The Congressional Record is a unique source of public documentation. It started in 1873, documenting nearly all the major and minor policies being discussed and debated.
“ADMINISTRATIVE DISPUTE RESOLUTION ACT OF 1996” mentioning the U.S. Dept of Labor was published in the House of Representatives section on pages H5786-H5789 on June 4, 1996.
The publication is reproduced in full below:
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ADMINISTRATIVE DISPUTE RESOLUTION ACT OF 1996
Mr. GEKAS. Mr. Speaker, I move to suspend the rules and pass the bill
(H.R. 2977) to reauthorize alternative means of dispute resolution in the Federal administrative process, and for other purposes, as amended.
The Clerk read as follows:
H.R. 2977
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Administrative Dispute Resolution Act of 1996''.
SEC. 2. AMENDMENT TO DEFINITIONS.
Section 571 of title 5, United States Code, is amended--
(1) in paragraph (3)--
(A) by striking ``, in lieu of an adjudication as defined in section 551(7) of this title,'';
(B) by striking ``settlement negotiations,''; and
(C) by striking ``and arbitration'' and inserting
``arbitration, and use of ombudsmen''; and
(2) in paragraph (8)--
(A) in subparagraph (B) by striking ``decision,'' and inserting ``decision;''; and
(B) by striking the matter following subparagraph (B).
SEC. 3. AMENDMENTS TO CONFIDENTIALITY PROVISIONS.
(a) Limitation of Confidentiality Application to Communication.--Section 574(a) of title, 5, United States Code, is amended in the matter before paragraph (1) by striking ``any information concerning''.
(b) Alternative Confidentiality Procedures.--Section 574(d) of title 5, United States Code, is amended--
(1) by inserting ``(1)'' after ``(d)''; and
(2) by adding at the end thereof the following new paragraph:
``(2) To qualify for the exemption established under subsection (j), an alternative confidential procedure under this subsection may not provide for less disclosure than the confidential procedures otherwise provided under this section.''.
(c) Exemption From Disclosure by Statute.--Section 574(j) of title 5, United States Code, is amended by striking ``This section'' and inserting ``This section (other than subsection
(a))''.
SEC. 4. AMENDMENT TO REFLECT THE CLOSURE OF THE
ADMINISTRATIVE CONFERENCE.
(a) Promotion of Administrative Dispute Resolutions.--Section 3(a)(1) of the Administrative Dispute Resolution Act
(5 U.S.C. 581 note; Public Law 101-552; 104 Stat. 2736) is amended by striking ``the Administrative Conference of the United States and''.
(b) Compilation of Information.--
(1) In general.--Section 582 of title 5, United States Code, is repealed.
(2) Technical and conforming amendment.--The table of sections for chapter 5 of title 5, United States Code, is amended by striking the item relating to section 582.
(c) Federal Mediation and Conciliation Service.--Section 203(f) of the Labor Management Relations Act, 1947 (29 U.S.C. 173(f)) is amended by striking ``the Administrative Conference of the United States and''.
SEC. 5. AMENDMENTS TO SUPPORT SERVICE PROVISION.
Section 583 of title 5, United States Code, is amended by inserting ``State, local, and tribal governments,'' after
``other Federal agencies,''.
SEC. 6. AMENDMENTS TO THE CONTRACT DISPUTES ACT.
Section 6 of the Contract Disputes Act of 1978 (41 U.S.C. 605) is amended--
(1) in subsection (d) by striking the second sentence and inserting: ``The contractor shall certify the claim when required to do so as provided under subsection (c)(1) or as otherwise required by law.''; and
(2) in subsection (e) by striking the first sentence.
SEC. 7. AMENDMENTS ON ACQUIRING NEUTRALS.
(a) Expedited Hiring of Neutrals.--
(1) Competitive requirements in defense agency contracts.--Section 2304(c)(3)(C) of title 10, United States Code, is amended by striking ``agency, or'' and inserting ``agency, or to procure the services of an expert or neutral for use''.
(2) Competitive requirements in federal contracts.--Section 303(c)(3)(C) of the Federal Property and Administrative Services Act of 1949 (41 U.S.C. 253(c)(3)(C)), is amended by striking ``agency, or'' and inserting ``agency, or to procure the services of an expert or neutral for use''.
