Page images
PDF
EPUB

§ 104. Independent establishment

For the purpose of this title, "independent establishment" means

(1) an establishment in the executive branch (other than the United States Postal Service or the Postal Rate Commission) which is not an Executive department, military department, Government corporation, or part thereof, or part of an independent establishment; and

(2) the General Accounting Office. $ 105. Executive agency

For the purpose of this title, “Executive agency" means an Executive department, a Government corporation, and an independent establishment.

[merged small][merged small][ocr errors]
[blocks in formation]

SUBCHAPTER IV–ALTERNATIVE MEANS OF DISPUTE RESOLUTION IN THE

ADMINISTRATIVE PROCESS
Sec. 571. Definitions.
Sec. 572. General authority.
Sec. 573. Neutrals.
Sec. 574. Confidentiality.
Sec. 575. Authorization of arbitration.
Sec. 576. Enforcement of arbitration agreements.
Sec. 577. Arbitrators.
Sec. 578. Authority of the arbitrator.
Sec. 579. Arbitration proceedings.
Sec. 580. Arbitration awards.
Sec. 581. Judicial review.
Sec. 582. [Repealed.]
Sec. 583. Support services.
584.1 Authorization of appropriations.

[blocks in formation]

SUBCHAPTER II-ADMINISTRATIVE PROCEDURE $ 551. Definitions For the purpose of this subchapter

(1) "agency” means each authority of the Government of the United States, whether or not it is within or subject to review by another agency, but does not include

(A) the Congress;
(B) the courts of the United States;

(C) the governments of the territories or possessions of the United States;

(D) the government of the District of Columbia; or except as to the requirements of section 552 of this title

(E) agencies composed of representatives of the parties or of representatives of organizations of the parties to the disputes determined by them;

(F) courts martial and military commissions;

(G) military authority exercised in the field in time of war or in occupied territory; or

(H) functions conferred by sections 1738, 1739, 1743, and 1744 of title 12; chapter 2 of title 41; subchapter II of chapter 471 of title 49; or sections 1884, 1891–1902, and former section 1641(b)(2), of title 50, appendix;

1 So in law.

(2) “person” includes an individual, partnership, corporation, association, or public or private organization other than an agency;

(3) “party” includes a person or agency named or admitted as a party, or properly seeking and entitled as of right to be admitted as a party, in an agency proceeding, and a person or agency admitted by an agency as a party for limited purposes;

(4) "rule” means the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting, or practices bearing on any of the foregoing;

(5) "rule making" means agency process for formulating, amending, or repealing a rule;

(6) "order" means the whole or a part of a final disposition, whether affirmative, negative, injunctive, or declaratory in form, of an agency in a matter other than rule making but including licensing;

(7) "adjudication" means agency process for the formulation of an order;

(8) “license” includes the whole or a part of an agency permit, certificate, approval, registration, charter, membership, statutory exemption or other form of permission;

(9) "licensing" includes agency process respecting the grant, renewal, denial, revocation, suspension, annulment, withdrawal, limitation, amendment, modification, or conditioning of a license; (10) "sanction" includes the whole or a part of an agency

(A) prohibition, requirement, limitation, or other condition affecting the freedom of a person;

(B) withholding of relief;
(C) imposition of penalty or fine;

(D) destruction, taking, seizure, or withholding of property;

(E) assessment of damages, reimbursement, restitution, compensation, costs, charges, or fees;

(F) requirement, revocation, or suspension of a license;

or

(G) taking other compulsory or restrictive action;
(11) "relief” includes the whole or a part of an agency-

(A) grant of money, assistance, license, authority, exemption, exception, privilege, or remedy;

(B) recognition of a claim, right, immunity, privilege, exemption, or exception; or

(C) taking of other action on the application or petition of, and beneficial to, a person;

(12) “agency proceeding” means an agency process as defined by paragraphs (5), (7), and (9) of this section;

(13) “agency action” includes the whole or a part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act; and

(14) “ex parte communication” means an oral or written. communication not on the public record with respect to which reasonable prior notice to all parties is not given, but it shall not include requests for status reports on any matter or proceeding covered by this subchapter.

[blocks in formation]

SUBCHAPTER IV-ALTERNATIVE MEANS OF DISPUTE

RESOLUTION IN THE ADMINISTRATIVE PROCESS 2 $571. Definitions

For the purposes of this subchapter, the term

2 Sections 2 and 3 of the Administrative Dispute Resolution Act (P.L. 101–552), which originally enacted this subchapter, provide: SEC. 2. [5 U.S.C. 581 note] FINDINGS. 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. SEC. 3. [5 U.S.C. 581 note] PROMOTION OF ALTERNATIVE MEANS OF DISPUTE

RESOLUTION. (a) PROMULGATION OF AGENCY POLICY.-Each agency shall adopt a policy that addresses the use of alternative means of dispute resolution and case management. În developing such a policy, each agency shall

(1) consult with the Administrative Conference of the United States and the Federal Mediation and Conciliation Service; 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 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.

Continued

(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

(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, the Federal Acquisition Regulation shall be amended, as necessary, to carry out this Act 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 (41 U.S.Č. 405(a)).

« PreviousContinue »