Charter Service, 18056-18061 [06-3411]

Agencies

• Federal Transit Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 71, Number 68 (Monday, April 10, 2006)]
[Proposed Rules]
[Pages 18056-18061]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-3411]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

49 CFR Part 604

[Docket No. FTA-2005-22657]
RIN 2132-AA85


Charter Service

AGENCY: Federal Transit Administration (FTA), DOT.

ACTION: Final notice forming a negotiated rulemaking advisory 
committee.

-----------------------------------------------------------------------

SUMMARY: Pursuant to the direction contained in the Joint Explanatory 
Statement of the Committee of Conference, for section 3023(d), 
``Condition on Charter Bus Transportation Service'' of the Safe, 
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy 
for Users (SAFETEA-LU) of 2005, FTA is establishing a committee to 
develop, through negotiated rulemaking procedures, recommendations for 
improving the regulation regarding the prohibition of FTA grant 
recipients from providing charter bus service. The committee will 
consist of persons who represent the interests affected by the proposed 
rule, i.e., charter bus companies, public transportation operators, and 
other interested parties. This document lists the committee members, 
issues to be addressed by the committee, and proposed meeting dates, 
time, and location.

DATES: Effective Date: April 10, 2006.

FOR FURTHER INFORMATION CONTACT: For questions regarding accessibility, 
directions, or administrative procedures, please contact Elizabeth 
Martineau at (202) 366-1966 or Linda Lasley at (202) 366-4063.

SUPPLEMENTARY INFORMATION:

I. Statutory Authority

    Section 3023 of SAFETEA-LU amends 49 U.S.C. 5323(d) to state that 
``the Secretary shall bar a recipient or an operator from receiving 
federal transit assistance in an amount the Secretary considers 
appropriate if the Secretary finds a pattern of violations of the 
[charter bus] agreement.'' Congressional conference report language on 
Section 3023 requests that FTA ``initiate a negotiated rulemaking 
seeking public comment on the regulations implementing section 
5323(d)'' and to consider the issues listed below:
    1. Are there potential limited conditions under which public 
transit agencies can provide community-based charter services directly 
to local governments and private non-profit agencies that would not 
otherwise be served in a cost-effective manner by private operators?
    2. How can the administration and enforcement of charter bus 
provisions be better communicted to the public, including use of 
internet technology?
    3. How can the enforcement of violations of the charter bus 
regulations be improved?
    4. How can the charter complaint and administrative appeals process 
be improved?

II. Negotiated Rulemaking

    As requested by conference report language on Section 3023 of 
SAFETEA-LU, FTA will conduct the negotiated rulemaking. The Negotiated 
Rulemaking Act of 1990, Pub. L. 101-648 (5 U.S.C. 561, et seq.) (NRA) 
establishes a framework for the conduct of a negotiated rulemaking and 
encourages agencies to use negotiated rulemaking to enhance the 
rulemaking process. FTA will form an advisory committee consisting of 
representatives of the affected interests for the purpose of reaching 
consensus, if possible, on a proposed rulemaking.

