Notice of Opportunity To Comment on a Request for a General Statement of Policy or Guidance on Agency-Head Review of Agreements That Continue in Force Until New Agreements Are Reached, 3858-3859 [2020-01007]

Download as PDF 3858 Federal Register / Vol. 85, No. 15 / Thursday, January 23, 2020 / Proposed Rules rationale for why catch-up contributions cannot be matched. FERSA section 8432(c)(2) says nothing about catch-up contributions—it simply says that matching contributions cannot exceed a dollar-for-dollar match on the first 3% of basic pay that a participant contributes plus 50 cents on the dollar match for the next 2% of basic pay that a participant contributes. Removing the restriction on matching catch-up contributions will not increase an employing agency’s potential outlay for matching contributions as the 5% limit described in the preceding sentence still applies. FERSA section 8432(c)(2) can justify a prohibition on matching catchup contributions only if we assume that a participant will necessarily reach the FERSA section 8432(c)(2) limit on matching contributions before, or at the same time as, he/she reaches the IRC section 402(g) or 415(c) limit on contributions. To whatever extent this assumption was accurate in 2003, it is no longer accurate today. Today, it is not uncommon for a participant to reach one of the IRC’s limits on contributions before he/she reaches FERSA’s limit on matching contributions. Section 1605.13 Back Pay Awards and Other Retroactive Pay Adjustments The FRTIB proposes to amend § 1605.13 by making a technical conforming addition to paragraph (c)(2). This paragraph currently says that any corrective contributions attributable to prior years must not exceed the 402(g) limit or the 415(c) limit applicable to those years. The FRTIB proposes to add language making it clear that such contributions also cannot exceed the 414(v) catch-up contribution limit applicable to prior years. jbell on DSKJLSW7X2PROD with PROPOSALS Regulatory Flexibility Act I certify that this regulation will not have a significant economic impact on a substantial number of small entities. This regulation will affect Federal employees, members of the uniformed services who participate in the Thrift Savings Plan, and their beneficiaries. The TSP is a Federal defined contribution retirement savings plan created by FERSA and is administered by the Agency. Paperwork Reduction Act I certify that these regulations do not require additional reporting under the Paperwork Reduction Act. Unfunded Mandates Reform Act of 1995 Pursuant to the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 602, 632, 653, 1501–1571, the effects of this VerDate Sep<11>2014 16:48 Jan 22, 2020 Jkt 250001 regulation on state, local, and tribal governments and the private sector have been assessed. This regulation will not compel the expenditure in any one year of $100 million or more by state, local, and tribal governments, in the aggregate, or by the private sector. Therefore, a statement under § 1532 is not required. List of Subjects 5 CFR Part 1600 Taxes, Claims, Government employees, Pensions, Retirement. 5 CFR Part 1605 Claims, Government employees, Pensions, Retirement. Ravindra Deo, Executive Director, Federal Retirement Thrift Investment Board. For the reasons stated in the preamble, the FRTIB proposes to amend 5 CFR chapter VI as follows: PART 1600—EMPLOYEE CONTRIBUTION ELECTIONS, CONTRIBUTION ALLOCATIONS, AND AUTOMATIC ENROLLMENT PROGRAM 1. The authority citation for part 1600 continues to read as follows: ■ Authority: 5 U.S.C. 8351, 8432(a), 8432(b), 8432(c), 8432(j), 8432d, 8474(b)(5) and (c)(1), and 8440e. 2. Amend § 1600.23 by removing and reserving paragraphs (b) and (h). ■ PART 1605—CORRECTION OF ADMINISTRATIVE ERRORS 1. The authority citation for part 1605 continues to read as follows: ■ Authority: 5 U.S.C. 8351, 8432a, 8432d, 8474(b)(5) and (c)(1). Subpart B also issued under section 1043(b) of Public Law 104– 106, 110 Stat. 186 and § 7202(m)(2) of Public Law 101–508, 104 Stat. 1388. ■ 2. Amend § 1605.13 to read as follows: § 1605.13 Back pay awards and other retroactive pay adjustments. * * * * * (c) * * * (1) * * * (2) Must not cause the participant to exceed the annual contribution limit(s) contained in sections 402(g), 415(c), or 414(v) of the I.R.C. (26 U.S.C. 402(g), 415(c), 414(v)) for the year(s) with respect to which the contributions are being made, taking into consideration the TSP contributions already made in (or with respect to) that year; and * * * * * [FR Doc. 2020–00610 Filed 1–22–20; 8:45 am] BILLING CODE 6760–01–P PO 00000 Frm 00002 Fmt 4702 Sfmt 4702 FEDERAL LABOR RELATIONS