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HOW CAN WE MAXIMIZE PRIVATE SECTOR

PARTICIPATION IN TRANSPORTATION?—PART II

HEARING

BEFORE THE

SUBCOMMITTEE ON ENERGY POLICY, NATURAL

RESOURCES AND REGULATORY AFFAIRS

OF THE

COMMITTEE ON

GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED EIGHTH CONGRESS

SECOND SESSION

SEPTEMBER 30, 2004

Serial No. 108–277

Printed for the use of the Committee on Government Reform

(

Available via the World Wide Web: http://www.gpo.gov/congress/house

http://www.house.gov/reform

(II)

COMMITTEE ON GOVERNMENT REFORM

TOM DAVIS, Virginia, Chairman

DAN BURTON, Indiana

CHRISTOPHER SHAYS, Connecticut

ILEANA ROS-LEHTINEN, Florida

JOHN M. MCHUGH, New York

JOHN L. MICA, Florida

MARK E. SOUDER, Indiana

STEVEN C. LATOURETTE, Ohio

DOUG OSE, California

RON LEWIS, Kentucky

TODD RUSSELL PLATTS, Pennsylvania

CHRIS CANNON, Utah

ADAM H. PUTNAM, Florida

EDWARD L. SCHROCK, Virginia

JOHN J. DUNCAN, JR., Tennessee

NATHAN DEAL, Georgia

CANDICE S. MILLER, Michigan

TIM MURPHY, Pennsylvania

MICHAEL R. TURNER, Ohio

JOHN R. CARTER, Texas

MARSHA BLACKBURN, Tennessee

PATRICK J. TIBERI, Ohio

KATHERINE HARRIS, Florida

MICHAEL C. BURGESS, Texas

HENRY A. WAXMAN, California

TOM LANTOS, California

MAJOR R. OWENS, New York

EDOLPHUS TOWNS, New York

PAUL E. KANJORSKI, Pennsylvania

CAROLYN B. MALONEY, New York

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

DANNY K. DAVIS, Illinois

JOHN F. TIERNEY, Massachusetts

WM. LACY CLAY, Missouri

DIANE E. WATSON, California

STEPHEN F. LYNCH, Massachusetts

CHRIS VAN HOLLEN, Maryland

LINDA T. SANCHEZ, California

C.A. ‘‘DUTCH’’ RUPPERSBERGER, Maryland

ELEANOR HOLMES NORTON, District of

Columbia

JIM COOPER, Tennessee

BETTY MCCOLLUM, Minnesota

———

BERNARD SANDERS, Vermont

(Independent)

MELISSA WOJCIAK, Staff Director

DAVID MARIN, Deputy Staff Director/Communications Director

ROB BORDEN, Parliamentarian

TERESA AUSTIN, Chief Clerk

PHIL BARNETT, Minority Chief of Staff/Chief Counsel

SUBCOMMITTEE ON ENERGY POLICY, NATURAL RESOURCES AND REGULATORY

AFFAIRS

DOUG OSE, California, Chairman

EDWARD L. SCHROCK, Virginia

CHRISTOPHER SHAYS, Connecticut

JOHN M. MCHUGH, New York

CHRIS CANNON, Utah

NATHAN DEAL, Georgia

CANDICE S. MILLER, Michigan

PATRICK J. TIBERI, Ohio

JOHN F. TIERNEY, Massachusetts

TOM LANTOS, California

PAUL E. KANJORSKI, Pennsylvania

DENNIS J. KUCINICH, Ohio

CHRIS VAN HOLLEN, Maryland

JIM COOPER, Tennessee

EX OFFICIO

TOM DAVIS, Virginia HENRY A. WAXMAN, California

BARBARA F. KAHLOW, Staff Director

LAUREN JACOBS, Clerk

KRISTA BOYD, Minority Counsel

(III)

C O N T E N T S

Page

Hearing held on September 30, 2004 ..................................................................... 1

Statement of:

Dorn, Jennifer L., Administrator, Federal Transit Administration, U.S.

Department of Transportation, accompanied by D.J. Gribbin, Chief

Counsel, U.S. Department of Transportation, Federal Highway Administration; and William Sears, Chief Counsel, Federal Transit Administration ............................................................................................................ 11

Tangherlini, Dan, director, D.C. Department of Transportation, Washington, DC; Tom Mack, chairman, Tourmobile Sightseeing, Washington,

DC; Jerome Cooper, chairman, Transit Alliance and president, Jamaica

Buses, Inc., Jamaica, NY; David N. Smith, director of marketing and

sales, Oleta Coach Lines, Inc., Williamsburg, VA; and Steven Diaz,

esq., former Chief Counsel, Federal Transit Administration, Department of Transportation, Law Office of Steven A. Diaz .............................. 50

Letters, statements, etc., submitted for the record by:

Cooper, Jerome, chairman, Transit Alliance and president, Jamaica

Buses, Inc., Jamaica, NY, prepared statement of ...................................... 88

Diaz, Steven, esq., former Chief Counsel, Federal Transit Administration,

Department of Transportation, Law Office of Steven A. Diaz, prepared

statement of ................................................................................................... 124

Dorn, Jennifer L., Administrator, Federal Transit Administration, U.S.

Department of Transportation, prepared statement of ............................. 14

Gribbin, D.J., Chief Counsel, U.S. Department of Transportation, Federal

Highway Administration, letters to Congressmen ..................................... 41

Mack, Tom, chairman, Tourmobile Sightseeing, Washington, DC, prepared statement of ........................................................................................ 77

Ose, Hon. Doug, a Representative in Congress from the State of California, prepared statement of ........................................................................... 4

Smith, David N., director of marketing and sales, Oleta Coach Lines,

Inc., Williamsburg, VA, prepared statement of .......................................... 110

Tangherlini, Dan, director, D.C. Department of Transportation, Washington, DC, prepared statement of ................................................................... 53

(1)

HOW CAN WE MAXIMIZE PRIVATE SECTOR

PARTICIPATION IN TRANSPORTATION?—

PART II

THURSDAY, SEPTEMBER 30, 2004

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON ENERGY POLICY, NATURAL

RESOURCES AND REGULATORY AFFAIRS,

COMMITTEE ON GOVERNMENT REFORM,

Washington, DC.

The subcommittee met, pursuant to notice, at 10 a.m., in room

2154, Rayburn House Office Building, Hon. Doug Ose (chairman of

the subcommittee) presiding.

Present: Representatives Ose, Tiberi, Davis (ex officio), Tierney,

and Kucinich.

Staff present: Barbara F. Kahlow, staff director; Lauren Jacobs,

clerk; Megan Taormino, press secretary; Krista Boyd, minority

counsel; and Cecelia Morton, minority office manager.

Mr. OSE. Welcome to this morning’s meeting of the Energy Policy, Natural Resources and Regulatory Affairs Subcommittee. Noting the presence of a quorum, I will call the meeting to order.

Today, we are meeting on the subject of ‘‘How Can We Maximize

Private Sector Participation in Transportation?’’ I am joined by the

gentleman from Ohio, Mr. Tiberi. We are going to go ahead and

commence.

On May 18, 2004, this subcommittee held its initial hearing on

maximizing private sector participation in transportation. Witnesses included the Department of Transportation, think tank experts, and three adversely affected small business operators of

mass transit services. Today, we will focus on mass transit and

highways, and we will further explore DOT’s record in implementing the various statutory and regulatory private sector participation requirements.

There are many advantages to participation by the private sector

in improving America’s transportation system. For example, infrastructure improvement projects can often be completed more quickly and at reduced cost, transportation services can often be delivered more cost-effectively, and Federal and State funds can be devoted to other pressing needs.

In 1964, Congress began to enact laws to encourage private sector participation in transportation. The 1966 law that established

Department of Transportation identified six reasons for the cabinet-level department. The second reason was to ‘‘facilitate the development and improvement of coordinated transportation service

2

to be provided by private enterprise to the maximum extent feasible.’’ DOT’s implementing rules assign primary responsibility for

‘‘evaluation of private transportation sector operating and economic

issues’’ to the Assistant Secretary for Transportation Policy, who is

organizationally located within the Office of the Secretary.

In addition to laws requiring private sector participation to the

maximum extent feasible, Federal regulations support this objective. For example, the governmentwide grants management common rule provides that Federal grantees and subgrantees ‘‘must

not use equipment acquired with grant funds to provide services

for a fee to compete unfairly with private companies that provide

equivalent services.’’

I became especially interested in this subject in March 2003,

when I learned of a public takeover of an over 25-year competitively awarded contract for mass transit services in Sacramento,

California. Since then, I have found a number of things. First, we

have come upon unneeded expenditure of scarce Federal funds,

substantial in nature; second, we have come upon noncompliance

by a federally funded local transit grantee with the Federal law requiring private sector participation to the maximum extent feasible; and, third, we found inadequate enforcement by the Department of Transportation. Now, after the public takeover, in the city

of Sacramento, peak hour bus service is every 15 minutes, versus

every 5 minutes prior to the takeover, and the service costs 76 percent more, that being over $150,000 per bus today versus just over

$86,000 per bus then.

In August 2003, I recommended two primary things: first, that

the Department of Transportation initiate a rulemaking to ensure

implementation of the statutory private sector participation requirements and, second, that the Department of Transportation

take an appropriate enforcement action against the noncompliant

Federal grantee. To date, Department of Transportation neither

initiated a rulemaking, nor took an enforcement action. DOT argued that it is a grant-making, not a rulemaking agency, and it has

a reduced enforcement rule. However, DOT does have a fiduciary

responsibility to assure that Federal grant funds are expended in

accordance with Federal law.

Since my investigation of this case, I have learned of additional

cases involving federally funded grantee noncompliance with existing Federal statutory or regulatory protections. In some cases, the

Department of Transportation has not enforced its own rules and,

as a result, allowed local transit authorities to compete unfairly

with existing private mass transit service providers. In another

case, the New York City Council stated that a proposed takeover

by a local transit agency of franchised private sector bus services

‘‘potentially make the City responsible for paying hundreds of millions of dollars in transfer costs arising from necessary purchases

of infrastructure.’’

Our witnesses today include the Department of Transportation,

current and former expert public officials, and three additional adversely affected small business operators of mass transit services.

Small businesses remain the backbone of our economy. Congress

wants and Americans deserve a reliable and cost-effective transportation system, and one that does not harm existing small business

3

operators of transportation services and does comply with the private sector participation requirements first laid out in 1964 in the

Urban Mass Transit Act.

I want to welcome our witnesses today. They include Jennifer

Dorn, the Administrator of the Federal Transit Administration;

Dan Tangherlini, the Director of the District of Columbia Department of Transportation; Tom Mack, Chairman of the Tourmobile

Sightseeing operation here in Washington, DC; Mr. David Smith,

the director of marketing and sales at Oleta Coach Lines in Williamsburg, VA; Jerome Cooper, the chairman of Transit Alliance

and president of Jamaica Buses, Inc., Jamaica, NY; and Mr. Steven

Diaz, esq., former Chief Counsel for the FTA and the Department

of Transportation.

In addition to these individuals, Ms. Shirley Ybarra, president of

the Ybarra Group and Council Member for the National Council for

Public-Private Partnerships, and former commissioner of the Virginia Department of Transportation, accepted our invitation to testify on September 29th but is unavailable for today’s rescheduled

hearing. Therefore, her testimony will be made part of today’s

hearing record. Last, we invited Iris Weinshall Schumer, commissioner of the New York City Department of Transportation, to testify, but she declined to do so.

[The prepared statement of Hon. Doug Ose follows:]

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Mr. OSE. I want to recognize the gentleman from Ohio for the

purpose of an opening statement.

