December 15, 2008
In this issue of
15 Bids & Proposals
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Rulemaking: A Look Back - and a Look Forward
By James LaRusch
APTA Chief Counsel
As we near 2009, looking toward the transition to the Obama administration and the final nine months of SAFETEA-LU, there are a number of regulatory issues that could well make dramatic changes in our industry. Here are some of them and why they may be critical to your company or agency.
What is left pending for the new administration? Plenty!
In February 2006, U.S. DOT published a Notice of Proposed Rulemaking (NPRM) titled Transportation for Individuals with Disabilities. The proposed rule continued months of controversy over “guidance” documents issued by U.S. DOT in September 2005 as “the official views of the Department” on just what the Americans with Disabilities Act (ADA) requires public transit agencies to do to accommodate their riders with disabilities—requirements far beyond anything the industry had seen in the entire history of the ADA.
The 2005 guidance and 2006 NPRM dictated full-length level boarding for commuter and intercity trains, modification of paratransit practices that had been rejected by the federal courts, and allowance of Segway devices on buses and trains, with no regard for the staggering costs and dangerous conditions these proposals would require. APTA and the industry responded, filing hundreds of comments detailing transit’s extensive accommodation of riders with disabilities, safety concerns, and the practical effects of unfunded mandates to spend hundreds of millions of dollars to make these changes.
Although U.S. DOT officials have repeatedly hinted that final resolution of the rulemaking was near, we have seen no final rule or revocation of the NPRM in the almost two-and-a-half years since the close of the comment period. APTA will be watching closely as the new administration reviews and considers how best to resolve these issues.
Tripper service in support of schools came to the forefront of the regulatory scene this past spring when, contrary to 30 years of Federal Transit Administration practice and federal court decisions, FTA proposed (and, in September, issued) a new interpretation of its long-standing regulation on school service. This new interpretation threatens to abandon tens of thousands of students in districts that have relied on public transportation tripper service for decades and have no means of obtaining yellow school bus service.
Compounding the problem (the topic of our last column), FTA issued an NPRM that would enshrine these notions of what is “exclusive” service for schools and the meaning of legitimate tripper service under federal transit law. Published in the Nov. 18 Federal Register, the NPRM is open for public comment until Feb. 17, 2009, so the final decision on the proposal will rest with the next administration.
Along with the U.S. DOT ADA proposal, APTA has highlighted this as a high priority regulatory issue with President-Elect Barack Obama’s transition team.
FTA published a proposed revision of its New Starts regulation on Aug. 3, 2007. APTA, its members, and even influential Members of Congress found serious shortcomings in the proposal, including FTA’s insistence that no project could be recommended for funding without a “medium” cost-effectiveness rating.
While some may think this is a reasonable requirement, the mischief of the proposed requirement is hidden in the narrow definition of “cost-effectiveness” in FTA’s New Starts language. The multiple measures of project evaluation directed in SAFETEA-LU would be set aside in favor of a single-minded focus on travel time. Land use and economic development benefits of transit projects would be almost ignored and, with FTA proposing to include relative weights of evaluation factors in the regulation itself, there would be little hope of elevating their importance without a major regulatory action.
Additionally, the proposal would offer little or no means of streamlining the process for Small Starts projects, plus it includes various provisions that would favor High Occupancy Toll lane projects.
The proposed regulation prompted strong action. APTA’s comments on the proposal stretched to 33 pages of highly technical text. The comments were the most extensive APTA has filed in any of the dozens of rulemakings that flowed from SAFETEA-LU; they were quickly followed by decisive action by Congress, which forbade FTA from implementing the proposed regulation within Fiscal Year 2008 appropriations legislation.
As we enter the new administration and the end of the Continuing Resolution that has funded FTA and U.S. DOT since Oct. 1, this proposal will require a fresh look by the incoming FTA leadership. APTA also included this on its list of high priority regulatory issues reported to Obama’s transition team.
What Else Can We Expect?
Transit agencies throughout the country have been wrestling with the confusion and internal inconsistency of FTA’s new Charter Service regulation since it took effect in the spring. Intended to clarify the definition of charter service and simplify the analysis of proposed services for transit agencies, the rule has instead further muddied the situation with declarations that service that occurs 90 days per year is “irregular,” varying interpretations of how an agency should determine if a fare is “premium” for purposes of the regulation, and one Advisory Opinion that concluded a service is and is not charter when analyzed under different subsections of the rule.
The concept of Advisory Opinions has provided an end run to the formal complaint process that allows a small minority of private operators to force both FTA and transit agencies to spend thousands of dollars answering ill-defined grievances while compiling decisions that cannot be searched or reviewed without undertaking a time-consuming review of individual documents. Clearly, the field of charter service regulation will require timely, decisive action as the new FTA leadership team takes the reins.
Several rulemakings undertaken this year by the U.S. Department of Health and Human Services may also be reviewed. A proposal to allow states “flexibility” to drop transportation benefits for entire classes of Medicaid beneficiaries, another that would severely limit reimbursement of transit agencies that provide transportation services for the remaining beneficiaries, and a third that cuts school transportation funding for children covered by Medicaid (and that could well push thousands of those children into paratransit systems) are just a few of the non-transportation rulemakings APTA will be tracking.
The APTA web site, www.apta.com, will provide updates on these and other regulatory issues. Be sure to check the site for upgrades, including the ability to obtain RSS feeds that will alert you to new postings on the SAFETEA-LU Rulemaking and Notices page.