[Federal Register Volume 71, Number 107 (Monday, June 5, 2006)]
[Notices]
[Pages 32380-32382]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-5072]


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DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

[Docket Number: FTA-2005-22658]


Notice of Final Policy Statement for Implementation of Notice and 
Comment Procedures for Documents Imposing ``Binding Obligations''

AGENCY: Federal Transit Administration, DOT.

ACTION: Final notice.

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SUMMARY: This final notice establishes the Federal Transit 
Administration's (FTA) policy concerning notice and comment for FTA 
documents that impose binding obligations. This final policy statement 
is consistent with the Safe, Accountable, Flexible, Efficient 
Transportation Equity Act of 2005--a Legacy for Users (SAFETEA-LU) 
amendments to FTA's administrative provisions statute.

DATES: Effective Date: June 5, 2006.

FOR FURTHER INFORMATION CONTACT: Linda Lasley, Assistant Chief Counsel, 
Legislation and Regulations Division, Office of the Chief Counsel, 
Federal Transit Administration, 400 Seventh Street, SW., Room 9316, 
Washington, DC 20590, (202) 366-4011 or [email protected].

SUPPLEMENTARY INFORMATION:

Availability of the Final Policy Statement and Comments

    A copy of this policy statement, comments, and material received 
from the public are part of docket FTA-2005-22658 and are available for 
inspection or copying at the Docket Management Facility, U.S. 
Department of Transportation, Room PL-401 on the plaza level of the 
Nassif Building, 400 Seventh Street, SW., Washington, DC between 9 a.m. 
and 5 p.m., Monday through Friday, except Federal holidays.
    You may retrieve the rule and comments online through the Document 
Management System (DMS) at: http://dms.dot.gov. Enter docket number 
22658 in the search field. The DMS is available 24 hours each day, 365 
days each year. Electronic submission and retrieval help and guidelines 
are available under the help section of the Web site.
    An electronic copy of this document may also be downloaded by using 
a computer, modem and suitable communications software from the 
Government Printing Office's Electronic Bulletin Board Service at (202) 
512-1661. Internet users may also reach the Office of the Federal 
Register's home page at: http://www.nara.gov/fedreg and

[[Page 32381]]

the Government Office's Web page at: http://www.gpoaccess.gov/fr/index.html.

Background

    On August 10, 2005, President Bush signed into law the Safe, 
Accountable, Flexible, Efficient Transportation Equity Act of 2005--a 
Legacy for Users (SAFETEA-LU), which reauthorizes Federal transit, 
highway, and highway safety programs through September 30, 2009. That 
Act amends FTA's administrative procedures contained in 49 U.S.C. 5334. 
The amendment specifically states: ``The Administrator of the Federal 
Transit Administration show follow applicable rulemaking procedures 
under section 553 of title 5 before the Federal Transit Administration 
issues a statement that imposes a binding obligation on recipients of 
Federal assistance under this chapter.'' The amendment also defines a 
``binding obligation'' as: ``a substantive policy statement, rule, or 
guidance document issued by the Federal Transit Administration that 
grants rights, imposes obligations, produces significant effects on 
private interests, or effects a significant change in existing 
policy.''
    On November 21, 2005, FTA published in the Federal Register a 
proposed policy statement for implementing the above requirements (70 
FR 70111). We received seven comments on our proposal, which are 
summarized and responded to below.

A. Rulemaking

    We proposed that when FTA promulgates a ``legislative'' or legally 
binding rule, we will provide notice and an opportunity to comment as 
required by the Administrative Procedure Act (APA) and we will publish 
the rule in the Federal Register. Rules that are designated as 
significant will be reviewed before publication in the Federal Register 
by the Office of the Management and Budget in accordance with 
Department of Transportation (DOT) policies and procedure and Executive 
Order 12866, which sets out regulatory requirements for all executive 
branch agencies. In addition, when Congress authorizes FTA to establish 
a new program, we may issue a rule setting out the basic criteria for 
the new program.
    We received no comments on this portion of our policy statement, 
and, therefore, we adopt our proposal as final.

