[Federal Register Volume 65, Number 249 (Wednesday, December 27, 2000)]
[Notices]
[Pages 81858-81860]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-32946]


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ENVIRONMENTAL PROTECTION AGENCY

[FRL-6923-1]


Policy on Alternative Dispute Resolution

AGENCY: Environmental Protection Agency.

ACTION: Notice.

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SUMMARY: This document publishes the final policy of the United States 
Environmental Protection Agency (EPA) regarding the use of alternative 
dispute resolution (``ADR''). A draft of this policy was published in 
the Federal Register (65 FR 59837) on October 6, 2000, for public 
comment. The public comment period closed on December 5, 2000, and no 
comments were received. Therefore, EPA is republishing this policy as a 
final policy. Nothing in this document creates any right or benefit by 
a party against the United States.

FOR FURTHER INFORMATION CONTACT: W. Robert Ward, Dispute Resolution 
Specialist, U.S. EPA, Ariel Rios Building, 1200 Pennsylvania Avenue, 
NW., (MC 2310A), Washington, DC, 20460; (202) 564-2922; [email protected].

SUPPLEMENTARY INFORMATION: This final policy is consistent with the 
Administrative Dispute Resolution Act of 1996 (Public Law 104-320, Oct. 
19, 1996, 5 U.S.C. 571-583), which requires, in part, that each federal 
agency adopt a policy that addresses the use of ADR. It is also 
consistent with provisions of the Civil Justice Reform Act (Public Law 
101-650, Dec. 1, 1990, 28 U.S.C. 471-482), the Alternative Dispute 
Resolution Act of 1998 (Public Law 105-315, Oct. 30, 1998, 28 U.S.C. 
651-658), the Regulatory Negotiation Act of 1996 (Pub. Law 104-320, 
Oct. 19, 1996, 5 U.S.C. 561-570); the Federal Acquisition Streamlining 
Act (Pub. Law 103-355, Oct. 13, 1994, 41 U.S.C. 405); the Contracts 
Disputes Act (41 U.S.C. 601-613); Executive Order 12988, ``Civil 
Justice Reform,'' February 5, 1996; Executive Order 12979, ``Agency 
Procurement Protests,'' October 25, 1995; the Federal Acquisition 
Regulation (48 CFR 33.204); Equal Employment Opportunity Commission 
regulations (29 CFR part 1614); Presidential Memorandum, ``Designation 
of Interagency Committees to Facilitate and Encourage Use of 
Alternative Means of Dispute Resolution and Negotiated Rulemaking,'' 
May 1, 1998; and the Report of the National Performance Review, 
``Creating a Government that Works Better and Costs Less,'' September 
7, 1993.

EPA Policy on Alternative Dispute Resolution

Purpose

    The U.S. Environmental Protection Agency (EPA or the Agency) 
strongly supports the use of alternative dispute resolution (ADR) to 
deal with disputes and potential conflicts. ADR refers to voluntary 
techniques for preventing and resolving conflict with the help of 
neutral third parties. Experience within this Agency and elsewhere 
shows that ADR techniques for preventing and resolving conflicts can 
have many benefits including:
     Faster resolution of issues;
     More creative, satisfying and enduring solutions;
     Reduced transaction costs;
     Fostering a culture of respect and trust among EPA, its 
stakeholders, and its employees;
     Improved working relationships;

[[Page 81859]]

     Increased likelihood of compliance with environmental laws 
and regulation;
     Broader stakeholder support for agency programs; and
     Better environmental outcomes.
    ADR techniques can be effective in both internal Agency 
disagreements and external conflicts. ADR allows the Agency to have a 
more productive work environment and to work better with State, Tribal, 
and local governments, the regulated community, environmental and 
public health organizations, and the public. This policy is intended to 
be flexible enough to respond to the full range of disputes EPA faces, 
and to achieve these objectives:
     Promote understanding of ADR techniques;
     Encourage routine consideration of ADR approaches to 
anticipate, prevent, and resolve disputes;
     Increase the use of ADR in EPA business;
     Highlight the importance of addressing confidentiality 
concerns in ADR processes;
     Promote systematic evaluation and reporting on ADR at EPA; 
and
     Further the Agency's overall mission through ADR program 
development.

What does EPA mean by the term ``ADR'?