(b) References to the Administrative Conference of the United States.--Section 573 of title 5, United States Code, is amended--
(1) by striking subsection (c) and inserting the following:
``(c) In consultation with other appropriate Federal agencies and professional organizations experienced in matters concerning dispute resolution, the Federal Mediation and Conciliation Service shall--
``(1) encourage and facilitate agency use of alternative means of dispute resolutions; and
``(2) develop procedures that permit agencies to obtain the services of neutrals on an expedited basis.''; and
(2) in subsection (e) by striking ``on a roster established under subsection (c)(2) or a roster maintained by other public or private organizations, or individual''.
SEC. 8. PERMANENT AUTHORIZATION OF THE ALTERNATIVE DISPUTE
RESOLUTION PROVISIONS OF TITLE 5, UNITED STATES
CODE.
The Administrative Dispute Resolution Act (Public Law 101-552; 104 Stat. 2747; 5 U.S.C. 581 note) is amended by striking section 11.
SEC. 9. AUTHORIZATION OF APPROPRIATIONS.
(a) In General.Subchapter IV of chapter 5 of title 5, United States Code, is amended by adding at the end thereof the following new section:
``Sec. 584. Authorization of appropriations
``There are authorized to be appropriated such sums as may be necessary to carry out the purposes of this subchapter.''.
(b) Technical and Conforming Amendment.--The table of sections for chapter 5 of title 5, United States Code, is amended by inserting after the item relating to section 583 the following:
``584. Authorization of appropriations.''.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from Pennsylvania [Mr. Gekas] and the gentleman from Rhode Island [Mr. Reed] will each be recognized for 20 minutes.
The Chair recognizes the gentleman from Pennsylvania [Mr. Gekas].
Mr. GEKAS. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I rise in support of H.R. 2977 and urge its adoption by the House. The Administrative Dispute Resolution Act was signed into law by President Bush back in 1990. From what we were able to discern over the 5 years of its operation, it did a world of good.
This administrative resolution syndrome is one in which Federal agencies are given an additional tool to try to settle disputes that might arise between agencies or between an agency and a contractor, shall we say, a government contractor, or a private citizens group, or anyone who runs into and becomes embroiled in a dispute with a Federal agency. Hence, the administrative procedure that was set up by the bill that we have referred to would set up a procedure for that purpose.
Well, this authority ran out in October of last year. We in the Subcommittee on Commercial and Administrative Law held an oversight hearing in December 1995, and I speak for the gentleman from Rhode Island, both he and I were sufficiently impressed with the cost saving and efficiency displayed in the various mechanisms employed by the Administrative Dispute Resolution Act that we, almost on the spot, reendorsed the concept of having these agencies being able to filter out disputes of this type before they should reach a court jurisdiction. So we proceeded to work together, and the product that we have before us today is one in which we co-worked and co-authored, as it were.
One of the phenomena that makes it even more important for us to pass this legislation was the phasing out of ACUS, the Administrative Conference of the United States, which had during its lifetime covered some of the mechanisms which now are more fully employed by what we propose to do here today.
But I would mention some of the improvements that we have fashioned in H.R. 2977 for the purposes of the Record: For instance, we amend the Federal Property and Administrative Services Act to clarify that agencies may use expedited procurement procedures when hiring neutral third parties for some of these proceedings.
It also amends the law to authorize agencies to use the services and facilities of State, local, and tribal governments in order to implement the ADR Act. That is enlarging the scope of the capacity to deal agency by agency in solving disputes before they reach a more hectic state.
Also, it amends the Contract Disputes Act to require that contract claims only in excess of $100,000 be certified in order to facilitate the use of ADR, and also a provision that broadens the definition of
``alternative means of dispute resolution'' to include the use of ombudsmen, while at the same time striking from that definition
``settlement negotiations,'' which was not deemed particularly useful, and so on.
It does some other improvements, and I will ask that these remarks be made a part of the Record so we will fully cover it, but I do wish to cover just one other little dispute that we resolved in a gentlemanly and bipartisan fashion.
There was a dispute as to whether we should allow binding arbitration when, let us say, a Federal agency became involved with a Federal contractor. If we had a binding arbitration conclusion, it would mean that this would be binding on the Federal Government. Then the dispute arose, can the Federal Government constitutionally surrender its decisionmaking to a nonelected official, thus bringing in a whole gamut of constitutional questions.
