[Federal Register Volume 75, Number 17 (Wednesday, January 27, 2010)]
[Notices]
[Pages 4443-4447]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-1645]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2009-0106]


Petition for Declaratory Order by Fullington Trailways, LLC

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

ACTION: Declaratory order.

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SUMMARY: In accordance with an order from the Pennsylvania Public 
Utilities Commission (PPUC), Fullington Trailways, LLC (Fullington) 
filed a petition for a declaratory order (Petition) seeking a 
determination from FMCSA on the following three issues with respect to 
its State College/Harrisburg and Lewistown/Harrisburg passenger bus 
routes: (1) Whether Fullington's operations are within the scope of its 
Federal operating authority; (2) whether PPUC regulation as to rates 
and schedules is preempted; and (3) whether its operations qualify as a 
``special operation'' under 49 U.S.C. 13902 or ``intrastate commuter 
bus operation'' under 49 U.S.C. 14501. The Agency grants Fullington's 
petition, finding that the passenger bus service in question is within 
the scope of Fullington's Federal operating authority, that PPUC 
regulation as to rates and schedules is preempted and that Fullington's 
operations do not qualify as a ``special operation'' or an ``intrastate 
commuter bus operation.''

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

SUPPLEMENTARY INFORMATION:

Background

    Fullington 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). Fullington 
obtained Federal authority to provide service along the Lewistown--
Harrisburg route in 1983 and subsequently obtained Federal authority 
for the State College--Lewistown--Harrisburg route in December 2006. In 
January 2007, Fullington announced plans to discontinue early morning 
service on the State College/Harrisburg route and raise rates for early 
morning service on the Lewistown--Harrisburg route. Two regular 
passengers on Fullington's routes filed complaints with the PPUC 
opposing these changes. The PPUC entered an emergency order on January 
31, 2007, requiring Fullington to continue to provide service on the 
early morning State College--Harrisburg run. In order to comply with 
this order, and in response to low passenger demand for this service, 
Fullington consolidated its routes to a single State College--
Lewiston--Harrisburg route with multiple morning and afternoon runs.
    An initial order of an administrative law judge, subsequently 
adopted by the PPUC on June 24, 2008, 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 determine 
whether the operations were properly characterized as in interstate 
commerce and that FMCSA had primary jurisdiction to make the 
determination whether Fullington's operations were within the scope of 
the carrier's Federal operating authority. 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 Fullington's operations are within the 
scope of its Federal operating authority; (2) whether PPUC regulation 
over rates and schedules is preempted; and (3) whether the operations 
in question qualify as a ``special operation'' or ``intrastate commuter 
bus operation'' under 49 U.S.C. 13902.
    On September 17, 2008, Fullington submitted the Petition for 
Declaratory Order to FMCSA seeking a determination on these issues. 
Before making its determination on the matters raised in the Petition, 
the Agency invited the public to submit initial and reply comments. [74 
FR 26917] We address those comments below.

Analysis and Conclusions

    Agencies have the discretion to issue declaratory orders to 
terminate controversies or resolve uncertainties. 5 U.S.C. 554(e). 
Prior to its termination, the Interstate Commerce Commission (ICC) 
regularly exercised this discretionary authority to resolve disputes. 
However, in transferring several ICC functions to the Department of 
Transportation (DOT) (first to the Federal Highway Administration 
(FHWA) and then to FMCSA), Congress envisioned that DOT would generally 
not become involved in resolving disputes between private parties. To 
effectuate this congressional intent, FHWA stated that although it 
reserved the right to issue declaratory orders to resolve controversies 
between third parties in appropriate circumstances, it would do so only 
in cases having industry-wide significance that raise issues not 
adequately addressed by existing legal precedent. Petition for 
Declaratory Order Regarding Application of Federal Motor Carrier Truth 
In-Leasing Regulations, 63 FR 31827 (Jun. 10, 1998).
    In general, FMCSA does not consider the question of whether a 
carrier is operating in interstate commerce to be the type of 
controversy rising to the level of industry-wide significance or for 
which there is not existing legal precedent. However, in its petition, 
Fullington raises an issue--whether the service in question constitutes 
a commuter service or special operations--for which there is little 
recent legal precedent and of which resolution may have industry-wide 
significance.

