5 U.S.C. § 571 — Definitions

Page 158 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 570a Editorial Notes 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 pur- poses 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 ADMIN- ISTRATIVE PROCESS Editorial Notes CODIFICATION Another subchapter IV (§ 581 et seq.) relating to nego- tiated rulemaking procedure was redesignated sub- chapter 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 imme- diately 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, li- censing, 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 lim- ited to, conciliation, facilitation, mediation, factfinding, minitrials, arbitration, and use of ombuds, or any combination thereof; (4) ‘‘award’’ means any decision by an arbi- trator resolving the issues in controversy; (5) ‘‘dispute resolution communication’’ means any oral or written communication pre- pared 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 arbi- tral award reached as a result of a dispute res- olution 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 pro- vided— (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 dis- closed; (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 deci- sion; or (B) between persons who would be substan- tially 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 par- ties, a person who will be significantly af- fected 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 quali- fied 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.) Editorial Notes CODIFICATION Section 571 of former Title 5, Executive Departments and Government Officers and Employees, was trans- ferred 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’’. Par. (8). Pub. L. 102–354, § 5(b)(2), amended par. (8) gen- erally. Prior to amendment, par. (8) read as follows: ‘‘ ‘issue in controversy’ means an issue which is mate- rial to a decision concerning an administrative pro- gram of an agency, and with which there is disagree- ment between the agency and persons who would be substantially affected by the decision but shall not ex- tend to matters specified under the provisions of sec- tions 2302 and 7121(c) of title 5;’’. Statutory Notes and Related Subsidiaries 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, Page 159 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 571 § 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, pro- vided 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, sec- tion 3556 of Title 31, Money and Finance, and sections 253 and 605 of Title 41, Public Contracts, repealing sec- tion 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 provi- sions set out as notes under this section, and repealing provisions set out as notes under this section and sec- tion 561 of this title] may be cited as the ‘Administra- tive Dispute Resolution Act of 1996’.’’ SHORT TITLE Pub. L. 101–552, § 1, Nov. 15, 1990, 104 Stat. 2736, pro- vided 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 Ju- dicial 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 pro- visions 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, pro- vided that: ‘‘The Congress finds that— ‘‘(1) administrative procedure, as embodied in chap- ter 5 of title 5, United States Code, and other stat- utes, is intended to offer a prompt, expert, and inex- pensive means of resolving disputes as an alternative to litigation in the Federal courts; ‘‘(2) administrative proceedings have become in- creasingly formal, costly, and lengthy resulting in unnecessary expenditures of time and in a decreased likelihood of achieving consensual resolution of dis- putes; ‘‘(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 cre- ative, efficient, and sensible outcomes; ‘‘(5) such alternative means may be used advan- tageously in a wide variety of administrative pro- grams; ‘‘(6) explicit authorization of the use of well-tested dispute resolution techniques will eliminate ambi- guity of agency authority under existing law; ‘‘(7) Federal agencies may not only receive the ben- efit of techniques that were developed in the private sector, but may also take the lead in the further de- velopment and refinement of such techniques; and ‘‘(8) the availability of a wide range of dispute reso- lution procedures, and an increased understanding of the most effective use of such procedures, will en- hance 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 alter- native means of dispute resolution and case manage- ment. 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 dis- putes 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 offi- cial 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 train- ing on a regular basis for the dispute resolution spe- cialist of the agency and other employees involved in implementing the policy of the agency developed under subsection (a). Such training should encompass the the- ory and practice of negotiation, mediation, arbitration, or related techniques. The dispute resolution specialist shall periodically recommend to the agency head agen- cy 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 assist- ance 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 enact- ment of this Act [Nov. 15, 1990], the Federal Acquisi- tion 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, pro- vided 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 rep- resentation by persons other than attorneys of parties in alternative dispute resolution proceedings and shall identify any of its administrative programs with nu- merous claims or disputes before the agency and deter- mine— ‘‘(1) the extent to which individuals are represented or assisted by attorneys or by persons who are not at- torneys; and ‘‘(2) whether the subject areas of the applicable pro- ceedings or the procedures are so complex or special- ized that only attorneys may adequately provide such representation or assistance. ‘‘(b) REPRESENTATION AND ASSISTANCE BY NONATTOR- NEYS.—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 administra- tive program identified under subsection (a); ‘‘(2) such agency determines that the proceeding or procedure does not necessitate representation or as- sistance 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. Page 160 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 572 ‘‘(c) DISQUALIFICATION OF REPRESENTATION OR ASSIST- ANCE.—Any agency that adopts regulations under sub- chapter 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 be- fore such agency to— ‘‘(1) ensure that any rules pertaining to disquali- fication of attorneys from practicing before the agen- cy shall also apply, as appropriate, to other persons who provide representation or assistance; and ‘‘(2) establish effective agency procedures for en- forcing such rules of practice and for receiving com- plaints 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 Amend- ments 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 con- troversy that relates to an administrative pro- gram, if the parties agree to such proceeding. (b) An agency shall consider not using a dis- pute 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 ac- cepted generally as an authoritative prece- dent; (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 pro- ceeding would not likely serve to develop a recommended policy for the agency; (3) maintaining established policies is of spe- cial importance, so that variations among in- dividual 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 pro- ceeding cannot provide such a record; and (6) the agency must maintain continuing ju- risdiction over the matter with authority to alter the disposition of the matter in the light of changed circumstances, and a dispute reso- lution proceeding would interfere with the agency’s fulfilling that requirement. (c) Alternative means of dispute resolution au- thorized under this subchapter are voluntary procedures which supplement rather than limit other available agency dispute resolution tech- niques. (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.) Editorial Notes CODIFICATION Section 572 of former Title 5, Executive Departments and Government Officers and Employees, was trans- ferred 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 tem- porary officer or employee of the Federal Gov- ernment or any other individual who is accept- able to the parties to a dispute resolution pro- ceeding. A neutral shall have no official, finan- cial, 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, fa- cilitator, 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 dis- pute resolution under this subchapter. Such agency or interagency committee, in consulta- tion with other appropriate Federal agencies and professional organizations experienced in matters concerning dispute resolution, shall— (1) encourage and facilitate agency use of al- ternative means of dispute resolution; and (2) develop procedures that permit agencies to obtain the services of neutrals on an expe- dited 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 agree- ment that provides for the reimbursement by the user agency or the parties of the full or par- tial 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 train- ing in connection with alternative means of dis- pute resolution. The parties in a dispute resolu- tion 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.) Editorial Notes CODIFICATION Section 573 of former Title 5, Executive Departments and Government Officers and Employees, was trans- ferred to section 2258 of Title 7, Agriculture. PRIOR PROVISIONS A prior section 573 was renumbered section 593 of this title.