This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents.

Rules and Regulations Federal Register

62445 

Vol. 88, No. 175 

Tuesday, September 12, 2023 

FEDERAL LABOR RELATIONS 

AUTHORITY 

5 CFR Part 2424 

Negotiability Proceedings 

AGENCY: Federal Labor Relations 

Authority. 

ACTION: Final rule. 

SUMMARY: The Federal Labor Relations 

Authority (FLRA) is revising the 

regulations governing negotiability 

appeals to better ‘‘expedite 

proceedings,’’ consistent with 

Congress’s direction. The final rule is 

designed to benefit the FLRA’s parties 

by clarifying various matters and 

streamlining the adjudication process 

for negotiability appeals, resulting in 

more timely decisions. 

DATES: 

Effective Date: This rule is effective 

October 12, 2023. 

Applicability Date: This part applies 

to all petitions for review filed on or 

after October 12, 2023. 

FOR FURTHER INFORMATION CONTACT: 

Thomas Tso, Solicitor, at ttso@flra.gov 

or at (771) 444–5779. 

SUPPLEMENTARY INFORMATION: The FLRA 

proposed revisions to part 2424 of the 

Authority’s Regulations concerning 

negotiability proceedings. The proposed 

rule was published in the Federal 

Register, and public comments were 

solicited on the proposed changes (84 

FR 70439) (Dec. 23, 2019). After the 

initial public comment period closed, 

the FLRA reopened the comment period 

for an additional round of public 

feedback (85 FR 4913) (Jan. 28, 2020). 

(From this point forward, the printed 

statements at 84 FR 70439 and 85 FR 

4913 are collectively referred to as ‘‘the 

proposal notices.’’) Comments were 

received from unions, agencies, labormanagement practitioners, and other 

individuals. All timely comments have 

been considered prior to publishing the 

final rule, and virtually all comments, 

including all significant comments, are 

addressed with specificity below. 

Changes from the proposed rule are also 

discussed below, and where those 

changes relate to specific comments, the 

connection between the changes and the 

comments is noted. 

Significant Changes 

In §§ 2424.22 and 2424.25, the final 

rule changes the procedures through 

which an exclusive representative may 

divide or sever a proposal or provision 

into distinct parts, in order to seek 

separate negotiability determinations on 

particular matters standing alone. 

Section 2424.10 of the final rule does 

not remove references to the 

Collaboration and Alternative Dispute 

Resolution Program. Section 2424.21 of 

the final rule does not require an 

exclusive representative to file a 

petition for review within sixty days 

after the expiration of the deadline for 

an agency to respond to a request for a 

written allegation concerning the duty 

the bargain. Section 2424.22 of the final 

rule does not require an exclusive 

representative to respond, in a petition 

for review, to specific claims in an 

agency’s allegation concerning the duty 

to bargain or an agency head’s 

disapproval. Section 2424.26 of the final 

rule does not shorten the time limit for 

filing an agency’s reply from fifteen 

days to ten days. Section 2424.41 of the 

final rule does not require an exclusive 

representative to report to a Regional 

Director an agency’s failure to comply 

with a negotiability decision and order 

within thirty days after the expiration of 

the 60-day period for seeking judicial 

review. Unlike the potentially broad 

revisions contemplated in the proposal 

notices, the final rule leaves § 2424.50 of 

the Authority Regulations (concerning 

compelling need) mostly unchanged. 

Miscellaneous Comments and 

Responses 

Some of the comments responding to 

the proposal notices did not concern a 

specific section of the proposed rules. 

One commenter opposed any changes to 

existing negotiability procedures 

because, in the commenter’s view, the 

process could be streamlined by 

employing sufficient staff. As this 

comment was not germane to the 

proposed rule, it did not influence the 

final rule. 

The Office of Personnel Management 

(OPM) requested that the final rule 

include a provision requiring that, if a 

petition for review raises a negotiability 

dispute concerning a statute that OPM 

administers, an executive order that 

OPM administers, or a government-wide 

regulation that OPM promulgated, then 

the Authority must formally notify OPM 

and provide OPM an opportunity to 

intervene in the case. 

Section 7105(i) of the Federal Service 

Labor-Management Relations Statute 

(the Statute) states that ‘‘the Authority 

may request from the Director of [OPM] 

an advisory opinion concerning the 

proper interpretation of rules, 

regulations, or policy directives issued 

by [OPM] in connection with any matter 

before the Authority.’’ 5 U.S.C. 7105(i) 

(emphasis added). Admittedly, Section 

7105(i) does not address the full scope 

of the matters raised in OPM’s 

comment—such as statutes or executive 

orders that OPM administers. However, 

regarding government-wide regulations 

that OPM issued, Section 7105(i) 

indicates that Congress did not think it 

necessary either to require the Authority 

to seek OPM’s views in every case, or 

to provide OPM an opportunity to 

intervene in cases. In addition, when 

Congress thought OPM should have the 

right to intervene in a particular class of 

civil-service cases—for example, certain 

cases before the Merit Systems 

Protection Board involving the 

‘‘interpretation or application of any 

civil[-]service law, rule, or regulation, 

under the jurisdiction of [OPM]’’— 

Congress provided for intervention in 

statutory text. 5 U.S.C. 7701(d)(1). 

Further, nothing in the Statute, 

including Section 7105(i), prevents the 

Authority from requesting an advisory 

opinion from OPM on statutes or 

executive orders that OPM administers, 

where such an opinion would aid the 

Authority in its decision making. 

Moreover, § 2429.9 of the Authority’s 

Regulations allows any interested 

person to petition for the opportunity to 

present views as amicus curiae in a 

particular case, and OPM may petition 

to present its views through that 

provision. 5 CFR 2429.9. 

For these reasons, the final rule does 

not include a provision concerning 

notification of, and intervention by, 

OPM in particular cases. 

Sectional Analyses, Comments, and 

Responses 

The regulatory analyses provided in 

the proposal notices about wording that 


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has not changed from the proposed rule 

to the final rule should be understood 

to apply to the unchanged portions of 

the final rule. Such previous analyses 

will not be repeated here, although they 

continue to apply. Further sectional 

analyses of the amendments and 

revisions to part 2424, Negotiability 

Proceedings—including public 

comments and responses to those 

comments—follow: 

Part 2424—Negotiability Proceedings 

Section 2424.1 

None of the public comments 

addressed § 2424.1. The final rule is the 

same as the proposed rule. 

Section 2424.2 

Comments and Responses 

One commenter stated that the 

sentence listing examples of bargaining 

obligation disputes should say that such 

disputes include, but may not be limited 

to, the specified examples. This 

requested change is unnecessary 

because the list of examples does not 

purport to be exhaustive. The same 

commenter asked that the examples be 

joined by ‘‘or’’ rather than ‘‘and.’’ The 

commenter correctly notes that each 

example is sufficient, on its own, to 

establish a bargaining obligation 

dispute. However, this requested change 

is unnecessary because each example is 

part of a group of similar terms, so using 

‘‘and’’ is appropriate. Therefore, these 

requested changes were not adopted. 

Another commenter requested that 

the examples of bargaining obligation 

disputes be expanded from the 

proposed rule so that the examples still 

included situations where parties 

disagree about whether a change to 

conditions of employment was de 

minimis. As discussed in connection 

with § 2424.2(a)(2) below, this requested 

change is incorporated into the final 

rule. 

A third commenter stated that it does 

not interpret the changes to the 

examples in this section to alter the 

legal definition of the defined terms. To 

the extent that the commenter means 

that the changes to examples are 

intended to better illustrate the existing 

definitions of these terms, rather than to 

change the operative definitions of the 

terms, the commenter is correct. This 

commenter also objected to adding 

executive orders to the examples of 

sources of negotiability disputes. As 

explained further below in connection 

with § 2424.2(c), executive orders are 

not included among the examples of 

sources of negotiability disputes in the 

final rule. This commenter also asked 

that, where government-wide rules or 

regulations are listed as sources of 

negotiability disputes, the rule be 

amended to acknowledge that 

government-wide rules or regulations 

can be contrary to statutory law. 

However, this requested change is 

unnecessary because it is irrelevant to 

the existence of a negotiability dispute. 

Regardless of whether a governmentwide rule or regulation is consistent 

with, or contrary to, a statute, a 

disagreement between parties about 

whether a proposal or provision is 

consistent with a government-wide rule 

or regulation will establish that a 

negotiability dispute exists. 

Further Analysis 

As in the proposed rule, § 2424.2(a) of 

the final rule clarifies the definition of 

a ‘‘bargaining obligation dispute.’’ 

However, in response to a comment 

seeking further examples, § 2424.2(a) of 

the final rule includes two additional 

examples, rather than (as in the 

proposed rule) one additional example. 

Specifically, § 2424.2(a)(2) of the final 

rule identifies, as examples of 

bargaining obligation disputes, 

disagreements concerning agency claims 

that bargaining is not required ‘‘because 

there has not been a change in 

bargaining-unit employees’ conditions 

of employment,’’ see, e.g., NFFE, 

IAMAW, Fed. Dist. 1, Fed. Loc. 1998, 69 

FLRA 586, 589 (2016) (analyzing 

agency’s contested claim that it made no 

changes to conditions of employment as 

a bargaining obligation dispute) 

(Member Pizzella concurring in part and 

dissenting in part on other grounds), as 

well as claims that bargaining is not 

required ‘‘because the effect of the 

change is de minimis,’’ e.g., AFGE, Loc. 

2139, Nat’l Council of Field Lab. Locs., 

61 FLRA 654, 656 (2006) (‘‘The claim 

that a change in employees’ conditions 

of employment is de minimis is a 

bargaining obligation dispute, rather 

than a negotiability dispute.’’). Section 

2424.2(a)(3) of the final rule is the same 

as the proposed rule and identifies, as 

an example of a bargaining obligation 

dispute, a disagreement about an agency 

claim that ‘‘[t]he exclusive 

representative is attempting to bargain 

at the wrong level of the agency.’’ 

Unlike the proposed rule, the final rule 

does not revise the text currently 

located at 5 CFR 2424.2(b). 

Section 2424.2(c) of the final rule 

differs from the proposed rule in three 

respects. First, whereas § 2424.2(c)(2) of 

the proposed rule identified, as an 

example of a negotiability dispute, a 

disagreement concerning whether a 

proposal or provision ‘‘[d]irectly affects 

bargaining-unit employees’ condition of 

employment,’’ § 2424.2(c)(2) of the final 

rule removes the word ‘‘[d]irectly.’’ The 

word ‘‘[d]irectly’’ was removed because 

a negotiability dispute exists when there 

is a disagreement about whether a 

proposal or provision has any effect on 

bargaining-unit employees’ conditions 

of employment—not only when there is 

disagreement about direct effects. See, 

e.g., NAGE, Loc. R1–144, 43 FLRA 1331, 

1333 (1992); id. at 1335 (agency argued 

that proposals did not concern 

conditions of employment of 

bargaining-unit employees), 1350–51 

(Authority found four proposals 

‘‘nonnegotiable’’ because they did not 

concern the conditions of employment 

of bargaining-unit employees). Second, 

unlike § 2424.2(c) of the proposed rule, 

§ 2424.2(c) of the final rule does not 

include executive orders among the 

examples of sources of negotiability 

disputes. However, the omission of this 

example does not prohibit parties from 

arguing that a proposal’s or provision’s 

inconsistency with an executive order 

gives rise to a negotiability dispute. 

Third, because the executive-order 

example was removed, § 2424.2(c)(7) of 

the proposed rule has become 

§ 2424.2(c)(6) of the final rule, and 

§ 2424.2(c)(8)(i) through (v) of the 

proposed rule have become 

§ 2424.2(c)(7)(i) through (v) of the final 

rule. The remaining changes to the text 

currently located at 5 CFR 2424.2(c) are 

the same in the final rule as in the 

proposed rule. 

Section 2424.2(e) and (f) are the same 

in the final rule as in the proposed rule. 

The proposal notices explained that, 

although the proposed rule contained 

revised wording that would 

‘‘[e]liminat[e] severance altogether,’’ 

‘‘the FLRA [wa]s also considering 

another possible option’’ that would not 

completely eliminate severance. 84 FR 

at 70439. Unlike the proposed rule, the 

final rule does not remove the existing 

definition of ‘‘[s]everance,’’ located at 5 

CFR 2424.2(h). Because the final rule 

does not remove the ‘‘[s]everance’’ 

definition, the final rule also does not 

redesignate the definition of ‘‘[w]ritten 

allegation concerning the duty to 

bargain’’ as § 2424.2(h)—which is a 

change from the proposed rule. Under 

the final rule, the definition of 

‘‘[w]ritten allegation concerning the 

duty to bargain’’ maintains its existing 

location at 5 CFR 2424.2(i). 

