[Federal Register Volume 61, Number 150 (Friday, August 2, 1996)]
[Notices]
[Pages 40424-40429]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19623]
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DEPARTMENT OF THE INTERIOR
Office of the Secretary
RIN 1094-AA-45
Use of Alternative Dispute Resolution
AGENCY: Office of the Secretary.
ACTION: Notice of final Alternative Dispute Resolution Policy and
opportunity for comment.
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SUMMARY: The Department of the Interior (Department) has developed this
final Alternative Dispute Resolution (ADR) policy (Final ADR Policy) to
implement a comprehensive program within each of its bureaus and
offices (bureaus). This Final ADR Policy also addresses the Negotiated
Rulemaking Act, Public Law No. 101-648. The Department is adopting this
Final ADR Policy to apply tested practices and techniques to selected
program disputes. The Department, through its bureaus, will implement
ADR pilot programs and other program initiatives in an effort to
establish a baseline of experience in the practical uses of ADR. The
Department will continue to assess the results of the ADR initiatives
in conjunction with both external and internal comments received, after
publication of a Final ADR Policy in the Federal Register. The
Department seeks comments from the public, including, among others,
those persons whose activities the Department regulates, on any aspect
of this Final ADR Policy and its implementation, and those persons who
have engaged in or may in the future engage in ADR processes with the
Department. At the end of the 60-day comment period, the Department
will consider issues raised by interested persons and may modify the
Final ADR Policy based on public comment.
DATES: Comments must be received on or before October 1, 1996.
ADDRESSES: Written comments should be mailed or delivered to James P.
Terry, Deputy Director, Office of Hearings and Appeals, U.S. Department
of the Interior, 4015 Wilson Boulevard, Arlington, Virginia 22203.
FOR FURTHER INFORMATION CONTACT:
James P. Terry, Deputy Director, and the Alternate Dispute Resolution
Specialist, OHA (703) 235-3810.
SUPPLEMENTARY INFORMATION:
I. Department of the Interior Policy on ADR
The Department's ADR policy, first promulgated June 13, 1994, as an
interim ADR policy for a period of 2 years, authorized and encouraged
bureaus within the Department to employ consensual methods of dispute
resolution as alternatives to litigation. 59 FR 30368. Under the
Interim ADR Policy, bureaus were required: (1) To designate a senior
official as a Bureau Dispute Resolution Specialist (BDRS); (2) to
establish training programs in the use of dispute resolution methods;
(3) to adopt a plan on the use of ADR techniques; and (4) to review the
standard language in bureau contracts, grants, or other agreements, to
determine whether to include a provision on ADR. Bureaus were also
required to consult with the Department's Dispute Resolution Council
(IDRC) on the implementation of their ADR plans.
Additionally, the Interim ADR Policy required each bureau to adopt
a formal policy as to how it intended to implement ADR in each of the
following areas: (a) Formal and informal adjudications; (b)
rulemakings; (c) Enforcement actions; (d) issuing and revoking licenses
or permits; (e) Contract administration; (f) Litigation brought by or
against the Department; and (g) other Departmental action.
The Secretary promulgated the Interim ADR Policy to reduce the
time, cost, inefficiencies, and contentiousness that are too often
associated with litigation and other adversarial dispute mechanisms.
Moreover, experience at other Federal agencies has demonstrated that
ADR can help achieve mutually acceptable solutions to disputes more
effectively than either litigation or administrative adjudication. In
fact, Vice President Al Gore recommended in September 1993 that Federal
agencies ``increase the use of alternative means of dispute
resolution.'' National Performance Review, Recommendation REG06 (Sept.
7, 1993).
