fta’s new charter rules

FTA’s New Charter RulesPresented by:

Ohio Department of Transportation/Office of TransitPresenter:

Rich Garrity, Senior Associate

RLS & Associates, Inc.

April 24, 2008

FTA’s New Charter Regulations of 95

Session Objectives

1. Define Key Terms and Applicability1. Define Key Terms and Applicability

2. Review Exceptions to Rule 2. Review Exceptions to Rule

3. Review New Registration Process3. Review New Registration Process

4. Understand Challenges and Complaints 4. Understand Challenges and Complaints


Target Audience

This Session is Designed for: Rural Transit Agencies Human Service Agencies Private Charter Operators Specialized Providers That May

Enter the Rural Public Program

Key Definitions and Applicability

Module 1


Effective Date

Final Rule Issued on January 14, 2008

There are Significant Changes Rule Goes Into Effect on April

30, 2008


Significant Changes

New Definition of “Charter” Categorical Exemption for Section

5311 if Service is for “Program Purposes”

Other New Exemptions New Exceptions Registration Process Replaces

Transit System Solicitation of “Willing and Able” Operators


Definition: Charter Service

Transportation Provided By a Recipient At the Request of A Third Party For the Exclusive Use of a Bus or Van For a Negotiated Price

Or…


Definition: Charter Service Transportation Provided By a

Recipient To The Public for Events or Functions That Occur on An Irregular Basis or For a Limited Duration and: A Premium Fare Is Charged That Is

Greater Than The Usual or Customary Fixed Route Fare; or

The Service Is Paid For In Whole Or In Part By A Third Party


Definition: Charter Service Key Characteristics of Charter Service

A Third Party Pays the Transit Provider a Negotiated Price For the Group

Any Fares Charged To Individual Members of the Group Are Collected By a Third Party

The Service Is Not Part of the Transit Provider’s Regularly Scheduled Service, or Is Offered For a Limited Period Of Time;

A Third Party Determines the Origin and Destination and Trip Schedule


Definition: Charter Service

Service Provided to Individuals in Demand Response Mode is Not Charter Service Under the New Regs


Applicability

New Rule Applies to Recipients of FTA Financial Assistance Also Applies to Subrecipients and

Third Party Contractors That Utilize FTA Funded Equipment

Charter Certification Still Required


Exemptions from the Regulations

There are Some Clear Exemptions From the Regulations


Exemptions from the Regulations: Transportation of Employees Transportation of Employees of

the Transit System To/From Transit Facilities Within the Service Area Other Transit System Employees,

Bidders or Contractors, or Other Governmental Officials Fall Under this Exemption


Exemptions From the Regulations: Emergency Preparedness Transportation of Employees

of the Transit System To/From Emergency Preparedness Planning and Operation


Exemptions from the Regulations: Rural Training

Nonurbanized Areas Transit Systems May Transport Their Own Employees, Other Transit System Employees, Transit Management Officials, and Transit Contractors and Bidders To/From Transit Training Outside Its Geographic Service Area


Exemptions from the Regulations: Private Sector Receiving FTA Funds If a Private Charter Operator

Receives FTA Funding, Directly or Indirectly, Is Not Subject to the Rules on Its Non-FTA Funded Activities


Exemptions from the Regulations: National, State, and Local Emergencies Service Provided in Direct Response

to an Emergency Declared By the President, a Governor, or a Mayor

Service Provided in Direct Response to an Emergency Requiring Immediate Action Prior to a Formal Declaration

Exemption Applies for 45 Days Beyond 45 Days, Permission Must be

Granted by the FTA Administrator


Exemptions From the Regulations: Program Exemptions The Following FTA Programs are

Exempt From the Regulations Section 5310 (Elderly and Persons

with Disabilities Program) Section 5311 (Nonurbanized Area

Program) Section 5316 (JARC Program) Section 5317 (New Freedom Program)


Exemptions From the Regulations: Program Exemptions This Exemption Only Applies if

the System is Transporting Groups for “Program Purposes”


