[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





-----------------------------------------------------------------------





Federal Transit Administration





-----------------------------------------------------------------------





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]]


-----------------------------------------------------------------------

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.

-----------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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

[[Page 6346]]

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\
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                              Current dollar value                   7% Discounted value                    3% Discounted value
--------------------------------------------------------------------------------------------------------------------------------------------------------
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.
--------------------------------------------------------------------------------------------------------------------------------------------------------

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.
---------------------------------------------------------------------------

    \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).
---------------------------------------------------------------------------

    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

[[Page 6347]]

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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \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.

---------------------------------------------------------------------------

[[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)).
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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.
---------------------------------------------------------------------------

    \16\ FTA may adopt additional performance criteria through 
future public comment processes.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \17\ See FTA's State Safety Oversight Rule at 49 CFR 659.19(r) 
(2015).
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \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.
---------------------------------------------------------------------------

    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\
---------------------------------------------------------------------------

    \20\ See FTA's State Safety Oversight Rule at 49 CFR 659.19(u).
---------------------------------------------------------------------------

    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