School Bus Operations, 68375-68390 [E8-26683]

Download as PDF Federal Register / Vol. 73, No. 223 / Tuesday, November 18, 2008 / Proposed Rules * 39.102 (vi) Related resources. * * * * PART 4—ADMINISTRATIVE MATTERS 3. Amend section 4.1202 by adding paragraph (cc) to read as follows: 4.1202 Solicitation provisions and contract clauses. * * * * * (cc) 52.239–XX, Authentic Information Technology Products— Representation. 39.107 4. Amend section 12.301 by adding paragraphs (d)(3) and (d)(4) to read as follows: 12.301 Solicitation provisions and contract clauses for the acquisition of commercial items. * * * * * (d) * * * (3) Insert the provision at 52.239–XX, Authentic Information Technology Products—Representation, as prescribed at 39.107(b)(1). (4) Insert the clause at 52.239–YY, Authentic Information Technology Products, as prescribed at 39.107(b)(2). * * * * * PART 39—ACQUISITION OF INFORMATION TECHNOLOGY * * * * * Counterfeit information technology product means any item of information technology (IT), including hardware and software, that is an unauthorized copy, replica, or substitute. * * * * * 6. Amend section 39.101 by adding paragraph (e) to read as follows: Policy. dwashington3 on PRODPC61 with PROPOSALS * * * * (e) To protect the Government from procuring counterfeit IT products, agencies shall ensure that all acquisitions for IT products are procured from the original equipment manufacturer (OEM), software developer, or authorized distributor or reseller. Agencies shall ensure that all solicitations and contracts for the acquisition of IT products include a requirement for the offeror or contractor to represent that the IT products being sold under its contract to the Government are not counterfeit. VerDate Aug<31>2005 14:36 Nov 17, 2008 Jkt 217001 PART 52—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 52.239–1 [Amended] 9. Amend section 52.239–1 by removing from the introductory paragraph ‘‘39.107’’ and adding ‘‘39.107(a)’’ in its place. 10. Add sections 52.239–XX and 52.239–YY to read as follows: As prescribed in 39.107(b)(1), insert the following provision: Definitions. * * * * * (b)(1) The contracting officer shall insert the provision at 52.239–XX, Authentic Information Technology Products—Representation, in all solicitations for the acquisition of IT products. (2) The contracting officer shall insert the clause at 52.239–YY, Authentic Information Technology Products, in all contracts for the acquisition of IT products. 52.239–XX Authentic Information Technology Products—Representation. 5. Amend section 39.002 by adding, in alphabetical order, the definition ‘‘Counterfeit information technology product’’ to read as follows: 39.101 Contract clause. * PART 12—ACQUISITION OF COMMERCIAL ITEMS 39.002 [Amended] 7. Amend section 39.102 by removing from paragraph (b) ‘‘availability,’’ and adding ‘‘availability, counterfeit IT products, performance, security,’’ in its place. 8. Amend section 39.107 by designating the undesignated paragraph as paragraph (a); and adding paragraph (b) to read as follows: AUTHENTIC INFORMATION TECHNOLOGY PRODUCTS— REPRESENTATION (DATE) (a) Definition. Counterfeit information technology product means any item of information technology (IT), including hardware and software, that is an unauthorized copy, replica, or substitute. (b) To be eligible for award of the proposed contract, an offeror must— (1) Be either the original equipment manufacturer (OEM); or (2) Have written authorization from the OEM or software developer to function as a distributor or reseller of the subject products. (c) By submission of this offer, the offeror represents that— (1) The IT products to be sold or leased to the Government under the proposed contract are authentic and not counterfeit; and (2) It is the original equipment manufacturer or software developer, or an authorized distributor or reseller for the IT products. (End of provision) PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 68375 52.239–YY Authentic Information Technology Products. As prescribed in 39.107(b)(2), insert the following clause: AUTHENTIC INFORMATION TECHNOLOGY PRODUCTS (DATE) (a) Definition. Counterfeit information technology product means any item of information technology (IT), including hardware and software, that is an unauthorized copy, replica, or substitute. (b) The Contractor shall sell to the Government only IT products that are authentic and not counterfeit. In the event that such IT products are determined to be counterfeit, there is no limitation to the Contractor’s liability. (End of clause) [FR Doc. E8–27275 Filed 11–17–08; 8:45 am] BILLING CODE 6820–EP–S DEPARTMENT OF TRANSPORTATION Federal Transit Administration 49 CFR Part 605 [Docket No. FTA–2008–0044] RIN 2132–AB00 School Bus Operations Federal Transit Administration (FTA), DOT. ACTION: Notice of proposed rulemaking. AGENCY: SUMMARY: Through this notice, the Federal Transit Administration (FTA) proposes to amend its school bus operations regulations. Most notably, FTA proposes to clarify several definitions, amend the school bus operations complaint procedures, and implement Section 3023(f) of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA–LU). FTA seeks comment on this notice from interested parties. DATES: Comments must be received by February 17, 2009. FTA will consider late filed comments to the extent practicable. You may submit comments by one of the following methods. • Federal e-Rulemaking Portal: https://www.regulations.gov. Follow the online instructions for submitting comments. • Fax: 1–202–493–2251. • U.S. Post or Express Mail: U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue, SE., Washington, DC 20590. • Hand Delivery: The West Building of the U.S. Department of ADDRESSES: E:\FR\FM\18NOP1.SGM 18NOP1 68376 Federal Register / Vol. 73, No. 223 / Tuesday, November 18, 2008 / Proposed Rules Transportation, 1200 New Jersey Avenue, SE, Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. Instructions: You must include the agency name (Federal Transit Administration) and the Docket number (FTA–2008–0044) or the Regulatory Identification Number (RIN) (2132– AB00) for this notice at the beginning of your comment. You should include two copies of your comment if you submit it by mail. If you wish to receive confirmation that FTA received your comment, you must include a selfaddressed stamped postcard. Note that FTA will post all comments that it receives, including any personal information provided therein, without change, to https://www.regulations.gov. Due to security procedures in effect since October 2001 regarding mail deliveries, mail received through the U.S. Postal Service may be subject to delays. A party that submits a comment responsive to this notice should consider using an express mail firm to ensure the prompt filing of any submissions not filed electronically or by hand. 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., East Building—5th Floor, Washington, DC 20590. E-mail: Michael.Culotta@dot.gov. Telephone: (202) 366–1936. SUPPLEMENTARY INFORMATION: I. Background dwashington3 on PRODPC61 with PROPOSALS A. Introduction FTA issues this Notice of Proposed Rulemaking regarding its school bus operations regulations at 49 CFR part 605 pursuant to the changes Congress requires in section 3023(f) of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA–LU),1 to provide clarification in the context of the U.S. District Court for the Western District of New York’s decision in RochesterGenesee Regional Transportation Authority v. Hynes-Cherin,2 and generally, to update the regulation. Through this Notice of Proposed Rulemaking, FTA intends to provide its grantees with a regulatory basis which will allow them to continue to provide the service that FTA historically has allowed through administrative 1 Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA–LU) sec. 3023, 49 U.S.C. 5323(f) (2006). 2 531 F.Supp.2d 494 (W.D.N.Y. 2008). VerDate Aug<31>2005 14:36 Nov 17, 2008 Jkt 217001 adjudications, while simultaneously satisfying the statutory requirements of 49 U.S.C. 5323(f). To the extent that FTA departs from any previous guidance with respect to its school bus operations regulations, FTA sets forth its reasons below. B. Statutory and Regulatory History In 1973, Congress passed the FederalAid Highway Act, which authorizes 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’s 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 at 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 FTA defines ‘‘school bus operations’’ as ‘‘transportation by bus exclusively for school students, personnel and equipment. * * *’’ 7 FTA exempts ‘‘tripper service’’ from the prohibition of school bus operations.8 FTA defines ‘‘tripper service’’ as ‘‘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 On August 10, 2005, President George W. Bush signed SAFETEA–LU into law. Section 3023(f)(3) of SAFETEA–LU provides, ‘‘If the Secretary finds that an applicant, governmental authority, or 3 Federal Aid Highway Act of 1973, Public Law No. 93–87, sec. 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) (codified at 49 CFR part 605 (2007)). 6 49 CFR 605.14 (2007). 7 49 CFR 605.3(b). 8 49 CFR 605.13. 9 49 CFR 605.3(b). PO 00000 Frm 00013 Fmt 4702 Sfmt 4702 publicly owned operator has violated the [school bus] agreement * * * the Secretary shall bar a recipient or an operator from receiving Federal transit assistance in an amount the Secretary considers appropriate.’’ 10 Prior to SAFETEA–LU, Congress required the Secretary of Transportation to completely bar a violator of 49 CFR part 605 of all Federal transit funds to which it was entitled.11 C. Rochester-Genesee Regional Transportation Authority v. HynesCherin On January 24, 2008, the U.S. District Court for the Western District of New York issued a decision in RochesterGenesee Regional Transportation Authority which set aside FTA’s interpretation of its school bus operations regulations at 49 CFR part 605.12 The Court allowed the RochesterGenesee 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.13 In its decision, the Court narrowly interpreted the word ‘‘exclusively’’ in FTA’s definition of ‘‘school bus operations’’ and concluded that technically, because a member of the general public hypothetically could board a bus along one of RGRTA’s proposed 240 routes, RGRTA did not propose to ‘‘exclusively’’ transport students, and therefore, RGRTA’s proposed express school bus service did not constitute an impermissible school bus operation.14 Additionally, the Court broadly interpreted FTA’s definition of ‘‘tripper service’’ citing 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 D. School Bus Operations Policy Statement On September 16, 2008, in the context of the Court’s decision in RochesterGenesee Regional Transportation Authority, FTA issued a ‘‘Final Policy Statement on FTA’s School Bus 10 SAFETEA–LU sec. 3023(f)(3). 49 CFR 605.33(b) (2004). 12 See Rochester-Genesee Reg’l Transp. Auth., 531 F.Supp.2d 521–22. 13 Id. at 507–17. 14 Id. at 507–09. 15 Id. at 512 (citing United States ex rel. Lamers v. City of Green Bay, 168 F.3d 1013, 1019 (7th Cir. 1999)). 11 See E:\FR\FM\18NOP1.SGM 18NOP1 Federal Register / Vol. 73, No. 223 / Tuesday, November 18, 2008 / Proposed Rules Operations Regulations.’’ 16 In the policy statement, FTA noted that it respects the Court’s decision in the Western District of New York; however, FTA found the Court’s decision problematic because, if applied elsewhere in the United States, the decision could obstruct FTA’s ability to execute and implement Congress’ school bus prohibition and its express intent regarding that prohibition.17 FTA found that if it 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.18 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 with ease.19 Clearly, Congress did not intend this result, otherwise, Congress would not have passed the statutory provision at 49 U.S.C. 5323(f).20 Thus, in the policy statement, FTA interpreted the term ‘‘tripper service’’ 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.21 FTA interpreted the term ‘‘exclusively’’ as used in FTA’s definition of school bus operations at 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 non-student general public.22 In the policy statement, FTA expressed its intention to issue a Notice of Proposed Rulemaking to amend the regulatory text at 49 CFR part 605.23 II. Notice of Proposed Rulemaking A. Introduction dwashington3 on PRODPC61 with PROPOSALS FTA issues this Notice of Proposed Rulemaking regarding its school bus operations regulations at 49 CFR part 605 pursuant to the changes Congress requires in section 3023(f) of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for 16 Final Policy Statement on FTA’s School Bus Operations Regulations, 73 FR 53,384 (Sept. 16, 2008). 17 73 FR 53,390. 18 73 FR 53,387. 19 73 FR 53,387. 20 73 FR 53,387. 21 73 FR 53,390. 22 73 FR 53,390. 23 73 FR 53,385. VerDate Aug<31>2005 14:36 Nov 17, 2008 Jkt 217001 Users (SAFETEA–LU),24 to provide clarification in the context of the U.S. District Court for the Western District of New York’s decision in RochesterGenesee Regional Transportation Authority v. Hynes-Cherin,25 and generally to update the regulation. Through this Notice of Proposed Rulemaking, FTA intends to provide its grantees with a regulatory basis which will allow them to continue to provide the service that FTA historically has allowed through administrative adjudications, while simultaneously satisfying its statutory requirements under 49 U.S.C. 5323(f). To the extent that FTA departs from any previous guidance with respect to its school bus operations regulations, FTA sets forth its reasons below. When drafting this Notice of Proposed Rulemaking, FTA sought comment from interested parties on the existing school bus operations regulation at 49 CFR part 605. On June 11, 2008, FTA met with representatives from the National School Transportation Association to discuss viewpoints from private school bus operators on the existing school bus operations regulation. On July 29, 2008, FTA met with representatives from the American Public Transportation Association, the Washington Metropolitan Area Transit Authority, the Champaign-Urbana Mass Transit District, the Greater Cleveland Regional Transit Authority, the Alameda-Contra Costa Transit District, The Rapid, and the Council of the Great City Schools to discuss viewpoints from operators of public transportation systems and public school districts on the existing school bus operations regulation. FTA intends to post on docket number FTA– 2008–0044 information from the meetings mentioned above, such as attendance sheets and rulemaking proposals. On September 16, 2008, FTA issued a ‘‘Final Policy Statement on FTA’s School Bus Operations Regulations’’ that clarifies FTA’s interpretation of its school bus operations regulations at 49 CFR part 605.26 The public provided FTA with over 600 comments at docket number FTA–2008–0015 regarding FTA’s proposed policy statement, and FTA considered those comments in developing this Notice of Proposed Rulemaking. B. Section-by-Section Analysis In this section, FTA discusses the differences between the existing regulation and the proposed regulation. 24 SAFETEA–LU sec. 3023. F.Supp.2d 494. 26 73 FR 53,384. 25 531 PO 00000 Frm 00014 Fmt 4702 Sfmt 4702 68377 In addition to seeking general comments on the proposed regulation, FTA requests comments on the specific issues indicated below. 1. Subpart A—General a. Purpose (§ 605.1) FTA proposes to amend 49 CFR 605.1 to update statutory citations. Additionally, FTA proposes to amend 49 CFR 605.1 to include the language of 49 U.S.C. 5323(f), specifically, ‘‘Financial assistance under this chapter may be used for a capital project, or to operate public transportation equipment or a public transportation facility, only if the applicant agrees not to provide schoolbus transportation that exclusively transports students and school personnel in competition with a private schoolbus operator.’’ b. Scope (§ 605.2) FTA proposes to amend 49 CFR 605.2 to update statutory citations. c. Definitions (§ 605.3) i. General FTA proposes to amend 49 CFR 605.3 to update statutory citations. FTA proposes to add a definition of the term ‘‘Chief Counsel’’ to provide clarification with respect to FTA’s proposed procedures under Subpart B and Subpart C. FTA proposes to delete the term ‘‘grant contract’’ because it is no longer applicable under FTA’s proposed agreement requirements at 49 CFR 605.11. FTA proposes to update the term ‘‘grantee’’ to include subrecipients of federal financial assistance under 49 U.S.C. Chapter 53 and 23 U.S.C. 133 and 142. FTA proposes to delete the term ‘‘incidental’’ because it is no longer applicable to 49 CFR part 605. FTA cautions grantees, however, that FTA Circular 5010.1 defines ‘‘incidental use’’ as: [T]he authorized use of real property and equipment acquired with FTA funds for the purposes of transit service but which also has limited non-transit use due to transit operating circumstances. Such use must be compatible with the approved purposes of the project and not interfere with intended public transportation uses of project assets. FTA proposes to delete the term ‘‘tripper service.’’ FTA discusses this proposal in section (II)(B)(2)(d) below. FTA proposes to delete the term ‘‘urban area’’ and replace it with the term ‘‘geographic service area’’ which means ‘‘the area in which a recipient is authorized to provide public transportation service under appropriate E:\FR\FM\18NOP1.SGM 18NOP1 68378 Federal Register / Vol. 73, No. 223 / Tuesday, November 18, 2008 / Proposed Rules local, state, and Federal law.’’ FTA no longer uses the term ‘‘urban area,’’ but instead, FTA uses the term ‘‘geographic service area’’ to refer to the local area in which a grantee operates. dwashington3 on PRODPC61 with PROPOSALS ii. ‘‘School Bus Operations’’ FTA proposes to amend the definition of the term ‘‘school bus operations.’’ Under 49 U.S.C. 5323(f), FTA may provide financial assistance to a grantee 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.’’ 27 Congress’s intent in enacting this provision was to prevent unfair competition between federally funded public transportation systems and private school bus operators.28 In its school bus operations regulations, FTA defines ‘‘school bus operations’’ as ‘‘transportation by bus exclusively for school students, personnel and equipment * * *’’ 29 In Rochester-Genesee Regional Transportation Authority, the Court narrowly interpreted the word ‘‘exclusively’’ and concluded that, technically, because a member of the general public hypothetically could board a bus along one of RGRTA’s proposed 240 routes, RGRTA did not propose to ‘‘exclusively’’ transport students, and therefore, RGRTA’s proposed express school bus service did not constitute an impermissible school bus operation.30 FTA finds the Court’s decision in Rochester-Genesee Regional Transportation Authority problematic. FTA believes that a grantee, pursuant to the Court’s interpretation of ‘‘school bus operations,’’ may believe that it could restructure substantially its public transportation operation to accommodate the needs of a local school district and its students, which might have the effect of displacing private school bus operators and their employees, provided the system keeps the service open to the public even though members of the public unlikely will board these buses. This practice would produce unfair competition for private school bus operators which is precisely the result Congress sought to prevent when enacting 49 U.S.C. 5323(f). FTA proposes to add a definition of the term ‘‘exclusively’’ as used in 49 U.S.C. 5323(f) and the definition of 27 49 U.S.C. 5323(f). Transit Auth., 607 F.2d at 1292–93. 29 49 CFR 605.3. 30 Rochester-Genesee Reg’l Transp. Auth., 531 F.Supp.2d at 507–09. 28 Chicago VerDate Aug<31>2005 14:36 Nov 17, 2008 Jkt 217001 ‘‘school bus operations’’ at 49 CFR 605.3 to mean ‘‘transportation that a reasonable person would conclude was designed primarily to accommodate students and school personnel, without regard to demand from the non-student general public.’’ FTA intends its proposed definition of ‘‘exclusively’’ to effectuate Congress’s intent of protecting private school bus operators from unfair competition with federally subsidized grantees. FTA relies, in part, on the subsequent qualifying language of 49 U.S.C. 5323(f)—‘‘in competition with a private schoolbus operator’’—to justify this definition. To illustrate, if FTA permitted a grantee to provide school bus operations so long as the service is advertised as generally 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 with ease. As noted earlier, Congress did not intend this result; otherwise, Congress would not have enacted this statutory provision. Additionally, the relevant language of the regulation prohibits service that is ‘‘exclusively for’’ students and school personnel, and therefore, FTA concludes that it is reasonable and proper to consider whether service is, in fact, ‘‘for’’ such riders. With respect to the ‘‘reasonable person’’ standard, FTA points out that this standard has nearly a two hundred year history in the common law.31 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.32 Accordingly, FTA proposes to utilize this objective, rather than subjective, standard when analyzing issues involving school bus operations. FTA also uses the reasonable person standard in a similar definition of ‘‘exclusive’’ in its charter service regulations at 49 CFR part 604. Under 49 CFR 604.3(h), ‘‘ ‘Exclusive’ means service that a reasonable person would conclude is intended to exclude members of the public.’’ 