Agency Information Collection Activities: Proposed Collection; Comment Request: Application for the National Roster of Environmental Dispute Resolution and Consensus Building Professionals

Potentially Affected Persons

You are potentially affected by this action if you are a dispute resolution or consensus building professional in the environmental or natural resources field who wishes to be listed on the National Roster of Environmental Dispute Resolution and Consensus Building Professionals. This Roster will be one of several sources of information which federal environmental and natural resource agencies will use to identify appropriately experienced conflict resolution professionals for use in resolving environmental and natural resource disputes or issues in controversy under the Administrative Dispute Resolution Act of 1996 and the Negotiated Rulemaking Act of 1996. Title: Application for the National Roster of Environmental Dispute Resolution and Consensus Building Professionals--EPA ICR #1888.01.

Background

A. Questions to Consider in Making Comments

The U.S. Institute for Environmental Conflict Resolution and EPA request your comments to any of the following questions related to establishing a National Roster of Environmental Dispute Resolution and Consensus Building Professionals: (1) Is the proposed roster (``collection of information'') necessary for the proper performance of the functions of the agencies, including whether the information will have practical utility?; (2) Is the agencies' estimate of the time spent completing the application form (``burden of the proposed

collection of information'') accurate, including the validity of the methodology and assumptions used?; (3) Can you suggest ways to enhance the quality, utility, and clarity of the information to be collected?; and (4) Can you suggest ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses?

B. What Are the Statutory Bases for Use of Dispute Resolution and Consensus Building Professionals in Agency Disputes?

The Administrative Dispute Resolution Act (ADRA), Public Law 101- 552, authorizes and encourages agencies to use mediation and other consensual methods of dispute resolution as alternatives to traditional dispute resolution processes. The Negotiated Rulemaking Act (NRA), Public Law 101-648, authorizes and encourages agencies to use consensus building methods as a means of developing regulations. Both Acts anticipate the use of a ``neutral,'' an individual who, with respect to an issue in controversy, functions specifically to help the parties in resolving the controversy. Neutrals may be facilitators, mediators, conciliators, arbitrators or early neutral evaluators. The 1990 ADRA called for the Administrative Conference of the U.S. to establish standards for neutrals and to maintain a roster of individuals who met the standards. The Administrative Conference of the U.S. was abolished in 1995 and its roster subsequently lapsed. The U.S. Institute for Environmental Conflict Resolution was established by Congress in 1997 (Public Law 105-156) to assist in the resolution of environmental conflicts in which the federal government is a stakeholder. The Institute is housed at the Morris K. Udall Foundation, a federal commission located in Tucson, Arizona. The Institute is authorized to direct its resources to resolve costly environmental conflicts outside the courtroom and to foster collaborative agreements among affected parties concerning the implementation of federal environmental, public lands and natural resources policy. Federal agencies are authorized by the new law to employ the Institute to assist in alternative conflict resolution in matters involving environmental, natural resources and land-related disputes. The Institute will operate primarily as a facilitator and broker for public and private stakeholders. The Institute's small professional staff will accomplish most of its work through partnering and subcontracting with existing qualified professionals with longstanding experience in environmental conflict resolution and consensus building. The legislation requires the Institute, to the maximum extent possible, to use service providers in the geographic area of the conflict.

C. Why Is a New Roster Needed?

Identification of an appropriate, experienced neutral is an essential step in initiating and conducting a credible dispute resolution or consensus building process. There are a number of ways that parties to a conflict identify neutrals--past experience with a neutral, recommendations from colleagues, professional directories, yellow pages of phone books, responses to Requests for Proposal, etc. None of these processes is particularly rigorous or efficient in terms of timing, particularly when the parties are seeking persons with specialized expertise. The U.S. Institute for Environmental Conflict Resolution is charged with assisting in the resolution of environmental, public lands and natural resources conflicts that involve federal agencies as stakeholders. Consistent with its mandate, the Institute must be able to identify appropriate experienced dispute resolution and consensus building professionals in an expedited manner. This national roster will serve as a primary source for the Institute to access qualified professionals who have specific background and expertise sought by stakeholders to environmental conflicts. EPA has long had a nationwide contract listing numerous dispute resolution consultants and firms. This contract provides excellent service for national level issues, but it can be cumbersome and time consuming in seeking out neutrals for local site or facility-based disputes or consensus building efforts. In 1997, EPA conducted a study to examine whether a specialized roster was necessary and whether any existing rosters (public or private) could fulfill the need. The study concluded that EPA (especially regional offices of EPA) needed a specialized roster or database which would list neutrals experienced in helping parties in environmental cases, and that there was no existing database that would meet EPA's needs. The study identified a number of federal, state and private rosters of neutrals. The other existing Federal roster, the FDIC Roster of Neutrals (OMB #3064-0107), does not contain significant numbers of neutrals experienced in environmental or natural resource matters. A number of states have rosters of environmental neutrals, but the entry qualifications vary significantly and even taken together, they do not provide adequate nationwide coverage. The Roster developed as a result of this ICR will provide the U.S. Institute for Environmental Conflict Resolution, EPA and other federal agencies with the ability to identify an additional number, range and variety of dispute resolution and consensus building service providers throughout the U.S. The ICR will provide two kinds of information: (1) Information to determine if the individual applying has met the basic entry qualifications; (2) information to be used in conducting database searches to match cases or issues with potential neutrals experienced in particular kinds of disputes or issues.

