614 Federal Register / Vol. 84, No. 21 / Thursday, January 31, 2019 / Proposed Rules 

Dated: January 28, 2019. 

Mary L. Johnson, 

General Counsel. 

[FR Doc. 2019–00406 Filed 1–30–19; 8:45 a.m.] 

BILLING CODE 7550–01–P 

FEDERAL MEDIATION AND 

CONCILIATION SERVICE 

29 CFR Part 1404 

RIN 3076–AA14 

Arbitration Services 

AGENCY: Federal Mediation and 

Conciliation Service. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Federal Mediation and 

Conciliation Service (FMCS) is 

proposing to revise the current 

arbitration regulation to clarify existing 

provisions; eliminate redundancies and 

provisions that are never used in 

practice; consolidate sections; update 

contact information; reduce award 

submission requirements and reference 

an apprenticeship alternative for joining 

the Roster after completion of specified 

training; implement a modest increase 

in user fees that have remained 

unchanged for more than 8 years, and 

remove section 1404.20. 

DATES: Comments must be submitted to 

the office listed in the address section 

below on or before January 19, 2019. 

ADDRESSES: Submit written comments 

identified by RIN 3076–AA14, by mail 

to Arthur Pearlstein, Director, Office of 

Arbitration Services, FMCS, 250 E Street 

SW, Washington, DC 20427. Comments 

may be submitted by fax to (202) 606– 

8103 or electronically to apearlstein@

fmcs.gov. Comments may also be sent by 

electronic mail message over the 

internet via the Federal eRulemaking 

Portal. See Federal eRulemaking Portal 

website (http://www.regulations.gov) for 

instructions on providing comments via 

the Federal Rulemaking Portal. 

All comments will be available for 

inspection at 250 E Street SW, 

Washington, DC 20427, Room 7113 

(Reading Room) from 8:30 a.m. to 4:30 

p.m. Monday through Friday, excluding 

legal holidays. 

FOR FURTHER INFORMATION CONTACT: 

Arthur Pearlstein, Director, Office of 

Arbitration Services, FMCS, 250 E Street 

SW, Washington, Dc 20427. Telephone: 

(202) 606–8103. 

SUPPLEMENTARY INFORMATION: The 

enabling legislation for FMCS provides 

that ‘‘the settlement of issues between 

employers and employees through 

collective bargaining may be advanced 

by making available full and adequate 

governmental facilities for conciliation, 

mediation, and voluntary arbitration 

. . .’’ 29 U.S.C. 171(b). Pursuant to the 

statute and 29 CFR part 1404, FMCS has 

long maintained a roster of qualified, 

private labor arbitrators to hear disputes 

arising under collective bargaining 

agreements and provide fact finding and 

interest arbitration. The existing 

regulation establishes the policy and 

administrative responsibility for the 

FMCS Roster, criteria and procedures 

for listing and removal, procedures for 

using arbitration services, an option for 

expedited arbitration and, in the 

appendix, a schedule of user fees. 

FMCS is proposing to revise the 

current arbitration regulation to (1) 

clarify and shorten existing provisions 

and naming conventions and make 

other helpful style improvements; (2) 

eliminate redundancies and provisions 

that are never used in practice; (3) 

consolidate sections for ease of 

understanding and placement under 

appropriate headings; (4) update contact 

information and provisions regarding 

the use of technology; (5) reduce award 

submission requirements and reference 

an apprenticeship alternative for joining 

the Roster after completion of specified 

training; and (6) implement a modest 

increase in user fees that have remained 

unchanged for more than 8 years. The 

increased fees more accurately reflect 

FMCS’s costs of maintaining the Roster 

and the technology to support it, as well 

as responding to requests for arbitrator 

panels and biographical data. The 

arbitrator listing fee increase would only 

apply to arbitrators on the Roster for 5 

or more years, reflecting the greater 

likelihood for more experienced 

arbitrators to be selected by parties. 

Section-by-Section Analysis 

1. In § 1404.1, revise to make minor 

style improvements 

2. In § 1404.3, revise (b) to eliminate 

‘‘Services’’ from the Office title and use 

the abbreviated term ‘‘Roster;’’ revise (c) 

to make minor style improvements and 

eliminate (c)(1)(v) as unnecessary so 

that that it reads as follows: 

3. In § 1404.4, revise (b) for minor 

style improvements, consolidate 

relevant portions of (d) and (e) to 1404.9 

to place under the relevant heading and 

reduce verbiage, and revise last 

paragraph to renumber as (d) and 

eliminate redundant language. 

4. In § 1404.5, revise preamble to 

update contact information and reflect 

that Director may designate someone to 

review Board recommendations; revise 

(b) to clarify requirements; revise (d) to 

make minor style improvements; specify 

in (3) that violations by arbitrators are 

not limited to late awards; clarify in (5) 

that information about arbitrator 

misconduct may come to the attention 

of FMCS in different ways, and remove 

existing (6) as extraneous and never 

used; renumber (7) as (6); and revise (f) 

for minor style improvements. 