Mr. TIBERI. Thank you, Mr. Chairman. It is my intent not to

have an opening statement today. We have a number of panelists;

I look forward to hearing from them and asking them questions

once their testimony is done. Thank you, Mr. Chairman.

Mr. OSE. I thank the gentleman. As usual, he is brief and to the

point.

Our practice here, as reflected in committee rules, we swear in

all of our witnesses. Whether you are an administration, business,

or small business witness, what have you, we subject you to the

same regiment across the board. So, our first panel today is Ms.

Jennifer Dorn, who is the Administrator for the Federal Transit

Administration at U.S. Department of Transportation. The others

that I mentioned will be on our second panel.

Ms. Dorn, if you would please rise and raise your right hand.

[Witness sworn.]

Mr. OSE. Let the record show the witness answered in the affirmative.

Our normal practice here is that, having received your written

testimony, we invite you to share with us the highlights in summary form. We are going to recognize each of our witnesses on each

of the panels for a period of 5 minutes to do that. Ms. Dorn being

the only witness on today’s panel, we might give you 51⁄2 minutes,

but we are going to be pretty sharp on the clock. So, thank you for

joining us today. You are recognized for the purpose of a summary

of your statement.

STATEMENT OF JENNIFER L. DORN, ADMINISTRATOR, FEDERAL TRANSIT ADMINISTRATION, U.S. DEPARTMENT OF

TRANSPORTATION, ACCOMPANIED BY D.J. GRIBBIN, CHIEF

COUNSEL, U.S. DEPARTMENT OF TRANSPORTATION, FEDERAL HIGHWAY ADMINISTRATION; AND WILLIAM SEARS,

CHIEF COUNSEL, FEDERAL TRANSIT ADMINISTRATION

Ms. DORN. Thank you, Mr. Chairman. Thank you for the opportunity to discuss with you and members of the committee how we

can work together to increase private sector participation in public

transportation. I do appreciate the committee’s interest in and vigorous pursuit of private sector participation in America’s transportation network. This administration strongly supports increased involvement of the private sector in the transportation arena, and I

am proud of this administration’s actions to date and the proposals

that we have submitted to Congress support that.

Over the last 31⁄2 years, FTA has pursued our goal of increasing

private sector participation through a number of strategies, including increasing private sector opportunities to deliver services, promoting private sector involvement, reducing administrative barriers to private sector service delivery, and contracting and advocating statutory changes that will help increase private sector involvement in transit.

In November 2002, I asked approximately 75 representatives of

private sector operators, transit agencies, and union representatives to spend a day with me and our senior staff to develop an action plan, what we believe to be a win-win proposal to deliver more

12

public transportation to the American people through collaborations between the public and the private sectors. That group, over

half of whom represented private sector operators, came to a consensus on a number of the most important things that could be

done to support private sector involvement in transportation.

Among other things, they agreed that, at the Federal level, we

should focus on the following four items:

Since the primary objective of private sector involvement should

be to maintain and grow ridership, performance awards should be

developed for private and public operators to grow ridership. The

administration’s reauthorization proposal reflects that.

No. 2, there should be Federal leadership in education and proliferation of best practices, including procurement, cost models for

fair and auditable cost comparisons, and contract administration.

Thus, in the procurement arena FTA has undertaken a number of

measures that this group had suggested to eliminate unnecessary

rules and restrictions, while affording grantees maximum flexibility

to make sound business judgments based on more than simply low

bid.

There has been a renewed emphasis on ensuring sound grantee

procurement practices. We have revised our procurement circular

to the benefit of all of our stakeholders, we have issued best practices, and, with the strong support of both public and private stakeholders who recognize that we need to have more involvement of

both sectors in order to have a fulsome transportation provision for

this country.

Third, there was the view that there should be Federal neutrality

in the choice of providers. FTA should not, in its policies and practices, favor either private sector providers or public sector providers; and, in order to ensure that transit operators operate in a

transparent manner, which was the concern of private sector operators, and to help everyone understand the rules, we have developed, published, and distributed, a plain English brochure that explains the rules with regard to charter services. We are in the process of developing and will soon publish and distribute a similar

plain English brochure that explains the rules with regard to

school bus operations, and we are distributing those nationwide to

private sector operators, public sector operators as well.

The fourth area of focus by this group that we convened suggested that potential competitive contracting should really focus on

new services and services based on new technologies. We took that

advice seriously as well, and we are working very hard across departments to ensure that new opportunities for transportation services are available to the private sector, especially in the growing

arena of human service program transportation services and paratransit services. Conservative estimates put this market for paratransit services at over $5 billion annually, with over 70 percent of

those services provided by the private sector.

Mr. Chairman, given the regulatory and legislative history surrounding the private sector involvement issue, the requirements for

private sector participation are not easily tracked by our stakeholders; they are scattered, indeed, in a variety of laws, regulations, circulars, technical assistance, guides and other materials published

for each FTA program. And, while I continue to believe that a reVerDate 11-MAY-2000 11:01 Mar 10, 2005 Jkt 000000 PO 00000 Frm 00016 Fmt 6633 Sfmt 6633 D:\DOCS\98605.TXT HGOVREF1 PsN: HGOVREF1
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vamping of our regulations and circulars should be undertaken

only after the surface transportation laws are reauthorized, I also

believe that we can do a better job of explaining the current requirements to all stakeholders.

Therefore, I have asked FTA’s general counsel to develop a userfriendly guide to private sector involvement requirements for use

by planning agencies, transit agencies, and private sector transportation providers. I expect the document to again explain in plain

English what the requirements are, how they are enforced, what

sanctions may be applied under what circumstances, and what recourse is available to private parties who believe they have not

been afforded the opportunities provided in law. We will make

every effort to complete this document and circulate it for comment

in the next 90 days.

Again, Mr. Chairman, I appreciate your continued interest in

and concern about protecting private sector transportation operators from unfair competition. I assure you that I will handle any

such matters identified by or brought to FTA for resolution fairly

and in accordance with the applicable laws and regulations, as I

have sought to do in the past. Thank you.

[The prepared statement of Ms. Dorn follows:]

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Mr. OSE. Thank you, Ms. Dorn.

We are joined by my good friend from Massachusetts, Mr.

Tierney, who I am going to recognize for the purpose of an opening

statement.

Mr. TIERNEY. Thank you, Mr. Chairman. I will be brief. I know

that today’s hearing is going to focus on private sector participation

in transportation, and I think private operators play an important

role in providing that transportation throughout the country. That

includes private transit operators who, just like their public counterparts, provide much of the needed transportation for commuters,

students, and passengers.

There is, however, a decision as to whether and how often local

systems should use private operators, and it is not a decision that

should be made by the Federal Government, in my view. Transit

systems are inherently local, and the decisions about using public

or private operators I think should also be local. State and local officials should have the freedom to choose transit operators based on

factors like safety, service needs, reliability, and quality of services.

Particularly in light of Congress’s attention this week on the recommendations of the 9/11 Commission, an important issue we

should be addressing is how we can improve the safety of mass

transit. The 9/11 Commission’s report points out the vulnerabilities

of service transportation systems, and I am interested in hearing

from the witnesses testifying today their thoughts on what needs

to be done to improve transit safety.

I also, Mr. Chairman, ask unanimous consent that the hearing

record be held open for 10 days so that the American Public Transportation Association can submit information to be included in the

record.

Mr. OSE. Without objection.

Mr. TIERNEY. I thank you, Mr. Chair, and yield back.

Mr. OSE. I thank the gentleman.

I am pleased to recognize the gentleman from Ohio for the purpose of an opening statement.

Mr. KUCINICH. I want to thank the Chair for holding this hearing

and just say that mass transit in our major cities is no small matter. Many people who are transit-dependent depend on the decision

of this Congress to help make sure that those systems are intact.

So, any decisions that are made by this committee and by the Congress with respect to providing for greater participation of the private sector in transportation needs to be scrutinized very carefully

with respect to service, reliability, the cost. I appreciate the fact

that the Chair is willing to go into these issues. Thank you.

Mr. OSE. I thank the gentleman for his opening statement.

Our normal practice is we go to rounds of 5 minute questions.

One of the curious things about Congress is we all have multiple

commitments, so, if you see Members get up and leave and come

back and leave and come back, that is ordinary business around

here. So, bear with us as we struggle through that.

I think given my friend’s time constraints, I am prepared to

allow you to go first, if you want. Mr. Tierney for 5 minutes.

Mr. TIERNEY. Thank you for that courtesy; I appreciate it.

Ms. Dorn, thank you. As you noticed from my opening statement

and from questions that I asked Assistant Secretary Frankel last

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May when he was here, I raised the point whether local transits

are, I think, local, and so I think they should be the ones to decide

what their needs are. I ask, don’t you think that the ones that

make the decisions on how to run their transit operations should

also make the decision on whether to use public or private transit

sector people?

Ms. DORN. Certainly the historic approach to transportation in

this country has been the view that there is a Federal responsibility to assist in providing funds for necessary transportation. Decisions about what kind of transportation and where it should be located have been relegated to the local authorities and local decisionmaking process. The Federal statutes that outline requirements for grantees who receive Federal funds are very clear that

this local decisionmaking must be respected.

By the same token, the laws are quite clear, even if in many

places in the law they indicate that certain processes are important

to follow. A specific one has to do with the public involvement process. And, while we do not prescribe explicitly what that local process must be, we are very precise about the kinds of public involvement that are required for the locals to make those decisions so

that no one is left out. Fundamentally, it is a local decision, but

there are caveats about how those local decisions are made in the

light of day with public notice about routes, fares, schedules, and

those sort of things so that the local community has an opportunity

to have input on those decisions.

Mr. TIERNEY. So, we are clear and we agree that there is nothing

in the law that prevents local communities from choosing private

transit providers if they wish to, right?

Ms. DORN. Correct.

Mr. TIERNEY. Are there limited circumstances when public transit agencies should be permitted to provide community-based charter services directly to local governments and private nonprofit

agencies that would not otherwise be served in a cost-effective

manner by private operators? Now, that is the question. I am going

to give you an example to help you out on that.

Ms. DORN. OK. Thank you. I appreciate that.

Mr. TIERNEY. I do this by way of the representative who represents Santa Monica Transit. Apparently, the Monterey-Salinas

Transit was recently unable to transport volunteers from the Defense Language Institute at the Monterey Presidio to rehabilitate

selected homes owned by elderly and disabled. The community

group is called the Monterey-Salinas Rebuilding Together With

Christmas in April. As a result, no service was provided for the

group, since no private charter operator stepped up to the plate.

In an instance like that, the question really is would that be an

appropriate limited circumstance where public transit agencies

might be permitted to provide those community-based charter services?

Ms. DORN. That is a very good question about a complex set of

local circumstances. Let me answer it in general terms and be very

clear that I am not talking about the Santa Monica issue; it has

not been brought to my attention.

If the grantee is providing charter bus service, what it is that the

FTA does is we have responsibility for ensuring that, in fact, charVerDate 11-MAY-2000 11:01 Mar 10, 2005 Jkt 000000 PO 00000 Frm 00029 Fmt 6633 Sfmt 6633 D:\DOCS\98605.TXT HGOVREF1 PsN: HGOVREF1
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ter service is provided. Mass transit is defined in the law as not

being charter, so our view must be is this in fact charter in order

to determine whether or not there is inappropriate or appropriate

competition with an equitable type of service.

So the kind of questions we ask, as the grant manager, we say

did the grantee receive approval from FTA for one of the exemptions provided under law, that no private operator, for example, is

willing and able; did the grantee publish notice of intent to provide

the service; or did a private charter operator request that the

grantee provide charter equipment or service because it did not

have accessible equipment.

