Final Policy Statement on FTA's School Bus Operations Regulations, 53384-53390 [E8-21601]
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53384
Federal Register / Vol. 73, No. 180 / Tuesday, September 16, 2008 / Rules and Regulations
occurred, and avoided it by taking steps
within his/her control which would not have
risked causing another kind of mishap, the
accident was preventable.’’ (Emphasis
added.)
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The intent of the safety permit
program is to hold motor carriers that
transport permitted materials to a higher
safety standard due to the potential risks
associated with transportation of these
high-risk hazardous materials. In
applying this standard to the safety
fitness rating process, FMCSA
recognizes that crashes in which the
motor carrier’s driver was not at fault
and could not have reasonably avoided
without further risk, should not
adversely reflect on the safety fitness of
the motor carrier. Similarly, denial of a
safety permit based upon crashes which
were not preventable, does not have a
reasonable correlation to the safety
standard required under the safety
permit program.
In the safety rating context, FMCSA
considers preventability when the
carrier contests the evaluation of the
accident factor by presenting
compelling evidence that the recordable
rate is not a fair means of evaluating the
carrier’s fitness under the accident
factor. Similarly, FMCSA will consider
preventability of crashes under the
safety permit program. When a carrier
contests the denial of its safety permit
application based upon a crash rate that
falls into the top thirty percent of the
national average and submits
compelling evidence that a crash or
crashes listed in the MCMIS were not
preventable, it should not be included
in the crash rate calculation. The
preventability standard that will be
applied is the same standard that is
used in the safety rating context.
Preventability Policy Procedures
Accordingly, FMCSA is implementing
the following policy procedures: If a
motor carrier’s safety permit application
is denied based upon a crash rate greater
that the safety permit program crash rate
threshold, the carrier may submit
evidence to show that one or more
crashes were not preventable. In order
to preserve the right to seek
administrative review of FMCSA’s
determination on the preventability of
one or more crashes, the carrier should
submit such evidence as part of a
request for administrative review
pursuant to § 385.423(c). The carrier
should submit the request to FMCSA’s
Chief Safety Officer (CSO) and the
Office of Chief Counsel, and must
include adequate proof that the crash or
crashes in question were not
preventable. The standard for
determining preventability is the same
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as the standard found in Appendix A to
Part 385:
If a driver who exercises normal judgment
and foresight could have foreseen the
possibility of the accident that in fact
occurred, and avoided it by taking steps
within his/her control which would not have
risked causing another kind of mishap, the
accident was preventable.
It is incumbent upon the carrier to
provide reliable and objective evidence
that the accident was not preventable.
Such evidence may include but is not
limited to police reports and other
verifiable government reports or law
enforcement and witness statements.
The issue of whether a crash was or was
not preventable under the above-stated
standard will be initially addressed by
the FMCSA Office of Enforcement and
Compliance, Hazardous Materials
Division in consultation with the Office
of Chief Counsel, Enforcement and
Litigation Division. If the initial
determination results in a finding that
one or more crashes were not
preventable, the safety permit
application will be reprocessed with the
relevant crash or crashes removed from
consideration in the crash rate
calculation. If removal of the crash(es)
results in a crash rate calculation that
falls below the crash rate cut-off for the
top 30 percent of the national average
and no other disqualifying factors exist,
FMCSA will issue a safety permit to the
carrier. If the Office of Enforcement and
the Office of Chief Counsel determine
that the evidence submitted does not
support a finding that the crash or
crashes were preventable, the motor
carrier may pursue its request for
administrative review by the Chief
Safety Officer of the denial of its safety
permit application based upon its crash
rate. The request for administrative
review must have been timely filed and
served in accordance with the
requirements of 49 CFR 385.423.
Issued on: September 10, 2008.
John H. Hill,
Administrator.
[FR Doc. E8–21563 Filed 9–15–08; 8:45 am]
BILLING CODE 4910–EX–P
DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
49 CFR Part 605
[Docket No. FTA–2008–0015]
Final Policy Statement on FTA’s
School Bus Operations Regulations
Federal Transit Administration
(FTA), DOT.
AGENCY:
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ACTION:
Final policy statement.
SUMMARY: Through this notice, the
Federal Transit Administration (FTA)
clarifies its policy with respect to its
interpretation of ‘‘tripper service’’ and
‘‘school bus operations’’ under 49 CFR
part 605.
DATE: Effective Date: The effective date
of this final policy statement is
September 16, 2008.
ADDRESSES: Availability of the Final
Policy Statement and Comments: One
may access this final policy statement,
the proposed policy statement, and
public comments on the proposed
policy statement at docket number
FTA–2008–0015. For access to the
docket, please visit https://
www.regulations.gov or the Docket
Operations office located in the West
Building of the U.S. Department of
Transportation, Room W12–140, 1200
New Jersey Avenue, SE., Washington,
DC 20590, between 9 a.m. and 5 p.m.,
Monday through Friday, except Federal
holidays.
FOR FURTHER INFORMATION CONTACT:
Michael L. Culotta, Attorney, Office of
Chief Counsel, Federal Transit
Administration, U.S. Department of
Transportation, 1200 New Jersey
Avenue, SE., 5th Floor—East Building,
Washington, DC 20590. E-mail:
Michael.Culotta@dot.gov. Telephone:
(202) 366–1936.
SUPPLEMENTARY INFORMATION:
I. Background
A. Introduction
On May 19, 2008, FTA issued a
Notice of Proposed Policy Statement on
FTA’s School Bus Operations
Regulations 1 to provide guidance in the
context of the recent decision of the
United States District Court for the
Western District of New York in
Rochester-Genesee Regional
Transportation Authority v. HynesCherin.2 As of August 6, 2008, FTA
received approximately 510 comments
on its proposed policy statement.
In the final policy set forth below,
FTA clarifies its guidance regarding
FTA’s interpretation of its school bus
operations regulations. FTA shall
construe the term ‘‘tripper service,’’ as
it has historically, to include
modifications to fare collection or
subsidy systems, modifications to the
frequency of service, and de minimus
route alterations from route paths in the
immediate vicinity of schools to stops
1 73
FR 28,790 (May 19, 2008).
F.Supp.2d 494, 507 (W.D.N.Y. 2008) (setting
aside FTA’s interpretation of its school bus
operations regulations under 49 CFR part 605).
2 531
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located at or in close proximity to the
schools. Consistent with that
construction, FTA shall interpret the
definition of ‘‘school bus operations’’ to
include service that a reasonable person
would conclude was primarily designed
to accommodate students and school
personnel and only incidentally to serve
the nonstudent general public.
FTA stresses that its intent with this
final policy is not to overhaul its school
bus operations regulatory scheme.
Rather, in the context of RochesterGenesee Regional Transportation
Authority, FTA intends to provide its
grantees a basis which will allow them
to continue to provide the service that
FTA historically has allowed through
administrative adjudications, while
simultaneously satisfying the statutory
requirements.
FTA acknowledges that the 2008–
2009 academic year has commenced.
However, because FTA is not
overhauling its regulatory scheme and is
continuing to allow the type of tripper
service that it historically has allowed,
this final policy will not negatively
impact transportation for the 2008–2009
academic year if grantees have been
complying with FTA’s historical
interpretation of its school bus
operations regulations.
FTA expects to issue expeditiously a
notice of proposed rulemaking to
provide clearer definitions of ‘‘tripper
service’’ and ‘‘school bus operations,’’ as
well as generally to update the existing
school bus regulation.
B. Statutory and Regulatory Framework
In 1973, Congress passed the FederalAid Highway Act, which requires FTA
to provide financial assistance to a
grantee under 49 U.S.C. Chapter 53 only
if the grantee agrees ‘‘not to provide
school bus transportation that
exclusively transports students and
school personnel in competition with a
private school bus operator.’’ 3 Congress’
intent in enacting this provision was to
prevent unfair competition between
Federally funded public transportation
systems and private school bus
operators.4
In 1976, the Urban Mass
Transportation Administration, now
FTA, codified regulations under 49 CFR
part 605 which implemented the above
statutory provision.5 Under 49 CFR
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3 Federal
Aid Highway Act of 1973, Pub. L. No.
93–87, 164(b), 87 Stat. 250, 281–82 (1973) (codified
as amended at 49 U.S.C. 5323(f) (2006)).
4 Chicago Transit Auth. v. Adams, 607 F.2d 1284,
1292–93 (7th Cir. 1979) (citing H.R. Rep. No. 93–
410, at 87 (1973) (Conf. Rep.); S. Rep. No. 93–355,
at 87 (1973) (Conf. Rep.)).
5 See Codification of Charter Bus Operations
Regulations, 41 FR 14,122 (Apr. 1, 1976).
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605.14, FTA may not provide financial
assistance to a grantee ‘‘unless the
applicant and the Administrator shall
have first entered into a written
agreement that the applicant will not
engage in school bus operations
exclusively for the transportation of
students and school personnel in
competition with private school bus
operators.’’ 6 The regulation defines
‘‘school bus operations’’ as
‘‘transportation by bus exclusively for
school students, personnel and
equipment * * * .’’ 7
The regulation exempts ‘‘tripper
service’’ from the prohibition against
school bus operations.8 ‘‘Tripper
service’’ is ‘‘regularly scheduled mass
transportation service which is open to
the public, and which is designed or
modified to accommodate the needs of
school students and personnel, using
various fare collections or subsidy
systems.’’ 9
States ex rel. Lamers v. City of Green
Bay for the proposition that a grantee
may ‘‘completely redesign its transit
system to accommodate school children
as long as all routes are accessible to the
public and the public is kept informed
of route changes.’’ 15
FTA believes that, following the
Court’s narrow interpretation of ‘‘school
bus operations’’ and its broad
interpretation of ‘‘tripper service,’’ a
grantee could conclude that it would be
permitted to restructure its public
transportation operation dramatically to
accommodate the needs of a local
school district and its students, thereby
displacing private school bus operators
and their employees, provided the
grantee keeps the service technically
open to the public.16 FTA believes that
such an interpretation would contradict
FTA’s final policy as set forth herein.
