Charter Service, 7526-7546 [E7-2715]

Agencies

• Federal Transit Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 72, Number 31 (Thursday, February 15, 2007)]
[Proposed Rules]
[Pages 7526-7546]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-2715]



[[Page 7525]]

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Part III





Department of Transportation





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Federal Transit Administration



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49 CFR Part 604



Charter Service; Proposed Rule

Federal Register / Vol. 72, No. 31 / Thursday, February 15, 2007 / 
Proposed Rules

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DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

49 CFR Part 604

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


Charter Service

AGENCY: Federal Transit Administration, DOT.

ACTION: Notice of proposed rulemaking.

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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, the Federal Transit Administration 
(FTA) established a committee to develop, through negotiated rulemaking 
procedures, recommendations for improving the regulation regarding 
unauthorized competition from recipients of Federal financial 
assistance. The proposed revisions contained in this notice of proposed 
rulemaking (NPRM) represent a complete revision to the charter service 
regulations contained in 49 CFR part 604. The NPRM contains the 
consensus work product of the Charter Bus Negotiated Rulemaking 
Advisory Committee (CBNRAC), which was able to reach consensus on a 
majority of the regulatory language. Where the CBNRAC was unable to 
reach consensus, FTA proposes revisions to the charter service 
regulations based on the open, informed exchange of information that 
took place during meetings with the CBNRAC.

DATES: Comments must be received by April 16, 2007. Late filed comments 
will be considered to the extent practicable.

ADDRESSES: You may submit comments by any of the following methods:
    Federal e-Rulemaking Portal: Go to https://www.regulations.gov. 
Follow the online instructions for submitting comments.
    Web site: https://dms.dot.gov. Follow the instructions for 
submitting comments on the DOT electronic docket site.
    Fax: 202-493-2251.
    Mail: Docket Management Facility; U.S. Department of 
Transportation, 400 Seventh Street, SW., Nassif Building, PL-401, 
Washington, DC 20590-0001.
    Hand Delivery: Room PL-401 on the plaza level of the Nassif 
Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays.
    Instructions: When submitting comments electronically to 
Department's Docket Management System (DMS) Web site located at https://
dms.dot.gov, you must use docket number 22657. This will ensure that 
your comment is placed in the correct docket. If you submit comments by 
mail, you should submit two copies and include the above docket number. 
If you wish to receive confirmation that FTA received your comments, 
you must include a self-addressed stamped postcard. Note that all 
comments received will be posted without change to https://dms.dot.gov. 
This means that if your comment includes any personal identifying 
information, such information will be made available to users of DMS. 
You may review the Department's complete Privacy Act Statement in the 
Federal Register published on April 11, 2000 (65 FR 19477) or you may 
visit https://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: Linda Lasley, Senior Advisor, Office 
of the Administrator, Federal Transit Administration, 400 Seventh 
Street, SW., Room 9328, Washington, DC 20590, (202) 366-4011 or 
Linda.Lasley@dot.gov; Nancy-Ellen Zusman, Attorney-Advisor, Office of 
the Chief Counsel, 200 West Adams Street, Suite 320, Chicago, IL 60606, 
(312) 353-2789 or Nancy-Ellen.Zusman@dot.gov; or Elizabeth Martineau, 
Attorney-Advisor, Office of the Chief Counsel, 400 Seventh Street, SW., 
Room 9316, Washington, DC 20590, (202) 366-1966 or 
Elizabeth.Martineau@dot.gov.

SUPPLEMENTARY INFORMATION:

I. Statutory Authority

    Pursuant to the direction contained in the Joint Explanatory 
Statement of the Committee of Conference, for section 3023(d), 
``Conditions on Charter Bus Transportation Service'' of SAFETEA-LU, FTA 
established a Federal Advisory Committee on May 5, 2005, to develop 
recommendations through negotiated rulemaking procedures for 
improvement of the regulation regarding unauthorized competition from 
recipients of Federal financial assistance.

II. Advisory Committee

    The Charter Bus Negotiated Rulemaking Advisory Committee (CBNRAC) 
consisted of persons who represented the interests affected by the 
proposed rule (i.e., charter bus companies, public transportation 
agencies--recipients of FTA grant funds), and other interested 
entities. The CBNRAC included the following organizations:

American Association of State Highway and Transportation Officials;
American Bus Association;
American Public Transportation Association;
Amalgamated Transit Union;
Capital Area Transportation Authority;
Coach America;
Coach USA;
Community Transportation Association of America;
FTA;
Kansas City Area Transportation Authority;
Lancaster Trailways of the Carolinas;
Los Angeles County Municipal Operators Association
Monterey Salinas Transit;
National School Transportation Association;
New York State Metropolitan Transportation Authority;
Northwest Motorcoach Association/Starline Luxury Coaches;
Oklahoma State University/The Bus Community Transit System;
River Cities Transit;
Southwest Transit Association;
Taxicab, Limousine & Paratransit Association;
Trailways; and
United Motorcoach Association.

    The CBNRAC met in Washington, DC on the following dates:

May 8-9
June 19-20
July 17-18
September 12-13
October 25-26
December 6-7

    FTA hired Susan Podziba & Associates to facilitate the CBNRAC 
meetings and prepare meeting summaries. All meeting summaries, 
including materials distributed during the meetings, are contained in 
the docket for this rulemaking (22657). During the first 
meeting of the CBNRAC, the committee developed ground rules for the 
negotiations, which are summarized briefly below:
    [cir] The CBNRAC operates by consensus, meaning that agreements are 
considered reached when there is no dissent by any member. Thus, no 
member can be outvoted.
    [cir] Work groups can be designated by the CBNRAC to address 
specific issues or to develop proposals. Work groups are not authorized 
to make decisions for the full CBNRAC.
    [cir] All consensus agreements reached during the negotiations are 
assumed to be tentative agreements contingent upon additional minor 
revisions to the language until members of the CBNRAC

