Page 71 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 571

§ 570. Judicial review

Any agency action relating to establishing, assisting, or terminating a negotiated rulemaking

committee under this subchapter shall not be

subject to judicial review. Nothing in this section shall bar judicial review of a rule if such judicial review is otherwise provided by law. A

rule which is the product of negotiated rulemaking and is subject to judicial review shall

not be accorded any greater deference by a court

than a rule which is the product of other rulemaking procedures.

(Added Pub. L. 101–648, §3(a), Nov. 29, 1990, 104

Stat. 4976, §590; renumbered §570, Pub. L. 102–354,

§3(a)(2), Aug. 26, 1992, 106 Stat. 944.)

AMENDMENTS

1992—Pub. L. 102–354 renumbered section 590 of this

title as this section.

§ 570a. Authorization of appropriations

There are authorized to be appropriated such

sums as may be necessary to carry out the purposes of this subchapter.

(Added Pub. L. 104–320, §11(d)(1), Oct. 19, 1996, 110

Stat. 3873.)

SUBCHAPTER IV—ALTERNATIVE MEANS

OF DISPUTE RESOLUTION IN THE ADMINISTRATIVE PROCESS

CODIFICATION

Another subchapter IV (§581 et seq.) relating to negotiated rulemaking procedure was redesignated subchapter III (§561 et seq.) of this chapter.

AMENDMENTS

1992—Pub. L. 102–354, §3(b)(1), Aug. 26, 1992, 106 Stat.

944, transferred this subchapter so as to appear immediately after subchapter III of this chapter.

§ 571. Definitions

For the purposes of this subchapter, the

term—

(1) ‘‘agency’’ has the same meaning as in

section 551(1) of this title;

(2) ‘‘administrative program’’ includes a

Federal function which involves protection of

the public interest and the determination of

rights, privileges, and obligations of private

persons through rule making, adjudication, licensing, or investigation, as those terms are

used in subchapter II of this chapter;

(3) ‘‘alternative means of dispute resolution’’

means any procedure that is used to resolve issues in controversy, including, but not limited

to, conciliation, facilitation, mediation, factfinding, minitrials, arbitration, and use of

ombuds, or any combination thereof;

(4) ‘‘award’’ means any decision by an arbitrator resolving the issues in controversy;

(5) ‘‘dispute resolution communication’’

means any oral or written communication prepared for the purposes of a dispute resolution

proceeding, including any memoranda, notes

or work product of the neutral, parties or nonparty participant; except that a written agreement to enter into a dispute resolution proceeding, or final written agreement or arbitral

award reached as a result of a dispute resolution proceeding, is not a dispute resolution

communication;

(6) ‘‘dispute resolution proceeding’’ means

any process in which an alternative means of

dispute resolution is used to resolve an issue

in controversy in which a neutral is appointed

and specified parties participate;

(7) ‘‘in confidence’’ means, with respect to

information, that the information is provided—

(A) with the expressed intent of the source

that it not be disclosed; or

(B) under circumstances that would create

the reasonable expectation on behalf of the

source that the information will not be disclosed;

(8) ‘‘issue in controversy’’ means an issue

which is material to a decision concerning an

administrative program of an agency, and

with which there is disagreement—

(A) between an agency and persons who

would be substantially affected by the decision; or

(B) between persons who would be substantially affected by the decision;

(9) ‘‘neutral’’ means an individual who, with

respect to an issue in controversy, functions

specifically to aid the parties in resolving the

controversy;

(10) ‘‘party’’ means—

(A) for a proceeding with named parties,

the same as in section 551(3) of this title; and

(B) for a proceeding without named parties, a person who will be significantly affected by the decision in the proceeding and

who participates in the proceeding;

(11) ‘‘person’’ has the same meaning as in

section 551(2) of this title; and

(12) ‘‘roster’’ means a list of persons qualified to provide services as neutrals.

(Added Pub. L. 101–552, §4(b), Nov. 15, 1990, 104

Stat. 2738, §581; renumbered §571 and amended

Pub. L. 102–354, §§3(b)(2), 5(b)(1), (2), Aug. 26, 1992,

106 Stat. 944, 946; Pub. L. 104–320, §2, Oct. 19, 1996,

110 Stat. 3870.)

CODIFICATION

Section 571 of former Title 5, Executive Departments

and Government Officers and Employees, was transferred to section 2256 of Title 7, Agriculture.

PRIOR PROVISIONS

A prior section 571 was renumbered section 591 of this

title.

AMENDMENTS

1996—Par. (3). Pub. L. 104–320, §2(1), struck out ‘‘, in

lieu of an adjudication as defined in section 551(7) of

this title,’’ after ‘‘any procedure that is used’’, struck

out ‘‘settlement negotiations,’’ after ‘‘but not limited

to,’’ and substituted ‘‘arbitration, and use of ombuds’’

for ‘‘and arbitration’’.

Par. (8). Pub. L. 104–320, §2(2), substituted ‘‘decision;’’

for ‘‘decision,’’ at end of subpar. (B), and struck out

closing provisions which read as follows: ‘‘except that

such term shall not include any matter specified under

section 2302 or 7121(c) of this title;’’.

