FMCS Terms of Service, 60409-60411 [2023-18970]
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Federal Register / Vol. 88, No. 169 / Friday, September 1, 2023 / Proposed Rules
the availability of this material at the FAA,
call (817) 222–5110.
(5) You may view this service information
that is incorporated by reference at the
National Archives and Records
Administration (NARA). For information on
the availability of this material at NARA,
email: fr.inspection@nara.gov, or go to:
www.archives.gov/federal-register/cfr/ibrlocations.html.
Issued on August 28, 2023.
Victor Wicklund,
Deputy Director, Compliance & Airworthiness
Division, Aircraft Certification Service.
[FR Doc. 2023–18827 Filed 8–31–23; 8:45 am]
II. Analysis of the Regulations
BILLING CODE 4910–13–P
Section 1406.1
Service
FEDERAL MEDIATION AND
CONCILIATION SERVICE
Paragraphs (a) through (g) set forth general
terms of service applicable to all FMCS
services. More specifically:
Paragraph (a) explains that when FMCS
services are chosen, recipients of the services
agree to abide by the terms as well as any
other terms of services provided by FMCS
and will hold FMCS and any FMCS neutral
harmless.
Paragraph (b) notes FMCS will determine
the date, time, and manner of services in
accordance with applicable statutes and
regulations.
Paragraph (d) explains that any person
shadowing an FMCS neutral agrees to be
bound by the same confidentiality standards
as the FMCS neutral, which will be honored
by the parties.
Paragraph (e) notes that FMCS recognizes
the importance of mediator confidentiality,
and as such FMCS will not produce materials
related to a mediation, with some exceptions.
Paragraph (f) states that’s the section does
not negate or modify FMCS’s Confidential
Commercial Information (CCI) regulation.
Paragraph (g) discusses that FMCS will
make the terms publicly available and make
a copy available to all parties upon request.
29 CFR Part 1406
RIN 3076–AA26
FMCS Terms of Service
Federal Mediation and
Conciliation Service.
ACTION: Notice of proposed rulemaking.
AGENCY:
The Federal Mediation and
Conciliation Service (FMCS) is issuing
this proposed rule for FMCS clients.
This rulemaking sets forth terms for
FMCS’s provision of services. This
rulemaking further expounds upon
confidentiality rules associated with
FMCS’s services.
DATES: Comments must be submitted on
or before October 31, 2023.
ADDRESSES: You may submit comments,
in writing, to FMCS on this proposed
rule, identified by RIN 3076–AA26, by
any of the following methods:
• Email: register@fmcs.gov. Include
the reference ‘‘Proposed Rule FMCS
Terms of Service, RIN 3076–AA26’’ in
the subject line of the message.
• Mail: FMCS, One Independence
Square, 250 E Street SW, Washington,
DC 20427, Attention: Alisa Zimmerman,
Deputy General Counsel.
FOR FURTHER INFORMATION CONTACT:
Alisa Zimmerman, Deputy General
Counsel, Office of General Counsel,
Federal Mediation and Conciliation
Service, 250 E St SW, Washington, DC
20427; Office/Fax/Mobile 202–606–
5488; azimmerman@fmcs.gov.
SUPPLEMENTARY INFORMATION:
SUMMARY:
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communication, and responsive
strategies. Through our mission, FMCS
provides professional services to a wide
range of Federal, state, and local
government agencies to resolve
disputes, design conflict management
systems, build capacity for constructive
conflict management, and strengthen
inter-agency and public-private
cooperation. In offering these services,
FMCS recipients must agree to abide by
the proposed rule to preserve the
integrity of the provided services.
I. Background
The Federal Mediation and
Conciliation Service (FMCS) works to
build better, more effective workplace
relationships and mitigate the damage
from inevitable conflict through
preventive dialogue, honest
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General Terms of
Section 1406.2 Terms of Service for
Mediation, Facilitation, and Other
Alternative Dispute Resolution Services
Paragraphs (a) through (g) sets forth
additional terms of service specific to
mediation, facilitation, & other alternative
dispute resolution services provided by
FMCS.
Section 1406.3 Virtual Services—
Additional Terms of Service
Paragraphs (a) through (c) set forth
additional terms of service specific to virtual
services provided by FMCS.
