Negotiability Proceedings

• Citation: 88 FR 62445
• Published date: 12 September 2023
• Record Number: 2023-19269
• Court: Federal Labor Relations Authority
• Section: Rules and Regulations

This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents.

Rules and Regulations Federal Register

62445

Vol. 88, No. 175

Tuesday, September 12, 2023

FEDERAL LABOR RELATIONS

AUTHORITY

5 CFR Part 2424

Negotiability Proceedings

AGENCY

: Federal Labor Relations

Authority.

ACTION

: Final rule.

SUMMARY

: The Federal Labor Relations

Authority (FLRA) is revising the

regulations governing negotiability

appeals to better ‘‘expedite

proceedings,’’ consistent with

Congress’s direction. The final rule is

designed to benefit the FLRA’s parties

by clarifying various matters and

streamlining the adjudication process

for negotiability appeals, resulting in

more timely decisions.

DATES

:

Effective Date: This rule is effective

October 12, 2023.

Applicability Date: This part applies

to all petitions for review filed on or

after October 12, 2023.

FOR FURTHER INFORMATION CONTACT

:

Thomas Tso, Solicitor, at ttso@flra.gov

or at (771) 444–5779.

SUPPLEMENTARY INFORMATION

: The FLRA

proposed revisions to part 2424 of the

Authority’s Regulations concerning

negotiability proceedings. The proposed

rule was published in the Federal

Register, and public comments were

solicited on the proposed changes (84

FR 70439) (Dec. 23, 2019). After the

initial public comment period closed,

the FLRA reopened the comment period

for an additional round of public

feedback (85 FR 4913) (Jan. 28, 2020).

(From this point forward, the printed

statements at 84 FR 70439 and 85 FR

4913 are collectively referred to as ‘‘the

proposal notices.’’) Comments were

received from unions, agencies, labor-

management practitioners, and other

individuals. All timely comments have

been considered prior to publishing the

final rule, and virtually all comments,

including all significant comments, are

addressed with specificity below.

Changes from the proposed rule are also

discussed below, and where those

changes relate to specific comments, the

connection between the changes and the

comments is noted.

Significant Changes

In §§ 2424.22 and 2424.25, the final

rule changes the procedures through

which an exclusive representative may

divide or sever a proposal or provision

into distinct parts, in order to seek

separate negotiability determinations on

particular matters standing alone.

Section 2424.10 of the final rule does

not remove references to the

Collaboration and Alternative Dispute

Resolution Program. Section 2424.21 of

the final rule does not require an

exclusive representative to file a

petition for review within sixty days

after the expiration of the deadline for

an agency to respond to a request for a

written allegation concerning the duty

the bargain. Section 2424.22 of the final

rule does not require an exclusive

representative to respond, in a petition

for review, to specific claims in an

agency’s allegation concerning the duty

to bargain or an agency head’s

disapproval. Section 2424.26 of the final

rule does not shorten the time limit for

filing an agency’s reply from fifteen

days to ten days. Section 2424.41 of the

final rule does not require an exclusive

representative to report to a Regional

Director an agency’s failure to comply

with a negotiability decision and order

within thirty days after the expiration of

the 60-day period for seeking judicial

review. Unlike the potentially broad

revisions contemplated in the proposal

notices, the final rule leaves § 2424.50 of

the Authority Regulations (concerning

compelling need) mostly unchanged.

Miscellaneous Comments and

Responses

Some of the comments responding to

the proposal notices did not concern a

specific section of the proposed rules.

One commenter opposed any changes to

existing negotiability procedures

because, in the commenter’s view, the

process could be streamlined by

employing sufficient staff. As this

comment was not germane to the

proposed rule, it did not influence the

final rule.

The Office of Personnel Management

(OPM) requested that the final rule

include a provision requiring that, if a

petition for review raises a negotiability

dispute concerning a statute that OPM

administers, an executive order that

OPM administers, or a government-wide

regulation that OPM promulgated, then

the Authority must formally notify OPM

and provide OPM an opportunity to

intervene in the case.

Section 7105(i) of the Federal Service

Labor-Management Relations Statute

(the Statute) states that ‘‘the Authority

may request from the Director of [OPM]

an advisory opinion concerning the

proper interpretation of rules,

regulations, or policy directives issued

by [OPM] in connection with any matter

before the Authority.’’ 5 U.S.C. 7105(i)

(emphasis added). Admittedly, Section

7105(i) does not address the full scope

of the matters raised in OPM’s

comment—such as statutes or executive

orders that OPM administers. However,

regarding government-wide regulations

that OPM issued, Section 7105(i)

indicates that Congress did not think it

necessary either to require the Authority

to seek OPM’s views in every case, or

to provide OPM an opportunity to

intervene in cases. In addition, when

Congress thought OPM should have the

right to intervene in a particular class of

civil-service cases—for example, certain

cases before the Merit Systems

Protection Board involving the

‘‘interpretation or application of any

civil[-]service law, rule, or regulation,

under the jurisdiction of [OPM]’’—

Congress provided for intervention in

statutory text. 5 U.S.C. 7701(d)(1).

Further, nothing in the Statute,

including Section 7105(i), prevents the

Authority from requesting an advisory

opinion from OPM on statutes or

executive orders that OPM administers,

where such an opinion would aid the

Authority in its decision making.

Moreover, § 2429.9 of the Authority’s

Regulations allows any interested

person to petition for the opportunity to

present views as amicus curiae in a

particular case, and OPM may petition

to present its views through that

provision. 5 CFR 2429.9.

For these reasons, the final rule does

not include a provision concerning

notification of, and intervention by,

OPM in particular cases.

Sectional Analyses, Comments, and

Responses

The regulatory analyses provided in

the proposal notices about wording that

VerDate Sep<11>2014 16:24 Sep 11, 2023 Jkt 259001 PO 00000 Frm 00001 Fmt 4700 Sfmt 4700 E:\FR\FM\12SER1.SGM 12SER1

lotter on DSK11XQN23PROD with RULES1

62446

Federal Register / Vol. 88, No. 175 / Tuesday, September 12, 2023 / Rules and Regulations

has not changed from the proposed rule

to the final rule should be understood

to apply to the unchanged portions of

the final rule. Such previous analyses

will not be repeated here, although they

continue to apply. Further sectional

analyses of the amendments and

revisions to part 2424, Negotiability

Proceedings—including public

comments and responses to those

comments—follow:

Part 2424—Negotiability Proceedings

Section 2424.1

None of the public comments

addressed § 2424.1. The final rule is the

same as the proposed rule.

Section 2424.2

Comments and Responses

One commenter stated that the

sentence listing examples of bargaining

obligation disputes should say that such

disputes include, but may not be limited

to, the specified examples. This

requested change is unnecessary

because the list of examples does not

purport to be exhaustive. The same

commenter asked that the examples be

joined by ‘‘or’’ rather than ‘‘and.’’ The

commenter correctly notes that each

example is sufficient, on its own, to

establish a bargaining obligation

dispute. However, this requested change

is unnecessary because each example is

part of a group of similar terms, so using

‘‘and’’ is appropriate. Therefore, these

requested changes were not adopted.

Another commenter requested that

the examples of bargaining obligation

disputes be expanded from the

proposed rule so that the examples still

included situations where parties

disagree about whether a change to

conditions of employment was de

minimis. As discussed in connection

with § 2424.2(a)(2) below, this requested

change is incorporated into the final

rule.

A third commenter stated that it does

not interpret the changes to the

examples in this section to alter the

legal definition of the defined terms. To

the extent that the commenter means

that the changes to examples are

intended to better illustrate the existing

definitions of these terms, rather than to

change the operative definitions of the

terms, the commenter is correct. This

commenter also objected to adding

executive orders to the examples of

sources of negotiability disputes. As

explained further below in connection

with § 2424.2(c), executive orders are

not included among the examples of

sources of negotiability disputes in the

final rule. This commenter also asked

that, where government-wide rules or

regulations are listed as sources of

negotiability disputes, the rule be

amended to acknowledge that

government-wide rules or regulations

can be contrary to statutory law.

However, this requested change is

unnecessary because it is irrelevant to

the existence of a negotiability dispute.

Regardless of whether a government-

wide rule or regulation is consistent

with, or contrary to, a statute, a

disagreement between parties about

whether a proposal or provision is

consistent with a government-wide rule

or regulation will establish that a

negotiability dispute exists.

Further Analysis

As in the proposed rule, § 2424.2(a) of

the final rule clarifies the definition of

a ‘‘bargaining obligation dispute.’’

However, in response to a comment

seeking further examples, § 2424.2(a) of

the final rule includes two additional

examples, rather than (as in the

proposed rule) one additional example.

Specifically, § 2424.2(a)(2) of the final

rule identifies, as examples of

bargaining obligation disputes,

disagreements concerning agency claims

that bargaining is not required ‘‘because

there has not been a change in

bargaining-unit employees’ conditions

of employment,’’ see, e.g., NFFE,

IAMAW, Fed. Dist. 1, Fed. Loc. 1998, 69

FLRA 586, 589 (2016) (analyzing

agency’s contested claim that it made no

changes to conditions of employment as

a bargaining obligation dispute)

(Member Pizzella concurring in part and

dissenting in part on other grounds), as

well as claims that bargaining is not

required ‘‘because the effect of the

change is de minimis,’’ e.g., AFGE, Loc.

2139, Nat’l Council of Field Lab. Locs.,

61 FLRA 654, 656 (2006) (‘‘The claim

that a change in employees’ conditions

of employment is de minimis is a

bargaining obligation dispute, rather

than a negotiability dispute.’’). Section

2424.2(a)(3) of the final rule is the same

as the proposed rule and identifies, as

an example of a bargaining obligation

dispute, a disagreement about an agency

claim that ‘‘[t]he exclusive

representative is attempting to bargain

at the wrong level of the agency.’’

Unlike the proposed rule, the final rule

does not revise the text currently

located at 5 CFR 2424.2(b).

Section 2424.2(c) of the final rule

differs from the proposed rule in three

respects. First, whereas § 2424.2(c)(2) of

the proposed rule identified, as an

example of a negotiability dispute, a

disagreement concerning whether a

proposal or provision ‘‘[d]irectly affects

bargaining-unit employees’ condition of

employment,’’ § 2424.2(c)(2) of the final

rule removes the word ‘‘[d]irectly.’’ The

word ‘‘[d]irectly’’ was removed because

a negotiability dispute exists when there

is a disagreement about whether a

proposal or provision has any effect on

bargaining-unit employees’ conditions

of employment—not only when there is

disagreement about direct effects. See,

e.g., NAGE, Loc. R1–144, 43 FLRA 1331,

1333 (1992); id. at 1335 (agency argued

that proposals did not concern

conditions of employment of

bargaining-unit employees), 1350–51

(Authority found four proposals

‘‘nonnegotiable’’ because they did not

concern the conditions of employment

of bargaining-unit employees). Second,

unlike § 2424.2(c) of the proposed rule,

§ 2424.2(c) of the final rule does not

include executive orders among the

examples of sources of negotiability

disputes. However, the omission of this

example does not prohibit parties from

arguing that a proposal’s or provision’s

inconsistency with an executive order

gives rise to a negotiability dispute.

Third, because the executive-order

example was removed, § 2424.2(c)(7) of

the proposed rule has become

§ 2424.2(c)(6) of the final rule, and

§ 2424.2(c)(8)(i) through (v) of the

proposed rule have become

§ 2424.2(c)(7)(i) through (v) of the final

rule. The remaining changes to the text

currently located at 5 CFR 2424.2(c) are

the same in the final rule as in the

proposed rule.

Section 2424.2(e) and (f) are the same

in the final rule as in the proposed rule.

The proposal notices explained that,

although the proposed rule contained

revised wording that would

‘‘[e]liminat[e] severance altogether,’’

‘‘the FLRA [wa]s also considering

another possible option’’ that would not

completely eliminate severance. 84 FR

at 70439. Unlike the proposed rule, the

final rule does not remove the existing

definition of ‘‘[s]everance,’’ located at 5

CFR 2424.2(h). Because the final rule

does not remove the ‘‘[s]everance’’

definition, the final rule also does not

redesignate the definition of ‘‘[w]ritten

allegation concerning the duty to

bargain’’ as § 2424.2(h)—which is a

change from the proposed rule. Under

the final rule, the definition of

‘‘[w]ritten allegation concerning the

duty to bargain’’ maintains its existing

location at 5 CFR 2424.2(i).

