[Federal Register Volume 81, Number 24 (Friday, February 5, 2016)]
[Proposed Rules]
[Pages 6344-6371]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-02017]
[[Page 6343]]
Vol. 81
Friday,
No. 24
February 5, 2016
Part II
Department of Transportation
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Federal Transit Administration
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49 CFR Part 673
Public Transportation Agency Safety Plan; National Public
Transportation Safety Plan; Availability; Proposed Rule and Notice
Federal Register / Vol. 81, No. 24 / Friday, February 5, 2016 /
Proposed Rules
[[Page 6344]]
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DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
49 CFR Part 673
[Docket No. FTA-2015-0021]
RIN 2132-AB23
Public Transportation Agency Safety Plan
AGENCY: Federal Transit Administration (FTA), DOT.
ACTION: Notice of Proposed Rulemaking (NPRM): request for comments.
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SUMMARY: The Federal Transit Administration (FTA) is proposing
requirements for Public Transportation Agency Safety Plans as
authorized by Section 20021 of the Moving Ahead for Progress in the
21st Century Act (MAP-21). This proposed rule would require operators
of public transportation systems that receive Federal financial
assistance under 49 U.S.C. Chapter 53 to develop and implement Public
Transportation Agency Safety Plans based on the Safety Management
System approach. Development and implementation of agency safety plans
will help ensure that public transportation systems are safe
nationwide. FTA seeks public comments on all aspects of this proposed
rule, including information related to its benefits and costs, as well
as alternative approaches that may more cost-effectively satisfy the
statutory requirements and help ensure the safety of the nation's
public transportation system.
DATES: Comments must be received by April 5, 2016. Any comments filed
after this deadline will be considered to the extent practicable.
FTA will hold webinars to explain the proposed rule. Interested
stakeholders should check FTA's Web site for days and times of
webinars: http://www.fta.dot.gov/calendar.html. Additionally, FTA will
hold a listening session on Wednesday, March 16, 2016, in conjunction
with the American Public Transportation Association's Legislative
Conference. The listening session will be held at the JW Marriott, 1331
Pennsylvania Avenue NW., Washington, DC 20004 at 9:30 a.m.
ADDRESSES: Please submit your comments by only one of the following
methods, identifying your submission by Docket Number (FTA-2015-0021)
or Regulatory Identification Number (RIN) (2132-AB23).
Federal eRulemaking Portal: Submit electronic comments and
other data to http://www.regulations.gov.
U.S. Mail: Send comments to Docket Operations, U.S.
Department of Transportation, 1200 New Jersey Avenue SE., West Building
Room W12-140, Washington, DC 20590-0001.
Hand Delivery or Courier: Take comments to Docket
Operations in Room W12-140 of the West Building, Ground Floor, at 1200
New Jersey Avenue SE., Washington, DC, between 9:00 a.m. and 5:00 p.m.,
Monday through Friday, except Federal holidays.
Fax: Fax comments to Docket Operations, U.S. Department of
Transportation, at (202) 493-2251.
Instructions: You must include the agency name (Federal Transit
Administration) and Docket Number (FTA-2015-0021 for this notice or
Regulation Identifier Number (RIN) 2132-AB23), at the beginning of your
comments. If sent by mail, submit two copies of your comments. Due to
security procedures in effect since October 2001, mail received through
the U.S. Postal Service may be subject to delays. Parties submitting
comments should consider using an express mail firm to ensure the
prompt filing of any submissions not filed electronically or by hand.
If you wish to receive confirmation that FTA received your comments,
you must include a self-addressed stamped postcard. All comments
received will be posted without change to http://www.regulations.gov,
including any personal information provided. Anyone is able to search
the electronic form for all comments received into any of our dockets
by the name of the individual submitting the comment (or signing the
comment, if submitted on behalf of an association, business, labor
union, etc.). You may review the United States Department of
Transportation's (DOT) Privacy Act system of records notice for the DOT
Federal Docket Management System (FDMS) in the Federal Register
published on December 29, 2010 (75 FR 82132) at http://www.gpo.gov/fdsys/pkg/FR-2010-12-29/pdf/2010-32876.pdf.
FOR FURTHER INFORMATION CONTACT: For program matters, contact Brian
Alberts, Office of Transit Safety and Oversight, (202) 366-1783 or
[email protected]. For legal matters, contact Michael Culotta,
Office of Chief Counsel, (212) 668-2178 or [email protected].
Office hours are from 8:30 a.m. to 5:00 p.m., Monday through
Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Executive Summary
A. Purpose of Regulatory Action
B. Statutory Authority
C. Summary of Major Provisions
D. Costs and Benefits (Table)
II. Background
A. History
B. General Requirements
C. The Safety Management Systems (SMS) Approach
D. The Role of the Accountable Executive With Public
Transportation Agency Safety Plans and Transit Asset Management
Plans
III. Advance Notice of Proposed Rulemaking and Response to Relevant
Comments
A. Scope and Applicability of Public Transportation Agency
Safety Plans
B. Safety Management Systems
C. Public Transportation Agency Safety Plan Development,
Certification, and Oversight
D. Role of the Board of Directors (or Equivalent Authority) and
the Chief Safety Officer
E. Coordination of Public Transportation Agency Safety Plan With
Other MAP-21 Programs and Plans
IV. Section-by-Section Analysis
V. Regulatory Analyses and Notices
I. Executive Summary
A. Purpose of Regulatory Action
The public transportation industry remains among the safest surface
transportation modes in terms of total reported safety events,
fatalities, and injuries.\1\ Nonetheless, given the complexity of
public transportation service, the condition and performance of transit
equipment and facilities, turnover in the transit workforce, and the
quality of procedures, training, and supervision, the public
transportation industry remains vulnerable to catastrophic accidents.
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\1\ See United States Department of Transportation, Bureau of
Transportation Statistics, ``Table 2-1: Transportation Fatalities by
Mode 1960-2013,'' at http://www.rita.dot.gov/bts/sites/rita.dot.gov.bts/files/publications/national_transportation_statistics/html/table_02_01.html_mfd; and
``Table 1-40: U.S. Passenger Miles (Millions) 1960-2013,'' at http://www.rita.dot.gov/bts/sites/rita.dot.gov.bts/files/publications/national_transportation_statistics/html/table_01_40.html.
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This Notice of Proposed Rulemaking (NPRM) proposes requirements for
Public Transportation Agency Safety Plans that would carry out explicit
statutory mandates in the Moving Ahead for Progress in the 21st Century
Act (Pub. L. 112-141; July 6, 2012) (MAP-21), which recently was
reauthorized by the Fixing America's Surface Transportation Act (Pub.
L. 114-94; December 4, 2015) and codified at 49 U.S.C. 5329(d), to
strengthen the safety of public transportation systems that receive
Federal financial assistance under Chapter 53. This NPRM proposes
requirements for the adoption of Safety Management Systems (SMS)
principles and methods; the development,
[[Page 6345]]
certification, and update of Public Transportation Agency Safety Plans;
and the coordination of Public Transportation Agency Safety Plan
elements with other FTA programs and proposed rules, as specified in 49
U.S.C. 5329.
B. Statutory Authority
In Section 20021 of MAP-21, Congress directed FTA to establish a
comprehensive Public Transportation Safety Program, one element of
which is the requirement for Public Transportation Agency Safety Plans.
Pursuant to 49 U.S.C. 5329(d), FTA must issue a final rule requiring
operators of public transportation systems that receive financial
assistance under Chapter 53 to develop and certify Public
Transportation Agency Safety Plans. FTA also is required to issue a
rule designating certain Urbanized Area Formula Program recipients
under 49 U.S.C. 5307 that may have their Public Transportation Agency
Safety Plans drafted or certified by a State. 49 U.S.C. 5329(d)(3)(B).
Further, FTA must allow States to draft and certify Public
Transportation Agency Safety Plans for Rural Area Formula Program
recipients and subrecipients under 49 U.S.C. 5311. 49 U.S.C.
5329(d)(3)(A).
C. Summary of Major Provisions
The proposed rule would add a new Part 673, ``Public Transportation
Agency Safety Plans,'' to Title 49 of the Code of Federal Regulations.
The rule would implement the requirements of 49 U.S.C. 5329(d).
One year after FTA issues a final rule to carry out Section
5329(d), each State, local governmental authority, and other operator
of a public transportation system that receives Federal financial
assistance under 49 U.S.C. Chapter 53, must certify that it has
established and implemented a comprehensive Public Transportation
Agency Safety Plan. 49 U.S.C. 5329(d)(1). FTA proposes that large
transit providers that are direct recipients of Section 5307 funds
would develop their own plans, have the plans approved by their Boards
of Directors (or equivalent authority), and certify to FTA that those
plans are in place. FTA also proposes that transit providers which
receive funds under the Enhanced Mobility of Seniors and Individuals
with Disabilities Program authorized by 49 U.S.C. 5310 (which tend to
be much smaller transit providers) and transit providers that receive
funds under the Rural Area Formula Program authorized by 49 U.S.C.
5311, as well as small public transportation providers as defined in
this NPRM, may have their plans drafted or certified by the State in
which they operate.
At a minimum, and consistent with 49 U.S.C. 5329(d), FTA proposes
that each Public Transportation Agency Safety Plan must:
Include a Safety Management System consisting of four main
pillars: (1) Safety Management Policy, (2) Safety Risk Management, (3)
Safety Assurance, and (4) Safety Promotion, as discussed in more detail
below (49 CFR 673.11(a)(2));
Include performance targets based on the safety
performance criteria established under the National Public
Transportation Safety Plan, and the state of good repair standards
established in the regulations that implement the National Transit
Asset Management System and are included in the National Public
Transportation Safety Plan (49 CFR 673.11(a)(3));
Address all applicable requirements and standards as set
forth in FTA's Public Transportation Safety Program and National Public
Transportation Safety Plan (49 CFR 673.11(a)(4)); and
Establish a process and timeline for conducting an annual
review and update of the Public Transportation Agency Safety Plan (49
CFR 673.11(a)(5)).
FTA proposes that each rail transit agency must include in its
Public Transportation Agency Safety Plan an emergency preparedness and
response plan, as historically required by FTA under its State Safety
Oversight Rule at 49 CFR part 659. 49 CFR 673.11(a)(6).
A transit agency would be able to develop one Public Transportation
Agency Safety Plan for all modes of service, or it may develop a Public
Transportation Agency Safety Plan for each mode of service not subject
to safety regulation by another Federal entity. 49 CFR 673.11(b). A
transit agency would be required to maintain records associated with
its Public Transportation Agency Safety Plan. 49 CFR 673 subpart D. Any
rail fixed guideway public transportation system that had a System
Safety Program Plan compliant with 49 CFR part 659 as of October 1,
2012, would be able to keep that plan in effect until one year after
the effective date of the final rule. 49 CFR 673.11(e). Agencies that
operate passenger ferries regulated by the United States Coast Guard
(USCG) or commuter rail service regulated by the Federal Railroad
Administration (FRA) would not be required to develop agency safety
plans for those modes of service. 49 CFR 673.11(f).
A State or transit agency would be required to make its safety
performance targets available to States and Metropolitan Planning
Organizations to aid in the planning process, and to the maximum extent
practicable, a State or transit agency would be required to coordinate
with States and Metropolitan Planning Organizations in the selection of
State and MPO safety performance targets. 49 CFR 673.15.
On an annual basis, a transit agency or State would be required to
certify its compliance with this rule. 49 CFR 673.13.
D. Costs and Benefits (Table)
FTA has determined that this proposed rule likely is ``economically
significant'' under Executive Order 12866, in that it may lead to
transit agencies making investment and prioritization decisions related
to mitigation of safety risks that would result in economic impacts
that could exceed $100 million in a year. However, as discussed in
greater detail below, FTA was unable to quantify the potential impacts
of this rule beyond the costs for transit agencies to develop and
implement Public Transportation Agency Safety Plans. FTA was able to
estimate costs of approximately $86 million in the first year, and $70
million per year thereafter. These costs result from developing and
certifying safety plans, documenting the SMS approach, implementing
SMS, and associated recordkeeping. The estimated costs do not include
the costs of actions that transit agencies would be required to take to
mitigate risk as a result of implementing this rule, such as vehicle
modifications, additional training, technology investments, or changes
to operating procedures. The annualized cost of proposed requirements
is estimated to be approximately $71 million.
FTA could not estimate the benefits of the proposed rule. To
estimate safety benefits, one would need to understand the exact causes
of the accidents and the factors that may cause future accidents. This
information is generally unknown in this sector, given the infrequency
and diversity of the type of safety incidents that occur. In addition,
one would need information about the safety problems that agencies are
likely to find through implementation of their safety plans and the
actions agencies are likely to take to address those problems. Instead,
FTA conducted a breakeven analysis that compares the estimated costs
(absent the cost of mitigations beyond those specifically required by
the rule such as training) to a pool of potential safety benefits. The
pool of potential safety benefits is an estimate of the cost of all bus
and rail incidents over a future 20-year period. The estimate is an
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extrapolation of the total cost of bus and rail incidents that occurred
from 2010 to 2014.
As Table 1 below shows, the amount of incident reduction needed to
breakeven with estimated costs is low. However, benefits of SMS will
primarily result from mitigating actions, which are largely not
accounted for in this analysis. FTA has not estimated the benefits of
implementing SMS without mitigating actions, but expects they are
unlikely to be large. Estimated costs for agencies' safety plans
include certain activities that could yield safety improvements, such
as improved communication, identification of hazards, and greater
employee awareness. It is plausible that these activities alone could
produce accident reductions that surpass the breakeven level, though
even greater reductions could be achieved in concert with other
mitigating actions.
This analysis assumes that benefits are realized from reducing both
rail and bus incidents after adjusting for the estimated breakeven
threshold for the proposed State Safety Oversight and Safety Training
Rules (RINs 2132-AB19 and 2132-AB25 respectively), to which the rail
agencies also will be subject when finalized.
Table 1--Summary of Breakeven Analysis \2\
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Current dollar value 7% Discounted value 3% Discounted value
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Bus Incidents (20-Year Estimate)... $86,999,489,120...................... $40,894,178,605...................... $58,084,884,054.
Rail Incidents (20-Year Estimate).. $37,680,410,444...................... $17,711,706,703...................... $25,157,185,334.
Total Pool of Benefits (20-Year $124,679,899,564..................... $58,605,885,309...................... $83,242,069,388.
Estimate).
Estimated Costs (20-Year Estimate). $1,407,680,883....................... $752,319,890......................... $1,050,876,643.
Benefits and Costs of Mitigating Not Estimated........................ Not Estimated........................ Not Estimated.
Actions.
Estimated Cost (Annualized)........ ..................................... $71,013,675.......................... $70,635,417.
Breakeven Threshold Including Bus ..................................... 1.28%................................ 1.26%.
and Rail.
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II. Background
On July 6, 2012, the President signed into law MAP-21 (Pub. L. 112-
141). MAP-21 authorized a number of fundamental changes to the Federal
transit programs at 49 U.S.C. Chapter 53. This NPRM addresses the
Public Transportation Agency Safety Plan within the Public
Transportation Safety Program authorized under 49 U.S.C. 5329.
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\2\ The costs in this table and the breakeven threshold do not
account for actions by agencies to mitigate or eliminate safety
risks identified through implementation of their safety plans
(beyond those specifically required by the rule, such as training).
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The Public Transportation Safety Program consists of several key
elements: the National Public Transportation Safety Plan, authorized by
49 U.S.C. 5329(b); the Public Transportation Safety Certification
Training Program, authorized by 49 U.S.C. 5329(c); the Public
Transportation Agency Safety Plans, authorized by 49 U.S.C. 5329(d);
and the State Safety Oversight Program, authorized by 49 U.S.C.
5329(e). FTA will issue rules and guidance to carry out all of these
plans and programs under the rulemaking authority of 49 U.S.C. 5329 and
5334(a)(11).
On October 3, 2013, FTA issued an Advance Notice of Proposed
Rulemaking (ANPRM) for the National Public Transportation Safety Plan,
the Safety Certification Training Program, and the Public
Transportation Agency Safety Plans. 78 FR 61251. Through the ANPRM, FTA
also sought public comment on transit asset management, given FTA's
statutory directive to develop and implement a Transit Asset Management
System under 49 U.S.C. 5326. FTA is addressing the National Public
Transportation Safety Plan, the Safety Certification Training Program,
and the Transit Asset Management System through separate rulemakings
and guidance documents. Each of these programs will contribute to the
establishment of a comprehensive framework that will help to ensure
public transportation systems are safe nationwide.
In most instances, the requirements of the Public Transportation
Agency Safety Plans will apply to each recipient and subrecipient of
FTA funding, regardless of the mode(s) of transit provided. However,
two provisions limit FTA's regulatory jurisdiction. First, FTA is
prohibited from establishing safety performance standards for rolling
stock that is already regulated by another Federal agency. 49 U.S.C.
5329(b)(2)(C)(i). Second, the requirements of the Public Transportation
Agency Safety Plans will not apply to rail transit systems to the
extent that they are already subject to regulation by FRA. 49 U.S.C.
5329(e)(1) and (e)(2). Further, to the extent that any other Federal
agency already regulates the safety of a particular mode of public
transportation, FTA does not intend to publish duplicative,
inconsistent, or conflicting regulations.
Today's proposed rule for establishing and certifying Public
Transportation Agency Safety Plans takes into account the size,
complexity, and operating environments of applicable recipients. FTA
proposes the incorporation of SMS principles and methods to support
Public Transportation Agency Safety Plan development and
implementation. SMS provides transit agencies flexibility in
establishing processes and activities to address safety risks within
their agencies in a scalable manner.
Until FTA issues a final rule to carry out Section 5329(d),
existing system safety and security program plans required of rail
fixed guideway systems under 49 CFR part 659 will remain in effect. 49
U.S.C. 5329(d)(2). Within one year of the Public Transportation Agency
Safety Plan final rule's effective date, all operators of public
transportation systems that receive Chapter 53 funds would be required
to draft and certify their Public Transportation Agency Safety Plans,
unless a State is otherwise required to do so on behalf of the public
transportation provider, in which case, the State also would have one
year after the rule's effective date to draft and certify its Public
Transportation Agency Safety Plans. Public transportation providers
that operate multiple modes of transit service would have the option of
preparing separate Public Transportation Agency Safety Plans for each
mode, or preparing one Public Transportation Agency Safety Plan for all
modes operated by the provider. If separate safety plans are developed
for multiple modes under FTA's jurisdiction, each Public Transportation
Agency Safety Plan (for example, one for bus service and one for rail
transit service) must comply with the final rule.
A. History
Prior to MAP-21, FTA's authority to require safety plans was
limited to rail transit agencies subject to FTA's State Safety
Oversight Rule. Under existing 49 CFR part 659, any State that has a
rail
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fixed guideway system not subject to FRA regulation is required to
establish a state safety oversight agency, and each state safety
oversight agency must require each rail fixed guideway system within
its jurisdiction to develop a system safety and a system security
program plan. These plans are reviewed and approved by state safety
oversight agencies. 49 CFR 659.17. MAP-21 authorized significant
changes to FTA's State Safety Oversight Program, and FTA is undergoing
a rulemaking to effectuate those changes. The history of 49 CFR part
659, and its relationship to the Public Transportation Safety Program
and today's notice, can be viewed in the NPRM for 49 CFR part 674,
which is the proposed new location for the State Safety Oversight Rule
in the Code of Federal Regulations. See 80 FR 11002, Feb. 27, 2015
(http://www.gpo.gov/fdsys/pkg/FR-2015-02-27/pdf/2015-03841.pdf).
