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###### Federal Mediation and Conciliation Service

          - 29 CFR Part 1404 
          - RIN 3076-AA12 

# AGENCY:

Federal Mediation and Conciliation Service. 

# ACTION:

Notice of proposed rulemaking. 

# SUMMARY:

The Federal Mediation and Conciliation Service (FMCS) proposes to amend its rules relating to arbitrators' inactive status, removal, appointment, referral and obligation to provide FMCS with information. The proposed rules also address the appointment of arbitrators where a party has failed to pay fees in previous cases. In addition, the proposed rules raise the annual listing fee for arbitrators on the FMCS Roster. The changes will promote more efficient and effective procedures involving arbitrator retention and arbitration services. The increased cost of listing arbitrator biographical data more accurately reflects FMCS' costs of maintaining and administering this information. 

# DATES:

Comments must be submitted to the office listed in the address section below on or before October 6, 2008. 

# ADDRESSES:

                        Submit written comments, identified by RIN number, by mail to Vella M. Traynham, Director, Office of Arbitration Services, FMCS, 2100 K Street, NW., Washington, DC 20427. Comments may be submitted by fax to (202) 606-3749. Comments may also be submitted electronically to                         *vtraynham@fmcs.gov*. All comments will be available for inspection in Room 704 at the Washington, DC address above from 8:30 a.m. to 4:30 p.m. Monday through Friday, excluding legal holidays.                     

# FOR FURTHER INFORMATION CONTACT:

Vella M. Traynham, Director, Office of Arbitration Services, FMCS, 2100 K Street, NW., Washington, DC 20427. Telephone: (202) 606-5111. 

# SUPPLEMENTARY INFORMATION:

                    Pursuant to 29 U.S.C. 171(b) and 29 CFR Part 1404, FMCS maintains a Roster of qualified labor arbitrators to hear disputes arising from collective bargaining agreements and to provide fact finding and interest arbitration. FMCS proposes to amend its rules pertaining to arbitration services by revising: the arbitrator complaint process; circumstances applicable to inactive arbitrator status; procedures for the request of arbitration panels; the obligation of arbitrators to provide FMCS with designated information; and                           ( print page 45661)                        methods for selecting an arbitrator panel. These changes are intended to make FMCS arbitration procedures more efficient and effective.                 

FMCS also proposes in the Appendix to Part 1404 to increase the listing fee for an arbitrator's first business address from $100 to $150. Increasingly, parties are requesting more individualized panels based on their requirements and arbitrator experience. The increased listing fee reflects the additional FMCS staff time and effort necessary to be responsive to these requests as well as that associated with updating arbitrator biographies. 

This rule is not a significant regulatory action for the purposes of Executive Order 12866 and has not been reviewed by the Office of Management and Budget. As required by the Regulatory Flexibility Act, I certify that this rule will not have a significant impact on a substantial number of small entities. This regulation does not have any federalism or tribal implications. 

# List of Subjects in 29 CFR Part 1404

      - Administrative practice and procedure
      - Labor management relations

For the reasons stated in the preamble, FMCS proposes to amend 29 CFR part 1404 as follows: 

# PART 1404—ARBITRATION SERVICES 

1. The authority citation for part 1404 continues to read as follows: 

Authority:29 U.S.C. 172 and 29 U.S.C. 173*et seq*.                         

2. In § 1404.5, revise paragraph (d) to read as follows: 

§ 1404.5 

* * * * *

                            (d)                             *Listing on roster, removal*. Listing on the Roster shall be by decision of the Director of FMCS based upon the recommendations of the Board or upon the Director's own initiative. The Board may recommend for removal, and the Director may remove, any person listed on the Roster for violation of this Part or of the Code of Professional Responsibility. FMCS will provide to the affected arbitrator written notice of removal from the Roster. Complaints about arbitrators should be in writing and sent to the Director of OAS. The complaint should cite the specific section of the Code or the FMCS rule the arbitrator has allegedly violated. The following criteria shall be a basis for the Board to recommend and/or the Director to initiate a member's removal from the Roster:                         

* * * * *

3. Revise § 1404.6 to read as follows: 

§ 1404.6 

(a) A member of the Roster who continues to meet the criteria for listing on the Roster may request that he or she be put in an inactive status on a temporary basis because of ill health, vacation, schedule or other reasons. 

(b) Arbitrators whose schedules do not permit cases to be heard within six months of assignment are encouraged to make themselves inactive temporarily until their caseload permits the earlier scheduling of cases. 