Section 2424.10

Comments and Responses

Three commenters opposed adding to

this section new wording that specifies

that Collaboration and Alternative

Dispute Resolution (CADR) assistance is

provided at the discretion of the

VerDate Sep<11>2014 16:24 Sep 11, 2023 Jkt 259001 PO 00000 Frm 00002 Fmt 4700 Sfmt 4700 E:\FR\FM\12SER1.SGM 12SER1

lotter on DSK11XQN23PROD with RULES1

62447

Federal Register / Vol. 88, No. 175 / Tuesday, September 12, 2023 / Rules and Regulations

Authority. The final rule does not

include the wording that assistance is

provided ‘‘in the discretion of the

Authority’’; however, the Authority

disagrees with the commenters’

assertions that, as long as the parties

agree to CADR assistance, the decision

about whether a dispute enters the

CADR Program should not be at the

Authority’s discretion. For example, the

Authority may not have resources

available to provide CADR assistance

every time it is requested. If the

Authority declines to grant CADR

assistance, that action in no way

prevents parties from agreeing to seek

alternative dispute resolution services

from entities outside the FLRA—such as

the Federal Mediation and Conciliation

Service.

One commenter appeared to believe

that, under the proposed rule, after a

petition for review had been filed, the

Authority could require the parties to

participate in alternative dispute

resolution without their consent. To the

contrary, CADR assistance will continue

to require the consent of the parties.

Another commenter expressed

reservations about an addition in the

proposed rule that stated that CADR

assistance would be provided as

resources permit. Because the FLRA is

unable to offer any services beyond the

capacity of its available resources, this

wording remains part of the final rule,

as discussed further below.

A third commenter expressed

disappointment that the proposed rule

removed references to the CADR

Program. As explained further below,

the final rule does not remove those

references.

Further Analysis

Unlike the proposed rule, the heading

of § 2424.10 in the final rule will remain

the same as the existing heading of 5

CFR 2424.10. In another variance from

the proposed rule, § 2424.10 of the final

rule is amended to state that parties may

contact either the CADR Program or the

Office of Case Intake and Publication to

seek CADR services. Updated phone

numbers are added to the final rule.

Further, whereas the proposed rule

removed all direct references to CADR,

§ 2424.10 of the final rule retains all of

the direct references to CADR that

currently appear in 5 CFR 2424.10. As

in the proposed rule, § 2424.10 of the

final rule clarifies that CADR

representatives will attempt to assist

parties to resolve their disputes ‘‘as

resources permit.’’

Section 2424.11

Comments and Responses

Two commenters supported requiring

that requests for allegations concerning

the duty to bargain be in writing, and

like the proposed rule, the final rule

incorporates this requirement.

OPM requested that this section be

amended to state that any written

agency responses to an exclusive

representative’s proposals—including

agency counterproposals—may contain

an unrequested agency allegation

concerning the duty the bargain.

Because the existing wording does not

limit the types of written sources that

may contain an unrequested agency

allegation concerning the duty to

bargain, the requested change is

unnecessary. Therefore, the final rule

does not adopt that requested change.

OPM also requested that this section

be amended to specify that an agency

allegation concerning the duty to

bargain need contain only an assertion

of nonnegotiability and the statutory

basis, or other authority, supporting that

assertion. OPM contended that the rule

should make clear that no further detail

is necessary to trigger the time limits for

filing a petition for review under

§ 2424.21. The existing wording at 5

CFR 2424.11 does not specify the level

of detail required to trigger the time

limits in § 2424.21, except to say that

agency allegations must be in writing

and must concern the duty to bargain.

The FLRA believes that case-by-case

adjudication continues to provide a

superior method for determining

precisely when an agency allegation has

triggered the time limits in § 2424.21,

and the final rule has not adopted

OPM’s suggested modification.

Further Analysis

The final rule is the same as the

proposed rule.

Section 2424.21

Comments and Responses

Six commenters addressed the change

in the proposed rule that, if an agency

fails to respond within ten days to an

exclusive representative’s written

request for a written agency allegation

concerning the duty to bargain, then the

exclusive representative may file a

petition, but only within the next sixty

days. One union commenter stated that

the sixty-day timeline was adequate

under these circumstances. Three

agency commenters stated that imposing

the sixty-day timeline would ensure that

negotiability disputes did not linger

longer than necessary. OPM requested

that this deadline be shortened to thirty

days. One union commenter opposed

the sixty-day deadline because,

according to the commenter, this change

rewarded an agency’s failure to respond

to a written request for an allegation of

nonnegotiability by nevertheless

imposing a deadline on the exclusive

representative for filing a petition for

review. As discussed further below, the

final rule does not impose this sixty-day

deadline because it is not clear that

there is currently a problem with

exclusive representatives waiting for

unnecessarily lengthy periods of time to

file petitions after requesting, but not

receiving, written agency allegations.

Two commenters expressed concern

that an agency does not face adverse

consequences for failing to provide a

written allegation concerning the duty

the bargain within ten days of the

exclusive representative’s written

request for such an allegation. One

union commenter suggested that, to

provide an adverse consequence for an

agency in these circumstances, for each

day that the agency’s requested

allegation is late—that is, beyond the

ten-day deadline for providing such an

allegation—the exclusive representative

should receive an additional day for

filing its petition. This suggestion would

violate Section 7117(c)(2) of the Statute,

which requires a fifteen-day deadline

for filing a petition for review after an

agency alleges that the duty to bargain

does not extend to any matter. 5 U.S.C.

7117(c)(2). Thus, this suggestion has not

been adopted. The same union

commenter was also concerned that

fifteen days would be inadequate for

filing a petition that satisfies certain

new content requirements that appeared

in § 2424.22(d) of the proposed rule. As

discussed later in connection with

§ 2424.22(d), the proposed new content

requirements are not part of the final

rule, so this concern has been mooted.

One commenter suggested that the

Authority rewrite the section so that

none of the deadlines depend on when

the exclusive representative receives, or

does not receive, written agency

allegations. According to this

commenter, the complexity of the

section in distinguishing between

responses or non-responses to written

requests for allegations, solicited or

unsolicited allegations, and written

versus unwritten allegations creates

unnecessary formality that will confuse

many negotiators, who are often not

lawyers. The commenter suggested that

the section state simply that an

exclusive representative may file an

appeal at any time after the

representative is placed on notice that

the agency considers a proposal

VerDate Sep<11>2014 16:24 Sep 11, 2023 Jkt 259001 PO 00000 Frm 00003 Fmt 4700 Sfmt 4700 E:\FR\FM\12SER1.SGM 12SER1

lotter on DSK11XQN23PROD with RULES1

62448

Federal Register / Vol. 88, No. 175 / Tuesday, September 12, 2023 / Rules and Regulations

nonnegotiable, even if the exclusive

representative has not requested a

written allegation of nonnegotiability.

This suggestion would violate Section

7117(c)(2) of the Statute, which requires

a fifteen-day deadline for filing a

petition for review after an agency

alleges that the duty to bargain does not

extend to any matter. 5 U.S.C.

7117(c)(2). Accordingly, this suggestion

has not been adopted.

One union commenter opposed

§ 2424.21(b)(1)(i) of the proposed rule,

which stated that, if the agency serves

a written allegation on the exclusive

representative more than ten days after

receiving a written request for such

allegation, then the petition must be

filed within fifteen days of the service

of that allegation. This union

commenter contended that imposing a

fifteen-day deadline on an exclusive

representative—even when an agency

did not satisfy its obligation to provide

a requested allegation within ten days of

the request—rewards an agency’s

violation of its regulatory obligation to

furnish requested allegations. However,

this commenter did not suggest any

alternative regulatory wording, and as

discussed in the previous two

paragraphs, Section 7117(c)(2) of the

Statute requires a fifteen-day deadline

for filing a petition for review after an

agency alleges that the duty to bargain

does not extend to any matter. 5 U.S.C.

7117(c)(2). As discussed further below,

with some modifications to the wording,

the change identified as

§ 2424.21(b)(1)(i) of the proposed rule

has been adopted as § 2424.21(b)(1) of

the final rule.

OPM suggested that § 2424.21(b)(1)(ii)

of the proposed rule be omitted from the

final rule because it was confusing. As

explained further below, this suggestion

was accepted.

Further Analysis

Unlike the proposed rule, § 2424.21 of

the final rule does not state that if an

agency fails to respond to a written

request for a written allegation within

ten days of the request, then the

exclusive representative may file a

petition, but only within the next sixty

days. Further, to simplify the rule,

§ 2424.21 of the final rule does not

adopt the wording from

§ 2424.21(b)(1)(ii) of the proposed rule,

which described how the Authority

would handle a situation where an

agency served a written allegation on

the exclusive representative more than

ten days after receiving a written request

for such allegation, but the exclusive

representative had already filed a

petition. These proposed changes have

been deliberately omitted from the final

rule. However, § 2424.21 of the final

rule adopts the change from the

proposed rule that, if the agency serves

a written allegation on the exclusive

representative more than ten days after

receiving a written request for such

allegation, and a petition has not yet

been filed, then the petition must be

filed within fifteen days of the service

of that allegation. This change now

appears as § 2424.21(b)(1) in the final

rule.

Section 2424.22

Comments and Responses

OPM suggested that this section

specify that untimely petitions will be

dismissed absent a demonstration of

good cause. Existing procedures for

addressing untimely petitions have

proven adequate, so this suggestion has

not been adopted.

Many of the comments about this

section concerned the proposal to

amend severance procedures. The

proposal notices described two possible

severance-amendment options. Under

‘‘Option 1,’’ severance would be

eliminated altogether by requiring the

exclusive representative to divide

matters into separate proposals or

provisions when filing the petition, and

by precluding severance at later stages

of the proceeding. Under ‘‘Option 2,’’

severance would be available at only

one point in the filing process, and

timely severance requests would be

automatically granted. However, if

severance requests were automatically

granted, then the exclusive

representative would bear certain

burdens to ensure that the record was

sufficient to assess whether the severed

portions were within the duty to bargain

or consistent with law.

One union commenter supported the

portion of ‘‘Option 1’’ that allowed an

exclusive representative to divide

matters into distinct proposals and

provisions at the petition stage, but the

commenter desired another opportunity

for severance later in the process. This

commenter suggested that the exclusive

representative’s response to the agency’s

statement of position should be the later

point for severance. This commenter

supported the portion of ‘‘Option 2’’

that would make severance automatic

because this approach would prevent

severance from becoming its own point

of contention in the proceedings.

Another commenter said that neither

severance option would streamline the

negotiability process because, even after

severance occurred, if only a few words

from a larger proposal or provision were

allegedly nonnegotiable, then that small

portion could cause the entire proposal

or provision to be found nonnegotiable.

However, the consequence that the

commenter identified exists regardless

of severance procedures: Any portion of

a proposal or provision may render the

larger whole deficient. Thus, severance

procedures could not completely

eliminate that risk. If required to choose

between the two options, this

commenter preferred ‘‘Option 1.’’

A commenter suggested that unions

should state, during bargaining, how

they would prefer proposals to be

severed in the event of a negotiability

dispute. The commenter asserted that

this approach would highlight which

portions of proposals were most

important to the union before disputes

reached the formal negotiability process.

However, regulating the methods that

parties use in their bargaining before the

formal negotiability process begins is

beyond the scope of the rule.

An agency commenter supported both

eliminating severance altogether and

prohibiting an exclusive representative

from dividing single proposals from the

bargaining table into multiple parts—to

be considered as distinct proposals—in

a petition. This suggestion is impractical

because, in most cases, an exclusive

representative must choose how much

of the wording from the parties’

negotiations will be set forth in the

petition. In some cases, negotiations

may involve only a few sentences, but

many cases involve multiple pages of

text. It would be inefficient for the rule

to require an exclusive representative to

set forth in the petition all of the text

from the bargaining table, even though

some parts are entirely agreeable to both

parties. Thus, an exclusive

representative must apportion the text

from the bargaining table into proposals

for consideration in a petition.

Another union commenter opposed

making any changes to existing

severance procedures because,

according to this commenter, the Statute

requires an informal process for

presenting arguments to the Authority.

However, the Statute is precise in

delimiting the procedures for

negotiability appeals, and there is

nothing to suggest that the entire

process should be informal. Further, it

is unclear how maintaining or

eliminating severance—which is a

specialized concept in negotiability

law—would promote informality, even

if that were a goal of the negotiability

process. This commenter also

contended that if severance were

eliminated, exclusive representatives

would be unable to salvage negotiable

portions of longer proposals in which

easily isolatable parts were outside the

duty to bargain. This criticism is

VerDate Sep<11>2014 16:24 Sep 11, 2023 Jkt 259001 PO 00000 Frm 00004 Fmt 4700 Sfmt 4700 E:\FR\FM\12SER1.SGM 12SER1

lotter on DSK11XQN23PROD with RULES1

62449

Federal Register / Vol. 88, No. 175 / Tuesday, September 12, 2023 / Rules and Regulations

unwarranted because, under either

Option, an exclusive representative

could submit an easily isolated portion

of disputed text as one proposal, and

divide the remainder of the disputed

text into separate proposals—provided

that all proposals have meaning

standing alone. Moreover, as discussed

in connection with § 2424.25 of the final

rule, a modified severance procedure

will be available when the exclusive

representative files a response to the

agency’s statement of position. Another

agency commenter preferred ‘‘Option 1’’

because the commenter said that

‘‘Option 2’’ would generate additional

disputes over whether an exclusive

representative had satisfied its burdens

after receiving automatic severance.

