[Federal Register Volume 71, Number 20 (Tuesday, January 31, 2006)]
[Proposed Rules]
[Pages 5037-5041]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-868]


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DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

49 CFR Part 604

[Docket No. FTA-2005-22657]
RIN 2132-AA85


Charter Service

AGENCY: Federal Transit Administration (FTA), DOT.

ACTION: Notice of intent to form a negotiated rulemaking advisory 
committee.

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SUMMARY: Pursuant to the direction contained in the Joint Explanatory 
Statement of the Committee of Conference, for section 3023(d), 
Condition on Charter Bus Transportation Service of the Safe, 
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy 
for Users (SAFETEA-LU) of 2005, FTA is establishing a committee to 
develop, through negotiated rulemaking procedures, recommendations for 
improving the regulation regarding prohibition of FTA grant recipients 
from providing charter bus service. The committee will consist of 
persons who represent the interests affected by the proposed rule, 
i.e., charter bus companies, public transportation operators, and other 
interested parties. The purpose of this document is to invite 
interested parties to submit comments on the issues to be discussed and 
the interests and organizations to be considered for representation on 
the committee.

DATES: You should submit your comments or applications for membership 
or nominations for membership on the negotiated rulemaking committee 
early enough to ensure that the Department of Transportation's Docket 
Management System (DMS) receives them not later than March 2, 2006. 
Late-filed comments will be considered to the extent practicable.

ADDRESSES: You should mention the docket number of FTA-2005-22657 in 
your comments or application/nomination for membership and submit them 
in writing to: Docket Management System (DMS), Room PL-401, 400 Seventh 
Street, SW., Washington, DC 20590. Commenters may also submit their 
comments electronically. Instructions for electronic submission may be 
found at the following Web address: http://dms.dot.gov/submit/.
    You may call the Docket at 202-366-9324, and visit it from 10 a.m. 
to 5 p.m., Monday through Friday. You may read the comments received by 
DMS at http://dms.dot.gov.
    Interested persons may view docketed materials on the internet at 
any time. To read docket materials on the internet, take the following 
steps:
    1. Go to the DMS Web page of the Department of Transportation 
(http://dms.dot.gov/).
    2. On that page, click on ``simple search.''
    3. On the next page (http://dms.dot.gov/search/), type in the FTA-
2005-22657, which is shown on the first page of this document.
    4. On the next page, which contains docket summary information for 
the docket you selected, click on the desired comments. You may 
download the comments and the comments are word searchable.

    Please note that even after the comment closing date, we will 
continue to file relevant information in the Docket as it becomes 
available. Further, some people may submit late comments.
    Accordingly, we recommend that you periodically check the Docket 
for new material.

FOR FURTHER INFORMATION CONTACT: Elizabeth S. Martineau, Attorney-
Advisor, Office of the Chief Counsel, Federal Transit Administration, 
202-366-1936 (<a href="/cdn-cgi/l/email-protection#01646d687b60636475692f6c607375686f646074416775602f656e752f666e77"><span class="__cf_email__" data-cfemail="fa9f9693809b989f8e92d4979b888e93949f9b8fba9c8e9bd49e958ed49d958c">[email protected]</span></a>). Her mailing address at 
the Federal Transit Administration is 400 Seventh Street, SW., Room 
9316, Washington, DC 20590.

SUPPLEMENTARY INFORMATION:

I. Background

    Applicants for FTA assistance must formally agree that they will 
not provide charter service using equipment or facilities funded by 
FTA, unless there are no private charter operators willing and able to 
provide the charter service or another exception applies. This 
requirement is in law under 49 U.S.C. 5323(d) and regulations 
implementing the requirement are found in 49 CFR 604. The purpose is to 
ensure that

[[Page 5038]]

