Federal Register / Vol. 76, No. 54 / Monday, March 21, 2011 / Notices 15359 

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. 

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 81⁄2 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, selfaddressed 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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15360 Federal Register / Vol. 76, No. 54 / Monday, March 21, 2011 / Notices 

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] 

BILLING CODE P 

DEPARTMENT OF TRANSPORTATION 

Federal Motor Carrier Safety 

Administration 

[Docket No. FMCSA–1998–4334; FMCSA– 

2000–7006; FMCSA–2000–7918; FMCSA– 

2000–8398; FMCSA–2002–13411; FMCSA– 

2005–20027] 

Qualification of Drivers; Exemption 

Applications; Vision 

AGENCY: Federal Motor Carrier Safety 

Administration (FMCSA), DOT. 

ACTION: Notice of renewal of 

exemptions; request for comments. 

SUMMARY: FMCSA announces its 

decision to renew the exemptions from 

the vision requirement in the Federal 

Motor Carrier Safety Regulations for 8 

individuals. FMCSA has statutory 

authority to exempt individuals from 

the vision requirement if the 

exemptions granted will not 

compromise safety. The Agency has 

concluded that granting these 

exemption renewals will provide a level 

of safety that is equivalent to or greater 

than the level of safety maintained 

without the exemptions for these 

commercial motor vehicle (CMV) 

drivers. 

DATES: This decision is effective April 5, 

2011. Comments must be received on or 

before April 20, 2011. 

ADDRESSES: You may submit comments 

bearing the Federal Docket Management 

System (FDMS) numbers: FMCSA– 

1998–4334; FMCSA–2000–7006; 

FMCSA–2000–7918; FMCSA–2000– 

8398; FMCSA–2002–13411; FMCSA– 

2005–2002, using any of the following 

methods: 

• Federal eRulemaking Portal: Go to 

http://www.regulations.gov. Follow the 

on-line instructions for submitting 

comments. 

• Mail: Docket Management Facility; 

U.S. Department of Transportation, 1200 

New Jersey Avenue, SE., West Building 

Ground Floor, Room W12–140, 

Washington, DC 20590–0001. 

• Hand Delivery or Courier: West 

Building Ground Floor, Room W12–140, 

1200 New Jersey Avenue, SE., 

Washington, DC, between 9 a.m. and 5 

p.m., Monday through Friday, except 

Federal holidays. 

• Fax: 1–202–493–2251. 

Instructions: Each submission must 

include the Agency name and the 

docket number for this notice. Note that 

DOT posts all comments received 

without change to http:// 

www.regulations.gov, including any 

personal information included in a 

comment. Please see the Privacy Act 

heading below. 

Docket: For access to the docket to 

read background documents or 

comments, go to http:// 

www.regulations.gov at any time or 

Room W12–140 on the ground level of 

the West Building, 1200 New Jersey 

Avenue, SE., Washington, DC, between 

9 a.m. and 5 p.m., Monday through 

Friday, except Federal holidays. The 

Federal Docket Management System 

(FDMS) is available 24 hours each day, 

365 days each year. If you want 

acknowledgment that we received your 

comments, please include a selfaddressed, stamped envelope or 

postcard or print the acknowledgement 

page that appears after submitting 

comments on-line. 

Privacy Act: Anyone may search the 

electronic form of all comments 

received into any of our dockets by the 

name of the individual submitting the 

comment (or of the person signing the 

comment, if submitted on behalf of an 

association, business, labor union, etc.). 

You may review DOT’s Privacy Act 

Statement for the FDMS published in 

the Federal Register on January 17, 

2008 (73 FR 3316), or you may visit 

http://edocket.access.gpo.gov/2008/pdf/ 

E8-785.pdf. 

FOR FURTHER INFORMATION CONTACT: Dr. 

Mary D. Gunnels, Director, Medical 

Programs, (202)–366–4001, 

fmcsamedical@dot.gov, FMCSA, 

Department of Transportation, 1200 

New Jersey Avenue, SE., Room W64– 

224, Washington, DC 20590–0001. 

Office hours are from 8:30 a.m. to 5 p.m. 

Monday through Friday, except Federal 

holidays. 

SUPPLEMENTARY INFORMATION: 

Background 

Under 49 U.S.C. 31136(e) and 31315, 

FMCSA may renew an exemption from 

the vision requirements in 49 CFR 

391.41(b)(10), which applies to drivers 

of CMVs in interstate commerce, for a 

two-year period if it finds ‘‘such 

exemption would likely achieve a level 

of safety that is equivalent to, or greater 

than, the level that would be achieved 

absent such exemption.’’ The procedures 

for requesting an exemption (including 

renewals) are set out in 49 CFR part 381. 

Exemption Decision 

This notice addresses 8 individuals 

who have requested renewal of their 

exemptions in accordance with FMCSA 

procedures. FMCSA has evaluated these 

9 applications for renewal on their 

merits and decided to extend each 

exemption for a renewable two-year 

period. They are: 

Richard D. Carlson, David J. Collier, 

Robert P. Conrad, Sr., Donald P. 

Dodson, Jr., Stephanie D. Klang, Mark J. 

Koscinski, James A. Stoudt, Ralph A. 

Thompson. 

The exemptions are extended subject 

to the following conditions: (1) That 

each individual has a physical 

examination every year (a) by an 

ophthalmologist or optometrist who 

attests that the vision in the better eye 

continues to meet the standard in 49 

CFR 391.41(b)(10), and (b) by a medical 

examiner who attests that the individual 

is otherwise physically qualified under 

49 CFR 391.41; (2) that each individual 

provides a copy of the ophthalmologist’s 

or optometrist’s report to the medical 

examiner at the time of the annual 

medical examination; and (3) that each 

individual provide a copy of the annual 

medical certification to the employer for 

retention in the driver’s qualification 

file and retains a copy of the 

certification on his/her person while 

driving for presentation to a duly 

authorized Federal, State, or local 

enforcement official. Each exemption 

will be valid for two years unless 

rescinded earlier by FMCSA. The 

exemption will be rescinded if: (1) The 

person fails to comply with the terms 

and conditions of the exemption; (2) the 

exemption has resulted in a lower level 

of safety than was maintained before it 

was granted; or (3) continuation of the 

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