[Federal Register Volume 64, Number 217 (Wednesday, November 10, 1999)]
[Proposed Rules]
[Pages 61236-61239]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-29322]


=======================================================================
-----------------------------------------------------------------------

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

29 CFR Part 2700


Procedural Rules

AGENCY: Federal Mine Safety and Health Review Commission.

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The Federal Mine Safety and Health Review Commission proposes 
to amend its procedural rules by adding a new rule setting forth 
settlement procedures which are intended to facilitate and promote the 
pre-hearing settlement of contested cases that come before the 
Commission. The new procedures would be instituted as a pilot program 
for a two-year trial period.

DATES: Comments must be received by December 10, 1999.

ADDRESSES: All comments concerning these proposed rules should be 
addressed to Norman M. Gleichman, General Counsel, Federal Mine Safety 
and Health Review Commission, 1730 K Street, NW, 6th Floor, Washington, 
DC 20006. For the convenience of persons who will be reviewing the 
comments, it is requested that commenters provide an original and three 
copies of their comments.

FOR FURTHER INFORMATION CONTACT: Norman M. Gleichman, General Counsel, 
202-653-5610 (202-653-2673 for TDD relay). These are not toll-free 
numbers.

SUPPLEMENTARY INFORMATION:

I. Background

    The Commission's Procedural Rules, 29 CFR Part 2700, are currently 
silent regarding procedures to be utilized by administrative law judges 
(``ALJs'') to facilitate the settlement of contested cases. The 
procedures used in a given case to foster pre-hearing settlement of

[[Page 61237]]

disputes have been determined informally by the individual ALJ assigned 
to the case. Notwithstanding the use of informal settlement techniques, 
some cases continue to the hearing stage even though settlement may be 
achievable.
    The proposed rule is intended to provide a structured and formal 
system which will enhance the possibility of settlement by having the 
parties meet and confer, at a preliminary stage in the proceedings, 
with a judge who has full authority both to guide and assist the 
parties to a complete or partial resolution of the case and to assure 
the parties the confidentiality which is a necessary component of any 
successful settlement procedure. The Commission anticipates that 
providing the parties with this alternative method of resolving their 
disputes will reduce the number of cases that go to hearing. In 
conjunction with the adoption of this rule, the Commission intends to 
give ALJs specialized training in dispute resolution techniques.
    The proposed rule is consonant with the goals set by Congress in 
the Alternative Dispute Resolution Act of 1996, 5 U.S.C. 571 et seq. 
(``ADRA''). In the ADRA, Congress found that, while administrative 
proceedings were intended to provide a prompt and inexpensive means of 
resolving disputes, they ``have become increasingly formal, costly, and 
lengthy, resulting in unnecessary expenditures of time and in a 
decreased likelihood of achieving consensual resolution of disputes.'' 
5 U.S.C. 571 note. In response to this development, Congress directed 
each federal agency to ``examine alternative means of resolving 
disputes in connection with * * * formal and informal adjudications.* * 
*'' Id.
    The proposed settlement provision is set forth here as a new 
Sec. 2700.85. The Commission intends to implement the rule for a two-
year trial period. Settlement proceedings commenced pursuant to 
Sec. 2700.85 shall continue to be processed in accordance with this 
rule even if it expires prior to the completion of such proceedings.