Federally subsidized assets, such as buses owned by public 
transportation agencies, do not adversely compete with services 
provided by private purveyors, such as charter transportation services.
    On August 10, 2005, the President signed into law the Safe, 
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy 
for Users (SAFETEA-LU). The bill reauthorizes the Department of 
Transportation's federal transit programs through fiscal year 2009. 
SAFETEA-LU amends 49 U.S.C. 5323(d) Condition on Charter Bus 
Transportation Service. Before SAFETEA-LU, the law stated that if a 
pattern of violations of the charter agreement was found, the Secretary 
of Transportation could bar the recipient from receiving further 
federal assistance. As House committee report language explains, this 
overly broad authority to bar all future assistance was never used, 
whereas ``a more flexible authority to penalize charter violators will 
encourage a more realistic and responsive approach to charter 
enforcement by FTA.'' The new law adds this flexibility by allowing the 
Secretary to ``bar a recipient from receiving federal transit 
assistance in an amount the Secretary considers appropriate.''

II. Statutory Mandate

    Section 3023 of SAFETEA-LU amends 49 U.S.C. 5323(d) to state that 
``the Secretary shall bar a recipient or an operator from receiving 
federal transit assistance in an amount the Secretary considers 
appropriate if the Secretary finds a pattern of violations of the 
[charter bus] agreement.'' Congressional conference report language on 
Section 3023 requests that FTA to ``initiate a negotiated rulemaking 
seeking public comment on the regulations implementing section 5323(d) 
and to consider the issues listed below:
    1. Are there potential limited conditions under which public 
transit agencies can provide community-based charter services directly 
to local governments and private non-profit agencies that would not 
otherwise be served in a cost-effective manner by private operators?
    2. How can the administration and enforcement of charter bus 
provisions be better communicated to the public, including use of 
internet technology?
    3. How can the enforcement of violations of the charter bus 
regulations be improved?
    4. How can the charter complaint and administrative appeals process 
be improved?

III. Negotiated Rulemaking

    As requested by conference report language on Section 3023 of 
SAFETEA-LU, FTA will conduct the negotiated rulemaking. The Negotiated 
Rulemaking Act of 1990, Pub. L. 101-648 (5 U.S.C. 561, et seq.) (NRA) 
establishes a framework for the conduct of a negotiated rulemaking and 
encourages agencies to use negotiated rulemaking to enhance the 
rulemaking process. FTA will form an advisory committee consisting of 
representatives of the affected interests for the purpose of reaching 
consensus, if possible, on the proposed rule.

A. The Concept of Negotiated Rulemaking

    Usually FTA develops a rulemaking proposal using its own staff and 
consultant resources. The concerns of affected parties are made known 
through means such as various informal contacts and advance notices of 
proposed rulemaking published in the Federal Register. After the notice 
of proposed rulemaking is published for comment, affected parties may 
submit arguments and data defining and supporting their positions with 
regard to the issues in the proposed rule. All comments from affected 
parties are directed to the Department's docket (http://dms.dot.gov) 
for the rulemaking. In general, there is limited communication among 
parties representing different interests. As Congress noted in the NRA, 
such regulatory development procedures may ``discourage the affected 
parties from meeting and communicating with each other, and may cause 
parties with different interests to assume conflicting and antagonistic 
positions * * *'' (Sec. 2(2) of Pub. L. 101-648). Congress also stated 
``adversarial rulemaking deprives the affected parties and the public 
of the benefits of face-to-face negotiations and cooperation in 
developing and reaching agreement on a rule. It also deprives them of 
the benefits of shared information, knowledge, expertise, and technical 
abilities possessed by the affected parties.'' (Sec. 2(3) of Pub. L. 
101-648).
    Using negotiated rulemaking to develop the proposed rule is 
fundamentally different. Negotiated rulemaking is a process by which a 
proposed rule is developed by a committee composed of representatives 
of those interests that will be significantly affected by the rule. 
Decisions are made by some form of consensus, which generally requires 
a measure of concurrence among the interests represented.\1\ An agency 
desiring to initiate the process does so by carefully identifying all 
interests potentially affected by the rulemaking under consideration. 
To help in this identification process, the agency publishes a notice, 
such as this one, which identifies a preliminary list of interests and 
requests public comment on that list. Following receipt of the 
comments, the agency establishes an advisory committee representing 
these various interests to negotiate a consensus on the terms of a 
proposed rule. The committee is chartered under the Federal Advisory 
Committee Act (5 U.S.C. App. 2) (FACA). Representation on the committee 
may be ``direct,'' that is, each member represents a specific interest, 
or may be ``indirect,'' that is, through coalitions of parties formed 
for this purpose. The establishing agency has a member of the committee 
representing the Federal Government's own set of interests. A 
facilitator or mediator can assist the negotiated rulemaking advisory 
committee by facilitating the negotiation process. The role of this 
mediator, or facilitator, is to apply proven consensus building 
techniques to the advisory committee setting.
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    \1\ The Negotiated Rulemaking Act defines ``consensus'' as 
``unanimous concurrence among the interests represented on a 
negotiated rulemaking committee * * * unless such committee (A) 
agrees to define such term to mean a general but not unanimous 
concurrence; or (B) agrees upon another specified definition.'' 5 
U.S.C. 562(2).
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    Once a regulatory negotiation advisory committee reaches consensus 
on the provisions of a proposed rule, the agency, consistent with its 
legal obligations, uses this consensus as the basis of its proposed 
rule and publishes it in the Federal Register. This provides the 
required public notice under the Administrative Procedure Act (APA; 5 
U.S.C. 551 et seq.) and allows for a public comment period. Under the 
APA, the public retains the right to comment. FTA anticipates, however, 
that the pre-proposal consensus agreed upon by this committee will 
effectively address virtually all major issues prior to publication of 
a proposed rulemaking.

