Proposed Rule: Charter Service: Federal Financial Assistance Recipients Negotiated Rulemaking Recommendations For Improving Unauthorized Competition

Thursday,
February 15, 2007
Part III
Department of
Transportation
Federal Transit Administration
49 CFR Part 604

Charter Service; Proposed Rule
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7526 Federal Register / Vol. 72, No. 31 / Thursday, February 15, 2007 / Proposed Rules
DEPARTMENT OF TRANSPORTATION between 9 a.m. and 5 p.m., Monday The CBNRAC included the following
through Friday, except Federal holidays. organizations:
Federal Transit Administration Instructions: When submitting American Association of State Highway
comments electronically to and Transportation Officials;
49 CFR Part 604 Department’s Docket Management American Bus Association;
[Docket No. FTA–2005–22657] System (DMS) Web site located at American Public Transportation
http://dms.dot.gov, you must use docket Association;
RIN 2132–AA85 number 22657. This will ensure that Amalgamated Transit Union;
your comment is placed in the correct Capital Area Transportation Authority;
Charter Service docket. If you submit comments by Coach America;
AGENCY: Federal Transit Administration, mail, you should submit two copies and Coach USA;
DOT. include the above docket number. If you Community Transportation Association
ACTION: Notice of proposed rulemaking. wish to receive confirmation that FTA of America;
received your comments, you must FTA;
SUMMARY: Pursuant to the direction include a self-addressed stamped Kansas City Area Transportation
contained in the Joint Explanatory postcard. Note that all comments Authority;
Statement of the Committee of received will be posted without change Lancaster Trailways of the Carolinas;
Conference, for section 3023(d), to http://dms.dot.gov. This means that if Los Angeles County Municipal
‘‘Condition on Charter Bus your comment includes any personal Operators Association
Transportation Service’’ of the Safe, identifying information, such Monterey Salinas Transit;
Accountable, Flexible, Efficient information will be made available to National School Transportation
Transportation Equity Act: A Legacy for users of DMS. You may review the Association;
Users (SAFETEA–LU) of 2005, the Department’s complete Privacy Act New York State Metropolitan
Federal Transit Administration (FTA) Statement in the Federal Register Transportation Authority;
established a committee to develop, published on April 11, 2000 (65 FR Northwest Motorcoach Association/
through negotiated rulemaking 19477) or you may visit http:// Starline Luxury Coaches;
procedures, recommendations for dms.dot.gov. Oklahoma State University/The Bus
improving the regulation regarding Community Transit System;
FOR FURTHER INFORMATION CONTACT:
unauthorized competition from River Cities Transit;
Linda Lasley, Senior Advisor, Office of
recipients of Federal financial Southwest Transit Association;
the Administrator, Federal Transit
assistance. The proposed revisions Taxicab, Limousine & Paratransit
Administration, 400 Seventh Street,
contained in this notice of proposed Association;
SW., Room 9328, Washington, DC
rulemaking (NPRM) represent a Trailways; and
20590, (202) 366–4011 or United Motorcoach Association.
complete revision to the charter service Linda.Lasley@dot.gov; Nancy-Ellen
regulations contained in 49 CFR part Zusman, Attorney-Advisor, Office of the The CBNRAC met in Washington, DC
604. The NPRM contains the consensus Chief Counsel, 200 West Adams Street, on the following dates:
work product of the Charter Bus Suite 320, Chicago, IL 60606, (312) 353– May 8–9
Negotiated Rulemaking Advisory 2789 or Nancy-Ellen.Zusman@dot.gov; June 19–20
Committee (CBNRAC), which was able or Elizabeth Martineau, Attorney- July 17–18
to reach consensus on a majority of the Advisor, Office of the Chief Counsel, September 12–13
regulatory language. Where the 400 Seventh Street, SW., Room 9316, October 25–26
CBNRAC was unable to reach Washington, DC 20590, (202) 366–1966 December 6–7
consensus, FTA proposes revisions to or Elizabeth.Martineau@dot.gov. FTA hired Susan Podziba &
the charter service regulations based on Associates to facilitate the CBNRAC
SUPPLEMENTARY INFORMATION:
the open, informed exchange of meetings and prepare meeting
information that took place during I. Statutory Authority summaries. All meeting summaries,
meetings with the CBNRAC. Pursuant to the direction contained in including materials distributed during
DATES: Comments must be received by the Joint Explanatory Statement of the the meetings, are contained in the
April 16, 2007. Late filed comments will Committee of Conference, for section docket for this rulemaking (#22657).
be considered to the extent practicable. 3023(d), ‘‘Conditions on Charter Bus During the first meeting of the CBNRAC,
ADDRESSES: You may submit comments Transportation Service’’ of SAFETEA– the committee developed ground rules
by any of the following methods: LU, FTA established a Federal Advisory for the negotiations, which are
Federal e-Rulemaking Portal: Go to Committee on May 5, 2005, to develop summarized briefly below:
http://www.regulations.gov. Follow the recommendations through negotiated Æ The CBNRAC operates by
online instructions for submitting rulemaking procedures for improvement consensus, meaning that agreements are
comments. of the regulation regarding unauthorized considered reached when there is no
Web site: http://dms.dot.gov. Follow competition from recipients of Federal dissent by any member. Thus, no
the instructions for submitting financial assistance. member can be outvoted.
comments on the DOT electronic docket Æ Work groups can be designated by
II. Advisory Committee the CBNRAC to address specific issues
site.
Fax: 202–493–2251. The Charter Bus Negotiated or to develop proposals. Work groups
Mail: Docket Management Facility; Rulemaking Advisory Committee are not authorized to make decisions for
U.S. Department of Transportation, 400 (CBNRAC) consisted of persons who the full CBNRAC.
Seventh Street, SW., Nassif Building, represented the interests affected by the Æ All consensus agreements reached
PL–401, Washington, DC 20590–0001. proposed rule (i.e., charter bus during the negotiations are assumed to
Hand Delivery: Room PL–401 on the companies, public transportation be tentative agreements contingent upon
plaza level of the Nassif Building, 400 agencies—recipients of FTA grant additional minor revisions to the
Seventh Street, SW., Washington, DC, funds), and other interested entities. language until members of the CBNRAC
Federal Register / Vol. 72, No. 31 / Thursday, February 15, 2007 / Proposed Rules 7527
reach final agreement on regulatory 1. Are there potential limited that complaints were filed in a
language. Once final consensus is conditions under which public transit vindictive manner and without a
achieved, the CBNRAC members may agencies can provide community-based substantive basis. Others felt that once
not thereafter withdraw from the charter services directly to local a complaint was filed, the standard
consensus. governments and private non-profit contained in the existing regulation
Æ Once the CBNRAC reaches agencies that would not otherwise be made it nearly impossible to receive the
consensus on specific provisions of a served in a cost-effective manner by relief requested. All members of the
proposed rule, FTA, consistent with its private operators? CBNRAC felt that the complaint and
legal obligations, will incorporate this 2. How can the administration and appeal process takes too long.
consensus into its proposed rule and enforcement of charter bus provisions What follows is a description of the
publish it in the Federal Register. This be better communicated to the public, decisions reached on each of the issues
provides the required public notice including the use of Internet that the CBNRAC agreed to consider
under the Administrative Procedure Act technology? during negotiations. Each issue raised
(APA), 5 U.S.C. 551 et seq., and allows 3. How can enforcement of violations sub-issues that the committee agreed
for a public comment period. Under the of the charter bus regulations be were also worth considering, and those
APA, the public retains the right to improved? sub-issues are also discussed. If
comment. FTA anticipates, however, 4. How can the charter complaint and consensus was reached on an issue (or
that the pre-proposal consensus agreed administrative appeals process be sub-issue), we explain the consensus. If
upon by this committee will effectively improved? consensus was not reached, we explain
address virtually all the major issues The CBNRAC also agreed to consider the relative positions of the two main
prior to publication of a proposed four additional issues: groups: the public transit caucus and
rulemaking. 1. A new process for determining if the private charter caucus, and then
Æ If consensus is reached on all there are private charter bus companies offer a proposal by FTA. We encourage
issues, FTA will use the consensus text willing and able to provide service that interested parties to review the meeting
as the basis of its NPRM, and the would utilize electronic notification and summaries in the docket for a more
CBNRAC members will refrain from response within 72 hours. complete description of the positions of
providing formal negative comments on 2. A new exception for transportation the caucuses and the negotiations of the
the NPRM. of government employees, elected CBNRAC.
Æ If the CBNRAC reaches agreement officials, and members of the transit Furthermore, two major changes are
by consensus on some, but not all, industry to examine local transit worth noting at the outset. First, the
issues, the CBNRAC may agree to operations, facilities, and public works. CBNRAC agreed to discard the concept
consider those agreements as final 3. Review and clarify, as necessary, of ‘‘willing and able,’’ that had persisted
consensus. In such a case, FTA will the definitions of regulatory terms. for more than 20 years. As a result,
include the consensus-based language 4. FTA policies relative to the private charter operators interested in
in its proposed regulation and decide all enforcement of charter rules and the performing requests for charter service
the outstanding issues, taking into boundary between charter and mass received by recipients would now be
consideration the CBNRAC discussions transit services in specific ‘‘registered charter providers.’’ This
regarding the unresolved issues and circumstances, such as university term is appropriate because, as
reaching a compromise solution. The transportation and transportation to/ explained in further detail later in this
CBNRAC members would refrain from from special events. document, private charter operators
providing formal negative comments on would register on an Internet site. This
III. Overview
sections of the rule based on consensus website, known as the FTA Charter
regulatory text, but would be free to The negotiated rulemaking process is Registration Website, would store the
provide negative comments on the fundamentally different from the usual names of private charter operators
provisions decided by FTA. process for developing a proposed rule. interested in receiving notice from
Æ In the event that CBNRAC fails to Negotiation allows interested and recipients. This new process would
reach consensus on any of the issues, affected parties to discuss possible replace the old ‘‘willing and able’’
FTA will rely on its judgment and approaches to various issues rather than process.
expertise to decide all issues of the simply being asked in a regular notice Second, the existing regulation
charter regulation, and CBNRAC and comment rulemaking proceeding to contains very limited requirements
members may comment on all respond to details on a proposal already regarding complaints, hearings, and
components of the NPRM. developed and issued by an agency. The appeals. This proposal contains a more
Æ If FTA alters consensus-based negotiation process involves the mutual robust complaint, hearings, and appeals
language, it will identify such changes education of the parties on the practical process. This would ensure that FTA
in the preamble to the proposed rule, concerns about the impact of various has an appropriate mechanism for
and the CBNRAC members may provide regulatory approaches. weeding out frivolous or vindictive
formal written negative or positive The negotiated rulemaking process for complaints while ensuring that
comments on those changes and on the charter service regulation resulted in substantive complaints contain the
other parts of the proposed rule that a complete overhaul of the regulation. necessary information to inform all
might be connected to that issue. This was done in response to parties involved. Further, while the
A complete description of the ground longstanding concerns that the existing existing regulations contain an option
rules is contained in the docket for this regulation is hard to understand because for a hearing, there are no procedures
rulemaking. it is unclear about what activities for a hearing. This NPRM contains
Finally, the CBNRAC reached constitute ‘‘charter service.’’ In addition, procedures for a hearing if a complaint
consensus on the issues the committee members of the CBNRAC agreed that the merits one.
would consider during its negotiations. existing exceptions to the prohibition on To summarize, the proposals
The committee agreed to consider the charter service should be clarified. contained in this NPRM represent
four issues included in the Conference Concerns were also raised about the consensus language and informed
Committee report: complaint process. Some members felt decisions by FTA. The complete rewrite
of part 604 has been a long time in the should be an hourly annual limit for regulation, then the recipient would
making, and is necessary. It is the hope this exception, but could not reach only need to record the charter service
of FTA that the clarifications made in consensus on the number of hours. The in order to provide it. If the organization
this proposal will assist public transit public transit caucus proposed an does not receive Federal funds from the
agencies in complying with charter annual limit of 125 charter service programs listed in Appendix A, but
service regulations and ensure that all hours. The private charter caucus serves individuals described in this
parties understand when compliance proposed an annual limit of 80 charter section, then the organization would
has been achieved. service hours. Neither caucus explained need to register on FTA’s Charter
why one limit should prevail over the Registration Web site and the recipient
IV. Conference Committee Report other. would need to record the charter
Issues Since this is a new exception to the service. FTA will provide Appendix A
Issue #1: Limited Exceptions for charter regulations, FTA proposes to in the final rule and will update it from
Providing Community-Based Charter accept the private charter caucus’ time to time as new Federal programs
Services annual limit of 80 hours of charter are created to assist individuals and
service to government officials for non- organizations covered by this exception
Under the current regulations transit related purposes within the or when a party sends a petition to the
governing charter service, an FTA recipient’s geographic service area. In Administrator requesting an update to
recipient is generally prohibited from accepting this proposal, however, FTA Appendix A.
providing charter service unless one of believes that extenuating circumstances
the exceptions applies. The existing may arise where additional hours may (c) Leasing FTA-Funded Equipment and
exceptions are: (1) When there is no be necessary. As a result, FTA added a Drivers
‘‘willing and able’’ private charter provision to allow for additional charter The existing exception under the
operator; (2) leasing equipment; (3) rural service hours under this exception, at charter regulations allows for a recipient
hardship; (4) special events; (5) non- the Administrator’s discretion, in rare or to lease equipment to a private charter
profit organizations serving individuals unusual circumstances, if the recipient operator if the private charter operator
with disabilities; (6) non-profit social submits a written request: (1) Describing receives a request that exceeds its
service agencies listed in Appendix A; the event; (2) explaining why registered capacity, or the private charter operator
(7) non-profit organizations serving low- charter providers in the geographic does not have equipment accessible to
income or transit-dependent persons; (8) service area cannot perform the service the elderly or individuals with
rural non-profit organizations serving (e.g., equipment, time constraints, or disabilities. The CBNRAC reached
the elderly; and (9) formal agreement other extenuating circumstances); (3) consensus on maintaining this
with all willing and able private charter describing the number of charter service exception with a few minor changes.
operators. hours requested to perform the service; First, the private charter operator would
The CBNRAC agreed that the revised and (4) presenting evidence that the have to be registered on the FTA Charter
regulation should also contain recipient has sent the request for Registration Website. Second, the
exceptions. The committee reached additional hours to registered charter private charter operator would have to
consensus on six exceptions: (1) providers in its geographic service area. own and operate a charter service
Government officials; (2) qualified FTA would review the request and business. Third, the private charter
human service organizations; (3) leasing respond to the recipient. The recipient operator would have to exhaust all
equipment; (4) events of regional or would then be responsible for emailing available vehicles from other private
national significance; (5) when no FTA’s response to the registered charter charter operators in the recipient’s
registered charter provider responds to providers in its geographic service area. geographic service area. Fourth, the
notice from a recipient; and (6) As with all exceptions under the recipient would have to record the
agreement with registered charter proposed regulation, the recipient vehicles leased and retain the
providers. We discuss each of these would be responsible for recording the documentation provided by the private
exceptions below. We also discuss one service in an electronic log. charter operator that demonstrates
exception where the committee could compliance with the first three
not reach consensus, which was the (b) Qualified Human Service requirements.