Exemptions From the Regulations: Program Exemptions Program Purposes Means

Transportation That Serves the Needs of Either Human Service Agencies or Targeted Populations (Elderly, Individuals With Disabilities, and/or Low Income Individuals)


Exemptions From the Regulations: Program Exemptions Program Purposes Does Not

Include Exclusive Service For Other Groups Formed for Purposes Unrelated to the Special Needs of the Targeted Populations


FTA Ombudsman

Crystal FrederickOmbudsman for Charter ServicesFederal Transit Administration, 1200 New Jersey Ave., SE. Room E54–410

Washington, DC 20590

(202) 366–4063

[email protected]


Review FTA Questions and Responses

Exceptions to the Regulations

Module 2


General If the Exemptions Listed in the

Previous Module Do Not Apply, Your Organization is Subject to the Charter Regulations

There are Also “Exceptions” to the Regulations

Many Exceptions are Continuations of Exceptions in the Former Rule


Exceptions: Government Officials New Exception A Transit System May Provide

Charter Service to Government Officials for Official Governmental Business

Conditions Within Service Area Trip Does Not Generate Revenue Limited to 80 Hours Per Year


Exceptions: Government Officials

Recordkeeping Required (See Appendix B of Guidebook)

Transit System May Petition FTA Administrator Seeking Permission to Exceed 80 Hours Petitions Get Posted to a New

Docket for Comment


Exceptions: Qualified Human Service Organization (QHSO) New Concept

An Organization That Serves Persons Who Qualify For Human Service Program Funding (See Appendix A to the Regulation)

An Organization That Provides Human Services to Individuals with Disabilities Individuals with Low Income Individual with Advanced Age (Elderly)


Exceptions: Qualified Human Service Organization (QHSO) A Human Service Agency is

Categorically Assumed to be a QHSO if it Receives Funding Under the Standard List of Federal Programs Found in Appendix A of the Regulation

If the Organization Does Not Receive Such Funding, Then it Must Register on a New FTA Website as a QHSO


Exceptions: Qualified Human Service Organization (QHSO)

A Transit System May Provide Charter Service to a QHSO

Recordkeeping Requirements


Exceptions: Leasing of Equipment/ Drivers A Transit System May Lease Its FTA

Funded Equipment and Provide Drivers to a Registered Charter Provider

Conditions Provider is Registered Provider Owns and Operates Buses and Vans

in a Charter Business Provider Received a Request that Exceeds Its

Capacity Provider Has Exhausted All Available

Vehicles From Other Registered Private Charter Operators


Exceptions: Leasing of Equipment/ Drivers Recordkeeping Requirements Similar Information But Also

Includes System Retention of the Private Charter Operator’s Documentation That the Four Conditions are Met


Exceptions: Agreements with Registered Private Charter Operators A Transit System May Negotiate with

Registered Providers To Seek Permission to Provide Certain Charter Trips

Agreements Must be Reached With All Providers

If a New Provider Registers, the Transit System May Continue to Operator Under the Current Agreements With Operators An Agreement Must be Reached with the

New Operator in 90 Days


Exceptions: Petitions to the FTA Administrator A Transit System May Submit

Requests (Petitions) to the FTA Administrator to Provide Charter Service Under Three Scenarios Events of Regional or National

Significance Hardships (Nonurbanized Areas Only) Unique and Time Sensitive

Events (e.g., Funerals of Local, Regional, or General Public Interest


Exceptions: Petitions to the FTA Administrator Petitions Are One-Time Events Petitions Must Indicate

Date and Description of the Event Type of Service Requested and the

Type of Equipment Anticipated Number of Charter

Service Hours Needed For the Event Anticipated Number of Vehicles and

Duration of The Event


Exceptions: Petitions to the FTA Administrator National Events

Super Bowl Democratic National Convention Presidential Addresses

System Must Also Provide A Description of How Registered Charter Providers Were Consulted Will Be Utilized

System Must Certify That It Has Exhausted All of the Registered Charter Providers In Its Geographic Service Area


