II Calendar No. 480 111th CONGRESS 2d Session S. 3638 IN THE SENATE OF THE UNITED STATES July 22, 2010 Mr. Dodd, from the Committee on Banking, Housing, and Urban Affairs, reported the following original bill; which was read twice and placed on the calendar A BILL To establish a national safety plan for public transportation, and for other purposes.

1.

Short title

This Act may be cited as the Public Transportation Safety Act of 2010.

2.

Findings and purposes

(a)

Findings

Congress finds the following: (1)In the United States, more than 10,000,000,000 trips are taken on public transportation each year, and more than 14,000,000 trips are taken on rail fixed guideway systems every weekday. (2)Greater investment by the Federal Government in transit safety is necessary to better protect public transportation passengers and keep the economy of the United States operating efficiently through the safe movement of goods and people. (3)The Federal Transit Administration lacks the authority to implement and enforce national public transportation safety standards. (4)State safety oversight agencies often lack the authority, expertise, and resources to effectively monitor the safety of rail fixed guideway public transportation systems. (5)According to the Federal Transit Administration, more than 1/3 of the assets of the largest rail transit systems in the United States are in either marginal or poor condition, and the estimated maintenance backlog for public transportation systems is nearly $80,000,000,000, contributing to unsafe conditions for passengers and workers. (b)

Purposes

The purposes of this Act are— (1)to establish a national public transportation safety plan to improve the safety of public transportation systems; (2)to assist States in developing, implementing, and enforcing rail fixed guideway public transportation safety oversight programs; and (3)to ensure that public transportation agencies develop a process for prioritizing asset investment in order to bring their systems into a state of good repair.

3.

Public transportation safety

(a)

Public transportation safety program established

Section 5329 of title 49, United States Code, is amended to read as follows:

5329.

Public transportation safety program

(a)

Definition

In this section, the term recipient means a State or local governmental authority, or any other operator of a public transportation system, that receives financial assistance under this chapter. (b)

National public transportation safety plan

(1)

In general

The Secretary shall create and implement a national public transportation safety plan to improve the safety of all public transportation systems that receive funding under this chapter. (2)

Contents of plan

The national public transportation safety plan under paragraph (1) shall include— (A)safety performance criteria for all modes of public transportation; (B)a definition for the term state of good repair for public transportation systems, including equipment, rolling stock, infrastructure, and facilities; (C)minimum safety performance standards for public transportation vehicles used in revenue operations that— (i)do not apply to rolling stock otherwise regulated by the Secretary or any other Federal agency; and (ii)to the extent practicable, take into consideration— (I)relevant recommendations of the National Transportation Safety Board; and (II)recommendations of, and best practices standards developed by, the public transportation industry; and (D)a public transportation safety certification training program, as described in subsection (c). (c)

Public transportation safety certification training program

(1)

In general

The Secretary shall establish a public transportation safety certification training program for Federal and State employees, or other designated personnel, who conduct safety audits and examinations of public transportation systems and employees of public transportation agencies directly responsible for safety oversight. (2)

Interim provisions

Not later than 90 days after the date of enactment of the Public Transportation Safety Act of 2010, the Secretary shall establish interim provisions for the certification and training of the personnel described in paragraph (1), which shall be in effect until the effective date of the final rule issued by the Secretary to implement this subsection. (d)

Public transportation agency safety plan

(1)

In general

Effective 1 year after the effective date of a final rule issued by the Secretary to carry out this subsection, each recipient shall certify that the recipient has established a comprehensive agency safety plan that includes, at a minimum— (A)a requirement that the board of directors, or equivalent entity, of the recipient approve the agency safety plan and any updates to the agency safety plan; (B)methods for identifying and evaluating safety risks throughout all elements of the public transportation system of the recipient; (C)strategies to minimize the exposure of the public, personnel, and property to hazards and unsafe conditions; (D)a process and timeline for conducting an annual review and update of the safety plan of the recipient; (E)assignment of an adequately trained safety officer who reports directly to the general manager, president, or equivalent officer of the recipient; and (F)a comprehensive staff training program for the operations personnel and personnel directly responsible for safety of the recipient that includes— (i)the completion of a safety training program; and (ii)continuing safety education and training. (2)