Jurisdiction

    The PPUC, in its order directing Fullington to petition FMCSA for a 
declaratory order, correctly concluded that it lacked jurisdiction to 
determine whether Fullington's operations were within the scope of its 
interstate operating authority. Goertz v. Fullington

[[Page 4444]]

Trailways, LLC, Opinion and Order, PPUC Case No. P-00072246 (Jun. 24, 
2008), p. 10. By order dated December 12, 2006, FMCSA granted 
Fullington authority to engage in transportation as an interstate 
common carrier of passengers over certain regular routes. FMCSA has 
primary jurisdiction to interpret the scope of operations that may 
lawfully be conducted under this authority. See Funbus Systems, Inc. v. 
C.P.U.C., 801 F.2d 1120, 1129 (9th Cir.1986) (interpreting authority of 
FMCSA's predecessor). Conversely, State regulatory authorities may not 
assume power to interpret the boundaries of federally-issued 
certificates or to impose sanctions based upon operations that are 
alleged to be authorized by a Federal certificate. See Service Storage 
& Transfer Co. v. Virginia, 359 U.S. 171, 177-79 (1959) (interpreting 
authority of FMCSA's predecessor).

Fullington's Interstate Operations

    No party disputes that Fullington holds the necessary 
authorizations under 49 U.S.C. 3902(a) to provide interstate service 
along the State College--Lewistown--Harrisburg route. The first 
inquiry, therefore, is whether the intrastate service described in the 
PPUC proceeding is sufficiently related to interstate transportation 
provided over this route to come within the scope of Fullington's 
Federal operating authority for the purposes of 49 U.S.C. 13902(b)(3). 
That provision permits carriers to provide intrastate passenger service 
over interstate routes as follows:

    Intrastate transportation by interstate carriers.--A motor 
carrier of passengers that is registered by the Secretary under 
subsection (a) is authorized to provide regular-route transportation 
entirely in one State as a motor carrier of passengers if such 
intrastate transportation is to be provided on a route over which 
the carrier provides interstate transportation of passengers.

