FMCSA wants to strike ‘Night Baseball’ from civil penalty proceedings

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Updated Mar 21, 2011

The Federal Motor Carrier Safety Administration on Friday, March 18, announced its proposal to revise guidance for the use of binding arbitration in its 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 original guidance published March 4, 2004, 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, and the arbitrator then selects the proposed civil penalty that is closer to his or her determination.

FMCSA now 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. To comment, go to; the docket number is FMCSA-2003-14794.