[Federal Register Volume 60, Number 160 (Friday, August 18, 1995)]
[Notices]
[Pages 43108-43117]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-20560]
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ADMINISTRATIVE CONFERENCE OF THE UNITED STATES
Adoption of Recommendations
AGENCY: Administrative Conference of the United States.
ACTION: Notice.
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SUMMARY: The Administrative Conference of the United States (ACUS)
adopted five recommendations at its Fifty-Second Plenary Session. The
recommendations concern: (1) Review of Existing Agency Regulations; (2)
Streamlined Processes for Noncontroversial and Expedited Rulemaking;
(3) Resolution of Government Contract Bid Protest Disputes; (4)
Alternative Dispute Resolution Confidentiality and the Freedom of
Information Act; and (5) Use of Mediation under the Americans with
Disabilities Act.
FOR FURTHER INFORMATION CONTACT: Jeffrey S. Lubbers, 202-254 7020.
SUPPLEMENTARY INFORMATION: The Administrative Conference of the United
States was established by the Administrative Conference Act, 5 U.S.C.
591-596. The Conference studies the efficiency, adequacy, and fairness
of the administrative procedures used by federal agencies in carrying
out administrative programs, and makes recommendations for improvements
to the agencies, collectively or individually, and to the President,
Congress, and the Judicial Conference of the United States (5 U.S.C.
594(1)). At its Fifty-Second Plenary Session, held June 15-16, 1995,
the Assembly of the Administrative Conference of the United States
adopted five recommendations.
Recommendation 95-3, ``Review of Existing Agency Rules,'' proposes
that agencies develop processes for systematically reviewing their
rules. Such processes should be designed by and tailored to the
individual agencies. Agencies should set priorities for rule review,
and provide for public input into the priority-setting process. The
petition for rulemaking process should be strengthened to ensure
adequate agency response, but should not be allowed to dominate an
agency's agenda. Agencies should devote adequate attention and
resources to the task of reviewing their existing rules.
Recommendation 95-4, ``Procedures for Noncontroversial and
Expedited Rulemaking,'' endorses two rulemaking procedures that can
expedite rules in appropriate cases. Direct final rulemaking is
appropriate where a rule is expected to generate no significant adverse
comment, and allows an agency to avoid publishing both a proposed and
final rule. The Recommendation also proposes that agencies using
interim final rulemaking should always provide for post-promulgation
comment, and should always respond to the comments and make any
necessary modifications. Such post-promulgation procedures should be
used in all rules where prepromulgation comment is excused under the
``good-cause'' exemption of 5 U.S.C. 553(b)(3)(B) as ``impracticable''
or ``contrary to the public interest.''
Recommendation 95-5, ``Government Contract Bid Protests,'' proposes
reexamination of the current jurisdictional arrangements for hearing
the protests of disappointed seekers of government contracts. The
recommendation urges that jurisdiction over bid protests, now available
in four different forums (including the General Accounting Office, the
General Services Board of Contract Appeals (for contracts involving
information technology), the federal district courts, and the Court of
Federal Claims) be streamlined by providing that all protests be heard
initially in an administrative forum, with judicial review available
exclusively in the U.S. Court of Appeals for the Federal Circuit.
Should Congress not wish to consider exclusive appellate-level
jurisdiction, the Conference alternatively proposes eliminating
district court jurisdiction in favor of consolidated jurisdiction in
the Court of Federal Claims. In addition, Recommendation 95-5 urges
Congress to mandate empirical testing of the effect of the bid protest
process to analyze the costs and benefits of that process and to
determine whether it has improved the quality or reduced the cost of
public procurement; the recommendation suggests several different
approaches to such a study, among them a pilot study under which an
agency or agencies would be permitted to conduct some or all
procurement free of protest controls for a period of years, with the
results to be compared to procurement conducted under protest controls.
Recommendation 95-6, ``ADR Confidentiality and the Freedom of
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Information Act,'' seeks to deal with a difficulty raised by the 1990
Administrative Dispute Resolution Act concerning the need for
confidentiality of some documents generated by ADR proceedings (e.g.,
mediator's notes) and their availability under FOIA. This
recommendation, based in large part, on a study by Professor Mark
Grunewald that describes the state of the law and evaluates the need
for change, calls on Congress to amend the ADR Act's confidentiality
provisions to make clear that they constitute an exemption from
disclosure under the FOIA.
Recommendation 95-7, ``Use of Mediation under the Americans with
Disabilities Act,'' urges that federal agencies with enforcement
responsibilities under the Act cooperate to establish a coordinated
program for voluntary mediation of ADA cases under all titles. The
recommendation suggests establishing a joint committee to develop the
program. Use of a common group of trained mediators is suggested to
handle a variety of disputes arising under the Act, and several
criteria are listed for evaluating the program.
The full texts of the recommendations are set out in the Appendix
below. The recommendations will be transmitted to the affected agencies
and to appropriate committees of the United States Congress. The
Administrative Conference has advisory powers only, and the decision on
whether to implement the recommendations must be made by the affected
agencies or by Congress.
Recommendations and statements of the Administrative Conference are
published in full text in the Federal Register. In past years
Conference recommendations and statements of continuing interest were
also published in full text in the Code of Federal Regulations (1 CFR
Parts 305 and 310). Budget constraints have required a suspension of
this practice in 1994. However, a complete listing of past
recommendations and statements is published in the Code of Federal
Regulations. Copies of all past Conference recommendations and
statements, and the research reports on which they are based, may be
obtained from the Office of the Chairman of the Administrative
Conference. Requests for single copies of such documents will be filled
without charge to the extent that supplies on hand permit (see 1 CFR
Sec. 304.2).
The transcript of the Plenary Session is available for public
inspection at the Conference's offices at Suite 500, 2120 L Street NW.,
Washington, DC.
Dated: August 15, 1995.
Jeffrey S. Lubbers,
Research Director.
Appendix--Recommendations of the Administrative Conference of the
United States
The following recommendations were adopted by the Assembly of the
Administrative Conference on Thursday, June 15, 1995.
Recommendation 95-3, Review of Existing Agency Regulations
Federal agencies generally have systems in place to develop new
regulations. Once those regulations have been promulgated, the agency's
attention usually shifts to its next unaddressed issue. There is
increasing recognition, however, of the need to review regulations
already adopted to ensure that they remain current, effective and
appropriate. Although there have been instances where agencies have
been required to review their regulations to determine whether any
should be modified or revoked, there is no general process for ensuring
review of agency regulations.
