[Federal Register Volume 81, Number 155 (Thursday, August 11, 2016)]
[Rules and Regulations]
[Pages 53046-53061]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-18920]



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DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

49 CFR Part 670

[Docket No. FTA-2015-0009]
RIN 2132-AB22


Public Transportation Safety Program

AGENCY: Federal Transit Administration (FTA), Department of 
Transportation (DOT).

ACTION: Final rule.

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SUMMARY: The Federal Transit Administration is issuing a final rule to 
establish substantive and procedural rules for FTA's administration of 
a comprehensive safety program to improve the safety of the Nation's 
public transportation systems. This final rule provides the framework 
for FTA to monitor, oversee and enforce transit safety, based on the 
methods and principles of Safety Management Systems.

DATES: The effective date of this rule is September 12, 2016.

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 Candace Key, Office 
of Chief Counsel, (202) 366-1936 or [email protected].

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
II. Rulemaking Background
III. Summary of NPRM Comments and FTA's Responses
    A. General Comments
    B. Section-by-Section Comments
IV. Regulatory Analyses and Notices

I. Executive Summary

A. Purpose of Regulatory Action

    This final rule establishes substantive and procedural rules to 
support the Federal Transit Administrator in carrying out the Public 
Transportation Safety Program (Safety Program), first authorized in the 
Moving Ahead for Progress in the 21st Century Act (MAP-21) (Pub. L. 
112-141 (2012)), and codified at 49 U.S.C. 5329. On December 4, 2015, 
the President signed into law the Fixing America's Surface 
Transportation (FAST) Act (Pub. L. 114-94 (2015)). The FAST Act made 
two amendments to the Safety Program that affect today's rulemaking and 
are discussed further, below.

B. Statutory Authority

    Under 49 U.S.C. 5329 (Section 5329), FTA, through the authority 
delegated by the Secretary of the Department of Transportation, must 
create a comprehensive Public Transportation Safety Program. Most 
notably, Section 5329 provides FTA with the following explicit 
authorities to administer the Safety Program and to take enforcement 
actions:
     49 U.S.C. 5329(f), provides FTA with the authority to 
inspect and audit a public transportation system; make reports and 
issue directives with respect to the safety of a public transportation 
system or the public transportation industry generally; issue subpoenas 
and take depositions; require the production of documents; prescribe 
recordkeeping and reporting requirements; investigate public 
transportation accidents and incidents; enter into and inspect the 
equipment, rolling stock, operations and relevant records of a public 
transportation system; and issue regulations.
     49 U.S.C. 5329(g) authorizes FTA to take enforcement 
actions against a recipient of Federal financial assistance under 49 
U.S.C. chapter 53 that is noncompliant with Federal transit safety law, 
through issuing directives, requiring more frequent oversight, imposing 
more frequent reporting requirements, requiring that chapter 53 funds 
be spent to correct safety deficiencies before those funds are spent on 
other projects, and withholding funds from a recipient.
     49 U.S.C. 5329(h) authorizes FTA to impose restrictions 
and prohibitions on a recipient's operations, where FTA determines that 
an unsafe practice or condition creates a substantial risk of death or 
personal injury.

C. Summary of Major Provisions

    In the Notice of Proposed Rulemaking (NPRM), 80 FR 48794, (August 
14, 2015), FTA proposed (1) to add a new part 670, ``Public 
Transportation Safety Program,'' to title 49 of the Code of Federal 
Regulations (CFR); (2) to formally adopt a Safety Management Systems 
(SMS) approach as the foundation of the Safety Program; (3) to 
establish substantive and procedural rules for FTA's administration of 
the Safety Program; and (4) to describe the contents of a National 
Public Transportation Safety Plan (National Safety Plan or Plan).
    This final rule will add a new part 670, ``Public Transportation 
Safety Program,'' to title 49 of the CFR. In response to public 
comments, FTA has made a number of nonsubstantive, clarifying edits. In 
addition, FTA has made the following substantive changes:
    1. Amended section 670.23(b) to state that FTA may withhold not 
more than 25 percent of a recipient's Urbanized Area Formula funds.
    2. Amended section 670.27 to provide that the Deputy Administrator 
may issue special directives, with petitions for reconsideration going 
to the Administrator.
    3. Amended section 670.29 to remove language stating that FTA would 
consider whether a recipient has complied with an advisory when taking 
enforcement actions.

D. Costs and Benefits

    This final rule establishes substantive and procedural rules for 
FTA's authority to inspect, investigate, audit, examine and test 
transit agencies' facilities, equipment, and records; direct or 
withhold Federal transit funds; and issue directives and advisories. 
The final rule does not impose additional costs on entities other than 
FTA. The costs to recipients associated with FTA's enforcement 
authorities are captured in the rulemakings for Public Transportation 
Agency Safety Plans, State Safety Oversight, and the Public 
Transportation Safety Certification Training Program. FTA received a 
number of comments on the cost assumptions in the NPRM, which are 
summarized in section III, below.

II. Rulemaking Background

    On October 3, 2013, FTA introduced the transit industry to 
fundamental changes to the Federal transit safety program authorized by 
MAP-21 with a consolidated advance notice of proposed rulemaking 
(ANPRM). 78 FR 61251. FTA issued the ANPRM to provide the public with a 
better understanding of FTA's proposed approach to implementing the 
requirements for transit asset management and safety, and to obtain 
stakeholder input. Throughout the ANPRM, FTA expressed its intention to 
adopt a comprehensive approach to transit asset management and safety 
that would be scalable and flexible. In addition, the ANPRM highlighted 
the inherent linkages between asset condition (state of good repair) 
and safety performance through the explanation of FTA's anticipated 
proposal to adopt the principles and methods of SMS as the foundation 
for the development, implementation, oversight and enforcement of the 
Safety Program.

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    In the August 2015 NPRM, FTA proposed a series of specific 
substantive and procedural rules for FTA's administration of the Safety 
Program. FTA took the public comments on both the ANPRM and NPRM into 
consideration in developing today's final rule.

III. Summary of NPRM Comments and FTA's Responses

    FTA received comments from 118 entities, including transit 
agencies, trade associations, state and local governments, and private 
citizens. Some comments were outside the scope of this rulemaking, and 
some pertained to other safety rulemakings. For example, many 
commenters expressed support for MAP-21's safety objectives, but 
indicated that FTA appeared to be using language to implement SMS 
principles that would be more appropriate for the rail transit industry 
or that do not translate easily to the bus industry. To the extent 
these comments concerned the applicability of FTA's authority to 
specific types of transit agencies, please see the below discussion on 
``Purpose and Applicability.'' To the extent these comments concerned 
the scalability of SMS, we believe they are more appropriately handled 
in the final rule concerning the Public Transportation Agency Safety 
Plans, which FTA plans to issue in the coming months. In general, this 
document does not respond to those comments that were not related to 
the substance of today's rulemaking; however, to assist with 
understanding the intent of today's rule, FTA does address some 
comments that are related to other safety rulemakings. Following are 
summaries of the comments received and FTA's responses.

A. General Comments

Comments: Costs and Benefits
    A number of commenters stated that the rule would have moderate to 
significant direct cost implications and economic impacts, due to its 
detailed implementation requirements, including nationwide SMS 
implementation. Some commenters were concerned that the proposed rule 
would impose costs and administrative burdens on States and transit 
agencies. Some commenters suggested that the NPRM would be an 
``unfunded mandate'' because FTA did not identify any specially 
designated funding that could be used by recipients towards complying 
with the rule. Some commenters stated that FTA had not properly 
accounted for the costs to recipients, including State Safety Oversight 
Agencies (SSOAs), to implement the other rulemakings required under 49 
U.S.C. 5329. Some commenters indicated that it is difficult to evaluate 
and quantify the costs of implementing each component of the Safety 
Program rule until FTA issues all of the final rules on safety.
    Several commenters requested that FTA cite the research study that 
provided the data and analysis supporting its assumption that the rule 
would not have a financial impact on the economy, States, and transit 
agencies. Some commenters noted that recipients would incur additional 
costs such as requiring more staff to implement SMS and comply with 
FTA's safety rulemakings. Other commenters suggested that recipients 
would incur costs when responding to FTA enforcement actions.
FTA Response: Costs and Benefits
    FTA has considered the comments and continues to find that this 
rule does not impose specific costs to recipients. Rather, this final 
rule establishes substantive and procedural rules to support FTA's own 
administration of the Safety Program. The final rule does not require 
recipients to take any specific action. Specific requirements for 
recipients, such as implementing SMS, have been outlined by FTA in the 
proposed and final rulemakings (as applicable) for Public 
Transportation Agency Safety Plans, the State Safety Oversight Program, 
and the Public Transportation Safety Certification Training Program. 
The cost projections, underlying assumptions, and research for each 
requirement are included in the cost benefit analysis section for each 
of those rulemakings.
Comments: Funding
    A few commenters stated that adequate funding should be set aside, 
authorized, and appropriated by Congress prior to implementation of 
this rulemaking. Further, a few commenters indicated that funding to 
implement the Safety Program (including reporting requirements) should 
not come from existing operating and capital improvement grant funds, 
but rather from new and additional grant funds set aside by FTA. One 
commenter suggested that FTA create a special category of funding that 
local agencies could use to pay for the costs to mitigate risks 
associated with safety inspection findings. One commenter suggested 
that FTA designate special funding for hazard mitigation.
    Some commenters noted that FTA should be aware of existing and 
increasing funding shortfalls already faced by many recipients, 
including forced service cuts, fare increases and layoffs. Commenters 
noted that the expected cost implications would create significant 
issues with their prioritization of funding.
    Several commenters recommended that FTA work to secure the 
necessary funding at the Federal, State, and local level and that each 
State be allowed to distribute the funds. One commenter stated that FTA 
should examine the process by which other U.S. Department of 
Transportation agencies secure funding for their safety programs.
FTA Response: Funding
    The Safety Program is a requirement of 49 U.S.C. 5329. Congress 
determines the level of funding for the Federal transit program. FTA 
recognizes the need for increased investments in transit at all levels 
of government, and recommends funding levels for the Federal transit 
programs through the annual congressional appropriations process.
Comments: Tribal Consultation
    FTA received one comment related to Tribal consultation. The 
commenter indicated that the worthy goal of this rulemaking can only 
properly be realized in Indian Country following meaningful 
consultation with Tribal governments and technical discussions and 
collaboration with the Tribal Transportation Program Coordinating 
Committee. The commenter noted that most Tribal transit systems operate 
on a very small scale, and with severe financial and administrative 
limitations. The commenter stated that for these practical reasons, FTA 
has an obligation as a prudent policy maker to engage in a meaningful 
consultation with Tribal nations prior to developing regulations that 
will apply to Tribally-operated transit systems. The commenter stated 
that the represented Tribes do not agree with FTA's view that Tribal 
consultation requirements do not apply to this rule. The commenter 
recommended that FTA either clarify the scope of the rule so that it 
does not apply to Tribes or engage in formal Tribal consultation before 
issuing a final rule.
FTA Response: Tribal Consultation
    FTA appreciates the comments from Tribal representatives. However, 
FTA disagrees that this rule will have ``substantial direct effects on 
one or more Indian Tribes, on the relationship between the Federal 
Government and Indian Tribes, or on the distribution of power and 
responsibilities between the Federal Government and Indian Tribes.'' 
Executive Order 13175, November 6, 2000. This rule establishes 
substantive

