[Federal Register Volume 80, Number 39 (Friday, February 27, 2015)]
[Proposed Rules]
[Pages 11002-11030]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-03841]



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Vol. 80

Friday,

No. 39

February 27, 2015

Part V





Department of Transportation





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Federal Transit Administration





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49 CFR Part 674





State Safety Oversight; Proposed Rule

Federal Register / Vol. 80 , No. 39 / Friday, February 27, 2015 / 
Proposed Rules

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DEPARTMENT OF TRANSPORTATION

Federal Transit Administration

49 CFR Part 674

[Docket No. FTA-2015-0003]
RIN 2132-AB19


State Safety Oversight

AGENCY: Federal Transit Administration (FTA), DOT.

ACTION: Notice of proposed rulemaking; request for comments.

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SUMMARY: This notice seeks public comment on proposed rules that would 
transform and strengthen State Safety Oversight (SSO) of rail fixed 
guideway public transportation systems. FTA will issue a final rule and 
response to comments following the close of the comment period. Once 
FTA issues a final rule, the agency will rescind its current 
regulations.

DATES: Comments must be received by April 28, 2015.

ADDRESSES: Please submit your comments by only one of the following 
methods:
    <bullet> Online: Use the Federal eRulemaking portal at http://www.regulations.gov and follow the instructions for submitting 
comments.
    <bullet> U.S. Mail: Send your comments to the Docket Management 
Facility, U.S. Department of Transportation, 1200 New Jersey Avenue 
SE., W12-140, Washington, DC 20590-0001.
    <bullet> Hand Delivery or Courier: Go to Room W12-140 on the ground 
floor of the West Building, U.S. Department of Transportation 
headquarters, 1200 New Jersey Avenue SE., between 9 a.m. and 5 p.m. 
Eastern time, Monday through Friday except Federal holidays.
    <bullet> Telefax: Send your comments to 202-493-2251.
    Instructions: All comments must include the docket number for this 
rulemaking: FTA-2015-0003. Submit two copies of your comments if you 
submit them by mail. For confirmation that FTA received your comments, 
include a self-addressed, stamped postcard. All comments received will 
be posted without change to www.regulations.gov, including any personal 
information provided. Please see the Privacy Act heading under 
SUPPLEMENTARY INFORMATION below, for Privacy Act information pertinent 
to any submitted comments or materials, and you may review DOT's 
complete Privacy Act Statement published in the Federal Register on 
April 11, 2000, at 65 FR 19477.
    Docket Access: For access to background documents and comments 
received in the rulemaking docket, go to www.regulations.gov or to the 
U.S. Department of Transportation, 1200 New Jersey Avenue SE., Room 
W12-140, Washington, DC 20590 between 9:00 a.m. and 5:00 p.m., Monday 
through Friday except Federal holidays.

FOR FURTHER INFORMATION CONTACT: For program matters, Lynn Spencer, 
Director, FTA Office of System Safety, telephone 202-366-5112 or 
<a href="/cdn-cgi/l/email-protection#8ac6f3e4e4a4d9faefe4e9eff8caeee5fea4ede5fc"><span class="__cf_email__" data-cfemail="6925100707473a190c070a0c1b290d061d470e061f">[email protected]</span></a>; For legal matters, Richard Wong, FTA Office of 
Chief Counsel, telephone 202-366-0675 or <a href="/cdn-cgi/l/email-protection#4b192228232a392f651c24252c0b2f243f652c243d"><span class="__cf_email__" data-cfemail="f1a3989299908395dfa69e9f96b1959e85df969e87">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: 

Executive Summary

    This rulemaking would replace the regulations for State Safety 
Oversight (SSO) of rail fixed guideway public transportation systems in 
place for the past twenty years, and significantly strengthen the 
program to prevent and mitigate accidents and incidents on those 
systems. In the Moving Ahead for Progress in the 21st Century Act (MAP-
21; Pub. L. 112-141, July 6, 2012), Congress directed FTA to establish 
a comprehensive Public Transportation Safety Program (codified at 49 
U.S.C. 5329), one element of which is the State Safety Oversight 
program. The purpose of today's NPRM is to carry out the several 
explicit statutory mandates to strengthen the States' oversight of the 
safety of their rail transit systems, and ensure that the States' 
regulatory agencies have the necessary enforcement authority and 
financial and human resources for that purpose.
    In the legislative history of MAP-21, Congress took note of several 
critical weaknesses in the State Safety Oversight program, including:
    <bullet> Lack of adequate and consistent safety practices across 
rail transit systems
    <bullet> Lack of regulatory, oversight, and enforcement authority
    <bullet> Limited SSO program funding, staff, training, and other 
resources
    <bullet> Lack of SSO financial and legal independence from the rail 
transit agencies they oversee.
    See generally, Sen. Rpt. 111-232 (July 26, 2010).
    Today's NPRM is the critical first step in meeting the MAP-21 
requirements for State Safety Oversight of rail fixed guideway public 
transportation systems now set forth at 49 U.S.C. 5329(e). Once FTA 
issues a final rule for State Safety Oversight, to be codified at 49 
CFR part 674, the agency will rescind the current regulations at 49 CFR 
part 659.

Legal Authority

    Section 20021 of MAP-21 amended 49 U.S.C. 5329 by adding several 
new provisions that required FTA to establish a comprehensive public 
transportation safety program, the elements of which include a National 
Public Transportation Safety Plan; a training and certification program 
for Federal, state, and local transportation agency employees with 
safety responsibilities; public transportation agency safety plans; and 
a strengthened State Safety Oversight Program, consisting of elements 
at both the state and rail transit agency level.

Summary of Key Provisions

    The NPRM proposes to make the following changes to strengthen the 
existing SSO program:
    <bullet> States would assume greater responsibility for overseeing 
the safety of their rail fixed guideway systems.
    <bullet> FTA would review and approve each state's SSO program, 
including certifying whether states are meeting the statutory criteria 
and withholding funds from those states that do not.
    <bullet> FTA would impose financial penalties on those states with 
non-existent or non-compliant safety oversight programs.

Costs and Benefits

    As discussed in greater detail below, FTA conducted a task-by-task 
analysis to assess recurring and non-recurring costs for the proposed 
regulations to SSOs and rail transit agencies against the recurring 
costs for the current SSO regulations. Compared to current spending 
levels of State Safety Oversight activities, the proposed rule would 
require an incremental $9.5 million per year on the part of SSOAs and 
$13.1 million for rail transit agencies, compared to current spending 
levels. FTA is providing approximately $22 million in grant funds each 
year to the States to off-set this NPRM's annual costs, meaning that 
this rulemaking is revenue neutral between the Federal government and 
the States. FTA also provides funding that rail transit agencies may 
use for these purposes, but is unable to provide an estimate of how 
much FTA funds will be used here. FTA conducted a breakeven analysis in 
order to determine what amount of the quantified benefits would need to 
accrue to outweigh the costs for this rulemaking and the Transit Agency 
Safety Plan by looking at, primarily, the safety events reported to FTA 
and, in a more conservative analysis, only the 5 NTSB-investigated 
accidents since 2004 that were related to inadequate safety oversight 
programs.

[[Page 11003]]

Background

    The Moving Ahead for Progress in the 21st Century Act (``MAP-21''; 
Pub. L. 112-141), authorizes a comprehensive Public Transportation 
Safety Program at 49 U.S.C. 5329. Four key components of the program 
are the National Public Transportation Safety Plan, authorized by 
Section 5329(b); the Public Transportation Safety Certification 
Training Program, authorized by Section 5329(c); the Public 
Transportation Agency Safety Plans, required by Section 5329(d); and 
the State Safety Oversight Program, authorized by Section 5329(e). FTA 
will issue rules to carry out all of these plans and programs under the 
rulemaking authority of 49 U.S.C. 5329(f)(7).
    On October 3, 2013, FTA issued an Advance Notice of Proposed 
Rulemaking (ANPRM) for the National Public Transportation Safety Plan 
(``National Plan''), the Public Transportation Safety Certification 
Training Program (``Certification Training Program''), and the Public 
Transportation Agency Safety Plans (``Transit Agency Safety Plans''). 
78 FR 61251-73. On April 30, 2014, FTA proposed interim provisions for 
a Safety Certification Training Program, as authorized by 49 U.S.C. 
5329(c)(2). 79 FR 24363. In today's Federal Register, FTA is issuing 
final interim certification safety training program provisions. FTA is 
now reviewing the comments on the ANPRM for the National Plan, 
Certification Training Program, and Transit Agency Safety Plans. In the 
near future, FTA expects to issue an NPRM for the National Plan, 
Certification Training Program, and Transit Agency Safety Plans.
    Earlier, on May 13, 2013, the Federal Transit Administrator issued 
a Dear Colleague letter to the public transportation industry 
announcing the agency's intention to adopt the framework and principles 
of Safety Management Systems (SMS) as the basis for all rulemakings and 
other initiatives FTA will undertake to improve the safety of public 
transportation. Both the Dear Colleague letter and a set of frequently 
asked questions about SMS are available on FTA's Web site at http://www.fta.dot.gov/tso_15177.html.
    This NPRM pertains only to the State Safety Oversight (SSO) Program 
authorized by 49 U.S.C. 5329(e). The rulemaking for the SSO Program 
differs from the other rulemakings under the Public Transportation 
Safety Program in that it will replace a set of regulations that have 
been in place since 1995, codified at 49 CFR part 659. The SSO 
regulations pertain only to a limited portion of the public 
transportation industry--the recipients of Federal funds under 49 
U.S.C. Chapter 53 that operate rail fixed guideway transit systems not 
subject to the jurisdiction of the Federal Railroad Administration 
(FRA), the States in which those rail systems lie, and the State Safety 
Oversight Agencies (SSOAs) required to oversee the safety of those rail 
systems. Conversely, the rulemakings for the National Plan, the Transit 
Agency Safety Plans, and the Safety Certification Training Program all 
arise under the authority of MAP-21, which took effect on October 1, 
2012; these rulemakings will apply to all modes of public 
transportation, both rail and rubber tire; and they will apply to the 
manufacturers of public transportation vehicles, as well as the 
operators of public transportation.
    To provide some context for this NPRM, the following is a brief 
history of FTA's State Safety Oversight Program.

History of State Safety Oversight

    FTA's predecessor agency, the Urban Mass Transportation 
Administration (UMTA), originated under the Urban Mass Transportation 
Act (UMT Act) of 1964--a Great Society initiative under the Kennedy and 
Johnson Administrations, designed to assist state and local governments 
in financing urban mass transportation systems ``to be operated by 
public or private mass transportation companies as determined by local 
needs.'' (Pub. L. 88-365; quoting Section 2(b)(3) of the UMT Act, 49 
U.S.C. app. 1602(b)(3)). UMTA's mission, at that time, was strictly 
limited to providing Federal financial assistance to develop and 
maintain municipal transit systems. UMTA had no regulatory authority 
whatsoever over any of its grant recipients. Deliberately, the Congress 
chose not to give UMTA any ability to establish national standards for 
safety in urban mass transportation. See, e.g., Amalgamated Transit 
Union v. Skinner, 894 F.2d 1362, 1364 (D.C. Cir. 1990).
    Several years thereafter, following a series of troubling accidents 
in the rail transit industry, Congress recognized a need to provide 
UMTA with a limited authority to investigate accidents and hazardous 
conditions in urban mass transportation. Specifically, in Section 107 
of the National Mass Transportation Assistance Act of 1974 (Pub. L. 93-
503), Congress instructed the agency to ``investigate unsafe conditions 
in any facility, equipment, or manner of operation financed under this 
Act which the Secretary believes creates a serious hazard of death or 
injury.'' The statute further directed UMTA to determine the nature and 
extent of hazardous conditions on transit systems; determine the means 
that might best correct or eliminate those hazardous conditions; and 
compel a grant recipient to submit a plan for correcting or eliminating 
those hazardous conditions. Eight years later, however, in the Surface 
Transportation Assistance Act of 1982, the Congress weakened this 
investigatory authority by repealing Section 107 of the National Mass 
Transportation Assistance Act of 1974; moving the authority to Section 
22 of the UMT Act; and amending the statute to make the authority 
discretionary--not mandatory--striking the word ``shall'' and inserting 
the word ``may.''
    This very limited Federal authority for safety did not prove 
satisfactory, in the view of the National Transportation Safety Board 
(NTSB or ``Board''). In August 1991, after a number of accidents in the 
industry--including very serious accidents on rapid rail systems in 
Philadelphia, Chicago, and New York City--the Board published a study 
titled ``Oversight of Rail Rapid Transit Safety'' (NTSB/SS-91/02) in 
which it urged all States to develop or revise safety programs to 
ensure comprehensive and effective oversight over rapid rail systems in 
their jurisdictions. The NTSB suggested that States have primary 
authority for oversight of rail transit safety, but it urged UMTA to 
evaluate the effectiveness of States' oversight of rail transit, 
develop guidelines, and require States and transit operators to use 
their UMTA grant funds to improve the safety of rail transit systems. 
Also, the NTSB implored UMTA to withhold its Federal financial 
assistance as necessary pending corrective action by the States and 
transit operators.
    Very shortly thereafter, in response to the NTSB recommendations, 
the Congress created a State Safety Oversight program for rail fixed 
guideway transit safety in Section 3029 of the Intermodal Surface 
Transportation Efficiency Act (ISTEA), enacted in December 1991 (Pub. 
L. 102-240). Among the many fundamental changes ISTEA made to the 
Federal-aid programs for highways and public transportation, ISTEA 
renamed UMTA as the Federal Transit Administration (FTA), and directed 
FTA to compel States with rail transit systems within their borders not 
otherwise subject to the jurisdiction of the Federal Railroad 
Administration (FRA) (e.g., commuter rail systems, or light rail 
systems connecting to the ``general railroad system'' of the United 
States, as

[[Page 11004]]

described in 49 CFR part 209 Appendix A) to establish and carry out 
safety program plans for each of those rail transit systems. The 
statute directed that the safety program plans include, at minimum, 
core requirements for safety, lines of authority, levels of 
responsibility, and methods of documentation for those subjects. 
Further, Section 3029 of ISTEA vested FTA with explicit authority to 
withhold funding from any State that did not comply with the statutory 
mandates, and directed FTA to promulgate rules for that purpose. In 
enacting Section 3029, the Congress agreed with NTSB that the States, 
not FTA, should be the principal oversight authorities for rail transit 
within their jurisdictions, given that public transportation is an 
inherently local activity that, with few exceptions, did not cross 
state boundaries. Notably, this new authority for FTA, initially 
codified at Section 28 of the Federal Transit Act, later re-codified at 
49 U.S.C. 5330, made no provision for oversight of bus operations--
perhaps because the 1991 NTSB report had focused on rail transit.
    The First Rulemaking: To meet the ISTEA directives, FTA issued an 
Advance Notice of Proposed Rulemaking for State Safety Oversight on 
June 25, 1992, at 57 FR 28572-5, followed by a Notice of Proposed 
Rulemaking (NPRM) on December 9, 1993, at 58 FR 64856-69. On December 
27, 1995, FTA promulgated a final rule for State Safety Oversight at 60 
FR 67034-48. In short, the final rule obliged every State with a rail 
transit system not subject to the jurisdiction of FRA to establish an 
oversight agency, and obliged that oversight agency to develop a 
``system safety program standard'' that, at a minimum, adopted the 
uniform guidelines for rail transit systems set by the Manual for the 
Development of Rail System Safety Program Plans, published by the 
American Public Transit Association (APTA). These ``APTA Guidelines'' 
were incorporated by reference into the final rule. Also, the final 
rule obliged the State oversight agencies to review safety audit 
reports from the rail systems, conduct on-site safety reviews at least 
once every three years, investigate accidents and ``unacceptable 
hazardous conditions'' as reported by the rail transit systems, approve 
``corrective action plans'' submitted by the rail transit systems, make 
annual reports to FTA summarizing its oversight activities for the 
preceding twelve months, and make periodic reports to FTA summarizing 
accidents, hazardous conditions, and corrective action plans. The 
effective date of the final rule was deferred to January 1, 1997, to 
give States an opportunity to enact state statutes and regulations to 
carry out the ISTEA mandates.
    The FTA SSO rule and the APTA Guidelines were widely accepted as 
the baseline for State oversight of the safety of rail transit until 
the summer of 2001. In June and August of that year, there were two 
collisions of rapid rail trains on the Chicago Transit Authority (CTA) 
system--both investigated by the NTSB--which called into question the 
effectiveness of the rule and the guidelines. In its Special 
Investigation Report issued in September 2002 (NTSB/SIR-02/01), the 
Board determined the probable cause of both accidents to have been the 
train operators' failure to comply with operating rules designed to 
prevent those types of collisions, and the failure of CTA management to 
exercise adequate oversight of the operational safety of its rapid rail 
system. Additionally, however, the Board identified several weaknesses 
in FTA's SSO program, and noted, specifically, that a previous audit of 
CTA by APTA had not identified any deficiencies in CTA's adherence to 
APTA's ``System Safety Checklist''--a procedure that used only record 
reviews and supplemental spot checks to gauge whether operating rules 
were being followed, and which provided little guidance on what rules a 
compliance program should entail or how those rules should be carried 
out. Thus, the NTSB concluded that the APTA Guidelines were not 
sufficiently specific for making assessments of the effectiveness of 
rail transit operators' safety programs, nor were the Guidelines an 
effective tool for State oversight of rail transit safety. The NTSB 
called on APTA to revise its manual to provide explicit guidance to the 
industry on auditing the effectiveness of rail transit safety 
compliance programs, and for FTA to amend its SSO regulations at 49 CFR 
part 659, accordingly.
    The Second Rulemaking: In response to the 2002 NTSB report on the 
CTA accidents, on March 9, 2004, FTA published an NPRM at 69 FR 11218-
32 intended to strengthen the SSO regulations. Specifically, FTA 
proposed to remove the incorporation by reference of the APTA 
Guidelines from 49 CFR part 659, and in lieu thereof, establish a set 
of enhanced, performance-based measures for the rail transit industry, 
including, notably, a rule making hazard identification and resolution 
a performance-based procedure, as opposed to the previous practice of 
allowing a rail transit operator or an SSOA to subjectively determine 
and address an ``unacceptable hazardous condition.'' FTA issued a final 
rule on April 29, 2005, at 70 FR 22562-83, which is the rule still in 
place today. In the final rule, FTA chose to include a good many of the 
APTA Guidelines as regulatory standards. Further, the final rule 
clarified the roles and responsibilities of States and their SSOAs; set 
a new definition of ``hazard,'' and requirements for hazard management 
plans; revised the requirements for SSOAs to conduct investigations; 
and fleshed out the minimum standards for system safety program plans, 
accident notification, and corrective action plans.
    Notwithstanding the amendments to the SSO regulations in the 2005 
rulemaking, the regulations were criticized for their lack of rigor, 
and the States' SSO programs were criticized for lack of authority, 
resources, and expertise. Most notably, in July 2006, the U.S. 
Government Accountability Office (GAO) criticized the regulations and 
identified some fundamental weaknesses in SSOAs in a report titled 
``Rail Transit: Additional Federal Leadership Would Enhance FTA's State 
Safety Oversight Program,'' http://www.gao.gov/products/GAO-06-821. The 
GAO report found that the staffing levels and expertise varied greatly 
across the SSOAs, and that by their own admission, many of the SSOAs 
lacked enough qualified staff and adequate levels of training to meet 
their responsibilities--some of them employing as few as 0.1 or 0.2 
full-time equivalent positions for dedicated rail transit safety 
oversight--and for many of them, the lack of funding was a serious 
impediment. The GAO noted that the SSO regulations provided no 
enforcement power to the SSOAs, and very little enforcement power to 
FTA, with only the option of withholding up to five percent of a rail 
transit system's urbanized area formula funding if FTA were to find a 
State not in compliance with the SSO regulations. Additionally, the GAO 
report faulted FTA for having failed to set goals and performance 
measures for State Safety Oversight, and having failed to audit SSOAs 
as often as originally planned. GAO urged FTA to set both short- and 
long-term goals for State Safety Oversight, with measures of progress 
toward each of those goals. Further, the GAO recommended that FTA audit 
each of the SSOAs at least once every three years, and develop an 
appropriate training curriculum for SSOAs that would include courses on

