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###### Federal Maritime Commission

###### [Docket No. 01-05] 

          - 46 CFR Part 502 

# AGENCY:

Federal Maritime Commission. 

# ACTION:

Notice of proposed rulemaking. 

# SUMMARY:

The Federal Maritime Commission proposes to issue new regulations implementing the Administrative Dispute Resolution Act. The new regulations would expand the Commission's Alternative Dispute Resolution (“ADR”) services, addressing guidelines and procedures for arbitration and providing for mediation and other ADR services. This proposed rule would replace current subpart U, Conciliation Service, with a new subpart U, Alternative Dispute Resolution, that would contain a new Commission ADR policy and provisions for various means of ADR. The proposal also would revise certain other regulations to conform to the Commission's new ADR policy. 

# DATES:

Submit an original and 15 copies of comments (paper), or e-mail comments as an attachment in WordPerfect 8, Microsoft Word 97, or earlier versions of these applications, no later than June 20, 2001. 

# ADDRESSES:

                        Address all comments concerning this proposed rule to: Bryant L. VanBrakle, Secretary, Federal Maritime Commission 800 North Capitol Street, NW., Room 1046, Washington, DC 20573-0001, E-mail:                         *secretary@fmc.gov.*

      ( print page 27922)    

# FOR FURTHER INFORMATION CONTACT:

                        Ronald D. Murphy, Commission Dispute Resolution Specialist, Federal Maritime Commission 800 North Capitol Street, NW., Room 970, Washington, DC 20573-0001, 202-523-5787, E-mail:                         *adr@fmc.gov.*

# SUPPLEMENTARY INFORMATION:

Alternative Dispute Resolution (“ADR”) refers to a variety of means to resolve conflicts or disputes, generally using a neutral third party to help the parties communicate and resolve their dispute. Generally, ADR is voluntary, and is designed to enable and empower the parties to a dispute to seek solutions which they decide meet their needs. ADR does not take the place of traditional processes; rather, it provides alternatives to traditional processes. 

The Administrative Dispute Resolution Act (“ADRA”) was first promulgated in 1990 (Public Law No. 101-552), and subsequently amended in 1996 (Public Law No. 104-320). It defines ADR to mean any procedure that is used to resolve issues in controversy, including, but not limited to, conciliation, facilitation, mediation, fact-finding, minitrials, arbitration, and use of ombuds, or any combination thereof, 5 U.S.C. 571(3). 

It is difficult to precisely define the various procedures used under the umbrella of ADR. There are a variety of definitions and the various procedures often overlap each other. The definitions of the various procedures are not as important, however, as is their focus on resolving disputes. Nevertheless, the following general descriptions may help explain the broad range of ADR procedures provided for by ADRA. 

Mediation is the most frequently used ADR procedure. It is a process in which a mediator facilitates communication and negotiation between or among parties to a controversy and assists them in reaching a mutually acceptable resolution of the controversy. Mediation is a voluntary procedure, the key aspect of which is that the parties control the terms of any agreement to resolve the dispute. Conciliation is similar, but is relatively informal and unstructured in comparison to mediation. It is often used as a “cooling off” device. Facilitation, on the other hand, is a group process that is usually goal-oriented. These procedures can be considered forms of assisted negotiation. 

Fact-finding, as used in the ADR context, involves the use of a neutral third party to investigate and determine a disputed fact. It is usually used for technical issues or significant factual issues which are part of a larger dispute. Sometimes, fact-finding is used in conjunction with mediation to resolve a fact which may be important to resolution of the controversy. The term mini-trials may be used to describe a procedure whereby the parties present a summary case before a panel of the parties' decision-makers. The panel then may negotiate and seek a consensus. 

Arbitration in the form provided for under the ADRA is perhaps familiar to most by the term “binding arbitration.” It is an adjudicatory process, the scope of which in a particular controversy is defined in an arbitration agreement. Awards in such proceedings are enforceable in federal District Court pursuant to title 9 of the U.S. Code. 