5. In § 1404.6, revise for minor style 

improvements, eliminate excess 

verbiage, and change language in (b) 

from ‘‘are encouraged to’’ to ‘‘must’’ to 

clarify requirement for arbitrators whose 

schedules do not permit timely hearing. 

6. In § 1404.9, revise (a) to update 

contact information, and the rest of the 

section to incorporate consolidations 

from 1404.4 and 1404.11, rearrange for 

clarity, and eliminate redundant 

language. 

7. In § 1404.11, moved existing (a) to 

1404.9, and otherwise eliminated 

redundant or extraneous language 

throughout. 

8. In § 1404.12, revised with minor 

style changes, eliminated existing (b) 

due to redundant language, clarified 

ambiguous and confusing language in 

existing (c) (new (b)), consolidated 

existing (d) into new (b), and eliminated 

(f) for unnecessary language. 

9. In § 1404.13, revise with minor 

style improvement and specify that 

hearings must conform to Code of 

Professional Responsibility 

requirements. 

10. In § 1404.14, revise to make minor 

style improvements, clarify language 

regarding delay and scheduling, clarify 

time for submitting arbitrator report and 

fee statement, and change language 

regarding consent for award publication 

to conform with requirements of the 

Code of Professional Responsibility and 

industry practice. 

11. In § 1404.15, revise (a) to allow 

arbitrators to raise fees with notice if a 

case continues for over two years after 

appointment, (b) to allow arbitrators to 

specify multiple business addresses, 

and (d) to clarify information on fee 

disputes. 

12. In § 1404.16, revise (a) to update 

for technology changes and to require 

arbitrators to provide contact 

information in the event they become 

incapacitated or deceased, and (b) to 

eliminate excess verbiage. 

13. In § 1404.17, revise to eliminate 

excess verbiage. 

14. In § 1404.18, revise to make minor 

style improvements and reduce words. 

15. Remove § 1404.20 as the language 

is unnecessary and has never been 

applied. 

16. Revise the Appendix to change fee 

schedules. 

This rule is not a significant 

regulatory action for the purposes of 

Executive Order 12866 and has not been 

reviewed by the Office of Management 


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and Budget. As required by the 

Regulatory Flexibility Act, I certify that 

this rule will not have a significant 

impact on a substantial number of small 

entities. This regulation does not have 

any federalism or tribal implications. 

List of Subjects in 29 CFR Part 1404 

Administrative practice and 

procedures, Labor management 

relations. 

For the reasons stated in the 

preamble, FMCS proposes to revise 29 

CFR part 1404 to read as follows: 

PART 1404—ARBITRATION SERVICES 

Subpart A—Arbitration Policy; 

Administration of Roster 

Sec. 

1404.1 Scope and authority 

1404.2 Policy 

1404.3 Administrative responsibilities 

Subpart B—Roster of Arbitrators; 

Admission and Retention 

1404.4 Roster and status of members 

1404.5 Listing on the roster, criteria for 

listing and removal, procedure for 

removal 

1404.6 Inactive status 

1404.7 Listing fee 

Subpart C—Procedures for Arbitration 

Services 

1404.8 Freedom of choice 

1404.9 Procedures for requesting arbitration 

lists and panels 

1404.10 Arbitrability 

1404.11 Nomination of arbitrators 

1404.12 Selection by parties and 

appointment of arbitrators 

1404.13 Conduct of hearings 

1404.14 Decision and award 

1404.15 Fees and charges of arbitrators 

1404.16 Reports and biographical sketches 

Subpart D—Expedited Arbitration 

1404.17 Policy 

1404.18 Procedures for requesting 

expedited panels 

1404.19 Arbitration Process 

Appendix To Part 1404—Arbitration Policy; 

Schedule of Fees 

Authority: 29 U.S.C. 172 and 29 U.S.C. 

173 et seq. 

Source: 62 FR 34171, June 25, 1997, 

unless otherwise noted. 

Subpart A—Arbitration Policy; 

Administration of Roster 

§ 1404.1 Scope and authority. 

This chapter is issued by the Federal 

Mediation and Conciliation Service 

(FMCS) under Title II of the Labor 

Management Relations Act of 1947 (Pub. 

L. 80–101) as amended. It applies to all 

arbitrators listed on the FMCS Roster of 

Arbitrators (the Roster), to all applicants 

for listing on the Roster, and to all 

persons or parties seeking to obtain from 

FMCS either names or panels of names 

of arbitrators listed on the Roster in 

connection with disputes that are to be 

submitted to arbitration or fact-finding. 

§ 1404.2 Policy. 

The labor policy of the United States 

promotes and encourages the use of 

voluntary arbitration to resolve disputes 

over the interpretation or application of 

collective bargaining agreements. 

Voluntary arbitration and fact-finding 

are important features of constructive 

employment relations as alternatives to 

economic strife. 

§ 1404.3 Administrative responsibilities. 

(a) Director. The Director of FMCS has 

responsibility for all aspects of FMCS 

arbitration activities and is the final 

agency authority on all questions 

concerning the Roster and FMCS 

arbitration procedures. 

