Amendment to Memorandum Describing the Authority and Assigned Responsibilities of the General Counsel of the Federal Labor Relations Authority

Issuing agencies

Abstract

The Federal Labor Relations Authority (FLRA) publishes this document to implement the vacatur of Section I.C. of the amendment to Appendix B--titled "Memorandum Describing the Authority and Assigned Responsibilities of the General Counsel of the Federal Labor Relations Authority"--published March 24, 2026 (Memo Amendment). The Memo Amendment also changed Section III of Appendix B, but that change was not vacated and is not affected by this final rule. This document reinstates the wording of Section I.C. of Appendix B as it appeared before the Memo Amendment took effect.

Full Text

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<title>Federal Register, Volume 91 Issue 198 (Thursday, October 15, 2026)</title>
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[Federal Register Volume 91, Number 198 (Thursday, October 15, 2026)]
[Rules and Regulations]
[Pages 65450-65452]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2026-21077]


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FEDERAL LABOR RELATIONS AUTHORITY

5 CFR Chapter XIV


Amendment to Memorandum Describing the Authority and Assigned 
Responsibilities of the General Counsel of the Federal Labor Relations 
Authority

AGENCY: Federal Labor Relations Authority.

ACTION: Final rule.

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SUMMARY: The Federal Labor Relations Authority (FLRA) publishes this 
document to implement the vacatur of Section I.C. of the amendment to 
Appendix B--titled ``Memorandum Describing the Authority and Assigned 
Responsibilities of the General Counsel of the Federal Labor Relations 
Authority''--published March 24, 2026 (Memo Amendment). The Memo 
Amendment also changed Section III of Appendix B, but that change was 
not vacated and is not affected by this final rule. This document 
reinstates the wording of Section I.C. of Appendix B as it appeared 
before the Memo Amendment took effect.

DATES: This final rule is effective on October 15, 2026.

FOR FURTHER INFORMATION CONTACT: Thomas Tso, Solicitor, at 
<a href="/cdn-cgi/l/email-protection#6f1c0003020e06032f09031d0e41080019"><span class="__cf_email__" data-cfemail="3e4d5152535f57527e58524c5f10595148">[email&#160;protected]</span></a> or at (771) 444-5778.

SUPPLEMENTARY INFORMATION:

I. Background

    On March 24, 2026, the FLRA published the Memo Amendment. Amendment 
to Memo. Describing the Authority and Assigned Responsibilities of the 
General Counsel of the Federal Labor Relations Authority, 91 FR 13949 
(Mar. 24, 2026) (Member Anne Wagner dissenting). The Memo Amendment was 
effective April 23, 2026. Id. at 13949. In a memorandum and order on 
June 29, 2026, the United States District Court for the District of 
Massachusetts held that the Memo Amendment and its April 23, 2026, 
effective date were arbitrary and capricious. See AFGE, AFL-CIO v. 
FLRA, 838 F.Supp.3d 90 (D. Mass. June 29, 2026). In a final judgment on 
July 8, 2026, the District Court vacated the Memo Amendment's changes 
to Section I.C., but not changes to Section III, of Appendix B. See 
id.,

[[Page 65451]]

Final J., Dkt. No. 45 (D. Mass. July 8, 2026). In order to implement 
the District Court's vacatur, this document reinstates the wording of 
Section I.C. of Appendix B as it appeared before the Memo Amendment 
took effect. This reinstated Section I.C. was already in effect as a 
matter of law due to the District Court's decision, but this 
publication restores its appearance in the Code of Federal Regulations. 
The FLRA has sought reconsideration of the District Court's decision. 
The FLRA will issue a superseding notice in the Federal Register if the 
District Court's decision is vacated.

