The Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. 7101-7135, grants the Authority the power and responsibility to “determine the appropriateness of units,” id. 7105(a)(2)(A); “supervise or conduct elections” and “otherwise administer the provisions . . . [of the Statute] relating to the according of exclusive recognition,” id. 7105(a)(2)(B); “prescribe criteria and resolve issues relating to the granting of national consultation rights,” id. 7105(a)(2)(C); “prescribe criteria relating to the granting of consultation rights with respect to conditions of employment,” id. 7105(a)(2)(F); and “take such other actions as are necessary and appropriate to effectively administer [the Statute],” id. 7105(a)(2)(I). From 1979 until 1983, the Authority exercised those powers directly. But since 1983, the Authority has delegated to Regional Directors (RDs) its power and responsibility to determine whether a group of employees is an appropriate bargaining unit, to conduct investigations and to provide for hearings in representation matters, to determine whether a question of representation exists and to direct an election, and to supervise or conduct secret ballot elections and certify the results thereof. See id. 7105(e)(1); Amendment to Memo. Describing the Authority & Assigned Responsibilities of the General Counsel of the FLRA, 48 FR 28814 (June 23, 1983) (amending memorandum so as to delegate authority and responsibility to RDs in representation cases); Processing of Cases; General Requirements, 48 FR 40189 (Sept. 6, 1983) (revising regulations to implement the amendment to the memorandum). The Authority established a process to review the actions of RDs in those areas of delegated responsibility. See 5 U.S.C. 7105(f); Processing of Cases; General Requirements, 48 FR at 40190-95 (establishing § 7105(f) appeals process).

The delegation of authority to the RDs appears in section I.C. of a memorandum published as Appendix B to 5 CFR Chapter XIV. An amendment to section I.C. of Appendix B—published elsewhere in this issue of the Federal Register —will be effective on the date on which this interim final rule is effective.

The associated regulations appear in 5 CFR part 2421, which defines certain terms used in other regulations; parts 2422 and 2426, which, respectively, govern the processing of representation cases and consultation-rights cases by the Authority and the RDs; and part 2429, which establishes miscellaneous and general requirements for parties in cases before the Authority and the RDs. To simplify the discussion of these regulations, in the SUPPLEMENTARY INFORMATION only, both representation and consultation-rights cases will be referred to as “representation matters.”

Under the current regulations, the Authority may review RDs' initial decisions in representation matters if an appeal is filed with the Authority. (Although the Authority's regulations refer to this appeal as an “application for review,” again for simplicity in the SUPPLEMENTARY INFORMATION only, “appeal” is sometimes used instead of “application for review.”) However, the scope of the Authority's review is limited to the grounds set forth at 5 CFR 2422.31(c), and parties generally may not raise issues for review that they did not already present to the RD. In addition, under the existing process, in a representation matter that is appealed to the Authority, the parties must make their arguments twice—once to the RD before an initial decision, and again to the Authority on appeal of that decision.

After reexamination of its practices, the FLRA finds that the memorandum of delegated authorities and responsibilities to the RDs, and the related regulations governing representation matters, merit revision. The FLRA envisions a streamlined process in which representation matters are resolved through the collaborative efforts of the regional offices and the Authority—rather than a strict separation of an initial decision by an RD, followed by a possible appeal to, and potentially duplicative decision by, the Authority.

In this new process, parties will continue filing all representation petitions with the regional offices, who will begin processing those petitions. When the processing of a case requires the exercise of one of the Authority's statutory responsibilities under § 7105(a) of the Statute, the Authority will make any determinations under § 7105(a)(2) that are required for the subsequent disposition of the case. Some representation matters may require the involvement of the Authority at several points in a case, whereas others may require a decision from the Authority only at the case's conclusion—such as when a decision and order issues.

Identifying the points within a case that require a decision by the Authority will be based on case-by-case considerations, but will always include the determinations specified in 5 U.S.C. 7105(e)(1). In the new process—after consultation with the regional offices—the Authority will: “determine whether a group of employees is an appropriate unit,” 5 U.S.C. 7105(e)(1)(A); authorize the regional offices or Authority staff to conduct all investigations and hearings, see id. 7105(e)(1)(B); “determine whether a question of representation exists and . . . direct an election,” id. 7105(e)(1)(C); and authorize the regional offices or Authority staff to “supervise or conduct elections,” after which the Authority will “certify the results thereof,” id. 7105(e)(1)(D).

Because the Authority will be performing these statutory functions itself, rather than delegating them to the RDs, an appeals process will no longer be necessary under § 7105(f) (except in no-quorum situations, which are addressed separately). In addition, parties will benefit from review by the Authority on all issues of importance in representation matters, without the parties needing to make their arguments twice, and without the need to file an appeal of an initial decision.

While the locus of ultimate decision-making will rest with the Authority, the Authority and regional offices will work collaboratively to resolve representation matters. For example, the Authority will consider the views of the regional offices when making decisions. As a result, the collective insights and experience of the regional offices and the Authority will shape the decisions that parties receive.

The FLRA anticipates that the regional offices will continue to conduct most investigations and hearings in representation matters after receiving the Authority's authorization, but Authority staff may also be assigned those duties as needed, consistent with § 7105(d) of the Statute. Further, the FLRA intends, in most cases, for the regional offices to continue conducting elections with the Authority's authorization, but the Authority will make decisions on election agreements and directions of election. Whereas, in most elections, the regional offices will continue to tally ballots and make determinations on election observers, the Authority will certify the results of elections. The Authority will address determinative challenged ballots in elections, and will decide all election objections concerning either the election process itself, or conduct that may have otherwise improperly affected the results of the election.

The FLRA recognizes, however, that this new process will not function as intended if the Authority loses a quorum—that is, in the event that the Authority has one or zero Members. This circumstance is a “special and temporary” condition. See United States v. Arthrex, Inc., 594 U.S. 1, 22 (2021) (citing United States v. Eaton, 169 U.S. 331, 343 (1898)). Consequently, the Authority is maintaining the current two-layered structure of initial decision and potential appeal only for representation matters that arise when the Authority lacks a quorum. In this way, the loss of an Authority quorum will not prevent parties from having their representation matters addressed.

Parties involved in representation matters that arise when the Authority lacks a quorum will have the right to file an appeal of an RD's action under 5 U.S.C. 7105(f), but that appeal can be addressed only when an Authority quorum is restored. See FDIC, 68 FLRA 260, 262 (2015) (finding that the Authority has sixty days while having a quorum to “undertake to grant review of [an] RD's decision,” or else “the RD's decision bec[o]me[s] `the action of the Authority'” (quoting 5 U.S.C. 7105(f))), vacating on reconsideration, 67 FLRA 430 (2014).

So that parties do not need to read through all the regulations to find the rules that apply only to matters that arise when the Authority lacks a quorum, the Authority has collected all of these special rules into their own sections in parts 2422 and 2426.

To implement the new process for representation matters, the FLRA must revise its regulations. Further, the FLRA is amending some regulations to make explicit how they operate. These changes, including those that make explicit the operation of some regulations, are set forth in this document.

In addition, the Authority must revoke its current delegation to the RDs in representation matters, and adopt a new delegation that is tailored to representation matters that arise when the Authority lacks a quorum. To accomplish those purposes, as previously stated, an amendment to section I.C. of Appendix B to 5 CFR Chapter XIV—published elsewhere in this issue of the Federal Register —will be effective on the date on which this interim final rule is effective.

The FLRA is also currently reexamining the manner in which it adjudicates unfair labor practices (ULPs), including who will hold hearings and draft recommended decisions in ULP cases. Nevertheless, the FLRA anticipates that those topics could be the subject of separate rulemaking. Accordingly, some of the regulations in parts 2421 and 2429 that concern administrative law judges (ALJs) and ULPs are left unchanged at this time because they could be addressed in future rulemaking, if necessary. There are two regulations concerning ALJs and ULPs that are being revised in this rulemaking because those regulations appear in part 2422, which primarily concerns representation matters. But all other changes concerning ALJs and ULPs will await possible future rulemaking.

The section below explains each change to the regulations in greater detail. The explanation of the amendment to section I.C. of Appendix B to 5 CFR Chapter XIV appears in the separate document published elsewhere in this issue of the Federal Register concerning that amendment.

Almost all of the explanations below assume that the Authority is functioning with a quorum, and the explanations should be read with that assumption in mind. But for regulations that apply only to representation matters that arise when the Authority lacks a quorum—that is, when the Authority has one or zero Members—see the discussions under §§ 2422.35 and 2426.21.

Section 2421.6 adds a sentence to the definition of “Regional Director.” This additional sentence explicitly reflects that when an RD acts to process representation matters on the Authority's behalf, the RD acts pursuant to an assignment of duties from the Authority under 5 U.S.C. 7105(d). Section 7105(d) allows the Authority to “delegate to officers and employees . . . authority to perform such duties . . . as may be necessary.” 5 U.S.C. 7105(d).

“FLRA” replaces “Regional Director” as the entity approving an election agreement to reflect that, while RDs will continue processing petitions that prompt elections and RDs will continue assisting parties in drafting election agreements, the Authority will make all final decisions on approving election agreements.

Section 2421.23 adds a new definition of “FLRA” that applies only to § 2421.20 and parts 2422 and 2426. This definition explains that, as a matter of agency organization, the use of “FLRA” in these places could indicate the involvement of employees or officials from either the Authority (including Members) or the regional offices (including RDs), or a combination of the two. Parties should generally file all documents with the appropriate RD, and parties will be informed in the course of their specific cases if they must file their documents with, or serve their documents on the Authority—instead of, or in addition to—the regional office (or RD). The one exception is motions for reconsideration under § 2429.17, which must always be filed directly with the Authority.

Section 2422.3(c) is amended to correct an inadvertent typographical error. The current regulation refers to the U.S. Code, but it should refer to the Code of Federal Regulations. Specifically, the current regulation says that “showing of interest” is “defined at 5 U.S.C. 2421.16,” but no such section exists. The reference should be to “5 CFR 2421.16,” so this correction is adopted in the revised paragraph (c).

Section 2422.4's heading is amended to clarify that, as a matter of agency procedure, the section applies to not only petitions, but also supporting documents. The wording of the section is amended to clarify certain information that a party should not serve on other parties in order to protect the identities of individuals engaged in specified protected activities. “Application for review” is removed from the list of documents covered by the section because applications for review are no longer necessary. A separate regulation—§ 2422.35(f)—addresses service requirements for applications for review in representation matters that arise when the Authority lacks a quorum.

Section 2422.5(c) is amended to clarify, as a matter of agency procedure, how an RD will determine when a petition is deemed filed based on whether the filing is electronic or by facsimile or other method, the time and date on which the filing is received, and whether a petition is received on a business day or during the region's business hours.

Section 2422.6(a) is amended to state explicitly that, although the RD makes reasonable efforts to identify or notify parties affected by the issues raised in a petition, parties have their own, independent notification and service obligations that they must satisfy. The regulations have never suggested that the RD's reasonable efforts relieve a party of its own notification and service obligations.

