Published August 2, 1996, 61 Fed. Reg. 40424
- Application of the Final ADR Policy
- Purpose of the Final ADR Policy
- Implementation of the Final ADR Policy
SUMMARY: The Department of the Interior (Department) has developed this final Alternative Dispute Resolution (ADR) policy (Final ADR Policy) to implement a comprehensive program within each of its bureaus and offices (bureaus). This Final ADR Policy also addresses the Negotiated Rulemaking Act, Public Law No. 101-648. The Department is adopting this Final ADR Policy to apply tested practices and techniques to selected program disputes. The Department, through its bureaus, will implement ADR pilot programs and other program initiatives in an effort to establish a baseline of experience in the practical uses of ADR. The Department will continue to assess the results of the ADR initiatives in conjunction with both external and internal comments received, after publication of a Final ADR Policy in the Federal Register. The Department seeks comments from the public, including, among others, those persons whose activities the Department regulates, on any aspect of this Final ADR Policy and its implementation, and those persons who have engaged in or may in the future engage in ADR processes with the Department. At the end of the 60-day comment period, the Department will consider issues raised by interested persons and may modify the Final ADR Policy based on public comment.
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The Department's ADR policy, first promulgated June 13, 1994, as an interim ADR policy for a period of 2 years, authorized and encouraged bureaus within the Department to employ consensual methods of dispute resolution as alternatives to litigation. 59 FR 30368. Under the Interim ADR Policy, bureaus were required: (1) To designate a senior official as a Bureau Dispute Resolution Specialist (BDRS); (2) to establish training programs in the use of dispute resolution methods; (3) to adopt a plan on the use of ADR techniques; and (4) to review the standard language in bureau contracts, grants, or other agreements, to determine whether to include a provision on ADR. Bureaus were also required to consult with the Department's Dispute Resolution Council (IDRC) on the implementation of their ADR plans.
Additionally, the Interim ADR Policy required each bureau to adopt a formal policy as to how it intended to implement ADR in each of the following areas: (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 Department; and (g) other Departmental action.
The Secretary promulgated the Interim ADR Policy to reduce the time, cost, inefficiencies, and contentiousness that are too often associated with litigation and other adversarial dispute mechanisms. Moreover, experience at other Federal agencies has demonstrated that ADR can help achieve mutually acceptable solutions to disputes more effectively than either litigation or administrative adjudication. In fact, Vice President Al Gore recommended in September 1993 that Federal agencies "increase the use of alternative means of dispute resolution." National Performance Review, Recommendation REG06 (Sept. 7, 1993).
While ADR techniques have proven to be useful in resolving serious conflicts, the day-to-day operations of the Department's bureaus should also provide conflict avoidance methods, wherever possible. Moreover, the Interim ADR Policy, specifically cautioned that:
[A bureau] 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 [bureau];
(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 [bureau] 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 [bureau's] fulfilling that requirement.
The decision whether to use ADR, however, remains within each bureau's discretion, and participation in ADR processes is by mutual consent of the disputants.
The Interim ADR Policy fostered the use of ADR by ensuring appropriate protection of parties' and neutrals' communication. The ADR policy, however, is not a statute exempting disclosure under the Freedom of Information Act (FOIA). 5 U.S.C. 552. To establish a baseline of understanding, concerned parties should establish confidentiality guidelines consistent with FOIA requirements before entering into negotiations.
Within the limitations set forth in the Interim ADR Policy, and elsewhere, the Department plans to establish, in the Final ADR Policy, those contexts in which the use of ADR facilitates fairer, faster, or more rational resolutions of disputes than present dispute resolution methods provide. Additionally, the Department will continue to review the Final ADR Policy. On the basis of this evaluation, the Department will consider modifying any of its current procedures or rules in the future, as appropriate, to allow for greater use of ADR.