While ADR techniques have proven to be useful in resolving serious
conflicts, the day-to-day operations of the Department's bureaus should
also provide conflict avoidance methods, wherever possible. Moreover,
the Interim ADR Policy, specifically cautioned that:
[A bureau] shall consider not using a dispute resolution proceeding
if--
[[Page 40425]]
(1) A definitive or authoritative resolution of the matter is
required for precedential value, and such a proceeding is not likely
to be accepted generally as an authoritative precedent;
(2) The matter involves or may bear upon significant questions
of Government policy that require additional procedures before a
final resolution may be made, and such a proceeding would not likely
serve to develop a recommended policy for the [bureau];
(3) Maintaining established policies is of special importance,
so that variations among individual decisions are not increased and
such a proceeding would not likely reach consistent results among
individual decisions;
(4) The matter significantly affects persons or organizations
who are not parties to the proceeding;
(5) A full public record of the proceeding is important, and a
dispute resolution proceeding cannot provide such a record; and
(6) The [bureau] must maintain continuing jurisdiction over the
matter with authority to alter the disposition of the matter in the
light of changed circumstances, and a dispute resolution proceeding
would interfere with the [bureau's] fulfilling that requirement.
The decision whether to use ADR, however, remains within each
bureau's discretion, and participation in ADR processes is by mutual
consent of the disputants.
The Interim ADR Policy fostered the use of ADR by ensuring
appropriate protection of parties' and neutrals' communication. The ADR
policy, however, is not a statute exempting disclosure under the
Freedom of Information Act (FOIA). 5 U.S.C. 552. To establish a
baseline of understanding, concerned parties should establish
confidentiality guidelines consistent with FOIA requirements before
entering into negotiations.
Within the limitations set forth in the Interim ADR Policy, and
elsewhere, the Department plans to establish, in the Final ADR Policy,
those contexts in which the use of ADR facilitates fairer, faster, or
more rational resolutions of disputes than present dispute resolution
methods provide. Additionally, the Department will continue to review
the Final ADR Policy. On the basis of this evaluation, the Department
will consider modifying any of its current procedures or rules in the
future, as appropriate, to allow for greater use of ADR.
II. Negotiated Rulemaking Act
In enacting the Negotiated Rulemaking Act, Public Law No. 101-648,
Congress indicated its concern that traditional notice and comment
rulemaking procedures may discourage agreement among the potentially
affected parties and the Federal Government. Congress addressed this
concern by purposefully designing the Negotiated Rulemaking Act's
procedures to facilitate the cooperative development of regulations by
interested persons and agencies. Moreover, Vice President Gore's report
recently recommended improving agencies' regulatory systems by
``[e]ncourag[ing] agencies to use negotiated rulemaking more frequently
in developing new rules.'' National Performance Review, Recommendation
REG03 (1993).
Negotiated rulemaking (Reg-Neg) does not replace the traditional
notice and opportunity for public comment rulemaking. Rather, Reg-Neg
supplements the more traditional process by developing consensus around
the candidate proposed rule before an agency publishes it in the
Federal Register. Combining early consensus-building and information-
gathering with an opportunity for broad public consideration, the Reg-
Neg process meets the prescription of the Administrative Procedure Act,
5 U.S.C. 551 et seq., and can facilitate more effective regulatory
development and regulations. Moreover, on September 30, 1993, President
Bill Clinton issued a memorandum in conjunction with the issuance of
Exec. Order No. 12866 on regulatory planning and review. The memorandum
required each Department to identify to the Office of Information and
Regulatory Affairs at least one rulemaking within the upcoming year to
be developed through Reg-Neg rulemaking or to explain why negotiated
rulemaking would not be feasible, 58 FR 52391 (Oct. 7, 1993).
Decisionmakers should view Reg-Neg as one of a variety of
information-gathering and consensus-building or consultative processes
used to achieve effective, efficient, rational, and fair agency policy.
Although the Negotiated Rulemaking Act does not address less formal
decisionmaking processes, including, among others, policy roundtables
and public meetings, such nonadversarial processes may help gather
information to assist the Department in policy development.
Participation in informal regulatory development processes can
require significant commitment of resources on the part of all
participants, including Federal agencies. The Department's experience,
however, has shown that consensus-building techniques can result in
better policy, reduce the high rate of litigation, and lower the costs
of program implementation for the Department's bureaus and the
regulated community.
