Notice of Proposed Revision to Guidance for the Use of Binding Arbitration Under the Administrative Dispute Resolution Act of 1996

Anne S. Ferro
Federal Motor Carrier Safety Administration
Federal Register
March 21, 2011

[Federal Register: March 21, 2011 (Volume 76, Number 54)]
[Notices]               
[Page 15359-15360]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21mr11-107]                         


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

 [Docket No. FMCSA-2003-14794]

 
Notice of Proposed Revision to Guidance for the Use of Binding 
Arbitration Under the Administrative Dispute Resolution Act of 1996

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of Proposed Revision to Guidance.

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SUMMARY: On March 4, 2004, the Federal Motor Carrier Safety 
Administration (FMCSA) published its Guidance for the use of binding 
arbitration in Agency civil penalty forfeiture proceedings in which the 
only issues remaining to be resolved are the amount of the civil 
penalty owed and the length of time in which to pay it. The Guidance 
provides that FMCSA use a form of arbitration known as ``Night 
Baseball,'' under which each party gives to the Arbitrator its proposal 
for the civil penalty in a sealed envelope. After the Arbitrator makes 
a written determination as to what he or she believes the civil penalty 
should be, the envelopes are opened. The Arbitrator then selects the 
proposed civil penalty that is closer to his or her determination. 
FMCSA is proposing to revise the Guidance to eliminate the ``Night 
Baseball'' format, and to replace it with a format in which the 
Arbitrator determines the final civil penalty and the amount of time in 
which to pay it.

DATES: You may submit comments in response to this Notice. Send your 
comments on or before April 20, 2011.

ADDRESSES: You may submit comments identified by docket number FMCSA-
2003-14794 using any one of the following methods:
    Federal eRulemaking Portal: http://www.regulations.gov.
     Fax: 202-493-2251.
     Mail: Docket Management Facility (M-30), U.S. Department 
of Transportation, West Building Ground Floor, Room W12-140, 1200 New 
Jersey Avenue, SE., Washington, DC 20590-0001.
     Hand delivery: Same as mail address above, between 9 a.m. 
and 5 p.m., e.t., Monday through Friday, except Federal holidays. The 
telephone number is 202-366-9329.
    To avoid duplication, please use only one of these four methods. 
See the ``Public Participation and Request for Comments'' portion of 
the SUPPLEMENTARY INFORMATION section below for instructions on 
submitting comments.

FOR FURTHER INFORMATION CONTACT: Steven B. Farbman, Adjudications 
Counsel, Federal Motor Carrier Safety Administration, 1200 New Jersey 
Avenue, SE., Washington, DC 20590, (202) 385-2351. Office hours are 
from 8:30 a.m. until 5 p.m., e.t., Monday through Friday, except 
Federal holidays.

SUPPLEMENTARY INFORMATION:

I. Public Participation and Request for Comments

    FMCSA encourages you to participate in this Notice of Proposed 
Revision to Guidance by submitting comments and related materials. All 
comments received will be posted without change to http://
www.regulations.gov and will include any personal information you 
provide.

A. Submitting Comments

    If you submit a comment, please include the docket number for this 
proposal (FMCSA-2003-14794) and provide a reason for each suggestion or 
recommendation. You may submit your comments and material online or by 
fax, mail, or hand delivery, but please use only one of these means. 
FMCSA recommends that you include your name and a mailing address, an 
e-mail address, or a phone number in the body of your document so that 
FMCSA can contact you if there are questions regarding your submission.
    To submit your comment online, go to http://www.regulations.gov and 
click on the ``submit a comment'' box, which will then become 
highlighted in blue. In the ``Document Type'' drop down menu, select 
``Notices,'' insert ``FMCSA-2003-14794'' in the ``Keyword'' box, and 
click ``Search.'' When the new screen appears, click on ``Submit a 
Comment'' in the ``Actions'' column. If you submit your comments by 
mail or hand delivery, submit them in an unbound format, no larger than 
8\1/2\ by 11 inches, suitable for copying and electronic filing. If you 
submit comments by mail and would like to know that they reached the 
facility, please enclose a stamped, self-addressed postcard or 
envelope.
    We will consider all comments and material received during the 
comment period and may alter our proposed course of action based on the 
comments.

B. Viewing Comments and Documents

    To view comments, as well as any documents mentioned in this 
preamble, go to http://www.regulations.gov and click on the ``read 
comments'' box in the upper right hand side of the screen. Then, in the 
``Keyword'' box insert ``FMCSA-2003-14794'' and click ``Search.'' Next, 
click the ``Open Docket Folder'' in the ``Actions'' column. Finally, in 
the ``Title'' column, click on the document you would like to review. 
If you do not have access to the Internet, you may view the docket 
online by visiting the Docket Management Facility in Room W12-140 on 
the ground floor of the Department of Transportation West Building, 
1200 New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5 
p.m., e.t., Monday through Friday, except Federal holidays.

C. Privacy Act

    Anyone is able to search the electronic form of all comments 
received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
Privacy Act Statement for the Federal Docket Management System 
published in the Federal Register on January 17, 2008 (73 FR 3316).

II. Background

    On March 4, 2004, FMCSA published in the Federal Register (69 FR 
10288) its Guidance for the use of binding arbitration as an 
alternative dispute resolution technique in Agency civil penalty 
forfeiture proceedings in which the only issues remaining to be 
resolved are the amount of the civil penalty owed and the length of 
time in which to pay it. Under the Guidance's ``Night Baseball'' 
format, each party presents to the Arbitrator evidence supporting the 
penalty it considers appropriate for the case as a whole without 
stating what that amount is. Following the hearing, each party provides 
the Arbitrator and the opposing party with a sealed envelope containing 
the amount of the total proposed civil penalty for the case and, if 
necessary, a proposed payment plan. Before opening the envelopes, the 
Arbitrator determines in writing the total civil penalty and, if 
necessary, a payment plan. The Arbitrator then opens the envelopes and 
selects the proposed civil penalty and payment plan that is closer to 
his or her determination.
    FMCSA is proposing to eliminate the ``Night Baseball'' format from 
the Guidance. Several years of experience with this format have 
revealed that final civil penalties are rarely identical to the 
Arbitrator's determination, and occasionally not close at all. For 
example, in one case, the final civil penalty was $1,001 even though 
the Arbitrator determined that the civil penalty should be $2,700. That 
is because the $1,001 penalty proposed by the respondent was closer to 
the Arbitrator's determination than the claimant's proposal of $4,500. 
In

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another case, the claimant proposed a $34,090 civil penalty while the 
respondent proposed a $6,630 civil penalty. Because the Arbitrator's 
decision was $28,000, the higher proposal was chosen. The format has, 
in fact, incentivized strategy over substance and merit--the very 
result it was designed to avoid. In addition, the ``Night Baseball'' 
format requires parties to persuade the Arbitrator to accept the wisdom 
of their positions without being able to reveal the actual civil 
penalty they propose. This is difficult to do, and the process prevents 
the Arbitrator from receiving all of the information that might be 
helpful in reaching a determination.
    FMCSA believes that the fairest civil penalty will be the amount 
determined by the Arbitrator following a full hearing. This will allow 
the parties to try to persuade the Arbitrator why a certain proposed 
civil penalty will be just. The Arbitrator will then decide, on the 
merits, the civil penalty and, if necessary, the amount of time in 
which to pay it. The remainder of the 2004 Guidance would continue 
unchanged.

    Issued on: March 14, 2011.
Anne S. Ferro,
Administrator.
[FR Doc. 2011-6468 Filed 3-18-11; 8:45 am]
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