(b) Office of Arbitration. The Office of 

Arbitration (OA) maintains the Roster; 

administers subpart C of this part 

(Procedures for Arbitration Services); 

assists, promotes, and cooperates in the 

establishment of programs for training 

and developing new arbitrators; and 

provides names or panels of names of 

listed arbitrators to parties requesting 

them. 

(c) Arbitrator Review Board. The 

Arbitrator Review Board (Board) shall 

consist of a chair and members 

appointed by the Director who shall 

serve at the Director’s pleasure. The 

Board shall be composed entirely of 

full-time officers or employees of the 

Federal Government and shall establish 

procedures for carrying out its duties. 

(1) Duties of the Board. The Board 

shall: 

(i) Review the qualifications of all 

applicants for listing on the Roster, 

interpreting and applying the criteria set 

forth in § 1404.5; 

(ii) Review the status of all persons 

whose continued eligibility for listing 

on the Roster has been questioned under 

§ 1404.5; 

(iii) Recommend to the Director the 

acceptance or rejection of applicants for 

listing on the Roster, or the withdrawal 

of listing on the Roster for any of the 

reasons set forth in this part; 

(iv) At the request of the Director, or 

upon its own volition, review 

arbitration policies and procedures, 

including all regulations and written 

guidance regarding the use of Roster 

arbitrators, and make recommendations 

regarding such policies and procedures 

to the Director 

(2) [Reserved] 

Subpart B—Roster of Arbitrators; 

Admission and Retention 

§ 1404.4 Roster and status of members. 

(a) The Roster. FMCS shall maintain 

a Roster of labor arbitrators consisting of 

persons who meet the criteria for listing 

contained in § 1404.5 and who remain 

in good standing. 

(b) Adherence to Standards and 

Requirements. Persons listed on the 

Roster shall comply with FMCS rules 

and regulations pertaining to arbitration 

and with such guidelines and 

procedures as may be issued by OA 

pursuant to subpart C of this Part. 

Arbitrators shall conform to the ethical 

standards and procedures set forth in 

the Code of Professional Responsibility 

for Arbitrators of Labor Management 

Disputes, as approved by the National 

Academy of Arbitrators, FMCS, and the 

American Arbitration Association (‘‘the 

Code’’). 

(c) Status of arbitrators. Persons who 

are listed on the Roster and are selected 

or appointed to hear arbitration matters 

or to serve as factfinders do not become 

employees of the Federal Government 

by virtue of their selection or 

appointment. Following selection or 

appointment, the arbitrator’s 

relationship is solely with the parties to 

the dispute, except that arbitrators are 

subject to certain reporting requirements 

and to standards of conduct as set forth 

in this part. 

(d) Rights of persons listed on the 

Roster. No person shall have any right 

to be listed or to remain listed on the 

Roster. FMCS retains its authority and 

responsibility to assure that the needs of 

the parties using its services are served. 

To accomplish this purpose, FMCS may 

establish procedures for the preparation 

of panels or the appointment of 

arbitrators or factfinders that include 

consideration of such factors as 

background and experience, availability, 

acceptability, geographical location, and 

the expressed preferences of the parties. 

§ 1404.5 Listing on the roster, criteria for 

listing and removal, procedure for removal. 

Persons seeking to be listed on the 

Roster must complete and submit an 

application available online at https://

www.fmcs.gov/services/arbitration/ 

information-joining-arbitrator-roster/. 

Upon receipt of an executed 

application, OA will review the 

application, ensure that it is complete, 

make such inquiries as are necessary, 

and submit the application to the Board. 

The Board will review the completed 

application under the criteria in 

paragraphs (a), (b) and (c) of this 

section, and will forward to the FMCS 

Director, or Director’s designee, its 


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recommendation as to whether or not 

the applicant meets the criteria for 

listing on the Roster. The Director shall 

make all final decisions as to whether 

an applicant may be listed on the 

Roster. Each applicant shall be notified 

in writing of the Director’s decision and 

the reasons therefore. 

(a) General Criteria. (1) Applicants 

will be listed on the Roster upon a 

determination that he or she: 

(i) Is experienced, competent, and 

acceptable in decision-making roles in 

the resolution of labor relations 

disputes; or 

(ii) Has extensive and recent 

experience in relevant positions in 

collective bargaining; and 

(iii) Is capable of conducting an 

orderly hearing, can analyze testimony 

and exhibits and can prepare clear and 

concise findings and awards within 

reasonable time limits. 

(iv) For applicants who are 

governmental employees, the following 

criteria shall also apply: 

(A) Federal Employees: These 

applicants must provide OA with 

written permission from their employer 

to work as an arbitrator. Federal 

employees will not be assigned to 

panels involving the Federal 

Government. 

(B) Governmental Employees other 

than Federal: These applicants must 

provide OA with written permission 

from their employer to work as an 

arbitrator as well as a statement of the 

jurisdiction(s) in which the applicant is 

permitted to do this work. 

(2) FMCS may identify certain 

positions relating to collective 

bargaining that will substitute for the 

General Criteria. FMCS may also 

identify periodic educational 

requirements for remaining on the 

Roster. 