III. Final Policy
A. Application of the Final ADR Policy
The Department encourages the effective use of ADR and Reg-Neg to
the fullest extent compatible with existing law, and the Department's
resources and missions. Based on long experience, the Department
recognizes that the use of consensus-building techniques and
nonadversarial planning processes can increase the wisdom, efficiency,
equity, and long-term stability of Departmental decisions.
The Final ADR Policy is intended to govern both the programmatic
side of the Department's broad responsibility, as well as many of the
human resources aspects. With regard to human resources, the Final ADR
Policy embraces the ADR policy of the Department's Office for Equal
Opportunity. The use of ADR is expected to be very useful in matters
involving equal employment opportunity. Workplace dispute issues beyond
those governed by regulations issued by the Merit Systems Protection
Board will also be governed by this policy. Where the use of ADR would
impede effective supervisory action in routine matters of employee
discipline or performance appraisal, supervisors may elect not to use
ADR.
B. Purpose of the Final ADR Policy
The Department has developed this Final ADR Policy in response to
the experience gained under the Interim ADR Policy. The Final ADR
Policy encourages the Department's bureaus to continue to identify
disputes amenable to ADR and to use ADR, whenever practicable. After
testing ADR methods in a variety of contexts during the 2-year interim
period, the Department, through the IDRC, has assessed the
appropriateness of the use of ADR and determined which program areas
could most benefit from the institutionalization of ADR processes.
Existing bureau ADR efforts should continue as this final policy is
implemented.
The Department's Final ADR Policy is also designed to disseminate
knowledge about ADR both within the Department and to those whom the
Department serves, as well as to introduce new ADR initiatives and to
provide guidelines for bureaus to apply in the implementation of ADR
pilot programs. These initiatives will produce a baseline of experience
that will be useful in successfully implementing the Department's Final
ADR Policy. Without the full commitment and cooperation of all bureaus,
the Department will lose a valuable opportunity to learn what
[[Page 40426]]
works, what does not, and how best to capture potential benefits from
ADR use.
C. Implementation of the Final ADR Policy
1. Role of the Department's Dispute Resolution Specialist
Pursuant to the guidance promulgated by the Secretary in the June
13, 1994, Interim ADR Policy, the Director, Office of Hearings and
Appeals (OHA), was appointed to serve as the Department's Dispute
Resolution Specialist (DRS). This high level, Department official was
appointed as the DRS in order: (1) To facilitate intra-Departmental
coordination and communication; (2) to ensure consistent, quality
training; (3) to establish minimum qualifications for mediators,
arbitrators, and certain Departmental employees with ADR
responsibilities; and (4) to reduce administrative redundancy. Under
the Final ADR Policy, the Director, OHA, will continue these
responsibilities. The DRS will maintain an ``open door'' policy,
welcoming inquiries from and offering assistance to the bureaus and
interested persons. During the period that the Final ADR Policy is
being implemented, ongoing input from the public is encouraged. Despite
this focal point for ADR activity, the Department's Final ADR Policy
encourages decentralized decisionmaking to the greatest extent
possible.
2. Role of IDRC
In order to keep the Department's bureaus informed during the
implementation of the Final ADR Policy, the DRS shall, within 120 days
after publication of the Department final policy, convene the IDRC to
address progress by the bureaus in implementing their ADR programs.
Composed of the Department's Assistant Secretaries, Solicitor, and the
Director of the Office of Regulatory Affairs (ORA), or their respective
designees, and chaired by the DRS, the IDRC shall monitor and evaluate
the Department's use of ADR and Reg-Neg and assist in intra-
Departmental policy and process coordination. The IDRC shall act as an
information clearinghouse, recommend personnel training courses in ADR
techniques and program design, and act as the liaison between the
Department and the Federal Mediation and Conciliation Service.
3. Training in ADR
The Department recognizes, consistent with the philosophy of the
National Performance Review, that bureaus can best evaluate and develop
specific ADR programs and initiatives to meet bureau needs. Therefore,
each bureau head has appointed a BDRS. The BDRSs have been trained in
ADR consensus-building techniques, conflict resolution, and program
design.