In addition to requiring safety and security plans for rail fixed
guideway systems, FTA established and currently manages a voluntary Bus
Safety Program that has encouraged bus transit agencies to develop
system safety program plans to implement safety program activities. The
voluntary program has been very well received and has promoted
coordination among FTA, the Community Transportation Association of
America (CTAA), and the American Public Transportation Association
(APTA) to provide technical assistance to bus transit agencies to
support system safety program plan development and implementation.
Through FTA's Bus Safety Program, more States have recommended that
their bus transit agencies develop safety plans using templates
provided by FTA through its safety Web site. In addition, a number of
States require both rail and bus transit agencies to develop system
safety program plans.
The aforementioned efforts demonstrate that many transit agencies
embrace the concept and benefits of developing safety plans in order to
document their safety program activities, as well as ensure commitment
from agency executives who often review and sign the safety plan or
policy statement.
Pursuant to 49 U.S.C. 5329(d), Public Transportation Agency Safety
Plans must be drafted and certified by each transit agency regardless
of mode, with the exception of transit providers that receive funds
under 49 U.S.C. 5311 (Section 5311) and small public transportation
providers as defined in this NPRM, which may have their plans drafted
and certified by the State. In addition to this statutory requirement,
FTA is proposing that the State must draft and certify Public
Transportation Agency Safety Plans for operators of public
transportation that receive funds under 49 U.S.C. 5310 (Section 5310),
in an effort to alleviate the regulatory, administrative, and financial
burdens on the small recipients in this program. FTA proposes that a
Section 5310, Section 5311, or small public transportation provider may
opt to draft and certify their own plan. Today's proposed rule helps
advance the regulatory steps taken by FTA and States previously and the
voluntary efforts taken by industry associations, States, and transit
providers to improve transit safety.
B. General Requirements
Pursuant to 49 U. S.C. 5329(d)(1), each Public Transportation
Agency Safety Plan must include, at minimum:
A requirement that the board of directors, or equivalent
entity, approve the plan and any updates;
Methods for identifying and evaluating safety risks
throughout all elements of the recipient's public transportation
system;
Strategies to minimize the exposure of the public,
personnel, and property to hazards and unsafe conditions;
A process and timeline for conducting an annual review and
update of the plan;
Performance targets based on the safety performance
criteria and state of good repair standards set out in the National
Public Transportation Safety Plan;
Assignment of an adequately trained Safety Officer who
reports directly to the general manager, president, or equivalent
officer of the recipient; and
A comprehensive staff training program for operations
personnel and personnel directly responsible for safety that includes
the completion of a safety training program and continuing safety
education and training.
C. The Safety Management Systems (SMS) Approach
Public transportation is one of the safest modes of travel.\3\
However, public transportation incidents occur, and the potential for
catastrophic events remains. In recent years, there have been several
major transit accidents that resulted in fatalities, injuries, and
significant property damage. From 2004 to 2013, the National
Transportation Safety Board (NTSB) reported on nine transit accidents
that, collectively, resulted in 15 fatalities, 297 injuries, and over
$30 million in property damages. During that same period, transit
agencies reported over 40,000 incidents, approximately 2,000
fatalities, and over 76,000 injuries to FTA's National Transit
Database.\4\
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\3\ See United States Department of Transportation, Bureau of
Transportation Statistics, ``Table 2-1: Transportation Fatalities by
Mode 1960-2013,'' available at http://www.rita.dot.gov/bts/sites/rita.dot.gov.bts/files/publications/national_transportation_statistics/html/table_02_01.html_mfd; and
``Table 1-40: U.S. Passenger Miles (Millions) 1960-2013,'' available
at http://www.rita.dot.gov/bts/sites/rita.dot.gov.bts/files/publications/national_transportation_statistics/html/table_01_40.html.
\4\ National Transit Database, Major-Only Time Series, http://www.ntdprogram.gov/ntdprogram/data.htm.
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The NTSB has investigated a number of these accidents and has
issued reports identifying the probable causes and contributing
factors, including deficiencies in the training and supervision of
employees; \5\ deficiencies in the maintenance of equipment and
infrastructure; \6\ and deficiencies in safety management and
oversight, such as weaknesses in transit agencies' safety rules and
procedures,\7\ lack of safety cultures within transit agencies,\8\ and
lack of adequate oversight by State and Federal agencies.\9\ The
deficiencies identified by NTSB will continue to plague the transit
industry as infrastructure ages, skilled employees retire, and transit
agencies continue to endure financial stresses. Through implementation
of the Public Transportation Safety Program, including today's Public
Transportation Agency Safety Plan proposed rulemaking, FTA's goal is to
address these deficiencies and improve the safety of public
transportation.
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\5\ For example, the National Transportation Safety Board (NTSB)
issued Safety Recommendation R-15-010 for the Washington
Metropolitan Area Transit Authority's (WMATA) Metrorail incident on
January 12, 2015, and NTSB issued Safety Recommendations R-15-20 and
R-15-021 for the Chicago Transit Authority's (CTA) incident on March
24, 2015. NTSB's reports for these recommendations are pending.
\6\ NTSB issued Safety Recommendation R-15-008 for the WMATA
Metrorail incident on January 12, 2015; NTSB's report for this
incident is pending. NTSB also issued several Safety Recommendations
in Report RAR-10/02.
\7\ NTSB issued Safety Recommendations R-15-009 and R-15-011 for
the WMATA Metrorail incident on January 12, 2015; NTSB's report for
these recommendations is pending. NTSB also issued several Safety
Recommendations in Reports RAB-15-02, RAR-12/04, and RAR-10/02.
\8\ NTSB cited safety culture concerns in Reports SIR-14/03 and
RAR-07/02.
\9\ NTSB issued Safety Recommendation R-15-007 for the WMATA
Metrorail incident on January 12, 2015, and Safety Recommendations
R-15-018 and R-15-019 for the CTA incident on March 24, 2015. NTSB's
reports for these recommendations are pending. NTSB also issued
several safety recommendations in Reports RAR-12/04, RAR-11/01, and
RAR-10/02.
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[[Page 6348]]
In order to advance a comprehensive approach to safety decision-
making, FTA is proposing to adopt an SMS approach to developing and
implementing the Public Transportation Safety Program, and specifically
the Public Transportation Agency Safety Plans. Following a
recommendation from FTA's designated Federal Advisory Committee--the
Transit Advisory Committee for Safety (TRACS) \10\--on May 13, 2013,
the FTA Administrator issued a Dear Colleague Letter \11\ and answers
to Frequently Asked Questions (FAQs) \12\ to the transit industry
stating FTA's intention to adopt the SMS approach as the basis for its
initiatives to improve the safety of public transportation. This NPRM
seeks comment on proposed SMS processes and activities and their
documentation in the Public Transportation Agency Safety Plans. This
NPRM also seeks public comments on alternatives to requiring adoption
of SMS, such as promoting adoption of SMS through guidance or technical
assistance (while also promulgating regulations that satisfy the
statutory requirements of 49 U.S.C. 5329(d)).
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\10\ Implementing Safety Management System Principles in Rail
Transit Agencies, available at http://www.fta.dot.gov/documents/TRACS_Ltr_Rpt_SMS_fnl.pdf.
\11\ The Dear Colleague Letter is available at http://www.fta.dot.gov/newsroom/12910_15391.html.
\12\ The SMS FAQs are available at http://www.fta.dot.gov/tso_15177.html.
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Safety management is based on the fact that safety is not an
absolute condition--there always will be hazards and risks in public
transportation. However, an approach of primarily reacting to accidents
and incidents by prescribing measures to prevent recurrence alone will
not contribute to sustaining and improving public transportation
safety.
Modern SMS practices that systematically and proactively identify
the factors that contribute to unsafe events, and prevent or minimize
the likelihood of their occurrence, have proven effective in other
transportation sectors. Such practices call for setting safety goals
and objectives, defining clear levels of accountability and
responsibility for safety, establishing proactive approaches to
identifying hazards and managing safety risks in
day[hyphen]to[hyphen]day activities, establishing safety
risk[hyphen]based resource allocation, monitoring and evaluating
performance towards goals, and continuous learning and improvement. SMS
is a significant improvement over more ``reactive'' safety activities,
which tend to focus on discovering and mitigating the cause of an
accident only after that accident has occurred.
SMS integrates safety into all aspects of a transit system's
activities, from planning to design, to construction, to operations,
and to maintenance. SMS builds on the public transportation industry's
three decades of experience with system safety by bringing management
processes, integrated data analysis, and organizational culture more
squarely into the industry's overall risk management framework. SMS is
a management approach that provides processes that ensure each public
transportation agency, no matter its size or service environment, has
the necessary organizational structures, accountabilities, policies,
and procedures in place to direct and control resources to manage
safety optimally. When fully applied, the SMS approach provides a set
of decision-making tools that allow transit agencies to prioritize
safety when making informed operating and capital investment decisions.
SMS is comprised of four essential components: (1) Safety
Management Policy, (2) Safety Risk Management, (3) Safety Assurance,
and (4) Safety Promotion. Each of these components, or ``pillars,'' is
consistent with 49 U.S.C. 5329(d). The table below illustrates the
connection between each of the statutory requirements for safety plans
and the pillars of SMS.
Table 2--Crosswalk Between the Statutory Requirements for Safety Plans and the Pillars of SMS
----------------------------------------------------------------------------------------------------------------
Safety plan must
Statutory provision include: SMS Pillar
----------------------------------------------------------------------------------------------------------------
49 U.S.C. 5329(d)(1)(A)..................... ``a requirement that Safety Management Policy.
the board of directors
(or equivalent entity)
of the recipient
approve the agency
safety plan and any
updates to the agency
safety plan''.
49 U.S.C. 5329(d)(1)(B)..................... ``methods for Safety Risk Management.
identifying and
evaluating safety
risks throughout all
elements of the public
transportation system
of the recipient''.
49 U.S.C. 5329(d)(1)(C)..................... ``strategies to Safety Risk Management.
minimize exposure of
the public, personnel,
and property to
hazards and unsafe
conditions''.
49 U.S.C. 5329(d)(1)(D)..................... ``a process and Safety Assurance.
timeline for
conducting an annual
review and update of
the safety plan of the
recipient''.
49 U.S.C. 5329(d)(1)(E)..................... ``performance targets Safety Management Policy.
based on the safety
performance criteria
and state of good
repair standards''.
49 U.S.C. 5329(d)(1)(F)..................... ``assignment of an Safety Management Policy.
adequately trained
safety officer who
reports directly to
the general manager,
president, or
equivalent officer of
the recipient''.
49 U.S.C. 5329(d)(1)(G)..................... ``a comprehensive staff Safety Promotion.
training program for
the operations
personnel directly
responsible for safety
of the recipient''.
----------------------------------------------------------------------------------------------------------------
Safety Management Policy is the foundation of the organization's
SMS. The safety management policy statement clearly states the
organization's safety objectives and sets forth the policies,
procedures, and organizational structures necessary to accomplish the
safety objectives. It clearly delineates management and employee
responsibilities for safety throughout the organization. It also
ensures that management is actively engaged in the oversight of the
organization's safety performance by requiring regular review of the
safety policy by a designated Accountable Executive (general manager,
president, or other person with similar authority). Within the context
of the Public Transportation Agency Safety Plan, an organization's
safety objectives will be articulated through the setting of
performance targets based on, at a minimum, the safety performance
criteria established in the National Public Transportation Safety Plan,
and state of good repair standards based on the definition of that term
established under the National Transit Asset Management System Rule.
See 49 U.S.C. 5329(d)(1)(E).
Pursuant to the statutory requirements at 49 U.S.C. 5329(d)(1)(B)
and (C), each agency's Public Transportation Agency Safety Plan must
include ``methods for identifying and evaluating safety risks
[[Page 6349]]
throughout all elements of the public transportation system,'' and
``strategies to minimize the exposure of the public, personnel, and
property to hazards and unsafe conditions.'' Each of these requirements
is consistent with the second component of SMS--Safety Risk
Management--which requires the development of processes and activities
to help the organization better identify hazards associated with its
operational systems. Once identified, a transit agency would evaluate
the safety risk associated with the potential consequences of these
hazards, and then institute mitigations, as necessary, to control the
consequences or minimize the safety risk. Additionally, FTA proposes to
require a transit agency to perform hazard identification activities on
those assets that do not meet the state of good repair standards
established under the National Transit Asset Management System.
The statutory requirements at 49 U.S.C. 5329(d)(1)(B), (C), and (D)
also encompass the requirements of the third component of SMS--Safety
Assurance. Safety Assurance requires an organization to monitor the
effectiveness of safety risk mitigations established under Safety Risk
Management. Safety Assurance is also designed to ensure that the
organization meets or exceeds its safety objectives through the
collection, analysis, and assessment of data about the organization's
performance. One of the keys elements of Safety Assurance is a regular
review and update of a transit agency's SMS and overall safety plan to
ensure their effectiveness.
The fourth component of SMS--Safety Promotion--involves the
training, awareness, and communication that support safety. The
training aspect of SMS is consistent with the statutory requirement for
a comprehensive staff training program for operations personnel and
personnel directly responsible for safety. 49 U.S.C. 5329(d)(1)(G).
Service providers within the public transportation industry can
vary greatly based on size, complexity, and operating characteristics.
Transit agencies need safety processes, activities, and tools that
scale to size, complexity, and uniqueness of the transit system. SMS
provides such an approach. SMS is flexible, and can be scaled to the
mode, size, and complexity of any transit operator, in any
environment--urban, suburban, or rural. The extent to which the transit
agency's SMS processes, activities, and tools are used and documented
will vary from agency to agency. For a small bus operation, SMS is
going to be simple and straightforward. For a larger transit agency
with hundreds or thousands of employees and multiple modes, SMS is
going to be more complex.
SMS scales itself to reflect the size and complexity of the
operation, but the fundamental accountability remains the same. SMS
establishes the accountabilities, processes and activities necessary to
ensure that appropriate information rises to the highest levels of the
organization to support decision-making related to safety risk.
However, each transit agency will determine the level of detail
necessary to identify and evaluate its own unique safety risks and
target its resources to manage those safety risks.
Other modes of transportation, such as the aviation and rail
industries, have adopted SMS as the foundation and framework for their
safety systems given the success of SMS in preventing and mitigation
safety outcomes. For example, the Federal Aviation Administration (FAA)
recently adopted SMS and promulgated a regulation which requires
certain air carriers to develop safety plans based on the principles of
SMS.\13\ In the rail industry, FRA is proposing to adopt SMS in its
rulemaking which would require railroads to develop system safety
program plans, largely based on the principles of SMS, under 49 CFR
part 270.
---------------------------------------------------------------------------
\13\ See FAA's Final Rule, ``Safety Management Systems for
Domestic, Flag, and Supplemental Operations Certificate Holders,''
14 CFR parts 5 and 119, 80 FR 1308, Jan. 8, 2015.
---------------------------------------------------------------------------
There is also preliminary evidence of the success of SMS as an
effective method of mitigating and preventing safety outcomes in other
modes of transportation in other parts of the world. For example,
Transport Canada has noted that, in the area of rail safety:
[N]ot only have qualitative benefits been identified, but
statistics reflect a correlation between the introduction of the
safety management system approach in 2001 and improved safety
statistics. Statistical analysis . . . indicates a downward trend in
accident rates . . . over the past 10 years. Moreover, since 2007,
train accidents have decreased by 23% and passenger train accidents
have decreased by 19%. This decrease can be linked to increased
levels of consultation and communication between the three largest
railway companies and Transport Canada, enhanced focus on safety
management systems, and a variety of new safety initiatives related
to operations and infrastructure. It is therefore expected that
updates to safety management systems would help further reduce the
number of accidents, fatalities and injuries, and property
damage.\14\
---------------------------------------------------------------------------
\14\ See http://gazette.gc.ca/rp-pr/p2/2015/2015-02-25/html/sor-dors26-eng.php.
In short, FTA believes that SMS is the most effective way of
preventing and mitigating safety events in the transit industry.
Notwithstanding the above, FTA seeks comments from the public on
alternative regulatory requirements, potentially in combination with
non-mandatory guidance, that would satisfy the statutory requirements
of 49 U.S.C. 5329(d) and that may more cost-effectively improve the
safety of the nation's public transportation systems. FTA specifically
invites the public to provide information to allow the comparison of
the benefits and costs of FTA's proposed requirements to alternative
approaches.
D. The Role of the Accountable Executive With Public Transportation
Agency Safety Plans and Transit Asset Management Plans
Each transit agency has a process by which it budgets, allocates
funds, and plans for the future. In most cases, this decision-making
process is led by a President, General Manager, or Chief Executive
Officer who formulates and proposes capital and operating budgets. For
purposes of the Public Transportation Agency Safety Plan and Transit
Asset Management Plan rules, FTA is proposing to require transit
agencies to identify these individuals as the ``Accountable
Executives'' for those agencies. The Accountable Executive would be
responsible approving the transit agency's Public Transportation Agency
Safety Plan, and any updates thereto. The Accountable Executive would
be responsible for the implementation and maintenance of the SMS. This
Accountable Executive also would be responsible for making decisions
over the human and capital resources needed to develop and maintain the
agency's Transit Asset Management Plan required by 49 U.S.C. 5326. FTA
intends that the individual who is responsible for making decisions
related to the condition of the agency's capital assets, particularly
whether those assets are in a state of good repair, is also responsible
for implementing the agency's SMS and determining whether those assets
are presenting any safety risks. This individual must have the ability
to make budgetary, operational, and capital program decisions to
address these competing needs and issues.
Ultimately, the decisions made by the Accountable Executive
regarding the proposed capital and operating budgets typically are
presented for approval to the transit agency's Board of Directors or
equivalent entity. An Accountable Executive and members of the transit
agency's Board of Directors must make
[[Page 6350]]
strategic decisions regarding operational and service demands, capital
investments, and the safety resource needs of the system. This often
can be challenging due to budget constraints and service demand
pressures. It is important that safety receives appropriate attention
by the Accountable Executive and Board of Directors as they make
decisions regarding operating and capital budgets. Within an SMS
environment, the Accountable Executive would rely on outputs of SMS
processes and activities to ensure that a transit agency's strategic
planning is informed and transparent with regard to the role of safety
in decision-making.
III. Advance Notice of Proposed Rulemaking and Response to Relevant
Comments
As discussed above, FTA issued an ANPRM on October 3, 2013. 78 FR
61251 (http://www.gpo.gov/fdsys/pkg/FR-2013-10-03/pdf/2013-23921.pdf).
The comment period closed on January 2, 2014. The ANPRM sought comment
on 123 questions related to the implementation of the public
transportation safety program and transit asset management. In response
to the ANPRM, FTA received comments from 167 entities, including
States, transit agencies, trade associations, and individuals. FTA
received and reviewed approximately 2,500 pages of comments. Throughout
the ANPRM, FTA expressed its intention to adopt a comprehensive
approach to safety that would be scalable and flexible.
Of the 123 questions presented in the ANPRM, FTA is addressing 42
questions in this notice related to Public Transportation Agency Safety
Plans. Specifically, FTA addresses the following questions in this
notice: 8-10, 17-31, 33-44, 47, 107-110, 112, and 116-121.
To reduce the burden on readers, where applicable and possible, FTA
provides a summation and/or reference to the State Safety Oversight
Program, or Public Transportation Safety Program NPRMs as a way to
direct the reader to the appropriate discussion and limit redundancy.
FTA took relevant comments into consideration when developing this
proposed rule. Below, the ANPRM comments and responses are subdivided
by subject and corresponding question numbers.
