Rules of Practice and Procedure, 1768-1771 [2020-28059]

Agencies

• DEPARTMENT OF LABOR
• Employees' Compensation Appeals Board

[Federal Register Volume 86, Number 6 (Monday, January 11, 2021)]
[Rules and Regulations]
[Pages 1768-1771]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-28059]


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DEPARTMENT OF LABOR

Employees' Compensation Appeals Board

20 CFR Part 501

RIN 1290-AA37


Rules of Practice and Procedure

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

ACTION: Direct Final Rule.

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

DATES: This direct final rule will become effective February 25, 2021 
without further action unless the Department receives significant 
adverse comment to this rule by 11:59 p.m. 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 send comments, identified by Regulatory 
Identification Number (RIN) 1290-AA37, only by the following method: 
Electronic Comments. Submit comments through the Federal eRulemaking 
Portal https://www.regulations.gov. To locate the direct final rule, use 
docket number DOL-2020-0017 or key words such as ``Administrative 
practice and procedure'' or ``Workers' compensation.'' Follow the 
instructions for submitting comments. All comments must be received by 
11:59 p.m. on the date indicated for consideration in this rulemaking. 
Instructions: All submissions received must include the agency name and 
docket number or Regulatory Information Number (RIN) for this 
rulemaking. All comments received will generally be posted without 
change to https://www.regulations.gov, including any personal 
information provided. If you need assistance to review the comments or 
the 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. Individuals with hearing or speech 
impairments may access the telephone number above by TTY by calling the 
toll-free Federal Information Relay Service at (800) 877-8339.

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

SUPPLEMENTARY INFORMATION: This preamble is divided into four sections: 
Section I explains the process of issuing a proposed rule concurrently 
with a companion direct final rule; Section II provides general 
background information on the development of the 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.

[[Page 1769]]