Section 1406.4 Grievance Mediation
and Federal Sector Inter-Agency
Agreement Mediation—Additional
Terms of Service
Paragraphs (a) through (e) set forth
additional terms of service specific to
grievance mediations and Federal sector
inter-agency agreement mediations provided
by FMCS.
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Section 1406.5
60409
Training and Outreach
This section sets forth additional terms of
service specific to training and outreach
presentations provided by FMCS.
III. Matters of Regulatory Procedure
Administrative Procedure Act
Under 5 U.S.C. 553(a)(2), rules
relating to agency management or
personnel are exempt from the notice
and comment rulemaking requirements
of the Administrative Procedure Act
(APA). In addition, under 5 U.S.C.
553(b)(3)(A), notice and comment
rulemaking requirements do not apply
to rules concerning matters of agency
organization, procedure, or practice.
Given that the rule concerns matters of
agency management or personnel, and
organization, procedure, or practice, the
notice and comment requirements of the
APA do not apply here. Nor is a public
hearing required under 45 U.S.C. 160a.
In issuing a proposed rule on this
matter, FMCS, will consider all written
comments on this proposed rule that are
submitted by the October 31, 2023 due
date.
Executive Order 12866
This proposed rule is not a significant
rule for purposes of Executive Order
12866 and has not been reviewed by the
Office of Management and Budget.
Regulatory Flexibility Act
FMCS has determined under the
Regulatory Flexibility Act, 5 U.S.C.
chapter 6, that this proposed rule would
not have a significant economic impact
on a substantial number of small entities
because it would primarily affect FMCS
employees.
Paperwork Reduction Act
The Paperwork Reduction Act, 44
U.S.C. chapter 35, does not apply to this
proposed rule because it does not
contain any information collection
requirements that would require the
approval of the Office of Management
and Budget.
Congressional Review Act
FMCS has determined that this
proposed rule does not meet the
definition of a rule, as defined by the
Congressional Review Act, 5 U.S.C.
chapter 8, and thus does not require
review by Congress.
List of Subjects in 29 CFR Part 1406
Administrative practice and
procedure, Labor management relations.
For the reasons discussed in the
preamble, FMCS proposes to amend 29
CFR chapter XII by adding part 1406 to
read as follows:
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Federal Register / Vol. 88, No. 169 / Friday, September 1, 2023 / Proposed Rules
PART 1406—FMCS TERMS OF
SERVICE
§ 1406.2 Mediation, facilitation, and other
alternative dispute resolution services—
additional terms of service.
Sec.
1406.1 General terms of service.
1406.2 Terms of service for mediation,
facilitation, and other alternative dispute
resolution services.
1406.3 Virtual services—additional terms of
service.
1406.4 Grievance mediation and Federal
sector inter-agency agreement
mediation—additional terms of service.
1406.5 Training and outreach presentations.
The following Terms of Service
additionally apply when the FMCS
service is a mediation, facilitation,
training, and other alternative dispute
resolution service.
(a) These services are voluntary
processes that may be terminated at any
time unless otherwise provided by
statute or by agreement.
(b) The neutral has no authority to
compel resolution.
(c) These services are confidential to
the extent allowed by law. The
obligations imposed by these terms and
conditions are in addition to and do not
supersede any obligations imposed by
applicable state or Federal laws
regarding mediation confidentiality.
(d) The parties agree that they will not
record, transcribe, save, or otherwise
capture any audio, video, files,
documents, chat texts, or any other data
that they would not have access to but
for the service being provided, unless
agreed to by all parties and with prior
written approval of FMCS, or as
otherwise required by law. They further
agree to notify the neutral immediately
if recordings, saves or other captures of
data occur, to ensure that no further
distribution or transfer occurs, and to
immediately and permanently delete
them.
(e) Non-parties may attend only with
the agreement of the parties and the
neutral unless otherwise required by
law and are bound by these terms of
service.
(f) If a party inadvertently gains access
to any confidential discussions
involving another party, the party with
inadvertent access shall immediately
disclose their presence and exit from the
confidential discussions. Any
confidential information inadvertently
disclosed may not be used by the party
with inadvertent access, even within the
confines of the alternative dispute
resolution session.
