Requests for Arbitration Panels

Issuing agencies

Abstract

The Federal Mediation and Conciliation Service (FMCS) is issuing an interim final rule with requests for comments to amend its arbitration services regulations. The interim final rule clarifies the circumstances in which the Office of Arbitration (OA) may decline to issue an arbitration panel, make a direct appointment, or provide related arbitration services. The rule would remove language that could be read to require FMCS to honor every unilateral request for an arbitration panel, regardless of legal constraints or FMCS's authority. Due to a technical error, FMCS is reposting this IFR and extending the deadline for comments to 30 days from the date of publication in the Federal Register. FMCS seeks public comment on this interim final rule.

Full Text

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<title>Federal Register, Volume 91 Issue 166 (Friday, August 28, 2026)</title>
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[Federal Register Volume 91, Number 166 (Friday, August 28, 2026)]
[Rules and Regulations]
[Pages 55473-55477]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-17652]


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FEDERAL MEDIATION AND CONCILIATION SERVICE

29 CFR Part 1404

RIN3076-AA31


Requests for Arbitration Panels

AGENCY: Federal Mediation and Conciliation Service.

ACTION: Interim final rule; request for comments.

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SUMMARY: The Federal Mediation and Conciliation Service (FMCS) is 
issuing an interim final rule with requests for comments to amend its 
arbitration services regulations. The interim final rule clarifies the 
circumstances in which the Office of Arbitration (OA) may decline to 
issue an arbitration panel, make a direct appointment, or provide 
related arbitration services. The rule would remove language that could 
be read to require FMCS to honor every unilateral request for an 
arbitration panel, regardless of legal constraints or FMCS's authority. 
Due to a technical error, FMCS is reposting this IFR and extending the 
deadline for comments to 30 days from the date of publication in the 
Federal Register. FMCS seeks public comment on this interim final rule.

DATES: This interim final rule is effective August 28, 2026.
    Comment date: Comments must be received on or before September 28, 
2026. FMCS will consider all timely comments received. After reviewing 
the comments, FMCS may revise, withdraw, or confirm this interim final 
rule through a subsequent document published in the Federal Register.

ADDRESSES: You may submit comments for this interim final rule via 
email to <a href="/cdn-cgi/l/email-protection#9be9fefcf2e8effee9dbfdf6f8e8b5fcf4ed"><span class="__cf_email__" data-cfemail="3c4e595b554f48594e7c5a515f4f125b534a">[email&#160;protected]</span></a> and include ``Requests for Arbitration 
Panel, RIN 3076-AA31'' in the subject line or via mail to Office of 
General Counsel, Federal Mediation and Conciliation Service, One 
Independence Square, 250 E St. SW, Washington, DC 20427.
    All comments received will be posted without change, including any 
personal information provided via FMCS's public website. To ensure that 
your comments will be considered, you must submit them within the 
specified open comment period. FMCS will consider all comments received 
on or before the closing date for comments. FMCS may make changes to 
this rule after considering the comments received.

FOR FURTHER INFORMATION CONTACT: Anna Davis, General Counsel, Federal 
Mediation and Conciliation Service, (202) 606-3737, <a href="/cdn-cgi/l/email-protection#fe9f9a9f88978dbe98939d8dd0999188"><span class="__cf_email__" data-cfemail="1f7e7b7e69766c5f79727c6c31787069">[email&#160;protected]</span></a>.

SUPPLEMENTARY INFORMATION:

I. Background and Purpose

    FMCS administers a Roster of Arbitrators and provides arbitration-
related services under 29 CFR part 1404. Those regulations provide that 
voluntary arbitration and fact-finding are important means of resolving 
labor disputes and that OA administers requests for labor arbitration 
services. Current Sec.  1404.9(b) states that a panel request, 
``whether joint or unilateral, will be honored,'' while also stating 
that FMCS does not adopt any position on the status of an arbitration 
agreement, arbitrability of a dispute, or the terms of the parties' 
contract by issuing a panel or appointing an arbitrator. Current Sec.  
1404.10 similarly provides that the Office of Arbitration will not 
decide that a dispute is not subject to arbitration.
    FMCS's authority is administrative and facilitative. Current Sec.  
1404.9(c) provides that FMCS has no power to compel parties to appear 
before an arbitrator, enforce an agreement to