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reach final agreement on regulatory language. Once final consensus is 
achieved, the CBNRAC members may not thereafter withdraw from the 
consensus.
    [cir] Once the CBNRAC reaches consensus on specific provisions of a 
proposed rule, FTA, consistent with its legal obligations, will 
incorporate this consensus into its proposed rule and publish 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 the major issues prior to publication of a proposed 
rulemaking.
    [cir] If consensus is reached on all issues, FTA will use the 
consensus text as the basis of its NPRM, and the CBNRAC members will 
refrain from providing formal negative comments on the NPRM.
    [cir] If the CBNRAC reaches agreement by consensus on some, but not 
all, issues, the CBNRAC may agree to consider those agreements as final 
consensus. In such a case, FTA will include the consensus-based 
language in its proposed regulation and decide all the outstanding 
issues, taking into consideration the CBNRAC discussions regarding the 
unresolved issues and reaching a compromise solution. The CBNRAC 
members would refrain from providing formal negative comments on 
sections of the rule based on consensus regulatory text, but would be 
free to provide negative comments on the provisions decided by FTA.
    [cir] In the event that CBNRAC fails to reach consensus on any of 
the issues, FTA will rely on its judgment and expertise to decide all 
issues of the charter regulation, and CBNRAC members may comment on all 
components of the NPRM.
    [cir] If FTA alters consensus-based language, it will identify such 
changes in the preamble to the proposed rule, and the CBNRAC members 
may provide formal written negative or positive comments on those 
changes and on other parts of the proposed rule that might be connected 
to that issue.
    A complete description of the ground rules is contained in the 
docket for this rulemaking.
    Finally, the CBNRAC reached consensus on the issues the committee 
would consider during its negotiations. The committee agreed to 
consider the four issues included in the Conference Committee report:
    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 the use of 
Internet technology?
    3. How can enforcement of violations of the charter bus regulations 
be improved?
    4. How can the charter complaint and administrative appeals process 
be improved?
    The CBNRAC also agreed to consider four additional issues:
    1. 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.
    2. 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.
    3. Review and clarify, as necessary, the definitions of regulatory 
terms.
    4. 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.

III. Overview

    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 
already developed and issued by an agency. The negotiation process 
involves the mutual education of the parties on the practical concerns 
about the impact of various regulatory approaches.
    The negotiated rulemaking process for the charter service 
regulation resulted in a complete overhaul of the regulation. This was 
done in response to longstanding concerns that the existing regulation 
is hard to understand because it is unclear about what activities 
constitute ``charter service.'' In addition, members of the CBNRAC 
agreed that the existing exceptions to the prohibition on charter 
service should be clarified. Concerns were also raised about the 
complaint process. Some members felt that complaints were filed in a 
vindictive manner and without a substantive basis. Others felt that 
once a complaint was filed, the standard contained in the existing 
regulation made it nearly impossible to receive the relief requested. 
All members of the CBNRAC felt that the complaint and appeal process 
takes too long.
    What follows is a description of the decisions reached on each of 
the issues that the CBNRAC agreed to consider during negotiations. Each 
issue raised sub-issues that the committee agreed were also worth 
considering, and those sub-issues are also discussed. If consensus was 
reached on an issue (or sub-issue), we explain the consensus. If 
consensus was not reached, we explain the relative positions of the two 
main groups: the public transit caucus and the private charter caucus, 
and then offer a proposal by FTA. We encourage interested parties to 
review the meeting summaries in the docket for a more complete 
description of the positions of the caucuses and the negotiations of 
the CBNRAC.
    Furthermore, two major changes are worth noting at the outset. 
First, the CBNRAC agreed to discard the concept of ``willing and 
able,'' that had persisted for more than 20 years. As a result, private 
charter operators interested in performing requests for charter service 
received by recipients would now be ``registered charter providers.'' 
This term is appropriate because, as explained in further detail later 
in this document, private charter operators would register on an 
Internet site. This website, known as the FTA Charter Registration 
Website, would store the names of private charter operators interested 
in receiving notice from recipients. This new process would replace the 
old ``willing and able'' process.
    Second, the existing regulation contains very limited requirements 
regarding complaints, hearings, and appeals. This proposal contains a 
more robust complaint, hearings, and appeals process. This would ensure 
that FTA has an appropriate mechanism for weeding out frivolous or 
vindictive complaints while ensuring that substantive complaints 
contain the necessary information to inform all parties involved. 
Further, while the existing regulations contain an option for a 
hearing, there are no procedures for a hearing. This NPRM contains 
procedures for a hearing if a complaint merits one.
    To summarize, the proposals contained in this NPRM represent 
consensus language and informed decisions by FTA. The complete rewrite

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of part 604 has been a long time in the making, and is necessary. It is 
the hope of FTA that the clarifications made in this proposal will 
assist public transit agencies in complying with charter service 
regulations and ensure that all parties understand when compliance has 
been achieved.

