[Federal Register Volume 65, Number 221 (Wednesday, November 15, 2000)]
[Pages 69121-69126]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-29099]



[Docket OST-2000-7800]
RIN: 2105-AC94

Interim Statement of Policy on Alternative Dispute Resolution

AGENCY: Office of the Secretary, DOT.

ACTION: Notice of interim statement of policy; request for comments.


SUMMARY: The Department of Transportation publishes this Interim 
Statement of Policy to further its commitment to using alternative 
dispute resolution (ADR ) to advance our mission by preventing, 
minimizing escalation of, and resolving disputes among our employees 
and with external parties, at the earliest stage possible, in a cost-
effective manner. This notice is intended to provide information about 
ADR, introduce new ADR initiatives, and promote the use of ADR. We 
request comments on our interim policy statement, on how to incorporate 
ADR into our processes, and how to encourage its use in appropriate 

DATES: Comments must be received by January 16, 2001.

ADDRESSES: Submit written comments to the Dockets Management System,

[[Page 69122]]

U.S. Department of Transportation, PL 401, 400 Seventh Street, SW., 
Washington, DC 20590-0001. Comments should refer to Docket Number OST-
2000-7800 and be submitted in two copies. If you wish to receive 
confirmation of receipt of your written comments, include a self-
addressed, stamped postcard. Comments may also be submitted to the 
docket electronically by logging onto the Dockets Management System 
website at http://dms.dot.gov. Click on ``Help & Information'' to 
obtain instructions for filing the comment electronically. In every 
case, the comment should refer to the Docket number. The Dockets 
Management System is located on the Plaza level of the Nassif Building 
at the Department of Transportation at the above address. You can 
review public dockets there between the hours of 9:00 a.m. and 5:00 
p.m., Monday through Friday, except Federal holidays. You can also 
review comments on-line at the DOT Dockets Management System web site 
at ``http://dms.dot.gov/.''

FOR FURTHER INFORMATION CONTACT: Judith S. Kaleta, Senior Counsel for 
Dispute Resolution and Dispute Resolution Specialist, 202-493-0992.


Interim Statement of Policy on Alternative Dispute Resolution (ADR)

    ADR is a collaborative, consensual dispute resolution approach. It 
describes a variety of problem-solving processes that are used in lieu 
of litigation or other adversarial proceedings to resolve 
disagreements. ADR encompasses mediation, facilitation, conciliation, 
factfinding, mini-trials, negotiation, negotiated rulemaking, neutral 
evaluation, policy dialogues, use of ombuds, arbitration, and other 
processes that usually involve a neutral third party who assists the 
parties in preventing, minimizing the escalation of, and resolving 
disputes. The efficient and effective use of ADR will help us resolve 
disputes at an early stage, in an expeditious, cost-effective, and 
mutually acceptable manner.
    The Department of Transportation is committed to using ADR to 
advance our mission. We will consider using ADR in all areas including 
workplace issues, formal and informal adjudication, issuance of 
regulations, enforcement and compliance, issuing and revoking licenses 
and permits, contract and grant award and administration, litigation 
brought by or against the Department, and other interactions with the 
public and the regulated community.
    We will provide learning and development opportunities for our 
employees so that they will be able to use conflict resolution skills, 
understand the theory and practice of ADR, and apply ADR appropriately.
    We will use a variety of evaluation and assessment strategies to 
measure and improve our processes and our use of ADR.
    We will allocate resources to support the use of ADR.
    We will provide confidentiality consistent with the provisions of 
the Administrative Dispute Resolution Act and other applicable Federal 
    The Department will attempt to incorporate ADR in its dispute 
resolution, or as appropriate, rulemaking processes. In addition, 
either on our own initiative or in response to a request, the 
Department will examine the appropriateness of using ADR on a case-by-
case basis. The decision-making on when to use ADR should reflect sound 
judgment that ADR offers the best opportunity to resolve the dispute. 
In appropriate disputes, the Department will use ADR in a good-faith 
effort to achieve consensual resolution. However, if necessary, we will 
litigate or participate in some other process to resolve a dispute.
    We will work together to further ADR use across the Department. 
However, decision-making on incorporating ADR into dispute resolution 
processes, using ADR to resolve a particular dispute, and allocating 
resources rests with the Department's operating administrations, 
secretarial offices, or Office of the Inspector General.
    All employees and persons who interact with the Department are 
encouraged to identify opportunities for collaborative, consensual 
approaches to dispute resolution or rulemaking.


