E9-1832. Revisions of Regulations Concerning Procedures for Electronic Filing

AGENCY:

National Labor Relations Board.

ACTION:

Final rule.

SUMMARY:

The Board is amending regulations concerning the procedures for filing documents with the Agency electronically. The revisions provide that when the document being filed electronically is required to be served on another party to the proceeding, the other party shall be served by electronic mail (e-mail), if possible. If electronic service is not possible, the other party shall be notified by telephone of the substance of the transmitted document and a copy of the document shall be served personally, or by registered mail, certified mail, regular mail, or private delivery service, or, with the consent of the other party, by facsimile transmission.

DATES:

January 30, 2009.

FOR FURTHER INFORMATION CONTACT:

Lester A. Heltzer, Executive Secretary, 202-273-1067.

SUPPLEMENTARY INFORMATION:

Current regulation: Section 102.114 provides that the Agency's Web site (http://www.nlrb.gov) contains certain forms that parties or other persons are permitted to file with the Agency electronically. Parties or other persons choosing to utilize those forms to file documents electronically are permitted to do so by following the instructions described on the Web site, notwithstanding any contrary provisions elsewhere in these rules. In the event the document being filed electronically is required to be served on another party to a proceeding, the other party shall be notified by telephone of the substance of the transmitted document and a copy of the document shall be served by personal service no later than the next day, by overnight delivery service, or, with the permission of the party receiving the document, by facsimile transmission.

Proposed revision: The Board first began e-Filing as a pilot project in 2003. Since that time the scope of e-Filing has been expanded significantly, and more than 12,000 documents have been filed electronically with the Board and its Regional Offices. During that same time period it has become clear that the use of e-mail has become a well established method of transacting business by both the Government and the public it serves. Accordingly, in August 2008 the Board initiated another pilot project to test the ability of the Agency to issue decisions electronically and serve the parties via e-mail.

In addition, when the e-Filing project first began, the Board adapted the expedited service requirements applicable to filings by personal service and required documents filed electronically to be served on other parties by overnight delivery service. As e-Filing has become an accepted method of filing documents with the Agency, it has become increasingly clear that these expedited service requirements impose a substantial cost on all parties and are a significant impediment to greater use of e-Filing. Also, these expedited service requirements are inconsistent with the practices adopted by the Federal Court system for its e-Filing procedures.

Based upon the success of the e-Filing and the e-Issuance/e-Service projects, and in an effort to align Board procedures more closely with those of the Federal Court system, the Board has now decided to allow parties to serve documents upon each other electronically, using e-mail, and to eliminate the expedited service requirements that have proven to be an unnecessary burden. Given the widely accepted use of e-mail as a tool of business communication, allowing electronic service via e-mail will address the concerns that led the Board to adopt the original expedited service requirements. In those limited circumstances where electronic service is not possible, the Board is of the view that notification by telephone, followed by service by traditional means, will provide adequate notice of the filing and protect the rights of the parties.

Administrative Procedure Act

Because the change involves rules of agency organization, procedure or practice, the Agency is not required to publish it for comment under Section 553 of the Administrative Procedure Act (5 U.S.C. 553).

Regulatory Flexibility Act

Because no notice of proposed rule-making is required for procedural rules, the requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) pertaining to regulatory flexibility analysis do not apply to these rules. However, even if the Regulatory Flexibility Act were to apply, the NLRB certifies that these changes will not have a significant economic impact on small business entities since the changes do not impose any additional economic cost.

Small Business Regulatory Enforcement Fairness Act

Because the rule relates to Agency procedure and practice and merely modifies the agency's existing filing procedures, the Board has determined that the Congressional review provisions of the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 801) do not apply.

Paperwork Reduction Act

This part does not impose any reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995.

Lists of Subjects in 29 CFR Part 102

• Administrative practice and procedure
• Labor management relations

For the reasons set forth above, the NLRB is amending 29 CFR Chapter I, Part 102, as follows:

PART 102—RULES AND REGULATIONS SERIES 8

1. The authority citation for part 102 continues to read as follows:

Authority: Section 6, National Labor Relations Act, as amended (29 U.S.C. 151, 156). Section 102.117(c) also issued under Section 552(a)(4)(A) of the Freedom of Information Act, as amended (5 U.S.C. 552(a)(4)(A)). Sections 102.143 through 102.155 also issued under Section 504(c)(1) of the Equal Access to Justice Act, as amended (5 U.S.C. 504(c)(1)).

2. In § 102.114 revise paragraphs (a) and (i) to read as follows:

(a) Service of documents by a party on other parties may be made personally, or by registered mail, certified mail, regular mail, electronic mail (if the document was filed electronically) or private delivery service. Service of documents by a party on other parties by any other means, including facsimile transmission, is permitted only with the consent of the party being served. Unless otherwise specified elsewhere in these rules, service on all parties shall be made in the same manner as that utilized in filing the document with the Board, or in a more expeditious manner; however, when filing with the Board is done by hand, the other parties shall be promptly notified of such action by telephone, followed by service of a copy in a manner designed to insure receipt by them by the close of the next business day. The provisions of this section apply to the General Counsel after a complaint has issued, just as they do to any other party, except to the extent that the provisions of §§ 102.113(a) or 102.113(c) provide otherwise.

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(i) The Agency's Web site (http://www.nlrb.gov) contains certain forms that parties or other persons are permitted to file with the Agency electronically. Parties or other persons choosing to utilize those forms to file documents electronically are permitted to do so by following the instructions described on the Web site, notwithstanding any contrary provisions elsewhere in these rules. In the event the document being filed electronically is required to be served on another party to a proceeding, the other party shall be served by electronic mail (e-mail), if possible. If the other party does not have the ability to receive electronic service, the other party shall be notified by telephone of the substance of the transmitted document and a copy of the document shall be served by personal service no later than the next day, by overnight delivery service, or, with the permission of the party receiving the document, by facsimile transmission.

Dated: Washington, DC, January 23, 2009.

By Direction of the Board.

Lester A. Heltzer,

Executive Secretary.