Rules of Practice and Procedure Before the Benefits Review Board, 8533-8537 [2024-01991]

Agencies

• DEPARTMENT OF LABOR
• Office of the Secretary

[Federal Register Volume 89, Number 27 (Thursday, February 8, 2024)]
[Rules and Regulations]
[Pages 8533-8537]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-01991]


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DEPARTMENT OF LABOR

Office of the Secretary

20 CFR Part 802

RIN 1290-AA35


Rules of Practice and Procedure Before the Benefits Review Board

AGENCY: Office of the Secretary, Department of Labor.

ACTION: Final rule.

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SUMMARY: This action finalizes the Department of Labor's (DOL or 
Department) proposal, published on January 11, 2021, to require 
electronic filing (e-filing) in proceedings before the Benefits Review 
Board (BRB). On January 11, 2021, the Department published a direct 
final rule (DFR) and companion proposed rule to require e-filing and 
make acceptance of electronic service (e-service) automatic by 
attorneys and lay representatives representing parties in proceedings 
before the BRB, and to provide an option for self-represented parties 
to utilize these electronic capabilities. The rule provided an 
exception to the requirements for good cause shown. The Department 
invited written comments from the public for 30 days on the proposed 
rule. The Department received significant adverse public comments from 
stakeholders on the similar direct final rule for the Office of 
Administrative Law Judges (OALJ). As many of these stakeholders also 
practice before the BRB, the BRB withdrew the direct final rule on 
February 25, 2021. The Department has reviewed the comments received in 
response to the proposal and is now implementing the rule as described 
in the proposed rule of January 11, 2021, with appropriate exceptions 
for good cause shown and self-represented parties.

DATES: This final rule is effective on March 11, 2024.

FOR FURTHER INFORMATION CONTACT: Mr. Thomas Shepherd, Clerk of the 
Appellate Boards, at 202-693-6319.

SUPPLEMENTARY INFORMATION: This preamble is divided into three 
sections: Section I provides an overview of this rulemaking and 
describes its procedural background; Section II provides a summary of 
the public comments received; and Section III covers the administrative 
requirements for this rulemaking.

I. Background

A. Overview

    This action is a final rule to finalize the corresponding notice of 
proposed rulemaking (NPRM) published in the January 11, 2021, issue of 
the Federal Register. The e-filing amendments are revising Part 802 in 
order to require e-filing and allow for automatic e-service.
    A general overview of the legal framework, statements explaining 
the necessity of this e-filing and e-service rule, and further 
background on the rulemaking is available in the Department's NPRM, as 
published in the Federal Register on January 11, 2021, and will not be 
restated in full herein.
    In brief, this final rule requires 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 
BRB for good cause; gives 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; and provides 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.

B. Procedural History

    On January 11, 2021, the Department initially published the e-
filing amendments as a DFR without a prior proposal because the 
Department viewed such amendments as noncontroversial at that time and 
anticipated no adverse comment. The Department also published a 
companion NPRM in the ``Proposed Rules'' section of the January 11, 
2021, issue to expedite notice-and-comment rulemaking in case 
significant adverse comments were received from stakeholders. A 
significant adverse comment for the purposes of these notices 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. The 
proposed and direct final rules were substantively identical, and their 
respective comment periods ran concurrently. The Department is treating 
comments received on the

[[Page 8534]]

companion direct final rule as comments regarding the proposed rule, 
and vice versa.
    On January 11, 2021, OALJ also published e-filing amendments as a 
DFR, as well as a companion NPRM. Like the BRB rule, the OALJ rule 
would require e-filing for represented persons unless good cause is 
shown that justifies an alternative form of filing, and self-
represented persons would have the option to e-file or file papers 
conventionally. The OALJ rule would deem any person required to e-file, 
or who opts to e-file, as having consented to e-service through the 
eFile/eServe system.
    On February 25, 2021, the Department withdrew the January 11, 2021, 
DFR due to the receipt of significant adverse comment on a similar 
rulemaking by the OALJ. Accordingly, on March 17, 2021, the Department 
re-opened the comment period on the January 11, 2021, NPRM for 15 days 
in order to give the public an additional opportunity to voice concerns 
regarding the proposed e-filing rule. The Department also scheduled 
listening sessions in order to better understand and address concerns 
from practitioners and the regulated community.