Section 2424.10 

Comments and Responses 

Three commenters opposed adding to 

this section new wording that specifies 

that Collaboration and Alternative 

Dispute Resolution (CADR) assistance is 

provided at the discretion of the 


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Authority. The final rule does not 

include the wording that assistance is 

provided ‘‘in the discretion of the 

Authority’’; however, the Authority 

disagrees with the commenters’ 

assertions that, as long as the parties 

agree to CADR assistance, the decision 

about whether a dispute enters the 

CADR Program should not be at the 

Authority’s discretion. For example, the 

Authority may not have resources 

available to provide CADR assistance 

every time it is requested. If the 

Authority declines to grant CADR 

assistance, that action in no way 

prevents parties from agreeing to seek 

alternative dispute resolution services 

from entities outside the FLRA—such as 

the Federal Mediation and Conciliation 

Service. 

One commenter appeared to believe 

that, under the proposed rule, after a 

petition for review had been filed, the 

Authority could require the parties to 

participate in alternative dispute 

resolution without their consent. To the 

contrary, CADR assistance will continue 

to require the consent of the parties. 

Another commenter expressed 

reservations about an addition in the 

proposed rule that stated that CADR 

assistance would be provided as 

resources permit. Because the FLRA is 

unable to offer any services beyond the 

capacity of its available resources, this 

wording remains part of the final rule, 

as discussed further below. 

A third commenter expressed 

disappointment that the proposed rule 

removed references to the CADR 

Program. As explained further below, 

the final rule does not remove those 

references. 

Further Analysis 

Unlike the proposed rule, the heading 

of § 2424.10 in the final rule will remain 

the same as the existing heading of 5 

CFR 2424.10. In another variance from 

the proposed rule, § 2424.10 of the final 

rule is amended to state that parties may 

contact either the CADR Program or the 

Office of Case Intake and Publication to 

seek CADR services. Updated phone 

numbers are added to the final rule. 

Further, whereas the proposed rule 

removed all direct references to CADR, 

§ 2424.10 of the final rule retains all of 

the direct references to CADR that 

currently appear in 5 CFR 2424.10. As 

in the proposed rule, § 2424.10 of the 

final rule clarifies that CADR 

representatives will attempt to assist 

parties to resolve their disputes ‘‘as 

resources permit.’’ 

Section 2424.11 

Comments and Responses 

Two commenters supported requiring 

that requests for allegations concerning 

the duty to bargain be in writing, and 

like the proposed rule, the final rule 

incorporates this requirement. 

OPM requested that this section be 

amended to state that any written 

agency responses to an exclusive 

representative’s proposals—including 

agency counterproposals—may contain 

an unrequested agency allegation 

concerning the duty the bargain. 

Because the existing wording does not 

limit the types of written sources that 

may contain an unrequested agency 

allegation concerning the duty to 

bargain, the requested change is 

unnecessary. Therefore, the final rule 

does not adopt that requested change. 

OPM also requested that this section 

be amended to specify that an agency 

allegation concerning the duty to 

bargain need contain only an assertion 

of nonnegotiability and the statutory 

basis, or other authority, supporting that 

assertion. OPM contended that the rule 

should make clear that no further detail 

is necessary to trigger the time limits for 

filing a petition for review under 

§ 2424.21. The existing wording at 5 

CFR 2424.11 does not specify the level 

of detail required to trigger the time 

limits in § 2424.21, except to say that 

agency allegations must be in writing 

and must concern the duty to bargain. 

The FLRA believes that case-by-case 

adjudication continues to provide a 

superior method for determining 

precisely when an agency allegation has 

triggered the time limits in § 2424.21, 

and the final rule has not adopted 

OPM’s suggested modification. 

Further Analysis 

The final rule is the same as the 

proposed rule. 

Section 2424.21 

Comments and Responses 

Six commenters addressed the change 

in the proposed rule that, if an agency 

fails to respond within ten days to an 

exclusive representative’s written 

request for a written agency allegation 

concerning the duty to bargain, then the 

exclusive representative may file a 

petition, but only within the next sixty 

days. One union commenter stated that 

the sixty-day timeline was adequate 

under these circumstances. Three 

agency commenters stated that imposing 

the sixty-day timeline would ensure that 

negotiability disputes did not linger 

longer than necessary. OPM requested 

that this deadline be shortened to thirty 

days. One union commenter opposed 

the sixty-day deadline because, 

according to the commenter, this change 

rewarded an agency’s failure to respond 

to a written request for an allegation of 

nonnegotiability by nevertheless 

imposing a deadline on the exclusive 

representative for filing a petition for 

review. As discussed further below, the 

final rule does not impose this sixty-day 

deadline because it is not clear that 

there is currently a problem with 

exclusive representatives waiting for 

unnecessarily lengthy periods of time to 

file petitions after requesting, but not 

receiving, written agency allegations. 

Two commenters expressed concern 

that an agency does not face adverse 

consequences for failing to provide a 

written allegation concerning the duty 

the bargain within ten days of the 

exclusive representative’s written 

request for such an allegation. One 

union commenter suggested that, to 

provide an adverse consequence for an 

agency in these circumstances, for each 

day that the agency’s requested 

allegation is late—that is, beyond the 

ten-day deadline for providing such an 

allegation—the exclusive representative 

should receive an additional day for 

filing its petition. This suggestion would 

violate Section 7117(c)(2) of the Statute, 

which requires a fifteen-day deadline 

for filing a petition for review after an 

agency alleges that the duty to bargain 

does not extend to any matter. 5 U.S.C. 

7117(c)(2). Thus, this suggestion has not 

been adopted. The same union 

commenter was also concerned that 

fifteen days would be inadequate for 

filing a petition that satisfies certain 

new content requirements that appeared 

in § 2424.22(d) of the proposed rule. As 

discussed later in connection with 

§ 2424.22(d), the proposed new content 

requirements are not part of the final 

rule, so this concern has been mooted. 

One commenter suggested that the 

Authority rewrite the section so that 

none of the deadlines depend on when 

the exclusive representative receives, or 

does not receive, written agency 

allegations. According to this 

commenter, the complexity of the 

section in distinguishing between 

responses or non-responses to written 

requests for allegations, solicited or 

unsolicited allegations, and written 

versus unwritten allegations creates 

unnecessary formality that will confuse 

many negotiators, who are often not 

lawyers. The commenter suggested that 

the section state simply that an 

exclusive representative may file an 

appeal at any time after the 

representative is placed on notice that 

the agency considers a proposal 


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nonnegotiable, even if the exclusive 

representative has not requested a 

written allegation of nonnegotiability. 

This suggestion would violate Section 

7117(c)(2) of the Statute, which requires 

a fifteen-day deadline for filing a 

petition for review after an agency 

alleges that the duty to bargain does not 

extend to any matter. 5 U.S.C. 

7117(c)(2). Accordingly, this suggestion 

has not been adopted. 

One union commenter opposed 

§ 2424.21(b)(1)(i) of the proposed rule, 

which stated that, if the agency serves 

a written allegation on the exclusive 

representative more than ten days after 

receiving a written request for such 

allegation, then the petition must be 

filed within fifteen days of the service 

of that allegation. This union 

commenter contended that imposing a 

fifteen-day deadline on an exclusive 

representative—even when an agency 

did not satisfy its obligation to provide 

a requested allegation within ten days of 

the request—rewards an agency’s 

violation of its regulatory obligation to 

furnish requested allegations. However, 

this commenter did not suggest any 

alternative regulatory wording, and as 

discussed in the previous two 

paragraphs, Section 7117(c)(2) of the 

Statute requires a fifteen-day deadline 

for filing a petition for review after an 

agency alleges that the duty to bargain 

does not extend to any matter. 5 U.S.C. 

7117(c)(2). As discussed further below, 

with some modifications to the wording, 

the change identified as 

§ 2424.21(b)(1)(i) of the proposed rule 

has been adopted as § 2424.21(b)(1) of 

the final rule. 

OPM suggested that § 2424.21(b)(1)(ii) 

of the proposed rule be omitted from the 

final rule because it was confusing. As 

explained further below, this suggestion 

was accepted. 

Further Analysis 

Unlike the proposed rule, § 2424.21 of 

the final rule does not state that if an 

agency fails to respond to a written 

request for a written allegation within 

ten days of the request, then the 

exclusive representative may file a 

petition, but only within the next sixty 

days. Further, to simplify the rule, 

§ 2424.21 of the final rule does not 

adopt the wording from 

§ 2424.21(b)(1)(ii) of the proposed rule, 

which described how the Authority 

would handle a situation where an 

agency served a written allegation on 

the exclusive representative more than 

ten days after receiving a written request 

for such allegation, but the exclusive 

representative had already filed a 

petition. These proposed changes have 

been deliberately omitted from the final 

rule. However, § 2424.21 of the final 

rule adopts the change from the 

proposed rule that, if the agency serves 

a written allegation on the exclusive 

representative more than ten days after 

receiving a written request for such 

allegation, and a petition has not yet 

been filed, then the petition must be 

filed within fifteen days of the service 

of that allegation. This change now 

appears as § 2424.21(b)(1) in the final 

rule. 

Section 2424.22 

Comments and Responses 

OPM suggested that this section 

specify that untimely petitions will be 

dismissed absent a demonstration of 

good cause. Existing procedures for 

addressing untimely petitions have 

proven adequate, so this suggestion has 

not been adopted. 

Many of the comments about this 

section concerned the proposal to 

amend severance procedures. The 

proposal notices described two possible 

severance-amendment options. Under 

‘‘Option 1,’’ severance would be 

eliminated altogether by requiring the 

exclusive representative to divide 

matters into separate proposals or 

provisions when filing the petition, and 

by precluding severance at later stages 

of the proceeding. Under ‘‘Option 2,’’ 

severance would be available at only 

one point in the filing process, and 

timely severance requests would be 

automatically granted. However, if 

severance requests were automatically 

granted, then the exclusive 

representative would bear certain 

burdens to ensure that the record was 

sufficient to assess whether the severed 

portions were within the duty to bargain 

or consistent with law. 

One union commenter supported the 

portion of ‘‘Option 1’’ that allowed an 

exclusive representative to divide 

matters into distinct proposals and 

provisions at the petition stage, but the 

commenter desired another opportunity 

for severance later in the process. This 

commenter suggested that the exclusive 

representative’s response to the agency’s 

statement of position should be the later 

point for severance. This commenter 

supported the portion of ‘‘Option 2’’ 

that would make severance automatic 

because this approach would prevent 

severance from becoming its own point 

of contention in the proceedings. 

Another commenter said that neither 

severance option would streamline the 

negotiability process because, even after 

severance occurred, if only a few words 

from a larger proposal or provision were 

allegedly nonnegotiable, then that small 

portion could cause the entire proposal 

or provision to be found nonnegotiable. 

However, the consequence that the 

commenter identified exists regardless 

of severance procedures: Any portion of 

a proposal or provision may render the 

larger whole deficient. Thus, severance 

procedures could not completely 

eliminate that risk. If required to choose 

between the two options, this 

commenter preferred ‘‘Option 1.’’ 

A commenter suggested that unions 

should state, during bargaining, how 

they would prefer proposals to be 

severed in the event of a negotiability 

dispute. The commenter asserted that 

this approach would highlight which 

portions of proposals were most 

important to the union before disputes 

reached the formal negotiability process. 

However, regulating the methods that 

parties use in their bargaining before the 

formal negotiability process begins is 

beyond the scope of the rule. 

An agency commenter supported both 

eliminating severance altogether and 

prohibiting an exclusive representative 

from dividing single proposals from the 

bargaining table into multiple parts—to 

be considered as distinct proposals—in 

a petition. This suggestion is impractical 

because, in most cases, an exclusive 

representative must choose how much 

of the wording from the parties’ 

negotiations will be set forth in the 

petition. In some cases, negotiations 

may involve only a few sentences, but 

many cases involve multiple pages of 

text. It would be inefficient for the rule 

to require an exclusive representative to 

set forth in the petition all of the text 

from the bargaining table, even though 

some parts are entirely agreeable to both 

parties. Thus, an exclusive 

representative must apportion the text 

from the bargaining table into proposals 

for consideration in a petition. 

Another union commenter opposed 

making any changes to existing 

severance procedures because, 

according to this commenter, the Statute 

requires an informal process for 

presenting arguments to the Authority. 

However, the Statute is precise in 

delimiting the procedures for 

negotiability appeals, and there is 

nothing to suggest that the entire 

process should be informal. Further, it 

is unclear how maintaining or 

eliminating severance—which is a 

specialized concept in negotiability 

law—would promote informality, even 

if that were a goal of the negotiability 

process. This commenter also 

contended that if severance were 

eliminated, exclusive representatives 

would be unable to salvage negotiable 

portions of longer proposals in which 

easily isolatable parts were outside the 

duty to bargain. This criticism is 


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unwarranted because, under either 

Option, an exclusive representative 

could submit an easily isolated portion 

of disputed text as one proposal, and 

divide the remainder of the disputed 

text into separate proposals—provided 

that all proposals have meaning 

standing alone. Moreover, as discussed 

in connection with § 2424.25 of the final 

rule, a modified severance procedure 

will be available when the exclusive 

representative files a response to the 

agency’s statement of position. Another 

agency commenter preferred ‘‘Option 1’’ 

because the commenter said that 

‘‘Option 2’’ would generate additional 

disputes over whether an exclusive 

representative had satisfied its burdens 

after receiving automatic severance. 