IV. Conference Committee Report Issues

Issue 1: Limited Exceptions for Providing Community-Based 
Charter Services

    Under the current regulations governing charter service, an FTA 
recipient is generally prohibited from providing charter service unless 
one of the exceptions applies. The existing exceptions are: (1) When 
there is no ``willing and able'' private charter operator; (2) leasing 
equipment; (3) rural hardship; (4) special events; (5) non-profit 
organizations serving individuals with disabilities; (6) non-profit 
social service agencies listed in Appendix A; (7) non-profit 
organizations serving low-income or transit-dependent persons; (8) 
rural non-profit organizations serving the elderly; and (9) formal 
agreement with all willing and able private charter operators.
    The CBNRAC agreed that the revised regulation should also contain 
exceptions. The committee reached consensus on six exceptions: (1) 
Government officials; (2) qualified human service organizations; (3) 
leasing equipment; (4) events of regional or national significance; (5) 
when no registered charter provider responds to notice from a 
recipient; and (6) agreement with registered charter providers. We 
discuss each of these exceptions below. We also discuss one exception 
where the committee could not reach consensus, which was the 
``hardship'' exception. We have added an exception that the committee 
did not consider, but due to past and recent events, we believe should 
be added; an exception for the Administrator. Finally, we discuss three 
sub-issues for all exceptions: Reporting requirements, fully allocated 
costs, and recipients with 1,000 or more buses in peak hour service.
(a) Government Officials
    This is a new exception to the charter regulations and would allow 
recipients to provide charter service to government officials for non-
transit related purposes as long as the recipient provides the service 
in its geographic service area, does not generate revenue (except as 
required by law), and records the trip. The CBNRAC also agreed that 
there should be an hourly annual limit for this exception, but could 
not reach consensus on the number of hours. The public transit caucus 
proposed an annual limit of 125 charter service hours. The private 
charter caucus proposed an annual limit of 80 charter service hours. 
Neither caucus explained why one limit should prevail over the other.
    Since this is a new exception to the charter regulations, FTA 
proposes to accept the private charter caucus' annual limit of 80 hours 
of charter service to government officials for non-transit related 
purposes within the recipient's geographic service area. In accepting 
this proposal, however, FTA believes that extenuating circumstances may 
arise where additional hours may be necessary. As a result, FTA added a 
provision to allow for additional charter service hours under this 
exception, at the Administrator's discretion, in rare or unusual 
circumstances, if the recipient submits a written request: (1) 
Describing the event; (2) explaining why registered charter providers 
in the geographic service area cannot perform the service (e.g., 
equipment, time constraints, or other extenuating circumstances); (3) 
describing the number of charter service hours requested to perform the 
service; and (4) presenting evidence that the recipient has sent the 
request for additional hours to registered charter providers in its 
geographic service area. FTA would review the request and respond to 
the recipient. The recipient would then be responsible for emailing 
FTA's response to the registered charter providers in its geographic 
service area. As with all exceptions under the proposed regulation, the 
recipient would be responsible for recording the service in an 
electronic log.
(b) Qualified Human Service Organizations
    This exception would essentially collapse three exceptions 
contained in the existing regulation pertaining to the elderly, 
individuals with disabilities, and low-income individuals into one 
exception for ``qualified human service organization.'' Consistent with 
the President's Executive Order on Human Service Transportation 
Coordination (February 24, 2004), the CBNRAC reached consensus on 
allowing recipients to provide charter service to ``persons with 
mobility limitations related to advanced age, persons with 
disabilities, and persons struggling for self-sufficiency * * *'' If an 
organization serving the above individuals also receives funds from one 
or more of the 65 Federal programs to be listed in Appendix A to the 
regulation, then the recipient would only need to record the charter 
service in order to provide it. If the organization does not receive 
Federal funds from the programs listed in Appendix A, but serves 
individuals described in this section, then the organization would need 
to register on FTA's Charter Registration Web site and the recipient 
would need to record the charter service. FTA will provide Appendix A 
in the final rule and will update it from time to time as new Federal 
programs are created to assist individuals and organizations covered by 
this exception or when a party sends a petition to the Administrator 
requesting an update to Appendix A.
(c) Leasing FTA-Funded Equipment and Drivers
    The existing exception under the charter regulations allows for a 
recipient to lease equipment to a private charter operator if the 
private charter operator receives a request that exceeds its capacity, 
or the private charter operator does not have equipment accessible to 
the elderly or individuals with disabilities. The CBNRAC reached 
consensus on maintaining this exception with a few minor changes. 
First, the private charter operator would have to be registered on the 
FTA Charter Registration Website. Second, the private charter operator 
would have to own and operate a charter service business. Third, the 
private charter operator would have to exhaust all available vehicles 
from other private charter operators in the recipient's geographic 
service area. Fourth, the recipient would have to record the vehicles 
leased and retain the documentation provided by the private charter 
operator that demonstrates compliance with the first three 
requirements.
(d) Events of National or Regional Significance
    This exception in the current regulation requires a petition to the 
Administrator personally in order to provide charter service for a 
special event. The only limitation is that the service can be provided 
``to the extent that private charter operators are unable to provide 
the service.'' The CBNRAC reached consensus on retaining this 
exception, but with a more formal process for petitioning the 
Administrator. The revised exception would require recipients to first 
consult with private charter operators registered in the recipient's 
geographic service area. After consultation, the recipient may petition 
the Administrator only if the recipient (1) submits the petition at

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least 90 days before the event; (2) describes the importance of the 
event, the amount of charter service needed, and how private charter 
operators will be utilized; and (3) files the petition in the special 
events docket. The Administrator would review the petition, request any 
additional information necessary to make a decision, and then post the 
decision in the special events docket. The Administrator's approval of 
a petition under this exception would be limited to the event described 
in the petition.
(e) When No Registered Charter Provider Responds to Notice From a 
Recipient
    The existing regulation allows a recipient to provide any and all 
charter service to the extent that there are no private charter 
operators interested in providing the service. The CBNRAC reached 
consensus on retaining this exception, but with a modification designed 
to make the whole process more responsive. As noted earlier, the 
implementation of an FTA Charter Registration Website would allow 
recipients and registered charter providers to respond in real time 
regarding charter service requests. Under this exception, a registered 
charter provider would have 72 hours to respond to a request for 
charter service to be provided in less than 30 days and 14 days to 
respond to a request for charter service to be provided in more than 30 
days. If a registered charter provider responds to the request, then 
the recipient may not provide the service, even if the registered 
charter provider and the customer are not able to agree upon a price. 
Alternatively, if no registered charter provider responds to a request, 
then the recipient may provide the service so long as it records the 
proper information in an electronic log.
(f) Agreement With Registered Charter Providers
    This exception in the current regulation allows a recipient to 
enter into an agreement with all private charter operators in its 
geographic service area to allow it to provide charter service directly 
to a customer. The CBNRAC reached consensus on retaining this exception 
with certain modifications to account for the use of the Charter 
Registration Website instead of the annual willing and able process. 
Under the revised exception, the recipient would have to ascertain 
registered charter providers in its geographic service area from the 
Charter Registration Website by January 30th of each year. The 
recipient would have to enter into an agreement with those registered 
charter providers by February 15th of each year.
1. Additional Exceptions

(i) ``Hardship''

    The CBNRAC was unable to reach consensus regarding the ``hardship'' 
exception that currently exists in the charter regulation. This 
exception is intended to allow non-urbanized (rural) areas to provide 
charter service if a private charter operator's provision of this 
service would create a hardship on the customer because the private 
charter operator imposes a minimum duration that is longer than the 
trip length or the private charter operator is located ``too far'' from 
the origin of the charter service.
    The CBNRAC could not reach consensus on what constitutes ``too 
far.'' The private charter caucus proposed retaining the exception as 
is. The public transit caucus offered to replace ``too far'' with 
``deadhead time exceeding total trip time from initial pick-up to final 
drop-off.''
    FTA proposes to retain the hardship exception and replace ``too 
far'' with the public transit caucus' proposal. We believe that this 
proposal sufficiently clarifies what is meant by ``too far'' without 
opening up the exception to abuse.