    The Administrative Dispute Resolution Act of 1996, 5 U.S.C. 571-
583, authorizes and encourages Federal agencies to use consensual means 
of dispute resolution as alternatives to traditional dispute resolution 
processes. The Act defines alternative means of dispute resolution as 
``any procedure that is used to resolve issues in controversy * * *'' 
It defines ``issue in controversy'' as ``an issue which is material to 
a decision concerning an administrative program of an agency, and with 
which there is disagreement * * *'' The Act requires that each Federal 
agency adopt a policy that addresses the use of ADR and appoint a 
Dispute Resolution Specialist. Congress enacted the Administrative 
Dispute Resolution Act to reduce the time, cost, inefficiencies, and 
contentiousness that too often are associated with litigation and other 
adversarial dispute resolution mechanisms.
    The Negotiated Rulemaking Act of 1996, 5 U.S.C. 561-570, 
establishes a framework for use of negotiated rulemaking. Congress 
enacted the Negotiated Rulemaking Act to increase the acceptability and 
improve the substance of rules, making it less likely that the affected 
parties will challenge the rules or resist enforcement.
    On May 1, 1998, President Clinton issued a memorandum for heads of 
executive departments and agencies encouraging the use of ADR and 
negotiated rulemaking. In his memorandum, the President stated that 
each Federal agency must take steps to promote greater use of 
mediation, facilitation, arbitration, early neutral evaluation, ombuds, 
negotiated rulemaking, and other dispute resolution techniques.
    For purposes of this ADR initiative, ``the Department'' or ``we'' 
refers to the Office of the Secretary, the operating administrations 
(the United States Coast Guard, the Federal Aviation Administration, 
the Federal Highway Administration, the Federal Motor Carrier Safety 
Administration, the Federal Railroad Administration, the National 
Highway Traffic Safety Administration, the Federal Transit 
Administration, the Maritime Administration, the Saint Lawrence Seaway 
Development Corporation, the Research and Special Programs 
Administration, the Bureau of Transportation Statistics, and the 
Transportation Administrative Services Center (TASC)), and the Office 
of Inspector General. The Department's ADR initiative is a ONEDOT 
effort, where we are working better together to create and communicate 
our ADR goals. As we strive to meet our national transportation goals, 
we recognize the need to collaborate and form partnerships, internally 
and externally.
    Experience at the Department of Transportation and other Federal 
agencies shows that ADR can achieve mutually acceptable solutions more 
effectively than traditional, non-collaborative processes.

Promoting ADR

    The Department has taken several affirmative steps to promote the 
use of ADR.

Dispute Resolution Specialist

    As required by the Administrative Dispute Resolution Act, the 
Secretary appointed a Dispute Resolution Specialist. The Dispute 
Resolution Specialist is authorized to: (1) Implement the 
Administrative Dispute

[[Page 69123]]

Resolution Act of 1996 and coordinate with the Assistant General 
Counsel for Regulation and Enforcement with regard to ADR policy as it 
relates to rulemaking under the Negotiated Rulemaking Act of 1996; (2) 
develop dispute resolution policy and procedures; (3) monitor and 
evaluate dispute resolution program execution and results; (4) identify 
barriers to the use of ADR and work for their removal; (5) require 
reports from Departmental organizations and report to the Secretary 
annually on the Department's ADR efforts; (6) determine appropriate 
training to educate employees and external parties about ADR and 
conflict management options and processes; (7) provide advice and 
assistance in obtaining neutrals; and (8) represent the Department on 
ADR matters.
    Notwithstanding this focal point for ADR activity, decision-making 
on whether to incorporate ADR into dispute resolution processes or to 
use ADR to resolve a particular dispute rests with the Department's 
operating administrations, secretarial offices, and the Office of 
Inspector General. Furthermore, the participation in a particular ADR 
process is by mutual consent of the parties.