Section 2422.7(a) is amended to replace “Regional Director” with “FLRA” to account for the possibility that the Authority may direct the posting of notices.

Section 2422.9(b) replaces “Regional Director” in all the places it appears with “FLRA” to account for the Authority approving all investigations, and the Authority issuing all decisions and orders in such cases. The possibility of an appeal is deleted because appeals are no longer necessary. However, it remains true that a determination on the adequacy of a showing of interest is not subject to collateral or direct challenge to the RD or the Authority.

Section 2422.10(b) is amended to replace “Regional Director” with “FLRA” to account for the Authority potentially challenging the validity of a showing of interest.

Section 2422.10(e) replaces “Regional Director” in all the places it appears with “FLRA” to account for the Authority approving all investigations, and the Authority issuing all decisions and orders in such cases. The possibility of an appeal is deleted because appeals are no longer necessary. However, it remains true that a determination on the validity of a showing of interest is not subject to collateral or direct challenge to the RD or the Authority.

Section 2422.12's heading is amended to replace “Region” with “FLRA” to account for the possibility of the Authority making determinations regarding the timeliness of a petition.

The regulations have always contemplated that the general term “election” may cover a “decertification election,” where appropriate. Paragraphs (a), (b), (c), (d), (e), (g), and (h) are amended to reflect where, in the provisions governing the various bars to petitions seeking elections, “election” includes a “decertification election.” This matter was raised and settled in NASA, Goddard Space Flight Center, Wallops Island, Virginia, 67 FLRA 670, 676-77 (2014) ( Wallops Island ). See id. at 677 (referring to “the plain wording of § 2422.12(d)”). Although that decision concerned only the “contract bar,” the decision's rationale applies equally to other sections of § 2422.12 with the same “plain wording.” See U.S. Dep't of the Interior, Nat'l Park Serv., Blue Ridge Parkway, N.C., 73 FLRA 526, 530-31 (2023) ( Blue Ridge ) (applying Wallops Island to the “certification bar”). The FLRA wants to make explicit in these regulations when the term “election,” as a matter of plain wording, includes a “decertification election” so as to avoid confusion on this point. However, the clarification that “election” includes a “decertification election” does not preclude the Authority from making case-specific determinations in future representation matters about how other regulations that refer to elections apply to decertification elections.

Section 2422.12(b) is further amended to reflect Blue Ridge' s holding that “§ 2422.12(b) . . . applies—and has applied—to petitions filed within twelve months of a consolidation certification, regardless of whether the Authority conducted an election before issuing the certification.” Id. at 532 (emphasis added) (footnote omitted).

Section 2422.13(a) is amended to replace “a representative of the appropriate Regional Office” with “an FLRA representative” to account for the possibility that the Authority may participate in meetings before a representation petition is filed. The choice about which officers or employees will participate in any such meeting lies exclusively with the FLRA.

Section 2422.13(b) is amended to replace “Regional Director” with “FLRA” to account for the possibility of the Authority requiring parties to meet to narrow and resolve issues after a petition is filed.

Section 2422.14's heading is amended to replace “Regional Director” with “FLRA” to account for the Authority dismissing petitions.

Paragraphs (a)(1) and (b) are amended to clarify where “election” includes a “decertification election,” for substantially similar reasons as those discussed in connection with § 2422.12 above.

Elsewhere in § 2422.14, “FLRA” replaces “Regional Director” to account for the change in the internal decision-making structure in the new process for representation matters. However, “Regional Director” is purposely maintained where it first appears in § 2422.14(b) because the FLRA anticipates that parties will always submit withdrawal requests to an RD.

Paragraph (a)(1) is further amended to make clear that the reference to “another petition” plainly means “another petition from you”—that is, the same party that withdraws a timely filed petition, or whose timely filed petition the FLRA dismisses, within the meaning of § 2422.14(a)(1). This procedural clarification reflects that the rule is not intended to allow one party's withdrawn or dismissed petition to render another party's petition untimely within the meaning of § 2422.14(a)(1).

Paragraph (a)(1)(ii) is amended to remove the possibility of an appeal as a consequence of the revocation of the current delegation to the RDs in representation matters, and paragraph (a)(1)(iii) is deleted for the same reason.

Section 2422.15 is amended so that “FLRA” replaces “Regional Director” to account for the change in the internal decision-making structure in the new process for representation matters. However, “Regional Director” is purposely maintained where it appeared (before revisions) for the second time in § 2422.15(b) because the FLRA anticipates that parties will always submit alphabetized lists of employees to an RD.

Section 2422.16's heading, and paragraphs (b) and (c), replace “Regional Director” with “FLRA” because the Authority will now decide directions of elections and decide whether to conduct hearings. The Authority will also issue decisions and orders. When the Authority decides a hearing is warranted, the Authority will most often authorize regional office staff to conduct those hearings, although Authority staff may also conduct hearings.

In § 2422.17, paragraphs (a) and (b) are amended so that “FLRA” replaces “Regional Director” to account for the change in the internal decision-making structure in the new process for representation matters.

Paragraph (d) is deleted because it refers to appeals, which are no longer necessary.

Section 2422.18(c) is amended so that the “FLRA assigns a Hearing Officer,” rather than the “Regional Director appoints a Hearing Officer,” to account for the change in the internal decision-making structure in the new process for representation matters. In § 2422.18(d), the phrase “working hours” is changed to its equivalent term, “business hours,” to be consistent with other uses of “business hours” in this part of the regulations.

Section 2422.19 is amended so that “FLRA” replaces “Regional Director” to account for the change in the internal decision-making structure in the new process for representation matters.

In § 2422.19(a), the sentence “The Regional Director or Hearing Officer may treat challenges and other filings referenced in other sections of this subpart as a motion” is deleted because regulatory authorization is not procedurally required to treat challenges or other filings as motions, and the provision already places full discretion for this determination with the FLRA. This deletion should not change the way hearings are conducted.

In § 2422.19(b), the sentence “The Regional Director may rule on the motion or refer the motion to the Hearing Officer” is deleted because the process for deciding motions or referring them to a Hearing Officer need not be specified in regulation, and the provision already places full discretion for this determination with the FLRA. This deletion should not change the way hearings are conducted.

In § 2422.19(c), the sentence “When appropriate, the Hearing Officer will rule on motions made at the hearing or referred to the Hearing Officer by the Regional Director” is deleted because this matter need not be specified in regulation, and the provision already places full discretion for this determination with the FLRA. This deletion should not change the way hearings are conducted.

Section 2422.20(d) is amended so that “FLRA” replaces “Regional Director” to account for the change in the internal decision-making structure in the new process for representation matters. Section 2422.20(d) is further amended so that parties will now be provided the opportunity to file reply briefs as a matter of course, without requesting permission first. Parties will have ten days from another party's filing of an initial brief to file a reply brief. In each case, parties will be notified whether to file their briefs with the Hearing Officer, the RD, or the Authority. The requirement to file multiple copies of briefs is eliminated.

Section 2422.21(a) is amended to delete the sentence “The Hearing Officer may make recommendations on the record to the Regional Director.” This matter need not be specified in regulation, as the determination is committed fully to the FLRA's discretion.

Section 2422.21(b) is amended so that “FLRA” replaces “Regional Director” to account for the change in the internal decision-making structure in the new process for representation matters.

In § 2422.23, paragraph (a); paragraph (b); paragraph (c); paragraph (e)'s last sentence; paragraph (f)'s last sentence; paragraph (g)'s last sentence; and paragraph (h)(5) are amended so that “FLRA” replaces “Regional Director” to account for the change in the internal decision-making structure in the new process for representation matters. However, “Regional Director” is purposely maintained in the following paragraphs for the following reasons: the first two places it appears in § 2422.23(e) because parties are still expected to file withdrawal requests with an RD; the first sentence of § 2422.23(f) because parties are still expected to file disclaimers of interest with an RD; the first sentence of § 2422.23(g) because parties are still expected to file withdrawal requests with an RD; those paragraphs of § 2422.23(h) where it appears (except for (h)(5)) because the FLRA intends for RDs to handle most matters concerning election observers in order to prevent delays to elections. However, “FLRA” has replaced “Regional Director” in § 2422.23(h)(5) because the Authority will decide any formal objections that are filed in accordance with § 2422.23(h)(4). Section 2422.23(h)(5) is further amended to remove the reference to an application for review because appeals are no longer necessary.

Section 2422.24 is amended so that “FLRA” replaces “Regional Director” and “Region” because the Authority may challenge voter eligibility, for good cause, under § 2422.24(a); and because the Authority may be involved in addressing challenged ballots under § 2422.24(b). The Authority will always be involved in addressing determinative challenged ballots.

Section 2422.25's heading, and paragraphs (a) and (b), are amended so that “FLRA” replaces “Regional Director” and “Region” because the Authority may tally ballots or serve the tally of ballots in some elections.

In § 2422.26, paragraphs (a) and (b) maintain the use of “Regional Director” rather than “FLRA” because the FLRA intends for parties to continue filing election objections and supporting evidence with the regional offices.

Paragraph (a) is amended to eliminate the requirement for filing duplicate copies of objections.

Section 2422.27's heading, and paragraphs (a) and (c), replace “Regional Director” and “Region” with “FLRA” to account for the Authority approving all investigations, and taking appropriate action on determinative challenged ballots and objections.

Paragraph (d), concerning consolidated hearings, is deleted. As discussed in greater detail earlier, the FLRA is reexamining the manner in which it adjudicates unfair labor practices (ULPs), and this paragraph concerns hearings about both determinative challenged ballots and ULPs. Whether to provide this type of hearing is committed fully to the FLRA's discretion. If necessary, the FLRA will revisit this topic in future rulemaking, once the reexamination of ULP adjudication is complete. Paragraph (e) is deleted for similar reasons because it concerns filing exceptions to a recommended decision that resolves ULP allegations.

Section 2422.28(a) replaces “Regional Director” with “FLRA” to account for the Authority ruling on all objections to elections and determinative challenged ballots.

Section 2422.29's heading—and paragraphs (a)(4), (b), (c), and (d)—replace “Regional Director” and “Region” with “FLRA” to account for the Authority's involvement in elections and the certification of results.

Section 2422.30's heading—and paragraphs (a), (b), and (c)—replace “Regional Director” with “FLRA” because the Authority will approve all investigations and hearings, as well as direct all elections, approve all election agreements, and issue all decisions and orders, in furtherance of its responsibilities under § 7105(a)(2) of the Statute.

Paragraphs (d) and (e) are deleted because they concern appeals, which are no longer necessary. The substance of paragraphs (d) and (e) is being transferred to the new § 2422.35, which will address how the new delegation of authority for representation proceedings applies when the Authority lacks a quorum. The specifics of those transferred provisions will be discussed in the analysis of § 2422.35 below.