The DRS recommended appropriate BDRS training, with such training
completed during the interim policy period. Additionally, the DRS shall
provide ADR training opportunities for selected groups of senior
managers of the Department, whose job responsibilities include
determining or influencing how disputes will be managed. The DRS will
also identify opportunities for advanced training in facilitation and
mediation for Judges and attorneys within OHA, as appropriate.
4. Implementation of Bureau ADR Plans
The BDRS shall fully implement the bureau's alternate dispute
resolution plan (ADRP) in the 12 months following promulgation of the
Final ADR Policy. To facilitate the monitoring and evaluation of the
bureau's initiative(s), the BDRS should address, in his/her yearly
review, among other topics, the: (1) goals; (2) objectives; (3)
timetables; (4) implementation strategy; (5) monitoring criteria; and
(6) evaluation methodology. It is permissible if two or more bureaus
adopt the same objectives and goals.
In selecting appropriate ADR pilot initiatives, the bureaus have
focused, for example, on a particular category of dispute (e.g.,
contract cases), on a variety of disputes involving a particular
organizational segment or region of the agency, or on a particular ADR
process that would be applied in a variety of disputes across the
bureau. In selecting a focus for an ADR pilot initiative, the
Department has encouraged bureaus to consider using some of the
disputes that are central to the Department's mission. While bureaus
have been advised not to avoid identifying personnel and small contract
disputes, for example, as candidates for a pilot initiative, they have
been encouraged not to focus exclusively on these areas so that the
effectiveness of ADR for a bureau can be judged in a programmatic
context.
Some offices of the Department, such as the Office of the
Solicitor, are assisting bureaus in carrying out their programs rather
than conducting programs of their own. For the purposes of this policy,
such offices should assist bureaus in implementing ADR in a
programmatic context.
Consistent with the many activities and functions of the Department
and the Federal Acquisition Regulations' recognition of the usefulness
of ADR in Government contracts, each BDRS, or appointed designee,
should review categories of all proposed new and renewal contracts,
agreements, permits, memoranda of understanding, and other documents,
to determine whether to include ADR provisions. Moreover, the
Department encourages the use of ADR in contact disputes prior to these
disputes reaching the Interior Board of Contract Appeals. To avoid
duplication of effort by bureau personnel, the Office of the Solicitor,
working with the Department's senior procurement official, will develop
standardized ADR-related clauses that bureaus can use in contracts and
other documents.
The Department expects, as well, that those bureaus with
comparatively more dispute resolution experience will, on a voluntary
basis, assist bureaus less familiar with dispute resolution in the
development of the ADRP. The Department expects, as well, that inter-
bureau initiatives such as ``one stop permitting,'' for example, be
coordinated with a BDRS. Each BDRS and others involved with the
implementation of the final policy are encouraged to consult with other
Federal agencies, and others in the dispute resolution field in the
development of their ADR initiatives. The DRS is available to provide
the names of contact persons within various Federal agencies who have
effectively utilized ADR methods in resolving disputes.
Judges within OHA have been encouraged to utilize, where
appropriate, ADR methods, including, among others, the use of
settlement judges, minitrials, and the referral of litigants to
mediation or arbitration in advance of a judge's consideration of a
case on the merits.
D. Monitoring and Evaluation
Each BDRS shall monitor the implementation of his or her bureau's
dispute resolution initiatives on an ongoing basis, using the criteria
developed in their ADRP. Each BDRS shall submit to the IDRC, through
the proper bureau head and Assistant Secretary, every year, an
evaluation of the bureau's progress toward meeting the goals,
objectives, and timetables on the basis of the methodology outlined in
the ADRP. The evaluation should also discuss any unanticipated issues
that each bureau may have encountered and how those issues have been or
are being resolved.
A BDRS, in conjunction with the IDRC, shall catalogue and evaluate
the bureaus' respective initiatives and experiences under their ADRP in
its
[[Page 40427]]
yearly report to the Secretary. This evaluation, coordinated by the
DRS, as chair of the IDRC, will focus on the categories of disputes and
types of DR methods that were most helpful in achieving resolution of
disputes.