D. How Were the Roster Entry Qualifications and Information Developed?

EPA has entered into an Interagency Agreement with the U.S. Institute for Environmental Conflict Resolution to develop a roster specifically designed to identify dispute resolution and consensus building professionals (neutrals) with environmental and/or natural resource public policy experience. The U.S. Institute convened a workgroup to give individual opinions and advice to the Institute and EPA regarding whether or not the roster should have entry qualifications and how the roster should be constructed and managed. The workgroup consists of EPA dispute resolution specialists and contracting officers, state dispute resolution officials, private dispute resolution practitioners and academics. As a result of the individual advice of the workgroup and others who have responded to requests for opinions, the U.S. Institute and the EPA are proposing the entry criteria and information collection items included in this Information Collection Request. In addition to the public comment being solicited in this notice, the U.S. Institute and EPA are conducting extensive outreach to professional associations of dispute resolution and consensus building professionals, state offices of dispute resolution, individual dispute resolution practitioners, professional associations of attorneys, and environmental and citizens groups though presentations at professional meetings and conventions and through individual contacts with people and

organizations who have participated in previous dispute resolution efforts.

E. What Are the Roster Entry Qualifications?

As a result of consultations with the workgroup, the U.S. Institute for Environmental Conflict Resolution and EPA are proposing the following basic entry criteria for an individual seeking to be listed on the Roster database.

Draft Roster Entry Criteria

In order to be listed on the National Roster of Environmental Dispute Resolution and Consensus Building Professionals, a person must: (1) Have served as the principal or co-principal professional on two to five environmental cases. Each case must have involved at least 40 direct case hours of contact and in the aggregate must total at least 200 case hours; and (2) accumulate a total of at least 50 points across three scoring categories, including process experience, interactive training experience, and substantive background. The scoring categories and scoring system are presented in the chart below:

------------------------------------------------------------------------ Scoring categories and Maximum points subcategories (50 points required Range of points for for the for entry) each subcategory category ------------------------------------------------------------------------ 1. Process Experience............ ..................... 90 a. Number of environmental or 0-50................. .............. public policy cases in the last 10 years as principal or co-principal professional--5 points per case up to 10 cases. b. Additional credit if any 0-25................. .............. of those cases were complex environmental or public policy cases--5 additional points per case up to 5 cases. c. Number of environmental or 0-15................. .............. public policy cases in the last 10 years as apprentice or junior professional--3 points per case up to 5 cases. 2. Interactive Process Training.. ..................... 20 a. Training experience--At 0 or 10.............. .............. least 24 hours of basic interactive training and 16 hours of advanced interactive training in dispute resolution and consensus building. b. Trainer--Directed at least 0 or 10.............. .............. 40 hours of basic interactive training in dispute resolution and consensus building. c. Senior Trainer/teacher 0 or 20.............. .............. experience--Directed interactive training in dispute resolution and consensus building totaling 150 contact hours. 3. Substantive Experience........ ..................... 25 a. Graduate degrees or 0 or 10.............. .............. graduate program certificates in substantively relevant fields, such as law, environmental sciences or policy, engineering, public administration or management, communication theory, planning, conflict resolution--10 points for up to one degree/certificate. b. Years of employment or 0-15................. .............. volunteer experience in the above fields--1 point for every year up to 15 years. ------------------------------------------------------------------------