The use of ombuds was added to ADRA's definition of ADR in the 1996 amendments. It involves the use of an employee or organization component to whom complaints or problems can be brought with the hopes of quick, informal resolution. 

Section 2 of ADRA spells out a number of congressional findings that led to passage of the statute. Among them are the increasingly formal, costly and lengthy administrative proceedings that were intended to offer a prompt, expert and inexpensive means of resolving disputes as an alternative to Federal court litigation. Also, ADR has been used in the private sector for many years, yielding quicker, less expensive and less contentious decisions. 

Section 3 of ADRA requires each agency to adopt a policy that addresses the use of ADR and case management. In developing the policy, agencies are required to examine ADR in connection with formal and informal adjudications, rulemakings, enforcement actions, issuing and revoking licenses or permits, contract administration, and litigation by or against the agency. 

On July 13, 1993, the Commission issued an Alternative Dispute Resolution Policy Statement. In it, the Commission stated its policy to encourage the use of ADR to the fullest extent compatible with the law and the agency's mission and resources. It noted that Commission employees and other persons involved in disputes before the Commission are required to consider at an early stage whether the use of ADR techniques would be appropriate and useful in a particular matter. 

The policy statement noted that several rules of the Commission's Rules of Practice and Procedure address the issue of ADR. Rule 1 refers to the mandatory consideration of the use of ADR in all proceedings. Rule 56 deals with negotiated rulemakings. Rule 61 requires orders instituting a formal investigation or noticing the filing of a complaint to contain language requiring that, prior to the commencement of oral hearing, consideration be given by the parties and presiding officer to the use of alternative means of dispute resolution. Rule 94 authorizes presiding officers to direct parties to attend one or more prehearing conferences and requires that the use of alternative means of dispute resolution be considered at such conferences. Rule 147 provides authority to the presiding officer to encourage the use of ADR and require consideration of ADR at an early stage in the proceeding. Rule 91(d) specifically authorizes the Chief Administrative Law Judge to appoint a mediator or settlement judge acceptable to all parties. In addition, nonattorneys may be admitted to practice before the Commission and persons may appear on their own behalf or on behalf of their employer without having been admitted to practice, 46 CFR 502.27. 

The policy statement also identifies other means of implementing ADR at the Commission. The informal procedure for adjudication of claims of $10,000 or less in Subpart S, in effect, involves a form of arbitration. The shortened procedure in Subpart K provides a means to have the complaint resolved by an administrative law judge upon a written record without oral hearing. A conciliation service is provided for under Subpart U, and the policy statement also refers generally to services provided by the then Office of Informal Inquiries, Complaints and Informal Dockets within the Office of the Secretary. Those services are now provided by the Office of Consumer Complaints within the Bureau of Consumer Complaints and Licensing. 

The Commission's rules provide for nonadjudicatory investigations under Subpart R and compromise procedures under Subpart W. Moreover, the services of a Settlement Judge are available and will continue to be available pursuant to section 502.91. 

In addition to requiring an agency policy statement, ADRA requires each agency to designate a Dispute Resolution Specialist of the agency, and to provide for training on a regular basis for the Dispute Resolution Specialist and other employees involved in implementing the agency's policy. The Commission has designated the Deputy Director, Bureau of Consumer Complaints and Licensing as its Dispute Resolution Specialist, 46 CFR 501.5(h)(1). 

                    Other key provisions of ADRA authorize agencies to use a dispute resolution proceeding for the resolution of an issue in controversy if the parties                           ( print page 27923)                        agree to such proceeding, 5 U.S.C. 572; provide that a neutral may be an officer or employee of the Federal Government or any other individual acceptable to the parties, 5 U.S.C. 573; provide for confidentiality of communications, 5 U.S.C. 574; and provide for arbitration in lieu of formal administrative proceedings, 5 U.S.C. 575-580.                 

When reorganizing the Commission in February 2000, one of the primary reforms was a plan to develop a refined ADR program for the Commission. The intent was to involve the agency more deeply in ADR and other mediation activities so as to find ways to settle disputes without having them processed via costly and time-consuming formal adjudications. Since then, Commission staff has been developing the ADR process and pursuing training and developmental activities. 