A. The Concept of Negotiated Rulemaking

    Usually FTA develops a rulemaking proposal using its own staff and 
consultant resources. The concerns of affected parties are made known 
through means such as various informal contacts and advance notices of 
proposed rulemaking published in the Federal Register. After the notice 
of proposed rulemaking is published for comment, affected parties may 
submit arguments and data defining and supporting their positions with 
regard to the issues in the proposed rule. All comments from affected 
parties are directed to the Department's docket (https://dms.dot.gov) 
for the rulemaking. In general, there is limited communication among 
parties representing different interests. As Congress noted in the RA, 
such regulatory development procedures may ``discourage the affected 
parties from meeting and communicating with each other, and may cause 
parties with different interest to assume conflicting and antagonistic 
positions * * *'' (Sec. 2(2) of Pub. L. 101-648). Congress also stated 
``adversarial rulemaking deprives the affected parties and the public 
of the benefits of face-to-face negotiations and cooperation in 
developing and reaching agreement on a rule. It also deprives them of 
the benefits of shared information, knowledge, expertise, and technical 
abilities possessed by the affected parties.'' (Sec. 2(3) of Pub. L. 
101-648).
    Using negotiated rulemaking to develop the proposed rule is 
fundamentally different. Negotiated rulemaking is a process by which a 
proposed rule is developed by a committee composed of representatives 
of those interests that will be significantly affected by the rule. 
Decisions are made by some form of consensus, which generally requires 
a measure of concurrence among the interests represented.\1\ An agency 
desiring to initiate the process does so by carefully identifying all 
interests potentially affected by the rulemaking under consideration. 
To help in this identification process, the agency publishes a notice, 
such as this one, which identifies a preliminary list of interests and 
requests public comment on that list. Following receipt of the 
comments, the agency establishes an advisory committee representing 
these various interests to negotiate a consensus on the terms of a 
proposed rule. The committee is chartered under the Federal Advisory 
Committee Act (5 U.S.C. App. 2) (FACA). Representation on the committee 
may be ``direct'', that is, each member represents a specific interest, 
or may be ``indirect,'' that is, through coalitions of parties formed 
for this purpose. The establishing agency has a member of the committee 
representing the Federal Government's own set of interests. A 
facilitator or mediator can assist the negotiated rulemaking advisory 
committee by

[[Page 18057]]

facilitating the negotiation process. The role of this mediator, or 
facilitator, is to apply proven consensus building techniques to the 
advisory committee setting.
---------------------------------------------------------------------------

    \1\ The negotiated Rulemaking Act defines ``consensus'' as 
``unanimous concurrence among the interests represented on a 
negotiated rulemaking committee * * * unless such committee (A) 
agrees to define such term to mean a general but not unanimous 
concurrence; or (B) agrees upon another specified definition.'' 5 
U.S.C. 562(2).
---------------------------------------------------------------------------

    Once a regulatory negotiation advisory committee reaches consensus 
on the provisions of a proposed rule, the agency consistent with its 
legal obligations, uses this consensus as the basis of its proposed 
rule and published it in the Federal Register. This provides the 
required public notice under the Administrative Procedure Act (APA; 5 
U.S.C. 551 et seq.) and allows for a public comment period. Under the 
APA, the public retains the right to comment. FTA anticipates, however, 
that the pre-proposal consensus agreed upon by this committee will 
effectively address virtually all major issues prior to publication of 
a proposed rulemaking.

B. The Federal Transit Administration's Commitment

    In initiating this regulatory negotiation process, FTA plans to 
provide adequate resources to ensure timely and successful completion 
of the process. This includes making the process a priority activity 
for all representatives, components, officials, and personnel of FTA 
who need to be involved in the rulemaking, from the time of initiation 
until such time as a final rule is issued or the process is expressly 
terminated. FTA will provide administrative support for the process and 
will take steps to ensure that the negotiated rulemaking committee has 
adequate resources to complete its work in a timely fashion in each 
case as reasonably determined by FTA. These may include the provision 
or procurement of such support services as properly equipped space 
adequate for public meetings and caucuses; logistical support; word 
processing and distribution of background information; the services of 
a facilitator; and additional research and other technical assistance. 
FTA hired Susan Podziba & Associates, a public policy mediation and 
consensus building company, to act as the facilitator for this 
negotiated rulemaking.

C. Committee Members

    As discussed above, the negotiated rulemaking process is 
fundamentally different from the usual process for developing a 
proposed rule. Negotiation allows interested and affected parties to 
discuss possible approaches to various issues rather than simply being 
asked in a regular notice and comment rulemaking proceeding to respond 
to details on a proposal developed and issued by an agency. The 
negotiation process involves the mutual education of the parties by 
each other on the practical concerns about the impact of various 
approaches. Each committee member participates in resolving the 
interests and concerns of other members, rather than leaving it 
exclusively to the agency to bridge different points of view.
    A key principle of negotiated rulemaking is that agreement is by 
consensus, as defined by the committee. Thus, no one interest or group 
of interests shall control the process. Under the NRA as noted above, 
``consensus'' usually means the unanimous concurrence among interests 
represented on a negotiated rulemaking committee, though a different 
definition may be employed in some cases. In addition, experience has 
demonstrated that using a professional mediator to facilitate this 
process will assist all potential parties, including helping to 
identify their interests in the rule and enabling them to reevaluate 
previously stated positions on issues involved in the rulemaking 
effort.