33 Employing a similar reasonable person standard in 31 See Vaughan v. Menlove, (1837) 132 Eng. Rep. 490, and its progeny. 32 See William L. Prosser & W. Page Keeton, Prosser and Keeton On Torts 173–93 (5th ed. 1984). 33 49 CFR 604.3(h). PO 00000 Frm 00015 Fmt 4702 Sfmt 4702 the school bus regulation would afford FTA and the public consistency throughout its regulations. In addition to utilizing a reasonable person standard, FTA proposes to identify a non-exhaustive list of factors that it intends to consider when evaluating a school bus operations issue. FTA discusses these factors at section (II)(B)(4)(a)(v) below. 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 non-student general public. Therefore, FTA proposes to define ‘‘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 also designed the route to serve some segment of the nonstudent general public. d. Public Hearing Requirement (§ 605.4) FTA proposes to delete the public hearing requirement for applicants that engage or wish to engage in school bus operations at 49 CFR 605.4 and replace it with the proposed procedures in Subpart B as discussed in section (II)(B)(2) below. 2. Subpart B—School Bus Agreements a. Purpose (§ 605.10) Under 49 CFR 605.10, FTA explains that the purpose of Subpart B is ‘‘to formulate procedures for the development of an agreement concerning school bus operations.’’ 34 FTA proposes to delete this statement of purpose. FTA includes a statement of purpose regarding its school bus operations regulations at 49 CFR 605.1. Instead, FTA proposes to amend 49 CFR 605.10 to include an express prohibition on school bus operations. Under FTA’s current school bus operations regulations, FTA does not have a separate, express provision which prohibits school bus operations. Instead, FTA requires applicants to enter into an agreement with FTA stating that they will not provide school bus operations. With an express prohibition on school bus operations at 49 CFR 605.10, FTA intends to clarify its regulatory scheme. Additionally, FTA proposes to prohibit grantees from contracting to provide school bus operations. Under the current regulatory scheme, FTA only may entertain a school bus operations case if a potential violation has occurred, that is, if a grantee provided 34 49 E:\FR\FM\18NOP1.SGM CFR 605.10. 18NOP1 Federal Register / Vol. 73, No. 223 / Tuesday, November 18, 2008 / Proposed Rules service that was a potential school bus operation. Currently, if a grantee contracted to provide service, but has not yet provided it, then the case is not ripe for FTA’s adjudication.35 FTA believes that this scenario is problematic because, at the point when a case becomes ripe, the academic year likely is in session, and FTA’s decision on the merits could potentially disrupt school transportation for that academic year. By considering cases in which a grantee contracted to provide service that potentially constitutes a school bus operation, but has not yet provide the service, FTA proposes to mitigate the risk of disrupting school transportation for the academic year by providing the grantees, private operators, and school districts with time to create a system that complies with FTA’s school bus operations regulations. b. Exemptions (§ 605.11) dwashington3 on PRODPC61 with PROPOSALS i. Existing Provisions Pursuant to 49 U.S.C. 5323(f), FTA provides exemptions to its prohibition on school bus operations where (1) a grantee or applicant operates a school system and a separate and exclusive school bus program for that school system; (2) private school bus operators in the local area are unable to provide adequate transportation, at a reasonable rate, and in conformance with applicable safety standards; and (3) a grantee or applicant is a state or local public body or agency that previously was engaged in school bus operations.36 In the existing regulation, a grantee or applicant that wishes to provide school bus operations under an exemption must follow the procedures set forth in 49 CFR 605.16–605.19. In sum, a grantee or applicant must (1) provide notice to local private school bus operators of its proposed or existing school bus operation,37 (2) publish in a local newspaper a description of its proposed or existing school bus operation,38 (3) hold public hearings regarding the proposed or existing school bus operation,39 and (4) submit an application to FTA setting forth reasons why FTA should allow the grantee or applicant to provide school bus operations.40 If no private school bus operator operates in the grantee’s or applicant’s local area, then the grantee or applicant may so certify in lieu of 35 See, e.g., Laidlaw Transit, Inc. v. RochesterGenesee Reg’l Transp. Auth., FTA School Bus Operations Docket Number 2007–01 1, 3 (2007). 36 49 CFR 605.11. 37 49 CFR 605.16(a)(1). 38 49 CFR 605.16(a)(2). 39 49 CFR 605.18. 40 49 CFR 605.11. VerDate Aug<31>2005 14:36 Nov 17, 2008 Jkt 217001 providing the notice required above.41 Private school bus operators have an opportunity to comment on the grantee’s or applicant’s proposed or existing school bus operations.42 The FTA Administrator subsequently issues a decision regarding the grantee’s or applicant’s application for an exemption.43 Since FTA promulgated its school bus operations regulations in 1976, grantees and applicants rarely have applied for an exemption under 49 CFR 605.11. ii. Proposed Exemptions FTA proposes to restructure its regulatory scheme with regard to exemptions. First, FTA proposes to move its list of exemptions from 49 CFR 605.11 to 49 CFR 605.12. Second, FTA proposes to delete from 49 CFR 605.3(b) its definition of ‘‘tripper service’’ and its provision regarding tripper service at 49 CFR 605.13. FTA proposes to add exemptions to the school bus operations prohibition for service that FTA historically has considered to be tripper service. This amendment is discussed in detail in Section (II)(B)(2)(d) below. Third, FTA proposes to remove from its list of exemptions the exemption located at 49 CFR 605.11(b) which allows a grantee or applicant to provide school bus operations if the grantee or applicant demonstrates to the satisfaction of the Administrator, ‘‘That private school bus operators in the urban area are unable to provide adequate transportation, at a reasonable rate, and in conformance with applicable safety standards.’’ 44 FTA proposes to make this ‘‘exemption’’ a new ‘‘exception,’’ and FTA discusses this proposal in detail in Section (II)(B)(2)(b)(iii) below. Fourth, FTA proposes to eliminate the procedural requirements that a grantee or applicant must follow at 49 CFR 605.16–605.19 to provide service pursuant to an exemption. FTA intends its proposed exemptions to serve as defenses for grantees in the context of a school bus operations complaint filed under proposed Subpart C. iii. New Exceptions As mentioned above, FTA proposes to amend 49 CFR 605.13 to provide exceptions to the proposed prohibition on school bus operations at 49 CFR 605.10. Here, FTA borrows from, and modifies, the current procedures 41 49 CFR 605.17. CFR 605.18. 43 49 CFR 605.19. 44 49 CFR 605.11. 42 49 PO 00000 Frm 00016 Fmt 4702 Sfmt 4702 68379 corresponding to a petition for an exemption. FTA proposes to allow an applicant or grantee to petition the Chief Counsel for an exception to the school bus operations prohibition ‘‘where private school bus operators in the applicant’s or grantee’s geographic service area are unable to provide adequate transportation at a reasonable rate and in conformance with applicable safety standards.’’ To provide service pursuant to this proposed exception, an applicant or a grantee must follow a series of proposed procedural requirements. FTA proposes to require an applicant or a grantee to formally apply to FTA for a ‘‘Petition for an Exception.’’ First, the applicant or grantee must provide notice to the Chief Counsel that it intends to apply for a Petition for an Exception. This notice must include a description of the proposed school bus operations, including a description of (1) the geographic service area that the applicant or grantee intends to serve; (2) the schools and school districts that the applicant or grantee intends to serve; (3) the anticipated ridership related to the school bus operation; (4) an estimation of the number and types of buses that the applicant or grantee intends to utilize to provide the school bus operation; (5) the duration of the school bus operation; (6) the frequency of daily service related to the school bus operation; (7) an analysis regarding the extent to which the proposed school bus operation complies with local, state, and Federal safety laws; (8) a summary of the fully allocated costs related to the school bus operation; and (9) the rate that the applicant or grantee intends to charge for the school bus operation. FTA believes that this information will help it determine whether the proposed service is adequate, safe, and at a reasonable rate. FTA invites the public to comment on the components of a fully allocated cost analysis that it should require from its applicants and grantees. Second, FTA will open an electronic docket, entitled ‘‘Petition for an Exception Docket,’’ at https:// www.regulations.gov corresponding to the Petition for an Exception. Instead of requiring applicants and grantees to provide notices in local newspapers, FTA intends to utilize current technology, particularly the electronic docket, to provide more accessibility to the public regarding a Petition for an Exception. FTA also believes that the utilization of this technology will make FTA action more transparent. Third, FTA will transmit a copy of the notice and its docket number to the E:\FR\FM\18NOP1.SGM 18NOP1 68380 Federal Register / Vol. 73, No. 223 / Tuesday, November 18, 2008 / Proposed Rules applicant or grantee and to the National School Transportation Association (NSTA). NSTA may circulate the notice to any appropriate private school bus operators that provide school bus operations in a particular geographic service area. Furthermore, persons interested in monitoring petitions submitted to FTA for which a docket is opened may sign up for the Regulations.gov list serv. Through this service, Regulastions.gov will notify subscribers each time a party submits a document to the docket. Fourth, any private operator having a place of business in the applicant’s or grantee’s geographic service area may, within thirty days of the notice’s docketing date, submit comments on the Petition for an Exception Docket demonstrating the extent to which it can provide school bus operations that constitute adequate transportation at a reasonable rate and in conformance with applicable safety standards. FTA invites the public to comment on whether it should allow a private operator a different timeframe for commenting on a proposed school bus operation. Fifth, the applicant or grantee, after evaluating any comments from private school bus operators, may petition the Chief Counsel for an exception to the school bus operations prohibition at 49 CFR 605.10. The applicant or grantee must demonstrate to the satisfaction of the Chief Counsel that no private operator having a place of business in the applicant’s or grantee’s geographic service area can provide school bus operations that constitute adequate transportation at a reasonable rate and in conformance with applicable safety standards. The Chief Counsel subsequently will issue a decision that either grants or denies the applicant’s or grantee’s Petition for an Exception. c. Use of Project Equipment (§ 605.12) FTA proposes to delete the regulatory provision at 49 CFR 605.12 regarding the use of project equipment. FTA recently amended its charter service regulations at 49 CFR part 604, and FTA believes that the current provision at 49 CFR 605.12 is no longer applicable.45 dwashington3 on PRODPC61 with PROPOSALS d. Tripper Service (§ 605.13) FTA proposes to delete the regulatory provision at 49 CFR 605.13 regarding tripper service. Although there is no statutory definition for the term, FTA included the concept of ‘‘tripper service’’ in its school bus operations 45 See Charter Service Final Rule, 73 FR 2,326 (Jan. 14, 2008). VerDate Aug<31>2005 14:36 Nov 17, 2008 Jkt 217001 regulations.46 FTA defines ‘‘tripper service’’ as: [R]egularly 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. Buses used in tripper service must be clearly marked as open to the public and may not carry designations such as ‘‘school bus’’ or ‘‘school special.’’ These buses may stop only at a grantee or operator’s regular service stop. All routes traveled by tripper buses must be within a grantee’s or operator’s regular route service as indicated in their published route schedules.47 Under this definition of tripper service, 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 began to allow 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.48 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.’’ 49 FTA reaffirmed this particular interpretation of tripper service in its October 12, 2007 RGRTA determination by permitting RGRTA to operate four loop-like route 46 The Urban Mass Transportation Administration (UMTA), now the Federal Transit Administration (FTA), did not include the term ‘‘tripper service’’ in its proposed school bus operations regulation. See 40 FR 25,309–14 (June 13, 1975). UMTA introduced the term ‘‘tripper service’’ into its final rule with no explanation as to why it inserted that regulatory term. See 41 FR 128 (Apr. 1, 1976). 47 49 CFR 605.3. 48 See In re Erie Metropolitan Transit Authority 1, 4 (1989). 49 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). PO 00000 Frm 00017 Fmt 4702 Sfmt 4702 extensions, each only several blocks in length, to accommodate the needs of school students.50 FTA has not, however, allowed a grantee 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 solely to accommodate the needs of school students.51 In addition to minor modifications to route paths, FTA previously 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.’’ 52 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.’’ 53 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.54 FTA finds the definition of tripper service and its subsequent interpretations problematic. FTA believes that a grantee, pursuant to the jurisprudence of the Courts in Lamers and Rochester-Genesee Regional Transportation Authority, may believe that it could substantially restructure its public transportation operation solely to accommodate the needs of a local school district and its students while displacing private school bus operators and their employees provided the system keeps the service open to the public even though no member of the public likely will ride those particular 50 Letter from Federal Transit Administration to Rochester-Genesee Regional Transportation Authority at 6 (Oct. 12, 2007). 51 Id. at 2–6. 52 Travelways at 7. 53 United States ex rel. Lamers v. City of Green Bay, 168 F.3d 1013, 1019 (7th Cir. 1999). 54 Rochester-Genesee Reg’l Transp. Auth., 531 F.Supp.2d 494, 509. E:\FR\FM\18NOP1.SGM 18NOP1 dwashington3 on PRODPC61 with PROPOSALS Federal Register / Vol. 73, No. 223 / Tuesday, November 18, 2008 / Proposed Rules routes. This practice would produce unfair competition for private school bus operators which is precisely the result Congress sought to prevent when enacting 49 U.S.C. 5323(f). In this notice, FTA proposes to codify in regulatory text the type of service that it historically has allowed through administrative adjudications. FTA proposes to eliminate the term ‘‘tripper service,’’ and instead, create exemptions to FTA’s proposed school bus operations prohibition at 49 CFR 605.11. This regulatory scheme would allow a grantee to continue to use various fare collection or subsidy systems, modify the frequency of its service, and make de minimis route alterations to accommodate the needs of school students and personnel. To illustrate, FTA would allow a grantee to issue fare cards to students and school personnel and it would allow a grantee to accept a payment from a school or a school district in exchange for service. FTA would allow a grantee to modify the frequency of its service, meaning, FTA would allow a grantee to run more buses on routes in the morning when school begins and more buses in the afternoon when school ends. With respect to the de minimis route alterations, FTA would allow a grantee to make one-half mile or less route alterations from routes within a one-half mile or less radius of a school building to accommodate the needs of students and school personnel.55 FTA invites the public to comment on whether it should utilize a different measurement, such as time traveled or route percentage. For example, should FTA allow route deviations where a bus makes a five minute deviation from a route? Should FTA allow route deviations that constitute ten percent of the route? Alternatively, should FTA allow route deviations that are greater than one-half mile? FTA also invites public comment on whether it should allow grantees to make route deviations at multiple portions of routes or only within the immediate vicinity of school buildings. FTA notes that, through this proposed regulatory scheme, a grantee may provide services pursuant to an exemption without a formal application to FTA, similar to a grantee’s existing opportunity to provide ‘‘tripper service’’ without a formal application to FTA. FTA’s intent here is to clarify in regulatory text the type of service that 55 Historically, FTA has allowed grantees to make route deviations that are several blocks in length within the immediate vicinity of school buildings. See Travelways at 7; Letter from Federal Transit Administration to Rochester-Genesee Regional Transportation Authority at 6 (Oct. 12, 2007). VerDate Aug<31>2005 14:36 Nov 17, 2008 Jkt 217001 it will allow and to simplify the organization of its school bus operations regulatory scheme—FTA’s intent is not to overhaul the types of service that it historically has allowed. FTA does not intend to create additional regulatory burdens for grantees that wish to provide this type of service. e. Agreement (§ 605.14) FTA proposes to consolidate the regulatory provisions at 49 CFR 605.14 and 49 CFR 605.15 regarding a school bus agreement and move those provisions to a new 49 CFR 605.11. Through this proposed provision, FTA intends to simplify the requirements regarding school bus agreements. Under the current regulatory scheme, FTA requires an applicant to enter into an agreement with the Administrator whereby the applicant agrees ‘‘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.’’ 56 Under current practice, FTA’s grantees and applicants submit and certify to FTA an ‘‘Annual List of Certifications and Assurances for Federal Transit Administration Grants and Cooperative Agreements’’ and grantees subscribe to FTA’s ‘‘Master Agreement.’’ Under the terms of these documents, the applicants and grantees agree not to provide school bus operations. To simplify FTA’s requirements regarding school bus agreements and to codify current practice, FTA proposes to allow applicants to satisfy the requirements regarding school bus agreements by submitting and certifying to FTA an ‘‘Annual List of Certifications and Assurances for Federal Transit Administration Grants and Cooperative Agreements’’ and by subscribing to FTA’s ‘‘Master Agreement.’’ No separate school bus agreement is necessary under this proposal. f. Content of Agreement (§ 605.15) For the reasons discussed above, FTA proposes to consolidate the regulatory provisions at 49 CFR 605.14 and 49 CFR 605.15 regarding a school bus agreement and move those provisions to a new 49 CFR 605.11. FTA intends to simplify the requirements regarding school bus agreements and proposes to provide financial assistance to an applicant or a grantee only if ‘‘the applicant or grantee agrees not to provide school bus operations exclusively for students and school personnel in competition with a private school bus operator.’’ 56 49 PO 00000 CFR 605.14. Frm 00018 Fmt 4702 Sfmt 4702 68381 g. Notice (§ 605.16) FTA proposes to delete 49 CFR 605.16 regarding the notice requirements for an exemption to FTA’s school bus operations prohibition in light of FTA’s proposed procedures in Subpart B explained above. h. Certification in Lieu of Notice (§ 605.17) FTA proposes to delete 49 CFR 605.17 regarding the opportunity for a certification in lieu of notice corresponding to an exemption to FTA’s school bus operations prohibition in light of FTA’s proposed procedures in Subpart B explained above. i. Comments by Private School Bus Operators (§ 605.18) FTA proposes to delete 49 CFR 605.18 regarding comments from private school bus operators on an applicant’s petition for an exemption in light of FTA’s proposed procedures in Subpart B explained above. j. Approval of School Bus Operations (§ 605.19) FTA proposes to delete 49 CFR 605.19 regarding FTA’s approval of an applicant’s school bus operations in light of FTA’s proposed procedures in Subpart B explained above. 