I. Proposed Rule Published Concurrently With Companion Direct Final 
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 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 gives self-
represented (pro se) parties the option to file and serve documents 
through the electronic case management system or via conventional 
methods. It also allows the Board to hear oral argument by 
videoconference under the same discretionary criteria outlined in its 
2008 proposal. These changes to the Board's procedures and practices 
should not be controversial and are consistent with its statements in 
its 2008 proposal. 73 FR 35103 (``[T]he Board has anticipated that 
technological advances may, in the future, allow the filing, notice, 
service and presentation of documents and argument by electronic 
means.''). The 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 Department is publishing concurrently with this direct final 
rule an identical notice of proposed rulemaking elsewhere in this issue 
of the Federal Register. The companion proposed rule provides the 
procedural framework to finalize the rule in the event that any 
significant adverse comment is received. 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 will also be considered as comments regarding the companion 
proposed rule. For purposes of this rulemaking, a significant adverse 
comment is one that explains (1) why the rule is inappropriate, 
including challenges to the rule's underlying premise or approach; or 
(2) why the direct final rule will be ineffective or unacceptable 
without a change. In determining whether a significant adverse comment 
necessitates withdrawal of this direct final rule, the Department will 
consider whether the comment raises an issue serious enough to warrant 
a substantive response had it been submitted in a standard notice-and-
comment process. A comment recommending an addition to the rule will 
not be considered significant and adverse unless the comment explains 
how this direct final rule would be ineffective without the addition.
    If the Department receives any significant adverse comments during 
the comment period, the Department will withdraw the direct final rule 
and proceed in developing a final rule using the usual notice-and-
comment procedure. If the Department receives no significant adverse 
comments, the Department will publish a document withdrawing the 
proposed 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. All interested parties should comment 
at this time because the Department will not initiate an additional 
comment period on the proposed rule even if it withdraws the direct 
final rule.
    This rule is not an E.O. 13771 regulatory action because this rule 
has been determined by the Office of Information and Regulatory Affairs 
as not significant under E.O. 12866.
    Pursuant to the Congressional Review Act (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 Board is promulgating a rule that would make e-filing mandatory 
and e-service automatic for parties represented by attorneys and lay 
representatives. The Board's long-term goal is to have entirely 
electronic case files (e-case files), which would significantly benefit 
both the Board and the participants in Board appeals. All parties and 
representatives, as well as appropriate Board employees, would have 
access to all of the Board's case-related documents through the Board's 
case management system at any time and place, as long as they have 
access to the internet. In addition, digitally filed and served 
documents would allow the Board to leverage its case management system 
to more efficiently process incoming documents and reduce the time it 
takes to adjudicate appeals.
    The Board's case management system is a consolidated web-based case 
tracking system that was deployed in FY2011 to replace individual 
legacy applications and streamline business processes specific to each 
of the Department's three Adjudicatory Boards: The Administrative 
Review Board (created in 1996) is the adjudicatory Board that issues 
final agency decisions for the Secretary of Labor in cases arising 
under a variety of worker protection laws; the Benefits Review Board 
(created in 1972) reviews appeals of administrative law judges' 
decisions arising primarily under the Black Lung Benefits Act, the 
Longshore and Harbor Workers' Compensation Act and its extensions; and 
the Employees' Compensation Appeals Board (ECAB) (created in 1946) 
hears appeals taken from determinations and awards under the Federal 
Employees' Compensation Act by the Department's Office of Workers' 
Compensation Programs (OWCP) (whose predecessor agency was the Bureau 
of Federal Employees' Compensation as described in 20 CFR 1.6) with 
respect to claims of Federal employees injured in performance of duty.
    The case management system has provided a broad range of 
capabilities to the staff of the Boards for inputting, processing, 
tracking, managing, and reporting specific details on thousands of 
cases since the initial implementation. In FY2013, the system was 
enhanced to provide access to the general public. Specifically, users 
have the ability to check their case status, electronically file 
motions and briefs, and receive Board issuances electronically. 
Currently, over 1,400 individuals are registered users of the system.
    At present, there are two methods for placing the parties' 
pleadings into an electronic format for inclusion on the Board's case 
management system: Pleadings can be filed in an electronic format; or 
pleadings can be digitally imaged after they have been filed in paper 
form. If e-filing and e-service remains optional, it is unlikely that 
the Board will achieve the goal of completely electronic case files. 
If, however, all pleadings submitted by attorneys and lay 
representatives are e-filed, imaging the remaining paper pleadings from 
self-represented parties (pro se parties) would be more manageable and 
allow greater efficiencies in the processing of appeals. In addition, 
utilization of e-filing and e-service will reduce case processing times 
by eliminating, in most cases, the timeframes required to allow for the 
delivery of traditional mailings. These

[[Page 1770]]

time savings will allow the Board to more efficiently process appeals 
without any sacrifice of the quality of work and will reduce mailing 
costs for the Board and private parties.
    Although the law requires Federal agencies to provide information 
and services via the internet, it also mandates that agencies consider 
the impact on persons without access to the internet and, to the extent 
practicable, ensure that the availability of government services has 
not been diminished for such persons. 44 U.S.C. 3501. Accordingly, the 
Board will make e-filing and e-service optional for self-represented 
parties. There is no known legal restriction to a requirement that 
attorneys and lay representatives use e-filing and make e-service 
automatic, nor are there undue costs or difficulties imposed, 
particularly because a party may obtain an exemption for good cause 
shown. The Board notes that in this regard, e-filing is generally 
mandatory for attorneys in the Federal court system. See 76 FR 56107 
(Sept. 12, 2011) (Social Security Administration final rule announcing 
that it will require claimant representatives to use SSA's electronic 
services as they become available on matters for which the 
representatives request direct fee payment); 76 FR 63537 (Oct. 13, 
2011) (U.S. Merit Systems Protection Board pilot program requiring 
agencies and attorneys representing appellants to file pleadings 
electronically for appeals in the Washington Regional Office and Denver 
Field Office); 84 FR 14554 (Apr. 10, 2019) (Occupational Safety and 
Health Review Commission final rule adopting mandatory electronic 
filing and service); 84 FR 37081 (July 31, 2019) (U.S. Patent and 
Trademark Office final rule amending its Rules of Practice in Trademark 
Cases and Rules of Practice in Filings to mandate electronic filing of 
trademark applications and submissions associated with trademark 
applications and registrations). Individuals who are e-filing appeals 
to the Board need access to a computer with internet connectivity and 
an email account.