[[Page 11005]]

how to conduct oversight of rail transit systems.
    Legislation Leading to Enactment of State Safety Oversight 
Authority in MAP-21: Not long after the GAO's criticisms, the rail 
transit industry suffered a string of fatal accidents and accidents 
with multiple personal injuries. On November 30, 2006, a Washington 
Metropolitan Area Transit Authority (WMATA) Blue Line train struck and 
killed two employees inspecting rapid rail track in Alexandria, 
Virginia. On January 7, 2007, a WMATA Green Line train derailed near 
the Mt. Vernon station in Washington, DC, injuring 23 people and 
causing $3.8 million in damage. On May 28, 2008, two Massachusetts Bay 
Transportation Authority (MBTA) light rail trains collided with one 
another on the Green Line in Newton, Massachusetts--a suburb of 
Boston--killing the driver of the second train, injuring eight people, 
and causing $8 million in damage. On May 8, 2009, the MBTA suffered 
another accident on its Green Line light rail system in which one train 
rear-ended another in the tunnel near the Government Center station in 
downtown Boston; 68 people were injured, with more than $9 million in 
damage. On June 22, 2009, two WMATA rapid rail trains collided with one 
another near the Fort Totten station on the Red Line, killing the 
driver of the second train and eight passengers, injuring another 52 
passengers, and causing $12 million in damage. On July 18, 2009, two 
Municipal Transportation Agency light rail trains collided with one 
another at the West Portal station in San Francisco, injuring the 
drivers of both trains and 46 people and causing $4.5 million in 
damage. And in August and September, 2009, two WMATA maintenance 
employees lost their lives while working on the rapid rail system; one 
was struck by a maintenance vehicle on the Orange Line, the other by a 
train on the Blue Line.
    In conducting its several investigations, the NTSB found a variety 
of probable causes for these accidents. Among them, equipment 
malfunctions; equipment in poor or marginal condition, including 
equipment that can pose particular risks to safety, such as signal 
systems; lack of vehicle crashworthiness; and employee error, such as 
inattentiveness, or failure to follow a rail transit system's operating 
procedure. In the instance of WMATA, the NTSB found the lack of a 
strong safety culture to be a contributing factor. Also, the NTSB found 
a lack of adequate oversight both by the rail transit systems' State 
Safety Oversight Agencies, and FTA.
    In July 2009--one month after the WMATA Red Line accident near the 
Fort Totten station--Senators and Representatives from the Maryland and 
Virginia delegations introduced the National Metro Safety Act in both 
houses of Congress (H.R. 3338, S 1506, 111th Cong. (2009)). The bills 
would have required FTA to establish national minimum safety standards 
for transit systems, including several particular standards recommended 
by the NTSB pertaining to event recorders, emergency access and egress, 
crashworthiness of vehicles, and employee hours of service. Neither 
bill was reported out of committee. In December 2009, on behalf of the 
President, Secretary of Transportation Ray LaHood and Federal Transit 
Administrator Peter Rogoff formally submitted a legislative proposal to 
the Congress that contemplated a more comprehensive approach to safety 
in public transportation. In testimony before both the House Committee 
on Transportation and Infrastructure and the Senate Committee on 
Banking, Housing, and Urban Affairs, the Secretary and the 
Administrator presented the details of this proposal, which, 
ultimately, were introduced in both houses in February 2010 as the 
Public Transportation Safety Program Act of 2010 (H.R. 4643, S 3105, 
111th Cong. (2010)). Citing the warning signs of increasing collisions, 
derailments, and casualties, the Secretary and the Administrator 
emphasized that rail transit always carries the potential for 
catastrophic accident and damage--notwithstanding its record of being a 
very safe means of travel--and that the State Safety Oversight program, 
as it currently exists, suffered from a number of fundamental 
weaknesses:
    <bullet> Under the existing SSO framework, each rail transit system 
was free to determine its own safety practices. An SSOA would simply 
review those practices and report the progress of any corrective 
actions.
    <bullet> Each SSOA had only so much regulatory, oversight, and 
enforcement authority as had been given by the State government. In 
many instances, the SSOA lacked authority to enforce any standards or 
compel compliance by the rail transit systems it oversaw.
    <bullet> Many States viewed the SSO program as an unfunded mandate. 
Thus, many States devoted insufficient resources to the program, which 
compromised the abilities of SSOAs to recruit staff, provide adequate 
training to their staff, and develop their own expertise.
    <bullet> In many instances, an SSOA was dependent upon financial 
resources from the same entities it was obliged to oversee--the rail 
transit systems--thus creating a conflict of interest.
    In pertinent part, the Administration's bill would have required 
FTA to develop uniform, national standards for rail transit safety; 
given FTA authority to inspect rail transit systems for compliance with 
those standards; established a certification program for State Safety 
Oversight; authorized grants of 100 percent Federal funding for SSO 
programs, once certified; and required the SSO programs to be 
financially independent from the rail transit systems. Further, the 
Administration's bill would have given States the option to decline 
participation in the SSO program, without penalty, in which instance, 
FTA would have been required to perform the oversight function. Also, 
the Administration's bill would have given FTA authority to issue civil 
or criminal penalties for noncompliance. See generally, Examining the 
Federal Role in Overseeing the Safety of Public Transportation Systems: 
Hearing Before the Subcomm. On Hous., Transp. & Cmty. Dev. of the S. 
Comm. On Banking, Hous. & Urban Affairs, 111th Cong. 89-97 (2009).
    Both the House and Senate versions of the Administration's bill 
were referred to committees. In July 2010, the Senate committee on 
Banking, Housing, and Urban Affairs reported a bill sponsored by the 
chairman of the committee, Senator Dodd, titled the Public 
Transportation Safety Act of 2010 (S 3638, 111th Cong. (2010)), which 
laid the foundation for the State Safety Oversight provisions 
eventually enacted under MAP-21. The Senate Banking bill embraced most 
of the fundamental precepts of the Administration's legislative 
proposal, but it differed from the Administration's bill in that it did 
not allow a State to decline participation in the SSO program; the 
grants of Federal funds for an SSO program would require a 20 percent 
match; and States could be allowed as much as three years, after the 
effective date of a final rule, to develop an SSO program adequate for 
certification--after which, in the event of an inadequate SSO program, 
FTA would be authorized to withhold all Federal grant funds from all 
public transportation operators in that State, not just the rail 
transit systems. See generally, the Senate Banking committee report 
accompanying the Senate bill (S. Rept. 111-232; (2010)). The 111th 
Congress adjourned before the Senate could act on the Senate Banking 
bill, and the House did not consider any similar bill.

[[Page 11006]]

    In the 112th Congress, the Senate Banking committee re-introduced 
its Public Transportation Safety Act of 2010, which became Section 
20021 of the larger bill for reauthorization of surface 
transportation--the Moving Ahead for Progress in the 21st Century Act 
(S 1813, 112th Cong. (2012), ``MAP-21''), shepherded by the Senate 
Committee on Environment and Public Works--that passed the Senate on 
March 14, 2012. The House bill for reauthorization of surface 
transportation--the American Energy and Infrastructure Jobs Act of 2012 
(H.R. 7, 112th Cong. (2012))--had nothing comparable to the Senate bill 
insofar as State Safety Oversight of rail transit systems. Ultimately, 
the conferees from the House and Senate chose to adopt Section 20021 of 
the Senate bill, with some amendments, and the title of the Senate 
bill, ``MAP-21,'' as the title of the legislation that the president 
signed on July 6, 2012 (Pub. L. 112-141).

The New Statute and Today's Proposed Rulemaking

    As noted, MAP-21 authorizes a comprehensive Public Transportation 
Safety Program, now codified at 49 U.S.C. 5329. As part of this 
comprehensive program, new Section 5329(e) significantly revises the 
existing SSO program, creating a program that is more demanding of the 
States and their SSO programs, and FTA, as well, in several ways. 
First, with respect to the States, the statute requires them to submit 
their SSO programs to FTA for its approval. In order to gain this 
approval, the States must assume responsibility for overseeing the 
safety of their rail fixed guideway public transportation systems, 
adopt and enforce Federal and relevant State safety laws, determine 
appropriate staffing levels for their SSOAs, and ensure proper training 
and certification of their safety oversight personnel. The organization 
designated as an SSOA must be financially and legally independent of 
the rail transit systems they oversee, i.e., an SSOA cannot be 
reimbursed for its expenses by the rail transit agencies they oversee, 
nor can the SSOA be the same agency that operates a rail transit 
agency. An SSOA may not employ any individual who is also responsible 
for the administration of rail fixed guideway public transportation 
systems that are subject to the State's oversight. An SSOA must have 
investigative and enforcement authority under State law, must audit at 
least triennially the compliance of the rail transit systems under its 
oversight, and provide at least annually a status report to FTA, the 
Governor of the State, and the board of directors of the rail transit 
system. FTA is then obliged to submit an annual evaluation of the State 
Safety Oversight programs to the Congress.
    MAP-21 also made considerable changes regarding FTA's role in the 
SSO program. As mentioned previously, FTA must now approve each State's 
SSO program. In addition, FTA must establish a grant program to help 
the States develop and carry out their SSO functions, and to obtain the 
necessary training and certification for their SSOA staff. FTA must 
certify whether the States are meeting the statutory requirements, deny 
certification to those that are not, and FTA can withhold Federal funds 
until an SSO program can be certified. Congress provided FTA with 
additional authority to conduct inspections, investigations, audits, 
and examinations; test the equipment, facilities, rolling stock, and 
operations of rail transit systems; make reports and issue directives 
with respect to safety; issue subpoenas and take depositions from any 
employee of a rail transit system who is responsible for safety; 
require production of documents; and issue regulations for State Safety 
Oversight through public notice and comment.
    On February 6, 2013, the Federal Transit Administrator issued a 
Dear Colleague letter to the States and the public transportation 
industry, outlining the steps that each State must take to develop an 
SSO program and establish an SSOA in compliance with Section 5329. This 
letter is available on FTA's Web site at http://www.fta.dot.gov/tso.html On May 13, 2013, FTA published for public comment an 
illustrative apportionment of the SSO grant funds available to eligible 
States in Federal Fiscal Year 2013, at 78 FR 28014-8. On or before 
October 1, 2013, the Administrator notified each State, individually, 
of his decision whether to issue a certification for that State's SSO 
program, in accordance with the statutory deadline set by 49 U.S.C. 
5329(e)(7). On March 10, 2014, FTA announced the final apportionment of 
FY 2013 and FY 2014 grant funds for SSO programs, at 79 FR 13380. On 
February, 9, 2015, FTA published the apportionment for FY 2015 grant 
funds for SSO programs, at 80 FR 7254.
    Today's NPRM is a critical step in transforming and strengthening 
the regulatory framework for State Safety Oversight of rail fixed 
guideway public transportation systems. Once FTA issues a final rule 
for State Safety Oversight, the agency will rescind the current 
regulations at 49 CFR part 659. The following is a section-by-section 
analysis of the proposed rule in today's rulemaking:

Section-by-Section Analysis

Section 674.1 Purpose

    This section explains that the purpose of these regulations is to 
carry out the mandate of 49 U.S.C. 5329(e) for States to perform 
oversight of rail fixed guideway public transportation systems within 
their jurisdictions. This section differs only slightly in wording from 
the current rule at 49 CFR 659.1.

Section 674.3 Applicability

    This section explains that these regulations apply to States with 
rail fixed guideway public transportation systems, the SSOAs that 
oversee the safety of those systems, and entities that own or operate 
rail fixed guideway public transportation systems with Federal 
financial assistance from FTA. The first two sentences of this section 
are similar in wording to the current rule at 49 CFR 659.3, titled 
``Scope.''

Section 674.5 Policy

    This section identifies three separate, explicit policies that 
underlie these regulations: First, FTA is using the principles and 
methods of Safety Management Systems (SMS) as the basis for these 
regulations and all other regulations and policies FTA will issue under 
the authority of 49 U.S.C. 5329. Second, the primary responsibility for 
overseeing the safety of rail transit systems lies with the States--and 
a State's SSOA must have sufficient authority and resources to oversee 
the number, size, and complexity of rail transit systems that operate 
within that State. Third, FTA is obliged to make Federal funds 
available to eligible States to help them develop and carry out their 
SSO programs--and certify whether those SSO programs are adequate to 
promote the purposes of the public transportation safety programs under 
49 U.S.C. 5329. The current rule at 49 CFR part 659 does not include a 
statement of policy.

Section 674.7 Definitions

    This section sets forth a number of definitions for terms used 
repeatedly throughout the State Safety Oversight program and the other 
safety programs authorized by 49 U.S.C. 5329. Some of these defined 
terms are the same as set forth in the current regulations at 49 CFR 
part 659, but the wording of the definitions has been changed, in 
today's proposed rulemaking, for sake of clarity; readers should refer, 
specifically, to the definitions of ``contractor,'' ``corrective action 
plan,'' ``hazard,'' ``individual,'' ``investigation,'' ``passenger,'' 
``rail fixed

[[Page 11007]]

guideway public transportation system'' and ``rail transit agency.'' A 
few of the definitions remain the same as stated in the current 
regulations, or as stated in other FTA regulations; we refer, 
specifically, to the definitions of ``Administrator,'' ``FRA,'' 
``FTA,'' and ``State.''
    There are new definitions, however, for the terms ``National Public 
Transportation Safety Plan,'' ``Public Transportation Safety 
Certification Training Program,'' ``Public Transportation Agency Safety 
Plan,'' ``State Safety Oversight Agency (SSOA)'', and ``State Safety 
Oversight Program (SSOP),'' all of which are strictly consistent with 
the use of those terms in the statutes. And there are new, common-sense 
definitions for the terms ``Transit Agency Safety Plan,'' and 
``vehicle.'' ``Transit Agency Safety Plan'' is a shorthand reference to 
the Public Transportation Agency Safety Plan; and ``vehicle'' means any 
rolling stock used on a rail fixed guideway public transportation 
system, including but not limited to passenger and maintenance 
vehicles.
    We have also included definitions for the terms ``accident,'' 
``event,'' ``incident,'' and ``occurrence.'' We propose amending the 
definition for ``accident'' as it relates to injuries. In 49 CFR 
659.33, the definition includes, ``injuries requiring immediate medical 
attention away from the scene for two or more individuals.'' We propose 
changing that to ``one or more persons suffers a serious injury,'' and 
we propose adding the NTSB definition of ``serious injury'' found in 49 
CFR 830.2: ``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 nose); (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.'' FTA seeks comment on this change. 
The term ``event'' is defined as any accident, incident, or occurrence. 
As stated in our January 28, 2015, Federal Register notice on updates 
to the National Transit Database (NTD) safety information collection, 
we added the term ``event'' in order to cover all planned and unplanned 
events that are required to be reported to the NTD. The purpose of the 
change is to provide better alignment with nomenclature used in other 
transportation modes, and to provide clarity during data analysis 
conducted to identify safety trends. An ``incident'' is an event that 
exceeds the definition of ``occurrence,'' but does not meet the 
definition of ``accident.'' Examples include but are not limited to 
near misses, close calls, railyard derailments, non-serious injuries, 
and violations of safety standards. An occurrence is an event with no 
injuries, or where damage occurs to property or equipment but does not 
affect transit operations. FTA seeks comment on these definitions. In 
particular, FTA seeks comment on whether we should include definitions 
for ``close call'' and ``near miss'' in the final rule.
    Additionally, there are a number of new definitions in today's 
proposed rulemaking that are based on the principles and methods of 
Safety Management Systems (SMS). Readers should refer, specifically, to 
the terms ``accountable executive,'' ``risk,'' ``risk control,'' 
``safety assurance,'' ``Safety Management System,'' ``safety policy,'' 
``safety promotion,'' and ``safety risk management.'' In the years 
since the rules at 49 CFR part 659 were first issued in 1995, SMS has 
emerged as the best practice for enhancing safety in all modes of 
transportation, and the Secretary of Transportation instructed each of 
the Department's operating administrations to develop rules, plans, and 
programs to apply SMS to their grant recipients and regulated 
communities. See, http://www.fedeval.net/docs/2012Coplen_1.pdf. In 
brief, SMS is a formal, top-down, organization-wide approach to 
managing risks and assuring the effectiveness of risk controls. An SMS 
establishes lines of safety accountability throughout an organization, 
starting at the executive management level, and provides a structure to 
support a sound safety culture. SMS is not a one-size-fits-all 
approach, however. SMS is flexible, and can be scaled to the mode, 
size, and complexity of any transit operator, in any environment--
urban, suburban, or rural. As mentioned, both the Administrator's May 
13, 2013, Dear Colleague letter and a set of frequently asked questions 
about SMS are available on FTA's Web site at http://www.fta.dot.gov/tso_15177.html. Also, as explained below, the Appendix to these 
proposed rules, titled ``Safety Management Systems Framework,'' will 
give the reader a basic understanding of SMS.
    Many of the definitions for applying the principles and methods of 
SMS in proposed section 674.7 are very similar to those set forth in a 
Notice of Proposed Rulemaking and a Final Rule on SMS by FTA's sister 
agency, the Federal Aviation Administration (FAA). The NPRM, issued on 
October 7, 2010, at 75 FR 62008, titled ``Safety Management Systems for 
Certified Airports,'' proposes to apply the principles and methods of 
SMS to airports that hold certificates in accordance with 14 CFR part 
139. A Final Rule, issued on January 8, 2015, at 80 FR 1308, titled 
``Safety Management Systems for Domestic, Flag, and Supplemental 
Operations Certificate Holders,'' applies the principles and methods of 
SMS to domestic, international flag, and supplemental operations air 
carriers that hold certificates in accordance with 14 CFR part 121. FTA 
also anticipates that it will be incorporating many if not all of these 
same definitions for applying SMS to public transportation in its 
future rulemakings for the National Public Transportation Safety Plan, 
the Public Transportation Safety Certification Training Program, and 
the Public Transportation Agency Safety Plans.

Section 674.9 Transition From Previous Requirements for State Safety 
Oversight

    In framing the provisions of MAP-21 for a much stronger State 
Safety Oversight program--and much higher expectations of the States 
and their SSOAs--the Congress recognized that the States and the rail 
transit systems they oversee would need a period of transition. Also, 
the Congress recognized that FTA would need time to conduct rulemakings 
through public notice and comment. Thus, MAP-21 Section 20030(e) 
provides that the previous authorization statute for State Safety 
Oversight, 49 U.S.C. 5330, will remain in effect for three years after 
FTA promulgates a final rule under the authority of the new 
authorization statute for State Safety Oversight, 49 U.S.C. 5329(e). 
Although nothing in this rulemaking precludes a State from immediately 
establishing an oversight agency that fully complies with MAP-21's 
requirements, Congress recognized that many States would need time to 
enact enabling legislation during the transition from the current 
program to a MAP-21 compliant program, particularly in States where the 
legislature meets only part-time or biennially. This section in today's 
proposed rulemaking recognizes that transition. (See, specifically, 
proposed 49 CFR 674.9(a) in today's NPRM.) Also, this section states 
that the current SSO regulations at 49 CFR part 659 will be rescinded 
upon the effective date of a final rule under the new authorization 
statute, 49 U.S.C. 5329(e).

[[Page 11008]]

Section 674.11 State Safety Oversight Program

    Readers should please be mindful of the differences between a State 
Safety Oversight Program (SSOP) and the State Safety Oversight Agency 
(SSOA) that carries out an SSOP. In essence, an SSOA is a State agency 
that is obliged to interpret, administer, and enforce the State 
statutes enacted by a State legislature and the State regulations and 
program standards developed by a Governor and his or her designees in 
the executive branch of State government. An SSOP is the collection of 
law, rules, and administrative standards that define the minimum 
requirements for safety of rail public transportation in the State; the 
financial, physical, and human resources necessary to establish and 
maintain the SSOA; and the system of checks and balances, within State 
government, that holds an SSOA accountable for its actions.
    In enacting MAP-21, the Congress very carefully spelled out the 
different missions and functions of an SSOP and an SSOA. The missions 
and functions of an SSOP are specified at 49 U.S.C. 5329(e)(3). The 
missions and functions of an SSOA are specified at 49 U.S.C. 
5329(e)(4). In today's rulemaking, proposed section 674.11 states the 
missions and functions of an SSOP, and proposed section 674.13 states 
the missions and functions of an SSOA, as directed by the statutes. 
Most importantly, in an SSOP, a State must do the following: A State 
must explicitly assume responsibility for overseeing the safety of rail 
transit systems within its borders. A State must adopt and enforce 
Federal and relevant State law for that purpose. Not only must a State 
establish an SSOA, but it must ensure that the SSOA has a staffing 
level adequate to oversee the number, size, and complexity of the rail 
transit systems within the State, and that the staff of the SSOA are 
trained and qualified to perform their jobs. Further, a State must 
ensure that an SSOA does not receive any financial support from the 
rail transit systems the SSOA is obliged to oversee.
    In summary, an SSOP is the means by which a State ensures that an 
SSOA is sufficiently empowered by law, and supported with the resources 
necessary to do its job, without bias toward any rail transit system 
within the SSOA's oversight. Through the requirements for an SSOP, the 
Congress is calling on the Governors of all States with rail fixed 
guideway public transportation systems to create SSOAs that are agile, 
competent watchdogs for the safety of those rail transit systems. 
Moreover, MAP-21 rectifies the previous, untenable practice in which a 
number of SSOAs had to rely upon subsidization from one or more of the 
rail transit systems they were obliged to oversee; through the SSOP, a 
State must now ensure that those previous conflicts of interest no 
longer exist.

Section 674.13 Designation of Oversight Agency

    In MAP-21, the Congress established a set of requirements for 
designation of a State Safety Oversight Agency (SSOA) that are more 
prescriptive than those of SAFETEA-LU and the previous authorization 
statutes, including, notably, the requirements for financial and legal 
independence, audit, investigation and enforcement authority, and other 
safeguards against conflicts of interest between an SSOA and the rail 
fixed guideway public transportation systems the SSOA will oversee. 
This section of the NPRM simply reiterates the statutory requirements 
for designation and establishment of an SSOA now codified at 49 U.S.C. 
5329(e)(4)(A). Also, this section of the NPRM notes the Administrator's 
authority to waive the requirements for financial and legal 
independence and the prohibitions on employee conflict of interest in 
the instance of a State in which the rail fixed guideway public 
transportation systems have fewer than one million revenue miles per 
year combined, or provide fewer than ten million unlinked passenger 
trips per year, combined. The statutory authority for a waiver is 
codified at 49 U.S.C. 5329(e)(4)(B).
    Additionally, this section reiterates the reporting requirements 
for an SSOA now codified at 49 U.S.C. 5329(e)(4), including, notably, 
the requirements that an SSOA make annual reports on the status of the 
safety of the rail fixed guideway public transportation systems it 
oversees to both the Governor and the boards of directors of the rail 
transit systems.

Section 674.15 Designation of Oversight Agency for Multi-State System

    In a few instances across the United States, there are rail fixed 
guideway public transportation systems that operate in more than one 
State. This section of the NPRM identifies the same option for State 
Safety Oversight of such a multi-state system as now provided by 49 
U.S.C. 5329(e)(5): The States may choose either to apply uniform safety 
standards and procedures to the rail transit system through a State 
Safety Oversight Program compliant with 49 U.S.C. 5329 and approved by 
the Administrator, or to designate a single entity that meets the 
requirements for an SSOA to serve as the SSOA for that rail transit 
system, through a program approved by the Administrator.

