Federal Register / Vol. 66, No. 98 / Monday, May 21, 2001 / Proposed Rules 27921

DATES: Any comments on this proposal

must arrive by June 20, 2001.

ADDRESSES: Mail comments to Andrew

Steckel, Rulemaking Office Chief (AIR–

4), U.S. Environmental Protection

Agency, Region IX, 75 Hawthorne

Street, San Francisco, CA 94105.

You may inspect copies of the

submitted rule and EPA’s technical

support documents (TSDs) at our Region

IX office during normal business hours.

You may also see copies of the

submitted rule at the following

locations:

Environmental Protection Agency, Air

Docket (6102), Ariel Rios Building,

1200 Pennsylvania Avenue, NW.,

Washington, DC 20460.

Arizona Department of Environmental

Quality, 3033 North Central Avenue,

Phoenix, AZ 85012.

FOR FURTHER INFORMATION CONTACT: Al

Petersen, Rulemaking Office (AIR–4),

Air Division, U.S. Environmental

Protection Agency, Region IX, 75

Hawthorne Street, San Francisco, CA

94105, (415) 744–1135.

SUPPLEMENTARY INFORMATION: This

proposal addresses the recisions of

defunct SIP rules from Coconino

County, Mohave County, and Yuma

County. In the Rules and Regulations

section of this Federal Register, we are

approving the recision of these rules in

a direct final action without prior

proposal because we believe this SIP

revision is not controversial. If we

receive adverse comments, however, we

will publish a timely withdrawal of the

direct final rule and address the

comments in subsequent action based

on this proposed rule. We do not plan

to open a second comment period, so

anyone interested in commenting

should do so at this time. If we do not

receive adverse comments, no further

activity is planned. For further

information, please see the direct final

action.

Dated: September 13, 2000.

Keith A. Takata,

Acting Regional Administrator, Region IX.

[Editorial note: This document was

received at the Office of the Federal Register

on May 15, 2001.]

[FR Doc. 01–12573 Filed 5–18–01; 8:45 am]

BILLING CODE 6560–50–P

ENVIRONMENTAL PROTECTION

AGENCY

40 CFR Part 52

[PA157–4112b; FRL–6981–6]

Approval and Promulgation of Air

Quality Implementation Plans;

Commonwealth of Pennsylvania;

Approval of Revisions to Stage II

Vapor Recovery Regulations for

Southwest Pennsylvania

AGENCY: Environmental Protection

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: EPA is proposing to approve

State Implementation Plan (SIP)

revisions submitted by the Pennsylvania

Department of Environmental Protection

(PADEP). This action proposes to

approve PADEP’s revised rules for the

implementation of the control of volatile

organic compounds (VOCs) from

gasoline dispensing facilities (Stage II)

in the Pittsburgh-Beaver Valley ozone

nonattainment area. In the Final Rules

section of this Federal Register, EPA is

approving the State’s SIP submittal as a

direct final rule without prior proposal

because the Agency views this as a

noncontroversial submittal and

anticipates no adverse comments. A

more detailed description of the state

submittal and EPA’s evaluation are

included in a Technical Support

Document (TSD) prepared in support of

this rulemaking action. A copy of the

TSD is available, upon request, from the

EPA Regional Office listed in the

ADDRESSES section of this document. If

no adverse comments are received in

response to this action, no further

activity is contemplated. If EPA receives

adverse comments, the direct final rule

will be withdrawn and all public

comments received will be addressed in

a subsequent final rule based on this

proposed rule. EPA will not institute a

second comment period. Any parties

interested in commenting on this action

should do so at this time.

DATES: Comments must be received in

writing by June 20, 2001.

ADDRESSES: Written comments should

be addressed to David L. Arnold, Chief,

Air Quality Planning and Information

Services Branch, 3AP21, U.S.

Environmental Protection Agency,

Region III, 1650 Arch Street,

Philadelphia, Pennsylvania 19103.

Copies of the documents relevant to this

action are available for public

inspection during normal business

hours at the Air Protection Division,

U.S. Environmental Protection Agency,

Region III, 1650 Arch Street,

Philadelphia, Pennsylvania 19103; and

the Pennsylvania Department of

Environmental Resources Bureau of Air

Quality Control, P.O. Box 8468, 400

Market Street, Harrisburg, Pennsylvania

17105.

FOR FURTHER INFORMATION CONTACT:

Ellen Wentworth, (215) 814–2034, at the

EPA Region III address above, or by email at wentworth.ellen@epa.gov

SUPPLEMENTARY INFORMATION: For

further information, please see the

information provided in the direct final

action, with the same title, that is

located in the ‘‘Rules and Regulations’’

section of this Federal Register

publication.

Dated: May 1, 2001.

William C. Early,

Acting Regional Administrator, Region III.

[FR Doc. 01–12575 Filed 5–18–01; 8:45 am]

BILLING CODE 6560–50–P

FEDERAL MARITIME COMMISSION

46 CFR Part 502

[Docket No. 01–05]

Alternative Dispute Resolution

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.

27922 Federal Register / Vol. 66, No. 98 / Monday, May 21, 2001 / Proposed Rules

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 goaloriented. 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

Federal Register / Vol. 66, No. 98 / Monday, May 21, 2001 / Proposed Rules 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 Proceedings.

* * * * *

(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 Complaints and fee.

* * * * *

(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

27924 Federal Register / Vol. 66, No. 98 / Monday, May 21, 2001 / Proposed Rules

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 Opportunity for informal

settlement.