The Administrative Conference believes that agencies have an
obligation to develop systematic processes for reviewing existing
rules, regulations and regulatory programs on an ongoing basis. If
Congress determines that such a review program should be mandated, it
should allow the President and agencies maximum flexibility to design
processes that are sensitive to individual agency situations and types
of regulations. Thus, such legislation should assign to the President
the responsibility for overseeing agency compliance through general
guidelines that take into account agency resources and other
responsibilities. The obligation to review existing regulations should
be made applicable to all agencies, whether independent or in the
executive branch.
Given the difference among agencies, however, processes for review
of existing regulations should not be ``one-size-fits-all,'' but should
be tailored to meet agencies' individual needs. Thus, the President, as
well as Congress, should avoid mandating standardized or detailed
requirements. Moreover, the review should focus on the most important
regulations and offer sufficient time and resources to ensure
meaningful analysis. Tight time frames or review requirements
applicable to all regulations, regardless of their narrow or limited
impact, may prevent agencies from being able to engage in a meaningful
effort. It is important that priority-setting processes be developed
that allow agencies, in consultation with the Office of Management and
Budget and the public (including but not limited to the regulated
communities), to determine where their efforts should be directed.
Public input into the review process is critical. The
Administrative Procedure Act already provides in section 553(e) for
petitions for rulemaking, which allow the public to seek modifications
or revocation of existing regulations as well as ask for new rules. The
Administrative Conference has in the past suggested some improvements
in the ways agencies administer and respond to such petitions. See
Recommendation 86-6, ``Petitions for Rulemaking.'' It suggests, among
other things, that agencies establish deadlines for responding to
petitions. The Conference reiterates that recommendation and proposes
that, if necessary, the President by executive order or the Congress
should mandate that petitions be acted upon within a specified time,
for example 12-18 months.
Although petitions for rulemaking are a useful method for the
public to recommend to agencies changes it believes are important, such
petitions should not be allowed to dominate the agency's agenda.
Agencies have a broad responsibility to respond to the needs of the
public at large and not all members of the public are equally equipped
or motivated to file rulemaking petitions. Thus, the petition process
should be a part, but only a part, of the process for determining
agency rulemaking priorities, both with respect to the need for new
regulations and to review of existing regulations. Agencies should also
develop other mechanisms for public input on the priorities for review
of regulations, as well as on the impact and effectiveness of those
regulations.
Properly done, reviewing existing regulations is not a simple task.
It may require resources and information that are not readily
available. Each agency faces different circumstances, depending on the
number of its regulations, their type and complexity, other
responsibilities, and available resources. These processes must be
designed so that they take into account the need for ongoing review,
the agency's overall statutory responsibilities, including mandates to
issue new regulations, and other demands on agency resources. Because
there are relatively few successful well-developed models available and
no widely accepted methodologies, the Conference recommends that
agencies experiment with various methods. Such programs might explore
different
[[Page 43110]]
approaches with the aim of finding one (or several) that functions
effectively for the particular agency. Agencies may want to look to
activities at the state level, as well as the limited federal-level
experience.
Review of existing regulations is primarily a management issue. As
such, agency discretion must be recognized as important and judicial
review should be limited. Agency denials of petitions for rulemaking
under the APA are subject to judicial review, but courts have properly
limited their scope of review in this context. There is no warrant for
Congress to change current review standards, nor should any regularized
or systematic program for review of existing regulations be subject to
greater judicial scrutiny.
Recommendation
I. Review Requirements
All agencies (executive branch or ``independent'') should develop
processes for systematic review of existing regulations to determine
whether such regulations should be retained, modified or revoked. If
Congress decides to mandate such programs, it should limit that
requirement to a broad review, assign to the President the
responsibility for overseeing the review process, and specify that each
agency design its own program.
II. Focus of Regulation Review
Systematic review processes should be tailored to meet the needs of
each agency, focus on the most important regulations, and provide for a
periodic, ongoing review. The nature and scope of the review should be
determined by, among other things, the agency's other responsibilities
and demands on its resources. Sufficient time should be provided to
allow meaningful information-gathering and analysis.
III. Setting Priorities
Agencies should establish priorities for which regulations are
reviewed when developing their annual regulatory programs or plans,\1\
and in consultation with OMB and the public. In setting such
priorities, the following should be considered:
\1\ See Executive Orders 12,498 (``Regulatory Program'' required
by President Reagan) and 12,866 (``Regulatory Plan'' required by
President Clinton).
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A. whether the purpose, impact and effectiveness of the regulations
have been impaired by changes in conditions;\2\
\2\ See (V)(B), infra.
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B. whether the public or the regulated community views modification
or revocation of the regulations as important;
C. whether the regulatory function could be accomplished by the
private sector or another level of government more effectively and at a
lower cost; and
D. whether the regulations overlap or are inconsistent with
regulations of the same or another agency.
Agencies should not exclude from their review those regulations for
which statutory amendment might be required to achieve desired change.
Agencies should notify Congress of such regulations and the relevant
statutory provisions.
IV. Public Input
A. Agencies should provide adequate opportunity for public
involvement in both the priority-setting and review processes. In
addition to reliance on requests for comment or other recognized means
such as agency ombudsmen \3\ and formally established advisory
committees, agencies should also consider other means of soliciting
public input. These include issuing press releases and public notices,
convening roundtable discussions with interested members of the public,
and requesting comments through electronic bulletin boards or other
means of electronic communication.
\3\ See ``The Ombudsman in Federal Agencies,'' ACUS
Recommendation 90-2.
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B. The provisions of 5 U.S.C. Sec. 553(e) authorizing petitions for
rulemaking also provide a method for reviewing existing regulations.
These provisions should be strengthened to ensure adequate and timely
agency responses. \4\ Agencies should establish deadlines for their
responses to petitions; if necessary, the President by executive order
or Congress should mandate that petitions be acted upon within a
specified time. Congress should not modify the current limited judicial
review standard applicable to petitions for rulemaking.
\4\ See Recommendation 86-6, ``Petitions for Rulemaking.''
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V. Agency Implementation of Regulatory Review Processes
A. Agencies should provide adequate resources to and ensure senior
level management participation in the review of existing regulations.
B. As part of the review process, agencies should review
information in their files as well as other available information on
the impact and the effectiveness of regulations and, where appropriate,
should engage in risk assessment and cost-benefit analysis of specific
regulations.
C. In developing processes for reviewing existing regulations,
agencies should consider:
1. Frequency of review: Regulations could be reviewed on a pre-set
schedule (e.g., regulations reviewed every [x] years; a review date set
at the time a new regulation is issued; regulations subject to
``sunset'' dates) or according to a flexible priority list.
2. Categories of regulations to be reviewed: Regulations could be
reviewed by age, by subject, by affected group, by agencies
individually or on a multi-agency basis.
D. Agencies should consider experimenting with partial programs and
evaluate their effectiveness.