(b) Proof of Qualification. Unless 

waived under exceptional 

circumstances wholly in the discretion 

of the Director, applicants must: 

(1) Submit five recent labor arbitration 

awards that are final and binding, and 

prepared by the applicant while serving 

as an impartial arbitrator of record 

selected by mutual agreement of the 

parties to labor relations disputes 

arising under collective bargaining 

agreements, or by direct designation by 

an administrative agency, or 

(2) Successfully complete the FMCS 

labor arbitrator training course and 

either submit one award as described 

above or complete an apprenticeship 

that meets specifications that FMCS 

may, in its discretion, provide. 

Applicants must also submit 

information demonstrating extensive 

and recent experience in collective 

bargaining, including at least the 

position or title held, duties or 

responsibilities, the name and location 

of the company or organization, and the 

dates of employment. 

(c) Advocacy. Any person who at the 

time of application is an advocate, as 

defined in paragraph (c)(1) of this 

section, must agree to cease such 

activity before being recommended for 

listing on the Roster by the Board. 

Except in the case of persons listed on 

the Roster as advocates before 

November 17, 1976, any person who did 

not divulge his or her advocacy at the 

time of listing or who becomes an 

advocate while listed on the Roster and 

who did not request to be placed on 

inactive status pursuant to Sec. 1404.6 

prior to becoming an advocate, shall be 

recommended for removal by the Board 

after the fact of advocacy is revealed. 

(1) Definition of Advocacy. An 

advocate is a person who represents 

employers, labor organizations, or 

individuals as an employee, attorney, or 

consultant, in matters of labor relations 

or employment relations, including but 

not limited to the subjects of union 

representation and recognition matters, 

collective bargaining, arbitration, unfair 

labor practices, equal employment 

opportunity, and other areas generally 

recognized as constituting labor or 

employment relations. The definition 

includes representatives of employers or 

employees in individual cases or 

controversies involving worker’s 

compensation, occupational health or 

safety, minimum wage, or other labor 

standards matters. 

(2) This definition of advocate also 

includes a person who is directly or 

indirectly associated with an advocate 

in a business or professional 

relationship as, for example, partners or 

employees of a law firm. Individuals 

engaged only in joint education or 

training or other non-adversarial 

activities will not be deemed to be 

advocates. 

(d) Removal from the Roster shall be 

by decision of the Director of FMCS 

based upon the recommendations of the 

Board or upon the Director’s own 

initiative. The Board may recommend 

for removal, and the Director may 

remove, any arbitrator listed on the 

Roster for violation of this part or of the 

Code. FMCS will provide to the affected 

arbitrator written notice of removal from 

the Roster. Complaints about arbitrators 

should be in writing and sent to the 

Director of OA. The complaint should 

cite any specific section(s) of the Code 

or the FMCS rule the arbitrator has 

allegedly violated. The following 

criteria shall be a basis for the Board to 

recommend and/or the Director to 

initiate an arbitrator’s removal from the 

Roster: 

(1) No longer meets the criteria for 

admission; 

(2) Has become an advocate as 

defined in paragraph (c) of this section; 

(3) Has been repeatedly or flagrantly 

in violation of one or more provisions 

of this Part; 

(4) Has refused to make reasonable 

and periodic reports in a timely manner 

to FMCS, as required in subpart C of 

this part, concerning activities 

pertaining to arbitration; 

(5) Has been the subject of a 

complaint by a party who uses FMCS 

services, or engages in conduct 

inappropriate for an arbitrator which 

otherwise comes to the attention of 

FMCS, and the Board, after appropriate 

inquiry, concludes that cause for 

removal has been shown; or 

(6) Has been in an inactive status 

pursuant to § 1404.6 for longer than two 

years and has not paid the annual listing 

fee. 

(e) Procedure for Removal. Prior to 

any recommendation by the Board to 

remove an arbitrator from the Roster, the 

Board shall conduct an inquiry into the 

facts of any such recommended 

removal. When the Board recommends 

removal of an arbitrator, it shall send 

the arbitrator a written notice. This 

notice shall inform the arbitrator of the 

Board’s recommendation and the basis 

for it, and that he or she has 60 days 

from the date of such notice to submit 

a written response or information 

showing why the arbitrator should not 

be removed. When the Director removes 

an arbitrator from the Roster, he or she 

shall inform the arbitrator of this in 

writing, stating the effective date of the 

removal and the length of time of the 

removal if it is not indefinite. An 

arbitrator so removed may seek 

reinstatement to the Roster by making 

written application to the Director no 

earlier than two years after the effective 

date of his or her removal. 

(f) Suspension. The Director of OA 

may suspend, for a period not to exceed 

180 days, any arbitrator listed on the 

Roster based on any of the criteria in 

paragraph (d) of this section. Arbitrators 

shall be promptly notified of a 

suspension. The arbitrator may appeal a 

suspension to the Board, which shall 

make a recommendation to the Director 

of FMCS. The decision of the Director 

of FMCS shall constitute the final action 

of the agency. 

