[Federal Register: June 20, 2008 (Volume 73, Number 120)]
[Proposed Rules]
[Page 35102-35111]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20jn08-20]
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DEPARTMENT OF LABOR
Employees Compensation Appeals Board
20 CFR Part 501
RIN 1290-AA22
Rules of Procedure
AGENCY: Employees' Compensation Appeals Board, Department of Labor.
ACTION: Notice of Proposed Rulemaking (NPRM); Request for Comments.
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SUMMARY: The Department of Labor (DOL or Department) is issuing this
Notice of Proposed Rulemaking (NPRM) to update the regulations
providing for appeals before the Employees' Compensation Appeals Board
(Board). The Board has jurisdiction over appeals arising under the
Federal Employees' Compensation Act (FECA). 5 U.S.C. 8149. Over the
forty-six years since the last major revisions to the Board's
procedural regulations, several aspects of the current rules have
become outdated by case law precedent or technological advances. These
proposed revisions will provide updated rules and guidance to all
federal employees who seek to appeal from the decisions of the Office
of Workers' Compensation Programs (OWCP) under FECA.
DATES: The Department invites interested persons to submit comments on
this proposed rule. To ensure consideration, comments must be in
writing and must be received on or before August 19, 2008.
ADDRESSES: You may submit comments, identified by Regulatory
Identification Number (RIN) 1290-AA22, by either one of the two
following methods:
Federal e-Rulemaking Portal: http://www.regulations.gov.
Follow the Web site instructions for submitting comments.
Mail/Hand Delivery/Courier: Written comments, disk and CD-
Rom submissions may be mailed or delivered by hand delivery/courier to
Alec J. Koromilas, Chairman and Chief Judge, Employees' Compensation
Appeals Board, via the Office of the Clerk of the Appellate Boards, 200
Constitution Avenue, NW., Washington, DC 20210. The Office of the Clerk
is open during business hours on all days except Saturdays, Sundays and
Federal Holidays, from 8:30 a.m. to 5 p.m., Eastern Time.
Additional information on submitting and reviewing comments is
found in Section IV.
FOR FURTHER INFORMATION CONTACT: Alec J. Koromilas, Chairman and Chief
Judge, Employees' Compensation Appeals Board, 200 Constitution Avenue,
NW., Room S-5220, Washington, DC, 20210; E-mail contact-oas@dol.gov;
Telephone (202) 693-6406 (VOICE) (this is not a toll-free number).
Individuals with hearing or speech impairments may access the telephone
number above via TTY by calling the toll-free Federal Information Relay
Service at (800) 877-8339.
SUPPLEMENTARY INFORMATION: This preamble is divided into four sections.
Section I provides general background information on the development of
the proposed revisions to 20 CFR part 501. Section II is a section-by-
section analysis of the proposed regulatory text. Section III covers
the administrative requirements for this proposed rulemaking. Section
IV provides additional information and instructions to those wishing to
comment on the rule.
I. Background
The Employees' Compensation Appeals Board was created by the
Reorganization Plan No. 2 of 1946 and transferred to the Department of
Labor in 1950 by Reorganization Plan No. 19 of 1950. See 5 U.S.C. 8145
notes. Under the Federal Employees' Compensation Act, the Secretary of
Labor must provide for an Employees' Compensation Appeals Board ``* * *
with the authority to hear and, subject to applicable law and the rules
and
[[Page 35103]]
regulations of the Secretary, make final decisions on appeals taken
from determinations and awards with respect to claims of employees.'' 5
U.S.C. 8149.
It has been forty-six years since the last major revisions to the
Board's procedural regulations, and the Department has not revised the
Part 501 rule at all since 1988. See 53 Fed. Reg. 49491 (December 7,
1988). Since these last amendments, administrative procedures have been
updated by Board case law and practice. This proposed rule incorporates
and codifies current Board operating procedures to provide more
thorough and accurate rules and guidance to Appellants and the
Representatives who come before the Board. In addition, the proposed
rule includes three major revisions: amending the time provided for
appeal, the procedures regarding requests for oral argument and
attorney fees.
First, the proposed regulations provide all Appellants 180 days in
which to file an appeal of a decision issued by OWCP. This is a change
from the current regulations, which require an appeal to be filed
within 90 days of the issuance of an OWCP decision for U.S. and
Canadian residents, and 180 days for those residing outside the U.S.
and Canada. Current regulations also permit the Board to waive the 90-
day or 180-day requirement and allow an appeal to be filed within one
year of the date of the OWCP decision, ``for good cause shown,''
without defining or describing what constitutes ``good cause.'' The
proposed regulations establish a uniform appeal time, but give the
Board discretion to increase the timeframe for any Appellant who
demonstrates compelling circumstances. Given a claimant's ability to
request reconsideration before the OWCP, and because the Board's review
of the case is limited to the evidence before the OWCP at the time of
the decision under review, the Board believes that allowing a uniform
180 days for the filing of an appeal (with the discretion to extend the
180 days for an Appellant who demonstrates compelling circumstances)
provides sufficient time for an Appellant to achieve review of a
decision by the Director.
Second, the proposed regulations provide for oral argument at the
discretion of the Board on its own, or in response to a written request
made within 60 days of the filing of the appeal that establishes the
need for oral argument. This is a change from the current regulations
that provide Appellants with a right to an oral argument before the
Board. Although oral argument can be beneficial in the context of novel
issues presented by the appeal, or in other contexts such as resolving
a perceived conflict between Board decisions on similar issues, there
are other situations in which oral argument is unlikely to add to the
record before the Board and therefore the Board is proposing to make
the granting of oral argument a matter within the Board's discretion.
Finally, an explicit articulation of the requirement for requesting
consideration and approval by the Board of any proposed fees for work
before the Board is provided in this revision.
In drafting the proposed regulations, the Board has anticipated
that technological advances may, in the future, allow the filing,
notice, service and presentation of documents and argument by
electronic means. These proposed regulations in no way limit the
Board's discretion in utilizing technological advances.
II. Summary and Discussion of Regulatory Provisions: Rules of Procedure
Section 501.1 Definitions
In this subsection, the Board has amended and added certain defined
terms. In paragraph (a), ``FECA'' replaces ``Act'' to more clearly
reference the Federal Employees' Compensation Act. A definition of the
Chief Judge and Chairman of the Board is provided for the first time in
(c), as is the definition of other Board members and their roles in a
new (d). In paragraph (e), ``OWCP'' has been substituted for ``Office''
to more clearly reference the Office of Workers' Compensation Programs.