‘‘hardship’’ exception. We have added Organizations
This exception would essentially (d) Events of National or Regional
an exception that the committee did not
collapse three exceptions contained in Significance
consider, but due to past and recent
events, we believe should be added; an the existing regulation pertaining to the This exception in the current
exception for the Administrator. Finally, elderly, individuals with disabilities, regulation requires a petition to the
we discuss three sub-issues for all and low-income individuals into one Administrator personally in order to
exceptions: Reporting requirements, exception for ‘‘qualified human service provide charter service for a special
fully allocated costs, and recipients with organization.’’ Consistent with the event. The only limitation is that the
1,000 or more buses in peak hour President’s Executive Order on Human service can be provided ‘‘to the extent
service. Service Transportation Coordination that private charter operators are unable
(February 24, 2004), the CBNRAC to provide the service.’’ The CBNRAC
(a) Government Officials reached consensus on allowing reached consensus on retaining this
This is a new exception to the charter recipients to provide charter service to exception, but with a more formal
regulations and would allow recipients ‘‘persons with mobility limitations process for petitioning the
to provide charter service to government related to advanced age, persons with Administrator. The revised exception
officials for non-transit related purposes disabilities, and persons struggling for would require recipients to first consult
as long as the recipient provides the self-sufficiency * * *’’ If an with private charter operators registered
service in its geographic service area, organization serving the above in the recipient’s geographic service
does not generate revenue (except as individuals also receives funds from one area. After consultation, the recipient
required by law), and records the trip. or more of the 65 Federal programs to may petition the Administrator only if
The CBNRAC also agreed that there be listed in Appendix A to the the recipient (1) submits the petition at
least 90 days before the event; (2) enter into an agreement with those needed, duration of the event, and
describes the importance of the event, registered charter providers by February explains how provision of the charter
the amount of charter service needed, 15th of each year. service is in the public’s interest.
and how private charter operators will Recipients granted an exception under
1. Additional Exceptions
be utilized; and (3) files the petition in this section would need to retain the
the special events docket. The (i) ‘‘Hardship’’ record of approval from the
Administrator would review the The CBNRAC was unable to reach Administrator for three years and
petition, request any additional consensus regarding the ‘‘hardship’’ include the approval in its electronic
information necessary to make a exception that currently exists in the records for quarterly reporting on the
decision, and then post the decision in Charter Registration Web site.
charter regulation. This exception is
the special events docket. The
intended to allow non-urbanized (rural) (2) Reporting Requirements for All
Administrator’s approval of a petition
areas to provide charter service if a Exceptions
under this exception would be limited
private charter operator’s provision of
to the event described in the petition.
this service would create a hardship on The CBNRAC agreed that for most of
(e) When No Registered Charter the customer because the private charter the exceptions a recipient must record
Provider Responds to Notice From a operator imposes a minimum duration certain information about the charter
Recipient that is longer than the trip length or the service provided. Specifically, the
The existing regulation allows a private charter operator is located ‘‘too committee reached consensus on
recipient to provide any and all charter far’’ from the origin of the charter reporting that would require recipients
service to the extent that there are no service. to record an organization’s name,
private charter operators interested in The CBNRAC could not reach address, phone number, e-mail address,
providing the service. The CBNRAC consensus on what constitutes ‘‘too far.’’ date and time of service, number of
reached consensus on retaining this The private charter caucus proposed passengers, destination, trip length
exception, but with a modification retaining the exception as is. The public (miles and hours), fee collected, and
designed to make the whole process transit caucus offered to replace ‘‘too vehicle number. This would be required
more responsive. As noted earlier, the far’’ with ‘‘deadhead time exceeding for charter service provided under the
implementation of an FTA Charter total trip time from initial pick-up to exceptions for government officials,
Registration Website would allow final drop-off.’’ qualified human service organizations,
recipients and registered charter FTA proposes to retain the hardship hardship, and when no registered
providers to respond in real time exception and replace ‘‘too far’’ with the charter provider responds to a notice.
regarding charter service requests. public transit caucus’ proposal. We For the leasing equipment exception,
Under this exception, a registered believe that this proposal sufficiently the recipient would have to record the
charter provider would have 72 hours to clarifies what is meant by ‘‘too far’’ registered charter provider’s name,
respond to a request for charter service without opening up the exception to address, telephone number, number of
to be provided in less than 30 days and abuse. vehicles leased, types of vehicles leased,
14 days to respond to a request for (ii) Administrator’s Discretion vehicle identification numbers, and
charter service to be provided in more documentation presented to the
than 30 days. If a registered charter FTA proposes to add a new exception recipient in support of the rule’s
provider responds to the request, then to address unique situations in which it requirements. A recipient would have to
the recipient may not provide the may not be practical or feasible to
retain this information in an electronic
service, even if the registered charter provide notice to registered charter
format and for at least three years. The
provider and the customer are not able providers. Specifically, FTA proposes
recipient would also identify in the
to agree upon a price. Alternatively, if an Administrator’s discretion exception
record the exception that the recipient
no registered charter provider responds that would allow the Administrator to
relied upon when providing charter
to a request, then the recipient may personally approve a recipient’s use of
service.
provide the service so long as it records Federally-funded assets to provide
the proper information in an electronic charter service for such events as The CBNRAC could not reach
log. funerals of local, regional, or national consensus on whether or not the above
significance. Such an event is electronic records should be posted on
(f) Agreement With Registered Charter unanticipated and requires an the Charter Registration Web site. The
Providers immediate response. For example, the public transit caucus believes that
This exception in the current deaths of Presidents Ronald Reagan and posting their electronic records to a
regulation allows a recipient to enter Gerald Ford underscore the need for public Web site may implicate privacy
into an agreement with all private flexibility when using Federally-funded concerns. That caucus instead favors the
charter operators in its geographic assets to assist in funeral preparation provision of records via e-mail upon
service area to allow it to provide activities and on the day of the funeral. request. The private charter caucus
charter service directly to a customer. Thus, FTA proposes an Administrator’s insisted that electronic records should
The CBNRAC reached consensus on discretion exception to the charter be posted to the Web site in order to
retaining this exception with certain regulations. A recipient would have to facilitate transparency. FTA agrees with
modifications to account for the use of submit a written request, by facsimile or the private charter caucus, but also
the Charter Registration Website instead e-mail, that describes the event, recognizes that there may be some
of the annual willing and able process. describes the charter service requested, situations where certain information
Under the revised exception, the explains the time constraints for should not be posted on the Web site.
recipient would have to ascertain providing the charter service, describes Thus, FTA proposes to include a
registered charter providers in its the anticipated number of charter provision in the regulation that allows
geographic service area from the Charter service hours needed for the event, the recipients to provide only generalized
Registration Website by January 30th of type of equipment requested, origin and destination information
each year. The recipient would have to approximate number of vehicles when safety or security is an issue.
(3) Fully Allocated Costs competition with transit operators that docket. We believe this level of
The CBNRAC was unable to reach receive subsidies from FTA. transparency would go a long way
consensus on whether the concept of toward informing the public as to which
(4) 1,000 or More Buses in Peak Hour
‘‘fully allocated costs’’ should apply to transit agencies do not provide charter
Service
public transit agencies that provide service (exemption docket); private
The CBNRAC reached consensus on charter operators as to when a public
charter service. The public transit limiting the application of two
caucus felt as though the requirement transit agency requests a special event
exceptions—qualified human service exception (special event docket); when
would be a barrier to providing organizations and government
community-based transportation, but FTA provides formal advice to private
officials—to recipients with 1,000 or charter operators and recipients
the private charter caucus argued that more buses in peak hour service. The (advisory opinion docket); when a
the requirement is necessary to protect public transit caucus requested this complaint has been filed against a
private charter operators. limitation, but the private charter
In the past, FTA required public transit agency (complaint docket); and
caucus wholly supported it because of when a complaint has been referred for
transit agencies to recover fully the potentially negative impact on a hearing (hearing docket). The
allocated operating and capital costs private charter operators in urban areas CBNRAC reached consensus on this
and ensure that the charter service did where there are higher concentrations of issue.
not interfere with the intended use of qualified human service organizations
the asset. FTA allowed this ‘‘incidental and government officials. Both caucuses Issue #3: How Can Enforcement of
use’’ because it believed the charter viewed the potential number of requests Violations of the Charter Bus
service provided supported the mission as problematic and felt that it was in Regulations Be Improved?
of FTA. each caucuses’ interest to place a The CBNRAC reached consensus on
We propose to eliminate the concept limitation on those two exceptions. FTA improved enforcement of charter service
of ‘‘fully allocated costs.’’ The requests comments from qualified regulations by focusing on deterrence of
exceptions included in the proposed human service organizations and risky behavior. Members of the
regulation would allow recipients to governmental officials on the practical committee noted that the seminal
provide charter service that is in the impact of this limitation in the final question regarding enforcement is:
public interest, and is consistent with regulation. ‘‘What is charter service?’’ For the
the overall mission of public transit public transit caucus, it is important to
operators as mobility managers within Issue #2: How Can We Better
protect the public transit agency’s
their communities. Hence, the charter Communicate Charter Administration
ability to provide public transportation
service that would be allowed under the and Enforcement to the Public?
and serve its community. This includes
proposed rule would be an incidental The CBNRAC reached consensus on the ability to modify routes to address
use of FTA-funded equipment and the use of Internet technology to congestion or improve mobility for the
facilities, and the recovery of fully improve communications regarding the elderly, disabled or low-income
allocated costs would not be required. charter service regulations. Members of populations. For the private charter
Further, in the case of service the committee acknowledged that caucus, charter service by public transit
provided to ‘‘qualified human service virtually all private charter companies agencies should not be ‘‘dressed up’’ to
organizations,’’ the Federal Interagency and public transit agencies have access look like public transportation. The
Coordinating Council on Access and to the Internet and to email. The ability private charter caucus believed that
Mobility is currently engaged, in to maintain lists of private charter service for special events of an irregular
cooperation with the Office of companies, informing the public about nature constitutes charter service and
Management and Budget, in developing allowable activities for public transit the public transit agencies should be
cost allocation principals to share fairly under the charter service regulations, prohibited from providing such service
the costs of human service and posting FTA decisions and unless there is no private charter
transportation. To require FTA complaints were all cited as valuable operator interested in performing the
recipients to recover fully allocated ways to use the Internet. service.
costs from those qualified human To effectuate the Internet-based The proposed regulation would
service organizations, including a share approach, FTA would develop a Charter implement a new remedial scheme,
of capital costs already subsidized by Registration Web site that would serve giving the decision-maker discretion to
FTA, would impose unfair conditions as a single point of contact for private determine the type and amount of the
on those interagency deliberations. charter operators, recipients, and remedy based on a number of relevant
That being said, FTA encourages and members of the public to obtain factors, including, but not limited to, the
expects recipients that provide charter information regarding charter service in gravity of the violation, the revenue
services under the provisions of part their geographic area. In addition, while earned by providing charter service, and
604 to develop fair charges to recover as FTA currently posts decisions regarding the operating budget of the recipient.
much as possible of the marginal charter complaints on its Web site, The remedy could take the form of
operating cost of the service, consistent under the revised regulation, we withholding a ‘‘reasonable percentage’’
with the public purpose of the charter propose to make better use of the of available Federal financial assistance,
service, and the ability of the requesting Department’s Docket Management a complete bar on receiving future
entity to pay. As noted earlier, under System (DMS) by establishing an Federal funds, or a refund to the U.S.
section 604.12, if a registered charter exemption docket, special event docket, Treasury of revenue collected in
provider responds to the request for advisory opinion docket, complaint violation of the rule.
charter service, the recipient may not docket, and hearing docket. These Besides flexibility in the assessment
provide the service, even if the private dockets would be available 24 hours a of a remedy, the CBNRAC reached
charter operator’s fee for the service day and seven days a week. Further, consensus on several other ways to
prevents the requester from purchasing DMS has listserv capabilities so that the improve the enforcement process,
the trip. This provision protects the public can receive notice each time the specifically (1) issuing advisory
private charter industry from government places a document in the opinions and (2) conducting
investigations. The CBNRAC could not complaint. The proposed revision having FTA headquarters make the
reach consensus on whether the would also allow FTA to investigate on initial decision regarding the complaint.
following measures should be included its own initiative. After an investigation The private charter caucus contended
in a new and improved charter service is complete, FTA may dismiss the that FTA headquarters is biased in favor
enforcement regime: (1) Cease and complaint, issue an initial decision of public transit agencies regarding
desist orders, (2) using neutral decision- based on the pleadings to date, or refer charter service complaints. Thus, the
makers, and (3) considering a pattern of the matter to a neutral decision-maker private charter caucus favors the use of
violations as an aggravating factor to any for a hearing. an Administrative Law Judge (ALJ) to
remedy assessed. We discuss each of make the initial decision regarding a
(c) Cease and Desist Orders
these issues below. complaint.