In enacting the Negotiated Rulemaking Act, Public Law No. 101-648, Congress indicated its concern that traditional notice and comment rulemaking procedures may discourage agreement among the potentially affected parties and the Federal Government. Congress addressed this concern by purposefully designing the Negotiated Rulemaking Act's procedures to facilitate the cooperative development of regulations by interested persons and agencies. Moreover, Vice President Gore's report recently recommended improving agencies' regulatory systems by "[e]ncourag[ing] agencies to use negotiated rulemaking more frequently in developing new rules." National Performance Review, Recommendation REG03 (1993).
Negotiated rulemaking (Reg-Neg) does not replace the traditional notice and opportunity for public comment rulemaking. Rather, Reg-Neg supplements the more traditional process by developing consensus around the candidate proposed rule before an agency publishes it in the Federal Register. Combining early consensus-building and information-gathering with an opportunity for broad public consideration, the Reg-Neg process meets the prescription of the Administrative Procedure Act, 5 U.S.C. 551 et seq., and can facilitate more effective regulatory development and regulations. Moreover, on September 30, 1993, President Bill Clinton issued a memorandum in conjunction with the issuance of Exec. Order No. 12866 on regulatory planning and review. The memorandum required each Department to identify to the Office of Information and Regulatory Affairs at least one rulemaking within the upcoming year to be developed through Reg-Neg rulemaking or to explain why negotiated rulemaking would not be feasible, 58 FR 52391 (Oct. 7, 1993).
Decisionmakers should view Reg-Neg as one of a variety of information-gathering and consensus-building or consultative processes used to achieve effective, efficient, rational, and fair agency policy. Although the Negotiated Rulemaking Act does not address less formal decisionmaking processes, including, among others, policy roundtables and public meetings, such nonadversarial processes may help gather information to assist the Department in policy development.
Participation in informal regulatory development processes can require significant commitment of resources on the part of all participants, including Federal agencies. The Department's experience, however, has shown that consensus-building techniques can result in better policy, reduce the high rate of litigation, and lower the costs of program implementation for the Department's bureaus and the regulated community.
The Department encourages the effective use of ADR and Reg-Neg to the fullest extent compatible with existing law, and the Department's resources and missions. Based on long experience, the Department recognizes that the use of consensus-building techniques and nonadversarial planning processes can increase the wisdom, efficiency, equity, and long-term stability of Departmental decisions.
The Final ADR Policy is intended to govern both the programmatic side of the Department's broad responsibility, as well as many of the human resources aspects. With regard to human resources, the Final ADR Policy embraces the ADR policy of the Department's Office for Equal Opportunity. The use of ADR is expected to be very useful in matters involving equal employment opportunity. Workplace dispute issues beyond those governed by regulations issued by the Merit Systems Protection Board will also be governed by this policy. Where the use of ADR would impede effective supervisory action in routine matters of employee discipline or performance appraisal, supervisors may elect not to use ADR.
The Department has developed this Final ADR Policy in response to the experience gained under the Interim ADR Policy. The Final ADR Policy encourages the Department's bureaus to continue to identify disputes amenable to ADR and to use ADR, whenever practicable. After testing ADR methods in a variety of contexts during the 2-year interim period, the Department, through the IDRC, has assessed the appropriateness of the use of ADR and determined which program areas could most benefit from the institutionalization of ADR processes. Existing bureau ADR efforts should continue as this final policy is implemented.
The Department's Final ADR Policy is also designed to disseminate knowledge about ADR both within the Department and to those whom the Department serves, as well as to introduce new ADR initiatives and to provide guidelines for bureaus to apply in the implementation of ADR pilot programs. These initiatives will produce a baseline of experience that will be useful in successfully implementing the Department's Final ADR Policy. Without the full commitment and cooperation of all bureaus, the Department will lose a valuable opportunity to learn what [Page 40426] works, what does not, and how best to capture potential benefits from ADR use.