Recommendation 95-4, Procedures for Noncontroversial and Expedited
Rulemaking
Rulemaking has been the subject of considerable debate and review
in recent times. Concern has been expressed that rulemaking processes
provide adequate opportunity for meaningful public input while allowing
agencies, in appropriate circumstances, to expedite the implementation
of rules when they either are needed immediately or are routine or
noncontroversial. Agencies have experimented with procedures to achieve
these objectives. Two of these procedures, ``direct final rulemaking,''
and ``post-promulgation comment'' rules (also called ``interim final
rulemaking'') are discussed here.
Direct Final Rulemaking
Direct final rulemaking is a technique for expediting the issuance
of noncontroversial rules. It involves agency publication of a rule in
the Federal Register with a statement that, unless an adverse comment
is received on the rule within a specified time period, the rule will
become effective as a final rule on a particular date (at least 30 days
after the end of the comment period). However, if an adverse comment is
filed, the rule is withdrawn, and the agency may publish the rule as a
proposed rule under normal notice-and-comment procedures.\1\
\1\ When an agency believes that it can incorporate the adverse
comment in a subsequent direct final rulemaking, it may use the
direct final rulemaking process again.
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The process generally has been used where an agency believes that
the rule is noncontroversial and adverse comments will not be received.
It allows the agency to issue the rule without having to go through the
review process twice (i.e., at the proposed and final rule
[[Page 43111]]
stages),\2\ while at the same time offering the public the opportunity
to challenge the agency's view that the rule is noncontroversial.
\2\ Rules are generally reviewed both by the agency and by the
Office of Information and Regulatory Affairs. Internal agency review
is often time-consuming. Under current practice, review of direct
final rules by OIRA would be uncommon, since, under E.O. 12,866,
only rules deemed to be ``significant'' are subject to review.
Should this policy be changed, the Conference urges that agency
rules issued through the direct final rulemaking process be subject
to no more than one OIRA review.
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Under current law, direct final rulemaking is supported by two
rationales. First, it is justified by the Administrative Procedure
Act's ``good cause'' exemption from notice-and-comment procedures where
they are found to be ``unnecessary.'' The agency's solicitation of
public comment does not undercut this argument, but rather is used to
validate the agency's initial determination. Alternatively, direct
final rulemaking also complies with the basic notice-and-comment
requirements in section 553 of the APA. The agency provides notice and
opportunity to comment on the rule through its Federal Register notice;
the publication requirements are met, although the information has been
published earlier in the process than normal; and the requisite advance
notice of the effective date required by the APA is provided.\3\
\3\ A separate Federal Register notice stating that no adverse
comment has been received and that the rule will be effective on a
date at least 30 days in the future can also be used to further
alleviate any concern regarding proper advance notice to the public.
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Because the process protects public comment and expedites routine
rulemaking, the Administrative Conference recommends that agencies use
direct final rulemaking in all cases where the ``unnecessary'' prong of
the good cause exemption is available, unless the agency determines
that the process would not expedite issuance of such rules. The
Conference further recommends that agencies explain when and how they
will employ direct final rulemaking. Such a policy should be issued as
a procedural rule or a policy statement.\4\
\4\ The Conference has previously suggested that notice-and-
comment procedures be used for procedural rules where feasible. See
Recommendation 92-1, ``The Procedural and Practice Rule Exemption
From APA Notice-and Comment Rulemaking Requirements.''
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The Conference recommends that agencies publish in the notice of
the direct final rulemaking the full text of the rule and the statement
of basis and purpose, including all the material that would be required
in the preamble to a final rule. The Conference also recommends that
the public be afforded adequate time for comment.\5\
\5\ The Conference has previously recommended that the APA be
amended to ensure that at least 30 days be allowed for public
comment, while encouraging longer comment periods. Recommendation
93-4, ``Improving the Environment for Agency Rulemaking,'' para.IV
and Preamble at p. 5.
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The direct final rulemaking process is based upon the notion that
receipt of ``significant adverse'' comment will prevent the rule from
automatically becoming final. Agencies have taken different approaches
in defining ``adverse'' comments for this purpose. Some have said that
a mere notice of intent to file an adverse comment is sufficient.
Others have required that the comment either state that the rule should
not be adopted or suggest a change to the rule; proposals simply to
expand the scope of the rule would not be considered adverse. Some have
said that a recommended change in the rule would not in and of itself
be treated as adverse unless the comment states that the rule would be
inappropriate as published. The Conference recommends that a
significant adverse comment be defined as one where the commenter
explains why the rule would be inappropriate, including challenges to
the rule's underlying premise or approach, or would be ineffective or
unacceptable without a change. In determining whether a significant
adverse comment is sufficient to terminate a direct final rulemaking,
agencies should consider whether the comment raises an issue serious
enough to warrant a substantive response in a notice-and-comment
process.
To assure public notice of whether and when a direct final rule
becomes effective, agencies should include in their initial Federal
Register notices a statement that, unless the agency publishes a
Federal Register notice withdrawing the rule by a specified date, it
will become effective no less than 30 days after such specified date.
Alternatively, an agency should publish a separate ``confirmation
notice'' after the close of the comment period stating that no adverse
comments were received and setting forth an effective date at least 30
days in the future. The effective date of the rule should be at least
30 days after the public has been given notice that the agency does not
intend to withdraw the rule, unless the rule ``grants or recognizes an
exemption or relieves a restriction,'' 5 U.S.C. Sec. 553(d)(1), or is
otherwise exempted from the delayed effective date of section 553(d) of
the APA. The fact that a rule has proved noncontroversial is not itself
an appropriate basis for dispensing with the delay in the effective
date.
Agencies may also wish to consider using direct final rulemaking
procedures in some cases where the text of the rule has been developed
through the use of negotiated rulemaking. Where the course of the
negotiations suggests that the result will be noncontroversial, the
direct final rulemaking process offers the opportunity for expedited
rulemaking while at the same time ensuring that the opportunity for
comment is not foreclosed.
Although direct final rulemaking is viewed by the Conference as
permissible under the APA as currently written, Congress may wish to
expressly authorize the process. Authorization would alleviate any
uncertainty and reduce the potential for litigation.
Post-Promulgation Comment Procedures (``Interim Final Rulemaking'')
Agencies have increasingly used a post-promulgation comment process
commonly referred to as ``interim final rulemaking'' to describe the
issuance of a final rule without prior notice and comment, but with a
post-promulgation opportunity for comment. By inviting comment, the
agency is indicating that it may revise the rule in the future based on
the comments it receives--thus leading to the label of an ``interim-
final'' rule.
