49 CFR Parts 37 and 38 -- Transportation for Individuals With Disabilities at Intercity, Commuter, and High Speed Passenger Railroad Station Platforms; Miscellaneous Amendments, Preamble

Disability Law Coordinating Council (DLCC)

NPRM Proposal

The NPRM proposed codifying the existing coordination mechanism for issuing guidance and interpretations of disability laws and regulations throughout the Department of Transportation. Known as the DLCC, this group consists of representation from the Office of the Secretary, Federal Transit Administration, Federal Highway Administration, Federal Aviation Administration, Federal Motor Carrier Safety Administration, National Highway Traffic Safety Administration, and Federal Railroad Administration. Before any guidance or interpretation documents developed by the DLCC are issued, they must be approved by the General Counsel on behalf of the Department of Transportation as a whole. This ensures that the Department speaks with one voice on important disability nondiscrimination issues.

The NPRM's proposal with respect to the DLCC is modeled on provisions in the Department's disadvantaged business enterprise (DBE) and drug and alcohol testing regulations, where similar mechanisms have worked well for many years. Like the Department's ADA and section 504 rules, these rules are Office of the Secretary regulations applying to parties subject to the programs of several DOT operating administrations.

Comments

Almost all comments from the disability community supported codifying the DLCC, for the reasons described in the NPRM. Most transit industry commenters opposed doing so, citing a variety of reasons. Some expressed concern that the DLCC would issue what amounted to legislative rules without an opportunity for public comment. Many of these commenters wanted the Department to ensure that there would be an opportunity for public comment on guidance and interpretations in any case. Others wanted guidance and interpretations of the DOT ADA concerning transit matters to come from FTA, rather than from the Department as a whole. Several commenters believed that a provision of SAFETEA-LU that directed FTA to seek notice and comment on guidance that had binding effect should apply to DOT guidance.

DOT Response

Coordination of interpretations and guidance, so that the Department of Transportation speaks with a single, reliable voice on disability law matters, is essential to the reasoned application of the ADA and section 504 of the Rehabilitation Act of 1973. The Department's experience in the past has been that, in the absence of such a coordination mechanism, various DOT offices and staff members have offered differing or inconsistent views on important disability law matters. In some cases, one office may not even have been aware of a response another office had given concerning the implementation of the same provision of a DOT regulation. The lack of a coordinating mechanism like the DLCC creates an opportunity for forum shopping, in which interested parties can call or write a series of DOT offices or staff personnel until they get the answer they want to a question. It also increases the likelihood of inconsistent practice among DOT recipients.

The Department does not find the transit industry objections to codifying the DLCC to be well-taken. The same transit industry parties that objected to the DLCC mechanism have accepted the same mechanism in the DBE regulation since 1999 and the drug testing procedure regulations since 2000, and neither they nor the Department have experienced any significant problems in those contexts. While transit industry organizations may disagree with some guidance and interpretations that the Department as a whole has produced concerning the ADA, that is not a cogent criticism of the internal process that is common to all three rules.

Legislative rules—like parts 37 and 38—have the force and effect of Federal law and, with certain exceptions not germane to this discussion, are issued through the normal Administrative Procedure Act notice and comment process. Consistent with Executive Orders and OMB Bulletins, guidance questions and answers do not claim independently to have the force and effect of Federal law, but rather set forth the Department's interpretations of its own rules and the Department's understanding of and recommendations for implementing provisions of rules and statutes. The Department's guidance, issued through the DLCC, consistently observes this distinction. It should be noted, however, that the Department's actions with respect to implementing and enforcing the provisions of part 37 and other legislative rules will be consistent with the Department's interpretations and understanding of those rules, as articulated in DOT guidance.

The internal organization of how the Department issues guidance, and the job of interpreting the meaning of DOT regulations and the statutes on which they are based, are inherently governmental functions. While the Department regularly discusses the interpretation and implementation of its rules with stakeholders, producing guidance on these matters is ultimately the Department's responsibility. The SAFETEA-LU provision that commenters mentioned (codified at 49 U.S.C. 5334) applies only to guidance issued by the Federal Transit Administration. It does not apply to guidance issued by the Department as a whole based on a regulation that is, and always has been, an Office of the Secretary rather than a Federal Transit Administration rule.

For all these reasons, the Department is adopting the DLCC provision as proposed. We note that a number of commenters asked for additional guidance concerning several issues in the regulation, such as how concepts like undue burden, direct threat, integrated settings, origin to destination, etc. are best understood. To the extent that issues like these require additional interpretation or guidance following the issuance of this rule, the Department will use the DLCC mechanism to craft well-coordinated responses to questions concerning issues of this kind.