Section 674.17 Use of Federal Financial Assistance

    This section explains that Federal financial assistance is now 
available to States to develop and carry out State Safety Oversight 
Programs (SSOPs), and may be used, specifically, for both the 
operational and administrative expenses of SSOPs and SSOAs and the 
expenses of employee training. Also, this section notes that the 
Federal financial assistance to a State will be allocated in accordance 
with a formula applicable to all eligible States; a grant of Federal 
funds will be subject to terms and conditions as the Administrator 
deems appropriate; the Federal share of eligible expenses under a grant 
will be eighty percent; and the non-Federal share of the expenses under 
a grant cannot be comprised of Federal funds, funds received from a 
public transportation agency, or any revenues earned by a public 
transportation agency.

Section 674.19 Certification of a State Safety Oversight Program

    One of the most important provisions of the MAP-21 framework for 
safety is the new mandate for an FTA certification of a State Safety 
Oversight Program (SSOP); specifically, the mandate that the 
Administrator make a determination not only whether an SSOP meets the 
technical requirements of the statute, but whether that same SSOP ``is 
adequate to promote the purposes'' of the National Public 
Transportation Safety Plan and the other goals and objectives of 49 
U.S.C. 5329(e)(7)(A) (emphasis added). The Congress recognizes that the 
weaknesses of the State Safety Oversight Agencies (SSOAs) cannot be 
addressed by the SSOAs, themselves. Consequently, Congress is obliging 
the States to either provide the current SSOAs with stronger authority 
and more resources to conduct the necessary oversight of rail fixed 
guideway public transportation systems, or to establish and nurture new 
organizations for that purpose. Further, Congress is obliging the FTA 
Administrator to determine whether each and every State has an adequate 
program through the mechanism of issuing or denying the issuance of a 
certification that the program is adequate to meet both the letter and 
the purposes of the law.
    This section of the NPRM fleshes out the requirements and the 
process for certification of a State's SSOP. Specifically, proposed 
section 674.17(a)

[[Page 11009]]

states that the Administrator must determine whether an SSOP meets the 
requirements of the statute and is adequate to promote the purposes of 
49 U.S.C. 5329, including, but not limited to, the National Public 
Transportation Safety Plan, the Public Transportation Safety 
Certification Training Program, and the Public Transportation Agency 
Safety Plans (referenced as the ``Transit Agency Safety Plans'' in this 
rulemaking). Proposed section 674.17(b) recites the statutory mandate 
that the Administrator must issue either a certification or a denial of 
certification for each State's SSOP. Proposed section 674.17(c) states 
that in the event the Administrator issues a denial of a certification, 
he or she must provide the State a written explanation and an 
opportunity to modify its SSOP to merit the issuance of certification, 
and ask the Governor to take all possible steps to correct the 
deficiencies that are precluding the issuance of a certification.
    Proposed section 674.17(c) states that in his or her discretion, 
the Administrator may impose financial penalties as authorized by 
Congress at 49 U.S.C. 5329(e)(7)(D). In brief, the statute provides the 
Administrator three options in imposing a financial penalty: (1) The 
Administrator can withhold SSO grant funds from the State; (2) The 
Administrator can withhold not more than five percent of the 49 U.S.C. 
5307 Urbanized Area formula funds appropriated for use in the State or 
urbanized area in the State, until such time as the SSOP can be 
certified; or (3) The Administrator can require all of the rail fixed 
guideway public transportation systems governed by the SSOP to spend up 
to 100 percent of their Federal funding under 49 U.S.C. Chapter 53 for 
``safety-related improvements'' on their systems, only, until such time 
as the SSOP can be certified. See, 49 U.S.C. 5329(e)(7)(D)(ii)(I)-
(III).
    Additionally, proposed section 674.17(d) states that in deciding 
whether to issue a certification for a State's SSOP, the Administrator 
will evaluate whether the SSOA has sufficient authority, resources, and 
expertise to oversee the number, size, and complexity of the rail 
transit systems that operate within the State, or will attain the 
necessary authority, resources, and expertise in accordance with a 
developmental plan and schedule set forth in a sufficient level of 
detail in the State's SSOP.

Section 674.21 Withholding of Federal Financial Assistance for 
Noncompliance

    Proposed section 674.21(a) explains that in those instances in 
which the Administrator has discretion to impose financial penalties 
for noncompliance with the SSO requirements, in making a decision 
whether to do so, and determining the nature and amount of a financial 
penalty, the Administrator must consider the extent and circumstances 
of the noncompliance, the operating budgets of both the SSOA and the 
rail transit systems that will be affected by the penalty, and such 
other matters as justice may require.
    There is one instance, however, in which the Administrator will be 
unable to exercise any discretion to mitigate a very harsh financial 
penalty for noncompliance with the SSO requirements. If a State fails 
to establish a State Safety Oversight Program approved by the 
Administrator within three years of the effective date of the final 
rule that will follow today's NPRM, FTA will be prohibited by law from 
obligating any Federal financial assistance to any entity in that State 
that is otherwise eligible to receive funding through any of the FTA 
programs authorized by 49 U.S.C. Chapter 53. See, 49 U.S.C. 5329(e)(3). 
In other words: If for whatever reason, a State is unable or unwilling 
to come into compliance with a final rule for State Safety Oversight 
within three years after that final rule takes effect, all FTA grant 
funds for all of the public transportation agencies, designated 
recipients, subrecipients, and Metropolitan Planning Organizations in 
that State will be cut off. The statute is designed to provide every 
incentive to a State to develop and carry out an SSO program compliant 
with the regulations. Proposed section 674.21(b) reflects the 
congressional mandate of 49 U.S.C. 5329(e)(3).

Section 674.23 Confidentiality of Information

    When FTA first promulgated a rule for State Safety Oversight, the 
agency recognized that rail transit systems often face litigation 
arising from accidents, and that the release of accident investigation 
reports can compromise both the defense of litigation and the abilities 
of rail transit systems to obtain comprehensive, confidential analyses 
of accidents. See, the preamble to the 1995 rule at 60 FR 67034, 67042 
(Dec. 27, 1995). Thus, the current rule at 49 CFR 659.11 provides 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. . . .'' Also, the 
current rule makes clear that the Federal regulations at 49 CFR part 
659 do not require a rail transit system to make a security plan 
available to the public, or any security procedures referenced in that 
plan. See, 49 CFR 659.11(b). Thus, as a practical matter, any questions 
whether to admit investigation reports into evidence for litigation are 
left to the courts to determine, in accordance with the relevant State 
law and the courts' rules of evidence.
    Today's proposed rulemaking would clarify, and slightly expand, the 
current rule, by specifying that a ``State, State Safety Oversight 
Agency, or a rail fixed guideway public transportation system may 
withhold an investigation report prepared or adopted in accordance with 
the Federal regulations for State Safety Oversight from being admitted 
as evidence or used in a civil action for damages resulting from a 
matter mentioned in the report.'' See, proposed section 674.21(a). 
Also, the proposed rule would clarify, and slightly expand, the current 
rule, by specifying that FTA's SSO regulations would ``not require 
public availability of any data, information, or procedures pertaining 
to the security of a rail fixed guideway public transportation system 
or its passenger operations.'' See, proposed section 674.21(b).

Section 674.25 Role of the State Safety Oversight Agency

    Ever since 1995, when FTA issued the current SSO regulations at 49 
CFR part 659, the SSOA has been required to set minimum standards for 
the safety of all rail fixed guideway public transportation agencies 
within their oversight. Today's proposed rulemaking would continue that 
requirement. See, proposed section 674.25(a). Under today's NPRM, 
however, those minimum standards must be consistent with the National 
Public Transportation Safety Plan (the ``National Plan''), the Public 
Transportation Safety Certification Training Program (the ``Safety 
Certification Training'' program), and the principles and methods of 
Safety Management Systems (SMS), all of which will be the subject of 
future rulemakings separate from today's NPRM. What this may mean, as a 
practical matter, is that any number of SSOAs may have to revise and 
reissue their minimum standards for safety of rail fixed guideway 
public transportation once FTA issues final rules for the National 
Plan, the Safety Certification program, and the Transit Agency Safety 
Plan, to ensure that their minimum standards are consistent with

[[Page 11010]]

FTA regulations. As noted above, FTA issued an ANPRM for the National 
Plan, the Transit Agency Safety Plans, and the Safety Certification 
Training program on October 3, 2013, at 78 FR 61251-73. Also, in 
today's Federal Register FTA is issuing final interim provisions for 
the Safety Certification Training program. FTA encourages all SSOAs and 
interested persons to participate in the rulemakings.
    Proposed section 674.25(b) notes that basic principles and methods 
of SMS are set forth in an Appendix to the rules, titled the ``Safety 
Management Systems (SMS) Framework.''
    Proposed section 674.25(c) would require an SSOA to review and 
approve the Transit Agency Safety Plan, oversee the execution of that 
plan, and enforce the execution of that plan through the order of a 
corrective action plan or any other means, as necessary or appropriate. 
Proposed sections 674.25(d) and 674.25(e) recognize that an SSOA has 
primary responsibility for investigating the hazards, risks, and 
accidents on a rail transit system, and any alleged noncompliance with 
a Transit Agency Safety Plan, but these responsibilities do not 
preclude the Federal Transit Administrator from exercising his or her 
independent authority to investigate hazards, risks, or accidents.
    Proposed section 674.25(f) would allow an SSOA to retain the 
services of a contractor for assistance in investigating accidents and 
incidents and for expertise the SSOA does not have within its own 
organization. Proposed section 674.25(g) makes clear that all personnel 
and contractors employed by an SSOA must comply with the requirements 
of the Safety Certification Training program--either the interim 
provisions for the program or the final rule, once the final rule is 
issued.

Section 674.27 State Safety Program Standards

    Under 49 CFR 659.15--the rule in place since 1995--the SSOAs have 
been required to develop a nine-part State safety program standard 
comprised of requirements for program management, standards 
development, oversight of the internal safety and security reviews by 
rail transit systems, the frequency of those reviews, accident 
notification requirements, investigation procedures, corrective 
actions, the 21-point ``system safety program plan'' for rail transit 
systems, and the ``system security plan'' for rail transit systems. The 
current rule sets a regimen that is reactive, highly prescriptive, and 
mechanistic; today's proposed rulemaking will be proactive, emphasizing 
the avoidance and mitigation of hazards and risks.
    Today's NPRM transforms the list-specific, mechanistic approach to 
State safety program standards into one based on the more flexible, 
effective principles and methods of SMS. The SMS approach to State 
safety program standards at proposed section 674.27 addresses many of 
the same elements as are called out in the current SSO rule; it does 
so, however, in ways that are more comprehensive for preventing 
accidents, afford more latitude to the SSOAs, and can be scaled to the 
number, size, and complexity of the rail fixed guideway public 
transportation systems within the oversight of an SSOA. First, proposed 
section 674.27(a) obliges an SSOA to adopt and distribute a program 
standard that is consistent with the National Safety Plan, SMS, and the 
relevant State Safety Oversight Program. Next, proposed section 
674.27(a) obliges an SSOA to identify the processes and procedures that 
will govern its own activities. Next, proposed section 674.27(a) 
obliges an SSOA to identify the processes and procedures a Rail Transit 
Agency must have in place to comply with the SSO's program standard. 
Finally, proposed section 674.27(a) sets explicit but minimum, flexible 
standards for program management, standards development, oversight of a 
Rail Transit Agency's internal safety reviews, triennial audits of 
Transit Agency Safety Plans, accident notification, investigations, and 
corrective actions.
    Readers should note in particular the proposed requirements for an 
explanation of an SSOA's authority; the steps an SSOA must take to 
ensure ``open, on-going communication'' with the rail transit systems 
within its oversight; the process whereby an SSOA will evaluate the 
material submitted under the signatures of a Rail Transit Agency's 
accountable executives; the procedures an SSOA and a Rail Transit 
Agency will follow to manage findings and recommendations arising from 
a triennial audit; the coordination of an SSOA investigation with a 
Rail Transit Agency's own internal investigation; the role of an SSOA 
in supporting any investigation or findings made by the NTSB; and the 
procedures and SSOA and a Rail Transit Agency will follow to manage any 
conflicts over the contents or execution of a corrective action plan. 
See, proposed subsections 674.27(a)(1)-(7).
    Also, readers should please note the new FTA responsibility for 
reviewing the effectiveness of State safety program standards. Under 
proposed section 674.27(b), FTA will evaluate an SSOA's program 
standard as part of its continuous evaluation of every State Safety 
Oversight Program (SSOP), and in preparing FTA's annual report to 
Congress on the certification status of every SSOP, both of which are 
required by 49 U.S.C. 5329(e)(8). FTA will certify each compliant SSOA 
within the first three years following publication of the final rule, 
and will monitor compliance annually thereafter.

Section 674.29 Transit Agency Safety Plans: General Requirements

    One of the most significant changes in State Safety Oversight under 
today's proposed rulemaking is the transition from the simple review-
and-approval of the ``system safety program plan'' for a rail fixed 
guideway public transportation system, now codified at 49 CFR 659.17, 
to the more hands-on, proactive role for an SSOA in evaluating the 
effectiveness of a Transit Agency Safety Plan in proposed section 
674.29. To reiterate, ``Transit Agency Safety Plan'' is a shorthand 
reference to the new Public Transportation Agency Safety Plan now 
required of all operators of public transportation--not just rail 
transit systems--in accordance with 49 U.S.C. 5329(d). Although this is 
the subject of a rulemaking separate from today's proposal, Section 
5329(d) sets forth seven explicit, minimum standards for a Transit 
Agency Safety Plan. (See, for example, the standards for identifying 
and evaluating safety risks, strategies to minimize exposure to 
hazards, performance targets, assignment of an ``adequately trained 
safety officer'' reporting directly to the chief executive, and the 
``comprehensive staff training program,'' codified at 49 U.S.C. 
5329(d)(1)). Today's proposed rulemaking makes the SSOA responsible for 
helping ensure that the Transit Agency Safety Plan for a rail transit 
system--the most complex type of public transportation system--is 
sufficient to protect both the public and the Rail Transit Agency's 
employees.
    Specifically, under proposed section 674.29(a), an SSOA must 
evaluate whether a Transit Agency Safety Plan is based on an adequate 
Safety Management System (SMS), is consistent with the National Safety 
Plan, and is in compliance with the seven minimum standards set by the 
statute. Under proposed section 674.29(b), an SSOA must make a number 
of judgments in determining whether the Transit Agency Safety Plan is 
based on an adequate SMS: Most notably, the judgments whether a Transit 
Agency Safety Plan sets forth a sufficiently explicit safety policy for 
the rail transit system, and whether the plan

[[Page 11011]]

identifies adequate means for risk control, safety assurance, and 
promotion of safety to support the execution of the Transit Agency 
Safety Plan throughout the rail fixed guideway public transportation 
system--by all employees and agents of the system, and its contractors. 
Under proposed section 674.29(c), in any instance in which an SSOA does 
not approve a Transit Agency Safety Plan, the SSOA must provide the 
Rail Transit Agency a written explanation, and the Rail Transit Agency 
an opportunity to modify and resubmit its plan for the SSOA's approval.
    In short, under proposed section 674.29, the SSOA becomes a 
vigorous, diligent, ``institutional check'' on whether a Transit Agency 
Safety Plan for a rail transit system is adequate to avoid or mitigate 
hazards and risks to everyone who uses, manages, or maintains that 
system. This is a much more assertive role for an SSOA than has been 
the case under the regulations in place since 1995.

Section 674.31 Triennial Audits: General Requirements

    Under the current regulations, an SSOA conducts an ``on-site 
review'' of the ``system safety program plan'' for a rail fixed 
guideway public transportation system at least once every three years. 
See, 49 CFR 659.29. As a practical matter, this sort of review has 
amounted to little more than a checklist procedure, and the 
superficiality of the on-site review was a specific point of criticism 
by the National Transportation Safety Board following the rapid and 
light rail accidents in 2009, referenced above.
    Under today's NPRM, the three-year on-site review would be 
transformed into a more searching analysis of the safety of a rail 
transit system. Specifically, under proposed section 674.31, an SSOA 
will conduct a complete audit of a Rail Transit Agency's compliance 
with its Transit Agency Safety Plan at least once every three years, or 
on an on-going basis over a three-year timeframe, if the Rail Transit 
Agency concurs. At the conclusion of the three-year audit cycle an SSOA 
will issue a report with findings and recommendations that include, at 
minimum, an analysis of the effectiveness of the Transit Agency Safety 
Plan, recommendations for improvements, and a corrective action plan, 
if necessary or appropriate. The Rail Transit Agency must be given an 
opportunity to comment on the findings and recommendations arising from 
the audit. Optimally, an SSOA audit, per se, will be a more 
independent, effective means of testing the value of a Transit Agency 
Safety Plan and the steps a Rail Transit Agency has taken to carry out 
that plan over a three-year cycle.

Section 674.33 Accident and Incident Notification

    Proposed section 674.33 differs very little from the two-hour 
notification requirement for certain types of accidents in the current 
rule at 49 CFR 659.33, with two exceptions. The first exception is the 
addition of the term ``Incident.'' The second exception is the 
additional requirement that FTA be notified of an Accident or Incident 
together with the SSOA.
    FTA is proposing to require two-hour notification for either an 
``Accident'' or ``Incident.'' In proposed section 674.7, ``Incident'' 
is characterized as a near miss, close call, a violation of a safety 
standard that poses a hazard to a rail fixed guideway public 
transportation system, or equipment or property damage in an amount 
less than $25,000 that effects transit operations. Experience teaches 
that a near miss or close call may be as much or more important for 
detecting hazards and mitigating risk as an accident that results in 
personal injury or property damage. And logically, a violation of a 
safety standard calls for notification, regardless whether the 
violation led to personal injury or property damage.
    To enhance FTA's own situational awareness, a Rail Transit Agency 
must notify FTA of any accident or incident at the same time a Rail 
Transit Agency notifies the SSOA. In recent years FTA has benefitted 
from the electronic notification process a number of rail transit 
systems are using to inform multiple parties of accidents, similar to 
the telephonic notifications that railroads subject to 49 CFR part 225 
provide to the Federal Railroad Administration via the National 
Response Center. Insofar as the rail fixed guideway public 
transportation systems already use an electronic notification system, 
FTA asks that it be added to their automated lists of addressees, which 
would require minimal effort.

Section 674.35 Investigations

    In the deliberations leading to the enactment of MAP-21, the 
congressional authorization committees took a fresh look at whether 
investigation and enforcement authority for safety in rail fixed 
guideway public transportation should be vested in FTA or retained by 
the States. Ultimately, the Congress decided that FTA and the States, 
through their SSOAs, will have concurrent authority to investigate any 
incident involving the safety of a rail transit vehicle or taking place 
on the property of a rail transit system, while the SSOAs retain the 
role of primary oversight for the safety of rail fixed guideway public 
transportation. See, 49 U.S.C. 5329(e)(4)(A)(v), 5329(f)(1). 
Consequently, under today's proposed rulemaking, FTA will continue to 
defer to the SSOAs to conduct initial inspections and investigations. 
Should an SSOA request FTA's assistance, however, or should the 
Administrator determine that an SSOA lacks the ability to conduct an 
investigation as necessary or appropriate, FTA may initiate an 
investigation.
    Under the current regulations, an SSOA may request a rail transit 
system to conduct an investigation on behalf of the SSOA. See, 49 CFR 
659.35(a), (c). In some instances, it may benefit a rail transit system 
to investigate an accident occurring on its property, but in FTA's 
view, that practice can trigger a conflict of interest, particularly 
where a rail transit system has an ability to influence an 
apportionment of fault and liability. Given that 49 U.S.C. 5329 now 
provides SSOAs with resources to conduct their own investigations, and 
requires professional training and certification of their employees to 
investigate accidents, proposed section 674.35(a) would require an SSOA 
to conduct an ``independent investigation'' of any accident or incident 
that a Rail Transit Agency reports to the SSOA in compliance with 
proposed section 674.33(a). Further, proposed section 674.35(c) would 
require all personnel and contractors conducting investigations for an 
SSOA to be trained to conduct investigations in accordance with the 
Safety Certification Training program. Obviously, a Rail Transit Agency 
would not be prohibited from conducting its own internal investigation 
of an accident. Rather, proposed section 674.35(a) states that in any 
instance in which both an SSOA and a Rail Transit Agency are conducting 
an investigation, they must coordinate their investigations with one 
another in accordance with the State safety oversight program standard 
required by proposed section 674.27.
    Under proposed section 674.35(b), an SSOA must issue a written 
report on an investigation that identifies the factors that caused or 
contributed to the accident or incident, describes the SSOA's 
investigation activities, and sets forth a corrective action plan, as 
necessary or appropriate. The SSOA must formally adopt an investigation 
report and transmit that report to the Rail Transit Agency for review 
and concurrence. If a Rail Transit Agency

[[Page 11012]]

does not concur in an SSOA's investigation report, the SSOA may allow 
the Rail Transit Agency to submit a written dissent from the report, 
and the SSOA may include the Rail Transit Agency's dissent in the 
report, if the SSOA so chooses.
    Also, readers should note that MAP-21 has vested the Federal 
Transit Administrator with broad authority to conduct investigations of 
public transportation systems--whether to ensure the continuing safety 
of a system, or in response to an accident or incident. See, 49 U.S.C. 
5329(f)(1) (as the Secretary's designee, the Administrator ``may . . . 
conduct inspections, investigations, audits, examinations, and testing 
of the equipment, facilities, rolling stock, and operations of [a] 
public transportation system . . .''). To facilitate the 
Administrator's authority to conduct investigations, he or she may make 
reports and issue directives, issue subpoenas, take depositions, 
require production of documents by either a public transportation 
system or an SSOA, and provide guidance to public transportation 
systems ``regarding prevention of accidents and incidents.'' See, 49 
U.S.C. 5329(f)(2)-(6). The FTA Office of Safety and Oversight will 
carry out the Administrator's authority to conduct investigations, with 
assistance from staff of the ten FTA Regional Offices.