However, the existing process generates 

disputes about whether the Authority 

should grant severance. The idea for 

automatically granting severance under 

‘‘Option 2’’ was premised on a 

prediction that there would be fewer 

disputes about whether exclusive 

representatives had satisfied their 

burdens after automatic severance than 

there are disputes at present over 

whether the Authority should grant 

severance. The FLRA adheres to its 

predictive judgment that the number of 

disputes will decrease if the question of 

whether to grant severance is not its 

own point of contention. 

After consideration of these severance 

comments, and as explained further 

below, the final rule incorporates 

portions of ‘‘Option 1’’ and ‘‘Option 2.’’ 

At the petition stage, the exclusive 

representative will be responsible for 

dividing matters into distinct proposals 

or provisions, if it desires distinct 

negotiability determinations on 

particular matters standing alone. 

However, when the exclusive 

representative files a response to the 

agency’s statement of position, there 

will be an opportunity to invoke a 

modified severance procedure. The 

ways in which that procedure has been 

modified are discussed in connection 

with § 2424.25 of the final rule. 

The remaining comments on this 

section concerned § 2424.22(d) of the 

proposed rule, which required exclusive 

representatives to respond—in the 

petition for review—to any specific 

claims from an agency’s allegation 

concerning the duty to bargain, or from 

an agency head’s disapproval (the 

response requirement). 

One union commenter opposed the 

response requirement because the 

commenter said that the requirement 

was overly formalistic, and many union 

representatives are not lawyers. 

An agency commenter supported the 

response requirement on the ground 

that it would foster a more prompt and 

focused process for resolving 

negotiability disputes. 

One commenter said the fifteen-day 

deadline for filing a petition would not 

be sufficient to respond to all of the 

specific claims in an agency’s allegation 

concerning the duty to bargain, or an 

agency head’s disapproval. 

Another union commenter stated that 

the response requirement would 

demand that an exclusive representative 

prove that a proposal was negotiable, 

rather than require that an agency prove 

that it was not. 

As explained further below, the final 

rule does not adopt § 2424.22(d) of the 

proposed rule, so the expressed 

concerns about, or support for, the 

response requirement are moot. 

Further Analysis 

The heading and § 2424.22(a) are the 

same in the final rule as in the proposed 

rule. Like the proposal notices’ ‘‘Option 

1,’’ § 2424.22 of the final rule adds a 

new paragraph—designated 

§ 2424.22(b)—to allow for the division 

of matters into proposals or provisions. 

If an exclusive representative seeks a 

negotiability determination on 

particular matters standing alone, then 

the exclusive representative will be 

required to divide the matters into 

separate proposals or provisions when 

filing the petition. An exclusive 

representative may no longer ask the 

Authority for severance at the petition 

stage of the negotiability proceedings, 

because the exclusive representative is 

capable of separating matters into 

distinct proposals or provisions when 

submitting a petition to the Authority. 

However, the final rule also adopts parts 

of ‘‘Option 2’’ from the proposal notices. 

Specifically, the final rule does not 

completely eliminate severance from 

negotiability proceedings, although the 

exclusive representative may no longer 

ask the Authority for severance at the 

petition stage. In accordance with the 

description of ‘‘Option 2’’ in the 

proposal notices, a new sentence has 

been added to § 2424.22(b) of the final 

rule that did not appear in the proposed 

rule. Specifically, § 2424.22(b) of the 

final rule states that ‘‘the exclusive 

representative will have an opportunity 

to divide proposals or provisions into 

separate parts when the exclusive 

representative files a response under 

§ 2424.25.’’ In other words, a modified 

severance procedure will be available at 

the response stage of the negotiability 

proceedings. 

Section 2424.22(c) of the final rule 

differs from the proposed rule in several 

respects. The paragraph identified as 

§ 2424.22(c)(3) in the proposed rule is 

adopted but redesignated as 

§ 2424.22(c)(2)(i) in the final rule. The 

paragraph identified as § 2424.22(c)(4) 

in the proposed rule is adopted but 

redesignated as § 2424.22(c)(3) in the 

final rule. The word ‘‘and’’ has been 

removed from the end of this paragraph 

because an additional paragraph has 

been added to § 2424.22(c) of the final 

rule. The paragraph identified as 

§ 2424.22(c)(5) in the proposed rule is 

adopted but redesignated as 

§ 2424.22(c)(3)(i) in the final rule, and 

the word ‘‘and’’ has been added to the 

end of this paragraph to introduce the 

final paragraph of § 2424.22(c) of the 

final rule. 

Section 2424.22 of the proposed rule 

eliminated the wording currently 

located at 5 CFR 2424.22(b)(4). Section 

2424.22 of the final rule maintains the 

wording currently located at 5 CFR 

2424.22(b)(4), but the wording is 

redesignated as § 2424.22(c)(4) in the 

final rule. This wording is further 

amended so that it requires the petition 

to include any request for a hearing and 

the reasons supporting such request, 

‘‘with the understanding that the 

Authority rarely grants such requests.’’ 

This additional proviso has been added 

to make parties aware that, as a matter 

of longstanding practice, the Authority 

very seldom grants hearing requests. 

Unlike the proposed rule, § 2424.22 of 

the final rule does not require the 

exclusive representative to respond, in 

its petition, to specific bargaining 

obligation or negotiability claims that 

appear in an agency’s written allegation 

concerning the duty to bargain, or an 

agency head’s disapproval—although 

the exclusive representative is not 

prohibited from responding to those 

claims in its petition. 

Like the proposed rule, § 2424.22 of 

the final rule eliminates the paragraph 

concerning severance that is currently 

located at 5 CFR 2424.22(c). 

Section 2424.23 

Comments and Responses 

Two agency commenters opposed 

making the scheduling of a post-petition 

conference dependent on the 

Authority’s discretion. However, the 

existing regulation already recognized 

such discretion by saying that 

conferences would be scheduled only 

‘‘where appropriate.’’ 5 CFR 2424.23(a). 

Although the wording is being changed, 

the effect is the same. One of these 

commenters also stated that conferences 

should occur before the agency files its 

statement of position. Although the 

Authority endeavors to schedule 

conferences before the filing of a 

statement of position, conferences do 


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not always occur within that timeframe. 

The final rule does not guarantee that a 

conference will occur within a 

particular timeframe, but the Authority 

will continue to endeavor to schedule 

conferences at the earliest practicable 

date. 

A union commenter said that 

conferences should be held early in the 

filing process. As stated previously, the 

Authority will continue to endeavor to 

do so. 

Another agency commenter suggested 

that post-petition conferences should 

happen within thirty days or less of the 

Authority’s meeting on the case. The 

commenter expressed concern that, 

because conferences may be held many 

months before a decision is issued, the 

Authority’s Chairman and Members 

may not retain familiarity with the 

details of the conference. Because the 

record of a post-petition conference is 

created shortly after the conference, and 

that record is part of the official case file 

that the Chairman and Members review 

when deciding a negotiability appeal, 

the commenter’s concern is unfounded. 

Thus, the final rule has not been 

amended based on this comment. 

OPM supported emphasizing the 

discretionary nature of post-petition 

conference scheduling, but asked that 

the regulation be amended further to 

state that the post-petition conference 

would generally not occur if no 

additional clarification was needed 

regarding the disputed wording. 

Experience has shown that, in nearly all 

cases, post-petition conferences 

meaningfully clarify the disputes in 

negotiability appeals. Thus, the 

regulation has not been amended as 

OPM suggested. 

OPM also suggested that the postpetition conferences should occur after 

the agency files its statement of 

position. OPM reasoned that the 

statement of position is the first fully 

elaborated explanation of the agency’s 

objections to the disputed wording, and 

if conferences were held after it is filed, 

then the conference holder would have 

more material with which to prepare for 

the conference. Post-petition 

conferences primarily develop the 

factual record in a negotiability appeal 

and reveal whether the parties have a 

shared understanding of the wording in 

dispute. If the parties do not already 

have a shared understanding of the 

disputed wording, then the conference 

helps to develop such an understanding, 

or to precisely identify where the 

parties’ understandings differ. 

Although previously expressed legal 

arguments may shape some of the 

questions at the conference, the existing 

process has shown that conference 

holders are able to elicit sufficient 

information from agencies during the 

conference to assess the nature of their 

objections and tailor the conference 

accordingly. Further, in cases where the 

conference occurs before the statement 

of position is filed, the agency is able to 

focus its arguments in the statement of 

position on the actual disputes between 

the parties, rather than misperceptions 

about the meaning, operation, and 

effects of the proposals or provisions. 

Therefore, the final rule does not aim to 

schedule post-petition conferences after 

the filing of the statement of position. 

One commenter suggested that the 

section should not be changed because 

the existing process has worked very 

well. The changes adopted in the final 

rule will more closely align the wording 

of the regulation and the Authority’s 

actual practices. The essential nature 

and function of the post-petition 

conferences will remain the same. 

One agency commenter suggested that 

§ 2424.23(e) of the proposed rule should 

be amended to specify that the 

Authority may take other appropriate 

action to aid in its decision making even 

if a conference is not held. However, the 

proposed rule already included such 

wording because it stated that the 

Authority may hold a hearing or take 

other appropriate action, in the exercise 

of its discretion, instead of, or in 

addition to, conducting a post-petition 

conference. Section 2424.23(e) of the 

final rule retains this wording. 

Further Analysis 

The heading of § 2424.23 is the same 

in the final rule as in the proposed rule. 

Further, § 2424.23(a) is the same in the 

final rule as in the proposed rule, with 

one exception. Whereas § 2424.23(a) of 

the proposed rule said that ‘‘[t]he FLRA 

may, in its discretion, schedule a postpetition conference,’’ § 2424.23(a) of the 

final rule says that ‘‘[t]he FLRA will, in 

its discretion, schedule a post-petition 

conference.’’ The word ‘‘may’’ was 

changed to ‘‘will’’ to emphasize that, in 

the vast majority of cases, a postpetition conference will be scheduled. 

Further, the phrase ‘‘in its discretion’’ 

already permits the Authority to 

exercise reasonable judgment in 

deciding whether to schedule a postpetition conference in a particular case, 

so the permissive ‘‘may’’ was not 

needed to signal such discretion. 

Although the proposed rule did not 

include changes to § 2424.23(b)(3), the 

final rule adds the word ‘‘and’’ at the 

end of § 2424.23(b)(3), in order to 

introduce the following subsection. As 

this change is merely a grammatically 

correct way to introduce § 2424.23(b)(4), 

rather than a substantive change to 

§ 2424.23(b)(3), this technical change 

falls within the scope of the proposed 

amendments to § 2424.23(b)(4). 

Section 2424.23(b)(4) of the proposed 

rule was amended, and the amended 

version appears as § 2424.23(b)(4) of the 

final rule. Whereas the proposed rule 

addressed the status of ‘‘any proposal or 

provision that is also involved in’’ 

another proceeding, the final rule 

addresses the status of ‘‘any proceedings 

. . . that are directly related to the 

negotiability petition.’’ Thus, the scope 

of § 2424.23(b)(4) in the final rule is 

broader than § 2424.23(b)(4) in the 

proposed rule. The final rule requires 

parties to be prepared and authorized to 

discuss the status of any proceedings 

directly related to the negotiability 

petition, and not merely a particular 

proposal or provision that is involved in 

both the negotiability process and 

another proceeding. Further, including 

the ‘‘directly related’’ wording in 

§ 2424.23(b)(4) of the final rule ensures 

consistency with § 2424.30, which states 

that the Authority will dismiss a 

petition for review when the exclusive 

representative has filed an unfair labor 

practice (ULP) charge or a grievance 

alleging a ULP, and the charge or 

grievance concerns issues ‘‘directly 

related’’ to the petition. 

Section 2424.23(b) of the final rule 

deletes the wording currently located at 

5 CFR 2424.23(b)(5) because the subject 

matter currently addressed at 5 CFR 

2424.23(b)(5)—that is, extensions of 

time limits—is now addressed in 

§ 2424.23(c) of the final rule. Section 

2424.23(c) is the same in the final rule 

as in the proposed rule. 

Section 2424.23(d) of the final rule 

differs from the proposed rule in three 

respects. First, rather than referring to 

‘‘the representative of the FLRA,’’ as the 

proposed rule did, the final rule refers 

to ‘‘the FLRA representative.’’ Second, 

the final rule clarifies that the FLRA 

will serve the record of the conference 

on the parties: the FLRA representative 

conducting the conference will prepare 

the record but not serve it. Third, the 

final rule references ‘‘a written record,’’ 

rather than ‘‘a written statement’’ as in 

the proposed rule. ‘‘Record’’ is the term 

the FLRA uses to refer to this document 

in communications with parties and in 

Authority decisions, so the rule’s 

wording was changed to correspond 

with these other uses. 

Section 2424.23(e) is the same in the 

final rule as in the proposed rule. 

Section 2424.24 

Comments and Responses 

OPM and an agency commenter 

supported the specificity requirements 


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of the section as promoting prompt and 

focused resolutions to disputes. 