Dispute Resolution Council

    The Secretary established a Dispute Resolution Council as part of 
the Department's ONEDOT management strategy to work better together and 
to further use of ADR across the Department. The Council, chaired by 
the Department's Dispute Resolution Specialist, is comprised of 
representatives appointed by heads of modal administrations and 
secretarial officers and the Inspector General, who serve as Deputy 
Dispute Resolution Specialists to promote and coordinate the use of ADR 
within their organizations and coordinate with their Regulation or 
Liaison Officer with regard to ADR policy as it relates to rulemaking 
under the Negotiated Rulemaking Act of 1996. The Dispute Resolution 
Council worked together to develop the Department's interim policy 
statement. The Dispute Resolution Council supports the Dispute 
Resolution Specialist and works together to (1) facilitate the sharing 
of ADR information; (2) examine how the Department is currently using 
ADR, in headquarters and the regions, and make recommendations for 
improvements; (3) explore the use of ADR techniques in connection with 
a variety of areas; and (4) assist in identifying future ADR uses and 
coordinating the development of ADR programs.

Web Site

    The Dispute Resolution Council has established a web site to 
provide information about the Department's use of ADR. The site 
provides links to a variety of other ADR sites, including the 
Interagency ADR Working Group, the Federal Procurement ADR Electronic 
Guide, and the Office of Personnel Management ADR Resource Guide. The 
site will be regularly updated to provide information about our ADR 
efforts. The web address is www.dot.gov/adr.


    The Department is committed to educating its personnel about the 
potential benefits and appropriate use of ADR, as well as to obtain ADR 
guidance and assistance. The Department has provided training about 
ADR, effective communication, and conflict management. Employees who 
serve as neutrals to resolve disputes using ADR techniques have 
received core training and will receive additional training annually. 
The Department intends to work in partnership with other Federal 
agencies, through the Interagency ADR Working Group, and in other ways 
to meet our training needs.


    The Department will use a variety of evaluation and assessment 
strategies to provide valid and reliable information for measuring and 
improving performance. Depending on the ADR program, we may look at the 
number of attempts to use ADR , the number of resolutions, customer 
satisfaction with the process, the neutral, and/or the resolutions, or 
estimated cost- and/or time-savings.


    As noted in Appendix II, the Department is using ADR for a variety 
of activities and has provided resources to support ADR use. However, 
lack of resources is often identified as a barrier to ADR use. To avoid 
this potential barrier, the Department will continue to allocate 
resources to support ADR initiatives. This may include collateral duty 
or detail assignments, permanent ADR positions, contract dollars, or 
other funding alternatives. Decision-making on allocating resources 
rests with the Department's operating administrations and secretarial 


    In some instances, many of the benefits of ADR can be realized only 
through confidential proceedings. Confidentiality ensures that the 
parties may speak freely with a neutral who will not disclose their 
confidences to other parties or to the outside world. Without that 
assurance, the parties may be unwilling to freely discuss their 
interests and possible settlements with the neutral. Confidentiality 
also allows the parties to raise sensitive issues and discuss creative 
ideas and solutions that they would be unwilling to discuss publicly.
    Although negotiated rulemaking is a process conducted under the 
Federal Advisory Committee Act at public meetings that have been 
announced in the Federal Register, confidentiality may also be a 
consideration for the participants. For example, a convenor who 
impartially assists an agency in determining whether establishment of a 
negotiated rulemaking committee is feasible and appropriate may agree 
not to disclose the identity of a party who raises a particular concern 
about an agency. Information shared in caucuses may also be 
    The Administrative Dispute Resolution Act generally provides that 
communications (including a neutral's notes and documents prepared for 
the proceedings) between a neutral and the parties must be kept 
confidential by the neutral and the parties, unless certain specific 
exceptions exist. A court may require disclosure of such information if 
it is necessary to prevent a manifest injustice, help establish a 
violation of law, or prevent harm to the public health or safety. The 
injustice, violation, or harm must be of a sufficient magnitude in the 
particular case to outweigh the integrity of the dispute resolution 
proceedings. In addition, other Federal laws may impact the 
confidentiality of information in specific cases.

ADR Considerations

    A decision to use ADR may be made before or after a dispute arises. 
Several factors should be considered in making that decision. Some 
factors may favor the use of ADR while others may weigh against it. 
Although not intended as an exhaustive list of factors, the Department 
has determined that ADR may be helpful in resolving a particular 
dispute where one or more of the following factors is present:
    1. Identifiable Parties. There is an identifiable group of 
constituents with interests (the parties) so that all reasonably 
foreseeable interests can be represented.
    2. Good Faith. The parties are willing to participate in good 
    3. Communication. The parties are interested in seeking agreement, 
but poor communication or personality conflicts between the parties 
adversely affect negotiations.

