Notice of Final Policy Statement for Implementation of Notice and Comment Procedures for Documents Imposing “Binding Obligations”, 32380-32382 [06-5072]

Download as PDF 32380 Federal Register / Vol. 71, No. 107 / Monday, June 5, 2006 / Notices allocation of fees as required by Section 6(b)(4) of the Act.6 In connection with the adoption of options licensing fees for GDX options, the Exchange believes that charging an options licensing fee, where applicable, to all Market Participant orders, except for customer orders, is reasonable given the competitive pressures in the industry. Accordingly, the Exchange seeks, through this proposal, to better align its transaction charges with the cost of providing products. 2. Statutory Basis The Exchange believes that the proposed fee change is consistent with Section 6(b)(4) of the Act 7 regarding the equitable allocation of reasonable dues, fees, and other charges among its members and other persons using its facilities. B. Self-Regulatory Organization’s Statement on Burden on Competition The Exchange believes that the proposed rule change will not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. C. Self-Regulatory Organization’s Statement on Comments on the Proposed Rule Change Received From Members, Participants or Others No written comments were solicited or received with respect to the proposed rule change. III. Date of Effectiveness of the Proposed Rule Change and Timing for Commission Action The foregoing proposed rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act 8 and Rule 19b–4(f)(2) thereunder 9 because it establishes or changes a due, fee, or other charge imposed by the Exchange. At any time within 60 days of the filing of the proposed rule change, the Commission may summarily abrogate such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. cprice-sewell on PROD1PC66 with NOTICES IV. Solicitation of Comments Interested persons are invited to submit written data, views, and 6 Section 6(b)(4) of the Act states that the rules of a national securities exchange must ‘‘provide for the equitable allocation of reasonable dues, fees, and other charges among its members and issuers and other persons using its facilities.’’ 15 U.S.C. 78f(b)(4). 7 15 U.S.C. 78f(b)(4). 8 15 U.S.C. 78s(b)(3)(A)(ii). 9 17 CFR 19b–4(f)(2). VerDate Aug<31>2005 15:33 Jun 02, 2006 Jkt 208001 arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods: DEPARTMENT OF TRANSPORTATION Electronic Comments Notice of Final Policy Statement for Implementation of Notice and Comment Procedures for Documents Imposing ‘‘Binding Obligations’’ • Use the Commission’s Internet comment form (https://www.sec.gov/ rules/sro.shtml); or • Send an e-mail to rulecomments@sec.gov. Please include File No. SR–Amex–2006–51 on the subject line. Federal Transit Administration [Docket Number: FTA–2005–22658] AGENCY: Federal Transit Administration, DOT. ACTION: Final notice. SUMMARY: This final notice establishes the Federal Transit Administration’s Paper Comments (FTA) policy concerning notice and comment for FTA documents that • Send paper comments in triplicate impose binding obligations. This final to Nancy M. Morris, Secretary, policy statement is consistent with the Securities and Exchange Commission, Safe, Accountable, Flexible, Efficient Station Place, 100 F Street, NE., Transportation Equity Act of 2005—a Washington, DC 20549–1090. Legacy for Users (SAFETEA–LU) amendments to FTA’s administrative All submissions should refer to File provisions statute. Number SR–Amex–2006–51. This file number should be included on the DATES: Effective Date: June 5, 2006. subject line if e-mail is used. To help the FOR FURTHER INFORMATION CONTACT: Commission process and review your Linda Lasley, Assistant Chief Counsel, comments more efficiently, please use Legislation and Regulations Division, only one method. The Commission will Office of the Chief Counsel, Federal post all comments on the Commission’s Transit Administration, 400 Seventh Internet Web site (https://www.sec.gov/ Street, SW., Room 9316, Washington, rules/sro.shtml). Copies of the DC 20590, (202) 366–4011 or submission, all subsequent Linda.Lasley@dot.gov. amendments, all written statements SUPPLEMENTARY INFORMATION: with respect to the proposed rule Availability of the Final Policy change that are filed with the Statement and Comments Commission, and all written communications relating to the A copy of this policy statement, proposed rule change between the comments, and material received from Commission and any person, other than the public are part of docket FTA–2005– those that may be withheld from the 22658 and are available for inspection public in accordance with the or copying at the Docket Management provisions of 5 U.S.C. 552, will be Facility, U.S. Department of available for inspection and copying in Transportation, Room PL–401 on the the Commission’s Public Reference plaza level of the Nassif Building, 400 Room. Copies of the filing also will be Seventh Street, SW., Washington, DC available for inspection and copying at between 9 a.m. and 5 p.m., Monday the principal office of Amex. All through Friday, except Federal holidays. comments received will be posted You may retrieve the rule and without change; the Commission does comments online through the Document not edit personal identifying Management System (DMS) at: https:// information from submissions. You dms.dot.gov. Enter docket number should submit only information that 22658 in the search field. The DMS is you wish to make available publicly. All available 24 hours each day, 365 days submissions should refer to File each year. Electronic submission and Number SR–Amex–2006–51 and should retrieval help and guidelines are be submitted on or before June 26, 2006. available under the help section of the Web site. For the Commission, by the Division of An electronic copy of this document Market Regulation, pursuant to delegated may also be downloaded by using a authority.10 computer, modem and suitable Nancy M. Morris, communications software from the Secretary. Government Printing Office’s Electronic [FR Doc. E6–8644 Filed 6–2–06; 8:45 am] Bulletin Board Service at (202) 512– BILLING CODE 8010–01–P 1661. Internet users may also reach the Office of the Federal Register’s home 10 17 CFR 200.30–3(a)(12). page at: https://www.nara.gov/fedreg and PO 00000 Frm 00080 Fmt 4703 Sfmt 4703 E:\FR\FM\05JNN1.SGM 05JNN1 Federal Register / Vol. 71, No. 107 / Monday, June 5, 2006 / Notices the Government Office’s Web page at: https://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. cprice-sewell on PROD1PC66 with NOTICES 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. VerDate Aug<31>2005 15:33 Jun 02, 2006 Jkt 208001 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 email, when FTA opens a new docket and posts a document. We strongly encourage the use of this system, which can be accessed at https://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 PO 00000 Frm 00081 Fmt 4703 Sfmt 4703 32381 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 caseby-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 E:\FR\FM\05JNN1.SGM 05JNN1 cprice-sewell on PROD1PC66 with NOTICES 32382 Federal Register / Vol. 71, No. 107 / Monday, June 5, 2006 / Notices 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 ‘‘nonbinding’’ 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 VerDate Aug<31>2005 15:33 Jun 02, 2006 Jkt 208001 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 fourdigit 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 PO 00000 Frm 00082 Fmt 4703 Sfmt 4703 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 https://www.fta.dot.gov. APTA encouraged FTA to publish administrative decisions of a quasijudicial 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] BILLING CODE 4910–57–M DEPARTMENT OF TRANSPORTATION Maritime Administration [USCG–2005–22611] Neptune LNG, L.L.C., Liquefied Natural Gas Deepwater Port License Application; Preparation of Environmental Impact Statement Maritime Administration, DOT. Notice of availability; notice of public meeting; request for comments. AGENCY: ACTION: SUMMARY: The Maritime Administration (MARAD) announces the availability of E:\FR\FM\05JNN1.SGM 05JNN1

Agencies

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


=======================================================================
-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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 Linda.Lasley@dot.gov.

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: https://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: https://www.nara.gov/fedreg and

[[Page 32381]]

the Government Office's Web page at: https://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 https://
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

[[Page 32382]]

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 https://
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]
BILLING CODE 4910-57-M

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.