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###### Department of Transportation

###### Federal Motor Carrier Safety Administration

          - [Docket No. FMCSA-2009-0106]

# AGENCY:

Federal Motor Carrier Safety Administration (FMCSA), Department of Transportation (DOT).

# ACTION:

Notice of petition for declaratory order; request for comments.

# SUMMARY:

FMCSA invites all interested persons to comment on a petition submitted by Fullington Trailways, LLC (Fullington) for a declaratory order requesting that FMCSA find that certain regularly scheduled passenger bus service provided by Fullington is in interstate commerce and not subject to the jurisdiction of the Pennsylvania Public Utilities Commission.

# DATES:

*Initial comments*                         are due on or before August 3, 2009. In order to allow adequate time and notice for commenters to prepare reply comments, initial comments received after the deadline will not be considered.                    

*Reply comments*                         are due on or before September 2, 2009. The Agency will only consider reply comments responding directly to issues raised in the initial round of comments. Commenters may not use reply comments to raise new issues.                    

# ADDRESSES:

You may submit comments identified by the Federal Docket Management System (FDMS) Docket No. FMCSA-2009-0106, by any of the following methods. Do not submit the same comments by more than one method. However, to allow effective public participation before the comment period deadline, the Agency encourages use of the FDMS Web site that is listed first. It will provide the most efficient and timely method of receiving and processing your comments.
      -  Federal eRulemaking Portal:                          Go to                          http://www.regulations.gov.                          Follow the online instructions for submitting comments.                    
      -  Fax:                          1-202-493-2251.                    
      -  Mail:                          U.S. Department of Transportation, Docket Operations (M-30), Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC 20590-0001.                    
      -  Courier or in person:                          West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., e.t., Monday through Friday, except Federal holidays.                    

*Instructions:*                         All submissions must include the Agency name and docket number for this regulatory action. Note that all comments received will be posted without change to                         *http://www.regulations.gov,*                         including any personal information provided. Refer to the Privacy Act heading on                         *http://www.regulations.gov*                         for further information.                    

*Public Participation:*                         The FDMS is available 24 hours each day, 365 days each year. You can find electronic submission and retrieval help and guidelines under the “help” section of the Web site. For confirmation that FMCSA received your comments, please include a self-addressed, stamped envelope or postcard, or print the acknowledgement page that appears after submitting comments on-line. Copies or abstracts of all documents referenced in this notice are in the Docket No. FMCSA-2009-0106. To read background documents or comments received in the docket, go to                         *http://www.regulations.gov*                         at any time, or visit Room W12-140, 1200 New Jersey Avenue, SE., Washington, DC, between 9 a.m. and 5 p.m., e.t., Monday through Friday, except Federal holidays. All comments received before the close of business on the comment closing dates indicated above will be considered and will be available for examination in the docket at the above address. Initial comments received after the initial comment closing date will not be considered.                    

# FOR FURTHER INFORMATION CONTACT:

Genevieve D. Sapir, (202) 366-7056, Office of the Chief Counsel (MC-CCR), Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue, SE., Washington, DC 20590.

# SUPPLEMENTARY INFORMATION:

Fullington Trailways, LLC currently provides passenger bus service along various routes in Pennsylvania. Along two such routes, Lewistown to Harrisburg and State College to Harrisburg, Fullington held intrastate authority from the Pennsylvania Public Utilities Commission (PPUC) and then subsequently obtained interstate authority along these same routes from the FMCSA. Fullington seeks to discontinue early morning service on the State College/Harrisburg route and raise rates for early morning service on the Lewistown/Harrisburg route. A regular passenger on Fullington's routes filed a complaint with the PPUC opposing these changes.

The PPUC concluded that, to the extent the State College/Harrisburg and Lewistown/Harrisburg routes were properly characterized as operations in interstate commerce under Federal law, it did not have jurisdiction over the complaint. However, the PPUC further concluded that it lacked jurisdiction to make this determination and that FMCSA had primary jurisdiction to determine whether the routes at issue were in fact interstate.

The PPUC instructed Fullington to seek a determination from FMCSA on the following three issues with respect to its State College/Harrisburg and Lewistown/Harrisburg routes: (1) Whether its operations are within the scope of its Federal operating authority; (2) whether PPUC regulation as to rates and schedules is preempted; and (3) whether Fullington's operations qualify as a “special operation” or “intrastate commuter bus operation” under 49 U.S.C. 13902.

On September 17, 2008, Fullington submitted a Petition for Declaratory Order to FMCSA seeking a determination on these issues. This Petition is available for review in the docket for this proceeding. Before making its determination on the matters raised in the Petition, the Agency invites public comment on these issues.

Issued on May 28, 2009.

Rose A. McMurray,

Acting Deputy Administrator.

[FR Doc. E9-13043 Filed 6-3-09; 8:45 am]

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