[[Page 55474]]

arbitrate, compel parties to arbitrate any issue, influence or set 
aside an arbitrator's decision, or compel, deny, or modify payment of 
compensation to an arbitrator. Current Sec.  1404.9(d) also recognizes 
that the OA may decline to submit a panel or appoint an arbitrator if 
the request is overly burdensome or otherwise impracticable.
    FMCS has determined that the current sentence stating that every 
joint or unilateral panel request ``will be honored'' could be misread 
as requiring FMCS to provide panels even where doing so would be 
inconsistent with law, a court order, or FMCS's statutory or regulatory 
authority. That was not the intended effect of the regulation. The 
proposed rule clarifies that FMCS retains authority to make limited 
threshold determinations concerning whether FMCS may lawfully provide 
the requested service.
    FMCS's statutory authorities support that clarification. Section 
203 of the Labor Management Relations Act authorizes FMCS to make 
services available to assist in the resolution of labor disputes and, 
in subsection (f), to make its services available to Federal agencies 
to aid in the resolution of disputes under subchapter IV of chapter 5 
of title 5, including by maintaining rosters of neutrals and 
arbitrators. Those services are subject to provisions in 5 U.S.C. 
572(a) and 572(c) making clear that alternative dispute-resolution 
procedures are voluntary and require mutual consent. In the Federal-
sector collective-bargaining context, 5 U.S.C. 7121 separately governs 
negotiated grievance procedures and provides that unresolved grievances 
under such procedures are subject to binding arbitration invoked by 
either the exclusive representative or the agency.
    Recent executive orders excluding certain agencies or subdivisions 
from Federal labor-management relations have increased the likelihood 
that FMCS will receive requests for arbitration panels in circumstances 
where one party asserts that participation in the requested arbitration 
process is prohibited by law, court order or otherwise outside FMCS's 
statutory or regulatory authority. Executive Order 14251 excluded 
identified agencies and subdivisions from coverage under chapter 71 of 
title 5 based on the President's national security determinations, and 
directed agencies covered by the exclusion, upon termination of 
applicable collective-bargaining agreements, to terminate agency 
participation in any pending grievance proceedings under 5 U.S.C. 7121. 
FMCS recognizes that litigation concerning these matters may affect 
particular requests and that FMCS must administer its arbitration 
services consistent with applicable law and any court orders.
    This rule therefore clarifies the limited screening role FMCS may 
perform before issuing a panel or making an appointment. Where a 
request presents a threshold question about FMCS's authority to provide 
the requested service, FMCS may seek information from the parties and 
may decline the request, hold the request in abeyance, or take another 
administratively appropriate action. FMCS's action on such a threshold 
question does not adjudicate the parties' underlying contractual, 
statutory, or arbitrability dispute. These changes reflect the 
longstanding principle that arbitration is voluntary and correct 
confusing and potentially misleading language in FMCS's current 
regulation.

II. Regulatory Changes

    This interim final rule amends 29 CFR part 1404, subpart C, which 
governs FMCS arbitration services, to clarify OA's authority to screen 
arbitration-panel and appointment requests before providing FMCS 
services. The rule preserves FMCS's existing role as an administrative 
provider of arbitration panels and appointments, but makes clear that 
FMCS is not required to issue a panel, make a direct appointment, or 
provide related arbitration services where doing so would be 
inconsistent with applicable law, a court order, or FMCS's statutory or 
regulatory authority.