(c) An arbitrator can remain on inactive status without paying any annual listing fee for a period of two (2) years. If an arbitrator is on inactive status for longer than two (2) years, the arbitrator will be removed from the Roster unless he or she pays the annual listing fee. 

4. Amend § 1404.9 by revising paragraphs (b) and (d) to read as follows: 

§ 1404.9 

* * * * *

(b) The OAS will refer a panel of arbitrators to the parties upon request. The parties are encouraged to make joint requests. FMCS will abide by language in the parties' collective bargaining agreement specifying the conditions under which a panel of arbitrators will be referred. If the parties' collective bargaining agreement requires that the request for a panel of arbitrators be jointly submitted, FMCS will not proceed with an arbitrator selection if one party communicates to FMCS that it does not concur in the request. In the event, however, that the request is made by only one party without objection, the OAS will submit a panel of arbitrators. The issuance of a panel—pursuant to either a joint or a unilateral request—is nothing more than a response to a request. It does not signify the adoption of any position by the FMCS regarding the arbitrability of any dispute or a ruling that an agreement to arbitrate exists. 

* * * * *

(d) The OAS reserves the right to decline to submit a panel or to make an appointment of an arbitrator if the request submitted is overly burdensome or otherwise impracticable. The OAS, in such circumstances, may refer the parties to an FMCS mediator to help in the design of an alternative solution. The OAS may also decline to service any request from a party based on the party's non-payment of arbitrator fees or other behavior that constrains the spirit or operation of the arbitration process. 

* * * * *

5. Revise § 1404.12 to read as follows: 

§ 1404.12 

(a) After receiving a panel of names, the parties must notify the OAS of their selection of an arbitrator or of the decision not to proceed with arbitration. Upon notification of the selection of an arbitrator, the OAS will make a formal appointment of the arbitrator. The arbitrator, upon notification of appointment, shall communicate with the parties within 14 days to arrange for preliminary matters, such as the date and place of hearing. Should an arbitrator be notified directly by the parties that he or she has been selected, the arbitrator must promptly notify the OAS of the selection and of his or her willingness to serve. The arbitrator must provide the OAS with the FMCS case number and other pertinent information for the OAS to make an appointment. A pattern of failure by an arbitrator to notify FMCS of a selection in an FMCS case may result in suspension or removal from the Roster. If the parties settle a case prior to the hearing, the parties must inform the arbitrator as well as the OAS. Consistent failure to follow these procedures may lead to a denial of future OAS services. 

(b) If the parties request a list of names and biographical sketches rather than a panel, the parties may choose to contact and select an arbitrator directly from that list. In this situation, neither the parties nor the arbitrator is required to furnish any additional information to FMCS and no case number will be assigned. 

(c) Where the parties' collective bargaining agreement is silent on the manner of selecting arbitrators, FMCS will accept one of the following methods for selection from a panel: 

(1) A selection by mutual agreement; 

(2) A selection in which each party alternately strikes a name from the submitted panel until one remains; 

(3) A selection in which each party advises OAS of its order of preference by numbering each name on the panel and submitting the numbered list in writing to OAS. If the parties separately notify OAS of their preferred selections, OAS, upon receiving the preferred selection of the first party, will notify the other party that it has fourteen (14) days in which to submit its selections. Where both parties respond, the name that has the lowest combined number will be appointed. If the other party fails to respond, the first party's choice will be honored. 

                            (d) Where the parties' collective bargaining agreement permits each party to separately notify OAS of its preferred                                   ( print page 45662)                                selection, OAS will proceed with the selection process as follows. When the OAS receives the preferred selection from one party, it will notify the other party that it has fourteen (14) days in which to submit its selections. If that party fails to respond within the deadline, the first party's choice will be honored unless prohibited by the collective bargaining agreement. Where both parties respond, the name that has the lowest combined number will be appointed. If, within fourteen (14) days, a second panel is requested, and is permitted by the collective bargaining agreement, the requesting party must pay a fee for the second panel.                         

(e) The OAS will make a direct appointment of an arbitrator only upon joint request or as provided by paragraphs (c)(3) or (d) of this section. 

(f) A direct appointment in no way signifies a determination of arbitrability or a ruling that an agreement to arbitrate exists. The resolution of disputes over these issues rests solely with the parties. 

6. Amend the Appendix to 29 CFR Part 1404 by removing “$100” and adding “$150” in its place. 

Michael J. Bartlett, 

Deputy General Counsel.

[FR Doc. E8-17674 Filed 8-5-08; 8:45 am] 

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