Section 2422.31 is currently titled “When do you file an application for review of a Regional Director Decision and Order?” Because applications for review are no longer necessary, the heading and text of this section are being deleted, and the section is reserved. However, the substance of many of this section's provisions are being transferred to the new § 2422.35, which will address how the new delegation of authority for representation proceedings applies when the Authority lacks a quorum. The specifics of those transferred provisions will be discussed in the analysis of § 2422.35 below.

Section 2422.32's heading, and paragraphs (a) and (b), replace “Regional Director” and “Region” with “FLRA” because the Authority will be taking appropriate action on all certifications, addressing election objections and determinative challenged ballots, issuing decisions and orders, and revoking recognitions or certifications.

Paragraph (a)(2) is further amended to delete certain wording because RDs will no longer be issuing decisions and orders that may “become the action of the Authority.”

Paragraph (b)(2) is further amended to make explicit that the FLRA will not revoke a recognition or certification due to a substantial change in the character and scope of a unit that renders the unit no longer appropriate, unless a party first files a petition that gives rise to a representation proceeding concerning that unit. This amendment merely codifies existing procedural practice in the regulation.

Section 2422.33 is amended to remove the reference to consolidated hearings, for the same reasons stated earlier in connection with § 2422.27(d).

Section 2422.34 is amended to clarify its operation and reformat certain citations.

The existing wording of § 2422.34(a) is amended, and redesignated as § 2422.34(a)(1), to make explicit that the reference to the period “when a representation proceeding is pending” means when such a proceeding is pending “before the FLRA.” This amendment makes explicit that the section does not apply when a representation matter has been appealed to court, or raised in any other forum over which the FLRA lacks jurisdiction. Further, the newly designated § 2422.34(a)(1) is amended so that it is subject to the clarification that appears in newly created § 2422.34(a)(2).

Section 2422.34(a)(2) makes explicit that the principles set forth in 5 CFR 2429.17—concerning motions for reconsideration—apply to the operation of § 2422.34. Thus, the filing of a motion for reconsideration or stay does not relieve the parties of their obligations to comply with a final decision or order of the Authority, unless so ordered by the Authority. For example, § 2422.34 does not require parties to maintain existing recognitions, follow the terms and conditions of existing collective-bargaining agreements, or fulfill other representational and bargaining responsibilities, when a final decision or order of the Authority permits or directs the parties to do otherwise—even when a party files a motion for reconsideration or stay of that final decision or order. In addition, this amendment makes explicit that, if a final decision or order of the Authority issues, or directs the issuance of, a certification, then the parties are required to act consistent with that certification, even if a party filed a motion for reconsideration or stay of the final decision or order.

Section 2422.34(b) is amended to change citation formatting. The statutory cites in § 2422.34(b) are being rewritten as “3 U.S.C. 431(d)(2), and 5 U.S.C. 7103(a)(2), 7112(b), and 7112(c).” However, these are the same cites that appeared before, in a different format.

This newly created section addresses how the FLRA's new delegation of authority for processing representation matters will apply in proceedings that arise when the Authority lacks a quorum. The Authority lacks a quorum when it has one or zero Members. See 5 U.S.C. 7104(a) (“The Federal Labor Relations Authority is composed of three members . . . .”), (d) (“A vacancy in the Authority shall not impair the right of the remaining members to exercise all of the powers of the Authority.”). The FLRA has determined that, in order to avoid delay in the processing of representation matters when the Authority lacks a quorum, under such special and temporary circumstances, RDs are delegated the power and responsibility to process representation matters under 5 U.S.C. 7105(e)(1). But parties involved in representation matters that arise when the Authority lacks a quorum will have the right to file an appeal of an RD's action under 5 U.S.C. 7105(f). That appeal can be addressed only when an Authority quorum is restored, however. Almost all of the provisions of this section closely resemble the regulations that govern the current two-layered structure of RD initial decisions and potential Authority review.

Section 2422.35(a) explains that the section applies to representation matters that arise when the Authority lacks a quorum, and it explains that the Authority lacks a quorum when it has one or zero Members. Further, paragraph (a) explains that the section is intended to operate in a manner consistent with the newly adopted section I.C. of Appendix B to 5 CFR Chapter IV. That appendix is titled, “Memorandum Describing the Authority and Assigned Responsibilities of the General Counsel of the Federal Labor Relations Authority,” and newly adopted section I.C. concerns case handling in representation matters that arise when the Authority lacks a quorum.

Section 2422.35(b) replaces § 2422.14(a) in representation matters that arise when the Authority lacks a quorum. Note that § 2422.14(b) and (c) will still apply to representation matters that arise when the Authority lacks a quorum.

Section 2422.35(b)(2) explains the circumstances under which the withdrawal or dismissal of a petition less than sixty days before a contract expiration will render a later filed petition untimely, and paragraphs (b)(2)(i) through (b)(2)(iv) provide the four possible actions that could trigger the running of the ninety-day period of untimeliness discussed in (b)(2). Unlike the actions described in § 2422.14(a)(1), those set forth in § 2422.35(b)(2) account for the possibility of appeals because appeals will be available for representation matters that arise when the Authority lacks a quorum. Thus, the circumstances described in § 2422.35(b)(2) are similar to those described in § 2422.14(a)(1)'s procedural rule, but the circumstances in § 2422.35(b)(2) are adapted to a no-quorum situation.

Section 2422.35(c) is intended to have the same effect as current § 2422.17(d)—which is being deleted.

Section 2422.35(d) is intended to have the same effect as current § 2422.30(d)—which is being deleted.

Section 2422.35(e) is intended to have the same effect as current § 2422.30(e)—which is being deleted. But the FLRA has determined, as a matter of procedure, that the first sentence—providing that “all material submitted to, and considered by, the Regional Director during an investigation becomes part of the record”—will not be limited to cases “when there has not been a hearing,” as it was limited in current § 2422.30(e). The introductory description has been changed from “Contents of the Record” to “Contents of the record for appeal” for clarity.

Section 2422.35(f) is intended to have the same effect as current § 2422.31(a)—which is being deleted.

Section 2422.35(g) is intended to have the same effect as current § 2422.31(b)—which is being deleted. However, the introductory description has been changed from “Contents” to “Contents of the Application for Review” for clarity. Note that, just as current § 2422.31(b) does, § 2422.35(g) will prohibit an application from “rais[ing] any issue or rely[ing] on any facts not timely presented to the Hearing Officer or Regional Director.”

Section 2422.35(h) is intended to have the same effect as current § 2422.31(c)—which is being deleted.

With one exception, § 2422.35(i) (concerning oppositions to applications to review) is intended to have the same effect as current § 2422.31(d)—which is being deleted. The exception is that the FLRA is adding a new procedural prohibition to § 2422.35(i) that does not appear in current § 2422.31(d). Under § 2422.35(i), an opposition “may not raise any issue or rely on any facts not timely presented to the Hearing Officer or Regional Director.” This prohibition is intended to mirror a restriction that applies to applications for review. The effect of this prohibition is currently achieved through the application of 5 CFR 2429.5 to oppositions, but as will be discussed later in connection with that section, the FLRA is revising § 2429.5 so that it will no longer apply to matters not previously presented to a Hearing Officer or Regional Director. Thus, as applied to oppositions, the FLRA is relocating this prohibition from § 2429.5 to § 2422.35(i).

Section 2422.35(j) is intended to have the same effect as current § 2422.31(e)—which is being deleted—but two clarifications are provided. In the first clarification, § 2422.35(j)(2), which is modeled after current § 2422.31(e)(2), states that the sixty-day period during which the Authority must undertake to grant review of an RD's decision and order—in order to prevent the RD's action from becoming the action of the Authority by operation of law—runs only while the Authority has a quorum. See FDIC, 68 FLRA at 262 (finding that the Authority has sixty days while having a quorum to “undertake to grant review of [an] RD's decision,” or else “the RD's decision bec[o]me[s] `the action of the Authority'” (quoting 5 U.S.C. 7105(f))). In the second clarification, § 2422.35(j)(3), which is modeled after current § 2422.31(e)(3), explains that when an application for review is filed while the Authority lacks a quorum, the Authority cannot resolve the application for review until it has a quorum.

Section 2422.35(k) is intended to have the same effect as current § 2422.31(f)—which is being deleted—but one clarification is adopted. For clarity, whereas § 2422.31(f)'s second sentence says, “Neither filing nor granting an application for review will stay any action ordered by the Regional Director unless specifically ordered by the Authority,” § 2422.35(k)'s second sentence says, “Neither a party filing, nor the Authority granting, an application for review will stay any action ordered by the Regional Director unless specifically ordered by the Authority.”

Section 2422.35(l) is intended to have the same effect as current § 2422.31(g)—which is being deleted—but one additional procedural requirement is mentioned. The procedural requirement is that a party filing a brief under § 2422.35(l) “must serve a copy on the Regional Director and all other parties, and must also file a statement of service with the Authority.” The same procedural requirement is mentioned in § 2422.35(f) concerning filing an application for review, and in § 2422.35(i) concerning filing an opposition.

Section 2422.35(m) explains that the provisions governing the service and processing of papers in § 2429.12(a), (b), and (c) will apply to RDs' decisions and orders in representation matters that arise when the Authority lacks a quorum. As will be discussed later in connection with § 2429.12, the FLRA is revising that section so that it will no longer explicitly refer to RDs' decisions and orders. However, through the operation of § 2422.35(m), § 2429.12(a), (b), and (c) will apply to RDs' decisions and orders in representation matters that arise when the Authority lacks a quorum.

Section 2422.35(n) replaces § 2422.32(a) in representation matters that arise when the Authority lacks a quorum. Note that § 2422.32(b) will still apply to representation matters that arise when the Authority lacks a quorum.

Section 2422.35(n)(1) is intended to have the same effect as current § 2422.32(a)(1). Within § 2422.35, paragraphs (n)(2) and (3) are intended to have the same effect as similar wording in current § 2422.32(a)(2), except that current § 2422.32(a)(2)'s reference to 5 CFR 2422.31(e) is replaced with a reference to new section § 2422.35(j). Because current § 2422.32(a)(2) describes two different circumstances, those circumstances were divided into two new paragraphs: § 2422.35(n)(2) and (3).

Section 2426.2(b) currently says that consultation-rights issues will be referred “to the Authority” for determination. The phrase “to the Authority” is deleted because, in instances where the Authority lacks a quorum, this determination will be made in the first instance by an RD, just as occurs under the current process. However, in instances where the Authority has a quorum, the Authority will make this determination under the new process.

Section 2426.2(b)(2) changes “Authority” to “FLRA” to conform to the new definition of “FLRA” added in § 2421.23.

Paragraphs (b)(2)(i), (b)(2)(iv), and (b)(2)(v) are updated to require the petitioner to provide email addresses.

Section 2426.2(b)(3)(ii) is amended to eliminate the need to file multiple copies.

