[Federal Register Volume 59, Number 112 (Monday, June 13, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-14288]


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[Federal Register: June 13, 1994]


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DEPARTMENT OF THE INTERIOR

Office of the Secretary
RIN 1094-AA45

 

Use of Alternative Dispute Resolution (ADR)

AGENCY: Office of the Secretary.

ACTION: Notice of interim ADR policy and opportunity for comment.

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SUMMARY: The Department of the Interior (Department) has developed this 
two-year interim policy to implement the requirements of the 
Administrative Dispute Resolution Act (ADR Act), Public Law No. 101-
552. This interim policy also addresses the Negotiated Rulemaking Act, 
Public Law No. 101-648. The Department is adopting this interim policy 
to allow time to acquire data on the applicability of ADR techniques to 
selected program disputes. During this interim period, the Department 
through its bureaus and offices will implement ADR pilot programs and 
other program initiatives in an effort to establish a baseline of 
experience in the practical uses of ADR. At the conclusion of this 
interim phase, the Department will assess the results of the ADR 
initiatives in conjunction with both external and internal comments 
received, develop a proposed final policy, allow for public comment, 
and publish a final ADR policy in the Federal Register.
    The Department seeks comments from the public, including, among 
others, those persons whose activities the Department regulates, on any 
aspect of this interim policy and its implementation, and those persons 
who have engaged in or may in the future engage in ADR processes with 
the Department. At the end of the 60 day comment period the Department 
will consider issues raised by interested persons and may modify the 
interim policy based on public comment.

DATES: Comments must be received on or before August 12, 1994.

ADDRESSES: Written comments should be mailed or delivered to Philip G. 
Kiko, Deputy Director, Office of Hearings and Appeals (OHA), U.S. 
Department of the Interior, 4015 Wilson Boulevard, Arlington, Virginia 
22203.

FOR FURTHER INFORMATION CONTACT: Philip G. Kiko, Deputy Director and 
the Alternate Dispute Resolution Specialist, OHA (703) 235-3810.

SUPPLEMENTARY INFORMATION:

I. Administrative Dispute Resolution Act

    The Administrative Dispute Resolution Act (ADR Act), Public Law No. 
101-552, 5 U.S.C. 581-583, enacted November 15, 1990, authorizes and 
encourages federal agencies to employ consensual methods of dispute 
resolution as alternatives to litigation. Under the ADR Act, a federal 
agency is required: (1) To designate a senior official as a dispute 
resolution specialist; (2) to establish training programs in the use of 
dispute resolution methods; (3) to adopt a policy on the use of ADR 
techniques; and (4) to review the standard language in agency 
contracts, grants or other agreements, to determine whether to include 
a provision on ADR. Federal agencies are also required to consult with 
the Administrative Conference of the United States (ACUS) and the 
Federal Mediation and Conciliation Service (FMCS) on the development of 
their ADR policies.
    Additionally, section 3(a) of the ADA Act requires the Department 
to adopt a formal policy as to how it intends to implement the ADR Act 
in each of the following areas: (a) Formal and informal adjudications; 
(b) rulemakings; (c) enforcement actions; (d) issuing and revoking 
licenses or permits; (e) contract administration; (f) litigation 
brought by or against the Department; and (g) other departmental 
action.
    Congress enacted the ADR Act to reduce the time, cost, 
inefficiencies and contentiousness that are too often associated with 
litigation and other adversarial dispute mechanisms. Moreover, 
experience at other federal agencies shows that ADR can help achieve 
mutually acceptable solutions to disputes more effectively than either 
litigation or administrative adjudication. In fact, Vice President Gore 
recommended in September 1993 that federal agencies ``increase the use 
of alternative means of dispute resolution.'' National Performance 
Review, Recommendation REG06 (September 7, 1993).
    While ADR techniques have proven to be useful in resolving serious 
conflicts, the day-to-day operations of the Department's bureaus should 
provide conflict avoidance methods, where possible. Moreover, the ADR 
Act, 5 U.S.C. 582(b), specifically cautions that:
    An agency shall 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 agency 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 agency's fulfilling that requirement.