II. Public Comments Received

    The Department invited written comment in its January 11, 2021, DFR 
and concurrently published NPRM. The proposed and direct final rules 
were substantively identical, and their comment periods ran 
concurrently from January 11, 2021, to February 10, 2021. On March 17, 
2021, the NPRM comment period was reopened for fifteen days. Comments 
were submitted electronically at https://www.regulations.gov/ using 
docket number DOL-2020-0013. The Department requested comments on all 
issues related to the rule, including economic or other regulatory 
impacts of the rule on the regulated community.
    In issuing this final action, the Department considered comments 
received on the DFR and NPRM during both the initial and subsequent 
comment periods. The Department also considered comments received on 
the similar OALJ rulemaking because commenters noted that they also 
practiced before the BRB. Comments to the OALJ rulemaking were 
submitted electronically at https://www.regulations.gov/ using docket 
number DOL-2020-0015.
    The Department received thirty-seven unique comments collectively 
on its BRB and OALJ e-filing rules. Of the thirty-seven comments 
received, twelve were determined to be out of scope because they were 
comments exclusively on the technical aspects of the Electronic Filing 
System and did not address the substance of the e-filing rule, 
addressed issues wholly unrelated to this rulemaking, or were general 
statements. Of the remaining twenty-five comments, one commenter--who 
commented on the BRB's NPRM--supported the e-filing rule and twenty-
four raised concerns that are discussed below.

A. Comment Supporting the E-Filing Rule

    The BRB received one comment in support of the rule's e-filing 
requirement and automation of e-service, and the rule's extension of 
the e-filing and e-service options to self-represented parties. The 
commenter attested to the ``overall greater convenience for both 
parties to use e-filing and e-service, as well as the costs saved by 
going paperless.'' They observed that ``it is in the public interest 
for the DOL to create a streamlined procedure'' because ``[a] disarray 
of inconsistent filing methods is not only burdensome to those 
processing at DOL, but also to those who would like to track their 
submitted applications.'' Additionally, the commenter cited to both 
Forbes and the New York City Bar Environmental Law Committee in 
addressing the range of significant environmental benefits that e-
filing provides.
    This comment reflects the Department's belief that e-filing will 
benefit all participants in BRB matters. The greater utilization of e-
filing and e-service will reduce case processing times by eliminating 
the timeframes required to allow for the delivery of traditional 
mailings. These time savings will allow the BRB to more efficiently 
process appeals without any sacrifice to the quality of work. It also 
will greatly reduce mailing and copying costs for both the BRB and the 
parties. The Department agrees that the cost, convenience, and 
efficiency benefits merit this final rule.