We have very specific questions so that we can follow the intent

of the law, which deliberately states that charter is not mass transit. It is a very complex arena, but we have laid out in statute and

in regulation, in circulars, in guidance, and in our triennial process

exactly what it is that is required so that the law is followed.

Mr. TIERNEY. I yield.

Mr. OSE. The difference between charter and mass transit, if I

understand correctly, is whether it is an open door or closed door?

Ms. DORN. That is one of a number of conditions, yes, that is correct.

Mr. OSE. I want to come back to those other conditions.

Mr. TIERNEY. I yield back. Thank you.

Thank you, Ms. Dorn.

Ms. DORN. Thank you.

Mr. OSE. All right, I am going to take my 5 minutes.

Those other conditions as to whether or not it is a charter or

mass transit, one is open door versus closed door.

Ms. DORN. Whether a fee for service has been charged; whether

it is offered to—the open door is, I assume, opened to a closed——

Mr. OSE. Anybody walk-up?

Ms. DORN. Exactly. Specified times would be a part of a charter

threshold; and that schedules and the amount that you pay can be

altered by who has requested the service; and, whether the destination is determined by parties seeking the service. We have a whole

list of what charter is and what mass transit is, and those are the

threshold questions that we ask.

Mr. OSE. How many of those standards have to be met in order

for it to be judged to be a transit service as opposed to a charter

service?

Ms. DORN. It is my understanding that the issue of the control

of the fares and the schedules very often is the critical balancing

test. These decisions have to be made in the context of a case-bycase decision, so I can’t say that every single test must be met in

its entirety. There is some allowance for discretion, but these are

the general requirements for meeting the definition of charter.

Mr. OSE. In the Defense Language Institute that my friend referenced, I presume that was a charter, or determined to be a charter service?

Ms. DORN. I couldn’t comment on the specific case. I can say that

these are the definitional requirements to meet the test. So, I

wouldn’t want to, at the spur of the moment, say it is or it is not.

Mr. OSE. So, if there is a bus service—and we are, at the moment, going to leave it undefined—if there is a bus service from

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point A to point B that is regularly scheduled to leave point A at

such and such a time and has scheduled stops along the way intermediate to getting to point B, that would be one of the standards

FTA uses to determine whether this is a charter or a transit service? Do I understand that to be one of the thresholds?

Ms. DORN. If those schedules and stops had been determined not

by the grantee, so to speak, or the provider of the service, but the

acquirer of the service. So control of where it stops and when,

under mass transit, is made by the grantee, by the service provider, rather than those who are procuring the service.

Mr. OSE. So, if the acquirer of the service determines where it

stops, it is a charter?

Ms. DORN. That is one of the conditions, correct.

Mr. OSE. If the provider of the service determines the stops, one

of the tests there would be that it is a transit service?

Ms. DORN. That is one of the conditions, yes. That is one of the

ways that it allows us to determine whether, under the law, it is

mass transit or charter.

Mr. OSE. OK. In other words, you have the acquirer of the service, you have the provider of the service, and then you have the

people who use the service. If the people who use the service pay

a fee to board the bus, is that one of the standards used to determine whether it is a transit service or a charter service?

Ms. DORN. A fee to board the bus?

Mr. OSE. Yes, like $1 to get on the bus.

Ms. DORN. Well, I understand that, yes, sir. If it is a part of the

contract for service, then that is a charter.

Mr. OSE. So, if the acquirer of the service, who has determined

the schedule and the route and all that, tells the provider of the

service you may charge your users $1, then that would reinforce

FTA’s conclusion that it is a charter. But, if the acquirer makes no

such requirement of the provider, either pro or con to whether or

not they charge a fee for their service, that would be indicative of

transit service?

Ms. DORN. Those conditions may or may not. It is all dependent

on the specifics of the contract, the specifics of the case as interpreted by the very issues that we need to consider by law of what

is charter and what is mass transit. So, Mr. Chairman, I just hesitate to posit by taking one particular condition and then to say in

this instance that is charter. And, certainly we could very carefully,

for the record, provide an answer, but it very likely would be the

same answer; it may or may not, depending on other aspects that

we have to consider.

Mr. OSE. What are the other aspects?

Ms. DORN. What we talked about, the fee for service, whether it

is under the contract, it is to a specific group of people, whether

the people who ride can alter the time or the people who procure.

There are a number of issues defined in our regulation about what

is charter service.

Mr. OSE. It would seem to me that, on each of these standards,

as it relates to a predetermined route, you either have a predetermined route or you don’t. It would seem to me that if someone who

boards the bus is assessed a fee for that on a use basis, you either

have that or you don’t. You either have the ability to change the

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arrival or departure times or you don’t. You either have the ability

to change the route or you don’t. And, what I am trying to get is

whether or not, in the aggregate having evaluated each of those parameters, is there some sort of scoring system that gets you to a

determination whether something is a charter or a transit?

Ms. DORN. In some instances, Mr. Chairman, it is relatively subjective and, as I said, very often the tipping point, so to speak, has

to do with who controls the fares and the schedules. Every provision of different types of service, charter or whatever kind of service, has different kinds of characteristics depending on where they

are going, what the contract is.

So, we look to the specific contract. For example, one contract in

a charter service may permit the driver to stop at a senior citizen

center that wasn’t previously scheduled because his charter contract bus is not yet full, so he or she can divert and go to a senior

citizen center that wasn’t contemplated on that day’s charter trip.

So, I just use that by way of an example that each of these cases

requires very careful examination.

Mr. OSE. You are saying that some of these parameters may actually indicate one as opposed to other parameters may indicate exactly the opposite. In effect, one of the tests that you have highlighted, you have the ability to waiver from a fixed route, but that

would indicate that it is either a transit or a charter, without a definitive determination. But, then you may have another thing

where you pay a charge to get in, which indicates it is exactly the

opposite. That is what you are suggesting, that you have to take

them in the aggregate rather than individually, if I understand

your testimony?

Ms. DORN. I would just say that each case is evaluated on its

own merits in comparison to the standards that are defined. And,

the nature and type of transportation in our country is so rich and

so diverse that it must, and should, be made on a case-by-case

basis with a very as strict as possible definition. So, I would not

want to say that we have to take the aggregate versus weighing

this or that.

Mr. OSE. I thank the gentlelady.

The gentleman from Ohio.

Mr. TIBERI. Thank you, Mr. Chairman.

Ms. Dorn, do you believe that a publicly funded entity should be

in the business of providing service competition in the same market

with an already private serving entity?

Ms. DORN. A couple of comments with respect to that good question, Congressman. First of all, this administration is strongly supportive of encouraging, enabling under the law private sector participation in transportation. That serves every community better

when those options are available and they are exercised when locally preferred, and it allows transportation to be more robust and

to continue our economy’s growth. First point.

Second point, FTA is bound by the strict reading of the law in

terms of under what conditions there can be appropriate competition or not. The FTA law specifically allows federally funded mass

transit transportation to compete with the private sector under certain conditions, and there are a number of conditions that are outlined in the law that only if that service, for example, is essential

29

to a program of service, not the grantee’s, a program of service for

the community; if it provides for participation of private companies

to the maximum extent feasible; if just compensation is paid; and,

it is my understanding, labor protections are in place. So, the law

very specifically tells us under what conditions it is appropriate for

public to compete with private in the arena of mass transportation,

and we have endeavored at the FTA to fulfill and respect very carefully that careful crafting in statute.

Mr. TIBERI. Let me get a little more specific. In our May 18th

hearing earlier this year, ENOA Corp. in Hawaii presented one

such case.

Ms. DORN. I am sorry, I am having trouble hearing.

Mr. TIBERI. ENOA Corp., at our May 18, 2004 hearing, presented

one such case. In today’s hearing Oleta Coach Lines in Williamsburg will be presenting another such case of the public sector competing with the private sector. Since January 20, 2001, can you tell

me how many times the FTA has enforced the provision in its own

rules to ensure that local government mass transits are not competing unfairly with existing private sector companies?

Ms. DORN. First, may I comment on the Williamsburg case? It

is my understanding that is on appeal to my office, so it would be

inappropriate to comment.

Mr. TIBERI. OK.

Ms. DORN. I just wanted to make the record clear on that.

With respect to how we enforce what we vigorously believe and

what the law requires, we are a grant-making agency that has very

strict contractual requirements with every grantee. With respect to

private sector participation, we have planning requirements generally for both the grantees and the metropolitan planning organizations, and we insist that they take a strong look at what has

been required in the law about private sector participation.

As you know, Congress has very seriously limited FTA’s authority to enforce or to withhold certification in that arena; however,

there are other arenas, the charter bus issue, the school bus violation, etc., where we take a very close look through triennial reviews, which we work with our grantee regularly, we do quarterly

reviews, and we are very serious about their knowing the private

sector participation requirements and fulfilling them.

For example, in the triennial review we have determined there

were about 12 formal complaints with respect to charter or the triennial review. We have had, over the past several years, 10 findings in our triennial review that indicate there is a problem with

how the transit agency completes that private sector requirement.

We have very vigorously enforced to make sure that they remedy

those problems, and I am pleased to say that in the 10 instances

where we found a violation of private sector involvement, those

have all been remedied by the grantee.

Mr. TIBERI. You can just give me a number answer, if you could,

on this. Since January 2001, how many protests have you received

from existing private sector mass transit providers about unfair

competition? Just if you could give me a number.

Ms. DORN. I know of none at the formal headquarters level. However, I make it very clear that in our grant-making responsibility,

our regional offices are working daily with our grantees, and many

30

times informally they will say to the grantee we don’t see your public involvement process, you don’t have a public notice, we are

going to withhold funds, or let us wait until you put this mechanism in place. So many times that is informally resolved. Our

strong interest, as the Administrator of mass transit programs, is

to ensure that the community receives the services that are in so

many cases desperately needed.

In the context of doing that, we work on a day-to-day basis to

make sure that our grantees are compliant with the law and that

we don’t stop the delivery of service. What we want to do is to get

compliance. Our records at the headquarters level show that these

kinds of complaints are rare.

Mr. TIBERI. Mr. Chairman, can you indulge me just one final

question to followup?

Mr. OSE. I would indulge you however you like.

Mr. TIBERI. Just a yes or no answer. Take your FTA hat off. Do

you believe that a public sector entity should compete with a private sector entity already in existing market? Take your FTA hat

off. Yes or no?

Ms. DORN. Sir, I won’t take off my FTA hat, but I would say to

you that personally and professionally I believe there is wisdom in

the law as they have prescribed the mass transit issue. I think

there are many factors to be considered, and I believe that this administration has proposed significant enhancements for private sector involvement, which I thoroughly support, and that would make

the law even better.

Mr. TIBERI. Thank you.

Mr. OSE. I want to followup on a question you asked having to

do with Williamsburg.

Ms. Dorn, on September 14th, a local James City Council Community Services official stated that ‘‘Williamsburg Area Transport

has been pleased to operate this successful pilot project, but does

not intend to operate the route in the future.’’ Would that charge

your response to Mr. Tiberi’s inquiry regarding that matter and

your freedom to comment on it?

Ms. DORN. I am sorry, I am having trouble hearing.

Mr. OSE. Williamsburg Area Transport does not intend to operate the route in the future, as of September 14, 2004.

Ms. DORN. I would still hesitate to comment on the facts of the

matter, because I am not aware of all of the facts of the matter.

So, I would suggest that I would be very happy to take a look at

the matter if it is not a formal complaint that needs to go through

a particular process, but I think it is risky to posit something when

I don’t have the entire facts.

Mr. OSE. I am pleased to recognize the chairman of the full committee who joins us today, Mr. Davis of Virginia.

Mr. DAVIS. Thank you, Mr. Ose. I appreciate your holding this

hearing. I just have one question.

