Arbitration Services, 45660-45662 [E8-17674]
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Federal Register / Vol. 73, No. 152 / Wednesday, August 6, 2008 / Proposed Rules
and C each have a zero stock basis and X
does not have any indebtedness to A, B, or
C. For the 2008 taxable year, X excludes from
gross income $30,000 of COD income under
section 108(a)(1)(A). The COD income (had it
not been excluded) would have been
allocated $10,000 to A, $10,000 to B, and
$10,000 to C under section 1366(a). For the
2008 taxable year, X has $30,000 of losses
and deductions that X passes through prorata to A, B, and C in the amount of $10,000
each. The losses and deductions that pass
through to A, B, and C are disallowed under
section 1366(d)(1). In addition, B has $10,000
of section 1366(d) losses from prior years and
C has $20,000 from prior years. A’s ($10,000),
B’s ($20,000) and C’s ($30,000) combined
$60,000 of disallowed losses and deductions
for the taxable year of the discharge are
treated as a current year net operating loss
tax attribute for X under section 108(d)(7)(B)
(deemed NOL) for purposes of the section
108(b) reduction of tax attributes.
(ii) Allocation. Under section 108(b)(2)(A),
X’s $30,000 of excluded COD income reduces
this $60,000 deemed NOL to $30,000.
Therefore, X has a $30,000 excess net
operating loss (excess deemed NOL) to
allocate to the shareholders. Under paragraph
(d)(2)(ii)(C) of this section, none of the
$30,000 excess deemed NOL is allocated to
A because A’s section 1366(d) losses and
deductions immediately prior to the section
108(b)(2)(A) reduction ($10,000) do not
exceed A’s share of the excluded COD
income for 2008 ($10,000). Thus, A has no
shareholder’s excess amount. Each of B’s and
C’s respective section 1366(d) losses and
deductions immediately prior to the section
108(b)(2)(A) reduction exceed each of B’s and
C’s respective shares of the excluded COD
income for 2008. B’s excess amount is
$10,000 ($20,000 ¥ $10,000) and C’s excess
amount is $20,000 ($30,000 ¥ $10,000).
Therefore, the total of all shareholders’
excess amounts is $30,000. Under paragraph
(d)(2) of this section, X will allocate $10,000
of the $30,000 excess deemed NOL to B
($30,000 × $10,000/$30,000) and $20,000 of
the $30,000 excess deemed NOL to C
($30,000 × $20,000/$30,000). These amounts
are treated as losses and deductions
disallowed under section 1366(d)(1) for the
taxable year of the discharge. Accordingly, at
the beginning of 2009, A has no section
1366(d)(2) carryovers, B has $10,000 of
carryovers, and C has $20,000 of carryovers.
(iii) Character. Immediately prior to the
section 108(b)(2)(A) reduction, B’s $20,000 of
section 1366(d) losses and deductions
consisted of $8,000 of long-term capital
losses, $7,000 of section 1231 losses, and
$5,000 of ordinary losses. After the section
108(b)(2)(A) tax attribute reduction, X will
allocate $10,000 of the excess deemed NOL
to B. Under paragraph (d)(3) of this section,
the $5,000 of ordinary losses are treated as
reduced first, followed by $5,000 of section
1231 losses. Accordingly, the $10,000 of
losses allocated to B consist of the remaining
$2,000 of section 1231 losses and $8,000 of
long-term capital losses. As a result, at the
beginning of 2009, B’s $10,000 of section
1366(d)(2) carryovers include $2,000 of
section 1231 losses and $8,000 of long-term
capital losses.
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Example 6. (i) A and B each own 50
percent of the shares of stock in X, a calendar
year S corporation. On June 30, 2008, A sells
all of her shares of stock in X to C in a
transfer not described in section 1041(a). For
the 2008 taxable year, X excludes from gross
income $12,000 of COD income under
section 108(a)(1)(A). The COD income (had it
not been excluded) would have been
allocated $3,000 to A, $6,000 to B, and
$3,000 to C under section 1366(a). Prior to
the section 108(b)(2)(A) reduction, for the
taxable year of the discharge the shareholders
have disallowed losses and deductions under
section 1366(d) (including disallowed losses
carried over to the current year under section
1366(d)(2)) in the following amounts: A—
$9,000, B—$9,000, and C—$2,000. These
combined $20,000 of disallowed losses and
deductions for the taxable year of the
discharge are treated as a current year net
operating loss tax attribute for X under
section 108(d)(7)(B) (deemed NOL).