Although the process has been used in a variety of contexts, it is
used most frequently where an agency finds that the ``good cause''
exemption of the APA justifies dispensing with prepromulgation notice
and comment. Recognizing the value of public comment, however, the
agency offers an opportunity for comment after the final rule has been
published.\6\ This allows the agency both to issue the rule quickly
where necessary and provide opportunity for some public comment. On the
other hand, prepromulgation comment is generally considered preferable
because agencies are perceived by commenters as more likely to accept
changes in a rule that has not been promulgated as a final rule--and
potential commenters are more likely to file comments in advance of the
agency's ``final'' determination.
\6\ The Administrative Conference has recommended such post-
promulgation comment opportunity.
See Recommendation 83-2, ``The `Good Cause' Exemption from APA
Rulemaking Requirements.''
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Under current law, agencies must be able to justify use of the good
cause or other exemptions from notice-and-comment procedures under the
APA if they are providing only post
[[Page 43112]]
promulgation comment opportunity. Courts generally have not allowed
post-promulgation comment as an alternative to the prepromulgation
notice-and-comment process in situations where no exemption is
justified. Where a rule is exempt from notice-and comment requirements,
however, it is still advantageous to provide such procedures, even if
offered after the rule has been promulgated. Public comment can provide
both useful information to the agency and enhanced public acceptance of
the rule.\7\
\7\ See also Section 202 of the Unfunded Mandates Reform Act of
1995, Pub. L. 104-2 (to be codified at 2 U.S.C. 1532) (requirement
for preparing analysis in connection with ``general notice of
proposed rulemaking'' for rules resulting in non-federal
expenditures of $100,000,000 or more).
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The Conference therefore recommends that, where an agency invokes
the good cause exemption because notice and comment are
``impracticable'' or ``contrary to the public interest,'' it should
provide an opportunity for post-promulgation comment.\8\ This
recommendation does not apply to temporary rules, i.e., those that
address a temporary emergency or expire by their own terms within a
relatively brief period, such as rules that close waterways for boat
races or airspace for air shows.
\8\ This is consistent with the Conference's long-standing
position that such opportunity for comment should be offered. See n.
6, supra, See also Recommendation 90-8, ``Rulemaking and
Policymaking in the Medicaid Program,'' para.A(2).
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When using post-promulgation comment procedures in this context,
agencies should implement the following processes. The agency should
include in the notice of the rule a request for public comment as well
as a statement that it will publish in the Federal Register a response
to significant adverse comments received along with modifications to
the interim rule, if any. The Conference also suggests that an agency
generally put a cross-reference notice in the ``Proposed Rules''
section of the Federal Register to ensure that the public is notified
of the request for comment. The agency should then, and as
expeditiously as possible, respond to any significant adverse comments
and make any changes that it determines are appropriate. Agencies
should consider including in the initial notice either a deadline by
which they will respond to comments and make any appropriate changes or
a ``sunset'' or termination date for the rule's effectiveness.
The Conference addresses these recommendations in the first
instance to the agencies. If they do not implement these proposals, the
Conference recommends that the President issue an appropriate executive
order mandating use of post-promulgation comment procedures for rules
issued under the good cause exemption (except those invoking the
``unnecessary'' clause). If necessary, or when the APA is otherwise
reviewed, Congress should amend the APA to include such a requirement.
The Conference also suggests that agencies consider using similar
procedures for other rules issued initially without notice and comment,
such as interpretive rules, procedural rules, or rules relating to
grants, benefits, contracts, public property, or military or foreign
affairs functions.\9\ Only for those rules where notice and comment are
considered unnecessary should such processes not be used; in such
cases, agencies should consider direct final rulemaking.
\9\ Recommendation 76-5, ``Interpretive Rules of General
Applicability and Statements of General Policy.'' Cf. Recommendation
92-1, ``The Procedural and Practice Rule Exemption From APA Notice-
and-Comment Rulemaking Requirements.''
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Where an agency has used post-promulgation comment procedures,
responded to significant adverse comments and ratified or modified the
rule as appropriate, the Conference suggests that a reviewing court
generally should not set aside that ratified or modified rule solely on
the basis that adequate good cause did not exist to support invoking
the exemption initially. At this stage, the agency's initial flawed
finding of good cause should normally be treated as harmless error with
respect to the validity of the ratified or modified rule.
Recommendation
I. Direct Final Rulemaking
A. In order to expedite the promulgation of noncontroversial rules,
agencies should develop a direct final rulemaking process for issuing
rules that are unlikely to result in significant adverse comment.
Agencies should define ``significant adverse comment'' as a comment
which explains why the rule would be inappropriate, including
challenges to the rule's underlying premise or approach, or why it
would be ineffective or unacceptable without a change. Procedures
governing the direct final rulemaking process should be established and
published by each agency.
B. Direct final rulemaking should provide for the following minimum
procedures:
1. The text of the rule and a notice of opportunity for public
comment should be published in the final rule section of the Federal
Register,10 with a cross-reference in the proposed rule section
that advises the public of the comment opportunity.
\10\ Agencies should also consider other mechanisms for
providing public notice.
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2. The notice should contain a statement of basis and purpose for
the rule which discusses the issues the agency has considered and
states that the agency believes that the rule is noncontroversial and
will elicit no significant adverse comment.
3. The public should be afforded adequate time (at least 30 days)
to comment on the rule.
4. The agency's initial Federal Register notice should state which
of the following procedures will be used if no significant adverse
comments are received: (a) the agency will issue a notice confirming
that the rule will go into effect no less than 30 days after such
notice; or (b) that unless the agency publishes a notice withdrawing
the rule by a specified date, the rule will become effective no less
than 30 days after the specified date.11
\11\ 5 U.S.C. 553(d) provides for exemption from the 30-day
advance notice where, for example, the rule ``grants or recognizes
an exemption or relieves a restriction.''
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5. Where significant adverse comments are received or the rule is
otherwise withdrawn, the agency should publish a notice in the Federal
Register stating that the direct final rulemaking proceeding has been
terminated.12
\12\ At that point, of course, the agency may proceed with usual
notice-and comment rulemaking, or if the agency believes it can
easily address the comment(s), it may proceed with another direct
final rulemaking.
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C. Agencies should also consider whether to use direct final
rulemaking following development of a proposed rule through negotiated
rulemaking.
D. If legislation proves necessary to remove any uncertainty that
direct final rulemaking is permissible under the APA, Congress should
amend the APA to confirm that direct final rulemaking is authorized.
II. Post-Promulgation Comment Procedures (Interim-Final Rulemaking)
A. Agencies should use post-promulgation comment procedures (so-
called ``interim final rulemaking'') for all legislative rules that are
issued without prepromulgation notice and comment because such
procedures are either ``impracticable'' or ``contrary to the public
interest.'' 13 5 U.S.C. Sec. 553(b)(3)(B) (``good cause
[[Page 43113]]
exemption''.14 If necessary, the President should issue an
appropriate executive order or Congress should amend the APA to include
such a requirement.