The CBNRAC was unable to reach After careful consideration of the
(a) Advisory Opinions consensus on whether advisory above positions, and considering FTA’s
CBNRAC reached consensus that the opinions should also offer an limited resources, we propose to
new rule should incorporate a provision opportunity to request a cease and include a new provision in the proposed
enabling public transit agencies and desist order. The public transit caucus regulation that would allow a
registered charter providers to obtain worried that such an order could be headquarters office to make an initial
advisory opinions on a case-by-case issued wrongfully, thus preventing decision regarding a charter service
basis regarding whether or not a public transit agencies from providing complaint or to refer the matter to a
particular type of transportation would public transportation. The private neutral decision-maker (Presiding
constitute charter service. These charter caucus encouraged the inclusion Official) for a hearing. The Presiding
advisory opinions would serve as a of a cease and desist provision as a way Official might be an Arbitrator or other
mechanism for expedited review by to prevent financial harm to private hearing officer and the parties to the
FTA before the recipient performs the charter operators without going through proceeding would be the public transit
service. Through this mechanism, a full-blown complaint and hearing agency and the complaining party. The
recipients and registered charter process. Presiding Official would then issue a
providers alike would receive formal This NPRM does not include a cease recommended decision to an
advice about compliance with charter and desist provision. While FTA appropriate headquarters office that
service requirements. An advisory believes that a properly worded cease would reject, ratify, or adopt with
opinion would represent the formal and desist provision would protect modifications the recommended
position of FTA on a matter and may be against ‘‘wrongfully’’ issued cease and decision. Any initial decision may be
used in administrative or court desist orders, we are reluctant to appealed to the Administrator. This
proceedings. The advisory opinion implement a cease and desist process proposed process allows FTA to make a
would be limited, however, to the because FTA does not have the human determination that a hearing is
factual circumstances described in the resources to administer a cease and unnecessary and issue an immediate
request and would not be binding upon desist provision. FTA is concerned that decision based on the pleadings to date
a decision-maker adjudicating a charter interested parties would inundate the or to refer the matter for a hearing. We
complaint. agency with cease and desist requests. believe that this approach is less
Advisory opinions represent a more Furthermore, we believe that revisions resource intensive but still provides a
formalized ‘‘letter of determination,’’ to the charter service definition, neutral decision-maker for more serious
which is currently issued when private coupled with clear exceptions and cases that require a hearing.
charter operators or recipients seek strong remedies for violations of the
regulatory advice from FTA before regulation provide sufficient protection (e) Pattern of Violations
providing charter service. This more of a private charter operator’s financial As part of the revised rule’s more
formal process would provide interest. rigorous enforcement scheme, the
transparency and consistency regarding proposed regulation contains language
(d) Neutral Decision-Maker that would increase any remedy ordered
FTA’s advice. The CBNRAC reached
consensus on this issue. During the CBNRAC negotiations, if the decision-maker determines that
members of the committee expressed there is a ‘‘pattern of violations.’’ The
(b) Investigations the deeply held belief that FTA CBNRAC could not reach consensus on
Another way to improve enforcement decisions regarding charter service this issue. The private charter caucus
is to ensure that a complaint filed has complaints are inconsistent. Both believed that more than one violation of
a substantive basis. Members of the caucuses described experiences of the charter service regulations should
CBNRAC raised concerns regarding the receiving inconsistent decisions from incur a severe penalty. The public
filing of incomplete complaints or FTA regarding whether a particular transit caucus believed that more than
frivolous complaints. Thus, the service is prohibited charter service. one violation of the same requirement
proposed regulation includes a new The private charter caucus also stated should be treated more severely. The
provision allowing FTA ninety days to that FTA was biased in favor of public public transit caucus argued that more
conduct an investigation regarding a transit agencies by advising agencies on than one violation of different charter
complaint. This provision is consistent how to tailor the charter service so as to service requirements should not
with the statutory requirement: ‘‘On look like public transportation. As a constitute a pattern of violations,
receiving a complaint about a violation consequence, members of the committee because the public transit agency is
of an agreement, the Secretary of agreed that decision-making regarding unlikely to know what constitutes a
Transportation shall investigate and charter service complaints should be violation of the charter service
decide whether a violation has removed from the regional offices and regulations until FTA informs the
occurred.’’ 49 U.S.C. 5323(d) (2). Thus, sent to FTA headquarters. The caucuses public transit agency of the violation.
the CBNRAC reached consensus on differed, however, on who should As will be discussed later in the
revised regulatory language that would render a determination once a definitions section of this NPRM, we
allow FTA to conduct an investigation complaint is sent to FTA headquarters. propose to define a pattern of violations
after a registered charter provider files a The public transit caucus favored as: ‘‘more than one finding of non-
compliance of this Part by FTA complete and concise statement of the during the investigation of the
beginning with the most recent finding facts relied upon in filing the complaint, complaint.’’ 49 CFR 604.20(b). Members
of noncompliance and looking back over and submit all documents offered in of the committee viewed that provision
a period of 72 months.’’ We intend to support of the complaint. as too limiting, and advocated for
apply this definition in the ‘‘remedies’’ Additionally, the CBNRAC reached broader discretion. Thus, the new
section of the rule. Under that section, consensus on new filing and service provision would allow an appeal so
if the decision-maker determines there provisions. In the past, there were long as the appellant meets the relevant
is a pattern of violations, then the instances where the complainant failed deadlines. Further, even if the appellant
decision-maker ‘‘shall bar a recipient to notify the public transit agency. has not filed an appeal, the
from receiving Federal transit assistance Instead, the FTA regional office sent the Administrator, on his or her own
in an amount * * * considered complaint. The revised regulation motion, may review an initial decision.
appropriate.’’ This means that a public would require a complainant to file the As noted earlier, the initial decision
transit agency violating the charter complaint with the public transit agency would be made either by a headquarters
service regulation for the first time and send proof of service to FTA office or by an Arbitrator after a hearing
would be treated differently, and less headquarters. Furthermore, the and ratification by a headquarters office.
severely, than a public transit agency committee agreed that associations may Additionally, the new regulation would
that has violated the charter service file a complaint as a duly authorized set out specific timeframes for FTA to
regulations more than once over the past representative of a registered charter make decisions regarding the complaint
six years. Further, we determined that provider. The private charter caucus and appeal. Specifically, the initial
looking at a six year period would be advocated for this position so that decision would have to be issued 110
sufficient to determine whether the registered charter providers who work days after the investigation is complete.
public transit agency has a history of with public transit agencies would not A decision on an appeal would have to
non-compliance with the charter service have to file a complaint directly. Even be made within 30 days.
regulations. FTA believes that the new so, the association would have to
provision on ‘‘pattern of violations’’ identify on whose behalf the complaint (b) Conciliation Period
would deter conduct that leads to is filed. The committee also determined that
complaints, would reduce the number Moreover, we would appreciate
the mandatory conciliation period in the
of complaints, and would promote comments on how to address State
existing rule was almost never used and
consultation with FTA. involvement in the complaint process.
had no effect other than delaying the
For instance, in the case of a complaint
Issue #4: How Can the Charter adjudicatory process. The committee
against a rural transit operator funded as
Complaint and Administrative Appeals recommended that FTA remove this
a subrecipient of a State under section
Process Be Improved? 5311, we propose that the private requirement from the new rule and
All CBNRAC members agreed that the charter provider should submit a instead include a statement that
complaint process should be designed complaint with the State Department of encourages the parties to resolve their
so as to produce consistent decisions on Transportation (FTA’s direct recipient) dispute informally before filing a
charter bus complaints. The perceived first. If the State Department of complaint. Thus, we proposed not to
inconsistency in past charter decisions Transportation cannot resolve the include a conciliation period in the
by FTA was attributed in part to region- complaint, then the private charter revised regulation.
based adjudication under the current operator would proceed under subpart (c) Removal From Charter Registration
rule. The committee expressed concern F. This option was not presented to the Web Site
over the diverse approaches for CBNRAC and we have not revised
addressing charter violations taken by regulatory text to reflect this proposal. The CBNRAC reached consensus on
different regions. To this end, the We would, however, appreciate providing a new provision that allows
committee recommended that regional comment on the topic. registered charter providers or
offices should no longer handle charter In addition to a more detailed recipients to file a complaint
complaints. Instead, complaining complaint process, the CBNRAC agreed challenging the registration of a private
parties would bypass the regional that the appeals process should have charter operator or qualified human
offices and file their complaints directly more flexibility, the conciliation period service organization on the Charter
with the FTA Office of the Chief should be eliminated, parties should be Registration Web site. Members of the
Counsel. FTA headquarters would able to complain about a private charter committee approved of this provision
receive complaints, post complaints in a operator or qualifed human service because it would allow the removal of
complaint docket, and investigate organization’s registration on the FTA private charter operators that act
alleged violations. Charter Registration Web site, and it vindictively when responding to
Furthermore, the committee reached should be easier for FTA to dismiss requests for charter service. In other
consensus on a more detailed complaint incomplete or non-substantive words, a private charter operator that
process. The existing rule only requires complaints. Each of these points is responds affirmatively to a notice from
the filing of a complaint that ‘‘is not discussed below. a recipient requesting charter service
without obvious merit and that * * * but then does not contact the customer
states grounds on which relief may be (a) Appeals or negotiates in bad faith with the
granted.’’ This generalized pleading The CBNRAC reached consensus on customer could be removed from the
process has led to frivolous filings or an improved appeals process that gives Web site and not receive future requests
complaints that do not contain enough the Administrator discretion to take an for charter services. The proposed
information to determine the violation appeal or modify an initial decision. regulation sets out specific reasons why
of the charter service regulations. The Previously, the Administrator could FTA could remove a registered charter
revised regulations would require a only consider an appeal if ‘‘the provider from the registration list. In
complainant to identify the specific appellant presents evidence that there addition, we plan to develop an
provisions of the charter service are new matters of fact or points of law Appendix B that would set out
regulation allegedly violated, provide a that were not available or not known examples of each basis for removal.
On the other hand, a registered The Charter Registration Web site believe, however, that private charter
charter provider could file a complaint would serve as a database of private operators should be required to provide
to remove a qualified human service charter operators who are interested in such information.
organization from the registration list. receiving notice from recipients
(a) Registration of Qualified Human
FTA may remove a qualified human regarding requests for charter service. In
Service Organizations
service organization for the same order to register, private charter
reasons a registered charter provider operators would have to answer several In addition to registering private
may be removed from the registration questions about their business and the charter operators, the Charter
list (e.g., bad faith and lack of geographic areas they serve. Recipients, Registration Web site would also serve
documentation). upon receiving a request for charter as a database for qualified human
Thus, under this new process, a service that a recipient is interested in service organizations that do not receive
complaint would be filed electronically providing, would be required to send an funding from the Federal programs
in the complaint docket and a response email to registered charter providers listed in Appendix A to the regulation.
would be required in seven days. FTA listed on FTA’s Charter Registration In order to register, qualified human
would then consider the complaint and Web site in the recipient’s geographic service organizations would have to
response and issue a decision in ten service area. The notification would answer several questions about their
business days. FTA’s decision would be have to be sent by close of business on organization, its funding, and its
posted in the complaint docket and the day the recipient receives the mission.
would identify the reasons for removing request, unless the recipient received After registering, these qualified
or allowing the private charter operator the request after 2 p.m., in which case human service organizations would be
or qualified human service organization the recipient would have to send the eligible to receive free or reduced rate
on FTA’s Charter Registration Web site. notice by the close of business the next charter services from either recipients or
If removal is ordered, the decision business day. The recipient may then registered charter providers. The
would identify the length of time for provide charter service if no registered committee reached consensus on this
removal and when the party may charter provider responds to the notice issue.
reapply for registration. within 72 hours for charter service FTA requests comment from qualified
requested to be provided in less than 30 human service organizations, not
(d) Dismissals days; or within 14 calendar days for receiving funding from the Federal
Furthermore, to ensure the integrity of charter service requested to be provided programs listed in Appendix A, on the
the complaints filed, the CBNRAC in 30 days or more. The recipient would practical impact of these registration
reached consensus on new provisions have to retain an electronic copy of the requirements.
that would allow FTA to dismiss a notice and the list of registered charter Issue #6: A New Exception for
complaint, without prejudice, if it is providers notified of the requested Transportation of Government
incomplete. FTA may also dismiss a charter service for a period of at least Employees, Elected Officials, and
complaint, with prejudice, if the three years from the date the notice was Members of the Transit Industry To
complaint, on its face, is outside the sent. The recipient would also record Examine Local Transit Operations,
jurisdiction of FTA, fails to state a claim certain information about the charter Facilities, and Public Works
that warrants further investigation, or if service for purposes of quarterly
reporting. Members of the CBNRAC The CBNRAC reached consensus on a
the complainant lacks standing to file
expressed approval of this real-time new applicability provision for the
the complaint.
