatory Affairs designated this rule 
as not a ``major rule,'' as defined by 5 U.S.C. 804(3).

II. Background of This Rulemaking

    The Department promulgates this rule under the authority of 5 
U.S.C. 301, as well as the Black Lung Benefits Act, 30 U.S.C. 901 et 
seq., and the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 
901 et seq.
    The Board is promulgating a rule that would make e-filing mandatory 
and acceptance of e-service automatic for parties represented by 
attorneys and lay representatives. E-filing has been optional and e-
service was not available through the Board's prior electronic system. 
As a result, the Board would receive filings in both paper and 
electronic form. The Board's long-term goal is to have entirely 
electronic case files (e-case files), which the Board believes will 
significantly benefit both the Board and the participants in Board 
appeals by allowing the Board to more efficiently process incoming 
documents and to reduce the time it takes to adjudicate claims. 
Requiring attorneys and lay representatives to use e-filing and 
automatically receive service of e-filed documents through the 
Department's electronic case management system will help the Board move 
toward this goal.
    The Board previously used DOL Appeals, a consolidated web-based 
case tracking system deployed in FY2011 to replace individual legacy 
applications and streamline business processes specific to each of the 
three Adjudicatory Boards in the Department: the Board, the 
Administrative Review Board (ARB), and the Employees' Compensation 
Appeals Board (ECAB). The Board reviews appeals of administrative law 
judges' decisions arising under the Black Lung Benefits Act, and the 
Longshore and Harbor Workers' Compensation Act and its extensions. The 
ARB issues decisions in cases arising under a variety of worker 
protection laws, including those governing environmental, 
transportation, and securities whistleblower protections; H-1B 
immigration provisions; child labor; employment discrimination; job 
training; seasonal and migrant workers; and Federal construction and 
service contracts. ECAB hears appeals taken from determinations and 
awards under the Federal Employees' Compensation Act with respect to 
claims of Federal employees injured in the course of their employment.
    The DOL Appeals case management system provided a broad range of 
capabilities to the Adjudicatory Boards' staff for inputting, 
processing, tracking, managing, and reporting specific details on 
thousands of cases since its initial implementation. In FY2013, the 
system was enhanced to provide access to parties. More than 1,400 
individuals were registered users of the DOL Appeals system. Users had 
the ability to check their case status, electronically file motions and 
briefs, and receive Board issuances electronically. However, users who 
e-filed documents still had to serve those documents on other parties 
by some other method (typically mail, commercial delivery, or 
electronic mail), as DOL Appeals did not have an automatic e-service 
function like that of the Federal courts' electronic filing system. 
Moreover, because e-filing has been optional, the Board received, and 
still receives, many paper filings, including from attorneys and lay 
representatives.
    At present, the Board lacks sufficient resources to digitally image 
all pleadings received in paper form, and that option is unduly 
burdensome and labor intensive. Furthermore, if e-filing remains 
optional, it is unlikely that the Board will achieve the goal of 
completely electronic case files. If, however, attorneys and lay 
representatives are required to e-file all documents through the 
Board's new case management system, imaging the remaining paper 
pleadings from self-represented parties would be manageable for the 
Board. In addition, greater utilization of e-filing and e-service 
through the new case management system will reduce case processing 
times by eliminating the timeframes required to allow for the delivery 
of traditional mailings. These time savings will allow the Board to 
more efficiently process appeals without any sacrifice to quality of 
work and will also greatly reduce mailing and copying costs for both 
the Board and the parties.
    Although Federal agencies are required by law to provide 
information and services via the internet, agencies must also consider 
the impact on persons without access to the internet and, to the extent 
practicable, ensure that the availability of government services has 
not been diminished for such persons. 44 U.S.C. 3501 note. Accordingly, 
the Board will make e-filing and acceptance of e-service optional for 
self-represented parties. The Board sees no legal restriction to making 
e-filing mandatory and acceptance of e-service automatic for attorneys 
and lay representatives, and does not believe it would impose undue 
costs or difficulties for them, particularly since a party may obtain 
an exemption for good cause shown. The Board notes in this regard that 
e-filing

[[Page 1797]]

is generally mandatory for attorneys in the Federal district courts and 
U.S. Courts of Appeals; unless an exemption is granted, only self-
represented parties have the option of filing pleadings in paper form. 
The Board also notes that, consistent with the Federal courts, the 
Department's electronic case management system requires the filer to 
convert other electronic formats to Portable Document File (PDF) before 
filing. Parties filing via the electronic case management system need a 
computer, access to email and the internet, and the ability to convert 
documents to a PDF format. The rule also provides that registered 
electronic case management system users are deemed to accept service of 
all documents through the system. The Board will issue decisions and 
orders electronically to registered users who are parties to a case.

