82 FR 43695 - Procedural Rules and Regulations
NATIONAL LABOR RELATIONS BOARD Federal Register Volume 82, Issue 180 (September 19, 2017)
Federal Register Volume 82, Issue 180 (September 19, 2017)
| Page Range | 43695-43697 | |
| FR Document | 2017-19783 |
[Federal Register Volume 82, Number 180 (Tuesday, September 19, 2017)] [Rules and Regulations] [Pages 43695-43697] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2017-19783] ======================================================================= ----------------------------------------------------------------------- NATIONAL LABOR RELATIONS BOARD 29 CFR Part 102 RIN 3142-AA10 Procedural Rules and Regulations AGENCY: National Labor Relations Board. ACTION: Final rule. ----------------------------------------------------------------------- SUMMARY: The National Labor Relations Board amends its procedural rules and regulations to include testimony transmitted by videoconference, and amicus brief filings. DATES: This rule is effective on September 29, 2017. FOR FURTHER INFORMATION CONTACT: Gary Shinners, Executive Secretary, National Labor Relations Board, 1015 Half Street SE., Washington, DC 20570, (202) 273-3737 (this is not a toll-free number), 1-866-315-6572 (TTY/TDD). SUPPLEMENTARY INFORMATION: Background on the Rulemaking The changes are summarized below: I. Video Conferencing Testimony The Board added language covering procedures applicable to deposition testimony contemporaneously transmitted by videoconference. The procedures cover the filing of applications to take depositions by videoconference, the safeguards required for the taking of videoconference testimony, the timing, method, and bases for filing objections to the admissibility of videoconference testimony, transcription of videoconference testimony, and the payment of witness and court reporter fees associated with the taking of videoconference testimony. II. Amicus Curiae Brief Filings The Board added language setting forth the procedures covering procedures applicable to amicus curiae briefs. The procedures cover the circumstances when motions for permission to file an amicus brief may be filed, the contents of such motions, replies to motions, page length of amicus briefs, parties' answering briefs to amicus briefs, and the solicitation of amicus briefs by the Board. Regulatory Flexibility Act Certification Pursuant to Section 605(b) of the Regulatory Flexibility Act, 5 U.S.C. 605(b), the Agency has determined that these rule amendments will not have a significant impact on a substantial number of small entities. Unfunded Mandates Reform Act of 1995 These rule amendments will not result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions are deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995. Small Business Regulatory Enforcement Fairness Act of 1996 This action is not a major rule as defined by Section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 804. These amendments will not result in an annual effect on the economy of $100,000,000 or more or a major increase in costs or prices, nor will these amendments have significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign- based companies in domestic and export markets. Paperwork Reduction The amended regulations contain no additional information- collection or record-keeping requirements under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501, et seq. Public Participation This rule is published as a final rule. The National Labor Relations Board considers this rule to be a procedural rule which is exempt from notice and public comment, pursuant to 5 U.S.C. 553(b)(3)(A), as a rule of ``agency organization, procedure, or practice.'' If you wish to contact the Agency, please do so at the above listed address. However, before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment--including your personal identifying information--may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. List of Subjects in 29 CFR Part 102 Administrative practice and procedure, Labor management relations. Gary Shinners, Executive Secretary. For the reasons stated in the preamble, the National Labor Relations Board amends 29 CFR part 102 as follows: PART 102--RULES AND REGULATIONS, SERIES 8 0 1. The authority citation for part 102 continues to read as follows: Authority: Sections 1, 6, National Labor Relations Act (29 U.S.C. 151, 156). Section 102.117 also issued under section 552(a)(4)(A) of the Freedom of Information Act, as amended (5 U.S.C. 552(a)(4)(A)), and Section 102.117a also issued under section 552a(j) and (k) of the Privacy Act of 1974 (5 U.S.C. 552a(j) and (k)). 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)). [[Page 43696]] 0 2. Amend Sec. 102.30 by revising paragraphs (a) and (c) through (e) and adding paragraph (g) to read as follows: Sec. 102.30 Depositions, examination of witnesses. * * * * * (a) Applications to take depositions, including deposition testimony contemporaneously transmitted by videoconference, must be in writing and set forth the reasons why the depositions may be taken, the name, mailing address and email address (if available) of the witness, the matters concerning which it is expected the witness will testify, and the time and place proposed for taking the deposition, together with the name and mailing and email addresses of the person before whom it is desired that the deposition be taken (for the purposes of this section hereinafter referred to as the ``officer''). Such application must be made to the Regional Director prior to the hearing, and to the Administrative Law Judge during and subsequent to the hearing but before transfer of the case to the Board pursuant to Sec. 102.45 or Sec. 102.50. Such application must be served on the Regional Director or the Administrative Law Judge, as the case may be, and on all other parties, not less than 7 days (when the deposition is to be taken within the continental United States) and 15 days (if the deposition is to be taken elsewhere) prior to the time when it is desired that the deposition be taken. The Regional Director or the Administrative Law Judge, as the case may be, will upon receipt of the application, if in the Regional Director's or Administrative Law Judge's discretion, good cause has been shown, make and serve on the parties an order specifying the name of the witness whose deposition is to be taken and the time, place, and designation of the officer before whom the witness is to testify, who may or may not be the same officer as that specified in the application. Such order will be served on all the other parties by the Regional Director or on all parties by the Administrative Law Judge. * * * * * (c) At the time and place specified in the order, the officer designated to take the deposition will permit the witness to be examined and cross-examined under oath by all the parties appearing in person or by contemporaneous transmission through videoconference, and testimony shall be transcribed by the officer or under the officer's direction. All objections to questions or evidence will be deemed waived unless made at the examination. The officer will not have power to rule upon any objections but the objections will be noted in the deposition. The testimony must be subscribed by the witness to the satisfaction of the officer who will attach a certificate stating that the witness was duly sworn by the officer, that the deposition is a true record of the testimony and exhibits given by the witness, and that the officer is not of counsel or attorney to any of the parties nor interested in the event of the proceeding or investigation. If the deposition is not signed by the witness because the witness is ill, dead, cannot be found, or refuses to sign it, such fact will be included in the certificate of the officer and the deposition may then be used as fully as though signed. The officer will immediately deliver the transcript, together with the certificate, in person, by registered or certified mail, or by E-File to the Regional Director or Division of Judges' office handling the matter. (d) The Administrative Law Judge will rule upon the admissibility of the deposition or any part of the deposition. A party may object to the admissibility of deposition testimony by videoconference on grounds that the taking of the deposition did not comply with appropriate safeguards as set forth in Sec. 102.35(c), provided that the party opposing the admission of the deposition raised deficiencies in safeguards at the time of the deposition when corrections might have been made. (e) All errors or irregularities in compliance with the provisions of this section will be deemed waived unless a motion to suppress the deposition in whole or part is made with reasonable promptness after such defect is or, with due diligence, might have been ascertained. * * * * * (g) The official record of the deposition testimony will be the official transcript prepared by the officer designated to transcribe the deposition testimony. 0 3. Revise Sec. 102.32 to read as follows: Sec. 102.32 Payment of witness fees and mileage; fees of officer who transcribes deposition or video testimony. Witnesses summoned before the Administrative Law Judge must be paid the same fees and mileage that are paid witnesses in the courts of the United States, and witnesses whose depositions are taken or who testify by videoconference and the officer who transcribes the testimony shall severally be entitled to the same fees as are paid for like services in the courts of the United States, and those fees shall be paid by the party at whose instance the deposition is taken. 0 4. Amend Sec. 102.35 by adding paragraph (c) to read as follows: Sec. 102.35 Duties and powers of Administrative Law Judges; stipulations of cases to Administrative Law Judges or to the Board; assignment and powers of settlement judges; video testimony. * * * * * (c) Upon a showing of good cause based on compelling circumstances, and under appropriate safeguards, the taking of video testimony by contemporaneous transmission from a different location may be permitted. (1) Applications to obtain testimony by videoconference must be presented to the Administrative Law Judge in writing, and the requesting party must simultaneously serve notice of the application upon all parties to the hearing. The application must set forth the compelling circumstances for such testimony, the witness's name and address, the location where the video testimony will be held, the matter concerning which the witness is expected to testify, the conditions in place to protect the integrity of the testimony, the transmission safeguards, and the electronic address from which the video testimony will be transmitted. Such application and any opposition must be made promptly and within such time as not to delay the proceeding. (2) Appropriate safeguards must ensure that the Administrative Law Judge has the ability to assess the witness's credibility and that the parties have a meaningful opportunity to examine and cross-examine the witness, and must include at a minimum measures that ensure that representatives of the parties have the opportunity to be present at the remote location, the judge, participants, and the reporter are able to hear the testimony and observe the witness, the camera view is adjustable to provide a close-up view of counsel and the witness and a panoramic view of the room, exhibits used in the witness's examination are exchanged in advance of the examination, and video technology assistance is available to assist with technical difficulties that arise during the examination. The Administrative Law Judge may also impose additional safeguards. (3) The official record of the videoconference testimony will be the official transcript prepared by the officer designated to transcribe the testimony. 0 5. Amend Sec. 102.46 by revising the section heading and adding paragraph (i) to read as follows: [[Page 43697]] Sec. 102.46 Exceptions and brief in support; answering briefs to exceptions; cross-exceptions and brief in support; answering briefs to cross-exceptions; reply briefs; failure to except; oral argument; filing requirements; amicus curiae briefs. * * * * * (i) Amicus curiae briefs. Amicus curiae briefs will be accepted only by permission of the Board. Motions for permission to file an amicus brief must state the bases of the movant's interest in the case and why the brief will be of benefit to the Board in deciding the matters at issue. Unless the Board directs otherwise, the following procedures will apply. (1) The Board will consider motions to file an amicus brief only when: (a) A party files exceptions to an Administrative Law Judge's decision; or (b) a case is remanded by the court of appeals and the Board requests briefing from the parties. (2) In circumstances where a party files exceptions to an Administrative Law Judge's decision, the motion must be filed with the Office of the Executive Secretary of the Board no later than 42 days after the filing of exceptions, or in the event cross-exceptions are filed, no later than 42 days after the filing of cross-exceptions. Where a case has been remanded by the court of appeals, the motion must be filed no later than 21 days after the parties file statements of position on remand. A motion filed outside these time periods must be supported by a showing of good cause. The motion will not operate to stay the issuance of a Board decision upon completion of the briefing schedule for the parties. (3) The motion must be accompanied by the proposed amicus brief and must comply with the service and form prescribed by Sec. 102.5. The brief may be no more than 25 pages in length. (4) A party may file a reply to the motion within 7 days of service of the motion. A party may file an answering brief to the amicus brief within 14 days of issuance of the Board's order granting permission to file the amicus brief. Replies to an answering brief will not be permitted. (5) The Board may direct the Executive Secretary to solicit amicus briefs. In such cases, the Executive Secretary will specify in the invitation the due date and page length for solicited amicus briefs, and the deadline for the parties to file answering briefs. Absent compelling reasons, no extensions of time will be granted for filing solicited amicus briefs or answering briefs. [FR Doc. 2017-19783 Filed 9-18-17; 8:45 am] BILLING CODE 7545-01-P
![Federal Register / Vol. 82, No. 180 / Tuesday, September 19, 2017 / Rules and Regulations 43695
List of Subjects in 19 CFR Part 12 FOR FURTHER INFORMATION CONTACT: Gary annual effect on the economy of
Cultural property, Customs duties and Shinners, Executive Secretary, National $100,000,000 or more or a major
inspection, Imports, Prohibited Labor Relations Board, 1015 Half Street increase in costs or prices, nor will
merchandise. SE., Washington, DC 20570, (202) 273– these amendments have significant
3737 (this is not a toll-free number), 1– adverse effects on competition,
Amendment to CBP Regulations 866–315–6572 (TTY/TDD). employment, investment, productivity,
For the reasons set forth above, part SUPPLEMENTARY INFORMATION: innovation, or on the ability of United
12 of Title 19 of the Code of Federal States-based companies to compete with
Background on the Rulemaking foreign-based companies in domestic
Regulations (19 CFR part 12), is
amended as set forth below. The changes are summarized below: and export markets.
PART 12—SPECIAL CLASSES OF I. Video Conferencing Testimony Paperwork Reduction
MERCHANDISE The Board added language covering The amended regulations contain no
procedures applicable to deposition additional information-collection or
■ 1. The general authority citation for testimony contemporaneously
part 12 and the specific authority record-keeping requirements under the
transmitted by videoconference. The Paperwork Reduction Act of 1995, 44
citation for § 12.104g continue to read as procedures cover the filing of
follows: U.S.C. 3501, et seq.
applications to take depositions by
Authority: 5 U.S.C. 301; 19 U.S.C. 66, videoconference, the safeguards Public Participation
1202 (General Note 3(i), Harmonized Tariff required for the taking of
Schedule of the United States (HTSUS)), videoconference testimony, the timing, This rule is published as a final rule.
1624; method, and bases for filing objections The National Labor Relations Board
to the admissibility of videoconference considers this rule to be a procedural
* * * * * rule which is exempt from notice and
Sections 12.104 through 12.104i also testimony, transcription of
issued under 19 U.S.C. 2612; videoconference testimony, and the public comment, pursuant to 5 U.S.C.
payment of witness and court reporter 553(b)(3)(A), as a rule of ‘‘agency
* * * * * organization, procedure, or practice.’’ If
fees associated with the taking of
§ 12.104(g) [Amended] videoconference testimony. you wish to contact the Agency, please
do so at the above listed address.
■ 2. In § 12.104g, paragraph (a), the table II. Amicus Curiae Brief Filings However, before including your address,
is amended in the entry for ‘‘Mali’’ by:
■ a. In the column headed ‘‘Cultural The Board added language setting phone number, email address, or other
Property,’’ after the word ‘‘century’’ add forth the procedures covering personal identifying information in your
the following words: ‘‘, and ethnological procedures applicable to amicus curiae comment, you should be aware that
materials dating between the twelfth briefs. The procedures cover the your entire comment—including your
and twentieth centuries’’, and circumstances when motions for personal identifying information—may
■ b. In the column headed ‘‘Decision permission to file an amicus brief may be made publicly available at any time.
No.,’’ by removing ‘‘12–14’’ and be filed, the contents of such motions, While you can ask us in your comment
replacing it with ‘‘17–12’’. replies to motions, page length of to withhold your personal identifying
amicus briefs, parties’ answering briefs information from public review, we
Dated: September 15, 2017. cannot guarantee that we will be able to
to amicus briefs, and the solicitation of
Ronald D. Vitiello, do so.
amicus briefs by the Board.
Acting Deputy Commissioner, U.S. Customs
and Border Protection. Regulatory Flexibility Act Certification List of Subjects in 29 CFR Part 102
Approved: Pursuant to Section 605(b) of the Administrative practice and
Timothy E. Skud, Regulatory Flexibility Act, 5 U.S.C. procedure, Labor management relations.
Deputy Assistant Secretary of the Treasury. 605(b), the Agency has determined that
these rule amendments will not have a Gary Shinners,
[FR Doc. 2017–20056 Filed 9–15–17; 4:15 pm]
significant impact on a substantial Executive Secretary.
BILLING CODE 9111–14–P
number of small entities.
For the reasons stated in the
Unfunded Mandates Reform Act of 1995 preamble, the National Labor Relations
NATIONAL LABOR RELATIONS Board amends 29 CFR part 102 as
BOARD These rule amendments will not
result in the expenditure by state, local, follows:
29 CFR Part 102 and tribal governments, in the aggregate, PART 102—RULES AND
or by the private sector, of $100,000,000 REGULATIONS, SERIES 8
RIN 3142–AA10 or more in any one year, and it will not
Procedural Rules and Regulations significantly or uniquely affect small
governments. Therefore, no actions are ■ 1. The authority citation for part 102
AGENCY: National Labor Relations deemed necessary under the provisions continues to read as follows:
Board. of the Unfunded Mandates Reform Act Authority: Sections 1, 6, National Labor
ACTION: Final rule. of 1995. Relations Act (29 U.S.C. 151, 156). Section
asabaliauskas on DSKBBXCHB2PROD with RULES
102.117 also issued under section
SUMMARY: The National Labor Relations Small Business Regulatory Enforcement 552(a)(4)(A) of the Freedom of Information
Board amends its procedural rules and Fairness Act of 1996 Act, as amended (5 U.S.C. 552(a)(4)(A)), and
regulations to include testimony Section 102.117a also issued under section
This action is not a major rule as 552a(j) and (k) of the Privacy Act of 1974 (5
transmitted by videoconference, and defined by Section 804 of the Small U.S.C. 552a(j) and (k)). Sections 102.143
amicus brief filings. Business Regulatory Enforcement through 102.155 also issued under section
DATES: This rule is effective on Fairness Act of 1996, 5 U.S.C. 804. 504(c)(1) of the Equal Access to Justice Act,
September 29, 2017. These amendments will not result in an as amended (5 U.S.C. 504(c)(1)).
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![Federal Register / Vol. 82, No. 180 / Tuesday, September 19, 2017 / Rules and Regulations 43697
§ 102.46 Exceptions and brief in support; NATIONAL LABOR RELATIONS ■ 2. Amend § 102.21 by revising the
answering briefs to exceptions; cross- BOARD second sentence to read as follows:
exceptions and brief in support; answering
briefs to cross-exceptions; reply briefs; 29 CFR Part 102 § 102.21 Where to file; service upon the
failure to except; oral argument; filing parties; form.
requirements; amicus curiae briefs. RIN 3142–AA09 * * * Immediately upon the filing of
* * * * * the answer, Respondent shall serve a
(i) Amicus curiae briefs. Amicus Procedural Rules and Regulations;
copy thereof on the other parties. * * *
curiae briefs will be accepted only by Corrections
■ 3. Amend § 102.30 by revising the first
permission of the Board. Motions for AGENCY: National Labor Relations sentence of paragraph (c) to read as
permission to file an amicus brief must Board. follows:
state the bases of the movant’s interest
Final rule; correcting
ACTION:
in the case and why the brief will be of § 102.30 Depositions, examination of
amendments. witnesses.
benefit to the Board in deciding the
matters at issue. Unless the Board SUMMARY: On March 6, 2017, the * * * * *
directs otherwise, the following National Labor Relations Board revised (c) At the time and place specified in
procedures will apply. its rules and regulations. Those the order, the officer designated to take
(1) The Board will consider motions revisions inadvertently failed to include the deposition will permit the witness
to file an amicus brief only when: (a) A certain language, which provided to be examined and cross-examined
party files exceptions to an further clarification with respect to the under oath by all the parties appearing,
Administrative Law Judge’s decision; or prohibition on producing files and and the witness’s testimony will be
(b) a case is remanded by the court of documents, and the prohibition on reduced to type-writing by the officer or
appeals and the Board requests briefing testifying. This document corrects that under his/her direction. * * *
from the parties. Section, as well as additional * * * * *
(2) In circumstances where a party inadvertent errors that appear ■ 4. Amend § 102.65 by revising the
files exceptions to an Administrative throughout the revised rules and
Law Judge’s decision, the motion must second and eighth sentences of
regulations. paragraph (a) to read as follows:
be filed with the Office of the Executive
Secretary of the Board no later than 42 DATES: The correcting amendments are § 102.65 Motions; intervention; appeals of
days after the filing of exceptions, or in effective September 19, 2017, but are Hearing Officer’s rulings.