process over the existing annual charter service regulations. Under the
V. Additional Issues Considered by the notification process. new provision, the charter service
CBNRAC The CBNRAC could not reach regulations should not apply to a
consensus on whether a private charter recipient transporting its own
Issue #5: A New Process for Determining
operator should be required to answer employees, other transit system
If There Are Private Charter Bus
whether it would provide free or employees, management officials,
Companies Willing and Able To Provide
reduced rate services to qualified contractors and bidders, government
Service That Would Utilize Electronic
human service organizations. The officials and their contractors and
Notification and Response
public transit caucus argued in favor of official guests to or from transit facilities
The CBNRAC discussed this issue such a requirement while the private or projects within their geographic
because the private charter caucus and charter caucus argued against a service area for the purpose of
public transit caucus were close to an requirement and advocated instead that conducting oversight functions such as
agreement on this issue during previous it be optional. inspection, evaluation, or review.
negotiations before the formation of the The proposed regulation includes During the discussions on this issue,
CBNRAC. Essentially, the committee language that would make it optional for members of the CBNRAC noted that
viewed the current ‘‘willing and able’’ a private charter operator to indicate movement of transit employees or
process as protection for private charter whether they would provide free or officials for transit purposes is simply
operators from unsuccessful reduced rate charter services to not charter service. Further, as
negotiations with customers who might qualified human service organizations. discussed in greater detail in the next
expect lower prices from public transit We believe that private charter operators section, under the new definition of
agencies. The current process also wish to support their communities in charter, movement of transit employees
allows public transit agencies to provide the same way that many recipients from one work station to another is also
charter service when there is no private support their communities and that they not charter service. The CBNRAC also
charter operator interested in would likely take advantage of this reached consensus on the following
performing the service. Even so, the option because qualified human service applicability provisions:
committee recognized that the existing organizations can conduct a search on (a) The charter service regulations
willing and able process is outdated and the Charter Registration Web site to look would not apply to a recipient that
agreed to eliminate it in favor of a web- only for those private charter operators transports its employees, or other transit
based registration process. with free or reduced rates. We do not system employees or officials for
emergency preparedness planning and (a) Definition of Charter Service that occur on an irregular basis or for
operations. CBNRAC was unable to come to an limited duration; or (3) shuttle services
(b) The charter service regulations agreement on the definition of the term limited to a group of individuals
would not apply to recipients of 49 ‘‘charter service.’’ The controversy pursuant to a contract with an
U.S.C. 5310, 5316, or 5317 funds, when centered on a particular category of institution, university, corporation or
used for program purposes. transportation service provided on an government.
(c) The charter service regulations We also include in the definition
irregular basis for occasional local
would not apply in the case of local, examples of what is not charter service.
events such as golf tournaments,
regional, or national emergencies lasting Specifically, we propose that the
festivals, state fairs, July 4th
fewer than three days. Otherwise, the following do not constitute charter
celebrations, flower shows, home
recipient would have to follow the service: (1) Adding equipment or days
shows, and sporting events. The public
provisions of 49 CFR part 601 subpart to an existing route; (2) extending
transit caucus considers open-door bus
D. service hours on an existing route; (3)
service to these types of events to be demand-responsive service that is part
(d) The charter service regulations public transportation that serves the
would not apply to a non-urbanized of coordinated public transit human
community at large (by providing traffic service transportation; and (4) new or
area transporting its employees outside mitigation and other public benefits)
of its geographic service area for training modified service that is open to the
even though the transit agency may public, where the recipient establishes
purposes. need to create new or modified routes and controls the route and the service
The CBNRAC could not reach on a temporary basis for the duration of continues from year to year.
consensus on whether the charter the event in order to provide the service. In an effort to provide further
service regulations apply to private The private charter caucus believes that clarification of what service would be
charter operators receiving funds, such services constitute ‘‘charter considered charter service or public
directly or indirectly, from programs service’’ because a third party event transportation, FTA will publish an
under 49 U.S.C. 5307, 5309, 5310, 5311, sponsor is usually involved through Appendix C with the final rule that
5316, 5317 or section 3038 of the some type of contractual arrangement; a contains more examples and frequently
Transportation Equity Act for the 21st new, temporary route has to be created asked questions. We would appreciate
Century. The private charter caucus to transport people to and from the comments with questions that should be
requested this provision because it event (as opposed to published, regular included in Appendix C.
believes that the receipt of Federal transit routes); and because the service
funds should not hinder the private is not continuous, and lasts only for the (b) Definition of Pattern of Violations
charter operator’s ability to conduct its duration of the event. Despite lengthy The CBNRAC did not reach agreement
business. The public transit caucus discussions and an exchange of various on the definition of ‘‘pattern of
asserted that private charter operators proposals between the two sides, these violations.’’ Some participants
receiving Federal funds should be differences could not be resolved by the advocated that the term should mean
subject to the same limitations as public committee. We recommend that ‘‘more than one instance of
transit agencies. interested parties review the docket for noncompliance with charter service
We propose to include this provision the exact proposals offered by each regulations.’’ Under this interpretation,
because the receipt of funds from the caucus. FTA could find in a single decision that
Federal government should not interfere In response to the discussions held by a transit agency engaged in a pattern of
with a private charter operator’s the CBNRAC, we propose a definition of charter service violations. A pattern
business. This regulation has its genesis charter service that recognizes concerns could be established, for instance, if the
in the protection of the private charter raised by each caucus and provides public transit agency’s one-time
operators from unfair competition by examples of what would be considered provision of charter service violated
public transit agencies. To subject charter service. In providing this several requirements of the charter
private charter operators to the charter definition of charter service, we note service rule.
service regulations undermines the very that the term ‘‘buses’’ includes rubber- Others sought a more limited
purpose of these regulations. tire replica trolleys. definition, whereby a recipient commits
First, the caucuses were able to agree, a pattern of violations of the charter
Issue #7: Review and Clarify, as
although they did not reach consensus, service regulations only if FTA makes a
Necessary the Definitions of Regulatory
on the proposition that charter service series of findings of successive charter
Terms
has three components: The service violations over a period of time.
One of the main points of contention transportation of a group of persons Still others advocated a definition that
for the CBNRAC was the definition of pursuant to a single contract with a recognizes a pattern only if the same
‘‘charter service’’ and ‘‘pattern of third party; a fixed charge; and an regulation is violated more than once
violations.’’ For all other definitions, the itinerary determined by someone other over a period of time.
CBNRAC was able to reach consensus. than the public transit agency. The We propose to adopt a definition of
Additionally, since the conclusion of CBNRAC agreed that these three pattern of violations that looks at
the negotiations, we decided that elements would have to be present in violations over a period of time. The
definitions of ‘‘qualified human service order for a particular service to be violation need not be a violation of the
organization’’ and ‘‘charter service considered charter service. same regulation, although it could be, in
hours’’ are necessary. Thus, what Second, members of the CBNRAC felt order for FTA to find a pattern of
follows is a discussion of the it was important to provide examples of violations. Further, we propose to look
negotiations regarding the definitions of what is and is not charter service. Thus, at the recipient’s six-year history to
charter service and pattern of violations. we propose a definition that includes determine whether or not it has engaged
We also offer our proposed definitions three examples of charter service: (1) in a pattern of violations. Thus, a
of qualified human service organization, Use of buses or vans to transport school violation in the year 2006 means that
charter service hours, and special students, school personnel or school FTA could look back to the year 2000
transportation. equipment; (2) shuttle service to events to determine whether other violations
exist, which would constitute a pattern exclusively for the elderly and persons that the purpose of the regulation is to
of violations. Violations found by FTA with disabilities, and service for protect private charter operators from
in 1999 could not be used to find a workers who live in the innercity but unauthorized competition with
pattern of violations. This definition commute to a factory in the suburbs. recipients of Federal financial
strikes a balance between the need to See, H.R. Rep. No. 1785, 90th Cong., 2d assistance. There was no major
penalize recipients that routinely violate Sess., reprinted in 1968 U.S. Code Cong. discussion or disagreement on this
the charter service requirements and the Ad. & News 2941. In order to provide provision, and, therefore, we propose
need to place a time limit on how far clarity, we believe it would be helpful the language developed by the
back FTA may look for other violations. to include a definition of ‘‘special CBNRAC.
This definition, as with all provisions of transportation’’ in the proposed charter The charter service agreement has not
this rulemaking, does not take effect service regulation. Thus, we propose to been updated for over twenty years.
until FTA issues a final rule. define ‘‘special transportation’’ as This regulation updates the charter
(c) Definition of Qualified Human demand response or paratransit service service agreement, which is included in
Service Organization that is regular and continuous and is a the Grant Agreement or Cooperative
type of ‘‘public transportation.’’ Agreement entered into by the recipient
After the conclusion of negotiations,
and as we began to make decisions Issue #8: FTA Policies Relative to the of Federal funds. The CBNRAC reached
about the outstanding issues, it became Enforcement of Charter Rules and the consensus that the charter service
clear that we needed to include a Boundary Between Charter and Public agreement should incorporate by
definition of ‘‘qualified human service Transit Services in Specific reference the terms of the charter service
organization’’ in the proposed Circumstances, Such as University regulations, and, therefore, we propose
regulation. We believe this definition is Transportation and Transportation to/ to include those provisions.
necessary to elaborate on the exception from Special Events Finally, the CBNRAC was unable to
for qualified human service The committee reached consensus to agree to the terms of an exemption
organizations contained in the include an appendix to the final rule provision. An exemption provision
regulation with the Executive Order on that would provide specific examples of would allow a recipient to make an
Human Service Transportation situations that do or do not qualify as affirmative declaration that it would not
Coordination signed by the President on charter service. In close cases, the provide charter service, under any
February 24, 2004. Thus, we propose to parties affected by the rule could refer conditions, in or out of its geographic
define ‘‘qualified human service to these illustrative situations for service area. This provision was
organization’’ as an organization that guidance in making decisions about developed to address concerns by the
serves persons who qualify for human whether or not requested service would committee that recipients that do not
service or transportation-related constitute charter or public wish to provide charter service should
programs or services due to disability, transportation under the charter service be readily identifiable by the public,
income, or advanced age. regulation. other recipients, and private charter
(d) Definition of Charter Service Hours CBNRAC members reached consensus operators. The private charter caucus
We also did not present a definition to include in the proposed rule a limited supported such a provision because
of ‘‘charter service hours’’ to the exception to allow transit operators to such an exemption would assist private
CBNRAC. While the committee reached provide transportation to events of charter operators in determining when a
consensus that charter service hours is regional or national significance on a recipient is in violation of the charter
the appropriate measurement for the case-by-case basis. In order to take service regulations. The public transit
annual limit contained in the advantage of this exception, a recipient caucus did not object to the specific
‘‘government officials’’ exception, FTA would petition the Administrator after terms of the provision, but believed that
did not provide a definition of charter first consulting with registered charter no public transit agency would utilize
service hours for review by the providers in the recipient’s geographic an exemption provision.
committee. Thus, we now propose to area to determine whether registered We propose to include an exemption
define charter service hours as the total charter providers are capable of provision. The process would be for the
hours operated by buses or vans while performing the service. To be eligible for recipient to provide its declaration by
in charter service, including the hours the exception, the recipient would also the third week of September each year.
operated while carrying passengers for have to satisfy a number of conditions The recipient would file this declaration
hire and associated deadhead hours. set out in the rule. The Administrator in an exemption docket. Thus, a
would have full discretion to grant or member of the public could easily
(e) Definition of Special Transportation deny the request. determine which recipients have
The CBNRAC did not discuss the declared that they would not provide
VI. Other Revisions to the Charter
definition of special transportation charter service. If after three years there
Service Regulations
during its deliberations, but we believe are no recipients that use the exemption
the term should be defined to avoid The CBNRAC also reached consensus provision, FTA proposes to rescind that
confusion in the future. The statutory on the revision to the general purpose portion of the rule.
definition of ‘‘public transportation’’ statement and the charter service
includes a reference to ‘‘special agreement. The committee was unable Distribution Tables
transportation.’’ There is no definition to reach consensus on whether the
For ease of reference, we provide a
of ‘‘special transportation’’ in statute or regulation should contain an exemption

in the charter service regulations. provision. distribution table to indicate proposed
Legislative history, however, indicates The general purpose statement for the changes in section numbering and titles.
that the term includes service charter service regulation simply states Section Title and Number:
Old section New section
(Subpart A) (Subpart A)
Purpose .......................................... § 604.1 .......................................... Purpose ........................................ § 604.1.
Applicability .................................... § 604.3 .......................................... Applicability ................................... § 604.2.
Definitions ....................................... § 604.5 .......................................... Definitions ..................................... § 604.3.
Charter Agreement ......................... § 604.7 .......................................... Charter Agreement ....................... § 604.5.
Charter Service .............................. § 604.9 .......................................... Exceptions .................................... (Subpart B).
§ 604.9(a) ...................................... ....................................................... § 604.12(b).
§ 604.9(b)(1) ................................. ....................................................... removed.
§ 604.9(b)(2) ................................. ....................................................... § 604.10.
§ 604.9(b)(3) ................................. ....................................................... § 604.9.
§ 604.9(b)(4) ................................. ....................................................... § 604.11.
§ 604.9(b)(5) ................................. ....................................................... § 604.8.
§ 604.9(b)(6) ................................. ....................................................... § 604.8.
§ 604.9(b)(7) ................................. ....................................................... § 604.8.
§ 604.9(b)(8) ................................. ....................................................... § 604.13.
Procedures for determining if there § 604.11 ........................................ ....................................................... (Subpart C).
are any willing and able private
charter operators.
Registration of private charter op- § 604.16.
erators.
Reviewing evidence submitted by § 604.13 ........................................ ....................................................... removed.
private charter operators.
Filing a complaint ........................... (Subpart B) ................................... Complaints .................................... (Subpart F).
§ 604.15(a) .................................... ....................................................... § 604.27(a).
§ 604.15(b) .................................... ....................................................... removed.