Section 2426.2(b)(3)(vii) changes “Regional Director” to “FLRA” to account for the Authority approving all investigations, issuing all decisions and orders, and determining whether hearings are warranted. The paragraph is further amended to delete the reference to appeals because appeals are no longer necessary. The final sentence of (b)(3)(vii) is further amended to correct the citations to other regulations in the subchapter because those citations have been incorrect since revised representation regulations took effect in 1996.

Section 2426.12(b) currently says that consultation-rights issues will be referred “to the Authority” for determination. The phrase “to the Authority” is deleted because, in instances when the Authority lacks a quorum, this determination will be made in the first instance by an RD, just as occurs under the current process. However, in instances where the Authority has a quorum, the Authority will make this determination under the new process.

Section 2426.12(b)(2) changes “Authority” to “FLRA” to conform to the new definition of “FLRA” added in § 2421.23.

Paragraphs (b)(2)(i), (b)(2)(iv), and (b)(2)(v) are updated to require the petitioner to provide email addresses.

Section 2426.12(b)(3)(ii) is amended to eliminate the need for multiple copies.

Section 2426.12(b)(3)(vii) changes “Regional Director” to “FLRA” to account for the Authority approving all investigations, issuing all decisions and orders, and determining whether hearings are warranted. The paragraph is further amended to delete the reference to appeals because appeals are no longer necessary. The final sentence of (b)(3)(vii) is further amended to correct the citations to other regulations in the subchapter because those citations have been incorrect since revised representation regulations took effect in 1996.

This newly created section, within a newly created subpart, addresses how the FLRA's new delegation of authority for processing representation matters will apply in proceedings that arise when the Authority lacks a quorum, but this section is specific to consultation-rights cases. The Authority lacks a quorum when it has one or zero Members. The FLRA has determined that, in order to avoid delay in the processing of representation matters when the Authority lacks a quorum, under such special and temporary circumstances, RDs are delegated the power and responsibility to process representation matters under 5 U.S.C. 7105(e)(1). But parties involved in representation matters that arise when the Authority lacks a quorum will have the right to file an appeal of an RD's action under 5 U.S.C. 7105(f). That appeal can be addressed only when an Authority quorum is restored, however. Almost all of the provisions of this section closely resemble the regulations that govern the current two-layered structure of RD initial decisions and potential Authority review.

Section 2426.21(a) explains that the section applies to representation matters that arise when the Authority lacks a quorum, and it explains that the Authority lacks a quorum when it has one or zero Members. Further, paragraph (a) explains that the section is intended to operate in a manner consistent with the newly adopted section I.C. of Appendix B to 5 CFR Chapter IV. That appendix is titled, “Memorandum Describing the Authority and Assigned Responsibilities of the General Counsel of the Federal Labor Relations Authority,” and newly adopted section I.C. concerns case handling in representation matters that arise when the Authority lacks a quorum.

Section 2426.21(b) replaces current § 2426.2(b)(3)(vii) in representation matters that arise when the Authority lacks a quorum. Note that the remaining paragraphs of § 2426.2(b), as well as § 2426.2(a), will still apply to representation matters that arise when the Authority lacks a quorum.

Further, § 2426.21(b) is intended to have the same effect as current § 2426.2(b)(3)(vii) (before the revisions discussed in this document). However, § 2426.21(b) changes citations to other regulations in the subchapter because the relevant provisions are being relocated as part of this interim final rule, or because the citations currently in § 2426.2(b)(3)(vii) have been incorrect since revised representation regulations took effect in 1996.

Section 2426.21(c) is intended to have the same effect as current § 2426.12(b)(3)(vii) (before the revisions discussed in this document). However, § 2426.21(c) changes citations to other regulations in the subchapter because the relevant provisions are being relocated as part of this interim final rule, or because the citations currently in § 2426.12(b)(3)(vii) have been incorrect since revised representation regulations took effect in 1996.

Section 2429.2 replaces “Regional Director” with “the FLRA” to allow for the possibility that the Authority will be consolidating or transferring cases.

Section 2429.5 is amended so that it no longer applies to matters not previously presented to a “Regional Director” or “Hearing Officer.” This general regulation is not needed to enforce its prohibitions in representation matters because the same prohibitions have been incorporated into the more-specific regulations that govern applications for review and oppositions (in representation matters that arise when the Authority lacks a quorum)—new § 2422.35(g) and (i), respectively.

Within § 2429.7, paragraphs (c) and (e)(1) are amended to make explicit that those procedural provisions concerning subpoenas in representation matters arising under part 2422 also apply to representation matters arising under part 2426.

Section 2429.12(a) is amended to remove a reference to “decisions and orders of Regional Directors” because the Authority will issue decisions and orders. However, as discussed earlier in connection with new § 2422.35(m), § 2422.35(m) makes § 2429.12(a), (b), and (c) applicable to RDs' decisions and orders in representation matters that arise when the Authority lacks a quorum.

Section 2429.22(c) is amended to change the citation in “applications for review filed under 5 CFR 2422.31” so that the citation now refers to “applications for review filed under 5 CFR 2422.35.” New § 2422.35 will contain the provisions governing applications for review in representation matters that arise when the Authority lacks a quorum.

Within § 2429.24, paragraphs (f)(1) and (2) are amended so that their citations refer to the correct paragraphs after the changes in this document take effect.

Paragraphs (f)(7) and (9) change “Agency statement” and “Agency replies” to “Agencies' statements” and “Agencies' replies” for grammatical correctness.

The FLRA finds that this interim final rule is not a substantive rule. Chrysler Corp. v. Brown, 441 U.S. 281, 301-02 (1979) (citing 5 U.S.C. 553(b), (d)) (stating that a substantive or legislative rule is one that “affect[s] individual rights or obligations” (quoting Morton v. Ruiz, 415 U.S. 199, 232 (1974) (internal quotations marks omitted)). The FLRA finds that the revisions in this interim final rule are excepted from 5 U.S.C. 553's requirements for notice and comment as “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice,” 5 U.S.C. 553(b)(A), or because “good cause” applies, id. 553(b)(B). The revisions necessary to reflect a changed delegation of authority to perform defined duties within the FLRA are rules of “agency organization.” Id. 553(b)(A). Similarly, the revisions that alter the manner in which parties present their positions to the FLRA are rules of “agency . . . procedure.” Id. Further, § 553 provides an exception from notice and comment if an agency finds good cause that notice and comment are “unnecessary.” Id. 553(b)(B). The FLRA has determined that certain revisions are merely minor or technical changes, and “good cause” for an exception under § 553(b)(B) exists. Such revisions primarily correct inadvertent errors and omissions, and make minor wording changes to improve clarity and consistency. These technical revisions do not impose any new material requirements or increase compliance obligations.

Nevertheless, the FLRA will accept comments on this interim final rule.

Pursuant to E.O. 12,866 (“Regulatory Planning and Review”), as amended by E.O. 14,215, a determination must be made whether a regulatory action is significant and therefore subject to review by the Office of Management and Budget (OMB) in accordance with the requirements of the Executive Order.

E.O. 13,563 (“Improving Regulation and Regulatory Review”) supplements and reaffirms the principles, structures, and definitions governing contemporary regulatory review established in E.O. 12,866.

This interim final rule was drafted and reviewed in accordance with E.O. 12,866 and E.O. 13,563. OMB has determined that this interim final rule is not a “significant regulatory action” as defined in section 3(f)(1) of E.O. 12,866. This interim final rule will reduce the burden on parties to brief issues twice before obtaining a decision from the Authority and reduce prior limitations on parties seeking review. Moreover, the majority of this interim final rule deals with “agency organization, management, or personnel matters” and, therefore, E.O. 12,866 would not apply.

E.O. 14,192 (“Unleashing Prosperity Through Deregulation”) requires that any new incremental costs associated with new regulations shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least 10 prior regulations. This interim final rule is expected to be a deregulatory action for purposes of E.O. 14,192. This interim final rule is also not significant under E.O. 12,866.

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 interim final rule will not have a significant impact on a substantial number of small entities, because this interim final rule applies only to federal agencies, federal employees, and labor organizations representing those employees.

The FLRA is an independent regulatory agency, and as such, is not subject to the requirements of E.O. 13,132.

This interim final rule will not have substantial direct effects on the states, on the relationship between the national government and the states, or on distribution of power and responsibilities among the various levels of government. Therefore, in accordance with E.O. 13,132, this interim final rule does not have sufficient federalism implications to warrant preparation of a federalism assessment.

This interim final rule meets the applicable standard set forth in section 3(a) and (b)(2) of Executive Order 12,988.

This interim final rule does not have tribal implications under E.O. 13,175, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the federal government and Indian tribes, or on the distribution of power and responsibilities between the federal government and Indian tribes.

E.O. 14,294 requires agencies promulgating regulations with criminal regulatory offenses potentially subject to criminal enforcement to explicitly describe the conduct subject to criminal enforcement, the authorizing statutes, and the mens rea standard applicable to each element of those offenses. This interim final rule does not impose a criminal regulatory penalty and is thus exempt from E.O. 14,924's requirements.

This interim 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.

This action is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This interim 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.

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.

For the reasons stated in the preamble, the Federal Labor Relations Authority amends 5 CFR parts 2421, 2422, 2426, and 2429 as follows:

I support exploring revisions to the Federal Labor Relations Authority's (FLRA's) representation regulations, largely along the lines of those in today's rule (with exceptions noted below). However, I do not agree that we should make revisions using interim final rulemaking. Today's revisions reflect the biggest changes to the FLRA's representation case processing in nearly 43 years. I believe that our stakeholders deserve an opportunity to review and comment on proposed regulations, and that we should consider such comments, before we make such sweeping operational changes.

Using interim final rulemaking effectively tells our stakeholders that, although we welcome their comments, we will not necessarily consider them. In my view, this risks generating potentially undue skepticism among our stakeholders, and raising the likelihood of challenges. It also may weaken the end product. Comments on proposed regulations often improve those regulations, including by raising issues that the drafters have not considered. Absent a need for nearly immediate implementation—which is not present here—I believe we should engage in notice-and-comment rulemaking. I note, in this regard, that the draft notice does not contain a detailed description of how representation cases will be processed internally at the FLRA under the new regulations—undoubtedly because we are still in the process of making those determinations. That is another reason not to rush the process.

As for the contents of the rule, in the context of cases that arise when the Authority lacks a quorum (“no-quorum” cases), I am not inclined to continue the current practice of prohibiting parties from raising issues that they did not raise before Regional Directors or Hearing Officers. The revised regulations—correctly, in my view—do not contain such a prohibition in representation cases that are processed when the Authority has a quorum. It thus seems incongruous to me to have such a prohibition in “no-quorum” cases. Therefore, I disagree with the pertinent wording in sections 2422.35(g) (concerning applications for review) and 2422.35(i) (concerning oppositions to such applications).

For the above reasons, I dissent from the majority's action today.

The Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. 7101-7135, grants Members of the Authority the power and responsibility to “determine the appropriateness of units,” id. 7105(a)(2)(A); “supervise or conduct elections” and “otherwise administer the provisions . . . [of the Statute] relating to the according of exclusive recognition,” id. 7105(a)(2)(B); “prescribe criteria and resolve issues relating to the granting of national consultation rights,” id. 7105(a)(2)(C); “prescribe criteria relating to the granting of consultation rights with respect to conditions of employment,” id. 7105(a)(2)(F); and “take such other actions as are necessary and appropriate to effectively administer [the Statute],” id. 7105(a)(2)(I). From 1979 until 1983, the Authority Members exercised those powers directly. But since 1983, the Authority has delegated to Regional Directors (RDs) its power and responsibility to determine whether a group of employees is an appropriate bargaining unit, to conduct investigations and to provide for hearings in representation matters, to determine whether a question of representation exists and to direct an election, and to supervise or conduct secret ballot elections and certify the results thereof. See 5 U.S.C. 7105(e)(1); Amendment to Memo. Describing the Authority & Assigned Responsibilities of the General Counsel of the FLRA, 48 FR 28814 (June 23, 1983) (amending memorandum so as to delegate authority and responsibility to RDs in representation cases); Processing of Cases; General Requirements, 48 FR 40189 (Sept. 6, 1983) (revising regulations to implement the amendment to the memorandum). The Authority also established a process to review the actions of RDs in those areas of delegated responsibility. See 5 U.S.C. 7105(f); Processing of Cases; General Requirements, 48 FR at 40190-95 (establishing § 7105(f) appeals process).

The delegation of authority to the RDs appears in section I.C. of a memorandum published as Appendix B to 5 CFR Chapter XIV.

For the reasons further explained in the interim final rule amending the FLRA's regulations—which is also published elsewhere in this issue of the Federal Register —the FLRA finds that the memorandum of delegated authorities and responsibilities to the RDs merits revision.

Accordingly, the FLRA, pursuant to a vote by the Members of the Authority, revokes and deletes the text of section I.C. of Appendix B to 5 CFR Chapter XIV—entitled “Representation cases.” Further, the FLRA adopts a new section I.C. of Appendix B to 5 CFR Chapter XIV that delegates authority and responsibility to RDs only in representation matters that arise when the Authority lacks a quorum. The text of the new section I.C. is set forth later in this notice.

The new section I.C. will be effective on the effective date of the interim final rule—published elsewhere in this issue of the Federal Register —amending parts 2421, 2422, 2426, and 2429 of the FLRA's regulations.

Further, the FLRA is reformatting the title of section III of Appendix B to 5 CFR Chapter XIV—“Personnel.” This reformatting is intended to render the title text bold and italicized so that it mirrors the formatting of all other section titles in the Appendix. Two terms in section III are also updated to reflect the FLRA's current structure. Specifically, the term “field offices” is changed to “Regional Offices,” and “Office of Administration” is changed to “Office of the Executive Director.” No substantive changes are intended for this section.

Pursuant to E.O. 12866 (“Regulatory Planning and Review”), as amended by E.O. 14215, a determination must be made whether a regulatory action is significant and therefore subject to review by the Office of Management and Budget (OMB) in accordance with the requirements of the Executive Order. E.O. 13563 (“Improving Regulation and Regulatory Review”) supplements and reaffirms the principles, structures, and definitions governing contemporary regulatory review established in E.O. 12866.

This amendment of an internal delegation deals with “agency organization, management, or personnel matters,” and, therefore, E.O. 12866 does not apply. E.O. 14192 (“Unleashing Prosperity Through Deregulation”) requires that any new incremental costs associated with new regulations shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least 10 prior regulations. This amendment of an internal delegation is expected to be a deregulatory action for purposes of E.O. 14192. This amendment of an internal delegation is also not significant under E.O. 12866.

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 amendment of an internal delegation will not have a significant impact on a substantial number of small entities, because this rule applies only to federal agencies, federal employees, and labor organizations representing those employees.

The FLRA is an independent regulatory agency, and as such, is not subject to the requirements of E.O. 13132.

This amendment of an internal delegation will not have substantial direct effects on the States, on the relationship between the national government and the states, or on distribution of power and responsibilities among the various levels of government. Therefore, in accordance with E.O. 13132, this amendment of an internal delegation does not have sufficient federalism implications to warrant preparation of a federalism assessment.

This amendment of an internal delegation meets the applicable standard set forth in section 3(a) and (b)(2) of E.O. 12988.

This amendment of an internal delegation does not have tribal implications under E.O. 13175 because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the federal government and Indian tribes, or on the distribution of power and responsibilities between the federal government and Indian tribes.

E.O. 14294 requires agencies promulgating regulations with criminal regulatory offenses potentially subject to criminal enforcement to explicitly describe the conduct subject to criminal enforcement, the authorizing statutes, and the mens rea standard applicable to each element of those offenses. This amendment of an internal delegation does not impose a criminal regulatory penalty and is, thus, exempt from E.O. 14924's requirements.

This amendment of an internal delegation 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.

This action is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This amendment of an internal delegation 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.

The amended internal delegation contains no additional information collection or record-keeping requirements under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501, et seq.

For the reasons stated in the preamble, the Federal Labor Relations Authority amends appendix B to 5 CFR chapter XIV as follows:

As discussed in my dissent to today's interim final rule completely overhauling the Federal Labor Relations Authority's (FLRA's) representation regulations, I would give the FLRA's stakeholders an opportunity to comment before we modify those regulations. Consequently, I would not revise the existing delegation to the FLRA's Regional Directors in representation matters until we have received and reviewed comments on the regulations. Accordingly, I dissent from today's amendment to Appendix B to 5 CFR Chapter XIV.

In the Federal Register of February 6, 2026 (91 FR 5291), FDA issued a final order, Listing of Color Additives Exempt from Certification; Spirulina Extract, to provide for the expanded safe use of spirulina ( Arthrospira platensis ) extract as a color additive in human foods generally (except for infant formula, certain foods subject to regulation by the USDA, and foods for which standards of identity have been issued under section 401 of the FD&C Act, unless the use of the added color is authorized by such standards) at levels consistent with good manufacturing practice (GMP); to lower the heavy metal specifications for lead, arsenic, and mercury; and to add a specification for cadmium. Specifically, the final order amended § 73.530, titled “Spirulina extract,” (21 CFR 73.530). We issued the final order in response to a color additive petition submitted by GNT USA, LLC. We gave interested persons until March 9, 2026, to file objections and requests for a hearing on the final order.

Obelisk Tech Systems Inc. submitted objections and a request for a hearing. See Submission from Obelisk Tech Systems Inc., to the Dockets Management Staff, Food and Drug Administration, submitted March 7, 2026. In addition to the objections and request for a hearing submitted by Obelisk Tech Systems Inc, we received another comment that opposed the final order, but does not appear to be an objection under 21 CFR 12.22 nor does it request a hearing. We plan to address the objections and request for a hearing in a future document.

Under sections 701(e)(2) and 721(d) of the FD&C Act (21 U.S.C. 371(e)(2) and 379e(d)), within 30 days after publication of an order relating to a color additive regulation, any person adversely affected by such an order may file objections, specifying with particularity the provisions of the order deemed objectionable, stating the grounds therefor, and requesting a public hearing upon such objections. The filing of the objections operates to delay the effective date of the final order until we take final action on the objections. 1 Our announcement of the delay of the effective date of the final order does not reflect a change in our determination that there is a reasonable certainty of no harm from the use of this color additive under the proposed conditions of its intended use. In addition, this notification does not constitute a determination that all of the issues raised in the submission constitute objections or that a hearing is justified on any objections or requests for hearing that have been filed.

For access to the docket to read the objections received, go to https://www.regulations.gov and insert the docket number FDA-2024-C-3384 into the “Search” box and follow the prompts and/or go to the Dockets Management Staff, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

Section 105(e) of the Federal Alcohol Administration Act (FAA Act), 27 U.S.C. 205(e), authorizes the Secretary of the Treasury to prescribe regulations for the labeling of wine, distilled spirits, and malt beverages. The FAA Act provides that these regulations should, among other things, prohibit consumer deception and the use of misleading statements on labels and ensure that labels provide the consumer with adequate information as to the identity and quality of the product. The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers the FAA Act pursuant to section 1111(d) of the Homeland Security Act of 2002, codified at 6 U.S.C. 531(d). In addition, the Secretary of the Treasury has delegated certain administrative and enforcement authorities to TTB through Treasury Order 120-01.

Part 4 of the TTB regulations (27 CFR part 4) authorizes TTB to establish definitive viticultural areas and regulate the use of their names as appellations of origin on wine labels and in wine advertisements. Part 9 of the TTB regulations (27 CFR part 9) sets forth standards for the preparation and submission of petitions for the establishment or modification of American viticultural areas (AVAs) and lists the approved AVAs.

Section 4.25(e)(1)(i) of the TTB regulations (27 CFR 4.25(e)(1)(i)) defines a viticultural area for American wine as a delimited grape-growing region having distinguishing features as described in part 9 of the regulations and, once approved, a name and a delineated boundary codified in part 9 of the regulations. These designations allow vintners and consumers to attribute a given quality, reputation, or other characteristic of a wine made from grapes grown in an area to the wine's geographic origin. The establishment of AVAs allows vintners to describe more accurately the origin of their wines to consumers and helps consumers to identify wines they may purchase. Establishment of an AVA is neither an approval nor an endorsement by TTB of the wine produced in that area.

Section 4.25(e)(2) of the TTB regulations (27 CFR 4.25(e)(2)) outlines the procedure for proposing an AVA and allows any interested party to petition TTB to establish a grape-growing region as an AVA. Section 9.12 of the TTB regulations (27 CFR 9.12) prescribes standards for petitions to establish or modify AVAs. Petitions to establish an AVA must include the following:

• Evidence that the area within the proposed AVA boundary is nationally or locally known by the AVA name specified in the petition;

• An explanation of the basis for defining the boundary of the proposed AVA;

• A narrative description of the features of the proposed AVA affecting viticulture, such as climate, geology, soils, physical features, and elevation, that make the proposed AVA distinctive and distinguish it from adjacent areas outside the proposed AVA;

• If the proposed AVA is to be established within, or overlapping, an existing AVA, an explanation that both identifies the attributes of the proposed AVA that are consistent with the existing AVA and explains how the proposed AVA is sufficiently distinct from the existing AVA and therefore appropriate for separate recognition;

• The appropriate United States Geological Survey (USGS) map(s) showing the location of the proposed AVA, with the boundary of the proposed AVA clearly drawn thereon; and

• A detailed narrative description of the proposed AVA boundary based on USGS map markings.

TTB received a petition from the Justin Pelletier, Chief Operating Officer and Quality Control Manager of Nashoba Valley Winery, proposing the establishment of the “Nashoba Valley” AVA in Worcester County, Massachusetts. The proposed Nashoba Valley AVA covers approximately 18,367 acres and is not located within any other AVA. There are three commercial vineyards covering a total of approximately 16 acres within the proposed AVA.