1992—Pub. L. 102–354, §3(b)(2), renumbered section 581

of this title as this section.

Par. (3). Pub. L. 102–354, §5(b)(1), inserted comma

after ‘‘including’’.
§ 571 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES Page 72

Par. (8). Pub. L. 102–354, §5(b)(2), amended par. (8) generally. Prior to amendment, par. (8) read as follows:

‘‘‘issue in controversy’ means an issue which is material to a decision concerning an administrative program of an agency, and with which there is disagreement between the agency and persons who would be

substantially affected by the decision but shall not extend to matters specified under the provisions of sections 2302 and 7121(c) of title 5;’’.

TERMINATION DATE; SAVINGS PROVISION

Pub. L. 101–552, §11, Nov. 15, 1990, 104 Stat. 2747, as

amended by Pub. L. 104–106, div. D, title XLIII,

§4321(i)(5), Feb. 10, 1996, 110 Stat. 676, which provided

that the authority of agencies to use dispute resolution

proceedings under this Act [see Short Title note below]

was to terminate on Oct. 1, 1995, except with respect to

pending proceedings, was repealed by Pub. L. 104–320,

§9, Oct. 19, 1996, 110 Stat. 3872.

SHORT TITLE OF 1996 AMENDMENT

Pub. L. 104–320, §1, Oct. 19, 1996, 110 Stat. 3870, provided that: ‘‘This Act [enacting sections 570a and 584 of

this title, amending this section, sections 569, 573 to

575, 580, 581, and 583 of this title, section 2304 of Title 10,

Armed Forces, section 1491 of Title 28, Crimes and

Criminal Procedure, section 173 of Title 29, Labor, section 3556 of Title 31, Money and Finance, and sections

253 and 605 of Title 41, Public Contracts, repealing section 582 of this title, enacting provisions set out as

notes under section 563 of this title, section 1491 of

Title 28, and section 3556 of Title 31, amending provisions set out as notes under this section, and repealing

provisions set out as notes under this section and section 561 of this title] may be cited as the ‘Administrative Dispute Resolution Act of 1996’.’’

SHORT TITLE

Pub. L. 101–552, §1, Nov. 15, 1990, 104 Stat. 2736, provided that: ‘‘This Act [enacting this subchapter,

amending section 556 of this title, section 10 of Title 9,

Arbitration, section 2672 of Title 28, Judiciary and Judicial Procedure, section 173 of Title 29, Labor, section

3711 of Title 31, Money and Finance, and sections 605

and 607 of Title 41, Public Contracts, and enacting provisions set out as notes under this section] may be

cited as the ‘Administrative Dispute Resolution Act’.’’

CONGRESSIONAL FINDINGS

Pub. L. 101–552, §2, Nov. 15, 1990, 104 Stat. 2736, provided that: ‘‘The Congress finds that—

‘‘(1) administrative procedure, as embodied in chapter 5 of title 5, United States Code, and other statutes, is intended to offer a prompt, expert, and inexpensive means of resolving disputes as an alternative

to litigation in the Federal courts;

‘‘(2) administrative proceedings have become increasingly formal, costly, and lengthy resulting in

unnecessary expenditures of time and in a decreased

likelihood of achieving consensual resolution of disputes;

‘‘(3) alternative means of dispute resolution have

been used in the private sector for many years and, in

appropriate circumstances, have yielded decisions

that are faster, less expensive, and less contentious;

‘‘(4) such alternative means can lead to more creative, efficient, and sensible outcomes;

‘‘(5) such alternative means may be used advantageously in a wide variety of administrative programs;

‘‘(6) explicit authorization of the use of well-tested

dispute resolution techniques will eliminate ambiguity of agency authority under existing law;

‘‘(7) Federal agencies may not only receive the benefit of techniques that were developed in the private

sector, but may also take the lead in the further development and refinement of such techniques; and

‘‘(8) the availability of a wide range of dispute resolution procedures, and an increased understanding of

the most effective use of such procedures, will enhance the operation of the Government and better

serve the public.’’

PROMOTION OF ALTERNATIVE MEANS OF DISPUTE

RESOLUTION

Pub. L. 101–552, §3, Nov. 15, 1990, 104 Stat. 2736, as

amended by Pub. L. 104–320, §4(a), Oct. 19, 1996, 110 Stat.

3871, provided that:

‘‘(a) PROMULGATION OF AGENCY POLICY.—Each agency

shall adopt a policy that addresses the use of alternative means of dispute resolution and case management. In developing such a policy, each agency shall—

‘‘(1) consult with the agency designated by, or the

interagency committee designated or established by,

the President under section 573 of title 5, United

States Code, to facilitate and encourage agency use

of alternative dispute resolution under subchapter IV

of chapter 5 of such title; and

‘‘(2) examine alternative means of resolving disputes in connection with—

‘‘(A) formal and informal adjudications;

‘‘(B) rulemakings;

‘‘(C) enforcement actions;

‘‘(D) issuing and revoking licenses or permits;

‘‘(E) contract administration;

‘‘(F) litigation brought by or against the agency;

and

‘‘(G) other agency actions.