(ii) Administrator's Discretion

    FTA proposes to add a new exception to address unique situations in 
which it may not be practical or feasible to provide notice to 
registered charter providers. Specifically, FTA proposes an 
Administrator's discretion exception that would allow the Administrator 
to personally approve a recipient's use of Federally-funded assets to 
provide charter service for such events as funerals of local, regional, 
or national significance. Such an event is unanticipated and requires 
an immediate response. For example, the deaths of Presidents Ronald 
Reagan and Gerald Ford underscore the need for flexibility when using 
Federally-funded assets to assist in funeral preparation activities and 
on the day of the funeral. Thus, FTA proposes an Administrator's 
discretion exception to the charter regulations. A recipient would have 
to submit a written request, by facsimile or e-mail, that describes the 
event, describes the charter service requested, explains the time 
constraints for providing the charter service, describes the 
anticipated number of charter service hours needed for the event, the 
type of equipment requested, approximate number of vehicles needed, 
duration of the event, and explains how provision of the charter 
service is in the public's interest. Recipients granted an exception 
under this section would need to retain the record of approval from the 
Administrator for three years and include the approval in its 
electronic records for quarterly reporting on the Charter Registration 
Web site.
(2) Reporting Requirements for All Exceptions
    The CBNRAC agreed that for most of the exceptions a recipient must 
record certain information about the charter service provided. 
Specifically, the committee reached consensus on reporting that would 
require recipients to record an organization's name, address, phone 
number, e-mail address, date and time of service, number of passengers, 
destination, trip length (miles and hours), fee collected, and vehicle 
number. This would be required for charter service provided under the 
exceptions for government officials, qualified human service 
organizations, hardship, and when no registered charter provider 
responds to a notice. For the leasing equipment exception, the 
recipient would have to record the registered charter provider's name, 
address, telephone number, number of vehicles leased, types of vehicles 
leased, vehicle identification numbers, and documentation presented to 
the recipient in support of the rule's requirements. A recipient would 
have to retain this information in an electronic format and for at 
least three years. The recipient would also identify in the record the 
exception that the recipient relied upon when providing charter 
service.
    The CBNRAC could not reach consensus on whether or not the above 
electronic records should be posted on the Charter Registration Web 
site. The public transit caucus believes that posting their electronic 
records to a public Web site may implicate privacy concerns. That 
caucus instead favors the provision of records via e-mail upon request. 
The private charter caucus insisted that electronic records should be 
posted to the Web site in order to facilitate transparency. FTA agrees 
with the private charter caucus, but also recognizes that there may be 
some situations where certain information should not be posted on the 
Web site. Thus, FTA proposes to include a provision in the regulation 
that allows recipients to provide only generalized origin and 
destination information when safety or security is an issue.

[[Page 7530]]

(3) Fully Allocated Costs
    The CBNRAC was unable to reach consensus on whether the concept of 
``fully allocated costs'' should apply to public transit agencies that 
provide charter service. The public transit caucus felt as though the 
requirement would be a barrier to providing community-based 
transportation, but the private charter caucus argued that the 
requirement is necessary to protect private charter operators.
    In the past, FTA required public transit agencies to recover fully 
allocated operating and capital costs and ensure that the charter 
service did not interfere with the intended use of the asset. FTA 
allowed this ``incidental use'' because it believed the charter service 
provided supported the mission of FTA.
    We propose to eliminate the concept of ``fully allocated costs.'' 
The exceptions included in the proposed regulation would allow 
recipients to provide charter service that is in the public interest, 
and is consistent with the overall mission of public transit operators 
as mobility managers within their communities. Hence, the charter 
service that would be allowed under the proposed rule would be an 
incidental use of FTA-funded equipment and facilities, and the recovery 
of fully allocated costs would not be required.
    Further, in the case of service provided to ``qualified human 
service organizations,'' the Federal Interagency Coordinating Council 
on Access and Mobility is currently engaged, in cooperation with the 
Office of Management and Budget, in developing cost allocation 
principals to share fairly the costs of human service transportation. 
To require FTA recipients to recover fully allocated costs from those 
qualified human service organizations, including a share of capital 
costs already subsidized by FTA, would impose unfair conditions on 
those interagency deliberations.
    That being said, FTA encourages and expects recipients that provide 
charter services under the provisions of part 604 to develop fair 
charges to recover as much as possible of the marginal operating cost 
of the service, consistent with the public purpose of the charter 
service, and the ability of the requesting entity to pay. As noted 
earlier, under section 604.12, if a registered charter provider 
responds to the request for charter service, the recipient may not 
provide the service, even if the private charter operator's fee for the 
service prevents the requester from purchasing the trip. This provision 
protects the private charter industry from competition with transit 
operators that receive subsidies from FTA.
(4) 1,000 or More Buses in Peak Hour Service
    The CBNRAC reached consensus on limiting the application of two 
exceptions--qualified human service organizations and government 
officials--to recipients with 1,000 or more buses in peak hour service. 
The public transit caucus requested this limitation, but the private 
charter caucus wholly supported it because of the potentially negative 
impact on private charter operators in urban areas where there are 
higher concentrations of qualified human service organizations and 
government officials. Both caucuses viewed the potential number of 
requests as problematic and felt that it was in each caucuses' interest 
to place a limitation on those two exceptions. FTA requests comments 
from qualified human service organizations and governmental officials 
on the practical impact of this limitation in the final regulation.

Issue 2: How Can We Better Communicate Charter Administration 
and Enforcement to the Public?