Interim agency safety plan

A system safety plan developed pursuant to part 659 of title 49, Code of Federal Regulations shall remain in effect until such time as this subsection takes effect. (e)

State safety oversight program

(1)

Definition

In this subsection, the term eligible State means a State that has— (A)a rail fixed guideway public transportation system within the jurisdiction of the State that is not subject to regulation by the Federal Railroad Administration; or (B)a rail fixed guideway public transportation system in the design or construction phase of development within the jurisdiction of the State that will not be subject to regulation by the Federal Railroad Administration. (2)

In general

In order to obligate funds apportioned under section 5338 to carry out this chapter, effective 3 years after the date on which a final rule under this subsection becomes effective, an eligible State shall have in effect a State safety oversight program approved by the Secretary under which the State— (A)assumes responsibility for overseeing rail fixed guideway public transportation safety; (B)adopts and enforces Federal law on rail fixed guideway public transportation safety; (C)establishes a State safety oversight agency; (D)determines, in consultation with the Secretary, an appropriate staffing level for the State safety oversight agency that is commensurate with the number, size and complexity of the rail fixed guideway public transportation systems in the eligible State; (E)requires that employees and other designated personnel of the eligible State safety oversight agency who are responsible for rail fixed guideway public transportation safety oversight are qualified to perform such functions through appropriate training, including successful completion of the public transportation safety certification training program established under subsection (c); and (F)prohibits any public transportation agency from providing funds to the State safety oversight agency or an entity designated by the eligible State as the State safety oversight agency under paragraph (5). (3)

State safety oversight agency

(A)

In general

Each State safety oversight program shall establish a State safety oversight agency that— (i)is an independent legal entity responsible for the safety of rail fixed guideway public transportation systems; (ii)is financially and legally independent from any public transportation entity that the State safety oversight agency oversees; (iii)does not fund, promote, or provide public transportation services; (iv)does not employ any individual who is also responsible for the administration of public transportation programs; (v)has the authority to review, approve, oversee, and enforce the implementation by the rail fixed guideway public transportation agency of the public transportation agency safety plan required under subsection (d); (vi)has investigative and enforcement authority with respect to the safety of rail fixed guideway public transportation systems of the eligible State; (vii)audits, at least once triennially, the compliance of the rail fixed guideway public transportation systems in the eligible State subject to this subsection with the public transportation agency safety plan required under subsection (d); and (viii)provides, at least once annually, a status report on the safety of the rail fixed guideway public transportation systems the State safety oversight agency oversees to— (I)the Federal Transit Administration; (II)the Governor of the eligible State or States; and (III)the board of directors, or equivalent entity, of any rail fixed guideway public transportation system that the State safety oversight agency oversees. (B)

Waiver

At the request of an eligible State, the Secretary may waive clauses (i) and (iii) of subparagraph (A) for eligible States with 1 or more rail fixed guideway systems in revenue operations, design, or construction, that— (i)have fewer than 1,000,000 combined actual and projected rail fixed guideway revenue miles per year; or (ii)provide fewer than 10,000,000 combined actual and projected unlinked passenger trips per year. (4)

Enforcement

Each State safety oversight agency shall have the authority to request the Secretary take enforcement actions available under subsection (g) against a rail fixed guideway public transportation system that is not in compliance with Federal safety laws. (5)

Programs for multi-State rail fixed guideway public transportation systems

An eligible State that has within the jurisdiction of the eligible State a rail fixed guideway public transportation system that operates in more than 1 eligible State shall— (A)jointly with all other eligible States in which the rail fixed guideway public transportation system operates, to ensure uniform safety standards and enforcement procedures that shall be in compliance with this section, establish and implement a State safety oversight program approved by the Secretary; or (B)jointly with all other eligible States in which the rail fixed guideway public transportation system operates, designate an entity having characteristics consistent with the characteristics described in paragraph (3) to carry out the State safety oversight program approved by the Secretary. (6)

Grants

(A)

