[Federal Register Volume 88, Number 221 (Friday, November 17, 2023)]
[Rules and Regulations]
[Pages 80091-80092]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-25300]
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Rules and Regulations
Federal Register
________________________________________________________________________
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.
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Federal Register / Vol. 88, No. 221 / Friday, November 17, 2023 /
Rules and Regulations
[[Page 80091]]
FEDERAL LABOR RELATIONS AUTHORITY
5 CFR Part 2429
Miscellaneous and General Requirements
AGENCY: Federal Labor Relations Authority.
ACTION: Final rule.
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SUMMARY: This final rule adopts, with one minor change, a proposed rule
published in the Federal Register on September 29, 2023. The final rule
specifies that, if parties wish to file documents with the Federal
Labor Relations Authority's (FLRA's) Office of Case Intake and
Publication (CIP) in person, then they must schedule an appointment at
least one business day in advance. The final rule also makes other
minor technical and formatting changes. In addition, like the proposed
rule, the final rule specifies that documents filed through the FLRA's
electronic-filing (eFiling) system must be filed electronically by
``11:59 p.m.,'' rather than ``midnight,'' on the due date. However,
unlike the proposed rule, the final rule specifies that the 11:59 p.m.
filing deadline is ``Eastern Time.''
DATES: This final rule is effective on December 18, 2023.
FOR FURTHER INFORMATION CONTACT: Erica Balkum, Chief, Office of Case
Intake and Publication at [email protected] or at: (771) 444-5805.
SUPPLEMENTARY INFORMATION: On September 29, 2023, in 88 FR 67117, the
FLRA's three-Member, decisional component (the Authority) proposed to
amend 5 CFR 2429.24(a) to revise the rules regarding filing documents
in cases before the Authority (as distinct from the FLRA's General
Counsel, Regional Directors, or Administrative Law Judges).
Specifically, the Authority proposed to revise 5 CFR 2429.24(a) to
eliminate the references to parties being: (1) able to file documents
with CIP between 9 a.m. and 5 p.m. E.T., Monday through Friday (except
federal holidays), and (2) required to file any hand-delivered
documents by 5 p.m. E.T. Instead, the proposed revisions would specify
that: (1) to file documents with CIP by personal delivery, parties must
schedule an appointment at least one business day in advance by calling
CIP; and (2) personal delivery will be accepted by appointment Monday
through Friday (except federal holidays). In addition, the proposed
revisions would: (1) update CIP's phone number to (771) 444-5805; (2)
delete the period after ``NW'' in CIP's mailing address; (3) change the
term ``hand delivery'' to ``personal delivery''; (4) change the eFiling
deadline from ``midnight E.T.'' on the due date to ``11:59 p.m.'' on
the due date; and (5) in the second-to-last sentence of the regulation,
change ``federal legal documents'' to ``federal legal holidays.''
The FLRA invited written comments on the proposed rule, stating
that any such comments must be received by the FLRA by October 30,
2023. The FLRA received only two comments: one from an individual, and
the second from a union.
The individual commenter states that it is unclear from the
proposed rule whether the Authority intends for the new eFiling
deadline to be 11:59 p.m. ``Eastern Time.'' The commenter notes that
the current version of 5 CFR 2429.24(a) specifies that the deadline is
Eastern Time, but the proposed rule does not do so.
The proposed rule's deletion of Eastern Time in connection with
eFiling was inadvertent. Therefore, the final rule revises the proposed
rule to specify that the 11:59 eFiling deadline is 11:59 p.m. Eastern
Time.
The union commenter opposes the proposed rule's requirement that
parties who wish to file documents with CIP in person must schedule an
appointment at least one business day in advance. First, the commenter
notes that, in the Federal Register notice for the proposed rule, the
Authority relied on the fact that no parties filed documents in person
since in-person filing was reinstated on May 30, 2023. According to the
union commenter, the FLRA did not publicize or tell parties about the
May 30, 2023 reinstatement of in-person filing, so the absence of in-
person filers since that date does not support the proposed rule.
Second, the union commenter claims that the National Labor Relations
Board (NLRB) allows in-person filing without an appointment, and there
is no justification for the FLRA having a different rule. Third, the
union commenter asserts that recent Executive Branch policies and
proposed federal legislation are aimed at increasing in-person services
at federal agency offices, and the proposed rule would conflict with
those aims.
In response to the union commenter's first assertion, even assuming
parties were unaware of the resumption of in-person-filing availability
on May 30, 2023--despite the FLRA's Web site being updated to
prominently note that resumption--that does not undercut the
Authority's broader point that, even pre-pandemic, in-person filing was
rare. In fact, even since the proposed rule was published in the
Federal Register--which was also announced by a press release the same
day--CIP has received only two in-person filings. As such, the alleged
absence of publicity surrounding the resumption of in-person filing
does not undercut the notion that in-person filing is rarely used.
