Rule2024-01991
Rules of Practice and Procedure Before the Benefits Review Board
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
February 8, 2024
Effective
March 11, 2024
Issuing agencies
Labor Department
Abstract
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.
Full Text
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<title>Federal Register, Volume 89 Issue 27 (Thursday, February 8, 2024)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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 <a href="https://www.regulations.gov/">https://www.regulations.gov/</a> 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 <a href="https://www.regulations.gov/">https://www.regulations.gov/</a> 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
</pre></body>
</html>Indexed from Federal Register on February 8, 2024.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.