AUTHORITY 5 CFR Part 2427 [FLRA Docket No. 0–PS–46] Notice of Opportunity To Comment on a Request for a General Statement of Policy or Guidance on Agency-Head Review of Agreements That Continue in Force Until New Agreements Are Reached Federal Labor Relations Authority. ACTION: Proposed issuance of a general statement of policy or guidance. AGENCY: The Federal Labor Relations Authority (Authority) solicits written comments on a request from the U.S. Department of Agriculture (USDA) for a general statement of policy or guidance (general statement) concerning expiring collective-bargaining agreements that state that they will remain in force until the parties reach new agreements. USDA asks for a general statement holding that, if an expiring agreement continues in force during renegotiations, then an agency head may review the legality of the expiring agreement as early as the agency head could review an expiring agreement that was renewed automatically for a fixed term. Comments are solicited on whether the Authority should issue a general statement, and, if so, what the Authority’s policy or guidance should be. DATES: To be considered, comments must be received on or before February 24, 2020. ADDRESSES: You may send comments, which must include the caption ‘‘USDA (Petitioner), Case No. 0–PS–46,’’ by one of the following methods: • Email: FedRegComments@flra.gov. Include ‘‘USDA (Petitioner), Case No. 0–PS–46’’ in the subject line of the message. • Mail or Hand Delivery: Emily Sloop, Chief, Case Intake and Publication, Federal Labor Relations Authority, Docket Room, Suite 200, 1400 K Street NW, Washington, DC 20424–0001. Instructions: Do not mail or hand deliver written comments if they have been submitted via email. Interested persons who mail or hand deliver written comments must submit an original and 4 copies of each written comment, with any enclosures, on 81⁄2 x 11 inch paper. FOR FURTHER INFORMATION CONTACT: Emily Sloop, Chief, Case Intake and Publication, Federal Labor Relations Authority, (202) 218–7740. SUMMARY: E:\FR\FM\23JAP1.SGM 23JAP1 Federal Register / Vol. 85, No. 15 / Thursday, January 23, 2020 / Proposed Rules In Case No. 0–PS–46, USDA requests that the Authority issue a general statement concerning agency-head review of expiring collective-bargaining agreements that state that they will remain in force until the parties reach new agreements. Interested persons are invited to express their views in writing as to whether the Authority should issue a general statement and, if it does, what the Authority’s policy or guidance should be. jbell on DSKJLSW7X2PROD with PROPOSALS SUPPLEMENTARY INFORMATION: Proposed Guidance To Heads of Agencies, Presidents of Labor Organizations, and Other Interested Persons: USDA has requested, under Section 2427.2(a) of the Authority’s rules and regulations (5 CFR 2427.2(a)), that the Authority issue a general statement of policy or guidance addressing when an agency head may, under Section 7114(c) of the Federal Service LaborManagement Relations Statute (the Statute), review the legality of an expiring collective-bargaining agreement that continues in force during renegotiations. Section 7114(c)(1) of the Statute states that ‘‘[a]n agreement between any agency and an exclusive representative shall be subject to approval by the head of the agency,’’ and Section 7114(c)(2) states, in pertinent part, that ‘‘[t]he head of the agency shall approve the agreement within [thirty] days from the date the agreement is executed if the agreement is in accordance with the provisions of [the Statute] and any other applicable law, rule, or regulation.’’ A different provision of the Statute— Section 7116(a)(7)—makes it an unfair labor practice for an agency ‘‘to enforce any rule or regulation (other than a rule or regulation implementing’’ 5 U.S.C. 2302, which concerns prohibited personnel practices) that ‘‘is in conflict with any applicable collective[-] bargaining agreement if the agreement was in effect before the date the rule or regulation was prescribed.’’ In other words, in most cases, if rules or regulations change while an agreement is in effect, and the changes conflict with that agreement, then Section 7116(a)(7) forbids an agency from enforcing those changes until the agreement is no longer in effect. But if such changes concern rules or regulations that implement the ban on prohibited personnel practices, then an agency may enforce those changes immediately, even if they conflict with a preexisting agreement. The Authority has previously addressed how to apply Sections 7114(c) and 7116(a)(7) in cases where VerDate Sep<11>2014 16:48 Jan 22, 2020 Jkt 250001 parties specify that, unless one or both of them request to renegotiate an expiring agreement, the agreement will be automatically renewed (or rolled over) for another term at the end of its current term. In such cases, the Authority has held that an automatically renewed agreement is subject to agencyhead review under Section 7114(c), and that the automatically renewed agreement must comply with any government-wide rules or regulations that changed during the agreement’s previous term. Kan. Army Nat’l Guard, Topeka, Kan., 47 FLRA 937, 942 (1993). The Authority has also clarified that, in the context of automatically renewed agreements, the thirty-day period for agency-head review under Section 7114(c) begins ‘‘the day after the expiration of the contractual window period for requesting renegotiation of the expiring agreement.’’ Id. at 943. USDA asks that the Authority clarify when an agency head may review the legality of an expiring agreement that includes a provision stating that, where renegotiations are requested, the existing agreement continues in force until the parties reach a new one (a continuance provision). Citing the Authority’s decision in U.S. Department of the Army, Headquarters III Corps & Fort Hood, Fort Hood, Texas, 40 FLRA 636 (1991) (Ford Hood), USDA asserts that some arbitrators interpret continuance provisions to mean that, once renegotiations are requested, the existing agreement does not expire until renegotiations are complete, even if the agreement specifies an expiration date that passes during renegotiations. According to USDA, the consequence of such an interpretation is that, under § 7116(a)(7) of the Statute, for as long as the parties’ renegotiations take, an agency may not enforce rule or regulation changes that occurred during the agreement’s originally specified term. USDA asserts that a continuance provision that is interpreted in this manner is unjust because an agency that allows automatic renewal can enforce rule and regulation changes much earlier than an agency that requests renegotiations. By contrast, citing the Authority’s decision in U.S. Department of Commerce, Patent & Trademark Office, 65 FLRA 817 (2011) (Commerce), USDA asserts that other arbitrators interpret continuance provisions to mean that, even when renegotiations are requested, an agreement expires on the date that the parties originally specified, but the continuance provision causes the expired agreement to renew automatically for an additional term that lasts as long as the parties’ PO 00000 Frm 00003 Fmt 4702 Sfmt 9990 3859 renegotiations take. According to USDA, this interpretation allows an agency to enforce rule or regulation changes that occurred during the agreement’s originally specified term throughout most, if not all, of the parties’ renegotiations without violating Section 7116(a)(7) of the Statute. But USDA contends that an agency cannot know in advance whether an arbitrator will interpret a continuance provision in the manner discussed in Ford Hood or Commerce. USDA contends that, in order to avoid violating Section 7116(a)(7), an agency must assume that a continuance provision will be interpreted like the one in Fort Hood, thereby preventing the agency from enforcing rule and regulation changes for an indefinite and unknowable period of time during renegotiations. In its request, USDA asks the Authority to issue a general statement holding that: 1. When a party requests to renegotiate an expiring agreement that contains a provision stating that the agreement remains in force until a new agreement is reached, an agency head may review the legality of the expiring agreement as early as Section 7114(c) of the Statute would allow the agency head to do so if the expiring agreement were automatically renewed; and 2. An expiring agreement that remains in force until the parties reach a new agreement is effectively renewed automatically every day, so, for as long as the expiring agreement continues in force during renegotiations, a new agency-head-review period begins each day. Regarding the matters raised by USDA, the Authority invites written comments on whether issuance of a general statement of policy or guidance is warranted, under the standards set forth in Section 2427.5 of the Authority’s rules and regulations (5 CFR 2427.5), and, if so, what the Authority’s policy or guidance should be. Written comments must contain separate, numbered headings for each issue covered. Dated: January 16, 2020. Noah Peters, Solicitor, Federal Labor Relations Authority. [FR Doc. 2020–01007 Filed 1–22–20; 8:45 am] BILLING CODE 6727–01–P E:\FR\FM\23JAP1.SGM 23JAP1