    To determine whether Fullington's intrastate services meet the 
requirements of Sec.  13902(b)(3), the appropriate standard to apply is 
that set forth in Funbus Systems, Inc.-Intrastate Operations-Petition 
For Declaratory Order, No. MC-C-10917, 1988 WL 225255 (ICC Aug. 11, 
1988) (Funbus). See East West Resort Transportation, Inc. v. Binz, 494 
F. Supp. 2d 1197, 1200 (D. Colo. 2007) (East West); Airporter of Colo., 
Inc. v. ICC, 866 F.2d 1238, 1240-41 (10th Cir. 1989); see also ICC 
Termination Act (ICCTA), Pub. L. 104-88, Sec.  204 (1995) (all ICC 
orders and determinations remain in effect until modified or revoked). 
In Funbus, the ICC concluded that ``it is not enough for the carrier 
merely to offer interstate transportation on the route over which it 
conducts intrastate service'' and established a five-part test to 
determine whether the intrastate service in question is sufficiently 
related to interstate transportation. That test requires us to consider 
the following factors: (1) The interstate service must be active; (2) 
the intrastate service may not operate independently of the interstate 
service, but instead must be conducted as a part of existing interstate 
services; (3) the required interstate transportation must be an actual, 
regularly scheduled service; (4) the interstate transportation must be 
bona fide and involve service in more than one State; and (5) the 
interstate transportation must be substantial. Funbus at *2.
    Applying the Funbus test to Fullington's passenger bus operations 
on the State College--Lewistown--Harrisburg route, we conclude that 
Fullington's intrastate traffic falls within the scope of its 
federally-authorized interstate operations for the purposes of 49 
U.S.C. 13902(b)(3). First, it is undisputed that Fullington's 
interstate service is active on the State College--Lewistown--
Harrisburg route. Based on the PPUC's findings as well as comments 
submitted by both the complainants and other commuters, all agree that 
Fullington offers bus service on this route to through-ticketed 
passengers with interstate origins or destinations. Fullington meets 
the first prong of the Funbus test.
    Second, Fullington's interstate service does not operate 
independently of its intrastate service. Based on evidence Fullington 
presented in the PPUC proceeding, as well as comments commuters made in 
this docket, it is undisputed that after Fullington obtained Federal 
authority in late 2006, any passenger, whether traveling intrastate or 
to an interstate destination or origin, could purchase tickets and 
board any bus traveling on the State College--Lewiston--Harrisburg 
route. Although the evidence presented indicates that certain runs on 
this route are more heavily used by commuters, nothing presented in 
either forum suggests that Fullington operates these runs as a separate 
operation. To the contrary, all evidence and comments point to the 
opposite conclusion: that all runs on the route are part of the same 
integrated operations regardless of whether made during peak or off-
peak commuting times.
    Third, Fullington's interstate transportation is part of an actual, 
regularly-scheduled service. Based on evidence presented to the PPUC 
and comments submitted to this docket, it is undisputed that Fullington 
offers five regularly-scheduled runs on the State College--Lewistown--
Harrisburg route each day. Fullington's transportation on these runs is 
part of an integrated operation that serves both interstate and 
intrastate passengers.
    To satisfy the fourth step, that the interstate transportation must 
be bona fide and involve service in more than one State, we look at 
whether the intrastate operations have a nexus to interstate 
operations. See East West at 1201-1204. In this case, that nexus 
clearly exists.
    Through-ticketing for interstate destinations is one indicia of 
interstate service. Funbus at 2, note 1. Fullington offers through-
ticketing services that allow passengers to buy tickets on the State 
College--Lewistown--Harrisburg route connecting in Harrisburg with 
other carriers, such as Greyhound or Amtrak for passenger 
transportation out of State. Goertz v. Fullington Trailways, LLC, 
Opinion and Order, PPUC Case No. P-00072246, Initial Decision (Mar. 10, 
2008) (``PPUC Initial Decision''), ]] 19-21. No party or commenter 
disputes that Fullington offers this service or that through-ticketed 
passengers use Fullington's services on the State College--Lewistown--
Harrisburg route for interstate travel.
    The nexus between intrastate and interstate transportation also 
exists where the intrastate transportation is an integral part of an 
interstate journey. See Brown's Crew Car of Wyo. LLC v. Nevada Transp. 
Auth., 2009 WL 1240458, at 12 (D. Nev. May 1, 2009). Fullington 
introduced evidence at the PPUC demonstrating that the State College--
Lewistown--Harrisburg route was an integral part of an interstate 
journey for a significant number of passengers on that route. A traffic 
study conducted between July and December 2006 showed that 
approximately 40% of Fullington's passengers on the routes in question 
were actually engaged in interstate travel. PPUC Initial Decision, ] 
22.
    As a result, based on evidence of through-ticketing presented to 
the PPUC and actual movements reflected in the traffic study, we 
conclude that there is a sufficient nexus between the intrastate and 
interstate transportation to satisfy the fourth prong of the Funbus 
test.
    Finally, Fullington argues that due to changes in the Surface 
Transportation and Uniform Relocation Assistance Act, Public Law 100-
17, Sec.  340 (1987), the fifth Funbus factor, which requires that the 
interstate transportation be substantial, is no longer relevant. 
Petition at 6, note 3. This is consistent with the ICC's position in 
Funbus. See

[[Page 4445]]

Funbus at *4. However, as Fullington noted, a number of courts have 
continued to apply the substantiality requirement regardless of the 
statutory change. Petition at 6, note 3; see e.g., East West, 494 
F.Supp. 2d at 1200. Because we conclude that Fullington's interstate 
transportation is substantial, we do not address this apparent conflict 
in precedent.
    Courts have interpreted the substantiality requirement to mean that 
the interstate traffic is substantial in relation to the intrastate 
traffic in the same operation. East West at 1200, citing Airporter of 
Colo., Inc., 866 F.2d at 1240-41 (10th Cir. 1989).
    Fullington's Federal authority is not limited to particular runs, 
but rather applies to the entire State College--Lewistown--Harrisburg 
route. See 49 U.S.C. (b)(3). In evaluating whether it is substantial, 
we look at the proportion of interstate traffic on those routes for 
which Fullington holds Federal operating authority and do not limit our 
analysis to individual runs. There is little question that Fullington's 
interstate traffic is substantial in relation to its intrastate traffic 
on the routes in question. The traffic study conducted in 2006 shows 
that approximately 40% of passengers on the State College to Harrisburg 
route were traveling interstate. Although there is no bright line test 
to determine what proportion of interstate travel constitutes 
``substantial,'' 40% falls within the generally accepted range. See 
East West, 494 F.Supp. 2d. at 1205 (observing that the ICC had found 
that substantial means at least 24-28% of the traffic be interstate).
    In sum, we conclude that Fullington's operations on the State 
College--Lewistown--Harrisburg route meet the Funbus criteria and fall 
squarely within the scope of its Federal operating authority.