The Commission's Dispute Resolution Specialist is a certified mediator and has made his services available to parties in formal complaint proceedings. Recently, those mediation services were instrumental in the parties to such a proceeding reaching an agreement that resolved not only the formal proceeding pending at the Commission, but also a pending suit before a state court. 

Also within the scope of the Commission's Dispute Resolution Services are the ombuds services provided by the Office of Consumer Complaints (“OCC”) within the Bureau of Consumer Complaints and Licensing. During the past year, a number of events have caused many to avail themselves more of those services. The failure of a number of non-vessel-operating common carriers (“NVOCCs”) generated numerous complaints from shippers and freight forwarders. Some of the problems affected commercial shippers, while others concerned individual shippers of household goods and automobiles. Also, a number of problems were experienced with unlicensed and unbonded NVOCCs that failed to fulfill their transportation commitments. A number of these matters were resolved to the satisfaction of shippers and forwarders. In addition, recent failures of cruise lines have generated a substantial number of complaints. For the most recent fiscal year, the Commission's ombuds services responded to more than 2900 inquiries and complaints, and the efforts of OCC yielded over $193,000 in recoveries for those making complaints. 

At this time, the Commission intends to further expand ADR services available from the Commission and issue the following proposed new rules. The proposed rules would implement an enhanced, comprehensive ADR program. These rules would emphasize requiring ADR consideration at early stages of proceedings and would provide for arbitration of matters at the Commission. The Commission will endeavor to provide mediation and other assisted negotiation procedures, and the rules provide for such services. Section 502.61 would be modified to make it mandatory for parties to consider ADR at an early stage of every proceeding in such a manner as the presiding Administrative Law Judge shall direct. Section 502.62 would be modified to require complainants to address the use of ADR when filing a complaint. Section 502.91 is revised to expand the means of ADR available in proceedings before Administrative Law Judges and to require the parties to consider ADR in all proceedings. Section 502.94 is modified to require consideration of ADR at prehearing conferences. Also, the current $10,000 limitation for informal docket proceedings in 502.301 has not been raised in a number of years, and would be raised to $50,000. 

Finally, the conciliation service provided for in Subpart U of the Commission's Rules of Practice and Procedure has rarely been utilized, and would now be revised to provide a framework by which the Commission will provide a number of ADR services. Although many provisions of the proposed rule may seem focused on the use of ADR in formal proceedings, the Commission encourages use of the Commission's dispute resolution services at any stage. To do so, parties should contact the Commission's Dispute Resolution Specialist. 

                    The provisions in the new proposed Subpart U regarding arbitration and confidentiality for the most part would be identical to provisions in the ADRA. Section 502.411, however, provides for mediation and other services, and makes clear that mediators and other neutrals involved in various means of dispute resolution are not bound by the Commission's                     *ex parte*                     rules. Mediators would be expressly authorized to conduct private sessions (or caucuses) with parties. While many mediators attempt to resolve disputes with little use of such caucuses, their use can be very effective in resolving many disputes.                 

                    The proposed rule contains no additional information collection or record keeping requirements and need not be submitted to OMB for approval under the Paperwork Reduction Act, 44 U.S.C. 3501*et seq.*

The Chairman certifies, pursuant to 5 U.S.C. 605, that the proposed rule would not have a significant impact on a substantial number of small entities. The final rule would expedite the complaint process, thereby reducing costs to small entities, while at the same time providing them with more assistance. 