[[Page 69124]]

    4. Continuing Relationship. A continuing relationship between the 
parties is important and desirable.
    5. Issues. There are issues that are agreed to be ripe for a 
negotiated solution.
    6. Unrealistic View of the Issues. The parties' demands or views of 
the issues are unrealistic. A discussion of the situation with a 
neutral may increase the parties' understanding and result in more 
realistic alternatives and options.
    7. Sufficient Areas of Compromise. There are sufficient areas of 
compromise to make ADR worthwhile.
    8. Expectation of Agreement. The parties expect to agree 
eventually, most likely before reaching the court room or engaging in 
other adversarial processes.
    9. Timing. There is sufficient time to negotiate and ADR will not 
unreasonably delay the outcome of the matter in dispute. There is a 
likelihood that the parties will be able to reach agreement within a 
fixed time. There are no statutory or judicial deadlines that are 
adversely affected by the process. ADR may result in an earlier 
resolution of the dispute.
    10. Resources. The parties have adequate resources (budget and 
people) and are willing to commit them to the process.
    While many of these factors may apply to agency rulemaking, there 
may be some variation in the consideration. For example, with regard to 
``Expectation of Agreement,'' the consideration may be that all 
affected interests recognize that there is a problem that must be 
solved and that Federal regulation is the appropriate response. 
Furthermore, under the Negotiated Rulemaking Act, the head of the 
agency would determine whether negotiated rulemaking is in the public 
interest and would consider several factors concerning the parties, the 
timing, the costs, and the issues. See 5 U.S.C. 561.
    There are also factors that suggest that ADR should not be used. 
The Administrative Dispute Resolution Act of 1996 provides factors that 
suggest that ADR is inappropriate or may not be productive in a 
particular dispute resolution proceeding. See 5 U.S.C. 572.

Relationship to Other Dispute Resolution Procedures

    This interim policy statement replaces DOT Order 2101.1. It does 
not supersede collective bargaining agreements or other statutory, 
regulatory, or contractual dispute resolution procedures, or military 
disciplinary processes. ADR is intended to supplement, not replace, 
existing procedures.

No Creation of Rights

    The choice of when and how to use ADR is within the discretion of 
the Department's operating administrations and secretarial offices. 
This interim statement of policy does not create any right to judicial 
review involving the compliance or noncompliance with the statement. In 
addition, the statement does not obligate the Department to offer funds 
to settle any case, to accept a particular settlement or resolution of 
a dispute, or to alter any existing delegation of settlement or 
litigation authority.

Request for Public Comment

    The Department invites comment on the interim policy statement. In 
addition, the Department welcomes input on areas of agency activity 
that would benefit from a dispute resolution process that incorporates 
ADR techniques including workplace issues, formal and informal 
adjudication, issuance of regulations, enforcement and compliance, 
issuing and revoking licenses and permits, contract and grant award and 
administration, litigation brought by or against the Department, and 
other interactions with the public and the regulated community. 
Appendix II includes examples of ADR initiatives currently in use and 
under consideration.

    Issued in Washington, DC on October 23, 2000.
Rodney E. Slater,
Secretary of Transportation.