A. Scope and Applicability of Public Transportation Agency Safety Plans
B. Safety Management Systems
C. Public Transportation Agency Safety Plan Development, Certification,
and Oversight
D. Role of the Board of Directors (or Equivalent Authority) and the
Chief Safety Officer
E. Coordination of Public Transportation Agency Safety Plan with Other
MAP-21 Programs and Rules
A. Scope and Applicability of Public Transportation Agency Safety Plans
(Questions 22, 31, 33 and 43)
In the Plan Requirements section of the ANPRM, FTA sought input on
the costs and benefits of including rail, bus, and other public
transportation modes under one Public Transportation Agency Safety Plan
for those agencies that operate multiple modes of public
transportation. The State's Role section of the ANPRM sought comment on
the applicability of Public Transportation Agency Safety Plan
requirements to recipients of Section 5311 Tribal Transit Formula and
Tribal Transit Discretionary Program funds. The ANPRM also sought
comment on how to define small public transportation providers under 49
U.S.C. 5307 (Section 5307) and whether or not the scope of Public
Transportation Agency Safety Plan requirements should be less stringent
for smaller public transit providers.
Comments: Commenters were evenly split on whether multiple modes
should be combined into one agency-wide safety plan or whether multi-
modal agencies should develop separate safety plans for each of their
modes. Many commenters felt strongly that a single plan should be
adopted in order to maintain agency-wide consistency and uniformity in
overall safety culture. Other commenters suggested that rail and bus
modes require separate safety plans due to inherent differences in
safety concerns and focus. Additional respondents requested that FTA
allow flexibility on this matter, leaving it up to each individual
agency as to whether to adopt separate safety plans by mode or to
combine all modes into one agency-wide safety plan.
In regards to 49 U.S.C. 5311 Tribal recipients, some commenters
stated that FTA should decide how best to apply safety plan provisions
to these recipients. Other commenters suggested that Section 5311
Tribal recipients should report directly to FTA, and others stated that
Tribal recipients should be included in standard statewide safety
plans. Additionally, a few commenters suggested that 49 U.S.C. 5329(d)
does not apply to State subrecipients or Tribal Transit recipients. One
commenter recommended that Public Transportation Agency Safety Plan
requirements should apply equally to all recipients, including those
receiving funds through the Tribal Transit Formula and Tribal Transit
Discretionary Programs.
In terms of whether or not requirements should be less stringent
for smaller public transit providers, several commenters suggested
that, while there should be consistency in the approach to safety,
smaller transit providers should not be subjected to overly burdensome
requirements and should be allowed to implement less stringent
approaches to safety management. These and other commenters also
suggested that, if possible, smaller transit providers should be able
to pool resources with States or other transit providers for expenses
associated with acquiring safety training, if possible. To this point,
a few commenters recommended that FTA adopt CTAA's Certified Safety and
Security Officer Certification Program as a way to minimize additional
training cost for small transit providers. In general, many commenters
recommended that the scope of FTA's requirement should be scalable and
flexible enough to recognize that smaller transit operations may
contain fewer safety risks than those of larger transit agencies.
With respect to FTA's question as to how it should define small
Section 5307 public transportation providers, several commenters
recommended that the definition should be based on either the
population of the urbanized area (UZA) that the transit agency serves
or by the number of vehicles in operation during peak service.
Specifically, commenters stated that either a population between 50,000
and 200,000, or a population of 200,000 or less, should be used as the
threshold to define a small Section 5307 public transportation
provider. Other commenters stated that 100 buses or fewer in peak
service should be the threshold set for a small Section 5307 public
transportation provider, as it is a measure familiar throughout the
entire public transportation industry and less subject to variation
than other similar measures. A few commenters recommended that the
definition used for waivers in the National Transit Database (NTD)--
thirty or fewer vehicles across all modes and types of service--should
be used as the measure to define a small Section 5307 public
transportation provider. Other commenters suggested that FTA define
these agencies by size of area served, revenue miles, or passenger
counts. Finally, a few commenters suggested that the States should have
no role in
[[Page 6351]]
overseeing the safety of small Section 5307 public transportation
providers.
Response: In today's NPRM, FTA proposes that a transit agency may
include more than one mode of service in a single plan, or may have
individual safety plans for each mode of service. FTA agrees that
flexibility is important on this matter, and that each agency should
have discretion in deciding which approach is appropriate for its
particular operations. FTA does not intend to promulgate safety
regulations that will apply to either commuter rail systems that are
regulated by the FRA or to ferry systems that are regulated by the
United States Coast Guard (USCG). FTA invites additional comments on
how FTA could support the development of Public Transportation Agency
Safety Plans for transit agencies of different sizes and modes.
Although FTA is proposing to provide flexibility to transit
agencies so that they can determine for themselves whether they will
develop a single safety plan for all modes of transit, or whether they
will develop individual safety plans for each mode, FTA is not
proposing to allow transit agencies to utilize their FRA-required
commuter railroad safety plans for other modes of transit regulated by
FTA. FTA notes that on September 7, 2012, FRA issued an NPRM related to
its System Safety Program. 77 FR 55406. In this NPRM, FRA proposes to
require any railroad that operates intercity or commuter passenger
train service and any railroad that provides commuter or other short-
haul rail passenger train service to develop a System Safety Program
Plan. FRA proposes to protect from discovery, evidence, and Federal and
State court proceedings any information compiled or collected solely
for the purpose of developing, implementing, or evaluating a System
Safety Program Plan, including a railroad's analysis of its safety
risks and its identification of safety risk mitigation measures. Given
FRA's proposal and given the fact that FTA does not have similar
statutory authority to protect data, an operator of a public
transportation system which provides commuter rail service regulated by
FRA would not be able to use its System Safety Program Plan for other
modes of public transportation. The public transportation provider
would be required to develop a separate plan or plans for its other
modes of public transportation subject to FTA's safety regulation.
In today's NPRM, FTA proposes, consistent with the statutory
mandate, that requirements of Part 673 would apply to all operators of
public transportation systems that receive Federal financial assistance
under 49 U.S.C. Chapter 53. FTA proposes to define an operator of a
public transportation system to mean a provider of public
transportation as defined under 49 U.S.C. 5302(14). This definition
generally includes regular, continuing shared ride surface
transportation that is open to the public, and which does not provide
service that is closed to the general public and only available for
particular clientele, such as Section 5310-funded service that is not
open to the general public and only available for a particular
clientele. FTA invites comments from the public regarding the
definition of the term, ``operator of a public transportation system.''
While Congress did not specify that Section 5310 providers could
have their plans drafted or certified by a State, FTA notes that 49
U.S.C. 5329 applies to all operators of public transportation systems
that receive Chapter 53 funds. The definition of public transportation
in 49 U.S.C. 5302 includes services that ``are open to a segment of the
general public defined by age, disability, or low income.'' The Section
5310 program historically has funded vehicles for non-profit agencies
that serve these segments of the general public, either in open door
service or closed door service available only to clients of a
particular agency or agencies. Importantly, not every entity that
receives Section 5310 funds is a small non-profit agency with one or
two FTA-funded vehicles. Many Section 5310 providers operate
substantial fixed route or demand response service, including ADA
complementary paratransit service, and in many cases these entities
also receive urbanized (Section 5307) or rural area (Section 5311)
formula funds.
FTA therefore is proposing that the type of service, rather than
the source of FTA funds, be the deciding factor in determining whether
a Section 5310 recipient must have a Public Transportation Agency
Safety Plan. In the case when a Section 5310 provider operates service
that is open door service (open to a segment of the general public),
FTA proposes that the Section 5310 provider must have its Public
Transportation Agency Safety Plan drafted and certified by a State,
unless the Section 5310 provider opts to draft and certify its own
plan. Most of these Section 5310 providers are smaller operators of
public transportation systems, and through this requirement, FTA
intends to alleviate the administrative and financial burdens placed on
Section 5310 providers in complying with this part. In the case when a
Section 5310 provider operates service that is closed to the general
public and only available for a particular clientele, FTA proposes that
neither the State nor the Section 5310 provider would be required to
develop and certify a Public Transportation Agency Safety Plan. In
other words, nonprofit and other community service organizations that
receive Section 5310 funds and provide closed door service would not be
required to draft and certify Public Transportation Agency Safety
Plans.
FTA seeks comments from the public on these proposals, particularly
as to whether a Section 5310 provider operating a public transportation
system should be required to develop and implement a Public
Transportation Agency Safety Plan, whether or not the entity also
receives Section 5307 or Section 5311 funds, and if so, whether that
plan should be drafted and certified by a State. FTA also seeks comment
as to whether a designated recipient under 49 U.S.C. 5310 should draft
and certify Public Transportation Agency Safety Plans on behalf of
Section 5310 providers in large urbanized areas instead of the State,
or if the States should draft and certify those plans.
FTA anticipates scalability and flexibility in agency plan
development, and FTA will provide substantial technical assistance and
guidance to all recipients and subrecipients. Proposed requirements in
today's NPRM recognize the variance in size, complexity, and operating
characteristics of the public transportation industry.
Because 49 U.S.C. 5329(d) provides that States may draft and
certify Public Transportation Agency Safety Plans for Section 5311
providers (most of which are smaller transit agencies) and small public
transportation providers under Section 5307, and because SMS
implementation is inherently scalable, FTA believes that today's
proposal provides sufficient flexibility for States and small transit
providers, such that they would not be expected to incur expenses for
safety management equal to those of a large transit agency. While FTA
proposes that 49 CFR part 673 would apply to all Chapter 53 operators
of public transportation systems, the proposed requirements may be
scaled to address variances in transit agency size, complexity, and
operating environment.
In today's NPRM, FTA proposes to define small public transportation
providers under Section 5307 based on vehicles operating in revenue
service. Any public transportation provider that does not operate rail
fixed guideway service and operates 100 or fewer vehicles in revenue
service, including
[[Page 6352]]
fixed route, general public paratransit, and Americans with
Disabilities Act complementary paratransit, would be considered a small
Section 5307 public transportation provider for purposes of Public
Transportation Agency Safety Plan development and certification.
FTA considered various alternatives suggested by commenters, such
as using a lower vehicles operating in revenue service threshold or UZA
population. FTA evaluated each alternative, assessing safety
performance, resource burden, and consistency with other FTA programs
and definitions. Ultimately, FTA agreed with commenters that
recommended the 100 or fewer vehicles operating in revenue service
option because it results in a lower degree of burden placed on
individual Section 5307 public transportation providers and it creates
alignment with FTA's Transit Asset Management Program proposed rule. By
using this number, FTA is trying to ensure that the lowest
administrative, financial, and regulatory burdens are placed on the
transit industry, including small transit providers. This is a number
that the industry commonly uses to define small Section 5307 bus
agencies, particularly in regards to FTA operating assistance. See 49
U.S.C. 5307(a)(2)(B). FTA also is proposing to use this number as a
benchmark in its Transit Asset Management NPRM, so FTA is proposing to
use the 100-bus threshold here for consistency.
B. Safety Management Systems (Questions 17-21, 27-28)
Section I of the ANPRM highlighted FTA's intention to propose the
SMS approach as the foundation for the development, implementation,
oversight, and enforcement of the new Public Transportation Safety
Program.
The ANPRM posed several questions related to SMS, including
questions related to: (1) Barriers to SMS adoption; (2) the need for
technical assistance; (3) the current use of SMS in the transit
industry and alternative approaches; and (4) the current practices and
challenges with the management of safety risks. These ANPRM questions
also related to the adoption of SMS by FTA and the use of SMS to inform
Public Transportation Agency Safety Plans.
1. Barriers to SMS Adoption and Need for Technical Assistance
Comments: Several commenters suggested that the SMS approach may be
burdensome for smaller transit agencies to implement, and identified or
listed barriers or challenges to adopting SMS principles. Specifically,
these commenters suggested the following as barriers to adoption: A
lack of financial resources, inconsistent or insufficient training on
SMS (both classroom and online), limited staffing for development and
implementation of SMS, the burden of additional data collection and
documentation, and concern that SMS is a departure from tried and true
safety practices. Many respondents requested that training programs be
scalable based on agency size; several responders pointed out that
attendance at off-site training programs would be practically
impossible for small agencies, where a single employee is often the
only person capable of fulfilling critical agency functions. There were
many requests for FTA to provide training programs online to ease this
burden on already taxed agencies and employees. Other commenters noted
the challenges for agencies with boards of directors consisting of
local politicians whose decisions are subject to political pressure;
the importance of distinguishing between the FRA-required model and the
SMS model for agencies that operate in a shared rail corridor; and the
ability of FTA to provide clear guidance on defining how SMS principles
are to be interpreted and applied. Additionally, a few commenters
suggested that SMS might be challenging to implement within the current
management/labor collective bargaining agreement process. Other
commenters suggested that, for a system that contracts for some or all
of its service, implementing SMS would be challenging and difficult. A
few commenters stated that the practical benefit from a fully-
implemented SMS far outweighs the effort needed to overcome potential
challenges. Conversely, a few other commenters were opposed to any
adoption of SMS by Federal regulation whatsoever.
Response: FTA proposes to adopt SMS as the framework for managing
safety risks in the transit industry because SMS is flexible and
scalable, and also provides a level of implementation that is
commensurate with the size and complexity of transit agencies. For
additional information on SMS, FTA recommends readers review Appendix A
to FTA's NPRM on State Safety Oversight Programs (see 80 FR 11002, Feb.
27, 2015; http://www.gpo.gov/;fdsys/pkg/FR-2015-02-27/pdf/2015-
03841.pdf), FTA's SMS Framework guidance document (see http://www.fta.dot.gov/documents/FTA_SMS_Framework.pdf), and FTA's forthcoming
National Public Transportation Safety Plan. Today's proposal reflects
key elements of the law that are consistent with SMS principles and
methods. Each element of 49 U.S.C. 5329(d)(1) sets forth requirements
for transit agency safety management that are critical to an effective
SMS, namely: Executive management accountability, the identification of
hazards, the evaluation of safety risks, the strategies to mitigate
these safety risks, regular reviews of a transit agency's safety
system, direct lines of safety reporting, and a commitment to safety
training.
SMS processes and activities can assist transit agencies in
identifying safety concerns and issues, evaluating these concerns for
their potential impact on transit safety, and developing cost-effective
mitigations to address safety concerns so that an accident or safety
event can be prevented. FTA does not agree that SMS is a departure from
tried and true safety practices. SMS, as a management system, embraces
current safety practices and activities, and ensures that transit
agency executive management is presented with timely information to act
on safety risks in a proactive manner.
Today's rulemaking proposes that each transit agency would be
required to implement SMS. FTA believes that it is critical for each
transit agency to work through the process of identifying and managing
safety risks that may be unique to its size, operations, and operating
environment. Because SMS processes, activities and tools can be adapted
to the size, complexity, and uniqueness of the transit agency, FTA
believes it is the best approach to address the requirements set forth
in 49 U.S.C. 5329(d)(1). For example, the safety reporting program of a
large agency might require rather important and robust IT support for
data management and several safety data analysts, whereas the same
program for a small agency might be administered with a spreadsheet for
data management and a part-time safety analyst or a staff person who
analyzes safety data as an ancillary duty.
To reduce the administrative, financial, and regulatory burdens on
small public transportation providers, the proposed rule requires
States to draft and certify Public Transportation Agency Safety Plans--
and documentation of SMS processes therein--for Section 5310, Section
5311, and small public transportation providers, unless those providers
opt to draft and certify their own safety plans. Although FTA proposes
to require States to draft and certify Public Transportation Agency
Safety Plans, FTA proposes that each recipient which operates a public
transportation system implement its own safety plan,
[[Page 6353]]
regardless of the size of the agency. In other words, States will lend
their resources and technical expertise to smaller operators of public
transportation by drafting the safety plans and by certifying to FTA
that the plans they drafted satisfy all of FTA's requirements. The
plans will include various elements, such as processes for identifying
safety hazards and risks, processes for evaluating those safety hazards
and risks, and processes for mitigating those safety hazards and risks,
as appropriate. The transit agencies will have to perform those
activities themselves--not the States--thus, the individual transit
agencies are responsible for ``implementing'' and ``carrying out'' the
plans that are drafted by the States, but the States will be ultimately
responsible for drafting and certification functions (unless a small
transit agency opts to draft and certify its own agency safety plan).
Additionally, each transit agency would be responsible for implementing
SMS that scales to the size and complexity of the organization. As a
result, FTA expects that the Public Transportation Agency Safety Plan
also will scale for smaller organizations.
In an effort to further reduce the administrative, financial, and
regulatory burdens on recipients and other public transportation
operators, FTA will develop and issue templates for Public
Transportation Agency Safety Plans for agencies of different sizes. FTA
also will develop and issue guidance and other tools, and provide
technical assistance, to support SMS development and implementation.
Some commenters suggested that a need for SMS training exists, and
that transit agencies may experience challenges with the development
and implementation of SMS. To address these concerns, FTA will continue
to develop and provide safety training for the industry, and FTA also
will collect and provide information on other sources of outside SMS
training. Currently, FTA provides a number of courses to support
transit agency safety training needs. FTA intends to expand these
offerings, including online courses, to support general safety
training, as well as training on SMS principles and methods. FTA is
piloting SMS training courses. Additionally, FTA will launch an Agency
SMS Implementation Pilot Program to help reduce the burden on transit
agencies for developing SMS by identifying effective safety practices,
including training that will be shared with the industry. These
efforts, coupled with technical guidance, will directly assist those
agencies for which a lack of training and guidance may be a barrier to
SMS implementation. Recently, FTA issued Final Interim Safety
Certification Training Provisions which set forth the safety training
requirements for Federal and State Safety Oversight Agency personnel
and their contractors who conduct safety oversight audits and
examinations of public transportation systems not otherwise regulated
by another Federal agency. See 80 FR 10619 (Feb. 27, 2015) (http://www.gpo.gov/fdsys/pkg/FR-2015-02-27/pdf/2015-03842.pdf). Consistent
with the statutory provisions of 49 U.S.C. 5329(d)(1)(G), FTA's
proposed training requirements and technical assistance discussed in
this NPRM are intended to address the training needs of those
individuals directly responsible for safety, and they are intended to
complement the requirements and technical assistance for safety
oversight personnel as discussed in the Final Interim Safety
Certification Training Provisions.
FTA disagrees with commenters who suggested that there might be
additional challenges with SMS adoption because of political and legal
issues with Boards of Directors and local politics. Just as a Board of
Directors is responsible for the service levels provided to the
community and budgets adopted, they are also accountable for safety
outcomes. FTA believes that SMS provides greater transparency in the
prioritization of, and decision-making regarding, a transit agency's
safety risks. Today's notice mirrors statutory language in 49 U.S.C.
5329(d) with respect to executive level accountability and would
require that a transit agency's Board of Directors (or equivalent
authority) review and approve the Public Transportation Agency Safety
Plan.
One commenter suggested that a challenge to SMS adoption may be the
difficulty in distinguishing between the FRA-required safety model and
the SMS model. FTA believes that SMS implementation encourages
coordination in Safety Risk Management for all modes operated by a
transit agency. However, and in response to this comment, FTA notes
that it has different statutory authority than FRA for regulating
safety, and to the extent another Federal agency already regulates
safety of a particular mode of transportation, FTA does not intend to
promulgate duplicative, inconsistent, or conflicting regulations.
Therefore, agencies that operate passenger ferries regulated by the
United States Coast Guard or commuter rail service regulated by FRA
would not have to develop FTA safety plans for those modes of service.
FTA seeks public comments on whether any aspect of this proposed rule
is duplicative, inconsistent, or conflicts with other Federal agency
regulations.
With respect to comments related to perceived challenges in SMS
implementation due to management/labor collective bargaining agreements
or for systems that contract for service, today's proposed rule does
not include requirements regarding collective bargaining, and FTA
anticipates that each transit agency would benefit from increased
information on safety issues and performance.
2. Current Use of SMS in the Transit Industry and Alternative
Approaches
Comments: Several commenters suggested that they currently practice
SMS-related activities, and provided detailed responses. Commenters
identified, in part, the following list of activities and practices:
Data-driven safety performance management; employee safety reporting
programs; committee structures to support safety communication and
safety risk evaluation; safety management policy statements; senior
management accountability; safety audits and inspections; designated
Safety Officers and staff; safety accountabilities and
responsibilities; proactive hazard identification and analysis;
accident investigation to determine probable cause; safety promotion
and communication; and safety training. One commenter indicated that
his agency has reorganized its safety department to reflect the four
major components of SMS.