In general

The Secretary may make a grant to an eligible State to develop or carry out a State safety oversight program, if the eligible State submits— (i)a proposal for the establishment of a State safety oversight program to the Secretary for review and written approval before implementing a State safety oversight program; and (ii)any amendment to the State safety oversight program of the eligible State to the Secretary for review not later than 60 days before the effective date of the amendment. (B)

Determination by Secretary

(i)

In general

The Secretary shall transmit written approval to an eligible State that submits a State safety oversight program, if the Secretary determines the State safety oversight program meets the requirements of this subsection and the State safety oversight program is adequate to promote the purposes of this section. (ii)

Amendment

The Secretary shall transmit to an eligible State that submits an amendment under subparagraph (A)(ii) a written determination with respect to the amendment. (iii)

No written decision

If an eligible State does not receive a written decision from the Secretary with respect to an amendment submitted under subparagraph (A)(ii) before the end of the 60-day period beginning on the date on which the eligible State submits the amendment, the amendment shall be deemed to be approved. (iv)

Disapproval

If the Secretary determines that a State safety oversight program does not meet the requirements of this subsection, the Secretary shall transmit to the eligible State a written explanation and allow the eligible State to modify and resubmit the State safety oversight program for approval. (C)

Federal share

(i)

In general

The Federal share of the reasonable cost of a State safety oversight program developed or carried out using a grant under this paragraph shall be 80 percent. (ii)

In-kind contributions

Any calculation of the non-Federal share of a State safety oversight program shall include in-kind contributions by an eligible State. (iii)

Non-Federal share

The non-Federal share of the cost of a State safety oversight program developed or carried out using a grant under this paragraph may not be met by— (I)any Federal funds; (II)any funds received from a public transportation agency; or (III)any revenues earned by a public transportation agency. (iv)

Safety training program

The Secretary may reimburse an eligible State or a recipient for the full costs of participation in the public transportation safety certification training program established under subsection (c) by an employee of a State safety oversight agency or a recipient who is directly responsible for safety oversight. (7)

Continual evaluation of program

The Secretary shall continually evaluate the implementation of a State safety oversight program by a State safety oversight agency, on the basis of— (A)reports submitted by the State safety oversight agency under paragraph (3)(A)(viii); and (B)audits carried out by the Secretary. (8)

Inadequate program

(A)

In general

If the Secretary finds that a State safety oversight program approved by the Secretary is not being carried out in accordance with this section or has become inadequate to ensure the enforcement of Federal safety regulations, the Secretary shall— (i)transmit to the eligible State a written explanation of the reason the program has become inadequate and inform the State of the intention to withhold funds, including the amount of funds proposed to be withheld under this section, or withdraw approval of the State safety oversight program; and (ii)allow the eligible State a reasonable period of time to modify the State safety oversight program or implementation of the program and submit an updated proposal for the State safety oversight program to the Secretary for approval. (B)

Failure to correct

If the Secretary determines that a modification by an eligible State of the State safety oversight program is not sufficient to ensure the enforcement of Federal safety regulations, the Secretary may— (i)withhold funds available under this section in an amount determined by the Secretary; or (ii)provide written notice of withdrawal of State safety oversight program approval. (C)

Temporary oversight

In the event the Secretary takes action under subparagraph (B)(ii), the Secretary shall provide oversight of the rail fixed guideway systems in an eligible State until the State submits a State safety oversight program approved by the Secretary. (D)

Restoration

(i)

Correction

The eligible State shall address any inadequacy to the satisfaction of the Secretary prior to the Secretary restoring funds withheld under this paragraph. (ii)

Availability and reallocation

Any funds withheld under this paragraph shall remain available for restoration to the eligible State until the end of the first fiscal year after the fiscal year in which the funds were withheld, after which time the funds shall be available to the Secretary for allocation to other eligible States under this section. (9)

Federal oversight

The Secretary shall— (A)oversee the implementation of each State safety oversight program under this subsection; (B)audit the operations of each State safety oversight agency at least once triennially; and (C)issue regulations to carry out this subsection. (f)