However, the existing process generates

disputes about whether the Authority

should grant severance. The idea for

automatically granting severance under

‘‘Option 2’’ was premised on a

prediction that there would be fewer

disputes about whether exclusive

representatives had satisfied their

burdens after automatic severance than

there are disputes at present over

whether the Authority should grant

severance. The FLRA adheres to its

predictive judgment that the number of

disputes will decrease if the question of

whether to grant severance is not its

own point of contention.

After consideration of these severance

comments, and as explained further

below, the final rule incorporates

portions of ‘‘Option 1’’ and ‘‘Option 2.’’

At the petition stage, the exclusive

representative will be responsible for

dividing matters into distinct proposals

or provisions, if it desires distinct

negotiability determinations on

particular matters standing alone.

However, when the exclusive

representative files a response to the

agency’s statement of position, there

will be an opportunity to invoke a

modified severance procedure. The

ways in which that procedure has been

modified are discussed in connection

with § 2424.25 of the final rule.

The remaining comments on this

section concerned § 2424.22(d) of the

proposed rule, which required exclusive

representatives to respond—in the

petition for review—to any specific

claims from an agency’s allegation

concerning the duty to bargain, or from

an agency head’s disapproval (the

response requirement).

One union commenter opposed the

response requirement because the

commenter said that the requirement

was overly formalistic, and many union

representatives are not lawyers.

An agency commenter supported the

response requirement on the ground

that it would foster a more prompt and

focused process for resolving

negotiability disputes.

One commenter said the fifteen-day

deadline for filing a petition would not

be sufficient to respond to all of the

specific claims in an agency’s allegation

concerning the duty to bargain, or an

agency head’s disapproval.

Another union commenter stated that

the response requirement would

demand that an exclusive representative

prove that a proposal was negotiable,

rather than require that an agency prove

that it was not.

As explained further below, the final

rule does not adopt § 2424.22(d) of the

proposed rule, so the expressed

concerns about, or support for, the

response requirement are moot.

Further Analysis

The heading and § 2424.22(a) are the

same in the final rule as in the proposed

rule. Like the proposal notices’ ‘‘Option

1,’’ § 2424.22 of the final rule adds a

new paragraph—designated

§ 2424.22(b)—to allow for the division

of matters into proposals or provisions.

If an exclusive representative seeks a

negotiability determination on

particular matters standing alone, then

the exclusive representative will be

required to divide the matters into

separate proposals or provisions when

filing the petition. An exclusive

representative may no longer ask the

Authority for severance at the petition

stage of the negotiability proceedings,

because the exclusive representative is

capable of separating matters into

distinct proposals or provisions when

submitting a petition to the Authority.

However, the final rule also adopts parts

of ‘‘Option 2’’ from the proposal notices.

Specifically, the final rule does not

completely eliminate severance from

negotiability proceedings, although the

exclusive representative may no longer

ask the Authority for severance at the

petition stage. In accordance with the

description of ‘‘Option 2’’ in the

proposal notices, a new sentence has

been added to § 2424.22(b) of the final

rule that did not appear in the proposed

rule. Specifically, § 2424.22(b) of the

final rule states that ‘‘the exclusive

representative will have an opportunity

to divide proposals or provisions into

separate parts when the exclusive

representative files a response under

§ 2424.25.’’ In other words, a modified

severance procedure will be available at

the response stage of the negotiability

proceedings.

Section 2424.22(c) of the final rule

differs from the proposed rule in several

respects. The paragraph identified as

§ 2424.22(c)(3) in the proposed rule is

adopted but redesignated as

§ 2424.22(c)(2)(i) in the final rule. The

paragraph identified as § 2424.22(c)(4)

in the proposed rule is adopted but

redesignated as § 2424.22(c)(3) in the

final rule. The word ‘‘and’’ has been

removed from the end of this paragraph

because an additional paragraph has

been added to § 2424.22(c) of the final

rule. The paragraph identified as

§ 2424.22(c)(5) in the proposed rule is

adopted but redesignated as

§ 2424.22(c)(3)(i) in the final rule, and

the word ‘‘and’’ has been added to the

end of this paragraph to introduce the

final paragraph of § 2424.22(c) of the

final rule.

Section 2424.22 of the proposed rule

eliminated the wording currently

located at 5 CFR 2424.22(b)(4). Section

2424.22 of the final rule maintains the

wording currently located at 5 CFR

2424.22(b)(4), but the wording is

redesignated as § 2424.22(c)(4) in the

final rule. This wording is further

amended so that it requires the petition

to include any request for a hearing and

the reasons supporting such request,

‘‘with the understanding that the

Authority rarely grants such requests.’’

This additional proviso has been added

to make parties aware that, as a matter

of longstanding practice, the Authority

very seldom grants hearing requests.

Unlike the proposed rule, § 2424.22 of

the final rule does not require the

exclusive representative to respond, in

its petition, to specific bargaining

obligation or negotiability claims that

appear in an agency’s written allegation

concerning the duty to bargain, or an

agency head’s disapproval—although

the exclusive representative is not

prohibited from responding to those

claims in its petition.

Like the proposed rule, § 2424.22 of

the final rule eliminates the paragraph

concerning severance that is currently

located at 5 CFR 2424.22(c).

Section 2424.23

Comments and Responses

Two agency commenters opposed

making the scheduling of a post-petition

conference dependent on the

Authority’s discretion. However, the

existing regulation already recognized

such discretion by saying that

conferences would be scheduled only

‘‘where appropriate.’’ 5 CFR 2424.23(a).

Although the wording is being changed,

the effect is the same. One of these

commenters also stated that conferences

should occur before the agency files its

statement of position. Although the

Authority endeavors to schedule

conferences before the filing of a

statement of position, conferences do

VerDate Sep<11>2014 16:24 Sep 11, 2023 Jkt 259001 PO 00000 Frm 00005 Fmt 4700 Sfmt 4700 E:\FR\FM\12SER1.SGM 12SER1

lotter on DSK11XQN23PROD with RULES1

62450

Federal Register / Vol. 88, No. 175 / Tuesday, September 12, 2023 / Rules and Regulations

not always occur within that timeframe.

The final rule does not guarantee that a

conference will occur within a

particular timeframe, but the Authority

will continue to endeavor to schedule

conferences at the earliest practicable

date.

A union commenter said that

conferences should be held early in the

filing process. As stated previously, the

Authority will continue to endeavor to

do so.

Another agency commenter suggested

that post-petition conferences should

happen within thirty days or less of the

Authority’s meeting on the case. The

commenter expressed concern that,

because conferences may be held many

months before a decision is issued, the

Authority’s Chairman and Members

may not retain familiarity with the

details of the conference. Because the

record of a post-petition conference is

created shortly after the conference, and

that record is part of the official case file

that the Chairman and Members review

when deciding a negotiability appeal,

the commenter’s concern is unfounded.

Thus, the final rule has not been

amended based on this comment.

OPM supported emphasizing the

discretionary nature of post-petition

conference scheduling, but asked that

the regulation be amended further to

state that the post-petition conference

would generally not occur if no

additional clarification was needed

regarding the disputed wording.

Experience has shown that, in nearly all

cases, post-petition conferences

meaningfully clarify the disputes in

negotiability appeals. Thus, the

regulation has not been amended as

OPM suggested.

OPM also suggested that the post-

petition conferences should occur after

the agency files its statement of

position. OPM reasoned that the

statement of position is the first fully

elaborated explanation of the agency’s

objections to the disputed wording, and

if conferences were held after it is filed,

then the conference holder would have

more material with which to prepare for

the conference. Post-petition

conferences primarily develop the

factual record in a negotiability appeal

and reveal whether the parties have a

shared understanding of the wording in

dispute. If the parties do not already

have a shared understanding of the

disputed wording, then the conference

helps to develop such an understanding,

or to precisely identify where the

parties’ understandings differ.

Although previously expressed legal

arguments may shape some of the

questions at the conference, the existing

process has shown that conference

holders are able to elicit sufficient

information from agencies during the

conference to assess the nature of their

objections and tailor the conference

accordingly. Further, in cases where the

conference occurs before the statement

of position is filed, the agency is able to

focus its arguments in the statement of

position on the actual disputes between

the parties, rather than misperceptions

about the meaning, operation, and

effects of the proposals or provisions.

Therefore, the final rule does not aim to

schedule post-petition conferences after

the filing of the statement of position.

One commenter suggested that the

section should not be changed because

the existing process has worked very

well. The changes adopted in the final

rule will more closely align the wording

of the regulation and the Authority’s

actual practices. The essential nature

and function of the post-petition

conferences will remain the same.

One agency commenter suggested that

§ 2424.23(e) of the proposed rule should

be amended to specify that the

Authority may take other appropriate

action to aid in its decision making even

if a conference is not held. However, the

proposed rule already included such

wording because it stated that the

Authority may hold a hearing or take

other appropriate action, in the exercise

of its discretion, instead of, or in

addition to, conducting a post-petition

conference. Section 2424.23(e) of the

final rule retains this wording.

Further Analysis

The heading of § 2424.23 is the same

in the final rule as in the proposed rule.

Further, § 2424.23(a) is the same in the

final rule as in the proposed rule, with

one exception. Whereas § 2424.23(a) of

the proposed rule said that ‘‘[t]he FLRA

may, in its discretion, schedule a post-

petition conference,’’ § 2424.23(a) of the

final rule says that ‘‘[t]he FLRA will, in

its discretion, schedule a post-petition

conference.’’ The word ‘‘may’’ was

changed to ‘‘will’’ to emphasize that, in

the vast majority of cases, a post-

petition conference will be scheduled.

Further, the phrase ‘‘in its discretion’’

already permits the Authority to

exercise reasonable judgment in

deciding whether to schedule a post-

petition conference in a particular case,

so the permissive ‘‘may’’ was not

needed to signal such discretion.

Although the proposed rule did not

include changes to § 2424.23(b)(3), the

final rule adds the word ‘‘and’’ at the

end of § 2424.23(b)(3), in order to

introduce the following subsection. As

this change is merely a grammatically

correct way to introduce § 2424.23(b)(4),

rather than a substantive change to

§ 2424.23(b)(3), this technical change

falls within the scope of the proposed

amendments to § 2424.23(b)(4).

Section 2424.23(b)(4) of the proposed

rule was amended, and the amended

version appears as § 2424.23(b)(4) of the

final rule. Whereas the proposed rule

addressed the status of ‘‘any proposal or

provision that is also involved in’’

another proceeding, the final rule

addresses the status of ‘‘any proceedings

. . . that are directly related to the

negotiability petition.’’ Thus, the scope

of § 2424.23(b)(4) in the final rule is

broader than § 2424.23(b)(4) in the

proposed rule. The final rule requires

parties to be prepared and authorized to

discuss the status of any proceedings

directly related to the negotiability

petition, and not merely a particular

proposal or provision that is involved in

both the negotiability process and

another proceeding. Further, including

the ‘‘directly related’’ wording in

§ 2424.23(b)(4) of the final rule ensures

consistency with § 2424.30, which states

that the Authority will dismiss a

petition for review when the exclusive

representative has filed an unfair labor

practice (ULP) charge or a grievance

alleging a ULP, and the charge or

grievance concerns issues ‘‘directly

related’’ to the petition.

Section 2424.23(b) of the final rule

deletes the wording currently located at

5 CFR 2424.23(b)(5) because the subject

matter currently addressed at 5 CFR

2424.23(b)(5)—that is, extensions of

time limits—is now addressed in

§ 2424.23(c) of the final rule. Section

2424.23(c) is the same in the final rule

as in the proposed rule.

Section 2424.23(d) of the final rule

differs from the proposed rule in three

respects. First, rather than referring to

‘‘the representative of the FLRA,’’ as the

proposed rule did, the final rule refers

to ‘‘the FLRA representative.’’ Second,

the final rule clarifies that the FLRA

will serve the record of the conference

on the parties: the FLRA representative

conducting the conference will prepare

the record but not serve it. Third, the

final rule references ‘‘a written record,’’

rather than ‘‘a written statement’’ as in

the proposed rule. ‘‘Record’’ is the term

the FLRA uses to refer to this document

in communications with parties and in

Authority decisions, so the rule’s

wording was changed to correspond

with these other uses.

Section 2424.23(e) is the same in the

final rule as in the proposed rule.

