[Federal Register Volume 65, Number 195 (Friday, October 6, 2000)]
[Notices]
[Pages 59837-59840]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-25749]
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ENVIRONMENTAL PROTECTION AGENCY
[FRL-6882-8]
Policy on Alternative Dispute Resolution
AGENCY: Environmental Protection Agency.
ACTION: Notice.
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SUMMARY: This document publishes the draft final policy of the United
States Environmental Protection Agency (EPA) regarding the use of
alternative dispute resolution (``ADR''). The Agency is requesting
public comment on this draft document. This document replaces the
Interim Statement of Policy on Alternative Dispute Resolution (65 FR
13383) which was issued on March 13, 2000.
The draft final policy is published in the Federal Register to
affirm EPA's commitment to the use of ADR in Agency activities. The
draft final policy discusses the types of situations in which ADR
should be considered, how EPA is organized to support ADR,
confidentiality of information in ADR processes, efforts to promote a
commitment to and awareness of ADR within the Agency, and how the
success of ADR will be measured. Nothing in this document creates any
right or benefit by a party against the United States.
DATES: Comments must be submitted on or before December 5, 2000.
ADDRESSES: Please address comments to W. Robert Ward, Dispute
Resolution Specialist, by mail at Conflict Prevention and Resolution
Center, U.S. EPA, Ariel Rios Building, 1200
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Pennsylvania Avenue, NW., (MC 2310A), Washington, DC 20460. Comments
sent by overnight delivery services or by courier should be addressed
to W. Robert Ward, Conflict Prevention and Resolution Center, U.S. EPA,
Ariel Rios Building, Room 6330F, 1200 Pennsylvania Avenue, N.W. 20004.
Comments may also be submitted by fax at (202) 501-1715, or by e-mail
at [email protected].
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 draft final policy is consistent with
the Administrative Dispute Resolution Act of 1996 (Pub. L. 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 (Pub. L.
101-650, Dec. 1, 1990, 28 U.S.C. 471-482), the Alternative Dispute
Resolution Act of 1998 (Pub. L. 105-315, Oct. 30, 1998, 28 U.S.C. 651-
658), the Regulatory Negotiation Act of 1996 (Pub. L. 104-320, Oct. 19,
1996, 5 U.S.C. 561-570); the Federal Acquisition Streamlining Act (Pub.
L. 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.
On March 13, 2000, EPA published an Interim Statement of Policy on
Alternative Dispute Resolution in the Federal Register. The document
published today supercedes and replaces the Interim Statement of
Policy. EPA requested public comment on the Interim Statement of Policy
as input for the development of this draft final policy. The Agency
received one comment in response to the Interim Statement of Policy.
The comment was generally supportive of the application of ADR in the
environmental arena. It included suggestions regarding the
qualifications for neutral third parties selected to assist in
resolving complex environmental disputes. It also supported the concept
of flexible ADR techniques, including the use of minitrials in
appropriate circumstances. The draft final policy does not address
neutral third party qualification criteria explicitly, although the
Agency recognizes that the success of an ADR proceeding often depends
upon the selection of a neutral third party with the correct
combination of background, skills, and experience for the particular
matter. The Agency chose not to establish neutral third party
qualification criteria in the context of the draft final policy because
this policy is intended to apply to a wide range of ADR activities. The
Agency believes that desirable qualification criteria may differ based
on the type of dispute, the participating parties, and the type of ADR
technique being used. With regard to the use of minitrials and other
flexible ADR techniques, the draft final policy explicitly authorizes
the use of minitrials among a variety of ADR techniques.
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;
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 USC 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
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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 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
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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.
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
Request for Public Comment
The Environmental Protection Agency invites public comment on this
draft document. Comments should be received by December 5, 2000.
Dated: September 29, 2000.
Carol Browner,
Administrator.
[FR Doc. 00-25749 Filed 10-5-00; 8:45 am]
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