Section 1404.9--Procedures for Requesting Arbitration Lists and Panels

    The rule revises Sec.  1404.9(b). Current Sec.  1404.9(b) provides 
that, although parties are encouraged to make joint requests, a panel 
request ``whether joint or unilateral, will be honored,'' while also 
stating that issuance of a panel does not signify any FMCS position on 
the arbitration agreement, arbitrability, or contract terms.
    The revised text retains the basic rule that, upon request, OA will 
refer a randomly selected panel of seven arbitrators to parties to an 
arbitration or fact-finding agreement, or where labor arbitration or 
fact-finding may be provided by statute. It also retains the 
requirement that each panel member's biographical sketch include the 
background, qualifications, experience, and fee information furnished 
to FMCS by the arbitrator.
    The rule clarifies when a panel request may be unilateral and when 
joint authorization is required. Under the revised text, a request for 
a panel may be joint or unilateral unless part 1404, applicable law, or 
the parties' agreement requires joint authorization for the requested 
service. Requests for a panel of other than seven names, for direct 
appointment of an arbitrator, or for special qualifications or other 
special service continue to require joint submission or authorization 
by both parties pursuant to mutual agreement.
    The rule adds a new limited threshold-inquiry provision. OA may 
conduct a limited threshold inquiry to determine whether issuing a 
panel, making a direct appointment, or providing related arbitration 
services would be inconsistent with applicable law, a court order, or 
FMCS's statutory or regulatory authority. In conducting that inquiry, 
OA may request the parties' agreement, a statutory provision, 
regulation, court order, written authorization, or other information 
needed to determine whether FMCS may provide the requested service.
    Following that limited threshold inquiry, FMCS may issue the panel 
or appointment, decline to provide the requested service, hold the 
request in abeyance, or take another administratively appropriate 
action. The revised text further clarifies that FMCS's issuance of a 
panel or appointment, refusal to issue a panel or appointment, or 
decision to hold a request in abeyance does not decide the validity of 
any collective-bargaining agreement, the merits of any grievance, the 
arbitrability of any dispute, or the parties' rights or obligations 
under any agreement or law.
    For example, the doctrine of sovereign immunity requires statutory 
authorization before an agency can engage in binding arbitration. 
Without such authorization agencies cannot be brought before an 
external tribunal.\1\ Congress has provided statutory authorization for 
agencies to engage in binding arbitration in a number of contexts 
involving both private parties and Federal employees.\2\ However, in 
situations where statutory authorization is not available, the 
executive branch's obligation to take care that the law is faithfully 
executed precludes FMCS from providing panels for unlawful arbitration 
proceedings. FMCS cannot facilitate constitutional violations.
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    \1\ See United States v. Shaw, 309 U.S. 495, 500-501 (1940) 
(``without specific statutory consent, no suit may be brought 
against the United States. No officer, by his action, can confer 
jurisdiction''). See also U.S. v. Mitchell, 463 U.S. 206, 215-216 
(1983) (without statutory authorization ``no contracting officer or 
other official is empowered to consent to suit against the United 
States.'').
    \2\ See 5 U.S.C. 572 and 5 U.S.C. 7121.

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[[Page 55475]]

Section 1404.10--Arbitrability

    The rule revises Sec.  1404.10 to conform to the revised threshold-
inquiry language in Sec.  1404.9. The revised section preserves the 
rule that OA will not decide the merits of a claim by either party that 
a dispute is not subject to arbitration. It adds that OA may 
nevertheless conduct a limited threshold inquiry to determine whether 
FMCS may lawfully submit a panel, make a direct appointment, or provide 
related arbitration services under part 1404, consistent with Sec.  
1404.9.

Section 1404.11--Nominations of Arbitrators

    The rule revises Sec.  1404.11(b) and (c). Current Sec.  1404.11(b) 
provides that OA will provide a randomly selected panel of arbitrators 
located near the hearing site, unless the parties jointly request 
special qualifications or no geographic restrictions. Current Sec.  
1404.11(c) provides that, if the parties do not agree on an arbitrator 
from the first panel, OA will furnish up to five additional panels upon 
joint request, or upon unilateral request if authorized by the 
applicable collective-bargaining agreement, and payment of additional 
fees.
    The revised Sec.  1404.11(b) makes nominations of arbitrators 
expressly subject to Sec. Sec.  1404.9 and 1404.10. This conforming 
change ensures that ordinary panel nomination procedures do not 
override FMCS's threshold authority to decline or hold a request in 
abeyance where providing the requested service would be inconsistent 
with law, a court order, or FMCS's authority.
    The rule also updates the nondiscrimination sentence in Sec.  
1404.11(b). It replaces ``gender'' with ``sex'' and adds a catchall 
prohibiting inclusions or exclusions based on ``any other basis 
prohibited by applicable law.''
    The revised Sec.  1404.11(c) preserves the existing additional-
panel process but expands the sources of authority that may support a 
unilateral request for additional panels. Additional panels may be 
furnished upon joint request, or upon unilateral request if authorized 
by the applicable collective-bargaining agreement, statute, regulation, 
court order, or other binding authority, and payment of additional 
fees. The revised paragraph also states that the additional-panel 
process is subject to Sec. Sec.  1404.9 and 1404.10, and that OA may 
decline to furnish an additional panel or hold the request in abeyance 
if furnishing the panel would be inconsistent with applicable law, a 
court order, or FMCS's statutory or regulatory authority.

