[Federal Register Volume 61, Number 110 (Thursday, June 6, 1996)]
[Proposed Rules]
[Pages 28798-28803]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-14098]



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FEDERAL LABOR RELATIONS AUTHORITY
5 CFR Parts 2470, 2471, 2472, and 2473


Federal Service Impasses Panel; General; Procedures of the Panel; 
Impasses Arising Pursuant to Agency Determinations Not to Establish or 
to Terminate Flexible or Compressed Work Schedules; Miscellaneous 
Requirements

AGENCY: Federal Service Impasses Panel, FLRA.

ACTION: Notice of proposed rulemaking with request for comments.

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SUMMARY: The Federal Service Impasses Panel proposes to revise its 
regulations to take advantage of existing technology and to make them 
more easily understood by agencies, labor organizations, and 
individuals. The proposed revisions will allow parties to file requests 
for Panel assistance, and other documents, by facsimile transmission 
and will generally reorganize and modify those portions of the rules 
pertaining to filing and service. A proposed new section will establish 
procedures by which a party to a Panel proceeding may seek to obtain a 
subpena. These proposed revisions will make the regulations clearer and 
more user-friendly and will provide quicker access to the Panel's 
procedures. By separate notice published today, the Federal Labor 
Relations Authority is providing interested persons with the 
opportunity to submit written comments concerning, among other things, 
contemplated revisions to the FLRA's regulations to permit the filing 
and/or service of documents by facsimile transmissions.

DATES: Written comments in response to this notice will be considered 
if received by close of business on July 8, 1996. Extensions of time 
will not be granted.

ADDRESSES: Mail or deliver written comments to the Federal Service 
Impasses Panel, 607 14th Street, NW., Suite 220, Washington, D.C. 
20424-0001. Copies of all written comments will be available for 
inspection and photocopying between 8 a.m. and 5 p.m., Monday through 
Friday, at the above address.

FOR FURTHER INFORMATION CONTACT: Linda A. Lafferty, Executive Director, 
Federal Service Impasses Panel, 607 14th Street, NW., Suite 220, 
Washington, D.C. 20424-0001. Telephone (202) 482-6670.

SUPPLEMENTARY INFORMATION: The Federal Service Impasses Panel 
established an internal work group to study and evaluate its 
regulations. The following section-by-section analysis reflects 
proposed revisions to Parts 2470--General; Part 2471--Procedures of the 
Panel; and Part 2472--Impasses Arising Pursuant to Agency 
Determinations Not to Establish or to Terminate Flexible or Compressed 
Work Schedules. Following this analysis, an explanation of proposed 
Part 2473-- Miscellaneous Requirements, which contains a new section on 
subpenas, is provided.

Part 2470

Section 2470.1

    A new last sentence has been added to reflect the Panel's 
longstanding policy of encouraging parties to resolve disputes on terms 
that are mutually agreeable without the need for Panel action.

Part 2471

Section 2471.2

    A form is available for use in filing a request for assistance with 
the Panel, but its use is not required, provided that the request 
includes all of the information set forth in Sec. 2471.3. This provides 
a filing party with the choice of using the prepared form or submitting 
the required information in some other format. The Panel's address and 
phone number are updated to reflect its current office location.

Section 2471.3

    Requiring the filing party to provide the addresses, phone numbers, 
and facsimile numbers of the parties to a dispute will facilitate 
communication between the Panel and parties and will result in enhanced 
customer service. The revision in paragraph (b)(4) reflects 
developments in FLRA case law, set forth in Commander, Carswell Air 
Force Base, Texas and American Federation of Government Employees, 
Local 1364, 31 FLRA 620 (1988), which allows the Panel to resolve duty-
to-bargain questions under certain circumstances.

Section 2471.4

    The Panel's address and phone number are updated to reflect its 
current office location. The Panel's facsimile number is provided 
consistent with the changes described in Sec. 2471.5 which allow filing 
of requests for assistance, and other documents, by this method.