§ 604.15(c) .................................... ....................................................... § 604.27(b).
§ 604.15(d) .................................... ....................................................... § 604.27(c).
§ 604.15(e) .................................... ....................................................... § 604.34 or 46.
§ 604.15(f) ..................................... ....................................................... § 604.32 or 33.
§ 604.15(g) .................................... ....................................................... (Subpart I).
§ 604.36.
§ 604.15(h) .................................... ....................................................... § 604.37.
§ 604.15(i) ..................................... ....................................................... § 604.45.
Remedies ....................................... § 604.17 ........................................ Remedies ...................................... § 604.47.
Appeal to Administrator and final
agency orders.
(Subpart J).
Appeals .......................................... § 604.19(a) .................................... ....................................................... § 604.48(a).
§ 604.19(b) .................................... ....................................................... § 604.48(b).
§ 604.19(c) .................................... ....................................................... § 604.48(c).
§ 604.19(d) .................................... ....................................................... § 604.48(a).
§ 604.19(e) .................................... ....................................................... § 604.48(b).
Judicial Review .............................. § 604.21 ........................................ ....................................................... (Subpart K).
§ 604.50.
Rulemaking Analyses and Notices regulatory action within the meaning of FTA welcomes comments on whether
All comments received on or before Executive Order 12866, and is not there are economic impacts from this
the close of business on the comment significant under Department of proposed regulation. Comments
closing date indicated above will be Transportation regulatory policies and regarding specific burdens, impacts, and
considered and will be available for procedures. This NPRM contains costs would be most welcome and
examination in the docket at the above revisions that are clarifying in nature. would aid us in more fully appreciating
address. Comments received after the Where possible, we have adopted whether there are cost impacts for this
comment closing date will be filed in provisions to lessen the burden on proposed rule.
the docket and will be considered to the public transit agencies while ensuring Regulatory Flexibility Act
extent practicable. In addition to late that those entities do not engage in
comments, we will continue to file unfair competition with private charter When an agency issues a rulemaking
relevant information in the docket as it operators. proposal, the Regulatory Flexibility Act
becomes available after the comment (RFA) requires the agency to ‘‘prepare
FTA has not conducted a cost analysis
period closing date, and interested and make available for public comment
for this rulemaking because the changes
persons should continue to examine the an initial regulatory flexibility
proposed do not impose any cost on the analysis,’’ which will ‘‘describe the
docket for new material. A final rule
industry. Since this rulemaking is impact of the proposed rule on small
may be published at any time after close
of the comment period. designed to protect private charter entities.’’ (5 U.S.C. 603(a)). Section 605
operators from unfair competition by of the RFA allows an agency to certify
Executive Order 12866 (Regulatory public transit agencies, the changes a rule, in lieu of preparing an analysis,
Planning and Review) and DOT should increase opportunities for if the proposed rulemaking is not
Regulatory Policies and Procedures private charter operators when the expected to have a significant economic
FTA has determined preliminarily requested service is not subject to one impact on a substantial number of small
that this rulemaking is not a significant of the community-based exceptions. entities.
The nature of this rulemaking is to Executive Order 13175 (Tribal 604.12 When no registered charter provider
prevent unfair competition by public Consultation) responds to notice from a recipient.
transit agencies with private charter 604.13 Agreement with registered charter
FTA has analyzed this action under providers.
operators. Thus, any economic impact Executive Order 13175, dated November 604.14 Administrator’s discretion.
on small entities will be a positive one. 6, 2000, and believe that the proposed 604.15 Reporting requirements for all
FTA hereby certifies that the proposals action would not have substantial direct exceptions.
for the charter service regulation effects on one or more Indian Tribes; Subpart C—Procedures for Registration
contained in this NPRM, if adopted, would not impose substantial direct and Notification
would not have a significant economic compliance costs on Indian Tribal 604.16 Registration of private charter
impact on a substantial number of small governments; and would not preempt operators.
entities. FTA invites comment from Tribal laws. Therefore, a Tribal 604.17 Notification to registered charter
members of the public who believe summary impact statement is not providers.
there will be a significant impact on required. Subpart D—Procedures for Registration of
small entities. Qualified Human Services Organizations
Executive Order 13211 (Energy Effects)
Unfunded Mandates Reform Act of and Duties for Recipients Regarding
We have analyzed this action under Charter Registration Web Site
1995
Executive Order 13211, ‘‘Actions 604.18 Registration of qualified human
This proposed rule would not impose Concerning Regulations That service organizations.
unfunded mandates as defined by the Significantly Affect Energy Supply, 604.19 Duties for recipients with respect to
Distribution, or Use,’’ dated May 18, charter registration Web Site.
Unfunded Mandates Reform Act of 1995
(Pub. L. 104–4, March 22, 1995, 109 2001. We have determined that it is not Subpart E—Advisory Opinions
Stat. 48). This proposed rule will not a significant energy action under that 604.20 Purpose.
result in the expenditure of non-Federal order and is not likely to have a 604.21 Request for an advisory opinion.
funds by State, local, and Tribal significant adverse effect on the supply, 604.22 Processing of advisory opinions.
governments, in the aggregate, or by the distribution, or use of energy. Therefore, 604.23 Effect of an advisory opinion.
a Statement of Energy Effects is not 604.24 Special considerations.
private sector, of $120.7 million in any
one year (2 U.S.C. 1532). required. Subpart F—Complaints
Regulation Identification Number 604.25 Purpose.
Executive Order 13132 (Federalism) 604.26 Complaints and decisions regarding
A regulation identification number removal of private charter operators or
This proposed action has been (RIN) is assigned to each regulatory qualified human service organizations
analyzed in accordance with the action listed in the Unified Agenda of from registration list.
principles and criteria contained in Federal Regulations. The Regulatory 604.27 Complaints, answers, replies, and
Executive Order 13132, and FTA has Information Service Center publishes other documents.
determined that this proposed action the Unified Agenda in April and 604.28 Dismissals.
would not have sufficient federalism October of each year. The RIN contained 604.29 Incomplete complaints.
604.30 Filing.
implications to warrant the preparation in the heading of this document can be 604.31 Service.
of a Federalism assessment. FTA has used to cross-reference this action with
also determined that this proposed the Unified Agenda. Subpart G—Investigations
action would not preempt any State law 604.32 Investigation of complaint.
List of Subjects in 49 CFR Part 604 604.33 Agency initiation of investigation.
or regulation or affect the States’ ability
to discharge traditional State Charter Service. Subpart H—Initial Decisions by FTA and
governmental functions. Comment is In consideration of the foregoing, FTA Referrals to a Presiding Official (PO)
solicited specifically on the Federalism proposes to revise title 49, Code of 604.34 Initial decisions and referrals to a
implications of this proposal. Federal Regulations, part 604 as set PO.
forth below: 604.35 Separation of functions.
Paperwork Reduction Act
Title 49—Transportation Subpart I—Hearings
Under the Paperwork Reduction Act 604.36 Powers of a PO.
of 1995 (PRA) (44 U.S.C. 3501 et seq.), 1. Revise Part 604 to read as follows: 604.37 Appearances, parties, and rights of
Federal agencies must obtain approval parties.
PART 604—CHARTER SERVICE 604.38 Discovery.
from the Office of Management and
Budget (OMB) for each collection of Subpart A—General Provisions 604.39 Depositions.
604.40 Public disclosure of evidence.
information they conduct, sponsor, or Sec. 604.41 Standard of proof.
require through regulations. 604.1 Purpose. 604.42 Burden of proof.
FTA has an existing approved 604.2 Applicability. 604.43 Offer of proof.
604.3 Exemption. 604.44 Record.
information collection (OMB Control 604.4 Definitions. 604.45 Waiver of procedures.
Number 2132–0543) that expires on 604.5 Charter service agreement. 604.46 Recommended decision by a PO.
December 31, 2007. FTA has 604.47 Remedies.
determined that revisions in this Subpart B—Exceptions
proposal will require an update to the 604.6 Purpose. Subpart J—Appeal to Administrator and
information collection request. 604.7 Government officials. Final Agency Orders

However, FTA believes that any 604.8 Qualified human service 604.48 Appeal from a headquarters office
organizations. initial decision.
increase in burden hours per 604.9 Hardship. 604.49 Administrator’s discretionary review
submission is more than offset by 604.10 Leasing FTA funded equipment and of a headquarters offices initial decision.
decreases in the frequency of collection drivers.
for these information requirements and 604.11 Events of regional or national Subpart K—Judicial Review
the use of electronic technology. significance. 604.50 Judicial review.
Authority: 49 U.S.C. 5323(d); 49 CFR 1.51 expects to last longer than three § 604.4 Definitions.
business days, the recipient shall follow All terms defined in 49 U.S.C. 5301 et
Subpart A—General Provisions the procedures set out in subpart D of seq. are used in their statutory meaning
§ 604.1 Purpose. 49 CFR part 601. in this Part. Other terms used in this
(g) The requirements of this Part shall Part are defined as follows:
(a) The purpose of this Part is to not apply to a recipient in a non- (a) The term ‘‘Federal Transit Laws’’
implement 49 U.S.C. 5323(d), which urbanized area transporting their means 49 U.S.C. 5301 et seq., and
protects private charter operators from employees, other transit system includes 23 U.S.C. 103(e)(4), 142(a), and
unauthorized competition from employees, transit management 142(c), when used to provide assistance
recipients of Federal financial assistance officials, transit contractors and bidders to public transit agencies for purchasing
under the Federal Transit Laws. to or from transit training outside its buses and vans.
(b) This subpart specifies which geographic service area. (b) The term ‘‘Administrator’’ means
entities shall comply with the charter
the Administrator of the Federal Transit
service regulations; defines terms used § 604.3 Exemption.
Administration or their designee.
in this Part; explains procedures for an (a) Recipients, who do not engage or (c) The term ‘‘charter service’’ means
exemption from this Part; and sets out intend to engage in charter services providing transportation service using
the contents of a charter service using equipment or facilities funded buses or vans to a group of riders
agreement. under the Federal Transit Laws, may file pursuant to a single contract with a
an affidavit certifying that they will not third party, for a fixed charge, and
§ 604.2 Applicability.
provide charter services covered by this according to an itinerary determined by
(a) The requirements of this Part shall Part.
apply to recipients of Federal financial someone other than the recipient.
(b) If a recipient files an affidavit (1) The term charter service includes,
assistance under the Federal Transit described in this section, the recipient but is not limited to, the following when
Laws, except as otherwise provided in shall not provide charter service under the conditions in paragraph (c) of this
paragraphs (b) through (g) of this any of the exceptions contained in section are met:
section. subpart B and shall be exempt from the (i) The use of buses or vans for the
(b) The requirements of this Part shall notification requirements of subpart C. exclusive transportation of school
not apply to a recipient transporting (c) The affidavit described in this
students (e.g., elementary, secondary,
their employees, other transit system section shall state:
university, or trade), school personnel,
employees, transit management I, (insert name and title), hereby swear
or school equipment;
officials, transit contractors and bidders, or affirm that (insert name of applicant
(ii) Shuttle service to events such as
government officials and their or recipient) and all contractors or
festivals, sporting events, conventions,
contractors and official guests, to or recipients through (insert name of
and similar functions that occur on an
from transit facilities or projects within applicant or recipient) will not provide
irregular basis or for a limited duration;
their geographic service area or charter service that uses equipment or
or
proposed geographic service area for the facilities funded under the Federal (iii) Shuttle services limited to a
purpose conducting oversight functions Transit Laws. specific group of individuals, provided
such as inspection, evaluation, or I, (insert name and title), also understand under an agreement with an institution,
review. that by swearing out this affidavit, (insert such as a university, corporation, or
(c) The requirements of this Part shall name of applicant or recipient) and all
government.
not apply to private charter operators contractors or recipients through (insert
name of applicant or recipient) could be
(2) The term charter service does not
that receive, directly or indirectly, include the following:
Federal financial assistance under any subject to the penalties contained in 18
U.S.C. 1001 for submitting false information (i) Addition of equipment or days to
of the following programs: 49 U.S.C. to the government and may subject (insert an existing route;
5307, 49 U.S.C. 5309, 49 U.S.C. 5310, 49 name of applicant or recipient) and all (ii) Extending service hours for an
U.S.C. 5311, 49 U.S.C. 5316, 49 U.S.C. contractors or recipients through (name of existing route;
5317 or section 3038 of the applicant or recipient) to a withholding of (iii) Demand responsive service that is
Transportation Equity Act for the 21st Federal financial assistance as described in part of coordinated public transit
Century, as amended. 49 CFR part 604 subpart I.
human service transportation;
(d) The requirements of this Part shall (d) The affidavit described in (iv) New or modified service that is
not apply to a recipient transporting paragraph (c) of this section shall be open to the public, where the recipient
their employees, other transit system notarized and an original copy sent to: establishes and controls the route, and
employees, transit management Office of the Chief Counsel, TCC–20, the service continues from year to year;
officials, transit contractors and bidders, Room 9316, Washington, DC 20590. In or
government officials and their addition, the above affidavit shall be (v) The transportation of transit
contractors and official guests, for submitted electronically to http:// employees from one work location to
emergency preparedness planning and dms.dot.gov and placed in the Charter another work location.
operations. Service Exemption Docket number (d) The term ‘‘charter service hours’’
(e) The requirements of this Part shall xxxxx. means total hours operated by buses or
not apply to a recipient that uses (e) An affidavit described in this vans while in charter service including
Federal financial assistance from FTA, section shall be sent to FTA by the third (1) hours operated while carrying
for program purposes only, under 49 week of September each year. passengers for hire, plus (2) associated
U.S.C. 5310, 49 U.S.C. 5316, or 49 (f) A recipient may revoke an affidavit deadhead hours.