3. Subpart C—Modification of Prior Agreements and Amendment of Application for Assistance a. Modification of Prior Agreements (§ 605.20) FTA proposes to delete the regulatory provision at 49 CFR 605.20 regarding the modification of prior school bus agreements in light of FTA’s proposed school bus agreement requirements in Subpart B explained above. FTA proposes to replace this provision with amended complaint procedures as explained in Subpart D below. b. Amendment of Applications for Assistance (§ 605.21) FTA proposes to delete the regulatory provision at 49 CFR 605.21 regarding the amendment of applications for assistance in light of FTA’s proposed school bus agreement requirements in Subpart B explained above. FTA proposes to replace this provision with amended complaint procedures as explained in Subpart D below. 4. Subpart D—Complaint Procedures and Remedies Generally, FTA proposes to reorganize its complaint procedures and remedies under a proposed ‘‘Subpart C— Complaint Procedures and Remedies’’ at 49 CFR 605.20–605.31. E:\FR\FM\18NOP1.SGM 18NOP1 68382 Federal Register / Vol. 73, No. 223 / Tuesday, November 18, 2008 / Proposed Rules a. Filing a Complaint (§ 605.30) i. Centralized Decision-Making Through the Chief Counsel Under FTA’s existing school bus operations regulations, any interested party may file a written complaint with the Administrator alleging a violation of 49 CFR part 605.57 FTA requires the complainant to write its complaint, to specify in detail the potential violation, and to provide evidence substantiating the allegation.58 FTA proposes to restructure and modify this section. Under the existing regulation, the Administrator issues school bus operations decisions. In practice, the Administrator delegates this authority to each of FTA’s ten Regional Administrators. FTA finds that this practice may breed inconsistencies in decision-making and school bus operations guidance. Different regions, under different administrations, may issue conflicting decisions. To remedy this potential conflict, FTA proposes to issue decisions centrally through the Chief Counsel. This system will ensure consistency in decision-making and school bus operations guidance. ii. Time Limit for Filing a Complaint Under the current regulatory scheme, FTA does not impose a time limit on parties that wish to file a complaint alleging a violation of 49 CFR part 605. FTA finds this regulatory scheme problematic because a party may believe that it may file a complaint alleging a school bus operations violation years after the potential violation occurred. At that point, valuable evidence may be lost or destroyed. Under FTA’s proposal, the complainant must file its complaint with the Chief Counsel within ninety days after the alleged event giving rise to the complaint occurred. FTA invites the public to comment on whether it should impose a different time limit on parties wishing to file a complaint under 49 CFR part 605. dwashington3 on PRODPC61 with PROPOSALS iii. Burden of Persuasion Under the current regulatory scheme, FTA does not identify which party carries the burden of persuasion in a school bus operations adjudication. In this notice, FTA proposes to impose on the complainant the burden of persuasion, that is, the complainant loses if the evidence is equally balanced. FTA notes that this is the default rule in an administrative 57 49 58 49 CFR 605.30. CFR 605.30. VerDate Aug<31>2005 14:36 Nov 17, 2008 Jkt 217001 adjudication,59 and FTA invites the public to comment on whether it should utilize some other standard. iv. Standard of Proof Under the current regulatory scheme, FTA does not identify a standard of proof in a school bus operations administrative adjudication. In this notice, FTA proposes to utilize a preponderance of the evidence standard. FTA notes that the preponderance of the evidence standard is the default standard in administrative adjudications,60 and to hold something by a preponderance of the evidence means that something is more likely so than not so. FTA invites the public to comment on whether it should utilize some other standard of proof. v. School Bus Operations Factors In practice, when evaluating a school bus operations issue under 49 CFR part 605, FTA weighs and considers a series of factors when determining whether a grantee provided school bus operations. In this notice, FTA presents factors that should provide clearer guidance in its school bus operations regulations. FTA’s intent is to codify an objective standard for evaluating a potential school bus operations violation. The non-exhaustive list of factors is as follows. (1) Whether and to what extent a grantee designed and intended to design its service to meet the demands of a school or school district. If a grantee designed and intended its service to meet the demands of a school or school district, then the service is more likely to be a school bus operation. (2) Whether and to what extent the grantee controls its routes and schedules. If the grantee does not control its routes and schedules, but instead, a school or school district controls the routes and schedules at issue, then the service is more likely to be a school bus operation. (3) Whether and to what extent students’ residences and schools serve as the starting or ending points of a route. If students’ residences and schools serve as the starting or ending points of a route, then the service is more likely to be a school bus operation. (4) Whether and to what extent the grantee publicizes the service at issue. If the grantee does not publicize the service at issue, for example by not publicizing the service in its regularly published route schedules and maps, then the service is more likely to be a school bus operation. (5) Whether and to what extent the grantee’s service displaces private school bus operators. If the grantee’s service displaces private school bus operators, then the service is more likely to be a school bus operation. 59 See, e.g., Schaffer ex rel Schaffer v. Weast, 546 U.S. 49, 56 (2005). 60 See, e.g., Yzaguirre v. Barnhart, 58 F.App’x 460, 462 (10th Cir. 2003) (quoting Jones ex rel Jones v. Chater, 101 F.3d 509, 512 (7th Cir. 1996)). PO 00000 Frm 00019 Fmt 4702 Sfmt 4702 (6) Whether and to what extent the grantee’s service is open to the public. If the grantee’s service is open to the public, then the service is less likely to be a school bus operation. (7) The extent to which non-students use the grantee’s service. If a significant portion of non-students use the grantee’s service at issue, then the service is less likely to be a school bus operation. (8) Whether and to what extent the grantee operates its service during times when school is not in session. If the grantee operates the service at issue during times when school is not in session, then the service is less likely to be a school bus operation. (9) The frequency of the grantee’s service during times when school is in session. If the grantee frequently operates the service at issue during times when school is in session, then the service is less likely to be a school bus operation. (10) Whether and the extent to which buses stop at clearly marked regular route stops. If buses stop at clearly marked regular route stops, then the service is less likely to be a school bus operation. FTA invites the public to comment on whether it should utilize these factors or some of these factors in its analysis of a school bus operations issue. vi. Previous Oversight Findings Under 49 U.S.C. 5307(h)(2), Congress mandates FTA to conduct periodic, triennial reviews of its grantees to ensure that the grantees are in compliance with the conditions imposed on them as recipients of Federal funds.61 As a practical matter, however, a triennial review is a constrained means of monitoring compliance. In a triennial review, if FTA finds that a grantee has complied with its school bus operations regulations, then that finding should not preclude FTA from later finding, pursuant to a complaint filed under 49 CFR part 605, that a grantee has violated the school bus operations prohibition. At the time of a triennial review, FTA may not have all the pertinent facts when it makes a school bus operations finding. FTA may find new facts in a complaint proceeding. Therefore, FTA proposes to add a provision in its school bus operations regulations that, ‘‘Any previous oversight findings of compliance with the Federal Transit Administration’s school bus operations regulations will not preclude the Chief Counsel from finding a violation of this part.’’ vii. Independent Investigation Under the current regulatory scheme, the Administrator may investigate a grantee if the Administrator believes 61 49 E:\FR\FM\18NOP1.SGM U.S.C. 5307(h)(2). 18NOP1 Federal Register / Vol. 73, No. 223 / Tuesday, November 18, 2008 / Proposed Rules that it has violated 49 CFR part 605.62 FTA proposes to amend this section to allow the Chief Counsel to initiate and conduct an investigation if it has reasonable suspicion to believe that a grantee violated 49 CFR part 605. dwashington3 on PRODPC61 with PROPOSALS b. Notification to the Respondent (§ 605.31) Pursuant to 49 CFR 605.31, when a complainant files a complaint, or if the Administrator has reason to believe that grantee violated FTA’s school bus operations regulations, the Administrator notifies the grantee that it may have violated this 49 CFR part 605.63 FTA proposes to overhaul this provision and insert new complaint procedures at 49 CFR 605.21. i. Complaint Procedures Under the current regulatory scheme, FTA imposes few requirements on parties with respect to the format and content of their submissions in a school bus operations proceeding. FTA finds that this system is problematic because parties often do not provide FTA with the facts that it needs to make wellinformed decisions. Furthermore, the parties often do not apply the facts of their cases to applicable laws. Therefore, FTA proposes to update its school bus operations regulations to require parties to provide clarity in their submissions. Under FTA’s proposal, FTA would require a complainant to identify a potential violator of 49 CFR part 605, the specific provisions of 49 CFR part 605 that were violated, any relevant documentation, a brief statement of the relevant facts, and the harm suffered by the complainant. Additionally, FTA would require parties, in their responses, replies, and rebuttals, to provide FTA with a brief statement of the relevant facts, admissions or denials where appropriate, affirmative defenses where appropriate, and any supporting documentation. FTA also proposes to allow parties to request extensions of time, not to exceed thirty days for good cause, to file a submission under this section. Furthermore, under the current regulatory scheme, a respondent has only one opportunity—in its response— to make its case to FTA. A respondent is unable to rebut a complainant’s reply which may include additional facts or arguments that may merit an additional opportunity for the respondent to file a submission. In FTA’s proposal, FTA would allow a respondent to file a rebuttal to a complainant’s reply within 62 49 63 49 CFR 605.31. CFR 605.31. VerDate Aug<31>2005 14:36 Nov 17, 2008 ten days of the date of service of the reply. Additionally, under the current regulatory scheme, FTA allows a respondent thirty (30) days to respond to a complaint.64 FTA allows the complainant a ‘‘like time’’ to reply to the response. FTA finds that this timeframe is ambiguous because FTA does not specify the duration of the ‘‘like time.’’ In this notice, to provide clarity, FTA proposes to allow a complainant to reply to a response within twenty (20) days from the date of service of the respondent’s response. conduct adjudicative proceedings electronically. FTA believes that electronic dockets promote transparency in the Federal government, preserve public documents in an easily accessible public forum, and provide parties with a simple and efficient method of filing submissions in administrative adjudications. For these reasons, FTA proposes to add 49 CFR 605.25 to create an electronic filing system for its complaint process through Regulations.gov. ii. Third Party Intervention Under the current regulatory scheme, FTA has no explicit authority to allow third parties to intervene in a school bus operations proceeding. In some instances, a third party may be integral to a proceeding because the existing parties may not adequately represent the third party’s interests and the third party consequently may suffer harm. Therefore, FTA proposes to add 49 CFR 605.22 to explicitly allow a third party to intervene in a school bus operations proceeding if it demonstrates to the satisfaction of the Chief Counsel that the parties to the proceeding do not adequately represent the third party’s interests and that it will suffer harm if the Chief Counsel does not grant its motion to intervene. Under the current regulatory scheme, FTA does not require parties to serve copies of their submissions to opposing parties. FTA finds this system problematic because parties may not be aware of complaints and other submissions filed with FTA on a timely basis. In this notice, FTA proposes to require parties to serve copies of all submissions that they file with FTA on all other opposing parties. iii. Dismissal of a Complaint FTA proposes to add 49 CFR 605.23 to provide the Chief Counsel with authority to dismiss a complaint or any claim in a complaint, with prejudice, if the complaint or claim is outside FTA’s jurisdiction, the complainant does not state a claim, or the complainant lacks standing. iv. Incomplete Complaint FTA proposes to add 49 CFR 605.24 to provide the Chief Counsel with authority to dismiss a complaint without prejudice if the complaint is deficient as to one or more of the requirements set forth in FTA’s proposed 49 CFR 605.21. v. Filing of a Complaint Under the current regulatory scheme, FTA requires parties to submit to FTA paper submissions in a school bus operations proceeding. Since 1976, the year that FTA promulgated its school bus operations regulations, technology has undergone huge advancements. For example, electronic dockets available through Regulations.gov provide opportunities for Federal agencies to vi. Service vii. Appeal From Chief Counsel’s Decision Under the current regulatory scheme, a party adversely affected by a decision may not file an appeal with FTA before filing an action in United States District Court. FTA finds that this system has prevented FTA from remedying issues administratively so that parties need not seek relief in expensive and protracted litigation before United States courts. In this notice, FTA proposes to add 49 CFR 605.29 to allow parties adversely affected by a decision of the Chief Counsel to file an appeal with the Administrator. On appeal, the Administrator shall review the entire administrative record within the context of any issue on appeal, and the Administrator shall issue a final decision. FTA also proposes to amend 49 CFR 605.30 to authorize the Administrator to review the Chief Counsel’s decision at his or her own motion. FTA invites the public to comment on whether it should utilize a different standard of review on appeal. c. Accumulation of Evidentiary Material (§ 605.32) Under the current regulatory scheme, the Administrator allows the respondent to respond to a complaint within thirty days of receipt of the complaint.65 The Administrator allows the complainant to reply to the respondent’s response within ‘‘a like period.’’ 66 The Administrator may undertake such 65 49 64 49 Jkt 217001 68383 PO 00000 CFR 605.32. Frm 00020 Fmt 4702 66 49 Sfmt 4702 E:\FR\FM\18NOP1.SGM CFR 605.32. CFR 605.32. 18NOP1 68384 Federal Register / Vol. 73, No. 223 / Tuesday, November 18, 2008 / Proposed Rules further investigation as the Administrator deems necessary.67 FTA proposes to amend its procedures for accumulating evidentiary material with its provisions at 49 CFR 605.20–605.26 as discussed above. d. Adjudication (§ 605.33) Under the current regulatory scheme, the Administrator issues a written decision at the conclusion of a school bus operations proceeding.68 If the Administrator determines that a grantee violated 49 CFR part 605, then the Administrator shall order such remedial measures as the Administrator deems appropriate.69 FTA proposes to reorganize this section by moving the provision regarding the Administrator’s remedial measures to 49 CFR 605.28— the proposed section that outlines the remedies available to FTA. dwashington3 on PRODPC61 with PROPOSALS e. Remedy Where There Has Been a Violation of the Agreement (§ 605.34) FTA proposes to amend the provisions at 49 CFR 605.34 regarding remedies for a violation of the school bus agreement. Under the Federal-Aid Highway Act of 1973, Congress instructed the Urban Mass Transportation Administration (UMTA), now FTA, that if it found a violation of the school bus operations prohibition, then it ‘‘shall bar such applicant from receiving any other federal financial assistance. * * *’’ 70 FTA subsequently implemented this statutory provision at 49 CFR 605.34 which states, ‘‘If the Administrator determines * * * that there has been a violation of the terms of the agreement, he may bar a grantee or operator from the receipt of further financial assistance for mass transportation facilities and equipment.’’ 71 Under this framework, the Administrator did not exercise the remedy provision at 49 CFR 605.34 because such an action would completely bar a grantee or operator from the receipt of financial assistance and significantly obstruct their ability to provide public transportation. That changed when Congress enacted the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users, and amended 49 U.S.C. 5323(f) as follows, ‘‘If the Secretary finds that an applicant, governmental authority, or publicly owned operator has violated the agreement * * * the Secretary shall bar a recipient or an operator from 67 49 CFR 605.32. CFR 605.33(a). 69 49 CFR 605.33(b). 70 Federal-Aid Highway Act sec. 164(b). 71 49 CFR 605.34. 68 49 VerDate Aug<31>2005 14:36 Nov 17, 2008 Jkt 217001 receiving Federal transit assistance in an amount the Secretary considers appropriate.’’ 72 FTA intends to implement the amended statutory provision at 49 U.S.C. 5323(f). Using the language of 49 U.S.C. 5323(f), FTA proposes the following remedies provision at 49 CFR 605.28, ‘‘If the Chief Counsel determines, pursuant to this subpart, that a grantee has violated this part or the terms of the agreement, then the Chief Counsel shall bar the grantee from the receipt of further financial assistance for public transportation in an amount that the Chief Counsel considers appropriate.’’ Additionally, FTA proposes to authorize the Chief Counsel to issue cease and desist orders where appropriate. FTA believes that this remedy will allow the Chief Counsel some additional flexibility when issuing remedies and tailoring those remedies to the severity of the violation. Finally, FTA proposes to authorize the Chief Counsel to issue any other such remedies that the Chief Counsel believes are appropriate. FTA currently authorizes the Administrator to issue such remedies at 49 CFR 605.33(b). To illustrate, FTA may require a violator of 49 CFR part 605 to submit a remediation plan to FTA whereby it would outline a plan to restructure its service so that it complies with FTA’s school bus operations regulations. FTA believes that this remedy will allow the Chief Counsel some additional flexibility when issuing remedies and tailoring those remedies to the severity of the violation. f. Judicial Review (§ 605.35) FTA proposes to restructure its regulatory scheme by moving the judicial review provisions at 49 CFR 605.35 to a proposed 49 CFR 605.31. 5. Subpart E—Reporting and Records a. Reports and Information (§ 605.40) Under the current regulatory scheme, ‘‘The Administrator may order any grantee or operator for the grantee, to file special or separate reports setting forth information relating to any transportation service rendered by such grantee or operator, in addition to any other reports required by this part.’’ 73 FTA does not propose to amend this section. b. Proposed Subpart E—Grandfathering of Existing School Bus Operations FTA proposes to add 49 CFR 605.50 to include grandfathering provisions in 72 SAFETEA–LU 73 49 PO 00000 sec. 3023. CFR 605.40. Frm 00021 Fmt 4702 Sfmt 4702 its amended regulatory framework. FTA recognizes that some grantees may need significant time to modify their school bus operations to comply with FTA’s amended 49 CFR part 605. Therefore, FTA proposes to allow these grantees to modify their school bus operations to comply with FTA’s amended 49 CFR part 605 by June 30, 2010. With this timeframe, FTA proposes to give these grantees until the end of the next academic year to comply with this part. FTA also proposes to allow grantees to provide school bus operations to schools or school districts if the grantee provided the school bus operations without payment from the schools or school districts prior to August 1, 2008. If a grantee receives payment from a school or school district for school bus operations on or after August 1, 2008, then this grandfathering provision no longer would apply. 