Section 2471.5

    The Panel recognizes that the use of facsimile systems have become 
more prevalent in both the private and public sectors and that private 
delivery services are commonly used as an alternative to the United 
States Postal Service. After careful consideration, it has been 
determined that allowing the limited use of these methods of 
communication will provide parties with quicker access to the Panel's 
services.
    Paragraph (a) establishes the requirements for filing and service 
of requests for Panel assistance and requests for approval of a binding 
arbitration procedure. Paragraph (a)(1) allows a filing party to submit 
a request by a variety of methods, including facsimile transmission and 
private delivery service. A party filing a request by facsimile 
transmission must submit an original for the Panel's records, but 
failure to do so shall not affect the validity of the filing, if 
otherwise proper. Paragraph (a)(2), which establishes service 
requirements, provides the same variety of methods as paragraph (a)(1), 
except that the filing party may use facsimile transmission only with 
the permission of the person receiving the request.
    Paragraph (b) establishes the requirements for filing and service 
of documents other than requests for assistance. Paragraphs (b)(1) and 
(b)(2) provide for filing and service of documents with the Panel by 
the same methods established in paragraph (a)(1) and (a)(2) except that 
advance permission is required before a document other than a request 
may be filed with the Panel by facsimile transmission.
    Paragraph (d) establishes a method for determining the date of 
service for documents served by private delivery service or by 
facsimile transmission.
    Paragraph (e) establishes a revised format for documents filed with 
the Panel; it also states affirmatively that nonconforming documents 
may, at the Panel's discretion, be rejected.

Section 2471.6

    Paragraph (a)(2) establishes that when the Panel asserts 
jurisdiction, it may recommend procedures for impasse resolution and/or 
directly assist the parties through whatever methods the Panel 
considers appropriate. The most common procedures used by the Panel are 
now listed.

[[Page 28799]]

    Paragraph (b) provides a streamlined approach for handling requests 
for approval of a binding arbitration procedure. All requests filed 
under this section will now be approved or disapproved normally within 
5 workdays.

Section 2471.7

    The amended wording clarifies that a notice of hearing is issued to 
the parties only when the Panel appoints one or more of its designees 
to conduct a factfinding hearing. Such a notice will not be issued when 
a hearing is conducted by a private factfinder.

Section 2471.8

    The heading is changed slightly to clarify that the provisions of 
the section apply to factfinding, and other, hearings.

Section 2471.9

    Since the reports and recommendations referred to in Sec. 2471.7, 
2471.8, and 2471.9 are issued following a factfinding hearing, the 
first sentence of paragraph (a) is amended accordingly.

Part 2472

Section 2472.2

    Former paragraphs (d) through (n) are renumbered to become new 
paragraphs (e) through (o). A new paragraph (d) is added which defines 
``duly authorized delegatee'' as ``an official who has been delegated 
the authority to act for the head of the agency in the matter 
concerned.'' Since the amended wording of Sec. 2472.4(a)(6) includes 
this term, its definition is provided in this section for clarity.
    New paragraph (j) is amended by eliminating the words ``arbitration 
hearing'' from the definition of the term ``hearing.'' Under 5 U.S.C. 
6131, only the Panel, acting as a body, is authorized to decide 
impasses arising from an agency determination not to establish, or to 
terminate, a flexible or compressed work schedule. Since arbitration is 
inconsistent with this statutory requirement, it is not an available 
procedural option. The reference, therefore, is deleted.

Section 2472.3

    A form is available for use in filing a request for assistance with 
the Panel in cases arising under the Federal Employees Flexible and 
Compressed Work Schedules Act, but its use is not required, provided 
that the request includes all of the information set forth in 
Sec. 2472.4. This provides a filing party with the choice of using the 
prepared form or submitting the required information in some other 
format. The Panel's address and phone number are updated to reflect its 
current office location.