* * * * *

(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 Prehearing conference.

* * * * *

(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 Statement of policy.

* * * * *

(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

Sec.

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 Policy.

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 Definitions.

(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;

Federal Register / Vol. 66, No. 98 / Monday, May 21, 2001 / Proposed Rules 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 General authority.

(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 Neutrals.

(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 Confidentiality.

(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

27926 Federal Register / Vol. 66, No. 98 / Monday, May 21, 2001 / Proposed Rules

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 Arbitration.

(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 Authority of the arbitrator.

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 Conduct of arbitration

proceedings.

(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 Arbitration awards.

(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.

Federal Register / Vol. 66, No. 98 / Monday, May 21, 2001 / Proposed Rules 27927

§ 502.410 Representation of parties.

(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 Mediation and other alternative

means of dispute resolution.

(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

FEDERAL COMMUNICATIONS

COMMISSION

47 CFR Part 61

[CC Docket No. 96–262; FCC 01–146]

Access Charge Reform; Reform of

Access Charges Imposed by

Competitive Local Exchange Carriers

AGENCY: Federal Communications

Commission.

ACTION: Proposed rule.

SUMMARY: In this document, the

Commission seeks comment on whether

tariffed competitive LEC-provided

access service for toll free, or ‘‘8YY,’’

numbers should be benchmarked to a

different figure than the Commission

has adopted for CLEC tariffed switched

access traffic generally.

DATES: Comments are due by June 20,

2001. Reply comments are due by July

20, 2001. Written comments by the

public on the proposed and/or modified

information collections discussed in

this Further Notice of Proposed

Rulemaking are due by June 20, 2001.

Written comments must be submitted by

the Office of Management and Budget

(OMB) on the proposed and/or modified

information collections by July 20, 2001.

ADDRESSES: All filings must be sent to

the Commission’s Secretary, Magalie

Roman Salas, Office of the Secretary,

Federal Communications Commission,

445 12th Street, SW., Washington, DC

20554. In addition to filing comments

with the Secretary, a copy of any

comments on the information

collection(s) contained herein should be

submitted to Judy Boley, Federal

Communications Commission, Room 1–

C804, 445 12th Street, SW., Washington,

DC 20554, or via the Internet to

jboley@fcc.gov and to Edward C.

Springer, OMB Desk Officer, 10236

NEOB, 725 17th Street, NW.,

Washington, DC 20503, or via the

Internet to vhuth@omb.eop.gov. Parties

should also send one paper copy of their

filings to Jane Jackson, Common Carrier

Bureau, Federal Communications

Commission, 445 Twelfth Street, SW.,

Room 5–A225, Washington, DC 20554.

In addition, commenters must send

diskette copies to the Commission’s

copy contractor, International

Transcription Services, Inc., 1231 20th

Street, NW., Washington, DC 20037.

FOR FURTHER INFORMATION CONTACT:

Jeffrey H. Dygert, Common Carrier

Bureau, (202) 418–1500.

SUPPLEMENTARY INFORMATION: This is a

summary of the Commission’s Further

Notice of Proposed Rulemaking

(FNPRM) in CC Docket No. 96–262

released on April 27, 2001. The full text

of this document is available for public

inspection during regular business

hours in the FCC Reference Center,

Room CY–A257, 445 Twelfth Street,

SW., Washington, DC, 20554.

This FNPRM contains proposed

information collection(s) subject to the

Paperwork Reduction Act of 1995

(PRA). It has been submitted to the

Office of Management and Budget

(OMB) for review under the PRA. OMB,

the general public, and other Federal

agencies are invited to comment on the

proposed information collections

contained in this proceeding.

Paperwork Reduction Act

The FNPRM contains a proposed

information collection. The

Commission, as part of its continuing

effort to reduce paperwork burdens,

invites the general public and OMB to

comment on the information

collection(s) contained in this FNPRM,

as required by the PRA, Public Law

104–13. Public and agency comments

on the proposed and/or modified

information collections discussed in

this Notice of Proposed Rulemaking are

due by June 20, 2001. Written comments

must be submitted by the Office of

Management and Budget (OMB) on the

proposed and/or modified information

collections by July 20, 2001.

Comments should address: (a)

Whether the proposed collection of

information is necessary for the proper

performance of the functions of the

Commission, including whether the

information shall have practical utility;

(b) the accuracy of the Commission’s

burden estimates; (c) ways to enhance

the quality, utility, and clarity of the

information collected; and (d) ways to

minimize the burden of the collection of

information on the respondents,

including the use of automated

collection techniques or other forms of

information technology.

Synopsis of FNPRM

I. Further Notice of Proposed

Rulemaking

1. Shortly before we issued the final

rule that is published elsewhere in this

issue, AT&T asserted, for the first time

in this proceeding, that CLEC

originating 8YY, toll-free traffic should

be subject to a different benchmark

scheme than other categories of

switched access traffic. AT&T argues

that the benchmark for CLEC 8YY traffic

should immediately move to the access

rate of the competing ILEC and that

CLECs should be mandatorily detariffed

above that point. In support of this

position, AT&T asserts that certain

CLECs with higher access charges

attempt to obtain as customers end users

that typically generate high volumes of

8YY traffic, such as hotels and

universities. AT&T further asserts that

some CLECs then ‘‘install limited, highcapacity facilities designed only to

handle 8YY traffic’’ and ‘‘share their

access revenues with the customers

generating the [8YY] traffic’’ through

agreements that provide for payments to

the end user based on the level of 8YY