Further Analysis 

The heading and § 2424.24(a) are the 

same in the final rule as in the proposed 

rule, with one minor, technical change. 

The final rule uses the term ‘‘outside the 

duty to bargain,’’ rather than ‘‘not 

within the duty to bargain,’’ to make the 

sentence read more clearly and to use 

the same wording that is set forth in 

§ 2424.32(b). The change does not alter 

the sentence’s meaning. 

Although the proposed rule included 

changes to streamline § 2424.24(b), the 

final rule leaves the wording located at 

5 CFR 2424.24(b) unchanged. 

Section 2424.24(c)(2) is the same in 

the final rule as in the proposed rule. 

Section 2424.24(c)(3) of the final rule 

differs from the proposed rule in several 

respects. The first part of § 2424.24(c)(3) 

of the final rule—in the portion that 

begins with the word ‘‘[s]tatus’’—is 

changed from the proposed rule so that 

this portion of § 2424.24(c)(3) of the 

final rule mirrors § 2424.23(b)(4) of the 

final rule. The second part of 

§ 2424.24(c)(3) of the final rule—in the 

portion that begins with ‘‘and 

whether’’—is the same as in the 

proposed rule, except the word ‘‘and’’ 

has been deleted after the semicolon. 

The paragraph identified as 

§ 2424.24(c)(4) in the proposed rule is 

adopted but redesignated as 

§ 2424.24(c)(3)(i) in the final rule, and 

the word ‘‘and’’ has been added to the 

end of this paragraph to introduce the 

final paragraph of § 2424.24(c) of the 

final rule. Section 2424.24 of the 

proposed rule eliminated the wording 

currently located at 5 CFR 2424.24(c)(4). 

However, § 2424.24 of the final rule 

maintains the wording currently located 

at 5 CFR 2424.24(c)(4), but that wording 

is supplemented so that it requires the 

petition to include any request for a 

hearing and the reasons supporting such 

request, ‘‘with the understanding that 

the Authority rarely grants such 

requests.’’ This additional proviso has 

been added to make parties aware that, 

as a matter of longstanding practice, the 

Authority very seldom grants hearing 

requests. 

Like the proposed rule, § 2424.24 of 

the final rule deletes the paragraph 

currently located at 5 CFR 2424.24(d), 

and the final rule also redesignates the 

paragraph currently located at 5 CFR 

2424.24(e) as the new § 2424.24(d) of 

the final rule. 

Section 2424.25 

Comments and Responses 

OPM suggested that this section 

specify that untimely responses to 

statements of position will not be 

considered, absent a demonstration of 

good cause. Existing procedures for 

addressing untimely responses have 

proven adequate, so this suggestion has 

not been adopted. 

OPM and an agency commenter 

supported the specificity requirements 

of this section as promoting prompt and 

focused resolutions to disputes. 

One commenter suggested that the 

section should clarify that a response is 

optional if the exclusive representative 

does not have any additional arguments 

that were not already set forth in the 

petition for review. This concern is 

adequately addressed by § 2424.25(c) of 

the final rule, which states that the 

response is limited to matters that the 

agency raised in its statement of 

position, and that the exclusive 

representative is not obligated to repeat 

arguments that were made in the 

petition for review. 

One commenter specifically 

supported the idea of granting severance 

automatically—as suggested in the 

proposal notices under severance 

‘‘Option 2’’—and that commenter also 

advocated making severance available 

in the response. Except for one point 

that was already addressed in 

connection with § 2424.22 about 

disputes over whether an exclusive 

representative satisfied its burdens 

related to automatic severance, 

commenters did not specifically oppose 

providing severance automatically when 

it was sought. To be clear, some 

commenters did advocate for 

eliminating severance altogether, but 

those commenters did not provide 

specific reasons why—if severance were 

retained in some fashion—it should not 

occur automatically when sought. 

Further Analysis 

Section 2424.25(a) is the same in the 

final rule as in the proposed rule, except 

that, instead of the word ‘‘union’’ as in 

the proposed rule, the final rule uses the 

term ‘‘exclusive representative.’’ 

Although the proposed rule included 

changes to streamline § 2424.25(b), the 

final rule leaves the wording located at 

5 CFR 2424.25(b) unchanged. 

Section 2424.25(c) is the same in the 

final rule as in the proposed rule, except 

for the fourth complete sentence in 

§ 2424.25(c). The fourth complete 

sentence in § 2424.25(c) of the proposed 

rule stated, ‘‘You must limit your 

response to the matters that the agency 

raised in its statement of position.’’ By 

contrast, the fourth complete sentence 

in § 2424.25(c) of the final rule states, 

‘‘With the exception of severance under 

paragraph (d) of this section, you must 

limit your response to the matters that 

the agency raised in its statement of 

position.’’ Thus, this sentence in the 

final rule allows for the accomplishment 

of severance in the exclusive 

representative’s response, but otherwise, 

the response is limited to the matters 

that the agency raised in its statement of 

position. 

Section 2424.25 of the proposed rule 

deleted the severance wording currently 

located at 5 CFR 2424.25(d), and the 

proposed rule redesignated the wording 

currently located at 5 CFR 2424.25(e) as 

the new § 2424.25(d). 

As mentioned during the earlier 

discussion of severance in connection 

with the content of a petition for review 

under § 2424.22, the final rule makes a 

modified severance procedure available 

under § 2424.25. Thus, unlike the 

proposed rule, § 2424.25 of the final rule 

does not completely delete the 

severance paragraph currently located at 

5 CFR 2424.25(d). Instead, the final rule 

amends that paragraph to allow the 

exclusive representative, of its own 

accord, to accomplish severance of a 

previously submitted proposal or 

provision. Section 2424.25(d) of the 

final rule explains how the exclusive 

representative may accomplish 

severance of its own accord and 

describes how the exclusive 

representative’s accomplishment of 

severance must aim to satisfy the 

exclusive representative’s burdens 

under §§ 2424.25(c) and 2424.32. This 

approach is consistent with severance 

‘‘Option 2,’’ as described in the proposal 

notices in connection with § 2424.22 of 

the proposed rule. 

Under § 2424.25(d) of the final rule, 

the exclusive representative must 

identify the proposal or provision that 

the exclusive representative is severing 

and set forth the exact wording of the 

newly severed portion(s). At that point, 

under the final rule, severance will have 

been accomplished, creating revised or 

new proposals or provisions. However, 

under the final rule, consistent with 

FLRA case law, the exclusive 

representative will maintain the burden 

of establishing why, despite an agency’s 

objections, the newly severed proposals 

or provisions are within the duty to 

bargain or not contrary to law. That 

burden includes explaining how the 

newly severed proposals or provisions 

operate and stand alone with 

independent meaning. Moreover, under 

the final rule, if the exclusive 

representative accomplishes severance 

of its own accord but fails to meet the 

associated burdens under § 2424.25(c) 

or § 2424.32, then the Authority would 

dismiss the petition as to the newly 

severed proposals or provisions, based 

on the exclusive representative’s failure 


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to provide an adequate record for a 

negotiability determination. See, e.g., 

NFFE, Loc. 1655, 49 FLRA 874, 878–79 

(1994) (dismissing petition as to one 

provision because the record was 

inadequate for the Authority to make a 

negotiability determination). 

An exclusive representative must be 

especially attentive to its burdens in 

connection with accomplishing 

severance, particularly because a 

response is ordinarily an exclusive 

representative’s last filing in a 

negotiability case. Whereas 

insufficiently explained proposals or 

provisions in a petition may often be 

clarified in the record of a later postpetition conference, it is unlikely 

(although not impossible) that a postpetition conference will occur after the 

filing of a response. 

Section 2424.25(e) of the final rule 

leaves the wording currently located at 

5 CFR 2424.25(e) unchanged. 

Section 2424.26 

Comments and Responses 

OPM suggested that this section 

specify that untimely replies will not be 

considered, absent a demonstration of 

good cause. Existing procedures for 

addressing untimely replies have 

proven adequate, so this suggestion has 

not been adopted. 

Two commenters opposed 

§ 2424.26(b) of the proposed rule 

because that paragraph changed the 

time limit for filing a reply from fifteen 

days (under the existing rule) to ten 

days from the date of receipt of the 

exclusive representative’s response. 

OPM supported shortening the time 

limit. As discussed further below, the 

final rule does not change the time 

limit. 

Further Analysis 

The heading and § 2424.26(a) are the 

same in the final rule as in the proposed 

rule. Although the proposed rule 

included changes to § 2424.26(b)— 

concerning the time limit for filing a 

reply—the final rule leaves the wording 

located at 5 CFR 2424.26(b) unchanged. 

Section 2424.22(c) is the same in the 

final rule as in the proposed rule, with 

one exception. The sixth full sentence of 

§ 2424.22(c) of the final rule ends with 

the word ‘‘respectively,’’ which was not 

part of the proposed rule. 

Section 2424.26 of the proposed rule 

deleted the severance wording currently 

located at 5 CFR 2424.26(d), and the 

proposed rule redesignated the wording 

currently located at 5 CFR 2424.25(e) as 

the new § 2424.25(d). The final rule 

adopts these changes in full. 

Section 2424.27 

Comments and Responses 

One commenter suggested that the 

paragraph about additional submissions 

include a time limit for when such 

submissions must be filed. This 

paragraph is mostly aimed at addressing 

unexpected developments that cannot 

be adequately discussed in the filings 

that the negotiability regulations already 

recognize. For that reason, it is unclear 

what event would trigger a time limit for 

additional submissions, and the 

commenter did not suggest any point at 

which to begin measuring such a time 

limit. Further, one purpose of this 

section is to allow filings even late in 

negotiability proceedings, if sufficiently 

important developments could affect the 

Authority’s eventual decision and order. 

A time limit would impede that 

purpose. Thus, this suggestion has not 

resulted in changes to the rule. 

The proposed rule removed—from the 

paragraph currently located at the 5 CFR 

2424.27—the five-day deadline for filing 

an additional submission, after receipt 

of an Authority order granting 

permission to file that submission. A 

union commenter opposed this change 

because the proposed rule did not 

provide an alternate deadline. As 

discussed further below, the final rule 

addresses this issue by requiring that 

any additional submission be filed 

simultaneously with the request for 

permission to file that additional 

submission. 

The same union commenter also 

characterized this paragraph as creating 

a process for third parties to submit 

documents for the Authority’s 

consideration in a negotiability case. 

That is, the commenter believed that the 

paragraph concerned filings that are not 

submitted by the parties to a case. 

However, the commenter’s 

characterization misconstrued the 

paragraph. Both before and after 

revisions, the beginning of the 

paragraph states that ‘‘[t]he Authority 

will not consider any submission filed 

by any party other than those authorized 

under this part,’’ and then the 

remainder of the paragraph sets forth a 

process for granting exceptions to that 

prohibition. 5 CFR 2424.27. The 

reference to ‘‘any party’’ does not permit 

non-parties to employ this procedure to 

file submissions in a negotiability case. 

Instead, the reference to ‘‘any party’’ 

emphasizes that all parties to 

negotiability cases are limited to the 

filings expressly recognized in the 

negotiability regulations, except for 

additional submissions that the 

Authority grants permission to file, in 

accordance with this section. See 

Processing of Cases; Final Rules, 45 FR 

3482, 3485 (Jan. 17, 1980) (explaining 

that the purpose of the predecessor rule 

to § 2424.27 was to clarify that ‘‘the 

Authority will not consider any 

submissions other than a petition for 

review, statement of position[,] and 

response . . . unless such additional 

submission is requested by the 

Authority[,] or the Authority in its 

discretion grants permission to file such 

submission’’). Further, the paragraph 

states that a party must show that 

extraordinary circumstances justify 

filing an additional submission, and this 

burden reinforces that the paragraph 

does not concern filings by non-parties. 

A separate rule governing submissions 

from amicus curiae is located at 5 CFR 

2429.9. 

Further Analysis 

Section 2424.27 of the final rule 

adopts the heading and all of the 

wording from the proposed rule, but 

§ 2424.27 of the final rule also includes 

one additional sentence that comes from 

the wording currently located at 5 CFR 

2424.27. Specifically, the additional 

sentence in the final rule that was not 

present in the proposed rule states, 

‘‘The additional submission must be 

filed with the written request.’’ The 

‘‘written request’’ in this additional 

sentence is a written request to file an 

additional submission in a negotiability 

proceeding based on a showing of 

extraordinary circumstances. 

Section 2424.30 

Comments and Responses 

One union commenter and one 

agency commenter supported the 

proposed clarifications in this section 

about when a grievance alleging a ULP 

would be considered administratively 

resolved. These commenters stated that 

the proposed rule identified all of the 

circumstances that, to their knowledge, 

could be considered an administrative 

resolution that would trigger the thirtyday deadline for an exclusive 

representative to refile a directly related 

negotiability petition that was 

previously dismissed without prejudice. 

The final rule adopts these clarifications 

from the proposed rule in full. 