B. The Federal Transit Administration's Commitment

    In initiating this regulatory negotiation process, FTA plans to 
provide adequate resources to ensure timely and successful completion 
of the process. This includes making the process a priority activity 
for all representatives, components, officials, and personnel of FTA 
who need to be involved in the rulemaking, from the

[[Page 5039]]

time of initiation until such time as a final rule is issued or the 
process is expressly terminated. FTA will provide administrative 
support for the process and will take steps to ensure that the 
negotiated rulemaking committee has adequate resources to complete its 
work in a timely fashion in each case as reasonably determined by FTA. 
These may include the provision or procurement of such support services 
as properly equipped space adequate for public meetings and caucuses; 
logistical support; word processing and distribution of background 
information; the services of a facilitator; and additional research and 
other technical assistance. FTA hired RESOLVE, a private company 
specializing in dispute resolution, to prepare a Convening Report & 
Recommendations. That report is available in the docket for this 
Notice. Please see the ADDRESSES section of this Notice for information 
on how to access the docket.
    To the extent possible, consistent with its legal obligations, FAT 
currently plans to use any consensus arising from the regulatory 
negotiation committee as the basis for the notice of proposed 
rulemaking to be published for public notice and comment.

C. Negotiating Consensus

    As discussed above, the negotiated rulemaking process is 
fundamentally different from the usual process for developing a 
proposed rule. Negotiation allows interested and affected parties to 
discuss possible approaches to various issues rather than simply being 
asked in a regular notice and comment rulemaking proceeding to respond 
to details on a proposal developed and issued by an agency. The 
negotiation process involves the mutual education of the parties by 
each other on the practical concerns about the impact of various 
approaches. Each committee member participates in resolving the 
interests and concerns of other members, rather than leaving it 
exclusively to the agency to bridge different points of view.
    A key principle of negotiated rulemaking is that agreement is by 
consensus, as defined by the committee. Thus, no one interest or group 
of interests shall control the process. Under the NRA as noted above, 
``consensus'' usually means the unanimous concurrence among interests 
represented on a negotiated rulemaking committee, though a different 
definition may be employed in some cases. In addition, experience has 
demonstrated that using a professional mediator to facilitate this 
process will assist all potential parties, including helping to 
identify their interests in the rule and enabling them to reevaluate 
previously stated positions on issues involved in the rulemaking 
effort.

