[Federal Register Volume 73, Number 97 (Monday, May 19, 2008)]
[Proposed Rules]
[Pages 28790-28793]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-11151]
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DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
49 CFR Part 605
[Docket No. FTA-2008-0015]
Notice of Proposed Policy Statement on FTA's School Bus
Operations Regulations
AGENCY: Federal Transit Administration (FTA), DOT.
ACTION: Proposed policy statement; request for comments.
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SUMMARY: Through this notice, the Federal Transit Administration (FTA)
proposes to revise its policy with respect to ``tripper service'' and
``school bus operations'' under 49 CFR Part 605. FTA seeks comment on
this notice from interested parties. After consideration of the
comments, FTA will issue a second Federal Register notice responding to
comments received and noting any changes made to the policy statement
as a result of comments received.
DATES: FTA must receive all comments by June 18, 2008. FTA will
consider late filed comments to the extent practicable.
ADDRESSES: To ensure your comments are not entered more than once into
the Docket, please identify your submissions with the following Docket
No. FTA-2008-0015. Please make your submissions by only one of the
following means:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the online instructions for submitting comments.
Fax: 1-202-493-2251.
U.S. Post or Express Mail: U.S. Department of
Transportation, Docket Operations, West Building Ground Floor, Room
W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590.
Hand Delivery: The West Building of the U.S. Department of
Transportation, 1200 New Jersey Avenue, SE., Washington, DC 20590,
between 9 a.m. and 5 p.m., Monday through Friday, except Federal
holidays.
Instructions: You must include the agency name (Federal Transit
Administration) and the Docket number (FTA-2008-0015) at the beginning
of your comment. You should include two copies of your comment if you
submit it by mail. If you wish to receive confirmation that FTA
received your comment, you must include a self-addressed stamped
postcard. Note that FTA will post all comments that it receives,
including any personal information provided therein, without change to
http://www.regulations.gov.
Due to security procedures in effect since October 2001 regarding
mail deliveries, mail received through the U.S. Postal Service may be
subject to delays. A party that submits a comment responsive to this
notice should consider using an express mail firm to ensure the prompt
filing of any submissions not filed electronically or by hand.
FOR FURTHER INFORMATION CONTACT: Linda Lasley, Assistant Chief Counsel,
Legislation and Regulations Division, Office of Chief Counsel, Federal
Transit Administration, U.S. Department of Transportation, 1200 New
Jersey Avenue, SE., 5th Floor--East Building, Washington, DC 20590. E-
mail: [email protected]. Telephone: (202) 366-1674.
SUPPLEMENTARY INFORMATION:
Background
Introduction
FTA issues this Notice of Policy Statement and Request for Comments
to provide guidance in the context of the recent decision of the United
States District Court for the Western District of New York in
Rochester-Genesee Regional Transportation Authority v. Hynes-Cherin.\1\
The Court's decision in Rochester-Genesee Regional Transportation
Authority set aside FTA's interpretation of its school bus operations
regulations under 49 CFR Part 605.\2\ In the proposed policy set forth
below, FTA clarifies its guidance regarding FTA's interpretation of its
school bus operations regulations. FTA intends to construe the term
``tripper service'' to include only existing routes with modified fare
collection or subsidy systems, frequency of service, and de minimis
route deviations from existing route paths in the immediate vicinity of
schools to stops located at or in close proximity to the schools.
Consistent with that construction, FTA would interpret the definition
of ``school bus operations'' in 49 CFR 605.3(b) to include service that
a reasonable person would conclude primarily was designed
[[Page 28791]]
to accommodate students and school personnel and only incidentally to
serve the nonstudent general public.
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\1\ No. 07-CV-6378L 1 (W.D.N.Y. Jan. 24, 2008).
\2\ Id. at 20.
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FTA expects to issue expeditiously a notice of proposed rulemaking
to provide clearer definitions of ``tripper service'' and ``school bus
operations,'' as well as generally to update the existing school bus
regulation.
Statutory and Regulatory Framework
In 1973, Congress passed the Federal-Aid Highway Act, which
requires FTA to provide financial assistance to a grantee under 49
U.S.C. Chapter 53 only if the grantee agrees ``not to provide schoolbus
transportation that exclusively transports students and school
personnel in competition with a private schoolbus operator.'' \3\
Congress's intent in enacting this provision was to prevent unfair
competition between federally funded public transportation systems and
private school bus operators.\4\
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\3\ Federal Aid Highway Act of 1973, Pub. L. 93-87, section
164(b), 87 Stat. 250, 281-82 (1973) (codified as amended at 49
U.S.C. 5323(f) (2006)).
