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Spring 2002

DOT Issues ADR Policy Statement

FMCSA Raises Safety Bar For New Carriers

The U.S. Department of Transportation has issued a Statement of Policy on Alternative Dispute Resolution (ADR) to further the department's commitment to expand the use of consensual resolution of disputes in order to avoid costly litigation and lengthy administrative processes.  67 Fed. Reg. 40,367 (June 12, 2002).
The Statement of Policy commits the department to considering ADR in a variety of areas such as resolution of workplace issues, formal and informal adjudication, rulemaking, enforcement, issuance and revocation of licenses and permits, contract and grant administration, and litigation brought by or against the department. The statement encourages persons who interact with the department to identify opportunities for collaborative, consensual approaches to dispute resolution or rulemaking.
A decision to use ADR may be made before or after a dispute arises.  Several factors will be considered in making that decision.  Some factors may favor the use of ADR while others may weigh against it.  Although not intended as an exhaustive list of factors, the department has determined that ADR may be helpful in resolving a particular dispute where one or more of the following factors are present:

1. Identifiable Parties.  There is an identifiable group of constituents with interests (the parties) so that all reasonably foreseeable interests can be represented.
   
2. Good Faith.  The parties are willing to participate in good faith.
   
3. Communication.  The parties are interested in seeking agreement, but poor communication or personality conflicts between the parties adversely affect negotiations.
   
4. Continuing Relationship.  A continuing relationship between the parties is important and desirable.
   
5. Issues.  There are issues that are agreed to be ripe for a negotiated solution.
   

1. Unrealistic View of the Issues.  The parties' demands or views of the issues are unrealistic. A discussion of the situation with a neutral may increase the parties' understanding and result in more realistic alternatives and options.
   
2. Sufficient Areas of Compromise.  There are sufficient areas of compromise to make ADR worthwhile.
   
3. Expectation of Agreement.  The parties expect to agree eventually, most likely before reaching the courtroom or engaging in other adversarial processes.
   
4. Timing.  There is sufficient time to negotiate and ADR will not unreasonably delay the outcome of the matter in dispute.  There is a likelihood that the parties will be able to reach agreement within a fixed time.  There are no statutory or judicial deadlines that are adversely affected by the process. ADR may result in an earlier resolution of the dispute.
   
5. Resources.  The parties have adequate resources (budget and people) and are willing to commit them to the process.
   

The Federal Motor Carrier Safety Administration (FMCSA) has established new, stricter minimum requirements, in an interim final rule, to improve the safety performance of new U.S. and Canadian entrant motor carriers by ensuring they are knowledgeable about applicable federal motor carrier safety standards.  67 Fed. Reg. 31,978 (May 13, 2002).  The interim final rule responds to requirements of the Motor Carrier Safety Improvement Act of 1999.
Applicants will be required to demonstrate knowledge of safety regulations through an application process and will undergo an on-site safety audit within the first 18 months of operations before receiving permanent operating authority.  Carriers failing to demonstrate basic safety management controls during the 18-month period will be denied permanent authority.
New entrants must certify that they will comply with applicable requirements covering driver qualifications, hours of service, controlled substance and alcohol testing, vehicle condition, accident monitoring, and hazardous materials transportation.
The FMCSA intends to improve the safety performance of new entrants by providing educational and technical assistance to new carriers.  The safety audit and 18-month monitoring period provide new carriers an opportunity to understand their safety obligations under the Federal Motor Carrier Safety Regulations and applicable Hazardous Materials Regulations and to determine operational deficiencies.  The safety audit will include a review of a new entrant's safety data, a review of requested motor-carrier documents, and an interview with the motor carrier.
The effective date of the interim final rule is Jan. 1, 2003.