On the active and proposed public-private partnerships in Virginia, we have a completed project, the Pocahontas Parkway, and

five active public-private partnerships now: Route 28, Route 288,

the Colefield Expressway, Jamestown 2007, and Route 58. In addition, we have six rail or road projects that are in the proposal

stage, including Dulles rail, which is very critical; the Hot Lanes

31

on the Beltway; Hot Lanes on I–95 and I–81, widening the Powhite

Parkway western extension in the third; Hampton Roads Crossing.

What is your view on all such proposed projects; have you been

involved; and can you comment on the Dulles rail project in particular?

Ms. DORN. Sure. Let me begin, Congressman Davis, with the

first point, Washington-Dulles. The project which has now been approved to be into preliminary engineering, we are pleased that this

is the first to use the procurement method under Virginia’s Private-Public Partnership Act for Mass Transit. We believe that this

has very important prospects for delivering on time, on budget this

important transportation segment in this corridor. It is one of

FTA’s New Starts proposals, and we are certainly supportive of the

increased private sector investment.

Our primary involvement, however, has been related more to the

criteria for financial investment and whether it meets the test.

However, we look forward to continuing to work with the grantee

in this unique and hopefully growing public-private partnership approach.

With respect to the other five highway public-private partnerships, I would want to defer to my colleague, Federal Highway Administrator. We can either do that for the record or we have an individual here who could speak more specifically.

Mr. DAVIS. Let us hear from him.

Ms. DORN. OK, great. D.J. Gribbin is the Chief Counsel for the

Federal Highway Administration.

Mr. DAVIS. Was he sworn?

Mr. OSE. Mr. Gribbin, please rise and raise your right hands.

[Witnesses sworn.]

Mr. OSE. Let the record show the witness answered in the affirmative.

The gentleman from Virginia.

Mr. GRIBBIN. Thank you, Mr. Chairman. In response to your

question, the Federal Highway Administration has been working

very closely with VDOT and the Warner administration on all of

those projects. In fact, on the I–81 project in Virginia in particular,

that is what we call a SEP–14, a Special Experimental Project 14,

which we use on a case-by-case basis to help advance public-private

partnerships. In this case, we have a regulation that does not allow

a State to issue an RFP prior to a recorded decision on a project.

We use SEP–14 to waive that requirement because of the unusual

nature of the I–81 project. That was the first time in the Nation

that we had done so.

Mr. OSE. I thank the gentleman.

Ms. Dorn, currently FTA has 18 codified rules, including one for

planning assistance and standards, one for project management

oversight services, one for credit assistance for surface transportation projects, but has none on private sector participation. And

the source that I am referring to is right here—the Code of Federal

Regulations. In 1994 Congress passed amendments to the 64 Mass

Transit law requiring private sector participation to the maximum

extent possible, and that is Sections 5306(a) and 5307(c) of Public

Law 103–272.

32

In a June 28th of this year reply to one of my post-hearing questions, the Department of Transportation stated, ‘‘Section 5307(c)

compels FTA to accept a grantee’s annual certification of intent to

comply. . . . FTA carries out the Section 5307(c) mandate through

the agency’s triennial review process.’’

DOT also noted that in 1994 the prior administration rescinded

the Reagan administration’s October 1984 nonbinding guidance on

private sector participation.

In your written statement for today’s hearing, you stated ‘‘in our

judgment additional rulemaking is not necessary for FTA to enforce

current law,’’ and that is on page 2 of your statement.

Now, after discovering grantee confusion and noncompliance, in

August 2003, I requested that you issue implementing rules for

Sections 5306(a), dealing with private enterprise participation, and

5307(c), dealing with public participation requirements.

One logical option, it seems to me, is to amend FTA’s major capital investment rule, Part 611, since it already implements part of

49 U.S. Code Section 5309, Capital Investment Grants and Loans.

Do you intend to amend an existing FTA rule or issue another

freestanding FTA rule in order to clear up grantee confusion on

this matter?

Ms. DORN. Mr. Chairman, FTA addresses private sector participation requirements in a variety of regulations and circulars, including the very important joint FTA-Federal Highway Administration planning regulations implementing the two sections which you

mentioned, 5306 and 5307. With considerable changes affecting the

private sector involvement now before Congress, we are very hopeful that those will pass, and I do not believe that it would be fruitful to amend the current regulations at this time.

However, as I indicated in my oral statement, I agree that because there are so many places at which private sector involvement

requirements are in the law, the regulations, the circulars, that I

do believe a clarification is needed even in the interim, while we

await passage of the legislation; and I have directed my staff to develop a plain English guide, if you will, for comment, and we expect

that to be ready for circulation within 90 days.

It is my view that currently we do not need to modify the rules

to get clarification. We may need to better explain the rules that

exist and make sure that they are in a more user-friendly fashion.

Mr. OSE. I am trying to find the assurance under which this subcommittee basically can say this issue has been resolved so I can

go on to the next, because I have no shortage of similar issues in

other agencies that are kind of like in a queue waiting to be looked

at. I am not sure that I share your confidence that the highway authorization bill is going to be passed and that will take care of

clarifications such as you suggest.

This isn’t exactly a new issue. I have to express some dissatisfaction to you that, notwithstanding your comment that you are going

to undertake guidance, guidance isn’t binding. It just simply isn’t

binding; it has no legal force. I am just not convinced that, frankly,

you are taking this very seriously.

Ms. DORN. In our agency, contractual commitments are definitely

binding, and I can assure you that we have very vigorously enforced, through our triennial review process and the master agreeVerDate 11-MAY-2000 11:01 Mar 10, 2005 Jkt 000000 PO 00000 Frm 00036 Fmt 6633 Sfmt 6633 D:\DOCS\98605.TXT HGOVREF1 PsN: HGOVREF1
33

ment that all grantees must sign and certify, if and/or when we

find a violation of these private sector requirements, we get on it.

And, in fact, as I mentioned, of the 10 that we discovered over

the past number of years, each one of them has been resolved. We

don’t give the agency the option to resolve it in the long-term; we

say X number of days we expect the public involvement process, for

example, to be remedied by adequate private notice, etc.

Mr. OSE. Well, I would like to explore that for a little bit, because I have more than a passing knowledge of one that I brought

to your attention. Pursuant to a triennial review you did of SACRT

back, I believe, in the year 2000, you entered into a Memorandum

of Understanding regarding a Standard Operating Procedure for

the days going forward.

Yet when I brought it to your attention that Sacramental Regional Transit has not complied with the requirements of that

MOU in terms of how they conduct their affairs relative to one

public-private competition, I have yet to see the first meaningful

step whereby FTA would hold those folks accountable for not complying with an agreement that they signed long prior to the issue

of this public-private competition arising.

This has to do with the issuance of a contract for service, but

even more fundamentally how that contract was awarded in the

first place, which your people examined under that triennial audit,

identified the flaws, brought them to the attention of the local entity, had them sign an agreement saying that they would fix their

systems; they haven’t fixed their systems, I have brought it to your

attention, and nothing has happened.

Ms. DORN. Mr. Chairman, we have documentation that requirement has been met, in terms of public involvement, and we asked,

in the context of the case that you mentioned, for that documentation to be submitted. We examined it and we found it to be sufficient. To our knowledge, the grantee is in compliance. If you have

additional evidence to that effect, FTA would eagerly take a look

at that matter to ensure that it is remedied.

Mr. OSE. My point is that there was absolutely no consequence

for the overt act commissioned by Sacramento RT for changing

their advertising pattern from the historical norm in a single instance, the net result of which was to take a private service provider out of a position and replace them with a public service provider. You can call it potato soup if you want, but a rose by any

other name has thorns.

This was a screw-up on the part of FTA. You can dance around

the issue, you can talk about minimal compliance, but the net effect of the lack of oversight on behalf of FTA in terms of the Memorandum of Understanding that resulted from your triennial review

is that the advertising that should have taken place in a particular

manner did not and a private provider lost a service.

Now, you and I can sit here and debate it all you want, but the

net effect is that the system got hijacked; I brought it to your attention. Near as I can tell, you haven’t even sent a single letter to

the municipal entity calling to their attention the fact that they

changed their system, and I have to express to you some not so

small dissatisfaction with that.

34

Ms. DORN. I understand and respect that. I respectfully disagree.

We have done everything we have been able to do to both resolve

the case fairly and appropriately under the terms of the law, and

it is our understanding, clearly been documented, that this agency

is in compliance with what we required of them in the triennial review.

Mr. OSE. Under the basis that it was a charter service, as opposed to a transit service?

Ms. DORN. That is our lawyer’s view of the law.

Mr. OSE. The parameters of which are very subjective.

Ms. DORN. Pardon me?

Mr. OSE. The parameters of which, according to your earlier testimony, are highly subjective.

Ms. DORN. I don’t believe I said highly subjective. There are elements of subjectivity, and that is why there is case law that would

advise us and very specific lengthy list of factors, no single factor

being the exclusive factor.

Mr. OSE. You can see why I was so interested in the parameters.

I have no small frustration in getting FTA to define what those factors are in a determinant status so that people can actually rely

on them in the future. That is why I asked for a rulemaking, as

opposed to guidance, on these issues.

Ms. DORN. We certainly have not kept as secret the factors which

define charter; anything but. I personally sent a letter to over 600

grantees in the last year to very strictly define what is charter,

what is not, to what standards they must be held accountable in

the law and our regulations. So, we are doing everything possible

to make this user-friendly and so that everyone knows what is and

is not a charter.

Mr. OSE. Gentleman from Virginia.

Now, the governmentwide grants management common rule provides various remedies for noncompliance by a grantee, and some

of those remedies include temporarily withholding cash payments

pending correction of the deficiency, disallowing all or part of the

cost of the action not in compliance, wholly or partly suspending

or terminating the current award for the grantee’s program, withholding further awards for the program, taking other remedies that

may be legally available. These are just some of the remedies for

grantee noncompliance.

As it relates to the triennial review that indicated that the

Standard Operating Procedure at SACRT did not meet FTA’s requirements, were any of these remedies implemented?

Ms. DORN. I am not exactly sure where to start on this question

because we have a fundamental disagreement about how the common grant rule applies to FTA programs.

Mr. OSE. Well, let us even go back further.

Ms. DORN. OK.

Mr. OSE. Did you or did you not find SACRT in compliance with

your operating procedures pursuant to your triennial review in the

year 2000?

Ms. DORN. With respect to the bus plans for bus procurement,

correct, we did not find them in compliance. They later came into

compliance through the documentation that was submitted to us.

35

Mr. OSE. I had a conversation with the Executive Director of Sacramento RT on July 14, 2004, in which she told me quite directly,

in response to a direct question, no, we didn’t bother to implement

those things for 3 years. Now, at what point did you make the determination that SACRT was in compliance with the triennial review?

Ms. DORN. I am not sure of the dates, sir, but I do know that

we have documentation, to the best of my knowledge, that those requirements were put in place in a timely fashion.

Mr. OSE. Actually, they told you they were put in place.

Ms. DORN. We saw notifications of public hearings and other

such documentation. I cannot recall what it was, but I asked if we

had the documentation in hand; they said yes; I looked at it. More

importantly, my Chief Counsel thoroughly examined it, and we

were satisfied.

Again, if there is additional evidence that relates to this case,

then we would be more than happy to review it. We do not have

that.

Mr. OSE. For the record, would you please check on the date so

that I can compare the date at which you made that determination

to the date indicated by the Director SACRT, the date indicated to

me in July of this year as to when they actually implemented those

provisions? I will give you a question, if you would like, in writing

to which you can respond.

Ms. DORN. Whatever you prefer, sir. That would be fine.