II. Rochester-Genesee Regional
Transportation Authority v. HynesCherin
On January 24, 2008, the United
States District Court for the Western
District of New York issued a decision
in Rochester-Genesee Regional
Transportation Authority which set
aside FTA’s interpretation of its school
bus operations regulations under 49
CFR part 605.10 The Court allowed the
Rochester-Genesee Regional
Transportation Authority (RGRTA) to
restructure its public transportation
operation through the addition of 240
new express school bus routes proposed
to serve the Rochester City School
District (RCSD) and its students.11
In its decision, the Court narrowly
interpreted the word ‘‘exclusively’’ in
FTA’s definition of ‘‘school bus
operations’’ and found that, because a
member of the general public could,
hypothetically, board a bus along one of
RGRTA’s proposed new 240 express
routes, RGRTA’s service technically
would not ‘‘exclusively’’ transport
students.12 The Court therefore
concluded that RGRTA’s proposed
express bus service did not constitute
impermissible school bus operations.13
Additionally, the Court broadly
interpreted FTA’s definition of ‘‘tripper
service.’’ 14 The Court cited United
A. Tripper Service
Under its tripper service definition,
FTA originally allowed grantees to
accommodate students only with
respect to ‘‘different fare collections and
subsidy systems.’’ However, through
administrative decisions over the years,
FTA broadened its interpretation of its
tripper service definition to allow
grantees to make accommodations
beyond subsidies and fare collection
systems. Specifically, FTA has allowed
its grantees to make minor
modifications to its route paths and
frequency of service. As FTA stated in
one matter concerning the Erie
Metropolitan Transit Authority:
6 49
CFR 605.14 (2007).
CFR 605.3(b).
8 49 CFR 605.13.
9 49 CFR 605.3(b).
10 Rochester-Genesee Reg’l Transp. Auth., 531
F.Supp.2d at 507.
11 Id. at 507–16.
12 Id. at 507–09.
13 Id.
14 Id. at 512.
7 49
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III. Previous FTA Policy
Read narrowly, ‘‘modification of regularly
scheduled mass transportation service to
accommodate the needs of school students
and personnel’’ means using different fare
collections and subsidy systems. In practice,
‘‘modification of mass transportation service’’
has been broadened to include minor
modifications in route or frequency of
scheduling to accommodate the extra
passengers that may be expected to use
particular routes at particular times of day.17
For example, in Travelways, Inc. v.
Broome County Department of
Transportation, FTA stated that, ‘‘A
familiar type of modification would be
where the route deviates from its regular
path and makes a loop to a school
returning back to the point of deviation
to complete the path unaltered.’’ 18 FTA
15 Id. at 512 (citing United States ex rel. Lamers
v. City of Green Bay, 168 F.3d 1013, 1019 (7th Cir.
1999)).
16 Id. at 509–16.
17 See In re Erie Metropolitan Transit Authority
1, 4 (1989).
18 Travelways, Inc. v. Broome County Dep’t of
Transp. 1, 7 (1985) (allowing a grantee to run a bus
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reaffirmed this particular interpretation
of tripper service in its October 12,
2007, RGRTA determination by
permitting RGRTA to operate four looplike route extensions, each only several
blocks in length, to accommodate the
needs of school students.19
FTA has not, however, allowed a
grantee such as RGRTA to restructure its
public transportation operation solely to
accommodate the needs of school
students—such a modification would be
a major modification. Thus, in its
October 12, 2007 letter to RGRTA, FTA
rejected RGRTA’s proposed addition of
240 new routes because it would have
constituted a major overhaul of
RGRTA’s public transportation system
exclusively for the purpose of
accommodating the needs of school
students.20
In addition to minor modifications to
route paths, FTA has allowed grantees
to modify route schedules and the
frequency of service. For example, in
Travelways, FTA stated, ‘‘Other
common modifications include
operating the service only during school
months, on school days, and during
school and opening and closing
periods.’’ 21
Jurisprudence in United States courts
has broadened the scope of FTA’s
tripper service definition to include
essentially any modification. In United
States ex rel. Lamers v. City of Green
Bay, the Seventh Circuit stated, arguably
in dicta, ‘‘[T]he City may completely
redesign its transit system to
accommodate school children as long as
all routes are accessible to the public
and the public is kept informed of route
changes.’’ 22 Citing Lamers, the Court in
Rochester-Genesee Regional
Transportation Authority allowed
RGRTA to restructure its public
transportation system by adding 240
new routes to accommodate the needs of
RCSD and its students.23
B. ‘‘Exclusive’’ School Bus Operations
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FTA has had little prior formal policy
regarding ‘‘exclusive’’ school bus
operations under 49 CFR part 605. In
1982, FTA attempted to clarify the
meaning of ‘‘exclusive’’ school bus
to a point and express to a school from that point
if the grantee ran a second bus along the regular
route path from the point at which the first bus
expressed to the school).
19 Letter from Federal Transit Administration to
Rochester-Genesee Regional Transportation
Authority at 6 (Oct. 12, 2007).
20 Id. at 2–6.
21 Travelways at 7.
22 United States ex rel. Lamers v. City of Green
Bay, 168 F.3d 1013, 1019 (7th Cir. 1999).
23 Rochester-Genesee Reg’l Transp. Auth., 531
F.Supp.2d at 512–13.
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service through a rulemaking.24
However, in 1990, FTA withdrew the
rulemaking because it believed that the
regulations were ‘‘functioning
adequately.’’ 25
In school bus adjudications, parties
did not directly address the issue of
‘‘exclusive’’ school bus operations until
United Food and Commercial Workers
District Union Local One v. RochesterGenesee Regional Transportation
Authority.26 In resolving that issue, FTA
examined the Federal-Aid Highway Act
of 1973, found the language of the Act’s
school bus provision ambiguous, and
looked to the legislative history of Act
for some guidance.
In an early version of the Federal-Aid
Highway Act, Congress did not use the
word ‘‘exclusively’’ in the school bus
provision, but rather, focused the
language of the Act on preventing unfair
competition between Federally funded
grantees and private school bus
operators. That language is as follows:
[N]o financial assistance is to be provided
to an applicant which engages, directly or
indirectly in transporting school children
and personnel to and from school and school
authorized functions or which proposes to
expand present routes, schedules, or facilities
for that purpose in competition with or
supplementary to service criteria provided by
a private transportation company or other
person so engaged in so transporting such
children and personnel.27
After the bill passed the House and
the Senate, the conference modified the
above provision in an effort to further
protect private school bus operators
from unfair competition with Federally
funded grantees. The conferees used the
following language:
[N]o federal financial assistance is to be
provided under those provisions of law for
the purchase of buses to any applicant who
has not first entered into an agreement with
the Secretary of Transportation that the
applicant will not engage in school bus
operations in competition with private school
bus operators.28
As evinced by the above language,
Congress intended to prevent unfair
competition between Federally funded
grantees and private school bus
operators. Therefore, in District Union
Local One, FTA concluded that it would
defeat the purpose of the Federal-Aid
Highway Act and eviscerate 49 U.S.C.
5323(f) if it accepted a grantee’s
24 Advance Notice of Proposed Rulemaking, 47
FR 44,795, 44,803–04 (Oct. 12, 1982).
25 Notice of Proposed Rulemaking: Withdrawal,
55 FR 334 (Jan. 4, 1990).
26 FTA School Bus Docket Number 2006–02 1
(2007).
27 S. Rep. No. 93–355, at 86 (1973) (emphasis
added).
28 S. Rep. No. 93–355, at 87 (emphasis added).
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argument that its service was
technically nonexclusive and open to
the public, but where: (1) The grantee
had designed the service specifically for
students, without regard to demand
from the nonstudent public; (2) the vast
majority of passengers were students;
and (3) as a result, the routes would
displace the private school bus industry
and its workers.29 In efforts to prevent
the unfair competition which Congress
sought to prevent, FTA rejected
RGRTA’s arguments and prohibited
RGRTA from providing its school bus
service exclusively for school students.
FTA utilized this same policy and
analysis when it found non-compliant
RGRTA’s proposed service in its
October 12, 2007 letter 30 and again in
Laidlaw Transit, Inc. v. RochesterGenesee Regional Transportation
Authority.31
The Court in Rochester-Genesee
Regional Transportation Authority,
however, applied a narrower, more
restrictive analysis when it interpreted
the word ‘‘exclusively’’ in the context of
‘‘school bus operations.’’
Notwithstanding the fact that RGRTA
designed its 240 express school bus
routes exclusively for the benefit of
RCSD and its students, without regard
for demand from the nonstudent public,
the Court held that, because a member
of the general public hypothetically
could board a bus along one of RGRTA’s
proposed 240 routes, RGRTA’s proposed
service was not ‘‘exclusive’’ and
therefore technically did not constitute
impermissible ‘‘school bus
operations.’’ 32
III. Response to Public Comments
As of August 6, 2008, approximately
510 parties commented on FTA’s Notice
of Proposed Policy Statement on FTA’s
School Bus Operations Regulations. At
the closing date of the docket, June 18,
2008, approximately 157 parties
commented on FTA’s proposed policy
statement. FTA subsequently
considered all additional comments
through August 6, 2008. The
29 District Union Local One, FTA School Bus
Docket Number 2006–02 at 10–11 (holding the
Rochester-Genesee Regional Transportation
Authority’s (RGRTA) school bus service was
designed and modified ‘‘exclusively’’ for the
Rochester City School District and its students
because students constituted a significant
proportion of passengers on the school bus routes
and RGRTA designed the routes without regard to
demand from the nonstudent public).
30 See Letter from Federal Transit Administration
to Rochester-Genesee Regional Transportation
Authority at 3–4 (Oct. 12, 2007).
31 See Laidlaw Transit, Inc. v. Rochester-Genesee
Reg’l Transp. Auth., FTA School Bus Docket
Number 2007–01 1, 4 (2007).
32 Rochester-Genesee Reg’l Transp. Auth., 531
F.Supp.2d at 507–09.
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commenters represent a broad spectrum
of stakeholders from geographic areas
throughout the United States, and they
provided comments on a wide variety of
issues. Many commenters raised issues
that are outside the scope of FTA’s
proposed policy statement, and FTA
does not address those concerns in this
final policy statement.
In this section, FTA responds to
public comments by topic in the
following order: (A) Policy Statement
Generally; (B) ‘‘School Bus Operations’’;
(C) ‘‘Tripper Service’’; (D) Unfair
Competition; (E) Economic Issues; (F)
Safety Issues; (G) Environmental Issues;
(H) Congestion; (I) Rising Fuel Prices; (J)
Local Issues; and (K) Alternative Policy
Proposals and Amendments to 49 CFR
part 605.
A. Policy Statement Generally
Some commenters questioned
whether FTA has the legal authority to
issue this Final Policy Statement on
FTA’s School Bus Operations
Regulations. These commenters
questioned whether FTA should
promulgate amended regulations rather
than issue a policy statement.