Section 674.37 Corrective Action Plans

    It is most likely an SSOA will order a Rail Transit Agency to 
prepare and carry out a corrective action plan as the result of an 
investigation of an accident or hazard, an internal safety audit, or an 
SSOA's triennial audit of a Transit Agency Safety Plan. Although it is 
not possible to know what potential corrective action plans may call 
for, under proposed section 674.37(a), in any instance in which a Rail 
Transit Agency is ordered to develop and carry out a corrective action 
plan, the SSOA must review and approve that plan before the Rail 
Transit Agency carries out the plan. A corrective action plan must 
specify the actions a Rail Transit Agency will take to avoid or 
mitigate the risks and hazards that led to the plan, the schedule for 
taking the corrective actions, and the persons who will take the 
corrective actions. The Rail Transit Agency will periodically report 
its progress in carrying out the corrective action plan, and the SSOA 
may monitor the Rail Transit Agency's progress through unannounced, on-
site inspections, or any other means the SSOA deems necessary or 
appropriate. Also, in any instance in which the National Transportation 
Safety Board (NTSB) has conducted an investigation, an SSOA must 
evaluate whether the NTSB's findings and recommendations call for a 
corrective action plan by the Rail Transit Agency, and if so, the SSOA 
must order the Rail Transit Agency to develop and carry out a 
corrective action plan.

Section 674.39 State Safety Oversight Agency Annual Reporting to FTA

    It is not FTA's objective to increase the reporting burdens on 
States, their SSOAs, or rail fixed guideway public transportation 
systems any more than absolutely necessary. Moreover, the current SSOA 
reporting requirements at 49 CFR 659.39 have worked well for the 
limited authority and responsibilities given to the SSOAs under the 
State Safety Oversight program in place for the past twenty years. As 
further described in the Paperwork Reduction Act section of this 
notice, below, the Office of Management and Budget (OMB) extended the 
approval for FTA to collect information from SSOAs as required by 49 
U.S.C. 5330 and the rules at 49 CFR part 659.
    Today's rulemaking proposes to keep the basic structure of the 
current 49 CFR 659.39 insofar as the data and information SSOAs must 
report to FTA on an annual basis, with a few additions and revisions, 
as follows. First, under proposed subsection 674.39(a)(2), an SSOA 
would be obliged to submit evidence once a year that each of its 
employees and contractors are in compliance with the applicable Safety 
Training Certification requirements. Second, under proposed subsection 
674.39(a)(4), an SSOA would be obliged to submit a summary of the 
triennial audits completed during the preceding year, and the Rail 
Transit Agencies' progress in carrying out any corrective action plans 
arising from those audits. Third, under proposed subsection 
674.39(a)(5), an SSOA would be obliged to submit evidence of its review 
and approval of any changes to Transit Agency Safety Plans during the 
preceding year.

Section 674.41 Conflicts of Interest

    Proposed section 674.41(a) incorporates a fundamental change 
enacted by MAP-21: An SSOA must now be both financially and legally 
independent from any rail fixed guideway public transportation system 
under the oversight of the SSOA. See, 49 U.S.C. 5329(e)(4)(A)(i). The 
only exception to this requirement would be an instance in which the 
Administrator has issued a waiver based on the relatively small annual 
fixed guideway revenue mileage in a State (less than one million actual 
and projected revenue miles, in total), or the relatively small number 
of unlinked passenger trips carried by all the rail transit systems in 
a State, on an annual basis (fewer than ten million actual and 
projected unlinked passenger trips, in total). See, 49 U.S.C. 
5329(e)(4)(B).
    Proposed section 674.41(b) would change the current rule, 49 CFR 
659.41, to make it clear that an SSOA may not employ any individual who 
provides services to a rail fixed guideway public transportation system 
under the oversight of the SSOA. Also, the proposed rule would delete 
the reference in the current rule to state law determinations of 
conflict of interest. Again, however, the Administrator could issue a 
waiver from this requirement on the basis of the relatively small 
annual fixed guideway revenue mileage (less than one million miles) in 
a State or the relatively small number of unlinked passenger trips per 
year (less than 10 million unlinked trips) in a State, using the same 
thresholds as specified in proposed section 674.41(a).
    Finally, proposed section 674.41(c) would make it clear that a 
contractor may not provide its services to both an SSOA and a rail 
transit system under the oversight of that SSOA. There is no waiver 
available with respect to this particular requirement.

Appendix: Safety Management Systems (SMS) Framework

    For a basic understanding of SMS, readers should please consult the 
Appendix that immediately follows the text of the proposed rules: The 
document titled ``Safety Management Systems (SMS) Framework.'' This 
document describes at some length each of the four key components of a 
viable SMS for any transportation provider: (1) The Safety Management 
Policy for an organization, (2) an organization's Risk Management 
practices, (3) the means for Safety Assurance throughout an 
organization, and (4) the practices for Safety Promotion within an 
organization, through training, education, and communication. This 
document explains that SMS is both flexible and scalable to the size of 
an organization and its operating environment. This document addresses 
the role of the Accountable Executive--the leader at the top of an 
organization who is ultimately responsible for safety--and the roles of 
a chief safety officer, an executive leadership team, employees who 
specialize in operations, maintenance, and asset management, employees 
with front-line

[[Page 11013]]

responsibilities for safety, and an organization's board of directors. 
Also, this document speaks to discrete activities such as hazard 
identification and analysis, risk assessment and mitigation, change 
management, continuous improvement, and the integration of an 
organization's SMS with its public safety and emergency preparedness.
    This Appendix is a guidance document. Unlike the final rules that 
will follow the public notice and comment on the proposed rules in this 
NPRM, this Appendix will not have the force of law. FTA is publishing 
the Safety Management Systems (SMS) Framework in this Appendix to 
provide practical advice both to the rail fixed guideway public 
transportation systems that will develop and integrate SMS into their 
operations and managerial structures, and the States and SSOAs that 
will oversee the rail transit systems' practice of SMS. FTA does not 
intend to set substantive standards for SMS through today's proposed 
rulemaking for State Safety Oversight. Rather, FTA intends to propose 
substantive standards for SMS in the upcoming Notices of Proposed 
Rulemaking for the National Public Transportation Safety Plan and the 
Transit Agency Safety Plans. Nonetheless, FTA invites readers to 
comment on the material set forth in this Appendix, together with your 
comments on the rules proposed in this NPRM. Indeed, FTA expects to 
revise this Appendix from time to time, in the years ahead, as the 
practice of SMS matures throughout the transit industry.

Additional Matters of Interest in the Proposed Rules

    Security. Persons versed in the current State Safety Oversight 
program will notice that today's proposed rulemaking omits any mention 
of system security plans and internal security reviews for rail fixed 
guideway public transportation systems. In short, the 49 CFR part 659 
regulations, issued in 1995, preceded the terrorist attacks of 
September 11, 2001, and the creation of the Transportation Security 
Administration (TSA), an agency of the United States Department of 
Homeland Security (DHS), which now has lead responsibility for the 
Federal Government's activities in the area of security in public 
transportation. This lead responsibility for TSA is set forth in the 
Memorandum of Agreement (MOA) between DHS and DOT executed in September 
2004 and the Annex to that MOA executed by TSA and FTA in September 
2005. Further, under Sections 1405 and 1512 of the Implementing 
Recommendations of the 9/11 Commission Act of 2007 (Pub. L. 110-53; 
Aug. 3, 2007) (``9/11 Commission Act''), TSA is given the authority to 
issue regulations that will require public transportation agencies to 
develop and carry out security plans. Under Section 1404 of the 9/11 
Commission Act, DHS is carrying out a national strategy for public 
transportation security with guidelines that minimize security threats 
and maximize the ability of public transportation agencies to mitigate 
damage from terrorist attack and other major incidents. Also, TSA has 
issued rules that apply to rail transit systems insofar as TSA 
inspection authority, appointment of rail security coordinators, and 
reporting significant concerns to TSA. See, 49 CFR 1508.5, 1508.201, 
and 1508.203.
    In omitting any mention of rail transit system security plans and 
reviews, the rules FTA is proposing for State Safety Oversight in this 
NPRM would not prohibit rail transit systems from continuing to improve 
their practices to prevent and mitigate the threats to the security of 
their systems. To the contrary, rail transit systems are encouraged to 
do so--and strictly in accordance with the rules and guidelines TSA has 
issued and will issue in the future. Both FTA and TSA recognize, 
moreover, that some of the steps a public transportation agency takes 
to protect public and employee safety are often one and the same as 
those it takes to protect its transit system from a terrorist attack; 
for example, the steps an agency takes as part of a threat and 
vulnerability assessment. FTA and TSA work to ensure that the transit 
industry is not confronted with inconsistent government-issued security 
requirements or guidance.
    Plain English. For purposes of plain English, and compliance with 
the Plain Writing Act of 2010 (Pub. L. 111-274; Oct. 13, 2010), FTA has 
made every effort to keep the text of the rules in this NPRM short, 
simple, and clear. Admittedly, the current regulation at 49 CFR part 
659 is lengthy, and less than a model of clarity, thus, FTA seeks to 
move in the opposite direction. A certain level of detail may be 
sacrificed in this rulemaking, but FTA would prefer to put a rule in 
place that is easier to understand and to work with.
    Annual Certifications of Compliance. Readers should please note 
that the requirement that an SSOA annually submit a certification of 
its compliance with the rules, codified at 49 CFR 659.43, is being 
moved to proposed subsection 674.39(a)(6) with the other requirements 
for annual reporting.

Estimated Costs and Benefits

Existing 49 CFR Part 659 Program Requirements and Activities

    As stated in the Background section above, this NPRM replaces a set 
of regulations that have been in place since December 27, 1995, 
codified at 49 CFR part 659. As such, this NPRM applies to a discrete 
subsection of the public transportation industry--the recipients of 
Federal funds under 49 U.S.C. chapter 53 that operate rail fixed 
guideway transit systems not subject to the jurisdiction of the Federal 
Railroad Administration; the States in which those rail systems lie; 
and the SSOAs required to oversee the safety of those rail systems.
    Through the implementation of 49 CFR part 659, the States, SSOAs 
and rail transit agencies affected by 49 U.S.C. 5329(e) already engage 
in core activities that address many of this NPRM's proposed 
requirements. In practical terms, many of the changes required in this 
NPRM serve to increase the frequency and/or comprehensiveness of 
activities that are already performed, such as reviews, inspections, 
field observations, investigations, safety studies, data analysis 
activities, and hazard management.

Costs to States of Implementing 49 CFR Part 659, CY 2011-2013

    Pursuant to 49 CFR part 659, FTA collects annual information from 
the SSOAs regarding the hours they expend to implement SSO requirements 
for the rail transit agencies in their jurisdictions. Based on this 
information, when totals are averaged for the last three reporting 
years (CY 2011-CY 2013), FTA has determined that the 28 covered SSOAs 
expend approximately 115,396 total hours per year implementing part 659 
requirements. While these hours average out to roughly 4,120 per State 
per year, there is wide variation across the States in terms of the 
total level of effort devoted to compliance with part 659. Some States, 
such as California, oversee multiple rail transit systems with two or 
more full-time equivalents (FTEs) devoted to each system. Most States 
covered by part 659, however, have one (1) rail fixed guideway system 
and devote between .5 and 1 FTEs per year to implementing 49 CFR part 
659 requirements for that system, supplemented by contractor resources 
for major activities, such as the Three-Year Review and accident 
investigation.
    The table below illustrates the break-down of activities and labor 
hours currently expended to implement 49 CFR part 659 by the States and 
SSOAs.

[[Page 11014]]

Using the 2013 Bureau of Labor Statistics (BLS) average wage rate of 
$42.70 per hour for State and local government operations managers, 
this level of effort equates to an annual cost of approximately $5 
million for States and SSOAs to implement 49 CFR part 659 requirements 
nationwide.
    The table also identifies one-time, non-recurring activities with 
an asterisk (*). These activities, such as establishing standards and 
procedures, are performed initially to establish the SSO program 
standard for a State new to implementing part 659. By including these 
non-recurring costs, FTA's table reflects the reality that new States 
and rail transit agencies are joining the SSO program each year. In 
fact, since January 1, 1997, when the December 27, 1995 rule 
implementing 49 CFR part 659 went into effect, the SSO program has 
grown by 40 percent, increasing from 19 SSOAs and 32 rail transit 
agencies to 28 SSOAs and 48 rail transit agencies.

------------------------------------------------------------------------
 Annual state activity to implement 49     Total labor     Total labor
       CFR part 659 requirements              hours           costs
------------------------------------------------------------------------
Develop and adopt program standard *...           1,400       $59,780.00
Develop and adopt program procedures *.           1,400        59,780.00
Review and update program standard and            2,912       124,342.40
 procedures............................
Review and approve rail transit agency            3,840       163,968.00
 SSPP..................................
Review and approve rail transit agency            3,840       163,968.00
 system security plan..................
Travel.................................           5,376       229,555.20
Review and approve rail transit agency            3,072       131,174.40
 procedures............................
Review and approve SSPP modifications             3,072       131,174.40
 and updates...........................
Review and approve system security plan           3,072       131,174.40
 modifications and updates.............
Perform three-year review of rail                 9,216       393,523.20
 transit agency........................
Training...............................           3,840       163,968.00
Review and approve internal safety                4,224       180,364.80
 review report.........................
Review and approve internal security              4,224       180,364.80
 review report.........................
Prepare three-year safety and security           13,440       573,888.00
 review report.........................
Prepare accident investigation report..           5,376       229,555.20
Review and approve rail transit agency            6,144       262,348.80
 accident investigation reports........
Review, approve and track corrective             15,360       655,872.00
 action plans..........................
Monitor rail transit agency adherence            19,200       819,840.00
 to hazard management process..........
Designation Submission *...............              30         1,281.00
Initial Submission *...................           2,270        96,929.00
Annual Submission......................           3,528       150,645.60
Periodic Submission....................             560        23,912.00
                                        --------------------------------
    Total including non-recurring costs         115,396     4,927,409.20
------------------------------------------------------------------------
* Non-recurring cost.

Costs to Rail Transit Agencies of Implementing 49 CFR Part 659, CY 
2011-2013

    Based on information collected from the SSO agencies in annual 
reports and previous assessments conducted by the Government 
Accountability Office and the National Transportation Safety Board, FTA 
has also established the level of effort required to implement 49 CFR 
part 659 requirements for the 48 rail transit agencies covered by the 
regulation. Based on this data, FTA has determined that each year, rail 
transit agencies expend approximately 237,000 hours implementing 49 CFR 
part 659 requirements.
    While these hours average out to approximately 5,000 per rail 
transit agency per year, there is variation in the rail transit 
industry based on the size of rail fixed guideway systems. The nation's 
five (5) largest rail transit agencies each employ between 6 and 15 
full-time equivalents who work exclusively on 49 CFR part 659 
activities. Most of the remaining rail transit agencies devote between 
.5 and 2 FTEs to implement 49 CFR part 659 activities. Major activities 
performed by the rail transit agencies to implement 49 CFR part 659 
include developing safety and security plans and procedures; conducting 
internal reviews and audits to assess the implementation of safety and 
security plans; conducting accident and incident investigations; 
identifying, assessing and resolving hazards and their consequences; 
managing safety data acquisition and analysis; coordinating with 
emergency response planning; and communicating with/responding to the 
SSO agency through reports, meetings, teleconferences, emails, 
training, submittals and support for field observations and reviews.
    Also using the 2013 Bureau of Labor Statistics average wage rate of 
$42.70 per hour for State and local government operations managers, FTA 
has determined that the rail transit industry spends about $10 million 
per year to implement the 49 CFR part 659 requirements nationwide. 
FTA's table below reflects non-recurring costs required for new rail 
transit agencies covered by part 659, and for existing rail transit 
agencies to address new extensions and capital projects, once they 
become operational, as averaged over the last three years.

------------------------------------------------------------------------
 Annual rail transit agency activity to    Total labor     Total labor
 implement 49 CFR part 659 requirements       hours           costs
------------------------------------------------------------------------
Develop system safety program plan *...           6,272      $267,814.40
Review and update system safety program           7,550       322,385.00
 plan..................................
Develop system security plan *.........           4,036       172,337.20
Review and update system security plan.           6,208       265,081.60
Develop program procedures *...........           5,946       253,894.20
Review and update program procedures...           4,142       176,863.40
Travel.................................           4,146       177,034.20

[[Page 11015]]

 
Conduct internal safety and security             15,230       650,321.00
 reviews...............................
Prepare internal safety and security              8,160       348,432.00
 review reports........................
Prepare annual internal safety and               10,708       457,231.60
 security review report for state
 oversight.............................
Conduct accident investigations........          30,000     1,281,000.00
Prepare accident investigation reports.          19,168       818,473.60
Investigate unacceptable hazardous               14,030       599,081.00
 conditions............................
Prepare unacceptable hazardous                   12,032       513,766.40
 condition reports.....................
Implement hazard management process....          32,312     1,379,722.40
Prepare and submit corrective action             19,090       815,143.00
 plans.................................
Coordinate hazard management program             23,848     1,018,309.60
 activities with state oversight.......
Maintain safety data...................           3,570       152,439.00
Plan and conduct annual emergency                 3,382       144,411.40
 preparedness drill....................
Prepare and submit after-action report            1,090        46,543.00
 for annual emergency drill............
Maintain security data.................           3,570       152,439.00
Make submissions to state oversight               2,618       111,788.60
 agency................................
                                        --------------------------------
    Total including non-recurring costs         236,996    10,119,729.20
------------------------------------------------------------------------
* Non-recurring cost.

Limitations of the Resources Expended by States and Rail Transit 
Agencies

    Based on the assessment provided in the two tables above, 
collectively the States, the SSOAs and the rail transit agencies expend 
approximately 352,000 labor hours or $15 million to implement 49 CFR 
part 659 requirements each year. While this level of effort helps make 
the transit industry among the safest modes of surface transportation, 
it has not been sufficient to prevent major accidents with multiple 
fatalities from occurring. As discussed in the preamble to this NPRM, 
over the last decade, the rail transit industry remains vulnerable to 
catastrophic occurrences.
    Since 2004, the National Transportation Safety Board (NTSB) has 
investigated (or preliminarily investigated) 19 major rail transit 
accidents, and has issued 25 safety recommendations to FTA, including 
six (6) Urgent Recommendations. In conducting these investigations, the 
NTSB found a variety of probable causes for these accidents. Among 
them, equipment malfunctions; equipment in poor or marginal condition, 
including equipment that can pose particular risks to safety, such as 
signal systems; lack of vehicle crashworthiness; employee fatigue and 
fitness for duty issues; and employee error, such as inattentiveness or 
failure to follow a rail transit system's operating procedure. The NTSB 
also identified the lack of a strong safety culture and a lack of 
adequate oversight both by the rail transit systems' State Safety 
Oversight Agencies and FTA. Deficiencies in oversight--of the kind 
being addressed by this rulemaking--were specifically identified as a 
contributing factor for five of the 19 major accidents. As a result, 
the NTSB has made improving the operational safety of the rail transit 
industry one of its Top Ten Most Wanted Items in 2014.
    FTA has also observed that while other modes of surface 
transportation, such as highway and commercial motor carrier, freight 
railroad and commercial trucking have achieved significant improvements 
in safety performance over the last decade, the public transportation 
industry's safety performance has not improved. Over the last decade, 
the rail transit industry actually has experienced increases in several 
key categories, including the number and severity of collisions, the 
number of worker fatalities and injuries, and the number and severity 
of passenger injuries. In this respect, the public transportation 
industry, and the nation's rail transit agencies in particular, are 
outliers to the overall U.S. DOT modal safety experience.
    Perhaps coincidentally, FTA also notes that the current level of 
expenditure by the States and rail transit agencies on safety oversight 
activities falls considerably below one (1) percent of the roughly $4 
billion that FTA awards to rail transit agencies each year. A review of 
safety programs administered by other modal administrations, such as 
the Federal Railroad Administration (FRA), the Federal Highway 
Administration (FHWA), the Federal Motor Carrier Safety Administration 
(FMCSA), and the Federal Aviation Administration (FAA), demonstrates 
that at least one (1) percent of the Federal investment is typically 
devoted to safety oversight activities and programs in most other 
related modes of transportation. Other modes have determined that this 
level of investment in safety returns positive dividends in safety 
performance while also addressing tight budget margins in the 
transportation industry.
    Combined with a lack of resources devoted to safety oversight, FTA 
has observed that the operating, maintenance and service environments 
of the nation's rail transit agencies continue to change. Rail transit 
ridership is at an all-time high, while rail transit equipment and 
infrastructure is in a deteriorated condition. The heavier service 
cycles required to meet rising demand in some of the nation's largest 
urbanized areas create challenges for aging infrastructure with 
potential safety implications. FTA's Transit Asset Management (TAM) 
NPRM, authorized at 49 U.S.C. 5326, will attempt to address some of 
these challenges through the institution of formal asset management 
programs.
    In addition, this NPRM also implements an earlier decision made by 
the Federal Transit Administrator to adopt the framework and principles 
of Safety Management Systems (SMS). This decision was communicated in a 
May 13, 2013 Dear Colleague letter to the public transportation 
industry. FTA's adoption of SMS better positions the SSOAs and rail 
transit agencies to address the nexus between safety and state of good 
repair more effectively.