\13\ This recommendation does not apply to temporary rules,
meaning those that expire by their own terms within a relatively
brief period.
\14\ The Conference does not recommend a change in the coverage
of the ``good cause'' exemption, but does not oppose a change if
such a change is understood simply as a codification of existing
practice.
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B. When using post-promulgation comment procedures, agencies
should:
1. publish the rule and a request for public comment in the final
rules section of the Federal Register, and, in general, provide a
cross-reference in the proposed rules section that advises the public
that comments are being sought.
2. include a statement in the Federal Register notice that,
although the rule is final, the agency will, if it receives significant
adverse comments, consider those comments and publish a response along
with necessary modifications to the rule, if any.
3. consider whether to include in the Federal Register notice a
commitment to act on any significant adverse comments within a fixed
period of time or to provide for a sunset date for the rule.
C. Where an agency has used post-promulgation comment procedures
(i.e., appropriate agency ratification or modification of the rule
following review of and response to post-promulgation comments), courts
are encouraged not to set aside such ratified or modified rule solely
on the basis that inadequate good cause existed originally to dispense
with prepromulgation notice and comment procedures.
D. Agencies should consider using post-promulgation comment
procedures for all rules that are issued without prepromulgation notice
and comment, including interpretive rules, procedural rules, rules
relating to contracts, grants etc., or military or foreign affairs
functions.15
\15\ However, this recommendation does not apply to rules issued
under the ``unnecessary'' clause of the good cause exemption; in
such cases, agencies should consider using direct final rulemaking.
See Part I, above.
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Recommendation 95-5, Government Contract Bid Protests
In contrast to the private contracting system, which relies mainly
on profit maximization and reputation to constrain the discretion of
private purchasers in dealing with potential sellers, United States law
provides a variety of opportunities for disappointed seekers of
government contracts to air their grievances against the contracting
process and its results. In addition to pursuing redress within the
purchasing agency, a disappointed offeror can challenge the
government's conduct in one of four protest forums: the General
Accounting Office (GAO), the General Services Board of Contract Appeals
(GSBCA) (for contracts involving automated data processing and
telecommunications equipment), the federal district courts, and the
Court of Federal Claims. In no other area of public administration have
Congress and the courts provided so large and diverse an array of
avenues for challenging the decisions of government officials.
This complex system evolved in a number of steps over the last 75
years. Soon after its creation in 1921, GAO began accepting bid
protests under its authority to settle and adjust claims involving the
United States and to issue advisory decisions concerning questions of
payment by the government. In a series of court opinions from the mid-
1950's to 1970 [most notably the 1970 decision in Scanwell
Laboratories, Inc. v. Shaffer, 424 F.2d 859 (D.C. Cir. 1970)], the
federal district courts took on an expanded role in oversight of bid
protests, and Congress extended authority to grant equitable relief in
pre-award bid protest cases to the Claims Court (now the Court of
Federal Claims) in the Federal Courts Improvement Act of 1982. The
Competition in Contracting Act of 1984 (CICA) completed the foundation
for the modern bid protest structure. CICA reflected a strong
congressional presumption that government purchasing agencies should
use competitive procurement techniques to increase opportunities for
firms to compete for contract awards. It bolstered the bid protest
mechanism and increased the ability of complaining offerors to gain
access to information about the government's decisionmaking process.
The eleven years that have passed since enactment of that
legislation provide a basis for reexamination of the Act's premises and
its impact. In addition, the government procurement process has been
the subject of much recent study by scholars, professional
associations, and blue ribbon commissions including the Acquisition Law
Advisory Panel and the National Performance Review. Congress has also
given extensive recent consideration to procurement reform. Severe
budget pressures have inspired several congressional committees to
consider statutory changes that would reduce procurement transaction
costs and induce a broader array of firms to compete for government
contracts. The Federal Acquisition Streamlining Act of 1994, enacted
last fall, changed many features of procurement regulation and signaled
a new congressional receptivity to proposals for restructuring the
procurement process, although it did not significantly change the
structure of the bid protest process. Legislation introduced this
spring and supported by the Clinton Administration would, among other
things, establish a uniform arbitrary-and-capricious standard of review
for all bid protests and eliminate the jurisdiction of the federal
district courts. Other legislative initiatives are in development.
Proposals for reorganizing the bid protest process have been
numerous and varied, including suggestions for a single administrative
bid protest forum (one of the existing forums or a new entity), as well
as for different combinations of existing or new forums. Issues such as
the appropriate standard of review, available discovery, formality of
procedure, and availability of a stay of the procurement pending the
proceedings have also prompted widely varying suggested alternatives.
Although much attention has been devoted to the bid protest process,
however, it has been largely theoretical. Without additional, currently
unavailable empirical information, the Administrative Conference does
not believe it can recommend a specific design for an ideal forum or
combination of forums to process bid protests.
Certain streamlining modifications to the existing system of
alternatives, however, seem clearly appropriate without further study.
In particular, the Conference sees no persuasive justification for
preserving direct court jurisdiction over bid protests. The
administrative options for hearing bid protests today are considerably
more substantial than those that existed when Scanwell was decided or
when Congress granted protest jurisdiction to the Court of Federal
Claims. Moreover, the factual and legal issues involved in these cases
are well within the competence of an administrative forum. Provision
for direct judicial review of administrative protest decisions in the
Court of Appeals for the Federal Circuit should adequately protect the
rights of litigants (provided that the administrative decision includes
clearly stated reasons, so that there will be a record adequate for
judicial review) and promote the development of a consistent body of
law related to protests.
Even if Congress decides to preserve direct recourse to the courts,
there is no longer a need for initial district court jurisdiction. The
Court of Federal Claims provides a satisfactory forum for court
consideration of these cases. The caseload in question is not large
enough to burden that court unduly, and through travel and, when
appropriate,
[[Page 43114]]
telecommunications, the Court of Federal Claims adequately meets the
needs of litigants outside of Washington, DC.
To make wise decisions about the exact type of administrative forum
(or forums) that should hear bid protests, however, requires empirical
data on the impact of bid protests on government procurement that is
not now available. Moreover, these issues raise questions about the
basic premises underlying the bid protest system. Current law, and many
of the debates about the number and nature of forums for review of bid
protests, assume that a robust protest mechanism improves government
procurement performance by spurring savings-generating competition for
government contracts and by monitoring the performance of government
officials who may not exercise discretion to the benefit of taxpayers.