Exceptions: Petitions to the FTA Administrator Hardships

Designed for Nonurbanized Areas Situations Where a Charter Operator

Would Impose Minimum Duration or Similar Charges That Would Make the Cost Prohibitive to the Chartering Party

This Exception Has Been Extended to Small Urbanized Areas (Under 200,000)


Exceptions: No Response To Notice A Transit System Is Permitted to

Provide A Requested Charter Service If, After Providing Notice to All Registered Private Operators, There is No Response or Interest in Providing the Service Requests for Service Within 30 Days

Response From Operators Due in 72 Hours Requests for Service Beyond 30 Days

Response From Operators Due in 14 Calendar Days


Exceptions: No Response To Notice Notices Must Follow Prescribed

Process Recordkeeping Requirements

(See Appendix B to the Guidebook)


Recordkeeping New Electronic Reporting Requirement

Quarterly Submission Effective July 30, 2008 Reports Filed at FTA Website

All Charter Activity Records Retention Requirement: Three Years Electronic, But No Specific Format

Specified A Single Log May Suffice


Recordkeeping If Any Charter Service Was

Provided in the Quarter, a Clear Statement Identifying Which Exception The System Relied Upon When It Provided the Charter Service Must be Submitted to FTA

FTA Registration Process

Module 3


Registration Process

A New, Web-Based Registration Process Replaces the Old Requirement for a Transit System to Annually Solicit the Interest of Willing and Able Operators

Two Entities Register Private Charter Operators Qualified Human Service

Organizations


Registration Home Page


Private Charter Operator Registration

Website Address

http://www.fta.dot.gov/laws/leg_reg_179.html



Website Options Register Amend a Previous Registration Search Private Charter Operators

Database Search Qualified Human Service

Organizations Database



Self-Certification Process For Example, Proof of Insurance

is Not Required Civil and Criminal Penalties,

However, For Filing a False Registration



Information Company Contact Information Federal and State Motor Carrier Numbers The Geographic Service Areas (Organized by

Public Transit Agencies) In Which the Private Charter Operator Intends to Provide Charter Service

The Number of Buses/Vans the Private Charter Operator Owns

A Certification Regarding Valid Insurance Statement Regarding Whether the Operator is W to

Provide Free or Reduced Rate Charter Service to Registered Qualified Human Service Organizations



Challenges A Transit Agency Another Private Charter Operator Representatives of these

Organizations Challenges Filed Through a

Complaint Process



Website Must Be Updated Whenever There is a Change, But No Less Frequently Than Once Every Two Years


Qualified Human Service Organization (QHSO) Registration

A Human Service Agency That Receives Funding Under Any One of the Federal Programs Listed in Appendix A of the Regulation Does Not Have to Register

If the Agency Does Not Receive Such Funding, But Serves the Elderly, Persons with Disabilities or Persons with Low Income, They Should Register If They Need Charter Services from a Public Transit System


Qualified Human Service Organization (QHSO) Registration Information

Agency Contact Information The Geographic Service Areas (Organized by

Public Transit Agencies) In Which the Agency Serves A Copy of the Most Recent Financial Statement Statement Indicating If the Agency is Organized as a

Section 501(c) (1),(3), (4), or (19) Corporation of the Internal Revenue Code

Statement Regarding Funding, Directly or Indirectly From a Federal or State Agency

A Statement Describing the Charter Service Required and How That Service is C With the Mission of the Agency



Challenges A Transit Agency Another Private Charter Operator Representatives of these

Organizations Challenges Filed Through a

Complaint Process



Website Must Be Updated Whenever There is a Change, But No Less Frequently Than Once Every Two Years


How Public Transit Systems Use the Registration Database

If An Organization Qualifies as a QHSO, Then the Transit Agency, Upon Request to Provide a Charter Service, Should Verify the Agency’s QHSO Status on the Website

If Registered, Then the Transit Agency May Provide the Service Pursuant to the Exception Allowed Under 49 CFR part 604.7

Must Maintain Records


How Public Transit Systems Use the Registration Database

Why Do We Need the Database? Section 5311 Systems Will Be Able to

Serve Qualified Human Service Organizations Under The Exemption in 49 CFR part 604.2(e)

Other FTA Recipients (e.g., Urban Formula Funds (Section 5307)) Will Use This Database


Decision Tree, Part 1

Yes?