6. Appendix A to Part 605 Under the current regulatory scheme, FTA attaches Appendix A to 49 CFR part 605 which is an opinion of the Comptroller General of the United States dated December 7, 1966. The Comptroller General discusses the definition of the term ‘‘incidental.’’ FTA used this discussion to clarify its definition of the term ‘‘incidental’’ as used in its charter service regulations at 49 CFR part 604 and its school bus operations regulations at 49 CFR part 605. FTA recently promulgated amended charter service regulations at 49 CFR part 604, and FTA proposes to delete Appendix A to 49 CFR part 605 because it is no longer applicable in light of FTA’s amended charter service regulations. III. Rulemaking Analyses and Notices A. Executive Order 12866: Regulatory Planning and Review/DOT Regulatory Policies and Procedures Under Executive Order 12866, the U.S. Department of Transportation (DOT) must examine whether this proposed rule is a ‘‘significant regulatory action.’’ A significant regulatory action is subject to the Office of Management and Budget (OMB) review and the requirements of the Executive Order. Executive Order 12866 defines ‘‘significant regulatory action’’ as one that is likely to result in a rule that may: (1) Have an annual effect on the economy of $120 million or more or adversely affect in a material way the economy; a sector of the economy; productivity; competition; jobs; the environment; public health or safety; or state, local, or tribal governments or communities; (2) Create a serious E:\FR\FM\18NOP1.SGM 18NOP1 Federal Register / Vol. 73, No. 223 / Tuesday, November 18, 2008 / Proposed Rules inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles set forth in the Executive Order. This rulemaking is not a significant regulatory action within the meaning of Executive Order 12866, and, therefore, this rulemaking was not reviewed by OMB. Further, this rule is not significant under DOT’s regulatory policies and procedures. This Notice of Proposed Rulemaking contains revisions that are clarifying in nature. FTA does not anticipate this rule to adversely affect, in a material way, any sector of the economy. Through this rulemaking, FTA proposes to effectuate the purpose of 49 U.S.C. 5323(f) and to clarify provisions to protect private school bus operators from unfair competition by federally subsidized public transit agencies; thus, these changes should increase economic opportunities for private school bus operators. Additionally, this proposed rule would not create a serious inconsistency with another agency’s action or materially alter the budgetary impact of any entitlements, grants, user fees, or loan programs. Consequently, a full regulatory evaluation is not required. FTA also estimates the costs associated with this rule to be minimal because the rule clarifies definitions and exemptions. dwashington3 on PRODPC61 with PROPOSALS B. Executive Order 13132: Federalism Executive Order 13132 requires agencies to assure meaningful and timely input by state and local officials in the development of regulatory policies that may have a substantial, direct effect on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. FTA has analyzed this Notice of Proposed Rulemaking in accordance with the principles and criteria contained in Executive Order 13132, and FTA has determined that this Notice of Proposed Rulemaking would not have sufficient federalism implications to warrant the preparation of a federalism assessment. FTA has also determined that this Notice of Proposed Rulemaking would not preempt any state law or regulation or affect a state’s ability to discharge traditional state governmental functions. VerDate Aug<31>2005 14:36 Nov 17, 2008 Jkt 217001 C. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments Executive Order 13175 requires agencies to assure meaningful and timely input from Indian tribal government representatives in the development of rules that ‘‘significantly or uniquely affect’’ Indian communities and that impose ‘‘substantial and direct compliance costs’’ on such communities. FTA has analyzed this proposed rule under Executive Order 13175 and FTA believes that the proposed action would not have substantial direct effects on one or more Indian tribes; would not impose substantial direct compliance costs on Indian tribal governments; and would not preempt tribal laws. Therefore, a tribal impact statement is not required. D. National Environmental Policy Act As a rulemaking process, FTA concludes that this proposed action is categorically excluded from the requirements of the National Environmental Policy Act (NEPA) and FTA’s NEPA regulation at 23 CFR 771.117(c)(20). Although FTA’s NEPA regulation requires some level of environmental review even for those activities that are categorically excluded if they involve ‘‘unusual circumstances,’’ 23 CFR 771.117(b), FTA finds that the proposed action, if finalized, would not result in the unusual circumstances that would cause FTA to perform an environmental review. Although commenters on FTA’s Notice of Proposed Policy Statement on FTA’s School Bus Operations Regulations 74 raised concerns about the environmental effects of the operation of school buses relative to the operation of transit buses, FTA lacks the evidence and data on the numerous variables necessary to predict differences between operating the various types of buses that are used in both public and private school transportation. Furthermore, it is impossible to predict the likely minor changes in the types of buses used that would result from FTA’s proposal. 68385 F. Regulatory Flexibility Act When an agency issues a rulemaking proposal, the Regulatory Flexibility Act (RFA) requires the agency to ‘‘prepare and make available for public comment an initial regulatory flexibility analysis’’ which will ‘‘describe the impact of the proposed rule on small entities.’’ 76 Under section 605 of the RFA, Congress allows an agency to certify a rule, in lieu of preparing an analysis, if the agency does not expect the proposed rulemaking to have a significant economic impact on a substantial number of small entities. The nature of this rulemaking is to effectuate the purpose of 49 U.S.C. 5323(f) and to prevent unfair competition by federally subsidized public transit agencies with private school bus operators. FTA invites comment on the economic impact of the proposed regulations on small entities. G. Unfunded Mandates Reform Act of 1995 In this notice, FTA does not propose to impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995.77 This Notice of Proposed Rulemaking will not result in the expenditure of non-Federal funds by state, local, and Tribal governments, in the aggregate, or by the private sector, of $120.7 million in any one year.78 List of Subjects in 49 CFR Part 605 School bus operations. In consideration of the foregoing, FTA amends Chapter VI of Title 49 of the Code of Federal Regulations as set forth below. Title 49—Transportation 1. Revise part 605 to read as follows: PART 605—SCHOOL BUS OPERATIONS Subpart A—General Sec. 605.1 Purpose. 605.2 Scope. 605.3 Definitions. E. Paperwork Reduction Act Under the Paperwork Reduction Act of 1995 75 (PRA), a Federal agency must obtain approval from OMB for each collection of information it conducts, sponsors, or requires through regulations. This Notice of Proposed Rulemaking does not impose any paperwork collection requirements. Subpart B—School Bus Operations Prohibition and Agreement 605.10 Prohibition. 605.11 Agreement. 605.12 Exemptions. 605.13 Exceptions. Subpart C—Complaint Procedures and Remedies 605.20 General. 605.21 Complaint Procedures. 76 5 U.S.C. 603(a) (2006). Mandates Reform Act of 1995, Public Law 104–4, 109 Stat. 48 (1995). 78 See 2 U.S.C. 1532 (2006). 77 Unfunded 74 73 FR 28,790 (May 19, 2008). 44 U.S.C. Chapter 35 (2006). 75 See PO 00000 Frm 00022 Fmt 4702 Sfmt 4702 E:\FR\FM\18NOP1.SGM 18NOP1 68386 Federal Register / Vol. 73, No. 223 / Tuesday, November 18, 2008 / Proposed Rules 605.22 Third Party Intervention. 605.23 Dismissal of a Complaint.605.24 Incomplete Complaint. 605.25 Filing of a Complaint. 605.26 Service. 605.27 Adjudication. 605.28 Remedies. 605.29 Appeal from the Chief Counsel’s Decision. 605.30 Administrator’s Discretionary Review of the Chief Counsel’s Decision. 605.31 Judicial Review of a Final Decision and Order. Subpart D—Reporting and Records 605.40 Reports and Information. Subpart E—Grandfathering of Existing School Bus Operations 605.50 Grandfathering Provisions. Authority: 49 U.S.C. 5323(f); 49 CFR 1.51. Subpart A—General § 605.1 Purpose. (a) The purpose of this part is to prescribe policies and procedures to implement 49 U.S.C. 5323(f). (b) By the terms of 49 U.S.C. 5323(f), financial assistance under this chapter may be used for a capital project, or to operate public transportation equipment or a public transportation facility, only if the applicant agrees not to provide schoolbus transportation that exclusively transports students and school personnel in competition with a private schoolbus operator. § 605.2 Scope. These regulations apply to all recipients of financial assistance for the construction or operation of facilities and equipment for use in providing public transportation under 49 U.S.C. Chapter 53 and 23 U.S.C. 133 and 142. dwashington3 on PRODPC61 with PROPOSALS § 605.3 Definitions. (a) Terms defined at 49 U.S.C. Chapter 53 shall have the same meaning in this part. (b) For purposes of this part: The Acts means the Urban Mass Transportation Act of 1964, as amended and codified at 49 U.S.C. Chapter 53, and 23 U.S.C. 133 and 142. Administrator means the Federal Transit Administration Administrator or his or her designee. Adequate transportation means transportation for students and school personnel which the Chief Counsel determines conforms to applicable safety laws, is on time, poses a minimum of discipline problems, is not subject to fluctuating rates, and is operated efficiently and in harmony with state educational goals and programs. Agreement means an agreement required under 49 U.S.C. 5323(f). VerDate Aug<31>2005 14:36 Nov 17, 2008 Jkt 217001 Applicant means applicant for assistance under the Acts. Assistance means Federal financial assistance for the purchase, financing, leasing, or operation of buses and equipment and the construction, financing, leasing, or operation of facilities for use in providing public transportation services under the Acts, but does not include research, development, and demonstration projects funded under the Acts. Chief Counsel means the Federal Transit Administration Chief Counsel or his or her designee. Exclusively means transportation that a reasonable person would conclude was designed primarily to accommodate school students, personnel, or equipment, without regard to demand from the non-student general public. Geographic service area means the area in which a recipient is authorized to provide public transportation service under appropriate local, state, and Federal law. Government means the Government of the United States of America. Grantee means a recipient, including a subrecipient, of assistance under the Acts. Interested party means an individual, partnership, corporation, association, public organization, private organization, or its duly authorized representative, that has a financial interest which is adversely affected by the act or acts of a grantee with respect to school bus operations. Reasonable rates means rates which are fair and equitable taking into consideration the local conditions which surround the geographic service area where the rate is in question, including the portion of Federal assistance that a grantee uses or intends to use to provide school bus operations. School bus operations means transportation by bus exclusively for school students, personnel, and equipment. Subpart B—School Bus Operations Prohibition and Agreement § 605.10 Prohibition. A grantee shall not provide, or contract to provide, school bus operations, except as provided in § 605.12 and § 605.13. § 605.11 The [Grantee, Recipient, or Applicant] agrees that it will not provide school bus operations exclusively for students and school personnel in competition with a private school bus operator, except as provided in 49 U.S.C. 5323(f), 49 CFR Part 605, and any relevant Federal Transit Administration directives. The [Grantee, Recipient, or Applicant] agrees that it will comply with all the provisions of 49 U.S.C. 5323(f), 49 CFR Part 605, and any relevant Federal Transit Administration directives. § 605.12 Exemptions. (a) The school bus operations prohibition at § 605.10 shall not apply where: (1) The grantee uses various fare collection or subsidy systems for students, the grantee modifies the frequency of service, and the grantee makes a one-half mile or less route deviation from a route within a one-half mile or less radius of a school building; (2) The grantee operates a school system in a grantee’s geographic service area and also operates a separate and exclusive school bus program for that school system; or (3) The grantee is a state or local public body or agency thereof, or a direct predecessor in interest which has acquired the function of transporting school students and personnel along with facilities to be used therefor, which provided school bus operations: (i) In the case of a grant involving the purchase of buses—anytime during the twelve (12) month period immediately prior to August 13, 1973; or (ii) In the case of a grant for construction or operating of facilities and equipment made pursuant to 49 U.S.C. Chapter 53, anytime during the twelve (12) month period immediately prior to November 26, 1974. Agreement. (a) The Federal Transit Administration shall not provide assistance under the Acts unless the applicant or grantee agrees not to provide school bus operations exclusively for students and school personnel in competition with a private PO 00000 school bus operator, except as provided in § 605.12 and § 605.13. (b) A grantee shall satisfy § 605.11(a) by submitting and certifying to the Federal Transit Administration its ‘‘Annual List of Certifications and Assurances for Federal Transit Administration Grants and Cooperative Agreements’’ and by subscribing to the Federal Transit Administration’s ‘‘Master Agreement.’’ (c) The ‘‘Annual List of Certifications and Assurances for Federal Transit Administration Grants and Cooperative Agreements’’ and the Federal Transit Administration’s ‘‘Master Agreement’’ shall state as follows: Frm 00023 Fmt 4702 Sfmt 4702 § 605.13 Exceptions. (a) Exceptions. An applicant or grantee may petition the Chief Counsel for an exception to the school bus operations prohibition at § 605.10 where private school bus operators in the applicant’s or grantee’s geographic E:\FR\FM\18NOP1.SGM 18NOP1 dwashington3 on PRODPC61 with PROPOSALS Federal Register / Vol. 73, No. 223 / Tuesday, November 18, 2008 / Proposed Rules service area are unable to provide adequate transportation at a reasonable rate and in conformance with applicable safety standards. (b) Procedures. An applicant or grantee shall provide notice to the Chief Counsel that it intends to apply for a ‘‘Petition for an Exception,’’ and the applicant or grantee shall complete the following: (1) An applicant or grantee shall send the notice required under § 605.13(b)(1) by electronic mail to the Chief Counsel at FTA.SchoolBusOperations@dot.gov. (2) An applicant or grantee shall include the following information in its notice: (i) A description of the geographic service area that the applicant or grantee intends to serve; (ii) A description of the schools and school districts that the applicant or grantee intends to serve; (iii) A description of the anticipated ridership related to the school bus operation; (iv) An estimation of the number and types of buses that the applicant or grantee intends to utilize for the school bus operation; (v) A description of the duration of the school bus operation; (vi) A description of the frequency of daily service related to the school bus operation; (vii) An analysis regarding the extent to which the proposed school bus operation complies with local, state, and Federal safety laws; (vii) A summary of the fully allocated costs related to the school bus operation; and (viii) The rate that the applicant or grantee intends to charge for the school bus operation. (c) The Federal Transit Administration shall open an electronic Petition for an Exception Docket and file the notice at https:// www.regulations.gov. (d) The Federal Transit Administration shall transmit a copy of the notice and its docket number to the applicant or grantee and the National School Transportation Association. (e) Any private operator having a place of business in the applicant’s or grantee’s geographic service area may, within thirty (30) days of the notice’s docketing date, submit comments on the Petition for an Exception Docket demonstrating the extent to which it can provide school bus operations that constitute adequate transportation at a reasonable rate and in conformance with applicable safety standards. (f) Petition for an Exception. After the thirty (30) day comment period closes, an applicant or grantee may petition the VerDate Aug<31>2005 14:36 Nov 17, 2008 Jkt 217001 Chief Counsel for an exception to the school bus operations prohibition at § 605.10 after completing the following steps: (1) The applicant or grantee shall title the petition ‘‘Petition for an Exception’’; (2) The applicant or grantee shall file the Petition for an Exception electronically in the appropriate Petition for an Exception Docket at https://www.regulations.gov or mail it to the Docket Office at 1200 New Jersey Avenue, SE., West Building Ground Floor, Room W12–140, Washington, DC 20590; (3) The applicant or grantee shall send an executed original copy of the Petition for an Exception by U.S. mail to the Chief Counsel at 1200 New Jersey Avenue, SE., East Building—5th Floor, Washington, DC 20590; and (4) The applicant or grantee shall include in its Petition for an Exception the applicant’s or grantee’s response to any comments filed in the docket before the close of the thirty (30) day comment period. (g) To qualify for an exception under this section, the applicant or grantee shall demonstrate to the satisfaction of the Chief Counsel that no private operator having a place of business in the applicant’s or grantee’s geographic service area can provide school bus operations that constitute adequate transportation at a reasonable rate and in conformance with applicable safety standards. (h) The Chief Counsel shall issue a written decision that either grants or denies the applicant’s or grantee’s Petition for an Exception. (i) If the applicant or grantee fails to satisfy any of the requirements in this section, then the Chief Counsel may dismiss the Petition for an Exception with or without prejudice. Subpart C—Complaint Procedures and Remedies § 605.20 General. (a) Standing. Any interested party affected by an alleged noncompliance of this part may file a complaint with the Chief Counsel alleging a violation or violations of this part. (b) Time Limit for Filing a Complaint. The complainant shall file its complaint with the Chief Counsel within ninety (90) days after the alleged event giving rise to the complaint occurred. (c) Burden of Persuasion. The complainant bears the burden of persuasion in a proceeding under this subpart, that is, the complainant loses if the evidence is equally balanced. (d) Standard of Proof. The standard of proof in a proceeding under this subpart PO 00000 Frm 00024 Fmt 4702 Sfmt 4702 68387 is a preponderance of the evidence standard. To hold something by a preponderance of the evidence means that something is more likely so than not so. (e) School Bus Operations Factors. The Chief Counsel may weigh and consider a variety of factors in determining whether a grantee provided, or contracted to provide, school bus operations, including, but not limited to, the following: (1) Whether and to what extent the grantee designed and intended to design its service to meet the demands of a school or school district; (2) Whether and to what extent the grantee controls its routes and schedules; (3) Whether and to what extent students’ residences and schools serve as the starting or ending points of a route; (4) Whether and to what extent the grantee publicizes the service at issue; (5) Whether and to what extent the grantee’s service displaces private school bus operators; (6) Whether and to what extent the grantee’s service is open to the public; (7) The extent to which students and non-students utilize the grantee’s service; (8) Whether and to what extent the grantee operates its service during times when school is not in session; (9) The frequency of the grantee’s service during times when school is in session; and (10) Whether and the extent to which buses stop at clearly marked regular route stops. (f) Previous Oversight Findings. Any previous oversight findings of compliance with the Federal Transit Administration’s school bus operations regulations will not preclude the Chief Counsel from