But there is scant empirical evidence for judging whether public
purchasing officials are more prone to shirk their responsibility to
maximize taxpayer interests than private purchasing officials are to
shirk their responsibility to maximize shareholder interests, or what
net effect the modern system of protest controls, including CICA and
related protest reforms, has had on procurement outcomes.
Fundamental questions about the bid protest process--whether it is
effective in increasing the efficiency and fairness of government
procurement, what remedies it should provide to disappointed offerors,
or what standard of review oversight tribunals (regardless of their
number or location) should apply--are being debated in this empirical
void. The Administrative Conference believes that informed decisions on
these issues require a foundation of detailed empirical research that
cannot adequately be conducted without Congressional authorization. In
particular, Congress might pass legislation allowing selected
government purchasing agencies to conduct business free from protest
oversight for a period of time, with the results to be compared with
those at agencies operating under traditional protest controls.\1\
Additional avenues of research, including comparison of pre- and post-
Competition in Contracting Act agency procurement, detailed study of
the impact of GAO or GSBCA review on specific agency procurement,
examination of state and local approaches to procurement and bid
protests, or comparison of the procurement activity and results of a
major government purchasing agency and a major private company
purchasing department, would be aided significantly by legislative
authorization to collect data and funding support. With the successful
completion of such research, Congress and other policy makers would be
able to make better informed judgments about the need for extensive
protest oversight of government procurement activity and the proper
forum and standard of review for any such protest oversight.
\1\ The pending legislation would authorize the Administrator of
the Office of Federal Procurement Policy to ``waive any provision of
law, rule or regulation necessary'' to assist agencies in conducting
test programs to evaluate specific changes in acquisition policies
or procedures. S.669, Title V, Section 5001, amending section 15 of
the Office of Federal Procurement Policy Act (41 USC Sec. 413). This
broad provision might be read to include authority to waive laws
requiring the availability of protest mechanisms.
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Recommendation
I. Initial Jurisdiction to Review Bid Protests
Congress should streamline the system for handling bid protests by
reducing the alternatives available for initial jurisdiction over bid
protests.
A. All bid protests should be heard initially in some
administrative forum independent of the agency office conducting the
procurement.\2\ To achieve this end, Congress should eliminate the
direct jurisdiction of the Court of Federal Claims and of the federal
district courts over bid protests. The United States Court of Appeals
for the Federal Circuit should be given exclusive jurisdiction over all
appeals from administrative bid protest decisions.
\2\ The Administrative Conference takes no position in this
recommendation on the preferred structure of, or standard of review
tobe applied by, such administrative forum(s). The Conference notes,
however, that if GAO continues to be involved in handling bid
protests and such cases are directly reviewable in the Court of
Appeals for the Federal Circuit, the reviewing court would
effectively review the contracting agency's decision on the
procurement, as informed by the GAO opinion; to facilitate this
process, agencies should conclude action on a procurement that has
been reviewed by the GAO by issuing a clear statement of the
agency's final determination and the reasons for it.
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B. If Congress decides, notwithstanding Recommendation I(A), that
the courts should retain direct jurisdiction over bid protests, then
such initial court jurisdiction should be consolidated in the Court of
Federal Claims for both pre-award and post-award protests.
II. Testing Bid Protest Systems
Congress should mandate empirical testing of the effect of the bid
protest process to analyze the costs and benefits of that process and
to determine whether it has improved the quality or reduced the cost of
public procurement. This analysis should include evaluation of the
impact of the bid protest process (and any alternatives under
consideration) on existing and prospective bidders for government
contracts as well as on the government. It should involve consideration
of the potential impact of adjustments to the bid protest process (such
as application of different standards of review of agency procurement
decisions and imposition of sanctions for the filing of frivolous bid
protests) as well as examination of the premises underlying the bid
protest system as a whole. Specific approaches Congress should consider
supporting include:
A. Cross-agency comparison--a pilot study in which one or more
federal agencies that conduct a substantial amount of procurement
activity would be permitted to conduct procurement with respect to some
discrete type or types of contracts (e.g., computer or telephone
equipment contracts) free of most or all bid protest controls for a
specific period of years (e.g., five years), with the agencies'
performance to be compared with their own performance before the
beginning of the pilot and/or on bid protest-controlled contracts
during the pilot period and with that of agencies continuing to operate
under the existing bid protest system;
B. Competition in Contracting Act comparison--a comparison of the
pre- and post-Competition in Contracting Act procurement experience of
major government purchasing agencies to identify changes in agency
behavior and procurement results;
C. GAO/GSBCA comparison--an examination of specific major
procurement to determine whether GAO and GSBCA bid protest
determinations (including the specific procedures available and
standards of review applied in these forums) have produced desirable
outcomes in particular procurement and to assess the impact of GAO and
GSBCA rulings on purchasing agency conduct;
D. Government/private sector comparison--a comparison between the
procurement experience of a major government purchasing organization
and that of a major private company purchasing department to determine
differences in the outcomes of efforts to purchase comparable goods or
services over time;
E. Federal/state comparison--a comparison of federal government
procurement experience with that of state and local governments that
may employ procurement oversight
[[Page 43115]]
mechanisms different in kind or degree from those at the federal level.
In pursuing any of these options or other studies of the
procurement system, Congress should assign responsibility for research
and evaluation to an independent body that is not directly involved in
conducting major procurement or resolving bid protests. In the case of
a pilot study, Congress should provide for regular collection of
appropriate data during the pilot period to permit adequate evaluation.
Recommendation 95-6, ADR Confidentiality and the Freedom of Information
Act
The Administrative Dispute Resolution Act (ADRA) accords a
substantial measure of confidentiality to oral or written
communications made in a covered dispute resolution proceeding. This
protection was based upon Administrative Conference Recommendation 88-
11, which recognized that in promoting the use of alternative dispute
resolution (ADR) in federal agencies ``a careful balance must be struck
between the openness required for the legitimacy of many agency
agreements and the confidentiality that is critical if sensitive
negotiations are to yield agreements.''
The confidentiality section of the ADRA, 5 U.S.C. 574, consists of
a detailed set of standards reflecting generally the balance proposed
in Recommendation 88-11. It is narrow in scope in that it is limited to
communications prepared for the purposes of a dispute resolution
proceeding. It does not protect an agreement to enter into a dispute
resolution proceeding or the agreement or award reached in such a
proceeding. It does not prevent the discovery or admissibility of
otherwise discoverable evidence merely because the evidence was
presented in a dispute resolution proceeding. It does not have any
effect on the information and data necessary to document or justify an
agreement reached in a dispute resolution proceeding. It also permits
disclosure of a dispute resolution communication in special
circumstances where all parties to the proceeding consent; where the
communication has already been made public or is required by statute to
be made public; or where a court determines disclosure is, on balance,
necessary to prevent a manifest injustice, help establish a violation
of law, or prevent harm to the public health and safety sufficient to
justify disclosure.