(ii) Under section 108(b)(2)(A), X’s $12,000
of excluded COD income reduces the $20,000
deemed NOL to $8,000. Therefore, X has an
$8,000 excess net operating loss (excess
deemed NOL) to allocate to the shareholders.
Under paragraph (d)(2)(ii)(C) of this section,
none of the $8,000 excess deemed NOL is
allocated to C because C’s section 1366(d)
losses and deductions immediately prior to
the section 108(b)(2)(A) reduction ($2,000) do
not exceed C’s share of the excluded COD
income for 2008 ($3,000). However, each of
A’s and B’s respective section 1366(d) losses
and deductions immediately prior to the
section 108(b)(2)(A) reduction exceed each of
A’s and B’s respective shares of the excluded
COD income for 2008. A’s excess amount is
$6,000 ($9,000¥$3,000) and B’s excess
amount is $3,000 ($9,000¥$6,000).
Therefore, the total of all shareholders’
excess amounts is $9,000. Under paragraph
(d)(2) of this section, X will allocate $5,333
of the $8,000 excess deemed NOL to A
($8,000 × $6,000/$9,000) and $2,667 of the
$8,000 excess deemed NOL to B ($8,000 ×
$3,000/$9,000). However, because A
transferred all of her shares of stock in X in
a transaction not described in section
1041(a), A’s $5,333 of section 1366(d) losses
and deductions are permanently disallowed
under paragraph (d)(2)(iii) of this section.
Accordingly, at the beginning of 2009, B has
$2,667 of section 1366(d)(2) carryovers and C
has no section 1366(d)(2) carryovers.
(f) Effective/applicability date—(1)
Paragraphs (a), (b), (c), and Examples 1,
2, 3, and 4 of paragraph (e) of this
section apply to discharges of
indebtedness occurring on or after May
10, 2004.
(2) Paragraph (d) and Examples 5 and
6 of paragraph (e) of this section apply
to discharges of indebtedness occurring
on or after the date that these
regulations are published as final
regulations in the Federal Register.
Linda E. Stiff,
Deputy Commissioner for Services and
Enforcement.
[FR Doc. E8–17952 Filed 8–5–08; 8:45 am]
BILLING CODE 4830–01–P
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FEDERAL MEDIATION AND
CONCILIATION SERVICE
29 CFR Part 1404
RIN 3076–AA12
Arbitration Services
Federal Mediation and
Conciliation Service.
ACTION: Notice of proposed rulemaking.
AGENCY:
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
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Federal Register / Vol. 73, No. 152 / Wednesday, August 6, 2008 / Proposed Rules
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 Listing on the roster; criteria for
listing and retention.
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(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:
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3. Revise § 1404.6 to read as follows:
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§ 1404.6
Inactive status.
5. Revise § 1404.12 to read as follows:
(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 Procedures for requesting
arbitration lists and panels.
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(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.
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(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.
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45661
§ 1404.12 Selection by parties and
appointment of arbitrators.
(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
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Federal Register / Vol. 73, No. 152 / Wednesday, August 6, 2008 / Proposed Rules
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]
BILLING CODE 6732–01–P
DEPARTMENT OF COMMERCE
Patent and Trademark Office
37 CFR Parts 1, 2, and 3
[Docket No. PTO–P–2008–0022]
RIN 0651–AC27
Changes to Practice for Documents
Submitted to the United States Patent
and Trademark Office
United States Patent and
Trademark Office, Commerce.
ACTION: Notice of proposed rulemaking.
yshivers on PROD1PC62 with PROPOSALS
AGENCY:
SUMMARY: The United States Patent and
Trademark Office (Office) is proposing
to revise the rules of practice to limit the
types of correspondence that may be
submitted to the Office by facsimile.
The Office is also proposing an
increased minimum font size for use on
papers submitted to the Office for a
patent application, patent or
reexamination proceeding. The
proposed changes will improve the
legibility of documents in the Office’s
files of patent applications and
reexamination proceedings.
DATES: Written comments must be
received on or before October 6, 2008.
No public hearing will be held.
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Jkt 214001
Comments should be sent
by electronic mail over the Internet
addressed to
AC27.comments@uspto.gov. Comments
may also be submitted by mail
addressed to: Mail Stop CommentsPatents, Commissioner for Patents, P.O.
Box 1450, Alexandria, VA 22313–1450,
marked to the attention of Raul Tamayo,
Legal Advisor, Office of Patent Legal
Administration (OPLA). Although
comments may be submitted by mail,
the Office prefers to receive comments
via the Internet.
Comments may also be sent by
electronic mail message over the
Internet via the Federal eRulemaking
Portal. See the Federal eRulemaking
Portal Web site (https://
www.regulations.gov) for additional
instructions on providing comments via
the Federal eRulemaking Portal.