With regard to the assertions concerning the NLRB, as an initial
matter, it is not clear that the filing practices of the FLRA should
necessarily mirror those of the NLRB--a much larger agency, with far
more staff and regulated parties, than the FLRA. In any event, the
NLRB's filing regulations do not set forth standard hours when parties
may file in person--and, in fact, they generally require parties to
eFile documents. See 29 CFR 102.5(c) (specifying that, ``[u]nless
otherwise permitted under this section, all documents filed in cases
before the Agency must be filed electronically (`E-Filed') on the
Agency's website''). In this regard, NLRB guidance provides that in-
person filing is permitted ``only if the filer does not have access to
the means for filing electronically or filing electronically would
impose an undue burden.'' NLRB, Guide to Board Procedures 3 (2023),
https://www.nlrb.gov/sites/default/files/attachments/pages/node-174/guide-to-board-procedures-2023.pdf. The FLRA's proposed requirement to
schedule in-person filing in advance--which does not in any way limit
which parties may engage in such filing--is arguably even
[[Page 80092]]
less restrictive than the NLRB's requirements.
Finally, we acknowledge that there recently has been an increased
focus on the resumption of certain in-person services at federal agency
offices. However, nothing in the proposed rule would eliminate in-
person filing; it would simply require one business day's advance
notice in order to engage in such filing. Further, the resumption of
certain in-person services does not undercut agencies' and courts'
general trend of favoring eFiling over in-person filing, based on
eFiling's numerous advantages for both parties and agencies. See, for
example, IRS, Exempt Organizations e-file: Benefits of e-file,
available at https://www.irs.gov/charities-non-profits/exempt-organizations-e-file-benefits-of-e-file.
In addition, as discussed in greater detail in the Federal Register
notice for the proposed rule, there are multiple reasons for this
proposed change. Specifically: even before the COVID-19 pandemic, it
was rare for parties to file with CIP in person; there are multiple
other, easily accessible methods of filing documents with CIP; the FLRA
desires to strongly encourage parties to use eFiling whenever possible;
and CIP has limited staffing, which could become even more limited if
budgetary or other considerations preclude the FLRA from filling
positions as they become vacant.
For these reasons, the Authority has not modified the proposed
rule's requirement for parties to schedule in-person filing at least
one business day in advance. Therefore, with the one minor modification
discussed above--adding ``Eastern Time'' to the eFiling deadline--the
Authority adopts the rule as originally proposed.
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 rule
would not have a significant impact on a substantial number of small
entities, because this rule would apply 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 rule would 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 would 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 rule
would 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 rule contains 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 2429
Administrative practice and procedure, Government employees, Labor
management relations.
For the reasons stated in the preamble, the FLRA amends 5 CFR part
2429 as follows:
PART 2429--MISCELLANEOUS AND GENERAL REQUIREMENTS
0
1. The authority citation for part 2429 continues to read as follows:
Authority: 5 U.S.C. 7134; Sec. 2429.18 also issued under 28
U.S.C. 2112(a).
0
2. Amend Sec. 2429.24 by revising paragraph (a) to read as follows:
Sec. 2429.24 Place and method of filing; acknowledgment.
(a) Except for documents that are filed electronically through use
of the eFiling system on the FLRA's website at www.flra.gov, anyone who
files a document with the Authority (as distinguished from the General
Counsel, a Regional Director, or an Administrative Law Judge) must file
that document with the Chief, Case Intake and Publication, Federal
Labor Relations Authority, Docket Room, Suite 200, 1400 K Street NW,
Washington, DC 20424-0001 (telephone: (771) 444-5805). To file
documents by personal delivery, you must schedule an appointment at
least one business day in advance by calling the telephone number in
the previous sentence. Personal delivery is accepted by appointment
Monday through Friday (except federal holidays). If you file documents
electronically through use of the FLRA's eFiling system, then you may
file those documents on any calendar day--including Saturdays, Sundays,
and federal legal holidays--and the Authority will consider those
documents filed on a particular day if you file them no later than
11:59 p.m. Eastern Time on that day. Note, however, that although you
may eFile documents on Saturdays, Sundays, and federal legal holidays,
you are not required to do so. Also note that you may not file
documents with the Authority by electronic mail (``email'').
* * * * *
Approved: November 13, 2023.
Thomas Tso,
Solicitor and Federal Register Liaison, Federal Labor Relations
Authority.
[FR Doc. 2023-25300 Filed 11-16-23; 8:45 am]
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