76658 Federal Register / Vol. 88, No. 214 / Tuesday, November 7, 2023 / Rules and Regulations 

Office of General Counsel, Central 

Office. A list of addresses for all the 

Bureau institutions and offices can be 

found at www.bop.gov. 

■ 3. Revise paragraphs (a) through (d) 

and (f) of § 543.32 to read as follows: 

§ 543.32 Processing the claim. 

(a) Receipt of acknowledgment letters. 

If you have presented a claim signed by 

you or a duly authorized agent or legal 

representative that provides all the 

necessary information (such as time, 

date, and place where the incident 

occurred, and a specific sum of money 

you are requesting as damages), you will 

receive an acknowledgment letter 

indicating the presentment date and a 

claim number. If your submission is 

unsigned, or signed by a person without 

legal authority to present the claim on 

your behalf, or you fail to provide all 

necessary information, your submission 

will be rejected and returned to you for 

resubmission. The presentment date is 

the date your submission containing all 

required signatures and necessary 

information is first received by either 

the Department of Justice or an office of 

the Bureau of Prisons. You should refer 

to your claim number in all further 

correspondence with the agency. 

Additionally, you must inform the 

agency of any changes in your address. 

(b) Transfer of claims. If your claim is 

improperly submitted to the wrong 

office or agency, you will be notified by 

the responsible office that your claim 

was transferred to another regional 

office, the Central Office, or another 

agency. 

(c) Investigation. The regional office 

ordinarily refers the claim to the 

appropriate institution or office for 

investigation. You may also be required 

to provide additional information 

during the investigation. Your failure to 

respond within a reasonable time may 

result in the denial of the claim. 

(d) Administrative claim 

decisionmaker. The Regional Counsel or 

his or her designee reviews the 

investigation and the supporting 

evidence and renders a decision on all 

claims properly presented to the 

regional office and within regional 

settlement authority. The Regional 

Counsel has limited settlement 

authority (up to an amount established 

by the Director of the Bureau of 

Prisons). After considering the merits of 

the claim, the Regional Counsel may 

deny or propose a settlement of the 

claim. The Associate General Counsel, 

Litigation Branch, will investigate and 

propose settlement for all claims 

properly presented in the Central Office 

in accordance with delegated settlement 

authority. If the proposed settlement 

exceeds the Bureau of Prisons’ 

authority, the General Counsel will seek 

approval from the appropriate 

Department of Justice officers. 

* * * * * 

(f) Options if claim is denied or 

settlement offer is unsatisfactory. If your 

claim is denied or you are dissatisfied 

with a settlement offer, you may request 

in writing that the Bureau of Prisons 

reconsider your claim in the 

administrative stage. You should 

include additional evidence of injury or 

loss to support your request for 

reconsideration. If you are dissatisfied 

with the final agency action, you may 

file suit in an appropriate United States 

District Court, as no further 

administrative action is available. 

(g) Acceptance of settlement. If you 

accept a settlement, you give up your 

right to bring a lawsuit against the 

United States or against any employee 

of the government whose action or lack 

of action gave rise to your claim. 

(h) Response timeline. Generally, you 

will receive a decision regarding your 

claim within six months of when you 

properly present the claim. If you have 

not received a letter either proposing a 

settlement or denying your claim within 

six months after the date your claim was 

presented, you may assume your claim 

is denied. You may then proceed to file 

a lawsuit in the appropriate United 

States District Court. 

* * * * * 

[FR Doc. 2023–24384 Filed 11–6–23; 8:45 am] 

BILLING CODE 4410–05–P 

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. 

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; 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 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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Federal Register / Vol. 88, No. 214 / Tuesday, November 7, 2023 / Rules and Regulations 76659 

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. 

§ 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, 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 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 


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76660 Federal Register / Vol. 88, No. 214 / Tuesday, November 7, 2023 / Rules and Regulations 

1SECURE 2.0 Act of 2022, Division T of the 

Consolidated Appropriations Act, 2023, Public Law 

117–328 (Dec. 29, 2022). 

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 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. 

§ 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 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. 

§ 1406.5 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 inperson 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 

PENSION BENEFIT GUARANTY 

CORPORATION 

29 CFR Parts 4000, 4003, 4006, 4010, 

4022, 4041A, 4043, 4211, and 4262 

RIN 1212–AB56 

Technical Amendments: Special 

Financial Assistance Withdrawal 

Liability Condition; SECURE 2.0 Act; 

and Other Updates 

AGENCY: Pension Benefit Guaranty 

Corporation. 

ACTION: Final rule. 

SUMMARY: The Pension Benefit Guaranty 

Corporation (PBGC) is making 

miscellaneous technical updates, 

clarifications, and corrections to PBGC’s 

regulations, including to clarify a 

special financial assistance withdrawal 

liability condition and to update the 

reference to the dollar limit for lumpsum distributions in the closeout of 

sufficient multiemployer plans to reflect 

changes implemented under the 

SECURE 2.0 Act of 2022. 

DATES: This rule is effective on 

December 7, 2023. 

FOR FURTHER INFORMATION CONTACT: 

Hilary Duke (duke.hilary@pbgc.gov; 

202–229–3839), Assistant General 

Counsel for Regulatory Affairs, or 

Melissa Rifkin (rifkin.melissa@pbgc.gov; 

202–229–6563), Attorney, Regulatory 

Affairs Division; Office of the General 

Counsel, Pension Benefit Guaranty 

Corporation, 445 12th Street SW, 

Washington, DC 20024–2101. If you are 

deaf or hard of hearing or have a speech 

disability, please dial 7–1–1 to access 

telecommunications relay services. 

SUPPLEMENTARY INFORMATION: 

Executive Summary 

Purpose and Authority 

This final rule makes technical 

corrections, updates, and clarifications 

to several Pension Benefit Guaranty 

Corporation (PBGC) regulations. 

PBGC’s legal authority for this 

rulemaking comes from section 

4002(b)(3) of the Employee Retirement 

Income Security Act of 1974 (ERISA), 

which authorizes PBGC to issue 

regulations to carry out the purposes of 

title IV of ERISA, and section 4262 of 

ERISA (Special Financial Assistance by 

the Corporation), which permits PBGC, 

in consultation with the Secretary of the 

Treasury, to impose reasonable 

conditions by regulation or other 

guidance on an eligible multiemployer 

plan that receives special financial 

assistance (SFA). It also comes from 

section 4003 of ERISA (Operation of 

Corporation); section 4006 of ERISA 

(Premium Rates); section 4010 of ERISA 

(Authority to Require Certain 

Information); section 4022 of ERISA 

(Single-Employer Plan Benefits 

Guaranteed); section 4041A of ERISA 

(Termination of Multiemployer Plans); 

section 4043 of ERISA (Reportable 

Events); and section 4211 of ERISA 

(Methods for Computing Withdrawal 

Liability). 

Major Provisions 

The major provisions of this 

regulatory action amend PBGC’s 

regulations on: (1) Special Financial 

Assistance by PBGC (29 CFR part 4262) 

to clarify the calculation methodology 

for the condition requiring a phased 

recognition of SFA in a plan’s 

determination of withdrawal liability for 

plans that receive SFA; and (2) 

Termination of Multiemployer Plans (29 

CFR part 4041A) to update the reference 

to the dollar limit for lump-sum 

distributions in the closeout of 

sufficient multiemployer plans 

(reflecting updated dollar limits for 

pension plans under section 304 of the 

SECURE 2.0 Act of 2022 (SECURE 

2.0)).1 In addition, this regulatory action 

makes other clarifications, corrections, 

and updates. 


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