Pursuant to the guidance promulgated by the Secretary in the June 13, 1994, Interim ADR Policy, the Director, Office of Hearings and Appeals (OHA), was appointed to serve as the Department's Dispute Resolution Specialist (DRS). This high level, Department official was appointed as the DRS in order: (1) To facilitate intra-Departmental coordination and communication; (2) to ensure consistent, quality training; (3) to establish minimum qualifications for mediators, arbitrators, and certain Departmental employees with ADR responsibilities; and (4) to reduce administrative redundancy. Under the Final ADR Policy, the Director, OHA, will continue these responsibilities. The DRS will maintain an "open door" policy, welcoming inquiries from and offering assistance to the bureaus and interested persons. During the period that the Final ADR Policy is being implemented, ongoing input from the public is encouraged. Despite this focal point for ADR activity, the Department's Final ADR Policy encourages decentralized decisionmaking to the greatest extent possible.
In order to keep the Department's bureaus informed during the implementation of the Final ADR Policy, the DRS shall, within 120 days after publication of the Department final policy, convene the IDRC to address progress by the bureaus in implementing their ADR programs. Composed of the Department's Assistant Secretaries, Solicitor, and the Director of the Office of Regulatory Affairs (ORA), or their respective designees, and chaired by the DRS, the IDRC shall monitor and evaluate the Department's use of ADR and Reg-Neg and assist in intra-Departmental policy and process coordination. The IDRC shall act as an information clearinghouse, recommend personnel training courses in ADR techniques and program design, and act as the liaison between the Department and the Federal Mediation and Conciliation Service.
The Department recognizes, consistent with the philosophy of the National Performance Review, that bureaus can best evaluate and develop specific ADR programs and initiatives to meet bureau needs. Therefore, each bureau head has appointed a BDRS. The BDRSs have been trained in ADR consensus-building techniques, conflict resolution, and program design.
The DRS recommended appropriate BDRS training, with such training completed during the interim policy period. Additionally, the DRS shall provide ADR training opportunities for selected groups of senior managers of the Department, whose job responsibilities include determining or influencing how disputes will be managed. The DRS will also identify opportunities for advanced training in facilitation and mediation for Judges and attorneys within OHA, as apropriate.
The BDRS shall fully implement the bureau's alternate dispute resolution plan (ADRP) in the 12 months following promulgation of the Final ADR Policy. To facilitate the monitoring and evaluation of the bureau's initiative(s), the BDRS should address, in his/her yearly review, among other topics, the: (1) goals; (2) objectives; (3) timetables; (4) implementation strategy; (5) monitoring criteria; and (6) evaluation methodology. It is permissible if two or more bureaus adopt the same objectives and goals.
In selecting appropriate ADR pilot initiatives, the bureaus have focused, for example, on a particular category of dispute (e.g., contract cases), on a variety of disputes involving a particular organizational segment or region of the agency, or on a particular ADR process that would be applied in a variety of disputes across the bureau. In selecting a focus for an ADR pilot initiative, the Department has encouraged bureaus to consider using some of the disputes that are central to the Department's mission. While bureaus have been advised not to avoid identifying personnel and small contract disputes, for example, as candidates for a pilot initiative, they have been encouraged not to focus exclusively on these areas so that the effectiveness of ADR for a bureau can be judged in a programmatic context.
Some offices of the Department, such as the Office of the Solicitor, are assisting bureaus in carrying out their programs rather than conducting programs of their own. For the purposes of this policy, such offices should assist bureaus in implementing ADR in a programmatic context.
Consistent with the many activities and functions of the Department and the Federal Acquisition Regulations' recognition of the usefulness of ADR in Government contracts, each BDRS, or appointed designee, should review categories of all proposed new and renewal contracts, agreements, permits, memoranda of understanding, and other documents, to determine whether to include ADR provisions. Moreover, the Department encourages the use of ADR in contact disputes prior to these disputes reaching the Interior Board of Contract Appeals. To avoid duplication of effort by bureau personnel, the Office of the Solicitor, working with the Department's senior procurement official, will develop standardized ADR-related clauses that bureaus can use in contracts and other documents.
The Department expects, as well, that those bureaus with comparatively more dispute resolution experience will, on a voluntary basis, assist bureaus less familiar with dispute resolution in the development of the ADRP. The Department expects, as well, that inter-bureau initiatives such as "one stop permitting," for example, be coordinated with a BDRS. Each BDRS and others involved with the implementation of the final policy are encouraged to consult with other Federal agencies, and others in the dispute resolution field in the development of their ADR initiatives. The DRS is available to provide the names of contact persons within various Federal agencies who have effectively utilized ADR methods in resolving disputes.