    EPA adopts the definition of ADR in the Administrative Dispute 
Resolution Act of 1996 (ADRA): ``any procedure that is used to resolve 
issues in controversy, including but not limited to, conciliation, 
facilitation, mediation, fact finding, minitrials, arbitration, and use 
of ombuds, or any combination thereof.'' 5 U.S.C. 571(3). All these 
techniques involve a neutral third party. Depending on the 
circumstances of a particular dispute, neutrals may be Agency employees 
or may come from outside EPA. Typically, all aspects of ADR are 
voluntary, including the decision to participate, the type of process 
used, and the content of any final agreement.

In what types of situations does EPA encourage the use of ADR?

    EPA encourages the use of ADR techniques to prevent and resolve 
disputes with external parties in many contexts, including 
adjudications, rulemaking, policy development, administrative and civil 
judicial enforcement actions, permit issuance, protests of contract 
awards, administration of contracts and grants, stakeholder 
involvement, negotiations, and litigation. In addition, EPA encourages 
the use of ADR techniques to prevent and resolve internal disputes such 
as workplace grievances and equal employment opportunity complaints, 
and to improve labor-management partnerships.
    While ADR may be appropriate in any of these contexts, the decision 
to use an ADR technique in a particular matter must reflect an 
assessment of the specific parties, issues, and other factors. 
Considerations relevant to the appropriateness of ADR for any 
particular matter include, at a minimum, the guidelines in section 572 
of the ADRA and any applicable Agency guidance on particular ADR 
techniques or ADR use in specific types of disputes. ADR program staff 
at EPA headquarters and in the Regions can help the parties assess 
whether and which form of ADR should be used in a particular matter.

How is EPA organized to support ADR?

    EPA's Conflict Prevention and Resolution Center (CPRC) in the 
Office of General Counsel (OGC) provides ADR services to the entire 
Agency. The Agency's Dispute Resolution Specialist, designated under 
the ADRA, is the head of the CPRC. Because the Dispute Resolution 
Specialist's responsibilities include development and implementation of 
all Agency ADR policy, Headquarters Offices and Regions are expected to 
coordinate with the CPRC from the earliest stages in developing any 
program-specific ADR guidance and in addressing issues during ADR 
policy implementation. The CPRC also will administer Agency-wide ADR 
programs, coordinate case management and evaluation, and provide 
support to program-specific ADR activities. Building on existing ADR 
efforts at EPA, the CPRC assists other Agency offices in developing 
effective ways to anticipate, prevent, and resolve disputes, and makes 
neutral third parties more readily available for those purposes.
    Other EPA offices, including the Office of Enforcement and 
Compliance Assurance, and the Office of Administrative Law Judges, are 
using ADR to resolve conflicts between the Agency and regulated 
entities. The Office of Policy, Economics and Innovation and the Office 
of Cooperative Environmental Management, in partnership with many EPA 
program offices, use ADR to provide opportunities for stakeholders to 
contribute to the design of Agency actions that affect them.
    EPA Regions have ADR programs that meet their particular needs. For 
example, in some cases, EPA Regions have identified staff experts to 
coordinate workplace, enforcement, and other ADR activities. EPA 
Regions have also used internal and external neutral third parties to 
foster stakeholder involvement, resolve workplace disputes, help in 
organizational problem-solving, and mediate enforcement cases. The CPRC 
will continue to provide support to existing Regional ADR programs and 
is available to help in developing new ADR efforts.
    Anyone interested in exploring the possibility of ADR in an EPA 
matter can contact the CPRC, a Regional ADR program, or a program 
office with an established ADR function for information and assistance 
regarding mechanics, process design, or advice on what to expect from 
an ADR process.

How should confidentiality be handled in ADR processes?

    A thorough discussion of confidentiality is often critical to 
success in ADR. It is EPA's policy to maintain confidentiality in ADR 
processes consistent with the ADRA and other applicable law. Section 
574 of the ADRA reflects a balancing of the need for confidentiality in 
ADR with the dual goals of open government and effective law 
enforcement. Other federal laws may impact the confidentiality of 
information in specific cases, potentially compelling disclosure or 
enhancing protection against disclosure (e.g., Inspector General Act, 
Freedom of Information Act, Privacy Act). The CPRC can provide further 
information on authorities that may impact confidentiality in a federal 
ADR process.
    The confidentiality needs and concerns of the parties must be 
discussed early in every ADR process. EPA staff, the parties, and the 
neutral third party should be aware of how confidentiality operates in 
the context of federal ADR. Within this context, the parties and the 
neutral third party should work together to establish a common 
understanding of how confidentiality protections apply in a specific 
process. In most cases, this understanding should be recorded in a 
written confidentiality agreement. This initial work will benefit all 
parties by clarifying expectations regarding confidentiality before 
full initiation of the ADR process.