The same union commenter suggested 

that, because this section would now 

list the possible administrative 

resolutions for a grievance alleging a 

ULP, the section should also list the 

possible administrative resolutions for a 

ULP charge that prompted the dismissal 

of a negotiability petition without 

prejudice. The commenter should refer 

to the ULP regulations in part 2423 for 

guidance about potential administrative 


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resolutions of ULP charges. The final 

rule does not repeat information from 

part 2423. 

An agency commenter suggested that 

§ 2424.30(b)(2) of the proposed rule 

state that where an agency makes only 

bargaining obligation claims, and not 

negotiability claims, those bargaining 

obligation claims will not be resolved 

through the negotiability process. The 

clarification that this commenter sought 

is already present in § 2424.2(d)’s 

definition of a petition for review, so 

this suggestion has not resulted in 

changes to § 2424.30 of the final rule. 

OPM contended that the Authority 

should not automatically dismiss 

petitions for review without prejudice 

when an exclusive representative has 

filed a ULP charge or grievance alleging 

a ULP, and the charge or grievance 

concerns issues directly related to the 

petition for review. Instead, OPM 

advocated a case-by-case assessment of 

which forum would most expeditiously 

resolve the parties’ disputes. According 

to OPM, if the Authority determines that 

the negotiability process would provide 

the most expeditious resolution, then 

the Authority should not dismiss a 

petition for review (without prejudice) 

while the parties’ directly related 

disputes proceed toward resolution in 

another forum. When the Authority 

amended its negotiability regulations to 

allow for the resolution of bargaining 

obligation disputes that accompany 

negotiability disputes, the Authority 

declined to adopt a commenter’s 

suggestion that, if directly related 

disputes were filed in multiple forums, 

then an exclusive representative should 

have the right to determine which forum 

proceeds to a resolution first. On that 

point, the Authority stated that ULP 

‘‘proceedings are, in these situations, 

better suited to resolving the entire 

dispute.’’ Negotiability Proceedings, 63 

FR 66405, 66410 (Dec. 2, 1998). The 

Authority explained further: 

[W]ith the sole exception of compelling 

need claims . . . all bargaining obligation 

and negotiability claims may be adjudicated 

in [a ULP] proceeding. Further, unless 

excluded from the scope of the parties’ 

grievance procedure by agreement, alleged 

[ULPs] may be resolved under such 

negotiated procedures. Thus, with one 

exception, dismissing petitions for review 

where [ULP] charges have been filed does not 

jeopardize a party’s ability to obtain 

adjudication of all claims. In addition, . . . 

with the exception of orders to bargain, 

remedies available in [ULP] proceedings 

under 5 U.S.C. 7118(a)(7) are not . . . 

available in Authority decisions and orders 

issued under this part. Accordingly, in 

situations where an exclusive representative 

has filed [a ULP] charge, requiring 

adjudication in a negotiability proceeding 

would deprive a prevailing exclusive 

representative of such remedies. 

Id. The Authority continues to adhere 

to those views about resolving cases that 

involve both bargaining obligation and 

negotiability disputes. Moreover, a caseby-case assessment would leave the 

decision-makers in other forums— 

specifically, the General Counsel and 

employees of the Office of the General 

Counsel, as well as arbitrators— 

uncertain about whether to process 

disputes before them that are directly 

related to a negotiability petition for 

review. For all these reasons, the final 

rule does not adopt OPM’s suggestion. 

OPM also suggested that the section 

state that if an exclusive representative 

files a ULP charge that solely concerns 

an allegation of nonnegotiability, then 

the Authority may choose to process the 

ULP charge as a negotiability appeal. 

However, OPM did not provide any 

legal authority to establish that an 

exclusive representative’s choice of 

forum may be overruled in that manner, 

so this suggestion has not been adopted. 

Further Analysis 

The heading; § 2424.30(a)—including 

subsections (a)(1), (2), (3), and (4); and 

§ 2424.30(b) and (b)(1) are the same in 

the final rule as in the proposed rule. 

Section 2424.30(b)(2) of the final rule 

differs from the proposed rule only in 

its first sentence. This sentence 

concerns how the Authority will 

process a petition for review when an 

exclusive representative has not already 

filed a related ULP charge or a grievance 

alleging a ULP, but a bargaining 

obligation dispute exists in connection 

with the petition for review. The first 

sentence of § 2424.30(b)(2) of the 

proposed rule stated, in pertinent part, 

‘‘The exclusive representative may file 

an unfair labor practice charge pursuant 

to part 2423 of this subchapter or a 

grievance under the parties’ negotiated 

grievance procedure concerning the 

bargaining obligation dispute . . . .’’ In 

contrast, the first sentence of 

§ 2424.30(b)(2) of the final rule states, in 

pertinent part, ‘‘The exclusive 

representative may have an opportunity 

to file an unfair labor practice charge 

pursuant to part 2423 of this subchapter 

or a grievance under the parties’ 

negotiated grievance procedure 

concerning the bargaining obligation 

dispute . . . .’’ This sentence was 

changed to avoid implying that, if an 

exclusive representative files a petition 

that involves a bargaining obligation 

dispute, then the exclusive 

representative is entitled to file a ULP 

charge or grievance alleging a ULP, 

irrespective of the ordinary legal and 

contractual conditions that would 

otherwise apply to these filings. Thus, 

this portion of the first sentence of 

§ 2424.30(b)(2) of the final rule uses the 

phrase ‘‘may have an opportunity to 

file’’ to indicate that, if an exclusive 

representative files a ULP charge or 

grievance as described in this 

subsection, then those filings would be 

subject to all of the otherwise applicable 

conditions that ordinarily apply to such 

filings—such as, for example, time 

limits. The remainder of § 2424.30(b)(2) 

of the final rule is the same as the 

proposed rule. 

Section 2424.31 

Comments and Responses 

One commenter disagreed that this 

section should allow for hearings or 

other appropriate action to resolve 

bargaining obligation disputes since this 

part of the Authority’s Regulations 

concerns negotiability proceedings. The 

procedures of this section would apply 

only to bargaining obligation disputes 

that may be resolved in a negotiability 

appeal because they are accompanied by 

negotiability disputes concerning the 

same proposal or provision. 

A union commenter stated that, to the 

extent that the final rule is intended to 

preclude the consideration of parties’ 

views about whether a hearing is 

needed, the commenter opposes that 

change. The final rule is not intended to 

preclude the consideration of the 

parties’ views, and none of the changes 

to the rule expressly state or imply that 

the Authority will not consider the 

parties’ views. Thus, this concern is 

misplaced. 

Further Analysis 

Section 2424.31 is the same in the 

final rule as in the proposed rule. 

Section 2424.32 

Comments and Responses 

An agency commenter recommended 

adding the phrase ‘‘or government-wide 

regulation’’ after the phrase ‘‘contrary to 

law’’ in § 2424.32(a) and (b). This 

change has not been made because this 

section’s use of the phrase ‘‘contrary to 

law’’ is intended to encompass all 

authorities with the force and effect of 

law—not merely statutes. 

A union commenter opposed the 

newly created burden under 

§ 2424.32(c) of the proposed rule that 

each party must give sufficiently 

detailed explanations to enable the 

Authority to understand the party’s 

position regarding the meaning, 

operation, and effects of a proposal or 

provision. The commenter noted that 

§ 2424.32(c) cautioned that the 

Authority’s decision may be adverse to 


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a party that fails to satisfy this burden 

to sufficiently explain, and the 

commenter contended that an adverse 

consequence is an unfair penalty for 

non-lawyer union representatives who 

may not phrase arguments in the most 

compelling way. This commenter 

viewed § 2424.32(c) as an attempt to 

punish parties that do not provide 

sophisticated analyses. However, the 

commenter’s criticism is unfounded 

because the burden in § 2424.32(c) is 

not concerned with sophistication; it is 

concerned with sufficiency. Parties 

must provide the Authority with the 

details necessary to understand their 

positions, and parties must be aware 

that a failure to provide those details 

may adversely affect them. Section 

2424.32(c) essentially warns parties not 

to expect the Authority to fill in gaps in 

order to fully develop, or make sense of, 

incompletely explained positions. 

Rather, parties must be diligent in 

setting forth their understandings on all 

relevant facets of the meaning, 

operation, and effects of a proposal or 

provision, as well as the associated legal 

implications. 

Further Analysis 

The heading and § 2424.32(a) are the 

same in the final rule as in the proposed 

rule. 

Section 2424.32(b) of the final rule 

differs from the proposed rule in one 

respect. Whereas § 2424.32(b) of the 

proposed rule stated that ‘‘[t]he agency 

has the burden of explaining the 

meaning, operation, and effects of the 

proposal or provision, if the agency 

disagrees with the exclusive 

representative’s explanations’’; 

§ 2424.32(b) of the final rule states that 

‘‘[t]he agency has the burden of 

explaining the agency’s understanding 

of the meaning, operation, and effects of 

the proposal or provision, if the agency 

disagrees with the exclusive 

representative’s explanations.’’ Unlike 

the proposed rule, § 2424.32(b) of the 

final rule assigns the agency the burden 

of explaining the agency’s 

understanding of meaning, operation, 

and effects because the agency has this 

burden of explanation only when the 

agency disagrees with the explanations 

that the exclusive representative already 

provided. In those situations where the 

agency disagrees with the exclusive 

representative’s explanations, the 

agency’s burden would be to explain the 

agency’s understanding, so as to 

distinguish that understanding from the 

exclusive representative’s previous 

explanations. 

The wording in § 2424.32(b) of the 

final rule is consistent with 

§ 2424.24(c)(2)(i) of the final rule, in 

which agencies are instructed that their 

statements of positions must include, 

‘‘[i]f different from the exclusive 

representative’s position, an explanation 

of the meaning the agency attributes to 

the proposal or provision and the 

reasons for disagreeing with the 

exclusive representative’s explanation 

of meaning.’’ 5 CFR 2424.24(c)(2)(i) 

(emphasis added). 

Further, § 2424.32(b) of the final rule 

is consistent with Authority precedent 

that when the parties disagree about a 

proposal’s meaning, then the Authority 

relies on the exclusive representative’s 

explanation of the proposal’s meaning 

to assess whether the proposal is within 

the duty to bargain, as long as the 

exclusive representative’s explanation 

comports with the proposal’s wording. 

E.g., Nat’l Nurses United, 70 FLRA 306, 

307 (2017). 

Moreover, § 2424.32(b) of the final 

rule accounts for cases where an 

exclusive representative explains a 

proposal’s meaning, but that 

explanation does not comport with the 

proposal’s wording. Under those 

circumstances, if the agency disagrees 

with the exclusive representative’s 

explanation, then the agency bears the 

burden of explaining (1) the agency’s 

understanding of the proposal and how 

that understanding comports with the 

proposal’s wording; and (2) why the 

exclusive representative’s alternate 

explanation does not comport with the 

proposal’s wording. 

The remainder of § 2424.32(b) of the 

final rule is the same as the proposed 

rule. 

Section 2424.32(c); (d)—including 

subsections (d)(1), (d)(1)(i), (d)(1)(ii), 

and (d)(2); and (e) of the final rule are 

the same as the proposed rule. 

Section 2424.40 

None of the public comments 

addressed § 2424.40. Section 2424.40 is 

the same in the final rule as in the 

proposed rule, except for one phrase 

that has been added in the final rule. 

The second complete sentence of 

§ 2424.40(b) in the proposed rule stated, 

‘‘If the Authority finds that the duty to 

bargain does not extend to the proposal, 

then the Authority will dismiss the 

petition for review.’’ In § 2424.40(b) of 

the final rule, the second half of this 

sentence states, ‘‘then the Authority will 

dismiss the petition for review as to that 

proposal.’’ This change makes 

§ 2424.40(b) of the final rule consistent 

with § 2424.40(c) of the final rule, 

which states, ‘‘If the Authority finds that 

a provision is contrary to law, rule, or 

regulation, then the Authority will 

dismiss the petition for review as to that 

provision.’’ 5 CFR 2424.40(c) (emphasis 

added). Further, this change is 

consistent with the Authority’s 

longstanding practice. E.g., AFGE, Loc. 

3509, 46 FLRA 1590, 1623–24 (1993) 

(dismissing petition for review as to 

seven proposals, but ordering agency to 

bargain concerning one proposal). 

Section 2424.41 

None of the public comments 

addressed § 2424.41. Section 2424.41 is 

the same in the final rule as in the 

proposed rule, with one exception. 

Section 2424.41 of the proposed rule 

stated that an exclusive representative 

must report to the appropriate Regional 

Director an agency’s failure to comply 

with an order issued in accordance with 

§ 2424.40 ‘‘within thirty (30) days 

following expiration of the 60-day 

period under 5 U.S.C. 7123(a).’’ By 

contrast, § 2424.41 of the final rule 

reverts to wording currently located at 

5 CFR 2424.41. Thus, § 2424.41 of the 

final rule states that an exclusive 

representative must report an agency’s 

failure to comply with an order ‘‘within 

a reasonable period of time following 

expiration of the 60-day period under 5 

U.S.C. 7123(a).’’ 

Section 2424.50 

Comments and Responses 

Two union commenters opposed 

changing the regulatory definition of 

compelling need in a way that would 

permit the Authority to find that 

circumstances other than those listed in 

the illustrative examples demonstrated 

the existence of compelling need. These 

same commenters opposed adding any 

additional examples to the illustrative 

criteria. 