So what has been utilized over the past has been the opt-out provision, that if we do come to a kind of an arbitration conclusion, then government will have the right within a certain period of time to opt out, not to be bound by that decision, thus preserving the constitutionality of the agency representing the U.S. Government who could not delegate this kind of duty.
The penalty for that would be, though, that some of the costs and other costs could be garnered by the disaffected other parties, but at least the governmental constitutional safeguard would remain in place. What we have done in this legislation is to preserve in some fashion the opt-out provision, thus not facing the constitutional problems that this issue raises.
We also straightened out some items on confidentiality, and all-in-
all have improved the concept to a degree that we feel comfortable in presenting it to the floor and having the gentleman from Massachusetts hurry us up to complete the process.
And so we offer our thanks to everyone who helped prepare the legislation.
Mr. Speaker, I rise in support of H.R. 2977 and urge its adoption by the House.
The Administrative Dispute Resolution Act [ADR] was signed into law by President George W. Bush on November 15, 1990, as Public Law 101-
552. It was intended to encourage the use of alternative techniques to resolve disputes involving Federal agencies in the discharge of their regulatory responsibilities. The law provided explicit authority for agencies to engage in ADR and developed a framework meant to foster it.
The Subcommittee on Commercial and Administrative Law held an oversight hearing on December 13, 1995 on the ADR Act, which expired on October 1 of last year. The testimony that was presented before the subcommittee, I think, can be characterized as being uniformly favorable. Representatives of agencies, ADR practitioners and a corporate counsel all testified to savings attributable to the use of ADR techniques. Savings not only in time but also in considerable money, both to the Government and to private citizens and businesses. Not only I, but also the ranking minority member, were impressed and persuaded that a procedure that can facilitate such savings deserves to be reimplemented with whatever improvements have either been made necessary by time or will help effectuate even further savings.
Therefore, the gentleman from Rhode Island and I introduced this bill in a bipartisan spirit of cooperation attempting to focus attention on the most important areas of agreement and calculated to encourage the most expeditious passage of this legislation.
The bill makes a variety of changes to current law principally of a minor and technical nature to reflect things that have occurred since the ADR Act was first signed into law, for instance, the discontinuation of the Administrative Conference of the United States, which formerly had a primary role in promoting the act. But before ACUS went out of existence, it offered several recommended improvements to the act, some of which are included in H.R. 2977.
Improvements to current law proposed by H.R. 2977, include:
Amending the Federal Property and Administrative Services Act (41 U.S.C. 253(c)(3)(C) and 10 U.S.C. 2304(c)(3)(C)) to clarify that agencies may use expedited procurement procedures when hiring neutral third parties for ADR proceedings.
The bill amends 5 U.S.C. 583 to authorize agencies to use the services and facilities of State, local, and tribal governments in order to implement the ADR Act.
The bill amends the Contract Disputes Act to require that contract claims only in excess of $100,000 be certified in order to facilitate the use of ADR.
H.R. 2977 broadens the definition of ``alternative means of dispute resolution'' to include the use of ombudsmen, while at the same time striking from that definition ``settlement negotiations'' which was not deemed particularly useful.
The bill strikes language in current law that requires an alternative means of dispute resolution must be a procedure that is ``in lieu of an adjudication as defined in section 551(7) [of the Act]''. This amendment would broaden the possibilities for and encourages the use of ADR.
The bill deletes the exemption from ADR for the settlement of employee grievance proceedings specified under 5 U.S.C. 2302 and 7121(c), thus allowing parties to voluntarily use ADR to resolve employment related disputes.
It is perhaps appropriate to mention two things that are not in the bill and to explain briefly the committee's rationale for not including them. The first involves binding arbitration as it applies the Government and the second, which is in the bill to a lesser degree than proposed by some witnesses, concerns the confidentiality of ADR communications.
With respect to binding arbitration, current law contains a so-called opt-out provision that permits the Government a period of time in which to vacate an arbiter's decision or award. This procedure was developed in order to avoid a constitutional problem involving the appointments clause of the U.S. Constitution identified by then Assistant Attorney General William Barr in testimony before this subcommittee in 1990.
Mr. Barr expressed concern that straight binding arbitration would result in the delegation of significant executive authority to individuals not chosen in accordance with the aforementioned clause. The Congress responded by adopting the compromise procedure contained in current law which gives an agency a period of time in which to ratify or vacate the arbiter's award but also provides the assessment of costs against the Government in the event that the award is vacated by an agency--this to serve as a disincentive for such an action.