\4\ Chicago Transit Auth. v. Adams, 607 F.2d 1284, 1292-93 (7th
Cir. 1979) (citing H.R. Rep. No. 93-410, at 87 (1973) (Conf. Rep.);
S. Rep. No. 93-355, at 87 (1973) (Conf. Rep.)).
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In 1976, the Urban Mass Transportation Administration, now FTA,
codified regulations under 49 CFR Part 605 which implemented the above
statutory provision.\5\ Under 49 CFR 605.14, FTA may not provide
financial assistance to a grantee ``unless the applicant and the
Administrator shall have first entered into a written agreement that
the applicant will not engage in school bus operations exclusively for
the transportation of students and school personnel in competition with
private school bus operators.'' \6\ The regulation defines ``school bus
operations'' as ``transportation by bus exclusively for school
students, personnel and equipment * * *.'' \7\
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\5\ See Codification of Charter Bus Operations Regulations, 41
FR 14,122 (Apr. 1, 1976).
\6\ 49 CFR 605.14 (2007).
\7\ 49 CFR 605.3(b).
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The regulation exempts ``tripper service'' from the prohibition
against school bus operations.\8\ ``Tripper service'' is ``regularly
scheduled mass transportation service which is open to the public, and
which is designed or modified to accommodate the needs of school
students and personnel, using various fare collections or subsidy
systems.'' \9\
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\8\ 49 CFR 605.13.
\9\ 49 CFR 605.3(b).
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Rochester-Genesee Regional Transportation Authority v. Hynes-Cherin
On January 24, 2008, the United States District Court for the
Western District of New York issued a decision in Rochester-Genesee
Regional Transportation Authority which set aside FTA's interpretation
of its school bus operations regulations under 49 CFR part 605.\10\ The
Court allowed the Rochester-Genesee Regional Transportation Authority
(RGRTA) to restructure its public transportation operation through the
addition of 240 new express school bus routes proposed to serve the
Rochester City School District (RCSD) and its students.\11\
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\10\ See Rochester-Genesee Reg'l Transp. Auth., No. 07-CV-6378L
1.
\11\ Id. at 20-36.
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In its decision, the Court narrowly interpreted the word
``exclusively'' in FTA's definition of ``school bus operations'' and
concluded that, because a member of the general public could,
hypothetically, board a bus along one of RGRTA's proposed new 240
express routes, RGRTA's service would not ``exclusively'' transport
students. The Court therefore concluded that RGRTA's proposed express
bus service did not constitute impermissible school bus operations.\12\
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\12\ Id. at 20-24.
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FTA believes that, following the Court's broad interpretation of
``tripper service,'' a grantee could conclude that it would be
permitted to restructure its public transportation operation
dramatically to accommodate the needs of a local school district and
its students, thereby displacing private school bus operators and their
employees, provided the system keeps the service technically open to
the public.\13\
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\13\ Id. at 24-36.
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Prior FTA Policy
Tripper Service
Under its tripper service definition, FTA originally allowed
grantees to accommodate students only with respect to ``different fare
collections and subsidy systems.'' However, through administrative
decisions over the years, FTA broadened its interpretation of its
tripper service definition to allow grantees to make accommodations
beyond subsidies and fare collection systems. Specifically, FTA began
to allow its grantees to make minor modifications to its route paths
and frequency of service. As FTA stated in one matter concerning the
Erie Metropolitan Transit Authority:
Read narrowly, ``modification of regularly scheduled mass
transportation service to accommodate the needs of school students
and personnel'' means using different fare collections and subsidy
systems. In practice, ``modification of mass transportation
service'' has been broadened to include minor modifications in route
or frequency of scheduling to accommodate the extra passengers that
may be expected to use particular routes at particular times of
day.\14\
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\14\ See In re Erie Metropolitan Transit Authority 1, 4 (1989).
For example, in Travelways, Inc. v. Broome County Department of
Transportation, FTA stated that, ``A familiar type of modification
would be where the route deviates from its regular path and makes a
loop to a school returning back to the point of deviation to complete
the path unaltered.'' \15\ FTA reaffirmed this particular
interpretation of tripper service in its October 12, 2007, RGRTA
determination by permitting RGRTA to operate four loop-like route
extensions, each only several blocks in length, to accommodate the
needs of school students.\16\
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\15\ Travelways, Inc. v. Broome County Dep't of Transp. 1, 7
(1985) (allowing a grantee to run a bus to a point and express to a
school from that point if the grantee ran a second bus along the
regular route path from the point at which the first bus expressed
to the school).
