[59 Federal Register 41874 (Monday, August 15, 1994)]
DEPARTMENT OF LABOR
Office of the Secretary of Labor
Employment and Training Administration
20 CFR 655
29 CFR Part 18 and 24
Amendment of Filing and Service Requirements in Proceedings Before the Office of Administrative Law Judges
AGENCY: Office of the Secretary, Labor.
ACTION Interim final rule; request for comments.
SUMMARY: Interim final rule amends regulations governing the filing and service of documents in proceedings before the Department of Labor's Office of Administrative Law Judges generally, and in one instance, the Regional Administrator's service of a notice of denial of temporary labor certification. The amendments modify regulations which heretofore required filing or service by mailgram or telegram, substituting therefore the option to file or serve those documents by facsimile (fax), telegram or other means normally assuring next day delivery. The amendments also provide guidelines for the filing and service of documents by facsimile, limiting such filings to instances when they are explicitly permitted by statute or regulation, or by the presiding administrative law judge . Finally, the amendments eliminate the routine filing of documents relating to discovery, limiting such filings to instances when there is a reason for their submission.
DATES:
Effective Date: This interim rule is effective September 14, 1994.
Comments: Comments on the interim rule shall be submitted by mail and must be received by October 14, 1994 to ensure consideration.
ADDRESSES: Send comments to John M. Vittone, Deputy Chief Administrative Law Judge, Room 4250, Office of Administrative Law Judges, 800 K Street, NW., Suite 400, Washington, DC 20001-8002.
FOR FURTHER INFORMATION CONTACT: John M. Vittone, Deputy Chief Administrative Law Judge, Office of Administrative Law Judges. Telephone: (202) 633-0341.
SUPPLEMENTARY INFORMATION:
Purpose of Amendments
These amendments are grounded in the notion that procedural regulations should reflect practical realities. In today's business world, when a document needs to be delivered quickly, overnight couriers and facsimile transmissions are extremely effective methods. Thus, in programs administered by the Department of Labor when speedy filing or service of a document is essential, the amendments permitting the use of facsimile or overnight couriers conform the regulations to modern business practice.
On the other hand, given the large number of cases docketed by the Office of Administrative Law Judges each year, the use of facsimile-although often convenient to parties-is not administratively practical for routine matters. The Department generally agrees with the Judicial Conference Guidelines for Filing by Facsimile Transmission, which are referenced by Rule 5 of the Federal Rules of Civil Procedure. See Malkin, Judicial Conference Guidelines For Filing By Facsimile Transmission , Court Administration Bulletin (Dec. 1991). The Judicial Conference concluded that "basic facsimile technology has not reached a level that would allow for routine filing by facsimile without placing an undue administrative and resource burden on the courts." Id . Practical concerns noted by the Judicial Conference included technical problems with facsimile transmissions, the cost of equipment and supplies, and the burden on administrative staff.
When filing or service is routine, regular mail usually is sufficient. Even when time is of the essence, an overnight courier normally provides an adequate means of filing a document quickly. Thus, these amendments limit the use of facsimile to file documents to those instances in which such a filing is explicitly permitted by statute or regulations ( see, e.g., 20 CFR 655.820(e), 655.1020(d); 29 CFR 506.630(e), 507.820(e), 508.1020(d)) or by the presiding administrative law judge. In designing the amendments to govern filings by facsimile, the Department has taken into consideration the practice of the federal courts ( see Fed. R. App. P. 25 and Fed. R. Civ. P. 5), the rules of other federal agencies ( see, e.g., 29 CFR Part 102.114 (NLRB); 29 CFR 2200.9(f) (OSHA); 34 CFR Parts 76, 81, 86, 218, 222, 300, 361, 581 (DOE); 49 CFR 1162.2(e)(3) (ICC)), the rules of assorted state courts ( see, e.g., Ark. Code § 16-20-109; Cal Rules of Court R 2010, 2005, 2009; La R.S. 13:850; Tenn Code Ann. § 16-3-408) and various legal commentary ( see, e.g., Malkin, Judicial Conference Guidelines For Filing By Facsimile Transmission , Court Administration Bulletin (Dec. 1991); Koenig, Courts in the Fax Lane: The Use of Facsimile Technology by State Courts , 14 State Court Journal 13 (Winter 1991); Study Shows Limited Fax Use By Majority of State Courts , The National L.J., Oct. 8, 1990, at 17; Note, Telefacsimile Documents: A Survey of Uses in the Legal Setting , 36 The Wayne L. Rev. 1361 (1990)).