According to the petition, the distinguishing features of the proposed AVA include its soils and climate. The petition states that most of the soils within the proposed Nashoba Valley AVA have a parent soil of supraglacial till, subglacial till, alluvial deposits, and glaciofluvial deposits. The most common soils in the proposed AVA belong to the Paxton soil series and comprise approximately 21 percent of the soils in the AVA. These soils are well-drained loamy soils and are moderately deep to very deep. The petition states that well-drained soils aid in minimizing fungal infections and rot. Additionally, the soil depth allows for unobstructed root growth, as roots can penetrate moderately deeply before hitting denser soils and very deeply before touching bedrock.

Throughout the growing season, average monthly temperatures within the proposed Nashoba Valley AVA range from a low of 47 degrees Fahrenheit (F) to 72 degrees F. July is typically the warmest month when the average high temperature is 82 degrees F. The proposed Nashoba Valley AVA has an average of 1,697 growing degree days (GDDs)  1 calculated in degrees Celsius, 2 which places it in Region III of the Winkler system. According to the petition, the warm climate within the proposed AVA is suitable for growing grape varietals such as Albarino, Cabernet Franc, Chardonnay, Riesling, and St. Croix, among others.

The petition also states that wind is another climate feature that affects viticulture. Between March and May, when grapevines begin producing buds, shoots, and flowers, average wind speeds in the proposed AVA range from 6.6 to 4.7 miles per hour. According to the petition, light winds during this period reduce the risk of frost damage to new growth. However, stronger winds can damage shoots and buds, leading to a smaller grape harvest. During the summer months of June to August, when increased humidity and rainstorms are common, average wind speeds range from 4.2 to 3.9 miles per hour. The petition states that these summer winds reduce the time needed for vineyards to dry and thus lessen the chance for molds and mildews to form.

To the immediate north of the proposed Nashoba Valley AVA are Fort Devens and the Bolton Flats Wildlife Management Area, which are not available for commercial viticulture. Farther north, the soils are not as well-drained as those of the proposed AVA, average wind speeds are lower, and average GDD accumulations are lower and in the Region II Category. East of the proposed AVA, the soils have a high water table and are not as well-drained as soils within the proposed AVA. Annual GDD accumulations east of the proposed AVA are slightly higher but still within the Region III category, while average monthly wind speeds are also higher. South of the proposed AVA, the region is largely urban with little land available for commercial viticulture. Annual GDD accumulations are within the Region II category, and average monthly wind speeds are slightly lower than within the proposed AVA. West of the proposed AVA, soils are shallower and have a slow water infiltration rate. Annual GDD accumulations are within the Region II category, and average monthly wind speeds are slower than within the proposed AVA.

TTB published Notice No. 230 in the Federal Register on January 5, 2024 (89 FR 721), proposing to establish the Nashoba Valley AVA. In the notice, TTB summarized the evidence from the petition regarding the name, boundary, and distinguishing features for the proposed AVA. The notice also included information from the petition comparing the distinguishing features of the proposed AVA to the surrounding areas. For a detailed description of the evidence relating to the name, boundary, and distinguishing features of the proposed AVA and for a detailed comparison of the distinguishing features of the proposed viticultural area to the surrounding areas, see Notice No. 230. In Notice No. 230, TTB solicited comments on the accuracy of the name, boundary, and other required information submitted in support of the petition. The comment period for Notice No. 230 closed on March 5, 2024.

In response to Notice No. 230, TTB received five comments. Four of the comments explicitly support the establishment of the proposed Nashoba Valley AVA, and some provide additional views of the distinctive characteristics of the region. One commenter (comment 2) notes that the climate, soil composition, and daily sunlight of the region have discernible effects on the products of the Nashoba Valley and that the AVA will help distinguish regional wines from wines from vineyards with different conditions across the State. Another (comment 3) highlights the distinctive soil that makes the land in the AVA area unique and notes that wines from the region have already been recognized in magazines such as Wine Enthusiast and Food and Wine.

The fifth commenter (comment 1) states that they generally support the establishment of the Nashoba Valley Viticultural Area and agrees that the petition demonstrated the distinctiveness of the terroir of the proposed AVA. The commenter further states that the petition would be stronger with more evidence of the area's “national distinctiveness,” and questions whether there is sufficient “national recognition of the proposed area by the wine industry and consumers.” The commenter states that the proposal would benefit from additional evidence of “national distinctiveness” and that the petitioner could supplement the record by providing references to the Nashoba Valley and its wine production from “historical documents, newspapers, magazines, books, or websites” or conduct surveys with “wine experts, retailers, or consumers outside the local area to gauge their awareness and perception of the Nashoba Valley name and wines.”

While TTB agrees that additional evidence could lend further support to the petition, TTB believes that the evidence submitted is sufficient to determine whether the AVA should be established. With regard to the evidence, TTB notes that § 9.12(a)(1) requires evidence that the name of a proposed AVA must be “currently and directly associated with an area in which viticulture exists” and that the area be “nationally or locally known by the name specified in the petition” (emphasis added). Additionally, § 9.12(a)(3) requires an AVA petition to include “a description of the common or similar features of the proposed AVA affecting viticulture that make it distinctive” and to explain how those features affect viticulture and how they differ from the features of the surrounding region. TTB believes these and the other criteria set forth in § 9.12 have been met and that the rulemaking record shows sufficient basis for establishing the AVA. TTB also notes that the regulations do not require a petition to contain evidence that the proposed AVA is nationally recognized for its wine or winegrape production or information regarding the level of consumers' and wine experts' current awareness of the region and its wines.

After careful review of the petition and the comments received in response to Notice No. 230, TTB finds that the evidence provided by the petitioner supports the establishment of the Nashoba Valley AVA. Accordingly, under the authority of the FAA Act, section 1111(d) of the Homeland Security Act of 2002, and parts 4 and 9 of the TTB regulations, TTB establishes the “Nashoba Valley” AVA in Worcester County, Massachusetts.

See the narrative description of the boundary of the Nashoba Valley AVA in the regulatory text published at the end of this final rule.

The petitioner provided the required maps, and they are listed below in the regulatory text. The Nashoba Valley AVA boundary may also be viewed on the AVA Map Explorer on the TTB website, at https://www.ttb.gov/wine/ava-map-explorer.

Part 4 of the TTB regulations prohibits any label reference on a wine that indicates or implies an origin other than the wine's true place of origin. For a wine to be labeled with an AVA name or with a brand name that includes an AVA name, at least 85 percent of the wine must be derived from grapes grown within the area represented by that name, and the wine must meet the other conditions listed in 27 CFR 4.25(e)(3). If the wine is not eligible for labeling with an AVA name and that name appears in the brand name, then the label is not in compliance and the bottler must change the brand name and obtain approval of a new label. Similarly, if the AVA name appears in another reference on the label in a misleading manner, the bottler would have to obtain approval of a new label. Different rules apply if a wine has a brand name containing an AVA name that was used as a brand name on a label approved before July 7, 1986. See 27 CFR 4.39(i)(2) for details.

With the establishment of the Nashoba Valley AVA, its name, “Nashoba Valley,” will be recognized as a name of viticultural significance under § 4.39(i)(3) of the TTB regulations (27 CFR 4.39(i)(3)). The text of the regulations clarifies this point. Consequently, wine bottlers using the name “Nashoba Valley” in a brand name, including a trademark, or in another label reference as to the origin of the wine, will have to ensure that the product is eligible to use the AVA name as an appellation of origin.

The establishment of the Nashoba Valley AVA will not affect any existing AVA. The establishment of the Nashoba Valley AVA will allow vintners to use “Nashoba Valley” as an appellation of origin for wines made primarily from grapes grown within the Nashoba Valley AVA if the wines meet the eligibility requirements for the appellation.

TTB certifies that this regulation will not have a significant economic impact on a substantial number of small entities. The regulation imposes no new reporting, recordkeeping, or other administrative requirement. Any benefit derived from the use of an AVA name would be the result of a proprietor's efforts and consumer acceptance of wines from that area. Therefore, no regulatory flexibility analysis is required.

It has been determined that this final rule is not a significant regulatory action as defined by Executive Order 12866, as amended. Therefore, no regulatory assessment is required.

Karen A. Thornton of the Regulations and Rulings Division drafted this final rule.

For the reasons discussed in the preamble, TTB amends title 27, chapter I, part 9, Code of Federal Regulations, as follows:

Section 105(e) of the Federal Alcohol Administration Act (FAA Act), 27 U.S.C. 205(e), authorizes the Secretary of the Treasury to prescribe regulations for the labeling of wine, distilled spirits, and malt beverages. The FAA Act provides that these regulations should, among other things, prohibit consumer deception and the use of misleading statements on labels and ensure that labels provide the consumer with adequate information as to the identity and quality of the product. The Alcohol and Tobacco Tax and Trade Bureau (TTB) administers the FAA Act pursuant to section 1111(d) of the Homeland Security Act of 2002, codified at 6 U.S.C. 531(d). In addition, the Secretary of the Treasury has delegated certain administrative and enforcement authorities to TTB through Treasury Order 120-01.

Part 4 of the TTB regulations (27 CFR part 4) authorizes TTB to establish definitive viticultural areas and regulate the use of their names as appellations of origin on wine labels and in wine advertisements. Part 9 of the TTB regulations (27 CFR part 9) sets forth standards for the preparation and submission to TTB of petitions for the establishment or modification of American viticultural areas (AVAs) and lists the approved AVAs.

Section 4.25(e)(1)(i) of the TTB regulations (27 CFR 4.25(e)(1)(i)) defines a viticultural area for American wine as a delimited grape-growing region having distinguishing features as described in part 9 of the regulations and a name and a delineated boundary, as established in part 9 of the regulations. These designations allow vintners and consumers to attribute a given quality, reputation, or other characteristic of a wine made from grapes grown in an area to the wine's geographic origin. The establishment of AVAs allows vintners to describe more accurately the origin of their wines to consumers and helps consumers to identify wines they may purchase. Establishment of an AVA is neither an approval nor an endorsement by TTB of the wine produced in that area.

Section 4.25(e)(2) of the TTB regulations (27 CFR 4.25(e)(2)) outlines the procedure for proposing an AVA and allows any interested party to petition TTB to establish a grape-growing region as an AVA. Section 9.12 of the TTB regulations (27 CFR 9.12) prescribes standards for petitions for the establishment or modification of AVAs. Petitions to establish an AVA must include the following:

• Evidence that the area within the proposed AVA boundary is nationally or locally known by the AVA name specified in the petition;

• An explanation of the basis for defining the boundary of the proposed AVA;

• A narrative description of the features of the proposed AVA affecting viticulture, such as climate, geology, soils, physical features, and elevation, that make the proposed AVA distinctive and distinguish it from adjacent areas outside the proposed AVA boundary;

• The appropriate United States Geological Survey (USGS) map(s) showing the location of the proposed AVA, with the boundary of the proposed AVA clearly drawn thereon; and

• A detailed narrative description of the proposed AVA boundary based on USGS map markings.