MAP-21 Requirements To Address Known Gaps in Oversight

    MAP-21 creates a new regulatory role for FTA and the States that 
responds to known gaps in oversight and safety performance. For 
example, to address noted FTA and NTSB concerns regarding conflicts of 
interest and the ability of SSO agencies to act independently in the 
interest of public safety, 49 U.S.C. 5329(e)(4)(i) specifies that each 
SSO agency must have financial and legal independence from each of the 
rail fixed guideway public

[[Page 11016]]

transportation systems in its jurisdiction.
    To address the need for an enhanced safety regulatory program, 49 
U.S.C. 5329(e)(2)(A-B) directs States to assume oversight 
responsibility for rail transit agencies in engineering and 
construction, as well as in revenue service. This requirement increases 
the number of States subject to the State Safety Oversight regulations 
from 28 to 30, and increases the number of rail transit agencies from 
48 to 60 nationwide.

MAP-21 SSO Grant Program--Costs to States

    The statutory changes to State Safety Oversight include a new grant 
program to assist with the costs of compliance. Federal financial 
assistance is now available to States to help them develop and carry 
out their State Safety Oversight Programs (SSOPs), and may be used, 
specifically, for up to eighty percent of both the operational and 
administrative expenses of SSOAs, including the expenses of employee 
training.
    On March 10, 2014, FTA announced its apportionment of $21,945,771 
in funding to eligible States for their SSOPs and SSOAs for Federal 
Fiscal Year 2013, and $22,293,250 for Federal Fiscal Year 2014. 46 FR 
13380. In addition, on February, 9, 2015, FTA announced the 
apportionment of $14,841,808 in funding to eligible States for SSOPs 
and SSOAs for Federal Fiscal Year 2015 through May 31, 2015. 80 FR 
7254. Thus, for purposes of cost-benefit analysis, this rulemaking is 
revenue neutral between the Federal government and the States, and this 
has been factored into the analysis.
    Specifically, in determining the additional costs that would be 
imposed through this rulemaking, we have factored the net transfer from 
FTA to the States and their SSOAs. The table below compares and 
contrasts the specific activities performed, the labor hours and the 
total costs expended under the existing 49 CFR part 659 requirements 
(as discussed above) with FTA's proposal for the MAP-21 program 
authorized at 49 U.S.C. 5329(e) and described in this NPRM. Readers 
should note that the 49 CFR part 659 labor hours and costs reflect 28 
SSOAs and 48 rail transit agencies, while the 49 U.S.C. 5329(e) labor 
hours and costs reflect 30 SSOAs and 60 rail transit agencies. As 
discussed above, new definitions in 49 U.S.C. 5329 expand State Safety 
Oversight requirements to include rail transit agencies in construction 
and engineering phases of development.
    Labor estimates for the activities in this NPRM were derived based 
on the hours required to complete them as reported by States already 
implementing the specific activities; the estimates and general 
discussion provided in the Senate report to the Public Transportation 
Safety Act of 2010 (S. 3638, 111th Congress); and the experience of 
FTA's legal, policy, grant making and safety team.
    This table shows a minimum four-fold increase in the level of 
oversight activity performed to implement the NPRM. In particular, as 
part of proposed section 674.27, SSOAs would be required to establish a 
new set of activities unique to the oversight of SMS in the rail 
transit industry. The 30 SSOAs would be required to identify their 
``accountable executive'' for the implementation of the SSO program, 
and determine their procedures and process for overseeing the effective 
functioning of each rail transit agency's SMS, including overseeing 
elements such as organizational accountability, safety climate and 
culture, committee structures, safety performance monitoring, safety 
audits and reviews, safety risk management, and, perhaps most 
importantly, the implementation and monitoring of safety risk 
mitigations. Through the MAP-21 SSO grant program, this additional 
oversight activity will be funded at no additional cost to the States. 
FTA welcomes comments and observations regarding the hours reported for 
the part 659 requirements and the estimates presented for the proposed 
activities in this NPRM.

----------------------------------------------------------------------------------------------------------------
                                                   49 CFR part
    State oversight agency activity in NPRM         659 labor      49 CFR part    Section 5329     Section 5329
                                                      hours      659 total cost    labor hours      total cost
----------------------------------------------------------------------------------------------------------------
Sec.   674.11 Develop State Safety Oversight
 Program:
    <bullet> Explicit Acknowledgement of State                0           $0.00           1,200       $51,240.00
     Responsibility to Oversee Safety of Rail
     Transit Agencies in Engineering,
     Construction and Operations *.............
    <bullet> Demonstrate Authority to Adopt and               0            0.00           1,200        51,240.00
     Enforce State and Federal Regulations *...
    <bullet> Demonstrate Adequate/Appropriate                 0            0.00           3,000       128,100.00
     Staffing Level *..........................
    <bullet> Demonstrate Qualification and                    0            0.00           3,000       128,100.00
     Certification of Staff *..................
    <bullet> Demonstrate by Law Prohibition                   0            0.00             600        25,620.00
     against Receiving Funding from Rail
     Transit Agency *..........................
Sec.   674.13 Designation of oversight agency:
    <bullet> Legal and Financial Independence                 0            0.00           2,400       102,480.00
     Procedures and Disclosures *..............
    <bullet> Annual Updates and Legal and                     0            0.00             600        25,620.00
     Financial Independence Disclosures........
    <bullet> Documentation of No Provision of                 0            0.00              60         2,562.00
     Transit Service...........................
    <bullet> Documentation of No Employment for               0            0.00              60         2,562.00
     Personnel Administering Rail Transit
     Programs..................................
    <bullet> Establish and Document Authority                 0            0.00          30,000     1,281,000.00
     to Review, Approve, Oversee, and Enforce
     Agency Safety Plan *......................
    <bullet> Establish and Document                           0            0.00          30,000     1,281,000.00
     Investigative and Enforcement Authority *.
Sec.   674.15 Designation of oversight agency                 0            0.00           3,000       128,100.00
 for multi-state system........................
Sec.   674.17 Use of Federal financial
 assistance
    <bullet> Identifying and Providing                        0            0.00           6,000       256,200.00
     Appropriate Match for Grant Program *.....
    <bullet> SSO Grant Management and Reporting               0            0.00           3,000       128,100.00
     Activities................................
Sec.   674.19 Certification of a State Safety
 Oversight Program:
    <bullet> Certification Pre-Submittal                      0            0.00           2,400       102,480.00
     Documentation to FTA......................
    <bullet> Work Plan and Quarterly Updates to               0            0.00           3,000       128,100.00
     FTA.......................................
    <bullet> Initial Certification                        2,860      122,122.00             300        12,810.00
     Documentation.............................
    <bullet> Final Certification Documentation.               0            0.00             600        25,620.00
    <bullet> Maintenance of Annual                            0            0.00             600        25,620.00
     Certification.............................
Sec.   674.21 Withholding of Federal financial                0            0.00               0             0.00
 assistance for noncompliance..................

[[Page 11017]]

 
Sec.   674.23 Confidentiality of information:
    <bullet> Develop and adopt procedures/                    0            0.00           3,000       128,100.00
     regulation to withhold an investigation
     report from being admitted as evidence or
     used in a civil action *..................
Sec.   674.25 Role of the State safety
 oversight agency
    <bullet> Establish minimum standards for                  0            0.00          30,000     1,281,000.00
     the safety of rail transit agencies *.....
    <bullet> Update minimum standards as needed               0            0.00           6,000       256,200.00
     or required...............................
    <bullet> Review and approve Agency Safety             3,840      163,968.00           9,600       409,920.00
     Plan (Sec.   674.29 Transit Agency Safety
     Plans: general requirements)..............
    <bullet> Review and Approve Supporting and            3,072      131,174.40           9,600       409,920.00
     Referenced Procedures.....................
    <bullet> Review and Approve Annual Updates            3,072      131,174.40           4,800       204,960.00
     to Agency Safety Plan and Supporting and/
     or Referenced Procedures..................
    <bullet> Oversee the Rail Transit Agency's            8,448      360,729.60          60,000     2,562,000.00
     execution of its Transit Agency Safety
     Plan......................................
    <bullet> Enforce the execution of a Transit               0            0.00           1,200        51,240.00
     Agency Safety Plan, through an order of a
     corrective action plan or any other means,
     as necessary or appropriate...............
    <bullet> Ensure that a Transit Agency                     0            0.00           1,200        51,240.00
     Safety Plan meets the requirements for
     Public Transportation Agency Safety Plans
     at 49 U.S.C. 5329(d) and the regulations
     that are or may be codified at 49 CFR Part
     673.......................................
    <bullet> Investigate any hazard or risk              19,200      819,840.00          60,000     2,562,000.00
     that threatens the safety of a Rail
     Transit Agency............................
    <bullet> Investigate any allegation of                    0            0.00               0             0.00
     noncompliance with a Transit Agency Safety
     Plan......................................
    <bullet> Exert primary responsibility to                  0            0.00               0             0.00
     investigate each Rail Transit Agency
     accident..................................
    <bullet> Enter into agreements with                       0            0.00           6,000       256,200.00
     contractors...............................
    <bullet> Comply with the requirements of              3,840      163,968.00          24,000     1,024,800.00
     the Public Transportation Agency Safety
     Certification Training Program............
Sec.   674.27 State safety program standards:
    <bullet> Develop and adopt program standard           1,400       59,780.00           6,000       256,200.00
     *.........................................
    <bullet> Develop and adopt program                    1,400       59,780.00           6,000       256,200.00
     procedures *..............................
    <bullet> Develop and adopt Safety                         0            0.00           6,000       256,200.00
     Management Systems oversight principles
     and oversight methods *...................
    <bullet> Review and update program standard           2,912      124,342.40             600        25,620.00
     and procedures............................
Sec.   674.31 Triennial audits: general
 requirements:
    <bullet> Conduct Three Year Audit..........           9,216      393,523.20          36,000     1,537,200.00
    <bullet> Document Results and Findings.....          13,440      573,888.00          12,000       512,400.00
Sec.   674.33 Notifications: Accidents and
 other incidents
    <bullet> Receive and track notification of                0            0.00           1,000        42,700.00
     accidents.................................
    <bullet> Report to FTA.....................               0            0.00           1,000        42,700.00
Sec.   674.35 Investigations
    <bullet> Prepare Accident Investigation               5,376      229,555.20          60,000     2,562,000.00
     Report....................................
    <bullet> Review, Approve and/or Adopt                 6,144      262,348.80           6,000       256,200.00
     Accident Investigation Reports............
Sec.   674.37 Corrective action plans..........          15,360      655,872.00          18,000       768,600.00
Sec.   674.39 State Safety Oversight Agency               3,528      150,645.60           2,400       102,480.00
 annual reporting to FTA.......................
Sec.   674.41 Conflicts of interest............               0            0.00             600        25,620.00
Travel.........................................           5,376      229,555.20           1,200        51,240.00
Security.......................................           6,912      295,142.40               0             0.00
                                                ----------------------------------------------------------------
    Total State Oversight Agencies, including           115,396    4,927,409.20         463,220    19,779,494.00
     non-recurring costs (Year 1)..............
                                                ----------------------------------------------------------------
    Total State Oversight Agencies, including           112,596    4,807,849.20         366,020    14,348,054.00
     only recurring costs (Future Years).......
----------------------------------------------------------------------------------------------------------------
* Non-recurring cost.

MAP-21 SSO Grant Program--Costs to Rail Transit Agencies

    As discussed above, this NPRM implements the framework and 
principles of Safety Management Systems. The costs included in the 
table below reflect FTA's estimation regarding the likely requirements 
of SMS adoption by the rail transit agencies in critical areas overseen 
by the SSO program, such as investigations, inspections, and reviews; 
safety data acquisition and analysis; and safety performance 
monitoring. Notably, we have not included the costs to develop and 
update safety plans and procedures under today's NPRM. These costs will 
be included in the Public Transportation Agency Safety Plan rulemaking. 
Therefore, while there are non-recurring costs under part 659, there 
are no non-recurring costs attributable to this NPRM.
    This table depicts general increases on the order of 10 to 20 
percent for the labor hours in most major activities currently 
performed to implement 49 CFR part 659, indicating enhanced activity in 
the specific area based on the more rigorous MAP-21 SSO program, as 
well as the requirements of additional collaboration and coordination 
with a significantly expanded SSO function in the State. Additional 
labor is provided to augment internal safety audit programs, manage 
corrective action plans, and implement hazard management programs. 
Activities

[[Page 11018]]

related to the review and approval of security plans have been removed 
for the MAP-21 program.
    The most significant changes come in the ``accident/incident 
investigation'' and ``maintain safety data'' categories. With the 
enhanced role of the SSO agencies in accident and incident 
investigation, FTA proposes that the amount of time required for rail 
transit agencies to develop reports and document results will decrease. 
Through FTA's adoption of SMS principles, FTA and the SSO agencies 
ultimately will be working to ensure that operations and maintenance 
data and information can be reviewed and assessed in as close to real-
time as possible to identify and address potential safety issues and 
concerns before they result in accidents. Safety performance monitoring 
will become a critical component of the SSO program.
    FTA appreciates that the majority of this activity may be currently 
managed by other departments and personnel outside of the rail transit 
agency's safety department. For example, management information systems 
have already been adopted by rail transit agencies to support vehicle 
and infrastructure maintenance, control center operations, and 
construction management. However, the data collected and maintained in 
these systems may not be routinely assessed for safety issues, 
concerns, hazards or potential impacts. FTA's new MAP-21 program 
addresses NTSB and GAO recommendations that each rail transit agency 
evaluate this data from a safety perspective in as close to real-time 
as possible. Thus, the agency may be overstating the costs to rail 
transit agencies here, but does believe that, even for those rail 
transit agencies that already collect and maintain much of this data, 
there may be some additional costs associated with assessing this data 
for safety purposes in real-time.
    It should be noted that for the MAP-21 columns, this table includes 
60 rail transit agencies, as opposed to the 48 rail transit agencies 
covered by the 49 CFR part 659 requirements. Even if no other changes 
were addressed, increasing the number of covered rail transit agencies 
by 25 percent would raise the total cost of the SSO program 
considerably.

----------------------------------------------------------------------------------------------------------------
                                                   49 CFR part
          Rail transit agency activity              659 labor      49 CFR part    MAP-21 labor     MAP-21 total
                                                      hours      659 total cost       hours            cost
----------------------------------------------------------------------------------------------------------------
Develop system safety program plan *...........           6,272     $267,814.40            ** 0             ** 0
Review and update system safety program plan...           7,550      322,385.00            ** 0             ** 0
Develop system security plan *.................           4,036      172,337.20               0             0.00
Review and update system security plan.........           6,208      265,081.60               0             0.00
Develop program procedures *...................           5,946      253,894.20            ** 0             ** 0
Review and update program procedures...........           4,142      176,863.40            ** 0             ** 0
Travel.........................................           4,146      177,034.20           4,800       204,960.00
Conduct internal safety and security reviews...          15,230      650,321.00          30,000     1,281,000.00
Prepare internal safety and security review               8,160      348,432.00          14,400       614,880.00
 reports.......................................
Prepare annual internal safety and security              10,708      457,231.60          21,000       896,700.00
 review report for state oversight.............
Conduct accident investigations................          30,000    1,281,000.00          24,000     1,024,800.00
Prepare accident investigation reports.........          19,168      818,473.60           3,000       128,100.00
Investigate unacceptable hazardous conditions..          14,030      599,081.00          60,000     2,562,000.00
Prepare unacceptable hazardous condition                 12,032      513,766.40               0             0.00
 reports.......................................
Implement hazard management process............          32,312    1,379,722.40          60,000     2,562,000.00
Prepare and submit corrective action plans.....          19,090      815,143.00          24,000     1,024,800.00
Coordinate hazard management program activities          23,848    1,018,309.60          30,000     1,281,000.00
 with state oversight..........................
Maintain safety data...........................           3,570      152,439.00         240,000    10,248,000.00
Plan and conduct annual emergency preparedness            3,382      144,411.40           4,800       204,960.00
 drill.........................................
Prepare and submit after-action report for                1,090       46,543.00           1,200        51,240.00
 annual emergency drill........................
Maintain security data.........................           3,570      152,439.00               0             0.00
Make submissions to state oversight agency.....           2,618      111,788.60           9,600       409,920.00
                                                ----------------------------------------------------------------
    Total including non-recurring costs (Year           237,108   10,124,511.60         526,800    22,494,360.00
     1)........................................
                                                ----------------------------------------------------------------
    Total including recurring costs only                220,854    9,430,465.80         526,800    22,494,360.00
     (Future Years)............................
----------------------------------------------------------------------------------------------------------------
* Non-recurring cost.
** FTA will include these costs in the upcoming Transit Agency Safety Plan rulemaking.

Total Estimated Impact of NPRM

    Based on the tables provided above, FTA estimates that minimum 
implementation of this NPRM will require a total of approximately $20 
million for the 30 States to implement, and a total of roughly $22 
million for the 60 rail transit agencies to implement.
    Compared to current spending levels of State Safety Oversight 
activities, the proposed rule would require an incremental $9.5 million 
per year on the part of SSOAs and $13.1 million for rail transit 
agencies, compared to current spending levels. This represents a 
combined increase of roughly $23 million per year over current levels.
    In terms of the actual costs to the States, FTA is providing 
approximately $22 million in grant funds each year to the States to 
off-set this NPRM's annual costs. This funding is treated as a transfer 
for the purposes of benefit-cost analysis. In addition, since the 
States already expend approximately $5 million to implement 49 CFR part 
659 requirements, this existing expenditure will more than cover the 20 
percent local match required in FTA's grant program. FTA therefore 
finds that that the States will bear no new net costs as a result of 
this NPRM. With regard to costs to the rail transit agencies, FTA 
currently provides funding that rail transit agencies may use for these 
purposes, but, since there is no safety-focused grant program similar 
to that for SSOs and each rail transit agency receives and uses its 
formula funds differently, we are unable to provide an estimate of how 
much FTA funds will be used here. We request comment on this point and 
also will revisit in the Transit Agency Safety Plan NPRM.

[[Page 11019]]

    FTA believes that a significant portion of the incremental expenses 
may comprise activities that are already performed--and management 
information systems that are already maintained--by rail transit 
departments other than the safety department, such as operations, 
maintenance and performance monitoring. For instance, FTA reviews at 
rail transit agencies and SSO audits confirm that all rail transit 
agencies use and maintain formal systems to track rules checks 
performed on operators; inspections and preventative/corrective 
maintenance activities for vehicles and infrastructure; reports 
regarding the occurrence and cause of events resulting in service 
delays lasting longer than a prescribed period of minutes; and unusual 
occurrences reported during revenue service. Therefore, the cost 
estimate calculated above may overstate the true incremental costs of 
the changes to the SSO program, but is used here to be conservative. 
FTA requests comment on this point.
    Doing more to analyze and assess this information from a safety 
perspective is at the core of SMS, and FTA anticipates that this level 
of active review of operations and maintenance data will ultimately 
result in cost savings for many rail transit agencies, as has been the 
case in the aviation and trucking industries. See, e.g., Federal 
Aviation Administration, Final Regulatory Evaluation: Safety Management 
System for Domestic, Flag, and Supplemental Operations, Docket No. FAA-
2009-0671. Initially, however, FTA anticipates that the rail transit 
agencies will be required to spend an additional $13.1 million per year 
to implement this NPRM, which equates to approximately $228,000 per 
rail transit agency. Larger rail transit agencies will be required to 
assume a larger portion of these costs, while smaller rail transit 
agencies likely will spend considerably less.
    As the 60 rail transit agencies affected by the NPRM gain greater 
experience with proactive safety data analysis focused on safety 
problem identification and the development of mitigation strategies, as 
well as enhanced verification techniques to assess the effectiveness of 
the implementation of these strategies, FTA expects that, as in other 
transportation industries, the rail transit agencies will begin 
receiving greater efficiencies on their return in this investment, not 
just related to safety. However, based on the newness of SMS 
implementation in the rail transit industry and SSO program, FTA does 
not propose including these kinds of operational gains as part of the 
benefits from this NPRM. FTA also has not yet had the opportunity to 
conduct SMS pilots in the rail transit industry which will provide even 
greater clarification regarding the full impacts on both the rail 
transit agencies and SSO program, although the agency is planning on 
conducting pilots to assist the industry with implementing SMS.
    The safety benefits of the proposed changes are difficult to 
estimate quantitatively because they involve numerous small but 
important changes to State and agency safety practices, and because the 
overall rate of serious injuries on rail transit systems is already 
quite low. These changes to the SSO regulations address longstanding 
deficiencies in the current SSO structure and improve the ability of 
SSOAs to carry out their mission of improving safety on rail fixed 
guideway transit systems. In addition, NTSB has advocated for many of 
these changes based on their investigation of rail transit accidents, 
their analysis of the current SSO structure, and their expertise in 
ensuring safe operation across all modes of transportation. FTA 
likewise believes that the revised SSO structure and associated 
activities will enhance the safety of rail fixed guideway transit 
systems, increasing accountability and decreasing transit-related 
incidents, injuries, and fatalities.
    That said, although this rule would not on its own implement SMS, 
it does create the organizational structure needed for SMS to be 
successful. Thus, FTA has considered how other transportation modes 
that are in the process of implementing SMS or similar systematic 
approaches to safety have estimated the benefits of their programs in 
reducing incidents and adverse outcomes. For example, although no two 
programs are identical, the Federal Railroad Administration (FRA) in 
its NPRM implementing its System Safety Program (SSP) (77 FR 55372, 
Sept. 7, 2012) provided anecdotal evidence that the program could lead 
to meaningful reductions in serious crashes. Similarly, in its final 
rule implementing SMS for air carriers, the Federal Aviation 
Administration estimated that its SMS program could yield a 20% 
reduction in crashes. 80 FR 1308, Jan. 8, 2015. Enhancements brought 
about by SMS also have supported transportation and oversight agencies 
in mitigating the impacts of those events that do occur.
    FTA has, therefore, considered what percentage of potential safety 
benefits this rule would need to achieve in order to ``break even'' 
with the costs (including both the transfer of funds from FTA and the 
costs to the SSOs and rail transit agencies themselves) based on two 
different estimates of the potential benefit pool. FTA notes that this 
analysis is not intended to be the full analysis of the potential 
benefits of SMS for transit safety, which will be conducted in our 
subsequent safety rulemakings; rather, it is intended to provide some 
quantified estimate of the potential benefits of the changes to the SSO 
program proposed in this rule. Further, we note that this analysis may 
understate the potential benefits because we did not have information 
on some non-injury related costs associated with many incidents, 
particularly regarding property damage and travel delays. Also, as 
mentioned above, we did not include an estimate of FTA funds provided 
to transit agencies for these activities because, unlike with SSO 
funding, we did not have sufficient certainty on this funding level.
    First, over the last six years, as reported by the SSO agencies in 
their annual reports to FTA, the rail transit industry has averaged 
approximately 975 safety events meeting 49 CFR part 659 accident 
reporting thresholds per year (i.e. what must be reported). In an 
average year, these events result in 135 fatalities (of which 
approximately 85 per year involve suicides and trespassers) and 645 
injuries requiring hospitalization away from the scene. Using 
Departmental guidance regarding the valuation of fatalities and 
injuries,\1\ these incidents have an economic value of $1.865 billion 
per year. Rail transit incidents also entail costs related to vehicle 
and infrastructure damage, delays and disruptions to commuters, and 
emergency response costs. For example, the May 2008 collision between 
two light-rail vehicles in Newton, Massachusetts, caused $8.6 million 
in property damage and caused significant service delays during the 
evening rush hour. These additional incident costs could not be 
comprehensively quantified due to data limitations, and FTA requests 
comment on additional data that may assist it in quantifying this 
aspect of the analysis.
---------------------------------------------------------------------------

