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###### Department of Transportation

###### Federal Transit Administration

          - 49 CFR Part 604
          - [Docket No. FTA-2005-22657]
          - RIN 2132-AA85

# AGENCY:

Federal Transit Administration (FTA), DOT.

# ACTION:

Notice of intent to form a negotiated rulemaking advisory committee.

# 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 (                        *elizabeth.martineau@fta.dot.gov*). 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                           ( print 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.                

                    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                           ( print 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:
      ( print 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:
    - The person or organization could request to be placed on the committee mailing list, submitting written comments, as appropriate;
    - 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
    - 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                           ( print 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.

# Footnotes

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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[FR Doc. 06-868  Filed 1-30-06; 8:45 am]

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