Moreover, because the usefulness of ADR to the Department is
dependent on the processes' ability to facilitate rational, fair,
efficient, and stable solutions among the Department's bureaus, the
regulated community, and the public, evaluation of the final policy
should receive the benefit of public comment and participation. A
concluding section of the evaluation should explain how dispute
resolution is being integrated on a permanent basis into each bureau's
program offices. This process of review, evaluation, and modification
will allow each bureau to systematically and regularly improve its ADR
programs.
E. Negotiated Rulemaking
Pursuant to Exec. Order No. 12866 and the Presidential memorandum
on negotiated rulemaking, issued September 30, 1993, the Department
will use, where appropriate, Reg-Neg or other consensus-building
techniques to develop rules that are fair, technically accurate, and
clear. Each bureau will evaluate, prior to drafting or amending any
regulation, whether Reg-Neg is appropriate for developing or amending
that regulation and will explain, on the regulatory alert form
submitted to the ORA, the basis for determining whether or not the
regulation will be developed or amended using Reg-Neg.
In explaining whether Reg-Neg should be used for a particular
rulemaking, each bureau should address at least the following:
(1) Whether there exists a small and identifiable group of
constituents (the ``parties'') with significant interests in the
rulemaking, so that all reasonably foreseeable significant interests
can be represented by individuals in the negotiation;
(2) Whether the parties believe it to be in their best interest to
enter into a negotiated rulemaking;
(3) Whether the parties are willing and able to enter into
negotiated rulemaking in good faith;
(4) Whether any single party has, or is perceived to have, the
ability to dominate negotiations, thereby making a compromise solution
unlikely;
(5) Whether there are clear and identifiable issues that are agreed
to be ripe for a negotiated solution;
(6) Whether a negotiated solution would require one or more parties
to compromise a fundamental value;
(7) Whether the use of negotiated rulemaking is reasonably likely
to result in an agreement or course of action satisfactory to all
parties; and
(8) Whether there are legal deadlines or other legal issues that
either mitigate against negotiation or provide incentives to reach a
negotiated solution.
If a bureau has decided to enter into a negotiated rulemaking, it
will prepare a brief report describing the goals, objectives,
anticipated parties, and projected timetables of the negotiation.
Throughout the negotiation, the bureau will prepare brief periodic
reports discussing the progress toward achieving the goals, objectives,
and timetables of the negotiation, and highlighting any successes and
unanticipated events or issues encountered during the negotiation.
These reports shall be submitted to ORA and the IDRC.
At the end of the initial 12 months under the Final ADR Policy,
ORA, the DRS, and IDRC shall prepare information to be included in the
yearly ADR report to the Secretary evaluating the Department's
experiences with negotiated rulemaking. This report will focus upon the
types of policies, categories of rulemakings, and methods of
negotiation that were most successful in achieving customer
satisfaction and the cost-effective implementation of mutually
agreeable rulemakings. This report will be based upon evaluations
conducted by the Bureaus and submitted to ORA, IDRC, and the DRS for
review and assimilation into the report to the Secretary.
IV. Executive Order No. 12866
This final policy was not subject to Office of Management and
Budget review under Executive Order No. 12866.
Dated: July 15, 1996.
Bonnie R. Cohen,
Assistant Secretary--Policy, Management and Budget.
Appendix I--Glossary of ADR Terms
The following terms are commonly associated with ADR and negotiated
rulemaking and contain many recognized forms of ADR. They are provided
for the reader's convenience and have been adapted from the ADR Act
(now expired), the Negotiated Rulemaking Act, and other sources.
Alternative means of dispute resolution--an inclusive term used to
describe a variety of problem-solving processes that are used in lieu
of litigation or administrative adjudication to resolve issues in
controversy, including but not limited to, settlement negotiations,
conciliation, facilitation, mediation, fact-finding, minitrials, and
arbitration, or any combination thereof.
Arbitration--a process, quasi-judicial in nature, whereby a dispute
is submitted to an impartial and neutral third party who considers the
facts and merits of a case and decides the matter. To be revised
consistent with 5 U.S.C. 588, et seq.