III. Section-by-Section Analysis of Direct Final Rule

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

Sec. 802.219 Motions to the Board; Orders

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

Sec. 802.221 Computation of Time

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

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

    Section 802.222 is a new rule containing all filing requirements. 
The rule incorporates many of the general provisions in current Sec.  
802.216 and adds additional provisions for electronic filings. The rule 
also includes the special provisions for determining when a notice of 
appeal is filed that currently appear in Sec.  802.207. Placing all of 
this information in one section will clarify the parties' obligations 
when filing any pleading, exhibit, or other document with the Board.
    Paragraph (a) contains the general requirements that apply to all 
pleadings, including captions, certificates of service, signatures, and 
formatting. Because documents in a case may need to be served by more 
than one method, paragraph (a)(2) requires the parties to include 
detailed service information on the certificate of service. To simplify 
signatures on electronic filings, paragraph (a)(3) provides that 
pleadings filed via the case management system will be deemed signed by 
the filing person.
    Paragraph (b) is a new provision requiring filing parties to redact 
certain personally identifiable and sensitive information from all 
documents filed with the Board. The rule is intended to protect the 
interests of the parties, minors who may be involved in a case, and the 
public generally. The language of this rule is based on similar rules 
in the Federal courts. See, e.g., Fed. R. Civ. P. 5.2(a); see also Fed. 
R. App. P. 25(a)(5).
    Paragraph (c) governs nonelectronic filings. It retains the current 
requirements for submitting paper documents (e.g., parties must file an 
original and two copies of each pleading) and includes the Board's 
address, which is currently located in Sec.  802.204.
    Paragraph (d) is an entirely new provision addressing electronic 
filings. Paragraph (d)(1) requires attorneys and lay representatives to 
register for the electronic case management system and file all 
documents through it. This requirement applies only to those documents 
filed 45 days after the effective date or later. This time period 
between the effective date, when litigants can be certain that the 
direct final rule will not be withdrawn, and the applicability date, on 
which e-filing becomes mandatory, allows the Office of Administrative 
Law Judges to update its notices of appeal rights so that by the time 
e-filing with the Board is mandatory, parties will have received a 
notice of appeal rights with updated information. It also allows 
parties who were previously filing and serving documents by mail to 
adjust to electronic filing. As discussed above, mandating electronic 
filing and automatically serving documents electronically filed through 
the system will benefit the parties and improve case processing. The 
regulation requires that e-filed documents be in PDF format and 
expresses a preference for text-searchable PDF format. To simplify the 
filing process, the regulation also informs filers that no paper copies 
need be filed unless requested by the Board; electronic submission 
alone is sufficient. Paragraph (d)(2) permits attorneys and lay 
representatives to request, by motion, an exemption from mandatory e-
filing or acceptance of automatic e-service for good cause shown.

[[Page 1798]]

    Paragraph (d)(3) allows self-represented (i.e., pro se) parties to 
file in either electronic or nonelectronic format. Providing this 
flexibility will allow these parties to easily participate in their 
cases. To remove any confusion about whether an electronically filed 
document is a ``paper,'' paragraph (d)(4) specifically provides that 
such documents are written papers for purposes of all of the Board's 
procedural rules. Paragraph (d)(5) addresses technical failures in two 
ways. First, any person encountering technical difficulties in filing 
or receiving electronic documents through the case management system 
may file a motion with the Board requesting relief appropriate to the 
particular incident. The Board encourages filers to retain 
documentation of the failure in these instances. Second, paragraph 
(d)(5) provides that the Board may issue a special order providing 
relief (e.g., allowing nonelectronic filings) when the case management 
system is not operational.
    Paragraph (e) contains special rules on filing notices of appeal. 
Paragraph (e)(1) incorporates the general rule contained in current 
Sec.  802.207(a)(1) on the filing date of a notice of appeal. Paragraph 
(e)(2) generally incorporates the provision in current Sec.  
802.207(a)(2) that the Board may consider an appeal submitted to 
another governmental unit to have been filed with the Clerk of the 
Board as of the date it was received by the other governmental unit. 
Paragraph (e)(2) does not specifically require that the other 
governmental unit promptly forward the notice of appeal to the office 
of the Clerk of the Board because the Board does not have such 
authority. Paragraph (e)(3) incorporates the provisions in current 
Sec.  802.207(b) that permit the Board to use the date of mailing as 
the filing date for the notice of appeal if appeal rights would 
otherwise be lost. Paragraph (e)(3) extends this same protection to 
notices of appeal sent by commercial carrier (e.g., FedEx, UPS) and 
provides that the filing date in these instances is the date of 
delivery to the commercial carrier. Given the widespread use of 
commercial carriers, this additional provision will help ensure that 
parties' appeal rights are not lost. Finally, paragraph (e)(4) 
clarifies that electronic notices of appeal filed through the case 
management system are considered received, and thus filed, as of the 
date and time recorded by the system.

Sec. 802.223 Service Requirements

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

IV. Administrative Requirements of the Rulemaking

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

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

    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., 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 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 rule in accordance with Executive 
Order 13175 and has determined that it does

[[Page 1799]]

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 20 CFR Part 802

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

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

PART 802--RULES OF PRACTICE AND PROCEDURE

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

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


Sec.  802.204   [Removed and Reserved]

0
2. Remove and reserve Sec.  802.204.


Sec.  802.207   [Removed and Reserved]

0
3. Remove and reserve Sec.  802.207.