Special Operations

    In accordance with the PPUC's order, Fullington requested that we 
specifically address whether the State College--Lewistown--Harrisburg 
route constitutes a ``special operation'' for the purposes of 49 U.S.C. 
13902(b)(6). In its petition, Fullington also raised a number of issues 
related to the application of Sec.  13902(b)(2) to the preemption 
analysis. See Petition at 10. Because we conclude that Fullington's 
State College--Lewiston--Harrisburg operations do not constitute 
special operations, we need not address these issues.
    Section Sec.  13902(b)(6) provides:

    Special operations.--This subsection shall not apply to any 
regular-route transportation of passengers provided entirely in one 
State which is in the nature of a special operation.

Neither FMCSA nor the Federal courts have had the opportunity to 
interpret ``special operations'' for the purposes of 49 U.S.C. 
13902(b)(6). As a result, we look to the interpretations of our 
predecessor agency, the ICC. See ICCTA, Sec.  204.
    The term ``special operations'' has historically been interpreted 
to be a catch-all classification for those operations that are neither 
regular-route transportation of passengers nor charter operations. 
Asbury Park-New York Transit Corporation v. Bingler Vacation Tours, 
Inc., 62 M.C.C. 731, 739 (1954) (Asbury Park). The most common types of 
special operations are sightseeing or pleasure tours. Id.; Fordam Bus 
Corp. Common Carrier Application, 29 M.C.C. 293, 297 (1941) (Fordham). 
Characteristics may include an all-expense-included sightseeing or 
pleasure tour; additional services such as a guide or meals; or 
weekend, holiday or special occasion-only service organized by the 
carrier. Michaud Bus Lines, Inc., Extension Tours, 100 M.C.C. 432, 443 
(1966); Asbury Park, 62 M.C.C. at 739; Fordam, 29 M.C.C. at 297. 
Special operations may also include a variety of different services 
such as door-to-door service, day trips to race tracks, casinos, 
sporting events, or other excursions. Hudson Transit Lines, Inc. v. 
ICC, 765 F.3d 329, 342 (2d Cir. 1985). Whether a particular service 
constitutes special operations depends on the individual 
characteristics of the service (id.) and FMCSA's predecessor agency 
expressly declined to issue regulations defining them with specificity. 
See Passenger Transportation in Special Operations, 112 M.C.C. 160, 174 
(1970).
    Nothing in the record suggests that Fullington's State College--
Lewistown--Harrisburg operations are anything other than regular-route 
transportation of passengers. Fullington's service does not have any of 
the above-mentioned characteristics that would distinguish it from 
traditional regular-route passenger service and necessitate application 
of the ``catch-all'' classification of special operations. Accordingly, 
we find that Fullington's State College--Lewistown--Harrisburg route is 
not a special operation for the purposes of 49 U.S.C. 13902(b)(6).

Commuter Service

    In accordance with the PPUC's order, Fullington has also requested 
that we determine whether the State College--Lewistown--Harrisburg 
route constitutes a ``commuter bus operation'' for the purposes of 49 
U.S.C. 14501(a)(1). We conclude that Fullington's State College--
Lewistown--Harrisburg route is not a commuter service.
    Section 14501(a)(1) provides:

    (a) Motor carriers of passengers.--
    (1) Limitation on State law.--No State or political subdivision 
thereof and no interstate agency or other political agency of 2 or 
more States shall enact or enforce any law, rule, regulation, 
standard, or other provision having the force and effect of law 
relating to--
    (A) scheduling of interstate or intrastate transportation 
(including discontinuance or reduction in the level of service) 
provided by a motor carrier of passengers subject to jurisdiction 
under subchapter I of chapter 135 of this title on an interstate 
route;
    (B) the implementation of any change in the rates for such 
transportation or for any charter transportation except to the 
extent that notice, not in excess of 30 days, of changes in 
schedules may be required; or
    (C) the authority to provide intrastate or interstate charter 
bus transportation.
    This paragraph shall not apply to intrastate commuter bus 
operations, or to intrastate bus transportation of any nature in the 
State of Hawaii.

