Recent Activities and Highlights from the

Administrative Enforcement and Regulatory Process Section

July 27, 2015

Outreach:

Administrative Enforcement and Regulatory Process (AERP) activities were 

recently presented at the American Bar Association’s Dispute Resolution 

Section’s April conference in Seattle, Washington on the topic, “The Current 

State of ADR is a Many Splendid Thing.” Four representatives highlighted ADR 

trends, opportunities, and new tools across Sections of the IADRWG programs, 

inclusive of AERP. IADRWG Workplace Section representative of the Equal 

Employment Opportunity Commission addressed the robust use of workplace 

coaching to prevent and resolve disputes. From an AERP prospective, the Federal 

Maritime Commission (FMC) panelist highlighted current agency trends in 

regulatory ADR namely the continued institutionalization of existing programs 

(e.g. new Safety Transportation Board arbitration and mediation regulation; FMC 

mandatory mediation rule); enhanced focus on private party disputes (e.g. ITC, 

STB, FMC, FERC programs address private commercial regulatory concerns); and 

meeting the need for real time ADR services (e.g., FMC ombuds and rapid 

response teams, STB rail consumer assistance program, and FERC ADR and 

Landowner Helplines). The U.S. Institute for Environmental Conflict Resolution 

provided a robust discussion of the role of Environmental Collaboration and 

Conflict Resolution in facilitating and resolving environmental disputes. A former 

government official with National Archives and Records Administration provide 

an overview of NARA’s work in ombuds, mediation, and facilitation to assist 

Freedom of Information Act professionals resolve disputes with private parties. 

Submitted by Jennifer Gartlan, FMC

Agency Program Overviews and Updates: 

U.S. Environmental Protection Agency: The U.S. Environmental Protection 

Agency has had its current ADR program since 1999. The EPA’s Conflict 

Prevention and Resolution Center, headed by the agency’s Dispute Resolution 

Specialist, ensures that internal and external ADR processes are administered 

properly under such statutes as the Administrative Dispute Resolution Act of 1996 

and Alternative Dispute Resolution Act of 1998, and leads the external 

environmental ADR practice, known now as Environmental Collaboration and 

Conflict Resolution (ECCR). The CPRC also administers the largest ADR 

services contract in the federal government, coordinates policy and practice with 

the 10 EPA Regions, and is a key participant in the IADRWG. The Dispute 

Resolution Specialist also ensures that internal ADR processes in the Office of 

Human Resources (Workplace Solutions) and the Office of Civil Rights are 
fulfilled according to relevant statutes and authorities. The CPRC coordinated the 

EPA’s FY 2014 ECCR Annual Report to the Office of Management and Budget 

and Council on Environmental Quality. In its ECCR Annual Report, the agency

reported that it sponsored or participated in a total of 184 ECCR cases, which 

represents an increase of 10% over the number of cases reported for FY 2013. 

The EPA also reported that it used about $6.7 million in ECCR and related 

services under its ADR services contract during FY 2014, which is a record level 

of expenditure since the EPA began its annual ECCR reporting to OMB/CEQ. The 

number of cases and financial investments reported reflects the EPA’s ongoing 

support for ECCR, which extends to all of its Regional offices and all 

environmental programs. The ECCR Annual Report also highlighted the Sumas 

Mountain/Swift Creek ECCR process, which produced a negotiated agreement 

concerning the management of a site with naturally occurring asbestos. 

Submitted by Shawn Grindstaff, U.S.EPA

United States International Trade Commission - 337 Mediation Program: 

In 2008, the United States International Trade Commission (“Commission”) 

launched the 337 Mediation Program to enhance the efficiency of the Section 337

adjudication process and managing the Section 337 caseload. The Commission’s 

mediation program provides litigants a confidential, cost-effective, and quick 

mechanism of case evaluation and provides an opportunity for early settlement. 

All Section 337 investigations are eligible to participate in the 337 Mediation 

Program. There are three ways a case can proceed to mediation: the parties 

voluntarily agree to mediation; the Secretary or the presiding Administrative Law 

Judge (“ALJ”) refers the case to mediation; or, the presiding ALJ may order 

attendance at a mediation session, pursuant to 5 U.S.C. § 556(c)(6), (8). 

The 337 Mediation Program is administered by the Secretary to the Commission 

and supervised by the Office of the Chairman. The Commission maintains a roster 

of experienced and accomplished mediators recruited from the ranks of 

distinguished retired Federal jurists and former senior counsel from intellectual 

property practices. Many serve in a similar capacity for the U.S. Court of Appeals 

for the Federal Circuit, for other federal courts, and for state courts around the 

country. Roster members provide a single-day session of mediation on a pro bono 

basis and may be available for additional sessions if parties so desire. Mediation 

roster members are located in major intellectual property commerce centers 

around the country, with new mediators and other venues being added as the 

program expands. The 337 Mediation Program plays an important part in ensuring 

the Commission’s continued success in accomplishing its mission of administering 

U.S. trade remedy laws within its mandate in a fair and objective manner. To 

assess and enhance the effectiveness of the program, the Commission is 

developing a survey to be taken by participants in 337 investigations. Further 

information about the Section 337 Mediation Program may be found on the 
Commission's website at 

http://www.usitc.gov/intellectual_property/mediation.htm

Submitted by Sally Bromley, U.S. ITC

Federal Maritime Commission: The Office of Consumer Affairs & Dispute 

Resolution (CADRS) participated in 3 national port forums held by the FMC in 

Los Angeles (Sept. 15, 2014), Baltimore (Oct. 1, 2014), and Charleston (Oct. 30, 

2014). These forums were attended by representatives from federal and state 

government, cargo owners, truckers, steam ship lines, labor interests, marine 

terminal operators, port authorities, and other stakeholders and explored 

underlying causes and potential solutions for port congestion. As a follow up to 

the forums, CADRS staff routinely have been providing rapid response and 

ombuds services to cargo owners, transportation intermediaries, truckers, steam 

ship lines, and marine terminal operators to help resolve challenges and disputes 

related to recent port congestion experienced on the east and west coasts.

Submitted by Jennifer Gartlan, FMC

Federal Energy Regulatory Commission: On April 16, 2015 the Federal Energy 

Regulatory Commission (FERC) approved an uncontested settlement to resolve all 

disputed issues related to the American Midstream (Midla), LLC plan to abandon 

its interstate natural gas facilities. The settlement was the result of a mediation 

conducted by FERC’s Dispute Resolution Division (DRD) and provides continuity 

of gas or propane service to shippers currently served by Midla. The case was 

initially contentious since the applicant requested the abandonment of over 300 

miles of older natural gas pipeline in two states. The mediated solution and 

unopposed settlement was creative and met the interest of all parties to the 

settlement. For more on the Midla case visit: 

http://elibrary.ferc.gov/idmws/search/results.asp and insert: Docket No. RP14-

638-000, CP14-125-000 et al., Atmos Energy Corporation v. American Midstream 

(Midla) LLC and the approval date April 16, 2015. In addition to the Midla and 

other significant mediation achievements, FERC’s Dispute Resolution Division 

conducted: 4 educational events on energy ADR and international energy ADR in 

partnership with the Energy Bar Association; presentations to 2 international 

delegations from South Korea and Uganda on FERC’s ADR program; 3 

educational sessions to FERC employees on ADR tools to employ in critical 

negotiations; and 2 workshops on understanding different temperament styles to 

have constructive dialogue in the context of working as leaders, in teams, and oneon-one. 

Submitted by Deborah M. Osborne, FERC