Alternative Dispute Resolution, 63458-63460 [E8-25398]

Agencies

• DEPARTMENT OF ENERGY

[Federal Register Volume 73, Number 207 (Friday, October 24, 2008)]
[Notices]
[Pages 63458-63460]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-25398]



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DEPARTMENT OF ENERGY


Alternative Dispute Resolution

AGENCY: Department of Energy.

ACTION: Notice of Revised Policy Statement.

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SUMMARY: On October 24, 1995, the Department of Energy (DOE) published 
an interim Statement of Policy on Alternative Dispute Resolution (ADR) 
(60 FR 54482) to further its commitment to the use of ADR for resolving 
issues in controversy in a fair, timely, and cost efficient manner, and 
to comply with the Administrative Dispute Resolution Act (ADRA), 5 
U.S.C. 571 et seq. Today, DOE issues a revised Statement of Policy on 
Alternative Dispute Resolution to reaffirm its commitment to the use of 
ADR, including the use of Environmental Conflict Resolution (ECR) and 
other collaborative processes that may be utilized to prevent or avoid 
potential conflicts.

DATES: This Revised Policy Statement is effective: October 24, 2008.

FOR FURTHER INFORMATION CONTACT: Kathleen Binder, Director, Office of 
Conflict Prevention and Resolution, U.S. Department of Energy, 
Washington, DC 20585, (202) 586-6972 or by e-mail at 
Kathleen.binder@hq.doe.gov.

SUPPLEMENTARY INFORMATION: The ADRA, 5 U.S.C. 571 et seq., authorizes 
and encourages federal agencies to employ consensual methods of dispute 
resolution as alternatives to litigation. Under the ADRA as enacted in 
1990 and amended in 1996,\1\ a federal agency is required to:
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    \1\ Public Law No. 101-552, section 3, as amended by Public Law 
104-320, section 4(a); see 5 U.S.C. 571 note.
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    1. Adopt a policy on the use of ADR techniques;
    2. Designate a senior official as a dispute resolution specialist;
    3. Establish training programs in the use of dispute resolution 
methods; and
    4. Review the standard language in agency contracts, grants or 
other agreements, to determine whether to include a provision on ADR.
    Congress enacted the ADRA to reduce the time, cost, inefficiencies 
and contentiousness that may be associated with litigation and other 
adversarial dispute resolution mechanisms. Since the enactment of ADRA, 
the federal government as a whole, and DOE in particular, have 
significantly increased the use of ADR techniques. However, from time 
to time there are efforts initiated to further increase the use of ADR. 
For example, on May 1, 1998, the President issued a memorandum 
directing the Attorney General to lead an Interagency Alternative 
Dispute Resolution Working Group to promote and facilitate federal ADR. 
The Working Group established four sections to represent the major 
substantive areas of ADR application: Enforcement, claims against the 
government, contracts and procurement, and workplace conflict. A 
Working Group Steering Committee was established to represent nearly 60 
federal agencies.
    Pursuant to section 11 of the Technology Transfer Commercialization 
Act of 2000, Public Law No. 106-404, each DOE laboratory and research 
facility appointed a technology partnership ombudsman to hear and help 
resolve complaints from outside organizations regarding the policies 
and actions of each such laboratory or facility with respect to 
technology partnerships, patents, and technology licensing.
    On November 28, 2005, the Director of the Office of Management and 
Budget (OMB) and the Chairman of the Council on Environmental Quality 
(CEQ) issued a memorandum directing federal agencies to increase the 
use of ECR and collaborative problem solving. The memorandum also 
directs that agencies report to CEQ and OMB annually regarding their 
progress in increasing the use of ECR.
    This revised policy makes several changes to the 1995 policy to 
take account of the actions mentioned above. These changes include 
broadening the scope of ADR by including ECR, which is referenced in 
sections A, B, C, and D of the revised policy, as well as adding 
coordination of the Technology Transfer Ombudsman Program to the role 
of the Dispute Resolution Specialist. This revised Statement of Policy 
supersedes the 1995 Notice of Interim Policy Statement.
    Accordingly, DOE adopts the revised Statement of Policy that 
follows.
    The Secretary of Energy has approved the issuance of this Notice.

    Issued in Washington, DC, on October 19, 2008.
David R. Hill,
General Counsel.