FTA Response: FTA concludes that it
is not required to promulgate amended
regulations to implement this final
policy because FTA is not changing the
language of the regulatory text at 49 CFR
part 605. FTA merely is clarifying its
interpretation of that regulatory
language, and FTA lawfully may
accomplish this clarification through a
policy statement. Furthermore, FTA is
not altering the substance of its
regulatory requirements under 49 CFR
part 605; FTA merely is summarizing
thirty-two years of its policy in one
document, based on public comments
and FTA’s historical interpretation and
enforcement of its school bus operations
regulations. Indeed, many commenters
applauded FTA’s efforts to issue a
policy statement to provide guidance in
the context of Rochester-Genesee
Regional Transportation Authority.
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B. ‘‘School Bus Operations’’
Some commenters asserted that the
word ‘‘exclusively,’’ as used in 49 U.S.C.
5323(f) and in FTA’s definition of
‘‘school bus operations’’ at 49 CFR
605.3, is not ambiguous and, therefore,
FTA must implement a regulatory
scheme that allows FTA’s grantees to
transport students and school personnel
so long as the service is technically
open to the public.
Additionally, some commenters
asserted that FTA’s use of a ‘‘reasonable
person’’ standard in its interpretation of
‘‘school bus operations’’ is vague.
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Finally, at least one commenter
expressed concern regarding whether
and to what extent, under FTA’s
proposed policy, a grantee may create a
new route to serve a school—
particularly in communities
experiencing population growth and
development.
FTA Response: FTA rejects the notion
that 49 U.S.C. 5323(f) is unambiguous.
FTA believes that one may reasonably
interpret the term ‘‘exclusively’’ in 49
U.S.C. 5323(f) and 49 CFR 605.3 to
prohibit service that essentially is
exclusively for students and school
personnel, even though the service
technically may be open to the
nonstudent public. The relevant
language of the regulation prohibits
service that is ‘‘exclusively for’’ students
and school personnel. FTA
consequently concludes that it is
reasonable and proper to consider
whether service is, in fact, ‘‘for’’ such
riders. FTA also relies heavily on the
subsequent qualifying language of 49
U.S.C. 5323(f)—‘‘in competition with a
private schoolbus operator’’—to justify
this interpretation. To illustrate, if FTA
permitted a grantee to provide school
bus operations so long as the service is
technically open to the public, then
Congress’s purpose of protecting private
school bus operators would be nullified.
Such an interpretation would create a
loophole in the statutory and regulatory
scheme which would permit FTA’s
grantees to displace private school bus
operators. Clearly, Congress did not
intend this result, otherwise, Congress
would not have passed this statutory
provision. Accordingly, in this final
policy statement, FTA relies on an
interpretation of 49 U.S.C. 5323(f)
which reasonably ensures that FTA’s
grantees that transport school students
are not providing school bus operations
that are exclusive-in-fact.
With respect to the ‘‘reasonable
person’’ standard, FTA points out that
the standard has nearly a two hundred
year history in the common law, and
therefore, the standard is an acceptable
standard in FTA’s interpretation of its
school bus operations regulations.33
Courts have held that the reasonable
person standard is an objective
standard, and that a ‘‘reasonable
person’’ is a person: (1) Of ordinary
prudence, (2) who has knowledge of the
law and is aware of its consequences,
and (3) who exercises caution in similar
circumstances.34
C. ‘‘Tripper Service’’
With respect to FTA’s interpretation
of its ‘‘tripper service’’ definition at 49
CFR 605.3, some commenters requested
clarification as to what constitutes a ‘‘de
minimus’’ route deviation. Additionally,
some commenters recommended that
FTA should allow route deviations at
multiple points along a route path—not
just within the immediate vicinity of a
school.
FTA Response: FTA intends a ‘‘de
minimus’’ route deviation, as FTA uses
the term in this final policy statement,
to mean a route alteration that is truly
minor. For example, historically, FTA
has allowed its grantees to provide
tripper service that deviates from an
existing route path by several blocks.35
FTA intends to identify definitively a
specific threshold for determining
whether an alteration is ‘‘de minimus’’
in its forthcoming notice of proposed
rulemaking.
With respect to the locations of the
route alterations, FTA stresses that it
does not intend to significantly alter the
type of service that it historically has
allowed. In the past, FTA has allowed
route alterations only within the
immediate vicinities of schools, and
FTA does not intend to break from that
precedent in this final policy statement.
33 See Vaughan v. Menlove, (1837) 132 Eng. Rep.
490, and its progeny.
34 See William L. Prosser & W. Page Keeton,
Prosser and Keeton on Torts 173–93 (5th ed. 1984).
35 See, e.g., Travelways, Inc. at 7; Letter from
Federal Transit Administration to RochesterGenesee Regional Transportation Authority, supra
note 20, at 6.
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Finally, FTA does not intend to
discourage grantees from creating new
routes to serve new demand, so long as
a reasonable person would conclude
that the grantees designed the routes to
serve some segment of the nonstudent
general public. Therefore, in the final
policy set forth below, FTA will
interpret its definition of ‘‘school bus
operations’’ to allow a grantee to create
a new route to serve school students and
personnel if a reasonable person would
conclude that the grantee designed the
route to serve some segment of the
nonstudent general public.
D. Unfair Competition
Many commenters representing the
interests of private school bus operators
expressed support for FTA’s proposed
policy because the policy effectuates
Congress’s intent that Federally
subsidized grantees do not displace
private school bus operators. However,
many commenters expressed concern
that FTA’s proposed policy would
interfere with local transit agencies that
transport students to school out of
necessity, either because there are no
private operators that provide the
service in the local area or that private
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operators charge an unreasonably high
rate in exchange for its service.
FTA Response: In localities where no
private operator exists or where a
private operator charges an
unreasonably high rate in exchange for
service, FTA highlights an existing
exemption for its school bus operations
prohibition at 49 CFR 605.11(b). Under
this provision, FTA allows its grantees
to provide school bus operations if, in
the local area, a private school bus
operator is ‘‘unable to provide adequate
transportation, at a reasonable rate, and
in conformance with applicable safety
standards.’’ 36 FTA’s final policy does
not affect this exemption, and FTA
suggests that interested parties apply to
FTA for this exemption, if appropriate.
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E. Economic Issues
Some commenters expressed
economic concerns with respect to
FTA’s proposed policy. These
commenters questioned the propriety of
FTA’s proposed policy, considering that
many school districts have limited
financial resources and a variety of
educational needs. Additionally, some
commenters proffered that private
school bus operators are more expensive
than Federally subsidized public
transportation.
FTA Response: Congress, by passing
the statutory provision now codified at
49 U.S.C. 5323(f), already has spoken to
this issue and has decided that it is
concerned with preventing unfair
competition between Federally
subsidized grantees and private school
bus operators. Under 49 U.S.C. 5323(f),
FTA may provide financial assistance to
a grantee only if the grantee agrees ‘‘not
to provide schoolbus transportation that
exclusively transports students and
school personnel in competition with a
private schoolbus operator.’’ 37 In its
regulations, guidance, and this final
policy statement, FTA intends to
implement this statutory provision to
effectuate Congress’s intent to prevent
unfair competition between Federally
subsidized grantees and private school
bus operators.
Moreover, some commenters
suggested that taxpayers ultimately
spend much more in tax dollars on
public transit service for students rather
than on private school bus operators.38
For example, they estimate that the base
cost of a transit bus is between $300,000
and $500,000, while they estimate that
the base cost of a private school bus is
36 49
CFR 605.11(b).
37 49 U.S.C. 5323(f).
38 See Comment Number FTA–2008–0015–0184.1
(June 19, 2008).
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between $46,000 and $68,000.39 These
commenters also claim that the
maintenance cost per mile for a transit
bus is approximately $0.80 to $1.00,
while they claim that the maintenance
cost per mile for a private school bus is
$0.34.40 They therefore argue that, while
a school district’s direct payments to a
federally subsidized public transit
authority may be lower than payments
to a private school bus operator, the
total cost to the taxpayer may be much
higher for federally subsidized transit
service than for private school bus
service. FTA lacks sufficient
information to analyze this argument
fully, but it will seek additional
information and comment in connection
with FTA’s forthcoming notice of
proposed rulemaking.
F. Safety Issues
Many commenters expressed concern
that FTA, through its proposed policy,
would create a more hazardous
environment for school students
commuting to school. Specifically, these
commenters, with the notion that FTA
intends to limit allowable service under
its ‘‘tripper service’’ definition, suggest
that FTA’s proposed policy would result
in more students walking, biking, and
driving across busy roads while
traveling to school. Some commenters
raised a similar safety concern and
believe that, with limitations on
‘‘tripper service,’’ FTA’s proposed
policy will result in less direct routes
and increased transfers for students
traveling to school. Consequently, these
commenters write, FTA’s proposed
policy will cause school students to
congregate at transfer points, which will
lead to increased crime around these
transfer points.
Many commenters also expressed
concerns regarding the safety of private
school buses. These commenters
asserted that public buses are safer than
private buses. Alternatively, many
commenters asserted that private buses,
which are subject to stringent safety
standards imposed by the National
Highway Traffic Safety Administration
(NHTSA), are safer than public buses.
For example, these commenters noted
that NHTSA requires school buses to be
equipped with warning lights,
additional mirrors for drivers, ‘‘stop
arms,’’ and rollover protection.
Additionally, these commenters assert,
that on public buses, school students
may be exposed to any number of
39 Id. (noting that the useful life of a transit bus
is approximately 12 to 15 years, while the useful
life of a private school bus is comparable—
approximately 12 years).
40 Id.
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Fmt 4700
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unknown influences, such as
pedophiles and child molesters.
FTA Response: Congress, by passing
the statutory provision now codified at
49 U.S.C. 5323(f), already has spoken to
this issue and has decided that it is
concerned with preventing unfair
competition between Federally
subsidized grantees and private school
bus operators. Under 49 U.S.C. 5323(f),
FTA may provide financial assistance to
a grantee only if the grantee agrees ‘‘not
to provide schoolbus transportation that
exclusively transports students and
school personnel in competition with a
private schoolbus operator.’’ 41 In its
regulations, guidance, and this final
policy statement, FTA intends to
implement this statutory provision to
effectuate Congress’s intent to prevent
unfair competition between Federally
subsidized grantees and private school
bus operators.
Moreover, some commenters
misconstrued FTA’s intent. FTA did not
propose to eliminate transit service that
historically has qualified as tripper
service. Therefore, FTA believes that its
final policy will not result in the abovementioned increased safety hazards.
With respect to the safety of public
buses versus private buses, FTA
recognizes that, most notably, private
school buses are subject to stringent
safety standards promulgated by
NHTSA.42 For example, NHTSA
imposes on school bus manufacturers
restrictions regarding rear view mirrors,
safety lights, ‘‘stop signal arms,’’
rollover protection, body joint strength,
passenger seating, and crash
protection.43 Accordingly, FTA does not
believe that private school buses afford
an inherently unsafe means of school
transportation.