U.S.C. 5317. filed under this part by sending a notice (e) The term ‘‘Chief Counsel’’ means
(f) The requirements of this Part shall to the address and docket identified in the Office of the Chief Counsel within
not apply to a recipient in the event of paragraph (d) of this section indicating the Federal Transit Administration.
a national, regional, or local emergency they revoke the affidavit and agree to (f) The term ‘‘days’’ means calendar
lasting fewer than three business days. comply with charter service days. The last day of a time period is
If an emergency exists that the recipient requirements of this Part. included in the computation of time
unless the last day is a Saturday, Agreement’’ as set out in paragraph (b) (3) Evidence that the recipient has
Sunday, or legal holiday, in which case, of this section. sent the request for additional hours to
the time period runs until the end of the (b) A recipient shall enter into a registered charter providers in its
next day that is not a Saturday, Sunday, Charter Service Agreement if it receives geographic service area.
or legal holiday. Federal funds for equipment or facilities
(g) The term ‘‘FTA’’ means the under the Federal Transit Laws. The § 604.8 Qualified human service
organizations.
Federal Transit Administration. terms of the Charter Service Agreement
(h) The term ‘‘interested party’’ means are as follows: (a) Except for a recipient with 1,000
an individual, partnership, corporation, or more buses in peak hour service, a
The recipient agrees that it, and each of its recipient may provide charter service to
association, or other organization that subrecipients and third party contractors at
has a financial interest that is affected any tier, may provide charter service using a qualified human service organization
by the actions of a recipient providing equipment or facilities acquired with Federal serving persons:
charter service under the Federal assistance authorized under the Federal (1) With mobility limitations related
Transit Laws. This term includes states, Transit Laws only in compliance with the to advanced age;
counties, cities, and their subdivisions, regulations set out in 49 CFR part 604 et seq., (2) with disabilities; or
the terms and conditions of which are (3) struggling for self-sufficiency.
and tribal nations. incorporated herein by reference. (b) If an organization serving persons
(i) The term ‘‘registration list’’ means
(c) The Charter Service Agreement is described in paragraph (a) of this
the current list of registered charter
contained in the certifications and section receives funding, directly or
providers and qualified human service
assurances published annually by FTA indirectly, from the programs listed in
organizations maintained on FTA’s
for applicants for Federal financial Appendix A of this Part, the
charter registration website.
assistance. Once a recipient receives organization shall not be required to
(j) The term ‘‘geographic service area’’
Federal funds, the certifications and register on the FTA charter registration
means the entire area in which a
assurances become part of their Grant Web site.
recipient is authorized to provide public (c) If an organization serving persons
transportation service under appropriate Agreement or Cooperative Agreement
for Federal financial assistance. described in paragraph (a) of this
local, state, and Federal law. section does not receive funding from
(k) The term ‘‘pattern of violations’’
Subpart B—Exceptions any of the programs listed in Appendix
means more than one finding of non-
A of this Part, the organization shall
compliance with this Part by FTA § 604.6 Purpose. register on the FTA charter registration
beginning with the most recent finding The purpose of this subpart is to Web site in accordance with § 604.18.
of non-compliance and looking back identify the limited exceptions under (d) A recipient providing charter
over a period of 72 months. which recipients may provide service under this exception shall
(l) The term ‘‘public transportation’’ community-based charter services. record the qualified human service
has the meaning set forth in 49 U.S.C.
organization’s name, address, phone
5302(a)(10). § 604.7 Government officials.
number, e-mail address, date and time
(m) The term ‘‘qualified human (a) Except for a recipient with 1,000 of service, number of passengers, origin,
service organization’’ means an or more buses in peak hour service, a destination, trip length (miles and
organization that serves persons who recipient may provide charter service to hours), fee collected, if any, and vehicle
qualify for human service or government officials (Federal, State, and number.
transportation-related programs or local) for non-transit related purposes, if
services due to disability, income, or the recipient: § 604.9 Hardship.
advanced age. This term is used (1) Provides the service in its (a) A recipient in a non-urbanized
consistent with the President’s geographic service area; area may provide charter service to an
Executive Order on Human Service (2) Does not generate revenue from organization if the charter service
Transportation Coordination (February the charter service, except as required provided by a registered charter
24, 2004). by law; and provider would create a hardship on the
(n) The term ‘‘registered charter (3) Records the charter service in a organization because:
provider’’ means a private charter separate log that identifies the purpose (1) The registered charter provider
operator that wants to receive notice of of the trip, date, time, destination, imposes a minimum trip duration and
charter service requests directed to number of government officials on the the requested charter service is less than
recipients and has registered on FTA’s trip and vehicle number. the minimum trip duration; or
charter registration website. (b) A recipient that provides charter (2) The registered charter provider has
(o) The term ‘‘recipient’’ means an service under this section shall be deadhead time exceeding total trip time
agency or entity that receives Federal limited annually to 80 charter service from initial pick-up to final drop-off.
financial assistance, either directly or hours for providing trips to government (b) A recipient providing charter
indirectly, under the Federal Transit officials for non-transit related service under this section shall record
Laws. This term does not include third- purposes. the organization’s name, address, phone
party contractors. (c) A recipient may petition the number, e-mail address, date and time
(p) The term ‘‘special transportation’’ Administrator for additional charter of service, number of passengers,
means demand response or paratransit service hours only if the petition destination, trip length (miles and
service that is regular and continuous contains the following information: hours), fee collected, if any, and vehicle
and is a type of ‘‘public transportation.’’ (1) Description of the event and the
number.
number of charter service hours
§ 604.5 Charter service agreement. requested; § 604.10 Leasing FTA funded equipment
(a) A recipient seeking Federal (2) Explanation of why registered and drivers.
assistance under the Federal Transit charter providers in the geographic (a) A recipient may lease FTA-funded
Laws to acquire or operate any public service area cannot perform the service equipment and drivers for charter
transportation equipment or facilities (e.g., equipment, time constraints, or service only if the following conditions
shall enter into a ‘‘Charter Service other extenuating circumstances); and exist:
(1) The private charter operator is decision denying or granting in whole recipient shall submit a request with the
registered on the FTA charter or in part the request. In making this following information:
registration Web site; decision, the Administrator may seek (1) A description of the event and
(2) The registered charter provider such additional information as the why it is unique and time sensitive;
owns and operates a charter service Administrator deems necessary. (2) The type of charter service
business; (d) Any exception granted by the requested and the type of equipment;
(3) The registered charter provider Administrator under this procedure (3) The anticipated number of charter
received a request for charter service shall be effective only for the special service hours needed for the event;
that exceeds its available capacity either event identified in paragraph (b)(2) of
of the number of vehicles operated by (4) The anticipated number of
this section.
the registered charter provider or the vehicles and duration of the event; and
number of accessible vehicles operated § 604.12 When no registered charter (5) A description of how provision of
by the registered charter provider; and provider responds to notice from a the requested charter service is in the
recipient. public’s interest.
(4) The registered charter provider has
exhausted all of the available vehicles of (a) A recipient may provide charter (b) Upon receipt of a petition that
all registered charter providers in the service to a customer if no registered meets the requirements set forth in
recipient’s geographic service area. charter provider responds to the notice paragraph (a) of this section, the
(b) A recipient leasing vehicles and issued in § 604.17: Administrator shall review the materials
drivers to a registered charter provider (1) Within 72 hours for charter service and issue a written decision under his
under this provision shall record the requested to be provided in less than 30 or her own signature denying or
registered charter provider’s name, days; or granting in whole or in part the request.
address, telephone number, number of (2) Within 14 calendar days for In making this decision, the
vehicles leased, types of vehicles leased, charter service requested to be provided Administrator may seek such additional
vehicle identification numbers, and in 30 days or more. information as the Administrator deems
documentation presented by the (b) A recipient shall not provide necessary.
registered charter provider in support of charter service under this section if a (c) Any exception granted by the
paragraph (a)(1) through (3) of this registered charter provider indicates Administrator under this procedure
section. interest in providing the charter service shall be effective only for the unique
set out in the notice issued pursuant to event identified in paragraph (a) of this
§ 604.11 Events of regional or national § 604.17. section.
significance. (c) A recipient shall record the charter (d) A recipient shall send the request
(a) A recipient may petition the service in a separate log that identifies to the Administrator by facsimile or
Administrator for an exception to the the customer name, address, phone email.
charter service regulations in order to number, email address, date and time of
provide charter service directly to a (e) A recipient shall retain a copy of
trip, origin and destination, number of the Administrator’s approval for a
customer for a special event of regional passengers, trip length (miles and
or national significance. In order to period of at least three years and shall
hours), fee collected, if any, and vehicle include it in the recipient’s quarterly
petition the Administrator under this number.
exception, a recipient shall first consult report posted on the charter registration
with registered charter providers in the § 604.13 Agreement with registered Web site.
geographic service area to determine charter providers.
§ 604.15 Reporting requirements for all
whether or not registered charter (a) A recipient may provide charter exceptions.
providers are capable of providing the service directly to a customer after
(a) A recipient that provides charter
service. entering into an agreement with all
service in accordance with one or more
(b) After completing the consultation registered charter providers in the
of the exceptions contained in this
required in paragraph (a) of this section, recipient’s geographic service area.
subpart shall maintain the notice and
a recipient may petition for an (b) For purposes of entering into an
records required electronically and for a
exception under the following agreement with all registered charter
period of at least three years from the
conditions: providers as described in paragraph (a)
date of the charter service or lease.
(1) The recipient shall submit its of this section, a recipient shall
petition for an exception to the determine the registered charter (b) The records required under this
Administrator at least 90 days before the providers in its geographic service area subpart shall include a clear statement
first day of the special event; each year before January 30th. identifying which exception the
(2) The recipient’s petition shall (c) A recipient shall enter into an recipient relied upon when it provided
describe the event, explain how it is agreement with all registered charter the charter service.
special and of regional or national providers in its geographic service area (c) Starting the first quarter after the
significance, explain the amount of under this section before February 15th effective date of this rule, a recipient
charter service that registered charter of each year. providing charter service under these
providers are not capable of providing, exceptions shall post the records
explain how registered charter providers § 604.14 Administrator’s discretion. required under this subpart on the FTA
will be utilized for the event; and (a) A recipient may petition the charter registration Web site 30 days
(3) File the petition in the Special Administrator personally for an after the end of each calendar quarter
Events Docket number XXXX at http:// exception to the charter service (i.e., January 30th, April 30th, July 30th,
dms.dot.gov. regulations in order to provide charter and October 30th).
(c) Upon receipt of a petition that service directly to a customer for a (d) In unusual circumstances
meets the conditions set forth in unique and time sensitive event, usually described in the record for the service,
paragraphs (a), (b)(1), (b)(2), and (b)(3) of funerals of local, regional, or national a recipient may record generalized
this section, the Administrator shall significance. In order to petition the origin and destination information for
review the materials and issue a written Administrator under this exception, a safety or security reasons.
Subpart C—Procedures for provide notice to registered charter (1) Registers on the FTA Web site in
Registration and Notification providers in the recipient’s geographic accordance with paragraph (a) of this
service area in the following manner: section at least 60 days before the date
§ 604.16 Registration of private charter (1) Notice of the request shall be sent of the requested charter service;
operators. by the close of business on the day the (2) Verifies FTA’s receipt of its
(a) Private charter operators shall recipient receives the request unless the registration by viewing its information
provide the following information to be recipient received the request after 2 on the FTA charter registration Web
considered a registered charter provider: p.m., in which case the recipient shall site; and
(1) Company name, address, phone send the notice by the close of business (3) Certifies that the funding received
number, email address, and facsimile the next business day; from a state or local program includes
number; (2) Notice sent to the list of registered funding for transportation.
(2) Federal or State motor carrier charter providers shall include: (c) A registered charter provider may
identifying number; (i) Customer name, address, phone challenge a qualified human service
(3) The geographic service areas of number, and email address (if organization’s status to receive charter
public transit agencies that the private available); services from a recipient by requesting
charter operator is able to provide (ii) Requested date of service; removal of the qualified human service
charter service in; (iii) Approximate number of organization from FTA’s charter
(4) A certification that the private passengers; registration Web site by filing a
charter operator has valid insurance; (iv) Whether the type of equipment complaint consistent with subpart F.
and requested is (are) bus(es) or van(s); and (d) A qualified human service
(5) A private charter operator may (v) Trip itinerary and approximate organization shall provide current and
also indicate whether they are willing to duration. accurate information on FTA’s charter
provide free or reduced rate charter (c) A recipient shall retain an registration, and shall update that
services to registered qualified human electronic copy of the notice and the list information no less frequently than
service organizations. of registered charter providers that were every two years.
(b) A private charter operator that sent notice of the requested charter
service for a period of at least three § 604.19 Duties for recipients with respect
provides valid information in this to charter registration Web site.
subpart is a ‘‘registered charter years from the date the notice was sent.