(g) The parties agree not to subpoena
or compel the neutral to testify or
produce any documents provided by a
party in any administrative or judicial
proceeding. The neutral will not
voluntarily testify or produce
documents on behalf of a party in any
administrative or judicial proceeding
unless otherwise required by law.
Authority: 29 U.S.C. 172; 29 U.S.C. 173 et
seq.; and 5 U.S.C. 574.
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§ 1406.1
General terms of service.
When Federal Mediation and
Conciliation Service (FMCS) services
are chosen, the recipients of the services
have agreed to abide by FMCS’s general
terms of service as well as any other
terms of service provided by FMCS.
(a) The recipients of a service shall
hold FMCS and any FMCS neutrals
harmless of any claim arising from the
delivery of that FMCS service.
(b) FMCS will determine the date,
time, place, and manner (virtual, inperson, or hybrid) of services provided
in accordance with any applicable
statutes, regulations, and agreements.
(c) FMCS may convene the parties for
a threatened or actual work stoppage
whenever in its judgment such dispute
threatens to cause a substantial
interruption of commerce.
(d) Any person shadowing an FMCS
neutral agrees to be bound by the same
confidentiality standards as the FMCS
neutral and such confidentiality
standards will be honored by the
parties.
(e) FMCS recognizes the importance
of mediator confidentiality to further its
mission. Therefore, FMCS will not
produce any materials related to a
mediation other than the date, parties,
location, and mediator, unless required
by law. FMCS will not produce
materials related to a mediation,
materials exchanged in a mediation or
facilitation, information related to nonplenary sessions of a facilitation,
mediator or facilitator notes, and any
internal communications with the
mediator of facilitator, unless required
by law.
(f) Nothing in this section shall be
construed so as to negate or modify the
FMCS’s Confidential Commercial
Information (CCI) regulation (29 CFR
1401.26).
(g) FMCS will make a copy of these
terms available to all parties upon
request.
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§ 1406.3 Grievance mediation and Federal
sector inter-agency agreement mediation—
additional terms of service.
The following Terms of Service
additionally apply when the FMCS
service is a grievance mediation or
Federal sector inter-agency agreement
mediation.
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(a) The grievant or complainant is
entitled to be present at the mediation.
(b) The parties agree not to disclose to
any non-party oral or written
communications made during the
mediation process, including settlement
terms, proposals, offers, or other
statements, whether made privately to
the neutral or when all parties are
present.
(c) Evidence that is otherwise
admissible or discoverable will not be
rendered inadmissible or nondiscoverable as a result of its use in the
mediation proceedings.
(d) The neutral has no authority to
compel agreement or other resolution of
the dispute and will issue no written
recommendations or conclusions. At the
request of the parties, or on the
initiative of the neutral, the neutral may
provide an oral recommendation or
opinion to resolve the dispute. In that
circumstance, the parties may jointly
decide to implement that
recommendation or opinion but neither
party is obligated to do so.
(e) (For Federal sector inter-agency
agreement mediation, if applicable) Any
communications between the Agency or
Organizational Program/or Alternative
Dispute Resolution Coordinator and the
neutral(s) and/or the parties are
considered dispute resolution
communications with a neutral and will
be kept confidential.
§ 1406.4 Training and outreach
presentations.
The following Terms of Service
additionally apply when the FMCS
service is a training or outreach
presentation.
(a) The parties agree that they will not
record any FMCS training or outreach
presentation (whether delivered inperson or virtually) without the
knowledge and consent of the parties
and prior written approval of FMCS.
(b) [Reserved]
§ 1406.5 Virtual services—additional
Terms of Service.
The following Terms of Service
additionally apply when the FMCS
service is provided virtually.
(a) Parties may not provide meeting
access information to non-parties
without permission from the neutral
unless the session is open to the public.
(b) The neutral and all parties must be
provided notice of all attendees before
or at the time of attendance unless the
session is open to the public.
(c) Parties must ensure the integrity of
technology used in virtual meetings. If
an attendee is aware of any security
breach, that attendee will inform the
neutral immediately.
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Federal Register / Vol. 88, No. 169 / Friday, September 1, 2023 / Proposed Rules
Dated: August 29, 2023.
Anna Davis,
General Counsel.
Ms.
Rahwa Keleta, OSD.DPCLTD@mail.mil;
(703) 571–0070.