Section 2472.4

    Consistent with the changes to Sec. 2471.3, paragraph (a)(1) 
requires the filing party to provide the addresses, phone numbers, and 
facsimile numbers of the parties to a dispute.
    The amendment to paragraph (a)(6) reflects the fact that in 
considering impasses under 5 U.S.C. 6131, the Panel is charged with 
deciding whether an agency-head finding, that a flexible or compressed 
work schedule has had, or would have, adverse agency impact, is 
supported by evidence. This amendment requires the filing party to 
submit the finding as part of the initial request. In addition, 
although 5 U.S.C. 6131 identifies ``the head of an agency'' as the 
individual responsible for making the finding, it is the Panel's 
experience that in most cases, the finding is actually made by some 
other individual. This being the case, evidence of a specific 
delegation of authority is required in order to comply with the terms 
of 5 U.S.C. 6131.

Section 2472.5

    These changes are consistent with those set forth in Sec. 2471.4. 
The Panel's address and phone number are updated to reflect its current 
office location. The Panel's facsimile number is provided consistent 
with the changes described in new Sec. 2472.6 which allow filing of 
requests, and other documents, by this method.

Section 2472.6

    This section is eliminated because many parties were confused as to 
their obligations under it. Since new Sec. 2472.7 provides for 
investigation of requests filed under this part, this section is 
unnecessary. Former Sec. 2472.7 through 2472.12 are renumbered to 
become Sec. 2472.6 through 2472.11, respectively.
    New Sec. 2472.6 (a) and (b) establish the same methods of filing 
and completing service as described in Sec. 2471.5 (a) and (b) except 
that no reference is made to service upon a mediation service, since 
under this part, mediation is not a prerequisite to seeking Panel 
assistance. Consistent with the amendments to Sec. 2471.5, paragraph 
(d) establishes a method for determining the date of service for 
documents served by private delivery service or by facsimile 
transmission, and paragraph (e) establishes a revised format for 
documents filed with the Panel. Paragraph (f) is revised to clarify 
that a request filed under this part must be perfected before any Panel 
action will be taken.

Section 2472.7

    Paragraph (b) is revised to set forth a more expansive list of 
procedures that are used by the Panel when considering impasses filed 
under this part.

Section 2472.8

    Consistent with the amended wording of Sec. 2471.7, this section 
clarifies that a notice of hearing is issued to the parties only when 
the Panel appoints one or more of its designees to conduct a 
factfinding hearing. Such a notice will not be issued when a hearing is 
conducted by a private factfinder.

Section 2472.10

    This section is modified to reflect the fact that reports are 
issued after factfinding hearings and not after informal conferences. 
This being the case, the reference to informal conferences is deleted.

Section 2472.11

    Paragraph (b) is modified to clarify that if the finding on which 
an agency determination under 5 U.S.C. 6131(c)(2) or (c)(3) is based is 
not supported by evidence that the schedule is likely to cause, or has 
caused, an adverse agency impact, the Panel shall take whatever action 
is appropriate. This revision clarifies that the Panel has broad 
discretion in resolving impasses, as described in 5 U.S.C. 7119.

Part 2473

Section 2473.1

    This section is added to establish a procedure whereby a party may 
seek to obtain a subpena requiring the attendance and testimony of 
witnesses at a hearing and the production of documentary or other 
evidence. Paragraph (a) identifies those individuals who may issue a 
subpena. Paragraph (b) describes the circumstances where no subpena is 
necessary. Paragraph (c) establishes the method and time limits for 
submitting a request to the Executive Director or appropriate presiding 
official during a hearing. Paragraph (d) prescribes the contents of the 
request; sets forth a standard for the granting, or denying, of a 
request; and establishes service requirements. Paragraph (e) provides a 
process for challenging a subpena through a petition to revoke. 
Paragraph (f) deals with enforcement of a subpena, and paragraph (g) 
establishes additional filing and service requirements. Paragraph (h) 
provides for witness fees and expenses.

[[Page 28800]]

List of Subjects

5 CFR Part 2470

    Government employees, Labor-management relations.

5 CFR Parts 2471, 2472, and 2473

    Administrative practice and procedure, Government employees, Labor-
management relations.
    For the reasons set forth in the preamble, the Federal Service 
Impasses Panel proposes to amend 5 CFR Ch. XIV, Parts 2470, 2471, and 
2472, and add 5 CFR Ch. XIV, Part 2473, as follows:

PART 2470--GENERAL

    1. The authority citation for Part 2470 continues to read as 
follows:

    Authority: 5 U.S.C. 7119, 7134.

