[Federal Register Volume 65, Number 221 (Wednesday, November 15, 2000)]
[Notices]
[Pages 69121-69126]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-29099]
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DEPARTMENT OF TRANSPORTATION
[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.
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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
circumstances.
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.
SUPPLEMENTARY INFORMATION:
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
laws.
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.
Background
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.
Training
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.
Evaluation
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.
Resources
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
offices.
Confidentiality
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
confidential.
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
faith.
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
non-binding.
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
parties.
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
negotiation.
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
expertise.
Settlement Judge: A settlement judge is an administrative law
judge, a Board of Contract Appeals judge, or Dispute Resolution
Officer
[[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
following:
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.
Environmental
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.
Evaluation
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
implementations.
Workplace
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
cases.
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
conflict.
[FR Doc. 00-29099 Filed 11-14-00; 8:45 am]
BILLING CODE 4910-62-P