Transit System Receives FTA

Financial Assistance

No?

FTA Charter Regs Do Not Apply

Section 5310, 5311, 5316, or

5317?No?

Yes?

Program Purpose?


Yes?

No?

Other Exemption Apply?*

Transport of Employees for Transit BusinessTransport of Employees for Emergency PreparednessTransport of Nonurbanized Area System Employees for TrainingNational, State or Local EmergenciesPrivate Operators that Receive FTA Funding on Non-FTA Activities

Yes?


No?

Other Exemptions*

Next Page


Decision Tree, Part 2

Yes?

No?

Service is Eligible Public

Transportation

Proposed Service Fit Within Any

Exception*No?

Government Officials

Send Notice to Registered

Private Charter Operators

Does the Proposed Service

Meet the Definition of

“Charter”

Qualified Human Service

Organizations

Leasing of Vehicles/Drivers

File E-Mail Notice with Registered

Charter Operators

Provide Service

Keep Required Records

Agreements with Registered Providers

Yes?

Private Operator Interest in Providing Service?

No?

Yes?

Public Transit Agency

Prohibited from Providing

Service, Even If Private Charter

Operators Do Not Reach Agreement with Requesting Party to Provide

the Charter


Group Exercise Exercise – Can We Provide Charter

Service?

Review the Various Scenarios and Determine if The Transit Agency Can Provide the Requested Charter Service

Complaints and Enforcement

Module 4


Overview New SAFETEA-LU Mandated

Enforcement Mechanisms

Registration Challenges Advisory Opinions Cease and Desist Orders Violation Complaints


Registration Challenges – Private Operators Challenging a Private Charter

Operator Registration Required Information

State the name and address of each entity who is the subject of the complaint; and

A Concise Statement of Why the Private Charter Operator Should Not Be Listed


Registration Challenges – Private Operators Filing a Complaint is Electronic

Process Filed to the Charter Service

Removal Complaint docket number FTA–2007– 0024 at:

http://www.regulations.gov Complaints Can Also Be Filed

on Paper


Registration Challenges - QHSO Challenging a Qualified Human

Service Organization Required Information

State the name and address of each entity who is the subject of the complaint; and

A Concise Statement of Why the QHSO Should Not Be Listed


Registration Challenges - QHSO Filing a Complaint is Electronic

Process Filed to the Charter Service

Removal Complaint docket number FTA–2007– 0024 at:

http://www.regulations.gov Complaints Can Also Be Filed

on Paper


Registration Challenges - QHSO Certification Required by

Complainant Challenges Must be Filed Within 90

Days of the Complaining Party Discovering Facts That Merit Removal of the Registered Charter Provider from the FTA Charter Registration Website

Agency Response Due in 15 Days After Challenge


Registration Challenges - FTA FTA Will Rule, Based on

Preponderance of Evidence Bad Faith Fraud Lapse of Insurance Lapse of Other Documentation Repetitive Filing of Unsubstantiated


Registration Challenges - FTA FTA Will Rule Within 30 Days of

Filing of Challenge Response Permit Registrant to Remain on

List and Why Length of Time Off List if

Removed (Up to Three Years)


Advisory Opinions A Written Statement Issued By

the FTA Chief Counsel Regarding Whether A Service Is Being Provided In Compliance Or Not In Compliance With FTA Charter Rules

A First Step That Establishes a Basis for Further Action, If Any


Advisory Opinions Represent Formal Position of

FTA on Matter Advisory Opinions May be

Accompanied by Issuance of a “Cease and Desist” Order


Advisory Opinions Requesting an Advisory Opinion

Statement of Facts Affirmation

Requests Filed Electronically Charter Service Advisory

Opinion/Cease and Desist Order docket number FTA–2007– 0023 at:

http://www.regulations.gov


Cease and Desist Orders A Written Order Issued By FTA

Mandating That The Service In Question Provided By the Transit System Be Stopped Immediately