As proceedings before the Board are non-adversarial, references to
``party'' have been removed from section 501.1 and throughout the rule.
In place of the term ``party,'' this section contains new paragraphs
(f), (g), and (h) for the terms ``Director,'' ``Appellant'' and
``Representative.'' The definition of ``counsel'' under the former
paragraph (f) is incorporated into the definition of ``Representative''
in the new paragraph (h). These terms also are used throughout the
proposed regulations.
The definition of ``Director'' in paragraph (f) deletes references
to the Canal Zone and Panama Canal Company as those entities ceased to
operate following the October 1, 1979 enactment of the Panama Canal Act
of 1979. Workers hired after that date are covered under the social
security system of the Republic of Panama. Workers hired before that
date or who are U.S. citizens continue to be covered under FECA. See
Exec. Order 12,652, 53 FR 36775 (Sept. 19, 1988). Paragraph (f)
recognizes that the Director may delegate his or her authority.
Finally, paragraph (f) states that the Director is represented before
the Board by an attorney designated by the Solicitor of Labor.
New subsection (i) defines the term ``Decision.'' Paragraph (j)
defines the term ``Clerk or Office of the Clerk.''
Section 501.2 Scope and Applicability of Rules; Compensation and
Jurisdiction of the Board
In paragraph (b), clarification is provided regarding the
appointment of three permanent judges and other alternate judges by the
Secretary of Labor. The Board has used alternate judges (formerly
``members'') since at least 1950; the Board's use of alternate judges
was approved in Norred v. Brock, Civ. A. No. 86-887 SSH, 1987 WL 18742
(D.D.C., October 7, 1987). In addition, a sentence is added to reflect
that the Board's functions are quasi-judicial in nature, because the
Board inherited the quasi-judicial functions of the Employees'
Compensation Commission when the Board was established in 1946. See
Clinton K. Yingling, 4 ECAB 529, 533-537 (1952).
Paragraph (c) provides that the Board's jurisdiction on appeal
extends only to the record considered by OWCP. During the pendency of
an appeal, Appellants often submit new evidence to the Board that
cannot be considered, or Appellants simultaneously seek an appeal and a
request for reconsideration before OWCP with the submission of new
evidence. The Board clarifies its procedure in subsection (c).
Subsection (c)(i) articulates that any evidence not previously
considered by OWCP will not be considered by the Board on appeal;
(c)(ii) states that there is no appeal with respect to any
interlocutory matter decided (or not decided) by OWCP during the
pendency of a case (an example of an interlocutory matter is a remand
by an OWCP Hearing Representative to the district office for further
development); and (c)(iii) codifies Board practice that once an appeal
is docketed by the Board, OWCP cannot retain jurisdiction to consider a
simultaneous request for reconsideration or hearing on the same issue
until after the Board relinquishes jurisdiction.
Section 501.3 Notice of Appeal
In this section, the Board clarifies the elements of a Notice of
Appeal. Paragraphs (a) and (b) contain essentially the same language as
the current regulation regarding who may file an appeal and where an
appeal is to be filed. Subsections (c)(i)-(v) expand
[[Page 35104]]
upon the elements that must be contained in an Appeal Notice.
Additional requirements of providing the date of the appeal, the phone
numbers of the Appellant and any duly appointed Representative, a
signed authorization for that Representative, and the Appellant's
signature on the notice of appeal have been added. These items are
intended to increase the Clerk's ability to timely contact Appellant or
his or her Representative during the pendency of the appeal, and to
verify the Representative named in the appeal. The addition of this
data achieves consistency with the information requested through the
optional use of the Form AB-1, which may be used but is not required.
Paragraph (d) incorporates case law for the circumstances that
allow substitution for a deceased Appellant. When an employee properly
files an appeal before the Board but then dies prior to the Board's
disposition of the appeal, the appeal may proceed to adjudication only
if there is a substitution of a proper appellant. The request must be
made by motion, providing documentation of the death and requesting a
determination as to whether a substitution of an appropriate party in
interest has been proposed. See John J. Cremo, 38 ECAB 153, 155-156
(1986).
The proposed paragraph (e) provides 180 days for the filing of all
appeals, regardless of where the Appellant lives. Currently, the rule
provides 90 days for persons living in the United States or Canada and
180 days for persons living outside the United States or Canada. As
discussed above, the Board believes 180 days is a sufficient amount of
time for a claimant to appeal an adverse decision, given a claimant's
ability to request reconsideration before the OWCP, and because the
Board's review of the case is limited to the evidence before the OWCP
at the time of the decision under review.
Additionally, paragraph (e) states that should compelling
circumstances prevent an Appellant from meeting this 180-day
limitation, the Board has retained discretion to extend this time
period, but only on specific application to the Board. As paragraph (e)
states, ``compelling circumstances'' are ``circumstances beyond the
Appellant's control'' and do not include ``delay caused by failure of
an individual to exercises due diligence in submitting a notice of
appeal.'' The Board has adopted a new term, ``compelling
circumstances,'' in place of ``good cause,'' for the standard
describing its discretion in accepting an appeal filed after the 180
days. The phrase ``compelling circumstances'' has been substituted in
the proposed rule to insure that an objective standard for accepting an
appeal after 180 days is being uniformly followed. The standard of
``good cause'' which appears in the current regulations concerning time
limits for appeals was not being enforced in practice. For example,
``compelling circumstances'' could include a medical condition that
renders the Appellant incompetent or military service in a war zone.
The Board will, in its discretion, consider any such request on a case-
by-case basis.
Date of filing requirements have been moved from Section
501.3(d)(3) to paragraph (f) and include more extensive discussion of
these requirements to assist Appellants. The new language in (f)(i)
replaces language currently found in 501.10(c) by acknowledging that
commercial delivery services may be used by Appellants in place of the
U.S. Mail Service, but only the date of receipt by the Clerk will then
be used to determine timeliness. If, however, the U.S. Mail Service is
used, the Board will continue to look to the date of mailing to
establish timeliness if the date of receipt by the Clerk would make the
appeal untimely. Subsection (f)(ii) contains provisions in current
section 501.10(d)(1) and also incorporates case law and current Board
practice that the determination of timeliness of the appeal starts the
day after the date of the OWCP decision. See Angel M. Labron, Jr., 51
ECAB 488 (2000), citing to John B. Montoya, 43 ECAB 1148 (1992), citing
to Marguerite J. Dvorak, 33 ECAB 1682 (1982). While section
501.3(f)(ii) only addresses timelines with respect to filing dates, the
Board will consistently apply this section's method of computing time
for all actions in the unlikely event that time computation becomes an
issue for another action under this Part.