    \1\ Rogoff, Peter and Thomson, Kathryn, ``Guidance on Treatment 
of the Economic Value of a Statistical Life (VSL) in U.S. Department 
of Transportation Analyses.'' June 13, 2014. The fatality number is 
$9.2 million. Hospitalized injuries are assumed to be equivalent to 
a ``serious'' injury on the Abbreviated Injury Scale (AIS-3); this 
value is 10.5% of the VSL, or $966,000.
---------------------------------------------------------------------------

    As an illustrative calculation, based on the above analysis, in 
order for the benefits of this rule to break even with the costs to 
both SSOs and rail transit agencies, this rule would only need to 
prevent 1.21% of these accidents per year, which does not include 
potentially significant unquantified costs related to property damage 
and disruption. FTA

[[Page 11020]]

believes that this level of accident reduction will likely be 
attainable based on the NPRM's proposed enhancements to the SSO program 
and the associated improvements in rail transit agency safety practices 
that lend themselves to greater awareness of risks and hazards. This 
figure also does not account for the $22 million FTA provided the SSOs 
or the FTA formula funds provided to the rail transit agencies. If only 
the SSO funds were taken into account, this rule would only need to 
prevent 0.007 of these accidents per year in order to break even with 
the increased costs directly born by the rail transit agencies. A lower 
break even number would exist if FTA were able to provide an estimate 
of the FTA funding used by the rail transit agencies for these 
activities.
    Second, as an alternative, we performed a more narrow analysis of 
the potential safety benefits of the proposed regulation by reviewing 
the rail transit incidents specifically identified by the NTSB as 
related to inadequate safety oversight programs. Of the 19 major rail 
transit accidents the NTSB has investigated (or preliminarily 
investigated) since 2004, five had probable causes that included 
inadequate safety oversight on the part of the rail transit agency or 
FTA. These incidents and the corresponding damages and costs are 
detailed below.

--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                          Moderate         Severe       Cost of property
               Date                               Agency                 Fatalities    Minor injuries     injuries        injuries           damage
--------------------------------------------------------------------------------------------------------------------------------------------------------
2/3/2004..........................  Chicago Transit Authority (CTA)..               0              42               0               0            $62,000
7/11/2006.........................  Chicago Transit Authority (CTA)..               0             125              21               6          1,004,900
6/22/2009.........................  Washington Metropolitan Area                    9              38              12               2         12,000,000
                                     Transit Authority (WMATA).
1/26/2010.........................  Washington Metropolitan Area                    2               0               0               0                  0
                                     Transit Authority (WMATA).
7/20/2010.........................  Miami-Dade Transit (MDT).........               0              16               0               0            406,691
                                                                      ----------------------------------------------------------------------------------
    Total.........................  .................................              11             221              33               8       13.5 million
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Again using Departmental guidance regarding the valuation of 
fatalities and injuries,\2\ FTA used a value of $9.2 million per 
fatality. NTSB's qualitative injury levels were converted to the 
Abbreviated Injury Scale and monetized as follows: Minor is assumed to 
be AIS-1 ($27,000), Moderate is assumed to be AIS-2 ($432,000), and 
Severe is (conservatively) assumed to be AIS-3 ($955,000).
---------------------------------------------------------------------------

    \2\ Id.
---------------------------------------------------------------------------

    As such, the total quantifiable cost for the five incidents is 
approximately $142.6 million (fatalities: $101.2 million, minor 
injuries: $6.0 million, moderate injuries $14.3 million, severe 
injuries: $7.6 million, property damage: $13.5 million) or 
approximately $14.3 million per year over a ten year period. The 
average cost per incident was $28.5 million, plus unquantified losses 
from travel delays and emergency response. The most costly incident, 
the 2009 WMATA crash, had total costs of over $100 million, including 
$91 million in monetized injuries and $12 million in property damage. 
While improved safety oversight cannot necessarily prevent all rail 
transit accidents, preventing even a single incident on the scale of 
the 2009 WMATA crash would yield societal benefits that exceed the 
incremental costs of compliance across multiple years of 
implementation, especially when considering FTA's funding of this 
program. Benefits would also accrue from the prevention of multiple, 
less severe incidents, including those where only property damage or 
travel delays occur. The agency requests comment and information on any 
other accidents that have been identified as being related to 
inadequate safety oversight programs.
    In conducting a break even analysis, as in the above analysis, when 
considering the incremental costs to SSOs for this rule and rail 
transit agencies, this rule would need to prevent 1.6 of the types of 
accidents significant enough to be investigated by NTSB and identified 
as being caused by inadequate safety oversight per year in order to 
break even. Similarly, when FTA funding of the SSOs (but not the rail 
transit agencies) is taken into account, this rule would need to 
prevent 0.91 of these incidents in order to break even. However, we 
believe that including all of the costs to the rail transit agencies 
may overstate the costs in this illustrative analysis and is therefore 
a very conservative analysis. We request comment on this point.

Rulemaking Analyses and Notices

    All comments received on or before the close of business on the 
comment closing date indicated above will be considered and will be 
available for examination in the docket at the above address. Comments 
received after the closing date will be filed in the docket and will be 
considered to the extent practicable. A final rule may be published at 
any time after close of the comment period.

Executive Orders 13563 and 12866; U.S. DOT Regulatory Policies and 
Procedures

    Executive Orders 12866 and 13563 direct Federal agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits--including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity. Also, 
Executive Order 13563 emphasizes the importance of quantifying both 
costs and benefits, reducing costs, harmonizing rules, and promoting 
flexibility. FTA is also required under 49 U.S.C. 5329(h) to ``take 
into consideration the costs and benefits of each action the Secretary 
proposes to take under'' section 5329.
    FTA has determined this rulemaking is a nonsignificant regulatory 
action within the meaning of Executive Order 12866 and is 
nonsignificant within the meaning of the U.S. Department of 
Transportation's regulatory policies and procedures. FTA has determined 
that this rulemaking is not economically significant. The proposals set 
forth in this NPRM will not result in an effect on the economy of $100 
million or more. The proposals set forth in the NPRM will not adversely 
affect the economy, interfere with actions taken or planned by other 
agencies, or generally alter the budgetary impact of any entitlements, 
grants, user fees, or loan programs.

Regulatory Flexibility Act

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

[[Page 11021]]

Oversight funds are eligible States, and the entities that will carry 
out the oversight of rail fixed guideway public transportation--the 
SSOAs--are State agencies. For this reason, FTA certifies that this 
action will not have a significant economic effect on a substantial 
number of small entities.

Unfunded Mandates Reform Act

    This proposed rulemaking would not impose unfunded mandates as 
defined by the Unfunded Mandates Reform act of 1995 (Pub. L. 104-4; 109 
Stat. 48). The Federal share for the grants made under 49 U.S.C. 
5329(e)(6) is eighty percent. This proposed rule will not result in the 
expenditure by State, local, and tribal governments, in the aggregate, 
or by the private sector, of $143.1 million or more in any one year (2 
U.S.C. 1532).

Executive Order 13132 (Federalism)

    This proposed rulemaking has been analyzed in accordance with the 
principles and criteria established by Executive Order 13132 (Aug. 4, 
1999), and FTA has determined that the proposed action would not have 
sufficient Federalism implications to warrant the preparation of a 
Federalism assessment. FTA has also determined that this proposed 
action would not preempt any State law or State regulation or affect 
the States' abilities to discharge traditional State governmental 
functions. Moreover, consistent with Executive Order 13132, FTA has 
examined the direct compliance costs of the NPRM on State and local 
governments and determined that the collection and analysis of the data 
is eligible for Federal funding as part of the State Safety Oversight 
program costs.

Executive Order 12372 (Intergovernmental Review)

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

Paperwork Reduction Act

    In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.; ``PRA'') and the OMB regulation at 5 CFR 1320.8(d), FTA 
is seeking approval from OMB for the Information Collection Request 
abstracted below. FTA acknowledges that this NPRM entails collection of 
information to facilitate State Safety Oversight of rail fixed guideway 
public transportation systems, including, specifically, annual status 
reporting on the safety of rail fixed guideway public transportation 
systems, triennial auditing of rail transit systems' compliance with 
their public transportation agency safety plans, requests for FTA 
certification of State Safety Oversight programs, and completion of 
public transportation safety certification training programs--all of 
which are mandated by 49 U.S.C. 5329(e). Therefore, FTA is seeking 
comment whether the information collected will have practical utility; 
whether its estimation of the burden of the proposed information 
collection is accurate; whether the burden can be minimized through the 
use of automated collection techniques or other forms of information 
technology; and for ways in which the quality, utility, and clarity of 
the information can be enhanced.
    Readers should note that the information collection will be 
specific to each State and its State Safety Oversight Agency (SSOA), to 
facilitate and record the SSOA's exercise of its oversight 
responsibilities. The paperwork burden for each State and its SSOA will 
be proportionate to the number of rail fixed guideway public 
transportation systems within that State, the type of mode of those 
systems (e.g., rapid rail, light rail, or streetcar), and the size and 
complexity of those rail transit systems. Moreover, the labor-burden of 
the reporting requirements such as annual reporting and triennial 
auditing are largely borne by the SSOA staff that will be financed, in 
the main, by the Federal financial assistance under 49 U.S.C. 
5329(e)(6).
    Also, readers should note that FTA already collects information 
from States and SSOAs in accordance with the requirements of 49 U.S.C. 
5330 and the regulations at 49 CFR part 659. Please see FTA's currently 
approved collection, 2132-0558, available at http://www.reginfo.gov/public/do/PRAMain, which describes the SSOAs' development of program 
standards and their review and approval of System Safety Program Plans 
and System Security Plans for rail fixed guideway public transportation 
systems; the triennial, on-site reviews that SSOAs conduct of rail 
transit systems; and various other reporting, such as SSOAs' review and 
approval of accident reports and corrective action plans, and submittal 
of annual reports of safety and security oversight activities and 
certifications of compliance with Section 5330. Most if not all of the 
information collection from States and SSOAs under 49 U.S.C. 5330 and 
49 CFR part 659 will carry over into the new State Safety Oversight 
program codified at 49 U.S.C. 5329 and the specific requirements 
proposed in today's rulemaking.
    Heretofore, there has been no Federal financial assistance 
available to States and their SSOAs to defray the costs of information 
collection under 49 U.S.C. 5330 and the longstanding regulations at 49 
CFR part 659. The costs of information collection associated with 
today's NPRM would be eligible for reimbursement under the SSO grants 
authorized by 49 U.S.C. 5329(e)(6).
    Type of Collection: Rail Fixed Guideway Systems; State Safety 
Oversight.
    Type of Review: OMB Clearance. Updated information collection 
request.
    Summary of the Collection: The information collection includes 
annual status reporting on the safety of rail fixed guideway public 
transportation systems, triennial auditing of rail transit systems' 
compliance with their public transportation agency safety plans, 
requests for FTA certification of State Safety Oversight programs, and 
completion of public transportation safety certification training 
programs.
    Need for and Expected Use of the Information to be Collected: 
Collection of information for this program is necessary to ensure that 
state oversight agencies can perform their designated safety functions. 
Without comprehensive safety information from rail transit agencies, 
State safety oversight agencies would be unable to monitor safety as 
directed by 49 U.S.C. 5326, and without the State safety oversight 
reporting requirements, FTA would be unable to determine each State's 
compliance with 49 U.S.C. 5326(e).
    Respondents: Currently there are 30 States with 60 rail fixed 
guideway public transportation systems. Twenty-eight of these States 
have already established a State Safety Oversight program and an SSOA; 
two more have indicated their intention to do so in the near future. 
The PRA estimate is based on a total of 30 States deploying SSOAs and 
seeking Federal financial assistance under 49 U.S.C. 5329(e)(6), per 
year.
    Frequency: Information will be collected at least once per year.
    Estimated Total Annual Burden Hours: 230,130, estimated as follows: 
Annually, each SSOA would devote approximately 3,962 hours to 
information collection activities for each of the rail transit systems 
in the State's jurisdiction. Combined, the SSOAs would devote 
approximately 118,860 hours on those information collection activities 
that year. The local governments affected by 49 U.S.C. 5329(e) and 
today's proposed rulemaking, including the 60 rail fixed

[[Page 11022]]

guideway public transportation systems, would spend an estimated annual 
total of 111,300 hours on information collection activities, or 
approximately 1,855 hours each. Also, the States and SSOAs would spend 
approximately 50 hours each in the preparation of applications for 
Federal financial assistance for their SSO programs, for a combined 
estimate of 1,500 hours per year. FTA will post the supporting 
documentation for this collection in the docket for this NPRM.

National Environmental Policy Act

    The National Environmental Policy Act of 1969 (42 U.S.C. 4321 et 
seq.) requires Federal agencies to analyze the potential environmental 
effects of their proposed actions in the form of a categorical 
exclusion, environmental assessment, or environmental impact statement. 
This proposed rulemaking is categorically excluded under FTA's 
environmental impact procedure at 23 CFR 771.117(c)(20), pertaining to 
planning and administrative activities that do not involve or lead 
directly to construction, such as the promulgation of rules, 
regulations, and directives. FTA has determined that no unusual 
circumstances exist in this instance, and that a categorical exclusion 
is appropriate for this rulemaking.

Executive Order 12630 (Taking of Private Property)

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

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

    Executive Order 12898 (Feb. 8, 1994) directs every Federal agency 
to make environmental justice part of its mission by identifying and 
addressing the effects of all programs, policies, and activities on 
minority populations and low-income populations. The USDOT 
environmental justice initiatives accomplish this goal by involving the 
potentially affected public in developing transportation projects that 
fit harmoniously within their communities without compromising safety 
or mobility. Additionally, FTA has issued a program circular addressing 
environmental justice in public transportation, C 4703.1, Environmental 
Justice Policy Guidance for Federal Transit Administration Recipients. 
This circular provides a framework for FTA grantees as they integrate 
principles of environmental justice into their transit decision-making 
processes. The Circular includes recommendations for State Departments 
of Transportation, Metropolitan Planning Organizations, and public 
transportation systems on (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.

Executive Order 12988 (Civil Justice Reform)

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

Executive Order 13045 (Protection of Children)

    FTA has analyzed this proposed rulemaking under Executive Order 
13045 (April 21, 1997), Protection of Children from Environmental 
Health Risks and Safety Risks. FTA certifies that this proposed rule 
will not cause an environmental risk to health or safety that may 
disproportionately affect children.

Executive Order 13175 (Tribal Consultation)

    FTA has analyzed this proposed rulemaking under Executive Order 
13175 (Nov. 6, 2000) and finds that the action will not have 
substantial direct effects on one or more Indian tribes; will not 
impose substantial direct compliance costs on Indian tribal 
governments; will not preempt tribal laws; and will not impose any new 
consultation requirements on Indian tribal governments. Therefore, a 
tribal summary impact statement is not required.

Executive Order 13211 (Energy Effects)

    FTA has analyzed this proposed rulemaking under Executive Order 
13211, Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use (May 18, 2001). FTA has determined that 
this action is not a significant energy action under the Executive 
Order, given that the action is not likely to have a significant 
adverse effect on the supply, distribution, or use of energy. 
Therefore, a Statement of Energy Effects is not requirement.

Privacy Act

    In accordance with 5 U.S.C. 553(c), DOT solicits comments from the 
public to better inform its rulemaking process. DOT posts these 
comments, without edit, including any personal information the 
commenter provides, to www.regulations.gov, as described in the system 
of records notice (DOT/ALL-14 FDMS), which can be reviewed at 
www.dot.gov/privacy.

Statutory/Legal Authority for This Rulemaking

    This rulemaking is issued under the authority of section 20021(a) 
of the Moving Ahead for Progress in the 21st Century Act (MAP-21), 
which requires the Secretary of Transportation to prescribe regulations 
for State Safety Oversight of rail fixed guideway public transportation 
systems. The authority is codified at 49 U.S.C. 5329(e)(9)(C). Also, 
the Secretary is authorized to issue regulations to carry out the 
general provisions of the Public Transportation Safety Program pursuant 
to 49 U.S.C. 5329(f)(7).

Regulation Identification Number

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

List of Subjects in 49 CFR Part 674

    Grant Programs--Transportation, Mass Transportation, Reporting and 
recordkeeping requirements, Safety.

    Issued in Washington, DC under the authority delegated at 49 CFR 
1.91.
Therese McMillan,
Acting Administrator.

    For the reasons set forth in the preamble, and under the authority 
of 49 U.S.C. 5329(e), 5329(f), 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 674, as set forth below:

Title 49--Transportation

PART 674--STATE SAFETY OVERSIGHT

Subpart A--General Provisions
Sec.
674.1 Purpose.
674.3 Applicability.
674.5 Policy.
674.7 Definitions.

[[Page 11023]]

674.9 Transition from previous requirements for State safety 
oversight.
Subpart B--Role of the State
674.11 State Safety Oversight Program.
674.13 Designation of oversight agency.
674.15 Designation of oversight agency for multi-state system.
674.17 Use of Federal financial assistance.
674.19 Certification of a State Safety Oversight Program.
674.21 Withholding of Federal financial assistance for 
noncompliance.
674.23 Confidentiality of information.
Subpart C--State Safety Oversight Agencies
674.25 Role of the State Safety Oversight Agency.
674.27 State safety program standards.
674.29 Transit Agency Safety Plans: general requirements.
674.31 Triennial audits: general requirements.
674.33 Notifications: Accidents and incidents.
674.35 Investigations.
674.37 Corrective action plans.
674.39 State Safety Oversight Agency annual reporting to FTA.
674.41 Conflicts of interest.
Appendix A to Part 674--Safety Management Systems Framework

Subpart A--General Provisions


Sec.  674.1  Purpose.

    This part carries out the mandate of 49 U.S.C. 5329(e) for State 
safety oversight of rail fixed guideway public transportation systems.


Sec.  674.3  Applicability.

    This part applies to States with rail fixed guideway public 
transportation systems; State safety oversight agencies that oversee 
the safety of rail fixed guideway public transportation systems; and 
entities that own or operate rail fixed guideway public transportation 
systems with Federal financial assistance authorized under 49 U.S.C. 
Chapter 53.


Sec.  674.5  Policy.

    (a) The Federal Transit Administration (FTA) has adopted the 
principles and methods of Safety Management Systems (SMS) as the basis 
for enhancing the safety of public transportation in the United States. 
All rules, regulations, policies, guidance, best practices, and 
technical assistance administered under the authority of 49 U.S.C. 5329 
will follow the principles and methods of SMS.
    (b) In accordance with 49 U.S.C. 5329(e), a State that has a rail 
fixed guideway public transportation system has primary responsibility 
for overseeing the safety of that rail fixed guideway public 
transportation system. A State safety oversight agency must have 
sufficient authority, resources, and qualified personnel to oversee the 
number, size, and complexity of rail fixed guideway public 
transportation systems that operate within a State.
    (c) FTA will make Federal financial assistance available to help an 
eligible State develop or carry out its State safety oversight program. 
Also, FTA will certify whether a State safety oversight program meets 
the requirements of 49 U.S.C. 5329(e) and is adequate to promote the 
purposes of the public transportation safety programs codified at 49 
U.S.C. 5329.


Sec.  674.7  Definitions.