# List of Subjects in 46 CFR Part 502

      - Administrative practice and procedure
      - Claims
      - Equal access to justice
      - Investigations
      - Lawyers
      - Maritime carriers
      - Penalties
      - Reporting and recordkeeping requirements

For the reasons stated in the preamble, the Federal Maritime Commission proposes to amend 46 CFR part 502 as follows: 

# PART 502—RULES OF PRACTICE AND PROCEDURE 

1. The authority section is revised to read: 

Authority:5 U.S.C. 504, 551, 552, 553, 556(c), 559, 561-569, 571-596; 5 U.S.C. 571-584; 12 U.S.C. 1141j(a); 18 U.S.C. 207; 26 U.S.C. 501(c)(3); 28 U.S.C. 2112(a); 31 U.S.C. 9701; 46 U.S.C. app. 817d, 817e, 1114(b), 1705, 1707-1711, 1713-1716; E.O. 11222 of May 8, 1965, 30 FR 6469, 3 CFR, 1964-1965 Comp. p. 306; 21 U.S.C. 853a; Pub. L. 105-258, 112 Stat. 1902. 

2. Section 502.61 is amended by revising paragraph (d) to read as follows: 

§ 502.61

* * * * *

(d) All orders instituting a proceeding or noticing the filing of a complaint will contain language requiring that at an early stage of the proceeding and when practicable the parties shall consider the use of alternative dispute resolution in such manner as the presiding officer shall direct and further requiring that hearings shall include oral testimony and cross-examination in the discretion of the presiding officer only upon proper showing that there are genuine issues of material fact that cannot be resolved on the basis of sworn statements, affidavits, depositions, or other documents, or that the nature of the matter in issue is such that an oral hearing and cross-examination are necessary for the development of an adequate record. [Rule 61.] 

2a. Section 502.62 is amended by redesignating paragraphs (e) through (h) as paragraphs (f) through (i) and adding a new paragraph (e) to read as follows: 

§ 502.62 

* * * * *

                            (e) Complainant(s) must state whether informal dispute resolution procedures were used prior to filing the complaint and whether complainant(s) consulted with the Commission Dispute                                   ( print page 27924)                                Resolution Specialist about utilizing alternative dispute resolution (ADR) under the Commission's ADR program.                         

* * * * *

3. Section 502.91 is amended by revising current paragraph (d) and adding new paragraphs (e) and (f) to read as follows: 

§ 502.91 

* * * * *

(d) As soon as practicable after the commencement of any proceeding, the presiding judge shall direct the parties or their representatives to consider the use of alternative dispute resolution, including but not limited to mediation, and may direct the parties or their representatives to consult with the Federal Maritime Commission Alternative Dispute Resolution Specialist about the feasibility of alternative dispute resolution. 

(e) Any party may request that a mediator or other neutral be appointed to assist the parties in reaching a settlement. If such a request or suggestion is made and is not opposed, the presiding judge will appoint a mediator or other neutral who is acceptable to all parties, coordinating with the Federal Maritime Commission Alternative Dispute Resolution Specialist. The mediator or other neutral shall convene and conduct one or more mediation or other sessions with the parties and shall inform the presiding judge, within the time prescribed by the presiding judge, whether the dispute resolution proceeding resulted in a resolution or not, and may make recommendations as to future proceedings. If settlement is reached, it shall be submitted to the presiding judge who shall issue an appropriate decision or ruling. All such dispute resolution proceedings shall be subject to the provisions of subpart U. 

(f) Any party may request that a settlement judge be appointed to assist the parties in reaching a settlement. If such a request or suggestion is made and is not opposed, the presiding judge will advise the Chief Administrative Law Judge who may appoint a settlement judge who is acceptable to all parties. The settlement judge shall convene and preside over conferences and settlement negotiations and shall report to the presiding judge within the time prescribed by the Chief Administrative Law Judge, on the results of settlement discussions with appropriate recommendations as to future proceedings. If settlement is reached, it shall be submitted to the presiding judge who shall issue an appropriate decision or ruling. [Rule 91]. 

4. Section 502.94 is amended by revising paragraph (c) to read as follows: 

§ 502.94 

* * * * *

(c) At any prehearing conference, consideration shall be given to whether the use of alternative dispute resolution would be appropriate or useful for the disposition of the proceeding whether or not there has been previous consideration of such use. 