§ 1404.6 Inactive status. 

(a) An arbitrator on the Roster who 

continues to meet the criteria for listing 

on the Roster may request that he or she 


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be put in an inactive status on a 

temporary basis. 

(b) Arbitrators whose schedules do 

not permit cases to be heard within six 

months of assignment must make 

themselves inactive temporarily until 

their caseload permits the earlier 

scheduling of cases. 

(c) An arbitrator can remain on 

inactive status without paying any 

annual listing fee for a period of two 

years. If an arbitrator is on inactive 

status for longer than two (2) years, the 

arbitrator will be removed from the 

Roster unless the arbitrator pays the 

annual listing fee. 

§ 1404.7 Listing fee. 

All arbitrators will be required to pay 

an annual fee for listing on the Roster, 

as set forth in the appendix to this part. 

Subpart C—Procedures for Arbitration 

Services 

§ 1404.8 Freedom of choice. 

Nothing contained in this part should 

be construed to limit the rights of 

parties who use FMCS arbitration 

services to jointly select any arbitrator 

or arbitration procedure acceptable to 

them. Once a request is made to OA, all 

parties are subject to the procedures 

contained in this part. 

§ 1404.9 Procedures for requesting 

arbitration lists and panels. 

(a) The OA has been delegated the 

responsibility for administering all 

requests for labor arbitration services. 

Requests must be made online at 

fmcs.gov/services/arbitration/ 

requesting-a-panel/, or via email 

attaching a completed Form R–43 

addressed to arbitration@fmcs.gov. 

(b) Upon request, OA will refer a 

randomly selected panel of seven 

arbitrators to parties to an agreement to 

arbitrate or engage in fact-finding, or 

where labor arbitration or fact-finding 

may be provided by statute. A 

biographical sketch will be provided for 

each member of the panel. This sketch 

states the background, qualifications, 

experience, and all fees as furnished to 

OA by the arbitrator. The parties are 

encouraged to make joint requests. 

However, a panel request, whether joint 

or unilateral, will be honored. Requests 

for a panel of other than seven (7) 

names, for a direct appointment of an 

arbitrator, and/or for special 

qualifications or other service will not 

be honored unless jointly submitted or 

authorized by both parties pursuant to 

mutual agreement. The issuance of a 

panel—in response to either joint or 

unilateral request—is nothing more than 

a response to a request. Neither issuance 

of a panel nor appointment of an 

arbitrator signifies the adoption of any 

position by FMCS regarding the status 

of an arbitration agreement, arbitrability 

of any dispute, or the terms of the 

parties’ contract. 

(c) FMCS has no power to: 

(1) Compel parties to appear before an 

arbitrator; 

(2) Enforce an agreement to arbitrate; 

(3) Compel parties to arbitrate any 

issue; 

(4) Influence, alter, or set aside 

decisions of arbitrators on the Roster; or 

(5) Compel, deny, or modify payment 

of compensation to an arbitrator. 

(d) OA may decline to submit a panel 

or to make an appointment of an 

arbitrator if the request submitted is 

overly burdensome or otherwise 

impracticable. OA, in such 

circumstances, may refer the parties to 

an FMCS mediator to help in the design 

of an alternative solution. OA may also 

decline to service any request from a 

party based on the party’s prior nonpayment of arbitrator fees or other 

behavior that constrains the spirit or 

operation of the arbitration process. 

(e) Panel requests that contain certain 

special requirements not found among 

the selections online, cannot be 

processed via the agency’s internet 

system; instead, parties must submit the 

pdf version of the R–43 form via email 

to OA and specify the additional 

requirements agreed to by both parties. 

(f) As an alternative to a panel of 

arbitrators, OA will, upon written 

request, submit a list of arbitrators and 

their biographical sketches from a 

designated geographical area; the parties 

may then select and deal directly with 

an arbitrator of their choice, with no 

further involvement of FMCS with the 

parties or the arbitrator, and no assigned 

case number. The parties may also 

request FMCS to make a direct 

appointment of their selection. In such 

a situation, a case number will be 

assigned. 

(g) OA will charge a fee for all 

requests for lists, panels, and other 

major services. Payments for these 

services must be received with the 

request for services before the service is 

delivered and may be paid by either 

labor or management or both. A 

schedule of fees is listed in the 

appendix to this part. 

§ 1404.10 Arbitrability. 

OA will not decide the merits of a 

claim by either party that a dispute is 

not subject to arbitration. 

§ 1404.11 Nominations of arbitrators. 

(a) All panels submitted to the parties 

by OA, and all letters issued by OA 

making a direct appointment, will have 

an assigned FMCS case number. All 

future communications with OA should 

refer to this case number. 

(b) OA will provide a randomly 

selected panel of arbitrators located in 

geographical areas in proximity of the 

hearing site, as specified in the request. 