The provisions for the filing of pleadings currently found in
section 501.3(e) are moved in the proposed regulation to section
501.4(c) and (d). The term ``pleadings'' is broadly construed to
include all written communications from an Appellant or Representative
to the Board, including briefs, statements of law, memoranda in
justification, motions, and the optional form AB-1.
Proposed paragraph (g) clarifies that if an appeal is filed more
than 180 days from the date of the OWCP decision without a successful
request to extend time due to compelling circumstances, the appeal will
be dismissed and there will be no further review of the OWCP decision.
Proposed paragraph (h) discusses the procedures used by the Clerk
upon receipt of an incomplete appeal, currently found at the end of
section 501.3(c). The proposed paragraph (h) specifies that it is the
Clerk who will specify a reasonable time for Appellant to submit all
required information missing from the appeal. Additionally, paragraph
(h) states that if the needed information is not received in the time
specified, the appeal will be dismissed.
Section 501.4 Case Record; Inspection; Submission of Pleadings and
Motions
The current regulations regarding service of an appeal on OWCP and
transmission of the OWCP record to ECAB, now at 501.4(a) and (b), are
essentially restated in the proposed 501.4(a), except for the reference
to the Solicitor of Labor acting as a conduit for transmission of the
OWCP records from OWCP to the Board. The Office of the Solicitor's role
as Representative of OWCP is now referenced in section 501.1(f)'s
definition of the Director.
Paragraph (b) describes the different options available to an
Appellant who wishes to inspect, or receive a copy of, the OWCP record
that is on appeal to the Board. This paragraph incorporates many of the
provisions regarding inspection of the ECAB docket and record that are
currently found in Section 501.8(b). However, the proposed paragraph no
longer states that the docket of the Board is open to public
inspection. This change acknowledges that the docket is maintained in a
Privacy Act system of records, DOL/ECAB-1, Employees' Compensation
Appeals Board Docket Records, 67 Fed. Reg. 16867 (April 8, 2002).
Consequently, release of information from the docket is no longer
automatic; any release of information from the docket must be in
conformity with the requirements of the Privacy Act, 5 U.S.C. 552a, and
the Department of Labor's implementing regulations found at 29 CFR part
71.
Paragraphs (c) and (d) expand current Section 501.3(e), which
allows applications for review to be accompanied by a brief or
supporting statement, by providing for the filing of pleadings
(including supporting statements, briefs, and memoranda of law), and
motions. Consistent with current Board practice, pleadings generally
provide any type of information to the Board, whereas motions request
Board action. Motions may include a request that the Board dismiss the
appeal, affirm the OWCP decision or remand for further
[[Page 35105]]
consideration, approve a substitution on appeal, or other such matter.
The Board on its own may also take action regarding a pending appeal.
In addition, the Clerk is solely responsible for the service of a copy
of all pleadings and motions filed with the Board on the Appellant, his
or her Representative and the Director. This change to the original
provision in subsection 501.10(b), which has been deleted, is intended
to ensure that all documents filed with the Board are provided to
Appellants, their Representatives and the Director. In addition,
provisions originally contained in 501.10(d)(3) regarding motions for
extension of time to file a paper other than a notice of appeal or
petition for reconsideration are now contained in section 501.4(d).
Paragraph (e) requires the filing of an original and two copies of
all papers with the Clerk, replacing Section 501.10(a). This is an
increase from one to two copies to facilitate the processing efficiency
of the Clerk.
Section 501.5 Oral Argument
This proposed section revises and expands upon the current
regulation's provisions regarding oral argument, also found at section
501.5. Proposed paragraph (a) provides that the granting of oral
argument is within the discretion of the Board and not automatically
scheduled upon the request of an Appellant or the Director. This is a
change in the availability of oral argument. As previously discussed,
while oral argument can provide the Board valuable assistance in
addressing and evaluating the issues presented on appeal, the Board has
concluded that automatic availability of oral argument on request of an
Appellant or the Director is not necessary. The Board still retains the
ability to grant oral argument in an appropriate case. The Board may
grant oral argument, for example, when the case presents an issue not
previously considered by the Board, when oral argument will assist the
Board in carrying out the intent of FECA, in the interests of justice,
or when oral argument will resolve a conflict in Board decisions on a
substantial question of law.
Proposed paragraph (b) provides that a request for oral argument
must specify the issue(s) to be addressed, provide a statement
supporting the need for oral argument, and be submitted in writing no
later than 60 days from the date of the appeal. If not granted, the
Board will proceed to a decision on the record.
Revised paragraph (c) provides that the Clerk will notify the
Appellant and Director at least 30 days before the date set for the
argument, and the notice of oral argument will state the issues to be
heard. The increase from 10 to 30 days is designed to give Appellants
more time to prepare for oral argument and to arrange travel to
Washington, DC. Paragraphs (d) and (e) specify that thirty minutes will
be provided for the argument by either the Appellant or his or her
Representative, not both. This changes the current regulations
statement that ``generally not more than 1 hour shall be allowed for
oral argument.'' However, the proposed regulation retains the Board's
discretion to extend the new 30 minute time limit. In new paragraph
(f), the Board emphasizes that costs associated with travel to oral
argument, held in Washington, DC, are borne by the Appellant. This is
consistent with current practice.
Proposed paragraph (g) codifies the current practice that a
continuance may only be granted for good cause shown and only if the
request is received by the Board at least 15 days prior to the date
scheduled for oral argument. Paragraph (h) continues the Board's
discretion, now found at current section 501.5(c), to determine that
non-appearance by either Appellant or the Director will not delay the
Board's resolution of an appeal and the Board may treat the appeal as
submitted on the record.
Section 501.6 Decisions and Orders
The Board is revising this section to provide more information
regarding the Board's practice in the issuance of decisions and orders.
Paragraph (a) states that the Board's decision will be in writing and
the types of decisions that the Board may make. Paragraph (b) states
the number of judges on a panel and the number needed to make a
decision. Paragraph (c) provides new language, consistent with Board
practice, regarding how the date of issuance is determined. Proposed
paragraph (d) combines the provisions found in current paragraphs (c)
and (d), stating that the Board's decision will become final 30 days
from the date of issuance and that at that point the Board will no
longer retain jurisdiction over the appeal unless a petition for
reconsideration is submitted and granted or unless the Board fixes
another date for finality. See Section 501.7. Paragraph (e) explains
dispositive orders. Paragraph (f) states that the Board will send a
copy of its opinion to the Appellant as well as the Director and notes
that, where Appellant has authorized a Representative on appeal,
service of the Board's opinion will be made to both the Appellant and
to the Representative.