Definitions 1. Case--A case is an actual or potential dispute or lack of agreement on one or more issues. A case may also be described as a process of building agreement, recommendations or advice on actual or potential issues in controversy as well as facilitating collaborative processes among multiple parties on actual or potential issues in controversy. Systems design and evaluation work would also be included. For purposes of entry, a case must have engaged the applicant for more than 40 case hours. a. Environmental Case--Cases or processes involving environmental pollution prevention or cleanup, land use, natural resource use or distribution, environmental permitting, facility siting disputes, environmental justice, negotiated rulemaking, enforcement or compliance. b. Public Policy Case--Cases or processes involving the setting of governmental policy at the national, regional, state or local level, such as environmental or natural resource policy, health policy, or education policy. c. Complex Environmental or Public Policy Case--An environmental or public policy case where there are multiple issues at stake involving at least four parties representing distinct interests at the table, at least one of whom is a governmental entity. 2. Case Hours--Actual contact time with the parties as individuals or a group, plus time spent in dispute or conflict assessment, dispute resolution process design, conduct of all phases of the process, or evaluating or reporting on the process. This does not include hours spent prior to professional engagement in the project. 3. Environmental Dispute Resolution and Consensus Building Professional--Any third party neutral engaged to help all parties in the prevention or resolution of disputes or controversy. In order to gain entry to this roster, the environmental dispute resolution and consensus building professional must have expertise in one or more of the following processes: conciliation, facilitation, mediation, neutral evaluation or assessment, fact finding, mini-trials, arbitration, dispute systems design. 4. Principal or Co-principal Professional--An environmental dispute resolution and consensus building professional who has been engaged to serve as or share the lead in conduct of a case. If serving as a co- principal professional, one must be acting as a co-lead with equal role in the conduct of the case. 5. Apprentice or Junior Professional--An assistant to the principal or co-principal professionals in the conduct of a case. 6. Interactive Process Training--Training in alternative dispute resolution processes and techniques, such as mediation, facilitation, and conflict management, which is interactive in nature incorporating a substantial number of role plays, simulations, and interactive group demonstrations.

F. What Kinds of Additional Information Are Sought for Roster Database Searches?

As a result of the 1997 EPA study and the individual recommendations from the Roster Workgroup, there are data elements in the ICR that we will use for conducting database searches on behalf of parties to an issue or dispute. Such elements include: geographic location of previous cases, languages spoken, minority group identification, experience with certain types of common environmental disputes, special skills or background. The U.S. Institute and EPA have developed a

draft application form to obtain information both to make decisions on whether an applicant qualifies for the roster and to record other relevant information.

G. Draft Application Form

Please note that the format of this form may change when the U.S. Institute and EPA select the database software for the Roster. We will also be making every effort to allow for methods to obtain and possibly submit the application electronically.

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H. Will This Roster Be the Only Source of Conflict Resolution and Consensus Building Professionals for Environmental Disputes?

No. This Roster will be one of several sources of information with federal environmental and natural resource agencies will use to identify appropriately experienced dispute resolution and consensus building professionals for use in resolving environmental and natural resource disputes or issues in controversy under the Administrative Dispute Resolution Act of 1996 and the Negotiated Rulemaking Act of 1996. However, an individual who wishes to be considered as a neutral in environmental or natural resources public policy matters is not required to be listed on this roster. Federal government personnel and parties to environmental or natural resources issues will not be limited to this Roster in identifying and contracting for the services of neutrals. We hope that this Roster will expedite the identification of individuals who are appropriate to act as neutrals in a dispute and that the information in the Roster will shorten the time needed to complete contract documents. The U.S. Institute will review all applications submitted against the entry criteria. Those who are qualified will be listed on the database; those who do not qualify may reapply as their professional experience develops. Professionals who are not included in this database are in no way barred from work on disputes involving federal agencies and the U.S. Institute will explicitly inform parties of other known rosters they may wish to consult when selecting a neutral.

I. Does Being on This Roster Guarantee Conflict Resolution Work for the Government?

No. Being listed on the database does not guarantee that you will be offered work as a neutral in U.S. government cases. The decision as to whom to retain as a neutral lies with the parties to an issue or dispute. Being listed on this database may increase the chances of parties finding out that you offer conflict resolution or consensus building services.

J. Burden Statement and Estimate

Burden Statement: This ICR compiles data available from the resumes of most conflict resolution and consensus building professionals into a format that is standardized for database searches and retrievals. A professional will need to complete the entire form only once. Professionals will be allowed to update their information on a voluntary basis periodically so that the database reflects their most current experience, and may be required to update their experience every five years. The database system is being designed to allow for some electronic information submittal. The burden includes time spent to access the professional's most recent detailed resume and to insert that information into the ICR form. Estimated Number of Respondents (first year): 400. Estimated Time per Response: 90 minutes. Estimated Total First Year Burden: 600 hours. Estimated Number of New Respondents (per year for succeeding years): 20. Estimate Time per Response: 90 minutes. Estimated Number of Updates (per year for succeeding years): 50. Estimated Time per Update: 15 minutes. Estimated Subsequent Year Annual Burden: 42.5 hours. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information and transmit information.

Dated: October 28, 1998. Paul Lapsley, Director, Regulation Management Division, Office of Regulation Management and Information, Office of Policy, U.S. Environmental Protection Agency.

Kirk Emerson, Director, U.S. Institute for Environmental Conflict Resolution, Morris K. Udall Foundation. [FR Doc. 98-31243 Filed 11-20-98; 8:45 am] BILLING CODE 6560-50-P