[Federal Register Volume 83, Number 139 (Thursday, July 19, 2018)]
[Rules and Regulations]
[Pages 34418-34468]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-15167]



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Vol. 83

Thursday,

No. 139

July 19, 2018

Part III





Department of Transportation





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Federal Transit Administration





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49 CFR Part 673





Public Transportation Agency Safety Plan; Final Rule

Federal Register / Vol. 83 , No. 139 / Thursday, July 19, 2018 / 
Rules and Regulations

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DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

49 CFR Part 673

[Docket No. FTA-2015-0021]
RIN 2132-AB23


Public Transportation Agency Safety Plan

AGENCY: Federal Transit Administration (FTA), DOT.

ACTION: Final rule.

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SUMMARY: The Federal Transit Administration (FTA) is publishing a final 
rule for Public Transportation Agency Safety Plans as authorized by the 
Moving Ahead for Progress in the 21st Century Act (MAP-21). This final 
rule requires States and certain operators of public transportation 
systems that receive Federal financial assistance under 49 U.S.C. 
Chapter 53 to develop Public Transportation Agency Safety Plans based 
on the Safety Management System approach. Operators of public 
transportation systems will be required to implement the safety plans. 
The development and implementation of safety plans will help ensure 
that public transportation systems are safe nationwide.

DATES: The effective date of this rule is July 19, 2019.
    FTA's Office of Transit Safety and Oversight (TSO) will host a 
series of webinars to discuss the requirements of the Public 
Transportation Agency Safety Plan (PTASP) final rule. The first two 
webinars will be held at 2 p.m. on Wednesday, July 25, 2018 and 
Tuesday, July 31, 2018.

ADDRESSES: To register for webinars and for information about future 
webinars, please visit https://www.transit.dot.gov/about/events.
    FTA is committed to providing equal access for all webinar 
participants. If you need alternative formats, options, or services, 
contact <a href="/cdn-cgi/l/email-protection#084e5c49254366677f646d6c6f6d486c677c266f677e"><span class="__cf_email__" data-cfemail="fabcaebbd7b194958d969f9e9d9fba9e958ed49d958c">[email protected]</span></a> at least three business days prior to the 
event. If you have any questions, please email <a href="/cdn-cgi/l/email-protection#f0b6a4b1ddbb9e9f879c95949795b0949f84de979f86"><span class="__cf_email__" data-cfemail="aee8faef83e5c0c1d9c2cbcac9cbeecac1da80c9c1d8">[email protected]</span></a>.

FOR FURTHER INFORMATION CONTACT: For general information, contact 
<a href="/cdn-cgi/l/email-protection#6a3a3e2b393a353b2b2a0e051e440d051c"><span class="__cf_email__" data-cfemail="e4b4b0a5b7b4bbb5a5a4808b90ca838b92">[email protected]</span></a>. For program matters, contact Adrianne Malasky, Office 
of Transit Safety and Oversight, (202) 366-1783 or 
<a href="/cdn-cgi/l/email-protection#1d5c796f747c73737833507c717c6e76645d797269337a726b"><span class="__cf_email__" data-cfemail="92d3f6e0fbf3fcfcf7bcdff3fef3e1f9ebd2f6fde6bcf5fde4">[email protected]</span></a>. For legal matters, contact Michael Culotta, 
Office of Chief Counsel, (212) 668-2170 or <a href="/cdn-cgi/l/email-protection#175a7e747f76727b3954627b786363765773786339707861"><span class="__cf_email__" data-cfemail="b7faded4dfd6d2db99f4c2dbd8c3c3d6f7d3d8c399d0d8c1">[email protected]</span></a>. 
Office hours are from 8:30 a.m. to 5:00 p.m., Monday through Friday, 
except Federal holidays.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary
    A. Purpose of Regulatory Action
    B. Legal Authority
    C. Summary of Major Provisions
    1. Summary of the Final Rule
    2. Summary of Public Comments
    3. Summary of the Major Changes to the Rule
    D. Costs and Benefits
II. Background
III. Notice of Proposed Rulemaking and Response to Relevant Comments
    A. Scope and Applicability of Public Transportation Agency 
Safety Plans
    1. Section 5310, Section 5311, Small Section 5307, and Tribal 
Operators
    2. Commuter Rail and Passenger Ferry Service
    3. Contracted Service
    B. Definitions
    1. Accident
    2. Incident
    3. Occurrence
    4. Serious Injury
    5. Accountable Executive
    6. Chief Safety Officer
    7. Operator of a Public Transportation System
    8. Rail Transit Agency
    9. Performance Target, Safety Performance Target, and 
Performance Criteria
    10. Small Public Transportation Provider
    11. Requests for New Definitions
    C. General Requirements
    1. Role of the Accountable Executive
    2. Approval of a Public Transportation Agency Safety Plan
    3. Documentation of SMS Processes and Activities
    4. Safety Performance Targets
    5. Future Requirements in FTA's Public Transportation Safety 
Program and National Public Transportation Safety Plan
    6. Process and Timeline for Annual Review and Update
    7. Emergency Preparedness and Response Plans
    8. Multiple Modes of Transit Service
    D. State and Transit Agency Roles
    1. Large Transit Agencies
    2. Small Public Transportation Providers, Section 5311 
Providers, and Section 5310 Providers
    2.1. States Must Draft and Certify Safety Plans on Behalf of 
Small Public Transportation Providers
    2.1.1. Option for State-Wide or Agency-Specific Safety Plans
    2.1.2. Drafting and Certifying Safety Plans for Small Section 
5307 Providers
    2.2. Other Comments
    3. Small Transit Providers May Draft and Certify Their Own 
Safety Plans
    4. Direct and Designated Recipients Drafting and Certifying 
Safety Plans on Behalf of Smaller Transit Providers
    E. Existing System Safety Program Plan Is Effective for One Year
    1. General Comments
    2. One-Year Compliance Timeframe
    F. Certification of Safety Plans
    G. SSOA Review and Approval of PTASPs for Rail Transit Systems
    H. Safety Performance Targets and Performance-Based Planning
    I. Safety Management Systems
    1. Safety Management Policy: General Comments
    1.1. Safety Management Policy Statement
    1.2. Employee Reporting Program
    1.3. Safety Accountabilities and Responsibilities
    2. Safety Risk Management
    2.1. Safety Risk Management: General Comments
    2.2. Safety Hazard Identification and Analysis
    3. Safety Assurance
    3.1. Safety Assurance: Safety Performance Monitoring and 
Measurement
    3.2. Safety Assurance: Management of Change
    3.3. Safety Assurance: Continuous Improvement
    4. Safety Promotion
    5. Scalability of SMS
    6. SMS and Safety Culture
    J. Safety Plan Documentation and Recordkeeping
    1. Safety Plan Documentation
    2. Safety Plan Records
    3. Other Comments on Documentation and Recordkeeping
    4. Database Systems
    5. Staffing and Resources as a Result of Documentation and 
Recordkeeping
    K. Funding
    L. Staffing
    M. Enforcement and Oversight
    1. Triennial Reviews and State Management Reviews
    2. State Oversight
    3. Other Comments
    N. NTD Reporting
    O. Security
    P. SSPP-PTASP Crosswalk
    Q. Safety Performance Measures
    R. Technical Assistance and Guidance
    S. Coordination With Other Entities
    T. Nexus Between the PTASP Rule and Other FTA Requirements
    U. Americans With Disabilities Act Issues
    V. Other Comments on the Rule
    W. Regulatory Impact Analyses
    1. Costs
    2. Benefits
    3. Regulatory Flexibility Act
    X. Tribal Issues
    1. Applicability of the Rule to Tribes
    2. The State's Role in Tribal Safety Plans
    3. Financial Impact on Tribes
    4. Tribal Consultation
IV. Section-by-Section Analysis
V. Regulatory Analyses and Notices

I. Executive Summary

A. Purpose of Regulatory Action

    The public transportation industry remains among the safest surface 
transportation modes in terms of total reported safety events, 
fatalities, and injuries.\1\ Nonetheless, given public

[[Page 34419]]

transportation service complexities, the condition of transit equipment 
and facilities, turnover in the transit workforce, and the quality of 
policies, procedures, and training, the public transportation industry 
remains vulnerable to catastrophic accidents.
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    \1\ See United States Department of Transportation, Bureau of 
Transportation Statistics, ``Table 2-1: Transportation Fatalities by 
Mode 1960-2016,'' at https://www.bts.gov/archive/publications/national_transportation_statistics/table_02_01; and ``Table 1-40: 
U.S. Passenger Miles (Millions) 1960-2015,'' at https://www.bts.gov/archive/publications/national_transportation_statistics/table_01_40.
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    This rule outlines requirements for Public Transportation Agency 
Safety Plans that would carry out explicit statutory mandates in the 
Moving Ahead for Progress in the 21st Century Act (Pub. L. 112-141; 
July 6, 2012) (MAP-21), which was reauthorized by the Fixing America's 
Surface Transportation Act (Pub. L. 114-94; December 4, 2015) (FAST 
Act) and codified at 49 U.S.C. 5329(d), to strengthen the safety of 
public transportation systems that receive Federal financial assistance 
under 49 U.S.C. Chapter 53. This rule requires the adoption of Safety 
Management Systems (SMS) principles and methods; the development, 
certification, implementation, and update of Public Transportation 
Agency Safety Plans; and the coordination of Public Transportation 
Agency Safety Plan elements with other FTA programs and rules, as 
specified in 49 U.S.C. 5303, 5304, and 5329.

B. Legal Authority

    In Section 20021 of MAP-21, which is codified at 49 U.S.C. 5329, 
Congress directed FTA to establish a comprehensive Public 
Transportation Safety Program, one element of which is the requirement 
for Public Transportation Agency Safety Plans. Pursuant to 49 U.S.C. 
5329(d), FTA must issue a final rule requiring operators of public 
transportation systems that receive financial assistance under Chapter 
53 to develop and certify Public Transportation Agency Safety Plans.

C. Summary of Major Provisions

1. Summary of the Final Rule
    This rule adds a new part 673, ``Public Transportation Agency 
Safety Plans,'' to Title 49 of the Code of Federal Regulations. The 
rule implements the requirements of 49 U.S.C. 5329(d).
    One year after the effective date of this rule, each State, local 
governmental authority, and any other operator of a public 
transportation system that receives Federal financial assistance under 
49 U.S.C. Chapter 53, must certify that it has established a 
comprehensive Public Transportation Agency Safety Plan (PTASP). 49 
U.S.C. 5329(d)(1). At this time, the rule does not apply to an operator 
of a public transportation system that only receives Federal financial 
assistance under 49 U.S.C. 5310 (Section 5310), 49 U.S.C. 5311 (Section 
5311), or both 49 U.S.C. 5310 and 49 U.S.C. 5311. Large transit 
providers must develop their own plans, have the plans approved by 
their Boards of Directors (or equivalent authorities), and certify to 
FTA that those plans are in place and comply with this part. Small 
public transportation providers that receive Urbanized Area Formula 
Program under 49 U.S.C. 5307 may have their plans drafted or certified 
by the State in which they operate. A small public transportation 
provider may opt to draft and certify its own plan.
    At a minimum, and consistent with 49 U.S.C. 5329(d), each Public 
Transportation Agency Safety Plan must:
    <bullet> Include the documented processes and procedures for the 
transit agency's Safety Management System, which consists of four main 
elements: (1) Safety Management Policy, (2) Safety Risk Management, (3) 
Safety Assurance, and (4) Safety Promotion, as discussed in more detail 
below (49 CFR 673.11(a)(2));
    <bullet> Include performance targets based on the safety 
performance criteria established under the National Public 
Transportation Safety Plan (49 CFR 673.11(a)(3));
    <bullet> Address all applicable requirements and standards as set 
forth in FTA's Public Transportation Safety Program and National Public 
Transportation Safety Plan (49 CFR 673.11(a)(4)); and
    <bullet> Establish a process and timeline for conducting an annual 
review and update of the Public Transportation Agency Safety Plan (49 
CFR 673.11(a)(5)).
    Each rail transit agency must include in its Public Transportation 
Agency Safety Plan an emergency preparedness and response plan, as 
historically required by FTA under the former regulatory provisions of 
the State Safety Oversight rule at 49 CFR part 659 (49 CFR 
673.11(a)(6)).
    A transit agency may develop one Public Transportation Agency 
Safety Plan for all modes of its service, or it may develop a Public 
Transportation Agency Safety Plan for each mode of service that is not 
subject to safety regulation by another Federal entity. 49 CFR 
673.11(b). A transit agency must maintain records associated with its 
Public Transportation Agency Safety Plan. 49 CFR 673 subpart D. Any 
rail fixed guideway public transportation system that had a System 
Safety Program Plan (SSPP) compliant with the former regulatory 
provisions of 49 CFR part 659 as of October 1, 2012, may keep that plan 
in effect until one year after the effective date of this rule. 49 CFR 
673.11(e). A transit agency that operates passenger ferry service 
regulated by the United States Coast Guard (USCG) or rail fixed 
guideway public transportation service regulated by the Federal 
Railroad Administration (FRA) is not required to develop a Public 
Transportation Agency Safety Plan for those modes of service. 49 CFR 
673.11(f).
    States and transit agencies must make their safety performance 
targets available to States and Metropolitan Planning Organizations 
(MPO) to aid in the planning process, and to the maximum extent 
practicable, States and transit agencies must coordinate with States 
and MPOs in the selection of State and MPO safety performance targets. 
49 CFR 673.15.
    On an annual basis, transit agencies and States must certify 
compliance with this rule. 49 CFR 673.13.
2. Summary of Public Comments
    On February 5, 2016, FTA issued a Notice of Proposed Rulemaking 
(NPRM) for Public Transportation Agency Safety Plans. 81 FR 6344 
(https://www.gpo.gov/fdsys/pkg/FR-2016-02-05/pdf/2016-02017.pdf). The 
public comment period closed on April 5, 2016. FTA received 
approximately 647 comments from approximately 77 entities, including 
States, transit agencies, trade associations, and individuals.
    The majority of the comments addressed the administration of the 
rule. Over 100 comments focused on definitions, with the vast majority 
of those commenters requesting FTA to align terms and definitions with 
the terms and definitions that FTA recently finalized in other rules, 
such as the State Safety Oversight rule at 49 CFR part 674 and the 
Transit Asset Management rule at 49 CFR part 625. FTA received nearly 
300 comments on issues relating to (1) the effective date and 
compliance date of the rule; (2) the drafting and certification of 
safety plans on behalf of recipients of FTA's Enhanced Mobility of 
Seniors and Individuals with Disabilities Program at 49 U.S.C. 5310 and 
other smaller recipients; (3) clarification of FTA's oversight process; 
(4) the need for FTA's technical assistance; (5) documentation and 
recordkeeping; and (6) the applicability of the rule.
    FTA received over 80 comments on SMS. Many of the commenters 
expressed support for SMS, particularly given its flexibility and 
scalability.

[[Page 34420]]

Some commenters requested clarification of the flexibility and 
scalability of SMS, and to that end, they requested that FTA develop 
and issue a safety plan template. Other commenters requested 
clarification regarding specific provisions of SMS. In the NPRM, FTA 
sought comments on alternative regulatory frameworks to SMS, and in 
response to this request, FTA received no comments.
    Detailed comment summaries and responses are below.
3. Summary of the Major Changes to the Rule
    In response to the public comments, FTA made a number of changes to 
the rule. Below is a summary of those changes, which are discussed in 
more detail in the sections that follow.
Section 673.1 Applicability
    In the NPRM, FTA proposed to apply the rule to every ``State, local 
governmental authority, and any other operator of a public 
transportation system that receives Federal financial assistance under 
49 U.S.C. Chapter 53.'' FTA specifically asked the public whether the 
rule should apply to recipients and subrecipients of funds under FTA's 
Enhanced Mobility of Seniors and Individuals with Disabilities Program 
at 49 U.S.C. 5310 (Section 5310). FTA also specifically asked the 
public for alternative regulatory frameworks that satisfy the statutory 
requirements of 49 U.S.C. 5329 and are tailored to fit the needs of 
smaller operators of public transportation.
    FTA received numerous comments in response to these questions and 
the regulatory proposal. Several commenters suggested that FTA exempt 
Section 5310 recipients from the rule because they are smaller non-
traditional transit providers. Several commenters suggested that FTA 
adopt a more streamlined and simplified approach that is more tailored 
for smaller operators. At least one commenter suggested that FTA exempt 
subrecipients of Section 5311 Rural Area Formula Program funds from the 
rule.
    In light of these public comments and the need for further 
evaluation, FTA is deferring regulatory action at this time on 
operators of public transportation systems that only receive Section 
5310 and/or Section 5311 funds. This deferral will provide FTA time to 
further evaluate information and safety data related to these systems 
to determine the appropriate level of regulatory burden necessary to 
address the safety risk presented by these systems. Thus, this final 
rule does not address operators of public transportation systems that 
only receive Federal financial assistance under 49 U.S.C. 5310, 49 
U.S.C. 5311, or both 49 U.S.C. 5310 and 49 U.S.C. 5311.
Section 673.5 Definitions
    FTA updated the definitions of the terms ``Accountable Executive'' 
and ``Transit Asset Management Plan,'' and FTA changed the term 
``Performance Criteria'' to ``Performance Measure,'' in an effort to 
align these terms and definitions with those in FTA's Transit Asset 
Management rule at 49 CFR part 625, which was published on July 26, 
2016. FTA updated the definition of the term ``Safety Risk 
Management,'' added the term ``Rail Fixed Guideway Public 
Transportation System,'' and changed the term ``Safety Risk'' to 
``Risk'' in an effort to align these terms and definitions with those 
in FTA's State Safety Oversight rule at 49 CFR part 674, which was 
published on March 16, 2016. FTA clarified in its definition of 
``Safety Management System Executive'' that it means a ``Chief'' Safety 
Officer or an equivalent. FTA changed the term ``Safety Risk 
Evaluation'' to ``Safety Risk Assessment'' to add clarity to the final 
rule.
    In the NPRM, FTA proposed to define ``operator of a public 
transportation system'' to exclude operators that ``provide service 
that is closed to the general public and only available for a 
particular clientele.'' This language was intended to narrow the type 
of Section 5310 recipients that would be subject to the rule. In light 
of FTA's decision to defer action on the applicability of the rule to 
all Section 5310 recipients and subrecipients--including operators that 
``provide service that is closed to the general public and only 
available for a particular clientele''--FTA is removing this language 
from the definition of ``operator of a public transportation system.''
    In the NPRM, FTA proposed to define ``Small Public Transportation 
Provider'' to mean ``a recipient or subrecipient of Urbanized Area 
Formula Program funds under 49 U.S.C. 5307 that has one hundred (100) 
or fewer vehicles in revenue service and does not operate a rail fixed 
guideway public transportation system.'' In response to public comments 
and for consistency with the Transit Asset Management Rule (81 FR 
48889), FTA changed the definition of the term ``Small Public 
Transportation Provider'' to mean 100 or fewer vehicles in ``peak'' 
revenue service, as opposed to revenue service generally.
Section 673.11(a)(6) General Requirements: Emergency Preparedness and 
Response Plans
    Based on public comments, FTA will provide rail transit agencies 
with the option to either include an emergency preparedness and 
response plan as a section of their Public Transportation Agency Safety 
Plan, or they may incorporate an existing emergency preparedness and 
response plan into their Public Transportation Agency Safety Plan by 
reference.
Section 673.11(d) General Requirements; Sec.  673.13 Certification of 
Compliance: The Drafting and Certification of Public Transportation 
Agency Safety Plans on Behalf of Section 5310 Recipients and 
Subrecipients
    In the NPRM, FTA proposed to require States to draft and certify 
safety plans on behalf of certain recipients and subrecipients of funds 
under Section 5310 and the Section 5311 Formula Grants for Rural Areas 
Program. In light of the public comments from these recipients 
requesting exemptions from the rule and a more streamlined and tailored 
regulatory approach for smaller operators, and given FTA has decided to 
defer action on applicability of the rule to Section 5310 and Section 
5311 recipients and subrecipients, FTA does not need to require States 
to draft and certify safety plans for those recipients and 
subrecipients at this time.
Section 673.23(a) Safety Management Policy
    In the NPRM, FTA proposed to require transit agencies to develop a 
written Safety Management Policy, which would include safety 
performance targets. FTA received numerous comments noting that FTA 
also was proposing to require transit agencies to set safety 
performance targets in the General Requirements section of the rule, so 
the requirement in the Safety Management Policy section appeared 
redundant. FTA agrees, and to eliminate any redundancies, FTA deleted 
that requirement from the Safety Management Policy section of the rule.
Section 673.25 Safety Risk Management
    In response to comments, FTA revised its Safety Risk Management 
requirements to add clarity to the safety hazard identification, safety 
risk assessment, and safety risk mitigation processes in the final 
rule.
Section 673.27 Safety Assurance
    In the NPRM, FTA proposed to require all transit agencies to 
develop

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and implement a comprehensive Safety Assurance process. FTA proposed to 
require all transit agencies to develop and implement processes for (1) 
safety performance monitoring and measurement, (2) management of 
change, and (3) continuous improvement.
    FTA received comments seeking clarity on one of the requirements 
related to safety performance monitoring and measurement, specifically, 
the requirement for each transit agency to ``[m]onitor its operations 
to identify hazards not identified through the Safety Risk Management 
process established in Sec.  673.25 of this subpart.'' 49 CFR 
673.27(b)(2) (as proposed in the NPRM). Some commenters suggested that 
this requirement appeared redundant and duplicative of each of the 
requirements under Safety Risk Management. FTA agrees with these 
commenters, and to add clarity, reduce redundancy, and lower burdens, 
FTA eliminated this requirement from the final rule.
    More significantly, FTA received numerous comments requesting a 
reduction in the regulatory requirements for small public 
transportation providers. Given the limited administrative and 
financial resources available to small public transportation providers, 
FTA believes that a reduction in their regulatory burdens is 
appropriate. To that end, and to address the concerns expressed by 
commenters, FTA eliminated significant Safety Assurance requirements 
for all small public transportation providers. In the final rule, small 
public transportation providers only need to develop processes for 
safety performance monitoring and measurement. Small public 
transportation providers are not required to develop and implement 
processes for management of change and continuous improvement. FTA 
believes that these changes in the final rule will reduce their burdens 
significantly. Rail fixed guideway public transportation systems and 
recipients and subrecipients of Federal financial assistance under 49 
U.S.C. Chapter 53 that have more than one hundred vehicles in peak 
revenue service must develop and implement Safety Assurance processes 
that include all of the regulatory requirements under 49 CFR 673.27, 
specifically, processes for safety performance monitoring and 
measurement, management of change, and continuous improvement.
Section 673.29(a) Safety Promotion
    In the NPRM, FTA proposed to require transit agencies to establish 
comprehensive safety training programs for staff and contractors 
directly responsible for ``the management of'' safety. FTA received 
several comments expressing confusion over this requirement and the 
requirements of FTA's proposed Safety Certification Training Program 
Rule, which applies to staff and contractors who responsible for safety 
``oversight'' on rail transit systems. In an effort to respond to the 
commenters and to eliminate confusion, FTA struck the language ``the 
management of'' from the rule, so it now requires safety training for 
staff and contractors who are ``directly responsible for safety.''
Section 673.31 Safety Plan Documentation
    In the NPRM, FTA proposed to require transit agencies to maintain 
their safety plan documents for a minimum of three years. To add 
clarity in the final rule, FTA is requiring transit agencies to 
maintain safety plan documents for three years ``after they are 
created.''
    Also, in the NPRM, FTA proposed to require a number of additional 
records related to a Public Transportation Agency Safety Plan. 
Specifically, FTA proposed to require transit agencies to maintain 
records related to (1) safety risk mitigations, (2) results of safety 
performance assessments, and (3) employee safety training. FTA received 
numerous comments requesting reduced recordkeeping burdens. FTA also 
received numerous comments, in general, from smaller transit operators 
requesting reduced regulatory burdens.
    Upon review of these comments, FTA has eliminated the recordkeeping 
requirements in proposed 49 CFR 673.33 in their entirety. FTA believes 
that the records developed and maintained in accordance with 49 CFR 
673.31 are sufficient to ensure that transit agencies are complying 
with the requirements of the statute and this final rule. FTA believes 
that this change in the final rule significantly will reduce the 
administrative, financial, and regulatory burdens on all transit 
operators.

D. Costs and Benefits

    As discussed in greater detail below, FTA was able to estimate some 
but not all of the rule's costs. FTA was able to estimate the costs for 
transit agencies to develop and implement Public Transportation Agency 
Safety Plans, which are approximately $41 million in the first year, 
and $30 million in each subsequent year, with annualized costs of $31 
million discounted at 7 percent. These costs result from developing and 
certifying safety plans, documenting SMS processes and procedures, 
implementing SMS, and maintaining records. FTA was not able to estimate 
the costs of actions that transit agencies would be required to take to 
mitigate risk as a result of implementing this rule, such as vehicle 
modifications, additional training, technology investments, or changes 
to operating procedures and practices. It is not possible for FTA to 
anticipate the strategies and actions agencies may adopt to address 
safety risks, or the time period over which these actions would occur.
    FTA was unable to quantify the rule's benefits. To estimate safety 
benefits, one would need information regarding the causes of safety 
events and the factors that may cause future events. This information 
is generally unavailable in the public transportation sector, given the 
infrequency and diversity of the type of safety events that occur. In 
addition, one would need information about the safety problems that 
agencies are likely to find through implementation of their safety 
plans and the actions agencies are likely to take to address those 
problems. Instead of quantifying benefits, FTA estimated the potential 
safety benefits. The potential safety benefits are an estimate of the 
cost of all bus and rail safety events over a future 20-year period. 
The estimate is an extrapolation of the total cost of bus and rail 
events that occurred from 2010 to 2016.
    Table 1 below shows the summary of the Costs and the Potential 
Benefits. The benefits of the rule primarily will result from 
mitigating actions, which largely are not accounted for in this 
analysis. FTA has not estimated the benefits of implementing the rule 
without mitigating actions, but expects they are unlikely to be large. 
Estimated costs for agencies' safety plans include certain activities 
that could yield safety improvements, such as improved communication, 
identification of hazards, and greater employee awareness, as well as 
increased accountability at the higher echelons of the organization. It 
is plausible that these activities alone could produce accident 
reductions that surpass the cost of developing the plan, though even 
greater reductions could be achieved in concert with other mitigating 
actions.

[[Page 34422]]



Table 1--Summary of the Costs and the Potential Benefits if Additional Unquantified Mitigation Investments Occur
                                                 [2016 Dollars]
----------------------------------------------------------------------------------------------------------------
                                                                  Current dollar   7% Discounted   3% Discounted
                                                                       value           value           value
----------------------------------------------------------------------------------------------------------------
Qualitative Benefits............................................  <bullet> Reduced bus and rail safety incidents
                                                                  with mitigation actions.
                                                                  <bullet> Reduced delays in operations.
----------------------------------------------------------------------------------------------------------------
Estimated Costs (20-Year Estimate)..............................    $602,485,710    $323,732,747    $450,749,898
----------------------------------------------------------------------------------------------------------------
Unquantified Costs..............................................  <bullet> Investments associated with
                                                                  mitigating safety risks (such as additional
                                                                  training, vehicle modification, operational
                                                                  changes, maintenance, and information
                                                                  dissemination).
----------------------------------------------------------------------------------------------------------------
Estimated Cost (Annualized).....................................  ..............      30,558,081      30,297,473
----------------------------------------------------------------------------------------------------------------

II. Background

    On July 6, 2012, the President signed into law MAP-21 (Pub. L. 112-
141). MAP-21 authorized a number of fundamental changes to the Federal 
transit programs at 49 U.S.C. Chapter 53. This rule addresses the 
Public Transportation Agency Safety Plan within the Public 
Transportation Safety Program authorized under 49 U.S.C. 5329. This 
authority was reauthorized when the President signed into law the FAST 
Act on December 4, 2015.
    The Public Transportation Safety Program consists of several key 
elements: The National Public Transportation Safety Plan, authorized by 
49 U.S.C. 5329(b); the Public Transportation Safety Certification 
Training Program, authorized by 49 U.S.C. 5329(c); the Public 
Transportation Agency Safety Plans, authorized by 49 U.S.C. 5329(d); 
and the State Safety Oversight Program, authorized by 49 U.S.C. 
5329(e). FTA has issued rules and guidance, and it will continue to 
issue rules and guidance, to carry out all of these plans and programs 
under the rulemaking authority of 49 U.S.C. 5329 and 5334(a)(11).
    On October 3, 2013, FTA issued an Advance Notice of Proposed 
Rulemaking (ANPRM) for Public Transportation Agency Safety Plans, the 
National Public Transportation Safety Plan, the Safety Certification 
Training Program, and a new Transit Asset Management System. 78 FR 
61251 (http://www.gpo.gov/fdsys/pkg/FR-2013-10-03/pdf/2013-23921.pdf). 
Through the ANPRM, FTA sought comments on 123 questions related to the 
implementation of the public transportation safety program and transit 
asset management; 42 of the 123 questions specifically were related to 
Public Transportation Agency Safety Plans. The public comment period 
for the ANPRM closed on January 2, 2014. In response to the ANPRM, FTA 
received comments from 167 entities, including States, transit 
agencies, trade associations, and individuals.
    Following a comprehensive review of the comments, FTA issued 
several NPRMs for safety and transit asset management. In particular, 
FTA issued the NPRM for Public Transportation Agency Safety Plans on 
February 5, 2016. In this NPRM, FTA addressed comments related to the 
42 questions in the ANPRM on Public Transportation Agency Safety Plans, 
specifically, question numbers 8-10, 17-31, 33-44, 47, 107-110, 112, 
and 116-121. Through the NPRM, FTA proposed to create a new part 673 in 
Title 49 of the Code of Federal Regulations, which would require each 
operator of a public transportation system to develop and implement a 
Public Transportation Agency Safety Plan. FTA proposed specific 
requirements for these safety plans in accordance with 49 U.S.C. 
5329(d), including the following minimum requirements:
    <bullet> An approval by the transit agency's board of directors, or 
an equivalent entity, and a signature from the transit agency's 
Accountable Executive;
    <bullet> Documented processes and procedures for an SMS, which 
would include a Safety Management Policy, a process for Safety Risk 
Management, a process for Safety Assurance, and Safety Promotion;
    <bullet> Performance targets based on the safety performance 
measures set out in the National Public Transportation Safety Plan;
    <bullet> Compliance with FTA's Public Transportation Agency Safety 
Plan and FTA's Public Transportation Safety Program; and
    <bullet> A process and timeline for conducting an annual review and 
update of the plan. In addition, rail transit agencies would be 
required to include an emergency preparedness and response plan in 
their Public Transportation Agency Safety Plans.
    In light of the public interest in this rulemaking, and in an 
effort to provide guidance on the proposal and to solicit well-informed 
comments, FTA conducted numerous public outreach sessions and a webinar 
series related to the NPRM. Specifically, on February 12, 2016, FTA 
conducted public outreach for tribes and hosted a Tribal Technical 
Assistance Workshop wherein FTA presented its proposed rule and 
responded to technical questions from tribes. FTA subsequently 
delivered the same presentation during a webinar series open to all 
members of the public on February 24, March 1, March 2, and March 3. On 
March 7, FTA delivered the same presentation at an outreach session 
hosted by the National Rural Transit Assistance Program, which also was 
open to all members of the public. During each of these public outreach 
sessions and the public webinar series, FTA received and responded to 
numerous technical questions regarding the NPRM. FTA recorded the 
presentations, including the question and answer sessions, and made 
available the following documents on the public docket for this 
rulemaking (Docket FTA-2015-0021): (1) FTA's PowerPoint Presentation 
from the public outreach sessions and public webinar series (https://www.regulations.gov/document?D=FTA-2015-0021-0012); (2) a written 
transcript of FTA's public webinar of March 1, 2016 (https://www.regulations.gov/document?D=FTA-2015-0021-0010); (3) a consolidated 
list of every Question and FTA Answer from the public outreach sessions 
and public webinar series (https://www.regulations.gov/

[[Page 34423]]

document?D=FTA-2015-0021-0041); and (4) the results of polling 
questions from FTA's public outreach sessions (https://www.regulations.gov/document?D=FTA-2015-0021-0011). FTA also uploaded 
onto YouTube an audiovisual recording of its webinar from March 1, 
2016. The video is available at the following link: https://www.youtube.com/watch?v=FBj5HRatwGA&feature=youtu.be.

III. Notice of Proposed Rulemaking and Response to Relevant Comments

    As stated above, FTA issued an NPRM for Public Transportation 
Agency Safety Plans on February 5, 2016. 81 FR 6344 (https://www.gpo.gov/fdsys/pkg/FR-2016-02-05/pdf/2016-02017.pdf). The public 
comment period for the NPRM subsequently closed on April 5, 2016. FTA 
received approximately 647 comments from approximately 77 entities, 
including States, transit agencies, trade associations, and 
individuals. FTA reviewed all of the comments and took them into 
consideration when developing today's final rule. Some comments were 
outside the scope of this rulemaking and FTA did not respond to 
comments that were outside the scope.
    FTA received a number of comments related to the definitions of 
terms that are defined in other safety rulemakings. For example, FTA 
received comments on the terms, ``Accident,'' ``Incident,'' and 
``Occurrence,'' which FTA defined in the NPRM to provide clarity 
regarding the types of safety ``Events'' that a transit agency should 
investigate, and these terms are defined in the State Safety Oversight 
(SSO) rulemaking. Given that the Public Transportation Agency Safety 
Plan rule has a more inclusive universe of stakeholders than the SSO 
rule, FTA is including responses to the majority of the comments that 
it received related to these and other definitions included in other 
safety rules, but in this final rule, FTA does not respond to comments 
related to reporting thresholds and other requirements under the final 
SSO rule. On March 16, 2016, FTA issued a final rule for State Safety 
Oversight (see https://www.gpo.gov/fdsys/pkg/FR-2016-03-16/pdf/2016-05489.pdf for a discussion of comments received on these terms), and 
FTA has adopted definitions found in that rulemaking in this 
rulemaking, where appropriate. Similarly, FTA received several comments 
related to the definition of the term ``State of Good Repair,'' which 
FTA was required to define in a rulemaking for transit asset management 
pursuant to 49 U.S.C. 5326. On July 26, 2016, FTA issued a final rule 
for Transit Asset Management wherein FTA defines the term ``State of 
Good Repair,'' and FTA has adopted that definition in this rulemaking. 
Please review the preamble of the Transit Asset Management final rule 
for FTA's responses to the comments that it received related to the 
proposed definition of ``State of Good Repair'' (see https://www.gpo.gov/fdsys/pkg/FR-2016-07-26/pdf/2016-16883.pdf). Relatedly, a 
number of commenters noted inconsistencies with the definitions 
throughout FTA's several safety rulemakings. In response, FTA has 
aligned the definitions in today's rule with other safety rulemakings 
and the Transit Asset Management final rule to ensure consistency.
    Below, the NPRM comments and responses are subdivided by their 
corresponding sections of the proposed rule and subject matter.