5. Section 502.301 is amended by revising paragraph (b) to read as follows: 

§ 502.301 

* * * * *

(b) With the consent of both parties, claims filed under this subpart in the amount of $50,000 or less will be decided by a Settlement Officer appointed by the Commission's Alternative Dispute Resolution Specialist, without the necessity of formal proceedings under the rules of this part. Authority to issue decisions under this subpart is delegated to the appointed Settlement Officer. 

* * * * *

6. Subpart U is revised in its entirety to read as follows: 

# Subpart U—Alternative Dispute Resolution

        - 502.401
        - Policy. 
        - 502.402
        - Definitions. 
        - 502.403
        - General authority. 
        - 502.404
        - Neutrals. 
        - 502.405
        - Confidentiality. 
        - 502.406
        - Arbitration. 
        - 502.407
        - Authority of the arbitrator. 
        - 502.408
        - Conduct of arbitration proceedings. 
        - 502.409
        - Arbitration awards. 
        - 502.410
        - Representation of parties. 
        - 502.411
        - Mediation and other alternative means of dispute resolution. 

§ 502.401

It is the policy of the Federal Maritime Commission to use alternative means of dispute resolution to the fullest extent compatible with the law and the agency's mission and resources. The Commission will consider using ADR in all areas including workplace issues, formal and informal adjudication, issuance of regulations, enforcement and compliance, issuing and revoking licenses and permits, contract award and administration, litigation brought by or against the Commission, and other interactions with the public and the regulated community. The Commission will provide learning and development opportunities for its employees to develop their ability to use conflict resolution skills, instill knowledge of the theory and practice of ADR, and to facilitate appropriate use of ADR. To this end, all parties to matters under this part are required to consider use of a wide range of alternative means to resolve disputes at an early stage. Parties are encouraged to pursue use of alternative means through the Commission's Bureau of Consumer Complaints and Licensing in lieu of or prior to initiating a Commission proceeding. All employees and persons who interact with the Commission are encouraged to identify opportunities for collaborative, consensual approaches to dispute resolution or rulemaking. 

§ 502.402

                            (a)                             *Alternative means of dispute resolution*                             means any procedure that is used to resolve issues in controversy, including, but not limited to, conciliation, facilitation, mediation, factfinding, minitrials, arbitration, and use of ombuds, or any combination thereof;                         

                            (b)                             *Award*                             means any decision by an arbitrator resolving the issues in controversy;                         

                            (c)                             *Dispute resolution communication*                             means any oral or written communication prepared for the purposes of a dispute resolution proceeding, including any memoranda, notes or work product of the neutral, parties or nonparty participant; except that a written agreement to enter into a dispute resolution proceeding, or final written agreement or arbitral award reached as a result of a dispute resolution proceeding, is not a dispute resolution communication;                         

                            (d)                             *Dispute resolution proceeding*                             means any process in which an alternative means of dispute resolution is used to resolve an issue in controversy in which a neutral is appointed and specified parties participate;                         

                            (e)                             *In confidence*                             means, with respect to information, that the information is provided—                         

(1) With the expressed intent of the source that it not be disclosed; or 

(2) Under circumstances that would create the reasonable expectation on behalf of the source that the information will not be disclosed; 

                            (f)                             *Issue in controversy*                             means an issue which is material to a decision concerning a program of the Commission, and with which there is disagreement—                         

(1) Between the Commission and persons who would be substantially affected by the decision; or 

                            (2) Between persons who would be substantially affected by the decision;                                   ( print page 27925)    

                            (g)                             *Neutral*                             means an individual who, with respect to an issue in controversy, functions specifically to aid the parties in resolving the controversy; and                         

                            (h)                             *Person*                             has the same meaning as in 5 U.S.C. 551(2).                         

§ 502.403 

(a) The Commission intends to consider using a dispute resolution proceeding for the resolution of an issue in controversy, if the parties agree to such proceeding. 

