I

104TH CONGRESS

2D SESSION H. R. 4194

To reauthorize alternative means of dispute resolution in the Federal

administrative process, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

SEPTEMBER 26, 1996

Mr. HYDE (for himself, Mr. GEKAS, and Mr. REED) introduced the following

bill; which was referred to the Committee on the Judiciary

A BILL

To reauthorize alternative means of dispute resolution in

the Federal administrative process, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Administrative Dispute

5 Resolution Act of 1996’’.

6 SEC. 2. AMENDMENT TO DEFINITIONS.

7 Section 571 of title 5, United States Code, is amend8 ed—

9 (1) in paragraph (3)—
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1 (A) by striking ‘‘, in lieu of an adjudication

2 as defined in section 551(7) of this title,’’;

3 (B) by striking ‘‘settlement negotiations,’’;

4 and

5 (C) by striking ‘‘and arbitration’’ and in6 serting ‘‘arbitration, and use of ombuds’’; and

7 (2) in paragraph (8)—

8 (A) in subparagraph (B) by striking ‘‘deci9 sion,’’ and inserting ‘‘decision;’’; and

10 (B) by striking the matter following sub11 paragraph (B).

12 SEC. 3. AMENDMENTS TO CONFIDENTIALITY PROVISIONS.

13 (a) LIMITATION OF CONFIDENTIALITY APPLICATION

14 TO COMMUNICATION.—Subsections (a) and (b) of section

15 574 of title 5, United States Code, are each amended in

16 the matter before paragraph (1) by striking ‘‘any informa17 tion concerning’’.

18 (b) DISPUTE RESOLUTION COMMUNICATION.—Sec19 tion 574(b)(7) of title 5, United States Code, is amended

20 to read as follows:

21 ‘‘(7) except for dispute resolution communica22 tions generated by the neutral, the dispute resolution

23 communication was provided to or was available to

24 all parties to the dispute resolution proceeding.’’.
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1 (c) ALTERNATIVE CONFIDENTIALITY PROCE2 DURES.—Section 574(d) of title 5, United States Code,

3 is amended—

4 (1) by inserting ‘‘(1)’’ after ‘‘(d)’’; and

5 (2) by adding at the end thereof the following

6 new paragraph:

7 ‘‘(2) To qualify for the exemption established under

8 subsection (j), an alternative confidential procedure under

9 this subsection may not provide for less disclosure than

10 the confidential procedures otherwise provided under this

11 section.’’.

12 (d) EXEMPTION FROM DISCLOSURE BY STATUTE.—

13 Section 574 of title 5, United States Code, is amended

14 by amending subsection (j) to read as follows:

15 ‘‘(j) A dispute resolution communication which is be16 tween a neutral and a party and which may not be dis17 closed under this section shall also be exempt from disclo18 sure under section 552(b)(3).’’.

19 SEC. 4. AMENDMENT TO REFLECT THE CLOSURE OF THE

20 ADMINISTRATIVE CONFERENCE.

21 (a) PROMOTION OF ADMINISTRATIVE DISPUTE RES22 OLUTIONS.—Section 3(a)(1) of the Administrative Dis23 pute Resolution Act (5 U.S.C. 571 note; Public Law 101–

24 552; 104 Stat. 2736) is amended to read as follows:
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1 ‘‘(1) consult with the agency designated by, or

2 the interagency committee designated or established

3 by, the President under section 573 of title 5, Unit4 ed States Code, to facilitate and encourage agency

5 use of alternative dispute resolution under sub6 chapter IV of chapter 5 of such title; and’’.

7 (b) COMPILATION OF INFORMATION.—

8 (1) IN GENERAL.—Section 582 of title 5,

9 United States Code, is repealed.

10 (2) TECHNICAL AND CONFORMING AMEND11 MENT.—The table of sections for chapter 5 of title

12 5, United States Code, is amended by striking the

13 item relating to section 582.

14 (c) FEDERAL MEDIATION AND CONCILIATION SERV15 ICE.—Section 203(f) of the Labor Management Relations

16 Act, 1947 (29 U.S.C. 173(f)) is amended by striking ‘‘the

17 Administrative Conference of the United States and other

18 agencies’’ and inserting ‘‘the agency designated by, or the

19 interagency committee designated or established by, the

20 President under section 573 of title 5, United States

21 Code,’’.

22 SEC. 5. AMENDMENTS TO SUPPORT SERVICES PROVISION.

23 Section 583 of title 5, United States Code, is amend24 ed by inserting ‘‘State, local, and tribal governments,’’

25 after ‘‘other Federal agencies,’’.
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1 SEC. 6. AMENDMENTS TO THE CONTRACT DISPUTES ACT.