    The decision whether to use ADR, however, remains within each 
federal agency's discretion, and participation in ADR processes is by 
mutual consent of the disputants.
    The ADR Act fosters the use of ADR by ensuring appropriate 
protection of parties' and neutrals' communication. The ADR Act, 
however, is not a statute exempting disclosure under the Freedom of 
Information Act (FOIA). To establish a baseline of understanding, 
concerned parties should establish confidentiality guidelines 
consistent with FOIA requirements before entering into negotiations.
    Within the limitations set forth in the ADR Act, and elsewhere, the 
Department plans to explore, over the next two years, whether and in 
which contexts the use of ADR facilitates fairer, faster, or more 
rational resolutions of disputes than present dispute resolution 
methods provide. Additionally, the Department will conduct an 
evaluation of the interim policy. On the basis of this evaluation, the 
Department will consider modifying any of its current procedures or 
rules, as appropriate, to allow for greater use of ADR.

II. Negotiated Rulemaking Act

    In enacting the Negotiated Rulemaking Act, Public Law No. 101-648, 
Congress indicated its concern that traditional notice and comment 
rulemaking procedures may discourage agreement among the potentially 
affected parties and the Federal Government. Congress addressed this 
concern by purposefully designing the Negotiated Rulemaking Act's 
procedures to facilitate the cooperative development of regulations by 
interested persons and agencies. Moreover, Vice President Gore's report 
recently recommended improving agencies' regulatory systems by 
``[e]ncourag[ing] agencies to use negotiated rulemaking more frequently 
in developing new rules.'' National Performance Review, Recommendation 
REG03.
    Negotiated Rulemaking (Reg-Neg) does not replace the traditional 
notice and comment rulemaking. Rather, Reg-Neg supplements the more 
traditional process by developing consensus around the candidate 
proposed rule before an agency publishes it in the Federal Register. 
Combining early consensus-building and information-gathering with an 
opportunity for broad public consideration, the Reg-Neg process meets 
the prescription of the Administrative Procedure Act, 5 U.S.C. 551 et 
seq., and can facilitate more effective regulatory development and 
regulations. Moreover, on September 30, 1993, President Clinton issued 
a Memorandum in conjunction with the issuance of Executive Order 12866 
on Regulatory Planning and Review. The Memorandum required each 
department to identify to the Office of Information and Regulatory 
Affairs at least one rulemaking within the upcoming year to be 
developed through negotiated rulemaking or to explain why negotiated 
rulemaking would not be feasible, 58 FR 52391 (Oct. 7, 1993).
    Decisionmakers should view Reg-Neg as one of a variety of 
information-gathering and consensus-building or consultative processes 
used to achieve effective, efficient, rational, and fair agency policy. 
Although the Negotiated Rulemaking Act does not address less formal 
decisionmaking processes, including, among others, policy roundtables 
and public meetings, such nonadversarial processes may help gather 
information to assist the Department in policy development.
    Participation in informal regulatory development processes can 
require significant commitment of resources on the part of all 
participants, including federal agencies. The Department's experience, 
however, has shown that consensus-building techniques can result in 
better policy, reduce the high rate of litigation, and lower the costs 
of program implementation for the Department's bureaus and the 
regulated community.

III. Interim Policy

A. Application of the Interim Policy

    The Department encourages the effective use of ADR and Reg-Neg to 
the fullest extent compatible with existing law, and the Department's 
resources and missions. Based on almost one hundred and fifty years of 
experience, the Department recognizes that the use of consensus-
building techniques and nonadversarial planning processes can increase 
the wisdom, efficiency, equity, and long-term stability of departmental 
decisions.
    The interim policy is intended to govern both the programmatic side 
of the Department's broad responsibility, as well as many of the human 
resources aspects. With regard to human resources, this interim ADR 
policy embraces the ADR policy of the Department's Office for Equal 
Opportunity. The use of ADR is expected to be very useful in matters 
involving equal employment opportunity. Workplace dispute issues 
outside the jurisdiction of actions governed by regulations issued by 
the Merit Systems Protection Board will also be governed by this 
policy. Where the use of ADR would impede effective supervisory action 
in routine matters of employee discipline or performance appraisal, 
supervisors may elect not to use ADR.