One commenter provided six 

additional examples to consider adding 

to the illustrative criteria. 

OPM supported changing the 

regulatory definition of compelling need 

in a way that would permit the 

Authority to find that circumstances 

other than those listed in the illustrative 

criteria demonstrated the existence of 

compelling need. 

OPM requested that the section 

specify that compelling need arguments 

may be merely one of several grounds 

for an allegation of nonnegotiability. 

OPM also asked that the section include 

additional explanation about what 

constitutes an agency rule or regulation. 

These requests were not germane to the 

definition of a compelling need—which 

is the subject of this section—so they 

were not incorporated into the final 

rule. 

OPM suggested removing the 

reference to ‘‘the accomplishment of the 

mission or the execution of functions of 


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the agency or primary national 

subdivision’’ from § 2424.50(a) of the 

proposed rule. As no rationale was 

offered for deleting that phrase, it has 

been retained in the final rule. 

One agency commenter argued that all 

agency rules that have general 

applicability to the agency’s workforce 

should demonstrate a compelling need. 

This argument is rejected because it 

would allow agencies to render topics 

nonnegotiable merely by issuing a 

regulation of general applicability. This 

same commenter argued that executive 

orders should qualify as ‘‘mandate[s] to 

the agency or primary national 

subdivision under law or other outside 

authority, which implementation is 

essentially nondiscretionary in nature,’’ 

under § 2424.50(c). Nothing in the rule 

prevents a party from making that 

argument in the context of a concrete 

dispute, but the final rule does not 

include a blanket statement to that 

effect. 

The Department of Veterans Affairs 

argued that agency rules and regulations 

concerning pandemics, epidemics, or 

other similar emergency situations 

should be treated as rules and 

regulations supported by a compelling 

need, particularly because of the 

Department’s healthcare 

responsibilities. The Department may 

advance that argument in the context of 

a concrete dispute, but the final rule 

does not include a blanket statement to 

that effect. 

Ultimately, the comments on 

additional examples to add to § 2424.50 

were varied and conflicting. The final 

rule retains the examples already set 

forth at 5 CFR 2424.50. However, as 

explained further below, the final rule 

does not include any additional 

examples in the illustrative criteria. In 

addition, the final rule does not include 

a phrase that would recognize the 

Authority’s ability to determine that a 

compelling need exists based on 

circumstances other than those in the 

illustrative criteria. 

Further Analysis 

Section 2424.50 of the final rule 

differs from the proposed rule in several 

respects. Like § 2424.50 of the proposed 

rule, § 2424.50 of the final rule adds to 

the middle of the introductory 

paragraph the following wording that 

does not currently appear in 5 CFR 

2424.50: ‘‘the rule or regulation was 

issued by the agency or any primary 

national subdivision of the agency, 

and.’’ This additional wording 

recognizes requirements from Section 

7117(a)(3) of the Statute—concerning 

agency rules or regulations for which a 

compelling need exists—as part of 

§ 2424.50 of the final rule, which 

provides a regulatory definition for 

compelling need. 

After the concluding word ‘‘and’’ in 

the additional wording discussed in the 

preceding paragraph, § 2424.50 of the 

proposed rule stated that ‘‘the agency 

demonstrates that either the rule or 

regulation meets one or more of the 

following illustrative criteria, or the 

Authority determines that other 

circumstances establish a compelling 

need for the rule or regulation.’’ By 

contrast, after the concluding word 

‘‘and’’ in the additional wording 

discussed in the preceding paragraph, 

§ 2424.50 of the final rule states that 

‘‘the agency demonstrates that the rule 

or regulation satisfies one of the 

following illustrative criteria.’’ As such, 

the final rule departs from the proposed 

rule in that the final rule does not state 

that the Authority may determine that 

‘‘other circumstances establish a 

compelling need for the rule or 

regulation.’’ Further, the final rule 

changes the phrase ‘‘one or more of the 

following illustrative criteria’’ from the 

proposed rule to simply ‘‘one of the 

following illustrative criteria.’’ This 

change was made because a compelling 

need exists if any one of the illustrative 

criteria is satisfied, and it will ordinarily 

be unnecessary for the Authority to 

determine that a rule or regulation 

satisfies multiple illustrative criteria. 

However, this change does not preclude 

the possibility that a rule or regulation 

could satisfy more than one of the 

illustrative criteria. 

In connection with § 2424.50, the 

proposal notices solicited suggestions 

for more illustrative criteria that could 

be added to the criteria currently 

located at 5 CFR 2424.50. Although the 

FLRA appreciates the time that 

commenters dedicated to suggesting 

additional illustrative criteria, the final 

rule does not adopt any additional 

criteria. Under the final rule, the 

illustrative criteria currently located at 5 

CFR 2424.50(a), (b), and (c) remain 

unchanged. 

Regulatory Flexibility Act Certification 

Pursuant to section 605(b) of the 

Regulatory Flexibility Act, 5 U.S.C. 

605(b), the Chairman of the FLRA has 

determined that this final rule will not 

have a significant impact on a 

substantial number of small entities, 

because this final rule applies only to 

Federal agencies, Federal employees, 

and labor organizations representing 

those employees. 

Executive Order 12866, Regulatory 

Review 

The FLRA is an independent 

regulatory agency and thus is not 

subject to the requirements of E.O. 

12866 (58 FR 51735, Sept. 30, 1993). 

Executive Order 13132, Federalism 

The FLRA is an independent 

regulatory agency and thus is not 

subject to the requirements of E.O. 

13132 (64 FR 43255, Aug. 4, 1999). 

Unfunded Mandates Reform Act of 

1995 

This 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. 

Small Business Regulatory Enforcement 

Fairness Act of 1996 

This action is not a major rule as 

defined by section 804 of the Small 

Business Regulatory Enforcement 

Fairness Act of 1996. This 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 foreignbased companies in domestic and 

export markets. 

Paperwork Reduction Act of 1995 

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. 

List of Subjects in 5 CFR Part 2424 

Negotiability Proceedings. 

For the reasons stated in the 

preamble, the Federal Labor Relations 

Authority amends 5 CFR part 2424 as 

set forth below: 

■ 1. The authority citation for part 2424 

continues to read as follows: 

Authority: 5 U.S.C. 7134. 

■ 2. Revise Section 2424.1 to read as 

follows: 

§ 2424.1 Applicability of this part. 

This part applies to all petitions for 

review filed on or after October 12, 

2023. 

■ 3. Amend § 2424.2 by revising 

paragraphs (a), (c)(2) and (c)(3), adding 


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paragraphs (c)(4) through (7), and 

revising paragraphs © and (f). The 

revisions and additions read as follows: 

§ 2424.2 Definitions. 

In this part, the following definitions 

apply: 

(a) Bargaining obligation dispute 

means a disagreement between an 

exclusive representative and an agency 

concerning whether, in the specific 

circumstances involved in a particular 

case, the parties are obligated by law to 

bargain over a proposal that otherwise 

may be negotiable. Examples of 

bargaining obligation disputes include 

disagreements between an exclusive 

representative and an agency 

concerning agency claims that: 

(1) A proposal concerns a matter that 

is covered by a collective bargaining 

agreement; 

(2) Bargaining is not required because 

there has not been a change in 

bargaining-unit employees’ conditions 

of employment or because the effect of 

the change is de minimis; and 

(3) The exclusive representative is 

attempting to bargain at the wrong level 

of the agency. 

* * * * * 

(c) * * * 

(2) Affects bargaining-unit employees’ 

conditions of employment; 

(3) Enforces an ‘‘applicable law,’’ 

within the meaning of 5 U.S.C. 

7106(a)(2); 

(4) Concerns a matter negotiable at the 

election of the agency under 5 U.S.C. 

7106(b)(1); 

(5) Constitutes a ‘‘procedure’’ or 

‘‘appropriate arrangement,’’ within the 

meaning of 5 U.S.C. 7106(b)(2) and (3), 

respectively; 

(6) Is consistent with a Governmentwide rule or regulation; and 

(7) Is negotiable notwithstanding 

agency rules or regulations because: 

(i) The proposal or provision is 

consistent with agency rules or 

regulations for which a compelling need 

exists under 5 U.S.C. 7117(a)(2); 

(ii) The agency rules or regulations 

violate applicable law, rule, regulation, 

or appropriate authority outside the 

agency; 

(iii) The agency rules or regulations 

were not issued by the agency or by any 

primary national subdivision of the 

agency; 

(iv) The exclusive representative 

represents an appropriate unit including 

not less than a majority of the 

employees in the rule- or regulationissuing agency or primary national 

subdivision; or 

(v) No compelling need exists for the 

rules or regulations to bar negotiations. 

* * * * * 

(e) Proposal means any matter offered 

for bargaining that has not been agreed 

to by the parties. If a petition for review 

concerns more than one proposal, then 

the term ‘‘proposal’’ includes each 

proposal concerned. 

(f) Provision means any matter that 

has been disapproved by the agency 

head on review pursuant to 5 U.S.C. 

7114(c). If a petition for review concerns 

more than one provision, then the term 

‘‘provision’’ includes each provision 

concerned. 

* * * * * 

■ 4. Revise § 2424.10 to read as follows: 

§ 2424.10 Collaboration and Alternative 

Dispute Resolution Program. 

Where an exclusive representative 

and an agency are unable to resolve 

disputes that arise under this part, they 

may request assistance from the 

Collaboration and Alternative Dispute 

Resolution (CADR) Program or the 

Office of Case Intake and Publication 

(CIP), which will refer requests to the 

CADR Program. Upon request, as 

resources permit, and as agreed upon by 

the parties, CADR representatives will 

attempt to assist the parties to resolve 

these disputes. Parties seeking 

information or assistance under this part 

may call the CADR Office at (771) 444– 

5802 or the Office of CIP at (771) 444– 

5805, or write those offices at 1400 K 

Street NW, Washington, DC 20424– 

0001. A brief summary of CADR 

activities is available on the internet at 

www.flra.gov. 

■ 5. Revise § 2424.11 to read as follows: 

§ 2424.11 Requesting and providing 

written allegations concerning the duty to 

bargain. 

(a) General. An exclusive 

representative may file a petition for 

review after receiving a written 

allegation concerning the duty to 

bargain from the agency. An exclusive 

representative also may file a petition 

for review if it requests in writing that 

the agency provide it with a written 

allegation concerning the duty to 

bargain and the agency does not 

respond to the request within ten (10) 

days. 

(b) Agency allegation in response to 

request. The agency has an obligation to 

respond within ten (10) days to a 

written request by the exclusive 

representative for a written allegation 

concerning the duty to bargain. The 

agency’s allegation in response to the 

exclusive representative’s request must 

be in writing and must be served in 

accord with § 2424.2(g). 

© Unrequested agency allegation. If 

an agency provides an exclusive 

representative with an unrequested 

written allegation concerning the duty 

to bargain, then the exclusive 

representative may either file a petition 

for review under this part, or continue 

to bargain and subsequently request in 

writing a written allegation concerning 

the duty to bargain, if necessary. If the 

exclusive representative chooses to file 

a petition for review based on an 

unrequested written allegation 

concerning the duty to bargain, then the 

time limit in § 2424.21(a)(1) applies. 

■ 6. Amend § 2424.21 by revising 

paragraph (b) to read as follows: 

§ 2424.21 Time limits for filing a petition 

for review. 

* * * * * 

(b) If the agency has not served a 

written allegation on the exclusive 

representative within ten (10) days after 

the agency’s principal bargaining 

representative has received a written 

request for such allegation, as provided 

in § 2424.11(a), then the petition may be 

filed at any time, subject to the 

following: 

(1) If the agency serves a written 

allegation on the exclusive 

representative more than ten (10) days 

after receiving a written request for such 

allegation, then the petition must be 

filed within fifteen (15) days after the 

date of service of that allegation on the 

exclusive representative. 

(2) [Reserved] 

■ 7. Revise § 2424.22 to read as follows: 

§ 2424.22 Exclusive representative’s 

petition for review; purpose; divisions; 

content; service. 

(a) Purpose. The purpose of a petition 

for review is to initiate a negotiability 

proceeding and provide the agency with 

notice that the exclusive representative 

requests a decision from the Authority 

that a proposal or provision is within 

the duty to bargain or not contrary to 

law, respectively. 

(b) Divisions. The petition will be 

resolved according to how the exclusive 

representative divides matters into 

proposals or provisions. If the exclusive 

representative seeks a negotiability 

determination on particular matters 

standing alone, then the exclusive 

representative must submit those 

matters as distinct proposals or 

provisions. However, the exclusive 

representative will have an opportunity 

to divide proposals or provisions into 

separate parts when the exclusive 

representative files a response under 

§ 2424.25. 