\16\ Letter from Federal Transit Administration to Rochester-
Genesee Regional Transportation Authority at 6 (Oct. 12, 2007).
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FTA has not, however, allowed a grantee such as RGRTA to
restructure its public transportation operation solely to accommodate
the needs of school students--such a modification would be a major
modification. Thus, in its October 12, 2007 letter to RGRTA, FTA
rejected RGRTA's proposed addition of 240 new routes because it would
have constituted a major overhaul of RGRTA's public transportation
system solely to accommodate the needs of school students.\17\
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\17\ Id. at 2-6.
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In addition to minor modifications to route paths, FTA previously
has allowed grantees to modify route schedules and the frequency of
service. For example, in Travelways, FTA stated, ``Other common
modifications include operating the service only during school months,
on school days, and during school and opening and closing periods.''
\18\
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\18\ Travelways at 7.
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Jurisprudence in United States courts has broadened the scope of
FTA's tripper service definition to include essentially any
modification. In United States ex rel. Lamers v. City of Green Bay, the
Seventh Circuit stated (arguably in dicta), ``[T]he City may completely
redesign its transit system to
[[Page 28792]]
accommodate school children as long as all routes are accessible to the
public and the public is kept informed of route changes.'' \19\ Citing
Lamers, the Court in Rochester-Genesee Regional Transportation
Authority allowed RGRTA to restructure its public transportation system
by adding 240 new routes to accommodate the needs of RCSD and its
students.\20\
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\19\ United States ex rel. Lamers v. City of Green Bay, 168 F.3d
1013, 1019 (7th Cir. 1999).
\20\ Rochester-Genesee Reg'l Transp. Auth., No. 07-CV-6378L at
30.
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``Exclusive'' School Bus Operations
FTA has had little prior formal policy regarding ``exclusive''
school bus operations under 49 CFR Part 605. In 1982, FTA attempted to
clarify the meaning of ``exclusive'' school bus service through a
rulemaking.\21\ However, in 1990, FTA withdrew the rulemaking because
it believed that the regulations were ``functioning adequately.'' \22\
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\21\ Advance Notice of Proposed Rulemaking, 47 FR 44,795,
44,803-04 (Oct. 12, 1982).
\22\ Notice of Proposed Rulemaking: Withdrawal, 55 FR 334 (Jan.
4, 1990).
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In school bus adjudications, parties did not directly address the
issue of ``exclusive'' school bus operations until United Food and
Commercial Workers District Union Local One v. Rochester-Genesee
Regional Transportation Authority.\23\ In resolving that issue, FTA
examined the Federal-Aid Highway Act of 1973, and finding that the
language of the Act's school bus provision was ambiguous, FTA looked to
the legislative history of Act for some guidance.
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\23\ FTA School Bus Docket Number 2006-02 1 (2007).
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In an early version of the Federal-Aid Highway Act, Congress did
not use the word ``exclusively'' in the school bus provision, but
rather, focused the language of the Act on preventing unfair
competition between federally funded grantees and private school bus
operators. That language is as follows:
[N]o financial assistance is to be provided to an applicant
which engages, directly or indirectly in transporting school
children and personnel to and from school and school authorized
functions or which proposes to expand present routes, schedules, or
facilities for that purpose in competition with or supplementary to
service criteria provided by a private transportation company or
other person so engaged in so transporting such children and
personnel.\24\
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\24\ S. Rep. No. 93-355, at 86 (1973) (emphasis added).
After the bill passed the House and the Senate, the conference
modified the above provision in an effort to further protect private
school bus operators from unfair competition with federally funded
grantees, but the conferees still did not use the word ``exclusively.''
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The conferees used the following language:
[N]o federal financial assistance is to be provided under those
provisions of law for the purchase of buses to any applicant who has
not first entered into an agreement with the Secretary of
Transportation that the applicant will not engage in school bus
operations in competition with private school bus operators.\25\
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\25\ S. Rep. No. 93-355, at 87 (emphasis added).
As evinced by the above language, Congress intended to prevent
unfair competition between federally funded grantees and private school
bus operators. Therefore, in District Union Local One, FTA concluded
that it would defeat the purpose of the Federal-Aid Highway Act and
eviscerate 49 U.S.C. 5323(f) if it accepted a grantee's argument that
its service was technically nonexclusive and open to the public, but
where: (1) The grantee had designed the service specifically for
students, without regard to demand from the nonstudent public; (2) the
vast majority of passengers were students; and (3) as a result, the
routes would displace the private school bus industry and its
workers.\26\ In efforts to prevent the unfair competition which
Congress sought to prevent, FTA rejected RGRTA's arguments and
prohibited RGRTA from providing its ``exclusive'' school bus service.