    2. In Sec. 2470.1, a new last sentence is added to read as follows:


Sec. 2470.1  Purpose.

    * * * It is the policy of the Panel to encourage labor and 
management to resolve disputes on terms that are mutually agreeable at 
any stage of the Panel's procedures.

PART 2471--PROCEDURES OF THE PANEL

    3. The authority citation for Part 2471 continues to read as 
follows:

    Authority: 5 U.S.C. 7119, 7134.

    4. Section 2471.2 is revised to read as follows:


Sec. 2471.2  Request form.

    A form is available for use by the parties in filing a request for 
consideration of an impasse or approval of a binding arbitration 
procedure. Copies are available from the Office of the Executive 
Director, Federal Service Impasses Panel, 607 14th Street, NW., Suite 
220, Washington, D.C. 20424-0001. Telephone (202) 482-6670. Use of the 
form is not required provided that the request includes all of the 
information set forth in Sec. 2471.3.
    5. Section 2471.3 is amended by revising paragraphs (a)(1), (b)(1), 
and (b)(4) to read as follows:


Sec. 2471.3  Content of request.

    (a) * * *
    (1) Identification of the parties and individuals authorized to act 
on their behalf, including their addresses, telephone numbers, and 
facsimile numbers;
* * * * *
    (b) * * *
    (1) Identification of the parties and individuals authorized to act 
on their behalf, including their addresses, telephone numbers, and 
facsimile numbers;
* * * * *
    (4) Statement as to whether any of the proposals to be submitted to 
the arbitrator contain questions concerning the duty to bargain and a 
statement of each party's position concerning such questions; and
* * * * *
    6. Section 2471.4 is revised to read as follows:


Sec. 2471.4  Where to file.

    Requests to the Panel provided for in this part, and inquiries or 
correspondence on the status of impasses or other related matters, 
should be addressed to the Executive Director, Federal Service Impasses 
Panel, 607 14th Street, NW., Suite 220, Washington, D.C. 20424-0001. 
Telephone (202) 482-6670. Facsimile (202) 482-6674.
    7. Section 2471.5 is amended by revising the section heading and 
paragraphs (a), (b), (d), and (e) to read as follows:


Sec. 2471.5  Filing and service.

    (a) Filing and service of request. (1) Any party submitting a 
request for Panel consideration of an impasse or a request for approval 
of a binding arbitration procedure shall file an original and one copy 
with the Panel. A clean copy may be submitted for the original. 
Requests may be submitted in person or by registered mail, certified 
mail, regular mail, or private delivery service. Requests may also be 
accepted by the Panel if transmitted to the facsimile machine of its 
office. A party submitting a request by facsimile shall also file an 
original for the Panel's records, but failure to do so shall not affect 
the validity of the filing by facsimile, if otherwise proper.
    (2) The party submitting the request shall serve a copy of such 
request upon all counsel of record or other designated 
representative(s) of parties, upon parties not so represented, and upon 
any mediation service which may have been utilized. Service upon such 
counsel or representative shall constitute service upon the party, but 
a copy also shall be transmitted to the party. Service of a request may 
be made in person or by registered mail, certified mail, regular mail, 
or private delivery service. With the permission of the person 
receiving the request, service may be made by facsimile transmission or 
by any other agreed-upon method. When the Panel acts on a request from 
the Federal Mediation and Conciliation Service or acts on a request 
from the Executive Director under Sec. 2471.1(a), it will notify the 
parties to the dispute, their counsel of record, if any, and any 
mediation service which may have been utilized.
    (b) Filing and service of other documents. (1) Any party submitting 
a response to, or other document in connection with, a request for 
Panel consideration of an impasse or a request for approval of a 
binding arbitration procedure shall file an original and one copy with 
the Panel. A clean copy may be submitted for the original. Documents 
may be submitted to the Panel in person or by registered mail, 
certified mail, regular mail, or private delivery service. Documents 
may also be accepted by the Panel if transmitted to the facsimile 
machine of its office, but only with advance permission, which may be 
obtained by telephone. A party submitting a document by facsimile shall 
also file an original for the Panel's records, but failure to do so 
shall not affect the validity of the submission, if otherwise proper.
    (2) The party submitting the document shall serve a copy of such 
request upon all counsel of record or other designated 
representative(s) of parties, or upon parties not so represented. 
Service upon such counsel or representative shall constitute service 
upon the party, but a copy also shall be transmitted to the party. 
Service of a document may be made in person or by registered mail, 
certified mail, regular mail, or private delivery service. With the 
permission of the person receiving the document, service may be made by 
facsimile transmission or by any other agreed-upon method.
* * * * *
    (d) The date of service or date served shall be the day when the 
matter served, if properly addressed, is deposited in the U.S. mail or 
is delivered in person or is deposited with a private delivery service 
that will provide a record showing the date the document was tendered 
to the delivery service. Where service is made by facsimile 
transmission, the date of service shall be the date on which 
transmission is received.
    (e) Unless otherwise provided by the Panel or its designated 
representatives, any document or paper filed with the Panel under this 
section, together with any enclosure filed therewith, shall be 
typewritten on 8\1/2\ x 11 inch plain white paper, shall have margins 
no less than 1 inch on each side, shall be in typeface no smaller than 
10 characters per inch, and shall be numbered consecutively. 
Nonconforming papers may, at the Panel's discretion, be rejected.