D. Key Issues for Negotiation

    The Conference Committee report on SAFETEA-LU requested that FTA 
and the negotiated rulemaking committee consider the issues listed 
below:
    1. Are there potential limited conditions under which public 
transit agencies can provide community-based charter services directly 
to local governments and private non-profit agencies that would not 
otherwise be served in a cost-effective manner by private operators?
    2. How can the administration and enforcement of charter bus 
provisions be better communicated to the public, including use of 
internet technology?
    3. How can the enforcement of violations of the charter bus 
regulations be improved?
    4. How can the charter complaint and administrative appeals process 
be improved?

In addition to those issues posed in the Conference Committee Report, 
FTA identified the following issues for consideration by the committee:

    1. A potential new exception for emergency services such as 
evacuation and training for emergencies, including homeland security, 
natural disasters, and other emergencies.
    2. A new process for determining if there a private charter bus 
companies willing and able to provide service that would utilize 
electronic notification and response within 72 hours.
    3. A new exception for transportation of government employees, 
elected officials, and members of the transit industry to examine local 
transit operations, facilities, and public works.
    4. Clarify the definitions of regulatory terms.

FTA invited comment on all of these issues.

III. Comments Received

    We received 20 comments on the proposed issues for consideration by 
the advisory committee; see document published 71 FR 5037, Jan. 31, 
2006. We heard from large and small public transportation providers, 
rural transportation providers, large, medium, and small bus companies, 
transit associations, charter associations, and several state 
Departments of Transportation (state DOT). While we have summarized the 
comments received, we do not feel it is appropriate at this time to 
respond to the comments received. As a member of the advisory 
committee, FTA is eager to engage in discussions and deliberations with 
the other members of the committee regarding the issues identified in 
the Conference Committee Report and the issues we identified. 
Responding to comments now could give the impression that we have 
settled on a particular approach or resolution.

Conference Committee Report Issues

1. Are there potential limited conditions under which public transit 
agencies can provide community-based charter services directly to local 
governments and private non-profit agencies that would not otherwise be 
served in a cost-effective manner by private operators?
    Private charter operators took exception to the inclusion of the 
term ``cost-effective'' in this issue because there has been no 
demonstrated ``unmet need'' by public transportation providers. One 
commenter noted that cost-effectiveness cannot be equated with price. 
Providing incidental charter service will cost private carriers and 
public transit systems roughly the same. Public transit systems, 
however, often price their service at or below their costs for 
providing the service. According to this commenter that argument ``goes 
to very heart of `unfair government competition.' '' Another private 
charter operator noted that while they do not believe there is an unmet 
charter service need, if public transportation providers could 
demonstrate ``that a valid need exists to create further exceptions to 
the charter rule, we would only consider supporting such exceptions if 
they were clearly defined and significantly limited; if there were more 
accountability, reporting and

[[Page 18058]]

