FTA s New Charter Rules

FTA s New Charter Rules Presented by: Ohio Department of Transportation/Office of Transit Presenter: Rich Garrity, Senior Associate RLS & Associates, Inc. November 13, 2008

Session Objectives 1. Define Key Terms and Applicability 2. Review Exemptions/Exceptions to the Rule 3. Review New Registration Process 4. Understand Challenges and Complaints FTA s New Charter Regulations Page 2 of 93

Target Audience This Session is Designed for: Transit Agencies Human Service Agencies Private Charter Operators Specialized Providers That May Enter the Rural Public Program FTA s New Charter Regulations Page 3 of 93

Key Definitions and Applicability Module 1

Effective Date Final Rule Issued on January 14, 2008 There are Significant Changes Rule Went Into Effect on April 30, 2008 FTA s New Charter Regulations Page 5 of 93

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 FTA s New Charter Regulations Page 6 of 93

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 FTA s New Charter Regulations Page 7 of 93

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 FTA s New Charter Regulations Page 8 of 93

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 FTA s New Charter Regulations Page 9 of 93

Definition: Charter Service Service Provided to Individuals in Demand Response Mode is Not Charter Service Under the New Regs FTA s New Charter Regulations Page 10 of 93

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 FTA s New Charter Regulations Page 11 of 93

Exemptions to the Regulations There are Some Clear Exemptions From the Regulations FTA s New Charter Regulations Page 12 of 93

Exemptions to 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 FTA s New Charter Regulations Page 13 of 93

Exemptions to the Regulations: Emergency Preparedness Transportation of Employees of the Transit System To/From Emergency Preparedness Planning and Operation FTA s New Charter Regulations Page 14 of 93

Exemptions to 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 FTA s New Charter Regulations Page 15 of 93

Exemptions to 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 FTA s New Charter Regulations Page 16 of 93

Exemptions to 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 FTA s New Charter Regulations Page 17 of 93

Exemptions to 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) FTA s New Charter Regulations Page 18 of 93

Exemptions to the Regulations: Program Exemptions This Exemption Only Applies if the System is Transporting Groups for Program Purposes FTA s New Charter Regulations Page 19 of 93

Exemptions to 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) FTA s New Charter Regulations Page 20 of 93

Exemptions to the Regulations: Program Exemptions Program Purposes Do Not Include Exclusive Service For Other Groups Formed for Purposes Unrelated to the Special Needs of the Targeted Populations FTA s New Charter Regulations Page 21 of 93

Review FTA Questions and Responses FTA s New Charter Regulations Page 22 of 93

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 FTA s New Charter Regulations Page 24 of 93

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 FTA s New Charter Regulations Page 25 of 93

Exceptions: Government Officials Recordkeeping Required (See Appendix B of Guidebook or FTA Website) Transit System May Petition FTA Administrator Seeking Permission to Exceed 80 Hours Petitions Get Posted to a New Docket for Comment FTA s New Charter Regulations Page 26 of 93

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) FTA s New Charter Regulations Page 27 of 93

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 FTA s New Charter Regulations Page 28 of 93

Exceptions: Qualified Human Service Organization (QHSO) A Transit System May Provide Charter Service to a QHSO Recordkeeping Requirements FTA s New Charter Regulations Page 29 of 93

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 FTA s New Charter Regulations Page 30 of 93

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 FTA s New Charter Regulations Page 31 of 93

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 FTA s New Charter Regulations Page 32 of 93

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 FTA s New Charter Regulations Page 33 of 93

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 FTA s New Charter Regulations Page 34 of 93

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 FTA s New Charter Regulations Page 35 of 93

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) FTA s New Charter Regulations Page 36 of 93

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 FTA s New Charter Regulations Page 37 of 93

Exceptions: No Response To Notice Notices Must Follow Prescribed Process Recordkeeping Requirements (See Appendix B to the Guidebook) FTA s New Charter Regulations Page 38 of 93

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 FTA s New Charter Regulations Page 39 of 93

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 s New Charter Regulations Page 40 of 93

Review FTA Questions and Responses FTA s New Charter Regulations Page 41 of 93

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 FTA s New Charter Regulations Page 43 of 93

Registration Home Page FTA s New Charter Regulations Page 44 of 93

Private Charter Operator Registration Website Address http://www.fta.dot.gov/laws/leg_reg_179.html FTA s New Charter Regulations Page 45 of 93

Private Charter Operator Registration Website Options Register Amend a Previous Registration Search Private Charter Operators Database Search Qualified Human Service Organizations Database FTA s New Charter Regulations Page 46 of 93

Private Charter Operator Registration Self-Certification Process For Example, Proof of Insurance is Not Required Civil and Criminal Penalties, However, For Filing a False Registration FTA s New Charter Regulations Page 47 of 93

Private Charter Operator 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 FTA s New Charter Regulations Page 48 of 93

Private Charter Operator Registration FTA s New Charter Regulations Page 49 of 93

Private Charter Operator Registration FTA s New Charter Regulations Page 50 of 93

Private Charter Operator Registration Challenges A Transit Agency Another Private Charter Operator Representatives of these Organizations Challenges Filed Through a Complaint Process FTA s New Charter Regulations Page 51 of 93

Private Charter Operator Registration Website Must Be Updated Whenever There is a Change, But No Less Frequently Than Once Every Two Years FTA s New Charter Regulations Page 52 of 93

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 FTA s New Charter Regulations Page 53 of 93

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 Consistent With the Mission of the Agency FTA s New Charter Regulations Page 54 of 93

Qualified Human Service Organization (QHSO) Registration FTA s New Charter Regulations Page 55 of 93

Qualified Human Service Organization (QHSO) Registration FTA s New Charter Regulations Page 56 of 93