I Content. You must file a petition for 

review on a form that the Authority has 

provided for that purpose, or in a 

substantially similar format. You meet 

this requirement if you file your petition 


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electronically through use of the eFiling 

system on the FLRA’s website at 

www.flra.gov. That website also 

provides copies of petition forms. You 

must date the petition, unless you file 

it electronically through use of the 

FLRA’s eFiling system. And, regardless 

of how you file the petition, you must 

ensure that it includes the following: 

(1) The exact wording and 

explanation of the meaning of the 

proposal or provision, including an 

explanation of special terms or phrases, 

technical language, or other words that 

are not in common usage, as well as 

how the proposal or provision is 

intended to work; 

(2) Specific citation to any law, rule, 

regulation, section of a collective 

bargaining agreement, or other authority 

that you rely on in your argument or 

that you reference in the proposal or 

provision, and a copy of any such 

material that the Authority cannot easily 

access (which you may upload as 

attachments if you file the petition 

electronically through use of the FLRA’s 

eFiling system); 

(i) An explanation of how the cited 

law, rule, regulation, section of a 

collective bargaining agreement, or 

other authority relates to your argument, 

proposal, or provision; 

(ii) [Reserved] 

(3) A statement as to whether the 

proposal or provision is also involved in 

an unfair labor practice charge under 

part 2423 of this subchapter, a grievance 

pursuant to the parties’ negotiated 

grievance procedure, or an impasse 

procedure under part 2470 of this 

subchapter, and whether any other 

petition for review has been filed 

concerning a proposal or provision 

arising from the same bargaining or the 

same agency head review; 

(i) Documents relevant to the 

statement, including a copy of any 

related unfair labor practice charge, 

grievance, request for impasse 

assistance, or other petition for review; 

and 

(ii) [Reserved] 

(4) Any request for a hearing before 

the Authority and the reasons 

supporting such request, with the 

understanding that the Authority rarely 

grants such requests. 

■ 8. Revise § 2424.23 to read as follows: 

§ 2424.23 Post-petition conferences; 

conduct and record. 

(a) Scheduling a post-petition 

conference. The FLRA will, in its 

discretion, schedule a post-petition 

conference to be conducted by an FLRA 

representative by telephone, in person, 

or through other means. Unless the 

Authority or an FLRA representative 

directs otherwise, parties must observe 

all time limits in this part, regardless of 

whether a post-petition conference is 

conducted or may be conducted. 

(b) Conduct of conference. The postpetition conference will be conducted 

with representatives of the exclusive 

representative and the agency, who 

must be prepared and authorized to 

discuss, clarify, and resolve matters 

including the following: 

(1) The meaning of the proposal or 

provision in dispute; 

(2) Any disputed factual issue(s); 

(3) Negotiability dispute objections 

and bargaining obligation claims 

regarding the proposal or provision; and 

(4) Status of any proceedings— 

including an unfair labor practice 

charge under part 2423 of this 

subchapter, a grievance under the 

parties’ negotiated grievance procedure, 

or an impasse procedure under part 

2470 of this subchapter—that are 

directly related to the negotiability 

petition. 

Ö Discretionary extension of time 

limits. The FLRA representative may, on 

determining that it will effectuate the 

purposes of the Federal Service LaborManagement Relations Statute, 5 U.S.C. 

7101 et seq., and this part, extend the 

time limits for filing the agency’s 

statement of position and any 

subsequent filings. 

(d) Record of the conference. After the 

post-petition conference has been 

completed, the FLRA representative will 

prepare, and the FLRA will serve on the 

parties, a written record that includes 

whether the parties agree on the 

meaning of the disputed proposal or 

provision, the resolution of any 

disputed factual issues, and any other 

appropriate matterÖ 

(e) Hearings. Instead of, or in addition 

to, conducting a post-petition 

conference, the Authority may exercise 

its discretion under § 2424.31 to hold a 

hearing or take other appropriate action 

to aid in decision making. 

■ 9. Revise § 2424.24 to read as follows: 

§ 2424.24 Agency’s statement of position; 

purpose; time limits; content; service. 

(a) Purpose. The purpose of the 

agency’s statement of position is to 

inform the Authority and the exclusive 

representative why a proposal or 

provision is outside the duty to bargain 

or contrary to law, respectively, and 

whether the agency disagrees with any 

facts or arguments made by the 

exclusive representative in the petition. 

(b) Time limit for filing. Unless the 

time limit for filing has been extended 

pursuant to § 2424.23 or part 2429 of 

this subchapter, the agency must file its 

statement of position within thirty (30) 

days after the date the head of the 

agency receives a copy of the petition 

for review. 

I Content. You must file your 

statement of position on a form that the 

Authority has provided for that purpose, 

or in a substantially similar format. You 

meet this requirement if you file your 

statement electronically through use of 

the eFiling system on the FLRA’s 

website at www.flra.gov. That website 

also provides copies of statement forms. 

You must date your statement, unless 

you file it electronically through use of 

the eFiling system. And, regardless of 

how you file your statement, your 

statement must: 

(1) Withdraw either: 

(i) The allegation that the duty to 

bargain in good faith does not extend to 

the exclusive representative’s proposal, 

or 

(ii) The disapproval of the provision 

under 5 U.S.C. 7114(c); or 

(2) Set forth in full your position on 

any matters relevant to the petition that 

you want the Authority to consider in 

reaching its decision, including: A 

statement of the arguments and 

authorities supporting any bargaining 

obligation or negotiability claims; any 

disagreement with claims that the 

exclusive representative made in the 

petition for review; specific citation to, 

and explanation of the relevance of, any 

law, rule, regulation, section of a 

collective bargaining agreement, or 

other authority on which you rely; and 

a copy of any such material that the 

Authority may not easily access (which 

you may upload as attachments if you 

file your statement of position 

electronically through use of the FLRA’s 

eFiling system). Your statement of 

position must also include the 

following: 

(i) If different from the exclusive 

representative’s position, an explanation 

of the meaning the agency attributes to 

the proposal or provision and the 

reasons for disagreeing with the 

exclusive representative’s explanation 

of meaning; 

(ii) If different from the exclusive 

representative’s position, an explanation 

of how the proposal or provision would 

work, and the reasons for disagreeing 

with the exclusive representative’s 

explanation; 

(3) Status of any proceedings— 

including an unfair labor practice 

charge under part 2423 of this 

subchapter, a grievance under the 

parties’ negotiated grievance procedure, 

or an impasse procedure under part 

2470 of this subchapter—that are 

directly related to the negotiability 

petition, and whether any other petition 

for review has been filed concerning a 


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proposal or provision arising from the 

same bargaining or the same agency 

head review; 

(i) If they have not already been 

provided with the petition, documents 

relevant to the status updates, including 

a copy of any related unfair labor 

practice charge, grievance, request for 

impasse assistance, or other petition for 

review; and 

(ii) [Reserved] 

(4) Any request for a hearing before 

the Authority and the reasons 

supporting such request, with the 

understanding that the Authority rarely 

grants such requests. 

(d) Service. A copy of the agency’s 

statement of position, including all 

attachments, must be served in accord 

with § 2424.2(g). 

■ 10. Revise paragraphs (a) through (c) 

of § 2424.25 to read as follows: 

§ 2424.25 Response of the exclusive 

representative; purpose; time limits; 

content; severance; service. 

(a) Purpose. The purpose of the 

exclusive representative’s response is to 

inform the Authority and the agency 

why, despite the agency’s arguments in 

its statement of position, the proposal or 

provision is within the duty to bargain 

or not contrary to law, respectively, and 

whether the exclusive representative 

disagrees with any facts or arguments in 

the agency’s statement of position. 

(b) Time limit for filing. Unless the 

time limit for filing has been extended 

pursuant to § 2424.23 or part 2429 of 

this subchapter, within fifteen (15) days 

after the date the exclusive 

representative receives a copy of an 

agency’s statement of position, the 

exclusive representative must file a 

response. 

© Content. You must file your 

response on a form that the Authority 

has provided for that purpose, or in a 

substantially similar format. You meet 

this requirement if you file your 

response electronically through use of 

the eFiling system on the FLRA’s 

website at www.flra.gov. That website 

also provides copies of response forms. 

With the exception of severance under 

paragraph (d) of this section, you must 

limit your response to the matters that 

the agency raised in its statement of 

position. You must date your response, 

unless you file it electronically through 

use of the FLRA’s eFiling system. And, 

regardless of how you file your 

response, you must ensure that it 

identifies any disagreement with the 

agency’s bargaining obligation or 

negotiability claims. You must: State the 

arguments and authorities supporting 

your opposition to any agency 

argument; include specific citation to, 

and explanation of the relevance of, any 

law, rule, regulation, section of a 

collective bargaining agreement, or 

other authority on which you rely; and 

provide a copy of any such material that 

the Authority may not easily access 

(which you may upload as attachments 

if you file your response electronically 

through use of the FLRA’s eFiling 

system). You are not required to repeat 

arguments that you made in your 

petition for review. If not included in 

the petition for review, then you must 

state the arguments and authorities 

supporting your position on all of the 

relevant bargaining obligation and 

negotiability matters identified in 

§ 2424.2(a) and (c), respectively. 

(d) Severance. The exclusive 

representative may, of its own accord, 

accomplish the severance of a 

previously submitted proposal or 

provision. To accomplish severance, the 

exclusive representative must identify 

the proposal or provision that the 

exclusive representative is severing and 

set forth the exact wording of the newly 

severed portion(s). Further, as part of 

the exclusive representative’s 

explanation and argument about why 

the newly severed portion(s) are within 

the duty to bargain or not contrary to 

law, the exclusive representative must 

explain how the severed portion(s) 

stand alone with independent meaning, 

and how the severed portion(s) would 

operate. The explanation and argument 

in support of the severed portion(s) 

must meet the same requirements for 

specific information set forth in 

paragra©(c) of this section, and must 

satisfy the exclusive representative’s 

burdens under § 2424.32. 

* * * * * 

■ 11. Revise § 2424.26 to read as 

follows: 

§ 2424.26 Agency’s reply; purpose; time 

limits; content; service. 

(a) Purpose. The purpose of the 

agency’s reply is to inform the Authority 

and the exclusive representative 

whether and why it disagrees with any 

facts or arguments made for the first 

time in the exclusive representative’s 

response. 

(b) Time limit for filing. Unless the 

time limit for filing has been extended 

pursuant to § 2424.23 or part 2429 of 

this subchapter, within fifteen (15) days 

after the date the agency receives a copy 

of the exclusive representative’s 

response to the agency’s statement of 

position, the agency may file a reply. 

(c) Content. You must file your reply 

on a form that the Authority has 

provided for that purpose, or in a 

substantially similar format. You meet 

this requirement if you file your reply 

electronically through use of the eFiling 

system on the FLRA’s website at 

www.flra.gov. That website also 

provides copies of reply forms. You 

must limit your reply to matters that the 

exclusive representative raised for the 

first time in its response. You must date 

your reply, unless you file it 

electronically through use of the FLRA’s 

eFiling system. And, regardless of how 

you file your reply, you must ensure 

that it identifies any disagreement with 

the exclusive representative’s assertions 

in its response, including your 

disagreements with assertions about the 

bargaining obligation and negotiability 

matters identified in § 2424.2(a) and (c), 

respectively. You must: State the 

arguments and authorities supporting 

your position; include specific citation 

to, and explanation of the relevance of, 

any law, rule, regulation, section of a 

collective bargaining agreement, or 

other authority on which you rely; and 

provide a copy of any such material that 

the Authority may not easily access 

(which you may upload as attachments 

if you file your reply electronically 

through use of the FLRA’s eFiling 

system). You are not required to repeat 

arguments that you made in your 

statement of position. 

(d) Service. A copy of the agency’s 

reply, including all attachments, must 

be served in accord with § 2424.2(g). 

■ 12. Revise § 2424.27 to read as 

follows: 

§ 2424.27 Additional submissions to the 

Authority. 

The Authority will not consider any 

submission filed by any party other than 

those authorized under this part, 

provided however that the Authority 

may, in its discretion, grant permission 

to file an additional submission based 

on a written request showing 

extraordinary circumstances by any 

party. The additional submission must 

be filed with the written request. All 

documents filed under this section must 

be served in accord with § 2424.2(g). 

■ 13. Revise § 2424.30 to read as 

follows: 

§ 2424.30 Procedure through which the 

petition for review will be resolved. 

(a) Exclusive representative has filed 

related unfair labor practice charge or 

grievance alleging an unfair labor 

practice. Except for proposals or 

provisions that are the subject of an 

agency’s compelling need claim under 5 

U.S.C. 7117(a)(2), the Authority will 

dismiss a petition for review when an 

exclusive representative files an unfair 

labor practice charge pursuant to part 

2423 of this subchapter or a grievance 

alleging an unfair labor practice under 


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the parties’ negotiated grievance 

procedure, and the charge or grievance 

concerns issues directly related to the 

petition for review filed pursuant to this 

part. The dismissal will be without 

prejudice to the right of the exclusive 

representative to refile the petition for 

review after the unfair labor practice 

charge or grievance has been resolved 

administratively, including resolution 

pursuant to an arbitration award that 

has become final and binding. No later 

than thirty (30) days after the date on 

which the unfair labor practice charge 

or grievance is resolved 

administratively, the exclusive 

representative may refile the petition for 

review, and the Authority will 

determine whether resolution of the 

petition is still required. For purposes of 

this subsection, a grievance is resolved 

administratively when: 

(1) The exclusive representative 

withdraws the grievance; 

(2) The parties mutually resolve the 

grievance; 

(3) An arbitrator has issued an award 

resolving the grievance, and the 30-day 

period under 5 U.S.C. 7122(b) has 

passed without an exception being filed; 

or 

(4) An arbitrator has issued an award 

resolving the grievance, a party has filed 

an exception to that award, and the 

Authority has issued a decision 

resolving that exception. 