publication requirements built into the process; and if we could be 
assured of more consistent and aggressive enforcement of the charter 
rules.''
    Several comments from public transportation providers asked FTA to 
revise the charter rules to make them more flexible for FTA funded 
providers in rural areas. One commenter summarized this issues as: 
``Charter bus operators seldom base equipment in rural areas and thus 
face high mobilization costs if they are to move vehicle to small 
communities to provide services for limited periods of time. Since 
private charter companies are often unable to provide the service at a 
price the group can afford, the service need goes unmet.'' Another 
commenter noted that public officials who already have limited budgets 
feel they should be able to use the vehicles for community-based events 
such as transporting juries to crime locations or transporting 
potential new business owners who may be interested in locating in the 
area.
    A few comments from public transportation providers supported an 
exception from charter regulations for those transit systems that 
contract out their day-to-day operations to a private for-profit 
transit provider. Those commenters assert that these contracts already 
support private charter operations, and, thus, the regulations should 
not apply to their systems. One of these commenters requested that the 
regulations require the public transit agency, instead of the customer, 
contact the private charter company. This commenter believes that such 
a requirement would lessen the frustration of those seeking charter 
services.
2. How can the administration and enforcement of charter bus provisions 
be better communicated to the public, including use of internet 
technology?
    All comments received agreed that FTA could more effectively use 
the internet to inform the public and transportation providers 
regarding requests for charter service. One commenter suggested that 
all transit agencies provide their chartering policies on their 
websites. Another commenter states that ``those companies willing and 
able to provide charter service should have to submit information on 
service area and ability to provider charters to [FTA] and to the 
[state DOTs] so that the information will be readily available to 
public transit providers in their service areas.'' This commenter also 
states that following this method would provide a record of 
notification and responses, or non-responses. One commenter encouraged 
the use of the Internet but warned that many rural operators still do 
not have access to the Internet.
    A state DOT would like to see FTA develop a brochure--paper and on 
the Internet--that would inform state and local officials as to when a 
transit agency cannot provide service even though providing such 
service would appear to be consistent with the transit agency's 
mission. This commenter also believes that FTA should adopt methods for 
removing private charter companies from the list of willing and able 
companies when that private charter company, in fact, never provides 
the services.
    A private operator also suggested a Web-based clearinghouse and 
recommended that the Web site be arranged to send alerts to private 
operators that there is a request for charter service. In addition, 
this commenter noted that FTA could more regularly and effectively 
communicate the rules to public transit grantees through ``Dear 
Colleague'' letters, publications, audits, congressional testimony, 
trade association presentations and other means. This commenter also 
encouraged FTA publish complaints and enforcement actions on the 
Internet.
3. How can the enforcement of violations of the charter bus regulations 
be improved?
    One commenter suggested that the committee consider definitions (or 
a requirement for formal FTA written guidance) to make it clear under 
what conditions the FTA, or a state DOT for rural operators, may 
require a transit agency to cancel pending prohibited charter service, 
when doing so would require the transit agency to nullify a contract 
commitment. Additionally, this commenter suggested the committee might 
consider requiring FTA to develop standard methods that can be used by 
FTA and state DOTs to evaluate a complaint and, in particular, confirm 
that a transit agency did not provide prohibited charter service.
    A state DOT suggested letting non-charter systems know up-front the 
ramifications of performing charter service. Another state DOT 
commented that state-level bus associations and the national 
associations should receive copies of all complaints, and FTA's 
regional offices should have appropriate levels of dedicated personnel 
in order to participate in any complaint and enforcement activities.
    A public transportation provider stated that FTA can improve its 
enforcement of violations of charter prohibitions by issuing a written 
warning to the transit agency for the first offense. The warning serves 
to inform the agency that their action is deemed inappropriate. If 
there are subsequent offenses, then the transit agency should lose its 
Federal funding in the amount of the Federal share of the cost of the 
vehicle(s) it used to provide the charter service in question.
    A private charter operator commented that the Secretary should 
clearly and repeatedly inform all transit assistance recipients of the 
regulations governing use of equipment purchased with Federal funds and 
FTA should offer tools to transit agencies to aid in this compliance 
including: Greater consistency in enforcement decisions; publication of 
enforcement decisions; clear guidance on permissible and impermissible 
actions and appropriate training for agency employees assigned the 
responsibility for enforcing the charter rules. This comment also 
suggested the Secretary could promote greater compliance among public 
agencies by requiring them to notify FTA of charter service provided 
and audits of the charter service provided should be conducted to 
ensure compliance.
    Another private operator suggested two enforcement options: (1) A 
financial penalty (developed on a predetermined, progressive scale) or 
(2) a total prohibition to provide charter service for an extended 
period of time.
4. How can the charter complaint and administrative appeals process be 
improved?
    One state DOT suggested the committee consider allowing FTA to make 
a determination that a complaint is substantially incomplete, such that 
the complainant can be requested to provide additional information or 
documentation before FTA will accept or act on the complaint.
    A private charter operator stated if FTA offered a more open, 
flexible and timely process, the appeals process could indeed become 
truly fair for all parties. FTA should consider the average length of 
time an appeal takes from the initiation to resolution; the ability of 
a Regional decision to be overturned; and the fairness of this process 
to both the complainer and the complainant. Another private operator 
suggested each grantee or sub-grantee should provide FTA with an annual 
report of the actual dates and total compensation of charter services 
it provided. This type of report could be generated and reported with 
only a minimal amount of effort by the grantees. The data would serve 
as a basis for evaluating the extent of these