B. Purpose of the Interim Policy

    The Department has developed a two-year ADR interim policy in 
response to the requirements of the ADR Act. The policy encourages the 
Department's bureaus to identify disputes amenable to ADR and to use 
ADR, whenever practicable. After testing ADR methods in a variety of 
contexts, the Department, through the Interior Dispute Resolution 
Council, at the conclusion of the two-year interim phase, will assess 
the appropriateness of the use of ADR and determine which program areas 
could most benefit from the institutionalization of ADR processes. 
Existing bureau ADR efforts should continue as this final policy is 
developed.
    The Department's interim ADR policy is also designed to disseminate 
knowledge about ADR both within the Department and to those whom the 
Department serves, as well as to introduce new ADR initiatives and to 
provide guidelines for bureaus to apply in the implementation of ADR 
pilot programs. These initiatives will produce a baseline of experience 
that will be used in developing the Department's final ADR policy. 
Without the full commitment and cooperation of all involved in the two-
year interim phase, the Department will lose a valuable opportunity to 
learn what works, what does not, and how best to capture potential 
benefits from ADR use.

C. Implementation of Interim Policy

1. Role of the Department's Dispute Resolution Specialist
    Pursuant to the ADR Act, the Secretary appointed the Director, 
Office of Hearings and Appeals (OHA) to serve as the Department's 
Dispute Resolution Specialist (DRS). This high level, Department 
official was appointed as the DRS in order: (1) To facilitate intra-
departmental coordination and communication; (2) to ensure consistent, 
quality training; (3) to establish minimum qualifications for 
mediators, arbitrators, and certain departmental employees with ADR 
responsibilities; and (4) to reduce administrative redundancy. The DRS 
will maintain an ``open door'' policy, welcoming inquiries from and 
offering assistance to the bureaus and interested persons. During the 
period that the interim policy is being implemented, ongoing input from 
the public is encouraged. The DRS will also develop and make available 
a roster of neutrals who are trained in ADR and who would be available 
to participate in a dispute resolution proceeding. Despite this focal 
point for ADR activity, the Department's interim ADR policy is to 
encourage decentralized decisionmaking to the greatest extent possible.
2. Role of the Interior Department Resolution Council
    In order to keep the Department's bureaus informed during the 
implementation of the interim phase, the DRS shall, 30 days after 
publication of the Department interim policy, convene the Interior 
Dispute Resolution Council (IDRC). Composed of the Department's 
Assistant Secretaries, Solicitor and the Director of the Office of 
Regulatory Affairs (ORA), or their respective designees, and chaired by 
the DRS, the IDRC shall monitor and evaluated the Department's use of 
ADR and Reg-Neg and assist in intradepartmental policy and process 
coordination. The IDRC shall act as an information clearinghouse, 
recommend personnel training courses in ADR techniques and program 
design, and act as the liaison between the ACUS and FMCS.
    Additionally, the IDRC will consider the benefits of appointing a 
departmental ombudsman and the benefits of appointing an ombudsman for 
selected departmental bureaus. An ombudsman could serve the following 
functions: (1) To address specific categories of workplace disputes 
through the investigation of the circumstances giving rise to the 
disputes and based on their findings to recommend corrective actions, 
if appropriate; or (2) to investigate and propose the resolution, if 
appropriate, of citizen complaints against the Department, including 
recommendations for changes in agency structure or organization to 
better address or avoid persistent problems. The IDRC will submit a 
written report at the end of the Interim period on the use of an 
ombudsman.
3. Training in ADR
    The Department recognizes, consistent with the philosophy of the 
National Performance Review, that bureaus can best evaluate and develop 
specific ADR programs and initiatives to meet bureau needs. Therefore, 
each Bureau Head shall appoint a Bureau Dispute Resolution Specialist 
(BDRS). The BDRS shall receive training recommended by the DRS in ADR 
consensus-building techniques, conflict resolution, and program design.
    The DRS shall recommend appropriate BDRS training, such training to 
be completed no later than 60 days following issuance of the interim 
policy. Additionally, the DRS shall provide ADR training opportunities 
for selected groups of senior managers of the Department, whose job 
responsibilities include determining or influencing how disputes will 
be managed. The DRS will also identify opportunities for advanced 
training in facilitation and mediation for judges and attorneys within 
OHA, as appropriate.
4. Development of Bureau Alternative Dispute Resolution Plans
    The BDRS shall develop and submit the Bureau's Alternate Dispute 
Resolution Plan (ADRP) through the Bureau Head to the appropriate 
Assistant Secretary no later than 60 days following the completion of 
training. The ADRP shall include at least one category of disputes 
amenable to ADR methods, and a discussion of how the bureau will 
implement ADR to address such disputes. Additionally, to facilitate the 
monitoring and evaluation of the bureau's initiative(s), the ADRP 
should address, among other topics, the (1) Goals; (2) objectives; (3) 
timetable; (4) implementation strategy; (5) monitoring criteria; and 
(6) evaluation methodology. It is permissible if two or more bureaus 
adopt the same plan or parts of a plan.
    In selecting appropriate ADR pilot initiatives, a bureau can focus, 
for example, on a particular category of dispute (e.g., contract 
cases), on a variety of disputes involving a particular organizational 
segment or region of the agency, or on a particular ADR process that 
would be applied in a variety of disputes across the bureau. In 
selecting a focus for an ADR pilot initiative, the Department 
encourages bureaus to consider using some of the disputes that are 
central to the Department's mission. While a bureau should not avoid 
identifying personnel and small contract disputes, for example, as 
candidates for a pilot initiative, a bureau should not focus 
exclusively on these areas so that the effectiveness of ADR for a 
bureau can be judged in a programmatic context.
    Some offices of the Department, such as the Office of the 
Solicitor, assist bureaus in carrying out their programs rather than 
conducting programs of their own. For the purposes of this policy, such 
offices should assist their client bureaus in implementing ADR in a 
programmatic context. Nonetheless, such offices should develop an ADRP 
for internal, human resource management purposes.
    Consistent with the many activities and functions of the Department 
and the Federal Acquisition Regulations' (FAR) recognition of the 
usefulness of ADR in government contracts, each BDRS, or appointed 
designees, should review categories of all proposed new and renewal 
contracts, agreements, permits, memoranda of understanding, and other 
documents, to determine whether to include ADR provisions. Moreover, 
the Department encourages the use of ADR in contract disputes prior to 
these disputes reaching the Interior Board of Contract Appeals. To 
avoid duplication of effort by bureau personnel, the Office of the 
Solicitor, working with the Department's Senior Procurement official, 
will develop standardized ADR-related clauses that bureaus can use in 
contracts and other documents.
    The Department expects, as well, that those bureaus with 
comparatively more dispute resolution experience will, on a voluntary 
basis, assist bureaus less familiar with dispute resolution in the 
development of the ADRP. The Department expects, as well, that inter-
bureau initiatives such as ``one stop permitting,'' for example, be 
coordinated with the BDRSs. Each BDRS and others involved with the 
implementation of the interim policy are encouraged to consult with 
other federal agencies, and others in the dispute resolution field in 
the development of their ADR initiatives. The DRS is available to 
provide the names of contact persons within various federal agencies 
who have effectively utilized ADR methods in resolving disputes.
    Judges within all boards and divisions of OHA will be encouraged to 
utilize, where appropriate, ADR methods, including, among others, the 
use of settlement judges, minitrials, and the referral of litigants to 
mediation or arbitration in advance of a judge's consideration of a 
case on the merits. OHA will develop an internal policy for the 
appointment of settlement judges and will refer litigants to a list of 
approved mediators and arbitrators.
    The appropriate Assistant Secretary or designee shall, upon receipt 
of a bureau's ADRP, review and approve the ADRP in consultation with 
the IDRC. Within 30 days after approval of an ADRP, a bureau shall 
publish its ADRP in the Federal Register or otherwise make the ADRP 
accessible to interested persons.