Mr. OSE. Given the history of this particular grantee and my concern about FTA’s oversight of its compliance, there remains a question dealing with this particular grantee amounting to about $1

million in previous years’ unobligated money that was otherwise directed to SACRT. I am aware that as of September 1st of this year

there were previously unobligated funds totaling $990,000 and

change which were to expire on September 30th, today. Has FTA,

since September 1st, approved the release of these funds to

SACRT?

Ms. DORN. I would be happy to provide that for the record, sir.

I am not aware. We have 2,000 grantees, and certainly in the last

month there is always a rush by our grantees to obligate funds because they have completed adequately the process. I would be

happy to check on that.

Mr. OSE. These are fiscal year 2002 funds.

Ms. DORN. OK.

Mr. OSE. Now, I notice the gentleman who came up and testified

a moment ago has a Blackberry that is readily available. Perhaps

during the course of our conversation he can contact your office and

find out the status of these funds. Do you think that would be possible?

Ms. DORN. We will make every effort.

Mr. OSE. OK.

On our second panel today we have invited two witnesses, Iris

Weinshall Schumer, who is the commissioner of the New York City

Department of Transportation and the chairman of the Transit Alliance representing seven affected private sector transit operators

to discuss the proposed takeover by a federally funded local transit

agency, that being the Metropolitan Transit Authority [MTA], of

36

private sector bus services in Queens, Brooklyn, the Bronx, and

Manhattan that currently operate under contracts with the city.

On June 11th of this year, the Council of the city of New York

held a hearing on this particular idea, and its briefing paper for the

hearing stated that the proposed takeover potentially makes the

city responsible for paying hundreds of millions of dollars in transfer costs arising from necessary purchases of infrastructure, such

as additional depots, garages, buses, and fueling stations.

The Transit Alliance’s written testimony for today’s hearing

states that ‘‘the most recent budget submitted to the City Council

calls for payment to MTA of $161 million, which is approximately

$11 million more than present costs for delivery of the same service.’’ It also states that ‘‘once the takeover is consummated the

MTA plans to cut service.’’ And, attached is a September 23rd of

this year letter from an AFL–CIO union stating that ‘‘the MTA has

not shown any evidence that it can adequately fulfill this major undertaking. . . . this. . . . would, without a doubt, be a ‘lose-lose’

situation to all.’’

Do you have any estimate of the difference in total public costs

between the current franchisee arrangements and the proposed

takeover that I have just cited?

Ms. DORN. No, sir, I do not.

Mr. OSE. Does FTA play a role in providing funds to the city of

New York necessary to facilitate this takeover?

Ms. DORN. No. It is my understanding not. This issue, as I understand it, as you have described it, it is a local matter at this

point. However, I am asking my Regional Administrator to ensure

that the requirements of the law are known to the grantee so that

private sector involvement requirements, public involvement requirements are met on this very important matter. I certainly

agree that this kind of local decision we must do everything possible to make sure that we make aware to the grantee their requirements for full public involvement so that a decision can be

made. We have received no complaints on that matter to date.

Mr. OSE. My investigation of the situation leads me to believe

that, as it relates to Queens, Brooklyn, the Bronx, and Manhattan,

you have mass transit service being provided by private operators,

and that at least facially it appears to me as if the city of New

York is moving to acquire those services so that such services can

be provided by a public entity. If I understand that correctly, they

cannot use Federal money to effect that change?

Ms. DORN. It is my understanding that decision by MTA has not

been made; they are in the process of making local decisions on

that. What our role is is to make sure, as MTA and the city pursue

possible changes, that they comply strictly with the law respecting

public involvement and private sector involvement.

Mr. OSE. Under the understanding that you have of this situation, is the city of New York able to rely on the FTA for grants,

the purpose of which would be to effectuate the purchase of these

private services?

Ms. DORN. I have no specific knowledge about that piece. I would

not want to hazard a guess.

Mr. OSE. If the circumstances are as I have described, in that the

services currently being provided in Queens, Brooklyn, the Bronx,

37

and Manhattan, are in fact privately provided, can the city of New

York be confident that FTA will approve their grant for funds, the

purpose of which will be to acquire these private services?

Ms. DORN. Our job is to make sure that the requirements for private participation are met. So, I don’t want to prejudge what they

might decide, in what context, etc. We have a very strict law and

interpretation about what it is that we can and cannot do in terms

of a local decision, and I would not want to hazard a guess as to

what this grantee has in mind, what the city has in mind, but we

do know that there are very specifically laid out protections in certain instances for the private sector, as I described for the Congressman earlier.

Mr. OSE. In a hypothetical situation involving four privately

owned mass transit services in suburbs of a hypothetical large city,

if the hypothetical large city sought to acquire those private services, would the hypothetical large city be able to rely with any degree of certainty on the FTA being willing to provide grants, the

purpose of which would be to acquire such private mass transit

services in such hypothetical suburbs of hypothetical large city?

Ms. DORN. Mr. Chairman, they could certainly rely on the fact

that FTA would vigorously enforce the law with respect to Section

5323(a), which says FTA law specifically allows federally funded

mass transportation to compete with the private sector under certain conditions. So, the test would be whether or not those conditions have been met. That is the law that we are required to administer, and you can believe and accept, I hope, that we will vigorously enforce that law, as is our job.

Mr. OSE. Could you highlight for me your understanding of the

conditions under which a public entity could compete with a private provider under such circumstances?

Ms. DORN. If the service is essential to a program of services, if

the service provides for participation of private operators to the

maximum extent feasible, if just compensation is paid, and if labor

protections are in place. Those are the generic conditions which are

specifically outlined in our rule, in our law, that define the conditions under which the public sector can compete with the private

sector in mass transit.

Mr. OSE. So, if the circumstances are such as to allow the public

sector to compete, just compensation would have to be paid? Just

compensation for what?

Ms. DORN. I don’t want to move inappropriately beyond my

depth; I am not a lawyer. This is a very complex matter of law. I

would like to ask my Chief Counsel.

Mr. OSE. Would Mr. Sears like to be sworn in?

Ms. DORN. That would be fine. I would like him to be. Thank

you.

[Witness sworn.]

Mr. OSE. Let the record show that Mr. Sears answered in the affirmative. Mr. Sears is the Chief Counsel for the FTA.

Sir.

Mr. SEARS. Thank you, Mr. Chairman. The provision of just compensation under 49 U.S.C. 5323(a) is a provision that has not been

opined on much by FTA in recent decades, as there has been very

little in the way of a provider of public transportation acquiring a

38

private provider of transportation. But, the general rule of law in

this area of statutory construction is that there is a reasonableness

standard applied to what just compensation is, and it is determined

on a case-by-case basis.

Mr. OSE. If the public entity provides a service, and the ridership

on the private provider goes down, is there an element of condemnation there?

Mr. SEARS. Condemnation as a matter of law, sir?

Mr. OSE. Yes.

Mr. SEARS. I don’t believe so under 5323.

Mr. OSE. OK.

Mr. SEARS. But, I would have to look into that, sir.

Mr. OSE. Does the issue of just compensation relate to the facilities or to the value of the franchise that might be affected?

Mr. SEARS. Well, if I could reiterate that it has been, I believe,

at least 20 years since this provision of law was exercised before

at the time the Urban Mass Transportation Administration. I believe that just compensation speaks toward the loss to the private

provider of public transportation and that the calculus is grounded

in the loss to the private provider.

Mr. OSE. So, it would go beyond just the actual real estate or rail

line, to the value of the franchise itself?

Mr. SEARS. Again, the jurisprudence surrounding this is somewhat dated, but my recollection is that is correct, yes.

Mr. OSE. I wonder how it is we could possibly share such information with the potential public provider in New York City. Any

idea how that might happen?

Our second panel today, we have two witnesses. The first is the

District of Columbia Director of Transportation and the other is the

only person who for 30 years has operated the competitively awarded private sector franchise known as the Tourmobile, who will discuss the proposed two-phase Downtown Circulator system in Washington, DC.

Now, a May 8, 2000 National Park Service memorandum states:

‘‘The system proposed for implementation in the study may require

financial subsidy to operate and will provide no monetary return

to the National Park Service. The present concessioner-operated interpretive shuttle does not require subsidy and pays fees in which

four National Capital Region parks and the National Park Service—split on an 80/20 franchise fee basis—approximatley $600,000

to $700,000 annually.’’

In December 2000, the Department of Transportation Office of

the Secretary co-signed a Memorandum of Agreement for the proposed circular system, stipulating that DOT agrees to ‘‘Guide the

MOA group through the reauthorization process of the transportation funding bill.’’

What specifically has Department of Transportation done to advance this project since January 21, 2001?

Ms. DORN. FTA has not participated in any monetary way with

respect to this, so no Federal requirements are applicable, including the private sector. I will need to get back to you with respect

to the Memorandum of Agreement; I am not familiar with the specifics of that, although I do know that the FTA’s requirements

would not be triggered because there is no funding involved from

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our agency. So, I would be happy to provide for the record a more

explicit discussion about the Memorandum of Agreement which you

cite.

Mr. OSE. Mr. Sears, it is my understanding we have faxed you

a copy of that Memorandum of Agreement. Is that true?

Mr. SEARS. I apologize, sir, I can’t attest as to whether I received

that fax or not.

Mr. OSE. We will followup on this in writing. What we are looking for is dates and documents for the hearing record.

Now, the District of Columbia Downtown Business Improvement

District Web site on its proposed circulatory system states that current estimates are just under $12 million in capital costs and $6

million annually in operating costs. Do you know if these costs include any financial subsidy? Do they recognize the full buyout cost

for the franchisee known as Landmark Services Tourmobile? If so,

how much is estimated for the subsidy and how much for the

buyout? And, if not, do you have separate estimates for the subsidy

and the buyout, and what are they?

Ms. DORN. FTA has no involvement from the funding perspective, nor any other perspective that I am aware of, so I can’t comment on any more than that.

Mr. OSE. FTA has not been approached, either preliminarily or

otherwise, by the District of Columbia City Council and the like regarding potential grants that might be used to facilitate this takeover?

Ms. DORN. To my knowledge, not; however, our regional offices

on a regular basis attempt to respond to inquiries from organizations, private and public, all the time. So, I wouldn’t want to say

that no one has approached FTA. I do know that no funding has

been committed or contemplated from the headquarters perspective.

Mr. OSE. OK, we will be sending you a letter for further followup

on this subject.

Ms. DORN. OK.

Mr. OSE. This, to me, is one classic example. Having almost been

run down by the Tourmobile on numerous occasions, I want to

make sure that it stays in existence so it can run down my successor.

Mr. Tiberi.

Mr. TIBERI. No further questions.

Mr. OSE. Mr. Davis.

Mr. DAVIS. Let me ask you, the impact of street closings on mobility downtown, are you familiar with that?

Ms. DORN. Sir, I could not speak to that; my colleague from the

Federal Highway Administration would potentially be able to do

that.

Mr. DAVIS. Be better off.

Ms. DORN. Would certainly be better, yes.

Mr. OSE. Bring him up here.

Mr. GRIBBIN. I have already been sworn.

Mr. OSE. You have been sworn.

Mr. DAVIS. Let us talk about these street closings going on downtown. Obviously it has had a huge effect on mobility. It is even

having an effect on mobility around the Capitol, trying to get in in

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the mornings. What is the Federal Government doing to address

access and mobility downtown?

Mr. GRIBBIN. I apologize, Mr. Chairman, I am actually not prepared to answer that question this morning. We can get an answer

back to you.

[The information referred to follows:]

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Mr. DAVIS. All right. I will wait until the next panel.

Mr. OSE. I am sorry, Mr. Chairman, I missed that. I was multitasking.