[[Page 18059]]

services, and should FTA receive a charter complaint, there would be a 
record of such activity. The information would expedite the FTA's 
administrative compliance review of these provisions, and in turn, the 
timeliness on any determination of any complaint and appeal process 
will certainly be reduced. This commenter also suggested that FTA 
should also impose a penalty for grantees' failure to report charter 
service dates and their associated revenue.

FTA Issues

1. A potential new exception for emergency services such as evacuation 
and training for emergencies, including homeland security, natural 
disasters, and other emergencies
    Several public transportation providers supported an exception from 
charter service regulations for emergency services. One comment 
summarized their support for such an exception ``because in times of 
crisis, brownouts, natural catastrophic events, or by order of the 
Governor or his designated emergency response agency, public systems 
should be able to provide non-scheduled service on an immediate basis, 
e.g., evacuations, particularly for local government and non-profit 
personnel but also more broadly.'' In addition, this commenter noted 
``we believe that providing charter transportation to assist government 
officials with training is consistent with the broader exception for 
serving government officials raised in the first question posed by 
Congress and therefore supports a new exception for training as raised 
in this question.''
    Private operators expressed concern about this potential exception. 
One commented that it is premature to create such an exception at this 
time and discussion by the committee on these additional issues, such 
as an emergency services exception, should occur only after consensus 
is reached on the core issues. Another private operator stated that 
issues one and three on FTA's list of issues are totally new issues 
beyond the scope of the conference committee report and this commenter 
recommended that the regulatory negotiation advisory committee only 
consider these items if there are limited conditions under which public 
transit agencies can provide community-based charter services directly 
to local governments and private non-profit agencies that would not 
otherwise be served in a cost-effective manner by private operators. 
Another private operator stated that a potential emergency service 
exemption does not fit within topic one on the Conference Committee 
Report list, and this topic should not be lumped into a rulemaking that 
relates to government competition with the private sector. Discussions 
relating to national security and emergency services training, by 
necessity, will require a different group of interested parties than 
those identified for this rulemaking.
2. A new process for determining if there are private charter bus 
companies willing and able to provide service that would utilize 
electronic notification and response within 72 hours
    All comments received agreed with utilizing an electronic 
notification and response system. A private charter operator commented 
that FTA should modernize the charter rules through a Web-based 
approach with electronic notification. Once a notice is issued, all 
users would have the same amount of time in which to respond. All users 
would receive the information the same way, and, thus, be in the same 
position to respond. A state DOT also agreed with the notion of 
utilizing an electronic or internet notification system in lieu of the 
current system because it would be cost effective, timely way of doing 
business. Another state DOT stated an electronic system would 
potentially let publicly funded transit systems know that charter 
service is not available to a group of passengers and would allow the 
publicly funded system to perform that service.
3. A new exception for transportation of government employees, elected 
officials, and members of the transit industry to examine local transit 
operations, facilities, and public works
    Private charter operators object to this potential exception 
because ``any exemption applied to providing service to government 
employees will have a severe negative effect on many private operators 
most of which are small businesses.'' In addition, any exemption that 
would allow transit agencies to undercut the private sector and provide 
similar fixed-contract services to any government agency, is not within 
the scope of Conference Committee Report's issues and was not the 
intent of Congress. An association stated that school districts should 
be excluded from any new exception for local government entities.
    Public transportation providers generally supported this exception. 
One noted that it supports an exemption for the transportation of 
government officials or other similar individuals ``who are 
participating in a tour of transit facilities or are en route to a 
transit agency-sponsored event.'' Another public transportation 
provider commented that ``if the funding sources see a duplication of 
spending and that dollars could be saved, then this will be a good 
idea.'' This commenter also noted that it is very difficult for an 
operator of a public transit system to tell elected officials that they 
can not provide a service even though that governmental entity owns and 
operates the vehicle. One also commented that ``the committee should be 
clear on what constitutes `public work.' ''
4. Clarify the definitions of regulatory terms
    Comments received generally agree that there should be a 
clarification of the terms used in the charter bus regulations. One 
noted that the committee should be sure all definitions in the rule, 
and FTA guidance materials that result from the rule, are applicable to 
demand response services. Another commented that consensus on the 
definitions of regulatory terms is absolutely essential to the success 
of any changes to the charter rule. An association provided a list 
terms that should be clarified: ``Charter,'' ``regular and continuing 
service,'' ``closed door service,'' and ``pattern of violations.''
    Finally, we received three comments suggesting new issues for 
consideration by the advisory committee. Two commenters suggested that 
the negotiated rulemaking advisory committee consider consolidating all 
charter service requirements into one regulation. These commenters note 
that while there are slightly different approaches in each of the 
program areas (charter, school, and complementary paratransit service), 
in the interest of simplicity and consistency, FTA should create one 
set of regulations to ensure that ``private purveyors'' are not 
adversely affected by the existence of Federally subsidized assets. The 
third comment suggested the committee address FTA policies relative to 
the enforcement of charter rules and the boundary between charter and 
mass transit services in specific circumstances, such as university 
transportation and transportation to/from special events. The advisory 
committee will determine whether to consider these two additional 
issues.

