[Federal Register: December 27, 2000 (Volume 65, Number 249)]
[Notices]
[Page 81858-81860]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27de00-80]
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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; adr@epa.gov.
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
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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; adr@epa.gov.
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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