D. Monitoring and Evaluation

    Each BDRS shall monitor the implementation of his or her bureau's 
dispute resolution initiatives on an ongoing basis, using the criteria 
developed in their ADRP. Each BDRS shall submit to the IDRC, through 
the proper Bureau Head and Assistant Secretary, every 180 days, an 
evaluation of the bureau's progress toward meeting the goals, 
objectives, and timetables on the basis of the methodology outlined in 
the ADRP. The evaluation should also discuss any unanticipated issues 
that each bureau may have encountered and how those issues have been or 
are being resolved.
    The BDRSs in conjunction with the IDRC shall, at the conclusion of 
the two-year interim phase, catalogue and evaluate the bureaus' 
respective initiatives and experiences under their ADRPs in a report to 
the Secretary. This evaluation, coordinated by the DRS, as chair of the 
IDRC, will focus on the categories of dispute and types ADR methods 
that were most helpful in achieving resolution of disputes.
    Moreover, because the usefulness of ADR to the Department is 
dependent on the processes' ability to facilitate rational, fair, 
efficient, and stable solutions among the Department's bureaus, the 
regulated community and the public, evaluation of the interim policy 
should receive the benefit of public public comment and participation.
    A concluding section of the evaluation should explain how dispute 
resolution will be integrated on a permanent basis into each bureau's 
program offices. This process of review, evaluation, and modification 
will allow each bureau to systematically and regularly improve its ADR 
programs.