[[Page 28801]]

    8. Section 2471.6 is amended by revising the section heading and 
paragraphs (a)(2) and (b) to read as follows:


Sec. 2471.6  Investigation of request; Panel procedures; approval of 
binding arbitration.

    (a) * * *
    (1) * * *
    (2) Assert jurisdiction and--
    (i) Recommend to the parties procedures for the resolution of the 
impasse; and/or
    (ii) Assist the parties in resolving the impasse through whatever 
methods and procedures the Panel considers appropriate. The procedures 
utilized by the Panel may include, but are not limited to: informal 
conferences with a Panel designee; factfinding (by a Panel designee or 
a private factfinder); written submissions; show cause orders; oral 
presentations to the Panel; and arbitration or mediation-arbitration 
(by a Panel designee or a private arbitrator). Following procedures 
used by the Panel, it may issue a report to the parties containing 
recommendations for settlement.
    (b) Upon receipt of a request for approval of a binding arbitration 
procedure, the Panel or its designee will promptly conduct an 
investigation, consulting when necessary with the parties and with any 
mediation service utilized. After due consideration, the Panel shall 
promptly approve or disapprove the request, normally within five (5) 
workdays.
    9. The section heading and the first sentence of Sec. 2471.7 are 
revised and paragraphs (b) (1) through (6) are redesignated as (a) 
through (b), respectively. The revisions read as follows:


Sec. 2471.7  Preliminary factfinding procedures.

    When the Panel determines that a factfinding hearing is necessary 
under Sec. 2471.6, and it appoints one or more of its designees to 
conduct such hearing, it will issue and serve upon each of the parties 
a notice of hearing and a notice of prehearing conference, if any.
* * * * *
    10. The section heading of Sec. 2471.8 is revised to read as 
follows:


Sec. 2471.8  Conduct of factfinding and other hearings; prehearing 
conferences.

* * * * *
    11. Section 2471.9 is amended by revising paragraph (a) to read as 
follows:


Sec. 2471.9  Report and recommendations.

    (a) When a report is issued after a factfinding hearing is 
conducted pursuant to Secs. 2471.7 and 2471.8, it normally shall be in 
writing and, when authorized by the Panel, shall contain 
recommendations.
* * * * *

PART 2472--IMPASSES ARISING PURSUANT TO AGENCY DETERMINATIONS NOT 
TO ESTABLISH OR TO TERMINATE FLEXIBLE OR COMPRESSED WORK SCHEDULES

    12. The authority citation for Part 2472 is revised to read as 
follows:

    Authority: 5 U.S.C. 6131.

    13. In Sec. 2472.2, paragraphs (d) through (n) are redesignated as 
paragraphs (e) through (o), new paragraph (d) is added, and paragraph 
(j) is revised to read as follows:


Sec. 2472.2  Definitions.