Sec.  802.216   [Removed and Reserved]

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


Sec.  802.219   Motions to the Board; orders.

* * * * *
    (d) The rules governing the filing and service of documents in 
Sec. Sec.  802.222 and 802.223 apply to all motions.
* * * * *

0
6. Revise Sec.  802.221 to read as follows:


Sec.  802.221   Computation of time.

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

0
7. Add Sec.  802.222 to subpart B to read as follows:


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

    This section prescribes rules and procedures by which parties and 
representatives to proceedings before the Board file pleadings 
(including notices of appeal, petitions for review and briefs, response 
briefs, additional briefs, and motions), exhibits, and other documents 
including routine correspondence.
    (a) Requirements for all pleadings. All pleadings filed with the 
Board must--
    (1) Include a caption and title.
    (2) Include a certificate of service containing--
    (i) The date and manner of service;
    (ii) The names of persons served; and
    (iii) Their mail or electronic mail addresses or the addresses of 
the places of delivery, as appropriate for the manner of service.
    (3) Include a signature of the party (or his or her attorney or lay 
representative) and date of signature. Pleadings filed by an attorney, 
lay representative or self-represented party via the Board's case 
management system will be deemed to be signed by that person.
    (4) Conform to standard letter dimensions (8.5 x 11 inches).
    (b) Redacted filings and exhibits. Any person who files a pleading, 
exhibit, or other document that contains an individual's social 
security number, taxpayer-identification number, or birth date; the 
name of an individual known to be a minor; or a financial-account 
number, must redact all such information, except the last four digits 
of the social security number and taxpayer-identification number; the 
year of the individual's birth; the minor's initials; and the last four 
digits of the financial-account number.
    (c) Nonelectronic filings. All nonelectronic pleadings filed with 
the Board must be secured at the top. For each pleading filed with the 
Board, the original and two legible copies must be submitted. 
Nonelectronic filings must be sent to the U.S. Department of Labor, 
Benefits Review Board, ATTN: Office of the Clerk of the Appellate 
Boards (OCAB), 200 Constitution Ave. NW, Washington, DC 20210-0001, or 
otherwise presented to the Clerk.
    (d) Electronic filings. (1) Except as provided in paragraph (d)(2) 
of this section, beginning on April 12, 2021, attorneys and lay 
representatives must register for the Board's electronic case 
management system and file all pleadings, exhibits, and other documents 
with the Board through this system (e-file). All e-filed documents must 
be in Portable Document Format (PDF). The Board prefers that pleadings 
be filed in text-searchable PDF format. Paper copies are not required 
unless requested by the Board.
    (2) Attorneys and lay representatives may request an exemption 
(pursuant to Sec.  802.219) for good cause shown. Such a request must 
include a detailed explanation why e-filing or acceptance of e-service 
should not be required.
    (3) Self-represented parties may file pleadings, exhibits, and 
other documents in electronic or nonelectronic form in accordance with 
paragraph (c) or (d) of this section.
    (4) A document filed electronically is a written paper for purposes 
of this Part.
    (5) A person who is adversely affected by a technical failure in 
connection with filing or receipt of an electronic document may seek 
appropriate relief from the Board under Sec.  802.219. If a technical 
malfunction or other issue prevents access to the Board's case 
management system for a protracted period, the Board by special order 
may provide appropriate relief pending restoration of electronic 
access.
    (e) Special rules for notices of appeal. (1) Except as otherwise 
provided in this section, a notice of appeal is considered to have been 
filed only as of the date it is received by the office of the Clerk of 
the Board.
    (2) A notice of appeal submitted to any other agency or subdivision 
of the Department of Labor or of the U.S. Government or any state 
government,

[[Page 1800]]

and subsequently received by the office of the Clerk of the Board, will 
be considered filed with the Clerk of the Board as of the date it was 
received by the other governmental unit if the Board finds in its 
discretion that it is in the interest of justice to do so.
    (3) If the notice of appeal is sent by mail or commercial carrier 
and the fixing of the date of delivery as the date of filing would 
result in a loss or impairment of appeal rights, it will be considered 
to have been filed as of the date of mailing or the date of delivery to 
the commercial carrier.
    (i) For notices sent by mail, the date appearing on the U.S. Postal 
Service postmark (when available and legible) will be prima facie 
evidence of the date of mailing. If there is no such postmark or it is 
not legible, other evidence such as, but not limited to, certified mail 
receipts, certificates of service, and affidavits, may be used to 
establish the mailing date.
    (ii) For notices sent by commercial carrier, the date of delivery 
to the carrier may be demonstrated by the carrier's receipt or tracking 
information.
    (4) If the notice of appeal is electronically filed through the 
Board's case management system, it is considered received by the office 
of the Clerk of the Board as of the date and time recorded by the 
system under Sec.  802.221(c).

0
6. Add Sec.  802.223 to subpart B to read as follows:


Sec.  802.223  April 11, 2021 Service requirements.

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

    Signed on this 14th day of December, 2020, in Washington, DC.
Eugene Scalia,
Secretary of Labor.
[FR Doc. 2020-28057 Filed 1-8-21; 8:45 am]
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