II. Analysis of the Regulation

    In Sec. 2700.85(a), the Commission states that its policy is to 
permit and encourage settlements at any stage of proceedings. Section 
2700.85(b) would make the settlement procedure applicable to all 
proceedings except disciplinary proceedings under current Sec. 2700.80. 
Definitions of the terms ``Settlement Judge,'' ``settlement 
proceeding'' and ``partial settlement'' are proposed in 
Sec. 2700.85(c).
    Under proposed Sec. 2700.85(d)(1), the Settlement Judge may be 
appointed by the Chief ALJ on his own motion or on the motion of a 
party. Paragraph (d)(2) specifies that the Settlement Judge cannot be 
the ALJ ultimately assigned to hear and decide the case.
    Section 2700.85(e) establishes a 30-day time limit for settlement 
negotiations, with an extension not to exceed 20 days upon application 
to and approval by the Chief ALJ. A further extension could only be 
approved by the Chief ALJ in extraordinary circumstances.
    The powers and duties of Settlement Judges are set forth in 
Sec. 2700.85(f). Of particular note is the Settlement Judge's authority 
to confer separately with any party or representative. Currently, due 
to restrictions on ex parte communications contained in Sec. 2700.82, 
Commission ALJs may not utilize this basic tool of mediation.
    Under proposed Sec. 2700.85(g)(1), it is presumed that settlement 
conferences will take place by conference telephone call. However, 
face-to-face conferences are also contemplated under one or more of 
four enumerated circumstances set forth in paragraph (g)(2). Under 
paragraph (g)(3), conferences involving travel by the Settlement Judge 
require approval by the Chief ALJ. Paragraph (g)(4) permits the 
Settlement Judge to recommend attendance at the settlement conference 
of representatives expected to try the case, parties, or other agents 
having full settlement authority.
    In order to encourage the parties to engage in frank and meaningful 
settlement negotiations, the Commission proposes a broad grant of 
confidentiality in Sec. 2700.85(h). Paragraph (h)(1) protects from 
subsequent disclosure evidence of conduct or statements and documents 
revealed during settlement negotiations, except with consent of the 
parties. Further, this paragraph prohibits the Settlement Judge from 
divulging statements or information presented during private 
discussions except with consent of the party to such discussions. The 
confidentiality provision also specifies that evidence of conduct or 
statements made in settlement negotiations, notes prepared or 
maintained by the Settlement Judge, and communications between the 
Settlement Judge and the Chief ALJ are not admissible in any subsequent 
hearing or other proceeding except by stipulation of the parties. In 
addition, paragraph (h)(1) precludes the Settlement Judge from 
discussing the merits of the case with someone who is not a party or 
representative, and from being called as a witness.
    While seeking to protect the confidentiality of settlement 
negotiations in order to enhance their effectiveness, the Commission is 
also cognizant of the need to prevent parties from attempting to use 
the settlement procedure as a means to shield otherwise discoverable or 
admissible evidence. Accordingly, in paragraph (h)(2), the Commission 
proposes language that permits the use in litigation of documents 
disclosed in the settlement process so long as they are obtained 
through appropriate discovery or subpoena. Paragraph (h)(2) clarifies 
that discovery or admission of evidence is not barred solely by virtue 
of its presentation in the course of a settlement proceeding. This 
paragraph also permits disclosure of information necessary to document 
a full or partial settlement agreement.
    Consistent with the broad confidentiality and nondisclosure 
provisions, Sec. 2700.85(i) provides that no material protected from 
disclosure, and no material in the possession of the Settlement Judge 
related to the settlement proceeding, will be entered in the official 
case file, and that such material therefore will not be available for 
public inspection. The only exception to this requirement is that 
decisions approving full or partial settlements, notices of termination 
of settlement proceedings, and stipulations of law or fact resulting 
from settlement negotiations will be part of the official case record.
    In Sec. 2700.85(j), the Commission would require the Settlement 
Judge to approve or deny in writing full or partial settlements. This 
requirement is consistent with that applicable to ALJs under present 
Sec. 2700.69.
    Under proposed Sec. 2700.85(k), settlement proceedings terminate 
upon the Settlement Judge's issuance of a decision approving a full 
settlement, or by written notification to the Chief ALJ that no full 
settlement was reached. Paragraph (k)(2) provides that the Chief ALJ, 
upon notification that a full settlement was not obtained, must 
promptly assign the case to an administrative law judge other than the 
Settlement Judge for further proceedings.
    Decisions concerning submission of a case to settlement procedures, 
assignment of a Settlement Judge, requests for enlargement of time for 
negotiations, and termination of settlement proceedings are not subject 
to rehearing or appellate review under proposed Sec. 2700.85(l).
    Consistent with the Commission's desire to enable Settlement Judges 
to employ the traditional techniques of

[[Page 61238]]

mediation, and with proposed Secs. 2700.49(f)(4) and (f)(5), the 
Commission proposes in Sec. 2700.85(m) to exclude settlement procedures 
under the proposed rule from application of current Sec. 2700.82, 
governing ex parte communications, to permit Settlement Judges to 
privately confer with a party or its representative during settlement 
proceedings.