Section 2424.24

Comments and Responses

OPM and an agency commenter

supported the specificity requirements

VerDate Sep<11>2014 16:24 Sep 11, 2023 Jkt 259001 PO 00000 Frm 00006 Fmt 4700 Sfmt 4700 E:\FR\FM\12SER1.SGM 12SER1

lotter on DSK11XQN23PROD with RULES1

62451

Federal Register / Vol. 88, No. 175 / Tuesday, September 12, 2023 / Rules and Regulations

of the section as promoting prompt and

focused resolutions to disputes.

Further Analysis

The heading and § 2424.24(a) are the

same in the final rule as in the proposed

rule, with one minor, technical change.

The final rule uses the term ‘‘outside the

duty to bargain,’’ rather than ‘‘not

within the duty to bargain,’’ to make the

sentence read more clearly and to use

the same wording that is set forth in

§ 2424.32(b). The change does not alter

the sentence’s meaning.

Although the proposed rule included

changes to streamline § 2424.24(b), the

final rule leaves the wording located at

5 CFR 2424.24(b) unchanged.

Section 2424.24(c)(2) is the same in

the final rule as in the proposed rule.

Section 2424.24(c)(3) of the final rule

differs from the proposed rule in several

respects. The first part of § 2424.24(c)(3)

of the final rule—in the portion that

begins with the word ‘‘[s]tatus’’—is

changed from the proposed rule so that

this portion of § 2424.24(c)(3) of the

final rule mirrors § 2424.23(b)(4) of the

final rule. The second part of

§ 2424.24(c)(3) of the final rule—in the

portion that begins with ‘‘and

whether’’—is the same as in the

proposed rule, except the word ‘‘and’’

has been deleted after the semicolon.

The paragraph identified as

§ 2424.24(c)(4) in the proposed rule is

adopted but redesignated as

§ 2424.24(c)(3)(i) in the final rule, and

the word ‘‘and’’ has been added to the

end of this paragraph to introduce the

final paragraph of § 2424.24(c) of the

final rule. Section 2424.24 of the

proposed rule eliminated the wording

currently located at 5 CFR 2424.24(c)(4).

However, § 2424.24 of the final rule

maintains the wording currently located

at 5 CFR 2424.24(c)(4), but that wording

is supplemented so that it requires the

petition to include any request for a

hearing and the reasons supporting such

request, ‘‘with the understanding that

the Authority rarely grants such

requests.’’ This additional proviso has

been added to make parties aware that,

as a matter of longstanding practice, the

Authority very seldom grants hearing

requests.

Like the proposed rule, § 2424.24 of

the final rule deletes the paragraph

currently located at 5 CFR 2424.24(d),

and the final rule also redesignates the

paragraph currently located at 5 CFR

2424.24(e) as the new § 2424.24(d) of

the final rule.

Section 2424.25

Comments and Responses

OPM suggested that this section

specify that untimely responses to

statements of position will not be

considered, absent a demonstration of

good cause. Existing procedures for

addressing untimely responses have

proven adequate, so this suggestion has

not been adopted.

OPM and an agency commenter

supported the specificity requirements

of this section as promoting prompt and

focused resolutions to disputes.

One commenter suggested that the

section should clarify that a response is

optional if the exclusive representative

does not have any additional arguments

that were not already set forth in the

petition for review. This concern is

adequately addressed by § 2424.25(c) of

the final rule, which states that the

response is limited to matters that the

agency raised in its statement of

position, and that the exclusive

representative is not obligated to repeat

arguments that were made in the

petition for review.

One commenter specifically

supported the idea of granting severance

automatically—as suggested in the

proposal notices under severance

‘‘Option 2’’—and that commenter also

advocated making severance available

in the response. Except for one point

that was already addressed in

connection with § 2424.22 about

disputes over whether an exclusive

representative satisfied its burdens

related to automatic severance,

commenters did not specifically oppose

providing severance automatically when

it was sought. To be clear, some

commenters did advocate for

eliminating severance altogether, but

those commenters did not provide

specific reasons why—if severance were

retained in some fashion—it should not

occur automatically when sought.

Further Analysis

Section 2424.25(a) is the same in the

final rule as in the proposed rule, except

that, instead of the word ‘‘union’’ as in

the proposed rule, the final rule uses the

term ‘‘exclusive representative.’’

Although the proposed rule included

changes to streamline § 2424.25(b), the

final rule leaves the wording located at

5 CFR 2424.25(b) unchanged.

Section 2424.25(c) is the same in the

final rule as in the proposed rule, except

for the fourth complete sentence in

§ 2424.25(c). The fourth complete

sentence in § 2424.25(c) of the proposed

rule stated, ‘‘You must limit your

response to the matters that the agency

raised in its statement of position.’’ By

contrast, the fourth complete sentence

in § 2424.25(c) of the final rule states,

‘‘With the exception of severance under

paragraph (d) of this section, you must

limit your response to the matters that

the agency raised in its statement of

position.’’ Thus, this sentence in the

final rule allows for the accomplishment

of severance in the exclusive

representative’s response, but otherwise,

the response is limited to the matters

that the agency raised in its statement of

position.

Section 2424.25 of the proposed rule

deleted the severance wording currently

located at 5 CFR 2424.25(d), and the

proposed rule redesignated the wording

currently located at 5 CFR 2424.25(e) as

the new § 2424.25(d).

As mentioned during the earlier

discussion of severance in connection

with the content of a petition for review

under § 2424.22, the final rule makes a

modified severance procedure available

under § 2424.25. Thus, unlike the

proposed rule, § 2424.25 of the final rule

does not completely delete the

severance paragraph currently located at

5 CFR 2424.25(d). Instead, the final rule

amends that paragraph to allow the

exclusive representative, of its own

accord, to accomplish severance of a

previously submitted proposal or

provision. Section 2424.25(d) of the

final rule explains how the exclusive

representative may accomplish

severance of its own accord and

describes how the exclusive

representative’s accomplishment of

severance must aim to satisfy the

exclusive representative’s burdens

under §§ 2424.25(c) and 2424.32. This

approach is consistent with severance

‘‘Option 2,’’ as described in the proposal

notices in connection with § 2424.22 of

the proposed rule.

Under § 2424.25(d) of the final rule,

the exclusive representative must

identify the proposal or provision that

the exclusive representative is severing

and set forth the exact wording of the

newly severed portion(s). At that point,

under the final rule, severance will have

been accomplished, creating revised or

new proposals or provisions. However,

under the final rule, consistent with

FLRA case law, the exclusive

representative will maintain the burden

of establishing why, despite an agency’s

objections, the newly severed proposals

or provisions are within the duty to

bargain or not contrary to law. That

burden includes explaining how the

newly severed proposals or provisions

operate and stand alone with

independent meaning. Moreover, under

the final rule, if the exclusive

representative accomplishes severance

of its own accord but fails to meet the

associated burdens under § 2424.25(c)

or § 2424.32, then the Authority would

dismiss the petition as to the newly

severed proposals or provisions, based

on the exclusive representative’s failure

VerDate Sep<11>2014 16:24 Sep 11, 2023 Jkt 259001 PO 00000 Frm 00007 Fmt 4700 Sfmt 4700 E:\FR\FM\12SER1.SGM 12SER1

lotter on DSK11XQN23PROD with RULES1

62452

Federal Register / Vol. 88, No. 175 / Tuesday, September 12, 2023 / Rules and Regulations

to provide an adequate record for a

negotiability determination. See, e.g.,

NFFE, Loc. 1655, 49 FLRA 874, 878–79

(1994) (dismissing petition as to one

provision because the record was

inadequate for the Authority to make a

negotiability determination).

An exclusive representative must be

especially attentive to its burdens in

connection with accomplishing

severance, particularly because a

response is ordinarily an exclusive

representative’s last filing in a

negotiability case. Whereas

insufficiently explained proposals or

provisions in a petition may often be

clarified in the record of a later post-

petition conference, it is unlikely

(although not impossible) that a post-

petition conference will occur after the

filing of a response.

Section 2424.25(e) of the final rule

leaves the wording currently located at

5 CFR 2424.25(e) unchanged.

Section 2424.26

Comments and Responses

OPM suggested that this section

specify that untimely replies will not be

considered, absent a demonstration of

good cause. Existing procedures for

addressing untimely replies have

proven adequate, so this suggestion has

not been adopted.

Two commenters opposed

§ 2424.26(b) of the proposed rule

because that paragraph changed the

time limit for filing a reply from fifteen

days (under the existing rule) to ten

days from the date of receipt of the

exclusive representative’s response.

OPM supported shortening the time

limit. As discussed further below, the

final rule does not change the time

limit.

Further Analysis

The heading and § 2424.26(a) are the

same in the final rule as in the proposed

rule. Although the proposed rule

included changes to § 2424.26(b)—

concerning the time limit for filing a

reply—the final rule leaves the wording

located at 5 CFR 2424.26(b) unchanged.

Section 2424.22(c) is the same in the

final rule as in the proposed rule, with

one exception. The sixth full sentence of

§ 2424.22(c) of the final rule ends with

the word ‘‘respectively,’’ which was not

part of the proposed rule.

Section 2424.26 of the proposed rule

deleted the severance wording currently

located at 5 CFR 2424.26(d), and the

proposed rule redesignated the wording

currently located at 5 CFR 2424.25(e) as

the new § 2424.25(d). The final rule

adopts these changes in full.

Section 2424.27

Comments and Responses

One commenter suggested that the

paragraph about additional submissions

include a time limit for when such

submissions must be filed. This

paragraph is mostly aimed at addressing

unexpected developments that cannot

be adequately discussed in the filings

that the negotiability regulations already

recognize. For that reason, it is unclear

what event would trigger a time limit for

additional submissions, and the

commenter did not suggest any point at

which to begin measuring such a time

limit. Further, one purpose of this

section is to allow filings even late in

negotiability proceedings, if sufficiently

important developments could affect the

Authority’s eventual decision and order.

A time limit would impede that

purpose. Thus, this suggestion has not

resulted in changes to the rule.

The proposed rule removed—from the

paragraph currently located at the 5 CFR

2424.27—the five-day deadline for filing

an additional submission, after receipt

of an Authority order granting

permission to file that submission. A

union commenter opposed this change

because the proposed rule did not

provide an alternate deadline. As

discussed further below, the final rule

addresses this issue by requiring that

any additional submission be filed

simultaneously with the request for

permission to file that additional

submission.

The same union commenter also

characterized this paragraph as creating

a process for third parties to submit

documents for the Authority’s

consideration in a negotiability case.

That is, the commenter believed that the

paragraph concerned filings that are not

submitted by the parties to a case.

However, the commenter’s

characterization misconstrued the

paragraph. Both before and after

revisions, the beginning of the

paragraph states that ‘‘[t]he Authority

will not consider any submission filed

by any party other than those authorized

under this part,’’ and then the

remainder of the paragraph sets forth a

process for granting exceptions to that

prohibition. 5 CFR 2424.27. The

reference to ‘‘any party’’ does not permit

non-parties to employ this procedure to

file submissions in a negotiability case.

Instead, the reference to ‘‘any party’’

emphasizes that all parties to

negotiability cases are limited to the

filings expressly recognized in the

negotiability regulations, except for

additional submissions that the

Authority grants permission to file, in

accordance with this section. See

Processing of Cases; Final Rules, 45 FR

3482, 3485 (Jan. 17, 1980) (explaining

that the purpose of the predecessor rule

to § 2424.27 was to clarify that ‘‘the

Authority will not consider any

submissions other than a petition for

review, statement of position[,] and

response . . . unless such additional

submission is requested by the

Authority[,] or the Authority in its

discretion grants permission to file such

submission’’). Further, the paragraph

states that a party must show that

extraordinary circumstances justify

filing an additional submission, and this

burden reinforces that the paragraph

does not concern filings by non-parties.

A separate rule governing submissions

from amicus curiae is located at 5 CFR

2429.9.

Further Analysis

Section 2424.27 of the final rule

adopts the heading and all of the

wording from the proposed rule, but

§ 2424.27 of the final rule also includes

one additional sentence that comes from

the wording currently located at 5 CFR

2424.27. Specifically, the additional

sentence in the final rule that was not

present in the proposed rule states,

‘‘The additional submission must be

filed with the written request.’’ The

‘‘written request’’ in this additional

sentence is a written request to file an

additional submission in a negotiability

proceeding based on a showing of

extraordinary circumstances.

Section 2424.30

Comments and Responses

One union commenter and one

agency commenter supported the

proposed clarifications in this section

about when a grievance alleging a ULP

would be considered administratively

resolved. These commenters stated that

the proposed rule identified all of the

circumstances that, to their knowledge,

could be considered an administrative

resolution that would trigger the thirty-

day deadline for an exclusive

representative to refile a directly related

negotiability petition that was

previously dismissed without prejudice.

The final rule adopts these clarifications

from the proposed rule in full.