A. Scope and Applicability of Public Transportation Agency Safety Plans

1. Section 5310, Section 5311, Small Section 5307, and Tribal Operators
    Comments: Several commenters supported FTA's proposal to require 
States to draft and certify safety plans on behalf of recipients and 
subrecipients of FTA financial assistance through the Enhanced Mobility 
of Seniors and Individuals with Disabilities Program at Section 5310. 
Several commenters also supported FTA's proposal only to apply this 
rule to Section 5310 recipients and subrecipients that provide service 
open to the public, and not to apply this rule to Section 5310 
recipients and subrecipients that provide service closed to the public 
and only available for a particular clientele.
    Several commenters recommended that FTA exempt all Section 5310 
recipients and subrecipients from this rule. These commenters asserted 
that many Section 5310 operators are not traditional transit agencies--
they are human service organizations with a small transportation 
service, and they do not have sufficient staff, money, or resources to 
implement all aspects of a safety plan. One commenter stated that 
recipients and subrecipients of FTA financial assistance under Section 
5310 and Section 5311 should not be considered operators of public 
transportation, and thus, they should not be subject to this rule. 
Several commenters also requested that tribal transit operators be 
excluded from the requirements of this rule.
    A few commenters asserted that the proposed delineation between 
``general public'' and ``closed door'' is ambiguous. These commenters 
expressed concern that many smaller Section 5310 recipients may decide 
to discontinue transit service, thus reducing mobility for seniors and 
individuals with disabilities.
    One commenter stated that any new regulations should be tailored 
for small operators, and that FTA should avoid adding additional 
requirements and regulatory burdens. This commenter requested that FTA 
consider an exemption for transit agencies that operate fewer than 30 
vehicles in peak revenue service. Another commenter suggested requiring 
a limited set of streamlined and simplified requirements, without 
identifying what those requirements might be.
    Response: FTA appreciates the comments that it received regarding 
the proposed applicability of this rule. Pursuant to the statutory 
requirements of 49 U.S.C. 5329(d), ``each recipient or State'' is 
required to draft and certify a safety plan. The statute defines 
``recipient'' to mean ``a State or local governmental authority, or any 
other operator of a public transportation system, that receives 
financial assistance under [49 U.S.C. Chapter 53].''
    Notwithstanding this definition, and in light of the public 
comments and need for further evaluation, FTA is deferring regulatory 
action regarding the applicability of this rule to operators of public 
transportation systems that only receive Section 5310 and/or Section 
5311 funds. Further evaluation of information and safety data related 
to these operators is needed to determine the appropriate level of 
regulatory burden necessary to address the safety risk presented by 
these operators. Consequently, the rule does not apply to an operator 
of a public transportation system that only receives Federal financial 
assistance under 49 U.S.C. 5310, 49 U.S.C. 5311, or both 49 U.S.C. 5310 
and 49 U.S.C. 5311.
    FTA disagrees with the suggestion to create a threshold of 30 
vehicles in peak revenue service, and it is adopting the definition of 
``operator of a public transportation system'' as ``a provider of 
public transportation as defined under 49 U.S.C. 5302(14).''
    FTA agrees with the commenters who suggested that the final rule 
should be tailored for small operators and that the final rule should 
have simplified requirements. To that end, and as discussed in more 
detail below, FTA eliminated several significant requirements related 
to Safety Assurance for all small public transportation providers. 
Additionally, FTA eliminated requirements for Safety Assurance and a 
series of recordkeeping

[[Page 34424]]

requirements for all transit operators, regardless of size, in an 
effort to reduce their administrative, financial, and regulatory 
burdens.
2. Commuter Rail and Passenger Ferry Service
    Comments: Several commenters supported FTA's proposal to exclude 
from this rule rail fixed guideway public transportation (commuter 
rail) service regulated by FRA. Several commenters requested FTA to 
clarify that the rule applies to rail transit systems not subject to 
regulation by FRA. Three commenters requested FTA to clarify what it 
means to exclude rail transit agencies subject to regulation by another 
Federal agency. One commenter urged FTA to ensure that the rule does 
not duplicate the efforts of State Safety Oversight Agencies (SSOAs) 
and overly burden transit agencies.
    One commenter suggested that FTA replace the term ``commuter rail 
system'' with the term ``passenger rail system.'' This commenter stated 
that the term ``commuter'' is not defined in the rule, leaving no 
context for determining what types of rail systems would be excluded. 
The commenter also asserted that rail transit agencies might provide 
passenger rail service that is subject to FRA regulations, but that 
service may not be considered ``commuter'' service, thus resulting in a 
too-narrow description of ``commuter'' and a contradiction to FTA's 
intent to prevent ``duplicative, inconsistent, or conflicting 
regulations.''
    Several commenters supported FTA's proposal to exclude from this 
rule passenger ferry service regulated by USCG. Two commenters 
expressed support for the exclusion of USCG-inspected ferry vessels 
from the proposed rule. However, these commenters suggested that FTA 
should revise the term ``passenger ferries'' to clarify that the 
exclusion refers to passenger-only ferry vessels and ferry vessels that 
carry both passengers and vehicles (the commenters suggested the phrase 
``ferry as defined by title 46 United States Code 2101(10b)''). 
Additionally, this commenter urged FTA to clarify that the exclusion of 
USCG-inspected vessels applies to subparts C and D of the proposed 
rule, in addition to subpart B.
    Response: FTA appreciates the support for its proposal to exclude 
passenger rail service regulated by FRA and passenger ferry service 
regulated by USCG from the requirements of this rule. As discussed 
throughout this document, this rule applies to each operator of a 
public transportation system, including rail fixed guideway public 
transportation passenger rail service that is not regulated by another 
Federal agency. To further clarify, to the extent that an operator of a 
public transportation system provides passenger rail service that is 
regulated by FRA and rail fixed guideway public transportation service 
that is not regulated by FRA, this rule only would apply to that 
portion of the rail fixed guideway public transportation service that 
is not regulated by FRA.
    FTA appreciates the concerns regarding the use of the term 
``commuter rail system,'' which is not defined in this rule, and the 
suggestion to replace the term ``commuter rail system'' with the term 
``passenger rail system.'' Instead, in an effort to use terms 
consistently throughout all of FTA's rules and regulations, FTA is 
replacing the term ``commuter rail system'' with the term ``rail fixed 
guideway public transportation'' and is adopting the definition of this 
term as used in FTA's new State Safety Oversight (SSO) rule at 49 CFR 
part 674.
    With respect to passenger ferry service, FTA clarifies that this 
rule would not apply to any passenger ferry service that is regulated 
by USCG, including passenger ferry service and ferry service that 
involves the transportation of both passengers and vehicles. The 
exclusion of ferry service regulated by USCG applies to the rule in its 
entirety.
3. Contracted Service
    Comments: Several commenters requested FTA to clarify how the rule 
would apply to transit agencies that contract for transit service. A 
commenter stated that the proposed elements of PTASPs are being 
implemented in the majority of transit systems operated by contractors, 
but contractors generally do not have direct relationships with transit 
agencies' top leadership. A commenter requested that FTA clarify how 
contracted agencies should divide roles and responsibilities and 
implement SMS without having to revisit existing contractual 
agreements. This commenter also encouraged FTA to provide additional 
technical assistance to assist agencies operating in contract 
environments in the development and implementation of PTASPs. Another 
transit agency urged FTA to clarify the extent to which the 
implementation and administration of SMS principles could be delegated 
to contractors. One commenter stated that if inter-city bus service is 
contracted, then the contractor, not the transit agency, should have 
primary responsibility for safety and compliance with the rule.
    Two commenters asked FTA to clarify the rule's application to 
paratransit service. One of these commenters requested clarification as 
to how the rule would apply to an instance where a contractor provides 
paratransit service for a Section 5311 recipient and a separate Section 
5310 recipient.
    Response: As noted above, the statutory provisions of 49 U.S.C. 
5329(d) require each ``State or local governmental authority, or any 
other operator of a public transportation system, that receives 
financial assistance under [49 U.S.C. Chapter 53]'' to draft and 
certify a safety plan. Consequently, this rule applies to FTA's 
recipients and subrecipients, unless the transit operator only receives 
Section 5310 and/or Section 5311 funds. To the extent that a recipient 
or subrecipient contracts for transit service, FTA will defer to the 
recipient or subrecipient to ensure that each of the requirements of 
this rule are being satisfied through the terms and conditions of its 
contract, including the identification of safety roles and 
responsibilities. Ultimately, under the statute, each FTA recipient or 
subrecipient has the responsibility to ensure compliance with this rule 
and to certify compliance annually--not a contractor.
    Similarly, paratransit service--whether general public or ADA 
complementary, and including contracted paratransit service--is subject 
to this rule, unless the transit operator only receives Section 5310 
and/or Section 5311 funds. To the extent that a contractor provides 
paratransit service for multiple FTA recipients, each FTA recipient 
ultimately has responsibility for ensuring that its transit operation 
complies with this rule.

B. Definitions

1. Accident
    Comment: Several commenters expressed concerns with the proposed 
definition of ``Accident.'' Many of these commenters expressed concern 
with the phrase ``a report of a serious injury to a person'' within the 
definition of Accident. One commenter stated that ``serious injury'' 
relies on information that a transit agency is unlikely to possess or 
be able to validate. Another commenter expressed that this phrase would 
significantly increase transit agencies' notification and follow-up 
burdens. One commenter stated that the term ``Accident'' is a bias-
laden term which suggests that an undesirable event could not be 
foreseen, prevented, or avoided. This commenter also asserted that the 
continued use of this

[[Page 34425]]

term diminishes advances made by safety and risk management 
professionals to adopt and promote bias-free language describing and 
categorizing incidents. Another commenter suggested that the proposed 
definition offers several categorizations for accidents without regard 
to cause, circumstance, or affected environment.
    Several commenters suggested alternatives for the proposed 
definition of ``Accident.'' A commenter recommended using the threshold 
for accident notification in the former SSO rule at 49 CFR 659.33: 
``[M]edical attention away from the scene for two or more 
individuals.'' Another commenter proposed that the definition for 
``Accident'' should include a threshold of at least $100,000, otherwise 
every minor collision would be reportable in accordance with 49 CFR 
part 674, creating a burden on rail transit agencies' resources. This 
commenter suggested that accidents which result in property damage of 
$100,000 or less be classified as ``incidents,'' and be reportable to 
the SSOA and FTA, with a corresponding report to the National Transit 
Database (NTD) within thirty days. Another commenter remarked that the 
proposed definition of ``Accident'' should be more applicable to rail 
and bus/paratransit operations by using separate definitions for train 
and bus/paratransit accidents. For bus/paratransit, the commenter 
recommended that FTA should use the current Federal Motor Carrier 
Safety Administration (FMCSA) definition for ``Accident'' found in 49 
CFR part 390. The commenter suggested that FTA could use an amended 
version of their proposed definition for ``Accident'' for rail 
operations that replaces ``a report of serious injury to a person,'' 
with ``injuries requiring immediate medical attention away from the 
scene for two or more individuals.''
    Response: FTA included the definition of ``Accident'' in the 
proposed rule because the term appears in the definition of ``Event'' 
which is mentioned in the Safety Assurance section of the NPRM (a 
transit agency must develop a process to ``[i]nvestigate safety events 
to identify causal factors''). FTA defined ``Event'' as an ``Accident, 
Incident, or Occurrence,'' and to provide guidance to the industry on 
these terms, FTA defined them in its safety rules. Notably, FTA 
finalized a definition for ``Accident'' in its new SSO rule at 49 CFR 
part 674, and FTA is adopting that definition in today's rule to ensure 
consistency throughout FTA's regulatory framework for safety.
    FTA did not propose any reporting or notification requirements in 
this rule. FTA established reporting and notification requirements in 
the new SSO rule at 49 CFR part 674 and FTA's NTD Reporting Manual. 
Today's rule requires transit agencies to develop safety plans, and 
this rule outlines the requirements for those plans. Accordingly, FTA 
will not amend those notification and reporting requirements through 
today's rule.
    FTA disagrees with the commenter who suggested that the phrase 
``serious injury'' will increase transit agencies' notification and 
follow-up burdens; this language should simplify, streamline, and make 
consistent any follow-up process. FTA also disagrees with the commenter 
who stated that the term ``Accident'' is a bias-laden term. Its use is 
intended to define the universe of safety Events that must be 
investigated. FTA disagrees with the suggestion that the proposed 
definition offers several categorizations for Accidents without regard 
to cause, circumstance, or affected environment. FTA has offered 
clarification on this term in Appendix A to the new SSO rule at 49 CFR 
part 674 (https://www.gpo.gov/fdsys/pkg/FR-2016-03-16/pdf/2016-05489.pdf).
    FTA acknowledges that a transit agency may have difficulty 
ascertaining a precise type of injury due to medical privacy laws. FTA 
does not expect transit agencies to violate any medical privacy laws to 
determine whether an injury is serious. FTA does not expect transit 
agencies to seek medical records of individuals involved in Accidents 
that may have resulted in serious injuries.
    FTA disagrees with the commenter who recommended using the 
threshold for accident notification in 49 CFR 659.33, ``medical 
attention away from the scene for two or more individuals,'' as FTA 
believes that a serious injury to a single person is of sufficient 
concern to warrant designation as an ``Accident.'' Additionally, 
ambulance transportation away from the scene may not necessarily be an 
accurate indicator of the actual gravity of the Event, given the 
possibility of ambulance operators transporting individuals with minor 
injuries.
    FTA disagrees with the commenter who suggested that the definition 
of ``Accident'' include a threshold of at least $100,000, and that 
Events which result in property damage of $100,000 or less be 
classified as ``Incidents.'' FTA did not utilize the original $25,000 
threshold for ``Accident'' in the SSO rule because most collisions 
involving rail transit vehicles exceeds $25,000 in property or 
equipment damage and FTA believes that any threshold for property 
damage is arbitrary when determining whether an Event qualifies as an 
Accident. Removal of the $25,000 threshold also eliminates any need to 
separate rail transit property from non-rail transit property when 
making an assessment of damages.
    Finally, FTA disagrees with the commenter who suggested that the 
proposed definition of ``Accident'' be made more applicable to rail and 
bus/paratransit by using separate definitions for train and bus/
paratransit accidents. FTA intends to be consistent with its 
definitions, especially since this final rule applies to all operators 
of public transportation systems.
2. Incident
    Comments: One commenter stated that the proposed definition of 
``Incident'' seems broad and undefined, asserting that under the 
proposed definition, any reported injury could be classified as an 
Incident. Another commenter asked how to distinguish between medical 
transport for serious and non-serious injuries. A commenter asked FTA 
to clarify what is considered ``damage to facilities, equipment, 
rolling stock, or infrastructure'' and how ``damage'' would be assessed 
to determine qualification for an Incident. Additionally, the commenter 
asked how a transit agency would differentiate damage and a simple 
mechanical issue, and whether every defect found on an inspection would 
now be considered ``damage.'' This commenter also remarked that the 
terms ``personal injury'' and ``injury,'' which are used in the 
definition for ``Incident,'' are not defined. A commenter suggested 
that the definition of ``Accident'' would be the better place to 
include one or more injuries requiring medical transport away from the 
scene.
    One commenter asked whether a transit agency must track Incidents. 
Another commenter stated that the Appendix to 49 CFR part 674 requires 
rail transit agencies to report Incidents to FTA using NTD within 
thirty days; the commenter asked whether transit agencies providing bus 
transportation also must report bus-related incidents to FTA using NTD.
    Response: FTA included the definition of ``Incident'' in the 
proposed rule because the term appears in the definition of ``Event'' 
which is mentioned in the Safety Assurance section of the NPRM (a 
transit agency must develop a process to ``[i]investigate safety events 
to identify causal factors''). FTA defined ``Event'' as an ``Accident, 
Incident, or Occurrence,'' and to provide guidance to the industry on 
these terms, FTA defined them in its safety rules. Notably, FTA 
finalized a

[[Page 34426]]

definition for ``Incident'' in its new SSO rule at 49 CFR part 674, and 
FTA is adopting that definition in today's rule to ensure consistency 
throughout FTA's regulatory framework for safety.
    FTA disagrees with the commenter who stated that the definition of 
``Incident'' is broad and undefined and that any reported injury could 
be classified as an Incident. As discussed in more detail in response 
to the comments on the definition for ``Serious Injury,'' FTA believes 
that there is a clear delineation between ``serious injury'' and ``non-
serious injury.''
    FTA provided guidance in Appendix A to 49 CFR part 674 on how to 
define ``damage to facilities, equipment, rolling stock, or 
infrastructure'' and how ``damage'' would be assessed to determine 
qualification for an Incident. In Appendix A, ``damage'' that meets the 
Incident threshold is any non-collision-related damage to equipment, 
rolling stock, or infrastructure that disrupts the operations of a 
transit agency. Ultimately, each transit agency must assess the safety 
risk associated with any damage to its equipment facilities, equipment, 
rolling stock, or infrastructure, and whether it meets the definition 
of Accident, Incident, or Occurrence.
    FTA does not believe that it is necessary to define ``injury'' or 
``personal injury'' in this rule, and it defines ``Serious Injury'' for 
purposes of establishing a threshold by which an Event would be 
considered an Accident instead of an Incident. In today's rule, FTA has 
revised the definitions of ``Accident'' and ``Incident'' to make them 
consistent with FTA's SSO rule at 49 CFR part 674. Under the updated 
definitions, one or more ``serious injuries'' is the threshold for 
Accident and one or more non-serious injuries requiring medical 
transport away from the scene is considered an Incident.
    Under FTA's new SSO rule at 49 CFR part 674, a rail transit agency 
must track and report an ``Incident'' through NTD, as has been the 
historical practice. Furthermore, a transit agency also must report 
Incident information for other modes to FTA through NTD. Please refer 
to the NTD Reporting Manual for further information on what information 
is collected on safety Events as a well as Accidents and Incidents, for 
both rail transit and bus agencies.
3. Occurrence
    Comments: One commenter asked how damage would be differentiated 
from mechanical issues or normal wear-and-tear. This commenter asked 
FTA to clarify the relationship between ``Occurrence'' and ``Injury'' 
given that neither ``personal injury'' nor ``injury'' are defined in 
the rule. Another commenter asked FTA to define ``disrupt transit 
operations.'' Finally, one commenter recommended omitting the proposed 
definition because it is too broad and does not serve a clear purpose.
    Response: FTA included the definition of ``Occurrence'' in the 
proposed rule because the term appears in the definition of ``Event'' 
which is mentioned in the Safety Assurance section of the NPRM (a 
transit agency must develop a process to ``[i]investigate safety events 
to identify causal factors''). FTA defined ``Event'' as an ``Accident, 
Incident, or Occurrence,'' and to provide guidance to the industry on 
these terms, FTA defined them in its safety rules. Notably, FTA 
finalized a definition for ``Occurrence'' in its new SSO rule at 49 CFR 
part 674, and FTA is adopting that definition in today's rule to ensure 
consistency throughout FTA's regulatory framework for safety.
    FTA believes that there is a clear distinction between damage and 
mechanical issues or normal wear and tear. Damage is physical harm done 
to something or someone.\2\ Mechanical issues and normal wear and tear 
are not the result of something or someone inflicting harm on 
equipment, facilities, equipment, rolling stock, or infrastructure.
---------------------------------------------------------------------------

    \2\ See Merriam-Webster's Collegiate Dictionary (11th edition).
---------------------------------------------------------------------------

    A disruption to transit operations could be any interference with 
normal transit service at an agency. An Occurrence is a safety Event 
that only involves a disruption of transit service. A safety Event that 
results in a serious or non-serious injury would not be an Occurrence.
    FTA disagrees with the commenter who suggested that FTA should omit 
the proposed definition of ``Occurrence'' because it does not serve a 
clear purpose. The definition helps identify the universe of activity 
that a transit agency should investigate because it could present a 
safety risk.
4. Serious Injury
    Comments: Several commenters stated that transit agencies would not 
be able to obtain enough information about injuries to classify them as 
``serious,'' given Federal Health Insurance Portability and 
Accountability Act (HIPAA) privacy regulations. These commenters 
suggested that HIPAA privacy regulations prevent transit agencies from 
obtaining personal medical information from individuals involved in 
accidents. One commenter remarked that, in their experience, hospital 
staff refused to provide personal medical information to a transit 
police officer.
    One commenter recommended that FTA should explain how transit 
agencies and SSOAs can comply with this definition, and this commenter 
suggested that FTA create the legal authority for States to do so, or 
develop an alternative approach. A commenter remarked that if FTA has 
authority to obtain this type of information, then FTA should do so on 
its own accord. The commenter asked if it would meet one of the 
exemptions from the Government in the Sunshine Act if FTA collects 
information. One commenter asked how FTA would address and reconcile 
the proposed definition with other applicable Federal policies and 
regulations.
    One commenter asked whether FTA would expect transit agencies, 
States, and SSOAs to obtain contact information for every individual 
involved in an accident, and then monitor local hospitals or contact 
these individuals in the seven-day period to determine if anyone 
involved in the accident had to be hospitalized for more than 48 hours 
as a result of this accident. Finally, one commenter asked whether a 
doctor would be required to respond to every transit event that has the 
possibility of being classified as an accident to triage the situation 
and determine whether the event meets the definition of an accident.
    Several commenters expressed concern about the definition of 
``Serious Injury'' and its associated burden on transit agency staff. A 
commenter concluded that the proposed definition would require transit 
agencies, States, and SSOAs to step outside their training to practice 
some form of medicine--for which they are not licensed--to comply with 
the proposed rule, unless transit agencies, States, and SSOAs are 
expected to hire trained medical personnel as a part of their programs. 
The commenter stated that transit agency staff may not be aware of the 
nature or extent of an individual's injury, and these staff may only 
know that an individual was transported away from the scene for medical 
attention with very limited ability (and no authority) to confirm the 
individual's injury status. A commenter stated that, in order to meet a 
similar FRA requirement, the commenter expends considerable resources 
following up on individual claims, and is sometimes unable to properly 
classify events for months or years after the event date. The commenter 
concluded that the resources needed to gather this

[[Page 34427]]

proposed information would be burdensome, as the volume of passengers 
is much greater for FTA.
    A commenter asserted that transit agency staff could report certain 
findings on their initial incident reports, but this effort would be 
burdensome, and the transit agency staff would have to rely on 
eyewitness reports rather than medical professionals' opinions, 
rendering the effort unreliable. The commenter asked whether an initial 
patient/scene assessment would suffice, or whether a definitive medical 
diagnosis would be required.
    Several commenters suggested alternatives to the proposed 
definition of ``Serious Injury.'' Two commenters recommended that FTA 
use the definition in the former SSO rule at 49 CFR 659.33, which 
states that an accident involves injuries if there is a need for 
``immediate medical attention away from the scene for two or more 
individuals.'' According to these commenters, verifying transport away 
from the scene would have several benefits, such as: Not requiring 
transit agencies, States, and SSOAs to practice medicine to classify 
events; avoiding HIPAA complications; allowing events classified as 
accidents and incidents to be reported and investigated in a timely 
manner; being a more reasonable threshold for injury definitions; 
requiring only easily attainable information; and its alignment with 
NTD reporting requirements.
    One commenter questioned how FTA determined the classification for 
``serious'' and questioned how serious an injury could be if no medical 
treatment was sought for seven days. The commenter stated that FTA 
needs to define ``serious'' and remove the subjectivity of whether or 
not an injury is serious. Two commenters asked for the value of 
defining ``Serious Injury'' (that is, why does FTA want to collect this 
information and how would it enhance overall safety). One commenter 
recommended that FTA remove this definition from all of its safety 
rules.
    Response: Through the Safety Assurance section of today's rule (49 
CFR 673.27), FTA requires each operator of a public transportation 
system to develop a process for conducting investigations of safety 
events to identify causal factors. FTA defines the word ``Event,'' to 
mean an ``Accident, Incident, or Occurrence,'' and FTA defines 
``Accident'' to mean, among other things, ``a report of a serious 
injury to a person.'' To provide guidance to the industry on this term, 
FTA defined ``Serious Injury'' in its safety rules, including its new 
SSO rule at 49 CFR part 674. FTA is adopting the definition of 
``Serious Injury'' from the new SSO rule to ensure consistency 
throughout FTA's regulatory framework for safety.
    FTA has addressed comments regarding its proposed definition of 
``Serious Injury'' in the final SSO rule at 49 CFR part 674 (https://www.gpo.gov/fdsys/pkg/FR-2016-03-16/pdf/2016-05489.pdf) and in its 
responses to the definition of ``Accident,'' above. FTA acknowledges 
that a transit agency may have difficulty ascertaining a precise type 
of injury due to medical privacy laws, such as HIPPA. FTA does not 
expect transit agencies to violate these laws in order to obtain the 
information needed to determine whether an injury is serious, and it 
does not expect transit agencies to request the medical records of 
individuals involved in safety Events that may be classified as 
Accidents resulting in Serious Injuries. Nor does FTA expect transit 
agency staff to undergo medical training in order to determine whether 
an injury meets the threshold of ``serious.'' Instead, FTA expects 
safety personnel to exercise a common sense approach when evaluating 
injuries. As several commenters noted, some injuries may be readily 
known or observable at the scene of an event, in which case, a transit 
agency may make a determination as to whether an injury is serious. 
Other injuries may not be apparent until the individual undergoes a 
medical examination, in which case the injury would be deemed 
``serious'' only if a transit agency becomes aware that the injury 
meets the threshold for seriousness. FTA believes that a transit agency 
may utilize these approaches when determining the seriousness of an 
injury, and it does not believe that it needs to reconcile the 
definition of ``Serious Injury'' with other laws.
    Given the ability of transit agencies to make observations at the 
scenes of safety events and to evaluate data and information collected 
at these scenes, FTA does not believe that any burdens of this rule are 
unreasonable. FTA does not expect transit agencies to monitor local 
hospitals or contact individuals involved in safety events within the 
seven day period to determine if the individuals were hospitalized for 
more than 48 hours. FTA is not requiring doctors to respond to every 
safety Event that has the possibility of being classified as an 
Accident to triage the situation and determine whether the event meets 
the definition of an Accident, and FTA is not requiring transit 
agencies to hire medical personnel. In today's rule, FTA is requiring 
transit agencies to develop a process for conducting safety 
investigations.
5. Accountable Executive
    Comments: FTA received numerous comments regarding its proposed 
definition of ``Accountable Executive.'' Several commenters provided 
input on the definition of ``Accountable Executive'' as it relates to 
``Chief Safety Officer.'' One commenter stated that, according to the 
proposed rule, the Accountable Executive is responsible for 
implementing and maintaining the SMS; however, this should be a primary 
responsibility of the Chief Safety Officer. Another commenter asked 
whether an Accountable Executive would experience a conflict of 
interest if he or she also serves as the Chief Safety Officer or SMS 
Executive, as allowed under proposed 49 CFR 673.23(d)(2), because the 
duties also involve operational, financial, and other responsibilities 
that may be in conflict with safety responsibilities.
    Several commenters recommended that FTA clarify in the final rule 
that State officials are not ``Accountable Executives'' unless the 
State is a transit operator, and if so, only with respect to the 
State's activities as a transit operator. Several commenters asked 
whether the Accountable Executive is the chief elected official, such 
as a county executive or mayor, in cases where the transit operator is 
a county or city government. A transit agency, with a general manager 
who is responsible for the day-to-day aspects of the transit system and 
a chief administrator who is responsible for the administrative aspects 
of the organization, asked how it would designate a single Accountable 
Executive who meets all of the criteria of 49 CFR part 673.
    A few commenters expressed concerns about the overlapping and 
burdensome responsibilities of the Accountable Executive, which may not 
allow for sufficient attention to safety. Several commenters said the 
proposed definition may give an elected official or board chair the 
designation of an Accountable Executive despite serving at a policy, 
rather than an operational, level. A transit agency argued that the 
proposed definition is ambiguous and inconsistent with the proposed 
National Public Transportation Safety Plan, and some definitions state 
that the Accountable Executive is in charge of an asset management 
plan, while other areas omit this requirement. One commenter asserted 
that the job duties of planning staff are inherently much different 
from maintenance staff activities, and staff should report to their 
respective managers instead of a

[[Page 34428]]

single executive. Similarly, a commenter stated that, in some 
instances, a transit agency's reporting structure is shaped by State or 
local laws to promote a separation of duties and financial checks and 
balances, and these important governmental tenets should not be 
disrupted by the new safety requirements. Several commenters suggested 
that the definition of Accountable Executive may not be applicable in 
some non-traditional transit agency hierarchies.
    Several commenters suggested that the Accountable Executive should 
be a general manager, president, or equivalent officer who is 
responsible for safety, asset management, and human resources, but not 
have full control over the budgeting process. Another commenter stated 
that that proposed definition may be inappropriate because having one 
Accountable Executive for SMS, the asset management plan, and the 
safety plan is ineffective because the Accountable Executive should be 
represented by different individuals for each regulatory program. The 
commenter recommended that FTA define an Accountable Executive to be 
``an individual who is responsible for the Safety Management System and 
Agency Safety Plan, who shall be required to have a role in the 
[transit asset management plan] and investment prioritization for the 
respective agency.''
    Response: Each transit operator must identify an Accountable 
Executive within its organization who ultimately is responsible for 
carrying out and implementing its safety plan and asset management 
plan. And to be clear, a State that drafts a plan on behalf of another 
recipient or subrecipient is not the Accountable Executive for those 
transit operators.
    An Accountable Executive should be a transit operator's chief 
executive; this person is often the president, chief executive officer, 
or general manager. FTA understands that at many smaller transit 
operators, roles and responsibilities are more fluid. However, FTA 
believes that, even in circumstances where responsibilities are either 
shared or delegated, there must be one primary decision-maker who is 
ultimately responsible for both safety and transit asset management. It 
is a basic management tenet that accountabilities flow top-down. 
Therefore, as a management system, safety and transit asset management 
require that accountability reside with an operator's top executive.
    FTA received numerous comments on its proposed definition of 
``Accountable Executive'' in its rulemaking on transit asset 
management, and FTA directs readers to the final Transit Asset 
Management rule at 49 CFR part 625 for further information (https://www.gpo.gov/fdsys/pkg/FR-2016-07-26/pdf/2016-16883.pdf).
6. Chief Safety Officer
    Comments: One commenter agreed with FTA that a Chief Safety Officer 
should not serve in other service, operational, or maintenance 
capacities. Several commenters agreed with FTA's proposal to allow 
Section 5310, Section 5311, and small public transportation providers 
to designate as the Chief Safety Officer a person who also undertakes 
other functions. Several commenters asked FTA to clarify the term 
``adequately trained.''
    One commenter expressed concern that FTA may be assuming that any 
rail transit agency is large enough to merit its own Chief Safety 
Officer with no additional operational or maintenance responsibilities, 
indicating that this requirement is burdensome because a rail transit 
agency would have to hire or contract a separate Chief Safety Officer 
for a limited role. The commenter suggested that FTA should permit an 
exemption for small rail transit agencies similar to the exemption for 
small public transportation providers to resolve this concern. This 
commenter also asked FTA to clarify whether a Chief Safety Officer has 
to be in the direct employ of a rail transit agency and whether he or 
she could be a part-time employee.
    A commenter stated that FTA has proposed, but not promulgated, 
training rules for SSOA managers, Federal employees, and transit agency 
staff who are responsible for safety oversight, and argued that these 
training requirements also should apply to a Chief Safety Officer prior 
to designation by the Accountable Executive.
    One commenter stated that the terms ``Chief Safety Officer'' and 
``Safety Officer'' are inconsistently used, and the term ``Safety 
Officer'' was not defined in the NPRM. To rectify this inconsistency, 
the commenter, who concluded that it is implied that the Safety Officer 
is the Chief Safety Officer, suggested that FTA should replace the term 
``Safety Officer'' with ``Chief Safety Officer.''
    Response: FTA appreciates the support from commenters regarding its 
proposed definition of ``Chief Safety Officer.'' Given the different 
sizes of transit operators, and given the varying operating 
environments of transit systems across the nation, FTA is deferring to 
each transit operator to determine the level of training that is 
adequate for their Chief Safety Officer.
    FTA disagrees with the commenter who suggested that a Chief Safety 
Officer at a rail transit agency should be able to have multiple roles 
within the organization. Given the more complex operating environments 
of rail transit systems and the increased safety risks in these 
environments, FTA will not allow the Chief Safety Officers for rail 
transit agencies to have additional operational and maintenance 
responsibilities; it is necessary to have a single individual wholly 
dedicated to ensuring safety. FTA believes that this role should be a 
full-time responsibility at rail transit agencies, unless a rail 
transit agency petitions FTA to allow its Chief Safety Officer to serve 
multiple roles given administrative and financial hardships with having 
a single, dedicated, and full-time Chief Safety Officer.
    Finally, FTA notes that all references to the term ``Safety 
Officer'' in the NPRM were intended to mean the term ``Chief Safety 
Officer.''
7. Operator of Public Transportation System
    Comments: One commenter suggested that an ``Operator of a Public 
Transportation System'' should be ``any organization, agency, or 
company that operates, or contracts someone to operate, any mode of 
transportation that is used by the general public in a defined city, 
State, or region.''
    Response: The proposed rule defines ``Operator of a Public 
Transportation System'' as ``a provider of public transportation as 
defined under 49 U.S.C. 5302(14), and which does not provide service 
that is closed to the general public and only available for a 
particular clientele.'' Given that FTA is deferring action regarding 
the applicability of this rule to Section 5310 recipients, FTA has 
changed this definition in the final rule to be ``a provider of public 
transportation as defined under 49 U.S.C. 5302(14).'' The additional 
language--``and which does not provide service that is closed to the 
general public and only available for a particular clientele''--is not 
needed since the rule is not applicable to Section 5310 recipients at 
this time. FTA believes that the proposed definition is sufficiently 
broad to encompass the categories of transit providers referenced in 
the commenter's definition. FTA does not agree that the definition 
needs to specify that an operator provide service in a defined city, 
State, or region.
8. Rail Transit Agency
    Comments: The proposed rule defines a ``Rail Transit Agency'' as 
``any entity that provides services on a rail fixed

[[Page 34429]]

guideway public transportation system.'' One commenter asked FTA to 
clarify whether the proposed definition applies equally to a public 
transit operator and a contracted private firm that operates and 
maintains services on a rail fixed guideway public transportation 
system.
    Response: This rule applies to any operator of a public 
transportation system that receives Federal financial assistance under 
49 U.S.C. Chapter 53, including rail transit operators that receive FTA 
funds and are not regulated by FRA, unless the operator only receives 
Section 5310 and/or Section 5311 funds. The application of this rule 
extends to contracted private firms that operate public transportation 
and receive FTA funds, but it does not extend to private contractors 
that provide service that is not public transportation.
9. Performance Target, Safety Performance Target, and Performance 
Criteria
    Comments: One commenter remarked that the proposed definition for 
``Performance Target'' needs clarity. Another commenter stated that FTA 
should consider deleting the proposed definition for ``Performance 
Target,'' because the proposed definition for ``Safety Performance 
Target'' is more appropriate for this safety-related rule. This 
commenter also suggested revising the definition of ``Safety 
Performance Target'' to ``a specific level of measurable performance 
for a given safety performance criteria over a specified timeframe.''
    FTA proposed to define ``Performance Criteria'' as ``categories of 
measures indicating the level of safe performance within a transit 
agency.'' One commenter stated that this definition is confusing and 
possibly inconsistent with the proposed National Public Transportation 
Safety Plan. The commenter stated that the terms ``Criteria'' and 
``Measures'' appear to be synonymous, and proposed the following 
definition for ``Performance Criteria'': ``Categories of safety 
performance measures that focus on the reduction of safety events, both 
for the public who use or interface with the rail system, and employees 
who operate and maintain the system.''
    Response: As appropriate, FTA has incorporated into this rule 
definitions that appear in other rulemakings undertaken pursuant to 49 
U.S.C. 5329 and 5326, as well as the final joint FHWA/FTA Planning Rule 
which was published May 27, 2016 (see https://www.gpo.gov/fdsys/pkg/FR-2016-05-27/pdf/2016-11964.pdf). Accordingly, FTA has revised the 
definition of ``Performance Target'' and added the definition of 
``Performance Measure'' to match the definitions used in the joint 
FHWA/FTA Planning rule and FTA's Transit Asset Management rule.
    To avoid redundancy, FTA is deleting the definition for ``Safety 
Performance Target'' and keeping the definition of ``Performance 
Target,'' since these terms are one and the same for purposes of this 
rule.
    FTA had to reconcile the use of similar terms throughout its 
statutory authorizations for safety and asset management, including the 
terms ``criteria'' and ``measures.'' Although Congress used two 
different terms throughout 49 U.S.C. Chapter 53, it intended these 
terms to be synonymous. In the NPRM, FTA proposed to define 
``Performance Criteria'' to mean ``categories of measures indicating 
the level of safe performance within a transit agency,'' but to 
eliminate confusion in this final rule, FTA removes that term, replaces 
it with the term ``Performance Measure,'' and incorporates the 
definition of ``Performance Measure'' as used in FTA's Transit Asset 
Management rule. Consequently, FTA uses the term ``Performance 
Measure,'' in the place of ``Performance Criteria,'' throughout this 
final rule.
10. Small Public Transportation Provider
    Comments: The proposed rule defines ``Small Public Transportation 
Provider'' as ``a recipient or subrecipient of Urbanized Area Formula 
Program funds under 49 U.S.C. 5307 that has one hundred (100) or fewer 
vehicles in revenue service and does not operate a rail fixed guideway 
public transportation system.''
    Several commenters requested FTA to clarify that the ``100 buses in 
revenue service standard'' applies only to recipients of Section 5307 
funds, and not recipients of Section 5310 or 5311 funds. One commenter 
asked whether the threshold of 100 vehicles in revenue service refers 
to total revenue fleet vehicles, peak vehicles, or something else. 
Another commenter that operates commuter rail service regulated by FRA, 
but has fewer than 100 buses in revenue service, asserted that they met 
the definition of a ``Small Public Transportation Provider.'' The 
commenter stated it posed this assertion to FTA during a webinar for 
this rulemaking on March 2, 2016, and it requested that FTA 
clarification the application of the rule to its scenario.
    A couple of commenters remarked that the proposed definition for 
``Small Public Transportation Provider'' differed between related 
rulemakings and notices, specifically the TAM proposed rule and FTA's 
Circular 9030.1E. Commenters noted that the TAM rule's reference to 
``in revenue service'' is a typical definition in the industry and 
should be adhered to across all proposed rulemakings.
    Other commenters suggested that the definition include providers 
with ``100 or fewer fixed-route vehicles,'' or be based on the service 
area's population rather than the number of buses. Additionally, one 
commenter suggested that vanpool fleets that are not open to the 
general public should be counted as revenue service vehicles.
    Several commenters noted that significant differences exist between 
rail transit operators, large bus operators, and smaller operators, 
particularly in the ways in which they conduct business and in the rate 
of accidents and the consequences of those accidents. One commenter 
stated that the categories in the proposed rule are too broad and rigid 
and could have unintended consequences for small operators. The 
commenter remarked that the rigidity of a ``two-tier system'' could 
cause a Section 5307 recipient, with under 100 vehicles, to have their 
oversight provided by the State. Another commenter stated that the two-
tier system does not take into account a Section 5311 recipient that 
may serve multiple counties with over 100 vehicles. The commenter 
remarked that there is no definition for this type of system within the 
``tiers'' and that the Section 5311 recipient might be bumped into a 
higher category. One commenter suggested adding a third tier for 
systems operating fifty or fewer vehicles and no rail fixed guideway 
public transportation service to provide States with the opportunity to 
implement SMS scalable to the size and complexity of the transit 
organization.
    Response: FTA appreciates the comments that it received regarding 
its proposed definition for ``Small Public Transportation Provider.'' 
FTA agrees with the commenters who suggested that FTA align this 
definition with the definition in the final TAM rule, and FTA agrees 
with the commenters who suggested that FTA create the threshold for 
Small Public Transportation Providers based on vehicles utilized in 
peak revenue service, as opposed to revenue service in general, as peak 
revenue service is a threshold commonly used in the transit industry. 
Therefore, in today's final rule, FTA defines ``Small Public 
Transportation Provider'' to mean ``a recipient or subrecipient of 
Federal financial

[[Page 34430]]

assistance under 49 U.S.C. 5307 that has one hundred (100) or fewer 
vehicles in peak revenue service and does not operate a rail fixed 
guideway public transportation system.''
11. Requests for New Definitions
    Comments: One commenter requested that FTA add new definitions for 
the term ``safety performance assessment.'' One commenter recommended 
that FTA clarify whether the term ``Public Transportation Vehicle'' 
includes rail, bus, paratransit, maintenance, and non-revenue vehicles. 
Several commenters recommended that FTA define the term ``Transit 
Provider'' as follows: ``A State is not considered to be a transit 
provider by virtue of passing on funds to subrecipients under 49 U.S.C. 
5310, 5311, or 5339, administering these programs, developing and 
implementing a TAM plan, or safety plan or certifying a safety plan, or 
taking any other steps required of a State by Chapter 53 of title 49, 
United States Code or other Federal statue, or by this or other FTA 
rules.''
    Response: For purposes of implementing this rule, FTA does not find 
it necessary to further define the term ``safety performance 
assessment.'' Generally, this term refers to a transit agency's 
evaluation of its success of managing safety risks. To the extent there 
is any confusion over this term, FTA will provide technical assistance.
    FTA notes that a public transportation vehicle may include rail, 
bus, paratransit, maintenance, and non-revenue vehicles, as the term is 
utilized in the definition of ``Accident.''
    Finally, FTA did not propose to define the term ``Transit 
Provider'' in the NPRM, and FTA believes that the term is sufficiently 
descriptive and does not need to be defined in this rule.