Appendix I--Glossary of ADR Terms

    The following terms are commonly associated with ADR. They are 
provided for your convenience and have been adapted from the 
Administrative Dispute Resolution Act and other sources.
    Arbitration: Arbitration is a process in which a neutral 
decision-maker oversees the exchange of information, presides over a 
mini-hearing, and decides the matter. Arbitration may be binding or 
    Conciliation: Conciliation is a process in which a neutral 
independently communicates with the parties either to improve 
relations, resolve a dispute, or pave the way for some other ADR 
process, such as mediation. Conciliation is intended to help 
establish trust and openness between parties to a dispute.
    Convening: Convening is a process used to identify issues, 
interests, and parties to a dispute or potential dispute. The goal 
of convening is to assess the potential for use of other ADR 
processes to resolve a problem and to recommend a process or 
combination of processes.
    Early Neutral Evaluation: Early neutral evaluation is a process 
in which the parties provide the highlights of their positions to an 
expert neutral fact-finder who evaluates the merits. The neutral 
provides a non-binding, objective evaluation of the strength of each 
party's position. This assists in future negotiations between the 
    Facilitation: Facilitation is a process in which a neutral works 
with all parties in group sessions, helping the group to effectively 
move through the problem-solving steps of the meeting to reach the 
agreed upon goal.
    Mediation: Mediation is a process in which a neutral, a 
mediator, assists open discussion between parties in dispute and 
helps them come to a mutually agreeable solution. A mediator has no 
authority to impose a decision on the parties.
    Mini-trial: A mini-trial is a process in which a neutral 
presides over the presentation of highlights of the parties' cases 
by the parties' attorneys to the parties' principals and may include 
witness testimony. The neutral engages the parties in litigation 
risk analysis and facilitates settlement discussions.
    Negotiated rulemaking: Negotiated rulemaking is a process in 
which representatives of those interests that would be affected by a 
rule convene to consider and discuss issues for the purpose of 
reaching consensus in the development of a rule.
    Negotiation: Negotiation is a bargaining relationship between 
two or more parties. The parties join in a temporary relationship to 
educate each other about their needs and interests and then exchange 
specific resources or promises that will resolve one or more issues. 
Almost all of the ADR procedures in which the parties maintain 
control over the outcome of the conflict are variations of 
    Neutral: A neutral is an individual who functions specifically 
to aid the parties in resolving a dispute. The neutral may be a 
Federal employee or any private individual who is acceptable to the 
parties. A neutral may not have financial, official, or personal 
conflict of interest with respect to the dispute, unless the 
interest is disclosed in writing to the parties and all parties 
agree that the neutral may serve.
    Ombuds: An ombuds receives complaints and questions from 
individuals concerning the functioning of an entity, works for the 
resolution of particular issues, and where necessary, makes 
recommendations for the improvement of the general administration of 
the entity.
    Policy Dialogue: A policy dialogue is a process designed to 
facilitate voluntary, interactive exchanges of views and information 
among interested groups and individuals working towards consensus 
solutions to policy issues. A policy dialogue is a flexible tool to 
enable all parties to participate in a non-adversarial setting to 
define and resolve issues. The product of a policy dialogue can be a 
report, a set of recommendations, agreements in principle, exchanges 
of information, or other ways of addressing the issues involved.
    Roster: A roster is a list of persons qualified to provide 
services as neutrals and may indicate the person's area of ADR 
    Settlement Judge: A settlement judge is an administrative law 
judge, a Board of Contract Appeals judge, or Dispute Resolution 

[[Page 69125]]

trained in alternative dispute resolution techniques who consults 
with the parties and assists them in resolving a dispute instead of 
using a formal administrative hearing.

Appendix II--Examples of ADR Initiatives

    ADR is working to bring parties together and to resolve 
disputes, resulting in less adversarial relationships and a better 
work environment. Employees who have been made aware of ADR 
techniques are routinely beginning to see them as desirable 
alternatives to traditional, more adversarial approaches. The 
Department has used ADR in various administrative and programmatic 
areas. Some examples of ADR initiatives that reflect the 
Department's commitment to collaborative decision-making include the 

Civil Enforcement

    Administrative Law Judges at the U.S. Coast Guard will continue 
to use ADR as appropriate. The ADR techniques may include early 
neutral evaluation, mediation, and settlement judges.

Contract and Procurement

    Currently, the Department is reviewing its Transportation 
Acquisition Regulations and its Transportation Acquisition Manual 
and may incorporate an ``ADR first'' approach for agency protests, 
GAO protests, and appeals from contracting officers' final 
decisions. The Department encourages parties to call upon the 
Department's Board of Contract Appeals to provide early neutral 
evaluation and other ADR assistance on all acquisition controversies 
including bid protests and performance disputes.
    In FY 1999, the Department's Board of Contract Appeals used 
alternative means of dispute resolution, including mini-trials and 
appointment of an independent neutral, in seven cases. Settlement 
was reached in six of the cases. The Board also provided early 
neutral evaluation on contract dispute matters.
    The Federal Aviation Administration (FAA) issued a final rule on 
the procedural requirements of the Office of Dispute Resolution for 
Acquisition (ODRA) for the resolution of both bid protests and 
contract disputes. This dispute resolution process emphasizes the 
use of ADR as the primary means to resolve disputes. ODRA makes its 
Dispute Resolution Officers available as ADR neutrals with the 
concurrence of the parties. In addition, ODRA has established a web 
site, (www.faa.gov/agc/) which includes a guide to the conduct of 
protests and contract disputes and information about specific cases. 
In 1999, ODRA employed ADR techniques in 42 cases (bid protests and 
contract disputes) helping the parties to reach settlements in 95% 
of the contract disputes and 53% of bid protests.
    The U.S. Coast Guard has established a Solicitation Ombuds and 
is completing development of an agency protest procedure. 
Contracting professionals consider ADR in resolution of pre- and 
post-award procurement disputes, and innovative processes, including 
contractor partnering, as appropriate. To enhance employee 
awareness, the Coast Guard provided ADR training to the chiefs of 
its contracting offices and its procurement attorneys.