Judges within OHA have been encouraged to utilize, where appropriate, ADR methods, including, among others, the use of settlement judges, minitrials, and the referral of litigants to mediation or arbitration in advance of a judge's consideration of a case on the merits.
Each BDRS shall monitor the implementation of his or her bureau's dispute resolution initiatives on an ongoing basis, using the criteria developed in their ADRP. Each BDRS shall submit to the IDRC, through the proper bureau head and Assistant Secretary, every year, an evaluation of the bureau's progress toward meeting the goals, objectives, and timetables on the basis of the methodology outlined in the ADRP. The evaluation should also discuss any unanticipated issues that each bureau may have encountered and how those issues have been or are being resolved.
A BDRS, in conjunction with the IDRC, shall catalogue and evaluate the bureaus' respective initiatives and experiences under their ADRP in its [Page 40427] yearly report to the Secretary. This evaluation, coordinated by the DRS, as chair of the IDRC, will focus on the categories of disputes and types of DR methods that were most helpful in achieving resolution of disputes.
Moreover, because the usefulness of ADR to the Department is dependent on the processes' ability to facilitate rational, fair, efficient, and stable solutions among the Department's bureaus, the regulated community, and the public, evaluation of the final policy should receive the benefit of public comment and participation. A concluding section of the evaluation should explain how dispute resolution is being integrated on a permanent basis into each bureau's program offices. This process of review, evaluation, and modification will allow each bureau to systematically and regularly improve its ADR programs.
Pursuant to Exec. Order No. 12866 and the Presidential memorandum on negotiated rulemaking, issued September 30, 1993, the Department will use, where appropriate, Reg-Neg or other consensus-building techniques to develop rules that are fair, technically accurate, and clear. Each bureau will evaluate, prior to drafting or amending any regulation, whether Reg-Neg is appropriate for developing or amending that regulation and will explain, on the regulatory alert form submitted to the ORA, the basis for determining whether or not the regulation will be developed or amended using Reg-Neg.
In explaining whether Reg-Neg should be used for a particular rulemaking, each bureau should address at least the following:
(1) Whether there exists a small and identifiable group of constituents (the "parties") with significant interests in the rulemaking, so that all reasonably foreseeable significant interests can be represented by individuals in the negotiation;
(2) Whether the parties believe it to be in their best interest to enter into a negotiated rulemaking;
(3) Whether the parties are willing and able to enter into negotiated rulemaking in good faith;
(4) Whether any single party has, or is perceived to have, the ability to dominate negotiations, thereby making a compromise solution unlikely;
(5) Whether there are clear and identifiable issues that are agreed to be ripe for a negotiated solution;
(6) Whether a negotiated solution would require one or more parties to compromise a fundamental value;
(7) Whether the use of negotiated rulemaking is reasonably likely to result in an agreement or course of action satisfactory to all parties; and
(8) Whether there are legal deadlines or other legal issues that either mitigate against negotiation or provide incentives to reach a negotiated solution.
If a bureau has decided to enter into a negotiated rulemaking, it will prepare a brief report describing the goals, objectives, anticipated parties, and projected timetables of the negotiation. Throughout the negotiation, the bureau will prepare brief periodic reports discussing the progress toward achieving the goals, objectives, and timetables of the negotiation, and highlighting any successes and unanticipated events or issues encountered during the negotiation. These reports shall be submitted to ORA and the IDRC.
At the end of the initial 12 months under the Final ADR Policy, ORA, the DRS, and IDRC shall prepare information to be included in the yearly ADR report to the Secretary evaluating the Department's experiences with negotiated rulemaking. This report will focus upon the types of policies, categories of rulemakings, and methods of negotiation that were most successful in achieving customer satisfaction and the cost-effective implementation of mutually agreeable rulemakings. This report will be based upon evaluations conducted by the Bureaus and submitted to ORA, IDRC, and the DRS for review and assimilation into the report to the Secretary.
