[Federal Register: January 27, 2010 (Volume 75, Number 17)]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
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.
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.
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
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
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
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
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, ]
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
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 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
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.
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
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).
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
(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
(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
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.
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
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
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
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
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.
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
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
FMCSA received one comment noting that special operations can
include regular route transportation of passengers.
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
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.
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
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
FMCSA agrees that these characteristics support its conclusion that
Fullington is not operating the route in question as an intrastate
commuter bus operation.
One commenter argued that Fullington was obligated to have "closed
out" its State operating authority prior to obtaining Federal
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
Dated: January 19, 2010.
Anne S. Ferro,
[FR Doc. 2010-1645 Filed 1-26-10; 8:45 am]
BILLING CODE P