Section 1404.12--Selection by Parties and Appointment of Arbitrators

    The rule revises Sec.  1404.12(b) and (c). Current Sec.  1404.12(b) 
sets out the ranked-preference process for selecting an arbitrator from 
a panel and provides that, if one party submits its ranked preferences 
and the other party fails to respond within 14 days, the first party's 
choice will be honored. Current Sec.  1404.12(c) provides that OA will 
make a direct appointment only upon joint request or as otherwise 
provided by part 1404.
    The revised Sec.  1404.12(b) retains the existing ranked preference 
process. Where the parties' collective-bargaining agreement permits 
each party to separately notify OA of its ranked preferences, or is 
silent on the selection method, FMCS will ask each party to rank the 
panel. If both parties respond, the arbitrator with the lowest combined 
number will be appointed. If one party fails to respond, the first 
party's choice will be honored.
    The rule adds a conforming limitation to Sec.  1404.12(b): the 
paragraph is subject to Sec.  1404.9(b) and does not require OA to make 
an appointment where OA determines that the appointment would be 
inconsistent with applicable law, a court order, or FMCS's statutory or 
regulatory authority.
    The revised Sec.  1404.12(c) likewise makes direct appointments 
subject to Sec. Sec.  1404.9 and 1404.10. OA will make a direct 
appointment only upon joint request or as otherwise provided by part 
1404, but that appointment authority is now expressly subject to the 
rule's threshold-screening provisions.

III. Expected Impact

A. Statement of Need

    FMCS is issuing this interim final rule to clarify its arbitration 
services regulations and prevent misinterpretation of current Sec.  
1404.9(b). The current language could be read to require FMCS to honor 
every unilateral request for an arbitration panel even when providing a 
panel, making a direct appointment, or providing related arbitration 
services would be inconsistent with applicable law, a court order, or 
FMCS's statutory or regulatory authority.
    The interim final rule clarifies that OA may conduct a limited 
threshold inquiry into whether FMCS may lawfully provide the requested 
administrative arbitration service. The rule does not authorize FMCS to 
decide the merits of any grievance, the validity of any collective-
bargaining agreement, the arbitrability of any dispute, or the rights 
or obligations of the parties under any agreement or law.

B. Costs

    FMCS does not expect the rule to impose significant costs. The rule 
does not require any party to submit new recurring reports, maintain 
new records, or change the substantive terms of any collective-
bargaining agreement. The rule clarifies FMCS's internal processing 
standards for arbitration-panel requests and related services. Some 
parties may submit information to FMCS in response to a threshold 
inquiry, but FMCS expects such submissions to be limited to 
circumstances in which a request presents a legal or authority-based 
objection to FMCS providing the requested service.
    FMCS also expects any cost effects to be limited because the rule 
does not affect parties' ability to pursue any available remedy before 
the FLRA, a court, or another tribunal with jurisdiction. Where FMCS 
determines that it cannot provide a requested panel or appointment, 
parties remain free to pursue any other procedure or remedy available 
under law or their agreement.