C. General Requirements

    Comments: Several commenters provided high-level feedback regarding 
the general requirements for PTASPs as proposed in 49 CFR 673.11. One 
commenter suggested that FTA should clearly emphasize that these 
elements are minimum requirements and that a transit agency should be 
able to enhance its SMS and incorporate tools and best practices that 
are proven to be effective, particularly given the adaptability, 
scalability, and flexibility of SMS.
    One commenter asserted that the combination of the general 
requirements for each written safety plan, along with the requirements 
to ``establish SMS processes,'' results in a lack of clarity regarding 
the required contents of the actual document that a transit agency 
would consider to be its safety plan. This commenter stated that FTA 
should provide at least the same degree of specificity with regard to 
the required contents of a transit agency's written safety plan that 
FTA provided for SSPPs under the former SSO rule at 49 CFR part 659.
    Response: As discussed throughout today's final rule, SMS is 
scalable and flexible, and it can be adapted to any transit agency's 
unique operating environment. The requirements in the rule provide the 
skeleton framework for safety plans, and FTA encourages transit 
agencies to incorporate tools and best practices that effectively 
mitigate and eliminate safety risks throughout their systems.
    To be clear, each written safety plan must include the documented 
processes and procedures related to SMS, and the written plan must 
include each of the other requirements as outlined in the rule. FTA 
intentionally drafted broad, non-prescriptive requirements for SMS in 
an effort to develop a safety framework that could fit within the 
thousands of unique transit operating environments across the nation.
1. Role of the Accountable Executive
    Comments: Pursuant to FTA's proposed provisions at 49 CFR 
673.11(a)(1), each transit agency's Accountable Executive must sign the 
agency's safety plan and subsequent updates thereto. One commenter 
supported this provision and asserted that the requirement is essential 
for SMS and for maintaining a positive safety culture. Another 
commenter agreed that the Accountable Executive with budgetary 
authority should review and approve the safety plan.
    A couple of commenters asked whether the Accountable Executive must 
be the same individual for purposes of approving the agency's safety 
plan and the agency's transit asset management plan, and they asked 
whether the Accountable Executive must be the individual explicitly 
``responsible for implementing SMS.'' These commenters also inquired 
about the Accountable Executive's role for municipal government 
agencies, and they asked whether the head of a city's department of 
transportation, the head of a city's department of public works, or a 
city manager may serve as the Accountable Executive for a municipal 
government agency, as opposed to a city's mayor.
    Response: As a preliminary matter, FTA distinguishes the role of 
the Accountable Executive from the role of a Board of Directors, or an 
Equivalent Authority. Pursuant to 49 CFR 673.11(a)(1), the Accountable 
Executive must sign the safety plan; the Board of Directors or an 
Equivalent Authority must approve the safety plan in accordance with 49 
U.S.C. 5329(d)(1)(A).
    Given the varying sizes and natures of transit systems, FTA defers 
to those systems in their designation of an Accountable Executive, so 
long as that single individual has the ultimate responsibility and 
accountability for the implementation and maintenance of the SMS 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 and the agency's 
transit asset management plan. For municipal government agencies, that 
individual could be a county executive or a mayor, or it could be the 
head of a city's department of transportation, the head of a city's 
department of public works, or a city manager. FTA has offered this 
non-exhaustive list of examples of Accountable Executives for 
illustrative purposes only. And while many individuals within a transit 
agency may be responsible for ``implementing'' SMS, the Accountable 
Executive is the individual with the ultimately responsibility for SMS 
implementation at the agency.
2. Approval of a Public Transportation Agency Safety Plan
    Comments: Pursuant to FTA's proposed provisions at 49 CFR 
673.11(a)(1), each transit agency would be required to have its safety 
plan, and subsequent updates thereto, approved by the agency's Board of 
Directors, or an Equivalent Authority. One commenter supported this 
provision, indicating that this activity is essential for SMS and for 
maintaining a positive safety culture.
    Several commenters asserted that the agency's Accountable 
Executive, not the Board of Directors, would be the more appropriate 
entity to approve the safety plan. These commenters stated that a Board 
of Directors, which can consist of limited-term elected officials, are 
not subject to the same training requirements as the Accountable 
Executive, and do not have the operational knowledge and expertise 
suitable for the review and approval of a safety plan. One of these 
commenters suggested that the Accountable Executive have top-level 
ownership of the safety plan, with a stipulated responsibility to 
educate and report to the Board of Directors on the agency's safety 
program.
    Several commenters asked questions about the implementation of this

[[Page 34431]]

provision for agencies that lack Boards of Directors. A couple of 
commenters asked if transit agencies can request FTA to approve their 
``Equivalent Authorities,'' or whether they must wait for an FTA 
oversight review to determine whether their Equivalent Authorities are 
consistent with the rule. A couple of commenters had specific questions 
regarding the adequacy of an Equivalent Authority. One example involved 
a streetcar being owned by a city, but being operated and maintained by 
a non-profit organization with its own Board of Directors. Another 
example involved a State Department of Transportation which does not 
have a Board of Directors, but instead, has an Administrator/CEO. One 
commenter asked FTA to provide a clear example of an ``Equivalent 
Authority'' if a recipient does not have a Board of Directors. 
Similarly, another commenter asserted that a State may have difficulty 
identifying an Equivalent Authority because a subrecipient may be a 
parish or county that does not necessarily have a Board of Directors. 
Another commenter recommended that an Equivalent Authority should have 
a thorough knowledge of a transit agency's daily operations and the 
authority to obtain operational and safety data so that it could 
provide safety oversight.
    One commenter asked about the measure of ``approval'' for the Board 
of Directors, and inquired as to what that approval would denote in 
terms of safety responsibility.
    Another commenter observed that a transit agency with rail and bus 
operations must have its safety plan approved by the SSOA for purposes 
of its rail operations, and suggested that FTA would have to approve 
the safety plan for purposes of its bus operations. This commenter 
expressed concern that, unless there are very clear guidelines for the 
review and approval of the safety plans, there is the potential for 
conflicting views and approvals, including approval of one operation 
and not the other.
    Response: FTA appreciates concerns from commenters indicating that 
members of a transit agency's Board of Directors may not be fully 
educated in safety; however, through the statutory provisions of 49 
U.S.C. 5329(d)(1)(A), Congress required each transit agency's Board of 
Directors, or an Equivalent Authority, to approve the agency's safety 
plan. Through the Safety Management Policy provisions of 49 CFR 673.23 
and the Safety Promotion provisions of 49 CFR 673.29, each transit 
agency is required to identify individuals who are responsible for 
safety in their organization and to ensure that those individuals are 
adequately trained, including staff and executive leadership, and this 
requirement should extend to a transit agency's Board of Directors.
    If a transit agency does not have a Board of Directors, then an 
Equivalent Authority may approve its safety plan. An Equivalent 
Authority is an entity that carries out duties similar to that of a 
Board of Directors, including sufficient authority to review and 
approve a safety plan. For example, an Equivalent Authority could be 
the policy decision-maker/grant manager for a small public 
transportation provider; the city council and/or city manager for a 
city; a county legislature for a county; or a State transportation 
commission for a State. Given the varying sizes and organizational 
structures of the thousands of recipients and subrecipients throughout 
the country, FTA is not providing a prescriptive definition of this 
term, and it is deferring to each transit agency to identify who would 
be an Equivalent Authority for its system. FTA intends its list of 
examples to be non-exhaustive and illustrative only.
    The approval of the safety plan should mean that the Board of 
Directors or the Equivalent Authority accepts the safety plan as 
satisfactory, that the safety plan complies with each of the 
requirements of this rule, and that the safety plan effectively will 
guide the transit operator with the management of safety risks.
    Finally, to clarify, FTA does not intend to collect and ``approve'' 
safety plans. FTA intends to ensure that transit agencies comply with 
this rule by reviewing their safety plans through FTA's existing 
Triennial Reviews and State Management Reviews. Through these oversight 
processes, FTA may collect various documents, including safety plans, 
to ensure compliance with this part, but FTA will not provide regular 
``approvals'' of the plans. SSOAs, however, must approve the safety 
plans of rail fixed guideway public transportation operations within 
their jurisdictions.
3. Documentation of SMS Processes and Activities
    Comments: Pursuant to FTA's proposed provisions at 49 CFR 
673.11(a)(2), each transit agency would be required to document its 
processes and activities related to SMS in its safety plan. One 
commenter sought clarity regarding whether the safety plan must detail 
the processes and activities, or just indicate that such processes and 
activities exist. Another commenter asked which documents should be 
included in the safety plan, specifically whether the safety plan 
should include documents that are generated by the results of ongoing 
SMS activities, or only those documents which formally present a 
description of SMS processes.
    Response: Each safety plan must include documented SMS processes; 
it is not sufficient to merely indicate in the safety plan that SMS 
processes exist. Through the practice and implementation of SMS, each 
transit agency may generate data and other documentation, but the 
safety plan itself must document each of the processes as outlined in 
this rule. FTA is providing discretion to each transit agency to decide 
for itself whether it will incorporate processes and documented 
activities beyond those required in today's final rule.
4. Safety Performance Targets
    Comments: Pursuant to FTA's proposed provisions at 49 CFR 
673.11(a)(3), each transit agency would be required to identify in its 
safety plan performance targets based on the safety performance 
measures that FTA establishes in the National Public Transportation 
Safety Plan. One commenter supported FTA's proposed list of safety 
performance measures as outlined in the National Public Transportation 
Safety Plan, but several commenters recommended that FTA expand the 
list of performance measures. One commenter recommended that FTA reduce 
its proposed list of safety performance measures to align with the 
safety outcomes that transit agencies currently report to NTD. One 
commenter stated that the proposed definition of ``Performance 
Criteria'' is confusing and inconsistent with the National Public 
Transportation Safety Plan. The commenter stated that the terms 
``Criteria'' and ``Measures'' are synonymous, and proposed the 
following alternate definition: ``categories of safety performance 
measures that focus on the reduction of safety events, both for the 
public who use or interface with the rail system, and employees who 
operate and maintain the system.'' Several commenters requested that 
FTA provide agencies with additional guidance on the four basic safety 
performance measures.
    One commenter asked whether the safety plan must contain specific 
quantitative performance targets for all performance measures. This 
commenter stated that specific quantitative targets would pose 
challenges for transit agencies and that all targets should be

[[Page 34432]]

broad and not static to allow agencies to adjust their targets as new 
information dictates. Several commenters requested FTA to allow transit 
agencies to update and revise their safety plans if FTA alters or 
adjusts performance measures.
    Response: FTA appreciates the comments that it received regarding 
its proposed safety performance measures; however, the proper vehicle 
for addressing these comments is through the notice and comment process 
tied to FTA's proposed National Public Transportation Safety Plan (RIN 
2132-ZA04). The National Public Transportation Safety Plan will 
identify FTA's safety performance measures, not today's rule for Public 
Transportation Agency Safety Plans. The Public Transportation Agency 
Safety Plan rule only requires transit agencies to set performance 
targets based on the performance measures established in the National 
Public Transportation Safety Plan. FTA will address all of the comments 
related to safety performance measures in the National Public 
Transportation Safety Plan, including the above-referenced comments 
that were directed to this rulemaking.
    FTA notes that in the NPRM for this rule, FTA used the term 
``Performance Criteria,'' which it proposed to define as ``categories 
of measures indicating the level of safe performance within a transit 
agency.'' FTA used this term because the language of 49 U.S.C. 5329 
uses the term ``Performance Criteria.'' Other parts of FTA's 
authorizing statute, such as the Transit Asset Management provisions of 
49 U.S.C. 5326, use the term ``Performance Measures.'' FTA believes 
that Congress intended the terms ``Performance Criteria'' and 
``Performance Measures'' to be synonymous. To eliminate confusion over 
distinctions between these terms and to ensure consistency with the use 
of these terms throughout FTA's programs, FTA has removed the term 
``Performance Criteria'' from today's final rule and replaced it with 
the term ``Performance Measure.''
    Finally, in accordance with the statutory requirements of 49 U.S.C. 
5329(d)(1)(E), each transit agency must include in its safety plan, 
``performance targets based on the safety performance criteria and 
state of good repair standards.'' These targets must be specific 
numerical targets set by transit agencies themselves. FTA emphasizes, 
however, that the safety plan is intended to be a living document that 
evolves over time. FTA expects transit agencies to modify their safety 
plans, and to adjust their performance targets, as they collect data 
and implement SMS. Indeed, the performance targets may change from year 
to year, or more frequently, as safety data may necessitate.
5. Future Requirements in FTA's Public Transportation Safety Program 
and National Public Transportation Safety Plan
    Comments: One commenter requested FTA to provide guidance on what 
it means to ``address'' the requirements and standards in its Public 
Transportation Safety Program and National Public Transportation Safety 
Plan. Another commenter expressed concern that FTA has not established 
formal standards for these requirements, and requested FTA to establish 
minimum measures and targets for safety performance and improvement.
    Response: In today's final rule, FTA is requiring each transit 
agency to address--more specifically, to ensure that it is complying 
with--all applicable requirements and standards as set forth in FTA's 
Public Transportation Safety Program at 49 CFR part 671 and the 
National Public Transportation Safety Plan. In particular, each transit 
agency must identify safety performance targets based on the 
performance measures that FTA establishes in the National Public 
Transportation Safety Plan. Additionally, FTA encourages transit 
agencies to adopt any voluntary minimum safety performance standards 
established in the National Public Transportation Safety Plan, until 
mandatory standards are established, in which case each transit agency 
must fully comply with those safety performance standards. To the 
extent that FTA amends its Public Transportation Safety Program Rule or 
the National Public Transportation Safety Plan in the future, FTA 
expects each transit agency to amend its safety plan, as appropriate.
6. Process and Timeline for Annual Review and Update
    Comments: One commenter asked FTA to clarify if the timeline for 
the annual review process is determined by each transit agency, or 
whether there is a particular date by which an annual review and update 
is required.
    Several commenters disagreed with the proposed requirement that the 
plans be updated annually. Some commenters suggested that safety plans 
only need to be updated every two years because the requirement for an 
annual update of safety plans is excessive and burdensome. Several of 
these commenters asserted that if annual action is needed, an annual 
review and status report would be less resource intensive. A few 
commenters suggested that safety plans need only to be updated every 
two years, unless there is a significant policy or change in condition 
(such as a fatality) that warrants a change. Another commenter 
recommended the same approach, but with updates required every three 
years rather than two years. One commenter suggested alternative review 
schedules ranging from every two years to every five years. One 
commenter suggested that organizations which meet various criteria 
should be placed on a five year review plan and they should be required 
to submit any requested updates to policies for review and approval.
    One commenter asserted the review requirement should be consistent 
with FTA's proposed rule for Transit Asset Management Plans, which 
would require each transit agency to update its Transit Asset 
Management Plan at least once every four years. Additionally, this 
commenter suggested that the rule should require an update of a safety 
plan in any year when risk assessments result in the need for 
substantial mitigation, or if there are significant changes to asset 
inventory, condition assessments, or investment prioritization.
    A couple of commenters asked about the required annual update as it 
may relate to a rail transit agency's SSPP annual reviews. A commenter 
asked whether the process for conducting annual reviews would likely be 
similar to the SSPP annual reviews, including requirements that an 
Accountable Executive would perform the review and that a transit 
agency document all updates and revisions. A commenter suggested that 
the proposed requirement to conduct an annual review and update the 
safety plan, as needed, differed from the requirement to conduct a 
formal annual internal audit of the SSPP.
    A commenter expressed concern with FTA's decision to publish the 
National Public Transportation Safety Plan with no schedule for 
revision, which would cause transit agencies to continuously update 
their safety plans to coincide with any changes in FTA guidance 
documents. This commenter further encouraged FTA to define prescriptive 
elements of the annual review and update process to better guide 
agencies.
    Response: Pursuant to the statutory provisions of 49 U.S.C. 
5239(d)(1)(D), each operator of a public transportation system must 
develop a safety plan which includes ``a process and timeline for 
conducting an annual review and update of the safety plan.'' In light 
of this statutory language, today's final rule requires each transit 
agency to establish a process and timeline for conducting a review and 
update of its

[[Page 34433]]

safety plan, and this review and update must occur at least annually. 
49 CFR 673.11(a)(5).
    Given the diversity in transit systems across the country, and 
given each transit agency's unique operating environment, FTA is 
deferring to each transit agency to determine, for itself, the 
frequency of its safety plan reviews and updates each year, and the 
process for doing so. Each transit agency must certify compliance with 
these requirements through its annual Certifications and Assurances to 
FTA.
    FTA disagrees with the commenters who proposed that the annual 
review period for the safety plans be changed to a less frequent time 
period, such as two years, three years, four years, or five years. The 
statutory provisions of 49 U.S.C. 5329(d)(1)(D) do not provide that 
latitude. Notwithstanding the statute, as a matter of a best safety 
practice, FTA believes that each transit agency should annually review 
its process for hazard identification and risk analysis in an effort to 
prevent safety events. As a transit agency collects data through the 
hazard identification and risk analysis processes, the transit agency 
should be evaluating its safety performance targets to determine 
whether they need to be changed, as well.
    FTA agrees with the commenter who suggested that along with an 
annual review, a transit agency should update its safety plan at any 
point when risk assessments result in the need for substantial safety 
mitigation, or if there are significant changes to asset inventory, 
condition assessments, or investment prioritization.
    Regarding the annual reviews of SSPPs, FTA notes that under its new 
public transportation safety program, the requirements for SSPPs under 
the former regulatory provisions of FTA's SSO rule at 49 CFR part 659 
have been eliminated. Today's requirement for a PTASP under 49 CFR part 
673 replaces the old requirement for an SSPP under 49 CFR part 659. 
Therefore, annual reviews of the PTASP now will be required, and SSPPs 
will become obsolete for rail transit agencies one year after the 
effective date of this final rule.
    Finally, regarding the National Public Transportation Safety Plan, 
FTA will update the National Public Transportation Safety Plan when it 
believes it is necessary to do so, based on safety needs in the public 
transportation industry. FTA notes that it must make any changes to the 
National Public Transportation Safety Plan through the public notice 
and comment process, and the transit industry will have the opportunity 
to provide input on any changes to this document. Furthermore, FTA 
believes that changes to the National Public Transportation Safety Plan 
will not necessarily cause transit agencies to update their PTASPs. 
Currently, the National Public Transportation Safety Plan and the 
Public Transportation Agency Safety Plans are linked through the 
requirements for performance targets in agency safety plans based on 
the performance measures in the National Public Transportation Safety 
Plan.
7. Emergency Preparedness and Response Plans
    Comments: Pursuant to the proposed provisions of 49 CFR 
673.11(a)(6), each rail transit agency would be required to include an 
emergency preparedness and response plan in its safety plan. Although a 
commenter noted that there is no statutory language in 49 U.S.C. 5329 
which requires emergency preparedness and response plans, the commenter 
agreed that this type of plan is important and should be included in 
safety plans. One commenter supported the requirement that transit 
agencies develop a plan for the delegation of responsibilities during 
an emergency, but encouraged FTA to include in the final rule a 
requirement that ensures transit agencies provide adequate training for 
workers responsible for tasks during emergencies.
    Two commenters suggested that FTA should provide transit agencies 
with the option of separating their safety plans and their emergency 
preparedness and response plans, developing them as two separate 
documents. One of these commenters suggested that these documents are 
fundamentally different and the emergency preparedness and response 
plan contains information that should not be widely distributed. One of 
these commenters suggested that some transit agencies that have not 
previously complied with 49 CFR part 659 may have difficulty developing 
a robust emergency preparedness and response plan. This commenter also 
stated that FTA should take into consideration the time and resources 
needed to develop a comprehensive emergency response plan by publishing 
templates for these plans, offering assistance to those transit 
agencies developing them for the first time, and extending the 
implementation deadline for this final rule. Another commenter 
requested clarification regarding whether this final rule would require 
a System Security Plan and an emergency preparedness and response plan 
to be separate documents.
    One commenter suggested that FTA revise the rule to allow a transit 
agency to include or reference the emergency preparedness and response 
plan in its safety plan. This commenter said this revision would be 
consistent with the intent of FTA in the Section-by-Section Analysis 
portion of the NPRM which states that this section would require that 
each rail transit agency ``include, or incorporate by reference'' the 
emergency preparedness plan in its safety plan.
    Another commenter asked FTA to clarify the relationship between the 
emergency preparedness and response plans required in this rule to the 
emergency preparedness and response plans required in the former SSO 
provisions of 49 CFR 659.19(k).
    Response: Although the statutory provisions of 49 U.S.C. 5329 do 
not require emergency preparedness and response plans, FTA's State 
Safety Oversight Rule historically has required rail transit agencies 
to have emergency preparedness and response plans as part of their 
SSPPs. Since rail transit agencies already have these plans in place, 
FTA is carrying over the requirement for those plans into today's rule. 
FTA's intent is to make transit safer, not to make transit less safe by 
eliminating historical requirements that have proven to be effective. 
FTA acknowledges the potential burdens on transit agencies that do not 
have these plans in place, and therefore, FTA only is requiring 
emergency preparedness and response plans from rail transit agencies, 
which should already have them in place. FTA agrees with the commenter 
who suggested that these plans are important, as recent safety events 
have demonstrated the need and utility of emergency preparedness and 
response plans, particularly for rail transit systems.
    FTA agrees that rail transit agencies should develop plans to 
include the delegation of responsibilities during an emergency. FTA is 
deferring to transit agencies on how to document their emergency 
preparedness and response plans, and FTA will allow transit agencies to 
combine, include, incorporate by reference, or separate their emergency 
preparedness and response plans and their safety plans.
    FTA is issuing templates and guidance for safety plans concurrently 
with the issuance of today's final rule. FTA intends to develop 
guidance specific to emergency preparedness and response plans in the 
future. FTA also will provide technical assistance to rail transit 
agencies that are modifying or developing emergency preparedness and 
response plans.
    FTA notes that it no longer is requiring System Security Plans as 
previously required for rail transit agencies under the former 
regulatory

[[Page 34434]]

provisions of 49 CFR part 659--the responsibility for the oversight of 
transit security resides with the U.S. Department of Homeland 
Security's Transportation Security Administration (TSA). However, to 
the extent that a transit agency has a security plan, FTA will allow a 
transit agency to incorporate the security plan into its safety plan, 
if the transit agency desires.
    In light of the above, FTA is revising the language in today's 
final rule to match the intent referenced in the NPRM's Section-by-
Section Analysis, which states that each rail transit agency is 
required to ``include, or incorporate by reference'' an emergency 
preparedness and response plan in its safety plan. FTA directs readers 
to its SSPP-PTASP Crosswalk interim guidance document for further 
information on the relationship between SSPPs and PTASPs (https://www.transit.dot.gov/sites/fta.dot.gov/files/docs/PTSP_NPRM_SSPP_Side_by_Side.pdf). Additional guidance will be 
forthcoming, and FTA will post it on its website (see https://www.transit.dot.gov/regulations-and-guidance/safety/transit-safety-oversight-tso).
8. Multiple Modes of Transit Service
    Comments: A few commenters supported FTA's proposed flexibility for 
transit agencies to develop one safety plan for all modes of transit. A 
couple of commenters stated that they would develop one safety plan for 
all modes. One of these commenters stated that updating and monitoring 
several plans is unrealistic and increases the workload and approval 
processes. This commenter also asked if FTA would issue rules specific 
to locally operated transit systems.
    A couple of commenters encouraged the use of one safety plan that 
encompasses all modes of transportation. A commenter stated that if a 
transit agency develops one safety plan for all transportation modes, 
then that transit agency should identify those portions of its system 
that are regulated by another Federal entity and include any additional 
requirements from those Federal entities in the safety plan.
    One commenter suggested that safety plans for all transit modes 
creates a difficult regulatory process for SSOAs, since SSOAs have 
regulatory authority over the rail mode only. This commenter 
recommended that FTA require rail transit agencies to develop a 
separate plan for rail, since the safety plan must be submitted to the 
SSOA for review and approval. Alternatively, the commenter requested 
that FTA include specific processes for SSOAs and rail transit agencies 
when dealing with a single plan covering multiple modes.
    Response: FTA agrees with and appreciates the commenters who would 
like the flexibility to either have one safety plan or multiple safety 
plans for multiple modes of transit service. As FTA stated in the NPRM, 
it intends to allow flexibility and choice so that transit agencies may 
draft multiple plans or only one plan, as there are many different 
sizes and types of transit agencies--a single plan may work better for 
some agencies, whereas multiple plans for multiple modes of transit 
service may work better for others (especially the larger transit 
agencies that have multiple divisions and operate commuter rail, heavy 
rail, light rail, bus, and other transit modes).
    FTA disagrees with commenters who would like to develop a single 
plan for all modes of transportation service, particularly service that 
is regulated by another Federal entity, such as FRA. Other Federal 
regulators may have specific requirements for safety plans that fall 
under their jurisdiction that may conflict with this final rule. 
Notably, FRA's statutory and regulatory framework for rail safety 
provides data protection in safety plans; FTA's statutory and 
regulatory framework does not. FTA is concerned that combining PTASPs 
and FRA-regulated safety plans would result in a loss of that data 
protection for the rail safety covered by FRA. Therefore, FTA will not 
allow a transit agency to combine its PTASP with a safety plan for 
service regulated by another Federal agency.
    FTA disagrees that SSOAs will have difficulty approving safety 
plans that address rail and bus service. Indeed, SSOAs have regulatory 
authority over rail transit service only, and SSOAs should review only 
the rail components of safety plans. FTA will provide additional 
guidance and training in the future to assist SSOAs with their review 
and oversight of PTASPs and SMS.

D. State and Transit Agency Roles

1. Large Transit Agencies
    Comments: One commenter recommended that the rule detail the 
requirements applicable to large transit agencies.
    Response: Pursuant to this rule, every operator of a public 
transportation system--large and small--must comply with each of the 
requirements outlined in today's final rule, unless the operator only 
receives Section 5310 and/or Section 5311 funds. All sections and 
requirements of this rule as outlined in 49 CFR part 673 are applicable 
to large transit agencies, specifically, rail fixed guideway public 
transportation systems and recipients and subrecipients of FTA funds 
under 49 U.S.C. Chapter 53 that operate more than 100 vehicles in peak 
revenue service.
2. Small Public Transportation Providers, Section 5311 Providers, and 
Section 5310 Providers
2.1. States Must Draft and Certify Safety Plans on Behalf of Small 
Public Transportation Providers
2.1.1. Option for State-Wide or Agency-Specific Safety Plans
    Comments: Several commenters responded to FTA's question as to 
whether FTA should require States to draft a single state-wide plan; 
individual safety plans for each Section 5310, Section 5311, and small 
public transportation provider located within that State; or defer to 
the State's preference. A few commenters recommended that each State 
should have the flexibility to choose whether the State will develop 
and certify a single state-wide plan or draft individual safety plans 
on for each agency. One commenter stated that the State should be 
required to draft an umbrella plan for more than just ``small public 
transportation providers'' and an agency can choose to use that plan or 
develop their own plan that complies with the overarching plan. Another 
commenter stated that state-wide plans should be generic and that 
States should develop an SMS that would be flexible enough to meet the 
needs of each of the individual transit agencies within their 
jurisdictions. This commenter also asked what might happen when a 
transit agency's safety plan differs from another transit agency's 
safety plan drafted by their State. One commenter suggested a 
``hybrid'' approach whereby the State may draft a single safety plan, 
and include appendices that incorporate unique situations for certain 
transit agencies. Another commenter suggested that if a State develops 
a state-wide plan, then all transit providers should be required to 
provide copies of their plans and self-certifications to the State.
    One commenter asserted that small urban and rural operations likely 
will be different, and if a State must draft separate safety plans for 
each transit agency, then this effort will be burdensome. On the other 
hand, the commenter asserted, if the State drafts only a single safety 
plan for all transit agencies under this regulatory provision, then the 
safety plans may be ineffective and meaningless.
    In response to FTA's question as to how a single state-wide safety 
plan could respond to the Safety Risk

[[Page 34435]]

Management component of SMS (such as the identification of risks and 
hazards for each unique transit agency), several commenters stated 
there are already processes in place at State Departments of 
Transportation that can integrate individual SMS components of Safety 
Risk Management for small bus public transportation providers to enable 
the drafting of a state-wide agency safety plan.
    Response: To provide maximum flexibility for States and transit 
providers, FTA is deferring to the States and the small public 
transportation providers within those States to determine whether each 
State will draft and certify a single state-wide safety plan for all 
small public transportation providers or whether it will draft and 
certify multiple individualized safety plans for each of these transit 
operators. FTA recommends as a best practice that each State draft and 
certify individualized safety plans on behalf of each of these small 
public transportation providers given the inherently unique safety 
concerns, issues, hazards, and risks for each transit operator. If a 
State drafts a single state-wide safety plan, then the State must 
ensure that the plan clearly identifies each transit operator that the 
plan will cover, the names of the Accountable Executives and Chief 
Safety Officers, the safety performance targets for each transit 
operator (and determined in conjunction with each operator), and the 
hazard identification, risk analysis, Safety Assurance, and other SMS 
processes for each transit operator (and developed in conjunction with 
each transit operator).
    FTA notes that, in this rule, States are not required to draft and 
certify safety plans on behalf of transit operators that only receive 
Section 5310 and/or Section 5311 funds. As discussed above, FTA is 
deferring regulatory action regarding the applicability of this rule on 
these operators until a later date.
2.1.2. Drafting and Certifying Safety Plans for Small Section 5307 
Providers
    Comments: Several commenters suggested that States should not be 
required to draft and certify safety plans for small Section 5307 
providers in large urbanized areas because these providers are not 
subrecipients of funds apportioned to States, they have a direct 
funding relationship with FTA, States do not review their grant 
applications, States do not review their NTD reports, and States do not 
provide their oversight.
    A few of these commenters only supported the requirement that 
States draft and certify safety plans on behalf of open door Section 
5310 and Section 5311 subrecipients. A couple of commenters supported 
the requirement that a State draft and certify safety plans on behalf 
of small Section 5307 providers operating 100 or fewer vehicles, as 
long as the final rule clarifies that the ``100 vehicles in revenue 
service'' criteria applies only to Section 5307 recipients, not Section 
5310 or Section 5311 recipients.
    Response: FTA notes that 49 U.S.C. 5329(d)(3)(B) provides that 
States may draft or certify safety plans on behalf of ``small public 
transportation providers'' that receive Section 5307 funds, even 
though, for recipients in large urbanized areas, no funding 
relationship exists between the States and those small Section 5307 
recipients. In response to comments and to ensure consistency across 
FTA's safety rules and Transit Asset Management rule, FTA is defining 
``small public transportation provider'' to mean ``a recipient or 
subrecipient of Federal financial assistance under 49 U.S.C. 5307 that 
has one hundred (100) or fewer vehicles in peak revenue service and 
does not operate a rail fixed guideway public transportation system.'' 
A small Section 5307 provider may opt to draft and certify its own 
safety plan.
    FTA notes that it received numerous comments requesting reduced 
requirements for small public transportation providers. Given their 
limited resources, FTA believes that a reduction in requirements for 
small public transportation providers is appropriate, and to that end, 
FTA eliminated Safety Assurance requirements for all small public 
transportation providers under 49 CFR 673.27(a).
2.2. Other Comments
    Comments: One commenter expressed a concern about potential 
conflicts of interest regarding the drafting and certifying of safety 
plans. This commenter stated that if a State drafts and certifies a 
safety plan on behalf of a transit operator, and if the State is also 
the grant manager for the transit agency using the safety plan, then 
the State may monitor compliance with the safety plan that it drafted 
through grant compliance reviews. The commenter suggested that this 
situation may create a conflict of interest, similar to the conflict of 
interest that would arise if an SSOA drafted and certified a safety 
plan on behalf a rail transit agency subject to its jurisdiction.
    One commenter asked whether a small transit provider may continue 
to use its safety plan drafted by its State if it grows to a size where 
it no longer would be considered small. In this scenario, the commenter 
asked how much time the transit provider would have to draft and 
certify a new safety plan.
    One commenter recommended that FTA clarify the definition of the 
term ``State'' so that SSOAs would not draft or develop a transit 
agency's safety plan if a conflict of interest exists. Additionally, 
the commenter suggested adding the following language at the end of 
section 49 CFR 673.11: ``the State Safety Oversight Agency cannot be 
involved in the development of the Public Transportation Agency Safety 
Plans they are charged with overseeing.''
    Response: FTA disagrees with the commenter who suggested that a 
potential conflict of interest would exist if a State drafted and 
certified a safety plan on behalf of a small transit provider. The 
funding relationships created by Congress differ from the new safety 
relationships in 49 U.S.C. 5329(d). From a federal perspective, the 
State has no role in safety enforcement or oversight of small Section 
5307 providers. For rail transit agencies, the SSOAs serve in a 
different, independent role, and they are required by 49 U.S.C. 5329(e) 
to provide enforcement. Moreover, as a legal matter, the statutory 
provisions of 49 U.S.C. 5329(d) require States to draft and certify 
safety plans on behalf of small Section 5307 providers.
    If a transit agency grows in size so that it no longer is 
considered ``small,'' then it would have one year to draft and certify 
its own safety plan. The safety plan developed by the State would 
remain in effect until the transit agency drafts its own safety plan.
    Finally, FTA does not agree that the rule text should be clarified 
to distinguish between a State's role and an SSOA's role in the 
development and certification of safety plans. The rule provides that a 
State must draft and certify safety plans only on behalf of small 
public transportation providers that do not operate rail service, and 
that an SSOA must review and approve a rail transit agency's safety 
plan.
3. Small Transit Providers May Draft and Certify Their Own Safety Plans
    Comments: Many commenters asserted that, when a transit agency 
``opts out'' of the state-wide safety plan and drafts and certifies its 
own plan, then the final rule should clarify that the State has no 
further obligation related to the safety plan.
    One commenter observed that the ``opt out'' provision places the 
decision on a State's responsibilities in the hands

[[Page 34436]]

of its subrecipients instead of the State, which is where that 
responsibility exists in the context of funding relationships. The 
commenter recommended that FTA clarify in the final rule that the State 
is responsible for its own safety plan and for those of its 
subrecipients, and that the determination of whether the State will 
draft plans for its subrecipients remains at the discretion of the 
State.
    Response: If a transit agency ``opts out'' and decides to draft and 
certify its own safety plan, then the State has no further 
responsibility regarding that safety plan and the transit agency may 
seek guidance and technical assistance directly from FTA. FTA disagrees 
with the commenter who suggested that States should have the discretion 
to draft and certify safety plans. In an effort to reduce the 
administrative and financial burdens of small public transportation 
providers, and given the statutory requirements of 49 U.S.C. 5329(d), 
FTA is requiring States to draft and certify safety plans on behalf of 
small Section 5307 recipients and subrecipients. FTA is providing those 
recipients and subrecipients with the discretion to ``opt out'' of this 
arrangement (however, the State will not have the option to ``opt 
out,'' as this discretion lies with the small transit operator).
4. Direct and Designated Recipients Drafting and Certifying Safety 
Plans on Behalf of Smaller Transit Providers
    Comments: Several commenters responded to FTA's question about 
whether a Section 5310 recipient should draft and certify their own 
safety plans if they are direct recipients, instead of having the 
States draft and certify their safety plans on their behalf. Many 
commenters stated that the designated or direct recipient should have 
this responsibility for themselves, given the fact that they do not 
receive their funds through the State under recent changes to the 
Section 5310 program under the FAST Act. One commenter supported the 
idea of having designated recipients draft and certify their own safety 
plans, as well as their subrecipients, only if the plans are based on 
templates provided by FTA. One commenter asked whether the State or the 
transit agency should be responsible for reviewing safety plans when a 
subrecipient receives funding through the transit agency and not the 
State.
    Response: FTA appreciates the comments that it received regarding 
this issue. In light of the public comments that FTA received regarding 
the application of this rule to Section 5310 and Section 5311 
recipients, FTA is deferring regulatory action regarding the 
applicability of this rule to operators of public transportation 
systems that only receive Section 5310 and/or Section 5311 funds. 
Further evaluation of information and safety data related to these 
operators is needed to determine the appropriate level of regulatory 
burden necessary to address the safety risk presented by these 
operators. At this time, the rule does not apply to an operator of a 
public transportation system that only receives Federal financial 
assistance under 49 U.S.C. 5310, 49 U.S.C. 5311, or both 49 U.S.C. 5310 
and 49 U.S.C. 5311. Consequently, States are not required to draft and 
certify safety plans on behalf of operators of public transportation 
systems that only receive Section 5310 and/or Section 5311 funds.
    Consistent with the statutory provisions of 49 U.S.C. 
5329(d)(3)(B), a State still has the responsibility of drafting and 
certifying safety plans on behalf of small Section 5307 recipients, 
unless they opt to draft and certify their own safety plans. To ease 
the burdens with these efforts, FTA is issuing a safety plan template 
with today's rule to assist States and smaller operators with the 
drafting and certification of their plans.

