Attachment

Department of Transportation Federal Motor Carrier Safety Administration Docket No. FMCSA – 2008 – 0235: Elimination of Route Designation Requirement For Motor Carriers Transporting Passengers over Regular Routes COMMENTS OF AMERICAN BUS ASSOCIATION IN RESPONSE TO THE NOTICE OF PROPOSED RULEMAKING September 22, 2008 The American Bus Association (ABA) appreciates the opportunity to comment on the Federal Motor Carrier Safety Administration’s Notice of Proposed Rulemaking (NPRM) proposal to do away with the requirement for applicants for regular route authority to describe the routes over which they propose to operate and to provide a map of those routes. The American Bus Association is the national trade association for the private over-the-road motorcoach industry. The ABA represents 850 bus operator members including over a hundred bus operators that operate scheduled bus service over regular routes in both nationwide and regional service. ABA appreciates that this NPRM is directed at applicants for regular route authority and does not implicate the duties of charter, tour and applicants for irregular route authority. That said ABA must oppose the NPRM as proposed. ABA has concerns similar to those expressed by Greyhound Lines, Inc. in its comments submitted to this docket on September 15, 2008. Namely, the proposal is not consistent with the needs of the FMCSA, the nation’s regular route bus operators or the traveling public. The bus industry is experiencing a flurry of new entrants for regular route authority. This includes new so-called “curbside” operators, new subsidiaries of Mexican bus companies providing domestic service in the United States and it includes cross-border bus carriers, who are providing regular route, cross border service utilizing charter and tour authority in order to evade the moratorium on cross-border, regular route service. FMCSA’s statistics document this trend. The NPRM (73 Federal Register 45930) states that there are 272 active regular-route carries licensed by the FMCSA. In 2007 there were 94 applications from new applicants and 34 applicants for expanded authority. In the NPRM FMCSA states that the notice proposing to eliminate route descriptions in regular route bus applications is based on the proposition that “designation of regular routes is an administrative requirement based on economic regulation which is considered to have limited safety benefits to the public or the transportation community” (73 Federal Register at 45929). In addition to this wave of new applications there is some apprehension on the part of the ABA and the public that FMCSA’s enforcement of the safety fitness of regular route applicants would be harmed by the elimination of the requirement that applicants described the routes they intend to use and provide a simple map of those routes. The requirement of a map and description of the applicant’s routes provides FMCSA with the opportunity to compare the routes requested with the applicant’s fitness, specifically as to equipment, personnel and its ability to safely travel those routes. As Greyhound Lines, Inc. stated it is submission “FMCSA must know what route is going to be operated in order to ascertain whether it can be operated safely” (page 2). Thus, this requirement does not just concern itself with economic regulation. The integrity of the safety of the regular route transportation system seems to ABA to favor retaining this requirement. Indeed, as Greyhound Lines points out, an analysis of a carrier’s safety fitness is required by statute. 49 U.S.C. 13902 (a) (1) requires that the Secretary “shall register a person to provide transportation …as a motor carrier if the Secretary finds that the person is willing and able to comply with –“the applicable regulations of the Secretary and the Secretary’s safety fitness requirements. There is a real question as to how this could be performed if the Secretary does not know the extent of the transportation the regular route operator intends to perform. Moreover, as Greyhound Lines opines in its submission, there are several statutory requirements that militate against proceeding with the NPRM. First, there is the conflict with 49 U.S.C 13902(b) (3) that elimination of the route designations would create. Section 13903(b) (3) preempts states from entry regulation of bus companies providing service on interstate routes authorized by FMCSA. Congress intended that FMCSA grant authority on a route specific basis. Without such action, Section 13902(b) (3) would be more difficult to administer. States could argue that because of the lack of interstate route designation, they are free to regulate entry within their borders, but a certificate of registration that sets our specific routes is strong evidence that a carrier is operating in interstate commerce and therefore state regulatory authority is preempted. On the other hand, carriers could argue that they are authorized to go anywhere in interstate commerce without any regulation by the states of any intrastate authority. ABA also must agree with Greyhound’s analysis of the effect on 49 U.S.C. 14501 (a) and of the just enacted statute Public Law 110-291, the Over-the-Road Bus Transportation Accessibility Act of 2007 of this NPRM. For all of these reasons, ABA urges FMCSA to withdraw this proposal to do away with the regular route designations. Respectfully submitted, Clyde J. Hart Senior Vice President for Government Affairs American Bus Association Suite 575 700 13th Street, N.W. Washington, D.C. 20004 Phone :( 202) 218-7228 Email: chart@buses.org