The parties may jointly request special 

qualification of arbitrators experienced 

in certain issues or industries or that 

possess certain backgrounds, or a panel 

with no geographic restrictions within 

the U.S. OA has no obligation to put an 

individual on any given panel or on a 

minimum number of panels in any fixed 

period. If at any time both parties 

request that a name or names be 

included, or omitted, from a panel, such 

name or names will be included, or 

omitted, unless the number of names is 

excessive. These inclusions/exclusions 

may not discriminate against anyone 

because of age, race, color, gender, 

national origin, disability, genetic 

information, or religion. 

(c) If the parties do not agree on an 

arbitrator from the first panel, OA will 

furnish up to five additional panels to 

the parties upon joint request, or upon 

a unilateral request if authorized by the 

applicable collective bargaining 

agreement, and payment of additional 

fees. 

§ 1404.12 Selection by parties and 

appointment of arbitrators. 

(a) After receiving a panel of names, 

the parties must notify OA of their 

selection of an arbitrator or of the 

decision not to proceed with arbitration. 

Upon notification of the selection of an 

arbitrator, OA will make a formal 

appointment of the arbitrator. The 

arbitrator, upon notification of 

appointment, shall communicate with 

the parties within 14 days to arrange for 

preliminary matters, such as the date 

and place of hearing. Should an 

arbitrator be notified directly by the 

parties that he or she has been selected, 

the arbitrator must promptly notify OA 

of the selection. The arbitrator must 

provide OA with the FMCS case number 

and other pertinent information for OA 

to make an appointment. A pattern of 

failure by an arbitrator to notify FMCS 

of a selection in an FMCS case may 

result in suspension or removal from the 

Roster. If the parties settle a case prior 

to the hearing, the parties must inform 

the arbitrator as well as OA. Consistent 

failure to follow these procedures may 

lead to a denial of future OA services. 

(b) Where the parties’ collective 

bargaining agreement permits each party 

to separately notify OA of its ranked 

order of preference, or is silent on the 

manner of selecting arbitrators, FMCS 

will ask each party to advise OA of its 


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order of preference by numbering each 

name on the panel and submitting the 

numbered list in writing to OA. Upon 

receiving the rank order from one party, 

OA will notify the other party that it has 

fourteen (14) days in which to submit its 

selections. Where both parties respond, 

the name that has the lowest combined 

number will be appointed. If the other 

party fails to respond, the first party’s 

choice will be honored. 

(c) OA will make a direct 

appointment of an arbitrator only upon 

joint request or as otherwise provided 

by this Part. 

§ 1404.13 Conduct of hearings. 

All proceedings conducted by the 

arbitrators shall conform to the 

contractual obligations of the parties, 

and to the Code. The arbitrator shall 

comply with § 1404.4(b). The conduct of 

the arbitration proceeding is under the 

arbitrator’s jurisdiction and control, and 

the arbitrator’s decision shall be based 

upon the evidence and testimony 

presented at the hearing or otherwise 

incorporated in the record of the 

proceeding. The arbitrator may, unless 

prohibited by law, proceed in the 

absence of any party who, after due 

notice, fails to be present or to obtain a 

postponement. An award rendered in an 

ex parte proceeding of this nature must 

be based upon evidence presented to the 

arbitrator. 

§ 1404.14 Decision and award. 

(a) Arbitrators shall make awards no 

later than 60 days from the date of the 

closing of the record, unless otherwise 

agreed upon by the parties or specified 

by the collective bargaining agreement 

or law. However, failure to meet the 60- 

day deadline will not invalidate the 

process or award. A failure to render 

timely awards reflects upon the 

performance of an arbitrator and may 

lead to removal from the FMCS Roster. 

(b) The parties should inform OA 

whenever a decision is delayed. The 

arbitrator shall promptly notify OA if 

and when the arbitrator: 

(1) Cannot schedule or hear a case, 

and/or render a decision promptly and 

in accordance with time limits 

established in this part, or 

(2) Learns a dispute has been settled 

by the parties prior to the decision. 

(c) Within 15 days after an award and/ 

or final invoice has been submitted to 

the parties, the arbitrator shall submit 

an online Arbitrator’s Report and Fee 

Statement (Form R–19) to OA showing 

a breakdown of the fee and expense 

charges. 

(d) While FMCS encourages the 

publication of arbitration awards, 

arbitrators must not publicize awards 

without the express consent of the 

parties in conformance with the Code. 

§ 1404.15 Fees and charges of arbitrators. 

(a) Fees to Parties. Prior to 

appointment, the parties should be 

aware of all significant aspects of the 

bases for an arbitrator’s fees and 

expenses. Each arbitrator’s biographical 

sketch shall include a statement of the 

bases for the arbitrator’s fees and 

expenses, which shall conform to this 

part and the Code. The parties and the 

arbitrator shall be bound by the 

arbitrator’s statement of the bases for 

fees and expenses in the biographical 

sketch for two years from the date of 

appointment unless they mutually agree 

otherwise in writing. Arbitrators listed 

on the Roster may change the bases for 

their fees and expenses for future 

appointments if they provide them in 

writing to OA at least 30 days in 

advance. 

(b) Two or more Addresses. 

Arbitrators with more than one business 

address must bill the parties for 

expenses from the least expensive 

business address to the hearing site. 