Authority of Secretary

In carrying out this section, the Secretary may— (1)conduct inspections, investigations, audits, examinations, and testing of the equipment, facilities, rolling stock, and operations of the public transportation system of a recipient; (2)make reports and issue directives with respect to the safety of the public transportation system of a recipient; (3)issue subpoenas to, and take depositions of, any employee of a recipient or a State safety oversight agency; (4)require the production of documents by, and prescribe recordkeeping and reporting requirements for, a recipient or a State safety oversight agency; (5)investigate public transportation accidents and incidents and provide guidance to recipients regarding prevention of accidents and incidents; (6)at reasonable times and in a reasonable manner, enter and inspect equipment, facilities, rolling stock, operations, and relevant records of the public transportation system of a recipient; and (7)issue regulations to carry out this section. (g)

Enforcement actions

(1)

Types of enforcement actions

The Secretary may take enforcement action against a recipient that does not comply with Federal law with respect to the safety of the public transportation system, including— (A)issuing directives; (B)requiring more frequent oversight of the recipient by a State safety oversight agency or the Secretary; (C)imposing more frequent reporting requirements; (D)requiring that Federal transit formula grant funds be spent on correcting safety deficiencies identified by the Secretary or the State safety oversight agency before such funds are spent on other projects; (E)subject to paragraph (2), withholding Federal financial assistance, in an amount to be determined by the Secretary, from the recipient, until such time as the recipient comes into compliance with this section; and (F)subject to paragraph (3), imposing a civil penalty, in an amount to be determined by the Secretary. (2)

Use or withholding of funds

(A)

In general

The Secretary may require the use of funds in accordance with paragraph (1)(D), or withhold funds under paragraph (1)(E), only if the Secretary finds that a recipient is engaged in a pattern or practice of serious safety violations or has otherwise refused to comply with Federal law relating to the safety of the public transportation system. (B)

Notice

Before withholding funds from a recipient under paragraph (1)(E), the Secretary shall provide to the recipient— (i)written notice of a violation and the amount proposed to be withheld; and (ii)a reasonable period of time within which the recipient may address the violation or propose and initiate an alternative means of compliance that the Secretary determines is acceptable. (C)

Failure to address

If the recipient does not address the violation or propose an alternative means of compliance that the Secretary determines is acceptable within the period of time specified in the written notice, the Secretary may withhold funds under paragraph (1)(E). (D)

Restoration

(i)

Correction

The recipient shall address any violation to the satisfaction of the Secretary prior to the Secretary restoring funds withheld under paragraph (1)(E). (ii)

Availability and reallocation

Any funds withheld under paragraph (1)(E) shall remain available for restoration to the recipient until the end of the first fiscal year after the fiscal year in which the funds were withheld, after which time the funds shall be available to the Secretary for allocation to other eligible recipients. (E)

Notification

Not later than 3 days before taking any action under subparagraph (C), the Secretary shall notify the Committee on Banking, Housing, and Urban Affairs of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives of such action. (3)

Civil penalties

(A)

Imposition of civil penalties

(i)

In general

The Secretary may impose a civil penalty under paragraph (1)(F), only if— (I)the Secretary has exhausted the enforcement actions available under subparagraphs (A) through (E) of paragraph (1); and (II)the recipient continues to be in violation of Federal safety law. (ii)

Exception

The Secretary may waive the requirement under clause (i)(I), if the Secretary determines that such a waiver is in the public interest. (B)

Notice

Before imposing a civil penalty on a recipient under paragraph (1)(F), the Secretary shall provide to the recipient— (i)written notice of any violation and the penalty proposed to be imposed; and (ii)a reasonable period of time within which the recipient may address the violation or propose and initiate an alternative means of compliance that the Secretary determines is acceptable. (C)

Failure to address

If the recipient does not address the violation or propose an alternative means of compliance that the Secretary determines is acceptable within the period of time specified in the written notice, the Secretary may impose a civil penalty under paragraph (1)(F). (D)

Notification

Not later than 3 days before taking any action under subparagraph (C), the Secretary shall notify the Committee on Banking, Housing, and Urban Affairs of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives of such action. (E)