2 Section 6 of the Contract Disputes Act of 1978 (41

3 U.S.C. 605) is amended—

4 (1) in subsection (d) by striking the second sen5 tence and inserting: ‘‘The contractor shall certify the

6 claim when required to do so as provided under sub7 section (c)(1) or as otherwise required by law.’’; and

8 (2) in subsection (e) by striking the first sen9 tence.

10 SEC. 7. AMENDMENTS ON ACQUIRING NEUTRALS.

11 (a) EXPEDITED HIRING OF NEUTRALS.—

12 (1) COMPETITIVE REQUIREMENTS IN DEFENSE

13 AGENCY CONTRACTS.—Section 2304(c)(3)(C) of title

14 10, United States Code, is amended by striking

15 ‘‘agency, or’’ and inserting ‘‘agency, or to procure

16 the services of an expert or neutral for use’’.

17 (2) COMPETITIVE REQUIREMENTS IN FEDERAL

18 CONTRACTS.—Section 303(c)(3)(C) of the Federal

19 Property and Administrative Services Act of 1949

20 (41 U.S.C. 253(c)(3)(C)), is amended by striking

21 ‘‘agency, or’’ and inserting ‘‘agency, or to procure

22 the services of an expert or neutral for use’’.

23 (b) REFERENCES TO THE ADMINISTRATIVE CON24 FERENCE OF THE UNITED STATES.—Section 573 of title

25 5, United States Code, is amended—
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1 (1) by striking subsection (c) and inserting the

2 following:

3 ‘‘(c) The President shall designate an agency or des4 ignate or establish an interagency committee to facilitate

5 and encourage agency use of dispute resolution under this

6 subchapter. Such agency or interagency committee, in con7 sultation with other appropriate Federal agencies and pro8 fessional organizations experienced in matters concerning

9 dispute resolution, shall—

10 ‘‘(1) encourage and facilitate agency use of al11 ternative means of dispute resolution; and

12 ‘‘(2) develop procedures that permit agencies to

13 obtain the services of neutrals on an expedited

14 basis.’’; and

15 (2) in subsection (e) by striking ‘‘on a roster es16 tablished under subsection (c)(2) or a roster main17 tained by other public or private organizations, or

18 individual’’.

19 SEC. 8. ARBITRATION AWARDS AND JUDICIAL REVIEW.

20 (a) ARBITRATION AWARDS.—Section 580 of title 5,

21 United States Code, is amended—

22 (1) by striking subsections (c), (f), and (g); and

23 (2) by redesignating subsections (d) and (e) as

24 subsections (c) and (d), respectively.
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1 (b) JUDICIAL AWARDS.—Section 581(d) of title 5,

2 United States Code, is amended—

3 (1) by striking ‘‘(1)’’ after ‘‘(b)’’; and

4 (2) by striking paragraph (2).

5 (c) AUTHORIZATION OF ARBITRATION.—Section 575

6 of title 5, United States Code, is amended—

7 (1) in subsection (a)(2), by striking ‘‘Any’’ and

8 inserting ‘‘The’’;

9 (2) in subsection (a)(2), by adding at the end

10 the following: ‘‘Each such arbitration agreement

11 shall specify a maximum award that may be issued

12 by the arbitrator and may specify other conditions

13 limiting the range of possible outcomes.’’;

14 (3) in subsection (b)—

15 (A) by striking ‘‘may offer to use arbitra16 tion for the resolution of issues in controversy,

17 if’’ and inserting ‘‘shall not offer to use arbitra18 tion for the resolution of issues in controversy

19 unless’’; and

20 (B) by striking in paragraph (1) ‘‘has au21 thority’’ and inserting ‘‘would otherwise have

22 authority’’; and

23 (4) by adding at the end the following:

24 ‘‘(c) Prior to using binding arbitration under this

25 subchapter, the head of an agency, in consultation with
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1 the Attorney General and after taking into account the

2 factors in section 572(b), shall issue guidance on the ap3 propriate use of binding arbitration and when an officer

4 or employee of the agency has authority to settle an issue

5 in controversy through binding arbitration.’’.

6 SEC. 9. PERMANENT AUTHORIZATION OF THE ALTER7 NATIVE DISPUTE RESOLUTION PROVISIONS

8 OF TITLE 5, UNITED STATES CODE.

9 The Administrative Dispute Resolution Act (Public

10 Law 101–552; 104 Stat. 2747; 5 U.S.C. 571 note) is

11 amended by striking section 11.