FTA utilized this same policy and analysis when it struck down RGRTA's
proposed service in its October 12, 2007 letter \27\ and again in
Laidlaw Transit, Inc. v. Rochester-Genesee Regional Transportation
Authority.\28\
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\26\ District Union Local One, FTA School Bus Docket Number
2006-02 at 10-11 (holding the Rochester-Genesee Regional
Transportation Authority's (RGRTA) school bus service was designed
and modified ``exclusively'' for the Rochester City School District
and its students because students constituted a significant
proportion of passengers on the school bus routes and RGRTA designed
the routes without regard to demand from the nonstudent public).
\27\ See Letter from Federal Transit Administration to
Rochester-Genesee Regional Transportation Authority at 3-4 (Oct. 12,
2007).
\28\ See Laidlaw Transit, Inc. v. Rochester-Genesee Reg'l
Transp. Auth., FTA School Bus Docket Number 2007-01 1, 4 (2007).
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The Court in Rochester-Genesee Regional Transportation Authority,
however, applied a narrower, more restrictive analysis when it
interpreted the word ``exclusively'' in the context of ``school bus
operations.'' Notwithstanding the fact that RGRTA designed its 240
express school bus routes exclusively for the benefit of RCSD and its
students, without regard for demand from the nonstudent public, the
Court held that, because a member of the general public could board a
bus along one of RGRTA's proposed 240 routes, RGRTA's proposed service
was not ``exclusive'' and therefore did not constitute impermissible
``school bus operations.'' \29\
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\29\ Rochester-Genesee Reg'l Transp. Auth., No. 07-CV-6378L at
20-24.
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Proposed FTA Policy
Purpose of Proposed FTA Policy
In the proposed policy set forth below, FTA clarifies its guidance
regarding FTA's interpretation of its school bus operations regulations
under 49 CFR Part 605 in light of the Court's decision in Rochester-
Genesee Regional Transportation Authority. FTA respects the Court's
decision in the Western District of New York. However, FTA finds that
the Court's decision is problematic because, if applied elsewhere in
the United States, it could obstruct FTA's ability to execute and
implement Congress' school bus prohibition and Congress' express intent
regarding that prohibition. Therefore, FTA issues this Notice of Policy
Statement and Request for Comment to clarify the status of FTA's
guidance regarding its interpretation of its school bus operations
regulations under 49 CFR part 605, and to resolve, for jurisdictions
outside of the Western District of New York, conflicting issues between
FTA's school bus operations policy and the Court's decision in
Rochester-Genesee Regional Transportation Authority.
In addition, FTA intends to issue expeditiously a notice of
proposed rulemaking to provide clearer definitions of ``tripper
service'' and ``school bus operations'' as well as generally to update
the existing school bus regulation.
Tripper Service
With respect to a grantee's regularly scheduled public
transportation service, FTA narrowly would interpret the definition of
``tripper service'' under 49 CFR 605.3(b) to allow a grantee to (1)
utilize ``various fare collections or subsidy systems,'' (2) modify the
frequency of service, and (3) make de minimus route deviations from
existing route paths in the immediate vicinity of schools to stops
located at or in close proximity to the schools. For example, a grantee
would be permitted to provide more frequent service on an existing
route to accommodate increased student ridership before and after
school. FTA would allow a grantee to alter existing route paths to
accommodate the needs of school students by making truly de minimus
route deviations from existing
[[Page 28793]]
route paths to drop off and pickup students at stops located on school
grounds or in close proximity to the schools. FTA believes that its
proposed policy regarding its interpretation of the definition of
``tripper service'' is consistent with both the statutory language and
the language of 49 CFR 605.3(b). The policy permits only the type of
design or modification accommodations that FTA historically has
allowed.
``Exclusive'' School Bus Operations
To effectuate the intent of Congress when it enacted its school bus
operations prohibition now codified at 49 U.S.C. 5323(f), FTA narrowly
would interpret the definition of ``school bus operations'' under 49
CFR 605.3(b) to encompass any service that a reasonable person would
conclude primarily was designed to accommodate students and school
personnel, and only incidentally to serve the nonstudent general
public. FTA believes that returning to this interpretation of the
definition of ``school bus operations'' is consistent with the
legislative history on the issue and would allow FTA to effectively
implement the express intent of Congress, which is, to prevent unfair
competition between federally funded grantees and private school bus
operators.
Issued in Washington, DC, on this 14th day of May 2008.
James S. Simpson,
Administrator.
[FR Doc. E8-11151 Filed 5-16-08; 8:45 am]
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