ODOT Will Treat Advisory Opinions and Cease and Desist Orders as Compliance Items


Cease and Desist Orders Requests for Orders Must Contain:

A Description of the Need for the Order

A Detailed Description of the Lost Business Opportunity

A Description of How The Public Interest Will Be Served

A Detailed Description of the Efforts Made to Notify the Transit System of the Potential Violation


Cease and Desist Orders – Transit System Response Response Required in Three

Business Days Point-by-Point Rebuttal Should

be Supplied


Violation Complaints Formal Process

Private Operator Complaint Transit System Answer Private Operator Reply Transit System Rebuttal

Specified Timelines for Each Step in Process


Violation Complaints

6/3 - 6/2320 Days

6/23 - 7/310 Days

5/4 - 6/330 Days

4/4 - 5/430 Days

1/5 - 4/490 Days

1/1/08 7/31/08

1/5/08Date of Alleged Violation

5/4/08FTA Notifies System

6/3/08Transit System Answer

6/23/08Charter Operator Reply

7/3/08Transit System Rebuttal

4/4/08Deadline for Filing Complaint

Complaint Answer Reply Rebuttal

Transit System Action Private Charter Operator Action FTA Action


Violation Complaints FTA May Dismiss a Complaint

Outside FTA’s Jurisdiction Complaint Deemed Unwarranted Lack of Legal Standing of

Complainant Party


Violation Complaints - Investigation FTA, If Merit is Found in the

Violation Complaint, Will Conduct Investigation

FTA May Seek Additional Facts from Both Parties

FTA May Initiate an Investigation Without a Formal Complaint


Violation Complaints - Investigation FTA May Appoint a “Presiding

Officer” to Oversee the Complaint Investigation and to Conduct Formal Hearings on the Matter

Judicial Rights Accorded to Both Parties Legal Representation Right to Have a Hearing Right to Present Testimony


Violation Complaints - Investigation Presiding Officer (PO) Submits

Findings and Recommendations to FTA Chief Counsel Within 110 Days of Referral

Requested Extensions May Delay Ruling


Violation Complaints - Appeals A Party May Appeal the Chief

Counsel’s Decision by Filing Notice of Appeal Within 21 Days

FTA Administrator Rules Within 30 Days of Appeal

FTA Administrator Has Discretionary Authority to Review All Decisions


Violation Complaints - Appeals If An Appeal Is Not Filed, the

Chief Counsel’s Decision Takes Effect as FTA’s Final Decision and Order 21 Days After the Date of the Chief Counsel’s Decision

Failure to File an Appeal Is Deemed a Waiver of Any Rights to Seek Judicial Review of the Chief Counsel’s Decision


Violation Complaints - Remedies Violation Complaints, if

Substantiated, May Result in Serious Penalties Imposed on Transit System Bar Transit System From Receiving

Future FTA Financial Assistance Withholding of a Percentage of

FTA Financial Assistance Suspension/Debarment


Additional Resources 49 CFR part 604 Appendix B to 49 CFR part 604

Basis for Removal From Charter Registration Website

Appendix B to 49 CFR part 604 Charter Service Questions and

Answers


Additional Resources Transit Agency Fact Sheet

http://www.fta.dot.gov/documents/Fact_Sheet-

_Charter_Service_Final_Rule.ppt

Private Charter Operators Fact Sheethttp://www.fta.dot.gov/documents/

Charter_Final_Rule-Private_Operator_Fact_Sheet.ppt


Adjourn

Good Luck in Using This Information at Your Own Transit Programs


Presenter

Richard Garrity, Senior AssociateRLS & Associates, Inc.

3131 S. Dixie Highway, Suite 545Dayton, OH 45439

(937) 299-5007

Direct Line: (910) [email protected]

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