E. Existing System Safety Program Plan Is Effective for One Year

1. General Comments
    Comments: A couple of commenters suggested that the final SSO rule 
and the proposed PTASP rule are contradictory in terms of 
implementation deadlines, and they recommended that FTA allow an SSPP 
to remain in effect until an SSOA has approved a rail transit agency's 
new PTASP. One of these commenters stated that FTA should remove all 
requirements involving SSPPs from the final PTASP rule. One commenter 
asked if a rail transit agency must keep its SSPP and reference it in 
its PTASP.
    Response: FTA acknowledges that the compliance dates in the final 
SSO rule at 49 CFR part 674 differ from those in the PTASP rule at 49 
CFR part 673. These compliance dates are creations of statute. Pursuant 
to 49 U.S.C. 5329(e)(3), each State must have an SSO program compliant 
with the new SSO rule within three years after the effective date of 
that final rule. Pursuant to 49 U.S.C. 5329(d)(1), each operator of a 
public transportation system must have a PTASP compliant with the new 
PTASP rule within one year after the effective date of this final rule.
    Although these compliance dates differ, an SSOA can apply the 
regulatory requirements of the PTASP rule and ultimately review and 
approve a PTASP based on those requirements, even if it has not fully 
developed its new program standard in accordance with the new SSO rule. 
As demonstrated through the SSPP-PTASP Crosswalk that FTA posted to 
this rulemaking docket, the substantive elements of the old SSPPs carry 
over into the SMS portions of PTASPs. The same basic requirements 
exist, albeit, reshuffled into a different format that is intended to 
more effectively address safety risks. Finally, the staff of SSOAs have 
been taking training courses in SMS in accordance with the interim rule 
for the Public Transportation Safety Certification Training Program. 
Given the above, FTA expects each SSOA to review and approve each PTASP 
of a rail transit agency within its jurisdiction, even if it has not 
fully complied with the new SSO rule at 49 CFR part 674.
    Ultimately, the SSPP will become obsolete one year after the 
effective date of this final rule, and an agency's PTASP will replace 
the SSPP. However, if a transit agency would like to maintain the SSPP 
and use it as a reference document, it may do so. FTA only will conduct 
oversight, including Triennial and State Management Reviews, to ensure 
that a transit agency's PTASP complies with this rule, not its former 
SSPP. Given the April 15, 2019 deadline for updated SSO Programs under 
49 CFR 674.11, FTA believes that the effective date and compliance date 
of today's final rule will provide rail transit agencies and their 
SSOAs with more time to harmonize their safety plans and program 
standards before they are finalized.
2. One-Year Compliance Timeframe
    Comments: Several commenters provided input on the one-year 
compliance timeframe for the proposed rule. One commenter expressed 
support for the one-year compliance period, but stated that transit 
agencies may need more than one year to draft their safety plans, hire 
and train the necessary personnel, and certify the plan.
    Some commenters stated that FTA should provide a longer compliance/
implementation period for the rule. Several of these commenters 
remarked that the proposed compliance period is aggressive and may lead 
to rushed or subpar safety plans with limited SMS training for staff. 
The commenters also suggested that a longer compliance period may be 
necessary given the requirements for a signature from the Accountable 
Executive and approval from a Board of Directors. One commenter 
suggested that,

[[Page 34437]]

notwithstanding Federal requirements, State legislatures may not be 
able to amend State safety requirements prior to the compliance 
deadline for this rule, which may force some transit agencies to create 
two safety plans for purposes of Federal and State law, or be in non-
compliance with the Federal and State laws.
    Most commenters provided suggestions for an alternative compliance 
deadline, with many commenters suggesting that FTA extend the 
compliance deadline to two years. Several commenters suggested that FTA 
extend the compliance deadline or allow for a multi-part implementation 
or a transitional grace period for agencies to show progress with the 
development of their safety plans. A couple of commenters recommended 
that FTA extend the compliance period until one year after FTA issues 
templates for safety plans. One commenter stated that the compliance 
deadline for this rule should be tied to the finalization of the 
National Public Transportation Safety Plan. Several commenters also 
suggested aligning the compliance deadline of this rule with the two-
year compliance deadline for the Transit Asset Management rule.
    Response: As a preliminary matter, FTA notes that many commenters 
referred to the ``implementation'' deadline of this final rule, as 
opposed to the rule's ``compliance'' deadline. The compliance deadline 
is the date by which transit operators and States must comply with the 
final rule and have a safety plan in place. FTA emphasizes that this 
rule implements a statutory requirement that each operator of a public 
transportation system draft and certify a safety plan within one year 
after the effective date of this final rule. The safety plan must 
include all of the information, processes, and procedures as outlined 
in this rule. FTA expects each operator of a public transportation 
system to ``implement'' the processes and procedures outlined in its 
safety plan after it drafts and certifies that plan in accordance with 
this rule. That implementation should take place continually, and the 
implementation, particularly the implementation of SMS, should mature 
over time. But to comply with this rule, each operator of a public 
transportation system must draft and certify a safety plan within one 
year after the effective date of this final rule--that one-year 
deadline is the ``compliance'' deadline for this rule.
    The one-year compliance deadline was created by the statutory 
provisions of 49 U.S.C. 5329(d)(1), and FTA does not have the 
flexibility to extend it. Nevertheless, FTA does not expect that all 
transit agencies will have fully implemented SMS one year after the 
effective date, but rather, FTA expects that transit agencies will have 
the processes and procedures put in place for SMS, including hazard 
identification, risk analysis, and the Safety Assurance procedures as 
outlined in Subpart C of this rule. The full implementation of SMS may 
take longer, in some cases years to fully mature in large multi-modal 
transit agencies. FTA is providing more guidance on how a transit 
agency may fully implement a mature SMS in the National Public 
Transportation Safety Plan, and it intends to provide additional 
guidance and technical assistance to the industry in the future.
    FTA appreciates the comments that it received suggesting that 
transit agencies may need more than one year to certify compliance with 
the rule. Although, by statute, the compliance deadline must be one 
year from the rule's effective date, FTA has discretion on setting the 
effective date itself. In response to the public comments and in an 
effort to assist the industry with meeting the requirements of this 
rule, FTA is making the effective date one year after its publication 
date. As a result, transit agencies will have a total of two years (one 
year from the publication date to the effective date, plus another year 
from the effective date to the compliance deadline) to certify that 
they have safety plans meeting the requirements of 49 CFR part 673.

F. Certification of Safety Plans

    Comments: Several commenters requested additional information on 
how agencies may certify compliance with this rule and what this 
certification means. One commenter remarked that the rule contains 
neither a definition nor an explanation of the term ``certification'' 
or ``certify.'' Two commenters questioned how an agency may certify 
their safety plans if FTA may adopt additional performance measures in 
the future.
    One commenter expressed concern with self-certification, asserting 
that self-certification is not a reliable method for establishing 
effective safety management by public transportation providers. This 
commenter suggested that each transit agency should submit its safety 
plan to FTA for approval and certification so that FTA could verify 
that the plan satisfies the statutory and regulatory requirements.
    Several commenters expressed concern over the one-year 
certification timeline, indicating that one year may not be enough time 
for transit agencies to certify compliance with the rule. One commenter 
suggested that FTA lengthen the certification period to two years, 
which would provide agencies with additional time and align the 
certification deadline for the compliance deadline for developing 
transit asset management plans as outlined in the TAM rule.
    One commenter urged FTA to clarify the process by which a State 
should certify a safety plan on behalf of a Section 5310, Section 5311, 
or small Section 5307 recipient or sub-recipient. Additionally, the 
commenter asked who would conduct oversight on a safety plan if a small 
transit agency opts out of any plan developed by a State.
    Response: As a statutory matter, pursuant to 49 U.S.C. 5329(d)(1), 
each recipient or State must ``certify'' that the recipient or State 
has established a comprehensive agency safety plan. Pursuant to 49 
U.S.C. 5323(n), each recipient must submit to FTA a list of 
``Certifications and Assurances'' as part of the grant award and 
oversight process during each fiscal year. FTA will use this existing 
Certifications and Assurances process to satisfy the statutory 
requirement for safety plan certifications. FTA has added a section to 
the list of Certifications and Assurances to address safety. FTA will 
issue future guidance on how States can certify safety plans and 
transit asset management plans on behalf of transit operators.
    To the extent that FTA amends the National Public Transportation 
Safety Plan in the future, or any of its regulatory requirements in 
general, FTA will amend the annual list of Certifications and 
Assurances, as necessary.
    FTA appreciates concerns regarding the self-certification process; 
however, FTA does not have the resources to collect and review hundreds 
of safety plans each fiscal year. Consequently, FTA intends to utilize 
its existing risk-based approach to oversight by using its Triennial 
Reviews and State Management Reviews to ensure compliance with this 
rule. FTA notes that it does not need to wait to review a safety plan 
every three years. FTA may review an agency's safety plan whenever it 
deems necessary.
    As noted above, in response to the public comments and in an effort 
to assist the industry with meeting the requirements of this rule, FTA 
is making the effective date one year after its publication date. As a 
result, transit agencies will have a total of two years from the rule's 
publication date to certify that they have safety plans meeting the 
requirements of 49 CFR part 673.

[[Page 34438]]

G. SSOA Review and Approval of PTASPs for Rail Transit Systems

    Comments: Pursuant to the proposed provisions at 49 CFR 673.13(a), 
each SSOA would be required to review and approve a PTASP developed by 
a rail fixed guideway system. Some commenters expressed concern with 
the one-year deadline that a transit agency has to certify its PTASP 
and the three-year deadline that an SSOA has to comply with the new SSO 
rule at 49 CFR part 674. One commenter recommended that FTA should 
allow rail transit agencies to certify compliance with the PTASP rule 
one year after the relevant SSOA develops its program standard pursuant 
to 49 CFR part 674. Several commenters questioned whether a rail 
transit agency must submit its PTASP to the SSOA by one year after the 
PTASP final rule's effective date, or whether the SSOA must approve the 
agency's PTASP by one year after the PTASP rule's effective date. 
Several commenters urged FTA to clarify whether SSOAs must update their 
program standards prior to approving rail transit safety plans since 
most SSOAs will be operating under a program standard based on 49 CFR 
part 659 when the PTASP final rule becomes effective.
    A few commenters requested FTA to clarify the role of an SSOA with 
respect to PTASP certification. One commenter suggested that a PTASP 
should not be executed without SSOA approval. Several commenters 
suggested that FTA develop guidance for obtaining SSOA approval and a 
resolution process for situations in which a rail transit agency 
certifies compliance and then an SSOA does not approve the safety plan. 
Several commenters requested clarification of an SSOA's approval power 
and role, with a couple of these commenters encouraging FTA to modify 
the rule's text to make clear that SSOAs only have authority over rail 
transit systems. One commenter recommended that FTA require transit 
agencies that operate rail and bus service to develop separate safety 
plans for rail and bus service so that it is easier for SSOAs to 
approve the plans for rail safety.
    A few commenters stated that FTA should define the SSOA's role and 
responsibilities in approving plans that contain modes of service not 
subject to state specific oversight rules, such as rules for bus 
transit. The commenters argued that while SSOAs are responsible for the 
review and approval of rail transit plans, FTA's proposed rule only 
specifies that bus agencies will self-certify.
    Several commenters expressed concerns over the requirement to have 
the transit agency's Board of Directors and the SSOA approve the safety 
plan, fearing that this two-tiered review process could subject plans 
to conflicting evaluation criteria, which could weaken plans and cause 
delays in implementation.
    One commenter suggested that FTA should clarify that SSPPs will 
become obsolete.
    Response: As a preliminary matter, FTA notes that the comments 
above regarding state safety oversight are more appropriately addressed 
through FTA's SSO rule at 49 CFR part 674, which governs the activities 
of SSOAs. FTA's PTASP rule governs the activities of operators of 
public transportation systems. Nevertheless, to provide the industry 
with additional clarification regarding the role of SSOAs, FTA provides 
the responses below.
    Through FTA's new SSO rule at 49 CFR part 674, each SSOA has a 
great deal of flexibility regarding the timing of its approval of a 
PTASP within its jurisdiction. Pursuant to the new rule, each SSOA is 
obliged to ``adopt and distribute a written SSO program standard'' 
consistent with the National Public Transportation Safety Plan and the 
PTASP rule (49 CFR 674.27(a)); ``explain'' an SSOA's ``role . . . in 
overseeing'' a rail transit agency's ``execution of its Public 
Transportation Agency Safety Plan'' (49 CFR 674.27(a)(4)); and 
``describe the process whereby the SSOA will receive and evaluate all 
material submitted under the signature of [a rail transit agency's] 
accountable executive'' (49 CFR 674.27(a)(4)). Given these 
requirements, an SSOA could choose to ``approve'' a PTASP at virtually 
any point in time, and as often as it might like. FTA expects each SSOA 
to develop its program standard in consultation with the rail transit 
agencies within the SSOA's jurisdiction. FTA intends to provide 
deference to the State decision makers on this matter.
    Optimally, an SSOA would have its program standard in place before 
reviewing the merits of a rail transit agency's PTASP, but it is not 
necessary, as a matter of law. An SSOA still operating under the old 
SSO rule at 49 CFR part 659 and transitioning to the new SSO rule at 49 
CFR part 674 still can judge the adequacy of a rail transit agency's 
PTASP by applying the standards and regulatory requirements set forth 
in the new rules at 49 CFR parts 673 and 674.
    Through the new SSO rule, FTA addresses scenarios in which an SSOA 
does not approve a PTASP. Pursuant to 49 CFR 674.29(c), ``In an 
instance in which an SSOA does not approve a Public Transportation 
Agency Safety Plan, the SSOA must provide a written explanation, and 
allow the [rail transit agency] an opportunity to modify and resubmit 
its . . . Plan for the SSOA's approval.'' This mechanism should lead to 
negotiations that resolve disagreements between an SSOA and a rail 
transit agency. In those instances in which an SSOA and a rail transit 
agency continue to disagree in good faith, FTA may step into the 
dispute to help the issue. If a rail transit agency is comfortable 
certifying its own compliance with the rules, but it receives 
objections or disapprovals from its SSOA, then FTA could take 
regulatory enforcement action under the Public Transportation Safety 
Program rule at 49 CFR part 670 (see https://www.gpo.gov/fdsys/pkg/FR-2016-08-11/pdf/2016-18920.pdf), as necessary and appropriate, to ensure 
compliance with the PTASP rule.
    It is abundantly clear in 49 U.S.C. 5329(e) and FTA's new SSO rule 
at 49 CFR part 674 that an SSOA only has jurisdiction over a ``rail 
fixed guideway public transportation system'' that is not subject to 
regulation by FRA. Consequently, when reviewing a PTASP for an agency 
that operates rail fixed guideway public transportation and bus public 
transportation, an SSOA should focus its review on the rail fixed 
guideway public transportation system only, given the fact that as a 
legal matter, Federal law does not give an SSOA the authority to 
regulate the safety of bus systems. Unless provided by State law, an 
SSOA has no legal authority to compel a transit agency to change its 
safety practices for bus operations. FTA disagrees with the commenters 
who believe that FTA should require separate safety plans for rail and 
bus; FTA will defer to each transit agency to decide whether it is more 
appropriate for their system to have a single plan covering rail and 
bus (and other modes of transit) or whether to have multiple plans for 
each mode of transit.
    Finally, FTA re-emphasizes that every operator of a public 
transportation system subject to this rule, or State, must certify 
compliance with this rule, whether it provides rail transit service, 
bus transit service, or other modes of transit service. SSPPs will 
become obsolete one year after the effective date of this final rule.

H. Safety Performance Targets and Performance-Based Planning

    Comments: Pursuant to the proposed provisions at 49 CFR 673.15, 
each

[[Page 34439]]

transit agency or State would be required to make its safety 
performance targets available to States and MPOs to aid in the planning 
process, and each transit agency or State would be required to 
coordinate with States and MPOs in the selection of safety performance 
targets.
    Several commenters generally supported the coordination provisions. 
One commenter supported flexibility in the target-setting process and 
coordination of targets between the State, regional, and transit agency 
levels. One commenter was encouraged that FTA acknowledged the vital 
role of the planning process in safety management and recommended that 
the Transit Asset Management Plans also be included in the coordination 
process.
    A couple of commenters asked FTA to explain the purpose of 
communicating safety performance targets to States and MPOs. One 
commenter asked FTA to clarify the MPO's role in the planning process, 
stating that if an MPO has any approval or review authority of safety 
performance targets, then an MPO should be required to have the same 
safety expertise and training as an SSOA.
    Several commenters asked whether a transit agency only would be 
required to make its targets available to a State and an MPO, or 
whether it also would be required to make the supporting performance 
data pertaining to those targets available to a State and an MPO. One 
commenter suggested that FTA avoid creating this requirement or to make 
a general requirement that transit agencies cooperate with States and 
MPOs in the planning process.
    Several commenters expressed concerns with requiring coordination 
among planning organizations. They argued that this coordination would 
be unreasonably burdensome on some transit agencies. Several commenters 
argued that these provisions are not required by statute and that MPOs 
generally do not operate transit service and do not have transit 
operations and safety expertise or experience. Several commenters 
suggested that coordination should be revised to a ``consultation'' 
requirement. One commenter recommended that FTA delete these 
requirements, and that planning coordination should be encouraged 
through guidance instead.
    Several commenters requested clarification on how a State or 
transit agency should coordinate with MPOs and States to select safety 
performance targets. One of these commenters argued that if by 
``coordination,'' FTA's intent is that a transit agency share its PTASP 
(which will include performance targets) with States and MPOs, then FTA 
should clearly state such a requirement. Additionally, the commenter 
stated that the proposed rule did not specify which State agencies, 
other than MPOs, transit agencies are expected to coordinate with.
    Several commenters asked which accountability measures will be used 
to ensure that coordination is occurring ``to the maximum extent 
practicable.'' One commenter asked what recourse an MPO would have if 
the State or transit operator chooses not to coordinate on target 
setting, claiming there is not a ``practicable'' way to do so. The 
commenter argued that the rule must recognize that target setting 
across multiple functions and dimensions would require an extremely 
robust degree of coordination and suggested removing that phrase.
    One commenter stated that the proposed rule does not identify the 
responsibilities of the State in the planning process. Another 
commenter asked whether States and MPOs would be required to keep 
confidential any information related to safety performance targets.
    One commenter stated that it is unclear how the development of 
performance targets at the State and MPO levels will impact individual 
transit agency targets in the future, particularly when FTA may develop 
safety performance targets under a separate NPRM. This commenter also 
said it is unclear how the State and MPO safety performance targets 
would impact individual transit agency safety plans, as these are to be 
determined at the local level by each individual transit agency.
    Response: FTA appreciates the comments that it received in support 
of its proposed safety performance target provisions. FTA emphasizes 
that these requirements are rooted in the statutory provisions of 49 
U.S.C. 5329(d)(1)(E), which requires each operator of a public 
transportation system subject to this rule to include in its PTASP 
``performance targets based on [FTA's] safety performance criteria and 
state of good repair standards.'' Moreover, the statutory provisions of 
49 U.S.C. 5303(h)(2)(B) and 49 U.S.C. 5304(d)(2)(B) further require 
that ``[s]election of performance targets by a metropolitan planning 
organization shall be coordinated, to the maximum extent practicable, 
with providers of public transportation to ensure consistency with 
sections . . . 5329(d)'' and ``[s]election of performance targets by a 
State shall be coordinated with the relevant metropolitan planning 
organizations to ensure consistency to the maximum extent 
practicable.'' Since these activities are required by law, FTA will not 
merely encourage these practices through guidance, as some commenters 
requested. FTA will require these practices as a legal matter. 
Moreover, FTA emphasizes that the PTASP rule only governs the 
activities of operators of public transportation systems. The recent 
FTA/FHWA joint planning rule 23 CFR part 450 governs the planning 
activities of transit agencies, States, and MPOs. FTA refers readers to 
the Final Rule dated May 27, 2016, for further guidance on the roles 
and responsibilities of States and MPOs in the planning process (see 
https://www.gpo.gov/fdsys/pkg/FR-2016-05-27/pdf/2016-11964.pdf).
    In response to the question as to whether a transit agency only 
would be required to make its safety performance targets available to a 
State and an MPO, or whether it also would be required to make the 
supporting performance data pertaining to those targets available to a 
State and an MPO, FTA defers to the State and local processes developed 
by States and MPOs. FTA only requires that transit agencies coordinate 
with States and MPOs to the maximum extent practicable to assist those 
States and MPOs with the selection of Statewide and regional safety 
performance targets. At a minimum, FTA requires each operator of a 
public transportation agency to make its safety performance targets 
available to States and MPOs.
    To ensure that a transit agency complies with these requirements, 
FTA intends to utilize its existing Triennial Reviews and State 
Management Reviews. FTA intends to ensure that MPOs comply with the 
joint planning rule through the existing MPO certification process.
    Finally, FTA notes that it is not developing safety performance 
targets for the industry--it is developing safety performance measures 
by which each operator of a public transportation system, and each 
State and MPO, must set targets. These targets are intended to guide 
transit agencies, States, and MPOs with the prioritization of 
transportation investments. The goal is for the prioritization of 
capital investments that help meet safety performance targets and state 
of good repair targets.

I. Safety Management Systems

1. Safety Management Policy: General Comments
    Comments: Numerous commenters expressed general support for the 
proposed Safety Management Policy provisions of 49 CFR 673.23.

[[Page 34440]]

    Response: FTA appreciates the support from the transit industry on 
Safety Management Systems, and specifically the Safety Management 
Policy provisions of 49 CFR 673.23.
1.1. Safety Management Policy Statement
    Comments: Several commenters encouraged FTA to allow for maximum 
flexibility in safety management policy statements and urged FTA to 
allow deviation in policy adoption whenever consistent with the 
overarching principles of SMS.
    A few commenters expressed concern regarding the inclusion of 
safety performance targets in the safety management policy statement. 
One commenter suggested that it is inappropriate to include specific 
safety performance targets in an overarching safety management policy 
statement and suggested deleting the requirement from the rule. This 
commenter also suggested that FTA replace the term SMS with PTASP where 
references to safety performance targets are made. Another commenter 
urged FTA to clarify that the intent of including safety performance 
targets in the safety management policy statement is not to require 
annual updates of the target values, but rather, the measures that the 
targets address.
    Response: FTA agrees with the commenters who suggested that the 
inclusion of safety performance targets in the safety management policy 
statement is unnecessary, and FTA has updated the rule text, 
accordingly. The location of this requirement under the ``Safety 
Management Policy'' section of this rule is redundant, given the fact 
that FTA is requiring each transit agency to establish safety 
performance targets through the ``General Requirements'' section of 
this rule at 49 CFR 673.11(a)(3). If a transit agency wishes to include 
its safety performance targets in its safety management policy, it may 
do so, although it may identify those targets in another section of its 
safety plan. The rule text in 49 CFR 673.23 now reads, ``A transit 
agency must establish its organizational accountabilities and 
responsibilities and have a written statement of safety management 
policy that includes the agency's safety objectives.''
    To clarify, during a transit agency's annual review and update of 
its safety plan (which is required under 49 CFR 673.11(a)(5)), a 
transit agency may need to update its safety performance targets based 
on the data and safety conditions at that time, but a transit agency 
may not necessarily need to alter its target values each year. A 
transit agency only needs to examine them and decide, for itself, 
whether it should amend them.
1.2. Employee Reporting Program
    Comments: Numerous commenters expressed support for FTA's proposed 
employee reporting program. Several commenters urged FTA to provide 
more detail on the requirements for employee reporting programs. Two 
commenters suggested that FTA encourage transit agencies to establish 
``close call'' reporting programs. Another commenter requested guidance 
from FTA on how reports from employee reporting programs would be 
protected from disclosure.
    One commenter supported non-punitive employee reporting, but stated 
that disciplinary actions for employee safety behaviors are the subject 
of collective bargaining at the majority of transit systems. As such, 
the commenter stated that collective bargaining agreements may affect 
disciplinary actions in employee reporting programs.
    Response: FTA appreciates the support for employee reporting 
programs and believes it is an essential part of a transit agency's 
SMS. Pursuant to 49 CFR 673.23(b), FTA is requiring each transit agency 
to ``establish a process that allows employees to report safety 
conditions to senior management,'' and FTA is providing significant 
latitude and flexibility to transit agencies to determine their own 
processes for the reporting of safety conditions. These reporting 
processes could include hotlines, web-based reporting systems, form-
based reporting systems, or direct reporting to management, but 
ultimately, each transit agency must decide the process and procedures 
that will work best within that individual agency.
    ``Close call'' reporting systems are a type of employee reporting, 
and FTA strongly supports the establishment of close call reporting 
systems, although these systems are not required.
    Currently, FTA does not have statutory protections in place to 
protect safety information from public disclosure, as is the case with 
FRA and the System Safety Programs required of commuter and intercity 
passenger railroads under 49 CFR part 270 (see http://www.fra.dot.gov/eLib/Details/L18294). FTA requested these protections through the 
``Grow America Act''. Following this request, in Section 3021 of the 
FAST Act, Congress authorized a study ``on evidentiary protection for 
public transportation safety program information.'' The results of this 
study will help inform the need to develop statutory and regulatory 
protections for safety data.
    Finally, FTA acknowledges that disciplinary actions for employee 
safety behaviors may be the subject of collective bargaining agreements 
throughout the country. Consequently, many transit agencies may need to 
work with their labor unions to establish employee safety reporting 
programs that fit the needs of management and a transit agency's 
operational and maintenance staff.
1.3. Safety Accountabilities and Responsibilities
    Comments: Two commenters expressed concern over the requirement 
that each transit agency employ an Accountable Executive and either a 
Chief Safety Officer or an SMS Executive. These commenters argued that 
this requirement could be overly burdensome for rural, specialized, 
tribal, or small transit systems where the administrative staff could 
be limited to only a single executive. One commenter suggested that FTA 
add language in the final rule that requires small transit agencies to 
hire necessary safety personnel. Another commenter urged FTA to clarify 
whether the Chief Safety Officer must be a direct employee of the 
transit agency or whether the Chief Safety Officer may be a position 
held by a part-time employee.
    A few commenters provided input on the role of the Chief Safety 
Officer and other SMS executives. One commenter urged FTA to clarify 
the role of the Accountable Executive in relation to the Chief Safety 
Officer and the transit agency's Chief Executive Officer. The commenter 
argued that the proposed rule would require the Accountable Executive 
to implement and maintain SMS, but that responsibility should belong to 
the Chief Safety Officer. One commenter suggested that FTA identify the 
link between the transit agency's Chief Safety Officer or SMS Executive 
and the operations and asset management departments, which is integral 
for a successful SMS.
    Response: FTA appreciates the comments that it received regarding 
the Accountable Executive and the Chief Safety Officer (or SMS 
Executive), however, FTA is requiring that each transit agency identify 
individuals to fill these positions in its system. FTA clarified in the 
NPRM for this rule, and it is clarifying again here, that at many 
smaller transit agencies, roles and responsibilities may be more fluid 
and shared. Nevertheless, even in circumstances where responsibilities 
are either shared or delegated, each transit agency must identify a 
single primary decision-maker, or ``Accountable Executive,'' who is 
ultimately

[[Page 34441]]

responsible for controlling the human and financial resources necessary 
to maintain and implement the transit agency's safety plan and transit 
asset management plan.
    FTA acknowledges that small transit agencies may not have many 
executive staff, and therefore, FTA is allowing small Section 5307 
recipients and subrecipients to identify a Chief Safety Officer, or 
``SMS Executive,'' that may serve other functions, such as operations, 
maintenance, and grant administration. For these transit agencies, the 
Chief Safety Officer may be a full-time employee of the transit system 
who has responsibility for duties other than safety, a part-time 
employee of the transit system, or a contracted employee. To 
illustrate, in a small bus agency, the general manager or operations 
manager may be the same individual as the Chief Safety Officer or SMS 
Executive.
    Given the increased safety risks and complex operations associated 
with rail transit systems, FTA is requiring each rail transit agency to 
identify a single full-time Chief Safety Officer solely dedicated to 
safety. These Chief Safety Officers cannot have responsibilities other 
than safety. Similarly, FTA expects bus transit systems that operate 
more than 100 vehicles in peak revenue service to have a dedicated 
Chief Safety Officer, given the increased safety risks in those 
systems, although, this is not a requirement.
    The role of the Accountable Executive in relation to the Chief 
Safety Officer and transit agency's CEO may vary from system to system. 
In many cases, as a transit agency's CEO or president or general 
manager, that individual likely will serve as the Accountable 
Executive. The Accountable Executive and the Chief Safety Officer are 
responsible for implementing and maintaining a transit agency's SMS, 
although at smaller transit agencies, this individual may be the same 
person. Ultimately, as noted above, the Accountable Executive must be 
the individual with the authority to dedicate the human and financial 
resources to maintain and implement a transit agency's safety plan and 
transit asset management plan. The Accountable Executive should 
oversee, and the Chief Safety Officer should have a strong working 
relationship with, the operations and asset management departments at a 
transit agency in order for SMS to be successful and effective.
2. Safety Risk Management
2.1. Safety Risk Management: General Comments
    Comments: Two commenters supported the general inclusion of a 
safety risk management process in a safety plan as detailed in the 
NPRM, but expressed concern about the level of data collection and 
assessment activities required. The commenters recommended that FTA 
provide best practices and technical assistance to assist States and 
transit agencies with the preparation and execution of safety risk 
management processes. Similarly, a commenter expressed concerns over 
the data requirements of the proposed rule, noting that the commenter's 
organization employs hazard identification and tracking logs, but the 
organization now would have to incorporate into its SMS the data 
obtained through these systems. The commenter asked FTA to clarify if 
it would need to apply a safety risk management process for paratransit 
services, and this commenter asked where transit asset management fits 
into the safety risk management process.
    While stating that safety risk management is an essential component 
of SMS, a commenter asserted that the proposed provisions at 49 CFR 
673.25 do not specify that hazard analysis, risk assessment, or safety 
certification is required for new and major capital projects. 
Additionally, the commenter suggested that the rule fails to address 
configuration management or risk assessments to system alterations, and 
it does not require transit agencies to consider the results of asset 
condition assessments while performing safety hazard identification 
activities. This commenter also asserted that the proposed rule 
suggests, but would not require, that the results of asset condition 
assessments and SMS analysis be considered in the determination of 
whether an asset meets the SGR standards under FTA's Transit Asset 
Management rule at 49 CFR part 625.
    One commenter asked what the phrases ``new operations of service to 
the public'' and ``new operations or maintenance procedures'' mean, as 
used in the section-by-section analysis of the proposed 49 CFR 
673.25(a). Additionally, the commenter stated that the definition of 
safety risk management is unclear.
    Two commenters encouraged FTA to allow flexibility in the hazard 
identification and risk management processes. One of these commenters 
stated that transit agencies should be encouraged to incorporate 
existing hazard identification and risk management processes, and 
evaluate any new processes that may be more effective. The other 
commenter asked whether a transit agency must develop its own safety 
risk management process, or whether FTA will establish a nationwide 
model.
    One commenter remarked that there are organizational pressures 
exerted on the safety staff and other personnel who participate in the 
safety risk management process to rate safety risk as low as possible. 
This commenter expressed a hope that with the full implementation of 
SMS in an organization, these types of organizational pressures would 
dissipate under a positive safety culture, but cautioned that the 
development of a positive safety culture could take five to six years, 
or even longer, in many organizations.
    Response: FTA appreciates the support from the industry on the 
proposed safety risk management process. FTA intends this process to be 
flexible, and it avoided prescriptive requirements in this rule. For 
example, the level of data collection and assessment activities will 
vary from agency to agency. For some transit agencies, data collection 
and analysis processes could be conducted using computer software 
programs; at other transit agencies, especially at smaller transit 
agencies, the data collection and analysis processes could involve a 
transit agency's management team, staff, and bus operators meeting in a 
room and discussing the most significant safety hazards and evaluating 
any associated risks. FTA has produced a safety plan template with this 
final rule, and it should assist transit agencies with the development 
of Safety Risk Management processes and considerations. To be clear, 
this rule applies to any transit service not regulated by another 
Federal agency, including general public and ADA complementary 
paratransit service, so each transit service provider will need to 
develop a safety plan which includes a Safety Risk Management process.
    Also, each transit agency must apply its Safety Risk Management 
processes--and all other SMS processes--to all elements of its 
operations, including the design, construction, and operation of major 
capital projects, New Starts and Small Starts projects, and any other 
extension or expansion of transit service. These requirements extend to 
any ``new operations or maintenance procedures,'' meaning, any new 
operations or maintenance processes for railcars, buses, track, 
facilities, or other service or infrastructure undertaken by

[[Page 34442]]

a transit agency. FTA is providing a great deal of flexibility here and 
is allowing systems to determine the hazards and risks for which it 
will prioritize and mitigate from an individual agency level. A transit 
agency also must apply its Safety Risk Management process to its 
existing operations and maintenance procedures, and all other aspects 
of its system. Pursuant to 49 CFR 673.5, FTA is defining the term 
``Safety Risk Management'' to mean ``a process within a transit 
agency's Public Transportation Agency Safety Plan for identifying 
hazards and analyzing, assessing, and mitigating safety risk.'' FTA 
outlines the scope of necessary procedures within Safety Risk 
Management 49 CFR 673.25.
    With respect to condition assessments, FTA expects each transit 
agency to consider the results of its condition assessments undertaken 
pursuant to its Transit Asset Management plan when it conducts SMS 
activities. For example, if an asset does not meet a transit agency's 
state of good repair targets, then the transit agency may conduct 
Safety Risk Management activities and analysis to determine whether the 
asset presents a safety hazard and any safety risks. The transit agency 
could mitigate any risks and prioritize investments in its capital 
plan, accordingly. In an effort to provide flexibility and scalability, 
FTA defers to each transit agency to determine for itself its own 
processes and procedures for these activities.
    FTA agrees with commenters who suggested that transit agencies 
should be encouraged to incorporate existing hazard identification and 
risk management processes, and utilize any new processes that may 
provide a more effective means of identifying and addressing safety 
hazards and safety risks. FTA is providing a safety plan template, 
technical assistance, and guidance to assist transit agencies with the 
development and implementation of Safety Risk Management, and it is not 
applying a one-size-fits-all model for the industry since safety 
hazards and safety risks vary significantly nationwide.
    One of the goals of this rule is create stronger and more positive 
safety cultures within transit agencies, and FTA expects that a transit 
agency's personnel would not feel pressure to rate all safety risks as 
low as possible. To the extent this sentiment exists within a transit 
agency, FTA anticipates that these types of practices would dissipate 
as a transit agency implements its SMS over time. FTA agrees that it 
may take a few months to even a few years to fully implement a mature 
SMS, and FTA will provide guidance and technical assistance to the 
industry, as necessary.
2.2. Safety Hazard Identification and Analysis
    Comments: One commenter suggested that FTA clarify the distinction 
between safety hazard analysis and safety risk evaluation. This 
commenter asserted that FTA should articulate this distinction because 
the concepts of evaluation and analysis are used interchangeably in 
common language. Another commenter asked FTA to define the term 
``consequence.''
    A commenter encouraged FTA to establish standard processes for 
hazard identification and provided FTA with the hazard analytical 
methods and safety risk determination techniques adapted from the U.S. 
Department of Defense's Military Standard 882 series of standards as a 
model for national standardization. Similarly, one commenter suggested 
that FTA specify that transit agencies must utilize data and 
information from oversight authorities, including FTA, when conducting 
hazard identification and risk analysis.
    Response: In an effort to provide clarity to the Safety Risk 
Management process, FTA has amended the terminology used in the final 
rule. A transit agency must develop a Safety Risk Management process 
that is comprised of three steps: (1) Safety hazard identification, (2) 
safety risk assessment, and (3) safety risk mitigation. A transit 
agency must first identify potential hazards throughout its system, and 
then it must analyze these hazards to determine whether they present 
safety risks and safety consequences. After a transit agency identifies 
and analyzes potential hazards and consequences, the agency must 
undertake activities to assess and prioritize the safety risk 
associated with the potential consequences of the identified safety 
hazards, in accordance with 49 CFR 673.25(c). This process includes an 
evaluation wherein the transit agency assigns a level of probability 
and severity to the consequences, and then develops mitigation, as 
necessary and appropriate. FTA encourages transit agencies to utilize 
computer software programs for safety risk assessment and mitigation, 
although smaller transit operators may not need them.
    FTA has taken efforts to avoid requiring prescriptive processes for 
hazard identification and risk analysis. FTA encourages transit 
agencies to review the U.S. Department of Defense's Military Standard 
882 (available at http://www.system-safety.org/Documents/MIL-STD-882E.pdf) and utilize the hazard analytical methods and safety risk 
determination techniques, to the extent appropriate, but FTA is not 
mandating that transit agencies adopt any particular method of process 
for hazard identification and risk analysis--FTA is providing transit 
agencies with flexibility given the large range of sizes and types of 
operators nationwide. Finally, FTA will not specify the type of data 
and information that oversight authorities must share with transit 
agencies. Oversight authorities and transit agencies will need to make 
these decisions for themselves.
3. Safety Assurance
3.1. Safety Assurance: Safety Performance Monitoring and Measurement
    Comments: Pursuant to the proposed provisions at 49 CFR 
673.27(b)(2), each operator of a public transportation system would be 
required to monitor its operations to identify any potential safety 
hazards not previously identified through the Safety Risk Management 
process outlined in proposed 49 CFR 673.27. One commenter suggested 
that FTA delete this requirement because, presumably, transit agencies 
already would have established activities to identify potential safety 
hazards as part of their Safety Risk Management processes. One 
commenter suggested deleting the word ``any'' in the requirement 
because the word suggests that safety risk mitigations may not exist 
and/or the transit agency's Safety Risk Management Process is broken. 
One commenter asked what type of hazards might not be identified in the 
Safety Risk Management process and asked whether the proposed 
requirement indicates a flaw in the Safety Risk Management process.
    A couple of commenters requested clarification of the term ``safety 
event'' as used in proposed 49 CFR 673.27(b)(4). Specifically, a 
transit agency asked if a ``safety event'' in this provision is the 
same as ``Event'' as defined in the proposed rule. If the terms are the 
same, then the commenter asked whether a transit agency would have to 
develop a process for investigating ``Accidents,'' ``Incidents,'' and 
``Occurrences.'' Additionally, the commenter asked to whom it should 
report a ``safety event,'' if anyone.
    Two commenters asserted that this aspect of SMS appears one-size-
fits-all, perhaps appropriate for a large agency operating a rail 
system but burdensome for small-urban, rural, specialized, and