    The CBNRAC reached consensus on the use of Internet technology to 
improve communications regarding the charter service regulations. 
Members of the committee acknowledged that virtually all private 
charter companies and public transit agencies have access to the 
Internet and to email. The ability to maintain lists of private charter 
companies, informing the public about allowable activities for public 
transit under the charter service regulations, and posting FTA 
decisions and complaints were all cited as valuable ways to use the 
Internet.
    To effectuate the Internet-based approach, FTA would develop a 
Charter Registration Web site that would serve as a single point of 
contact for private charter operators, recipients, and members of the 
public to obtain information regarding charter service in their 
geographic area. In addition, while FTA currently posts decisions 
regarding charter complaints on its Web site, under the revised 
regulation, we propose to make better use of the Department's Docket 
Management System (DMS) by establishing an exemption docket, special 
event docket, advisory opinion docket, complaint docket, and hearing 
docket. These dockets would be available 24 hours a day and seven days 
a week. Further, DMS has listserv capabilities so that the public can 
receive notice each time the government places a document in the 
docket. We believe this level of transparency would go a long way 
toward informing the public as to which transit agencies do not provide 
charter service (exemption docket); private charter operators as to 
when a public transit agency requests a special event exception 
(special event docket); when FTA provides formal advice to private 
charter operators and recipients (advisory opinion docket); when a 
complaint has been filed against a transit agency (complaint docket); 
and when a complaint has been referred for a hearing (hearing docket). 
The CBNRAC reached consensus on this issue.

Issue 3: How Can Enforcement of Violations of the Charter Bus 
Regulations Be Improved?

    The CBNRAC reached consensus on improved enforcement of charter 
service regulations by focusing on deterrence of risky behavior. 
Members of the committee noted that the seminal question regarding 
enforcement is: ``What is charter service?'' For the public transit 
caucus, it is important to protect the public transit agency's ability 
to provide public transportation and serve its community. This includes 
the ability to modify routes to address congestion or improve mobility 
for the elderly, disabled or low-income populations. For the private 
charter caucus, charter service by public transit agencies should not 
be ``dressed up'' to look like public transportation. The private 
charter caucus believed that service for special events of an irregular 
nature constitutes charter service and the public transit agencies 
should be prohibited from providing such service unless there is no 
private charter operator interested in performing the service.
    The proposed regulation would implement a new remedial scheme, 
giving the decision-maker discretion to determine the type and amount 
of the remedy based on a number of relevant factors, including, but not 
limited to, the gravity of the violation, the revenue earned by 
providing charter service, and the operating budget of the recipient. 
The remedy could take the form of withholding a ``reasonable 
percentage'' of available Federal financial assistance, a complete bar 
on receiving future Federal funds, or a refund to the U.S. Treasury of 
revenue collected in violation of the rule.
    Besides flexibility in the assessment of a remedy, the CBNRAC 
reached consensus on several other ways to improve the enforcement 
process, specifically (1) issuing advisory opinions and (2) conducting

[[Page 7531]]

investigations. The CBNRAC could not reach consensus on whether the 
following measures should be included in a new and improved charter 
service enforcement regime: (1) Cease and desist orders, (2) using 
neutral decision-makers, and (3) considering a pattern of violations as 
an aggravating factor to any remedy assessed. We discuss each of these 
issues below.
(a) Advisory Opinions
    CBNRAC reached consensus that the new rule should incorporate a 
provision enabling public transit agencies and registered charter 
providers to obtain advisory opinions on a case-by-case basis regarding 
whether or not a particular type of transportation would constitute 
charter service. These advisory opinions would serve as a mechanism for 
expedited review by FTA before the recipient performs the service. 
Through this mechanism, recipients and registered charter providers 
alike would receive formal advice about compliance with charter service 
requirements. An advisory opinion would represent the formal position 
of FTA on a matter and may be used in administrative or court 
proceedings. The advisory opinion would be limited, however, to the 
factual circumstances described in the request and would not be binding 
upon a decision-maker adjudicating a charter complaint.
    Advisory opinions represent a more formalized ``letter of 
determination,'' which is currently issued when private charter 
operators or recipients seek regulatory advice from FTA before 
providing charter service. This more formal process would provide 
transparency and consistency regarding FTA's advice. The CBNRAC reached 
consensus on this issue.
(b) Investigations
    Another way to improve enforcement is to ensure that a complaint 
filed has a substantive basis. Members of the CBNRAC raised concerns 
regarding the filing of incomplete complaints or frivolous complaints. 
Thus, the proposed regulation includes a new provision allowing FTA 
ninety days to conduct an investigation regarding a complaint. This 
provision is consistent with the statutory requirement: ``On receiving 
a complaint about a violation of an agreement, the Secretary of 
Transportation shall investigate and decide whether a violation has 
occurred.'' 49 U.S.C. 5323(d) (2). Thus, the CBNRAC reached consensus 
on revised regulatory language that would allow FTA to conduct an 
investigation after a registered charter provider files a complaint. 
The proposed revision would also allow FTA to investigate on its own 
initiative. After an investigation is complete, FTA may dismiss the 
complaint, issue an initial decision based on the pleadings to date, or 
refer the matter to a neutral decision-maker for a hearing.
(c) Cease and Desist Orders
    The CBNRAC was unable to reach consensus on whether advisory 
opinions should also offer an opportunity to request a cease and desist 
order. The public transit caucus worried that such an order could be 
issued wrongfully, thus preventing public transit agencies from 
providing public transportation. The private charter caucus encouraged 
the inclusion of a cease and desist provision as a way to prevent 
financial harm to private charter operators without going through a 
full-blown complaint and hearing process.
    This NPRM does not include a cease and desist provision. While FTA 
believes that a properly worded cease and desist provision would 
protect against ``wrongfully'' issued cease and desist orders, we are 
reluctant to implement a cease and desist process because FTA does not 
have the human resources to administer a cease and desist provision. 
FTA is concerned that interested parties would inundate the agency with 
cease and desist requests. Furthermore, we believe that revisions to 
the charter service definition, coupled with clear exceptions and 
strong remedies for violations of the regulation provide sufficient 
protection of a private charter operator's financial interest.
(d) Neutral Decision-Maker
    During the CBNRAC negotiations, members of the committee expressed 
the deeply held belief that FTA decisions regarding charter service 
complaints are inconsistent. Both caucuses described experiences of 
receiving inconsistent decisions from FTA regarding whether a 
particular service is prohibited charter service. The private charter 
caucus also stated that FTA was biased in favor of public transit 
agencies by advising agencies on how to tailor the charter service so 
as to look like public transportation. As a consequence, members of the 
committee agreed that decision-making regarding charter service 
complaints should be removed from the regional offices and sent to FTA 
headquarters. The caucuses differed, however, on who should render a 
determination once a complaint is sent to FTA headquarters. The public 
transit caucus favored having FTA headquarters make the initial 
decision regarding the complaint. The private charter caucus contended 
that FTA headquarters is biased in favor of public transit agencies 
regarding charter service complaints. Thus, the private charter caucus 
favors the use of an Administrative Law Judge (ALJ) to make the initial 
decision regarding a complaint.
    After careful consideration of the above positions, and considering 
FTA's limited resources, we propose to include a new provision in the 
proposed regulation that would allow a headquarters office to make an 
initial decision regarding a charter service complaint or to refer the 
matter to a neutral decision-maker (Presiding Official) for a hearing. 
The Presiding Official might be an Arbitrator or other hearing officer 
and the parties to the proceeding would be the public transit agency 
and the complaining party. The Presiding Official would then issue a 
recommended decision to an appropriate headquarters office that would 
reject, ratify, or adopt with modifications the recommended decision. 
Any initial decision may be appealed to the Administrator. This 
proposed process allows FTA to make a determination that a hearing is 
unnecessary and issue an immediate decision based on the pleadings to 
date or to refer the matter for a hearing. We believe that this 
approach is less resource intensive but still provides a neutral 
decision-maker for more serious cases that require a hearing.
(e) Pattern of Violations
    As part of the revised rule's more rigorous enforcement scheme, the 
proposed regulation contains language that would increase any remedy 
ordered if the decision-maker determines that there is a ``pattern of 
violations.'' The CBNRAC could not reach consensus on this issue. The 
private charter caucus believed that more than one violation of the 
charter service regulations should incur a severe penalty. The public 
transit caucus believed that more than one violation of the same 
requirement should be treated more severely. The public transit caucus 
argued that more than one violation of different charter service 
requirements should not constitute a pattern of violations, because the 
public transit agency is unlikely to know what constitutes a violation 
of the charter service regulations until FTA informs the public transit 
agency of the violation.
    As will be discussed later in the definitions section of this NPRM, 
we propose to define a pattern of violations as: ``more than one 
finding of non-