The same union commenter suggested

that, because this section would now

list the possible administrative

resolutions for a grievance alleging a

ULP, the section should also list the

possible administrative resolutions for a

ULP charge that prompted the dismissal

of a negotiability petition without

prejudice. The commenter should refer

to the ULP regulations in part 2423 for

guidance about potential administrative

VerDate Sep<11>2014 16:24 Sep 11, 2023 Jkt 259001 PO 00000 Frm 00008 Fmt 4700 Sfmt 4700 E:\FR\FM\12SER1.SGM 12SER1

lotter on DSK11XQN23PROD with RULES1

62453

Federal Register / Vol. 88, No. 175 / Tuesday, September 12, 2023 / Rules and Regulations

resolutions of ULP charges. The final

rule does not repeat information from

part 2423.

An agency commenter suggested that

§ 2424.30(b)(2) of the proposed rule

state that where an agency makes only

bargaining obligation claims, and not

negotiability claims, those bargaining

obligation claims will not be resolved

through the negotiability process. The

clarification that this commenter sought

is already present in § 2424.2(d)’s

definition of a petition for review, so

this suggestion has not resulted in

changes to § 2424.30 of the final rule.

OPM contended that the Authority

should not automatically dismiss

petitions for review without prejudice

when an exclusive representative has

filed a ULP charge or grievance alleging

a ULP, and the charge or grievance

concerns issues directly related to the

petition for review. Instead, OPM

advocated a case-by-case assessment of

which forum would most expeditiously

resolve the parties’ disputes. According

to OPM, if the Authority determines that

the negotiability process would provide

the most expeditious resolution, then

the Authority should not dismiss a

petition for review (without prejudice)

while the parties’ directly related

disputes proceed toward resolution in

another forum. When the Authority

amended its negotiability regulations to

allow for the resolution of bargaining

obligation disputes that accompany

negotiability disputes, the Authority

declined to adopt a commenter’s

suggestion that, if directly related

disputes were filed in multiple forums,

then an exclusive representative should

have the right to determine which forum

proceeds to a resolution first. On that

point, the Authority stated that ULP

‘‘proceedings are, in these situations,

better suited to resolving the entire

dispute.’’ Negotiability Proceedings, 63

FR 66405, 66410 (Dec. 2, 1998). The

Authority explained further:

[W]ith the sole exception of compelling

need claims . . . all bargaining obligation

and negotiability claims may be adjudicated

in [a ULP] proceeding. Further, unless

excluded from the scope of the parties’

grievance procedure by agreement, alleged

[ULPs] may be resolved under such

negotiated procedures. Thus, with one

exception, dismissing petitions for review

where [ULP] charges have been filed does not

jeopardize a party’s ability to obtain

adjudication of all claims. In addition, . . .

with the exception of orders to bargain,

remedies available in [ULP] proceedings

under 5 U.S.C. 7118(a)(7) are not . . .

available in Authority decisions and orders

issued under this part. Accordingly, in

situations where an exclusive representative

has filed [a ULP] charge, requiring

adjudication in a negotiability proceeding

would deprive a prevailing exclusive

representative of such remedies.

Id. The Authority continues to adhere

to those views about resolving cases that

involve both bargaining obligation and

negotiability disputes. Moreover, a case-

by-case assessment would leave the

decision-makers in other forums—

specifically, the General Counsel and

employees of the Office of the General

Counsel, as well as arbitrators—

uncertain about whether to process

disputes before them that are directly

related to a negotiability petition for

review. For all these reasons, the final

rule does not adopt OPM’s suggestion.

OPM also suggested that the section

state that if an exclusive representative

files a ULP charge that solely concerns

an allegation of nonnegotiability, then

the Authority may choose to process the

ULP charge as a negotiability appeal.

However, OPM did not provide any

legal authority to establish that an

exclusive representative’s choice of

forum may be overruled in that manner,

so this suggestion has not been adopted.

Further Analysis

The heading; § 2424.30(a)—including

subsections (a)(1), (2), (3), and (4); and

§ 2424.30(b) and (b)(1) are the same in

the final rule as in the proposed rule.

Section 2424.30(b)(2) of the final rule

differs from the proposed rule only in

its first sentence. This sentence

concerns how the Authority will

process a petition for review when an

exclusive representative has not already

filed a related ULP charge or a grievance

alleging a ULP, but a bargaining

obligation dispute exists in connection

with the petition for review. The first

sentence of § 2424.30(b)(2) of the

proposed rule stated, in pertinent part,

‘‘The exclusive representative may file

an unfair labor practice charge pursuant

to part 2423 of this subchapter or a

grievance under the parties’ negotiated

grievance procedure concerning the

bargaining obligation dispute . . . .’’ In

contrast, the first sentence of

§ 2424.30(b)(2) of the final rule states, in

pertinent part, ‘‘The exclusive

representative may have an opportunity

to file an unfair labor practice charge

pursuant to part 2423 of this subchapter

or a grievance under the parties’

negotiated grievance procedure

concerning the bargaining obligation

dispute . . . .’’ This sentence was

changed to avoid implying that, if an

exclusive representative files a petition

that involves a bargaining obligation

dispute, then the exclusive

representative is entitled to file a ULP

charge or grievance alleging a ULP,

irrespective of the ordinary legal and

contractual conditions that would

otherwise apply to these filings. Thus,

this portion of the first sentence of

§ 2424.30(b)(2) of the final rule uses the

phrase ‘‘may have an opportunity to

file’’ to indicate that, if an exclusive

representative files a ULP charge or

grievance as described in this

subsection, then those filings would be

subject to all of the otherwise applicable

conditions that ordinarily apply to such

filings—such as, for example, time

limits. The remainder of § 2424.30(b)(2)

of the final rule is the same as the

proposed rule.

Section 2424.31

Comments and Responses

One commenter disagreed that this

section should allow for hearings or

other appropriate action to resolve

bargaining obligation disputes since this

part of the Authority’s Regulations

concerns negotiability proceedings. The

procedures of this section would apply

only to bargaining obligation disputes

that may be resolved in a negotiability

appeal because they are accompanied by

negotiability disputes concerning the

same proposal or provision.

A union commenter stated that, to the

extent that the final rule is intended to

preclude the consideration of parties’

views about whether a hearing is

needed, the commenter opposes that

change. The final rule is not intended to

preclude the consideration of the

parties’ views, and none of the changes

to the rule expressly state or imply that

the Authority will not consider the

parties’ views. Thus, this concern is

misplaced.

Further Analysis

Section 2424.31 is the same in the

final rule as in the proposed rule.

Section 2424.32

Comments and Responses

An agency commenter recommended

adding the phrase ‘‘or government-wide

regulation’’ after the phrase ‘‘contrary to

law’’ in § 2424.32(a) and (b). This

change has not been made because this

section’s use of the phrase ‘‘contrary to

law’’ is intended to encompass all

authorities with the force and effect of

law—not merely statutes.

A union commenter opposed the

newly created burden under

§ 2424.32(c) of the proposed rule that

each party must give sufficiently

detailed explanations to enable the

Authority to understand the party’s

position regarding the meaning,

operation, and effects of a proposal or

provision. The commenter noted that

§ 2424.32(c) cautioned that the

Authority’s decision may be adverse to

VerDate Sep<11>2014 16:24 Sep 11, 2023 Jkt 259001 PO 00000 Frm 00009 Fmt 4700 Sfmt 4700 E:\FR\FM\12SER1.SGM 12SER1

lotter on DSK11XQN23PROD with RULES1

62454

Federal Register / Vol. 88, No. 175 / Tuesday, September 12, 2023 / Rules and Regulations

a party that fails to satisfy this burden

to sufficiently explain, and the

commenter contended that an adverse

consequence is an unfair penalty for

non-lawyer union representatives who

may not phrase arguments in the most

compelling way. This commenter

viewed § 2424.32(c) as an attempt to

punish parties that do not provide

sophisticated analyses. However, the

commenter’s criticism is unfounded

because the burden in § 2424.32(c) is

not concerned with sophistication; it is

concerned with sufficiency. Parties

must provide the Authority with the

details necessary to understand their

positions, and parties must be aware

that a failure to provide those details

may adversely affect them. Section

2424.32(c) essentially warns parties not

to expect the Authority to fill in gaps in

order to fully develop, or make sense of,

incompletely explained positions.

Rather, parties must be diligent in

setting forth their understandings on all

relevant facets of the meaning,

operation, and effects of a proposal or

provision, as well as the associated legal

implications.

Further Analysis

The heading and § 2424.32(a) are the

same in the final rule as in the proposed

rule.

Section 2424.32(b) of the final rule

differs from the proposed rule in one

respect. Whereas § 2424.32(b) of the

proposed rule stated that ‘‘[t]he agency

has the burden of explaining the

meaning, operation, and effects of the

proposal or provision, if the agency

disagrees with the exclusive

representative’s explanations’’;

§ 2424.32(b) of the final rule states that

‘‘[t]he agency has the burden of

explaining the agency’s understanding

of the meaning, operation, and effects of

the proposal or provision, if the agency

disagrees with the exclusive

representative’s explanations.’’ Unlike

the proposed rule, § 2424.32(b) of the

final rule assigns the agency the burden

of explaining the agency’s

understanding of meaning, operation,

and effects because the agency has this

burden of explanation only when the

agency disagrees with the explanations

that the exclusive representative already

provided. In those situations where the

agency disagrees with the exclusive

representative’s explanations, the

agency’s burden would be to explain the

agency’s understanding, so as to

distinguish that understanding from the

exclusive representative’s previous

explanations.

The wording in § 2424.32(b) of the

final rule is consistent with

§ 2424.24(c)(2)(i) of the final rule, in

which agencies are instructed that their

statements of positions must include,

‘‘[i]f different from the exclusive

representative’s position, an explanation

of the meaning the agency attributes to

the proposal or provision and the

reasons for disagreeing with the

exclusive representative’s explanation

of meaning.’’ 5 CFR 2424.24(c)(2)(i)

(emphasis added).

Further, § 2424.32(b) of the final rule

is consistent with Authority precedent

that when the parties disagree about a

proposal’s meaning, then the Authority

relies on the exclusive representative’s

explanation of the proposal’s meaning

to assess whether the proposal is within

the duty to bargain, as long as the

exclusive representative’s explanation

comports with the proposal’s wording.

E.g., Nat’l Nurses United, 70 FLRA 306,

307 (2017).

Moreover, § 2424.32(b) of the final

rule accounts for cases where an

exclusive representative explains a

proposal’s meaning, but that

explanation does not comport with the

proposal’s wording. Under those

circumstances, if the agency disagrees

with the exclusive representative’s

explanation, then the agency bears the

burden of explaining (1) the agency’s

understanding of the proposal and how

that understanding comports with the

proposal’s wording; and (2) why the

exclusive representative’s alternate

explanation does not comport with the

proposal’s wording.

The remainder of § 2424.32(b) of the

final rule is the same as the proposed

rule.

Section 2424.32(c); (d)—including

subsections (d)(1), (d)(1)(i), (d)(1)(ii),

and (d)(2); and (e) of the final rule are

the same as the proposed rule.

Section 2424.40

None of the public comments

addressed § 2424.40. Section 2424.40 is

the same in the final rule as in the

proposed rule, except for one phrase

that has been added in the final rule.

The second complete sentence of

§ 2424.40(b) in the proposed rule stated,

‘‘If the Authority finds that the duty to

bargain does not extend to the proposal,

then the Authority will dismiss the

petition for review.’’ In § 2424.40(b) of

the final rule, the second half of this

sentence states, ‘‘then the Authority will

dismiss the petition for review as to that

proposal.’’ This change makes

§ 2424.40(b) of the final rule consistent

with § 2424.40(c) of the final rule,

which states, ‘‘If the Authority finds that

a provision is contrary to law, rule, or

regulation, then the Authority will

dismiss the petition for review as to that

provision.’’ 5 CFR 2424.40(c) (emphasis

added). Further, this change is

consistent with the Authority’s

longstanding practice. E.g., AFGE, Loc.

3509, 46 FLRA 1590, 1623–24 (1993)

(dismissing petition for review as to

seven proposals, but ordering agency to

bargain concerning one proposal).

Section 2424.41

None of the public comments

addressed § 2424.41. Section 2424.41 is

the same in the final rule as in the

proposed rule, with one exception.

Section 2424.41 of the proposed rule

stated that an exclusive representative

must report to the appropriate Regional

Director an agency’s failure to comply

with an order issued in accordance with

§ 2424.40 ‘‘within thirty (30) days

following expiration of the 60-day

period under 5 U.S.C. 7123(a).’’ By

contrast, § 2424.41 of the final rule

reverts to wording currently located at

5 CFR 2424.41. Thus, § 2424.41 of the

final rule states that an exclusive

representative must report an agency’s

failure to comply with an order ‘‘within

a reasonable period of time following

expiration of the 60-day period under 5

U.S.C. 7123(a).’’