IV. Interests Likely To Be Affected; Representation of Those Interests

    The advisory committee will include a representative from FTA and 
from the interests and organizations listed below. The FTA 
representative is the Designated Federal Official (DFO) and will 
participate in the deliberations and

[[Page 18060]]

activities of the committee. The DFO will be authorized to fully 
represent FTA in the discussions and negotiations of the committee.
    The DFO for the Charter Bus Negotiated Rulemaking Advisory 
Committee (CBNRAC) will be David B. Horner, Chief Counsel of FTA. As 
the DFO, Mr. Horner will serve as the Chairperson for the CBNRAC and is 
primarily responsible for ensuring the proper administration of the 
CBNRAC. The Chairperson's responsibilities are set out in the Charter 
for the CBNRAC, which is included in the docket for this rulemaking.
    The CBNRAC will include the following individuals:
    1. Community Transportation Association of America (CTAA; 
represented by Dale Marsico).
    2. Northwest Motorcoach Association/Starline Luxury Coaches 
(represented by Gladys Gillis).
    3. American Association of State Highway and Transportation 
Officials (AASHTO; represented by David Spacek from IL DOT).
    4. National School Transportation Association (NSTA; represented by 
John Corr from Transgroup).
    5. Trailways (represented by Jack Burkett).
    6. Lancaster Trailways of the Carolinas (represented by Mary 
Presley).
    7. American Public Transportation Association (APTA; represented by 
Dan Duff).
    8. Kansas City Area Transportation Authority (KCATA; represented by 
Mark Huffer).
    9. New York Metropolitan Transportation Authority (NYMTA; 
represented by Christopher Boylan).
    10. Los Angeles County Municipal Operators Association (LACMOA; 
represented by Stephanie Negriff of Santa Monica's Big Blue Bus).
    11. Amalgamated Transit Union (ATU; represented by Karen Head).
    12. Oklahoma State University, The Bus Community Transit System 
(represented by Hugh Kierig).
    13. Monterey-Salinas (MST; represented by Carl Sedoryk).
    14. Taxicab, Limousine & Paratransit Association (TLPA; represented 
by Harold Morgan).
    15. South Dakota Department of Transportation (represented by Ron 
Baumgart).
    16. American Bus Association (ABA; represented by Clyde Hart).
    17. United Motorcoach Association (UMA; represented by Victor 
Parra).
    18. FTA.
    We asked for comment on our proposed list of committee members and 
received comments primarily requesting representation of certain 
individuals on the CBNRAC. Others requested representation of specific 
interests. We believe our list of committee members for the CBNRAC is 
responsive to the concerns expressed by commenters. What follows is a 
summary of the comments received regarding our list of proposed 
interests. We do not include, however, a summary of specific 
individuals who applied for membership or were nominated for membership 
on the committee. Those names can be obtained by reviewing the docket 
for this matter.
    One comment asked that we include an employee representative on the 
negotiated rulemaking advisory committee. This would ensure that the 
revised regulations on charter service protect the interests of the 
workers in both the private bus industry and the public transit 