Conciliation--procedures intended to help establish trust and
openness between the parties to a dispute.
Dispute--an issue which is material to a decision concerning an
administrative or mission-related program of an agency and with which
there is disagreement between the agency and a person or persons who
would be substantially affected by the decision.
Dispute resolution communication--any oral or written communication
prepared for the purposes of a dispute resolution proceeding, including
any memoranda, notes, or work product of the neutral, parties, or
nonparty participants. A written agreement to enter into a dispute
resolution proceeding, or a final written agreement or arbitration
award reached as a result of a dispute resolution proceeding, is not
dispute resolution communication.
Dispute resolution proceeding--any process in which an alternative
means of dispute resolution is used to resolve an issue in controversy
in which a neutral is appointed and specified parties participate.
Facilitation--involves the assistance of a third party who is
impartial toward the issues under discussion and who works with all
participants in a whole group session providing procedural directions
on how the group can effectively move through the problem-solving steps
of the meeting and arrive at the jointly agreed upon goal.
Fact-finding--involves the use of neutrals acceptable to all
parties to determine disputed facts. This can be particularly useful
where disagreements about the need for or the meaning of data are
impeding resolution of a dispute, or where the disputed facts are
highly technical and would be better resolved by experts. Fact-finding
usually involves an informal presentation of its case by each party.
The neutral(s) then provides an advisory opinion on the disputed facts,
which can be used by the parties as a basis for further negotiation.
Litigation--a dispute brought in a court of law to enforce a
statute, right, or legally created cause of action that will be decided
based upon legal principles or evidence presented.
[[Page 40428]]
Mediation--involves the intervention into a dispute of an impartial
and neutral third party, who has no decisionmaking authority but who
will procedurally assist the parties to reach voluntarily an acceptable
settlement of issues in dispute.
Minitrial--a structured settlement process in which the disputants
agree on a procedure for presenting their cases in highly abbreviated
versions (usually no more than a few hours or a few days) to senior
officials for each side with authority to settle the dispute. This
process allows those in senior positions to see firsthand the relative
strengths and weaknesses of their cases and can serve as a basis for
more fruitful negotiations. Often, a neutral presides over the hearing,
and may, subsequently, mediate the dispute or help parties evaluate
their cases.
Negotiating rulemaking--rulemaking accomplished through the use of
a negotiated rulemaking committee.
Negotiated rulemaking committee--an advisory committee established
by an agency in accordance with the Negotiated Rulemaking Act and the
Federal Advisory Committee Act to consider and discuss issues for the
purpose of reaching a consensus in the development of a proposed rule.
Negotiation--involves a bargaining relationship between two or more
parties who have either perceived or actual conflicts of interest. The
participants join voluntarily in a temporary relationship to educate
each other about their needs and interest and 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 upon or elaborations of the
negotiation process.
Neutral--an individual, who with respect to an issue in
controversy, functions specifically to aid the parties in resolving the
controversy. The individual may be a permanent or temporary officer or
employee of the Federal Government, or any other individual who is
acceptable to the parties to a dispute resolution proceeding. A neutral
shall have no official, financial, or personal conflict of interest
with respect to the dispute, unless such interest is fully disclosed in
writing to all parties and all parties agree that the neutral may
serve.
Ombudsman--a person designated to address selected categories of
disputes by investigation the circumstances that gave rise to the
matter; and based upon the investigative findings, recommending
corrective action, as appropriate.
Roster--a list of persons qualified to provide services as neutrals
that is maintained by the agency.
Appendix II--Examples of ADR Initiatives
All bureaus and offices within the Department have been involved in
implementing ADR processes. Some of the more prominent examples of ADR
initiatives that reflect the Department's commitment to ADR include:
In 1990, the Department disseminated to each of the Department's
bureaus and offices an ADR survey designed to identify program areas
that could be amendable to ADR techniques. Among the questions asked
were: (1) The categories of disputes in which the organization is
typically involved; (2) the number of cases during the prior 2 fiscal
years that were docketed, settled, and litigated, and the approximate
cost involved; and (3) the organization's experience to date in
utilizing ADR techniques.