Section 501.7 Petition for Reconsideration
The proposed revisions to this section expand upon the information
in the current section 501.7 regarding the Board's practice and
procedures regarding requests for reconsideration. Paragraph (a)
maintains a 30 day time period for filing a petition for
reconsideration, with time measured from the date of the issuance of a
decision or order, unless the Board sets another time period.
Paragraph (b) changes the instructions on where to file the
petition, and newly stipulates that the Clerk will ensure that
Appellants, their Representatives and the Director are served with
copies of the petition for reconsideration. Paragraph (c) states what
information must be in the petition. Paragraph (d) describes the panel
of judges who will review the petition, noting that it is the Board's
practice to assign the same panel to hear a petition for
reconsideration if at all possible. This codification of agency
practice provides continuity and efficiency in the consideration of
reconsideration requests. Paragraph (e) allows, but does not require,
an answer to be filed. Paragraph (f) notes that, at the Board's
discretion, an oral argument may be allowed prior to the Board's
decision on the petition for reconsideration.
Section 501.8 Clerk of the Office of the Appellate Boards; Docket of
Proceedings; Records
Section 501.8 is revised to provide more information regarding the
Clerk's office, the docket and record maintained by the Board.
Paragraph (a) gives the address and business hours for the Clerk.
Business hours of the Clerk are provided by the Board to clarify
``close of business'' for purposes of section 501.3(f). Paragraph (b)
states that the Clerk will maintain the docket in the chronological
order in which notices of appeal are received, but that the Board
retains discretion regarding the order in which it will hear appeals.
Provisions and proposed amendments to current regulation section
501.8(b), including the elimination of the provision providing public
inspection of the ECAB docket, and clarifications regarding the public
availability of the OWCP record, have been moved to proposed section
501.4(b).
Paragraph (c) continues to state that final decisions of the Board
will be published in a form readily available for inspection by the
general public. This proposed regulation will not change current Board
practices in publication of final decisions. The phrase ``readily
[[Page 35106]]
available'' means the Board will provide copies of its decisions in a
form that complies with section 508 of the Rehabilitation Act of 1973,
29 U.S.C. 701 et seq.
The Board, through its written decisions, has the responsibility
for interpreting the FECA and resolving matters raised on appeal. The
written decisions of the Board set forth the relevant facts of each
claim, evaluate the facts in terms of applicable workers' compensation
law, and affirm OWCP's decision or direct corrective action or
discretionary relief, or order such action as may be appropriate
depending on the case. The Board has the responsibility to establish a
sound body of case precedent in the interpretation of the FECA, its
implementing regulations, and procedures in order to provide guidance
in the administration of Federal workers' compensation claims. The
Board's decisions are cited in OWCP motions and decisions as well as by
courts and legal authorities. Due to budgetary considerations, however,
the Board is not able to include every written decision in its annual
paper bound volume of published decisions, Digest and Decisions of the
Employees' Compensation Appeals Board, but takes great care selecting
those decisions that represent important case precedent. The annual
volume does not include routine cases or procedural orders. The Digest
and Decisions of the ECAB is available at various law libraries
throughout the country. A complete collection of Board final decisions
is posted on the DOL Web site and Board final decisions also are
available in print form from the Clerk's office upon request and
through various commercial vendors providing research services. The
Board notes that copies of its final decisions are included in the
Board docket, which is maintained in a system of records (DOL/ECAB-1)
covered by the Privacy Act. Release of ECAB decisions are permitted in
accordance with the DOL/ECAB-1's routine use provisions. See 67 Fed.
Reg. 16867 (April 8, 2002).
Section 501.9 Representation; Appearances and Fees
Section 501.9 incorporates and expands upon information currently
contained in section 501.11. This proposed section defines
representation in paragraph (a) and notes that a Representative may be
either an attorney or non-attorney, but that representation by former
DOL employees and judges is governed by the Department's ethics
regulations. Paragraph (b) states that an Appellant must file a written
authorization with the Board for any Representative. Paragraph (c)
requires that changes of address be reported to the Clerk. Proposed
paragraph (d) continues the current section 501.11(c) regarding rules
of Representative debarment and debarment appeals.
Proposed section 501.9(e) amends the attorney and other fee
provisions now found in section 501.11(d). Board experience has
demonstrated that the statutory requirement that attorney and other fee
requests must be approved by the Board for work before it, see 5 U.S.C.
8127, is often not followed. Therefore, in paragraph (e) the Board has
clarified the requirements regarding review of all fee applications to
ensure that Appellants are aware of and understand the mandatory
requirement for Board consideration and approval of any fee application
by a Representative or Counsel. Paragraph (e) also expands the list of
factors that the Board will evaluate when reviewing fee requests. This
section also provides information to those practicing before ECAB about
the federal criminal law provision relating to Representatives in the
FECA process, as failure to receive an approval from ECAB for
collecting a fee may constitute a violation of federal law under 18
U.S.C. 292.
Section 501.10 Number of Copies
This section has been deleted and its requirements incorporated
into section 501.4.
Section 501.11 Appearances
This section has been deleted and its requirements incorporated
into section 501.9.
Section 501.12 Intervention
This section has been deleted in its entirety. The intervention
process, used only occasionally by OWCP prior to the 1989 transfer of
Panama Canal Commission cases to the OWCP, has not been utilized in
recent years and is deleted as unnecessary.
Section 501.13 Place of Proceedings
This section has been deleted and its requirements incorporated
into section 501.3.
III. Administrative Requirements for the Proposed Rulemaking
Executive Order 12866
The Office of Management and Budget has not reviewed this proposed
rule because it is not economically significant. This proposed rule
will not materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs; nor will it have an annual effect on the
economy of $100 million or more; nor will it adversely affect the
economy, a sector of the economy, productivity, competition, jobs, the
environment, public health or safety, or State, local or tribal
governments or communities in any material way. Furthermore, it does
not raise a novel legal or policy issue arising out of legal mandates,
the President's priorities or the principles set forth in the Executive
Order.