How will EPA promote commitment to and awareness of ADR within the 
Agency?

    Information Sources: The CPRC, in consultation with Agency program 
offices and Regions, will compile existing information and develop 
additional information on ADR practice at EPA and will make this 
information available to EPA personnel through a

[[Page 81860]]

website and through the CPRC. Information may include model agreements 
to mediate, case selection criteria, descriptions of ADR processes, 
mechanisms for accessing external neutral third parties, case studies, 
guidance on confidentiality and evaluating ADR processes, directories 
of EPA ADR contacts, bibliographies, and links to external sources of 
information.
    Training: The Agency strongly encourages all EPA personnel to learn 
about ADR. Training is crucial not only for those selected to serve as 
in-house neutrals, but also for negotiators and others who need to 
understand how ADR can enhance negotiation and agency decision making. 
The Dispute Resolution Specialist will identify and recommend relevant 
ADR training. Training sources may include existing EPA training 
programs, training sponsored by other agencies, newly developed 
courses, and commercially available training.
    This policy affirms a goal of EPA's Labor/Management Partnership 
Strategic Plan (Spring 2000) to train line managers, first line 
supervisors, Federal union representatives and other employees in 
consensual methods of dispute resolution such as ADR and interest-based 
negotiation. Finally, the Agency will add skills in negotiation and 
alternative dispute resolution to its inventory of desirable management 
characteristics used to prepare and select managers for the Senior 
Executive Service.
    Mentoring: The Agency encourages those with ADR experience to share 
their expertise with other Agency personnel. Mentoring and apprenticing 
can strengthen EPA's ADR program by expanding the number of staff with 
ADR skills, increasing opportunities to practice ADR techniques, and 
providing for exchange between more and less experienced ADR 
professionals.
    Funding: Costs associated with ADR processes, including fees for 
external neutral third parties, are typically paid in whole or in part 
by the sponsoring EPA office. Depending on the circumstances, other 
parties or offices also contribute. The Agency expects each program 
office at Headquarters and each Region to demonstrate a commitment to 
ADR by making funds available for ADR processes.

How will EPA measure the success of its ADR programs?

    Many federal agencies have shown significant time and money savings 
from the use of ADR and have received intangible benefits such as 
improved relationships and broader stakeholder support for their 
programs. Evaluation is an important way to identify these savings and 
benefits and is key to systematic improvement of ADR programs. Through 
evaluation, EPA is committed to measuring the success of its ADR 
programs and continually improving them to better meet the needs of EPA 
offices, Regions, and external stakeholders.
    Several EPA offices and Regions have already evaluated their ADR 
efforts. To build on these evaluations and to strengthen the evaluation 
component of ADR practice across the Agency, the CPRC, consulting with 
internal and external stakeholders, will develop an evaluation system 
for ADR at EPA. The evaluation system will include goals and both 
qualitative and quantitative measures of success.

Where can I get additional information or help with ADR at EPA?

    Additional information on ADR contacts within EPA, topics covered 
in this policy, and others, may be obtained from the CPRC at (202) 564-
2922; [email protected].

What is the legal authority for this policy?

    This policy satisfies the requirement of the Administrative Dispute 
Resolution Act of 1996, 5 U.S.C. 571-583, that each federal agency 
adopt a policy that addresses the use of ADR. The policy is also 
consistent with the following federal statutes, regulations, and 
orders:
     Regulatory Negotiation Act of 1996, 5 U.S.C. 561-570.
     Civil Justice Reform Act, 28 U.S.C. 471-482.
     Alternative Dispute Resolution Act of 1998, 28 U.S.C. 651-
658.
     Federal Acquisition Streamlining Act, 41 U.S.C. 405.
     Contracts Disputes Act, 41 U.S.C. 601-613.
     Federal Acquisition Regulation, 48 CFR 33.103 & 33.204.
     Federal Sector Equal Employment Opportunity Regulations, 
29 CFR part 1614.
     Civil Justice Reform, Executive Order 12988, 61 FR 4729 
(Feb. 5, 1996).
     Agency Procurement Protests, Executive Order 12979, 60 FR 
55171 (Oct. 27, 1995).
     Presidential Memorandum, ``Designation of Interagency 
Committees to Facilitate and Encourage Use of Alternative Means of 
Dispute Resolution and Negotiated Rulemaking,'' May 1, 1998.

    Dated: December 18, 2000.
Carol Browner,
Administrator.
[FR Doc. 00-32946 Filed 12-26-00; 8:45 am]
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