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Development of FTA Regulations & Cirulars
This document summarizes FTA’s regulation and circular development processes. Both processes include opportunities for public participation, which are described here so that readers may learn how to take part in these opportunities. FTA regulations and circulars govern the agency’s financial assistance programs for public transportation. As such, the development of regulations and circulars is very significant for communities, grant recipients, and organizations involved with transportation.
What requirements does FTA follow when issuing regulations and circulars?
The Administrative Procedure Act of 1946 (APA) prescribes how Federal agencies can issue regulations. In addition, FTA follows the U.S. Department of Transportation’s requirements, relevant presidential executive orders and legislation in issuing regulations and circulars.
What is a regulation?
When FTA refers to a regulation, it is typically referring to a substantive rule. The APA defines a rule as an agency statement designed to 1) “implement, interpret, or prescribe law or policy”; or 2) describe the agency’s “organization, procedure, or practice requirements.” Because of the variety in significance and enforceability of agency rules, different procedures apply for developing different types of rules. A substantive rule is one that imposes a binding requirement. A properly issued regulation has the same force of law as a statute passed by Congress.
Some examples of FTA regulations include:
- The regulations implementing the Americans with Disabilities Act of 1990, requiring public transportation services to be accessible to individuals with disabilities.
- The New Starts regulation, governing the grant program for construction of major public transportation infrastructure such as rail systems and bus transfer centers.
- Planning regulations requiring state and local governments to develop comprehensive transportation plans in order to receive federal transit and highway assistance.
- Environmental regulations, requiring environmental reviews when considering transportation projects.
- The Charter Bus Service regulation, prohibiting public transportation agencies that receive FTA financial assistance from providing charter bus service unless there are no private charter operators willing and able to provide the charter service.
Since awarding grants is FTA’s primary function, regulations generally apply to grantees. (A grantee is an entity that receives FTA money for a public transportation project.)
Where are FTA’s regulations published?
All regulations are printed in the Code of Federal Regulations (CFR). FTA’s regulations are found in Part 600 of Title 49, the transportation section of the CFR.
What triggers the creation or revision of a regulation?
Several different types of events can trigger the regulatory process, including:
- legislation,
- Congressional hearings,
- executive orders, and
- court orders.
In FTA’s case, the transportation reauthorization legislation passed by Congress in August 2005 (“Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users,” or SAFETEA-LU [hyperlink to reauthorization page]) triggered the revision of several existing regulations and the development of some new regulations that will implement new requirements in the law.
How can the public learn about proposed rules and regulations?
When FTA develops a regulation, it provides notice and an opportunity for the public to comment. This is required by the APA. To accomplish this, FTA publishes a Notice of Proposed Rulemaking (NPRM) in the Federal Register. The Federal Register is the Federal government’s official daily publication for Federal agency rules, proposed rules, and notices, as well as executive orders and other presidential documents.
Where can I find the Federal Register?
FTA includes a link to FTA material in the Federal Register on its public website, www.fta.dot.gov, as well as through the U.S. Department of Transportation’s Docket Management System, http://dms.dot.gov. You can also access the Federal Register online at http://www.gpoaccess.gov/fr/, or in hard copy.
What will the NPRM in the Federal Register tell me?
The NPRM describes the proposed new regulation or proposed changes to an existing regulation. A Federal agency is only allowed to issue regulations if authorized to do so by Congress, so the NPRM also tells you the statutory authority under which the agency is proposing the regulation. The NPRM also explains the background and history of the problem that sparked the regulation, and avenues for public participation.
What happens after FTA publishes the NPRM in the Federal Register?
Once the NPRM is published, it is open for public comment, typically for 30 to 90 days, although that period can be extended depending on circumstances.
If I have a comment about the proposed regulation, how do I share it?
Comments may be submitted in several different ways:
- By electronic submission
You may submit comments electronically through the U.S. Department of Transportation Docket Management System, http://dms.dot.gov/. Simply select the "ES Submit" button located at the top and bottom of the screen.
- By mail
You can send comments to the
Docket Management Facility
U.S. Department of Transportation
400 Seventh Street, SW
Nassif Building
Room PL-401
Washington, DC 20590-0001
- By hand delivery
You can deliver comments personally to 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.