I want to thank Ms. Dorn, Mr. Sears, the gentleman from Federal Highway for joining us today. We have a number of questions;

we will be sending you followup in writing. We would appreciate

a timely response. We want to encourage you to expedite your rulemaking in any way, shape or form we can. And, I am just not done

with Sacramento RT.

Ms. DORN. We got that impression, sir.

Mr. OSE. Thank you.

Ms. DORN. Thank you.

Mr. OSE. We will take a 5-minute recess.

[Recess.]

Mr. OSE. All right, we are back. This is the second panel for the

Subcommittee on Energy Policy, Natural Resource and Regulatory

Affairs hearing on the subject of ‘‘How Can We Maximize Private

Sector Participation in Transportation?’’

Our second panel is composed of five individuals. They are Dan

Tangherlini, who is the director of the District of Columbia Department of Transportation here in Washington; Mr. Tom Mack, the

chairman of Tourmobile Sightseeing here in Washington, DC; Mr.

Jerome Cooper, chairman of the Transit Alliance and president of

Jamaica Buses, Inc., in Jamaica, NY; Mr. David Smith, director of

marketing and sales for Oleta Coach Lines, Inc. from Williamsburg,

VA; and Mr. Steven Diaz, esq., former Chief Counsel for the Federal Transit Administration at the Department of Transportation.

Gentlemen, as you saw in our first panel, we swear in all our

witnesses. That is the standard of course; it is not judgmental. If

you would all rise and raise your right hands.

[Witnesses sworn.]

Mr. OSE. Let the record show that all five witnesses answered in

the affirmative.

Now, as with our first panel, we have received your written testimony. In front of you I believe this monitor is working; that monitor is not. They are all working now. I stand corrected. They are

both working. There are three little rectangles on that larger black

box; there is green, yellow, and red. Green means you are in your

5 minute period; when it switches to yellow, it means you have a

minute left; and, when it switches to red we put you on a long bus

ride to pick your destination.

Your testimony has all been received; we have looked at it. We

are very appreciative of your preparing it and submitting it. We

are going to recognize each of you in turn to summarize your testimony in 5 minutes. Every got it?

Mr. Tangherlini, thank you for joining us today. You are recognized for 5 minutes.

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STATEMENTS OF DAN TANGHERLINI, DIRECTOR, D.C. DEPARTMENT OF TRANSPORTATION, WASHINGTON, DC; TOM MACK,

CHAIRMAN, TOURMOBILE SIGHTSEEING, WASHINGTON, DC;

JEROME COOPER, CHAIRMAN, TRANSIT ALLIANCE AND

PRESIDENT, JAMAICA BUSES, INC., JAMAICA, NY; DAVID N.

SMITH, DIRECTOR OF MARKETING AND SALES, OLETA

COACH LINES, INC., WILLIAMSBURG, VA; AND STEVEN DIAZ,

ESQ., FORMER CHIEF COUNSEL, FEDERAL TRANSIT ADMINISTRATION, DEPARTMENT OF TRANSPORTATION, LAW OFFICE OF STEVEN A. DIAZ

Mr. TANGHERLINI. Thank you for having me, Mr. Chairman.

Chairman Ose, members of the committee and staff, my name is

Dan Tangherlini, and I am the director of the District of Columbia

Department of Transportation. Thank you for inviting me here

today to testify on the topic of private sector participation in transportation, especially regarding the proposed Downtown Circulator.

I particularly look forward to the opportunity to clear up some misconceptions about the Circulator proposal.

First, I would like to give you some context about the DDOT and

the amount of work that we do with the Federal Government and

with the private sector. In fiscal year 2003, the last year in which

we have closed the books, DDOT spent $42 million of local funds

and $200 million in Federal funds on road, bridge, highway construction and maintenance. Of that sum, more than 90 percent was

contracted out to the private sector. Since Mayor Anthony A. Williams took office in 1999, the amount of contracting to the private

sector has increased from $110 million to $219 million, or more

than 100 percent increase.

The Williams administration and my Department are committed

to ensuring that the District’s citizens get the most value out of

each transportation dollar spent on their behalf, and we are very

proud of our record.

The idea for a Downtown Circulator was developed by the National Capital Planning Commission as part of its legacy plan, a

long-range vision plan for the Nation’s capital completed in 1997.

This Federal agency is tasked with ensuring the Nation’s capital’s

workers, residents, and visitors can get around the city as quickly

and easily as possible. They saw on the horizon a need for much

expanded public transportation options in order to link popular

destinations for an ever-growing population of downtown core.

Everything foreseen by the NCPC has been confirmed by local

studies over the last decade. Downtown D.C. has added approximately 9.5 million square feet of office space since 1998. There are

3,000 new residents living in or near downtown, and another 3,000

new residents will be moving in next year. During this same period, we have added an enormous amount of cultural and entertainment space, and are attracting millions of more visitors than

we were just 8 years ago.

In short, the District has added a city the size of downtown Denver in the last decade, while we have eliminated 70 percent of all

short-term surface parking, reduced available roadways through security closures, and we have not added a single bus route to help

people move about downtown. The city’s transit service has tradiVerDate 11-MAY-2000 11:01 Mar 10, 2005 Jkt 000000 PO 00000 Frm 00054 Fmt 6633 Sfmt 6633 D:\DOCS\98605.TXT HGOVREF1 PsN: HGOVREF1
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tionally focused on bringing people from surrounding communities

and neighborhoods into and out of downtown.

Last month, the annual Texas Transportation Institute study of

congestion placed Greater Washington with the third worst congestion in the country, after Los Angeles and San Francisco, and we

only missed that by 1.4 minutes of delay per person, so we are

catching up. Many of the people clogging suburban roadways are

coming into the District and may be encouraged to take public

transportation if we do a better job of providing surface links.

Finally, the National Park Service provided us with invaluable

data earlier this year on the unmet demand for transportation by

visitors to downtown D.C. The Park Service survey found that fully

71 percent of visitors, representing millions of people per year,

would like to use an inexpensive, non-interpretive bus service if

one were available.

In late 1998, the Downtown D.C. Business Improvement District,

a group of downtown property owners, developers, and business

leaders, took the NCPC idea and began to develop it. The idea for

a Downtown Circulator was widely embraced by downtown business interests, a number of Federal agencies, including GSA and

the NCPC, the Mayor and the D.C. Council.

The plans for the Circulator have evolved over the years. The

planning group attempted to be as creative as possible to solve as

many problems of congestion, access, and mobility as possible. As

ideas were tested and discussed, we were able to develop a realistic

plan of action that includes two phases of service: one that could

be developed independently by DDOT with its existing partners

and a second phase that could be developed in conjunction with the

private sector and the National Park Service. In fact, I will add one

reason we divided the project into two phases was to avoid in any

way encroaching on the Park Service’s existing single interpretive

service concessionaire.

The Downtown Circulator is designed to be low-cost, very frequent, and faster than other public transportation due to less frequent stops. It is a form of bus rapid transit, if you will, and will

provide no interpretive service.

Phase I of the Circulator, which is scheduled to begin in the

spring of 2005, has a route to link Union Station with Georgetown

via the new residential neighborhood growing along the Convention

Center-Mass Avenue corridor, as well as tying the Convention Center to our emerging Anacostia development area. We also hope to

extend it perhaps to the new baseball stadium.

It was always our desire to bid out Phase I, and until just last

week this was not an available option. We have since learned that

there may be a possibility to bid this phase to the private sector.

If the National Park Service were to allow some opening of the existing concession, it would be our view that a variety of services

should be offered through bidding with the private sector.

What may really be at issue is Phase II, a service that could be

available to 92 percent of mall visitors who do not use current interpretive service, and the more than 70 percent of mall visitors

who would like low-cost, non-interpretive transit service. Nothing

can happen in Phase II without Federal involvement through the

Park Service. If NPS chooses to change and/or compete the existing

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more than 30 year old arrangement, we believe a private sector-operated non-interpretive service should be offered.

In conclusion, the District Government and its public-private

partners have worked hard with the private sector to include them

in every project we have done over the last several years. Despite

the fact that there is absolutely no FTA funding being used to support Phase I of the Circulator, we are committed to work with the

private sector operators to the extent we are able.

I very much appreciate the opportunity to appear before you

today and am available for any questions you have.

[The prepared statement of Mr. Tangherlini follows:]

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Mr. OSE. Thank you, Mr. Tangherlini.

Our next witness is Mr. Tom Mack, who is the chairman of the

Tourmobile Sightseeing enterprise that is so ubiquitous here in

Washington.

Sir, welcome. Thank you for joining us. You are recognized for

5 minutes.

Mr. MACK. Thank you, Mr. Chairman and members of the committee, for extending us an invitation to appear before you. I regret

that the Tourmobile is so hazardous to you; we will talk to them

about that.

In 1967, the National Park Service issued a public prospectus

seeking concessions to operate a mass transportation system on the

Federal mall. The Federal mall is a fragile place; the ecology is

fragile and there are too many cars. The atmosphere is causing

damage to the plant life and others there. The Park Service decided

that it needed a mass transportation somewhat consistent with the

1901 McMillen plan, which called for a pedestrian mall and a mass

transportation system. That ideal has been sought for a long time.

We don’t know if that will ever be achieved, but it is certainly important.

We participated in the competitive bid circumstance, and, at that

time, our organization, Universal Interpretive Shuttle Corp. I, bid

and we were issued a contract whereupon we were sued by numerous who lost, and we spent a number of years in court. In 1968,

the Supreme Court issued a decision favorable to the Secretary of

the Interior, the Director of the National Park Service assuring

that the Secretary of the Interior had absolute control over the contract which was issued, and in March 1969 the service began.

We extended our service to Arlington National Cemetery in 1970

at the request of the Department of the Army, and we have been

there 32 years. I acquired Tourmobile in 1981 and have owned it

since that time, and we continue to receive high marks from the

National Park Service in terms of evaluations, and they continue

to do so even under difficult circumstances.

The first time I became aware of some appearance on the national mall related to transportation services was something called

a Museum Bus. The Museum Bus, the intention of that organization, as I understand it, was to take people off the Federal mall

and take them on their buses to places of culture, museums, art

places throughout the city, and perhaps other locations. That operation lasted for a significant amount of time, I thought, for an experiment. The experiment proved an absolute failure and it was

discontinued.

I have never spoken with anyone from BID, an organization I

first became aware of when—Downtown Improvement District

BID—I received a telephone call from a Washington Post writer,

who asked me if I was aware of the Circulator program; I told him

no. Will you send me the information? He said he couldn’t, but read

The Washington Post tomorrow. I did, whereupon I learned that

BID, in concert with others, but principally BID, because they were

the spokesperson for this and the potential operator, I believe, had

expressed an opinion which was stated in the Post that they intended to begin an operation on the national mall similar to mine;

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asked me my opinion about that. I told them it would destroy my

business.

I still haven’t spoken with anyone from BID, and I thought it

was quite arrogant on their part to make such a statement without

even conferring with me or letting me know what they intended to

do, and asking me if I had any ideas about it or wanted to participate in it. I don’t, but perhaps that opportunity will prevail.

The information that I received on BID and that proposed

Circulator operation is fraught with Federal funding. They have

stated on numerous occasions that the foundation of their operation

will be dependent upon tourists. Unequivocally, that has been stated numerous times. I believe that is a serious mistake and we oppose it.

[The prepared statement of Mr. Mack follows:]

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Mr. OSE. I thank the gentleman for his time and his testimony.

Our next witness, Mr. Jerome Cooper, who is the chairman of the

Transit Alliance and president of Jamaica Buses, Inc., in Jamaica,

NY.

Sir, welcome. Pleased to have you join us. You are recognized for

5 minutes.