[[Page 34443]]

tribal transit agencies. Several commenters recommended that FTA should 
establish minimal monitoring requirements for Section 5310, Section 
5311, and small Section 5307 recipients. These requirements should be 
scalable and reflect the size and scope of these organizations.
    Response: FTA appreciates the comments that it received regarding 
the Safety Assurance processes proposed in the NPRM. FTA agrees with 
the commenter who suggested that the requirement for transit agencies 
to continually monitor their operations to identify any potential 
safety hazards that it might not have captured when undertaking its 
Safety Risk Management process is a redundant requirement. FTA has 
eliminated this requirement for all transit operators in the final 
rule.
    Under the proposed provisions for Safety Assurance at 49 CFR 
673.27(b)(4), a transit agency would be required to establish a process 
to: ``Investigate safety events to identify causal factors.'' FTA 
proposed the following definition for the word, ``event,'' as used 
throughout the rule: ``Accident, Incident, or Occurrence.'' Therefore, 
each transit agency must develop procedures for investigating 
Accidents, Incidents, and Occurrences.
    As discussed throughout this rulemaking, SMS is scalable, and FTA 
is providing transit agencies with great latitude and flexibility in 
developing procedures for investigating Events. For example, a small 
bus operator may develop a simple process for investigating the cause 
of a bus accident. The process may involve an on-site examination of 
the vehicle and the scene, a review of any video recordings from 
cameras mounted inside or outside of the bus, an interview with the bus 
operator and witnesses at the scene, and a toxicology test for the bus 
operator. A large rail operator may need to develop a more robust 
process for investigating the cause of a rail car accident, involving 
communications between safety and operating divisions of the transit 
agency, a shutdown of track operations, the deployment of designated 
safety inspectors and engineers, a comprehensive investigative report, 
etc. FTA is not prescribing any particular process for investigating 
safety events, but it notes that, as part of the larger safety 
management process, it is critical for transit agencies to identify and 
understand the causes of the Accidents, Incidents, and Occurrences in 
their systems so that the circumstances leading to the Events can be 
mitigated and prevented in the future.
    FTA notes that its reporting requirements for safety events are 
outlined in the National Transit Database Reporting Manuals (see 
https://www.transit.dot.gov/ntd). Rail transit agencies should follow 
the notification and reporting requirements of the new SSO rule at 49 
CFR part 674, including Appendix A to that rule. FTA is not requiring 
any reporting through this PTASP rule.
    Finally, FTA agrees with the commenters who recommended that FTA 
should establish minimal monitoring requirements for smaller transit 
operators. Consequently, in today's final rule, FTA has eliminated many 
of the Safety Assurance requirements for all small public 
transportation providers. Small public transportation providers only 
would need to develop procedures for safety performance monitoring and 
measurement; they would not need to develop procedures for management 
of change and continuous improvement. FTA believes that these revisions 
reduce the administrative, financial, and regulatory burdens for small 
transit providers significantly and help them transition to the new 
part 673. Rail fixed guideway public transportation systems, and FTA 
recipients and subrecipients that operate more than 100 vehicles in 
peak revenue service, would be required to develop safety plans that 
include all of the processes under Safety Assurance, namely, safety 
performance monitoring and measurement, management of change, and 
continuous improvement.
3.2. Safety Assurance: Management of Change
    Comments: One commenter emphasized the importance of the proposed 
provisions at 49 CFR 673.27(c) involving the management of change and 
assessing changes that may introduce new hazards or impact a transit 
agency's safety performance. This commenter suggested moving these 
requirements from the Safety Assurance provisions of the rule to the 
Safety Risk Management provisions of the rule, indicating that this 
relocation would elevate the importance of the requirement. One 
commenter requested clarification regarding which changes might impact 
a transit agency's safety performance.
    Another commenter encouraged FTA to include Management of Change 
within the SMS context, stating that safety within the scope of capital 
projects, acquisitions, procurements, and system changes only fully can 
be measured and verified through system safety engineering practices 
and principles. This commenter argued that Management of Change within 
the context of SMS should include effective safety management 
procedures and processes to ensure that plans, policies, procedures, 
and practices effectively are measured and incorporated into an overall 
Management of Change program. One commenter expressed confusion over 
the provision for transit agencies to map updates of their safety plans 
to Safety Assurance instead of Safety Management Policy.
    Response: The Safety Assurance element of SMS involves the 
continual monitoring of a transit agency's safety performance. Safety 
Assurance activities serve as a check on the Safety Risk Management of 
a transit agency. The procedures are designed to ensure that safety 
risk mitigations are effective, to collect safety performance data that 
will help a transit agency predict future safety events and mitigate or 
eliminate them, and to analyze the potential safety risks of any new 
practices or procedures adopted by a transit agency. For these reasons, 
the ``Management of Change'' activities are housed within Safety 
Assurance. Each transit agency must establish a process for identifying 
and assessing changes that may introduce new hazards or impact the 
transit agency's safety performance, and if the transit agency 
determines that a change may impact its safety performance, then the 
transit agency must evaluate the proposed change through its Safety 
Risk Management process. FTA disagrees with the commenter who suggested 
that moving these procedures from Safety Assurance to Safety Risk 
Management will elevate their importance--ultimately, these all are 
requirements for safety plans. FTA is providing each transit agency 
with great latitude and flexibility in developing these procedures and 
identifying the types of changes in its system that could impact safety 
performance. These changes may include changes to the design of a new 
public transportation system, service changes to the existing public 
transportation system, new operational or maintenance procedures, new 
organizational changes, and changes to internal standard operating 
procedures, such as changes to procurement or safety management 
processes. Each of the SMS procedures are equally important and are 
designed to work together as a system for managing safety risks in a 
transit agency.
    In response to the commenter who encouraged FTA to include 
Management of Change within the SMS context, FTA makes clear that all 
of the activities within Safety Assurance--Safety Performance 
Monitoring,

[[Page 34444]]

Management of Change, and Continuous Improvement--are core components 
of SMS.
    Finally, as noted above, under today's final rule small public 
transportation providers are not subject to the management of change 
requirements under Safety Assurance. These requirements only apply to 
rail fixed guideway public transportation systems and FTA recipients 
and subrecipients that operate more than one hundred vehicles in peak 
revenue service.
3.3. Safety Assurance: Continuous Improvement
    Comments: One commenter sought clarification on the term 
``continuous improvement,'' and another commenter recommended replacing 
the term ``continuous'' in proposed 49 CFR 673.27(d) with ``continual'' 
because ``continuous'' suggests no room to backslide. Additionally, the 
commenter suggested replacing the phrase, ``If a transit agency 
identifies any deficiencies . . . , '' in proposed 49 CFR 673.27(d)(2) 
with the phrase, ``When a transit agency . . . , '' to maintain 
consistency with the spirit of SMS.
    One commenter stated that transit agencies have developed practices 
for a variety of safety oversight programs to assess and ensure 
continuous improvement of safety performance. The commenter encouraged 
FTA to allow transit agencies to continue the development and execution 
of effective system safety oversight functions, such as safety audits, 
observations, inspections, assessments, and data analysis, in order to 
strengthen this component and work towards fully achieving the SMS 
model.
    Response: FTA notes the suggested changes to the verbiage in 49 CFR 
673.27(d), but these suggestions are stylistic in nature, and offer no 
substantive amendments to the regulatory text.
    FTA appreciates the commenter who noted the various safety 
oversight programs that transit agencies have developed over the years 
to manage safety risk. FTA is providing transit agencies with great 
latitude and flexibility in developing procedures for managing safety 
risk, and through the requirements outlined in today's rule, transit 
agencies should be developing procedures for conducting safety 
observations, inspections, assessments, and data analysis. FTA expects 
that the continual efforts tied to safety implementation will improve a 
transit system's safety performance by reducing, mitigating, and 
preventing safety outcomes.
    Finally, as noted above, under today's final rule small public 
transportation providers are not subject to continuous improvement 
requirements under Safety Assurance. These requirements only apply to 
rail fixed guideway public transportation systems and FTA recipients 
and subrecipients that operate more than one hundred vehicles in peak 
revenue service.
4. Safety Promotion
    Comments: Several commenters supported the establishment of a 
comprehensive safety training program, including refresher training, 
through the Safety Promotion element of SMS. Several commenters 
provided input on or asked questions about the types of employees who 
would be subject to training. A few commenters expressed concern with 
the phrase ``directly responsible for the management of safety,'' 
asserting that this language is vague and could be interpreted 
inconsistently. One commenter stated that FTA should replace this 
phrase with the terminology in FTA's proposed Public Transportation 
Safety Certification Training Program rule at 49 CFR 672.13, which 
requires transit agencies to ``designate its personnel who are directly 
responsible for safety oversight and ensure that they comply with the 
applicable training requirements.'' Another commenter expressed concern 
that this phrase could be misinterpreted by transit agencies to imply 
that only management or safety department employees would be subject to 
a comprehensive safety training program. The commenter suggested that 
safety training should include all levels of employees at a transit 
agency and recommended that FTA change this language to cover all 
employees and contractors. One commenter, however, stated that transit 
agencies should not be required to train contractors. Another commenter 
suggested that the terminology used to describe categories of employees 
is not consistent with the terminology used in 49 CFR part 674, without 
qualification. Another commenter stated the rule should specify that 
the training program should apply to the Accountable Executive.
    Several commenters recommended that FTA not apply the training 
requirements to Section 5310 and Section 5311 operators, arguing that 
the development and implementation of a training program would be a 
financial and administrative burden. These commenters suggested that 
FTA should only mandate driver safety training for these operators. 
Another commenter indicated that live, face-to-face training is 
preferred, but noted that this type of training is difficult to 
schedule and suggested that FTA provide online training and host 
workshops for the industry.
    Several commenters requested additional clarification regarding the 
proposed training provisions. One commenter asked if FTA would 
``grandfather'' in existing agency safety training programs. Another 
commenter asked what constitutes a ``comprehensive safety training 
program'' and whether FTA foresees any minimum requirements for this 
program. Another commenter asked whether FTA would provide further 
guidance on the specific types of safety training that it would 
require. One commenter believed that FTA's intent is to create a 
single, comprehensive training program, but references to training 
throughout the rule make that unclear. One commenter suggested that 
Safety Promotion could include certifications and evaluations, 
including a driver report card and/or a professional transit driver 
program.
    Response: FTA appreciates the comments that it received supporting 
the safety training program. FTA emphasizes that this program is a 
statutory requirement under 49 U.S.C. 5329(d)(1)(G), which requires 
each operator of a public transportation system to establish ``a 
comprehensive staff training program for the operations personnel and 
personnel directly responsible for safety'' and includes ``completion 
of a safety training program'' and ``continuing safety education and 
training.''
    Given the unique operating environments and operating systems of 
each transit agency, FTA is providing great latitude and flexibility in 
complying with these provisions. Each transit agency should determine 
for themselves the classes of employees who are directly responsible 
for safety in that unique system. These employees could include vehicle 
operators, maintenance staff, dispatchers, the Chief Safety Officer, 
the Accountable Executive, and other agency staff and management who 
have direct responsibility for safety. The training program should 
cover all levels of employees and contractors, and FTA disagrees with 
the commenter who suggested that these provisions should not apply to 
contractors. In many systems, contractors have direct responsibility 
for safety, particularly in circumstances where a transit agency 
contracts for service, and it is critical that these individuals have 
training in safety.

[[Page 34445]]

    In response to the commenters who recommended that FTA not apply 
the training requirements to Section 5310 and Section 5311 operators, 
FTA notes that it is deferring regulatory action regarding the 
applicability of this rule to these recipients and subrecipients until 
a later time. FTA is providing the industry with template safety plans 
and training courses, including online training courses, to assist 
small and large transit agencies with the development of training 
programs.
    In response to the question regarding whether FTA would 
``grandfather'' in existing safety training programs, FTA does not find 
a need to do so. Certainly, transit agencies can use existing safety 
training programs, or augment those programs, so long as they meet the 
requirements in this rule. FTA is not issuing any prescriptive 
requirements regarding these training programs because it does not 
believe that a one-size-fits all approach is appropriate. FTA agrees 
with the commenter who suggested that Safety Promotion could include 
certifications and evaluations, including a driver report card and/or a 
professional transit driver program, although FTA is not requiring this 
type of documentation. Ultimately, each transit agency must determine 
what is best for its system. Finally, FTA agrees with the commenters 
who stated that the language in this section could be ``misinterpreted 
by transit agencies to imply that only management or safety department 
employees would be subject to a comprehensive safety training program'' 
and does intend to create confusion between today's rule and the Safety 
Certification Training Program rule. Therefore, FTA is updating the 
language in 49 U.S.C. 673.29 to state: ``A transit agency must 
establish and implement a comprehensive safety training program for all 
agency employees and contractors directly responsible for safety in the 
agency's public transportation system.''
5. Scalability of SMS
    Comments: Many commenters requested guidance and technical 
assistance on how SMS could be scaled for small transit providers. One 
commenter urged FTA to keep guidance and templates at a high level so 
that they can be tailored to fit the unique needs and circumstances of 
the broad range of transit agencies subject to the PTASP rule.
    Several commenters stated that an appropriately scaled safety plan 
is particularly important in a zero fatality environment, and FTA 
should clarify that the transit agency, or the State, is responsible 
for deciding how to scale the plan. These commenters suggested that FTA 
revise 49 CFR 673.21 by replacing ``appropriately scaled'' with 
``appropriately scaled by the provider, or if applicable, the State.''
    One commenter urged FTA to emphasize in the final rule that SMS 
provides flexibility and adaptability, and it urged FTA to avoid 
developing prescriptive and restrictive standards for transit agencies 
that may create major program gaps and limitations. Similarly, another 
commenter stated that FTA should allow for local choice in implementing 
SMS plans and programs, asserting that local flexibility would lead to 
greater and more comprehensive safety plans across individual systems.
    Several commenters suggested that the rule lacks detail, and they 
indicated that FTA should add more detail to the various processes and 
procedures required, and that FTA should develop templates and 
associated technical assistance manuals where the requirements could be 
presented differently based on size, mode, and safety record. One 
commenter appreciated FTA's efforts to create a rule that considers 
each transit agency's uniqueness; however, this commenter concluded 
that the final rule should include identifiable and clearly stipulated 
requirements which can then be tailored to the individual 
characteristics of a transit agency.
    Response: FTA appreciates the comments that it received regarding 
the need for technical assistance, guidance, and templates for safety 
plans. Concurrent with this final rule, FTA is issuing a safety plan 
template for the industry. FTA is not requiring transit agencies to use 
the template, but rather, FTA is releasing it as a guide to assist 
States and transit agencies with the development of their safety plans. 
Ultimately, each operator of a public transportation system must decide 
for itself the processes and procedures within the SMS framework that 
are most appropriate for its unique operating environment. A small bus 
operator may have simpler processes and procedures than a large rail 
operator. In situations where a State is drafting a safety plan on 
behalf of a small public transportation provider, the State and the 
small public transportation provider should work together and 
collaborate on the development of processes and procedures that are 
most appropriate for the operator.
    FTA appreciates the comments noting the flexibility and 
adaptability of SMS, which FTA has emphasized throughout this 
rulemaking. FTA has taken great efforts to avoid the development of 
prescriptive and restrictive standards for transit agencies that may 
create major program gaps and limitations.
    Finally, FTA believes that the requirements in the rule satisfy the 
minimum requirements of the statute at 49 U.S.C. 5329(d), and if the 
requirements were any more prescriptive, transit agencies would not 
have the flexibility that they need to tailor their safety plans to 
their unique operating environments. If this were the case, the safety 
plans would be more difficult to develop, and ultimately, less useful 
in mitigating and preventing safety events. FTA believes that today's 
rule strikes an appropriate balance in providing a general framework 
for safety plans and for allowing flexibility and scalability for each 
individual transit agency.
6. SMS and Safety Culture
    Comments: A few commenters emphasized the need for communication 
between management and agency staff, and they noted the need for a 
healthy safety culture. One commenter supported the requirement that 
transit agencies use SMS principles to help achieve a high level of 
safety, and noted that, to achieve a high level of safety, management 
at transit agencies must listen to and incorporate the input from their 
frontline workers and their unions who have daily, firsthand 
experiences and in-depth knowledge of the transit systems. One 
commenter acknowledged that training and communication are key 
components of an effective SMS, but also noted that listening to 
employees, seeking their feedback, and ensuring a positive culture of 
safety in their work are also important components of SMS. Another 
commenter stated that local unions may present administrative 
challenges in adopting a positive and healthy safety culture.
    Response: FTA appreciates the comments that it received regarding 
the need for a positive and healthy safety culture, and each of the 
requirements of this rule is designed to help ensure a positive safety 
culture at each transit agency. FTA wholeheartedly agrees that 
communication between management and staff, including labor unions, is 
critical in achieving a positive and healthy safety environment and in 
reducing safety events. One of the key requirements in today's rule is 
an employee reporting program, which will allow the frontline staff who 
have in-depth knowledge of the transit system to report unsafe 
conditions to management without fear of reprisal. FTA believes that 
these programs will help support a positive safety culture within 
transit organizations.

[[Page 34446]]

J. Safety Plan Documentation and Recordkeeping

1. Safety Plan Documentation
    Comments: Two commenters recommended that transit agencies should 
keep their safety plan documents for more than three years. One of 
these commenters recommended that transit agencies be required to 
retain documentation for a minimum of fifteen years, or at least five 
triennial review cycles. Another commenter asserted that the data 
contained in the safety plan documentation would be valuable in 
determining historical trends in a transit agency's safety performance 
over time, so extending the minimum retention period would allow for 
more robust historical assessments.
    Response: FTA recognizes the value associated with having access to 
years of data to assist with assessing historical trends. However, such 
a requirement must be balanced against the costs associated with 
maintaining such data over an extended timeframe as suggested by the 
commenter. With that in mind, FTA believes its proposal that transit 
agencies maintain documents required by this part for a minimum of 
three years is reasonable relative to cost and effort, and also aligns 
well with the three year period for Triennial Reviews and State 
Management Reviews. This requirement would not bar those transit 
agencies desiring to maintain documents beyond three years from doing 
so, and FTA would encourage this practice. Accordingly, the proposed 
three year minimum requirement is included in the final rule.
2. Safety Plan Records
    Comments: Several commenters asked which records should be 
maintained related to training. One commenter asserted that employee 
training records under the Public Transportation Safety Training 
Certification Program are already stored in FTA's training portal. 
Another commenter stated that its agency maintains a Learning 
Management System to schedule and track training, and this commenter 
questioned whether this existing system is sufficient or whether the 
agency will need to keep additional records. One commenter urged FTA to 
require transit agencies to maintain additional records beyond what is 
required in the proposed rule.
    One commenter requested clarification on whether the requirements 
to keep training records apply to locally operated transit systems. One 
commenter stated that it will maintain records on the SMS requirements 
for transit agencies that utilize a safety plan drafted by a State.
    Response: FTA notes that the training required under the Public 
Transportation Safety Certification Training Program at 49 CFR part 672 
is required of those who are ``directly responsible for safety 
oversight'' of the public transit system. FTA has developed a web 
portal to maintain the training records for those subject to the 
requirements of that rule. Today's final PTASP rule requires the 
development of a comprehensive staff training program for operations 
personnel and personnel who are ``directly responsible for safety.'' 
Thus, there are two different types of safety training requirements, 
applicable to different employees of a transit system.
    The requirements of today's final rule include the completion of a 
safety training program and continuing safety education and training. 
Such training may or may not also include training requirements in 
accordance with the Public Transportation Safety Certification Training 
Program Rule at 49 CFR part 672. FTA emphasizes that each transit 
agency will have discretion and flexibility with regard to the 
requirements of the safety training program under this part. FTA 
encourages transit agencies to maintain training records to the maximum 
extent practicable, but in today's final rule, FTA is not requiring 
transit agencies to maintain these records and it has removed Section 
673.33 ``Safety Plan Records'' in its entirety for all transit 
agencies. Specifically, transit agencies are not required to maintain 
records of safety risk mitigations, results from safety performance 
assessments, and employee training. FTA believes that this revision 
from the NPRM to the final rule responds to the industry's concerns 
regarding recordkeeping and it significantly will reduce the 
administrative and financial burdens for all transit operators.
3. Other Comments on Documentation and Recordkeeping
    Commenters: Numerous commenters stated that transit agencies need 
data protection for the information in their safety plans. The 
commenters argued that SMS, by its nature, requires full and open 
review, evaluation, and prioritization of risk, and the possibility 
that these safety reviews could be released through the Freedom of 
Information Act (FOIA), State sunshine laws, or obtained through 
judicial proceedings serve as a barrier to well-documented and robust 
self-examination. The commenters encouraged FTA to state its intent to 
protect agency analyses to the full extent possible and pursue full 
authority to exempt safety analyses from discovery and use in judicial 
proceedings. One commenter suggested that FTA incorporate a 
confidentiality provision into the rule similar to the provisions in 
the old SSO rule at 49 CFR part 659.
    One commenter suggested that the rule should acknowledge disclosure 
laws differ between States and that the rule should be written so that 
transit agencies are not required to disclose records to plaintiffs or 
allegedly injured parties if a State law does not require them to do 
so.
    Response: When FTA first promulgated its SSO rule in 1995, FTA 
recognized that rail transit agencies often face litigation arising 
from accidents, and that the release of accident investigation reports 
can compromise both the defense of litigation and the ability of 
agencies to obtain comprehensive, confidential analyses of accidents. 
Thus, the former SSO rule at 49 CFR 659.11 provided that a state ``may 
withhold an investigation report that may have been prepared or adopted 
by the oversight agency from being admitted as evidence or used in a 
civil action for damages.'' Courts are left to determine whether to 
admit investigation reports into evidence for litigation, in accordance 
with the relevant State law and the courts' rules of evidence.
    Unlike NTSB accident reports, which cannot be admitted into 
evidence or used in civil litigation in a suit for damages arising from 
an accident, there is no such protection for data under FTA's safety 
rules (see 49 U.S.C. 1154(b) regarding NTSB investigations). Rather, 
States may enact statutes regarding the admissibility into evidence of 
accident investigation reports or safety data and analysis conducted in 
compliance with FTA requirements. FTA emphasizes that any protections 
must be based on State, not Federal, law and rules of evidence.
    With regard to safety records in the possession of FTA, FTA will 
maintain the confidentiality of accident investigations and incident 
reports to the maximum extent permitted under Federal law, including 
the various exemptions under FOIA. Documents submitted to FTA are 
subject to FOIA and are generally releasable to the public upon 
request. However, unlike other Federal safety regulatory agencies such 
as FRA and FAA, Congress has yet to provide FTA with statutory 
authority to otherwise exempt safety-related information from 
disclosure. Section 3021 of the FAST Act authorized FTA to undertake a 
study to determine

[[Page 34447]]

whether data protection is necessary. FTA notes that its confidential 
treatment of information would not preempt State law; therefore, 
transit agencies still would be required to comply with their State's 
laws regarding the treatment of such information and should exercise 
their use of this provision accordingly.
4. Database Systems
    Comments: One commenter expressed concern over integrating existing 
database systems and requested clarification from FTA on how to do so. 
The commenter urged FTA to clarify which data categories FTA expects to 
add to existing databases to capture information, and provide 
additional information on how it will support additional data 
management systems that agencies will need to acquire as a result of 
the rule.
    Response: Each transit agency will have to determine for itself how 
it will integrate databases. FTA supports the use of data management 
systems if a transit agency determines that these systems are necessary 
to manage safety risks. However, FTA does not foresee transit agencies 
having to integrate or create new databases, necessarily, in order to 
comply with the requirements of 49 CFR part 673.
5. Staffing and Resources as a Result of Documentation and 
Recordkeeping
    Comments: Two commenters expressed concern that the documentation 
and recordkeeping requirements in the proposed rule will produce a need 
for additional staffing and stretch already limited resources. The 
commenters stated that recordkeeping and documentation must be 
scalable.
    Response: FTA understands that agencies will need to expend 
resources to comply with the documentation requirements. FTA has sought 
to minimize the rule's paperwork burdens and agrees that such 
requirements for documentation and recordkeeping must be scalable. To 
this end, FTA has eliminated many of its proposed recordkeeping 
requirements in their entirety. Specifically, transit agencies are not 
required to maintain records of safety risk mitigations, results from 
safety performance assessments, and employee training. FTA believes 
that this revision from the NPRM to the final rule responds to the 
industry's concerns regarding recordkeeping and it significantly will 
reduce the administrative and financial burdens for all transit 
operators. FTA reiterates that service providers within the public 
transportation industry can vary greatly based on size, complexity, and 
operating characteristics. Transit agencies need safety processes, 
activities, and tools that scale to the size, complexity, and 
uniqueness of their systems, and SMS provides such an approach. 
Therefore, FTA believes that the documentation that is kept for a 
smaller bus agency may be less voluminous and less complex than those 
of large rail or multi-modal transit agencies. Moreover, FTA is issuing 
a safety plan template concurrent with the issuance of this final rule. 
This template will reduce the burden on transit agencies in developing 
the documentation necessary (that is, the safety plan) to comply with 
this rule.

K. Funding

    Comments: Several commenters asserted that the proposed rule 
results in additional costs relating to, among other provisions, 
reviews, training, software or software upgrades, and the scalability 
and implementation of SMS. The commenters expressed concern that these 
additional costs may impact their limited available resources and 
expressed concern that no additional resources would be provided to 
support the costs of achieving compliance. Several commenters remarked 
that this rulemaking seems like an unfunded mandate. These commenters 
also asked whether there would be additional Federal resources provided 
to implement the new safety plans. Another commenter asserted that 
costs related to oversight responsibilities should be eligible for 
reimbursement by States.
    Response: FTA recognizes there are costs associated with 
implementing the requirements of this rule; however, this rule is a 
requirement of 49 U.S.C. 5329(d). FTA recognizes the need for increased 
investments in transit, but Congress determines the specific levels of 
funding available to FTA recipients. To this extent, FTA disagrees with 
those commenters who suggested that these requirements are an unfunded 
mandate. States and operators of public transportation systems may use 
Federal funding provided through the existing Section 5303, Section 
5304, Section 5307, Section 5309, Section 5310, Section 5337, and 
Section 5339 programs to comply with the requirements in this rule, 
that is, developing and implementing their safety plans. Costs related 
to oversight by SSOAs are eligible for Federal reimbursement through 
the State Safety Oversight Grant Program created by 49 U.S.C. 5329.
    In an effort to further reduce the administrative, financial, and 
regulatory burdens on recipients, FTA will provide technical assistance 
in the form of templates and guidance documents to assist with the 
development of safety plans. FTA also is providing training courses to 
assist the industry with compliance with this rule. FTA has removed 
Section 673.33 ``Safety Plan Records'' from the final rule in response 
to comments from the industry and to reduce costs for individual 
transit systems. FTA is deferring action regarding the applicability of 
this rule to the smaller recipients and subrecipients that only receive 
Section 5310 and/or Section 5311 funds so that it can evaluate 
additional information and safety data to determine the appropriate 
level of regulatory burden necessary to address the safety risk 
presented by these operators.

L. Staffing

    Comments: Several commenters expressed concerns about the limited 
staff of many transit agencies and asserted that compliance with the 
proposed rule, notably the administrative requirements, would require 
agencies to hire more staff, including contractors or expert 
consultants, thus increasing costs. One commenter expressed that 
medium-sized transit agencies may have difficulty absorbing the costs 
that may be necessary to hire more than one individual without 
additional funding. One commenter expressed concern that placing 
increasing requirements on State Department of Transportation staff 
could create unintended consequences, such as a reduction in work 
quality or causing staff to forego other critical work.
    Response: FTA understands the concerns expressed by some commenters 
about the staffing resources needed to comply with the rule. 
Irrespective of the Federal funding stream, FTA continues to believe 
the scalability and flexibility in safety plan development will not 
unduly burden any particular transit agency. Given the scalability of 
SMS, transit agencies may have to reorganize existing staffing 
resources instead of hiring additional ones. Moreover, to reduce 
staffing burdens on transit agencies and States, FTA is issuing a 
safety plan template concurrent with this final rule. In accordance 
with 49 U.S.C. 5329(d), FTA also is requiring that States draft and 
certify plans on behalf of small public transportation providers which 
will further reduce the burden on smaller agencies. FTA is deferring 
action regarding the applicability of this rule to smaller recipients 
and subrecipients that only receive Section 5310 and/or

[[Page 34448]]

Section 5311 funds so that it can evaluate additional information and 
safety data to determine the appropriate level of regulatory burden 
necessary to address the safety risk presented by these operators.

M. Enforcement and Oversight

1. Triennial Reviews and State Management Reviews
    Comments: A few commenters preferred FTA's review of safety plans 
as part of the existing Triennial Review and State Management Review 
oversight processes, rather than annual reviews. One commenter asked 
FTA to provide more clarity on the State Management Review process. One 
commenter suggested that FTA could utilize findings from these 
oversight reviews for purposes of informing the transit industry on 
safety trends and best practices.
    A few commenters expressed concern that FTA may conduct oversight 
and enforcement of this rule outside of the traditional Triennial 
Review and State Management Review processes, but FTA did not explain 
how this additional oversight may impact transit agencies and SSOAs. 
The commenters recommended that FTA issue guidance explaining this 
additional oversight so that States, SSOAs, and transit agencies can 
effectively anticipate and respond to this process, and so that FTA may 
administer it consistently nationwide. Commenters suggested that FTA 
should detail procedures for additional reviews or audits outside the 
normal review schedule, including an advanced notice process and an 
identification of roles for the SSOAs.
    One commenter asked whether and to what extent reviewers could 
reject performance targets during the Triennial Review process. Another 
commenter asked about the consequences of a transit agency's failure to 
meet its safety goals.
    Response: As a preliminary matter, pursuant to the statutory 
provisions of 49 U.S.C. 5329(d)(1)(D), each operator of a public 
transportation system is required to conduct an annual review and 
update of its safety plan. This annual review and update is a process 
to be undertaken by each transit agency independent of the triennial 
oversight process conducted by FTA. FTA will issue future guidance on 
any changes to the Triennial Review and State Management Review 
processes, including the role of an SSOA, to the extent necessary. FTA 
will not use the National Public Transportation Safety Plan to inform 
the industry how it will conduct the Triennial Review or State 
Management Review processes.
    FTA will conduct additional oversight and enforcement of this rule 
outside of the Triennial Review and State Management Review processes 
as necessary and appropriate. FTA notes that its new Public 
Transportation Safety Program rule at 49 CFR part 670 outlines its 
authority to conduct investigations, inspections, audits, and 
examinations on transit systems. FTA will make oversight and 
enforcement determinations on a case-by-case basis.
    Finally, FTA Triennial and State Management reviewers will not 
``reject'' a transit agency's safety performance targets; however, they 
will ensure that each transit agency has identified safety performance 
targets based on the safety performance measures established in the 
National Public Transportation Safety Plan. To the extent that a 
transit agency does not meet its safety goals, then using its safety 
plan as guide, the transit agency must determine for itself which 
efforts it must undertake to do so.
2. State Oversight
    Comments: One commenter stated that a State may reasonably be 
required to provide oversight in drafting a safety plans, but for some 
States with multiple responsibilities and multiple recipients and 
subrecipients of Section 5310 and Section 5311 funds, the additional 
responsibility of oversight of small Section 5307 operators could be 
daunting. One commenter remarked that incorporating oversight of public 
transit systems into the existing SSO program would require additional 
trained personnel.
    Response: As discussed above, FTA is not requiring States to 
provide oversight of safety plans. States only are required to draft 
and certify the safety plans on behalf of small Section 5307 operators 
(unless the operator decides to draft and certify its own safety plan). 
FTA is responsible for providing oversight and enforcement of all 
safety plans, and it will utilize the existing Triennial Review and 
State Management Review processes to do so (with the exception of 
SSOAs, which have primary safety oversight and enforcement 
responsibility over rail transit systems). To ease the burden on 
States, FTA is issuing a safety plan template with this final rule. 
Also, as discussed above, there is no Federal legal authority for an 
SSOA to provide safety oversight of a bus system, and this rule does 
not contemplate an SSOA taking on that role.
3. Other Comments
    Comments: One commenter encouraged FTA to provide standard 
thresholds that it would use to determine the need for a safety audit, 
this way, FTA would not appear to be arbitrary or inconsistent. This 
commenter also recommended that FTA provide each transit agency with 
the opportunity to answer questions and provide additional information 
to assist safety oversight reviewers.
    One commenter asked if FTA would analyze the public's role in 
collisions rather than concentrating its oversight on transit agencies, 
arguing that, without addressing the public's interaction with the 
transit system, transit agencies may risk Federal funding if they do 
not meet their safety performance targets. Additionally, the commenter 
asked if FTA would have funding available for purposes of education 
(internal and external to include educating the public on safety), 
engineering (highway and vehicle designs), and enforcement if a transit 
agency fails to meet its safety performance targets.
    Response: Through MAP-21 and the FAST Act, Congress provided FTA 
with significant authority to conduct oversight, inspections, 
investigations, audits, examinations, and testing, as well as 
enforcement actions. (49 U.S.C. 5329(f)-(g)). FTA has issued a new 
regulation at 49 CFR part 670 entitled the ``Public Transportation 
Safety Program'' rule. FTA directs readers to that rulemaking for 
issues related to safety audits conducted by FTA.
    FTA has identified NTD reporting thresholds for an ``Incident,'' 
and those thresholds can be found in Appendix A to FTA's new SSO rule 
at 49 CFR part 674 (https://www.gpo.gov/fdsys/pkg/FR-2016-03-16/pdf/2016-05489.pdf). These thresholds do not limit FTA's authority to 
conduct a safety audit in the case of an Incident.
    FTA notes that the statutory framework of 49 U.S.C. 5329(d) 
authorizes FTA to regulate operators of public transportation systems, 
not the riding public. Nevertheless, through the SMS framework, each 
transit operator is required to develop processes and procedures for 
addressing safety risks in all aspects of their systems, and therefore, 
they must consider the public's role and interaction with their systems 
when identifying hazards and evaluating risks.
    Finally, as discussed throughout this final rule, FTA does not have 
control over its annual funding levels and appropriations. However, FTA 
supports the use of Federal funding for purposes

[[Page 34449]]

of education, engineering, and enforcement activities, and these types 
of activities may fall within the scope of eligibility for various 
funding programs under 49 U.S.C. Chapter 53.