    In response to Section 1309 of the Transportation Efficiency Act 
for the 21st Century, the Federal Highway Administration has 
requested that the U.S. Institute for Environmental Conflict 
Resolution provide assistance in developing a national policy and 
set of procedures that define a project level ADR system. This 
system will be applied during the National Environmental Policy Act 
(NEPA) evaluation process to specific transportation projects. The 
ADR system will be used to help stakeholders identify, avoid, and 
resolve potential problems and issues related to specific projects 
that would, if not addressed, cause delays during the NEPA process, 
fragment agency reviews, and make project sponsors and the lead 
agencies vulnerable to legal liability.
    The Maritime Administration (MARAD) is using ADR to resolve 
environmental litigation. In two cases filed pursuant to the 
Comprehensive Environmental Response, Compensation, and Liability 
Act of 1980, MARAD successfully engaged in mediation to resolve the 
cases. In both instances, external mediators were used and mediation 
lasted for 3 days. All parties saved on the costs of litigation by 
using mediation. Savings to the government included: expedited 
discovery; reduced travel expenses; elimination of court costs; 
elimination of trial preparation costs; reduced witness costs; and 
elimination of protracted procedural costs. Moreover, the United 
States was successful in greatly reducing the assessment against the 
government by convincing the parties in both cases that the 
government's defenses to higher allocation were credible.


    As the Department links the budget process to results by using 
performance measures to make resource decisions, the validity, 
reliability, timeliness, and comparability over time of performance 
data will be a challenge to ADR programs. The Bureau of 
Transportation Statistics will assist in evaluation efforts. For 
example, the Bureau has provided statistical support to the ONEDOT 
Sharing Neutrals Program, assisting in defining what data to collect 
and designing a data collection and evaluation system.

Labor-Management Partnership

    The Transportation Partnership Council (TPC), under Executive 
Order 12871, provides a mechanism for the representation of over 
30,000 bargaining unit employees and both career mid-level managers 
and top DOT and operating administration executives to fully discuss 
issues of importance. TPC objectives include facilitating the 
formation and operation of partnerships in the Operating 
Administrations. TPC has fostered informal dispute resolution and 
resolution and interest-based bargaining throughout DOT. For 
example, FAA-National Air Traffic Controller Association used 
interest-based bargaining in term negotiations, Research and Special 
Programs Administration's Volpe National Transportation Systems 
Center and National Association of Government Employees used a 
collaborative approach on term negotiations, FRA-Association of 
Federal Government Employees used interest-based bargaining and 
partnerships with industry labor-management teams, and the U.S. 
Coast Guard and International Metal Trades-Aerospace Workers 
completed negotiations using an interest-based process.

Negotiated Rulemaking

    The Department was the first Federal agency to use negotiated 
rulemaking back in 1983, and has a long, successful experience with 
the process. In the early 1980s, we advised employees throughout the 
Department of the process and factors to consider in deciding 
whether to use it. This led to the first use of the process for an 
FAA rulemaking on flight and duty time rules. Building on this 
success, we continued to provide information about and encourage the 
use of negotiated rulemaking. For example, in 1991, we circulated a 
memorandum providing more detail on the factors to consider in 
determining whether a particular rulemaking was an appropriate 
candidate for a regulatory negotiation in light of our experience 
and, in 1996, we circulated a memorandum that made a number of 
suggestions for cutting the costs of conducting negotiated 
rulemakings. Furthermore, senior political leadership has been 
briefed on the process and two DOT attorney have taught a negotiated 
rulemaking course attended by many DOT attorneys at the Department 
of Justice's National Advocacy Center.
    Many of the Department's operating administrations have used 
negotiated rulemaking. The Federal Highway Administration conducted 
a regulatory negotiation on incorporation of physical fitness 
determinations into the commercial drivers license process for state 
enforcement of medical certification. The National Highway Traffic 
Safety Administration conducted negotiations on standards for 
headlight aimability, specifically for altering lower beam pattern, 
and reached consensus that led to a final rule. The Research and 
Special Programs Administration (RSPA) conducted negotiations and 
reached consensus on a recommended rule on the qualifications for 
personnel performing certain safety related functions for pipelines. 
In addition, RSPA successfully conducted a regulatory negotiation to 
develop recommendations for alternative safety standards for 
preventing and mitigating unintentional releases during the 
unloading of cargo tank motor vehicles in liquefied compressed gas 
service, such as propane and anhydrous ammonia. The U.S. Coast Guard 
used negotiated rulemaking to develop a rule on the operating 
schedule for a series of drawbridges over the Chicago River to 
balance the recreational boaters' need for lake access with the need 
to reduce the adverse impact of bridge openings on downtown motor 
vehicle traffic. Although unsuccessful in achieving consensus, the 
process did aid in developing the rule. Finally, the FAA and the 
Federal Railroad Administration have established standing advisory 
committees that they use to negotiate rules.