D. Key Issues for Negotiation; Invitation To Comment on Issues To Be 
Addressed

    The Conference Committee report on SAFETEA-LU requested that FTA 
and the negotiated rulemaking committee to consider the issues listed 
below:
    1. Are there potential limited conditions under which public 
transit agencies can provide community-based charter services directly 
to local governments and private non-profit agencies that would not 
otherwise be served in a cost-effective manner by private operators?
    2. How can the administration and enforcement of charter bus 
provisions be better communicated to the public, including use of 
Internet technology?
    3. How can the enforcement of violations of the charter bus 
regulations be improved?
    4. How can the charter complaint and administrative appeals process 
be improved?
    In addition, FTA proposes the following issues for consideration:
    1. A potential new exception for emergency services such as 
evacuation and training for emergencies, including homeland security, 
natural disasters, and other emergencies.
    2. A new process for determining if there are private charter bus 
companies willing and able to provide service that would utilize 
electronic notification and response within 72 hours.
    3. A new exception for transportation of government employees, 
elected officials, and members of the transit industry to examine local 
transit operations, facilities, and public works.
    4. Clarify the definitions of regulatory terms.
    FTA invites comment on the issues the negotiating committee should 
address in developing its recommendations or report.

IV. Procedures and Guidelines for This Regulatory Negotiation

    The following proposed procedures and guidelines will apply to the 
regulatory negotiation process, subject to appropriate changes made as 
a result of comments on this Notice or as determined by FTA to be 
necessary or appropriate during the negotiating process.

A. Notice of Intent To Establish Advisory Committee and Request for 
Comment

    In accordance with the requirements of FACA, an agency of the 
Federal Government cannot establish or utilize a group of people in the 
interest of obtaining consensus advice or recommendations unless that 
group is chartered as a Federal advisory committee. It is the purpose 
of this Notice to indicate FTA's intent to create a Federal advisory 
committee, to identify the issues involved in the rulemaking, to 
identify the interests affected by the rulemaking, to identify 
potential participants who will adequately represent those interests, 
and to ask for comment on the identification of the issues, interests, 
procedures, and participants.

B. Facilitator

    Pursuant to the NRA, a facilitator will be selected to serve as an 
impartial chair of the meetings; assist committee members to conduct 
discussions and negotiations; and manage the keeping of minutes and 
records as required by FACA. The facilitator will chair the 
negotiations, may offer alternative suggestions to committee members to 
help achieve the desired consensus, will help participants define and 
reach consensus, and will determine the feasibility of negotiating 
particular issues.

C. Membership

    The NRA provides that the agency establishing the regulatory 
negotiation advisory committee ``shall limit membership to 25 members, 
unless the agency head determines that a greater number of members is 
necessary for the functioning of the committee or to achieve balanced 
membership.'' The purpose of the limit on membership is to promote 
committee efficiency in deliberating and reaching decisions on 
recommendations. FTA intends to observe that limit.

D. Interests Likely To Be Affected; Representation of Those Interests

    The committee will include a representative from FTA and from the 
interests and organizations listed below. Each representative may also 
name an alternate, who will be encouraged to attend all committee 
meetings and will serve in place of the representative if necessary. 
The FTA representative is the Designated Federal Official (DFO) and 
will participate in the deliberations and activities of the committee 
will the same rights and responsibilities as other committee members. 
The DFO will be authorized to fully represent FTA in the discussions 
and negotiations of the committee.
    FTA has tentatively identified the following interests to 
participate in negotiated rulemaking:


[[Page 5040]]


(1) Federal Government
(2) State government
(3) Municipal and city government associations
(4) Large private charter operators
(5) Small private charter operators
(6) Trade associations
(7) Large public transit operators
(8) Medium public transit operators
(9) Small public transit operators
(10) Rural public transit operators
(11) Consumers with disabilities
(12) Elderly consumers
(13) Non-profit consumers
(14) For profit consumers
(15) Convention bureaus
(16) Representatives of large sporting events