Section 2424.50

Comments and Responses

Two union commenters opposed

changing the regulatory definition of

compelling need in a way that would

permit the Authority to find that

circumstances other than those listed in

the illustrative examples demonstrated

the existence of compelling need. These

same commenters opposed adding any

additional examples to the illustrative

criteria.

One commenter provided six

additional examples to consider adding

to the illustrative criteria.

OPM supported changing the

regulatory definition of compelling need

in a way that would permit the

Authority to find that circumstances

other than those listed in the illustrative

criteria demonstrated the existence of

compelling need.

OPM requested that the section

specify that compelling need arguments

may be merely one of several grounds

for an allegation of nonnegotiability.

OPM also asked that the section include

additional explanation about what

constitutes an agency rule or regulation.

These requests were not germane to the

definition of a compelling need—which

is the subject of this section—so they

were not incorporated into the final

rule.

OPM suggested removing the

reference to ‘‘the accomplishment of the

mission or the execution of functions of

VerDate Sep<11>2014 16:24 Sep 11, 2023 Jkt 259001 PO 00000 Frm 00010 Fmt 4700 Sfmt 4700 E:\FR\FM\12SER1.SGM 12SER1

lotter on DSK11XQN23PROD with RULES1

62455

Federal Register / Vol. 88, No. 175 / Tuesday, September 12, 2023 / Rules and Regulations

the agency or primary national

subdivision’’ from § 2424.50(a) of the

proposed rule. As no rationale was

offered for deleting that phrase, it has

been retained in the final rule.

One agency commenter argued that all

agency rules that have general

applicability to the agency’s workforce

should demonstrate a compelling need.

This argument is rejected because it

would allow agencies to render topics

nonnegotiable merely by issuing a

regulation of general applicability. This

same commenter argued that executive

orders should qualify as ‘‘mandate[s] to

the agency or primary national

subdivision under law or other outside

authority, which implementation is

essentially nondiscretionary in nature,’’

under § 2424.50(c). Nothing in the rule

prevents a party from making that

argument in the context of a concrete

dispute, but the final rule does not

include a blanket statement to that

effect.

The Department of Veterans Affairs

argued that agency rules and regulations

concerning pandemics, epidemics, or

other similar emergency situations

should be treated as rules and

regulations supported by a compelling

need, particularly because of the

Department’s healthcare

responsibilities. The Department may

advance that argument in the context of

a concrete dispute, but the final rule

does not include a blanket statement to

that effect.

Ultimately, the comments on

additional examples to add to § 2424.50

were varied and conflicting. The final

rule retains the examples already set

forth at 5 CFR 2424.50. However, as

explained further below, the final rule

does not include any additional

examples in the illustrative criteria. In

addition, the final rule does not include

a phrase that would recognize the

Authority’s ability to determine that a

compelling need exists based on

circumstances other than those in the

illustrative criteria.

Further Analysis

Section 2424.50 of the final rule

differs from the proposed rule in several

respects. Like § 2424.50 of the proposed

rule, § 2424.50 of the final rule adds to

the middle of the introductory

paragraph the following wording that

does not currently appear in 5 CFR

2424.50: ‘‘the rule or regulation was

issued by the agency or any primary

national subdivision of the agency,

and.’’ This additional wording

recognizes requirements from Section

7117(a)(3) of the Statute—concerning

agency rules or regulations for which a

compelling need exists—as part of

§ 2424.50 of the final rule, which

provides a regulatory definition for

compelling need.

After the concluding word ‘‘and’’ in

the additional wording discussed in the

preceding paragraph, § 2424.50 of the

proposed rule stated that ‘‘the agency

demonstrates that either the rule or

regulation meets one or more of the

following illustrative criteria, or the

Authority determines that other

circumstances establish a compelling

need for the rule or regulation.’’ By

contrast, after the concluding word

‘‘and’’ in the additional wording

discussed in the preceding paragraph,

§ 2424.50 of the final rule states that

‘‘the agency demonstrates that the rule

or regulation satisfies one of the

following illustrative criteria.’’ As such,

the final rule departs from the proposed

rule in that the final rule does not state

that the Authority may determine that

‘‘other circumstances establish a

compelling need for the rule or

regulation.’’ Further, the final rule

changes the phrase ‘‘one or more of the

following illustrative criteria’’ from the

proposed rule to simply ‘‘one of the

following illustrative criteria.’’ This

change was made because a compelling

need exists if any one of the illustrative

criteria is satisfied, and it will ordinarily

be unnecessary for the Authority to

determine that a rule or regulation

satisfies multiple illustrative criteria.

However, this change does not preclude

the possibility that a rule or regulation

could satisfy more than one of the

illustrative criteria.

In connection with § 2424.50, the

proposal notices solicited suggestions

for more illustrative criteria that could

be added to the criteria currently

located at 5 CFR 2424.50. Although the

FLRA appreciates the time that

commenters dedicated to suggesting

additional illustrative criteria, the final

rule does not adopt any additional

criteria. Under the final rule, the

illustrative criteria currently located at 5

CFR 2424.50(a), (b), and (c) remain

unchanged.

Regulatory Flexibility Act Certification

Pursuant to section 605(b) of the

Regulatory Flexibility Act, 5 U.S.C.

605(b), the Chairman of the FLRA has

determined that this final rule will not

have a significant impact on a

substantial number of small entities,

because this final rule applies only to

Federal agencies, Federal employees,

and labor organizations representing

those employees.

Executive Order 12866, Regulatory

Review

The FLRA is an independent

regulatory agency and thus is not

subject to the requirements of E.O.

12866 (58 FR 51735, Sept. 30, 1993).

Executive Order 13132, Federalism

The FLRA is an independent

regulatory agency and thus is not

subject to the requirements of E.O.

13132 (64 FR 43255, Aug. 4, 1999).

Unfunded Mandates Reform Act of

1995

This final rule 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 were

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. This final rule will

not result in an annual effect on the

economy of $100,000,000 or more; a

major increase in costs or prices; or

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 Act of 1995

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.

List of Subjects in 5 CFR Part 2424

Negotiability Proceedings.

For the reasons stated in the

preamble, the Federal Labor Relations

Authority amends 5 CFR part 2424 as

set forth below:

■1. The authority citation for part 2424

continues to read as follows:

Authority: 5 U.S.C. 7134.

■2. Revise Section 2424.1 to read as

follows:

§ 2424.1 Applicability of this part.

This part applies to all petitions for

review filed on or after October 12,

2023.

■3. Amend § 2424.2 by revising

paragraphs (a), (c)(2) and (c)(3), adding

VerDate Sep<11>2014 16:24 Sep 11, 2023 Jkt 259001 PO 00000 Frm 00011 Fmt 4700 Sfmt 4700 E:\FR\FM\12SER1.SGM 12SER1

lotter on DSK11XQN23PROD with RULES1

62456

Federal Register / Vol. 88, No. 175 / Tuesday, September 12, 2023 / Rules and Regulations

paragraphs (c)(4) through (7), and

revising paragraphs © and (f). The

revisions and additions read as follows:

§ 2424.2 Definitions.

In this part, the following definitions

apply:

(a) Bargaining obligation dispute

means a disagreement between an

exclusive representative and an agency

concerning whether, in the specific

circumstances involved in a particular

case, the parties are obligated by law to

bargain over a proposal that otherwise

may be negotiable. Examples of

bargaining obligation disputes include

disagreements between an exclusive

representative and an agency

concerning agency claims that:

(1) A proposal concerns a matter that

is covered by a collective bargaining

agreement;

(2) Bargaining is not required because

there has not been a change in

bargaining-unit employees’ conditions

of employment or because the effect of

the change is de minimis; and

(3) The exclusive representative is

attempting to bargain at the wrong level

of the agency.

* * * * *

(c) * * *

(2) Affects bargaining-unit employees’

conditions of employment;

(3) Enforces an ‘‘applicable law,’’

within the meaning of 5 U.S.C.

7106(a)(2);

(4) Concerns a matter negotiable at the

election of the agency under 5 U.S.C.

7106(b)(1);

(5) Constitutes a ‘‘procedure’’ or

‘‘appropriate arrangement,’’ within the

meaning of 5 U.S.C. 7106(b)(2) and (3),

respectively;

(6) Is consistent with a Government-

wide rule or regulation; and

(7) Is negotiable notwithstanding

agency rules or regulations because:

(i) The proposal or provision is

consistent with agency rules or

regulations for which a compelling need

exists under 5 U.S.C. 7117(a)(2);

(ii) The agency rules or regulations

violate applicable law, rule, regulation,

or appropriate authority outside the

agency;

(iii) The agency rules or regulations

were not issued by the agency or by any

primary national subdivision of the

agency;

(iv) The exclusive representative

represents an appropriate unit including

not less than a majority of the

employees in the rule- or regulation-

issuing agency or primary national

subdivision; or

(v) No compelling need exists for the

rules or regulations to bar negotiations.

* * * * *

(e) Proposal means any matter offered

for bargaining that has not been agreed

to by the parties. If a petition for review

concerns more than one proposal, then

the term ‘‘proposal’’ includes each

proposal concerned.

(f) Provision means any matter that

has been disapproved by the agency

head on review pursuant to 5 U.S.C.

7114(c). If a petition for review concerns

more than one provision, then the term

‘‘provision’’ includes each provision

concerned.

* * * * *

■4. Revise § 2424.10 to read as follows:

§ 2424.10 Collaboration and Alternative

Dispute Resolution Program.

Where an exclusive representative

and an agency are unable to resolve

disputes that arise under this part, they

may request assistance from the

Collaboration and Alternative Dispute

Resolution (CADR) Program or the

Office of Case Intake and Publication

(CIP), which will refer requests to the

CADR Program. Upon request, as

resources permit, and as agreed upon by

the parties, CADR representatives will

attempt to assist the parties to resolve

these disputes. Parties seeking

information or assistance under this part

may call the CADR Office at (771) 444–

5802 or the Office of CIP at (771) 444–

5805, or write those offices at 1400 K

Street NW, Washington, DC 20424–

0001. A brief summary of CADR

activities is available on the internet at

www.flra.gov.

■5. Revise § 2424.11 to read as follows:

§ 2424.11 Requesting and providing

written allegations concerning the duty to

bargain.

(a) General. An exclusive

representative may file a petition for

review after receiving a written

allegation concerning the duty to

bargain from the agency. An exclusive

representative also may file a petition

for review if it requests in writing that

the agency provide it with a written

allegation concerning the duty to

bargain and the agency does not

respond to the request within ten (10)

days.

(b) Agency allegation in response to

request. The agency has an obligation to

respond within ten (10) days to a

written request by the exclusive

representative for a written allegation

concerning the duty to bargain. The

agency’s allegation in response to the

exclusive representative’s request must

be in writing and must be served in

accord with § 2424.2(g).

© Unrequested agency allegation. If

an agency provides an exclusive

representative with an unrequested

written allegation concerning the duty

to bargain, then the exclusive

representative may either file a petition

for review under this part, or continue

to bargain and subsequently request in

writing a written allegation concerning

the duty to bargain, if necessary. If the

exclusive representative chooses to file

a petition for review based on an

unrequested written allegation

concerning the duty to bargain, then the

time limit in § 2424.21(a)(1) applies.

■6. Amend § 2424.21 by revising

paragraph (b) to read as follows:

§ 2424.21 Time limits for filing a petition

for review.

* * * * *

(b) If the agency has not served a

written allegation on the exclusive

representative within ten (10) days after

the agency’s principal bargaining

representative has received a written

request for such allegation, as provided

in § 2424.11(a), then the petition may be

filed at any time, subject to the

following:

(1) If the agency serves a written

allegation on the exclusive

representative more than ten (10) days

after receiving a written request for such

allegation, then the petition must be

filed within fifteen (15) days after the

date of service of that allegation on the

exclusive representative.

(2) [Reserved]

■7. Revise § 2424.22 to read as follows:

§ 2424.22 Exclusive representative’s

petition for review; purpose; divisions;

content; service.

(a) Purpose. The purpose of a petition

for review is to initiate a negotiability

proceeding and provide the agency with

notice that the exclusive representative

requests a decision from the Authority

that a proposal or provision is within

the duty to bargain or not contrary to

law, respectively.

(b) Divisions. The petition will be

resolved according to how the exclusive

representative divides matters into

proposals or provisions. If the exclusive

representative seeks a negotiability

determination on particular matters

standing alone, then the exclusive

representative must submit those

matters as distinct proposals or

provisions. However, the exclusive

representative will have an opportunity

to divide proposals or provisions into

separate parts when the exclusive

representative files a response under

§ 2424.25.