The comments will be available for
public inspection at the Office of Patent
Legal Administration, Office of the
Deputy Commissioner for Patent
Examination Policy, currently located at
Room 7D74 of Madison West, 600
Dulany Street, Alexandria, Virginia and
will also be available through
anonymous file transfer protocol (ftp)
via the Internet (address: https://
www.uspto.gov). Because comments will
be made available for public inspection,
information that is not desired to be
made public, such as an address or a
telephone number, should not be
included in the comments.
FOR FURTHER INFORMATION CONTACT:
Hiram H. Bernstein ((571) 272–7707),
Senior Legal Advisor, or Raul Tamayo,
Legal Advisor, ((571) 272–7728), Office
of Patent Legal Administration, Office of
Deputy Commissioner for Patent
Examination Policy, directly by
telephone, or by mail addressed to: Mail
Stop Comments-Patents, Commissioner
for Patents, P.O. Box 1450, Alexandria,
VA 22313–1450, marked to the attention
of the Office of Patent Legal
Administration.
For information regarding
reexamination issues, contact Stephen
Marcus ((571) 272–7743) or Kenneth
Schor ((571) 272–7710), Senior Legal
Advisors, Office of Patent Legal
Administration, Office of Deputy
Commissioner for Patent Examination
Policy.
SUPPLEMENTARY INFORMATION: The Office
is proposing to revise the rules of
practice in title 37 of the Code of
Federal Regulations (CFR) for facsimile
transmissions of correspondence, and
the minimum font size required to be
used. The Office is specifically
proposing revising §§ 1.6, 1.52, 1.366,
2.195, 3.24, and 3.25.
ADDRESSES:
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I. Background
The number of patent applications
and patent-related correspondence
received by the Office has increased
substantially over the last few years, and
submissions are expected to continue to
increase in the next few years.
Processing paper is extremely laborintensive and subject to error and
misfiling, particularly as the Office must
sort through several thousand pieces of
patent correspondence that are received
on a daily basis. Although the Office has
made substantial changes in an attempt
to accurately and efficiently process the
increased number of correspondence
received, the Office believes that it
should make further changes in its
business practices to improve its
handling of patent correspondence.
II. Facsimile Transmission
In 1988, the Office, due to widespread
use of facsimile transmission and the
resulting time saved in correspondence
between applicants and the Office,
established a trial program to accept
facsimile transmission of certain
correspondence. In light of the success
of the trial program, a policy on
acceptance of facsimile transmissions
was incorporated into the rules of
practice. See Changes in Signature and
Filing Requirements for Correspondence
Files in the Patent and Trademark
Office, 58 FR 54494 (October 22, 1993).
Facsimile transmission of
correspondence has grown to over
240,000 pieces of patent correspondence
per year sent to the Office’s central
facsimile number. While the number of
facsimile transmissions in any one
application may be small, the overall
number of facsimile transmissions
represents a significant processing
burden on the Office.
The advantage of facsimile
transmitting patent and assignment
correspondence has been the quick
submission of such correspondence to
the particular area of the Office
concerned with promptly acting on
them. The advantage, however, is not
exclusive to facsimile transmissions.
EFS–Web offers this advantage as well
as others not available with facsimile
transmission. For example, EFS–Web
submissions are ‘‘soft scanned’’ (i.e.,
electronically uploaded) directly into
the official application file, so multiple
Office employees can simultaneously
view the document(s). Furthermore,
when documents are submitted via
EFS–Web, the Office’s electronic system
sends an auto-generated message
notifying the appropriate area which
treats the type of documents submitted.
Additionally, EFS–Web offers
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]]>Agencies
[Federal Register Volume 73, Number 152 (Wednesday, August 6, 2008)]
[Proposed Rules]
[Pages 45660-45662]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-17674]
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FEDERAL MEDIATION AND CONCILIATION SERVICE
29 CFR Part 1404
RIN 3076-AA12
Arbitration Services
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
[[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 Sec. 1404.5, revise paragraph (d) to read as follows:
Sec. 1404.5 Listing on the roster; criteria for listing and
retention.
* * * * *
(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 Sec. 1404.6 to read as follows:
Sec. 1404.6 Inactive status.
(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 Sec. 1404.9 by revising paragraphs (b) and (d) to read as
follows:
Sec. 1404.9 Procedures for requesting arbitration lists and panels.
* * * * *
(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 Sec. 1404.12 to read as follows:
Sec. 1404.12 Selection by parties and appointment of arbitrators.
(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
[[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]
BILLING CODE 6732-01-P