E. Development of Final ADR Policy

    The IDRC in conjunction with the BDRSs, and with the benefit of 
public comment and participation, will develop a permanent Department 
ADR policy on the basis of the Department's two-year interim policy 
experience. The DRS will be responsible for the coordination of the 
development of the Department's final policy, and shall ensure issuance 
of that policy no later than 90 days after the conclusion of the 
interim policy. During the time between conclusion of the interim 
policy and issuance of the final policy, the interim policy shall 
remain in effect, as appropriate.

F. Negotiated Rulemaking

    Pursuant to Executive Order 12866 and the Presidential Memorandum 
on Negotiated Rulemaking, issued September 30, 1993, the Department 
will use, where appropriate, negotiated rulemaking or other consensus-
building techniques to develop rules that are fair, technically 
accurate, and clear. Each bureau will evaluate, prior to drafting or 
amending any regulation, whether negotiated rulemaking is appropriate 
for developing or amending that regulation and will explain, on the 
Regulatory Alert Form submitted to the ORA, the basis for determining 
whether or not the regulation will be developed or amended using 
negotiated rulemaking.
    In explaining whether negotiated rulemaking should be used for a 
particular rulemaking, each bureau should address at least the 
following:
    (1) Whether there exists a small and identifiable group of 
constituents (the ``parties'') with significant interests in the 
rulemaking, so that all reasonably foreseeable significant interests 
can be represented by individuals in the negotiation;
    (2) Whether the parties believe it to be in their best interest to 
enter into a negotiated rulemaking;
    (3) Whether the parties are willing and able to enter into 
negotiated rulemaking in good faith;
    (4) Whether any single party has, or is perceived to have, the 
ability to dominate negotiations, thereby making a compromise solution 
unlikely;
    (5) Whether there are clear and identifiable issues that are agreed 
to be ripe for a negotiated solution;
    (6) Whether a negotiated solution would require one or more parties 
to compromise a fundamental value;
    (7) Whether the use of negotiated rulemaking is reasonably likely 
to result in an agreement or course of action satisfactory to all 
parties; and
    (8) Whether there are legal deadlines or other legal issues that 
either mitigate against negotiation or provide incentives to reach a 
negotiated solution.
    If a bureau has decided to enter into a negotiated rulemaking, it 
will prepare a brief report describing the goals, objectives, 
anticipated parties, and projected timetables of the negotiation. 
Throughout the negotiation, the bureau will prepare brief periodic 
reports discussing the progress toward achieving the goals, objectives, 
and timetables of the negotiation, and highlighting any successes and 
unanticipated events or issues encountered during the negotiation. 
These reports shall be submitted to ORA and the IDRC.
    At the end of the two-year interim policy, ORA, the DRS, and IDRC 
shall prepare a report to the Secretary evaluating the Department's 
experiences with negotiated rulemaking. This report will focus upon the 
types of policies, categories of rulemakings, and methods of 
negotiation that were most successful in achieving customer 
satisfaction and the cost-effective implementation of mutually 
agreeable rulemakings. This report will be based upon evaluations 
conducted by the bureaus and submitted to ORA, IDRC, and the DRS for 
review and assimilation into the report to the Secretary.

IV. Executive Order 12866

    This interim policy was not subject to Office of Management and 
Budget review under Executive Order 12866.

    Dated: June 2, 1994.
Bonnie R. Cohen,
Assistant Secretary, Policy, Management and Budgets.