G. Environmental Issues
Many commenters asserted that FTA’s
proposal would result in the elimination
of numerous transit routes. These
commenters asserted that, with fewer
transit routes available to students, more
students would drive vehicles to school.
The affect, these commenters argued,
would be greater harm to the
environment.
Some commenters also argued that
public buses are more fuel-efficient than
private buses. Alternatively, many
commenters asserted that private buses
are more fuel-efficient than public
buses. One commenter provided
evidence that the average fuel miles per
gallon for transit buses is 4.5, while the
41 49
U.S.C. 5323(f).
e.g., Federal Motor Vehicle Safety
Standards, 49 CFR Part 571 (2007).
43 49 CFR Part 571.
42 See,
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average fuel miles per gallon for private
school buses is 6.5.44 Scores of
commenters asserted that private school
bus service is approximately 40% more
fuel-efficient than public bus service.45
FTA Response: Congress, by passing
the statutory provision now codified at
49 U.S.C. 5323(f), already has spoken to
this issue and has decided that it is
concerned with preventing unfair
competition between Federally
subsidized grantees and private school
bus operators. Under 49 U.S.C. 5323(f),
FTA may provide financial assistance to
a grantee only if the grantee agrees ‘‘not
to provide schoolbus transportation that
exclusively transports students and
school personnel in competition with a
private schoolbus operator.’’ 46 In its
regulations, guidance, and this final
policy statement, FTA intends to
implement this statutory provision to
effectuate Congress’s intent to prevent
unfair competition between Federally
subsidized grantees and private school
bus operators. Moreover, these concerns
are based on the misperception that
FTA’s proposed policy would prohibit
tripper service that FTA historically has
permitted.
In response to specific concerns
regarding environmental harm and fuelefficiency concerns, FTA concludes that
there is no reliable method to determine
the effect of its school bus operations
policy on the environment. There are
numerous factors that will vary from
locality to locality, such as, (1) the
number of additional vehicles utilized
as a direct result of FTA’s school bus
operations policy, (2) the fuel emissions
of those vehicles, and (3) the
manufacturing date of those vehicles.
FTA notes that no commenter provided
evidence that FTA’s proposed policy
would result in greater harm to the
environment.
FTA does not anticipate that its
school bus operations policy will have
a significant environmental impact, and,
thus, FTA does not believe that this
final policy requires additional
approvals under the National
Environmental Policy Act.47
H. Congestion
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Many commenters asserted that FTA
proposes to eliminate numerous transit
routes. These commenters alleged that,
with less transit routes available to
students, more students would drive
vehicles to school. The affect, these
44 See Comment Number FTA–2008–0015–0184.1
(June 19, 2008).
45 See, e.g., Comment Number FTA–2008–0015–
0242.1 (July 25, 2008).
46 49 U.S.C. 5323(f).
47 See 23 CFR 771.117(c)(20) (2008).
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14:22 Sep 15, 2008
Jkt 214001
commenters argued, would be increased
congestion.
FTA Response: Congress, by passing
the statutory provision now codified at
49 U.S.C. 5323(f), already has spoken to
this issue and has decided that it is
concerned with preventing unfair
competition between Federally
subsidized grantees and private school
bus operators. Under 49 U.S.C. 5323(f),
FTA may provide financial assistance to
a grantee only if the grantee agrees ‘‘not
to provide schoolbus transportation that
exclusively transports students and
school personnel in competition with a
private schoolbus operator.’’ 48 In its
regulations, guidance, and this final
policy statement, FTA intends to
implement this statutory provision to
effectuate Congress’s intent to prevent
unfair competition between Federally
subsidized grantees and private school
bus operators.
Moreover, these concerns are based
on the misunderstanding that FTA’s
proposed policy would prohibit tripper
service that FTA historically has
permitted. In this final policy statement,
FTA does not propose to alter its
historical interpretation of ‘‘tripper
service’’ fundamentally, and therefore,
FTA does not believe that its final
policy will affect congestion.
I. Rising Fuel Prices
Some commenters expressed concern
about rising fuel prices and the effect
these prices will have on school
transportation.
FTA Response: Congress, by passing
the statutory provision now codified at
49 U.S.C. 5323(f), already has spoken to
this issue and has decided that it is
concerned with preventing unfair
competition between Federally
subsidized grantees and private school
bus operators. Under 49 U.S.C. 5323(f),
FTA may provide financial assistance to
a grantee only if the grantee agrees ‘‘not
to provide schoolbus transportation that
exclusively transports students and
school personnel in competition with a
private schoolbus operator.’’ 49 In its
regulations, guidance, and this final
policy statement, FTA intends to
implement this statutory provision to
effectuate Congress’s intent to prevent
unfair competition between Federally
subsidized grantees and private school
bus operators.
Moreover, these commenters did not
specify how rising fuel prices should
affect FTA’s final policy. Notably, rising
fuel prices affect both public transit
authorities and private school bus
operators in any given locality,
48 49
49 49
PO 00000
U.S.C. 5323(f).
U.S.C. 5323(f).
Frm 00035
Fmt 4700
Sfmt 4700
53389
therefore, FTA estimates that rising fuel
prices should affect school districts in a
similar manner, regardless of the type of
service that they use to transport
students. Without a more particularized
concern from these commentators, it is
difficult for FTA to speculate how rising
fuel prices should impact and factor
into FTA’s final policy.
J. Local Issues
Approximately 141 of the 510
commenters represent the Oakland,
California area, and these commenters
expressed concerns that FTA proposed
to eliminate transit service in that
region. Approximately 27 commenters
from Washington State expressed
similar concerns.
FTA Response: These comments are
unfounded: FTA did not propose to
eliminate any particular transit service
through its proposed policy statement,
and FTA does not propose to eliminate
any particular transit service through
this final policy statement. Moreover,
FTA’s final policy does not prohibit
transportation that historically has
qualified as tripper service. Therefore,
so long as public transit authorities in
these areas are complying with FTA’s
historical interpretation of its school bus
operations regulations, FTA’s final
policy should not interfere with the
transportation that these public transit
authorities provide.
K. Alternative Policy Proposals and
Amendments to 49 CFR Part 605
Some commenters offered alternative
policy proposals, including
amendments to 49 CFR part 605, for
FTA’s consideration. Specifically, some
commenters proposed that FTA require
an annual period of open bidding on
school transportation, with bid
submissions from interested parties
received in April and FTA selections,
based on quality and cost, in May.
Some commenters also proposed
additional exemptions under 49 CFR
part 605, such as exemptions for: (1)
Areas with populations of less than
200,000 persons; (2) transit agencies that
operate in communities without school
district transportation subsidies; (3)
grantees that provide service to school
districts that operate some service with
their own private fleets; and (4) routes
serving secondary schools.
Lastly, some commenters suggested
that FTA utilize a negotiated rulemaking
proceeding to formulate its forthcoming
proposed rule.
FTA Response: With respect to the
open bidding proposal, FTA believes
that such a proposal amounts to a new
regulatory scheme, which FTA cannot
appropriately adopt through a policy
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Federal Register / Vol. 73, No. 180 / Tuesday, September 16, 2008 / Rules and Regulations
statement. The proposal would require
an amendment to FTA’s school bus
operations regulations, not its
interpretation of those regulations, and
FTA would have to adopt such a
scheme through a rulemaking.
With respect to the proposed
exemptions, FTA believes that, if
adopted, these proposals would
constitute substantive changes to the
text of FTA’s school bus operations
regulations. FTA already lists a series of
allowable exemptions at 49 CFR 605.11.
Thus, FTA believes that it cannot
appropriately consider these
exemptions within the rubric of this
final policy statement.
Finally, FTA believes that the
comments suggesting a negotiated
rulemaking fall outside the scope of this
policy statement. FTA will
appropriately address any comments
regarding a notice of proposed
rulemaking in that forum.
IV. Final FTA Policy
A. Purpose of Final FTA Policy
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In the final policy set forth below,
FTA clarifies its guidance regarding
FTA’s interpretation of its school bus
operations regulations under 49 CFR
part 605 in light of the Court’s decision
in Rochester-Genesee Regional
Transportation Authority. FTA respects
the Court’s decision in the Western
District of New York. However, FTA
finds that the Court’s decision is
problematic because, if applied
elsewhere in the United States, it could
obstruct FTA’s ability to execute and
implement Congress’s school bus
prohibition and Congress’s express
intent regarding that prohibition.
Therefore, FTA issues this final policy
statement to clarify the status of FTA’s
guidance regarding its interpretation of
its school bus operations regulations
under 49 CFR part 605, and to resolve,
for jurisdictions outside of the Western
District of New York, conflicting issues
between FTA’s school bus operations
policy and the Court’s decision in
Rochester-Genesee Regional
Transportation Authority.
Additionally, FTA intends to issue
expeditiously a notice of proposed
rulemaking to provide clearer
definitions of ‘‘tripper service’’ and
‘‘school bus operations,’’ as well as
generally to update the existing school
bus regulation.
B. Tripper Service
With respect to a grantee’s regularly
scheduled public transportation service,
FTA shall interpret the definition of
‘‘tripper service’’ under 49 CFR 605.3(b),
as it historically has interpreted that
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14:22 Sep 15, 2008
Jkt 214001
definition, to allow a grantee to (1)
utilize ‘‘various fare collections or
subsidy systems,’’ (2) modify the
frequency of service, and (3) make de
minimis route alterations from route
paths in the immediate vicinity of
schools to stops located at or in close
proximity to the schools. For example,
a grantee may provide more frequent
service on an existing route to
accommodate increased student
ridership before and after school.
Furthermore, a grantee may alter route
paths to accommodate the needs of
school students by making de minimis
route alterations from route paths to
drop off and pick up students at stops
located on school grounds or in close
proximity to the schools.
FTA believes that this policy
regarding its interpretation of the
definition of ‘‘tripper service’’ is
consistent with both the statutory
language and the language of 49 CFR
605.3(b). This policy permits only the
type of design or modification
accommodations that FTA historically
has allowed and does not represent a
departure from FTA’s prior guidance on
this matter.
C. ‘‘Exclusive’’ School Bus Operations
To effectuate the intent of Congress
when it enacted its school bus
operations prohibition now codified at
49 U.S.C. 5323(f), FTA shall interpret
the term ‘‘exclusively’’ in the definition
of ‘‘school bus operations’’ under 49
CFR 605.3(b) to encompass any service
that a reasonable person would
conclude was primarily designed to
accommodate students and school
personnel, and only incidentally to
serve the nonstudent general public.