Finally, the amendments include elimination of routine filing of discovery documents. As a practical matter, such documents are generally not needed for the administrative record unless a party submits them in support of a motion ( e.g. a motion to compel attendance at a deposition) or the document is being submitted as evidence. The present system of routinely filing copies of such documents with the presiding administrative law judge only results in an administrative record cluttered with unneeded papers.
Rules of Special Application
These amendments do not purport to cover all rules of special application governing the conduct of hearings before the Office of Administrative Law Judges under specific Department of Labor programs. At least some rules of special application contain service and filing requirements that are inconsistent with these amendments. For example, the Office of Federal Contract Compliance Programs' rules at 41 CFR 60-30.4 (a) and (b) require the filing of all litigation documents with the Office of Administrative Law Judges, including documents relating to discovery, and specify that parties shall serve and file litigation documents by personal delivery or mail. Rules of special application control to the extent that the general rules of practice and procedure found in 29 CFR Part 18 are inconsistent. See 29 CFR 18.1(a).
Technical Comments
Most of the amendments simply replace a telegram requirement with less restrictive language. Less obvious changes, however, are discussed below.
The amendment to 20 CFR 655.212 deletes "by telegram." Not only was this phrase unnecessary, it was also inappropriate for several sections such as 655.211, which do not set time frames or other procedures for requesting a review. The amendment to 20 CFR 655.212 also corrects the spelling of "countervailing."
The new paragraph (f) to 29 CFR 18.3 governs filing or service by facsimile. It permits such a filing when explicitly permitted by statute or regulation or when directed or permitted by the
[59 Fed. Reg. 41875]
presiding administrative law judge. The presiding judge's discretion to direct or permit a filing by facsimile permits flexibility in application, although it is contemplated that filing by facsimile generally will be limited to emergency situations or other compelling circumstances. Nevertheless, litigants should note that permission to file by facsimile must be obtained, and those who choose to file by facsimile without permission do so at the risk that the filing will not be recognized.
Subparagraph (f)(4) requires the use of a cover sheet identifying the sender. This requirement reflects fax etiquette, but more importantly, it is helpful if the transmission is bad.
Subparagraph (f)(5) governs the submission of original documents. Although many fax rules contemplate having the original document sent within a few days following a fax transmission, the Department believes that this approach only doubles the amount of paper that must be processed. Thus, this rule requires submission of the original only when so ordered by the presiding administrative law judge, in the event of an original signature requirement, or in disputes over the accuracy of the transmission or the authenticity of the document. The ten day requirement for filing a required original signature conforms the rule to the new attestation regulations. See, e.g., 20 CFR 655.1020.
Subparagraph (f)(6) limits the length of filings by facsimile, although the presiding judge has the discretion to permit a longer filing. In addition, length is not regulated when it is subject to a requirement over which the transmitting party has no control, such as a requirement to file a complaint or determination letter. Long documents hold up fax machines, use government paper (not an inconsequential consideration for an agency that regularly dockets 9,000 cases a year), and extend wear and tear to the mechanical parts of the machine.
Subparagraph (f)(7) indicates that filings by facsimile should normally be done during regular business hours. Fax machines are not monitored at night. This paragraph, however, is directory rather than mandatory, since a blanket prohibition on filing during nonbusiness hours would defeat much of the utility of facsimile machines.
In Prince v. Poulas , 876 F.2d 30 (5th Cir. 1989), the Fifth Circuit held that an overnight courier service is not a public authority, and therefore not a form of "mail" for purposes of Rule 25 of the Federal Rules of Appellate Procedure. The experience of the Office of Administrative Law Judges, however, has been that overnight courier services are generally reliable and do not present some of the administrative and legal problems presented by filing by facsimile. Thus, paragraph (g) has been added to Part 18 of Title 29 to designate use of courier service as the equivalent of regular mail for purposes of Part 18.