‘‘(b) DISPUTE RESOLUTION SPECIALISTS.—The head of

each agency shall designate a senior official to be the

dispute resolution specialist of the agency. Such official shall be responsible for the implementation of—

‘‘(1) the provisions of this Act [see Short Title note

above] and the amendments made by this Act; and

‘‘(2) the agency policy developed under subsection

(a).

‘‘(c) TRAINING.—Each agency shall provide for training on a regular basis for the dispute resolution specialist of the agency and other employees involved in implementing the policy of the agency developed under

subsection (a). Such training should encompass the theory and practice of negotiation, mediation, arbitration,

or related techniques. The dispute resolution specialist

shall periodically recommend to the agency head agency employees who would benefit from similar training.

‘‘(d) PROCEDURES FOR GRANTS AND CONTRACTS.—

‘‘(1) Each agency shall review each of its standard

agreements for contracts, grants, and other assistance and shall determine whether to amend any such

standard agreements to authorize and encourage the

use of alternative means of dispute resolution.

‘‘(2)(A) Within 1 year after the date of the enactment of this Act [Nov. 15, 1990], the Federal Acquisition Regulation shall be amended, as necessary, to

carry out this Act [see Short Title note above] and

the amendments made by this Act.

‘‘(B) For purposes of this section, the term ‘Federal

Acquisition Regulation’ means the single system of

Government-wide procurement regulation referred to

in section 6(a) of the Office of Federal Procurement

Policy Act ([former] 41 U.S.C. 405(a)) [now 41 U.S.C.

1121(a) to (c)(1)].’’

USE OF NONATTORNEYS

Pub. L. 101–552, §9, Nov. 15, 1990, 104 Stat. 2747, provided that:

‘‘(a) REPRESENTATION OF PARTIES.—Each agency, in

developing a policy on the use of alternative means of

dispute resolution under this Act [see Short Title note

above], shall develop a policy with regard to the representation by persons other than attorneys of parties

in alternative dispute resolution proceedings and shall

identify any of its administrative programs with numerous claims or disputes before the agency and determine—

‘‘(1) the extent to which individuals are represented

or assisted by attorneys or by persons who are not attorneys; and
Page 73 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 573

‘‘(2) whether the subject areas of the applicable proceedings or the procedures are so complex or specialized that only attorneys may adequately provide such

representation or assistance.

‘‘(b) REPRESENTATION AND ASSISTANCE BY NONATTORNEYS.—A person who is not an attorney may provide representation or assistance to any individual in a

claim or dispute with an agency, if—

‘‘(1) such claim or dispute concerns an administrative program identified under subsection (a);

‘‘(2) such agency determines that the proceeding or

procedure does not necessitate representation or assistance by an attorney under subsection (a)(2); and

‘‘(3) such person meets any requirement of the

agency to provide representation or assistance in

such a claim or dispute.

‘‘(c) DISQUALIFICATION OF REPRESENTATION OR ASSISTANCE.—Any agency that adopts regulations under subchapter IV of chapter 5 of title 5, United States Code,

to permit representation or assistance by persons who

are not attorneys shall review the rules of practice before such agency to—

‘‘(1) ensure that any rules pertaining to disqualification of attorneys from practicing before the agency shall also apply, as appropriate, to other persons

who provide representation or assistance; and

‘‘(2) establish effective agency procedures for enforcing such rules of practice and for receiving complaints from affected persons.’’

DEFINITIONS

Pub. L. 101–552, §10, Nov. 15, 1990, 104 Stat. 2747, as

amended by Pub. L. 102–354, §5(b)(6), Aug. 26, 1992, 106

Stat. 946, provided that: ‘‘As used in this Act [see Short

Title note above], the terms ‘agency’, ‘administrative

program’, and ‘alternative means of dispute resolution’

have the meanings given such terms in section 571 of

title 5, United States Code (enacted as section 581 of

title 5, United States Code, by section 4(b) of this Act,

and redesignated as section 571 of such title by section

3(b) of the Administrative Procedure Technical Amendments Act of 1991 [Pub. L. 102–354]).’’

§ 572. General authority

(a) An agency may use a dispute resolution

proceeding for the resolution of an issue in controversy that relates to an administrative program, if the parties agree to such proceeding.

(b) An agency shall consider not using a dispute resolution proceeding if—

(1) a definitive or authoritative resolution of

the matter is required for precedential value,

and such a proceeding is not likely to be accepted generally as an authoritative precedent;

(2) the matter involves or may bear upon

significant questions of Government policy

that require additional procedures before a

final resolution may be made, and such a proceeding would not likely serve to develop a

recommended policy for the agency;

(3) maintaining established policies is of special importance, so that variations among individual decisions are not increased and such a

proceeding would not likely reach consistent

results among individual decisions;

(4) the matter significantly affects persons

or organizations who are not parties to the

proceeding;

(5) a full public record of the proceeding is

important, and a dispute resolution proceeding cannot provide such a record; and

(6) the agency must maintain continuing jurisdiction over the matter with authority to

alter the disposition of the matter in the light

of changed circumstances, and a dispute resolution proceeding would interfere with the

agency’s fulfilling that requirement.