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Dated: July 15, 1996.
Bonnie R. Cohen,
Assistant Secretary--Policy, Management and Budget.
The following terms are commonly associated with ADR and negotiated rulemaking and contain many recognized forms of ADR. They are provided for the reader's convenience and have been adapted from the ADR Act (now expired), the Negotiated Rulemaking Act, and other sources.
Alternative means of dispute resolution--an inclusive term used to describe a variety of problem-solving processes that are used in lieu of litigation or administrative adjudication to resolve issues in controversy, including but not limited to, settlement negotiations, conciliation, facilitation, mediation, fact-finding, minitrials, and arbitration, or any combination thereof.
Arbitration--a process, quasi-judicial in nature, whereby a dispute is submitted to an impartial and neutral third party who considers the facts and merits of a case and decides the matter. To be revised consistent with 5 U.S.C. 588, et seq.
Conciliation--procedures intended to help establish trust and openness between the parties to a dispute.
Dispute--an issue which is material to a decision concerning an administrative or mission-related program of an agency and with which there is disagreement between the agency and a person or persons who would be substantially affected by the decision.
Dispute resolution communication--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 participants. A written agreement to enter into a dispute resolution proceeding, or a final written agreement or arbitration award reached as a result of a dispute resolution proceeding, is not dispute resolution communication.
Dispute resolution proceeding--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.
Facilitation--involves the assistance of a third party who is impartial toward the issues under discussion and who works with all participants in a whole group session providing procedural directions on how the group can effectively move through the problem-solving steps of the meeting and arrive at the jointly agreed upon goal.
Fact-finding--involves the use of neutrals acceptable to all parties to determine disputed facts. This can be particularly useful where disagreements about the need for or the meaning of data are impeding resolution of a dispute, or where the disputed facts are highly technical and would be better resolved by experts. Fact-finding usually involves an informal presentation of its case by each party. The neutral(s) then provides an advisory opinion on the disputed facts, which can be used by the parties as a basis for further negotiation.
Litigation--a dispute brought in a court of law to enforce a statute, right, or legally created cause of action that will be decided based upon legal principles or evidence presented.
Mediation--involves the intervention into a dispute of an impartial and neutral third party, who has no decisionmaking authority but who will procedurally assist the parties to reach voluntarily an acceptable settlement of issues in dispute.
Minitrial--a structured settlement process in which the disputants agree on a procedure for presenting their cases in highly abbreviated versions (usually no more than a few hours or a few days) to senior officials for each side with authority to settle the dispute. This process allows those in senior positions to see firsthand the relative strengths and weaknesses of their cases and can serve as a basis for more fruitful negotiations. Often, a neutral presides over the hearing, and may, subsequently, mediate the dispute or help parties evaluate their cases.
Negotiating rulemaking--rulemaking accomplished through the use of a negotiated rulemaking committee.
Negotiated rulemaking committee--an advisory committee established by an agency in accordance with the Negotiated Rulemaking Act and the Federal Advisory Committee Act to consider and discuss issues for the purpose of reaching a consensus in the development of a proposed rule.
Negotiation--involves a bargaining relationship between two or more parties who have either perceived or actual conflicts of interest. The participants join voluntarily in a temporary relationship to educate each other about their needs and interest and exchange specific resources or promises that will resolve one or more issues. Almost all of the ADR procedures, in which the parties maintain control over the outcome of the conflict, are variations upon or elaborations of the negotiation process.
Neutral--an individual, who with respect to an issue in controversy, functions specifically to aid the parties in resolving the controversy. The individual 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 dispute, unless such interest is fully disclosed in writing to all parties and all parties agree that the neutral may serve.
Ombudsman--a person designated to address selected categories of disputes by investigation the circumstances that gave rise to the matter; and based upon the investigative findings, recommending corrective action, as appropriate.
Roster--a list of persons qualified to provide services as neutrals that is maintained by the agency.