finding a violation of this part, particularly when the Chief Counsel finds new facts during the course of a proceeding under this subpart which were not known or available during a triennial review. (g) Independent Investigation. If the Chief Counsel, at any time, has reasonable suspicion to believe that a grantee violated this part, then the Chief Counsel may initiate and conduct an investigation and take appropriate action pursuant to this part. § 605.21 Complaint Procedures. (a) Complaint. In its complaint, the complainant shall: (1) Title its complaint ‘‘School Bus Operations Complaint’’; (2) State the name and address of each grantee that is the subject of the complaint, and, with respect to each E:\FR\FM\18NOP1.SGM 18NOP1 dwashington3 on PRODPC61 with PROPOSALS 68388 Federal Register / Vol. 73, No. 223 / Tuesday, November 18, 2008 / Proposed Rules grantee, state the specific provision(s) of this part that the complainant believes were violated; (3) Serve the complaint in accordance with § 605.26, along with all documents then available in the exercise of reasonable diligence that are offered in support of the complaint, upon each grantee named in the complaint as being responsible for the alleged actions(s) or omission(s) upon which the complaint is based; (4) Provide a concise but complete statement of the facts relied upon to substantiate each allegation; and (5) Describe how the complainant was directly and substantially affected by the action(s) or omission(s) of the grantee(s). (b) Withdrawal of Complaint. The complainant may withdraw a complaint at any time by serving a ’’Notification of Withdrawal’’ on the Chief Counsel and the respondent. (c) Docketing of Complaint. Unless the Chief Counsel dismisses the complaint pursuant to this subpart, the Chief Counsel shall notify the complainant and respondent that the Chief Counsel received the complaint and that the complaint has been docketed. (d) Response. (1) The respondent shall have thirty (30) days from the date of service of the Chief Counsel’s notification under § 605.21(a)(3) to file a response. (2) In its response, the respondent shall provide a concise but complete statement of the facts upon which the respondent relies to substantiate its answers, admissions, denials, or averments. (3) In its response, the respondent shall provide supporting documentation upon which the respondent relies. (4) In its response, the respondent shall admit or deny each allegation made in the complaint or state that it is without sufficient knowledge or information to admit or deny an allegation. (5) In its response, the respondent shall assert any affirmative defense. (6) In its response, the respondent may make a motion to dismiss the complaint, or any portion thereof, with a supporting memorandum of points and authorities. (e) Reply. (1) The complainant may file a reply within twenty (20) days of the date of service of the respondent’s response. (2) In its reply, the complainant shall provide a concise but complete statement of the facts upon which the complainant relies to substantiate its answers, admissions, denials, or averments. VerDate Aug<31>2005 14:36 Nov 17, 2008 Jkt 217001 (3) In its reply, the complainant shall provide supporting documentation upon which the complainant relies. (f) Rebuttal. (1) The respondent may file a rebuttal within ten (10) days of the date of service of the reply. (2) In its rebuttal, the respondent shall provide a concise but complete statement of the facts upon which the respondent relies to substantiate its answers, admissions, denials, or averments. (3) In its rebuttal, the respondent shall provide supporting documentation upon which the respondent relies. (g) Extensions of Time. A party may request from the Chief Counsel an extension of time, not to exceed thirty (30) days, for good cause, to file a submission with the Chief Counsel under this section. The Chief Counsel may grant an extension of time to a party as he or she deems appropriate. (h) Evidentiary Hearing. The Chief Counsel, as he or she deems appropriate, may hold an evidentiary hearing to allow each party to submit evidence under this part. § 605.22 Third Party Intervention. (a) Any interested party may submit a motion to the Chief Counsel requesting intervention in a proceeding under this subpart. (b) The party requesting intervention shall demonstrate to the satisfaction of the Chief Counsel that the parties to the proceeding do not adequately represent the third party’s interests and that it will suffer harm if the Chief Counsel does not grant its motion to intervene. (c) The Chief Counsel may grant or deny the motion to intervene. § 605.23 Dismissal of a Complaint. (a) The Chief Counsel may dismiss a complaint or any claim in a complaint, with prejudice, if: (1) On its face, it appears to be outside the jurisdiction of the Federal Transit Administration under the Acts; (2) On its face, it does not state a claim that warrants an investigation or further action by the Federal Transit Administration; or (3) The complainant lacks standing to file a complaint under this part. (b) The Chief Counsel shall provide reasons for dismissing a complaint or any claim in the complaint. § 605.24 Incomplete Complaint. (a) If the Chief Counsel does not dismiss a complaint under § 602.23, but the complaint is deficient as to one or more of the requirements set forth in § 605.21, then the Chief Counsel may dismiss the complaint. (b) If the Chief Counsel dismisses a complaint under this section, then the PO 00000 Frm 00025 Fmt 4702 Sfmt 4702 Chief Counsel shall dismiss the complaint without prejudice and the complainant may re-file a complaint after amendment to correct the deficiency. (c) The Chief Counsel shall include in the dismissal under this section the reasons for the dismissal without prejudice. § 605.25 Filing of a Complaint. (a) Filing Address and Method of Filing. (1) The complainant shall file the complaint electronically in the School Bus Operations Complaint docket at https://www.regulations.gov or mail it to the Docket Office at 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12–140, Washington, DC 20590. (2) Parties shall file responses, replies, rebuttals, appeals, and responses to appeals electronically in the School Bus Operations Complaint docket at https:// www.regulations.gov or mail it to the Docket Office at 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12–140, Washington, DC 20590. (b) Date. Unless the date is shown to be inaccurate, documents filed with the Federal Transit Administration shall be deemed filed, on the earliest of: (1) The date that the party filed the document electronically in the School Bus Operations Complaint docket at https://www.regulations.gov; (2) The date of personal delivery; (3) The mailing date shown on the certificate of service; (4) The date shown on the postmark if there is no certificate of service; or (5) The mailing date shown by other evidence if there is no certificate of service and no postmark. (c) Electronic Mail or Facsimile. A document sent by electronic mail or facsimile shall not constitute service as described in this subpart. (d) Number of Copies. Each party shall send to the Chief Counsel by personal delivery or by U.S. mail return receipt requested an executed original copy of each document that it electronically files on the School Bus Operations Complaint docket. Each party shall send the executed original copy to the Chief Counsel at 1200 New Jersey Avenue SE., East Building—5th Floor, Washington, DC 20590. (e) Form. Each party shall type or legibly print each document that it files with the Office of Chief Counsel. In the case of docketed proceedings, the document shall include a title and the docket number, as established by the Chief Counsel, of the proceeding on the front page. (f) Signing of Documents and Other Papers. Either the complainant or a duly E:\FR\FM\18NOP1.SGM 18NOP1 Federal Register / Vol. 73, No. 223 / Tuesday, November 18, 2008 / Proposed Rules authorized representative of the complainant shall sign the original copy of each document that it files with the Office of Chief Counsel. The signature shall serve as a certification that the signer has read the document, and, based on reasonable inquiry, to the best of the signer’s knowledge, information, and belief, that the document is: (1) Consistent with this part; (2) Warranted by existing law or that a good faith argument exists for extension, modification, or reversal of existing law; and (3) Not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of the administrative process. dwashington3 on PRODPC61 with PROPOSALS § 605.26 Service. (a) Designation of Person to Receive Service. (1) In its complaint, the complainant shall: (i) State the complainant’s name, post office address, and telephone number; (ii) State the complainant’s facsimile number, if any, and e-mail addresses, if any; and (iii) Designate a person to receive service on behalf of the complainant. (2) If any of the items in paragraph (a) of this section change during the proceeding, then the complainant promptly shall file notice of the change with the Chief Counsel and shall serve the notice on each party to the proceeding. (b) Who Must be Served. Each party shall serve a copy of each document that it files with the Chief Counsel to each other party to the proceeding. Each party shall include a certificate of service on each document when the party tenders it for filing and shall certify concurrent service on each other party. Certificates of service shall be in substantially the following form: I hereby certify that I have this day served the foregoing [name of document] on the following persons at the following addresses by [specify method of service]: [list persons and addresses] Dated this llday of lll, 20l. [signature], for [party] (c) Method of Service. Unless otherwise agreed by the parties, as appropriate, the method of service is personal delivery or U.S. mail. (d) Presumption of Service. There shall be a presumption of lawful service: (1) When a person who customarily or in the ordinary course of business receives mail at the address of the party or the person designated under this section acknowledges receipt; or (2) When a properly addressed envelope, sent to the last known VerDate Aug<31>2005 14:36 Nov 17, 2008 Jkt 217001 address, has been returned as undeliverable, unclaimed, or refused. § 605.27 Adjudication. (a) Upon the conclusion of a proceeding under this subpart, the Chief Counsel shall issue a written determination as to whether a grantee has committed a violation of this part. (b) The Chief Counsel shall include an analysis and explanation of his or her findings in the determination. § 605.28 Remedies. (a) If the Chief Counsel determines that a grantee has violated this part or the terms of the agreement, then the Chief Counsel shall bar the grantee from the receipt of financial assistance for public transportation in an amount that the Chief Counsel considers appropriate. (b) If the Chief Counsel determines that a grantee has violated this part or the terms of the agreement, then the Chief Counsel may issue a cease and desist order requiring the grantee to cease and desist from the provision of the service at issue. (c) If the Chief Counsel determines, pursuant to this subpart, that a grantee has violated this part or the terms of the agreement, then the Chief Counsel may issue other remedies as the Chief Counsel determines are appropriate. § 605.29 Appeal from the Chief Counsel’s Decision. (a) Each party adversely affected by a decision of the Chief Counsel may file an appeal with the Administrator within thirty (30) days of the date of the Chief Counsel’s decision. (b) Procedures. (1) The appellant shall file the appeal electronically and consistently with § 605.25. (2) The appellant shall serve a copy of the appeal on each appellee by either personal delivery or U.S. mail consistent with § 605.26. (3) Each appellee may file a response to an appeal within twenty (20) days after the appellant serves the appeal on the appellee. (c) If a party files an appeal, then the Administrator shall review the entire administrative record and issue a final agency decision based on the administrative record that either accepts, rejects, or modifies the Chief Counsel’s decision. If a party does not file an appeal, then the Administrator may review the Chief Counsel’s decision on his or her own motion. If the Administrator finds that a party is not in compliance with this part, then the final agency order shall include a statement of corrective action, if appropriate, and identify remedies. PO 00000 Frm 00026 Fmt 4702 Sfmt 4702 68389 (d) If a party does not file an appeal, and the Administrator does not review the Chief Counsel’s decision on the Administrator’s own motion, then the Chief Counsel’s decision shall take effect as the final agency decision and order on the thirtieth day after the date that the Chief Counsel issued the decision. (e) The failure to file an appeal is deemed a waiver of any right to seek judicial review of the Chief Counsel’s decision that becomes a final agency decision by operation of paragraph (c) of this section. § 605.30 Administrator’s Discretionary Review of the Chief Counsel’s Decision. (a) If the Administrator reviews the Chief Counsel’s decision on the Administrator’s own motion, then the Administrator shall issue a notice of review to each party by the thirtieth day after the date that the Chief Counsel issued the decision. (1) In the notice of review, the Administrator shall set forth the specific findings of fact and conclusions of law in the Chief Counsel’s decision subject to review. (2) Each party may file one brief on review to the Administrator or rely on its post-hearing briefs to the Chief Counsel. Each party shall file a brief on review no later than ten (10) days after the Administrator serves notice of the review. Each party shall file and serve its brief on review by personal delivery or U.S. mail consistent with § 605.26. (3) The Administrator shall issue a final agency decision and order within thirty (30) days after the due date of the briefs on review. If the Administrator finds that a party is not in compliance with this part, then the final agency order shall include a statement of corrective action, if appropriate, and identify remedies. (b) If the Administrator reviews a decision of the Chief Counsel on the Administrator’s own motion, then the Administrator shall stay the Chief Counsel’s decision pending a final decision by the Administrator. § 605.31 Judicial Review of a Final Decision and Order. (a) A party may seek judicial review in an appropriate United States District Court of a final decision and order as provided in 5 U.S.C. 701–706. (b) The Chief Counsel’s decision to dismiss a complaint under § 605.24 does not constitute a final decision and order subject to judicial review. E:\FR\FM\18NOP1.SGM 18NOP1 68390 Federal Register / Vol. 73, No. 223 / Tuesday, November 18, 2008 / Proposed Rules Subpart D—Reporting and Records § 605.40 Reports and Information. The Administrator may order any grantee or operator for the grantee to file special or separate reports setting forth information relating to any transportation service rendered by such grantee or operator, in addition to any other reports required by this part. Subpart E—Grandfathering of Existing School Bus Operations § 605.50 Grandfathering Provisions. (a) Each grantee shall have until June 30, 2010, to modify its school bus operations to comply with this part. (b) If a grantee provided school bus operations for a school or school district and received no payment from that school or school district for the school bus operations prior to August 1, 2008, then that grantee may continue to provide the school bus operations for that particular school or school district. If a grantee receives payment from a school or school district for school bus operations on or after August 1, 2008, then this grandfathering provision does not apply. Issued in Washington, DC, on this 3rd day of November, 2008. James S. Simpson, Administrator. [FR Doc. E8–26683 Filed 11–17–08; 8:45 am] BILLING CODE 4910–57–P DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 622 [Docket No. 070719384–7386–01] RIN 0648–AV80 Fisheries of the Caribbean, Gulf of Mexico, and South Atlantic; Reef Fish Fishery of the Gulf of Mexico; Amendment 30B National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce. ACTION: Proposed rule; request for comments. dwashington3 on PRODPC61 with PROPOSALS AGENCY: SUMMARY: NMFS issues this proposed rule to implement Amendment 30B to the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP) prepared by the Gulf of Mexico Fishery Management Council (Council). This proposed rule would establish annual catch limits (ACLs) and VerDate Aug<31>2005 14:36 Nov 17, 2008 Jkt 217001 accountability measures (AMs) for commercial and recreational gag, red grouper, and shallow-water grouper (SWG); establish a commercial quota for gag; adjust the commercial quotas for red grouper and shallow-water grouper; establish an incidental bycatch allowance trip limit for commercial gag and red grouper; reduce the commercial minimum size limit for red grouper; reduce the gag bag limit and the aggregate grouper bag limit; increase the red grouper bag limit; extend the closed season for recreational shallow-water grouper; establish a new reef fish seasonal-area closure; eliminate the end date for the Madison-Swanson and Steamboat Lumps marine reserves; and require that federally permitted reef fish vessels comply with the more restrictive of Federal or state reef fish regulations when fishing in state waters. In addition, Amendment 30B would establish management targets and thresholds for gag consistent with the requirements of the Sustainable Fisheries Act; set the gag and red grouper total allowable catch (TAC); and establish interim allocations for the commercial and recreational gag and red grouper fisheries. This proposed rule is intended to end overfishing of gag and maintain catch levels of red grouper consistent with achieving optimum yield. DATES: Written comments must be received on or before January 2, 2009. ADDRESSES: You may submit comments on the proposed rule, identified by ‘‘0648–AV80’’ by any of the following methods: • Electronic Submissions: Submit all electronic public comments via the Federal e-Rulemaking Portal: https:// www.regulations.gov. • Fax: 727–824–5308; Attention: Peter Hood. • Mail: Peter Hood, Southeast Regional Office, NMFS, 263 13th Avenue South, St. Petersburg, FL 33701. Instructions: All comments received are a part of the public record and will generally be posted to https:// www.regulations.gov without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information. To submit comments through the Federal e-Rulemaking Portal: https:// www.regulations.gov, enter ‘‘NOAANMFS–2008–0203’’ in the keyword search, then select ‘‘Send a Comment or Submission.’’ NMFS will accept anonymous comments (enter N/A in the PO 00000 Frm 00027 Fmt 4702 Sfmt 4702 required fields, if you wish to remain anonymous). You may submit attachments to electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only. Copies of Amendment 30B, which includes an environmental impact statement, an initial regulatory flexibility analysis (IRFA), and a regulatory impact review (RIR) may be obtained from the Gulf of Mexico Fishery Management Council, 2203 North Lois Avenue, Suite 1100, Tampa, FL 33607; telephone 813–348–1630; fax 813–348–1711; e-mail gulfcouncil@gulfcouncil.org; or may be downloaded from the Council’s website at https://www.gulfcouncil.org/. FOR FURTHER INFORMATION CONTACT: Peter Hood, 727–824–5305. SUPPLEMENTARY INFORMATION: The reef fish fishery of the Gulf of Mexico is managed under the FMP. The FMP was prepared by the Council and is implemented through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Background The Magnuson-Stevens Act requires NMFS and regional fishery management councils to prevent overfishing and achieve, on a continuing basis, the optimum yield (OY) from federally managed fish stocks. These mandates are intended to ensure fishery resources are managed for the greatest overall benefit to the nation, particularly with respect to providing food production and recreational opportunities, and protecting marine ecosystems. To further this goal, the Magnuson-Stevens Act requires fishery managers to specify their strategy to rebuild overfished stocks to a sustainable level within a certain time frame, and to minimize bycatch and bycatch mortality to the extent practicable. The reauthorized Magnuson-Stevens Act as amended through January 12, 2007, requires the councils to establish ACLs for each stock or stock complex and AMs to ensure these ACLs are not exceeded. This proposed rule addresses these requirements for gag and red grouper. NMFS has published proposed guidelines to address the new Magnuson-Stevens Act requirements for ACLs and AMs. A proposed rule for these guidelines was published in the Federal Register on June 9, 2008 (73 FR 32526), and requested public comment. According to these guidelines, stocks in the fishery should have quantitative reference points, including status determination criteria, maximum E:\FR\FM\18NOP1.SGM 18NOP1