(c) Alternative means of dispute resolution authorized under this subchapter are voluntary

procedures which supplement rather than limit

other available agency dispute resolution techniques.

(Added Pub. L. 101–552, §4(b), Nov. 15, 1990, 104

Stat. 2739, §582; renumbered §572, Pub. L. 102–354,

§3(b)(2), Aug. 26, 1992, 106 Stat. 944.)

CODIFICATION

Section 572 of former Title 5, Executive Departments

and Government Officers and Employees, was transferred to section 2257 of Title 7, Agriculture.

PRIOR PROVISIONS

A prior section 572 was renumbered section 592 of this

title.

AMENDMENTS

1992—Pub. L. 102–354 renumbered section 582 of this

title as this section.

§ 573. Neutrals

(a) A neutral may be a permanent or temporary officer or employee of the Federal Government or any other individual who is acceptable to the parties to a dispute resolution proceeding. A neutral shall have no official, financial, or personal conflict of interest with respect

to the issues in controversy, unless such interest

is fully disclosed in writing to all parties and all

parties agree that the neutral may serve.

(b) A neutral who serves as a conciliator, facilitator, or mediator serves at the will of the

parties.

(c) The President shall designate an agency or

designate or establish an interagency committee

to facilitate and encourage agency use of dispute resolution under this subchapter. Such

agency or interagency committee, in consultation with other appropriate Federal agencies

and professional organizations experienced in

matters concerning dispute resolution, shall—

(1) encourage and facilitate agency use of alternative means of dispute resolution; and

(2) develop procedures that permit agencies

to obtain the services of neutrals on an expedited basis.

(d) An agency may use the services of one or

more employees of other agencies to serve as

neutrals in dispute resolution proceedings. The

agencies may enter into an interagency agreement that provides for the reimbursement by

the user agency or the parties of the full or partial cost of the services of such an employee.

(e) Any agency may enter into a contract with

any person for services as a neutral, or for training in connection with alternative means of dispute resolution. The parties in a dispute resolution proceeding shall agree on compensation for

the neutral that is fair and reasonable to the

Government.

(Added Pub. L. 101–552, §4(b), Nov. 15, 1990, 104

Stat. 2739, §583; renumbered §573, Pub. L. 102–354,

§3(b)(2), Aug. 26, 1992, 106 Stat. 944; amended

Pub. L. 104–320, §7(b), Oct. 19, 1996, 110 Stat.

3872.)
§ 574 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES Page 74

CODIFICATION

Section 573 of former Title 5, Executive Departments

and Government Officers and Employees, was transferred to section 2258 of Title 7, Agriculture.

PRIOR PROVISIONS

A prior section 573 was renumbered section 593 of this

title.

AMENDMENTS

1996—Subsec. (c). Pub. L. 104–320, §7(b)(1), added subsec. (c) and struck out former subsec. (c) which related

to power of Administrative Conference of the United

States to establish and utilize standards for neutrals

and to enter into contracts for services of neutrals.

Subsec. (e). Pub. L. 104–320, §7(b)(2), struck out ‘‘on a

roster established under subsection (c)(2) or a roster

maintained by other public or private organizations, or

individual’’ after ‘‘contract with any person’’.

1992—Pub. L. 102–354 renumbered section 583 of this

title as this section.

§ 574. Confidentiality

(a) Except as provided in subsections (d) and

(e), a neutral in a dispute resolution proceeding

shall not voluntarily disclose or through discovery or compulsory process be required to disclose any dispute resolution communication or

any communication provided in confidence to

the neutral, unless—

(1) all parties to the dispute resolution proceeding and the neutral consent in writing,

and, if the dispute resolution communication

was provided by a nonparty participant, that

participant also consents in writing;

(2) the dispute resolution communication

has already been made public;

(3) the dispute resolution communication is

required by statute to be made public, but a

neutral should make such communication

public only if no other person is reasonably

available to disclose the communication; or

(4) a court determines that such testimony

or disclosure is necessary to—

(A) prevent a manifest injustice;

(B) help establish a violation of law; or

(C) prevent harm to the public health or

safety,

of sufficient magnitude in the particular case

to outweigh the integrity of dispute resolution

proceedings in general by reducing the confidence of parties in future cases that their

communications will remain confidential.