* * * * *
    (d) The term ``duly authorized delegatee'' means an official who 
has been delegated the authority to act for the head of the agency in 
the matter concerned.
* * * * *
    (j) The term ``hearing'' means a factfinding hearing or any other 
hearing procedures deemed necessary to accomplish the purpose of 5 
U.S.C. 6131.
* * * * *
    14. Section 2472.3 is revised to read as follows:


Sec. 2472.3  Request for Panel consideration.

    Either party, or the parties jointly, may request the Panel to 
resolve an impasse resulting from an agency determination not to 
establish or to terminate a flexible or compressed work schedule by 
filing a request as hereinafter provided. A form is available for use 
by the parties in filing a request with the Panel. Copies are available 
from the Office of the Executive Director, Federal Service Impasses 
Panel, 607 14th Street, NW., Suite 220, Washington, D.C. 20424-0001. 
Telephone (202) 482-6670. Use of the form is not required provided that 
the request includes all of the information set forth in Sec. 2472.4.
    15. Section 2472.4 is amended by revising paragraphs (a)(1) and 
(a)(6) to read as follows:


Sec. 2472.4  Content of request.

    (a) * * *
    (1) Identification of the parties and individuals authorized to act 
on their behalf, including their addresses, telephone numbers, and 
facsimile numbers;
* * * * *
    (6) A copy of the agency's written determination and the finding on 
which the determination is based, including, in a case where the 
finding is made by a duly authorized delegatee, evidence of a specific 
delegation of authority to make such a finding; and
* * * * *
    16. Section 2472.5 is revised to read as follows:


Sec. 2472.5  Where to file.

    Requests to the Panel provided for in these rules, and inquiries or 
correspondence on the status of impasses or other related matters, 
should be directed to the Executive Director, Federal Service Impasses 
Panel, 607 14th Street, NW., Suite 220, Washington, D.C. 20424-0001. 
Telephone (202) 482-6670. Facsimile (202) 482-6674.
    17. Section 2472.6 is removed and Sec. 2472.7 through 2472.12 are 
redesignated as Sec. 2472.6 through 2472.11, respectively.
    18. Newly designated Sec. 2472.6 is amended by revising the section 
heading and paragraphs (a), (b), (d), (e), and (f) to read as follows:


Sec. 2472.6  Filing and service.

    (a) Filing and service of request. (1) Any party submitting a 
request for Panel consideration of an impasse filed pursuant to 
Sec. 2472.3 shall file an original and one copy with the Panel. A clean 
copy may be submitted for the original. Requests may be submitted in 
person or by registered mail, certified mail, regular mail, or private 
delivery service. Requests will also be accepted by the Panel if 
transmitted to the facsimile machine of its office. A party submitting 
a request by facsimile shall also file an original for the Panel's 
records, but failure to do so shall not affect the validity of the 
filing by facsimile, if otherwise proper.
    (2) The party submitting the request shall serve a copy of such 
request upon all counsel of record or other designated 
representative(s) of parties, and upon parties not so represented. 
Service upon such counsel or representative shall constitute service 
upon the party, but a copy also shall be transmitted to the party. 
Service of a request may be made in person or by registered mail, 
certified mail, regular mail, or private delivery service. With the 
permission of the person receiving the request, service may be made by 
facsimile transmission or by any other agreed-upon method.
    (b) Filing and service of other documents. (1) Any party submitting 
a response to, or other document in connection with, a request for 
Panel consideration of an impasse filed pursuant to Sec. 2472.3 shall 
file an original and one copy with the Panel. A