[[Page 7532]]

compliance of this Part by FTA beginning with the most recent finding 
of noncompliance and looking back over a period of 72 months.'' We 
intend to apply this definition in the ``remedies'' section of the 
rule. Under that section, if the decision-maker determines there is a 
pattern of violations, then the decision-maker ``shall bar a recipient 
from receiving Federal transit assistance in an amount * * * considered 
appropriate.'' This means that a public transit agency violating the 
charter service regulation for the first time would be treated 
differently, and less severely, than a public transit agency that has 
violated the charter service regulations more than once over the past 
six years. Further, we determined that looking at a six year period 
would be sufficient to determine whether the public transit agency has 
a history of non-compliance with the charter service regulations. FTA 
believes that the new provision on ``pattern of violations'' would 
deter conduct that leads to complaints, would reduce the number of 
complaints, and would promote consultation with FTA.

Issue 4: How Can the Charter Complaint and Administrative 
Appeals Process Be Improved?

    All CBNRAC members agreed that the complaint process should be 
designed so as to produce consistent decisions on charter bus 
complaints. The perceived inconsistency in past charter decisions by 
FTA was attributed in part to region-based adjudication under the 
current rule. The committee expressed concern over the diverse 
approaches for addressing charter violations taken by different 
regions. To this end, the committee recommended that regional offices 
should no longer handle charter complaints. Instead, complaining 
parties would bypass the regional offices and file their complaints 
directly with the FTA Office of the Chief Counsel. FTA headquarters 
would receive complaints, post complaints in a complaint docket, and 
investigate alleged violations.
    Furthermore, the committee reached consensus on a more detailed 
complaint process. The existing rule only requires the filing of a 
complaint that ``is not without obvious merit and that * * * states 
grounds on which relief may be granted.'' This generalized pleading 
process has led to frivolous filings or complaints that do not contain 
enough information to determine the violation of the charter service 
regulations. The revised regulations would require a complainant to 
identify the specific provisions of the charter service regulation 
allegedly violated, provide a complete and concise statement of the 
facts relied upon in filing the complaint, and submit all documents 
offered in support of the complaint.
    Additionally, the CBNRAC reached consensus on new filing and 
service provisions. In the past, there were instances where the 
complainant failed to notify the public transit agency. Instead, the 
FTA regional office sent the complaint. The revised regulation would 
require a complainant to file the complaint with the public transit 
agency and send proof of service to FTA headquarters. Furthermore, the 
committee agreed that associations may file a complaint as a duly 
authorized representative of a registered charter provider. The private 
charter caucus advocated for this position so that registered charter 
providers who work with public transit agencies would not have to file 
a complaint directly. Even so, the association would have to identify 
on whose behalf the complaint is filed.
    Moreover, we would appreciate comments on how to address State 
involvement in the complaint process. For instance, in the case of a 
complaint against a rural transit operator funded as a subrecipient of 
a State under section 5311, we propose that the private charter 
provider should submit a complaint with the State Department of 
Transportation (FTA's direct recipient) first. If the State Department 
of Transportation cannot resolve the complaint, then the private 
charter operator would proceed under subpart F. This option was not 
presented to the CBNRAC and we have not revised regulatory text to 
reflect this proposal. We would, however, appreciate comment on the 
topic.
    In addition to a more detailed complaint process, the CBNRAC agreed 
that the appeals process should have more flexibility, the conciliation 
period should be eliminated, parties should be able to complain about a 
private charter operator or qualifed human service organization's 
registration on the FTA Charter Registration Web site, and it should be 
easier for FTA to dismiss incomplete or non-substantive complaints. 
Each of these points is discussed below.
(a) Appeals
    The CBNRAC reached consensus on an improved appeals process that 
gives the Administrator discretion to take an appeal or modify an 
initial decision. Previously, the Administrator could only consider an 
appeal if ``the appellant presents evidence that there are new matters 
of fact or points of law that were not available or not known during 
the investigation of the complaint.'' 49 CFR 604.20(b). Members of the 
committee viewed that provision as too limiting, and advocated for 
broader discretion. Thus, the new provision would allow an appeal so 
long as the appellant meets the relevant deadlines. Further, even if 
the appellant has not filed an appeal, the Administrator, on his or her 
own motion, may review an initial decision. As noted earlier, the 
initial decision would be made either by a headquarters office or by an 
Arbitrator after a hearing and ratification by a headquarters office. 
Additionally, the new regulation would set out specific timeframes for 
FTA to make decisions regarding the complaint and appeal. Specifically, 
the initial decision would have to be issued 110 days after the 
investigation is complete. A decision on an appeal would have to be 
made within 30 days.
(b) Conciliation Period
    The committee also determined that the mandatory conciliation 
period in the existing rule was almost never used and had no effect 
other than delaying the adjudicatory process. The committee recommended 
that FTA remove this requirement from the new rule and instead include 
a statement that encourages the parties to resolve their dispute 
informally before filing a complaint. Thus, we proposed not to include 
a conciliation period in the revised regulation.
(c) Removal From Charter Registration Web Site
    The CBNRAC reached consensus on providing a new provision that 
allows registered charter providers or recipients to file a complaint 
challenging the registration of a private charter operator or qualified 
human service organization on the Charter Registration Web site. 
Members of the committee approved of this provision because it would 
allow the removal of private charter operators that act vindictively 
when responding to requests for charter service. In other words, a 
private charter operator that responds affirmatively to a notice from a 
recipient requesting charter service but then does not contact the 
customer or negotiates in bad faith with the customer could be removed 
from the Web site and not receive future requests for charter services. 
The proposed regulation sets out specific reasons why FTA could remove 
a registered charter provider from the registration list. In addition, 
we plan to develop an Appendix B that would set out examples of each 
basis for removal.