(b) Exclusive representative has not 

filed related unfair labor practice charge 

or grievance alleging an unfair labor 

practice. The petition will be processed 

as follows: 

(1) No bargaining obligation dispute 

exists. The Authority will resolve the 

petition for review under the procedures 

of this part. 

(2) A bargaining obligation dispute 

exists. The exclusive representative may 

have an opportunity to file an unfair 

labor practice charge pursuant to part 

2423 of this subchapter or a grievance 

under the parties’ negotiated grievance 

procedure concerning the bargaining 

obligation dispute, and, where the 

exclusive representative pursues either 

of these courses, the Authority will 

proceed in accord with paragraph (a) of 

this section. If the exclusive 

representative does not file an unfair 

labor practice charge or grievance 

concerning the bargaining obligation 

dispute, then the Authority will proceed 

to resolve all disputes necessary for 

disposition of the petition unless, in its 

discretion, the Authority determines 

that resolving all disputes is not 

appropriate because, for example, 

resolution of the bargaining obligation 

dispute under this part would unduly 

delay resolution of the negotiability 

dispute, or the procedures in another, 

available administrative forum are better 

suited to resolve the bargaining 

obligation dispute. 

■ 14. Amend § 2424.31 by revising the 

heading, introductory text, and 

paragraph © to read as follows: 

§ 2424.31 Hearings and other appropriate 

action. 

When necessary to resolve disputed 

issues of material fact in a negotiability 

or bargaining obligation dispute, or 

when it would otherwise aid in decision 

making, the Authority, or its designated 

representative, may, in its discretion: 

* * * * * 

(c) Refer the matter to a hearing 

pursuant to 5 U.S.C. 7117(b)(3) or (c)(5); 

or 

* * * * * 

■ 15. Revise § 2424.32 to read as 

follows: 

§ 2424.32 Parties’ responsibilities; failure 

to raise, support, or respond to arguments; 

failure to participate in conferences or 

respond to Authority orders. 

(a) Responsibilities of the exclusive 

representative. The exclusive 

representative has the burden of 

explaining the meaning, operation, and 

effects of the proposal or provision; and 

raising and supporting arguments that 

the proposal or provision is within the 

duty to bargain, within the duty to 

bargain at the agency’s election, or not 

contrary to law, respectively. 

(b) Responsibilities of the agency. The 

agency has the burden of explaining the 

agency’s understanding of the meaning, 

operation, and effects of the proposal or 

provision, if the agency disagrees with 

the exclusive representative’s 

explanations; and raising and 

supporting arguments that the proposal 

or provision is outside the duty to 

bargain or contrary to law, respectively. 

(c) Responsibilities to sufficiently 

explain. Each party has the burden to 

give sufficiently detailed explanations 

to enable the Authority to understand 

the party’s position regarding the 

meaning, operation, and effects of a 

proposal or provision. A party’s failure 

to provide such explanations may affect 

the Authority’s decision in a manner 

that is adverse to the party. 

(d) Failure to raise, support, or 

respond to arguments. 

(1) Failure to raise and support an 

argument may, in the Authority’s 

discretion, be deemed a waiver of such 

argument. Absent good cause: 

(i) Arguments that could have been 

but were not raised by an exclusive 

representative in the petition for review, 

or made in its response to the agency’s 

statement of position, may not be made 

in this or any other proceeding; and 

(ii) Arguments that could have been 

but were not raised by an agency in the 

statement of position, or made in its 

reply to the exclusive representative’s 

response, may not be raised in this or 

any other proceeding. 

(2) Failure to respond to an argument 

or assertion raised by the other party 

may, in the Authority’s discretion, be 

treated as conceding such argument or 

assertio©(e) Failure to participate in 

conferences; failure to respond to 

Authority orders. Where a party fails to 

participate in a post-petition conference 

pursuant to § 2424.23, a direction or 

proceeding under § 2424.31, or 

otherwise fails to provide timely or 

responsive information pursuant to an 

Authority order, including an Authority 

procedural order directing the 

correction of technical deficiencies in 

filing, the Authority may, in addition to 

those actions set forth in paragraph (d) 

of this section, take any other action 

that, in the Authority’s discretion, it 

deems appropriate, including dismissal 

of the petition for review (with or 

without prejudice to the exclusive 

representative’s refiling of the petition 

for review), and granting the petition for 

review and directing bargaining or 

rescission of an agency head 

disapproval under 5 U.S.C. 7114(c) 

(with or without conditions). 

■ 16. Amend § 2424.40 by revising 

paragraphs (b) and (c) to read as follows: 

§ 2424.40 Authority decision and order. 

* * * * * 

(b) Cases involving proposals. If the 

Authority finds that the duty to bargain 

extends to the proposal, then the 

Authority will order the agency to 

bargain concerning the proposal. If the 

Authority finds that the duty to bargain 

does not extend to the proposal, then 

the Authority will dismiss the petition 

for review as to that proposal. If the 

Authority finds that the proposal is 

bargainable only at the election of the 

agency, then the Authority will so state. 

If the Authority resolves a negotiability 

dispute by finding that a proposal is 

within the duty to bargain, but there are 

unresolved bargaining obligation 

dispute claims, then the Authority will 

order the agency to bargain in the event 

its bargaining obligation claims are 

resolved in a manner that requires 

bargaining. 

(d) Cases involving provisions. If the 

Authority finds that a provision is not 

contrary to law, rule, or regulation, or is 

bargainable at the election of the agency, 

then the Authority will direct the 

agency to rescind its disapproval of 


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such provision in whole or in part as 

appropriate. If the Authority finds that 

a provision is contrary to law, rule, or 

regulation, then the Authority will 

dismiss the petition for review as to that 

provision. 

■ 17. Revise § 2424.41 to read as 

follows: 

§ 2424.41 Compliance. 

The exclusive representative may 

report to the appropriate Regional 

Director an agency’s failure to comply 

with an order issued in accordance with 

§ 2424.40. The exclusive representative 

must report such failure within a 

reasonable period of time following 

expiration of the 60-day period under 5 

U.S.C. 7123(a), which begins on the date 

of issuance of the Authority order. If, on 

referral from the Regional Director, the 

Authority finds such a failure to comply 

with its order, the Authority will take 

whatever action it deems necessary to 

secure compliance with its order, 

including enforcement under 5 U.S.C. 

7123(b). 

■ 18. Amend § 2424.50 by revising the 

introductory text to read as follows: 

§ 2424.50 Illustrative criteria. 

A compelling need exists for an 

agency rule or regulation concerning 

any condition of employment when the 

rule or regulation was issued by the 

agency or any primary national 

subdivision of the agency, and the 

agency demonstrates that the rule or 

regulation satisfies one of the following 

illustrative criteria: 

* * * * * 

Approved: August 31, 2023. 

Rebecca J. Osborne, 

Federal Register Liaison, Federal Labor 

Relations Authority. 

[FR Doc. 2023–19269 Filed 9–11–23; 8:45 am] 

BILLING CODE 7627–01–P 

DEPARTMENT OF TRANSPORTATION 

Federal Aviation Administration 

14 CFR Part 71 

[Docket No. FAA–2023–1389; Airspace 

Docket No. 23–AGL–19] 

RIN 2120–AA66 

Amendment of Class E Airspace; 

Quincy, IL 

AGENCY: Federal Aviation 

Administration (FAA), DOT. 

ACTION: Final rule. 

SUMMARY: This action amends the Class 

E airspace at Quincy, IL. This action is 

the result of an airspace review caused 

by the decommissioning of the Quincy 

very high frequency omnidirectional 

range (VOR) as part of the VOR 

Minimum Operating Network (MON) 

Program. The name and geographic 

coordinates of the airport and name of 

the navigational aid are also being 

updated to coincide with the FAA’s 

aeronautical database. 

DATES: Effective 0901 UTC, November 

30, 2023. The Director of the Federal 

Register approves this incorporation by 

reference action under 1 CFR part 51, 

subject to the annual revision of FAA 

Order JO 7400.11 and publication of 

conforming amendments. 

ADDRESSES: A copy of the Notice of 

Proposed Rulemaking (NPRM), all 

comments received, this final rule, and 

all background material may be viewed 

online at www.regulations.gov using the 

FAA Docket number. Electronic 

retrieval help and guidelines are 

available on the website. It is available 

24 hours each day, 365 days each year. 

FAA Order JO 7400.11G, Airspace 

Designations and Reporting Points, and 

subsequent amendments can be viewed 

online at www.faa.gov/air_traffic/ 

publications/. You may also contact the 

Rules and Regulations Group, Office of 

Policy, Federal Aviation 

Administration, 800 Independence 

Avenue SW, Washington DC 20591; 

telephone: (202) 267–8783. 

FOR FURTHER INFORMATION CONTACT: 

Jeffrey Claypool, Federal Aviation 

Administration, Operations Support 

Group, Central Service Center, 10101 

Hillwood Parkway, Fort Worth, TX 

76177; telephone (817) 222–5711. 

SUPPLEMENTARY INFORMATION: 

Authority for This Rulemaking 

The FAA’s authority to issue rules 

regarding aviation safety is found in 

Title 49 of the United States Code. 

Subtitle I, Section 106 describes the 

authority of the FAA Administrator. 

Subtitle VII, Aviation Programs, 

describes in more detail the scope of the 

agency’s authority. This rulemaking is 

promulgated under the authority 

described in Subtitle VII, Part A, 

Subpart I, Section 40103. Under that 

section, the FAA is charged with 

prescribing regulations to assign the use 

of airspace necessary to ensure the 

safety of aircraft and the efficient use of 

airspace. This regulation is within the 

scope of that authority as it amends the 

Class E surface airspace and the Class E 

airspace extending upward from 700 

feet above the surface at Quincy 

Regional Airport-Baldwin Field, Quincy 

IL, to support instrument flight rule 

(IFR) operations at this airport. 

History 

The FAA published an NPRM for 

Docket No. FAA–2023–1389 in the 

Federal Register (88 FR 41337; June 26, 

2023) proposing to amend the Class E 

airspace at Quincy IL. Interested parties 

were invited to participate in this 

rulemaking effort by submitting written 

comments on the proposal to the FAA. 

No comments were received. 

Incorporation by Reference 

Class E airspace designations are 

published in paragraphs 6002 and 6005 

of FAA Order JO 7400.11, Airspace 

Designations and Reporting Points, 

which is incorporated by reference in 14 

CFR 71.1 on an annual basis. This 

document amends the current version of 

that order, FAA Order JO 7400.11G, 

dated August 19, 2022, and effective 

September 15, 2022. FAA Order JO 

7400.11G is publicly available as listed 

in the ADDRESSES section of this 

document. These amendments will be 

published in the next update to FAA 

Order JO 7400.11. 

FAA Order JO 7400.11G lists Class A, 

B, C, D, and E airspace areas, air traffic 

service routes, and reporting points. 

The Rule 

This amendment to 14 CFR part 71: 

Modifies the Class E surface airspace 

to within a 4.3-mile (increased from a 

4.2-mile) radius of Quincy Regional 

Airport-Baldwin Field, Quincy, IL; 

removes the Quincy VORTAC and 

associated extension from the airspace 

legal description; updates the name 

(previously Quincy Municipal Baldwin 

Field) and geographic coordinates of the 

airport to coincide with the FAA’s 

aeronautical database; and replaces the 

outdated terms ‘‘Notice to Airmen’’ with 

‘‘Notice to Air Missions’’ and ‘‘Airport/ 

Facility Directory’’ with ‘‘Chart 

Supplement’’; 

And modifies the Class E airspace 

extending upward from 700 feet above 

the surface to within a 6.8-mile 

(decreased from a 7.1-mile) radius of 

Quincy Regional Airport-Baldwin Field; 

amends the extension to the southwest 

to within 4 miles each side (previously 

4.4 miles northwest and 7 miles 

southeast) of the 220° bearing from the 

Quincy RGNL-Baldwin FLD: RWY 04— 

Marker Beacon (previously Quincy ILS 

localizer southwest course) extending 

from the 6.8-mile (previously 7-mile) 

radius of the Quincy Regional AirportBaldwin Field to 9.8 miles (previously 

10.4 miles) southwest of the Quincy 

RGNL-Baldwin FLD: RWY 04—Marker 

Beacon (previously Quincy LOM/NDB); 

and updates the name and geographic 

coordinates of Quincy Regional AirportVerDate Sep<11>2014 16:24 Sep 11, 2023 Jkt 259001 PO 00000 Frm 00016 Fmt 4700 Sfmt 4700 E:\FR\FM\12SER1.SGM 12SER1

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