[[Page 28802]]

clean copy may be submitted for the original. Documents may be 
submitted to the Panel in person or by registered mail, certified mail, 
regular mail, or private delivery service. Documents may also be 
accepted by the Panel if transmitted to the facsimile machine of its 
office, but only with advance permission, which may be obtained by 
telephone. A party submitting a document by facsimile shall also file 
an original for the Panel's records, but failure to do so shall not 
affect the validity of the submission, if otherwise proper.
    (2) The party submitting the document shall serve a copy of such 
request upon all counsel of record or other designated 
representative(s) of parties, or upon parties not so represented. 
Service upon such counsel or representative shall constitute service 
upon the party, but a copy also shall be transmitted to the party. 
Service of a document may be made in person or by registered mail, 
certified mail, regular mail, or private delivery service. With the 
permission of the person receiving the document, service may be made by 
facsimile transmission or by any other agreed-upon method.
* * * * *
    (d) The date of service or date served shall be the day when the 
matter served, if properly addressed, is deposited in the U.S. mail, is 
delivered in person, or is deposited with a private delivery service 
that will provide a record showing the date the document was tendered 
to the delivery service. Where service is made by facsimile 
transmission, the date of service shall be the date on which 
transmission is received.
    (e) Unless otherwise provided by the Panel or its designated 
representatives, any document or paper filed with the Panel under this 
part, together with any enclosure filed therewith, shall be typewritten 
on 8\1/2\ x 11 inch plain white paper, shall have margins no less than 
1 inch on each side, shall be in typeface no smaller than 10 characters 
per inch, and shall be numbered consecutively. Nonconforming papers 
may, at the Panel's discretion, be rejected.
    (f) An impasse arising pursuant to section 6131(c) (2) or (3) of 
the Act will not be considered to be filed, and no Panel action will be 
taken, until the party initiating the request has complied with 
Secs. 2472.4, 2472.5, of this section.
    19. Newly designated Sec. 2472.7 is amended by revising paragraph 
(b) to read as follows:


Sec. 2472.7  Investigation of request; Panel assistance.

* * * * *
    (b) The procedures utilized by the Panel shall afford the parties 
an opportunity to present their positions, including supporting 
evidence and arguments orally and/or in writing. They include, but are 
not limited to: informal conferences with a Panel designee; factfinding 
(by a Panel designee or a private factfinder); written submissions; 
show cause orders; and oral presentations to the Panel.
    20. Newly designated Sec. 2472.8 is revised to read as follows:


Sec. 2472.8  Preliminary hearing procedures.

    When the Panel determines that a hearing shall be held, and it 
appoints one or more of its designees to conduct such a hearing, it 
will issue and serve upon each of the parties a notice of hearing and a 
notice of prehearing conference, if any. The notice will state:
    (a) The names of the parties to the dispute;
    (b) The date, time, place, type, and purpose of the hearing;
    (c) The date, time, place, and purpose of the prehearing 
conference, if any;
    (d) The name of the designated representative(s) appointed by the 
Panel;
    (e) The issue(s) to be resolved; and
    (f) The method, if any, by which the hearing shall be transcribed.
    21. Newly designated Sec. 2472.10 is revised to read as follows:


Sec. 2472.10  Reports.

    When a report is issued after a hearing conducted pursuant to 
Sec. 2472.8 and 2472.9, it normally shall be in writing and shall be 
submitted to the Panel, with a copy to each party, within a period 
normally not to exceed 30 calendar days after the close of the hearing 
and receipt of briefs, if any.
    22. In newly designated Sec. 2472.11, the introductory text of 
paragraph (a) and paragraph (b) are revised to read as follows:


Sec. 2472.11  Final action by the Panel.

    (a) After due consideration of the parties' positions, evidence, 
and arguments, including any report submitted in accordance with 
Sec. 2472.10, the Panel shall take final action in favor of the 
agency's determination if:
* * * * *
    (b) If the finding on which an agency determination under 5 U.S.C. 
6131(c)(2) or (c)(3) is based is not supported by evidence that the 
schedule is likely to cause or has caused an adverse agency impact, the 
Panel shall take whatever final action is appropriate.
* * * * *

PART 2473--MISCELLANEOUS REQUIREMENTS

    23. Part 2473 is added to read as follows:
Sec.
2473.1  Subpenas.

    Authority: 5 U.S.C. 7119, 7134.


Sec. 2473.1  Subpenas.