 Department of Energy Statement of Policy on Alternative Dispute 
Resolution

A. Introduction

    This Statement of Policy addresses the use of Alternative Dispute 
Resolution (ADR) by the Department of Energy (DOE), as required by the 
Administrative Dispute Resolution Act (ADRA), 5 U.S.C. 571 et seq. This 
Statement of Policy also broadens the scope of ADR as utilized at DOE 
to include Environmental Conflict Resolution (ECR) and other 
collaborative processes utilized to prevent or avoid potential 
conflicts. The ADRA authorizes and encourages agencies to use mediation 
and other consensual methods of dispute resolution as alternatives to 
traditional dispute resolution processes. The ADRA requires agencies to 
designate a Dispute Resolution Specialist, establish a policy 
addressing the use of ADR, review contracts and grants for appropriate 
inclusion of ADR clauses and provide for regular training on ADR.
    The initiatives required under the ADRA are also supplemented by:
    (i) The Negotiated Rulemaking Act, 5 U.S.C. 561 et seq., which 
establishes a framework for use of negotiated rulemaking to increase 
acceptability and improve the substance of rules; and
    (ii) The Technology Transfer Commercialization Act of 2000, Public 
Law No. 106-404, which in section 11 calls for the appointment of a 
Technology Partnerships Ombudsman at each DOE National Laboratory to 
hear and help resolve complaints from outside organizations regarding 
the policies and actions of each laboratory with respect to technology 
partnerships.
    In addition, on November 28, 2005, a memorandum was issued by the 
Director of the Office of Management and Budget and the Chairman of the 
Council on Environmental Quality directing federal agencies to increase 
the use of ECR and collaborative problem solving (ECR Memorandum).

B. Policy

    DOE is committed to the use of ADR, including ECR and other 
collaborative processes, as a management tool to prevent or minimize 
disputes, or to resolve disputes at the earliest stage possible in an 
expeditious, cost effective and mutually acceptable manner. In 
furtherance of this commitment to the use of ADR, and in compliance 
with the ADRA, DOE's Dispute Resolution Specialist is responsible for 
encouraging and coordinating the ADR efforts of DOE, formulating DOE-
wide ADR policies, and disseminating information about DOE's ADR 
activities, including providing assistance, consultation and training 
within DOE on ADR matters. In state and federal court litigation, ADR 
procedures may be mandated by applicable statutes, court orders, rules 
and procedures.
    DOE supports the voluntary use of ADR, including ECR and other 
collaborative processes, e.g., mediation, early neutral evaluation, 
partnering, facilitated negotiations, the use of an

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ombudsman, and arbitration, where appropriate. The use of binding 
arbitration is not appropriate except in very limited circumstances and 
is subject to compliance with 5 U.S.C. 575(c). Prior to pursuing the 
use of binding arbitration, DOE's Office of Conflict Prevention and 
Resolution, which is an office within the Department's Office of the 
General Counsel, must be contacted to determine whether binding 
arbitration previously has been approved for such circumstances or to 
advise on whether to seek approval.
    The ECR Memorandum, referenced previously, defines ECR as ``third-
party assisted conflict resolution and collaborative problem solving in 
the context of environmental, public lands, or natural resources issues 
or conflicts, including matters relating to energy, transportation, and 
land use.'' The ECR Memorandum also recognizes that there are a broad 
array of partnerships, cooperative arrangements and unassisted 
negotiations used by Federal agencies to manage and implement their 
programs. DOE has adopted this broader view of ECR, and defines ECR to 
include all types of collaborative problem solving processes used to 
prevent or resolve an environmental conflict regardless of whether a 
third party is used in these processes.
    In addition, DOE supports the use of negotiated rulemaking, which 
is a process that brings together representatives of various interest 
groups and a federal agency, as appropriate to negotiate the text of a 
proposed rule.

C. Applications

    DOE will undertake to use appropriate ADR, including ECR and other 
collaborative processes, in three main areas.

1. Dispute Prevention

    DOE believes that ADR can be used as a management tool to prevent 
conflicts from escalating into more serious disputes. Mediation and 
other forms of ADR may be applied to workplace related issues early in 
the process to promote a humane and productive workplace and to prevent 
and reduce grievances, as well as EEO and whistleblower complaints.
    DOE also may consider, when appropriate, the use of partnering with 
its contractors to prevent disputes between DOE and its contractors. 
This technique, used successfully by DOE, other federal agencies, and 
private sector companies, fosters cooperative efforts to carry out the 
objectives of the contract and helps to manage conflict by identifying 
potential disputes and planning in advance for their resolution.
    DOE may utilize ECR, including various collaborative problem 
solving techniques, when appropriate, to prevent or resolve conflicts 
that may arise over the actual, potential or perceived impacts of DOE 
operations on the environment and natural resources by working with 
DOE's stakeholders to address issues of concern as early in the 
decision-making process as is practicable. In using ECR, DOE should 
seek to apply the principles set forth in Appendix A.
    DOE also encourages the use, when appropriate, of facilitated 
negotiations, which are negotiations with groups of representatives 
with potentially disparate interests striving to reach a consensual 
decision on a policy issue. This includes use of negotiated rulemaking 
in the development of proposed rules.

2. Early Intervention

    Where disputes cannot be avoided, the use of ADR can promote prompt 
and efficient resolution and avoid the need for a more formal 
disposition, such as administrative proceedings and litigation.

3. Litigation

    a. The ADRA encourages federal agencies to use ADR to resolve 
disputes involving their administrative programs when all participants 
voluntarily agree. DOE will pursue the appropriate use of ADR in 
administrative litigation, and will consider the use of ADR in such 
cases, when requested by a party to the litigation, or by the 
administrative body hearing the case.
    b. In addition, DOE will provide assistance to the Department of 
Justice, as requested, in support of DOJ Order 1160.1, ``Promoting the 
Broader Appropriate Use of Alternative Dispute Resolution Techniques.''
    c. Finally, DOE will encourage and assist its management and 
operating contractors and their counsel in applying ADR and ECR 
techniques in addressing potential or actual claims or litigation.
    See Appendix B for a list of references and resources relating to 
ADR.