Appendix I--Glossary of ADR Terms
Appendix II--Examples of ADR Initiatives

Appendix I--Glossary of ADR Terms

    The following terms are commonly associated with ADR and negotiated 
rulemaking and contain many recognized forms of ADR. They are provided 
for the reader's convenience and have been adapted from the ADR Act, 
the Negotiated Rulemaking Act, and other sources.
    Alternative means of dispute resolution--An inclusive term used to 
describe a variety of problem-solving processes that are used in lieu 
of litigation or administrative adjudication to resolve issues in 
controversy, including but not limited to, settlement negotiations, 
conciliation, facilitation, mediation, fact-finding, minitrials, and 
arbitration, or any combination thereof.
    Arbitration--A process, quasi-judicial in nature, whereby a dispute 
is submitted to an impartial and neutral third party who considers the 
facts and merits of a case and decides the matter. To be revised 
consistent with 5 U.S.C. 588, et. seq.
    Conciliation--Procedures intended to help establish trust and 
openness between the parties to a dispute.
    Dispute--An issue which is material to a decision concerning an 
administrative or mission-related program of an agency and with which 
there is disagreement between the agency and a person or persons who 
would be substantially affected by the decision.
    Dispute resolution communication--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 participants. A written agreement to enter into a dispute 
resolution proceeding, or a final written agreement or arbitration 
award reached as a result of a dispute resolution proceeding, is not a 
dispute resolution communication.
    Dispute resolution proceeding--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.
    Facilitation--Involves the assistance of a third party who is 
impartial toward the issues under discussion and who works with all 
participants in a whole group session providing procedural directions 
on how the group can effectively move through the problem-solving steps 
of the meeting and arrive at the jointly agreed upon goal.
    Fact-finding--Involves the use of neutrals acceptable to all 
parties to determine disputed facts. This can be particularly useful 
where disagreements about the need for or the meaning of data are 
impeding resolution of a dispute, or where the disputed facts are 
highly technical and would be better resolved by experts. Fact-finding 
usually involves an informal presentation of its case by each party. 
The neutral(s) then provide an advisory opinion on the disputed facts, 
which can be used by the parties as a basis for further negotiation.
    Litigation--A dispute brought in a court of law to enforce a 
statute, right, or legally created cause of action that will be decided 
based upon legal principles or evidence presented.
    Mediation--Involves the intervention into a dispute of an impartial 
and neutral third party, who has no decisionmaking authority but who 
will procedurally assist the parties to reach voluntarily an acceptable 
settlement of issues in dispute.
    Minitrial--A structured settlement process in which the disputants 
agree on a procedure for presenting their cases in highly abbreviated 
versions (usually no more than a few hours or a few days) to senior 
officials for each side with authority to settle the dispute. This 
process allows those in senior positions to see firsthand the relative 
strengths and weaknesses of their cases and can serve as a basis for 
more fruitful negotiations. Often, a neutral presides over the hearing, 
and may, subsequently, mediate the dispute or help parties evaluate 
their cases.
    Negotiated rulemaking--Rulemaking accomplished through the use of a 
negotiated rulemaking committee.
    Negotiated rulemaking committee--An advisory committee established 
by an agency in accordance with the Negotiated Rulemaking Act and the 
Federal Advisory Committee Act to consider and discuss issues for the 
purpose of reaching a consensus in the development of a proposed rule.
    Negotiation--Involves a bargaining relationship between two or more 
parties who have either perceived or actual conflicts of interest. The 
participants join voluntarily in a temporary relationship to educate 
each other about their needs and interests and exchange specific 
resources or promises that will resolve on or more issues. Almost all 
of the ADR procedures, in which the parties maintain control over the 
outcome of the conflict, are variations upon or elaborations of the 
negotiation process.
    Neutral--An individual, who with respect to an issue in 
controversy, functions specifically to aid the parties in resolving the 
controversy. The individual 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 dispute, unless such interest is fully disclosed in 
writing to all parties and all parties agree that the neutral may 
serve.
    Ombudsman--A person designated to address selected categories of 
disputes by investigating the circumstances that gave rise to the 
matter; and based upon the investigative findings, recommending 
corrective action, as appropriate.
    Roster--A list of persons qualified to provide services as neutrals 
that is maintained by the agency.