SUPPLEMENTARY INFORMATION:
FOR FURTHER INFORMATION CONTACT:
[FR Doc. 2023–18970 Filed 8–31–23; 8:45 am]
BILLING CODE 6732–01–P
DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 310
[Docket ID: DoD–2023–OS–0060]
RIN 0790–AL64
Privacy Act of 1974; Implementation
Office of the Secretary of
Defense (OSD), Department of Defense
(DoD).
ACTION: Proposed rule.
AGENCY:
The Department of Defense
(Department or DoD) is giving
concurrent notice of a new Departmentwide system of records pursuant to the
Privacy Act of 1974 for the DoD–0019,
‘‘Information Technology Access and
Audit Records,’’ system of records and
this proposed rulemaking. In this
proposed rulemaking, the Department
proposes to exempt portions of this
system of records from certain
provisions of the Privacy Act of 1974, as
amended, because of national security
requirements and to avoid interference
during the conduct of criminal, civil, or
administrative actions or investigations.
DATES: Send comments on or before
October 31, 2023.
SUMMARY:
You may submit comments,
identified by docket number, Regulation
Identifier Number (RIN), and title, by
any of the following methods.
* Federal Rulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
* Mail: Department of Defense, Office
of the Assistant to the Secretary of
Defense for Privacy, Civil Liberties, and
Transparency, Regulatory Directorate,
4800 Mark Center Drive, Attn: Mailbox
24, Suite 08D09, Alexandria, VA 22350–
1700.
Instructions: All submissions received
must include the agency name and
docket number or RIN for this Federal
Register document. The general policy
for comments and other submissions
from members of the public is to make
these submissions available for public
viewing on the internet at https://
www.regulations.gov as they are
received without change, including any
personal identifiers or contact
information.
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ADDRESSES:
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I. Background
In accordance with the Privacy Act of
1974, the DoD is establishing a new
Department-wide system of records
titled ‘‘Information Technology Access
and Audit Records,’’ DoD–0019. The
purpose of this system of records is to
support information systems being
established within the DoD using the
same categories of data for the same
purposes. This system of records covers
DoD’s maintenance of records related to
requests for user access, attempts to
access, granting of access, records of
user actions for DoD information
technology (IT) systems, and user
agreements. This includes details of
programs, databases, functions, and
sites accessed and/or used, and the
information products created, received,
or altered during the use of IT systems.
The system consists of both electronic
and paper records and will be used by
DoD components and offices to
maintain records about individuals who
have user agreements, user access to and
activity on networks, computer systems,
applications, databases, or other digital
technologies.
II. Privacy Act Exemption
The Privacy Act permits Federal
agencies to exempt eligible records in a
system of records from certain
provisions of the Act, including that
provide individuals with a right to
request access to and amendment of
their own records and accountings of
disclosures of such records. If an agency
intends to exempt a particular system of
records, it must first go through the
rulemaking process pursuant to 5 U.S.C.
553(b)(1)–(3), (c), and (e). This proposed
rule explains why an exemption is being
claimed for this system of records and
invites public comment, which DoD
will consider before the issuance of a
final rule implementing the exemption.
The DoD proposes to modify 32 CFR
part 310 to add a new Privacy Act
exemption rule for DoD–0019,
‘‘Information Technology Access and
Audit Records.’’ The DoD proposes to
exempt portions of this system of
records from certain provisions of the
Privacy Act because information in this
system of records may fall within the
scope of the following Privacy Act
exemptions: (k)(1) and (k)(2).
The DoD proposes to exempt this
system of records because some of these
records may contain classified national
security information and providing
notice, access, amendment, and
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60411
disclosure of accounting of those
records to an individual, as well as
certain record-keeping requirements,
may cause damage to national security.
The Privacy Act, pursuant to 5 U.S.C.
552a(k)(1), authorizes agencies to claim
an exemption for systems of records that
contain information properly classified
pursuant to executive order. DoD is
proposing to claim an exemption from
several provisions of the Privacy Act,
including various access, amendment,
disclosure of accounting, and certain
record-keeping and notice requirements,
to prevent disclosure of any information
properly classified pursuant to
executive order, as implemented by DoD
Instruction 5200.01 and DoD Manual
5200.01, Volumes 1 and 3.
The DoD is also proposing this
exemption rule because this system of
records may contain investigatory
material compiled for law enforcement
purposes within the scope of 5 U.S.C.