Regulatory Flexibility Act of 1980
This proposed rule has been reviewed in accordance with the
Regulatory Flexibility Act of 1980, as amended by the Small Business
Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 601-612. The
Department has concluded that the rule does not involve regulatory and
informational requirements regarding businesses, organizations, and
governmental jurisdictions subject to regulation.
Paperwork Reduction Act (PRA)
The Department certifies that this proposed rule has been assessed
in accordance with the requirements of the Paperwork Reduction Act, 44
U.S.C. 3501 et seq. (PRA). The Department concludes that the
requirements of the PRA do not apply to this rulemaking, as this
rulemaking involves administrative actions to which the Federal
government is a party and that occur after an administrative case file
has been opened regarding a particular individual. See 5 CFR
1320.4(a)(2), (c).
The National Environmental Policy Act of 1969
The Department certifies that this proposed rule has been assessed
in accordance with the requirements of the National Environmental
Policy Act of 1969, 42 U.S.C. 4321 et seq. (NEPA). The Department
concludes that NEPA requirements do not apply to this rulemaking
because this proposed rule includes no provisions impacting the
maintenance, preservation or enhancement of a healthful environment.
Federal Regulations and Policies on Families
The Department has reviewed this proposed rule in accordance with
the requirements of section 654 of the Treasury and General Government
Appropriations Act of 1999, 5 U.S.C. 601 note. These proposed
regulations were not found to have a potential negative affect on
family well-being as it is defined thereunder.
[[Page 35107]]
Executive Order 13045: Protection of Children From Environmental Health
Risks and Safety Risks
The Department certifies that this proposed rule has been assessed
regarding environmental health risks and safety risks that may
disproportionately affect children. These proposed regulations were not
found to have a potential negative affect on the health or safety of
children.
Unfunded Mandates Reform Act of 1995 and Executive Order 13132
The Department has reviewed this proposed rule in accordance with
the requirements of Exec. Order No. 13132, 64 Fed. Reg 43,225 (Aug. 10,
1999) 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 or
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 proposed rule in accordance with
Exec. Order 13,175, 65 FR 67,249 (Nov. 9, 2000), and has determined
that it does not have ``tribal implications.'' The proposed rule does
not ``have substantial direct effects on one or more Indian tribes, on
the relationship between the Federal government and Indian tribes, or
on the distribution of power and responsibilities between the Federal
government and Indian tribes.''
Executive Order 12630: Governmental Actions and Interference With
Constitutionally Protected Property Rights
The Department has reviewed this proposed rule in accordance with
Exec. Order 12630, 53 FR 8859 (Mar. 15, 1988) and has determined that
it does not contain any ``policies that have takings implications'' in
regard to the ``licensing, permitting, or other condition requirements
or limitations on private property use, or that require dedications or
exactions from owners of private property.''
Executive Order 13211: Energy Supply, Distribution, or Use
The Department has reviewed this proposed regulation and has
determined that the provisions of Exec. Order 13211, 66 FR 28355 (May
18, 2001) are not applicable as this is not a significant regulatory
action and there are no direct or implied effects on energy supply,
distribution, or use.
The Privacy Act of 1974, 5 U.S.C. 552a, as Amended
The Department has reviewed these proposed rules under the Privacy
Act, 5 U.S.C. 552a, and has determined that this proposed rule will not
require that any new information be processed, filed or collected
during an appeal before the Board. Case files will continue to be
released or not released consistent with the provisions of the Privacy
Act and current published systems of record notices. Therefore, the
Department has determined this proposed rule would not require revision
of the current Privacy Act System of Records, DOL/GOVT-1, Office of
Workers' Compensation Programs, Federal Employees' Compensation Act
File, 67 Fed. Reg. 16826 (April 8, 2002) and DOL/ECAB-1, Employees'
Compensation Appeals Board Docket Records, 67 Fed. Reg. 16867 (April 8,
2002).
Clarity of This Regulation
Executive Order 12866, 58 FR 51735 (September 30, 1993), and the
President's memorandum of June 1, 1998, require each agency to write
all rules in plain language. The Department invites comments on how to
make this proposed rule easier to understand.
List of Subjects in 20 CFR Part 501
Rules of Procedure for practice before the Employees' Compensation
Appeals Board, including definitions; scope and applicability of rules;
composition and jurisdiction; notice of appeal; case record, inspection
and submission of pleadings and motions; oral argument; decisions and
orders; petitions for reconsideration; clerk, docket and records; and
representation, appearances and fees.
IV. Instructions for Providing Comments
APA Requirements for Notice and Comment
The majority of changes proposed here consist of amendments to
rules of agency organization, procedure and practice, and consequently
are exempt from the notice and public comment requirements of the
Administrative Procedures Act, see 5 U.S.C. 553(b)(3)(A). However, the
Board and the Department wish to provide the public with an opportunity
to submit comments on any aspect of the entire proposed rule.
Methods of Filing Comments
Please submit only one copy of your comments via any of the methods
noted in the addresses section. All submissions received must include
the agency name, as well as RIN 1290-AA22. Also, please note that due
to security concerns, postal mail delivery in Washington, DC may be
delayed. Therefore, in order to ensure that comments are received on
time, the Department encourages the public to submit comments via the
Internet as indicated above.
Publication of Comments Submitted Electronically
Please be advised that the Department will post all comments
received on http://www.regulations.gov without making any change to the
comments, including any personal information provided. The http://
www.regulations.gov Web site is the Federal e-rulemaking portal and all
comments posted there are available and accessible to the public.
Therefore, the Department recommends that commenters safeguard their
personal information by not including Social Security Numbers, personal
addresses, telephone numbers, and e-mail addresses in comments. It is
the responsibility of the commenter to safeguard his or her
information.
Rulemaking Docket
In addition to the electronic comments available on http://
www.regulations.gov, the Department will make all the comments it
receives available for public inspection during normal business hours
at the above address. If you need assistance to review the comments,
the Department will provide you with appropriate aids such as readers
or print magnifiers. The Department will make copies of the proposed
rule available, upon request, in large print or electronic file on
computer disc. The Department will consider providing the proposed rule
in other formats upon request. To schedule an appointment to review the
comments and/or obtain the proposed rule in an alternate format,
contact the office of Alec J. Koromilas, Chairman and Chief Judge,
Employees' Compensation Appeals Board at (202) 693-6406 (VOICE)(this is
not a toll-free number) or (877) 889-5627 (TTY/TDD). You may also
contact Chairman Koromilas' office at the address listed above.
[[Page 35108]]
Signed at Washington, DC, on June 16, 2008.
Howard M. Radzely,
Deputy Secretary, U.S. Department of Labor.