agencies.
    FTA agrees with this comment, and, therefore, we have included 
employee representation by selecting the Amalgamated Transit Union to 
participate on the CBNRAC.
    A state DOT emphasized the importance of having small rural transit 
providers represented as well as non-profit agencies, senior centers 
and other human service agencies who are users of public transportation 
services. This commenter also noted that the list of individuals 
proposed to be named to the committee does not appear to include an 
officer of a state DOT. This is a significant omission and the 
committee should not be convened until one or more state DOT officials 
are made part of the committee.
    FTA agrees with this comment, and, in response, we have included 
the South Dakota Department of Transportation and a member from the 
American Association of State Highway and Transportation Officials.
    A private charter association advised that the inclusion of 
[elderly, disabled, and other consumers groups] will only serve to 
detract from the fundamental discussion of whether there are limited 
conditions whereby public transit operators might provide community-
based charter services directly to local governments and private non-
profit agencies. The commenter went on to note these additional 
interests, while representative of parts of the community, are not 
representative of the key elements to this discussion. Another private 
charter operator stated the number of the interest groups FTA 
identified--consumer with disabilities, elderly consumers, for-profit 
consumers, convention bureaus and representatives of large sporting 
events--would have the effect of skewing the discussions and shift the 
balance of the negotiation advisory committee membership in favor of 
the pro charter views espoused by transit agencies. Adding 
representatives from these groups to the negotiation advisory committee 
goes beyond the scope of the negotiated rulemaking as set by the 
conference committee report. An association for private charter 
operators echoed this comment by stating: ``These parties may believe 
they have legitimate interests in the negotiations; however, they are 
in no way referenced under the issues identified as subjects for the 
rulemaking in the SAFETEA-LU Conference Report.''
    FTA disagrees that with these comments to the extent that they 
suggest FTA cannot include interests that were not identified in 
SAFETEA-LU. Convening a negotiated rulemaking advisory committee is not 
mandated by SAFETEA-LU and SAFETEA-LU did not identify nor limit 
interests that might participate in the negotiations. Therefore, FTA 
has exercised its discretion to select a balanced panel of groups and 
interests to deliberate the revisions to the charter bus regulations.
    One comment asked for private sector school bus contractor 
representation on the committee because those individuals are an 
important player in the charter community and to the success of the 
overall negotiated rulemaking process on this issue. This type of 
service represents a significant amount of business for school bus 
contractors and is the area where we find that violations of the 
charter bus rules often occur.
    FTA agrees with this comment and has included the National School 
Transportation Association on the CBNRAC.

