February 22, 2006
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Mr. David B. Horner
Chief Counsel
Office of the Chief Counsel
Federal Transit Administration
400 Seventh Street, S.W., Room 9328
Washington, DC 20590
Dear Mr. Horner:
We write in regard to the Notice of Supplemental Information published by the Federal Transit Administration at 71 Federal Register 7111, dated February 10, 2006. The Notice suggests the Secretary of Transportation may incorporate, as a condition of federal transit grants to commuter rail authorities, payments to Amtrak that may be required under the Transportation, Treasury, Housing and Urban Development, the Judiciary, the District of Columbia, and Independent Agencies Appropriations Act of 2006 (the 2006 Act). The authority to make these payments a condition of Federal Transit Administration (FTA) grants is cited as 49 U.S.C. 5334(a)(9).
For the reasons noted below, APTA disagrees with this interpretation of federal transit law and requests FTA to reconsider its decision.
The Appropriations Law Provision Includes No Such Authority. The 2006 Act includes language directing the Secretary of Transportation to assess commuter railroads using Amtrak-owned Northeast Corridor assets a higher portion of corridor capital and maintenance costs. APTA has separately written to the Secretary about this matter (copy enclosed). The statutory language is quite prescriptive, directing how the Secretary is to calculate the costs and providing further that "…the Secretary shall assess fees to each commuter railroad for any direct capital or maintenance costs associated with that rail authority's usage of the corridor…." Moreover, the legislative history accompanying the 2006 Act indicates that the drafters of the legislation "…expect the Secretary to establish these fees expeditiously and through an open and transparent process that seeks, to the maximum extent possible, to yield consensus on the part of all stakeholders as to the appropriate distribution of costs between said stakeholders." Notwithstanding the prescriptive language in the appropriations provision, it nowhere authorizes the Secretary to condition federal transit grants as a means of enforcing it. Nor does the legislative history language calling for an "open and transparent process" that seeks to yield consensus suggest that a conditioning of transit grants was considered as an enforcement tool for the provision. "There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes." United States v. American Trucking Associations, 310 U.S. 543 (1940).
Federal Transit Grants Are Subject to Federal Transit Law and Cross Cutting Requirements. The Federal transit grants at issue are subject to a range of federal transit law requirements under chapter 53 of the United States Code, to cross cutting federal requirements generally applicable to all federal grant programs, and to a number of administrative and budgetary requirements. We are not aware in the forty- three year history of the program where, in the absence of specific statutory authority, other requirements have been made a condition of federal transit grants.
The Authority Cited to Authorize Such A Grant Is Applicable Only To Chapter 53. In its Notice, the FTA's authority to make the Amtrak payments a condition of FTA grants is cited as 49 U.S.C. 5334(a)(9). We disagree. Section 5334(a)(9) allows the Secretary to "include in an agreement or instrument under this chapter a covenant or term the Secretary of Transportation considers necessary to carry out this chapter" (emphasis supplied), a clear reference to 49 U.S.C. Chapter 53. Simply put, we find no authority in this provision to make grant conditions designed to enforce other laws
We respectfully request FTA to reconsider its decision. Our concern in this matter is not simply related to the Amtrak provisions. Rather, our members are concerned about the precedent that hereby could be created - that the federal transit program could be the means to enforce any number of extraneous provisions of law.
Thank you for your attention to this matter.
Sincerely yours,
[Signed]
Daniel Duff
Chief Counsel and Vice President
for Government Affairs
DD/cbo
Enclosure
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