    (a) Any member of the Panel, the Executive Director, or other 
person designated by the Panel, may issue subpenas requiring the 
attendance and testimony of witnesses and the production of documentary 
or other evidence. However, no subpena shall be issued under this 
section which requires the disclosure of intramanagement guidance, 
advice, counsel, or training within an agency or between an agency and 
the Office of Personnel Management.
    (b) Where the parties are in agreement that the appearance of 
witnesses or the production of documents is necessary, and such 
witnesses agree to appear, no such subpena need be sought.
    (c) A request for a subpena by any person, as defined in 5 U.S.C. 
7103(a)(1), shall be in writing and filed with the Executive Director, 
not less than fifteen (15) days prior to the opening of a hearing, or 
with the appropriate presiding official(s) during the hearing.
    (d) All requests shall name and identify the witnesses or documents 
sought, and state the reasons therefor. The Panel, Executive Director, 
or any other person designated by the Panel, as appropriate, shall 
grant the request upon the determination that the testimony or 
documents appear to be necessary to the matters under consideration and 
the request describes with sufficient particularity the documents 
sought. Service of an approved subpoena is the responsibility of the 
party on whose behalf the subpoena was issued. The subpoena shall show 
on its face the name and address of the party on whose behalf the 
subpoena was issued.
    (e) Any person served with a subpoena who does not intend to comply 
shall within (5) days after the date of service of the subpoena upon 
such person, petition in writing to revoke the subpoena. A copy of any 
petition to revoke a subpoena shall be served on the party on whose 
behalf the subpoena was issued. Such petition to revoke, if made prior 
to the hearing, and a written statement of service, shall be filed with 
the Executive Director. A petition to revoke a subpoena filed during 
the hearing, and a written statement of service shall be filed with

[[Page 28803]]

the appropriate presiding official(s). The Executive Director, or the 
appropriate presiding official(s) will, as a matter of course, cause a 
copy of the petition to revoke to be served on the party on whose 
behalf the subpoena was issued, but shall not be deemed to assume 
responsibility for such service. The Panel, Executive Director, or any 
other person designated by the Panel, as appropriate, shall revoke the 
subpoena if the evidence the production of which is required does not 
relate to any matter under consideration in the proceedings, or the 
subpoena does not describe with sufficient particularity the evidence 
the production of which is required, or if for any other reason 
sufficient in law the subpoena is invalid. The Panel, Executive 
Director, or any other person designated by the Panel, as appropriate, 
shall make a simple statement of procedural or other ground for the 
ruling on the petition to revoke. The petition to revoke, any answer 
thereto, and any ruling thereon shall not become part of the official 
record except upon the request of the party aggrieved by the ruling.
    (f) Upon the failure of any person to comply with a subpoena 
issued, upon the request of any party to the proceeding, the Solicitor 
of the FLRA shall, on behalf of such party, institute proceedings in 
the appropriate district court for the enforcement thereof, unless, in 
the judgment of the Solicitor of the FLRA, the enforcement of such 
subpoena would be inconsistent with law and the policies of the Federal 
Service Labor-Management Relations Statute. The Solicitor of the FLRA 
shall not be deemed thereby to have assumed responsibility for the 
effective prosecution of the same before the court thereafter.
    (g) All papers submitted to the Executive Director under this 
section shall be filed in duplicate, along with a statement of service 
showing that a copy has been served on the other party to the dispute.
    (h)(1) Witnesses (whether appearing voluntarily or under a 
subpoena) shall be paid the fee and mileage allowances which are paid 
subpoenaed witnesses in the courts of the United States: Provided, that 
any witness who is employed by the Federal Government shall not be 
entitled to receive witness fees in addition to compensation received 
in conjunction with official time granted for such participation, 
including necessary travel time, as occurs during the employee's 
regular work hours and when the employee would otherwise be in a work 
or paid leave status.
    (2) Witness fees and mileage allowances shall be paid by the party 
at whose instance the witnesses appear except when the witness receives 
compensation in conjunction with official time as described in 
paragraph (h)(1) of this section.

    Dated: May 31, 1996.

    By direction of the Panel.
Linda A. Lafferty,
Executive Director, Federal Service Impasses Panel.
[FR Doc. 96-14098 Filed 6-5-96; 8:45 am]
BILLING CODE 6727-01-P