[[Page 69126]]

Process Design

    In 1998, the FAA established the Office of Administrative 
Dispute Resolution under the Associate Chief Counsel for ADR, within 
the FAA Chief Counsel's Office. This Office is responsible for 
implementing provisions of the Administrative Dispute Resolution Act 
within the FAA. This Office provides leadership and support for new 
and existing ADR programs within FAA headquarters and the regions. 
It provides ADR briefings and orientation, assistance with system 
design, and instruction in conflict management, mediation, and 
advocacy in the ADR process. The Office has also worked with the 
FAA's Center for Management to develop training in mediation 
techniques for supervisors and managers.
    The U.S. Coast Guard is establishing an information cross-flow 
ADR awareness program which will align with the Department's policy, 
with integrated training components to continue and expand current 
Coast Guard ADR uses. In furtherance of this, a core group has met 
and will continue to meet on a quarterly basis pending full stand-up 
of Dispute Resolution Council activities. The U.S. Coast Guard 
anticipates that the program will ultimately provide and continually 
invigorate awareness across directorate and operational lines, and 
enhance coordination with other modes to optimize program 
effectiveness and share and exchange information and 


    The Department, under its ONE DOT initiative, has been 
developing a DOT-wide mediation program to help resolve Equal 
Employment Opportunity complaints. The department has trained 
employees to serve as neutral mediators to assist in the consensual 
resolution of those complaints and has established a pilot DOT-wide 
Sharing Neutrals Program for the mediation of discrimination 
complaints in the Washington, DC area. The U.S. Coast Guard, FAA, 
and Federal Railroad Administration also established mediation 
programs for discrimination complaints. In 1999, FAA mediated 123 
complaints of discrimination. Mediation resolved 71 (58%) of the 
disputes. This resolution rate is up from 43% in 1998. With regard 
to other workplace issues, one office within the FAA has established 
an Early Resolution System and successfully resolved 16 out of 18 
    The FAA also established two new programs at its William J. 
Hughes Technical Center in Atlantic City, N.J., under which 
employees and management mediate workplace disputes. One program 
includes the bargaining unit employees of the American Federation of 
Government Employees, Local 200. The other involves the non-
bargaining unit employees.
    The FAA and the National Air Traffic Controllers Association 
(NATCA) established an ADR Working Group in accordance with their 
collective bargaining agreement. NATCA represents approximately 
25,000 air traffic employees. The ADR Working Group has produced 
three Memoranda of Agreement designed to encourage joint problem 
solving, and to assist in the resolution of current disputes and the 
avoidance of future disputes between the FAA, NATCA, and NATCA 
members. The first program is designed to eliminate the backlog of 
current grievances through an upper level joint review process. The 
second program is a Neutral Evaluation pilot being conducted in two 
FAA regions. This program uses a neutral evaluator, generally an 
arbitrator with labor law expertise, to give the parties a realistic 
assessment of the respective merits of the grievance cases that 
would normally proceed to arbitration. The goal is to enhance 
opportunities for settlement, and the neutral is available to move 
the process into mediation should the parties so desire. The third 
program consists of a grievance mediation process and a facility-to-
facility review process. Both processes are designed to resolve 
disputes early, so as to reduce the negative consequences of 

[FR Doc. 00-29099 Filed 11-14-00; 8:45 am]