All bureaus and offices within the Department have been involved in implementing ADR processes. Some of the more prominent examples of ADR initiatives that reflect the Department's commitment to ADR include:
In 1990, the Department disseminated to each of the Department's bureaus and offices an ADR survey designed to identify program areas that could be amendable to ADR techniques. Among the questions asked were: (1) The categories of disputes in which the organization is typically involved; (2) the number of cases during the prior 2 fiscal years that were docketed, settled, and litigated, and the approximate cost involved; and (3) the organization's experience to date in utilizing ADR techniques.
The Department initially conducted an orientation program on ADR. Included in the orientation program was Senator Charles Grassley, one of the sponsors of the ADR Act, together with representatives of the Administrative Conference of the United States (ACUS) and the Federal Mediation and Conciliation Service (FMCS).
The Department then conducted a one day training program on ADR. The training focused on the various methods of ADR and included representatives from the U.S. Army Corps of Engineers, the Environmental Protection Agency, the Department of Health and Human Services, and the Department of Transportation, each of whom shared their experiences in developing successful ADR programs.
The Department's Office for Equal Opportunity (OEO) provided training in basic and advanced mediation skills for OEO and personnel program officials and Equal Employment Opportunity (EEO) counselors. OEO also issued a directive to bureaus and offices providing guidance on the development and implementation of ADR pilot programs consistent with 29 CFR Part 1614. Under this directive each bureau and office is to submit an ADR pilot program plan delineating specific actions to be taken to incorporate ADR techniques into the EEO complaints process.
The Department encourages the use of ADR in the resolution of discrimination complaints and has designated a Departmental EEO/ADR Coordinator and directed each bureau to designate a Bureau EEO/ADR Coordinator.
The Department designated the Bureau of Reclamation (Reclamation) as a pilot bureau in fiscal year 1993 for the purpose of testing the effectiveness of mediation in the resolution of EEO complaints and administrative grievances. The bureau has relied exclusively on contract neutrals to serve as mediators for all disputes referred for ADR. Mediation has also been utilized by Reclamation in other program areas, including resource management and contract administration.
The Department's Office of Hearings and Appeals has implemented ADR as an alternative to administrative litigation. The Board of Indian Appeals and the administrative law judges vested with authority for adjudicating Indian probate cases have encouraged the use of settlement agreements to resolve these matters. Under 43 CFR 4.207, administrative law judges have been authorized to affect compromise settlements in probate actions where the parties concerned agree to compromise and where the judge establishes that all necessary conditions have been met. The Board of Contract Appeals has been effectively implementing ADR processes over the last 3 years in its cases. At the time a case is docketed, the Board issues an order notifying the parties to the dispute of the availability and benefits of ADR. Through actively promoting ADR as a viable alternative, the Board has settled a majority of its cases without the need to conduct a hearing.
The Bureau of Land Management (BLM) has recognized the benefits of ADR techniques, and, in partnership with the Bowie State University's Center for Alternative Dispute Resolution, has provided basic Conflict Management ADR training to Personnelists and EEO practitioners, as well as to key management officials.
The Minerals Management Service (MMS) has a rich history of ADR. MMS examples include (1) a process targeted at settling outstanding and contentious mineral royalty claims which has reduced appeals and litigation and increased royalty collections, and (2) more than a decade of conflict resolution training for offshore minerals management personnel and establishment and conduct of a joint review panel for constituent review of environmental documents.
During the interim period that is just ending, the U.S. Fish and Wildlife Service has recorded particular success in implementing its ADR plan. Out of 41 instances of utilizing ADR, 33 (80 percent) have been successful. The unsuccessful instances resulted in further processing under EEO procedures. Mediation was conducted [Page 40429] by EEO counselors in all instances except for three which were processed through the Federal Mediation and Conciliation Service. The cost and time savings were significant with the avoidance of expenditures in connection with EEO investigations, hearings, transcripts, and staff time.
The program Department-wide thus far has focused on EEO and related personnel matters. Only MMS, among the bureaus, has concentrated on resolving conflicts with outside groups. The interim policy signed by the Secretary in June 1994, upon which the final policy is based, made clear that the program is to be broader based. The IDRC will continue to encourage other bureaus to adopt the MMS model for resolving conflicts with constituents, customers and outside groups.