Paragraph (d) is being added to section 18.4 to govern the time a filing or service by facsimile s effective. Using the time printed by the receiving fax machine as the date stamp lessens the need for monitoring of the fax machine and saves one step in the filing process.
Recently, amendments to 29 CFR Part 24 were published for notice and comment. See 59 Fed. Reg. 12506 (1994). Those proposed amendments include changes to 29 CFR 24.4 (which will be renumbered as section 24.5) tha permit the filing o a request for a hearing in an employee protection proceeding by "facsimile (fax), telegram, hand delivery, or next-day delivery service". 51 Fed. Reg. at 12509. Presently, section 24.4 only authorizes filing of the request by telegram. In addition, the proposed regulatory amendments require the party requesting a hearing to send a copy of the request to the opposing party and the Administrator by "facsimile (fax), telegram, hand delivery, or next-day delivery service". Id. Many other changes to Part 24 are also made in the March 16, 1994 Notice of proposed rulemaking. As a temporary measure, the instant interim final rule incorporates the proposed changes to section 24.4 that provide for alternatives to filing by telegram and that require same day notice of the request to the opposing party and the Administrator.
Publication as Interim Final Rule
These amendments are being issued as interim final rules because they are rules of agency procedure and practice for which notice and comment is not required, see 5 U.S.C. 553(b)(A).
Procedural Matters
This is not a significant regulatory action as defined by Executive Order 12866. The Agency Head has certified that this rule, if promulgated, will not have a significant economic impact upon a substantial number of small entities as defined in the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). The rule does not contain any information collection or recordkeeping requirements as defined in the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.).
List of Subjects
20 CFR Part 655
Administrative practice and procedure, Aliens, Employment, Migrant labor.
29 CFR Part 18
Administrative practice and procedure.
29 CFR Part 24
Employment, Environmental protection.
Accordingly, Part 655 of Title 20, and Part 18 and Part 24 of Title 29 of the Code of Federal Regulations are amended as follows:
TITLE 20-EMPLOYEES' BENEFITS
PART 655-TEMPORARY EMPLOYMENT OF ALIENS IN THE UNITED STATES
1. The authority citation for Part 655 continues to read:
Authority: Section 655.0 issued under 8 U.S.C. 1101(a)(15)(H)(i) and (ii), 1182(m) and (n), 1184, 1188, and 1288(c); 29 U.S.C. 49 et seq. ; 3(c)(1), Pub. L. 101-238, 103 Stat. 2099, 2103 (8 U.S.C. 1182 note); sec. 221(a), Pub. L. 101-649, 104 Stat. 4978, 5027 (8 U.S.C. 1184 note); and 8 CFR 214.2(h)(4)(i).
Section 665.00 issued under 8 U.S.C. 1101(a)(15)(h)(ii), 1184, and 1188; 29 U.S.C. 49 et seq. ; and 8 CFR 214.2(h)(4)(i).
Subparts A and C issued under 8 U.S.C. 1101(a)(15)(H)(ii)(b) and 1184; 29 U.S.C. 49 et seq. ; and 8 CFR 214.2(h)(4)(i).
Subpart B issued under 8 U.S.C. 1101(a)(15)(H)(ii)(a), 1184, and 1188; and 29 U.S.C. 49 et seq.
Subparts D and E issued under 8 U.S.C. 1101(a)(15)(H)(i)(a), 1182(m) and 1184, 29 U.S.C. 49 et seq. ; and sec. 3(c)(1), Pub. L. 101-238, 103 Stat. 2099, 2103 (8 U.S.C. 1182 note).
Subparts F and G issued under 8 U.S.C. 1184 and 1288(c); and 29 U.S.C. 49 et seq.
Subparts H and I issued under 8 U.S.C. 1101(a)(15)(H)(i)(b), 1182(n), and 1184; and 29 U.S.C. 49 et seq.
Subparts J and K issued under 29 U.S.C. 49 et seq. ; and sec. 221(a), Pub. L. 101-649, 104 Stat. 4978, 5027 (8 U.S.C. 1184 note).
2. In § 655.104, paragraph (c)(3) is revised to read as follows:
§ 655.104 -- Determinations based on acceptability of H-2A applications.