N. NTD Reporting

    Comments: One commenter recommended that FTA continue collecting 
additional safety reporting data through existing programs such as the 
NTD, which is currently used by transit agencies to report safety 
incidents.
    Another commenter remarked that 49 CFR part 673 does not discuss 
reporting to FTA through NTD. Additionally, the commenter asked if FTA 
intends to substantially change the NTD reporting requirements upon the 
effective date of the proposed PTASP rule.
    Response: During this rulemaking, FTA issued a ``Notice of Request 
for Comments on Updates to National Transit Database Safety Information 
Collection'' (https://www.gpo.gov/fdsys/pkg/FR-2014-08-21/pdf/2014-19787.pdf). FTA issued a ``Supplemental Notice and Response to Comments 
on National Transit Database'' (https://www.gpo.gov/fdsys/pkg/FR-2015-11-18/pdf/2015-29384.pdf). FTA issued final reporting requirements on 
July 26, 2016, and they are available here: https://www.gpo.gov/fdsys/pkg/FR-2016-07-26/pdf/2016-17075.pdf. Through today's final rule, FTA 
is not requiring any reporting of any information to any entity.

O. Security

    Comments: Several commenters expressed concerns that the proposed 
rule did not address security, including terrorism, trespassing, 
vandalism, assaults, robberies, and cyber threats on transit systems. 
One commenter suggested that FTA address security and safety of the 
general public in this rule.
    One commenter stated that the TSA is unable to establish 
cybersecurity requirements for transit control systems due to lack of 
funding and expertise. This commenter warned that the U.S. Department 
of Transportation's focus on transportation safety must include an 
emphasis on transportation control system security to guarantee the 
safety of associated transportation systems.
    One commenter stated that FTA should provide direction regarding 
security and terrorism preparedness, noting that these preparations 
should be coordinated with TSA.
    Response: As a preliminary matter, TSA has the prerogative and 
responsibility for all rulemakings on security in public 
transportation. Specifically, under the Implementing the 
Recommendations of the 9/11 Commission Act of 2007 (Pub. L. 110-53), 
the September 2004 Memorandum of Agreement between DOT and DHS, and the 
September 2005 modal annex between FTA and TSA, DHS is tasked with the 
responsibility for carrying out a national strategy for public 
transportation security to minimize security threats and to maximize 
the ability of public transportation agencies to mitigate damage from 
terrorist attacks and other major incidents. While this legislation and 
these agreements do not preclude transit agencies from implementing 
measures securing their assets, FTA is not requiring agencies to do so 
through this final rule. FTA recognizes, of course, that some of the 
steps that a transit agency takes to ensure the personal safety and 
security of its riders and employees will overlap with steps it takes 
to secure its system from a terrorist attack; for example, the steps an 
agency takes may be part of a threat and vulnerability assessment. FTA 
notes that a transit agency's expenses for safety and security will 
continue to be eligible for Federal reimbursement under 49 U.S.C. 
Chapter 53.

P. SSPP-PTASP Crosswalk

    Comments: Although not a part of the PTASP NPRM, several commenters 
provided input on FTA's ``Crosswalk Matrix: 49 CFR part 659.19 System 
Safety Program Plan Requirements with Proposed Requirements for Public 
Transportation Agency Safety Plans,'' which it uploaded onto the docket 
for this rule. FTA intended this document to provide additional 
guidance to rail transit systems as to how the 21 elements of an SSPP 
would fit within the new regulatory requirements for a PTASP.
    Several commenters expressed concerns that the crosswalk lumps some 
SSPP elements into a few categories for PTASPs, and these commenters 
asserted that the six most complicated SSPP elements are listed under 
multiple pillars of SMS. A few commenters asserted that some of the 21 
elements of SSPPs fit into other pillars of SMS. One commenter 
encouraged FTA to work with rail transit systems to better align this 
matrix and promote a better understanding of SMS. One commenter 
suggested that performance targets should be listed under Safety 
Assurance, rather than Safety Management Policy. Another commenter 
provided several detailed suggestions for revised mapping of the SSPP 
elements with SMS.
    Response: FTA agrees that the new PTASP places the former elements 
of SSPPs into fewer categories, and this is a result of a new statutory 
framework under 49 U.S.C. 5329. The statutory provisions of 49 U.S.C. 
5329(d) provide specific requirements for PTASPs, and through the 
design of the new PTASP rule, FTA's intent is to ensure that rail 
transit systems will not become less safe than they were under the 
former SSO rule at 49 CFR part 659. Additional, more comprehensive 
guidance regarding the relationship between SSPPs and PTASPs is 
forthcoming, and FTA will post that guidance on its website (see 
https://www.transit.dot.gov/regulations-and-guidance/safety/transit-safety-oversight-tso).
    FTA agrees that some of the SSPP elements may be listed under 
multiple elements of SMS, but FTA believes that this mapping most 
appropriately connects the PTASP requirements to former SSPP elements. 
FTA disagrees that safety performance targets should be included under 
Safety Assurance, rather than Safety Management Policy because safety 
performance targets guide the safety management decisions, investment 
decisions, and policy decisions of a transit agency, all critical 
tenets of Safety Management Policy. Notwithstanding this connection 
between the former SSPPs and PTASPs, FTA only is requiring transit 
agencies to set safety performance targets as part of the ``General 
Requirements'' section of this final rule (49 CFR 673.11(a)((3)); to 
avoid redundancy, FTA is not also establishing this requirement in the 
``Safety Management Policy'' section, although, transit agencies may 
include safety performance targets in their Safety Management Policies 
if they so choose.

Q. Safety Performance Measures

    Comments: Several commenters urged FTA to revise the performance 
measures proposed in the National Public Transportation Safety Plan. 
Multiple commenters urged FTA to delete the proposed ``reliability'' 
performance criterion for the following reasons: Transit agencies 
currently do not report reliability data to NTD; the reliability 
performance measure is redundant of the TAM rule; reliability is a 
maintenance-related measure, not a safety measure; reliability is not 
easily quantified; and reliability could vary considerably between 
transit agencies.
    One commenter sought further guidance regarding FTA's four proposed 
safety performance measures. This commenter suggested that without 
additional detail, transit agencies would not be able to determine the 
standards by which FTA and SSOAs would measure and evaluate the

[[Page 34450]]

appropriateness of the safety performance targets established by the 
agencies.
    Response: FTA appreciates the comments that it received regarding 
safety performance measures; however, FTA notes that today's rule does 
not establish safety performance measures--FTA's National Public 
Transportation Safety Plan establishes the measures. FTA is addressing 
comments regarding the safety performance measures in the notice and 
comment process for the National Public Transportation Safety Plan.

R. Technical Assistance and Guidance

    Comments: Numerous commenters supported FTA's proposal to issue a 
safety plan template and to provide technical assistance to industry on 
the development and implementation of safety plans, particularly to 
address the scalability of SMS to different transit modes and system 
sizes.
    Some commenters stated that FTA should allow transit agencies to 
attach an appendix to the safety plan template, which would allow a 
State to avoid drafting multiple unique plans and capture a few unique 
issues. Several commenters stated that FTA clearly should allow a State 
to draft a template statewide safety plan or a series of individual 
safety plans tailored for each unique transit agency. One commenter 
stated that a transit agency should have the ability to tailor guidance 
and templates to its own needs, as long as it satisfies the substantive 
requirements of the final PTASP rule. Another commenter stated that it 
was looking forward to receiving implementation and gap analysis 
checklists.
    Several commenters noted that there is no mandated timeframe for 
when FTA will provide technical assistance tools and urged FTA to 
provide them in a timely manner. Several commenters urged FTA to make 
PTASP templates available in advance of any implementation deadline; 
some commenters urged FTA to make PTASP templates available 
concurrently with this final rule. One commenter suggested that, if FTA 
is unable to provide PTASP templates on the day that the final rule is 
published, then FTA should change the implementation deadline to be one 
year from the date that FTA issues PTASP templates. Another commenter 
stated that FTA should refrain from issuing a final rule until FTA 
develops guidance and PTASP templates. One commenter recommended that 
FTA provide technical assistance tools to States upon request.
    Several commenters requested other forms of technical assistance, 
including an FTA-sponsored website featuring national-level safety 
performance measurement data, online training, safety workshops, 
examples of industry best practices, and lessons learned in 
implementing SMS.
    Response: FTA appreciates the support from commenters regarding its 
development of a safety plan template and other guidance and technical 
assistance. FTA recognizes the administrative and financial burdens 
that this rule may impose on the industry, and FTA intends to reduce 
these burdens through templates, guidance, and technical assistance. 
Ultimately, the safety plan template, guidance, and technical 
assistance will help reduce, mitigate, and eliminate hazards and risks 
and will help make public transportation safer. For these reasons, 
today, FTA is issuing a template for safety plans concurrent with the 
issuance of this rule. The safety plan template is generic, 
minimalistic, and addresses each of the requirements of today's final 
rule. States and transit agencies can tailor the template to meet the 
needs of the numerous unique operating environments across the nation.
    FTA is providing deference to States in the development of plans on 
behalf of operators of public transportation. A State may draft a 
single statewide safety plan, it may draft a unique safety plan for 
each individual transit operator, it may develop a generic statewide 
safety plan with a more tailored appendix outlining various processes 
and procedures for each unique transit operator, or it may develop 
another method for complying with the rule, so long as the statewide 
plan or the individualized plans satisfy each of the elements of this 
rule and contain each of the required processes and procedures for SMS. 
Transit agencies are free to tailor guidance and templates to meet 
their own needs, so long as their safety plans satisfy the requirements 
of this rule. If a State drafts a statewide safety plan, then each 
individual operator that it covers should keep its plan on file, and 
the plan should include the relevant and unique information for that 
particular operator, such as the names of the Accountable Executive and 
Chief Safety Officer and the operator's safety performance targets.
    FTA notes that it has been developing a website through which it 
has been providing technical assistance, including information related 
to safety performance, training, examples of industry best practices, 
and lessons learned in implementing SMS. The website is located at the 
following link: https://www.transit.dot.gov/regulations-and-guidance/safety/transit-safety-oversight-tso. FTA has been uploading information 
onto this website, including guidance and other forms of technical 
assistance, as it becomes available. FTA encourages the transit 
industry to utilize the tools on this website with its development and 
implementation of successful safety practices, and it also encourages 
the industry to provide feedback on this website, as it evolves, 
through the ``Contact Us'' tool at the following link: https://ftawebprod.fta.dot.gov/ContactUsTool/Public/NewRequest.aspx.
    Finally, as mentioned above, in an effort to assist the industry 
with meeting the requirements of this rule, FTA is making the effective 
date one year after its publication date. As a result, transit agencies 
will have a total of two years from the publication date to certify 
that they have safety plans meeting the requirements of 49 CFR part 
673.

S. Coordination With Other Entities

    Comments: Two commenters expressed concern with the potential for 
inconsistency and duplication between FTA and FRA safety regulations. 
One commenter urged FTA to coordinate its NTD with FRA's Accident/
Incident Report Generator.NET (AIRGNET) to establish consistent 
terminology, reporting requirements, audit requirements, training 
requirements, and safety plan requirements.
    One commenter recommended that FTA adopt safety standards and 
methodologies developed by the U.S. Department of Defense, including 
system safety analytical methods to assess hazards and consequences and 
system safety engineering principles and techniques to develop and 
design mitigation. Two commenters encouraged FTA to establish an 
advisory committee of transit operators to assist with the development 
of policies and procedures for smaller operators.
    Response: FTA makes clear through today's rule that transit 
agencies that operate a rail fixed guideway public transportation 
system subject to regulation by FRA do not have to develop safety plans 
for that mode of service. 49 CFR 673.11(f). FTA does not intend to 
issue safety regulations that conflict or are inconsistent with FRA's 
safety regulations, and to that end, FTA has coordinated and will 
continue to coordinate with FRA on the development and implementation 
of this rule. FTA also has taken great efforts to ensure that 
terminology,

[[Page 34451]]

definitions, reporting requirements, training requirements, and 
regulatory enforcement efforts are consistent with other Federal safety 
and reporting regulations to the maximum extent possible.
    FTA appreciates the suggestion that it should adopt safety 
standards and methodologies developed by the U.S. Department of 
Defense, including system safety analytical methods to assess hazards 
and consequences and system safety engineering principles and 
techniques to develop and design mitigations; FTA is adopting the SMS 
approach to addressing safety risk, which is consistent with the 
approach taken by other modes within the U.S. Department of 
Transportation.
    Finally, as FTA develops and issues guidance and best practices for 
safety, FTA intends to consult with the transit industry, including the 
Transit Advisory Committee for Safety, to the maximum extent 
practicable.

T. Nexus Between the PTASP Rule and Other FTA Requirements

    Comments: Numerous commenters suggested that FTA clarify the nexus 
between the PTASP rule and other related FTA requirements, 
specifically, the National Public Transportation Safety Plan, the SSO 
rule, the Safety Certification Training Program rule, the Bus Testing 
rule, and the Transit Asset Management rule. These commenters 
recommended that FTA clearly define the link between the PTASP rule and 
other FTA requirements, especially the Transit Asset Management rule, 
to be consistent to avoid conflicting regulations. One commenter 
recommended that, to foster a strong culture of safety, FTA should 
extend data protection to asset management analyses.
    One commenter urged FTA to reinforce the link between the PTASP 
rule and the SSO rule, arguing that FTA should work to strengthen and 
streamline the mitigation, reporting, and notification processes.
    Response: FTA appreciates the comments that it received regarding 
the connection between the PTASP rule and other related FTA 
regulations. With respect to the National Public Transportation Safety 
Plan, FTA emphasizes that the Plan establishes safety performance 
measures to which each operator of a public transportation system must 
set performance targets in their safety plans, as required in the PTASP 
rule.
    In the SSO rule, FTA requires each SSOA to develop a program 
standard which, among other things, establishes minimum safety 
standards for the safety of all rail fixed guideway public 
transportation systems within its jurisdiction. FTA also requires each 
SSOA to approve the PTASP of every rail fixed guideway public 
transportation system within its jurisdiction. Each SSOA should review 
those safety plans to ensure that they are compliant with the PTASP 
rule, the National Public Transportation Safety Plan, and its own 
program standard. FTA notes that the PTASP rule does not add any 
additional notification or reporting requirements; those requirements 
are outlined in the SSO rule and the NTD Reporting Manuals.
    In the Safety Certification Training Program rule, FTA establishes 
minimum training requirements for transit agency employees and 
contractors who are directly responsible for safety oversight of rail 
fixed guideway public transportation systems that receive FTA funds. In 
the PTASP rule, FTA requires each operator of a public transportation 
system to establish a comprehensive safety training program for all 
employees and contractors directly responsible for safety. In this 
section of the safety plan, a rail transit system also may include its 
training program for employees and contractors who are directly 
responsible for safety oversight.
    In the Bus Testing rule, FTA requires recipients of FTA funds to 
test buses to ensure that they meet minimum performance standards, a 
scoring system, and a pass/fail threshold if they are using FTA funds 
to procure the buses. This rule exists separate and apart from the 
PTASP rule, but transit agencies may incorporate by reference into 
their safety plans any processes and procedures that they utilize for 
bus testing pursuant to the Bus Testing rule.
    Finally, in the Transit Asset Management rule, FTA requires transit 
agencies to conduct asset inventories and then perform condition 
assessments on their assets. Those condition assessments should inform 
the SMS activities that a transit agency undertakes pursuant to its 
safety plan. To illustrate how these rules work together, if a transit 
agency finds through a condition assessment that an asset is not 
meeting its state of good repair standards, then the transit agency may 
conduct safety hazard identification and safety risk assessment 
analysis on that asset. The transit agency may mitigate any safety 
risks, as necessary, and it may reprioritize its capital plan in 
accordance with the FTA and FHWA Planning rule at 23 CFR part 450. FTA 
notes that it addressed any comments related to asset management in the 
final Transit Asset Management rule.

U. Americans With Disabilities Act Issues

    Comments: One commenter stated that the proposed rule should not 
conflict with the Americans with Disabilities Act laws and regulations, 
and vice-versa. The commenter urged FTA to clarify how it will treat 
safety issues and incidents that may conflict with ADA requirements, 
remarking that agencies should not be subject to inspections, audits, 
examinations, investigations, directives, or other possible sanctions 
for adhering to ADA requirements.
    Response: FTA does not intend the PTASP rule to conflict with the 
ADA and its implementing regulations, which are designed to prevent and 
eliminate discrimination. Nevertheless, to the extent that a transit 
agency is undertaking action to comply with the ADA--such as the 
construction of capital projects to make facilities ADA-compliant; the 
installation of accessible features on vehicles, platforms, and other 
transit facilities; and the provision of paratransit service--FTA 
expects that action to be undertaken safely and in accordance with this 
final rule and a transit agency's safety plan.

V. Other Comments on the Rule

    Comments: One commenter suggested that all transit agencies should 
have safety plans only for maintenance and training, and that States 
should review safety plans only if a transit agency has safety issues. 
One commenter encouraged FTA to incorporate occupational health issues 
into the rule, focusing on driver assault, restroom breaks, and fatigue 
management. Another commenter encouraged FTA to join a ``Journey to 
Safety Excellence--a cycle of improvement that aims for a continuous 
reduction of risk with a goal of zero harm,'' stating that integrating 
the principles of the ``Journey to Safety Excellence'' into workplace 
safety strategies can make a great difference in saving lives and 
preventing injuries. One commenter remarked that zero is the only goal 
that transit agencies should establish in their performance targets.
    A commenter expressed disapproval for the guidelines FRA developed 
for rail vehicle crashworthiness, citing the Union International des 
Chemins de Fers (UIC), an international rail regulatory body, as an 
alternative example. This commenter urged FTA to use UIC as an example 
and expressed hope that FTA can serve as a role model for FRA.
    Response: FTA disagrees with the commenter who suggested that all

[[Page 34452]]

transit agencies should have safety plans only for maintenance and 
training, and that States should review safety plans only if a transit 
agency has safety issues. FTA's authorizing statute at 49 U.S.C. 
5329(d)(1)(B) mandates that each operator of a public transportation 
system establish ``methods for identifying and evaluating safety risks 
throughout all elements of the public transportation system.'' This 
requirement would extend beyond mere maintenance and training, and in 
this final rule, FTA makes clear that transit agencies should address 
safety risks in all aspects of their systems, including maintenance, 
training, operations, construction of new facilities, rehabilitation of 
existing facilities, etc. Moreover, the statutory provisions of 49 
U.S.C. 5329(d) require States to ``draft'' and ``certify'' safety plans 
on behalf of small Section 5307 operators. States cannot merely review 
plans if one of these transit agencies has ``safety issues.''
    FTA appreciates the comment that it received regarding occupational 
health issues. To the extent that occupational health issues may be 
safety hazards and present safety risks, transit agencies should be 
addressing them through the SMS processes outlined in their safety 
plans. FTA will issue rules regarding operator assault in the future.
    Regarding the establishment of ``zero'' as the only feasible goal 
in performance targets, FTA only is creating safety performance 
measures by which transit agencies are to set performance targets. FTA 
is not mandating any particular goal or target; it is deferring to each 
transit agency, MPO, and State and to set targets for each of their 
unique systems and geographical areas.
    Finally, FTA notes that this final PTASP rule does not establish 
guidelines for rail vehicle crashworthiness. Please see the National 
Public Transportation Safety Plan, available on FTA's website, for more 
information regarding safety performance standards for public 
transportation vehicles.

W. Regulatory Impact Analyses

1. Costs
    Comments: One commenter concluded that FTA underestimated the costs 
associated with the implementation of the rule. Similarly, a transit 
agency estimated cost increases to ensure compliance with the rule.
    Several commenters provided specific cost estimates related to the 
proposed requirements. One commenter remarked that upgrading its 
surveillance system on buses would cost approximately $2 million and 
that it installed driver barriers in 30 new buses, at a cost of $4,202 
per barrier, totaling $126,060. This commenter stated that the 
additional recordkeeping could require the purchase of new equipment 
and tracking software and the hiring and training of additional staff, 
which would result in costs of at least $4 million. This commenter 
asserted that staffing at the administrative level would cost about 
$85,000 annually and contractor personnel would cost about $75,000 
annually. This commenter asserted that training for administrative 
staff would cost about $30,000 per person, and training for contractor 
personnel would cost about $10,000 per person. One commenter estimated 
that it would cost a State $200,000 annually to adequately perform any 
oversight responsibilities. One commenter estimated that its initial 
investment could reach at least $1 million for a risk management 
information system, training, and personnel. One commenter stated that 
it could not estimate the cost of coordination with MPOs on the 
establishment of performance targets.
    Response: FTA appreciates the comments on the costs of the proposed 
rule. It is a challenge to develop cost estimates for the rule that can 
be representative of any one agency given the differences in agency 
size, modes, location, and level of maturity of safety programs. The 
regulatory analysis acknowledges that mitigation costs of identified 
risks are not included in the estimated cost of the proposed rule. The 
cost of onboard surveillance systems and driver barriers are mitigation 
costs. Typically, a transit agency makes these types of investment 
decisions with the understanding that there will be benefits of the 
mitigation that exceed the costs of the mitigation. Today's rule does 
not recommend any specific mitigation, and does not require agencies to 
implement mitigations that have greater costs than benefits.
    The annual personnel costs of recordkeeping cited by the commenter 
are considerably higher than the estimated cost in the proposed rule. 
FTA's cost estimate for this particular type of agency is $20,000 for 
staff; $15,000 for information technology; and $4,000 for training, 
excluding travel costs. FTA cannot estimate costs for specific 
agencies, since FTA does not know how these costs would vary by size 
within each category. The larger the agency, the greater the amount of 
data and records that need to be maintained, with the possibility of 
significant economies of scale for certain recordkeeping tasks, but 
increased complexity in others, possibly requiring more sophisticated 
systems than those of the smaller agencies. It is possible that a large 
transit agency may need one additional full time staff and a contractor 
(at a total cost of $160,000 per year) to maintain records. Most 
likely, these individuals would be performing other duties. It also is 
possible that the initial set up costs may be higher for those who may 
not have the expertise in this area. FTA does not anticipate that these 
costs will be continual. Therefore, while FTA accepts that the cost 
estimates in the NPRM may be low for some agencies, FTA does not 
believe that the costs would be as high as suggested by the commenter 
and continuous into the future.
    The commenter's estimated cost of $200,000 for ``oversight'' is 
significantly higher than FTA's estimated total State cost estimate of 
$18,000. FTA emphasizes it is not requiring States to conduct safety 
oversight through this rule; FTA is only requiring States to draft and 
certify safety plans on behalf of particular operators of public 
transportation systems. Moreover, with today's rule, FTA is providing a 
safety plan template which significantly will reduce costs to States 
and operators, particularly for the smaller operators. Therefore, FTA 
believes that the commenter overestimated the costs significantly.
    The commenter's $1 million estimate for a risk management 
information system and associated staff may not be unreasonable. FTA 
estimates annual costs in the range of $15,000 to $20,000 for 
information technology systems for rail transit agencies and for large 
bus operators that receive Section 5307 funds. FTA estimates additional 
staff costs for risk assessment and assurance activities of 
approximately $60,000 per year for large Section 5307 operators. These 
costs would total $1 million over a span of thirteen years, at which 
time information technology systems may need to be updated. It is 
possible that the costs would be higher during the initial years and 
significantly reduced in subsequent years. Also, it is possible that 
the information technology system will be used for multiple tasks, some 
of which may not be related to this rule.
2. Benefits
    Comments: One commenter questioned what benefit, if any, would be 
achieved from the rule if FTA is unable to provide evidence to show 
that the implementation of the rule would increase safety and reduce 
transit incidents. The commenter asserted that it seems unreasonable to 
require an ``economically significant'' expenditure of limited transit 
agency funds when

[[Page 34453]]

funds should be used for state of good repair and transit asset 
management needs. Another commenter concluded that FTA is premature in 
estimating economic benefits through the Regulatory Impact Analysis 
before this rulemaking is effective and implemented.
    One commenter stated that a positive return on investment (ROI) may 
not be possible without adequate resources, and this commenter asserted 
that the NPRM does not specify whether an ROI would exceed a break-even 
point. The commenter asked to review actual results of implementing SMS 
to help justify the anticipated level of investment, suggesting that 
SMS should be piloted in a few transit agencies before being 
implemented nationally.
    Response: As discussed in other sections of this rule and as 
discussed in more detail below, today's regulatory provisions are 
required by statute under 49 U.S.C. 5329(d), and FTA is implementing 
SMS in the least prescriptive way possible.
    Safety Management Policy is the foundation of the organization's 
SMS. The safety management policy statement clearly states the 
organization's safety objectives and sets forth the policies, 
procedures, and organizational structures necessary to accomplish the 
safety objectives. It clearly delineates management and employee 
responsibilities for safety throughout the organization. It also 
ensures that management is actively engaged in the oversight of the 
organization's safety performance by requiring regular review of the 
safety policy by a designated Accountable Executive (general manager, 
president, or other person with similar authority). Within the context 
of the Public Transportation Agency Safety Plan, an organization's 
safety objectives will be articulated through the setting of 
performance targets based on, at a minimum, the safety performance 
measures established in the National Public Transportation Safety Plan. 
See 49 U.S.C. 5329(d)(1)(E).
    Pursuant to the statutory requirements of 49 U.S.C. 5329(d)(1)(B) 
and (C), each agency's Public Transportation Agency Safety Plan must 
include ``methods for identifying and evaluating safety risks 
throughout all elements of the public transportation system,'' and 
``strategies to minimize the exposure of the public, personnel, and 
property to hazards and unsafe conditions.'' Each of these requirements 
is consistent with the second component of SMS--Safety Risk 
Management--which requires the development of processes and activities 
to help the organization better identify hazards associated with its 
operational systems. Once identified, a transit agency must evaluate 
the safety risk associated with the potential consequences of these 
hazards, and then institute mitigations, as necessary, to control the 
consequences or minimize the safety risk.
    The statutory requirements of 49 U.S.C. 5329(d)(1)(B), (C), and 
(D)--``methods for identifying and evaluating safety risks throughout 
all elements of the public transportation system,'' ``strategies to 
minimize the exposure of the public, personnel, and property to hazards 
and unsafe conditions,'' and ``a process and timeline for conducting an 
annual review and update of the safety plan''--encompass the 
requirements of the third component of SMS: Safety Assurance. Safety 
Assurance requires an organization to monitor its safety performance, 
and it is designed to ensure that the organization meets or exceeds its 
safety objectives through the collection, analysis, and assessment of 
data. Through regular reviews and updates of its safety plan, a transit 
agency would evaluate changes to its operations that might introduce 
new safety risks. If a transit agency identifies safety risks through 
its safety performance assessments, then it must take action to correct 
any safety deficiencies. All of these efforts are intended to minimize 
the exposure of the public, personnel, and property to safety hazards 
and unsafe conditions. To minimize administrative, financial, and 
regulatory burdens under Safety Assurance, FTA has reduced requirements 
for small public transportation providers and has developed a minimal 
set of Safety Assurance provisions under 49 CFR 673.27.
    The fourth component of SMS--Safety Promotion--involves the 
training, awareness, and communication that support safety. The 
training aspect of SMS is consistent with the statutory requirement of 
49 U.S.C. 5329(d)(1)(G) for a comprehensive staff training program for 
operations personnel and personnel directly responsible for safety.
    FTA is intending to implement 49 U.S.C. 5329(d) in the least 
prescriptive way possible by designing minimalistic regulatory 
requirements that mirror the relevant statutory provisions. By 
utilizing SMS in the regulatory framework, transit operators of varying 
sizes, complexities, and operating characteristics can build safety 
plans that are flexible and scalable to meet their unique safety needs. 
Through its scalability, SMS helps reduce the costs and burdens 
associated with developing and implementing safety plans. Also, as 
noted above, FTA eliminated several significant Safety Assurance 
requirements for small public transportation providers in this final 
rule.
    While FTA is unable to provide definitive evidence that the 
implementation of this rule would increase safety by reducing incidence 
of safety events, FTA fully anticipates that safety benefits will be 
realized if this rule is implemented. By adopting a systematic approach 
to safety through the development of the safety plan and the practice 
of SMS, transit agencies are expected to reduce the risk and 
probability of safety incidents. FTA expects that a proactive approach 
to managing safety risks is more effective than a reactive approach. 
The SMS approach to safety, which involves collecting data, predicting 
and mitigating future safety events, training, accountability, and open 
communication will reduce safety events and improve safety outcomes in 
the future. Indeed, state of good repair investments could prevent and 
mitigate future safety events.
    FTA currently is conducting an SMS pilot program at a large multi-
modal transit agency and is planning to implement two additional pilot 
programs for bus agencies to better understand how a transit agency 
would implement SMS. The results of these pilot programs will help 
inform FTA's efforts to provide guidance to the industry on SMS 
implementation. FTA notes that the benefits of SMS implementation may 
take years to be realized, and in turn, taking time for the benefits of 
SMS to be fully estimated and quantified.
    In light of various public comments, FTA is deferring regulatory 
action regarding the applicability of this rule to operators of public 
transportation systems that only receive Section 5310 and/or Section 
5311 funds. FTA is deferring action pending further evaluation of 
additional information and safety data related to these operators to 
determine the appropriate level of regulatory burden necessary to 
address the safety risk presented by these operators.
    Six years after the compliance date for this rule, FTA plans to 
prepare a report evaluating the benefits and effectiveness of the 
regulatory framework provided by this rule. In this report, FTA plans 
to utilize the results of the pilot program and information gathered 
from oversight reviews, which will include an evaluation of the 
flexibility and scalability of the SMS framework in developing and 
implementing safety

[[Page 34454]]

plans. The results in this report will be made available for public 
comment to help inform any future amendments that may be needed to the 
regulatory framework that improves the PTASP process and furthers the 
goal of public transportation safety.
3. Regulatory Flexibility Act
    Comments: Several commenters provided input on the rule's impact to 
small entities. Several commenters asserted that small to medium sized 
transit agencies face budget constraints and expressed concern that 
these agencies may need to hire additional staff to comply with the 
rule or reduce transit service.
    Several commenters expressed concern that FTA crafted the NPRM with 
only rail transit systems in mind. One commenter stated that the 
excellent safety record of rural transit systems warrants a limited 
approach to Federal safety regulation regarding rural bus systems, 
which would enable operators to focus scarce resources on safely 
delivering transit services, not on regulatory compliance. The 
commenter warned that if FTA does not tailor the rule to small transit 
systems, then many small bus operators would have to shift funds and 
personnel from the actual delivery of service to compliance with safety 
rules. The commenter asserted that MAP-21 reduced the portion of 
Section 5311 funds available for program administration from 15 percent 
to 10 percent. The commenter noted that, in Senate Report 3638, the 
Senate Committee on Banking, Housing, and Urban Affairs indicated its 
intent that FTA take a ``measured approach,'' and not a ``one size fits 
all'' approach, to safety.
    One commenter stated that FTA's Regulatory Flexibility Act analysis 
is somewhat misleading, particularly where tribal governments are 
concerned. Due to the modest amount of funding available to tribes, the 
commenter concluded that the cost associated with developing a safety 
plan for tribal governments is much higher than FTA's estimate of 0.5 
to 1.5 percent; the commenter asserted that the costs are closer to 5.5 
to 15.5 percent.
    Response: FTA has taken significant efforts to reduce the burden on 
small transit agencies. For small Section 5307 operators, FTA is 
requiring States to draft and certify their safety plans. FTA designed 
the requirements of today's rule, particularly the SMS requirements, to 
be scalable, flexible, and not prescriptive for small transit 
operators. Moreover, FTA developed a safety plan template for small 
operators to assist them with the development of their plans. FTA is 
offering live and online training to small transit operators, and it is 
offering any technical assistance that might be needed. FTA notes that 
many small transit agencies already have processes and procedures in 
place that comply with the requirements of today's rule, and given the 
safety record of many smaller operators, significant mitigation may not 
be necessary. FTA emphasizes that the statutory requirements of 49 
U.S.C. 5329 make the rule applicable to any operator of a public 
transportation system, and small operators are not excluded from the 
rule.
    To accommodate small public transportation providers and to reduce 
their administrative, financial, and regulatory burdens, FTA made 
significant changes to its proposed regulatory framework in the NPRM. 
FTA eliminated a Safety Assurance requirement for all transit agencies 
to monitor their operations to identify hazards not identified through 
their Safety Risk Management processes. Also, FTA eliminated an entire 
section of recordkeeping requirements related to safety risk 
mitigation, safety performance assessments, and employee safety 
training. FTA further tailored the rule for small operators and reduced 
their requirements under Safety Assurance. Small public transportation 
providers only need to develop processes for safety performance 
monitoring and measurement; they do not need to develop processes for 
management of change and continuous improvement. Through the 
elimination of these requirements for small public transportation 
providers, and through this tailored approach, FTA believes that it has 
reduced their burdens significantly.
    Finally, FTA notes that in light of various public comments, FTA is 
deferring regulatory action regarding the applicability of this rule to 
operators of public transportation systems that only receive Section 
5310 and/or Section 5311 funds. FTA is deferring action pending further 
evaluation of information and safety data related to these operators to 
determine the appropriate level of regulatory burden necessary to 
address the safety risk presented by these operators.

X. Tribal Issues

1. Applicability of the Rule to Tribes
    Comments: Several commenters suggested that some tribes operate 
modest public transportation systems and receive Federal financial 
assistance through either the discretionary or formula tribal transit 
programs under 49 U.S.C. 5311. One commenter stated that some tribes 
receive funds as subrecipients of States under 49 U.S.C. 5311, and 
therefore, FTA should exclude those subrecipients from this rule. The 
commenter also requested FTA to clarify the applicability of this rule 
to tribes. Finally, this commenter recommend that FTA's final rule 
exempt tribes from the definition of ``recipient'' under the proposed 
provisions of 49 CFR 673.1 until FTA has undertaken additional 
consultation with tribes and develops a template safety plan.
    Response: FTA appreciates the commenter who stated that tribes 
operate modest public transportation systems, and in response, FTA has 
designed this rule to be as flexible and scalable as possible for 
smaller operators. In light of various public comments, FTA is 
deferring regulatory action regarding the applicability of this rule to 
operators of public transportation systems that only receive Section 
5310 and/or Section 5311 funds, including tribal transit operators. FTA 
is deferring action pending further evaluation of additional 
information and safety data related to these operators to determine the 
appropriate level of regulatory burden necessary to address the safety 
risk presented by these operators.
    FTA has undertaken consultation with tribes throughout this 
rulemaking, and these efforts are described in more detail below.
2. The State's Role in Tribal Safety Plans
    Comments: A few commenters recommended that FTA require tribes to 
develop their own safety plans, even if they are a State's 
subrecipients under 49 U.S.C. 5311, unless a State voluntarily agrees 
to draft and certify a safety plan for a tribal subrecipient. Some 
commenters expressed concerns that a State's preparation of safety 
plans for tribes could interfere with tribal sovereignty. One commenter 
suggested that a State's interaction with a tribe in relation to a 
safety plan is unwarranted and inconsistent with the laws and treaties 
that govern the status and protections for tribes. The commenter 
asserted that the Tribal Transit Program funded under 49 U.S.C. 5311(c) 
is not a subset of the Section 5311 program; it is a separate and 
direct tribal program and the rules associated with its administration 
should be structured accordingly. Several commenters stated that there 
often are positive relationships between States and tribes, but FTA 
should not treat tribes as subcomponents of State transit systems given 
the independent status of tribes.