Additionally, grantees may create new
routes to serve school students and
personnel if a reasonable person would
conclude that the grantees designed the
routes to serve some segment of the
nonstudent general public.
FTA believes that maintaining this
interpretation of ‘‘exclusively’’ is
consistent with the legislative history on
the issue and would allow FTA
effectively to implement the express
intent of Congress, which is to prevent
unfair competition between Federally
funded grantees and private school bus
operators. This policy does not
represent a departure from FTA’s prior
guidance on this matter, and is merely
intended to provide FTA with
additional flexibility when interpreting
49 U.S.C. 5323(f) and 49 CFR 605.3(b)
and effectuating the intent of Congress.
PO 00000
Frm 00036
Fmt 4700
Sfmt 4700
Issued in Washington, DC on this 11th day
of September 2008.
James S. Simpson,
Administrator.
[FR Doc. E8–21601 Filed 9–15–08; 8:45 am]
BILLING CODE 4910–57–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 679
[Docket No. 080225265–81165–02]
RIN 0648–AW28
Fisheries of the Exclusive Economic
Zone Off Alaska; Recordkeeping and
Reporting
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
AGENCY:
SUMMARY: NMFS issues regulations to
exempt groundfish catcher/processors
and motherships equipped with an
operational vessel monitoring system
transmitter from check–in/check–out
requirements. This action reduces
paperwork requirements for certain
catcher/processors and motherships and
changes the definitions for ‘‘active’’
period for motherships and trawl,
longline, and pot gear catcher/
processors. This action reduces
administrative costs for both the fishing
industry and NMFS.
DATES: Effective October 16, 2008.
ADDRESSES: Written comments
regarding the burden-hour estimates or
other aspects of the collection–of–
information requirements contained in
this final rule may be submitted to
NMFS Alaska Region, P. O. Box 21668,
Juneau, AK 99802 or the Alaska Region
NMFS website at https://
alaskafisheries.noaa.gov and by email to
DavidlRostker@omb.eop.gov, or fax to
202–395–7285.
FOR FURTHER INFORMATION CONTACT:
Patsy A. Bearden, 907–586–7008.
SUPPLEMENTARY INFORMATION:
Background
NMFS manages the U.S. groundfish
fisheries of the exclusive economic zone
(EEZ) off Alaska under the Fishery
Management Plan for Groundfish of the
Bering Sea and Aleutian Islands
Management Area and the Fishery
Management Plan for Groundfish of the
Gulf of Alaska (FMPs). The North
Pacific Fishery Management Council
E:\FR\FM\16SER1.SGM
16SER1
]]>Agencies
[Federal Register Volume 73, Number 180 (Tuesday, September 16, 2008)]
[Rules and Regulations]
[Pages 53384-53390]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-21601]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
49 CFR Part 605
[Docket No. FTA-2008-0015]
Final Policy Statement on FTA's School Bus Operations Regulations
AGENCY: Federal Transit Administration (FTA), DOT.
ACTION: Final policy statement.
-----------------------------------------------------------------------
SUMMARY: Through this notice, the Federal Transit Administration (FTA)
clarifies its policy with respect to its interpretation of ``tripper
service'' and ``school bus operations'' under 49 CFR part 605.
DATE: Effective Date: The effective date of this final policy statement
is September 16, 2008.
ADDRESSES: Availability of the Final Policy Statement and Comments: One
may access this final policy statement, the proposed policy statement,
and public comments on the proposed policy statement at docket number
FTA-2008-0015. For access to the docket, please visit https://
www.regulations.gov or the Docket Operations office located in the West
Building of the U.S. Department of Transportation, Room W12-140, 1200
New Jersey Avenue, SE., Washington, DC 20590, between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Michael L. Culotta, Attorney, Office
of Chief Counsel, Federal Transit Administration, U.S. Department of
Transportation, 1200 New Jersey Avenue, SE., 5th Floor--East Building,
Washington, DC 20590. E-mail: Michael.Culotta@dot.gov. Telephone: (202)
366-1936.
SUPPLEMENTARY INFORMATION:
I. Background
A. Introduction
On May 19, 2008, FTA issued a Notice of Proposed Policy Statement
on FTA's School Bus Operations Regulations \1\ to provide guidance in
the context of the recent decision of the United States District Court
for the Western District of New York in Rochester-Genesee Regional
Transportation Authority v. Hynes-Cherin.\2\ As of August 6, 2008, FTA
received approximately 510 comments on its proposed policy statement.
---------------------------------------------------------------------------
\1\ 73 FR 28,790 (May 19, 2008).
\2\ 531 F.Supp.2d 494, 507 (W.D.N.Y. 2008) (setting aside FTA's
interpretation of its school bus operations regulations under 49 CFR
part 605).
---------------------------------------------------------------------------
In the final policy set forth below, FTA clarifies its guidance
regarding FTA's interpretation of its school bus operations
regulations. FTA shall construe the term ``tripper service,'' as it has
historically, to include modifications to fare collection or subsidy
systems, modifications to the frequency of service, and de minimus
route alterations from route paths in the immediate vicinity of schools
to stops
[[Page 53385]]
located at or in close proximity to the schools. Consistent with that
construction, FTA shall interpret the definition of ``school bus
operations'' to include service that a reasonable person would conclude
was primarily designed to accommodate students and school personnel and
only incidentally to serve the nonstudent general public.
FTA stresses that its intent with this final policy is not to
overhaul its school bus operations regulatory scheme. Rather, in the
context of Rochester-Genesee Regional Transportation Authority, FTA
intends to provide its grantees a basis which will allow them to
continue to provide the service that FTA historically has allowed
through administrative adjudications, while simultaneously satisfying
the statutory requirements.
FTA acknowledges that the 2008-2009 academic year has commenced.
However, because FTA is not overhauling its regulatory scheme and is
continuing to allow the type of tripper service that it historically
has allowed, this final policy will not negatively impact
transportation for the 2008-2009 academic year if grantees have been
complying with FTA's historical interpretation of its school bus
operations regulations.
FTA expects to issue expeditiously a notice of proposed rulemaking
to provide clearer definitions of ``tripper service'' and ``school bus
operations,'' as well as generally to update the existing school bus
regulation.
B. Statutory and Regulatory Framework
In 1973, Congress passed the Federal-Aid Highway Act, which
requires FTA to provide financial assistance to a grantee under 49
U.S.C. Chapter 53 only if the grantee agrees ``not to provide school
bus transportation that exclusively transports students and school
personnel in competition with a private school bus operator.'' \3\
Congress' intent in enacting this provision was to prevent unfair
competition between Federally funded public transportation systems and
private school bus operators.\4\
---------------------------------------------------------------------------
\3\ Federal Aid Highway Act of 1973, Pub. L. No. 93-87, 164(b),
87 Stat. 250, 281-82 (1973) (codified as amended at 49 U.S.C.
5323(f) (2006)).
\4\ Chicago Transit Auth. v. Adams, 607 F.2d 1284, 1292-93 (7th
Cir. 1979) (citing H.R. Rep. No. 93-410, at 87 (1973) (Conf. Rep.);
S. Rep. No. 93-355, at 87 (1973) (Conf. Rep.)).
---------------------------------------------------------------------------
In 1976, the Urban Mass Transportation Administration, now FTA,
codified regulations under 49 CFR part 605 which implemented the above
statutory provision.\5\ Under 49 CFR 605.14, FTA may not provide
financial assistance to a grantee ``unless the applicant and the
Administrator shall have first entered into a written agreement that
the applicant will not engage in school bus operations exclusively for
the transportation of students and school personnel in competition with
private school bus operators.'' \6\ The regulation defines ``school bus
operations'' as ``transportation by bus exclusively for school
students, personnel and equipment * * * .'' \7\
---------------------------------------------------------------------------
\5\ See Codification of Charter Bus Operations Regulations, 41
FR 14,122 (Apr. 1, 1976).
\6\ 49 CFR 605.14 (2007).
\7\ 49 CFR 605.3(b).
---------------------------------------------------------------------------
The regulation exempts ``tripper service'' from the prohibition
against school bus operations.\8\ ``Tripper service'' is ``regularly
scheduled mass transportation service which is open to the public, and
which is designed or modified to accommodate the needs of school
students and personnel, using various fare collections or subsidy
systems.'' \9\
---------------------------------------------------------------------------
\8\ 49 CFR 605.13.
\9\ 49 CFR 605.3(b).
---------------------------------------------------------------------------
II. Rochester-Genesee Regional Transportation Authority v. Hynes-Cherin
On January 24, 2008, the United States District Court for the
Western District of New York issued a decision in Rochester-Genesee
Regional Transportation Authority which set aside FTA's interpretation
of its school bus operations regulations under 49 CFR part 605.\10\ The
Court allowed the Rochester-Genesee Regional Transportation Authority
(RGRTA) to restructure its public transportation operation through the
addition of 240 new express school bus routes proposed to serve the
Rochester City School District (RCSD) and its students.\11\
---------------------------------------------------------------------------
\10\ Rochester-Genesee Reg'l Transp. Auth., 531 F.Supp.2d at
507.
\11\ Id. at 507-16.
---------------------------------------------------------------------------
In its decision, the Court narrowly interpreted the word
``exclusively'' in FTA's definition of ``school bus operations'' and
found that, because a member of the general public could,
hypothetically, board a bus along one of RGRTA's proposed new 240
express routes, RGRTA's service technically would not ``exclusively''
transport students.\12\ The Court therefore concluded that RGRTA's
proposed express bus service did not constitute impermissible school
bus operations.\13\
---------------------------------------------------------------------------
\12\ Id. at 507-09.
\13\ Id.
---------------------------------------------------------------------------
Additionally, the Court broadly interpreted FTA's definition of
``tripper service.'' \14\ The Court cited United States ex rel. Lamers
v. City of Green Bay for the proposition that a grantee may
``completely redesign its transit system to accommodate school children
as long as all routes are accessible to the public and the public is
kept informed of route changes.'' \15\
---------------------------------------------------------------------------
\14\ Id. at 512.
\15\ Id. at 512 (citing United States ex rel. Lamers v. City of
Green Bay, 168 F.3d 1013, 1019 (7th Cir. 1999)).
---------------------------------------------------------------------------
FTA believes that, following the Court's narrow interpretation of
``school bus operations'' and its broad interpretation of ``tripper
service,'' a grantee could conclude that it would be permitted to
restructure its public transportation operation dramatically to
accommodate the needs of a local school district and its students,
thereby displacing private school bus operators and their employees,
provided the grantee keeps the service technically open to the
public.\16\ FTA believes that such an interpretation would contradict
FTA's final policy as set forth herein.