Title 49, United States Code, subtitle IV, part B (which contains Sec.  
14501(a)(1)) does not define ``commuter bus operations.'' In the 
absence of a statutory definition, we consider the plain meaning of 
``commuter service'' and DOT regulations for guidance. See Greyhound 
Lines, Inc. v. The City of New Orleans, 29 F. Supp.2d 399 (E.D. La. 
1998) (Greyhound v. New Orleans). In Greyhound v. New Orleans, the 
court found that ``an ordinary reading of `commuter' suggests regular 
travel to and from work.'' FMCSA's regulations provide the following 
definition of commuter service:

    Commuter service--means passenger transportation wholly between 
points not more than 100 airline miles apart and not involving 
through-bus, connecting, or interline services to or from points 
beyond 100 airline miles. The usual characteristics of commuter 
service include reduced fare, multiple-ride, and commutation 
tickets, and peak morning and evening operations.

49 CFR 374.303(g). DOT's Americans with Disabilities Act (ADA) 
regulations define commuter bus service as follows:

    Commuter bus service means fixed route bus service, 
characterized by service predominantly in one direction during peak 
periods, limited stops, use of multi-ride tickets, and routes of 
extended length, usually between the central business district and 
outlying suburbs. Commuter bus service may also include other 
service, characterized by a limited route structure, limited stops, 
and a coordinated relationship to another mode of transportation.

49 CFR 37.3.

[[Page 4446]]

    Fullington's State College--Lewistown--Harrisburg operation does 
not constitute a commuter service under either of these definitions. 
The route provides interline service to through-ticketed passengers. 
More importantly, operations on this route are not limited to peak 
morning and afternoon hours and the route is used by passengers 
traveling at off-peak hours. We must also take into account that the 
route accommodates university students, many of whom are engaged in 
interstate travel, at off-peak and holiday hours. Whether Fullington 
previously operated the State College--Harrisburg and Lewistown--
Harrisburg routes as a commuter service under PPUC authority is not 
relevant to our inquiry. Our review is limited to Fullington's 
operations since it obtained Federal operating authority. Since then, 
the record shows that Fullington has not operated these routes as a 
commuter service.

Conclusion

    Section 14501(a)(1) preempts State or local government entities 
from regulating the rates or scheduling of carriers that provide 
intrastate or interstate transportation subject to Federal 
jurisdiction. Because we find that Fullington is operating its State 
College--Lewistown--Harrisburg route within its Federal operating 
authority, we conclude that the PPUC's jurisdiction over rates and 
schedules is preempted.

Response to Comments

    The Agency received eleven initial comments of which five commuters 
(including complainants in the PPUC action) opposed Federal 
jurisdiction and three bus companies (including Fullington), an 
industry association, three county commissioners and four members of 
Congress supported Federal jurisdiction. The Agency received eleven 
reply comments of which ten commuters (including complainants in the 
PPUC action) opposed Federal jurisdiction. One industry association 
supported Federal jurisdiction. Many of the comments we received 
repeated information or arguments presented at the PPUC or raised 
issues well beyond the scope of the Federal Register notice. We address 
the relevant comments below, organized by issue.

Whether Fullington's Operations Are Within the Scope of Its Federal 
Operating Authority and Whether PPUC Regulation as to Rates and 
Schedules Is Preempted

