Federal Register / Vol. 88, No. 164 / Friday, August 25, 2023 / Rules and Regulations 58075 

TABLE 6 TO PARAGRAPH (b)(5)—Continued 

Title Number 

Legal Adviser Attorney Employment Application Records .................................................................................................................... STATE–20. 

Office of Inspector General Investigation Management System ........................................................................................................... STATE–53. 

Overseas Citizens Services Records .................................................................................................................................................... STATE–25. 

Personality Cross-Reference Index to the Secretariat Automated Data Index ..................................................................................... STATE–28. 

Records Maintained by the Office of Civil Rights .................................................................................................................................. STATE–09. 

Records of the Office of White House Liaison ...................................................................................................................................... STATE–34. 

Risk Analysis and Management Records .............................................................................................................................................. STATE–78. 

Rover Records ....................................................................................................................................................................................... STATE–41. 

Security Records .................................................................................................................................................................................... STATE–36. 

Senior Personnel Appointments Records .............................................................................................................................................. STATE–47. 

(6) Exempt under 5 U.S.C. 552a(k)(6). 

Records contained within the following 

systems of records are exempt under 

this section to the extent that they 

consist of testing or examination 

material used solely to determine 

individual qualifications for 

appointment or promotion in the 

Federal service the disclosure of which 

would compromise the objectivity or 

fairness of the testing or examination 

process. 

TABLE 7 TO PARAGRAPH (b)(6) 

Title Number 

Foreign Service Institute Records .......................................................................................................................................................... STATE–14. 

Human Resources Records ................................................................................................................................................................... STATE–31. 

Information Access Programs Records ................................................................................................................................................. STATE–35. 

Records Maintained by the Office of Civil Rights .................................................................................................................................. STATE–09. 

Security Records .................................................................................................................................................................................... STATE–36. 

(7) Exempt under 5 U.S.C. 552a(k)(7). 

Records contained within the following 

systems of records are exempt under 

this section to the extent that they 

consist of evaluation material used to 

determine potential for promotion in the 

armed services, but only to the extent 

that such disclosure would reveal the 

identity of a confidential informant. 

TABLE 8 TO PARAGRAPH (b)(7) 

Title Number 

Human Resources Records ................................................................................................................................................................... STATE–31. 

Information Access Programs Records ................................................................................................................................................. STATE–35. 

Overseas Citizens Services Records .................................................................................................................................................... STATE–25. 

Personality Cross-Reference Index to the Secretariat Automated Data Index ..................................................................................... STATE–28. 

Personality Index to the Central Foreign Policy Records ...................................................................................................................... STATE–29. 

Security Records .................................................................................................................................................................................... STATE–36. 

Eric F. Stein, 

Deputy Assistant Secretary, Global 

Information Services (A/GIS), Department of 

State. 

[FR Doc. 2023–18143 Filed 8–24–23; 8:45 am] 

BILLING CODE 4710–AD–P 

NATIONAL LABOR RELATIONS 

BOARD 

29 CFR Part 102 

RIN 3142–AA12 

Representation Case Procedures 

AGENCY: National Labor Relations 

Board. 

ACTION: Final rule; stay of effective date. 

SUMMARY: On March 10, 2023, the 

National Labor Relations Board (Board) 

stayed two provisions of its 2019 final 

rule (‘‘2019 Final Rule’’) amending its 

representation case procedures. The two 

provisions, which have never been in 

effect, were stayed until September 10, 

2023 to account for new court decisions 

and because the Board was considering 

whether to revise or rescind the 2019 

Final Rule, including potential revisions 

to the two provisions. In a rule that 

published in this edition of the Federal 

Register, the Board rescinds those 

provisions, among other changes. In 

light the new rule, and to ensure the two 

provisions do not go into effect for only 

a short period of time, the September 

10, 2023 stay of the two provisions is 

extended to December 26, 2023, the date 

on which the rule repealing the two 

provisions is effective. 