* * * * *
(c) * * *
(3) Offer the applicant an opportunity to request an expedited administrative review of or a de novo administrative hearing before an administrative law judge of the nonacceptance; the notice shall state that in order to obtain such a review or hearing, the employer, within seven calendar days of the date of the notice, shall file by facsimile
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(fax), telegram, or other means normally assuring next day delivery a written request to the Chief Administrative Law Judge of the Department of Labor (giving the address) and simultaneously serve a copy on the RA; the notice shall also state that the employer may submit any legal arguments which the employer believes will rebut the basis of the RA's action; and
* * * * *
3. Section 655.112 is amended by revising paragraphs (a)(2) and (b)(2) to read as follows:
§ 655.112 -- Administrative review and de novo hearing before an administrative law judge.
(a) * * *
(2) Decision. Within five working days after receipt of the case file the administrative law judge shall, on the basis of the written record and after due consideration of any written submissions submitted from the parties involved or amici curiae , either affirm, reverse, or modify the RA's denial by written decision. The decision of the administrative law judge shall specify the reasons for the action taken and shall be immediately provided to the employer, RA, the Director, and INS by means normally assuring next-day delivery. The administrative law judge's decision shall be the final decision of the Secretary and no further review shall be given to the temporary alien agricultural labor certification application or the temporary alien agricultural labor certification determination by any DOL official.
(b) * * *
(2) Decision. After a de novo hearing, the administrative law judge shall either affirm, reverse, or modify the RA's determination, and the administrative law judge's decision shall be provided immediately to the employer, RA, Director, and INS by means normally assuring next-day delivery. The administrative law judge's decision shall be the final decision of the Secretary, and no further review shall be given to the temporary alien agricultural labor certification application or the temporary alien agricultural labor certification determination by any DOL official.
4. In § 655.204, paragraph (d)(2) is revised to read as follows:
§ 655.204 -- Determinations based on temporary labor certification applications.
* * * * *
(d) * * *
(2) Offer the employer an opportunity to request an expedited administrative-judicial review of the denial by a Department of Labor (DOL) Hearing Officer. The notice shall state that in order to obtain such a review, the employer must, within five calendar days of the date of the notice, file by facsimile (fax), telegram, or other means normally assuring next day delivery a written request for such a review to the Chief Administrative Law Judge of the Department of Labor (giving the address) and simultaneously serve a copy on the Regional Administrator. The notice shall also state that the employer's request for review should contain any legal arguments which the employer believes will rebut the basis of the RA's denial of certification; and
* * * * *
5. In § 655.206, paragraph (c) is revised to read as follows:
§ 655.206 -- Determinations of U.S. worker availability and adverse effect on U.S. workers.
* * * * *
(c) If the RA denies the temporary labor certification in whole or part, the RA shall notify the employer in writing by means normally assuring next-day delivery. The notice shall contain all of the statements required in § 655.204(d). If a timely request is made for an administrative-judicial review by a DOL Hearing Officer, the procedures of § 655.212 shall be followed.
* * * * *
6. Section 655.212 is revised to read as follows:
§ 655.212 -- Administrative-judicial reviews.
(a) Whenever an employer has requested an administrative-judicial review of a denial of an application or a petition in accordance with §§ 655.204(d), 655.205(d), 655.206(c), or 655.211, the Chief Administrative Law Judge shall immediately assign a Hearing Officer to review the record for legal sufficiency, and the Regional Administrator shall send a certified copy of the case file to the Chief Administrative Law Judge by means normally assuring next day delivery. The Hearing Officer shall not have authority to remand the case and shall not receive additional evidence. Any countervailing evidence advanced after decision by the Regional Administrator shall be subject to provisions of 8 CFR 214.2(h)(3)(i).
(b) The Hearing Officer, within five working days after receipt of the case file shall, on the basis of the written record and due consideration of any written memorandums of law submitted, either affirm, reverse or modify the RA's denial by written decision. The decision of the Hearing Officer shall specify the reasons for the action taken and shall be immediately provided to the employer, RA, Administrator, and INS by means normally assuring next-day delivery. The Hearing Officer's decision shall be the final decision of the Department of Labor and no further review shall be given to the temporary labor certification determination by any Department of Labor official.
