[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]



 ========================================================================
 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. 
 
 ========================================================================
 

  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.

-----------------------------------------------------------------------

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]
BILLING CODE 7627-01-P