[Federal Register Volume 63, Number 40 (Monday, March 2, 1998)]
[Proposed Rules]
[Pages 10166-10168]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-5248]
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OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION
29 CFR Part 2200
Rules of Procedure
AGENCY: Occupational Safety and Health Review Commission.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Occupational Safety and Health Review Commission proposes
to supplement its existing rule establishing a Settlement Judge
procedure, with a new procedure to be known as the Settlement Part
which is intended to facilitate the settlement process in large and
complex cases. This procedure would be instituted as a pilot program
for a one-year trial period.
DATES: Comments must be received by April 16, 1998.
ADDRESSES: All comments concerning these proposed rules should be
addressed to Earl R. Ohman, Jr., General Counsel, One Lafayette Center,
1120 20th St., NW., 9th Floor, Washington, DC 20036-3419.
FOR FURTHER INFORMATION CONTACT:
Earl R. Ohman, Jr., General Counsel, 202-606-5410.
SUPPLEMENTARY INFORMATION: The Occupational Safety and Health Review
Commission proposes to supplement its existing rule establishing a
Settlement Judge procedure, 29 CFR Sec. 2200.101, with a new procedure
to be known as the Settlement Part which is intended to facilitate the
settlement process in large and complex cases. This procedure would be
instituted as a pilot program for a one year trial period. However, as
the Commission currently is without a quorum, it will wait for a second
Commission member before acting to put the pilot program into effect.
Before commencing the pilot program, the Commission also intends to
give several judges specialized training in settlement negotiation
techniques and procedures. After the trial period, the Commission would
evaluate the results and determine whether it should continue the
Settlement Part procedure and, if so, what modifications should be
made. The Settlement Part process is intended to provide a more
structured and formal setting in which the possibility of settlement
would be enhanced by requiring the parties at a preliminary stage in
the proceedings to meet and confer with a judge who has full authority
both to guide and assist the parties to a complete or partial
resolution of the case and to assure the parties the confidentiality
which is a necessary component of any successful settlement procedure.
Unlike the existing Settlement Judge procedure, which requires the
consent of the parties, proceedings under the Settlement Part will be
compulsory in certain cases. For purposes of the pilot program, the
Settlement Part procedure will be mandated for cases where the amount
of the proposed penalties is at least $200,000 and in other cases where
the Chief Administrative Law Judge deems the Settlement Part procedure
to be appropriate. A settlement process which may be prescribed for the
parties without a requirement for their prior consent has ample
precedent. For example, the Courts of Appeals for the Third Circuit and
the Eleventh Circuit have, respectively, an ``Appellate Mediation
Program'' and an ``Appellate Conference Program'' under which the
selection of cases for settlement negotiations is controlled by the
court. An independent unit of the court in the Ninth Circuit staffed by
mediators conducts settlement conferences as directed by the court (9th
Cir. R. 33-1). In the Fourth (4th Cir. R. 33) Sixth (6th Cir. R. 18),
and Tenth (10th Cir. R. 33.1) Circuits, the court determines whether a
pre-argument settlement conference should be conducted. In the Eighth
Circuit, such conferences are mandatory in most civil appeals (8th Cir.
R. 33A). The Federal Energy Regulatory Commission or its Chief
Administrative Law Judge may mandatorily assign a settlement judge even
absent the consent of or a motion by any of the parties. 18 CFR
Sec. 385.603. The provisions of the Settlement Part are set forth here
as a separate and distinct rule for purposes of clarity in the notice
and comment process. The Commission will consider combining these
provisions with those of the existing settlement rule so as to create a
single rule governing settlement practice.
Development of the Proposed Rules
The Commission's experience has shown that, generally speaking,
parties have not been able to agree to use the existing consensual
Settlement Judge procedure except in relatively simple cases which do
not raise novel or complex issues of law or fact. While the Commission
appreciates that the parties in such cases may have found the
Settlement Judge system to be helpful in resolving their dispute, the
Commission is concerned about the increasing volume of cases which for
complexity or other reasons demand a great deal of trial time and
impose an appreciable burden on Commission resources. The proposed
Settlement Part is designed to make available to the parties a
mechanism for addressing the potential for settlement, either in full
or in part, of issues arising under these cases.
Since this procedure is to be a pilot program, the number of cases
processed under the Settlement Part must be controlled so as to provide
a sample large enough for an accurate and thorough evaluation of the
program but not so large as to overtax the number of judges that can be
made available to serve in the Settlement Part. Based on the
Commission's analysis of its existing and anticipated docket, the
Commission
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has concluded that mandating the Settlement Part procedure in all cases
where the potential penalty liability is $200,000 or greater should be
adequate to provide most of the cases needed for a successful test of
the Settlement Part during this trial period.