III. Section-by Section Analysis of Rule

Section 501.3 Notice of Appeal

    Current Sec.  501.3(a) defines who may ``file for review'' from a 
final decision of the Director. Revised Sec.  501.3(a) changes the 
phrase ``file for review'' to ``file an appeal'' to reflect the 
terminology contained in this section.
    Current Sec.  501.3(b) defines the ``place of filing'' as with the 
Clerk of the Appellate Boards at a specific mailing address. Revised 
Sec.  501.3(b) defines ``how to file'' appeals and all post-appeal 
pleadings and motions, requiring e-filing by attorneys and lay 
representatives beginning 45 days after the effective date of the rule 
and allowing for e-filing by self-represented appellants. This 
requirement applies only to those documents filed 45 days after the 
effective date or later. This time period between the effective date, 
when litigants can be certain that the direct final rule will not be 
withdrawn, and the applicability date, on which e-filing becomes 
mandatory, allows those who were previously filing and serving 
documents by mail to adjust to electronic filing.
    Current Sec.  501.3(c)(2) contains requirements for the content of 
an appeal to the Board regarding the name and contact information for 
an appellant or a deceased employee who is the subject of an appeal. In 
addition it requires a signed authorization identifying the name and 
contact information of his or her representative, if applicable. 
Revised Sec.  501.3(c)(2) requires the identifying contact information 
to include an email address.
    Current Sec.  501.3(c)(6) requires an appellant to sign the notice 
of appeal. Revised Sec.  501.3(c)(6) allows for the use of an 
electronic signature when an appeal is electronically filed by a 
registered user.
    Current Sec.  501.3(f) sets forth how the date of filing an appeal 
is determined by the Board for purposes of timeliness of an appeal. 
Revised Sec.  501.3(f) changes the word ``Clerk'' to ``Clerk of the 
Appellate Boards'' to reflect the terminology contained in this 
section.
    Current Sec.  501.3(f)(1) sets forth how timeliness of an appeal is 
determined and provides that a notice of appeal is deemed to be 
``received when received by the Clerk.'' Revised Sec.  501.3(f)(1) 
includes a provision for the timeliness of an appeal when e-filed. It 
also contains technical amendments to change the terminology ``United 
States Mail'' to ``United States Postal Service''; ``Clerk'' to ``Clerk 
of the Appellate Boards''; and ``received when received'' to ``filed 
when received.'' Paragraph (f)(2) is renumbered to (f)(3), and new 
paragraph (f)(2) clarifies that e-filed documents are deemed filed as 
of the date and time the Board's electronic case management system 
records its receipt and must be filed by 11:59:59 p.m. Eastern Time on 
the due date.
    Current Sec.  501.3(h) describes when a notice of appeal will be 
considered incomplete. Revised Sec.  501.3(h) changes the terminology 
from ``Clerk'' to ``Clerk of the Appellate Boards.''
    Section 501.4 Case record; inspection; submission of pleadings and 
motions.
    Current Sec.  501.4(e) requires all filings with the Board to 
include an original and two copies. This rule removes that paragraph 
because paper copies are not necessary when e-filing, and the Board no 
longer needs multiple paper copies from self-represented parties or 
those who are granted an exemption from e-filing.

Section 501.5 Oral Argument

    Current Sec.  501.5 provides that oral argument is held only in 
Washington, DC. The revised section allows the Board, in its 
discretion, to hold oral argument by videoconference. It also provides 
that the notice to the parties will specify whether the oral argument 
is to be held in person or by videoconference. This provides the Board 
with greater flexibility and efficiency. Oral arguments (including 
those conducted by videoconference) will not be recorded because ECAB 
decisions are not subject to further review by OWCP or the courts.

IV. Administrative Requirements of the Rulemaking

Regulatory Flexibility Act of 1980

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

Paperwork Reduction Act (PRA)

    The Department has determined that this 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 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,

[[Page 1771]]

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 not have ``tribal 
implications.'' The rule does not ``have substantial direct effects on 
one or more Indian tribes, on the relationship between the Federal 
government and Indian tribes, or on the distribution of power and 
responsibilities between the Federal government and Indian tribes.''