    FTA seeks comment on whether there are additional interests that 
should be represented on the committee. FTA also seeks comment on 
particular organizations and individuals who would appropriately 
represent interests on the committee. Please identify such 
organizations and interests if they exist and explain why they should 
have separate representation on the committee.
    FTA, through its convener and Convening Report and Recommendations, 
has identified specific individuals and entities that it proposes be 
included in the Federal advisory committee, as follows: Shelly Brown, 
Consultant; John D. Corr, Chestnut Ridge Transportation, Inc., Sandra 
Draggoo, Capital Area Transportation Authority; Daniel Duff, American 
Public Transportation Association; Gladys Gillis, Northwest Motorcoach 
Association; Mark Huffer, Kansas City Area Transit Authority; Pat 
Jordan, Coalition for Community Based Transit; Carol Ketchserside, 
Southwest Transit Authority; Alfred LaGasse, Taxicab, Limousine & 
Paratransit Association; Susan Lent, Akin Gump Strauss Hauer & Feld 
LLP; Norm Little, United Motorcoach Association; Dale Marsico, 
Community Transportation Association of America; Richard Ruddell, Fort 
Worth Transportation Authority; Richard P. Schweitzer, Counsel for 
American Bus Association; Carl Sedoryk, Monterey Salinas Transit; Steve 
Tobis, September Winds Motor Coach, Inc.; Michael Waters, Gray Line; 
Becky Weber, BKSH & Associates, and a representative from both FTA and 
the Small Business Association.
    The list of individuals and interests above is not presented as a 
complete or exclusive list from which committee members will be 
selected. Nor does inclusion on the list mean that a party on the list 
has agreed to participate as a member of the committee or as a member 
of a coalition, or will necessarily be invited to serve on the 
committee. In fact, the above list of individuals does not include all 
of the interests that we have identified as being affected by this 
process. Rather, the above lists merely indicates individuals and 
interests that FTA has tentatively identified as representing 
significantly affected interests in the outcome of the proposed rule. 
We strongly encourage individuals and interests to apply for membership 
as provided below in paragraph III.E. Those listed above are required 
to submit an application for membership on the committee.
    FTA is aware that the number of potential participants may exceed 
the number of permissible representatives on the committee. We do not 
believe, nor does the NRA contemplate, that each potentially affected 
group participate directly in the negotiations. What is important is 
that each affected interest be adequately represented. Given the limits 
on the number of representatives who may serve on the advisory 
committee, it is advisable for interested parties to identify and form 
coalitions to represent their interests. These coalitions, to provide 
adequate representation, must agree to support, both financially and 
technically, a member of the committee whom they will choose to 
represent their ``interest.'' Those selected to represent a coalition 
of interests represent the interest of that coalition.
    It is very important to recognize that interested parties who are 
not selected for membership on the committee can make valuable 
contributions to this negotiated rulemaking effort in several ways:
    <bullet> The person or organization could request to be placed on 
the committee mailing list, submitting written comments, as 
appropriate;
    <bullet> Any member of the public could attend the committee 
meetings, caucus with his or her interest's member on the committee, 
and, as provided in FACA, speak to the committee. Time will be set 
aside during each meeting for this purpose, consistent with the 
committee's need for sufficient time to complete its deliberations; or
    <bullet> The person or organization could assist in the work of a 
workgroup that might be established by the committee.
    Informal workgroups are usually established by an advisory 
committee to assist the committee in ``staffing'' various technical 
matters (e.g., researching or preparing summaries of the technical 
literature or comments on particular matters such as economic issues) 
before the committee so as to facilitate committee deliberations. They 
also might assist in estimating costs and drafting regulatory text on 
issues associated with the analysis of the costs and benefits 
addressed, and formulating drafts of the various provisions and their 
justification previously developed by the committee. Given their 
staffing function, workgroups usually consist of participants who have 
expertise or particular interest in the technical matter(s) being 
studied.

E. Applications for Membership

    Each application for membership or nomination to the committee 
should include:
    (1) The name of the applicant or nominee and the interest(s) such 
person would represent;
    (2) Evidence that the applicant or nominee is authorized to 
represent parties related to the interest(s) the person proposes to 
represent; and
    (3) A written commitment that the applicant or nominee would 
participate in good faith.
    Please be aware that each individual or organization affected by a 
final rule need not have its own representative on the committee. 
Rather, each interest must be adequately represented, and the committee 
should be fairly balances.

F. Good Faith Negotiation

    Committee members should be willing to negotiate in good faith and 
have the authority from his or her constituency to do so. The first 
step is to ensure that each member has good communications with his or 
her constituencies. An intra-interest network of communication should 
be established to bring information from the support organization to 
the member at the table, and to take information from the table back to 
the support organization. Second, each organization or coalition 
should, therefore, designate as its representative an official with 
credibility and authority to insure that needed information is provided 
and decisions are made in a timely fashion. Negotiated rulemaking 
efforts can require a very significant contribution of time by the 
appointed members for the duration of the negotiation process. Other 
qualities that are very helpful are negotiating experience and skills, 
and sufficient technical knowledge to participate in substantive 
negotiations.
    Certain concepts are central to negotiating in good faith. One is 
the willingness to bring all issues to the bargaining table in an 
attempt to reach a consensus, instead of keeping key issues in reserve. 
The second is a willingness to promote and protect the ability of the 
committee to conduct its negotiations. Finally, good faith includes a 
willingness to move away from the type of positions usually taken

[[Page 5041]]

in a more traditional rulemaking process, and instead explore openly 
with other parties all ideas that may emerge from the discussions of 
the committee.

G. Notice of Establishment

    After evaluating comments received as a result of this Notice, FTA 
will issue a notice announcing the establishment and composition of the 
committee. After the committee is chartered, the negotiations will 
begin.

H. Administrative Support and Meetings

    Staff support will be provided by FTA. Meetings are currently 
expected to take place in Washington, DC.

I. Notice of Proposed Rulemaking

    The committee's objective will be to prepare a report, consisting 
of its consensus recommendations for the regulatory text of a draft 
notice of proposed rulemaking (NPRM). This report may also include 
suggestions for the NPRM preamble, regulatory evaluation, or other 
supplemental documents. If the committee cannot achieve consensus on 
some aspects of the proposed regulatory text, it will, pursuant to the 
``ground rules'' the committee has established, identify in its report 
those areas of disagreement, and provide explanations for any 
disagreement. FTA will use the information and recommendations from the 
committee report to draft a notice of proposed rulemaking and, as 
appropriate, supporting documents. Committee recommendations and other 
documents produced by the committee will be placed in the rulemaking 
docket.
    In the event that FTA's NPRM differs from the committee's consensus 
recommendations, the preamble to an NPRM addressing the issues that 
were the subject of the negotiations will explain the reasons for the 
decisions to depart from the committee's recommendations.
    Following the issuance of NPRM and comment period, FTA will prepare 
and provide to the committee a comment summary. The committee will then 
be asked to determine whether the committee should reconvene to discuss 
changes to the NPRM based on the comments.

J. Committee Procedures

    Under the general guidance of the facilitator, and subject to legal 
requirements, the committee will establish detailed procedures for the 
meetings. The meetings of the committee will be open to the public. Any 
person attending the committee meetings may address the committee if 
time permits or file statements with the committee.

K. Record of Meetings

    In accordance with FACA requirements, the facilitator will prepare 
summaries of all committee meetings. These summaries will be placed in 
the public docket for this rulemaking.

L. Tentative Schedule

    FTA is seeking to convene the first of the committee's meetings 
starting in April, 2006. The exact date and location of that meeting 
will be announced in our notice of establishment of the advisory 
committee. Meetings are expected to last approximately two days each. 
The negotiation process will proceed according to a schedule of 
specific dates for subsequent meetings that the committee devises at 
its first meeting. We will publish a single notice of the schedule of 
all future meetings in the Federal Register, but will amend the notice 
through subsequent Federal Register notices if it becomes necessary to 
do so. The interval between meetings will be approximately one month.
    The first meeting will commence with an overview of the regulatory 
negotiation process conducted by the facilitator.

    Issued this 24th day of January, 2006, at Washington, DC.
Sandra K. Bushue,
Deputy Administrator, Federal Transit Administration.
[FR Doc. 06-868 Filed 1-30-06; 8:45 am]
BILLING CODE 4910-57-M


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