TTB received a petition from the Appalachian Region Wine Producers Association, proposing the establishment of the “Nine Lakes of East Tennessee” AVA. The proposed AVA is in Anderson, Blount, Campbell, Claiborne, Cocke, Grainger, Hamblen, Jefferson, Knox, Loudon, Monroe, Roane, Sevier, and Union Counties in Tennessee. The proposed AVA contains approximately 4,064-square miles (2,601,390 acres) with approximately 232 acres of planted vineyards spread across the proposed AVA. There are also 29 wineries within the proposed AVA. According to the petition, the distinguishing features of the proposed Nine Lakes of East Tennessee AVA are its geology, soils, topography, and climate.

According to the petition, the proposed Nine Lakes of East Tennessee AVA is located in the Valley and Ridge Province of eastern Tennessee and contains all or portions of the 14 counties that surround the nine lakes formed by the Tennessee Valley Authority dams along the Tennessee River. The geology of the proposed AVA consists almost entirely of sedimentary rocks initially deposited during the Paleozoic Era, when an ocean covered most of eastern North America. The folding and fracturing of the sediments and rocks formed ridges and valleys with southwest-to-northeast orientations. The petition states that the orientation of these ridges and valleys allows vineyard owners to select locations with slope aspects that allow for first light to dry the heavy dew from the vines and thus help in disease prevention. The slope aspects also shade vines from the evening sun and thus prevent excessive heat on the grape clusters. Elevations within the proposed AVA range from 1,100 to 1,500 feet in the ridges and 700 to 1,000 feet in the valleys.

The petition states that the geology of the regions to the north and south of the proposed AVA is similar to that of the proposed AVA, given that all three locations are part of the Valley and Ridge Province. However, elevations north of the proposed AVA are higher, while elevations to the south are lower. To the east is the Appalachian Mountain System which is comprised of Lower Paleozoic limestone, dolomite, and shale with exposures of Precambrian igneous and metamorphic basement rocks such as tuff, rhyolite, granite, schist, and quartzite, as well as Precambrian sedimentary and metamorphic sandstone, conglomerate, arkose, and siltstone. Elevations in this region range from 1,000 to 6,643 feet. To the west of the proposed AVA are the Cumberland Plateau and Cumberland Escarpment, which consist of uplifted caprock of Pennsylvanian age sandstone and conglomerate. Average elevations west of the proposed AVA range from 1,500 to 1,800 feet.

The soils of the proposed Nine Lakes of East Tennessee AVA are classified as Ultisols, which the petition describes as soils that are “strongly leached, acid forest soils with low native fertility” and a clay-enriched subsoil. Soil depth ranges from shallow to very deep. The soils have a udic soil moisture regime and an average temperature of 59 to 72 degrees Fahrenheit (F) at a depth of 20 inches. The petition states that timely application of fertilizer and lime in vineyards are important to maximize grape yield in these soils.

To the north and south of the proposed AVA, the soils are similar, because all three regions are in the Valley and Ridge Province. To the east of the proposed AVA, soils are commonly well-drained and acidic and can be shallow to very deep. The primary soil orders are Inceptisols and, to a significantly lesser extent, Ultisols. The soils have an udic soil moisture regime, and the average annual soil temperature regimes are mesic (between 47 and 59 degrees F) and frigid (lower than 46.4 degrees F). West of the proposed AVA, the main soil orders are Inceptisols and Ultisols with a thermic or mesic soil temperature regime and an udic soil moisture regime.

According to the petition, the climate of the proposed Nine Lakes of East Tennessee AVA is warmer than that of each of the surrounding regions except the region to the south. The mean growing season length  1 within the proposed AVA is 212.8 days. The average growing season growing degree day (GDD) accumulation is 3,837, placing the proposed AVA in Winkler Region IV. 2 The average maximum temperature is 69 degrees F, while the average minimum temperature is 45 degrees F, placing the proposed AVA in USDA Plant Hardiness Zone 7a. Average annual precipitation amounts total 51.09 inches. According to the petition, the climate of the proposed AVA is suitable for growing a wide variety of grapes, including vinifera, hybrid, native, and muscadine varietals.

To the northeast of the proposed AVA, the mean growing season is shorter, and the region is classified as a Winkler Region III with fewer GDDs than the proposed AVA. The region is also in USDA Plant Hardiness Zone 6b, with lower average maximum and minimum temperatures and lower annual precipitation amounts than the proposed AVA. To the east, the climate is also cooler than within the proposed AVA, with a shorter growing season length, fewer GDDs, a Winkler Region II classification, lower average maximum and minimum temperatures, and a USDA Plant Hardiness Zone classification of 6b. However, average annual rainfall amounts east of the proposed AVA are higher. To the south, the mean growing season length is longer, the average minimum and maximum temperatures are higher, GDD accumulations are higher and place the region in Winkler Region V, and average annual precipitation amounts are higher. West of the proposed AVA, the average growing season length is almost identical. Although the region to the west is also a Winkler Region IV, it accumulates slightly fewer GDDs annually than the proposed AVA. Average annual maximum and minimum temperatures are slightly cooler, placing it in USDA Plant Hardiness Zone 6b. Annual precipitation amounts west of the proposed AVA are higher.

TTB published Notice No. 226 in the Federal Register on September 20, 2023 (88 FR 64846), proposing to establish the Nine Lakes of East Tennessee AVA. In the notice, TTB summarized the evidence from the petition regarding the name, boundary, and distinguishing features for the proposed AVA. The notice also compared the distinguishing features of the proposed AVA to the surrounding areas. For a detailed description of the evidence relating to the name, boundary, and distinguishing features of the proposed AVA, and for a detailed comparison of the distinguishing features of the proposed AVA to the surrounding areas, see Notice No. 226. In Notice No. 226, TTB solicited comments on the sufficiency and accuracy of the name, boundary, and other required information submitted in support of the petition. The comment period closed on November 20, 2023.

In response to Notice No. 226, TTB received nine comments. One comment received through regulations.gov was a request for contact about a registration unrelated to the proposed AVA, the AVA program, or TTB rulemaking. That comment is not posted to the docket. The eight remaining comments were from the Tennessee Wine and Grape Board, the Appalachian Region Wine Producers Association (the submitter of the petition to establish the AVA), the Union County Chamber of Commerce, the Tennessee Farm Winegrowers Alliance, and members of the public. Seven of the comments (comments 2 through 8) express full support for the proposed AVA as a way to increase tourism, new businesses, and public awareness of wines produced from grapes grown in the region.

One comment (comment 1) provided additional input on the proposed AVA's name, location, and “distinguishing features that set it apart from the surrounding regions.” It acknowledges the distinctiveness of the proposed AVA and describes awards that several local wine producers have won. However, the comment also notes “some disadvantages that may affect its recognition and value.” The commenter states that its size may make it difficult “to maintain a consistent identity and quality among the wines produced in the region,” which might “dilute the significance and recognition of the appellation” among consumers and trade. The comment also stated that the relatively low number of vineyards and wineries (specifically 19 vineyards with a total of 232 acres of planted vines and 10 wineries) within the proposed AVA may “limit the availability and diversity” of wines from the area and could indicate a “lack of interest and investment in grape growing and wine making in the region.” Finally, the comment states that establishing the proposed Nine Lakes of East Tennessee AVA may overlap with the “Rocky Top AVA” and the “Great Valley of East Tennessee AVA,” and create confusion in labeling and marketing of wines from these areas, or “undermine the distinctiveness and value” of the “Rocky Top AVA and the Great Valley of East Tennessee AVA.”

As noted above, TTB establishes AVAs to allow winemakers to better describe, in labeling and advertising, the origins of their wines and to allow consumers to better identify wines they may purchase. TTB reviews any petition for the establishment of an AVA based on the criteria set forth in its regulations and on comments received on those criteria from interested parties during the public comment period. The extent to which wines from an established AVA ultimately achieve recognition depends on a number of factors beyond the establishment of the AVA and is not considered in determining whether to establish a proposed AVA. With respect to the concern that the large size of the proposed AVA may make it difficult for winemakers to maintain a consistent identity and/or quality among the wines produced within the region, TTB believes that the petition adequately demonstrated the similar grape-growing conditions throughout the proposed AVA, and no comments were received that disputed that information or raised questions about the distinguishing features. However, TTB recognizes that differences in quality and character of wines can occur in wines from AVAs of any size as a result of the skills and preferences of the winemakers rather than to differences in soils, climate, or topography within the AVA.

Regarding the number of wineries, vineyards, and acres of vines within the proposed AVA, TTB does not take a position with regard to whether the total vineyard acreage or number of wineries within a proposed AVA suggests a level of current or future interest or investment in grape growing or wine making. Any future growth that may occur in the region would be due to the efforts of vineyard owners and winemakers in the region and customer acceptance of the wines.

Finally, with regard to a concern that the proposed AVA overlaps “the Rocky Top AVA and the Great Valley of East Tennessee AVA,” TTB notes that there are no AVAs located within the proposed Nine Lakes of East Tennessee AVA. While “Rocky Top” and the “Great Valley of East Tennessee” may be locally known names of winemaking regions, they are not approved AVAs under TTB regulations.

After careful review of the petition and the comments received in response to Notice 226, TTB finds that the evidence provided by the petitioner supports establishing the Nine Lakes of East Tennessee AVA as proposed. Accordingly, under the authority of the FAA Act, section 1111(d) of the Homeland Security Act of 2002, and parts 4 and 9 of the TTB regulations, TTB establishes the “Nine Lakes of East Tennessee” AVA in northeastern Tennessee, effective 30 days from the publication date of this document.

See the narrative description of the boundary of the Nine Lakes of East Tennessee AVA in the regulatory text published at the end of this final rule.

The petitioner provided the required maps, and they are listed below in the regulatory text. The Nine Lakes of East Tennessee AVA boundary may also be viewed on the AVA Map Explorer on the TTB website, at https://www.ttb.gov/wine/ava-map-explorer.

Part 4 of the TTB regulations prohibits any label reference on a wine that indicates or implies an origin other than the wine's true place of origin. For a wine to be labeled with an AVA name or with a brand name that includes an AVA name, at least 85 percent of the wine must be derived from grapes grown within the area represented by that name, and the wine must meet the other conditions listed in 27 CFR 4.25(e)(3). If the wine is not eligible for labeling with an AVA name and that name appears in the brand name, then the label is not in compliance and the bottler must change the brand name and obtain approval of a new label. Similarly, if the AVA name appears in another reference on the label in a misleading manner, the bottler would have to obtain approval of a new label. Different rules apply if a wine has a brand name containing an AVA name that was used as a brand name on a label approved before July 7, 1986. See 27 CFR 4.39(i)(2) for details.