---------------------------------------------------------------------------
\16\ Id. at 509-16.
---------------------------------------------------------------------------
III. Previous FTA Policy
A. Tripper Service
Under its tripper service definition, FTA originally allowed
grantees to accommodate students only with respect to ``different fare
collections and subsidy systems.'' However, through administrative
decisions over the years, FTA broadened its interpretation of its
tripper service definition to allow grantees to make accommodations
beyond subsidies and fare collection systems. Specifically, FTA has
allowed its grantees to make minor modifications to its route paths and
frequency of service. As FTA stated in one matter concerning the Erie
Metropolitan Transit Authority:
Read narrowly, ``modification of regularly scheduled mass
transportation service to accommodate the needs of school students
and personnel'' means using different fare collections and subsidy
systems. In practice, ``modification of mass transportation
service'' has been broadened to include minor modifications in route
or frequency of scheduling to accommodate the extra passengers that
may be expected to use particular routes at particular times of
day.\17\
---------------------------------------------------------------------------
\17\ See In re Erie Metropolitan Transit Authority 1, 4 (1989).
For example, in Travelways, Inc. v. Broome County Department of
Transportation, FTA stated that, ``A familiar type of modification
would be where the route deviates from its regular path and makes a
loop to a school returning back to the point of deviation to complete
the path unaltered.'' \18\ FTA
[[Page 53386]]
reaffirmed this particular interpretation of tripper service in its
October 12, 2007, RGRTA determination by permitting RGRTA to operate
four loop-like route extensions, each only several blocks in length, to
accommodate the needs of school students.\19\
---------------------------------------------------------------------------
\18\ Travelways, Inc. v. Broome County Dep't of Transp. 1, 7
(1985) (allowing a grantee to run a bus to a point and express to a
school from that point if the grantee ran a second bus along the
regular route path from the point at which the first bus expressed
to the school).
\19\ Letter from Federal Transit Administration to Rochester-
Genesee Regional Transportation Authority at 6 (Oct. 12, 2007).
---------------------------------------------------------------------------
FTA has not, however, allowed a grantee such as RGRTA to
restructure its public transportation operation solely to accommodate
the needs of school students--such a modification would be a major
modification. Thus, in its October 12, 2007 letter to RGRTA, FTA
rejected RGRTA's proposed addition of 240 new routes because it would
have constituted a major overhaul of RGRTA's public transportation
system exclusively for the purpose of accommodating the needs of school
students.\20\
---------------------------------------------------------------------------
\20\ Id. at 2-6.
---------------------------------------------------------------------------
In addition to minor modifications to route paths, FTA has allowed
grantees to modify route schedules and the frequency of service. For
example, in Travelways, FTA stated, ``Other common modifications
include operating the service only during school months, on school
days, and during school and opening and closing periods.'' \21\
---------------------------------------------------------------------------
\21\ Travelways at 7.
---------------------------------------------------------------------------
Jurisprudence in United States courts has broadened the scope of
FTA's tripper service definition to include essentially any
modification. In United States ex rel. Lamers v. City of Green Bay, the
Seventh Circuit stated, arguably in dicta, ``[T]he City may completely
redesign its transit system to accommodate school children as long as
all routes are accessible to the public and the public is kept informed
of route changes.'' \22\ Citing Lamers, the Court in Rochester-Genesee
Regional Transportation Authority allowed RGRTA to restructure its
public transportation system by adding 240 new routes to accommodate
the needs of RCSD and its students.\23\
---------------------------------------------------------------------------
\22\ United States ex rel. Lamers v. City of Green Bay, 168 F.3d
1013, 1019 (7th Cir. 1999).
\23\ Rochester-Genesee Reg'l Transp. Auth., 531 F.Supp.2d at
512-13.
---------------------------------------------------------------------------
B. ``Exclusive'' School Bus Operations
FTA has had little prior formal policy regarding ``exclusive''
school bus operations under 49 CFR part 605. In 1982, FTA attempted to
clarify the meaning of ``exclusive'' school bus service through a
rulemaking.\24\ However, in 1990, FTA withdrew the rulemaking because
it believed that the regulations were ``functioning adequately.'' \25\
---------------------------------------------------------------------------
\24\ Advance Notice of Proposed Rulemaking, 47 FR 44,795,
44,803-04 (Oct. 12, 1982).
\25\ Notice of Proposed Rulemaking: Withdrawal, 55 FR 334 (Jan.
4, 1990).
---------------------------------------------------------------------------
In school bus adjudications, parties did not directly address the
issue of ``exclusive'' school bus operations until United Food and
Commercial Workers District Union Local One v. Rochester-Genesee
Regional Transportation Authority.\26\ In resolving that issue, FTA
examined the Federal-Aid Highway Act of 1973, found the language of the
Act's school bus provision ambiguous, and looked to the legislative
history of Act for some guidance.
---------------------------------------------------------------------------
\26\ FTA School Bus Docket Number 2006-02 1 (2007).
---------------------------------------------------------------------------
In an early version of the Federal-Aid Highway Act, Congress did
not use the word ``exclusively'' in the school bus provision, but
rather, focused the language of the Act on preventing unfair
competition between Federally funded grantees and private school bus
operators. That language is as follows:
[N]o financial assistance is to be provided to an applicant
which engages, directly or indirectly in transporting school
children and personnel to and from school and school authorized
functions or which proposes to expand present routes, schedules, or
facilities for that purpose in competition with or supplementary to
service criteria provided by a private transportation company or
other person so engaged in so transporting such children and
personnel.\27\
---------------------------------------------------------------------------
\27\ S. Rep. No. 93-355, at 86 (1973) (emphasis added).
After the bill passed the House and the Senate, the conference
modified the above provision in an effort to further protect private
school bus operators from unfair competition with Federally funded
---------------------------------------------------------------------------
grantees. The conferees used the following language:
[N]o federal financial assistance is to be provided under those
provisions of law for the purchase of buses to any applicant who has
not first entered into an agreement with the Secretary of
Transportation that the applicant will not engage in school bus
operations in competition with private school bus operators.\28\
---------------------------------------------------------------------------
\28\ S. Rep. No. 93-355, at 87 (emphasis added).
As evinced by the above language, Congress intended to prevent
unfair competition between Federally funded grantees and private school
bus operators. Therefore, in District Union Local One, FTA concluded
that it would defeat the purpose of the Federal-Aid Highway Act and
eviscerate 49 U.S.C. 5323(f) if it accepted a grantee's argument that
its service was technically nonexclusive and open to the public, but
where: (1) The grantee had designed the service specifically for
students, without regard to demand from the nonstudent public; (2) the
vast majority of passengers were students; and (3) as a result, the
routes would displace the private school bus industry and its
workers.\29\ In efforts to prevent the unfair competition which
Congress sought to prevent, FTA rejected RGRTA's arguments and
prohibited RGRTA from providing its school bus service exclusively for
school students. FTA utilized this same policy and analysis when it
found non-compliant RGRTA's proposed service in its October 12, 2007
letter \30\ and again in Laidlaw Transit, Inc. v. Rochester-Genesee
Regional Transportation Authority.\31\
---------------------------------------------------------------------------
\29\ District Union Local One, FTA School Bus Docket Number
2006-02 at 10-11 (holding the Rochester-Genesee Regional
Transportation Authority's (RGRTA) school bus service was designed
and modified ``exclusively'' for the Rochester City School District
and its students because students constituted a significant
proportion of passengers on the school bus routes and RGRTA designed
the routes without regard to demand from the nonstudent public).
\30\ See Letter from Federal Transit Administration to
Rochester-Genesee Regional Transportation Authority at 3-4 (Oct. 12,
2007).
\31\ See Laidlaw Transit, Inc. v. Rochester-Genesee Reg'l
Transp. Auth., FTA School Bus Docket Number 2007-01 1, 4 (2007).
---------------------------------------------------------------------------
The Court in Rochester-Genesee Regional Transportation Authority,
however, applied a narrower, more restrictive analysis when it
interpreted the word ``exclusively'' in the context of ``school bus
operations.'' Notwithstanding the fact that RGRTA designed its 240
express school bus routes exclusively for the benefit of RCSD and its
students, without regard for demand from the nonstudent public, the
Court held that, because a member of the general public hypothetically
could board a bus along one of RGRTA's proposed 240 routes, RGRTA's
proposed service was not ``exclusive'' and therefore technically did
not constitute impermissible ``school bus operations.'' \32\
---------------------------------------------------------------------------
\32\ Rochester-Genesee Reg'l Transp. Auth., 531 F.Supp.2d at
507-09.
---------------------------------------------------------------------------
III. Response to Public Comments
As of August 6, 2008, approximately 510 parties commented on FTA's
Notice of Proposed Policy Statement on FTA's School Bus Operations
Regulations. At the closing date of the docket, June 18, 2008,
approximately 157 parties commented on FTA's proposed policy statement.
FTA subsequently considered all additional comments through August 6,
2008. The
[[Page 53387]]
commenters represent a broad spectrum of stakeholders from geographic
areas throughout the United States, and they provided comments on a
wide variety of issues. Many commenters raised issues that are outside
the scope of FTA's proposed policy statement, and FTA does not address
those concerns in this final policy statement.
In this section, FTA responds to public comments by topic in the
following order: (A) Policy Statement Generally; (B) ``School Bus
Operations''; (C) ``Tripper Service''; (D) Unfair Competition; (E)
Economic Issues; (F) Safety Issues; (G) Environmental Issues; (H)
Congestion; (I) Rising Fuel Prices; (J) Local Issues; and (K)
Alternative Policy Proposals and Amendments to 49 CFR part 605.
A. Policy Statement Generally
Some commenters questioned whether FTA has the legal authority to
issue this Final Policy Statement on FTA's School Bus Operations
Regulations. These commenters questioned whether FTA should promulgate
amended regulations rather than issue a policy statement.
FTA Response: FTA concludes that it is not required to promulgate
amended regulations to implement this final policy because FTA is not
changing the language of the regulatory text at 49 CFR part 605. FTA
merely is clarifying its interpretation of that regulatory language,
and FTA lawfully may accomplish this clarification through a policy
statement. Furthermore, FTA is not altering the substance of its
regulatory requirements under 49 CFR part 605; FTA merely is
summarizing thirty-two years of its policy in one document, based on
public comments and FTA's historical interpretation and enforcement of
its school bus operations regulations. Indeed, many commenters
applauded FTA's efforts to issue a policy statement to provide guidance
in the context of Rochester-Genesee Regional Transportation Authority.