Some commenters indicated that they provide alternative safety
management approaches. Some suggested that FTA adopt a centralized,
State or regional, safety management or other approach that would
lessen the burden for States. One commenter suggested that FTA provide
an option for transit agencies that operate fewer than 100 vehicles, or
other small transit agencies, to participate in insurance risk pools
(and be exempted from any requirement to develop and implement SMS),
while other commenters expressed their opposition to any rulemaking by
FTA on SMS because they did not want to be subject to Federal
regulations on safety. Finally, several commenters indicated that they
were in agreement with FTA's adoption of SMS.
Response: FTA believes that SMS builds on industry safety
practices, which is evidenced by the number of SMS-related activities
currently being practiced by several of the commenters. FTA proposes to
adopt SMS to guide the
[[Page 6354]]
advancement of FTA's safety rulemakings, and therefore, today's rule
proposes that Public Transportation Agency Safety Plans must address
the basic four components of SMS: (1) Safety Management Policy, (2)
Safety Risk Management, (3) Safety Assurance, and (4) Safety Promotion
(explained in more detail in the Section-by-Section Analysis of Subpart
C of the Public Transportation Agency Safety Plan, below).
Recipients may utilize additional safety management practices, but
recipients would be required to meet the basic requirements as set
forth in today's proposed rule. Based on comments received, FTA is
confident that the transit industry already has some elements of SMS in
place.
With respect to commenters who suggested a more centralized State
management approach, today's proposal requires States to draft and
certify Public Transportation Agency Safety Plans on behalf of Section
5310, Section 5311, and small public transportation providers (as
defined in this NPRM). FTA disagrees with the commenter who proposed
that transit agencies operating fewer than 100 vehicles be exempt from
SMS requirements in favor of insurance risk pools. While insurance risk
pools may take into account safety risk, FTA does not believe that they
meet all elements of an SMS, nor do they satisfy all of the statutory
requirements of Public Transportation Agency Safety Plans. Nothing in
today's proposal would prevent transit agencies from participating in
insurance risk pools in addition to implementing a Public
Transportation Agency Safety Plan with SMS.
3. Current Practices and Challenges With the Management of Safety Risk
Related to Human Factors
Comments: Many commenters stated they currently apply some type of
risk-based approach in managing safety risks related to human factors.
These approaches included drug and alcohol program testing, post-
incident testing, commercial driver's license physical examination
requirements, fitness for duty physical examinations, medical
evaluations, application of the Federal Motor Carrier Safety
Administration's hours of service regulations, fatigue awareness
training, medication reporting, sleep disorder screening, and
evaluating the ability of employees to comply with procedures and
rules.
One commenter suggested that another potential issue with adopting
a risk-based approach to human factors relates to transit employees'
rights to health privacy. A few commenters recommended that FTA take a
statistical sample approach to gather data on this subject, which could
inform and guide further formulation of agency safety plan
requirements.
Response: FTA is encouraged that many transit agencies already take
a risk-based approach in managing safety risks related to human
factors, and are doing so through a number of different methods,
including those listed above. This is a positive step towards
implementing the Safety Risk Management component of SMS, and FTA
encourages agencies to continue to conduct these risk-based approaches
to managing safety risks related to human factors. FTA also encourages
agencies to take into account bicycle and pedestrian safety concerns,
along with other factors, as agencies are conducting Safety Risk
Management.\15\ As discussed above, FTA intends to provide additional
guidance, technical assistance, and training regarding SMS.
---------------------------------------------------------------------------
\15\ Secretary Anthony Foxx recently issued a bicycle and
pedestrian safety initiative, and FTA encourages transit agencies to
consider that initiative when developing their safety plans (see
http://www.dot.gov/sites/dot.gov/files/docs/safer_people_safer_streets_summary_doc_acc_v1-11-9.pdf).
---------------------------------------------------------------------------
C. Public Transportation Agency Safety Plan Development, Certification,
and Oversight (Questions 25-26, 30, 34-42, 44-47, 107-110, 112)
The ANPRM posed several questions related to the development,
certification, and oversight of Public Transportation Agency Safety
Plans. Specifically, FTA sought comments in the following areas: (1)
Plan drafting and updating, (2) plan certification, (3) the role of the
State, and (4) oversight of the plan. Questions regarding the drafting,
certification, or oversight of a Public Transportation Agency Safety
Plan that included reference to the role of the State are addressed in
Section 3: Role of the State, below.
1. Plan Drafting and Updating
Comments: Many commenters suggested that FTA can reduce the
administrative burden of drafting Public Transportation Agency Safety
Plans by providing transit agencies with templates, models, and
assistance to support agency safety plan development. Some commenters
stated that FTA should provide the safety plan templates and a few
others stated that State Departments of Transportation (State DOTs)
should provide the templates. Other commenters stated that FTA could
reduce the burden by not requiring annual safety plan updates. A few
commenters recommended that either FTA not promulgate or reduce the
requirements for small transit providers. Finally, a few commenters
suggested that FTA utilize only the current level of NTD reporting
requirements, and not expand safety data reporting, as it would add
unnecessary burdens.
Response: As mentioned previously, FTA intends to provide States
and the industry with templates to guide and support Public
Transportation Agency Safety Plan development. FTA does not anticipate
that a small transit provider (or its State in the case of Section
5310, Section 5311, and small public transportation providers) would
require as complex of a Public Transportation Agency Safety Plan as a
larger transit provider. One of the key elements of Public
Transportation Agency Safety Plans would be the development and
implementation of SMS principles, and inherent to SMS is its
scalability and flexibility. FTA anticipates the scalability and
flexibility in plan development will not unduly burden any particular
recipient, and to reduce any burdens, FTA intends to develop and issue
to the industry electronic templates, guidance, and training.
FTA is proposing that recipients and other operators of public
transportation systems update their Public Transportation Agency Safety
Plans annually so that they remain current to meet evolving needs and
so that they capture any new best practices in the industry. Readers
should note that reviews and updates to a Public Transportation Agency
Safety Plan developed by rail fixed guideway systems must adhere to the
requirements that are codified at 49 CFR part 659, until FTA issues a
final rule for State Safety Oversight at 49 CFR part 674.
2. Plan Certification and Review
FTA sought comment on the mechanics of Public Transportation Agency
Safety Plan certification, including the certification for
subrecipients; whether a self-assessment, or set of procedures, should
be followed prior to certification; and the role of FTA in reviewing
plans and certifications.
Comments: Many commenters responded that they preferred the use of
FTA's annual Certifications and Assurances process for certifying that
Public Transportation Agency Safety Plans comply with FTA's statutory
and regulatory requirements, particularly given the industry's
familiarity with this process as it is used currently for FTA's
standard grant programs. Several of these same commenters suggested
that subrecipient certification should be a
[[Page 6355]]
separate process between the subrecipient agency and the designated
recipient (or State). In addition, a few commenters stated that
certification should not be through FTA's annual Certification and
Assurance process, and a few commenters stated that recipients should
self-certify. Several commenters also suggested that FTA should review
the safety plans as part of FTA's Triennial and State Management Review
(SMR) oversight processes, and not as part of the grant approval
process.
Many commenters indicated that they do not support FTA's review of
Public Transportation Agency Safety Plan certifications on the basis of
a weighted random sample. A few commenters suggested that Public
Transportation Agency Safety Plan certifications be reviewed on the
basis of a weighted random sample, as a suitable alternative to
reviewing all plans. Some commenters also indicated that, although a
weighted random sample could be appropriate, it is important that the
system is not overly burdensome.
Some commenters suggested that FTA establish self-assessment
procedures, but only one commenter indicated that FTA should establish
procedures for recipients to follow before certifying their Public
Transportation Agency Safety Plans. Many commenters suggested that it
would be helpful if FTA established a self-assessment checklist, or a
tool for recipients to utilize, to assist with the certification of
their Public Transportation Agency Safety Plans. Many of these same
commenters added that the self-assessment tool should make clear which
components of the plans are required by law, and which components are
at the recipient's discretion. A few commenters indicated that an FTA
self-assessment tool would not be helpful because agencies differ
substantially in their plans and practices.
Response: In keeping with the statutory requirements of 49 U.S.C.
5329(d), and many of the comments, FTA proposes that each transit
agency self-certify that it has established a Public Transportation
Agency Safety Plan that complies with all of FTA's statutory and
regulatory requirements through FTA's annual Certification and
Assurances process. FTA proposes that States are required to certify on
behalf of subrecipients, which is discussed in greater detail below.
FTA is not proposing that it review safety plans prior to grant
approval, but FTA intends to review the plans through its Triennial
Review and SMR oversight processes. FTA intends to conduct additional
oversight of Public Transportation Agency Safety Plans and SMS
programs, outside of the standing Triennial Review and SMR processes,
at its discretion. FTA will consider developing a self-assessment tool,
although this notice does not propose the use of a self-assessment tool
prior to agency safety plan certification. In addition, FTA intends to
provide the industry with technical assistance, as needed.
3. Role of the State
The ANPRM posed several questions related to the role of States in
regards to Public Transportation Agency Safety Plans. In the State's
Role section of the ANPRM, FTA sought comments with respect to States
and Section 5311 and small Section 5307 public transportation
providers, including: (1) The drafting and updating of Public
Transportation Agency Safety Plans, (2) certifying Public
Transportation Agency Safety Plans, and (3) overseeing and reviewing
the implementation of Public Transportation Agency Safety Plans
(covered in the subsequent ``Oversight of Public Transportation Agency
Safety Plans'' section).
a. Role of the State in Drafting Public Transportation Agency Safety
Plans
Comments: Many commenters recommended that FTA should allow States
to draft State safety plans for subrecipients. Many commenters
indicated their support for a national and/or statewide template to
support States' development of Public Transportation Agency Safety
Plans, as it would relieve the burden on States and bring more
consistency to the plans. A subset of these commenters recommended that
FTA work closely with industry associations such as CTAA and APTA in
the development of the national or statewide Public Transportation
Agency Safety Plan templates, including those that could be modified to
reflect individual transit agency operating needs.
Given the significant degree of variance in transit agencies' size,
complexity, and operating environments, several commenters suggested
that FTA should not allow States to develop statewide plans applicable
to subrecipients and small public transportation providers. These
commenters recommended that FTA require transit agencies to develop
their own Public Transportation Agency Safety Plans. Other commenters
agreed, stating that Public Transportation Agency Safety Plans should
reflect local safety implementation and that a statewide plan may not
provide sufficient detail for the management of safety from agency to
agency. Other commenters responded with concern that States may not
have sufficient resources and technical capacity to develop Public
Transportation Agency Safety Plans. Finally, a few commenters suggested
that it would be too great of an administrative burden on States to
develop Public Transportation Agency Safety Plans.
Many commenters indicated that the ability to modify the statewide
safety plan template would be important because safety risks can vary
from agency to agency. Several commenters believed that there would be
utility with FTA or State-generated templates to support Public
Transportation Agency Safety Plan development. A few commenters
suggested that FTA allow States to have the option of developing
statewide plans, and these commenters recommended that FTA should not
require States to develop statewide plans.
In terms of the number of safety plans that a State might be
expected to draft, many commenters stated that this number could vary
from state-to-state and range anywhere from 20 to 70 plans. Another set
of commenters stated that the number of safety plans a State might be
expected to draft should be determined by the State.
Response: In this NPRM, FTA proposes to require States to draft
Public Transportation Agency Safety Plans on behalf of Section 5310,
Section 5311, and small public transportation providers. FTA agrees
with commenters who recommended that FTA should require States to
develop plans on behalf of these providers. As discussed above, this
proposal is consistent with the statutory provisions of 49 U.S.C.
5329(d)(3), and it reduces the administrative, financial, and
regulatory burden on smaller transit agencies that may not have the
resources or technical expertise to draft and certify Public
Transportation Agency Safety Plans. The number of safety plans that a
State may prepare will vary from state-to-state, and although FTA is
requiring the State to develop the plan, FTA is not instructing States
on how to develop those plans. For example, a State may draft a single
statewide plan or it may draft individual plans on behalf of each
Section 5310, Section 5311, and small public transportation provider.
FTA proposes that each Section 5310, Section 5311, and small public
transportation provider may opt to draft their own plan if they choose
to do so.
In addition, FTA seeks comments from the public regarding the
following questions: If a State was to draft a statewide plan, how
would the plan
[[Page 6356]]
respond to the SMS component of Safety Risk Management (i.e.
identification of individual agency risks and hazards)? Should FTA
require drafting of single statewide plans or individual safety plans
on behalf of Section 5310, Section 5311, and small public
transportation providers in that State? Or should FTA defer to the
State's preference on this requirement?
With respect to the potential burden of plan development, FTA
agrees with commenters that templates and guidance would be beneficial.
FTA plans to provide technical assistance, training, and templates to
support plan development. Similar to the variety of safety plan
templates that FTA has provided in the past as part of its Bus Safety
Program, FTA will provide safety plan templates for states and transit
agencies, keeping in consideration differences in size, complexity and
operating characteristics.
b. Role of State in Certifying Public Transportation Agency Safety
Plans
In its ANPRM, FTA sought comments with respect to the type of
assistance that should be provided to States that choose to certify to
FTA the Public Transportation Agency Safety Plans on behalf of small
operators. FTA also sought comments on the types of requirements and
procedures that FTA should establish for State certification of safety
plans.
Comments: Many commenters suggested that a significant burden would
be imposed upon States if FTA required them to certify each and every
Public Transportation Agency Safety Plan. These commenters expressed
that, in part, the burden would be due to a lack of staff resources at
States and the amount of time that staff would need to review and
certify individual safety plans. A number of commenters suggested that
FTA should allow maximum flexibility for States. A few commenters
suggested that the burden would be minimal since they already have a
role in monitoring agency safety plans. Many commenters suggested that
FTA could reduce the overall administrative burden if it provides
technical assistance and sample templates. Many commenters stated that
FTA should not establish any requirements or procedures for States that
draft and certify Public Transportation Agency Safety Plans for
subrecipients. Other commenters expressed an opinion that 49 U.S.C.
5329(d) does not require States' subrecipients to develop safety plans.
A few commenters suggested that FTA should establish requirements for
States that develop and certify Public Transportation Agency Safety
Plans for their subrecipients.
Response: FTA proposes to require each State to review and certify
Public Transportation Agency Safety Plans for all Section 5310, Section
5311, and small public transportation providers in that State. FTA also
proposes to require States to certify individual subrecipient plans, or
certify a statewide plan on behalf of its subrecipients, particularly
given the statutory requirement at 49 U.S.C. 5329 that any ``operator
of a public transportation system'' which receives Chapter 53 financial
assistance must draft and certify a Public Transportation Agency Safety
Plan, regardless of its status as a recipient or subrecipient. In
addition, any Section 5310, Section 5311, or small public
transportation provider that opts to draft its own plan may also
certify its own plan. With respect to the process for certification of
Public Transportation Agency Safety Plans, as noted above, FTA proposes
to use its annual Certifications and Assurances process for the
certification of the plans.
4. Oversight and Review of Public Transportation Agency Safety Plans
The State's Role section of the ANPRM posed questions relating to
the purview a State might have in overseeing subrecipients, how
oversight should be provided, and the time estimated to provide such
oversight. In addition, FTA asked those States that currently perform
safety operations oversight for non-rail modes, to provide information
on these programs. Finally, this section posed questions about the
annual review of Public Transportation Agency Safety Plans.
Comments: Many commenters suggested that States should provide
oversight of transit agencies for which the State drafts and certifies
the Public Transportation Agency Safety Plan (or statewide safety
plan). Other commenters suggested that this form of oversight could
represent a conflict of interest for the State. Additional commenters
suggested that States do not have the staff and expertise to draft and
certify plans.
Many commenters suggested that FTA should require State DOTs to
maintain lists of certified subrecipients that have established safety
plans or are covered by a statewide plan. A few commenters noted that
some states already maintain lists of subrecipients. Other commenters
suggested that State DOTs should not be required to maintain these
types of lists, either because all Section 5311 subrecipients already
will be covered by a state management plan, or in their opinion, 49
U.S.C. 5329(d) does not require individual safety plans for State DOT
subrecipients so there is no need to maintain a list.
In response to FTA's question regarding current safety oversight
practices, some commenters stated that they do not currently perform
safety oversight for non-rail modes. Other commenters suggested that
the oversight role could be effectively streamlined by combining bus
oversight into each State's existing rail oversight program, but other
commenters disagreed. Additional commenters stated that combining
oversight of rail and non-rail transit safety may work in some States,
but it may not work in others, and therefore, FTA should not require
transit agencies to combine oversight practices. Some commenters stated
that bus and rail system elements are very different, so the oversight
programs would be best administered separately. Many commenters
recommended that States should have some sort of oversight role of non-
rail transit systems and could combine bus oversight into each State's
existing rail oversight program, but others disagreed that they could
be combined. Finally, several commenters suggested that additional
financial and staffing resources would be necessary if FTA requires
States to provide oversight of non-rail transit, and that adding
additional staff would take considerable time.
Many commenters suggested that FTA should not have a role in
reviewing the Public Transportation Agency Safety Plans. Other
commenters recommended that FTA review the Public Transportation Agency
Safety Plans through the Triennial and SMR review processes. Finally,
many commenters suggested that an annual review would be too frequent
for transit agencies that only provide bus service, and an annual
review may increase a transit agency's operating costs and be difficult
to implement without diverting resources from other agency programs.
Response: With today's notice, FTA does not propose additional
oversight requirements for States that draft and certify Public
Transportation Agency Safety Plans. FTA anticipates that oversight for
Public Transportation Agency Safety Plan implementation for agencies
that do not operate a rail fixed guideway system would be conducted
primarily through FTA's SMR and Triennial Review Programs. FTA is
likely to conduct additional oversight of Public Transportation Agency
Safety Plans outside of these programs. FTA agrees with commenters who
suggested that States likely already maintain lists of subrecipients,
and therefore is not
[[Page 6357]]
proposing a requirement for additional subrecipient lists.
With respect to the review of Public Transportation Agency Safety
Plans, as mentioned earlier, FTA intends to maintain the authority to
review the plans during SMR and Triennial Reviews or at its sole
discretion, such as in the event that FTA identifies circumstances
posing a safety risk. FTA disagrees with commenters who suggested that
an annual review would be too frequent. Pursuant to 49 U.S.C.
5329(d)(1)(D), transit agencies are required to perform annual reviews
of their Public Transportation Agency Safety Plans. FTA proposes that
each transit agency document its timeline for an annual review and
update, as necessary, of its Public Transportation Agency Safety Plan
(Sec. 673.11(a)(7)).
D. Role of the Board of Directors (or Equivalent Authority) and the
Chief Safety Officer (Questions 23, 29)
In the Plan Requirements section of the ANPRM, FTA posed a question
regarding the role of a transit agency's Board of Directors (or
equivalent authority) with the approval of its Public Transportation
Agency Safety Plan. FTA also posed questions regarding the roles and
responsibilities of a transit agency's executive leadership, including
the combination of roles and responsibilities, particularly in smaller
operations, where the same individual may function as the transit
agency's general manager, operations manager, and Safety Officer.
Related to this question, FTA asked if the combination of these roles
could cause any conflict of interest between safety and any other
agency responsibilities.
1. Board of Directors (or Equivalent Authority)
Comments: Many commenters suggested that if a Transit agency does
not have a Board of Directors, ``equivalent entities'' to a Board of
Directors generally would be those that have authority to make day-to-
day policy decisions. In the cases where a transit agency does not have
a Board of Directors, several commenters suggested that FTA should
allow a transit agency's General Manager to certify that it has
reviewed a Public Transportation Agency Safety Plan through FTA's
Certifications and Assurances process. Other commenters noted that the
attributes, functions, and authorities of an ``equivalent entity'' to a
Board of Directors should be the same as that of a Board of Directors.