C. Benefits

    The rule will improve clarity, reduce confusion, and help ensure 
that FMCS administers its arbitration services consistent with law. The 
rule will make clear that FMCS's existing panel procedures do not 
require FMCS to provide a panel or appointment where doing so would 
exceed FMCS's authority or conflict with applicable law or court 
orders. The rule will also help parties understand that FMCS's 
threshold processing decisions do not decide the merits of a grievance, 
the validity of a collective-bargaining agreement, or the arbitrability 
of a dispute.

D. Alternatives Considered

    FMCS considered retaining the current text of Sec.  1404.9(b), but 
rejected that alternative because the phrase ``whether joint or 
unilateral, will be honored'' may be read too broadly and may create 
confusion about FMCS's obligations. FMCS also considered adopting a 
rule under which FMCS would decide arbitrability disputes before 
issuing a panel, but rejected that alternative because FMCS's role is 
administrative and facilitative, and current Sec.  1404.10 provides 
that the Office of Arbitration does not decide the merits of 
arbitrability claims. The interim final rule adopts a narrower approach 
by authorizing only a limited threshold inquiry into FMCS's own

[[Page 55476]]

authority to provide the requested administrative arbitration service.

E. Reliance Interests

    FMCS recognizes that some parties may have relied on current Sec.  
1404.9(b) and prior FMCS practice when drafting or administering 
arbitration procedures. This interim final rule does not retroactively 
invalidate any panel previously issued, appointment previously made, or 
request previously submitted. Nor does it alter any party's contractual 
or statutory rights. The rule clarifies only FMCS's own authority and 
procedures for providing arbitration panels, appointments, and related 
services.
    To the extent parties expected FMCS to honor unilateral panel 
requests in all circumstances, FMCS has determined that any such 
reliance is outweighed by the need to ensure that FMCS does not provide 
arbitration services where doing so would be inconsistent with 
applicable law, a court order, or FMCS's authority. Further, FMCS does 
not believe any expectation that FMCS would honor requests that 
conflicted with applicable law to be reasonable. FMCS also notes that 
parties remain free to pursue available remedies before the FLRA, a 
court, or another tribunal with jurisdiction. For example, any 
allegations that a party failed to comply with any provision of a CBA, 
including any arbitration provision, may be presented to the Federal 
Labor Relations Authority as an unfair labor practice pursuant to 5 
U.S.C. 7116.

F. Severability

    FMCS intends the provisions of this interim final rule to be 
severable. If any provision of this rule, or the application of any 
provision to any person or circumstance, is held invalid, FMCS intends 
that the remainder of the rule and its application to other persons or 
circumstances remain in effect to the fullest extent permitted by law.

IV. Regulatory Compliance

A. Administrative Procedure Act

    FMCS is issuing this rule as an interim final rule with request for 
comments. FMCS finds good cause under 5 U.S.C. 553(b)(B) to issue this 
rule without first publishing a notice of proposed rulemaking because 
prior notice and public procedure are impracticable, unnecessary, and 
contrary to the public interest. Current Sec.  1404.9(b) could be read 
to require OA to honor every joint or unilateral request for an 
arbitration panel regardless of whether providing the requested service 
would be inconsistent with applicable law, a court order, or FMCS's 
statutory or regulatory authority. FMCS has determined that it is 
necessary to clarify promptly that FMCS retains authority to conduct a 
limited threshold inquiry and to decline, hold in abeyance, or 
otherwise act on requests that FMCS cannot lawfully process or that 
would otherwise be inconsistent with law.
    Delaying issuance of this clarification until after completion of 
notice-and-comment rulemaking would risk continued confusion regarding 
FMCS's authority and obligations when presented with requests that 
raise threshold legal or authority-based objections. FMCS therefore 
finds that issuing this rule on an interim final basis is in the public 
interest.
    Although FMCS finds good cause to issue this rule without prior 
notice and comment, FMCS invites public comment on all aspects of this 
interim final rule. FMCS will consider all timely comments and may 
revise, withdraw, delay the effective date of, or confirm this interim 
final rule through a subsequent Federal Register document.
    FMCS also finds good cause under 5 U.S.C. 553(d)(3) to make this 
rule effective upon publication. The same reasons supporting issuance 
without prior notice and comment also support immediate effectiveness 
because delaying the rule's effective date would perpetuate uncertainty 
regarding FMCS's authority to decline, hold in abeyance, or otherwise 
act on requests for arbitration services that FMCS may not lawfully 
process or that would otherwise be inconsistent with law.