III. Matters of Regulatory Procedure

    The Commission has determined that these rules are not subject to 
Office of Management and Budget review under Executive Order 12866.
    The Commission has determined under the Regulatory Flexibility Act 
(5 U.S.C. 601-612) that these rules, if adopted, would not have a 
significant economic impact on a substantial number of small entities. 
Therefore, a Regulatory Flexibility Statement and Analysis has not been 
prepared.
    The Commission has determined that the Paperwork Reduction Act (44 
U.S.C. 3501 et seq.) does not apply because these rules do not contain 
any information collection requirements that require the approval of 
the Office of Management and Budget.

List of Subjects in 29 CFR Part 2700

    Administrative practice and procedure, Ex parte communications, 
Hearing and appeal procedures, Lawyers.

    For the reasons set out in the preamble, it is proposed to amend 29 
CFR part 2700 as follows:

PART 2700--PROCEDURAL RULES

    1. The authority citation for part 2700 is revised to read as 
follows:

    Authority: 5 U.S.C. 571 note, 572 and 574; 30 U.S.C. 815, 820 
and 823.

    2. Part 2700 is amended by adding a new Sec. 2700.85, to read as 
follows:


Sec. 2700.85  Settlement procedures.

    (a) Policy. The Commission permits and encourages settlements of 
disputes at any stage of proceedings.
    (b) Applicability. This section applies to any proceeding under 
these rules except disciplinary proceedings under Sec. 2700.80.
    (c) Definitions. For purposes of this section:
    (1) Settlement Judge means the Judge (including, where applicable, 
the Chief Administrative Law Judge) appointed by the Chief Judge to 
conduct settlement negotiations under this section.
    (2) Settlement proceeding means any proceeding under this section.
    (3) Partial settlement means the complete disposition of some but 
not all of the issues in the case.
    (d) Appointment. (1) The Chief Judge may, on the motion of any 
party or on his own initiative, appoint himself or another Commission 
administrative law judge as Settlement Judge in any proceeding covered 
by this section.
    (2) The Settlement Judge shall not be the Judge assigned to hear 
and decide the case.
    (e) Time period for negotiations. Settlement negotiations under 
this section shall be for a period not to exceed 30 days. Upon request 
of the Settlement Judge and submission by the Settlement Judge to the 
Chief Judge of an oral or written status report, the Chief Judge may 
grant an enlargement of time of the settlement period not exceeding 20 
days. The Chief Judge may grant a further enlargement of time only in 
extraordinary circumstances.
    (f) Powers and duties of Settlement Judges. (1) The Settlement 
Judge shall confer with the parties on any subjects with a view toward 
full or partial settlement of the case.
    (2) The Settlement Judge shall seek resolution of as many of the 
issues in the case as is feasible.
    (3) The Settlement Judge may suspend discovery and rule on motions 
related to discovery during the time of assignment.
    (4) The Settlement Judge may confer separately with any party or 
representative.
    (5) The Settlement Judge may suggest privately to each party or its 
representative what concessions should be considered, and assess 
privately with each party or representative the reasonableness of the 
party's case or settlement position.
    (g) Settlement conference and other communication. (1) In general 
it is expected that the Settlement Judge shall communicate with the 
parties by a conference telephone call.
    (2) A personal conference with the parties may be scheduled under 
one or more of the following circumstances:
    (i) It is possible for the Settlement Judge to schedule in one day 
three or more cases for conference at or near the same location;
    (ii) The offices of the representatives of the parties, as well as 
that of the Settlement Judge, are located in the same metropolitan 
area;
    (iii) A conference may be scheduled in a place and on a day that 
the Judge is scheduled to preside in other proceedings under this part;
    (iv) Any other suitable circumstances in which the Settlement Judge 
determines that a personal meeting is necessary for a resolution of 
substantial issues in a case and the holding of a conference represents 
the prudent use of resources.
    (3) All personal conferences under Sec. 2700.85(g)(2) that require 
travel by the Settlement Judge must be approved by the Chief Judge.
    (4) The Settlement Judge may recommend that the representative who 
is expected to try the case for each party be present and, without 
regard to the scope of the representative's powers, may also recommend 
that the parties, or agents having full settlement authority, be 
present. The parties and their representatives are required to be 
completely candid with the Settlement Judge so that he may properly 
guide settlement discussions.
    (h) Confidentiality. (1) All statements made, and all information 
presented, during the course of proceedings under this section shall be 
regarded as confidential and shall not be divulged outside of these 
proceedings except with the consent of the parties. The Settlement 
Judge shall not divulge any statements or information presented during 
private negotiations with a party or his representative except with the 
consent of that party. No evidence of statements or conduct in 
proceedings under this section relating to compromise or offers to 
compromise, no notes or other material prepared by or maintained by the 
Settlement Judge, and no communications between the Settlement Judge 
and the Chief Judge, including any status report of the Settlement 
Judge under paragraph (e) of this section, will be admissible in any 
subsequent hearing or other proceeding except by stipulation of the 
parties. The Settlement Judge shall not discuss the merits of the case 
with any person except a party or its representative, nor appear as a 
witness in any hearing of the case.
    (2) Documents disclosed in the settlement process may not be used 
in litigation unless obtained through appropriate discovery or 
subpoena. Nothing in paragraph (h)(1) of this section prevents the 
discovery or admissibility of any evidence that is otherwise 
discoverable or admissible solely because the evidence was presented in 
the course of a settlement proceeding, or precludes disclosure of 
information necessary to document an agreement reached or order issued 
pursuant to a settlement proceeding.
    (i) Record of proceedings. (1) No material of any kind required to 
be held confidential under paragraph (h)(1) of this section shall be 
part of the official case record, nor shall any such material be open 
to public inspection, unless the