I Content. You must file a petition for

review on a form that the Authority has

provided for that purpose, or in a

substantially similar format. You meet

this requirement if you file your petition

VerDate Sep<11>2014 16:24 Sep 11, 2023 Jkt 259001 PO 00000 Frm 00012 Fmt 4700 Sfmt 4700 E:\FR\FM\12SER1.SGM 12SER1

lotter on DSK11XQN23PROD with RULES1

62457

Federal Register / Vol. 88, No. 175 / Tuesday, September 12, 2023 / Rules and Regulations

electronically through use of the eFiling

system on the FLRA’s website at

www.flra.gov. That website also

provides copies of petition forms. You

must date the petition, unless you file

it electronically through use of the

FLRA’s eFiling system. And, regardless

of how you file the petition, you must

ensure that it includes the following:

(1) The exact wording and

explanation of the meaning of the

proposal or provision, including an

explanation of special terms or phrases,

technical language, or other words that

are not in common usage, as well as

how the proposal or provision is

intended to work;

(2) Specific citation to any law, rule,

regulation, section of a collective

bargaining agreement, or other authority

that you rely on in your argument or

that you reference in the proposal or

provision, and a copy of any such

material that the Authority cannot easily

access (which you may upload as

attachments if you file the petition

electronically through use of the FLRA’s

eFiling system);

(i) An explanation of how the cited

law, rule, regulation, section of a

collective bargaining agreement, or

other authority relates to your argument,

proposal, or provision;

(ii) [Reserved]

(3) A statement as to whether the

proposal or provision is also involved in

an unfair labor practice charge under

part 2423 of this subchapter, a grievance

pursuant to the parties’ negotiated

grievance procedure, or an impasse

procedure under part 2470 of this

subchapter, and whether any other

petition for review has been filed

concerning a proposal or provision

arising from the same bargaining or the

same agency head review;

(i) Documents relevant to the

statement, including a copy of any

related unfair labor practice charge,

grievance, request for impasse

assistance, or other petition for review;

and

(ii) [Reserved]

(4) Any request for a hearing before

the Authority and the reasons

supporting such request, with the

understanding that the Authority rarely

grants such requests.

■8. Revise § 2424.23 to read as follows:

§ 2424.23 Post-petition conferences;

conduct and record.

(a) Scheduling a post-petition

conference. The FLRA will, in its

discretion, schedule a post-petition

conference to be conducted by an FLRA

representative by telephone, in person,

or through other means. Unless the

Authority or an FLRA representative

directs otherwise, parties must observe

all time limits in this part, regardless of

whether a post-petition conference is

conducted or may be conducted.

(b) Conduct of conference. The post-

petition conference will be conducted

with representatives of the exclusive

representative and the agency, who

must be prepared and authorized to

discuss, clarify, and resolve matters

including the following:

(1) The meaning of the proposal or

provision in dispute;

(2) Any disputed factual issue(s);

(3) Negotiability dispute objections

and bargaining obligation claims

regarding the proposal or provision; and

(4) Status of any proceedings—

including an unfair labor practice

charge under part 2423 of this

subchapter, a grievance under the

parties’ negotiated grievance procedure,

or an impasse procedure under part

2470 of this subchapter—that are

directly related to the negotiability

petition.

Ö Discretionary extension of time

limits. The FLRA representative may, on

determining that it will effectuate the

purposes of the Federal Service Labor-

Management Relations Statute, 5 U.S.C.

7101 et seq., and this part, extend the

time limits for filing the agency’s

statement of position and any

subsequent filings.

(d) Record of the conference. After the

post-petition conference has been

completed, the FLRA representative will

prepare, and the FLRA will serve on the

parties, a written record that includes

whether the parties agree on the

meaning of the disputed proposal or

provision, the resolution of any

disputed factual issues, and any other

appropriate matterÖ

(e) Hearings. Instead of, or in addition

to, conducting a post-petition

conference, the Authority may exercise

its discretion under § 2424.31 to hold a

hearing or take other appropriate action

to aid in decision making.

■9. Revise § 2424.24 to read as follows:

§ 2424.24 Agency’s statement of position;

purpose; time limits; content; service.

(a) Purpose. The purpose of the

agency’s statement of position is to

inform the Authority and the exclusive

representative why a proposal or

provision is outside the duty to bargain

or contrary to law, respectively, and

whether the agency disagrees with any

facts or arguments made by the

exclusive representative in the petition.

(b) Time limit for filing. Unless the

time limit for filing has been extended

pursuant to § 2424.23 or part 2429 of

this subchapter, the agency must file its

statement of position within thirty (30)

days after the date the head of the

agency receives a copy of the petition

for review.

I Content. You must file your

statement of position on a form that the

Authority has provided for that purpose,

or in a substantially similar format. You

meet this requirement if you file your

statement electronically through use of

the eFiling system on the FLRA’s

website at www.flra.gov. That website

also provides copies of statement forms.

You must date your statement, unless

you file it electronically through use of

the eFiling system. And, regardless of

how you file your statement, your

statement must:

(1) Withdraw either:

(i) The allegation that the duty to

bargain in good faith does not extend to

the exclusive representative’s proposal,

or

(ii) The disapproval of the provision

under 5 U.S.C. 7114(c); or

(2) Set forth in full your position on

any matters relevant to the petition that

you want the Authority to consider in

reaching its decision, including: A

statement of the arguments and

authorities supporting any bargaining

obligation or negotiability claims; any

disagreement with claims that the

exclusive representative made in the

petition for review; specific citation to,

and explanation of the relevance of, any

law, rule, regulation, section of a

collective bargaining agreement, or

other authority on which you rely; and

a copy of any such material that the

Authority may not easily access (which

you may upload as attachments if you

file your statement of position

electronically through use of the FLRA’s

eFiling system). Your statement of

position must also include the

following:

(i) If different from the exclusive

representative’s position, an explanation

of the meaning the agency attributes to

the proposal or provision and the

reasons for disagreeing with the

exclusive representative’s explanation

of meaning;

(ii) If different from the exclusive

representative’s position, an explanation

of how the proposal or provision would

work, and the reasons for disagreeing

with the exclusive representative’s

explanation;

(3) Status of any proceedings—

including an unfair labor practice

charge under part 2423 of this

subchapter, a grievance under the

parties’ negotiated grievance procedure,

or an impasse procedure under part

2470 of this subchapter—that are

directly related to the negotiability

petition, and whether any other petition

for review has been filed concerning a

VerDate Sep<11>2014 16:24 Sep 11, 2023 Jkt 259001 PO 00000 Frm 00013 Fmt 4700 Sfmt 4700 E:\FR\FM\12SER1.SGM 12SER1

lotter on DSK11XQN23PROD with RULES1

62458

Federal Register / Vol. 88, No. 175 / Tuesday, September 12, 2023 / Rules and Regulations

proposal or provision arising from the

same bargaining or the same agency

head review;

(i) If they have not already been

provided with the petition, documents

relevant to the status updates, including

a copy of any related unfair labor

practice charge, grievance, request for

impasse assistance, or other petition for

review; and

(ii) [Reserved]

(4) Any request for a hearing before

the Authority and the reasons

supporting such request, with the

understanding that the Authority rarely

grants such requests.

(d) Service. A copy of the agency’s

statement of position, including all

attachments, must be served in accord

with § 2424.2(g).

■10. Revise paragraphs (a) through (c)

of § 2424.25 to read as follows:

§ 2424.25 Response of the exclusive

representative; purpose; time limits;

content; severance; service.

(a) Purpose. The purpose of the

exclusive representative’s response is to

inform the Authority and the agency

why, despite the agency’s arguments in

its statement of position, the proposal or

provision is within the duty to bargain

or not contrary to law, respectively, and

whether the exclusive representative

disagrees with any facts or arguments in

the agency’s statement of position.

(b) Time limit for filing. Unless the

time limit for filing has been extended

pursuant to § 2424.23 or part 2429 of

this subchapter, within fifteen (15) days

after the date the exclusive

representative receives a copy of an

agency’s statement of position, the

exclusive representative must file a

response.

© Content. You must file your

response on a form that the Authority

has provided for that purpose, or in a

substantially similar format. You meet

this requirement if you file your

response electronically through use of

the eFiling system on the FLRA’s

website at www.flra.gov. That website

also provides copies of response forms.

With the exception of severance under

paragraph (d) of this section, you must

limit your response to the matters that

the agency raised in its statement of

position. You must date your response,

unless you file it electronically through

use of the FLRA’s eFiling system. And,

regardless of how you file your

response, you must ensure that it

identifies any disagreement with the

agency’s bargaining obligation or

negotiability claims. You must: State the

arguments and authorities supporting

your opposition to any agency

argument; include specific citation to,

and explanation of the relevance of, any

law, rule, regulation, section of a

collective bargaining agreement, or

other authority on which you rely; and

provide a copy of any such material that

the Authority may not easily access

(which you may upload as attachments

if you file your response electronically

through use of the FLRA’s eFiling

system). You are not required to repeat

arguments that you made in your

petition for review. If not included in

the petition for review, then you must

state the arguments and authorities

supporting your position on all of the

relevant bargaining obligation and

negotiability matters identified in

§ 2424.2(a) and (c), respectively.

(d) Severance. The exclusive

representative may, of its own accord,

accomplish the severance of a

previously submitted proposal or

provision. To accomplish severance, the

exclusive representative must identify

the proposal or provision that the

exclusive representative is severing and

set forth the exact wording of the newly

severed portion(s). Further, as part of

the exclusive representative’s

explanation and argument about why

the newly severed portion(s) are within

the duty to bargain or not contrary to

law, the exclusive representative must

explain how the severed portion(s)

stand alone with independent meaning,

and how the severed portion(s) would

operate. The explanation and argument

in support of the severed portion(s)

must meet the same requirements for

specific information set forth in

paragra©(c) of this section, and must

satisfy the exclusive representative’s

burdens under § 2424.32.

* * * * *

■11. Revise § 2424.26 to read as

follows:

§ 2424.26 Agency’s reply; purpose; time

limits; content; service.

(a) Purpose. The purpose of the

agency’s reply is to inform the Authority

and the exclusive representative

whether and why it disagrees with any

facts or arguments made for the first

time in the exclusive representative’s

response.

(b) Time limit for filing. Unless the

time limit for filing has been extended

pursuant to § 2424.23 or part 2429 of

this subchapter, within fifteen (15) days

after the date the agency receives a copy

of the exclusive representative’s

response to the agency’s statement of

position, the agency may file a reply.

(c) Content. You must file your reply

on a form that the Authority has

provided for that purpose, or in a

substantially similar format. You meet

this requirement if you file your reply

electronically through use of the eFiling

system on the FLRA’s website at

www.flra.gov. That website also

provides copies of reply forms. You

must limit your reply to matters that the

exclusive representative raised for the

first time in its response. You must date

your reply, unless you file it

electronically through use of the FLRA’s

eFiling system. And, regardless of how

you file your reply, you must ensure

that it identifies any disagreement with

the exclusive representative’s assertions

in its response, including your

disagreements with assertions about the

bargaining obligation and negotiability

matters identified in § 2424.2(a) and (c),

respectively. You must: State the

arguments and authorities supporting

your position; include specific citation

to, and explanation of the relevance of,

any law, rule, regulation, section of a

collective bargaining agreement, or

other authority on which you rely; and

provide a copy of any such material that

the Authority may not easily access

(which you may upload as attachments

if you file your reply electronically

through use of the FLRA’s eFiling

system). You are not required to repeat

arguments that you made in your

statement of position.

(d) Service. A copy of the agency’s

reply, including all attachments, must

be served in accord with § 2424.2(g).

■12. Revise § 2424.27 to read as

follows:

§ 2424.27 Additional submissions to the

Authority.

The Authority will not consider any

submission filed by any party other than

those authorized under this part,

provided however that the Authority

may, in its discretion, grant permission

to file an additional submission based

on a written request showing

extraordinary circumstances by any

party. The additional submission must

be filed with the written request. All

documents filed under this section must

be served in accord with § 2424.2(g).

■13. Revise § 2424.30 to read as

follows:

§ 2424.30 Procedure through which the

petition for review will be resolved.

(a) Exclusive representative has filed

related unfair labor practice charge or

grievance alleging an unfair labor

practice. Except for proposals or

provisions that are the subject of an

agency’s compelling need claim under 5

U.S.C. 7117(a)(2), the Authority will

dismiss a petition for review when an

exclusive representative files an unfair

labor practice charge pursuant to part

2423 of this subchapter or a grievance

alleging an unfair labor practice under

VerDate Sep<11>2014 16:24 Sep 11, 2023 Jkt 259001 PO 00000 Frm 00014 Fmt 4700 Sfmt 4700 E:\FR\FM\12SER1.SGM 12SER1

lotter on DSK11XQN23PROD with RULES1

62459

Federal Register / Vol. 88, No. 175 / Tuesday, September 12, 2023 / Rules and Regulations

the parties’ negotiated grievance

procedure, and the charge or grievance

concerns issues directly related to the

petition for review filed pursuant to this

part. The dismissal will be without

prejudice to the right of the exclusive

representative to refile the petition for

review after the unfair labor practice

charge or grievance has been resolved

administratively, including resolution

pursuant to an arbitration award that

has become final and binding. No later

than thirty (30) days after the date on

which the unfair labor practice charge

or grievance is resolved

administratively, the exclusive

representative may refile the petition for

review, and the Authority will

determine whether resolution of the

petition is still required. For purposes of

this subsection, a grievance is resolved

administratively when:

(1) The exclusive representative

withdraws the grievance;

(2) The parties mutually resolve the

grievance;

(3) An arbitrator has issued an award

resolving the grievance, and the 30-day

period under 5 U.S.C. 7122(b) has

passed without an exception being filed;

or

(4) An arbitrator has issued an award

resolving the grievance, a party has filed

an exception to that award, and the

Authority has issued a decision

resolving that exception.