TITLE 29-LABOR
PART 18-RULES OF PRACTICE AND PROCEDURE FOR ADMINISTRATIVE HEARINGS BEFORE THE OFFICE OF ADMINISTRATIVE LAW JUDGES
7. The authority citation for Part 18 continues to read as follows:
Authority: 5 U.S.C. 301; 5 U.S.C. 551-553; 5 U.S.C. 581; E.O. 12778; 57 Fed. Reg. 7292.
8. Section 18.3 amended by revising paragraph (b) and adding paragraphs (f) and (g) to read as follows:
§ 18.3 -- Service and filing of documents.
* * * * *
(b) By parties. All documents shall be filed with the Office of Administrative Law Judges, except that notices of deposition, depositions, interrogatories, requests for documents, requests for admissions, and answers and responses thereto, shall not be so filed unless the presiding judge so orders, the document is being offered into evidence, the document is submitted in support of a motion or a response to a motion, filing is required by a specialized rule, or there is some other compelling reason for its submission. Service of all documents shall be made upon all parties, and when a party is represented by an attorney or other representative, service also shall be made upon the attorney or representative. Service of any document upon any party may be made by personal delivery or by mailing a copy to the last known address. The person serving the document shall certify to the manner and date of service.
* * * * *
(f) Filing and service by facsimile.
(1) Filing by a party; when permitted. Filings by a party may be made by facsimile (fax) when explicitly permitted by statute or regulation, or when directed or permitted by the administrative law judge assigned to the case. If prior permission to file by facsimile cannot be obtained because the presiding administrative law judge is not available, a party may file by facsimile and attach a statement of the circumstances requiring that the document be filed by facsimile rather than by regular mail. That statement does not ensure that the filing will be
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accepted, but will be considered by the presiding judge in determining whether the facsimile will be accepted nunc pro tunc as a filing.
(2) Service by facsimile; when permitted. Service upon a party by another party or by the administrative law judge may be made by facsimile (fax) when explicitly permitted by statute or regulation, or when the receiving party consents to service by facsimile.
(3) Service sheet and proof of service. Docments filed or served by facsimile (fax) shall include a service sheet which states the means by which filing and/or service was made. A facsimile transmission report generated by the sender's facsimile equipment and which indicates that the transmission was successful shall be presumed adequate proof of filing or service.
(4) Cover sheet. Filings or service by facsimile (fax) shall include a cover sheet that identifies the sender, the total number of pages transmitted, and the caption and docket number of the case, if known.
(5) Originals. Documents filed or served by facsimile (fax) shall be presumed to be accurate reproductions of the original document until proven otherwise. The party proferring the document shall retain the original in the event of a dispute over authenticity or the accuracy of the transmission. The original document need not be submitted unless so ordered by the presiding judge, or unless an original signature is required by statute or regulation. If an original signature is required to be filed, the date of the facsimile transmission shall govern the effective date of the filing provided that the document containing the original signature is filed within ten calendar days of the facsimile transmission.
(6) Length of document. Documents filed by facsimile (fax) should not exceed 12 pages including the cover sheet, the service sheet and all accompanying exhibits or appendices, except that this page limitation may be exceeded if prior permission is granted by the presiding judge or if the document's length cannot be conformed because of statutory or regulatory requirements.
(7) Hours for filing by facsimile. Filings by facsimile (fax) should normally be made between 8:00 am and 5:00 pm, local time at the receiving location.
(g) Filing and service by courier service. Documents transmitted by courier service shall be deemed transmitted by regular mail in proceedings before the Office of Administrative Law Judges.
9. Section 18.4 is amended by adding paragraph (d) to read as follows:
§ 18.4 -- Time computations.
* * * * *
(d) Filing or service by facsimile. Filing or service by facsimile (fax) is effective upon receipt of the entire document by the receiving facsimile machine. For purposes of filings by facsimile the time printed on the transmission by the facsimile equipment constitutes the date stamp of the Chief Docket Clerk.
10. Section 18.18 is amended by revising paragraph (a) as follows:
§ 18.18 -- Written interrogatories to parties.