Executive Order 13211, Energy Supply, Distribution, or Use

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

List of Subjects in 20 CFR Part 501

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

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

PART 501 [AMENDED]

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

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


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


Sec.  501.3  Notice of Appeal.

    (a) Who may file. Any person adversely affected by a final decision 
of the Director, or his or her authorized Representative, may file an 
appeal of such decision to the Board.
    (b) How to file. (1) Beginning on April 12, 2021, attorneys and lay 
representatives must file appeals with the Board electronically through 
the Board's case management system, along with all post-appeal 
pleadings and motions as set forth in paragraphs (d) and (h) of this 
section and Sec. Sec.  501.4(b) through (d), 501.5(b) and (g); 501.7 
(a), (e), and (f), and 501.9(b), (c), and (e).
    (2) Attorneys and lay representatives may request an exemption 
(pursuant to Sec.  501.4(d)) for good cause shown. Such a request must 
include a detailed explanation why e-filing or acceptance of e-service 
should not be required.
    (3) Self-represented parties may either file appeals electronically 
through the Board's case management system or file appeals by mail or 
other method of delivery to the Clerk of the Appellate Boards at 200 
Constitution Avenue NW, Washington, DC 20210.
    (c) * * *
    (2) Full name, address, email address, and telephone number of the 
Appellant and the full name of any deceased employee on whose behalf an 
appeal is taken. In addition, the Appellant must provide a signed 
authorization identifying the full name, address, email address, and 
telephone number of his or her representative, if applicable.
* * * * *
    (6) Signature: An Appellant must sign the notice of appeal. A 
filing made electronically through the Board's case management system 
by a registered user containing the Appellant's name in an appropriate 
signature block constitutes the Appellant's signature.
* * * * *
    (f) Date of filing. A notice of appeal complying with this 
paragraph (c) is considered to have been filed only if received by the 
Clerk of the Appellate Boards within the period specified under 
paragraph (e) of this section, except as otherwise provided in this 
subsection:
    (1) If the notice of appeal is sent via the U.S. Postal Service or 
commercial carrier and use of the date of delivery as the date of 
filing would result in a loss of appeal rights, the appeal will be 
considered to have been filed as of the date of the postmark or other 
carriers' date markings. The date appearing on the U.S. Postal Service 
postmark or other carriers' date markings (when available and legible) 
shall be prima facie evidence of the date of mailing. If there is no 
such postmark or date marking, or it is illegible, then other evidence 
including, but not limited to, certified mail receipts, certificate of 
service, and affidavits, may be used to establish the mailing date. If 
a notice of appeal is delivered or sent by means other than the U.S. 
Postal Service or commercial carrier, including e-filing, personal 
delivery, or fax, the notice is deemed to be filed when received by the 
Clerk of the Appellate Boards.
    (2) For electronic filings made through the Board's case management 
system, a document is deemed filed as of the date and time the Board's 
electronic case management system records its receipt, even if 
transmitted after the close of business. To be considered timely, an e-
filed document or pleading must be filed by 11:59:59 p.m. Eastern Time 
on the due date.
    (3) In computing the date of filing, the 180-day time period for 
filing an appeal begins to run on the day following the date of the 
OWCP decision. The last day of the period so computed shall be 
included, unless it is a Saturday, Sunday or Federal holiday, in which 
event the period runs to the close of the next business day.
* * * * *
    (h) Incomplete notice of appeal. Any timely notice of appeal that 
does not contain the information specified in paragraph (c) of this 
section will be considered incomplete. On receipt by the Board, the 
Clerk of the Appellate Boards will inform Appellant of the deficiencies 
in the notice of appeal and specify a reasonable time to submit the 
requisite information. Such appeal will be dismissed unless Appellant 
provides the requisite information in the specified time.


Sec.  501.4  [Amended]

0
3. Amend Sec.  501.4 by removing paragraph (e).

0
4. Amend Sec.  501.5 by revising paragraphs (c) and (f) to read as 
follows:


Sec.  501.5  Oral argument.

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

    Signed on this 14th day of December 2020, in Washington, DC.
Eugene Scalia,
Secretary of Labor.
[FR Doc. 2020-28059 Filed 1-8-21; 8:45 am]
BILLING CODE 4510-31-P