(b) A party to a dispute resolution proceeding

shall not voluntarily disclose or through discovery or compulsory process be required to disclose any dispute resolution communication, unless—

(1) the communication was prepared by the

party seeking disclosure;

(2) all parties to the dispute resolution proceeding consent in writing;

(3) the dispute resolution communication

has already been made public;

(4) the dispute resolution communication is

required by statute to be made public;

(5) a court determines that such testimony

or disclosure is necessary to—

(A) prevent a manifest injustice;

(B) help establish a violation of law; or

(C) prevent harm to the public health and

safety,

of sufficient magnitude in the particular case

to outweigh the integrity of dispute resolution

proceedings in general by reducing the confidence of parties in future cases that their

communications will remain confidential;

(6) the dispute resolution communication is

relevant to determining the existence or

meaning of an agreement or award that resulted from the dispute resolution proceeding

or to the enforcement of such an agreement or

award; or

(7) except for dispute resolution communications generated by the neutral, the dispute

resolution communication was provided to or

was available to all parties to the dispute resolution proceeding.

(c) Any dispute resolution communication

that is disclosed in violation of subsection (a) or

(b), shall not be admissible in any proceeding relating to the issues in controversy with respect

to which the communication was made.

(d)(1) The parties may agree to alternative

confidential procedures for disclosures by a neutral. Upon such agreement the parties shall inform the neutral before the commencement of

the dispute resolution proceeding of any modifications to the provisions of subsection (a) that

will govern the confidentiality of the dispute

resolution proceeding. If the parties do not so

inform the neutral, subsection (a) shall apply.

(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.

(e) If a demand for disclosure, by way of discovery request or other legal process, is made

upon a neutral regarding a dispute resolution

communication, the neutral shall make reasonable efforts to notify the parties and any affected nonparty participants of the demand. Any

party or affected nonparty participant who receives such notice and within 15 calendar days

does not offer to defend a refusal of the neutral

to disclose the requested information shall have

waived any objection to such disclosure.

(f) Nothing in this section shall prevent the

discovery or admissibility of any evidence that

is otherwise discoverable, merely because the

evidence was presented in the course of a dispute resolution proceeding.

(g) Subsections (a) and (b) shall have no effect

on the information and data that are necessary

to document an agreement reached or order issued pursuant to a dispute resolution proceeding.

(h) Subsections (a) and (b) shall not prevent

the gathering of information for research or

educational purposes, in cooperation with other

agencies, governmental entities, or dispute resolution programs, so long as the parties and the

specific issues in controversy are not identifiable.

(i) Subsections (a) and (b) shall not prevent

use of a dispute resolution communication to resolve a dispute between the neutral in a dispute

resolution proceeding and a party to or participant in such proceeding, so long as such dispute

resolution communication is disclosed only to

the extent necessary to resolve such dispute.

(j) A dispute resolution communication which

is between a neutral and a party and which may
Page 75 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 577

not be disclosed under this section shall also be

exempt from disclosure under section 552(b)(3).

(Added Pub. L. 101–552, §4(b), Nov. 15, 1990, 104

Stat. 2740, §584; renumbered §574, Pub. L. 102–354,

§3(b)(2), Aug. 26, 1992, 106 Stat. 944; amended

Pub. L. 104–320, §3, Oct. 19, 1996, 110 Stat. 3870.)

CODIFICATION

Section 574 of former Title 5, Executive Departments

and Government Officers and Employees, was transferred to section 2255 of Title 7, Agriculture.

Section 574a of former Title 5, Executive Departments and Government Officers and Employees, was

transferred to section 2226 of Title 7.

PRIOR PROVISIONS

A prior section 574 was renumbered section 594 of this

title.

AMENDMENTS

1996—Subsecs. (a), (b). Pub. L. 104–320, §3(a), in introductory provisions struck out ‘‘any information concerning’’ after ‘‘be required to disclose’’.

Subsec. (b)(7). Pub. L. 104–320, §3(b), amended par. (7)

generally. Prior to amendment, par. (7) read as follows:

‘‘the dispute resolution communication was provided to

or was available to all parties to the dispute resolution

proceeding’’.

Subsec. (d). Pub. L. 104–320, §3(c), designated existing

provisions as par. (1) and added par. (2).

Subsec. (j). Pub. L. 104–320, §3(d), amended subsec. (j)

generally. Prior to amendment, subsec. (j) read as follows: ‘‘This section shall not be considered a statute

specifically exempting disclosure under section

552(b)(3) of this title.’’

1992—Pub. L. 102–354 renumbered section 584 of this

title as this section.

§ 575. Authorization of arbitration

(a)(1) Arbitration may be used as an alternative means of dispute resolution whenever all

parties consent. Consent may be obtained either

before or after an issue in controversy has arisen. A party may agree to—

(A) submit only certain issues in controversy to arbitration; or

(B) arbitration on the condition that the

award must be within a range of possible outcomes.

(2) The arbitration agreement that sets forth

the subject matter submitted to the arbitrator

shall be in writing. Each such arbitration agreement shall specify a maximum award that may

be issued by the arbitrator and may specify

other conditions limiting the range of possible

outcomes.

(3) An agency may not require any person to

consent to arbitration as a condition of entering

into a contract or obtaining a benefit.

(b) An officer or employee of an agency shall

not offer to use arbitration for the resolution of

issues in controversy unless such officer or employee—

(1) would otherwise have authority to enter

into a settlement concerning the matter; or

(2) is otherwise specifically authorized by

the agency to consent to the use of arbitration.

