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