With the establishment of the Nine Lakes of East Tennessee AVA, its name, “Nine Lakes of East Tennessee,” will be recognized as a name of viticultural significance under § 4.39(i)(3) of the TTB regulations (27 CFR 4.39(i)(3)). The text of the regulations clarifies this point. Consequently, wine bottlers using the name “Nine Lakes of East Tennessee” in a brand name, including a trademark, or in another label reference to the origin of the wine, will have to ensure that the product is eligible to use the AVA name as an appellation of origin.

Establishing the Nine Lakes of East Tennessee AVA will not affect any existing AVA. Establishing the Nine Lakes of East Tennessee AVA will allow vintners to use “Nine Lakes of East Tennessee” as an appellation of origin for wines made primarily from grapes grown within the Nine Lakes of East Tennessee AVA if the wines meet the eligibility requirements for the appellation.

TTB certifies that this regulation will not have a significant economic impact on a substantial number of small entities. The regulation imposes no new reporting, recordkeeping, or other administrative requirement. Any benefit derived from the use of an AVA name would be the result of a proprietor's efforts and consumer acceptance of wines from that area. Therefore, no regulatory flexibility analysis is required.

It has been determined that this final rule is not a significant regulatory action as defined by Executive Order 12866, as amended. Therefore, no regulatory assessment is required.

Karen A. Thornton of the Regulations and Rulings Division drafted this final rule.

For the reasons discussed in the preamble, TTB amends title 27, chapter I, part 9, Code of Federal Regulations, as follows:

Throughout this document whenever “we,” “us,” or “our” is used, we mean “the EPA.”

Section 111 of the CAA, “Standards of Performance for New Stationary Sources,” directs the EPA to establish emission standards for stationary sources of air pollution that could potentially endanger public health or welfare. These standards are referred to as the New Source Performance Standards (NSPS). Section 111(b) of the CAA directs the EPA to publish and periodically revise a list of categories of stationary sources which cause or significantly contribute to air pollution, and to establish the NSPS within these categories. Section 111(d) of the CAA addresses the process by which the EPA and States regulate standards of performance for existing sources belonging to those categories established in CAA section 111(b). When the NSPS are promulgated for new sources, CAA section 111(d) and the EPA regulations require that the EPA publish an Emission Guideline (EG) to regulate the same pollutants from existing facilities. While the NSPS are directly applicable to new sources, an EG for an existing source (designated facility) is intended for States to use to develop a State plan to submit to the EPA. Section 111 of the CAA and 40 CFR 60.27(c) and (d) require the EPA to develop, implement, and enforce a Federal plan for designated facilities located in any State or Indian country that does not have an approved State plan under CAA section 111 that implements the EG. These Federal plans are published in 40 CFR part 62 Approval and Promulgation of State Plans for Designated Facilities and Pollutants.

A State, or local clean air agency in this case, may then meet its CAA section 111(d) obligations by submitting a formal written request for delegation of authority to implement and enforce the Federal plans. On August 11, 2021, SWCAA requested delegation of authority to implement and enforce the following Federal plans in 40 CFR part 62:

• Subpart HHH: Federal Plan Requirements for Hospital/Medical/Infectious Waste Incinerators Constructed on or Before December 1, 2008, in lieu of the requirement to submit a State plan pursuant to 40 CFR part 60, subpart Ce: Emission Guidelines and Compliance Times for Hospital/Medical/Infectious Waste Incinerators (HMIWI);

• Subpart III: Federal Plan Requirements for Commercial and Industrial Solid Waste Incineration Units that Commenced Construction on or before November 30, 1999, in lieu of the requirement to submit a State plan pursuant to 40 CFR part 60, subpart DDDD: Emissions Guidelines and Compliance Times for Commercial and Industrial Solid Waste Incineration Units (CISWI);

• Subpart JJJ: Federal Plan Requirements for Small Municipal Solid Waste Combustion Units Constructed on or before August 30, 1999, in lieu of the requirement to submit a State plan pursuant to 40 CFR, part 60, subpart BBBB: Emission Guidelines and Compliance Times for Small Municipal Solid Waste Combustion Units Constructed on or before August 30, 1999 (SMWC);

• Subpart LLL: Federal Plan for Sewage Sludge Incineration Units Constructed on or before October 14, 2010, in lieu of the requirement to submit a State plan pursuant to 40 CFR part 60, subpart MMMM: Emission Guidelines and Compliance Times for Existing Sewage Sludge Incineration Units (SSI).

The criteria for delegation for each Federal plan varies by subpart. 1 However, as a general matter, the framework for the EPA to transfer implementation and enforcement authority requires the State or local agency to request delegation through a letter that:

• Demonstrates the State or local agency has adequate resources, as well as the legal authority, to administer and enforce the program;

• Includes an inventory of designated facilities and an inventory of the designated units' air emissions;

• Certifies a public hearing was held on the State or local agency delegation request; and

• A commitment to enter into an MOA between the State or local agency and the EPA that sets forth the terms and conditions of the delegation, the effective date of the agreement, and the mechanism to transfer authority.

Upon signature of the agreement, the approved document will be published in the Federal Register , thereby incorporating the delegation of authority into the appropriate subpart of 40 CFR part 62.

The EPA has evaluated SWCAA's Federal plan delegation request submittal package to determine whether the package meets the applicable requirements. The EPA's detailed rationale and discussion on the submittal package can be found in the Technical Support Document (TSD), located in the docket for this action. The applicable provisions and the EPA's analysis are briefly summarized as follows:

• SWCAA demonstrated adequate resources and legal authority to administer Federal plans. SWCAA is the operating permitting authority and the new source review permitting authority in non-Tribal land  2 in Clark, Cowlitz, Lewis, Skamania, and Wahkiakum counties  3 and has the authority to implement and enforce delegated standards in 40 CFR parts 60, 61, and 63. SWCAA provided a statement that referenced a letter from legal counsel submitted as part of their initial request for delegation of National Emission Standards for Hazardous Air Pollutants identifying statutes in the Revised Code of Washington giving SWCAA the authority to promulgate rules and regulations; carry out the Federal plan; adopt emission limits and compliance schedules; enforce applicable laws, regulations standards and compliance schedules; obtain information to determine compliance; and require the installation of control equipment.

• SWCAA provided an inventory of SSI units subject to the SSI Federal plan and the results of recent emissions tests. SWCAA attested that they were not aware of any existing units subject to the other Federal plans for which they requested delegation.

• SWCAA provided a hearings officer report showing that they held a public comment period lasting from April 8-June 23, 2021, ending with a public hearing on June 23, 2021. No member of the public attended the hearing. One comment letter was received from the Vancouver Westside Water Treatment Plant, which operates a unit subject to the Federal plan for SSI. The comment was not adverse.

• SWCAA committed to enter an MOA to meet the requirements for delegation of the Federal plans for HMIWI, CISWI, SMWC, and SSI units.

The MOA was signed by the EPA Region 10 Regional Administrator on March 27, 2023, the SWCAA Executive Director on March 28, 2023, and became effective upon signature. The effective MOA applies to the designated facilities within SWCAA's jurisdiction and is not implemented and enforced on Indian land.

The EPA has evaluated SWCAA's submittal for consistency with the CAA, EPA regulations, and EPA policy. The EPA determined that SWCAA has met all the requirements of the EPA's guidance for obtaining the delegation of authority to implement and enforce the Federal plan.

Section 553(b)(B) of the Administrative Procedure Act, 5 U.S.C. 553(b)(B), provides that, when an agency for good cause finds that public notice and comment procedures are impracticable, unnecessary, or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment. The EPA has determined that there is good cause for making this rule final without prior proposal and opportunity for comment because such notice and opportunity for comment is unnecessary.

The EPA conducted full notice and comment rulemaking in promulgating the respective Federal plans (40 CFR part 62, subparts HHH, III, JJJ, and LLL). The EPA has already approved the delegation of authority to implement and enforce the Federal plans to SWCAA, effective following the signature of both parties on the MOA. SWCAA also held a public hearing and solicited public comment about the request for delegation of authority, pursuant to the requirements in 40 CFR 60.23(d), 60.23(e), 60.2515(a)(6), 60.1515(a)(6), 62.14401(a)(3), and 62.15865(a)(3). Notice and comment are “unnecessary” as this final rule only takes the ministerial action of updating the regulatory text in 40 CFR part 62 to reflect this transfer of authority. It does not alter the universe of sources regulated under the Federal plan and it does not change the regulatory requirements applicable to those sources.

Section 553(d)(3) of the Administrative Procedures Act, 5 U.S.C. 553(d)(3), provides that the required publication of service of a substantive rule shall be made not less than 30 days before its effective date, except as otherwise provided by the agency for good cause found and published with the rule. The EPA has determined that there is good cause for this rule to become effective upon publication. Delaying the effective date is unnecessary and contrary to the public interest because the EPA has already approved the delegation of authority to implement and enforce the Federal plans to SWCAA, effective following the signature of both parties on the MOA. In addition, this rule does not affect any of the substantive requirements in the delegated Federal plans nor impact the compliance obligations of any sources subject to the Federal plans.

The EPA is amending regulatory text at 40 CFR part 62, subpart WW—Washington, to promulgate the approved delegation of authority through the MOA to SWCAA for implementing and enforcing Federal plan requirements under 40 CFR part 62, subparts HHH, III, JJJ, and LLL.

Under the CAA, the Administrator has the authority to delegate the authority to implement a CAA section 111(d) Federal plan that complies with the provisions of the CAA and applicable Federal regulations. (40 CFR 60.27). In reviewing CAA section 111(d) delegation requests, the EPA's role is to approve State choices, provided they meet the criteria of the CAA and the EPA's implementing regulations. Accordingly, this action merely codifies in the Code of Federal Regulations the EPA's delegation of authority to implement the Federal plans and does not impose additional requirements beyond those imposed by the already applicable Federal plans.

This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.

This action is not subject to Executive Order 14192 (90 FR 9065, February 6, 2025) because approvals of 111(d) actions are exempt from review under Executive Order 12866.

This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq. ).

This action merely codifies in the approval of the transfer of authority from EPA to SWCAA for the for HMIWI, CISWI, SMWC, and SSI units Federal plans. Accordingly, the Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq. ).

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action does not impose additional requirements beyond those imposed by the already-applicable Federal plan. Accordingly, no additional costs to State, local, or Tribal governments, or to the private sector, will result from this action.

This action does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.

Executive Order 13175 (65 FR 67249, November 9, 2000), requires the EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This rule does not have Tribal implications, as specified in Executive Order 13175. It will not have substantial direct effects on Tribal governments. Thus, Executive Order 13175 does not apply to this rule.

This action is not subject to Executive Order 13045 because it is not 3(f)(1) significant as defined in Executive Order 12866, and because the EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children.

This action is not subject to Executive Order 13211 (66 FR 28355 (May 22, 2001)), because it is not a significant regulatory action under Executive Order 12866.

This rule does not involve technical standards and is therefore not subject to the requirements of section 1(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note).

This action is subject to the Congressional Review Act, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by May 26, 2026. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

For the reasons set forth in the preamble, 40 CFR part 62 is amended as follows: