Government
Affairs |  |
Docket Management Facility
U. S. Department of Transportation
Room
PL-401
400 Seventh Street, S.W.
Washington, DC 20590-0001
RE: DOT
DMS Docket Number OST - 2005 - 20112
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in Adobe PDF Format)
Dear Reviewing Officials:
In a January 26,
2005, Federal Register Notice of Regulatory Review, the Department of Transportation
(DOT) announced its intent to conduct a review of its existing regulations and
invited the public to participate in a comment process designed to help the department
improve its rules to make them more effective and less costly and burdensome.
In that regard, the American Public Transportation Association (APTA) is pleased
to submit the following comments on behalf of the public transportation industry
and in support of the department's stated goal that "[t]here should be no
more regulations than necessary and those that are issued should be simpler, more
comprehensible, and less burdensome."
About APTA
APTA
is a nonprofit international association of over 1,500 public and private member
organizations including transit systems and commuter rail operators; planning,
design, construction, and finance firms; product and service providers; academic
institutions; transit associations and state departments of transportation. APTA
members serve the public interest by providing safe, efficient, and economical
transit and paratransit services and products. Over ninety percent of persons
using public transportation in the United States and Canada are served by APTA
member systems.
Introduction
APTA's member organizations
are subject to the rules and guidance of the Department's Federal Transit and
Federal Railroad Administrations, as well as to those of a number of other departmental
agencies, including the Federal Highway Administration, the Federal Motor Carrier
Safety Administration, and the National Traffic Safety Administration. APTA is
pleased with the cooperative working relationship it has with each of these modes
and the secretary's office, and offers the following comments in an effort to
improve the regulatory programs of the department to the benefit of our members,
the riders of public transit and the department.
Summary
of APTA Position
APTA supports the following broad regulatory principles
-
-
The rulemaking process should be as transparent as possible so
that all rulings, interpretations and guidance of DOT and its agencies are available
to the public, especially affected entities and individuals, quickly and easily.
Rulemakings
should be reviewed, updated and revised from time to time to address significant
interpretations, rulings and changes in circumstances.
- Significant
departmental and/or modal agency policies and guidance should be subject to appropriate
notice and comment procedures.
General Comments
Enhanced
Transparency
Much attention rightly is focused on the rulemaking process
itself: notice and comment periods; consideration of comments; and publication
of a final rule. But no rule can be written to cover every conceivable situation
that could arise under it, and consequently over time a considerable number of
interpretations and rulings about the rule inevitably are made. Such rulings and
interpretations contain valuable information that should publicly be available
as soon as decided upon by the enforcing agency. Ongoing communication to and
consultation with affected parties is always desirable.
Many federal agencies
now are using the Internet successfully to improve communications. It would seem
relatively easy for agencies to use this technology to keep the public and interested
parties informed about recent rulings and guidance on a regular basis. While weekly
postings would be ideal, the department and its modal administrations could establish
some other reasonable period - e.g., monthly - to update and post matters on a
web site. In this regard, the Federal Transit Administration is to be commended
for routinely posting on its web site requests for waivers, rulings and related
issues under its Buy America program. We would urge that other key programs similarly
have information routinely and quickly made available on the appropriate web site
- letters of findings under the Americans with Disabilities Act, charter bus decisions,
and the like.
Updating of Rulemakings Triggering Interpretations and
Rulings
While any effort to make rulings and interpretations more readily
available is very useful, there comes a time when the existence of a number of
rulings and interpretations suggests that the underlying rule itself should be
reviewed or possibly updated. This may be true even of a rule not considered "significant"
by the department.
The existence of a growing body of rulings and interpretations
under a rule should at some point trigger a policy review. The review should cause
federal policy makers to ask basic questions about the affected rule and reflect
upon the rule's impact and practical effect: Is the rule working as intended?
Is the rule clear? Have issues arisen that need clarification in the rule itself?
How have circumstances changed since the rule was promulgated? Depending on the
answers to those questions, a new rulemaking may be called for.
Significant
Policies Should Be Subject to Notice and Comment
In contrast to federal
agency regulations, which are issued in proposed form and subject to comment and
agency revision, agency circulars, letters or other policy statements sometimes
are issued without the benefit of the same public review and comment process.
Unfortunately, such documents often carry the same weight and penalties as regulations.
For example, last year the department, in response to a letter from the Department
of Treasury's Assistant Secretary for Tax Policy, suspended the review of fifteen
tax-advantaged leasing transactions transit systems then had pending before the
FTA. Without notice or an opportunity for comment, a practice that transit systems
had lawfully engaged in for a number of years to generate critical revenues summarily
was suspended. While subsequent legislation ended such tax-advantaged leasing
transactions going forward, it pointedly "grandfathered" the fifteen
transactions affected by the Treasury letter and authorized them to be reviewed
under the rules in effect when they were suspended.
It is thus APTA policy
that any substantive federal policy statement - whether issued as guidance, policy,
regulatory interpretation or a letter - should be subject to at least 90 days
prior notice and comment before becoming effective. It should clarify specifically
to whom and under what circumstances it applies. Finally, all such guidance should
be available for public review.
Conclusion
APTA
appreciates this opportunity to present broad views on the Department of Transportation
regulatory process. We look forward to continuing the close and cooperative relationship
we have with the department and its modal administrations.
If we may supply
further information in this matter, please contact Daniel Duff of APTA's Government
Affairs Department at (202) 496-4860 or email dduff@apta.com.
Sincerely
yours,
William
W. Millar
President
WWM/cbo
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