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and procedural rules for FTA's administration of the Safety Program. As 
noted above, this regulation outlines FTA's authorities to conduct 
reviews, audits, investigations, examinations, inspections and testing, 
and to issue findings and directives which would require corrective 
actions by recipients. The rule does not impose specific requirements 
on Tribes or any other recipients. Therefore, FTA finds that the final 
rule does not impose substantial direct effects on one or more Indian 
Tribes and does not impose substantial direct compliance costs on 
Tribal governments.
    Although not required to under Executive Order 13175, FTA has 
engaged in active consultation with Tribes in the development of this 
final rule. In advance of publishing an NPRM, FTA sought comment from 
the transit industry on a wide range of topics pertaining to the new 
Public Transportation Safety Program provisions authorized by MAP-21 
through an ANPRM. FTA asked specific questions about how FTA should 
apply the new safety requirements to recipients of the section 5311 
Tribal Transit Formula Program and Tribal Transit Discretionary 
Program. Additionally, FTA continued to engage with the industry 
following the publication of the NPRM through subsequent outreach 
efforts, including a webinar for small, rural and Tribal transit 
providers, which was held on October 27, 2015. FTA also held a 
listening session at the National Rural Transit Assistance Program 
Annual Meeting, which historically has been well attended by Tribal 
representatives.
Comments: Other
    One commenter suggested that the proposed rule would create 
federalism issues and asked FTA to explain why it did not believe that 
the rule would create federalism issues.
FTA Response: Other
    Pursuant to Executive Order 13132, to the extent practicable and 
permitted by law, a Federal agency cannot promulgate two types of rules 
unless it meets certain conditions. The two types of rules are:
    1. Rules with Federalism Implications, substantial direct 
compliance costs on state and local governments, and not required by 
statute, and
    2. Rules with Federalism Implications and that preempt state or 
local law.
    Federalism Implications are defined as having substantial direct 
effects on States or local governments (individually or collectively), 
on the relationship between the National government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. FTA does not believe that this rule has 
substantial direct effects on States or local governments or the 
distribution of power and responsibilities among the various levels of 
government. Further, this rule does not preempt State or local law. 
This rule merely restates FTA's statutory authority to administer the 
Safety Program and provides processes to support FTA's administration 
of the Safety Program.

B. Section by Section Comments

Subpart A General Provisions

670.1 Purpose and Applicability
    This section proposed that the purpose of the regulations would be 
to establish a Public Transportation Safety Program, and that the part 
would apply to all recipients of Federal transit funds.
Comments: Purpose and Applicability
    Several commenters requested clarification regarding the 
applicability of the proposed rule. One commenter asked for 
clarification regarding the statutory authority that was referenced in 
the proposed purpose and applicability section.
    One commenter stated that the proposed rule could be read to apply 
to Tribes that are direct recipients and to Tribes that are 
subrecipients of a State. Some commenters suggested that the rule 
should not apply to commuter rail operators that are subject to Federal 
Railroad Administration (FRA) regulations and recommended that FTA 
amend subpart D to clearly exclude commuter railroads. A few commenters 
queried whether the proposed rule would apply to bus operations. Two 
commenters asked if SSOAs would be considered recipients within the 
scope of this rule. One commenter suggested that FTA clarify whether 
the proposed rule would apply to third party contractors.
    Some commenters indicated that the rule should allow flexibility 
for a State recipient to determine whether the rules should apply to 
subrecipients. One commenter asserted that Section 5329 allows FTA to 
adopt a different approach for the Enhanced Mobility of Seniors and 
Individuals with Disabilities Formula Program authorized at 49 U.S.C. 
5310 (Section 5310) because Section 5329 specifically references the 
Rural Area Formula Program, 49 U.S.C. 5311, and the Urbanized Area 
Formula Program, 49 U.S.C. 5307, but makes no reference to Section 5310 
grantees. The commenter recommended that FTA add language under section 
670.1 to state that the part would not apply to public transportation 
systems that only receive Section 5310 funds. The commenter also 
recommended that FTA allow direct recipients under the Section 5310 
program to lay out their approach to safety for their subrecipients in 
the State or Program Management Plan required under the Section 5310 
program circular (C 9070 1G).
FTA Response: Purpose and Applicability
    With the enactment of MAP-21, Congress directed FTA to develop a 
Public Transportation Safety Program for all recipients of Federal 
financial assistance under 49 U.S.C. chapter 53. Section 5329(a) of 
Title 49 of the United States Code specifically defines recipient as a 
``State or local governmental authority, or any other operator of a 
public transportation system.'' Accordingly, this final rule applies to 
recipients of Federal financial assistance under 49 U.S.C. chapter 53, 
regardless of mode, including recipients of funding under 49 U.S.C. 
5310 that provide public transportation, States, SSOAs, and Tribes. The 
rule applies to contractors who function in the capacity of the defined 
recipients; however, a recipient ultimately is responsible for ensuring 
its contractors are in compliance with the Safety Program.
    FTA recognizes that some recipients, such as commuter rail 
operators, are subject to the safety regulatory requirements of other 
Federal agencies. Accordingly, a chapter 53 recipient that operates 
commuter rail, light rail, and a bus system will continue to have its 
commuter rail operations governed by the FRA, but its light rail and 
bus operations will be governed by 49 U.S.C. 5329 and FTA's safety 
regulations.
    FTA has amended this section in the final rule to align with the 
definition of ``recipient'' at 49 U.S.C. 5329(a) and to clarify that 
the rule establishes substantive and procedural rules for FTA's 
administration of the Safety Program.
670.3 Policy
    This section proposed the formal adoption of Safety Management 
Systems (SMS) as the basis for enhancing the safety of public 
transportation in the United States.
Comments: Policy: Safety Management Systems
    A number of commenters indicated support for FTA's adoption of SMS 
principles and methods as the basis for

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the Safety Program. Other commenters were critical of SMS being FTA's 
sole approach to implementing the Safety Program. Some commenters 
stated that FTA's approach is focused on urban rail transit systems. 
These commenters noted that FTA should provide alternative methods for 
implementing the Safety Program that are consistent with SMS concepts, 
but are more applicable to smaller bus systems.
    Several commenters suggested that FTA adopt an approach that is 
simple to understand and easy to implement. One commenter expressed 
confidence that an SMS approach would result in improved and uniform 
safety standards across the country, but suggested that without further 
clarification from FTA, the proposed rule could unduly burden smaller 
public transportation systems by subjecting them to currently unknown 
facets of SMS that are only necessary or, in practice, applicable to 
the largest public transportation systems.
FTA RESPONSE: Policy: Safety Management System
    FTA understands those commenters that expressed concern over FTA's 
proposed adoption of SMS as the basis for the Safety Program. To 
clarify, the NPRM did not propose, nor does this final rule require a 
recipient to adopt SMS. On February 5, 2016, FTA issued a proposed rule 
for Public Transportation Agency Safety Plans that would require each 
recipient to develop an agency safety plan based on SMS (See 81 FR 
6344-71). The preamble to that rule describes SMS as a scalable and 
flexible approach that can apply across the transit industry. The 
comment period for the Public Transportation Agency Safety Plan closed 
on April 5, 2016. FTA is reviewing the public comments and anticipates 
publishing a final rule this calendar year.
    FTA disagrees with those commenters who suggest that SMS is not a 
practical approach for the Nation's diverse transit industry. FTA is 
taking a risk-based, proactive approach to implementation of the Public 
Transportation Safety Program. Specifically, the SMS pillars of safety 
risk management and safety assurance are designed to assist in 
identifying in advance where potential safety risks reside, and 
developing and implementing mitigations (rules, directives, guidance, 
best practices) that would prevent the likelihood and minimize the 
severity of the risk. FTA is committed to developing, implementing, and 
consistently improving strategies and processes to ensure that transit 
achieves the highest practicable level of safety. SMS is FTA's approach 
to achieving this goal by building a 21st-century safety regime that is 
flexible, scalable, and responsive to emerging safety issues.
    FTA has revised this section in the final rule to clarify that the 
policy statement specifically applies to actions undertaken by FTA.
670.5 Definitions
    This section included proposed definitions for terms used in the 
NPRM.
Comments: Definitions
    Commenters generally were concerned that any words or language 
intended to describe an event or circumstance that would trigger an 
enforcement action under the proposed rule must be defined clearly and 
concisely so that all affected recipients are treated equally. Some 
commenters felt that if the terms were left to the discretion and 
interpretation of the investigator or FTA representative handling the 
issue, there would be the potential for an uneven application of the 
regulation across recipients and subrecipients. In light of this 
concern, a number of commenters suggested that FTA clarify some of the 
proposed definitions, including, specifically, Accountable Executive; 
pattern or practice; audit; examination; inspection; investigation; 
corrective action plan; advisory; National Public Transportation Safety 
Plan; recipient; and testing.
    In general, FTA appreciates the concerns regarding some of the 
proposed definitions, and the requests for additional definitions. As 
appropriate, FTA has incorporated into this rulemaking definitions that 
appear in other Section 5329 rulemakings, including the definition of 
hazard. FTA made changes to the following definitions to clarify their 
meaning: Advisory; audit; corrective action plan; directive; 
examination; inspection; pattern or practice; and State Safety 
Oversight Agency.
``Accountable Executive''
    Several commenters asked whether an ``Accountable Executive'' would 
be an agency CEO or general manager. Some commenters also asked for 
clarification on the qualifications required to fulfill this role, 
stating that incumbents with this responsibility should possess 
comparable levels of competence, experience and authority to ensure 
consistency across the industry. One commenter requested that FTA 
revised the definition to state that a State Department of 
Transportation (State DOT), by virtue of providing funds, advice, or 
administrative planning or support to a subrecipient agency, is not an 
Accountable Executive with respect to that agency. Finally, one 
commenter asked FTA to define ``Transit Asset Management Plan,'' which 
appears without elaboration in the definition of Accountable Executive.
    FTA RESPONSE: FTA has aligned the definition of ``Accountable 
Executive'' with the definition established in the final State Safety 
Oversight rule, now codified at 49 CFR part 674. FTA believes the 
definition is both broad and specific enough to allow the intended 
local safety oversight responsibility to function effectively while 
also allowing for flexibility to scale to the needs of various 
recipients and their systems. Notably, a State DOT would not be an 
Accountable Executive; however, there may be situations in which an 
employee of a State DOT is an Accountable Executive, as when the State 
DOT provides public transportation service. FTA declines to establish 
minimum qualifications for Accountable Executives, as the level of 
experience and authority required may vary from agency to agency. The 
term ``Transit Asset Management Plan'' which appears within the 
definition of ``Accountable Executive'' is not defined in this rule 
because it is defined in FTA's recently issued Transit Asset Management 
rule. (See 81 FR 48890, July 26, 2016.) FTA believes the definition for 
``National Public Transportation Safety Plan'' is sufficient given the 
additional description of the Plan in section 670.31.
``Pattern or practice'' and ``Finding''
    A number of commenters were concerned that the definition of 
``pattern or practice'' is unclear, and does not explicitly define what 
constitutes a ``finding.'' In particular, commenters were concerned 
with the lack of specificity on what minimal and maximal time span 
between findings would constitute a pattern; whether findings would be 
limited to only violations found during one investigation or over 
multiple investigations; and whether findings must be related or be of 
some specific but undefined level of severity. Commenters suggested 
that ``finding'' should be included as a defined term, to clarify how 
the results of inspections, investigations, audits, examinations and 
testing relate to ``findings'' and whether the conclusions from 
inspections, investigations, audits, examinations and testing 
constitute ``findings'' or if a ``finding'' is something pursuant to a 
more specific process or particular procedure. Some commenters 
suggested that pattern or practice should be more

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explicitly defined as two or more events within a 12-month period. 
Finally, a few commenters stated that a pattern or practice should only 
apply to multiple findings with the same operator and not across 
multiple operators in an overall public transit system.
    FTA RESPONSE: FTA has chosen not to make substantive changes to the 
proposed definition of ``pattern or practice.'' A narrow definition of 
this term would limit FTA's ability to administer its safety oversight 
responsibilities. Moreover, a pattern or practice triggering an 
enforcement action will differ from one recipient to the next, and will 
depend, in part, on a recipient's mode of operation, the size and 
complexity of the recipient's operations, and the recipient's unique 
operating environment. This same rationale applies to many other 
definitions FTA is leaving unchanged. Finally, terms such as 
``finding'' that are not defined by statute or regulation will be 
interpreted in accordance with the definition set forth in dictionaries 
of common usage.
``Examination,'' ``Inspection,'' ``Audit'' and ``Investigation''
    Several commenters stated the differences between the definitions 
of ``examination,'' ``inspection,'' ``audit'' and ``investigation'' 
were minor and not well-defined, particularly the differences between 
examination and inspection. Some questioned why an inspection might 
lead to a finding of a pattern or practice of safety violations, but 
examinations and audits would not. One commenter suggested deleting 
``examination'' since it was very similar to ``inspection.''
    FTA RESPONSE: In response to concerns over the lack of obvious 
distinctions between the definitions of examinations, inspections, 
audits and investigations, FTA has revised the definition of 
``inspection'' in the final rule to elaborate on the activities and 
distinguishing characteristics of an inspection versus an 
``examination.'' Specifically, the final rule clarifies that an 
inspection is a physical act of observation whereas an examination is a 
process. Each of these functions--investigations, inspections, audits, 
and examinations--are authorized by 49 U.S.C. 5329(g), and each is a 
separate but integral part of the overall mechanism and process for 
collecting relevant information for purposes of safety oversight. FTA 
has chosen not to define the phrase ``reasonable time and manner'' as 
it applies to this information collection process, as a narrow 
definition of this term would impede FTA's ability to effectively carry 
out its congressionally mandated safety oversight role.
``Unsafe Condition or Practice'' and ``Safety Violation''
    With respect to the definition of ``pattern or practice'' and in 
general response to the proposed rule's sections on enforcement 
actions, several commenters asked FTA to define ``unsafe condition or 
practice'' and ``safety violation.'' Some also suggested adding the 
term ``serious'' or ``serious safety violation'' as a definition to 
clarify what constituted ``serious'' safety violations, and what the 
relative and actionable difference was between a ``serious'' safety 
violation and a safety violation that was not ``serious.''
    FTA RESPONSE: FTA does not believe that it is appropriate to define 
``serious safety violation'' through regulation. As previously 
mentioned, FTA's approach to the administration of the safety program 
is both scalable and flexible. A narrow definition of ``serious safety 
violation'' would impede FTA's ability to provide flexible oversight of 
the Safety Program. For example, a serious safety violation could 
include a violation of Federal transit safety law that leads to death 
or serious injury of a passenger or transit employee. A serious safety 
violation also could include a violation of Federal transit safety law 
that could lead to death or serious injury of a passenger or transit 
employee. Further, a serious safety violation could include a rail 
transit agency's failure to comply with a corrective action plan or a 
small bus operator's failure to develop and implement a transit agency 
safety plan, once the rule requiring such plans becomes final. FTA does 
not believe that the aforementioned examples, however, encompass the 
full scope of what FTA could consider a serious safety violation, and 
therefore does not agree that it should define the term in this rule.
``Recipient''
    Some commenters stated that although the definition of 
``recipient'' implies inclusion of SSOAs as recipients of Chapter 53 
funding, the description of actual affected entities throughout the 
NPRM suggested that it applied to public transit agencies and not 
SSOAs. Those commenters asked for clarification on whether SSOAs were 
implicitly included in the definition. Those commenters further stated 
that if FTA intended to include SSOAs, there would be a disincentive 
for SSOAs to participate in the formula grant program, and recommended 
that FTA explicitly exclude SSOAs from the definition of ``recipient.''
    FTA RESPONSE: In response to comments, FTA has revised the 
definition of ``recipient'' to align with the statutory definition of 
that term at 49 U.S.C. 5329(a). We have also clarified that the term 
``recipient'' includes State Safety Oversight Agencies.
``More Frequent Oversight''
    A few commenters asked FTA to define what it meant by ``more 
frequent oversight'' as part of the suite of enforcement actions that 
FTA could initiate under section 670.21.
    FTA RESPONSE: FTA does not agree that it should provide a 
definition for the term ``more frequent oversight.'' The frequency of 
enhanced oversight of a recipient by FTA will vary on a case-by-case 
basis.
``Reportable Incident'' and ``Occurrence''
    One commenter asked if the definitions from FTA's SSO rule, 
codified at 49 CFR 674, of ``reportable incident'' and ``occurrence'' 
would be incorporated into the current proposed rule.
    FTA RESPONSE: Definitions for ``reportable incident'' and 
``occurrence'' were not included in the NPRM, and therefore, will not 
be included in this final rule.
``Corrective Action Plan''
    A few commenters asked FTA to enhance the existing ``corrective 
action plan'' definition to capture the broader processes or mechanisms 
associated with the ongoing management of corrective action plans by 
recipients and oversight agencies.
    FTA RESPONSE: FTA has revised the definition of ``corrective action 
plan'' to align with the definition of that term in the final rule for 
State Safety Oversight at 49 CFR part 674.
Other Terms
    One commenter asked for definitions of the following individual 
terms: ``hazard''; ``assessment''; ``evaluation''; ``light rail'' and 
``heavy rail''; ``enforcement''; ``employee accident and injury''; and 
``near miss''. Commenters also suggested that FTA define the following 
additional terms: analysis; safety deficiency; noncompliance; public 
transportation system; and state of good repair.
    FTA RESPONSE: FTA is not including definitions for the following 
terms that were not included in the NPRM proposals: ``light rail,'' 
``heavy rail,'' ``employee accident and injury,'' and ``near miss.'' 
The following terms

[[Page 53051]]

are not defined in this rule, statute or regulation and will be 
interpreted in accordance with the definition set forth in dictionaries 
of common usage: ``assessment''; ``evaluation'';'' analysis''; and 
``noncompliance.''
    FTA does not agree that it needs to define the term ``public 
transportation system.'' FTA believes that it is clear that the term 
means a transit system operated by a recipient of funds under 49 U.S.C. 
chapter 53 and ``recipient'' is a defined term under the rule.
    FTA does not agree that it should define the term ``safety 
deficiency.'' What amounts to a ``safety deficiency'' will vary on a 
case-by-case basis.
    As required by 49 U.S.C. 5326(b)(1), FTA has defined the term 
``state of good repair'' in the Transit Asset Management final rule, 
which was published on July 26, 2016. (81 FR 48889).
Subpart B--Compliance Assessments
    In this final rule, FTA has changed the heading of this subpart 
from ``Compliance Assessments'' to ``Inspections, Investigations, 
Audits, Examinations and Testing'' to better describe the subject 
matter of this subpart.
670.11 General
    In this final rule, FTA has changed the title of this section from 
``Inspections, Investigations, Audits, Examinations and Testing'' to 
``General.'' In the NPRM, this section set forth FTA's statutory 
authority to conduct inspections, investigations, audits, examinations 
and testing. In the NPRM, FTA asked how it should define ``reasonable 
time and manner'' for entering into and inspecting a recipient's 
equipment, facilities, rolling stock, operations, and relevant records.
Comments: General
    With respect to ``reasonable time,'' commenters suggested: (1) At 
least forty-eight hours; (2) twenty-four hours; (3) a few days (4); 
five days; (5) thirty days; and (6) sixty days. A few commenters also 
recommended that FTA adopt the investigation processes currently used 
by other Federal agencies. A few commenters indicated the need for more 
clarity and requested that FTA propose specific language to define the 
terms ``reasonable time'' and ``reasonable manner.'' One commenter 
requested clarity regarding ``written notice'' as it is used in section 
670.11(b). Another commenter asked what would trigger an inspection: 
passage of time; a particular incident; or an industry-wide issue. The 
commenter stated that uncertainties would lead to confusion about what 
is expected as transit agencies seek to accommodate FTA's efforts and 
requirements. Another commenter requested that FTA define the SSOA's 
role and responsibilities when FTA takes enforcement actions.
    One commenter stated that FTA should clarify whether it has the 
authority to enter a transit property even without the consent of the 
recipient. The commenter noted that even with written notification, a 
recipient may object to external auditors entering its property for 
various reasons, including insufficient training (such as roadway 
worker protection) and administrative issues, such as schedule 
conflicts. Other commenters requested that FTA clarify the following: 
(1) Whether its representatives must be escorted by authorized transit 
agency representatives while on the property for the purposes of 
conducting an audit or inspection; and (2) whether FTA representatives 
must receive agency-required safety training (such as roadway worker 
protection) in order to enter a rail right-of-way. Several commenters 
noted that FTA should require its representatives to follow all of a 
recipient's applicable safety rules and procedures during the course of 
conducting an audit or inspection.
    Regarding the process for providing notice, some commenters stated 
that FTA should provide advance written notice to a recipient stating 
the purpose for the inspection. Several commenters noted that the 
written notice should reference the specific information that FTA would 
be seeking. A few commenters recommended that FTA also provide notice 
to an SSOA prior to inspecting a rail transit agency. Many commenters 
suggested that the written notice should be directed to a recipient's 
general manager, chief executive officer, or other Accountable 
Executive, with a copy provided to the SSOA. A few commenters stated 
that notification should include an official letter emailed to the 
Accountable Executive or their designated point of contact and a phone 
call. Several commenters suggested that FTA require some form of 
delivery/read receipt to confirm a recipient's receipt of the 
notification.
    One commenter recommended that FTA work cooperatively and 
collaboratively with a recipient to establish an agenda for the site 
visit. Other commenters acknowledged that emergency situations would 
eliminate the need for notification. Two commenters noted that there 
should be limits on the number of times FTA can audit a transit agency 
unless there are significant safety findings during an audit or 
investigation. One commenter indicated support for unannounced FTA 
inspections, testing, and records reviews, but noted that the Federal 
process should not prevent the transit agency from providing its 
routine transit service safely, nor put any of the FTA, SSOA, transit 
agency personnel, or members of the public at risk during the process.
    Some commenters recommended that Federal personnel should receive 
the recipient's approved track safety training prior to conducting 
activities within a recipient's transit system. One commenter stated 
that Federal personnel should provide a recipient with details of their 
safety training and certification.
    One commenter stated that a final rule explicitly should allow host 
agencies to determine reasonable and safe options for granting an FTA 
request to inspect or test equipment, or to enter restricted or 
otherwise potentially hazardous areas. Additionally, the commenter 
suggested that a final rule should allow the host agency's lead 
representative to call an emergency ``stop'' to activities, at his or 
her discretion, for fire-life-safety reasons, if unsafe behavior is 
observed that could potentially place a person in danger, or if 
required personal protective equipment is not worn or not used 
appropriately.
    Commenters requested additional details regarding how, why and when 
FTA would enter a public transportation system to conduct a safety 
inspection. Commenters also requested that FTA define its role, 
responsibilities and authority in the testing and inspection of a 
public transportation system's equipment, facilities, rolling stock and 
operations.
    A number of commenters questioned how FTA and SSOAs would 
coordinate activities with a rail transit agency when FTA exercises its 
authority under the section. Some commenters recommended that FTA 
develop program standards for conducting activities under the section 
and submit them for public comment. Several commenters also noted that 
the proposed regulatory text did not include notification to the State 
when FTA would notify a recipient of its intent to exercise authority 
under the section. A few other commenters recommended that FTA focus 
its oversight on rail safety, asserting that bus-only systems are 
already safe.
    One commenter asked how FTA's inspections, oversight, safety 
standards, or directives would complement, supplement, or possibly 
conflict with those of SSOAs. The commenter recommended that FTA 
clarify the

[[Page 53052]]

nature of coordination, if any, between FTA and an SSOA. The commenter 
also suggested that FTA's authority to conduct random safety 
inspections at any time without notice or coordination with a rail 
transit agency could consequently divert critical staff resources away 
from operations or maintenance activities or interfere with the smooth 
functioning of daily transit operations.
    Commenters also asked whether FTA would delegate its authority to 
carry out this section to an SSOA. Similarly, a commenter stated that 
since SSOAs and FTA are safety oversight partners, there should be a 
mechanism for FTA to work with an SSOA and factor SSOA findings into 
any FTA enforcement action. The commenter recommended that there should 
be a detailed process for monitoring corrective actions between FTA and 
SSOAs.
    FTA also received comments regarding how this section aligned with 
FTA's available online SMS Awareness training. One commenter noted, and 
asked for an explanation of, an apparent discrepancy between FTA's SMS 
Awareness training, which specifically says that investigations are not 
a function of SMS, and the NPRM, which indicates that the inspections, 
investigations, audits, examinations and testing are directly a part of 
an SMS approach.
    Several commenters noted that the SMS reviews and audits should be 
part of the triennial or state management reviews, unless there has 
been an accident that the National Transportation Safety Board (NTSB) 
is investigating. These commenters recommended that FTA define the 
specific types of incidents or complaints that could result in an FTA 
audit or investigation. Another commenter suggested that FTA state the 
frequency it proposes to inspect, audit or perform a ``compliance 
assessment'' of each property. This commenter also recommended that for 
efficiency purposes, FTA's inspection cycle should correspond with the 
SSOA triennial reviews of local rail transit operators. Commenters 
stated that if a property is undertaking a robust SMS, then the FTA 
assessment cycle should be longer. For clarity, commenters recommended 
that FTA include language which describes the new compliance 
assessments contemplated by this rulemaking, and describes how they 
will correspond with existing oversight programs and grant management 
procedures.
    With regard to proposed section 670.11(b), commenters queried 
whether the prescription of ``recordkeeping and reporting 
requirements'' was meant to apply solely to the production of documents 
for the purposes of the inspection or audit at hand, or if FTA would be 
able to direct agency-wide recordkeeping and reporting practices at any 
time.
FTA Response: General
    FTA appreciates those commenters who responded to our request for 
comment on how ``reasonable time'' and ``reasonable manner'' should be 
defined for the purpose of FTA entering into and inspecting equipment, 
facilities, rolling stock, operations and relevant records. Upon 
consideration of the comments, FTA has decided not to define 
``reasonable time'' or ``reasonable manner'' in regulatory text. FTA 
does not believe that narrowly defining ``reasonable time and manner'' 
would enable FTA to sufficiently oversee the safety of our Nation's 
transit systems. For instance, there are a number of scenarios that may 
require FTA to enter into and inspect a recipient's property with 
minimal notification.
    Accordingly, under the final rule, the Administrator has discretion 
in determining what amounts to a reasonable time and manner, on a case-
by-case basis. FTA believes it should have flexibility with regard to 
how it will notify a recipient. Thus, the medium utilized to convey 
notice should not be limited by regulatory text. FTA will use 
reasonable means of communication to include telephonic and electronic 
media. FTA will work with transit systems and appropriate State 
entities to ensure that adequate notice is provided so that Federal 
personnel do not unduly impede operations.
    FTA does not agree with those commenters who indicated that a host 
agency should be able to place limitations on FTA's exercise of its 
statutory authority when conducting compliance activities associated 
with this rule. Further, FTA does not agree with commenters who 
suggested that it should prescribe through regulation how and when it 
would conduct safety inspections, investigations, audits, examinations 
and testing. FTA's actions will be based on consideration of particular 
sets of facts. FTA does not believe that limiting the scope of the 
actions it has the authority to take via rulemaking contributes to 
improving public transportation safety. Relatedly, FTA does not believe 
it is appropriate to define through regulation its role, 
responsibilities, and authority in the inspecting, investigating, 
auditing, examining, and testing of a public transportation system's 
equipment, facilities, rolling stock and operation, as each activity 
may require flexibility on behalf of FTA and the recipient.
    FTA agrees with those commenters who suggested that FTA and its 
designees comply with a recipient's safety and training protocols and 
requirements. FTA will coordinate with recipients to ensure its 
activities are carried out in a safe manner. In addition, when FTA 
conducts safety activities at a rail transit agency, FTA will 
coordinate with the relevant SSOA as necessary and to the extent 
practicable. However, it may not always be feasible for an FTA 
representative to undergo agency-specific training or verify his or her 
training to a recipient before conducting safety activities on behalf 
of FTA under this rule.
    In general, FTA disagrees with those commenters who suggested that 
FTA provide more prescriptive processes. FTA believes that a certain 
level of flexibility is necessary in order for the agency to 
effectively administer the Safety Program. For example, FTA does not 
believe that it should be limited to only engaging in activities under 
this section upon the consent of a recipient. To do so would be 
unreasonable, considering there will likely be occasions when 
inspections and investigations are required when FTA becomes aware of 
an accident. In addition, FTA does not agree with commenters who 
suggested that FTA formally establish a schedule for conducting 
activities under this section or that FTA align its activities under 
this section with existing audit processes. FTA may establish a formal 
schedule for conducting activities under this section in the future, 
but a schedule is not appropriate for this rule.
    In exercising its enhanced statutory authority for safety 
oversight, FTA recognizes the critical role of State and local safety 
oversight partners. To that end, FTA will work with SSOA and transit 
system personnel to accommodate operational and staffing challenges 
that may occur as it exercises its authority. However, FTA does not 
agree that it should delegate its authority to the SSOAs. In response 
to the comment regarding SMS Awareness training, FTA notes that 
implementation of SMS principles in no way contradicts or conflicts 
with its authority to engage in inspections, investigations, or other 
regulatory compliance processes.
    One commenter asked whether the proposed provision to impose more 
frequent reporting requirements applied to documents requested for 
purposes of an audit or inspection, or if FTA would be able to direct 
agency-wide recordkeeping and reporting practices at

[[Page 53053]]

any time. As proposed, FTA could impose more frequent reporting 
requirements that would not necessarily be tied to an audit or 
inspection. FTA maintained this provision in the final rule without 
substantive change.
    FTA made a few nonsubstantive, clarifying edits to this section in 
the final rule. In addition, FTA eliminated the 30-day response 
timeframe for document requests because there may be instances where 
FTA needs requested information more quickly. Also, as stated above, 
FTA refined the notice provision in this section to provide that the 
Administrator will decide on a case-by-case basis what ``reasonable 
time and manner'' would be for FTA to enter into and inspect or test 
equipment, facilities, rolling stock, operations, and relevant records.
670.13 Request for Confidential Treatment of Records
    This section proposed procedures for a recipient to request 
confidential treatment of any record filed with or otherwise provided 
to FTA in connection with its administration of the Safety Program.
Comments: Request for Confidential Treatment of Records
    Many commenters questioned the authority by which FTA would be able 
to protect information it received from recipients from public 
disclosure. Commenters asked how FTA would ensure the integrity of 
confidential information during all phases of the reporting and 
information retention process. A few commenters stated that the 
proposed regulatory text was insufficient to provide automatic blanket 
protection for any information pertaining to public safety or that is 
safety-critical or safety-sensitive. Several commenters stated that 
FTA's proposed confidentiality clause would add nothing to existing 
law, and only narrow the exemption window through overly technical 
requirements which would allow automatic full disclosure of potentially 
security sensitive information if a transit agency accidentally 
neglects to submit the correct format.
    A few commenters suggested that FTA clarify that the Freedom of 
Information Act (FOIA) exemptions apply to all recipients, whether or 
not they are subject to FOIA. One commenter further noted FTA should 
explicitly recognize confidentiality provisions under other FOIA-like 
policies that are adopted by transit agencies. However, a number of 
commenters asserted that State law could overrule Federal 
confidentiality protection, and that the language of the proposed rule 
was not sufficient to prevent documents from being discovered in a 
civil action or being disclosed in response to a public records request 
at the State level. Commenters suggested that FTA should recognize that 
States are unable to afford transit agencies this protection, even if 
FTA determines a record is confidential. The commenters recommended 
that FTA provide protection for any sensitive or confidential 
information, and ensure that Federal confidentiality supersedes any 
State disclosure requirements.
    Another commenter asked that FTA describe the objective process FTA 
would use to determine if records are subject to public disclosure. One 
commenter was concerned that a recipient may use the provision to 
report directly to FTA and bypass and withhold information from its 
SSOA, which is obligated (as a State/local agency) under State law to 
disclose any investigative reports or safety information.
    A few commenters expressed concern that FTA proposed to reserve the 
right to make its own final determination of whether a confidentiality 
request would be granted. Commenters asked for clarification on the 
circumstances under which FTA would not keep records confidential, as 
requested. The commenters also stated such authority to make final 
determinations would overrule existing State laws and authorities, as 
well as Sensitive Security Information (SSI) guidelines.
    One large transit agency commented that 18 U.S.C. 1905 applies only 
to Federal employees or Federal agencies, and not to transit agencies 
since they are not Federal entities. The commenter suggested that this 
section should therefore include clarification that the disclosure 
provisions of 18 U.S.C. 1905 will apply to transit agencies that submit 
records pursuant to a request for confidentiality, even though they are 
not Federal entities. Another commenter stated that since an agency is 
required to submit any record for which it is seeking confidential 
status, the act of that submittal destroys or constitutes a waiver of a 
transit agency's right to confidentiality of records for which it 
claims attorney-client or work product privilege. The commenter 
suggested that a transit agency could instead provide pertinent 
information regarding date, time, location and a brief explanation of 
the basis for asserting attorney-client or work product privilege.
    Several commenters suggested that FTA allow a transit agency 30 
working days to evaluate and respond to a decision by the Administrator 
to deny a confidentiality request. Commenters recommended that a final 
rule provide a reasonable appeal mechanism for transit agencies that 
disagree with the Administrator's decision to release records. Other 
commenters recommended that the minimum amount of time given to an 
agency to respond to an FTA denial of confidential treatment should be 
changed to at least 10 days, due to the harm that such release could 
cause.
FTA Response: Request for Confidential Treatment of Records
    To clarify, the proposed confidentiality provision was not intended 
to protect information from public disclosure. The provision was 
intended to provide recipients with the opportunity to alert FTA of the 
alleged confidentiality of a requested record. Unlike other Federal 
safety regulatory agencies, FTA does not have statutory authority to 
protect safety-related information. However, under the State Safety 
Oversight (SSO) rules at 49 CFR 674.27(a)(7), an SSOA's program 
standard must include procedures for protecting the confidentiality of 
investigation reports.
    Documents submitted to FTA are subject to FOIA and are generally 
releasable to the public upon request. FTA may maintain the 
confidentiality of accident investigations, incident reports, and other 
safety-related information to the maximum extent permitted under 
Federal law, including the nine exemptions under FOIA. FTA will 
evaluate whether or not a document may be withheld from public 
disclosure under the Department of Transportation's FOIA rules at 49 
CFR part 7.
    FTA agrees that its confidential treatment of information would not 
preempt State law; therefore, recipients should exercise their use of 
this provision accordingly.
    FTA made nonsubstantive, clarifying edits to this section in the 
final rule.
Subpart C Enforcement
670.21 General
    This section of the NPRM set forth the Administrator's enforcement 
authorities under 49 U.S.C. 5329.
    In general, FTA's responses to comments received on this section 
are addressed in other sections throughout the preamble. For example, 
comments related to reporting requirements are addressed in the 
response to comments under section 670.11, above. Responses to comments 
related to withholding of funds immediately follow this section, below.

[[Page 53054]]

    FTA has made two changes to this section as a result of FAST Act 
amendments made to 49 U.S.C. 5329. First, FTA revised section 670.21(e) 
to limit withholding of a recipient's 49 U.S.C. 5307 funds to no more 
than twenty-five (25) percent. Second, FTA added a new section 
670.21(g) to explicitly incorporate into this rule FTA's authority to 
issue restrictions and prohibitions on a recipient's operations, if 
through testing, inspection, investigation, audit or research the 
Administrator determines that an unsafe condition or practice, or a 
combination of unsafe conditions and practices, exist such that there 
is a substantial risk of death or personal injury. The language in the 
rule is identical to the language in the statute. Further, the proposed 
rule included the authority for FTA to issue special directives in the 
event an unsafe practice or condition caused an emergency situation 
involving a hazard of death, personal injury, damage to property or 
equipment, or significant harm to the environment. The authority under 
new section 670.21(g) may be considered a specific type of special 
directive, applicable in certain circumstances, and thus is materially 
related to FTA's proposal to issue special directives. Moreover, FTA 
finds good cause to include reference to its authority to issue 
restrictions and prohibitions in the final rule. In the NPRM, section 
670.21(a)-(f) included a list of the authorities provided to FTA by 
Congress in MAP-21 to carry out the Safety Program. In this final rule, 
FTA has added a new subsection 670.21(g) which merely adds to the list 
of authorities provided to FTA under MAP-21, to reflect the authority 
to issue restrictions and prohibitions that was added under the FAST 
Act. Accordingly, FTA has ``good cause'' under the Administrative 
Procedure Act (5 U.S.C. 553(b)) to finalize these provisions at this 
time because additional public comment is ``unnecessary'' as the rule 
merely restates the statutory provision.
670.23 Use or Withholding of Funds
    This section proposed procedures for FTA to direct the use of 
Chapter 53 funds where safety deficiencies are identified by the 
Administrator or an SSOA. This section also proposed procedures for 
withholding of Chapter 53 funds from a recipient or State for non-
compliance, where the Administrator determines that there has been a 
pattern or practice of serious violations of the Safety Program or any 
regulation or directive issued under those laws for which the 
Administrator exercises enforcement authority for safety.
Comments: Use or Withholding of Funds
    Many commenters expressed concern about the potential loss of 
Federal funding as a result of safety violations, as many safety 
violations may be due to preexisting and chronic underinvestment, with 
any loss of funding resulting in a worsening of transit agencies' 
financial situations and greater safety deficiencies. In addition, 
several commenters stated that the connection between States, SSOAs and 
transit agencies was unclear, and that the NPRM did not explain how a 
State would be held responsible for a safety deficiency at a transit 
agency. These commenters asked that the rule clarify what is meant by a 
State, and to clearly differentiate how the notification, appeal, and 
withholding actions and procedures would affect the various entities.
    One commenter stated that SSOAs should not be subject to this 
section because, although the definition of ``recipient'' in section 
670.5 implies inclusion of SSOAs, the description of actual affected 
entities throughout the NPRM instead suggests only public transit 
agencies. The commenter suggested that SSOA funding be excluded from 
the definition of ``recipient'' under section 670.5.
    Several commenters expressed concern that funding could be withheld 
from the entire State or SSOA, due to the action (or inaction) of a 
single subrecipient, thus penalizing all the subrecipients in the 
State. The commenters asked that FTA add language to section 670.23 to 
either explain the rationale and process for holding a State liable for 
the deficiencies of a particular transit agency, or add language which 
would limit enforcement actions to the particular subrecipient instead 
of the entire State. Similarly, one commenter stated that there should 
be a process to ensure that a rail transit agency in one State does not 
cause FTA to withhold chapter 53 funds from an SSOA or rail transit 
agency in another State.
    Several commenters stated that section 670.23(b)(3) only allows, 
but does not compel, FTA to consider a recipient's response to a notice 
of violation. Commenters suggested that FTA should have to consider a 
recipient's response to a notice of violation. These commenters also 
stated that this section did not adequately provide an opportunity for 
notice and comment. In addition, commenters stated that this section 
did not provide a sufficient process for a transit agency to appeal an 
erroneous notice of violation, which could result in a significant loss 
of funding. One commenter further stated that withholding of funds 
should be considered only after consultation with the SSOA and after a 
rail transit agency has been given ample opportunity to address the 
safety concern and respond to FTA. One commenter suggested that FTA 
should not withhold funding from a recipient who corrects an identified 
deficiency by implementing FTA's required remedial action and mitigates 
the deficiency within the 90 days following the initial notice of 
violation.
    Some commenters stated that because of the similarities between 
this section and section 670.27, special directives should be invoked 
as a remedy for program deficiencies before withholding funds, and that 
this sequence should be clearly required in the rule. Another commenter 
requested that section 670.23 be incorporated into section 670.27, due 
to its more developed appeal process, so that transit agencies would 
have more recourse in the case of an FTA decision to withhold funding.
    Several commenters asked what would happen if FTA failed to adhere 
to the established 30-day decision timeline under section 670.23(b)(3) 
and queried whether the violation would be automatically dismissed if 
the deadline passed or whether FTA would be subject to consequences for 
missing the deadlines. One commenter stated that an FTA decision to 
redirect or withhold funds amounts to an unfunded mandate.
FTA Response: Use or Withholding of Funds
    FTA understands that many transit operators, especially smaller 
transit operators, have limited financial resources. However, FTA 
believes that the decision to withhold funds should be at the 
discretion of the FTA Administrator, in consideration of the nature and 
severity of the safety violation at issue. FTA may consult with an SSOA 
before withholding any funding or issuing a violation to a rail transit 
agency. However, FTA does not believe that it needs to prescribe such a 
process in regulatory text.
    FTA will not hold an SSOA directly accountable for a safety 
deficiency at a rail transit agency. However, FTA may hold an SSOA 
accountable for failing to adequately oversee a rail transit system. 
Accordingly, FTA does not believe that SSOAs should be excluded from 
this rule. FTA agrees that all subrecipients in a State should not be 
held accountable for one subrecipient's actions, and we have removed 
the word

[[Page 53055]]

``State'' from 670.23(c)(ii). FTA will not withhold funds from a rail 
transit agency because of a safety issue related to another rail 
transit agency.
    In the NPRM, FTA proposed a process for a recipient to respond to a 
notice of violation. FTA proposed to issue a response to the recipient 
within 30 days of its receipt of the recipient's response. FTA has 
changed ``may'' to ``shall'' to indicate the Administrator will 
consider a recipient's response. FTA intends to make a decision within 
30 days of receiving a response from a recipient, but FTA will not 
automatically dismiss violations if it misses the deadline.
    FTA's enforcement tools under the Safety Program include directing 
the use of funds, withholding funds, and issuing directives. 
Intentionally, FTA did not define specific circumstances that would 
trigger FTA to take one action over another or prescribe specific 
timeframes that a recipient would need to comply with a special 
directive. An enforcement action that may be appropriate to address one 
recipient's safety issue may not be appropriate to address the same 
issue at another recipient's transit system. FTA's recipients range in 
diversity of mode, operating environment, sophistication, expertise and 
resources. FTA believes it is important to establish and implement the 
Safety Program in a manner that is both scalable and flexible. FTA does 
not agree that requiring that funding be redirected or withheld is an 
unfunded mandate.
    In the final rule, FTA has reorganized this section for clarity. In 
addition, FTA has revised this section to limit the amount that may be 
withheld to not more than 25% of section 5307 funds in accordance with 
49 U.S.C. 5329(g).
670.25 General Directives and 670.27 Special Directives
    In section 670.25, FTA proposed procedures for the issuance of a 
general directive by the Administrator. In section 670.27, FTA proposed 
procedures for the issuance of a special directive to one or more named 
recipients.
Comments: General Directives and Special Directives
    FTA received a number of comments related to the proposed rule for 
general and special directives. Some commenters asked for 
clarifications on the proposed procedures for both types of directives. 
Some comments requested that FTA specify which directives require 
general manager and Board response, stipulate timelines for response 
due dates, and clarify the notice and appeal processes. One commenter 
stated that there was no process identified for FTA to notify a 
recipient in a timely way that its response to a directive is 
satisfactory, which could delay a recipient's implementation of a 
corrective action and put the transit system in a position of increased 
liability or undermine public confidence. One commenter noted that 
State and local agencies would need time to implement a general or 
special directive and recommended that FTA provide a time period for 
implementation.
    Several commenters noted that the processes for responding to or 
appealing the FTA Administrator's decisions under part 670 are 
inconsistent depending on whether it is a general directive, a special 
directive, or a withholding of funds. One commenter suggested that FTA 
devote one section solely to responding to or appealing the 
Administrator's decisions.
    A number of commenters noted that the rule did not define emergency 
situations that might give rise to the issuance of a general directive. 
Commenters suggested that FTA define ``emergency situation.''
    Some commenters stated that FTA did not have the authority to take 
enforcement action because of a ``significant harm to the 
environment.''
    One commenter requested that FTA provide specific details about the 
enforcement action that could be taken under each section. A commenter 
asked how FTA would identify the need for a general or special 
directive and how FTA would ensure that qualified persons were involved 
in the development of a directive.
    One commenter noted that under proposed section 670.27(d), a 
recipient would be required to ``observe'' a special directive during 
FTA's review of a petition for reconsideration. The commenter also 
noted that proposed section 670.27(f)(4) did not provide a timeframe 
from when FTA would make a decision to when a recipient would be 
notified of FTA's decision, during which time a recipient would still 
be required to ``observe'' the special directive. The commenter asked 
what ``observe'' meant and how FTA would enforce the provision if a 
recipient could not meet the requirements of a special directive.
    One commenter suggested that petitions for reconsideration should, 
at a minimum, be handled by the original authority, a peer, or a 
superior authority, instead of the FTA Chief Counsel, asserting that 
the Chief Counsel should not be placed in the position of appellate 
authority over his or her Administrator.
FTA Response: General Directives and Special Directives
    Intentionally, FTA did not define specific circumstances that would 
trigger FTA to take one action over another or prescribe specific 
timeframes that a recipient would need to comply with either a general 
or special directive. As stated above, an enforcement action that may 
be appropriate to address one recipient's safety issue may not be 
appropriate to address the same issue at another recipient's transit 
system. FTA's recipients range in diversity of mode, operating 
environment, sophistication, expertise and resources. FTA believes that 
it is important to establish and implement the Safety Program in a 
manner that is both scalable and flexible.
    In section 670.25, FTA proposed to issue general directives that 
could apply to all recipients or a subset of recipients and that would 
be effective upon notice provided by the Administrator in the Federal 
Register. A general directive would be subject to a public comment 
period. Following the public notice and comment period, FTA would 
publish a response to the comments in the Federal Register. The Federal 
Register notice also would include a final iteration of the general 
directive.
    Upon further consideration, FTA has determined that general 
directives and the Federal Register process are not appropriate means 
with which to address an emergency situation. However, FTA believes 
that providing notice and an opportunity for comment through the 
Federal Register is an appropriate method of addressing safety issues 
that require mitigation, but need not be addressed immediately upon 
notice. Accordingly, under the final rule, FTA would not use a general 
directive to address an emergency situation.
    Special directives are the more appropriate tool to address 
emergency situations. In the NPRM, FTA proposed to issue a special 
directive to one or more named recipients to address a safety issue 
specific to the recipient's transit systems. A special directive would 
become effective upon direct notice from FTA to a recipient. FTA has 
retained the NPRM provisions related to when FTA would issue a special 
directive.
    FTA agrees with the commenter who suggested that FTA's Chief 
Counsel should not be placed in the position of appellate authority 
over the Administrator. Under this rule, the Deputy Administrator will 
issue special directives, and the Administrator will

[[Page 53056]]

serve as the final appellate authority for special directives. Within 
90 days of the receipt of a petition for reconsideration, the 
Administrator would either grant or deny a petition, in whole or in 
part, and provide notice to a recipient of his or her decision.
    Because FTA will issue special directives when it FTA finds a 
substantial risk of death or personal injury, or damage to property or 
equipment, a recipient will be required to ``observe'' the actions 
required under a special directive while its petition was being 
reviewed by the Administrator. Within this context, ``observe'' means 
that the recipient must implement the requirements under the special 
directive during the review period. FTA will provide guidance to a 
recipient on what specific steps need be taken to implement the 
requirements of the special directive during the review period.
    FTA agrees with commenters who suggested that FTA not take action 
under this rule to address a ``significant harm to the environment.'' 
FTA's primary goal under the Safety Program is to ensure the safety of 
passengers and transit workers. Readers should note, however, that FTA 
does have the authority to address environmental issues related to a 
public transportation system that have an impact on passenger or worker 
safety. FTA has revised the final rule to remove the language related 
to harm to the environment.
670.29 Advisories
    This section described how the Administrator would issue 
advisories, which would recommend corrective actions to resolve or 
mitigate an unsafe condition.
Comments: Advisories
    Several commenters noted that, as proposed, compliance by a 
recipient with an advisory would be discretionary. Commenters also 
noted that advisories issued by other Federal agencies are not 
discretionary and include required actions. Accordingly, a commenter 
suggested that FTA use ``bulletin'' instead of ``advisory.''
    Commenters asked why FTA did not propose to submit an advisory to a 
public notice and comment process similar to what was proposed for a 
general directive. One commenter recommended that FTA establish a 
formal process for issuing advisories. Several commenters requested 
clarification on how an advisory would be issued and whether a 
recipient would have an opportunity to respond.
    There were a number of comments related to proposed section 
670.29(b). In that section, FTA proposed that the Administrator could 
take a recipient's noncompliance with an advisory into consideration 
when deciding to take an enforcement action. One commenter noted that 
this section was inconsistent with SMS. The commenter noted that each 
agency would determine whether or not the hazard or risk referenced in 
the advisory was relevant, and if so, determine an appropriate strategy 
to reduce risk to an acceptable level, which could include an 
alternative mitigation than what was recommended in the advisory.
    Some commenters asked whether the subject matter of an advisory 
could lead to the issuance of a special directive. One commenter asked 
whether FTA planned to issue civil penalties against a recipient which 
did not comply with an advisory, and noted that other U.S. DOT 
administrations do not assess civil penalties under such circumstances.
    Several commenters sought clarification on the difference between 
an advisory and a directive. One commenter suggested that FTA strike 
the section on advisories because FTA should address unsafe conditions 
with a general directive.
FTA Response: Advisories
    In the NPRM, FTA proposed that advisories would include recommended 
actions. Directives require a recipient to take mandatory action to 
mitigate a specific safety risk. FTA believes it is important to 
establish several tools that may be used to address different levels of 
safety risks, from low to high. An advisory would be used to address 
lower level safety risks or in situations where FTA lacks sufficient 
data to accurately assess the risk.
    Commenters were accurate in their assertions that ``compliance'' 
with an advisory would be at a recipient's discretion. FTA agrees that 
each agency should determine whether or not the hazard or risk 
addressed in an advisory is relevant to its system and determine 
appropriate mitigations. Due to the nature of an advisory, a recipient 
need not ``comply'' with an advisory, but instead would decide whether 
or not to adopt the recommended actions. Accordingly, FTA has revised 
this section in the final rule to remove the language stating that the 
Administrator would take a recipient's noncompliance with an advisory 
into consideration when taking enforcement actions. FTA is aware that 
other Federal agencies use advisories to impose mandatory requirements 
on their regulated communities. FTA has elected to impose mandatory 
requirements through the use of directives, and recommendations through 
the use of advisories.
    FTA does not have the authority to issue civil penalties. However, 
FTA could issue a directive subsequent to an advisory if FTA finds that 
the hazard or risk identified in the advisory requires further 
mitigation.
    FTA does not agree that it should submit mere recommendations 
through the public notice and comment process or establish another 
formal process for issuing an advisory. FTA will notify recipients of 
an advisory by publishing a notice in the Federal Register. FTA will 
continue to post advisories to its public Web site and incorporate them 
into the National Safety Plan.
670.31 Purpose and Content of the National Public Transportation Safety 
Plan
    This section described the statutory mandates and proposed 
components of a National Public Transportation Safety Plan (National 
Safety Plan).
Comments: National Safety Plan
    Several commenters supported FTA's proposals for a National Safety 
Plan. Some commenters requested additional information and 
clarification about the contents of a National Safety Plan in order to 
be able to comply with the Plan's requirements. One commenter asked how 
FTA would update a National Safety Plan and whether each update would 
be subject to notice and comment.
    One commenter stated that a National Safety Plan must be 
implemented via rulemaking if SSOAs would be expected to ensure that 
rail transit agencies are complying with the Plan. The commenter stated 
that a National Safety Plan should not be updated periodically because 
any changes may require an SSOA to establish new rules, which would be 
cumbersome, time consuming and expensive. Further, the commenter noted 
that many small transit providers adopt rules, policies and safety 
plans through Board actions. Therefore, if a National Safety Plan is 
changed periodically, transit agencies would need several months to 
comply with any changes, and to allow an opportunity for comment.
    One commenter requested that FTA coordinate the development of 
safety criteria and standards with the other U.S. DOT modal 
administrations, such as the FRA, to avoid conflicting standards. One 
commenter encouraged FTA to coordinate with transit agencies in the 
development of standards and criteria. The commenter suggested that

[[Page 53057]]

a National Safety Plan include a description of safety outcomes and 
goals, and methods for identifying risks and targeting priorities to 
achieve safety goals.
    Several commenters noted that it was difficult to comment on a 
National Safety Plan because FTA had not published final rules for 
other components of the Public Transportation Safety Program. Some 
commenters requested additional information from FTA on the nexus 
between state of good repair and safety.
    One commenter suggested that FTA adopt the framework for a National 
Safety Plan that was recommended by the Transit Advisory Committee for 
Safety (TRACS). The commenter noted that the proposed rule included a 
few of the TRACS recommendations, but would benefit from a more 
detailed description of the necessary elements that contribute to a 
more robust framework.
    Several commenters suggested other issues that FTA should address 
in a National Safety Plan, including employee issues such as driver 
assaults, restroom breaks, and blind spots. To ensure the safety of 
transit operators, a commenter recommended that a National Safety Plan 
require that buses be equipped with clear plastic partitions, a driver 
side door or window, and an emergency alarm. A commenter also 
recommended that a National Safety Plan require increased use of 
wayside fare collection, which the commenter suggested is a safer means 
to collect payment. Another commenter stated that a National Safety 
Plan must address blind spots, which make safe operation of transit 
buses difficult. Other commenters suggested that a National Safety Plan 
address pedestrian and bicycle safety.
FTA Response: National Safety Plan
    FTA intends for the National Safety Plan to serve as both the 
primary tool for FTA to communicate with the transit industry about its 
safety performance, and as a repository of guidance, best practices, 
technical assistance, tools and other information. FTA believes that a 
flexible approach to implementing a National Safety Plan would be the 
most effective way to disseminate information. Therefore, FTA intends 
to publish proposed substantive updates to the National Safety Plan, 
such as new performance criteria, for public notice and comment, but 
does not believe that the National Safety Plan needs to be a rule. FTA 
will incorporate guidance, technical assistance, and other tools into 
the Plan as they become available.
    In the NPRM, FTA proposed the initial contents of a National Safety 
Plan. The list of proposed contents was not exhaustive. On February 5, 
2016, FTA published its first proposed National Safety Plan for public 
notice and comment. See 81 FR 6372. The proposed Plan includes four 
safety performance criteria, an SMS implementation guide, and other 
guidance. The proposed Plan also includes proposed voluntary standards. 
FTA will coordinate with relevant U.S. DOT modal administrations and 
the transit industry in the adoption of any mandatory standards. In 
addition, the proposed Plan discusses safety outcomes and goals, the 
nexus between state of good repair and safety, pedestrian and bicycle 
safety, and the role of TRACS. The comment period for the proposed Plan 
closed on April 5, 2016, and FTA expects to publish its first National 
Safety Plan in the near future.
    FTA revised this section in the final rule to reflect changes to 49 
U.S.C. 5329(b) as amended by the FAST Act, which require a National 
Safety Plan to include standards to ensure the safe operation of 
transit systems.

IV. Regulatory Analyses and Notices

Executive Order 12866 and 13563; USDOT Regulatory Policies and 
Procedures

    Executive Orders 12866 and 13563 direct Federal agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits--including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity. Also, 
Executive Order 13563 emphasizes the importance of quantifying both 
costs and benefits, reducing costs, harmonizing rules, and promoting 
flexibility. As stated above, FTA does not believe that this rule 
imposes direct costs on entities other than FTA.
    FTA has determined this rulemaking is a nonsignificant regulatory 
action within the meaning of Executive Order 12866 and is 
nonsignificant within the meaning of the U.S. Department of 
Transportation's regulatory policies and procedures. FTA has determined 
that this rulemaking is not economically significant. The rule will not 
result in an effect on the economy of $100 million or more. The rule 
will not adversely affect the economy, interfere with actions taken or 
planned by other agencies, or generally alter the budgetary impact of 
any entitlements, grants, user fees, or loan programs.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Pub. L. 96-354; 
5 U.S.C. 601-612), FTA has evaluated the likely effects of the rule on 
small entities, and has determined that they will not have a 
significant economic impact on a substantial number of small entities.

Unfunded Mandates Reform Act of 1995

    This rule will not impose unfunded mandates as defined by the 
Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4; 109 Stat. 48).

Executive Order 13132 (Federalism)

    FTA has analyzed this rule in accordance with the principles and 
criteria established by Executive Order 13132, and determined that this 
rule will not have sufficient Federalism implications to warrant the 
preparation of a Federalism assessment. FTA has also determined that 
this rule will not preempt any State law or State regulation or affect 
the States' abilities to discharge traditional State governmental 
functions. Moreover, consistent with Executive Order 13132, FTA has 
determined that the rule does not impose direct compliance costs on 
State and local governments.

Executive Order 12372 (Intergovernmental Review)

    The regulations effectuating Executive Order 12372 regarding 
intergovernmental consultation on Federal programs and activities apply 
to this rulemaking.

Paperwork Reduction Act

    This rulemaking will not impose additional collection requirements 
under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501, et seq., or 
the OMB regulation at 5 CFR 1320.8(d). To the extent that there are any 
costs and burdens associated with any collections under this rule, the 
information collection will be incorporated into the rulemakings for 
Public Transportation Agency Safety Plans, State Safety Oversight, and 
the Safety Certification Training Program.

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 in the form of a categorical 
exclusion, environmental assessment, or environmental impact statement. 
This rule is categorically

[[Page 53058]]

excluded under FTA's environmental impact procedure at 23 CFR 
771.118(c)(4), pertaining to planning and administrative activities 
that do not involve or lead directly to construction, such as the 
promulgation of rules, regulations, and directives. FTA has determined 
that no unusual circumstances exist in this instance, and that a 
categorical exclusion is appropriate for this rulemaking.

Executive Order 12630 (Taking of Private Property)

    This rulemaking will not affect a taking of private property or 
otherwise have taking implications under Executive Order 12630 (March 
15, 1998), Governmental Actions and Interference with Constitutionally 
Protected Property Rights.

Executive Order 12898 (Federal Actions To Address Environmental Justice 
in Minority Populations and Low-Income Populations)

    Executive Order 12898 (February 8, 1994) 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 USDOT 
environmental justice initiatives accomplish this goal by involving the 
potentially affected public in developing transportation projects that 
fit harmoniously within their communities without compromising safety 
or mobility. Additionally, FTA has issued a program circular addressing 
environmental justice in public transportation, C 4703.1, 
``Environmental Justice Policy Guidance for Federal Transit 
Administration Recipients.'' This circular provides a framework for FTA 
grantees as they integrate principles of environmental justice into 
their transit decision-making processes. The Circular includes 
recommendations for State Departments of Transportation, Metropolitan 
Planning Organizations, and public transportation systems on how to: 
(1) Fully engage environmental justice populations in the 
transportation decision-making process; (2) 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) avoid, minimize, or mitigate these effects.

Executive Order 12988 (Civil Justice Reform)

    This action meets the applicable standards in sections 3(a) and 
3(b)(2) of Executive Order 12988 (February 5, 1996), Civil Justice 
Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

Executive Order 13045 (Protection of Children)

    FTA has analyzed this rule under Executive Order 13045 (April 21, 
1997), Protection of Children from Environmental Health Risks and 
Safety Risks. FTA certifies that this 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 action under Executive Order 13175 (November 
6, 2000), and believes 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 rule under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use (May 18, 2001). FTA has determined that this 
action is not a significant energy action under the Executive Order, 
given that the action 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

    Anyone is able to search the electronic form of all comments 
received into any of FTA's dockets by the name of the individual 
submitting the comment or signing the comment if submitted on behalf of 
an association, business, labor union, or any other entity. You may 
review USDOT's complete Privacy Act Statement published in the Federal 
Register on April 11, 2000, at 65 FR 19477-8.

Statutory/Legal Authority for This Rulemaking

    This rulemaking is issued under the authority of 49 U.S.C. 
5329(f)(7), which authorizes the Secretary to issue rules to carry out 
the mandate for a Public Transportation Safety Program at 49 U.S.C. 
5329.

Regulation Identification Number

    A Regulation Identification Number (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 670

    Public Transportation, Safety.

    Issued in Washington, DC, under authority delegated in 49 CFR 
1.91.
Carolyn Flowers,
Acting Administrator.

    For the reasons set forth in the preamble, and under the authority 
of 49 U.S.C. 5329(f)(7), and the delegations of authority at 49 CFR 
1.91, FTA hereby amends Chapter VI of Title 49, Code of Federal 
Regulations, by adding part 670 as set forth below:

PART 670--PUBLIC TRANSPORTATION SAFETY PROGRAM

Subpart A--General Provisions
Sec.
670.1 Purpose and applicability.
670.3 Policy.
670.5 Definitions.
Subpart B--Inspections, Investigations, Audits, Examinations, and 
Testing
670.11 General.
670.13 Request for confidential treatment of records.
Subpart C--Enforcement
670.21 General.
670.23 Use or withholding of funds.
670.25 General directives.
670.27 Special directives.
670.29 Advisories.
Subpart D--National Public Transportation Safety Plan
670.31 Purpose and contents of the National Public Transportation 
Safety Plan.


    Authority: 49 U.S.C. 5329, 49 CFR 1.91.

Subpart A--General Provisions


Sec.  670.1  Purpose and applicability.

    This part carries out the mandate of 49 U.S.C. 5329 to improve the 
safety of public transportation systems. This part establishes 
substantive and procedural rules for FTA's administration of the Public 
Transportation Safety Program. This part applies to recipients of 
Federal financial assistance under 49 U.S.C. chapter 53.


Sec.  670.3  Policy.

    The Federal Transit Administration (FTA) has adopted the principles 
and methods of Safety Management Systems (SMS) as the basis for 
enhancing the

[[Page 53059]]

safety of public transportation in the United States. FTA will follow 
the principles and methods of SMS in its development of rules, 
regulations, policies, guidance, best practices and technical 
assistance administered under the authority of 49 U.S.C. 5329.


Sec.  670.5  Definitions.

    As used in this part:
    Accountable Executive means a single, identifiable individual who 
has ultimate responsibility for carrying out the Public Transportation 
Agency Safety Plan 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.
    Administrator means the Federal Transit Administrator or his or her 
designee.
    Advisory means a notice that informs or warns a recipient of 
hazards or risks to the recipient's public transportation system. An 
advisory may include recommendations for avoiding or mitigating the 
hazards or risks.
    Audit means a review or analysis of records and related materials, 
including, but not limited to, those related to financial accounts.
    Corrective action plan means a plan developed by a recipient that 
describes the actions the recipient will take to minimize, control, 
correct or eliminate risks and hazards, and the schedule for taking 
those actions. Either a State Safety Oversight Agency of FTA may 
require a recipient to develop and carry out a corrective action plan.
    Deputy Administrator means the Federal Transit Deputy Administrator 
or his or her designee.
    Directive means a written communication from FTA to a recipient 
that requires the recipient to take one or more specific actions to 
ensure the safety of the recipient's public transportation system.
    Examination means a process for gathering or analyzing facts or 
information related to the safety of a public transportation system.
    FTA means the Federal Transit Administration.
    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 recipient's public transportation 
system; or damage to the environment.
    Inspection means a physical observation of equipment, facilities, 
rolling stock, operations, or records for the purpose of gathering or 
analyzing facts or information.
    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.
    Pattern or practice means two or more findings by FTA of a 
recipient's violation of the requirements of 49 U.S.C. 5329 or the 
regulations thereunder.
    Recipient means a State or local governmental authority, or any 
other operator of public transportation that receives financial 
assistance under 49 U.S.C. Chapter 53. The term ``recipient'' includes 
State Safety Oversight Agencies.
    Record means any writing, drawing, map, recording, diskette, DVD, 
CD-ROM, tape, film, photograph, or other documentary material by which 
information is preserved. The term ``record'' also includes any such 
documentary material stored electronically.
    Risk means the composite of predicted severity and likelihood of 
the potential effect of a hazard.
    Safety Management System (SMS) means a formal, top-down, 
organization-wide data-driven approach to managing safety risk and 
assuring the effectiveness of a recipient's safety risk mitigations. 
SMS includes systematic procedures, practices and policies for managing 
risks and hazards.
    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 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 659 
or 49 CFR part 674.
    Testing means an assessment of equipment, facilities, rolling stock 
or operations of a recipient's public transportation system.

Subpart B--Inspections, Investigations, Audits, Examinations and 
Testing


Sec.  670.11  General.

    (a) The Administrator may conduct investigations, inspections, 
audits and examinations, and test the equipment, facilities, rolling 
stock and operations of a recipient's public transportation system.
    (b) To the extent practicable, the Administrator will provide 
notice to a recipient prior to initiating any activities carried out 
under the authorities listed in paragraph (a) of this section.
    (c) The Administrator will conduct activities carried out under 
this section at reasonable times and in a reasonable manner, as 
determined by the Administrator.
    (d) In carrying out this section, the Administrator may require the 
production of relevant documents and records, take evidence, issue 
subpoenas and depositions, and prescribe recordkeeping and reporting 
requirements.


 Sec.  670.13  Request for confidential treatment of records.

    (a) The Administrator may grant a recipient's request for 
confidential treatment of records produced under Sec.  670.11, on the 
basis that the records are--
    (1) Exempt from the mandatory disclosure requirements of the 
Freedom of Information Act (5 U.S.C. 552);
    (2) Required to be held in confidence by 18 U.S.C. 1905; or
    (3) Otherwise exempt from public disclosure under Federal or State 
laws.
    (b) A recipient must submit the record that contains the alleged 
confidential information with the request for confidential treatment.
    (c) A recipient's request for confidential treatment must include a 
statement justifying nondisclosure and provide the specific legal basis 
upon which the request for nondisclosure should be granted.
    (d) A recipient's justification statement must indicate whether the 
recipient is requesting confidentiality for the entire record, or 
whether non-confidential information in the record can be reasonably 
segregated from the confidential information. If a recipient is 
requesting confidentiality for only a portion of the record, the 
request must include a copy of the entire record and a second copy of 
the record where the purportedly confidential information has been 
redacted. The Administrator may assume there is no objection to public 
disclosure of the record in its entirety if the requestor does not 
submit a second copy of the record with the confidential information 
redacted at the time that the request is submitted.
    (e) A recipient must mark any record containing any information for 
which confidential treatment is requested as

[[Page 53060]]

follows--``CONFIDENTIAL'' or ``CONTAINS CONFIDENTIAL INFORMATION'' in 
bold letters.
    (f) The Administrator will provide notice to a recipient of his or 
her decision to approve or deny a request, in whole or in part, no less 
than five (5) days prior to the public disclosure of a record by FTA. 
The Administrator will provide an opportunity for a recipient to 
respond to his or her decision prior to the public disclosure of a 
record.

Subpart C--Authorities


Sec.  670. 21  General.

    In addition to actions described in Sec. Sec.  670.23 through 
670.29, in exercising his or her authority under this part, the 
Administrator may--
    (a) Require more frequent oversight of a recipient by a State 
Safety Oversight Agency that has jurisdiction over the recipient;
    (b) Impose requirements for more frequent reporting by a recipient;
    (c) Order a recipient to develop and carry out a corrective action 
plan; and
    (d) Issue restrictions and prohibitions, if through testing, 
inspection, investigation, audit or research carried out under Chapter 
53, the Administrator determines that an unsafe condition or practice, 
or a combination of unsafe conditions and practices, exist such that 
there is a substantial risk of death or personal injury.


Sec.  670.23  Use or withholding of funds.

    (a) Directing the use of funds. The Administrator may require a 
recipient to use Chapter 53 funds to correct safety violations 
identified by the Administrator or a State Safety Oversight Agency 
before such funds are used for any other purpose.
    (b) Withholding of funds. Except as provided under 49 CFR part 674, 
the Administrator may withhold not more than twenty-five (25) percent 
of funds apportioned under 49 U.S.C. 5307 from a recipient when the 
Administrator has evidence that the recipient has engaged in a pattern 
or practice of serious safety violations, or has otherwise refused to 
comply with the Public Transportation Safety Program, as codified at 49 
U.S.C. 5329, or any regulation or directive issued under those laws for 
which the Administrator exercises enforcement authority for safety.
    (c) Notice. The Administrator will issue a notice of violation that 
includes the amount the Administrator proposes to redirect or withhold 
at least ninety (90) days prior to the date from when the funds will be 
redirected or withheld. The notice will contain--
    (1) A statement of the legal authority for its issuance;
    (2) A statement of the regulatory provisions or directives FTA 
believes the recipient has violated;
    (3) A statement of the remedial action sought to correct the 
violation; and
    (4) A statement of facts supporting the proposed remedial action.
    (d) Reply. Within thirty (30) days of service of a notice of 
violation, a recipient may file a written reply with the Administrator. 
Upon receipt of a written request, the Administrator may extend the 
time for filing for good cause shown. The reply must be in writing, and 
signed by the recipient's Accountable Executive or equivalent entity. A 
written reply may include an explanation for the alleged violation, 
provide relevant information or materials in response to the alleged 
violation or in mitigation thereof, or recommend alternative means of 
compliance for consideration by the Administrator.
    (e) Decision. The Administrator will issue a written decision 
within thirty (30) days of his or her receipt of a recipient's reply. 
The Administrator shall consider a recipient's response in determining 
whether to dismiss the notice of violation in whole or in part. If a 
notice of violation is not dismissed, the Administrator may undertake 
any other enforcement action he or she deems appropriate.


Sec.  670.25  General directives.

    (a) General. The Administrator may issue a general directive under 
this part that is applicable to all recipients or a subset of 
recipients for the following reasons--
    (1) The Administrator determines that an unsafe condition or 
practice, or a combination of unsafe conditions and practices, exists 
such that there is a risk of death or personal injury, or damage to 
property or equipment; or
    (2) For any other purpose where the Administrator determines that 
the public interest requires the avoidance or mitigation of a hazard or 
risk.
    (b) Effective date. A general directive is effective upon final 
notice provided by the Administrator under paragraph (e) of this 
section.
    (c) Notice. The Administrator will provide notice of a general 
directive to recipients in the Federal Register. The notice will 
include at minimum--
    (1) A reference to the authority under which the directive is being 
issued;
    (2) A statement of the purpose of the issuance of the directive, 
including a description of the subjects or issues involved and a 
statement of the remedial actions sought; and
    (3) A statement of the time within which written comments must be 
received by FTA.
    (d) Consideration of comments received. The Administrator will 
consider all timely comments received. Late filed comments will be 
considered to the extent practicable.
    (e) Final notice. After consideration of timely comments received, 
the Administrator will publish a notice in the Federal Register that 
includes both a response to comments and a final general directive or a 
statement rescinding, revising, revoking or suspending the directive.


Sec.  670.27  Special directives.

    (a) General. The Deputy Administrator may issue a special directive 
under this part to one or more named recipients for the following 
reasons--
    (1) The Deputy Administrator has reason to believe that a recipient 
is engaging in conduct, or there is evidence of a pattern or practice 
of a recipient's conduct, in violation of the Public Transportation 
Safety Program or any regulation or directive issued under those laws 
for which the Administrator exercises enforcement authority for safety;
    (2) The Deputy Administrator determines that an unsafe condition or 
practice, or a combination of unsafe conditions and practices exists 
such that there is a substantial risk of death or personal injury, or 
damage to property or equipment; or
    (3) For any other purpose where the Deputy Administrator determines 
that the public interest requires the avoidance or mitigation of a 
hazard or risk through immediate compliance.
    (b) Effective date. A special directive is effective upon notice 
provided by the Deputy Administrator under paragraph (c) of this 
section.
    (c) Notice. The Deputy Administrator will provide notice to a 
recipient that is subject to a special directive. The Deputy 
Administrator may initially provide notice through telephonic or 
electronic communication; however, written notice will be served by 
personal service or by U.S. mail following telephonic or electronic 
communication. Notice will include the following information, at 
minimum--
    (1) The name of the recipient or recipients to which the directive 
applies;
    (2) A reference to the authority under which the directive is being 
issued; and
    (3) A statement of the purpose of the issuance of the directive, 
including a description of the subjects or issues involved, a statement 
of facts upon

[[Page 53061]]

which the notice is being issued, a statement of the remedial actions 
being sought, and the date by which such remedial actions must be 
taken.
    (d) Petition for reconsideration. Within thirty (30) days of 
service of a notice issued under paragraph (c) of this section, a 
recipient may file a petition for reconsideration with the 
Administrator. Unless explicitly stayed or modified by the 
Administrator, a special directive will remain in effect and must be 
observed pending review of a petition for reconsideration. Any such 
petition:
    (1) Must be in writing and signed by a recipient's Accountable 
Executive or equivalent entity;
    (2) Must include a brief explanation of why the recipient believes 
the special directive should not apply to it or why compliance with the 
special directive is not possible, is not practicable, is unreasonable, 
or is not in the public interest; and
    (3) May include relevant information regarding the factual basis 
upon which the special directive was issued, information in response to 
any alleged violation or in mitigation thereof, recommend alternative 
means of compliance for consideration, and any other information deemed 
appropriate by the recipient.
    (e) Request for extension. Upon written request, the Administrator 
may extend the time for filing a request for reconsideration for good 
cause shown.
    (f) Filing a petition for reconsideration. A petition must be 
submitted to the Office of the Administrator, Federal Transit 
Administration, using one of the following methods--
    (1) Email to FTA, sent to an email address provided in the notice 
of special directive;
    (2) Facsimile to FTA at 202-366-9854; or
    (3) Mail to FTA at: FTA, Office of the Administrator, 1200 New 
Jersey Ave. SE., Washington, DC 20590.
    (g) Processing of petitions for reconsideration--(1) General. Each 
petition received under this section will be reviewed and disposed of 
by the Administrator no later than ninety days (90) after receipt of 
the petition. No hearing, argument or other proceeding will be held 
directly on a petition before its disposition under this section.
    (2) Grants. If the Administrator determines the petition contains 
adequate justification, he or she may grant the petition, in whole or 
in part.
    (3) Denials. If the Administrator determines the petition does not 
justify modifying, rescinding or revoking the directive, in whole or in 
part, he or she may deny the petition.
    (4) Notification. The Administrator will issue notification to a 
recipient of his or her decision.
    (h) Judicial review. A recipient may seek judicial review in an 
appropriate United States District Court after a final action of FTA 
under this section, as provided in 5 U.S.C. 701-706.


Sec.  670.29  Advisories.

    In any instance in which the Administrator determines there are 
hazards or risks to public transportation, the Administrator may issue 
an advisory which recommends corrective actions, inspections, 
conditions, limitations or other actions to avoid or mitigate any 
hazards or risks. The Administrator will issue notice to recipients of 
an advisory in the Federal Register.

Subpart D--National Public Transportation Safety Plan


Sec.  670.31  Purpose and contents of the National Public 
Transportation Safety Plan.

    Periodically, FTA will issue a National Public Transportation 
Safety Plan to improve the safety of all public transportation systems 
that receive funding under 49 U.S.C. Chapter 53. The National Public 
Transportation Safety Plan will include the following--
    (a) Safety performance criteria for all modes of public 
transportation, established through public notice and comment;
    (b) The definition of state of good repair;
    (c) Minimum safety performance standards for vehicles in revenue 
operations, established through public notice and comment;
    (d) Minimum performance standards for public transportation 
operations established through public notice and comment;
    (e) The Public Transportation Safety Certification Training 
Program;
    (f) Safety advisories, directives and reports;
    (g) Best practices, technical assistance, templates and other 
tools;
    (h) Research, reports, data and information on hazard 
identification and risk management in public transportation, and 
guidance regarding the prevention of accidents and incidents in public 
transportation; and
    (i) Any other content as determined by FTA.

[FR Doc. 2016-18920 Filed 8-10-16; 8:45 am]
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