552a(k)(2). This exemption allows DoD
entities to claim an exemption for
systems of records that contain
investigatory materials compiled for law
enforcement purposes, other than
material within the scope of 5 U.S.C.
552a(j)(2), which describes certain
material related to the enforcement of
criminal laws maintained by principalfunction criminal law enforcement
agencies. The Department therefore is
proposing to claim an exemption from
several provisions of the Privacy Act,
including various access, amendment,
disclosure of accounting, and certain
record-keeping and notice requirements,
to prevent, among other harms, the
identification of actual or potential
subjects of investigation and/or sources
of investigative information and to
avoid frustrating the underlying law
enforcement purpose for which the
records were collected.
Records in this system of records are
only exempt from the Privacy Act to the
extent the purposes underlying the
exemption pertain to the record. A
notice of a new system of records for
DoD–0019, ‘‘Information Technology
Access and Audit Records,’’ is also
published in this issue of the Federal
Register.
Regulatory Analysis
Executive Order 12866, ‘‘Regulatory
Planning and Review’’ and Executive
Order 13563, ‘‘Improving Regulation
and Regulatory Review’’
Executive Orders 12866 and 13563
direct agencies to assess all costs and
benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
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]]>Agencies
[Federal Register Volume 88, Number 169 (Friday, September 1, 2023)]
[Proposed Rules]
[Pages 60409-60411]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-18970]
=======================================================================
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FEDERAL MEDIATION AND CONCILIATION SERVICE
29 CFR Part 1406
RIN 3076-AA26
FMCS Terms of Service
AGENCY: Federal Mediation and Conciliation Service.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Federal Mediation and Conciliation Service (FMCS) is
issuing this proposed rule for FMCS clients. This rulemaking sets forth
terms for FMCS's provision of services. This rulemaking further
expounds upon confidentiality rules associated with FMCS's services.
DATES: Comments must be submitted on or before October 31, 2023.
ADDRESSES: You may submit comments, in writing, to FMCS on this
proposed rule, identified by RIN 3076-AA26, by any of the following
methods:
Email: [email protected]. Include the reference ``Proposed
Rule FMCS Terms of Service, RIN 3076-AA26'' in the subject line of the
message.
Mail: FMCS, One Independence Square, 250 E Street SW,
Washington, DC 20427, Attention: Alisa Zimmerman, Deputy General
Counsel.
FOR FURTHER INFORMATION CONTACT: Alisa Zimmerman, Deputy General
Counsel, Office of General Counsel, Federal Mediation and Conciliation
Service, 250 E St SW, Washington, DC 20427; Office/Fax/Mobile 202-606-
5488; [email protected].
SUPPLEMENTARY INFORMATION:
I. Background
The Federal Mediation and Conciliation Service (FMCS) works to
build better, more effective workplace relationships and mitigate the
damage from inevitable conflict through preventive dialogue, honest
communication, and responsive strategies. Through our mission, FMCS
provides professional services to a wide range of Federal, state, and
local government agencies to resolve disputes, design conflict
management systems, build capacity for constructive conflict
management, and strengthen inter-agency and public-private cooperation.
In offering these services, FMCS recipients must agree to abide by the
proposed rule to preserve the integrity of the provided services.
II. Analysis of the Regulations
Section 1406.1 General Terms of Service
Paragraphs (a) through (g) set forth general terms of service
applicable to all FMCS services. More specifically:
Paragraph (a) explains that when FMCS services are chosen,
recipients of the services agree to abide by the terms as well as
any other terms of services provided by FMCS and will hold FMCS and
any FMCS neutral harmless.
Paragraph (b) notes FMCS will determine the date, time, and
manner of services in accordance with applicable statutes and
regulations.
Paragraph (d) explains that any person shadowing an FMCS neutral
agrees to be bound by the same confidentiality standards as the FMCS
neutral, which will be honored by the parties.
Paragraph (e) notes that FMCS recognizes the importance of
mediator confidentiality, and as such FMCS will not produce
materials related to a mediation, with some exceptions.
Paragraph (f) states that's the section does not negate or
modify FMCS's Confidential Commercial Information (CCI) regulation.
Paragraph (g) discusses that FMCS will make the terms publicly
available and make a copy available to all parties upon request.