Agencies

Federal Labor Relations Authority

[Federal Register Volume 85, Number 15 (Thursday, January 23, 2020)]
[Proposed Rules]
[Pages 3858-3859]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-01007]


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FEDERAL LABOR RELATIONS AUTHORITY

5 CFR Part 2427

[FLRA Docket No. 0-PS-46]


Notice of Opportunity To Comment on a Request for a General 
Statement of Policy or Guidance on Agency-Head Review of Agreements 
That Continue in Force Until New Agreements Are Reached

AGENCY: Federal Labor Relations Authority.

ACTION: Proposed issuance of a general statement of policy or guidance.

-----------------------------------------------------------------------

SUMMARY: The Federal Labor Relations Authority (Authority) solicits 
written comments on a request from the U.S. Department of Agriculture 
(USDA) for a general statement of policy or guidance (general 
statement) concerning expiring collective-bargaining agreements that 
state that they will remain in force until the parties reach new 
agreements. USDA asks for a general statement holding that, if an 
expiring agreement continues in force during renegotiations, then an 
agency head may review the legality of the expiring agreement as early 
as the agency head could review an expiring agreement that was renewed 
automatically for a fixed term. Comments are solicited on whether the 
Authority should issue a general statement, and, if so, what the 
Authority's policy or guidance should be.

DATES: To be considered, comments must be received on or before 
February 24, 2020.

ADDRESSES: You may send comments, which must include the caption ``USDA 
(Petitioner), Case No. 0-PS-46,'' by one of the following methods:
     Email: [email protected]. Include ``USDA 
(Petitioner), Case No. 0-PS-46'' in the subject line of the message.
     Mail or Hand Delivery: Emily Sloop, Chief, Case Intake and 
Publication, Federal Labor Relations Authority, Docket Room, Suite 200, 
1400 K Street NW, Washington, DC 20424-0001.
    Instructions: Do not mail or hand deliver written comments if they 
have been submitted via email. Interested persons who mail or hand 
deliver written comments must submit an original and 4 copies of each 
written comment, with any enclosures, on 8\1/2\ x 11 inch paper.

FOR FURTHER INFORMATION CONTACT: Emily Sloop, Chief, Case Intake and 
Publication, Federal Labor Relations Authority, (202) 218-7740.

[[Page 3859]]


SUPPLEMENTARY INFORMATION: In Case No. 0-PS-46, USDA requests that the 
Authority issue a general statement concerning agency-head review of 
expiring collective-bargaining agreements that state that they will 
remain in force until the parties reach new agreements. Interested 
persons are invited to express their views in writing as to whether the 
Authority should issue a general statement and, if it does, what the 
Authority's policy or guidance should be.

