FMCSA eliminates ‘night baseball’ arbitration

user-gravatar Headshot

The Federal Motor Carrier Safety Administration on Friday, June 8, announced its final determination 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, provided 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 on March 18, 2011, proposed to revise the guidance to eliminate the “night baseball” format and to replace it with a format in which the arbitrator alone determines the final civil penalty and the amount of time in which to pay it. The agency asked for comments on its proposal and on Friday, June 8, said it had received none, so it has revised the guidance by eliminating the “night baseball” format.

The revised guidance is effective Monday, June 11, and will apply to all cases in which an order assigning a matter to binding arbitration is issued from that date forward. To comment, go to; the docket number is FMCSA-2003-14794.