Agencies

[Federal Register Volume 73, Number 223 (Tuesday, November 18, 2008)]
[Proposed Rules]
[Pages 68375-68390]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-26683]


=======================================================================
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DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

49 CFR Part 605

[Docket No. FTA-2008-0044]
RIN 2132-AB00


School Bus Operations

AGENCY: Federal Transit Administration (FTA), DOT.

ACTION: Notice of proposed rulemaking.

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

SUMMARY: Through this notice, the Federal Transit Administration (FTA) 
proposes to amend its school bus operations regulations. Most notably, 
FTA proposes to clarify several definitions, amend the school bus 
operations complaint procedures, and implement Section 3023(f) of the 
Safe, Accountable, Flexible, Efficient Transportation Equity Act: A 
Legacy for Users (SAFETEA-LU). FTA seeks comment on this notice from 
interested parties.

DATES: Comments must be received by February 17, 2009. FTA will 
consider late filed comments to the extent practicable.

ADDRESSES: You may submit comments by one of the following methods.
     Federal e-Rulemaking Portal: https://www.regulations.gov. 
Follow the online instructions for submitting comments.
     Fax: 1-202-493-2251.
     U.S. Post or Express Mail: U.S. Department of 
Transportation, Docket Operations, West Building Ground Floor, Room 
W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590.
     Hand Delivery: The West Building of the U.S. Department of

[[Page 68376]]

Transportation, 1200 New Jersey Avenue, SE, Washington, DC 20590, 
between 9 a.m. and 5 p.m., Monday through Friday, except Federal 
holidays.
    Instructions: You must include the agency name (Federal Transit 
Administration) and the Docket number (FTA-2008-0044) or the Regulatory 
Identification Number (RIN) (2132-AB00) for this notice at the 
beginning of your comment. You should include two copies of your 
comment if you submit it by mail. If you wish to receive confirmation 
that FTA received your comment, you must include a self-addressed 
stamped postcard. Note that FTA will post all comments that it 
receives, including any personal information provided therein, without 
change, to https://www.regulations.gov.
    Due to security procedures in effect since October 2001 regarding 
mail deliveries, mail received through the U.S. Postal Service may be 
subject to delays. A party that submits a comment responsive to this 
notice should consider using an express mail firm to ensure the prompt 
filing of any submissions not filed electronically or by hand.

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., East Building--5th Floor, 
Washington, DC 20590. E-mail: Michael.Culotta@dot.gov. Telephone: (202) 
366-1936.

SUPPLEMENTARY INFORMATION: 

I. Background

A. Introduction

    FTA issues this Notice of Proposed Rulemaking regarding its school 
bus operations regulations at 49 CFR part 605 pursuant to the changes 
Congress requires in section 3023(f) of the Safe, Accountable, 
Flexible, Efficient Transportation Equity Act: A Legacy for Users 
(SAFETEA-LU),\1\ to provide clarification in the context of the U.S. 
District Court for the Western District of New York's decision in 
Rochester-Genesee Regional Transportation Authority v. Hynes-Cherin,\2\ 
and generally, to update the regulation. Through this Notice of 
Proposed Rulemaking, FTA intends to provide its grantees with a 
regulatory 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 of 49 U.S.C. 5323(f). To the extent that FTA departs from 
any previous guidance with respect to its school bus operations 
regulations, FTA sets forth its reasons below.
---------------------------------------------------------------------------

    \1\ Safe, Accountable, Flexible, Efficient Transportation Equity 
Act: A Legacy for Users (SAFETEA-LU) sec. 3023, 49 U.S.C. 5323(f) 
(2006).
    \2\ 531 F.Supp.2d 494 (W.D.N.Y. 2008).
---------------------------------------------------------------------------

B. Statutory and Regulatory History

    In 1973, Congress passed the Federal-Aid Highway Act, which 
authorizes 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's 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, Public Law No. 93-87, sec. 
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 at 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\ FTA 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) (codified at 49 CFR part 605 (2007)).
    \6\ 49 CFR 605.14 (2007).
    \7\ 49 CFR 605.3(b).
---------------------------------------------------------------------------

    FTA exempts ``tripper service'' from the prohibition of school bus 
operations.\8\ FTA defines ``tripper service'' as ``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).
---------------------------------------------------------------------------

    On August 10, 2005, President George W. Bush signed SAFETEA-LU into 
law. Section 3023(f)(3) of SAFETEA-LU provides, ``If the Secretary 
finds that an applicant, governmental authority, or publicly owned 
operator has violated the [school bus] agreement * * * the Secretary 
shall bar a recipient or an operator from receiving Federal transit 
assistance in an amount the Secretary considers appropriate.'' \10\ 
Prior to SAFETEA-LU, Congress required the Secretary of Transportation 
to completely bar a violator of 49 CFR part 605 of all Federal transit 
funds to which it was entitled.\11\
---------------------------------------------------------------------------

    \10\ SAFETEA-LU sec. 3023(f)(3).
    \11\ See 49 CFR 605.33(b) (2004).
---------------------------------------------------------------------------

C. Rochester-Genesee Regional Transportation Authority v. Hynes-Cherin

    On January 24, 2008, the U.S. 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 at 49 CFR part 605.\12\ 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.\13\
---------------------------------------------------------------------------

    \12\ See Rochester-Genesee Reg'l Transp. Auth., 531 F.Supp.2d 
521-22.
    \13\ Id. at 507-17.
---------------------------------------------------------------------------

    In its decision, the Court narrowly interpreted the word 
``exclusively'' in FTA's definition of ``school bus operations'' and 
concluded that technically, because a member of the general public 
hypothetically could board a bus along one of RGRTA's proposed 240 
routes, RGRTA did not propose to ``exclusively'' transport students, 
and therefore, RGRTA's proposed express school bus service did not 
constitute an impermissible school bus operation.\14\ Additionally, the 
Court broadly interpreted FTA's definition of ``tripper service'' 
citing 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 507-09.
    \15\ Id. at 512 (citing United States ex rel. Lamers v. City of 
Green Bay, 168 F.3d 1013, 1019 (7th Cir. 1999)).
---------------------------------------------------------------------------

D. School Bus Operations Policy Statement

    On September 16, 2008, in the context of the Court's decision in 
Rochester-Genesee Regional Transportation Authority, FTA issued a 
``Final Policy Statement on FTA's School Bus

[[Page 68377]]

Operations Regulations.'' \16\ In the policy statement, FTA noted that 
it respects the Court's decision in the Western District of New York; 
however, FTA found the Court's decision problematic because, if applied 
elsewhere in the United States, the decision could obstruct FTA's 
ability to execute and implement Congress' school bus prohibition and 
its express intent regarding that prohibition.\17\ FTA found that if it 
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.\18\ 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 with ease.\19\ Clearly, Congress did not intend this result, 
otherwise, Congress would not have passed the statutory provision at 49 
U.S.C. 5323(f).\20\
---------------------------------------------------------------------------

    \16\ Final Policy Statement on FTA's School Bus Operations 
Regulations, 73 FR 53,384 (Sept. 16, 2008).
    \17\ 73 FR 53,390.
    \18\ 73 FR 53,387.
    \19\ 73 FR 53,387.
    \20\ 73 FR 53,387.
---------------------------------------------------------------------------

    Thus, in the policy statement, FTA interpreted the term ``tripper 
service'' 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.\21\ FTA 
interpreted the term ``exclusively'' as used in FTA's definition of 
school bus operations at 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 non-student general public.\22\ In the policy statement, FTA 
expressed its intention to issue a Notice of Proposed Rulemaking to 
amend the regulatory text at 49 CFR part 605.\23\
---------------------------------------------------------------------------

    \21\ 73 FR 53,390.
    \22\ 73 FR 53,390.
    \23\ 73 FR 53,385.
---------------------------------------------------------------------------

II. Notice of Proposed Rulemaking

A. Introduction

    FTA issues this Notice of Proposed Rulemaking regarding its school 
bus operations regulations at 49 CFR part 605 pursuant to the changes 
Congress requires in section 3023(f) of the Safe, Accountable, 
Flexible, Efficient Transportation Equity Act: A Legacy for Users 
(SAFETEA-LU),\24\ to provide clarification in the context of the U.S. 
District Court for the Western District of New York's decision in 
Rochester-Genesee Regional Transportation Authority v. Hynes-
Cherin,\25\ and generally to update the regulation. Through this Notice 
of Proposed Rulemaking, FTA intends to provide its grantees with a 
regulatory basis which will allow them to continue to provide the 
service that FTA historically has allowed through administrative 
adjudications, while simultaneously satisfying its statutory 
requirements under 49 U.S.C. 5323(f). To the extent that FTA departs 
from any previous guidance with respect to its school bus operations 
regulations, FTA sets forth its reasons below.
---------------------------------------------------------------------------

    \24\ SAFETEA-LU sec. 3023.
    \25\ 531 F.Supp.2d 494.
---------------------------------------------------------------------------

    When drafting this Notice of Proposed Rulemaking, FTA sought 
comment from interested parties on the existing school bus operations 
regulation at 49 CFR part 605. On June 11, 2008, FTA met with 
representatives from the National School Transportation Association to 
discuss viewpoints from private school bus operators on the existing 
school bus operations regulation. On July 29, 2008, FTA met with 
representatives from the American Public Transportation Association, 
the Washington Metropolitan Area Transit Authority, the Champaign-
Urbana Mass Transit District, the Greater Cleveland Regional Transit 
Authority, the Alameda-Contra Costa Transit District, The Rapid, and 
the Council of the Great City Schools to discuss viewpoints from 
operators of public transportation systems and public school districts 
on the existing school bus operations regulation. FTA intends to post 
on docket number FTA-2008-0044 information from the meetings mentioned 
above, such as attendance sheets and rulemaking proposals.
    On September 16, 2008, FTA issued a ``Final Policy Statement on 
FTA's School Bus Operations Regulations'' that clarifies FTA's 
interpretation of its school bus operations regulations at 49 CFR part 
605.\26\ The public provided FTA with over 600 comments at docket 
number FTA-2008-0015 regarding FTA's proposed policy statement, and FTA 
considered those comments in developing this Notice of Proposed 
Rulemaking.
---------------------------------------------------------------------------

    \26\ 73 FR 53,384.
---------------------------------------------------------------------------

B. Section-by-Section Analysis

    In this section, FTA discusses the differences between the existing 
regulation and the proposed regulation. In addition to seeking general 
comments on the proposed regulation, FTA requests comments on the 
specific issues indicated below.
1. Subpart A--General

a. Purpose (Sec.  605.1)

    FTA proposes to amend 49 CFR 605.1 to update statutory citations. 
Additionally, FTA proposes to amend 49 CFR 605.1 to include the 
language of 49 U.S.C. 5323(f), specifically, ``Financial assistance 
under this chapter may be used for a capital project, or to operate 
public transportation equipment or a public transportation facility, 
only if the applicant agrees not to provide schoolbus transportation 
that exclusively transports students and school personnel in 
competition with a private schoolbus operator.''

b. Scope (Sec.  605.2)

    FTA proposes to amend 49 CFR 605.2 to update statutory citations.

c. Definitions (Sec.  605.3)

i. General
    FTA proposes to amend 49 CFR 605.3 to update statutory citations.
    FTA proposes to add a definition of the term ``Chief Counsel'' to 
provide clarification with respect to FTA's proposed procedures under 
Subpart B and Subpart C.
    FTA proposes to delete the term ``grant contract'' because it is no 
longer applicable under FTA's proposed agreement requirements at 49 CFR 
605.11.
    FTA proposes to update the term ``grantee'' to include 
subrecipients of federal financial assistance under 49 U.S.C. Chapter 
53 and 23 U.S.C. 133 and 142.
    FTA proposes to delete the term ``incidental'' because it is no 
longer applicable to 49 CFR part 605. FTA cautions grantees, however, 
that FTA Circular 5010.1 defines ``incidental use'' as:

    [T]he authorized use of real property and equipment acquired 
with FTA funds for the purposes of transit service but which also 
has limited non-transit use due to transit operating circumstances. 
Such use must be compatible with the approved purposes of the 
project and not interfere with intended public transportation uses 
of project assets.