- By FAX
You can FAX comments to the Docket Management Facility at 202-493-2251.
Filings must indicate the assigned docket number and subject matter.
How else does FTA get public feedback on proposed regulations?
In addition to accepting written comment, FTA frequently holds public meetings or listening sessions to hear directly from interested parties and those who would be impacted by the proposed regulation. After the publication of an NPRM, all meetings held by the agency concerning the NPRM must be open to the public.
Sometimes, FTA will also publish what is called an “Advance Notice of Proposed Rulemaking” (ANPRM) or a “Notice and Request for Comment”. FTA submits this before the NPRM. An ANPRM or Notice and Request for Comment involves the public very early in the process, before FTA staff have drafted the proposed regulation. It poses questions to the public in order to gather information, analysis, and stakeholder perspectives that inform the draft of the proposed regulation.
What does FTA do in response to public comments? Does it consider them?
Yes. FTA reviews, analyzes, and considers public comment received in its efforts to develop and issue regulations.
Do other parts of the government review the regulation?
Regulations that the President’s Office of Management and Budget (OMB) determines to be “significant”1 are reviewed prior to publication by OMB and the Office of the Secretary of Transportation. Those Departments of the U.S. Government that have a stake in the rulemaking may also review and offer input during the process before it is officially published.
What happens after FTA considers public comments?
FTA may make appropriate changes to the proposed regulation based on comments received. FTA then publishes the final regulation, referred to as a “final rule,” in the Federal Register. In the final rule, FTA will summarize and respond to all substantive comments received. It will also list the effective date of the regulation.
Sometimes, before issuing a final rule, FTA will issue a Supplemental Notice of Proposed Rulemaking (SNPRM) to solicit feedback on the revised proposal. In that case, FTA considers the additional comment and then proceeds to issue the final rule.
Occasionally, circumstances require that FTA issue a rule that becomes effective immediately. These rules are called Interim Final Rules (IFR) or Direct Final Rules. In each instance, FTA will set out the specific reasons why the rule must go into effect immediately. In each case, the public will still have an opportunity to comment on the rule and FTA may adjust the rule based on the comments received. Direct Final Rules are usually issued in situations in which the agency does not believe the subject matter will generate any public comments. If public comments are received for a Direct Final Rule, then the agency will start over with an NPRM. An Interim Final Rule, on the other hand, usually responds to an emergency situation. In that case, the rule goes into effect immediately in order to address the emergency situation.
Where are regulations listed thereafter?
After publication in the Federal Register, the final rule is incorporated into the CFR. The transportation section of the CFR is published every October 1.
The Office of the Federal Register also prints a “List of Sections Affected” (LSA) each month that cumulatively lists regulations that have been changed since the last annual issue. FTA will also post the final regulation text on its public website.
What is an FTA circular?
FTA circulars provide instructions to grantees or other stakeholders on how FTA grants will be administered. This guidance provides grantees with direction on program specific issues and statutory requirements. Grantees are required to comply with all circulars after signing the agreement accepting federal financial assistance.
Must FTA provide opportunities for comment on circulars?
Yes. A new requirement under SAFETEA-LU requires FTA to provide notice and an opportunity for comment when developing circulars that impose binding obligations. A document that imposes a “binding obligation” is defined in SAFETEA-LU as one that grants rights, imposes obligations on grant recipients, produces significant effects on private interests, or affects a significant change in existing policy.
How is FTA going to meet this new requirement in SAFETEA-LU?
In a notice published in the Federal Register on November 21, 2005, FTA proposed to meet this new requirement by establishing a docket in the Department’s Docket Management System and posting the entire proposed circular in the docket. FTA will then publish a notice in the Federal Register to announce the document’s availability and the time period for public comment. The public may then submit comment by the same means as for regulations (see question above). FTA may also hold public meetings to hear directly from interested parties, and may also solicit public comment early on, before the proposed circular is drafted.
How can I find the final circulars?
FTA will post final circulars in the docket and on its website. FTA will also disseminate circulars broadly to grantees and other stakeholders.
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1 Executive Order 12866 defines a “significant” regulation as one that “may 1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; 2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; 3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or 4) Raise novel legal or policy issues arising out of legal mandates, the President’s priorities, or the principles set forth in the Executive order.”
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