A recipient that provides charter
provider’’ for purposes of this Part and Subpart D—Registration of Qualified service allowed under this Part shall
shall have standing to file a complaint Human Service Organizations and train its affected employees and
consistent with subpart F. Duties for Recipients Regarding contractors on how to use the FTA
(c) A recipient, a registered charter Charter Registration Web site charter registration Web site.
provider, or their duly authorized
representative, may challenge a § 604.18 Registration of qualified human Subpart E—Advisory Opinions
registered charter provider’s registration service organizations.
and request removal of the private (a) Qualified human service § 604.20 Purpose.
charter operator from FTA’s charter organizations that do not receive funds The purpose of this subpart is to set
registration Web site by filing a from Federal programs listed in out the requirements for requesting an
complaint consistent with subpart F. Appendix A but serve individuals advisory opinion from FTA regarding
(d) FTA shall refuse to post a private described in § 604.8, shall register on specific, factual events. Advisory
charter operator’s information if the FTA’s charter registration Web site by opinions are intended to give formal
private charter operator fails to provide submitting the following information: advice to a recipient, registered charter
all of the required information as (1) Name of organization, address, providers, or their duly authorized
indicated on the FTA charter phone number, email address, and representative, regarding the
registration Web site. facsimile number; requirements of this Part. This subpart
(e) Registered charter providers shall (2) The geographic service area of the also describes the conditions under
provide current and accurate recipient in which the qualified human which an advisory opinion may be used
information on FTA’s charter service organization resides; in subsequent proceedings.
registration Web site, and shall update (3) Basic financial information
§ 604.21 Request for an advisory opinion.
that information no less frequently than regarding the qualified human service
organization and whether the qualified (a) A recipient, a registered charter
every two years.
human service organization is exempt provider, or their duly authorized
§ 604.17 Notification to registered charter from taxation under sections 501(c)(1), representative, may request an advisory
providers. (3), (4), or (19) of the Internal Revenue opinion from the Chief Counsel on a
(a) Upon receiving a request for Code, or is a unit of Federal, State or matter regarding specific, factual events
charter service, a recipient may: local government; only.
(1) Decline to provide the service and (4) Whether the qualified human (b) A request for an advisory opinion
refer the requestor to FTA’s charter service organization receives funds shall be submitted in the following
registration Web site; directly or indirectly from a State or form:
(2) Provide the service pursuant to an local program, and if so, which [Date]
exception set out in subpart B of this program(s); and Chief Counsel, Federal Transit
Part; or (5) A narrative statement describing Administration, 400 Seventh Street,
(3) Provide notice to registered charter how the requested service is consistent SW., Room 9316,
providers as set out in this section and with the mission of the qualified human Washington, DC 20590
provide the service pursuant to the service organization. Re: Request for Advisory Opinion
exception contained in § 604.12. (b) A qualified human service The undersigned submits this request
(b) Upon receipt of a request for organization is eligible to receive charter for an advisory opinion of the FTA
charter service, a recipient interested in services from a recipient if the qualified Chief Counsel with respect to [the
providing the charter service shall human service organization: general nature of the matter involved].
A. Issues involved. (b) An advisory opinion may be used (1) States the name and address of
[A concise statement of the issues and in administrative or court proceedings each entity who is the subject of the
questions on which an opinion is to illustrate acceptable and complaint;
requested.] unacceptable procedures or standards, (2) Provides a concise but complete
B. Statement of facts and law. but not as a legal requirement and is statement of the facts relied upon to
[A full statement of all facts and legal limited to the factual circumstances substantiate the reason why the private
points relevant to the request.] described in the request for an advisory charter operator or qualified human
opinion. The Chief Counsel’s advisory service organization should not be listed
The undersigned certifies that, to the
best of his/her knowledge and belief, opinion shall not be binding upon a on the FTA charter registration website;
this request includes all data, Presiding Official conducting a (3) Files the complaint electronically
information, and views relevant to the proceeding under subpart I of this Part. by submitting it to the Charter Service
matter, whether favorable or (c) A statement made or advice Complaint Docket number xxxx; and
unfavorable to the position of the provided by an FTA employee (4) Serves the complaint by email (or
undersigned, which is the subject of constitutes an advisory opinion only if facsimile number if no email address is
the request. it is issued in writing under this section. available) and attaches documents
A statement or advice given by an FTA offered in support of the complaint
[Signature]
employee orally, or given in writing, but upon all entities named in the
[Printed name] complaint.
not under this section, is an informal
[Title of person making request] (b) The private charter operator or
communication that represents the best
[Mailing address] judgment of that employee at the time qualified human service organization
[Telephone number] but does not constitute an advisory shall have 7 days to answer the
[email address] opinion, does not necessarily represent complaint and shall file such answer
(c) A request for an advisory opinion the formal position of FTA, and does and all supporting documentation in the
may be denied if: not bind or otherwise obligate or Charter Service Complaint Docket
(1) The request contains incomplete commit the agency to the views number xxxxx.
information on which to base an expressed. (c) A recipient, qualified human
informed advisory opinion; service organization, or a registered
(2) The Chief Counsel concludes that § 604.24 Special considerations. charter provider, or their duly
an advisory opinion cannot reasonably Based on new facts involving authorized representative, shall not file
be given on the matter involved; significant financial considerations, the a reply to the answer.
(3) The matter is adequately covered Chief Counsel may take appropriate (d) FTA shall determine whether to
by a prior advisory opinion or a enforcement action contrary to an remove the private charter operator or
regulation; advisory opinion before amending or qualified human service organization
(4) The Chief Counsel otherwise from the FTA charter registration
revoking the opinion. This action shall
concludes that an advisory opinion website based on probative evidence of
be taken only with the approval of the
would not be in the public interest. one or more of the following:
Administrator, who may not delegate
§ 604.22 Processing of advisory opinions. this function. (1) Bad faith;
(2) Fraud;
(a) A request for an advisory opinion
Subpart F—Complaints (3) Lapse of insurance;
shall be sent to the address indicated in
(4) Lapse of other documentation; or
§ 604.21(b) of this subpart; filed § 604.25 Purpose. (5) The filing of more than one
electronically at http://dms.dot.gov or
This subpart describes the complaint, which on its face, does not
sent to the dockets office located at 400
requirements necessary for filing a state a claim that warrants an
Seventh Street SW., PL–401,
complaint with FTA regarding the investigation or further action by FTA.
Washington, DC 20590, in the Charter
provision of charter service by (e) A determination whether or not to
Service Advisory Opinion Docket
recipients or filing a complaint remove a private charter operator or
number xxxx; and sent to the recipient,
challenging the listing of a private qualified human service organization
if appropriate.
(b) The Chief Counsel shall make charter operator or qualified human from the registration list shall be sent to
every effort to respond to a request for service organization on the FTA charter the parties within 30 days of the date of
an advisory opinion within ten days of registration Web site. Note: FTA expects the response required in paragraph (b)
receipt of a request that complies with all parties to attempt to resolve matters of this section. FTA’s decision, after
§ 604.21(b). The Chief Counsel will send informally before beginning the official consultation with the Chief Counsel,
the response to the requestor, the complaint process, which can be time- shall state:
docket, and the recipient, if appropriate. consuming and expensive to all parties (1) Reasons for allowing the
(c) The Chief Counsel may respond to involved. continued listing or removing the
any request to FTA for regulatory private charter operator or human
§ 604.26 Complaints and decisions service organization from the
guidance as a request for an advisory regarding removal of private charter
opinion, in which case the request will registration list;
operators or qualified human service
be filed in the Charter Service Advisory (2) if removal is ordered, the length of
organizations from registration list.
Opinion Docket, and a copy sent to the time (not to exceed three years) the
recipient, if appropriate. (a) A recipient, a registered charter private charter operator or qualified
provider, or their duly authorized human service organization shall be

§ 604.23 Effect of an advisory opinion. representative, may challenge the listing barred from the registration list; and
(a) An advisory opinion represents the of a registered charter provider or (3) the date by which the private
formal position of FTA on a matter, and qualified human service organization on charter operator or qualified human
except as provided in § 604.24 of this FTA’s charter registration Web site by service organization may re-apply for
subpart, obligates the agency to follow filing a complaint that meets the registration on the FTA charter
it until it is amended or revoked. following: registration website.
(f) FTA’s determination in this section (h) The answer, reply, and rebuttal (3) On the date shown on the
shall not be subject to review under shall each contain a concise but postmark if there is no certificate of
subparts J or K of this Part. complete statement of the facts relied service; or
upon to substantiate the answers, (4) On the mailing date shown by
§ 604.27 Complaints, answers, replies, and admissions, denials, or averments made. other evidence if there is no certificate
other documents.
(i) The respondent’s answer may of service and no postmark.
(a) A registered charter provider, or include a motion to dismiss the (c) E-mail. A party may also send the
their duly authorized representative complaint, or any portion thereof, with document by facsimile or email, but
(‘‘complainant’’), affected by an alleged a supporting memorandum of points delivery by either facsimile or email
noncompliance of this Part may file a and authorities. shall not constitute service as described
complaint with the Office of the Chief in § 604.31.
(j) The complainant may withdraw a
Counsel. (d) Number of copies. Unless
complaint at any time after filing by
(b) Except as provided otherwise in otherwise specified, an executed
serving a ‘‘Notification of Withdrawal’’
§ 604.26, complaints filed under this original shall be filed with FTA.
on the Chief Counsel and the
subpart shall— (e) Form. Documents filed with FTA
(1) Title the document ‘‘Notice of respondent.
shall be typewritten or legibly printed.
Charter Service Complaint;’’ § 604.28 Dismissals. In the case of docketed proceedings, the
(2) State the name and address of each document shall include a title and the
(a) Within 20 days after the receipt of
recipient who is the subject of the docket number of the proceeding on the
a complaint described in § 604.27, the
complaint and, with respect to each front page.
Office of the Chief Counsel shall
recipient, the specific provisions of the (f) Signing of documents and other
provide reasons for dismissing a
Federal Transit Laws that the papers. The original of every document
complaint, or any claim in the
complainant believes were violated; filed shall be signed by the person filing
complaint, with prejudice under this
(3) Serve the complaint in accordance it or the person’s duly authorized
section if:
with § 604.31, along with all documents representative. Subject to the
then available in the exercise of (1) It appears on its face to be outside
the jurisdiction of FTA under the enforcement provisions contained in
reasonable diligence, offered in support this subpart, the signature shall serve as
of the complaint, upon all recipients Federal Transit Laws;
(2) On its face it does not state a claim a certification that the signer has read
named in the complaint as being the document and, based on reasonable
responsible for the alleged action(s) or that warrants an investigation or further
action by FTA; or inquiry, to the best of the signer’s
omission(s) upon which the complaint knowledge, information, and belief, the
is based; (3) The complainant lacks standing to
document is—
(4) Provide a concise but complete file a complaint under subparts B, C, or
(1) Consistent with this part;
statement of the facts relied upon to D of this Part.
(2) Warranted by existing law or that
substantiate each allegation; § 604.29 Incomplete complaints. a good faith argument exists for
(5) Describe how the complainant was extension, modification, or reversal of
directly and substantially affected by If a complaint is not dismissed
pursuant to § 604.28, but is deficient as existing law; and
the things done or omitted by the (3) Not interposed for any improper
recipients; and to one or more of the requirements set
forth in § 604.27, the Office of the Chief purpose, such as to harass or to cause
(6) Identify each registered charter unnecessary delay or needless increase
provider associated with the complaint. Counsel will dismiss the complaint
within 20 days after receiving it. in the cost of the administrative process.
(c) Unless the complaint is dismissed
pursuant to § 604.28 or § 604.29, FTA Dismissal shall be without prejudice § 604.31 Service.
shall notify the complainant, and the complainant may re-file after (a) Designation of person to receive
respondent, and state recipient, if amendment to correct the deficiency. service. The initial document filed by
applicable, within 30 days after the date The Chief Counsel’s dismissal shall the complainant shall state on the first
FTA receives the complaint that the include the reasons for the dismissal page of the document for all parties to
complaint has been docketed. without prejudice. be served:
Respondents shall have 30 days from § 604.30 Filing. (1) The title of the document;
the date of service of the FTA (2) The name, post office address,
notification to file an answer. (a) Filing address. Unless provided telephone number; and
(d) The complainant shall file a reply otherwise, the complainant shall file the (3) The facsimile number, if any, and
within 20 days of the date of service of complaint with the Office of the Chief email address(es), if any.
the respondent’s answer. Counsel, 400 Seventh Street, SW., Room If any of the above items change
(e) The respondent may file a rebuttal 9316, Washington, DC 20590 and file it during the proceeding, the person shall
within 10 days of the date of service of electronically at http://dms.dot.gov or promptly file notice of the change with
the reply. mail it to the docket at 400 Seventh FTA and the Presiding Official, if
(f) The answer, reply, and rebuttal Street, SW., PL-401, Washington, DC appropriate, and shall serve the notice
shall, like the complaint, be 20590. Filings sent to the docket shall on all other parties to the proceeding.
accompanied by supporting include the Charter Service Complaint (b) Docket numbers. Each submission
documentation upon which the parties docket number xxxx. identified as a complaint under this Part
rely. (b) Date and method of filing. Filing by the submitting party shall be filed in
(g) The answer shall deny or admit of any document shall be by personal the Charter Service Complaint docket
the allegations made in the complaint or delivery or U.S. mail. Unless the date is number xxxx.
state that the entity filing the document shown to be inaccurate, documents to (h) Who must be served. Copies of all
is without sufficient knowledge or be filed with FTA shall be deemed filed: documents filed with FTA shall be
information to admit or deny an (1) On the date of personal delivery; served by the entity filing them on all
allegation, and shall assert any (2) On the mailing date shown on the parties to the proceeding. A certificate
affirmative defense. certificate of service; of service shall accompany all
documents when they are tendered for sends a notice to the entities subject to Subpart I—Hearings
filing and shall certify concurrent investigation. The notice will set forth
service on FTA and all parties. the areas of FTA’s concern and the § 604.36 Powers of a PO.