B. Circulars, Guidance, and Policy Documents

    We also proposed that when FTA issues circulars, guidance documents 
or interpretations, and policy statements in connection with the 
administration of our grant programs, before adopting such documents, 
we will provide notice and an opportunity for the public to comment. We 
stated that we will establish a docket in the Department's Docket 
Management System and post the entire document in the docket. We would 
also publish a notice in the Federal Register announcing the document's 
availability and the time period for providing public comment.
    We received several comments on that proposal. The New Starts 
Working Group (NSWG), a coalition of nearly sixty transit authorities, 
urged us to take a broad view of what constitutes a binding obligation. 
That group also stated we should minimize the use of ``Dear Colleague'' 
letters because those letters are only sent to grant recipients, 
project sponsors, and FTA's regional offices. The group also noted that 
documents should be published in full in the Federal Register.
    In response to NSWG's point on interpreting ``binding obligation'' 
broadly, SAFETEA-LU provides a definition of binding obligation. FTA 
fully intends to follow this definition when it determines what we 
should publish for notice and comment. We agree with NSWG's contention 
that the use of ``Dear Colleague'' letters should be minimized. 
Accordingly, effective as of the date of this notice, FTA will no 
longer use ``Dear Colleague'' letters to impose binding obligations. 
Finally, NSWG did not provide a basis for its statement that documents 
should be published in full in the Federal Register. Given the 
prevalence of Internet accessibility, accessing documents through DOT's 
Docket Management System (DMS) is efficient and preferable as the 
docket is available 24 hours a day through the Internet. In addition, 
DMS provides a List Serve that can notify interested individuals, via 
e-mail, when FTA opens a new docket and posts a document. We strongly 
encourage the use of this system, which can be accessed at http://dms.dot.gov/emailNotification/index.cfm. That being said, from time to 
time, FTA may exercise its discretion and publish some documents in 
full in the Federal Register.
    The American Public Transportation Association (APTA) also urged an 
expansive view of what constitutes a binding obligation. APTA also 
noted that FTA personnel may cite prior decisions that are unpublished, 
unannounced or appear to represent significant changes to prior 
requirements. APTA suggests FTA specifically state that such 
determinations have no application to ``non-involved'' parties; or that 
FTA will subject those determinations to public comment before applying 
the determination to others. APTA did not provide a specific example of 
when FTA personnel have cited such unpublished authority, but an 
individual may request, at any time, that FTA provide the authority for 
our determination. FTA personnel strive for consistency in the 
application of our determinations and requirements. When an 
inconsistency becomes apparent--without a factual basis to support it--
the grantee should request a clarification from FTA.
    Link Transit stated in its comment that FTA should submit any 
compliance, compliant, or audit findings for public comment when those 
findings are different from previously published or documented 
statements by FTA. Link Transit provided an example of FTA determining 
that a grantee should have been reporting each paratransit denial as 
two denials.
    Many of our determinations are based on the unique factual scenario 
presented, and, therefore, a one-size fits all approach is neither 
possible nor desirable. Time and again interested parties have used FTA 
to remain flexible in the application of our requirements in order to 
take into account any special circumstances presented. Compliance, 
complaint, and audit findings are very fact specific and we are 
reluctant to constrain our ability to conduct these proceedings on a 
case-by-case basis. Link Transit's example of paratransit policies is 
beyond the scope of this notice because the Office of the Secretary of 
Transportation (OST) issues the policies affecting paratransit service.
    The New York Metropolitan Transportation Authority (MTA) commented 
that FTA should interpret binding obligations to include the ``Master 
Agreement.'' MTA also questioned whether the requirement for notice and 
comment would apply to oral statements made by FTA personel.
    FTA disagrees with MTA that the Master Agreement should be subject 
to notice and comment. The Master Agreement is a contract entered into 
voluntarily between a potential recipient and FTA. As such, the terms 
negotiated between the parties are subject to contract law principles 
instead of APA rulemaking principles. Likewise, oral statements by FTA 
personnel cannot realistically be subject