Qualified Human Service Organization (QHSO) Registration Challenges A Transit Agency Another Private Charter Operator Representatives of these Organizations Challenges Filed Through a Complaint Process FTA s New Charter Regulations Page 57 of 93

Qualified Human Service Organization (QHSO) Registration Website Must Be Updated Whenever There is a Change, But No Less Frequently Than Once Every Two Years FTA s New Charter Regulations Page 58 of 93

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 FTA s New Charter Regulations Page 59 of 93

How Public Transit Systems Use the Registration Database Why Do We Need the Database? Transit Systems Will Be Able to Serve Qualified Human Service Organizations Under The Exemption in 49 CFR part 604.2(e) FTA s New Charter Regulations Page 60 of 93

Decision Tree FTA s New Charter Regulations Page 61 of 93

Review FTA Questions and Responses FTA s New Charter Regulations Page 62 of 93

Group Exercise Exercise Can We Provide Charter Service? Review the Various Scenarios and Determine if The Transit Agency Can Provide the Requested Charter Service FTA s New Charter Regulations Page 63 of 93

Complaints and Enforcement Module 4

Overview New SAFETEA-LU Mandated Enforcement Mechanisms Registration Challenges Advisory Opinions Cease and Desist Orders Violation Complaints FTA s New Charter Regulations Page 65 of 93

Registration Challenges Private Operators Challenging a Private Charter Operator Registration Required Information Name and Address of Each Entity That is the Subject of the Complaint A Concise Statement of Why the Private Charter Operator Should Not Be Listed FTA s New Charter Regulations Page 66 of 93

Registration Challenges Private Operators Filing a Complaint is an 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 FTA s New Charter Regulations Page 67 of 93

Registration Challenges - QHSO Challenging a Qualified Human Service Organization Required Information Name and Address of Each Entity That is the Subject of the Complaint A Concise Statement of Why the QHSO Should Not Be Listed FTA s New Charter Regulations Page 68 of 93

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 FTA s New Charter Regulations Page 69 of 93

Registration Challenges - FTA 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 FTA s New Charter Regulations Page 70 of 93

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 Claims FTA s New Charter Regulations Page 71 of 93

Registration Challenges - FTA FTA Will Rule Within 30 Days of Filing of Challenge Response Permit Registrant to Remain on List and Reasons Why Length of Time Off List if Removed (Up to Three Years) FTA s New Charter Regulations Page 72 of 93

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 FTA s New Charter Regulations Page 73 of 93

Advisory Opinions Represent the Formal Position of FTA on the Matter Advisory Opinions May be Accompanied by Issuance of a Cease and Desist Order FTA s New Charter Regulations Page 74 of 93

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 FTA s New Charter Regulations Page 75 of 93

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 FTA s New Charter Regulations Page 76 of 93

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 FTA s New Charter Regulations Page 77 of 93

Cease and Desist Orders Transit System Response Response Required in Three Business Days Point-by-Point Rebuttal Should be Supplied FTA s New Charter Regulations Page 78 of 93

Violation Complaints Formal Process Private Operator Complaint Transit System Answer Private Operator Reply Transit System Rebuttal Specified Timelines for Each Step in Process FTA s New Charter Regulations Page 79 of 93

Violation Complaints 1/5-4/4 90 Days 4/4-5/4 30 Days 5/4-6/3 30 Days 6/3-6/23 20 Days 6/23-7/3 10 Days Complaint Answer Reply Rebuttal 1/1/08 7/31/08 1/5/08 Date of Alleged Violation 4/4/08 Deadline for Filing Complaint 5/4/08 FTA Notifies System 6/3/08 Transit System Answer 6/23/08 Charter Operator Reply 7/3/08 Transit System Rebuttal Transit System Action Private Charter Operator Action FTA Action FTA s New Charter Regulations Page 80 of 93

Violation Complaints FTA May Dismiss a Complaint Outside FTA s Jurisdiction Complaint Deemed Unwarranted Lack of Legal Standing of Complainant Party FTA s New Charter Regulations Page 81 of 93

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 FTA s New Charter Regulations Page 82 of 93

Violation Complaints - Investigation FTA May Appoint a Presiding Official 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 FTA s New Charter Regulations Page 83 of 93

Violation Complaints - Investigation Presiding Official (PO) Submits Findings and Recommendations to FTA Chief Counsel Within 110 Days of Referral Requested Extensions May Delay Ruling FTA s New Charter Regulations Page 84 of 93

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 FTA s New Charter Regulations Page 85 of 93

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 FTA s New Charter Regulations Page 86 of 93

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 FTA s New Charter Regulations Page 87 of 93

FTA Ombudsman Crystal Frederick Ombudsman for Charter Services Federal Transit Administration, 1200 New Jersey Ave., SE. Room E54 410 Washington, DC 20590 (202) 366 4063 ombudsman.charterservice@dot.gov FTA s New Charter Regulations Page 88 of 93

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 FTA s New Charter Regulations Page 89 of 93

Additional Resources Transit Agency Fact Sheet http://www.fta.dot.gov/documents/fact_sheet- _Charter_Service_Final_Rule.ppt Private Charter Operators Fact Sheet http://www.fta.dot.gov/documents/charter_fin al_rule-private_operator_fact_sheet.ppt FTA s New Charter Regulations Page 90 of 93

Review FTA Questions and Responses FTA s New Charter Regulations Page 91 of 93

Adjourn Good Luck in Using This Information at Your Own Transit Programs FTA s New Charter Regulations Page 92 of 93

Presenter Richard Garrity, Senior Associate RLS & Associates, Inc. 3131 S. Dixie Highway, Suite 545 Dayton, OH 45439 (937) 299-5007 Direct Line: (910) 328-5770 richg@cris.com FTA s New Charter Regulations Page 93 of 93