Federal Register / Vol. 88, No. 169 / Friday, September 1, 2023 / Proposed Rules 60409 

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] 

BILLING CODE 4910–13–P 

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: 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: 

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: 


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60410 Federal Register / Vol. 88, No. 169 / Friday, September 1, 2023 / Proposed Rules 

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. 

§ 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. 

§ 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. 

§ 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 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 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 

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 

AGENCY: Office of the Secretary of 

Defense (OSD), Department of Defense 

(DoD). 

ACTION: Proposed rule. 

SUMMARY: 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. 

ADDRESSES: You may submit comments, 

identified by docket number, Regulation 

Identifier Number (RIN), and title, by 

any of the following methods. 

* Federal Rulemaking Portal: http:// 

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. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Rahwa Keleta, OSD.DPCLTD@mail.mil; 

(703) 571–0070. 

SUPPLEMENTARY INFORMATION: 

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 

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 


lotter on DSK11XQN23PROD with PROPOSALS1