    FTA proposes to delete the term ``tripper service.'' FTA discusses 
this proposal in section (II)(B)(2)(d) below.
    FTA proposes to delete the term ``urban area'' and replace it with 
the term ``geographic service area'' which means ``the area in which a 
recipient is authorized to provide public transportation service under 
appropriate

[[Page 68378]]

local, state, and Federal law.'' FTA no longer uses the term ``urban 
area,'' but instead, FTA uses the term ``geographic service area'' to 
refer to the local area in which a grantee operates.
ii. ``School Bus Operations''
    FTA proposes to amend the definition of the term ``school bus 
operations.'' Under 49 U.S.C. 5323(f), FTA may provide financial 
assistance to a grantee 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.'' 
\27\ Congress's intent in enacting this provision was to prevent unfair 
competition between federally funded public transportation systems and 
private school bus operators.\28\
---------------------------------------------------------------------------

    \27\ 49 U.S.C. 5323(f).
    \28\ Chicago Transit Auth., 607 F.2d at 1292-93.
---------------------------------------------------------------------------

    In its school bus operations regulations, FTA defines ``school bus 
operations'' as ``transportation by bus exclusively for school 
students, personnel and equipment * * *'' \29\ In Rochester-Genesee 
Regional Transportation Authority, the Court narrowly interpreted the 
word ``exclusively'' and concluded that, technically, because a member 
of the general public hypothetically could board a bus along one of 
RGRTA's proposed 240 routes, RGRTA did not propose to ``exclusively'' 
transport students, and therefore, RGRTA's proposed express school bus 
service did not constitute an impermissible school bus operation.\30\
---------------------------------------------------------------------------

    \29\ 49 CFR 605.3.
    \30\ Rochester-Genesee Reg'l Transp. Auth., 531 F.Supp.2d at 
507-09.
---------------------------------------------------------------------------

    FTA finds the Court's decision in Rochester-Genesee Regional 
Transportation Authority problematic. FTA believes that a grantee, 
pursuant to the Court's interpretation of ``school bus operations,'' 
may believe that it could restructure substantially its public 
transportation operation to accommodate the needs of a local school 
district and its students, which might have the effect of displacing 
private school bus operators and their employees, provided the system 
keeps the service open to the public even though members of the public 
unlikely will board these buses. This practice would produce unfair 
competition for private school bus operators which is precisely the 
result Congress sought to prevent when enacting 49 U.S.C. 5323(f).
    FTA proposes to add a definition of the term ``exclusively'' as 
used in 49 U.S.C. 5323(f) and the definition of ``school bus 
operations'' at 49 CFR 605.3 to mean ``transportation that a reasonable 
person would conclude was designed primarily to accommodate students 
and school personnel, without regard to demand from the non-student 
general public.'' FTA intends its proposed definition of 
``exclusively'' to effectuate Congress's intent of protecting private 
school bus operators from unfair competition with federally subsidized 
grantees.
    FTA relies, in part, on the subsequent qualifying language of 49 
U.S.C. 5323(f)--``in competition with a private schoolbus operator''--
to justify this definition. To illustrate, if FTA permitted a grantee 
to provide school bus operations so long as the service is advertised 
as generally 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 
with ease. As noted earlier, Congress did not intend this result; 
otherwise, Congress would not have enacted this statutory provision.
    Additionally, the relevant language of the regulation prohibits 
service that is ``exclusively for'' students and school personnel, and 
therefore, FTA concludes that it is reasonable and proper to consider 
whether service is, in fact, ``for'' such riders.
    With respect to the ``reasonable person'' standard, FTA points out 
that this standard has nearly a two hundred year history in the common 
law.\31\ 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.\32\ Accordingly, FTA proposes to utilize this objective, 
rather than subjective, standard when analyzing issues involving school 
bus operations.
---------------------------------------------------------------------------

    \31\ See Vaughan v. Menlove, (1837) 132 Eng. Rep. 490, and its 
progeny.
    \32\ See William L. Prosser & W. Page Keeton, Prosser and Keeton 
On Torts 173-93 (5th ed. 1984).
---------------------------------------------------------------------------

    FTA also uses the reasonable person standard in a similar 
definition of ``exclusive'' in its charter service regulations at 49 
CFR part 604. Under 49 CFR 604.3(h), `` `Exclusive' means service that 
a reasonable person would conclude is intended to exclude members of 
the public.'' \33\ Employing a similar reasonable person standard in 
the school bus regulation would afford FTA and the public consistency 
throughout its regulations.
---------------------------------------------------------------------------

    \33\ 49 CFR 604.3(h).
---------------------------------------------------------------------------

    In addition to utilizing a reasonable person standard, FTA proposes 
to identify a non-exhaustive list of factors that it intends to 
consider when evaluating a school bus operations issue. FTA discusses 
these factors at section (II)(B)(4)(a)(v) below.
    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 non-student general public. Therefore, FTA proposes to define 
``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 also designed the route to serve some segment 
of the non-student general public.

d. Public Hearing Requirement (Sec.  605.4)

    FTA proposes to delete the public hearing requirement for 
applicants that engage or wish to engage in school bus operations at 49 
CFR 605.4 and replace it with the proposed procedures in Subpart B as 
discussed in section (II)(B)(2) below.
2. Subpart B--School Bus Agreements

a. Purpose (Sec.  605.10)

    Under 49 CFR 605.10, FTA explains that the purpose of Subpart B is 
``to formulate procedures for the development of an agreement 
concerning school bus operations.'' \34\ FTA proposes to delete this 
statement of purpose. FTA includes a statement of purpose regarding its 
school bus operations regulations at 49 CFR 605.1.
---------------------------------------------------------------------------

    \34\ 49 CFR 605.10.
---------------------------------------------------------------------------

    Instead, FTA proposes to amend 49 CFR 605.10 to include an express 
prohibition on school bus operations. Under FTA's current school bus 
operations regulations, FTA does not have a separate, express provision 
which prohibits school bus operations. Instead, FTA requires applicants 
to enter into an agreement with FTA stating that they will not provide 
school bus operations. With an express prohibition on school bus 
operations at 49 CFR 605.10, FTA intends to clarify its regulatory 
scheme.
    Additionally, FTA proposes to prohibit grantees from contracting to 
provide school bus operations. Under the current regulatory scheme, FTA 
only may entertain a school bus operations case if a potential 
violation has occurred, that is, if a grantee provided

[[Page 68379]]

service that was a potential school bus operation. Currently, if a 
grantee contracted to provide service, but has not yet provided it, 
then the case is not ripe for FTA's adjudication.\35\ FTA believes that 
this scenario is problematic because, at the point when a case becomes 
ripe, the academic year likely is in session, and FTA's decision on the 
merits could potentially disrupt school transportation for that 
academic year. By considering cases in which a grantee contracted to 
provide service that potentially constitutes a school bus operation, 
but has not yet provide the service, FTA proposes to mitigate the risk 
of disrupting school transportation for the academic year by providing 
the grantees, private operators, and school districts with time to 
create a system that complies with FTA's school bus operations 
regulations.
---------------------------------------------------------------------------

    \35\ See, e.g., Laidlaw Transit, Inc. v. Rochester-Genesee Reg'l 
Transp. Auth., FTA School Bus Operations Docket Number 2007-01 1, 3 
(2007).
---------------------------------------------------------------------------

b. Exemptions (Sec.  605.11)

i. Existing Provisions
    Pursuant to 49 U.S.C. 5323(f), FTA provides exemptions to its 
prohibition on school bus operations where (1) a grantee or applicant 
operates a school system and a separate and exclusive school bus 
program for that school system; (2) private school bus operators in the 
local area are unable to provide adequate transportation, at a 
reasonable rate, and in conformance with applicable safety standards; 
and (3) a grantee or applicant is a state or local public body or 
agency that previously was engaged in school bus operations.\36\
---------------------------------------------------------------------------

    \36\ 49 CFR 605.11.
---------------------------------------------------------------------------

    In the existing regulation, a grantee or applicant that wishes to 
provide school bus operations under an exemption must follow the 
procedures set forth in 49 CFR 605.16-605.19. In sum, a grantee or 
applicant must (1) provide notice to local private school bus operators 
of its proposed or existing school bus operation,\37\ (2) publish in a 
local newspaper a description of its proposed or existing school bus 
operation,\38\ (3) hold public hearings regarding the proposed or 
existing school bus operation,\39\ and (4) submit an application to FTA 
setting forth reasons why FTA should allow the grantee or applicant to 
provide school bus operations.\40\ If no private school bus operator 
operates in the grantee's or applicant's local area, then the grantee 
or applicant may so certify in lieu of providing the notice required 
above.\41\ Private school bus operators have an opportunity to comment 
on the grantee's or applicant's proposed or existing school bus 
operations.\42\ The FTA Administrator subsequently issues a decision 
regarding the grantee's or applicant's application for an 
exemption.\43\ Since FTA promulgated its school bus operations 
regulations in 1976, grantees and applicants rarely have applied for an 
exemption under 49 CFR 605.11.
---------------------------------------------------------------------------

    \37\ 49 CFR 605.16(a)(1).
    \38\ 49 CFR 605.16(a)(2).
    \39\ 49 CFR 605.18.
    \40\ 49 CFR 605.11.
    \41\ 49 CFR 605.17.
    \42\ 49 CFR 605.18.
    \43\ 49 CFR 605.19.
---------------------------------------------------------------------------

ii. Proposed Exemptions
    FTA proposes to restructure its regulatory scheme with regard to 
exemptions. First, FTA proposes to move its list of exemptions from 49 
CFR 605.11 to 49 CFR 605.12.
    Second, FTA proposes to delete from 49 CFR 605.3(b) its definition 
of ``tripper service'' and its provision regarding tripper service at 
49 CFR 605.13. FTA proposes to add exemptions to the school bus 
operations prohibition for service that FTA historically has considered 
to be tripper service. This amendment is discussed in detail in Section 
(II)(B)(2)(d) below.
    Third, FTA proposes to remove from its list of exemptions the 
exemption located at 49 CFR 605.11(b) which allows a grantee or 
applicant to provide school bus operations if the grantee or applicant 
demonstrates to the satisfaction of the Administrator, ``That private 
school bus operators in the urban area are unable to provide adequate 
transportation, at a reasonable rate, and in conformance with 
applicable safety standards.'' \44\ FTA proposes to make this 
``exemption'' a new ``exception,'' and FTA discusses this proposal in 
detail in Section (II)(B)(2)(b)(iii) below.
---------------------------------------------------------------------------

    \44\ 49 CFR 605.11.
---------------------------------------------------------------------------

    Fourth, FTA proposes to eliminate the procedural requirements that 
a grantee or applicant must follow at 49 CFR 605.16-605.19 to provide 
service pursuant to an exemption. FTA intends its proposed exemptions 
to serve as defenses for grantees in the context of a school bus 
operations complaint filed under proposed Subpart C.
iii. New Exceptions
    As mentioned above, FTA proposes to amend 49 CFR 605.13 to provide 
exceptions to the proposed prohibition on school bus operations at 49 
CFR 605.10. Here, FTA borrows from, and modifies, the current 
procedures corresponding to a petition for an exemption.
    FTA proposes to allow an applicant or grantee to petition the Chief 
Counsel for an exception to the school bus operations prohibition 
``where private school bus operators in the applicant's or grantee's 
geographic service area are unable to provide adequate transportation 
at a reasonable rate and in conformance with applicable safety 
standards.''
    To provide service pursuant to this proposed exception, an 
applicant or a grantee must follow a series of proposed procedural 
requirements. FTA proposes to require an applicant or a grantee to 
formally apply to FTA for a ``Petition for an Exception.'' First, the 
applicant or grantee must provide notice to the Chief Counsel that it 
intends to apply for a Petition for an Exception. This notice must 
include a description of the proposed school bus operations, including 
a description of (1) the geographic service area that the applicant or 
grantee intends to serve; (2) the schools and school districts that the 
applicant or grantee intends to serve; (3) the anticipated ridership 
related to the school bus operation; (4) an estimation of the number 
and types of buses that the applicant or grantee intends to utilize to 
provide the school bus operation; (5) the duration of the school bus 
operation; (6) the frequency of daily service related to the school bus 
operation; (7) an analysis regarding the extent to which the proposed 
school bus operation complies with local, state, and Federal safety 
laws; (8) a summary of the fully allocated costs related to the school 
bus operation; and (9) the rate that the applicant or grantee intends 
to charge for the school bus operation. FTA believes that this 
information will help it determine whether the proposed service is 
adequate, safe, and at a reasonable rate. FTA invites the public to 
comment on the components of a fully allocated cost analysis that it 
should require from its applicants and grantees.
    Second, FTA will open an electronic docket, entitled ``Petition for 
an Exception Docket,'' at https://www.regulations.gov corresponding to 
the Petition for an Exception. Instead of requiring applicants and 
grantees to provide notices in local newspapers, FTA intends to utilize 
current technology, particularly the electronic docket, to provide more 
accessibility to the public regarding a Petition for an Exception. FTA 
also believes that the utilization of this technology will make FTA 
action more transparent.
    Third, FTA will transmit a copy of the notice and its docket number 
to the

[[Page 68380]]

applicant or grantee and to the National School Transportation 
Association (NSTA). NSTA may circulate the notice to any appropriate 
private school bus operators that provide school bus operations in a 
particular geographic service area. Furthermore, persons interested in 
monitoring petitions submitted to FTA for which a docket is opened may 
sign up for the Regulations.gov list serv. Through this service, 
Regulastions.gov will notify subscribers each time a party submits a 
document to the docket.
    Fourth, any private operator having a place of business in the 
applicant's or grantee's geographic service area may, within thirty 
days of the notice's docketing date, submit comments on the Petition 
for an Exception Docket demonstrating the extent to which it can 
provide school bus operations that constitute adequate transportation 
at a reasonable rate and in conformance with applicable safety 
standards. FTA invites the public to comment on whether it should allow 
a private operator a different timeframe for commenting on a proposed 
school bus operation.
    Fifth, the applicant or grantee, after evaluating any comments from 
private school bus operators, may petition the Chief Counsel for an 
exception to the school bus operations prohibition at 49 CFR 605.10. 
The applicant or grantee must demonstrate to the satisfaction of the 
Chief Counsel that no private operator having a place of business in 
the applicant's or grantee's geographic service area can provide school 
bus operations that constitute adequate transportation at a reasonable 
rate and in conformance with applicable safety standards. The Chief 
Counsel subsequently will issue a decision that either grants or denies 
the applicant's or grantee's Petition for an Exception.

c. Use of Project Equipment (Sec.  605.12)

    FTA proposes to delete the regulatory provision at 49 CFR 605.12 
regarding the use of project equipment. FTA recently amended its 
charter service regulations at 49 CFR part 604, and FTA believes that 
the current provision at 49 CFR 605.12 is no longer applicable.\45\
---------------------------------------------------------------------------

    \45\ See Charter Service Final Rule, 73 FR 2,326 (Jan. 14, 
2008).
---------------------------------------------------------------------------

d. Tripper Service (Sec.  605.13)

    FTA proposes to delete the regulatory provision at 49 CFR 605.13 
regarding tripper service. Although there is no statutory definition 
for the term, FTA included the concept of ``tripper service'' in its 
school bus operations regulations.\46\ FTA defines ``tripper service'' 
as:
---------------------------------------------------------------------------

    \46\ The Urban Mass Transportation Administration (UMTA), now 
the Federal Transit Administration (FTA), did not include the term 
``tripper service'' in its proposed school bus operations 
regulation. See 40 FR 25,309-14 (June 13, 1975). UMTA introduced the 
term ``tripper service'' into its final rule with no explanation as 
to why it inserted that regulatory term. See 41 FR 128 (Apr. 1, 
1976).

    [R]egularly 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. Buses used in tripper service must 
be clearly marked as open to the public and may not carry 
designations such as ``school bus'' or ``school special.'' These 
buses may stop only at a grantee or operator's regular service stop. 
All routes traveled by tripper buses must be within a grantee's or 
operator's regular route service as indicated in their published 
route schedules.\47\
---------------------------------------------------------------------------

    \47\ 49 CFR 605.3.