Mr. COOPER. Thank you, Mr. Chairman. My name is Jerry Cooper. I am the chairman and chief executive officer of Green Bus

Lines, Triboro Coach, Jamaica Buses, and Command Bus Companies, who represent the Transit Alliance. We are private operators

of bus mass transportation services in Queens, Brooklyn, and Manhattan in New York. Collectively, these companies employ 2,000

people, providing daily transportation to about 400,000 riders.

I have worked for these companies for 45 years, and, for the past

7 years, I have been the CEO and chairman of the Board. Although

these titles and the company names may sound like institutional

corporations, they are not. The four companies and their predecessors are, to my knowledge, the oldest operating mass transportation organizations in the United States. We invented mass transportation in the New York area. These businesses were built by

hard-working people and entrepreneurs, not government agencies.

Shortly after World War I, a group of veterans found employment in our transit system. Eventually, these veterans became the

bus drivers and mechanics who created the modern corporate entities which today are the principal assets for about 315 shareholders

who are the decedents of these veterans. For over 100 years private

effort and capital have continuously made efficient and convenient

transportation an everyday expectation for our riders.

Sadly, the city of New York, a recipient of enormous amounts of

Federal funding for transit, is trying to put these companies out of

business and preparing unnecessarily to lose hundreds of millions

of public dollars in the process.

Since the Federal Government began public transit assistance,

private transit companies have been swallowed up by local government, but not Green Bus, Triboro, Jamaica, or Command. We are

living proof that private enterprise works in transit.

Unfortunately, New York City, the bastion of capitalism, has embarked on a program to push these private companies out of transit. Public officials inaccurately railed that these companies do not

maintain buses adequately or care about the safety or comfort of

the transit-riding public. Yet, the city refuses to spend more than

$150 million in federally appropriated funds to retire old, obsolete,

and exhausted equipment.

Of the 709 buses in the combined fleets, on average 80 are out

of service on a daily basis because of the need for repair or are Told

that is not financially practical to repair them. Of the 709 buses,

98 are not wheelchair equipped and are inaccessible to persons

with disabilities. The average age of 268 buses of the combined

fleet is 18 years or older. Many parts cannot be obtained and must

be cannibalized from other equipment. These facts should be compared to the Federal standard of a 12-year useful life for transit

buses.

We operate under the cardinal rule that not a bus leaves the

depot unless we deem it to be safe and reliable. The shortage of

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equipment results in overcrowding and short tempers. The public

deserves better.

The city is sitting on $150 million which has been appropriated

and is available to replace the city’s outdated fleet, but the city will

not apply for these funds and replace the buses. They won’t apply

for the funds because, if they do, they must buy buses to replace

the fleet we operate for them, which they don’t want to do so they

can use the artificial safety convenience and comfort crisis they

have created to prove what a bad job the private sector does in

maintaining and operating the buses. They will not apply for the

funds because the city has previously arranged to transfer the work

to the Metropolitan Transit Authority.

Although the city administration proclaimed that the city would save $150 million in operating costs once the takeover occurred, the

most recent budget submitted to the City Council calls for payment

to the MTA of $161 million, which is approximately $11 million

more than present costs for delivery of the same service. The city’s

estimate of the cost of the takeover does not include the value of

our realty or our intangible property rights, which has been publicly placed at hundreds of millions of dollars. It is also no secret

that, faced with large deficit, the MTA plans to cut service. To me,

this takeover is wasteful, ill advised, and badly planned.

In the limited time allowed, I can only give the outline of a very

counterproductive situation. I have submitted several supplemental

documents for your consideration, and I thank the subcommittee

for the opportunity of testifying here today.

[The prepared statement of Mr. Cooper follows:]

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Mr. OSE. Thank you, Mr. Cooper.

Our next witness is Mr. Davis Smith, who is the director of marketing and sales of Oleta Coach Lines in Williamsburg, VA. He is

joined today in the audience by his father, Howard Smith.

Sir, thank you for joining us. You are recognized for 5 minutes.

Mr. SMITH. May God bless you, Mr. Chairman, and thank you.

My name, again, is David Smith, and I am the director of marketing and sales for Oleta Coach Lines. My parents, Howard Smith,

who is present here, and Tawana Smith founded Oleta Coach Lines

in 1986 and our family has been serving the communities of Williamsburg, James City County, and York County ever since.

As you have probably had a chance to read, my father and I discussed in 2000 with the community the need of connecting Virginia’s historical triangle via a motorcoach service. In 2001 our

planning began, and by 2002 Oleta began regular motorcoach tours

to Jamestown and Yorktown from central pickup locations in Williamsburg. We then saw the need for a mass transit service to

Jamestown and Yorktown for tourists, employees, or anyone who

needed just transportation to any of the four Jamestown or Yorktown sites. We started a trial service in January 2003, which led

up to us having a familiarization tour with local and State level officials, including the local transit agency, in March 2003.

Oleta was applauded by all who attended, so, with help from the

local press, our transit service officially began. Much to our surprise, in March 2004, it was publicized that Williamsburg Area

Transport, a department of James City County, was planning to

partner with Colonial Williamsburg Foundation and the National

Park Service to start a pilot transportation program free or charge

for tourists interested in visiting either Jamestown or Yorktown.

Operating expenses for WAT, Williamsburg Area Transport,

came through an enhancement grant from the U.S. Department of

the Interior totaling over $44,000. WAT’s federally funded buses

would operate this service from Memorial Day to Labor Day weekends, which is Williamsburg’s peak tourism season.

Immediately from the start of this service our ridership drastically decreased. On June 7th, we filed an official complaint with

FTA’s regional office in Pennsylvania. After close to 2 months from

filing our complaint, and just a few weeks before the service was

over, FTA ruled that this service provided by WAT was in fact

mass transit. FTA failed to acknowledge DOT and FTA statutes

and regulations in that, No. 1, WAT was using DOT and FTA-funded vehicles; No. 2, the local private bus operators were not consulted with in this project; No. 3, the participation of the private

enterprise was zero.

WAT, in one instance, stated in an e-mail, which we had received

through the Freedom of Information Act, that Oleta, a private

charter company, apparently has recently voiced concerns that they

were not involved by NPS, National Park Service. This statement

was made on March 2nd, close to 2 months before this service

began.

FTA completely ignored two major facts: that, No. 1, Oleta was

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mission ticket in order to ride WAT’s bus, which would make this

a closed door service and not open to the general public.

The first full week after this pilot program was over, I am happy

to report that our ridership levels have increased dramatically.

Upon preparing for this hearing, on September 28th, we learned

that yet another transit organization by the name of Hampton

Roads Transit had copied a passenger commuter service that Oleta

had been offering since 2001. This service that Oleta was given by

the Department of Motor Vehicles a Certificate of Public Convenience and Necessity connected the cities of Williamsburg, Newport

News, and Hampton to relieve traffic congestions. Upon research

we learned that, on September 7th, HRT began the same service

through a grant received from the State totaling over $848,000.

This would cover their operating expense and was also the purchase of three new coaches.

Doing further research on the situations that have been coming

up with the transit organizations and the private sector, I came

across a document on the Jamestown 2007 Web site. Transportation information had been collected from both transit agencies

and charter bus operators for the purpose of a bus census in and

around Williamsburg. Out of the 18 private providers found in surrounding cities, as well as in Williamsburg, Oleta was not listed.

We have come to the conclusion that WAT and HRT, with support of the FTA, is trying to put in particular my family’s small

company out of business. We pray that this subcommittee will see

to it that something be done to make sure that the private sector

receives maximum participation in all projects and programs related to transportation.

Thank you for your time.

[The prepared statement of Mr. Smith follows:]

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Mr. OSE. I thank the gentleman for his attendance and testimony.

Our final witness in the second panel is Mr Steven Diaz, esq. He

is former Chief Counsel for the Federal Transit Administration at

the Department of Transportation, now in private practice.

Sir, thank you for joining us. You are recognized for 5 minutes.

Mr. DIAZ. Thank you, Mr. Chairman. I am honored to be here.

My name is Steven Diaz. I am an attorney based here in Washington. I have spent the past 30 years practicing mass transportation

law, half the time in public practice, half the time in private practice. My testimony today represents my own personal opinion of

long standing and is addressed to the issue of private sector participation in mass transportation. I will address specifically the rescission by the Clinton administration of the private enterprise policy of the FTA, which was adopted in the Reagan administration.

I have also submitted supplemental documents in support of my

testimony.

As the single largest source of mass transportation investment,

the Federal Government plays a central role in encouraging and facilitating policies used around the country to implement mass

transportation programs. From the beginning of the mass transit

program, Congress has demanded that federally appropriated funds

be used to increase the mass transportation available to our citizens, not merely to replace private ownership with public ownership and not to duplicate or undermine existing transportation offered by private investment.

Diverging transit investment is a matter of getting and keeping

America moving, a practical matter, not a matter of ideology or

partisan purpose. Both great Republicans and great Democrats

have forged a policy of leveraging public with private equity in

transit.

As the supplemental materials I have supplied demonstrate, the

pursuit of the maximum use of private operators in mass transportation long has been supported by such leaders as Senators George

Mitchell, Bob Dole, Mark Hatfield, Bob Graham of Florida, and the

late Daniel Patrick Moynihan of New York. Indeed, David Osborne,

coauthor of Reinventing Government, who was one of the principal

manager advisors to the Clinton administration, specifically

praised the FTA Office of Private Sector Initiatives and the agency’s former private sector guidance as a model for the effective

management of government-assisted transit programs. Mr. Osborne

implored the Federal Transit Administration not to rescind its private sector guidance.

This practical approach is shared by America’s elected State and

local leaders as well. Public sector leaders, such as Mayor Kurt

Schmoke of Baltimore, Mayor Frank Jordan of San Francisco, Governor Lawton Chiles of Florida, and Governor William Donald

Schaeffer of Maryland, among others, specifically endorsed the policy prior to its rescission. The strong positive effect that private

sector-oriented transit programming has traditionally had in minority communities is underscored by the statistics cited by former

Congressman Alan Wheat in the letter he wrote to try to persuade

the FTA not to abandon its private sector guidance. In the same

vein, the Eastern Paralyzed Veterans Association noted its concern

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for the negative impact upon the disability community of a Federal

withdrawal from a strong private sector participation policy.

The Office of Advocacy of the Small Business Administration also

admonished the Department of Transportation not to abandon the

private enterprise guidance. In a scholarly review of the sources for

the guidance and a reasoned analysis of its impact, the Office of

Advocacy spoke with candor and urgency in support of the policy.

Each of these writers had a different emphasis in supporting a

strong Federal policy for the utilization of private sector operators,

but the very wide array of commentators and their various separate reasons are themselves indications of the scope and the importance of the contribution that private operators of mass transportation services have made. There is every reason to encourage such

participation and, indeed, to strengthen this important and vital

element of our national transportation infrastructure, which has always been a mandatory, if not always enforced, feature of the Federal transit program.

You have heard from a number of witnesses who have given a

good overview of why reform is needed. Although it is sometimes

said that the Federal Transit Administration is not a regulatory

agency—I believe that was reiterated this morning when the Administrator said we are a grantmaking agency—it defies common

sense to say that billions of dollars of federally appropriated funds

are simply given out with no concomitant Federal fiduciary obligation. Money is appropriated by Congress for specific purposes, and

upon specific conditions; hence the 18 existing FTA rules already

published in the Code of Federal Regulations.

If Congress is serious about encouraging Federal transit infrastructure investment leveraged with private equity, it must require

an implementing regulation to that effect. This is especially true in

light of the enforcement experience we have had without such a

regulation, as demonstrated particularly by the case studies which

have been presented to the subcommittee. After all, in management in the public sector, just as in management in the private

sector, it is always a question of getting the most bang for the

buck.