A few commenters suggested that, in some instances, boards of directors
and equivalent entities may be serving in a volunteer capacity, and
lack the experience and knowledge to develop or certify safety plans.
These commenters suggested that only the State or FTA may have the
experience and knowledge to develop and certify Public Transportation
Agency Safety Plans. A few commenters stated that if there is no Board
of Directors, then only the State (or State Safety Oversight Agency) or
FTA should be allowed to approve Public Transportation Agency Safety
Plans.
Response: FTA is proposing to define the term ``Equivalent
Authority'' to mean an entity that carries out duties similar to that
of a Board of Directors, including, at the very minimum, sufficient
authority to review and approve a recipient or subrecipient's Public
Transportation Agency Safety Plan. If a recipient or subrecipient does
not have a Board of Directors to review and approve a Public
Transportation Agency Safety Plan, then FTA proposes that the recipient
or subrecipient must identify an ``Equivalent Authority'' as defined in
today's proposal. For example, an ``Equivalent Authority'' could be the
policy decision-maker/grant manager for a Section 5310, Section 5311,
or small public transportation provider; the city council and/or city
manager for a city; a county legislature for a county; or a State
transportation commission for a State. Pursuant to 49 U.S.C.
5329(d)(1)(A), FTA proposes that each Public Transportation Agency
Safety Plan, and subsequent updates, would be reviewed and approved by
the Board of Directors (or Equivalent Authority).
Regarding the role of State Safety Oversight Agencies, it would be
a conflict of interest for those oversight authorities to be involved
in the development of the Public Transportation Agency Safety Plans
that they are charged with overseeing. Consequently, FTA is not
proposing that a State Safety Oversight Agency serve as an ``Equivalent
Authority'' for purposes of this rule.
2. Chief Safety Officer
Comments: When asked what other responsibilities might be combined
with the Safety Officer role, particularly in smaller operations where
the same individual may function as the general manager, operations
manager, and Safety Officer, many commenters acknowledged that the
Safety Officer position could be combined with other complementary non-
operational positions, but these commenters recommended that the Safety
Officer position should not be combined with operational roles because
the combined duties would create a conflict of interest. Many other
commenters noted that small agencies do not have the resources to
dedicate a single position to a Safety Officer role, and in some cases,
combine operational, maintenance, and safety functions under a single
individual. A few commenters stated that a Safety Officer very likely
will serve many functions within small transit agencies, and these
commenters believe that there are no conflicts of interest with this
arrangement.
A few commenters suggested that a transit agency could combine the
following responsibilities with the Safety Officer position: training,
emergency preparedness and management, security, risk management
(claims), quality assurance, and environmental management. One
commenter also stated that FTA needs to be very diligent about
codifying new requirements, and should consider a different set of
rules for the 20 to 50 largest transit providers than for smaller
operators nationwide.
Response: Pursuant to 49 U.S.C. 5329(d)(1)(F), a Public
Transportation Agency Safety Plan must include the ``assignment of an
adequately trained Safety Officer who reports directly to the general
manager, president, or equivalent officer of the recipient.'' The
intent for this direct reporting relationship is to ensure that safety
matters are directly and routinely elevated from the most senior Safety
Officer to the Accountable Executive.
FTA agrees that many smaller agencies may not have sufficient
resources for a dedicated Safety Officer. In many cases, a transit
agency's Safety Officer may serve several other functions, including
those related to safety, operations, and maintenance. Consequently, FTA
proposes that Section 5310, Section 5311, and small public
transportation providers may assign an adequately trained Safety
Officer to serve other agency functions. For example, it would be
reasonable to anticipate that in a very small bus transit agency, the
general manager or operations manager may be the same individual as the
Safety Officer.
Notwithstanding this proposal for smaller transit providers, FTA
believes that it is preferable for larger transit systems to have a
Safety Officer who focuses exclusively on safety-related issues, so for
rail fixed guideway systems and all other recipients, FTA proposes that
the Safety Officer may not also serve in an operational or maintenance
capacity, and that the Safety Officer must report directly to the chief
executive officer, general manager, president, or other equivalent
officer.
[[Page 6358]]
E. Coordination of Public Transportation Agency Safety Plan With Other
MAP-21 Programs and Plans (Questions 8-10, 24, 116-121)
In the ANPRM, FTA discussed the statutory requirements regarding
coordination of the Public Transportation Agency Safety Plan with the
National Public Transportation Safety Plan at 49 U.S.C. 5329(b) and the
Transit Asset Management System at 49 U.S.C. 5326. FTA also discussed
the statutory requirements regarding coordination of the Public
Transportation Agency Safety Plan with the planning requirements at 49
U.S.C. 5303 and 49 U.S.C. 5304. These provisions require Metropolitan
Planning Organizations (MPOs) and States to coordinate the selection of
their performance targets with the performance targets set by FTA
recipients for safety and state of good repair.
Comments: Commenters generally opposed FTA issuing prescriptive
criteria for safety, state of good repair, or statewide and
metropolitan planning processes. To address the law's requirements,
commenters generally encouraged FTA to allow transit agencies to
establish their own safety and state of good repair definitions, and to
allow transit agencies to develop their own performance measures in
their Public Transportation Agency Safety Plans. Several commenters
expressed the opinion that state of good repair considerations should
only become relevant when safety issues are identified. These
commenters generally recommended that FTA focus the Public
Transportation Agency Safety Plan and SMS implementation on processes
used to ensure the identification of these issues. Other commenters
disputed the existence of a nexus or connection between state of good
repair and safety. Several commenters pointed out that although safety
is an important consideration in state of good repair, it is only one
consideration, and existing processes and capabilities already account
for safety issues in asset management and statewide/MPO planning
processes.
Many commenters believed that FTA should not establish any other
requirements for integrating Public Transportation Agency Safety Plans
and Transit Asset Management Plan goals, measures, and targets into
each other or the transportation planning process. Other commenters
stated that FTA should not establish any requirements regarding
coordination. Some commenters stated that the MPO Certification process
is the most appropriate venue to ensure that Public Transportation
Agency Safety Plan's and the Transit Asset Management Plan's goals,
measures, and targets from individual transit systems are integrated
into the metropolitan transportation planning process. A small group of
commenters recommended that any FTA requirements be as general as
possible and not undercut fundamental State and local prerogatives.
Response: FTA recognizes that safety is only one factor in the
transit asset management and statewide and local planning processes,
and likewise, that safety programs do not deal exclusively with asset
condition and capital investments but rather touch on a wide variety of
operational, engineering, and maintenance activities. While the
connections between and among safety, transit asset management, and
statewide and metropolitan planning may appear tenuous to some
commenters, MAP-21 makes them a matter of law. Specifically, Congress
authorized a new Transit Asset Management Program at 49 U.S.C. 5326 to
establish a system to monitor, manage, and improve the state of good
repair of the nation's public transportation capital assets. Further,
in the enhanced requirements for Statewide and Metropolitan planning at
49 U.S.C. 5303(h)(2)(B)(iii) and 5304(d)(2)(B)(ii), respectively,
Congress mandated that the performance targets set in the Metropolitan
and Statewide Planning processes be ``coordinate[d] to the maximum
extent practicable'' with transit agencies' performance targets for
safety and asset management. In their entirety, the requirements of 49
U.S.C. 5329, 5326, 5303 and 5304 support one another and the
coordination of national, State, and local efforts to improve transit
safety and increase the reliability and performance of the nation's
public transportation systems.
Pursuant to 49 U.S.C. 5329(b)(2)(B), FTA must develop and implement
a National Public Transportation Safety Plan that includes safety
performance criteria and the definition of state of good repair, which
must be defined through a transit asset management rulemaking. 49
U.S.C. 5326(b)(1) and (d). Pursuant to 49 U.S.C. 5329(d)(1)(E), a
Public Transportation Agency Safety Plan must include safety
performance targets based on the safety performance criteria in the
National Public Transportation Safety Plan and the state of good repair
standards established under the National Transit Asset Management
System. 49 U.S.C. 5329(b)(2), 49 U.S.C. 5326(b)(1).
Although not required in this proposed rule, pursuant to the
planning requirements at 49 U.S.C. 5303 and 5304 and the proposed
regulations thereunder at 23 CFR part 450 (see 79 FR 31784, June 2,
2014), States and MPOs must integrate into the Statewide and
metropolitan planning processes the developed goals, objectives,
performance measures, and targets described in the Public
Transportation Agency Safety Plans and Transit Asset Management Plans,
either directly or by reference. Further, in the Statewide Long Range
Plans and Metropolitan Transportation Plans, States should and MPOs
must (1) describe the safety and asset management performance measures
and targets; (2) report on the condition of the transit systems with
respect to the safety and asset management performance targets; and (3)
report on the progress achieved in meeting the safety and asset
management performance targets in comparison with the conditions
reported in previous years. 49 U.S.C. 5303(i)(2)(B) and (C); 49 U.S.C.
5304(f)(7). States and MPOs also must coordinate in the selection of
transit safety performance and state of good repair targets with the
transit agencies to the maximum extent practicable. 49 U.S.C.
5303(h)(2)(B)(ii); 49 U.S.C. 5304(d)(2)(B)(ii). Finally, transportation
improvement programs (TIPs) and statewide transportation improvement
programs (STIPs) must include, to the maximum extent practicable, a
discussion of the anticipated effects of the TIP or STIP toward
achieving the safety and asset management performance targets, linking
the safety and asset management investment priorities to those
performance targets. 49 U.S.C. 5303(j)(2)(D); 49 U.S.C. 5304(g)(4).
The integration of a transit agency's safety and asset management
performance targets into the State and MPO planning process would
inform States and MPOs in the setting of their goals, objectives, and
investment strategies for public transportation. This integrated
planning process should result in States and MPOs being able to
identify investment and management strategies to improve or preserve
the safety of public transportation systems and the condition of
transit capital assets.
In today's NPRM, FTA proposes in Sec. 673.11(a)(3) that transit
agencies must include in their Public Transportation Agency Safety
Plans performance targets that are based on the safety performance
criteria and state of good repair standards established by FTA under
its National Public Transportation Safety Plan and the National Transit
Asset Management System, respectively. In Sec. 673.15, FTA proposes to
require
[[Page 6359]]
transit agencies to coordinate with States and MPOs in the selection of
State and MPO safety performance targets.
In addition, the development of safety performance criteria by FTA
and safety performance targets by transit agencies support FTA's
overall efforts to monitor the safety performance of the public
transportation industry, in keeping with recommendations made by the
U.S. Government Accountability Office in its January 2011 report, ``FTA
Programs are Helping Address Transit Agencies' Safety Challenges, but
Improved Performance Goals and Measures could Better Focus Efforts''
(http://www.gao.gov/new.items/d11199.pdf).
FTA is providing additional information regarding the coordination
of Public Transportation Agency Safety Plans, the Public Transportation
Safety Program, National Public Transportation Safety Plan, and Transit
Asset Management Plans in separate NPRMs issued to implement the MAP-21
provisions codified at 49 U.S.C. 5329(b) and 5326, respectively. FTA
and FHWA jointly issued an NPRM on June 2, 2014, that proposes new
requirements for Metropolitan, Statewide and Non-Metropolitan Planning
to implement the new MAP-21 provisions codified at 49 U.S.C. 5303 and
5304, and in the future, FTA and FHWA will issue a joint final rule to
guide the new performance-based approach to planning. See 79 FR 31784.
Section-by-Section Analysis
Subpart A--General
Sec. 673.1 Applicability
This section explains that this regulation would apply to all
States, local governmental authorities, and other operators of public
transportation systems that are recipients of Federal financial
assistance under 49 U.S.C. Chapter 53. In accordance with 49 U.S.C.
5329(d), a Public Transportation Agency Safety Plan would be required
of all operators of public transportation systems, whereas in the past,
a ``system safety program plan'' was only required of rail fixed
guideway systems, currently codified in 49 CFR 659.17. This requirement
would go into effect one year after the effective date of the final
rule.
Sec. 673.3 Policy
This section explains that FTA proposes the use of principles and
methods of SMS as the basis for this regulation and all other
regulations and policies FTA will issue under the authority of 49
U.S.C. 5329, to the extent practicable and consistent with law and
other applicable requirements (such as those for regulatory review). It
further proposes FTA's intent to set standards for SMS that are
flexible and can be tailored to the size and operating complexity of
the recipient.
Sec. 673.5 Definitions
This section sets forth a number of proposed definitions, many of
which are based on the principles and methods of SMS. For example,
readers should refer to ``Accountable Executive,'' ``Hazard,''
``Operator of a Public Transportation System,'' ``Safety Assurance,''
``Safety Management System,'' ``Safety Management Policy,'' ``Safety
Promotion,'' and ``Safety Risk Management.'' In recent years SMS has
emerged as the preferable practice for enhancing safety in all modes of
transportation, and the Secretary of Transportation instructed each of
the Department's operating administrations to develop rules, plans, and
programs to apply SMS to their grant recipients and regulated
communities. See http://www.fedeval.net/docs/2012Coplen_1.pdf. Many of
the definitions for applying the principles and methods of SMS in
proposed Sec. 673.5 are very similar to those set forth in the FAA's
SMS regulation, titled ``Safety Management Systems for Domestic, Flag,
and Supplemental Operations Certificate Holders,'' 14 CFR parts 5 and
119, 80 FR 1308, Jan. 8, 2015.
In addition, both the Administrator's May 13, 2013 Dear Colleague
letter and a set of frequently asked questions about SMS are available
on FTA's Web site at http://www.fta.dot.gov/tso_15177.html. Finally,
FTA has provided its ``Safety Management Systems Framework,'' in
Appendix A to FTA's State Safety Oversight NPRM. 80 FR 11002, Feb. 27,
2015 (http://www.gpo.gov/fdsys/pkg/FR-2015-02-27/pdf/2015-03841.pdf).
FTA anticipates that it will be incorporating these same definitions
for applying SMS to public transportation in its related rulemakings
for the Public Transportation Safety Program and the Public
Transportation Safety Certification Training Program.
FTA proposes to include a definition for ``Accountable Executive''
that identifies the person at a transit agency that has the
responsibility and accountability for the implementation of SMS and
control and direction of the Public Transportation Agency Safety Plan
and the Transit Asset Management Plan. FTA proposes to include
definitions for ``Safety Risk Management,'' ``Safety Risk,'' ``Safety
Assurance,'' and ``Safety Management Policy,'' all key terms to the
implementation of SMS.
This section also proposes a number of definitions for terms used
repeatedly throughout the other safety programs authorized by 49 U.S.C.
5329. Some of these terms are included in FTA's proposed State Safety
Oversight NPRM which was issued prior to this NPRM, but the wording of
the definitions has been slightly changed in today's rulemaking for
sake of clarity. FTA's intent is for all terms to have the same
definition in all of its safety programs, and FTA will reconcile those
terms in the appropriate rulemakings. Readers should refer,
specifically, to the definitions of ``Accident,'' ``Event,''
``Hazard,'' ``Incident,'' ``Investigation,'' ``Occurrence,'' and
``Transit Agency.''
Pursuant to 49 U.S.C. 5329(d)(3)(B), FTA must issue a rule that
designates which 49 U.S.C. 5307 small public transportation providers
may have States draft Public Transportation Agency Safety Plans on
their behalf. This section proposes a definition for ``Small Public
Transportation Provider'' (in accordance with 49 U.S.C. 5329(d)(3)(B))
as a Section 5307 recipient or subrecipient that does not operate rail
fixed guideway service and operates 100 or fewer vehicles in revenue
service.
New definitions are proposed for the terms ``National Public
Transportation Safety Plan,'' ``Transit Asset Management Plan,'' and
``Equivalent Authority,'' all of which are consistent with the use of
those terms in the statutes and FTA's related rulemakings on safety and
transit asset management.
Subpart B--Public Transportation Agency Safety Plans
Sec. 673.11 General Requirements
This section proposes the minimum requirements for the elements to
be included in a Public Transportation Agency Safety Plan. Pursuant to
49 U.S.C 5329(d)(1), this section proposes that each operator of public
transportation that receives Federal financial assistance under 49
U.S.C. Chapter 53 must develop and certify a Public Transportation
Agency Safety Plan. As provided by 49 U.S.C. 5329(d)(3)(A), Sec.
673.11(d) proposes that a State must draft the Public Transportation
Agency Safety Plan for 49 U.S.C. 5310 and 5311 providers, as well as
for any small public transportation providers as defined in today's
NPRM. A State is not required to develop a Public Transportation Agency
Safety Plan for a particular transit agency that receives Federal
financial assistance under 49 U.S.C. 5310, 49 U.S.C. 5311, or a small
public transportation provider, if that agency
[[Page 6360]]
notifies the State that it will develop its own plan.
Section 673.11(a)(1) proposes that the Public Transportation Agency
Safety Plan, and any updates, must be signed by the transit agency's
designated Accountable Executive and be approved by the transit
agency's Board of Directors, or equivalent entity. This proposal is
consistent with the statutory requirement in 49 U.S.C. 5329(d)(1)(A)
that a Board of Directors (or equivalent entity) approve the transit
agency's safety plan. In short, under today's NPRM, accountability for
the contents in the Public Transportation Agency Safety Plan is
formally elevated to the Accountable Executive and Board of Directors.
Section 673.11(a)(7) proposes that this occurs annually to a timeline
established by the agency, or State, in accordance with 49 U.S.C.
5329(d)(1)(D).
Pursuant to 49 U.S.C. 5329(d)(1)(B), (C), (D), (E), (F), and (G), a
transit agency must establish: Methods for identifying and evaluating
safety risks throughout all elements of its public transportation
system; strategies to minimize the exposure of the public, personnel,
and property to hazards and unsafe conditions; a process and timeline
for conducting an annual review and update of its safety plan; safety
performance targets; a safety officer who reports directly to the
general manager, president, or equivalent officer; and a comprehensive
staff training program for the operations personnel and personnel
directly responsible for safety. These statutory requirements fit into
the four key pillars of SMS, as discussed in more detail above: Safety
Management Policy, Safety Risk Management, Safety Assurance, and Safety
Promotion. Consequently, FTA proposes to require each transit agency to
develop and implement an SMS under Sec. 673.11(a)(2); this SMS will
satisfy the statutory requirements of 49 U.S.C. 5329(d)(1)(B), (C),
(D), (E), (F), and (G). In this proposal, FTA recognizes that a Public
Transportation Agency Safety Plan for a large, multi-modal, complex
public transportation system most likely will be more complex than that
of a very small bus operator. The scalability of SMS will allow transit
agencies to develop safety plans that will meet the unique needs of
their operating environments.
Proposed Sec. 673.11(a)(3) explains that each Public
Transportation Agency Safety Plan must include safety performance
targets based on the safety performance criteria and state of good
repair measures established by FTA in the National Public
Transportation Safety Plan. In the National Public Transportation
Safety Plan, FTA is proposing to adopt four initial safety performance
criteria: (1) Fatalities, (2) Injuries, (3) Safety Events, and (4)
System Reliability.\16\ These safety performance criteria represent
categories of measures that are intended to reduce safety events,
fatalities, and injuries. These measures are broad so that they will be
relevant to all public transportation modes, and they are intended to
focus transit agencies on the development of specific and measureable
targets, as well as the actions each agency would implement to improve
their own safety outcomes. Through the SMS process, FTA expects transit
agencies to develop their own performance indicators and regularly
monitor the performance of their systems to ensure that they are
meeting their targets and improving safety outcomes. FTA is proposing
to adopt these measures through a separate notice and comment process,
and FTA directs readers to that docket if readers are interested in
submitting comments on the safety performance criteria. FTA expects
transit agencies to evaluate their safety performances and determine
whether they should change their safety performance targets at least
annually when the transit agencies are reviewing and updating their
Public Transportation Agency Safety Plans. A State or transit agency
must make its safety performance targets available to States and
Metropolitan Planning Organizations (MPO) to aid States and MPOs in the
selection of their own performance targets.