Deposit of civil penalties

Any amounts collected by the Secretary under this paragraph shall be deposited into the Mass Transit Account of the Highway Trust Fund. (4)

Enforcement by the Attorney General

At the request of the Secretary, the Attorney General may bring a civil action— (A)for appropriate injunctive relief to ensure compliance with this section; (B)to collect a civil penalty imposed under paragraph (1)(F); and (C)to enforce a subpoena, request for admissions, request for production of documents or other tangible things, or request for testimony by deposition issued by the Secretary under this section. (h)

Cost-benefit analysis

(1)

Analysis required

In carrying out this section, the Secretary shall take into consideration the costs and benefits of each action the Secretary proposes to take under this section. (2)

Waiver

The Secretary may waive the requirement under this subsection, if the Secretary determines that such a waiver is in the public interest. (i)

Consultation by the Secretary of Homeland Security

The Secretary of Homeland Security shall consult with the Secretary of Transportation before the Secretary of Homeland Security prescribes a regulation or issues an order that the Secretary of Transportation determines affects the safety of public transportation design, construction, or operations. (j)

Preemption of State law

(1)

National uniformity of regulation

Laws, regulations, and orders related to public transportation safety shall be nationally uniform to the extent practicable. (2)

In general

A State may adopt or continue in force a law, regulation, or order related to the safety of public transportation until the Secretary promulgates a regulation or issues an order covering the subject matter of the State requirement. (3)

More stringent law

A State may adopt or continue in force a law, regulation, or order related to the safety of public transportation that is consistent with, in addition to or more stringent than a regulation or order of the Secretary, if the Secretary determines that the law, regulation, or order— (A)has a safety benefit; (B)is not incompatible with a law, regulation, or order, or the terms and conditions of a financial assistance agreement of the United States Government; and (C)does not unreasonably burden interstate commerce. (4)

Actions under State law

(A)

Rule of construction

Nothing in this section shall be construed to preempt an action under State law seeking damages for personal injury, death, or property damage alleging that a party has failed to comply with— (i)a Federal standard of care established by a regulation or order issued by the Secretary under this section; (ii)its own program, rule, or standard that it created pursuant to a regulation or order issued by the Secretary; or (iii)a State law, regulation, or order that is not incompatible with paragraph (2). (B)

Effective date

This paragraph shall apply to any cause of action under State law arising from an event or activity occurring on or after the date of enactment of the Public Transportation Safety Act of 2010. (5)

Jurisdiction

Nothing in this section may be construed to create a cause of action under Federal law on behalf of an injured party or confers Federal question jurisdiction for such State law causes of action. (k)

Annual report

The Secretary shall submit to the Committee on Banking, Housing, and Urban Affairs of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives an annual report that— (1)analyzes public transportation safety trends among the States and documents the most effective safety programs implemented using grants under this section; and (2)describes the effect on public transportation safety of activities carried out using grants under this section. (l)

Authorization of appropriations

There are authorized to be appropriated to carry out this section— (1)$10,000,000 for fiscal year 2011; (2)$20,000,000 for fiscal year 2012; and (3)$30,000,000 for fiscal year 2013.

. (b)

Reviews and reports by the Comptroller General

(1)

Review of implementation of this Act

(A)

Review

The Comptroller General of the United States shall conduct a review of the status of the implementation of this Act. (B)

Report

Not later than 2 years after the date of enactment of this Act, the Comptroller General shall submit to the Committee on Banking, Housing, and Urban Affairs of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives a report on the results of the review under subparagraph (A). (2)

Review of implementation of State safety oversight programs

(A)

Review

The Comptroller General of the United States shall conduct a review of the status of the implementation of section 5329(e) of title 49, United States Code, as added by this Act. (B)

Report

Not later than 1 year after section 5330 of title 49, United States Code, is repealed under section 6(f) of this Act, the Comptroller General shall submit to the Committee on Banking, Housing, and Urban Affairs of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives a report on the results of the review under subparagraph (A).

4.

Transit asset management

Section 5326 of title 49, United States Code, is amended to read as follows:

5326.