    Under this definition of tripper service, 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 began 
to allow 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.\48\
---------------------------------------------------------------------------

    \48\ 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.'' \49\ FTA 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.\50\
---------------------------------------------------------------------------

    \49\ 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).
    \50\ Letter from Federal Transit Administration to Rochester-
Genesee Regional Transportation Authority at 6 (Oct. 12, 2007).
---------------------------------------------------------------------------

    FTA has not, however, allowed a grantee 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 solely to accommodate 
the needs of school students.\51\
---------------------------------------------------------------------------

    \51\ Id. at 2-6.
---------------------------------------------------------------------------

    In addition to minor modifications to route paths, FTA previously 
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.'' 
\52\
---------------------------------------------------------------------------

    \52\ 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.'' \53\ 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.\54\
---------------------------------------------------------------------------

    \53\ United States ex rel. Lamers v. City of Green Bay, 168 F.3d 
1013, 1019 (7th Cir. 1999).
    \54\ Rochester-Genesee Reg'l Transp. Auth., 531 F.Supp.2d 494, 
509.
---------------------------------------------------------------------------

    FTA finds the definition of tripper service and its subsequent 
interpretations problematic. FTA believes that a grantee, pursuant to 
the jurisprudence of the Courts in Lamers and Rochester-Genesee 
Regional Transportation Authority, may believe that it could 
substantially restructure its public transportation operation solely to 
accommodate the needs of a local school district and its students while 
displacing private school bus operators and their employees provided 
the system keeps the service open to the public even though no member 
of the public likely will ride those particular

[[Page 68381]]

routes. This practice would produce unfair competition for private 
school bus operators which is precisely the result Congress sought to 
prevent when enacting 49 U.S.C. 5323(f).
    In this notice, FTA proposes to codify in regulatory text the type 
of service that it historically has allowed through administrative 
adjudications. FTA proposes to eliminate the term ``tripper service,'' 
and instead, create exemptions to FTA's proposed school bus operations 
prohibition at 49 CFR 605.11. This regulatory scheme would allow a 
grantee to continue to use various fare collection or subsidy systems, 
modify the frequency of its service, and make de minimis route 
alterations to accommodate the needs of school students and personnel.
    To illustrate, FTA would allow a grantee to issue fare cards to 
students and school personnel and it would allow a grantee to accept a 
payment from a school or a school district in exchange for service. FTA 
would allow a grantee to modify the frequency of its service, meaning, 
FTA would allow a grantee to run more buses on routes in the morning 
when school begins and more buses in the afternoon when school ends. 
With respect to the de minimis route alterations, FTA would allow a 
grantee to make one-half mile or less route alterations from routes 
within a one-half mile or less radius of a school building to 
accommodate the needs of students and school personnel.\55\ FTA invites 
the public to comment on whether it should utilize a different 
measurement, such as time traveled or route percentage. For example, 
should FTA allow route deviations where a bus makes a five minute 
deviation from a route? Should FTA allow route deviations that 
constitute ten percent of the route? Alternatively, should FTA allow 
route deviations that are greater than one-half mile? FTA also invites 
public comment on whether it should allow grantees to make route 
deviations at multiple portions of routes or only within the immediate 
vicinity of school buildings.
---------------------------------------------------------------------------

    \55\ Historically, FTA has allowed grantees to make route 
deviations that are several blocks in length within the immediate 
vicinity of school buildings. See Travelways at 7; Letter from 
Federal Transit Administration to Rochester-Genesee Regional 
Transportation Authority at 6 (Oct. 12, 2007).
---------------------------------------------------------------------------

    FTA notes that, through this proposed regulatory scheme, a grantee 
may provide services pursuant to an exemption without a formal 
application to FTA, similar to a grantee's existing opportunity to 
provide ``tripper service'' without a formal application to FTA. FTA's 
intent here is to clarify in regulatory text the type of service that 
it will allow and to simplify the organization of its school bus 
operations regulatory scheme--FTA's intent is not to overhaul the types 
of service that it historically has allowed. FTA does not intend to 
create additional regulatory burdens for grantees that wish to provide 
this type of service.

e. Agreement (Sec.  605.14)

    FTA proposes to consolidate the regulatory provisions at 49 CFR 
605.14 and 49 CFR 605.15 regarding a school bus agreement and move 
those provisions to a new 49 CFR 605.11. Through this proposed 
provision, FTA intends to simplify the requirements regarding school 
bus agreements.
    Under the current regulatory scheme, FTA requires an applicant to 
enter into an agreement with the Administrator whereby the applicant 
agrees ``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.'' \56\ Under current 
practice, FTA's grantees and applicants submit and certify to FTA an 
``Annual List of Certifications and Assurances for Federal Transit 
Administration Grants and Cooperative Agreements'' and grantees 
subscribe to FTA's ``Master Agreement.'' Under the terms of these 
documents, the applicants and grantees agree not to provide school bus 
operations.
---------------------------------------------------------------------------

    \56\ 49 CFR 605.14.
---------------------------------------------------------------------------

    To simplify FTA's requirements regarding school bus agreements and 
to codify current practice, FTA proposes to allow applicants to satisfy 
the requirements regarding school bus agreements by submitting and 
certifying to FTA an ``Annual List of Certifications and Assurances for 
Federal Transit Administration Grants and Cooperative Agreements'' and 
by subscribing to FTA's ``Master Agreement.'' No separate school bus 
agreement is necessary under this proposal.

f. Content of Agreement (Sec.  605.15)

    For the reasons discussed above, FTA proposes to consolidate the 
regulatory provisions at 49 CFR 605.14 and 49 CFR 605.15 regarding a 
school bus agreement and move those provisions to a new 49 CFR 605.11. 
FTA intends to simplify the requirements regarding school bus 
agreements and proposes to provide financial assistance to an applicant 
or a grantee only if ``the applicant or grantee agrees not to provide 
school bus operations exclusively for students and school personnel in 
competition with a private school bus operator.''

g. Notice (Sec.  605.16)

    FTA proposes to delete 49 CFR 605.16 regarding the notice 
requirements for an exemption to FTA's school bus operations 
prohibition in light of FTA's proposed procedures in Subpart B 
explained above.

h. Certification in Lieu of Notice (Sec.  605.17)

    FTA proposes to delete 49 CFR 605.17 regarding the opportunity for 
a certification in lieu of notice corresponding to an exemption to 
FTA's school bus operations prohibition in light of FTA's proposed 
procedures in Subpart B explained above.

i. Comments by Private School Bus Operators (Sec.  605.18)

    FTA proposes to delete 49 CFR 605.18 regarding comments from 
private school bus operators on an applicant's petition for an 
exemption in light of FTA's proposed procedures in Subpart B explained 
above.

j. Approval of School Bus Operations (Sec.  605.19)

    FTA proposes to delete 49 CFR 605.19 regarding FTA's approval of an 
applicant's school bus operations in light of FTA's proposed procedures 
in Subpart B explained above.
3. Subpart C--Modification of Prior Agreements and Amendment of 
Application for Assistance

a. Modification of Prior Agreements (Sec.  605.20)

    FTA proposes to delete the regulatory provision at 49 CFR 605.20 
regarding the modification of prior school bus agreements in light of 
FTA's proposed school bus agreement requirements in Subpart B explained 
above. FTA proposes to replace this provision with amended complaint 
procedures as explained in Subpart D below.

b. Amendment of Applications for Assistance (Sec.  605.21)

    FTA proposes to delete the regulatory provision at 49 CFR 605.21 
regarding the amendment of applications for assistance in light of 
FTA's proposed school bus agreement requirements in Subpart B explained 
above. FTA proposes to replace this provision with amended complaint 
procedures as explained in Subpart D below.
4. Subpart D--Complaint Procedures and Remedies
    Generally, FTA proposes to reorganize its complaint procedures and 
remedies under a proposed ``Subpart C--Complaint Procedures and 
Remedies'' at 49 CFR 605.20-605.31.

[[Page 68382]]

a. Filing a Complaint (Sec.  605.30)

i. Centralized Decision-Making Through the Chief Counsel
    Under FTA's existing school bus operations regulations, any 
interested party may file a written complaint with the Administrator 
alleging a violation of 49 CFR part 605.\57\ FTA requires the 
complainant to write its complaint, to specify in detail the potential 
violation, and to provide evidence substantiating the allegation.\58\
---------------------------------------------------------------------------

    \57\ 49 CFR 605.30.
    \58\ 49 CFR 605.30.
---------------------------------------------------------------------------

    FTA proposes to restructure and modify this section. Under the 
existing regulation, the Administrator issues school bus operations 
decisions. In practice, the Administrator delegates this authority to 
each of FTA's ten Regional Administrators. FTA finds that this practice 
may breed inconsistencies in decision-making and school bus operations 
guidance. Different regions, under different administrations, may issue 
conflicting decisions.
    To remedy this potential conflict, FTA proposes to issue decisions 
centrally through the Chief Counsel. This system will ensure 
consistency in decision-making and school bus operations guidance.
ii. Time Limit for Filing a Complaint
    Under the current regulatory scheme, FTA does not impose a time 
limit on parties that wish to file a complaint alleging a violation of 
49 CFR part 605. FTA finds this regulatory scheme problematic because a 
party may believe that it may file a complaint alleging a school bus 
operations violation years after the potential violation occurred. At 
that point, valuable evidence may be lost or destroyed. Under FTA's 
proposal, the complainant must file its complaint with the Chief 
Counsel within ninety days after the alleged event giving rise to the 
complaint occurred. FTA invites the public to comment on whether it 
should impose a different time limit on parties wishing to file a 
complaint under 49 CFR part 605.
iii. Burden of Persuasion
    Under the current regulatory scheme, FTA does not identify which 
party carries the burden of persuasion in a school bus operations 
adjudication. In this notice, FTA proposes to impose on the complainant 
the burden of persuasion, that is, the complainant loses if the 
evidence is equally balanced. FTA notes that this is the default rule 
in an administrative adjudication,\59\ and FTA invites the public to 
comment on whether it should utilize some other standard.
---------------------------------------------------------------------------

    \59\ See, e.g., Schaffer ex rel Schaffer v. Weast, 546 U.S. 49, 
56 (2005).
---------------------------------------------------------------------------

iv. Standard of Proof
    Under the current regulatory scheme, FTA does not identify a 
standard of proof in a school bus operations administrative 
adjudication. In this notice, FTA proposes to utilize a preponderance 
of the evidence standard. FTA notes that the preponderance of the 
evidence standard is the default standard in administrative 
adjudications,\60\ and to hold something by a preponderance of the 
evidence means that something is more likely so than not so. FTA 
invites the public to comment on whether it should utilize some other 
standard of proof.
---------------------------------------------------------------------------

    \60\ See, e.g., Yzaguirre v. Barnhart, 58 F.App'x 460, 462 (10th 
Cir. 2003) (quoting Jones ex rel Jones v. Chater, 101 F.3d 509, 512 
(7th Cir. 1996)).
---------------------------------------------------------------------------

v. School Bus Operations Factors
    In practice, when evaluating a school bus operations issue under 49 
CFR part 605, FTA weighs and considers a series of factors when 
determining whether a grantee provided school bus operations. In this 
notice, FTA presents factors that should provide clearer guidance in 
its school bus operations regulations. FTA's intent is to codify an 
objective standard for evaluating a potential school bus operations 
violation. The non-exhaustive list of factors is as follows.

    (1) Whether and to what extent a grantee designed and intended 
to design its service to meet the demands of a school or school 
district. If a grantee designed and intended its service to meet the 
demands of a school or school district, then the service is more 
likely to be a school bus operation.
    (2) Whether and to what extent the grantee controls its routes 
and schedules. If the grantee does not control its routes and 
schedules, but instead, a school or school district controls the 
routes and schedules at issue, then the service is more likely to be 
a school bus operation.
    (3) Whether and to what extent students' residences and schools 
serve as the starting or ending points of a route. If students' 
residences and schools serve as the starting or ending points of a 
route, then the service is more likely to be a school bus operation.
    (4) Whether and to what extent the grantee publicizes the 
service at issue. If the grantee does not publicize the service at 
issue, for example by not publicizing the service in its regularly 
published route schedules and maps, then the service is more likely 
to be a school bus operation.
    (5) Whether and to what extent the grantee's service displaces 
private school bus operators. If the grantee's service displaces 
private school bus operators, then the service is more likely to be 
a school bus operation.
    (6) Whether and to what extent the grantee's service is open to 
the public. If the grantee's service is open to the public, then the 
service is less likely to be a school bus operation.
    (7) The extent to which non-students use the grantee's service. 
If a significant portion of non-students use the grantee's service 
at issue, then the service is less likely to be a school bus 
operation.
    (8) Whether and to what extent the grantee operates its service 
during times when school is not in session. If the grantee operates 
the service at issue during times when school is not in session, 
then the service is less likely to be a school bus operation.
    (9) The frequency of the grantee's service during times when 
school is in session. If the grantee frequently operates the service 
at issue during times when school is in session, then the service is 
less likely to be a school bus operation.
    (10) Whether and the extent to which buses stop at clearly 
marked regular route stops. If buses stop at clearly marked regular 
route stops, then the service is less likely to be a school bus 
operation.

FTA invites the public to comment on whether it should utilize these 
factors or some of these factors in its analysis of a school bus 
operations issue.
vi. Previous Oversight Findings
    Under 49 U.S.C. 5307(h)(2), Congress mandates FTA to conduct 
periodic, triennial reviews of its grantees to ensure that the grantees 
are in compliance with the conditions imposed on them as recipients of 
Federal funds.\61\ As a practical matter, however, a triennial review 
is a constrained means of monitoring compliance.
---------------------------------------------------------------------------

    \61\ 49 U.S.C. 5307(h)(2).
---------------------------------------------------------------------------

    In a triennial review, if FTA finds that a grantee has complied 
with its school bus operations regulations, then that finding should 
not preclude FTA from later finding, pursuant to a complaint filed 
under 49 CFR part 605, that a grantee has violated the school bus 
operations prohibition. At the time of a triennial review, FTA may not 
have all the pertinent facts when it makes a school bus operations 
finding. FTA may find new facts in a complaint proceeding. Therefore, 
FTA proposes to add a provision in its school bus operations 
regulations that, ``Any previous oversight findings of compliance with 
the Federal Transit Administration's school bus operations regulations 
will not preclude the Chief Counsel from finding a violation of this 
part.''
vii. Independent Investigation
    Under the current regulatory scheme, the Administrator may 
investigate a grantee if the Administrator believes

[[Page 68383]]

that it has violated 49 CFR part 605.\62\ FTA proposes to amend this 
section to allow the Chief Counsel to initiate and conduct an 
investigation if it has reasonable suspicion to believe that a grantee 
violated 49 CFR part 605.
---------------------------------------------------------------------------

    \62\ 49 CFR 605.31.
---------------------------------------------------------------------------

b. Notification to the Respondent (Sec.  605.31)

    Pursuant to 49 CFR 605.31, when a complainant files a complaint, or 
if the Administrator has reason to believe that grantee violated FTA's 
school bus operations regulations, the Administrator notifies the 
grantee that it may have violated this 49 CFR part 605.\63\ FTA 
proposes to overhaul this provision and insert new complaint procedures 
at 49 CFR 605.21.
---------------------------------------------------------------------------

    \63\ 49 CFR 605.31.
---------------------------------------------------------------------------

i. Complaint Procedures
    Under the current regulatory scheme, FTA imposes few requirements 
on parties with respect to the format and content of their submissions 
in a school bus operations proceeding. FTA finds that this system is 
problematic because parties often do not provide FTA with the facts 
that it needs to make well-informed decisions. Furthermore, the parties 
often do not apply the facts of their cases to applicable laws. 
Therefore, FTA proposes to update its school bus operations regulations 
to require parties to provide clarity in their submissions.
    Under FTA's proposal, FTA would require a complainant to identify a 
potential violator of 49 CFR part 605, the specific provisions of 49 
CFR part 605 that were violated, any relevant documentation, a brief 
statement of the relevant facts, and the harm suffered by the 
complainant. Additionally, FTA would require parties, in their 
responses, replies, and rebuttals, to provide FTA with a brief 
statement of the relevant facts, admissions or denials where 
appropriate, affirmative defenses where appropriate, and any supporting 
documentation. FTA also proposes to allow parties to request extensions 
of time, not to exceed thirty days for good cause, to file a submission 
under this section.
    Furthermore, under the current regulatory scheme, a respondent has 
only one opportunity--in its response--to make its case to FTA. A 
respondent is unable to rebut a complainant's reply which may include 
additional facts or arguments that may merit an additional opportunity 
for the respondent to file a submission. In FTA's proposal, FTA would 
allow a respondent to file a rebuttal to a complainant's reply within 
ten days of the date of service of the reply.
    Additionally, under the current regulatory scheme, FTA allows a 
respondent thirty (30) days to respond to a complaint.\64\ FTA allows 
the complainant a ``like time'' to reply to the response. FTA finds 
that this timeframe is ambiguous because FTA does not specify the 
duration of the ``like time.'' In this notice, to provide clarity, FTA 
proposes to allow a complainant to reply to a response within twenty 
(20) days from the date of service of the respondent's response.
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    \64\ 49 CFR 605.32.
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ii. Third Party Intervention
    Under the current regulatory scheme, FTA has no explicit authority 
to allow third parties to intervene in a school bus operations 
proceeding. In some instances, a third party may be integral to a 
proceeding because the existing parties may not adequately represent 
the third party's interests and the third party consequently may suffer 
harm. Therefore, FTA proposes to add 49 CFR 605.22 to explicitly allow 
a third party to intervene in a school bus operations proceeding if it 
demonstrates to the satisfaction of the Chief Counsel that the parties 
to the proceeding do not adequately represent the third party's 
interests and that it will suffer harm if the Chief Counsel does not 
grant its motion to intervene.
iii. Dismissal of a Complaint
    FTA proposes to add 49 CFR 605.23 to provide the Chief Counsel with 
authority to dismiss a complaint or any claim in a complaint, with 
prejudice, if the complaint or claim is outside FTA's jurisdiction, the 
complainant does not state a claim, or the complainant lacks standing.
iv. Incomplete Complaint
    FTA proposes to add 49 CFR 605.24 to provide the Chief Counsel with 
authority to dismiss a complaint without prejudice if the complaint is 
deficient as to one or more of the requirements set forth in FTA's 
proposed 49 CFR 605.21.
v. Filing of a Complaint
    Under the current regulatory scheme, FTA requires parties to submit 
to FTA paper submissions in a school bus operations proceeding. Since 
1976, the year that FTA promulgated its school bus operations 
regulations, technology has undergone huge advancements. For example, 
electronic dockets available through Regulations.gov provide 
opportunities for Federal agencies to conduct adjudicative proceedings 
electronically. FTA believes that electronic dockets promote 
transparency in the Federal government, preserve public documents in an 
easily accessible public forum, and provide parties with a simple and 
efficient method of filing submissions in administrative adjudications. 
For these reasons, FTA proposes to add 49 CFR 605.25 to create an 
electronic filing system for its complaint process through 
Regulations.gov.
vi. Service
    Under the current regulatory scheme, FTA does not require parties 
to serve copies of their submissions to opposing parties. FTA finds 
this system problematic because parties may not be aware of complaints 
and other submissions filed with FTA on a timely basis. In this notice, 
FTA proposes to require parties to serve copies of all submissions that 
they file with FTA on all other opposing parties.
vii. Appeal From Chief Counsel's Decision
    Under the current regulatory scheme, a party adversely affected by 
a d

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