For the reasons stated in the preamble, the Department of Labor
proposes to revise 20 CFR part 501 to read as follows:
PART 20--THE EMPLOYEES' COMPENSATION APPEALS BOARD--RULES OF
PROCEDURE
Sec.
501.1 Definitions
501.2 Scope and Applicability of Rules; Composition and Jurisdiction
of the Board
501.3 Notice of Appeal
501.4 Case Record; Inspection; Submission of Pleadings and Motions
501.5 Oral Argument
501.6 Decisions and Orders
501.7 Petition for Reconsideration
501.8 Clerk of the Office of the Appellate Boards; Docket of
Proceedings; Records
501.9 Representation; Appearances and Fees
Authority: 5 U.S.C. 8101 et seq.
Sec. 501.1 Definitions.
(a) FECA means the Federal Employees' Compensation Act, 5 U.S.C.
8145, and any statutory extension or application thereof.
(b) The Board means the Employees' Compensation Appeals Board.
(c) Chief Judge and Chairman of the Board means the Chairman of the
Employees' Compensation Appeals Board.
(d) Judge or Alternate Judge means a member designated and
appointed by the Secretary of Labor with authority to hear and make
final decisions on appeals taken from determinations and awards by the
OWCP in claims arising under the FECA.
(e) OWCP means the Office of Workers' Compensation Programs,
Employment Standards Administration, U.S. Department of Labor.
(f) Director means the Director of the Office of Workers'
Compensation Programs or a person delegated authority to perform the
functions of the Director. The Director of OWCP is represented before
the Board by an attorney designated by the Solicitor of Labor.
(g) Appellant means any person adversely affected by a final
decision or order of the OWCP who files an appeal to the Board.
(h) Representative means an individual properly authorized by an
Appellant in writing to act for the Appellant in connection with an
appeal before the Board. The Representative may be any individual or an
attorney, who is a member in good standing of the bar of the Supreme
Court of the United States or the highest court of any State, territory
or the District of Columbia.
(i) Decision, as prescribed by 5 U.S.C. 8149 of the FECA, means the
final determinative action made by the Board on appeal of a claim.
(j) Clerk or Office of the Clerk means Clerk of the Office of the
Appellate Boards.
Sec. 501.2 Scope and applicability of rules, composition and
jurisdiction of the Board.
(a) The regulations in this part establish the Rules of Practice
and Procedure governing the operation of the Employees' Compensation
Appeals Board.
(b) The Board consists of three permanent judges, one of whom is
designated as Chief Judge and Chairman of the Board, and such alternate
judges as are appointed by the Secretary of Labor. The Chief Judge is
the administrative officer of the Board. The functions of the Board are
quasi-judicial. For organizational purposes, the Board is placed in the
Office of the Secretary of Labor and sits in Washington, DC.
(c) The Board has jurisdiction to consider and decide appeals from
final decisions of OWCP in any case arising under the FECA. The Board
may review all relevant questions of law, fact and exercises of
discretion (or failure to exercise discretion) in such cases.
(1) The Board's review of a case is limited to the evidence in the
case record that was before OWCP at the time of its final decision.
Evidence not before OWCP will not be considered by the Board for the
first time on appeal.
(2) There will be no appeal with respect to any interlocutory
matter decided (or not decided) by OWCP during the pendency of a case.
(3) The Board and OWCP may not exercise simultaneous jurisdiction
over the same issue in a case on appeal. Following the docketing of an
appeal before the Board, OWCP does not retain jurisdiction to render a
further decision regarding the issue on appeal until after the Board
relinquishes jurisdiction.
Sec. 501.3 Notice of appeal.
(a) Who may file. Any person adversely affected by a final decision
of the Director, or his or her authorized Representative, may file for
review of such decision by the Board.
(b) Place of filing. The notice of appeal shall be filed with the
Clerk at 200 Constitution Avenue, NW., Washington, DC 20210.
(c) Content of Notice of Appeal. A notice of appeal shall contain
the following information:
(1) Date of Appeal.
(2) Full name, address and telephone number of the Appellant and
the full name of any deceased employee on whose behalf an appeal is
taken. In addition, the Appellant must provide a signed authorization
identifying the full name, address and telephone number of his or her
Representative, if applicable.
(3) Employing establishment, date, description and the place of the
injury.
(4) Date and Case File Number assigned by OWCP concerning the
decision being appealed to the Board.
(5) A statement explaining Appellant's disagreement with OWCP's
decision and stating the factual and/or legal argument in favor of the
appeal.
(6) Signature: An Appellant must sign the notice of appeal.
(d) Substitution of Appellant: Should the Appellant die after
having filed an appeal with the Board, the appeal may proceed to
decision provided there is the substitution of a proper Appellant who
requests that the appeal proceed to decision by the Board.
(e) Time limitations for filing. Any notice of appeal must be filed
within 180 days from the date of issuance of a decision of the OWCP.
The Board maintains discretion to extend the time period for filing an
appeal if an applicant demonstrates compelling circumstances.
Compelling circumstances means circumstances beyond the Appellant's
control, not including any delay caused by the failure of an individual
to exercise due diligence in submitting a notice of appeal.
(f) Date of Filing. A notice of appeal complying with paragraph (c)
is considered to have been filed only if received by the Clerk by the
close of business within the period specified under paragraph (e).
(1) Date of Mailing. If the notice of appeal is sent by United
States Mail and use of the date of delivery as the date of filing would
result in a loss of appeal rights, the appeal will be considered to
have been filed as of the date of mailing. The date appearing on the
U.S. Postal Service postmark (when available and legible) shall 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, certificate of service and affidavits, may
be used to establish the mailing date. If a notice of appeal is
delivered or sent by means other than United States Mail, including
commercial delivery, personal delivery or fax, the notice is deemed to
be received when received by the Clerk.
(2) In computing the date of filing, the 180 day time period for
filing an appeal
[[Page 35109]]
begins to run on the day following the date of the OWCP decision. The
last day of the period so computed shall be included, unless it is a
Saturday, Sunday or Federal holiday, in which event the period runs to
the close of the next business day.
(g) Failure To Timely File a Notice of Appeal. The failure of an
Appellant or Representative to file an appeal with the Board within the
period specified under paragraph (e) of this section, including any
extensions granted by the Board in its discretion based upon compelling
circumstances, will foreclose all right to review. The Board will
dismiss any untimely appeal for lack of jurisdiction.
