34418 Federal Register / Vol. 83, No. 139 / Thursday, July 19, 2018 / Rules and Regulations 

1See 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 

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. 

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 FTA-Knowledge@

dot.gov at least three business days prior 

to the event. If you have any questions, 

please email FTA-Knowledge@dot.gov. 

FOR FURTHER INFORMATION CONTACT: For 

general information, contact PTASP_

QA@dot.gov. For program matters, 

contact Adrianne Malasky, Office of 

Transit Safety and Oversight, (202) 366– 

1783 or Adrianne.Malasky@dot.gov. For 

legal matters, contact Michael Culotta, 

Office of Chief Counsel, (212) 668–2170 

or Michael.Culotta@dot.gov. 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 AgencySpecific 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 


sradovich on DSK3GMQ082PROD with RULES2
Federal Register / Vol. 83, No. 139 / Thursday, July 19, 2018 / Rules and Regulations 34419 

1–40: U.S. Passenger Miles (Millions) 1960–2015,’’ 

at https://www.bts.gov/archive/publications/ 

national_transportation_statistics/table_01_40. 

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. 

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: 

• 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)); 

• Include performance targets based 

on the safety performance criteria 

established under the National Public 

Transportation Safety Plan (49 CFR 

673.11(a)(3)); 

• Address all applicable requirements 

and standards as set forth in FTA’s 

Public Transportation Safety Program 

and National Public Transportation 

Safety Plan (49 CFR 673.11(a)(4)); and 

• Establish a process and timeline for 

conducting an annual review and 

update of the Public Transportation 

Agency Safety Plan (49 CFR 

673.11(a)(5)). 

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. 


sradovich on DSK3GMQ082PROD with RULES2
34420 Federal Register / Vol. 83, No. 139 / Thursday, July 19, 2018 / Rules and Regulations 

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; § 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 


sradovich on DSK3GMQ082PROD with RULES2
Federal Register / Vol. 83, No. 139 / Thursday, July 19, 2018 / Rules and Regulations 34421 

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 

§ 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. 


sradovich on DSK3GMQ082PROD with RULES2
34422 Federal Register / Vol. 83, No. 139 / Thursday, July 19, 2018 / Rules and Regulations 

TABLE 1—SUMMARY OF THE COSTS AND THE POTENTIAL BENEFITS IF ADDITIONAL UNQUANTIFIED MITIGATION

INVESTMENTS OCCUR

[2016 Dollars] 

Current dollar 

value 

7% Discounted value 3% Discounted value 

Qualitative Benefits ...................................................................................................................... • Reduced bus and rail safety incidents with 

mitigation actions. 

• Reduced delays in operations. 

Estimated Costs (20-Year Estimate) ........................................................................................... $602,485,710 $323,732,747 $450,749,898 

Unquantified Costs ...................................................................................................................... • 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/FR2013-10-03/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: 

• An approval by the transit agency’s 

board of directors, or an equivalent 

entity, and a signature from the transit 

agency’s Accountable Executive; 

• 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; 

• Performance targets based on the 

safety performance measures set out in 

the National Public Transportation 

Safety Plan; 

• Compliance with FTA’s Public 

Transportation Agency Safety Plan and 

FTA’s Public Transportation Safety 

Program; and 

• 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=FTA2015-0021-0012); (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/ 


sradovich on DSK3GMQ082PROD with RULES2
Federal Register / Vol. 83, No. 139 / Thursday, July 19, 2018 / Rules and Regulations 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=FBj5HRat

wGA&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/FR2016-02-05/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/FR2016-03-16/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 


sradovich on DSK3GMQ082PROD with RULES2
34424 Federal Register / Vol. 83, No. 139 / Thursday, July 19, 2018 / Rules and Regulations 

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 USCGinspected 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 


sradovich on DSK3GMQ082PROD with RULES2
Federal Register / Vol. 83, No. 139 / Thursday, July 19, 2018 / Rules and Regulations 34425 

term diminishes advances made by 

safety and risk management 

professionals to adopt and promote biasfree 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/FR2016-03-16/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 nonrail 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 


sradovich on DSK3GMQ082PROD with RULES2
34426 Federal Register / Vol. 83, No. 139 / Thursday, July 19, 2018 / Rules and Regulations 

2See Merriam-Webster’s Collegiate Dictionary 

(11th edition). 

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 noncollision-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 wearand-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. 