    As used in this part:
    Accident means an Event that involves any of the following: A 
fatality; one or more persons suffers a serious injury; property or 
equipment damage equal to or greater than $25,000; a mainline 
derailment, occurring at any location; an evacuation of equipment or a 
station to prevent injury or loss of life.
    Accountable Executive means a single, identifiable person who has 
ultimate responsibility for carrying out the Safety Management System 
of a public transportation agency; responsibility for carrying out the 
agency's Transit Asset Management Plan; and control or direction over 
the human and capital resources needed to develop and maintain both the 
agency's Public Transportation Agency Safety Plan, in accordance with 
49 U.S.C. 5329(d), and the agency's Transit Asset Management Plan in 
accordance with 49 U.S.C. 5326.
    Administrator means the Federal Transit Administrator or the 
Administrator's designee.
    Contractor means an entity that performs tasks on behalf of FTA, a 
State Safety Oversight Agency, or a Rail Transit Agency, through 
contract or other agreement.
    Corrective action plan means a plan developed by a Rail Transit 
Agency that describes the actions the Rail Transit Agency will take to 
minimize, control, correct, or eliminate risks and hazards, and the 
schedule for taking those actions. Either a State Safety Oversight 
Agency or FTA may require a Rail Transit Agency to develop and carry 
out a corrective action plan.
    FRA means the Federal Railroad Administration, an agency within the 
United States Department of Transportation.
    FTA means the Federal Transit Administration, an agency within the 
United States Department of Transportation.
    Event means any Accident, Incident or Occurrence.
    Hazard means any real or potential condition that can cause injury, 
illness, or death; damage to or loss of the facilities, equipment, or 
property of a rail fixed guideway public transportation system; or 
damage to the environment.
    Incident means an Event that exceeds the definition of an 
Occurrence, but does not meet the requirements of an Accident. Examples 
include, but are not limited to: A near miss or close call, a railyard 
derailment, non-serious injuries, a violation of a safety standard, or 
equipment or property damage less than $25,000 that affects transit 
operations.
    Individual means a passenger, employee, contractor, pedestrian, 
trespasser, or any person on the property of a rail fixed guideway 
public transportation system.
    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; authorized by 
49 U.S.C. 5329(b).
    Occurrence means an Event with no injuries, where damage occurs to 
property or equipment but does not affect transit operations.
    Passenger means a person who is on board, boarding, or alighting 
from a vehicle on a rail fixed guideway public transportation system 
for the purpose of travel.
    Public Transportation Safety Certification Training Program means 
either the certification training program for Federal and State 
employees, or other designated personnel, who conduct safety audits and 
examinations of public transportation systems, and employees of public 
transportation agencies directly responsible for safety oversight, 
established through interim provisions in accordance with 49 U.S.C. 
5329(c)(2), or the program authorized by 49 U.S.C. 5329(c)(1).
    Public Transportation Agency Safety Plan means the comprehensive 
agency safety plan for a transit agency, including a Rail Transit 
Agency, that is required by 49 U.S.C. 5329(d); based on a Safety 
Management System. For convenience, a Public Transportation Agency 
Safety Plan is referred to as a ``Transit Agency Safety Plan'' 
throughout these regulations for State Safety Oversight.
    Rail fixed guideway public transportation system means any fixed 
guideway system that uses rail, is

[[Page 11024]]

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 control means a method or methods to eliminate or reduce the 
effects of hazards.
    Safety assurance means processes within a Rail Transit Agency's 
Safety Management System that function to ensure the performance and 
effectiveness of safety risk controls, and to ensure that the Rail 
Transit Agency meets or exceeds its safety objectives through the 
collection, analysis, and assessment of information.
    Safety Management System (SMS) means the formal, top-down, 
organization-wide approach to managing safety risk and assuring the 
effectiveness of a Rail Transit Agency's safety risk controls. SMS 
includes systematic procedures, practices, and policies for managing 
risks and hazards.
    Safety policy means a Rail Transit Agency's documented commitment 
to safety, which defines the Rail Transit Agency's safety objectives 
and the accountabilities and responsibilities of its employees in 
regard to safety.
    Safety promotion means a combination of training and communication 
of safety information to support SMS as applied to the Rail Transit 
Agency's rail fixed guideway public transportation system.
    Safety risk management means a process within a Rail Transit 
Agency's SMS that describes the Rail Transit Agency's practice of SMS, 
and its means for identifying hazards and analyzing, assessing, and 
controlling 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 nose);
    (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.
    State means a State of the United States, the District of Columbia, 
Puerto Rico, the Northern Mariana Islands, Guam, American Samoa, and 
the Virgin Islands.
    State Safety Oversight Agency (SSOA) 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 this 
part.
    Transit Agency Safety Plan means the comprehensive agency safety 
plan for a transit agency, including a Rail Transit Agency, that is 
required by 49 U.S.C. 5329(d); based on a Safety Management System. See 
also, Public Transportation Agency Safety Plan.
    Vehicle means any rolling stock used on a rail fixed guideway 
public transportation system, including but not limited to passenger 
and maintenance vehicles.


Sec.  674.9  Transition from previous requirements for State safety 
oversight.

    (a) Pursuant to section 20030(e) of the Moving Ahead for Progress 
in the 21st Century Act (Pub. L. 112-141; July 6, 2012) (``MAP-21''), 
the statute now codified at 49 U.S.C. 5330, titled ``State safety 
oversight,'' will be repealed three years after the effective date of 
the regulations set forth in this part.
    (b) Upon the effective date of the regulations set forth in this 
part, the regulations now codified at part 659 of this chapter will be 
rescinded.

Subpart B--Role of the State


Sec.  674.11  State Safety Oversight Program.

    Within three years of the effective date of this part, every State 
that has a rail fixed guideway public transportation system must have a 
State Safety Oversight Program (SSOP) that has been approved by the 
Administrator. FTA will audit each State's compliance at least 
triennially, consistent with 49 U.S.C. 5329(e)(9). At minimum, an SSOP 
must:
    (a) Explicitly acknowledge the State's responsibility for 
overseeing the safety of the rail fixed guideway public transportation 
systems within the State;
    (b) Demonstrate the State's ability to adopt and enforce Federal 
and relevant State law for safety in rail fixed guideway public 
transportation systems;
    (c) Establish a State safety oversight agency, by State law, in 
accordance with the requirements of 49 U.S.C. 5329(e) and this part;
    (d) Demonstrate that the State has determined an appropriate 
staffing level for the State safety oversight agency commensurate with 
the number, size, and complexity of the rail fixed guideway public 
transportation systems in the State, and that the State has consulted 
with the Administrator for that purpose;
    (e) Demonstrate that the employees and other personnel of the State 
safety oversight agency who are responsible for the oversight of rail 
fixed guideway public transportation systems are qualified to perform 
their functions, based on appropriate training, including the 
successful completion of the Public Transportation Safety Certification 
Training Program; and
    (f) Demonstrate that by law, the State prohibits any public 
transportation agency in the State from providing funds to the State 
safety oversight agency.


Sec.  674.13  Designation of oversight agency.

    (a) Every State that must establish a State Safety Oversight 
Program in accordance with 49 U.S.C. 5329(e) must also establish a 
State Safety Oversight Agency (SSOA) for the purpose of overseeing the 
safety of rail fixed guideway public transportation systems within that 
State. Further, the State must ensure that:
    (1) The SSOA is financially and legally independent from any public 
transportation agency the SSOA is obliged to oversee;
    (2) The SSOA does not directly provide public transportation 
services in an area with a rail fixed guideway public transportation 
system the SSOA is obliged to oversee;
    (3) The SSOA does not employ any individual who is also responsible 
for administering a rail fixed guideway public transportation system 
the SSOA is obliged to oversee;
    (4) The SSOA has authority to review, approve, oversee, and enforce 
the public transportation agency safety plan for a rail fixed guideway 
public transportation system required by 49 U.S.C. 5329(d);
    (5) The SSOA has investigative and enforcement authority with 
respect to the safety of all rail fixed guideway public transportation 
systems within the State;
    (6) At least once every three years, the SSOA audits every rail 
fixed guideway public transportation system's compliance with the 
public transportation agency safety plan required by 49 U.S.C. 5329(d); 
and
    (7) At least once a year, the SSOA reports the status of the safety 
of each rail fixed guideway public transportation system to the 
Governor, the FTA, and the board of directors, or

[[Page 11025]]

equivalent entity, of the rail fixed guideway public transportation 
system.
    (b) At the request of the Governor of a State, the Administrator 
may waive the requirements for financial and legal independence and the 
prohibitions on employee conflict of interest under paragraphs (a)(1) 
and (a)(3) of this section, if the rail fixed guideway public 
transportation systems in design, construction, or revenue operations 
in the State have fewer than one million combined actual and projected 
rail fixed guideway revenue miles per year or provide fewer than ten 
million combined actual and projected unlinked passenger trips per 
year. However:
    (1) If a State shares jurisdiction over one or more rail fixed 
guideway public transportation systems with another State, and has one 
or more rail fixed guideway public transportation systems that are not 
shared with another State, the revenue miles and unlinked passenger 
trips of the rail fixed guideway public transportation system under 
shared jurisdiction will not be counted in the Administrator's decision 
whether to issue a waiver.
    (2) The Administrator will rescind a waiver issued under this 
subsection if the number of revenue miles per year or unlinked 
passenger trips per year increases beyond the thresholds specified in 
this subsection.


Sec.  674.15  Designation of oversight agency for multi-state system.

    In an instance of a rail fixed guideway public transportation 
system that operates in more than one State, all States in which that 
rail fixed guideway public transportation system operates must either:
    (a) Ensure that uniform safety standards and procedures in 
compliance with 49 U.S.C. 5329 are applied to that rail fixed guideway 
public transportation system, through a State safety oversight program 
that has been approved by the Administrator; or
    (b) Designate a single entity that meets the requirements for an 
SSOA to serve as the SSOA for that rail fixed guideway public 
transportation system, through a State safety oversight program that 
has been approved by the Administrator.


Sec.  674.17  Use of Federal financial assistance.

    (a) In accordance with 49 U.S.C. 5329(e)(6), FTA will make grants 
of Federal financial assistance to eligible States to help the States 
develop and carry out their State Safety Oversight Programs. This 
Federal financial assistance may be used for reimbursement of both the 
operational and administrative expenses of State Safety Oversight 
Programs, consistent with the uniform administrative requirements for 
grants to States under 2 CFR parts 200 and 1201. The expenses eligible 
for reimbursement include, specifically, the expense of employee 
training and the expense of establishing and maintaining a State Safety 
Oversight Agency in compliance with 49 U.S.C. 5329(e)(4).
    (b) The apportionments of available Federal financial assistance to 
eligible States will be made in accordance with a formula, established 
by the Administrator, following opportunity for public notice and 
comment. The formula will take into account fixed guideway vehicle 
revenue miles, fixed guideway route miles, and fixed guideway vehicle 
passenger miles attributable to all rail fixed guideway systems within 
each eligible State not subject to the jurisdiction of the Federal 
Railroad Administration.
    (c) The grants of Federal financial assistance for State safety 
oversight shall be subject to terms and conditions as the Administrator 
deems appropriate.
    (d) The Federal share of the expenses eligible for reimbursement 
under a grant for State safety oversight activities shall be eighty 
percent of the reasonable costs incurred under that grant.
    (e) The non-Federal share of the expenses eligible for 
reimbursement under a grant for State safety oversight activities may 
not be comprised of Federal funds, any funds received from a public 
transportation agency, or any revenues earned by a public 
transportation agency.


Sec.  674.19  Certification of a State Safety Oversight Program.

    (a) The Administrator must determine whether a State Safety 
Oversight Program meets the requirements of 49 U.S.C. 5329(e). Also, 
the Administrator must determine whether a State Safety Oversight 
Program is adequate to promote the purposes of 49 U.S.C. 5329, 
including, but not limited to, the National Public Transportation 
Safety Plan, the Public Transportation Safety Certification Training 
Program, and the Public Transportation Agency Safety Plans (``Transit 
Agency Safety Plans'').
    (b) The Administrator must issue a certification to a State whose 
State Safety Oversight Program meets the requirements of 49 U.S.C. 
5329(e). The Administrator must issue a denial of certification to a 
State whose State Safety Oversight Program does not meet the 
requirements of 49 U.S.C. 5329(e).
    (c) In an instance in which the Administrator issues a denial of 
certification to a State whose State Safety Oversight Program does not 
meet the requirements of 49 U.S.C. 5329(e), the Administrator must 
provide a written explanation, and allow the State an opportunity to 
modify and resubmit its State Safety Oversight Program for the 
Administrator's approval. In the event the State is unable to modify 
its State Safety Oversight Program to merit the Administrator's 
issuance of a certification, the Administrator must notify the Governor 
of that fact, and must ask the Governor to take all possible actions to 
correct the deficiencies that are precluding the issuance of a 
certification for the State Safety Oversight Program. In his or her 
discretion, the Administrator may also impose financial penalties as 
authorized by 49 U.S.C. 5329(e), which may include:
    (1) Withholding SSO grant funds from the State;
    (2) Withholding up to five percent of the 49 U.S.C. 5307 Urbanized 
Area formula funds appropriated for use in the State or urbanized area 
in the State, until such time as the SSOP can be certified; or
    (3) Requiring all of the rail fixed guideway public transportation 
systems governed by the SSOP to spend up to 100 percent of their 
Federal funding under 49 U.S.C. chapter 53 for ``safety-related 
improvements'' on their systems, only, until such time as the SSOP can 
be certified.).
    (d) In making a determination whether to issue a certification or a 
denial of certification for a State Safety Oversight Program, the 
Administrator must evaluate whether the cognizant State Safety 
Oversight Agency has sufficient authority, resources, and expertise to 
oversee the number, size, and complexity of the rail fixed guideway 
public transportation systems that operate within the State, or will 
attain the necessary authority, resources, and expertise in accordance 
with a developmental plan and schedule set forth to a sufficient level 
of detail in the State Safety Oversight Program.


Sec.  674.21  Withholding of Federal financial assistance for 
noncompliance.

    (a) In making a decision to impose financial penalties as 
authorized by 49 U.S.C. 5329(e), and determining the nature and amount 
of the financial penalties, the Administrator shall consider the extent 
and circumstances of the noncompliance; the operating budgets of the 
State Safety Oversight Agency and the rail fixed guideway public 
transportation systems that will be affected by the financial 
penalties; and such other matters as justice may require.

[[Page 11026]]

    (b) If a State fails to establish a State Safety Oversight Program 
that has been approved by the Administrator within three years of the 
effective date of this part, FTA will be prohibited from obligating 
Federal financial assistance apportioned under 49 U.S.C. 5338 to any 
entity in the State otherwise eligible to receive that Federal 
financial assistance, in accordance with 49 U.S.C. 5329(e)(3).


Sec.  674.23  Confidentiality of information.

    (a) A State, a State Safety Oversight Agency, or a Rail Transit 
Agency may withhold an investigation report prepared or adopted in 
accordance with these regulations from being admitted as evidence or 
used in a civil action for damages resulting from a matter mentioned in 
the report.
    (b) This part does not require public availability of any data, 
information, or procedures pertaining to the security of a rail fixed 
guideway public transportation system or its passenger operations.

Subpart C--State Safety Oversight Agencies


Sec.  674.25  Role of the State safety oversight agency.

    (a) A State Safety Oversight Agency (SSOA) must establish minimum 
standards for the safety of all rail fixed guideway public 
transportation systems within its oversight. These minimum standards 
must be consistent with the National Public Transportation Safety Plan, 
the Public Transportation Safety Certification Training Program, the 
principles and methods of Safety Management Systems, and all applicable 
Federal and State law.
    (b) Basic principles and methods of Safety Management Systems are 
set forth in an Appendix to this part, the ``Safety Management Systems 
(SMS) Framework.''
    (c) An SSOA must review and approve the Transit Agency Safety Plan 
for every rail fixed guideway public transportation system within its 
oversight. An SSOA must oversee a Rail Transit Agency's execution of 
its Transit Agency Safety Plan. An SSOA must enforce the execution of a 
Transit Agency Safety Plan, through an order of a corrective action 
plan or any other means, as necessary or appropriate. An SSOA must 
ensure that a Transit Agency Safety Plan meets the requirements for 
Public Transportation Agency Safety Plans at 49 U.S.C. 5329(d).
    (d) An SSOA has primary responsibility for the investigation of any 
hazard or risk that threatens the safety of a rail fixed guideway 
public transportation system within its oversight. An SSOA has primary 
responsibility for the investigation of any allegation of noncompliance 
with a Transit Agency Safety Plan. These responsibilities do not 
preclude the Administrator from exercising his or her authority under 
49 U.S.C. 5329(f) or 49 U.S.C. 5330.
    (e) An SSOA has primary responsibility for the investigation of an 
accident on a rail fixed guideway public transportation system. This 
responsibility does not preclude the Administrator from exercising his 
or her authority under 49 U.S.C. 5329(f) or 49 U.S.C. 5330.
    (f) An SSOA may enter into an agreement with a contractor for 
assistance in investigating accidents and incidents and for expertise 
the SSOA does not have within its own organization.
    (g) All personnel and contractors employed by an SSOA must comply 
with the requirements of the Public Transportation Safety Certification 
Training Program.


Sec.  674.27  State safety program standards.

    (a) A State Safety Oversight Agency (SSOA) must adopt and 
distribute a written State safety oversight program standard, 
consistent with the State Safety Oversight Program, the National Public 
Transportation Safety Plan, and the principles and methods of Safety 
Management Systems. This program standard must identify the processes 
and procedures that govern the activities of the SSOA. Also, this 
program standard must identify the processes and procedures a Rail 
Transit Agency must have in place to comply with the program standard. 
At minimum, this program standard must meet the following requirements:
    (1) Program management. The program standard must explain the 
authority of the SSOA to oversee the safety of rail fixed guideway 
public transportation systems; the policies that govern the activities 
of the SSOA; the reporting requirements that govern both the SSOA and 
the rail fixed guideway public transportation systems; and the steps 
the SSOA will take to ensure open, on-going communication between the 
SSOA and every rail fixed guideway public transportation system within 
its oversight.
    (2) Program standard development. The program standard must explain 
the SSOA's process for developing, reviewing, adopting, and revising 
its minimum standards for safety, and distributing those standards to 
the rail fixed guideway public transportation systems.
    (3) Safety Management Systems. The program standard must explain 
how the SSOA will apply the principles and methods of Safety Management 
Systems (SMS) in conducting oversight of Transit Agencies within its 
jurisdiction. The program standard must identify the SSOA official who 
serves as the functional equivalent of an accountable executive in a 
Rail Transit Agency, and all other officials in positions of executive 
leadership in the State or SSOA responsible for carrying out the State 
Safety Oversight Program. The program standard must set an explicit 
policy and objectives for safety in rail fixed guideway public 
transportation throughout the State. The program standard must explain 
the role of the SSOA in overseeing a Rail Transit Agency's practice of 
risk management, safety assurance, and safety promotion, throughout the 
Rail Transit Agency's organization. Basic principles and methods of SMS 
are set forth in an Appendix to this part, the ``System Management 
Systems (SMS) Framework.''
    (4) Oversight of Rail Transit Agency Safety Plans and Transit 
Agencies' internal safety reviews. The program standard must explain 
the role of the SSOA in overseeing a Rail Transit Agency's execution of 
its Transit Agency Safety Plan and any related safety reviews of the 
Rail Transit Agency's rail fixed guideway public transportation system. 
The program standard must describe the process whereby the SSOA will 
receive and evaluate all material submitted under the signature of a 
Rail Transit Agency's accountable executive. Also, the program standard 
must establish a procedure whereby a Rail Transit Agency will notify 
the SSOA before the Rail Transit Agency conducts an internal review of 
any aspect of the safety of its rail fixed guideway public 
transportation system.
    (5) Triennial SSOA audits of Rail Transit Agency Safety Plans. The 
program standard must explain the process the SSOA will follow and the 
criteria the SSOA will apply in conducting a complete audit of the Rail 
Transit Agency's compliance with its Transit Agency Safety Plan at 
least once every three years, in accordance with 49 U.S.C. 5329(d) and 
49 U.S.C. 5329(e)(4)(iv). Alternatively, the SSOA and Rail Transit 
Agency may agree that the SSOA will conduct its audit on an on-going 
basis over the three-year timeframe. The program standard must 
establish a procedure the SSOA and a Rail Transit Agency will follow to

[[Page 11027]]

manage findings and recommendations arising from the triennial audit.
    (6) Accident and incident notification. The program standard must 
establish requirements for a Rail Transit Agency to notify the SSOA of 
accidents and incidents on the Rail Transit Agency's rail fixed 
guideway public transportation system. These requirements must address, 
specifically, the time limits for notification, methods of 
notification, and the nature of the information the Rail Transit Agency 
must submit to the SSOA.
    (7) Investigations. The program standard must identify thresholds 
for incidents and accidents that require a Rail Transit Agency to 
conduct an investigation. Also, the program standard must address how 
the SSOA will coordinate its investigation with a Rail Transit Agency's 
own internal investigation; the role of the SSOA in supporting any 
investigation conducted or findings and recommendations made by the 
National Transportation Safety Board; and procedures for protecting the 
confidentiality of the investigation reports.
    (8) Corrective actions. The program standard must explain the 
process and criteria by which the SSOA may order a Rail Transit Agency 
to develop and carry out a corrective action plan, and a procedure for 
the SSOA to review and approve a corrective action plan. Also, the 
program standard must explain the SSOA's policy and practice for 
tracking and verifying a Rail Transit Agency's compliance with a 
corrective action plan, and managing any conflicts between the SSOA and 
a Rail Transit Agency relating either to the development or execution 
of a corrective action plan or the findings of an investigation.
    (b) At least once a year an SSOA must submit its program standard 
and any referenced program procedures to FTA, with an indication of any 
revisions made to the program standard since the last annual submittal. 
FTA will evaluate the SSOA's program standard as part of its continuous 
evaluation of the State Safety Oversight Program, and in preparing 
FTA's report to Congress on the certification status of that State 
Safety Oversight Program, in accordance with 49 U.S.C. 5329(e)(8).