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to notice and comment provisions of the APA. FTA personnel attempt to 
provide the most accurate information to interested persons. When 
errors occur, we will address those errors. Application of MTA's 
suggestion, would effectively eliminate all oral or informal advice 
given by FTA to the industry, which would have a chilling effect on a 
grantee's ability to receive funds in a timely fashion.
    Jones and Lester (representing Access Services Incorporated) 
commented that FTA's ADA interpretations were not widely disseminated 
and it was difficult for transit properties to access those 
interpretations.
    As noted earlier, ADA interpretations flow from OST to FTA. Even 
so, because those interpretations involve many operating 
administrations within DOT, FTA works with the industry to apply those 
interpretations to transit. We are also working hard to ensure a wide 
dissemination of those interpretations by posting them on our Web site.
    Smart Growth America (SGA) commented that our proposed standard of 
thirty days for comment is not long enough for stakeholders to review, 
discuss, and weigh in on FTA's binding obligations.
    SGA should be aware that FTA will consider a request for an 
extension of any comment period when the request is supported with a 
reasonable basis for the extension.
    One individual's comments urge FTA to refine its view of ``rights, 
obligations, interests, and policies.'' She also noted that if FTA 
intends for a document to be ``non-binding'' then it should be labeled 
non-binding. The comment goes on to note that, regarding Americans With 
Disabilities Act (ADA), it is difficult to determine the stated agency 
policy and FTA practice and FTA should make clear whether a regulation 
is an FTA regulation or an OST regulation. Additionally, the comment 
suggests FTA provide training to staff so as to avoid making public or 
private statements that treat non-binding information as binding.
    FTA is unclear as to what this individual is referring to by 
``rights, obligations, interests, and policies.'' As noted earlier, 
SAFETEA-LU provides FTA a definition of binding obligation and FTA will 
follow that definition. We disagree with the suggestion of marking non-
binding documents as ``non-binding'' for a few reasons. First, a 
guidance document may restate statutory or legally binding regulatory 
language or may recite legally binding contract language. Thus, 
providing a statement that the guidance is not legally binding may 
mislead many people concerning their legal obligations. Second, we may 
publish material that contains factual information such as census data 
and include guidance on how to use that information. While the document 
is not legally binding, a statute, rule, or even tort law may require 
someone to use that information before taking action. Telling people 
that it is not legally binding may confuse someone who has a duty to 
properly use the information in accordance with other requirements. 
Third, we may advise the public that they can rely on our guidance. 
Sometimes we issue guidance in response to a request from those who 
want to know whether, if they act in a certain way, they will be in 
compliance with a statute or rule. Our response may tell them ``yes, 
you will be considered in compliance;'' that is, based on what they 
have told us, we will not take enforcement action against them if they 
act in accordance with our guidance. Telling such an individual that, 
despite these statements, the guidance is not legally binding may 
defeat the very certainty they are seeking. At a minimum, it will 
create serious confusion over such things as whether we may take 
enforcement action even if they follow our guidance.
    Regarding the difficulty in distinguishing FTA regulations from OST 
regulations, when we issue a regulation, it contains a four-digit 
identifier (2132) for FTA as part of the Regulatory Identification 
Number (RIN). This is also true for OST, whose four-digit identifier is 
2105. In addition to the identifiers, the regulation will contain the 
name OST or FTA and will amend sections of the Code of Federal 
Regulations (CFR) pertaining to transit or to the Secretary's office. 
Thus, FTA currently makes a distinction between our regulations and OST 
regulations. The same holds true for FTA policies.
    Regarding training for FTA staff, we routinely provide training 
sessions for staff to make them aware of whether a document is a 
requirement or guidance. If mistakes happen in this area, we will work 
with affected individuals to correct the error.
    The Disability Rights Education and Defense Fund (DREDF) submitted 
comments in response to Patrisha Piras' comments. That comment 
contained no substantive statements on FTA's proposed policy statement.
    Based on these comments, FTA believes that the approach proposed in 
the November 21, 2005 Notice is appropriate. Accordingly, when FTA 
issues circulars, guidance documents or interpretations, and policy 
statements in connection with the administration of our grant programs 
which impose ``binding obligations'' as defined by SAFETEA-LU, before 
adopting such documents, we will provide notice and an opportunity for 
the public to comment. We will establish a docket in the Department's 
Docket Management System and post the entire document in the docket. We 
will also publish a notice in the Federal Register announcing the 
document's availability and the time period for providing public 
comment. FTA will not use ``Dear Colleague'' letters to impose 
``binding obligations.'' The Master Agreement or compliance, complaint, 
and audit findings are not documents which are subject to the 
requirement for notice and comment.

C. Other Information

    We also proposed that when we distribute material to assist grant 
recipients regarding specific topics of a non-binding nature, we will 
make those documents available on FTA's public Web site at http://www.fta.dot.gov.
    APTA encouraged FTA to publish administrative decisions of a quasi-
judicial nature, U.S. Department of Labor decisions, employee 
protective arrangements, charter bus decisions, and other 
administrative decisions (e.g. bid protests) on the FTA Web site. FTA 
currently posts ADA compliance reviews and Buy America waiver denials 
on our Web site. Bid protests in third-party contracts are routinely 
handled by grantees and not FTA. FTA only becomes involved in appeals 
when there is a Federal interest. FTA has plans in the new future to 
make charter bus decisions available on its Web site and FTA will 
consider the request to post other decisions on its Web site.

    Issued in Washington, DC this 22nd day of May 2006.
Sandra K. Bushue,
Deputy Administrator.
[FR Doc. 06-5072 Filed 6-2-06; 8:45 am]
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