B. Comments Raising Concerns About the E-Filing Rule

    Nearly all commenters raising concerns about the rule identified 
themselves as practitioners before the BRB or OALJ. These commenters 
predominately objected to the rule's e-filing mandate, but many 
expressed support for the Department's efforts to move to e-filing and 
e-service. Three opposing commenters addressed concerns with other rule 
provisions.
1. Comments Regarding the Portion of the Rule That Makes E-Filing 
Mandatory
    Twenty-three commenters to the OALJ's NPRM recommended that the 
rule's e-filing mandate be delayed or abandoned. Several commenters 
expressed general support for the efficiency and modernization that e-
filing provides. However, commenters expressed frustration with the BRB 
and OALJ e-filing systems, which they found to be time-consuming, 
resource intensive, and difficult to navigate. Accordingly, commenters 
asked that the e-filing mandate be abandoned or delayed to allow for 
the eFile/eServe system's redesign.
    Three of these commenters encouraged the continued use of paper 
filings to accommodate unreliable technology. One practitioner 
identified the particular technological barriers faced by black lung 
practitioners, who ``likely have some of the worst internet service in 
the United States'' and ``[o]ften experience the loss of internet 
access.'' Another noted, ``[i]f internet service is disrupted, we 
currently have backup: `snail mail', wherein dropping a document in the 
mail constitutes proper service.'' Practitioners also expressed concern 
that self-represented applicants may be disadvantaged if they cannot 
use the e-filing system successfully.
    The Department has acknowledged the commenters' concerns with the 
e-filing system and has sought to improve the system's user experience. 
All twenty-three comments requesting that the rule be delayed due to 
concerns about the eFile/eServe system were made on the OALJ's NPRM 
during the initial comment period that closed on February 10, 2021. 
After receiving these comments, the Department held listening sessions 
for users to provide feedback on the e-filing system. The Department 
relied on the information obtained at these listening sessions to 
improve the eFile/eServe system. The Department is confident it has 
sufficiently addressed the issues identified and that the e-filing 
mandate should therefore be implemented without additional delay.
    Additionally, the final rule sufficiently responds to the 
commenters' technology concerns. First, Section 802.222(d)(2) allows 
attorneys and lay representatives to request an exemption from the e-
filing mandate for good cause. Individuals who anticipate technological 
barriers to e-filing may use this provision to request an exemption. 
Second, Section 802.222(d)(3) allows self-represented parties to file 
in either electronic or

[[Page 8535]]

nonelectronic format. Third, Section 802.222(d)(5) provides remedies 
for parties who experience technical failures in the e-filing, e-
service process. Overall, the BRB framework is largely consistent with 
Federal district court and U.S. Courts of Appeals practice, which 
generally mandates e-filings for attorneys unless an exemption is 
granted and provides self-represented parties the option of filing 
pleadings in paper form.
2. Comments Regarding Portions of the Rule Addressing Filing Deadlines, 
Public Access, and Service
    One commenter asked that the rule's computations of time be changed 
to allow e-filings to be considered timely if they are filed by 11:59 
p.m. based on the time zone in which the filer is located. Section 
802.221(c) requires that filing deadlines be computed using the Eastern 
Time zone. The Board chose the Eastern Time zone based on the fact that 
Washington, DC is located within it. This approach mirrors the approach 
of the Federal courts. See, e.g., Fed. R. App. P. 26(a)(4); Fed. R. 
Civ. P.6(a)(4).
    The Department has considered this request and finds that 
maintaining the rulemaking's filing deadline computation better 
effectuates its goal of efficiently processing case appeals. Computing 
filing deadlines by the BRB's time zone allows the BRB to expeditiously 
determine whether a filing is timely. In contrast, a filing deadline 
based on the filer's location creates an administrative burden because 
it requires an individualized assessment of the filer's location, which 
may not be readily apparent in firms with multiple office locations.
    One commenter asserted that requiring separate e-service was 
inefficient and requested that the eFile/eServe system be changed to 
make service on all parties automatic. Section 802.223(b)(2)(B) allows 
for e-service to be completed by sending a filing to a user registered 
with the Department's eFile/eServe system. The eFile/eServe system is 
designed to function similarly to the Case Management/Electronic Case 
Files (CM/ECF) system used by the Federal courts. This approach allows 
for automatic e-service, with minimal exceptions for exempt individuals 
and documents containing sensitive information that must be served 
through an alternative, secure method. Accordingly, the Department has 
taken measures to establish automatic service through the eFile/eServe 
system.
    One commenter expressed concern that e-filing would impede public 
access to BRB and OALJ case files because the rule does not allow for 
general access by non-parties. The Department believes that public 
policy concerns merit the level of public access provided, which 
balances the public's right to know about proceedings and the parties' 
privacy interests. Here, broad public access is inappropriate because 
of the significant personal information contained within BRB and OALJ 
case files. Black lung and longshore claims also often contain 
extensive information of a private nature, where general public 
interest is limited.
    Restricting general access by non-parties is consistent with the 
approach of the Federal courts in similar cases. Fed. R. Civ. P. 5.2(c) 
limits remote public access to electronic files in Social Security and 
immigration cases due to the significant amount of personal information 
these files contain. Rule 5.2(c) of the Federal Rules of Civil 
Procedure does not completely bar public access because it permits non-
parties to obtain the full case file at the courthouse. Likewise, this 
rulemaking limits non-parties' remote access to electronic files, while 
allowing access through an alternative means. The Freedom of 
Information Act (FOIA) governs public access to agency rules, opinions, 
orders, records, and proceedings. See 5 U.S.C. 552; 29 CFR 70.1 through 
70.54. Under FOIA, non-parties may submit a request to obtain BRB and 
OALJ case files subject to the applicable FOIA exceptions. Accordingly, 
this final rule's restrictions on non-parties' access to electronic 
records in agency proceedings are consistent with FOIA's public access 
provisions, the Federal court process, and the policy considerations 
inherent in Fed. R. Civ. P. 5.2(c).