Repeal of this provision was suggested during testimony by the witness from the Department of Justice and may ultimately be a part of legislation in the other body. However, concern was expressed by members at the subcommittee's hearing, which I chair, that this would too abruptly reverse a decision the Congress had made little more than 5 years earlier and which had been motivated by constitutional concerns significant and persuasive enough to convince us to fashion a mechanism to allay them. There are also policy implications regarding accountability for the control of government spending inherent in binding arbitration that should be considered. I felt, and the gentleman from Rhode Island does also, that this issue deserves more discrete consideration. Therefore, H.R. 2977 retains current law.
With respect to confidentiality, several witnesses testified at the hearing that the confidentiality protections in the ADR Act should be broadened in order to facilitate and encourage its use. Both the gentleman from Rhode Island and I agree that reasonable steps should be taken to encourage resort to dispute resolution techniques which have been shown to be effective at saving money and avoiding litigation. Broadening confidentiality protections would foster an atmosphere in which parties to the ADR process could exchange views in a spirit of candor and would also encourage the use of Government neutrals where appropriate.
The by-play between the ADR Act and the Freedom of Information Act
[FOIA] has been of concern in this process, creating something of an anomaly, that is disclosure of information relating to ADR communications by both parties and neutrals is generally prohibited but is discoverable through FOIA. According to testimony, this has been a particular problem when the Government is a neutral and it often discourages the use of government neutrals.
One solution might be to simply exempt ``dispute resolution communications'' which are ``generated by or provided to an agency or neutral'' from the disclosure requirements of FOIA if they may not be disclosed under the ADR Act. But the gentleman from Rhode Island and I are aware that there is legitimate concern that this may be too broad a solution and H.R. 2977 proposes instead an exemption from FOIA only to apply to the Government when it acts as a neutral. This doubtless will not please those who feel that the ADR proceeding would operate best if surrounded by confidentiality, but on the other hand I think it is best to proceed with caution in this area and I think the bill represents that cautious approach.
As I noted, this legislation was developed in the best spirit of bipartisan cooperation which I hope bodes well for its expeditious consideration. I urge support from the Members.
Mr. Speaker, I reserve the balance of my time.
Mr. REED. Mr. Speaker, I yield myself such time as I may consume, and I rise in support of this legislation.
Mr. Speaker, I just wanted to say how pleased I was to be able to work on this legislation with the subcommittee chairman, the distinguished gentleman from Pennsylvania, and I commend the chairman for his fine work here today.
The legislation before us today will permanently reauthorize the Administrative Dispute Resolution Act.
We are all concerned with reducing litigation. The use of alternative dispute resolution techniques--techniques designed to resolve conflicts consensually, generally with the assistance of a neutral third party--
can lower the tremendous costs and ease the delays of Government litigation. This benefits the Government, as well as business and private parties.
The original ADR Act got agencies started on the road of using mediation, arbitration, negotiation, and other methods to resolve disputes. We heard excellent testimony at our hearing on the benefits and savings that accrue from the use of alternative dispute resolution.
For example, Joseph McDade, a deputy dispute resolution specialist from the Air Force testified before the Subcommittee on Commercial and Administrative Law that the Air Force had used ADR to resolve more than 1,000 civilian personnel disputes, with a settlement rate close to 80 percent. Likewise, 53 Air Force contracting cases have gone through ADR, and all have been resolved. The Air Force has begun adding ADR clauses to contracts, to ensure that disputes do not drive up acquisition costs.
According to a report of the Administrative Conference of the United States, the Department of Labor used mediation to resolve violations of labor or workplace standards in the Philadelphia region. Eighty-one percent of the cases were settled, usually in a single session, with a cost savings of 7 to 11 percent per case. The cases were resolved months faster than they would have been otherwise.
The FDIC and RTC have mediated disputes among failed financial institutions and saved millions in legal fees--over $13 million in estimated legal costs for the FDIC, and over $115 million for the RTC. The Departments of Health and Human Services and Education have used ADR in grant audits and disputes. ADR is being used increasingly in enforcement disputes. The Attorney General recently directed all civil litigation components within the Department of Justice to develop ADR case selection criteria and is requiring ADR training for all civil litigation attorneys.
