[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]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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 ([email protected]). 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.
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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:
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
[[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