The Department initially conducted an orientation program on ADR.
Included in the orientation program was Senator Charles Grassley, one
of the sponsors of the ADR Act, together with representatives of the
Administrative Conference of the United States (ACUS) and the Federal
Mediation and Conciliation Service (FMCS).
The Department then conducted a one day training program on ADR.
The training focused on the various methods of ADR and included
representatives from the U.S. Army Corps of Engineers, the
Environmental Protection Agency, the Department of Health and Human
Services, and the Department of Transportation, each of whom shared
their experiences in developing successful ADR programs.
The Department's Office for Equal Opportunity (OEO) provided
training in basic and advanced mediation skills for OEO and personnel
program officials and Equal Employment Opportunity (EEO) counselors.
OEO also issued a directive to bureaus and offices providing guidance
on the development and implementation of ADR pilot programs consistent
with 29 CFR Part 1614. Under this directive each bureau and office is
to submit an ADR pilot program plan delineating specific actions to be
taken to incorporate ADR techniques into the EEO complaints process.
The Department encourages the use of ADR in the resolution of
discrimination complaints and has designated a Departmental EEO/ADR
Coordinator and directed each bureau to designate a Bureau EEO/ADR
Coordinator.
The Department designated the Bureau of Reclamation (Reclamation)
as a pilot bureau in fiscal year 1993 for the purpose of testing the
effectiveness of mediation in the resolution of EEO complaints and
administrative grievances.The bureau has relied exclusively on contract
neutrals to serve as mediators for all disputes referred for ADR.
Mediation has also been utilized by Reclamation in other program areas,
including resource management and contract administration.
The Department's Office of Hearings and Appeals has implemented ADR
as an alternative to administrative litigation. The Board of Indian
Appeals and the administrative law judges vested with authority for
adjudicating Indian probate cases have encouraged the use of settlement
agreements to resolve these matters. Under 43 CFR 4.207, administrative
law judges have been authorized to affect compromise settlements in
probate actions where the parties concerned agree to compromise and
where the judge establishes that all necessary conditions have been
met. The Board of Contract Appeals has been effectively implementing
ADR processes over the last 3 years in its cases. At the time a case is
docketed, the Board issues an order notifying the parties to the
dispute of the availability and benefits of ADR. Through actively
promoting ADR as a viable alternative, the Board has settled a majority
of its cases without the need to conduct a hearing.
The Bureau of Land Management (BLM) has recognized the benefits of
ADR techniques, and, in partnership with the Bowie State University's
Center for Alternative Dispute Resolution, has provided basic Conflict
Management ADR training to Personnelists and EEO practitioners, as well
as to key management officials.
The Minerals Management Service (MMS) has a rich history of ADR.
MMS examples include (1) a process targeted at settling outstanding and
contentious mineral royalty claims which has reduced appeals and
litigation and increased royalty collections, and (2) more than a
decade of conflict resolution training for offshore minerals management
personnel and establishment and conduct of a joint review panel for
constituent review of environmental documents.
During the interim period that is just ending, the U.S. Fish and
Wildlife Service has recorded particular success in implementing its
ADR plan. Out of 41 instances of utilizing ADR, 33 (80 percent) have
been successful. The unsuccessful instances resulted in further
processing under EEO procedures. Mediation was conducted
[[Page 40429]]
by EEO counselors in all instances except for three which were
processed through the Federal Mediation and Conciliation Service. The
cost and time savings were significant with the avoidance of
expenditures in connection with EEO investigations, hearings,
transcripts, and staff time.
The program Department-wide thus far has focused on EEO and related
personnel matters. Only MMS, among the bureaus, has concentrated on
resolving conflicts with outside groups. The interim policy signed by
the Secretary in June 1994, upon which the final policy is based, made
clear that the program is to be broader based. The IDRC will continue
to encourage other bureaus to adopt the MMS model for resolving
conflicts with constituents, customers and outside groups.
[FR Doc. 96-19623 Filed 8-1-96; 8:45 am]
BILLING CODE 4310-79-M