[[Page 34455]]

One commenter expressed concern that FTA would be less willing to 
provide technical assistance to tribes if States draft and certify 
their safety plans.
    Response: FTA recognizes the administrative and financial burdens 
that this rule may impose upon smaller transit operators, such as 
tribes. In an effort to relieve this burden, FTA is deferring 
regulatory action regarding the applicability of this rule to operators 
of public transportation systems that only receive Section 5310 and/or 
Section 5311 funds, including tribal transit operators. FTA is 
deferring action pending further evaluation of information and safety 
data to determine the appropriate level of regulatory burden necessary 
to address the safety risk presented by these operators.
3. Financial Impact on Tribes
    Comments: Several commenters stated that the proposed rule would 
result in administrative costs to tribes, such as costs for additional 
staff time and resources. One commenter stated that, like many other 
smaller transit agencies, tribal transit managers may have many 
different roles and shared duties, so the requirement for an 
Accountable Executive may be problematic because the staff are not 
structured in the way the proposed rule seems to envision. The 
commenter said that compliance with the rule may require consultants or 
new staff to handle the extra reporting paperwork and separation of 
positions, which would be difficult with limited resources. This 
commenter recommended that FTA should incorporate the following 
language somewhere into its rule: ``at agencies where such delineations 
exist between administrative positions.''
    Several commenters noted that some tribes receive limited funding. 
One commenter stated that the average annual apportionment for tribal 
transit agencies is almost $220,000 and the average annual 
discretionary award is about $77,000, and some of 100 tribes 
participating in the Tribal Transit Program have apportionments as low 
as $4,000 annually. Several commenters argued that, for a tribe whose 
only source of Federal funding for its Tribal Transit Program is a 
$25,000 grant, the compliance costs associated with this rule (such as 
personnel time and the possible need for outside consultants) could 
easily consume the entire grant. The commenter stated that, although 
States divide more than $8.6 billion in Federal transit grants for 
Federal Fiscal Year 2016, tribes receive only $30 million under the 
Tribal Transit Program and an extra $5 million for the discretionary 
Tribal Transit Program under 49 U.S.C. 5311.
    Response: FTA acknowledges that many smaller transit operators, 
including tribes, may experience substantial costs in complying with 
this rule. In light of the potential financial burden on smaller 
operators, including tribes, FTA is deferring regulatory action 
regarding the applicability of this rule to operators of public 
transportation systems that only receive Section 5310 and/or Section 
5311 funds. FTA is deferring action pending further evaluation of 
information and safety data related to determine the appropriate level 
of regulatory burden necessary to address the safety risk presented by 
these operators.
4. Tribal Consultation
    Comments: Several commenters expressed concern regarding FTA's 
consultation with tribes. Several commenters alleged that FTA conducted 
no consultation with tribes, including meetings, conference calls, or 
webinars. Several commenters suggested that FTA conduct additional 
consultation with tribes, particularly given their smaller sizes.
    Several commenters disagreed with FTA's preliminary determination 
that the rule would not have a substantial direct effect on tribes or 
impose substantial direct compliance costs on tribes, which is the 
criteria that would trigger tribal consultation under Executive Order 
13175 and the U.S. Department of Transportation's tribal consultation 
policy. One commenter stated that the rule would have direct effects on 
tribes by adding regulatory requirements on them, thus changing the 
relationship between tribes and the Federal government with respect to 
the inspection, investigation, audits, examinations, and testing of 
transit infrastructure and rolling stock. This commenter expressed 
concern that courts have emphasized the need for advance consultation 
with tribes on rulemaking efforts that may impact them, and cited 
Wyoming v. Department of the Interior in which the U.S. District Court 
for the District of Wyoming issued a preliminary injunction against 
Bureau of Land Management's hydraulic fracturing regulations because 
the agency failed to adequately consult with tribes.
    Another commenter stated that the promulgation of this rule may 
conflict with the Tribal Self-Governance Program created by the FAST 
Act, and asserted that the Tribal Self-Governance Program requires a 
negotiated rulemaking committee to develop rules and regulations for 
all modes of funding and U.S. Department of Transportation programs, 
led by the U.S. Department of Transportation's Deputy Assistant 
Secretary for Tribal Government Affairs.
    One commenter suggested that, instead of requiring States to draft 
and certify safety plans on behalf of tribes, FTA should work with 
tribes to develop a model safety plan specifically for tribes.
    Response: As a preliminary matter, FTA notes that it conducted 
extensive outreach with tribes throughout this rulemaking. 
Specifically, on February 12, 2016, FTA conducted public outreach for 
tribes and hosted a Tribal Technical Assistance Workshop wherein FTA 
presented its proposed rule and responded to numerous technical 
questions from tribes. FTA subsequently delivered the same presentation 
during a webinar series open to all members of the public on February 
24, March 1, March 2, and March 3. On March 7, FTA delivered the same 
presentation at an outreach session hosted by the National Rural 
Transit Assistance Program, which also was open to all members of the 
public. During each of these public outreach sessions and the public 
webinar series, FTA received and responded to numerous technical 
questions regarding the NPRM. FTA recorded the presentations, including 
the question and answer sessions, and made available the following 
documents on the public docket for this rulemaking (Docket FTA-2015-
0021): (1) FTA's PowerPoint Presentation from the public outreach 
sessions and public webinar series (https://www.regulations.gov/document?D=FTA-2015-0021-0012); (2) a written transcript of FTA's 
public webinar of March 1, 2016 (https://www.regulations.gov/document?D=FTA-2015-0021-0010); (3) a consolidated list of every 
Question and FTA Answer from the public outreach sessions and public 
webinar series (https://www.regulations.gov/document?D=FTA-2015-0021-0041); and (4) the results of polling questions from FTA's public 
outreach sessions (https://www.regulations.gov/document?D=FTA-2015-0021-0011). FTA also uploaded onto YouTube an audiovisual recording of 
its webinar from March 1, 2016. The video is available at the following 
link: https://www.youtube.com/watch?v=FBj5HRatwGA&feature=youtu.be.
    FTA also notes that, in advance of publishing an NPRM, FTA sought 
comment from the transit industry, including tribes, on a wide range of 
topics pertaining to safety and asset management through an ANPRM. In 
the

[[Page 34456]]

NPRM, FTA asked specific questions about how today's rule should apply 
to tribal recipients and subrecipients of Section 5311 funds.
    In light of the comments that FTA received from tribes throughout 
the rulemaking process, FTA is deferring regulatory action regarding 
applicability of this rule to operators of public transportation 
systems that only receive Section 5310 and/or Section 5311 funds, 
including tribal transit operators. FTA is deferring action pending 
further evaluation of additional information and safety data to 
determine the appropriate level of regulatory burden necessary to 
address the safety risk presented by these operators.

IV. Section-by-Section Analysis

Subpart A--General

673.1 Applicability
    This section explains that this regulation applies to all States, 
local governmental authorities, and other operators of public 
transportation systems that are recipients and subrecipients of Federal 
financial assistance under 49 U.S.C. Chapter 53. At this time, the 
regulation does not apply to an operator of a public transportation 
system that only receives Federal financial assistance under 49 U.S.C. 
5310, 49 U.S.C. 5311, or both 49 U.S.C. 5310 and 49 U.S.C. 5311. In 
accordance with 49 U.S.C. 5329(d), a Public Transportation Agency 
Safety Plan is required of all operators of public transportation 
systems, whereas in the past, a ``system safety program plan'' only was 
required of rail fixed guideway public transportation systems, in 
accordance with the former regulatory provisions at 49 CFR 659.17. Each 
operator of a public transportation system must comply with today's 
rule within one calendar year of this rule's effective date.
673.3 Policy
    This section explains that FTA is utilizing the principles and 
methods of SMS as the basis for this regulation and all other 
regulations and policies FTA has issued and will issue under the 
authority of 49 U.S.C. 5329, to the extent practicable and consistent 
with law and other applicable requirements (such as those for 
regulatory review). FTA's standards for SMS are flexible and scalable 
and may be tailored to the size and operating complexity of the transit 
operator.
673.5 Definitions
    This section sets forth a number definitions, many of which are 
based on the principles and methods of SMS. Most notably, readers 
should refer to ``Accountable Executive,'' ``Hazard,'' ``Operator of a 
Public Transportation System,'' ``Safety Assurance,'' ``Safety 
Management System,'' ``Safety Management Policy,'' ``Safety 
Promotion,'' ``Safety Risk Management,'' and ``Small Public 
Transportation Provider.'' In recent years, SMS has emerged as the 
preferable practice for enhancing safety in all modes of 
transportation, and the Secretary of Transportation instructed each of 
the Department's operating administrations to develop rules, plans, and 
programs to apply SMS to their grant recipients and regulated 
communities. Many of the SMS-related definitions in Sec.  673.5 are 
similar to those set forth in FAA's SMS regulation, entitled ``Safety 
Management Systems for Domestic, Flag, and Supplemental Operations 
Certificate Holders,'' 14 CFR parts 5 and 119, 80 FR 1308, Jan. 8, 
2015.
    Additionally, a set of frequently asked questions about SMS are 
available on FTA's website at http://www.fta.dot.gov/tso_15177.html. 
FTA is incorporating these same definitions for SMS in its related 
rulemakings for the Public Transportation Safety Program and the Public 
Transportation Safety Certification Training Program, and FTA is 
incorporating these same definitions into the National Public 
Transportation Safety Plan.
    FTA includes a definition for ``Accountable Executive'' that 
identifies the person at a transit agency that has the responsibility 
and accountability for the implementation of SMS and control and 
direction of the Public Transportation Agency Safety Plan and the 
Transit Asset Management Plan. FTA includes definitions for ``Safety 
Risk Management,'' ``Risk,'' ``Safety Assurance,'' and ``Safety 
Management Policy,'' all key terms to the implementation of SMS.
    This section also defines a number of terms used repeatedly 
throughout the other safety programs authorized by 49 U.S.C. 5329. Some 
of these terms are included in FTA's new State Safety Oversight Rule at 
49 CFR part 674, which was issued prior to today's final rule. FTA 
intends to have the same definitions for all terms utilized in its 
safety programs. Readers should refer, specifically, to the definitions 
of ``Accident,'' ``Event,'' ``Hazard,'' ``Incident,'' 
``Investigation,'' ``Occurrence,'' ``Transit Agency,'' and ``Rail 
Transit Agency.'' FTA has updated its definitions of ``Accountable 
Executive,'' ``Safety Risk Assessment,'' ``Safety Risk Management,'' 
and ``Transit Asset Management Plan'' to make them consistent with 
definitions of these terms utilized in the SSO rule and the Transit 
Asset Management rule which were issued prior to today's final rule. 
FTA also added a definition of ``Rail Fixed Guideway Public 
Transportation System,'' which it defined in its SSO rule.
    Pursuant to 49 U.S.C. 5329(d)(3)(B), FTA must issue a rule that 
designates which 49 U.S.C. 5307 small public transportation providers 
may have States draft Public Transportation Agency Safety Plans on 
their behalf. This section defines ``Small Public Transportation 
Provider'' (in accordance with 49 U.S.C. 5329(d)(3)(B)) as ``a 
recipient or subrecipient of Federal financial assistance under 49 
U.S.C. 5307 that has one hundred (100) or fewer vehicles in peak 
revenue service and does not operate a rail fixed guideway public 
transportation system.''
    FTA includes definitions for the terms ``National Public 
Transportation Safety Plan,'' ``Transit Asset Management Plan,'' and 
``Equivalent Authority,'' all of which are consistent with the use of 
those terms in the statutes and FTA's related rulemakings on safety and 
transit asset management.

Subpart B--Public Transportation Agency Safety Plans

673.11 General Requirements
    This section outlines the minimum elements to be included in a 
Public Transportation Agency Safety Plan. Pursuant to 49 U.S.C. 
5329(d)(1), this section requires each operator of public 
transportation subject to this rule to develop and certify that it has 
a Public Transportation Agency Safety Plan consistent with this part. 
In accordance with 49 U.S.C. 5329(d)(3)(B), Sec.  673.11(d) requires 
each State to draft the Public Transportation Agency Safety Plan for 
small transportation providers as defined in today's final rule. A 
State is not required to develop a Public Transportation Agency Safety 
Plan for a small public transportation provider if that agency notifies 
the State that it will develop its own plan.
    In accordance with 49 U.S.C. 5329(d)(1)(A), Sec.  673.11(a)(1) 
requires that each Public Transportation Agency Safety Plan, and any 
updates thereto, must be signed by the transit agency's designated 
Accountable Executive and approved by the transit agency's Board of 
Directors, or an Equivalent Authority. In today's final rule, the 
accountability for the contents of a Public Transportation Agency 
Safety Plan is formally elevated to the Accountable Executive and Board 
of Directors.

[[Page 34457]]

    In accordance with 49 U.S.C. 5329(d)(1)(B), (C), (D), (E), (F), and 
(G), a transit agency must establish: Methods for identifying and 
evaluating safety risks throughout all elements of its public 
transportation system; strategies to minimize the exposure of the 
public, personnel, and property to hazards and unsafe conditions; a 
process and timeline for conducting an annual review and update of its 
safety plan; safety performance targets; a Chief Safety Officer who 
reports directly to the general manager, president, or equivalent 
officer; and a comprehensive staff training program for the operations 
personnel and personnel directly responsible for safety. These 
statutory requirements fit into the four key pillars of SMS: Safety 
Management Policy, Safety Risk Management, Safety Assurance, and Safety 
Promotion. Consequently, FTA is requiring each transit agency to 
develop and implement an SMS under Sec.  673.11(a)(2); this SMS will 
satisfy the statutory requirements of 49 U.S.C. 5329(d)(1)(B), (C), 
(D), (E), (F), and (G). FTA recognizes that a Public Transportation 
Agency Safety Plan for a large, multi-modal, complex public 
transportation system most likely will be more complex than that of a 
very small bus operator. The scalability of SMS will allow transit 
agencies to develop safety plans that will meet the unique needs of 
their operating environments. FTA established a minimal set of Safety 
Assurance requirements for small public transportation providers to 
minimize their administrative, financial, and regulatory burdens.
    In accordance with 49 U.S.C. 5329(d)(1)(E), Sec.  673.11(a)(3) 
requires that each Public Transportation Agency Safety Plan must 
include safety performance targets based on the safety performance 
measures established by FTA in the National Public Transportation 
Safety Plan. In the National Public Transportation Safety Plan, FTA is 
adopting four initial safety performance measures: (1) Fatalities, (2) 
Injuries, (3) Safety Events, and (4) System Reliability. These safety 
performance measures are intended to reduce safety events, fatalities, 
and injuries. These measures are broad so that they will be relevant to 
all public transportation modes, and they are intended to focus transit 
agencies on the development of specific and measureable targets, as 
well as the actions each agency would implement to improve their own 
safety outcomes. Through the SMS process, FTA expects transit agencies 
to develop their own performance indicators and regularly monitor the 
performance of their systems to ensure that they are meeting their 
targets and improving safety outcomes. FTA expects transit agencies to 
evaluate their safety performances and determine whether they should 
change their safety performance targets at least annually when the 
transit agencies are reviewing and updating their Public Transportation 
Agency Safety Plans. A State or transit agency must make its safety 
performance targets available to States and Metropolitan Planning 
Organizations (MPO) to aid States and MPOs in the selection of their 
own performance targets.
    Pursuant to Sec.  673.11(a)(4), each Public Transportation Agency 
Safety Plan must address any standards or requirements, as applicable, 
set forth in FTA's Public Transportation Safety Program and FTA's 
National Public Transportation Safety Plan.
    In accordance with 49 U.S.C. 5329(d)(1)(D), Sec.  673.11(a)(5) 
requires that each transit agency must establish a process and timeline 
for conducting an annual review and update of its Public Transportation 
Agency Safety Plan.
    Pursuant to Sec.  673.11(a)(6), each rail transit agency must 
include, or incorporate by reference, in its Public Transportation 
Agency Safety Plan an emergency preparedness and response plan. Each 
emergency preparedness and response plan should address, at a minimum: 
The assignment of employee responsibilities, as necessary and 
appropriate, during an emergency; the integration of responses to all 
hazards, as appropriate; and processes for coordination with Federal, 
State, regional, and local officials with roles and responsibilities 
for emergency preparedness and response in the transit agency's service 
area. FTA understands that a transit agency may have developed an 
emergency preparedness and response plan that addresses these minimum 
requirements in accordance with regulations from other Federal and 
State agencies. Historically, FTA has required rail fixed guideway 
public transportation systems to have emergency preparedness plans 
through the former State Safety Oversight rule at 49 CFR 659.19(k). FTA 
intends to require rail transit systems to continue to implement the 
twenty-one elements of their SSPPs as required under the former 
provisions of 49 CFR part 659; FTA has repackaged the elements of SSPPs 
into the four elements of SMS required in today's rule. FTA is 
establishing the requirement for emergency preparedness and response 
plans in today's rule under Sec.  673.11(a)(6), and the elements of SMS 
in Subpart C cover remaining requirements. FTA has developed a 
crosswalk between each of the twenty-one elements of system safety 
program plans and each of the elements of SMS. FTA added this crosswalk 
to the docket and made the crosswalk available on its website as a 
guidance document at http://fta.dot.gov/tso.html. Additional, more 
comprehensive guidance regarding the relationship between SSPPs and 
PTASPs is forthcoming, and FTA will post that guidance on its website 
(see https://www.transit.dot.gov/regulations-and-guidance/safety/transit-safety-oversight-tso).
    FTA notes that there are safety models that include emergency 
preparedness as a key element. For example, FAA requires certain air 
carriers to have emergency preparedness plans. See 14 CFR 5.27. 
Additionally, FRA recently issued a final System Safety Program rule 
under 49 CFR part 270 which requires railroads to have emergency 
preparedness plans (see http://www.fra.dot.gov/eLib/Details/L18294). 
Recent safety-related events have demonstrated the need for emergency 
preparedness plans in improving safety outcomes nationally.
    In addition to the above general requirements, FTA expects a 
transit agency to comply with all other applicable Federal, State, and 
local requirements, laws, regulations, and codes as they may relate to 
safety.
    Pursuant to Sec.  673.11(b), a transit agency may develop one 
Public Transportation Agency Safety Plan for all modes of transit 
service, or it may develop separate Public Transportation Agency Safety 
Plans for each mode of service not subject to safety regulation by 
another Federal entity. If a transit agency has a safety plan for its 
commuter rail service, passenger ferry service, or aviation service, 
then the transit agency may not use that plan for purposes of 
satisfying 49 CFR part 673; the transit agency must develop a separate 
Public Transportation Agency Safety Plan consistent with this part.
    Pursuant to Sec.  673.11(c), each transit agency must maintain its 
Public Transportation Agency Safety Plan in accordance with the 
recordkeeping requirements of Subpart D.
    Pursuant to Sec.  673.11(d), each State must draft and certify a 
Public Transportation Agency Safety Plan on behalf of any small public 
transportation provider located inside of that particular State. A 
State is not required to draft a Public Transportation Agency Safety 
Plan if a small public transportation provider notifies the State that 
it will draft its own plan. In either instance, the transit agency must

[[Page 34458]]

ultimately implement and carry out its safety plan.
    If a State drafts and certifies a Public Transportation Agency 
Safety Plan on behalf of a transit agency, and the transit agency later 
opts to draft and certify its own Public Transportation Agency Safety 
Plan, then the transit agency must notify the State, and the transit 
agency would have one year from the date of the notification to draft 
and certify a Public Transportation Agency Safety Plan that is 
compliant with this part.
    Pursuant to Sec.  673.11(e), any rail fixed guideway public 
transportation system that had an SSPP, in accordance with the former 
SSO rule at 49 CFR part 659 as of October 1, 2012, may keep that plan 
in effect until one year after the effective date of this final rule.
    Pursuant to Sec.  673.11(f), agencies that operate passenger 
ferries regulated by USCG or rail fixed guideway public transportation 
service regulated by FRA are not required to develop safety plans for 
those modes of service.
673.13 Certification of Compliance
    In accordance with 49 U.S.C. 5329(d)(1), Sec.  673.13(a) provides 
that not later than one year after the effective date of the final 
rule, each transit agency must certify its compliance with the 
requirements of this part. For small public transportation providers, a 
State must certify compliance unless the provider opts to draft and 
certify its own safety plan. In those cases where a State certifies 
compliance for a small public transportation provider, this 
certification also must occur within one year after the effective date 
of this final rule.
    In addition to certification, and consistent with the new SSO rule 
at 49 CFR part 674, each SSOA must review and approve each Public 
Transportation Agency Safety Plan for every rail transit system within 
its jurisdiction. In accordance with 49 U.S.C. 5329(e)(4)(iv), an SSOA 
must have the authority to review, approve, oversee, and enforce the 
implementation of the Public Transportation Agency Safety Plans of 
transit agencies operating rail fixed guideway public transportation 
systems.
    Section 673.13(b) requires that each transit agency or State 
certify compliance with part 673 on an annual basis.
673.15 Coordination With Metropolitan, Statewide, and Non-Metropolitan 
Planning Processes
    In accordance with 49 U.S.C. 5303(h)(2)(B) and 5304(d)(2)(B), each 
State and transit agency must make its safety performance targets 
available to States and Metropolitan Planning Organizations to aid in 
the planning process. Section 673.15(b) requires, to the maximum extent 
practicable, a State or transit agency to coordinate with States and 
Metropolitan Planning Organizations in the selection of State and MPO 
safety performance targets.

Subpart C--Safety Management Systems

673.21 General Requirements
    This section outlines the SMS elements that each transit agency 
must establish in its Public Transportation Agency Safety Plan. Under 
today's final, each transit agency must implement an SMS, and each 
transit agency should scale the SMS to the size, scope, and complexity 
of the transit agency's operations. Each transit agency must establish 
processes and procedures which include the four main pillars of SMS: 
(1) Safety Management Policy; (2) Safety Risk Management; (3) Safety 
Assurance; and (4) Safety Promotion. FTA expects that the scope and 
detail for each activity will vary based on the size and complexity of 
the system. FTA anticipates that activities, and documentation of those 
activities, for a small bus transit agency will be substantially less 
than those of a large multi-modal system. FTA has developed a minimal 
set of requirements under Safety Assurance for all small public 
transportation providers. To help clarify SMS development and 
implementation, FTA is issuing guidance and a safety plan template to 
the industry concurrent with today's final rule, and FTA designed these 
documents to accommodate the variance in transit system mode, size, and 
complexity.
673.23 Safety Management Policy
    Pursuant to Sec.  673.23(a), a transit agency must establish the 
organizational accountabilities and responsibilities necessary for 
implementing SMS and capture these under the first component of SMS, 
Safety Management Policy. The success of a transit agency's SMS is 
dependent upon the commitment of the entire organization and begins 
with the highest levels of transit agency management. The level of 
detail for organizational accountabilities and responsibilities should 
be commensurate with the size and complexity of the transit agency.
    The Safety Management Policy statement must contain the transit 
agency's safety objectives. These objectives should include a broad 
description of the agency's overarching safety goals, which would be 
based upon that agency's unique needs.
    Pursuant to Sec.  673.23(b), a transit agency must include in its 
Safety Management Policy statement a process that allows employees to 
report safety conditions to senior management. This process must 
provide protections for employees who report safety conditions to 
senior management and a description of behaviors that are unacceptable 
and that would not be exempt from disciplinary actions. These 
procedures are critical for ensuring safety. A reporting program allows 
employees who identify safety hazards and risks in the day-to-day 
duties to directly notify senior personnel, without fear of reprisal, 
so that the hazards and risks can be mitigated or eliminated. NTSB has 
emphasized the need for transit agencies to have non-punitive employee 
safety reporting programs,\3\ and this need was discussed at length in 
NTSB's Investigative Hearing on the WMATA Smoke and Electrical Arcing 
Incident in Washington, DC on June 23 and 24, 2015.\4\
---------------------------------------------------------------------------

    \3\ NTSB issued Safety Recommendation R-10/02 for the WMATA 
Metrorail train collision accident on June 22, 2009, found at: 
http://www.ntsb.gov/investigations/AccidentReports/Reports/RAR1002.pdf. Through this report, NTSB recommends that ``FTA 
facilitate the development of non-punitive safety reporting programs 
at all transit agencies [in order] to collect reports from employees 
in all divisions within their agencies.''
    \4\ See the NTSB's hearing materials at http://www.ntsb.gov/news/events/Pages/2015_WMATA_Washington_DC_IHG_Agenda.aspx. and 
http://dms.ntsb.gov/pubdms/search/document.cfm?docID=432379&docketID=57383&mkey=90596.
---------------------------------------------------------------------------

    Pursuant to Sec.  673.23(c), the Safety Management Policy statement 
must be communicated throughout the transit agency, including the Board 
of Directors (or equivalent authority), and each transit agency must 
make its Safety Management Policy statement readily available to all of 
its employees and contractors.
    Pursuant to Sec.  673.23(d), each transit agency must establish its 
accountabilities, responsibilities, and organizational structure 
necessary to meet its safety objectives, particularly as they relate to 
the development and management of the transit agency's SMS. The level 
of detail in this section of the safety plan should be commensurate 
with the size and complexity of a transit agency's operations. At a 
minimum, a transit agency must identify an Accountable Executive, a 
Chief Safety Officer or SMS Executive, and agency leadership, executive 
management, and key staff who would be responsible for the 
implementation of a transit agency's safety plan.

[[Page 34459]]

673.25 Safety Risk Management
    Pursuant to Sec.  673.25(a), each transit agency must establish and 
implement its process for managing safety risk, including the following 
three steps: (1) Safety hazard identification, (2) safety risk 
assessment, and (3) safety risk mitigation, for all elements of its 
public transportation system, including changes to its public 
transportation system that may impact safety performance. At a minimum, 
FTA expects each transit agency to apply its safety risk management 
process to its existing operations and maintenance procedures, the 
design of a new public transportation system and other capital 
projects, changes to its existing public transportation system, new 
operations of service to the public, new operations or maintenance 
procedures, organizational changes, and changes to operations or 
maintenance procedures. Additionally, FTA expects each transit agency 
to develop measures to ensure that safety principles, requirements, and 
representatives are included in the transit agency's procurement 
process.\5\
---------------------------------------------------------------------------

    \5\ See FTA's former State Safety Oversight rule at 49 CFR 
659.19(u).
---------------------------------------------------------------------------

    Pursuant to Sec.  673.25(b)(1), each transit agency must establish 
a process for safety hazard identification, including the 
identification of the sources, both proactive and reactive, for 
identifying hazards and their associated consequences. Activities for 
hazard identification could include formalized processes where a 
transit agency identifies hazards throughout its entire system, logs 
them into a database, performs risk analyses, and identifies mitigation 
measures. These activities also could include safety focus groups, 
reviews of safety reporting trends, and for smaller bus systems, it 
could mean holding a meeting with a few bus drivers, discussing hazards 
on the system, deciding which ones pose the greatest risk, and then 
developing mitigation.
    A transit agency must apply its process for safety hazard 
identification to all elements of its system, including but not limited 
to its operational activities, system expansions, and state of good 
repair activities. FTA encourages transit agencies to take into account 
bicycle and pedestrian safety concerns, along with other factors, as 
agencies are conducting Safety Risk Management.\6\ A transit agency 
should consider the results of its asset condition assessments when 
performing safety hazard identification activities within its SMS. The 
results of the condition assessments, and subsequent SMS analysis, will 
inform a transit agency's determination as to whether an asset meets 
the state of good repair standards under 49 CFR part 625.
---------------------------------------------------------------------------

    \6\ The United States Department of Transportation is 
administering a bicycle and pedestrian safety initiative, and FTA 
encourages transit agencies to consider that initiative when 
developing their safety plans (see https://www.transportation.gov/safer-people-safer-streets).
---------------------------------------------------------------------------

    Pursuant to Sec.  673.25(b)(2), each transit agency must include, 
as a source for safety hazard identification, data and information 
provided by an oversight authority and FTA.
    Safety hazard identification activities should be commensurate with 
the size of the transit agency's operations. For example, the number of 
identified hazards for a small rural bus system may be less than the 
number of hazards identified for a large multi-modal system.
    Pursuant to Sec.  673.25(c), each transit agency must establish 
procedures for assessing and prioritizing safety risks related to the 
potential consequences of hazards identified and analyzed in Sec.  
673.25(b). Each transit agency must assess safety risks in terms of 
probability (the likelihood of the hazard producing the potential 
consequences) and severity (the damage, or the potential consequences 
of a hazard, that may be caused if the hazard is not eliminated or its 
consequences are not successfully mitigated).
    Pursuant to Sec.  673.25(d), each transit agency also must 
establish criteria for the development of safety risk mitigations that 
are necessary based on the results of the agency's safety risk 
assessments. For example, a transit agency may decide that the criteria 
for developing safety risk mitigations could be the identification of a 
safety risk, benefit-cost analysis, a system level change (such as the 
addition of new technology on a vehicle), a change to operational 
procedures, or the expansion of service. To further illustrate these 
examples, a transit agency may color code different levels of safety 
risk (``red'' as high, ``yellow'' as medium, and ``green'' as minor) 
and develop different types of safety risk mitigations to correspond to 
those levels.
673.27 Safety Assurance
    Pursuant to Sec.  673.27(a), each transit agency must develop and 
implement a process for Safety Assurance. Rail fixed guideway public 
transportation systems and recipients and subrecipients of Federal 
financial assistance under 49 U.S.C. Chapter 53 that operate more than 
one hundred vehicles in peak revenue service must develop processes for 
(1) safety performance monitoring and measurement, (2) management of 
change, and (3) continuous improvement. Small public transportation 
providers only need to develop a process for safety performance 
monitoring and measurement. Each transit agency's safety assurance 
activities should be scaled to the size and complexity of its 
operations. Through these activities, each transit agency should 
accurately determine whether it is meeting its safety objectives and 
safety performance targets, as well as the extent to which it is 
effectively implementing its SMS. Each transit agency must conduct an 
annual review of the effectiveness of its safety risk mitigations.
    Pursuant to Sec.  673.27(b), each transit agency must identify the 
data and information that it will collect from its operations, 
maintenance, and public transportation services so that it may monitor 
the agency's safety performance as well as the effectiveness of its 
SMS. Each transit agency must monitor its operations and maintenance 
protocols and procedures, and any safety risk mitigations, to ensure 
that it is implementing them as planned.
    Each transit agency must investigate safety events (as defined in 
this final rule) and any reports of non-compliance with applicable 
regulations, standards, and legal authority. Finally, each transit 
agency must continually monitor information reported to it through any 
internal safety reporting programs, including the employee safety 
reporting program.
    Pursuant to Sec.  673.27(c), rail fixed guideway public 
transportation systems and recipients and subrecipients that are 
subject to this rule and operate more than one hundred vehicles in peak 
revenue service must manage changes in their systems. These transit 
agencies must develop processes for identifying and assessing changes 
that may introduce new hazards or impact safety performance. If a 
transit agency determines that a change might impact safety, then the 
transit agency would need to evaluate the change using Safety Risk 
Management activities established under Sec.  673.25. These changes 
would include changes to operations or maintenance procedures, changes 
to service, the design and construction of major capital projects (such 
as New Starts and Small Starts projects and associated certifications), 
organizational changes, and any other changes to a transit agency's 
system that may impact safety performance. Each rail transit agency 
should include a description of the safety certification process that 
it uses to ensure that safety concerns and hazards are adequately 
addressed prior to the initiation of passenger operations

[[Page 34460]]

for News Starts and other major capital projects to extend, 
rehabilitate, or modify an existing system, or to replace vehicles and 
equipment.
    Pursuant to Sec.  673.27(d), rail fixed guideway public 
transportation systems and recipients and subrecipients that are 
subject to this rule and operate more than one hundred vehicles in peak 
revenue service must regularly assess their safety performance. If a 
transit agency identifies any deficiencies during a safety performance 
assessment, then it must develop and carry out, under the direction of 
the Accountable Executive, a plan to address the identified safety 
deficiencies. FTA expect each transit agency to conduct a safety 
performance assessment at least annually, and the safety performance 
assessment can be completed in conjunction with the annual review and 
update to its overall safety plan as required by 49 U.S.C. 
5329(d)(1)(D) and 49 CFR 673.11(a)(5).
673.29 Safety Promotion
    This section requires each transit agency to establish competencies 
and training for all agency employees directly responsible for safety, 
and to establish and maintain the means for communicating safety 
performance and SMS information. Pursuant to Sec.  673.29(a), each 
transit agency must establish a comprehensive safety training program. 
Through the safety training program, each transit agency must require 
each employee, as applicable, to complete training to enable the 
individual to meet his or her role and responsibilities for safety, and 
to complete refresher training, as necessary, to stay current with the 
agency's safety practices and procedures.
    Pursuant to Sec.  673.29(b), each transit agency must ensure that 
all employees are aware of any policies, activities, and procedures 
that are related to their safety-related roles and responsibilities. 
Safety communications may include information on hazards and safety 
risks that are relevant to the employee's role and responsibilities; 
explain reasons that a transit agency introduces or changes policies, 
activities, or procedures; and explain to an employee when actions are 
taken in response to reports submitted by the employee through the 
employee safety reporting program. FTA expects that each transit agency 
would define the means and mechanisms for effective safety 
communication based on its organization, structure, and size of 
operations.

Subpart D--Safety Plan Documentation and Recordkeeping

673.31 Safety Plan Documentation
    This section requires each transit agency to keep records of its 
documents that are developed in accordance with this part. FTA expects 
a transit agency to maintain documents that set forth its Public 
Transportation Agency Safety Plan, including those related to the 
implementation of its SMS such as the results from SMS processes and 
activities. For the purpose of reviews, investigations, audits, or 
other purposes, this section requires each transit agency to make these 
documents available to FTA, SSOAs in the case of rail transit systems, 
and other Federal agencies as appropriate. A transit agency must 
maintain these documents for a minimum of three years.

V. Regulatory Analyses and Notices

Executive Order 12866 (Regulatory Planning and Review), Executive Order 
13563 (Improving Regulation and Regulatory Review), and USDOT 
Regulatory Policies and Procedures

    Executive Orders 12866 and 13563 direct agencies to propose or 
adopt a regulation only upon a reasoned determination that its benefits 
justify its costs (recognizing that some benefits and costs are 
difficult to quantify); tailor its regulations to impose the least 
burden on society; assess all costs and benefits of available 
regulatory alternatives; and, if regulation is necessary, to select 
regulatory approaches that maximizes net benefits--including potential 
economic, environmental, public health, and safety effects, 
distributive impacts, and equity. Executive Order 13563 also emphasizes 
the importance of harmonizing rules and promoting flexibility.
    FTA drafted this final rule in accordance with the principles set 
forth in Executive Orders 12866 and 13563. FTA has determined that this 
final rule is a significant regulatory action due to significant public 
interest in the area of transit safety. However, this rule is not 
estimated to be ``economically significant'' within the meaning of 
Executive Order 12866.
    As discussed in greater detail below, FTA was able to estimate 
some, but not all, of the rule's costs. FTA was able to estimate the 
costs for transit agencies to develop and implement Public 
Transportation Agency Safety Plans which are approximately $41 million 
in the first year, and $30 million in each subsequent year, with 
annualized costs of $31 million discounted at 7 percent. These costs 
result from developing and certifying safety plans, documenting the SMS 
approach, implementing SMS, and associated recordkeeping. FTA was not 
able to estimate the costs of actions that transit agencies would be 
required to take to mitigate risk as a result of implementing this 
rule, such as vehicle modifications, additional training, technology 
investments, or changes to operating procedures and practices.
    FTA has placed in the docket a final Regulatory Impact Analysis 
(RIA) that analyzes the benefits and costs of the regulatory changes in 
accordance with Executive Orders 12866 and 13563, and United States 
Department of Transportation (USDOT) policy.
    Through this final rule, FTA requires all operators of public 
transportation systems that receive Federal financial assistance under 
49 U.S.C. Chapter 53 to develop and implement Public Transportation 
Safety Plans in accordance with 49 U.S.C. 5329, using the SMS approach. 
As discussed above, FTA is deferring regulatory action at this time 
regarding recipients of FTA financial assistance under 49 U.S.C. 5310 
and/or 49 U.S.C. 5311.
    SMS is a flexible, scalable approach to safety that has been widely 
adopted across multiple modes of transportation in both the public and 
private sectors and overlaps significantly with the requirements 
included in 49 U.S.C. 5329. It employs a systematic, data-driven 
approach in which risks to safety are identified, then controlled or 
mitigated to acceptable levels. SMS brings business-like methods and 
principles to safety, similar to the ways in which an organization 
manages its finances, through safety plans, with targets and 
performance indicators, and continuous monitoring of safety performance 
throughout an organization.
    In addition to responding to the specific statutory mandate, this 
final rule responds to National Transportation Safety Board (NTSB) 
recommendations regarding an expansion of SMS to reduce the risks of 
transit crashes. From 2004 to 2016, NTSB reported on eleven transit 
accidents that, collectively, resulted in 16 fatalities, 386 injuries, 
and over $30 million in property damages. Although transit systems have 
historically been among the safest means of surface transportation, the 
transit industry is facing increased pressures at a time when ridership 
has grown, infrastructure is aging, and large numbers of the workforce 
are retiring. During that same 2004-2016 time period, transit agencies 
reported over 290,000 incidents and other events,

[[Page 34461]]

more than 2,600 fatalities, and over 301,000 injuries to the NTD.
    This RIA provides quantitative estimates of the expected compliance 
costs associated with the rule. Costs for transit agencies were 
estimated based on the staff labor hours, information technology 
systems, and travel costs associated with implementing the requirements 
of the proposed rule, with adjustments for agency size and for 
agencies' existing level of maturity with SMS approaches. FTA estimated 
three main cost areas: (1) Developing and certifying safety plans; (2) 
implementing and documenting the SMS approach; and (3) associated 
recordkeeping. Staff time was monetized using data on wage rates and 
benefits in the transit industry. Over the 20-year analysis period, 
total costs are estimated at $324 million in present value (using a 7% 
discount rate), or the equivalent of $31 million per year.
    As previously noted, FTA was unable to estimate the cost of actions 
that agencies would take to mitigate or eliminate safety problems 
identified through implementation of their safety plans. FTA is unaware 
of information sources or methods to predict with sufficient confidence 
the number or type of safety problems agencies will identify through 
implementation of their safety plans, or the number, type, and cost of 
actions that agencies will take to address such problems. For similar 
reasons, FTA also is unable to quantify the rule's benefits. FTA sought 
information from the public through the NPRM for this rulemaking that 
would assist FTA with analyzing the benefits and costs of actions by 
agencies to mitigate or eliminate safety problems such as the number, 
types, benefits, and costs of such actions, but FTA did not receive 
adequate data from the public to assist with this effort.
    FTA calculated potential safety benefits that could be realized by 
bus and rail modes if safety management practices outlined in the rule 
are followed to identify and implement investment strategies to reduce 
safety risk. FTA monetized benefits using information on transit crash 
costs, including direct costs and USDOT-standard statistical values for 
fatality and injury prevention. Although many other sectors report 
reductions in safety incidents after adopting SMS, it is not possible 
to transfer that experience to the transit industry due to the 
differences in organizational structures and practices.
    FTA was unable to quantify the rule's benefits. To estimate safety 
benefits, one would need information regarding the causes of safety 
events and the factors that may cause future events. This information 
is generally unavailable in the public transportation sector, given the 
infrequency and diversity of the type of safety events that occur. In 
addition, one would need information about the safety problems that 
agencies are likely to find through implementation of their safety 
plans and the actions agencies are likely to take to address those 
problems. Instead of quantifying benefits, FTA estimated the potential 
safety benefits if additional unquantified mitigation investments 
occur. The potential safety benefits are an estimate of the cost of bus 
and rail safety events over a future 20-year period. FTA extrapolated 
the estimate based on the cost of bus and rail incidents that occurred 
from 2010 to 2016, assuming no growth in the number of incidents in the 
future.
    The benefits of SMS primarily will result from mitigating actions. 
As previously stated, FTA could not account for the benefits and costs 
of such actions in this analysis. FTA has not estimated the benefits of 
implementing SMS without mitigating actions, but expects such benefits 
are unlikely to be large. Estimated costs for the Public Transportation 
Agency Safety Plans include certain activities that likely will yield 
safety improvements, such as improved communication, identification of 
hazards, and greater employee awareness. It is plausible that these 
changes alone could produce reductions in safety events that surpass 
estimated costs.
    Under the performance management framework established by MAP-21, 
States, MPOs, and transit providers must establish targets in key 
national performance areas to document expectations for future 
performance. Pursuant to 49 U.S.C. 5303(h)(2)(B)(ii) and 
5304(d)(2)(B)(ii), States and MPOs must coordinate the selection of 
their performance targets, to the maximum extent practicable, with 
performance targets set by transit providers under 49 U.S.C. 5326 
(transit asset management) and 49 U.S.C. 5329 (safety), to ensure 
consistency.
    In the joint FTA and FHWA Planning Rule, both agencies indicate 
that their performance-related rules would implement the basic elements 
of a performance management framework, including the establishment of 
measures and associated target setting. Because the performance-related 
rules implement these elements and the difficulty in estimating costs 
of target setting associated with unknown measures, the joint FTA and 
FHWA Planning Rule did not assess these costs. Rather, FTA and FHWA 
proposed that the costs associated with target setting at every level 
would be captured in each agency's respective ``performance 
management'' rules. For example, in its second performance management 
rule NPRM, FHWA assumes that the incremental costs to States and MPOs 
for establishing performance targets reflect the incremental wage costs 
for an operations manager and a statistician to analyze performance-
related data.
    The RIA accompanying the joint FTA and FHWA Planning Rule captures 
the costs of the effort by States, MPOs, and transit providers to 
coordinate in the setting of State and MPO transit performance targets 
for state of good repair and safety. FTA believes that the cost to MPOs 
and States to set transit performance targets is included within the 
costs of coordination. FTA requested comments on this issue through 
this rulemaking, and it received none.
    A summary of the potential benefits and costs of this rule is 
provided in Table 2 below.