II. Procedural and Other Matters

    Section 553(b) of the Administrative Procedure Act, 5 U.S.C. 
553(b), provides that when an agency for good cause finds that notice-
and-comment procedures are impracticable, unnecessary, or contrary to 
the public interest, the agency may issue a rule without providing 
notice and an opportunity for comment. The FLRA has determined that 
there is good cause for dispensing with an opportunity for comment, 
inasmuch as this rule merely conforms the text in the Code of Federal 
Regulations to the requirements of the District Court's decision.
    Additionally, the FLRA finds that providing notice and an 
opportunity to comment is unnecessary because the FLRA is simply 
conducting the ministerial task of implementing the final judgment of 
the District Court.
    Further, the FLRA finds good cause to make the revisions 
immediately effective under Sec.  553(d)(3) of the Administrative 
Procedure Act. See id. 553(d)(3). Section 553(d)(3) provides that final 
rules shall not become effective until 30 days after publication in the 
Federal Register, ``except . . . as otherwise provided by the agency 
for good cause,'' among other exceptions. Id. The purpose of this 
provision is to ``give affected parties a reasonable time to adjust 
their behavior before the final rule takes effect.'' Omnipoint Corp. v. 
FCC, 78 F.3d 620, 630 (D.C. Cir. 1996). The FLRA has determined that 
there is good cause for making this final rule effective immediately 
because it merely implements the District Court's decision that already 
vacated the Memo Amendment's changes to Section I.C. of Appendix B. 
Accordingly, this final rule is effective immediately upon publication.

E.O. 12866

    Pursuant to E.O. 12866 (``Regulatory Planning and Review''), as 
amended by E.O. 14215, a determination must be made whether a 
regulatory action is significant and therefore subject to review by the 
Office of Management and Budget (OMB) in accordance with the 
requirements of the E.O.
    E.O. 13563 (``Improving Regulation and Regulatory Review'') 
supplements and reaffirms the principles, structures, and definitions 
governing contemporary regulatory review established in E.O. 12866.
    This final rule was drafted and reviewed in accordance with E.O. 
12866 and E.O. 13563. OMB has determined that this final rule is not a 
``significant regulatory action'' as defined in section 3(f)(1) of E.O. 
12866.
    E.O. 14192 (``Unleashing Prosperity Through Deregulation'') 
requires that any new incremental costs associated with new regulations 
shall, to the extent permitted by law, be offset by the elimination of 
existing costs associated with at least 10 prior regulations. This FLRA 
must adopt this final rule to comply with a court decision and does not 
anticipate any new incremental costs associated with the rule.

Regulatory Flexibility Act Certification

    Pursuant to Sec.  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.

E.O. 13132, Federalism

    The FLRA is an independent regulatory agency, and as such, is not 
subject to the requirements of E.O. 13132.
    This final rule will not have substantial direct effects on the 
states, on the relationship between the national government and the 
states, or on distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with E.O. 13132, 
this final rule does not have sufficient federalism implications to 
warrant preparation of a federalism assessment.

E.O. 12988, Civil Justice Reform

    This final rule meets the applicable standard set forth in section 
3(a) and (b)(2) of E.O. 12988.

E.O. 13175, Consultation and Coordination With Indian Tribal 
Governments

    This final rule does not have tribal implications under E.O. 13175, 
because it would not have a substantial direct effect on one or more 
Indian tribes, on the relationship between the federal government and 
Indian tribes, or on the distribution of power and responsibilities 
between the federal government and Indian tribes.

E.O. 14294, Overcriminalization of Federal Regulations

    E.O. 14294 requires agencies promulgating regulations with criminal 
regulatory offenses potentially subject to criminal enforcement to 
explicitly describe the conduct subject to criminal enforcement, the 
authorizing statutes, and the mens rea standard applicable to each 
element of those offenses. This final rule does not impose a criminal 
regulatory penalty and is thus exempt from E.O. 14924's requirements.

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 Sec.  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 foreign-based 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 Appendix B to 5 CFR Chapter XIV

    Federal employees, Labor management relations, Administrative 
practice and procedure, Federal Labor Relations Authority.

    For the reasons stated in the preamble, the Federal Labor Relations 
Authority amends appendix B to 5 CFR chapter XIV as follows:

[[Page 65452]]

Appendix B to 5 CFR Chapter XIV--Memorandum Describing the Authority 
and Assigned Responsibilities of the General Counsel of the Federal 
Labor Relations Authority

0
1. The authority citation for appendix B continues to read follows:

    Authority: 3 U.S.C. 431; 5 U.S.C. 7105(d), 7134.
    Section I.C. also issued under 5 U.S.C. 7105(e)(1), (f).


