FMCS Clarifies When It Can Provide—and Charge For—Arbitration Panels
Published Date: 10/29/2026
Rule
Summary
The Federal Mediation and Conciliation Service (FMCS) finalized new rules about how it handles requests for arbitration panels. These rules explain when FMCS can say no to providing a panel, make direct appointments, or charge fees. The changes affect unions and employers involved in collective bargaining and have been effective since August 4, 2026, with the final rule starting October 29, 2026.
Analyzed Economic Effects
6 provisions identified: 4 benefits, 2 costs, 0 mixed.
FMCS can decline or hold panel requests
FMCS’s Office of Arbitration (OA) may perform a limited legal inquiry under revised 29 CFR 1404.9(b)(3) 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 authority. After that inquiry OA may issue the panel or appointment, decline to provide the requested service, hold the request in abeyance, or take other administratively appropriate action. The interim rule implementing this has been in effect since August 4, 2026, and the final rule is effective October 29, 2026.
Seven-name unilateral panel still available
FMCS retained the rule that OA will, upon request, refer a randomly selected panel of seven arbitrators (a seven-name panel) to parties to an agreement to arbitrate or to engage in fact-finding. Revised 29 CFR 1404.9(b)(1) and (b)(2) confirm a request for a seven-name panel may be joint or unilateral unless part 1404, applicable law, or the parties' agreement requires joint authorization.
Arbitration requests against excluded federal agencies may be denied
Where a Federal agency has been excluded from chapter 71 under 5 U.S.C. 7103(b)(1) and has terminated its collective bargaining agreement, FMCS may decline to furnish a panel or make an appointment because section 7121 and related statutory authority no longer apply to that agency. FMCS will also act in accordance with applicable court orders and seek the responding agency’s consent when necessary.
Written notice, preserved date, and reconsideration rights
New Sec. 1404.9(b)(5) requires OA to notify parties in writing if it declines or holds a request and to explain the basis for the decision. A request held in abeyance retains its original date of receipt, OA will reconsider a held request upon submission of information bearing on the basis for the hold, and OA will periodically review held requests. These procedural protections accompany the threshold inquiry.
Refunds or credits if request declined or held
The final rule (new Sec. 1404.9(b)(5)) provides that a party may obtain a refund or credit of the fee paid for a request that OA declines or holds. The interim April 22, 2026, guidance had directed that FMCS charge no fee until certain requests could be processed; the final rule codifies refund/credit protections for declined or held requests.
FMCS will not decide arbitrability or merits
The rule preserves that OA will not decide the merits of a claim that a dispute is not subject to arbitration. Revised Sec. 1404.9(b)(4) and Sec. 1404.10 make clear that issuance or refusal of a panel or appointment does not constitute a decision on arbitrability, the merits of a grievance, or the rights or obligations of the parties under any agreement or law.
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Department and Agencies
Related Federal Register Documents
2026-17652, Requests for Arbitration Panels
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.
2026-15798, Requests for Arbitration Panels
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. FMCS seeks public comment on this interim final rule.
2025-08915, Arbitrator's Personal Data Questionnaire
The Federal Mediation and Conciliation Service (FMCS) is asking for public feedback on their Arbitrator's Personal Data Questionnaire, which helps keep a list of qualified arbitrators ready to settle disputes. This update ensures only the best folks make the cut, and comments are due by June 20, 2025. No big costs or changes, just a smooth way to keep arbitration fair and efficient!
2025-03699, Arbitrator's Personal Data Questionnaire
The Federal Mediation and Conciliation Service (FMCS) is updating its Arbitrator's Personal Data Questionnaire, which helps keep a list of qualified arbitrators who are private citizens, not government employees. This update asks for public feedback by May 6, 2025, to make sure the form is clear, useful, and not a hassle to fill out. No new costs are mentioned, but the changes help FMCS keep only the best arbitrators on their roster.
2025-03701, Arbitrator's Report and Fee Statement
The Federal Mediation and Conciliation Service (FMCS) is asking for public feedback on a form called the Arbitrator's Report and Fee Statement (FMCS Form R-19). This form helps FMCS track arbitration work and fees, making sure everything runs smoothly and fairly. Comments on this info collection are due by May 6, 2025, and could impact how arbitrators report their work and fees.
2026-20560, Statement of Organization and Functions
The Federal Mediation and Conciliation Service (FMCS) updated its organization and how it works, effective October 1, 2026. This change affects all FMCS staff and partners by clarifying roles and improving how the agency supports labor dispute mediation. No new costs or delays are expected, just a fresh, clear way to keep commerce flowing smoothly.
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