Proposed 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 guidance; Request for comments.

SUMMARY:

The Federal Motor Carrier Safety Administration (FMCSA), a modal administration within the U.S. Department of Transportation (DOT), proposes to use the alternative dispute resolution (ADR) technique of binding arbitration in civil penalty forfeiture proceedings in which the only issues remaining to be resolved are: (1) The amount of the civil penalty owed, and (2) the length of time in which to pay it. FMCSA will not agree to arbitrate maximum penalty cases issued pursuant to section 222 of the Motor Carrier Safety Improvement Act of 1999, or any cases that require interpretation of the regulations or analysis of important policy issues. FMCSA intends to implement binding arbitration immediately upon publication of this notice. Binding arbitration will be implemented to provide more efficient and effective resolution of the large volume of adjudication cases that are now before FMCSA's Chief Safety Officer. In accordance with section 575(c) of the Administrative Dispute Resolution Act of 1996, FMCSA has submitted this Guidance to the Attorney General for consultation. The Attorney General concurs in the issuance of this Guidance. Changes to the arbitration program may be made, however, in accordance with any comments or information received by FMCSA concerning implementation of binding arbitration.

DATES:

Comments must be received on or before May 30, 2003.

ADDRESSES:

You may mail, fax, hand deliver or electronically submit written comments on the Guidance to the U.S. Department of Transportation, Dockets Management Facility, Room PL-401, 400 7th Street, SW., Washington, DC 20590-0001, FAX (202) 493-2251, on-line at http://dms.dot.gov/submit. Please include the docket number that appears in the heading of this document in your submission. Comments may be examined at the Dockets Management Facility from 9 a.m. to 5 p.m., Eastern Standard Time, Monday through Friday, except Federal holidays. You may also view all comments or download an electronic copy of this document from the DOT Docket Management System (DMS) at http://dms.dot.gov/search.htm and by typing the last five digits of the docket number appearing at the heading of this document. The DMS is available 24 hours each day, 365 days each year. You can obtain electronic submission and retrieval help and guidelines under the “help” section of the web site. If you want us to notify you that we received your comments, please include a self-addressed, stamped envelope or postcard, or print the acknowledgement page that appears after submitting comments on-line.

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 the Department of Transportation's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT:

Steven B. Farbman, (202) 385-2351, Federal Motor Carrier Safety Administration, Adjudications Counsel, 400 7th Street, SW., Washington, DC 20590. Office hours are from 9 a.m. to 5:30 p.m., e.t., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Comments Invited

Interested persons are invited to participate in finalizing this Guidance by submitting such written comments, views, or arguments as they may desire. All comments received will be included in the docket and available for public inspection before and after the comment closing date. All comments received on or before the closing date will be considered by FMCSA. Late-filed comments will be considered to the extent practicable. The Guidance referenced in this notice may be changed in light of the comments received.

Availability of the Guidance

This notice and request for comments merely identifies the Guidance. A complete copy of the Guidance has been placed in the public docket. The docket may be accessed at the U.S. Department of Transportation, Dockets Management Facility, Room PL-401, 400 7th Street, SW., Washington, DC 20590-0001, or on-line at http://dms.dot.gov. The docket number is provided at the beginning of this Notice.

Background

In the Administrative Dispute Resolution Act of 1996 (ADRA) (Pub. L. 104-320, 110 Stat.3870 (October 19, 1996) (now codified at 5 U.S.C. 571-583)), Congress authorizes Federal agencies to utilize binding arbitration to resolve administrative disputes, provided that conditions specified in the ADRA are satisfied. Among other things, the ADRA requires interested agencies to develop and issue guidance on the appropriate use of arbitration. FMCSA has posted its Guidance at http://www.fmcsa.dot.gov as well as in the docket for this Notice at http://dms.dot.gov and is implementing binding arbitration in 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 Chief Safety Officer will determine if a case is appropriate for arbitration and notify the parties in writing that the case will be referred to arbitration with the consent of both parties. A detailed explanation of the notification and consent process is provided in the Guidance. Cases requiring interpretation of the regulations or analysis of important policy issues will not be selected for binding arbitration. FMCSA will immediately modify or terminate the use of binding arbitration if there is reason to believe that continuing it is inconsistent with the goals and objectives of the safety regulations.

In accordance with section 575 of the ADRA, FMCSA's Guidance for use of binding arbitration to resolve civil penalty disputes was developed in consultation with the Attorney General. FMCSA has been informed by the Department of Justice (DOJ) that the Attorney General concurs in the Guidance and implementation of binding arbitration.

The Guidance satisfies the requirements regarding binding arbitration specified by section 575 of the ADRA of 1996, and addresses use of binding arbitration in a manner consistent with FMCSA's dispute resolution process and its procedural rules of practice at 49 CFR part 386.