In the final stages of the legislative process leading to the
passage of the ADRA, a question arose as to the relationship between
the confidentiality section and the Freedom of Information Act (FOIA).
With the understanding that the importance of passing the dispute
resolution bill without delay justified an interim solution, a
provision, subsection 574(j), was added on the Senate floor \1\
providing that the confidentiality section would not be considered an
Exemption 3 statute under FOIA.\2\
\1\ During this colloquy, Senator Levin summarized as follows: I
am pleased that we were able, for the purposes of passing this bill
this year and getting the ADR process rolling, to temporarily
resolve the confidentiality issue. As the Administrative Conference
of the United States wrote in its recommendation on this subject, *
* * since settlements are essential to administrative agencies, a
careful balance must be struck between the openness required for the
legitimacy of many agency agreements and the confidentiality that is
critical if sensitive negotiations are to yield agreements. ts. The
provisions in this bill, as amended, do not as yet achieve that
balance, and I am pleased that Senators Grassley and Leahy have
agreed to address this issue more completely next year. 136 Cong.
Rec. at S18088 (daily ed. Oct. 24,1990).
\2\ Under Exemption 3, the FOIA disclosure requirements do not
apply to matters that are ``specifically exempted from disclosure by
statute . . . provided that such statute (A) requires that the
matters be withheld from the public in such a manner as to leave no
discretion on the issue, or (B) establishes particular criteria for
withholding or refers to particular types of matters to be
withheld.''
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This last minute addition has created a narrow, but significant,
problem in accomplishing fully the purposes of the ADRA. In those
circumstances in which dispute resolution communications become
``agency records'' within the meaning of FOIA, the confidentiality of
the records is determined not by the provisions of section 574, but
rather by the terms of the exemptions to FOIA. For users of ADR, the
trumping effect of FOIA in this class of cases means that
confidentiality is not governed by the careful balance struck in
section 574 but rather by the complex body of FOIA law which accords no
special protection for dispute resolution communications on the basis
of the process needs of ADR. While some dispute resolution
communications that become agency records--for example because they
come under the control of a government-employee neutral--may be exempt
from mandatory disclosure under FOIA, the scope of the exemptions and
possible gaps in coverage create uncertainty as to the confidentiality
of such records.
This uncertainty, in turn, has become a disincentive to the use of
ADR.\3\ Even though the ADRA has been in place for only four years,
concern about the impact of FOIA on confidentiality has had a chilling
effect on the use of ADR. This effect could become even more
substantial if a case arose in which expected confidentiality was
undermined by a FOIA claim. To accomplish the objectives of
Recommendation 88-11, the confidentiality standards of section 574
should be given effect with respect to all covered dispute resolution
communications, even where those communications become agency records
under FOIA.\4\
\3\ Some added uncertainty has been raised by the ADRA's
protection of ``any information concerning'' a dispute resolution
communication. The recommendation calls for dropping this language.
\4\ This recommendation pertains solely to the provisions of the
ADRA. The Conference recognizes that agencies, in some
circumstances, conduct similar processes under other authority.
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Recommendation
1. The confidentiality section of the Administrative Dispute
Resolution Act, 5 U.S.C. 574, should be amended to provide that records
confidential under that section and generated by or initially submitted
to the government in a dispute resolution proceeding are exempt from
disclosure under the Freedom of Information Act, Exemption 3, 5 U.S.C.
552(b)(3).
2. Any alternative confidentiality procedures agreed to by the
parties and neutral under subsection 574(d) should not, for purposes of
Exemption 3, be construed to provide broader confidentiality than is
otherwise available under section 574.
3. The words ``any information concerning'' should be deleted from
section 574 (a) and (b).
The following recommendation was adopted by the Assembly of the
Administrative Conference on Friday, June 16, 1995.
Recommendation 95-7, Use of Mediation under the Americans with
Disabilities Act
Despite the efforts of the agencies charged with enforcing the
Americans with Disabilities Act (ADA), there are substantial backlogs
of cases at the investigation stage at many agencies, creating
unusually lengthy delays in enforcement. Because of enforcement delays,
many individuals are not obtaining needed relief in a timely manner and
respondents are not relieved of the burden of pending non-meritorious
charges. In this era of shrinking government, an influx of significant
additional public resources for investigation and litigation seems
unlikely. The Equal Employment Opportunity Commission (EEOC) and the
Department of Justice have each begun to experiment with alternative
dispute resolution (ADR) as one approach to reducing backlogs and
[[Page 43116]]
achieving compliance with the statute.\1\ The Conference believes that
mediation is the ADR technique that offers greatest immediate promise
for resolving ADA cases more quickly and to the satisfaction of the
parties involved, and that agencies with enforcement responsibilities
under the ADA should offer the opportunity for mediation in appropriate
cases. Mediation has the potential to preserve relationships between
the parties and to empower them to take greater responsibility in
resolving their disputes. In addition compliance with mediated
settlements is generally high because of the parties' participation in
developing the solution.
\1\ The ADA, 42 U.S.C. Sec. 12212, explicitly encourages the use
of ADR, where appropriate and authorized by law, to resolve disputes
arising under its provisions. General authority for use of ADR may
also be found in the Administrative Dispute Resolution Act, 5 U.S.C.
Sec. 572.
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This recommendation is intended to encourage additional efforts to
implement the use of mediation and to provide guidance on undertaking
and evaluating a joint program.\2\ The mediation program proposed in
this recommendation expands on prior agency pilot mediation programs by
including additional types of cases, and also provides a coordinated
framework for mediation of ADA cases under all four titles of the
statute.
\2\ Though mediation currently appears to be the most promising
ADR technique for disputes arising under the ADA, the Conference
encourages examination and experimentation with other ADR
techniques. See Recommendation 86-3, ``Agencies' Use of Alternative
Means of Dispute Resolution.''
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Because several agencies are charged with enforcement of the
various titles of the ADA (EEOC, Department of Justice, Department of
Transportation, and Federal Communications Commission), it is important
that they jointly participate in designing the recommended mediation
program. This collaborative effort will minimize costs and maximize
benefits by using a common group of trained mediators to mediate a
variety of ADA cases, selected for referral to mediation based on
criteria established by the agencies. The joint effort should also
develop sources of mediators who can serve at low cost or pro bono, at
least at the inception of the program, and should consider ways to
finance the costs of using mediators where such arrangements cannot be
made.