Section 1406.2 Terms of Service for Mediation, Facilitation, and Other
Alternative Dispute Resolution Services
Paragraphs (a) through (g) sets forth additional terms of
service specific to mediation, facilitation, & other alternative
dispute resolution services provided by FMCS.
Section 1406.3 Virtual Services--Additional Terms of Service
Paragraphs (a) through (c) set forth additional terms of service
specific to virtual services provided by FMCS.
Section 1406.4 Grievance Mediation and Federal Sector Inter-Agency
Agreement Mediation--Additional Terms of Service
Paragraphs (a) through (e) set forth additional terms of service
specific to grievance mediations and Federal sector inter-agency
agreement mediations provided by FMCS.
Section 1406.5 Training and Outreach
This section sets forth additional terms of service specific to
training and outreach presentations provided by FMCS.
III. Matters of Regulatory Procedure
Administrative Procedure Act
Under 5 U.S.C. 553(a)(2), rules relating to agency management or
personnel are exempt from the notice and comment rulemaking
requirements of the Administrative Procedure Act (APA). In addition,
under 5 U.S.C. 553(b)(3)(A), notice and comment rulemaking requirements
do not apply to rules concerning matters of agency organization,
procedure, or practice. Given that the rule concerns matters of agency
management or personnel, and organization, procedure, or practice, the
notice and comment requirements of the APA do not apply here. Nor is a
public hearing required under 45 U.S.C. 160a. In issuing a proposed
rule on this matter, FMCS, will consider all written comments on this
proposed rule that are submitted by the October 31, 2023 due date.
Executive Order 12866
This proposed rule is not a significant rule for purposes of
Executive Order 12866 and has not been reviewed by the Office of
Management and Budget.
Regulatory Flexibility Act
FMCS has determined under the Regulatory Flexibility Act, 5 U.S.C.
chapter 6, that this proposed rule would not have a significant
economic impact on a substantial number of small entities because it
would primarily affect FMCS employees.
Paperwork Reduction Act
The Paperwork Reduction Act, 44 U.S.C. chapter 35, does not apply
to this proposed rule because it does not contain any information
collection requirements that would require the approval of the Office
of Management and Budget.
Congressional Review Act
FMCS has determined that this proposed rule does not meet the
definition of a rule, as defined by the Congressional Review Act, 5
U.S.C. chapter 8, and thus does not require review by Congress.
List of Subjects in 29 CFR Part 1406
Administrative practice and procedure, Labor management relations.
For the reasons discussed in the preamble, FMCS proposes to amend
29 CFR chapter XII by adding part 1406 to read as follows:
[[Page 60410]]
PART 1406--FMCS TERMS OF SERVICE
Sec.
1406.1 General terms of service.
1406.2 Terms of service for mediation, facilitation, and other
alternative dispute resolution services.
1406.3 Virtual services--additional terms of service.
1406.4 Grievance mediation and Federal sector inter-agency agreement
mediation--additional terms of service.
1406.5 Training and outreach presentations.
Authority: 29 U.S.C. 172; 29 U.S.C. 173 et seq.; and 5 U.S.C.
574.
Sec. 1406.1 General terms of service.
When Federal Mediation and Conciliation Service (FMCS) services are
chosen, the recipients of the services have agreed to abide by FMCS's
general terms of service as well as any other terms of service provided
by FMCS.
(a) The recipients of a service shall hold FMCS and any FMCS
neutrals harmless of any claim arising from the delivery of that FMCS
service.
(b) FMCS will determine the date, time, place, and manner (virtual,
in-person, or hybrid) of services provided in accordance with any
applicable statutes, regulations, and agreements.
(c) FMCS may convene the parties for a threatened or actual work
stoppage whenever in its judgment such dispute threatens to cause a
substantial interruption of commerce.
(d) Any person shadowing an FMCS neutral agrees to be bound by the
same confidentiality standards as the FMCS neutral and such
confidentiality standards will be honored by the parties.
(e) FMCS recognizes the importance of mediator confidentiality to
further its mission. Therefore, FMCS will not produce any materials
related to a mediation other than the date, parties, location, and
mediator, unless required by law. FMCS will not produce materials
related to a mediation, materials exchanged in a mediation or
facilitation, information related to non-plenary sessions of a
facilitation, mediator or facilitator notes, and any internal
communications with the mediator of facilitator, unless required by
law.
