[Federal Register Volume 88, Number 214 (Tuesday, November 7, 2023)]
[Rules and Regulations]
[Pages 76658-76660]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-24526]


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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: Final rule.

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SUMMARY: The Federal Mediation and Conciliation Service (FMCS) is 
issuing this final 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: This final rule is effective December 7, 2023.

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 
final 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 this 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.

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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. However, in issuing a 
final rule on this matter, FMCS, previously issued a proposed rule with 
a notice and comment period and received no public comments.

Executive Order 12866

    This final 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 final 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 final 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 final 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.

IV. Public Comment Period

    The public comment period on the proposed rule opened on September 
1, 2023, the date of its publication in the Federal Register, and 
closed on October 31, 2023. During this period, FMCS did not receive 
any comments on our proposed rule.

List of Subjects in 29 CFR Part 1406

    Administrative practice and procedure, Labor management relations.

    For the reasons discussed in the preamble, FMCS amends 29 CFR 
chapter XII by adding part 1406 to read as follows:

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 
used, 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  Terms of service for mediation, facilitation, and other 
alternative dispute resolution services.

    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

[[Page 76660]]

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  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.


Sec.  1406.4  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.  1406.5  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]

    Dated: November 1, 2023.
Alisa Zimmerman,
Deputy General Counsel.
[FR Doc. 2023-24526 Filed 11-6-23; 8:45 am]
BILLING CODE 6732-01-P