B. Regulatory Review

    FMCS has considered the costs and benefits of this rule. The rule 
clarifies FMCS's procedures for providing arbitration panels and 
appointments and does not impose significant compliance costs. OIRA has 
determined that this rule is not a significant regulatory action under 
Executive Order 12866. This rule is not an Executive Order 14192 
regulatory action because it imposes no more than de minimis regulatory 
costs.

C. Regulatory Flexibility Act

    Because FMCS is issuing this rule without prior notice and comment 
based on the good-cause exception in 5 U.S.C. 553(b)(B), the 
requirements of the Regulatory Flexibility Act for an initial or final 
regulatory flexibility analysis do not apply. In any event, FMCS 
certifies that this interim final rule will not have a significant 
economic impact on a substantial number of small entities.
    This rule clarifies FMCS's procedures for processing requests for 
arbitration panels, direct appointments, and related arbitration 
services. It does not impose new substantive compliance obligations, 
recurring reporting requirements, or recordkeeping requirements on 
small entities. The rule does not alter the fee schedule in appendix A 
to part 1404. To the extent a small entity requests FMCS arbitration 
services, the rule may affect whether FMCS issues a panel or 
appointment in the limited circumstance where FMCS determines that 
providing the requested service would be inconsistent with applicable 
law, a court order, or FMCS's statutory or regulatory authority. FMCS 
expects any economic effect to be minimal.

D. Federalism

    FMCS has analyzed this rule under Executive Order 13132 and has 
determined that it will not have substantial direct effects on the 
States, on the relationship between the National Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government.

E. Civil Justice Reform

    This rulemaking meets the applicable standards set forth in section 
3(a) and (b)(2) of Executive Order 12988.

F. Unfunded Mandates Reform Act

    This rule will not result in expenditures by State, local, or 
tribal governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, adjusted for inflation. Accordingly, 
FMCS has not prepared a written statement under the Unfunded Mandates 
Reform Act.

G. Congressional Review Act

    FMCS will submit this interim final rule to Congress and the 
Comptroller General in accordance with 5 U.S.C. 801. OIRA has 
determined that this rule is not a ``major rule'' within the meaning of 
5 U.S.C. 804(2).

H. Paperwork Reduction Act

    This rule does not impose a new collection of information within 
the meaning of the Paperwork Reduction Act because it does not require 
standardized reporting or recordkeeping by the public. If FMCS later 
revises Form R-43 or creates a standardized submission requirement to 
implement threshold inquiries under this rule, FMCS will evaluate 
whether approval from OMB is required under the Paperwork Reduction 
Act.

[[Page 55477]]

List of Subjects in 29 Part 1404

    Administrative practice and procedures; Arbitration; Labor 
management relations.

    For the reasons stated in the preamble, the Federal Mediation and 
Conciliation Service amends 29 CFR part 1404 as follows:

PART 1404--ARBITRATION SERVICES

0
1. The authority citation continues to read as follows:

    Authority:  29 U.S.C. 172 and 29 U.S.C. 173 et seq.

Subpart C--Procedures for Arbitration Services

0
2. Amend Sec.  1404.9 by revising paragraph (b) to read as follows:


Sec.  1404.9  Procedures for requesting arbitration lists and panels.