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 


sradovich on DSK3GMQ082PROD with RULES2
Federal Register / Vol. 83, No. 139 / Thursday, July 19, 2018 / Rules and Regulations 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 


sradovich on DSK3GMQ082PROD with RULES2
34428 Federal Register / Vol. 83, No. 139 / Thursday, July 19, 2018 / Rules and Regulations 

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 nontraditional 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 parttime 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 


sradovich on DSK3GMQ082PROD with RULES2
Federal Register / Vol. 83, No. 139 / Thursday, July 19, 2018 / Rules and Regulations 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 


sradovich on DSK3GMQ082PROD with RULES2
34430 Federal Register / Vol. 83, No. 139 / Thursday, July 19, 2018 / Rules and Regulations 

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 nonrevenue 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 nonrevenue 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 nonexhaustive 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 


sradovich on DSK3GMQ082PROD with RULES2
Federal Register / Vol. 83, No. 139 / Thursday, July 19, 2018 / Rules and Regulations 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 


sradovich on DSK3GMQ082PROD with RULES2
34432 Federal Register / Vol. 83, No. 139 / Thursday, July 19, 2018 / Rules and Regulations 

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 


sradovich on DSK3GMQ082PROD with RULES2
Federal Register / Vol. 83, No. 139 / Thursday, July 19, 2018 / Rules and Regulations 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 


sradovich on DSK3GMQ082PROD with RULES2
34434 Federal Register / Vol. 83, No. 139 / Thursday, July 19, 2018 / Rules and Regulations 

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-andguidance/safety/transit-safety-oversighttso). 

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 AgencySpecific 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 


sradovich on DSK3GMQ082PROD with RULES2
Federal Register / Vol. 83, No. 139 / Thursday, July 19, 2018 / Rules and Regulations 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 


sradovich on DSK3GMQ082PROD with RULES2
34436 Federal Register / Vol. 83, No. 139 / Thursday, July 19, 2018 / Rules and Regulations 

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, 


sradovich on DSK3GMQ082PROD with RULES2
Federal Register / Vol. 83, No. 139 / Thursday, July 19, 2018 / Rules and Regulations 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 noncompliance 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 riskbased 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. 


sradovich on DSK3GMQ082PROD with RULES2
34438 Federal Register / Vol. 83, No. 139 / Thursday, July 19, 2018 / Rules and Regulations 

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 threeyear 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 


sradovich on DSK3GMQ082PROD with RULES2
Federal Register / Vol. 83, No. 139 / Thursday, July 19, 2018 / Rules and Regulations 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. 


sradovich on DSK3GMQ082PROD with RULES2
34440 Federal Register / Vol. 83, No. 139 / Thursday, July 19, 2018 / Rules and Regulations 

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 nonpunitive 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 


sradovich on DSK3GMQ082PROD with RULES2
Federal Register / Vol. 83, No. 139 / Thursday, July 19, 2018 / Rules and Regulations 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 


sradovich on DSK3GMQ082PROD with RULES2
34442 Federal Register / Vol. 83, No. 139 / Thursday, July 19, 2018 / Rules and Regulations 

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 


sradovich on DSK3GMQ082PROD with RULES2
Federal Register / Vol. 83, No. 139 / Thursday, July 19, 2018 / Rules and Regulations 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, 


sradovich on DSK3GMQ082PROD with RULES2
34444 Federal Register / Vol. 83, No. 139 / Thursday, July 19, 2018 / Rules and Regulations 

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. 


sradovich on DSK3GMQ082PROD with RULES2
Federal Register / Vol. 83, No. 139 / Thursday, July 19, 2018 / Rules and Regulations 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 onesize-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 indepth 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. 


sradovich on DSK3GMQ082PROD with RULES2
34446 Federal Register / Vol. 83, No. 139 / Thursday, July 19, 2018 / Rules and Regulations 

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 welldocumented and robust selfexamination. 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 


sradovich on DSK3GMQ082PROD with RULES2
Federal Register / Vol. 83, No. 139 / Thursday, July 19, 2018 / Rules and Regulations 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 mediumsized 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 


sradovich on DSK3GMQ082PROD with RULES2
34448 Federal Register / Vol. 83, No. 139 / Thursday, July 19, 2018 / Rules and Regulations 

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/FR2016-03-16/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 


sradovich on DSK3GMQ082PROD with RULES2
Federal Register / Vol. 83, No. 139 / Thursday, July 19, 2018 / Rules and Regulations 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/regulationsand-guidance/safety/transit-safetyoversight-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 


sradovich on DSK3GMQ082PROD with RULES2
34450 Federal Register / Vol. 83, No. 139 / Thursday, July 19, 2018 / Rules and Regulations 

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/regulationsand-guidance/safety/transit-safetyoversight-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, 


sradovich on DSK3GMQ082PROD with RULES2
Federal Register / Vol. 83, No. 139 / Thursday, July 19, 2018 / Rules and Regulations 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 ADAcompliant; 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 


sradovich on DSK3GMQ082PROD with RULES2
34452 Federal Register / Vol. 83, No. 139 / Thursday, July 19, 2018 / Rules and Regulations 

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 


sradovich on DSK3GMQ082PROD with RULES2
Federal Register / Vol. 83, No. 139 / Thursday, July 19, 2018 / Rules and Regulations 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 


sradovich on DSK3GMQ082PROD with RULES2
34454 Federal Register / Vol. 83, No. 139 / Thursday, July 19, 2018 / Rules and Regulations 

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. 


sradovich on DSK3GMQ082PROD with RULES2
Federal Register / Vol. 83, No. 139 / Thursday, July 19, 2018 / Rules and Regulations 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=FTA2015-0021-0012); (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=FBj5HRatw