DATES: As of August 25, 2023, the 

amendments to 29 CFR 102.64(a) and 29 

CFR 102.67(b) in the final rule that 

published at 84 FR 69524, on December 

18, 2019, and delayed at 85 FR 17500 

(March 30, 2020) and 88 FR 14913 

(March 10, 2023), are stayed from 

September 10, 2023, until December 26, 

2023. 

FOR FURTHER INFORMATION CONTACT: 

Roxanne L. Rothschild, Executive 

Secretary, National Labor Relations 

Board, 1015 Half St. SE, Washington, 

DC 20570–0001, (202) 273–2940 (this is 

not a toll-free number), 1–866–315–6572 

(TTY/TDD). 

SUPPLEMENTARY INFORMATION: On 

December 18, 2019, the Board published 

the 2019 Final Rule amending various 

aspects of its representation case 

procedures. Representation-Case 

Procedures, 84 FR 69524 (Dec. 18, 

2019). The Board published the 2019 

Final Rule as ‘‘a procedural rule which 

is exempt from notice and public 


ddrumheller on DSK120RN23PROD with RULES1
58076 Federal Register / Vol. 88, No. 164 / Friday, August 25, 2023 / Rules and Regulations 

1 84 FR at 69593. 

2 84 FR at 69595. 

comment . . . as a rule of ‘agency 

organization, procedure, or practice.’ ’’ 

Id. at 69587. On March 30, 2020, the 

Board delayed the effective date of the 

2019 Final Rule to May 31, 2020. 

Representation Case Procedures, 85 FR 

17500 (Mar. 30, 2020). 

On May 30, 2020, the United States 

District Court for the District of 

Columbia issued an order in AFL–CIO v. 

NLRB, Civ. No. 20–cv–0675, vacating 

five provisions of the 2019 Final Rule 

and enjoining their implementation. 466 

F. Supp. 3d 68 (D.D.C. 2020). The 

District Court concluded that each of the 

five provisions was substantive, not 

procedural, in nature, and that the 

Board therefore violated the 

Administrative Procedure Act by failing 

to use notice and comment rulemaking. 

Id. at 92. 

On January 17, 2023, the United 

States Court of Appeals for the District 

of Columbia Circuit issued a decision 

and order reversing the District Court as 

to two of the five provisions, agreeing 

with the Board that those provisions 

were procedural in nature and not 

subject to notice and comment 

rulemaking. AFL–CIO v. NLRB, 57 F. 4th 

1023, 1043–1046 (D.C. Cir. 2023). The 

two provisions are: (1) an amendment to 

29 CFR 102.64(a) allowing the parties to 

litigate disputes over unit scope and 

voter eligibility prior to the election; 1

and (2) an amendment to 29 CFR 

102.67(b) instructing Regional Directors 

not to schedule elections before the 20th 

business day after the date of the 

direction of election.2 The D.C. Circuit 

remanded the case to the District Court 

to consider two counts in the complaint 

that challenge those two provisions and 

that remain viable in light of its 

decision. 

Due to the District Court’s injunction, 

these two provisions had never taken 

effect. Accordingly, before the D.C. 

Circuit’s mandate issued on March 13, 

2023 and the District Court’s injunction 

was lifted, the Board changed the 

effective date of the two provisions from 

the original May 31, 2020 effective date 

to September 10, 2023, approximately 

six months from the D.C. Circuit’s 

mandate. Representation Case 

Procedures, 88 FR 14913 (Mar. 10, 

2023). The Board determined that a 

delayed effective date was necessary 

and appropriate, in part, because it was 

considering whether to revise or repeal 

the 2019 Final Rule, including potential 

revisions to the two provisions. Id. 

In a final rule published in this issue 

of the Federal Register, the Board has 

decided to repeal those two provisions, 

as well as other provisions in the 2019 

Final Rule. In light of today’s rule, the 

Board has decided to stay the effective 

date of the two provisions from 

September 10, 2023 to December 26, 

2023, the effective date of the rule 

repealing the two provisions. A further 

stay of these provisions will avoid the 

possible waste of administrative 

resources and public uncertainty if the 

provisions were to go into effect only for 

a short period of time before their 

repeal. Because the two provisions have 

never been in effect, the amendment to 

their effective date merely extends the 

status quo. 