* * * * *
    (b) (1) Upon request, OA will refer a randomly selected panel of 
seven arbitrators to parties to an agreement to arbitrate or engage in 
fact-finding, or where labor arbitration or fact-finding may be 
provided by statute. A biographical sketch will be provided for each 
member of the panel. This sketch states the background, qualifications, 
experience, and all fees as furnished to OA by the arbitrator.
    (2) A request for a panel may be joint or unilateral unless this 
part, applicable law, or the parties' agreement requires joint 
authorization for the requested service. Requests for a panel of other 
than seven names, for direct appointment of an arbitrator, or for 
special qualifications or other special service will not be honored 
unless jointly submitted or authorized by both parties pursuant to 
mutual agreement.
    (3) OA may conduct a limited threshold inquiry to determine whether 
issuing a panel, making a direct appointment, or providing related 
arbitration services would be inconsistent with applicable law, a court 
order, or FMCS's statutory or regulatory authority. OA may request from 
the parties the agreement, statutory provision, regulation, court 
order, written authorization, or other information necessary to 
determine whether OA may provide the requested service. Following such 
inquiry, FMCS may issue the panel or appointment, decline to provide 
the requested service, hold the request in abeyance, or take other 
administratively appropriate action.
    (4) OA's issuance of a panel or appointment, refusal to issue a 
panel or appointment, or decision to hold a request in abeyance does 
not constitute a decision on the validity of any collective-bargaining 
agreement, the merits of any grievance, the arbitrability of any 
dispute, or the rights or obligations of the parties under any 
agreement or law.
* * * * *

0
3. Revise Sec.  1404.10 to read as follows:


Sec.  1404.10  Arbitrability.

    OA will not decide the merits of a claim by either party that a 
dispute is not subject to arbitration. OA may, however, conduct a 
limited threshold inquiry to determine whether FMCS may lawfully submit 
a panel, make a direct appointment, or provide related arbitration 
services under this part, consistent with Sec.  1404.9.

0
4. Amend Sec.  1404.11 by revising paragraphs (b) and (c) to read as 
follows:


Sec.  1404.11  Nominations of arbitrators.

* * * * *
    (b) Subject to Sec. Sec.  1404.9 and 1404.10, OA will provide a 
randomly selected panel of arbitrators located in geographical areas in 
proximity of the hearing site, as specified in the request. The parties 
may jointly request special qualification of arbitrators experienced in 
certain issues or industries or that possess certain backgrounds, or a 
panel with no geographic restrictions within the U.S. OA has no 
obligation to put an individual on any given panel or on a minimum 
number of panels in any fixed period. If at any time both parties 
request that a name or names be included, or omitted, from a panel, 
such name or names will be included, or omitted, unless the number of 
names is excessive. These inclusions/exclusions may not discriminate 
against anyone because of age, race, color, sex, national origin, 
disability, genetic information, religion, or any other basis 
prohibited by applicable law.
    (c) If the parties do not agree on an arbitrator from the first 
panel, OA will furnish up to five additional panels to the parties upon 
joint request, or upon a unilateral request if authorized by the 
applicable collective bargaining agreement, statute, regulation, court 
order, or other binding authority, and payment of additional fees. This 
paragraph is subject to Sec. Sec.  1404.9 and 1404.10. OA may decline 
to furnish an additional panel, or may hold the request in abeyance, if 
OA determines under Sec.  1404.9(b) that furnishing the additional 
panel would be inconsistent with applicable law, a court order, or 
FMCS's statutory or regulatory authority.

0
5. Amend Sec.  1404.12 by revising paragraphs (b) and (c) to read as 
follows:


Sec.  1404.12  Selection by parties and appointment of arbitrators.

* * * * *
    (b) Where the parties' collective bargaining agreement permits each 
party to separately notify OA of its ranked order of preference, or is 
silent on the manner of selecting arbitrators, FMCS will ask each party 
to advise OA of its order of preference by numbering each name on the 
panel and submitting the numbered list in writing to OA. Upon receiving 
the rank order from one party, OA will notify the other party that it 
has fourteen (14) days in which to submit its selections. Where both 
parties respond, the name that has the lowest combined number will be 
appointed. If the other party fails to respond, the first party's 
choice will be honored. This paragraph is subject to Sec.  1404.9(b) 
and does not require OA to make an appointment where OA determines that 
the appointment would be inconsistent with applicable law, a court 
order, or FMCS's statutory or regulatory authority.
    (c) Subject to Sec. Sec.  1404.9 and 1404.10, OA will make a direct 
appointment of an arbitrator only upon joint request or as otherwise 
provided by this part.

    Dated: August 26, 2026.
Anna Davis,
General Counsel.
[FR Doc. 2026-17652 Filed 8-27-26; 8:45 am]
BILLING CODE 6732-01-P


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