(b) The Commission will consider not using a dispute resolution proceeding if— 

(1) A definitive or authoritative resolution of the matter is required for precedential value, and such a proceeding is not likely to be accepted generally as an authoritative precedent; 

(2) The matter involves or may bear upon significant questions of Government policy that require additional procedures before a final resolution may be made, and such a proceeding would not likely serve to develop a recommended policy for the agency; 

(3) Maintaining established policies is of special importance, so that variations among individual decisions are not increased and such a proceeding would not likely reach consistent results among individual decisions; 

(4) The matter significantly affects persons or organizations who are not parties to the proceeding; 

(5) A full public record of the proceeding is important, and a dispute resolution proceeding cannot provide such a record; and 

(6) The Commission must maintain continuing jurisdiction over the matter with authority to alter the disposition of the matter in the light of changed circumstances, and a dispute resolution proceeding would interfere with the Commission's fulfilling that requirement. 

(c) Alternative means of dispute resolution authorized under this subpart are voluntary procedures which supplement rather than limit other available agency dispute resolution techniques. 

§ 502.404

(a) A neutral may be a permanent or temporary officer or employee of the Federal Government or any other individual who is acceptable to the parties to a dispute resolution proceeding. A neutral shall have no official, financial, or personal conflict of interest with respect to the issues in controversy, unless such interest is fully disclosed in writing to all parties and all parties agree that the neutral may serve. 

(b) A neutral who serves as a conciliator, facilitator, or mediator serves at the will of the parties. 

(c) With consent of the parties, the Commission's Dispute Resolution Specialist will seek to provide a neutral in dispute resolution proceedings through Commission staff, arrangements with other agencies, or on a contractual basis. 

(d) Fees. Should parties choose a neutral other than an official or employee of the Commission, fees and expenses shall be borne by the parties as the parties shall agree. 

§ 502.405

(a) Except as provided in paragraphs (d) and (e) of this section, a neutral in a dispute resolution proceeding shall not voluntarily disclose or through discovery or compulsory process be required to disclose any dispute resolution communication or any communication provided in confidence to the neutral, unless—

(1) All parties to the dispute resolution proceeding and the neutral consent in writing, and, if the dispute resolution communication was provided by a nonparty participant, that participant also consents in writing; 

(2) The dispute resolution communication has already been made public; 

(3) The dispute resolution communication is required by statute to be made public, but a neutral should make such communication public only if no other person is reasonably available to disclose the communication; or 

(4) A court determines that such testimony or disclosure is necessary to—

(i) Prevent a manifest injustice; 

(ii) Help establish a violation of law; or 

(iii) Prevent harm to the public health or safety, of sufficient magnitude in the particular case to outweigh the integrity of dispute resolution proceedings in general by reducing the confidence of parties in future cases that their communications will remain confidential. 

(b) A party to a dispute resolution proceeding shall not voluntarily disclose or through discovery or compulsory process be required to disclose any dispute resolution communication, unless—

(1) The communication was prepared by the party seeking disclosure; 

(2) All parties to the dispute resolution proceeding consent in writing; 

(3) The dispute resolution communication has already been made public; 

(4) The dispute resolution communication is required by statute to be made public; 

(5) A court determines that such testimony or disclosure is necessary to—

(i) Prevent a manifest injustice; 

(ii) Help establish a violation of law; or 

(iii) Prevent harm to the public health and safety, of sufficient magnitude in the particular case to outweigh the integrity of dispute resolution proceedings in general by reducing the confidence of parties in future cases that their communications will remain confidential; 

(6) The dispute resolution communication is relevant to determining the existence or meaning of an agreement or award that resulted from the dispute resolution proceeding or to the enforcement of such an agreement or award; or 

(7) Except for dispute resolution communications generated by the neutral, the dispute resolution communication was provided to or was available to all parties to the dispute resolution proceeding. 

(c) Any dispute resolution communication that is disclosed in violation of subsection (a) or (b) shall not be admissible in any proceeding relating to the issues in controversy with respect to which the communication was made. 