Mr. Chairman, I thank the subcommittee for its interest in my

views, and I am pleased to respond to any questions you may have.

[The prepared statement of Mr. Diaz follows:]

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Mr. OSE. I thank the gentleman for his testimony and his presence.

All right, as we indicated in the previous panel, what we do is

we just have questions for you. To the extent that we can get

through all our questions, there will be fewer follow-on questions.

I do want to advise the witnesses that I have a note here that between 11:30 a.m. and noon we are going to have three votes, so we

are going to go as quickly and as expeditiously as we can. That is

not to say that, if you have a point you want to make, we are going

to roll right over you. I want you to make your points. I want you

to answer our questions. If you have a point that occurs to you,

make it. All right?

Now, Mr. Diaz, in particular, I want to start with a question to

you. Your point about the dollars, I was tempted to offer Ms. Dorn

that she could send the money out and I would come over and I

would supervise whether or not the money is used to the purpose

that it is supposed to go. I knew what the answer would be, but

I was going to offer it anyway. What is your view of FTA’s enforcement role to date of the statutory requirements for private sector

participation in mass transit?

Mr. DIAZ. Mr. Chairman, clear signals are sent from Washington

that don’t have to be embodied in rules to make people act. With

the recission of the private enterprise participation policy, a signal

was sent out that was received loud and clear. You have heard

many tales, some in your own district, of what happens when enforcement is sought on regulations since the rescission of the policy,

and I think we can safely say that it is a matter of a lack of perceived intent, and the perception is what is a matter of policy, and

policy is what the board of directors of the United States, or the

Congress, is supposed to set.

Mr. OSE. Long story short, you are saying that FTA is kind of

giving a wink and a nudge to the enforcement provision; they are

just not doing it.

Mr. DIAZ. It is a reasonable conclusion from the histories that

have been presented, yes, sir, it is.

Mr. OSE. Do you think the issuance of a rule consistent with the

other 18 rules, the purpose of which were to bring certainty or clarity to what constitutes private sector participation in mass transit,

do you think that is a good idea or could stand further review?

Mr. DIAZ. I have been an administrative lawyer and a public lawyer for many years, sir, and the only thing I can say to you is that

clarity is the essence of the matter, and I think that the committee

would well consider the degree of clarity that it received in the first

panel with the rules and the intentions of the committee.

The fact of the matter is that the charter regulation, for example,

is not unclear; the standards are very plain. If you can’t look at a

service with common sense and know that it is open to the public

or closed to the public, if you can’t know who is paying for it, if

you can’t know whether it is published in the timetables and the

schedules or not, then I would suggest that some training is in

order.

Mr. OSE. Thank you.

The bells you just heard were calling me to a vote. I have 15

minutes and, with great respect, it is likely to take 40 minutes for

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the two follow-on votes beyond that, so we are going to try and finish this up. This is not to be disrespectful, it is just the press of

time. To the extent that we can’t finish up, we will be sending

questions in writing to you, and we would appreciate timely responses accordingly.

Mr. Tangherlini, on July 23rd of this year, you sent a letter to

Martz Gold Line about the proposed Circulator in D.C. stating,

‘‘The Circulator is an appropriate public transit service’’ and then

further ‘‘After gaining cost and operating experience in Phase I, it

is the partner group’s current intention to invite competitive bidding on Phase II services from private contractors.’’ Now, you have

changed that a little bit in your testimony today regarding Phase

I in particular. My question is, in the context of the Business Improvement District’s Circulator proposal, will that require Federal

funding to implement?

Mr. TANGHERLINI. A couple of things. The point about changing

it, we have changed it because we were interested in working with

the private sector providers in the city to see what other options

we could explore. Our interest is in providing high-quality service

at the lowest possible cost, and we think that perhaps the private

sector could be part of that. We were under the impression that the

buses funded from money that had been won through a lawsuit,

something called the D.C. Rider’s Trust, could only be operated by

WMATA. We have learned since that may not be the case, and we

are fully interested in exploring a proposal that might allow for private sector operation.

Would it require some subsidy? Yes, it would, but we propose a

level of subsidy, we think, which is unique in public transportation

finance that would include private, local, and Federal subsidy

through the District of Columbia Appropriations Bill, not through

the Federal Transit Administration. No Federal Transit Administration money would be used to pay for the buses; no Federal Transit Administration money would be used to operate the buses.

Mr. OSE. So, you get around the prohibition on, if you will, the

squeeze-out effect by using direct appropriations as opposed to FTA

grants?

Mr. TANGHERLINI. Again, we don’t think there is any squeeze-out

effect. I would like someone to show me what private sector operator is operating on K Street providing frequent service on K Street.

This is transit service from across the town, from the Convention

Center to the waterfront.

We also believe that this is just the beginning of fair recompense

for the Federal Government’s closure of such streets as Pennsylvania Avenue and E Street, separating the east and west portions

of the city, and continued closures up here on Independence and

Constitution, or at least checkpoints that have made mobility in

the city very hard due to the security closures.

Mr. OSE. One of the concerns I have has to do with the

Tourmobile services, and, Mr. Mack, I want to followup on this

with you. Mr. Tangherlini indicates that there is no evidence there

will be an adverse impact to your enterprise. You have 30-odd

years of experience here. What is your sense of that?

Mr. MACK. It is untrue.

Mr. OSE. OK.

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Mr. MACK. As I told the reporter of The Washington Post which

quoted D.C. BID and others indicated that they wished to implement the service on the national mall, and they were intending to

do it my first understanding was in 2001 and later Circulator reports, as Mr. Tangherlini indicate they change from time to time,

the next proposed takeover in effect was in 2003. I guess they will

change that to another time since it hasn’t happened so far.

But, there is no question about it. If a federally funded entity imposes itself on the Federal mall, where our operation is, our operation will not be able to survive. I think that quoting the letter

that you referred to, I believe in one of the paragraphs it indicates

that the Circulator expects to impose its second phase after the

Park Service issues its report, and that solicitation of private operators may be appropriate then.

Mr. Tangherlini probably understands that he, BID, nor anyone

else other than Secretary of the Interior, has an authority to put

any kind of transportation on the national mall. It appears from

this letter that you referred to to Martz that they are assuming

that this is a done deal. They are proceeding and in numerous

studies that this organization has commissioned, every one that I

have seen or heard of indicates that there is a tremendous amount

of money needed to fund it and that it can’t operate otherwise.

If we are talking about 90 buses ultimately when the service is

completed, with facilities to maintain those buses, 55 passenger

full-size buses operating on clogged streets that are already dangerously overloaded, I believe, this proposal makes no sense, and

it will endanger the operations of my company and other companies also. And, as a matter of fact, I think one of the studies commissioned by this organization indicates that it will have a predatory effect upon the existing transit system in order to fill the seats

that they plan to purchase.

Mr. OSE. Before we leave this issue, I just want you to understand on both sides of this, without being judgmental, I am watching this and I will continue to watch this, and I will watch it until

it is done or I am done, one or the other, whichever comes first.

Mr. Cooper and Mr. Smith, if I may, you are both private operators. I know of no testimony to the effect that your service isn’t

adequate or that it is not meeting the needs of your customers. Can

you estimate the adverse economic effect to your company if the

DOT refuses to enforce on public entities the non-compete clause

portion of its grants? In other words, if they take the Federal

money then compete against you, what position does that leave you

in with your respective enterprises?

Mr. COOPER. If by what you mean is an MTA takeover of the

lines, I assume that is what you are referring to?

Mr. OSE. In whole or in part?

Mr. COOPER. Well, if they take over the lines or partly take over

the lines and there is no increased funding to us or there aren’t

any new buses purchased, we can’t put those fleets on the road. In

other words, we have certain peak pullouts that have to be met.

When you have equipment that is 18 and 20 years old, where the

bulkheads and the engines and the transmissions need to be overhauled immediately, and you have to put those against the wall,

it does two things: first of all, we have a certain pullout we must

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meet and certain other requirements we have to meet. If we can’t

meet those, then, in a way, our incentive payments, which we get

from the city, is deducted. In addition, the cost to maintain 20-

year-old buses that have hundreds of thousands of miles on them,

which are falling apart literally, it is impossible to maintain.

Mr. OSE. And, that would be the case of using MTA’s existing

rolling stock? That is the situation they face, not that you face.

Mr. COOPER. I didn’t hear the question.

Mr. OSE. Your point about the cost to maintain very heavily used

equipment, that is the situation MTA faces, not the situation you

face?

Mr. COOPER. That is exactly right.

Mr. OSE. OK.

Mr. COOPER. The general manager of Green Bus Lines is here

today, and she has said to me over and over again we can’t get

these buses through the door. And, we won’t put out a bus that is

not safe and reliable. Now, that is as opposed to an MTA that has

unlimited funds. While they don’t operate on our lines, you can see

the difference in the quality of the equipment.

It is just difficult to make headways, it is difficult to make pullouts, it is difficult to do any of the things that are required. And,

we did, for more than 100 years, an apparently satisfactory to the

city, but now for some reason we are an anathema to them and I

don’t know how to answer those questions anymore with them.

Mr. OSE. So, your point is that the city’s competition with you

using Federal funds to keep these assets rolling would put assets

on the street that are less safe, less well maintained, your ridership would go down, etc.?

Mr. COOPER. Well, you have just about paraphrased what we

would say. You can’t compete that way if you don’t have the equipment to put on the road, you just can’t. I submitted a couple of letters from the unions involved here, and these poor people, they

have to get those buses out on the road. It is tough to put a 20-

year-old bus which needs almost a total repair back on the city

streets, but they do it, and we maintain service and we do the best

we can. But we can’t keep this up. It just can’t go on.

I told the City Council that, if the MTA were to take this over

at some future date, they can’t forget us in the interim period; we

need equipment.

Mr. OSE. Mr. Smith, in your enterprise same kind of question:

what is the economic impact of the FTA’s blind eye, if you will, toward the private participation requirements in the law?

Mr. SMITH. I am trying to make sure I understand your question.

As far as monetary?

Mr. OSE. Yes. What would be the impact on your enterprise?

Mr. SMITH. Well, I looked at, once again, with information that

I had received from the Freedom of Information Act that I had requested, they had 102 days worth of service for if we do everything

completely down to the tee with what they were doing as far as 102

days, hours, they incorporated radio costs and everything like that,

they received a grant for $44,600. Our price being a privately

owned and operated company, one which has to pay for insurance,

no insurance breaks, no fuel cost breaks, our price came to $47,000.

So, you can see the closeness of it.

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If we do a per ridership, ours is on a minimum price, just for

kids, is five. On the 3 months that they did it, I think it came out

to approximately 2,000 some riders from beginning to end of this

pilot. So, at a minimum of $5 per kid, that is about what it would

be.

Did that answer your question?

Mr. OSE. Yes.

I apologize. I have to go vote. I am not going to be back in time

for us to have a timely continuation of this discussion. I want to

express my appreciation to each of you for coming here and being

candid with us, because it can’t be easy to be candid in public on

issues involving this amount of money and this important level of

detail. That is the first thing. The second thing is we have questions. I have questions that I have not yet been able to get to ask.

We will be sending them respectively to each of you as the case

suggests, and we would appreciate a timely response to the committee.

I am a strong advocate for business. I happen to think there is

not a single product I know of that can’t be more effectively and

less costly delivered by private enterprise compared to the government delivery. I want to encourage you to stand your ground.

While I may not be here next year, I do know people who will be

here next year who share my passion for keeping government out

of successful private businesses.

Again, I want to thank you all for joining us today, and we will

send you these questions.

And we are adjourned.

[Whereupon, at 12:14 p.m., the subcommittee was adjourned.]

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