GA&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 


sradovich on DSK3GMQ082PROD with RULES2
34456 Federal Register / Vol. 83, No. 139 / Thursday, July 19, 2018 / Rules and Regulations 

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 § 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), § 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), § 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. 


sradovich on DSK3GMQ082PROD with RULES2
Federal Register / Vol. 83, No. 139 / Thursday, July 19, 2018 / Rules and Regulations 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 § 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), § 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 § 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), § 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 § 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 

§ 673.11(a)(6), and the elements of SMS 

in Subpart C cover remaining 

requirements. FTA has developed a 

crosswalk between each of the twentyone 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/regulationsand-guidance/safety/transit-safetyoversight-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 § 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 § 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 § 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 


sradovich on DSK3GMQ082PROD with RULES2
34458 Federal Register / Vol. 83, No. 139 / Thursday, July 19, 2018 / Rules and Regulations 

3NTSB 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.’’ 

4See 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. 

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 § 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 § 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), § 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 NonMetropolitan 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 § 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 § 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

Pursuant to § 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 § 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. 


sradovich on DSK3GMQ082PROD with RULES2
Federal Register / Vol. 83, No. 139 / Thursday, July 19, 2018 / Rules and Regulations 34459 

5See FTA’s former State Safety Oversight rule at 

49 CFR 659.19(u). 

6The 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). 

673.25 Safety Risk Management 

Pursuant to § 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

Pursuant to § 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. 

Pursuant to § 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 § 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 

§ 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 § 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 § 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 § 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 § 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 § 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 


sradovich on DSK3GMQ082PROD with RULES2
34460 Federal Register / Vol. 83, No. 139 / Thursday, July 19, 2018 / Rules and Regulations 

for News Starts and other major capital 

projects to extend, rehabilitate, or 

modify an existing system, or to replace 

vehicles and equipment. 

Pursuant to § 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 

§ 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 § 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, datadriven 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, 


sradovich on DSK3GMQ082PROD with RULES2
Federal Register / Vol. 83, No. 139 / Thursday, July 19, 2018 / Rules and Regulations 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 USDOTstandard 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 Estimate) ................................ 123,718,180,901 60,388,191,787 89,104,618,678 

Qualitative Benefits ...................................................................... • Reduced safety incidents with mitigation actions. 

• Reduced delays in operations. 


sradovich on DSK3GMQ082PROD with RULES2
34462 Federal Register / Vol. 83, No. 139 / Thursday, July 19, 2018 / Rules and Regulations 

TABLE 2—SUMMARY OF THE COSTS AND THE POTENTIAL BENEFITS IF ADDITIONAL UNQUANTIFIED MITIGATION

INVESTMENTS OCCUR—Continued 

Current dollar value 7% Discounted value 3% Discounted value 

Estimated Costs (20-Year Estimate) ........................................... 602,485,710 323,732,747 450,749,898 

Unquantified Costs ...................................................................... • 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 nonprofit organizations that operate public 

transportation systems in smallurbanized 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 


sradovich on DSK3GMQ082PROD with RULES2
Federal Register / Vol. 83, No. 139 / Thursday, July 19, 2018 / Rules and Regulations 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 

responses 

Burden hours 

per response 

Total annual 

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 


sradovich on DSK3GMQ082PROD with RULES2
34464 Federal Register / Vol. 83, No. 139 / Thursday, July 19, 2018 / Rules and Regulations 

PRA costs Year 1 Year 2 Year 3 Total 

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=FTA2015-0021-0012); (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 


sradovich on DSK3GMQ082PROD with RULES2
Federal Register / Vol. 83, No. 139 / Thursday, July 19, 2018 / Rules and Regulations 34465 

from March 1, 2016. The video is 

available at the following link: https:// 

www.youtube.com/watch?v=FBj5HRa

twGA&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. 

■ 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 

§ 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. 

§ 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. 

§ 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 


sradovich on DSK3GMQ082PROD with RULES2
34466 Federal Register / Vol. 83, No. 139 / Thursday, July 19, 2018 / Rules and Regulations 

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 

§ 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 


sradovich on DSK3GMQ082PROD with RULES2
Federal Register / Vol. 83, No. 139 / Thursday, July 19, 2018 / Rules and Regulations 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. 

§ 673.13 Certification of compliance. 

(a) Each transit agency, or State as 

authorized in § 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. 

§ 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 

§ 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 § 673.23; 

(b) Safety Risk Management as 

described in § 673.25; 

(c) Safety Assurance as described in 

§ 673.27; and 

(d) Safety Promotion as described in 

§ 673.29. 

§ 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-today 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. 

§ 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 


sradovich on DSK3GMQ082PROD with RULES2
34468 Federal Register / Vol. 83, No. 139 / Thursday, July 19, 2018 / Rules and Regulations 

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. 

§ 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. 

§ 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 

§ 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 


sradovich on DSK3GMQ082PROD with RULES2