(f) Nothing in this section shall be construed so as to negate or
modify the FMCS's Confidential Commercial Information (CCI) regulation
(29 CFR 1401.26).
(g) FMCS will make a copy of these terms available to all parties
upon request.
Sec. 1406.2 Mediation, facilitation, and other alternative dispute
resolution services--additional terms of service.
The following Terms of Service additionally apply when the FMCS
service is a mediation, facilitation, training, and other alternative
dispute resolution service.
(a) These services are voluntary processes that may be terminated
at any time unless otherwise provided by statute or by agreement.
(b) The neutral has no authority to compel resolution.
(c) These services are confidential to the extent allowed by law.
The obligations imposed by these terms and conditions are in addition
to and do not supersede any obligations imposed by applicable state or
Federal laws regarding mediation confidentiality.
(d) The parties agree that they will not record, transcribe, save,
or otherwise capture any audio, video, files, documents, chat texts, or
any other data that they would not have access to but for the service
being provided, unless agreed to by all parties and with prior written
approval of FMCS, or as otherwise required by law. They further agree
to notify the neutral immediately if recordings, saves or other
captures of data occur, to ensure that no further distribution or
transfer occurs, and to immediately and permanently delete them.
(e) Non-parties may attend only with the agreement of the parties
and the neutral unless otherwise required by law and are bound by these
terms of service.
(f) If a party inadvertently gains access to any confidential
discussions involving another party, the party with inadvertent access
shall immediately disclose their presence and exit from the
confidential discussions. Any confidential information inadvertently
disclosed may not be used by the party with inadvertent access, even
within the confines of the alternative dispute resolution session.
(g) The parties agree not to subpoena or compel the neutral to
testify or produce any documents provided by a party in any
administrative or judicial proceeding. The neutral will not voluntarily
testify or produce documents on behalf of a party in any administrative
or judicial proceeding unless otherwise required by law.
Sec. 1406.3 Grievance mediation and Federal sector inter-agency
agreement mediation--additional terms of service.
The following Terms of Service additionally apply when the FMCS
service is a grievance mediation or Federal sector inter-agency
agreement mediation.
(a) The grievant or complainant is entitled to be present at the
mediation.
(b) The parties agree not to disclose to any non-party oral or
written communications made during the mediation process, including
settlement terms, proposals, offers, or other statements, whether made
privately to the neutral or when all parties are present.
(c) Evidence that is otherwise admissible or discoverable will not
be rendered inadmissible or non-discoverable as a result of its use in
the mediation proceedings.
(d) The neutral has no authority to compel agreement or other
resolution of the dispute and will issue no written recommendations or
conclusions. At the request of the parties, or on the initiative of the
neutral, the neutral may provide an oral recommendation or opinion to
resolve the dispute. In that circumstance, the parties may jointly
decide to implement that recommendation or opinion but neither party is
obligated to do so.
(e) (For Federal sector inter-agency agreement mediation, if
applicable) Any communications between the Agency or Organizational
Program/or Alternative Dispute Resolution Coordinator and the
neutral(s) and/or the parties are considered dispute resolution
communications with a neutral and will be kept confidential.
Sec. 1406.4 Training and outreach presentations.
The following Terms of Service additionally apply when the FMCS
service is a training or outreach presentation.
(a) The parties agree that they will not record any FMCS training
or outreach presentation (whether delivered in-person or virtually)
without the knowledge and consent of the parties and prior written
approval of FMCS.
(b) [Reserved]
Sec. 1406.5 Virtual services--additional Terms of Service.
The following Terms of Service additionally apply when the FMCS
service is provided virtually.
(a) Parties may not provide meeting access information to non-
parties without permission from the neutral unless the session is open
to the public.
(b) The neutral and all parties must be provided notice of all
attendees before or at the time of attendance unless the session is
open to the public.
(c) Parties must ensure the integrity of technology used in virtual
meetings. If an attendee is aware of any security breach, that attendee
will inform the neutral immediately.
[[Page 60411]]
Dated: August 29, 2023.
Anna Davis,
General Counsel.
[FR Doc. 2023-18970 Filed 8-31-23; 8:45 am]
BILLING CODE 6732-01-P