[[Page 61239]]

parties otherwise stipulate and the Settlement Judge approves.
    (2) The Settlement Judge shall file or cause to be filed in the 
official case record any decision approving full settlement of the 
case. Where a full settlement is not achieved, the Settlement Judge 
shall notify the Chief Judge in writing of the termination of 
proceedings under this section, have the notification filed in the 
official case record, and include with the notification, for filing in 
the official case record, any decision approving partial settlement or 
stipulation of law or fact resulting from settlement negotiations.
    (3) With the exception of a decision approving the terms of any 
full or partial settlement agreed to between the parties as set forth 
in paragraph (j) of this section, notification of the termination of 
settlement proceedings, or stipulations of law or fact agreed to by the 
parties, the Settlement Judge shall not file or cause to be filed in 
the official case record any material in his possession relating to 
these proceedings, including but not limited to communications with the 
Chief Judge, unless the parties otherwise stipulate and the Settlement 
Judge approves.
    (j) Settlement. Pursuant to the Mine Act, any full or partial 
settlement of a case that is the subject of a settlement proceeding 
shall be submitted to the Settlement Judge for written approval.
    (k) Termination of settlement proceeding. (1) The settlement 
proceedings shall terminate upon the issuance of a decision approving a 
full settlement or written notification to the Chief Judge by the 
Settlement Judge that no full settlement has been reached.
    (2) Upon notification to the Chief Judge by the Settlement Judge 
that negotiations have concluded without a full settlement, the Chief 
Judge shall promptly assign the case to a Judge other than the 
Settlement Judge for appropriate proceedings under the Commission's 
procedural rules.
    (l) Non-reviewability. Notwithstanding the provisions of 
Sec. 2700.76 governing interlocutory review, any decision concerning 
the submission of a case to settlement procedures, any decision 
concerning the assignment of a Settlement Judge or a particular Judge, 
any decision to request or grant an enlargement of time under paragraph 
(e) of this section, and any decision by the Settlement Judge to 
terminate proceedings under this section is not subject to review by, 
appeal to, or rehearing by any Judge, the Chief Judge, or the 
Commission.
    (m) Ex-parte communications. The provisions of Sec. 2700.82 shall 
not apply to settlement proceedings under this section.

    Dated: November 2, 1999.
Mary Lu Jordan,
Chairman.
[FR Doc. 99-29322 Filed 11-9-99; 8:45 am]
BILLING CODE 6735-01-P