Regulatory & Legal Issues |
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September 6, 2002
Mr. Kirk K. Van Tine
General Counsel
U.S. Department of Transportation
400 Seventh Street, S.W.
Room 10428
Washington, DC 20590
Dear Mr. Van Tine:
I write on behalf of the more than 1,400 member organizations of the American Public Transportation Association (APTA) regarding the U.S. Court of Appeals for the Second Circuit's request that the Department of Transportation (DOT) provide an interpretation of the Department's paratransit regulations at 49 CFR Part 37. The Court of Appeals makes its request in connection with a case now before it, Anderson, et al. v. Rochester-Genesee Regional Transportation Authority, et al. We respectfully request the Department to consider our views as it develops its response to the Court of Appeals.
About APTA
APTA is a nonprofit international trade association of more than 1,400 public and private member organizations including transit systems and commuter railroads; planning, design, construction and finance firms; product and service providers; academic institutions, and state associations and departments of transportation. APTA members serve the public interest by providing safe, efficient and economical transit services and products. Over ninety percent of persons using public transportation in the United States and Canada are served by APTA members. The Rochester-Genesee Regional Transportation Authority is an APTA member.
Commitment to the Americans with Disabilities Act (ADA)
DOT's paratransit regulations were promulgated after a comprehensive and broad consultative process. Affected stakeholders - transit providers, groups representing persons with disabilities, and others - participated in and made their views known during this outreach effort before final regulations were issued in 1991. The final DOT ADA regulations reflect those careful deliberations.
Our members have been working within the context of those regulations for the past eleven years to comply with the requirements of the ADA, and have a successful record in that regard. In cities and communities around the country, public transit systems are providing critical paratransit mobility services for persons with disabilities unable to use fixed route public transportation. We are proud of the fact that currently 85 percent of all public transportation vehicles are accessible to persons with disabilities, in contrast to the 40 percent that were accessible just before the ADA was enacted. In 2001, 113 million trips were taken in the United States on paratransit vehicles.
APTA is strongly supportive of the Americans with Disabilities Act. APTA's Access Committee has been actively addressing ADA issues for our members, and we continue to sponsor ADA-related activities and events, including conferences and workshops, that enable our members to share information and paratransit best practices so they can improve services to all customers including persons with disabilities.
Non-Regulatory Guidance
In 1999, certain informal letters of interpretation from the Department's Federal Transit Administration (FTA) provided new and expansive interpretations of the Department's ADA regulations on matters of significant import relating to paratransit trip denials and capacity constraints. In our view, these "interpretations" went well beyond the plain language and meaning of the Department's ADA regulations and created new regulatory policy. In contrast to the careful outreach effort employed when the DOT's rules first were drafted, the FTA interpretations were issued without public comment or the careful weighing of views and perspectives of those affected by the interpretations. Moreover, as letters of interpretation addressing specific fact situations, and in contrast to the Federal Register public rulemaking process, they were not initially widely promulgated in the industry.
Most significantly, the interpretations are at odds with the understandings regarding paratransit operations that the transit industry has had since 1991 based upon the DOT regulations. This created a lack of certainty and consistency of regulatory application that has left the transit industry in a quandary as to how to assure that their operations are compliant with the ADA. Further, the interpretations have become the basis for lawsuits against public transportation systems around the country, including the instant case in Rochester.
Request for Action
Until now, neither FTA nor the Department has interceded in any of these lawsuits to clarify what deference FTA's informal letters of interpretation of the DOT regulations should be accorded. Apparently the Court of Appeals recognizes the need for clarification in light of its order inviting the Department to comment on the critical issues raised by the FTA letters of interpretation. We agree that clarification is needed. Accordingly, to bring clarity and consistency of application to this important area, we ask the Department to withdraw the FTA letters at issue and proffer to the Court a clear statement of that which should be accorded deference - the original ADA statute, the language of the regulations and their accompanying explanatory language now included as an appendix to the rules.
The understandings of the transit industry on the specific matters at issue have been communicated to DOT staff in a variety of documents, and a number of amicus briefs have been filed by public transit systems in this regard. See, for example, the amicus brief filed in the Rochester case by the New York City Transit Authority for a careful analysis of the issues. APTA supports the views expressed in this amicus brief, which presents an accurate analysis of how the informal letters of interpretation issued by FTA have departed from the letter and spirit of the original regulations and legislation and created extraordinary challenges to transit systems around the country.
Conclusion
APTA urges the Department of Transportation to affirm the views expressed in the Rochester amicus brief, and return to the original intent of the ADA regulations and legislation. Thank you for your consideration of our views. We would be pleased to provide any additional information you may request. I may be reached at (202) 496-4860, or by e-mail at dduff@apta.com.
Sincerely yours,
Daniel Duff
Chief Counsel and Vice President
for Government Affairs
DD/cbo
Click here to read STATEMENT OF THE AMICUS CURIAE NEW YORK CITY TRANSIT AUTHORITY
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