Structure of the Settlement Part Procedure
With a few differences, proceedings under the Settlement Part
parallel those prescribed by section 2200.101 for proceedings before
settlement judges. During the settlement period, which is 60 days with
one enlargement of 30 days permitted, parties and their representatives
may meet privately with the Judge, and they or their agents with
authority to settle on their behalf will be required to attend a
settlement conference. If a full settlement is not achieved within the
60-day period or 30-day enlargement, the Settlement Part Judge will so
inform the Chief Administrative Law Judge and will include in the case
file any partial settlement that the parties may have been able to
achieve. At this point, the Chief Administrative Law Judge will assign
the case to a different Administrative Law Judge for further
proceedings on all remaining issues. Unions, other representatives of
employees, or employees who have elected party status are considered to
be parties for purposes of proceedings under the Settlement Part.
Authority of the Settlement Part Judge
The Settlement Part Judge shall have full authority over the
processing of the case including discovery and consideration of any
motions which may be filed. All settlement negotiations and meetings
with the parties, both jointly and individually, will be at the
discretion of the Settlement Part Judge. The Settlement Part Judge will
determine the best manner in which to facilitate settlement of the
case, except for the settlement conference itself, which is mandatory.
Confidentiality
The Commission is aware that in order for settlement discussions to
be fruitful, the parties must be assured of confidentiality with regard
to matters that may be disclosed during settlement negotiations. The
existing Settlement Judge rule, section 2200.101(c)(2), incorporates
the requirement of Rule 408 of the Federal Rules of Evidence that
evidence of conduct or statements made in settlement negotiations is
not admissible and also prohibits the use in litigation of documents
disclosed in the settlement process unless obtained by appropriate
discovery or subpoena. It also precludes the Settlement Judge from
discussing the merits of the case and being called as a witness.
Paragraph (d)(3) of the proposed Settlement Judge Part contains an even
stronger and more comprehensive confidentiality provision. Not only are
evidence of conduct or statements and documents revealed during
settlement negotiations protected from subsequent disclosure except
with the consent of the parties, but the confidentiality provision also
extends to any information which the parties wish to protect including
information revealed during private meetings with the Settlement Part
Judge as well as any material prepared by the Judge or in his
possession and communications between the Settlement Part Judge and the
Chief Administrative Law Judge. Furthermore, in addition to prohibiting
the Settlement Part Judge from discussing the merits of the case
outside of the settlement negotiations and appearing as a witness, the
proposed Settlement Part rule would also protect from disclosure the
final report of the Settlement Part Judge to the Chief Administrative
Law Judge. The only exception to nondisclosure absent the consent of
the parties is any settlement agreement, full or partial, which the
parties achieve, which will be embodied in an appropriate order entered
upon the record by the Settlement Part Judge.
Record of Proceedings
Consistent with the broad confidentiality and nondisclosure
provisions, the Settlement Part rule further provides that no material
protected from disclosure will be entered in the official case file
maintained by the Executive Secretary and therefore will not be
available for public inspection. The only exception to this requirement
is that any order approving a full or partial settlement agreement will
be considered part of the official case record.
Non-reviewability
Paragraph (g) of the proposed rule generally provides that
interlocutory review will not be available in proceedings under this
section.
List of Subject in 29 CFR Part 2200
Administrative practice and procedure, Hearing and appeal
procedures.
For the reasons set forth in the preamble, the Occupational Safety
and Health Review Commission proposes to amend Title 29, Chapter XX,
Part 2200, Subpart M of the Code of Federal Regulations as follows:
PART 2200--RULES OF PROCEDURE
1. The authority citation continues to read as follows:
Authority: 29 U.S.C. 661(g)
2. Subpart G--Miscellaneous Provisions is amended by adding section
2200.109 to read as follows:
Sec. 2200.109 Settlement Part.
(a) Applicability. This section applies only to notices of contest
by employers in which the aggregate amount of the penalties sought by
the Secretary is $200,000 or greater and notices of contest by
employers which are determined to be suitable for assignment under this
section for reasons deemed appropriate by the Chief Administrative Law
Judge.
(b) Proceedings under this Part. (1) Notwithstanding any other
provision of these rules, following the filing of the pleadings the
Chief Administrative Law Judge shall assign to the Settlement Part any
case which satisfies the criteria set forth in paragraph (a) of this
section. The Chief Administrative Law Judge shall either act as or
appoint a Settlement Part Judge, who shall be a Judge other than the
one assigned to hear and decide the case, to conduct proceedings under
the Settlement Part as set forth in this section.
(2) The proceedings under the Settlement Part shall be for an
initial period not to exceed 60 days but may be extended in accordance
with paragraph (f)(1) of this section.
(c) Powers and duties of Settlement Part Judges. (1) The Judge
shall confer with the parties on subjects and issues of whole or
partial settlement of the case.