D. Role of the Dispute Resolution Specialist

    The Dispute Resolution Specialist, who also acts as the Director of 
the Office of Conflict Prevention and Resolution, serves as a resource 
to all DOE components and contractors. The Dispute Resolution 
Specialist shall:
    1. Identify categories of disputes and potential disputes that are 
suitable for ADR;
    2. Assist in identifying neutrals for various ADR techniques;
    3. Facilitate the use of ADR by DOE and establish pilot projects;
    4. Participate in the Interagency ADR Working Group Steering 
Committee to promote the use of ADR in the Executive Branch, as 
directed in the Presidential Memorandum issued on May 1, 1998;
    5. Facilitate the use of ECR for preventing or resolving 
environmental conflicts that are associated with DOE plans and 
operations;
    6. Assist DOE in building capacity to utilize ECR to identify, 
prevent, or resolve environmental conflicts associated with its plans 
and operations;
    7. Identify categories of agreements, contracts and memoranda of 
understanding which may be suitable for inclusion of standard ADR 
clauses;
    8. Promote the use of negotiated rulemaking;
    9. Develop ADR education/training programs for DOE personnel. This 
shall include:
    a. Introductory training to ensure that executives, managers and 
supervisors understand ADR and its potential benefits;
    b. Training for personnel having a role in dispute management 
(e.g., labor/management relations, contracts, litigation, 
administrative adjudication, and environmental matters);
    10. Institute procedures to support more systematic use of ADR;
    11. Disseminate information on the use of ADR;
    12. Ensure that procedures are in place for evaluation of DOE's use 
of ADR, including ADR results and resolutions, satisfaction of the 
participants, and estimated cost savings and other benefits;
    13. Coordinate the Technology Partnerships Ombudsman Program; and
    14. Encourage DOE contractors to use ADR, including ECR, as 
appropriate.

E. Periodic Evaluation

    DOE periodically will evaluate the ADR program and the steps taken 
toward its effective implementation.
    DOE encourages comments on the use of ADR, including ECR and other 
collaborative processes, from both within and outside DOE.

Appendix A

Basic Principles for Department of Energy Engagement in Environmental 
Conflict Resolution and Collaborative Problem Solving

    Department and/or contractor personnel should:

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    Informed Commitment--Confirm willingness and availability of 
appropriate agency leadership and staff at all levels to commit to 
principles of engagement, and ensure commitment to participate in 
good faith with open mindset to new perspectives.
    Balanced, Voluntary Representation--Ensure balanced inclusion of 
affected/concerned interests; all parties should be willing and able 
to participate and select their own representatives.
    Group Autonomy--Engage with all participants in developing and 
governing process; including choice of consensus-based decision 
rules; seek assistance as needed from impartial facilitator/mediator 
selected by and accountable to all parties.
    Informed Process--Seek agreement on how to share, test and apply 
relevant information (scientific, cultural, technical, etc.) among 
participants; ensure relevant information is accessible and 
understandable by all participants.
    Accountability--Participate in the process directly, fully, and 
in good faith; be accountable to all participants, as well as agency 
representatives and the public.
    Openness--Ensure all participants, and, as appropriate, the 
public, are fully informed in a timely manner of the purpose and 
objectives of process; communicate agency authorities, requirements 
and constraints; uphold confidentiality rules and agreements as 
required for particular proceedings.
    Timeliness--Ensure timely decisions and outcomes.
    Implementation--Ensure that decisions are implementable 
consistent with federal law and policy. Parties also should commit 
to identify roles and responsibilities necessary to implement 
agreement; should agree in advance on the consequences of a party 
being unable to provide necessary resources or to implement 
agreement; and should take steps to obtain resources necessary to 
implement any agreement.

Appendix B

List of References and Other Resources Relating to ADR, ECR and Other 
Collaborative Processes

References

1. Administrative Dispute Resolution Act of 1996, 5 U.S.C. 571 et 
seq.
2. The Technology Transfer Commercialization Act of 2000, Public Law 
No. 106-404
3. Joint Memorandum from Office of Management and Budget and the 
Council on Environmental Quality Joint Memorandum on Environmental 
Conflict Resolution, November 2005, (https://www.whitehouse.gov/ceq/
joint-statement.html)
4. The Negotiated Rulemaking Act, 5 U.S.C. 561 et seq.
5. Department of Justice Order 1160.1, Promoting the Broader 
Appropriate Use of Alternative Dispute Resolution Techniques, http:/
/www.usdoj.gov/crt/adr/agorder.html

Other Resources

1. DOE's Office of Conflict Prevention and Resolution Web site, 
https://www.gc.doe.gov/disputeResolution.htm
2. U.S. Department of Justice's Interagency Alternative Dispute 
Resolution Working Group, https://www.adr.gov/
3. The Institute for Environmental Conflict Resolution, https://
www.ecr.gov

[FR Doc. E8-25398 Filed 10-23-08; 8:45 am]
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