[Federal Register Volume 77, Number 92 (Friday, May 11, 2012)]
[Proposed Rules]
[Pages 27669-27671]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-11080]



29 CFR Part 2200

Request for Public Comment on Settlement Part Program

AGENCY: Occupational Safety and Health Review Commission.

ACTION: Request for comment.


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 

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.


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 
    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 
    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

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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 
    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]