Sec.  674.29  Transit Agency Safety Plans: General requirements.

    (a) In determining whether to approve a Transit Agency Safety Plan 
for a rail fixed guideway public transportation system, a State Safety 
Oversight Agency (SSOA) must evaluate whether the Transit Agency Safety 
Plan is based on an adequate Safety Management System; is consistent 
with the National Public Transportation Safety Plan; is in compliance 
with the requirements of 49 U.S.C. 5329(d), and the program standard 
set by the SSOA.
    (b) In determining whether a Transit Agency Safety Plan is based on 
an adequate Safety Management System, an SSOA must determine, 
specifically, whether the Transit Agency Safety Plan sets forth a 
sufficiently explicit safety policy for the rail fixed guideway public 
transportation system; a sufficiently explicit process for safety risk 
management, with adequate means of risk control for the rail fixed 
guideway public transportation system; adequate means of safety 
assurance for the rail fixed guideway public transportation system; and 
adequate means of safety promotion to support the execution of the 
Transit Agency Safety Plan by all employees, agents, and contractors 
for the rail fixed guideway public transportation system.
    (c) In an instance in which an SSOA does not approve a Transit 
Agency Safety Plan, the SSOA must provide a written explanation, and 
allow the Rail Transit Agency an opportunity to modify and resubmit its 
Transit Agency Safety Plan for the SSOA's approval.


Sec.  674.31  Triennial audits: General requirements.

    At least once every three years, a State Safety Oversight Agency 
(SSOA) must conduct a complete audit of a Rail Transit Agency's 
compliance with its Transit Agency Safety Plan. Alternatively, an SSOA 
and a Rail Transit Agency may agree that the SSOA will conduct the 
audit on an on-going basis over the three-year timeframe. At the 
conclusion of the three-year audit cycle, the SSOA shall issue a report 
with findings and recommendations arising from the audit, which must 
include, at minimum, an analysis of the effectiveness of the Transit 
Agency Safety Plan, recommendations for improvements, and a corrective 
action plan, if necessary or appropriate. The Rail Transit Agency must 
be given an opportunity to comment on the findings and recommendations.


Sec.  674.33  Notifications: Accidents and Incidents.

    (a) Two-hour notification. In addition to the requirements for 
accident notification set forth in a State Safety Oversight Program 
standard, a Rail Transit Agency must notify both the State Safety 
Oversight Agency (SSOA) and the Administrator within two hours of any 
Accident or Incident occurring on a rail fixed guideway public 
transportation system. The criteria and thresholds for Accident or 
Incident notification and reporting are defined in a reporting manual 
developed for the electronic reporting system specified by FTA as 
required in Sec.  674.39(b).
    (b) FRA notification. In any instance in which a Rail Transit 
Agency must notify the Federal Railroad Administration (FRA) of an 
Accident or Incident as defined by 49 CFR 225.5 (i.e., shared use of 
the general railroad system trackage or corridors), the Rail Transit 
Agency must also notify the SSOA and the Administrator of the Accident 
or Incident within the same time frame as required by the FRA.


Sec.  674.35  Investigations.

    (a) A State Safety Oversight Agency (SSOA) must conduct an 
independent investigation of any Accident or Incident that is reported 
to the SSOA and the Administrator in accordance with Sec.  674.33(a). 
In any instance in which a Rail Transit Agency is conducting its own 
internal investigation of the Accident or Incident, the SSOA and the 
Rail Transit Agency must coordinate their investigations in accordance 
with the State safety oversight program standard and any agreements in 
effect.
    (b) Within a reasonable time, an SSOA must issue a written report 
on its investigation of an Accident or Incident in accordance with 
established reporting requirements. The report must describe the 
investigation activities; identify the factors that caused or 
contributed to the Accident or Incident; and set forth a corrective 
action plan, as necessary or appropriate. The SSOA must formally adopt 
the report of an Accident or Incident and transmit that report to the 
Rail Transit Agency for review and concurrence. If a Rail Transit 
Agency does not concur with an SSOA's report, the SSOA may allow the 
Rail Transit Agency to submit a written dissent from the report, which 
may be included in the report, in the discretion of the SSOA.
    (c) All personnel and contractors that conduct investigations on 
behalf of an SSOA must be trained to conduct investigations in 
accordance with the Public Transportation Safety Certification Training 
Program.


Sec.  674.37  Corrective action plans.

    (a) In any instance in which a Rail Transit Agency must develop and 
carry out a corrective action plan, the State Safety Oversight Agency 
(SSOA) must review and approve the plan before the Rail Transit Agency 
carries out the plan. A corrective action plan must describe, 
specifically, the actions the Rail Transit

[[Page 11028]]

Agency will take to minimize, control, correct, or eliminate the risks 
and hazards identified by the plan, the schedule for taking those 
actions, and the individuals responsible for taking those actions. The 
Rail Transit Agency must periodically report to the SSOA the Rail 
Transit Agency's progress in carrying out the corrective action plan. 
The SSOA may monitor the Rail Transit Agency's progress in carrying out 
the corrective action plan through unannounced, on-site inspections, or 
any other means the SSOA deems necessary or appropriate.
    (b) In any instance in which a safety Event on the Rail Transit 
Agency's rail fixed guideway public transportation system is the 
subject of an investigation by the National Transportation Safety Board 
(NTSB), the SSOA must evaluate whether the findings or recommendations 
by the NTSB require a corrective action plan by the Rail Transit 
Agency, and if so, the SSOA must order the Rail Transit Agency to 
develop and carry out a corrective action plan.


Sec.  674.39  State Safety Oversight Agency annual reporting to FTA.

    (a) On or before March 15 of each year, a State Safety Oversight 
Agency (SSOA) must submit the following material to FTA:
    (1) The State safety oversight program standard adopted in 
accordance with Sec.  674.27, with an indication of any changes to the 
program standard during the preceding twelve months;
    (2) Evidence that each of its employees and contractors is in 
compliance with the requirements of the Public Transportation Safety 
Certification Training Program;
    (3) A publicly available report that summarizes its oversight 
activities for the preceding twelve months, describes the causal 
factors of accidents or incidents identified through investigation, and 
identifies the status of corrective actions, changes to Transit Agency 
Safety Plans, and the level of effort by the SSOA in carrying out its 
oversight activities;
    (4) A summary of the triennial audits completed during the 
preceding twelve months, and the Transit Agencies' progress in carrying 
out corrective action plans arising from triennial audits conducted in 
accordance with Sec.  674.31;
    (5) Evidence that the SSOA has reviewed and approved any changes to 
the Transit Agency Safety Plans during the preceding twelve months; and
    (6) A certification that the SSOA is in compliance with the 
requirements of this part.
    (b) These materials must be submitted electronically through a 
reporting system specified by FTA.


Sec.  674.41  Conflicts of interest.

    (a) A State Safety Oversight Agency (SSOA) must be financially and 
legally independent from any rail fixed guideway public transportation 
system under the oversight of the SSOA, unless the Administrator has 
issued a waiver of this requirement in accordance with Sec.  674.13(b).
    (b) An SSOA may not employ any individual who provides services to 
a rail fixed guideway public transportation system under the oversight 
of the SSOA, unless the Administrator has issued a waiver of this 
requirement in accordance with Sec.  674.13(b).
    (c) A contractor may not provide services to both an SSOA and a 
rail fixed guideway public transportation system under the oversight of 
that SSOA.

Appendix A to Part 674 to Part 674--Safety Management Systems (SMS) 
Framework

I. Overview

    The Federal Transit Administration (FTA) is adopting the 
principles and methods of Safety Management Systems (SMS) as the 
basis for the National Public Transportation Safety Program. With a 
focus on organization-wide safety policy, proactive hazard 
management, strong safety communication between workers and 
management, targeted safety training, and clear accountabilities and 
responsibilities for critical safety activities, SMS provides an 
enhanced structure for addressing the safety provisions specified in 
the Moving Ahead for Progress in the 21st Century Act (MAP-21).
    SMS is a formal, top-down, organization-wide approach to 
managing safety risks and assuring the effectiveness of safety risk 
mitigations. The specific components and sub-components of FTA's SMS 
framework are discussed in Section V of this Appendix.

II. Background

    Building on the public transportation industry's four decades of 
experience with system safety, SMS supplements traditional 
engineering processes by integrating management systems and 
organizational culture into critical safety risk management and 
assurance functions. As a result, SMS ensures that each public 
transportation agency, no matter its size or service environment, 
has the necessary organizational structures, accountabilities, 
activities and tools in place to direct and control resources to 
optimally manage safety.
    Focusing on collaboration and information sharing, SMS helps 
management and labor work together to control risk better, detect 
and correct safety problems earlier, share and analyze safety data 
more effectively, and measure safety performance more clearly. The 
ultimate goal of SMS is to ensure that the public transportation 
agency has an inclusive and effective process to direct resources to 
optimally manage safety.
    SMS establishes lines of safety accountability throughout an 
organization, starting at the executive management level, and 
provides a structure to support a sound safety culture from the 
front-line to the boardroom. SMS enables agencies to address 
organizational deficiencies that may lead to safety issues or 
unidentified safety risks, identify system-wide trends in safety, 
and manage the potential consequences of hazards before they result 
in incidents or accidents.
    SMS is scalable to organizations of any size and flexible enough 
to be effective in all transit environments, from the largest urban 
operator to the smallest rural transit system provider. SMS also 
provides oversight agencies with new tools, approaches, and 
opportunities to align safety priorities and promote continuous 
improvement.
    In the public transportation safety provisions of the Moving 
Ahead for Progress in the 21st Century Act (MAP-21), FTA, the States 
and the public transportation industry have been presented with a 
rare opportunity to implement a modern regulatory framework that 
will help a safe industry become even safer. Adopting SMS principles 
will further deepen the industry's commitment to the safety of its 
passengers, employees, equipment and facilities and will strengthen 
its core competencies in hazard identification, safety data 
acquisition and analysis, and internal auditing. Most significantly, 
SMS offers the promise of a stronger culture for employees and 
managers to work together to solve safety problems.

III. Scalability and Flexibility

    Service providers within the public transportation industry can 
vary greatly based on size, complexity and operating 
characteristics. Transit agency management needs processes, 
activities and tools that scale to size, complexity and uniqueness 
of the transit system. SMS provides such an approach. SMS is 
flexible, and can be scaled to the mode, size, and complexity of any 
transit operator, in any environment--urban, suburban, or rural. The 
extent to which the transit agency's SMS processes, activities and 
tools are used and documented will vary from agency to agency. For a 
small bus operation, that SMS is going to be simple and 
straightforward. For a larger transit agency with hundreds or 
thousands of employees and multiple modes, that system is going to 
be more complicated.
    SMS scales itself to reflect the size and complexity of the 
operation, but the fundamental accountability remains the same. 
FTA's SMS Framework establishes the accountabilities, processes and 
activities necessary to implement an effective SMS. However, the 
transit agency will determine the level of detail necessary to 
identify and evaluate their own unique safety risks and target their 
resources to manage those safety risks.

IV. Executive Management Commitment

    SMS establishes lines of safety accountability throughout an 
organization,

[[Page 11029]]

particularly at the senior management level, and provides a 
structure to support a sound safety culture. Because SMS is a 
management approach, safety accountability must reside at the 
highest levels of management within a transit agency. In FTA's SMS 
Framework, this would be the Accountable Executive. Typically, the 
Accountable Executive will be the head of a transit agency, its 
Chief Executive Officer, President, General Manager, or Executive 
Director. Whatever the person's job title, the Accountable Executive 
plays the central role in developing and carrying out an SMS. 
Without the Accountable Executive's active endorsement and 
acceptance of accountability for the safety performance of a public 
transportation agency, an SMS cannot be effective. The extent to 
which an Accountable Executive will be involved in day-to-day SMS 
activities will depend both on the individual executive and the size 
and complexity of the organization.
    SMS does not require an Accountable Executive to be an expert in 
safety. Rather, the Accountable Executive must understand how the 
SMS works in his or her organization; know the key personnel to call 
upon for evaluating safety information; and grasp the significant 
safety issues that face the organization. The Accountable Executive 
should use the reports and analysis performed as part of the SMS 
process to support the agency's decision-making. For an Accountable 
Executive, safety information, like financial, schedule and service 
information, is an integral part of how resources are allocated, 
budgets are set, and risks are managed.

V. Key Components and Functional Elements of a Safety Management System

    As depicted below, FTA's SMS Framework is comprised of four key 
components and eleven sub-components that work together to refine, 
reinforce, and sustain the implementation of an SMS throughout a 
transit agency:
    (1) Safety Management Policy,
    (2) Safety Risk Management,
    (3) Safety Assurance, and
    (4) Safety Promotion.
    The component Safety Management Policy provides for the 
foundations of a public transportation agency's system for the 
management of safety. This component encompasses the agency's 
commitment to achieve explicit safety objectives and safety 
performance targets, as well as the agency's compromise to provide 
the necessary organizational structures to accomplish them. Under 
this component, senior leadership and employee responsibilities for 
the management of safety throughout the agency are respectively and 
distinctly established. This component also commits senior 
leadership to actively engage in the oversight of the agency's 
safety performance, by requiring regular review of the safety 
management policy statement, budget, and program by a designated 
Accountable Executive.
    The sub-components of the Safety Management Policy component 
are:
    Safety management policy statement--Clearly, succinctly and 
unambiguously frames the fundamentals upon which the transit agency 
will build and operate its SMS, documents management's commitment to 
the SMS, and inserts the management of safety at the same level of 
the topmost business processes of the transit agency.
    Critical to the value of the safety management policy statement, 
and to the operation of the SMS overall, is the introduction of an 
unambiguous clause reflecting executive level support for an 
effective employee safety reporting program.
    The safety management policy statement also documents 
management's commitment to continuous safety improvement, as well as 
to the continuous improvement of the safety management system 
itself.
    The Accountable Executive signs the safety management policy 
statement, which is distributed, with visible support from executive 
management, throughout the transit agency.
    Safety accountabilities and responsibilities--An explicit 
definition of the lines of accountability and responsibility for the 
management of safety within the transit agency, as well as the 
authorities required to deliver accountabilities and discharge 
responsibilities.
    This sub-component provides for the identification of an 
Accountable Executive and the definition of the required 
accountabilities, responsibilities and authorities of the post 
holder. The Accountable Executive is ultimately accountable for the 
implementation and continuous operation of the transit agency's SMS, 
ensuring that the transit agency has allocated resources and 
implemented mechanisms for the efficient and effective management of 
safety through its SMS to an extent commensurate to its needs, 
possibilities and constraints.
    The sub-component also provides for the appointment of a subject 
matter expert for the implementation and day-to-day operation of the 
SMS, the lines of relationship of the post holder with the 
Accountable Executive and the transit agency's governance structure, 
and the appointment of the staff necessary to support the post 
holder in the day-to-day operation of the SMS.
    It lastly provides for the definition of accountabilities, 
responsibilities and authorities of executive and senior management 
regarding the effective and efficient operation of the SMS.
    While safety management accountabilities, responsibilities and 
their delegation, and authorities may vary from agency to agency, 
they must nevertheless be defined and implemented.
    Integration with public safety and emergency management--All 
transit agencies have some level of emergency plans, procedures and/
or protocols that direct both internal emergency response to transit 
related events, and external emergency response in coordination with 
Local Emergency Management for community-wide emergency activities. 
Integration of plans, procedures and protocols through specific SMS-
related activities provides a 360-degree vision of how the transit 
agency meets its overall safety emergency management 
responsibilities.
    SMS documentation and records--SMS activities must be formally 
documented and available for reference throughout the organization. 
Therefore, a formal system of records and documentation control is 
an important element within the operation of SMS.
    This sub-component provides for the requirements of the agency 
to document its overall approach to the management of system, the 
activities for SMS implementation and its subsequent day-to-day 
operation, and the activities or procedures for the management of 
new or revised safety requirements, regulatory or otherwise.
    While the extent and complexity of the SMS documentation will be 
commensurate to the agency's size and complexity, SMS documentation 
and records must be readily available to all those with 
accountabilities for SMS performance or responsibilities for SMS 
implementation and operation.
    The component Safety Risk Management provides for the activities 
and tools a transit agency needs in order to identify precursors of 
safety concerns that might present during service delivery as well 
as their supporting operations. This allows a transit agency to 
anticipate the potential negative consequences of safety concerns, 
by evaluating whether it has taken enough precautions to control the 
potential consequences of identified safety concerns.
    Safety risk management is an ongoing and never-ending process. 
Safety risk management involves activities that allow the 
identification of hazards associated with the operation and 
maintenance of a public transportation system. Once hazards are 
identified, the Safety Risk Management process provides for the 
analysis of the potential consequences of identified hazards, for 
the evaluation of the safety risk of the potential consequences, and 
lastly for the development and implementation safety risk 
mitigations to address the anticipated, potential consequences of 
hazards.
    The sub-components of Safety Risk Management component are:
    Hazard identification and analysis--Provides for the critical 
first two steps in the SRM process. Under SMS, these steps help a 
transit agency identify and address concerns before they escalate 
into incidents, and provide a foundation for the evaluation 
activities that come next. It is important that hazard 
identification and analyses are supported agency-wide. Safety 
concerns and issues are an inevitable part of transit operations. 
Only after hazards are identified, can they be analyzed. Therefore, 
an explicit hazard identification program is critical. In this 
respect, a transit agency's employees are an irreplaceable asset for 
hazard identification.
    Safety risk evaluation and mitigation--Safety risk evaluation 
provides for the evaluation of the magnitude of the potential 
consequence of identified hazards. The term safety risk refers to 
the likelihood that people could be harmed or equipment could be 
damaged by the potential consequences of a hazard. Therefore, safety 
risk is expressed and measured by the predicted probability and 
severity of the hazard's potential

[[Page 11030]]

consequences. Safety risk evaluation must include the evaluation of 
existing mitigations to help determine whether the potential 
consequences of the hazard must be further mitigated. Safety risk 
mitigation is an action or resource which, when applied to an 
evaluated safety risk, reduces the probability and/or severity of 
the potential consequence of a hazard. Safety risk mitigation 
enables a transit agency to actively ``manage'' safety risk in a 
manner that is aligned with its safety performance targets and 
consists of initial, ongoing and revised mitigations.
    The component Safety Assurance ensures that chosen mitigations 
are appropriate and effective in addressing the evaluated safety 
risks, and generates confidence that the SMS contributes to the 
agency meeting its safety objectives and safety performance targets. 
This is achieved through the collection, analysis, and assessment of 
safety data. Safety Assurance is performed through inspections, 
observations, and auditing activities to support safety oversight 
and performance monitoring. Safety Assurance also helps a transit 
agency evaluate whether or not an anticipated change may impact 
safety.
    The sub-components of the Safety Assurance component are:
    Safety performance monitoring and measurement--An ongoing 
activity that ensures senior management has the data and information 
it needs to measure whether safety risk mitigations and safety-
related activities are appropriate and effective. Safety performance 
monitoring does not as much involve monitoring individuals, but 
rather monitoring the safety performance of the organization itself.
    Management of change--SMS places emphasis on managing change. 
There is a very simple reason for this. Whenever change is 
introduced within a public transportation agency, there is the 
potential that the change may impact safety by impacting existing 
safety risk mitigations. Therefore, the safety assurance component 
of an effective SMS will evaluate the anticipated change and, if it 
might impact safety, ensure that it is further evaluated through the 
transit agency's safety risk management process.
    Continuous improvement--Ensures constant improvement in the 
functioning of the entire SMS and includes ongoing management 
support to continuously monitor SMS implementation. SMS evaluation 
is necessary to ensure that the SMS continues to meet its core 
safety objectives; transit agency safety performance is monitored 
against its safety performance targets, and identified weaknesses 
are immediately addressed.
    The component Safety Promotion requires a combination of 
training and communication of safety information to employees to 
heighten the efficiency and effectiveness of the transit agency's 
SMS. Safety promotion provides visibility and knowledge of executive 
management's commitment to safety performance and an effective SMS 
throughout the transit agency. It typically includes formal and 
informal platforms for the communication of safety management 
information throughout the organization, safety management training 
for employees, training on employee roles and responsibilities 
within the SMS, and training on the mechanism for employees to 
report safety concerns.
    Safety promotion is a critical component of an efficient and 
effective SMS, setting the tone for the transit agency's safety 
management activities and helping to build a positive safety 
culture.
    The two sub-components of the Safety Promotion component are:
    Safety communication--Critical to maintaining the two-way 
feedback loop between front-line employees and management and 
establishing a safety culture that promotes the effective reporting 
of safety concerns or issues. Effective safety communication and SMS 
education will ensure that personnel are aware of the SMS and their 
role within it. It also ensures that safety critical information is 
conveyed in a timely manner, and effectively explains why particular 
safety actions are taken and why safety procedures are introduced or 
changed.
    Competencies and training--Provides for the development, through 
training, of key safety management competencies essential for the 
effective implementation and operation of an SMS, including safety 
reporting competencies and safety data management competencies. Each 
competency should be primarily aimed at a specific employee level.
    At the front-line employee level, safety management training 
should provide for the development of safety reporting competencies, 
i.e. employees should receive formal training on the expected 
contents of employee safety reporting (what to report; what not to 
report) and the procedures established for reporting. At the subject 
matter expert level (key safety management staff), formal training 
should develop safety data management competencies, i.e. how to 
analyze safety data, how to extract information, and how to turn 
safety information into safety intelligence for senior management 
decision-making. This also includes formal training to develop 
safety data collection, storage and retrieval competencies.

[FR Doc. 2015-03841 Filed 2-26-15; 8:45 am]
BILLING CODE P


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