0
 2. Amend appendix B by revising section I.C. to read as follows:

Appendix B to 5 CFR Chapter XIV--Memorandum Describing the Authority 
and Assigned Responsibilities of the General Counsel of the Federal 
Labor Relations Authority

* * * * *
    I. * * *
    C. Representation cases. The statutory authority of the Federal 
Labor Relations Authority to delegate to Regional Directors its 
authority to process and determine representation matters is set forth 
in section 7105(e)(1) and (f) of the Statute as follows:
    (e)(1) The Authority may delegate to any regional director its 
authority under this chapter--
    (A) to determine whether a group of employees is an appropriate 
unit;
    (B) to conduct investigations and to provide for hearings;
    (C) to determine whether a question of representation exists and to 
direct an election; and
    (D) to supervise or conduct secret ballot elections and certify the 
results thereof.
    (f) If the Authority delegates any authority to any regional 
director . . . to take any action pursuant to subsection (e) of this 
section, the Authority may, upon application by any interested person 
filed within 60 days after the date of the action, review such action, 
but the review shall not, unless specifically ordered by the Authority, 
operate as a stay of action. The Authority may affirm, modify, or 
reverse any action reviewed under this subsection. If the Authority 
does not undertake to grant review of the action under this subsection 
within 60 days after the later of--
    (1) the date of the action, or
    (2) the date of the filing of any application under this subsection 
for review of the action;
    the action shall become the action of the Authority at the end of 
such 60 day period.
    In accordance with section 7105(e)(1) and (f) of the Statute, 
Regional Directors, who are directed and supervised by the General 
Counsel as provided by section III of this memorandum, are hereby 
delegated the authority to determine whether a group of employees is an 
appropriate unit, to conduct investigations and to provide for 
hearings, to determine whether a question of representation exists and 
to direct an election, and to supervise or conduct secret ballot 
elections and certify the results thereof.
    Regional Directors are authorized and have responsibility to 
receive and process, in accordance with decisions of the Authority and 
the rules and regulations of the Authority and the General Counsel, all 
petitions filed pursuant to sections 7111, 7112(d), 7113, 7115, and 
7117(d) of the Statute.
    The authority and responsibility of Regional Directors in cases 
filed involving such petitions shall extend to all phases of the 
investigation of such petitions through the conclusion of the hearing 
to be conducted by a Regional Office employee (if a hearing should be 
necessary to resolve disputed issues), including decisional action by 
the Regional Director after such investigation or hearing.
    Regional Directors also are authorized and have responsibility to 
direct an election after a hearing pursuant to sections 7111 and 
7112(d) of the Statute and to approve consent election agreements in 
accordance with section 7111(g) of the Statute.
    In the event a Regional Director directs an election or approves a 
consent election agreement, the Regional Director is authorized to 
supervise or conduct the election pursuant to sections 7111 and 7112(d) 
of the Statute. In such instances, Regional Directors are authorized 
and have responsibility to determine the validity of determinative 
challenges and objections to the conduct of the election and other 
similar matters. This authority and responsibility extends to all 
phases of the investigation such determinative challenges and 
objections through the conclusion of a hearing to be conducted by a 
Regional Office employee (if a hearing should be necessary to resolve 
disputed issues), including decisional action by the Regional Director 
after such investigation or hearing.
    Decisions and Orders of Regional Directors made pursuant to this 
delegation of authority become the action of the Authority:
    (1) If no interested person files an application for review of the 
Regional Director's Decision and Order with the Authority within sixty 
(60) days after the Regional Director's Decision and Order; or
    (2) If the Authority does not undertake to grant review of the 
Regional Director's Decision and Order within sixty (60) days after the 
filing of a timely application for review;
    If no interested person files an application for review of the 
Regional Director's Decision and Order with the Authority within (60) 
days after the Regional Director's Decision and Order, or if the 
Authority does not undertake to grant review of the action of the 
regional Director's Decision and Order within sixty (60) days after the 
filing of a timely application for review, the Regional Director's 
Decision and Order will become final and binding, and the Regional 
Director will certify to the parties the results of any election held 
or issue any clarification of unit, amendment of recognition or 
certification, determination of eligibility for dues allotment, or 
certification on consolidation of units as required.
    The Authority will undertake to grant review of a Decision and 
Order of a Regional Director upon the timely filing of an application 
for review only where compelling reasons exist therefor as set forth in 
the rules and regulations.
    The Authority's granting of review upon the timely filing of an 
application for review of a Regional Director's Decision and Order will 
not operate as a stay of such action ordered by the Regional Director, 
unless specifically ordered by the Authority. If the Authority grants 
review, the Authority may affirm, modify or reverse action reviewed.
* * * * *

    By the Authority.
Rebecca J. Osborne,
Deputy Solicitor.
[FR Doc. 2026-21077 Filed 10-14-26; 8:45 am]
BILLING CODE 7627-01-P


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