C. Out of Scope Comments

    Twelve comments, seven of which were made on the BRB's NPRM, were 
beyond the scope of this action. Five comments related only to specific 
concerns about using the Electronic Filing System, rather than the 
rule's specific e-filing mandate or other procedural amendments. To the 
extent that these comments refer to the e-filing mandate, these 
comments do not alter the Department's conclusion for the reasons noted 
above. One of these five comments was made on the BRB's NPRM. The 
commenter noted having difficulty finding an appeal in the eFile/eServe 
system because it failed to list cases by the claimant's first or last 
name, and instead listed cases by the BRB case number. In response to 
this comment, the Department has improved the system to allow a user to 
search for a case by a claimant's name, among other parameters. Another 
comment, also made on the BRB's NPRM, appears to pose questions to 
employers about their ``coronavirus response plan,'' and is therefore 
out of scope. Finally, six comments--five of which were made on the 
BRB's NPRM--made general and vague statements that did not address 
specific provisions of the proposed rules, or about e-filing or e-
service, and were therefore also out of scope.

D. Removal of Delayed Applicability Date

    This final rule will take effect 30 days after the date it is 
published in the Federal Register. Although this is a rule of agency 
procedure, the Department is using the minimum period provided under 
Section 553(d) of the APA for substantive rules that do not meet a 
statutory exception. See 5 U.S.C. 553(d)(3). The Department is removing 
the 45-day delayed applicability date included in the initial DFR and 
NPRM. See Rules of Practice and Procedure for the Benefits Review 
Board, 86 FR 1858, 1861, 1862 (proposed Jan. 11, 2021). The 30-day 
period between publication and the effective date of this final rule is 
reasonable and practical because the eFile/eServe system is currently 
operational. Accordingly, the Department no longer needs additional 
time to update communications about e-filing or to allow parties time 
to adjust to the e-filing system given the lengthy period since the 
public has been on notice of this proposed rule. The Department 
determines that both it and the public are prepared to adhere to the e-
filing mandate within 30 days of this rule's publication, obviating the 
need for a delayed applicability date. Thus, the rule clarifies that 
attorneys and lay representatives must be registered with the BRB's 
eFile/eServe system--and file all pleadings, exhibits, and other 
documents through this system--by the effective date of the final rule.

III. 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,

[[Page 8536]]

reducing costs, harmonizing rules, and promoting flexibility.
    This final rule has been drafted and reviewed in accordance with 
Executive Order 12866, as amended by Executive Order 14094. The Office 
of Information and Regulatory Affairs of the Office of Management and 
Budget (OMB) determined that this 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 $200 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 legal or policy issues 
for which centralized review would meaningfully further 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 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) and (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 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 their attorney or lay 
representative) and date of signature. Pleadings filed by an attorney, 
lay representative or self-represented party via the Board's case

[[Page 8537]]

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 March 11, 2024, attorneys and lay 
representatives must be registered with 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, 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   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 in Washington, DC.
Julie A. Su,
Acting Secretary of Labor.
[FR Doc. 2024-01991 Filed 2-7-24; 8:45 am]
BILLING CODE 4510-FN-P