[[Page 7533]]

    On the other hand, a registered charter provider could file a 
complaint to remove a qualified human service organization from the 
registration list. FTA may remove a qualified human service 
organization for the same reasons a registered charter provider may be 
removed from the registration list (e.g., bad faith and lack of 
documentation).
    Thus, under this new process, a complaint would be filed 
electronically in the complaint docket and a response would be required 
in seven days. FTA would then consider the complaint and response and 
issue a decision in ten business days. FTA's decision would be posted 
in the complaint docket and would identify the reasons for removing or 
allowing the private charter operator or qualified human service 
organization on FTA's Charter Registration Web site. If removal is 
ordered, the decision would identify the length of time for removal and 
when the party may reapply for registration.
(d) Dismissals
    Furthermore, to ensure the integrity of the complaints filed, the 
CBNRAC reached consensus on new provisions that would allow FTA to 
dismiss a complaint, without prejudice, if it is incomplete. FTA may 
also dismiss a complaint, with prejudice, if the complaint, on its 
face, is outside the jurisdiction of FTA, fails to state a claim that 
warrants further investigation, or if the complainant lacks standing to 
file the complaint.

V. Additional Issues Considered by the CBNRAC

Issue 5: 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

    The CBNRAC discussed this issue because the private charter caucus 
and public transit caucus were close to an agreement on this issue 
during previous negotiations before the formation of the CBNRAC. 
Essentially, the committee viewed the current ``willing and able'' 
process as protection for private charter operators from unsuccessful 
negotiations with customers who might expect lower prices from public 
transit agencies. The current process also allows public transit 
agencies to provide charter service when there is no private charter 
operator interested in performing the service. Even so, the committee 
recognized that the existing willing and able process is outdated and 
agreed to eliminate it in favor of a web-based registration process.
    The Charter Registration Web site would serve as a database of 
private charter operators who are interested in receiving notice from 
recipients regarding requests for charter service. In order to 
register, private charter operators would have to answer several 
questions about their business and the geographic areas they serve. 
Recipients, upon receiving a request for charter service that a 
recipient is interested in providing, would be required to send an 
email to registered charter providers listed on FTA's Charter 
Registration Web site in the recipient's geographic service area. The 
notification would have to be sent by close of business on the day the 
recipient receives the request, unless the recipient received the 
request after 2 p.m., in which case the recipient would have to send 
the notice by the close of business the next business day. The 
recipient may then provide charter service if no registered charter 
provider responds to the notice within 72 hours for charter service 
requested to be provided in less than 30 days; or within 14 calendar 
days for charter service requested to be provided in 30 days or more. 
The recipient would have to retain an electronic copy of the notice and 
the list of registered charter providers notified of the requested 
charter service for a period of at least three years from the date the 
notice was sent. The recipient would also record certain information 
about the charter service for purposes of quarterly reporting. Members 
of the CBNRAC expressed approval of this real-time process over the 
existing annual notification process.
    The CBNRAC could not reach consensus on whether a private charter 
operator should be required to answer whether it would provide free or 
reduced rate services to qualified human service organizations. The 
public transit caucus argued in favor of such a requirement while the 
private charter caucus argued against a requirement and advocated 
instead that it be optional.
    The proposed regulation includes language that would make it 
optional for a private charter operator to indicate whether they would 
provide free or reduced rate charter services to qualified human 
service organizations. We believe that private charter operators wish 
to support their communities in the same way that many recipients 
support their communities and that they would likely take advantage of 
this option because qualified human service organizations can conduct a 
search on the Charter Registration Web site to look only for those 
private charter operators with free or reduced rates. We do not 
believe, however, that private charter operators should be required to 
provide such information.
(a) Registration of Qualified Human Service Organizations
    In addition to registering private charter operators, the Charter 
Registration Web site would also serve as a database for qualified 
human service organizations that do not receive funding from the 
Federal programs listed in Appendix A to the regulation. In order to 
register, qualified human service organizations would have to answer 
several questions about their organization, its funding, and its 
mission.
    After registering, these qualified human service organizations 
would be eligible to receive free or reduced rate charter services from 
either recipients or registered charter providers. The committee 
reached consensus on this issue.
    FTA requests comment from qualified human service organizations, 
not receiving funding from the Federal programs listed in Appendix A, 
on the practical impact of these registration requirements.