                            (d)(1) The parties may agree between or amongst themselves to alternative confidential procedures for disclosures by a neutral. Upon such agreement the parties shall inform the neutral before the commencement of the dispute resolution proceeding of any modifications to the provisions of paragraph (a) of this section that will govern the confidentiality of the dispute resolution proceeding in accordance with the guidance on confidentiality in federal proceedings published by the Inter Agency ADR Working Group and adopted by the ADR Council. (see                             *http://www.financenet.gov /financenet/fed/iadrwg/confid.pdf*). If the parties do not so inform the neutral, (a) shall apply.                         

(2) To qualify for the exemption under paragraph (j) of this section, an alternative confidential procedure under this subsection may not provide for less disclosure than the confidential procedures otherwise provided under this section. 

                            (e) If a demand for disclosure, by way of discovery request or other legal process, is made upon a neutral regarding a dispute resolution communication, the neutral shall make reasonable efforts to notify the parties                                   ( print page 27926)                                and any affected nonparty participants of the demand. Any party or affected nonparty participant who receives such notice and within 15 calendar days does not offer to defend a refusal of the neutral to disclose the requested information shall have waived any objection to such disclosure.                         

(f) Nothing in this section shall prevent the discovery or admissibility of any evidence that is otherwise discoverable, merely because the evidence was presented in the course of a dispute resolution proceeding. 

(g) Paragraphs (a) and (b) of this section shall have no effect on the information and data that are necessary to document an agreement reached or order issued pursuant to a dispute resolution proceeding. 

(h) Paragraphs (a) and (b) of this section shall not prevent the gathering of information for research or educational purposes, in cooperation with other agencies, governmental entities, or dispute resolution programs, so long as the parties and the specific issues in controversy are not identifiable. 

(i) Paragraphs (a) and (b) of this section shall not prevent use of a dispute resolution communication to resolve a dispute between the neutral in a dispute resolution proceeding and a party to or participant in such proceeding, so long as such dispute resolution communication is disclosed only to the extent necessary to resolve such dispute. 

(j) A dispute resolution communication which is between a neutral and a party and which may not be disclosed under this section shall also be exempt from disclosure under 5 U.S.C. 552(b)(3). 

§ 502.406

(a) (1) Arbitration may be used as an alternative means of dispute resolution whenever all parties consent, except that arbitration may not be used when the Commission or one of its components is a party. Consent may be obtained either before or after an issue in controversy has arisen. A party may agree to— 

(i) Submit only certain issues in controversy to arbitration; or 

(ii) Arbitration on the condition that the award must be within a range of possible outcomes. 

(2) The arbitration agreement that sets forth the subject matter submitted to the arbitrator shall be in writing. Each such arbitration agreement shall specify a maximum award that may be issued by the arbitrator and may specify other conditions limiting the range of possible outcomes. 

(b) With the concurrence of the Dispute Resolution Specialist, binding arbitration may be used to resolve any and all disputes that could be the subject of a Commission administrative proceeding before an Administrative Law Judge. The Dispute Resolution Specialist may withhold such concurrence after considering the factors specified in § 502.403, should the Commission's General Counsel object to use of binding arbitration. 

(c)(1) The Commission's Dispute Resolution Specialist will appoint an arbitrator of the parties' choosing for an arbitration proceeding. 

(2) A Commission officer or employee selected as an arbitrator by the parties and appointed by the Dispute Resolution Specialist shall have authority to settle an issue in controversy through binding arbitration pursuant to the arbitration agreement; provided, however, that decisions by arbitrators shall not have precedential value with respect to decisions by Administrative Law Judges or the Commission. Administrative Law Judges may be appointed as arbitrators with the concurrence of the Chief Administrative Law Judge. 

(d) The arbitrator shall be a neutral who meets the criteria of 5 U.S.C. 573. 

§ 502.407 

An arbitrator to whom a dispute is referred may—

(a) Regulate the course of and conduct arbitral hearings; 

(b) Administer oaths and affirmations; 

(c) Compel the attendance of witnesses and production of evidence at the hearing under the provisions of 9 U.S.C. 7 only to the extent the Commission is otherwise authorized by law to do so; and 

(d) Make awards. 