(c) Prior to using binding arbitration under

this subchapter, the head of an agency, in consultation with the Attorney General and after

taking into account the factors in section 572(b),

shall issue guidance on the appropriate use of

binding arbitration and when an officer or employee of the agency has authority to settle an

issue in controversy through binding arbitration.

(Added Pub. L. 101–552, §4(b), Nov. 15, 1990, 104

Stat. 2742, §585; renumbered §575, Pub. L. 102–354,

§3(b)(2), Aug. 26, 1992, 106 Stat. 944; amended

Pub. L. 104–320, §8(c), Oct. 19, 1996, 110 Stat. 3872.)

CODIFICATION

Section 575 of former Title 5, Executive Departments

and Government Officers and Employees, was transferred to section 2259 of Title 7, Agriculture.

PRIOR PROVISIONS

A prior section 575 was renumbered section 595 of this

title.

AMENDMENTS

1996—Subsec. (a)(2). Pub. L. 104–320, §8(c)(1), (2), substituted ‘‘The’’ for ‘‘Any’’ and inserted at end ‘‘Each

such arbitration agreement shall specify a maximum

award that may be issued by the arbitrator and may

specify other conditions limiting the range of possible

outcomes.’’

Subsec. (b). Pub. L. 104–320, §8(c)(3), in introductory

provisions substituted ‘‘shall not offer to use arbitration for the resolution of issues in controversy unless’’

for ‘‘may offer to use arbitration for the resolution of

issues in controversy, if’’, and in par. (1) substituted

‘‘would otherwise have authority’’ for ‘‘has authority’’.

Subsec. (c). Pub. L. 104–320, §8(c)(4), added subsec. (c).

1992—Pub. L. 102–354 renumbered section 585 of this

title as this section.

§ 576. Enforcement of arbitration agreements

An agreement to arbitrate a matter to which

this subchapter applies is enforceable pursuant

to section 4 of title 9, and no action brought to

enforce such an agreement shall be dismissed

nor shall relief therein be denied on the grounds

that it is against the United States or that the

United States is an indispensable party.

(Added Pub. L. 101–552, §4(b), Nov. 15, 1990, 104

Stat. 2742, §586; renumbered §576, Pub. L. 102–354,

§3(b)(2), Aug. 26, 1992, 106 Stat. 944.)

CODIFICATION

Section 576 of former Title 5, Executive Departments

and Government Officers and Employees, was transferred to section 2260 of Title 7, Agriculture, and subsequently repealed by Pub. L. 107–171, title X, §10418(a)(3),

May 13, 2002, 116 Stat. 507.

PRIOR PROVISIONS

A prior section 576 was renumbered section 596 of this

title.

AMENDMENTS

1992—Pub. L. 102–354 renumbered section 586 of this

title as this section.

§ 577. Arbitrators

(a) The parties to an arbitration proceeding

shall be entitled to participate in the selection

of the arbitrator.

(b) The arbitrator shall be a neutral who

meets the criteria of section 573 of this title.

(Added Pub. L. 101–552, §4(b), Nov. 15, 1990, 104

Stat. 2742, §587; renumbered §577 and amended

Pub. L. 102–354, §3(b)(2), (3), Aug. 26, 1992, 102

Stat. 944, 945.)
§ 578 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES Page 76

AMENDMENTS

1992—Pub. L. 102–354, §3(b)(2), renumbered section 587

of this title as this section.

Subsec. (b). Pub. L. 102–354, §3(b)(3), substituted ‘‘section 573’’ for ‘‘section 583’’.

§ 578. Authority of the arbitrator

An arbitrator to whom a dispute is referred

under this subchapter may—

(1) regulate the course of and conduct arbitral hearings;

(2) administer oaths and affirmations;

(3) compel the attendance of witnesses and

production of evidence at the hearing under

the provisions of section 7 of title 9 only to the

extent the agency involved is otherwise authorized by law to do so; and

(4) make awards.

(Added Pub. L. 101–552, §4(b), Nov. 15, 1990, 104

Stat. 2742, §588; renumbered §578, Pub. L. 102–354,

§3(b)(2), Aug. 26, 1992, 106 Stat. 944.)

AMENDMENTS

1992—Pub. L. 102–354 renumbered section 588 of this

title as this section.

§ 579. Arbitration proceedings

(a) The arbitrator shall set a time and place

for the hearing on the dispute and shall notify

the parties not less than 5 days before the hearing.

(b) Any party wishing a record of the hearing

shall—

(1) be responsible for the preparation of such

record;

(2) notify the other parties and the arbitrator of the preparation of such record;

(3) furnish copies to all identified parties and

the arbitrator; and

(4) pay all costs for such record, unless the

parties agree otherwise or the arbitrator determines that the costs should be apportioned.

(c)(1) The parties to the arbitration are entitled to be heard, to present evidence material to

the controversy, and to cross-examine witnesses

appearing at the hearing.

(2) The arbitrator may, with the consent of the

parties, conduct all or part of the hearing by

telephone, television, computer, or other electronic means, if each party has an opportunity

to participate.