Comments
    The five commuters who opposed Federal jurisdiction over 
Fullington's State College--Lewistown--Harrisburg route made three 
primary arguments: (1) That Fullington's operations on this route do 
not meet the substantiality test as set forth in Funbus; (2) that 
Fullington's operations on this route do not cross State lines; and (3) 
that Fullington's current operations should not be the focus of FMCSA's 
analysis.
Response
    As explained above, we acknowledge that there is some conflict 
between the ICC's Funbus decision and subsequent court decisions. 
Although Funbus does not require that we consider substantiality, we 
nonetheless erred on the side of caution to be consistent with more 
recent court decisions and included it in our analysis. Traffic studies 
show that approximately 40% of the traffic on this route originates or 
terminates out of State. Existing precedent supports our conclusion 
that this is substantial.
    Although Fullington's State College--Lewiston--Harrisburg route 
does not cross State lines, Federal law provides that passengers along 
this route may be engaged in interstate transportation if their origin 
or destination is out of State. We conclude that Fullington has 
provided ample evidence of through-ticketing and actual interstate 
movements to conclude that it conducts interstate transportation on 
this route.
    Finally, a number of comments were focused on Fullington's 
operations when it was operating pursuant to its PPUC authority, prior 
to when it began operating under its Federal authority. However, those 
comments relate to operations outside the scope of Fullington's Federal 
authority. We only consider those services Fullington provided in 
accordance with its Federal authority and render no opinion on any 
services provided prior to that date.
Comments
    The commenters who supported Federal jurisdiction made four basic 
arguments: (1) Fullington meets the Funbus criteria, including the 
substantiality requirement; (2) a contrary finding would lead to 
excessive regulation and put intercity bus operators at a competitive 
disadvantage; (3) the authority to certificate carriers and the 
preemption of State laws apply to routes, not to specific line runs; 
and (4) Fullington's operations, even if only 24% of traffic on the 
route in question is interstate, are substantial for purposes of the 
Funbus test.
Response
    As explained above, we agree that Fullington has met the Funbus 
criteria, including the substantiality requirement. We also agree that 
the appropriate analysis is whether Fullington's entire State College--
Lewistown--Harrisburg route is within the scope of its Federal 
operating authority and not whether particular runs individually meet 
the Funbus test. As we have already concluded that Fullington's 
operations along this route are within the scope of its Federal 
operating authority and that State regulation over rates and schedules 
is preempted, we do not address the policy implications of reaching the 
opposite conclusion. Similarly, because we conclude that approximately 
40% of Fullington's traffic along this route is interstate, we do not 
need to make a determination as to whether any other percentage would 
be considered substantial.

Whether Fullington's Operations Qualify as a ``Special Operation'' or 
``Intrastate Commuter Bus Operation'' Under 49 U.S.C. 13902

Special Operation

Comment
    FMCSA received one comment noting that special operations can 
include regular route transportation of passengers.
Response
    FMSCA agrees that special operations can include operations over 
regular routes; however, such operations are distinguished from regular 
route transportation because they entail and are distinguished by 
additional service features as noted in the analysis above. The Agency 
believes that the other individual characteristics of Fullington's 
State College--Lewistown--Harrisburg route are not consistent with the 
distinguishing service features that characterize special operations.

Intrastate Commuter Bus Operation

    A number of commenters argued that the characteristics of State 
College--Lewistown--Harrisburg route were those of a commuter 
operation, following a common sense definition. These characteristics 
include: That the early morning and late afternoon runs are used 
primarily by commuters; that

[[Page 4447]]

the buses do not run on holidays or weekends; that the schedule 
reflects passengers' commuting schedule; that the bus stops at multiple 
work places in Harrisburg; that the route is 90 miles; and daily 
passengers can buy a 20-ride or monthly ticket at reduced prices.
Response
    FMCSA acknowledges that all of these characteristics could be 
associated with an intrastate commuter bus operation. Although such 
factors, either individually or collectively, could speak to the 
frequency or regularity of use of a passenger transportation service, 
they are not dispositive of commuter service. In fact, Fullington's 
route has other characteristics that support our conclusion that it is 
not a commuter bus operation. For example, Fullington offers through-
ticketing and has demonstrated through traffic studies that passengers 
actually use the route in interstate transportation. Furthermore, 
Fullington operates this route several times a day at times other than 
peak commuting times. Many of the commenters who support a finding of 
commuter bus operations acknowledge that these non-peak runs exist and 
that they serve interstate passengers, including Pennsylvania State 
University students.
Comments
    Commenters supporting a finding that Fullington's State College--
Lewiston--Harrisburg route is not a commuter bus operation noted that 
even though the route is used by commuters, it terminates at the 
Harrisburg Transportation Center, a multi-modal center where passengers 
can transfer to other bus and rail operators. They further state that 
the fact that commuters use the early morning and afternoon runs does 
not make the entire federally-authorized route a commuter bus 
operation.
Response
    FMCSA agrees that these characteristics support its conclusion that 
Fullington is not operating the route in question as an intrastate 
commuter bus operation.

Preemption

Comment
    One commenter argued that Fullington was obligated to have ``closed 
out'' its State operating authority prior to obtaining Federal 
operating authority.
Response
    We disagree with this comment. The Agency is unaware of any 
provision of law requiring a carrier to surrender or ``close out'' its 
State operating authority prior to obtaining and using Federal 
operating authority.

    Dated: January 19, 2010.
Anne S. Ferro,
Administrator.
[FR Doc. 2010-1645 Filed 1-26-10; 8:45 am]
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