(c) Additional Administrative Fee. In 

cases involving unusual amounts of 

time and expense relative to the prehearing and post-hearing administration 

of a particular case, the arbitrator may 

charge an administrative fee. This fee 

shall be disclosed to the parties as soon 

as it is foreseeable by the arbitrator. 

(d) Fee Disputes. When a party 

believes the arbitrator has not followed 

the requirements of this Part, it should 

promptly notify OA, which may bring 

any complaint concerning the fees 

charged by an arbitrator to the attention 

of the Board for consideration. 

Complaints by arbitrators concerning 

non-payment of fees by a party may lead 

to the denial of services or other actions 

by OA. 

§ 1404.16 Reports and biographical 

sketches. 

(a) Arbitrators listed on the Roster 

shall execute and return all documents, 

forms and reports required by OA and 

be responsible for updating their 

account and bio information online, 

including changes of address, telephone 

number, and availability. They must 

also furnish to OA the contact 

information for a person they know well 

whom OA may contact if unable to 

reach the arbitrator, and who has agreed 

to contact OA if the arbitrator has 

become incapacitated or deceased. 

Arbitrators must contact OA directly 

when they engage, or are accused of 

engaging, in any business or other 

connection or relationship involving 

labor or employment relations and/or 

which creates or gives the appearance of 

advocacy as defined in § 1404.5(c)(1). 

(b) OA reserves the right to decide 

and approve the format and content of 

biographical sketches. 

Subpart D—Expedited Arbitration 

§ 1404.17 Policy. 

In an effort to reduce the time and 

expense of some grievance arbitrations, 

FMCS offers expedited procedures 

where the parties agree on a streamlined 

process with short deadlines. Parties 

may also agree on their own procedures 

if it is practicable for FMCS. 

§ 1404.18 Procedures for requesting 

expedited panels. 

(a) With the exception of the specific 

changes noted in this Subpart, all FMCS 

rules and regulations governing its 

arbitration services shall apply to 

Expedited Arbitration. 

(b) Upon receipt of a joint Request for 

Arbitration Panel (Form R–43) 

indicating that both parties desire 

expedited services, OA will refer a 

panel of arbitrators which shall be valid 

for up to 30 days. Only one panel will 

be submitted per case. If the parties are 

unable to mutually agree upon an 

arbitrator or if prioritized selections are 

not received from both parties within 30 

days, OA will make a direct 

appointment of an arbitrator not on the 

original panel. 

(c) If the parties mutually select an 

arbitrator, but the arbitrator is not 

available, the parties may select a 

second name from the same panel or OA 

will make a direct appointment of 

another arbitrator not listed on the 

original panel. 

§ 1404.19 Arbitration process. 

(a) Once notified of the expedited case 

appointment by OA, the arbitrator must 

contact the parties within seven (7) 

calendar days. 

(b) The parties and the arbitrator must 

attempt to schedule a hearing within 30 

days of the appointment date. 

(c) Absent mutual agreement, all 

hearings will be concluded within one 

day. No transcripts of the proceedings 

will be made and the filing of posthearing briefs will not be allowed. 

(d) All awards must be completed 

within seven (7) working days from the 

hearing. These awards are expected to 

be brief and concise, and to not require 

extensive written opinion or research 

time. 

Appendix to 29 CFR Part 1404— 

Arbitration Policy; Schedule of Fees 

Annual listing fee for arbitrators who have 

completed less than 5 years on the Roster: 


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Federal Register / Vol. 84, No. 21 / Thursday, January 31, 2019 / Proposed Rules 619 

$150 for the first address; $50 for each 

additional address. 

Annual listing fee for arbitrators who have 

completed 5 or more years on the Roster: 

$250 for the first address; $100 for each 

additional address. 

Request for panel of arbitrators processed 

by FMCS staff: $70.00. 

Request for panel of arbitrators on-line: 

$35.00. 

Direct appointment of an arbitrator when a 

panel is not used: $30.00 per appointment. 

List and biographic sketches of arbitrators 

in a specific area: $35.00 per request plus 

$.25 per page. 

Dated: December 18, 2018. 

Jeannette Walters-Marquez, 

Attorney-Advisor. 

[FR Doc. 2018–27759 Filed 1–30–19; 8:45 am] 

BILLING CODE P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 165 

[Docket Number USCG–2018–1067] 

RIN 1625–AA00 

Safety Zone: Cape Fear River, 

Wilmington, NC 

AGENCY: Coast Guard, DHS. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: The Coast Guard proposes to 

establish two temporary safety zones on 

the navigable waters of the Cape Fear 

River in Brunswick County and New 

Hanover County, North Carolina. These 

temporary safety zones are intended to 

restrict vessel traffic on the Cape Fear 

River while a vessel transports and 

offloads one new Post-Panamax 

container crane to the North Carolina 

State Port in Wilmington, North 

Carolina. The first temporary safety 

zone will be enforced for one day during 

vessel transit from March 20 through 

April 15, 2019, and the second 

temporary safety zone for offload will be 

enforced for one day within five days 

after transit. This action is intended to 

restrict vessel traffic on the Cape Fear 

River to protect mariners and vessels 

from the hazards associated with 

transporting and offloading the 

assembled container crane. This 

proposed rulemaking would prohibit 

vessels or persons from being in the 

safety zones unless specifically 

authorized by the Captain of the Port 

(COTP) North Carolina or a designated 

representative. We invite your 

comments on this proposed rulemaking. 