(b) Exclusive representative has not

filed related unfair labor practice charge

or grievance alleging an unfair labor

practice. The petition will be processed

as follows:

(1) No bargaining obligation dispute

exists. The Authority will resolve the

petition for review under the procedures

of this part.

(2) A bargaining obligation dispute

exists. The exclusive representative may

have an opportunity to file an unfair

labor practice charge pursuant to part

2423 of this subchapter or a grievance

under the parties’ negotiated grievance

procedure concerning the bargaining

obligation dispute, and, where the

exclusive representative pursues either

of these courses, the Authority will

proceed in accord with paragraph (a) of

this section. If the exclusive

representative does not file an unfair

labor practice charge or grievance

concerning the bargaining obligation

dispute, then the Authority will proceed

to resolve all disputes necessary for

disposition of the petition unless, in its

discretion, the Authority determines

that resolving all disputes is not

appropriate because, for example,

resolution of the bargaining obligation

dispute under this part would unduly

delay resolution of the negotiability

dispute, or the procedures in another,

available administrative forum are better

suited to resolve the bargaining

obligation dispute.

■14. Amend § 2424.31 by revising the

heading, introductory text, and

paragraph © to read as follows:

§ 2424.31 Hearings and other appropriate

action.

When necessary to resolve disputed

issues of material fact in a negotiability

or bargaining obligation dispute, or

when it would otherwise aid in decision

making, the Authority, or its designated

representative, may, in its discretion:

* * * * *

(c) Refer the matter to a hearing

pursuant to 5 U.S.C. 7117(b)(3) or (c)(5);

or

* * * * *

■15. Revise § 2424.32 to read as

follows:

§ 2424.32 Parties’ responsibilities; failure

to raise, support, or respond to arguments;

failure to participate in conferences or

respond to Authority orders.

(a) Responsibilities of the exclusive

representative. The exclusive

representative has the burden of

explaining the meaning, operation, and

effects of the proposal or provision; and

raising and supporting arguments that

the proposal or provision is within the

duty to bargain, within the duty to

bargain at the agency’s election, or not

contrary to law, respectively.

(b) Responsibilities of the agency. The

agency has the burden of explaining the

agency’s understanding of the meaning,

operation, and effects of the proposal or

provision, if the agency disagrees with

the exclusive representative’s

explanations; and raising and

supporting arguments that the proposal

or provision is outside the duty to

bargain or contrary to law, respectively.

(c) Responsibilities to sufficiently

explain. Each party has the burden to

give sufficiently detailed explanations

to enable the Authority to understand

the party’s position regarding the

meaning, operation, and effects of a

proposal or provision. A party’s failure

to provide such explanations may affect

the Authority’s decision in a manner

that is adverse to the party.

(d) Failure to raise, support, or

respond to arguments.

(1) Failure to raise and support an

argument may, in the Authority’s

discretion, be deemed a waiver of such

argument. Absent good cause:

(i) Arguments that could have been

but were not raised by an exclusive

representative in the petition for review,

or made in its response to the agency’s

statement of position, may not be made

in this or any other proceeding; and

(ii) Arguments that could have been

but were not raised by an agency in the

statement of position, or made in its

reply to the exclusive representative’s

response, may not be raised in this or

any other proceeding.

(2) Failure to respond to an argument

or assertion raised by the other party

may, in the Authority’s discretion, be

treated as conceding such argument or

assertio©(e) Failure to participate in

conferences; failure to respond to

Authority orders. Where a party fails to

participate in a post-petition conference

pursuant to § 2424.23, a direction or

proceeding under § 2424.31, or

otherwise fails to provide timely or

responsive information pursuant to an

Authority order, including an Authority

procedural order directing the

correction of technical deficiencies in

filing, the Authority may, in addition to

those actions set forth in paragraph (d)

of this section, take any other action

that, in the Authority’s discretion, it

deems appropriate, including dismissal

of the petition for review (with or

without prejudice to the exclusive

representative’s refiling of the petition

for review), and granting the petition for

review and directing bargaining or

rescission of an agency head

disapproval under 5 U.S.C. 7114(c)

(with or without conditions).

■16. Amend § 2424.40 by revising

paragraphs (b) and (c) to read as follows:

§ 2424.40 Authority decision and order.

* * * * *

(b) Cases involving proposals. If the

Authority finds that the duty to bargain

extends to the proposal, then the

Authority will order the agency to

bargain concerning the proposal. If the

Authority finds that the duty to bargain

does not extend to the proposal, then

the Authority will dismiss the petition

for review as to that proposal. If the

Authority finds that the proposal is

bargainable only at the election of the

agency, then the Authority will so state.

If the Authority resolves a negotiability

dispute by finding that a proposal is

within the duty to bargain, but there are

unresolved bargaining obligation

dispute claims, then the Authority will

order the agency to bargain in the event

its bargaining obligation claims are

resolved in a manner that requires

bargaining.

(d) Cases involving provisions. If the

Authority finds that a provision is not

contrary to law, rule, or regulation, or is

bargainable at the election of the agency,

then the Authority will direct the

agency to rescind its disapproval of

VerDate Sep<11>2014 16:24 Sep 11, 2023 Jkt 259001 PO 00000 Frm 00015 Fmt 4700 Sfmt 4700 E:\FR\FM\12SER1.SGM 12SER1

lotter on DSK11XQN23PROD with RULES1

62460

Federal Register / Vol. 88, No. 175 / Tuesday, September 12, 2023 / Rules and Regulations

such provision in whole or in part as

appropriate. If the Authority finds that

a provision is contrary to law, rule, or

regulation, then the Authority will

dismiss the petition for review as to that

provision.

■17. Revise § 2424.41 to read as

follows:

§ 2424.41 Compliance.

The exclusive representative may

report to the appropriate Regional

Director an agency’s failure to comply

with an order issued in accordance with

§ 2424.40. The exclusive representative

must report such failure within a

reasonable period of time following

expiration of the 60-day period under 5

U.S.C. 7123(a), which begins on the date

of issuance of the Authority order. If, on

referral from the Regional Director, the

Authority finds such a failure to comply

with its order, the Authority will take

whatever action it deems necessary to

secure compliance with its order,

including enforcement under 5 U.S.C.

7123(b).

■18. Amend § 2424.50 by revising the

introductory text to read as follows:

§ 2424.50 Illustrative criteria.

A compelling need exists for an

agency rule or regulation concerning

any condition of employment when the

rule or regulation was issued by the

agency or any primary national

subdivision of the agency, and the

agency demonstrates that the rule or

regulation satisfies one of the following

illustrative criteria:

* * * * *

Approved: August 31, 2023.

Rebecca J. Osborne,

Federal Register Liaison, Federal Labor

Relations Authority.

[FR Doc. 2023–19269 Filed 9–11–23; 8:45 am]

BILLING CODE 7627–01–P

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 71

[Docket No. FAA–2023–1389; Airspace

Docket No. 23–AGL–19]

RIN 2120–AA66

Amendment of Class E Airspace;

Quincy, IL

AGENCY

: Federal Aviation

Administration (FAA), DOT.

ACTION

: Final rule.

SUMMARY

: This action amends the Class

E airspace at Quincy, IL. This action is

the result of an airspace review caused

by the decommissioning of the Quincy

very high frequency omnidirectional

range (VOR) as part of the VOR

Minimum Operating Network (MON)

Program. The name and geographic

coordinates of the airport and name of

the navigational aid are also being

updated to coincide with the FAA’s

aeronautical database.

DATES

: Effective 0901 UTC, November

30, 2023. The Director of the Federal

Register approves this incorporation by

reference action under 1 CFR part 51,

subject to the annual revision of FAA

Order JO 7400.11 and publication of

conforming amendments.

ADDRESSES

: A copy of the Notice of

Proposed Rulemaking (NPRM), all

comments received, this final rule, and

all background material may be viewed

online at www.regulations.gov using the

FAA Docket number. Electronic

retrieval help and guidelines are

available on the website. It is available

24 hours each day, 365 days each year.

FAA Order JO 7400.11G, Airspace

Designations and Reporting Points, and

subsequent amendments can be viewed

online at www.faa.gov/air_traffic/

publications/. You may also contact the

Rules and Regulations Group, Office of

Policy, Federal Aviation

Administration, 800 Independence

Avenue SW, Washington DC 20591;

telephone: (202) 267–8783.

FOR FURTHER INFORMATION CONTACT

:

Jeffrey Claypool, Federal Aviation

Administration, Operations Support

Group, Central Service Center, 10101

Hillwood Parkway, Fort Worth, TX

76177; telephone (817) 222–5711.

SUPPLEMENTARY INFORMATION

:

Authority for This Rulemaking

The FAA’s authority to issue rules

regarding aviation safety is found in

Title 49 of the United States Code.

Subtitle I, Section 106 describes the

authority of the FAA Administrator.

Subtitle VII, Aviation Programs,

describes in more detail the scope of the

agency’s authority. This rulemaking is

promulgated under the authority

described in Subtitle VII, Part A,

Subpart I, Section 40103. Under that

section, the FAA is charged with

prescribing regulations to assign the use

of airspace necessary to ensure the

safety of aircraft and the efficient use of

airspace. This regulation is within the

scope of that authority as it amends the

Class E surface airspace and the Class E

airspace extending upward from 700

feet above the surface at Quincy

Regional Airport-Baldwin Field, Quincy

IL, to support instrument flight rule

(IFR) operations at this airport.

History

The FAA published an NPRM for

Docket No. FAA–2023–1389 in the

Federal Register (88 FR 41337; June 26,

2023) proposing to amend the Class E

airspace at Quincy IL. Interested parties

were invited to participate in this

rulemaking effort by submitting written

comments on the proposal to the FAA.

No comments were received.

Incorporation by Reference

Class E airspace designations are

published in paragraphs 6002 and 6005

of FAA Order JO 7400.11, Airspace

Designations and Reporting Points,

which is incorporated by reference in 14

CFR 71.1 on an annual basis. This

document amends the current version of

that order, FAA Order JO 7400.11G,

dated August 19, 2022, and effective

September 15, 2022. FAA Order JO

7400.11G is publicly available as listed

in the

ADDRESSES

section of this

document. These amendments will be

published in the next update to FAA

Order JO 7400.11.

FAA Order JO 7400.11G lists Class A,

B, C, D, and E airspace areas, air traffic

service routes, and reporting points.

The Rule

This amendment to 14 CFR part 71:

Modifies the Class E surface airspace

to within a 4.3-mile (increased from a

4.2-mile) radius of Quincy Regional

Airport-Baldwin Field, Quincy, IL;

removes the Quincy VORTAC and

associated extension from the airspace

legal description; updates the name

(previously Quincy Municipal Baldwin

Field) and geographic coordinates of the

airport to coincide with the FAA’s

aeronautical database; and replaces the

outdated terms ‘‘Notice to Airmen’’ with

‘‘Notice to Air Missions’’ and ‘‘Airport/

Facility Directory’’ with ‘‘Chart

Supplement’’;

And modifies the Class E airspace

extending upward from 700 feet above

the surface to within a 6.8-mile

(decreased from a 7.1-mile) radius of

Quincy Regional Airport-Baldwin Field;

amends the extension to the southwest

to within 4 miles each side (previously

4.4 miles northwest and 7 miles

southeast) of the 220° bearing from the

Quincy RGNL-Baldwin FLD: RWY 04—

Marker Beacon (previously Quincy ILS

localizer southwest course) extending

from the 6.8-mile (previously 7-mile)

radius of the Quincy Regional Airport-

Baldwin Field to 9.8 miles (previously

10.4 miles) southwest of the Quincy

RGNL-Baldwin FLD: RWY 04—Marker

Beacon (previously Quincy LOM/NDB);

and updates the name and geographic

coordinates of Quincy Regional Airport-

VerDate Sep<11>2014 16:24 Sep 11, 2023 Jkt 259001 PO 00000 Frm 00016 Fmt 4700 Sfmt 4700 E:\FR\FM\12SER1.SGM 12SER1

lotter on DSK11XQN23PROD with RULES1