Issue 6: 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

    The CBNRAC reached consensus on a new applicability provision for 
the charter service regulations. Under the new provision, the charter 
service regulations should not apply to a recipient transporting its 
own employees, other transit system employees, management officials, 
contractors and bidders, government officials and their contractors and 
official guests to or from transit facilities or projects within their 
geographic service area for the purpose of conducting oversight 
functions such as inspection, evaluation, or review.
    During the discussions on this issue, members of the CBNRAC noted 
that movement of transit employees or officials for transit purposes is 
simply not charter service. Further, as discussed in greater detail in 
the next section, under the new definition of charter, movement of 
transit employees from one work station to another is also not charter 
service. The CBNRAC also reached consensus on the following 
applicability provisions:
    (a) The charter service regulations would not apply to a recipient 
that transports its employees, or other transit system employees or 
officials for

[[Page 7534]]

emergency preparedness planning and operations.
    (b) The charter service regulations would not apply to recipients 
of 49 U.S.C. 5310, 5316, or 5317 funds, when used for program purposes.
    (c) The charter service regulations would not apply in the case of 
local, regional, or national emergencies lasting fewer than three days. 
Otherwise, the recipient would have to follow the provisions of 49 CFR 
part 601 subpart D.
    (d) The charter service regulations would not apply to a non-
urbanized area transporting its employees outside of its geographic 
service area for training purposes.
    The CBNRAC could not reach consensus on whether the charter service 
regulations apply to private charter operators receiving funds, 
directly or indirectly, from programs under 49 U.S.C. 5307, 5309, 5310, 
5311, 5316, 5317 or section 3038 of the Transportation Equity Act for 
the 21st Century. The private charter caucus requested this provision 
because it believes that the receipt of Federal funds should not hinder 
the private charter operator's ability to conduct its business. The 
public transit caucus asserted that private charter operators receiving 
Federal funds should be subject to the same limitations as public 
transit agencies.
    We propose to include this provision because the receipt of funds 
from the Federal government should not interfere with a private charter 
operator's business. This regulation has its genesis in the protection 
of the private charter operators from unfair competition by public 
transit agencies. To subject private charter operators to the charter 
service regulations undermines the very purpose of these regulations.

Issue 7: Review and Clarify, as Necessary the Definitions of 
Regulatory Terms

    One of the main points of contention for the CBNRAC was the 
definition of ``charter service'' and ``pattern of violations.'' For 
all other definitions, the CBNRAC was able to reach consensus. 
Additionally, since the conclusion of the negotiations, we decided that 
definitions of ``qualified human service organization'' and ``charter 
service hours'' are necessary. Thus, what follows is a discussion of 
the negotiations regarding the definitions of charter service and 
pattern of violations. We also offer our proposed definitions of 
qualified human service organization, charter service hours, and 
special transportation.
(a) Definition of Charter Service
    CBNRAC was unable to come to an agreement on the definition of the 
term ``charter service.'' The controversy centered on a particular 
category of transportation service provided on an irregular basis for 
occasional local events such as golf tournaments, festivals, state 
fairs, July 4th celebrations, flower shows, home shows, and sporting 
events. The public transit caucus considers open-door bus service to 
these types of events to be public transportation that serves the 
community at large (by providing traffic mitigation and other public 
benefits) even though the transit agency may need to create new or 
modified routes on a temporary basis for the duration of the event in 
order to provide the service. The private charter caucus believes that 
such services constitute ``charter service'' because a third party 
event sponsor is usually involved through some type of contractual 
arrangement; a new, temporary route has to be created to transport 
people to and from the event (as opposed to published, regular transit 
routes); and because the service is not continuous, and lasts only for 
the duration of the event. Despite lengthy discussions and an exchange 
of various proposals between the two sides, these differences could not 
be resolved by the committee. We recommend that interested parties 
review the docket for the exact proposals offered by each caucus.
    In response to the discussions held by the CBNRAC, we propose a 
definition of charter service that recognizes concerns raised by each 
caucus and provides examples of what would be considered charter 
service. In providing this definition of charter service, we note that 
the term ``buses'' includes rubber-tire replica trolleys.
    First, the caucuses were able to agree, although they did not reach 
consensus, on the proposition that charter service has three 
components: The transportation of a group of persons pursuant to a 
single contract with a third party; a fixed charge; and an itinerary 
determined by someone other than the public transit agency. The CBNRAC 
agreed that these three elements would have to be present in order for 
a particular service to be considered charter service.
    Second, members of the CBNRAC felt it was important to provide 
examples of what is and is not charter service. Thus, we propose a 
definition that includes three examples of charter service: (1) Use of 
buses or vans to transport school students, school personnel or school 
equipment; (2) shuttle service to events that occur on an irregular 
basis or for limited duration; or (3) shuttle services limited to a 
group of individuals pursuant to a contract with an institution, 
university, corporation or government.
    We also include in the definition examples of what is not charter 
service. Specifically, we propose that the following do not constitute 
charter service: (1) Adding equipment or days to an existing route; (2) 
extending service hours on an existing route; (3) demand-responsive 
service that is part of coordinated public transit human service 
transportation; and (4) new or modified service that is open to the 
public, where the recipient establishes and controls the route and the 
service continues from year to year.
    In an effort to provide further clarification of what service would 
be considered charter service or public transportation, FTA will 
publish an Appendix C with the final rule that contains more examples 
and frequently asked questions. We would appreciate comments with 
questions that should be included in Appendix C.
(b) Definition of Pattern of Violations
    The CBNRAC did not reach agreement on the definition of ``pattern 
of violations.'' Some participants advocated that the term should mean 
``more than on