(h) Incomplete Notice of Appeal. Any timely notice of appeal that
does not contain the information specified in paragraph (c) of this
section will be considered incomplete. On receipt by the Board, the
Clerk will inform Appellant of the deficiencies in the notice of appeal
and specify a reasonable time to submit the requisite information. Such
appeal will be dismissed unless Appellant provides the requisite
information in the time specified by the Clerk.
Sec. 501.4 Case record, inspection, submission of pleadings, and
motions.
(a) Service on OWCP and Transmission of OWCP Case Record. The Board
shall serve upon the Director a copy of each notice of appeal and
accompanying documents. Within 60 days from the date of such service,
the Director shall provide to the Board the record of the OWCP
proceeding to which the notice refers. On application of the Director,
the Board may, in its discretion, extend the time period for submittal
of the OWCP case record.
(b) Inspection of Record. The case record on appeal is an official
record of the OWCP.
(1) Upon written application to the Clerk, an Appellant may request
inspection of the OWCP case record. At the discretion of the Board, the
OWCP case record may either be made available in the Office of the
Clerk of the Appellate Boards for inspection by the Appellant, or the
request may be forwarded to the Director so that OWCP may make a copy
of the OWCP case record and forward this copy to the Appellant.
Inspection of the papers and documents included in the OWCP case record
of any appeal pending before the Board will be permitted or denied in
accordance with 5 CFR 10.10 to 10.13. The Chief Judge (or his or her
designee) shall serve as the disclosure officer for purposes of
Appendix A to 29 CFR parts 70 and 71.
(2) Copies of the documents generated in the course of the appeal
before the Board will be provided to the Appellant and Appellant's
Representative by the Clerk. If the Appellant needs additional copies
of such documents while the appeal is pending, the Appellant may obtain
this information by contacting the Clerk. Pleadings and motions filed
during the appeal in proceedings before the Board will be made part of
the official case record of the OWCP.
(c) Pleadings. The Appellant, the Appellant's Representative and
the Director may file pleadings supporting their position and
presenting information, including but not limited to briefs, memoranda
of law, memoranda of justification, and optional form AB-1. All
pleadings filed must contain the docket number and be filed with the
Clerk. The Clerk will issue directions specifying the time allowed for
any responses and replies.
(1) The Clerk will distribute copies of any pleading received by
the Clerk to ensure that the Appellant, his or her Representative and
the Director receive all pleadings. Any pleading should be submitted
within 60 days of the filing of an appeal. The Board may, in its
discretion, extend the time period for the submittal of any pleading.
(2) Proceedings before the Board are informal and there is no
requirement that any pleading be filed. Failure to submit a pleading or
to timely submit a pleading does not prejudice the rights of either the
Appellant or the Director.
(3) Upon receipt of a pleading, the Appellant and the Director will
have the opportunity to submit a response to the Board.
(d) Motions. Motions are requests for the Board to take specific
action in a pending appeal. Motions include, but are not limited to,
motions to dismiss, affirm the decision below, remand, request a
substitution, request an extension of time, or other such matter as may
be brought before the Board. Motions may be filed by the Appellant, the
Appellant's Representative and the Director. The motion must be in
writing, contain the docket number, state the relief requested and the
basis for the relief requested, and be filed with the Clerk. Any motion
received will be sent by the Clerk to ensure that the Appellant, his or
her Representative and the Director receive all motions. The Clerk will
issue directions specifying the timing of any responses and replies.
The Board also may act on its own to issue direction in pending
appeals, stating the basis for its determination.
(e) Number of Copies. All filings with the Board, including any
notice of appeal, pleading, or motion shall include an original and two
(2) legible copies.
Sec. 501.5 Oral argument.
(a) Oral argument. Oral argument may be held in the discretion of
the Board, on its own determination or on application by Appellant or
the Director.
(b) Request. A request for oral argument must be submitted in
writing to the Clerk. The application must specify the issue(s) to be
argued and provide a statement supporting the need for oral argument.
The request must be made no later than 60 days after the filing of an
appeal. Any appeal in which a request for oral argument is not granted
by the Board will proceed to a decision based on the case record and
any pleadings submitted.
(c) Notice of Argument. If a request for oral argument is granted,
the Clerk will notify the Appellant and the Director at least 30 days
before the date set for argument. The notice of oral argument will
state the issues that the Board has determined will be heard.
(d) Time allowed. Appellant and any Representative for the Director
shall be allowed no more than 30 minutes to present oral argument. The
Board may, in its discretion, extend the time allowed.
(e) Appearances. An Appellant may appear at oral argument before
the Board or designate a Representative. Argument shall be presented by
the Appellant or a Representative, not both. The Director may be
represented by an attorney with the Solicitor of Labor. Argument is
limited to the evidence of record on appeal.
(f) Location. Oral argument is heard before the Board only in
Washington, DC. The Board does not reimburse costs associated with
attending oral argument.
(g) Continuance. Once oral argument has been scheduled by the
Board, a continuance will not be granted except on a showing of good
cause. Good cause may include extreme hardship or where attendance by
an Appellant or Representative is mandated at a previously scheduled
judicial proceeding. Any request for continuance must be received by
the Board at least 15 days before the date scheduled for oral argument
and be served by the requester upon Appellant and the Director. No
request for a second continuance will be entertained by the Board. In
such case, the appeal will proceed to a decision based on the case
record. The Board may reschedule or cancel oral argument on its own
motion at any time.
(h) Nonappearance. The absence of an Appellant, his or her
Representative, or
[[Page 35110]]
the Director at the time and place set for oral argument will not delay
the Board's resolution of an appeal. In such event, the Board may, in
its discretion, reschedule oral argument, or cancel oral argument and
treat the case as submitted on the case record.
Sec. 501.6 Decisions and orders.
(a) Decisions. A decision of the Board will contain a written
opinion setting forth the reasons for the action taken and an
appropriate order. The decision is based on the case record, all
pleadings and any oral argument. The decision may consist of an
affirmance, reversal or remand for further development of the evidence,
or other appropriate action.
(b) Panels. A decision of not less than two judges will be the
decision of the Board.
(c) Issuance. The date of the Board's decision is the date of
issuance or such date as determined by the Board. Issuance is not
determined by the postmark on any letter containing the decision or the
date of actual receipt by Appellant or the Director.
(d) Finality. The decisions and orders of the Board are final as to
the subject matter appealed, and such decisions and orders are not
subject to review, except by the Board. The decisions and orders of the
Board will be final upon the expiration of 30 days from the date of
issuance unless the Board has fixed a different period of time therein.