Table 2--Summary of the Costs and the Potential Benefits if Additional Unquantified Mitigation Investments Occur
----------------------------------------------------------------------------------------------------------------
                                         Current dollar value     7% Discounted value      3% Discounted value
----------------------------------------------------------------------------------------------------------------
Bus Events (20-Year Estimate)........          $78,698,984,508          $38,413,831,624          $56,680,780,091
Rail Events (20-Year Estimate).......           45,019,196,393           21,974,360,164           32,423,838,587
Total Potential Benefits (20-Year              123,718,180,901           60,388,191,787           89,104,618,678
 Estimate)...........................
                                      --------------------------------------------------------------------------
Qualitative Benefits.................  <bullet> Reduced safety incidents with mitigation actions.
                                       <bullet> Reduced delays in operations.
                                      --------------------------------------------------------------------------

[[Page 34462]]

 
Estimated Costs (20-Year Estimate)...              602,485,710              323,732,747              450,749,898
                                      --------------------------------------------------------------------------
Unquantified Costs...................  <bullet> Investments associated with mitigating safety risks (such as
                                       additional training, vehicle modification, operational changes,
                                       maintenance, and information dissemination).
                                      --------------------------------------------------------------------------
Estimated Cost (Annualized)..........  .......................               30,558,081               30,297,473
----------------------------------------------------------------------------------------------------------------

Executive Order 13771 (Reducing Regulation and Controlling Regulatory 
Costs)

    Executive Order 13771 applies to any action considered 
``significant'' under Executive Order 12866 that imposes total costs 
greater than zero. Actions subject to Executive Order 13771 must be 
offset by the elimination of existing costs associated with at least 
two prior regulations. This final rule is an action under Executive 
Order 13771 because it is considered a ``significant regulatory 
action'' under Executive Order 12866.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 
5 U.S.C. 601-612), FTA has evaluated the effects of this rule on small 
entities and has determined that this rule will not have a significant 
economic impact on a substantial number of small entities.
    The rule will affect approximately 625 small entities, most of 
which are small government entities and small non-profit organizations 
that operate public transportation systems in small-urbanized areas. 
Compliance costs will vary according to agency size and complexity, the 
extent of current SMS practices, and the extent of current asset 
management practices. Costs are illustrated by an example calculation 
for a small operator (less than one hundred non-rail vehicles in 
maximum revenue service) of a public transportation system that 
receives Formula Grants for Urbanized Areas under 49 U.S.C. 5307, for 
which compliance costs are approximately $20,600 per agency (this 
estimate excludes the cost of mitigating actions). For the sake of 
comparison, while transit agency operations budgets vary significantly, 
the average for small Section 5307 agencies is around $6.3 million per 
year. Thus, the estimated costs of the rule are around 0.3% of agency 
budgets for small Section 5307 agencies. FTA is minimizing the costs 
for smaller operators of public transportation systems by requiring the 
States in which they are located to draft and certify Public 
Transportation Agency Safety Plans on their behalf, unless the operator 
chooses to develop and certify its own plan. Additionally, to lower the 
costs for smaller operators of public transportation systems, FTA is 
adopting the SMS approach to safety, which is scalable for the specific 
needs of a particular transit agency. To further reduce the burdens of 
this final rule, FTA tailored it by eliminating a series of Safety 
Assurance requirements specifically for small public transportation 
providers. As discussed in other sections of this document, small 
public transportation providers only need to develop Safety Assurance 
procedures for performance monitoring and measurement; they would not 
need to develop Safety Assurances procedures for management of change 
and continuous improvement. FTA also eliminated certain Safety 
Assurance and recordkeeping requirements for all transit operators, 
including small public transportation providers, to minimize the rule's 
costs. Concurrent with today's final rule, FTA is issuing a safety plan 
template with instructions and considerations to assist transit 
agencies with the development of their plans and to help reduce the 
overall costs associated with that effort.
    Overall, while the rule may affect a substantial number of small 
entities, these impacts would not be significant due to the low 
magnitude of the costs. Moreover, FTA has designed the rule to allow 
flexibility for small entities. FTA is providing additional analysis of 
the Regulatory Flexibility Act's application to this rule in Regulatory 
Impact Analysis posted to the docket.

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, March 22, 1995, 
109 Stat. 48; codified at 2 U.S.C. 1501 et seq.).
    Pursuant to 2 U.S.C. 1501(8), one of the purposes of the Unfunded 
Mandates Reform Act is to consider ``the effect of . . . Federal 
statutes and regulations that impose Federal intergovernmental 
mandates.'' The term ``Federal intergovernmental mandate'' is defined 
at 2 U.S.C. 658(5)(A)(i) to mean ``any provision in legislation, 
statute, or regulation that would impose an enforceable duty upon 
State, local, or tribal governments, except . . . a condition of 
Federal assistance.''
    Given the fact that FTA's authorizing statute at 49 U.S.C. 5329(d) 
makes the development and implementation of Public Transportation 
Agency Safety Plans a condition of FTA Federal financial assistance, 
and given that FTA is proposing to require transit agencies to annually 
certify that they have safety plans consistent with this rule as a 
condition of that Federal financial assistance, this rule will not 
impose unfunded mandates.

Executive Order 13132 (Federalism)

    This final rule has been analyzed in accordance with the principles 
and criteria established by Executive Order 13132, and FTA has 
determined that this 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.

Executive Order 12372 (Intergovernmental Review)

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

Paperwork Reduction Act (PRA)

    In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
et seq.) (PRA), and the White House Office of Management and Budget's 
(OMB) implementing regulation at 5 CFR 1320.8(d), FTA is seeking 
approval from OMB for the Information Collection Request abstracted 
below. FTA acknowledges that this rule entails the collection of 
information to implement the Public Transportation Agency Safety Plan 
requirements of 49 U.S.C. 5329(d). Specifically, an operator of a 
public

[[Page 34463]]

transportation system must do the following: (1) Develop and certify a 
Public Transportation Agency Safety Plan; (2) implement and document 
the SMS approach; and (3) associated recordkeeping. As discussed above, 
FTA is deferring regulatory action at this time regarding recipients of 
FTA financial assistance under 49 U.S.C. 5310 and/or 49 U.S.C. 5311.
    FTA sought public comments to evaluate whether the proposed 
collection of information is necessary for the proper performance of 
FTA's functions, including whether the information will have practical 
utility; whether the estimation of the burden of the proposed 
information collection is accurate, including the validity of the 
methodologies and assumptions used; ways in which the quality, utility, 
and clarity of the information can be enhanced; and whether the burden 
can be minimized, including through the use of automated collection 
techniques or other forms of information technology. FTA received no 
public comments on these issues.
    Readers should note that the information collection would be 
specific to each operator of a public transportation system in an 
effort to facilitate and record the operator's safety responsibilities 
and activities. The paperwork burden for each operator of a public 
transportation system will be proportionate to the size and complexity 
of its operations. For example, an operator of a rail fixed guideway 
system and a bus system may need to generate more documentation than an 
operator of a bus system only.
    Also, readers should note that FTA has required rail fixed guideway 
public transportation systems to develop System Safety Program Plans 
and System Security Plans in accordance with the former regulatory 
requirements at 49 CFR part 659. FTA has collected information from 
States and State Safety Oversight Agencies regarding these plans, and 
FTA anticipates that operators of rail fixed guideway systems will 
utilize some of this documentation for purposes of developing Public 
Transportation Agency Safety Plans. Please see FTA's currently approved 
collection, 2132-0558, available at http://www.reginfo.gov/public/do/PRAMain.
    Type of Collection: Operators of public transportation systems.
    Type of Review: OMB Clearance. New Information Collection Request.
    Summary of the Collection: The information collection includes (1) 
The development and certification of a Public Transportation Agency 
Safety Plan; (2) the implementation and documentation of the SMS 
approach; and (3) associated recordkeeping.
    Need for and Expected Use of the Information to be Collected: 
Collection of information for this program is necessary to ensure that 
operators of public transportation systems are performing their safety 
responsibilities and activities required by law at 49 U.S.C. 5329(d). 
Without the creation of Public Transportation Agency Safety Plans, FTA 
would be unable to determine each State's compliance with 49 U.S.C. 
5329(d).
    Respondents: Respondents include operators of public transportation 
as defined under 49 U.S.C. 5302(14). FTA is deferring regulatory action 
at this time on recipients of FTA financial assistance under 49 U.S.C. 
5310 and/or 49 U.S.C. 5311. The total number of respondents is 336. 
This figure includes 242 respondents that are States, direct 
recipients, rail fixed guideway systems that receive Urbanized Area 
Formula Program funds under 49 U.S.C. 5307, or large bus systems that 
receive Urbanized Area Formula Program funds under 49 U.S.C. 5307. This 
figure also includes 94 respondents that receive Urbanized Area Formula 
Program funds under 49 U.S.C. 5307, operate one hundred or fewer 
vehicles in revenue service, and do not operate rail fixed guideway 
service that may draft and certify their own safety plans.
    Frequency: Annual.

                               Estimated Total Annual Burden Hours on Respondents
----------------------------------------------------------------------------------------------------------------
                                                                       Total       Burden hours    Total annual
                                                                     responses     per response       burden
----------------------------------------------------------------------------------------------------------------
Rail:
    Development/Certification...................................              60              48           2,862
    Implement/Document..........................................              60           1,114          66,869
    Recordkeeping...............................................              60              43           2,562
Large 5307:
    Development/Certification...................................             127              48           6,123
    Implement/Document..........................................             127             760          96,581
    Recordkeeping...............................................             127              42           5,298
Small 5307:
    Development/Certification...................................              94              19           1,773
    Implement/Document..........................................             625             270         168,622
    Recordkeeping...............................................             625              38          23,647
States/Direct Recipients:
    Development/Certification...................................              55              40           2,206
    Implement/Document..........................................              55               0               0
    Recordkeeping...............................................              55               0               0
                                                                 -----------------------------------------------
        Grand Total.............................................             336           2,422         376,543
----------------------------------------------------------------------------------------------------------------

    FTA calculated costs using the same methodology that it used for 
the Regulatory Impact Analysis. FTA summarized the PRA costs in the 
table below. The total PRA cost of the rule is approximately $33 
million per year averaged over the first three years, which is an 
average of $98,791 per respondent per year, or $38,256 per response per 
year.

----------------------------------------------------------------------------------------------------------------
                    PRA costs                         Year 1          Year 2          Year 3           Total
----------------------------------------------------------------------------------------------------------------
Rail:
    Development/Certification...................        $733,863         $86,858         $86,858        $907,579

[[Page 34464]]

 
    Implement/Document..........................       9,366,439       6,651,817       6,651,817      22,670,072
    Recordkeeping...............................       1,179,917       1,179,917       1,179,917       3,539,750
Large 5307:
    Development/Certification...................       1,624,085         137,866         137,866       1,899,818
    Implement/Document..........................       9,235,788       6,593,697       6,593,697      22,423,182
    Recordkeeping...............................       1,830,066       1,830,066       1,830,066       5,490,199
Small 5307:
    Development/Certification...................         436,058          48,929          48,929         533,917
    Implement/Document..........................      12,166,099       9,118,251       9,118,251      30,402,601
    Recordkeeping...............................       3,565,974       3,565,974       3,565,974      10,697,922
States/Direct Recipients:
    Development/Certification...................         425,782          20,045          20,045         465,871
    Implement/Document..........................               0               0               0               0
    Recordkeeping...............................         183,333         183,333         183,333         550,000
----------------------------------------------------------------------------------------------------------------

National Environmental Policy Act

    The National Environmental Policy Act of 1969 (42 U.S.C. 4321 et 
seq.), requires Federal agencies to analyze the potential environmental 
effects of their proposed actions either through a Categorical 
Exclusion, an Environmental Assessment, or an Environmental Impact 
Statement. This rule is categorically excluded under FTA's NEPA 
implementing regulations at 23 CFR 771.118(c)(4), which covers planning 
and administrative activities that do not involve or lead directly to 
construction, such as the promulgation of rules, regulations, 
directives, and program guidance. FTA has determined that no unusual 
circumstances exist and that this Categorical Exclusion is applicable.

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

    Executive Order 12898 directs every Federal agency to make 
environmental justice part of its mission by identifying and addressing 
the effects of all programs, policies, and activities on minority 
populations and low-income populations. The DOT's environmental justice 
initiatives accomplish this goal by involving the potentially affected 
public in developing transportation projects that fit harmoniously 
within their communities without sacrificing safety or mobility. FTA 
has developed a program circular addressing environmental justice in 
transit projects, Circular 4703.1, Environmental Justice Policy 
Guidance for Federal Transit Administration Recipients. The Circular is 
designed to provide a framework to assist recipients as they integrate 
principles of environmental justice into their transit decision-making 
process. The Circular contains recommendations for State DOTs, MPOs, 
and transit providers on (1) how to fully engage environmental justice 
populations in the transportation decision-making process; (2) how to 
determine whether environmental justice populations would be subjected 
to disproportionately high and adverse human health or environmental 
effects of a public transportation project, policy, or activity; and 
(3) how to avoid, minimize, or mitigate these effects. This rule will 
not cause adverse environmental impacts, and as a result, minority 
populations and low-income populations will not be disproportionately 
impacted.

Executive Order 12630 (Taking of Private Property)

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

Executive Order 12988 (Civil Justice Reform)

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

Executive Order 13045 (Protection of Children)

    FTA has analyzed this rule under Executive Order 13045, 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 rule under Executive Order 13175 (Nov. 6, 
2000), and has determined that it will not have substantial direct 
effects on one or more Indian tribes; will not impose substantial 
direct compliance costs on Indian tribal governments; and will not 
preempt tribal laws. Therefore, a tribal summary impact statement is 
not required.
    Notwithstanding the above, FTA notes that it conducted extensive 
outreach with tribes throughout this rulemaking. Specifically, on 
February 12, 2016, FTA conducted public outreach for tribes and hosted 
a Tribal Technical Assistance Workshop wherein FTA presented its 
proposed rule and responded to numerous technical questions from 
tribes. FTA subsequently delivered the same presentation during a 
webinar series open to all members of the public on February 24, March 
1, March 2, and March 3. On March 7, FTA delivered the same 
presentation at an outreach session hosted by the National Rural 
Transit Assistance Program, which also was open to all members of the 
public. During each of these public outreach sessions and the public 
webinar series, FTA received and responded to numerous technical 
questions regarding the NPRM. FTA recorded the presentations, including 
the question and answer sessions, and made available the following 
documents on the public docket for this rulemaking (Docket FTA-2015-
0021): (1) FTA's PowerPoint Presentation from the public outreach 
sessions and public webinar series (https://www.regulations.gov/document?D=FTA-2015-0021-0012); (2) a written transcript of FTA's 
public webinar of March 1, 2016 (https://www.regulations.gov/document?D=FTA-2015-0021-0010); (3) a consolidated list of every 
Question and FTA Answer from the public outreach sessions and public 
webinar series (https://www.regulations.gov/document?D=FTA-2015-0021-0041); and (4) the results of polling questions from FTA's public 
outreach sessions (https://www.regulations.gov/document?D=FTA-2015-0021-0011). FTA also uploaded onto YouTube an audiovisual recording of 
its webinar

[[Page 34465]]

from March 1, 2016. The video is available at the following link: 
https://www.youtube.com/watch?v=FBj5HRatwGA&feature=youtu.be.
    FTA also notes that, in advance of publishing an NPRM, FTA sought 
comment from the transit industry, including tribes, on a wide range of 
topics pertaining to safety and asset management through an ANPRM. In 
the NPRM, FTA asked specific questions about how today's rule should 
apply to tribal recipients and subrecipients of Section 5311 funds.
    In light of the comments that FTA received from tribes in response 
to the NPRM, and in an effort to further reduce the burdens of this 
final rule, FTA is deferring regulatory action regarding the 
applicability of this rule to operators of public transportation 
systems that only receive Section 5310 and/or Section 5311 funds, 
including tribal transit operators. FTA is deferring action pending 
further evaluation of information and safety data to determine the 
appropriate level of regulatory burden necessary to address the safety 
risk presented by these operators.

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 rule 
is not a significant energy action under that Executive Order because 
it is not likely to have a significant adverse effect on the supply, 
distribution, or use of energy. Therefore, a Statement of Energy 
Effects is not required.

Privacy Act

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

Statutory/Legal Authority for This Rulemaking

    FTA is issuing this final rule under the authority of section 20021 
of MAP-21, which requires public transportation agencies to develop and 
implement comprehensive safety plans. This authority was reauthorized 
under the FAST Act. The authority is codified at 49 U.S.C. 5329(d).

Regulation Identification Number

    A RIN is assigned to each regulatory action listed in the Unified 
Agenda of Federal Regulations. The Regulatory Information Service 
Center publishes the Unified Agenda in April and October of each year. 
The RIN set forth in the heading of this document can be used to cross-
reference this action with the Unified Agenda.

List of Subjects in 49 CFR Part 673

    Mass transportation, Safety.


K. Jane Williams,
Acting Administrator.

0
For the reasons set forth in the preamble, and under the authority of 
49 U.S.C. 5329(d) and 5334, 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 673 to read as follows:

PART 673--PUBLIC TRANSPORTATION AGENCY SAFETY PLANS

Subpart A--General
673.1 Applicability.
673.3 Policy.
673.5 Definitions.
Subpart B--Safety Plans
673.11 General requirements.
673.13 Certification of compliance.
673.15 Coordination with metropolitan, statewide, and non-
metropolitan planning processes.
Subpart C--Safety Management Systems
673.21 General requirements.
673.23 Safety management policy.
673.25 Safety risk management.
673.27 Safety assurance.
673.29 Safety promotion.
Subpart D--Safety Plan Documentation and Recordkeeping
673.31 Safety plan documentation.

    Authority:  49 U.S.C. 5329(d) and 5334; 49 CFR 1.91.

Subpart A--General


Sec.  673.1  Applicability.

    (a) This part applies to any State, local governmental authority, 
and any other operator of a public transportation system that receives 
Federal financial assistance under 49 U.S.C. Chapter 53.
    (b) This part does not apply to an operator of a public 
transportation system that only receives Federal financial assistance 
under 49 U.S.C. 5310, 49 U.S.C. 5311, or both 49 U.S.C. 5310 and 49 
U.S.C. 5311.


Sec.  673.3  Policy.

    The Federal Transit Administration (FTA) has adopted the principles 
and methods of Safety Management Systems (SMS) as the basis for 
enhancing the safety of public transportation in the United States. 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. This 
part sets standards for the Public Transportation Agency Safety Plan, 
which will be responsive to FTA's Public Transportation Safety Program, 
and reflect the specific safety objectives, standards, and priorities 
of each transit agency. Each Public Transportation Agency Safety Plan 
will incorporate SMS principles and methods tailored to the size, 
complexity, and scope of the public transportation system and the 
environment in which it operates.


Sec.  673.5  Definitions.

    As used in this part:
    Accident means an Event that involves any of the following: A loss 
of life; a report of a serious injury to a person; a collision of 
public transportation vehicles; a runaway train; an evacuation for life 
safety reasons; or any derailment of a rail transit vehicle, at any 
location, at any time, whatever the cause.
    Accountable Executive means a single, identifiable person who has 
ultimate responsibility 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.
    Chief Safety Officer means an adequately trained individual who has 
responsibility for safety and reports directly to a transit agency's 
chief executive officer, general manager, president, or equivalent 
officer. A Chief Safety Officer may not serve in other operational or 
maintenance capacities, unless the Chief Safety Officer is employed by 
a transit agency that is a small public transportation provider as 
defined in this part, or a public transportation provider that does not 
operate a rail fixed guideway public transportation system.
    Equivalent Authority means an entity that carries out duties 
similar to that of a Board of Directors, for a recipient or 
subrecipient of FTA funds under 49 U.S.C. Chapter 53, including 
sufficient authority to review and approve a

[[Page 34466]]

recipient or subrecipient's Public Transportation Agency Safety Plan.
    Event means any Accident, Incident, or Occurrence.
    FTA means the Federal Transit Administration, an operating 
administration within the United States Department of Transportation.
    Hazard means any real or potential condition that can cause injury, 
illness, or death; damage to or loss of the facilities, equipment, 
rolling stock, or infrastructure of a public transportation system; or 
damage to the environment.
    Incident means an event that involves any of the following: A 
personal injury that is not a serious injury; one or more injuries 
requiring medical transport; or damage to facilities, equipment, 
rolling stock, or infrastructure that disrupts the operations of a 
transit agency.
    Investigation means the process of determining the causal and 
contributing factors of an accident, incident, or hazard, for the 
purpose of preventing recurrence and mitigating risk.
    National Public Transportation Safety Plan means the plan to 
improve the safety of all public transportation systems that receive 
Federal financial assistance under 49 U.S.C. Chapter 53.
    Occurrence means an Event without any personal injury in which any 
damage to facilities, equipment, rolling stock, or infrastructure does 
not disrupt the operations of a transit agency.
    Operator of a public transportation system means a provider of 
public transportation as defined under 49 U.S.C. 5302(14).
    Performance measure means an expression based on a quantifiable 
indicator of performance or condition that is used to establish targets 
and to assess progress toward meeting the established targets.
    Performance target means a quantifiable level of performance or 
condition, expressed as a value for the measure, to be achieved within 
a time period required by the Federal Transit Administration (FTA).
    Public Transportation Agency Safety Plan means the documented 
comprehensive agency safety plan for a transit agency that is required 
by 49 U.S.C. 5329 and this part.
    Rail fixed guideway public transportation system means any fixed 
guideway system that uses rail, is operated for public transportation, 
is within the jurisdiction of a State, and is not subject to the 
jurisdiction of the Federal Railroad Administration, or any such system 
in engineering or construction. Rail fixed guideway public 
transportation systems include but are not limited to rapid rail, heavy 
rail, light rail, monorail, trolley, inclined plane, funicular, and 
automated guideway.
    Rail transit agency means any entity that provides services on a 
rail fixed guideway public transportation system.
    Risk means the composite of predicted severity and likelihood of 
the potential effect of a hazard.
    Risk mitigation means a method or methods to eliminate or reduce 
the effects of hazards.
    Safety Assurance means processes within a transit agency's Safety 
Management System that functions to ensure the implementation and 
effectiveness of safety risk mitigation, and to ensure that the transit 
agency meets or exceeds its safety objectives through the collection, 
analysis, and assessment of information.
    Safety Management Policy means a transit agency's documented 
commitment to safety, which defines the transit agency's safety 
objectives and the accountabilities and responsibilities of its 
employees in regard to safety.
    Safety Management System (SMS) means the formal, top-down, 
organization-wide approach to managing safety risk and assuring the 
effectiveness of a transit agency's safety risk mitigation. SMS 
includes systematic procedures, practices, and policies for managing 
risks and hazards.
    Safety Management System (SMS) Executive means a Chief Safety 
Officer or an equivalent.
    Safety performance target means a Performance Target related to 
safety management activities.
    Safety Promotion means a combination of training and communication 
of safety information to support SMS as applied to the transit agency's 
public transportation system.
    Safety risk assessment means the formal activity whereby a transit 
agency determines Safety Risk Management priorities by establishing the 
significance or value of its safety risks.
    Safety Risk Management means a process within a transit agency's 
Public Transportation Agency Safety Plan for identifying hazards and 
analyzing, assessing, and mitigating safety risk.
    Serious injury means any injury which:
    (1) Requires hospitalization for more than 48 hours, commencing 
within 7 days from the date of the injury was received;
    (2) Results in a fracture of any bone (except simple fractures of 
fingers, toes, or noses);
    (3) Causes severe hemorrhages, nerve, muscle, or tendon damage;
    (4) Involves any internal organ; or
    (5) Involves second- or third-degree burns, or any burns affecting 
more than 5 percent of the body surface.
    Small public transportation provider means a recipient or 
subrecipient of Federal financial assistance under 49 U.S.C. 5307 that 
has one hundred (100) or fewer vehicles in peak revenue service and 
does not operate a rail fixed guideway public transportation system.
    State means a State of the United States, the District of Columbia, 
Puerto Rico, the Northern Mariana Islands, Guam, American Samoa, and 
the Virgin Islands.
    State of good repair means the condition in which a capital asset 
is able to operate at a full level of performance.
    State Safety Oversight Agency means an agency established by a 
State that meets the requirements and performs the functions specified 
by 49 U.S.C. 5329(e) and the regulations set forth in 49 CFR part 674.
    Transit agency means an operator of a public transportation system.
    Transit Asset Management Plan means the strategic and systematic 
practice of procuring, operating, inspecting, maintaining, 
rehabilitating, and replacing transit capital assets to manage their 
performance, risks, and costs over their life cycles, for the purpose 
of providing safe, cost-effective, and reliable public transportation, 
as required by 49 U.S.C. 5326 and 49 CFR part 625.

Subpart B--Safety Plans


Sec.  673.11   General requirements.

    (a) A transit agency must, within one calendar year after July 19, 
2019, establish a Public Transportation Agency Safety Plan that meets 
the requirements of this part and, at a minimum, consists of the 
following elements:
    (1) The Public Transportation Agency Safety Plan, and subsequent 
updates, must be signed by the Accountable Executive and approved by 
the agency's Board of Directors, or an Equivalent Authority.
    (2) The Public Transportation Agency Safety Plan must document the 
processes and activities related to Safety Management System (SMS) 
implementation, as required under subpart C of this part.
    (3) The Public Transportation Agency Safety Plan must include 
performance targets based on the safety performance measures 
established under the National Public Transportation Safety Plan.
    (4) The Public Transportation Agency Safety Plan must address all 
applicable requirements and standards as set forth in FTA's Public 
Transportation Safety Program and the National Public Transportation 
Safety Plan. Compliance

[[Page 34467]]

with the minimum safety performance standards authorized under 49 
U.S.C. 5329(b)(2)(C) is not required until standards have been 
established through the public notice and comment process.
    (5) Each transit agency must establish a process and timeline for 
conducting an annual review and update of the Public Transportation 
Agency Safety Plan.
    (6) A rail transit agency must include or incorporate by reference 
in its Public Transportation Agency Safety Plan an emergency 
preparedness and response plan or procedures that addresses, at a 
minimum, the assignment of employee responsibilities during an 
emergency; and coordination with Federal, State, regional, and local 
officials with roles and responsibilities for emergency preparedness 
and response in the transit agency's service area.
    (b) A transit agency may develop one Public Transportation Agency 
Safety Plan for all modes of service, or may develop a Public 
Transportation Agency Safety Plan for each mode of service not subject 
to safety regulation by another Federal entity.
    (c) A transit agency must maintain its Public Transportation Agency 
Safety Plan in accordance with the recordkeeping requirements in 
subpart D of this part.
    (d) A State must draft and certify a Public Transportation Agency 
Safety Plan on behalf of any small public transportation provider that 
is located in that State. A State is not required to draft a Public 
Transportation Agency Safety Plan for a small public transportation 
provider if that agency notifies the State that it will draft its own 
plan. In each instance, the transit agency must carry out the plan. If 
a State drafts and certifies a Public Transportation Agency Safety Plan 
on behalf of a transit agency, and the transit agency later opts to 
draft and certify its own Public Transportation Agency Safety Plan, 
then the transit agency must notify the State. The transit agency has 
one year from the date of the notification to draft and certify a 
Public Transportation Agency Safety Plan that is compliant with this 
part. The Public Transportation Agency Safety Plan drafted by the State 
will remain in effect until the transit agency drafts its own Public 
Transportation Agency Safety Plan.
    (e) Any rail fixed guideway public transportation system that had a 
System Safety Program Plan compliant with 49 CFR part 659 as of October 
1, 2012, may keep that plan in effect until one year after July 19, 
2019.
    (f) Agencies that operate passenger ferries regulated by the United 
States Coast Guard (USCG) or rail fixed guideway public transportation 
service regulated by the Federal Railroad Administration (FRA) are not 
required to develop agency safety plans for those modes of service.


Sec.  673.13  Certification of compliance.

    (a) Each transit agency, or State as authorized in Sec.  673.11(d), 
must certify that it has established a Public Transportation Agency 
Safety Plan meeting the requirements of this part one year after July 
19, 2019. A State Safety Oversight Agency must review and approve a 
Public Transportation Agency Safety Plan developed by rail fixed 
guideway system, as authorized in 49 U.S.C. 5329(e) and its 
implementing regulations at 49 CFR part 674.
    (b) On an annual basis, a transit agency, direct recipient, or 
State must certify its compliance with this part.


Sec.  673.15  Coordination with metropolitan, statewide, and non-
metropolitan planning processes.

    (a) A State or transit agency must make its safety performance 
targets available to States and Metropolitan Planning Organizations to 
aid in the planning process.
    (b) To the maximum extent practicable, a State or transit agency 
must coordinate with States and Metropolitan Planning Organizations in 
the selection of State and MPO safety performance targets.

Subpart C--Safety Management Systems


Sec.  673.21  General requirements.

    Each transit agency must establish and implement a Safety 
Management System under this part. A transit agency Safety Management 
System must be appropriately scaled to the size, scope and complexity 
of the transit agency and include the following elements:
    (a) Safety Management Policy as described in Sec.  673.23;
    (b) Safety Risk Management as described in Sec.  673.25;
    (c) Safety Assurance as described in Sec.  673.27; and
    (d) Safety Promotion as described in Sec.  673.29.


Sec.  673.23  Safety management policy.

    (a) A transit agency must establish its organizational 
accountabilities and responsibilities and have a written statement of 
safety management policy that includes the agency's safety objectives.
    (b) A transit agency must establish and implement a process that 
allows employees to report safety conditions to senior management, 
protections for employees who report safety conditions to senior 
management, and a description of employee behaviors that may result in 
disciplinary action.
    (c) The safety management policy must be communicated throughout 
the agency's organization.
    (d) The transit agency must establish the necessary authorities, 
accountabilities, and responsibilities for the management of safety 
amongst the following individuals within its organization, as they 
relate to the development and management of the transit agency's Safety 
Management System (SMS):
    (1) Accountable Executive. The transit agency must identify an 
Accountable Executive. The Accountable Executive is accountable for 
ensuring that the agency's SMS is effectively implemented, throughout 
the agency's public transportation system. The Accountable Executive is 
accountable for ensuring action is taken, as necessary, to address 
substandard performance in the agency's SMS. The Accountable Executive 
may delegate specific responsibilities, but the ultimate accountability 
for the transit agency's safety performance cannot be delegated and 
always rests with the Accountable Executive.
    (2) Chief Safety Officer or Safety Management System (SMS) 
Executive. The Accountable Executive must designate a Chief Safety 
Officer or SMS Executive who has the authority and responsibility for 
day-to-day implementation and operation of an agency's SMS. The Chief 
Safety Officer or SMS Executive must hold a direct line of reporting to 
the Accountable Executive. A transit agency may allow the Accountable 
Executive to also serve as the Chief Safety Officer or SMS Executive.
    (3) Agency leadership and executive management. A transit agency 
must identify those members of its leadership or executive management, 
other than an Accountable Executive, Chief Safety Officer, or SMS 
Executive, who have authorities or responsibilities for day-to-day 
implementation and operation of an agency's SMS.
    (4) Key staff. A transit agency may designate key staff, groups of 
staff, or committees to support the Accountable Executive, Chief Safety 
Officer, or SMS Executive in developing, implementing, and operating 
the agency's SMS.


Sec.  673.25  Safety risk management.

    (a) Safety Risk Management process. A transit agency must develop 
and implement a Safety Risk Management process for all elements of its 
public transportation system. The Safety Risk

[[Page 34468]]

Management process must be comprised of the following activities: 
Safety hazard identification, safety risk assessment, and safety risk 
mitigation.
    (b) Safety hazard identification. (1) A transit agency must 
establish methods or processes to identify hazards and consequences of 
the hazards.
    (2) A transit agency must consider, as a source for hazard 
identification, data and information provided by an oversight authority 
and the FTA.
    (c) Safety risk assessment. (1) A transit agency must establish 
methods or processes to assess the safety risks associated with 
identified safety hazards.
    (2) A safety risk assessment includes an assessment of the 
likelihood and severity of the consequences of the hazards, including 
existing mitigations, and prioritization of the hazards based on the 
safety risk.
    (d) Safety risk mitigation. A transit agency must establish methods 
or processes to identify mitigations or strategies necessary as a 
result of the agency's safety risk assessment to reduce the likelihood 
and severity of the consequences.


Sec.  673.27  Safety assurance.

    (a) Safety assurance process. A transit agency must develop and 
implement a safety assurance process, consistent with this subpart. A 
rail fixed guideway public transportation system, and a recipient or 
subrecipient of Federal financial assistance under 49 U.S.C. Chapter 53 
that operates more than one hundred vehicles in peak revenue service, 
must include in its safety assurance process each of the requirements 
in paragraphs (b), (c), and (d) of this section. A small public 
transportation provider only must include in its safety assurance 
process the requirements in paragraph (b) of this section.
    (b) Safety performance monitoring and measurement. A transit agency 
must establish activities to:
    (1) Monitor its system for compliance with, and sufficiency of, the 
agency's procedures for operations and maintenance;
    (2) Monitor its operations to identify any safety risk mitigations 
that may be ineffective, inappropriate, or were not implemented as 
intended;
    (3) Conduct investigations of safety events to identify causal 
factors; and
    (4) Monitor information reported through any internal safety 
reporting programs.
    (c) Management of change. (1) A transit agency must establish a 
process for identifying and assessing changes that may introduce new 
hazards or impact the transit agency's safety performance.
    (2) If a transit agency determines that a change may impact its 
safety performance, then the transit agency must evaluate the proposed 
change through its Safety Risk Management process.
    (d) Continuous improvement. (1) A transit agency must establish a 
process to assess its safety performance.
    (2) If a transit agency identifies any deficiencies as part of its 
safety performance assessment, then the transit agency must develop and 
carry out, under the direction of the Accountable Executive, a plan to 
address the identified safety deficiencies.


Sec.  673.29  Safety promotion.

    (a) Competencies and training. A transit agency must establish and 
implement a comprehensive safety training program for all agency 
employees and contractors directly responsible for safety in the 
agency's public transportation system. The training program must 
include refresher training, as necessary.
    (b) Safety communication. A transit agency must communicate safety 
and safety performance information throughout the agency's organization 
that, at a minimum, conveys information on hazards and safety risks 
relevant to employees' roles and responsibilities and informs employees 
of safety actions taken in response to reports submitted through an 
employee safety reporting program.

Subpart D--Safety Plan Documentation and Recordkeeping


Sec.  673.31  Safety plan documentation.

    At all times, a transit agency must maintain documents that set 
forth its Public Transportation Agency Safety Plan, including those 
related to the implementation of its Safety Management System (SMS), 
and results from SMS processes and activities. A transit agency must 
maintain documents that are included in whole, or by reference, that 
describe the programs, policies, and procedures that the agency uses to 
carry out its Public Transportation Agency Safety Plan. These documents 
must be made available upon request by the Federal Transit 
Administration or other Federal entity, or a State Safety Oversight 
Agency having jurisdiction. A transit agency must maintain these 
documents for a minimum of three years after they are created.

[FR Doc. 2018-15167 Filed 7-18-18; 8:45 am]
 BILLING CODE P


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