DATES: Comments and related material 

must be received by the Coast Guard on 

or before March 4, 2019. 

ADDRESSES: You may submit comments 

identified by docket number USCG– 

2018–1067 using the Federal 

eRulemaking Portal at https://

www.regulations.gov. See the ‘‘Public 

Participation and Request for 

Comments’’ portion of the 

SUPPLEMENTARY INFORMATION section for 

further instructions on submitting 

comments. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions about this proposed 

rulemaking, contact Petty Officer 

Matthew Tyson, Waterways 

Management Division, U.S. Coast Guard 

Sector North Carolina, Wilmington, NC; 

telephone: 910–772–2221, email: 

Matthew.I.Tyson@uscg.mil. 

SUPPLEMENTARY INFORMATION: 

I. Table of Abbreviations 

CFR Code of Federal Regulations 

DHS Department of Homeland Security 

FR Federal Register 

NPRM Notice of proposed rulemaking 

§ Section 

U.S.C. United States Code 

COTP Captain of the Port 

II. Background, Purpose, and Legal 

Basis 

On November 14, 2018, the North 

Carolina State Port Authority notified 

the Coast Guard that it will be 

transporting one pre-assembled PostPanamax container crane up the Cape 

Fear River to the North Carolina State 

Port in Wilmington, North Carolina, and 

offloading it. The planned transit date is 

March 25, 2019, and the planned offload 

date is March 27, 2019. Due to crane 

preconstruction and vessel travel times, 

the crane could transit as early as March 

20, 2019, and as late as April 15, 2019. 

The transit path will be from the Cape 

Fear River Entrance Buoy, north through 

the Cape Fear River to the turning basin, 

and ending at the North Carolina State 

Port in Wilmington, North Carolina. The 

planned offload date is two days after 

transit, but weather conditions may 

change the offload date to any day 

within five days after transit. The 

Captain of the Port (COTP) North 

Carolina has determined that potential 

safety hazards associated with 

transporting and offloading the 

container crane would be a concern for 

anyone transiting the Cape Fear River. 

The purpose of this rule is to protect 

persons, vessels, and the marine 

environment on the navigable waters on 

the Cape Fear River during the transport 

and offload of the container crane. The 

Coast Guard proposes this rulemaking 

under authority in 33 U.S.C. 1231. 

III. Discussion of Proposed Rule 

The COTP proposes to establish a 

safety zone on a portion of the Cape 

Fear River to be enforced during the 

transit of a vessel transporting one preassembled Post-Panamax container 

crane up the Cape Fear River from 

March 20 through April 15, 2019, and 

offloading the container within five 

days after transit. The currently 

scheduled transit date is March 25, 

2019, and the currently scheduled 

offload date is March 27, 2019. The 

transport is expected to take between 

five and seven hours and the offload is 

expected to take up to five hours. Exact 

enforcement times will be based on tide 

schedules, anticipated sea conditions, 

and weather conditions, therefore the 

exact enforcement times will be 

announced by broadcast to mariners at 

least two days prior to the transit. The 

safety zone for the transit will include 

all navigable waters of the Cape Fear 

River from the International Regulations 

for Prevention of Collisions at Sea, 1972 

(COLREGS, 72) Demarcation Line drawn 

from Oak Island Light House to Bald 

Head Island Abandon Light House 

noted on NOAA chart 11537 and 

proceeding north up the Cape Fear River 

from shore to shore to the Cape Fear 

Memorial Bridge, a length of 

approximately 26 miles. This portion of 

the safety zone will be enforced until 

the vessel transporting the crane has 

been safely moored at North Carolina 

State Port in Wilmington, North 

Carolina. The safety zone for the offload 

will include all navigable waters of the 

Cape Fear River within 200 yards of the 

transport vessel while it is moored. The 

duration of this zone is intended to 

protect persons, vessels, and the marine 

environment on the navigable waters of 

the Cape Fear River during the transport 

and offload of the container crane. No 

vessel or person will be permitted to 

enter the safety zone unless specifically 

authorized by the Captain of the Port 

North Carolina or a designated 

representative. There will be a predesignated safety vessel ahead of the 

transport vessel to monitor the flow of 

traffic and inform mariners that the 

container crane transit is in progress. 

Vessels that are less than 40 feet in 

height and will not impede the transport 

vessel may request permission to pass 

through the safety zone or remain in 

place as the transport vessel passes. The 

Fort Fisher and Bald Head ferries will 

be able to operate on their normal 

schedule as long as the scheduled 

transit will not come within one mile of 

the transport vessel and they receive 

permission from the Captain of the Port 

North Carolina or a designated 


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