(3) The hearing shall be conducted expeditiously and in an informal manner.

(4) The arbitrator may receive any oral or documentary evidence, except that irrelevant, immaterial, unduly repetitious, or privileged evidence may be excluded by the arbitrator.

(5) The arbitrator shall interpret and apply

relevant statutory and regulatory requirements,

legal precedents, and policy directives.

(d) No interested person shall make or knowingly cause to be made to the arbitrator an unauthorized ex parte communication relevant to

the merits of the proceeding, unless the parties

agree otherwise. If a communication is made in

violation of this subsection, the arbitrator shall

ensure that a memorandum of the communication is prepared and made a part of the record,

and that an opportunity for rebuttal is allowed.

Upon receipt of a communication made in violation of this subsection, the arbitrator may, to

the extent consistent with the interests of justice and the policies underlying this subchapter,

require the offending party to show cause why

the claim of such party should not be resolved

against such party as a result of the improper

conduct.

(e) The arbitrator shall make the award within 30 days after the close of the hearing, or the

date of the filing of any briefs authorized by the

arbitrator, whichever date is later, unless—

(1) the parties agree to some other time

limit; or

(2) the agency provides by rule for some

other time limit.

(Added Pub. L. 101–552, §4(b), Nov. 15, 1990, 104

Stat. 2742, §589; renumbered §579, Pub. L. 102–354,

§3(b)(2), Aug. 26, 1992, 106 Stat. 944.)

AMENDMENTS

1992—Pub. L. 102–354 renumbered section 589 of this

title as this section.

§ 580. Arbitration awards

(a)(1) Unless the agency provides otherwise by

rule, the award in an arbitration proceeding

under this subchapter shall include a brief, informal discussion of the factual and legal basis

for the award, but formal findings of fact or conclusions of law shall not be required.

(2) The prevailing parties shall file the award

with all relevant agencies, along with proof of

service on all parties.

(b) The award in an arbitration proceeding

shall become final 30 days after it is served on

all parties. Any agency that is a party to the

proceeding may extend this 30-day period for an

additional 30-day period by serving a notice of

such extension on all other parties before the

end of the first 30-day period.

(c) A final award is binding on the parties to

the arbitration proceeding, and may be enforced

pursuant to sections 9 through 13 of title 9. No

action brought to enforce such an award shall be

dismissed nor shall relief therein be denied on

the grounds that it is against the United States

or that the United States is an indispensable

party.

(d) An award entered under this subchapter in

an arbitration proceeding may not serve as an

estoppel in any other proceeding for any issue

that was resolved in the proceeding. Such an

award also may not be used as precedent or

otherwise be considered in any factually unrelated proceeding, whether conducted under this

subchapter, by an agency, or in a court, or in

any other arbitration proceeding.

(Added Pub. L. 101–552, §4(b), Nov. 15, 1990, 104

Stat. 2743, §590; renumbered §580 and amended

Pub. L. 102–354, §§3(b)(2), 5(b)(3), Aug. 26, 1992, 106

Stat. 944, 946; Pub. L. 104–320, §8(a), Oct. 19, 1996,

110 Stat. 3872.)

AMENDMENTS

1996—Subsec. (c). Pub. L. 104–320, §8(a), redesignated

subsec. (d) as (c) and struck out former subsec. (c)

which read as follows: ‘‘The head of any agency that is

a party to an arbitration proceeding conducted under

this subchapter is authorized to terminate the arbitration proceeding or vacate any award issued pursuant to

the proceeding before the award becomes final by serv-
Page 77 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 584

1So in original. Probably should not be capitalized.

2See References in Text note below.

ing on all other parties a written notice to that effect,

in which case the award shall be null and void. Notice

shall be provided to all parties to the arbitration proceeding of any request by a party, nonparty participant

or other person that the agency head terminate the arbitration proceeding or vacate the award. An employee

or agent engaged in the performance of investigative or

prosecuting functions for an agency may not, in that or

a factually related case, advise in a decision under this

subsection to terminate an arbitration proceeding or to

vacate an arbitral award, except as witness or counsel

in public proceedings.’’

Subsecs. (d), (e). Pub. L. 104–320, §8(a)(2), redesignated

subsec. (e) as (d). Former subsec. (d) redesignated (c).

Subsecs. (f), (g). Pub. L. 104–320, §8(a)(1), struck out

subsecs. (f) and (g) which read as follows:

‘‘(f) An arbitral award that is vacated under subsection (c) shall not be admissible in any proceeding relating to the issues in controversy with respect to

which the award was made.

‘‘(g) If an agency head vacates an award under subsection (c), a party to the arbitration (other than the

United States) may within 30 days of such action petition the agency head for an award of fees and other expenses (as defined in section 504(b)(1)(A) of this title)

incurred in connection with the arbitration proceeding.

The agency head shall award the petitioning party

those fees and expenses that would not have been incurred in the absence of such arbitration proceeding,

unless the agency head or his or her designee finds that

special circumstances make such an award unjust. The

procedures for reviewing applications for awards shall,

where appropriate, be consistent with those set forth in

subsection (a)(2) and (3) of section 504 of this title. Such

fees and expenses shall be paid from the funds of the

agency that vacated the award.’’