the event cross-exceptions are filed, no applicable beginning March 6, 2017. (a) * * * The Motion shall
later than 42 days after the filing of FOR FURTHER INFORMATION CONTACT: Gary immediately be served on the other
cross-exceptions. Where a case has been Shinners, Executive Secretary, National parties to the proceeding.* * * The
remanded by the court of appeals, the Labor Relations Board, 1015 Half Street Regional Director may rule upon all
motion must be filed no later than 21 SE., Washington, DC 20570, (202) 273– motions filed with him/her, causing a
days after the parties file statements of 3737 (this is not a toll-free number), 1– copy of the ruling to be served on the
position on remand. A motion filed 866–315–6572 (TTY/TDD). parties, or may refer the motion to the
outside these time periods must be SUPPLEMENTARY INFORMATION: On March Hearing Officer, except that if the
supported by a showing of good cause. 6, 2017, the National Labor Relations Regional Director prior to the close of
The motion will not operate to stay the Board revised its rules and regulations the hearing grants a motion to dismiss
issuance of a Board decision upon and inadvertently failed to include the petition, the petitioner may obtain a
completion of the briefing schedule for language in § 102.118. This is the first review of such ruling in the manner
the parties. set of corrections to the NLRB revisions prescribed in § 102.71.* * *
(3) The motion must be accompanied that were published in the Federal * * * * *
by the proposed amicus brief and must Register on February 24, 2017 (82 FR ■ 5. Amend § 102.66 by revising
comply with the service and form 11748).
prescribed by § 102.5. The brief may be paragraph (f) to read as follows:
no more than 25 pages in length. List of Subjects in 29 CFR Part 102
§ 102.66 Introduction of evidence: rights of
(4) A party may file a reply to the Administrative practice and parties at hearing; preclusion; subpoenas;
motion within 7 days of service of the procedure, Labor management relations. oral argument and briefs.
motion. A party may file an answering Accordingly, 29 CFR part 102 is * * * * *
brief to the amicus brief within 14 days corrected by making the following (f) Subpoenas. The Board, or any
of issuance of the Board’s order granting correcting amendments: Member thereof, shall, on the written
permission to file the amicus brief. application of any party, forthwith issue
Replies to an answering brief will not be PART 102—RULES AND subpoenas requiring the attendance and
permitted. REGULATIONS, SERIES 8 testimony of witnesses and the
(5) The Board may direct the production of any evidence, including
Executive Secretary to solicit amicus ■ 1. The authority citation for part 102 books, records, correspondence, or
briefs. In such cases, the Executive continues to read as follows: documents, in their possession or under
Secretary will specify in the invitation Authority: Sections 1, 6, National Labor their control. The Executive Secretary
the due date and page length for Relations Act (29 U.S.C. 151, 156). Section shall have the authority to sign and
asabaliauskas on DSKBBXCHB2PROD with RULES
solicited amicus briefs, and the deadline 102.117 also issued under section issue any such subpoenas on behalf of
for the parties to file answering briefs. 552(a)(4)(A) of the Freedom of Information the Board or any Member thereof. Any
Absent compelling reasons, no Act, as amended (5 U.S.C. 552(a)(4)(A)), and party may file applications for
extensions of time will be granted for Section 102.117a also issued under section
552a(j) and (k) of the Privacy Act of 1974 (5
subpoenas in writing with the Regional
filing solicited amicus briefs or Director if made prior to hearing, or
U.S.C. 552a(j) and (k)). Sections 102.143
answering briefs. with the Hearing Officer if made at the
through 102.155 also issued under section
[FR Doc. 2017–19783 Filed 9–18–17; 8:45 am] 504(c)(1) of the Equal Access to Justice Act, hearing. Applications for subpoenas
BILLING CODE 7545–01–P as amended (5 U.S.C. 504(c)(1)). may be made ex parte. The Regional
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Document Created: 2018-10-24 14:18:24
Document Modified: 2018-10-24 14:18:24
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Final rule. | |
| Dates | This rule is effective on September 29, 2017. | |
| Contact | Gary Shinners, Executive Secretary, National Labor Relations Board, 1015 Half Street SE., Washington, DC 20570, (202) 273-3737 (this is not a toll-free number), 1-866-315-6572 (TTY/TDD). | |
| FR Citation | 82 FR 43695 | |
| RIN Number | 3142-AA10 | |
| CFR Associated | Administrative Practice and Procedure and Labor Management Relations |
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