Proposed Rule2023-18970
FMCS Terms of Service
Primary source
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Published
September 1, 2023
Issuing agencies
Federal Mediation and Conciliation Service
Abstract
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.
Full Text
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<title>Federal Register, Volume 88 Issue 169 (Friday, September 1, 2023)</title>
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[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 [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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.
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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:
<bullet> Email: <a href="/cdn-cgi/l/email-protection#740611131d0700110634121917075a131b02"><span class="__cf_email__" data-cfemail="f08295979983849582b0969d9383de979f86">[email protected]</span></a>. Include the reference ``Proposed
Rule FMCS Terms of Service, RIN 3076-AA26'' in the subject line of the
message.
<bullet> 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; <a href="/cdn-cgi/l/email-protection#7a1b001317171f08171b143a1c171909541d150c"><span class="__cf_email__" data-cfemail="d6b7acbfbbbbb3a4bbb7b896b0bbb5a5f8b1b9a0">[email protected]</span></a>.
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
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</html>Indexed from Federal Register on September 1, 2023.
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