Transit asset management

(a)

Definitions

In this section the following definitions shall apply: (1)

Capital asset

The term capital asset includes equipment, rolling stock, infrastructure, and facilities for use in public transportation and owned or leased by a recipient or subrecipient of Federal financial assistance under this chapter. (2)

Transit asset management system

The term transit asset management system means a strategic and systematic process of operating, maintaining, and improving public transportation capital assets effectively throughout the life cycle of such assets. (b)

Transit asset management system

The Secretary shall establish and implement a national transit asset management system, which shall include— (1)a definition of the term state of good repair that includes objective standards for measuring the condition of capital assets of recipients; (2)a requirement that recipients and subrecipients of funds under this chapter develop capital asset inventories and condition assessments; (3)a requirement that each recipient of funding under this chapter report on the condition of the system of the recipient and provide a description of the change in condition since the last report; (4)an analytical process or decision support tool for use by public transportation systems that— (A)allows for the estimation of capital investment needs of such systems over time; and (B)assists with asset investment prioritization by such systems; and (5)technical assistance to recipients of financial assistance under this chapter. (c)

Rulemaking

Not later than 240 days after the date of enactment of the Public Transportation Safety Act of 2010, the Secretary shall issue a notice of proposed rulemaking to implement the transit asset management system described in subsection (b), and shall issue a final rule within a reasonable amount of time. (d)

Authorization of appropriations

There are authorized to be appropriated to carry out this section— (1)$2,000,000 for fiscal year 2011; (2)$2,000,000 for fiscal year 2012; and (3)$2,000,000 for fiscal year 2013.

.

5.

National transit database

(a)

Reporting requirements

(1)

Amendment

Section 5335 of title 49, United States Code, is amended by adding at the end the following: (c)

Data required to be reported

The Secretary may award a grant under this chapter only if the recipient of the grant reports to the Secretary, for inclusion in the National Transit Database, any information relating to— (1)the causes of reportable incidents, as defined by the Secretary; and (2)transit asset inventories and condition assessments conducted by the recipient. . (2)

Effective date

The amendment made by this subsection shall take effect 2 years after the effective date of the final rule issued under section 5326(c) of title 49, United States Code, as amended by this Act. (b)

Conditions and performance reporting

Section 308(e) of title 49, United States Code, is amended by adding at the end the following: (3)In reporting to Congress under this subsection, the Secretary shall use data reported to the National Transit Database under section 5335. .

6.

Additional safety provisions

(a)

Office of safety and security

There is established within the Federal Transit Administration the Office of Safety and Security. The head of the Office of Safety and Security shall be the Associate Administrator of Safety and Security. (b)

Prohibitions against regulating operations and charges

Section 5334(b)(1) of title 49, United States Code, is amended by inserting or for purposes of establishing and enforcing a program to improve the safety of public transportation systems in the United States, after emergency,. (c)

Grant recipient requirements

(1)

Amendments

Section 5307(d)(1) of title 49, United States Code, is amended— (A)in subparagraph (K)(ii), by striking and at the end; and (B)by adding at the end the following: (L)will comply with section 5329(d); and . (2)

Effective date

The amendments made by this subsection shall take effect 1 year after the effective date of final regulations issued by the Secretary to carry out section 5329(d) of title 49, United States Code, as amended by this Act. (d)

Alcohol and controlled substances testing

Section 5331(b)(2) of title 49, United States Code, is amended— (1)by redesignating subparagraphs (A) and (B) as subparagraphs (B) and (C), respectively; and (2)by inserting before subparagraph (B), as so redesignated, the following: (A)shall establish and implement an enforcement program that includes the imposition of penalties for failure to comply with this section; . (e)

Conforming amendment

The analysis for chapter 53 of title 49, United States Code, is amended— (1)by striking the item relating to section 5326 and inserting the following: 5326. Transit asset management.; and (2)by striking the item relating to section 5329 and inserting the following: 5329. Public transportation safety program.. (f)

Repeal

Effective 3 years after the effective date of final regulations issued by the Secretary under section 5329(e) of title 49, United States Code, as amended by this Act, section 5330 of title 49, United States Code, is repealed.

July 22, 2010 Read twice and placed on the calendar