Certificates of service shall be in reasons; request a response to the notice A PO may:
substantially the following form: within 30 days of the date of service; (a) Give notice of, and hold, pre-
I hereby certify that I have this day served and inform the respondent that FTA hearing conferences and hearings;
the foregoing [name of document] on the will, in its discretion, invite good faith (b) Administer oaths and affirmations;
following persons at the following addresses efforts to resolve the matter. (c) Issue administrative subpoenas
and email or facsimile numbers (if also (c) If the matters addressed in the FTA and issue notices of deposition
served by email or facsimile) by [specify notice are not resolved informally, the requested by the parties;
method of service]: Chief Counsel may refer the matter to a (d) Limit the frequency and extent of
[list persons, addresses, and email or Presiding Official. discovery;
facsimile numbers]
Dated this l day of l, 20l. (e) Rule on offers of proof;
Subpart H—Initial Decisions by FTA
[signature], for [party] (f) Receive relevant and material
and Referrals to a Presiding Official
evidence;
(i) Method of service. Except as (PO)
(g) Regulate the course of the hearing
otherwise provided in § 604.26, or
agreed by the parties and the Presiding § 604.34 Initial decisions and referrals to a in accordance with the rules of this part
Official, as appropriate, the method of PO. to avoid unnecessary and duplicative
service is personal delivery or U.S. mail. (a) After receiving a complaint proceedings in the interest of prompt
(j) Presumption of service. There shall consistent with § 604.27, and and fair resolution of the matters at
be a presumption of lawful service— conducting an investigation, the Chief issue;
(1) When acknowledgment of receipt Counsel may: (h) Hold conferences to settle or to
is by a person who customarily or in the (1) Issue an initial decision, signed by simplify the issues by consent of the
ordinary course of business receives a headquarters office, based on the parties;
mail at the address of the party or of the pleadings filed to date; (i) Dispose of procedural motions and
person designated under this section; or (2) Refer the matter to a PO; or requests;
(2) When a properly addressed (3) Dismiss the complaint pursuant to (j) Examine witnesses; and
envelope, sent to the most current § 604.28. (k) Make findings of fact and
address submitted under this section (b) If the Chief Counsel refers the conclusions of law, and issue an initial
has been returned as undeliverable, matter to a PO, the Chief Counsel shall decision.
unclaimed, or refused. send out a hearing order that sets forth
the following: § 604.37 Appearances, parties, and rights
Subpart G—Investigations (1) The allegations in the complaint, of parties.
or notice of investigation, and the (a) Any party to the hearing may
§ 604.32 Investigation of complaint. chronology and results of the appear and be heard in person and any
(a) If, based on the pleadings, there investigation preliminary to the hearing; party to the hearing may be
appears to be a reasonable basis for (2) The relevant statutory, judicial, accompanied, represented, or advised
investigation, FTA shall investigate the regulatory, and other authorities; by an attorney licensed by a State, the
subject matter of the complaint. (3) The issues to be decided; District of Columbia, or a territory of the
(b) The investigation may include a (4) Such rules of procedure as may be United States to practice law or appear
review of written submissions or necessary to supplement the provisions before the courts of that State or
pleadings of the parties, as of this Part; territory, or by another duly authorized
supplemented by any informal (5) The name and address of the PO,
representative. An attorney, or other
investigation FTA considers necessary and the assignment of authority to the
duly authorized representative, who
and by additional information furnished PO to conduct the hearing in accordance
represents a party shall file a notice of
by the parties at FTA request. Each with the procedures set forth in this
appearance in accordance with § 604.30
party shall file documents that it Part; and
(6) The date by which the PO is and § 604.31.
considers sufficient to present all
directed to issue an initial decision. (b) The parties to the hearing are the
relevant facts and argument necessary
respondent(s) named in the hearing
for FTA to determine whether the
§ 604.35 Separation of functions. order, the complainant(s), and FTA, as
recipient is in compliance.
(c) The Chief Counsel shall send a (a) Proceedings under this Part shall represented by the PO.
notice to complainant(s) and be handled by an FTA attorney. (c) The parties to the hearing may
respondent(s) once an investigation is (b) After issuance of an initial agree to extend for a reasonable period
complete, but not later than 90 days decision by a headquarters office, the of time the time for filing a document
after receipt of the last pleading FTA employee or contractor engaged in under this Part. If the parties agree, the
specified in § 604.27 was due to FTA. the performance of investigative or PO shall grant one extension of time to
prosecutorial functions in a proceeding each party. The party seeking the
§ 604.33 Agency initiation of investigation. under this Part will not, in that case or extension of time shall submit a draft
(a) Notwithstanding any other a factually related case, participate or order to the PO to be signed by the PO
provision of law, FTA may initiate its give advice in a final decision by the and filed with the hearing docket. The
own investigation of any matter within Administrator or designee on written PO may grant additional oral requests
the applicability of this Part without appeal, and will not, except as counsel for an extension of time where the
having received a complaint. The or as witness in the public proceedings, parties agree to the extension.
investigation may include, without engage in any substantive (d) An extension of time granted by
limitation, any of the actions described communication regarding that case or a the PO for any reason extends the due
in § 604.32. related case with the Administrator on date for the PO’s initial decision and for
(b) Following the initiation of an written appeal, or FTA employees the final agency decision by the length
investigation under this section, FTA advising those officials in that capacity. of time in the PO’s decision.
§ 604.38 Discovery. written transcript shall be subscribed by after payment of reasonable costs for
(a) Permissible forms of discovery the witness, unless the parties by search and reproduction of the record.
shall be within the discretion of the PO. stipulation waive the signing, or the
§ 604.45 Waiver of procedures.
(b) The PO shall limit the frequency witness is ill, cannot be found, or
and extent of discovery permitted by refuses to sign. The reporter shall note (a) The PO shall waive such
this section if a party shows that— the reason for failure to sign. procedural steps as all parties to the
(1) The information requested is hearing agree to waive before issuance
cumulative or repetitious; § 604.40 Public disclosure of evidence. of an initial decision.
(2) The information requested may be (a) Except as provided in this section, (b) Consent to a waiver of any
obtained from another less burdensome the hearing shall be open to the public. procedural step bars the raising of this
and more convenient source; (b) The PO may order that any issue on appeal.
(3) The party requesting the information contained in the record be (c) The parties may not by consent
information has had ample opportunity withheld from public disclosure. Any waive the obligation of the PO to enter
to obtain the information through other person may object to disclosure of an initial decision on the record.
discovery methods permitted under this information in the record by filing a
written motion to withhold specific § 604.46 Recommended decision by a PO.
section; or
(4) The method or scope of discovery information with the PO. The person (a) The PO shall issue a recommended
requested by the party is unduly shall state specific grounds for decision based on the record developed
burdensome or expensive. nondisclosure in the motion. during the proceeding and shall send
(c) The PO shall grant the motion to the recommended decision to a
§ 604.39 Depositions. withhold information from public headquarters office for ratification or
(a) For good cause shown, the PO may disclosure if the PO determines that modification not later than 110 days
order that the testimony of a witness disclosure would be in violation of the after the referral from the Chief Counsel.
may be taken by deposition and that the Privacy Act, would reveal trade secrets (b) The headquarters office shall ratify
witness produce documentary evidence or privileged or confidential commercial or modify the PO’s recommended
in connection with such testimony. or financial information, or is otherwise decision within 30 days of receiving the
Generally, an order to take the prohibited by law. recommended decision. The
deposition of a witness is entered only headquarters office shall serve its initial
§ 604.41 Standard of proof. decision, which is capable of being
if:
(1) The person whose deposition is to The PO shall issue an initial decision appealed to the Administrator, on all
be taken would be unavailable at the or shall rule in a party’s favor only if the parties to the proceeding.
hearing; decision or ruling is supported by, and
in accordance with, reliable, probative, § 604.47 Remedies.
(2) The deposition is deemed
necessary to perpetuate the testimony of and substantial evidence contained in (a) If the headquarters office
the witness; or the record and is in accordance with determines that a violation of this Part
(3) The taking of the deposition is law. occurred, the headquarters office shall
necessary to prevent undue and take any of the following actions:
§ 604.42 Burden of proof.
excessive expense to a party and will (1) Bar the recipient from receiving
(a) The burden of proof of future Federal financial assistance from
not result in undue burden to other
noncompliance with this Part, FTA;
parties or in undue delay.
(b) Any party to the hearing desiring determination, or agreement issued (2) Order the refund of revenue
to take the deposition of a witness under the authority of the Federal collected in violation of this Part to the
according to the terms set out in this Transit Laws is on registered charter U.S. Treasury; or
subpart, shall file a motion with the PO, provider. (3) Order the withholding of a
(b) Except as otherwise provided by reasonable percentage of available
with a copy of the motion served on
statute or rule, the proponent of a Federal financial assistance.
each party. The motion shall include:
motion, request, or order has the burden (b) In determining the type and
(1) The name and residence of the
of proof. amount of remedy, the headquarters
witness; (c) A party who has asserted an
(2) The time and place for the taking office shall consider the following
affirmative defense has the burden of factors:
of the proposed deposition;
proving the affirmative defense. (1) The nature and circumstances of
(3) The reasons why such deposition
should be taken; and § 604.43 Offer of proof. the violation;
(4) A general description of the A party whose evidence has been (2) The extent and gravity of the
matters concerning which the witness excluded by a ruling of the PO may offer violation;
will be asked to testify. the evidence on the record when filing (3) The revenue earned by providing
(c) If good cause is shown in the an appeal. the charter service;
motion, the PO in his or her discretion, (4) The operating budget of the
issues an order authorizing the § 604.44 Record. recipient; and
deposition and specifying the name of (a) The transcript of all testimony in (5) Such other matters as justice may
the witness to be deposed, the location the hearing, all exhibits received into require.
and time of the deposition and the evidence, all motions, applications, (c) The headquarters office shall
general scope and subject matter of the requests and rulings, and all documents mitigate the remedy when the recipient
testimony to be taken. included in the hearing record shall can document corrective action of
(d) Witnesses whose testimony is constitute the exclusive record for alleged violation. The headquarters
taken by deposition shall be sworn or decision in the proceedings and the office’s decision to mitigate a remedy
shall affirm before any questions are put basis for the issuance of any orders. shall be determined on the basis of how
to them. Each question propounded (b) Any interested person may much corrective action was taken by the
shall be recorded and the answers of the examine the record by entering the recipient and when it was taken.
witness transcribed verbatim. The docket number at http://dms.dot.gov or Systemic action to prevent future
violations will be given greater corrective action, if appropriate, and days of the due date of the briefs on
consideration than action simply to identifies remedies. review. If the Administrator finds that
remedy violations identified during (c) If no appeal is filed, and the the respondent is not in compliance
FTA’s inspection or identified in a Administrator does not take review of with the Federal Transit Laws,
complaint. the initial decision by the headquarters regulations or agreement, the final
(d) In the event the headquarters office on the Administrator’s own agency order includes a statement of
office finds a pattern of violations, the motion, the headquarters office’s initial corrective action, if appropriate, and
remedy ordered shall bar a recipient decision shall take effect as the final identifies remedies.
from receiving Federal transit assistance agency decision and order on the
in an amount that the headquarters twenty-first day after the actual date the Subpart K—Judicial Review
office considers appropriate. headquarters office’s initial decision is § 604.50 Judicial review of a final decision
(e) The headquarters office may issued. and order.
propose to withhold Federal financial (d) The failure to file an appeal is
assistance in a lump sum or over a deemed a waiver of any rights to seek (a) A person may seek judicial review,
period of time not to exceed five years. judicial review of a headquarters office in an appropriate United States District
initial decision that becomes a final Court, of a final decision and order of
Subpart J—Appeal to Administrator agency decision by operation of the Administrator as provided in 5
and Final Agency Orders paragraph (c) of this section. U.S.C. 701–706. A party seeking judicial
review of a final decision and order
§ 604.48 Appeal from a headquarters office § 604.49 Administrator’s discretionary shall file a petition for review with the
initial decision. review of a headquarters office’s initial Court not later than 60 days after a final
(a) Each party adversely affected by decision. decision and order is effective.
the headquarters office’s initial decision (a) If the Administrator takes review (b) The following do not constitute
may file an appeal with the on the Administrator’s own motion, the final decisions and orders subject to
Administrator within 21 days of the Administrator shall issue a notice of judicial review:
date of the headquarters office issued review by the twenty-first day after the (1) An FTA decision to dismiss a
their initial decision. Each party may actual date the headquarters office’s complaint as set forth in §§ 604.28 and
file a reply to an appeal within 21 days initial decision that contains the 604.29;
after it is served on the party. Filing and following information: (2) FTA’s determination to remove or
service of appeals and replies shall be (1) The notice sets forth the specific allow a listing on FTA’s charter
by personal delivery consistent with findings of fact and conclusions of law registration website in accordance with
§§ 604.30 and 604.31. in the initial decision subject to review § 604.26;
(b) If an appeal is filed, the by the Administrator. (3) A recommended decision issued
Administrator reviews the entire record (2) Parties may file one brief on by a PO at the conclusion of a hearing;
and issues a final agency decision and review to the Administrator or rely on (4) A headquarters office decision that
order based on the record within 30 their post-hearing briefs to the becomes the final decision of the
days of the due date of the reply. If no headquarters office. Briefs on review Administrator because it was not
appeal is filed, the Administrator may shall be filed not later than 10 days after appealed within the stated timeframes.
take review of the case on his or her service of the notice of review. Filing
own motion. If the Administrator finds Issued this 12th day of February, 2007.
and service of briefs on review shall be
that the respondent is not in compliance by personal delivery consistent with James S. Simpson,
with the Federal Transit Laws or any § 604.30 and § 604.31. Administrator.
regulation, or agreement the final (3) The Administrator issues a final [FR Doc. E7–2715 Filed 2–14–07; 8:45 am]
agency order includes a statement of agency decision and order within 30 BILLING CODE 4910–57–P

Proposed Rule: Charter Service: Federal Financial Assistance Recipients Negotiated Rulemaking Recommendations For Improving Unauthorized Competition

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Thursday,

February 15, 2007

49 CFR Part 604

of ‘‘special transportation’’ in statute or regulation should contain an exemption

Old section New section

information collection request. 604.7 Government officials. Final Agency Orders

provider, or their duly authorized human service organization shall be

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