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\16\ FTA may adopt additional performance criteria through
future public comment processes.
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Section 673.11(a)(4) proposes that a Public Transportation Agency
Safety Plan must address any future standards or requirements, as
applicable, set forth in FTA's Public Transportation Safety Program and
FTA's National Public Transportation Safety Plan.
Section 673.11(a)(5) proposes that each transit agency must
establish a process and timeline for conducting an annual review and
update of its Public Transportation Agency Safety Plan.
Proposed Sec. 673.11(a)(6) would require that each rail transit
agency include, or incorporate by reference, in its Public
Transportation Agency Safety Plan an emergency preparedness and
response plan. FTA intends that each emergency preparedness and
response plan would address, at a minimum: The assignment of employee
responsibilities, as necessary and appropriate, during an emergency;
the integration of responses to all hazards, as appropriate; and
coordination with Federal, State, regional, and local officials with
roles and responsibilities for emergency preparedness and response in
the transit agency's service area. FTA understands that a transit
agency may have developed an emergency preparedness and response plan
that addresses these minimum requirements in accordance with
regulations from other Federal and State agencies. Notably, FTA
currently requires rail fixed guideway systems to have emergency
preparedness plans through the State Safety Oversight Rule at 49 CFR
659.19(k). FTA intends to require rail transit systems to continue to
implement the twenty-one elements of their system safety program plans
as currently required under 49 CFR part 659; the pillars of SMS cover
the remaining twenty elements. FTA has developed a crosswalk analysis
between each of the twenty-one elements of system safety program plans
and each of the elements of SMS. FTA is adding this crosswalk to the
docket, and FTA is making the crosswalk available on its Web site at
http://fta.dot.gov/tso.html.
FTA notes that there are safety models that include emergency
preparedness as a key element. For example, FAA requires certain air
carriers to have emergency preparedness plans. See 14 CFR 5.27.
Additionally, FRA is proposing to require railroads to have emergency
preparedness plans. See 77 FR 55403 (Sept. 7, 2012). Recent safety-
related events have demonstrated the need for emergency preparedness
plans in improving safety outcomes nationally.
In addition to the above general requirements, FTA would expect a
transit agency to comply with all other applicable Federal, State, and
local requirements, laws, regulations, and codes as they may relate to
safety.\17\
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\17\ See FTA's State Safety Oversight Rule at 49 CFR 659.19(r)
(2015).
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Section 673.11(b) proposes that the Public Transportation Agency
Safety Plan may include more than one mode of service. However, if a
transit agency has a safety plan for its commuter rail service,
passenger ferry service, or aviation service, then the transit agency
may not use that plan for purposes of satisfying 49 CFR part 673; the
transit agency must develop a separate Public Transportation Agency
Safety Plan consistent with this part. FTA invites specific comment on
how FTA could support the development of Public Transportation Agency
Safety Plans for Transit Agencies of different sizes and modes.
Section 673.11(c) proposes that a transit agency must maintain its
Public Transportation Agency Safety Plan in
[[Page 6361]]
accordance with the recordkeeping requirements of Subpart D of this
Part.
Section 673.11(d) proposes that a State must draft and certify a
Public Transportation Agency Safety Plan on behalf of any 49 U.S.C.
5310, 49 U.S.C. 5311, or small public transportation provider. A State
is not required to draft a Public Transportation Agency Safety Plan if
a 49 U.S.C. 5310, 49 U.S.C. 5311, or small public transportation
provider notifies the State that it will draft its own plan. In either
instance, the transit agency must carry out the plan.
If a State drafts and certifies a Public Transportation Agency
Safety Plan on behalf of a transit agency, and the transit agency later
opts to draft and certify its own Public Transportation Agency Safety
Plan, then the transit agency would be required to notify the State,
and the transit agency would have one year from the date of the
notification to draft and certify a Public Transportation Agency Safety
Plan that is compliant with this part.
Section 673.11(e) proposes that any rail fixed guideway system that
had a system safety program plan, as per requirements set forth in 49
CFR part 659 as of October 1, 2012, may keep that plan in effect until
one year after the effective date of the final rule.
Sec. 673.11(f) proposes that agencies that operate passenger
ferries regulated by USCG or commuter rail service regulated by FRA are
not required to develop agency safety plans for those modes of service.
Sec. 673.13 Certification of Compliance
Section 673.13(a) provides that not later than one year after the
effective date of the final rule, each transit agency must certify its
compliance with the requirements of this part. For transit agencies
that receive Federal funding under 49 U.S.C. 5310, 49 U.S.C. 5311, and
those identified as small public transportation providers under 49
U.S.C. 5307, a State must certify compliance unless the provider opts
to draft and certify its own safety plan. In those cases where a State
certifies compliance for 49 U.S.C. 5310, 49 U.S.C. 5311, or small
public transportation provider under 49 U.S.C. 5307, this certification
must also occur within one year after the effective date of the final
rule.
In addition to certification, Public Transportation Agency Safety
Plans that are developed by transit agencies with rail transit systems
must also be reviewed and approved by the appropriate State Safety
Oversight Agency as per the requirements set forth in 49 CFR part 659,
and the future recodification of those requirements at 49 CFR part 674.
In accordance with 49 U.S.C. 5329(e)(4)(iv), State Safety Oversight
Agencies must have the authority to review, approve, oversee, and
enforce the implementation of the Public Transportation Agency Safety
Plans of transit agencies operating rail fixed guideway public
transportation systems.
Section 673.13(b) requires that each transit agency or State
certify compliance with part 673 on an annual basis.
Sec. 673.15 Coordination with Metropolitan, Statewide, and Non-
Metropolitan Planning Processes
This section proposes to require a State or transit agency to make
its safety performance targets available to States and Metropolitan
Planning Organizations to aid in the planning process. This section
also proposes to require, to the maximum extent practicable, a State or
transit agency to coordinate with States and Metropolitan Planning
Organizations in the selection of State and MPO safety performance
targets.
Subpart C--Safety Management Systems
Sec. 673.21 General Requirements
This section outlines the SMS elements that each transit agency
must establish in its Public Transportation Agency Safety Plan. Under
today's NPRM, each transit agency would be required to implement an
SMS; however, FTA would require that each transit agency would scale
the SMS to the size, scope, and complexity of the transit agency's
operations. Each transit agency would be required to establish its
activities to include the four main pillars of SMS: (1) Safety
Management Policy; (2) Safety Risk Management; (3) Safety Assurance;
and (4) Safety Promotion. FTA expects that the scope and detail for
each activity will vary based on the size and complexity of the system.
FTA anticipates that activities, and documentation of those activities,
for a small bus transit agency will be substantially less than those of
a large multi-modal system. To help clarify SMS development and
implementation, FTA intends to provide guidance to the industry,
including templates designed to accommodate the variance in transit
system mode, size and complexity.
Sec. 673.23 Safety Management Policy
Under proposed Sec. 673.23(a), a transit agency would be required
to establish the organizational accountabilities and responsibilities
necessary for implementing SMS and capture these under the first
component of SMS, Safety Management Policy. The success of a transit
agency's SMS is dependent upon the commitment of the entire
organization and begins with the highest levels of transit agency
management. FTA expects that the level of detail for organizational
accountabilities and responsibilities would be commensurate with the
size and complexity of the transit agency.
The Safety Management Policy statement would contain the transit
agency's safety objectives. These objectives would include a broad
description of the agency's overarching safety goals, which would be
based on that agency's unique needs. The Safety Management Policy
statement also would include a reference to the agency's safety
objectives and performance targets.
Under Sec. 673.23(b), a transit agency would need to include in
its Safety Management Policy statement a process that allows employees
to report safety conditions to senior management. This process would
provide protections for employees who report safety conditions to
senior management and a description of behaviors that are unacceptable
and that would not be exempt from disciplinary actions. This is a
critical SMS element for ensuring safety. A reporting program allows
employees who identify safety hazards and risks in the day-to-day
duties to directly notify senior personnel, without fear of reprisal,
so that the hazards and risks can be mitigated or eliminated. NTSB has
emphasized the need for transit agencies to have confidential employee
safety reporting programs,\18\ and this need was discussed at length in
NTSB's Investigate Hearing on the WMATA Smoke and Electrical Arcing
Incident in Washington, DC on June 23 and 24, 2015.\19\
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\18\ NTSB issued Safety Recommendation R-10/02 for the WMATA
Metrorail train collision accident on June 22, 2009, found at:
http://www.ntsb.gov/investigations/AccidentReports/Reports/RAR1002.pdf. Through this report, NTSB recommends that ``FTA
facilitate the development of non-punitive safety reporting programs
at all transit agencies [in order] to collect reports from employees
in all divisions within their agencies.''
\19\ See the NTSB's hearing materials at http://www.ntsb.gov/news/events/Pages/2015_WMATA_Washington_DC_IHG_Agenda.aspx. and
http://dms.ntsb.gov/pubdms/search/document.cfm?docID=432379&docketID=57383&mkey=90596.
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Section 673.23(c) proposes that the Safety Management Policy
statement is communicated throughout the transit agency, as well as to
the Board of Directors (or equivalent authority), and is made readily
available to all employees of the transit agency and contractors.
[[Page 6362]]
Section 673.23(d) proposes that the transit agency establish its
accountabilities and responsibilities necessary to meet the established
safety performance targets. In general, a transit agency would need to
describe its organizational structure and the procedures it must adopt
in order for it to meet its safety performance targets. A transit
agency would describe the authorities, accountabilities, and
responsibilities for safety management as they relate to the
development and management of the transit agency's SMS. The level of
detail in this section would be commensurate with the size and
complexity of transit agency operations. At a minimum, a transit agency
would need to identify an Accountable Executive, a Chief Safety Officer
or SMS Executive, and agency leadership, executive management, and key
staff who would be responsible for the implementation of a transit
agency's safety plan.
Sec. 673.25 Safety Risk Management
Section 673.25(a) proposes that each transit agency establish and
implement its process for managing safety risk, including the
identification of hazards, analysis of hazards, evaluation of safety
risk, and mitigation of safety risk, in all elements of its public
transportation system, including changes to its public transportation
system that may impact safety performance. At a minimum, FTA would
expect a transit agency to apply its safety risk management process to
the design of a new public transportation system, changes to its
existing public transportation system, new operations of service to the
public, new operations or maintenance procedures or organizational
change, and changes to operations or maintenance procedures.
Additionally, FTA would expect a transit agency to develop measures to
ensure that safety principles, requirements, and representatives are
included in the transit agency's procurement process.\20\
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\20\ See FTA's State Safety Oversight Rule at 49 CFR 659.19(u).
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Section 673.25(b)(1) would require a transit agency to establish a
process for hazard identification and analysis, including the
identification of the sources, both proactive and reactive, for
identifying hazards. Activities for hazard identification analysis
could include formalized processes where a transit agency identifies
hazards throughout its entire system, logs them into a database,
performs risk analyses, and identifies mitigation measures. These
activities also could include safety focus groups, reviews of safety
reporting trends, and for smaller bus systems, it could mean sitting
down with a few operators in a room, discussing hazards on the system,
deciding which ones pose the greatest risk, and then developing
mitigation.
A transit agency must apply its process for hazard identification
and analysis to all aspects of its system, including but not limited to
its operational activities, system expansions, and state of good repair
activities. A transit agency should consider the results of its asset
condition assessments while performing safety hazard identification
activities within its SMS. The results of the condition assessments,
and subsequent SMS analysis, will inform a transit agency's
determination as to whether an asset meets the state of good repair
standards under 49 CFR part 625.
Section 673.25(b)(2) would require a transit agency to include, as
a source for hazard identification and analysis, data and information
provided by an oversight authority and the FTA.
FTA proposes that hazard identification and analysis activities are
commensurate with the size of the transit agency operations. For
example, FTA would anticipate that the number of identified hazards for
a small, rural bus system may be less than the number of hazards
identified for a large, multi-modal system.
Section 673.25(c) proposes that a transit agency establish
activities for the evaluation and prioritization of safety risks
related to the potential consequences of hazards identified and
analyzed in Sec. 673.25(b). Transit agencies would need to evaluate
safety risks in terms of both probability (the likelihood of the hazard
producing the potential consequences) and severity (the damage, or the
potential consequences of a hazard, that may be caused if the hazard is
not eliminated or its consequences are not successfully mitigated).
A transit agency also would need to establish criteria for the
development of safety risk mitigations that are necessary based on the
results of the agency's safety risk evaluation. For example, a transit
agency may decide that the criteria for developing safety risk
mitigations could be the identification of a safety risk, benefit-cost
analysis, a system level change (such as the addition of new technology
on a vehicle), a change to operational procedures, or the expansion of
service. To further illustrate these examples, a transit agency may
color code different levels of safety risk (``red'' as high, ``yellow''
as medium, and ``green'' as minor) and develop different types of
safety risk mitigations to correspond to those levels.
Sec. 673.27 Safety Assurance
Section 673.27(a) proposes that a transit agency develop and
implement safety assurance activities that include safety performance
monitoring and measurement and continuous improvement. FTA would expect
that a transit agency's safety assurance activities would be scaled to
the size and complexity of its operations, with the objective being
that a transit agency can accurately determine whether or not it is
meeting its safety objectives and safety performance targets, as well
as the extent to which its SMS is being implemented effectively.
Each transit agency would be required to conduct an annual review
of its safety risk mitigations. FTA anticipates that each transit
agency would identify those safety risk mitigations that should be
reviewed each year to ensure they are still effective.
In Sec. 673.27(b), FTA proposes that a transit agency identify the
data and information that it must collect from its operations,
maintenance, and public transportation services so that it may monitor
the agency's safety performance as well as the effectiveness of its
SMS. Under this section, a transit agency would be responsible for the
ongoing monitoring of its operations and maintenance protocols and
procedures, and any safety risk mitigations, to assure that they are
being implemented as planned.
This section proposes that a transit agency investigate safety
events (as defined in this NPRM) and any reports from non-compliance
with applicable regulations, standards, and applicable legal authority.
Finally, the section would require the continuous monitoring of
information reported through the employee safety reporting program.
In Sec. 673.27(c), a transit agency would be required to manage
changes in its system. A transit agency would be required to develop a
process for identifying and assessing changes that may introduce new
hazards or impact the transit agency's safety performance. If a transit
agency determines that a change might impact safety, then the transit
agency would need to evaluate the change using Safety Risk Management
activities established under Sec. 673.25.
In Sec. 673.27(d), a transit agency would be required to regularly
assess its safety performance. If a transit agency identifies any
deficiencies during a safety performance assessment, it would be
required to develop and carry out,
[[Page 6363]]
under the direction of the Accountable Executive, a plan to address the
identified safety deficiencies. FTA would expect a transit agency to
conduct a safety performance assessment at least annually, and the
safety performance assessment can be completed in conjunction with the
annual review and update to its overall safety plan in Sec.
673.11(a)(5).
Sec. 673.29 Safety Promotion
This section proposes that a transit agency establish competencies
and training for all agency employees directly responsible for the
management of safety, and establish and maintain the means for
communicating safety performance and SMS information. Section 673.29(a)
would require a transit agency to establish a comprehensive safety
training program. Through the safety training programs, a transit
agency would require each employee, as applicable, to complete training
to enable the person to meet his or her role and responsibilities for
safety management, and to complete refresher training, as necessary, to
stay current with the agency's safety management practices and
procedures.
Section 673.29(b) would require a transit agency to ensure that all
employees are aware of any policies, activities, and procedures that
are related to their role and safety management responsibilities.
Safety communications would include information on hazards and safety
risks that are relevant to the employee's role and responsibilities;
explain reasons that a transit agency introduces or changes policies,
activities or procedures; and communicates to an employee when actions
are taken in response to reports submitted by the employee through an
employee safety reporting program. FTA expects that each transit agency
would define the means and mechanisms for effective safety
communication based on their organization, structure, and size of
operations.
Subpart D--Safety Plan Documentation and Recordkeeping
Sec. 673.31 Safety Plan Documentation
This section proposes that transit agencies keep records of their
documents that meet the requirements of this part. FTA would expect a
transit agency to maintain documents that set forth its Public
Transportation Agency Safety Plan, including those related to the
implementation of its SMS, such as results from SMS processes and
activities. For the purpose of reviews, investigations, audits, or
other purposes, the section proposes that these documents be made
available to FTA, State Safety Oversight Agencies in the case of rail
transit systems, and other Federal agencies as appropriate. A transit
agency would be required to maintain any of these documents for a
minimum of three years.
Sec. 673.33 Safety Plan Records
This section proposes that, in addition to the documents indicated
above, a transit agency must maintain, at a minimum, the following
records: safety risk mitigations, results from a transit agency's
safety performance assessment, and records of employee safety training.
FTA anticipates that the amount of records maintained by each transit
agency would vary based on the agency's size and complexity. For
example, it is reasonable to expect that a smaller agency would have
fewer safety risk mitigations and employee training records to
maintain, whereas a large transit agency may have a robust safety
management information system to track and monitor its safety risk
mitigations, and perhaps another system dedicated to tracking employee
safety training. For safety performance monitoring and measurement, the
section proposes that the transit agency maintain documentation that it
would use to determine how well it is meeting its safety objectives and
safety performance targets, as well as safety performance indicators
used to determine the effectiveness of SMS implementation.
V. Regulatory Analyses and Notices
Executive Order 12866 (Regulatory Planning and Review), Executive Order
13563 (Improving Regulation and Regulatory Review), and USDOT
Regulatory Policies and Procedures
Executive Orders and 12866 and 13563 direct agencies to propose or
adopt a regulation only upon a reasoned determination that its benefits
justify its costs (recognizing that some benefits and costs are
difficult to quantify); tailor its regulations to impose the least
burden on society; assess all costs and benefits of available
regulatory alternatives; and, if regulation is necessary, to select
regulatory approaches that maximizes net benefits--including potential
economic, environmental, public health, and safety effects,
distributive impacts, and equity. Executive Order 13563 also emphasizes
the importance of harmonizing rules and promoting flexibility.
This proposed rule has been drafted and reviewed in accordance with
the principles set forth in Executive Orders 12866 and 13563. FTA has
determined that this proposed rule likely is ``economically
significant'' under Executive Order 12866, in that it may lead to
transit agencies making investment and prioritization decisions related
to mitigation of safety risks that would result in economic impacts
that could exceed $100 million in a year. However, as discussed in
greater detail below, FTA was unable to quantify the potential impacts
of this rule beyond the costs for transit agencies to develop and
implement Public Transportation Agency Safety Plans. FTA was able to
estimate costs of approximately $86 million in the first year, and $70
million per year thereafter. These costs result from developing and
certifying safety plans, documenting the SMS approach, implementing
SMS, and associated recordkeeping. The estimated costs do not include
the costs of actions that transit agencies would be required to take to
mitigate risk as a result of implementing this rule, such as vehicle
modifications, additional training, technology investments, or changes
to operating procedures. The annualized cost of proposed requirements
is estimated to be approximately $71 million. FTA requests comment on
any information that could assist in quantifying the costs, benefits,
and transfers associated with this rulemaking.
FTA has placed in the docket a Regulatory Impact Analysis (RIA)
that analyzes the benefits and costs of the proposed regulatory changes
in accordance with Executive Orders 12866 and 13563, and United States
Department of Transportation (USDOT) policy.
FTA also conducted this analysis to satisfy the statutory
requirement at 49 U.S.C. 5329(h)(1) that it take into consideration the
costs and benefits related to each action that it takes under 49 U.S.C.