Extensive evaluation of the program pursuant to criteria
established as part of the program design will enable the agencies to
gather the information necessary to refine the program so that it is
used most effectively to resolve disputes at a low cost, in a manner
that is fair to the parties and consistent with the statute. The
evaluation should include analysis of the comparative costs of
mediation, the effectiveness of mediation for different types of
disputes, the satisfaction level of the participants, the impact on the
case backlog, the effect on processing time of cases, the impact on
systemic litigation, consistency of mediated results with the statute,
and whether mediation disadvantages individuals with disabilities or
other historically disadvantaged groups.
Analysis of the program results, along with the results of EEOC and
Department of Justice pilot mediation programs, should provide the
information necessary to ensure that mediation is furthering the goal
of elimination of discrimination against the individuals with
disabilities. The contemplated evaluation will permit the agencies to
focus future mediation efforts on those cases where mediation is most
effective. Additionally, successful experience with agency-sponsored
mediation may encourage and empower actual or potential parties to use
private mediation or even negotiation without neutral assistance to
resolve future disputes, further conserving government and private
resources.
Recommendation
Coordinated Mediation Program
1. The Americans with Disabilities Act (ADA) enforcement agencies
\3\ should establish a joint committee composed of representatives of
each of the agencies to develop a program for voluntary mediation of
ADA cases under all titles, in order to achieve the rapid, mutually
agreeable resolution of disputes over compliance with the requirements
of the ADA.\4\ This committee also could serve the purpose of improving
consistency in enforcement of the statute among the agencies. In order
to assist the joint committee in creating a mediation program that will
attract participants and meet their needs, the agencies should appoint
an advisory committee pursuant to the Federal Advisory Committee Act,
composed of representatives of potential participants, such as
businesses, state and local government entities, representatives of
organizations whose purpose is to represent persons with disabilities,
and civil rights and labor organizations, to provide advice in program
design.
\3\ The primary enforcement agencies should be involved in
establishing the program. These include the Department of Justice,
Equal Employment Opportunity Commission, Department of
Transportation, and Federal Communications Commission. Other
agencies that could provide input into the process, refer cases to
the program, and participate in the educational effort are the
Federal Mediation and Conciliation Service and the Title II
investigative agencies designated in 28 C.F.R. Sec. 35.190: the
Departments of Agriculture, Education, Health and Human Services,
Housing and Urban Development, the Interior, and Labor.
\4\ Since there have been few cases under Title IV, which amends
the Communications Act to ensure the availability of communication
by wire or radio for individuals with speech or hearing
disabilities, there may also be less opportunity to use mediation.
Also, the FCC's enforcement process differs from those of the other
ADA enforcement agencies. Nevertheless, efforts should be made to
include appropriate Title IV cases in the mediation program to
enable the best possible assessment of mediation's effectiveness.
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2. The mediation program should follow the broad outlines set forth
herein, as refined by the agencies' joint committee after consultation
with the advisory committee. The program should utilize a common group
of trained mediators to mediate a variety of disputes arising under the
ADA. The joint committee should determine the criteria for mediator
participation in the program, considering the pilot projects already
established, which include mediator training, and the training
previously conducted by the EEOC and the Department of Justice. If the
number of trained mediators is insufficient, the agencies should
jointly conduct or sponsor any necessary training. Mediators must also
have sufficient knowledge of the various titles of the ADA, familiarity
with resources for ADA compliance, and knowledge of the impact of
various disabilities. The joint committee should identify potential
sources of mediators who are willing to serve pro bono or at low cost,
at least at the inception of the program, as well as sources of
technical expertise \5\ to assist in mediation.
\5\ For example, architects, engineers, or vocational
rehabilitation experts may be able to serve as mediators, or to act
as advisers to inform parties of available technical options to help
resolve disputes.
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3. The agencies should engage in extensive educational efforts to
encourage use of the mediation process in a variety of cases and to
enable unrepresented parties to participate effectively. The
educational efforts should focus on informing parties and potential
parties about the process to increase both participation rates and the
effectiveness of participation.
4. The agencies should determine the selection criteria for
referral of cases to mediation, refining and modifying the criteria
based on evaluation of effectiveness. The agencies should consider
combining mediation with an early assessment program which will assist
in determining allocation of resources for investigative processes.
[[Page 43117]]
Review and Evaluation
5. The mediation program should incorporate an after-the-fact
agency review of settlements reached in mediation to examine their
enforceability, consistency with the ADA, and whether the process
reduces the time needed to resolve individual cases (both elapsed time
and person-hours). This review should not result in overturning
individual mediated settlements, nor should it impair the
confidentiality of the mediation process or otherwise discourage
participation in it.
6. In designing the program, the joint committee should establish
program objectives, evaluation criteria, and a system for collecting
the data necessary for evaluation. The evaluation process should be
designed to provide data and analysis that will enable (i) a
determination of the circumstances under which mediation is appropriate
and effective for resolving ADA cases and (ii) the identification of
any systemic problems that are not addressed by mediated settlements.
The following issues should be included in the evaluation:
(a) in what types of cases is mediation most effective?
(b) at what point in the investigative process is mediation most
effective, taking into account the costs of any investigation that
precedes mediation?
(c) does mediation reduce the cost of processing cases for the
parties and/or the government?
(d) what is the effect of mediation on processing time of cases,
including whether mediation adds to processing time where it is
unsuccessful?
(e) what is the impact of mediation on the investigation and case
backlog?
(f) what is the satisfaction level of the participants in
mediation, including separate measures of satisfaction for complainants
(charging parties) and respondents?
(g) what are the best sources of qualified mediators?
(h) is the use of a common group of mediators for various types of
cases effective, taking into account costs, settlement rates,
settlement results, and mediator performance?
(i) how are the costs of using mediators to be financed?
(j) are the results of mediated settlements, settlements reached
through other processes, and litigation in similar cases comparable?
(k) does the mediation program impact systemic litigation?
(l) is agency review of mediated settlements effective and
necessary?
(m) is the process equally fair and effective for represented and
unrepresented parties?
(n) are individuals with disabilities disadvantaged in mediation?
(o) does availability of technical expertise affect settlement
rates?
(p) what is the rate of compliance with mediated settlements?
Additional criteria deemed necessary and appropriate should be
added by the joint committee designing the program.
7. The joint committee should review the mediation program
regularly pursuant to the evaluation criteria and in consultation with
the advisory committee, modifying the program as suggested by the
results of the evaluation to ensure its continued effectiveness and
consistency with statutory goals.
Consideration of Other ADR Techniques
8. The ADA enforcement agencies should jointly continue to study
and evaluate other alternative dispute resolution techniques for
disputes arising under the ADA.\6\
\6\ See Recommendation 86-3, ``Agencies' Use of Alternative
Means of Dispute Resolution,'' and the ADA, 42 U.S.C. Sec. 12212.
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[FR Doc. 95-20560 Filed 8-17-95; 8:45 am]
BILLING CODE 6110-01-W