(a) Any party may serve upon any other party written interrogatories to be answered in writing by the party served, or if the party served is a public or private corporation or a partnership or association or governmental agency, by any authorized officer or agent, who shall furnish such information as is available to the party. A copy of the interrogatories, answers, and all related pleadings shall be served on all parties to the proceeding. Copies of interrogatories and responses thereto shall not be filed with the Office of Administrative Law Judges unless the presiding judge so orders, the document is being offered into evidence, the document is submitted in support of a motion or a response to a motion, filing is required by a specialized rule, or there is some other compelling reason for its submission.
* * * * *
11. Section 18.19 is amended by revising paragraph (f) to read as follows:
§ 18.19 -- Production of documents and other evidence; entry upon land for inspection and other purposes; and physical and mental examination.
* * * * *
(f) A copy of each request for production and each written response shall be served on all parties, but shall not be filed with the Office of Administrative Law Judges unless the presiding judge so orders, the document is being offered into evidence, the document is submitted in support of a motion or a response to a motion, filing is required by a specialized rule, or there is some other compelling reason for its submission.
12. Section 18.20 is amended by revising paragraph (g) to read as follows:
§ 18.20 -- Admissions.
* * * * *
(g) A copy of each request for admission and each written response shall be served on all parties, but shall not be filed with the Office of Administrative Law Judges unless the presiding judge so orders, the document is being offered into evidence, the document is submitted in support of a motion or a response to a motion, filing is required by a specialized rule, or there is some other compelling reason for its submission.
13. Section 18.22 is amended by revising paragraph (c) to read as follows:
§ 18.22 -- Depositions.
* * * * *
(c) Notice. Notice shall be given for the taking of a deposition, which shall not be less than five (5) days written notice when the deposition is to be taken within the continental United States and not less than twenty (20) days written notice when the deposition is to be taken elsewhere. A copy of the Notice shall not be filed with the Office of Administrative Law Judges unless the presiding judge so orders, the document is being offered into evidence, the document is submitted in support of a motion or a response to a motion, filing is required by a specialized rule, or there is some other compelling reason for its submission.
* * * * *
PART 24-PROCEDURES FOR THE HANDLING OF DISCRIMINATION COMPLAINTS UNDER FEDERAL EMPLOYEE PROTECTION STATUTES
14. The authority citation for Part 24 continues to read as follows:
Authority: 42 U.S.C. 300j-9(i); 33 U.S.C. 1367; 15 U.S.C. 2622; 42 U.S.C. 6971; 42 U.S.C. 7622; 42 U.S.C. 5851.
15. Section 24.4 is amended by revising paragraph (d)(2) (i), (ii), (d)(3) (i) and (ii) to read as follows:
§ 24.4 -- Investigations.
* * * * *
(d) * * *
(2) * * *
(i) If on the basis of the investigation the Administrator determines that the complaint is without merit, the notice of determination shall include, or be accompanied by notice to the complainant that the notice of determination shall become the final order of the Secretary denying the complaint unless within five calendar days of its receipt the complainant files with the Chief Administrative Law Judge by facsimile (fax), telegram, hand delivery, or next-day delivery service, a request for a hearing on the complaint. The notice shall give the address and the facsimile number of the Chief Administrative Law Judge.
(ii) Copies of any request for a hearing shall be served by the complainant on
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the respondent (employer) and on the Administrator on the same day that the hearing is requested by facsimile (fax), telegram, hand delivery, or next-day delivery service,
(3) * * *
(i) If on the basis of the investigation the Administrator determines that the alleged violation has occurred, the notice of determination shall include an appropriate order to abate the violaion, and notice to the respondent that the order shall become the final order of the Secretary unless within five calendar days of its receipt the respondent files with the Chief Administrative Law Judge by facsimile (fax), telegram, hand delivery, or next-day delivery service, a request for a hearing. An order issued pursuant to this paragraph (d)(3)(i) shall be in accordance with the relevant provisions of the statute violated. The notice shall give the address and facsimile number of the Chief Administrative Law Judge.
(ii) Copies of any request for a hearing shall be sent by the respondent to the complainant and to the Administrator on the same day that the hearing is requested by facsimile (fax), telegram, hand delivery, or next-day delivery service.
Signed at Washington, D.C. this 8th day of August 1994.
Robert Reich,
Secretary of Labor.
[FR Doc. 94-19703 Filed 8-12-94; 8:45 am]
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