While agencies inherently have the authority to use ADR techniques, testimony received by the subcommittee indicate that the expiration of the ADR Act has caused confusion and disruption in the field. The act provides a necessary framework for governmentwide ADR, as well as important incentives for promoting its use. The ADR Act sets uniform governmentwide standards for the use of ADR, provides the confidentiality protections that are necessary for a full and candid exchange between the parties, and provides the authority to hire neutrals as well as to use donated neutrals and space for ADR.
This legislation permanently reauthorizes the act and makes several important improvements:
It expands the range of cases that can be referred to ADR by eliminating the exemptions for certain types of workplace related disputes so employee grievances and discrimination cases under civil rights laws may, with the consent of the employee, be referred to ADR. The general provisions of section 572(b), which establishes criteria for identifying cases where ADR is not appropriate, would still apply.
It makes the procedure more user friendly by streamlining the acquisition process for hiring mediators.
It enhances the confidentiality provisions. Currently, section 574 of the act prohibits third-party neutrals and parties to the dispute from disclosing communications during an ADR proceeding, with limited exceptions. These communications are not necessarily exempt from disclosure under the Freedom of Information Act. In particular, the lack of an FOIA exemption may serve as an incentive to hire private neutrals who are not subject to FOIA, rather than Government neutrals. According to the testimony of the Federal Mediation Conciliation Service, this is a particular problem for Government agencies, like FMCS, that furnish employees as neutrals for proceedings involving other Federal agencies, since their neutrals notes, unlike the notes of private sector neutrals, may be subject to FOIA disclosure. The committee bill provides that the memoranda, notes, or work product of the neutral, are exempt from disclosure under FOIA. Exempting these communications from FOIA does not diminish the amount of information that would otherwise be available to the public if a neutral were not employed. A careful balance must be struck between the need for confidentiality in the ADR process and the basic purpose underlying FOIA, that openness in Government is essential to accountability. The committee was reluctant to expand the exemption from ADR Act should not be used as a shield to hide documents that otherwise would be available to the public. The principles of Government openness and accountability underlying FOIA are vital to the functioning of a democratic society.
When the ADR Act was first enacted in 1990, the Federal Government lagged well behind the private sector and the courts in using alternative dispute resolutions. Since then, almost every agency has experimented with consensus based dispute resolution techniques. Now, the Federal Government has the opportunity to become a leader in making dispute resolution easier, cheaper, and more effective.
Mr. Speaker, I urge an ``aye'' vote on this legislation.
Mr. Speaker, I reserve the balance of my time.
Mr. GEKAS. Mr. Speaker, I yield such time as he may consume to the gentleman from Pennsylvania [Mr. Clinger].
Mr. CLINGER. Mr. Speaker, I thank the gentleman for yielding time, and I would ask if he would engage in a colloquy with me.
Mr. Chairman, am I correct that H.R. 2977 does not include any language to remove from the district courts the so-called Scanwell bid protest jurisdiction?
Mr. GEKAS. Mr. Speaker, will the gentleman yield?
Mr. CLINGER. I yield to the gentleman from Pennsylvania.
Mr. GEKAS. Mr. Speaker, the gentleman is correct. It was our intent that this bill not include any language regarding removal of Scanwell jurisdiction from the district courts. We would hope and urge our colleagues in the other body not to use legislation reauthorizing the ADR Act for such a purpose.
Mr. CLINGER. I thank the chairman, and I appreciate his intentions on this issue. As he knows, Congress recently made sweeping, extensive reforms to the Federal procurement system and the administrative bid protest forms. These reforms are only now really being implemented, and I am concerned that the system be given full opportunity to absorb the recently enacted changes before there is any further disruption in the system.
Mr. GEKAS. I thank the gentleman for his comments. We too have these concerns and understand the need to review the Scanwell issue before moving forward on further changes. We intend to hold hearings in the future to review whether eliminating bid protest jurisdiction from the Federal district courts is appropriate.
Mr. Speaker, I have no further requests for time, and I yield back the balance of my time.
Mr. REED. Mr. Speaker, I have no further requests for time, and I yield back the balance of my time.
The SPEAKER pro tempore (Mr. Upton). The question is on the motion offered by the gentleman from Pennsylvania [Mr. Gekas] that the House suspend the rules and pass the bill, H.R. 2977, as amended.
The question was taken; and (two-thirds having voted in favor thereof) the rules were suspended and the bill, as amended, was passed.
A motion to reconsider was laid on the table.
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