[Federal Register Volume 77, Number 92 (Friday, May 11, 2012)]
[Proposed Rules]
[Pages 27669-27671]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-11080]
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OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
29 CFR Part 2200
Request for Public Comment on Settlement Part Program
AGENCY: Occupational Safety and Health Review Commission.
ACTION: Request for comment.
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SUMMARY: The Occupational Safety and Health Review Commission (Review
Commission) invites the public to comment on the Review Commission's
Settlement Part program.
DATES: Written comments must be submitted on or before June 25, 2012.
ADDRESSES: Submit all written comments, identified by the title
``Settlement Part Public Comment,'' by mail or hand delivery to John X.
Cerveny, Deputy Executive Secretary, Occupational Safety and Health
Review Commission, 1120 20th Street NW.,
[[Page 27670]]
Washington, DC 20036-3457, by fax to 202-606-5050, or by email to
fedreg@oshrc.gov.
FOR FURTHER INFORMATION CONTACT: John X. Cerveny, Deputy Executive
Secretary, Occupational Safety and Health Review Commission, 1120 20th
Street NW., Ninth Floor, Washington, DC 20036-3457; Telephone (202)
606-5706; email address: fedreg@oshrc.gov.
SUPPLEMENTARY INFORMATION:
I. Background
The Review Commission's Settlement Part program, codified at 29 CFR
2200.120, is designed to encourage settlements on contested citations
issued by the U.S. Department of Labor's Occupational Safety and Health
Administration (OSHA) and to reduce litigation costs. The Settlement
Part program is a form of alternative dispute resolution (ADR) under
which larger contested OSHA citations (those with an aggregate penalty
amount of $100,000 or greater) docketed at the Review Commission are
required to undergo a ``settlement procedure'' prior to the initiation
of conventional hearing procedures before a Review Commission
administrative law judge (ALJ). Under the mandatory Settlement Part,
such a case is first assigned to a ``Settlement Judge'' who will issue
a discovery order and supervise all discovery proceedings. Discovery
may be limited or suspended entirely in advance of any conference
before the settlement judge. After any discovery proceedings, the
Settlement Judge conducts settlement proceedings which include
conferences with the parties in order to identify or narrow factual and
legal issues and/or to settle the case(s). All statements made and all
information presented during the course of settlement proceedings are
regarded as confidential and are not to be divulged outside of the
settlement proceedings except with the consent of the parties. If
Settlement Part proceedings do not result in a settlement, the case is
assigned to a hearing judge (normally a judge other than the Settlement
Judge) who will handle the matter under conventional hearing
procedures.
The Review Commission's Mandatory Settlement Part was first
instituted as a pilot program by the Review Commission in 1999 and was
limited to contests of $200,000 or more. See 64 FR 8243 (Feb. 19,
1999). During the pilot period, the Settlement Part program was the
subject of a study performed by the Indiana Conflict Resolution
Institute at the School of Public and Environmental Affairs of Indiana
University (IU). That study, which was completed in August 2000,
attempted to examine several aspects of the pilot Settlement Part
program in order to make recommendations concerning continuation of the
program and any changes that might improve the Settlement Part process.
In general, IU concluded that Settlement Part resulted in a high
settlement rate and that both internal and external stakeholders were
satisfied with program requirements and the Review Commission's role.
II. Current Status of Settlement Part Program Review
The Review Commission's Settlement Part program has changed in
three important ways since it was initiated in 1999. First, it was made
a permanent program in 2000. See 65 FR 58350 (Sept. 29, 2000). Second,
it was expanded to encompass contests of $100,000 or more in 2005. See
70 FR 22785 (May 3, 2005). Last, the 2005 revisions also provided for
discovery to take place prior to initiation of settlement conferences.
However, the basic premise and foundation of Settlement Part has not
been reviewed on an in-depth basis since completion of the IU study in
2000.
After the passage of twelve years and the substantial experience
gained in Settlement Part use since that time, the Review Commission is
considering what additional steps, if any, may be taken to improve,
expand upon, or otherwise modify existing Settlement Part procedures.
The Review Commission has again contracted with IU and data is being
collected in order to examine the efficiency and effectiveness of its
Settlement Part program in achieving its goals. IU will review case
processing data obtained from the Review Commission's case tracking
system and has interviewed Review Commission personnel. IU plans on
distributing a survey to U.S. Department of Labor attorneys, employer
counsel or representatives, counsel for employee representatives and
employee representatives, and decision makers who personally
participated in settlement cases from February 15, 2011 through
February 14, 2012 that completed the settlement part process. IU plans
an additional survey of a control group of participants with similar
roles, in regular conventional proceedings between February 15, 2011
through June 30, 2012 where between $50,000 and $99,999 is at issue.
Both surveys include questions that address the settlement process and
do not include questions that ask about the substance or confidences of
any particular case. These two surveys are voluntary and individual
responses will be confidential. The Review Commission will obtain all
appropriate clearances, including Office of Management and Budget
survey collection approvals, before any surveys of participants
involved in Review Commission settlement and conventional proceedings
are distributed by IU.
III. Issues for Public Comment
In addition to the data collected from our case tracking systems
and participant surveys, we invite comments on the efficiency and
effectiveness of the Settlement Part program from the general public.
Comments on specific aspects of the program are most helpful. Below are
several questions that may be considered in commenting on the
Settlement Part program.
1. How should the Review Commission define ``success'' for its
Settlement Part program? Should issues of time and cost savings be
principal considerations, or should other issues (e.g., transparency,
avoidance of litigation, fairness to parties) infuse the process?
2. Has use of Settlement Part improved cooperation among the
parties in encouraging settlements? For example, is there more
cooperation among the parties regarding abatement? Does the Settlement
Part promote future compliance?
3. What is the appropriate role of employees and/or their
representatives in the Settlement Part process? How might the Review
Commission's Settlement Part rules address these roles?
4. One concern that has been voiced by some is that the
confidentiality provisions of Settlement Part are too broad and
comprehensive, and while perhaps appropriate for private arbitration
agreements, may be inappropriate in the current context. Conversely, a
concern expressed by some with substantial ADR experience, is that it
is not feasible to expect settlement of a matter if a substantial
degree of confidentially is not maintained. Do existing Settlement Part
rules adequately address the concerns of parties regarding
confidentiality? How might the Review Commission's Settlement Part
rules balance the competing interests of transparency and
confidentiality, as well as creating an environment that will either
foster or promote the resolution of contests?
5. Are the Review Commission's existing Settlement Part discovery
rules appropriate for use in an ADR setting?
6. Should mandatory Settlement Part rules be amended to provide an
option for the Chief ALJ to assign a case to
[[Page 27671]]
Settlement Part where the issues are particularly complex even if
specific dollar thresholds are not met? Should the Chief ALJ be able to
adjust the dollar thresholds for cases eligible for mandatory
settlement part processes based upon the Review Commission's case load?
7. Should cases be permitted to remain in mandatory settlement part
proceedings for more than 18 months without the approval of the Chief
ALJ?
8. Should the parties be allowed to elect to not participate in a
mandatory settlement part proceeding and, instead, request that the
case proceed directly to a hearing on the merits?
The Review Commission welcomes any other comments or suggestions
regarding Settlement Part.
Dated: May 1, 2012.
Debra Hall,
Acting Executive Director.
[FR Doc. 2012-11080 Filed 5-10-12; 8:45 am]
BILLING CODE 7600-01-P