Proposed Guidance

    To Heads of Agencies, Presidents of Labor Organizations, and Other 
Interested Persons:
    USDA has requested, under Section 2427.2(a) of the Authority's 
rules and regulations (5 CFR 2427.2(a)), that the Authority issue a 
general statement of policy or guidance addressing when an agency head 
may, under Section 7114(c) of the Federal Service Labor-Management 
Relations Statute (the Statute), review the legality of an expiring 
collective-bargaining agreement that continues in force during 
renegotiations. Section 7114(c)(1) of the Statute states that ``[a]n 
agreement between any agency and an exclusive representative shall be 
subject to approval by the head of the agency,'' and Section 7114(c)(2) 
states, in pertinent part, that ``[t]he head of the agency shall 
approve the agreement within [thirty] days from the date the agreement 
is executed if the agreement is in accordance with the provisions of 
[the Statute] and any other applicable law, rule, or regulation.''
    A different provision of the Statute--Section 7116(a)(7)--makes it 
an unfair labor practice for an agency ``to enforce any rule or 
regulation (other than a rule or regulation implementing'' 5 U.S.C. 
2302, which concerns prohibited personnel practices) that ``is in 
conflict with any applicable collective[-] bargaining agreement if the 
agreement was in effect before the date the rule or regulation was 
prescribed.'' In other words, in most cases, if rules or regulations 
change while an agreement is in effect, and the changes conflict with 
that agreement, then Section 7116(a)(7) forbids an agency from 
enforcing those changes until the agreement is no longer in effect. But 
if such changes concern rules or regulations that implement the ban on 
prohibited personnel practices, then an agency may enforce those 
changes immediately, even if they conflict with a preexisting 
agreement.
    The Authority has previously addressed how to apply Sections 
7114(c) and 7116(a)(7) in cases where parties specify that, unless one 
or both of them request to renegotiate an expiring agreement, the 
agreement will be automatically renewed (or rolled over) for another 
term at the end of its current term. In such cases, the Authority has 
held that an automatically renewed agreement is subject to agency-head 
review under Section 7114(c), and that the automatically renewed 
agreement must comply with any government-wide rules or regulations 
that changed during the agreement's previous term. Kan. Army Nat'l 
Guard, Topeka, Kan., 47 FLRA 937, 942 (1993). The Authority has also 
clarified that, in the context of automatically renewed agreements, the 
thirty-day period for agency-head review under Section 7114(c) begins 
``the day after the expiration of the contractual window period for 
requesting renegotiation of the expiring agreement.'' Id. at 943.
    USDA asks that the Authority clarify when an agency head may review 
the legality of an expiring agreement that includes a provision stating 
that, where renegotiations are requested, the existing agreement 
continues in force until the parties reach a new one (a continuance 
provision). Citing the Authority's decision in U.S. Department of the 
Army, Headquarters III Corps & Fort Hood, Fort Hood, Texas, 40 FLRA 636 
(1991) (Ford Hood), USDA asserts that some arbitrators interpret 
continuance provisions to mean that, once renegotiations are requested, 
the existing agreement does not expire until renegotiations are 
complete, even if the agreement specifies an expiration date that 
passes during renegotiations. According to USDA, the consequence of 
such an interpretation is that, under Sec.  7116(a)(7) of the Statute, 
for as long as the parties' renegotiations take, an agency may not 
enforce rule or regulation changes that occurred during the agreement's 
originally specified term. USDA asserts that a continuance provision 
that is interpreted in this manner is unjust because an agency that 
allows automatic renewal can enforce rule and regulation changes much 
earlier than an agency that requests renegotiations.
    By contrast, citing the Authority's decision in U.S. Department of 
Commerce, Patent & Trademark Office, 65 FLRA 817 (2011) (Commerce), 
USDA asserts that other arbitrators interpret continuance provisions to 
mean that, even when renegotiations are requested, an agreement expires 
on the date that the parties originally specified, but the continuance 
provision causes the expired agreement to renew automatically for an 
additional term that lasts as long as the parties' renegotiations take. 
According to USDA, this interpretation allows an agency to enforce rule 
or regulation changes that occurred during the agreement's originally 
specified term throughout most, if not all, of the parties' 
renegotiations without violating Section 7116(a)(7) of the Statute. But 
USDA contends that an agency cannot know in advance whether an 
arbitrator will interpret a continuance provision in the manner 
discussed in Ford Hood or Commerce. USDA contends that, in order to 
avoid violating Section 7116(a)(7), an agency must assume that a 
continuance provision will be interpreted like the one in Fort Hood, 
thereby preventing the agency from enforcing rule and regulation 
changes for an indefinite and unknowable period of time during 
renegotiations.
    In its request, USDA asks the Authority to issue a general 
statement holding that:
    1. When a party requests to renegotiate an expiring agreement that 
contains a provision stating that the agreement remains in force until 
a new agreement is reached, an agency head may review the legality of 
the expiring agreement as early as Section 7114(c) of the Statute would 
allow the agency head to do so if the expiring agreement were 
automatically renewed; and
    2. An expiring agreement that remains in force until the parties 
reach a new agreement is effectively renewed automatically every day, 
so, for as long as the expiring agreement continues in force during 
renegotiations, a new agency-head-review period begins each day.
    Regarding the matters raised by USDA, the Authority invites written 
comments on whether issuance of a general statement of policy or 
guidance is warranted, under the standards set forth in Section 2427.5 
of the Authority's rules and regulations (5 CFR 2427.5), and, if so, 
what the Authority's policy or guidance should be. Written comments 
must contain separate, numbered headings for each issue covered.

    Dated: January 16, 2020.
Noah Peters,
Solicitor, Federal Labor Relations Authority.
[FR Doc. 2020-01007 Filed 1-22-20; 8:45 am]
 BILLING CODE 6727-01-P

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