12 SEC. 10. AUTHORIZATION OF APPROPRIATIONS.

13 (a) IN GENERAL.—Subchapter IV of title 5, United

14 States Code, is amended by adding at the end thereof the

15 following new section:

16 ‘‘§ 584. Authorization of appropriations

17 ‘‘There are authorized to be appropriated such sums

18 as may be necessary to carry out the purposes of this sub19 chapter.’’.

20 (b) TECHNICAL AND CONFORMING AMENDMENT.—

21 The table of sections for chapter 5 of title 5, United States

22 Code, is amended by inserting after the item relating to

23 section 583 the following:

‘‘584. Authorization of appropriations.’’.
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1 SEC. 11. REAUTHORIZATION OF NEGOTIATED RULEMAKING

2 ACT OF 1990.

3 (a) PERMANENT REAUTHORIZATION.—Section 5 of

4 the Negotiated Rulemaking Act of 1990 (Public Law 101–

5 648; 5 U.S.C. 561 note) is repealed.

6 (b) CLOSURE OF ADMINISTRATIVE CONFERENCE.—

7 (1) IN GENERAL.—Section 569 of title 5, Unit8 ed States Code, is amended—

9 (A) by amending the section heading to

10 read as follows:

11 ‘‘§ 569. Encouraging negotiated rulemaking’’; and

12 (B) by striking subsections (a) through (g)

13 and inserting the following:

14 ‘‘(a) The President shall designate an agency or des15 ignate or establish an interagency committee to facilitate

16 and encourage agency use of negotiated rulemaking. An

17 agency that is considering, planning, or conducting a ne18 gotiated rulemaking may consult with such agency or com19 mittee for information and assistance.

20 ‘‘(b) To carry out the purposes of this subchapter,

21 an agency planning or conducting a negotiated rulemaking

22 may accept, hold, administer, and utilize gifts, devises,

23 and bequests of property, both real and personal if that

24 agency’s acceptance and use of such gifts, devises, or be25 quests do not create a conflict of interest. Gifts and be26 quests of money and proceeds from sales of other property
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1 received as gifts, devises, or bequests shall be deposited

2 in the Treasury and shall be disbursed upon the order of

3 the head of such agency. Property accepted pursuant to

4 this section, and the proceeds thereof, shall be used as

5 nearly as possible in accordance with the terms of the

6 gifts, devises, or bequests.’’.

7 (2) TECHNICAL AND CONFORMING AMEND8 MENT.—The table of sections for chapter 5 of title

9 5, United States Code, is amended by striking the

10 item relating to section 569 and inserting the follow11 ing:

‘‘569. Encouraging negotiated rulemaking.’’.

12 (c) EXPEDITED HIRING OF CONVENORS AND

13 FACILITATORS.—

14 (1) DEFENSE AGENCY CONTRACTS.—Section

15 2304(c)(3)(C) of title 10, United States Code, is

16 amended by inserting ‘‘or negotiated rulemaking’’

17 after ‘‘alternative dispute resolution’’.

18 (2) FEDERAL CONTRACTS.—Section

19 303(c)(3)(C) of the Federal Property and Adminis20 trative Services Act of 1949 (41 U.S.C.

21 253(c)(3)(C)), is amended by inserting ‘‘or nego22 tiated rulemaking’’ after ‘‘alternative dispute

23 resolution’’.

24 (d) AUTHORIZATION OF APPROPRIATIONS.—
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1 (1) IN GENERAL.—Subchapter III of title 5,

2 United States Code, is amended by adding at the

3 end thereof the following new section:

4 ‘‘§ 570a. Authorization of appropriations

5 ‘‘There are authorized to be appropriated such sums

6 as may be necessary to carry out the purposes of this sub7 chapter.’’.

8 (2) TECHNICAL AND CONFORMING AMEND9 MENT.—The table of sections for chapter 5 of title

10 5, United States Code, is amended by inserting after

11 the item relating to section 570 the following:

‘‘570a. Authorization of appropriations.’’.

12 (e) NEGOTIATED RULEMAKING COMMITTEES.—The

13 Director of the Office of Management and Budget shall—

14 (1) within 180 days of the date of the enact15 ment of this Act, take appropriate action to expedite

16 the establishment of negotiated rulemaking commit17 tees and committees established to resolve disputes

18 under the Administrative Dispute Resolution Act, in19 cluding, with respect to negotiated rulemaking com20 mittees, eliminating any redundant administrative

21 requirements related to filing a committee charter

22 under section 9 of the Federal Advisory Committee

23 Act (5 U.S.C. App.) and providing public notice of

24 such committee under section 564 of title 5, United

25 States Code; and
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1 (2) within one year of the date of the enact2 ment of this Act, submit recommendations to Con3 gress for any necessary legislative changes.

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