Following the expiration of that time, the Board no longer retains
jurisdiction over the appeal unless a timely petition for
reconsideration is submitted and granted.
(e) Dispositive Orders. The Board may dispose of an appeal on a
procedural basis by issuing an appropriate order disposing of part or
all of a case prior to reaching the merits of the appeal. The Board may
proceed to an order on its own or on the written motion of Appellant or
the Director.
(f) Service. The Board will send its decisions and orders to the
Appellant, his or her Representative and the Director at the time of
issuance.
Sec. 501.7 Petition for reconsideration.
(a) Time for filing. The Appellant or the Director may file a
petition for reconsideration of a decision or order issued by the Board
within 30 days of the date of issuance, unless another time period is
specified in the Board's order.
(b) Where to file. The petition must be filed with the Clerk.
Copies will be sent by the Clerk to the Director, the Appellant and his
or her Representative in the time period specified by the Board.
(c) Content of Petition. The petition must be in writing. The
petition must contain the docket number, specify the matters claimed to
have been erroneously decided, provide a statement of the facts upon
which the petitioner relies, and a discussion of applicable law. New
evidence will not be considered by the Board in a petition for
reconsideration.
(d) Panel. The panel of judges who heard and decided the appeal
will rule on the petition for reconsideration. If any member of the
original panel is unavailable, the Chief Judge may designate a new
panel member. The decision or order of the Board will stand as final
unless vacated or modified by the vote of at least two members of the
reconsideration panel.
(e) Answer. Upon the filing of a petition for reconsideration,
Appellant or the Director may file an answer to the petition within
such time as fixed by the Board.
(f) Oral Argument and Decision on Reconsideration. An oral argument
may be allowed at the discretion of the Board upon application of the
Appellant or Director or the Board may proceed to address the matter
upon the papers filed. The Board shall grant or deny the petition for
reconsideration and issue such orders as it deems appropriate.
Sec. 501.8 Clerk of the office of the appellate boards, docket of
proceedings, records.
(a) Location and Business Hours. The Office of the Clerk of the
Appellate Boards is located at 200 Constitution Avenue, NW.,
Washington, DC 20210. The Office of the Clerk is open during business
hours on all days except Saturdays, Sundays and Federal holidays, from
8:30 a.m. to 5 p.m.
(b) Docket. The Clerk will maintain a docket containing a record of
all proceedings before the Board. Each docketed appeal will be assigned
a number in chronological order based upon the date on which the notice
of appeal is received. While the Board generally hears appeals in the
order docketed, the Board retains discretion to change the order in
which a particular appeal will be considered. The Clerk will prepare a
calendar of cases submitted or awaiting oral argument and such other
records as may be required by the Board.
(c) Publication of Decisions. Final decisions of the Board will be
published in such form as to be readily available for inspection by the
general public.
Sec. 501.9 Representation, appearances and fees.
(a) Representation. In any proceeding before the Board, an
Appellant may appear in person or by appointing a duly authorized
individual as his or her Representative.
(1) Counsel. The designated Representative may be an attorney who
has been admitted to practice before the Supreme Court of the United
States or the highest court of any state, the District of Columbia, or
a United States territory and who is in good standing with that bar.
(2) Lay Representative. A non-attorney Representative may represent
an Appellant before the Board. He or she may be an accredited
Representative of an employee organization.
(3) Former members of the Board and other employees of the
Department of Labor. A former judge of the Board is not allowed to
participate as counsel or other Representative before the Board in any
proceeding until two years from the termination of his or her status as
a judge of the Board. The practice of a former judge or other former
employee of the Department of Labor is governed by 29 CFR part 0,
subpart B.
(b) Appearance. No individual may appear as a Representative in a
proceeding before the Board without first filing with the Clerk a
written authorization signed by the Appellant to be represented. When
accepted by the Board, such Representative will continue to be
recognized unless the Representative withdraws or abandons such
capacity or the Appellant directs otherwise.
(c) Change of Address. Each Appellant and Representative authorized
to appear before the Board must give the Clerk written notice of any
change to the address or telephone number of the Appellant or
Representative. Such notice must identify the docket number and name of
each pending appeal for that Appellant, or, in the case of a
Representative, in which he or she is a Representative before the
Board. Absent such notice, the mailing of documents to the address most
recently provided to the Board will be fully effective.
(d) Debarment of Counsel or Representative. In any proceeding,
whenever the Board finds that a person acting as counsel or other
Representative or the Director is guilty of unethical or unprofessional
conduct, the Board may order that such person be excluded from further
acting as counsel or Representative of an Appellant in such proceeding.
Such order may be appealed to the Secretary of Labor or his or her
designee, but proceedings before the Board will not be delayed or
suspended pending disposition of such appeal. However, the Board may
suspend the proceeding of an appeal for
[[Page 35111]]
a reasonable time for the purpose of enabling Appellant or the Director
to obtain different counsel or other Representative. Whenever the Board
has issued an order precluding a person from further acting as counsel
or Representative in a proceeding, the Board will, within a reasonable
time, submit to the Secretary of Labor or his or her designee a report
of the facts and circumstances surrounding the issuance of such order.
The Board will recommend what action the Secretary of Labor should take
in regard to the appearance of such person as counsel or Representative
in other proceedings before the Board. Before any action is taken
debarring a person as counsel or Representative from other proceedings,
he or she will be furnished notice and the opportunity to be heard on
the matter.
(e) Fees for Attorney, Representative, or Other Services. No claim
for a fee for legal or other service in connection with a proceeding
before the Board is valid unless approved by the Board. Under 18 U.S.C.
292, collecting a fee without the approval of the Board may constitute
a misdemeanor, subject to fine or imprisonment for up to a year or
both. No contract for a stipulated fee or on a contingent fee basis
will be approved by the Board. No fee for service will be approved
except upon written application to the Clerk, supported by a statement
of the extent and nature of the necessary work performed before the
Board on behalf of the Appellant. The fee application will be served by
the Clerk on the Appellant and a time set in which a response may be
filed. Except where such fee is de minimis, the fee request will be
evaluated with consideration of the following factors:
(1) Usefulness of the Representative's services;
(2) The nature and complexity of the appeal;
(3) The capacity in which the Representative has appeared;
(4) The actual time spent in connection with the Board appeal; and
(5) Customary local charges for similar services.
[FR Doc. E8-13910 Filed 6-19-08; 8:45 am]
BILLING CODE 4510-23-P