5329, including this proposed rule.
The proposed rule would require all operators of public
transportation systems that receive Federal financial assistance under
49 U.S.C. Chapter 53 to develop and implement Public Transportation
Safety Plans as required by Section 20021 of the Moving Ahead for
Progress in the 21st Century Act (MAP-21), now codified at 49 U.S.C.
5329, using the SMS approach.
SMS is a flexible, scalable approach to safety that has been widely
adopted across multiple modes of transportation in both the public and
private sectors. It employs a systematic, data-driven approach in which
risks to safety are identified, then controlled or mitigated to
acceptable levels. SMS brings
[[Page 6364]]
business-like methods and principles to safety, similar to the ways in
which an organization manages its finances, through safety plans, with
targets and performance indicators, and continuous monitoring of safety
performance throughout an organization.
In addition to responding to the specific legislative mandate, the
proposed rule responds to National Transportation Safety Board (NTSB)
recommendations about expanding the use of SMS to reduce the risks of
transit crashes. From 2004 to 2013, NTSB reported on nine transit
accidents that, collectively, resulted in 15 fatalities, 297 injuries,
and over $30 million in property damages. Although transit systems have
historically been among the safest means of surface transportation, the
transit industry is facing increased pressures at a time when ridership
is growing, infrastructure is aging, and large numbers of the workforce
are retiring. During that same 2004-2013 time period, transit agencies
reported over 40,000 incidents, more than 2,000 fatalities, and over
76,000 injuries to FTA's National Transit Database.
This RIA provides quantitative estimates of the expected compliance
costs associated with the proposed rule. Costs for transit agencies
were estimated based on the staff labor costs associated with
implementing the requirements of the proposed rule, with adjustments
for agency size and for agencies' existing level of maturity with SMS
approaches. Three main cost areas were estimated: (1) Developing and
certifying safety plans; (2) implementing and documenting the SMS
approach; and (3) associated recordkeeping. Staff time was monetized
using data on wage rates and benefits in the transit industry. Over the
20-year analysis period, total costs are estimated at $752 million in
present value (using a 7% discount rate), or the equivalent of $71
million per year.
As previously stated, FTA was unable to estimate the cost of
actions that agencies would take to mitigate or eliminate safety
problems identified through implementation of their safety plans. This
is because FTA is unaware of information sources or methods to predict
with sufficient confidence the number or type of safety problems
agencies will identify through implementation of their safety plans, or
the number, type, and cost of actions that agencies will take to
address such problems. For similar reasons, FTA also is unable to
estimate the benefits of these actions. FTA seeks information from the
public for analyzing the benefits and costs of actions by agencies to
mitigate or eliminate safety problems such as the number, types,
benefits, and costs of such actions.
With respect to State and MPO performance target setting, FTA
forecasted benefits based on the estimated impact of the SMS approach
on reducing transit crashes and their associated societal costs,
including fatal and non-fatal injuries, property damage, and other
costs. Safety benefits were calculated for both bus and rail modes.
However, since the rail agencies are subject to additional safety
rules, analysis also was undertaken excluding the rail modes. Benefits
were monetized using information on transit crash costs, including
direct costs and USDOT-standard statistical values for fatality and
injury prevention. Although many other sectors report reductions in
safety incident after adopting SMS, it is not possible to transfer that
experience to the transit industry due to the differences in
organizational structures and practices.
FTA could not estimate the benefits of this proposed rule. To
estimate safety benefits, one would need to understand the exact causes
of the accidents and the factors that may cause future accidents. This
information is generally unknown in this sector, given the infrequency
and diversity of the type of safety incidents that occur. Instead, FTA
conducted a breakeven analysis that compares the costs that FTA was
able to estimate (absent the cost of mitigations) to a pool of
potential safety benefits. The pool of safety benefits is an estimate
of the cost of bus and rail incidents over a future 20-year period. The
estimate is an extrapolation based on the cost of bus and rail
incidents that occurred from 2010 to 2014.
As the table below shows, the amount of incident reduction needed
to breakeven with the costs of the proposed rule that were estimated is
low. However, benefits of SMS primarily will result from mitigating
actions. As previously stated, the benefits and costs of such actions
are not accounted for in this analysis. FTA has not estimated the
benefits of implementing SMS without mitigating actions, but expects
such benefits are unlikely to be large. Estimated costs for the Public
Transportation Agency Safety Plans include certain activities that
likely will yield safety improvements, such as improved communication,
identification of hazards, and greater employee awareness. It is
plausible that these changes alone could produce accident reductions
that surpass estimated costs.
This analysis assumes that benefits are realized from reducing both
rail and bus incidents after adjusting for the estimated breakeven
threshold for the proposed State Safety Oversight and Safety Training
Rules (RINs 2132-AB19 and 2132-AB25 respectively), to which the rail
agencies also will be subject when finalized.
Under the performance management framework established by MAP-21,
States, MPOs, and transit providers must establish targets in key
national performance areas to document expectations for future
performance. Pursuant to 49 U.S.C. 5303(h)(2)(B)(ii) and
5304(d)(2)(B)(ii), States and MPOs must coordinate the selection of
their performance targets, to the maximum extent practicable, with
performance targets set by transit providers under 49 U.S.C. 5326
(transit asset management) and 49 U.S.C. 5329 (safety), to ensure
consistency.
In the joint FTA and FHWA Planning NPRM, both agencies indicated
that their performance-related rules would implement the basic elements
of a performance management framework, including the establishment of
measures and associated target setting. Because the performance-related
rules implement these elements and the difficulty in estimating costs
of target setting associated with unknown measures, the joint FTA and
FHWA Planning NPRM did not assess these costs. Rather, FTA and FHWA
proposed that the costs associated with target setting at every level
would be captured in each agency's respective ``performance
management'' rules. For example, FHWA's second performance management
rule NPRM, published after the joint FTA and FHWA Planning NPRM,
assumes that the incremental costs to States and MPOs for establishing
performance targets reflect the incremental wage costs for an
operations manager and a statistician to analyze performance-related
data.
The RIA that accompanied the joint FTA and FHWA Planning Final Rule
captured the costs of the effort by States, MPOs, and transit providers
to coordinate in the setting of State and MPO transit performance
targets for state of good repair and safety. FTA believes that the cost
to MPOs and States to set transit performance targets is included
within the costs of coordination. FTA requests comments on this point.
Will there be any additional costs for States and MPOs in target
setting beyond the coordination costs included in the planning rule? If
so, what would those costs be? To the extent that responses to these
questions cause the agency to adjust any of its cost assumptions, those
changes will be reflected in the final rule and any related information
collections.
[[Page 6365]]
A summary of the benefits and costs of this proposed rule is
provided in Table 3 below, which also is included in Table 1 above.
Table 3--Reduction In Cost of Bus and Rail Incidents Needed to Breakeven With Estimated Costs \21\
----------------------------------------------------------------------------------------------------------------
Current Dollar value 7% Discounted value 3% Discounted value
----------------------------------------------------------------------------------------------------------------
Bus Incidents (20-Year $86,999,489,120........... $40,894,178,605........... $58,084,884,054.
Estimate).
Rail Incidents (20-Year $37,680,410,444........... $17,711,706,703........... $25,157,185,334.
Estimate).
Total Pool of Benefits (20- $124,679,899,564.......... $58,605,885,309........... $83,242,069,388.
Year Estimate).
Estimated Costs (20-Year $1,407,680,883............ $752,319,890.............. $1,050,876,643.
Estimate).
Benefits and Costs of Not Estimated............. Not Estimated............. Not Estimated.
Mitigating Actions.
Estimated Cost (Annualized). .......................... $71,013,675............... $70,635,417.
Breakeven Threshold .......................... 1.28%..................... 1.26%.
Including Bus and Rail.
----------------------------------------------------------------------------------------------------------------
Regulatory Flexibility Act
---------------------------------------------------------------------------
\21\ The costs and breakeven threshold in this table do not
account for actions by agencies to mitigate or eliminate safety
risks identified through implementation of their safety plans other
than those mitigation actions prescribed in the rule, such as
training.
---------------------------------------------------------------------------
In compliance with the Regulatory Flexibility Act (Pub. L. 96-354,
5 U.S.C. 601-612), FTA has evaluated the effects of this proposed rule
on small entities and has determined that the proposed rule will not
have a significant economic impact on a substantial number of small
entities.
The proposed rule would affect roughly 2,125 small entities, most
of which are small government entities and small non-profit
organizations that operate public transportation systems in non-
urbanized areas. Compliance costs will vary according to agency size
and complexity, the extent of current SMS practices, and the extent of
current asset management practices. Costs are illustrated by an example
calculation for a small operator of a public transportation system that
receives Formula Grants for Rural Areas under 49 U.S.C. 5311, for which
compliance costs range from an average of $12,000 per Section 5310
agency, to roughly $31,000 per small Section 5307 agency (these
estimates exclude the cost of mitigating actions). For the sake of
comparison, while transit agency operations budgets vary significantly,
the average for small Section 5307 agencies is around $6.3 million per
year, and Section 5311 agencies average $1 million per year. Thus, the
estimated costs of the rule are around 0.5% to 1.5% of agency budgets.
FTA proposes to mitigate the costs for smaller operators of public
transportation systems by requiring the States in which they are
located to draft and certify Public Transportation Agency Safety Plans
on their behalf, unless the operator chooses to develop and certify its
own plan. Additionally, to mitigate the costs for smaller operators of
public transportation systems, FTA is proposing to adopt the SMS
approach to safety, which is scalable and tailored for the specific
needs of a particular transit agency.
Overall, while the proposed rule would affect a substantial number
of small entities, these impacts would not be significant due to the
low magnitude of the costs. Moreover, FTA has designed the proposed
rule to allow flexibility for small entities. FTA is providing
additional analysis of the Regulatory Flexibility Act's application to
this proposed rule in Regulatory Impact Analysis posted to the docket.
Unfunded Mandates Reform Act of 1995
This proposed rule will not impose unfunded mandates as defined by
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22,
1995, 109 Stat. 48; codified at 2 U.S.C. 1501 et seq.).
Pursuant to 2 U.S.C. 1501(8), one of the purposes of the Unfunded
Mandates Reform Act is to consider ``the effect of . . . Federal
statutes and regulations that impose Federal intergovernmental
mandates.'' The term ``Federal intergovernmental mandate'' is defined
at 2 U.S.C. 658(5)(A)(i) to mean ``any provision in legislation,
statute, or regulation that would impose an enforceable duty upon
State, local, or tribal governments, except . . . a condition of
Federal assistance.''
Given the fact that FTA's authorizing statute at 49 U.S.C. 5329(d)
makes the development and implementation of Public Transportation
Agency Safety Plans a condition of FTA Federal financial assistance,
and given that FTA is proposing to require transit agencies to annually
certify that they have safety plans consistent with this rule as a
condition of that Federal financial assistance, this proposed rule will
not impose unfunded mandates.
Executive Order 13132 (Federalism)
This final rule has been analyzed in accordance with the principles
and criteria established by Executive Order 13132, and FTA has
determined that this proposed rule will not have sufficient Federalism
implications to warrant the preparation of a Federalism assessment. FTA
has also determined that this proposed rule will not preempt any State
law or State regulation or affect the States' abilities to discharge
traditional State governmental functions.
Executive Order 12372 (Intergovernmental Review)
The regulations effectuating Executive Order 12372 regarding
intergovernmental consultation on Federal programs and activities apply
to this proposed rule.
Paperwork Reduction Act (PRA)
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C.
et seq.) (PRA), and the White House Office of Management and Budget's
(OMB) implementing regulation at 5 CFR 1320.8(d), FTA is seeking
approval from OMB for the Information Collection Request abstracted
below. FTA acknowledges that this NPRM entails the collection of
information to implement the Public Transportation Agency Safety Plan
requirements of 49 U.S.C. 5329(d). Specifically, an operator of a
public transportation system would do the following: (1) Develop and
certify a Public Transportation Agency Safety Plan; (2) implement and
document the SMS approach; and (3) associated recordkeeping.
FTA seeks public comment to evaluate whether the proposed
collection of information is necessary for the proper performance of
FTA's functions, including whether the information will have practical
utility; whether the estimation of the burden of the proposed
information collection is accurate, including the validity of the
methodologies and assumptions used; ways in which the quality, utility,
and clarity of the information can be enhanced; and whether the burden
can be minimized, including through the use of automated collection
techniques
[[Page 6366]]
or other forms of information technology.
Readers should note that the information collection would be
specific to each operator of a public transportation system in an
effort to facilitate and record the operator's safety responsibilities
and activities. The paperwork burden for each operator of a public
transportation system would be proportionate to the size and complexity
of its operations. For example, an operator of both a rail fixed
guideway system and a bus system may need to generate more
documentation than an operator of a bus system only.
Also, readers should note that FTA already requires rail fixed
guideway public transportation systems to develop System Safety Program
Plans and System Security Plans in accordance with the requirements of
49 CFR part 659. FTA collects information from States and State Safety
Oversight Agencies regarding these plans, and FTA anticipates that
operators of rail fixed guideway systems will utilize some of this
documentation for purposes of developing Public Transportation Agency
Safety Plans. Please see FTA's currently approved collection, 2132-
0558, available at http://www.reginfo.gov/public/do/PRAMain.
Type of Collection: Operators of public transportation systems.
Type of Review: OMB Clearance. New Information Collection Request.
Summary of the Collection: The information collection includes (1)
the development and certification of a Public Transportation Agency
Safety Plan; (2) the implementation and documentation of the SMS
approach; and (3) associated recordkeeping.
Need for and Expected Use of the Information to be Collected:
Collection of information for this program is necessary to ensure that
operators of public transportation systems are performing their safety
responsibilities and activities required by law at 49 U.S.C. 5329(d).
Without the Public Transportation Agency Safety Plan reporting
requirements, FTA would be unable to determine each State's compliance
with 49 U.S.C. 5329(d).
Respondents: Respondents include operators of public transportation
as defined under 49 U.S.C. 5302(14), which do not provide service that
is closed to the general public and only available for a particular
clientele. The total number of respondents is 561. This figure includes
242 respondents that are States, rail fixed guideway systems that
receive Urbanized Area Formula Program funds under 49 U.S.C. 5307, and
large bus systems that receive Urbanized Area Formula Program funds
under 49 U.S.C. 5307. This figure also includes 319 respondents that
would have their Public Transportation Agency Safety Plans drafted and
certified by the State in which they are located, including small
public transportation providers that receive Urbanized Area Formula
Program funds under 49 U.S.C. 5307, operate one hundred or fewer
vehicles in revenue service, and do not operate rail fixed guideway
service; recipients of Formula Grants for Rural areas under 49 U.S.C.
5311; and operators of public transportation systems that receive
Formula Grants for the Enhanced Mobility of Senior and Individuals with
Disabilities under 49 U.S.C. 5310.
Frequency: Annual.
Estimated Total Annual Burden of Costs and Hours on Respondents:
---------------------------------------------------------------------------
\22\ The total annual cost includes labor and non-labor costs
for travel and information technology.
Tier I Respondents (Operating Over 100 Vehicles and Rail Fixed Guideway Service)
[Total annualized burden hours and costs \22\]
----------------------------------------------------------------------------------------------------------------
Annual burden
Agency type Agency safety Number of hours per Total annual Total annual
plan item respondents respondent burden hours cost ($)
----------------------------------------------------------------------------------------------------------------
States........................ Development/ 55 111 6,082 210,010
Certification.
Implementation/ 55 0 0 0
Documentation.
Recordkeeping... 55 0 0 0
5307 Rail..................... Development/ 60 48 2,862 255,660
Certification.
Implementation/ 60 699 41,956 3,893,019
Documentation.
Recordkeeping... 60 238 14,274 2,051,779
5307 Large Bus................ Development/ 127 48 6,123 583,332
Certification.
Implementation/ 127 771 97,943 6,856,950
Documentation.
Recordkeeping... 127 232 29,520 3,290,570
---------------------------------------------------------------
Total Tier I.............. ................ 242 821 198,760 17,141,321
----------------------------------------------------------------------------------------------------------------
Tier II Respondents (Operating 100 or Fewer Vehicles and No Rail Fixed Guideway Service)
[Total Annualized burden hours and costs \23\]
----------------------------------------------------------------------------------------------------------------
Annual burden
Agency type Agency safety Number of hours per Total annual Total annual
plan item respondents respondent burden hours cost ($)
----------------------------------------------------------------------------------------------------------------
5307 Small Bus................ Development/ 94 19 1,773 $170,092
Certification.
Implementation/ 625 355 221,601 11,724,615
Documentation.
Recordkeeping... 625 242 150,938 8,714,824
5311 Bus...................... Development/ 195 14 2,767 265,343
Certification.
Implementation/ 1300 279 362,875 19,199,240
Documentation.
Recordkeeping... 1300 190 247,163 14,270,660
5310 Bus...................... Development/ 30 11 319 30,617
Certification.
Implementation/ 200 227 45,463 2,405,367
Documentation.
Recordkeeping... 200 21 4,129 238,386
[[Page 6367]]
Total Tier II............. ................ 2125 488 1,037,026 57,019,144
----------------------------------------------------------------------------------------------------------------
The total PRA cost of the rule would be approximately $74.2 million per year averaged over the first three years
and $31,110 per respondent per year on average.
National Environmental Policy Act
The National Environmental Policy Act of 1969 (42 U.S.C. 4321 et
seq.), requires Federal agencies to analyze the potential environmental
effects of their proposed actions either through a Categorical
Exclusion, an Environmental Assessment, or an Environmental Impact
Statement. This proposed rule is categorically excluded under FTA's
NEPA implementing regulations at 23 CFR 771.118(c)(4), which covers
planning and administrative activities that do not involve or lead
directly to construction, such as the promulgation of rules,
regulations, directives, and program guidance. FTA has determined that
no unusual circumstances exist and that this Categorical Exclusion is
applicable.
---------------------------------------------------------------------------
\23\ The total annual cost includes labor and non-labor costs
for travel and information technology.
---------------------------------------------------------------------------
Executive Order 12898 (Federal Actions To Address Environmental Justice
in Minority Populations and Low-Income Populations)
Executive Order 12898 directs every Federal agency to make
environmental justice part of its mission by identifying and addressing
the effects of all programs, policies, and activities on minority
populations and low-income populations. The DOT's environmental justice
initiatives accomplish this goal by involving the potentially affected
public in developing transportation projects that fit harmoniously
within their communities without sacrificing safety or mobility. FTA
has developed a program circular addressing environmental justice in
transit projects, Circular 4703.1, Environmental Justice Policy
Guidance for Federal Transit Administration Recipients. The Circular is
designed to provide a framework to assist recipients as they integrate
principles of environmental justice into their transit decision-making
process. The Circular contains recommendations for State DOTs, MPOs,
and transit providers on (1) how to fully engage environmental justice
populations in the transportation decision-making process; (2) how to
determine whether environmental justice populations would be subjected
to disproportionately high and adverse human health or environmental
effects of a public transportation project, policy, or activity; and
(3) how to avoid, minimize, or mitigate these effects. This proposed
rule will not cause adverse environmental impacts, and as a result,
minority populations and low-income populations will not be
disproportionately impacted.
Executive Order 12630 (Taking of Private Property)
This proposed rule will not affect a taking of private property or
otherwise have taking implications under Executive Order 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights.
Executive Order 12988 (Civil Justice Reform)
This proposed rule meets applicable standards in sections 3(a) and
3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize
litigation, eliminate ambiguity, and reduce burden.
Executive Order 13045 (Protection of Children)
FTA has analyzed this proposed rule under Executive Order 13045,
Protection of Children from Environmental Health Risks and Safety
Risks. FTA certifies that this proposed rule will not cause an
environmental risk to health or safety that may disproportionately
affect children.