This change in effective date is 

published as a final rule. The Board 

considers this rule to be a procedural 

rule that is exempt from notice and 

public comment, pursuant to 5 U.S.C. 

553(b)(A), because it concerns a rule of 

‘‘agency organization, procedure, or 

practice.’’ 

Dissenting Opinion of Member Kaplan 

Today, my colleagues once again stay 

the implementation of the unit-scopeand-eligibility and 20-days rules, both of 

which were part of the 2019 Final Rule. 

They do so because, in a companion 

final rule issued today, they have 

decided to repeal these two provisions, 

along with other provisions of the 2019 

Final Rule. I disagree with my 

colleagues’ decision to rescind these 

two provisions and with their 

concomitant decision to stay 

implementation for the reasons stated in 

my dissent to their earlier stay, 

Representation Case Procedures, 88 FR 

14913, 14914–14916 (March 10, 2023), 

and my dissent to the companion final 

rule issued today. 

Dated: August 18, 2023. 

Roxanne L. Rothschild, 

Executive Secretary. 

[FR Doc. 2023–18130 Filed 8–24–23; 8:45 am] 

BILLING CODE 7545–01–P 

NATIONAL LABOR RELATIONS 

BOARD 

29 CFR Part 102 

RIN 3142–AA18 

Representation-Case Procedures 

AGENCY: National Labor Relations 

Board. 

ACTION: Direct final rule. 

SUMMARY: The National Labor Relations 

Board has decided to issue this final 

rule for the purpose of carrying out the 

National Labor Relations Act, which 

protects the exercise by workers of full 

freedom of association, selforganization, and designation of 

representatives of their own choosing 

for the purpose of negotiating the terms 

and conditions of their employment or 

other mutual aid or protection. While 

retaining the essentials of existing 

representation case procedures, this rule 

substantially rescinds the amendments 

made by a rule the Board promulgated 

in 2019 (which has been the subject of 

ongoing litigation) and thereby 

substantially returns representation case 

procedures to those that existed 

following the Board’s promulgation of a 

rule concerning representation case 

procedures in 2014 (which was 

uniformly upheld by the federal courts). 

By doing so, this rule effectuates what 

the Board deems to be appropriate 

policy choices that enhance the fair, 

efficient, and expeditious resolution of 

representation cases. 

DATES: This rule is effective December 

26, 2023. 

FOR FURTHER INFORMATION CONTACT: 

Roxanne L. Rothschild, Executive 

Secretary, National Labor Relations 

Board, 1015 Half Street SE, Washington, 

DC 20570–0001, (202) 273–2917 (this is 

not a toll-free number), 1–866–315–6572 

(TTY/TDD). 

SUPPLEMENTARY INFORMATION: 

I. Background on the Rulemaking 

The National Labor Relations Board 

(the Board) administers the National 

Labor Relations Act (the Act) which, 

among other things, governs the 

formation of collective-bargaining 

relationships between employers and 

groups of employees in the private 

sector. Section 7 of the Act, 29 U.S.C. 

157, gives employees the right to 

bargain collectively through 

representatives of their own choosing 

and to refrain from such activity. 

When employees and employers are 

unable to agree whether employees 

should be represented for purposes of 

collective bargaining, Section 9 of the 

Act, 29 U.S.C. 159, gives the Board the 

authority to resolve the question of 

representation. The Supreme Court has 

recognized that ‘‘Congress has entrusted 

the Board with a wide degree of 

discretion in establishing the procedure 

and safeguards necessary to insure the 

fair and free choice of bargaining 

representatives by employees.’’ NLRB v. 

A.J. Tower Co., 329 U.S. 324, 330 (1946). 

‘‘The control of the election proceeding, 

and the determination of the steps 

necessary to conduct that election fairly 

were matters which Congress entrusted 

to the Board alone.’’ NLRB v. Waterman 

Steamship Corp., 309 U.S. 206, 226 

(1940); see Southern Steamship Co. v. 

NLRB, 316 U.S. 31, 37 (1942). 


ddrumheller on DSK120RN23PROD with RULES1