(2) The Judge shall seek resolution of as many of the issues in the
case as is feasible.
(3) The Judge may require the parties to provide statements of the
issues in controversy and the factual predicate for each party's
position on each issue or may enter other orders as appropriate to
facilitate the proceedings.
(4) The Judge may allow or suspend discovery during the time of
assignment.
(5) The Judge may suggest privately to each attorney or other
representative of a party what concessions his or her client should
consider, and assess privately with each attorney or other
representative the reasonableness of the party's case or settlement
position.
(d) Settlement conference--(1) General. The Settlement Part Judge
shall convene and preside over conferences between the parties. All
settlement conferences shall be held in person. The
[[Page 10168]]
Judge shall designate a place and time of conference.
(2) Participation in conference. The Settlement Part Judge shall
require that any attorney or other representative who is expected to
try the case for each party be present. The Settlement Part Judge shall
also require that the party's representative be accompanied by an
official of the party having full settlement authority on behalf of the
party. The parties and their representatives or attorneys are expected
to be completely candid with the Settlement Judge so that he may
properly guide settlement discussions. The failure to be present at a
settlement conference or otherwise to comply with the orders of the
Settlement Part Judge or the refusal to cooperate fully within the
spirit of this rule may result in the imposition of sanctions under
Sec. 2200.41.
(3) Confidentiality. All statements made, and all information
presented, during the course of proceedings under this section shall be
regarded as confidential and shall not be divulged outside of these
proceedings except with the consent of the parties. The Settlement Part
Judge shall if necessary issue appropriate orders in accordance with
Sec. 2200.11 to protect confidentiality. The Settlement Part Judge
shall not divulge any statements or information presented during
private negotiations with a party or his representative except with the
consent of that party. No evidence of statements or conduct in
proceedings under this section within the scope of Federal Rule of
Evidence 408, no notes or other material prepared by or maintained by
the Settlement Part Judge, and no communications between the Settlement
Part Judge and the Chief Administrative Law Judge including the report
of the Settlement Part Judge under paragraph (e) of this section, will
be admissible in any subsequent hearing except by stipulation of the
parties. Documents disclosed in the settlement process may not be used
in litigation unless obtained through appropriate discovery or
subpoena. The Settlement Part Judge shall not discuss the merits of the
case with any other person, nor appear as a witness in any hearing of
the case.
(e) Record of proceedings. No material of any form required to be
held confidential under paragraph (d)(3) of this section shall be
considered part of the official case record required to be maintained
under 29 U.S.C. Sec. 661(g), nor shall any such material be open to
public inspection as required by section 661(g), unless the parties
otherwise stipulate. With the exception of an order approving the terms
of any partial settlement agreed to between the parties as set forth in
paragraph (f)(2) of this section, the Settlement Part Judge shall not
file or cause to be filed in the official case record any material in
his possession relating to these proceedings, including but not limited
to communications with the Chief Administrative Law Judge and his
report under paragraph (f) of this section, unless the parties
otherwise stipulate.
(f) Report of Settlement Part Judge. (1) The Settlement Part Judge
may request from the Chief Administrative Law Judge one enlargement of
the time of the settlement period not exceeding 30 days if the
Settlement Part Judge finds that the additional time may be helpful in
achieving a settlement of all or part of the issues in the case. This
request, and any action of the Chief Administrative Law Judge in
response thereto, may be written or oral.
(2) The Settlement Part Judge, following the expiration of the
settlement period or at such earlier date that he determines further
negotiations would be fruitless, shall promptly notify the Chief
Administrative Law Judge in writing of the status of the case. If the
Settlement Judge has not approved a full settlement pursuant to
Sec. 2200.100, such report shall include copies of any written
stipulations and orders embodying the terms of such partial settlement
as has been achieved during the assignment.
(3) At the termination of the settlement period without a full
settlement, the Chief Administrative Law Judge shall promptly assign
the case to an Administrative Law Judge other than the Settlement Part
Judge or Chief Administrative Law Judge for appropriate action on the
remaining issues.
(g) Non-reviewability. Notwithstanding the provisions of
Sec. 2200.73 regarding interlocutory review, any decision concerning
the assignment of a Settlement Part Judge or a particular Judge, any
decision to request or to grant an enlargement of time under paragraph
(e)(1) of this section, and any decision by the Settlement Part Judge
to terminate proceedings under this section is not subject to review
by, appeal to, or rehearing by any subsequent presiding officer, the
Chief Administrative Law Judge, or the Commission.
Dated: February 24, 1998.
Stuart E. Weisberg,
Chairman.
[FR Doc. 98-5248 Filed 2-27-98; 8:45 am]
BILLING CODE 7600-01-M