B. ``School Bus Operations''
Some commenters asserted that the word ``exclusively,'' as used in
49 U.S.C. 5323(f) and in FTA's definition of ``school bus operations''
at 49 CFR 605.3, is not ambiguous and, therefore, FTA must implement a
regulatory scheme that allows FTA's grantees to transport students and
school personnel so long as the service is technically open to the
public.
Additionally, some commenters asserted that FTA's use of a
``reasonable person'' standard in its interpretation of ``school bus
operations'' is vague.
Finally, at least one commenter expressed concern regarding whether
and to what extent, under FTA's proposed policy, a grantee may create a
new route to serve a school--particularly in communities experiencing
population growth and development.
FTA Response: FTA rejects the notion that 49 U.S.C. 5323(f) is
unambiguous. FTA believes that one may reasonably interpret the term
``exclusively'' in 49 U.S.C. 5323(f) and 49 CFR 605.3 to prohibit
service that essentially is exclusively for students and school
personnel, even though the service technically may be open to the
nonstudent public. The relevant language of the regulation prohibits
service that is ``exclusively for'' students and school personnel. FTA
consequently concludes that it is reasonable and proper to consider
whether service is, in fact, ``for'' such riders. FTA also relies
heavily on the subsequent qualifying language of 49 U.S.C. 5323(f)--
``in competition with a private schoolbus operator''--to justify this
interpretation. To illustrate, if FTA permitted a grantee to provide
school bus operations so long as the service is technically open to the
public, then Congress's purpose of protecting private school bus
operators would be nullified. Such an interpretation would create a
loophole in the statutory and regulatory scheme which would permit
FTA's grantees to displace private school bus operators. Clearly,
Congress did not intend this result, otherwise, Congress would not have
passed this statutory provision. Accordingly, in this final policy
statement, FTA relies on an interpretation of 49 U.S.C. 5323(f) which
reasonably ensures that FTA's grantees that transport school students
are not providing school bus operations that are exclusive-in-fact.
With respect to the ``reasonable person'' standard, FTA points out
that the standard has nearly a two hundred year history in the common
law, and therefore, the standard is an acceptable standard in FTA's
interpretation of its school bus operations regulations.\33\ Courts
have held that the reasonable person standard is an objective standard,
and that a ``reasonable person'' is a person: (1) Of ordinary prudence,
(2) who has knowledge of the law and is aware of its consequences, and
(3) who exercises caution in similar circumstances.\34\
---------------------------------------------------------------------------
\33\ See Vaughan v. Menlove, (1837) 132 Eng. Rep. 490, and its
progeny.
\34\ See William L. Prosser & W. Page Keeton, Prosser and Keeton
on Torts 173-93 (5th ed. 1984).
---------------------------------------------------------------------------
Finally, FTA does not intend to discourage grantees from creating
new routes to serve new demand, so long as a reasonable person would
conclude that the grantees designed the routes to serve some segment of
the nonstudent general public. Therefore, in the final policy set forth
below, FTA will interpret its definition of ``school bus operations''
to allow a grantee to create a new route to serve school students and
personnel if a reasonable person would conclude that the grantee
designed the route to serve some segment of the nonstudent general
public.
C. ``Tripper Service''
With respect to FTA's interpretation of its ``tripper service''
definition at 49 CFR 605.3, some commenters requested clarification as
to what constitutes a ``de minimus'' route deviation. Additionally,
some commenters recommended that FTA should allow route deviations at
multiple points along a route path--not just within the immediate
vicinity of a school.
FTA Response: FTA intends a ``de minimus'' route deviation, as FTA
uses the term in this final policy statement, to mean a route
alteration that is truly minor. For example, historically, FTA has
allowed its grantees to provide tripper service that deviates from an
existing route path by several blocks.\35\ FTA intends to identify
definitively a specific threshold for determining whether an alteration
is ``de minimus'' in its forthcoming notice of proposed rulemaking.
---------------------------------------------------------------------------
\35\ See, e.g., Travelways, Inc. at 7; Letter from Federal
Transit Administration to Rochester-Genesee Regional Transportation
Authority, supra note 20, at 6.
---------------------------------------------------------------------------
With respect to the locations of the route alterations, FTA
stresses that it does not intend to significantly alter the type of
service that it historically has allowed. In the past, FTA has allowed
route alterations only within the immediate vicinities of schools, and
FTA does not intend to break from that precedent in this final policy
statement.
D. Unfair Competition
Many commenters representing the interests of private school bus
operators expressed support for FTA's proposed policy because the
policy effectuates Congress's intent that Federally subsidized grantees
do not displace private school bus operators. However, many commenters
expressed concern that FTA's proposed policy would interfere with local
transit agencies that transport students to school out of necessity,
either because there are no private operators that provide the service
in the local area or that private
[[Page 53388]]
operators charge an unreasonably high rate in exchange for its service.
FTA Response: In localities where no private operator exists or
where a private operator charges an unreasonably high rate in exchange
for service, FTA highlights an existing exemption for its school bus
operations prohibition at 49 CFR 605.11(b). Under this provision, FTA
allows its grantees to provide school bus operations if, in the local
area, a private school bus operator is ``unable to provide adequate
transportation, at a reasonable rate, and in conformance with
applicable safety standards.'' \36\ FTA's final policy does not affect
this exemption, and FTA suggests that interested parties apply to FTA
for this exemption, if appropriate.
---------------------------------------------------------------------------
\36\ 49 CFR 605.11(b).
---------------------------------------------------------------------------
E. Economic Issues
Some commenters expressed economic concerns with respect to FTA's
proposed policy. These commenters questioned the propriety of FTA's
proposed policy, considering that many school districts have limited
financial resources and a variety of educational needs. Additionally,
some commenters proffered that private school bus operators are more
expensive than Federally subsidized public transportation.
FTA Response: Congress, by passing the statutory provision now
codified at 49 U.S.C. 5323(f), already has spoken to this issue and has
decided that it is concerned with preventing unfair competition between
Federally subsidized grantees and private school bus operators. Under
49 U.S.C. 5323(f), FTA may provide financial assistance to a grantee
only if the grantee agrees ``not to provide schoolbus transportation
that exclusively transports students and school personnel in
competition with a private schoolbus operator.'' \37\ In its
regulations, guidance, and this final policy statement, FTA intends to
implement this statutory provision to effectuate Congress's intent to
prevent unfair competition between Federally subsidized grantees and
private school bus operators.
---------------------------------------------------------------------------
\37\ 49 U.S.C. 5323(f).
---------------------------------------------------------------------------
Moreover, some commenters suggested that taxpayers ultimately spend
much more in tax dollars on public transit service for students rather
than on private school bus operators.\38\ For example, they estimate
that the base cost of a transit bus is between $300,000 and $500,000,
while they estimate that the base cost of a private school bus is
between $46,000 and $68,000.\39\ These commenters also claim that the
maintenance cost per mile for a transit bus is approximately $0.80 to
$1.00, while they claim that the maintenance cost per mile for a
private school bus is $0.34.\40\ They therefore argue that, while a
school district's direct payments to a federally subsidized public
transit authority may be lower than payments to a private school bus
operator, the total cost to the taxpayer may be much higher for
federally subsidized transit service than for private school bus
service. FTA lacks sufficient information to analyze this argument
fully, but it will seek additional information and comment in
connection with FTA's forthcoming notice of proposed rulemaking.
---------------------------------------------------------------------------
\38\ See Comment Number FTA-2008-0015-0184.1 (June 19, 2008).
\39\ Id. (noting that the useful life of a transit bus is
approximately 12 to 15 years, while the useful life of a private
school bus is comparable--approximately 12 years).
\40\ Id.
---------------------------------------------------------------------------
F. Safety Issues
Many commenters expressed concern that FTA, through its proposed
policy, would create a more hazardous environment for school students
commuting to school. Specifically, these commenters, with the notion
that FTA intends to limit allowable service under its ``tripper
service'' definition, suggest that FTA's proposed policy would result
in more students walking, biking, and driving across busy roads while
traveling to school. Some commenters raised a similar safety concern
and believe that, with limitations on ``tripper service,'' FTA's
proposed policy will result in less direct routes and increased
transfers for students traveling to school. Consequently, these
commenters write, FTA's proposed policy will cause school students to
congregate at transfer points, which will lead to increased crime
around these transfer points.
Many commenters also expressed concerns regarding the safety of
private school buses. These commenters asserted that public buses are
safer than private buses. Alternatively, many commenters asserted that
private buses, which are subject to stringent safety standards imposed
by the National Highway Traffic Safety Administration (NHTSA), are
safer than public buses. For example, these commenters noted that NHTSA
requires school buses to be equipped with warning lights, additional
mirrors for drivers, ``stop arms,'' and rollover protection.
Additionally, these commenters assert, that on public buses, school
students may be exposed to any number of unknown influences, such as
pedophiles and child molesters.
FTA Response: Congress, by passing the statutory provision now
codified at 49 U.S.C. 5323(f), already has spoken to this issue and has
decided that it is concerned with preventing unfair competition between
Federally subsidized grantees and private school bus operators. Under
49 U.S.C. 5323(f), FTA may provide financial assistance to a grantee
only if the grantee agrees ``not to provide schoolbus transportation
that exclusively transports students and school personnel in
competition with a private schoolbus operator.'' \41\ In its
regulations, guidance, and this final policy statement, FTA intends to
implement this statutory provision to effectuate Congress's intent to
prevent unfair competition between Federally subsidized grantees and
private school bus operators.
---------------------------------------------------------------------------
\41\ 49 U.S.C. 5323(f).
---------------------------------------------------------------------------
Moreover, some commenters misconstrued FTA's intent. FTA did not
propose to eliminate transit service that historically has qualified as
tripper service. Therefore, FTA believes that its final policy will not
result in the above-mentioned increased safety hazards.
With respect to the safety of public buses versus private buses,
FTA recognizes that, most notably, private school buses are subject to
stringent safety standards promulgated by NHTSA.\42\ For example, NHTSA
imposes on school bus manufacturers restrictions regarding rear view
mirrors, safety lights, ``stop signal arms,'' rollover protection, body
joint strength, passenger seating, and crash protection.\43\
Accordingly, FTA does not believe that private school buses afford an
inherently unsafe means of school transportation.
---------------------------------------------------------------------------
\42\ See, e.g., Federal Motor Vehicle Safety Standards, 49 CFR
Part 571 (2007).
\43\ 49 CFR Part 571.
---------------------------------------------------------------------------
G. Environmental Issues
Many commenters asserted that FTA's proposal would result in the
elimination of numerous transit routes. These commenters asserted that,
with fewer transit routes available to students, more students would
drive vehicles to school. The affect, these commenters argued, would be
greater harm to the environment.