§ 502.408 

(a) The arbitrator shall set a time and place for the hearing on the dispute and shall notify the parties not less than 5 days before the hearing. 

(b) Any party wishing a record of the hearing shall—

(1) Be responsible for the preparation of such record; 

(2) Notify the other parties and the arbitrator of the preparation of such record; 

(3) Furnish copies to all identified parties and the arbitrator; and 

(4) Pay all costs for such record, unless the parties agree otherwise or the arbitrator determines that the costs should be apportioned. 

(c)(1) The parties to the arbitration are entitled to be heard, to present evidence material to the controversy, and to cross-examine witnesses appearing at the hearing. 

(2) The arbitrator may, with the consent of the parties, conduct all or part of the hearing by telephone, television, computer, or other electronic means, if each party has an opportunity to participate. 

(3) The hearing shall be conducted expeditiously and in an informal manner. 

(4) The arbitrator may receive any oral or documentary evidence, except that irrelevant, immaterial, unduly repetitious, or privileged evidence may be excluded by the arbitrator. 

(5) The arbitrator shall interpret and apply relevant statutory and regulatory requirements, legal precedents, and policy directives. 

                            (d) The provisions of § 502.11 regarding                             *ex parte*                             communications apply to all arbitration proceedings. No interested person shall make or knowingly cause to be made to the arbitrator an unauthorized ex parte communication relevant to the merits of the proceeding, unless the parties agree otherwise. If a communication is made in violation of this subsection, the arbitrator shall ensure that a memorandum of the communication is prepared and made a part of the record, and that an opportunity for rebuttal is allowed. Upon receipt of a communication made in violation of this subsection, the arbitrator may, to the extent consistent with the interests of justice and the policies underlying this subchapter, require the offending party to show cause why the claim of such party should not be resolved against such party as a result of the improper conduct.                         

(e) The arbitrator shall make an award within 30 days after the close of the hearing, or the date of the filing of any briefs authorized by the arbitrator, whichever date is later, unless the parties agree to some other time limit. 

§ 502.409 

(a)(1) The award in an arbitration proceeding under this subchapter shall include a brief, informal discussion of the factual and legal basis for the award, but formal findings of fact or conclusions of law shall not be required. 

(2) Exceptions to or an appeal of an arbitrator's decision may not be filed with the Commission. 

(b) An award entered in an arbitration proceeding may not serve as an estoppel in any other proceeding for any issue that was resolved in the proceeding. Such an award also may not be used as precedent or otherwise be considered in any factually unrelated proceeding. 

      ( print page 27927)    
§ 502.410 

(a) The provisions of § 502.21 apply to representation of parties in dispute resolution proceedings, as do the provisions of § 502.27 regarding representation of parties by nonattorneys. 

(b) A neutral in a dispute resolution proceeding may require participants to demonstrate authority to enter into a binding agreement reached by means of a dispute resolution proceeding. 

§ 502.411 

(a) Parties are encouraged to utilize mediation or other forms of alternative dispute resolution in all formal proceedings. The Commission also encourages those with disputes to pursue mediation in lieu of, or prior to, the initiation of a Commission proceeding. 

(b) Any party may request, at any time, that a mediator or other neutral be appointed to assist the parties in reaching a settlement. If such a request is made in a proceeding assigned to an Administrative Law Judge, the provisions of § 502.91 apply. For all other matters, alternative dispute resolution services may be requested directly from the Commission's Alternative Dispute Resolution Specialist, who may serve as the neutral if the parties agree or who will arrange for the appointment of a neutral acceptable to all parties. 

(c) The neutral shall convene and conduct mediation or other appropriate dispute resolution proceedings with the parties. 

(d) Ex-parte Communications. Except with respect to arbitration, the provisions of 502.11 do not apply to dispute resolution proceedings, and mediators are expressly authorized to conduct private sessions with parties. 

By the Commission. 

Bryant L. VanBrakle, 

Secretary.

[FR Doc. 01-12500 Filed 5-18-01; 8:45 am] 

BILLING CODE 6730-01-P