Executive Order 13175 (Tribal Consultation)
FTA has analyzed this proposed rule under Executive Order 13175
(Nov. 6, 2000), and has determined that it will not have substantial
direct effects on one or more Indian tribes; will not impose
substantial direct compliance costs on Indian tribal governments; and
will not preempt tribal laws. Therefore, a tribal summary impact
statement is not required.
Executive Order 13211 (Energy Effects)
FTA has analyzed this proposed rule under Executive Order 13211,
Actions Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use (May 18, 2001). FTA has determined that this
proposed rule is not a significant energy action under that Executive
Order because it is not likely to have a significant adverse effect on
the supply, distribution, or use of energy. Therefore, a Statement of
Energy Effects is not required.
Privacy Act
Any individual is able to search the electronic form of all
comments received on any FTA docket by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, or other entity). You may
review USDOT's complete Privacy Act Statement in the Federal Register
published on April 11, 2000 (65 FR 19477).
Statutory/Legal Authority for This Rulemaking
This rulemaking is issued under the authority of section 20021 of
MAP-21, which requires public transportation agencies to develop and
implement comprehensive safety plans. This authority was reauthorized
under the FAST Act. The authority is codified at 49 U.S.C. 5329(d).
Regulation Identification Number
A RIN is assigned to each regulatory action listed in the Unified
Agenda of Federal Regulations. The Regulatory Information Service
Center publishes the Unified Agenda in April and October of each year.
The RIN set forth in the heading of this document can be used to cross-
reference this action with the Unified Agenda.
List of Subjects in 49 CFR Part 673
Mass transportation, Safety.
Public Transportation Agency Safety Plan
Issued in Washington, DC, under authority delegated in 49 CFR
1.91.
Therese McMillan,
Acting Administrator.
For the reasons set forth in the preamble, and under the authority
of 49
[[Page 6368]]
U.S.C. 5329(d), 5334, and the delegations of authority at 49 CFR 1.91,
FTA hereby proposes to amend Chapter VI of Title 49, Code of Federal
Regulations by adding part 673 to read as follows:
Title 49--Transportation
PART 673--PUBLIC TRANSPORTATION AGENCY SAFETY PLANS
Subpart A--General
Sec.
673.1 Applicability
673.3 Policy
673.5 Definitions
Subpart B--Safety Plans
673.11 General requirements
673.13 Certification of compliance
673.15 Coordination with metropolitan, statewide, and non-
metropolitan planning processes
Subpart C--Safety Management Systems
673.21 General requirements
673.23 Safety management policy
673.25 Safety Risk Management
673.27 Safety assurance
673.29 Safety promotion
Subpart D--Safety Plan Documentation and Recordkeeping
673.31 Safety plan documentation
673.33 Safety plan records
Authority: 49 U.S.C. 5329(d), 5334; 49 CFR 1.91.
Subpart A--General
Sec. 673.1 Applicability.
This part applies to any State, local governmental authority, and
any other operator of a public transportation system that receives
Federal financial assistance under 49 U.S.C. Chapter 53.
Sec. 673.3 Policy.
The Federal Transit Administration (FTA) has adopted the principles
and methods of Safety Management Systems (SMS) as the basis for
enhancing the safety of public transportation in the United States. All
rules, regulations, policies, guidance, best practices, and technical
assistance administered under FTA's safety authority will, to the
extent practicable and consistent with legal and other applicable
requirements, follow the principles and methods of SMS. This part sets
standards for the Public Transportation Agency Safety Plan, which will
be responsive to FTA's Public Transportation Safety Program, and
reflect the specific safety objectives, standards, and priorities of
each transit agency. Each Public Transportation Agency Safety Plan will
incorporate SMS principles and methods tailored to the size,
complexity, and scope of the public transportation system and the
environment in which it operates.
Sec. 673.5 Definitions.
As used in this part:
Accident means an Event that involves any of the following: A loss
of life; a report of a serious injury to a person; a collision of
public transportation vehicles; a runaway train; an evacuation for life
safety reasons; or any derailment of a rail transit vehicle, at any
location, at any time, whatever the cause.
Accountable Executive means a single, identifiable person who has
ultimate responsibility and accountability for the implementation and
maintenance of the Safety Management System of a public transportation
agency; responsibility for carrying out the agency's Transit Asset
Management Plan; and control or direction over the human and capital
resources needed to develop and maintain both the agency's Public
Transportation Agency Safety Plan, in accordance with 49 U.S.C.
5329(d), and the agency's Transit Asset Management Plan in accordance
with 49 U.S.C. 5326.
Chief Safety Officer means an adequately trained individual who has
responsibility for safety and reports directly to a transit agency's
chief executive officer, general manager, president, or equivalent
officer. A Chief Safety Officer may not serve in other operational or
maintenance capacities, unless the Chief Safety Officer is employed by
a transit agency that is a small public transportation provider as
defined in this part, or a public transportation provider that does not
operate a rail fixed guideway public transportation system.
Equivalent Authority means an entity that carries out duties
similar to that of a Board of Directors, for a recipient or
subrecipient of FTA funds under 49 U.S.C. Chapter 53, including
sufficient authority to review and approve a recipient or
subrecipient's Public Transportation Agency Safety Plan.
Event means any Accident, Incident, or Occurrence.
FTA means the Federal Transit Administration, an operating
administration within the United States Department of Transportation.
Hazard means any real or potential condition that can cause injury,
illness, or death; damage to or loss of the facilities, equipment,
rolling stock, or infrastructure of a public transportation system; or
damage to the environment.
Incident means an event that involves any of the following: a
personal injury that is not a serious injury; one or more injuries
requiring medical transport; or damage to facilities, equipment,
rolling stock, or infrastructure that disrupts the operations of a
transit agency.
Investigation means the process of determining the causal and
contributing factors of an accident, incident, or hazard, for the
purpose of preventing recurrence and mitigating risk.
National Public Transportation Safety Plan means the plan to
improve the safety of all public transportation systems that receive
Federal financial assistance under 49 U.S.C. Chapter 53.
Occurrence means an Event without any personal injury in which any
damage to facilities, equipment, rolling stock, or infrastructure does
not disrupt the operations of a transit agency.
Operator of a public transportation system means a provider of
public transportation as defined under 49 U.S.C. 5302(14), and which
does not provide service that is closed to the general public and only
available for a particular clientele.
Performance criteria means categories of measures indicating the
level of safe performance within a transit agency.
Performance target means a specific level of performance for a
given performance measure over a specified timeframe.
Public Transportation Agency Safety Plan means the documented
comprehensive agency safety plan for a transit agency that is required
by 49 U.S.C. 5329 and this part.
Rail transit agency means any entity that provides services on a
rail fixed guideway public transportation system.
Risk mitigation means a method or methods to eliminate or reduce
the effects of hazards.
Safety Assurance means processes within a transit agency's Safety
Management System that functions to ensure the implementation and
effectiveness of safety risk mitigation, and to ensure that the transit
agency meets or exceeds its safety objectives through the collection,
analysis, and assessment of information.
Safety Management Policy means a transit agency's documented
commitment to safety, which defines the transit agency's safety
objectives and the accountabilities and responsibilities of its
employees in regard to safety.
Safety Management System (SMS) means the formal, top-down,
organization-wide approach to managing safety risk and assuring the
effectiveness of a transit agency's safety risk mitigation. SMS
includes systematic procedures, practices, and policies for managing
risks and hazards.
Safety Management System (SMS) Executive means a Safety Officer or
an equivalent.
[[Page 6369]]
Safety performance target means a Performance Target related to
safety management activities.
Safety Promotion means a combination of training and communication
of safety information to support SMS as applied to the transit agency's
public transportation system.
Safety risk means the assessed probability and severity of the
potential consequence(s) of a hazard, using as reference the worst
foreseeable, but credible, outcome.
Safety risk evaluation means the formal activity whereby a transit
agency determines Safety Risk Management priorities by establishing the
significance or value of its safety risks.
Safety Risk Management means a process within a transit agency's
Safety Management System for identifying hazards and analyzing,
assessing, and mitigating safety risk.
Serious injury means any injury which:
(1) Requires hospitalization for more than 48 hours, commencing
within 7 days from the date of the injury was received;
(2) Results in a fracture of any bone (except simple fractures of
fingers, toes, or noses);
(3) Causes severe hemorrhages, nerve, muscle, or tendon damage;
(4) Involves any internal organ; or
(5) Involves second- or third-degree burns, or any burns affecting
more than 5 percent of the body surface.
Small public transportation provider means a recipient or
subrecipient of Urbanized Area Formula Program funds under 49 U.S.C.
5307 that has one hundred (100) or fewer vehicles in revenue service
and does not operate a rail fixed-guideway public transportation
system.
State means a State of the United States, the District of Columbia,
Puerto Rico, the Northern Mariana Islands, Guam, American Samoa, and
the Virgin Islands.
State of Good Repair means the condition in which a capital asset
is able to operate at a full level of performance.
State Safety Oversight Agency means an agency established by a
State that meets the requirements and performs the functions specified
by 49 U.S.C. 5329(e) and the regulations set forth in 49 CFR part 674.
Transit agency means an operator of a public transportation system
that receives Federal financial assistance under 49 U.S.C. Chapter 53.
Transit Asset Management Plan means a plan developed by a recipient
or Group Plan pursuant to 49 CFR part 625 that includes, at minimum,
capital asset inventories and condition assessments, decision support
tools, and investment prioritization.
Subpart B--Safety Plans
Sec. 673.11 General requirements.
(a) A transit agency must within one calendar year after
publication of the final rule, establish a Public Transportation Agency
Safety Plan that meets the requirements of this part and, at a minimum,
consists of the following elements:
(1) The Public Transportation Agency Safety Plan, and subsequent
updates, must be signed by the Accountable Executive and approved by
the agency's Board of Directors, or an entity equivalent to a Board of
Directors.
(2) The Public Transportation Agency Safety Plan must document the
processes and activities related to Safety Management System (SMS)
implementation, as required under Subpart C of this Part.
(3) The Public Transportation Agency Safety Plan must include
performance targets based on the safety performance criteria
established under the National Public Transportation Safety Plan, and
the state of good repair standards established in the regulations that
implement the National Transit Asset Management System and are included
in the National Public Transportation Safety Plan.
(4) The Public Transportation Agency Safety Plan must address all
applicable requirements and standards as set forth in FTA's Public
Transportation Safety Program and the National Public Transportation
Safety Plan. Compliance with the minimum safety performance standards
authorized under 49 U.S.C. 5329(b)(2)(C) is not required until
standards have been established through the rulemaking process.
(5) Each transit agency must establish a process and timeline for
conducting an annual review and update of the Public Transportation
Agency Safety Plan.
(6) A rail transit agency also must include in its Public
Transportation Agency Safety Plan an emergency preparedness and
response plan or procedures that addresses, at a minimum, the
assignment of employee responsibilities during an emergency; and
coordination with Federal, State, regional, and local officials with
roles and responsibilities for emergency preparedness and response in
the transit agency's service area.
(b) A transit agency may develop one Public Transportation Agency
Safety Plan for all modes of service, or may develop a Public
Transportation Agency Safety Plan for each mode of service not subject
to safety regulation by another Federal entity.
(c) A transit agency must maintain its Public Transportation Agency
Safety Plan in accordance with the recordkeeping requirements in
subpart D of this part.
(d) A State must draft and certify a Public Transportation Agency
Safety Plan on behalf of any transit agency that receives Federal
financial assistance under 49 U.S.C. 5310, 49 U.S.C. 5311, and any
small public transportation provider located in that State. A State is
not required to draft a Public Transportation Agency Safety Plan for a
particular transit agency that receives Federal financial assistance
under 49 U.S.C. 5310, 49 U.S.C. 5311, or a small public transportation
provider, if that agency notifies the State that it will draft its own
plan. In each instance, the transit agency must carry out the plan. If
a State drafts and certifies a Public Transportation Agency Safety Plan
on behalf of a transit agency, and the transit agency later opts to
draft and certify its own Public Transportation Agency Safety Plan,
then the transit agency must notify the State. The transit agency has
one year from the date of the notification to draft and certify a
Public Transportation Agency Safety Plan that is compliant with this
part.
(e) Any rail fixed guideway public transportation system that had a
System Safety Program Plan compliant with 49 CFR part 659 as of October
1, 2012, may keep that plan in effect until [one year after the
effective date of the final rule].
(f) Agencies that operate passenger ferries regulated by the United
States Coast Guard (USCG) or commuter rail service regulated by the
Federal Railroad Administration (FRA) are not required to develop
agency safety plans for those modes of service.
Sec. 673.13 Certification of compliance.
(a) Each transit agency, or State as authorized in Sec. 673.11(d),
must certify that it has established a Public Transportation Agency
Safety Plan meeting the requirements of this part by [one year after
the effective date of the final rule]. A State Safety Oversight Agency
must review and approve a Public Transportation Agency Safety Plan
developed by rail fixed guideway system, as authorized in 49 U.S.C.
5329(e) and its implementing regulations at 49 CFR part 674.
(b) On an annual basis, a transit agency or State must certify its
compliance with this part.
[[Page 6370]]
Sec. 673.15 Coordination with metropolitan, statewide, and non-
metropolitan planning processes.
(a) A State or transit agency must make its safety performance
targets available to States and Metropolitan Planning Organizations to
aid in the planning process.
(b) To the maximum extent practicable, a State or transit agency
must coordinate with States and Metropolitan Planning Organizations in
the selection of State and MPO safety performance targets.
Subpart C--Safety Management Systems
Sec. 673.21 General requirements.
Each transit agency must establish and implement a Safety
Management System under this part. A transit agency Safety Management
System must be appropriately scaled to the size, scope and complexity
of transit agency and include the following elements:
(a) Safety Management Policy as described in Sec. 673.23 of this
subpart;
(b) Safety Risk Management as described in Sec. 673.25 of this
subpart;
(c) Safety Assurance as described in Sec. 673.27 of this subpart;
and
(d) Safety Promotion as described in Sec. 673.29 of this subpart.
Sec. 673.23 Safety management policy.
(a) A transit agency must establish its organizational
accountabilities and responsibilities and have a written statement of
safety management policy that includes the agency's safety objectives
and safety performance targets.
(b) A transit agency must establish a process that allows employees
to report safety conditions to senior management, protections for
employees who report safety conditions to senior management, and a
description of employee behaviors that may result in disciplinary
action.
(c) The safety management policy must be communicated throughout
the agency's organization.
(d) The transit agency must establish the necessary authorities,
accountabilities, and responsibilities for the management of safety
amongst the following individuals within its organization, as they
relate to the development and management of the transit agency's Safety
Management System (SMS):
(1) Accountable Executive. The transit agency must identify an
Accountable Executive. The Accountable Executive is accountable for
ensuring that the agency's SMS is effectively implemented, throughout
the agency's public transportation system. The Accountable Executive is
accountable for ensuring action is taken, as necessary, to address
substandard performance in the agency's SMS. The Accountable Executive
may delegate specific responsibilities, but the ultimate accountability
for the transit agency's safety performance cannot be delegated and
always rests with the Accountable Executive.
(2) Chief Safety Officer or Safety Management System (SMS)
Executive. The Accountable Executive may designate a Chief Safety
Officer or SMS Executive who may be given authority and responsibility
for day-to-day implementation and operation of an agency's SMS. The
Chief Safety Officer or SMS Executive must hold a direct line of
reporting to the Accountable Executive. A transit agency may allow the
Accountable Executive to also serve as the Chief Safety Officer or SMS
Executive.
(3) Agency leadership and executive management. A transit agency
must identify those members of its leadership or executive management,
other than an Accountable Executive, Safety Officer, or SMS Executive,
who have authorities or responsibilities for day-to-day implementation
and operation of an agency's SMS.
(4) Key staff. A transit agency may designate key staff, groups of
staff, or committees to support the Accountable Executive, Chief Safety
Officer, or SMS Executive in developing, implementing, and operating
the agency's SMS.
Sec. 673.25 Safety Risk Management.
(a) Safety Risk Management process. A transit agency must develop
and implement a Safety Risk Management process for all elements of its
public transportation system. The Safety Risk Management process must
be comprised of the following activities: Identification of safety
hazards, analysis of safety hazards, safety risk evaluation, and safety
risk mitigation.
(b) Safety hazard identification and analysis. (1) A transit agency
must establish a process for hazard identification and analysis.
(2) A transit agency must include, as a source for hazard
identification and analysis, data, and information provided by an
oversight authority and the FTA.
(c) Safety risk evaluation and mitigation. (1) A transit agency
must establish activities to evaluate and prioritize the safety risk
associated with the potential consequences of safety hazards. Safety
risks must be evaluated in terms of probability and severity and take
into account mitigations already in place to reduce the probability or
severity of the potential consequence(s) analyzed.
(2) A transit agency must establish criteria for the development of
safety risk mitigations that are necessary based on the results of the
agency's safety risk evaluation.
Sec. 673.27 Safety assurance.
(a) Safety assurance process. A transit agency must develop and
implement a safety assurance process, consistent with this subpart.
(b) Safety performance monitoring and measurement. A transit agency
must establish activities to:
(1) Monitor its system for compliance with, and sufficiency of, the
agency's procedures for operations and maintenance;
(2) Monitor its operations to identify hazards not identified
through the Safety Risk Management process established in Sec. 673.25
of this subpart;
(3) Monitor its operations to identify any safety risk mitigations
that may be ineffective, inappropriate, or were not implemented as
intended;
(4) Investigate safety events to identify causal factors; and
(5) Monitor information reported through any internal safety
reporting programs.
(c) Management of change. (1) A transit agency must establish a
process for identifying and assessing changes that may introduce new
hazards or impact the transit agency's safety performance.
(2) If a transit agency determines that a change may impact its
safety performance, then the transit agency must evaluate the proposed
change through its Safety Risk Management process.
(d) Continuous improvement. (1) A transit agency must establish a
process to assess its safety performance.
(2) If a transit agency identifies any deficiencies as part of its
safety performance assessment, then the transit agency must develop and
carry out, under the direction of the Accountable Executive, a plan to
address the identified safety deficiencies.
Sec. 673.29 Safety promotion.
(a) Competencies and training. A transit agency must establish a
comprehensive safety training program for all agency employees and
contractors directly responsible for the management of safety in the
agency's public transportation system. The training program must
include refresher training, as necessary.
(b) Safety communication. A transit agency must communicate safety
and safety performance information throughout the agency's organization
[[Page 6371]]
that, at a minimum, conveys information on hazards and safety risks
relevant to employees' roles and responsibilities and informs employees
of safety actions taken in response to reports submitted through an
employee safety reporting program.
Subpart D--Safety Plan Documentation and Recordkeeping
Sec. 673.31 Safety plan documentation.
At all times, a transit agency must maintain documents that set
forth its Public Transportation Agency Safety Plan, including those
related to the implementation of its Safety Management System (SMS),
and results from SMS processes and activities. A transit agency must
maintain documents that are included in whole, or by reference, that
describe the programs, policies, and procedures that the agency uses to
carry out its Public Transportation Agency Safety Plan. These documents
must be made available upon request by the Federal Transit
Administration or other Federal entity, or a State Safety Oversight
Agency having jurisdiction. A transit agency must maintain these
documents for a minimum of three years.
Sec. 673.33 Safety plan records.
In addition to any documents or records required elsewhere in this
part, a transit agency must maintain records of the following items:
(a) Safety risk mitigations developed in accordance with Sec.
673.25;
(b) Results from the transit agency's safety performance
assessments as required under Sec. 673.27; and
(c) Employee safety training taken for purposes of compliance with
this part and the Public Transportation Agency Safety Training
Certification Program.
[FR Doc. 2016-02017 Filed 2-4-16; 8:45 am]
BILLING CODE 4910-57-P