Appendix II--Examples of ADR Initiatives

    Various bureaus and offices within the Department have been 
involved in implementing ADR processes. Some of the more prominent 
examples of ADR initiatives that reflect the Department's commitment to 
ADR include:
    In 1990, the Department disseminated to each of the Department's 
bureaus and offices an ADR survey designed to identify program areas 
that could be amenable to ADR techniques. Among the questions asked 
were: (1) The categories of disputes in which the organization is 
typically involved; (2) the number of cases during the prior 2 fiscal 
years that were (a) docketed, (b) settled, and (c) litigated, and the 
approximate cost involved; and (3) the organization's experience to 
date in utilizing ADR techniques.
    The Department conducted an orientation program on ADR. Included in 
the orientation program was Senator Charles Grassley, one of the 
sponsors of the ADR Act, together with representatives of the 
Administrative Conference of the United States (ACUS) and the Federal 
Mediation and Conciliation Service (FMCS).
    The Department conducted a one day training program on ADR. The 
training focused on the various methods of ADR and included 
representatives from the U.S. Army Corps of Engineers, the 
Environmental Protection Agency, the Department of Health and Human 
Services, and the Department of Transportation, each of whom shared 
their experiences in developing successful ADR programs.
    The Department's Office for Equal Opportunity (OEO) provided 
training in basic and advanced mediation skills for OEO and personnel 
program officials and Equal Employment Opportunity (EEO) counselors. 
OEO also issued a directive to bureaus and offices providing guidance 
on the development and implementation of ADR pilot programs consistent 
with 29 CFR part 1614. Under this directive each bureau and office is 
to submit an ADR pilot program plan delineating specific actions to be 
taken to incorporate ADR techniques into the EEO complaints process.
    The Department recently made consideration of the use of ADR in the 
resolution of discrimination complaints mandatory and has designated a 
Departmental EEO/ADR Coordinator and directed each bureau to designate 
a Bureau EEO/ADR Coordinator.
    The Department designated the Bureau of Reclamation as a pilot 
bureau in FY-93 for the purpose of testing the effectiveness of 
mediation in the resolution of EEO complaints and administrative 
grievances. The Bureau has relied exclusively on contract neutrals to 
serve as mediators for all dispute referred for ADR. Mediation has also 
been utilized by Reclamation in other program areas, including resource 
management and contract administration. Reclamation is assessing the 
results of its mediation program to determine whether to expand its 
usage to other program areas.
    The Department's Office of Hearings and Appeals has implemented ADR 
as an alternative to administrative litigation. The Board of Indian 
Appeals and the administrative law judges vested with authority for 
adjudicating Indian probate cases have encouraged the use of settlement 
agreements to resolve these matters. Under 43 CFR 4.207, administrative 
law judges have been authorized to effect compromise settlements in 
probate actions where the parties concerned agree to compromise and 
where the judge establishes that all necessary conditions have been 
met. The Board of Contract Appeals has been effectively implementing 
ADR processes over the last 2 years in its cases. At the time a case is 
docketed, the Board issues an order notifying the parties to the 
dispute of the availability and benefits of ADR. Through actively 
promoting ADR as a viable alternative, the Board has settled a majority 
of its cases without the need to conduct a hearing.
    The Bureau of Land Management (BLM) has recognized the benefits of 
ADR techniques, and a presentation on the topic was made at the 
Bureau's Solid Minerals Conference in Albuquerque, New Mexico, in April 
1993. The BLM, in partnership with the Bowie State University's Center 
for Alternative Dispute Resolution, has provided basic Conflict 
Management ADR training to Personnelists and EEO practitioners, as well 
as to key management officials. The BLM will continue to work with the 
Center for ADR and other outside resources to provide training during 
Fiscal Year 1994.
    The Minerals Management Service (MMS) has a rich history of ADR. 
The MMS's examples include (1) a process targeted at settling 
outstanding and contentious mineral royalty claims which has reduced 
appeals and litigation and increased royalty collections, and (2) more 
than a decade of conflict resolution training for offshore minerals 
management personnel and establishment and conduct of a joint review 
panel for constituent review of environmental documents.
    The Bureau of Mines (USBM) has recognized the benefits of ADR 
techniques and has provided training to principal officials in the use 
of ADR techniques. Training was provided by a contractor for the 
Directorates of the Bureau on orientation to ADR techniques; 
Information and Analysis on September 28, 1993; Finance and Management, 
December 8, 1993; and Research on January 11, 1994. Training will also 
be provided to EEO Counselors by the EEO Staff and the Federal 
Mediation and Conciliation Service in June 1994. The Bureau plan to 
continue the use of ADR for EEO complaints and to expand it to other 
types of disputes. The EEO Office has used mediation and negotiation 
for EEO complaints in the precomplaint stage and also the formal 
complaint stage.

[FR Doc. 94-14288 Filed 6-10-94; 8:45 am]
BILLING CODE 4310-79-M