A. Meeting Location and Dates

    All meetings of the CBNRAC will be held in Washington, DC at 400 
Seventh Street, SW., in room 6248. The first meetings will be held on 
May 8th and 9th from 9 a.m. until 4:30 p.m. Subsequent meetings dates 
will be discussed during the first meeting and a Federal Register 
notice will be issued announcing those meeting dates and time. Each of 
the individuals selected will receive a letter confirming their 
participation on the CBNRAC.

B. Persons Not Selected for Committee Membership

    We believe that each potentially affected group does not need to 
participate directly in the negotiations. What is important is that 
each affected interest be adequately represented. It is very important 
to recognize that

[[Page 18061]]

interested parties who are not selected for membership on the committee 
can make valuable contributions to this negotiated rulemaking effort in 
several ways:
     The person or organization could request to be placed on 
the committee mailing list, submitting written comments, as 
appropriate;
     Any member of the public could attend the committee 
meetings, caucus with his or her interest's member on the committee, 
and, as provided in FACA, speak to the committee. Time will be set 
aside during each meeting for this purpose, consistent with the 
committee's need for sufficient time to complete its deliberations;
     The person or organization could assist in the work of a 
workgroup that might be established by the committee; or
     The person or organization may participate by telephone. 
FTA will establish a call-in number for that purpose. Members of the 
public who wish to participate by phone may request the call-in number 
by writing to the Chairperson, David B. Horner, Chief Counsel, Federal 
Transit Administration, 400 Seventh Street, SW., Room 9316, Washington, 
DC 20590. At the Chairperson's discretion, the number of individuals 
participating may be limited.
    Informal workgroups are usually established by an advisory 
committee to assist it in ``staffing'' various technical matters (e.g., 
researching or preparing summaries of the technical literature or 
comments on particular matters such as economic issues) before the 
committee so as to facilitate committee deliberations. They also might 
assist in estimating costs and drafting regulatory text on issues 
associated with the analysis of the costs and benefits addressed, and 
formulating drafts of the various provisions and their justification 
previously developed by the committee. Given their staffing function, 
workgroups usually consist of participants who have expertise or 
particular interest in the technical matter(s) being studied.

C. Notice of Proposed Rulemaking

    The CBNRAC's objective will be to prepare a report, consisting of 
its consensus recommendations for the regulatory text of a draft notice 
of proposed rulemaking (NPRM). This report may also include suggestions 
for the NPRM preamble, regulatory evaluation, or other supplemental 
documents. If the CBNRAC cannot achieve consensus on some aspects of 
the proposed regulatory text, it will, pursuant to the ``ground rules'' 
the CBNRAC has established, identify in its report those areas of 
disagreement, and provide explanations for any disagreement. FTA will 
use the information and recommendations from the CBNRAC report to draft 
a notice of proposed rulemaking and, as appropriate, supporting 
documents. CBNRAC recommendations and other documents produced by it 
will be placed in the rulemaking docket.
    In the event that FTA's NPRM differs from the CBNRAC's consensus 
recommendations, the preamble to an NPRM addressing the issues that 
were the subject of the negotiations will explain the reasons for the 
decision to depart from the CBNRAC's recommendations.
    Following the issuance of NPRM and comment period, FTA will prepare 
and provide to the CBNRAC a comment summary. The CBNRAC will then be 
asked to determine whether it should reconvene to discuss changes to 
the NPRM based on the comments.

D. Committee Procedures

    Under the general guidance of the facilitator, and subject to legal 
requirements, the CBNRAC will establish detailed procedures for the 
meetings. The meetings of the CBNRAC will be open to the public. Any 
person attending the meetings may address the CBNRAC if time permits or 
may file statements with the committee.

E. Record of Meetings

    In accordance with FACA requirements, the facilitator will prepare 
summaries of all CBNRAC meetings. These summaries will be placed in the 
public docket for this rulemaking.

    Issued this 3rd day of April 2006.
Sandra K. Bushue,
Deputy Administrator, Federal Transit Administration.
[FR Doc. 06-3411 Filed 4-7-06; 8:45 am]
BILLING CODE 4910-57-M