Some commenters also argued that public buses are more fuel-
efficient than private buses. Alternatively, many commenters asserted
that private buses are more fuel-efficient than public buses. One
commenter provided evidence that the average fuel miles per gallon for
transit buses is 4.5, while the
[[Page 53389]]
average fuel miles per gallon for private school buses is 6.5.\44\
Scores of commenters asserted that private school bus service is
approximately 40% more fuel-efficient than public bus service.\45\
---------------------------------------------------------------------------
\44\ See Comment Number FTA-2008-0015-0184.1 (June 19, 2008).
\45\ See, e.g., Comment Number FTA-2008-0015-0242.1 (July 25,
2008).
---------------------------------------------------------------------------
FTA Response: Congress, by passing the statutory provision now
codified at 49 U.S.C. 5323(f), already has spoken to this issue and has
decided that it is concerned with preventing unfair competition between
Federally subsidized grantees and private school bus operators. Under
49 U.S.C. 5323(f), FTA may provide financial assistance to a grantee
only if the grantee agrees ``not to provide schoolbus transportation
that exclusively transports students and school personnel in
competition with a private schoolbus operator.'' \46\ In its
regulations, guidance, and this final policy statement, FTA intends to
implement this statutory provision to effectuate Congress's intent to
prevent unfair competition between Federally subsidized grantees and
private school bus operators. Moreover, these concerns are based on the
misperception that FTA's proposed policy would prohibit tripper service
that FTA historically has permitted.
---------------------------------------------------------------------------
\46\ 49 U.S.C. 5323(f).
---------------------------------------------------------------------------
In response to specific concerns regarding environmental harm and
fuel-efficiency concerns, FTA concludes that there is no reliable
method to determine the effect of its school bus operations policy on
the environment. There are numerous factors that will vary from
locality to locality, such as, (1) the number of additional vehicles
utilized as a direct result of FTA's school bus operations policy, (2)
the fuel emissions of those vehicles, and (3) the manufacturing date of
those vehicles. FTA notes that no commenter provided evidence that
FTA's proposed policy would result in greater harm to the environment.
FTA does not anticipate that its school bus operations policy will
have a significant environmental impact, and, thus, FTA does not
believe that this final policy requires additional approvals under the
National Environmental Policy Act.\47\
---------------------------------------------------------------------------
\47\ See 23 CFR 771.117(c)(20) (2008).
---------------------------------------------------------------------------
H. Congestion
Many commenters asserted that FTA proposes to eliminate numerous
transit routes. These commenters alleged that, with less transit routes
available to students, more students would drive vehicles to school.
The affect, these commenters argued, would be increased congestion.
FTA Response: Congress, by passing the statutory provision now
codified at 49 U.S.C. 5323(f), already has spoken to this issue and has
decided that it is concerned with preventing unfair competition between
Federally subsidized grantees and private school bus operators. Under
49 U.S.C. 5323(f), FTA may provide financial assistance to a grantee
only if the grantee agrees ``not to provide schoolbus transportation
that exclusively transports students and school personnel in
competition with a private schoolbus operator.'' \48\ In its
regulations, guidance, and this final policy statement, FTA intends to
implement this statutory provision to effectuate Congress's intent to
prevent unfair competition between Federally subsidized grantees and
private school bus operators.
---------------------------------------------------------------------------
\48\ 49 U.S.C. 5323(f).
---------------------------------------------------------------------------
Moreover, these concerns are based on the misunderstanding that
FTA's proposed policy would prohibit tripper service that FTA
historically has permitted. In this final policy statement, FTA does
not propose to alter its historical interpretation of ``tripper
service'' fundamentally, and therefore, FTA does not believe that its
final policy will affect congestion.
I. Rising Fuel Prices
Some commenters expressed concern about rising fuel prices and the
effect these prices will have on school transportation.
FTA Response: Congress, by passing the statutory provision now
codified at 49 U.S.C. 5323(f), already has spoken to this issue and has
decided that it is concerned with preventing unfair competition between
Federally subsidized grantees and private school bus operators. Under
49 U.S.C. 5323(f), FTA may provide financial assistance to a grantee
only if the grantee agrees ``not to provide schoolbus transportation
that exclusively transports students and school personnel in
competition with a private schoolbus operator.'' \49\ In its
regulations, guidance, and this final policy statement, FTA intends to
implement this statutory provision to effectuate Congress's intent to
prevent unfair competition between Federally subsidized grantees and
private school bus operators.
---------------------------------------------------------------------------
\49\ 49 U.S.C. 5323(f).
---------------------------------------------------------------------------
Moreover, these commenters did not specify how rising fuel prices
should affect FTA's final policy. Notably, rising fuel prices affect
both public transit authorities and private school bus operators in any
given locality, therefore, FTA estimates that rising fuel prices should
affect school districts in a similar manner, regardless of the type of
service that they use to transport students. Without a more
particularized concern from these commentators, it is difficult for FTA
to speculate how rising fuel prices should impact and factor into FTA's
final policy.
J. Local Issues
Approximately 141 of the 510 commenters represent the Oakland,
California area, and these commenters expressed concerns that FTA
proposed to eliminate transit service in that region. Approximately 27
commenters from Washington State expressed similar concerns.
FTA Response: These comments are unfounded: FTA did not propose to
eliminate any particular transit service through its proposed policy
statement, and FTA does not propose to eliminate any particular transit
service through this final policy statement. Moreover, FTA's final
policy does not prohibit transportation that historically has qualified
as tripper service. Therefore, so long as public transit authorities in
these areas are complying with FTA's historical interpretation of its
school bus operations regulations, FTA's final policy should not
interfere with the transportation that these public transit authorities
provide.
K. Alternative Policy Proposals and Amendments to 49 CFR Part 605
Some commenters offered alternative policy proposals, including
amendments to 49 CFR part 605, for FTA's consideration. Specifically,
some commenters proposed that FTA require an annual period of open
bidding on school transportation, with bid submissions from interested
parties received in April and FTA selections, based on quality and
cost, in May.
Some commenters also proposed additional exemptions under 49 CFR
part 605, such as exemptions for: (1) Areas with populations of less
than 200,000 persons; (2) transit agencies that operate in communities
without school district transportation subsidies; (3) grantees that
provide service to school districts that operate some service with
their own private fleets; and (4) routes serving secondary schools.
Lastly, some commenters suggested that FTA utilize a negotiated
rulemaking proceeding to formulate its forthcoming proposed rule.
FTA Response: With respect to the open bidding proposal, FTA
believes that such a proposal amounts to a new regulatory scheme, which
FTA cannot appropriately adopt through a policy
[[Page 53390]]
statement. The proposal would require an amendment to FTA's school bus
operations regulations, not its interpretation of those regulations,
and FTA would have to adopt such a scheme through a rulemaking.
With respect to the proposed exemptions, FTA believes that, if
adopted, these proposals would constitute substantive changes to the
text of FTA's school bus operations regulations. FTA already lists a
series of allowable exemptions at 49 CFR 605.11. Thus, FTA believes
that it cannot appropriately consider these exemptions within the
rubric of this final policy statement.
Finally, FTA believes that the comments suggesting a negotiated
rulemaking fall outside the scope of this policy statement. FTA will
appropriately address any comments regarding a notice of proposed
rulemaking in that forum.
IV. Final FTA Policy
A. Purpose of Final FTA Policy
In the final policy set forth below, FTA clarifies its guidance
regarding FTA's interpretation of its school bus operations regulations
under 49 CFR part 605 in light of the Court's decision in Rochester-
Genesee Regional Transportation Authority. FTA respects the Court's
decision in the Western District of New York. However, FTA finds that
the Court's decision is problematic because, if applied elsewhere in
the United States, it could obstruct FTA's ability to execute and
implement Congress's school bus prohibition and Congress's express
intent regarding that prohibition. Therefore, FTA issues this final
policy statement to clarify the status of FTA's guidance regarding its
interpretation of its school bus operations regulations under 49 CFR
part 605, and to resolve, for jurisdictions outside of the Western
District of New York, conflicting issues between FTA's school bus
operations policy and the Court's decision in Rochester-Genesee
Regional Transportation Authority.
Additionally, FTA intends to issue expeditiously a notice of
proposed rulemaking to provide clearer definitions of ``tripper
service'' and ``school bus operations,'' as well as generally to update
the existing school bus regulation.
B. Tripper Service
With respect to a grantee's regularly scheduled public
transportation service, FTA shall interpret the definition of ``tripper
service'' under 49 CFR 605.3(b), as it historically has interpreted
that definition, to allow a grantee to (1) utilize ``various fare
collections or subsidy systems,'' (2) modify the frequency of service,
and (3) make de minimis route alterations from route paths in the
immediate vicinity of schools to stops located at or in close proximity
to the schools. For example, a grantee may provide more frequent
service on an existing route to accommodate increased student ridership
before and after school. Furthermore, a grantee may alter route paths
to accommodate the needs of school students by making de minimis route
alterations from route paths to drop off and pick up students at stops
located on school grounds or in close proximity to the schools.
FTA believes that this policy regarding its interpretation of the
definition of ``tripper service'' is consistent with both the statutory
language and the language of 49 CFR 605.3(b). This policy permits only
the type of design or modification accommodations that FTA historically
has allowed and does not represent a departure from FTA's prior
guidance on this matter.
C. ``Exclusive'' School Bus Operations
To effectuate the intent of Congress when it enacted its school bus
operations prohibition now codified at 49 U.S.C. 5323(f), FTA shall
interpret the term ``exclusively'' in the definition of ``school bus
operations'' under 49 CFR 605.3(b) to encompass any service that a
reasonable person would conclude was primarily designed to accommodate
students and school personnel, and only incidentally to serve the
nonstudent general public. Additionally, grantees may create new routes
to serve school students and personnel if a reasonable person would
conclude that the grantees designed the routes to serve some segment of
the nonstudent general public.
FTA believes that maintaining this interpretation of
``exclusively'' is consistent with the legislative history on the issue
and would allow FTA effectively to implement the express intent of
Congress, which is to prevent unfair competition between Federally
funded grantees and private school bus operators. This policy does not
represent a departure from FTA's prior guidance on this matter, and is
merely intended to provide FTA with additional flexibility when
interpreting 49 U.S.C. 5323(f) and 49 CFR 605.3(b) and effectuating the
intent of Congress.
Issued in Washington, DC on this 11th day of September 2008.
James S. Simpson,
Administrator.
[FR Doc. E8-21601 Filed 9-15-08; 8:45 am]
BILLING CODE 4910-57-P