1992—Pub. L. 102–354, §3(b)(2), renumbered section 590

of this title as this section.

Subsec. (g). Pub. L. 102–354, §5(b)(3), substituted ‘‘fees

and other expenses’’ for ‘‘attorney fees and expenses’’.

§ 581. Judicial Review 1

(a) Notwithstanding any other provision of

law, any person adversely affected or aggrieved

by an award made in an arbitration proceeding

conducted under this subchapter may bring an

action for review of such award only pursuant to

the provisions of sections 9 through 13 of title 9.

(b) A decision by an agency to use or not to

use a dispute resolution proceeding under this

subchapter shall be committed to the discretion

of the agency and shall not be subject to judicial

review, except that arbitration shall be subject

to judicial review under section 10(b) 2 of title 9.

(Added Pub. L. 101–552, §4(b), Nov. 15, 1990, 104

Stat. 2744, §591; renumbered §581 and amended

Pub. L. 102–354, §3(b)(2), (4), Aug. 26, 1992, 106

Stat. 944, 945; Pub. L. 104–320, §8(b), Oct. 19, 1996,

110 Stat. 3872.)

REFERENCES IN TEXT

Section 10(b) of title 9, referred to in subsec. (b), was

redesignated section 10(c) of title 9 by Pub. L. 107–169,

§1(4), May 7, 2002, 116 Stat. 132.

PRIOR PROVISIONS

A prior section 581 was renumbered section 571 of this

title.

Another prior section 581 was renumbered section 561

of this title.

AMENDMENTS

1996—Subsec. (b). Pub. L. 104–320, which directed that

section 581(d) of this title be amended by striking ‘‘(1)’’

after ‘‘(b)’’ and by striking par. (2), was executed to

subsec. (b) of this section to reflect the probable intent

of Congress. Prior to amendment, par. (2) read as follows: ‘‘A decision by the head of an agency under section 580 to terminate an arbitration proceeding or vacate an arbitral award shall be committed to the discretion of the agency and shall not be subject to judicial review.’’

1992—Pub. L. 102–354, §3(b)(2), renumbered section 591

of this title as this section.

Subsec. (b)(2). Pub. L. 102–354, §3(b)(4), substituted

‘‘section 580’’ for ‘‘section 590’’.

[§ 582. Repealed. Pub. L. 104–320, § 4(b)(1), Oct.

19, 1996, 110 Stat. 3871]

Section, added Pub. L. 101–552, §4(b), Nov. 15, 1990, 104

Stat. 2744, §592; renumbered §582, Pub. L. 102–354,

§3(b)(2), Aug. 26, 1992, 106 Stat. 944, related to compilation of data on use of alternative means of dispute resolution in conducting agency proceedings.

§ 583. Support services

For the purposes of this subchapter, an agency

may use (with or without reimbursement) the

services and facilities of other Federal agencies,

State, local, and tribal governments, public and

private organizations and agencies, and individuals, with the consent of such agencies, organizations, and individuals. An agency may accept

voluntary and uncompensated services for purposes of this subchapter without regard to the

provisions of section 1342 of title 31.

(Added Pub. L. 101–552, §4(b), Nov. 15, 1990, 104

Stat. 2745, §593; renumbered §583, Pub. L. 102–354,

§3(b)(2), Aug. 26, 1992, 106 Stat. 944; amended

Pub. L. 104–320, §5, Oct. 19, 1996, 110 Stat. 3871.)

PRIOR PROVISIONS

Prior sections 583 to 590 were renumbered sections 573

to 580 of this title, respectively.

Other prior sections 583 to 590 were renumbered sections 563 to 570 of this title, respectively.

AMENDMENTS

1996—Pub. L. 104–320 inserted ‘‘State, local, and tribal

governments,’’ after ‘‘other Federal agencies,’’.

1992—Pub. L. 102–354 renumbered section 593 of this

title as this section.

§ 584. Authorization of appropriations

There are authorized to be appropriated such

sums as may be necessary to carry out the purposes of this subchapter.

(Added Pub. L. 104–320, §10(a), Oct. 19, 1996, 110

Stat. 3873.)

SUBCHAPTER V—ADMINISTRATIVE

CONFERENCE OF THE UNITED STATES

AMENDMENTS

1992—Pub. L. 102–354, §2(1), Aug. 26, 1992, 106 Stat. 944,

redesignated subchapter III of this chapter as this subchapter.

TERMINATION OF ADMINISTRATIVE CONFERENCE OF

UNITED STATES

Pub. L. 104–52, title IV, Nov. 19, 1995, 109 Stat. 480,

provided: ‘‘For necessary expenses of the Administrative Conference of the United States, established under

subchapter V of chapter 5 of title 5, United States Code,

$600,000: Provided, That these funds shall only be available for the purposes of the prompt and orderly termination of the Administrative Conference of the United

States by February 1, 1996.’’